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

National Federation of Independent Business 1201 F, St, NW, Suite 200, Washington, DC 20004 (202) 554-9000 August 15, 2008 The Honorable Grace C. Becker Acting Assistant Attorney General for Civil Rights U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Office of the Assistant Attorney General, Main Washington, D.C. 20530 Attn: CRT Docket No. 106; AG Order No. 2968-2008 Re: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities To Assistant Attorney General Becker: The National Federation of Independent Business (NFIB) along with the NFIB Small Business Legal Center are pleased to submit comments to the Department of Justice (DOJ) on its Notice of Proposed Rulemaking (NPRM) regarding the adoption of the Access Board's revised Americans with Disabilities Act (ADA) Accessibility Guidelines (the "Revised ADA Guidelines") into DOJ's regulations to replace the current ADA Accessibility Standards located at 28 C.F.R., Part 36 (Appendix A) (the "ADA Standards"). INTRODUCTION NFIB is the nation's leading small business association, with offices in Washington, D.C., and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB's mission is to promote and protect the right of our members to own, operate and grow their businesses. NFIB represents 350,000 small businesses, the average member has about six employees and 90 percent of NFIB's membership has fewer than 20 employees. NFIB's average member has gross receipts of $350,000-$500,000 per year. NFIB members include all segments of the NAICS codes, including many main-street retailers and restaurants. The NFIB Small Business Legal Center is a 501(c)(3) public interest law firm created to protect the rights of America's small business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. Small business owners are proud of the commitment they have made to accommodate the disabled. Since the passage of the ADA in 1990, NFIB members have spent millions of dollars constructing and/or renovating their businesses to remove barriers and provide accessible public accommodations. Nevertheless, NFIB has very serious concerns about the Revised ADA Guidelines that will significantly impact millions of small businesses. First, as set forth in section I below, the existing ADA regime has imposed a very significant compliance and litigation burden on small businesses. Second, though NFIB appreciates the efforts of DOJ to provide safe harbors to the small business community, we believe that certain clarifications and modifications need to be made to the small business safe harbor for readily achievable barrier removal. Our suggestions are set forth in section II below. While DOJ has recognized the significant burden this proposal will cause to small firms, NFIB believes that there are still several expenses not accounted for in DOJ's economic analysis. In section III, we will attempt to explain the several areas of additional costs this ADA proposal imposes on small businesses. In our final section, NFIB will describe other concerns it has with the proposal. In addition to addressing the foregoing concerns, NFIB's comments respond to some of the specific questions asked by DOJ in the NPRM. We will also identify the problems that small businesses have encountered with Title III of the ADA and provide suggested solutions. I.THE UNDUE BURDEN THAT THE ADA HAS IMPOSED ON SMALL BUSINESSES A.Difficulty and expense of complying with barrier removal obligations The ADA was enacted "to provide clear, strong, consistent, and enforceable standards addressing discrimination against individuals with disabilities [and] to ensure that the Federal Government plays a central role in enforcing the standards. . . ." 42 U.S.C. 12101 (b) (2) and (3). Unfortunately, the current re…