As previously reported, a national trend seen here in Minnesota involves public accommodations receiving letters from attorneys threating costly litigation alleging non-compliance with the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) regarding proper accessibility for the disabled. These demands typically offer to settle the matter for amounts far less than the costs of litigation.

A bill has now been introduced in the Minnesota House which seeks to avoid these shakedown threats, while at the same time ensuring accessibility compliance. The Civil Law Committee passed the bill and it is now on the House floor.

The proposed legislation sets forth a required procedure regarding demand letters which are sent by attorneys prior to the filing of a MHRA civil action. The demand letter must (i) specify the architectural barrier that is the subject of the alleged violation; (ii) cite the law alleged to be violated; (iii) provide a reasonable time period – not less than 30 days – in which to respond; and (iv) not include a request or demand for money or an offer or agreement to accept money. The demand letter may, however, offer to engage in settlement discussions prior to litigation. These requirements do not apply to letters sent by persons unrepresented by legal counsel. The bill also provides that the one-year statute of limitations applicable to MHRA claims is suspended during the time period provided for under this demand letter process.

When a compliant demand letter has been sent, a civil action may not be filed if the public accommodation, within the response time period set forth in the letter, (i) provides proof to the opposing lawyer that the architectural barrier has been removed; (ii) demonstrates that a barrier removal audit has been scheduled with a certified accessibility specialist, agrees to produce the audit report when completed, and further agrees to comply with any remedial plan in the audit; (iii) produces a barrier removal audit finding that the alleged barrier does not violate accessibility requirements or finding that compliance with such requirements is not readily achievable or cannot be accomplished by alternative means; or (iv) producing a barrier removal audit containing a remedial plan with a reasonable timeline for completion. Similarly, each of these bases also provides a public accommodation with an affirmative defense to a civil action for failure to comply with Minn. Stat. § 363A.11, subdivision 3 in removing an architectural barrier.

This demand letter process does not bar an individual’s right to file a charge of discrimination with the Minnesota Department of Human Rights or to bring a claim for damages resulting from an injury, challenging a barrier removal audit finding or remedial plan, or based on a failure to timely complete a remedial plan or remove a barrier. These demand letter requirements also do not apply to attorneys representing the State of Minnesota or one of its political subdivisions.

Takeaway: If you want to express your opinion regarding this proposed legislation, you should contact your state representative as this matter is being considered in the Minnesota House.