Sneaking Suspicions
Archives-- November 9-15, 2003

This page includes posts from Nov. 9-15, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

November 14, 2003
Traffic cameras helping the war effort

My clients at DelDOT’s Traffic Management Center use several dozen cameras at critical intersections throughout the State. The live information is a critical part of the data used to adjust traffic signal phasing and otherwise help maintain a smooth traffic flow. 

In addition, the live shots are also available to the state’s travelers 24/7 on the Internet, so they can plan their trips accordingly. 

The cameras also provide some unintended but nonetheless welcome benefits for our servicemen and women overseas, as noted in two recent e-mails sent to the Department:

Saturday, October 25, 2003

"I want you to know that I am able to view intersection cameras near my house. I am presently deployed at a forward operating bomber base in support of Operation Enduring Freedom. One afternoon I actually saw my wife passing through on her way to pick up our son at school. It's hard to convey the feeling I got when I discovered this site. I bet you never knew this site would be used so far from home. THANKS so much for making it easy to see Delaware so far away!"

Randy Fisher TSgt. USAF
Camp Justice
Diego Garcia

Monday, November 3, 2003

"After having a very bad day I turned to the traffic camera in hopes of catching a glimpse of my very best friend... my wife. Well I didn't get to see my wife but I did get to see the beautiful fall colors. Something else, besides my family, that I miss very much."

Now, that’s cool.

I wonder how many other members of the military overseas are following Sgt. Fisher's example, with the thousands of Web-accessible intersection cameras operated by cities and states throughout the country.

November 13, 2003
Cheapskates at the toll gates

Some folks define the term “cheap,” and I don't mean that in a good way. 

The First Circuit dealt with some of these people in fairly summary fashion last week, in a decision about the electronic toll collection commuter discount program run by the Massachusetts Turnpike (MTA).

MTA is part of a group of mostly Northeastern and Mid-Atlantic toll authorities that use the E-ZPass system. 

Using a common technology allows people to use a single account with one of the entities to handle the payment of electronic tolls on any of the participating highways and bridges. The toll authorities use clearinghouses, much like the banking and credit card industries, to direct the toll revenues back to the appropriate entities. 

MTA and most of the other toll agencies also have their own discount plans tied to frequency of use, for the sake of their daily commuters. For the most part, however, these arrangements require the participants to sign up for transponders from the agency offering the commuter discount. In part that’s because the programming costs for implementing the various discount plans are not cheap, and in part it relates to how the entities decide to deal with the initial and replacement costs for the E-ZPass transponders. MTA, for example, charges its customers $27.50.

In 2002 MTA announced the adoption of its Fast Lane Discount Plan, and originally said it would be limited to Massachusetts residents. After a newspaper asked about whether this wouldn’t raise a constitutional problem, MTA quickly amended the plan to permit any commuter with an MTA transponder to qualify for the cut-rate tolls. Several thousand commuters from Connecticut and elsewhere signed up. 

The MTA’s switch from the legally indefensible resident-only plan was a smart move, but it still didn’t satisfy two MassPike users from Vermont and New York. They filed suit under the Commerce Clause after paying the full tolls, since they weren’t signed up for the FastLane Discount Plan.

I gather they wanted the benefits of the discount program without paying for its initial costs, and were just too cheap to plunk down the $27.50 for the transponder.

After losing in the District Court, the unhappy toll customers appealed to the First Circuit. 

The unanimous panel made short shrift of the cheapskates’ arguments. 

First, the MTA plan was open to anyone from any state, as long as they paid the $27.50. The more frequent users would gain the discounts, but frequency of use didn’t automatically create an illegal classification between residents and non-residents.

Second, the toll plan was neither discriminatory on its face nor in its practical effect. There’s nothing inherently wrong with granting regular commuters a discount, compared to the tolls paid by infrequent customers. In addition, nothing about the MTA system prohibited anyone from signing up for more than one toll agency’s transponders for the same vehicle. 

Finally, the discount program had at best only an incidental impact on interstate commerce:

Here, the effect on nonresident drivers--just as on resident drivers --is that to qualify for the discounts, they must invest $27.50 to acquire a transponder and maintain an account balance of $10-$20. That burden is de minimis in relation to the public benefits of achieving a more equitable sharing of toll burdens among commuters, some of whom pay no tolls on their routes, and facilitating the implementation of an essential funding scheme for major highway improvements.

Nice result, and nicely reasoned.

November 12, 2003
Goose turds—the gifts that keep on giving

When it comes to environmental policy choices, tradeoffs are inevitable. 

For example, the News-Journal ran a story today about some of our feathered friends from Canada and the gifts they leave behind.

Each year, thousands of tons of goose turds are the direct by-products of the decision by the state’s environmental regulators to improve stormwater management practices for new developments throughout the state. Commonly-held public areas within residential subdivisions must now include ponds and/or other stormwater retention systems, based on calculations of the cumulative effect of all the new impervious surfaces on the development’s landscape, including roofs, streets, and sidewalks. 

With manicured lawns running down to the waters’ edge, the birds love the dozens of new ponds dotting the state. Some folks are not nearly as pleased, however:

One side is fed up with tattered lawns, ruined crops and byways fouled with goose droppings, which they contend are germy and pollute ponds to the point where algae sprout, fish die and odors grow.

Others contend the problem is not the birds, but sprawl that brings people to places the animals have long called home, at least seasonally. They argue the droppings pose no health hazard and are less of a pond pollutant than the fertilizer used on lawns and fairways. 

As reported by Sussex Bureau reporter Chip Guy, one neighborhood near my own is trying a new technique to discourage geese from dropping by (and I mean that literally):

This fall, residents in a Rehoboth Beach-area development have drawn a new battle line in the fight over Canada geese - strips similar to heavy fishing line strung across two ponds to discourage a fowl invasion.

The Villages of Old Landing home owners' association said it is trying to protect the ponds and surrounding grasses from droppings that could swamp the water with excess nutrients fueling algae blooms.

Association president Paul Smith said he enjoys having a handful of geese waddling along the banks of the ponds. But keeping the ponds clean and the grass intact are the priority. "That outweighs not having them there for five months," he said.

According to the company that did the installation, the lines reflect ultraviolet light that spooks the birds well before they run any risk of becoming entangled in the strings.

Several other methods are used to encourage the geese to go elsewhere, including trained border collies, noisemakers, and in some towns, strict prohibitions against feeding the 12-to-24 pound birds, each of which produces one to two pounds of droppings per day.

I wrote about this issue in my Cape Gazette golf column just over a year ago. One golf course superintendent’s approach worked really well, but using the same method in residential areas would require a change in landscape aesthetics. Here’s how I described it last October:

Prime Hook National Wildlife Refuge is a very short flight from The Rookery Golf Course outside Milton, where Chris Adkins oversees course maintenance. "We made sure that the plants we put near the edges of our ponds grow high enough to scare off the geese. With the Refuge being so near, we decided to try this method. "

Adkins explained that the geese prefer to land in the ponds, and then walk up to the turf to feed. If they can't see through the pond-side plants, however, the geese can't be sure there aren't any predators hidden in the high stuff.

"The geese won't walk through there. They like clean lines of sight. I know that the trimmed, clean look along pond edges is what a lot of other clubs do, but growing the plants high works for us. That's all I had to do," Adkins said.

I called The Rookery today, and confirmed that Adkins’ landscape design is continuing to discourage geese from the golf course ponds. The high plantings stretch about 6 feet back from the pond edges, enough to convince the geese that something nasty could be hiding in there. 

Adkins’ naturalistic, practical approach to the problem has a lot more aesthetic appeal to it than stringing a bunch of lines across the ponds. It’s not the look of a formal English garden, but there aren’t any goose turds lying about, either.

It certainly seems like the right kind of environmental tradeoff to me.

November 11, 2003
Small town business owner complains about law enforcement; First Amendment hijinks ensue

Small towns sometimes have a relaxed approach to enforcing their laws. 

Customs can take precedence over the literal terms of city ordinances, and folks become used to the way things are.

In Trenton, Missouri, for example, business owners and others tended to park their cars in front of their stores for the day, even though there’s a two-hour time limit. The police didn’t bother with enforcing the restriction, unless somebody complained. 

Even when folks do complain about problems, however, small towns can be a little slow on the uptake. That’s what Carolyn Fay Garcia discovered when she became upset with all of the bike riders using the sidewalk in front of her Trenton gift shop. She decided to do something about it, so she brought the issue to the City Council’s attention. After two meetings, the council told the police chief to take action. 

Nothing much happened, however, as far as Garcia was concerned, so she complained to then-mayor Timothy Whitaker. She also contacted her local state representative and state senator to criticize the lax enforcement. 

As one might imagine, these complaints did not endear her to the mayor. After one heated exchange in August, 2000, Whitaker told Garcia he would have the parking limits enforced against her, thanks to her repeated complaints about the bike problem. 

Whitaker kept his promise. Within the next two months, Garcia was ticketed four times, including one issued the same day she argued with the mayor.

This was highly unusual, since Garcia had not been ticketed for a two-hour parking violation since she opened her shop ten months earlier.

The four parking tickets cost Garcia a total of about $35. They ended up costing the mayor a lot more. 

Garcia sued the mayor, the police chief, and the City, arguing that she was singled out for enforcement on the parking limit solely because of the exercise of her First Amendment rights. 

The jury ruled against her on the claims against Trenton and its police chief, but agreed with Garcia on her claim against the mayor. They awarded her $5,000 in compensatory damages and $20,000 in punitive damages against Whitaker. 

The District Court intervened, however, and granted judgment for Whitaker as a matter of law. 

Garcia appealed, and the Eighth Circuit reinstated the jury verdict. 

As the appellate panel saw it, this case required an objective analysis of the whether a person of “ordinary firmness” would have been deterred by the Mayor’s actions. It ruled there was sufficient evidence to support the jury’s verdict: 

[W]e are mindful of the words of Judge Posner…:

The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.

[citation omitted] . . . The question is not whether the plaintiff herself was deterred…. What would a person of "ordinary firmness" have done in reaction to the tickets? Would he or she have simply ignored them, or would he or she have been slowed down, at least to some degree? The issue is a close one, in our view. The total amount of the tickets was not large, $35.00. However, they came during a period of less than two months, and the threat of further harassment could reasonably be inferred. Ultimately, this sort of question is usually best left to the judgment of a jury, twelve ordinary people, than to that of a judge, one ordinary person. The jury, after all, represents the conscience of the community. It decides many similar questions — for example, what would a person of ordinary prudence have done in certain circumstances? Here, the matter is sufficiently close, in our view, to come within the jury's province.

The other lesson here, of course, is that some folks are just not cut out to be community leaders. Ribbon-cuttings are nice, but the real test for local leaders is in finding ways to reduce the petty annoyances that trouble their communities, without taking offense at those doing the complaining. 

Unfortunately for former Mayor Whitaker, he’s just learned an expensive lesson in how not to handle his fellow citizens.

November 10, 2003
Animal House and the Americans with Disabilities Act

Sell-outs were common during last weekend’s Rehoboth Independent Film Festival. On two occasions, in fact, our seat choices were limited to the first three rows back from the screens, in front of the cross-theater aisle.

Not our favorite seats, but at the Movies at Midway, where Festival films played on eight screens simultaneously, the sight lines are pretty good, even up front. 

Nothing blocks the view at any of the seats, and there’s no real need to raise one’s chin or otherwise alter one’s normal seating position in order to see the screen.

Wheelchair-bound movie fans at the Festival used designated spaces in the first row of the stadium seating area behind those first few rows, adjacent to fixed companion seats.  When no one needed the wheelchair spaces for their intended purpose, the theater staff brought in extra seats to fill the spots. 

This recent experience came immediately to mind today as I read the latest Americans with Disabilities Act decision about stadium seating, issued by the Sixth Circuit on November 6. 

Fittingly enough, the Department of Justice’s actions in the case also dovetailed very nicely with a fundamental life lesson imparted during one of the all-time movie classics, Animal House

Cinemark is a major movie operation, with locations throughout the United States. It’s been building stadium-style movie houses since 1995. 

For new movie theaters and other new commercial construction, compliance with the ADA is a critical design requirement. Among other issues, the ADA regulations deal specifically with seating arrangements:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.

As part of its ADA enforcement efforts, the USDOJ also created a certification process, officially approving various state accessibility codes as in compliance with ADA regulations. For example, the Feds certified the Texas Accessibility Standards (TAS), and even issued a press release about it:

Builders in Texas who follow state building codes can be assured that they are complying with federal guidelines as well, now that the Justice Department has certified Texas codes as being in compliance with the Americans with Disabilities Act . . . .

“Everyone in the state of Texas—builders, architects, business owners, and the general public—will benefit from Texas’ new accessibility standards” . . . . “Certification makes it easier to comply with the law.”

 . . . Builders will benefit from this new process because it ensures that construction which meets state codes meets the requirements of the ADA. Builders will also have additional legal protection in ADA lawsuits if they build in compliance with the certified code. [emphasis by Sixth Circuit].

In fact, Cinemark relied upon the official Justice Department certification of the TAS rules in building its theaters in Texas and elsewhere between 1995 and 1998.


Notwithstanding their own certification, the Feds sued Cinemark in Ohio, alleging that its new stadium seat designs failed to meet ADA standards. The DOJ argued that the designated seating areas for those in wheelchairs didn’t provide comparable sight lines to those experienced by most of the other patrons.

The Feds' changed position, of course, is what reminded me of a critical moment in Animal House, where Otter gives Flounder some extremely practical advice:

Flounder, you can't spend your whole life worrying about your mistakes! You f***ed up -- you trusted us! Hey, make the best of it!

I don’t know if Flounder was ever mentioned during the proceedings before the District Court, but as one might expect Cinemark did point to the DOJ certification in its defense. That and other evidence convinced the trial judge, who ruled in favor of the company.

On appeal, however, the company didn’t fare quite as well.

The Circuit panel held that the ADA analysis had to go farther than what the District Court considered:

We leave it to the district court on remand to determine the extent to which lines of sight must be similar for wheelchair patrons in stadium-style theaters, but hold that the plain meaning of “lines of sight comparable to those for members of the general public” clearly requires more points of similarity than merely an unobstructed view.

On the other hand, footnote 10 of the panel decision makes it very clear that the Circuit judges were troubled by the prospect of significant changes to structures built in reliance upon the DOJ certification. The note recounts several representations made by the Federal attorneys during oral argument about what would happen on remand. For example,

“I want to make very clear to the court, we have emphasized repeatedly the United States is not—has not and is not going to argue, for example, that the entire interior of the theater be gutted or torn down. We are going to work with the defendants to come up with a reasonable approach.”

In addition, the DOJ counsel also noted that the type of access provided by the Movies at Midway would meet Federal concerns:

“[f]or the typical stadium-style theater that we’ve seen, if the wheelchair space was up on the first row of that elevated section, I think, as a remedial matter, we would be satisfied.”

At the end of this note, the Circuit Court gave the Feds a fairly blunt warning:

Our holding in this case assumes that the DOJ will stand by these representations.

One doesn't often see that kind of comment in an appellate opinion.

I expect it will be taken seriously by those to whom it was directed.

On the other hand, those who must deal with the Federal government would also be wise to remember Flounder's lesson.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003