The musings of one Andrew Langer - defender of liberty, passionate protector of individual rights, foodie. (Note: Said Musings of Andrew Langer are his own, and the views represented herein are likewise his views, and not the views of any other people, entities, foodstuffs, etc [unless otherwise specifically and explicitly noted].)

Tuesday, July 26, 2005

Hotels and Mandatory Restrooms: The Modern Statist Legacy

I like tying things together, and it seems that there are some common themes from the last few days, as we discuss Comrade Che, the Kelo Decision, and the subject we'll touch upon as well today, mandatory bathrooms.

One of the greatest problems with a burgeoning nanny state is the state's tendency to proscribe behaviors - to make choices for the citizens that the citizens themselves would otherwise want to make (I guess that's pretty much the definition _of_ the nanny state). The outcome, of course, is a state that makes everyone a criminal, as the laws are so vast and proscriptive that nobody can possibly be in compliance with the law at all times (largely because they don't know that they are breaking the law).

The state making these decisions for the people smacks of elitism - and besides the implication these policy courses invariably have on individual rights themselves, I find it particularly galling that someone else feels that they have the power to make a choice for me.

Such, of course, is one of the fundamental problems with private-to-private eminent domain. Why the mayor of Lockwood, Ohio can decide what houses should be torn down (applying standards that would have made her own house suspect, but, of course, she would have gotten to keep her house), simply because she's mayor, is beyond me. Just because someone was elected (or, God forbid, appointed) to a government post doesn't give them wisdom to substitue their judgement for my own.

That's one of the reasons Kelo was so disappointing, and why the efforts to condemn Justice Souter's home were so promising. Object lessons are always the most educating, no matter where you are in the course of life. And as powerful as a sitting Supreme Court Justice is, the ability to teach that person an object lesson when he does something so patently stupid as to allow statist nonsense to be perpetuated is a truly great thing indeed.

So it's with a heavy heart that I have to report that the Lost Liberty project is, at the moment, dead in the water. As alluded by Liberty Blog reader Kira Zalan in her comments, and reported on her own blog (, the town of Weare, NH, where Justice Souter's lifetime home is, has turned down Freestar Media's request to condemn Souter's land.It's too bad, really. An object lesson like that would have been simply marvelous - especially as it can be applied across a whole host of state powers.

Like the requirement in many states that businesses open their restrooms to the public, regardless of their own desires to keep their restrooms to themselves and their employees, reported in the Wall Street Journal today:

Small Merchants May Run Afoul Of Rules on Restroom Access
Many Shops Are Unaware Of State Codes Requiring Public Access to Facilities
Wall Street Journal
July 26, 2005; Page A22
By Gwendolyn Bounds

While shopping last month at a Rochester, N.H., Salvation Army thrift store, a local woman found herself unexpectedly in need of a restroom but was denied access to one because of the store's "employee only" toilet policy. Unable to make it elsewhere in time, the shopper had an accident in the store.

It might have ended as just an unfortunate incident; after all, scores of stores around the country decline to let the public use their toilets because of the costs of cleaning and monitoring such facilities. But what happened next highlights a quiet shift in public policy that affects small businesses nationwide when it comes to restroom facilities.

Police were called to the scene and the state's building inspector eventually was consulted about New Hampshire's plumbing code, which sets out requirements for buildings' toilet facilities, among other things. That brought some surprising news: According to state code, merchants of all sizes and types located in spaces constructed since the early 1980s, or brought up to code since then, are indeed supposed to provide customers and visitors with restroom access. Violations are considered a misdemeanor punishable by a maximum $1,200 fine.

"We were not aware of the law in New Hampshire," says Trish Raines, community-relations manager for the Salvation Army's Eastern territory. She says the Rochester store is now allowing the public access to its restrooms and says all new or updated thrift facilities will do the same.

As it turns out, many U.S. merchants may be unwittingly in violation of plumbing codes when it comes to letting the public use their bathrooms. A growing number of states now include language in their codes spelling out requirements for customer restroom facilities in mercantile and other business spaces. New Jersey's code has done so since 1983; California's does also, as well as Virginia's and Florida's. Indeed, a majority of state legislatures, including New York's, have adopted codes with similar requirements.

---end quoted material---

Nanny-statism at its best. The article went on to say:

"I don't think our legislatures should be worried about people being able to go to the bathroom in any location in the nation," says Matt Webb, owner of 1-800-Flowers, a retail florist shop in Tampa, Fla. With only one or two employees in his store at any given time, he says, it would be a strain to have them regularly cleaning toilets.

Plus, there are liability issues for business owners, says Andrew Langer, manager of regulatory policy for the National Federation of Independent Business, a small-business advocacy group. "If someone starts shooting up heroin and the cops bust in, theoretically, you could be liable," he says. "In the end, it should not be left to the states to decide what is best for the small-business owner. It should be up to the small-business owner."

---end quoted material---

Wendy Bounds unfortunately didn't quite get what I was saying right. The problem is compounded by state and local civil asset forfeiture laws (laws right out of Che Guevara's vision for socialist utopia), in which the state can take private property if it was used in the commission of a crime, and build revenue (which creates a perverse incentive to find private property used in the commission of a crime). There are real-world examples, like the woman whose car was taken by the state because her husband had used it to seek the services of a prostitute, or the elderly couple who had their home taken because their grandson had been growing marijuana in their backyard, unbeknownst to them.

In this case, someone shoots smack in the bathroom of a small business, a small business that otherwise would have liked to keep the dope addict out of their facilities. The cops storm in, bust the heroin user, and in the process take the small business property as having been used for the commission of a crime.You'd think that it couldn't happen, but the real world examples are just too scary to dismiss.

And so the problem is, whether it be the desire of a select few to reinvigorate a community with businesses of the size, scope, and style they prefer; or the desire of another select few to ensure that the public has restroom access whereever or whenever they choose, the point is, it is the people on one side of a line making decisions for people on the other side of that line - substituting their judgement for that of the individual whose life is being impacted.

Moreover, as more laws get passed and are turned into regulations, the problem only gets worse. More and more behavior becomes proscribed, and individual choice gets thrown out the window. And it's a patently unfair system to turn everyone into unwitting criminals - especially if all they want to do is keep their own bathrooms private.

These are not the principles upon which this nation was founded. In fact, it's precisely the opposite.


Blogger T.H.E.Probe said...

On a slightly different family recently went to a Barnes & Noble in mid-town Manhattan and found that they do not have a wheelchair accessible bathroom. What was annoying was that the management thought they did and we had to trek through the entire store before we found out that tese folks could not understand that going up three stairs with a wheelchair is impossible.

We returned to the store a few weeks later and I offered to place a sign in their window...

"No Accessible Bathroom"

They refused.

What is wrong with truth?

July 29, 2005 9:42 AM

Blogger Andrew Langer said...

That's an interesting story - and I'm surprised, honestly, that Barne & Noble hasn't been sued over this, considering that there's a veritable industry out there dedicated to suing small businesses over handicapped access to public restrooms.

While I don't advocate suing over this, I would consider either writing a letter or getting a lawyer to write a letter to Barnes & Noble's corporate offices, letting them know that this is possibly a violation of the ADA.

If small businesses are getting sued over this and are responsible for making sure that their public restrooms (if they provide them) are handicapped accessible, then there's no reason why I big business shouldn't be held to the same standard...

July 29, 2005 9:52 AM

Blogger T.H.E.Probe said...

We did write a letter and follow-up with email, and another letter. We did not get a response.

NOT ANSWERING is the biggest cause of lawsuits. Several years ago we had a similar problem at a Broadway theatre where they had provided inaccurate information that the theatre was fully accessible. The bathrooms were down the block and up the elevator. They fixed that by providing accurate information after we wrote a nice letter, and were asnwered in a few days.

Six months later they re-contacted us to help them innaugurate their newly accessible bathroom. They explained that our letter caused them to THINK and they found a solution. We were the guests of management and everyone, including others who cannot climb stairs, were content.

Handicapped people can often be satisfied with courtesy and accurate information.

July 29, 2005 10:36 AM

Blogger T.H.E.Probe said...

P. S. With the ADA being well over a decade old, the cry that businesses need 90 days notice before a law suit is utterly specious. After over 3650 days, 90 will not make a difference.

July 29, 2005 10:38 AM

Blogger Andrew Langer said...

Well, here's the thing about that last point, though. Even after a decade, a lot of businesses are unsure as to what their requirements for compliance are - a lot of small businesses are exempt for a lot of what the ADA requires (it depends on size, type of business, number of employees, etc) - if they even know about the ADA at all. In fact, in recent informal surveying, NFIB's research foundation found that more people thought they were in compliance with the ADA than actually knew what the ADA was.

Keep this in mind: for businesses with less than about 35 full-time employees, by and large it's the owner and the owner's spouse who are keeping tabs as to what the various federal, state and local laws require of them (I deal almost exclusively with the federal portion of that).

When I give speeches, especially in small settings with groups of high school or college kids, I make it a point to talk about the Code of Federal Regulations (CFR), the body of books that actually gives us the agency interpretation of the laws that are passed by Congress. And one of those points is to talk about the tens of thousands of pages in the CFR, and the literal more-than-a-dozen feet of shelf space required for housing _ALL_ of the regulations that could possibly apply.

And again, that's just the federal burden. We're not talking about state, county, or local codes, either.

There is no possible way for a business to know if they are in compliance with _EVERY_ law that applies to them 100% of the time (which is one of the problems with ratcheting up penalties or increasing the size of the regulatory state needlessly, but that's another topic of discussion).

So while you might think that because the ADA is now 10 years old that there's plenty of fore-warning for each business, it really is a question of fairness to give small businesses 90 days when they are made aware of a violation to have it corrected.

For the most part, small business owners really might not know what their responsibilities are.

I have no similar compassion for large businesses. Once a business hits about 35 employees, research shows that they start hiring their first regulatory compliance professionals (usually for things like HR, which would include ADA compliance). A big company like Barnes & Noble should know better.

July 29, 2005 2:30 PM

Blogger Andrew Langer said...

I'd be interested in following-up with Barnes & Noble, too.

Can you let me know the store without the bathroom (address), who you contacted at B&N, and what dates you contacted them?

I'd like to call the store and hear for myself their explanation as to why they're not providing handicapped accessible bathrooms - and write about it here on the blog.

July 29, 2005 2:57 PM

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