Marianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 376, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here. Wilson reported Tom McGee, president and CEO of the International Council of Shopping Centers (ICSC), a group endorsing the proposed legislation believes the bill will “ensure resources are focused on improving access while protecting businesses from abusive lawsuits.” The article notes ICSC cited our blog’s data, which shows that from 2013 to 2014 the number of ADA Title III lawsuits surged by more than 63%.
What would the bill require?
The bill would require that DOJ’s Disability Rights Section, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability, such as training for Certified Access Specialist professionals.
The bill would also make it unlawful for any person to send a demand letter alleging a violation of the ADA unless the letter specifies details about the alleged denial of access circumstances, the address of the property, the specific sections of the ADA violated, and whether a request was made to remove an architectural barrier, and whether the barrier to access was permanent or temporary. Failure to comply with that provision subjects the demanding party to a fine. It also would amend the ADA to provide that a civil action based on failure to remove architectural barriers in existing public accommodations may not be brought unless the complaining party has first provided specific notice to the owner or operator of the public accommodation, after which the owner or operator would have 60 days to provide a written description of improvements to remove the barrier, and the owner or operator has not made those improvements within 120 days.
Finally, the bill directs the US Judicial Conference to, with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access. The goal of the program would be promote access quickly and efficiently without costly litigation. As many are aware, such a program already exists in the U.S. District Court for the Northern District of California. Its General Order 56 requires a stay of discovery except for certain disclosures until after a joint inspection, meet and confer, and mediation with the Court’s ADR unit has occurred.