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Read this edition of AFB's DirectConnect newsletter online at http://www.afb.org/info/programs-and-services/public-policy-center/directconnect-newsletter/ada-notification-bills/1235
Be On Notice!
An Analysis of Passed and Pending ADA Notification Bills, Why Advocates Should Care, and What Advocates Can do

Prepared by: Sarah Malaier
Programs and Policy Coordinator, AFB

For further information, contact: Mark Richert, Esq.
Director, Public Policy, AFB
(202) 469-6833
MRichert@afb.net

While Congress is debating major issues of tax reform, healthcare, and the federal budget, one issue flying under the radar threatens the ability of Americans with disabilities to exercise their civil rights to participate equally in society. Several bills have been introduced in Congress and state legislatures to require any individuals who file lawsuits for public accommodations’ failure to remove architectural barriers under Title III of the Americans with Disabilities Act (ADA) to provide the owner of such establishments with a written notice of their intent to sue to allow the would-be defendants to remedy the problem without penalty. While the supporters of this approach ostensibly seek to prevent what they see as extortionary lawsuits over minor violations of the ADA’s physical accessibility guidelines, advocates for people with disabilities are deeply angered because such ADA notification bills would shift the burden of enforcing civil rights from public accommodations to individuals with disabilities who continue to be denied access even after a quarter century since the ADA’s enactment. As some advocates are putting it, “Isn’t more than 25 years enough notice?”

What are these bills, and what do they require?

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H.R. 620, ADA Education and Reform Act of 2017, was introduced by Representative Ted Poe (R-TX) in Congress this year. This bill resembles several bills that were introduced in the last Congress and in state legislatures and seeks, in the words of the bill’s title, “to amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, [and] to provide for a notice and cure period before the commencement of a private civil action”

The bill hass three main provisions. The first would require the Department of Justice to create yet another program to educate businesses and governments about providing access to public accommodations, which are facilities open to the public and engaging in commerce. The second provision would require individuals who encounter an actual architectural barrier as defined by Title III of the ADA and the associated accessibility guidelines to provide the owner or operator of the business in question with a specific notice of the barrier. The owner would have 60 days to reply with a plan for removing the barrier and an additional 120 days to remove or make substantial progress in removing the barrier. After this 180-day period, the individual facing the barrier could file a lawsuit for noncompliance. The bill also specifies exact criteria that the notice must meet before the lawsuit is considered valid. Finally, the bill requires the development of an alternative dispute resolution mechanism that would reduce the need for “costly litigation.”

If H.R. 620 passes at the federal level, state legislatures are likely to follow suit. The governor of Arizona has already signed into law a comparable bill that requires a notice-and-cure period for lawsuits filed under the Arizonans with Disabilities act and that otherwise sets up safety valves to guard against so-called vexatious litigants. The concern in Arizona arises from a dramatic rise in the number of lawsuits brought by a mere handful of plaintiffs. What proponents of the new Arizona law were unwilling to acknowledge is that safeguards against predatory litigants have existed for a long time. Indeed, Arizona’s own Attorney General recently worked with the courts to dismiss 1,000 lawsuits filed by a single group demanding outsized settlements to resolve lawsuits over arguably trivial violations of the ADA.

While the ADA notification bills receiving the most attention concern physical accessibility, in recent days, Oklahoma has passed the first state law aimed at interfering with website accessibility requirements. Beginning November 1, 2017, anyone wishing to bring suit in Oklahoma against a public accommodation for failure to ensure website accessibility must first provide proper notice of such alleged inaccessibility by certified mail 120 days prior to filing suit. Use of the Oklahoma state civil procedure rules to delay justice for people with disabilities is objectionable in itself. However, what is particularly offensive in the new Oklahoma law is that the usability of websites by people who are blind or people who are deaf is singled out by name in the text of the bill.

Who supports these bills and why?

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So far, fourteen members of congress from both parties have signed on to H.R. 620 as cosponsors. In general, the representatives hail from states where there have been sharp increases in the number of ADA-related lawsuits. In fact, more than half of the current cosponsors represent California. According to the law firm, Seyfarth Shaw, more than 2000 federal lawsuits alleging ADA violations were filed last year in California alone, and the number has been growing each year. (To read more of this law firm’s commentary on the ADA, visit: http://www.adatitleiii.com/) While a variety of factors are no doubt in play that explain the frequency of litigation, the trend is likely related to state law that allows plaintiffs to seek statutory and punitive damages, in addition to attorney’s fees and costs, for violations of the ADA. If the prospect of damages is indeed the reason for the rise in lawsuits, then the problem lies not with the ADA, a federal law that was specifically written to take damages off the table, but with individual state laws that expressly provide for damages. This means that changing the way that the federal ADA is enforced will not stem the tide of lawsuits that proponents of notification legislation argue are driven by the temptation of damage awards.

However, the growth in lawsuits is not restricted to states like California that allow damages. Beyond the issue of damages, some business owners who have been sued allege that the plaintiff filing the lawsuit demands a settlement payment up front without ensuring that the violation has been remedied. The perception that plaintiffs and their lawyers are taking advantage of the ADA to extort money from business owners is perpetuated by the fact that most of the lawsuits filed under Title III have been filed by repeat plaintiffs or by a small number of law firms. The validity of such claims is difficult to determine, however, and no hard evidence has been produced to prove that such allegations are true or widespread.

Whatever the reason for the uptick in lawsuits, trade associations representing the businesses sued for ADA violations have been pushing hard for ADA Notification bills and have hired lobbyists to work exclusively on this issue. Their work has borne fruit across the country, and some advocates for people with disabilities are candidly concerned about the deficit of disability community resources available to push back, particularly with the array of tectonic disability-related policy debates currently in play. By focusing the conversation on exploitative attorneys, “minor technical violations” of the ADA, and the alleged lack of resources available to business owners, proponents of the ADA notification bills and their hired guns have persuaded many legislators that the ADA is too onerous a burden on America’s economy. Disability rights advocates counter, however, that the ADA protects the rights of nearly 20% of all Americans, allowing them to participate in and contribute to the economic life of this country.

Proponents of ADA notification legislation also fail to acknowledge the lengths to which Congress has already tempered accessibility obligations with incentives and common sense expectations. Although the ADA requires new construction and alterations to meet accessibility standards, existing facilities do not need to be retrofitted nor barriers removed if doing so is not “readily achievable” within the context of such business’s resources. Moreover, Congress has established annual tax incentives to encourage compliance with the ADA. Any business is eligible for up to $15,000 in tax deductions when removing physical, structural, and transportation barriers, and small businesses may take an additional $5000 tax credit for almost any ADA-related expense, including providing braille documents and accommodating employees with disabilities. These existing provisions seek to ensure that compliance with the ADA is not a burden for businesses.

How urgent is this issue, and what can be done?

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Very urgent! Advocates from across the disability community and, in particular, the Consortium for Citizens with Disabilities, the nation’s largest disability rights coalition of which AFB was a founding member and plays a leadership role, have been working to oppose H.R. 620 for some time. Indications are that this bill could face a full-committee mark-up as soon as next week and that certain members of Congress want to pass the bill out of the House of Representatives by the end of June. Every expectation is that, if House leadership put the legislation to a vote by the whole House, it will pass.

Call your representatives and ask them to oppose H.R. 620. Find your representative at http://www.house.gov/representatives/find/ and call the Congressional switchboard at (202) 224-3121 to be connected to your Member. You can use the following talking points to start a conversation. - The ADA is civil rights legislation, and no other civil rights group is forced to wait 180 days to enforce their civil rights.

• The ADA is already carefully crafted to take the needs of business owners into account.This bill would create an indefinite wait-and-see period although businesses have had nearly 27 years to comply with the law.
• Extensive resources are already available to business both through tax incentives and technical assistance.
• Don’t put the burden of accessibility on people with disabilities who seek equal access to our society and economy.

Find out if your state legislature has a notice bill and contact your local legislators to let them know where you stand. Arizona recently passed a notification bill, and Oklahoma recently enacted a notification bill specific to website accessibility. California is considering ADA notification legislation, and Maryland, Texas, and Florida, may also make amendments to their state-level accessibility laws. Individual advocates are in the best position to monitor and respond to state-level proposals. Advocates are welcome to contact AFB with any information concerning the actual or potential proposal of state-level notification bills.