# Fire rebuild to include 20% upgrades?



## Robert (Jul 29, 2018)

I've been asked to develop a scope of work for a recent kitchen fire in a restaurant (California). I have not seen the space yet so details are vague. The client wants to rebuild the kitchen, like for like, no changes. Do I need to include 20% of the rebuilding cost for accessibility upgrades in other parts of the restaurant that were not affected by the fire? If so, do fire insurance companies cover that part of the scope for the owner? Thank you.


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## conarb (Jul 29, 2018)

On the insurance question, after the Oakland Hills Fire California passed a law requiring insurance companies to offer policies that cover current code compliance, so the answer to you question is "depends upon the insurance policy".


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## Robert (Jul 29, 2018)

Thanks. I'll ask about the Code upgrade option on their policy.


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## ADAguy (Jul 30, 2018)

Was the place ADA compliant prior to the fire (smiling)?
If not, now is the chance to remove existing barriers to access.


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## conarb (Jul 30, 2018)

ADAguy said:


> Was the place ADA compliant prior to the fire (smiling)?
> If not, now is the chance to remove existing barriers to access.



The Oakland Hills Fire was in 1991, the ADA 1990, the law was passed a few years after the fire when  almost all burned-out residents found that their insurance didn't cover today's codes (mostly seismic).


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## mark handler (Jul 30, 2018)

Robert said:


> I've been asked to develop a scope of work for a recent kitchen fire in a restaurant (California). I have not seen the space yet so details are vague. The client wants to rebuild the kitchen, like for like, no changes. Do I need to include 20% of the rebuilding cost for accessibility upgrades in other parts of the restaurant that were not affected by the fire? If so, do fire insurance companies cover that part of the scope for the owner? Thank you.


According the to the CA code, yes, it includes this type of repair.


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## Rick18071 (Jul 30, 2018)

The IBC only requires the 20% for Alterations affecting an area containing a primary function.The kitchen is not an area containing a primary function per definition.

If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.


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## Robert (Jul 30, 2018)

Rick, that makes sense. ADA guy, I agree any barriers I see during my walk through will be addressed.


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## JBI (Jul 31, 2018)

Just remember that 'repairs' is a defined term in the IEBC and that may determine whether the work is categorized as a 'repair' or and alteration.


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## steveray (Jul 31, 2018)

Without knowing all the details, I might agree with Rick, but Mark knows Cali specific pretty well....


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## mark handler (Jul 31, 2018)

Rick18071 said:


> The IBC only requires the 20% for Alterations affecting an area containing a primary function.The kitchen is not an area containing a primary function per definition.
> 
> If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.


I disagree
A "primary function" of a Restarant is *preparing *and serving food, the kitchen is *"primary"* to a restaurant and many times larger than the service area for customers.


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## mark handler (Jul 31, 2018)

Rick18071 said:


> The IBC only requires the 20% for Alterations affecting an area containing a primary function. The kitchen is not an area containing a primary function per definition.
> 
> If this is just repairs and only restoring to the what was there before with no changes, and not an alteration the 20% is not required.


The CA code does not say anything about the _*"...affecting an area containing a primary function...."*_
Nor does it say the 20% need be spent in the area of alteration or repair.


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## Pcinspector1 (Jul 31, 2018)

Mark could you give an example of how the 20% rule would work? 

Could I assume that this restaurant does not not have ADA compliant restrooms costing the owner additional $$$ and all he wants is to get back in business after a kitchen fire?


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## ADAguy (Jul 31, 2018)

Though the "code" does not have a retroactive requirement with regards to Ch 11B, the owner is still (has always been) obligated under ADA to remove "existing" barriers to access and the "repaired" areas must comply with current CBC for alterations.
MH, see any exceptions to this?


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## conarb (Jul 31, 2018)

steveray said:


> Without knowing all the details, I might agree with Rick, but Mark knows Cali specific pretty well....



Yes, but Mark is also a total advocate of disability codes, right or wrong, his interpretation will always be on the side of more and stricter disability codes, I have read that over 90% of disibility cases that do go to court the owner wins.

All laws and codes can be interpreted differently, even judges, look at the 5 to 4 decisions coming down from the Supreme Court.  As architects and contractors we have a fiduciary obligation to act in the best interests of our clients, Robert's case is on point, he has to provide a scope of work in the best interests of his client, not in accord with his personal, religious, or political beliefs.


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## Pcinspector1 (Jul 31, 2018)

Pcinspector1 said:


> give an example of how the 20% rule would work?


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## mark handler (Jul 31, 2018)

Pcinspector1 said:


> Mark could you give an example of how the 20% rule would work?
> Could I assume that this restaurant does not have ADA compliant restrooms costing the owner additional $$$ and all he wants is to get back in business after a kitchen fire?


You could assume that, the priorities for "upgrades" are given to those elements that will provide the greatest access in the following order:

An accessible entrance;
An accessible route to the altered area;
At least one accessible restroom for each sex or one accessible unisex (single-user or family) restroom;
Accessible telephones;
Accessible drinking fountains; and
When possible, additional accessible elements such as parking, signs, storage and alarms.
The total could be spent on fixing the entrance.


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## Pcinspector1 (Jul 31, 2018)

So... if you get the accessible entrance, the route and the bathrooms and the 20% is used up for these ADA upgrades, the owner can proceed? 

The plan is reviewed and the elements are enforced by the AHJ, or do the plans go to an ADA advisory board or something like that for approval?


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## conarb (Jul 31, 2018)

Pcinspector1 said:


> The plan is reviewed and the elements are enforced by the AHJ, or do the plans go to an ADA advisory board or something like that for approval?



You have hit on the problem, there is no real appelate board, yes I know, appeals can be demanded, but the appellate board is usually set up with three members of the city council or board of supervisors, people with no expertise.   What one AHJ may demand another right next to it won't, different AHJs interpret codes and laws differently.


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## JPohling (Jul 31, 2018)

I would guess that you are going to be over the threshold amount for these repairs so your looking at 100% compliance....


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## conarb (Jul 31, 2018)

JPohling said:


> I would guess that you are going to be over the threshold amount for these repairs so your looking at 100% compliance....


I disagree:

See if the insurance policy will cover code updates.
If it doesn't then does the restaurant have money to fight in court?
If it does fight on the basis of ambiguity, if the AHJ attempts to force compliance by holding up the permit bring an action against the AHJ, most city attorneys won't spend the money to defend a legal action and will settle.  AHJs have huge pension liability problems and won't waste money on litigation, on the other hand if their in-house legal staff has nothing to do they just might try to handle it themselves. 

In any event settlement is an option at any point, threaten litigation and offer to do something minor, if that doesn't work file suit then offer to settle, many cases like this are settled the day of trial.


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## Rick18071 (Jul 31, 2018)

Just a  solid gold accessible toilet may give you the 20%.


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## mtlogcabin (Jul 31, 2018)

We just went through this with a local restaurant. The bathrooms where next to the kitchen and the walls where damaged by fire and smoke. They exceeded the 20% amount making the 2 restrooms accessible and that is all we got at this time. Is the route to the restrooms accessible? Yes. Could it have been made better? Yes. Did I have the authority to require more? No.


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## Pcinspector1 (Jul 31, 2018)

Rick18071 said:


> Just a  solid gold accessible toilet may give you the 20%.



I'd be happy if they'd put lever handles on and install their ADA signage. Gold is optional here.


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## Rick18071 (Aug 1, 2018)

What I meant was the code doesn't care how much you get done for the 20%, just how much you spend. So if you get one very expensive idem like an accessible gold flush handle, platinum accessible sign, silver grab bar, or an accessible stain glass door it might be enough to reach the 20% without doing a lot of work.


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## mark handler (Aug 1, 2018)

Rick18071 said:


> What I meant was the code doesn't care how much you get done for the 20%, just how much you spend. So if you get one very expensive idem like an accessible gold flush handle, platinum accessible sign, silver grab bar, or an accessible stain glass door it might be enough to reach the 20% without doing a lot of work.


It does care
*And it cares that you get the maximum access from your buck.
*



mark handler said:


> You could assume that, the priorities for "upgrades" are given to those elements that will *provide the greatest access in the following order:*


​


mark handler said:


> An accessible entrance;
> An accessible route to the altered area;
> At least one accessible restroom for each sex or one accessible unisex (single-user or family) restroom;
> Accessible telephones;
> ...


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## conarb (Aug 1, 2018)

mark handler said:


> It does care
> *And it cares that you get the maximum access from your buck.*



Who determines that?  I certainly hope it's not some government employee with prejudicial agenda. Just think what could happen if a disability activist got a job as a CBO.


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## Rick18071 (Aug 2, 2018)

You could spend the 20% on just a foundation for an accessible elevator or part of an accessible ramp and stop there. The code just cares how much is spent, it doesn't need to be finished.


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## mark handler (Aug 2, 2018)

Rick18071 said:


> You could spend the 20% on just a foundation for an accessible elevator or part of an accessible ramp and stop there. The code just cares how much is spent, it doesn't need to be finished.


I disagree
An unfinished project provides zero access, which is the intent of the code and the law.
As stated in previous posts,  the money needs to be spent on items that give you the most access.
A foundation to an unfinished portion give no access.


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## mp25 (Aug 2, 2018)

mark handler said:


> A foundation to an unfinished portion give no access.



not now... but during the next renovation, the 20% at that time might finish the job.

I have struggled with the interpretation of this rule as well. Given that there is a continual obligation to remove barriers, it seems like if you can incoporate as many of them during a renovation, exceeding the 20%, the less of a potential hassle you set yourself up for.


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## mark handler (Aug 2, 2018)

mp25 said:


> not now... but during the next renovation, the 20% at that time might finish the job.
> 
> I have struggled with the interpretation of this rule as well. Given that there is a continual obligation to remove barriers, it seems like if you can incoporate as many of them during a renovation, exceeding the 20%, the less of a potential hassle you set yourself up for.


All new work *Shall, *meet the accessibility codes
The 20 percent is in addition.


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## conarb (Aug 2, 2018)

mark handler said:


> I disagree
> An unfinished project provides zero access, which is the intent of the code and the law.
> As stated in previous posts,  the money needs to be spent on items that give you the most access.
> A foundation to an unfinished portion give no access.



Maybe you should provide some code citations, there have to be some court cases on this issue that I can look up, opinions are worthless.


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## mp25 (Aug 2, 2018)

Mark, i think you missed the intent of my post.

I was responding to your "A foundation to an unfinished portion give no access." 
It might not provide access now, but during a subsequent renovation, when you spend another 20%, it might be enough $$$ to make it accessible.

if the disproportionate limit kicks in at 20%, and the 20% does not get the job done, you do not have to spend over that 20% to get it finished.


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## ADAguy (Aug 3, 2018)

mp25, at issue here is your interp of the code vs the owner's ongoing "Legal obligation" to comply with the ADA.
It appears that he has not previously met that "legal obligation" which is separate from code compliance. Unless he wishes to pursue a small business hardship exemption and open his books (I think not), as Mark says he must then 100% comply if his cost exceeds the threshold. It is a risk he and/or the AHJ choses to take or not.


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## Paul Sweet (Aug 3, 2018)

I don't see where the AHJ would have liability.  They can only enforce the code as adopted in their jurisdiction, not the ADASAD.


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## Rick18071 (Aug 3, 2018)

Rick18071 said:


> You could spend the 20% on just a foundation for an accessible elevator or part of an accessible ramp and stop there. The code just cares how much is spent, it doesn't need to be finished.



This is what they are teaching in the accessible classes in PA and they are very strict about accessibility in PA and send auditors to finished jobs to check how the inspector inspected accessibility. A inspector can get reported and even loose their certification if they screw it up.


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## ADAguy (Aug 3, 2018)

Love it! I want to be an audit inspector, first time I've heard of these.
PA may have a good idea, how long have they been auditing?


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## Rick18071 (Aug 3, 2018)

ADAguy said:


> Love it! I want to be an audit inspector, first time I've heard of these.
> PA may have a good idea, how long have they been auditing?



Ever since the state started requiring inspections, I think 2007. Problem is they come up to 3 years after a building had a CO and write you up for things that were or not were there when you do your inspection. Then the state sends audit report to the local town about your mistakes which makes it sound that you don't know what your doing.

I got written up for a mirror that was too high where there was no mirror when I did the final, so now I tell the contractor that they have to put a mirror up.
Also a parking sign that was knocked down by a snow plow the year before, and grab bars that were taken down when they tiled the restroom.
The door closing speed was too fast 2 years after I checked it.
Exit signs that were taken down because of painting  2 two after I Inspected them.


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## JCraver (Aug 3, 2018)

Rick18071 said:


> Ever since the state started requiring inspections, I think 2007. Problem is they come up to 3 years after a building had a CO and write you up for things that were or not were there when you do your inspection. Then the state sends audit report to the local town about your mistakes which makes it sound that you don't know what your doing.
> 
> I got written up for a mirror that was too high where there was no mirror when I did the final, so now I tell the contractor that they have to put a mirror up.
> Also a parking sign that was knocked down by a snow plow the year before, and grab bars that were taken down when they tiled the restroom.
> ...




That whole second paragraph ^^^?  That's what wrong with the accessibility codes.


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## JCraver (Aug 3, 2018)

Rick18071 said:


> Ever since the state started requiring inspections, I think 2007. Problem is they come up to 3 years after a building had a CO and write you up for things that were or not were there when you do your inspection. Then the state sends audit report to the local town about your mistakes which makes it sound that you don't know what your doing.
> 
> I got written up for a mirror that was too high where there was no mirror when I did the final, so now I tell the contractor that they have to put a mirror up.
> Also a parking sign that was knocked down by a snow plow the year before, and grab bars that were taken down when they tiled the restroom.
> ...



And who in the heck in PA agreed to such nonsense?  Is this a state law they passed that requires these audits, or some state agency rules they made up on their own? 

There's not a lot that's good about Illinois.  But one thing I'll give us is that "they've" successfully fought off attempts to adopt a statewide building code for a long, long time.  I'm not looking forward to when that changes.

* We do have a state accessibility code that I'm required to enforce.  And I do.  But I'd be supremely ticked if a state auditor showed up in town _3 years later_ and started going over jobs I barely remember doing.


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## conarb (Aug 3, 2018)

JCraver said:


> That whole second paragraph ^^^?  That's what wrong with the accessibility codes.


Now you are getting a taste of what we contractors have been facing, our insurance companies refuse to insure us for ADA work because some blackmailer can come back years later and sue us, I get around it by having an architect design everything and list me as additionally insured on his E&O policy, that way if I get sued I can pass it back on the architect, and people wonder why it is so expensive to do ADA work.


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## ADAguy (Aug 3, 2018)

The duty to maintain after c of o is the users duty, not the GC's. Why do you let them get away with their comments, isn't there an appeal process?


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## mp25 (Aug 3, 2018)

JCraver said:


> There's not a lot that's good about Illinois. But one thing I'll give us is that "they've" successfully fought off attempts to adopt a statewide building code for a long, long time. I'm not looking forward to when that changes.



I would like to hear your reasoning behind not wanting a statewide code.
I would think that after the initial "shock" things would get a bit easier for both designers and inspectors.


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## conarb (Aug 3, 2018)

ADAguy said:


> The duty to maintain after c of o is the users duty, not the GC's. Why do you let them get away with their comments, isn't there an appeal process?


ADAguy:

There is a saying in the law, "On a clear day you can sue forever."  It's the filing of the lawsuits that are the problem, in over 90% of ADA cases defended the defendant wins, the problem is the cost of defense, were I sued by a guy in a wheelchair 10 years after I remodeled the building I would turn it over to my insurance company for a defense and I would undoubtedly win; however, insurance companies take the cheapest way out and settle for whatever they can (which is what the blackmailer wants).  If I were sued by the same guy and I am listed as additionally insured on the architect's policy when I turn the suit over to my insurance company, they immediately turn it over to the architect's insurance company for defense and indemnification, then the architect's insurance company takes the cheapest way out and settles with the blackmailer, I have nothing on my record to drive my rates up, the architect does though.


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## JCraver (Aug 6, 2018)

mp25 said:


> I would like to hear your reasoning behind not wanting a statewide code.
> I would think that after the initial "shock" things would get a bit easier for both designers and inspectors.




For my case especially here in IL - because I don't want Springfield or Chicago to have anything to do with our codes.  Because they will both have their hands in it, and they both have long, unblemished records of screwing up everything they touch.


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## conarb (Aug 6, 2018)

JCraver said:


> For my case especially here in IL - because I don't want Springfield or Chicago to have anything to do with our codes.  Because they will both have their hands in it, and they both have long, unblemished records of screwing up everything they touch.


You're right, Chicago has a long history of corruption, notably the Daly machine.  Remember back in our sprinkler debates, the main argument for sprinklers was new "lightweight" construction, the City of Elmhurst allowed for the elimination of sprinklers if the home was conventionally framed, if an applicant used lightweight roof trusses and/or I Joists they had to sprinkle, if they used  conventional framing they didn't.  That makes sense, in California many of our problems started with the statewide code in 1998.


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## Pcinspector1 (Aug 6, 2018)

Rick18071 said:


> Ever since the state started requiring inspections, I think 2007. Problem is they come up to 3 years after a building had a CO and write you up for things that were or not were there when you do your inspection. Then the state sends audit report to the local town about your mistakes which makes it sound that you don't know what your doing.
> 
> I got written up for a mirror that was too high where there was no mirror when I did the final, so now I tell the contractor that they have to put a mirror up.
> Also a parking sign that was knocked down by a snow plow the year before, and grab bars that were taken down when they tiled the restroom.
> ...



Sound like your working for federal government, how much to they pay you to enforce ADA compliance.


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## Rick18071 (Aug 6, 2018)

Pcinspector1 said:


> Sound like your working for federal government, how much to they pay you to enforce ADA compliance.



I don't enforce ADA, just IBC.


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## ADAguy (Oct 4, 2018)

mark handler said:


> All new work *Shall, *meet the accessibility codes
> The 20 percent is in addition.


Good point Mark, a Major point often missed or challenged and often not budgeted for. The cost of alteration/repair of the damaged kitchen together with "an additional" 20% for access barrier removal. 

Yes, the "code" does not require retroactive removal of barriers, unlike the ADASAD but the owner is obligated under Federal law to remove existing barriers to access even if the fire hadn't occurred. Enforcement of his failure to do so is left (unfortunately) up to those with disabilities to to file a claim with DOJ or in CA, a suit to cure.

Note however, if prior permitted construction did not comply with CBC 11B or ICC, it then falls to code enforcement to require correction. The owner can be subject to penalties for not doing so. The city general fund increases and no suits need occur.


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## Rick18071 (Oct 5, 2018)

JCraver said:


> *And who in the heck in PA agreed to such nonsense?  Is this a state law they passed that requires these audits, or some state agency rules they made up on their own? *
> 
> There's not a lot that's good about Illinois.  But one thing I'll give us is that "they've" successfully fought off attempts to adopt a statewide building code for a long, long time.  I'm not looking forward to when that changes.
> 
> * We do have a state accessibility code that I'm required to enforce.  And I do.  But I'd be supremely ticked if a state auditor showed up in town _3 years later_ and started going over jobs I barely remember doing.



State law passed by the PA house and senate and signed by the governor.


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## JCraver (Oct 5, 2018)

So obviously there's no former tradesmen / contractors in your state legislature, eh?


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## conarb (Oct 6, 2018)

ADA Guy said:
			
		

> Yes, the "code" does not require retroactive removal of barriers, unlike the ADASAD but the owner is obligated under Federal law to remove existing barriers to access even if the fire hadn't occurred.



Of course you live in a state that ignores federal law by statute, in fact state employees are forbidden to even cooperate with Federal employees.


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## ADAguy (Oct 7, 2018)

So say you. I communicate with them all the time, unfortunately we are seeing the retirement of the first generation of Access Board Specialists. Consider us progressive but it is for good reason.


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## conarb (Oct 8, 2018)

ADAguy said:


> So say you. I communicate with them all the time, unfortunately we are seeing the retirement of the first generation of Access Board Specialists. Consider us progressive but it is for good reason.


California has declared itself a Sanctuary State, state employees cannot cooperate with Federal employees .


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## ADAguy (Oct 8, 2018)

Again, so say you! Can you produce a declaration from the governor for "all" agencies not to cooperate with the Feds? 
ADA benefits everyone not those who you appear to be referring to.


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## mark handler (Oct 8, 2018)

Not Quite as stated
The state law called the “Immigrant Worker Protection Act,” took effect Jan. 1.
the bill:
▪ Requires employers to ask immigration agents for *a warrant* before granting access to a worksite.
▪ Prevents employers from voluntarily sharing confidential employee information *without a subpoena.*
▪ Requires employers to notify their workers before a federal audit of employee records.
▪ Gives the attorney general and labor commissioner exclusive authority to enforce new provisions of state labor laws.
▪ Prohibits employers from re-verifying information on employment verification forms, *unless compelled to by federal law.

Looks like civil rights/illegal search and seizure laws, per the constitution of the US, are being enforced...... *


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## ADAguy (Oct 8, 2018)

OK Viking, your comment might only apply in a T-1 action; therefore state access folks may carry on.


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## ADAguy (Oct 8, 2018)

mark handler said:


> Not Quite as stated
> The state law called the “Immigrant Worker Protection Act,” took effect Jan. 1.
> the bill:
> ▪ Requires employers to ask immigration agents for *a warrant* before granting access to a worksite.
> ...


Thank you Mark for setting him straight.


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## conarb (Oct 8, 2018)

ADAguy said:


> Again, so say you! Can you produce a declaration from the governor for "all" agencies not to cooperate with the Feds?
> ADA benefits everyone not those who you appear to be referring to.



At law if some agencies don't have to cooperate with the Feds than no agencies have to cooperate tithe Feds.

We have the votes now on the Supreme Court, it's time to start filing lawsuits to get all of these discriminatory Civil Rights Laws thrown into the dusbin of history.  As to ADA benefiting everyone, what about our schools being destroyed by the imbeciles, idiots, and morons in the classrooms because of the stupid ADA?


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## conarb (Oct 8, 2018)

ADAguy said:


> Thank you Mark for setting him straight.



Historically whenever there was a conflict between Federal law and State law Federal law prevailed, now I hear immigrant rights groups screaming: "State's Rights, 10th Amendment".That's exactly what the southern slave holders said, so if California has the right to contradict federal law and allow iiiegal people to stay the southern states have to rights to resume slavery.


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## jar546 (Oct 8, 2018)

Rick18071 said:


> You could spend the 20% on just a foundation for an accessible elevator or part of an accessible ramp and stop there. The code just cares how much is spent, it doesn't need to be finished.


That is the thinking in a very political Pennsylvania


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## ADAguy (Oct 9, 2018)

Viking, your ship sank a long time ago.


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## conarb (Oct 9, 2018)

ADAguy said:


> Viking, your ship sank a long time ago.



No ADA Guy, your socialist ship sank the other day, Pat Buchanan wrote an interesting analysis in *in Ron Unz' Review*, now we can start telling building departments to "shove it" if they hold up our permit applications if we refuse to abide by ADA, I've been telling you guys for years that ADA is unconstitutional, it's going to take lots of lawsuits to drain the cofers of cities who insist on enforcing it,


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## JCraver (Oct 10, 2018)

conarb said:


> No ADA Guy, your socialist ship sank the other day, Pat Buchanan wrote an interesting analysis in *in Ron Unz' Review*, now we can start telling building departments to "shove it" if they hold up our permit applications if we refuse to abide by ADA, I've been telling you guys for years that ADA is unconstitutional, it's going to take lots of lawsuits to drain the cofers of cities who insist on enforcing it,




It's got to go back to SCOTUS before anyone gets to tell anyone to "stuff it".  It might happen, but I wouldn't hold your breath.


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## conarb (Oct 10, 2018)

JCraver said:


> It's got to go back to SCOTUS before anyone gets to tell anyone to "stuff it".  It might happen, but I wouldn't hold your breath.


True, but we have to start somewhere to reclaim our freedoms and those with the ability can start costing the cities a ton of money in legal fees.  Plus, once litigation starts discovery can open up building department books and find diversions of funds.


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