19333 West Country Club Drive #1522
Aventura, Florida 33180
Tel. 305 705-0059 Fax 305-792-2665
E-mail:   info@adaaccessnow.org
www.adaaccessnow.org

WHAT YOU NEED TO KNOW ABOUT THE

ADA NOTIFICATION BILL

{PLEASE COMMUNICATE (by regular mail, by e-mail or phone or fax) WITH YOUR CONGRESSIONAL REPRESENTATIVE, URGING DEFEAT OF THIS PIECE OF LEGISLATION!!!!}

There is a proposed bill before Congress which is being supported by quite a few members of Congress, most vocally and strongly by Congressman Mark Foley of Florida .  The bill is known as the ADA Notification Bill (HR #728) and, on the face of it it sounds innocuous enough.  However, there are grave and serious problems inherent in this bill.  We believe that it is essential for the members of the disability community and those who support them to understand the issues involved.

We hope that you will forgive the time-consuming nature of the following, but we believe that the issue is important enough to warrant a complete dissection and analysis of the defects of the ADA Notification Bill (HR #728).    The facts as presented  below did not originate with us, but rather emanate from the testimony about   the ADA Notification Bill which was given before Congress two years ago by one of our members who is also one of our consultants.  (With his permission) we have paraphrased his statement in the interests of some attempt at brevity, but we have retained the spirit and the substance of what he had to say at that time, since we do not feel that we can substantially improve upon it.  We believe the following to be an accurate assessment of the problems inherent in the proposed bill HR #728:

This is an unneeded bill that will do great harm to the civil rights of people with disabilities.  We, along with millions of people with disabilities, strongly urge that its supporters rescind their support of this bill.   If this bill were to become law, we would see people with disabilities losing the civil rights which were granted to them by Congress in 1990 through the passage of the ADA .

While there is a handful of lawyers who are abusing the intent of the ADA , there is no nationwide problem and there is no problem of the size that would require an Act of Congress.  Instead, each business has learned to do nothing to comply with the ADA or to provide access for people with disabilities until it receives a notice of impending litigation.  If a lawsuit must be preceded by notice, then businesses will continue to violate the ADA until they receive a pre-litigation notice.  Further discussion follows below as to the many problems which such notice carries with it.

When members of the disability community were working with Congress on the ADA it was made clear to them that there would be little money going to the Department of Justice to enforce the ADA .  Congress therefore made sure that there was an alternate way of enforcing the ADA other than action by D.O.J . The enforcement section of the ADA allows individuals with disabilities to file private lawsuits in federal court to enforce their rights as provided by the ADA .  So that such litigation would be about  ACCESS and NOT about money, Congress did not include any provision for payment of damages to plaintiffs in such cases.  The only time a plaintiff can receive damages from a business for ADA violations is when the U.S. Department of Justice is a party to the case (which is quite rare). The fact is that the ADA does NOT provide for any payment of damages to plaintiffs in private lawsuits.

It is asserted by its supporters that this bill is needed because of all of the lawyers who are abusing businesses by filing lawsuits simply so that these lawyers can get rich from the ensuing legal fees.  Lawyers who work for corporations, local and state governments and for small businesses, all charge an hourly fee for the hours worked.  Many of the lawyers defending corporations against ADA lawsuits charge much higher hourly fees than those  charged by ADA plaintiff lawyers.

It seems, rather,  that this bill has been filed from a belief that businesses should not have to pay anything for violating the civil rights of people with disabilities.  The ADA became effective almost 11 years ago and required the removal of architectural barriers by the end of July 1992.  Now that businesses have been in violation of this civil rights law for almost 11 years, Congress is being asked to save these businesses the legal costs associated with their violations of the law and their discrimination against people with disabilities.

If HR #728 becomes law, the rights of people with disabilities to equal access will be relegated to the trash heap.  As has repeatedly been demonstrated, no ADA compliance work would be done until a notice was given. Of course, most people with disabilities are not experts on the technical requirements of the ADA Accessibility Guidelines.  The fact that a person using a wheelchair cannot get up a ramp at a business entrance does not mean that that person knows and understands the 19 different requirements for the design and construction of ramps.  Yet, without specific knowledge of the requirements of the ADA and the technical requirements of the ADA Accessibility Guidelines (the ADAAG) the individual would not be able to give the notice required by this bill!   Unless Congress were to allocate funds for the mass training of people with disabilities as to their civil rights under the ADA and the technical requirements of the ADA Accessibility Guidelines, this bill would effectively put an end to most ADA compliance work.

One very important part of Title III of the ADA is that it does not require a person with a disability to make a "futile effort" prior to engaging in ADA enforcement through litigation. HR #728 would effectively remove that language from the ADA .  That would mean that if a disabled person comes to your place of business and finds that you do not have a door wide enough to get through in a wheelchair, he/she can address ONLY the ADA violation of the too narrow door.  If, after ninety days' notice is provided to this business, said business widens its door, then the disabled person can try again to be a customer there.  However, regardless of whether the door was widened in response to the notice or in response to being sued, if this bill were law, the disabled person would be unable to address any other barriers within the facility.  So, if he/she got inside only to find counters too high to use, aisles too narrow for a wheelchair, tables with  no wheelchair accessible seating and restrooms that were not accessible, he/she would have to start all over again with notice and possibly with litigation.  If he/she did succeed in entering the premises, only to find himself/herself unable to get around and subsequently left, then things like the restrooms would have to wait even longer until the interior barriers were fixed and he/she could try to be a customer once again, and ONLY THEN possibly get as far as the restrooms.

The effect of this proposed removal of the "futile effort" provisions of Title III of the ADA would be to make most ADA enforcement almost impossible.  The result of  breaking down ADA enforcement to only that which a person directly experiences, can identify as a violation and about which he/she can provide technical details in a written notice, will be that most architectural barriers will remain as a future burden to individuals with disabilities.  An all-too-true picture will be the business which receives notice from a woman about the restroom being inaccessible, resulting in the women¹s restroom being altered but the men¹s restroom being untouched until a man with a disability is confronted by the un-removed architectural barriers that prevent him from using the men's restroom.   Sounds nonsensical, doesn't it?   Yet, that would be one of the effects of the passage of HR #728!

Of equal concern would be the inability to sue for ADA violations based on construction drawings.  When an arena costing hundreds of millions of dollars was sued for ADA violations before it was built, the owner of that facility saved millions of dollars.  What was inexpensive to fix in a not-yet-constructed building would have been extremely costly after the building construction was completed.  HR #728 would have forced us to sit back until construction was completed and until we were confronted with the design errors before the violations of the ADA could have been addressed.

What needs to be clearly understood, first and foremost, is that the ADA was written and passed by Congress as a CIVIL RIGHTS LAW! The entire concept of giving notice to businesses before people with disabilities can enforce their civil rights flies in the face of our nation¹s historical posture concerning the enforcement of civil rights.   Had the housing and commercial business "testers" utilized by the NAACP been required to give notice before filing litigation, we would not have seen take place the residential and commercial integration which we have seen.  If notice had been required before enforcement action could take place concerning gender discrimination, it is highly unlikely that we would have seen many improvements concerning equal opportunity and equal pay for women.  This bill actually serves to REWARD those business owners who have ignored the requirements of the ADA for more than a decade.

Yes, a small business that needs to do $25,000 in alteration work in order to comply with the ADA might have some difficulty coming up with that money at one time. But that same business could have put aside just $2,500 per year for the first 10 years since the ADA was signed into law.  Had that been done, then the alteration work could have been completed almost 3 years ago.  (Also, it should be noted here that Congress did provide in the ADA , TAX ASSISTANCE for businesses attempting to become compliant.)   Does Congress now, by providing protection from litigation, really want to reward the business owner who has ignored this law for so long?  Is there really any excuse for a business owner to fail to provide a single parking space usable by people with disabilities or to build a simple ramp where there is a step at the front door?  This level of accessibility has been required for 11 years. There is simply no excuse!  In Florida a notice of ADA compliance responsibility was sent out with the corporate renewals to all corporations in the state. The same notice was included in the occupational license mailings of every county.  With all of that notice having been provided by the State of Florida , one would think that most businesses would by now have done their required ADA compliance work.  Sad to say, that is not the case.  The providing of that notice did not result in any increased voluntary ADA compliance work!

Medium and large businesses would also benefit from HR #728.  It is often asserted that this bill is to protect small businesses. However, those making that assertion and supporting the bill have failed to respond to numerous requests to modify this bill so that it would apply ONLY to small businesses.  As a fairly typical example, this bill, as written, would protect from litigation the Fortune 500 company that owns 1,000 facilities and has done no ADA compliance work over the last 11 years, in the belief that waiting to be sued (and then litigating fiercely, which is precisely what does happen) is sound policy. The money required to do such alteration work would, typically, be invested, with the income yield over the past 11 years being far more than the cost of legal fees for ADA litigation, even if all 1000 facilities eventually faced litigation. Since the ADA does not provide for damages, and such a company is being sued one business location at a time, its CFO would conclude (and, in reality, many have) that waiting to be sued was a far better business decision than doing the morally right thing by ending discrimination against people with disabilities. This inequitable economy of size has not been shared by small and medium size businesses. However, the ADA Notification Act, if it were to become law, would give small and medium size businesses the same ability to profit by not removing architectural barriers.  This bill would actually foster continuing discrimination by the business community against people with disabilities.

The damage that would be caused by this bill becoming law goes even beyond the removal of architectural barriers.  For example, if a person with a disability who has a service dog (service dogs ARE covered and defined under the ADA ) were denied access to a place of public accommodation (a practice  which occurs hundreds of times daily on a nationwide basis) a 90-day notice would be required before a lawsuit was possible.  It is almost impossible to count the number of taxi cab drivers who tell people, "No dogs in my taxi!" or the number of restaurateurs who say, "No dogs in my restaurant!" or the number of managers of shopping establishments, large and small, who say, "No dogs in my store!".   No promise of compliance in response to complaints or notice has ever worked in solving this problem.  On the contrary, once a lawsuit is filed and an equal access POLICY is incorporated into a settlement or court injunction, then, and ONLY THEN, is the problem solved.  How will a 90-day notice requirement help a person who is deaf and who is ill when faced with a physician who refuses to provide a sign language interpreter?  If one pays $350.00 to spend a night in a new hotel only to find that the shower in the "accessible" guest room is unusable by a person using a wheelchair, should one really have to wait 90 days to try to begin to make this hotel comply with the law?  With the statute of limitations running out, would not the hotel's owners prefer a prompt lawsuit when they have recourse against the architect who made the mistakes, rather than a lawsuit being filed after the time has expired during which the architect could be named as a defendant? Only a brief moment of common sense thought is required to answer that question!

The most committed supporters of this bill are not small businesses but the owners of hotels across America.  In 1999 the president of the American Hotel and Motel Association told the World Congress on Travelers with Disabilities that his industry had gone from a 0 to a 3 on a ten point scale as far as hotel accessibility in the 7 years that Title III of the ADA had been in force.  His comment was an admission that 70% of his industry was in violation of this civil rights law 7 years after compliance was required!  Now, 11 years after compliance is required, the primary business supporters of this bill are the members of the American Hotel and Lodging Association (formally the American Hotel and Motel Association).  This is the industry which has failed, perhaps more than any other  in America, to make its facilities, goods and services equally accessible to individuals with disabilities.  Not too long ago, a major, name-brand hotel in a prime beachfront location, a very successful hotel, was found to have no parking that met the minimum requirements of the ADA, no path of travel to an entrance door that was wheelchair accessible, no front desk or counter that could be used by people who use wheelchairs and not one hotel guest room that was accessible to people with disabilities.  The ADA requires that this hotel have no less than 7 accessible guest rooms.  The owners of this hotel are members of the American Hotel and Lodging Association and they support HR #728. These are NOT small businesses.  These are NOT business owners who do not know of the requirements of the ADA.  These are NOT businesses that cannot afford to remove their architectural barriers. These are simply business owners who have willfully ignored the requirements of a federal civil rights law and are now seeking protection from the consequences of their behavior.

The supporters of this bill  argue that the abuses of businesses by predatory lawyers is so huge a problem that this bill must be passed into law.  Sadly, some predatory lawyers have abused some businesses.  However, this is a small number of lawyers which does not represent the vast majority of dedicated attorneys who are representing individuals with disabilities facing daily discrimination.  (There are also predatory personal injury lawyers, predatory divorce lawyers and predatory medical malpractice lawyers.)  Each of these lawyers is subject to the Rules of Civil Procedure, to the decisions of judges and to the ethical standards of the Bar Association.  Congress is not typically in the business of policing the conduct of individual lawyers.  One judge in the Middle District of Florida became concerned over the billing of one ADA plaintiff lawyer, one of the predators that HR #728 is supposed to stop.  The judge ordered the lawyer to bring in his years of billing history in ADA cases.  Finding that the lawyer charges over and over for writing the same complaint and for writing the same settlement stipulation, the court dramatically reduced the fees being paid to that lawyer.  THAT is how businesses can be protected from predatory lawyers filing lawsuits under the ADA.

When the community of disability advocates has learned of attorneys who obviously care more about earning huge fees than about ADA compliance, we have not sought a new law or a change to the ADA.  We have simply used the decision of the Supreme Court of the United States, the "Buckhannon" decision, to deprive these lawyers of any fees.  After such lawyers have found themselves receiving no fees, not even payment of court filing fees, they have changed their approach to ADA litigation.  In fact, when the "Buckhannon" decision was handed down, many disability rights advocates and lawyers felt that the problems which are now being addressed in the proposed ADA Notification Bill had been solved.

The "Buckhannon" decision established that there is no prevailing party in ADA litigation cases until a prevailing party is established through a ruling or decision of the court.  Therefore, an ADA Title III case where the architectural barriers were removed prior to the court having an opportunity to render a verdict or decision, would not have a prevailing party.  With the plaintiff not being the prevailing party, there is no taxing of plaintiff fees and costs to the defendant.

It is further asserted that this bill is to protect small businesses from being sued simply for not painting the parking space for people with disabilities.  If that is what this bill is all about, then this bill is overkill.   Any small business that simply has to paint a parking space can easily do so long before any judge would render a decision on an ADA lawsuit.  In fact, many defense consultants have helped small businesses build ramps, add accessible parking spaces, even reconstruct inaccessible restrooms, long before any decision was rendered by the court.  In the many defense cases in which the defendant has taken advantage of making the needed accommodation changes before the court establishes a prevailing party, no plaintiff legal fees or costs have been paid by the defendant.  For cases addressing architectural barriers that are easy to remove, which is all that is required by the ADA, small businesses can respond to a lawsuit, fix their violations, receive tax credit and not have to pay any plaintiff fees or costs.  Is that not just what HR #728 is supposed to accomplish?  In fact, it has already been done through the opinion of the Supreme Court of the United States.

If the goal is to stop predatory lawyers from taking advantage of small businesses (a goal with which we heartily agree) then bringing those places of business into quick compliance under the "Buckhannon" rule is the way to do it.  The effective use of the "Buckhannon" decision does not block people with disabilities.  Instead, this method of responding to ADA lawsuits keeps predatory lawyers from taking advantage of small businesses while allowing them to work as hard as they wish to on behalf of individuals with disabilities.  However, all that would be accomplished by the passage of HR #728 would be to prevent people with disabilities from enforcing their civil rights under the ADA.

Problems with how lawyers are using (or abusing) the courts should be addressed by the courts and not by Congress.  The Supreme Court of the United States has already done just that.  Any small business willing to make its facility accessible to people with disabilities in the face of an ADA lawsuit can do so without having to pay any money to the plaintiff or the plaintiff¹s lawyers.

We strongly urge all to consider the points which we have addressed in this admittedly lengthy, but we believe, factually thorough and accurate argument against the passage of HR #728.  An enlightened view of the problems outlined in this correspondence should lead one to the inescapable conclusion that the ADA Notification Act causes more problems than it cures.  Let's not "throw out the baby with the bath water"! Let's fix what's needs to be fixed (the problem of predatory and mercenary attorneys) without emasculating the intent of Congress and the substance of the ADA as it now stands. 

Surely, it must be understood that the number of those who represent the worst face of the attempts to bring about compliance under the ADA is far outweighed by those of us who represent the best face of those efforts!

PLEASE LET YOUR CONGRESSPERSON KNOW THAT THIS BILL IS UNHEALTHY FOR THE DISABLED COMMUNITY!!!!