A Senate amendment specifically excluded from coverage several types of conditions or behaviors that would have had serious

consequences for business owners -- particularly pyromania and kleptomania. But how many more conditions that could endanger a business remain in the bill? And how many more cannot possibly be anticipated by a business owner? And how can a business owner be expected to know how to accommodate some of the lesser known disabilities when he/she has no concrete list to which to refer?

At the very least, a list of disabilities, with a layman's description of each disability, should be included in the bill. When necessary, it can be amended to add or delete disabilities as technology and research bring us closer to understanding and addressing various disabilities. Certainly, it will be difficult to compile a list of the 900 types of disabilities the proponents indicate are covered under the ADA bill. But without such a list to provide guidance, business owners will not know what is covered and will never be safe from the threat of litigation. And individuals with less well known disabilities will never know if they can expect accommodation.

Small Business Exemption

Small business owners are not specialists in disabilities, nor are they legal experts. Yet, the ADA bill, in its broad approach, demands the same level of awareness and responsiveness from them as it does on large businesses.

The drafters of the ADA bill recognized the problem small businesses will face in the employment section of the bill and included a small business exemption. However, an exemption was left out of the public accommodations section which affects patrons to the business. This makes no sense whatsoever. The employment section is no more burdensome than the accommodations section, leading one to conclude that an exemption is appropriate in both.

The bill does not provide specific parameters, only general definitions that are inadequate. No one has any idea of what the ADA bill will cost small businesses. No one has any idea of the specific types of disabilities covered by the bill. Clearly, a small business exemption for public accommodations, based upon the language on the employment section, is appropriate and necessary. It will remove the fear of litigation from the smallest of businesses who are least able to afford it.

Definition Questions in the ADA Bill

The business community fought long and hard to get clear

definitions of a number of terms that either appeared in the Rehabilitation Act or are new. Even so, some of these terms -- "readily achievable", "reasonable accommodation", and "undue hardship" -have not been adequately addressed.

To paraphrase Title I (the employment section), businesses must make reasonable accommodation unless it results in an undue hardship. Title III (the public accommodations section) requires

accommodation if it is readily achievable. Both of these standards pose serious threats to small businesses, even in their amended forms. Undue burden is defined as "an action requiring significant difficulty or expense. Readily achievable is defined as "easily accomplishable and able to be carried out without much difficulty or expense. This last term has never before been used in law.

Both of these standards are further refined to take into consideration (paraphrasing) the size of the business, the type of facilities, the size of the budget, the type of operation, and the cost of the accommodation. In addition, an amendment was added to the public accommodations section that "good faith efforts" by a business owner to comply with the law must be considered during a civil action against a business owner.

NFIB supports these hard-won clarifications. However, business owners will still never know if they have done what is necessary to avoid legal action since all of the above criteria are, like beauty, in the eye of the beholder. While a business owner may believe that modifications costing more than $500 or $2,000 or $5,000 would constitute an undue hardship, a court may feel differently.

A better solution would be a dollar or percentage-of-net-profit cap on what a business is expected to spend on structural alterations. physical alterations, and auxiliary aids and services. Such a cap would provide a type of safe harbor against lawsuits. This is particularly important for small, marginal, or failing businesses since the costs of going to court, even if the business owner eventually prevails.

can seriously affect the economic viability of the business before a

decision is rendered.

Access Incentives

Many businesses want to accommodate the disabled, both as employees and as patrons. While many small businesses provide access as they become more economically sound, the Federal government can aid directly in this process. According to the Senate floor debate, the Federal government spends roughly $70 billion in support payments to the disabled - clearly, a large amount of money.

Unfortunately, the only Federal assistance available to businesses to accommodate the disabled is a maximum $35,000 tax deduction that currently exists in the Internal Revenue Code to make structural

alterations. If this nation really wants to accommodate the disabled to the greatest extent possible, the cap should be lifted and the deduction should be expanded to cover physical alterations and auxiliary aids and services, as well as the currently covered structural alterations.

While an expanded deduction would be useful for profitable businesses, a tax credit is necessary for those businesses that do not make enough money to take advantage of a deduction. A small tax credit limited to small businesses would encourage greater access for the disabled and a cooperative, creative spirit among struggling businesses to serve disabled employees and patrons. Such an

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incentive is a better approach to increase accessibility than the punitive approach currently contained in the ADA bill.

Enforcement Provisions in Title III

While NFIB has serious problems with the requirements of the ADA bill, of no less concern is the enforcement scheme currently included in Title III. Unlike Title I, Title III (the public accommodations section) provides no administrative procedure to correct cases of discrimination.

If a disabled individual has a complaint, that individual can

attempt to receive injunctive relief (basically, correction of the situation), certain other costs, and attorney's fees. The case would be decided by a federal court.

If the Attorney General has reason to believe that a "pattern or practice" of resistance to compliance (more than one occurrence) has taken place, he can bring a civil action against a business owner. Penalties would include correction of the problem, civil penalties of up to $50,000 for the first violation and $100,000 for subsequent violations, monetary damages, and attorney's fees.

The judge can consider certain defenses on the part of the business owner, including cost of the modification, size of the business, and good faith efforts to comply. These are important defenses for small businesses, but they don't solve the basic problem. Even

relatively modest fines will have serious consequences for many small businesses.