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20515 Dear Congressman Smith: This letter is in response to your inquiry on behalf of your constituent, (b)(6) concerning the effects of the Americans with Disabilities Act ("ADA") on small businesses. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the provisions of the ADA. It does not, however, constitute a legal interpretation, and it is not binding on the Department of Justice. The ADA carefully balances the rights of persons with disabilities with the costs to businesses of providing access. The regulations formulated by the Department of Justice maintain the law's careful balance and recognize the legitimate needs of the business community for efficiency and profitability. The smallest employers are exempt from title I of the ADA. Therefore, as long as XX continues to employ fewer than 15 employees, he has no obligations with respect to his employment practices under the Act. Although XX letter doesn't specifically describe the nature of his business, it does not appear to be a public accommodation. Accordingly, his business would be considered a commercial facility and would have obligations under title III of the ADA only insofar as the business chooses to make alterations to its existing buildings and facilities or to undertake new construction of buildings or facilities. cc: Records; Chrono; Wodatch; McDowney; Perley; Magagna; FOIA; MAF. :udd:perley:congress:smith.ada
01-01893 -2Restriping a parking lot would be considered an alteration and therefore must conform to the ADA Accessibility Guidelines which set the number of accessible parking spaces required according to the total number of spaces in the lot. See page 35612 of the enclosed Federal Register publication. In a lot with 25 or fewer spaces, one accessible space is required. The Guidelines permit the accessible space to be provided in a different location if equivalent or greater accessibility, in terms of distance from an accessible entrance, cost and convenience is ensured. If a lot is limited to the exclusive use of employees, and none of the employees are individuals with disabilities requiring accessible parking, accessible spaces may be assigned to employees without disabilities. I have enclosed copies of the Department's implementing regulation for Title III of the ADA and the Title III Technical Assistance Manual. You may wish to pass these on to (b)(6) for his further reference. I hope this information is helpful to you in responding to your constituent. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (2)
01-01894 Congress of the United States House of Representatives Washington, DC 20515 December 11, 1992 TOLL FREE: 1-800-533-3303 ENERGY RESOURCES NATIONAL PARKS AND Mr. John L. Wodatch PUBLIC LANDS Chief Office of Public Access SELECT COMMITTEE ON HUNGER Department of Justice PO Box 66738 Washington, D.C. 20035-6738 Dear Mr. Wodatch: I am forwarding to you a letter from my constituent, (b)(6) As a small businessman, XX has made every effort to comply with the Americans with Disabilities Act and still provide benefits for his employees. I would appreciate any assistance you could provide in solving his apparent conflict. Thank you for your help in this matter.
ROBERT F. (BOB) SMITH Member of Congress
THIS STATIONERY PRINTED ON PAPER MADE OF RECYCLED FIBERS 01-01895 Congressman Robert Smith 259 Barnett, Suite E Medford, Oregon 97504 Dear Congressman Smith; During a recent telephone call, my opening question to Mr. Mike Durman of your staff in Medford was: How did Congressman Smith vote on the Americans with Disabilities Act? His answer was that you, along with an overwhelming majority of all congressmen and senators voted in favor of it. My response to his answer was that I would therefore be voting for and financially supporting your opponent, even though I know nothing about your opponent. He reacted, professionally, but with great disbelief that I would make such a decision based on one vote, and encouraged me to "see the bigger picture". What ensued was a lively discussion in which I gained an admiration for your staff member, but nonetheless persist in my course. As we concluded our conversation, Mr. Durman suggested that I write this letter expressing my views. Mr. Congressman, the fact is that we are losing jobs in this country. I don't think anyone disputes that. What I think most people don't fully understand is the reason for the loss.
The loss of jobs is not being caused by the Federal Deficit. Most of us in business are only intellectually affected by the deficit and in fact most of us could not point to a single factor which adversely affects us because of it. There may be disaster awaiting around the door, but that's not causing us to ship jobs overseas. The loss of jobs overseas is also not being caused by taxes. The fact is that many of the alternative locations for most American businesses have taxes which rival ours in actual impact and some which approach being confiscatory. As long as the playing field is level, and we feel like our tax dollars are being well spent, we have no complaint with paying our fair share. Instead, the loss of jobs overseas comes from the burden imposed by our treacherous tangle of laws and regulations. You, better than I, know the number of laws on the books and the number of new laws, bills, rules, and regulations proposed each year in congress. Since virtually all of these, by their nature, impose some sort of restricted or prescribed behavior, and since restricting or modifying ones' own behavior is not possible unless you know what the law prescribes as proper behavior, it doesn't take a Lewis Carroll to project a day when
01-01896 it will not be possible for us to do anything because of either the certain knowledge that we will violate a specific law or the fear that we will unknowingly violate some law. This sounds like some wild-eyed doom-sayer, right? Well, Mr. Smith, I'm not. I'm a small businessman in Bend, Oregon. (b)(6) XX I have been in business since 1975 and XX small Bend office. I own my own home, XX, XX I'm not a wild-eyed fanatic. But I'm scared to death of the strangle-hold which government ... at all levels ... has on business. And worse, I'm scared because nobody seems to realize that if you kill business, you kill the country. Mr. Smith, with the ADA, government has crossed the line where businesses all
over are quietly deciding that the USA is not a good place to do business. The three presidential candidates stand and wonder about the loss of jobs overseas. Clinton thinks its because of tax advantages. Bush doesn't think about it and Perot is hung up on the deficit. Somebody's got to pay attention. It is not any coincidence that the major outflow of jobs began in this country with the passage of ADA. By the time the bill went into effect, the outflow was a steady flow. Now the ADA, alone probably wouldn't have caused the dike to break, but that's just the most recent in a thirty-year attack on business. There are laws everywhere and about everything. ADA was just the one that pushed us over the top. What prompted my call to your office would have been funny if it wasn't so tragic. XX that small building XX. If you've been to our city you know that parking downtown is at a premium, so I looked for quite a while until I found a building which would XX and also have room for parking. I found one. It was built in 1911 and was originally the XX I'm told. Our business has been growing, and we are about to add our XX. This will fill up our little parking lot, so to make life easier for everyone, I decided we should have (b)(6) like the big-boy parking lots at super markets. I called a painter and was told that there might be some sort of a law which said that I had to make one of the parking slots bigger to allow for disabled persons. Well, that
01-01897 I asked him if I could just disinvite visitors and he said that "as long as there is a possibility that someone MIGHT visit [me]...even uninvited ...provision has to be made...". I tried to point out to him that if I disinvite someone and they visited me anyway that that would be trespassing and that making special provisions to make a trespasser more comfortable seemed a bit stupid, but he protested that he was just telling me what the law said. Somehow it seems patently absurd
that you can have a person arrested for trespassing but you have to make sure they have adequate access before you do it. In fairness to (b)(6) , he did an excellent job and I gave him an inordinately hard time. The problem is, it wasn't his fault. It's yours Mr. Smith. The ADA was horrible legislation. A law proposed by special interests, promoted by a liberal press, and passed by congressmen eager to do something which would read well in the newspapers and hopefully gain them votes, but who didn't have time to read the bill. I stated to Mr. Durman that I was upset because the ADA is having such a devastating effect on small businesses and that was a major reason for my deciding to support your opponent. He said something to the effect that there are thousands of bills and each one has thousands of pages and that I couldn't reasonably expect you to read every one. My response is: yes I can expect that. I do expect that. It's like a child telling me he doesn't have time to look both ways before crossing the street...and its just as dangerous. How many laws have you voted for that you didn't read? I suggested to Mr. Durman that perhaps you should make a rule that you just vote NO on a bill unless you have time to read it and understand it. Because when you add this one more bad law to the affirmative action programs, the EEOC regulations, OSHA, unions laws, out-of-control liability lawsuits, environmentalists committing genocide on an entire sector of our society, capricious judicial decisions with major different impact in different parts of the country, and now the threat of a sex discrimination suit fad ... the businessman can't move without being afraid he's going to step in something. And the environment which the Federal Government endorses affects the attitudes of the states. Oregon currently has proposition 7 and the legislature will almost certainly
install some sort of sales tax in this next session, probably modeled after the disastrous California example. When Mr. Durman asked me to "see the bigger picture", I responded that "for me this is the bigger picture". When a small businessman in my community loses a job because I can't paint lines in a parking lot which I bought and paid for and which I pay taxes on...we've gotten awfully close to the Lewis Carroll scenario we thought was so idiotic. When I have to consult a lawyer before I paint lines in my parking lot its time to change how these laws come into being. Now Mr. Smith, consider that the regulations which I face are the same regulations which the larger corporations face. I am on retainer to over 300 corporations. About sixty percent of my clients are manufacturing companies and the rest include radio stations, newspapers, food chains, advertising companies...just about every industry you can think of. We talk. We're not happy. The only difference between my small business and theirs is that they feel it worse...one of my clients pays employees in 48 states and has 32 different OSHA 101 equivalents to file..... and they have no emotional ties to this country. Adhering to the letter of the law is mandatory for businesses. You can't risk your business because you overlooked something. The result is that we spend an enormous amount of resources just making sure that the government doesn't take our businesses away from us because of oversight. We have tons of computers, buildings full of administrators, and herds of lawyers. This makes us less competitive. When our resources are directed away from production and toward protecting our backsides, the competition eats us alive. So, I guess its not surprising that so many of the larger companies are shifting jobs overseas. After my introduction to your ADA, I'm going to send for some Mexico Chamber of Commerce literature myself. I asked Mr. Durman why I shouldn't fire my employees and take my small business to Mexico and his only response was that he thought I might sleep with a shotgun under my pillow. Mr. Smith, that might be a good trade. At least I'd be a free man in Mexico with a shotgun under my pillow rather than a puppet in a state-run society having to adhere to every idiotic rule coming out of Washington.
So my message to you is that you really screwed up.
01-01899 We need... desperately ...fewer, more well thought out laws. We particularly need fewer laws which help one sector of society at the cost of another sector. It is claimed that there are 43 million handicapped people in the United States. That must mean that everyone with an ear-ache qualifies as being handicapped. If you subtract the blind, deaf, and mentally handicapped, and count only those who require wheel-chairs... those who could use the extra-wide parking space I am supposed to provide... you come up with a figure substantially less than 10 million. Now that's a lot of people, but it is still only 1/25 th of our population. And for that, every business in every corner of our country suffers, becomes less competitive, and has more reason to send jobs overseas. More fundamentally, Mr. Smith, is the question of whether it is right to take a small group who "should" have access to anywhere they want to go and turn it into a "right" to access which then forces everyone else to give up some of their rights. Mr. Smith, that's simply not fair. My building is a private place of business. I do not invite the public. You have placed the perceived benefits of one small segment of society above mine. More importantly, you have placed their interests above the interests of business, and, ultimately above all other Americans. Mr. Durman sounded incredulous that I would vote for a Democrat. Mr. Smith, the way I see it, my choice is between two Democrats. So, while every bone in my body says your opponent shouldn't be in office, I have only a few tools to use to register my protest. One is this letter...and another is my vote. You have my letter. If you want my vote, and the vote of businessmen like me, you've somehow got to convince us that you are on our side. And right now, Mr. Smith you are not my friend.
Very truly yours, (b)(6) Bend, Oregon 97701 01-01900
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