[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
ACCESS (ADA COMPLIANCE FOR CUSTOMER ENTRY TO STORES AND SERVICES) ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
H.R. 3356
__________
JUNE 27, 2012
__________
Serial No. 112-133
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
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Subcommittee on the Constitution
TRENT FRANKS, Arizona, Chairman
MIKE PENCE, Indiana, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
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JUNE 27, 2012
Page
THE BILL
H.R. 3356, the ``Access (ADA Compliance for Customer Entry to
Stores and Services) Act''..................................... 3
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution................................................... 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 6
WITNESSES
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California
Oral Testimony................................................. 23
Prepared Statement............................................. 25
Lee Ky, Reedley, California
Oral Testimony................................................. 33
Prepared Statement............................................. 34
Andrew D. Levy, Partner, Brown, Goldstein & Levy
Oral Testimony................................................. 35
Prepared Statement............................................. 37
David Warren Peters, CEO and General Counsel, Lawyers Against
Lawsuit Abuse
Oral Testimony................................................. 45
Prepared Statement............................................. 48
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 8
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking
Member, Committee on the Judiciary, and Member, Subcommittee on
the Constitution............................................... 21
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution..................... 58
Material submitted by the Honorable Daniel E. Lungren, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 64
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 66
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
David Warren Peters, CEO and General Counsel, Lawyers Against Lawsuit
Abuse, submitted supplemental materials with his statement that the
Committee chose not to print. However, the materials are on file in
the official hearing record. Please contact the House Committee on
the Judiciary's Subcommittee on the Constitution for that
information.
ACCESS (ADA COMPLIANCE FOR CUSTOMER ENTRY TO STORES AND SERVICES) ACT
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WEDNESDAY, JUNE 27, 2012
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 1:40 p.m., in
room 2141, Rayburn Office Building, the Honorable Trent Franks
(Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Chabot, Lungren, King,
Nadler, Scott, and Quigley.
Staff present: (Majority) Zach Somers, Counsel; Sarah
Vance, Clerk; (Minority) Heather Sawyer, Subcommittee Chief
Counsel, and Veronica Eligan, Professional Staff Member.
Mr. Franks. Good afternoon. We have called today's hearing
to examine H.R. 3356, the ``ACCESS Act,'' which Mr. Lungren of
California introduced to make a minor, but very important,
change to the Americans with Disabilities Act, the ADA.
The ACCESS Act is a common sense proposal to require
plaintiffs to provide defendants with written notice and an
opportunity to correct an alleged ADA violation voluntarily
before they may file a lawsuit and force a business owner to
incur legal costs.
This legislation, which applies to cases involving physical
barriers to entry in public accommodations, would both improve
public access for disabled individuals and eliminate thousands
of predatory lawsuits.
When the ADA was signed into law by President George H.W.
Bush in 1990, the goal was to provide the disabled with equal
access to public facilities. And in large part, the ADA has
worked. Unfortunately, enterprising plaintiffs and their
lawyers have abused the law by filing tens of thousands of ADA
lawsuits aimed at churning out billable hours and extracting
money from small businesses rather than improving access for
the disabled as the ADA intended.
These predatory lawsuits are possible for two chief
reasons. First, 100 percent compliance with the ADA is very
difficult to achieve. Even through good faith efforts, such as
hiring an ADA compliance expert, a business can still find
itself subject to a lawsuit for the most minor and
unintentional of infractions.
According to one compliance specialist, ``I rarely, if
ever, see instances where there is not an access violation
somewhere. I can find something wrong anywhere.'' This makes
compliance a challenge even for those with the very best of
intentions.
Second, unlike Title II of the Civil Rights Act, the ADA
does not currently require any notice before lawsuit can be
filed. This has led to thousands of lawsuits being filed for
issues of relatively minor noncompliance, such as a sign being
the wrong color or having the wrong wording.
Abuse of the ADA has been noted by Federal judges in
numerous cases throughout the country, who have referred to the
proliferation of ADA lawsuits as a ``cottage industry.'' These
judges have recognized that the explosion of private ADA
litigation is driven primarily by the ADA's attorneys' fees
provision. One Federal court explained that ``the ability to
profit from ADA litigation has led some law firms to send
disabled individuals to as many businesses as possible in order
to have them aggressively seek out all violations of the ADA.''
Then rather than notifying the businesses of the violations and
attempting to remedy them, lawsuits are preemptively filed
since settlement prior to filing a lawsuit does not entitle
plaintiff's counsel to attorney's fees under the ADA. As one
Federal judge observed, the result is that ``the means for
enforcing the ADA attorney's fees--have become more important
and desirable than the end--accessibility for disabled
individuals.'' But the ADA was enacted to protect disabled
individuals, not to support a litigation mill for entrepreneur
plaintiffs' attorneys hunting for ADA violations to justify
lawsuits.
The ACCESS Act would help eliminate predatory ADA lawsuits
and increase compliance with the ADA by giving businesses the
opportunity to fix ADA violations instead of dragging them into
litigation. Lawsuits would be reserved for those instances in
which offenders are truly unwilling to make appropriate
changes. This would also allow legitimate claims to move
through the legal system sooner and faster.
Moreover, requiring notification before filing an ADA
lawsuit will benefit our economy. Many small businesses have
been forced to close because of accessibility lawsuits and
others have unnecessarily spent thousands of dollars in
litigating claims. Small businesses are critical to America's
economic recovery and should not be burdened by unnecessary or
predatory litigation. The ACCESS Act whould protect the
interests of the disabled and of America's small businesses and
ensure that ADA violations can be remedied without the need to
file a lawsuit, if possible.
The ACCESS Act preserves the rights of the disabled and
fixes the ADA so that professional plaintiffs are not able to
exploit this landmark civil rights law for their own private
gain rather than for the benefit of the disabled.
And with that, I would now yield to the Ranking Member of
the Subcommittee, Mr. Nadler, for his opening statement.
[The bill, H.R. 3356, follows:]
__________
Mr. Nadler. Thank you, Mr. Chairman. We have been here
before. Twelve years ago, movie star and California business
owner, Clint Eastwood, testified in support of legislation that
would require pre-suit notification before a claim could be
filed under Title III of the ADA. And we have had legislation
on this introduced in every Congress since then, including this
one.
Mr. Eastwood testified passionately about the need for pre-
suit notification to prevent business owners, like himself,
from being victimized by unscrupulous lawyers. The plaintiff
and lawyer in his case actually had notified him of the alleged
violations at his resort before filing suit.
Proponents of pre-suit notification ignore the fact that,
as in Mr. Eastwood's case, a demand letter does not always
work. Not every business owner will gladly make changes to
increase accessibility. Nor is it clear why a letter should be
required where a violation is obvious or where 22 years after
enactment of the ADA, a public accommodation has taken
absolutely no steps to bring itself into compliance with the
law.
Pre-suit notification is a virtual get out of jail free
card for every public accommodation in America. By requiring a
person with a disability to notify a public accommodation
before bringing legal action to enforce the law, bills like
H.R. 3356 remove the only incentive for voluntary compliance
with the ADA, namely the risk of being sued and having to fix
the problem and pay reasonable attorney's fees.
Title III of the ADA does not allow private parties to sue
for money damages. Only an order to remedy the ADA violation
and reasonable attorney's fees are possible, and then only if
the plaintiff is a prevailing party; that is to say, that the
defendant is found to have violated the law.
By removing the risk of litigation, H.R. 3356 would send a
clear and devastating message to every public accommodation in
America that there is no need to comply voluntarily with the
ADA. Instead, wait and see if you ever get a demand letter.
Twenty-two years after passage of the ADA, many businesses
remain inaccessible to persons with disabilities. Yet instead
of talking about how to improve compliance, here we are again
considering a bill that further excuses noncompliance.
Proponents claim that pre-suit notification is needed to
stop unscrupulous lawyers who have made a so-called cottage
industry out of filing lawsuits in order to force businesses
into quick cash settlements, and who have no intention of
increasing access for persons with disabilities. But let us be
clear about one thing. There simply is nothing unethical or
inappropriate about suing a business that is violating the law.
The filing of a single or even multiple suits alleging
violations of the ADA or State disability laws says nothing
about the underlying merits of that, or those suits, or the
intent of the parties involved. Moreover, there is absolutely
no reason that the mere filing of a lawsuit should result in
years of costly litigation. A defendant who is sued under Title
III of the ADA responds to a summons by agreeing to remedy the
problem, as we are assured would be the case of only pre-suit
notification were required, faces only the cost of the repair
itself and reasonable attorney's fees. Courts decide every day
whether a fee request is reasonable, and will not approve an
award that is disproportionate to the actual work done.
While some might prefer that attorneys who enforce the law
were to get nothing for their work, thus eventually forcing
them out of business entirely and reducing the possibility that
those who violate the law will ever be brought to justice,
Congress decided to allow reasonable attorney's fees with the
understanding that doing so is necessary to enable private
lawyers to help enforce the ADA.
Where, as may sometimes be the case, the lawyer actually
does engage in affirmative misconduct, for example, by
providing misleading information, by making factual or legal
arguments in bad faith, or by unreasonably and vexatiously
prolonging the matter, courts have the tools they need to
sanction this misconduct, and often do so. Courts in California
and Florida, for example, have sanctioned lawyers who have
brought ADA and States law claims where the underlying
allegations were not sufficiently supported or where the
lawyers misled defendants. The courts have required these
lawyers to pre-file any future suits with the courts or in
other cases have denied attorney's fees and damages available
under some States' laws.
It is an unfortunate reality that some lawyers may act
inappropriately at least some of the time, but this is not
limited to lawyers who represent plaintiffs. One of our
witnesses here today, Mr. Peters, whose practice consists of
defending against ADA and States disability lawsuits, was found
to have ``acted intentionally in bad faith with an improper
purpose and with an intent to harass the plaintiffs'' in one
case. Explaining why sanctions against him were warranted, the
district court explained that Mr. Peters, ``unreasonably and
vexatiously multiplied the litigation, which resulted in excess
costs, expenses, and attorney's fees to the other litigants,''
and that, ``this is the essence of frivolous and bad faith
litigation.''
I would like to submit the District Court's ruling in that
matter, along with the 9th Circuit's order affirming sanctions
against Mr. Peters for the record.
Mr. Franks. Without objection.
[The information referred to follows:]
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Mr. Nadler. Thank you. This makes clear that the courts can
and do handle complaints about attorney misconduct, and the
notion that the mere filing of lawsuits alleging noncompliance
with the ADA is itself an indicator of bad faith or frivolous
litigation should be rejected. Indeed, as courts that have
imposed sanctions against vexatious litigants have been careful
to recognize, given the fact of widespread noncompliance with
the ADA, lawsuits themselves are not an evil to be avoided, but
the only way of enforcing the ADA and, thus, of achieving its
goals.
As the 9th Circuit said in Mosley v. Evergreen Dynasty,
``For the ADA to yield its promise of equal access for the
disabled, it may indeed be necessary and desirable for
committed individuals to bring serial litigation, advancing the
time when public accommodations will be compliant with the
ADA.''
To the extent that continued noncompliance with the ADA is
leaving businesses vulnerable to litigation, the appropriate
solution is to beef up technical assistance or otherwise
determine what more is needed to ensure affirmative voluntary
compliance. We should not enact legislation like H.R. 3356,
which seeks to excuse every public accommodation whether large
or small, and even when knowingly and deliberately violating
the law, from taking any steps to comply with the law until and
unless it receives a specific enough demand letter.
With that, I look forward to hearing from our witnesses and
yield back the balance of my time.
Mr. Franks. Thank you, Mr. Nadler. And without objection,
other Members' opening statements will be made part of the
record.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Ranking Member, Committee on
the Judiciary, and Member, Subcommittee on the Constitution
Today we revisit the question of enforcement of the Americans with
Disabilities Act. Although we have long had a bipartisan consensus in
favor of vigorous ADA enforcement--going back to the administration of
the first President Bush--the legislation we will examine today would
undermine the most effective enforcement mechanism Congress created:
the private right of action.
We have been through this before. I have had to sit though numerous
hearings in which some members have ignored the widespread non-
compliance with the ADA and the exclusion of persons with disabilities
from too many places in our society, and instead preoccupy themselves
with the complaints of businesspeople who, by their own admission, have
violated the law.
We live in a topsy-turvy world, and the rights of those least able
to defend their rights, rather than the law-breakers, have become the
target. That's wrong.
Compliance with the ADA is largely voluntary. While the Justice
Department does have enforcement power, it lacks the resources to reach
the many facilities that are out of compliance, and the law grants them
the power to enforce the act in a limited number of cases.
As a result, according to the National Council on Disability,
``many public accommodations are not in compliance with Title III and
are not, in fact, accessible.''
Too many businesses are simply unwilling to comply with the law,
which requires businesses to remove architectural barriers that are
``structural in nature, in existing facilities . . . where such removal
is readily achievable.'' The ADA defines ``readily achievable'' as
``easily accomplishable and able to be carried out without much
difficulty or expense.'' This ``readily achievable'' standard has been
the governing legal principle for increasing access to existing
facilities since the ADA's passage 22 years ago. It ensures that,
rather than having a one-size-fits-all requirement, businesses have
flexibility to determine what steps are possible based on their size
and resources and the prospective cost of an improvement. A small,
family-owned business does not have to take the same steps as a large
commercial chain.
I recall that businesses fought for this standard during passage of
the ADA because of its flexibility; with flexibility also comes
responsibility for determining, with guidance and rules from DOJ, what
steps are possible.
After 22 years, the fact that many businesses have not undertaken
that basic step is simply intolerable, and legislation that would
further undermine the promise of the Americans with Disabilities Act is
simply unacceptable.
As we discuss this issue, I hope we can keep these points in mind.
First, providing property owners with this kind of get-out-of-jail
free card simply means that they can ignore the law with impunity. If
they ever are caught, they can simply do what they should have done all
along. There is absolutely no down side to failing to comply. You will
more than likely get away with it--as the report of the National
Council on Disability and other research on non-compliance
demonstrate--and if you get caught, your only cost is to comply.
Second, this legislation is unnecessary. The much-touted problem of
``drive-by law suits'' is overblown. To the extent that it is a
problem, it is limited to a few states that allow for monetary damages.
That is an issue for the states with those laws, and does not demand
radical changes to the ADA.
Many of the examples of fraudulent suits and other misconduct has
nothing to do with the ADA or with the notification law. Those are
problems that can come up in all civil litigation, and are not limited
to ADA cases. Existing law does, however, provide remedies when parties
lie, or engage in abusive conduct.
When faced with this problem courts have sanctioned parties found
to be ``vexatious litigants,'' have refused to award attorneys fees
where a lawyer failed to serve a defendant with a demand letter prior
to filing suit, and have dismissed cases for a lack of standing where
the plaintiff cannot allege harm.
It is, again, not a question of notification, but of enforcing the
basic rules governing conduct in all civil cases as the attorneys on
the panel are, no doubt, well aware.
Third, there are ample resources to assist those businesses that
genuinely want to comply with the law. There are substantial tax
credits and deductions--up to 50% in credits for eligible expenditures
to increase accessibility in a year, up to a maximum each year of
$10,250. Section 190 of the Internal Revenue Code provides a tax
deduction of up to $15,000 per year for removal of architectural
barriers. Small businesses can use these incentives in combination if
they qualify under both sections.
The Justice Department, as well as many state and local
governments, and non-governmental organizations, provide technical
assistance so that those who, in good faith, wish to comply, can do so.
Compliance with the law should not be a guessing game. The point of the
ADA is not to encourage litigation, but to encourage compliance.
We should never forget that the reason Congress enacted the ADA,
and why it has enjoyed such broad bipartisan support over the last 22
years, is that we are committed as a Nation to promoting inclusion. Too
often, access to jobs, stores, restaurants, and other facilities that
the rest of us simply take for granted are denied to those with
disabilities.
When we fail to guarantee access to the disabled, they remain
excluded from society and marginalized. There is no longer any question
about the consequences of this exclusion, and a decent society must
never tolerate it.
So, we should be working to promote greater compliance, not to
undermine one of the few mechanisms available to assure greater
compliance. To the extent that there are bad actors out there, we
should be looking to the existing mechanisms available to punish
misconduct in, and misuse of, our courts. If we need to ensure that
those mechanisms are more effective, we can and should certainly
discuss that. But undermining the available remedies for disabled
people everywhere in all situations by giving property owners in
violation of the law a free ride is not the way.
I join the distinguished Chairman in welcoming our witnesses today,
and I look forward to their testimony.
I yield back the balance of my time.
__________
Mr. Franks. Our first witness is Representative Dan Lungren
of California. Mr. Lungren represents California's 3rd
Congressional District. He was first elected to Congress in
1978.
From 1991 to 1999, Mr. Lungren served as Attorney General
of California. In 2005, he returned to Congress and is
currently the Chairman of the Committee on House Administration
and is a Member of the Judiciary and Homeland Security
Committees.
Mr. Lungren, your witness statement will be entered into
the record in its entirety. And I would now recognize
Representative Lungren for 5 minutes to make an opening
statement.
TESTIMONY OF THE HONORABLE DANIEL E. LUNGREN, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Lungren. Thank you very much, Mr. Chairman. Thank you,
Mr. Ranking Member and other Members of the Subcommittee. Since
my statement will be entered into the record, let me just say a
couple of things.
One is that my staff and I have spoken with dozens of small
business owners in California, restaurants and other small
business enterprises. And the number one fear that they
expressed to me is the fear of abusive ADA lawsuits. They tell
me that they want as many customers as possible to come to
their store. It is not in their business interest to put up
barriers of entry for people to come in.
But, in fact, the practice in California, and especially my
district, where you have had thousands of lawsuits that have
been filed, in most cases, without any specificity. And the
claim that is being made or the grievance that is being
presented without specificity gives no opportunity for the
owner/operator to be able to respond in a meaningful way and
thereby do what we really want this law to do, actually result
in access.
My bill does nothing to change the underlying ADA. Rather,
it requires that the grievant put in writing with sufficient
specificity that the reasonable owner/operator understands he
is in violation of the ADA. It then gives that individual an
opportunity to respond, in writing, within a specific period of
time, with specificity as to how they are going to handle it.
And then the third part is that there would be a period of time
in which the owner/operator can actually make those physical
changes.
Now if the owner/operator does not do these things, it
seems to me the grievant is in a remarkably enhanced position
as they go to court. If I am a Federal judge, the fact that the
owner/operator basically did not take this seriously, and if
there is any basis whatsoever for finding that there is a
violation of the ADA, that puts the defendant, I think, in a
very, very poor position. In fact, that would be the best
mechanism by which you could achieve access sooner rather than
later.
I am aware of a sandwich shop that was a defendant in an
ADA lawsuit in which the litigant never visited the shop, but
used Google maps to determine that the disability or handicap
signage was missing. The plaintiff in this case sued for trauma
and embarrassment as a consequence of not being able to access
a business that the plaintiff never visited.
In another case that has come to my attention recently, a
locksmith owner in my district, who himself has a disability,
closed his shop in mid-April 2012 to undergo surgery. When he
came back a month later to reopen, he learned that a generally-
stated ADA lawsuit had been filed against his business. His
attorney advised him that at his age it would probably take a
number of years for them to resolve it. The cost would be
excessive. He never opened his doors again. The business owner
called this extortion. Other tenants in the building may be
told that they have to move as well. That is not what the ADA
was intended to do.
Now, the Ranking Member referred to this as a Republican
proposal. There is bipartisan concern about the ADA. In April
2012 letter, U.S. Senator Dianne Feinstein wrote to California
Senate President Pro Temporary Darrell Steinberg and stated,
``Today we are still witnessing an alarming rate of demand
letters that are being sent to small business owners demanding
settlements in the range of $5,000 to $8,000. The payment of
this settlement amount, combined with the cost of hiring a
lawyer to respond to a demand letter, can easily add up to more
than $15,000 in costs for a small business owner. As you know,
these unforeseen costs can be devastating to the mom and pop
stores that are struggling to remain in business.''
It is not, therefore, a partisan issue. There is an effort
going on at the State level in California to try and respond to
this in some enlightened way.
So, I hope this not viewed in a partisan way. I hope that
Members will understand that there is a need to tweak this law
to make it more effective to reach what I think we all, on a
bipartisan basis, want. And that is access that has been
established, not long litigation.
The abuse falls disproportionately on small businesses. In
my State, it falls disproportionately on minority-owned
businesses, which happen to be, in most cases, the ones that
have less capital than others. Oftentimes, it falls on those
operators whose first language is not English, and frankly,
they have difficulty responding to a generalized letter of
complaint. And really the demand that they get is pay up or you
will suffer, and that is what we are trying to get away from.
Again, we do not in any way change the underlying
proposition of ADA. We attempt to try and change the process so
that there will be more expeditious resolution of problems
which exist. Everybody admits that there are too many
violations out there, technical and otherwise. The question is
how do you handle that? How do you provide incentives for
people to move toward access as opposed to a standoff? And if
you require a specificity such that there can be, under the
reasonable person standard, notice as to what the problem is,
there is a far greater chance that you are going to have a
resolution of that problem.
Simply, that is what this bill does. And I would say it has
strong support from the small business community. I hope that
we can reach a bipartisan accord on this. And I thank you for
listening.
[The prepared statement of Mr. Lungren follows:]
Prepared Statement of the Honorable Daniel E. Lungren,
a Representative in Congress from the State of California
Mr. Chairman, first, I would like to thank you for this opportunity
to speak on behalf of my legislation--H.R. 3356, the ACCESS Act.
The Americans with Disabilities Act (ADA) is a landmark civil
rights law. The passage of the ADA was a watershed moment in American
history because our nation stood up to protect and defend the dignity
of persons with disabilities and their rights to accessibility in our
Nation. This is what the ADA was intended to do--to ensure that public
accommodations will be accessible to all Americans.
Unfortunately, however, across the nation and especially in my
district in California, thousands of lawsuits have been filed under the
ADA in which litigants have the sole intent of obtaining settlement
money from small business enterprises. These litigants usually have no
intent whatsoever of obtaining increased accessibility for persons with
disabilities. In these lawsuits that abuse the Americans with
Disabilities Act, litigants routinely make general allegations against
businesses about non-compliance with the ADA. Business owners all too
often find themselves unaware of the specific nature of the allegations
against them. The litigants then quickly seek to settle for thousands
of dollars while usually not pursuing that business' actual compliance
with the ADA. These kinds of abusive lawsuits are based upon a desire
to achieve financial settlements. In the vast majority of these cases,
they do not seek to achieve the facility modifications necessary to
provide equal access to places of public accommodation.
What is the impact of these lawsuits that abuse the Americans with
Disabilities Act? Professional litigants make money. ADA compliance is
not truly enforced because these cases often never make it to court.
Unsuspecting businesses in my state are forced to close or temporarily
shut down because of the inability to pay settlements or insufficient
time to make the necessary improvements. Nobody wins. In one
particularly egregious example, one plaintiff has filed over 2,000 of
these kinds of lawsuits. The ADA was never intended to be a money
making machine for the few while failing to increase accessibility for
the many.
My staff and I have spoken with dozens of small business owners in
California--restaurants and other small business enterprises. What is
the number one threat they fear--abusive ADA lawsuits. They tell me
they want as many customers as possible. They tell me they try hard to
comply with the ADA because they do not want to turn anyone away,
especially in this economy. But they believe these abusive ADA lawsuits
are not what the ADA was intended to do.
With thousands of these lawsuits nationwide and in my district in
particular, the number of egregious lawsuits are too numerous to count.
I have been told of a music store that was the defendant in an ADA
lawsuit in which the complaint failed to state any violations specific
to that store. What was the primary issue of the lawsuit? The number of
handicapped parking spaces in the parking lot despite the fact that the
plaintiff had not ever visited the music store. I am aware of a
sandwich shop that was the defendant in an ADA lawsuit in which the
litigant never visited the shop but used Google maps to determine that
the handicapped signage was missing. The plaintiff in this case sued
for trauma and embarrassment as a consequence of being unable to access
a business that the plaintiff never visited. In another case, a
locksmith owner, who himself has a disability, closed his shop in Mid-
April 2012 to undergo surgery. His shop is located in a building that
is approximately 100 years old. When he came back a month later to
reopen he learned that an abusive ADA lawsuit had been filed against
his business. His attorney advised the owner, age 66, to never open his
doors again. The business owner calls it ``extortion.'' Other tenants
in the building may be told they have to move. This is not what the
Americans with Disabilities Act was intended to do. It was intended to
increase accessibility for all Americans with disabilities not to
enrich the few.
There is bipartisan concern about abuse of the ADA. In an April
2012 letter, U.S. Senator Dianne Feinstein wrote to California Senate
President pro Tempore Darrell Steinberg and stated:
``[t]oday, we are still witnessing an alarming rate of demand
letters that are being sent to small business owners demanding
settlements in the range of $5,000-$8,000. The payment of this
settlement amount, combined with the cost of hiring a lawyer to respond
to the demand letter, can easily add up to more than $15,000 in costs
for a small business owner. As you know, these unforeseen costs can be
devastating to the ``moms and pop shops'' that are struggling to remain
open for business.''
Though discussing state legislation and not commenting on my ACCESS
Act specifically, Senator Feinstein agrees that a new right to cure
approach is needed to solve this problem. She continues:
``Thus, I believe it is critical that a 90-day right to cure be
enacted to help small businesses respond to this problem and,
once and for all, to end these abuses by certain aggressive
attorneys and predatory plaintiffs. I strongly urge you to
reconsider your position on this approach. A business owner's
ability to cure an ADA violation within 90 days would give that
owner the opportunity to comply with the law without the
wasteful expense of a lawsuit, which in my view would represent
a win both for people with disabilities and for California
small businesses.''
Mr. Chairman, I would like to submit Senator Feinstein's April 13, 2012
letter for the record.
My legislation, H.R. 3356, the ACCESS (ADA Compliance for Customer
Entry to Stores and Services) Act of 2011, ensures greater compliance
with the Americans with Disabilities Act while protecting small
businesses from abusive lawsuits.
The ACCESS Act would serve the underlying purpose of the ADA by
creating a legal structure which enhances the prospects for real
corrective action. Under my legislation, any person aggrieved by a
violation of the ADA would provide the owner or operator with a written
notice of the violation specific enough to allow the owner or operator
to identify the barrier, make the needed changes, and thus become
compliant. Within 60 days the owner or operator would be required to
provide the aggrieved person with a description outlining improvements
that would be made to address the barrier. The owner or operator would
then have 120 days to remove the infraction. The failure to meet any of
these conditions would allow the suit to go forward.
The ACCESS Act will refocus the ADA on what it was meant to do--
ensure that public accommodations will be accessible to all Americans.
Increasing public accommodations for persons with disabilities is not
inconsistent with the need to protect small business owners from
lawsuits that abuse the purpose of the Americans with Disabilities Act.
The ACCESS Act demonstrates that we can indeed do both.
__________
Mr. Franks. Well, thank you, Mr. Lungren. And I will now
begin the questioning by recognizing myself for 5 minutes.
Mr. Lungren, you have been an attorney in private practice.
You served as an attorney general of California. And I am not a
lawyer, but it would seem to me that as a matter of
professionalism and courtesy, a lawyer should at least make
some attempt to work out a dispute prior to going to the
trouble of filing a lawsuit.
Does your bill require anything more than the common
courtesy of asking a business to fix a violation so that a
lawsuit does not need to be filed?
Mr. Lungren. The only thing I would say is that it requires
a level of specificity so that under a reasonable person
standard, one would be put on notice as to what the violations
of the ADA are. And that would be my only addendum to your
statement.
Mr. Franks. Well, I think your legislation is a common
sense solution to predatory ADA lawsuits, and it is consistent
with other civil rights laws that require notice before
lawsuits can be filed. However, those opposed to your
legislation argue that if this bill becomes law, the rights of
the disabled will be threatened. Do you believe that your bill
will threaten the rights of disabled individuals to use public
accommodations?
Mr. Lungren. If my bill in any way changes the underlying
proposition of the ADA, you might be able to make that
argument, but it does not. What it does is change the process
and provide an incentive for resolution of the problem in a
specific, practical way. And it seems to me rather than
undercutting the rights of anybody, it enhances the rights of
individuals who are disabled in one fashion or another.
I guess I would call it a common sense approach to
improving the underlying bill such that you can resolve the
problem rather than extend the problem or never get
satisfaction to a complaint.
Mr. Franks. Well, thank you, Mr. Lungren. And I am going to
now yield to Mr. Nadler for 5 minutes.
Mr. Nadler. Thank you. I understand and somewhat even
sympathize with what you are saying in some cases, I suppose.
My problem is we do not permit damages here. If someone has not
complied for 20 years and is found not have complied, the only
remedy we have is comply. Spend the money to make your business
accessible.
Now in various other things we allow damages. Here we do
not. But if that is the only remedy--get into compliance now--
order an injunctive action, in effect, to get into compliance
now. And you cannot bring a lawsuit even to do that until you
have had a letter, which presumably has not been reacted to
adequately, what incentive is there for someone, other than
pure good will, what incentive, what legal or monetary
incentive is there for a business owner to get into compliance
before he gets a demand letter?
Mr. Lungren. Well, thank you for the question. I would say
a couple of things. One is right now there are demand letters
oftentimes made, but they are of a general nature. They do not
put the person on notice as to how they could take care of it
so that there is not the incentive to try and take care of it
with a sense of immediacy.
Secondly, I would argue, having been a litigator for a
number of years, that if a business called me up and said we
had this letter that told us what we needed to do, we have
ignored this letter, frankly, I do not want to take it
seriously. I would either tell them find another attorney, or I
would say, let me tell you what your circumstance is. You are
going into Federal court, and the first thing the judge is
going to read in the file is that you were put on notice with a
degree of specificity so that any reasonable person could
figure out what the problem was, and you ignored it. I am going
to tell you, you are in trouble here.
So I would suggest it actually gives the plaintiff an upper
hand in a case where there has not been a good faith attempt to
try and resolve the problem. And, again, I say that as someone
who has litigated----
Mr. Nadler. I understand that. And certainly if I were the
attorney for a plaintiff, I might very well start with such a
letter. But, again, what incentive, if your bill passed, would
there be for anyone to bother with compliance at all until he
received such a letter?
And let me ask you one other question as you answer that.
What would you think of a proposal to say, okay, we will enact
your bill, but we will amend it to include some sort of
sanction, maybe monetary sanctions, if you should have brought
yourself into compliance, if you did not have to be a genius
not to know that you were not in compliance and you did not do
it before the letter.
In other words, the problem right now is that your letter,
I think, would completely eliminate any incentive for someone
to spend money to bring himself into compliance before that
letter was received. And maybe if we had the letter, but we
still had some sort of sanction for not having acted if you
knew you should have acted beforehand, that would be more
reasonable. What would you think of that?
Mr. Lungren. Well, first of all, I would just say we are
talking about my bill versus the status quo. For the status quo
now, one would have to ask what is the incentive for someone to
try and take care of a violation of ADA prior to legislation
being filed. Ours is a predicate to the litigation, but it does
not stop the litigation from going forward.
Mr. Nadler. Excuse me, Dan. The incentive now under the
status quo is that you may be sued and be responsible not only
for the expense of getting into compliance, but for attorney's
fees.
Mr. Lungren. Sure.
Mr. Nadler. That is a fairly weak incentive perhaps, but it
is an incentive.
Mr. Lungren. Well, you still have that as it exists now.
Mine, I think, actually puts some robustness behind the threat
of a lawsuit because you have got to take seriously if, in
fact, they have given you notice. So I would say it adds to an
incentive.
The fact of the matter is, and I think you will hear this
testimony, there are, for instance, 100 specific standards that
deal with a disabled restroom. There are, I believe, something
like 2,400 or 2,500 separate standards, physical standards,
that deal with operating a business that comes under the aegis
of this statute.
To suggest that people are sitting around consciously
violating these things, I think is incorrect. And the idea that
they have 20 years to do this--oftentimes we are talking about
businesses that have just set up. Someone goes in. They are
starting a small business. And this happens to be the case, and
it goes to one of the points you made earlier about a lack of
full information. They may have, and we have had instances of
this, people going to the local building department of their
local jurisdiction and being told, oh, yeah, you have met the
standards, or, you know, under the law, there is a grandfather
clause, which there is not.
And I remember when I was attorney general, one of the
things we attempted to do was to try and help local
jurisdictions in California understand precisely what the laws
were. We had a case where the City of Pasadena and the Rose
Bowl were undergoing a major renovation of the Rose Bowl. Part
of it was actually a replacement of their press box. And what
they intended to do with respect to accommodation for disabled
was insufficient for the law.
We had to go down as the office that has overall
responsibility in our State and basically demand that they make
the change and make it within a very short time period. They
were gearing up for either the World Cup in soccer or the Super
Bowl, I forget which. But we did that. Now, if you are going to
ask me did they intend to violate the law? No, they did not
understand even with their own building department, even with
the information they had.
So, in many cases you have these businesses that, frankly,
are unaware. And I am not saying they are all that way, but I
am saying the vast majority, in my experience, are that way.
So, how do we get from there to doing what we want to do, which
is to get access to places of public accommodation?
It seems to me creating a path where there is a greater
incentive to work it out sooner rather than later is the way to
do it. Now that is my approach to my bill. You may disagree
with me, but that is the intent behind it.
Mr. Franks. Thank you, Mr. Nadler. And I now recognize the
distinguished gentleman from Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I want to thank the
gentleman from California for bringing the bill. This seems
like such pure common sense to me, it is a little amazing that
we have sat around here for over 2 decades before something as
simple as this has come forward.
But I am curious, and I may be missing it in your
testimony, how does that first notice come? If you have a
disabled individual who is aggrieved by this, how does that
first notice come to their attention?
Mr. Lungren. They would send a written notice, most likely
a letter, to the individual owner or operator of the place of
public accommodation. And in there, they would be required to
have sufficient specificity such that the person receiving it,
under a reasonable person standard, which is a common law
notion, reasonable person standard would be able to determine
what the violation of the Act is. And then that person would be
given a 60-day period of time to provide the aggrieved person
with a description outlining the improvements to address the
barrier. And then they would have 120 days in which to take
care of it, then actually go forward.
Mr. King. Would this likely be the form of a letter from
the attorney of the aggrieved person then?
Mr. Lungren. It would not have to be an attorney. It could
be an individual so that they could describe, as I say, with
particularity, as to what the violation is.
Mr. King. I am just wondering because I do some of my own
work that way without going to the attorney. But if I sent a
letter to someone and they ignored that letter, then is it
likely it would be a certified letter in order to prove that
they received it? I am just trying to figure out how do you
establish how the clock starts to tick on the first 60 days.
Mr. Lungren. Upon receipt of the letter. I suppose if you
wanted to be careful, you could make sure it was certified. You
could also hand it to them. I mean, there are any number of
ways of doing it.
Mr. King. Okay. But you have determined that, and that has
already been a legal pattern, so I understand that.
I am just thinking about the statement that you made about
the proprietor who got back from his surgery and decided that
he could not continue his business because the cost to recover
the loss of the investment was too great. And I am just
thinking of a community in my district that had about a lot and
a half alongside a lake. For years they provided a dock for
public access in a tiny little town with hardly any tax base,
but it was a convenience thing.
And there was a little accident down alongside that
resulted in just a few stitches. And in the ensuing litigation
that came, the city council just decided that is it, we are not
going to allow access to this any longer because the liability
is too great.
I just add that to your statement on what are we missing in
this country, that we do not even know we are missing, because
of the heavy burden of unnecessary litigation, among other
things, and heavy regulation, and a whole list of things.
I just think the richness of the life that we have in this
country could be greater if we were not intimidating and
discouraging people, especially small business folks. I started
a business up in 1975, and my biggest fear then was how do I
meet with all the risks of regulation and potential litigation?
My oldest son owns that company today. We are in our 37th
season. But, it has gotten greater and greater.
The country has changed. The culture has shifted. We have
fewer entrepreneurs per capita because of the weight of
regulation, the weight of the threat of litigation. I just
would point out that I think in those days, when Mr. Lungren
and I and many others in this room were growing up, we would
have an idea, and someone might say, well, I have checked my
moral compass now, but there is no law against it, let us go
ahead. And today it is entirely different. Now young people
say, no one else is doing this, we have to get permission to go
ahead, so let us just forget it.
I just think our society is not as rich as it might have
been otherwise. I think we are losing entrepreneurs. We are
losing competition in business. Our costs are going up, and we
have a lot of burden in this economy that is not productive,
that does not help the quality of life. It just churns dollars,
and intimidates people, and reduces the quality of life.
I think this bill adds to our quality of life, and anybody
that can resolve this issue within 60 to 120 days is a well-
intentioned person. I do not see a down side to it at all, and
I fully support it. I would yield to the gentleman to say
anything he would further like to say.
Mr. Lungren. Well, I just say there is a famous case in
California dealing with this. The Salary Shop made saddles. I
think it was also a feed store. And they had actually been
pioneers in working with those who suffered from disabilities
in using horseback riding as a therapy. They were sued because
it was an older store, and they had a handicapped access in the
side of the back, not in the front. They were sued, and yet
they could never get the person suing them to tell them
precisely what it was they wanted them to fix.
If you question the good faith of those folks, you know,
were they folks that were not interested in assisting the
disabled? Well, I mean, they had been pioneers in helping with
therapeutic riding, which would suggest that they wanted to
assist.
That may be an extreme example, but that is an example of
the kind of thing that I think most of us would say is contrary
to common sense. What I am trying to do here is to figure out a
common sense process change that does not change the underlying
law, but would get us to resolution sooner rather than later.
Mr. King. It is common sense. Thanks, Mr. Lungren. Thanks
for bringing it. I yield back.
Mr. Franks. Thank you, Mr. King. And I would now yield to
Mr. Scott from Virginia.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Lungren, you know, if we are going to live in a society
where those with disabilities have access to public
accommodations, there is going to be some inconvenience to
people. And obviously, as you have suggested, it ought to be
with common sense.
What should the standard be? The present standard is that
any change, in order to get into compliance, that would be
required has to be easily accomplishable and able to be carried
out without much difficulty or expense. Is that the standard
that put your constituent out of business?
Mr. Lungren. That is a standard that has been interpreted
by a number of different courts, and some refer to that as a
small business exception. It has not proven to be a small
business exception.
If someone makes that claim, as I understand it, it then
makes it relevant in discovery for the plaintiff to be able to
see the books of the operating entity, perhaps going back any
number of years to prove that relative to the amount of money
they have, this would fall within that definition. And, that
often leads to a tremendous amount of litigation.
I think we all agree that it ought to be something that is
reasonably achievable, that it is not unduly costly. So, I
think that is a common sense portion of the law, but it does
not appear, at least in the experience of those people that
have come to my attention in California, to have worked in the
way that we all would have thought it would have worked.
Mr. Scott. Well, if easily achievable and able to be
carried out without much difficulty and expense is too
stringent a standard, what kind of standard would you suggest?
Mr. Lungren. I am not suggesting to change the standard.
What I am suggesting is that we have preliminary litigation as
an opportunity to resolve the issue such that the priority is
not put on litigation, but the priority is put on
accommodation.
Mr. Scott. So you are not suggesting we change the standard
at all.
Mr. Lungren. No, I am not suggesting we change the
standard.
Mr. Scott. And the bill, as I read it, only applies to
entry. What about everything else that is covered by the ADA?
Mr. Lungren. Excuse me, I am sorry. I cannot hear you.
Mr. Scott. As I read your bill, it only speaks to the
barrier to entry into a public accommodation. How about
anything else that is covered by the ADA?
Mr. Lungren. This is supposed to deal with the issue of
removing structural barriers to entry as the ADA requires
because that seems to be the locus of complaints that we have
received, claims of structural barriers without specificity as
to what they are.
I mean, you and I would talk about structural barriers. It
goes to those standards that have been established, as I said.
I believe there are 2,400, 2,500 of them in various regulations
with respect to physical requirements. And they are generally
known as structural barriers.
Mr. Scott. Thank you, Mr. Chairman. I yield back.
Mr. Franks. I thank the gentleman. Well, Mr. Lungren, we
are out of questions here. And I want to thank you again for
testifying today. You are excused if you would like, but
otherwise you are certainly welcome to join us on the dais
here. And I would like to go ahead and invite you to do that,
and also invite the members of our second panel of witnesses to
come forward.
I want to thank all of you for appearing before us today.
Our first witness on this panel is Lee Ky. Ms. Ky operates and
manages two donut shops owned by her mother in Reedley and
Stockton, California. Ms. Ky was born with cerebral palsy and
has been in a wheelchair her entire life. Her family's two
business have both been the subject of abusive ADA lawsuits. In
2010 her family's Reedley shop, where Ms. Ky regularly works
alongside her employees, was sued for alleged violations of the
ADA that were substantially, but not exclusively, based on
signage not being placed in exactly the right position or the
failure to have the exact number of signs called for under the
applicable statute. Ms. Ky was not given any notice of the
alleged ADA violations before the lawsuit was filed.
Our second witness is Andy Levy, a named partner with the
law firm Brown, Goldstein & Levy, where his practice focuses on
civil, criminal, and appellate litigation. He is a fellow of
the American College of Trial Lawyers, and is listed in Best
Lawyers in America in 5 categories. Mr. Levy is a longtime
member of the adjunct faculty at the University of Maryland
School of Law, and his publications include the books, Maryland
Evidence: A Courtroom Manual and Appellate Practice for the
Maryland Lawyer.
And our final witness is David Peters, CEO and general
counsel at Lawyers Against Lawsuit Abuse. Mr. Peters has been
consulted in more than 900 ADA accessibility lawsuits
throughout the United States and has served as lead counsel in
over 300 in California alone. Through his work he has exposed
over 600 false and/or inappropriate claims in ADA accessibility
lawsuits. Mr. Peters has written extensively and has appeared
in numerous national television and print news features on the
problem of litigation abuse.
Each of the witness' written statements will be entered
into the record in its entirety, so I would ask that each of
you summarize your testimony in 5 minutes or less. To help you
stay within that time, there is a timing light on the table.
When the light switches from green to yellow, you will have 1
minute to conclude your testimony. When the light turns red, it
signals that the witness' 5 minutes have expired.
And before I recognize the witnesses, it is the tradition
of the Subcommittee that they be sworn, so please raise your
right hand to be sworn.
[Witnesses sworn.]
Mr. Franks. Thank you. And I would now recognize our first
witness for 5 minutes. And, Ms. Ky, if you will make sure that
that microphone is on before you start speaking.
TESTIMONY OF LEE KY, REEDLEY, CALIFORNIA
Ms. Ky. Hi. My name is Lee Ky, and I do live in Reedley,
California. I am here to express my concern regarding the
Americans with Disabilities Act and how it is being used toward
all businesses.
I understand that all businesses must be accessible for all
customers. I have been disabled all my life, and I am grateful
for the President George Bush who recognized the needs for
accessibility for the disabled community when he signed ADA
into the law in 1990.
Public buildings should have accessible entrance doors for
both wheelchairs and stroller users. Public facilities that
have an eating area and restrooms should be accessible with
tables wide enough and high enough for a wheelchair to fit. The
eating area should not be designated just for the disabled
people. I am going to add something right now. At this table
here does not have a sign that say for wheelchair only.
Accessible buildings allow people with disabilities to
become more independent and self-sufficient. As for me, I
appreciate businesses that have accessible facility. But
personally, I do not care if the grab bar is 40 inches or 32
inches on either side as long as it is provided and is there
when I need it.
All business owners have to recognize the needs for all
customers. For example, many businesses provide carpet or
rubber mat at the entrance outside or inside to prevent able-
bodied customers from slipping.
Many business owners are not aware of the changes or new
regulations related to ADA. Not all businesses are up to code
with the ADA guidelines. My mother has to donut shops and has
been sued at both locations for alleged ADA violations. It is
not fair for business owners to receive a lawsuit package not
knowing what it was for, being asked for a certain amount of
money and still having to pay for the corrections.
Prior to filing a lawsuit, notification should be sent to a
business if their facility is not compliant with the ADA. All
businesses should have 30 days to correct minor violations and
120 days for constructional barriers.
In my experience, the carpet or the mats have never become
entangled in my wheelchairs. If the ADA regulations remain the
same and require businesses to remove carpets or mats for the
inconvenience of the disabled people, then the ADA will be
creating a hazard for the able-bodied person. We, the disabled
community, should not be able to feel segregated from the rest
of society. This will create bitterness between the customer
and the business. I do not need a sign to inform me that I am
disabled or where I should sit.
The ADA should concentrate on accessible curbs and ramps
that do not wrap around the building with back door access
only. Generally, when I enter through the back door, I feel
like businesses are embarrassed or ashamed to associate with me
because of my physical limitations. This is understandable to a
point because there are a few disabled individuals, including
lawyers, that make it their personal mission in life to collect
money from businesses that they have never been to. It seems
this handful of people feel that small businesses owe it to
them because of their current situation. This makes the rest of
disableds, who are trying to earn an honest living, look bad.
Throughout my life, people in general are very helpful.
Whenever I am out and about by myself, people offer their
kindness to assist me. Whether I accept or decline is up to me.
I also have a voice. If I need assistance, I can ask for help.
I do not want business owners to cringe when they see me enter
their establishment whether to purchase or to simply use the
restroom.
I would like to see the ADA regulation or Federal laws to
be fair and not be taken advantage of or misused. I believe our
elected officials and city inspectors should inform all
businesses in their district of all new laws and changes.
If this frivolous, nitpicky, and unnecessary money hungry
ADA laws will continue, many businesses will be forced to shut
down because they do not have the money to pay for the lawsuit.
To me, it is reminiscent of mobsters requesting protection
money.
Thank you.
[The prepared statement of Ms. Ky follows:]
Prepared Statement of Lee Ky, Reedly, California
My name is Lee Ky and I live in Reedley, Ca. I am here to express
my concerns regarding the Americans with Disabilities Act and how it's
being used toward all businesses. I understand that businesses must be
accessible for all customers. I have been disabled all my life and I am
grateful that President George H. W Bush recognized the needs for
accessibilities for the disabled community when he signed the ADA into
law in 1990.
Public buildings should have accessible entrance doors for both
wheelchair and stroller users. Public facilities that have an eating
area and restrooms should be accessible, with tables wide enough and
high enough for a wheelchair to fit. The eating area should not be
``designated'' just for disabled people. Accessible public buildings,
allow persons with disabilities become more independent and self-
reliant. As for me, I appreciate businesses that have accessible
facilities. But, personally, I don't care if the grab bar is 48'' or
32'' on either side, as long as it's provided and it's there when I
need it.
All business owners have to recognize the needs of all customers.
For example, many of businesses provide a carpet or rubber mat at the
entrance outside or inside to prevent able-bodied customers from
slipping. In my experience, the carpet or the mat has never become
entangled in my wheels. If the ADA regulations remain the same and
require businesses to remove carpets or mats for the convenience of the
disabled people, then the ADA will be creating a hazard for the able-
bodied person. We (the disabled community) should not be made to feel
segregated from the rest of society. This will only create bitterness
between customers and businesses. I don't need a sign to inform me that
I am a disabled or where I should sit.
The ADA should concentrate on accessible curbs and ramps that do
not wrap around the building with back door access only. Generally,
when I enter through the back door, I feel like businesses are
embarrassed or ashamed to associate with me because of my physical
limitations. This is understandable to a point, because there are a few
disabled individuals (including lawyers) that make it their personal
mission in life to collect money from businesses that they have never
been to. It seems this handful of people feel that small businesses owe
it to them because of their current situation. This makes the rest of
the disabled who are trying to earn an honest living look bad.
Many business owners are not aware of the changes or new
regulations related to the ADA. Not all businesses are up to code with
ADA guidelines. My mother has two donut shops and has been sued at both
locations for alleged ADA violations. It's not fair for business owners
to receive a lawsuit package not knowing what it is for, being asked
for certain amount of money, and still having to pay for corrections.
Prior to filing a lawsuit, notification should be sent to businesses if
their facilities are not compliant with the ADA. All businesses should
have 30 days to correct minor violations and 120 days for construction
barriers.
Throughout my life people in general are very helpful; whenever I
am out and about by myself, people offer their kindness to assist me
whether I accept or decline is up to me. I also have a voice and if I
need assistance I can ask for help. I don't want business owners to
cringe when they see me entering their establishment whether to
purchase or to simply use the restroom. I would like to see the ADA
regulations or Federal laws be fair and not be taken advantage of or
abused. I believe our elected officials and city inspectors should
inform all businesses in their districts of all new laws and changes.
If these frivolous, nit-picky, unnecessary money hungry ADA
lawsuits continue, many businesses will be forced to shut down because
they don't have the money to pay for the lawsuit or correct the
facility. To me it's reminiscent of mobsters requesting protection
money.
__________
Mr. Franks. Thank you, Ms. Ky.
And I would now recognize Mr. Levy for 5 minutes. And you
have got that microphone on, sir.
TESTIMONY OF ANDREW D. LEVY,
PARTNER, BROWN, GOLDSTEIN & LEVY
Mr. Levy. Thank you. Mr. Chairman, Members of the
Subcommittee, thank you for giving me the opportunity to
testify on H.R. 3356. It would amend the ADA to require that
individual defendants be sent a letter before they could be
sued for violating the ADA, even if they had been violating it
for years, and even if the nature of their violations were open
and obvious to all, such as a few steps that could easily be
ramped.
It is particularly ironic that Congress is considering this
bill now when we have thousands of newly disabled veterans who
need the protections promised by the ADA now more than ever.
Passage of the bill will make enforcement of the ADA more
cumbersome and more expensive. Worse, it will eliminate much of
the existing incentive businesses have to attempt to comply
with the law voluntarily. The net result of this is that there
will be much less voluntary compliance.
The dirty little secret of the ADA is that its enforcement
provisions, particularly those relating to public
accommodations, are relatively weak. Virtually alone, among
Federal statutes, the law currently provides no damages for its
violations. Since there are no damages for past violations and,
if this bill becomes law, you cannot be sued until you get
notice, there is zero incentive to comply with the ADA until
you get a letter, if you get one. And then you can comply
without risking any sanction for the many years you waited to
comply. Thus, the proposed amendment effectively creates a
blanket nationwide exemption to the ADA.
In addition, Congress correctly recognized that the Federal
Government does not have the resources to enforce the civil
rights laws entirely on its own. The ADA, like other civil
rights statutes, relies primarily on private individuals for
its enforcement. Lawyers who bring ADA cases already assume the
risk that they will lose and be paid nothing. By making the ADA
increasingly difficult and cumbersome to enforce, you create
additional disincentives for lawyers to take these cases. It is
basic economics. The greater the incentive, the greater the
participation.
The ADA is already a chronically under enforced statute,
and it benefits a group that already has difficulty accessing
legal services. If Congress further reduces these incentives
that do exist, the result will inevitably be less enforcement
of the ADA. If you make enforcement of the ADA rely on charity,
the ADA will die.
One should not need a special invitation to comply with the
law, particularly one that has been on the books for more than
20 years. Moreover, the notion that the epidemic of
noncompliance with the ADA could easily be cured by sending a
letter is, in my experience, a myth. Implicit in the idea of
notification is the idea that most violators are genuinely
unaware that they are violating the ADA, and that upon getting
a letter, they will immediately bring themselves into
compliance. And yet, they cannot or will not take those same
steps after they are sued, that once sued, they are mired in
the courts for years.
In truth, this hypothetical violator, the one who would
have complied if only someone had bothered to let him know that
there were a couple of steps preventing wheelchair access to a
store, assuming he exists, can just as easily comply with the
law after being sued. And under the Supreme Court's Buckhannon
precedent can do so without incurring liability for any
attorney's fees.
Particularly disappointing is the claim that this amendment
is needed to help small business. Nothing in this bill is
limited to small business. Large companies, who routinely
employ lawyers to advise them on what other Federal statutes
require, can certainly do the same with respect to the ADA. As
for small business, the ADA already has several provisions that
protect small businesses from unreasonable requirements, which
Mr. Scott in his questions earlier pointed out.
It is a flexible law. The flexibility was purposely
included as a bipartisan compromise so that businesses of
different sizes and circumstances could be treated differently.
But with flexibility comes responsibility. One cannot fairly
complain that the law's requirements are vague and imprecise on
the one hand and not lift a finger to investigate what it
requires on the other.
In closing, I respectfully submit that passage of this ill-
advised bill is unnecessary and will do far more harm than good
to the cause of equality and accessibility. Thank you.
[The prepared statement of Mr. Levy follows:]
__________
Mr. Franks. Thank you, Mr. Levy.
Mr. Peters, you are now recognized for 5 minutes, sir.
TESTIMONY OF DAVID WARREN PETERS, CEO AND
GENERAL COUNSEL, LAWYERS AGAINST LAWSUIT ABUSE
Mr. Peters. Thank you, Mr. Chairman, Members of the
Subcommittee. Thank you for the opportunity to address these
issues. While I have only been consulted in about 900 ADA cases
around the country, I am in touch with attorneys who have
handled a far larger number than that, so I have knowledge of a
larger group of cases. And I am here to tell you about some of
the troubling practices that we have seen occurring in hundreds
of cases around the country, which have, not surprisingly,
required a number of businesses to close. And I would add that
that should never need to occur in one of these cases.
H.R. 3356 would change all that in that it would require an
almost immediate agreement to make changes with the knowledge
that if those changes were not quickly made, the pre-litigation
notice letter it requires would almost certainly exhibit A to a
costly Federal lawsuit. I think that is about the worst way to
get on the wrong side of a Federal judge is to have such an
exhibit in your lawsuit showing that you were asked to make a
change and you were not willing to make it.
In these very difficult financial times, we need to give
individuals confidence to step forward and create jobs, but
hundreds of my clients have received inaccurate information
from their local building departments, city leaders, and even
legislators being told that they were grandfathered and that
their business did not need to make these changes. Of course,
grandfathering applies to building codes, and these laws
involve civil rights at businesses that are open to the public.
So while it is certainly not true that they were
grandfathered, the answer is that these businesses need
information, not to be blindsided by a lawsuit for changes that
most would gladly make if they only knew of the requirements. A
lawsuit should not be the first notice they get.
In 2005, I personally witnessed at least 7 small businesses
close very quickly in the small mountain community of Julian,
California after an attorney demanded $200,000 as an unlawful
investigation fee after he had spent a weekend there from about
67 businesses in the name of an organization that he created
and represented. The demands were calculated to increase every
day during which they were not accepted.
Since then, we have seen dozens of other businesses close
as a direct result of these lawsuits, in many cases after
making all appropriate changes, just because they never wanted
to deal with the nightmare of another ADA lawsuit.
But more troubling is the fact that many hundreds, if not
thousands, of these cases are concluded without any changes
ever being made, which undermines the important public policy
objectives of the ADA. Exhibit D is just one example of
standard terms offered by one law firm known to have filed over
2,000 ADA accessibility lawsuits. Basically, if you pay the
right price, you can obtain a settlement agreement wrapped in a
strong confidentiality clause, which is, for practical
purposes, all but unenforceable.
Note that the agreement only requires that the defendant do
what its consultant recommends, but does not require that the
consultant be qualified or even that the items mentioned in the
complaint be fixed. In many cases, hundreds of cases, they
simply are not. Many attorneys deliberately leave information
about conditions which may need to be changed out of their
lawsuits for fear defendants will make all of the changes and
moot the case. But since so many of these cases are settled
informally, many defendants never learn about all the changes
they need to make.
The 9th Circuit Court of Appeals recently commented that a
filer of thousands of these lawsuits admitted that he rarely
mentioned all conditions which could limit accessibility for
his clients in the complaints he filed because, and I quote,
``Otherwise, a defendant could remove all the barriers prior to
trial and moot the entire case.'' We are citing Oliver v.
Ralphs, which is in Exhibit E. So if one of the purposes of the
ADA was that these lawsuits would operate to prompt changes for
others, practices like these directly undermine that objective.
But not all lawyers conceal claims. A discreet selling of
noncompliance is far more common. I have been told that if my
client pays the right amount, the plaintiff's attorney will
agree with my access plan whether it is appropriate or not. And
if that amount is not paid, they will find a way to object to
it, no matter how meritorious it is.
At one struggling charity thrift store, which was only
months from being taken by eminent domain, I was told that if
my client did not pay $50,000, the plaintiff's attorney would
contend that a power door should be installed, even though the
business only had 8 months left to operate.
In the same way noncompliance is often overlooked in these
cases, conditions which are completely compliant will provide
no protection. In the case of Kohler vs. Flava, we had to
litigate for 17 months to prove that each of the claims made by
plaintiff's counsel were meritless. This required over $100,000
in legal expense for which we could not bill this very small
client, and for which the court declined to award us fees, as
shown in your exhibits.
As you probably are aware, there is a one-way fee statute
in these cases by which prevailing plaintiffs almost always
recover their legal fees, while prevailing defendants are lucky
to ever recover a fraction, if any, of them. These have been
described as the cases you cannot afford to win, and creates a
situation where inappropriate positions can easily be taken
without accountability.
The Flava case was unusual because we had photographic
proof that two of the three sole claims in the complaint were
false. The property had previously been sued by the same
attorney, and the changes had been photographed, text messaged,
and e-mailed in 2009. So there could be no question that they
did not exist in 2010 when the plaintiff claimed he had
visited. As to the third claim, the attorney had sued 105
defendants on that same claim, which is basically that a bench
longer than 48 inches, a dressing room bench, would cause
problems for people with disabilities. And he failed in every
adjudication, but he nevertheless advanced litigation against
my client on that claim for 17 months and failed in that case
as well.
In that case, what made it unusual was that this attorney
has falsified the signatures of a deceased client of his on
documents which were first prepared weeks after the client's
death. When we reported this to the court, that attorney sued
each of the defendants that had reported the signature forgery
to the court. And so my client had not one, but 2 lawsuits to
deal with. Another defendant had several lawsuits to deal with.
Worst of all, the attorney felt that he was entitled to
falsify those signatures 3 weeks after his client had died. And
every judge who has considered the matter has disagreed with
him. But that did not help my small business client at all. To
date, we probably have about a half million dollars in fees
that we cannot bill the client, and we will probably not see
from the court.
The ADA does not need to be a game where only the attorneys
win and people with disabilities too often are the losers. As
you may know, vast numbers of these cases are concluded without
appropriate changes ever being made. One of the reasons for
this is that it can take 2 years or more to litigate a case,
and during that time attorneys must often advise their clients
not to make changes for fear they will be accused of destroying
evidence, as one of my clients was when making the very changes
that the plaintiffs sought. In that case as well, two of the
three sole claims were adjudicated in the defendant's favor,
and as to the third, the plaintiff failed in every known
adjudication, but prolonged the litigation even beyond the
summary judgment phase.
Moving on, in Pinnock v. Michelin, even though the
plaintiff's attorney could find no problem at a site meeting
with attorneys, witnesses, and experts, they nevertheless
converted the lawsuit to a class action and litigated for an
additional 8 months against my client.
Mr. Franks. Mr. Peters, I have got to ask you to wrap up
here.
Mr. Peters. Understood. I wholeheartedly support H.R. 3356.
It gives a plaintiff the power to have a change made
immediately rather than maybe after 2 years and maybe not at
all. Thank you.
[The prepared statement of Mr. Peters follows:]
Prepared Statement of David Warren Peters, Esq.,
CEO and General Counsel, Lawyers Against Lawsuit Abuse*
---------------------------------------------------------------------------
*Mr. Peters submitted supplemental materials with his statement
that the Committee chose not to print. However, the materials are on
file in the official hearing record. Please contact the House Committee
on the Judiciary's Subcommittee on the Constitution for that
information.
---------------------------------------------------------------------------
I've been consulted in over 900 ADA/accessibility lawsuits
throughout the United States, and defended over 400 such claims as lead
counsel. I urge your support of H.R. 3356 because it will stop some
widespread, troubling practices in these cases, reduce the number of
businesses which close as a direct result and accelerate improvements
for disabled access which are currently not being made in a very large
number of these cases.
H.R. 3356 would require an almost immediate agreement to make
changes with the knowledge that, if changes were not quickly made, the
pre-litigation notice letter it requires would most likely be ``Exhibit
A'' to a costly lawsuit where the business could be forced to make
those same changes and pay the plaintiff's attorney. In these very
difficult financial times, we need to give individuals confidence to
step forward and create jobs. But hundreds of my clients received
inaccurate information from their local building departments, city
leaders and even legislators that they were ``grandfathered'' and only
needed to make improvements if they made significant structural changes
at their business. While that's certainly not true, the answer is that
businesses need information--not to be ``blindsided'' by lawsuits for
changes most would gladly make if they only knew of the requirements. A
lawsuit should not be the first notice they get.
In 2005, I personally witnessed at least seven (7) small businesses
close very quickly in the small mountain community of Julian,
California after an attorney demanded a $200,000 (Exhibit ``A'') as an
unlawful ``investigation fee'' (Exhibit ``B'' page 7 paragraph 2) from
about 67 businesses in the name of an organization he created and
represented, which demands increased every day his terms were not
accepted (Exhibit ``C''). Since then, we've seen dozens of other
businesses close as a direct result of these lawsuits, in many cases
after making all appropriate changes, just because they never wanted to
deal with the nightmare of another ADA lawsuit.
But more troubling is the fact that many hundreds, if not thousands
of these cases, are concluded without any changes ever being made,
which undermines the important public policy objectives of the ADA.
Exhibit ``D'' is just one example of the standard terms offered by one
law firm known to have filed over 2,000 ADA/accessibility lawsuits.
Basically, if you pay the right price, you can obtain a settlement
agreement wrapped in a strong confidentiality clause which is, for
practical purposes, all but unenforceable. Note that the agreement only
requires the defendant to do what its consultant recommends, but does
not require that the consultant be qualified or even that the items
mentioned in the complaint be fixed.
Many attorneys deliberately leave information about conditions
which may need to be changed out of their lawsuits for fear defendants
will make all the changes and moot the case; but since so many of these
cases are settled informally, many defendants never learn about all the
changes they need to make. The Ninth Circuit Court of Appeals recently
commented that a filer of thousands of these lawsuits admitted that he
rarely mentioned all conditions which could limit accessibility for his
clients in the complaints he filed because ``. . . otherwise a
defendant could remove all the barriers prior to trial and moot the
entire case'' (see footnote 7 on page 10888 of Exhibit ``E''--Oliver v.
Ralphs). So if one of the purposes of the ADA was that these lawsuits
would operate to prompt changes for others, practices like these
directly undermine that objective.
But not all lawyers conceal claims--a discrete selling of
noncompliance is far more common--I've been told that if my client pays
the right amount, the plaintiff's attorney will agree with my access
plan whether it is appropriate or not, and if that amount is not paid,
they will find a way to object to it no matter how meritorious it is.
At one struggling charity thrift store which was only months from being
taken by eminent domain, I was told that if my client didn't pay
$50,000, the plaintiff's attorney would contend that a power door
should be installed to prolong the case and increase defense expense.
In the same way noncompliance is often overlooked in these cases,
conditions which are completely compliant still provide no protection.
In the case of Kohler v. Flava we had to litigate for 17 months to
prove that each of the claims made by plaintiff's counsel were
meritless (Exhibit ``F''). This required over $100,000 in legal expense
for which we could not bill this very small client and for which the
Court declined to award us fees, as shown in Exhibits ``G1'' and
``G2''. As you are probably aware, there is a one-way fees statute in
these cases by which prevailing plaintiffs almost always recover their
legal fees while prevailing defendants are lucky to ever recover a
fraction, if any, of them. These have been described as ``the cases you
can't afford to win'' and creates a situation where inappropriate
positions can easily be taken without accountability.
The Flava case was unusual because we had photographic proof that
two of the three sole claims in the complaint (Exhibit ``H'') were
false--the property had previously been sued by the same attorney, and
the changes had been photographed, text messaged and emailed in 2009,
so there could be no question that they did not exist in 2010 when the
plaintiff testified he'd first visited. As to the third claim, the
attorney had sued 105 defendants and failed in every known adjudication
(Exhibits ``M'', ``N'' and ``F''), but kept demanding and receiving
nuisance settlements from defendants who found it would cost them less
to settle than to prove their innocence. The real reason my client was
sued is shown in Exhibits ``I'' and ``J''--because we reported to the
court that this attorney falsified several signatures of a deceased
client on documents which were first prepared weeks after her death.
This attorney then filed a handful of new lawsuits against each of the
defendants who'd reported the signature falsification to the court.
Even though the falsity of many of the claims was documented in
considerable detail, the judges were never willing to consider the
evidence about the various cases together because it could create the
impression that they were not limiting their focus to the case in
question.\1\
---------------------------------------------------------------------------
\1\ Each of the foregoing decisions has already been appealed or is
shortly expected to be thus requiring even more work for which we can't
bill out clients.
---------------------------------------------------------------------------
But the ADA does not need to be a game where only the attorneys win
and people with disabilities too often are the losers. As you may know,
vast numbers of these cases are concluded without appropriate changes
ever being made. One of the reasons for this is that it can take two
years or more to litigate a case, and during that time attorneys must
often advise their clients not to make changes for fear they will be
accused of destroying evidence, as one of my clients was when making
the very changes the plaintiff sought (Exhibit ``K'' at 2:7). In that
case as well, two of the three sole claims were adjudicated in the
defendant's favor (Exhibit ``L''), and as to the third, the plaintiff
failed in every known adjudication (Exhibits ``M'', ``N'' and ``F'')--
basically, the plaintiff contended that a dressing room bench longer
than 48 inches in length somehow limited accessibility for people with
disabilities. While every judge we know of has disagreed, if this
attorney received similar amounts in each of the cases in which he made
these claims, he would have received $500,000 or more for advancing
claims which consistently failed.
In T3Pinnock v. Michlin even though the plaintiff's attorney could
find no problems whatsoever at a site meeting with a number of
witnesses (Exhibit ``O''), they still converted the claim to a class
action (Exhibit ``P'') and litigated for over 8 months against this
small picture frame shop shown in Exhibit ``Q''. In the end, the sole
picture they produced by court order of the condition on which their
claim was based showed a compliant counter which had existed unchanged
for decades (Exhibit ``R'').
In Pinnock v. Coles, that same law firm filed a complaint which
represented that their client had visited a carpet store on two
specific dates (Exhibit ``S''); but when confronted with video footage
from the 10 high definition cameras which covered every area of the
store and that the plaintiff did not appear in it for a week before and
after each date, they filed another lawsuit (Exhibit ``T'') in the name
of one ``Robin Member.'' When reminded that pseudonyms were
inappropriate for adult plaintiffs (and few kids buy carpet), they
indicated that the Plaintiff's true name was Robin Lavender but that
they could no longer contact her. We decided to help but one of the
best private investigators in the area could find no record of anyone
named Robin Lavender ever having lived anywhere in the county (and most
people who buy carpet tend to have property ownership or leasing
information in credit records). Unable to produce plaintiff number two,
the lawfirm filed a third lawsuit--this time a statewide class action
lawsuit (Exhibit ``U'') for a failure to provide Braille and wheelchair
access. But when the plaintiff in that case finally arrived in court, a
courtroom full of witnesses and two Federal judges saw that she needed
neither Braille nor wheelchair access, because she walked in without
assistance and was seen reading an ordinary book (Exhibits ``V'' and
``W'').
But the dozens of false claims this lawfirm filed in the name of
Plaintiff Lissa Hayes were just the beginning. As you can see on the
news video I am showing, the KABC news copter caught their client Jim
Cohan hiking up a hill with his dogs, even though they had filed
countless claims in his name alleging a lack of Braille and wheelchair
access (Exhibit ``X'' is just one example). Their former client Noni
Gotti recently testified to the California State Senate on video
(available on request) that she Googled her name and was shocked to see
that they filed as many as 243 lawsuits about a lack of Braille,
wheelchair accessibility and numerous other conditions which had never
been a problem for her, against many places she's never visited
(Exhibits ``Y1'' through ``Y4''). While it is true that one of the
attorneys who worked on her cases fled the country and tried to resign;
the State Bar opposed his resignation and pressed charges--the problem
is that the charges had almost nothing to do with the false claims
discussed above, and to date, there has been almost no accountability
for any of the small businesses sued in these cases, many of which
closed immediately.
But H.R. 3356 can put a stop to all that, and can restore the ADA
to its original intent and the dignity and respect it was intended to
have. What defendant would not immediately change out a round door knob
or remove an unsecured floormat--even if the plaintiff did not need
really those things? Almost any small business would make the change
immediately with its ``first dollars'' instead of putting them toward
litigation, where too often they are never made once a settlement is
paid.
I personally visited, photographed and documented 100 properties in
4 cities which had been sued in ADA/accessibility lawsuits at least 5
years earlier, so the time for appeals and reconsideration would have
passed long before. 98 of those properties had significant conditions
which would immediately support a new ADA/lawsuit, and at many, no
changes whatsoever had been made. H.R. 3356 would have had changes made
at every one of those properties within weeks. After 20 years of
lawsuits and only a fraction of the progress we owe our citizens with
disabilities, it's time to adopt a system which would guarantee
immediate changes and stop the inappropriate use of these noble laws
for improper purposes. I respectfully urge your strong support and
swift passage of H.R. 3356.
__________
Mr. Franks. Thank you, sir. Thank you very much.
I will now begin by recognizing myself for 5 minutes for
questions.
And, Ms. Ky, I will begin with you, if I could. Mr.
Lungren's bill requires a plaintiff to give a business owner
notice of an alleged ADA violation and the opportunity to fix
that violation before a lawsuit may be filed. So I ask you the
rather obvious, but I think critical, question since you are
uniquely credible to answer. Do you believe that it is fair to
the disabled to require notice and an opportunity to fix a
violation before a lawsuit can be filed?
Ms. Ky. Yes, I do. The reason is that many of this is not
updated. For example, in this building, if I go around, this
building is not compliant with ADA, and the law is written by
you guys. So how can you expect the general population to be
aware what is being written if it is not being publicized? For
example, using a speed limit, it is posted every, what, half a
mile? Say, speed limit 45. If you go over it, you get a ticket.
You choose to go over it. But we did not choose not to comply.
So minor violations, 30 days, perfect. If I need Braille
stickers, 60 inches above from the ground, I will go to the
store to get it. But if the concrete needs to be removed and
redo it because it is 3.8 percent because it is not 2.8
percent, we have to find construction. We have to find people
that know how to do concrete. And that gave me 120 days to do
that.
It is only fair. It is for the community. It is for
everybody. You cannot just give me a sue packet and say, you
sue. What did we do? Well, because you are not complying. Well,
I did not know the law changed every 5 years or every 3 years.
Was it announced? Was it publicized? Is it 3 strikes, you are
out? No.
So we need some notice whether from the lawyer, from the
plaintiff, from somebody. Give me the list.
Mr. Franks. Well, thank you. I am just curious, did I hear
you say that this building or where you are sitting now is not
ADA compliant as we have written it?
Ms. Ky. I am sorry, say that again?
Mr. Franks. Maybe I misunderstood. Did you say that the
building that we are in now or that the table that you are at
is not ADA compliant as you understand it?
Ms. Ky. Yeah, your table here, I do not see a disabled
symbol because, you know, on the list that we were cited for, I
believe in the ADA regs or policy is that a business owner
needs to put a universal word symbol on their table to signify
saying, oh, this section is for you, and you only sit in here.
So as you can see, I am looking around, I do not see that
in here. This is a public place, so why is it not in your
building?
Mr. Franks. Thank you. I hope somebody gives us notice on
that.
Ms. Ky. Yeah, that would be great. May I go around how
accessible you are?
Mr. Franks. All right. Thank you. Thank you, Ms. Ky.
Mr. Peters, I would like to ask you, the ACCESS Act would
require a plaintiff to send the owner or operator of a public
accommodation notice of an alleged ADA violation before the
plaintiff may file a lawsuit. I keep repeating the obvious, but
it is important to understand really the simplicity, if I am
getting it right here. The owner/operator then has up to 120
days to make necessary repairs.
Given your experience with ADA lawsuits, is this 120-day
time period a significant delay for plaintiffs? Do ADA lawsuits
usually get resolved more quickly than 120 days under current
law?
Mr. Peters. A hundred and twenty days----
Mr. Franks. Make sure your microphone is on, sir.
Mr. Peters. Yes, I think it is.
Mr. Franks. All right.
Mr. Peters. I did a study of 100 properties that had been
sued in ADA lawsuits in Federal court as far as 5 years back,
so that the time for appeals or permits, et cetera, should all
have been behind by then. Ninety-eight of those properties
still had conditions which would support a lawsuit only, and at
many of them no changes whatsoever had been made. And only 2
could I say I really did not see things that would lead to
another claim.
And so you asked about 120 days. That would be a dream come
true for many members of my family, and many clients and
plaintiffs that I have met that tell me that they have asked
for months, if not years, for changes to be made, and the
changes are never made. With this bill, if you do not agree to
make the change and quickly make the change, you are going to
have one angry Federal judge on your case. And that is the last
thing any of these small businesses can afford.
Mr. Franks. Well, opponents of the bill also argue that if
a plaintiff has to provide notification of alleged ADA
violation before they can file a suit, then business owners
will have no incentive to make their buildings accessible until
they receive notice. Based on your experience, do you believe
that that argument has merit?
Mr. Peters. No, not at all. There are a variety of States
laws in which a business can still be sued. Actions can still
be brought by the attorneys general, State or Federal. Frankly,
the ADA is still the law. This does not change that. It is what
needs to be done. There are massive tax credits for making ADA
changes, and many businesses will obey the law because it is
the law.
The overwhelming majority of defendants who have contacted
me simply did not understand that it was required. Sadly, they
got bad information from their building departments or their
city officials. But the minute they understood that it applied
to them, they gladly made the changes.
Mr. Franks. Thank you, Mr. Peters. Thank all of you.
Mr. Nadler, I recognize you for 5 minutes for questioning,
sir.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Levy, if lawyers sometimes send demand letters before
suing, what is the harm in making that a statutory requirement
for everyone?
Mr. Levy. There are cases in which the lawyer representing
a particular client may choose to do so for any number of
reasons. The problem with making it a statutory requirement is
that it creates an exemption from the law to anyone who has not
gotten such a letter, regardless of how long the violation has
occurred. The clock does not start at all until they get the
letter.
Mr. Nadler. Okay. So, in fact, that is no incentive to
comply with the law until you get the letter.
Mr. Levy. No incentive at all. You are not going to have to
pay damages because Title III does not provide for damages. So
it does not matter how long the violation----
Mr. Nadler. Well, let me ask you a question that I asked
our colleague, Mr. Lungren. Let us assume that statute provided
that you cannot be sued until receipt of the letter, but also
provided for damages. Would that be reasonable?
Mr. Levy. I think that would be a good starting point,
Congressman. I think that if you had a law that provided for
damages, it changes the dynamic, and no longer notification--
just like administrative exhaustion in Title I no longer
provides for an exemption because damages will be running for
violation if there are violations.
Mr. Nadler. So if the proposal said you are responsible for
violations as you are now. You are supposed to comply with the
law. But you cannot be sued until you get a demand letter, but
once you get a demand letter, or whatever you call this letter,
you can be sued for violations going back.
Mr. Levy. I think that would be----
Mr. Nadler. You can get damages rather for violations.
Mr. Levy. That would be a much better bill than the one
that is proposed.
Mr. Nadler. It would be better than the current law?
Mr. Levy. This one solves a problem that basically does not
exist in my experience.
Mr. Nadler. Would such a bill be better than the current
law?
Mr. Levy. The current bill.
Mr. Nadler. No, no. What I just suggested.
Mr. Levy. I think that the availability of damages in Title
III would be much better than the existing status quo. How that
would be structured in terms of notification or exhaustion,
clearly that is a much more even way to begin the discussion
than the existing bill.
Mr. Nadler. Thank you. Mr. Levy again, the bill requires
notice that is ``specific enough,'' for a defendant to remedy
the problem. What do you take this to mean, and might this
simply foster litigation over whether a letter was ``specific
enough?''
Mr. Levy. You already have someone who goes and hires Mr.
Peters and brings this letter to him. If he is a capable
defense lawyer, as I know he is, the first thing he is going to
do is quarrel with the specificity in the notice. He is going
to say the notice is not specific enough. Here are all the
things it does not tell us. Here are all the things we need to
know. It creates issues. Issues are the mother's milk of
lawyers in terms of billing time. It is going to make
enforcement of this law all the more----
Mr. Nadler. So this is a trial lawyer's bill?
Mr. Levy. For the defense it is because they get paid
whether they win or lose.
Mr. Nadler. So this would be a measure to foster more
litigation. Mr. Peters----
Mr. Levy. Would have that----
Mr. Nadler. What is your reaction to that? Would, in fact,
a requirement of a letter ``specific enough'' lead to
litigation over what is ``specific enough?''
Mr. Peters. Well, for us to take a case, first of all, we
require that the client be willing to make all required changes
within 30 days. And, in fact, if it can be done in 10 days, it
needs to be.
Mr. Nadler. No--yeah.
Mr. Peters. I am getting to your answer.
Mr. Nadler. Okay.
Mr. Peters. Since Mr. Levy referred to our office, if a
letter like that comes into our office, we are going to require
the client to be making all the changes immediately. If the
letter is not ``specific enough,'' we can get an investigator
to go--I usually visit the property and meet the client and
talk about the changes that----
Mr. Nadler. But do you think there would be more litigation
over whether it is specific enough? You say it was not. Someone
would say it was.
Mr. Peters. I really do not. I must tell you, though, I
have seen a small number of letters, a very small number, where
someone said I had difficulty in your parking area.
Mr. Nadler. Okay. Mr. Levy, since I am running out of time,
my last question. There are reported claims of businesses
routinely having to shut down because of ADA. If the required
changes for existing structures under the ADA only need be made
``readily achievable,'' why is this happening, or this, in
fact, happening?
Mr. Levy. It is not happening in my experience. I hear
these anecdotes. They are not consistent with any universe in
which I live or I practice. In fact, much more common is all
you need to do is drive down the street and look at the number
of storefronts with a couple of steps into them that, 20 years
after the ADA has been the law, no one has bothered to install
a ramp.
They do not need notification. What we need are stronger
enforcement provisions so people will be worried enough about
complying with the law that they, in fact, go and do so.
Mr. Nadler. Thank you.
Mr. Franks. Thank you, Mr. Nadler. And, let us see. I guess
we go to Mr. Scott here. I keep looking for Mr. Quigley here. I
am not forgetting your name, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Franks. Yes, sir.
Mr. Scott. Mr. Levy, you suggested that if this bill goes
into effect, there would be no incentive for any business to
get into compliance with the ADA until such time as they have
statutory notice of a specific violation. Is that right?
Mr. Levy. Yes, sir.
Mr. Scott. Now what kind of voluntary compliance has
occurred since 1990?
Mr. Levy. Well, everyone who has looked at this has
recognized that the ADA is a notoriously under enforced and un-
complied with law. I mean, I am from Baltimore. We could take a
walk 2 blocks from my office, see the number of stores that
still had steps to get into them. And these are not, you know,
flights of stairs. These are a small number of steps that could
easily be ramped.
And it is the case that not only has there not been
voluntary compliance up to now, there has been widespread just
ignoring of the requirements of the law that is on the books.
If we put further obstacles in the way of plaintiffs seeking to
enforce this law, it is not complicated. There is going to be
less compliance. There is going to be less accessibility. You
know, it is a simple game, as they say.
Mr. Scott. Mr. Peters, did I understand you to say that you
could be in compliance with building codes and still be in
violation with the ADA?
Mr. Peters. Absolutely. In fact, there are a number of
direct contradictions. Speaking only for California, which is
where I am from, there are about 2,400 points between the ADA
and the California Building Code. And with some you do ADA,
with some you do California. It is really hard for a small
business owner to know.
And there are at least 7 points where they directly
conflict. We get 3 experts in a room, and they cannot even
agree on what needs to be done at a particular business.
Mr. Scott. Well, would it make sense to work with the
building code and the ADA rather than inflict this kind of bill
on the public that would discourage anyone from coming into
voluntary compliance?
Mr. Peters. That is what has been happening. There is an
effort to reconcile the building codes with ADA standards. It
has been going on for, I think, way over a decade. And the
progress is commendable, but it is the uncertainty that often
drives these cases.
Mr. Scott. Thank you. I have no further questions. Mr.
Chairman, parliamentary inquiry.
Mr. Franks. Sir.
Mr. Scott. Mr. Lungren is a Member of the Committee. If I
yielded time to him, would he be able to ask questions?
Mr. Franks. I am afraid, Mr. Scott, the rules do not allow
the august Mr. Lungren the opportunity to speak or ask
questions from the dais.
Mr. Nadler. Mr. Chairman.
Mr. Franks. And I am going to ahead, given the past
enforcement of that rule, we are going to enforce that.
Mr. Nadler. I would ask unanimous consent that he be
permitted, if he is still here.
Mr. Franks. And with loving deference my friend, and he
understands why I would object. However, I will take the
Chairman's prerogative to say that I think he has done a
wonderful thing here today. [Laughter.]
And that this is a very good bill, and I hope that it
succeeds.
And I thank all the witnesses for being here today.
Without objection, all of the Members will have 5
legislative days to submit to the Chair additional written
questions for the witnesses, which we will forward and ask the
witnesses to respond as promptly as they can so that their
answers may be made part of the record.
Without objection, all Members will have 5 legislative days
within which to submit any additional materials for inclusion
in the record.
And with that, again, I thank the witnesses, and I thank
the Members and observers. Thank all of you for being here. And
this hearing is adjourned.
[Whereupon, at 2:56 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Chairman, Subcommittee on the
Constitution
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Material submitted by the Honorable Daniel E. Lungren, a Representative
in Congress from the State of California, and Member, Committee on the
Judiciary
Material submitted by the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Ranking Member, Subcommittee
on the Constitution
Policy Statement of the National Council on Disability
Regarding the ACCESS Act of 2011
The National Council on Disability (NCD) is an independent federal
agency that makes recommendations to the President and Congress on
disability policy. In this role, NCD is responsible for advising on the
implementation, impact and effectiveness of the Americans with
Disabilities Act. NCD first proposed the concept of the ADA in 1986
during the Reagan Administration, and in 1990 it was signed into law by
President George H.W. Bush. Congress relied on and acknowledged the
influence of NCD, its reports, and its testimony throughout the
legislative process. Since passage of the ADA, NCD has remained
actively involved in monitoring its impact and advising federal
entities on policy issues.
NCD is deeply concerned about the proposed ADA Access Act of 2011.
The Act proposes to amend the ADA to require that an individual
alleging a business is inaccessible provide written notice to the
business about the specific ADA violation before bringing suit.
Title III of the ADA was intended to balance the interests of small
businesses along with the accessibility concerns of people with
disabilities. It is a myth that the ADA's requirements are too hard on
small businesses. The legislative history of the ADA is rife with
concern about the burden on small businesses and as a result, Title III
does not require any action with respect to existing buildings that
would cause an undue burden or that is not readily achievable. The
approach of the ADA was not to exempt small businesses from the
requirements of the bill, but rather to tailor the requirements of the
Act to take into account the needs and resources of small businesses-
to require what is reasonable and not to impose obligations that are
unrealistic or debilitating to businesses. Each of the major sections
and requirements of the ADA takes into account the fact that some
businesses are very small local enterprises that may have very limited
resources. The following are some of the ways in which the provisions
of the ADA provide great deference for the characteristics and needs of
small businesses:
the exemption for small employers;
the undue hardship limitation;
the readily achievable limit on barrier removal in
existing public accommodations;
the undue burden limitation regarding auxiliary aids and
services; and
the elevator exception for small buildings, among others.
NCD addresses this in its policy brief series, Righting the ADA,
found at http://www.ncd.gov/publications/2003/Feb202003.
In addition, businesses have had almost a quarter of a century to
comply with the provisions of Title III. DOJ has published and
distributed multiple technical assistance documents- all of which are
available 24 hours a day through DOJ's home page on the Internet. The
National Institute on Disability and Rehabilitation Research
established regional centers on the ADA, the Disability and Business
Technical Assistance Centers (DBTACs), to provide technical assistance
to businesses. Clearly, businesses have been put on notice of this 22-
year-old landmark law.
An amendment to the ADA such as the proposed ADA Access Act of
2011, is superfluous. While at first impression the proposed
amendment's notice requirement does not appear to be an imposing burden
for an aggrieved individual to correct an ADA violation, this provision
will have the drastic effect of creating a nationwide exemption to the
ADA. It encourages businesses to do nothing until they get a letter of
notification- no other civil rights law has a notice provision like
this.
NCD recommends that Congress follow its own careful considerations
when enacting the ADA--and not pass this unnecessary amendment.
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Prepared Statement of the National Disability Rights Network
The National Disability Rights Network (NDRN) would like to thank
Representative Franks, Representative Nadler, and the House
Subcommittee on the Constitution for the opportunity to submit
testimony on the important issue of accessibility for people with
disabilities. NDRN is a nonprofit membership organization for the
federally mandated Protection and Advocacy (P&A) and Client Assistance
Program (CAP) systems, created by Congress in the 1970's to protect the
rights of children and adults with disabilities and their families.
With a presence in every state and U.S. territory and the District of
Colombia, the P&A/CAP network is the largest provider of legal services
for people with disabilities in the United States. The P&As and CAPs
offer an advocacy and legal voice to individuals with disabilities by
uncovering and eliminating maltreatment and ensuring compliance with
laws designed to protect the rights of individuals with disabilities,
including the Americans with Disabilities Act.
We need to start with the recognition that even though the
Americans with Disabilities Act was signed into law almost twenty-two
years ago, people with disabilities still face barriers to many places
of public accommodation. Although NDRN appreciates the interest in
ensuring that places of public accommodation have an incentive to
comply with the provisions of the ADA, we are opposed to the ``ACCESS''
Act because it would limit the ability of people with disabilities to
efficiently obtain remedy to ADA violations.
The ACCESS Act would force people with disabilities to wait between
sixty (60) and one hundred eighty (180) days to pursue legal action
based on a violation of the ADA. This would delay the ability of people
with disabilities to gain critical access to public accommodations
ranging from restaurants to retail stores and lawyers', accountants'
and doctors' offices. People with disabilities have had to wait decades
to obtain access to these places, and no other civil rights law allows
people to remain in non-compliance for so long.
While NDRN understands the concerns behind the desire to pass the
ACCESS Act, behind the lawsuits filed under the ADA are legitimate
concerns regarding lack of accessibility. The solution to the perceived
problem that is the topic of today's hearing is not to prevent
legitimate lawsuits from moving forward and the rights of people with
disabilities from being promptly addressed.
Federal law and the Federal court system already have numerous
protections in place to prevent attorneys from filing frivolous
lawsuits, and often impose sanctions against attorneys who file these
lawsuits. Rule 11 of the Federal Rules of Civil Procedure requires
attorneys to certify that a pleading is not being filed for an improper
purpose and is supported by the law and facts. If an attorney violates
this rule, they may be subject to monetary or other sanctions. Although
courts will award attorneys' fees under Title III of the Americans with
Disabilities Act, these fees will not go to a party that does not
prevail, and when an attorney does win attorneys' fees, courts examine
closely the amount of time that an attorney spent on a case and only
award a reasonable amount of attorneys' fees based on the effort an
attorney put into the case. Some courts have even limited repeat
``frequent flyers'' by requiring them to get the court's leave before
filing a lawsuit in certain courts. In especially egregious cases, like
when an attorney requests monetary payment in exchange for not filing a
lawsuit, an aggrieved party can file a complaint with the State Bar
Association.
Most importantly, there is little that an amendment to the Federal
ADA would do to remedy the issues raised today. There are currently no
monetary damages available under Title III of the ADA, and only some
state statutes provide monetary damages for plaintiffs in accessibility
suits, but that is only under STATE law. To the extent that plaintiffs'
attorneys file perceived frivolous lawsuits to gain monetary damages
through civil damage settlements, amending the federal ADA statute
would change nothing.
Current practice is already tilted toward the business community
since many people with disabilities are on a limited income, and an
award of attorneys' fees is never certain. So plaintiffs' attorneys
tend to only work on cases where the plaintiff will likely prevail,
which limits access to attorneys for people with disabilities.
Again, thank you for the opportunity to submit testimony today. For
the reasons stated above, we oppose the ACCESS Act because it would
require people with disabilities to wait even longer than they already
have to obtain equal access to public accommodations.
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