# Reducing the number of disability compliance lawsuits in our community: reader opinio



## mark handler (Jul 17, 2014)

Reducing the number of disability compliance lawsuits in our community: reader opinion

http://www.al.com/opinion/index.ssf/2014/07/reducing_the_number_of_ada_com.html

By Brett A. Smith

The Alabama legislature must address the problem arising for business owners due to an increase in disability compliance lawsuits. Numerous business owners, without warning, recently were served with threats of litigation based on vague allegations that their business is not in compliance with the Americans with Disabilities Act ("ADA").

One possible legislative proposal would be a notification and required remediation period. Upon notification from a plaintiff of a possible violation, business owners are allowed a fixed time to inspect, consult, and possibly remedy an alleged violation prior to the filing of a lawsuit.

Current Alabama or federal law does not require a potential ADA plaintiff to give notification or warning prior to litigation. As it stands today, business owners

faced with allegations are forced to hurriedly decide to either agree to settlement or defend against a potential lengthy and pricey lawsuit.

Oftentimes the vague allegations are not based on actual handicapped

individuals visiting the business but law firm representatives, including hired inspectors, driving by, taking photos, and determining the business is not in compliance. This practice has a very chilling effect on our business community. Alabama businesses do not have adequate time to determine if they are in

compliance before they are forced to decide whether they want to pay a settlement or defend against a lawsuit. These "drive-by" lawsuits are so numerous, many state legislatures throughout the country have enacted the very measure suggested here; a law that requires notification and a fixed time to evaluate, assess, and if needed address the problem prior to litigation.

This proposal helps to curtail litigation, aids the disabled, supports the intent of the ADA, and minimizes the additional burden on our court system. Adopting this

balanced approach does not do away with the plaintiff's right to sue but benefits the disabled community as a whole. Instead of paying out one plaintiff and their

attorney's fees (or the cost of suit), business owners, upon notification of a

potential violation, could do their own inspection, consultation, and if required

make repairs to their businesses, improving our community as a whole.

The intent of the ADA is to provide accessibility for our disabled citizens, not to pay out "drive-by" lawsuits and attorney's fees. Business should spend their money on making reasonable accommodations not on paying for costly settlements or defending a suit. Allowing business owners a fixed time to inspect, consult, and remedy an alleged violation prior to suit respects the intent of the ADA while protecting the future of our business community.

Brett A. Smith is a partner at the law firm of Huff Smith Law, LLC in Auburn.

He can be reached at brett@huffsmithlaw.com.


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## Rick18071 (Jul 17, 2014)

a great idea


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## mark handler (Jul 17, 2014)

Rick18071 said:
			
		

> a great idea


"remediation period". "notification or warning prior to litigation"...

How about the twenty four years since the law was passed?


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## Msradell (Jul 18, 2014)

mark handler said:
			
		

> "remediation period". "notification or warning prior to litigation"...How about the twenty four years since the law was passed?


Well Put!  They've already had 24 years to comply and there certainly has been enough publicity about the issues that they have to know about it and the consequences of not complying.


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## Paul Sweet (Jul 18, 2014)

ADA requires making new buildings accessible, but does not require making existing buildings accessible, unless they are altered.

§ 36.401 New construction.

(a) General.

(1) Except as provided in paragraphs (b) and © of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

§ 36.402 Alterations.

(a) General.

(1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(2) An alteration is deemed to be undertaken after January 26, 1992, if the physical alteration of the property begins after that date.

(b) Alteration. For the purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

(2) If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of appendix A to this part.

Tenant changes in furnishings or decoration are not "alterations" that trigger accessibility upgrades.  A lot of businesses haven't made "alterations" since ADA became law.


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## mark handler (Jul 18, 2014)

Paul Sweet said:
			
		

> ADA requires making new buildings accessible, but does not require making existing buildings accessible, unless they are altered.


Not totally true, the owners *MUST* do Readily Achievable Barrier Removal or they can be sued

Under the ADA, Law, not the ADA Standards, public accommodations, shall be Accessible

Under the ADA, public accommodations are private entities that own, lease, lease to or operate a place of public accommodation. This means that both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities to remove barriers.

A place of public accommodation is a facility whose operations affect commerce and fall within at least one of the following 12 categories:

1) Places of lodging (e.g., inns, hotels, motels, except for owner‐occupied establishments renting fewer than six rooms)

2) Establishments serving food or drink (e.g. , restaurants and bars)

3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums)

4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls)

5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers)

6) Service establishments (e.g. , laundromats, dry‐cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals)

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation)

8) Places of public display or collection (e.g. , museums, libraries, galleries)

9) Places of recreation (e.g. , parks, zoos, amusement parks)

10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools)

11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies)

12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).


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## conarb (Jul 19, 2014)

In the UK the disabled are using the Nazi black triangle.

View attachment 1071

​


			
				Wikipedia said:
			
		

> *Use by disabled peoples' organizations* Some UK groups concerned with the rights of disabled people have adopted the symbol in their campaigns.  Such groups cite press coverage and government policies, including  changes to incapacity benefit and disability living allowance, as the  reasons for their campaigns. ¹


¹ http://en.wikipedia.org/wiki/Arbeitsscheu
View attachment 1071


/monthly_2014_07/572953d355cda_blacktriangle.png.68077fec9e2e4259ce100167c15d6942.png


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## ADAguy (Jul 19, 2014)

I will repeat again that there is a common sense simple solution to this. SB1086 now requires commercial brokers to notify leasesees or buyers of commercial property to notify them as to whether a CASp inspection has been require one performed (it does not, unfortunately require one). Consider that current CBC has been updated, that Code enforcement can now be contacted about alledged non-compliance as within there authority to investigate. (requires participation by the disabled)

 (agai, too logical?)

Then again, if cities were to require proof of compliance as part of their business license renewal, it would be so much easier and trackable. Notices can be included in annual renewal notices (too logical?) This would be code enforcement and not ADA but then Harris could not deny that that cities are responsible for enforcement (again, too loigical?)


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## mark handler (Jul 19, 2014)

ADAguy said:
			
		

> I will repeat again that there is a common sense simple solution to this. SB1086 now requires commercial brokers to notify leasesees or buyers of commercial property to notify them as to whether a CASp inspection has been require one performed (it does not, unfortunately require one). Consider that current CBC has been updated, that Code enforcement can now be contacted about alledged non-compliance as within there authority to investigate. (requires participation by the disabled) (agai, too logical?)
> 
> Then again, if cities were to require proof of compliance as part of their business license renewal, it would be so much easier and trackable. Notices can be included in annual renewal notices (too logical?) This would be code enforcement and not ADA but then Harris could not deny that that cities are responsible for enforcement (again, too loigical?)


There is no CASp in Alabama, where the OP originated.


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## Francis Vineyard (Jul 19, 2014)

What would be readily achievable?  From September 15, 2010, to March 15, 2012, if the elements in a business serving the public (public accommodation) do not comply with the requirements for those elements in the 1991 Standards, the elements must be modified, to the extent readily achievable, using either the 1991 Standards or the 2010 Standards. The public accommodation must use only one standard for removing barriers in the entire facility. For example, it cannot choose the 1991 Standards for accessible routes and the 2010 Standards for restrooms.   On or after March 15, 2012, elements in a facility that do not comply with the 1991 Standards' requirements for those elements (for example where an existing restaurant has never undertaken readily achievable barrier removal) must be modified using the 2010 Standards to the extent readily achievable.   March 15, 2012, is the compliance date for the 2010 Standards which include revisions to the 1991 Standards as well as supplemental requirements for which there are no technical or scoping requirements in the 1991 Standards (such as swimming pools, play areas, marinas, or golf facilities). Public accommodations must comply with the 2010 Standards' supplemental requirements in existing facilities to the extent readily achievable.


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## kilitact (Jul 19, 2014)

Sounds like some common sense.

The standard is what is enforceable, yes any one can sue in order to make changes or money.

 I would sure like to see these people that are familiar with every d-m law and standard that was passed in the last xxx years.

Title III (Public Accommodations)

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

This title prohibits private places of public accommodation from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on.  This title sets the minimum standards for accessibility for alterations and new construction of facilities. It also requires public accommodations to remove barriers in existing buildings where it is easy to do so without much difficulty or expense.  This title directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. It also requires that they take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities.  This title is regulated and enforced by the U.S. Department of Justice.


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## conarb (Jul 19, 2014)

As I'm sure most of you have read California is in one of it's cyclical droughts, farmers use 80% of our water, environmentalists (notably The Sierra Club) have demanded that we build no more dams and even have us tearing down dams "for the fish", I see a proposal from a Stanford professor to "allow" the environmentalists pay for the water (much like a carbon cap & trade).



			
				\ said:
			
		

> Anderson believes that it may become an increasingly important tool in the future. It could, for example, allow environmentalists who want to protect salmon runs to pay farmers to leave water in the river. "A market is an institution that links up suppliers with demanders" ¹


Maybe a similar system could be set up for the "demanders" here, allow the disabled and their support groups to pay businesses to change their facilities to accommodate them.

¹ https://alumni.stanford.edu/get/page/magazine/article/?article_id=71847


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## MASSDRIVER (Jul 19, 2014)

conarb said:
			
		

> As I'm sure most of you have read California is in one of it's cyclical droughts, farmers use 80% of our water, environmentalists (notably The Sierra Club) have demanded that we build no more dams and even have us tearing down dams "for the fish", I see a proposal from a Stanford professor to "allow" the environmentalists pay for the water (much like a carbon cap & trade).Maybe a similar system could be set up for the "demanders" here, allow the disabled and their support groups to pay businesses to change their facilities to accommodate them.
> 
> ¹ https://alumni.stanford.edu/get/page/magazine/article/?article_id=71847


Ah, Conarb.

Your youth and naivete is quite beguiling.

To suggest that those using the resources they demand actually participate in the funding thereof is, shall we say, amusing.

Brent


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## conarb (Jul 19, 2014)

MASSDRIVER said:
			
		

> Ah, Conarb.Your youth and naivete is quite beguiling.To suggest that those using the resources they demand actually participate in the funding thereof is, shall we say, amusing. Brent


Brent:I guess I'm old enough to remember this as a free country when every business had a sign saying:View attachment 1072

​Or actually state who we don't want to do business with:

View attachment 1073

​But we've lost our rights to free speech and freedom of association.

View attachment 1072


View attachment 1073


/monthly_2014_07/we-reserve.jpg.1a06c2158193d408fe3ad10aed2e913f.jpg

/monthly_2014_07/irish-need.jpg.85470f753f423bd0e4d5c647c483bda2.jpg


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## mark handler (Jul 20, 2014)

conarb said:
			
		

> I guess I'm old enough to remember this as a free country when every business had a sign saying:
> 
> Or actually state who we don't want to do business with:
> 
> But we've lost our rights to free speech and freedom of association.


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## mark handler (Jul 20, 2014)




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## mark handler (Jul 20, 2014)




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## MASSDRIVER (Jul 20, 2014)

Completely different.

No comparison.

Brent.


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## Paul Sweet (Jul 21, 2014)

From ADA 36.104 Definitions:

Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include—

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Restriping some parking spaces and putting up a sign is "readily achievable". Regrading the parking lot isn't.  Adding an accessible toilet or modifying existing restrooms is not "readily achievable".

Small business owners who rent their space have no control over the landlord's property, which includes the parking lot, yet they get sued if a landlord puts a handicap parking sign on a space that exceeds 2% slope.


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## mtlogcabin (Jul 21, 2014)

> I guess I'm old enough to remember this as a free country


My 8 year old granddaughters question

 "Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"

Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"


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## mark handler (Jul 21, 2014)

mtlogcabin said:
			
		

> My 8 year old granddaughters question  "Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"
> 
> Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"


Ask any Disabled Vet:

Freedom is not Free


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## kilitact (Jul 22, 2014)

mtlogcabin said:
			
		

> My 8 year old granddaughters question  "Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"
> 
> Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"


Yes, but they figure they can sue for the free-dom.


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## mark handler (Jul 22, 2014)

Always Driven by lawyers....


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## Frank (Jul 22, 2014)

The way you show that the corrections are not "readily achieveable" due to inadequate resources, is when you go bankrupt trying to prove you don't have the money in Federal Court.

For a business with limited resources the defense costs can be the last straw.


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## mark handler (Jul 22, 2014)

Frank said:
			
		

> ,,,,, defense costs can be the last straw.


Tax credits and rebates are avalible, And it is cheaper to prevent the lawsuit prior to the lawsuit than defend, after the suit is filed

It was almost 25 years ago that it became law, how much time is too much


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## Frank (Jul 22, 2014)

mark handler said:
			
		

> Tax credits and rebates are avalible, And it is cheaper to prevent the lawsuit prior to the lawsuit than defend, after the suit is filedIt was almost 25 years ago that it became law, how much time is too much


It is not a question of time it is a question of feasability--many of these corrections are not achievable without major changes to the building or the site if not full tear down and redevelopment.

I see it regularly in change of use meetings where the project simply does not go there, because the existing building is not accessible and it is not readily achievable to make it so due to space grade and elevation issues--therefore the building sits vacant and deteriorating.  Removing barriers can be alot more difficult and expensive than taking down a "No Colourds Allowed" sign.

A small business that does not have the $100,000 plus at the margin to correct all the accessibility issues likely does not have the $50,000 to defend the lawsuit.


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## mark handler (Jul 22, 2014)

Frank said:
			
		

> It is not a question of time it is a question of feasability--many of these corrections are not achievable without major changes to the building or the site if not full tear down and redevelopment.I see it regularly in change of use meetings where the project simply does not go there, because the existing building is not accessible and it is not readily achievable to make it so due to space grade and elevation issues--therefore the building sits vacant and deteriorating.  Removing barriers can be alot more difficult and expensive than taking down a "No Colourds Allowed" sign.


I have NEVER seen a lawsuit filed where access is not readily achievable.

It is always a case where they think the law does not apply to them, or were given bad advice, usually by contractors, saying they are exempt or "grandfathered"


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## MASSDRIVER (Jul 22, 2014)

The point is not the lawsuits.

It is the cost and feasibility.

The weakness was making a law creating a class of people to be discriminated against. It's far different putting a sign up preventing a certain person from services, and blaming a building for doing the same.

If the codes were building codes, it would not be an issue, in the sense of discrimination.

I really have very little problem with the Ada codes in new construction. You can just factor in the cost and either do it, or don't. Remodels should be handled otherwise.

Brent.


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## mtlogcabin (Jul 22, 2014)

> Tax credits and rebates are available


A business has to have the financial ability to make the improvement prior to receiving a tax credit or rebate.

Businesses come and go in as little as 90 days or a couple of years. The financial burden should rest with the property owner period for parking lots, accessible route into the building and restroom configuration all others possible violations that are outside the property owners control should rest with the business owner.


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## Frank (Jul 22, 2014)

mark handler said:
			
		

> I have NEVER seen a lawsuit filed where access is not readily achievable.It is always a case where they think the law does not apply to them, or were given bad advice, usually by contractors, saying they are exempt or "grandfathered"


That is because at the demand letter received stage, before the lawsuit is filed, they evaluate the cost of correction, and the cost of defense and when neither is feasable they close up shop.

A small business person clearing under $100,000 per year facing a $30-100,000 expense may well decide it is not worth the  hassle any more and liquidate.


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## ADAguy (Jul 23, 2014)

Please be clear, ADA is a "law", not a code. Codes impliment the minimum requirements of the law.

There in lies the ongoing issue, not that the removal of barriers cannot be done, it continues to be and ongoing failure to "inform" businesses of their "ongoing" legal responsibility.

In hindsight the need to "continuosly "inform" should have been foreseen, and enforced by the AG.


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## mark handler (Jul 23, 2014)

Any excuse...Wow, not one due to threat of ADA  Lawsuits

It's always somone elses fault.

http://www.forbes.com/sites/ericwagner/2013/09/12/five-reasons-8-out-of-10-businesses-fail/

Five Reasons 8 Out Of 10 Businesses Fail


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## MASSDRIVER (Jul 23, 2014)

mark handler said:
			
		

> Any excuse...Wow, not one due to threat of ADA  LawsuitsIt's always somone elses fault.
> 
> http://www.forbes.com/sites/ericwagner/2013/09/12/five-reasons-8-out-of-10-businesses-fail/
> 
> Five Reasons 8 Out Of 10 Businesses Fail


So, having read the article,I thought I would put some thought into it.

First, it references a select group, businesses younger than 18 months. The premise is that 80% of those fail. Many of those businesses may not have anything to do with a storefront or building that would have any ADA contact. Even so, some of those may be in retail in new, compliant buildings. Some may be like me with no building except my home.

In 18 months you would have to be discovered by some attorney or handicapper and have a suit brought against you. So pretty much, this particular article does not even reference those businesses that may be inpacted, or impacted yet, by an ADA suit.

But since we apparently like the "%" a lot, lets use it.

*40% of small businesses are profitable.*

*30% break even.*

*30% are continually losing money.*

*9% have a chance of surviving 10 years*

So these are the ones we are actually probably referring to.

Here is an info-graphic:

http://smallbiztrends.com/2013/03/infographic-failed-small-businesses.html

Notice that businesses with fewer than 20 employees stand only a 9% chance of staying alive 10 years. Only 37% make it 4 years. Retail dies 80% of the time, restaurants 60%. It says we have lost over 7,100 restaurants during the recession, and that was a year ago. I'm speculating these are the most likely outfits to be targeted by an ADA suit. And if not a suit, if in an older TI, may have to make upgrades.

So essentially, this information above and in the Forbes article points to those businesses not at risk for some sort of ADA attack or expense. Unless they had to pour out money from the get-go tho make a facility compliant. Any monies put tothat maybe coild have been sourced to keep the outfit viable, such as hiring a consultant. That's just missing information that the above does not address.

So more to the point, (and I do not believe this goes unnoticed by the ADA vultures, of all stripes) You can't get blood out of a turnip. The only place for a bloodsucker to get blood is from a juicy artery. Those arteries are the businesses that are viable and successful, those that can withstand an attack and live through the process.

Those making a profit.

Of course, this means that any reference to an ADA suit putting people out of business will be skewed drastically down. There are those that have to fold up as they were marginal to begin with, and those that can and will pay, because they can. They have to to stay operational.

Now with all this information showing that basically you don't stand much of a chance of being successful, and knowing how difficult and uncommon it is to do so, why would anyone be a proponent of making it yet MORE difficult? Not just the ADA crap, but all the other hostile business actions, especially in California.

Is the goal to see just what it takes to break somebody, or just leave?

You would have to have your head in the toilet to not understand why, after 20+ years there is still a lack of compliance. It's just another crap sandwich someone has to eat and it gets de-prioritized until it becomes near-fatal, along with 20 other things.

If you think regulations and crap laws won't drive a business away, then I recommend referencing Magpul and Beretta's move out of their respective states after the loss of second amendment rights.

But I digress; The Forbes article illustrates FOR the argument that ADA costs are detrimental to business, not AGAINST it.

Brent.


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## ADAguy (Jul 23, 2014)

MASSDRIVER said:
			
		

> So, having read the article,I thought I would put some thought into it.First, it references a select group, businesses younger than 18 months. The premise is that 80% of those fail. Many of those businesses may not have anything to do with a storefront or building that would have any ADA contact. Even so, some of those may be in retail in new, compliant buildings. Some may be like me with no building except my home.
> 
> In 18 months you would have to be discovered by some attorney or handicapper and have a suit brought against you. So pretty much, this particular article does not even reference those businesses that may be inpacted, or impacted yet, by an ADA suit.
> 
> ...


If you "chose" to play a game, you need to know the rules first, don't you? If not, the odds are that one day the "stripes" will cite you and you may lose.


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## mjesse (Jul 23, 2014)

ADAguy said:
			
		

> If you "chose" to play a game, you need to know the rules first, don't you? If not, the odds are that one day the "stripes" will cite you and you may lose.


If the "rules" didn't encompass more than 800 different reference materials, each 400-1200 pages thick, an entrepreneur might have more than a fighting chance.

Throw in the fact that many federal, state, and local "rules" are open to interpretation by public service flunkies, and today's small business owner is playing a "game" that few win.

Small business owner/operators built this country, and many of the rulemakers* are bound to destroy them.

*Rulemakers:

Government (Federal, State, and Local) sponsored by...

Special Interest Groups + Lobbyists

Mega Corporations (profits trump rules) "too big to fail" leading to...

Outsourcing (more profitable to play on a field with fewer/no rules)

Sympathizers (Mr. Business Owner is discriminating against ________)

Attorneys (building their own profits from disputes between all of the above)

Etc.


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## Francis Vineyard (Jul 23, 2014)

In the case where lawyers have nothing to loose; how just to punish those by coercion that are not guilty.


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## Frank (Jul 23, 2014)

ADAguy said:
			
		

> If you "chose" to play a game, you need to know the rules first, don't you? If not, the odds are that one day the "stripes" will cite you and you may lose.


Way too often businesses large and small don't do their due dilligance and run into regulatory compliance issues that kill or wound the business in the startup stage, I know of legions of examples, some accessibility others fire and building code related, others zoning regulations.  Some act on the better ask forgiveness than to ask for permission theory.

A few, house based assisted living 8 person-- adds 4 bedrooms on the back of the house and their contractor does not mention any where on the application or plans that it is assisted living--after completion asked for building inspection for Social Services to go to 16--nope--not sprinklered, zoning does not permit, and Utilities Connection fees for new use not paid.  $80k spent on addition that can not be used to increase capacity.

Company buys 300 000 sq ft warehouse and converts to printing plant with thousands of gallons of 1B flammable inks without getting an architect or fire protection engineer to do overall plan and neglects to get several needed building permits when building 60 000 sq ft press room using foam insulated metal panels.  Height and area issues, drainage, fire rating issues, sprinkler issues (ESFR with 55 gallon drums of ink), electrical classification issues, egress issues, etc.  $30 million invested so far--project on hold months after projected opening date, as the engineering is now being done to try to get it straightened out.

Day care for seniors set up in an unsprinklered warehouse building builds walls without permits and calls to get Social Services Building inspection approval--everything is painted and decorated furniture in place--not permitted in unsprinklered building and accessibility issues (2-8 doors with knobs)--end of project investment down the drain.

Convenience store builds addition on the back without permits, inadequate structural, no footings, improper wiring, no hood for fryers, accessibility issues, and mostly on the neighbors property.  It was removed.  Unfortunately the business stayed with its vice issues.

And we do provide site visits for proposed changes of use to let small and large businesses know what the potential issues are building, fire, zoning, utilites etc. before they sign the lease, and we do not charge for this service.  If there is no work needed it will get you your new CO.


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## mark handler (Jul 23, 2014)

If not ADA, they will blame the EPA, or the taxes, or business licensing or the planning department for not allowing a larger sign.

Businesses always blame everything and everyone, but themselves.

If I can do shoddy work here, or use another jobs funds, I can keep my Flyby-night contracting business going... If I get caught it is the regulators/ inspectors fault I failed.


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## ADAguy (Jul 23, 2014)

You can tell them what they "need to know" but don't want to hear until the cows come home. Its "not their fault". Wa, Wa, Wa!

Follow Hammurabi.


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## MASSDRIVER (Jul 24, 2014)

And the above two posts speak for themselves.

Animosity and foul attitude.

The administrative class at work.

Brent.


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## conarb (Jul 24, 2014)

MASSDRIVER said:
			
		

> And the above two posts speak for themselves.Animosity and foul attitude.
> 
> The administrative class at work.
> 
> Brent.


That's because they are Socialists who believe in "From each according to his abilities, to each according to his needs.", National Socialism in Germany led to Hitler, The Union of Soviet Socialist Republics in the USSR led to Stalin,  socialism always leads to tyranny, and we are far down the road to tyranny now.

I've got a solution, tax everybody the same, instead of taxing the producers to support the civil servants and redistribute the money to the non-producers tax everyone the same, this will soon end and we won't be taking money from people according to their abilities and redistributing it to those with little or no abilities.


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## mark handler (Jul 24, 2014)

conarb said:
			
		

> That's because they are Socialists who believe in "From each according to his abilities, to each according to his needs.", National Socialism in Germany led to Hitler, The Union of Soviet Socialist Republics in the USSR led to Stalin,  socialism always leads to tyranny, and we are far down the road to tyranny now.I've got a solution, tax everybody the same, instead of taxing the producers to support the civil servants and redistribute the money to the non-producers tax everyone the same, this will soon end and we won't be taking money from people according to their abilities and redistributing it to those with little or no abilities.


And calling me names and flat taxation helps reduce accessibility lawsuits how?


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## ADAguy (Jul 25, 2014)

MH, Conarb is a contractor and a construction defects expert, "need I say more?" He just builds "to suit" (smiling).


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## mark handler (Jul 25, 2014)

ADAguy said:
			
		

> MH, Conarb is a contractor and a construction defects expert, "need I say more?" He just builds "to suit" (smiling).


And calling people names helps reduce accessibility lawsuits how?


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## conarb (Jul 25, 2014)

mark handler said:
			
		

> And calling people names helps reduce accessibility lawsuits how?


Because you are constantly and incessantly promoting this law, a law patently unconstitutional infringing upon our constitutional rights to freedom of speech and association.   The law piggybacked on civil rights laws intended as redress for prior grievances of blacks who were discriminated against.  That legislation was only intended to be temporary, nobody I've seen ever discriminated against handicapped people,  people usually went out of their way to help handicapped people until now that the disabled have adopted obnoxious behavior extorting money and special accommodations.  Most handicapped people I know what nothing to do with these laws because of the prejudice they've caused, most don't even realize that a whole industry has sprouted up exploiting them and their situation, they read about the unreasonable lawsuits in the newspapers, and they see the problems in the parking lots, but they don't realize that people are exploiting their situation.

One might ask why some civil rights organization doesn't bring a class action suit rendering these laws unconstitutional?  The answer is that no one wants to be perceived as going against unfortunate people, so those profiteering off this unfortunate situation are lining their  pockets exploiting the truly handicapped.  I had hopes that the ACLU would do something but they haven't, a prior generation of the ACLU took a very politically unpopular case against the city of Skokie Illinois in 1977, Skokie had a high Jewish population including several Holocaust survivors, the Nazi party deliberately chose Skokie to stage a parade knowing about the Holocaust survivors, Skokie refused the permit application, the ACLU brought an action against Skokie based upon the legal principle that the Nazi's First Amendment free speech rights trumped any damages that the Jewish population might suffer.  That case took guts since a high percentage of ACLU members (read financial supporters) were Jewish and the ACLU did suffer a major drop in both membership and donations, but they did it as a matter of principle. ¹  Too bad this generation of the ACLU doesn't have the guts that those in the 70s had.

¹ http://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Village_of_Skokie


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## mark handler (Jul 25, 2014)

conarb said:
			
		

> Because you are constantly and incessantly promoting this law, a law patently unconstitutional infringing upon our constitutional rights to freedom of speech and association.   The law piggybacked on civil rights laws intended as redress for prior grievances of blacks who were discriminated against.  That legislation was only intended to be temporary, nobody I've seen ever discriminated against handicapped people,  people usually went out of their way to help handicapped people until now that the disabled have adopted obnoxious behavior extorting money and special accommodations.  Most handicapped people I know what nothing to do with these laws because of the prejudice they've caused, most don't even realize that a whole industry has sprouted up exploiting them and their situation, they read about the unreasonable lawsuits in the newspapers, and they see the problems in the parking lots, but they don't realize that people are exploiting their situation. One might ask why some civil rights organization doesn't bring a class action suit rendering these laws unconstitutional?  The answer is that no one wants to be perceived as going against unfortunate people, so those profiteering off this unfortunate situation are lining their  pockets exploiting the truly handicapped.  I had hopes that the ACLU would do something but they haven't, a prior generation of the ACLU took a very politically unpopular case against the city of Skokie Illinois in 1977, Skokie had a high Jewish population including several Holocaust survivors, the Nazi party deliberately chose Skokie to stage a parade knowing about the Holocaust survivors, Skokie refused the permit application, the ACLU brought an action against Skokie based upon the legal principle that the Nazi's First Amendment free speech rights trumped any damages that the Jewish population might suffer.  That case took guts since a high percentage of ACLU members (read financial supporters) were Jewish and the ACLU did suffer a major drop in both membership and donations, but they did it as a matter of principle. ¹  Too bad this generation of the ACLU doesn't have the guts that those in the 70s had.
> 
> ¹ http://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Village_of_Skokie


And calling me names and flat taxation helps reduce accessibility lawsuits how?

In your arguments, you seem to agree with the freedoms the ACLU  and with the Nazis

Calling me names is not going to alter the laws.

And me posting articles about ADA lawsuits are intended to promote conversation and debate not attacks, you and Brent attack without adding any value


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## conarb (Jul 25, 2014)

mark handler said:
			
		

> And calling me names and flat taxation helps reduce accessibility lawsuits how?In your arguments, you seem to agree with the freedoms the ACLU  and with the Nazis
> 
> Calling me names is not going to alter the laws.


I knew that you were going to say that, neither the ACLU nor I agree with the Nazi's position, but the case stands for the legal fact that First Amendment freedoms of speech and expression trump all other rights.

The fact is that these laws are redistribution of wealth, redistribution from businesses and taxpayers to those exploiting the disabled for profit, my understanding from handicapped friends is that very little of it actually helps them.

If everybody paid the costs of this equally there would be much more public outcry, as it is only half of the population even pays income taxes so they don't care, and of course all business make fortunes so they can afford it, who cares?


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## mark handler (Jul 25, 2014)

conarb said:
			
		

> I knew that you were going to say that, neither the ACLU nor I agree with the Nazi's position, but the case stands for the legal fact that First Amendment freedoms of speech and expression trump all other rights.The fact is that these laws are redistribution of wealth, redistribution from businesses and taxpayers to those exploiting the disabled for profit, my understanding from handicapped friends is that very little of it actually helps them.
> 
> If everybody paid the costs of this equally there would be much more public outcry, as it is only half of the population even pays income taxes so they don't care, and of course all business make fortunes so they can afford it, who cares?


The Nazis march has noting to do with redistribution of wealth, you need to talk with OTHER Disabled people. They are your friends becase they agree with you.

Maybe you need to get out more often.

You seem to misunderstand my position on all this.

If someone builds something it should be built accessible.

Old buildings should be made accessible when altered.

I do belive all public accomidations should be accessible

I do not belive in these lawsuits.

If you would read my postings I have Never said I agree with the lawsuits.

In my postings I have stated Professional and Personal opinions on what is and isnt accessible


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## mark handler (Jul 25, 2014)

And your First Amendment freedoms of speech and expression Does not trump all other rights.

Just as an example, You do not, through your right of expression, have the right to touch me.

There are limits, to everything


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## mtlogcabin (Jul 25, 2014)

> I do not belive in these lawsuits


I for one am glad to hear that. My perception from some of your comments led me to believe you did agree with them. I personally have no problem with a DOJ federal suit. However what CA has created is not positive for the majority of the disabled or business community to reduce barriers for the disabled.


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## Min&Max (Jul 25, 2014)

Getting back to the original intent of this thread--reducing the number of lawsuits is actually not difficult. For new buildings you have to meet ADA standards. The standards should only be written to a reasonable minimum standard--not the wide-ranging, mutating mess we work with now. One national standard that individual states cannot modify in any way, shape or form. Existing buildings built prior to ADA regs do not have to meet ADA regs until they are required to obtain a permit for a remodel/addition. All installations, that are technically feasible, must meet ADA regs with an additional 20% going to ADA mitigation at the site. Doesn't matter how far in the future we go, ADA mitigation is not required until other work requires a permit.


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## mark handler (Jul 25, 2014)

mtlogcabin said:
			
		

> I for one am glad to hear that. My perception from some of your comments led me to believe you did agree with them. I personally have no problem with a DOJ federal suit. However what CA has created is not positive for the majority of the disabled or business community to reduce barriers for the disabled.


Not just CA

Regarding "some" of the lawsuits I have seen, the buildings should have been brought up to compliance, but due to failures of BO's and inspectors, they were not. Some Disabled feel it is their only recourse.

Some BO's and inspectors won't admit they screwed up by not enforcing the access portions of the code.


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## MASSDRIVER (Jul 25, 2014)

mark handler said:
			
		

> And calling me names and flat taxation helps reduce accessibility lawsuits how?In your arguments, you seem to agree with the freedoms the ACLU  and with the Nazis
> 
> Calling me names is not going to alter the laws.
> 
> And me posting articles about ADA lawsuits are intended to promote conversation and debate not attacks, you and Brent attack without adding any value


You are not being attacked. I personally have put my arguments out to all, and NEVER GET

DEBATED ON THE POINTS.

As for your position, based on some points you made, I managed to understand your position and where you are coming from.

I misunderstood that long ago. But your dismissiveness did it help at all.

When I thought you were something you are not, you picked a fight. You wrote, and I quote, "You know nothing about me".

That just invites fun and hilarity. Then you  decided to get nasty about it.

A lot of trouble could have been saved with the proper response of  "Hey window licker, you got me all wrong. I believe blahblahblah".

Then we can discuss, call each other names and spin around angry, but in a good natured way.

That I understand. We can debate our philosophical differences and be pals.

Brent.


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## conarb (Jul 25, 2014)

We may have a constitutional resolution of these issues, the executive function of government runs all the way from the POTUS down to the dog catchers, the President and the Attorney General have refused to enforce laws that they don't like or feel it impractical to enforce (drug, immigration, and parts of Obamacare), the House is threatening to sue the President to force him and his Attorney General to enforce laws as written by the legislature.  If the courts rule in favor of the President then building departments could also use discretion in enforcing laws that they don't like, or feel enforcement would be impractical.

I read a debate between two constitutional scholars, one left-leaning and the other right-leaning, the right-leaning scholar said the executive must enforce all laws as written, the left-leaning scholar agreed that the executive must enforce but that he has discretion as when to enforce, that he could delay enforcement indefinitely if he so chose.

If the courts come down in favor of this administration then building departments could also exercise discretion in enforcement as long as it complies with the court decision.


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## mark handler (Jul 26, 2014)

There is no nexus between the enforcement of drug law, immigration law , and/or parts of Obamacare, and ADA .

There is no nexus between the enforcement State and Federal laws.

I enforce the state codes and laws.

I do not enforce federal codes and laws.

Even if you got a federal court to strike down ADA, I will still need to enforce  the state codes and laws. That includes the accessibility codes/laws.

I have NO choice.

Nothing to do with a socialistic or communistic agenda.


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## conarb (Jul 26, 2014)

It's my opinion that if the Supreme Court holds that the President and Attorney General of the United States do not have to enforce all laws, that they can exercise discretion when performing their executive function, then every jurisdiction in the United States will also have the right to exercise discretion in their execution of the laws, absent a closely tailored decision specifically limiting the precedent of their decision to the President and the Attorney General.


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## mark handler (Jul 26, 2014)

conarb said:
			
		

> It's my opinion that if the Supreme Court holds that the President and Attorney General of the United States do not have to enforce all laws, that they can exercise discretion when performing their executive function, then every jurisdiction in the United States will also have the right to exercise discretion in their execution of the laws, absent a closely tailored decision specifically limiting the precedent of their decision to the President and the Attorney General.


Nothing to do with what I am required to do


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## conarb (Jul 26, 2014)

mark handler said:
			
		

> Nothing to do with what I am required to do


If it gets to the Supreme Court and the Court does rule that the executive can exercise discretion in the enforcement of law you will have the option of enforcing it or not enforcing it at your discretion.

California passed a law making medical marijuana legal under state law,  but it was still illegal under Federal law, the Feds started arresting and closing down the purveyors, Attorney General Holder unilaterally decided not to enforce the Federal law, does he have that right or is he bound to enforce all Federal laws?  If the Court rules that he has the right to exercise discretion in his enforcement of Federal laws, every jurisdiction in the United States is governed by precedents established by the United States Supreme Court and all jurisdiction will have the right to exercise discretion in their enforcement of all laws.  If the case only gets as far as a Federal District Court or the DC Court of Appeals and either or both of them rules for the President their decisions will not be binding upon a local AHJ, for a Federal decision to set a precedent for an AHJ in Southern California the decision would have to come from the District Court for the Southern District of California, the 9th Circuit Court of Appeals, or the U.S. Supreme Court.  Obviously that's not going to happen in the lower courts since Congress will be filing the case in Washington, so it will only apply to you if the Supreme Court takes it, Congress may even ask the Supreme Court for an expedited hearing like they did in Bush vs. Gore this issue is so large and affects the entire nation.


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## ADAguy (Jul 26, 2014)

Welcome to the merry go round, a never ending story of appeals, rewrites and lack of speciifity.



			
				conarb said:
			
		

> If it gets to the Supreme Court and the Court does rule that the executive can exercise discretion in the enforcement of law you will have the option of enforcing it or not enforcing it at your discretion.  California passed a law making medical marijuana legal under state law,  but it was still illegal under Federal law, the Feds started arresting and closing down the purveyors, Attorney General Holder unilaterally decided not to enforce the Federal law, does he have that right or is he bound to enforce all Federal laws?  If the Court rules that he has the right to exercise discretion in his enforcement of Federal laws, every jurisdiction in the United States is governed by precedents established by the United States Supreme Court and all jurisdiction will have the right to exercise discretion in their enforcement of all laws.  If the case only gets as far as a Federal District Court or the DC Court of Appeals and either or both of them rules for the President their decisions will not be binding upon a local AHJ, for a Federal decision to set a precedent for an AHJ in Southern California the decision would have to come from the District Court for the Southern District of California, the 9th Circuit Court of Appeals, or the U.S. Supreme Court.  Obviously that's not going to happen in the lower courts since Congress will be filing the case in Washington, so it will only apply to you if the Supreme Court takes it, Congress may even ask the Supreme Court for an expedited hearing like they did in Bush vs. Gore this issue is so large and affects the entire nation.


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## mark handler (Jul 26, 2014)

Until directed by the State, We will continue to enforce the state Law/code.

The Supreme Court will not interfere with state rights on Accessibility


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## conarb (Jul 26, 2014)

mark handler said:
			
		

> Until directed by the State, We will continue to enforce the state Law/code.The Supreme Court will not interfere with state rights on Accessibility


Mark:

You don't understand, the Supreme Court is not going to rule on disability, it may rule on executive discretion, but the latest news is that Obama is *bracing for impeachment* instead of the lawsuit on executive discretion.  Too bad, we really need a court ruling on executive discretion.


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## mark handler (Jul 26, 2014)

conarb said:
			
		

> Mark:You don't understand, the Supreme Court is not going to rule on disability, it may rule on executive discretion, but the latest news is that Obama is *bracing for impeachment* instead of the lawsuit on executive discretion.  Too bad, we really need a court ruling on executive discretion.


So you continually bringing up the  Supreme Court  is just a f*rt in the wind and has nothing to do with the stopping the lawsuits in CA


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## mark handler (Jul 26, 2014)

conarb said:
			
		

> Mark:You don't understand, the Supreme Court is not going to rule on disability, it may rule on executive discretion, but the latest news is that Obama is *bracing for impeachment* instead of the lawsuit on executive discretion.  Too bad, we really need a court ruling on executive discretion.


So you want me to stop enforcing a law but you want to impeach Obama for not enforcing the laws of the land.


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## conarb (Jul 26, 2014)

mark handler said:
			
		

> So you want me to stop enforcing a law but you want to impeach Obama for not enforcing the laws of the land.


No, I want the courts to decide whether the executive has to enforce the letter of the law or can exercise discretion as to whether to enforce a law, and which parts to enforce and which not to enforce.  I think the test should be reasonableness, and much of disability law is not reasonable.


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## mark handler (Jul 26, 2014)

conarb said:
			
		

> No, I want the courts to decide whether the executive has to enforce the letter of the law or can exercise discretion as to whether to enforce a law, and which parts to enforce and which not to enforce.  I think the test should be reasonableness, and much of disability law is not reasonable.


Posting on this website will not help the courts decide whether "the executive" has to enforce the letter of the ADA law, that YOU do not want enforced.


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## conarb (Jul 26, 2014)

mark handler said:
			
		

> Posting on this website will not help the courts decide whether "the executive" has to enforce the letter of the ADA law, that YOU do not want enforced.


True, and why do you post incessantly on this website about accessibility?  At what point do you draw the line when it comes to enforcing codes?  The classic question is why the German soldiers shoved the prisoners into the ovens, if they had drawn the line way in advance it would never have happened, we now have all kinds of tyrannical laws, some in the codes like telling a man ho much water or energy he can use, forcing  him to recycle building materials, it's time to stop these totalitarian codes.

In the 50s and 60s a good friend of mine was Oakland's only black building inspector (a SE  BTW), the social engineers of that day decided to get rid of the black population by condemning their property, Oakland condemned and leveled all of West Oakland, San Francisco condemned and leveled all of it's Western Addition, Warren was assigned the job of red tagging all of West Oakland (he invited me along one day).  I see the social engineers of today no different than the social engineers of then, taking people's liberty and property away but from a 180° different perspective, mindless civil servants doing their job to keep their job.


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## mark handler (Jul 26, 2014)

conarb said:
			
		

> True, and why do you post incessantly on this website about accessibility?  At what point do you draw the line when it comes to enforcing codes?  The classic question is why the German soldiers shoved the prisoners into the ovens, if they had drawn the line way in advance it would never have happened, we now have all kinds of tyrannical laws, some in the codes like telling a man ho much water or energy he can use, forcing  him to recycle building materials, it's time to stop these totalitarian codes.


Yes I am a Nazi, because I enforce the law/code. Me requiring a ramp is the same as a German soldier putting a jew in an oven.

A police officer is a Nazi because he/she enforces drug laws.

You are a hero becase you think the laws/codes are totalitarian

now that we cleared all that up, time for one of us to take a pill....

I will contiue to post


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## ADAguy (Jul 26, 2014)

Unless they are "less than the minimum of ADA Standards" The revised 2013 CBC seems to have addressed this, no?


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