# Access disability threat still hangs over small business



## mark handler (Oct 18, 2015)

Access disability threat still hangs over small business

By Reed Fujii Record Staff Writer

http://www.recordnet.com/article/20151018/NEWS/151019723

Posted Oct. 18, 2015 at 4:44 PM

Small businesses in San Joaquin County and the rest of California remain vulnerable to thousands of dollars in penalty and legal fees for violating disability access rules since Gov. Brown’s recent veto of an Americans with Disabilities Act reform bill.

“It’s unbelievable,” Stockton business owner Jerry Brannon said over the news. “We need some help … so we can stop the extortion of money from small business.”

Senate Bill 251, authored by Sen. Richard Roth, D-Riverside, was among nine bills targeted by Brown because they provided state tax credits.

In his veto message, the governor did not consider the specific merits of the legislation but focused on his concern the state could face $1 billion in budget cuts next year.

“Given these financial uncertainties, I cannot support providing additional tax credits that will make balancing the state’s budget even more difficult,” he said.

Roth was “extremely disappointed” with Brown’s veto, a spokesman for the senator said.

“He’s going to explore whichever way he can to move this issue forward,” said Shrujal Joseph, Roth’s press secretary.

However, despite passing the state Senate on a unanimous 40-0 vote and winning a 70-6 majority in the Assembly, no effort will be made for a veto override.

The Sacramento Bee reported last week that Senate President Pro Tem Kevin de León, D-Los Angeles, ruled out efforts seeking to override any of Brown’s vetoes, saying the Legislature would instead focus on special-session issues such as transportation and health care.

Roth or other legislators who offered similar ADA reform bills could choose to try to revive their legislation next year.

But that leaves tens of thousands of business owners across the state open to disability access lawsuits, which call for a steep penalties even if any deficiencies are quickly remedied, said Kim Stone, president of the Civil Justice Association of California.

“The only way they can protect themselves against lawsuits is to hire a certified access specialist and make themselves ADA compliant,” she said. “If you’re not fully technically compliant, then you are vulnerable to a lawsuit.”

City building and health inspectors, as a rule, do not check for ADA compliance. Business owners, not their landlords, are responsible for violations. Once sued, there is no grace period to make corrections. Penalties can be $4,000 per violation plus legal expenses.

Roth’s bill would have allowed such notice, giving small businesses 15 days upon written notice or lawsuit to correct three types of violations: ADA required signs, parking lot striping and underfoot warning surfaces.

It would also have given businesses with 100 or fewer employees 120 days from the date of an inspection by a certified access specialist to correct any ADA violations found, during which time the business would be safe from statutory penalties.

Those were relatively minor reforms, said Stone, whose group seeks to protect businesses from frivolous litigation.

“It was a pretty small step, but it was a step in the right direction,” she said. “At this stage of the game, this bill was more and better than anything that has happened in the past decade.”

Stone said she would like to see Roth bring his bill back next year, but without the tax credits. Those credits would have helped business owners offset part of the costs of ADA improvements.

Brannon would certainly like to see some sort of ADA reform.

He’s due in U.S. Federal Court in Sacramento later this month to defend himself from Scott Johnson, a Carmichael attorney who is disabled and has made a career of filing hundreds of ADA violation lawsuits.

Brannon said he thinks he might prevail, but not because he corrected the disability access violations at a business he owns. The previous owners of the property in question settled a similar ADA lawsuit from Johnson and received an agreement that he would not sue again for 36 months.

“Hopefully, we’re going to get (the latest lawsuit) thrown out,” Brannon said.


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## ADAguy (Oct 19, 2015)

Wha, Wha, Wa! Roth still doesn't get it, nor does Stone.

Awareness of duty tom comply comes from "notification" on a regular/on-going basis. Tax credits are already in place.

Code aligns with 2010 ADAStandards, duty to enforce is now with AHJ's for new constructuion. Code enforcement has duty to investigate new construction completed since 2013CBC, can cite business and collect fines for failure to comply.

As to pre 2013, Title II's have had a duty to inform about ADA from day one. Their ongoing failure to do is resolvable if the AG's office would take a stand but her mind is elsewhere (smiling).

Thank you MH for the posting.


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## Msradell (Oct 19, 2015)

ADAguy said:
			
		

> Code aligns with 2010 ADAStandards, duty to enforce is now with AHJ's for new constructuion. Code enforcement has duty to investigate new construction completed since 2013CBC, can cite business and collect fines for failure to comply.


I'm assuming the duties enforced by the AHJ's that you are referring to is part of the California code not the federal code?  I've never read anything along the lines of the federal code is why I asked, did I miss something?


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## ADAguy (Oct 20, 2015)

Msradell said:
			
		

> I'm assuming the duties enforced by the AHJ's that you are referring to is part of the California code not the federal code?  I've never read anything along the lines of the federal code is why I asked, did I miss something?


That would be correct, Calif AHJ's can only enforce the CBC, as the CBC chapters 11a & 11B now mimic the ADAStandards with California amendments they must enforce the code. Unfortunately the code is not retroactive, however if a disabled person observes a post 2013 issue of non-code compliance for a permitted project then they must investigate it and can access a $2500/day fine for non-compliance. Imagine that, a revenue stream for building departments.


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## kilitact (Oct 20, 2015)

So, the building department goes back later for a missed code compliance issue investigation and can access  a $2500 a day fine. Does nobody see a self serving issue here? SB 251 would have solved the issues.


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## mtlogcabin (Oct 20, 2015)

> Imagine that, a revenue stream for building departments


Most "fines" have to be levied by the courts and wind up in the general fund. They are not an automatic revenue source for a building department and they never should be. Just imagine if a department worked that way and quotes where assigned to inspectors to "find" violations.

Brown vetoed it based on the state not be able to balance the budget because of the tax credits. He needs to come up with a better lie than that based on his spending approval record.


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## ICE (Oct 20, 2015)

Why should I pay for the folly of ADA?  I already have to chip in for the increased cost of goods and services because some idiotic ramp had to be built etc.  Here's hoping that Trump gets elected and shoves ADA into the trash can where it belongs.


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## conarb (Oct 20, 2015)

ADAguy said:
			
		

> That would be correct, Calif AHJ's can only enforce the CBC, as the CBC chapters 11a & 11B now mimic the ADAStandards with California amendments they must enforce the code. Unfortunately the code is not retroactive, however if a disabled person observes a post 2013 issue of non-code compliance for a permitted project then they must investigate it and can access a $2500/day fine for non-compliance. Imagine that, a revenue stream for building departments.


What has California done, if anything, to get around _*Board of Trustees of the University of Alabama v. Garrett*_, 531 U.S. 356 (2001), wherein the Supreme Court declared Title I of the ADA unconstitutional?


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## ADAguy (Oct 20, 2015)

???? On what basis did the SC determine T-1 to be discriminatory? 16% of state employees have disabilities and we actively seek more.

Anyone in the Sacramento area want to provide a disabled young man with CAD skills acquired in CC, his first professional opportunity?

He has transportation, uses a WC and requires communication aides but he can do CAD work.


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## conarb (Oct 20, 2015)

ADAguy said:
			
		

> ???? On what basis did the SC determine T-1 to be discriminatory? 16% of state employees have disabilities and we actively seek more. Anyone in the Sacramento area want to provide a disabled young man with CAD skills acquired in CC, his first professional opportunity?
> 
> He has transportation, uses a WC and requires communication aides but he can do CAD work.


ADAguy:

I've linked it to you guys several times, it's sovereign immunity, the same constitutional principle that protects incompetent building departments.  Since you don't seem to understand the legal writing here is *Board of Trustees of the University of Alabama v. Garrett**, 531 U.S. 356 (2001), For Dummies**.*

When any rational person thinks about it the entire ADA should be considered unconstitutional on the basis of First Amendment freedom of association, the only time I know of that a challenge was made Justice Brennan made the determination that protecting Negroes was a compelling interest that overrode freedom of association, and of course women, handicapped, old people, and other Suspect Classes were encompassed within that opinion.  I don't know if you are old enough but even now my car mechanic has a sign on the wall stating: "We reserve the right to refuse service to anyone", every bar had those signs so they could throw out drunks, I pointed out to him that the sign was now illegal, he could no-longer refuse to serve blacks, gimps, women, or old people.

It's interesting now that the Suspect Classes were established by _*Korematsu v. United States*_, 323 U.S. 214 (1944), was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship, and now 60 Asian groups, including Japanese groups, are suing  Harvard for using suspect classes to discriminate against Asians and for Negroes. ¹

¹ http://www.wsj.com/articles/asian-american-organizations-seek-federal-probe-of-harvard-admission-policies-1431719348


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## ADAguy (Oct 21, 2015)

conarb, you are "deep" as are many "skeptics". That would correctly describe you, yes?

Then again information such as you have posted is of interest even as it grows musty and is often overlooked with age.

If our country was only made up of "I's" would it have progressed so far?

By being "we's together" in spite of our "some of" our differences, are we not a better place to be (or what would you hold out to be a better place?)?


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## conarb (Oct 21, 2015)

ADAguy:

You advocates of discriminatory laws seem to think enforcing minutiae, like the width of a door or parking spot, to the tenth of an inch is important, yet ignore a major Supreme Court decision because it gives special privileges to a favored group at the expense of others. I'd say if sovereign immunity doesn't protect cities in ADA cases is shouldn't in any cases, every time there is a construction defect is found the damaged party should sue the AHJ; after all, it was their job to inspect it.


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## steveray (Oct 21, 2015)

It will be coming to that Conarb.....


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## mtlogcabin (Oct 21, 2015)

Conarb

Article I deals with employment discrimination.

 The court case has nothing to do with Article II requirements.

Mark has given many examples of local and state governments losing ADA lawsuits based on Article II requirements.


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## ADAguy (Oct 21, 2015)

What say you to "That" conarb?


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## conarb (Oct 21, 2015)

From the ADA's own website:



			
				\ said:
			
		

> III. PROTECTING THE CONSTITUTIONALITY OF THE ADAThe Department has been actively engaged in defending the constitutionality of the ADA. The Department intervenes in private suits across the country to defend the constitutionality of the statute against challenges by state defendants.  In early 2001, the Supreme Court limited the reach of the ADA by holding in Board of Trustees of the University of Alabama v. Garrett that a private individual may not, consistent with the Constitution, sue a State or state agency to enforce the employment discrimination protections in Title I of the ADA. The Court held that States are protected from such suits by sovereign immunity under the Eleventh Amendment.  Following earlier decisions holding that Congress may remove States' immunity only when acting pursuant to its powers under the Fourteenth Amendment, the Court in Garrett held that Title I's prohibition of discrimination on the basis of disability went beyond Congress's authority under the Fourteenth Amendment.  Thus plaintiffs may not sue a State directly to enforce Title I.¹


What I'd like to see is someone with the balls like the ACLU to take them on a 1st Amendment Freedom of Association basis.

¹ http://www.ada.gov/5yearadarpt/iii_constitionality.html


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## ADAguy (Oct 22, 2015)

conarb said:
			
		

> From the ADA's own website:What I'd like to see is someone with the balls like the ACLU to take them on a 1st Amendment Freedom of Association basis.
> 
> ¹ http://www.ada.gov/5yearadarpt/iii_constitionality.html


So you agree, the decision was with regards to employment, not removal of barriers.

It is constitutional to require barrier removal and not to disallow services except where the is a perception of a "direct threat".


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## mtlogcabin (Oct 22, 2015)

The Garrett opinion, however, does not bar all ADA actions challenging state and local government policies or practices. The Court made clear that the federal government may continue to sue States for injunctive relief and money damages under Title I, and that private individuals may sue state officials in their official capacities as long as the plaintiffs do not seek money damages. Also, the Garrett decision only prohibited Title I suits against state governments, not cities or counties, because sovereign immunity as embodied in the Eleventh Amendment does not apply to local governments. Moreover, the Court left open the question whether private individuals may sue States under Title II, as opposed to Title I.

¹ http://www.ada.gov/5yearadarpt/iii_constitionality.html


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## ADAguy (Oct 22, 2015)

Thank you MT for further clarifying the Garrett opinion, contrary to Conard's interpretation.

Unlike poker where the cards you are delt are what you play, in America each of us in entitled by the Bill of Rights to equal enjoyment subject to the laws, rules and regulations we establish.

Form your own country Conard or do as the Canadians just did and vote out the old in favor of "your" ideas.


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## conarb (Oct 22, 2015)

For those interested here is an article here is a University of Minnesota *article on Garrett* and other cases they claim are Supreme Court cases putting the ADA under assault.


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## kilitact (Oct 22, 2015)

As a result of the decision in United States v. Georgia, many Title II cases pending in appellate courts are being sent back to district courts to determine whether they can be upheld because they seek to enforce Title II rights that do not go further than those protected by the Constitution. Equal rights has provided in the constitution.


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## conarb (Oct 22, 2015)

\ said:
			
		

> Equal rights has provided in the constitution.


Let's get this straight, the  Civil Rights Act was just that, an Act of Congress, not an Amendment to the Constitution, it's not a constitutional right its a law and a very bad law that many of us feel ought to be overturned as unconstitutional.


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## ADAguy (Oct 23, 2015)

Softening are we now? This is some good stuff.


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## kilitact (Oct 23, 2015)

14th amendment to the Constitution.


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## mark handler (Oct 23, 2015)

kilitact said:
			
		

> 14th amendment to the Constitution.


You mean. "....the equal protection under the law." Say it isn't so


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## conarb (Oct 23, 2015)

kilitact said:
			
		

> 14th amendment to the Constitution.


You have a point, the 14th Amendment destroyed state's rights allowing Congress to pass laws that that controlled the rights of the states.  The south had every right to secede, Lincoln stated on several occasions that if he could have kept the union together if he didn't free one slave if he could have, there are some that think Lincoln was our worst president because of the 14th Amendment. We are now the most hated empire the world has ever seen, read the international press and you will see how hated we are.  After WWI Wilson started the formation of the League of Nations to conquer the world, the U.S. citizens wisely stopped it, believe it or not, like any government agency the League of Nations still exists in Switzerland.  After WWII Roosevelt planned to start the United Nations (he died and Truman actually did it) and we have been in constant wars to rule the world ever since.  The plan in creating the United Nations was to pattern it after the United States, at first a forum to resolve issues then the United Nations would rule the world with something like the 14th Amendment to give all power to the world body.  I've posted before George H. W. Bush's New World Order speech, the United Nations has published it's Agenda for the 21st Century wherein the United Nations would rule one big socialist New World Order.  All these civil rights are incorporated in Agenda 21, we are so hated because we are the military out conquering the world to impose this agenda on the world, fortunately for the world Russia and China are getting together to block us.  We are forcing the world to become democracies and observe our ideas of human rights, we have killed more people than any other empire.  We have 1,000 bases in foreign countries and a few hundred Special Operations bases as well, yesterday was the 5th anniversary of the Wikileaks release that showed the U.S. government knew we had killed 100,000 Iraqis to give them a democracy and human rights.  It is none of our freaking business if Iraqis want to cover the women's faces, it's none of our business if Somalians want to circumcise their women, it's none of our business if many nations want to keep certain of their people in slavery.  Obama stated "I believe in American exceptionalism", Putin countered that American Exceptionalism has to end, he also has stated that the Soviet Union after WWII tried to impose their system on other parts of the world, and stated that they were wrong.  It's time we stopped trying to impose our system on the entire world.

We are attacking other nation's religions to try to impose our social justice religion, look st this gay rights thing, in the Islamic religions sodomy is a crime warranting the death penalty, we've got no right to force other nations to accept sodomy, the same with handicapped rights.  I've got relatives in Germany who hate us, we are still occupying both Germany and Japan 70 years after the end of WWII, we created ISIS to attack Assad and now we are sending millions of refugees into their societies to integrate them into the New World order, I didn't like Jimmy Carter when he was president but now that he's facing death *he is actually helping Putin stop our war. *


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## ADAguy (Oct 23, 2015)

"Created" ISIS! How dare you infer!???? No one in their right mind would unleash that plague on the world.

Do you also support dictators with children armies as allowable because they are not a threat to us?

I get it, we benefit from arms sales to all these uprisings around the world, as do the Russians, Chinese and Germans too.

Hang on to your irons before that try to take them from us.


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## MASSDRIVER (Oct 23, 2015)

ADAguy said:
			
		

> "Created" ISIS! How dare you infer!????


That's turning out to be fact. I will try to compile some source information for you this weekend. I'm not talking Infowars crap either, but evidence ranging from Noam Chomsky leftist views to military and state strategists.

I didn't believe on the face of it either.

Brent.


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## mark handler (Oct 23, 2015)

ADAguy said:
			
		

> "Created" ISIS! How dare you infer!???? No one in their right mind would unleash that plague on the world.Do you also support dictators with children armies as allowable because they are not a threat to us?
> 
> I get it, we benefit from arms sales to all these uprisings around the world, as do the Russians, Chinese and Germans too.
> 
> Hang on to your irons before that try to take them from us.


The US did not create ISIS but the removal of American troops created a security vacuum that ISIS took advansge of to spread.


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## conarb (Oct 23, 2015)

mark handler said:
			
		

> The US did not create ISIS but the removal of American troops created a security vacuum that ISIS took advansge of to spread.


Bull****, we armed the rebels to take down the duly elected President of Syria because Assad was allied with Russia, we euphemistically call it "Regime Change".  We armed them and to this day they are using American armaments and equipment, we have made such a mess out of it that the Russians are finally coming in and taking out ISIS and protecting the dully elected regime in Syria from the American Empire, just like the intercepted phone call from our Under Secretary of State Victoria Nuland showing that the United States had spent $5 billion dollars unseating the duly elected President of the Ukraine and installed a U.S. puppet ruler to try to get more NATO bases on the border of Russia.  Russia and now China are the biggest threat to America conquering the world and installing the New World Order, if that happens they'll have to obey the International Codes just like we do, and have our Human Rights agenda shoved down their throats.  We have no business over there, it's no wonder that people all over the world despise us and want to destroy us, that includes some of our so-called allies that are in it for the money, we have to keep our warfare state going to support our socialistic welfare state.


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