Disabled Action Committee

Mobilizing PWD against a rollback of the ADA

We need people to file comments on DOJ's newly proposed reg (28 CFR § 36.304(d)(5)) to exempt small businesses from removing architectural barriers when it is readily achievable to remove barriers.

So far, few comments have been filed.

The newly proposed regulation has been added by DOJ to the proposed new ADAAG drafted by the ATBCB.

DOJ has to learn that the proposed reg is vague and is going to harm people with disabilities. Attached is a full statement about the proposed reg. You can also download an entire copy of DOJ's proposed regulations and the new ADAAG at this site.

You can post your comments via the internet by:

1. going to regulations.gov
2. search for "DOJ-CRT-2008-0015" in the brown or blue search box
3. click on any of the brown icons (shaped like a small bubble) below any of the names of people who have filed comments and fill out the form and comment section.

Here are the details:

COMMENTS RE: DOCKET ID  DOJ-CRT-2008-0015 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

The bottom line: The U.S. Department of Justice plans to exempt "small businesses" from having to remove architectural barriers under a newly proposed 28 CFR § 36.304(d)(5). Nearly all shopping centers ("existing") are "small business" entities. Since shopping centers spend, on average, 8% of revenue on maintenance, they are in a perfect position to claim that they have already met the 1% requirement. The proposed regulation neither defines gross revenue nor defines which "measures" are counted towards the 1% exemption threshold. Existing shopping centers shouldn't have any trouble avoiding further barrier removals, such as ramps, curb cuts, and level parking, under this regulations since they can easily claim that they spent more than 1% of their gross revenue the previous year on items that relate to accessibility.

The U.S. Department of Justice plans to exempt "small businesses" from having to remove architectural barriers under a newly proposed 28 CFR § 36.304(d)(5). Thus, "small businesses" that have failed to make their businesses accessible for the last 16 years will be rewarded by the DOJ with a new excuse and method to avoid making their business accessible. The newly proposed DOJ regulation 28 CFR § 36.304(d)(5) to Title III of the ADA  can do significant harm to the ADA as it is vague and designed to reward "existing facilities" who have still not made their facilities accessible since 1992. The proposed regulation does not directly apply to newly constructed or altered facilities.

This proposed, so-called, "safe harbor" for "small businesses" actually exempts millions of public accommodations in this country. The biggest problem concerns shopping centers. A shopping center owner is a small business if its revenue is less than $6.5 million. The average total revenue per square foot (Urban Land Institute, "Dollars and Cents of Shopping Centers" 2008) for lease space in a community shopping center is about $15 per leased square foot. Thus, an average community shopping center with $6.5 million revenue has, on average, about 433,333 square feet of leaseable space. A community shopping center near me has, for example, has over 30 retail stores with several anchors including a supermarket, Best Buy, movie theater, Bed Bath & Beyond, 1800 parking spaces -- all on about 35 acres of land --  with only about 375,000 square feet of leaseable space. Thus,. except for large regional shopping centers, the great majority or nearly all of the existing shopping centers in this country will be exempt "small businesses".

If exempt, then the following proposed regulation [36 CFR § 36.304(d)(5)] would apply:

A qualified small business has met its obligation to remove architectural barriers where readily achievable for a given year if, during that tax year, the entity has spent an amount equal to at least one percent (1%) of its gross revenue in the preceding tax year on measures undertaken in compliance with the barrier removal requirements of this section.

This single sentence is one of least defined sentences in the ADA. This proposed regulation defines nothing, it invites noncompliance and leaves small businesses open to expensive litigation.

Lets take the two major elements of this proposed regulation and give them the slicing they deserve. First, what is the definition of "gross revenue?" That's not a hard problem for a retail store, but what about banks, insurance offices and stores that sell warranties. Shopping centers, for example, have "Common Area Maintenance." Is CAM part of gross revenue which automatically adjusts when maintenance costs go up or simply money collected by the landlord from all the tenants that is used for their benefit and therefore isn't really part of his gross revenue?

The second part which is undefined is determining what money is spent on "measures undertaken in compliance with the barrier removal requirements of this section."  Does money spent on  maintenance count? If a shopping center pays to remove snow from the sidewalk, isn't that a measure undertaken to remove a barrier? Shouldn't all or part of snow removal, sidewalk cleaning, restripping expenses be counted? If the manager or president of the shopping center spends time working on maintenance issues, shouldn't, at least, part of his salary, bonuses, benefits and insurance be included in the 1% threshold? If 36 CFR § 36.304(d)(5) were meant to simply refer to 36 CFR § 36.304(b), it should say so. Since the average shopping center spends more than 8% of its revenue on maintenance alone, it can easily claim they have met the 1% threshold. Then, will there ever be any money for curb cuts, ramps and handrails under this proposed regulation?

Next, if a shopping center puts in a number of ramps and depreciates them over five years, what part of this cost is included in the "1% qualified expense"? Do we use depreciation figures from a shopping center's tax return or from a version of their internal financial statement? Or is depreciation or accelerated depreciation even allowed? Similarly, do we count the money paid to an ADA expert who happens to be the otherwise unemployed child of the shopping center owner as a qualified expense?

Next, how do we separate expenditures involving alterations and additions from the undefined expenditures of this 1% threshold? If an existing shopping center, puts up a new Best Buy store, what part of those costs should be counted as part of the 1% threshold? How should we account for a new curb cut that serves the new store and the adjoining old store?

Finally, how should we apportion barrier removal expenses between the tenant and the landlord. If the landlord spends the money, isn't he really spending the tenants money? If the tenant is spending the money, isn't he doing so because the landlord tells him to do so? Should both the landlord and the tenant each receive credit for what was spent? Is there a way to stop this double dipping? Is there going to be any way to sue a shopping center without listing all of the tenants also as codefendants?

Vague regulations that use undefined accounting terms are as bad as law that promise access but have no ADAAG or definitions behind them. Laws regarding accessibility existed for many years before the ADA was passed. It was the adoption of uniform, objective standards that allowed courts and business to understand what needed to be done. Proposing a new regulation that is vague and rewards those few places that have still not been made accessible undermines the Americans with Disabilities Act. Persons with disabilities will be harmed by this proposed regulation.

Help make the DOJ understand that the proposed exemption of small businesses is an unworkable loophole. Don't let the ADA be destroyed.

You can find the complete  DOJ documents and make comments at the following web addresses:

http://www.regulations.gov/fdmspublic/component/
main?main=SubmitComment&o=090000648062a604

or at: http://www.regulations.gov

for Docket ID DOJ-CRT-2008-0015

Docket Title:     
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

Document ID DOJ-CRT-2008-0015-0001

Be certain that your comments are important and are due by August 18, 2008. Tell DOJ that the regulation is vague and will harm persons with disabilities.


Submitted by,

Barry Weintraub, Esq. bw@myadalawyer.com

and

Mr. Anthony J. Brady, Jr., Esq. ladbrady@gmail.com