NCD issues letter on Californias proposed Opportunity to

January 27, 2006



The Honorable Bill Lockyer, Attorney General

Office of the Attorney General

1300 "I" Street

P.O. Box 944255

Sacramento, CA 94244-2550



Dear Attorney Lockyer:



The National Council on Disability (NCD) is an independent federal
agency that makes recommendations to the President and Congress on
disability policy.  In this role, NCD is responsible for advising on the
implementation, impact and effectiveness of the Americans with
Disabilities Act (ADA).  NCD first proposed the concept of the ADA in
1986 and Congress relied on and acknowledged the influence of NCD, its
reports, and its testimony throughout the legislative process.  Since
passage of the ADA, NCD has remained actively involved in monitoring its
impact and advising federal entities on policy issues.



NCD is deeply concerned about California's proposed Opportunity to
Repair Act of 2006.  The Act proposes to require that an individual
alleging a business is inaccessible   provide written notice to the
business about the specific accessibility violation before bringing
suit, and extends the amount of time for a business to come into
compliance by as much as 262 days.  President George W. Bush declared
his opposition to similar federal legislation - the ADA Notification Act
- in an interview with Business Week Online.




Title III of the ADA was intended to balance the interests of small
businesses with the accessibility concerns of people with disabilities.
It is a myth that the ADA's requirements are too hard on small
businesses. The legislative history of the ADA is rife with concern
about the burden on small businesses and as a result, Title III does not
require any action with respect to existing buildings that would cause
an undue burden or that is not readily achievable.  The approach of the
ADA was not to exempt small businesses from the requirements of the
bill, but rather to tailor the requirements of the Act to take into
account the needs and resources of small businesses - to require what is
reasonable to require and not to impose obligations that are unrealistic
or debilitating to businesses. Each of the major sections and
requirements of the ADA takes into account the fact that some businesses
are very small local enterprises that may have very limited resources.
The following are some of the ways in which the provisions of the ADA
provide great deference for the characteristics and needs of small
businesses: the exemption for small employers; the undue hardship
limitation; the readily achievable limit on barrier removal in existing
public accommodations; the undue burden limitation regarding auxiliary
aids and services; and the elevator exception for small buildings, among
others.  NCD addresses this in its policy brief series, Righting the
ADA, found at

http://www.ncd.gov/newsroom/publications/03publications.html.



Businesses have had fifteen years to comply with the provisions of Title
III of the ADA.  The Department of Justice (DOJ), with the assistance of
the Internal Revenue Service, notified over six million businesses of
their ADA responsibilities each year for seven years and told them how
to obtain information on how to comply.  The DOJ established a toll-free
ADA Information Line in 1994 and it received more than 100,000 calls in
1999.  The DOJ also sent out approximately 500,000 copies of the ADA
Guide for Small Businesses.  It has published and distributed 40
technical assistance documents - all of which are available 24 hours a
day through DOJ's home page on the Internet.  The National Institute on
Disability and Rehabilitation Research has established regional centers
on the ADA to provide technical assistance to businesses. Clearly,
businesses have been given ample notice of this fifteen year-old
landmark law.  Any business that remains inaccessible at this date,
despite the availability of extensive free technical assistance, should
not be given extensions.



The argument that too many frivolous lawsuits have been brought by rogue
attorneys is disingenuous.  Frivolous lawsuits are barred by Federal
Rule of Civil Procedure 11.  Furthermore, the cost of complying with
accessibility requirements is far less than the cost of litigation.
Moreover, tax credits are available that offset many costs associated
with coming into compliance.  Many businesses have come into compliance
and now enjoy the patronage of customers with disabilities.  California
should reward the accessible businesses - not the businesses that choose
to risk the expense of litigation instead of making themselves
accessible.



The Opportunity to Repair Act would encourage businesses that have not
made themselves accessible, to do nothing until they get a letter of
notification - thereby undermining the provisions of the ADA that were
carefully constructed to phase in compliance as construction resources
permit.  No other civil rights law has a notice provision like this.



NCD recommends that California follow Congress' careful considerations
when it enacted the ADA - and not pass this unnecessary and detrimental
Amendment.



Sincerely,







Lex Frieden

Chairperson



Cc: Dr. Robert R. Davila, Ph.D.

      Chair, NCD's ADA Task Force











Mark S. Quigley

Director of Communications

National Council on Disability

1331 F Street, NW, Suite 850

Washington, DC 20004

202-272-2008