[conspire] Contact DOJ and tell them to blow it out their ass

[Paul Zander]

OK, I'm catching up on my email.

Regarding standing.  It was explained that a public official would not have standing to bring a case.
Could Gerardo Hernandez be challenged regarding his standing?  What brought him to the Dutch Goose?  Does he live in the neighborhood?  Does he pass through Menlo Park from time to time?  Is there some reason why he might be a repeat customer if it were not for the ADA "issues"?  Or was he deliberately looking for an opportunity to file a suit primarily because of the potential for the monetary benefit to himself?


      From: Rick Moen <rick at linuxmafia.com>
 To: conspire at linuxmafia.com 
 Sent: Tuesday, March 21, 2017 4:34 PM
 Subject: Re: [conspire] Contact DOJ and tell them to blow it out their ass
   
Quoting Ivan Sergio Borgonovo (mail at webthatworks.it):

> Would it have been different if it was a public officer to sue for
> non compliance?
> Would it have political consequences (someone not being re-elected)?
> Does suing expose the plaintif to any risk?

Questions of this nature ask me to put on my law-geek hat, which I'm
glad to do (albeit I'm not an attorney, let alone an ADA specialist).
When I do law-geekery, be advised, I tend to become even _more_
dispassionate than usual, more focussed on process rather than opinion.

I say this because often the answers I give aren't those the questioner
expects.  Many questioners expect a policy answer, I guess.  They are
often surprised when I don't give one, but if you ask me about the
nature and application of law, that's what I discuss, and policy is a
separate topic entirely.


A public officer suing runs into the obvious roadblock of the legal
concept of standing.  https://en.wikipedia.org/wiki/Standing_(law)
Plaintiff in civil litigation must be able to prove he/she is directly
and personally harmed by the claimed tort (non-criminal wrongful deed).

Public officers do not, in English-derived legal systems like the USA's,
have a magic card to deploy that says 'I'm an important representative
of the public, ergo I get standing automatically to represent the public
interest broadly.'  Doesn't work that way.

A public officer might affect the issue in other ways, such as
encouraging or sponsoring legislation, or altering government policies
that touch on the matter, but cannot just go around 'suing for
non-compilance'.  (Of course, a public officer who happens to be, say,
wheelchair-bound would have standing -- but then would have to bring a
tort action under ADA out of his/her pocket.)

Accordingly, your second question is moot, as the court case you have in
mind would not arise (except for a handicapped public officer deciding
to bring an individual lawsuit in his/her own name with his/her own
funds).

Suing (bringing a tort action under civil law) does not normally expose
a plaintiff to risk other than the risk of expending the cost of
supporting a lawsuit and getting nothing in return in a court judgement
or settlement.  In rare cases, courts will assess a plaintiff's action
over multiple cases and assign the category of 'vexatious litigant' 
(https://en.wikipedia.org/wiki/Vexatious_litigation), and order court
sanctions and restrictions limiting that person's further courtroom
rights in future cases.  If the vexatious litigant in question is also
an accredited lawyer, in extreme cases that lawyer could be disbarred.

As an aside, newcomers to discussion of civil law _often_ get surprised
by the standing issue.  It's common to assume that anyone may freely 
bring lawsuit over something that bothers the plaintiff.  Perhaps
mediaeval courts developed the 'standing' requirement in part to
disabuse people of that notion.  Certainly, it remains to this day one
of the big hammers the courts use to dispose of what they consider
nuisance lawsuits.  (More often than not, plaintiffs in nuisance
lawsuits have not bothered to make a coherent and plausible case for
themselves having standing in the matter at hand, and the courts tend to
leap onto that weakness to say 'You're not wasting my time today, Buddy.'


> I found these excerpt interesting:
> 
> «
> “They target small businesses that lack the financial resources to
> fight in court.”
> 
> Some advocates of the disabled say businesses have had 27 years of
> notice – since the ADA became law.
> 
> “Forty percent of the cases in 2015 were filed by just two firms
> who are exploiting ADA lawsuits for their own personal gain."
> »
> So is not a problem of some paedophile on food stamps.
> 
> 
> I wouldn't say it is a problem of the specific group of laws... it's
> an intrinsic problem of your legal system (I'm not saying we don't
> have our problems, they just come in different colours).

Yes, English-derived legal systems have some problematic known
characteristics.  Napoleonic-derived legal systems (Napoleon's updating
of Roman civil law), the other most common flavour in the Western world,
have their own quirks.

> And remedies seems worse than the cure:
> «His Assembly Bill 913 would clamp down on frequent filers»

How to assess the merits of that proposal that would depend on what
'clamp down' means.


> This seems a more interesting clue about how to fix the law:
> "California is a particular magnet for frivolous ADA litigation,
> thanks to state law which mandates a minimum $4,000 penalty for each
> violation — no matter how small — plus the plaintiff’s
> attorney fees."
> 
> I don't understand how giving more time to business is going to help.

Some background:  

Everyone (for nearly exhaustive values of 'everyone') in the USA knows
that the ADA exists and that its Title III requires (most) public
businesses ('places of public accomodation') to do certain steps to
'reasonably accomodate' enumerated classes of handicaps, most famously
being able to serve on a fair and reasonable basis.  But there are two
gotchas:

1.  Most people assume that once a business is ADA-compliant, it will
continue to be so.  That seems like a reasonable assumption, because
otherwise the country is putting a large and unexpected burden on
(mostly) small businesses to re-educate themselves continually and 
periodically do new work.  Well, surprise!  My understanding is that 
the regulations and standards (the Americans With Disabilities Act
Accessibility Guidelines) periodically change _and_ that new
requirements _do_ fall with full force onto ADA-non-exempt businesses
even if they have not had new construction, modifications, or
alterations.

Therefore, businesses that have historically been fully ADA-compliant 
can easily find themselves ADA-non-compliant without doing anything
different -- and the first indication they typically have of this new
problem is being on the pointy end of a civil lawsuit.

2.  The specific requirements of the Americans With Disabilities Act
Accessibility Guidelines, at any time, are extremely fiddly and
exacting, so it's relatively common for a business to have tried to 
be compliant but then one countertop was 2 mm too high or one bit of
required clearance was 10 mm too narrow.  The best way to _attempt_ to 
insure that your business is _currently_ compliant is to hire a
consulting firm every few years to study your business in-depth and
report any problems.  Vanishingly few public-accomodation businesses
have the funding to do this, and most small businesses aren't even aware
of the desirability of doing it.  

I suspect the above particulars will clarify why legislators sponsoring
reform legislation suspect that 'giving more time to businesses is going
to help'.  

Here's an illustrative example:  In the early 1990s, I moved with my
friend Richard Couture into a vacant two-story building in San Francisco
that formerly housed the San Francisco Fire Department Arson
Investigation Squad.  Richard and I lived in apartments upstairs in the
front.  The rest of the building Richard rebuilt (with some small help
from me and some of his friends) into his Linux-based Internet cafe, The
CoffeeNet.  Richard worked painstakingly to ensure that the business
would be ADA compliant, with particular attention to its one bathroom.
(As a business with a rated occupancy of fewer than 50 persons, The
CoffeeNet could get by with one bathroom under California law.)  There
were quite a few very exacting details to satisfy.  _However_, Richard
did not stop with merely studying the Americans With Disabilities Act
Accessibility Guidelines very carefully.  Before opening to the public,
he also invited key staff from the Center for Independent Living in
Berkeley, a noted and rather militant disabled advocacy organisation,
to inspect everything with a steely-eyed effort to find any possible
nitpick.  After a few hours, they pronounced themselves satisfied.

Richard considered that good enough assurance, and indeed he had no 
ADA lawsuits to fight off, over the lifetime of the business (that
closed in July 2000, continued in spirit as his new business LinuxCabal
in Guadalajara, Jalisco State, México).  _But_ that was not a guarantee
-- and please note that no business liability insurance covers ADA
violation problems.

If at any time after opening, some aspiring litigant had visited and
found one of The CoffeeNet's countertops to be 2 mm too high or one bit
of required clearance 10 mm too narrow, Richard's first indication of a
problem would be being served with a lawsuit summons, and having a
choice between signing an expensive imposed settlement or fighting and
probably losing an even more expensive lawsuit.

Permitting allegedly infringing businesses a 90- or 120-day grace period
to fix alleged violations before a plaintiff is permitted to file a
lawsuit would still leave businesses highly motivated to fix problems
but prevent people like Gerardo Hernandez from being able to coerce tens
of thousands of dollars in ADA damages from countless small businesses
(in addition to the cost of court action and renovations work) for
violations they didn't even know they were commiting.




> I'd ask in the first place why some courses are recorded and made
> available on the net.

Probably in a large number of ways, somewhat chaotically, and many quite
a few years ago.  I really wouldn't know for sure.

> I'm aware I'm judging by my limited experience but I didn't find
> them useful. I think I've insisted in following more than 80 hours
> of physics courses in the hope to learn something.
> I admit Susskind is fun but I'd consider all the video I saw
> promotional rather than educational. I wonder if ADA apply to
> advertising.

The part of ADA applicable to UC Berkeley is Title II (public entities
and public transportation -- as opposed to Title III (public
accommodations and commercial facilities) applicable to the Dutch Goose,
The Coffeenet, and countless other public businesses large and small.
Title II prohibits disability discrimination in all programs and
services offered by public entities.  The Federal legislative text
starts here, though you'll have to plow through quite a few pages to get
all of it:  https://www.law.cornell.edu/uscode/text/42/12131

The statute addresses 'receipt of services or the participation in
programs or activities provided by a public entity'.  I gather that the
core part of Title II (as to public entities other than transportation
ones) is here:  https://www.law.cornell.edu/uscode/text/42/12182

The courts' criteria for what Title II applies to would logically
involve deciding if something is among the 'goods, services, facilities,
privileges, advantages, and accommodations' of the public entity.

I rather suspect that your perception that a bit of courseware was more
promotional than educational would be of little interest to the court in
this legal matter.  It's not what would be adjudicated.

> Again if you're arguing about where it is better money go, if in
> digitalizing stuff or captioning stuff you'd better reconsider if it
> is better to put money in education or EPA or or healthcare or
> defense or Homeland Security...

I certainly think the former, but this has not been a policy discussion 
but rather one about the nature and application of existing law.  (As I
advised you, legal geekery tends to be, well, about law, not about what
law should be changed to be.)

We could have a separate discussion that could address public policy,
though I have my doubts about whether it would be interesting.  ;->


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