    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                      EXAMINING LEGISLATION TO PROMOTE THE
                       EFFECTIVE ENFORCEMENT OF THE ADA'S
                        PUBLIC ACCOMMODATION PROVISIONS

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION
                               AND CIVIL JUSTICE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 19, 2016

                                   __________

                               Serial No. 114-76

                                   __________

             Printed for the use of the Committee on the Judiciary

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          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               Shelley Husband, Chief of Staff & General Counsel
            Perry Apelbaum, Minority Staff Director & Chief Counsel

                                    ------

               Subcommittee on the Constitution and Civil Justice

                        TRENT FRANKS, Arizona, Chairman

                      RON DeSANTIS, Florida, Vice-Chairman

    STEVE KING, Iowa                     STEVE COHEN, Tennessee
    LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
    JIM JORDAN, Ohio                     TED DEUTCH, Florida

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  MAY 19, 2016

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Chairman, Subcommittee on the
      Constitution and Civil Justice.................................     1
    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Ranking Member, Subcommittee on the
      Constitution and Civil Justice.................................     3
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     5

                                   WITNESSES

    Honorable Ted Poe, a Representative in Congress from the State of
      Texas
      Oral Testimony.................................................    10
      Prepared Statement.............................................    12
    Honorable Ken Calvert, a Representative in Congress from the
      State of California
      Oral Testimony.................................................    14
      Prepared Statement.............................................    16
    Lee Ky, Manager, Doughnuts To Go
      Oral Testimony.................................................    18
      Prepared Statement.............................................    21
    Mili Shah, Hotel Owner and Attorney
      Oral Testimony.................................................    23
      Prepared Statement.............................................    25
    Kelly Buckland, Executive Director, National Council on
      Independent Living
      Oral Testimony.................................................    28
      Prepared Statement.............................................    30
    David Weiss, Executive Vice President & General Counsel, DDR
      Corp.
      Oral Testimony.................................................    37
      Prepared Statement.............................................    39

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution and Civil Justice...     7

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Supplemental material submitted by the Honorable Ken Calvert, a
      Representative in Congress from the State of California........    64
    Supplemental material submitted by David Weiss, Executive Vice
      President & General Counsel, DDR Corp..........................    66
    Letter from Elizabeth H. Taylor, Vice President, Government
      Relations and General Counsel, International Franchise
      Association....................................................    72
    Letter from Amina Donna Kruck, VP Advocacy, Ability360...........    73
    Letter from Bridgette Moore, Mayor, City of Wildomar, Wildomar,
      CA.............................................................    75
                            OFFICIAL HEARING RECORD
              Unprinted Material Submitted for the Hearing Record

    Material submitted by the Honorable John Conyers, Jr., a Representative
        in Congress from the State of Michigan, and Ranking Member,
        Committee on the Judiciary. This material is available at the
        Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104943

    Material submitted by the Honorable Ken Calvert, a Representative in
        Congress from the State of California. This material is available
        at the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104943

    Material submitted by the Honorable Steve Cohen, a Representative in
        Congress from the State of Tennessee, and Ranking Member,
        Subcommittee on the Constitution and Civil Justice. This material
        is available at the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104943

    EXAMINING LEGISLATION TO PROMOTE THE EFFECTIVE ENFORCEMENT OF THE ADA'S
                        PUBLIC ACCOMMODATION PROVISIONS

                                  ----------

                             THURSDAY, MAY 19, 2016

                            House of Representatives

                       Subcommittee on the Constitution
                               and Civil Justice

                           Committee on the Judiciary

                                Washington, DC.

        The Subcommittee met, pursuant to call, at 9 a.m., in room
    2141, Rayburn House Office Building, the Honorable Trent
    Franks, (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, DeSantis, Goodlatte, King,
    Jordan, Cohen, Conyers, and Deutch.
        Staff Present: (Majority) John Coleman, Counsel; Tricia
    White, Clerk; (Minority) James Park, Chief Counsel; Matthew
    Morgan, Professional Staff Member; and Veronica Eligan,
    Professional Staff Member.
        Mr. Franks. The Subcommittee on the Constitution and Civil
    Justice will come to order, and without objection, the Chair is
    authorized to declare recess of the Committee at any time. And
    welcome to you gentlemen. Sorry for being a little late.
        We have called this hearing today to examine H.R. 3765, the
    ADA Education and Reform Act of 2015, and H.R. 241, the ACCESS
    Act of 2015, which are two commonsense proposals that 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.
        These bills, which only apply to cases involving public
    accommodations, would both improve public access for disabled
    individuals, and eliminate thousands of predatory lawsuits that
    damage the reputation of the ADA and its overall purpose. 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. It has been hailed
    as the most sweeping nondiscrimination legislation since the
    Civil Rights Act of 1964. Unfortunately, enterprising
    plaintiffs and their lawyers have abused the law by filing a
    flurry 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 though good faith efforts such as
    bringing or hiring an ADA compliance expert, a business can
    still find themselves subject to a lawsuit for almost any minor
    or unintentional infraction.
        According to one ADA compliance specialist, ``I rarely, if
    ever, see circumstances or 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 a 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 primarily driven by the ADA attorney's fee
    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 filed.
    As settlement prior to filing a lawsuit does not entitle
    plaintiff's counsel to attorneys' fees under the ADA, there is
    an incentive.
        As one Federal judge observed, the result is that the means
    for enforcing the ADA attorneys' fees have become more
    important and desirable than the end, which is accessibility
    for disabled individuals. But the ADA was enacted to protect
    disabled individuals, not to support a litigation mill for
    entrepreneurial plaintiffs' attorneys hunting for ADA
    violations just to file lawsuits.
        These bills examined today would help eliminate predatory
    ADA lawsuits; increase compliance with the ADA by giving
    businesses the opportunity to fix ADA violations instead of
    dragging them into litigation; and improve the reputation of
    the ADA in the eyes of the public; and ultimately improve
    access for disabled individuals. 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 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 litigating
    claims. Small businesses are critical to America's economic
    recovery, and should not be burdened by unnecessary litigation.
        It is an honor to have Congressman Ted Poe, who introduced
    3765, and Congressman Ken Calvert, who introduced H.R. 241,
    both here to testify about their respective bills. And I look
    forward to your testimony and the testimony of our other
    witnesses.
        And with that, I would recognize the Ranking Member of the
    Subcommittee, Mr. Cohen from Tennessee for his opening
    statement.
        Mr. Cohen. Thank you, Mr. Chair. Colleagues, it is good to
    have you all here. This is not the first time there has been a
    hearing on this type of issue. Since 2000, there have been I
    think three times that bills have been filed and hearings on
    pre-notification concerning ADA. I have met previously with the
    folks from the shopping center world, the hotel world, and the
    disability community, and tried to get a more better grasp on
    the issue and come up with some type of a reasonable solution.
    It is difficult to do it.
        Folks do not really want to change from their kind of
    positions they have got. Some of them are based in 1990, and
    they will tell me that this is what we did in 1990, and it is
    kind of like, well, that is fine, I was not there in 1990. My
    job is not to ratify whatever happened in 1990.
        But when we look at these cases, private parties are
    indispensable to having enforcement of any civil rights law.
    And this is a civil rights law. So we got to have private
    attorney generals. And private attorney generals have been so
    effective in many areas in seeing that our laws are effectively
    enforced. Civil rights in particular, and the ADA. And because
    of that, there was the agreement in 1990 said that there would
    not be damages in these cases under the ADA, but they would pay
    attorneys' fees, and so that gave a bit of compromise that was
    done.
        I understand that there are some folks that think that
    their attorneys out there are throwing wide nets, and they do
    not really have a specific target, and I think that is wrong. I
    definitely think that is wrong. But I have suggested to them
    that in coming up with some type of solution, and part of that
    is in the bill I think, is that you have to have specificity in
    your complaint, and you can tighten that up to see that they
    have not just a boilerplate complaint, but a specified,
    specific complaint, although I do not know why Rule 11 has not
    worked against those type of complaints in the past.
        But so be it, maybe that would help. If you get into this
    situation to where you--obviously the title of this hearing is
    the Examining Legislation to Promote the Effective--I know it
    is effective--Enforcement of the ADA's Public Accommodations
    Provisions. So we have to presume in there that we want to
    enforce the ADA's public accommodations provisions, although
    most of what we have got here is not such for enforcement as
    kind of limiting enforcement and limiting the way we--so that
    is kind of a juxtaposition in my mind, or a contradiction in
    the title and what I see as the focus of the legislation.
        I have never seen a criminal penalty that would be created
    to anybody who asserts a civil right, and this would be a case
    that you could have a civil penalty--a criminal penalty, excuse
    me, if you do not give your notice provision first. And that
    seems really harsh, and I think some of the folks have agreed
    that was a little harsh and maybe further than it should go.
    And that would be anathema.
        But there can be abuses. I think there might be abuses. And
    if there are abuses, I want to clean them up. And I did that
    with this Committee, and looking at trolls that are--I know
    they are not your pals, Mr. Poe, but there are--they may be,
    but I do not think so--in Marshall County, Texas deal, and they
    are just kind of--that is not necessarily great, we are all
    there.
        So I have suggested, if you want to amend this and have
    pre-suit notifications, that you ought to have stuff that also
    rewards the good guys that clean up the mess after the 120
    days, and everybody says, ``Oh, the good guys will come forth
    and get notice,'' and that is what you want to get if you want
    the mirror or the signs or the rails or whatever taken care of.
    And if the good guys do it, make substantial clients, great.
        But if they do not, you got bad actors, or if they just
    kind of lollygag, or they do not do substantial whatever, then
    I think you got to have a stick. And if you are going to change
    this, you got to have a stick to see that the bad guys get
    punished somehow, and I am not quite sure how you do it, but
    there has got to be something to those people not just to give
    them this notice provision and time to, you know, kind of maybe
    be dilatory, but punish them for not being good guys.
        And one of my thoughts was to give some kind of damages,
    some liquidated damages, maybe some amount that is equal to or
    some multiple of what it requires to fix the area, or maybe
    there would be some other kind of damages we could come up with
    to punish the owners that are not the good guys. You have got
    to have consequences for those people, and otherwise they are
    just getting a benefit, and they are not being the folks that I
    know Mr. Poe and Mr. Calvert are interested in helping through
    this action.
        And the folks with the ADA community, I mean they want like
    I want the ADA enforced. And this is not about attorneys. This
    is about ADA provisions. But the attorneys do bring the cases,
    and with the notice provision, they do not have--and they are
    not getting attorneys' fees. They bring a problem to the
    attention of the business community and they clean it up, and
    the other side gets nothing for it, there is--unlikely there is
    going to be a continued interest in those people, the
    attorneys, to follow through and help in giving the notice
    provisions, advising the clients, and trying to cure problems
    with the ADA.
        That is just the way the system works. People have got to
    have some skin in the game. And you are taking the skin of the
    game out. And so that is going to hurt, I think, the
    enforcement here unless we come up with something on the back
    end that maybe kind of makes it a little bit sweeter.
        I am a lawyer, and I have a disability. I helped pass the
    ADA state statute in Tennessee, and I am interested in seeing
    it is enforced appropriately and properly, but I am not
    interested in seeing businesses get these wide nets thrown and
    be subject to folks looking out more for attorneys' fees than
    the disabilities community. I think that is a disservice both
    to the bar association, members of the bar, and to people with
    disabilities.
        So I hope we have a fruitful discussion. I know we will. I
    hope we can come up with a solution. I think there is some good
    ideas here, but I do not think the solution is here, and I do
    think we need to look at some kind of a stick to make sure the
    bad guys get slapped so that the good guys can just deal with a
    notice. With that, I yield back the balance of my time; and
    that is just the way it is.
        Mr. Franks. I thank the gentleman, and I would now yield do
    the Ranking Member of the full Committee, Mr. Conyers from
    Michigan.
        Mr. Conyers. Thank you, Chairman Franks; and the top of the
    morning to you and our distinguished witnesses and the guests
    that have joined us this morning. The three bills that are
    subject of today's hearings would institute a notice and cure
    requirement under title III of the Americans and Disabilities
    Act of 1990. Specifically, these measures would prohibit a
    lawsuit from being commenced unless the plaintiff first gave
    the business owner specific notice of an alleged violation, an
    opportunity to fix or make substantial progress toward
    remedying such violation.
        Let me begin by stating what I said previously when similar
    proposals were considered by our Committee in the year 2000,
    and again in the year 2012--I am adamantly opposed to any
    effort to weaken the ability of individuals to enforce their
    rights under title III's public accommodations provisions. And
    here is why.
        First, the notice and cure requirement will generate
    numerous litigation traps for the unwary and ultimately
    dissuade many individuals from pursuing their legitimate
    claims. For example, two of these bills would require a
    complainant provides specific notice of the alleged violation
    before he or she may file suit. But they fail to define what
    constitutes specific notice, nor do they define what is
    substantial progress toward compliance.
        As a result, courts will have to struggle to determine what
    these inherently vague terms mean, thereby creating an open
    invitation for well-financed business interests to engage in
    endless litigation possibly that would drain the typically
    limited resources of a plaintiff.
        In addition, these measures would undermine a key
    enforcement mechanism of the Americans with Disabilities Act
    and other civil rights laws. The credible threat of a lawsuit
    is a powerful inducement to businesses to proactively take care
    to comply with the Act's requirements. Yet a pre-suit
    notification requirement would create a disincentive to engage
    in voluntary compliance, as many businesses would simply wait
    until receiving a demand letter before complying with the law.
    And this requirement also would discourage attorneys from
    representing individuals with claims under title III because
    attorney fees may only be recovered if litigation ensues.
        Thus, an individual with a title III claim would not be
    entitled to recover such fees if the extent of the attorney's
    representation was limited to drafting the demand letter.
    Presuit notification would make it even more difficult for
    disabled persons with valid title III claims to obtain legal
    representation to enforce compliance with the Act.
        Finally, title III, by its terms, is already designed to
    make compliance relatively easy for businesses. And so I am
    pleased to join the hearing, and I yield back any time
    remaining. Thank you, Mr. Chairman.
        Mr. Franks. And I thank the gentleman. And without
    objection, other Members' opening statements will be made part
    of the record.
        Before I introduce the witnesses, I would like to submit
    two statements for the record. The first is a letter from the
    National Association of Theater Owners in support of H.R. 3765.
    The second is a coalition letter, also in support of H.R. 3765.
    Without objection, these statements will be entered into the
    record.
        [The information referred to follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. So let me now introduce our witnesses. We have
    two very distinguished panels today, and I will begin by
    introducing the first panel of witnesses.
        Our first witness is Representative Ted Poe. Mr. Poe
    represents Texas second district, and is a Member of the
    Judiciary and Foreign Affairs Committee. And we are glad to see
    you, sir.
        And our second witness is Representative Ken Calvert. Mr.
    Calvert represents California's 42nd Congressional district and
    is a Member of the House Appropriations Committee. And I am
    glad you are here.
        So I would now recognize our first witness, Congressman Ted
    Poe. And if you will turn that microphone on, I know you
    would--yes, sir.

        TESTIMONY OF THE HONORABLE TED POE, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Poe. Thank you, Mr. Chairman. Thank you for allowing me
    to be here. I thank the Ranking Member. And also I would like
    to thank Congressman Calvert for his work on this issue for a
    good number of years.
        As the Chairman has pointed out, or has pointed out in the
    past, I am a former judge, prosecutor, and lawyer. I have been
    in the legal profession for almost 40 years. And this is a
    situation where this particular hearing that we are having
    deals with, I think, abuse of a good law. I believe strongly in
    the ADA. And it needs to be always enforced.
        And the goal of the legislation is to make sure that when
    there is a violation anywhere across the fruited plain, that
    the violation gets fixed, so that there is accommodation for
    the citizen to get into that business.
        But the legislation hopes to prevent what is occurring,
    that there are lawsuits being filed, not to get accommodation
    for the citizen, but to get money so that people settle and
    that alleged violation may or may not ever be addressed. And
    what happens is that lawyers are making a lot of money of
    these--what I think are frivolous lawsuits, to the detriment of
    the person who is actually being prohibited from going into
    some businesses, because the goal is not being reached to allow
    accommodation.
        What is happening is lawyers are filing lawsuits,
    businesses settle rather than go to court, and the lawyer gets
    we do not know how much of that money. So in the last 10 years,
    these frivolous lawsuits have been filed under the public
    accommodations section of the ADA. Some of these lawsuits are
    in my opinion shakedowns for businesses, and they are using the
    ADA as a basis to obtain quick settlements rather than go to
    court.
        For example, some of these law firms--and they are specific
    law firms in different parts of the country that do this--they
    will file notice, or give a letter stating that there is not a
    proper pool lift in a particular motel or hotel. And many of
    these--some of these hotels do not even have a pool, or these
    motels. But the businesses settle rather than go to court
    because of the cost of litigation. And that is the motivation
    of these lawsuits.
        And we are talking about settlements of around $5,000
    apiece. Often, the same individuals or organizations who are
    making many of these claims go from business to business, and
    it is a business model that is been working especially in the
    last 2 years, where 10,000 of these lawsuits have been filed.
        In Florida, a plaintiff named Howard Cohen--no relationship
    to the Ranking Member--has filed 529 of these lawsuits; in
    California, Martin Vogel has filed 124; in Pennsylvania,
    Christopher Mielo has filed 21 of these lawsuits; and in some
    cases, like Howard Cohen: he sued the Marquesa Hotel in Key
    West for an alleged violation of their pool, despite the fact
    he was never a registered guest at the hotel. Sounds somewhat
    suspicious.
        The ADA expert who actually wrote part of the ADA bill,
    Bill Norkunas, helped the hotel fight in this particular case.
    And he stated that Cohen was essentially operating ``a
    continuing criminal enterprise that boils down to extortion.''
    That does not get people into these motels. It does not
    accommodate these individuals. It allows for, as he said,
    shakedowns for money to be collected by these--as I think they
    are--ADA trolls.
        And some of the letters and notices are so nebulous that
    the person receiving the notice does not even know what the
    violation was. We have a realty company in Houston manages many
    shopping malls, and in one particular shopping mall there is 40
    parking places that are painted blue and ADA compliant, but
    they are still sued because the violation does not allege--or
    the letter does not allege what the specific violation is.
        So this bill will require basically three things. That they
    be put on notice so that they can fix the problem before there
    is a lawsuit--if that is the goal, to fix the problem, put the
    business on notice. If the business does not respond to this
    notice within 60 days, lawsuit commence. If the business then
    does not fix the problem with 120 days--and I think that can be
    worked on, how many days--file the lawsuit. That does not
    prohibit the citizen from filing and getting their day in
    court.
        But if we want to fix the problem, let's fix the problem.
    It also allows for arbitration if the sides want to arbitrate.
    It is not required under the law. It is voluntary. And it also
    requires that the Justice Department come up with some very
    working with the industry and the people in the ADA community,
    different models on how they can educate all businesses
    throughout the country on what the ADA says, and how they can
    comply with the law as it is written.
        So that is why that this legislation is--it is to put them
    on notice, fix the problem, get it ADA compliant. It is not to
    really allow for these frivolous lawsuits to be--the money
    going to I think the attorneys rather than fixing the problem.
    And I will yield back my time, and that is the way it is. For
    the Chairman.
        [The prepared statement of Mr. Poe follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. And I thank the gentleman. And I would now
    recognize our second witness, Representative Calvert. And, sir,
    if you would make sure that microphone is on.

      TESTIMONY OF THE HONORABLE KEN CALVERT, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Mr. Calvert. Thank you, Mr. Chairman, distinguished Members
    of the Subcommittee on the Constitution of Civil Justice. I
    thank you for the opportunity to testify today on H.R. 241, the
    ACCESS Act. As you know, the ADA has been mentioned as
    undoubtedly one of the most important pieces of civil rights
    legislation that we passed in this country. We can all agree
    that providing all Americans with access to public
    accommodations is an invaluable legislative objective. The
    purpose of ADA is to ensure access to disabled--to the public
    accommodations, provide appropriate remedial action for those
    who have suffered harm as a result of noncompliance.
        Although there are times when litigation by harmed
    individuals is necessary, there is an increasing number of
    lawsuits brought under the ADA that are based upon a desire to
    achieve financial settlements rather than achieve the
    appropriate modifications for access. These lawsuits filed by
    serial litigants, often referred to as drive-by lawsuits, place
    exorbitant legal fees on small business. Oftentimes business
    owners are even unaware of the specific nature of the
    allegations brought against them.
        In early 2011, frivolous ADA lawsuits against small
    businesses reached an all-time high throughout California. As a
    result, my good friend and colleague, former Congressman Dan
    Lungren, championed the issue and introduced the original
    ACCESS Act in the 112th Congress. I was pleased to have been
    afforded the opportunity to take over the legislation for
    reintroduction beginning in the 113th Congress.
        In January 2015, I reintroduced the legislation H.R. 241,
    the ACCESS Act. H.R. 241 is a cost-free common-sense piece of
    legislation that would alleviate the financial burdens small
    businesses are facing while still fulfilling the purpose of
    ADA. Any person aggrieved by a violation of ADA would provide
    the owner or operator with a written notice of violation
    specific enough to allow such owner or operator to identify the
    barrier to their access.
        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 have 120 days to make the improvement.
    The failure to meet any of these conditions would allow the
    lawsuit to go forward.
        Without question, we must ensure that individuals with
    disabilities are afforded the same access and opportunities as
    those without disabilities. As a former small business owner
    and restaurant owner, I personally have had to deal with these
    serial litigants. And I can say for certain that frivolous
    lawsuits do not accomplish any goal. Allowing small business
    owners to fix ADA violations within 120 days rather than
    waiting for lengthy legal battles to play out is a more
    thoughtful, timely, and reasonable approach.
        While the ADA is a national law, as I mentioned earlier,
    California has become ground zero for ADA violation lawsuits.
    In fact, California is home to more Federal disability lawsuits
    than the next four States combined. A 2014 report determined
    that since 2005, more than 10,000 Federal ADA lawsuits have
    been filed in five States with the highest disabled
    populations, 7,188 of which were filed in California.
        As of 2014, according to the U.S. Census Bureau, 31
    attorneys made up 56 percent of those Federal disability
    lawsuits in California. Those figures and the real-life toll it
    takes on small business owners are why I introduced the
    legislation to allow for a ``fix-it period.''
        However, it is clear that it is not just a major problem in
    California. The introduction of similar legislation by the
    gentleman from Texas, Mr. Poe, shows just that. His legislation
    authorizes a training education component for affected
    communies and Certified Access Specialists which I certainly
    would welcome and embrace as an amendment to my legislation.
        This is also a bipartisan issue supported by States. I was
    pleased to see the California SB 269, the text of which I would
    like to submit for the record as well as a related article,
    passed unanimously in the State Assembly and Senate, it was
    signed into law by Governor Jerry Brown on May 10, 2016, just a
    week ago. The legislation authored by my friend, a democrat,
    State Senator Richard Roth, is similar to the ACCESS Act in it
    allows businesses to take immediate steps to become accessible
    by providing them with 120 days from receipt of a Certified
    Access Specialist report to resolve any identified violations
    without being subject to litigation costs or statutory
    penalties.
        I worry that with California acting to curb these lawsuits,
    some of these serial litigants will try their trade in other
    states. Maybe they will move next door to Arizona. Without
    question, the ACCESS Act would ensure that the ADA is used for
    its true purpose of guaranteed accessibility to public
    accommodations for all Americans while eliminating abusive,
    costly, and unnecessary lawsuits for small business owners.
        Once again, I appreciate your time today, and stand ready
    to assist in any way possible to ensure that this legislation
    moves forward. Thank you.
        [The prepared statement of Mr. Calvert follows:]
               Prepared Statement of the Honorable Ken Calvert,
           a Representative in Congress from the State of California
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                  __________

        Mr. Franks. And I thank the gentleman. In fact, I would
    like to thank both Representative Poe and Representative
    Calvert for their time and expertise. I am grateful for your
    testimony. And I would now like to invite the members of our
    second panel of witnesses to come forward.
        I want to welcome all of you.
        Our first witness on this panel is Lee Ky. Ms. Ky operates
    and manages a donut shop owned by her mother. Her family's
    business has been the subject of abusive ADA lawsuits.
        Our second witness is Mili Shah. Ms. Shah is an attorney
    and a hotel owner in Atlanta, Georgia.
        Our third witness is Kelly Buckland. Mr. Buckland is the
    executive director of the National Council on Independent
    Living. And our fourth and final witness is David Weiss. Mr.
    Weiss is executive director, executive vice president, and
    general counsel of DDR Corp, a company that owns and manages
    retail properties.
        Each of the witnesses' written statements will be entered
    into the record in its entirety, and I would ask that each
    witness summarize his or her testimony in 5 minutes or less. To
    help you stay within that time, there is a timing guide in
    front of you. The light switch from green to yellow indicates
    that you have 1 minute to conclude your testimony. When the
    light turns red, it indicates that the witness' 5 minutes have
    expired.
        Before I recognize the witness, it is a tradition of this
    Subcommittee that they be sworn, so if you would please stand
    to be sworn. For those of you that cannot stand, just--do you
    solemnly swear that the testimony that you are about to give
    will be the truth, the whole truth, and nothing but the truth,
    so help you God?
        Let the record reflect that the witnesses answered in the
    affirmative. I would now recognize our first witness, Ms. Ky,
    and I would turn that microphone on if you--and pull it close
    to you.
        Ms. Ky. Can you hear me?
        Mr. Franks. Yes, ma'am.
        Ms. Ky. Thank you.
        Mr. Franks. Thank you.

             TESTIMONY OF LEE KY, MANAGER, DOUGHNUTS TO GO

        Ms. Ky. Hi. My name is Lee Ky, and I live in Reedley,
    California. I am here to express my concern regarding the
    Americans with Disability Act, and how it is being used toward
    our businesses. I understand that our business 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.
        The public buildings should have accessible entrance and
    doors for both wheelchairs and stroller users. Public
    facilities that have an eating area and restroom 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. An eating area should not have a sign that say
    ``for wheelchair only.'' Accessible buildings allow people with
    disability to become more independent and self-sufficient. As
    for me, I appreciate business that have accessible facility.
        But personally, it does not matter if the grab bar is at 37
    inches or at 32 inches on either side as long as it is
    providing and is there and 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 regulation related to ADA. Not all
    businesses are up to date--up to code with the ADA guidelines
    of the ADA regulations, because due to lack of information from
    our city, State, also Federal, not informing the public
    regarding the changes.
        My mother has two donut shops, and has been sued at both
    location for alleged ADA violations. It is not fair for
    business owners to receive a lawsuit package from law firm that
    is out of our city and county limits. Prior to filing a
    lawsuit, notification be sent to a business if their facility
    inaccessible. That mean inside of the building has obstacle or
    steps, or the entrance into the facility is too narrow.
        Now that business facility is not up code with the ADA,
    therefore the particular places or business should be corrected
    immediately with penalty. However, my mom's donut shops in the
    city of Reedley was built in 2000, and do not have
    architectural barriers. I would know. I am there. All
    businesses should have 30 days to correct minor violations and
    120 days for correct constructional barriers.
        In my experience, the carpet or the mats have never become
    entangled in my wheelchairs. If the ADA regulation remain the
    same and require business to remove all 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 and where I should sit.
    The ADA should concentrate on accessible curbs and ramps that
    do not wrap around the building and the back-door access only.
        Generally, when I enter through the back door, I feel like
    business 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 lawyers think that they are only helping the
    disabled community--that they are helping disabled community.
        Moreover, they are separating the disabled community and
    the able community. The lawyers are causing the able-body
    community to dislike the Americans with Disability Act. This
    makes the rest of small business owners, who are trying to earn
    an honest living, look bad.
        Throughout my life, people are generally are very helpful.
    When I am out and about in the community, 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.
        Personal experience: I was at downtown state capitol and
    had to use a restroom. I spotted a bar and a restaurant and I
    asked if I could use the restroom. Then they asked me if I am
    going to buy a drink. My aid responded, ``No, she does not
    drink. But she need to go to the restroom.'' No, they did not
    give me permission to use the restroom.
        Since the ADA lawyers are going to sue small business, they
    are posting sign on their windows: ``No Public Restroom.'' I
    would like to see the ADA regulation of Federal law to be fair
    and not be taken advantage of or misused by people that know
    the laws, such as lawyers and certified access specialist
    person.
        I believe our elected official and city inspectors should
    inform the public of all new laws and changes. If this is
    unnecessary, money-hungry ADA lawsuits continue, many business
    will be forced to shut down and there will be many empty
    buildings in our community because they do not have the money
    to pay off the lawsuit.
        To me, this is wrongdoing and misusing the ADA. I noticed
    that Governor Jerry Brown signed SB 269, which eliminate
    minimum statutory damages for certain minor or technical
    violations of the ADA. In my opinion, lawsuit is still a
    lawsuit. Does not matter if the amount is reduced. Thank you.
        [The prepared statement of Ms. Ky follows:]
             Prepared Statement of Lee Ky, Manager, Doughnuts To Go
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. And I thank Ms. Ky. And I now recognize our
    second witness, Ms. Shah. Ms. Shah, is that microphone on?
        Ms. Shah. Chairman Franks----
        Mr. Franks. Shah, would you turn that microphone on?
        Ms. Shah. It is on. Chairman Franks, Ranking Member----
        Mr. Franks. Ms. Shah, you may have to bring that closer to
    you. I am not sure what----
        Ms. Shah. Can you hear me?
        Mr. Franks. Yes, ma'am.

            TESTIMONY OF MILI SHAH, HOTEL OWNER AND ATTORNEY

        Ms. Shah. Here we go. Chairman Franks, Ranking Member
    Cohen, and distinguished Members of the Subcommittee, thank you
    for the opportunity to testify today. It is an honor to appear
    before you to share my story.
        My name is Mili Shah, and I am a second-generation hotelier
    and attorney from Georgia. My parents migrated from India in
    the 1980's, and bought their first hotel in Milledgeville,
    Georgia. I spent the first 8 years of my life on the third
    floor of Days Inn, a place I called home. Thirty years later,
    my family owns several hotels that employ nearly 400 people.
        I, personally, own two hotels in Atlanta, Georgia, that
    amount to nearly 150 guest rooms and employ over 20 dedicated
    employees. I am also here representing the Asian American Hotel
    Owners Association. AAHOA members own over 40 percent of all
    hotels in the United States and employ over 600,000 American
    workers, accounting to $10 billion in payroll annually.
        Recently, small businesses have come under attack by
    unscrupulous attorneys and professional plaintiffs seeking to
    make a quick buck. To advance their corrupt goals, these bad
    actors manipulate one of the most important civil rights laws
    in our country, the Americans with Disabilities Act. I was
    recently sued for allegations and violations of the ADA at my
    hotel in Atlanta. I was surprised to think that a guest at my
    hotel was denied service.
        I contacted the general manager to learn that the plaintiff
    had never actually stayed at our hotel, nor was there any
    evidence that he or his attorney had visited the property. The
    claims in the complaint were extremely vague and general. Among
    several broad issues, he stated a failure to provide accessible
    entry into our hotel's pool.
        My swimming pool at my hotel has been closed since the day
    I purchased it. It is empty and covered with a tarp. Was I
    being sued for failing to provide entry into a part of my hotel
    that has always been closed to the public?
        I researched the plaintiff and his attorney and found that
    they have sued nearly 100 businesses, and each suit is almost
    identical. In fact, the same plaintiff and the same attorney
    has sued my father with the same complaint at one of his
    hotels. It is clear that this plaintiff has no desire to stay
    at the properties, and that the attorneys are using him as a
    proxy.
        I now have two options. I can either fight the suit,
    subject my business, employees, families, to months of
    intrusion and litigation, and pay thousands of dollars in
    defense fees. Or, I can settle with the plaintiff and pay his
    attorney thousands of dollars, in which the attorney will
    likely be the only one with the financial gain.
        We cannot afford to pay out settlement after settlement and
    defend against meritless suits aimed at preying on our fears.
    Hoteliers are targeted because so many of us are minorities.
    Settling would imply that I am guilty of violating a civil
    rights law. It would send a signal to my customers that my
    hotel is substandard and that I do not care for my guests. An
    adverse decision could impact my ability to attract new
    customers and to finance additional properties and grow my
    business. It is a no-win solution.
        We need to find a solution that discourages attorneys from
    abusing the ADA for dishonest purposes. H.R. 3765, the ADA
    Education and Reform Act, is a vehicle that balances the
    important protects conferred by the ADA with affording small
    business owners the opportunity to address any issues that may
    exist. The bill requires a detailed description of a potential
    problem, a requirement to provide notice, and a cure period in
    order for the owner to recognize and address the areas of
    concern. It will also provide a collaborative solution that
    promotes improved accessibility.
        Mr. Chairman and Members of the Committee, thank you for
    the opportunity to testify before you today. I appreciate your
    listening to how an unscrupulous attorney has targeted me and
    several others in an effort to extort money under the guise of
    promoting accessibility under the ADA. We are hoteliers. We are
    in the business of hospitality. The crux of our industry is to
    provide a welcoming, comfortable, and enjoyable environment for
    all of our guests.
        I ask you to consider my story when evaluating H.R. 3765.
    Please help protect small business owners like myself who
    simply want to run our business free from fear that the next
    envelope we open might be a lawsuit that closes the doors to
    our hotels. Thank you.
        [The prepared statement of Ms. Shah follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. Thank you, Ms. Shah. And I would now recognize
    our third witness, Mr. Buckland. And Mr. Buckland, is that
    microphone close to you and on, sir?
        Mr. Buckland. Can you move it a little? Can you hear me,
    Mr. Chairman?
        Mr. Franks. Yes, sir.

       TESTIMONY OF KELLY BUCKLAND, EXECUTIVE DIRECTOR, NATIONAL
                     COUNCIL ON INDEPENDENT LIVING

        Mr. Buckland. Mr. Chairman and Ranking Member Conyers and
    Members of the Subcommittee, my name is Kelly Buckland. I am
    the Executive Director of the National Council on Independent
    Living. NCIL is the oldest cross-disability national grassroots
    organization run by and for people with disabilities. We go by
    ``NCIL,'' all right?
        NCIL membership includes people with disabilities, Center
    for Independent Living, statewide independent living councils,
    and other disability rights organizations. NCIL advances the
    independent living and the rights of people with disabilities,
    and we envision a world in which people with disabilities are
    valued equally and participate fully. Centers for Independent
    Living address discrimination and barriers that exist in
    society through direct advocacy.
        These barriers are sometimes architectural, but more often
    reflect attitudes and principles that have been reinforced for
    generations. They have deterred people with disabilities from
    working, leaving many in poverty and unjustly detained in
    institutions.
        As my own life experience has proven, with increased
    opportunities, individuals with disabilities can claim their
    civil rights and participate in their communities in the same
    way that people without disabilities do. I broke my neck in a
    diving accident on July 26th, 1970. I have used a wheelchair
    ever since.
        Coincidentally, the Americans with Disabilities Act was
    signed into law on July 26th, 1990 by President George H.W.
    Bush, exactly 20 years to the day after I got my disability.
    Therefore, I had 20 years of experience living with a
    disability prior to the Americans with Disabilities Act. And
    now I have 26 years of experience living with a disability
    post-ADA. Fortunately, the ADA has literally changed the face
    of the globe.
        Although I am honored to be here, I am here to testify in
    opposition to these so-called ADA notification bills. As
    Congressman Sensenbrenner, Conyers, and Nadler know, the
    original ADA and the 2008 amendments which were passed and
    signed into law passed because people with disabilities,
    bipartisan lawmakers, and businesses worked together.
        The various efforts to make it harder to bring a title III
    lawsuit have never followed the same process and never enjoyed
    support from people with disabilities or the organizations that
    support them, or the organizations that represent them.
        People with disabilities do not want more lawsuits, we want
    more accessibility. Adding a notification requirement will not
    make the multiple lawsuit phenomenon go away. It simply sends
    the message to business owners that they do not have to worry
    about complying with the ADA until they get a letter. In most
    parts of this country, it is very difficult to find a lawyer
    who is interested in bringing an ADA complaint against a place
    of public accommodation, because they cannot collect damages.
        When the ADA was enacted as a compromise between the
    disability and business community, the disability community
    gave up the ability to obtain damages under title III of the
    ADA by allowing injunctive relief and attorneys' fees.
    Unfortunately, there are still businesses, and companies who
    have yet to comply with this important civil rights law even
    after 26 years.
        The problem here that these bills are trying to address
    have little to do, if anything, with the ADA. Title III again
    does not provide for damages. Settlements or court orders only
    can involve attorneys' fees. And in the States that some of the
    witnesses are from, those States' statutes, like California
    which has been mentioned, allow the people to get damages. That
    is why California changed its law. Damages are not allowed in
    the ADA.
        There is no need to change the Americans with Disabilities
    Act. There is lots of information out there. There is lots of
    technical assistance people can get on how to comply with the
    law. There is even a phone line you can call and get
    information; and there is a website. There is lots of free
    technical assistance to businesses who actually want to comply
    with the law.
        The ADA does not require businesses to do anything that
    would be considered an undue burden, which means that it is not
    readily achievable and--or I mean that it is readily achievable
    and it can be accomplished without much difficulty or expense.
    And I just want to say some of the stuff that has been--I am
    going to not go through the rest of my written testimony.
        But some of the stuff that is been talked about around
    building stuff and people who need to come in compliance--the
    State that I hail from, Idaho, we changed the building code in
    the State so that when people do get a building permit, their
    building is going to be built according to the Americans with
    Disabilities Act.
        And the Act really gives people ranges that they have to
    put stuff into. Like for instance, that Ms. Ky can fit under
    this table--I cannot. That is why the Act allows for ranges
    instead of exact numbers that have to be met.
        So with that, Mr. Chairman, I know my time is running out,
    but just in closing, I would like to recognize Yoshiko Dart,
    the wife of Mr. Justin Dart, who is known as the father of the
    ADA, in the building. With that, Mr. Chairman, thank you very
    much.
        [The prepared statement of Mr. Buckland follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                   __________

        Mr. Franks. And thank you, Mr. Buckland, and welcome. I
    would now recognize our fourth and final witness, Mr. Weiss.
    Sir, is that microphone on, and close?
        Mr. Weiss. Yes. Can you hear me?
        Mr. Franks. All right, yes, sir.

          TESTIMONY OF DAVID WEISS, EXECUTIVE VICE PRESIDENT
                      & GENERAL COUNSEL, DDR CORP.

        Mr. Weiss. Good morning, Mr. Chairman, Ranking Member
    Cohen, Mr. Conyers, and Members of the Subcommittee. My name is
    David Weiss. I am executive vice president and general counsel
    of DDR Corp. I have been in practice for almost 30 years, and
    general counsel since 2003. DDR is a New York Stock Exchange-
    traded real estate investment trust. We own over 350 properties
    around the country and Puerto Rico, and have over 113 million
    square feet.
        Our tenants are some of the most recognizable national,
    regional, and local retailers. I am here to testify today on
    behalf of the International Council of Shopping Centers, or
    ICSC, the global trade association for the shopping center
    industry. With over 70,000 members in over 100 countries, they
    represent a wide variety of owners, managers, and other
    professionals related to real estate.
        First and foremost, let me say that the ICSC vigorously
    supports both the letter and the intent of the ADA. We
    recognize and applaud the positive impact that the ADA has had
    on our society. We also support H.R. 3765, introduced by
    Congressman Poe and cosponsored by Congressman Peterson, as
    ways to strengthen accessibility, the primary goal of the ADA.
        Frankly, I think the legislation that we are talking about
    today is misunderstood. There is actually quite a bit of
    agreement related to the legislation. As Mr. Buckland noted,
    people with disabilities do not want more lawsuits. They want
    more accessibility. Frankly, we could not agree more. We all
    share the goal of more accessibility. We want full compliance.
    We want it faster, with less cost, and we want more resources,
    not less, devoted to improving accessibility.
        As an industry, our interests are aligned with the goals of
    the ADA. First of all, and foremost, it is the right thing to
    do. Many of us have experienced the challenges faced by family
    and friends who are disabled.
        Second, it is in our economic best interest to do so. There
    is a fundamental misunderstanding and misconception that
    businesses do not support or want to comply with the ADA. Let
    me be very clear: more people visiting our shopping centers and
    properties is a good thing. We work with our tenants
    inexhaustibly to find ways to encourage more, not less, people
    to come to our properties, and we spend millions of dollars
    each year to accomplish this.
        Let me be clear again on an area where I think there is
    also agreement, and that relates to the bad apples. For those
    persons who flaunt the ADA, they deserve the full weight of
    enforcement. If they choose to ignore compliance, and a lawsuit
    and the threat of attorneys' fees as the only way to force
    compliance, then so be it.
        But on the other hand, if a simple notice is the fastest
    and cheapest way to solve many unintended and often minor areas
    of noncompliance, why would we not encourage that?
    Unfortunately, not everyone agrees with Mr. Buckland. Lawsuits
    by a small group of lawyers have skyrocketed. Sixty-three
    percent increase from 2013 to 2014, over 4,700 lawsuits filed
    in 2015.
        Unfortunately, there are some whose interests are not
    aligned with the ADA. These attorneys take a different
    approach. They file first, ask questions later. They sue,
    settle, and move on. Their interest is not in actually
    improving accessibility but rather only in--in only earning
    attorneys' fees. Many never visit the property, cannot tell you
    what violations may be there, and never bother to confirm
    whether any alleged violations have been resolved.
        So why do we support this legislation? Because it gives the
    good apples a 60-day window to respond to claims without an
    immediate lawsuit. It gives 120 days for the opportunity to
    cure any potential violations. I think we can all agree that
    this is the fastest, most efficient, and most cost-effective
    way to achieve compliance.
        And secondly, let's not forget it also enhances education
    and training and encourages the use of alternative dispute
    resolution to actually speed up enforcement.
        And then let's also be clear about what this legislation
    does not do. It does not stop the right to sue for
    noncompliance. It does not limit the ability to recover
    attorneys' fees. It does not change the Department of Justice
    enforcement rights. It does not change State laws. What it will
    do is encourage compliance and stop the unfortunate abuse of
    tactics of a few.
        With that, I thank you for this opportunity to testify
    today, and I look forward to answering any questions that you
    might have.
        [The prepared statement of Mr. Weiss follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                   __________

        Mr. Franks. Thank you, Mr. Weiss. And thank you all for
    your testimony. We will now proceed under the 5-minute rule
    with questions. And I will begin by recognizing myself for 5
    minutes. And Ms. Ky, if it is all right, I will begin with you.
        Ms. Ky, this proposed 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. As a business owner, as someone disabled, do you believe
    it is fair to the disabled to require notice and an opportunity
    to fix a violation before a lawsuit can be filed?
        Ms. Ky. It is fair to insert issue and ensure it is
    itemized. The reason--I believe it is fair because there is so
    many new update, law, regulation that all you had written to--
    for example, for my mom's shop, there were seven items
    unnecessary. It was a sticker note that [unintelligible] for
    the exit sign. The incorrect symbol of the restroom, the
    doorknobs, the mats--that is simple.
        I was not aware of the new regulation. So if you all that
    making changes, let us know, and this will not happen. If the
    community--if the citizen knows, if this would not happen. I
    would like to say something. I do not think your building here
    is accessible. I went to the woman's restroom. It is not
    accessible.
        And you guys create and make the laws, and your building is
    not accessible. So how do you expect a normal citizen to follow
    your rules if you are not doing it yourself?
        Mr. Franks. Thank you, Ms. Ky. Ms. Shah, critics of
    legislative efforts to allow for a cure period prior to
    commencing a lawsuit under title III of the ADA have argued
    that the property owners have a legal obligation to ensure
    their property is accessible to the disabled. These critics
    argue that a notice-and-cure legislation would create a further
    incentive for property owners not to comply with ADA until they
    are sued. And how would you respond to that criticism?
        Ms. Shah. Thank you, Mr. Chairman. You know, I would
    respond to the critics by saying that the fact that they are
    having an issue with the grace period to begin with shows and
    implies that they are not here to promote accessibility. All of
    us here in this room support the ADA, support Americans with
    Disabilities. We promote it. We think it is great for America.
        In fact, we want to fix any issues, because ultimately that
    attracts customers to our business, and we want to grow our
    business. So we are automatically incentivized. So a notice-
    and-cure provision would help us fix any areas of concern, and
    promote the accessibility versus just the attorneys filing
    lawsuits immediately to get attorneys' fees.
        Mr. Franks. Thank you, Ms. Shah. Mr. Weiss, has there been
    an increase in ADA litigation under title III, and if so, could
    you provide the Committee with some background on that
    increase?
        Mr. Weiss. Yes. I would be happy to. Yes, the number of
    cases has grown dramatically over the last few years. And
    frankly, that is really the driving need for this legislation.
    This is both a growing and expanding problem, and actually just
    continues to grow.
        As I mentioned in my opening remarks, there has been a 65
    percent increase from 2013 to 2014, and the numbers just
    continue to grow and grow. In particular, there are certain
    States where these cases are growing the fastest--California,
    Florida, New York, Texas, Arizona. Those combined had the
    largest number of suits filed, over 80 percent of them filed
    nationwide. California has approximately 40 percent of the
    lawsuits, but only frankly about 12 percent of the disabled
    population there. So this is an ongoing and continuing problem.
        Mr. Franks. Well, thank you, sir. And I will now recognize
    the Ranking Member, Mr. Cohen, for 5 minutes.
        Mr. Cohen. Thank you, sir. Mr. Weiss, is the fact that
    California has got their State law, and I think I heard that it
    includes damages--could that not be the reason why there is so
    many of those cases in California?
        Mr. Weiss. No, I do not think so. Obviously, the ADA has
    been in effect for 25 years. I think we all would agree it is
    had a dramatic impact across the country, so much so that it is
    just a part of the way of doing business. In our industry, it
    becomes second nature. We are constantly updating our
    properties and ensuring compliance with them. The issues that
    we are having here are very specific, and this legislation----
        Mr. Cohen. Well, let me ask you this. I know we have
    limited time. Why do you think California is particularly
    litigious? That is the question.
        Mr. Weiss. I cannot tell you exactly why some States over
    others, but I can just tell you that it is growing nationwide--
    --
        Mr. Cohen. But you specifically mentioned Texas, Arizona,
    California, and Florida. There has got to be some--are those
    not the States you mentioned?
        Mr. Weiss. That is where there are the most cases, but
    there are cases across the country.
        Mr. Cohen. I am hip to that.
        Mr. Weiss. Many States are without----
        Mr. Cohen. But the fact is there has got to be a reason why
    those four are more than the other 46. You do not have a
    thought. Mr. Buckland, do you have a thought?
        Mr. Buckland. Mr. Cohen, I do. Those are the States that
    allow damages.
        Mr. Cohen. All four of those States allow damages?
        Mr. Buckland. Yeah.
        Mr. Cohen. How many other States allow damages? Do you
    know?
        Mr. Buckland. There is about 10 in total.
        Mr. Cohen. If there is 10 total, and these are four of
    them, that seems like what they have got in common, and that is
    not a national problem. It seems like that makes--it is not--
    Ms. Shah, you grasp that, do you not?
        Ms. Shah. I am sorry.
        Mr. Cohen. You grasp the fact that those four States, 4 of
    10, and that that might be the unifying or unique factor that
    causes the burgeoning lawsuits there and not something with the
    ADA in general?
        Ms. Shah. Sure, but it is a problem across the United
    States. You know, there are properties--my property is in
    Georgia and the same attorney and the same plaintiff have filed
    the same lawsuit 100 times.
        Mr. Cohen. In Georgia. Is it a Georgia lawyer?
        Ms. Shah. Correct, yes.
        Mr. Cohen. Let me ask you this. You heard what I was saying
    in my opening remarks about the possibility of having some type
    of damages for the folks that do not comply if there was a
    notice provision. Would you agree that there needs to be some
    type of a stick to punish more harshly with some sanctions the
    folks that do not comply within the 120 day period?
        Ms. Shah. Yes, and the whole idea is that you would be able
    to file the lawsuit. The first----
        Mr. Cohen. But that is already available. Should there not
    be something extra?
        Ms. Shah. Such as what?
        Mr. Cohen. Such as sanctions, damages, liquidated damages,
    some amount of----
        Ms. Shah. Yeah, I mean, exactly. You cannot pull that and
    impose sanctions. But remember, at the same time, we are also
    trying to run our business, and so we are doing the best we
    can----
        Mr. Cohen. But you are a good guy. I am talking about the
    bad guys.
        Ms. Shah. Of course, the bad guys do need sanctions.
        Mr. Cohen. Right, so you would agree that--Mr. Weiss, do
    you agree that that would be something that would make your
    proposal better?
        Mr. Weiss. Well, frankly, let me start on this damages
    issue, which you have raised before. First of all, we are not
    talking about making changes, under--fundamental underlying
    changes, to the ADA. We are talking about legislation which is
    narrow and focused to a particular abuse for an existing
    enforcement mechanism. Secondly, I am not sure that damages
    actually will reduce the problem. In fact, it may well
    encourage them. More damages means more lawsuits. More lawsuits
    means more attorneys' fees. It means more time and resources.
        Mr. Cohen. But if the damages are only for the--damages are
    only for the people that did not comply with this program. You
    know, your program does have a lot of beneficial purposes;
    yours or Ted's or whoever's it is, but I can see the benefits
    in getting compliance. But for the folks that do not comply,
    why not--the damages are not going to be a problem for the good
    guys. It is only going to be for the bad guys, and bad guys
    always have to be punished.
        Mr. Weiss. I think your underlying assumption is that this
    is only a damages issue. Take Florida for instance.
        Mr. Cohen. No, I am not saying it is only a damages issue.
    It is probably a damages issue because where the litigation has
    exploded, but what I am talking about damages is a way to have
    another lever out there to make people comply. All you have got
    is the notice.
        What you make is harder to bring a lawsuit, and
    disincentivizes lawyers from being involved in the process,
    which will probably result in less notice of actual problems.
    If you are going to do that, do something that does not--you
    know, you do not want to have overkill and help the good guys
    at DVR, but not the bad guys at EEQ.
        Mr. Weiss. With all due respect, Mr. Cohen, I do not think
    this inhibits the enforcement of the ADA. I think it actually--
    it helps enforcement and here is why.
        Mr. Cohen. Mr. Buckland, Mr. Buckland----
        Mr. Weiss. We could have----
        Mr. Cohen. Mr. Buckland, why do you--do you think it
    inhibits from----
        Mr. Buckland. Absolutely, there is no other civil rights
    statute that requires notice to be able to fix the problem
    before you can bring suit; no other civil rights. But they are
    wanting to put it in this one.
        I will give you a couple of examples; like I was in
    Virginia Beach. There is a timeshare down there and if we sat
    through like a--I am sure a lot of you have experienced this.
    If you sit through a presentation, they give you some reward,
    right, so the reward was to be able to go on this whale
    watching tour.
        So we sat through the presentation, me, my wife, and my son
    sat through the presentation. They gave us our whale watching
    tickets and, by the way, none of the timeshares--I could not
    have purchased any of the timeshares because they are all
    inaccessible. Not a single timeshare did not have a step in
    front of it. So they are all inaccessible.
        So then we go to the whale watching tour and they tell me
    they do not take people in wheelchairs on their tours.
        So I talked to the guy that took the tickets and said,
    ``Are you aware of the Americans with Disabilities Act?''
        He said, ``Yes, that does not apply to us.''
        I said, ``Where is the manager? Can I speak to the
    manager?''
        ``I am the manager.''
        I said, ``You still do not think the ADA applies to you,''
    and he said, ``No.''
        So when I got back home I talked with the Department of
    Justice and we went into where you work it out between you. We
    did that. They, with very little expense, built a ramp to the
    boat. Now they take people with disabilities on their whale
    tours.
        Another one that just happened like very recently, is there
    is a business association here in Washington D.C. that I went
    to; could not get in. The front entrance is not accessible.
    Could not independently enter the building either. I told them
    all of that. I gave them resources to get information on what
    the fixes were.
        I checked back with them in about two and a half months
    later to see if they had made any progress on making their
    building accessible. I got no response, so I waited for about
    another 2 weeks, sent them another e-mail, asking if they had
    made any progress; no response. I did that three times with no
    response. So then I made a phone call. They were not in, so I
    left a message; no response to my phone call.
        Frankly, that is the--most of the responses that you get
    when you notify people that there is a problem; you do not get
    any return response. That is what has happened to me over and
    over.
        Mr. Cohen. Thank you sir, I appreciate it and my time is
    out. Thank you.
        Mr. Franks. I now recognize the gentleman from Iowa, Mr.
    King, for 5 minutes.
        Mr. King. Thank you Mr. Chairman, and I thank the witnesses
    for your testimony here today. I am just thinking about how the
    Americans with Disabilities Act in a way changed by what life,
    and I want to put this narrative into the record. I happened to
    have been the only public building in the community that was
    wheelchair accessible right after the passage of the ADA, and
    so they came and asked me; ``Would you be the host of the
    Republican caucus in your community?''
        And I said, ``Sure, I am happy to open up my doors and help
    people out,'' and then I became the chairman of that caucus,
    and now here I am in Congress.
        So I just slip that in as, I do not know how many different
    implications there are. I am sure it is affected your lives a
    lot more than it is affected mine, but it is ironic that, if
    that meeting had never taken place, who knows what I would be
    doing today?
        So I wanted to ask, and I wanted to ask especially Mr.
    Buckland, and I would ask if you could be brief in your
    analysis of this, but you lived through 20 years prior to the
    ADA in a wheelchair and 26 years afterwards, and you probably
    did not see the immediate results of that because we had a lot
    of new construction that took place, and refurbishing that took
    place. So I do not have any doubt that it changed a lot of
    accessibility and you have seen incrementally from your eyes.
        The question back then in 1990 was, do we require
    compliance with the ADA only on new construction or also for
    existing buildings and facilities, and I recall going in and
    doing curb cuts and making wheelchair accessible, and I am
    wondering why did we not think of that when we built the
    sidewalk in the first place?
        It was a huge oversight on the part of our society not to
    see how simple and how cheap that part of the ADA could have
    been. But what would it be like today, do you think, if the ADA
    had been written in such a way that new construction complied,
    but old construction was voluntary? What kind of progress do
    you think we would have made in the last 26 years?
        Mr. Buckland. Mr. Chairman, Mr. King, very little. I mean,
    if you walk around this town, most of this is old construction.
    So if we had not applied the ADA to existing structures,
    nothing here would be--not nothing, but a lot of the buildings
    here would not be required to comply.
        Mr. King. Okay, so do you think--and these buildings,
    especially, have got some of the oldest buildings here, and in
    my neighborhood, it would be different for different reasons.
    We have a lot of new sidewalks and a lot of new curb cuts would
    have been done. But I want to ask you on your perspective and
    you have given it to me and I appreciate it.
        And I would like to turn to Ms. Shah, and you mentioned
    that there are essentially a copy and paste, 100 lawsuits from
    a single lawyer, and though those lawyers in many cases--it is
    either you or Ms. Ky--that said that the lawyers had not been
    in the facility. So I will ask each of you but we will go first
    to Ms. Shah. What does that list of plaintiffs look like? When
    you have got a lawyer with 100 suits that are copied and
    pasted, what does the list of plaintiffs look like on each of
    those suits?
        Ms. Shah. In my case it is just one plaintiff, and so he is
    using--the attorney is using that one plaintiff to fish out
    other properties in the area and slap the same lawsuit on them.
        Mr. King. And have you looked at the plaintiffs in those
    other lawsuits that were filed by the same attorney? Could it
    be the same plaintiff in some of those cases or even all of
    them?
        Ms. Shah. Absolutely, yes. In this case, it is the same. I
    mentioned that my father received the same lawsuit, the same
    number of pages, the same attorney, same plaintiff at his
    property.
        Mr. King. Okay, but there are 98 others out there. What is
    the likelihood that that same plaintiff has also been utilized
    by the same attorney in a number of other cases, in addition to
    you and your father?
        Ms. Shah. There is a likelihood that there is the same
    plaintiff, same attorney. There is also other plaintiffs and
    other attorneys. So it is an ongoing case, right? I mean, you
    can have one plaintiff suing 100 properties using the same
    attorney, and that same attorney may want to settle 100
    properties and you average $5,000. That is a lot of money.
        Mr. King. Okay, so I am just trying to get this concept;
    how this works in the attorney's office. You have an attorney
    that is a hotel chasing attorney. And he decides: ``I have got
    a potential plaintiff here. I am going to contact him and the
    two of us can go together, and now we will file, potentially,
    100 lawsuits and you be the plaintiff.
        I will be the attorney and we will collect this at collect
    this money at the expense of the businesses,'' who never had a
    chance of a notice to cure; never an opportunity to even know
    that they were potentially out of compliance with the ADA. So I
    look at that and have these plaintiffs then--what is the
    likelihood that the plaintiff had never been in the building
    before the suit was filed?
        Ms. Shah. I think each case varies. In my case I looked
    back 1 year to check the reservations; if the first name and
    last name ever matched, and there was no record of that person
    ever staying at our hotel.
        Mr. King. Ms. Ky.
        Ms. Ky. Yes.
        Mr. King. Would you concur with the testimony of Ms. Shah
    in your experience?
        Ms. Ky. Yes, on that particular day, this individual sued
    three locations in our city; same person, and he does not live
    in the city. On that particular day, I was not at the shop. I
    came back from doing my errands and I got a package, and I
    asked everybody, ``Who is this person?'' No one knew who he
    was.
        I even asked the medical record--a medical facility that
    does provide wheelchairs, just to make sure if he is, you know,
    in the register with them or buy anything from them. They do
    not even know who he is. And recently, they did kind of
    investigate on this individual. He is able-bodied. He sits in
    the wheelchair. He goes to places, and he uses wheelchairs to
    get what he does, and he lift his wheelchair to put back in his
    truck. He has no----
        Mr. King. Is that not fraud? Would you say that is fraud?
        Ms. Ky. That is fraud, and that is why we are here is that
    we need to stop this. We need to stop this fraud. We need to
    stop this ridiculous using ADA to get what they want. Like, you
    know, Mr. Buckland said, that this facility--he contacted three
    times and they no response. Please, go sue them; double the
    price, whatever needs to be done. Yes, but, you know, give us a
    chance.
        Like I ask myself or Ms. Shah, that we do not have any
    barriers in our facility, no barriers; so just because we do
    not have the information that you folks change it, the lawyers
    have no right. It is not barriers. If it was barriers, please,
    come up to us. We have no problem.
        Mr. King. Thank you very much. I thank the witnesses and
    yield back.
        Chairman Franks. I thank the gentleman. And I would now
    recognize the Ranking Member, Mr. Conyers, for 5 minutes.
        Mr. Conyers. Thank you Chairman Franks, and I thank the
    witnesses.
        Could I begin by asking unanimous consent to enter into the
    record 14 letters from organizations that have a variety of
    objections to the measure that we are examining today--the
    Consortium for Citizens with Disabilities, Paralyzed Veterans
    of America, The National--The Leadership Conference on Civil
    and Human Rights, and plenty of others? Could I ask unanimous
    consent? They take strong exception to this measure, and I ask
    that these letters be included in the record.
        Mr. Franks. Without objection.*
    ---------------------------------------------------------------------------
        *Note: The material referred to is not printed in this hearing
    record but is on file with the Subcommittee and can be accessed at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104943
        Mr. Conyers. Thank you, Mr. Chairman. I wanted to just ask
    Mr. Buckland if--and we are all friends here--if Mr. Weiss'
    testimony raised any objections, in terms of your experience as
    someone that is disabled?
        Mr. Buckland. Well, Mr. Chairman and Mr. Conyers, I mean,
    the whole issue around the written notice, and you have to wait
    a certain time for it to cure--all that stuff, like I said in
    my testimony, I think that will incentivize businesses to not
    do anything until they do get a letter.
        So, yeah, I take exception to that. I also think that,
    like, just naming the number of lawsuits does not mean that is
    a bad thing. If those businesses were out of compliance, then
    why is that a problem that they got sued for being out of--for
    breaking the law? I do not quite understand that. So there was
    no mention about whether or not they were valid complaints.
    They were just the numbers. So, I am not sure that that--this
    results in being a bad thing.
        Mr. Conyers. Would it be helpful if the Committee knew what
    the results of all those lawsuits were?
        Mr. Buckland. Yes, I think it would, and then I also think
    that the Department of Justice could provide this Committee
    with some information about how many complaints they have
    received, what the complaints were about, how the complaints
    were resolved, that sort of stuff.
        Mr. Conyers. Mr. Chairman, I am hoping that we might be
    able to follow through on both my suggestion and Mr.
    Buckland's, in terms of getting a little bit more detail on
    some of these cases.
        Now, Mr. Buckland, we have four witnesses here this
    morning. You are the only one that is opposed to this measure,
    and so I wanted to ask you: what does the pre-suit notification
    mean for the private enforcement of the ADA, and what would
    happen if enforcement is left only to the Attorney General if
    private lawyers stopped bringing cases?
        Mr. Buckland. Well, I think you stated the obvious, Mr.
    Conyers. Like, what will happen if we are--if our ability to
    file suits is impeded, and we have less enforcement and, like I
    mentioned before, the businesses will just wait until they get
    a letter.
        Our experience really has been, as I mentioned, it is
    difficult to find attorneys that will take cases, except for
    those States that allow damages. And so I think this is really
    more of a State legislation issue than it is with the Americans
    with Disabilities Act.
        Mr. Conyers. Yes, I do too. Proponents now of pre-suit
    notification argue that it is reasonable to give businesses the
    opportunity to cure a violation before a lawsuit commences. But
    how might such a notification scheme affect voluntary
    compliance?
        Mr. Buckland. Well, again, it would impede our ability to
    make businesses comply because you would have that waiting
    period, the notification. It would dis-incentivize attorneys,
    but I want to ask the opposite question. Why do they need to be
    notified? The Americans with Disabilities Act is out there.
        There is lots of information about how you comply. I
    mentioned that before. There are 10 ADA centers, one in each
    region of the country, and they have expertise on the Americans
    with Disabilities Act; what it requires to comply. They will
    even come out to your business and talk to you about what you
    need to do. So they should be proactive, and they should be--
    they know the law is there. They should get the technical
    assistance. They should come into compliance.
        Mr. Conyers. I think that is a very good response, and you
    have answered all my questions very appropriately. And, Mr.
    Chairman, I yield back the balance of my time.
        Mr. Franks. And I thank the gentleman, and I now recognize
    the gentleman from Florida, Mr. Deutch for 5 minutes.
        Mr. Deutch. Thank you Mr. Chairman, and thank you for
    holding this hearing. The Americans with Disabilities Act
    fundamentally changed our society for the better. It both
    literally and figuratively opened the doors of public life that
    had been closed for too long, and I believe that any efforts
    that we undertake to address abuses under the current law have
    to protect the progress that has been made, and we have to
    continue to ensure that our society is open to everyone.
        The goal that we all share is widespread compliance, full
    compliance, with the ADA. Retrofitting older construction,
    ensuring that all new construction is built inclusively from
    the start has always been the guiding principle.
        I appreciate that the original compromise that created the
    ADA was designed to balance our national interest in
    accessibility with a desire to make private businesses allies
    in this endeavor, rather than our adversaries.
        And I do not want to upset the original balance that makes
    it--that, anyway, would make it harder to work together toward
    our common goal of compliance. But I believe that we have to
    exercise strict oversight to ensure that we are achieving
    continued progress to accessibility. That is what the ADA is
    meant to provide, and if abuses of the process work against
    those goals, then I think it requires us to stop and pay
    attention.
        In Florida, which we talked about earlier, in my own State,
    more than one in five ADA claims filed last year originated in
    the southern district of Florida. Businesses have to retain the
    right to do the right thing, and it has to be an incentive for
    them to do the right thing. The threat of a lawsuit is
    powerful, and it works.
        But for honest, good faith actors who are making easily
    correctable small fixes, things that would take a few minutes
    to remedy, we have to have a process that allows them to make
    these fixes, to adjust a grab bar, to re-hang a coat hook, and
    to be able to do it quickly without a lawsuit. I do not take
    the idea of good faith lightly. It should be difficult, a
    difficult standard to meet.
        It should show that businesses are in partnership with the
    American people and creating a society that is accessible, and
    is welcoming to everyone; that public life is for everyone, and
    we want a society where small businesses can thrive doing
    business with everyone.
        Now, Mr. Weiss, I have been told that some of the worst of
    the repeat plaintiffs do not even bother to follow up to see if
    the infractions have been corrected, which tells me that
    complaints often are about--more about extracting money than
    about making a facility more accessible.
        The code enforcement officer in Delray Beach, in my own
    part of South Florida, was quoted as saying, ``They do not care
    if you fix it or not. The businesses pay between 5,000 and
    $12,000, and it goes away. People are taking complete
    advantage. It is a moneymaker. It has nothing to do with
    compliance.'' In your experience, what has been the follow-
    through of plaintiffs, post-settlement?
        Mr. Weiss. I am sorry----
        Mr. Deutch. Turn up the mic--yeah.
        Mr. Weiss. I am sorry to say it is virtually none, and that
    is part of the problem. We spend millions of dollars ensuring
    our properties are code-compliant and compliant with the ADA,
    and we have millions of dollars invested, and then we have
    attorneys essentially that come to us with their hand out, not
    knowing--with vague claims of noncompliance.
        They do not have specifics, and they never bothered to
    follow up as long as you have paid to settle the suit. As a
    follow-up, I guess I would just mention, both in your district,
    Mr. Deutch, this has become--this is not just the ICSC issue.
    There are press reports. There was one, in fact, this week of a
    serial plaintiff filing a thousand lawsuits.
        In response to Mr. Cohen's reference to lawsuits in
    California, California has actually passed two pieces of
    legislation to actually try to curb the abuse of these lawyers.
    Even with the damages provision that he thinks will actually
    help, there are abuses going on, and so California has passed
    legislation as well, to try to limit the abuses that are
    occurring there.
        Mr. Deutch. Mr. Buckland, is there not a difference between
    a business owner who refuses to include a required number of
    handicapped spaces, or who refuses to make the restrooms
    accessible, and a business owner who runs a business who has
    followed all of the technical assistance, as best as he or she
    could, and the grab bar is two inches too high, or the paper
    towel holder is a couple of inches off, or the line on the
    handicapped parking space that is there is drawn slightly
    crooked? There is a difference between them, is there not, and
    should we not incentivize?
        Do we not want the people and the bad actors to actually
    have to do what is necessary and lawsuits absolutely are
    required to get them to do it? But should we not require, or
    give an opportunity to the small business owner who used all
    good faith to comply with the law the opportunity to pick
    something when it might take 5 minutes to fix, instead of
    making them pay $10,000 or $12,000 when a lawsuit is filed?
        Mr. Buckland. Mr. Chairman, Mr. Deutch, with all due
    respect, if the only issue is the grab bar is two inches off,
    the business fixes that. Unless you are in a State with
    damages, there is no money paid out.
        Mr. Deutch. Well----
        Mr. Buckland. You only collect----
        Mr. Deutch. Excuse me, 1 second. But, no, I just want to
    correct that, and maybe I misunderstand, but the stories I have
    heard from the businesses in my district where, in South
    Florida, where 1 in 5 of these cases are filed, the story I
    heard from the guy who runs the bagel shop that I stopped in in
    the morning who just shared another one of these stories with
    me.
        He got hit with a lawsuit for one of these very minor
    mistakes. He has used all good faith to try to comply, and you
    are right. He is going to raise it by those couple of inches,
    and it is going to cost him $10,000 in plaintiff's legal fees,
    which is a cost that he never should have had to incur.
        Mr. Buckland. Well, I am sorry. Unless he has like somehow
    fought against the original complaint, why would there be
    attorneys' fees?
        Mr. Deutch. Mr. Royce, can you answer that question?
        Mr. Royce. The answer is because the suit is filed before
    the business owner even knows what the issue is. So to get rid
    of that lawsuit, you need to--you end up settling it.
        Mr. Deutch. And all I am trying--I think the Chairman
    understands this, and the Ranking Member of the Committee
    understands this. There is no one on this Committee who fights
    harder to keep the courtroom doors open for people who deserve
    justice in this country than I do.
        Mr. King. Believe me, he is telling the truth.
        Mr. Deutch. But in this situation all I think we are
    looking for is the opportunity for someone, for a small-
    business owner, to be able to--who has exercised all good faith
    and has only tried to do the right thing, to be able to
    continue to do the right thing without being forced to pay an
    extravagant amount of money; give him the opportunity to fix it
    and they will. I really appreciate the panel for being here. I
    think it is a really important discussion. Mr. Chairman, I
    yield back.
        Mr. Franks. And I thank the gentleman, and this concludes
    today's hearing and, without objection, all Members will have 5
    legislative days to submit additional written questions for the
    witnesses, for additional materials for the record. And I want
    to thank the witnesses and thank the Members and thank the
    audience for being here, and this hearing is adjourned.
        [Whereupon, at 10:30 a.m., the Subcommittee adjourned
    subject to the call of the Chair.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

         Supplemental material submitted by the Honorable Ken Calvert,
           a Representative in Congress from the State of California
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