activities gives people homeowners time to clean up their yard and so well let me ask you a question about that you've got a very appealing case in terms of the basic fairness of it  i can't see why the city didn't give him a break however what they're supposed to not who are the a b a is deny him a public service or benefit and i can't figure out what the public service or benefits that he was denied is could you identify the being enforced against them is time to clean up and the city relies on the participation of homeowners that's why they give them time they want the homeowners who have been noticed with nuisances to participate in this nuisance abatement to participate in this code enforcement and so the benefit is that you have some set amount of time that presumably the city sat down and decided well that's a reasonable amount of time for a  relatively able bodied person to clean up their yard that's the benefit that he was denied and he was also unable to participate in the way that the city envisioned i would point out that what you're getting at is that what happened to him wasn't voluntary he didn't walk down to the park and say i would like to participate in this program it was something that happened to him because he had stuff in his yard and i would just point proof that you got your taillight fixed in so many two hours or something and the time itself is a public benefit and you're very well that that case that you just suggested doesn't strike me as a very good case but i think that might more readily pose an undue burden on them in my fundamentally alter the nature of their program trying to keep destiny and safe and i can imagine an accommodation might be appropriate given the severity of the traffic violation given the nature of the disability i think it's something that the court has to allow the parties to go through discovery and a sense of proof but i can see the city easily overcoming that given the facts of the case i think here it's not clear why more time couldn't be act that's the argument i think i would add is that from our perspective it appeared that the city refused to consider the accommodation request much less grants that what happened was during this time that portland gives homeowners to clean up the yard he was hospitalized and also during this time he asked for the city and a patient advocates in the cascades project asked the city for more time and their response was simply no there was no basically twofold one you have to allege that you're an aggrieved person under the act and two you have to allege that you've been subjected to an alleged discriminatory housing practice now rather circularly aggrieved person is defined by the act as someone who's been subject to a discriminatory housing practice but it shows that interpretating federal civil procedure eight to the court has set the bar fairly low at the pleadings they and they truly do want a short plain statement of the facts of the case maybe use a or that a renter might have and what the city argued and what the district court appeared to hold is that since he was not denied all used in enjoyment of his home and that he cannot say that this was a reasonably necessary accommodation let's say that you're correct i think you probably are and that your critique of that test  if they throw you out of two of your three rooms and tell you just stay in the third room and really deprive you of usin enjoyment even if they haven't surprised you of all of it my problem is i can't see where he was deprived of any use and enjoyment of his home well they didn't throw him out he could stay there he could live there he could use it if he liked the only thing is he had to conform with generally applicable regulations about medicine if you are true th afforded an equal opportunity to use and enjoy his dwelling the i think there's two ways that he was denied this first of all for better or worse one of the ways that homeowners use and enjoy their property is to store things in the the stuff into a shed some of it was firewood that he used to heat his home you know he could move it into the garage or gotten a friend to store it but because of his hospitalization he was denied that use and enjoyment that is clearly in connection with his dwelling and as we argued in our graves i think there's another way that he was denied an equal opportunity to use and enjoy the doing that has to do with the fact that this lane was satisfied for eight hundred dollars and so he literally lost the us cleanup and it ended up being a lien on his house so i think the charges for the nurse for the daughter of the tenant in california mobile home one and two are similar i also think that the turning point versus caldwell case  is on point with regard to a question that's a case where the courts i believe it went through trial was analyzing the cost to this homeless shelter of getting an annual special use permit and so that was a fine or cost that would apply to anyone who went over the normal occupancy restrictions and and so that a that's an example of a fine that applies to everyone equally that could be subject to the considerations of reasonable accommodation in a person blind right the crowd or case is also an interesting case along these lines that's the case where the state of hawaii as part of their rabies abatement effort at one hundred twenty day quarantine on all dogs coming into the state of hawaii and again that's a not involuntary rule or regulation of the state that every single person is subjected to and the court found without finding whether the particular request was reasonable or found that this is the kind of thing where the state has to at least enter into the dialogue into consideration reasonable accommodation and reasonable modification these cases that you've mentioned it strikes me that they involve a different sort of use and enjoyment california mobile home is an interesting case as you say because it deals with the financial imposition but the difference there is and well there's some language in the case the challenge to the rule most like the rules described above have the potential to deny persons an equal opportunity to use and enjoy a dwelling because of their handicap in that case without paying the parking fee for guests the woman with the respiratory disease just couldn't move their fate the risk of dying from not getting enough air and so she really couldn't live in a room house without this financial although california mobile too was interesting because what happened by the time this case went through a bench trial and got back up to this court it appeared that the plaintiff there was unable to produce any evidence  about the fact that this may have been necessary to afford her an equal opportunity use and enjoy the property and the court was looking at things like well the nurse could have parked off site where the nurse could have paid for it and apparently there was no evidence produce at trial to meet that element and we believe that mr mcgarry can show that his use and enjoyment not all of it but his equal opportunity to use and enjoy his property was in fact in french upon by the city failure to consider much less grant a reasonable accommodation in this case i'll reserve the rest of my time for  was rereading the materials to get ready for this argument i thought i would like to do this warning is to try to bring things into a little bit sharper focus i think it's critically important for the court to determine exactly what rule and a break is if you have some kind of physical problem it can be really hard to pick up things that you put down in your own yard when you were in better physical three that which the court obviously has to accept for purposes of this decision but i think the record does show even in the allegations of the complaint that the plaintiff was given some extra time i guess my point  that there's no allegation that the original violation of the ordinance that there cumulation of trash and debris in his yard was occasioned by his disability are necessary to his disability are necessary for him to use them enjoy his home in other it and he doesn't allege somehow because i have in fact disability i need to have trash and debris in my yard what he alleges is once i was in violation of that ordinance and there's no allegation at the violation of organists he didn't say there working on it and then you get interrupted by a phone call and you go inside for the phone call and then something else comes up and you forget to remove what you put down and now what was a useful item that you were working on has just become the group and you have a canoe you put your canoe down and you back goes out of sight and you can't pick the canoe up at has changed from your recreational equipment to them to remove the city has no obligation to accommodate someone who is willing to remove what is physically unable to do it within a certain timeframe say if unless he were to no imposition of any sanction if he had removed it within a certain time frame it's the failure to remove within a certain time frame that triggers the sanction so isn't there are there are two aspects to the letter will come in tow it could a disabled individual come in and say well i really do want to get it running that due to my health it's going to take me longer it's going to take me some unspecified period of time to work on that track or maybe not or maybe so  isn't that the purpose of the question of reasonable accommodation if it turns out that the demand by the disabled person as you say is unreasonable that's all we're talking about here is is  city to take a look at the individual and circumstances of someone who's disabled and what kind of dialogue you're talking about which is quite reasonable i don't think they're disputing or the same kind of fits of government services if someone alleges that because of the disability they can't comply with the law then the city has an obligation to say can we reasonably accommodate that if someone violates the law for reasons unrelated to their disability and then says oh because of my disability i need extra time to come in compliance my point is i don't think disabled individuals friends title to violate laws for reasons unrelated to the to the dump and maybe it takes three weeks before it warms up my heart will start now i've got an accumulation of trash in the yard now if my back goes out and i can't take the trash for another two weeks then i've got a lot of trash piling up to the point where if i live in a more urban sort of setting somebody would probably notice that the there isn't any difference between putting it down and picking it up it's not like the disability doesn't make him put it down so well sort of i don't believe he has no relevance distinction between the putting it down and picking it up it just gradually turns from ordinary functions of living into a crash filled yard because of his can break the law and then have some exemption on compliance with remedial last fact unless the breaking the law in the first instance was attributable to the disability  whatever and therefore it has built up he was an evil in and normal course of his life and therefore the accumulation itself was attributable to his disability  generally applicable law where there's no allegation that this individual could not afford to hire someone there are very many people who when their service some kind of a no just can't do the work themselves they're elderly people who aren't disabled that they're not capable of it off and when these occupancy where people have expressed concerns well we're going to have a build up with that many people there of trash and debris and that kind of thing what the court said is that can be addressed through ordinary nuisance law nuisance plan obligations to maintain property are not the kinds of obligations that are required to be accommodated in leicester something that rises to the level of interfering with somebody else use and enjoyment but here that the city doesn't say you have to clean th yourself the city says as a property owner you have an obligation not to have a nuisance condition on your property and that obligation attaches regardless of whether someone has a disability or not the point is that there are many people who aren't disabled who still to comply with the last generally the last regular regulating fire safety the last regulating electrical codes those are there for public safety this is a public safety case and it's not a defense to complying with those regulations that someone is disable and cannot do the work themselves let me answer when i was questioning your adversary i asked with relevance to one of the statutes what public benefit is the point of being deprived and with respect to the other arguments on public benefit and use of enjoyment i've overlooked so that you need these other areas of the case you're focusing on not hell and i think that the  public benefit piece kind of dovetails with what i was trying to say  that he had been told it would be done by experts and he had been told it would be done next time he had been told it would be done by x time when he went back to the property the condition was not materially improving and he didn't see anything else just to believe that it would continue to that there would be any material improvement in the condition of the property that get into this condition are in that condition because the property owner is not able to clean up and if you know whether it's an elderly person whether it's an alcoholic whether it's somebody who has another incapacity that's how houses get into the beginning that there wasn't even an effort to engage in a dialogue it was i mean if you're saying the inspector did make some extensions of time but was there any effort to sit down with cascade or with anybody else to i think i'm not sure that's what the district court wrote but i think that's what the district court found appealing was that he wasn't really complaining about being executed but he was complaining about being included and i would just say that there's no distinction in the act itself and in fact the case law applies to all sorts of involuntary benefits and participation of services activities and programs for example dog quarantines prison administration arrest parole decisions i mean there's a whole slew of situations where things are being done to people but the eighty eight isn't completely off the charts so with regard to the benefit it's a slippery idea but there is this participation in the city of portland invasions homeowners engaging and with regard to nuisance and maidment and you know if you're the one who's got the message you are you probably would rather the city portland had not included you in this but you do have time and that's a benefit of this program and it's only through discovery that will know how that works because it doesn't appear to be written down how much time people have that they presumably give everyone the same amount of time and it's based on how long they think it will take people to to clean up the yard so that there is participation and there is a benefit there regarding the other claim the fair housing act the use an enjoyment again the question at this stage is whether through the course of free mr mcgarry will be able to produce any set of facts in support of his claims that will entitle him to relief and we think that he can there's many possible sets of facts that will that will show that he was not afforded equal opportunity to use and enjoy his dwelling when we ask you about something i want to hear more about that but i'm wondering if this isn't the public's safety as well as  could be a fire hazard i mean you could have hazardous waste in your yard and i think all of that is going to go to whether after request was reasonable to begin west and whether or not we're right on time that will be brought out through the discovery process in a trial and so you know the city's for lucky enough to have the opportunities that he's going to have the opportunity to raise defenses and say this was not a reasonable request this this was a public safety issue i mean the crowd or case is interesting i mean trying to keep rabies off the islands of hawaii is clearly a public safety public health issue and the court sad you have to enter into the dialogue and look at the request but i would assume that the bars the time when you're asking a state to change their rules and modify and accommodate a something as important as quarantining animals to prevent rabies but nonetheless there might be reasonable accommodations and reasonable modifications that don't infringe upon or fundamentally alter the government's interest so the use of enjoy the only point i wanted to make about that is that the city in the district court seemed to indicate that a person need to be completely denied use and enjoyment and i think that the phrase an equal opportunity is the key phrase here and there  proposition is rejected and i'm still all i can tell that you've given us one use and enjoy as you said enjoyment of the money and i'm thinking well when you can put your fresh in your pickup truck try to hire a craft service or figure out some way of hiring somebody to do it for you and that's not the provision of use and enjoyment of your house just of the money that you have spent well you know it may be through discovery that there are other uses and enjoyments that come up with the two that i know of that are likely are both the eight hundred dollars in equity in his his rights to use and enjoy that and this concept that people use and enjoy their property by putting things in their yard and that but for his disability and the studies failure to consider here's the misfortune of living in a settled their area and organ instead of in the woods in alaska he can't put stuff down if you are the same way well there are obviously can but the question is whether or not the law and visions the possibility that he might ask for more time as an accommodation and it's our position that he that he cannot is a proper request or any other use in enjoyment that you can think of that could be pleaded here besides used enjoyment of the eighteen hundred dollars and use and enjoyment of being able to put debris down in his yard i think those are the two that that i've been able to think about over the last couple of weeks and you know that the fact that it happened involves his yard is not a critical distinction i mean there's all sorts of accommodations that don't occur in doors inside and we're not saying the yard isn't wiling but  we believe that he was not afforded an equal opportunity to use and enjoy his dwelling because of the city's failure to county and both of those west thank you