[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



                                                   S. Hrg. 102-000 deg.

            LITIGATING THE AMERICANS WITH DISABILITIES ACT
                                   

=======================================================================

                                HEARING

                               before the

      SUBCOMMITTEE ON RURAL ENTERPRISE, AGRICULTURE, & TECHNOLOGY

                                 of the

                      COMMITTEE ON SMALL BUSINESS
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                     WASHINGTON, DC, APRIL 8, 2003

                               __________

                            Serial No. 108-7

                               __________

         Printed for the use of the Committee on Small Business


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house


                                 ______

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                            WASHINGTON : 2003
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                      COMMITTEE ON SMALL BUSINESS

                 DONALD A. MANZULLO, Illinois, Chairman

ROSCOE BARTLETT, Maryland, Vice      NYDIA VELAZQUEZ, New York
Chairman                             JUANITA MILLENDER-McDONALD,
SUE KELLY, New York                    California
STEVE CHABOT, Ohio                   TOM UDALL, New Mexico
PATRICK J. TOOMEY, Pennsylvania      FRANK BALLANCE, North Carolina
JIM DeMINT, South Carolina           DONNA CHRISTENSEN, Virgin Islands
SAM GRAVES, Missouri                 DANNY DAVIS, Illinois
EDWARD SCHROCK, Virginia             CHARLES GONZALEZ, Texas
TODD AKIN, Missouri                  GRACE NAPOLITANO, California
SHELLEY MOORE CAPITO, West Virginia  ANIBAL ACEVEDO-VILA, Puerto Rico
BILL SHUSTER, Pennsylvania           ED CASE, Hawaii
MARILYN MUSGRAVE, Colorado           MADELEINE BORDALLO, Guam
TRENT FRANKS, Arizona                DENISE MAJETTE, Georgia
JIM GERLACH, Pennsylvania            JIM MARSHALL, Georgia
JEB BRADLEY, New Hampshire           MICHAEL MICHAUD, Maine
BOB BEAUPREZ, Colorado               LINDA SANCHEZ, California
CHRIS CHOCOLA, Indiana               ENI FALEOMAVAEGA, American Samoa
STEVE KING, Iowa                     BRAD MILLER, North Carolina
THADDEUS McCOTTER, Michigan

         J. Matthew Szymanski, Chief of Staff and Chief Counsel

                     Phil Eskeland, Policy Director

                  Michael Day, Minority Staff Director

                                  (ii)
?

                            C O N T E N T S

                              ----------                              

                               Witnesses

                                                                   Page
Foley, Hon. Mark, U.S. House of Representatives..................     4
Richard, Ron, The Bowling Proprietors Association of America.....    11
Fleckenstein, Robert, Associated Builders and Contractors, Inc...    13
Flanagan, Brendan, National Restaurant Association...............    15
Maher, Kevin, American Hotel and Lodging Association.............    17
Rattner, Dr. Steven, DDS, P.A. and Associates....................    19
Garber, John E., Garber & Associates, LLC........................    21

                                Appendix

Opening statements:
    Graves, Hon. Sam.............................................    36
    Ballance, Hon. Frank.........................................    38
    Christensen, Hon. Donna M....................................    41
Prepared statements:
    Foley, Hon. Mark.............................................    42
    Richard, Ron.................................................    45
    Fleckenstein, Robert.........................................    51
    Flanagan, Brendan............................................    56
    Maher, Kevin.................................................    60
    Rattner, Dr. Steven, DDS.....................................    65
    Garber, John E...............................................    67
    Hughes, Patrick..............................................    71
    Schwartz, Gregory E..........................................    73
    Shotz, Frederick A...........................................    75

                                 (iii)

 
             LITIGATING THE AMERICANS WITH DISABILITIES ACT

                              ----------                              


                         TUESDAY, APRIL 8, 2003

                  House of Representatives,
 Subcommittee on Rural Enterprise, Agriculture and 
                                         Technology
                                Committee on Small Business
                                                   Washington, D.C.
    The Subcommittee met, pursuant to call, at 2:06 p.m. in 
Room 2172, Rayburn House Office Building, Hon. Sam Graves 
[chairman of the Subcommittee] presiding.
    Present: Representatives Graves, Ballance, Shuster, 
Christensen, Case, and Foley.
    Chairman Graves. We will call this hearing to order, and I 
would like thank everybody for being here today and welcome 
everyone. This is the first hearing of the 108th Congress for 
the Rural Enterprise, Agriculture and Technology Subcommittee 
of the House Committee on Small Business, and like other 
members of the Committee, I share a passion for the advance of 
small business across the country.
    The future of this Subcommittee is what we, as I see it at 
least, what we as the members of the Committee make of it. In 
the upcoming months this Subcommittee is going to address a 
variety of issues as they pertain to small business, including 
agriculture, telecommunications and education.
    Although the ADA has brought about some improvements, today 
we are here to shed some light on a very pressing issue, 
written in very broad, general terms the implementation of the 
Americans with Disabilities Act has opened small countless 
businesses to excessive litigation. It has been estimated that 
95 percent of the Title I cases brought under ADA have been 
decided for the employer regardless on the average it costs 
small businesses nearly $25,000 a piece just to try a case.
    Currently, the Supreme Court has decided to hear Raytheon 
v. Hernandez, and in this case Mr. Hernandez was allowed to 
resign from Raytheon instead of being fired for illegal drug 
use and breaking workplace rules. After rehabilitation Mr. 
Hernandez has demanded his job back, saying that he has a 
automatic right to a second chance because of ADA protections.
    In another case the employees of Exxon filed an ADA 
complaint with the EEOC because in the aftermath of the Exxon 
Valdez tragedy the company implemented a policy that anyone who 
has undergone substance abuse treatment could not captain a 
ship. The Fifth Circuit Court found for Exxon and upheld their 
policy.
    Title III of ADA has become a quagmire of frivolous 
litigation like that, for minor infractions, particularly of 
ADA building regulations. Most of the businesses that are 
targeted are mom and pop businesses that believe themselves to 
be fully in compliance with ADA, but who cannot sustain the 
expensive legal costs.
    The Americans with Disabilities Act does not allow 
plaintiffs to receive damages whatsoever. The only money 
changing hands is continued collection of legal fees at small 
businesses expense.
    I would now like to recognize the ranking member, Frank 
Ballance, and express my excitement to work with you on this 
Subcommittee, and I appreciate very much being a part of this.
    [Mr. Graves' statement may be found in the appendix.]
    Mr. Ballance. Thank you, Mr. Chairman, and greetings.
    The purpose of today's hearing will be to review the effect 
of litigation of the Americans with Disabilities Act on small 
businesses, and to discuss the ADA Notification Act introduced 
by Representative Foley.
    Mr. Chairman, as you know or you may know, I practiced law 
for more than 35 years before being elected to Congress, and I 
strongly believe that attorneys not only have a responsibility 
to defend the law of the American system of justice, but they 
also have a responsibility to ensure that they are implemented 
in a fair and just manner.
    With that in mind, the ADA is landmark legislation that was 
enacted in 1990 to provide protection to individuals with 
disabilities when facing discrimination in employment, 
transportation and public services, and accommodations.
    By expanding community access, career opportunities and 
financial self-sufficiency, the ADA has helped the disabled 
community make enormous strides in establishing independence. 
Our nation has also greatly benefited from the ADA, as 
previously untapped skills and talents of disabled Americans 
are put to good use.
    Therefore, any changes to the law should be made only in 
egregious situations, and should ensure that ADA safeguards and 
benefits are not harmed.
    The ADA was intended to balance the accessibility needs of 
the disabled community with interests of businesses--
particularly taking into account the limited resources of many 
small businesses. New and newly reconstructed businesses must 
be accessible. However, modifications are required to existing 
buildings that are only readily achievable, which is defined as 
`easily accomplished and able to be carried out without much 
difficulty or expense.`
    In addition, there is an annual tax deduction of up to 
$15,000 for all businesses and tax credits of up to $5,000 
annually specifically for small businesses for costs associated 
with ADA compliance.
    The ADA includes numerous safeguards to ensure that 
businesses have adequate notice of their obligations and ample 
time to comply with the law. Following the enactment of the 
ADA, the IRS notified each year for seven years, over 6 million 
businesses of their ADA responsibilities. States include 
information on the ADA requirements with all new business 
license and renewals.
    The ADA established an unprecedented technical assistance 
program. Educational packets were sent to approximately 6,000 
Chambers of Commerce, and placed in 15,000 public libraries. 
Extensive material is available online including the EEOC's ADA 
Small Business Primer. There is a toll free hotline, a fax on 
demand system, and free small business workshops.
    The Justice Department has provided funding to trade 
organizations to develop and distribute industry-specific 
guides to their members. Most recently, on February 4, the EEOC 
offered a National Satellite Technical Assistance Seminar. This 
interactive television broadcast provided ADA information to 
small and mid-sized businesses at over 65 businesses 
nationwide.
    This outreach has worked. According to the Department of 
Justice, which oversees ADA enforcement. There has been a 
surprisingly small number of lawsuits. The fact that there were 
only 650 ADA lawsuits over five years, that is 130 per year 
according to my math, when compared to 6 million businesses, 
666,000 public and private employers, and 80,000 state and 
local governments that comply with the ADA, this certainly 
speaks volumes.
    However, we are not here today because everything is 
working fine with small business compliance with ADA. As has 
been widely reported in the media, there have been a rash of 
ADA lawsuits by a handful of attorneys in Florida, and a few 
other communities. I am sure we will hear a lot today about 
these actions and the tactics employed in pursuing them.
    The question I have is whether this is a symptomatic 
problem requiring Congressional relief, or an isolated 
situation involving a few lawyers that would be better dealt 
with by the courts or local bar associations.
    And Mr. Chairman, I will stop at that point.
    [Mr. Ballance's statement may be found in the appendix.]
    Chairman Graves. Thanks Mr. Ballance.
    Mr. Shuster.
    Mr. Shuster. Thank you, Mr. Chairman. I would like to thank 
Mr. Foley for him bringing this piece of legislation before us. 
As a small business owner, I have great concern when the 
federal government, the Congress creates laws that because they 
are vague causes confusion and allows for some attorneys out 
there to abuse them. I think there are many cases across this 
country where people have been taken to court because of not 
understanding what they were supposed to do, or not getting in 
compliance as quickly as the attorneys thought they should, but 
I know people are out there making good faith efforts to 
correct the problems.
    Again, this is not about eliminating this law; it is about 
making corrections to it, and I even know that there is cases 
out there where this law can be applied to people who have drug 
and alcohol addictions. And as a small business owner, there 
were cases where I had employees that I went to great lengths 
to try to help, help them with their problems, and to find out 
that it is the potential for somebody to come back and sue you 
after you have spent time and effort trying to help them is 
just wrong. It is not what this law was set up to do.
    So again, I just thank Congressman Foley for bringing this 
legislation to us, and look forward to hearing your testimony.
    I yield back my time.
    Chairman Graves. Thank you, Mr. Shuster.
    At this time I would like to welcome our first witness on 
our first panel at least, Congressman Mark Foley who is a five-
term congressman from Florida, and he has introduced H.R. 728, 
the ADA Notification Act, and what it would do is basically 
allow businesses a 90-day grace period to correct deficiencies 
and become ADA compliant before a civil lawsuit can be filed.
    Representative Foley, I will go ahead and let you explain.

STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF FLORIDA.

    Mr. Foley. Thank you very much, Mr. Chairman, Mr. Ballance 
and Mr. Shuster for giving me the opportunity to testify on 
H.R. 728.
    Let me first mention I was a small business owner myself, 
and I also have worked very tirelessly in the areas of 
disability. I was chairman of Gulf Stream Goodwill Industries.
    Let me also note for the record that in 2000, there were 
3,013 suit the Justice Department was tracking, 3,085 in 2001 
alone.
    If we have done such a good job as a federal government 
informing the small business community of the requirements of 
the ADA, then we must not have good enough job to the very 
people in this room that have helped pass the ADA. This door, 
for instance, is not compliant with the Americans with 
Disabilities Act. A round knob is not compliant. Yet we passed 
the law and assume every small business will find the necessary 
information to comply with this important law.
    Back in 1978, as a Lakeworth commissioner, I led the drive 
to make our library user friendly for those disabled. We had a 
multiple stairs in a very historic building. A good friend of 
mine who had been confined to a wheelchair since birth came to 
me and said it is not fair that our citizens not be able to 
read from the same books you and I take for granted.
    So we modified a historic building to make it ADA or at 
least at that time it was not required, we made it compliant 
for those with disability.
    So I have had a history of working for people with 
disabilities, but I must say this law has provided unintended 
consequences.
    Now, most small businesses when they apply for a business 
license or a certificate of occupancy assume they are being 
told all the rules, regulations, both federal, state and local. 
And when they receive that piece of paper they would assume 
they are in full compliance with the laws required of this 
land.
    Regrettably, we have done a very poor job of federal 
government enforcing, informing and educating those small 
businesses as to the requirement.
    Now, what troubles me more is that in a recent series of 
litigation California they had to go to my home town of Stuart, 
Florida to find a lawyer to take the case. Numbers of suits 
filed in Carmel, California just recently by a Stuart attorney 
on behalf of a firm or group called Access Now, Inc. from 
Miami.
    It is ironic that a group that advocates for the disabled 
had to find a group in Florida to press the case in Carmel, 
California, 3,000 miles away, using an attorney based in 
Florida.
    I have written testimony, and I would probably be better 
off spending time talking about that testimony, but having done 
a lot of research and a lot of inquiry into this practice, what 
is more troubling than anything else is the very attorneys that 
bring these cases, the very attorneys that bring these case 
fail to even go back and check whether the work was ever done.
    When some of the business owners who have been confronted 
by these letters alleging deficiencies and claiming they are 
being sued joyfully once they are made known of the 
deficiencies fix them with minimal or small dollars. Ask the 
attorneys to come by and look at the improvements. Oftentimes 
the attorneys have said, we do not want to look at the 
improvements, we just want our check.
    One of the lead attorneys in Florida was investigated by 
the Sun Sentinel. Woe is us when they looked at his own 
business location, he had none of the requirements of the ADA.
    Paul Ryan, who filed thousands of suits in California, 
including suing actor Clint Eastwood, who testified here on 
Congress on this very bill, himself gave a seminar at the 
gathering the Association of Trial Lawyers of America. The name 
of his lecture was ``Opportunities for Public Interest Work and 
For Attorneys' Fees.'' Ryan himself was later sued by the head 
of the Oakland-based Americans with Disability Advocates who 
said that the restroom facilities in Mr. Ryan's office were not 
ADA compliant.
    They are suing others but yet they are not in compliance 
themselves, and this has been a repeated, a repeated series of 
issues.
    The ADA is a phenomenal law. I do not take away from that. 
The ADA has provided access, and yes, there are those in our 
society who have failed when properly notified to improve the 
conditions of their places, and those people should be brought 
to trial. Those people should be sued. But if they are unaware 
of this problem and if it is brought to their attention, and 
for a few hundred dollars they can make the necessary 
corrections, why on God's earth do we need to have them levied 
a $5,000 or $10,000 legal bill?
    Two people who came to testify before the Committees last 
year, Donna and David Batelin have been my friends since my 
earliest days in politics. Donna and David Batelin opened a 
store in Lakeworth, Access Mobility, which provided handicap 
equipment for vans, for homes, for businesses.
    Because they are both in wheelchairs, they decided that 
every space in their lot would be handicapped equipped in size 
and scope. What they chose not to do is paint it with the blue 
indicia of the handicap label because they felt that since 
everyone coming to their business was disabled there was no 
need to call special attention to two spaces as required by law 
since every space they had was compliant with the law.
    Well, during a slew of drive-by litigations by this same 
law firm in Miami, they were told they were being sued because 
they did not provide two blue painted spots in their lot. 
Realizing maybe technically they were in violation, they 
immediately hired somebody for $200 to paint the blue spaces. 
They get a bill from the attorneys for $2,000.
    Now, I understand we need lawyers to help ensure that the 
law is carried out, but much like a city, as I was a city 
commissioner, if you have a code violation, you are given time 
to correct the deficiency before they start dunning you a daily 
fee for noncompliance. If you are pulled over driving, 
speeding, you have a chance to present yourself, and you are 
not immediately hauled off to jail simply because you exceeded 
the law. You are given due process and due right.
    Only in this bill did we fail to provide some remedy that 
balances the rights of both parties. Yes, I appreciate the fact 
that those in the disabled community tell me that these 
businesses have had 12 years to comply. Yes, I respect and 
appreciate that they have had 12 years to comply. Then that 
begs the question why the very people who designed this law 
cannot get our acts together and fix the doors in our own 
building. If it is so good for small businesses that are going 
to week to week struggling to make ends meet, how is it fair 
that we who print money by the barrel and print it in deficit 
form cannot fix a door for the disabled to get into a building 
or a room?
    That is the question that begs answering.
    Mr. Ballance, I have tried to go to the Florida Bar. I 
first called Attorney General Reno, who was from Florida, when 
she was Attorney General for Mr. Clinton, and asked her to 
inquire as to the conduct of some lawyers. They told me, sorry, 
we cannot and do not keep statistics on that even though we are 
required to enforce the law. Check with your Florida Bar. We 
checked with the Florida Bar, and got a similar response. Not 
every lawyer practicing in ADA compliance is bad nor is every 
business owner who is not in compliance. What my bill would 
simply do is give a 90-day period in which to make the 
corrections before they have to pay onerous lawsuits. To some 
of these small businesses, it is the difference between keeping 
the lights on or going out of business.
    I would much prefer, as I am sure every member of this 
Committee, that if they were given a choice between a $5,000 
legal bill and a $200 paint striping project, where would you 
rather see the money go? To help make that business compliance, 
or to watch them shutter their doors because they cannot simply 
afford to pay that $5,000 bill? Of course, the lawyers offer a 
discount if you pay within 48 hours.
    The other point I want to make is those who have challenged 
the law because they were offered a settlement go to the court, 
and the court says, well, we will reduce the charge to $2500, 
but by this time you have now engaged your own lawyers. Case 
law has been on our side, Buckhannon Board and Care Home v. 
West Virginia. The courts have ruled substantially that there 
needs to be some remedy within this law to give some guidance.
    I have met with disability groups urging them to negotiate, 
to discuss with some of our own colleagues to no avail. People 
do not want the law touched, and I understand why. They are 
worried that if Congress opens the ADA, will we open it up to 
destroy it. And I have assured every group my intention here is 
not to weaken the provisions of ADA but to make them fair and 
balanced.
    I have offered to make certain that we bring it on special 
order so that we do not have any ways in which to change the 
rules, only simply look at this provision.
    I am willing to listen to this Committee's guidance on this 
issue. This has been a five-year effort on my behalf, and it 
started after some 300 paper lawsuits were filed one day. One 
particular instance was quite interesting because it was a 17-
year-old girl who sued a liquor store, a pawn shop, a swimming 
pool company, all in the same shopping center, all on the same 
day. None of the merchants remembered her coming.
    Some wondered why she was going to a liquor store since she 
was under the required age of 21. When they investigated the 
child's home they found she had no pool, so they did not 
understand why she would be in a pool supply company to begin 
with. And the final one was the pawn shop, which they had no 
explanation for why she would be going there either.
    So in these cases we have seen repeated efforts by some to 
use those who have disabilities, to put the hammer down on 
small businesses who are only trying to what they thought was 
part of their responsibility.
    Had the cities not granted occupational license and 
building permits and certificates of occupancy, I would 
understand that these people may have gone afoul of the law 
intentionally. But in virtually every case I have looked at the 
person owning the business has tried their best to comply with 
all of the mandates of law. Simply unaware, it may be no 
excuse, but until we get our acts together and until we get our 
Justice Department, until we get our communities informed of 
the requirements of the ADA in a more expeditious fashion, 
until we provide the funds to local building officials so they 
can train and teach their own inspectors in the field what is 
required, then how can we stand by and allow people to be sued 
under a law that is well intended, but poorly crafted?
    None of us in life would trade places with those who have a 
disability. We in life who have struggled to make their lives 
better find some flaws with this law that need to be corrected. 
In no case and in no instance am I trying to make their access 
or their lives more difficult.
    So I stand here ready today as I have been for five years 
to find common ground. But if you look at the compendium of 
evidence, if you look at case law, if you look at some of the 
stories, including the last, and I will stop: Last July a man 
who used a wheelchair used the Americans with Disabilities Act 
to sue a strip club in West Palm Beach, Florida because he 
could not get a personal lap dance from the private strippers. 
The room typically used for lap dances apparently could only be 
reached by stairs. He also complained that the club violated 
his ADA rights because he could only enjoy a--he could not 
enjoy a good view of the stage.
    Now, I am not sure that is what we had in mind when we did 
the ADA, nor do I care what he does in his personal life. But 
in these particular cases cited, and I can provide multiple 
cases, it seems to not be the intention to make remedy, but to 
make money, and therein lies the fault of the law.
    Thank you, Mr. Chairman.
    [Mr. Foley's statement may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Foley, and your point is 
very well taken. This hearing is not an effort to in any way 
harm the Americans with Disabilities Act. It is simply an 
effort to find out if we can find a way to enforce ADA without 
the excessive frivolous litigation that is so rampant in the 
system.
    We are going to go with questions now, which I do have a 
question right off the bat. Of the lawsuits being filed against 
businesses, is it a random process, or do you see any effort, 
organized effort, and is this something across the country too? 
Is it an organized effort to file these lawsuits?
    Mr. Foley. Well, I think from the evidence gathered by the 
U.S. Department of Justice, it seems to be somewhat organized 
because it started very aggressively in Florida, California, 
and Hawaii. In fact, interestingly enough, my co-sponsor in the 
Senate is none other than Senator Daniel Inouye, at least he 
had filed it last year for us, a disabled American lost his arm 
in World War II, was one of the authors of the ADA, he found in 
his own state egregious behavior of lawyers.
    In California, there are 512 non-employment ADA cases, 31 
employment cases. In Florida, where most of the activity has 
started, and as you can see spreading from some Florida-based 
firms, we had 1,027 non-employment cases, 153 employment cases.
    These are just numbers though of those that actually went 
to trial. Regrettably, oftentimes the ones you do not hear 
about are the ones that are settled quickly because of the fear 
of publication of their name. So I think these numbers pale in 
comparison to the true amount that is going on.
    I mentioned the American Bar Association's seminar on 
teaching people how to profit from the ADA. It seems to me that 
there is an organized effort to utilize the law not for its 
intended purposes, but to seek monetary compensation.
    Chairman Graves. Mr. Ballance.
    Mr. Ballance. Thank you, Mr. Chairman, and Mr. Foley, thank 
you.
    I have in my own experience come across some situations 
that sometimes you think may be a burden, but when you get to 
the end of the row you realize that compliance is what is 
necessary.
    Now, I am not in favor of frivolity anywhere and there are 
some lawyers that we know who will take advantage of a 
situation. I do not understand though, and maybe you can help 
me out, how it is that these frivolous lawsuits--in North 
Carolina, we have a rule known as Rule 11, and if a lawyer 
files a frivolous lawsuit, he is sanctioned by the court, and 
required to pay the court costs. I do not know how they get 
away with frivolous lawsuits in Florida, and I do have a friend 
down there that I can call, Willy Garen, maybe you can help me 
out.
    Mr. Foley. I know Willy.
    Mr. Ballance. But tell me about what you think about that.
    Mr. Foley. Well, they are not frivolous in the sense of 
they are legal, and that is a question we posed to the bar and 
to the Justice Department, because the way the law is written, 
because of the vagueness of the law, that they are not 
considered frivolous. That may be my terminology and people may 
not appreciate the frivolousness of the lawsuit. But when you 
have investigated so many of these cases and found that they 
are merely looking for the money, when they will not even come 
and check if you have made true compliance. That seems to me to 
be--it should be about achieving the goal, not just achieving 
the paycheck.
    So maybe my frivolous terminology would not hold up to the 
bar.
    Mr. Ballance. Mr. Chairman, I think--if I can cut in, I 
think the blue line lawsuit would be frivolous, and I do not 
see how a judge would award an attorney's fee in a case like 
that, and he could not under the Buckhannon case, do you agree?
    Mr. Foley. I would agree. I would agree. But the problem is 
you have to get to court to prove yourself. I mean, the 
Buckhannon said basically if a business is issued for ADA 
violation, but voluntarily fixes these violations before the 
court becomes actively involved in the case, you would not owe 
any legal fees.
    Mr. Ballance. Right.
    Mr. Foley. But who knows that? The problem is you 
automatically have to retain a lawyer in order to fight the 
charges. If you get to go to court, you probably have spent 
$8,000 or $10,000 in defending yourself, whereby if we gave a 
90-day provision to correct before they would go to court, you 
would remedy that exact same situation.
    I mean, I am certain as I sit here that the attorneys 
filing these cases are not handing out Buckhannon Board versus 
in order to fully enlighten the prospective defendant of the 
court's rulings in these cases.
    If you do get to court, I think a lot of them--in fact, 
several cases in Florida where the larger corporations have 
chosen to defend themselves show up at court only to be found 
sitting alone because the plaintiff realizes they could not 
fight the court based on these prior decisions. They were just 
hoping for a settlement out of court, to send a check along the 
way, proceeds to be distributed who knows how. Therein lies the 
problem.
    It is not that I am trying to protect these businesses that 
are in noncompliance. It is just trying to find a balance.
    Mr. Ballance. Well, I have, Mr. Chairman, if I may 
continue. Let me know when my time expires. I have a similar 
interest. I mean, I consider myself a small businessperson. I 
was a lawyer in rural North Carolina, and I had to have an 
handicap access ramp at my office. And so I am concerned about 
small businesspeople, believe me, on that. But I cannot believe 
that--by the way, did the blue line lawsuit defendant have to 
pay those $2,000?
    Mr. Foley. Yes.
    Mr. Ballance. Well, I do not know what the judges in 
Florida are doing, but I do not think the judges in North 
Carolina would allow that to----.
    Mr. Foley. Let me correct, because it did not get to trial. 
They had sent in their money because they did not want to fight 
the case. They decided, all right, technically we are probably 
in violation. You used me now. For me to get a lawyer it is 
going to cost me $5,000.
    Mr. Ballance. Okay.
    Mr. Foley. Now I have spent $7,000. So there is a point 
where some of these businesses just throw up their hands and 
either settle quickly so they do not or are not exposed to 
media portrayals of them being mean-spirited.
    Mr. Ballance. Let me follow up. Your numbers and mine are 
vastly different. I think I said there was 650 lawsuits over 
five years, and your figures sound like 3,000 in one year. Are 
we talking about the same kind of case?
    Mr. Foley. These are the cases that we have from the U.S. 
Department of Justice, and these are the both ADA non-
employment cases, that would be an access issue; or an ADA 
employment case where somebody was fired for the wrong reasons, 
because of disability.
    Mr. Ballance. Well, Mr. Chairman, I am going to have 
counsel reconcile those figures, because the information I 
received came from our staff, that there were 650 cases, and 
this is a vast difference, and I would like to know which 
figures are correct.
    Mr. Foley. Well, I think if you get this 2002 and 2003 
figures, they are even going to be more startling because, 
again, this is growing exponentially, and I have all of this 
for the record that I would like to make a part with the 
Chair's consent.
    Chairman Graves. Yes. In fact, I want to make sure that all 
of the members' statements are adopted in the record too.
    Mr. Shuster.
    Mr. Shuster. Again, I just want to thank Mr. Foley for 
introducing this legislation, and I agree with your motivation. 
It is not to eliminate or significantly change the ADA laws; it 
is to improve it, knock out the abuses.
    I know firsthand my grandmother was confined to a 
wheelchair, and I remember taking that wheelchair through doors 
that were barely big enough to get them through, and up and 
down stairs, and that was 30 years ago, and there has been vast 
improvement, and it is largely due to the ADA legislation. So 
what we need to do here is strengthen it, and I think that is 
what your bill does.
    My question to you is, do you think that 90 days is long 
enough for that period, because of the fact that we are going 
to have some significant design and construction on some 
buildings? I know it is probably not the vast majority of them. 
But what is your thoughts on that?
    Mr. Foley. Well, we thought about that, and we carefully 
wanted to decide how we constructed the law. Would that mean 
substantial compliance? Because you do not want to give people 
more of a window to just simply avoid the law.
    I was hard-pressed to get 90 days, believe me. They did not 
want more than 15. But when Senator Inouye became the prime 
sponsor in the Senate, the disability groups came, can we 
negotiate the number.
    I am willing to look at any and all of those circumstances, 
but I do think you have to say substantial compliance, because 
as you clearly point out, if I am a business owner that needs 
to make quite a remedy here, that requires a permit. I have to 
get an architect to draw plans. They have to submit plans to 
building officials for review. They have to then get a building 
permit issued. Then you have to not only begin construction, 
which would include possibly getting bids. Then to the 
commencement of construction. Then to inspections. Then to CO, 
which could be a period anywhere from 120 days to 200 and 
whatever.
    But as long as somebody was making a genuine attempt and 
could document that the city was in fact pursuing and following 
up on the completion, then I think that would be reasonable.
    But my point is within that 90-day window they best 
demonstrate a commitment to replace, repair, fix or remedy or 
let the suits begin, therein lies the answer. If after 91 days 
they have not even budged, have at it. Take them to court. Do 
what you need to do.
    Mr. Shuster. Thank you very much. Yield back.
    Chairman Graves. Any other questions, Mr. Ballance?
    Mr. Ballance. Well, I do have one other question. In your 
bill, does it cover employment issues?
    Mr. Foley. We are only talking access issues. This is 
where----.
    Mr. Ballance. Does the ADA cover employment issues?
    Mr. Foley. Yes, it does.
    Mr. Ballance. Okay.
    Mr. Foley. Yes, it does.
    Chairman Graves. Thank you. Mr. Foley, thank you again, a 
point well taken too that if we cannot have the capital ADA 
compliant, how are small businesses supposed to know if they 
are in compliance. But I appreciate your testimony.
    Now we will seat the second panel.
    Mr. Ballance. Thank you very much.
    Mr. Foley. Thank you, Mr. Chairman. Thank you, members.
    Chairman Graves. All right, we will go ahead and get 
started with the second panel. What I am going to ask is since 
we have so many testifying that we limit testimony to five 
minutes. Then we will limit our question too. And I will 
explain the light system real quick.
    On the five minutes you have a green light, and then the 
yellow light will come on at four minutes, which leaves you 
about a minute left before the red light comes on after that. 
We are not going to rush anybody off and remove them if you go 
over a little bit, but let us try to get through this in a 
timely manner. We will try to limit it to five minutes.
    And the way I am going to introduce the panelists is by how 
they came into us, that testimony came into us, and we are 
going to start out with Ron Richard.
    Ron is a Missouri state representative, and he is owner an 
operator of Carl Richard Bowling Center in Joplin, Missouri, 
and I appreciate, Ron, you being here today and traveling so 
far to be with us. Why do you not go ahead and get started.

  STATEMENT OF HON. RON RICHARD, A REPRESENTATIVE IN CONGRESS 
 FROM THE STATE OF MISSOURI, CARL RICHARD BOWLING CENTERS, THE 
           BOWLING PROPRIETORS ASSOCIATION OF AMERICA

    Mr. Richard. Thank you, Mr. Chairman, and members of the 
Committee, Representatives, I appreciate your time.
    Chairman Graves. Go ahead and use the microphone there.
    Mr. Richard. My name is Ron Richard, and for 60 years my 
family has owned and operated as many as five bowling centers 
in the State of Missouri and Arkansas. Also, I was recently 
elected to serve as the representative of the Missouri General 
Assembly. I am testifying in support of H.R. 728, the ADA 
Notification Act, as both a business owner and a lawmaker.
    Legitimate businesspeople want to comply with federal and 
state regulations. In the case of bowling centers, we are in 
the business of providing hospitality, enjoyment and 
entertainment to our communities, and want to extend to all 
members of our community, including the disabled.
    I know that many bowling proprietors have already worked to 
become compliant with the provisions of ADA. Many who have 
already completed significant capital improvements to make sure 
that entrance ways provided the appropriate access, renovated 
restrooms so that they are complaints, and made other 
adjustments to their bowling centers that would help all 
customers enjoy our establishments.
    However, despite their efforts, bowling centers and other 
retail businesses have been, in many cases and systematically, 
targeted for a quick buck. In Florida, one group of lawyers was 
responsible for 700 lawsuits against businesses across the 
state. And as the gentleman, the representative's comment a 
second go, that quote is from an article in the Tampa Tribune, 
23 October 2001.
    A Web site for a local activist group in the state on a 
lookout for new plaintiff reads: ``If you use or have used the 
services of any of the hospitals in your area, you could 
conceivably be a plaintiff in one of our hospital cases. In 
addition, you could conceivably be a plaintiff in any hospital 
to which you would most likely be taken in case of the 911 
call. If you shop in any department store or regional or 
national chain store, or if you frequent fast-food stores, or 
if you attend movie theaters, if you stay in a hotel or motel, 
if you like to take cruises, etcetera, etcetera, you could 
conceivably be a plaintiff. The possibilities are almost 
endless, as unfortunately, there are so many places which are 
not obeying the ADA laws and which are therefore creating a 
variety of inaccessibility problems for lots of people.''
    In California, a former repeat felon, imprisoned for 
numerous crimes of robbery and grad theft, has been responsible 
for hundreds of lawsuits against everything from banks to 
bowling centers, and now wineries, filing what you have heard 
others speakers refer to as ``drive-by'' lawsuits against 
whatever business fit the criteria.
    Surely this exploitation was not the intention of Congress 
when they passed this groundbreaking legislation 11 years ago.
    That said, too many experts, Congress's intentions and the 
legislation that came out of the debate over giving access to 
all Americans is very vague, and a lot of the struggles with 
the act over the last decade certainly prove that point. The 
ADA is well intended, but not particularly well written.
    In a recent Supreme Court case on the ADA--in a unanimous 
decision that concluded employers do not have to hire a person 
with a disability if they believe that person's health and 
safety would put a risk by performing the job--Justice Souter 
repeatedly expressed confusion over Congress's intent. Other 
Justices have openly expressed frustration with the confused 
legislative intent of the ADA.
    If the most accomplished legal minds in our country have 
argued that ADA's clarity is lacking, should we be surprised 
that it is so easy to exploit? H.R. 728 is one very good 
opportunity that his Congress has to reform the positive aims 
of the ADA, while putting in some control for its rampant 
abuses.
    I have worked hard to make my business compliance. But with 
the number of the agencies a business owner has to consult, not 
to mention contractors hired to bring a building up to code, it 
is very common for an owner to think he or she has already done 
the right thing and still be subjected to a lawsuit.
    For example, in California, one of my colleagues had been 
licensed by the lottery commission to sell lottery tickets. One 
of the criteria for being licensed by the commission was that 
the location be ADA complaint. Without giving reason to believe 
that he was not complying with the ADA regulations, he wound up 
being one of the victims of a drive-by lawsuit, without ever 
have the opportunity to fix what he did not know was broken.
    The reality is that very few of these lawsuits are about 
expanding access for the disabled, but instead are designed to 
target the business to make the owner pay. In fact in some 
cases lawsuits are filed not because the business has not yet 
installed a ramp but because of a few degrees difference in 
ramp angle. All that H.R. 728 hopes to accomplish is to allow 
businesspeople like me and others the opportunity to try to fix 
a problem before the lawsuit starts.
    As a lawmaker, I am proud of Missouri's work to assist the 
disabled. But despite our efforts, there will still be those 
individuals who want to use the ADA for personal gain and 
exploit a law that has good intentions and that has promoted 
good outcomes. As a lawmaker, I would prefer to enact 
legislation that would more strongly limit the types of 
frivolous lawsuits that can be filed. But because this is a 
federal law and the business communities that is governed by 
it, I cannot pass the necessary regulation in my own state.
    I do have some additional comments. I know my time is out. 
I just--I will make this testimony to the Committee and I 
appreciate your questions at later time, thank you, Mr. 
Chairman.
    [Mr. Richard's statement may be found in the appendix.]
    Chairman Graves. We will submit it to the record.
    We are going to take testimony from everybody before we 
start asking questions.
    We will now hear from Mr. Robert Fleckenstein, who is 
President of Summit Contractors, Incorporated, in Jacksonville, 
Florida. And I appreciate you being here today and traveling so 
far also.

    STATEMENT OF ROBERT L. FLECKENSTEIN, PRESIDENT, SUMMIT 
     CONTRACTORS, INC., ASSOCIATED BUILDERS AND CONTRACTORS

    Mr. Fleckenstein. Good afternoon, Mr. Chairman, and members 
of the Committee. My name is Robert Fleckenstein. I am the 
principal of Summit Contractors, a commercial construction 
company based in Jacksonville, Florida.
    On behalf of the Associated Builders and Contractors, I 
would like to thank Chairman Graves and the members of the 
Subcommittee on Rural Enterprise, Agriculture and Technology 
for this opportunity to address ABC's concerns regarding the 
interpretation of the Americans with Disabilities Act.
    Summit Contractors was founded in 1989. We specialize in 
both commercial and multi-family residential construction. We 
are actively involved in the construction industry and have 
been a member of ABC's Florida First Coast Chapter since 1991. 
ABC, who I am representing today, is a national trade 
association, representing more than 23,000 merit shop 
contractors, subcontractors, material suppliers, and 
construction-related firms within a network of 80 chapters 
throughout the United States and Guam.
    Before I begin my testimony, I think it is important that I 
state that I fully support the objectives of the Americans with 
Disabilities Act. Americans with disabilities have my full 
respect, and should be provided with accessible buildings and 
living units. In fact, the additional cost to comply with the 
ADA minimal is very inexpensive if it is done during the 
construction process.
    For the last 10 years, my firm has specialized in the 
construction of multi-family residential units throughout the 
United States. We build an average of 3500 units for developers 
each year. We do not build for ourselves. We build for third 
party owners. We do not perform any design functions, and we do 
not have designers on staff.
    Instead, project developers that we work for provide my 
company with a design, and we build the units according to that 
plan furnished by the design professionals.
    The problem we face, however, is ambiguous statutory 
language that exposes my company to liability for any elements 
of a developer-provided design that are not in compliance with 
ADA. Section 303(a) of the ADA states that discrimination under 
the act includes a failure to design and construct facilities 
that are readily accessible to and usable by individuals with 
disabilities.
    Federal agencies, as well as some courts, have interpreted 
``design and construct'' to mean design or construct. Under 
this interpretation, contractors who simply build according to 
the plan that they are provided are liable for the defects in 
that plan. As a consequence, contractors face the enormous cost 
of rebuilding projects that the owner and his design 
professionals design incorrectly. Contractors must also pay the 
considerable cost associated with defending against lawsuits 
brought by the Department of Justice.
    We disagree with the interpretations of the ADA holding or 
stating that a contractor that does not own or operate the 
facility, and is not involved in the project design, can be 
held liable for violations when the contractor simply 
constructed the project in accordance with the plans and 
specifications furnished by the owner and its design 
professional.
    We feel that Congress should clearly state that only those 
parties who have significant control over design and 
construction of a project could be held liable for any 
violations. In our case, this would be the owner of that 
project that through its agents designed and constructed the 
facility.
    To illustrate why my company relies on design professionals 
and therefore should not be exposed to liability under the ADA, 
I would like to discuss the design of the exterior entrances to 
multiple buildings.
    Due to the interdependence of drainage features, water and 
sewer elevations, manholes, curbs, and required elevations for 
building floors, it is imperative that all the design 
requirements for the various systems be coordinated. Part of 
this coordination involves assuring that the design is in 
compliance with ADA, including the ADA's requirement as to 
slopes and cross slopes. Only qualified engineers can 
successfully design all these systems. Contractors are not 
licensed to perform this work, nor are we qualified to verify 
that an engineer has done his work correctly.
    Traditionally, an owner contracts with design professionals 
to design a project that complies with all applicable building 
codes, both local and national. Design professionals are 
educated, trained, and compensated to do this. Owners, building 
officials, and inspectors all rely on the design professionals 
to furnish design documents to comply with all applicable 
codes. Contractors traditionally are not responsible for 
design. The contractor's responsibility is to build the project 
in accordance with the drawings and specifications.
    The reason this issue is of such concern to me that my 
company is now a defendant, along with the developer, owner, 
and an architect and engineers, in a lawsuit where it is 
alleged that two projects, completed in 1995, were 
noncompliant. I can attest to you these two door knobs do not 
meet code.
    I built 200 apartment units and put round knobs in lieu of 
the levers because that was what the building department had 
approved, that is what the architect had designed, and that is 
what I had bid, and that is what I had in my cost to furnish, 
and that is what I installed.
    I am now involved in a lawsuit brought on by the Department 
of Justice that is suing me for in excess of a million dollars 
plus a victim's compensation fund of $750,000 on each project, 
and there have been no victims, I might add.
    We have had mediation and are in settlement negotiations, 
so I cannot provide details or identify the projects. But this 
experience has made me acutely aware of the threat to small 
business contractors. This threat is significant. If my company 
is held liable for these violations, we will be forced out of 
business.
    I thank you for this opportunity to be here today, and I 
welcome any questions.
    [Mr. Fleckenstein's statement may be found in the 
appendix.]
    Chairman Graves. Thank you, Mr. Fleckenstein. Thank you 
very much.
    We are now going to hear from Brendan Flanagan with the 
national Restaurant Association. Brendan.

 STATEMENT OF BRENDAN FLANAGAN, NATIONAL RESTAURANT ASSOCIATION

    Mr. Flanagan. Thank you, Mr. Chairman. Chairman Graves and 
members of the Committee, my name is Brendan Flanagan, and I am 
Director of Legislative Affairs for the National Restaurant 
Association.
    The National Restaurant Association is the leading business 
association for the restaurant industry. Together with the 
National Restaurant Association Education Foundation, our 
mission is to represent, educate and promote our rapidly 
growing industry.
    Our nation's restaurant industry is the cornerstone of the 
economy, careers and community involvement. It is comprised of 
over 870,000 locations and we employ over 11.7 million people 
in the country. And every one dollar spent in a restaurant 
creates an additional $2.13 in the sales for other industries 
throughout the economy.
    Operating a restaurant can provide many people a great way 
to earn a good living and to serve the public. With that comes 
a great deal of responsibility and rightfully so. Part of that 
responsibility includes adhering the Americans with 
Disabilities Act. This is a responsibility our small business 
owners take very seriously. For them, it is a matter of 
fairness, and it is also makes good business sense. The 
disabled should be reasonably accommodated--whether they wish 
to be served in our business or work in our business.
    As mentioned earlier, unfortunately, as with other laws, 
the ADA has created some unintended consequences. One 
consequence is that it has created confusion among businesses 
that must make sure the business is in compliance. The primary 
difficulty is that parts of the law are vague and open to 
interpretation.
    The concern I hear regularly from members is that ``they 
just don't know what it is they are supposed to do so that they 
can do it.'' The problem, they say, is that depending on who 
you ask, you can sometimes get different answers. In many 
cases, it can be difficult for even the ADA consultants, local 
inspectors and private attorneys to agree.
    Today, a small business owner can call two different ADA 
consultants with a removable barrier question, and conceivably 
get two different answers. That same owner could also pay 
thousands of dollars to hire a consultant, pay thousands more 
to make necessary structural compliance changes, and still have 
a local inspector tell them later that they are not in 
compliance.
    In an even more disturbing scenario, they could hire a 
consultant, make changes, and face a lawsuit because an 
attorney believes that they are not in compliance. In fact, 
while ADA compliance has been a source of some frustration for 
many small businesses, it has been a tremendous opportunity for 
some attorneys.
    Another intended consequence is that some attorneys across 
a growing number of states are exploiting the ADA for their own 
personal benefit. Unfortunately, litigation is becoming a first 
step to resolving accessibility issues. In many cases, a 
restaurant is first made aware of an alleged ADA violation when 
they receive notice they are being sued. In some part of the 
country, 20 to 30 businesses in a single town have been sued by 
the same attorney in the same week. The lawsuits often target 
small mom and pop businesses that are unaware of the alleged 
violations. Other suits include businesses that have already 
gone through considerable expense to comply with ADA. In other 
case, businesses incur unnecessary legal costs and the courts 
are unnecessarily burdened.
    Litigation does not further the cause of access. Costly 
lawsuits only divert valuable resources and attention away from 
finding a solution. A cooperative approach like Mr. Foley's 
bill allows business owners to make corrections in their 
operations if such corrections are needed before a lawsuit is 
filed.
    No one is suggesting, however, that employers should never 
be sued under the ADA. In some cases lawsuits may be warranted. 
However, in those cases where a business owner is willing to 
make appropriate compliance changes, he or she should be 
provided an opportunity to do so before being sued. Litigation 
should not be the first option.
    Thank you.
    [Mr. Flanagan's statement may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Flanagan. I appreciate very 
much.
    Now we are going to hear from Kevin Maher with the American 
Hotel and Lodging Association. Kevin.

     STATEMENT OF KEVIN MAHER, AMERICAN HOTEL AND LODGING 
                          ASSOCIATION

    Mr. Maher. Thank you, Mr. Chairman and the Committee. I 
appreciate the opportunity to testify before the Subcommittee 
this afternoon on an issue of great importance to the small 
businesses that make up the lodging industry.
    I applaud the leadership of the Subcommittee on Rural 
Enterprise, Agriculture and Technology for addressing this 
important issue.
    I am Kevin Maher, Vice President of Governmental Affairs 
for the American Hotel and Lodging Association. AH&LA, founded 
in 1910, is a federation of state and local lodging 
associations representing the nation's lodging industry. There 
are over 53,000 hotels, lodging properties, and more than 4.2 
million rooms, and have 1.9 million employees in the United 
States. Our annual sales exceed $103 billion.
    The AH&LA's membership ranges from the smallest mom and pop 
roadside independent properties to large convention hotels. The 
lodging industry is one of small businesses. Eighty-five 
percent of properties in the United States have less than 150 
rooms, 52 percent have less than 75 rooms. Forty-five percent 
of the properties charge less than $60 a nine, 21 percent 
charge less than $45 a night.
    The 12-year-old Americans with Disabilities Act is a good 
law. AH&LA supports the goals of this landmark law. The lodging 
industry is about accommodating the customer and our members 
have spent millions to comply with the ADA. Our members want 
and need this significant and growing market.
    We are not here today to defend or ask for leniency for 
those operators that willfully ignore the requirements under 
the ADA. The lodging operators that have ignored the ADA for 12 
years will suffer their self-created fate.
    However, a few unscrupulous attorneys seeking to wage 
economic retribution upon businesses using the guise of well-
intentioned civil rights laws and place our members in a 
difficult position.
    Unfortunately, it is not the goal of these few attorneys to 
improve accessibility for the disabled traveler but to extract 
financial punishment through lawsuits. The disproportional cost 
of these lawsuits fall upon the small business element of the 
lodging industry. These are the members that cannot afford to 
litigate.
    Our members have long been frustrated with the inability to 
get clarity and compliance with the ADA. When a hotel operator 
wants to open a new property, an architect will be hired, 
zoning permits obtained, operating licenses acquired from the 
proper local and state offices, these various boards, 
commissions, government entities will perform their duties, but 
at no point will anyone check for compliance with the ADA. 
There is no entity that will give an ADA certificate, informing 
the business that they comply with ADA.
    This in no way mitigates one's obligation under the law, 
nor should it. However, when our members suffer from numerous 
drive-by lawsuits focused on the vagaries or the easily 
corrected aspects of the ADA, one is forced to ask what is the 
goal of the ADA, to litigate or accommodate.
    Significant issues related to the ADA have been and will be 
in the future considered by the courts as high as the United 
States Supreme Court. Recent cases have dealt with such 
fundamental issues as what is a disability, what is an 
accommodation, who can be sued under the ADA. As federal courts 
continue to struggle with a basic understanding of the ADA, so 
too do our members and our ability to assist our members.
    This is where H.R. 728, the ADA Notification Act comes in. 
Congressman Mark Foley's legislation will help our members work 
with the disabled community to correct minor violations and 
improve accessibility for the disabled traveler. In effect, the 
passage of this legislation will tip the balance back to the 
accessibility and back to the disabled traveler. This is a 
common sense approach to inadvertent noncompliance.
    The ADA Notification Act will not help a hotel operator 
that builds a new 500-room hotel without accessible rooms, 
properly configured wheelchair ramps, or the proper number of 
accessible showers. These operators that willfully ignore the 
requirements of the ADA will suffer the consequences.
    The ADA Notification Act will focus precious resources 
where they should be focused--on improving accommodations. 
Rather than spend time and money on court costs, the hotel 
operator will spend time and money on correcting these minor 
violations.
    A.H.&.L.A. believes that passage of the ADA notification 
Act will allow our members to more fully participate in a 
significant and growing market segment. We know according to 
surveys that 54 million Americans, approximately 20 percent of 
the U.S. population, have some disability, and these numbers 
are growing. Travelers with disabilities spend $3 billion 
annually. One recent study from the Open Doors Foundation 
estimated the potential market for this community could grow as 
high as $27 billion.
    This is a significant market, one the lodging industry 
cannot afford to ignore. Operators that ignore or fail to 
recognize the growing market risk losing out on a lucrative 
business, one our industry can ill afford to miss out on a 
post-September 11 economy.
    The lodging industry is one of service and accommodation. 
We pride ourselves in this. We must seize opportunities to 
employ our resources to expand accessibility to all market 
segments if we are about our revenues, and we do.
    Mr. Chairman, I would argue that it was the goal of the 
landmark ADA for the lodging industry to increase 
accessibility. It is in the interest of all parties to work 
together to achieve accessibility. H.R. 728, the ADA 
Notification Act will help achieve this.
    Again, Mr. Chairman, I thank you for the opportunity, and I 
will be pleased to answer your question.
    [Mr. Maher's statement may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Maher.
    We are now going to hear from Dr. Steven Rattner. Dr. 
Rattner is a dentist in College Park, Maryland. Doctor, I 
appreciate your being here today. Thank you.

STATEMENT OF STEVEN RATTNER, DDS, P.A. AND ASSOCIATES, COLLEGE 
                            PARK, MD

    Dr. Rattner. Good afternoon, Mr. Chairman, and members of 
the Committee. My name is Dr. Rattner. Currently, I am resident 
of Potomac, Maryland. I have been deaf since birth. Now I am 
the president of a dental practice in general dentistry that 
was started in 1986. Presently, I have 13 employees and two 
other dentists working for me. My dental offices are located in 
College Park and Rockville, Maryland.
    I first opened the College Park office in 1986. That was 
before the ADA law. In 1992, due to the rapid growth of my 
dental practice, I decided to renovate my office to meet our 
needs. In order to do this, I relied on the Department of 
Justice technical assistance guidelines and the ADA 
Accessibility Handbook to make appropriate modifications. These 
services were available to me at no charge. As you are aware, 
the technical assistance guidance can easily be accessed 
through the Internet.
    I also made several requests to the condominium association 
where my office is to make the common area and the lobby 
accessible for my patients. The board of the association 
finally approved my request and implemented the modifications 
with minimal cost. These modifications included making the 
public restroom and the sidewalk ramp accessible to people with 
disabilities. I am proud that the condominium and my business 
are complying with the AD Act.
    I have patients with all types of disabilities such as 
wheelchair user, deaf and/or blind persons, who are able to 
access to my office and use my valuable service.
    Compliance with the ADA is not a difficult thing for my 
business. It is my responsibility to make my business to be 
accessible to everyone, and it is the disabled person's right 
to freely say who to do business with. The costs of modifying 
my office was minimal. I am sure you are aware of the federal 
tax credit available to business that make renovations to meet 
the requirements of ADA. The tax credit was a benefit for my 
business as it is for many others who are trying to meet the 
requirement of ADA.
    Adding the notice provision to this law is a threat to my 
future as a deaf person who may request an interpreter for 
continuing education in dentistry, as well as for other 
activities. For instance, several years ago, a large reputable 
dental software company was offering a class on enhancement of 
the dental software that my office is currently using. The 
company denied my request for a sign language interpreter for 
the class that I signed up for. The company officers were 
unfamiliar with ADA.
    After much discussion, the officer realized that they were 
wrong and approved my request. However, it was too late to 
arrange for an interpreter for the course that I want to take, 
and I had to wait six more months to the next course.
    Now, if you pass this bill, you will create unnecessary 
obstacles in my professional development. The companies I 
depend on for professional opportunities could deny me the 
services in violation of the ADA, and be completely off the 
hook if they agree to right their unfair practices within 90 
days after I complain. I would then be behind with what is 
happening in my dental profession, and be uninformed to the 
latest developments. As a result, my business and my customers 
will be penalized by the ADA Notification Act.
    I still take continuing education and seminars. Yet, these 
days I rarely encounter the ignorance that I experienced a few 
years ago with ADA and my need for interpreters. I do not see a 
need for this proposed provision.
    I believe that this provision is not needed because the ADA 
is 13 years old and functionally protecting people with 
disabilities. Adding this notice would be like saying ignorance 
of the law is no longer an acceptable excuse. In running my 
business I am required to comply with many laws and 
regulations. For example, disposal of biological waste, tax 
codes, license requirements, many requirements. As a business 
owner in America, I am expected to operate my business in full 
compliance with these laws and regulations from the very first 
day I open my doors to the public.
    These laws and regulations do not have a 90-day period to 
excuse a violator after a business owner has been caught. There 
is no reason why we should make an exception for ADA.
    Adding this notice provision, H.R. 728, would be like 
opening a can of worms, especially for deaf people who request 
sign language interpreters and other necessary services to meet 
their needs.
    In conclusion, the ADA as it now stands is good for 
business, good for customers, and good for a strong economy in 
America. It provides the means to carry out Congress and 
President Bush's promises that the ADA would serve as the 
``clear and comprehensive national mandate for the elimination 
of discrimination against individuals with disabilities.''
    The ADA Notification Act would be a serious and sever 
setback of the nation's promise.
    Thank you.
    [Mr. Rattner's statement may be found in the appendix.]
    Chairman Graves. Thank you, Dr. Rattner. I appreciate your 
testimony. I would like to speak to you sometimes about the 
shortage of dental students in our country too, but I will save 
that for another hearing and another day.
    Dr. Rattner. Thank you.
    Chairman Graves. At this time I would like to introduce 
John Garber, who is founder of Garber & Associates. Mr. Garber 
is an expert on improving organizational performance by 
focusing on the human element of the workplace. His testimony 
is going to examine the provisions in Title I of ADA. Mr. 
Garber.

  STATEMENT OF JOHN E. GARBER, CSP, PRESIDENT & CEO, GARBER & 
     ASSOCIATES, LLC, SOCIETY OF HUMAN RESOURCE MANAGEMENT

    Mr. Garber. Thank you. Mr. Chairman, Ranking Member 
Ballance, and Committee members. I appreciate the opportunity 
to appear before the Subcommittee today to discuss the 
liability small business face when complying with the Americans 
with Disabilities Act.
    As a member of the Society of Human Resource Management, I 
come before you to testify as a small business owner, human 
resource professional, and consultant specializing in employer 
risk management and occupational health and safety.
    In today's competitive global economy, small business 
owners are challenged to operate more efficiently and 
effectively than ever. Profit margins are thin and the cost of 
doing business increases as each insurance renewal date 
approaches, and with each new emerging trend in employment 
litigation.
    Business, in general, is experiencing an exponential 
increase in workplace litigation, and added costs that can in 
many circumstances financially ruin a small business when 
especially gray and troublesome area is compliance with the 
Americans with Disabilities Act
    Many companies with safety-sensitive jobs may have various 
problems with employee alcoholism and drug abuse, a trend 
recognized in industries across the board. This baffling and 
frustrating problem seems to yield little to company-sponsored 
education, surveillance, checks of bodily fluids, offers of 
assistance and rehabilitation problems, the failure of most 
companies to manage the risks that workplace drugs and alcohol 
presents raises fundamental questions of whether the strategies 
being used by companies to combat such abuse are in fact 
effective.
    In an effort to effectively and consistently manage the 
workplace, many employers choose to develop and implement 
employment policies to address such subjects as compensation 
benefits, workplace rules and regulations, safety standards and 
job performance requirements. Company policies are developed 
and implemented to comply with a host of federal and state 
employment laws, including such laws as the Family Medical 
Leave Act and the ADA.
    As you know, the ADA protects individuals with disabilities 
from discrimination in the workplace. Under the ADA, a 
recovering or rehabilitated drug or alcohol abuser is covered 
as an individual with a record of impairment, and thus 
protected. However, the current use of alcohol or illegal drugs 
is not. Organizations therefore can have policies that prohibit 
the possession of drugs and alcohol in the workplace.
    The ADA also allows the prohibition of on-duty drug or 
alcohol use, or being under the influence of drugs or alcohol 
at work. The ADA permits employers to have a substance abuse 
testing policy, yet such tests are required to use correct 
testing samples and to be confidential. Pre-employment drug 
tests are not considered medical tests under the ADA, and 
therefore are viable. Individuals who test positive for drug 
use can be denied positions because applicants who test 
positive for illegal drugs are not covered by the ADA.
    Moreover, organizations may drug test to determine that an 
employee is no longer engaging in drug use without violating 
the ADA.
    Hiring practices and policies expose employers to enormous 
responsibility and liability. Litigation is costly even if the 
claim is unfounded. For small business, this exposure can be 
debilitating, and in an effort to avoided excessive litigation 
fees some small companies often forego pre-employment drug 
tests and drug screening, and thereby operating their 
businesses at higher risk of losses.
    A recent government study determined that about 12 percent 
of full-time employees acknowledged either having used an 
illicit drug or having had five or more drinks at a time, five 
or more times, or both in the previous month. This illegal drug 
use and excessive drinking is drug and alcohol abuse.
    Independent studies have shown that people tend to 
underreport their illegal drug use by about 50 percent. 
Analysis of insurance claims by the Rand Corporation found that 
among employees with company-provided behavioral health care 
benefits a mere 0.3 percent of workers file claims for 
substance abuse treatment on an annual basis. Assuming a 
workforce of 1,000 employees and the rate of serious substance 
abuse of 12 percent, this means that 120 employees should be 
getting professional help but only three actually are. Even if 
the number of employees needing treatment is only a very 
conservative three percent of the total employee population, 
only one worker out of 10 is getting appropriate care.
    Substance abuse issues raise some interesting concerns, 
especially for small business where fewer employees and smaller 
budgets are duly burdened. For example, an employer who 
implements and assumes the cost of a substance abuse program 
may find itself covering attorney and consultant fees, as well 
as lab fees for each drug and alcohol test performed. Then 
there are the indirect costs associated with each time the 
employee in the substance abuse program takes out of his or her 
day to report to the clinic to have the sample taken, not to 
mention the lost productivity.
    An employer who opts to implement a drug abuse program may 
also face a variety of lawsuits, including claims of 
discrimination, privacy violations, unreasonable search and 
seizure, due process violations, and negligence. Further, an 
employer could be faced with violations of collective 
bargaining agreements as well as possible wrongful termination 
claims if an employer takes action against the employee whose 
drug or alcohol test was positive.
    The annual combined cost of alcoholism and drug addiction 
to U.S. businesses is approximately $120 billion, which is more 
than productivity loss attributable to heart disease, diabetes 
and stroke combined.
    In some states workers' compensation carriers may decline 
coverage for work-related injury if the results of a drug test 
from a post accident drug test are positive, and it is 
determined that there is a causal relationship of the drug or 
alcohol to the accident that resulted in the injury.
    I have one particular client who does not conduct post 
accident drug testing for fear that the employee violated the 
substance abuse program, and as a result they terminated the 
employee, they would be responsible for the workers' 
compensation claim. It is often difficult to close a workers' 
compensation case once the employee is terminated because the 
employer forfeits its ability to control the costs of the claim 
under such programs as light duty, and early return to work.
    Under the ADA, an employer may not inquire about a job 
applicant's disability or workers' compensation claim history 
before making a conditional offer of employment. This means 
that an employer may not exclude an applicant whose employment 
may cause an increase in workers' compensation premiums, and 
potentially these workplace actions could cause harm to other 
employees.
    Similarly, an employer may not ask an applicant about prior 
drug or alcohol problems. As discussed before, employers may 
face--may require drug tests and they may require a medical 
exam and condition employment on passing the exam, but only if 
all applicants are required to take the medical exam.
    There are some areas where employers can be proactive in 
trying to hire safe and responsible workers, yet many legal 
barriers remain. There is much confusion for employers trying 
to comply with the state and federal employment laws, much of 
which concerns the intersections of various laws and a myriad 
of legal remedies available to disgruntled employees.
    When an employer attempts to protect someone's ADA rights, 
he or she could very well, yet unsuspectantly, be trampling on 
the rights of another employee, inviting various legal claims 
and opening him or herself to liability.
    Mr. Chairman, Committee members, thank you for the 
opportunity today to share some of my thoughts and opinions. I 
look forward to working with you to address this issue, and 
would be more than happy to answer any questions you may have.
    [Mr. Garber's statement may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Garber. You bring up an 
interesting point, and really the rub or at least part of it 
with ADA, and that is the small business shouldering the burden 
of costs associated with employees who use illegal substances, 
and I do not think anybody intended for ADA to do that.
    We are going to open it up for questions now, and we will 
try to get members, or we will try to limit our questions to 
five minutes, and my first one is for you, Mr. Garber.
    You mention--you brought up in your testimony the excessive 
litigation, and what it costs small business. I brought up 
that, just briefly mentioned what it costs, particularly for 
illegal substance abusers. Mr. Foley, in testimony for his 
bill, brought it up too.
    But in your opinion, what is it--you know, what can we do 
when it comes to at least testing, you know, drug testing and 
all in the workplace? What is it we can do to change ADA so at 
least the small employers are not leery or scared to death of 
implementing those sorts of provisions for potential employees?
    Mr. Garber. Well, thank you for that question. I think what 
can be done about it is, first of all, there is a fear of 
litigation and a fear of being sued when wanting to implement a 
drug testing policy. I think the confusion is, and I allude to 
this as the Bermuda Triangle of employment litigation issues, 
when you want to develop a drug abuse program, a substance 
abuse program, and you are trying to navigate through ADA, 
FMLA, and workers' compensation.
    I think one of the things that can be done is perhaps 
having a similar waiting period before somebody has a knee-jerk 
reaction to suing somebody over wanting to do a substance abuse 
test.
    I can relate this back to a particular issue I have right 
now with a client that has concerns over the use of 
prescription medications for people who operate their 
limousines who are not subject to DoT drug testing. And the 
concern is with the aging population of that workforce they 
know and they have reason to believe they are taking 
prescription medications, but you cannot inquire as to what 
they are taking for fear that they are inquiring about any 
potential disabilities.
    In my opinion what needs to be done is to clarify a little 
more clearly as to what an employer can and cannot do.
    Most of my clients want to do the right thing under ADA. 
They just do not know what to do, and they have the fear of 
litigation. They feel that whatever step they take, there could 
be three or four steps backwards as a result of a lawsuit.
    Chairman Graves. Thank you.
    Mr. Ballance.
    Mr. Ballance. Thank you, Mr. Chairman. Just a couple of 
general statements.
    First of all, I want to thank each of you for coming to 
testify, and I appreciate your testimonies, and all of the 
small business people, particularly Dr. Rattner, your testimony 
about your particular business, I congratulate each of you.
    What has been the experience--maybe I should point somebody 
out, but if someone will volunteer for this--of using all of 
the technical assistance that ADA has available through the 
Chambers of Commerce and public libraries, the Small Business 
Primer, toll free hotlines, fax on demand? Have any of you had 
an opportunity to use those services and make sure that you 
comply with ADA?
    Mr. Fleckenstein, let me ask you that question.
    Mr. Fleckenstein. Yes, sir. In the construction business, 
we rely so much on the design professionals to interpret the 
codes, but since my experience, yes, we very much are aware now 
of what those requirements are, and we try to make those 
changes if they do not comply on the drawings.
    The problem is that contractors are not licensed designers, 
and when we get into items that have to interpret engineering, 
we are in violation of our license in each state. Each state, 
we are licensed separately. So we have a real conflict of 
trying to change drawings that we think are worthy of being 
changed, but then we are in violation of our license, and we 
can lose our license for trying to design.
    We can indeed notify the engineering professionals to make 
those changes, but that is really up to the owner of the 
project to direct the architect to do that.
    Mr. Ballance. Let me ask you a follow-up question if I may. 
Can you not in your contract state or require the builder, you 
are the builder--the owner of what you are building to comply 
with ADA?
    Mr. Fleckenstein. Yes, sir. Indeed, we do that. But the 
Department of Justice, they do not really look at our contract. 
They look at the language, and they say that everybody is 
responsible, and obviously they go, usually end up going to the 
deeper pockets.
    Mr. Ballance. Well, they should not do that.
    Mr. Fleckenstein. No.
    Mr. Ballance. Doctor, let me just ask you again. I heard 
your testimony about your experiences. What are some of the 
benefits that you have seen in complying with this Act as you 
have testified that you have made a special effort to comply?
    Dr. Rattner. Well, interestingly because I am deaf so I 
know what the needs are, we complied before it became a law 
because we have a lot of patients with wheelchairs.
    When we applied for a building permit, and one of the 
people in my office had the ramp, and my architect drew a ramp, 
made it like--for every inch that you elevate the ramp, it had 
to be a foot long. But my architect drew eight to one, and the 
county permit office caught that error, that it had to be 12 to 
one. So the county had the responsibility informing us.
    The county was doing their job, telling us what are the 
codes are, so like with what this builder said, I cannot blame 
him. You have to blame the county office who reviewed the plan. 
They are the one who knows the law. They are the one who reads 
the blueprint, and whether to approve the plan or not. It 
should not be blamed back to the builder. It is to be blamed 
back to the architect or the owner who is applying for the 
permit.
    Mr. Ballance. Mr. Chairman, one other question to the 
Restaurant Association, Mr. Flanagan.
    Currently, if a visually impaired person would go into a 
restaurant with a guide dog, and the restauranteur would turn 
them away. Under this bill, you would have to wait 90 days.
    Do you think that is reasonable? Now he could go and get an 
injunction if he had to, and go back the next day. In fact, the 
mere publicity is usually all it takes to have the 
restauranteur to turn around, and I am sure you guys send out 
all kinds of information to your clients informing them that 
they should not discriminate in this way.
    But the point is that under this bill it would take away 
his immediate right to get relief. Do you agree with that?
    Mr. Flanagan. Well, I think the bottom line is the goal is 
compliance. And if that restauranteur is going to comply 
without a lawsuit, that is the most attractive option, 
obviously. But if that restauranteur or any other business for 
that matter is not compliant with any provision of the ADA and 
all other means have been explored, then clearly a lawsuit 
would be or could be necessary.
    Mr. Ballance. All right. I have some more questions, but I 
will wait.
    Chairman Graves. Mr. Case.
    Mr. Case. Thank you, Mr. Chairman. Thank you for holding 
this hearing. This is a problem that I think there is no easy 
answer to, and it certainly has been an issue in my home state 
of Hawaii, as some of the information here notes.
    Mr. Fleckenstein, let me just ask you because I think you 
are the right person to ask, and I ask you the question because 
in one of my prior lives I was a construction lawyer who 
advised clients on ADA compliance, so I have got some personal 
knowledge of how this actually works out there in the field, 
and my clients were contractors and design professionals,
    My observation, I have a couple of observations on ADA and 
the problem here. The first observation is that I agree that 
the ADA can sometimes be quite ambiguous. It takes judgment 
calls to comply. It is not a--you know, it is an exact science, 
and that is good for attorneys, I guess, because we get to 
analyze and go through all of the--but it is not so good for 
anybody else.
    Second, my observation and experience is that where a 
design professional errs on the side of safety, they are almost 
always going to be safe. It is where they cut corners because 
they are trying to save expenses that they expose themselves to 
ADA lawsuits.
    Third, in my experience most beneficiaries of ADA and the 
attorneys that represent them do in fact give warning in 
advance. It is a rare attorney that just wants to kind of blind 
side everybody all the time.
    And fourth, I guess my observation is in those cases where 
you have got a situation where an attorney just does come out 
of nowhere, and if there is immediate compliance or the promise 
of compliance, the chances are the courts are not going to 
proceed with that lawsuit. That is my own experience out there 
representing your side of the street on this.
    And my question really is, are we in this proposal 
overreacting? I guess that is the best way to put it. Are we 
trying to solve a specific problem that is fairly isolated and 
really making things worse?
    Because I think the last thing that any of us want to do, 
and I think you would agree with this, we do not want to make 
it so hard to bring these lawsuits, at least I do not. Messing 
around with the jurisdiction of courts in such a way that you 
disincentivize contractors, design professionals and the 
attorneys that represent them from playing safe when you advise 
your clients on how to build.
    So my question to you is, is there another way to solve 
this short of this particular proposal? Because, you know, I 
have asked you the question and I will give you my observation. 
I think this is kind of going too far to the other end, and I 
am afraid of the consequences from the perspective of the 
community that we are trying to protect.
    Mr. Fleckenstein. Thank you for your question, Mr. Chase.
    From the construction side, I believe the problems are 
extremely simple. I do not believe the ADA complies 
requirements as it pertains to contractors is very serious or 
very expensive to correct. Most of the item that are required 
inside of units to make them accessible in a typical apartment 
unit probably would not cost $40 or $50 to do. It is extremely 
inexpensive.
    Where the problem is is on the exterior of the buildings in 
the design of the various civil issues. ADA requires that 
access ramps never exceed two percent. This is where the 
problems lie. With the code the way it is written, you cannot 
coordinate all the various--the water, the sewer, the storm, 
the curbs, the streets, and the elevations of the buildings, it 
just cannot be done by the contractor. We are just not 
qualified and that is----.
    Mr. Case. Would that not exist regardless? I mean, the 
building--when these lawsuits are initiated the building is 
built.
    Mr. Fleckenstein. Yes, sir.
    Mr. Case. The question is not, you know, what we are going 
to do about it. The question is whether you give 90 days 
notice. I mean, the building is up already and the question is 
whether you are going to take corrective action or not. Maybe 
the question is how can we get farther back into the process to 
find some safe harbors. I think that has always been my 
observation of the problem with ADA. How do you get a safe 
harbor? How do you get somebody to say, okay, it is all right 
what you are doing?
    Mr. Fleckenstein. Well, one of the problems that we have 
the local building officials are not qualified to determine if 
the project meets the codes. That is--if they were qualified to 
review drawings, and say that, hey, this is not in compliance, 
then that would go a long way in solving the problem. But 
unfortunately, they take the word of the engineering and design 
professional. They are the ones that are licensed, so the 
building inspectors, they assume they know what they are doing, 
and the approve the drawings as approved. They come out at the 
completion of the project and they certify that I have built it 
like the drawings call for.
    So I guess compliance could start at the building official 
level when the building permits are issued, or COs are issued.
    In the particular project that I was involved in, it was 
HUD financed, so the HUD, the federal government approved these 
drawings and approved all the details before I started 
construction, and accepted the project when it was finished.
    It was eight years later that the Department of Justice 
decided to make a field trip to my particular project, and saw 
these violations, and they were violations, no question about 
it. And if the violations had been shown on the drawings and I 
did not put a light receptacle at 48 inches when it was shown 
that, then I should have been sued, and I am responsible for 
that.
    Mr. Case. Thank you. My time is up but I think that is 
perhaps where we need to go is back a little earlier on.
    Mr. Fleckenstein. Yes, I agree with you.
    Chairman Graves. Representative Richard, I do have a 
question.
    Getting back to H.R. 728, if that were implemented and 
businesses had an 90-day grace period in which to implement 
their changes or they are subject to suit, which in that case 
the disabled will continue to be protected, the only person it 
seems to me that is going to suffer under this is the attorneys 
who are not going to be able to collect their fees.
    But my question to you is, what is the immediate effects to 
business if these quickie lawsuits continue to be filed and 
pushed forward? You know, what is the future of small business 
under that scenario.
    Mr. Richard. Well, Mr. Chairman, of course, it is monetary. 
That is obvious. However, in the industry that I belong to, the 
bowling industry, 50 to 60 million people a year go through our 
doors whether you are a little four- or six-lane bowling center 
in Iowa or you are a 50-lane bowling center that I have. We 
have numerous events with all kinds of people, all ages with 
disabilities and not disabilities, and it is good business in 
our industry to do business with those that have disabilities 
because they are good customers. We look, we seek those 
customers.
    If we have a frivolous lawsuit, and for some reason the 
press picks that up as we are not a good community citizen, the 
damage may be irreparable.
    Now, we are, in my view, bowling, whether you--in my 
opinion, everyone has been in a center or at least bowled once 
while you were in high school, bowling or what have you. The 
ability for us to have low cost entertainment and try and do 
the right thing for business reasons is important to us as 
business owners, of course, Mr. Chairman.
    But the damage that you make reference to is beyond the 
dollar. It may be irreparable because we are in every community 
a source of community involvement, regardless of your 
background, regardless of your income, and it is an equal 
playing field, and we are proud of that.
    I would say to your question on the 90-day notice that we 
do not believe it will trigger massive change to ADA. I think 
it just gives owners a 90-day notice. They just ask for only 
the mildest restrictions on the current application.
    I do believe there is some alternatives. The bill could 
require that initial complaints could be sent to the Department 
of Justice ADA mediation program. I believe the bill could 
release from liability business owners that have started but 
not fully completed capital improvements. Or the bill could ask 
for a six-month period of notice. I do believe there is room 
for agreement, and I look forward to your Committee's work. 
Thank you.
    Chairman Graves. I do have one quick one too again for Mr. 
Garber, and this was not really alluded to. But violence in the 
workplace can be associated with substance abuse, which seems 
to be a bigger problem with ADA than anything else, and yet 
some individuals obviously they could be in treatment under ADA 
restrictions, but yet many businesses have a zero violence 
policy.
    So which direction does a business go in that situation?
    Mr. Garber. My quick answer to that would be whoever has 
the biggest stick, and at this point you are correct, the ADA 
protects those people who are being rehabilitated and on 
medication which is managing their behavior.
    I really do not know what specific direction to advise a 
client in terms of where to go specifically other than the fact 
to have a clearly defined substance abuse program, and if you 
can link that in with any type of workplace violence protocols 
and procedures.
    The workplace violence prevention policy that is zero 
tolerance, the concern is that if this person chooses to come 
off their medication, and they start exhibiting violent 
behavior in the workplace, can that supervisor or manager now 
talk to the employee and start inquiring as to what is 
happening, where are we at with the treatment, are you coming 
off your medications? I know some of my clients are very 
hesitant and very concerned there. So what do they do? They 
possibly send the person home for the day. They may--some 
supervisors who are not well qualified or trained may make a 
knee-jerk reaction and go ahead and send them for a reasonable 
suspicion test, thinking that they have taken a drug that is 
illegal, whereas they may have come off their behavior 
modification treatment from a psychiatrist.
    Chairman Graves. Mr. Ballance. Do you want to go with--Ms. 
Christensen.
    Ms. Christensen. Thank you, and I apologize for being late 
here. I had a hearing at the Subcommittee at which I am 
ranking. But I am glad that the hearing is still going on 
because I wanted to come by and at least register my position 
on it. It would be inappropriate, I think, for me to ask 
questions. I have not heard the testimony, and I am sure many 
of the questions I might have asked have already been asked.
    But I just wanted to go on record as saying that as a 
strong supporter of small business, having been on this 
Committee now for six years, but also a strong advocate on 
behalf of people with disabilities, I can see no reason for the 
provisions of this bill, or anything that would weaken ADA.
    We are, I think currently on the floor today we have some 
legislation that deals with assisting small businesses and 
dealing with regulations and paper work and so forth, and I 
think this is the wrong way to go. The way to go is to see what 
we can do to help small businesses come in compliance.
    Now, I think it is two years ago I went to the 10-year 
anniversary of ADA, so we are coming on to 13 years now. To 
come at this late stage after the enactment of the bill to put 
people who are already at a disadvantage at further 
disadvantage, and so I just wanted to say that for the record. 
And we are willing to work with you on other ways to address 
the difficulties that small businesses might have in meeting 
the requirements of ADA, but not to weaken ADAS.
    Thank you, Mr. Chairman.
    [Applause.]
    Mr. Ballance. Thank you, Mr. Chairman. I do have a couple 
of other questions.
    My second question, which I will come back to, this way you 
will think about it, many of you have said that there are no 
inspections for ADA compliance. Is there anyone who thinks that 
there should be ADA inspectors?
    Then I would like to ask Mr. Garber, how does this bill 
impact the issue that you have raised at all? And would there 
be any solution to those issues in this bill?
    Mr. Garber. Not as it is currently structured to address 
Title III. If it were to include Title I, and I envision if it 
did include Title I, it would be very similar to legislating an 
ADR policy, an alternative dispute resolution, where most 
employers take it upon themselves to structure an alternative 
dispute resolution procedure requiring an employee to seek a 
resolution to their problems before going outside of that and 
filing legal action through EEOC.
    If this bill were to go ahead and incorporate Title I, it 
would almost, in essence, legislate that and provide 
legislative protection rather than have the employer adopt that 
as a matter of a proactive individualized policy. I think that 
is how it can reach into that and get involved in Title I that 
way.
    Mr. Ballance. Is there anyone who feels that there ought to 
be some ADA inspectors out there going around and checking 
these buildings, or restaurants, or hotels to see if there is 
compliance? Anyone?
    Mr. Flanagan. Mr. Ballance, I can see----.
    Mr. Ballance. We will go to the doctor first and then come 
back to you.
    Mr. Flanagan. Sure. Sure.
    Dr. Rattner. You already have food inspectors. I think that 
is more than enough.
    Mr. Ballance. Enough.
    Dr. Rattner. Perhaps the food inspectors be checking what 
is acceptable besides food, so they do not have duplicating 
people coming back to his restaurant.
    Mr. Ballance. On the government payroll. All right.
    Mr. Flanagan. I was just going to add that in some local 
jurisdictions restaurant owners tell us that the local health 
departments are taking upon themselves for right or wrong to 
point out what they feel are inconsistencies in compliance 
issues.
    Mr. Ballance. All right.
    Mr. Flanagan. So in some local jurisdictions that does 
happen.
    Mr. Ballance. Mr. Chairman, and I asked Mr. Foley about 
this, it seems that the--I believe it is the Buckhannon case, 
essentially puts us where this bill is trying to get us. As I 
understand the case, it says if you comply before the judge 
rules, then you do not pay attorney's fees, and maybe what we 
ought to be trying to do is just make that the law. It is 
already case law, and we can make it statutory law.
    And would that solve the problem in anybody's opinion? 
Because I think if you--I do not believe you ought to take 
people off the hook to just wait until there is a 90-day letter 
and then we can go and solve the issue. I think businesses who 
had--as someone pointed out, as we point out--12 years or 13 
years or 11 years, whatever the number is, 1990, when the 
statute was passed, went into effect in '92, and the statute 
specifically outlined what it was trying to do. So there has 
been notice.
    And I understand that people go in and out of business so 
they are not necessarily looking at this, but would saying that 
if you are in fact in compliance prior to a judge ruling on 
your case, then there can be no attorney's fees, would that be 
a solution?
    Chairman Graves. All right.
    Mr. Flanagan. I would say that the recent case that you are 
citing, I do not think it completely solves the problem that we 
are all here to talk about today from the business side, but I 
think it does remove one of the incentives for the attorneys 
that we are talking about to pursue these types of cases 
because, as you point out, what it does is in those cases where 
there is a settlement negotiated before you your trial, that 
attorney is not permitted to receive attorney's fees. What it 
does not do is it does not block that type of lawsuit from 
being filed to begin with.
    And so I think it does remove one of the incentives for 
these suits, but it does not solve it.
    Mr. Ballance. Well, if I can cut in on you. Mr. Chairman, 
pardon me for doing it this way, but the allegation seems to be 
that there are lawyers out there who only bring these cases 
because they can get attorney fees. That seems to be the 
general allegation. I would suspect that there are people out 
there who go to these lawyers on a legitimate basis and say, I 
have been denied my rights, and I want to bring this lawsuit.
    And so if you take away the frivolous opportunities, and 
there may be some, then it seems to me that we have got the 
essence of the problem. People ought to be able to sue if they 
have a legitimate claim. There should not be an impediment to 
their lawsuit. But if the only basis or the primary basis is so 
that an attorney can collect an attorney's fee, then I do not 
mind cutting off that angle.
    Chairman Graves. Mr. Maher or Mr. Flanagan, you might be 
able to answer this, but Mr. Rattner brought up an interesting 
point with food inspectors.
    Do not restaurants have several weeks to comply with health 
violations when they are found to be violating or out of 
compliance, whatever the case may be?
    Mr. Flanagan. The answer to your question is yes. They are, 
generally speaking, depending on the nature of whatever 
violation, is given a period with which they can come into 
compliance before they face what you would call, you know, 
stiffer penalties.
    Chairman Graves. Very similar to what is being proposed in 
798.
    Mr. Flanagan. Right.
    Chairman Graves. Ms. Christensen.
    Ms. Christensen. Well, I probably have one question that I 
am not sure, that seems as though it may not have been asked.
    The passage of the notification requirement would, in 
essence, remove the primary element of ADA, which is voluntary 
compliance as I understand it, because businesses would wait 
until they receive a notification before complying, that it 
would allow them to do that, removing the incentive for 
businesses to take the initiative to ensure good access--ensure 
access to goods and services.
    And what that does then is it shifts the burden to the 
disabled individual to prove noncompliance as I read it.
    So do you not agree that this bill would put the burden of 
proof in disabled people requiring that they become experts in 
ADA and be able to identify when small businesses are not 
complying? Anybody?
    Mr. Flanagan. I guess I will jump in again.
    Ms. Christensen. Because it seems to put the burden on 
them, on the disabled person to identify when you are not 
compliant and takes away your voluntary compliance that is 
required under the law.
    Mr. Flanagan. I guess, to answer your question, I would 
disagree with that in terms of what we believe the bill does. 
What we think the bill does is it attempts to provide where 
necessary additional opportunities for a business to come into 
further compliance without the need for litigation.
    Ms. Christensen. Anybody else? But this could allow--I 
mean, not every disabled person is going to be aware--I mean, 
they may, they may have access, they may not be aware of what 
is available to bring a complaint, and therefore businesses may 
go on being noncompliant for years and years unless a person 
who is an aggrieved person brings a complaint. And where does 
the change take place? I am missing something.
    Mr. Flanagan. As I testified earlier, in those cases where 
a business owner does not come into compliance after being 
notified of some alleged violations, and when all other options 
have been explored, and that person has been given a reasonable 
amount of time to come into compliance, then perhaps litigation 
is necessary.
    Ms. Christensen. But it seems to me that 13 years is a 
reasonable amount of time to come into compliance.
    Mr. Flanagan. Thirteen years is part of the problem with 
the law, and I think, as we have all testified, as other 
legislation, it is imperfect and it was not drafted in a way 
that makes compliance easy. Certainly 13 years is a long time, 
but I think that points back to some of the problems that are 
in the law.
    Ms. Christensen. Well, the language seems to really make it 
relatively easy to be accommodating. Title I requires the 
businesses provide--with 15 or more employees provide 
reasonable accommodation, reasonable accommodation, and Title 
III, barriers to service must be removed if readily achievable. 
Am I reading that correctly?
    That seems to be extremely fair.
    Mr. Fleckenstein. Representative, in our business, and as 
many of us, try to take the initiative on as you recommended to 
be in compliant. But what happens to those, as I stated in some 
other testimony, when you have a ramp and you have those that 
put a level on it and you are one degree off, and there is a 
lawsuit that you are not in compliant, whether you are going 
into a restaurant, or a bowling center or what have you? Would 
you not agree that you should have the ability to become 
compliance when you originally thought that you were?
    I think that is my claim, my plea to you all. If we do take 
the extra step and follow the bill, and there is a mistake, all 
we are asking for is 90 days to be compliant.
    Ms. Christensen. I tend to agree with my colleague, 
Attorney Ballance, the ranking member here, that that is 
already taken care of. The Supreme Court's decision in 
Buckhannon says that as long as you comply--and to me, in 13 
years, everybody should have complied--before a case is brought 
before the judge, no legal fees are awarded to the attorneys. 
And so I think that responds to the question that you have.
    Mr. Fleckenstein. But if you agree that the plaintiff is 
winning in 80 or 90 percent of the cases, that is still 10 
percent of the cases where it is not working.
    Ms. Christensen. My understanding is that in almost 13 
years there has been about 650 cases, is that right? There has 
been 650 in five years, and that is looking at 6 million 
business, 660,000 public and private employers, 80,000 units of 
state and local government that have to comply, and 54 million 
disabled people that could potentially file, and it is only 
650.
    I do not find that there--I do not know how many have been 
won or how many have been lost, but that is really a handful of 
cases, and I do not see creating a law that would weaken what 
we worked so hard to pass back in 1990 for what is really a 
handful of cases, and I really cannot tell how they have been 
adjudicated, but it is not a large number.
    Mr. Fleckenstein. Representative, your point is well taken. 
However, lawsuits in our industry ranged from 50, 60, 70 
thousand to half a million dollars.
    Now, in our industry that is devastating, even though as 
you recognize, it may be a small percentage, but the fact that 
the lawsuits are of such magnitude that it is devastating to 
our industry.
    Ms. Christensen. Do you have any idea of how many cases 
have been filed under Title III, for example?
    Mr. Fleckenstein. John, do you?
    Ms. Christensen. In your state?
    Mr. Fleckenstein. No, I do not.
    Ms. Christensen. Well, I tend to agree with you, Ranking 
Member, that the necessary flexibility is there in the law, and 
that the case has really pretty much provided what the law--
this bill says it seeks to do, and I do not find it a necessary 
piece of legislation.
    Chairman Graves. We are going to have to get the figures 
reconciled because the information we are getting from the 
Justice Department is in 2000 alone we have got over 3,000 
cases being tracked. So we are going to have to figure out, 
with the staffs working together, where the discrepancy is on 
that.
    Mr. Ballance.
    Mr. Ballance. Yes, I have one final question, and Mr. 
Richard, I will go back to you. You talked about this lawyer in 
Florida. Of course, let me say this, I do not bash lawyers, but 
I do not defend lawyers who bring frivolous lawsuits. And as I 
said earlier, the judge has the responsibility to deal with 
lawyers who bring frivolous lawsuits.
    This lawyer in Florida that was named John Mallah brought 
700 lawsuits. I think what is happening, when I went into 
practice a lot of years ago, I was a general practitioner. 
Whatever walked in the office, if I thought I could handle it, 
I did. Now lawyers specialize, and I assume that this lawyer 
that is the only work he does is in these, and he is an expert. 
So he ought to recognize a lawsuit when he has one and when he 
does not.
    But I just want to point out, and see if you are aware that 
in March of last year a federal judge ruled in a case filed by 
Mr. Mallah, the judge cited the U.S. Supreme Court case that we 
have been referring to, and so Mr. Mallah, he was not entitled 
to attorney's fees because apparently the defendant made the 
necessary changes before the judge ruled, and that ought to be 
the situation. There ought not to be--and the lawyer ought to 
be aware based on that case if his client--and so you send a 
letter because he is just saving himself expenses. If he sends 
a letter to the defendant, potential defendant and says I am 
going to sue you if you do not repair that ramp on your 
restaurant, and then if it is repaired, that is the end of that 
potential lawsuit.
    If he goes ahead and files a lawsuit and the ramp is 
repaired, that still is the end of that lawsuit and he still 
does not get any money. So it seems to me that that ought to be 
a solution.
    Do you agree or disagree?
    Mr. Richard. Would you allow me--my executive director of 
our association is an attorney, and he can respond to that for 
a second?
    Mr. Ballance. Well, yes, I will redirect the question to 
you, Mr. Chairman, if that is okay.
    Mr. Berglund. Thank you, Mr. Chairman.
    Chairman Graves. Could you state your name for the record?
    Mr. Berglund. My name is John Berglund, B-E-R-G-L-U-N-D, 
executive director and counsel for The Bowling Proprietors 
Association of America.
    With due respect, no, the lawsuit does not go away. All it 
means is that the attorney does not collect fees should they go 
to court if repairs are made. Where it is being missed here is 
that the lawsuit is filed, filed against small business owner. 
The small business owner cannot afford $25,000-$30,000 to go to 
a full court file, so they make a settlement, and the attorney 
gets their fees in the settlement. That is prearranged in the 
contingency settlement or the fee, and that is how the attorney 
makes the money.
    So the fact that there was a case that says if the 
businessman makes repairs during the lawsuit, there would be no 
attorney fees is really irrelevant to this proposal.
    Mr. Ballance. Well, let me follow you up. Suppose we put 
that in the law?
    Mr. Berglund. Put what in the law?
    Mr. Ballance. The lawsuit, we codify the----.
    Mr. Berglund. That does not solve the problem. If you could 
put in the law that if the repairs are made, the lawsuit goes 
away in the entirety, then that makes sense. But if you just 
say the attorney fees go away does not solve the problem 
because most cases do not go through the entire court system. 
The small business owner has to settle in advance, then the 
attorneys get their money.
    Mr. Ballance. Well, I do not agree, but anyway we will not 
debate it further.
    Chairman Graves. One final, Mr. Garber. Out if curiosity, 
getting back to the substance abuse problems with ADA, and you 
get into drug testing and medical questionnaires and that sort 
of thing, what other areas of federal law as far as the evasion 
of privacy, does that create some potential problems there?
    Mr. Garber. Yes, there is a lot of problems there because 
the common law protections for employees who feel that there is 
an invasion of privacy if that information got out, for 
example, for a false positive drug test, and it got out, and it 
was published. Obviously people within the work place see that 
discharge a claim can come against that employer for the 
invasion of privacy unreasonable search, and you know, they 
will just keep going on and on. So that is a liability that the 
small business owner faces, and actually it is because of those 
fears that they choose not to even do the program at all. They 
would rather just roll the dice, and just forego it rather than 
try to do the things that they can do to try to control costs 
within their business.
    Chairman Graves. Before we finish up, I would ask unanimous 
consent that all members' comments be included in the record. 
Seeing no objections.
    I would like thank everyone here today who testified. I 
know some of you have come a long ways to do this. This is 
obviously very, very enlightening. ADA, although very well 
intentioned, I think, unfortunately, has some problems with it.
    Congressman Foley's legislation, H.R. 728, would give small 
businesses, I think, a fair chance to comply with very 
complicated mandates before legal action is taken against him, 
and 728 has been referred to the Judiciary Committee. I am 
going to be sending a letter to Chairman Sensenbrenner to take 
favorable action on this bill. It is a first step at least in 
airing out some of these problems. I have signed on a co-
sponsor, and I would encourage anyone else to.
    But I hope to see everybody here tomorrow at the full 
Committee hearing, and again thank you very much.
    The Committee is adjourned.
    [Whereupon, at 3:59 p.m., the Subcommittee was adjourned.]

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