Advocates testify against ADA Notification Act
A majority of those who who testified May 18 on the ADA Notification Act (H.R. 3590) pointed out that the bill would do more harm than good. Statements of most of those who testified can be found at the website of the House Judiciary Committee's Subcommittee on the Constitution at http://www.house.gov/judiciary/con0518.htm.
The bill 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." It was introduced by Reps. Mark Foley and Clay Shaw, Republicans who have been allegedly upset by what they consider opportunistic attorneys filing ADA lawsuits.
"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," Fred Shotz told the Committee. Shotz, head of the Association of Disability Advocates in Florida, is one of the groups the lawmakers have characterized as filing too many ADA suits.
Action Mobility owners Donna and Dave Batelaan also testified. "The Batelaans said they were hit with a lawsuit by an attorney in New Jersey who, without notice, cited them for not painting lines in the parking lot and posting a sign on one "handicapped" spot," wrote Associated Press reporter Janelle Carter, who quoted the Batelaans as telling the committee that "we are intensely concerned about the results of the greed displayed by these suits being filed." Reports in the Associated Press suggested they supported the bill.
But in fact the Batelaans made a very different point to the Committtee: "The ADA is the most fundamentally important law passed to date granting Americans with disabilities their rights," their statement ended. "It is critical to all people with disabilities that the intent of the ADA be preserved."
Shotz pointed out that in the lawsuits filed, including that against the Batelaans, "each business 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," he continued.
"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." "Reasonable" is written into the requirements, he said.
"There has been a great deal of talk about the unfair lawsuit against Mr. Eastwood's Mission Ranch," Shotz said. "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."
Shotz, who said he had reviewed the case, told the committee, "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."
Attorney Andrew Levy, a wheelchair user who said he'd been representing disabled people for 20 years in various cases, told the Committee that "this 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 ADA is the only federal civil right law that "provides no damages for its violation," he pointed out. The only "true incentive" built into the law, he said, is "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," he said.
"I know of no other discriminated against minority group that has been required to enforce their own civil rights," Shotz told the Committee. "We are not complaining about being allowed to enforce our own civil rights, he said, but "about a bill that would make that enforcement much more difficult.
"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," added Shotz. "The only thing getting these businesses to comply with the law is litigation."
Assistant Attorney General Robert Raben said in a statement issued the next day that the Administration opposed the bill.
"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," said the statement. "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," said the statement.
"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," said Raben.
"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. 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."
Read the complete statements of those testifying
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