Barry Weintraub, Esq.

32 Hayes St., Stafford, VA 22556 Tel: 540-658-9980 Fax: 540-658-9981

bw@myadalawyer.com

[COMMENTS RE: DOCKET ID [DOJ-CRT-2008-0015]{.mark}]{.smallcaps}

[Nondiscrimination on the Basis of Disability by Public\
[Accommodations and in Commercial Facilities]{.mark}]{.smallcaps}

[]{.mark}

The U.S. Department of Justice plans to exempt "small businesses" from
having to remove architectural barriers ---even though removal of the
barriers is "readily achievable" --- under a newly proposed 36 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 means of avoidance. This so-called "safe harbor"
for "small businesses" actually exempts millions of public
accommodations in this country to allow discrimination against persons
with disabilities to continue. It is buried in the new ADAAG standards
for Title III of the ADA.

For example, a hotel, restaurant, or gas station is classified as a
small business if its annual revenue is less than \$6.5 million per
year. Over 90% of the hotels, restaurants and gas stations that are
independently owned or owned by a non-chain franchisee fall under this
exemption. Even "big restaurant chains," like McDonalds, are largely
franchise operations and your old McDonalds may avoid having to remove
architectural barriers that have already existed for more than 16 years.

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, over 30 retail stores with a DSW shoe
store, supermarket, 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. This, of course, is not a "small
business." 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. It
immediately justifies every --- what was previously untrue ---
accusation that the Act is vague and harmful to small businesses. This
proposed regulation defines nothing, it leaves small businesses open to
vague and 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 shopping
centers 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? Because
most public accommodations are found in shopping centers, there should
have been some consideration of this.

The second part that doesn't undertake to be defined is trying to count
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 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, there is a question as to whether there
will ever be any money for curb cuts, ramps and handrails under this
proposed regulation. I don't think so.

Next, if a shopping center puts in a number of ramps and depreciates
them over five years, what part of this cost is made a part of 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 new alterations and
additions from the undefined expenditures of this part? If an existing
shopping center, puts up a new Best Buy store, what part of those costs
should be 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?

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]{.underline}
at the following web addresses:]{.mark}

[]{.mark}

[[http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=090000648062a604]{.mark}](http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=090000648062a604)

[]{.mark}

[or at [http://www.regulations.gov](http://www.regulations.gov/)
for]{.mark}

[]{.mark}

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]{.underline}. Tell DOJ that the regulation is vague and will harm
persons with disabilities.

Submitted by,

/s/

Barry Weintraub

and

[Mr. Anthony J. Brady, Jr., Esq.]{.mark}

[1 Rose Avenue]{.mark}

[Maple Shade, NJ 08052]{.mark}

[(856) 662-5234]{.mark}