# Don't Blame the ADA



## jar546 (Dec 22, 2013)

Blame predatory attorneys, not ADA

Chris Jones/My WordPOSTED: **12/22/2013 02:04:49 AM*PST http://www.times-standard.com/guest_opinion/ci_24776139/blame-predatory-attorneys-not-adaPorter 

Street Barbeque in Arcata was closed in response to a lawsuit claiming accessibility violations under the Americans with Disabilities Act.  In our community some people become outraged that the “government” (ADA) interferes with the rights of business owners while others hold that business owners are discriminating against people with disabilities by not complying with a law established over 25 years ago.  I believe the answer is not so simple. 

First: People with disabilities should never be excluded from access to business and services. 

Second: Businesses should be not forced to close because of frivolous lawsuits instigated in the name of accessibility.This is not a disability issue, *it is an attorney issue.* 

Attorneys who prey on small businesses are predators. They have no desire to fix the problems. It seems that they are just looking for a quick buck resulting in small businesses such as Porter Street and Arctic Circle, already struggling, being forced to close.There are valid violations of the ADA. A business owner simply cannot nor should not fail to comply with a law that has been on the books for 25 years. One frequently stated opinion is that one may have to spend thousands of dollars to make their place accessible therefore they do nothing. Some organizations really do merit lawsuits for ADA violations. They are ignoring the law by failing to make their places of business accessible. Simply disagreeing with a law does not give one the right to break it.A person with a disability cannot do business at various stores when they are inaccessible either because there is no ramp, stairways are too steep or doorways are too narrow. Aisles in some stores are too narrow to pass through, counters are so high that one cannot reach, or the accessible restroom stall has a lock on it that is so high up that one cannot reach it in order to lock the door once in the stall.For hundreds of years people with disabilities faced these kinds of discriminatory practices. The ADA ensured that people could get jobs, ride buses, go to school, shop in the grocery store, eat in nice restaurants, go to the movies -- in other words, do all the things that everyone else takes for granted as a legitimate right.

When attorneys make profits from the law, the people they hurt are people with disabilities. This notion of hurtful lawsuits becomes associated with a person with a disability and thus, a person with a disability is considered as someone willing to sue a poor business owner just to get rich. I once heard an angry women say about the closure of the Arctic Circle that “the disabled” should go to other places and not burden the poor business owners.  California recognized these truths in 2006 and again in 2012 when the business and disability communities came together to create legislation to prevent these types of lawsuits with legislation to try to prevent these types of closures and intimidation from happening.  SB 1680 clarifies and amends disability access laws to reduce the unwarranted “drive-by” lawsuits that have plagued California for years.SB 1186 established specific guidelines/requirements which attorneys filing accessibility-related lawsuits must abide by and also made it a punishable offense to not follow the guidelines, thereby deterring unscrupulous lawyers, protecting businesses and educating the public.

My education in remedying accessibility problems came from an enlightened restaurant owner in Eureka who once told me that most of the problems are “screwdriver fixes” meaning they really aren't all that expensive. Other fixes are not inexpensive but might not be as bad as one imagines. Better to at least begin to identify those accessibility issues and determine how to fix them.In order to protect our community businesses, people need to take action. There is no reason for either decent business owners or people with disabilities to be the fodder for the coffers of greedy attorneys who don't care about the well-being of our community. However, by denying the law and hoping that they won't get noticed, business owners are taking a terrible risk.*  If family businesses like Arctic Circle and Porter Street can be sued, any business can. I urge businesses not to run away from this issue. I liked Porter Street. I ate there frequently. I want to continue to frequent my favorite establishments and I want the people my agency serves to frequent them as well.

Chris Jones is executive director of Eureka-based Tri-County Independent Living.


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## MASSDRIVER (Dec 23, 2013)

The ADA opened the door. Actually, it kicked the door off the hinges. You could call it an enabler.

A person could say they really didn't see the consequences of their actions at the beginning.

A person could also say it was designed to be that way to create another avenue for DOJ expansion, and the inception of a lucrative cottage industry from many different angles.

Either way, the authors were short sighted and dumb, or were deliciously visionary in a statist sort of fashion.

It certainly made it _accessable_ for attorneys and beaurocrats.

You can pick  

Brent.


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## Msradell (Dec 23, 2013)

I keep reading various aspects of this argument on this form and elsewhere and don't really understand it in many ways.  Certainly the majority of this type of lawsuit are found in California because of the state statutes that allow the lawsuit to proceed very easily.  There are a couple of other states were significant number of lawsuits have been filed but in the majority of states that have been very few lawsuits filed over ADA violations.  As a matter of fact in many states, including here in Kentucky, it's even hard to get a lawyer to talk to you about filing such a claim!  They don't want to fight the hassle for such a small return.  That leaves those of us who really need accessibility without much recourse.  Of course we can file a Pro Se lawsuit but those are extremely time-consuming and much of the filing has to be done in person instead of online like lawyers can do.

It seems like maybe the problem isn't with the ADA itself but rather with how some states allow enforcement to occur and how other ones don't.


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## MASSDRIVER (Dec 23, 2013)

Msradell, have you ever had any luck approaching owners or managers on a personnel level to correct shortcomings you see? I'm just wondering how these people react if you say you like patronizing a store, been doing it for awhile, but they need some updating.

It seems like most of the lawsuit problem is people going into a place with pen and paper looking for trouble instead of solutions.

Brent.


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## RJJ (Dec 23, 2013)

I have to agree with Brent on solutions. The lawsuit issue is just another place for lawyers to make money and the end result is that problems still exist. I hear excuses all the time from business owners and contractors on having to comply. Sometimes I think what heartless people I deal with.

I often wonder how they will react to this situation when perhaps it is their Mom or Dad or another family member that is placed in this situation. Something to ponder!


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## tbz (Dec 27, 2013)

The way I see it, is that the Feds didn't provide the local push for local enforcement through local inspections.

Pretty much all AHJ require a mass percentage of businesses to have annual fire inspections, health inspections or some sort of review.

If back in 1992 someone had said, the states need to within 6 years have a way of enforcement in place either through re-inspection from building departments or annual inspections through fire departments or other and within 6 years of that date, business had to be compliant and started getting notices from the date the states had to have local enforcement in place then businesses would have had 12 years to become compliant of which they would have had 6 years of issued notices and none of this would have even been an issue by now and the funny thing is no one could have argued with anyone.

By golly when the ADA act was signed in to law, it is like the Jay walking law in NYC, its' there but who really does anything to enforce it, so most look at it as a joke until they get hit in the face, and those that really don't know are not part of the (access requirement word) and don't see the issue as something needed.

Though many of you might say its not the states requirement, well how many AHJ have adopted building codes compared to those that don't...and how many of those adopted building codes are inline with the ADA access requirements?

How many AHJ have health inspections and fire inspections annually or bi annually, I would venture a guess the vast majority of the states and or AHJ had a way to cover this.

But then again, it just wouldn't be the same if they actually did something thinking it through first...

So now 20 plus years later though many may say it is an old law, it was never properly implemented right IMO and thus to 90% or more of the public they look at it like Jay walking.....


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## Msradell (Dec 28, 2013)

MASSDRIVER said:
			
		

> Msradell, have you ever had any luck approaching owners or managers on a personnel level to correct shortcomings you see? I'm just wondering how these people react if you say you like patronizing a store, been doing it for awhile, but they need some updating.It seems like most of the lawsuit problem is people going into a place with pen and paper looking for trouble instead of solutions.
> 
> Brent.


Actually, I've tried doing this several times.  A couple were successful, a few weren't.  Some places are just very hardheaded and still don't believe that the ADA applies to them no matter what.  Even when you show them the specifics of why it applies they don't believe you.  I can to you about one business, a jewelry store, who because they weren't accessible for our business (even though we had used them for years prior to me becoming handicapped) lost enough business on one sale to make the record modifications!  It's all about attitude of the owners.  Unfortunately in this area other than filing a federal lawsuit yourself there's not much recourse.


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## Frank (Dec 30, 2013)

The Feds did not provide for local enforcement because they have no Constitutional authority to require the states to enforce Federal Laws, there can be incentives for doing so but there is no authority to mandate it.



			
				tbz said:
			
		

> The way I see it, is that the Feds didn't provide the local push for local enforcement through local inspections.Pretty much all AHJ require a mass percentage of businesses to have annual fire inspections, health inspections or some sort of review.
> 
> If back in 1992 someone had said, the states need to within 6 years have a way of enforcement in place either through re-inspection from building departments or annual inspections through fire departments or other and within 6 years of that date, business had to be compliant and started getting notices from the date the states had to have local enforcement in place then businesses would have had 12 years to become compliant of which they would have had 6 years of issued notices and none of this would have even been an issue by now and the funny thing is no one could have argued with anyone.
> 
> ...


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## mark handler (Dec 30, 2013)

Frank said:
			
		

> The Feds did not provide for local enforcement because they have no Constitutional authority to require the states to enforce Federal Laws, there can be incentives for doing so but there is no authority to mandate it.


And that is why many states have added requirements in their statutes that you must comply with the ADA


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## tbz (Dec 30, 2013)

Thanks for the History lesson guys, even with that, I do believe with all the other money they blow they could have spent some to get the states to put in enforcement, funded by the feds, enforced locally.

I do believe, something a lot better than this could have been worked out.


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## mark handler (Dec 30, 2013)

tbz said:
			
		

> I do believe, something a lot better than this could have been worked out.


Written and modified by congress, surprise anything "could have been worked out."


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## jar546 (Dec 30, 2013)

So basically we have a law on the books which is a reactive enforcement law (on occasion) by the DOJ that causes businesses to ignore and use the fact that there is no local enforcement as an excuse for non-compliance?

Sort of like speeding because you don't see a police car, taking your chances for the benefit of getting to where you are going on time instead planning your day and leaving earlier.


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## RJJ (Dec 30, 2013)

I think you summed it up pretty good Jeff!


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## MASSDRIVER (Dec 30, 2013)

Actually it's more like not registering an assault rifle because a non constitutional law was passed and biding your time until sensibility returned.

Or like hanging on to all your booze during prohibition until bad law was amended.

It's more like that.

Brent


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## mark handler (Dec 31, 2013)

Actually it's more like a non-licensed contractor continue to do work, thinking the state agency is too busy to catch him/her.

like the buisness owner is in denial that the ADA lawsuit will happen to the other guy, because I'm grandfathered in.

It's more like that.


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## MASSDRIVER (Dec 31, 2013)

mark handler said:
			
		

> Actually it's more like a non-licensed contractor continue to do work, thinking the state agency is too busy to catch him/her. like the buisness owner is in denial that the ADA lawsuit will happen to the other guy, because I'm grandfathered in.
> 
> It's more like that.


That makes no sense. You basically can't run a business without some kind of license. I'm unlicensed now so I'm among the gainfully employed until I have sufficient blood money to reinstate. So no business.

The second part is true. But might result in them going out of business anyway. Mission accomplished I guess.

Brent.


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## mtlogcabin (Jan 2, 2014)

Actually it is a Federal Government that adopts to many regulations that are unenforceable without continually growing the government and/or its agencies. The politicians adopt a law after law after law so the people believe they care and are doing something about a perceived problem when in reality they know full well it will have minimal impact or enforcement behind it. The laws sit on the books as a tool when needed to be used.


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## MASSDRIVER (Jan 2, 2014)

And can be selectively enforced.

See immigration law.

Brent


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## Frank (Jan 2, 2014)

MASSDRIVER said:
			
		

> That makes no sense. You basically can't run a business without some kind of license. I'm unlicensed now so I'm among the gainfully employed until I have sufficient blood money to reinstate. So no business. Brent.


All kinds of unlicensed businesses operate.  Think dope dealers, except in Colorado.  There are plenty of "handymen" and gypsy "contractors" that work off one truck and do not have a license and do not get permits.  Even when caught they are often hard to prosecute because people do not want to admit they have been taken with shoddy work.


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## Paul Sweet (Jan 3, 2014)

The IBC & ANSI A117.1 are well-coordinated with ADA, and include 90% or more of ADA requirements, as well as Fair Housing Act, and other federal accessibility legislation.  The building official isn't doing his job when somebody modifies a pre-ADA building and doesn't doing anything to improve any existing non-compliant features.  The only ADA requirements that the unamended IBC leaves out are operational issues that don't belong in a building code.  I believe that they are included in Appendix E, if the AHJ chooses to adopt it.


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## mtlogcabin (Jan 3, 2014)

> The building official isn't doing his job when somebody modifies a pre-ADA building and doesn't doing anything to improve any existing non-compliant features.


Chapter 34 and the IEBC are limited in accessibility requirements when compared to new construction.


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## Msradell (Jan 3, 2014)

mtlogcabin said:
			
		

> Chapter 34 and the IEBC are limited in accessibility requirements when compared to new construction.


That's one fact I was certainly thinking about.  In addition many businesses avoid making ADA compliance modifications because they don't change the use of the building and thus fall into the cracks of the code.  Somehow the codes need to incorporate the 20% rule that's in the ADA into any building changes, if they get this it would certainly help in many cases.


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## mtlogcabin (Jan 3, 2014)

The 20% rule is in the codes. My state specifically calls for it also. However where it is spent is required to start in the parking lot, accessible route to the primary function area. Then the primary function area which includes restrooms. The problem here is most smaller businesses just move in with minimal "paint or wall paper" modifications. A little shelving or a few cabinets and counters and that is it. We can usually get he accessible parking through zoning and the accessible route into the building but after those cost then they have exceeded the 20% rule.

We do not have an occupational license requirement so half of them move in without our knowledge. In all honesty most are out of business within 6 months


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