On February 15, 2018, the U.S. House of Representatives passed the ADA Education and Reform Act, HR 620, by a vote of 225 to 192. The bill aims to curb “drive by” public accommodation suits by requiring that potential plaintiffs first give notice to the allegedly offending business – along with the opportunity to fix the problem – before filing an ADA suit.
Specifically, the bill amends the ADA’s section on “barriers to access to existing public accommodations” such that a “civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless:
(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and
(ii) (I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or
(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.”
Additionally, the written notice must “specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”
According to the bill’s author, Representative Ted Poe (R-TX), there is currently “a whole industry made up of people who prey on small business owners and file unnecessary and abusive lawsuits. This bill will change that by requiring that the business owners have time to fix what is allegedly broken.” The idea that plaintiffs lawyers file ADA accommodations lawsuits without real harm done, and without an intention to fix the actual problem, is not a fanciful idea unaccompanied by evidence. For example, Denver7 ABC reported that nearly all recent complaints filed in Colorado were formulated by an Arizona law firm with tenuous connections to Colorado. The complaints included allegations that a “toilet paper dispenser [was] … a few inches too high or too low, or a disabled parking lot sign that fails to include a tiny ‘van accessible’ sign beneath it.” Another study by 60 Minutes showed California attorneys searching Google Earth for ADA violations in other states. Federal ADA Title III lawsuits increased by 18% from 2016 to 2017. Arizona passed similar legislation in 2017 aimed at curbing state-based ADA suits (SB 1406), and we’ve since seen a decline in serial lawsuit filers.
Representative Poe insists that the bill still allows for eventual lawsuits for non-compliance with the ADA. But the bill has critics who claim that without the threat of an immediate lawsuit, business will have little incentive to comply with the ADA until warned. More than 200 organizations signed a letter in opposition to the bill.
It remains to be seen how the Senate will view the bill. But if passed, the legislation would take significant settlement pressure off of businesses who unwittingly violate the ADA and only receive notice through a threatening letter sent by a plaintiff’s lawyer.