SPEAKERS CONTENTS INSERTS
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66–728
2000
ADA NOTIFICATION ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
MAY 18, 2000
Serial No. 136
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
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SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
May 18, 2000
TEXT OF BILL
H.R. 3590
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OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Batelaan, Donna M., Lake Worth, FL
Bell, Christopher G., attorney, Minneapolis, MN
Davis, Terri L., Rancho Santa Fe, CA
Eastwood, Clint
Fields, Jr., Joe, attorney, West Palm Beach, Florida
Fields, Tammy K., assistant county attorney, Palm Beach County, Florida
Foley, Hon. Mark, a Representative in Congress From the State of Florida
Glozier, Kyle, New Freeport, PA
Griffin, Christine, executive director, Disability Law Center, Inc., Boston, MA
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Levy, Andrew, attorney, Baltimore, MD
Rattner, Steven, College Park, MD
Shotz, Rick A., ADA Consulting Associates, Ft. Lauderdale, FL
Shaw, Clay, a Representative in Congress From the State of Florida
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Batelaan, Donna M., Lake Worth, FL: Prepared statement
Bell, Christopher G., attorney, Minneapolis, MN: Prepared statement
Brady, Jr. Anthony J.: Prepared statement
Davis, Terri L., Rancho Santa Fe, CA: Prepared statement
Fields, Jr., Joe, attorney, West Palm Beach, Florida: Prepared statement
Fields, Tammy K., assistant county attorney, Palm Beach County, FL: Prepared statement
Foley, Hon. Mark, a Representative in Congress From the State of Florida: Prepared statement
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Glozier, Kyle, New Freeport, PA: Prepared statement
Griffin, Christine, executive director, Disability Law Center, Inc., Boston, MA: Prepared statement
Levy, Andrew, attorney, Baltimore, MD: Prepared statement
Rattner, Steven, College Park, MD: Prepared statement
Shotz, Rick A., ADA Consulting Associates, Ft. Lauderdale, FL: Prepared statement
Waters, Hon. Maxine, a Representative in Congress From the State of California: Prepared statement
APPENDIX
Material submitted for the record
ADA NOTIFICATION ACT
THURSDAY, MAY 18, 2000
House of Representatives,
Subcommittee on the Constitution,
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Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Asa Hutchinson, Bob Goodlatte, Bob Barr, William L. Jenkins, Melvin L. Watt, Maxine Waters, Barney Frank, John Conyers, Jr., and Jerrold Nadler.
Also present: Representative Randy Cunningham.
Staff present: Cathleen Cleaver, chief counsel; Bradley S. Clanton, counsel; Jonathan A. Vogel, counsel; Paul B. Taylor, counsel; Susana Gutierrez, clerk; Sharee Freeman, counsel, Committee on the Judiciary; Anthony Foxx, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. There is widespread agreement that the Americans with Disabilities Act furthers the admirable goal of providing for an accessible environment for the disabled and that since its passage a decade ago the ADA has done much to make public accommodations more accessible to everyone.
The subcommittee is conducting this hearing today because of concerns that the progress brought about by the ADA is being threatened by a growing number of lawyers who are generating large sums in legal fees for pointing out often simple fixes that would bring properties into compliance with the ADA.
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The lure of large attorney's fees is so great that attorneys may even settle cases for attractive sums for themselves by agreeing to terms by which a property would not even be fully accessible under the requirements of the ADA.
This sort of litigation abuse stems from the simple fact that the ADA does not contain a simple notice provision. This gap in the law now poses a danger that attorneys will continue to exploit it and needlessly foment ill will between the disabled community and small property owners who would in good faith bring properties into compliance with the ADA if only they were alerted to the law's specific requirements.
H.R. 3590, the bill we consider today, represents an attempt to ensure that businesses will not only be put on notice of their abrogations under the ADA, but that they will also have the funds available to remedy any violations of the ADA and keep their businesses running for both the disabled and the nondisabled.
[The bill, H.R. 3590, follows:]
106TH CONGRESS
2D SESSION
H. R. 3590
To amend title III of the Americans with Disabilities Act of 1990 to require, as a precondition to commencing a civil action with respect to a place of public accommodation or a commercial facility, that an opportunity be provided to correct alleged violations.
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IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 8, 2000
Mr. FOLEY (for himself and Mr. SHAW) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title III of the Americans with Disabilities Act of 1990 to require, as a precondition to commencing a civil action with respect to a place of public accommodation or a commercial facility, that an opportunity be provided to correct alleged violations.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''ADA Notification Act''.
SEC. 2. AMERICANS WITH DISABILITIES ACT OF 1990; AMENDMENT TO PROVIDE OPPORTUNITY TO CORRECT ALLEGED VIOLATIONS AS PRECONDITION TO CIVIL ACTIONS REGARDING PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES.
Section 308(a)(1) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12188(a)(1)) is amended—
(1) by striking ''(1) AVAILABILITY'' and all that follows through ''The remedies and procedures set forth'' and inserting the following:
''(1) AVAILABILITY OF REMEDIES AND PROCEDURES.—
''(A) IN GENERAL.—Subject to subparagraphs (B) and (C), the remedies and procedures set forth'';
(2) in subparagraph (A) (as designated by paragraph (1) of this section), by striking the second sentence; and
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(3) by adding at the end the following subparagraphs:
''(B) OPPORTUNITY FOR CORRECTION OF ALLEGED VIOLATION.—A court does not have jurisdiction in a civil action filed under subparagraph (A) with the court unless—
''(i) before filing the complaint, the plaintiff provided to the defendant notice of the alleged violation, and the notice was provided by registered mail or in person;
''(ii) the notice identified the specific facts that constitute the alleged violation, including identification of the location at which the violation occurred and the date on which the violation occurred;
''(iii) 90 or more days has elapsed after the date on which the notice was so provided;
''(iv) the notice informed the defendant that the civil action could not be commenced until the expiration of such 90-day period; and
''(v) the complaint states that, as of the date on which the complaint is filed, the defendant has not corrected the alleged violation.
''(C) CERTAIN CONSEQUENCES OF FAILURE TO PROVIDE OPPORTUNITY FOR CORRECTION.—With respect to a civil action that does not meet the criteria under subparagraph (B) to provide jurisdiction to the court involved, the following applies:
''(i) The court shall impose an appropriate sanction upon the attorneys involved (and notwithstanding the lack of jurisdiction to proceed with the action, the court has jurisdiction to impose and enforce the sanction).
''(ii) If the criteria are subsequently met and the civil action proceeds, the court may not under section 505 allow the plaintiff any attorneys' fees (including litigation expenses) or costs.''.
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Mr. CANADY. Giving advance notice of potential ADA violations in advance of bringing a lawsuit is simply good practice among lawyers and no doubt the majority of lawyers give such advance notice. Unfortunately, however, it appears that some lawyers will not conduct themselves in accordance with good practice unless good practice is codified in the law. That is what the ADA Notification Act would do.
Of course, some businesses may continue to ignore or refuse to fulfill their duties under the ADA to make their properties accessible to the disabled. Under H.R. 3590, such businesses will remain subject to suit under all the provisions of the ADA, as they have been since it was enacted. However, it is hard to see why those business owners who readily meet their obligations under the ADA which put on notice of those obligations should have to hand over large amounts of money to attorneys.
I want to thank my colleagues from Florida, Mr. Foley and Mr. Shaw, for their leadership on this legislation. I am very grateful to both of you, Mr. Foley and Mr. Shaw, for bringing this important issue to the attention of the Constitution Subcommittee and the Judiciary Committee. I look forward to hearing your testimony as well as the testimony of all the other witnesses who will appear at today's hearing.
Now, I would now like to recognize Mr. Watt for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman. And I thank the Chairman for convening a hearing about this very difficult issue. I have been reading the materials for the last few days, and find that it is a very, very difficult issue to deal with. And I would like to thank Mr. Eastwood for taking time out of his schedule to be here and give us his perspective on this and all of the other witnesses who will be appearing today to express their positions and enlighten us so that we can make better public policy on this issue.
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I tried to put myself in the position of the respective parties, as I always do when I am confronted with these issues. The first thing I said to myself is that in the 22 years that I practiced law, could I ever recall filing a lawsuit without giving the opposing side notice and an opportunity to correct whatever it was that I was contemplating filing the lawsuit? And in all honesty, I could not think of a case in which I had not given notice to the other side and given them an opportunity to correct the grievance.
But that would be kind of a simple answer to this question and I was not necessarily content to stop with a simple answer. I wondered aloud to myself what impact would it have on voluntary compliance with the law if there were a notice requirement in the statute, and the question would be whether the notice requirement would encourage people who knew the law not to comply with the law and just sit and wait on the notice to be given before they took the step of going ahead and complying with the law.
I was not quite sure where I came down on that issue. I asked myself if I had been traveling in Alabama or Mississippi and gone to a hotel or restaurant and been turned away because I was black, would there be, should there be, a requirement that I give somebody 90 days' or 60 days' notice to comply with the law before I could vindicate my right or before I could have a reasonable expectation of gaining access to that facility that is covered by the law. Perhaps I would not be so offended that 90 days would be an undue burden to me.
But perhaps that is not a valid analogy with the Americans with Disabilities Act. All of those are questions that I came away at the end of my thought process kind of in a quandary about, and of course, that is the reason we have these kinds of hearings. One side of me says simplistically, hey, let's talk about giving some kind of notice and is that not the fair thing to do? But there are some sides of me that have questions about what implications that has in other areas and what implication itself has—it would have for voluntary compliance.
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So I am looking forward to hearing the testimony and I will certainly try to keep an open mind about these issues. All of them. Because I think that is what we are called upon to do when we are faced with difficult public policy issues of this kind. I thank all of you for being here and caring about this issue and I thank all of the witnesses who will bring a perspective that will help us to answer some of these difficult questions and I thank the Chairman for convening the hearing. I yield back Mr. Chairman.
Mr. CANADY: Thank you, Mr. Watt. Are there other members wishing to make an opening statement? Well, if not, we will proceed with the witnesses on our first panel this morning.
On our first panel this morning we will first hear from Congressman Mark Foley, who is now serving his third term as the U.S. Representative from Florida's 16th Congressional District. He serves on the House Ways and Means Committee, and as a Member of the House leadership as a deputy majority whip. He is also chairman of the Travel and Tourism Caucus and chairman of the House Entertainment Industry Caucus.
Our second witness on this panel will be Congressman E. Clay Shaw, Jr. He was elected to represent Florida's 22nd Congressional District in 1980. Currently, Congressman Shaw serves on the Committee on Ways and Means as the chairman of the Social Security Subcommittee.
Our final witness on this panel will be Mr. Clint Eastwood, and Mr. Eastwood will be introduced by Congressman Foley.
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I now turn to Congressman Foley after reminding the witnesses that we would appreciate it if you would do your best to confine your remarks to 5 minutes. Without objection, your written statements will be made a permanent part of the hearing record. Mr. Foley.
Mr. FOLEY. Could I make the request that we submit the testimony for the record?
Mr. CANADY. Without objection.
STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. FOLEY. First let me thank Chairman Canady, Chairman Hyde, Mr. Hutchinson, and Mr. Watt particularly for your thoughtful comments because we are in a quandary as it relates to this important law. I thank you as well for the opportunity to hear testimony on H.R. 3590, which I introduced with my Florida colleague, Clay Shaw.
Mr. Chairman, the Americans with Disabilities Act is one of the most important pieces of civil rights legislation we have passed in recent years. It is a good law, with great intentions.
At the time it was signed into law, however, even President Bush acknowledged concerns about unintended consequences. Today, we are facing one of those unintended consequences. To put it simply, the ADA is being used by some attorneys to shake down thousands of businesses from Florida to California, and they are doing so at the response of people with disabilities.
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As you know, under title III of the ADA, disabled plaintiffs who file lawsuits to compel compliance with ADA access requirements are barred from receiving damage awards, but the attorneys who bring these lawsuits are not. They are allowed to collect attorney's fees. As a result, some attorneys apparently have figured out that the ADA can be a real cash cow for minimum work on their part.
In my own district in Florida, two lawyers formed an organization called Citizens Concerned About Disability Access whose membership includes the two lawyers and a neighbor and the neighbor's disabled child. They then filed a blizzard of lawsuits against dozens of businesses, each complaining that the disabled child was unable to gain access to the businesses, which incidentally included stores she apparently never attempted to enter nor likely would have, such as a liquor store and a pawnshop.
In all of the cases of which I am aware, the businesses readily agreed to fix access problems once they were made aware of them. But having done so, they then found themselves faced with thousands of dollars in attorney's fees reportedly owed by them to cover the lawyers's costs for preparing and filing the lawsuits; lawsuits that, of course, never went beyond the filing stage. There are variations on this theme but the result is the same. It is called legal extortion.
Mr. Chairman, no one disputes that ADA access violations exist. But most of these businesses had no idea they were violating the ADA and most did not need a lawsuit to force them to make simple corrections like adding parking signs or repainting old ones. A simple notice telling them they were out of compliance and vulnerable to a lawsuit would have probably done the trick.
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And that is all this bill does. It simply says that before filing a lawsuit against a business for ADA access violations, let the business know it is out of compliance and give them 90 days to clean up their act. If they do not, then by all means sue. But my guess is that most businesses, especially small ones, will respond to the notice rather than chance the lawsuit.
I know that there are many Americans with disabilities who have been increasingly frustrated at the lack of compliance with ADA access requirements. I know that. But having a bunch of rogue attorneys using the law to reap attorney's fees does no one but the lawyers any service. And at least in my community, local ADA advocates have become alarmed that these lawsuits are backfiring not only on the ADA but on sympathy for people with disabilities. I do not think it is unreasonable to require notice in advance of a lawsuit. We have a law, a very good law, that unfortunately most small businesses are not familiar with. They go to their local town or city halls for building permits or certificates of occupancy and they assume that once they have done what they are told, they are meeting all building code requirements that are there. The problem is they are not, because the ADA is enforced federally by the Justice Department and not locally. No one locally is telling them what they need to do because the ADA is not part of most local building codes.
I know, Mr. Chairman, that ignorance of the law is no defense. But we are talking about businesses that can barely afford clerks, much less lawyers, being expected to comply with very specific requirements of a Federal law that no one has made them aware of. Now, maybe that is a failure of Congress, or possibly a failure of the Justice Department, to educate people. But if that is the case, let's not blame the businesses.
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The ADA Notification Act does not take away anyone's right to sue under title III of the ADA. It just ensures that before costly litigation starts, the person committing the violation knows about the violations and has a chance to correct them.
The ADA was intended to ensure equal opportunities and access for people with disabilities; it was not intend as an equal opportunities employment act for lawyers. And I honestly think that if you know of violations and tell businesses about them, you may have far fewer lawsuits but a whole lot more compliance. And that, I think, is what all of us want here today.
I would like to add one thing, Mr. Chairman. Before introducing the ADA Notification Act, I wrote to Attorney General Janet Reno asking for help in clamping down on these rogue attorneys. The response I got from the Justice Department basically said, sorry, we have no authority to investigate attorneys who might be abusing the law and we are forwarding your request on to the Florida bar. It was only later that I learned that another colleague of mine had written the Department a year before and had been told something entirely different. He was told that the Justice Department was investigating these lawyers in conjunction with the FBI, an investigation that the Justice Department confirmed to one of my subcommittee staffers and was still open as of last week.
I think it is important to know exactly what the Justice Department is doing, both in terms of education and of normality. Referring these cases to State bars may not do very much since it is hard to prove the lawsuits are frivolous if violations do exist and it is almost impossible to prove intent. No attorney is going to say, yes, I am filing these lawsuits because I want to make a quick buck. They are going to tell you that they are filing to advocate for the disabled and because filing lawsuits is the recourse prescribed by the ADA. It becomes impossible to distinguish them from ADA legal advocates who are filing lawsuits for good causes and in good faith.
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Although I understand that the Justice Department declined to provide a witness today, I would hope it will shed light on these issues. I also want to stress, as a former chairman of Gulfstream, Goodwill Industries, and as a city commissioner, I care deeply about people like David and Donna Batelaan who are behind me, who are friends of many, many years and constituents. They started the business Access Mobility to give people like themselves a chance to have full employment, gain full access and share in the bounty of life that all of us may take for granted. They found themselves confronted by a lawsuit themselves. They will tell you their story.
But I think it is important to note that we did not come here, Mr. Eastwood, myself, or Mr. Shaw, to belittle the law or deny access. We celebrate the law here today. We think people like Senator Bob Dole, who is my personal friend and who I supported in his bid for Presidency, were very, very right in pushing passage of this great landmark legislation. But I think when you hear some of the stories of victims of the litigation, you will understand why it is so poignant.
Mr. Watt, I agree with your statement. A black person entering a restaurant and being denied access is reprehensible, but that is because the person is mean. Most everybody understands the impact of civil rights legislation, and I regret that still may occur in parts of America. Unfortunately, today what we are talking about with ADA is ignorance. We have done a poor job as a Federal Government in enforcing the law. In fact, in our own building, in Cannon, was just recently installed push pads to allow wheelchair accessibility. Ten years after the law was passed our own Federal Government is coming up to the standards.
So today is about making a clear differentiation between weakening a very important law and providing a level of common sense that we can then work together on. And hopefully through all of this the Justice Department will be more thorough in convincing local and State officials of the need of education of their building officials and that we should, as a local entity, States included, be making sure that we fund the necessary education for those officials so that they can carry out the mission of this law.
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Shame on us for not doing enough to fund it. Shame on us for not educating, and shame on us for still not having businesses in compliance. I do not excuse anyone who does not bring their business into compliance. But I think like normal in law, a notice would be helpful. I thank you, Mr. Chairman.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Foley follows:]
PREPARED STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Thank you, Mr. Chairman—and my thanks to all the Subcommittee members—for this opportunity to hear testimony on H.R. 3590, which I introduced with my Florida colleague, Clay Shaw, earlier this year.
Mr. Chairman, the Americans with Disabilities Act is one of the most important pieces of civil rights legislation we have passed in recent years. It is a good law, with great intentions.
At the time it was signed into law, however, even President Bush acknowledged concerns about unintended consequences. And today, we are facing one of those unintended consequences.
To put it simply, the ADA is being used by some attorneys to shake down thousands of businesses from Florida to California. And they're doing so at the expense of people with disabilities.
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As you know, under Title 111 of the ADA, disabled plaintiffs who file lawsuits to compel compliance with ADA access requirements are banned from receiving damage awards. But the attorneys who bring these lawsuits are not—they are allowed to collect ''attorneys'' fees.'' As a result, some attorneys apparently have figured out that the ADA can be a real cash cow for minimum work on their part.
In my own district in Florida, two lawyers formed an organization called Citizens Concerned about Disability Access, whose membership includes the two lawyers, a neighbor and the neighbor's disabled child. They then filed a blizzard of lawsuits against dozens of businesses, each complaining that the disabled child was unable to gain access to the businesses—which, incidently, included stores she apparently never attempted to enter nor likely would have, such as a liquor store and a pawn shop.
In all of the cases of which I'm aware, the businesses readily agreed to fix the access problems once they were made aware of them. But having done so, they then found themselves faced with thousands of dollars in attorneys fees reportedly owed by them to cover the lawyers' costs for preparing and filing the lawsuits—lawsuits that, of course, never went beyond the filing stage.
There are variations on this theme, but the end result is the same. I call it legal extortion.
Mr. Chairman, no one disputes that the ADA access violations exist. But most of these businesses had no idea they were violating the ADA. And most didn't need a lawsuit to force them to make simple corrections, like adding parking signs or repainting old ones. A simple notice telling them they were out of compliance and vulnerable to a lawsuit would have probably done the trick.
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And that's all this bill does. It simply says that, before filing a lawsuit against a business for ADA access violations, let the business know it's out of compliance and give them 90 days to clean up their act. If they don't, then by all means sue. But my guess is that most businesses, especially small ones, will respond to the notice rather than chance the lawsuit.
I know that there are many Americans with disabilities who have been become increasingly frustrated at the lack of compliance with the ADA access requirements. I know that. But having a bunch of rogue attorneys using their law to reap attorneys fees does no one but the lawyers any service. And at least in my community, local ADA advocates have become alarmed that these lawsuits are backfiring not only on the ADA but on sympathy for people with disabilities.
I do not think it is unreasonable to require notice in advance of a lawsuit. We have a law—a very good law—that, unfortunately, most small businesses are not familiar with. They go to their local town or city halls for building permits or certificates of occupancy, and they assume that, once they've done what they are told, they are meeting all the building code requirements out there.
The problem is, they're not, because the ADA is enforced federally by the Justice Department, not locally. And no one locally is telling them what they need to do because the ADA is not part of most local building codes.
I know that ignorance of the law is no defense, Mr. Chairman. But we are talking about businesses that can barely afford clerks, much less lawyers, being expected to comply with very specific requirements of a federal law that no one has made them aware of. Now maybe that's a failure of Congress, or a failure of the Justice Department to educate people. But if that's the case, let's not blame the businesses.
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The ADA Notification Act does not take away anyone's right to sue under Title 111 of the ADA. It just ensures that, before costly litigation starts, the person with the violations knows about the violations and has a chance to correct them.
The ADA was intended to ensure equal opportunities and access for Americans with disabilities. It was not intended as an equal opportunities employment act for lawyers. And I honestly think that if you know of violations and tell businesses about them, you may have far fewer lawsuits but a whole lot more compliance. And that, I think, is what all of us want.
I would like to add one last thing, Mr. Chairman. Before introducing the ADA Notification Act, I wrote to Attorney General Janet Reno asking for her help in clamping down on these rogue attorneys. The response I got from the Justice Department basically said, sorry, we have no authority to investigate attorneys who might be abusing the law and we're forwarding your request on to the Florida Bar. It was only later that I learned that another colleague of mine had written the Department a year before me and had been told something entirely different. He was told that Justice was investigating these attorneys in conjunction with the FBI—an investigation that Justice confirmed to one of your subcommittee staffers was still ''open'' as of last week.
I think it's important to know exactly what the Justice Department is doing—both in terms of education and of enforcement. Referring these cases to state bars may not do very much, since it's hard to prove the lawsuits are frivolous if violations do exist and it's almost impossible to prove intent. No attorney is going to say, yes, I'm filing these lawsuits because I want to make a quick buck. They are going to tell you they are filing to advocate for the disabled and because filing lawsuits is the recourse prescribed by the ADA. It becomes impossible to distinguish them from ADA legal advocates who are filing lawsuits for good cause and in good faith.
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Although I understand that the Justice Department declined to provide a witness today, I would hope it will shed light on these issues.
Thank you.
Mr. CANADY. Mr. Shaw.
STATEMENT OF HON. CLAY SHAW, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. SHAW. Mr. Chairman, members of the committee, I ask unanimous consent that my written statement be entered into the record.
Mr. CANADY. Without objection.
Mr. SHAW. I went through the same mental process, Mr. Watt, that you did, looking back on the time that I practiced law, and the question of did I ever file a suit without giving notice. And I think that most lawyers would say the only reason they would ever do such a thing is if their client will be unduly prejudiced because of some evasive action that somebody might take by giving them some notice.
The bill that is before us today would make a very minor amendment to the Americans with Disabilities Act. I wanted that bill, and I vigorously supported it, and I still support it; even though the flaws that we are finding in the bill itself. If it were before us today on an up-or-down vote, I would certainly support it again because it is a good bill and it has opened up many opportunities to people that do have disabilities.
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Mr. Foley made reference to the fact that many of the Federal buildings do not comply. They do not even comply today. This room does not comply and it may surprise members of the committee who deal in such things with jurisdiction over this act, and are ignorant of some of the violations within this very building and within this very room. You passed some of them walking in today. The question is should some notice be given, not before the enforcement, but I believe the question is before the awarding of attorney's fees.
It may be this committee might want to take this bill and say, look, perhaps what we should do is amend it and change it around so that in order to get attorney's fees you have to give notice but in no way prejudice someone from filing a suit, if that is what it takes to get somebody in compliance without notice. If you are in violation, you are in violation and that is certainly a matter of fact. But I think the better way is to require some type of notice before the filing of suit. Perhaps 90 days is too much. Perhaps 30 days.
The question of prejudicial treatment to somebody in a business anywhere in this country, should that require notice? Of course not, because it does not require construction, it does not require any planning. It just requires an attitude change and it is clear violation of the law when somebody is turned away for that reason.
So the parallel is there, but there is a very distinct difference in the way that the law is handled.
Obviously, you do not give somebody 30, 60, 90 days' notice that they have to open their business to all races, regardless of any personal prejudice that they may have. But the bill before us, I believe, actually strengthens the Americans with Disabilities Act. The end result is to get American business, get American buildings in compliance. That is the purpose of the act. The act was not to impose attorney's fees.
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In our south Florida area, the area that Mr. Foley and I represent, some 600 lawsuits have been filed, and I believe almost all of them by the same law firm, simply by going around and finding things not in compliance and filing suit on behalf of a young girl that happens to be the neighbor of one of the lawyers involved. And as Mr. Foley pointed out, even one of the complaints was filed against a liquor store and this was a minor that filed the complaint, that they do not have access to the liquor store. Purely absurd. Another action was filed against a pool supply company. This young girl did not have a swimming pool.
These are some of the examples that shows that there is a clear—people are clearly taking advantage of a statute that was well meaning and was filed by this Congress and was passed by this Congress and signed into law by President Bush. It is a good bill. It needs to be protected.
But whether you support this bill or something else, we are finding that this is a growing industry out there among lawyers that just really have too much time on their hands. And the question is, can you gain compliance just simply by giving notice and getting the job done? Is 90 days too long? Perhaps it is. Perhaps that can be shortened. But the end result and what we are trying to accomplish here is to bring people into compliance with the law, not to enrich attorneys that have developed an industry of filing this type of suit.
Right now, it is big in south Florida. It is over on the West Coast, too. I believe Mr. Eastwood will be testifying to that. It is going to be big in each congressional district in this country as soon as the word is out that lawyers can make a lot of money by just filing the suit. And they do it; just go to the Xerox machine and put in somebody else's name and file it in the courts and you are entitled to attorney's fees.
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That is not what we are about, that is not the intention of the law. I think the law will be stronger by making it easier for people to come into compliance, and let's get them into compliance and get on with our business. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Shaw.
Mr. Foley.
Mr. FOLEY. I did want to call your attention to an article from the Palm Beach Post, which I will submit with my testimony, entitled ''Advocacy for Profit'' which basically says, ''By filing lawsuits first and talking later, two Broward lawyers are trying to exploit laws that protect the disabled.'' and it says, ''The Americans with Disabilities Act was supposed to give the handicapped access to jobs and public places. Instead, at least in one place, it has created access to lawyers trying to make a bundle.'' I call your attention to that.
Mr. Eastwood came here today to obviously be an advocate for common sense. Obviously, his celebrity is bringing many cameras into this room. I am delighted that he is here because I think he can tell his own story better than I.
But the one thing for those who question our motives, I hope the best thing that comes out of this hearing room today is that through these cameras and through these lenses we will report to America a concern of many who are behind me today that access is still limited and that opportunities still do not fully give them access to all that we take for granted. So if anything, whether my bill goes anywhere from here, I think one thing has been accomplished. Businesses are looking at their situation, checking the facts, having consultants come in, and are going to be making the necessary improvements based on just the testimony today.
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And it is my pleasure to introduce Mr. Clint Eastwood from California.
Mr. CANADY. Mr. Eastwood, please proceed.
STATEMENT OF CLINT EASTWOOD
Mr. EASTWOOD. Thank you very much Mr. Chairman. Out on the West Coast, we are having a similar problem. I have experienced it firsthand. We have the same few lawyers that are perpetrating this case, and in my opinion they are perverting the law by going around and filing these broadside, sand-bagging type suits where they hit you broadside from nowhere, with absolutely no warning.
I was hit by one in an old hotel I was trying to restore that dates back to the 1800's, and it was just on an allegation that somebody was there, and a year earlier they had been denied access. They waited a whole year to file this suit. Now, they claimed that some employee told them that we did not have handicapped bathrooms. Well, the truth is we did have handicapped bathrooms, but some employee, this mythical employee they couldn't identify, and none of the employees could identify the plaintiff.
So it just went on and on and on. And once they file a suit on you, they keep adding everything. Every time they come back they keep upping the ante, adding many more problems to be solved which they can collect fees on. And it is really not very fair. The same lawyer-plaintiff combination has done Heritage House in Medicine and they have done other places. And they have written me before on another restaurant that I was a one-sixth owner of, but nothing came of that because it was in compliance.
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I am here just to help out. I have got a lawsuit going. It comes up in the fall. We will go ahead and take it before a jury and find out what they think about this whole thing. But in the meantime, I meet the Batelaans and hear all these horror stories across the country, and you can't believe in America that these lawyers that cloak themselves under the guise that they are doing a favor for the disabled when they really are doing a disservice.
Who in America gives these lawyers the right to be the self-appointed vigilantes to enforce the law? Why can we not just have some decency and give persons notice that there is some problem going on? That is all I am here for.
I think what happens is these lawyers, they come along and they end up driving off in a big Mercedes, and the disabled person ends up riding off in a wheelchair, and that is because they have collected all the money. I personally am ignorant of certain aspects of the law, but I do not understand why the disabled are denied damages and the lawyers get fees. If they are going to do anything, I would rather see the damages go to the disabled and then have at least a warning thing.
And then only legitimate lawsuits, legitimate concern lawsuits would be out there, and not all of these frivolous suits that just clutter up our courts and make it tough on everyone.
But the very end of the picture is just not very good right now, and the longer the delays go on this type of thing, hundreds of small businesses are going to be put out of business, and people like the Batelaans will get penalized under the guise that some lawyer is doing a great service for the disabled. Well, they own this shop and it is by, and it is for, and the customers are disabled. How did they get such a great deal out of it? I fail to see that.
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I realize I am a bit naive on this, but with the same people perpetrating this over and over again, professional litigants, it is just not fair, and I am here just as a common person speaking of fairness.
And I think Mr. Foley and Mr. Shaw have pretty well summed up my opinion, and you yourself, Mr. Chairman, made a very good case for the necessity of this amendment.
Mr. CANADY. Thank you, Mr. Eastwood. I want to thank all the members of this panel for your testimony. Ordinarily, we do not ask questions of panels with Members on it. Are there any members who feel constrained to ask a question? Mr. Nadler is recognized for 5 minutes.
Mr. NADLER. Mr. Eastwood, one question I have is according to the briefing papers I have just been scanning, the court case that you are involved in was decided entirely upon California compliance law and that your restaurant was not found in violation of the Federal ADA Act. And if the bill that you are supporting had been in effect at the time, it would not have affected your court case in any way; is that correct?
Mr. EASTWOOD. That is correct. Naturally, if this bill goes through, it probably is not retroactive. It probably has no effect.
Mr. NADLER. But even if it had been retroactive, it wouldn't affect your case because your case was decided on State law.
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Mr. EASTWOOD. I think it is cited under both State and Federal. I think they are citing damages for the plaintiff on the California and they are citing Federal for access.
Mr. NADLER. Thank you.
Mr. CANADY. Again, I want to thank all of you for taking the time to be with us today. Again, we appreciate your bringing this important issue to the attention of the subcommittee. And the subcommittee is going to continue with the hearing and considering all aspects of this important matter. Thank you very much.
Mr. SHAW. Thank you, Mr. Chairman. As a former member of this committee, it is an honor to be back.
Mr. CANADY. Thank you, Mr. Eastwood.
Mr. EASTWOOD. Thank you.
Mr. CANADY. I would like to ask that the members of the second panel prepare to come forward and take your seats as our staff is arranging the chairs and the places for those who will be testifying.
As the witnesses are coming forward, we are expecting at a quarter to 11 a series of votes on the House floor, which will unfortunately interrupt the hearing because the Members will have to go to the House floor to cast their votes. I apologize for that, but that is something over which we have no control. It would be our intention, however, after that series of votes has concluded on the floor of the House, to return and immediately resume the hearing. I ask that all the witnesses remain available so that we can resume as soon as the Members return from the series of votes on the House floor that will occur.
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If the witnesses will come forward here, I will now proceed with the introduction of the witnesses on this panel. Our first witness on this second panel of today's hearing is Donna Batelaan, who is accompanied by her husband David Batelaan, who joins her here at the table and also for the purpose of answering questions. The Batelaans are owners of Action Mobility Products and Services in Lake Worth, Florida.
Action Mobility Products and Services sells and services mobility products for people with physical disabilities, including wheelchair van lifting equipment and driving aids, power and manual wheelchairs and accessories. The Batelaans have been involved in developing programs designed to mainstream high school students with disabilities into appropriate vocational programs.
Following the Batelaans, we will hear from Dr. Steven Rattner. Mr. Rattner is the president of a practice in general dentistry in college park Maryland.
Next I want to ask our colleague from California, Congressman Cunningham, to introduce the third witness on this panel, Mrs. Terri L. Davis of Rancho Santa Fe, California. I yield to Congressman Cunningham for that purpose.
Mr. CUNNINGHAM. Thank you, Mr. Chairman. Thank you for the opportunity to introduce Mrs. Terri Davis. I spent most of my adult life as a fighter pilot and I am going to cut to the quick: Make my day. Make the day of each of the people that are represented in here better, the individuals with disabilities.
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Ms. Terri Davis is going to tell you her story about how she became another victim of a slick, mean-spirited liberal trial lawyer who is exploiting the Americans with Disabilities Act.
Her story is very compelling, not just for the facts of her case, but for who she is. Ms. Davis, too modest herself, is a member of the board of the Beach and Country Guild, an organization that provided more than $90,000 to the United Cerebral Palsy Center in San Diego. Her personal efforts accounted for more than $40,000 of that money. She is a Rotarian who, through the Christmas in April program, adopted a local San Diego family, a handicapped single father with two children, that cleaned and painted and landscaped and outfitted their house. She is a member of the board of the Family Recovery Center Auxiliary, a center for women and their children recovering from alcohol and drug abuse. She works with the Helen Woodward Animal Center and the International Council of Shopping Centers.
Now Terri Davis will tell you her story, and if a person like this can be abused in a system that is meant to help people by liberal trial lawyers, then maybe we can come together and fight for those people with individual disabilities and chastise the very people that abuse it. And I am very, very proud to introduce Terri.
Mr. CANADY. Thank you, Mr. Cunningham. Following Ms. Davis we will hear from Kyle Glozier, an eighth grade student in New Freeport, Pennsylvania. Kyle is an experienced spokesperson for people with disabilities. He has spoken at many conferences and rallies since he was 8 years old. We are particularly pleased to have Mr. Glozier here us today.
Mr. GLOZIER. Thank you.
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Mr. CANADY. Our fifth witness on the second panel is Christine Griffin, who is the executive director of the Disability Law Center in Boston, Massachusetts. Ms. Griffin is a veteran of the United States Army and a former special assistant to Vice Chairman Igasaki of the Equal Employment Opportunity Commission which has responsibility for enforcing the employment provisions of the ADA. She is also an active member of the Paralyzed Veterans of America.
I want to thank all of you for being here with us today. I would ask that you do your best to summarize your testimony within 5 minutes. It will be indicated by the light when it turns red.
Without objection, your full written statements will be made a part of the permanent written record of this hearing.
I will now recognize Donna Batelaan.
Mr. WATT. Mr. Chairman, before we start, I see that there are a number of chairs that are vacant in the audience and I am told that there are still a number of people, particularly people in wheelchairs, that are in the corridor. And I am wondering if we might be able to kind of tighten up the room and get other people who are out in the corridor into the room, or at least fill up the chairs that are vacant.
Mr. CANADY. Thank you, Mr. Watt. I would ask that the staff consult with the Capitol Police officers to ensure that we are giving access to the room to as many people as can safely be accommodated in the room, and if we need to take a moment's break while people are coming in.
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Mr. FRANK. Mr. Chairman, could I ask you to repeat your previous warning that only Members are allowed to bark in the hearing room?
Mr. CANADY. I would like to prohibit all barking, actually. As I warned you, the bells are ringing so we will have a rather lengthy series of votes, I apologize for that. But the subcommittee will stand in recess pending the conclusion of the votes on the House floor.
[Recess.]
Mr. CANADY. The subcommittee will be in order again. Our apologies for the delay. But we will now proceed with testimony from the members on the second panel, all of whom I have introduced and we will begin with Mrs. Batelaan.
STATEMENT OF DONNA M. BATELAAN, LAKE WORTH, FL
Mrs. BATELAAN. Good afternoon, ladies and gentlemen, Dave and I are here to speak for a law that we have advocated for all of our lives, and yet we broke that law. We are uniquely qualified to present because of our backgrounds. We have co-owned a mobility equipment business in south Florida for the last 20 years. Our parking lot and our building are totally wheelchair accessible. We employ two people who use wheelchairs and we ourselves use wheelchairs and all of our customers have mobility limitation.
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We had not painted the lines and posted a sign on the one handicapped spot that is required by ADA. An attorney from New Jersey, without notice, filed a suit against us. It cost us less than $100 to correct the infractions and $2,000 for attorney's fees. Later we were contacted by business owners who were sued by an attorney who went door to door at some strip malls in our area, filing over 30 suits.
Dave and I are intensely concerned about the results of the greed displayed by these suits being filed. We acknowledge ADA is not a perfect law, but ADA is the most fundamentally important law passed to date, granting Americans with disabilities their rights.
Without the ADA, we may not have been able to come here today to testify. There would have been no guarantee of an accessible hotel room, even with a prepaid and prior registration. There would be no guarantee that the airlines would perform the tasks necessary for us to board. There may not have been an affordable taxi which was an accessible van to transport us from the airport to our destination.
We traveled to Washington because it is critical to all people with disabilities that the intent of the ADA be preserved. It is the law among many that Congress has passed in the last 20 to 30 years that has given people with disabilities true rights, the same rights as nondisabled Americans.
The original intent of ADA was to provide access and opportunity to American life for all people with disabilities, not to give the legal profession an opportunity to make more money.
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Large businesses and organizations can be well schooled in the provisions of the ADA. These organizations have vast resources. They have legal departments, grounds departments, facilities departments, human resource departments, sales departments, et cetera.
We run a small business. Dave and I function at times as all of these departments, plus the bookkeeping department on occasion. The businesses that have been hit in our area are small mom-and-pop places, usually in old strip malls. These business owners are busy keeping their heads above water. Their intention is not to circumvent the law; they do not even know the law.
Should they comply? Yes, of course they should be made to comply. But suing them without notice is causing funds to go for legal settlement, not improved accessibility. Rather, remember small businesses are the backbone of the American economic system and potential places of employment for people with disabilities.
We feel that we need a more proactive approach. The Rehabilitation Act of 1973 created and funded our first Center for Independent Living in Berkeley, California. Currently, there is a national network of CILs. These centers could be charged with a mission of providing seminar-type meetings specifically geared for the small businessperson to assist them to understand ADA compliance and reasonable accommodations. CILs are typically run by people with disabilities, and part of their mission is to be trained in ADA compliance. Consultation site visits would be offered.
Dave and I grew up in a very inaccessible country. Schools did not welcome us. Buildings and programs were off limits to us. During the sixties and seventies, Dave and I were very active in lobbying for the passage of legislation that promised children and adults with disabilities the right to access federally funded programs. The arguments against the Rehabilitation Act of 1973, section 504 and other sections, and PL 94–142, were always based on dollar signs. Our rights are always too expensive. Twenty years later, 20 years after those laws were passed, we have not bankrupted America.
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The first generation to have benefited from the right of access to education and jobs are now taxpayers with disposable earned income. We feel that organizations representing and lobbying for small and large businesses would better serve their membership by joining hands and educating them, the businesses, to the economic advantages of reasonable accommodations.
Children with disabilities growing up today will have the education, the equipment they need, and now, most importantly, access to public places of business, places where they have the opportunity to earn a living, pay taxes, vote, and enjoy access to this great country of ours, all because of ADA. Do not let media hysteria, greedy practitioners, or poorly informed entrepreneurs' backlash weaken this great piece of legislation, the Americans with Disabilities Act. Thank you.
Mr. CANADY. Thank you.
[The prepared statement of Donna and David Batelaan follows:]
PREPARED STATEMENT OF DONNA M. BATELAAN, LAKE WORTH, FL
Chairman Canady and Members of the Subcommittee:
Dave and I are here to speak for a law that we have advocated for all of our lives, and, yet we broke the law. We are uniquely qualified to present because of our backgrounds. We have co-owned a mobility equipment business in Florida for the last 20 years. Our parking lot and building are totally wheelchair accessible. We employ two people who use wheelchairs, we ourselves are in wheelchairs and all of our customers have mobility limitations. We had not painted the lines and posted a sign on the one ''handicapped'' spot that is required by the ADA. An attorney from New Jersey, without notice, filed a suit against us. It cost us less than $100 to correct the infraction and $2000 for attorneys' fees. Later we were contacted by business owners who were sued by an attorney who went door to door at some strip malls in our area, filing about 30 suits.
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We are intensely concerned about the results of the greed displayed by these suits being filed. We acknowledge the ADA is not a perfect law. But, the ADA is the most fundamentally important law passed to date granting Americans with disabilities their rights.
Without the ADA, we may not have been able to come here today to testify. There would have been no guarantee of an accessible hotel room, even with prepaid registration. There would be no guarantee that the airlines would perform the necessary tasks of carrying our wheelchairs. There may not have been an affordable accessible van to transport us from the airport to our destination.
We traveled to Washington because it is critical to all people with disabilities that the intent of the ADA be preserved. It is the law among many that Congress has passed in the last twenty to thirty years that has given people with disabilities true rights, the same rights as non-disabled Americans.
The original intent of the ADA was to provide access and opportunity to American life for all people with disabilities, not to give the legal profession an opportunity to make more money.
Large businesses and organizations can be well schooled in the provisions of the ADA. These organizations have vast resources. They have legal departments, grounds departments, facilities departments, human resource departments, sales departments, etc.
We run a small business. Dave and I function as all of these departments plus the bookkeeping department sometimes. The businesses that have been hit in our area are small ''mom and pop'' places, usually in old strip malls. These business owners are busy keeping their heads above water. Their intent is not to circumvent the law; they don't know the law.
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Should they comply? Yes. Of course, they should be made to comply, but suing them without notice is causing funds to go for legal settlement, not improved accessibility. Remember small businesses are the backbone of the American economic system and potential places of employment for people with disabilities.
We need a more proactive approach.
The Rehabilitation Act of 1973 created and funded the first center for independent living in Berkeley, California. Currently, there is a national network of CIL's. These centers could be charged with a mission of providing ''seminar type'' meetings specifically for small businesses to assist them to understand ADA compliance and reasonable accommodations. CIL's are typically run by people with disabilities and part of their mission is to be trained in ADA compliance. Consultation site visits would be offered.
Dave and I grew up in a very inaccessible country. Schools didn't welcome us. Buildings and programs were off limits to us. During the 60's and 70's, Dave and I were extremely active in lobbying for the passage of legislation that promised children and adults with disabilities the right to access federally funded programs. The arguments against the Rehabilitation Act of 1973, Section 504 and Pub. Law 94–142 were always based on $ signs. Our rights were always too expensive. 20 years later, we have not bankrupted America!
The first generation to have benefited from the right of access to education and jobs are now taxpayers with disposable earned income. We feel that organizations representing and lobbying for small and large businesses would better serve their membership by joining hands and educating them to the economic advantages of reasonable accommodations.
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Children with disabilities, growing up today, will have the education and the equipment they need and now, most importantly, access to places of business, places where they have the opportunity to earn a living, pay taxes, vote and enjoy access to this great country of ours—all because of the ADA. Do not let the media hysteria, greedy practitioners, or poorly informed entrepreneurs' backlash weaken this great piece of legislation—The Americans with Disabilities Act.
Mr. CANADY. Mr. Rattner.
STATEMENT OF STEVEN RATTNER, COLLEGE PARK, MD
Mr. RATTNER. Good afternoon, Mr. Chairman and members of the committee. My name is Dr. Steven Rattner. Currently, I am a resident of Potomac, Maryland. I have been deaf since birth. Now I am the president of a dental practice in general dentistry that was started in 1986. Presently, I have nine employees and two other dentists working for me. My dental offices are located in College Park and Germantown, Maryland.
When I first opened the College Park office, the common area of the building where the dental office is located in the first floor of a condominium high-rise building, I needed to make several requests to the condominium association to make the common area and lobby accessible.
After several years, the board of the association finally approved my request and implemented the modifications with minimal cost. These modifications included making the public restroom and the sidewalk ramp accessible to people with disabilities. I am proud that the condominium and my business is complying with the Americans with Disabilities Act.
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I have patients with all types of disabilities who are able to come in and use my service, from wheelchair users to blind and deaf people.
Compliance with the ADA is not a difficult thing for my business. It is my responsibility to make my business accessible for everyone, and it is the disabled person's right to freely say who to do business with.
Adding the notice provision to this law is a threat to my future as a deaf person who may request an interpreter for continuing education in dentistry, as well as for other activities. For instance, a large reputable dental software company was offering a class on enhancement of the dental software that my office is currently using. The company denied my request for a sign language interpreter for the class that I signed up for. The company officers were unfamiliar with the ADA.
After much discussion, the officers realized that they were wrong and approved my request. However, it was too late to arrange for an interpreter for the course and I had to wait 6 months for the next session.
Now, if you pass this bill, I would have to wait 90 days to get the approval, then I would be behind with what is happening with the world.
After hearing that a proposal is being presented before your committee to the 90 days' notice provision attached to the ADA, I was concerned. Therefore, I decided to reschedule my appointments to be here to testify.
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I believe that this provision is not needed because the ADA is already 10 years old and functionally protecting people with disabilities. Adding this notice—ignorance of the law is no longer an acceptable excuse. In running my business I am required to comply with many laws and regulations; for example, disposal of biological waste, tax codes, license requirements. As a business owner in America, I am expected to operate my business in full compliance with these laws and regulations from the very first day I open my doors to the public.
These laws and regulations do not have a 90-day period to excuse a violator after a business owner has been caught. There is no reason why we should make an exception for the ADA.
Adding this notice provision would be like opening a can of worms, especially for deaf people. Thank you.
Mr. CANADY. Thank you very much, Mr. Rattner.
[The prepared statement of Mr. Rattner follows:]
PREPARED STATEMENT OF STEVEN RATTNER, COLLEGE PARK, MD
My name is Dr. Steven Rattner. Currently, a resident of Potomac, MD, I have been deaf since birth. I am President of a practice in General Dentistry that was started in 1986. Presently, I have nine employees and two dentists working for me. Dental offices are located in College Park and Germantown, Maryland.
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When I first opened the College Park office, the common area of the building where the dental office is located in the first floor of a condominium high rise building. I needed to make several requests to the condominium association to make the common area and lobby accessible.
After several years, the board of the association finally approved my request and implemented the modifications with minimal cost. These modifications included making he public restroom and the sidewalk ramp accessible to people with disabilities. I am proud that the condominium association is making efforts to comply with the American with Disabilities Act (ADA).
Adding the notice provision is a threat to my future as a deaf person who may request an interpreter for continuing education in dentistry as well as for other activities. For instance, a large reputable dental software company was offering a class on enhancement of the dental software that my office is currently using. The company denied my request for a sign language interpreter for the class that I signed up. The company officers were unfamiliar with the ADA.
After much discussion, the officers realized that they were wrong and approved my request. However, it was too late to arrange for an interpreter for the course and I had to wait six months for the next session.
After hearing that a proposal is being presented before your committee on the ''90 Days notice provision attached to the ADA'', I was concerned. Therefore, I decided to reschedule my appointments to be here to testify. I believe that this provision is not needed because the ADA is already ten years old and functionally protecting people with disabilities. Adding this notice provision would be like opening a can of worms. I understand that Clint Eastwood may be coming here to testify on the behalf of this provision. Surprisingly, he is known as an enforcer of the law in his famous movie, ''Dirty Harry'' and a former mayor of Carmel, California. Does he practice what he preaches?
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Mr. CANADY. Mrs. Davis.
STATEMENT OF TERRI L. DAVIS, RANCHO SANTA FE, CA
Ms. DAVIS. Mr. Chairman and members of the subcommittee, I manage a commercial office and retail center of 58,000 square feet, spread over 6.4 acres in Rancho Santa Fe, California, that was built in 1980 to 1981. The center has been professionally managed since completion by a well-qualified property management company which manages 61 properties of approximately 6.2 million square feet in three States.
Because of the incredible complexities in the new ADA regulations and the number of properties managed, the company hired independent consultants to inspect all the properties before the legislation was signed into law. Any necessary modifications to the properties were ordered and completed shortly thereafter to ensure that to the best of our knowledge, all of the properties were in compliance with the regulations.
Our company was served with a lawsuit on March 31, 1998. A woman had allegedly visited our center on February 12th, 1997, more than a year earlier, and was just then claiming discrimination due to her disabilities and our lack of an adequate number of parking places. She sought $2,000 in damages and $4,500 in attorney's fees. In a settlement conference with this plaintiff, I was told that she was damaged because we did not have an adequate number of parking spaces for the disabled as compared to regular spaces. We were supposed to have seven, we only had six. She would not state that she could not park, but only that we did not have enough handicapped spaces.
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She further had difficulty remembering why she even visited our center. I asked her why she did not call me or send me notice of any kind, and she said that she never does that. She told me that she filed the lawsuit against my center because it ruined her day and it had been such a beautiful day.
I asked her how many times she has been involved in cases like this one and her response, after very long consideration, was, well, Terri, you know, you go places every day. She never did answer the question, but in researching the situation, however, I found that in fact she had filed approximately 48 similar lawsuits from March 1997 to 1998. She agreed to reduce her demand to $1,250 and her attorney reduced his fees to $3,750.
There were a couple of issues that I had some concerns with. The damages versus attorney's fees seemed backwards to me. This complaint was completely boilerplate. Also she wished to keep the whole case confidential, which I absolutely would not agree to. It cost our center $7,000 in legal expenses, $1,250 to the plaintiff and approximately $1,200 in modifications to my center.
Obviously, the lawyers were the big winners there. The woman who brought this suit against me told me several times during our meeting that I was taking this much too personally. I was. At the time I was sued, I was a board member of the Beach and Country Guild, a local women's group that raises money for United Cerebral Palsy in San Diego. I was cochair of that year's event in October. We raised $105,000 for people with cerebral palsy and other disabilities. This was accomplished by an untold number of evening and weekend hours and an unbelievable demand on my time.
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I admire the ADA and its efforts to protect the rights of the disabled. Unfortunately, there are avenues within some State laws that allow individuals to twist the intent of the Federal legislation for their own private benefit. I have included a letter from Maureen McCloskey, the National Advocacy Director of the Paralyzed Veterans of America, who agrees.
Federal legislation provides an individual with the ability to force injunctive relief for a violation, but that individual may not take monetary damages. It is for this reason that plaintiffs add claims under State laws. The actions, however, are filed in Federal court and cite Federal violations as well as State claims in order to get around the notice provision that would otherwise be required in a State case. The claims are vague and extremely difficult to understand, which only force more attorney's fees on the defendant's side just to understand the specifics of the complaints.
I also had absolutely no luck with my county building department to understand what was wrong. I had no idea that we were not in compliance with the ADA and I had no problem making the corrections. We would have been happy to do that long before we were the target of a lawsuit. In fact, the corrections were made before the settlement conference even occurred.
I do not believe that I am alone here. If I had been provided with a notice, obviously the fix would have been easy and inexpensive. Unfortunately, the lawyers saw an opportunity to make money and they took it. So many of these small cases could be kept out of court simply by providing notice.
I am also providing you with a memo prepared by Jim McNeill, an attorney with McKenna & Cuneo in San Diego, which fully outlines the dilemma. If we can change State laws to reflect the Federal intent by adding a notice requirement, much of the money that goes into the pockets of lawyers could go directly toward making corrections mandated by the ADA. The so-called advocates for the rights of the disabled could spend their time and money educating the public about the difficulties of access and to look for and implement simple solutions, instead of using litigation to serve only themselves. Thank you.
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[The prepared statement of Ms. Davis follows:]
PREPARED STATEMENT OF TERRI L. DAVIS, RANCHO SANTA FE, CA
I manage a commercial office and retail center of 58,000 sq. ft. spread over 6.4 acres that was built between 1980 and 1981. Although the center was slated for a 50/50 mix of retail to office, over the years it has evolved into much more of an office complex, with roughly 21% retail. The retail portion includes a bank, deli, small convenience market, real estate office and health club. We have no boutiques or shops of any kind in our center. The remaining 79% is occupied by offices.
The center has been professionally managed since its completion by a well- qualified property management company which manages 61 properties of approximately 6.2 million sq. ft.in three states. Because of the incredible complexities in the new ADA regulations and the number of properties managed, the company hired independent consultants to inspect all properties before the ADA legislation was signed into law. Any necessary modifications to the properties were ordered and completed shortly thereafter to ensure that all of the properties were in compliance with the regulations.
I personally have been managing the center on a full time basis for approximately seven years, but have occupied an office in the center for over fourteen years. I know of no problems whatsoever with access to our center. In fact, we leased space to Canine Companions for Independence for a quite some time and our center was a training ground for many lucky recipients of a new companion dog.
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Our company was served with a lawsuit on March 31, 1998. A woman had allegedly visited our center on February 12, 1997, more than a year earlier, and was just then claiming discrimination due to her disabilities and our lack of an adequate number of parking spaces. She sought $2,000 in damages, and $4,500 in attorneys fees.
In a settlement conference with this plaintiff, I was told that she was damaged because we did not have an adequate number of parking spaces for the disabled as compared to regular spaces. We were supposed to have seven and we only had six. She would not state that she could not park, but only that we did not have enough handicapped spaces. She further had difficulty remembering why she had visited our center.
I asked her why she did not call me or send me notice of any kind. She said she never does that. She told me that she filed the lawsuit against the center because it ''ruined her day, and it had been such a beautiful day.'' Wouldn't we all like to collect from someone when we've had a bad day!
I asked her how many times she has been involved in cases like this one. Her response after very long consideration was ''Well, Terri, you know, you go places every day.'' She never did answer the question. In researching the situation, however, I found that she in fact had filed approximately 48 similar lawsuits from March 1997 to March 1998. She agreed to reduce her demand to $1250, and her attorney reduced his fees to $3750. There were several issues with regard to this case that I found odd:
1. Damages vs. attorney fees seemed backward. The complaint was boilerplate. The attorney indicated that he had ''consultant fees'' to pay. I never saw or was provided any work product from any consultant in this regard.
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2. The settlement agreement was prepared by her attorney. He included a confidentiality clause in the first draft. The issue of confidentiality had never been discussed during the settlement conference or at any other time and was rejected by us. It took two weeks for this woman to agree to leave that clause out.
This case cost our center roughly $7,000 in legal expenses and approximately $1200 in modifications to the center. We were fortunate that we could afford to make the corrections and pay the legal expenses. Others, we know, have not been so lucky.
The woman who brought this suit against us told me several times during our meeting that I was taking this much too personally. I was. At the time we were sued, I was a board member of the Beach and Country Guild, a local woman's group that raises money for United Cerebral Palsy in San Diego. I was co-chair of the year's annual event which was held in October. We raised $105,000 for CP. This was accomplished by an untold number of evening and weekend hours, and an unbelievable demand on my time. I did not ask my employer for a contribution that year. Our contribution which would have gone toward programs and services for the disabled, went into the pockets of attorneys and one person who ''had a bad day.'' It was difficult for me to regroup and begin my efforts again. However, I am still very active with the Beach and Country Guild and am its past president. Last year we raised another $98,000 with the help of John Hockenberry from Dateline NBC and from our partnership with Nordstrom. We shall continue our efforts in that regard.
(Copies of all correspondence, settlement agreement, and list of complaints are attached)
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I admire the ADA and its efforts to protect of the rights of the disabled. Unfortunately there are avenues within some state laws that allow individuals to twist the intent of the federal legislation for their own private benefit. I have included a letter from the Maureen McCloskey, National Advocacy Director of the Paralyzed Veterans of America who agrees.
We had absolutely no idea that we were not in compliance with the ADA, and had no problem making the corrections. We would have been happy to do that long before we were the target of a lawsuit. In fact, the corrections were made long before the settlement conference occurred.
Federal legislation provides an individual with the ability to force injunctive relief for a violation, but that individual may not take monetary damages. It is for this reason that plaintiffs add claims under state laws (in our case the plaintiff claimed Civil Code violations, specifically violations of the Unruh Civil Rights Act, Civil Code Section 51 and the California Disabled Persons Act, Civil Code Section 54). Both Acts have provisions for redress, allowing for maximum damages of three times the amount of actual damages down to a minimum of $1000, plus attorneys fees.
The actions, however, are filed in federal court and cite federal violations as well as state claims in order to get around the notice provision that would be required in a state court case. The claims are vague and extremely difficult to understand, which only force more attorneys fees on the defendant's side just to understand the specifics of the complaint. I had absolutely no luck with my County Building Department in understanding exactly what was wrong.
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I am attaching a memo prepared by Jim McNeill, an attorney with McKenna & Cuneo in San Diego which fully outlines the dilemma. If we can change state law to reflect the federal intent by adding a notice requirement, much of the money that goes into the pockets of the lawyers would go directly toward making corrections mandated by the ADA. The so-called ''advocates'' for the rights of the disabled could spend their time and money educating the public about the difficulties of access, and to look for and implement simple solutions instead of using litigation to serve only themselves.
Mr. CANADY. Mr. Glozier.
STATEMENT OF KYLE GLOZIER, NEW FREEPORT, PA
Mr. GLOZIER. My name is Kyle Glozier. I live in New Freeport, Pennsylvania and I am a private citizen. Good morning, members of the Subcommittee on the Constitution. I am honored to be here this morning.
I learned of this bill last week from an e-mail that was sent to my mom and dad. The Americans with Disabilities Act has been in place for 10 years on July 27, 2000. When my grandpa died last year and I went to the funeral, I had to be carried up and down the steps because the funeral home was not accessible. My family talked with the funeral director and told him about the ADA and how he was violating my civil rights by his building not being accessible. He promised that he would make it accessible. My grandma went and checked on this a few months later to make sure the funeral director kept his word, and he did. He installed a lift so that other people who use wheelchairs would not have to be carried up and down the steps.
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I feel that this bill that Mr. Eastwood is lobbying for is a bill that was designed to weaken the ADA and take away the civil rights of people with disabilities. Does he not understand that the ADA has been in place for 10 years and that if you renovate a building you must make it accessible to people with disabilities? He failed to do that and now wants the Congress to support him in his failure to comply with the law that is clearly written.
He says that the sleazy lawyers that file these so-called frivolous lawsuits are in collusion with people with disabilities. This is not the case. There are no money damages for individual plaintiffs under title III of the ADA, and the only financial incentive for businesses to address accessibility issues is the threat of having to pay the plaintiffs' attorney's fees. Many people with disabilities hire lawyers to sue people who fail to make their place of business accessible. Many people with disabilities file their own pro se lawsuits against businesses that fail to make their buildings accessible. It is people with disabilities, whom Mr. Eastwood refers to as people who cannot defend themselves, that hire lawyers and file lawsuits for violations of the ADA regulations. In fact, this is the most effective way that people with disabilities have to defend their civil rights in a society that does not accept them as equal.
Mr. Eastwood had the opportunity to comply and chose to fight the case and lost. That is his motive for being here today. Many small and large businesses already have complied with the law. This bill would reward those who only will comply when threatened with a lawsuit.
It is not right that I should be excluded from some place simply because the owner fails to think about all the people that may visit their place of business. If my school wasn't accessible, should I have to wait 90 days for them to decide whether or not they want to make it accessible? Why should my education be put on hold while they decide to make the building accessible? It is already bad enough when I go on field trips with my school. I always have to be segregated from my classmates to enter the building that we are visiting. What if this building was not accessible? Why should I have to wait 90 days to file a lawsuit?
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This bill is something that will make it virtually impossible to impose any kind of violations against the businesses that disregard the ADA by building buildings that I cannot get into. Why are people with disabilities——people with disabilities are citizens of the United States and deserve their rights under the ninth amendment. Why are people with disabilities singled out as the only class required to give advance notification of their violation of civil rights? I am a member of the public and I have rights, too. Thank you for your time.
Mr. CANADY. Thank you very much.
[The prepared statement of Mr. Glozier follows:]
PREPARED STATEMENT OF KYLE GLOZIER, NEW FREEPORT, PA
Good morning members of the Subcommittee on the Constitution. I am honored to be here this morning. I learned of this bill last week from an email that was sent to my mom and dad. The Americans with Disabilities Act has been in place for 10 years on July 27, 2000. When my grandpa died last year and I went to the funeral I had to be carried up and down the steps because the funeral home was not accessible. My family talked with the funeral director and told him about the ADA and how he was violating my civil rights by his building not being accessible. He promised that he would make it accessible. My grandma went and checked on this a few months later to make sure the funeral director kept his word, and he did. He installed a lift so that other people who use wheelchairs would not have to be carried up the steps.
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I feel that this bill that Mr. Eastwood is lobbying for is a bill that was designed to weaken the ADA and take away the civil rights of people with disabilities. Doesn't he understand that the ADA has been in place for 10 years and that if you renovate a building you must make it accessible to people with disabilities? He failed to do that and now wants the Congress to support him in his failure to comply with a law that is clearly written. He says that the sleazy lawyers that file these so called ''frivolous'' lawsuits are in collusion with people with disabilities. This is not the case! There are no money damages for individual plaintiffs under title III of the ADA, and the only financial incentive for businesses to address accessibility issues is the threat of having to pay the plaintiffs attorneys fees. Many people with disabilities hire lawyers to sue people who fail to make their place of business accessible. Many people with disabilities file their own pro-se law suits against businesses that fail to make their buildings accessible. It is people with disabilities, whom Mr. Eastwood refers to as ''people who can't defend themselves,'' that hire lawyers and file law suits for violations of the ADA regulations, in fact it is the most effective way that people with disabilities have to defend their civil rights in a society that does not accept them as equal. Mr. Eastwood had the opportunity to comply and choose to fight the case and lost. That's his motive for being here today. Many small and large businesses already have voluntarily complied with the law. This bill would reward those who only will comply when threatened with a lawsuit.
It is not right that I should be excluded from someplace simply because the owner fails to think about ''ALL'' the people that may visit their place of business. If my school wasn't accessible I should have to wait for 90 days for them to decide whether or not they want to make it accessible? Why should my education be put on hold while they decide to make the building accessible. It's already bad enough when I go on field trips with my school. I always have to be segregated from my classmates to enter the building that we are visiting. This bill is something that will make it virtually impossible to impose any kind of violations against the businesses that disregard the ADA by building buildings that I cannot get into. Why are people with disabilities singled out as the only class required to give advance notification of their violation of civil rights? I'm a member of the public and I have rights too!
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Mr. CANADY. Ms. Griffin.
STATEMENT OF CHRISTINE GRIFFIN, EXECUTIVE DIRECTOR, DISABILITY LAW CENTER, INC., BOSTON, MA
Ms. GRIFFIN. Mr. Chairman and members of the subcommittee, good morning. Good afternoon, I guess. And thanks for the opportunity to testify on the ADA Notification Act.
My name is Christine Griffin, I am a woman with a disability, a veteran of the United States Army, an attorney, not a sleazy one, and an executive director of the Disability Law Center. I was former special assistant to Vice Chairman Igasaki at the EEOC and also an active member of the Paralyzed Persons of America.
The law center that I run is the designated protection and advocacy agency in Massachusetts and a member of the National Association of Protection Advocacy Systems.
The mission of the law center is to provide information, training, technical assistance and, legal representation to promote the independence of people with disabilities throughout Massachusetts. The law center, like all protection advocacy agencies is federally mandated to provide legal representation to persons with disabilities under all Federal, State and local laws, including the ADA, and to pursue all appropriate remedies to protect their statutory and constitutional rights. This law center receives more than 5,000 requests for assistance every year. Many of these requests come from people with disabilities who have been denied access to a public accommodation.
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It is hard to believe, but people with disabilities are still experiencing discrimination in public accommodations 10 years after the passage of the ADA. That means owners of public accommodations had 10 years of notice, and it makes no sense that they need an additional 90 days before an individual can actually protect her legal rights in court.
Let me give you some real life examples that come to our law center, and I think Mr. Watt, you will be interested because it is analogous to race. It is not always about a ramp or a physical access device that has to be in place. Why should a person who is blind and uses a guide dog for mobility assistance have to wait 90 days after they have been denied access to a restaurant because they have a service animal with them? Why should a person who uses a wheelchair, who has been denied access to a restaurant that was recently remodeled but failed to comply with State and Federal laws, have to wait 90 days after their civil rights have been violated? Why should a person with mental retardation wait 90 days to invoke a court's jurisdiction after being told by a restaurant owner that he will not serve him because he does not think the other customers want to look at him? Why should a man with cerebral palsy have to wait 90 days after being refused service at a local liquor store and then escorted out of the store by local police who call him retarded?
Why should a young man who uses a wheelchair have to wait 90 days to file a lawsuit after the taxi driver tells him that he does not pick up people that are crippled because he does not want to help them? Why should the parents of a 4-year-old child with Down syndrome have to wait 90 days to file a lawsuit against an afterschool music program that denied the child's access because the director of the program was uncomfortable with that child? And why should the working parents of a child with a disability have to wait 90 days after their child is denied access to day care because the kid has a disability?
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Taking these real life examples, how would waiting a mandatory 90 days in any of these examples make any of those public accommodations comply with the law? The fact is that it would not, and it would not take a fistful of dollars for any of these title III entities to comply with the law.
Acts of egregious discrimination still happen every day and Congress was aware of that 10 years ago. Congress heard these same examples that I just cited 10 years ago and they passed the law without a waiting period. I am here to tell you that those issues still persist 10 years later.
Those of us at the law center and at all protection advocacy agencies talk to people daily who have had their civil rights violated by thousands of public accommodations. There is significant noncompliance, and the reality is that our agencies are not able to take a lot of these cases. We actually have started a mediation program. When someone calls and complains about a title III program, we offer free mediation service through mediators in Massachusetts who volunteer and have been trained. And, lo and behold, whenever we offer this service to the person who is complaining, the person with the disability, almost 99 percent want to participate. When we call the business owner and offer the same free mediation to resolve this issue, and I am sure it gets them more than 90 days before this is resolved, most business owners don't actually take the opportunity to participate in this. Instead, they hedge their bets and they wait for the lawsuit.
You know, the Department of Justice has done a wonderful job training people. They have an ADA Guide for Small Businesses. We as protection advocacy agencies do free training for people with disabilities and businesses. And they have had training. They have had it for 10 years. They all know it exists; and to act like they do not know is a little unconscionable. Some of us in the disability community actually wish DOJ would stop doing the training and spending all the resources there and do a little more of filing lawsuits and that is a fact.
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I know I am getting close to my time and I just want to tell you that reiterating congressional commitment to equal rights for people with disabilities will move us closer to your goal, Congress' stated goal nearly 10 years ago, of having the ADA enable the United States to take a long-delayed but very necessary step to welcome individuals with disabilities fully into the mainstream of American society. We are sick of waiting. And to make us wait 90 more days every time we want to file something will really be a detriment to our civil rights. Thank you.
Mr. CANADY. Thank you Mrs. Griffin.
[The prepared statement of Ms. Griffin follows:]
PREPARED STATEMENT OF CHRISTINE GRIFFIN, EXECUTIVE DIRECTOR, DISABILITY LAW CENTER, INC., BOSTON, MA
Mr. Chairman and members of the Subcommittee:
Good Morning, and thank you for the opportunity to testify on H.R. 3590, the ADA Notification Act. My name is Christine Griffin and I am a woman with a disability, a veteran of the United States Army, an attorney and Executive Director of the Disability Law Center, and a former Special Assistant to Vice Chairman Igasaki of the Equal Employment Opportunity Commission, which has responsibility for enforcing the employment provisions of the ADA. I am also an active member of the Paralyzed Veterans of America. The Law Center is the designated protection and advocacy agency in Massachusetts and a member of the National Association of Protection and Advocacy Systems.
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The mission of the Law Center is to provide information, training, technical assistance and legal representation to promote the independence of people with disabilities throughout Massachusetts. The Law Center, like all protection and advocacy agencies, is federally mandated to provide legal representation to persons with disabilities under all Federal, state and local laws, including the ADA, and to pursue all appropriate remedies to protect their statutory and constitutional rights. We receive more than 5000 requests for assistance each year. Many of these requests come from people with disabilities who have been denied access to a public accommodation.
It is hard to believe but people with disabilities are still experiencing discrimination in public accommodations 10 years after the passage of the Americans With Disabilities Act. That means owners of public accommodations have had 10 years of notice and it makes no sense that they need an additional 90 days before an individual with a disability can protect her legal rights in court.
Let me give the Subcommittee some real life examples of issues that have come to us under title III and raise the question why a notification requirement would make sense in these situations:
Why should a person who is blind and uses a guide dog for mobility assistance have to wait 90 days after they've been denied access to a restaurant?
Why should a person who uses a wheelchair who has been denied access to a restaurant that was recently remodeled but failed to comply with state and federal access laws have to wait 90 days after their civil rights have been violated?
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Why should a person who has mental retardation wait 90 days to invoke a court's jurisdiction after being told by a restaurant owner that he won't serve him because he doesn't think the other customers want to look at him?
Why should a man with cerebral palsy have to wait 90 days after being refused service at a liquor store and escorted out of the store by local police who call him retarded?
Why should a young man who uses a wheelchair have to wait 90 days to file a lawsuit after a taxi driver tells him he does not pick up people who are ''crippled'' in his cab because he doesn't want to help them.
Why should the parents of a 4 year child with downs syndrome have to wait 90 days to file a lawsuit against an after school music program that denied the child's access because of the director's discomfort?
Taking these real life examples, how would waiting a mandatory 90 days in any of these examples make any of these public accommodations comply with the law? The fact is it wouldn't. And it wouldn't take a ''fistful of dollars'' for any of these title III entities to comply with the law. Acts of egregious discrimination still happen every day and Congress was aware of that fact10 years ago. Congress heard examples like those that I cited when the ADA was passed without a waiting period. And I am here to tell you that these issues still persist 10 years later.
Those of us at the Law Center and at all the protection and advocacy agencies throughout the country talk to people on a daily basis whose civil rights have been violated by thousands of public accommodations. There is significant non-compliance and the reality is that if our agencies don't take these cases there are very few private attorneys who will.
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A critical underpinning of the ADA is the right to private enforcement. Whether this landmark civil rights law is to be ultimately enforced rests upon the ability of individuals with disabilities to seek and obtain effective judicial relief. The reality is that even without this notice provision, it is already difficult to find a private attorney that will accept a title III discrimination case.
When our capacity prevents us from taking a public accommodations case, we have a difficult time referring this type of case to a private attorney. In response to that problem, we initiated a mediation program that is free to the complainant (the individual with a disability) and free to the business owner. We first ask the individual calling with the complaint if he or she is willing to mediate the complaint. In most cases, the individual says yes. They just want access. We then contact the respondent (the owner or manager of the public accommodation ), and in most cases the business owner declines to participate. They prefer to hedge their bet and wait to see if someone files the lawsuit.
If this legislation, which would require a 90 day waiting period, is in response to lawyers who prey on people with disabilities to make money as Mr. Eastwood has said, why make public policy based on the conduct of a few bad actors. Why would Congress make policy that in effect penalizes those business that obeyed the law and have already complied?
Passage of this notification requirement would clearly remove the primary incentive for businesses to take the initiative to ensure access to their goods and services. This is because, given that damages are not available under title III of the ADA, the primary economic motivation to voluntarily comply with the law is the prospect of paying attorneys fees to plaintiff's counsel if a title III violation is proven. With the passage of the notification requirement, business owners will simply take their chances that there never will be a complaint raised against them, and will flout the law's accessibility requirements.
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The notification provision also would remove an important tool to assure compliance—a speedy court order for preliminary injunction, which is often necessary to prevent immediate harm, where no other remedy would be adequate. Attorneys must preserve the option of seeking this remedy for their clients, but the notification requirement would effectively deny them this key protection. Also, in my experience, most attorneys already provide notice to violators of the ADA and an opportunity to attain compliance voluntarily. But there are many circumstances where it is in the client's best interests to dispense with a protracted notification period—in order to secure justice. This strategic option should not be denied to counsel when necessary to protect the rights of vulnerable people with disabilities.
If Congress wishes to make public policy that encourages compliance, why not instead increase the tax deductions and credits available to business owners that provide access? Why not instead increase resources available to the Department of Justice, other federal agencies and the private sector to provide intensive technical assistance to small businesses on the requirements of title III? Most protection and advocacy agencies, including my own, provide an extensive amount of training and technical assistance to the disability community as well as the business community as an effective means of redressing access rights and obligations. Investing resources in community education would be a more productive approach than establishing a new barrier that would limit an individual's ability to privately enforce the law. Reiterating Congressional commitment to equal rights for people with disabilities will move us closer to Congress' stated goal nearly 10 years ago of having the ADA enable ''the United States to take a long-delayed but very necessary step to welcome individuals with disabilities fully into the mainstream of American society.''
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Mr. CANADY. Mr. Watt is recognized.
Mr. WATT. Mr. Chairman, I am almost reluctant to even ask any questions. The witnesses, each one of them, have presented a very thoughtful perspective and it is just hard for me to know where to go in questioning them.
Let me just get a couple of clarifications. Ms. Batelaan, I am advised—you are from Florida; right?
Mrs. BATELAAN. That is correct.
Mr. WATT. I am advised that the Florida State statute has been accepted as—if I comply with the Florida State statute, you are in effect certified to be in compliance with Federal ADA; is that correct?
Mrs. BATELAAN. Yes.
Mr. WATT. Okay. What kind of job is Florida doing to educate people about the standards?
Mrs. BATELAAN. Well, I don't know—I am going to answer it from the perspective of being a small business owner. We have compliance—we are in a unique perspective because we are so new. Florida is flat, and the construction and the building in our area that is going on and has been going on probably since the middle seventies is like booming. So lots and lots and lots of our facilities are brand new. And we have had a pretty strong architectural barriers law in Florida since 1974 which we worked on back in 1974. So maybe in some ways we are unique.
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Now, as a small business owner have I ever been taught about ADA, precisely about ADA? Oh, maybe I got a little bit of literature through an organization that I may have belonged to, like the Chamber. Do they hammer away at you, at small business? Do they tell you specifically what the ADA is going to do or not do? Not recently.
Mr. WATT. But you are not, in your presentation, you obviously are a strong supporter of the ADA and laws that protect Americans with disabilities. Are you saying that you were not aware that you were in violation of the law?
Mrs. BATELAAN. Was I aware that I did not have one blue parking space?
Mr. WATT. Yes, were you aware that the ADA required that?
Mrs. BATELAAN. Yes, I was aware of that.
Mr. WATT. So had you been given notice, that notice would have notified you about something that you were already aware of?
Mrs. BATELAAN. Yes, that is correct. The notice would have—if any one of my customers would have come to me and said, you know you really should paint that spot out there, we would have done that. Does my one blue spot make a difference for people with disabilities? In my particular situation, no.
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Mr. WATT. Ms. Davis, you had, even according to your testimony, a management company that managed 61 different properties—well, first of all, did you win or lose this lawsuit that was filed?
Ms. DAVIS. We settled, so——
Mr. WATT. Did you acknowledge that you were in violation of the law?
Ms. DAVIS. Oh, absolutely.
Mr. WATT. Were you aware before you filed the lawsuit?
Ms. DAVIS. Definitely not.
Mr. WATT. Your argument is that if you had been given notice, you would have voluntarily complied and it would have saved some litigation expenses and that would have been a better way to proceed.
Does it concern you that this bill does not protect people of good intentions like you, but it would apply equally to people who have bad intentions and are willing to just sit there, knowing that they are in violation of the law, and wait on somebody to give them notice or wait on somebody to say please comply with the law that you already know is on the books, does that trouble you?
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Ms. DAVIS. Yes and no. I think that, ultimately the changes need to be made and a key word is especially when there is renovation done. I was not renovating. I just did not know from the previous property manager when I took over, since they hired consultants, I did not question that there would be anything wrong so I had no question until she hit me with a lawsuit.
But I still say that, you know, once you find out something is wrong, you have to correct it. So you are going to correct it anyway.
Mr. WATT. Some people will, I acknowledge that. I am concerned about the people who won't necessarily.
Ms. DAVIS. Why throw in attorney's fees? Why make somebody get rich off of it? If have to do it, you have to do it. But under Federal ADA legislation under some attorney that is just making a whole lot of money on the side, that is my whole point.
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 2 additional minutes.
Mr. WATT. Actually, I think those are the points that I wanted to make. I think I will yield back.
Mr. CANADY. Thank you Mr. Watt. Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I want to thank the witnesses for their testimony. I first want to say that I think the attorney's fees provisions are important in civil rights cases. They certainly encourage voluntary compliance, and provide some relief for people who have been injured by a violation of the law.
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Let me make two points. One, I think part of this is simply the legal profession and whether we are adequately reviewing the conduct of attorneys who misuse their authority. I think Ms. Batelaan even mentioned in her testimony that we should change this law because of some abusive attorneys. I think that point is a good point. I hope our bar associations do a better job in reviewing the ethical conduct of attorneys.
The second issue is whether the disability community should be the only aggrieved individuals who would have to go through a 90-day notice in order to file suit. Ms. Griffin, I was just thinking back to my own experiences. If a woman is discriminated against in her employment, or an individual is discriminated on the basis of race, they have to file a grievance with the Equal Employment Opportunity Commission prior to initiating a lawsuit, they have 270 days to file it, but that really amounts to well over a 90-day waiting period before a suit can be filed and relief can be sought. And the whole idea of requiring those who are filing discrimination lawsuits in employment cases is that you give the parties an opportunity to work it out, without the necessity of litigation.
I think that there is some argument that it is a cumbersome process that maybe ought to be eliminated and instead give people direct access to court. Do you support the requirement that aggrieved individuals in employment discrimination occasions, title VII cases, be required to go through the EEOC?
Ms. GRIFFIN. Yes, I do, because a lot of times it is resolved there and things happen. Cases get settled, there are damages, et cetera. But, also, you have the opportunity after a very short time period to get a right-to-sue letter. That is pretty easy to get. You can usually proceed pretty quickly.
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Mr. HUTCHINSON. That is a true statement, but it is a significant hurdle. I have obtained those right-to-sue letters and probably the minimum time frame in which I would get a right-to-sue letter would be 30 to 60 days, because the EEOC has an opportunity in the law to mediate and investigate the complaint, and the employer has an opportunity to respond.
Tell me if I am wrong here, but it would appear to me that women who believe that they have been discriminated against in employment, and individuals because of race or religion who believe they have been discriminated against in employment, all have to go through this notification requirement, this requirement to go through the EEOC.
Ms. GRIFFIN. Yes, but I would say it is not really a notification. I mean, things are happening there. The case is being investigated. It is proceeding along a track and settlement conferences occur and things like that, and the new mediation program that they have in place. Things like that occur. You are talking about a 90 days where nothing happens at all except you have sent a letter saying you are out of compliance. The reality is, most attorneys, as most you have said that are attorneys, you do send a demand letter. We are talking about a handful of attorneys, which is exactly what Mr. Eastwood said on TV last night, a handful of sleazy attorneys. And why are we going to make public policy around a handful of sleazy attorneys?
The bar associations' ethical rules should take care of those things and the courts do. The courts I think have gotten stronger and stronger about dealing with attorneys that act unethically. And that is where I think the resolve should be. It shouldn't be with Congress.
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Mr. HUTCHINSON. I appreciate your testimony. I do have a few minutes to ask questions and I would like to be able to take advantage of that opportunity.
Ms. GRIFFIN. Well, we are passionate about this issue.
Mr. HUTCHINSON. You have helped me to understand, though, that you do support the requirements for going through the hurdle of the EEOC in discrimination cases. Now if there is a suit filed under ADA, Americans with Disabilities Act, you do not have to go through the EEOC?
Ms. GRIFFIN. No, you do not.
Mr. HUTCHINSON. So you have eliminated that barrier of going through the EEOC. I think it is important—I would not be in favor of just simply a requirement——
Ms. GRIFFIN. You are talking employment. The issue here is title III
Mr. HUTCHINSON. I yield back my time.
Mr. CANADY. The gentlewoman from California, Ms. Waters.
Ms. WATERS. Well, I guess I don't know how many questions I have. I think that the case really has been made quite clearly and profoundly for us to protect the ADA. I think our witnesses here have done a good job.
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I do believe that there are opportunities to deal with bad attorneys in every State. In the State of California we have the State Bar Association. And I do think that it probably is just a small number of attorneys that may be abusing the opportunity, and that certainly somebody pursued.
Today, perhaps, is not the day that I should even be sitting here listening to this. I woke up this morning to the announcement that there finally were some indictments against the gentleman who bombed a church where four little girls were killed how many years ago? Little black girls in Alabama. Now what does that have to do with this? Attitudes. Attitudes.
There are people who do not like folks who look different, who have a different color, who act different, what have you. And those attitudes lead to bad things. I have lived long enough to see racism, discrimination, and discrimination not just against people of color, but handicapped people. There was a time when children could not attend school—public schools that taxpayers pay money for—could not attend public schools.
Still, even with the ADA, as Mr. Glozier testified, there are too many situations where children cannot enjoy life because they do not have access to buildings. When they are trying to take trips with the other students in their class, children are limited oftentimes in what they can participate in because there are some people who just do not want to comply. They think it is too cumbersome, they think it costs too much money, but there is a cost for doing business. There is a cost for doing business. And while it may be uncomfortable or inconvenient, I think it must be honored.
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It was hard fought to get to where we are in this country to respect people with disabilities. Again, I will come down on the side of dealing with the attorneys, and it is my understanding that the attorneys cannot charge anything they want to charge, that it is really left up to the courts. The judge can make a decision about whether or not the fees are unreasonable, too high, too costly.
So, on the one hand, while we have an attempt to modify the ADA, and people who are complaining, I don't think that enough thought has been given to how those who are dissatisfied or feel inconvenienced can deal with the alleged abuse by some attorneys.
It is extraordinary to come to the Federal level to deal with what is in many cases problems that are taking place in the State. To overturn a law at the Federal level is kind of an extraordinary action. And so I do not have a lot of questions.
I am so pleased that Mrs. Batelaan is here as a business owner, perhaps able to operate in ways that have been made easier because of the ADA. You certainly have a right to be here to try and help us to understand also the problems that you may be confronted with. But when I weigh the benefits of the ADA to the inconvenience that you now confront as a businessperson, I come down on the side of protecting and saving the ADA. Thank you all very much.
Mr. CANADY. Thank you. I want to express my gratitude to all the members of this panel for your testimony. I think each of you has brought the subcommittee a perspective on this that is very valuable to us in understanding the way the law is operating now and the consequences of potential changes in the law. And I think these are all things that we should seriously consider.
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I have just one question. And I think there seems to be some agreement that, at least in some cases that we have heard about the practice of some lawyers of rushing to court and filing a lawsuit without trying to resolve something that would be easily resolvable by a letter or some process of notification is troubling. And I think, Ms. Griffin, you have acknowledged that. And if I understood you correctly, you seem to believe that the lawyers that are involved in such cases are violating some ethical provision that would be applicable. Am I incorrect?
Ms. GRIFFIN. I don't think they are actually violating—there is no ethics rule that says you cannot go right to court. You can. And, you know, I think the practice as you all have said and I have said, the practice is usually to send a demand letter and try to straighten it out. So a lot of us do not like the practice of someone just going and filing a lawsuit.
But there is nothing that precludes a person from doing it. I think when you talk about extortion and collusion with people to make money, now you are talking about some ethical problems and there are some rules about that, about sharing the attorney's fees and all that type of thing.
I think, if it is a handful of people, it should be resolved a different way and not through public policy.
Mr. CANADY. I appreciate your thought on that but I wanted to be clear that there really is no mechanism available to solve that problem other than a change in the law or perhaps would you rely on the exercise of discretion by the judges who have the authority to determine whether attorney's fees are granted?
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Ms. GRIFFIN. Well, that is exactly what happens. And so it is not like anybody can go out there and charge millions of dollars without a judge saying that is okay to do. They review every attorney fee petition, if that goes to court, if you do not settle.
Mr. CANADY. Again, I appreciate your perspective on that.
Ms. GRIFFIN. Could I just say one thing? I think what we also have to remember is that there are instances when you do want to go right into court, where you want to get a preliminary injunction to stop immediate harm so that you certainly wouldn't want to have——
Mr. CANADY. I think that is a good point. Could you give a couple of examples where you think that sort of action of seeking a preliminary injunction would be indicated and appropriate?
Ms. GRIFFIN. Say in the case, the example I gave you, of the working parents with the child who is denied access to day care. They cannot get him into day care because the day care—it is not a physical access issue, it is the day care saying no, we do not want this kid with a disability in here. We have these cases all the time. We have the case of the music program. That is a case where you would want to go in immediately and stop that harm. This kid needs to be in day care. That is the day care that serves his area and you want a preliminary injunction to say, no, this kid has every right to be in here and you have to serve this child just like every other child. You do not want to wait 90 days in those circumstances.
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There are lots of others. We routinely go in and get a preliminary injunction. We had a case where a kid was in an after-school hockey program and they would not allow this kid to play hockey. And so the hockey team was starting; if we did not get the preliminary injunction, the season would have been over if we waited 90 days and had to file something. And this would have ruined this kid's chance of being recruited into a college. So there is lots of immediate harm that you can show and so there are lots of times—I think in health care issues, someone being denied access to serious health care, you would want to go in and get an injunction right away. No, you cannot wait 90 days for certain issues.
Mr. CANADY. I appreciate your testimony on that. I think those examples are helpful in giving the committee an understanding of the range of situations where potential changes in the law might have an impact. Again, I want to thank all of you for participating. You have been very patient in waiting through the long series of votes. We appreciate your contribution to the deliberations of the subcommittee. Thank you and we will now go to our next and concluding panel.
Mr. WATT. Mr. Chairman, let me ask unanimous consent to submit for the record Ms. Waters' opening statement and a copy of the U.S. Small Business Administration and Justice Department publication entitled ''Americans with Disabilities Act: ADA Guide for Small Businesses.''
Mr. CANADY. Without objection.
[The information referred to follows:]
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PREPARED STATEMENT OF HON. MAXINE WATERS A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you Mr. Chairman. Let me begin by saying I am unequivocally critical of unscrupulous lawyers who subvert the Constitution and the legal system for their own gains. I have a reputation of supporting legislation aimed at protecting the everyday folk.
Nevertheless, I am skeptical of the aims of H.R. 3590, ''The ADA Notification Act. This bill, introduced by Rep. Mark Foley (R–FL) and Rep. Clay Shaw (R–FL), would amend title III of the ADA by providing that a court would not have jurisdiction in an ADA case, unless:
1) the plaintiff provided the defendant with a notice of the alleged violation;
2) the plaintiff identified the specific violation;
3) 90 days have passed during which the defendant did not correct the alleged violation; and,
4) the Court is given authority to sanctions those attorneys who fail to wait for 90 days before commencing a legal action.
Any efforts to scale back the hard-won civil rights protections of members of the disabled community must be weighed carefully. Particularly when such action is being undertaken by this Subcommittee. The reality of the situation is that this Subcommittee has a history of attacking civil rights gains in the name of legal integrity. Efforts have been taken to undermine the Fair Housing Act of 1968, affirmative action programs, and other civil rights gains. In fact, last year when this committee entertained the Bankruptcy bill, it went out of its way to undue the legal protections afforded to those in debt, while it protected the questionable actions of the credit card companies and other financial institution lobbyists.
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If this subcommittee is serious about the bad acts of some lawyers, then let us have a hearing that would examine whether the state bar ethics boards are an effective vehicle to address such grievances. I cannot in good faith support an attack on the ADA because we want to go after bad acting lawyers.
I look forward to the testimony of the witnesses.
Thank you.
[NOTE: The U.S. Senate Business Administration and Justice Department's publication, Americans with Disabilities, is not reprinted here but is on file with the House Judiciary Committee's Subcommittee on the Constitution.]
Mr. CANADY. I want to welcome the members of our final panel for the day and proceed with the introduction of each of you.
Our first witness on this panel is Joe Fields, Jr., an attorney who represents the disabled in West Palm Beach, Florida. Mr. Fields is also a member of the board of the West Palm Beach Office of the Florida Centers for Independent Living. Mr. Fields represented the Batelaans in the lawsuit filed against them by New Jersey attorney Anthony Brady. We had invited Mr. Brady to be here today, but he sent word to us yesterday afternoon that due to an injury, he would not be able to attend the hearing. We will, however, place his statement in the record.
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[The prepared statement of Mr. Brady follows:]
PREPARED STATEMENT OF ANTHONY J. BRADY, JR.
I thank the House Judiciary Committee and its subcommittee on the Constitution for the opportunity to express my views in regard to the proposed amendment to title III of the Americans With Disabilities Act to require notice prior to filing suit.
Prior to discussing the specifics of the Act which would make the ADA a paper tiger it would be relevant to examine my background. I am an attorney who practices in the States of Florida, New Jersey, Pennsylvania, and South Carolina who represents the disabled.
From my early childhood I was made aware of the importance of safeguarding the dignity of the individual from my father who left this world this past April. In 1928 my father, as an eight-year Catholic schoolboy was beat up because of Al Smith, a Roman Catholic, was running for President. During the same year he witnessed the Ku Klux Klan march in his town square. The day after Pearl Harbor he joined the United States Navy and was assigned to the Battleship U.S.S. South Dakota. Prior to service on the South Dakota, he had faced discrimination when at boot camp he requested the opportunity to attend mass. He was told by his commanding officer to forget about that ''Catholic S***''.
On the South Dakota he became friendly with an African-American who served duty in the kitchen, notwithstanding, that he was a graduate of the Massachusetts Institute of Technology. He told me such a waste. He also told me that there were few officers from the Naval Academy who were not WASPs. The academy was not for blacks, Jews, or Catholics. During service of the Battleship South Dakota my father became a disabled American Veteran.
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During my childhood he spoke many times about his experiences about the South Dakota and the Cruiser Wilkes Barre. He spoke of American struggles against the evils of tyranny and prejudice that he believed was the purpose of the war against Germany and Japan.
As a child he took me to Gettysburg, the holy ground where Abraham Lincoln said that America was ''conceived in Liberty and dedicated to the proposition that all men are created equal.'' He discussed the efforts of President Kennedy, Martin Luther King, President Johnson, Senator Hubert Humphrey, Republican Senator Clifford Case of New Jersey and Republican Robert Dirkson of Illinois who were attempting to fulfill Lincoln's and Jefferson's dream that all men are created equal.
At Camden Catholic High School and at Rutgers University, I became best friends with Dean Ragone, who at age sixteen, became a quadriplegic from a diving accident. As our friendship developed I became a witness to the benign prejudice against him when he could not attend the same concerts and ballgames because of everyone else because of his disability. In the meanwhile President Bush in 1990 signed the Declaration of Independence for the disabled. Future Speaker of the House Gingrich stated, ''Mr. Chairman, throughout our nation's history, our disabled citizens have not been provided the opportunity to participate in all phases of society. Designed to provide 43,000,000 Americans with enhanced opportunities, this bill, then, embodies the conservative ideal of individual opportunity.'' 136 Cong Rec H2631 (daily ed. May 22, 1999)
After a series of trips to Eastern Europe I decided to change my life and attempt to serve people, consequently, I decided to represent the disabled.
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In my ADA practice I had the honor of prevailing before the prominent conservative jurist Samuel Alito of the United States Court of Appeals for the Third Circuit in the case of Caruso, et al., v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3rd Cir. 1999) who held that to deny access to the lawn area of an entertainment facility that accommodates 18,000 spectators was repugnant to the ADA.
I have had the honor of prosecuting claims against Disney at Orlando, Kmart and Wal-Mart Corporations in a number of states as well as an Atlantic City casino, Moyer v. Showboat Casino Hotel, Atlantic City, 56 F. Supp. 2d 498, 502 (D.N.J. 1999).
The overwhelming majority of my cases have been against national corporations, government entities or actions arising under the new construction requirement of the ADA. 42 U.S.C. §12183.
This author of the pending legislation has focused on the case of Pavlak v. Action Mobility Products,District of Florida in his support of the bill. Unfortunately, the defendants have not been forthright concerning the case. In Action Mobility the plaintiff, prior to the suit, complained of the lack of accessibility of the facility, namely, that because of the lack of parking for the disabled the disabled had to be dragged through a gravel parking lot. Attachment One. The defendant in the yellow pages of the telephone book held himself as an ADA consultant, Attachment Two. Clearly he is knowledgeable about the ADA. Finally, the owner, Mr. Batelaan, was a Board of Director on the non-profit corporation, Florida Alliance for Assistive Services & Technology, Inc., that received federal funds to remove barriers to improve access. I suppose the defendant would be of the opinion that before a state trooper could give a ticket for speeding, he would have to be given a warning.
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Turning to the bill itself the proposed changes would effectively destroy any incentive for a corporation to obey the ADA.
First, the bill makes no distinction between large and small businesses. As previously stated, a large percentage of my ADA cases are against national corporations. For example, I have sued Kmart and Wal-Mart in multiple jurisdictions for the same violations. The national corporations are well aware of the ADA but choose to ignore it. In other words, the bill is a signal to big business that they do not have to comply with the ADA.
Second, the bill makes no distinction between the requirement of removing existing architectural barriers and the new construction requirements. This bill allows architects and contractors to build defective buildings because an individual would have to wait until construction is completed before they bring suit. In fact, the bill might encourage plaintiffs to sit in the tall grass and allow construction to go forward. The cost of fixing architectural problems for businesses will escalate.
Third, the basic and major terms of the bill are undefined and unclear. For example, concerning notice if the plaintiff fails to name the proper corporate entity is service deficient? 308(1)(b)(i). What happens if notice is given to a non-officer of a corporation is service deficient? In regard to the requirement that the violation be specifically identified. What does specific facts mean? If an individual cannot get into a facility because it has a one-step barrier does she have to give new notice if it turns out that the bathroom is not accessible? 308(b)ii. Does the legislation require simply the mailing of notice or the receipt of notice? Should a defendant be allowed to dismiss a lawsuit because he claims that he never received proper notice? Who has the burden of proof? 308(1)(b)iii. What happens if the defendant continually makes promises that specific items will be corrected? Does the plaintiff have to hold off filing suit if the defendant promises to correct the violations? How much additional time does the defendant get? In such cases should the statutory amendment require the defendant to post a performance bond to guarantee the completion of the promised improvements? 308(B)(iv).
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Fourth, the bill would render it cost prohibitive for most disabled individuals to prosecute their cases because the bill requires that a plaintiff specifically inform the defendant of the specific violations of the ADA, 308(b)(iii). Consequently, a disabled individual would have to retain an architect as an expert and if the defendant corrects the problem, she would not be reimbursed for the expert fees.
Fifth, there are already safeguards in place to protect businesses against frivolous lawsuits. F.R.CivP11. Indeed, in a case where a defendant wants to comply with the ADA, the defendant can make an offer of judgment which stops the attorney fee meter from running. F.R.CivP68.
Sixth, if plaintiffs are made to wait because of this technical provision, shouldn't defendants be liable for damage awards for the intentional refusal to promptly correct accessibility?
Seventh, is the bill necessary? The ADA is now approaching its 10th anniversary. In the last 10 years the ADA has been publicized thousands of times via television, radio and newspapers. 3,650 days is plenty of warning for said businesses to comply.
Finally, the law would hinder the ability of the disabled to be involved in the businesses of America as the attached letter from Dean Ragone, a successful disabled businessman, expresses.
In conclusion, it is respectfully submitted that the amended bill would basically render the ADA a paper tiger. The ADA was signed by President Bush, the next president might be his son. Should we wait until his grandson is elected prior to the disabled being treated as equal citizens.
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Mr. CANADY. Our second witness on this panel is Andrew Levy, an attorney with the law firm of Brown, Goldstein & Levy of Baltimore, Maryland. Mr. Levy has acted as counsel in efforts to establish group homes for persons with disabilities.
Our third witness on this panel is Christopher G. Bell who is the managing partner of Jackson, Lewis, Schnitzler & Krupman, in Minneapolis, Minnesota. Mr. Bell is a recognized expert lecturer and trainer on the Americans with Disabilities Act. Mr. Bell served as principal advisor to Chairman Evan J. Kemp, Jr., at the United States Equal Employment Opportunity Commission and spearheaded the development of the EEOC's ADA regulations technical assistance manual and the ADA sections of the compliance manual. He also played a significant role in the development of ADA providing technical assistance to the White House and Senate and House committees.
Following Mr. Bell is Frederick A. Shotz, owner of ADA Consulting Associates in Fort Lauderdale, Florida. Mr. Shotz is also the president of the Association of Disability Advocates and the treasurer of the Florida Paraplegic Association.
Our final witness on this panel and for our hearing today is Tammy K. Fields. Besides being the wife of Joseph Fields, earlier witness, Mrs. Fields is an assistant city attorney for Palm Beach County, Florida, specializing in civil rights areas. Palm Beach County is one of the many areas of the country whose small businesses have been struck with lawsuits filed without notice under the ADA, and on Tuesday, the county commission passed a resolution supporting H.R. 3590, the bill that we have under consideration here today.
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I want to thank each you for being with us. I would ask that you do your best to summarize your testimony within the 5 minutes, and without objection, your full written statements be made a part of the permanent record of this hearing.
Mr. Fields.
STATEMENT OF JOE FIELDS, JR., ATTORNEY, WEST PALM BEACH, FL
Mr. FIELDS. Thank you, Mr. Chairman, members of the panel, I am Joe Fields, an attorney in south Florida. I am one of the attorneys that has fought the fight for the disabled. And until about a year ago, I would have never thought that I would be on the other side fighting for businesses. But I thought I would spend this afternoon telling you some of the stories of some of the cases that you have heard tidbits about. The number is not 600; it is closer to 1,000 cases that have been filed in south Florida and those cases have been filed by a group of four or five associations represented by three or four different sets of attorneys.
And what we have discovered is that those attorneys are using forms, over and over and over again. Unless you handle a lot of these cases, such as I do, most of the lawyers that are handling the defense of these persons and businesses that are being sued have not recognized what has been going on in a lot of the cases. And I am not alleging that every single attorney that I have opposed has done this. But, what I have seen is an attempt to charge for work that was not done.
I represented Baseball Dugout, which was one of the businesses that was sued, that caused Mr. Foley, or Congressman Foley, to file this bill. Baseball Dugout fixed the problem within a week or two of being served. The lawyer that sued this company came out there and said, yeah, everything is fine; I want some money. He thereafter sent my client a letter saying I want $4,500—$4,500 to do about 2 hours' worth of work.
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That case has settled. My client made a contribution to a charity of his choice. We paid $250 in fees, I mean in costs, and I sent them packing. But I was only able to do that because I knew that some of the other cases that they had filed were mirror images of the other cases. The discovery that was filed, the interrogatories, the request for production were all the same.
And what happens is you have small businesses that do not know any better that get hit with lawsuits like this and before they know it, they are looking at a $4- or $5,000 attorney's fee.
In south Florida, we have court procedures which mandate that certain things be done, within 60 days certain things be done, within 90 days counsel must meet. Counsel must disclose witnesses. For every single business that I have represented in the past year in these cases, I have immediately said, fix it now and fight them later on the fees. And for that reason, I have been quite successful in having the cases against my clients resolved quickly.
The problem is; when I have a client who is now faced with a $4,000 bill, how does that client justify paying me to go to the courts to fight? In Federal court, litigants get attorney's fees for arguing attorney's fees. So if I am successful in establishing that an attorney is not worth $500 an hour, $600 an hour, $1,000 a hour, he is still going to get something and he is still going to get attorney's fees for having fought an unsuccessful fight.
For that reason, I attempted to help Congressman Foley in drafting this bill. I am not certain that 90 days is appropriate. Perhaps now is the time to debate the issue of how to go about protecting people's rights that need assistance immediately. But at the same time you need to protect the businesses.
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And let me tell you, it is not going to go away. I have been predicting for the past year that we are going to see an explosion of ADA litigation, and that is what is happening. It ain't going to take long for the folks of south Florida to realize and more and more attorneys are going to find out that this is a great way to make fees, and you have law firms in south Florida that are making hundreds of thousands of dollars filing lawsuits that are mirror images of each other, and settling the cases and getting $4- and $5- and $6,000, $30,000 at a crack.
I support some type of protection for small businesses. I am not certain if 90 days is the appropriate way to do it. I definitely feel that folks that need assistance and protection from the courts should get it. But at the same time, the businesses that are operating under the perception that because they have an occupational permit in which supposedly an expert in zoning, an expert in how buildings are supposed to be built, has come to their shop or their business and said, you are approved. How do you tell somebody who calls you and says, ''I just got sued for ADA violations, it shouldn't take you more than a couple of phone calls because I have a certificate of occupancy so obviously I am in compliance,'' and then when I go and speak with them or meet with them, I have to tell them, no, you are not in compliance. The local inspectors were not aware of or did not inspect your business for ADA compliance.
So I would urge you to discuss and debate what is being done here today. I am not certain that 90 days notice is good. But at the same time, I know that 1,000 lawsuits this year, is going to be 5,000 in a couple of years. You are going to have the Federal courts clogged with these cases.
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And one last thing. One of the things I would suggest is some type of offer of judgment procedure by which when a business is sued, and that business rolls over, and concedes the problem, fixes it, they not be hit with a huge attorney's fee. In Florida, we have offers of judgment and demands for judgment that allow businesses to roll over, or litigants that have been sued to roll over, concede that they were wrong, and offer to fix the problem. That is why under the State code it is easy to handle claims for attorney's fees. You file the offer or the demand, and then you can take them before the judge and see if they get anything over what you have offered.
Perhaps that type of procedure could be employed in assessing attorney's fees. But the way it is now, there are a lot of people—businesses that are getting hurt by a small number of individuals. And all of my clients, although they have fixed the problem, all of them have had to pay some sum of money that usually greatly exceeded the amount of effort and work that was in the case. Thank you.
Mr. CANADY. Thank you, Mr. Fields.
[The prepared statement of Mr. Fields follows:]
| Joseph R. Fields, Jr., P.A., |
| West Palm Beach, FL, May 16, 2000. |
Hon. CHARLES T. CANADY,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
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RE: H.R. 3290, ADA Notification Act
DEAR CONGRESSMAN CANADY: I write this letter to supplement the oral presentation that I will be giving at the upcoming hearing before your committee on May 18, 2000.
I write this letter to express to you my support for amending the American's with Disabilities Act (ADA) in regards to providing notification to businesses and property owners prior to filing suit.
Although I consider myself to be an advocate for the disabled and other persons who have been historically discriminated against, I find it repulsive that the ADA has been used in the South Florida area as a conduit for lawyers to recoup hundreds of thousands of dollars in attorneys fees under the guise of advocating for the disabled.
Over the past two years, south Florida Federal and State Courts have been inundated with lawsuits alleging ADA violations. The primary target seems to be small businesses who can ill afford to fight and who eventually are forced to pay their adversaries fees. I have been representing quite a few small businesses in the south Florida area who, without any prior notice, find themselves faced with not only expensive modifications to their businesses, but then are faced with a demand for thousands of dollars in attorneys fees when, in most cases, very little work has been done on the case by the Plaintiff's attorneys.
Last year, I represented a small business owner whose tenant sells baseball cards in the Lake Worth, Florida area. Upon correcting the deficiencies noted in the Plaintiff's complaint, he was then met with a demand for $4,500.00 in attorneys fees and costs. In comparing the work that had been done by the attorneys representing the Plaintiff with the other 30 to 40 lawsuits that were filed at about the same time, it became a apparent to me that forms were being used over and over again and that there was nowhere near $4,500.00 worth of work in the case. This example is one of many that have occurred in the South Florida area. Because of the Federal Court's position that attorneys fees are recoverable for arguing entitlement to and the amount of attorneys fees, my clients have often times found themselves fighting an uphill battle. To pay me to fight and attend a hearing on attorneys fees, that will result in the same out of pocket expense to my clients, often times makes no sense.
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I support requiring notification to be given to certain businesses, the owners of which, have usually never heard of the ADA and/or are unaware of its provisions. The local governing authorities that are responsible for issuing occupational permits do very little to ensure compliance with either the ADA or the State of Florida's statewide disability laws. For that reason, almost everyone of my clients, upon being sued, discovered that the issuance of a certificate of occupancy does not indicate that the property is compliant. Furthermore, because of the limited educational efforts associated with ADA compliance/awareness, many business owners are not aware that their properties are non-compliant. New businesses are often times are allowed to open without technically being in compliance with disability laws.
It is my belief that the Americans with Disabilities Act is a great law, one of the finest anti- discrimination laws our country has ever passed. However, I believe it is time to fine tune this law such that a requirement of prior warning or notification exists for certain businesses. However, the notification requirement should not prevent the pursuit of class action cases against large companies that have multiple offices or franchises within our country and usually refuse to make company/franchise wide changes without being sued on a class wide basis.
I look forward to expressing these thoughts and others to our nation at the upcoming congressional hearing.
cc: Senator Mark Foley
Sincerely,
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CC:
Senator Mark Foley.
Mr. CANADY: I apologize to the other members of the panel, but we again have a series of votes. The good news is that this is a series of two votes, so this should not keep us long. What we will do is recess the subcommittee now. We will reconvene at 1:30. So the subcommittee will reconvene at 1:30.
[Recess.]
Mr. CANADY. The subcommittee will be in order.
We will now proceed with Mr. Levy's testimony.
STATEMENT OF ANDREW LEVY, ATTORNEY, BALTIMORE, MD
Mr. LEVY. Mr. Chairman, members of the subcommittee, thank you for giving me the opportunity to testify on this bill. My name is Andrew Levy. I am a practicing trial lawyer from Baltimore, Maryland. For nearly 20 years I have represented a wide range of clients, individuals, businesses large and small, plaintiffs and defendants in a variety of matters. Because I myself use a wheelchair as a result of a central nervous system infection I got when I was in my first semester of law school, the ADA has been an important part of my practice since it was passed 10 years ago.
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I am here to tell you that the proposed amendment will take a weak law and make it weaker. It will eliminate much of the incentive businesses have to comply with the law voluntarily. It will give the overwhelming advantage to those who choose to violate the law. The characters Mr. Eastwood plays in his movies would never tolerate such a situation, and this Congress should not either.
In the brief time I have, I would like to try to make three points. First, there is a premise underlying this bill that I do not understand. It is the idea that people need a special invitation to comply with the law passed by the Congress and signed by the President. July will be 10 years since the ADA became law. Anyone who truly cares about accessibility has had ample opportunity to find out what the law requires and how to comply with it.
The State of Maryland is not required to send me a letter before it stops my car for speeding. There is no reason that someone who is violating the ADA should need a letter either.
Not only is ignorance of the law no excuse, but in the case of the ADA, there is no excuse for being ignorant of the law. Who by now has not heard of the ADA? It is as clear as can be that places with steps and bathroom doors too narrow for a wheelchair to pass are not accessible. You shouldn't need a letter informing you of that fact. Also there is an abundance of free technical assistance available to the public on how to comply with title III. If there is a lack of understanding in the business community, the answer is to beef up the government's technical assistance activities, not to water down the rights of people with disabilities.
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The fact is that the ADA already has several provisions that protect small businesses from unreasonable requirements.
Title III, for example, does not require any action with respect to existing buildings that would cause an undue burden or that is not readily achievable. That is language directly from the text of the statute. It was put there to protect small businesses from having to do unreasonable things.
The second point: to understand why this seemingly modest notification provision would do such harm, you also need to understand a very unusual aspect of the ADA. The dirty little secret of title III of the ADA is that it is actually a very weak law. It is the only Federal law that I know of that provides no damages when you break it. You can intentionally—intentionally, knowingly, violate it for years, and you cannot be held responsible for damages. Since there is no risk that a violator has to pay damages, the effect of requiring notice is to encourage people to do nothing until they get a letter. Thus, this amendment, if passed, would effectively create a blanket nationwide exemption to the ADA, and a law without sanctions is no law at all.
I take the statements of the people who testified before me that they believe in this law at face value, and I do not question their intentions. But the fact is that this amendment will make a law that is already difficult to enforce and that is widely ignored, even more difficult to enforce and even more widely ignored.
The third point: this amendment reduces the only incentive to the private bar to take on ADA cases. Congress recognized that the Federal Government itself did not have the resources to enforce the civil rights laws on its own. The ADA, like other civil rights laws, relies primarily on private individuals for enforcement. To encourage private lawyers to take these cases, Congress provided that if you bring a case and if you win, if it has merit, you can ask the judge to award you a reasonable fee.
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Listening to some of the witnesses earlier, it made it sound like all the lawyer needs to do is file a lawsuit and then send the defendant a bill. Now that does not happen in any universe that I have ever been in. I have to file a lawsuit, I have to win, and then I have to send a fee petition to the judge.
I cannot speak for Federal judges maybe in other parts of the country, but the Federal judges who I have the honor of practicing before take these fee petitions very seriously and they are not just going around handing out money.
Just as cutting a horse's hay with straw eventually kills the horse, if you water down the enforcement provisions of the ADA, you will eventually kill the ADA. And you cannot pretend otherwise. Do not make this law rely on charity for its enforcement. If people take the cases, ensure that they are entitled to a reasonable fee.
I am positive that the passage of this amendment will turn back the clock more than a decade and continue the historic exclusion of people with disabilities from the mainstream of society. To this Congress' shame.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you very much.
[The prepared statement of Mr. Levy follows:]
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PREPARED STATEMENT OF ANDREW LEVY, ATTORNEY, BALTIMORE, MD
Mr. Chairman, and members of the Subcommittee:
Thank you for giving me the opportunity to testify on HR 3590, the ADA Notification Act.
My name is Andrew D. Levy. I am a practicing trial lawyer based in Baltimore, Maryland. For nearly twenty years I have represented a wide range of individuals and businesses—large and small, plaintiffs and defendants—in a variety of matters. Because I myself use a wheelchair as a result of a central nervous system infection I developed during my first semester of law school, ADA litigation has been an important part of my practice since the passage of the Act ten years ago.
I am here to tell you that the proposed amendment will make enforcement of the ADA cumbersome, much more expensive, and from a practical standpoint, frequently impossible. Worse, it will eliminate much of the existing incentive businesses have to attempt to comply with the law voluntarily. The net result of this is that there will be much less voluntary compliance with the law's requirement that places of public accommodation be accessible to all. The proposed amendment will give the overwhelming advantage to those who would choose to violate the law, and in most cases will allow them to violate the law with impunity. Mr. Eastwood's screen alter egos would never have tolerated such an outrageous situation, and this Congress shouldn't either.
To understand why this seemingly modest notification provision would do such harm one needs to understand a very unusual aspect of title III of the ADA: virtually alone among federal statutes, the law currently provides no damages for its violation. With respect to public accommodations there is only one true incentive built in to the law: the desire not to get sued and having to pay attorney's fees. If the proposed amendment becomes law, however, people will not have to even consider complying with the law until (and unless) they get a letter. Since there is no risk that they will have to pay damages as a result of not complying, the effect of prohibiting lawsuits unless they get 90 days notice is to allow—indeed, encourage—them to do nothing until they get a letter. Thus, the proposed amendment effectively creates a blanket, nationwide exemption to the ADA.
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Consider the practical consequences of adding a notice requirement to two statutes, one with a provision for damages, and one without. A statute providing for damages theoretically allows a person to wait to comply until he gets notice—but he would do so at his own risk, for if he is eventually sued, he faces the prospect of paying damages for his entire period of noncompliance (these laws typically provide that damages begin to accrue at the time the violation occurs). In effect, he would be sitting there asking himself, in those words Clint Eastwood made so famous: ''Do I feel lucky?'' In a statute that requires violators to pay damages a rational actor does not wait until he gets notice before investigating what the law requires, and complying with it.
On the other hand, if this amendment is passed, the combination of notice and no damages would cause a rational actor to act in precisely the opposite way. Since there are no damages for a violation, and he can't be sued until he gets notice, the rational actor needn't bother to ascertain the requirements of the ADA until he gets a letter. Once he gets a letter—if he gets one—he can comply without risking any sanction for all of the time he waited to comply. A law without sanctions for its violations is no law at all.
There is another important consideration, and it relates to the enforcement mechanism Congress built in to the ADA. Congress recognized that the federal government does not have the resources to enforce the civil rights laws entirely on its own. While the Department of Justice plays an important role, the ADA, like other civil rights statutes, relies primarily on private individuals for its enforcement. Congress created incentives for private individuals—acting as ''private attorneys general''—to enforce the law. Usually these incentives take two forms: damages—both compensatory and punitive—that a wronged individual can obtain for the violation of his statutory rights, and the payment of the plaintiff's attorneys fees if he is successful. In the case of title III, however, Congress chose not to allow damages to private parties for violations.
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Although Congress did not provide for damages, it understood that if it was going to rely on private parties to enforce the ADA, it had to have some provision encouraging the private bar to take the cases. As a result, Congress provided that a successful plaintiff could ask the Court to order the defendant to pay him a reasonable attorney's fee.
Keep in mind, that there are important limitations on payment of attorney's fees. First, plaintiffs' attorneys are only entitled to be paid if they win. Thus, there is no incentive for bringing frivolous lawsuits, because if you do, you're going to end up having worked for free. And, federal court rules provide that the defendant can recover its own attorney's fees if the plaintiff's lawsuit was frivolous or brought in bad faith.
Second, even if you win, you are only entitled to a fee that the judge finds is ''reasonable''—usually calculated by the lawyer's normal hourly rate (that is, the rate that his private clients in non civil rights cases pay)—multiplied by the number of hours the judge finds the case reasonably should have taken to litigate.
It's not a complicated arrangement nor is it a system calculated to make anyone rich. It's just basic economics. The greater the incentive, the greater the participation. Lawyers who bring ADA cases already assume the risk that they will lose and be paid nothing, with their only upside being that they simply get their normal hourly rate if they win. By making it even more difficult to get paid for enforcing the ADA, the amendment builds into the statute more disincentives to enforcement, resulting in less compliance and accessibility. If Congress further reduces those incentives that do exist, the result will inevitably be less enforcement of the ADA. Just as cutting a horse's hay with straw eventually kills the horse, continuing to water down the incentives for enforcing the ADA will eventually kill the ADA.
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There is a premise underlying this bill that I do not understand. It is the idea that people need a special invitation to comply with a law passed by Congress and signed by the President—in this case, a Republican President. July will be ten years since the ADA was passed. Anyone who truly cares about accessibility has had ample opportunity to find out what the law requires and to conform their conduct to the law. The State of Maryland is not required to send me a letter informing me that I am speeding before its stops my car. There is no reason that someone who is violating the ADA should need notice either. Not only is ignorance of law no excuse, but in the case of the ADA there is no excuse for being ignorant of the law. Who by now has not heard of the ADA?
As with any law, there may be occasional ambiguities, but most of the violations I see are not ambiguous. It is as clear as can be that places with steps to get in, and bathrooms too narrow for a wheelchair to pass are not accessible. You shouldn't need a letter informing you of the obvious.
Also, there is an abundance of free technical assistance available to the public on how to comply with title III's requirements. The ADA itself expressly requires the Department of Justice, in consultation with other agencies, to assist small and large businesses alike in understanding title III's requirements. The Department of Justice has developed a large number of publications on title III's requirements, including a compliance manual, and it maintains a telephone information line to respond to public inquiries and operates a web site with a full complement of technical assistance materials. If there is a lack of understanding within the business community about the ADA's requirements, which is leading to non-compliance, the answer is to beef up the Government's technical assistance activities—not to diminish the rights of persons with disabilities through this notice requirement.
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I am also genuinely confused as to how the notice mandated by this bill would have changed Mr. Eastwood's situation. The assumption seems to be that had he gotten a letter notifying him of the problems he would have quickly and graciously made the changes the plaintiff sought. But, because he got a summons instead, he was forced to spend several years defending the case, incurring hundreds of thousands of dollars of attorney's fees. That's nonsense. Nothing stopped Mr. Eastwood from building a ramp or widening his bathroom doors at anytime during the lawsuit, including the day he got served with the complaint. Had he done so, plaintiff's fees would have been in the hundreds of dollars, rather than the hundreds of thousands. Are we to seriously believe that had he rece1ived a letter instead of a summons he would have voluntarily complied immediately? That seems quite unlikely given the manner in which he defended the lawsuit.
The fees could only have grown to the size they did because of his refusal to comply with the law voluntarily and the scorched earth manner in which his lawyer conducted the defense. I've been trying cases for a long time, and I can't ever recall amassing a bill the size that Mr. Eastwood is complaining about in a relatively simple ADA case. That Mr. Eastwood's opponent did so suggests that Mr. Eastwood vigorously contested his obligation to comply with the ADA. Indeed, I understand that Mr. Eastwood's counsel may have engaged in a great deal of pre-trial maneuvering, and that opportunities to settle the case at an early stage were ignored. This was certainly their right. But defending a case in that manner has consequences, and one of them is that if you lose you end up with a big bill. That is a function of Mr. Eastwood's conduct, not some flaw in the ADA.
Particularly disappointing is the claim that this amendment is intended to help small businesses. The fact is, the ADA already has several provisions that protect small businesses from unreasonable requirements. title III, for example does not require any action with respect to existing buildings in that would cause an ''undue burden'' or that is not ''readily achievable.''
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It is also the case that the proposed notice requirement would have a particularly onerous impact where the violations pose a threat to one's health or deny access to critical services. Persons with disabilities must be able to invoke the jurisdiction of the courts to ensure their access to doctors' offices, hospitals and other medical services, and in some cases, requiring a 90-day waiting period may place their health in jeopardy. Likewise, individuals with disabilities should not be required to wait 90 days before resorting to the enforcement power of the courts to ensure access to critical educational or financial services (e.g., insurance and mortgage services). Indeed, this bill would effectively rob individuals of their right to seek a preliminary injunction (which the courts will grant when there is the risk of irreparable harm if the court does not act promptly). Depending on the type of violation involved, moreover, and the specific circumstances of the aggrieved party, many lawyers routinely provide notice in an effort to settle title III actions voluntarily. In many cases, however (such as where there is a need for prompt injunctive relief), there is a need to dispense with longs delays before proceeding to court. This option should not be denied in situations where the attorneys has determined that speed is of the essence.
The specifics of the proposed notice provision are troublesome on a technical level. For example, the bill requires a detailed description of the alleged violation. But a plaintiff often does not know the full extent of the violations until after he files suit, nor could he, since the defendant controls access to the premises. It is the defendant who is in the best position to know the extent of the problem, not the plaintiff.
Take the example of a hotel. If there are steps to get in, all a wheelchair user knows is that he can't get in. He obviously can't know anything about other violations (although he might suspect that they exist). Even if he gets in, he will likely only know the specifics of one room—the one he was in. As written, however, the law would prohibit a lawsuit to correct anything but the steps, or that one room. The law thus encourages piecemeal litigation, which wastes everybody's time, including the judge's and the defendant's. Courts have an interest in resolving all related matters at the same time. Once at least one violation exists, a plaintiff ought to be entitled to challenge all violations that he finds exist at the same location.
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Similarly, as written, the amendment not only requires ninety-days notice, but it requires the plaintiff to allege that after 90 days the problem has not been corrected, without providing the plaintiff any mechanism for finding this out. The defendant, who is obviously in the best position to know the situation, has no obligation under this law to tell the plaintiff anything. Moreover, the defendant is given the benefit of the doubt under the law, even though as recently as 90 days ago he was in violation of a law that has already been on the books for ten years. Why should such a defendant be given the benefit of the doubt? Why shouldn't the defendant have the burden of demonstrating compliance. Unless what youre trying to do is stop people from disabilities from enforcing the ADA?
I do not question the motives of the people who are supporting this amendment. But I am positive that its passage will turn back the clock more than a decade, and continue the historic exclusion of people with disabilities from the mainstream of society.
Thank you.
Mr. CANADY. Mr. Bell.
STATEMENT OF CHRISTOPHER G. BELL, ATTORNEY, MINNEAPOLIS, MN
Mr. BELL. Thank you very much, Mr. Chairman, members of the subcommittee. I am privileged to be here to provide my support——
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Mr. CANADY. Mr. Bell, if we could have the microphone pulled a little closer there. Thank you.
Mr. BELL. In addition to my written testimony, Mr. Chairman, I did fax over today to the subcommittee's office a printout of the docket of the Southern District of Florida, listing the cases filed by four ADA enforcement groups, just to give the committee some statistics, and I would ask that that be included in the record along with my testimony.
Mr. CANADY. Without objection, it will be.
Mr. BELL: I would like to use my time to try to bridge some of these issues, because it appears to me, much as when the ADA was debated 10 and 11 years ago in Congress, we have voices and ideas that are passing like ships in the night.
What we are talking about here is compliance. Contrary to some of the views previously expressed, most compliance, whether it is with the ADA or another Federal law or a State law, with any law, with speed limits on the roads, most compliance is voluntary. We do not have enough cops to catch all the speeders. We do not have enough people at the Department of Justice to litigate all the ADA cases or at the EEOC. Most compliance is voluntary.
The number of lawsuits that are filed is, although large to a certain extent, is a mere drop in the bucket as compared to the number of employers there are and as compared to the number of places of public accommodations and commercial facilities. So the real question is what enhances compliance? Because that is the goal. Litigation is not the goal. Litigation, Mr. Chairman, is the sport of kings and there are very few kings or queens left in this country. It is extraordinarily expensive.
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So I support an idea that says let us give businesses notice of specific violations. Now, the counter is the ADA has been around for 10 years. Everybody should know it exists. Well, that is true enough. But how many people can say how many inches off the finished floor a urinal must be to be accessible? How many people can say how many inches wide the parking space must be? That is not something that most business owners are going to know, and they are not even going to readily know where to turn.
So we are talking about notice, we are talking about not informing them that, hey, there is a Federal law out there, but what we are talking about here are the specific barriers at your place of business which you need to address. And I do believe that promotes compliance and does not weaken the law.
Now, there are some issues that witnesses today have raised that I think are legitimate issues that you should consider in drafting this legislation; for example, the issue of preliminary injunctive relief or temporary restraining orders. I think action seeking that kind of relief certainly should be exempted from any notice requirement. There is certainly a legitimate issue about class actions. How do you give class notices of specific violations in a multifacility company? And I think the simple answer to that is that you provide notice more generally and say it is a class notice.
And, yes, some businesses will refuse to comply. Some will refuse to comply, quote-unquote, because there are real issues under the ADA. It is not, I submit, all that simple to comply with many of these barrier removal obligations. Yes, there is a defense for not removing existing architectural barriers if it is not readily achievable. But if you read the statute and the regulations, you will find that those terms are not very well defined. And some of the changes that I have had clients receive demands for are extremely onerous and the government's view, or the plaintiff's view is, well, you are a big company, you have lots of money, so it is always readily achievable.
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So there are a lot of issues out there that we are not going to solve by this particular bill. But I think notice of specific violations, specifically for small businesspeople, is something that will help compliance and will reduce what I refer to as these ADA ''drive-by'' lawsuits. They are spreading in the country and I think we are only seeing the tip of the iceberg.
Mr. CANADY. Thank you, Mr. Bell.
[The prepared statement of Mr. Bell follows:]
PREPARED STATEMENT OF CHRISTOPHER G. BELL, ATTORNEY, MINNEAPOLIS, MN
My name is Christopher G. Bell. I am the managing partner of the Minneapolis office of Jackson Lewis Schnitzler and Krupman. I would like to thank the chairman and members of the subcommittee for the opportunity to testify in support of HR 3590, the ADA notification act.
I am in support of this legislation because I believe it furthers the rights of both owners and operators of public accommodations or commercial facilities as well as people with disabilities. I view the legislation from several perspectives. I have been blind for over thirty years and an attorney for over twenty-two years. As a blind person, I've always been interested in disability rights. I was privileged to work as the executive assistant to Evan J. Kemp Jr., chairman of the U.S. Equal Employment Opportunity Commission, who was a true champion of disability rights. Through Evan, I became involved in the legislative development of the ADA working with both House and Senate staff and with staff in the Bush White House. Subsequent to the ADA's enactment on July 26, 1990, I was privileged to be placed in charge of developing the EEOC's ADA Title I employment regulations and technical assistance manual.
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I left the federal government in January 1993 to join Jackson Lewis Schnitzler and Krupman, a national management labor and employment law firm. From the beginning, my practice has focused on disability management and ADA compliance. Much of my work has been in the area of title III of the ADA. As you know, title III of the ADA requires that places of public accommodations and commercial facilities must meet certain architectural and communication accessibility standards as well as prohibiting disability discrimination. I have advised many clients over the years on compliance with these accessibility standards. I also have defended clients in over ten ADA title III lawsuits.
Unfortunately, what I call ADA drive-by suits are all too common. Typically, the suits are filed by a small group of attorneys on behalf of an ''ADA enforcement group'' and one or more members of the group. Group members or an individual client goes from store to store, in strip mall after strip mall, and file a lawsuit against each place where the individual found some problem with access. As you know, these suits are quite common in South Florida. The volume of this litigation in South Florida is alarming. The four major ''ADA enforcement groups''—Access Now, Alliance for the ADA, Advocates for the Disabled, and Citizens Concerned About Disability—have filed at least 112 lawsuits since January 1, 2000. I am providing the Subcommittee with a copy of the docket sheet from the U.S. District Court for the Southern District of Florida listing suits filed by these four groups over the last few years.
ADA drive by litigation is not limited to Florida. One attorney developed a cottage industry based upon a single client who went door-to-door in Hawaii suing public accommodations. He soon saw the grass was greener in California because monetary damages are available under that state's laws on access. So, he moved to the San Francisco area and is doing the same thing. Similar ADA enforcement groups exist in both Northern and Southern California.
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Sometimes, but certainly not always, these suits are frivolous or even harassing. In one instance, we defended a client where the only allegation of inaccessibility was that the toilet paper dispenser in the men's room was an inch off the accessibility standards. Of course, had a HR 3590 been the law then, notification would have had to have been given to the owner of the establishment. The owner presumably would have taken a screwdriver and lowered the toilet paper dispenser by an inch rather than face a lawsuit in federal court. The owner, however, had no such opportunity since the first notice he had of this ''violation'' of the ADA was the receipt of the complaint and summons.
Another example is Wendy Garcia. She and her husband own a small building in Miami wherein she and her husband have a small law firm. They rent office space to several other attorneys. One of the lawyer tenants represented a woman in divorce proceedings. After the divorce, the women's former husband and an ''ADA Enforcement group'sued both the Garcias and her tenant for an alleged ADA violation.
The purpose of the ADA is to provide equal access to persons with disabilities; not to line the pockets of lawyers. It is compliance the law seeks to achieve, not more litigation with which to clog the already over-burdened federal court system. This is evident from the law's promotion of technical assistance. I was privileged to work with Sen. Dole's staff in drafting section 506 of the ADA which required appropriate federal agencies to provide technical assistance and publish technical assistance manuals for the purpose of informing persons with disabilities and those who must comply with the ADA of their rights and obligations. It is consistent with the provisions of Title I of the ADA which requires that an administrative charge must be filed with the EEOC or a state fair employment agency and, if a violation is found, efforts at conciliation must be attempted, prior to the commencement of litigation.
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It is hard for me to imagine that people in the disability rights movement would be opposed to this legislation. I can understand there may be a concern that this legislation would open up the ADA to substantive change. That clearly is not what this bill does, nor is it the intent of the bill's authors to do so. Rather, the purpose of HR 3590 is to provide for notice of potential accessibility defects and the opportunity to correct them. The bill simply promotes a common sense due process. By so doing, it likely will enhance compliance while reducing the amount of lawsuits currently being filed. The only losers will be those few attorneys who are placing their personal wealth in front of disability rights. These attorneys may argue they are serving the public service by acting as ''private attorneys general.'' A true private attorney general, however, would not act the way these attorneys do. A true private attorney general, and, indeed, most civil trial attorneys, first make a demand for relief upon a potential defendant before filing a law suit. This is because the true ''private attorney general'' is seeking to promote compliance with the law without litigation where possible. Having been warned, the entity which chooses not to resolve the accessibility issue then is subject to the threat of litigation
I am not sure there is a better means of promoting compliance while reducing litigation. Although I have not checked, I doubt whether lawyers who file drive by suits are subject to sanctions for violating any ethics rules. Second, avoiding the courthouse is not achieved by relying on mechanisms in the Federal Rules of Civil Procedure such as Rule 11 regarding sanctions for frivolous litigation and Rule 68 regarding making an offer of judgement to cut off liability or costs. These mechanisms do not promote ADA compliance and are only available after litigation has started and attorney's fees have begun to accumulate.
I also would urge the committee to bear in mind that there may be very lawful reasons why an entity may choose not to remove the barrier about which it has been notified. For example, the owner of a small restaurant may choose not to widen the restaurant's front doorway because to do so would require moving a load bearing pillar. Although the doorway may not be wide enough to permit passage of a person using a wheelchair, the failure to move a load bearing pillar would not violate the ADA. In this circumstance, the restaurant might be obligated, for example, to provide curbside service of a carry-out meal to a wheelchair user, even if it does not ordinarily provide for carry-out service. I mention this example only to emphasize that the failure to remove an asserted barrier after receiving notice should not be interpreted by this committee necessarily as indicating that the covered entity is intentionally violating the ADA. The public accommodation may or may not have a lawful reason for refusing to remove a barrier.
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Of course, the bill will not solve completely the problem of ADA drive-by lawsuits. In states such as California, where monetary damages are available to persons with disabilities who cannot gain access to a facility because of architectural barriers, simply removing the barrier within the ninety-day period will not absolve the tenant or owner of all potential liability under state law. Nor will HR 3590 help the owner of a premises avoid liability if a person with a disability is injured on the property due to a lack of accessibility. In these circumstances, litigation and monetary liability will not be avoided simply by removing the architectural barriers at issue.
I would recommend several changes to strengthen the bill. As currently written, it is not clear that the notice contemplated must be in writing. This is because proposed Section 308(a)(3)(i) permits notice in person or by registered mail. In person notification could mean verbal notification. It is important that the formal notice be in writing. It also is important to clarify that the written notice should be comprehensive of the claims the plaintiff intends to bring. Otherwise, the plaintiff could essentially evade the purposes of the bill by notifying the potential defendant of a single barrier, wait 90 days and then bring suit regarding 20 other barriers not mentioned in the notice. The plaintiff's suit should be limited to those barriers of which the plaintiff could reasonably have been aware and provided notice to the defendant. For example, if a person using a wheelchair cannot gain access to a store because of a flight of steps, he or she reasonably could not be aware of access problems within the store. Notice would need to be given regarding the lack of an accessible entrance. If the landlord or tenant do not provide an accessible entrance within ninety days, the person using the wheelchair could file suit about the lack of a ramp and any other barriers which may be inside. However, if a compliant ramp is constructed within ninety days, no suit can be filed. If the plaintiff then enters the public accommodation and finds other barriers, s/he should give notice regarding those barriers. If not cured, the plaintiff could bring suit on those barriers and any other barriers found during discovery without having to further notify defendants. Secondly, I recommend the notice provision apply to state law access claims as well as ADA claims. Failure to expressly require notification of state law access claims will permit a plaintiff to circumvent the notification process entirely by bringing an access suit under state law. The plaintiff could provide the defendant with a copy of the complaint by registered mail, assert this was the required notice, then amend the complaint to add the ADA claim, entitling the plaintiff to attorney's fees thereby completely evading the purposes of the ADA Notification Act. Even with these few changes, HR 3590 will not change aspects of the ADA which could use legislative clarification. For example, the ADA does not adequately or clearly define when removing a barrier in an existing facility is not ''readily achievable.'' Currently, the statutory definition of this term requires a case-by-case approach. This permits plaintiffs and the government to argue that substantial and expensive barrier removal may be required of larger entities because of their greater financial resources even if it costs tens of thousands of dollars and takes much effort.
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HR 3590, however, does not make any substantive legal change to the ADA. It does not reduce in any way or to any degree the substantive rights of persons with disabilities. I whole heartedly support HR 3590 and hope that it becomes law this session. Thank you for the opportunity to present my views to the subcommittee.
Mr. CANADY. Mr. Shotz.
STATEMENT OF RICK A. SHOTZ, ADA CONSULTING ASSOCIATES, FT. LAUDERDALE, FL
Mr. SHOTZ. Thank you, Mr. Chairman. And I thank the members of the committee for the opportunity to speak today.
I want to start by trying to put a couple of things that you have heard today into perspective. I think some things are being said that do not have the background of surrounding information. You have been hearing today a little bit about Action Mobility wheelchair store located in Lake Worth, Florida. I am the ADA consultant for the city of Lake Worth. I have close personal knowledge of that store and the experience they went through.
I will never forget when I first spoke to the owner of the store about the lawsuit they experienced and I was called a, ''ADA vigilante,'' because I was seeking, as a consultant for the city, compliance from the store.
Their parking lot is half paved and half gravel. And I have tried to park on the gravel part of their lot and push my wheelchair across it. I am a former wheelchair racer but I could not push across that parking lot.
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In the local newspaper, the owners of that store acknowledged that they have, including themselves, six employees that are disabled and qualified to park in accessible parking spaces. After the lawsuit, they still have just two parking spaces for people who are disabled. Six people work there. How about their customers? I guess they don't have a reason to have to park.
When that lawsuit was settled, I visited their store and pointed out to the owner the other ADA violations missed by the lawyer—the inaccessible entrance door, the post in front of the power door opener button, the bathroom that you could not use if you were in a wheelchair—and I gave them 30 days to fix those violations before they found the city after them for it. I guess that is notice. But the owners of that store for 3 consecutive years have advertised in the yellow pages that they are ADA consultants. They offer that service to the public. Mrs. Batelaan even acknowledged she knew she was in violation of the law.
I reviewed photos of Mr. Eastwood's Mission Ranch, and on the flight here today I was able to read the entire inspection report by the plaintiff's consultant in that lawsuit. It is a long report. All it said are the violations; not violations of an old building that people want removed, but the new steps that got built so that people in wheelchairs could not get up, because with the steps came no ramp; the restroom removed from the building to enlarge the public space, or the restrooms being placed over 200 feet away from that building. If you are not disabled, restrooms are just around the corner.
Mr. Eastwood said that it was a year from when the person visited his ranch or his hotel before he got sued. He did not mention to you that he got a letter after 3 months about the violations. That is called notice, I believe. He did not tell you about the certified letter that was sent to him that he refused to sign for and got returned to the plaintiff's attorney. But this bill says ''certified mail.'' I guess if you do not sign the slip, you did not get noticed.
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There have been a lot of lawsuits in Florida. A lot of people who are disabled live in Florida. We have a flat State. We do not have snow and we do not have ice. We have probably one of the oldest populations on average in the country. What State should be more accessible than a State where people who are disabled choose to live because of the terrain and because of the climate? Yes, I imagine there have been a thousand lawsuits filed. And yet at this time, probably less than one building in 10 that is a public accommodation is compliant with the ADA.
Mr. Foley is concerned over all the lawsuits against businesses in his district and over the fees that were charged by the attorneys. Not one of those lawsuits was dismissed as being frivolous. Every single lawsuit filed in his district has had to be settled with correction of the barriers in those stores. This is not a question of somebody coming by and just making up lawsuits. Does a 12-year-old child without a pool need access to a pool store? No. But I do. And I thank that 12-year-old child for letting me get into that store because when I am working in Lake Worth, I can stop there for supplies on the way home if I want to.
Mr. Brady, the lawyer who sued Action Mobility charged them the outrageous fee of $1,600 for that lawsuit. That cost more than fixing the parking lot. It costs more than fixing the parking lot and the door and the bathroom. But that was a lawsuit against a wheelchair store owned by self-represented ADA consultants. Mr. Brady, at current fees in south Florida, charged for less than 6 hours of work. He spent more than that time on the airplane getting from his office in New Jersey to Florida for the inspection. That does not sound like extortion to me, as was spoken of before.
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As you have listened to witnesses today, you will notice that the people with problems with being sued have been from Florida and California. The folks in California are not being sued for the ADA; they are being sued for the Unruh Civil Rights Act, a law passed in 1970 in California. Although it has a 30-year history, it is still being violated. A law which had a bill much like this bill before the assembly in California, and defeated in committee last week by a 10 to 5 vote. California will keep the Unruh Act without notice requirements, as it has been by the vote of their assembly.
As you have heard many times today, the ADA is 10 years old. When this bill was first proposed by Congressmen Foley and Shaw, I met with them. I said to them, and I am saying to you, this law is not broken and it does not need to get fixed. The backlash against this law is minimal compared to the backlash against the 1964 Civil Rights Act. That law required the National Guard to help enforce it. All we need is the right to access to the courts.
This bill on the face appears very simple but the devil is in the details, the details of millions of businesses not in compliance; the details of an average of 30 violations per business. Who has the time here to address notice to 200,000, 2 million, or 20 million violations?
Because I have run out of my time I will ask one thing of you, which is to let me paint a story with words just to give you an idea of what this is really all about.
Picture a quadriplegic woman going to a restaurant to meet her friends for lunch or dinner. When she meets them there, she finds that she cannot get in the front door because it is not wide enough for her wheelchair, and she finds herself using the back door and going in through the kitchen. They sit down to have their meal. She needs to use the bathroom. She finds she cannot get into the toilet stall. Embarrassed, she returns to her friends and says she has to leave.
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The next day, she makes some phone calls and finds a lawyer. But this has happened after H.R. 3590 becomes law, and the lawyer says to her: We have to give notice, 90 days, and do an inspection to see if the work has been done. I want $1,000 retainer to do this for you. And her decision is does she have a $1,000 to pay, or does she eat this month and next month? And so she couldn't afford the lawyer.
She goes to the library instead, sits down at the computer, which she can talk to because she can't type, finds the DOJ ADA Web site and sees the specifications so she can identify the violations at the restaurant. But she cannot hold a tape measure to measure the size of the door, she cannot get in the bathroom to see what is wrong besides the door being too narrow. What does she do? She sends a letter to them of a front door that is too narrow and a bathroom door, and waits 90 days. If they fix it, then go back and try going in the bathroom to see what is wrong there. Send a letter again, wait 90 more days. Once they have fixed the stall, go back to find the toilet is the wrong height and there are no grab bars. And a letter and 90 days again? Maybe in a year she would find some voluntary compliance all at her own expense and her own time. No lawyer to help her, no compensation, nothing.
This is what this bill will do to people. Thank you for your time.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Shotz follows:]
PREPARED STATEMENT OF RICK A. SHOTZ, ADA CONSULTING ASSOCIATES, FT. LAUDERDALE, FL
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Members of the Constitution Subcommittee of the Judiciary Committee of the United States House of Representatives:
My name is Fred Shotz. I have asked to speak before this subcommittee so that I can help you to understand why the ADA Notification Act is not needed to control legal fees and why this Act would harm people with disabilities. I also would like to put into perspective the testimony you are hearing from people who claim that they have been unfairly sued for violations of the ADA. I became disabled after being hit by a hit and run driver while walking in 1969. I began working on disability law in 1982. I currently own an ADA consulting company. I am also the president of the Association of Disability Advocates and the treasurer of the Florida Paraplegic Association.
As the ADA consultant for the City of Lake Worth, where Action Mobility is located, I have first hand knowledge of this store and it's owners. I will never forget being called an ''ADA vigilante'' by this store's owner when I first spoke with him about the lawsuit he had faced. This store's primary clientele is people with disabilities. The owner has told the press that including him and his wife there are a total of six people working there who are disabled. Yet he had no parking spaces for people with disabilities. I have experienced parking on the gravel parking lot at this store and trying to get across the gravel in my wheelchair. Even now, after the lawsuit, this store has only 2 parking spaces for people with disabilities. That is for the 6 employees with disabilities and the customers with disabilities who come in daily. The owners of this store knew what the ADA required. Providing them with 90 days notice would not have increased their knowledge. Such notice would simply have allowed them to avoid the consequences for their failure to obey what has been the law of the land for almost 10 years.
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After the lawsuit was settled, I visited this store. I found that the plaintiff attorney had missed the ADA violations at the entrance door and the ADA violations in the restroom. The power door opener control was behind a post where many people using wheelchairs could not reach it. The restroom lacked grab bars by the toilet and the sink could not be used by a person sitting in a wheelchair. This is a store that is owned by people who advertise in the Yellow Pages that they are ADA consultants. Calling the suit against them unfair is like saying it is unfair to charge a C.P.A. for not filing his taxes.
There has been a great deal of talk about the unfair lawsuit against Mr. Eastwood's Mission Ranch. Mr. Eastwood did receive written notice more than a year before the lawsuit against his resort was filed. The lawyers even tried to give him notice a second time by certified mail. The certified mail was returned to the sender as no one would accept it. I have reviewed photos of this facility and I read the ADA consultant report written by the plaintiff's expert witness. I wish we were meeting at this resort rather than here in Washington. If we were there I could take all of you on a tour of this property and you could see for yourself the numerous barriers, still there after three years of litigation, that keep people with disabilities who use wheelchairs from having equal access to this beautiful, recently remodeled resort. I hope that the current lawsuit against this facility corrects all of the violations I have read about and seen in photographs or Mr. Eastwood will end up facing additional litigation filed by other people with disabilities who are now aware of the barriers at this resort.
Congressman Foley filed this bill after Anthony Brady, on behalf of a client, sued Action Mobility, and after one lawyer in Palm Beach County filed a number of lawsuits against businesses in Mr. Foley's district. While the owners of these businesses were surprised to be served with lawsuits none of them should have been surprised. Each business sued did have violations of the ADA that would have prevented people who are required to use wheelchairs from parking and getting in the front door of these stores. Not one of the lawsuits that led to this bill has been dismissed as frivolous. There is no question that the lawyer who filed these lawsuits did so to make money from the legal fees charged to the defendants. However, that is why lawyers represent clients and file lawsuits; so that the lawyers can make money. In ADA lawsuits there are no monetary damages that a lawyer can split with a client. What the lawyer gets are reasonable fees; hourly pay at a reasonable rate for the experience and skill of the lawyer for a reasonable number of hours based on the complexity of the litigation.
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Mr. Brady charged Action Mobility $1,600 for his work. His initial bill was higher but, as with many negotiated settlements, he agreed to a lower fee. The fee included drafting the complaint, flying to Florida from New Jersey to inspect the facility, negotiating a settlement, and drafting a settlement agreement. Based on typical local legal fees Mr. Brady charged for less than 6 hours of work. He spent more than that amount of time just flying to and from Florida.
The other lawyer who filed a large number of lawsuits tried to demand $5,000 from defendants who wanted to quickly settle. I believe that his fee demands were outrageous. Fortunately, the people who have the authority to reduce such fee demands, judges, seem to agree with me. No federal district judge has ordered a defendant to pay such a high fee to this lawyer for the ADA cases he filed. In one case he received $500 in legal fees.
There are a couple of law firms that are taking advantage of disability laws. One lawyer in California has made quite a business of representing one client in hundreds of lawsuits. But those lawsuits are in state court and are under the California Unruh Act, not the ADA. The California Assembly just last week declined to amend their law. No matter what Congress does this lawyer will be able to continue filing his lawsuits in state court.
In Florida there are two law firms that are troubling to people with disabilities because of how they try to capitalize on the ADA by charging high fees. One of these lawyers currently faces bar complaints. Most people with disabilities will no longer use this lawyer and most ADA consultants will no longer work for him. The other problem law firm has been reduced to using the uncle of one of the partners of the firm as their only plaintiff for ADA cases and the untrained cousin of a partner of the firm as their only ADA consultant. No one else will work with them or for them. Between the ethical requirements of the Bar and the authority of district court judges the behavior of these lawyers can easily be addressed without amending the ADA. I met with Congressman Foley and Congressman Shaw shortly after this bill was filed. I explained to both of them what I would like to explain to you. The ADA is not broken and it does not need to be fixed. This civil rights law is, 10 years after its passage, finally beginning to give equal rights to people with disabilities. The backlash against this law is tiny when compared to the backlash against the last major civil rights law passed by Congress. When the Civil Rights Act of 1964 was passed the National Guard was needed to enforce the rights of those protected by that law. All people with disabilities have needed to enforce our rights has been access to the federal courts. Limit that access and you limit our civil rights.
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Mr. Foley has stated that he has proposed this bill so that small businesses will not be sued for violations of which they are not aware. This bill would not simply give small businesses the ability to violate the ADA without consequences; it will give that right to all businesses regardless of size. In reviewing the various lawsuits that have been filed under title III of the ADA I have seen that these lawsuits fall into eight different categories.
1. New construction—I would not think that Congressman Foley sees a need for pre-litigation notice or waiting periods for facilities constructed subsequent to the effective date of the ADA. All such properties had to have a licensed design professional develop the plans for these facilities. Such design professionals (architects and engineers) are required by their licensing to make sure that their projects meet all requirements of law, including the ADA. Such buildings have also gone through plans' review by the local building department as well as inspection before a certificate of occupancy is issued. title III of the ADA does not call for ''readily achievable barrier removal'' in such facilities but for full compliance with the requirements of the ADA Accessibility Guidelines (ADAAG). Limiting litigation in such a facility would be like limiting litigation against a building owner who did not bother to install fire alarms or where the elevators failed to meet the ANSI requirements. Such a building owner has recourse against the architect and/or general contractor for such errors and omissions.
2. Additions to existing facilities—The same issues apply here as in the issue of new construction. Additions to existing facilities must be permitted and inspected. A design professional must sign the plans as meeting all relevant laws and codes, including the ADA. Here again, the requirement is for full compliance within the added portion of the facility, not just readily achievable barrier removal.
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3. Alterations to existing facilities—When a facility is altered, the alterations must be permitted and inspected just as in additions and in new construction. However, the standard for complying with the ADAAG is less stringent. In alterations o existing facilities the ADAAG states ''No alteration of an existing element, space, or area of a building or facility shall impose a requirement for greater accessibility than that which would be required for new construction.'' The same section of the ADAAG goes on to say, ''. . .the modifications shall be done in compliance with these guidelines unless technically infeasible.'' The ADAAG also states, in addressing alterations of existing facilities, ''No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.'' While this mixed bag of regulations may seem confusing on the face it actually, to a design professional, is very clear. Alterations of existing facilities must meet the new construction standards of the ADAAG unless doing so is technically infeasible. Litigation in such a situation would concern an alteration not meeting the new construction standards through a decision made by the design professional and the facility owner.
4. Accessible route improvements—This issue applies to both additions to existing facilities and alteration of existing facilities. When such construction work is undertaken, the ADA requires that architectural barriers along the accessible route from the unaltered portion of the facility to the altered portion of the facility must be removed through alteration. This portion of the law is there so that a new or altered portion of a facility cannot be constructed with no way for people with disabilities to get to or use the added or altered portion(s) of the facility. The ADA puts a limit on how much barrier removal must be performed in such a situation. That cap is 20% of the overall cost of the addition(s) or alteration(s). Again we have a situation where a licensed design professional is involved in the project and agrees in writing that all relevant laws and codes are being met. An error or omission on the part of such a design professional would be the cause of such a violation unless the building owner refused to do the work required by the ADA.
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5. Architectural Barrier Removal in facilities of multi-facility companies—Many companies with multiple facilities such as hotel chains, movie theater chains, restaurant chains, hospital corporations, etc., have the responsibility of removing architectural barriers at their places of public accommodation when such barrier removal is readily achievable and technically feasible. We are now speaking of large corporations with property development officers, legal departments, and, in many cases, full time design professionals on staff. In many of these companies the decision has been made to address the requirements of the ADA in a reactive rather than pro-active manner. Only when a serious complaint, threat of litigation, or actual litigation occurs will such companies address the requirements of the ADA; and then, only at the facility which is the subject of the complaint. An example is Federated Department Stores which lost in trial over the barriers at the San Francisco flagship store and then refused to follow the requirements of the court imposed on that store at any of their other stores. At this time more than 140 Federated stores are facing litigation as a result of the position taken by Federated Department Stores.
6. Architectural Barrier Removal in facilities owned by corporations—These facilities are often owned by individuals who have formed corporations through which the business operates. Some such facilities, Pro Player Stadium in Miami for example, cannot be considered small businesses. Other such facilities, such as a local video tape rental store that is not part of a chain, can be considered to be small businesses. The owners of such facilities have demonstrated a degree of legal sophistication through the formation of a corporate entity which can provide tax benefits to the owner(s) as well as providing protection of the assets of the individual owners through the corporate veil. Such owners have the legal knowledge, or the support of lawyers and accountants, to cope with corporate tax responsibilities, collection and payment of sales taxes, and the many responsibilities of operating a registered corporation. In such a business operation corporate positions such as president and treasurer must be filled. Meeting of the board of directors must be held. Corporate minutes must be maintained, reports must be filed with the Secretary of State on an Annual basis. Knowledge of the requirements of the ADA is not beyond the ability or responsibility of such business owners.
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7. Architectural Barrier Removal in facilities owned by limited partnerships—Facilities owned by limited partnerships are usually far from the ''mom and pop'' type of operations owned by an individual and family members. Such business operations are often formed by real estate developers for the tax benefits derived from such ownership strategies. These partners, or at the least the operating partner, are usually professional business people operating multi-million dollar businesses. The operating partners are typically highly sophisticated and know their way around the legal and political systems. An example of such partnerships is the limited partnerships that own many of the large shopping centers in south Florida. Shopping centers such as the one mile long Oakwood Plaza in Hollywood Florida and the large Cypress Creek Station in Fort Lauderdale, Florida are owned by limited partnerships formed by Michael Swerdlow following the construction of these shopping centers by the corporation, Michael Swerdlow Companies. Both of these shopping centers were constructed with numerous violations of the ADA Accessibility Guidelines.
8. Architectural Barrier Removal in facilities owned by small partnerships and individuals—Facilities owned by partnerships formed by family members or friends as well as sole proprietorships are typically small businesses with one or a small number of facilities. While the owners of such businesses may have extensive business and legal knowledge, it is just as likely that such business owners know little of the legal requirements of operating a place of public accommodation. It is difficult to paint this group with a broad brush. Small business owners can range from people who have left the large corporate climate to strike out on their own, people with extensive knowledge of the legal issues of operating a business, to individuals following their dream of business ownership and self employment. The owner of three movie theaters in Fort Lauderdale is one example of such business ownership as is the owner of a small natural food restaurant in Hollywood. Some such business owners would have limited knowledge of their responsibilities under laws such as the ADA.
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Of the eight kinds of defendants I have described only the last category could possibly be worthy of the notice requirements of Mr. Foley's bill. Of course their worthiness is based on a belief that people with limited resources are not required to follow the law. If that is the new standard of law enforcement in the United States then we need to instruct police officers to not ticket drivers who are not driving new cars. We need to tell the I.R.S. to not prosecute people for tax fraud unless they are above some income threshold. Everyone is required to follow the law. That should especially be the case when the law in question is a civil rights law.
People with disabilities have never been required to sit in the back of a bus; we couldn't get on the bus in the first place. We have never been required to use different restrooms than everyone else; we have not been able to get into the restroom at all. Signs were not needed at drinking fountains, we couldn't reach them to use them. title III of the ADA has given us the right to shop for food, the right to see a movie, the right to enjoy a baseball game, and the right to eat in a restaurant. title III has even given us the right to get into a doctor's office and, much to Mr. Foley's displeasure, the right to get into a lawyer's office. title III of the ADA has given us the right to participate in the economy of the nation. This bill will not take those rights from us. This bill will simply make it much more difficult, if not impossible, to enforce our civil rights when they are violated by places of public accommodation.
The right to sue in federal court and the provision of awarding reasonable legal fees to the prevailing party is a carefully written section of this law. We call that section of the ADA the Citizen Enforcement Provision. With only a small number of people assigned to ADA litigation in the Department of Justice it is the people with disabilities, through our access to federal courts, who have been charged with the responsibility of enforcing our civil rights.
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I know of no other discriminated against minority group that has been required to enforce their own civil rights. An entire federal agency protects the rights of Native Americans. The Department of Justice has been extremely active for decades enforcing the rights of people of color and people of cultural and ethnic minorities. From New York City to Los Angeles, the Department of Justice is there to take to task those who violate the Civil Rights Act of 1964. We are not complaining about being allowed to enforce our own civil rights. We are complaining about a bill that would make that enforcement much more difficult.
When the Citizen Enforcement Provision of the ADA was written it was decided to not provide damages to people with disabilities who suffered discrimination and sued for equal rights. None of us wanted to see the ADA used as a way for people with disabilities to make money from the discriminatory acts or omissions of business owners. Damages are only available under this Act when the discrimination is so serious that the Department of Justice feels it necessary to expend their limited resources on a particular case. In order to enforce our civil rights the ADA gives us access to federal courts and the ability to have our lawyers paid by the defendant when we establish that the ADA has been violated. Members of Congress and your staff made it very clear to us when we were working to see the ADA become law that there was no increase planed in the funding for the Department of Justice to enforce this law. Unless it is your intent to provide a lot more money to the Department of Justice so that they can more actively enforce our rights then this bill will weaken the enforcement of the civil rights of people with disabilities.
This bill appears on its face to be very simple. All it requires is written notification of specific violations and a 90-day period after such notice before a lawsuit can be filed. However, the devil is in the details. Any business in existence since 1990 that is currently in violation of the requirements of title III of the ADA has been in violation for almost 8 years. I know of no law that a person can violate for that long and then still have the right to correct the violations of law before being sued for those violations. Maybe our kinder and more gentle I.R.S. will provide such a grace period to people who cheat on their taxes. People with disabilities have waited our whole lives for equality. We are now being asked to wait a little longer while violators of our civil rights are given more time, without consequences, to stop discriminating against us.
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The 90-day waiting period, as troubling as that is, is only a small part of what is wrong with this bill. Every person with a disability who faces discrimination will be required to be an ADA expert in order to seek equal rights and equal access. Because of the work that I do as an ADA consultant I could take you on a tour of business in this city and show you specific violations in various business facilities. I know how wide a door must be the maximum slope of a ramp, the accessible route requirements and the restroom requirements. Could any of you measure the slope of a ramp to see if it is too steep or evaluate an elevator for compliance with the requirements of the ADA Accessibility Guidelines? Neither can most people with disabilities. We know when we can't get up a ramp, when we can't reach the floor buttons in an elevator, when we can't use a public restroom. But most people with disabilities do not know the specific scoping and technical requirements of any building code including the building code aspects of the ADA Accessibility Guidelines. This Bill would require that every person with a disability have this knowledge in order to provide written notice of violations to business owners. Notice of violations that simply said, ''I could not get into the toilet stall'' would not be seen as sufficient detailed notice.
Even worse than requiring that people with disabilities seeking their civil rights be ADA experts is the impact of this bill on the ability of people with disabilities to obtain legal representation. Typically a person with a disability who has experienced discrimination will contact an organization such as the Association of Disability Advocates. The association then will refer the person to a lawyer if their complaint seems valid. The lawyer, under the Rule 11 of the Rules of Civil Procedure, investigates the complaint and after verifying that there are violations of law files a lawsuit. If this bill became law lawyers would not get involved until after notice was given and the 90 days had passed. I know of no lawyers who would take such a case, investigate the violations, investigate the ownership of the business, write a letter of notice, and then wait 90 days to see if they would be paid for the time already spent by being able to file a lawsuit. A person with a disability would have to have enough money to pay the lawyer for that work, only getting their legal fees back if the business ignored the notice. If a business owner, responding to notice, simply applied for a building permit to correct the violations during the 90-day period no lawsuit would be possible and the legal fees could not be recovered. If the work never got done or was not done correctly then the whole process would have to start over again.
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Title I of the ADA has not resulted in great improvement in the unemployment of people with disabilities. We continue to have some of the highest rates of unemployment of any population group in the United States. The vast majority of people with disabilities would have to choose between paying a lawyer or buying food. This bill would strip millions of people with disabilities of their access to legal representation when faced with discrimination.
I would like you to look at a picture that I will try to paint with words. A woman has quadriplegia and uses a power wheelchair. She tries to meet friends for lunch and finds that she has to use the back door and go through the kitchen to get into the restaurant. During her meal she needs to use the restroom and discovers that she cannot get through the door of the restroom to even get near a toilet. Embarrassed, she tells her friends that she has to leave. She calls a lawyer the next day and is told about the notice requirements of the ADA. The lawyer tells her that for a $1,000 retainer he will inspect the restaurant and write a letter of notice. She does not have $1,000. The lawyer tells her to call back after she provides notice to the owner of the restaurant and the 90 day waiting period passes.
This woman with a disability now has to figure out how to provide this required notice. She goes to the library and uses their voice activated computer to go to the D.O.J. website. She gets to the ADA Accessibility Guidelines and sees the requirements. However, she cannot handle a tape measure to measure the width of the front door. She cannot get into the restrooms to identify the violations there. She does not have enough use of her hands to write a letter. If this woman finds a way to identify specific violations and if she finds a way to write a letter she then must send the letter by certified mail. That requires that she make her way to the post office and try to find a counter that is not too high for her to use. Then, after waiting 90-days, she has to return to the restaurant to see if the barriers have been removed or if she can file a lawsuit. If this bill becomes law, this woman, and hundreds of thousands like her, will have no way to enforce her civil rights.
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I have saved the worst problem for last; that of voluntary compliance with the ADA. I believe that it is reasonable to assume that most businesses that are interested in being accessible to people with disabilities have already done needed alterations to remove architectural barriers. The millions of businesses still in violation of this civil rights law either don't care or choose to bury their heads in the sands of ignorance. The only thing getting these businesses to comply with the law is litigation. It is difficult to not care when being sued. It is impossible to be ignorant with facing litigation over chosen ignorance.
This bill would let all of these business owners continue violating the civil rights of people with disabilities without even the fear of being sued. There would be no reason to fix a restroom, construct a ramp or even put in parking spaces for people with disabilities until a letter was received giving notice of such violations. Corrective action would only have to be taken once such a letter was received. The biggest beneficiaries of this bill would be the large corporations who are waiting to be sued before complying with the requirements of the ADA. If this bill becomes law, they can continue to wait. When they get a letter, they will only have to correct the violations identified in the letter. Fixing those violations will avoid a lawsuit, avoid an inspection as part of discovery, and leave all of their other violations undiscovered and uncorrected.
I have asked my lawyer to file a lawsuit against a corporate owned Marriott Hotel in Colorado. When I stayed there, I could not even get through the door of my wheelchair accessible room without assistance. The hotel's solution to their violations of law was to offer me a room at a different hotel 20 miles further away from where I needed to be. An employee of the hotel who was upset with my access problems told me that the hotel manager had taken money allocated for ADA compliance work and used it to redecorate the rooms on the concierge floor. Do you really think that Marriott Hotels deserves a letter of notice and a 90-day grace period before I should be able to sue them? Do you really think that, after I was burdened with the barriers of their discrimination, I should be required to fly back to Colorado to identify specific violations to include in my letter to them? Do you really believe that Marriott, Hyatt, Days Inn, and the many other corporations that continue to violate the ADA simply don't understand that they are in violation of a federal civil rights law.
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Thank you for the time to explain to you why HR 3590 would be harmful to the civil rights of people with disabilities. If you have any questions I would be glad to try and answer them.
Mr. CANADY. Ms. Fields.
STATEMENT OF TAMMY K. FIELDS, ASSISTANT COUNTY ATTORNEY, PALM BEACH COUNTY, FLORIDA
Ms. FIELDS. Mr. Chairman and members of the committee, first I want to thank you for the opportunity to address you this afternoon. And as the last speaker, I am afraid that a lot of what I say may sound repetitive but I ask that you bear with me.
My name is Tammy Fields. I am an assistant county attorney for Palm Beach County and I am here speaking on behalf of Palm Beach County. I have been an assistant county attorney for the past 11 years. My role with the county is to advise the social service departments and the civil rights enforcement departments.
When the ADA went into effect, I was also assigned the task of advising the board of county commissioners on compliance with Title II.
I have also authored the civil rights ordinances for Palm Beach County for fair housing, minority-owned businesses and handicapped parking.
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And as you observed, on May 16th, the Palm Beach County Board of County Commissioners adopted a resolution urging the passage of the ADA Notification Act. And you should have also received a letter from our chairwoman, Commissioner Maude Ford Lee, and Commissioner Warren Newell, the district commissioner of many of the businesses that have been affected and you have heard described this morning, and I ask that you accept those into the record as well.
Mr. CANADY. Without objection.
Ms. FIELDS. The Palm Beach County Board of County Commissioners became involved in supporting this after 38 lawsuits were filed by one law firm in a 2-week period of time. They were filed against small businesses located in a corridor on Lake Worth Road within Palm Beach County. The lawsuits target long-time established mom-and-pop businesses who unfortunately were not aware of the need to make certain modifications to their premises in order to comply with the ADA.
The businesses are located, as you have heard some reference, some are in strip malls and they are located in a depressed corridor that is trying to revitalize. The lawsuits were not filed by a Palm Beach County resident who would likely be seeking the services of these businesses, but by a Broward County resident. They were filed on behalf of a Broward county mother and her minor daughter. And they alleged denial of access to businesses that they had not frequented, had not even tried to enter, and that has been acknowledged in several news reports—and probably they are not likely to ever try to access those businesses.
Once the businesses were advised of their ADA deficiencies, most undertook immediate remedial action even though they had limited resources. In recognition of their remedial efforts, they received demand letters from the plaintiff's attorney in the amount of $5,000 in fees.
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The intent of the ADA was to provide access for disabled persons and Palm Beach County certainly applauds this intent. It shouldn't, however, be used to enrich attorneys who file cookie cutter lawsuits—and that is what all of these lawsuits have to be described as—and seek large attorney's fee awards. If the businesses on Lake Worth Road had been given a 90-day opportunity for cure before filing the lawsuit, most would have done so and avoided the expense of hiring an attorney only to fight a demand for excessive attorney's fees.
Mr. Levy mentioned that you cannot file a lawsuit and then send a letter for attorney's fees, but unfortunately in these cases that is exactly what happened. They filed a lawsuit and made a demand for attorney's fees. They targeted businesses who were intimidated by receiving these lawsuits. They made it where the businesses were afraid of incurring legal fees for their own attorney to fight the demand for attorney's fees and risking that additional attorney's fees would be accumulated as they got all the way to court to argue over attorney's fees, especially when they had already remediated the problems.
I wanted to note that Palm Beach County as a governmental agency has been very committed to the implementation of the ADA. Unlike many governmental entities, Palm Beach County complied with the time frames and adopted a transitional plan and implementation plan long before the enactment of the ADA. Palm Beach County enacted a handicapped parking ordinance which directs fees collected for handicapped parking violations to local nonprofit organizations who are providing services to the disabled.
I wanted to digress for a minute on a personal note and say that I am frequently accused of being the really liberal lawyer in our office. But I really do not see this as a liberal or a conservative type of issue. It is really an issue of fairness to both the disabled community and the small business owners. As an attorney, I feel ashamed when I hear that this very important law, the ADA, is sometimes referred to as the ARA, the Attorneys Relief Act. And that is not appropriate. It is an important piece of legislation and it should not be referred to as the Attorneys Relief Act.
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On behalf of the Board of County Commissioners of Palm Beach County, I urge your support of the ADA Notification Act. The passage of this bill will provide protection to small businesses, while still ensuring that access to persons with disabilities is provided. And thank you for your time.
Mr. CANADY. Thank you.
[The prepared statement of Ms. Fields follows:]
PREPARED STATEMENT OF TAMMY K. FIELDS, ASSISTANT COUNTY ATTORNEY, PALM BEACH COUNTY, FLORIDA
On May 16, 2000, the Palm Beach County Board of County Commissioners adopted a resolution urging the passage of the H.R. 3590, the ADA Notification Act. This resolution has been sent under separate cover.
I am addressing this committee on behalf of the Board of County Commissioners of Palm Beach County. I have been an Assistant County Attorney for the past 11 years. My role with the County has been to advise the County departments who provide social services and the departments who enforce civil rights ordinances. I authored the civil rights ordinances for employment, housing, minority and women businesses and handicapped parking.
The Palm Beach County Board of County Commissioners support arose after the filing of 38 lawsuits by one law firm in a two week period against small businesses located on Lake Worth Road within Palm Beach County. The lawsuits targeted long-time established mom and pop businesses, who unfortunately were not aware of the need to make certain modifications to their premises in order to comply with the ADA. These businesses are located in a depressed area and are desperate for revitalization. The lawsuits were filed on behalf of a Broward County mother and her disabled minor daughter. They alleged a denial of access to businesses that the parties never attempted to access and likely would never access. Once the businesses were advised of their ADA deficiencies, most undertook immediate remedial actions even though they had limited resources. They then received demand letters from the plaintiffs' attorney for $5,000 in fees.
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The intent of the ADA was to provide access for disabled persons, and Palm Beach County applauds this intent. It should not, however, be used to enrich attorneys who file cookie cutter lawsuits and seek large attorney fee awards. If the businesses on Lake Worth Road had been given a 90-day opportunity to cure before the filing of the lawsuit, most would have done so and avoided the expense of hiring an attorney only to fight the demand for excessive attorney's fees. The cost of this type of litigation hinders the efforts of these small businesses who are struggling to revitalize the area.
It should be noted that Palm Beach County as a governmental agency has been very committed to the implementation of the ADA. Unlike many governmental entities, Palm Beach County complied with all timeframes in adopting a transitional plan and an implementation plan pursuant to the provisions of Title II of the ADA. Palm Beach County has also had a long-standing handicapped parking ordinance which directs fees collected for handicapped parking violations to local non-profit organizations who provide services to the disabled.
On behalf of the Board of County Commissioners of Palm Beach County, Florida, I urge your support of the ADA Notification Act. The passage of this bill will provide protection to small businesses while still ensuring that access to persons with disabilities is provided.
Mr. CANADY. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. And I thank all of these excellent witnesses on this final panel for coming and being here and providing additional input into this issue.
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Let me just ask a couple of questions that relate, since we have lawyers on this panel, a little bit more specifically to the details of the bill. But before I get to that, let me just—Mr. Bell, I was struck by the part of your testimony that says voluntary compliance is the order of the day and that in effect the lawsuits—and this is a direct quote, ''a drop in the bucket.'' Why would I want to set public policy based on the drop in the bucket theory?
Mr. BELL. I think, Mr. Watt, that they are a drop in the bucket in the sense of overall compliance nationwide. But they are not a drop in the bucket in the sense of the impact on the individual businesses or in the backlash against the ADA of this kind of litigation. That is in the sense that I meant that remark.
Mr. WATT. Mr. Fields, did I understand you to say that you consulted with Representative Shaw and Representative Foley about the actual language and drafting of this bill?
Mr. FIELDS. I spoke with members of Representative Foley's office and gave them my thoughts on what would be appropriate in my mind to do with this type of problem. I did not see the bill until after it had been filed, and then provided additional input at that time regarding what my thoughts might be on solving the problem.
Mr. WATT. And have your comments to them been incorporated in a revised bill or is this the original bill that you looked at and gave them input in?
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Mr. FIELDS. The current bill is not the product of the comments that I have made.
Mr. WATT. Well, I don't want to put you in the position of defending a product that you were not involved in drafting. Let me ask the questions in a more general way. There is a requirement that the notice inform the defendant that the civil action could not be commenced until the expiration of such 90-day period. So, in effect, the theory of this is that—I thought Mr. Foley and Mr. Shaw were saying that they are trying to move us toward a situation where we are encouraging people to conciliate without lawyers being involved either on the plaintiff's side or—either on the disabled side or on the side of the business.
What if somebody just wanted to put a store on notice, not engage a lawyer, just wanted, you know, I am a disabled person, I go to the store, I find that there is a problem and I want set the clock in motion, so to speak, or I want to get the thing addressed. I am not interested in hiring a lawyer, I am not interested in litigating about this.
How does this provision which requires that person to say to the business owner, the law requires me to give you 90 days' notice, how is that person more likely to have knowledge of that provision in the law than the business owner is likely to have knowledge of what is in the ADA?
Mr. FIELDS. There are quite a few State statutes in Florida that contain specific language and there are also rules of procedure as well that mandate certain language be placed into notices or into pleadings or into letters. By requiring that a person giving the notice follow a particular format, that is part of the law that if they want to proceed under the statute they will know about.
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Mr. WATT. But the presumption is that people know the law, and this is designed to address a situation where disabled people are saying you are presumed to know the law. And I am a legislator, I am in the middle here, I am trying to work toward a solution to a problem. Why would I create a problem that is identical on the other side to the problem that I am trying to address? That is the question I am trying to figure out.
Mr. FIELDS. Part of the debate process on this bill would be to talk about changes to it. And one—that is exactly—you have hit on a point. I think a notice, in writing, that says what the problem is, should be sufficient to give a property owner notice that they have a problem. Under the current bill, requiring lawyer language perhaps is not the correct route to go. But giving some type of notice, other than your property isn't compliant, period, sincerely, lawyer; or, sincerely, person who is complaining. I have seen instances where that has happened.
Mr. CANADY. The time of the gentleman has expired. Without objection, the gentleman will have 3 additional minutes.
Mr. FIELDS. So I think you are right. I think you have noted something in the bill that may be a technical requirement; that why should you throw the burden on the person who has been disabled to comply with procedural requirements?
I think it is sufficient to get the point across. I think if you start making the notice requirement too technical, then it is going to defeat the whole purpose, because then what you will have is a defense attorney arguing that the court does not have jurisdiction because the specific language was not used.
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My personal opinion is that if you are given notice of what you have done wrong or how your property does not comply, that should be sufficient. That is what I have strived to do in the plaintiff's cases that I have filed.
Mr. WATT. Let me pick up exactly there. Suppose I give you notice of what problem I have had. How does that encourage you to address the whole range of issues? Suppose I am impacted by one aspect of it, you know that you are in violation of nine other aspects of the ADA. I will give you specific notice about what I have been inconvenienced or what has impacted me. Why would I not want to set public policy in such a way as to encourage you not only to correct the one violation that has impacted me, but also to correct the other nine violations that you know—or maybe you do not know, but if my objective is to get you thinking about this and to get you to go and look at the law and figure out what those other nine violations are, why would I want to set public policy that deals only with the specific complaint?
Mr. FIELDS. When I think of a property owner, for the most part when my clients have received notice, they have taken a step forward to try to find out what they have done wrong in either hiring or obtaining the services of someone to inspect the property, and tell them. One of the organizations that I am on the board of directors of, the——
Mr. WATT. I appreciate your description of your practice but I am talking about this particular bill. Is there anything in this bill as it is drafted that would encourage anybody to go and do exactly what you encourage your clients to do? I mean, what about the person who is not being advised by you who is going to, you know—what I am trying to do is create a public policy that encourages compliance with the Americans with Disabilities Act. To keep lawyers out of it. They do not have to come to you. They do not have to go to a plaintiff's lawyer. Your clients do not have to come to you. I want lawyers out of the process completely, let's say that is my objective, if you are going to try to create a level playing field on both sides.
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Why would I not want to set public policy in such a way that you then as the store owner have to go and do some investigation and not have to go and rely on a lawyer who might or might not give you that kind of advice?
Mr. FIELDS. Many of the businesses that have been sued in south Florida relied upon the inspections that were done when they first opened their businesses. And they thought that they had complied with the laws because they got some type of document from a local entity that said you are allowed to be open. So a lot of these folks have not discriminated intentionally against folks that have disabilities, but they have in essence discriminated because they have not complied with the ADA. The ADA contains so many technical variations that oftentimes even the courts are in a quandary as to whether a particular property is in violation or not.
So the ADA is candidly not that clear and helpful to persons unless you are a lawyer or have an engineering degree, and even then that is how cases blow up into massive litigation.
So I agree with your concern, but there has to be some way of avoiding the situation that exists now, which is just as has been said, it is the tip of the iceberg, it is the waves before the hurricane. There is going to be more of this coming over the years.
Mr. WATT. It is not going to be a drop in the bucket it is going to be more than that.
Mr. FIELDS. It is just now sprinkling. Wait until the storm hits.
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Mr. WATT. Mr. Chairman, I appreciate it and I appreciate you having the hearing today. It has been very enlightening and informative. And I appreciate you all being here. I yield back.
Mr. CANADY. Thank you, Mr. Watt. I want to join with Mr. Watt in thanking all of you for your contribution. I think each of you has made a significant addition to the testimony, along with the earlier panels. And let me just say what I conclude from all of this. I conclude that there is a problem, but I also am concerned that this particular piece of legislation, as it is drafted, may have unintended consequences and may do more than even the sponsor would intend for it to do.
So I think this is something we have to carefully consider. The goal of all of this should be to enhance compliance with the ADA, and nothing should be done that is going to interfere with our desire or our efforts to see more compliance across the land with this important law.
So I think if we start out with that as an understanding, that should be what frames the whole discussion. And I think the testimony that you have provided, it will be very valuable to us as we evaluate. Does anybody have anything else you would like to say before we conclude? Mr. Bell, do you have anything?
Mr. BELL. I guess I just wanted to add as I was sitting here and thinking about it, that many of the witnesses talked about how this was a delaying factor. The reality is if you file a lawsuit in Federal court, if you take it to trial, it is going to be 18 months or 2 years. There is no quick justice, other than sitting down at the table and negotiating. And that can be done before the suit is filed. It can be done after the suit is filed. And I would just prefer that as much of this gets done extra-judicially. And I agree with Mr. Watt's statement. I think that is the goal of the bill and I think that helps folks with disabilities.
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Mr. CANADY. Mr. Levy?
Mr. LEVY. Thank you, Mr. Chairman. I guess the only thing I would like to leave the committee with is the idea that there was an undercurrent through much of the testimony this morning that somehow people should be embarrassed about filing lawsuits trying to enforce the law of the land. The Congress intended private litigants to enforce this law. That is the whole structure of this statute. And the fact that lawsuits are only starting to get filed in large number should not be something that we are dreading. It should be something we welcome because what it means is that after a decade of this law being on the books, there still is not widespread compliance. And I think that if people do not want to get sued, what people should do is they should find out what the law requires and they should comply with it. And if they do that, then they are not going to have to worry about a lawsuit. Thank you very much.
Mr. CANADY. Mr. Shotz.
Mr. SHOTZ. Thank you, Mr. Chairman. There are two law firms in Florida that really have us sitting here at this time because of what they have been doing. The law firm that sued 38 businesses in Lake Worth was a flash and they are gone. There is a law firm in Miami, Florida, and the senior partner of that firm is currently facing two bar complaints because of his behavior. That is the right forum for that behavior. The second law firm which is filing a lot of these so-called driveby lawsuits has no more clients. People with disabilities will not use them, so that law firm's only disabled client is the uncle of a partner in the firm. That firm has no more consultants. Their only consultant is the untrained cousin of a partner in the firm.
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We can take care of this problem.
Mr. CANADY. Let me ask you about that. Those circumstances you described with respect to that firm will not stop them from filing lawsuits and getting fees paid by people who are concerned—who may have violated the law and are concerned about ultimately having to pay more attorney's fees unless they settle at the outset with whatever demand the law firm happens to make.
Mr. SHOTZ. Actually their lawsuits are starting to lose, often because of lack of standing, which is how judges deal with these kinds of issues. If your uncle lives in North Carolina and he is your plaintiff for lawsuits in Florida and you file 100 lawsuits and he has not been to Florida for 6 months, judges do not look kindly to that. All it takes if you have been sued improperly is to tell the judge what happened to you. The mechanism is in place. The bar is there.
With all the clients that Mr. Fields has spoken of, I have not heard any of those people who have paid more than $500 in legal fees, at least not where the judge ordered it. The lawyer asked for $5,000. In his testimony me made it very clear they were not getting $5,000. He will not give it to them. And that is how the system is supposed to work and it is working, sir.
Mr. CANADY. Those folks are fortunate enough to be represented by Mr. Fields. There are others that might not be so fortunate. But, again, I think that all of you have made an important contribution and we will certainly take into account your testimony and your perspectives as we deliberate on this issue.
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The subcommittee will now stand adjourned.
[Whereupon, at 2:21 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
| U.S. Department of Justice, |
| Congressional Budget Office, |
| Washington, D.C. |
Hon. CHARLES T. CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
CHAIRMAN CANADY: I am writing to you to express the Administration's opposition to H.R. 3590, the ''ADA Notification Act.'' The proposed legislation would prohibit individuals from bringing lawsuits to enforce title III of the Americans with Disabilities Act (''ADA'') without first providing notice of the alleged violation to the defendant and then waiting 90 days for the defendant to take corrective action. We believe that this proposed legislation would work to undermine voluntary compliance with the Americans with Disabilities Act and that it would unduly burden legitimate ADA enforcement activity.
There may be attorneys who are engaged in frivolous or harassing litigation under the ADA. The appropriate mechanism for addressing allegations of such behavior lies with the ethics and disciplinary bodies of State bar associations or with the court where the litigation is pending. Rule 11 of the Federal Rules of Civil Procedure and its State equivalents prohibit the filing of frivolous lawsuits and entities sued in such actions may recover attorneys fees and costs. In such an action, a court may also sanction attorneys, parties, and law firms and may assess monetary damages or penalties. When the Department of Justice is made aware of such allegations, we will refer them to the appropriate State bar association, as we did in the Florida matter referred to us by Congressman Foley.
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In 1990, President Bush and overwhelming bipartisan majorities in the Congress took strong steps to limit the need and incentive for litigation under title III of the statute. They delayed the ADA's effective date, prevented damages awards in private suits brought by persons with disabilities, and mandated a comprehensive technical assistance program to foster voluntary compliance with the Act.
The ADA itself, as crafted by Congress, included a number of safeguards to ensure that businesses and other public accommodations would have adequate notice of their obligations under the Act and ample time to take steps to bring themselves into compliance. Under section 310(a) of the Act, although the ADA was enacted on July 26, 1990, its requirements for public accommodations did not take effect for another la months (until January 26, 1992), six months after final regulations were issued. In addition, under section 310(b), Congress provided further protection from suits for up to a year (until January 26, 1993) for small businesses.
Congress also mandated the establishment of an unprecedented technical assistance program to educate persons who operate public accommodations and people with disabilities of their rights and responsibilities under the Act. Educating entities covered by the Act about their obligations has been a top priority for the Department of Justice. With the assistance of the Internal Revenue Service, we notified, each year for seven years, over six million businesses of their ADA responsibilities and how to obtain information on how to comply. Our toll-free ADA Information Line, established in 1994, received more than 100,000 calls in Fiscal Year 1999. In addition, we have published and disseminated 40 technical assistance documents, including approximately 500,000 copies of the ADA Guide for Small Businesses. All of our technical assistance documents are available 24 hours a day through our ''Fax-on-Demand'' system or on our ''ADA Home Page'' on the Internet, which was viewed at least six million times last year. In addition, we have provided funds to several trade associations to develop and disseminate industry-specific guides for hotels and motels, grocery stores, restaurants, builders and contractors, medical professionals, child care providers, and small businesses generally. We sent a packet of 33 ADA educational documents to approximately 6,000 Chambers of Commerce and placed an ''ADA information File'', containing 94 ADA publications in 15,000 local public libraries.
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Since 1991, the Department of Education has funded ten regional Disability and Business Technical Assistance Centers, which provide training and technical assistance to businesses in their communities.
As we approach the tenth anniversary of the ADA, many businesses have made their operations and facilities accessible to people with disabilities. In the process they have discovered the possibilities of new markets for their goods and services. We continue to extend compliance assistance to all businesses seeking to comply in good faith with the ADA.
To the extent that other businesses have adopted a policy of ''foot-dragging'' or ''wait and see,'' they should not be rewarded. Certainly, they should not receive an unfair competitive advantage over businesses that have already complied in good faith with the law. Nor should Congress take steps to encourage businesses not to move toward ADA compliance until legal action is threatened. This would create disincentives for voluntary compliance and make it much harder for those who have legitimate ADA legal claims.
Thank you for the opportunity to present our views. Please do not hesitate to call upon us if we may be of additional assistance. The Office of Management and Budget has advised us that, from the perspective of the Administration's program, there is no objection to submission of this letter.
Sincerely,
Identical letter sent to the Honorable Mel Watt, Ranking Member, Judiciary Subcommittee on the Constitution.
PREPARED STATEMENT OF THE PARALYZED VETERANS OF AMERICA
The Paralyzed Veterans Of America [PVA] appreciates this opportunity to express its views on HR 3590, the ADA Notification Act. PVA is a Congressionally chartered veterans' service organization serving over 20,000 veterans with spinal cord injury and dysfunction.
HR 3590 sets up a series of additional steps that would have to be followed by those seeking to take to court the owners of public accommodations or commercial facilities that are in violation of the ADA. These steps include advance notice of the specific violation being charged and a 90 day wait before any court could take action on a complaint.
This legislation would do a grave injustice to millions of people with disabilities. It ignores the fact that owners of properties covered by title III of the ADA have had almost ten years to comply with the law.
The ADA was signed into law on July 26, 1990. The provisions outlining the obligations of commercial and public entities covered by title III became effective on January 26, 1992. Architects, builders and business owners have had ample opportunity to learn of this civil rights law and to understand their obligations under it. If a developer or businessperson needs help in following the technical requirements of the law, there are numerous sources of assistance, both public and private, available. Thousands of businesses and public enterprises have complied with ADA's requirements with little difficulty and little fanfare over the last eight years. This committee should not reward scofflaws and those who willingly chose to ignore the law.
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Those who seek to escape their responsibility under the ADA have used the actions of a few unscrupulous lawyers as a subterfuge for undermining this law.
Attorneys filing frivolous, unsubstantiated law suits are subject to penalties under Rule 11 of the federal rules of Civil Procedure. The suggestion has been made by some ADA opponents that lawyers are seeking individuals unaffected by a title III ADA violation to conspire with them in filing suit. Only plaintiffs who have experienced actual injury have standing to sue in federal courts.
The fallacy of the 90 day waiting period and notice called for in HR 3590 is illustrated by an example from the home state of the bill's author. A year ago, a PVA member and his family travelled to Florida on vacation. They stopped to eat at a restaurant in Everglades City, Florida but found it without a ramp. This violation of the ADA was brought to the owner's attention. When the family returned to Florida for vacation this year, they found the restaurant still inaccessible. Our local PVA chapter contacted the owner who said he would have to receive a written notice by certified mail. Our chapter sent such a letter then discovered that the owner had failed to pick up the letter at his post office box. The notice of violation was subsequently returned to our chapter by the post office as refused mail. HR 3590 would simply give business owners like this an additional 90 days to ignore requests for compliance with the law. Furthermore, an unethical businessperson, like the one in Everglades, Florida, could claim never to have received the notice unless it is delivered personally like a warrant or subpoena.
On July 26th of this year, our nation will mark the 10th anniversary of the signing of the Americans with Disabilities Act [ADA] by President George Bush. It is only now beginning to have the impact that its supporters envisioned—integration of people with disabilities into our society—and there are still many obstacles to overcome. PVA urges you not to place additional barriers to the full participation of people with disabilities in our communities. Reject HR 3590.
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| Palm Beach County, |
| County Commissioner Office, |
| West Palm Beach, FL, May 16, 2000. |
Hon. CHARLES T. CANADAY,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
RE: ADA Notification Art
DEAR REPRESENTATIVE CANADAY: I am writing in support of the ADA Notification Act, H.R. 3590 introduced by Congressman Mark Foley.
My support of this modification, and the support of my fellow Palm Beach County Commissioners, arose after the filing of 38 lawsuits by one law firm in a two week period against small businesses located on Lake Worth Road within Palm Beach County. The lawsuits targeted long-time established mom and pop businesses, who unfortunately were not aware of the need to make certain modifications to their premises in order to comply with the ADA. These businesses are located in a depressed area and are desperate for revitalization. The lawsuits were filed on behalf of a Broward County mother and her disabled minor daughter'. They alleged a denial of access to businesses that the parties never attempted to access and likely would not access. Once the businesses were advised of their ADA deficiencies, many undertook immediate remedial actions even though they had limited resources. They then received demand letters from the plaintiff' attorney for $5,000 in fees.
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The intent of the ADA was to provide access for disabled persons, and I applaud this intent. It should not, however, be used to enrich attorneys who file cookie cutter lawsuits and seek large attorney fee awards. If the businesses on Lake Worth Road had been given a!90-day opportunity to cure before the filing of the lawsuit, most would have done so and avoided the expense of hiring an attorney solely to fight the demand for excessive attorney's fees.
On May 16, 2000, the Palm Beach County Board of County Commissioners adopted a resolution urging the passage of the H.R. 3590. This resolution has been sent under separate cover.
As the district commissioner for the many businesses assaulted with the lawsuits described above, I urge the House Judiciary Committee to support H.R. 3590. The Passage of this bill will provide protection to small businesses while still ensuring that access to persons with disabilities is provided.
Sincerely,
| Warren H. Newell, Vice-Chairman, District 3. |
cc:
The Honorable Henry J. Hyde
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The Honorable Asa Hutchinson
The Honorable Spencer Bachus
The Honorable Robert ''Bob'' Goodlafte
The Honorable Bob Barr
The Honorable William ''Bill'' Jenkins
The Honorable Lindsey Graham
The Honorable Melvin L. Waft
The Honorable Maxine Waters
The Honorable Barney Franks
The Honorable John Conyers, Jr.
The Honorable Jerrold Nadler
The Honorable Mark Foley
The Honorable Robert Wexler
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The Honorable Clay Shaw
The Honorable Alcee Hastings
Mr. Paul Taylor, Counsel, House Judiciary Committee
Nance Guenther, U.S. Strategies Corp.
| Palm Beach County Administration, |
| Board of County Commissioners, |
| Washington, DC, May 16, 2000. |
Hon. CHARLES T. CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR REPRESENTATIVE CANADY: We are writing to make you aware of our Board's strong support for legislation your Subcommittee will be considering this week, HR 3590, The ADA Notification Act. Attached you will find a Resolution of support from our Board for this legislation. We urge your Subcommittee to pass this legislation which would make a minor yet important improvement to the Americans with Disabilities Act (ADA).
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Many small businesses in our community have been subjected to federal lawsuits for alleged violations of the Americans with Disabilities Act (ADA). These businesses were sued without first being afforded notice or an opportunity to cure the violations. Even when businesses were quick to remedy even the most minor problem they remained responsible for paying the plaintiffs attorneys fees. In addition, once a lawsuit has been filed, even if a business is not in violation of the law, it must still go to the expense of hiring an attorney to defend itself. As you can image, this is a tremendous burden on those small businesses. Unfbrtunatcly, this problem is being faced by businesses across the nation, not just in Palm Beach County.
It is our Board's feeling that this has become a cottage industry for lawyers filing avoidable lawsuits. These lawsuits do not advance the interests of the disabled and make compliance with the ADA cost prohibitive as small businesses are being forced to pay the attorney's fees instead of simply correcting the problem and improving accessibility. Compliance can often be easily accomplished with a specific requirement in the Act that notice, and an opportunity to cure any violation, is a condition precedent to the filing of a lawsuit. We appreciate your consideration of our position on this important issue.
Sincerely,
| Maude Ford Lee, Chair, Board of County Commissioners. |
Enclosure: as noted
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cc:
Members, Board of County Commissioners
Bob Weisman, County Administrator
Denise Dytrych, County Attorney
Gordon Selfridge, Chief Deputy County Attorney
Tammy Fields, Assistant County Attorney
Denise Cotd, Public Affairs Director
Marcia Mowbray, Intergovernment Relations Coordinator
Heidi Hanson, Federal Lobbyist
66728N.eps
66728O.eps
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| Palm Beach County Administration, |
| Board of County Commissioners, |
| Washington, DC, May 16, 2000. |
Hon. CLAY SHAW,
House of Representatives, Washington, DC.
DEAR REPRESENTATIVE SHAW: We are contacting you to re-emphasize our Board's support for Congressman Foley's legislation, HR 1590, The ADA Notification Act. Attached you will find a Resolution of support approved today by the Board of County Commissioners. As we discussed at our Joint Meeting in January, this minor change to the ADA is much needed.
We understand that this bill will be heard by the Constitution Subcommittee on Thursday, May 18. As you know, your Florida colleague, Representative Canady, is chair of that Subcommittee. We hope you will share your support for this bill with him and the members of the Subcommittee.
Thanks again for your early, strong—and ongoing—support of this beneficial amendment.
Sincerely,
| Maude Ford Lee, Chair, Board of County Commissioners. |
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Enclosure; as noted
cc:
Members, Board of County Commissioners
Bob Weisman, County Administrator
Denise Dytrych, County Attorney
Gordon Selfridge, Chief Deputy County Attorney
Tammy Fields, Assistant County Attorney
Doniso Coté, Public Affairs Director
Marcia Mowbray, Intergovernmental Relations Coordinator
Heidi Hanson, Federal Lobbyist
Mr. TIM CHARTERS,
Office of Congressman Duke Cunningham
Washington, DC.
RE: ADA Litigation
DEAR TIM: I hope you still have my package of information on the ADA complaint. I really appreciate your interest. A friend of mine did some investigative work to try to figure out how the plaintiff could justify damages and lack of notice in her claim against any center. The enclosed should help you understand how she was able to accomplish it. Maybe this is why these types of complaints are only being filed in California. Lucky us!
I have also forwarded this information on to the International Council of Shopping Centers.
Sincerely,
| Terri L. Davis, Property Manager. |
| Fairbanks Village Plaza, |
| Rancho Sante Fe, CA, May 5, 1999. |
Hon. RANDY ''DUKE'' CUNNINGHAM,
House of Representatives, Washington, DC.
RE: ADA Litigation
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ATTN: Tim Charters
DEAR CONGRESSMAN CUNNINGHAM AND MR. CHARTERS: Thank you for taking time out of your busy schedules to review this letter. I do appreciate the time already spent by Jim Ritchey and Tim Charters in understanding tile huge loophole that has opened opportunities for individuals and their attorneys to personally profit from ADA litigation.
I am the property manager at Fairbanks Village Plaza, a small commercial center located just at the entrance to Fairbanks Ranch in Rancho Santa Fe. On March 31, 1998, a lawsuit was filed against my center by Kathleen Lentini, an individual who is handicapped and utilizes a wheelchair. The basis of her complaint was vague at first, but generally she filed the complaint because I had only six handicap parking spaces, and should have had seven, Further, she said they were not all marked properly. She claims she was denied access to my center because of this (Exhibit #I).
Our company hired Peter Solecki, Esq. of Heclit, Solberg, Robinson & Goldberg, LLP to represent us. Dana Swartz and Peter Solecki responded to the complaint on March 19, 1998 the best we could, still not understanding the basis for her complaint (Exhibit #2).
We received a letter from Tom Vandeveld (brother of Amy Vandeveld, the attorney representing Kathleen Lentini) on April 3, 1998 outlining the basis of their complaint. At that time, Tom Vandeveld asked for $2,000 for ''damages'' for Ms. Lentini and $4500 for her legal fees at that time. He also reminded us that the longer we took to settle, the more in legal fees we would incur. (Exhibit 3).
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I demanded to have a settlement conference in person rather than on paper. The settlement conference was held in the office of Tom Vandeveld oil April 16, 1998. Kathleen Lentini, Tom Vandeveld, Dana Swartz and I were in attendance.
My purpose in asking for a meeting with Kathleen in person was to understand more clearly what her damages were and why she did not have the courtesy of letting me know in person, by mail, or by telephone that I needed to comply before she filed a complaint. First, she could only say she was damaged by my not having adequate parking spaces for handicapped people. She did not say she ''could not park''. We do have six. She said it just ruined her day, ''and it had been such a beautiful day''. She told me that she never provides notice. It never does any good. Second, she had to think long and hard about who she came to visit. After quite a while, her response was ''oh, it must have been that little deli''. Third, I asked her how many times she had been involved ill cases like this one. Her response after a very long consideration was ''well, Terri, you know, you go places every day.'' She never did answer my question.
After two hours of debate, we settled. She would get $1250, and tile attorney would get $3750. They reduced the original $6500 demand to $5000 because they considered tile amount of community service I personally do (see attached). They could not reduce the award further because of the ''consultant fees'' they were committed to. They let me off easy.
There were several issues with regard to this case that I found odd:
1. Damages vs. attorney fees were backward in my opinion. Typically, attorney fees are a percentage of damages. Here, it is the opposite. The complaint was boilerplate stuff. I started wondering who was working for whom.
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2. I have been in this center for 13 1/2 years and have never had a complaint about handicapped parking from anyone, tenant, visitor, or otherwise. My office looks directly at a handicap space. It is rarely occupied. I cannot understand how Kathleen was ''damaged'', and why she should personally benefit from my lack of having adequate parking. Can these really be construed as real damages?
3. Kathleen's attorney (Tom Vandeveld), prepared a Settlement Agreement which included a confidentiality clause. This was never discussed in our Settlement conference, by correspondence, or during any other conversations between our respective attorneys. I found this issue very odd because it is typically the defendant who desires confidentiality, not the plaintiff. I felt that if she felt justified in filing against me, why should she hide it? It took two weeks longer for Kathleen and her attorney to agree to leave this never discussed issue out of the Settlement Agreement (Exhibit #4). 1 became immediately suspicious. I made one call to another property manager nearby and learned that his center had been served by Kathleen also. Same language, etc. Same damages. At that time, I did further research and learned that Kathleen had filed 48 similar lawsuits (Exhibit #5) from March 1997 to March 1998.
4. We were asked to provide one check to the attorney in the name of Amy Vandeveld Client Trust. It will be from this account that Kathleen will be paid. We would like to understand how she will have to claim this money to the IRS. We are told that she may not need to claim it at all. Further, it would be my guess only that since she is handicapped, she may be receiving some form of social security, or disability. Isn't there a cap on how much you can earn and still receive funds? With 48 cases pending (some may have settled), she is making some good money. Would she still qualify to receive public funds? If so, I think it would be a further abuse of our system.
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It is my opinion that this is a complete misuse of the ADA regulations. I want to make it perfectly clear that I have absolutely no problem with the compliance part of the ADA legislation. Just the opposite, I spend most of my spare time raising money to benefit the handicapped world. If I had known I was not in compliance, I would have taken care of it immediately. In fact, I ordered the work to be completed before the Settlement Conference even occurred. I believe notice would be appropriate before a case can be filed. I am outraged that these individuals are using ADA regulations designed to help all handicapped people for their own personal benefit. I truly believe that if Kathleen is on a crusade to correct all wrongs to handicapped people, she could go about it in other ways.
I will be speaking about this issue to my Rotary group, and have talked with other organizations who want to learn more about this issue. I am hoping your office will help me bring this abuse to light so that we can close the gap in the system. I truly appreciate your help and advice.
Sincerely,
| Terri L. Davis, Property Manager. |
Enclosures
Hon. RANDY ''DUKE'' CUNNINGHAM,
House of Representatives, Washington, DC.
RE: ADA Litigation
ATTN: Tim Charters
DEAR CONGRESSMAN CUNNINGHAM AND MR. CHARTERS: The lawsuit which was served on the center that I manage had a profound effect on me personally. I spend an extraordinary amount of personal time raising money for individuals with handicaps of one kind or another. Because of this, I feel terribly betrayed by the very group I am trying to help.
I am on the Board of the Beach & Country Guild, an organization that provided over $90,000 to the United Cerebral Palsy centers in San Diego last October. My own portion of tile event raised over $40,000. I am co-chair of this year's event. We will raise over $100,000 for UCP.
I am a member of the Del Mar Rotary. In April our group participated in tile Christmas in April program nationwide. We adopted the home of a handicapped single parent, the father of two small children, here in San Diego. Our organization cleaned, painted, relandscaped and outfitted his house to make his lire a little easier. We do these kinds of activities all of the time!
I am on the Board of the Family Recovery Center Auxiliary, a center for women and their children recovering from alcohol and drug abuse, and chair the group heading the rehabilitation of the center (old, former Tri-City hospital). Just since October, I have beef) able to gather over $50,000 worth of in-kind donations for the center. I am on the Annual Fling Committee raising money for the Helen Woodward Animal Center. We bring animals to visit handicapped people, and incorporate riding lessons for handicapped children, among many other services.
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It is because I am so incredibly busy making money for handicapped people that I am so angry at being the target of one. I know you will understand. This is wily I could never sign a confidentiality agreement. I plan to talk to everyone I can in order to make the changes necessary to these regulations. I will be addressing Rotary. I am a member of the Fairbanks Republican Women and hope to address that group. I am talking to the International Council of Shopping Centers also.
I look forward very much toward working with you on this ADA loophole.
Sincerely,
| Paralyzed Veterans of America, |
| Washington, DC, May 15, 1999. |
Terri L. Davis, Property Manager,
Fairbanks Village Plaza,
Rancho Santa Fe, CA.
DEAR MS. DAVIS: Congressman Duke Cunningham's Legislative Assistant, Tim Charters, shared with PVA the information you sent to him regarding your recent ADA lawsuit. We talked several times about the difficulties you encountered and the method which Ms. Lentini and her attorneys are using to ensure implementation of the Americans with Disabilities Act (ADA.)
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Paralyzed Veterans of America is a Congressionally chartered veterans service organization with over 16,000 members, virtually all of whom use wheelchairs. PVA worked very hard to enact the ADA and is proud of its substance and the positive impact this law has on the lives of our members, others with disabilities, and society in general. Your fundraising efforts on behalf of disability organizations likewise contribute to increasing accessibility.
We were very disturbed to hear of the numerous lawsuits filed without notice or any attempt at cooperative implementation. PVA and most disability activists, while dedicated to full implementation of the ADA, prefer to assist in education and achieving real access for the benefit of all. We told Mr. Charters upon first hearing of this that while the ADA claim may have had merit, no damages are permitted under that section of the ADA unless the lawsuit is brought by the U.S. Department of Justice. Ms. Lentini and her attorneys appear to be taking. advantage of a lack of knowledge about ADA implementation.
You indicate that you are planning on talking to the Rotary Club and the International Council of Shopping Centers to alert them to this situation. I would like to offer our assistance in this effort. Staff from our national office in Washington, D.C. and our CalDiego Chapter in your area will be available for presentations on successful means of implementing the ADA.
I am enclosing some of our materials on the ADA and will contact you late next week to see if we can work together to increase accessibility to businesses in the San Diego area. Thank you for bringing this matter -to our attention.
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Yours sincerely,
| Maureen McCloskey, National Advocacy Director. |
| International Counsil of Shopping Centers, |
| New York, NY, May 14, 1998. |
Terri L. Davis,
Fairbanks Village Plaza,
Rancho Santa Fe, CA.
DEAR MS. DAVIS: Malachy Kavanagh referred your letter of May 7 to me. since this involves a legislative matter, I am sending your letter and the accompanying documentation to our Government Relations Office in Alexandria, Virginia to follow-up with Representative Duke Cunningham. You can discuss this matter further with Regina Schofield in that office, 703/549–7404 Ext. 234.
Although the Americans with Disabilities Act specifically provides for citizen enforcement, this right is clearly being abused in California. I received a call a few months ago from a member who had the, same problem you had. He suggested an amendment of the law to require a notice with an opportunity to cure the defect as a prerequisite to bringing a lawsuit.
Our Government Relations Office will do what it can with Representative Cunningham to pursue this type of an amendment. Strangely I have not heard of this problem occurring any place other than California. However, if we do not control it, I am sure this virus will spread.
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Thank you very much for calling this to our attention and your excellent work in developing the list of lawsuits.
Sincerely,
| Edward J. Sack, Staff Vice President and General Counsel |
Enclosure
CC:
M. Kavanagh
R. Schofield
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| Hect, Solberg, Robinson, Goldberg Law Office, |
| San Diego, CA, April 24, 1999. |
Ms. Terri Davis,
Watt Development, Inc,
Rancho Sante Fe, CA.
Re: Lentini v. Fairbanks Village Plaza
U.S. District Ct., So. Dist. CA, Case No. 98–CV0168 JM (AJB)
DEAR TERRI: Enclosed is a copy of the Settlement Agreement in the above-referenced matter, for signature by Fairbanks Village Plaza Co. Would you please have it returned to me after it is signed, and I will retain the original in our file for this case. This morning I exchanged the Agreement with the attorney for plaintiff in return, for the check you'provided and a stipulated dismissal, which is being filed with the Federal District Court today. The dismissal will end the formal proceedings. The taxpayer ID number for the Law Offices of Amy B. Vandeveld, a sole proprietorship and recipient of the check is 33 0776251.
As always, please call if you have any questions or concerns.
Very truly yours,
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Enclosure
cc:
Mark S. Humphreys
RELEASE STATEMENT AND AGREEMENT
SECTION 1.1: THE PARTIES TO BE BOUND
This Settlement Agreement (the ''Agreement'') is made effective the 15th day of April, 1998 (''the Effective Date'') by and between KATHLEEN LENTINI, Plaintiff, on the one hand and FAIRBANKS VILLAGE PLAZA, INC. on the other (collectively ''the Parties'').
SECTION 1.2: RECITALS
A. WHEREAS, on January 30, 1998, Plaintiff caused to be filed a civil complaint in the United States District Court for the Southern District of California (''the Court''), which was entitled KATHLEEN LENTINI v. FAIRBANKS VILLAGE PLAZA CO. and DOES 1 through 10, inlusive, Case No. 98–cv0168 JM (AJB) (hereinafter referred to as ''the COMPLAINT'') The COMPLAINT alleged causes of action charging discriminatory practices in public accommodations under a number of various theories and statutes.
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B. WHEREAS, the COMPLAINT pertained to a facility located at 16236 San Dieguito Road, San Diego, California (hereinafter ''the PROPERTY'').
C. NOW THEREFORE, based on the covenants and promises contained below, the parties have agreed to enter into this Agreement on the terms set forth below.
SECTION 2.1: SPECIFIC TERMS
A. Recitals:
The Recitals set forth herein are an integral part of this Agreement, and shall be used in any interpretation of this Agreement.
B. Performance By the Defendant:
The Defendant warrants, promises and covenants to undertake the following actions and performances:
1. On or before May 30, 1998, Defendants shall perform the following modifications to bring their facility into compliance with the Americans with Disabilities Act (''ADA'') and Title 24 of the California Code of Regulations:
a. Defendant shall install a total of seven spaces reserved for people with disabilities (''disabled spaces''.) The slope of the disabled parking spaces shall not exceed two percent.
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b. One of the seven disabled parking spaces shall be ''van accessible'' space, and shall be nine feet wide with an eight-foot wide access aisle on the passenger side of the space. The remaining six spaces shall all be nine-feet wide with five-foot access aisles for each space. All spaces shall have appropriate language. All accessible routes shall be located so that a person using a disabled space will not be required to travel behind any parking space, other than his or her own, to reach an accessible entrance.
c. Curb ramps serving all disabled spaces shall be located as close to the spaces as practical, so that the shortest accessible path of travel is provided to people with disabilities. All curb ramps shall comply with slope and side-slope requirements of the Americans with Disabilities Act Accessibility Guidelines.
2. On or before April 17, 1998, Defendant shall pay to the Plaintiff the total sum of One Thousand Two Hundred and Fifty Dollars ($1,250.00), in damages. Defendant shall also pay Plaintiff Is attorney fees and costs in the amount of Three Thousand Seven Hundred Fifty Dollars ($3,750.00) The total settlement monies payable by Defendant, therefore, shall be in the amount of $5,000.00 (Five Thousand Dollars.) The settlement check shall be made payable to ''the Amy B. Vandeveld Client Trust Account
C. Performance By the Plaintiff and its Counsel:
The Plaintiff and her counsel promise and covenant to undertake the following actions and performances:
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1. To file a Stipulated Dismissal with prejudice of the COMPLAINT. Said Dismissal shall be filed in the United States District Court for the Southern District of California upon execution of this AGREEMENT by all parties.
D. Mutual Releases:
For valuable consideration, the receipt and adequacy of which are hereby acknowledged by, (a) the Plaintiff, on the one hand, and (b) the Defendant on the other hand, on behalf of themselves and their respective heirs, executors, administrators, assigns, successors, predecessors, employees, agents, attorneys, past, present and future officers, directors, partners and shareholders (collectively the ''Representative Parties'') , hereby release and forever discharge each other, and their respective Representative Parties (collectively the ''Releasees'') only from the suits, claims, or demands of any nature whatsoever, which each has with respect to the disability access allegations described in the COMPLAINT and which relate to the PROPERTY (''the released claims'').
1. The Parties hereto acknowledge that they are aware they may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the released claims and the underlying facts, and that it is their intent to fully, finally, and forever settle and release all their known disputes and differences which now exist or have ever existed with one another, arising out of or in connection only with the released claims. The parties hereto agree that this Agreement shall remain in effect as a full and complete settlement agreement and mutual release of those claims included in this Agreement.
2. The Parties warrant that they have not assigned or transferred any interest in any claim they may have against the other parties, or any of them.
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3. The Parties understand and agree that the execution of this Agreement shall not be construed as an admission of any obligation or the validity of any claim by their Releasees, each of whom has consistently maintained that each has no obligation to the other.
E. Release of Unknown Claims:
All parties-to this Agreement acknowledge that they have been advised by legal counsel, with respect to, and are familiar with, the provisions of California Civil Code Section 1542 which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
All parties to this Agreement being aware of said Code Section, hereby expressly waive any rights they may have thereunder, as well as under any other Statute or common law principal of similar effect with respect to any of the released claims. Nothing in this paragraph shall reduce or waive the executory portions of this Agreement.
SECTION 2.2: GENERAL TERMS
A. Continuing Jurisdiction:
The Parties agree that the Court shall retain jurisdiction over all disputes between. the Parties arising out of the settlement agreement including, but not limited to, interpretation and enforcement of the terms of the settlement agreement.
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B. Notices:
Unless otherwise provided in this Agreement or by law, any and all notices or other communications required or permitted by this Agreement or by law to be served on or delivered to any party to this Agreement shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified or registered mail, return receipt requested, first-class Postage prepaid, addressed as follows:
TO THE DEFENDANT:
DANA R. SCHWARTZ, ESQ.
HECHT, SOLBERG, ROBINSON & GOLDBERG, LLP
600 WEST BROADWAY, NIGHTH FLOOR
SAN DEIGO, CA 92101
TO THE PLAINTIFF:
AMY B. VANDEVELD, ESQ.
VANDERVELD LAW OFFICES
7676 HAZARD CENTER DR., STE 800
SAN DIEGO, CA 92108
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Either party may change such address for the purpose of this paragraph by giving timely written notice of such change to the other party in the manner provided in this paragraph. Facsimile transmission shall constitute personal delivery.
C. Interpretation:
Whenever the context requires, any gender includes all others, and the singular number includes the plural, and vice-versa. Captions in this Agreement are inserted for convenience of reference and do not define, describe, or limit the scope or intent of this Agreement or any of its terms. The terms ''Person'' shall include a corporation, partnership, trust, or any other legal entity. ''Including'' shall mean inclusive without limitation to the included item specified.
D. Entire Agreement:
This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. No modification, waiver, amendment or discharge of this Agreement shall be valid unless it is in writing and signed by the party against which its enforcement is or may be sought.
E. Time is of the Essence:
Time is of the essence for each obligation hereunder.
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F. Applicable Laws:
This Agreement shall be construed and enforced in accordance with the laws of the State of California. This Agreement is made and is to be enforced within the jurisdiction of the United States District Court, Southern District of California.
G. Successors;
Subject to any provision of this Agreement that may prohibit or curtail assignment of any rights hereunder, this Agreement shall bind and inure to the benefit of the respective heirs, assigns, personal representatives, and successors of the parties hereto; provided, however, that there are no intended 'third-party beneficiaries to this Agreement other than those expressly set forth herein, and the parties intend that only they or their heirs, assigns, personal representatives, and successors, are entitled to enforce this Agreement.
H. Cooperation:
Each party agrees that he or she shall, upon the other's request, take any and all steps, and execute, acknowledge, and deliver to the other any and all.further instruments necessary or expedient to effectuate the purposes of this Agreement.
I. Counterparts:
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original.
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J. Equal Participation in Drafting:
No interference, assumption, or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this agreement. It shall be sonclusively presumes ghat all parties participated equally in the preparation and/or drafting of this Agreement.
K. Voluntary Execution:
The parties acknowledge that their execution hereof is voluntary,* that they have been advised by their respective counsel of all of the provisions hereof, and that, in executing this Agreement, each is not relying on any inducements, promises and representations made by the other party or his representatives except as may be expressly set forth herein. All parties hereto were represented by counsel.
L. Enforcement:
In the event it becomes necessary for a party to incur costs to enforce the provisions of this Agreement, the prevailing party in any litigation or action shall be entitled to that party's reasonable attorney's fees and costs as awarded by a court of law.
SECTION 3.1: EXECUTION
WHEREFORE THIS AGREEMENT IS ENTERED INTO AS OF THE DATE SET FORTH ABOVE, AND IS TO BE PERFORMED IN THE COUNTY OF SAN DIEGO, CALIFORNIA.
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By:
The Plaintiff
Kathleen Lentini
The Defendant
Fairbanks Village Plaza
| Hect, Solberg, Robinson, Goldberg Law Office, |
| San Diego, CA, April 24, 1998. |
Thomas J. Vandeveld, Esq.
The Vandeveld Law Offices,
Hazard Center Tower, San Diego, CA.
Re:
Lentini v. Fairbanks Village Plaza
U.S. District Ct., So. Dist. CA, Case No. 98–CV0168 JM (AJB)
DEAR TOM: This letter is to confirm our telephone conversation of this morning' regarding the settlement of the above-referenced matter. As I explained to you, while my client remains willing and able to resolve this matter on the terms negotiated, and I am in possession of a check in the agreed settlement amount, my client will not agree to the inclusion of a confidentiality provision in the Settlement Agreement, something which was not part of our settlement negotiations. To the extent your client is concerned about my client's future actions, I told you that I have reviewed with my clients, and they are well aware of, the laws regarding libel and slander.
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I understand that you will let me know early next week whether you client still wishes to settle this matter on the terms negotiated. My client remains willing to do so. In the interim, thank you for your courtesy and cooperation in handling this matter.
Very truly yours,
cc:
Ms. Terri Davis
Replace section (F) with the folling:
Other than as may be mutally agreed to in writing, neither party nor their attorneys shall make any mention or reference to the factual or legal issues presented or litigated in this lawsuit or in the settlement amount, except as may be required by law or as may be required by financial institutions, or by accountants or financial advisors.
ADDITIONAL INFORMATION SUBMITTED BY HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
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| Congress of the United States, |
| House of Representatives, |
| Washington, DC, May 15, 2000. |
Hon. JANET RENO,
United States Attorney General,
U.S. Department of Justice, Washington, DC.
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DEAR ATTORNEY GENERAL RENO: Later this week, on May 18, the Constitution Subcommittee of the House Judiciary Committee will be holding a hearing on a bill of mine—H.R. 3590, the ''ADA Notification Act''—which addresses a problem I wrote to you about last December. In advance of that hearing, I would appreciate some clarification of the response to that letter that I received from your Department.
The letter—and H.R. 3590—concern an increasing problem in Florida and elsewhere in which rogue attorneys have been using the Americans with Disabilities Act as a vehicle for what I consider blatant extortion of small businesses. They have been blanketing businesses with boilerplate lawsuits, without providing any advance notice, citing often minor and easily remedied violations of the ADA. In many cases, the violations are nothing more than the lack of parking signs or signs that need repainting. No one is disputing the existence of the violations—and these businesses are quick to respond by redressing the problems. However, these businesses are then faced with claims for attorneys' fees that have been as high as $5,000 or more, allegedly covering only the expenses of preparing to file lawsuits.
I will not repeat the entirely of the problem; my prior letter, which I am enclosing, explains it. But I am confused about the response I received from your Department. The response provides details on what your authority is concerning ADA enforcement. In doing so, it also says this: ''Notwithstanding her authority to enforce the ADA, the law does not give the Attorney General authority to investigate or prosecute plaintiffs or attorneys for filing enforcement actions to remedy title III violations by public accommodations.'' It adds: ''Therefore, the Department lacks jurisdiction to investigate or pursue claims of alleged frivolous or harassing litigation by private attorneys who file enforcement actions. Responsibility for investigating such claims lies with the State Bar of Florida or with the judiciary system in which the litigation is pending.'' Your department subsequently referred my original letter to the Florida Bar.
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Recently, however, I discovered that one of my colleagues, Rep. Randy ''Duke'' Cunningham, had also written to you a year and a half earlier about similar problems a constituent of his was having in California with attorneys who appeared to be exploiting the ADA for profit. No where in the response from your department to Rep. Cunningham was there any mention that you had no jurisdiction to investigate these attorneys. Indeed, the response written on your behalf said: ''Please be assured that the Department of Justice takes very seriously the conduct of unscrupulous attorneys when it comes to actions involving the ADA. In fact, we are currently working with the Federal Bureau of Investigation on situations involving fraudulent use of the ADA.''
Since no mention was made of this investigation in the response I received in January, I assumed that your department checked into this with the FBI but later decided you lacked jurisdiction to investigate these attorneys, as was stated in the letter to me. But now I understand that a legislative liaison to your department, Nancy Scott-Finan, was contacted by the Constitution Subcommittee of the House Judiciary Committee last week. In declining to offer a Justice Department witness who would represent the Department at this Thursday's hearing, Ms. Scott- Finan reported that this DOJ-FBI investigation did exist and was, in fact, still ''open.''
For the sake of clarity, I would appreciate an explanation of whether, indeed, your department does have the authority to investigate abusive use of the ADA (I was told it did not), whether an investigation is in progress and, if so, its status. I would appreciate any information on this investigation that you can offer to me and to the Constitution Subcommittee in advance of the May 18 hearing.
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I am enclosing all of the correspondence I mentioned and look forward to a prompt response. I am also both taxing this letter and posting.it to ensure that you receive it immediately.
Thank you in advance for your help.
Sincerely,
| Mark Foley, Member of Congress. |
cc:
Chairman Charles Canady
Nancy Scott-Finan
| Congress of the United States, |
| House of Representatives, |
| Washington, DC, December 10, 1999. |
Hon. JANET RENO,
United States Attorney General,
U.S. Department of Justice, Washington, DC.
DEAR ATTORNEY GENERAL RENO: For several weeks now, businesses in the Lake Worth community within my congressional district have been hit by lawsuits initiated by, two attorneys who have been using, the Americans with Disabilities Act to justify, their actions. In none of the cases have any of these businesses been given advance notice or warning in order to correct problems before a lawsuit was filed. And in most if not all of these cases, the businesses have remedied the problem, or a greed to, only to face bills from these attorneys of reportedly up to $5,000.
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The impression such tactics are is that the ADA is being used as an excuse to virtually extort money from these businesses—most of which are small businesses without the resources fight the actions in court.
These lawsuits are being brought on behalf of an organization called Citizens Concerned about Disability Access—whose main members, it appears, are the two lawyers initiating the suits, and a neighbor and her disabled daughter who reportedly live across the street from one of the lawyers. In at least some of the cases, the justification for filing the lawsuits seems to be that the disabled daughter was unable to gain access to the businesses—which, incidentally, include stores she reportedly never attempted to enter and others she would have been very unlikely to have, such as a liquor store, a pawn shop and a swimming pool supply shop (she has no swimming pool).
The situation has apparently prompted dozens of complaints from businesses as well as from advocates for the disabled, who fear such tactics not only will cause a backlash against the ADA but will erode public sympathy for the disabled as well.
I am enclosing several of the news accounts of these lawsuits and urge you to investigate their propriety—both here in Florida and elsewhere, if similar tactics have been used. There are a number of alarmed citizens in our community who see these tactics as pure extortion cloaked in the legitimacy of the ADA.
Thank you in advance for your consideration and help
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Sincerely,
| Mark Foley, Member of Congress. |
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, January 7, 2000. |
Hon. Mark Foley,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN FOLEY: This is in response to your letter to the Attorney General. Your letter requests an inquiry by the Department regarding lawsuits alleging violations of the Americans with Disabilities Act (''ADA'') filed against businesses located in Palm Beach, Florida. You attached several recent clippings from the Palm Beach newspaper citing examples of lawsuits filed by private attorneys in federal district court to enforce the ADA. As you have noted, the lawsuits were apparently filed by two lawyers on behalf of an organization called Citizens Concerned about Disability Access.
We have carefully reviewed the information provided in your letter and have decided to refer the matter to the State Bar of Florida for their review. The Attorney General is authorized to enforce title III of the ADA, which applies to public accommodations; she is authorized to investigate alleged violations, undertake compliance reviews of covered entities, and file civil actions in federal court for equitable relief or damages in order to make facilities readily accessible to persons with disabilities. Likewise, private persons are also authorized to file civil actions pursuant to title III against covered entities for injunctive relief to correct the ADA violations; however, only the Attorney General may seek damages under title III. Entities covered by title III include, for example, places of lodging, establishments serving food and drink, places of entertainment, places of public gathering sales and service establishments, transportation stations, places of public display or recreation, places of education or social services, or places of recreation.
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Notwithstanding her authority to enforce the ADA, the law does not give the Attorney General authority to investigate or prosecute plaintiffs or attorneys for filing enforcement actions to remedy title III violations by public accommodations. Therefore, the Department lacks jurisdiction to investigate or pursue claims of alleged frivolous or harassing litigation by private attorneys who file enforcement actions. Responsibility for investigating such claims lies with the State Bar of Florida or with the judiciary system in which the litigation is pending.
The Department takes very seriously the duty of all lawyers to comply with applicable court rules and codes of professional responsibility. The Federal Rules of Civil Procedure prohibit any attorney from filing a civil action in any United States court that is intended ''[f]or any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.'' See Rule 11, Federal Rules of Civil Procedure. Likewise, local rules of procedure and State canons of professional ethics also require attorneys not to abuse the process of the courts and to maintain professional standards of conduct at all times. Accordingly, this matter has been forwarded to the State Bar of Florida to advise them of the information provided in your letter. In this case, it is that body which has the authority to review the facts and investigate any potential violations of the standards of professional conduct for attorneys practicing in Florida. I am enclosing herewith a copy of the letter referring this matter to the Florida State Bar. If you have any additional information that you wish to provide, you may contact the Florida State Bar.
I hope this information is helpful. Please do not hesitate to contact the Department if we can be of assistance in other matters.
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Sincerely,
| Robert Raben, Assistant Attorney General. |
Enclosure
| U.S. Department of Justice, |
| Civil Rights Division, |
| Washington, DC, January 7, 2000. |
Board of Governors,
The Florida Bar, Tallahassee, FL.
DEAR GOVERNORS: The Department of Justice recently received the attached correspondence from The Honorable Mark Foley, Member, United States House of Representatives, regarding lawsuits filed by private attorneys practicing in federal courts in the State of Florida. The allegations contained in the press reports attached to the Congressman's letter question whether these attorneys have filed lawsuits to enforce the Americans with Disabilities Act (''ADA') in violation of any standards of professional ethics or any relevant laws.
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While the Attorney General has responsibility for enforcing the ADA, title III specifically authorizes private persons to file enforcement actions to require public accommodations to make facilities accessible to persons with disabilities, and the ADA does not authorize the Attorney General to investigate attorneys or other persons who file private civil suits to enforce title III. Therefore, I am referring the matter described in the correspondence from Congressman Foley to you for review and any necessary
action.
Please feel free to contact me if you have any questions about this referral. Thank you for your attention to this important matter.
Sincerely,
| Bill Lann Lee, Acting Assistant, Attorney General, |
Civil Rights Division.
Enclosures
CC:
Congressman Mark Foley
Hon. RANDY ''DUKE'' CUNNINGHAM,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN CUNNINGHAM: This letter is in response to your inquiry on behalf of your constituent, Ms. Terri Davis, who expresses concern that the Americans with Disabilities Act of 1990 (ADA) allows individuals with disabilities and their attorneys to profit personally from ADA litigation. Please excuse our delay in responding.
In her letter to you, Ms. Davis states that her business, Fairbanks Village Plaza, was sued for violations of the ADA and was compelled to pay money damages in settlement. She believes that the individual with a disability and the lawyer who sued her business have filed forty-eight similar lawsuits.
The, ADA is a balanced law that is carefully tailored to achieve its purpose of eliminating discrimination against persons with disabilities. In fact, Congress took precautions to prevent abuses for personal gain in drafting title III of the ADA, which covers private businesses. Under title III, individuals with disabilities who file private lawsuits are not entitled to money damages. Individuals may seek only declarative and injunctive relief; in other words, they may sue solely to ensure that an entity is in compliance with the ADA's requirements for accessibility.
Congress also took a balanced approach in fashioning the ADA's requirements, considering both the needs of individuals with disabilities, and the potential hardships placed on businesses. Existing entities, like Ms. Davis' business, are only required to make architectural changes that are ''readily achievable'—easily accomplishable without much difficulty or expense- only when business owners or managers themselves decide to renovate does the ADA mandate that alterations ensure access to individuals with disabilities.
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Ms. Davis suggests that the attorney involved in her suit might be acting unscrupulously. Please be assured that the Department of Justice takes very seriously the conduct of unscrupulous attorneys when it comes to actions involving the ADA. In fact, we are currently working with the Federal Bureau of Investigation on situations involving fraudulent use of the ADA. We also consider reporting unscrupulous conduct on the part of attorneys to their local bar associations.
However, the facts presented by Ms. Davis are insufficient to establish that an attorney is acting unprofessionally by demanding money damages. Although money damages are not available under the ADA, California law does provide damages for discrimination on the basis of disability. In addition, the fact that a number of complaints have been filed is also not sufficient to prove unprofessional conduct. It is impossible to draw conclusions about these cases without knowing the underlying facts. Your constituent might be interested to know that the Federal Rules of Civil Procedure prohibit the filing of frivolous lawsuits, and that entities sued in frivolous actions may recover attorneys fees. To the extent that the above-mentioned cases lack merit, then, they are not likely to hold up in court.
If Ms. Davis has questions about compliance with the ADA, or concerns that they are being given false information, we urge them to call the Department of Justice's toll-free ADA Information Line (800–514–0301 (voice) or 800–514–0383 (TDD). Members of the Disability Rights Section staff are available to answer questions on the information line on Monday, Tuesday, Wednesday, and Friday from 10:00 a.m. to 6:00 p.m., Eastern time. On Thursday, the information line is staffed from 1:00 p.m. to 6:00 p.m. Ms. Davis may also consult our ADA Home Page (http://www-usdoj-gov/crt/ada/adahoml.htm) for information.
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I hope that this response is useful in demonstrating that there is nothing in the ADA, as written, that encourages abuse. To the extent that some unfortunate incidents occur, we cannot allow a few bad players to color the ADA's many accomplishments, or its important goal of improving accessibility for individuals with disabilities nationwide.
Sincerely,
| Anita Hodgkiss for Bill Lann Lee, Acting Assistant Attorney, |
General Civil Rights Division.
Newspaper: Forbes
Date: March 20, 2000
Title: How Lawyers Keep Busy:
Byline: Michael Freedman
The Americans with Disabilities Act isn't just making buildings more accessible. It's also making lawyers more prosperous.
Beware, small-business owners, of little girls. And of law firms masquerading as do-good non profits. In the past seven months 53 Florida businesses have been hit with lawsuits alleging violations of the Americans with Disabilities Act. The plaintiff: a seemingly charitable outfit representing a 12-year-old girl who uses a wheelchair. Across the state, at least 275 other companies have been hit with suits by three other nonprofit entities. Like the one speaking for the disabled girl, these nonprofits were formed with the encouragement, if not the active participation, of law firms that stand to profit from ADA litigation.
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The rash of suits began last year when Grisel Martinez, the mother of the wheelchair-bound 12- year-old, got fed up with the problems her daughter had getting into public buildings. A reasonable frustration, and one the ADA seeks to address by requiring that public buildings provide accommodations like ramps and parking spots.
So Martinez, with help from Robert Bogdan, an attorney friend, formed a nonprofit advocacy group and called it Citizens Concerned About Disability Access. On behalf of the daughter, the group started filing suits indiscriminately against local businesses, including a liquor store, pawn shop and swimming pool supply store.
''It's ridiculous,'' argues Sean Spicer, speaking for U.S. Representative Mark Foley (RFla.), who's been fielding numerous complaints. ''She's not old enough to be in a liquor store. What's she doing in a pawn shop? And she doesn't even have a pool.''
Most business owners settled the suits by making renovations. If businesses are willing to comply with the law's demands to remove physical barriers for handicapped visitors, wouldn't it suffice to send them written warnings?
It probably would in most cases, but that would deprive lawyers of their fees. The ADA requires defendants in successful lawsuits to pay attorney fees. Bogdan, who says he's just trying to get businesses to comply with the law, charges up to $5,000 for each suit, though he typically accepts around $1,000 in fees. So far he and his partner have received about $20,000 in fees for these essentially boilerplate lawsuits. The Miami Beach law firm of Fuller, Mallah & Associates, with a nonprofit called Advocates for the Disabled, filed about 200 suits in an 18-month period through 1999. It has raked in at least $340,000 in fees. None of this money goes to any disabled person on behalf of whom a suit is filed.
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Foley is sponsoring a bill that would throw out such suits unless the offending business owner had been given a written warning and 90 days to make demanded changes. In the meantime, the litigation factories churn on.
Newspaper: USA Today
Title: Loophole lets lawyers sue over dubious problems:
OUR VIEW: They line their pockets. Small businesses pay. And for what?
Last July, Dave and Donna Batelaan of Lake Worth, Fla., were sued for having no parking spaces reserved for the handicapped at their small business.
Nothing strange about that. Except that the Batelaans are wheelchair bound. Their business, Action Mobility, which designs, sells and fixes devices to provide mobility for the handicapped, serves almost exclusively disabled people. And the lawsuit was the first they had heard about a customer with a complaint.
The Batelaans were caught in a blizzard of nearly 600 federal lawsuits slapped on south Florida businesses by a handful of lawyers in recent months. In California, two lawyers filed 230 suits on behalf of one client.
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That's because while the Americans with Disabilities Act doesn't allow disabled plaintiffs to collect damages for violations to any of its 618 access standards, it does permit lawyers to collect fees at rates of $275 an hour. And in a new maneuver, lawyers are taking advantage of the fact that many clue less local governments leave businesses vulnerable to lawsuits by issuing safety and building permits for premises that violate ADA standards.
For the Batelaans, legal fees totaled $1,600 for a fix that cost only $40. Others have been hit with charges of $5,000 and more.
The lawyers defend their suits and the fees attached to them as a public service acting as a wake-up call to business to get into compliance with a law that is 10 years old.
But many advocates for the disabled, including the Batelaans, worry that the lawsuits could open the ADA to reforms undermining its purpose.
Already, it has spurred some in Congress to seek modifications.
To halt the legal money mill, a bill sponsored by Reps. Mark Foley, R–Fla., and E. Clay Shaw, R–Fla., would require that businesses be given 90 days' notice of a violation before they can be sued. The idea is that businesses then could spend their money making their places accessible rather than on legal fees. A sensible approach considering the ADA's technicalities, provided the disabled are provided a cost-free way to file complaints.
More helpful would be for businesses to know upfront what their obligations are, so they can correct problems before complaints are lodged.
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Many don't now. And a key reason is that the ADA is enforced through the Justice Department or by private lawsuits, rather than through the local building and safety boards from which businesses get their permits.
Indeed, only a handful of states and localities have budding standards that are certified by the Justice Department as ADA-compliant, and those are only for alterations and new construction. As a result, businesses frequently are granted local building or occupancy permits that don't meet federal ADA standards.
The Justice Department and Congress need to involve local government and chambers of commerce in implementing ADA standards before another blizzard of lawsuits descends.
The ADA says that businesses must be accessible to the disabled. To work well, the law needs to be accessible to businesses. Legal ignorance benefits only the lawyers.
Newspaper: The Wall Street Journal
Date: May 9, 2000
Title: Clint Eastwood Saddles Up for Disability-Act Showdown
Byline: Jim VandeHei
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WASHINGTON—Dirty Harry wants revenge, Washington style.
This time, it is a gang of trial lawyers staring down Clint Eastwood, asking themselves about taking him on: ''Do I feel lucky?''
These ''sleazebag lawyers,'' the veteran actor says, his voice constricting, messed with the wrong guy when they ''frivolously'' sued him and hundreds of other small-business owners for failing to comply quickly enough with the Americans with Disabilities Act.
Mr. Eastwood, famed for his tough-gun cop and cowboy roles, says he isn't against the ADA; his fight is with trial lawyers whom he and some GOP lawmakers argue are ''extorting'' businesses with unwarranted lawsuits.
''I Won't Back Down''
Now, Mr. Eastwood, whose Mission Ranch Hotel in Carmel, Calif., has been sued for violating the ADA, is striking back with a Washington lobbying campaign for new legislation to modify the law. ''I figure I won't back down because of all these people . . . who can't defend themselves,'' says the 69-year-old Mr. Eastwood. Well, ''I can, and they will be seeing me for a long, long time.''
Or as Dirty Harry dared: Go ahead. Make my day.
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The ADA, which was signed into law in July 1990, prohibits discrimination against people with disabilities. Advocates for the disabled loathe the idea of revisiting the act for fear that, once opened, lawmakers will try to chip away at their wall of protection. The Association of Trial Lawyers of America hasn't taken a position on the legislation, but a spokesman doesn't rule out supporting it.
Mr. Eastwood, the former mayor of Carmel, is corralling lawmakers to pass a bill, sponsored by GOP Rep. Mark Foley of Florida, that would provide business owners 90 days to comply with the act's access standards for the disabled. Under current law, lawyers can charge Mr. Eastwood or any noncompliant business owner, $275 per hour of work from the day they file the suit; the disabled, however, are forbidden from collecting damages under the act.
No Warning
Critics say, the lawyers, in many instances, provide these businesses with no warning or time to make the requisite changes before slapping them with a lawsuit and charging fees. Rep. Foley says some lawyers have exploited the ADA and targeted stretches of small businesses, such as strip malls in South Florida.
In Mr. Eastwood's case, a lawyer is asking for $577.000 in fees. The lawyer and his disabled client want Mr. Eastwood to widen some doors and make the bathrooms more accessible at his historic, 32-room hotel and restaurant.
Mr. Eastwood says the legislation would do nothing to rectify his situation, but it would prevent others from falling victim to this ''form of extortion'' for a fistful of dollars. ''It's a racket,'' he argues. The typical thing is to get someone who is disabled in collusion with sleazebag lawyers and they file suits.''
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Paul Rein, the attorney suing Mr. Eastwood, says his client suffers from muscular dystrophy and was unable to access several areas at the Mission Ranch. Therefore, the changes must be made, he says. ''He has the same attitude as Dirty Harry. He does not want to comply with the law and thinks he's above the law.''
Additional Time to Comply
Many trial lawyers reject the need to change the ADA. Anthony Brady, a lawyer from Camden, N.J., who has sued more than 100 companies for failing ADA compliance, concedes that some ''greedy'' lawyers prey on small businesses that should be given additional time to comply without charge.
But, he opposes Mr. Foley's ''silly'' legislation because it would provide large corporations the same 90-day protection. Escalating legal fees, he says, is the only weapon the disabled have to force big companies to accommodate them. If a few undeserving small businesses get popped in the process, ''it's the law,'' he says.
That is precisely the attitude that prompted Mr. Eastwood to confront the trial lawyers.
Already, Mr. Eastwood has to ride shotgun with Mr. Foley and has helped persuade GOP Rep. David Dreier of California, chairman of the powerful Rules Committee, to come along. He has personally lobbied Leon Panetta, President Clinton's former chief of staff, who heads a public- policy institute at California State University at Monterey Bay. The House Judiciary Committee will hold a hearing on the topic later this month, and Mr. Eastwood wants to testify.
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The National Federation of Independent Business, the U.S. Chamber of Commerce, the National Restaurant Association; and the International Council of Shopping Centers have joined the lobbying campaign, too.
With Mr. Eastwood on board, GOP lawmakers are pressing to put the legislation on the House floor this year under a special procedure called 'suspension,' which would prevent a lengthy floor debate or amendments. ''No question [that Mr. Eastwood] is helpful.'' Rep. Foley says. ''But I don't want to make this a sideshow of personalities.''
Persuading Advocates
Indeed, Mr. Foley understands the sensitivity of modifying the ADA, regardless of how meritorious he thinks his bill may be. He says hundreds of small businesses in his Palm Beach district, including one run by a disabled couple, were ''victimized'' by lawyers. However, he refused to unveil his legislation until he persuaded local advocates of the disabled to join him at a news conference.
For this reason, Mr. Foley and Eastwood want to recruit a well-known politician who helped write the original law or a high-profile disabled person to work with them. Mr. Foley has approached Democratic Sen. Max Cleveland, of Georgia, a triple amputee, who is reviewing the bill. Bob Dole, the former GOP Senate majority leader who helped write the ADA, and disabled actor Christopher Reeve will be approached soon, he says.
''We don't want to turn this into a fight'' with the disabled, Mr. Foley says.
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Meantime, Dirty Harry will be on the warpath, hunting down victims and seeking justice. ''I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.''
Newspaper: Orange County Register
Date: Wednesday, March 15, 2000
Title: ADA suits a drain on businesses
Byline: Penni Crabtree
Owners say they do try to grant access to the disabled, then face legal action anyway.
Ed Vanags never had a customer complain about the parking lot at his Anaheim lighting store until he opened the mail recently and found he'd been sued.
The lawsuit, which alleges that Vanags violated the 1990 Americans with Disabilities Act, cited the faded blue paint of the property's handicapped parking spaces.
Vanags moved quickly to bring his property into compliance and paid $400 to repaint the blue stripes. But Vanags said attorneys for disabled plaintiff Kornel Botosan are demanding $7,000 to settle the suit, and that prospect has left the small-business owner reeling.
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Nor is Vanags the only Orange County business owner feeling dizzy these days. A decade after passage of the federal act, a small group of disabled activists and their attorneys is taking aim at those who failed—willfully or in ignorance—to make their businesses easily accessible to all.
Scores of local businesses are being peppered with lawsuits filed by advocates for the disabled who want to use the courts to force ADA compliance. San Diego attorneys Mark D. Potter and Russell C. Handy have filed 250 federal lawsuits in Southern California's Central District court since March 1998—65 of them against Orange County businesses that include gas stations, restaurants, furniture stores and small strip malls.
One of the attorneys' most persistent clients is Botosan, a Riverside County computer specialist who actively searches across Southern California for businesses that fall below ADA standards.
Botosan has filed 169 lawsuits in recent years in Southern California, 46 of them in Orange County alone last year.
This year, Botosan, a wheelchair user, has already filed 14 lawsuits against local businesses, alleging that he faces ''embarrassment, frustration, suffering and emotional injuries'' as the result of inaccessible facilities.
When Congress approved the act in 1990, it allowed a two-year phase-in period for government agencies to get the word out about the new regulations and for businesses to remove barriers, install ramps, designate parking spots and make bathrooms accessible to all.
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But now, eight years after the phase-in period, activists say the time for excuses is long past.
''Business owners don't like being sued—no one does—and they don't like having to deal with complying with the law when they might not see a handicapped person come into their business for a year,'' said Handy, a partner in the Center for Disability Access law firm. ''But the people I represent are vitally interested in seeing these laws are complied with.''
In most cases, the Center for Disability Access, as well as two other San Diego law firms that specialize in ADA law, take on older businesses. Some are clearly not in compliance.
Others have attempted, but not met, compliance standards.
And it is the second category that frustrates many local businesses.
Several defendants contacted by The Orange County Register said they had believed that they were in compliance and had such things as wheelchair ramps, handrails in bathrooms and designated handicapped parking spots.
Tough Standards
But good-faith efforts don't necessarily translate into compliance, according to attorneys.
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The ADA requirements are strict—wheelchair ramps must have an exact tilt, parking space dimensions must be specific to the inch—and supersede any city or state code that may not be as stringent. Since the violations, intentional or not, can almost always be documented, more than 80 percent of the businesses that are sued settle out of court, attorneys representing both sides say.
For businesses it is an economic call: If they fight and lose, they must pay attorney fees for both sides, and any penalties, and could be liable for punitive damages.
Yet even settlements are costly, resulting in a minimum ADA penalty of $1,000 per violation, the plaintiff's attorney fees and an agreement to bring the property into compliance.
Onerous $7,000
Most businesses sued by the activists said they have no problem with bringing their property up to code.
But many said that the additional $7,000 to $10,000 the plaintiffs and their attorneys demand as settlement is not only onerous, but greedy.
Some local businesses charge that they are being unfairly targeted by people who are out looking for violations and using the law to make money.
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Vanags said $7,000 to settle the case is a harsh price for a small business to pay.
Newell Liljenquist, a property owner who is also a wheelchair user, had refitted his Tuskatella Shopping Center in Orange with wheelchair ramps, wide bathroom doors and designated handicapped parking spots long ago.
Yet he was named this year in a lawsuit brought by Yucca Valley resident Don Wyatt, another regular Center for Disability Access client, who alleges the marked disabled parking spaces were ''inappropriately configured.''
''It's ridiculous,'' fumed Liljenquist.
Handy insists his clients, and the law firm, are there to remove barriers to equal access, not for financial gain.
Others remain skeptical.
''If Mr. Botosan views himself as on a mission, fighting for the rights of the handicapped, he should be satisfied by bringing businesses into full compliance,'' said Alan Boon, an Irvine attorney hired by Vanags' insurer to defend the ADA lawsuit. ''Yet the law firm is making a demand of $7,000 to settle the case.
''Perhaps I'm being skeptical, but the thing we may really be fighting about is how much the attorneys can shake down,'' Boon said.
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''Some of this stuff gets warped—Mr. Vanags isn't the type of person that the statute was designed to punish. He isn't someone intentionally discriminating.''
Botosan declined to be interviewed. Handy said he has heard the financial ''shakedown'' charge before and has little sympathy.
He said most of the lawsuits can be settled quickly and for cost, often less than $2,000, if the businesses don't try to drag things out.
Handy said his firm has filed 1,000 lawsuits in the last five years, which resulted in 1,100 additional handicapped parking spaces and hundreds of additional ramps and arm rails in Southern California.
''Every disabled person who comes after a lawsuit will find nice clear parking spaces, rails, ramps and bathrooms they can access—all that is fixed when we walk away from a case,'' said Handy.
''There is a cost associated with being sued—there is no way around it,'' Handy added.
''And if I had any advice for those who haven't been sued, it would be ''assess your facilities posthaste.''
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Newspaper: Palm Beach Post
Date: December 2, 1999
Title: ''Advocacy'' for profit
The Americans with Disabilities Act was supposed to give the handicapped access to jobs and public places. Instead, at least in one instance, it has created access for lawyers trying to make a bundle.
As described Wednesday in the The Post by columnist Frank Cerabino, two Broward County lawyers have targeted businesses along Lake Worth Road west of Lake Worth. The lawyers have sent them notices of ADA violations on behalf of a group calling itself Citizens Concerned about Disability Access, Inc. The lawyers and a neighbor, whose daughter is in a wheelchair formed the organization. The group claims the daughter has been denied access to the businesses, which include a pawn shop and a liquor store.
Notifying businesses of certain deficiencies could be a public service. But in this case, there was not warning and no grace period for the businesses to come into compliance. No matter how swiftly the businesses make repairs, the lawyers, Robert Anthony Bogdan and Lance Wogalter, bill each business for legal fees that can reach $5,000. The lawyers have sued more than 30 businesses and are considering cases against twice that number.
The tactic could spark a backlash against the ADA. Shelley Gattsagen, executive director of the Center for Independent Living, is well-known as a fierce advocate for the disabled. She says, ''We're strongly in favor of accessibility, but we're also in favor of approaching people and asking them to do something about the problem before suing them.''
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Mr. Wogalter had the nerve to compare his activities to those of civil rights lawyers in the ''50s and ''60s. ''Years ago,'' he overstated, ''you had blacks who couldn't go to the bathrooms. Now you have people who can't go because of their disability.''
Exploitation of the ADA, which Congress passed in 1990, is nothing new. People who abused alcohol or were nearsighted have tried to use the law for their benefit. So have people too fat to fit into movie seats or rendered infertile by AIDS. Some court decisions have made the law more sensible, but such cases also have spurred calls for reform. If lawyers prey on small businesses, reform could change to retreat.
One other thing. When the Florida Bar lobbies the Legislature to prevent further limits on the public's right to sue, don't let Mr. Bogdan or Mr. Wogalter in the building.
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