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Author Topic: Disabled Hams in HOA/CC&R/Deed Restricted/Apartments/Etc...  (Read 9519 times)
KC8GPD
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Posts: 49




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« on: November 09, 2011, 02:13:53 PM »

i had an interesting thought. what if the said licensed ham is disabled and housebound either because of a mental or physical disability. it can be argued with testimony from a licensed doctor that this is a tool to help with said disability in as such can be used to help the disabled stay in contact with a social base in an effort to ease the depression and isolation incurred from the disability.

can the homeowner/renter sue under the ADA and be granted the installation of antenna's for his/her federally licensed activities as an aide to help cope with their disability?

I know it can be applied to pets and other devices much more intrusive on neighbors than a ham antenna.

just an interesting thought i have had for a while now.
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KC8GPD
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Posts: 49




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« Reply #1 on: November 09, 2011, 02:50:16 PM »

one other sidebar that is kind of on this topic. i have seen in recent years HOA's using CC&R's to regulate RF emitting devices who's antenna's and transmitter unit reside inside the walls of a dwelling. multiple lawyers i guess say this is legal, but has a regulation like that ever been tested and upheld in court? or is it something that just gets by because no one has yet to test the validity of such a regulation in a court of law.

this is another question i have been kicking around in my head and both i think are some very good questions.
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N3WAK
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Posts: 274




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« Reply #2 on: November 09, 2011, 05:35:47 PM »

You ask, "Can the homeowner/renter sue under the [Americans with Disabilities Act] and be granted installation of" antennas, etc? 

That's an interesting question that can only be answered by a lawyer who's knowledgeable about the ADA.  Have you considered hiring one and asking them the question?  Lay people on eHam certainly can't know the answer to your question. 

Plus--do you know a doctor who IS of the opinion that ham radio would be essential to helping "the disabled stay in contact with a social base"?  Why wouldn't the TV, the Internet, Skype, or a cell phone accomplish exactly the same thing?  Why would ham radio be "essential"?  Frankly, it isn't.   

With respect to HOAs regulating RF emitting devices:  If the homeowner agreed to CC&Rs that prohibit transmitters, then I would guess the HOA could regulate them--or at least try to, because the provision may not be enforceable.  If there is not a deed restriction regulating them, the homeowner could do anything that he or she pleases. 

There are plenty of people--myself included--who offer opinions on what's allowed or not allowed, but, for the most part, these are not informed opinions.  People toss out the Fourth Amendment, the ADA, the First Amendment, and arcane provisions of state law, and tortured hypotheticals about HOAs and CC&Rs.  But the problem is that nobody knows--there are simply too many "barracks lawyers" (as we used to call them in the Service) on eHam.  Respectfully, in my opinion, many of these hypotheticals are plain cockamamie. 

Many people give opinions on deed restrictions, but NOBODY knows the answers.  The bottom line: The best way to get a definitive answer is to ignore the HOA and hope they sue you, so you can challenge the deed restriction in court.   Still, that court determination is probably going to be "fact specific"--it will be based on the specific language in your deed restriction, and the law of your particular state. 

People enjoy venting about communism, socialism, and the "fat cats" who run HOAs.  However, venting accomplishes nothing at all.  People should either hire lawyers to contest a deed restriction they don't like (but likely agreed to when they bought their home), or figure out a way to have fun with ham radio using a stealth antenna or from their car. 

IMHO, people should stop complaining about deed restrictions, and start talking about the best ways to hide an antenna.  If somebody wants legal advice, they should hire a lawyer.  They're not going to find the legal solution to their problem on eHam, however empathetic the rest of us are. 

Just my two cents' worth.  73, Tony N3WAK
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KC8GPD
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Posts: 49




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« Reply #3 on: November 09, 2011, 08:17:44 PM »

just an interesting thought. i remember a lady in public housing who sued and i believe won (cant remember the outcome) under the ada the right to have a pony in public her hud apartment because it was an aide to her disability. she had a small hay stall in her apartment.

i was actually thinking of that situation when i had this thought.

this was many many years ago so i cant remember the details or even where it occurred.
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N3WAK
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Posts: 274




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« Reply #4 on: November 10, 2011, 03:23:04 AM »

Quit horsing around! 
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KG4RUL
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« Reply #5 on: November 10, 2011, 05:20:41 AM »

The horse was considered to be a 'helper animal' under ADA regs.
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KC8GPD
Member

Posts: 49




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« Reply #6 on: November 10, 2011, 07:43:41 AM »

yes but a horse in a multi unit dwelling is still a little ridiculous by most peoples standards. i'm just offering suggestions that **MIGHT** be of use to someone. i live in an apartment not an HOA but my mind is always thinking.

i have two porches one uncovered and can easily install my screwdriver and pound a rod in the ground and run a short ground.

it's a very interesting situation i have here. i just haven't got to it yet.

i'm just looking for idea's to help those stuck in HOA's.

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WX7G
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Posts: 5971




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« Reply #7 on: November 10, 2011, 09:55:15 AM »

I don't think a waiver can be obtained.

Able bodied hams do quite well in antenna restricted neighborhoods. Stealth antennas can work quite well. Disabled hams can do the same.
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KC8GPD
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Posts: 49




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« Reply #8 on: November 10, 2011, 10:09:14 AM »

hey a woman sues McDonald's and wins because she stuck hot coffee between her legs. anything is possible in a court these days. i merely made the suggestion we will never know until someone tests the theory and wins or loses.

be nice if some tested it and won as people (and i find it sad that a lot of hams are too) very short sighted on this issue.

many area's it's getting impossible due annexing of older neighborhoods and the requirement new ones have HOA/CC&R's.

i found the old proposal (and corresponding forum discussion) to amend prb1 to include CCR's.

one of the topics brought up was a lack of competition in the HOA business with most using uniform cookie cutter rules copied from HOA trade organization sites. the other of course was that many area's now require CCR's and HOA's be required on all new subdivisions.

it was suggested by a poster that if a ham moves to a HOA neighborhood where there is no HOA's within a defined area of the intended location making allwances for ham antenna's that it was to be considered lack of competition and PRB1 should apply to CCR's also it should apply in area's where the Municipal government requires new subdivisions have HOA/CCR

i thought this was a good suggestions (especially the second suggestion) and did not see anything in the House Bill in the early 2000's suggesting such a thing.

i hope if this bill gets revived that such language gets included. it may be easier to get the bill through congress in that regard other than just making a blanket amendment to prb1.

it might be also good to attach it as a rider to a politically hot bill has lots of support to pass.
« Last Edit: November 10, 2011, 10:10:52 AM by KC8GPD » Logged
N3WAK
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Posts: 274




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« Reply #9 on: November 10, 2011, 11:30:33 AM »

Robert:  I still think you should buy a pony and see what happens.  Hey--it's not a bad little idea that you trotted out (amongst all the ideas jockeying for our attention), and harnessed with some positive energy, and perhaps supported by a Gallup poll, you could be on track to rein in those out-of-control and unstable HOAs. 

73, Tony N3WAK
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AG6WT
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Posts: 443




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« Reply #10 on: November 10, 2011, 01:42:02 PM »

Hiring a lawyer is expensive.

Hiring a doctor to give testimony is expensive.

Taking the lawyer and the doctor to court is going to be VERY expensive.

Installing stealth antennas is cheap.
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AA1BN
Member

Posts: 56




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« Reply #11 on: November 11, 2011, 09:12:19 PM »

Tony.......

Re:
"The bottom line: The best way to get a definitive answer is to
ignore the HOA and hope they sue you, so you can challenge the
deed restriction in court."

(Isn't that some sort of legal advice?)

KC8 -  No. If you ignore the HOA, they levy a fine, then -YOU-
take -them- to court. You will have to argue that the fine has
been illegally levied for whatever reason you think it's illegal.

If the judge finds in your favor, you get your antenna, and the
defendant may possibly be required to pay your attorney fees.
(that varies by state).

If the judge finds that the CC&Rs have been correct and you
are disobeying those CC&Rs, then you will pay the court costs,
attorney fees, and perhaps the defendants attorney fees as well.
(varies by state)

You'll have to wait until the amount of the fine is increased due
to interest charges for not paying the fine on time, and the amount
is enough for a small claims court appearance (usually over $500)
Or.... you can wait until the HOA forecloses on your home for
non-payment of fees, then make a case out of it. That can really
scare the hell out of the wife, and leave you fairly celibate for a few
years, perhaps longer.

Read your CC&R carefully, and weigh it against the town/county
and state's rules governing an HOA. You have to do that first,
and make certain that you're not going to be wasting your time
and cash trying to do what can't be done.

After you read and re-read it all, if you still feel you have an
issue, contact an attorney specializing in real estate, and run the
whole barrel of BS by him; see what he thinks.

In our HOA (and most are the same), the CC&R states that
any "addition" to outside the home must be approved by the
"architectural committee". It really doesn't matter what it is,
it has to be "approved".

In my case, they fined me without notice (14 day notice is required),
and without providing me with a hearing (also required prior to levying
a fine). Since the Florida statutes states those requirements prior to
levying a fine, and they ignored the statutes, I have a case.

Tony is right, tho... build a stealth antenna. It's a helluva lot easier
(and cheaper) than going to court. We hams are suppose to be
inventive. We're said to be able to communicate under the harshest
of conditions and with the most minimum of equipment!

Right now, I have a section of coax tossed over my roof, and
I'm transmitting on it's shield. My old Heathkit tuner loads into it
just dandy, and CW to nearly anyplace on nearly every band
is fairly easy. It looks like a sat dish cable (it is) that's been poorly
installed. We have a lot of that stuff here on most of the homes,
so it blends in nicely.

If you're going to fight, make sure you know the rules well!

Good luck, and very 73,

John

Oh, btw... That old gal had her skin burned down to the bone.
She was seeking medical expenses, and the burger outfit's
insurance company fought her claim. So the simple payment
for an act of negligence on the burger company's part, ended up
with a major suit. They never did pay that amount, and her bills
are still outstanding (last I heard). The burger outfit had many
(100s) of claims regarding the pressure-cooked coffee causing
bodily harm, so her claim was nothing new (although more severe
that the majority of other claims). The company has since stopped
pressure-cooking the coffee. The woman was not at fault, the
company was found to be negligent and derelict with their safe
food handling practices.

Just sayin'...

3's..

John
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AD6KA
Member

Posts: 2237




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« Reply #12 on: November 11, 2011, 11:43:03 PM »

Quote
pressure-cooking the coffee. The woman was not at fault, the
company was found to be negligent and derelict with their safe
food handling practices.

Actually the woman was found to be %20 at fault.
Google "Liebeck v. McDonald's"

The case was settled out of court for far, far less
than the original court judgement.
That case is turning into a huge Urban Myth.

AND raising the rising tide of frivolous lawsuits even higher.
Who cares some might say.....
Companies pay higher insurance premiums
and the costs are passed to the consumer.
One should also care because the result is legislation
putting settlement caps into PI lawsuits. You might
have a legit PI suit and get a shitty judgement
because of such limitations.

"Burned down to the bone" my ass.
Where do you get such nonsense? Tabloids?

« Last Edit: November 11, 2011, 11:45:31 PM by AD6KA » Logged
AA1BN
Member

Posts: 56




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« Reply #13 on: November 12, 2011, 09:34:14 AM »

Tabloids?

Go here for the real thing, and stop reading your
news reports at the grocery check-out:

http://www.higherlegal.com/the-famous-McDonalds-coffee-product-liability-case.html

73,

John
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N3DF
Member

Posts: 252




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« Reply #14 on: November 19, 2011, 11:03:14 AM »

Tabloids?

Go here for the real thing, and stop reading your
news reports at the grocery check-out:

http://www.higherlegal.com/the-famous-McDonalds-coffee-product-liability-case.html

73,

John

There's an excellent documentary on the case named "Hot Coffee" that results in all loss of sympathy for McDonalds.

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Neil N3DF
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