| Number 2 | September 15, 1998 |
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This Week:
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Greetings, Here is the text of a disgusting commentary which appeared in the Star Tribune last week, followed by a response that I am submitting today for publication in the Strib. Take a look at it and, if you are so inclined, call the Star Tribune editorial page - 673-4823 - and tell them that you have seen this piece and encourage them to publish it. They tend to be reluctant to publish pieces critical of their regular columnists, so any calls will increase the chances of publication. If it is published, it would be a big boost to the morale of many people with disabilities and their friends, and might dampen the growing reaction against the ADA. ‘Til next week, Nygaard P.S. When I called last week to talk about this submission, I mentioned my desire to correct some factual errors in the original Kersten piece. The woman to whom I spoke expressed skepticism with the remark "This particular writer prides herself on her factual accuracy." Does anyone else see the humor there? |
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[by Katherine Kersten] [Published in the Star Tribune, Wednesday, September 9, 1998] [JN note: Interestingly, the headline in the Star Tribune newspaper (vs the electronic version you see here) reads: "ADA Regulatory overkill disabling businesses." Why such a crucial change in the electronic version?] On Aug. 27, Attorney General Hubert Humphrey III held a news conference at the State Capitol to announce a momentous event. A two-year investigation -- carried out by the Department of Justice and nine state attorneys general, including Humphrey -- had come to a triumphant end with an out-of-court settlement. What a sting it was! In the first joint nationwide investigation under the Americans with Disabilities Act (ADA), Humphrey et al. had caught Wendy's International -- that notorious scofflaw -- violating the law redhanded. The offense? (Drum roll.) According to Humphrey, the task force found most Wendy's restaurants had customer lines that were too narrow for wheelchairs. Now, Wendy's had certainly tried to comply with the ADA. According to news reports, its corporate-owned restaurants had typically bent over backwards to accommodate disabled customers, allowing them to cut to the front of the line in special wheelchair lanes. But this failed to satisfy the access police. According to Janet Reno, shunting people in wheelchairs around the line merely reinforces stereotypes about the disabled. Chastened, Wendy's agreed to widen or remove its customer lines and pay $50,000 to the task force. An exultant Humphrey pronounced the settlement a giant step forward. Reno added her hosannas: This is a terrific example of what federal and state law enforcement can do by working together. Come again? To hear these folks tell it, they are champions of the downtrodden -- fearless public servants protecting the little guy from victimization by callous or ignorant businesspeople. The truth is quite different. Thanks to people like Humphrey and Reno, a growing labyrinth of regulations -- federal ADA standards, interpreted and strengthened by state and local regs -- increasingly hobbles small to medium-sized businesspeople who try to enter the restaurant business and stay afloat once they get there. How burdensome are these regulations? To find out, I called a leading restaurant design consultant -- a high-priced expert intimately familiar with the mountain of handicap accessibility and health requirements that new restaurants must meet. The following scenario, he said, is an example of what unfolds in his office on a regular basis: A Lebanese immigrant who's had some success in business comes to the consultant's office with a good idea. He believes the Twin Cities needs a good Lebanese restaurant, and he's willing to invest his life savings -- fleshed out by loans from relatives -- to make his dream a reality. The man plans a modest facility in space he will rent from his cousin. Surprised that he needs a costly design consultant at all, his face falls as the litany of code requirements begins: He must put in an elevator to the employee break room in the basement, to accommodate potential handicapped food servers and prep people. Cost -- $50,000 to $60,000. Since a corner of the dining area has a recessed floor, he must build a wheelchair ramp there -- even though the rest of the restaurant is fully handicap accessible. (15 square feet vs. 4 square feet for steps). He'll have to reduce the number of tables he had planned, to ensure that wheelchair-bound servers and patrons have the wide aisles they need to maneuver. He'll have to double the size of the existing bathrooms, and lower the sinks, to accommodate wheelchairs. He must knock out walls to widen the employee locker room, so any handicapped servers can turn their wheelchairs there. Noting his client's stricken look, the consultant interrupts his list, admonishing him to count his blessings. In California or Arizona, he might have to pay for a large handicap-accessible kitchen -- complete with custom-built stoves and prep-tables like those designed for handicap apartments. (The result? Major expense, more steps for chefs, and greater difficulty serving food quickly and hot.) In Colorado -- if he planned a bar -- he might have to design one from which a disabled bartender could reach every glass and bottle from his wheelchair. Minnesota, of course, may eventually adopt similar rules. Head in hands, the Lebanese immigrant cries, "Stop! What's all this going to cost me?" Figure $200 a square foot, the consultant replies. Realistically, 10 to 15 percent of what you spend will go to making your restaurant handicap accessible. Calculating quickly, the immigrant exclaims, How can I afford this? I'll have to pay to rent, heat, air-condition and clean this handicap-related space -- and I can't even put tables there to help pay the bills. The restaurant business is notoriously competitive: Seventy-five percent of all new restaurants fail. As the aspiring restaurateur leaves, he mutters -- like more and more of his fellows -- "Why bother?" Whew! Compared with our Lebanese friend, it looks as if Wendy's got off easy. Humphrey and Co. are only making its restaurants widen or drop their customer lanes, right? But fast-food restaurants that use these lanes do so because research suggests they may produce faster service. Restaurants are highly integrated operations, designed to promote speed and efficiency. As a result, changes in customer lanes may also require changes in kitchen, cashier and food delivery systems. Unfortunately, government's coercive power is growing: Humphrey's staff has expanded from 321 in 1983, when he first took office, to 535 today. Humphrey's actions may inconvenience national chains like Wendy's, but Wendy's can absorb the costs and pass them on to consumers. It's the little guys -- the traditional keepers of the entrepreneurial flame -- who will give up and go home. Ironically, Humphrey may not even have the support of the disabled people in whose name he acts. The restaurant consultant I spoke with told me that -- while handicapped people want reasonable accessibility -- most are dismayed by regulations so burdensome they threaten people's ability to do business. Regulatory overkill is not a great step forward. It's a body blow to economic freedom and opportunity -- the foundation of America's unprecedented prosperity. Sadly, crusading government bureaucrats don't seem to care. Few of them know what it means to make a payroll, or scramble for a living in a intensely competitive marketplace. They are happy to saddle others with the cost and risk their utopian vision imposes, while reserving the self-congratulatory press conferences for themselves. [ Katherine Kersten is a director of the Center of the American Experiment in Minneapolis.] |
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[submitted to the Star Tribune on September 15, 1998] Many people with disabilities and their friends are overjoyed that the Americans with Disabilities Act (ADA) was signed into law by President George Bush in 1990. That's why so many of us were angered and dismayed by Katherine Kersten's September 9th Commentary entitled "ADA Regulatory overkill disabling businesses." By the use of emotionally-charged language, misleading associations, and just plain factual errors, this piece is certain to incite irrational opposition to the most important disability rights legislation in our nation's history. Ms. Kersten refers to ADA standards as a "labyrinth of regulations" enforced by "the access police," and states that they are "so burdensome" that they "threaten people's ability to do business." She makes the ADA sound downright un-American! Who could support such a law? She then gives a few examples of onerous regulations from Colorado, California, and Arizona which seem to back up her point, adding "Minnesota, of course, may eventually adopt similar rules." By asserting that it is state and local regulations that "interpret and strengthen" ADA standards, she implies that it's the ADA behind all this. The state and local regulations cited in the commentary may or may not be burdensome, but they have nothing to do with the ADA. The ADA is a federal civil rights statute, not a building code. Saying that Minnesota "may" adopt similar rules is irrelevant. The centerpiece of the column is a Lebanese immigrant who has had to give up his dream of starting a small restaurant after learning about the very costly "mountain of handicap accessibility requirements" that he would have to meet. The "restaurant design consultant" who gave him this information is never identified, and that's too bad. Any serious entrepreneur would want to avoid this person, since the advice given is so wildly inaccurate. The consultant launches into a "litany of [accessibility] code requirements" that our poor friend's "modest facility" will have to satisfy. They include: doubling the size of the existing bathrooms, knocking out walls to widen the employee locker room, putting in a ramp to a corner of his otherwise-accessible serving area, and installing a $50,000 elevator to the employee break room in the basement. To top it all off, he will have to reduce the number of tables he had planned, making it even harder to justify the costs. "Why bother?" he says, as his dream is shattered by the demands of a strident minority of people with disabilities. The consultant is apparently unaware of a very important phrase in the language of the ADA. That phrase is "readily achievable." Unless our Lebanese friend is planning a costly structural renovation (which doesn't seem to be the case), the ADA says that any modifications for accessibility he makes must be "readily achievable." And that means, in the words of the statute, "easily accomplishable and able to be carried out without much difficulty or expense" to the business. In the trade, this is called "cheap and easy." Obligations for employee accommodation under the ADA are triggered by a request from a qualified applicant or employee. The employer does not have to modify anything in anticipation of potential requests. So, unless this man is aware that he will be hiring some people who use wheelchairs, the locker room expansion is hypothetical, and may never be required. I asked an official from the U.S. Justice Department in charge of ADA enforcement about the elevator requirement, and she said, "A small restaurant would never be required to install an elevator." In fact, there is specific language in the ADA exempting any "facilities that are less than three stories or have less than 3,000 square feet" from having to install any elevators at any time unless they are part of a larger shopping mall, transportation terminal, or are a health care supplier. Bathrooms would not have to be "doubled" in size unless they were extraordinarily small to begin with and, again, any modification needed would have to be "readily achievable." Regarding that requirement for a ramp to a "corner" of the dining area: It ain't so. Under the ADA, if identical goods and services are available in other parts of the restaurant, there is no requirement to ramp such a space. ADA Title III regulations [36.304(f)] specifically state that "significant loss of selling or serving space" is not "readily achievable," and therefore could not be required. Finally, we don't know if that consultant mentioned the significant tax credits and deductions of up to $20,000 available for businesses to help ease the already low costs of making their spaces accessible. So the "mountain of handicap accessibility requirements" turns out to be a molehill. The real mountain is the mountain of misinformation conjured up and distributed by unethical or uninformed consultants such as the one cited in this commentary. It is irresponsible to set up a false conflict between small businesspeople and people with disabilities. There is no such conflict. The plain and simple intent of the ADA is to make the same opportunities available to people with disabilities as are available to able-bodied people who take them for granted. It's not a matter of "excessive regulation." It is a matter of civil rights. Jeff Nygaard, Minneapolis Editorial/Research Assistant, Access Press
newspaper The following people are also signers of this commentary:
Additional sources for information contained in this commentary include:
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