[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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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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