[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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                       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.*
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    *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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