Samuel Lowenberg - Independent Journalist biography articles articles

Small firms slow to meet disabilities act standards

Chicago Tribune  October 31, 1993

Of all his struggles as a small-business owner, Michael Moody's toughest began when the TV cameras showed up at his Corpus Christi restaurant. In a news conference, Moody found himself accused of discriminating against the disabled.

He says the June confrontation was his first notification that he was being sued, accused of violating the Americans with Disabilities Act-specifically Title III. Title III requires that businesses and other public areas be made accessible to people with physical disabilities.

Moody, owner of Frank's Spaghetti House, settled the lawsuit in about a week for $3,000-less than $1,000 to put in a wheelchair ramp and make other modifications and more than $2,000 on lawyers, his and the ones who sued him. Twenty-two months after Title III of the law took effect, most small businesses are not in compliance with the federal law, say government officials, business leaders and disabled-rights groups. In addition, advocacy groups, and to a lesser extent, the government, have filed a flurry of suits against businesses and municipalities accused of non-compliance.

Though business groups complain that most small merchants don't understand the law or have never heard of it, advocates for the disabled say many businesses are refusing to make improvements until they're forced. None of the groups could supply numbers.

U.S. Atty. Gen. Janet Reno recently indicated that businesses have had long enough to make changes.

"We are earnest about our enforcement responsibilities, and we will take people to court when they thumb their nose at us," she said.

Title III took effect in stages and has applied to businesses with more than 25 employees and revenue of more than $1 million since January 1992. The smallest businesses, with 10 or fewer employees and revenues of less than $500,000, have been covered since January.

Eligible businesses can get a 50 percent tax credit for up to $10,250 in improvements.

At least one study concludes that compliance with Title III does not necessarily mean elaborate or costly changes.

Roughly 80 percent of the mandated corrections cost less than a total of $500, according to the Texas Governor's Committee on People with Disabilities. The changes often include wheelchair ramps, wider bathroom stalls and lower sinks, curb cuts and handicapped parking spaces.

Small-business leaders say that though the changes are inexpensive individually, they can quickly add up.

The major sticking point, say small-business leaders, is the law's ambiguity. A business must be made accessible if the improvement is "readily achievable, ... easily accomplishable and able to be carried out without much difficulty or expense" and does not cause "undue hardship."

Those generalities have left small businesses "waiting for somebody to tell them what to do," said David Pinkus of Small Business United, a Texas group with 4,000 members.

"The law is vague... The businessperson decides not to make an accommodation. He thinks he is complying," wrote Pinkus in a newspaper editorial.

Dallas Mayor Steve Bartlett, who helped formulate the legislation as a congressman, suggested that the problem was not with the law but with smallbusiness associations' negative response to any government regulation. John Wodatch, head of the Public Access Section of the U.S. Justice Department's Civil Rights Division, said the law was designed to be flexible. That is, the size of a business should determine what is a reasonable improvement.

"The statute was designed to give business owners choices. We'd rather have them spending their money on ramps than on lawyers," he said. But that flexibility in the law invites litigation, business leaders say. A business owner's idea of what is readily achievable can be different than a disabled person's, so business owners who think they are in compliance are vulnerable to lawsuits, says Caroline Steinbower, a spokeswoman for the National Federation of Independent Businesses.

Because the law is new, some of it will have to be defined in court, said lawyer Connie Cornell, who represented a client against Advocacy Inc., an Austin, Texas-based federally funded legal rights group for the disabled. "Until the lines are defined more clearly, there's always going to be a gray area. But you do what you can" to comply, she said.

For businesses that can't afford a lawsuit, the threat of one can be just as damaging, said Pinkus, adding that small businesses are forced to settle, regardless of whether the changes are readily achievable.

Disabled-rights groups can force changes and recover legal fees, but only the U.S. Justice Department can sue for civil penalties.

Officials at Advocacy complain that the federal enforcers are too slow to act. The Public Access Division of the U.S. Justice Department, with a dozen attorneys for the entire country, has filed only three lawsuits.

"Certainly, we are taxed to the fullest at this point," Wodatch said. Of 1,609 complaints under Title III, 1,197 are open for investigation, he said.

Wodatch says he has been told by business associations that many merchants see the law as "just another federal requirement" and are waiting until they receive a complaint before complying.

Moody thought his Corpus Christi restaurant was exempt from the law because of its size. If he had known the bad publicity and legal fees he was going to face, he gladly would have put in the ramp, slow-closing door, restroom modifications and handicapped parking space.

"Had I known that I had to comply, I would have, no problem," he said. "It would have been a lot cheaper."

Christopher Jonas, the Advocacy lawyer who sued Moody, said he received $300 from the lawsuit, about a third of his usual fee. The real reward for Jonas, who is disabled, occurred when he drove by Frank's Spaghetti House and saw the ramp out front.

"It looked really beautiful," he said.

By Sam Loewenberg, Dallas Morning News.