The Department of Justice (DOJ) recently revised its regulations implementing the Americans with Disabilities Act (ADA). This revision clarifies some issues that have arisen over the past 20 years and contains some new requirements, including the 2010 Standards for Accessible Design. DOJ has published a document, ADA Update: A Primer for Small Business, which provides guidance to assist small business owners in understanding how the new regulations apply and how to comply with them. The Primer can be viewed by going to www.ada.gov.
Title III of the ADA, on “public accommodations,” applies to both the built environment and to policies and procedures that affect how a business provides goods and services to its customers. The Primer can help small businesses avoid the unintentional exclusion of people with disabilities, and it will also help them know when they need to remove barriers in their existing facilities.
Practically all types of businesses that serve the public are covered by the ADA, regardless of the size of the business or the age of its buildings. Covered businesses must make “reasonable modifications” to their business policies and procedures when necessary to serve customers with disabilities. They must also take steps to communicate effectively with customers with disabilities. It is a business’s responsibility to provide a sign language, oral interpreter, or video remote interpreting (VRI) service, unless doing so in a particular situation would result in significant difficulty or expense in light of the business’s overall resources. If a specific communication method would be an undue burden, a business must provide an effective alternative if there is one.
Businesses must allow people with disabilities to use mobility devices in all areas in which customers are allowed. Public accommodations must permit individuals who use these devices to enter their premises, unless the business can demonstrate that the particular type of device cannot be accommodated because of legitimate safety requirements that are based on actual risks, not stereotypes.
The ADA mandates that businesses remove architectural barriers in existing buildings and make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. Commercial facilities such as office buildings, factories, warehouses, or other facilities that do not provide goods or services directly to the public are subject to the ADA’s requirements only for new construction and alterations.
Regarding the built environment, the ADA strikes a careful balance between increasing access for people with disabilities and recognizing the financial constraints many small businesses face. Flexible requirements allow businesses with limited financial resources to improve accessibility without excessive costs.
The ADA’s regulations and the ADA Standards for Accessible Design, originally published in 1991, set the standard for what makes a facility accessible. While the updated 2010 Standards keep many of the original provisions in the 1991 Standards, they do contain some significant differences. The 2010 Standards are the key for determining whether a small business’s facilities are accessible under the ADA, but they are used differently depending on whether the small business is altering an existing building, building a brand‑new facility, or removing architectural barriers that have existed for years.
Since March 15, 2011, businesses have had to comply with the ADA’s general nondiscrimination requirements, including the provisions related to policies and procedures and effective communication. The deadline for complying with the 2010 Standards, which detail the technical rules for building accessibility, is March 15, 2012. The delay was meant to give businesses enough time to plan for implementing the new requirements for facilities.
Some say the world is divided between dog lovers and cat lovers. Jan is the latter.
She has seven cats of her own that live with her in her modest California home. But Jan also puts her modest financial means where her mouth is. As a volunteer for a local IRS‑approved charity, she has taken care of some 70 stray cats at her home while adoptive homes were being found for them. The charity’s mission is to trap stray cats, neuter them, and then place them in homes temporarily until they can be adopted or released.
Jan’s unreimbursed expenses for so many cats had a way of adding up fast. In a recent tax year, she claimed a deduction on her income tax return for that year’s expenses of more than $12,000, for everything from food and vet bills to kitty litter. The IRS took a dim view of the deduction, contending that the expenses were all personal nondeductible expenses and disallowing the deduction.
Representing herself because she could not afford to hire a lawyer, Jan handled her case all the way to the U.S. Tax Court, which sets precedents sometimes having broad application nationally. In that venue, she won on the most important issues, thereby improving the financial prospects for volunteers nationwide, especially those who incur unreimbursed expenses that can be shown to further the missions of groups like Jan’s. There are more than 1.5 million IRS‑recognized charities in the United States.
The Tax Court judge agreed with most of Jan’s contentions. He permitted her to deduct most of her bills for feral cats, since such bills had been incurred to help a charitable group fulfill its mission. A couple of items were disallowed, such as the cost of cremating a cat and of repairing Jan’s wet/dry vacuum. The deductible expenses included 90% of Jan’s vet bills and 50% of her cleaning supplies and utility bills.
The total deduction was reduced somewhat for a reason that should be noted by others who might follow Jan’s example—she didn’t have a valid letter from the charity acknowledging her volunteer work for expenses of $250 or more. In addition to getting such a letter, the taxpayer needs to keep good records of the pertinent expenses.
In Jan’s case, the court ruled that the regulatory requirements for money contributions governed her expenses of less than $250. Her records for such expenses were acceptable substitutes for canceled checks, under the “substantial compliance” doctrine.
With a view toward getting a full measure of justice for debtors who may have been wronged by a violation of the federal Fair Credit Reporting Act (FCRA), attorneys often will add to their pleadings claims under state law arising under the common law (court‑made law) or state statutes.
Any time there is such a combination of federal and state causes of action, there is the potential for a defense based on federal preemption—the principle that when Congress passed federal legislation, it meant for such a remedy to take the place of and preclude any state law claims. In two recent cases, courts reached opposite results when this issue arose in lawsuits brought by debtors.
In the first case, the plaintiff’s hospitality was punished when his houseguest took his credit card and racked up over $7,000 in unauthorized charges. Upon discovering this, the plaintiff contacted the bank that had issued the card. The bank acknowledged that the charges had not been authorized and that the plaintiff was not personally liable for them. However, it then proceeded to refer the account to a collection agency.
Among the claims asserted by the plaintiff in the litigation that ensued were claims for libel, credit libel, and violation of a state consumer protection law. The bank’s argument that the FCRA prevented these state law claims was rejected by a state supreme court. There are some specific preemption provisions in the FCRA, and one of them applies to the responsibilities of persons who furnish information to consumer reporting agencies. The bank’s reliance on this provision for its preemption defense was misplaced.
The bank had been a furnisher of information, but the party to whom it had given that information was not a “consumer reporting agency”; it was instead just a debt collection agency. The agency collected the information on the plaintiff simply for the purpose of collecting an alleged debt, not to enable it to furnish a consumer report to another end user of that information.
In the second case, a major bank allegedly told credit agencies that the plaintiff was behind on payments on a loan, even though the bank knew that she was not. When the plaintiff brought suit in federal court under the FCRA, she added state law causes of action for defamation, invasion of privacy, and negligence. After the FCRA claim had been dismissed for an unrelated reason, a federal appeals court ruled that the plaintiff was also precluded from going forward with her state law claims.
A pertinent provision in the FCRA states that no requirement or prohibition may be imposed under the “laws” of any state, but the lower court read this to refer only to state statutes, not to the common law of a state. The appeals court reversed the lower court. “Laws,” as used in the FCRA provision, must be read to embrace all sources of law, whether derived from the legislature or state court decisions. As the court put it, “what reason would the legislature have had for preempting state statutes regulating information to credit bureaus, while not preempting state common law regulating the same subject?”
When Helen was reported to her homeowners association by a neighbor for violating a restrictive covenant against keeping chickens, she picked a rather odd way of getting even with the neighbor. She had to borrow a friend’s car to do it, but she stopped the car in front of the neighbor’s house at 6 a.m. and laid on the horn for 10 minutes.
The neighbor called the police, who first spoke with Helen and then went to get the neighbor’s statement. Unable to leave well enough alone, Helen then drove past the neighbor’s house and let out three more loud horn blasts for good measure. This promptly led to her arrest by the police officer and her subsequent conviction for violating the local noise ordinance barring the sounding of a horn except for public safety purposes or at officially sanctioned parades or public events.
Helen’s conduct hardly summons up comparisons with grand orations on vital issues of the day, but her conviction was overturned by a state supreme court. More specifically, the county noise ordinance under which she had been arrested was struck down as being impermissibly overbroad, in violation of free speech protections of the federal and state constitutions, because horn honking could clearly be a form of expressive conduct in certain circumstances and the ordinance swept into its prohibition many such instances of “protected honking.”
The court stated that the facts of the case were not critical in an overbreadth challenge. The larger principle was that there was a realistic danger that the ordinance would significantly compromise recognized free speech rights of parties not even before the court. Horn honking as a way to vent anger about a rather petty dispute between neighbors may not ring true as speech worthy of protection, but the court advanced some other, more plausible scenarios of honking as protected speech: a driver for a carpool toots the horn to let another worker know it is time to go; a driver responds to a sign saying “honk if you support our troops”; wedding guests celebrate the newlyweds’ departure from the church with their car horns; or a driver honks in support of an individual picketing on a street corner.
Because these actions were swept within the ordinance’s prohibition, as well as any other forms of car horn honking that did not involve public safety or an officially sanctioned parade or public event, the ordinance and Helen’s conviction could not stand. The court suggested that a properly tailored ordinance, prohibiting, say, disturbing horn honking that is meant to annoy or harass, might have survived, but that was not the ordinance that led to Helen’s arrest. In short, you might say that Helen had the last “honk” after all.
Reverse mortgages, usually obtained from financial institutions, allow people who are at least 62 years of age to convert their home equity into cash, which is received by the homeowner either as a lump sum, a line of credit, or monthly payments. The loan becomes due, with interest, when the borrower dies, moves out of the home, sells it, or fails to pay property taxes or homeowners insurance. The end result is often that heirs of the owner sell the house, pay off the loan, and keep the difference.
Since an institution involved in a reverse mortgage is advancing money without knowing for sure when it will be repaid, there are high up‑front costs for commercial reverse mortgages. Fees can be as much as 5% of a home’s value, and required mortgage insurance premiums can range from 0.1% for loans with a low payout to 2% for those with a higher payout.
In large part because of these high fees and costs in the commercial sector, but also to reduce paperwork and to increase the amount of equity an owner can tap, some families set up private reverse mortgages. A private reverse mortgage is basically a private loan to the homeowner, usually from a family member, that is secured by a mortgage on the senior’s house.
For the senior homeowner, a private reverse mortgage can have these advantages:
For the lending family members, the arrangement can have these advantages over a reverse mortgage with a financial institution:
There are some cautionary aspects to private reverse mortgages. Lending family members need to anticipate that the money they advance may not come back to them for a long time. It is also prudent to consider that there is some risk that the entire loan may not be paid back, if the ultimate proceeds from the sale of the home are insufficient to pay off the loan, with interest. Of course, these and any other concerns should be fully aired and taken into account when the private reverse mortgage is being contemplated in the first place and when its terms are set.
Keeping track of personal finances can become like detective work when there is scant evidence of items such as an old bank account or a receipt for a safe‑deposit box. This situation arises most commonly for executors of estates or for someone who is taking care of financial matters for an ill or elderly friend or relative.
The first job is to determine whether the financial institution is still open, has closed, or has merged with another entity. The Federal Deposit Insurance Corporation (FDIC) maintains “Bank Find,” an online database that allows you to trace the history of any FDIC‑insured institution and to find contact information for open institutions.
Once the bank is located, you can ask whether the account is still there in your name or in that of a loved one. For inquiries about someone else’s account, expect to be asked to produce appropriate documents, such as a death certificate, a court appointment as an executor, or a power of attorney or similar directive from a living person.
If the account was classified as abandoned under state law, its contents would have been transferred to the unclaimed property office in the state of the owner’s last known address. You can check to see whether any property is being held by the state by using a website maintained by the National Association of Unclaimed Property Administrators (www.unclaimed.org).
When the account is tracked down, you can collect the assets by presenting satisfactory proof of ownership. If the assets wound up with the state, it is possible that the state will have sold off the assets because of lack of storage space. In that event, in most instances the original owner or heirs would still have the right to claim the proceeds from that sale.
"Jim was recommended by a business partner. Jim’s expertise and experience was quite obvious from a client perspective. However, what was most impressive was the distinct impression of personal and business integrity. Simply put: Top Shelf Experience."
"Jim is not only a most professional attorney both in the court but also in other legal matter representation. His warm personality helps in client communication. His demeanor is always reflecting a calm, kind manor. It is so reassuring to me knowing that I have Jim as my attorney."
"Jim Bacon is a 10 out of a 10 and that goes for everyone that works at the firm. I know they have my back and allow me to run my businesses. Personally, I have recommended Jim and the firm to many of my friends and they all thank me and feel the same. There is no one or no firm that comes close to providing legal services. I feel sorry for any other lawyer that has to go up against Jim!!"
"I am extremely pleased with this law office! I needed to do a will and Lucy Boerum was amazing. She was patient and kind, yet very knowledgeable. I had to make a lot of difficult decisions, but Lucy made it easy for me. She was always available to simplify a concept and explain a definition. It took me time to make my decisions, and this office never pressured me to hurry up. Life is busy and I had to delay several times, but Lucy’s attitude was always comforting and understanding. Thanks to her, I finally finished my will and can sleep better at night. This is a very efficient, low key, nice office to work with. I can’t say enough good things about them. They are all intelligent and kind."
"I can’t say enough good things about the services I received while working with this firm. They not only got me through the legal process but took a personal interest in making sure they did everything they could on my behalf. That is something you don’t find every day in working with a legal firm. I highly recommend their services. Helpful, knowledgeable, and top notch!"
"An extremely capable and professional firm. Truly exemplary. Mr. Warner Young is an excellent attorney and Ms. Lucy Boerum is very efficient and competently handled all the office affairs. Very approachable and gracious in their dealings too. I strongly recommend their services and wish them all the very best."
"I am extremely happy with services I received from this law firm. I have used several attorneys within this firm on various legal matters. They are always professional and more importantly they listen to your legal matter before offering an opinion. I have finally found a law firm where personal connections and legal services are equally important to the firm. Both are attributes that make this firm stand out from their peers. I would definitely refer this firm to my friends."
"Mr. Stephen Halfhill, Esquire and the other professionals at ABHY handled both my divorce case and my custody agreement. The divorce was very straight forward, but the custody case was very difficult for me and Mr. Halfhill and his associates were able to successfully get a fair custody agreement in place that was fair to everyone especially my son. The billing was fair and all of the attorney fees definitely paid off for me and my son. I highly recommend this firm for family law and the other law practices done in their office."
"I have had the pleasure of working with Allred, Bacon, Halfhill & Young for more than 7 years, mostly in the area of elder care. Attorney Warner Young and Paralegal Lucy Boerum have provided superb legal advice and outstanding client service. Their performance has exceeded my high expectations. They have been professional, responsive, communicative, thorough, patient, persistent, and pleasant in all of my dealings with them. I would highly recommend this firm."
"We are always treated respectfully, no matter the issue. Their advice is always “spot-on” and we have relied on their help and counsel many times."