I beg your pardon, I’m not.
I’ve been to various Parades of Homes and seeing the innovative things thatthe top architects, designers, decorators have done with these homes is amazing.
I’m sorry you are incapable or unwilling to understand the appeal of home design and decoration, but please, should you wish to disparge those of us who are able to appreciate it, please, take it to the pit.
Fenris
The general idea in a democracy is that the people’s elected representatives make the laws. Any law which tends to give much of the “lawmaking” authority to unelected judges takes away from this democratic process.
Re: “Reasonable”, and other words bureaucrats use
I am in the process of restoring an old building in Calvert, Texas. The building was originally built in 1876 as a jail for Robertson County, but the county seat moved to Franklin, Texas around 1890 and it served most of its life as a residence of some sort. I undertook the restoration because of a family connection to it.
Early on I made the mistake of accepting a $10,000 grant from the Texas Historical Commission with the understanding that I would follow the restoration guidelines laid out by the Secretary of the Interior. The guidelines seemed reasonable to me especially since they used terms like “reasonable efforts”, and said that certain things were “recommended” and “not recommended”, etc.
I was all set to turn it into a restaurant and market it something like the “Old Jailhouse Restaurant” or “The Calaboose Diner”, and I wanted to celebrate the parts of the building that showed that it was once a jail. The THC however felt it was more “appropriate” to restore the building as it was when it was a residence. Their correspondence with me talked about the inappropriateness of what I was doing and offered their “recommendations” as to what I should do.
Well, I went around and around with them and it became obvious they weren’t going to budge. In my last meeting with them I challenged them on their use of the term “recommend”. I said, “I looked it up, and just as I thought “recommend” means “suggest”, or “advise”; but when you use it, it seems to mean “require”. I pointed to a specific instance of their use of the word and said, “Specifically, when you use “recommend” here, you really mean “require” don’t you.” After a long silence, the woman in charge said “Um, well…yes.”
So if bureaucrats are going to use their own definitions of straightforward words like “recommend”, who knows what they’ll do with something like “reasonable”.
OTOH, if “recommend” really means “recommend”, than its pointless to make it a condition of the grant. Anyone can recommend anything. That should have been a tip-off that they meant something more. (Not that it’s an excuse).
(slight hijack)
"The THC however felt it was more “appropriate” to restore the building as it was when it was a residence. "
Ugh. Let’s say I want to ask the status of this project and post a new thread to do it (so as not to hijack this thread). Which board would be appropriate for that question??? Tough to get used to SDMB.
Screw it. I’ll be a jerk and ask here
What is the staus of this project?
Will it be a restaurant?
Did you give back the 10grand?
Can you give it back and tell 'em to stuff it or are you contractually obligated to do as they say since you accepted their money?
But juries* are not making the law here. The law is that the defendant must make reasonable accomodations. What’s reasonable is a question of fact, just as it is in every other area of the law. That includes criminal law, by the way. So is it undemocratic for a jury to decide whether a criminal defendant’s response to a situation was unreasonable?
*It is primarily juries who decide what’s “reasonable,” in the ADA and elsewhere. Judges decide only the outer bounds of what must be and cannot be reasonable.
minty green
My understanding is that juries are responsible for findings of fact; judges, for findings of law. If this is correct, then the judge and jury would each have a role. To the extent that a judgement must be made as to whether the defendent has conformed to a known standard of “reasonable”, then it would be up to the jury to make this determination of fact. But to the extent that there is some ambiguity as to the very definition of the term “reasonable”, it would be up to the judge to define this for the jury. It seemed that earlier you agreed that the term “reasonable” was ambiguous, which would seem to mean that the judge has a major role.
But judge or jury, the point is the same. If indeed the wording of the law is ambiguous and the very meaning of the law must be constantly determined and redetermined by judges or juries, it detracts from the democratic process (again - as opposed to a pure finding of fact which would not).
Correct.
You’re not gonna like this, but the “known standard” for whether something is reasonable is pretty much wide open. My Black’s Law Dictionary says it’s “Fair, proper, or moderate under the circumstances,” and the judge’s instructions defining “reasonable” would undoubtedly be similar. What’s reasonable is probably the most frustrating recurring question in the law, but it’s a practical necessity if you want to get anything done.
The meaning of the law is settled and never changes–you’re required to make reasonable accommodations. The fact finding is determining what is reasonable, given the millions upon millions of different factual circumstances. Congress could not possibly have anticipated them all, so they did the sensible thing and just made it a squishy standard that covers all circumstances, rather than easily-avoided rigid standards.
But maybe you can do better. Therefore, feel free to draft an equivalent of the ADA’s “reasonable accommodations” requirement that (a) accomplishes the same goals of access for the disabled and (b) spells out exactly what will be required in any and all circumstances so that can never be any doubt what kinds of accommodations are required. But remember, if you miss anything, then you haven’t accomplished Congress’ goal. Good luck, and I’ll be sure to check back on your progress upon my return!
I don’t think it is a matter of specifying actual examples. Few laws (if any) do that. But I find it hard to believe that with all this legal mumbo-jumbo jargon out there there is no language available that could give a more precise outline than “reasonable”.
Maybe. So vote for me, and you won’t have any more of this nonsense going on in Washington…
I don’t think any law can spell out “any and all circumstances”*. But there seems to be an inordinate amount of confusion with this one.
Fenris
Just to answer your question about doors. The ADA requires a minimum of 32" clear opening. By default, most architects will just make the doors 36", which gives more than 32" clear opening. Bathrooms, however, usually get a smaller door because it’s usually tight in there and giving up that much space to a door swing is something that builders will not like to do. Now I like a roomy bathroom, but its hard sometimes to justify the square footage it costs.
And IzzyR, I don’t think there is an “an inordinate amount of confusion with this one”. The standards for ADA are fairly clear and following the guidelines, especially in new construction, will get you through. Every job I’ve worked on has been reviewed by the State Accessibility Board for compliance, which is a good check. It’s in renovation that things get tricky (is there space to put in an elevator, can I get a 5’ turning radius without moving a wall, etc.). IMO that’s where most lawsuits happen, where you made a comprimise that someone else doesn’t agree with.
Fair enough, if every case had to be decided from the beginning, in a vacuum, on its own merits. But the ADA law has been around for a number of years, and precedents that effectively define “reasonability” have been established for a pretty large number of common circumstances. Building codes may be the most prominent example of all - it is not necessary to go to court to establish the minimum width of a door that will pass a wheelchair, or even to establish that doors must “reasonably” meet the requirement. There’s no ambiguity in saying that doors in new or renovated public buildings must be at least 32 inches wide, even if the law only uses the word “reasonable”.
Other effects of ADA, such as teaching requirements for learning-disabled children, are similarly defined by numerous precedents and not warm, fuzzy, statements of principle.
The whinger in the OP should meet some of the wheelchair-bound folks who frequent my favourite beach. Their definition of reasonable entails asking 4 or 6 people to carry them and their chair down the 200 metre cliff to the sand-- and then asking some other folks to carry them back up.
C’mon! Asking people to carry them back up the cliff? Don’t they know that if they faked heatstroke they could get a ride on the Coast Guard hovercraft!
Actually, Elvis, I think the new building guidelines are probably the result of regulations issued by the Secretary of Health & Human Services (unde authority granted by the ADA). To tell the truth, I’m not sure whether those guidelines would apply here–since these houses would not ordinarily be a place of public accommmodation–or whether it’s the reasonable accommodation standard that applies elsewhere in ADA law. epeepunk deals with this stuff all the time, so he may have a better idea than I.
Nevertheless, your point is perfectly accurate w/r/t the reasonable accommodation standard. Ten years of precedent have filled in a whole lot of what’s reasonable and what isn’t.
Disclosure: I adore the ADA. My uncle was paralyzed 17 years ago, and he has benefitted big time from the protections of the ADA. He’s smart as can be, and able to do things with computers that astond me. Other than wheelchair ramps, reasonably sized doors, and accessible bathrooms, he needs basically nothing as an accommodation. (Heck, he and my aunt just went rafting down the Snake River last month.) Although many employers and businesses were already doing a decent job before the ADA, it only takes a few recalcitrants to make life extremely difficult. The ADA ensures that he remains a valuable contributor to life in his community, rather than a home-bound drain on public resources.
Elvis (and minty)
My comments were in response to the assertion by december that the ADA was “bad for democracy” and minty’s request for an explanation. The fact that judicial precendent has succeded in clarifying the issue has no bearing on this.
Is this true? Or maybe I should ask, what constitutes a public event?
I used to work at The Nature Conservancy, which sponsors guided nature hikes for members. Some chapters of the organization publicize their hikes and open them to non-members. In either case, would these events be considered public?
The Conservancy did make an attempt to accomodate members of various abilities. For example, I co-lead a number of hikes, and once escorted an elderly hiker back to her car when she decided she shouldn’t go farther, while the remainder of the participants continued on with the other hike leader. But I don’t see how a hike can be made accessible to a person in a wheelchair.
Some thoughts on both the original topic and the rather absurd side discussion on the role of courts:
The lawsuit mentioned by the Original Post is probably without much merit. It’s hard to comment on such things without reading the complaint (let alone having acess to the eventual discovery materials generated. For instance, you will note that the article in the Rocky Mountain News only mentions access issues, such as parking, paths, and doors, as opposed to the mention in the OP about complaints regarding counter hight, etc. Access is more centrally germain to the ADA rationale than would be the concept that the constructed homes shown should be disabled person friendly, and I suspect that is the gravamen of the complaint filed.
Now, some terminology issues. Please note that the link in the second post is not to the ADA itself, but rather to the federal regulations promulgated by the Department of Justice to implement the ADA (the ADA specifically expected that much of its scope and breadth would be defined by such rules, an issue to be addressed anon). A “place of public accomodation” does not have to make “reasonable accomodation” of disabled persons under the ADA. That term comes from Title I, dealing with employment of disabled people. Title III requires that a place of public accomodation not discriminate against a person with a disability. Among the listed types of specific discrimination is a failure to make a reasonable modification that wouldn’t fundamentally alter the nature of the goods or services offered by the place of public accomodation. There are other general and specific types of discrimination set forth by the ADA. See generally 42 USC 12182.
Is the Parade of Homes a “place of public accomodation?” Well, that term isn’t something thought up just for the ADA. That term has a very long history of broad interpretation, having been used starting in the 60’s in the various civil rights acts that prohibited racial discrimination. As you might suspect, the term covers just about any business out there that deals with the public. And, indeed, in 42 USC 12181, we see that subsection (7) (H) includes “a museum, library, gallery, or other place of public display or collection.” With broad interpretation, it is likely that a display of homes to show off architectural and design features would therefore be a “place of public accomodation”. After all, the PGA Tour was a “place of exercise or recreation” (Subsection (7) (L)).
Did the Parade of Homes discriminate against disabled people in violation of the ADA? Well, let’s look at the specific types of discrimination established in the ADA. One can discriminate by establishing discriminatory eligibility standards, which doesn’t seem applicable here. One can discriminate (as already noted) by failing to make reasonable modifications of policies, practices or procedures, unless doing so would fundamentally alter the nature of the business. Possibly, here, the Parade could have included more specific efforts to provide access, but it doesn’t seem that the gravamen of the complaint adresses this type of discrimination. Failure to take steps to ensure no person will be discriminated against because of the absence of auxilliary aids or services is discrimination. And failure to remove architectural barriers, unless the removal is not “readily achievable” is discrimination. Here we find the sticking point over which the suit is filed.
The homes shown were not built with the wheelchair-bound in mind. Should the Home Builders Association have been forced to modify the homes to hold the Parade? If not, what auxilliary aids should be provided? Could the Parade provide temporary ramps to the front door? Probably. Could the Parade have provided something other than gravel paths? Quite possibly. Bathrooms that were wheelchair accessible? Unlikely. An alternative? How about wheelchair accessible portable bathrooms? See how truly easy this gets?
In my past history dealing with ADA issues, I have found that the biggest difficulty is overcoming initial resistance to the concept that ANY attempt to facilitate handicapped access should be made. Now I’m not saying that advocates for the disabled don’t on occaision go a bit overboard in their demands. But usually, such suits as this get filed only after an attempt is made to get the provider of the “place of public accomodation” to sit down and agree to reasonable efforts to facilitate access and use, and the provider resists such efforts. You will note in the Rocky Mountain News article that the Home Builders Association conceded that access issues existed. If, as asserted in the OP, the event takes in $1.5 Million, then certainly some of that could have been spent on some simple efforts to provide reasonable access that doesn’t stigmatize the disabled.
Which is not to say that the complaint is valid, simply that the issues reported in the paper do seem to be the sort that the ADA is meant to address.
Which brings us to the sidebar discussion about the role of courts in the makeup of the “law”. The assertion that courts should have no significant role in establishing the parameters of the law is without any foundation in either the history of our governmental development or common sense. English jurisprudence has at its roots the notion that much of the law that governs us is developed by the courts; we call this “common law.” To the extent that we have legislative bodies which attempt proactive remedies for problems, we established early on in the history of this country that such efforts were naturally subject to judicial interpretation of the meaning of the words used. We do this on purpose, so that legislation doesn’t have to be overly detailed and inflexible in addressing specific needs over time. Indeed, if there is one valid complaint about modern legislative acts, it is that they are much too detailed, much too specific. Anytime that a court gets too proactive, the legislature can always remedy the “problem” by passing additional legislation.
As to the ADA specifically, what most people don’t know is that the ADA is hardly new law. Most of the provisions of the ADA had already existed in acts with much less scope, such as the Rehabilitation Act of 1970, or the California Fair Employment and Housing Act. Congress was quite aware that a large body of law existed interpreting most of the terms being utilized in the ADA; there are very few areas of that law for which there are no prior guidelines. Further, Congress specifically directed that regulations fleshing out the meaning of the terms were to be administratively promulgated. In this, Congress understood that interpretation of such a broad act needed to be flexible, more flexible than Congress itself often can be. This can hardly be considered an erosion of legislative power.
I’m not 100% sure that I’ve said “that courts should have no significant role in establishing the parameters of the law”, as you use the term. But I do maintain that a law which leaves too much for the courts is contrary to democratic principles.
I don’t see what the roots of English jurisprudence have to do with democracy. But beyond this, I don’t think “common law” is as you’ve described it. As I understand it, “common law” is a recognition that the longstanding customs (of the people) and commonly accepted (by the people) legal rights have legal standing, even if not actually passed by a legislative body. It is not developed by the courts any more then any other law.
Sometimes. Sometimes because Congress would rather not have to deal with it, or can’t come to a compromise on exact language. Or sometimes Congress does not anticipate the amount of wiggle room that they are leaving. But whatever the reason, the effect is to make the law subject to the preferences of judges rather then elected officials.
“As to the ADA specifically” (note also epeepunk) I can’t go to the mat for it. My impression that it is vague is based on the fact that there is constantly news being made about lawsuits that are based on ambiguity in the law. I could be wrong.
Can you articulate this a little bit more? My feeling is that the judiciary, at the levels that these decisions are made, is appointed by the elected representatives anyway. If we (supposedly) trust the elected officials to hash out and enact these laws, why should we not trust them to appoint to the judiciary people who will provide the real-world interpretations in a reasonable manner? I suppose you could argue that it creates an unnecessary level of ambiguity and room for error between the people and the law, but I can’t say as that bothers me too much.
Well, it’s one step further removed from the people. This may be what you are saying when you write “I suppose you could argue that it creates an unnecessary level of ambiguity and room for error between the people and the law”.
OK, there’s no requirement that you be a democratic absolutist. (Though I should note that sometimes people’s desire for judicial intervention is correlated to their belief that such intervention will tend to be on their side. See also this thread).
Just as an aside, the guy who filed the lawsuit was on the radio again (Peter Boyles Show, about 7:00 this morning) today and he said that
A) these homes should have been built with no front steps, a ramp was not acceptible
B) making him go in via a side door was akin to blacks in the back of a bus
C) all the homes should have handicapped bathrooms and doors wide enough to accomidate his special wheelchair (he repeated the 40-some inches figure)
D) he repeated the (actually somewhat legit) complaint about the gravel in the parking lots, but added that the grade of the parking lot was too steep
E) He complained about the fact that he couldn’t see the basements or upper levels, but wouldn’t agree to any remedy (like having someone carry him upstairs, etc) and played coy when someone tried to get him to suggest possible remedys.
As an aside, he’s apparently also connected with the Atlantis Foundation(or Organization) and I believe that they were the ones who tried to sue The Cave of the Winds (but I can’t find a cite, so take that with a grain of salt).
The more this guy talks, the more unreasonable he sounds.
Fenris