Monday, April 23, 2007

Regulations Give Neighbors Power Over Owner's Home

In the name preserving "open space" and the "historic fabric" of Old Town Alexandria, Virginia, a group of preservationist elitists stop a homeowner - for three years - from adding modest additions to her historic home to meet her family's needs.

Arbitrary Regulations Give Neighbors More Power than Homeowner Over Home

Amy Bayer adores her stately home in the Old Town Historic District of Alexandria, Virginia. Built around 1815, its red brick walls and historic architectural design compliment the neighborhood. The only drawback is that the house isn't big enough for her family's needs. Yet when Bayer sought to add onto her home, she discovered that her neighbors believed they should have the final word on her plans. Worse, they possessed the means to create a bureaucratic nightmare for Bayer if she didn't bow to their wishes.

Bayer purchased her home in 1994. In 2001, she decided to build a guest room and a family room to accommodate her children. After consulting the city's design guidelines on home additions, she submitted plans to Alexandria's Board of Architectural Review (BAR), which must grant approval to changes on historic properties. Bayer and her architect were careful to harmonize their plans with the historic fabric of Old Town Alexandria. They kept the plans within the architectural style of the rest of the home and met all regular zoning requirements. While most of her neighbors supported her plans, the neighbors on the side of the property where the addition would be built - Lawrence and Ashley O'Connor - believed the addition would hurt the historic district by "shrink[ing] the limited open space in the neighborhood." While this concern may be true for most Old Town properties, the Bayer property is uncommon because the house sits on a spacious, multi-lot parcel of land. Nonetheless, the BAR rejected Bayer's plans after the O'Connors and local preservationists voiced their opposition at hearings and public forums.

Bayer appealed the BAR decision to Alexandria's City Council, arguing that her home was no different from hundreds of others in Old Town approved for similar improvements in the past. The City Council agreed with Bayer and approved her plans. The O'Connors and the preservationists appealed the decision in state court, contending that the Alexandria City Council failed to use proper standards when it decided the case. In May of 2003, Alexandria Circuit Court Judge Donald Haddock ruled against Bayer and ordered the City Council to rehear the case. At that point, Bayer sought a compromise by seeking BAR permission to build a free-standing addition connected to the house by a covered walkway. This idea was based on the notion that the BAR justified its original denial not with concern for open space, but on the grounds that any "demolition or encapsulation" (the tearing down of walls or closing in of original architecture) of the house - no matter how minor - threatens the goals of the historic district. Bayer offered this compromise despite the fact that the BAR routinely approves "demolition and encapsulation" plans similar to her original plans.

The O'Connors and preservationists again threatened to block Bayer's plans. Not wanting to delay her addition any longer, Bayer capitulated. She submitted yet another new plan to the BAR in January of 2004 that proposed an addition on the opposite side of the house but with the same square footage as the plan submitted three years earlier. The BAR approved this new plan after her opponents dropped their legal challenge.

Three years and tens of thousands of dollars in architectural and legal fees later, Bayer was relieved that construction has finally started on the addition, but she was bitter about how cumbersome and costly Alexandria's arbitrary historic district regulations are for property owners. To help cover the cost of her fight - and highlight the inconsistency of Alexandria's laws - she is considering selling the lot on the northern side of the house (her first choice for the addition) where a brand new house could then be built by a new owner in accordance with historic district regulations. A new structure would completely obstruct the O'Connors' view and leave no remaining open space. The addition to the Bayer home that was denied by the BAR would have left 65 percent of the lot open and green.


Sources: Amy Bayer, The Washington Post (July 3, 2003; September 9, 2003)

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

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Reprinted with permission from The National Center for Public Policy Research.

Building Permits Mean Nothing in District of Columbia

The District of Columbia government halts the building of a new cellular phone tower seven months into its construction, despite having issued permits permitting construction, thereby costing its builder $250 million in various expenses and leaving area residents without adequate cellular service.

Government Approves Building Permit, Then Outlaws Construction

Residents of the Tenleytown neighborhood of northwest Washington, D.C. aren't happy with the quality of cellular phone service in their area. But when construction was started on a new tower that would improve both cellular service and television broadcasts, those same, politically-powerful residents complained to the District of Columbia City Council that the tower would be too tall. The council then halted the construction, at an estimated cost of $250 million to the tower's owner, American Towers Corporation (AT).

In March 2000, 13 city agencies approved a permit for AT to build a 756-foot tower in Tenleytown to improve cellular phone service and serve as a new broadcast tower for several local television stations. The new tower was to be constructed in an area that already contained several broadcast towers.

Seven months after issuing the permits and after the building of the tower was well underway, then-Mayor Anthony Williams ordered a halt to construction. In conjunction with that order, the City Council invalidated AT's permits by passing the "Moratorium on the Construction of Certain Telecommunications Towers Emergency Act of 2001."

The D.C. government did not condemn the AT property or offer to buy the land from AT - officials merely outlawed the completion of the tower. It remains unfinished; standing at nearly 300 feet.

AT sued the District of Columbia and Mayor Williams in the Superior Court of the District of Columbia. AT argued that it was victimized by the Tenleytown residents who had the ear of local politicians and who wanted to stop the tower for aesthetic reasons. Although city officials had approved the permit to build the tower, lawyers for the city argued that AT's tower would have been too tall. AT asked for $250 million in damages to permit it to recover money the company had already invested, delayed construction costs, the cost of litigation and projected profits the company would lose by not finishing the tower.

AT did not win its case in Superior Court, and the lawsuit was subsequently rejected by the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit. Seeing dim prospects and mounting legal bills in their federal case, AT decided not to appeal the case to the U.S. Supreme Court. The company's appeals to the D.C. Office of Zoning have been equally unsuccessful.

The District of Columbia then ordered AT to remove the unfinished tower. However, the D.C. Superior Court stayed enforcement of the District's order, while a separate lawsuit brought by AT seeking damages for the unfinished tower is before the court.

Bob Morgan, vice president and general manager of AT, expressed the company's dismay in an op-ed published in the Washington Times. "What seems clear to anyone who gives some serious thought to the situation is that the administration's decision is plainly a matter of favoritism. A few members of a small, politically-important neighborhood start pumping their fists in the air and the administration springs into action."

Not only is AT out millions of dollars, but many Tenleytown residents' cellular phones still don't work well.


Sources: Washington Post (November 1, 2002), Northwest Current (March 19, 2003), Washington Times (October 23, 2000; November 30, 2003)

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

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Reprinted with permission from The National Center for Public Policy Research.

Friday, April 20, 2007

Is the ADA About Money or Accessibility?

A quadriplegic man sues a Florida strip club for failing to provide a handicapped-accessible "lap dance" area.

Lap Dancing Location Leads to Lawsuit

Edward Law, who has been a quadriplegic since a diving accident in 1987, visited the Wildside Adult Sports Cabaret, a strip club in West Palm Beach, Florida, in May and June of 2002. A month later, he sued the club in U.S. District Court. He claimed it had violated the Americans with Disabilities Act because the room reserved for "lap dances" was inaccessible to the disabled. Law claims that the stage where dancers perform is too high and blocks the view from his wheelchair.

In order to get a lap dance, Law did not have to sue the club. Bret Rudowsky, Wildside's general manager, said that because of Law's disability, he would have allowed Law to receive erotic private time with a dancer in other areas of the bar. Before the lawsuit was filed, Rudowsky had never received a complaint from a disabled customer.

Steve Howells of the Advocacy Center for Persons with Disabilities believes that lawsuits should be one of the last resorts used to resolve ADA-related complaints. If a disabled person is unsatisfied with a business' accommodations, Howells says, individuals should complain to the management. Had Law done this, the club would have complied with his request. Instead, Law hired Anthony Brady, Jr., a lawyer who has sued more than 100 companies for ADA violations, to represent him in court. They filed a lawsuit requesting compliance with the law as well as an unspecified amount of money in attorney's fees. Since the only difference between what could be done in and out of court is money, suspicion was raised that the lawsuit was more about personal gain than protecting the rights of the disabled. Law also filed a lawsuit against another West Palm Beach strip club, the Landing Strip. Both of Law's suits were voluntarily dismissed in 2002.

In response to these and other ADA-related lawsuits, including a high-profile suit filed against a hotel owned by actor/director Clint Eastwood, the ADA Notification Act was introduced in February 2003 and reintroduced in June 2005. The bill would require a person to contact a business and explain how it violated the ADA's accessibility provisions before filing a lawsuit. The business would then have 90 days to correct the violation before a lawsuit can be filed.

Sources: Adult Industry News (July 15, 2002), Ragged Edge Online (July 22, 2002), Thethoughtpolice.com, The Washington Times (February 13, 2002)

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

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Reprinted with permission from The National Center for Public Policy Research.

Candy Store Owner Takes a Licking

To comply with the Americans with Disabilities Act (ADA), the owner of a historic California candy store is forced to build a $14,000 handicapped-accessible entrance ramp.

Candy Store Owner Takes a Licking

Lanny Rose has owned the Cottage of Sweets, a candy store in Carmel, California, for more than 24 years. He says he values every customer who visits his store, noting, "My specialty store is small enough that I make it a point to take care of each of my customers."

Constructed in 1922, the building measures just 325 square feet and is designated as historic. Due to its historical classification, Rose has always been extremely careful not to remodel or alter any structural aspect of the building without the appropriate approvals.

In March of 2003, Rose received a demand that physical changes to his building were necessary. He was being sued over his business' failure to comply with Title III provisions of the Americans with Disabilities Act. Enacted by the federal government in 1990, the ADA - and specifically Title III - prohibits discrimination against the disabled, and requires public places and commercial facilities to meet various "accessibility standards." For Rose, the step leading into his store was the cause of the complaint.

To Rose's surprise, he and several other local business owners were being sued by Joseph Tacl, a 52-year-old handicapped man who had visited Carmel in 2002. Along with the Cottage of Sweets, Tacl - who became disabled in a car accident in 1993 - sued seven other downtown Carmel shops, claiming "numerous architectural barriers" prevented him from "fully and safely" visiting them. Gene Zweben, Tacl's attorney, called Carmel one of California's "least accessible towns." Zweben said the defendants in the cases were "businesses that my client had attempted to go to but was discriminated against because he wasn't able to go inside the way everybody else can."

Rose does not recall Tacl's visit, but says he and his employees have always tried to cater to the needs of handicapped customers seeking to patronize the store. He said, "We have our own store policy where we will go outside to assist our handicapped patrons into the store. We try to be helpful and give all the assistance that we can."

Those efforts apparently were unknown or not enough for Tacl. In his complaint to the U.S. District Court for Northern California in San Jose, Tacl claimed he received "unlawful discrimination and unfair treatment." As part of the settlement eventually reached by the parties, Rose was forced to undertake a $14,000 construction project to transform the store's circular step into a slightly ramped walkway that complies with ADA's Title III provisions. Rose's insurance company, The Hartford, also paid Tacl monetary damages. Neither side will disclose the exact amount paid in damages.

It turns out Tacl is no novice when it comes to filing ADA complaints. As of April of 2003, Tacl had filed nearly 100 lawsuits against businesses in Northern California. This identifies the potential for abuse of the law. "The ADA is supposed to provide protection for the disabled, not provide an incentive or an excuse for people to sue a small business owner," says Representative Sam Graves (R-MO). "Every time this law is abused and a frivolous lawsuit is filed, small businesses and their employees are left to pay the bill." Representative Graves' office says that during the ADA's first eight years, businesses prevailed in 92 percent of ADA cases, for a total cost to them of $309.1 million, or approximately $25,000 per lawsuit.

Sources: Statement of Representative Sam Graves (R-MO) (April 28, 2003), Carmel Pine Cone (April 4-10, 2003; July 23, 2004), The Cottage of Sweets, Gene Zweben, Lanny Rose, MonterreyHerald.com (April 4, 2003), U.S. Department of Justice

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

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Reprinted with permission from The National Center for Public Policy Research.

Wednesday, April 18, 2007

Will Congress Impose Taxes on Goods Sold on the Internet?

This is bad enough from a tax-raising perspective, but even worse is the effect it would have on small businesses.

The bookkeeping involved in collecting, reporting and paying sales taxes to 50+ jurisdictions will deter many Mom and Pop Internet sales operations from operating.

Coffee Company Fined for Roasting Coffee

Coffee company spends over $30,000 fighting New York City's air pollution citation for smell of roasted coffee.

In New York City, Smelling Delicious Can Get You Fined

New York City's Gillies Coffee Co., founded in 1840 and one of the oldest coffee merchants in the United States, has built its reputation on its own delicious, fragrant brand of coffee. But not everyone likes the aroma of freshly-brewed coffee: New York City's Department of Environmental Protection (DEP) has cited Gillies for "polluting" the air - in an industrial area - with the smell of roasting coffee.

Incredibly, the DEP ruled that the "fugitive odors" coming from the Brooklyn business - namely, the smell of roasting coffee - is an illegal air pollutant that violates the New York City Air Pollution Control Code. Hy Chabbott, the co-owner of Gillies, has agreed to pay the $400 fine but says it will be impossible for the company to meet the DEP's demand that they completely eliminate the coffee smell in the future.

"Research has shown that coffee smells like coffee. There is nothing that can reasonably be done to separate the natural smell of already roasted coffee from a coffee business," explained Donald Schoenholt, president of Gillies. "Under the current interpretation [of the NYC Air Pollution Control Code]," Schoenholt asserted, "shoe stores, barber shops, doctor's offices and flower shops are all in violation of the law."

Gillies was convicted of the violation on April 2, 2003 by the city's Environmental Control Board, the municipal administrative court run by the DEP. The matter cost the company over $30,000 on legal bills. Schoenholt is constantly aware that his company could be fined again, because the law has not been taken off the books.

"Once it has been established that you are a polluter either through conviction or because you admit guilt by paying a fine," Schoenholt told the Tea & Coffee Trade Journal, "you are on the slippery slope. It's only a matter of time before you're forced to move your business from New York City."

According to the Philadelphia Inquirer, New York City's DEP has also fined pickle companies, bagel bakeries, and doughnut shops for aroma violations.

Schoenholt says: "It's really hard to live like this as a business owner. I don't know if I'm going to be in business in one year, in five years. I can't really put a dollar amount on the harm that's been done."

Sources: Reuters (April 22, 2003), Donald Schoenholt, Tea & Coffee Trade Journal, Philadelphia Inquirer (April 26, 2003)

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

Download your free PDF copy today here or purchase a print copy online here.**

Reprinted with permission from The National Center for Public Policy Research.

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Monday, April 16, 2007

Smoking Bans Hurt Small Neighborhood Restaurants and Bars Most

New York's smoking ban closes popular Buffalo bar and restaurant, leaving nearly 20 employees without work.

Small Neighborhood Restaurants and Bars Hurt Most by Smoking Bans

The Royal Pheasant, a popular bar and restaurant in Buffalo, New York since 1944, has permanently closed its doors.

Owner Jacqueline O'Brien says her establishment was forced out of business by a drastic decline in customers attributed to a statewide smoking ban. Like many other New York restaurant and bar owners, O'Brien contends that such establishments have the right to decide its own smoking policies.

The closing of the Royal Pheasant forced nearly 20 people out of work. While the smoking ban contains a provision allowing businesses to apply for a waiver, very few establishments have actually been able to acquire one.

Besides the Royal Pheasant, nine other Erie County bars and restaurants closed soon after the ban went into place. Small neighborhood restaurants have been the most adversely affected by the ban. Patrick H. Hoak of the Innkeepers Association of Western New York has reported that some of the smaller bars and restaurants that have not closed have experienced drops in sales of 50 percent.

Sources: The Buffalo News (December 9, 2003; January 25, 2004; October 2, 2004), Innkeepers Association of Western New York, New York State Department of Health

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

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Reprinted with permission from The National Center for Public Policy Research.

Smoking Bans Hurt Small Business

Delaware's indoor public smoking ban cost one establishment 70 percent of its business and a $350 fine from the state's health department.

Small Business in Financial Trouble After Delaware Smoking Law Forces Patrons Across State Lines

The Delaware legislature has outlawed smoking in all public enclosed indoor areas. This ban extends to bars, restaurants, nursing homes, prisons and all other publicly owned buildings.

The ban economically endangers many local establishments, such as Desiree Mulford's Breakers Bar and Billiards in Newark. Many of Mulford's customers have taken their business to neighboring states, where they can still enjoy smoking indoors. "I'm ten minutes from the Maryland line," said Mulford. "Not only do smokers go, but the nonsmokers go, too. They want to go where the crowds are."

While 25 percent of Delaware's population smokes, Delaware bar owners estimate that about 80 percent of their patrons do.

After a 70 percent decrease in business, Mulford decided to allow smoking at Breakers despite the new law. "For every one person I lost because there was smoking here, I gained ten," she said. But things changed after these practices were published in a newspaper article, and Breakers received a $350 fine from the Delaware Division of Public Health. Mulford began to receive registered letters from the state that described complaints it had received and unannounced visits state officials had made. The bar's previously-approved permits to construct a kitchen were revoked as a result of the decision not to enforce the ban. This compelled Mulford and her business partner to enforce it once more. After reinstating the ban, they lost more than 50 percent of their business and had to stop paying themselves just to keep the bar open.

The Delaware House of Representatives passed an amendment to their Clean Indoor Air Act in March of 2003. In an effort to help small businesses, this legislation would have allowed smoking in some bars. But strong campaigning by anti-smoking activists led to the bill's defeat in the state senate by a two-to-one margin. Delaware's Governor Ruth Ann Minner was also strongly opposed to the amendment despite the crippling effect the bill has had on some local businesses.

Dwindling crowds are making it difficult for Desiree Mulford's business to survive. She considered closing Breakers and opening a restaurant and nightclub in New Jersey, but New Jersey adopted a ban on smoking in public buildings, except gambling areas in casinos, in January 2006.

Sources: Desiree Mulford, Washington Post (July 7, 2003), Baltimore Sun (June 22, 2003), Associated Press (January 27, 2003), News Journal (April 9, 2003; June 1, 2003), The Record, Smokefreeworld.com

**Read this story and 99 other all-new outrageous stories of government regulatory abuse in the new fifth edition of the National Center for Public Policy Research's book, Shattered Dreams: One Hundred Stories of Government Abuse.

Download your free PDF copy today here or purchase a print copy online here.**

Reprinted with permission from The National Center for Public Policy Research.