Legislation attempts to curb ADA lawsuits

Friday, Sept. 9, 2016 1:47 PM

DENVER – Legislation in Congress attempts to curb lawsuits tied to the Americans with Disabilities Act reported by businesses in Durango and elsewhere.

The bill – which is awaiting a vote by the full House – targets “drive-by” litigation, in which lawsuits are filed against businesses for minor, easily correctable ADA violations. Business owners often aren’t aware that they are out of compliance.

As reported by The Durango Herald, a Florida man filed dozens of lawsuits against small businesses across Colorado, including at least 10 in Durango: Orio’s Roadhouse, College Drive Cafe, Grassburger, Home Slice Pizza, Denny’s, two gas stations and the Strater, General Palmer and DoubleTree hotels.

Santiago Abreu, who filed the cases, identifies as a “tester” for ADA compliance.

Alleged violations include bathroom counters and soap dispensers that sit too high; grab bars that have improper length or spacing; and insufficient door, aisles or floor space for maneuvering.

Businesses often settle the claims, as attorney’s fees can be expensive. Owners might also be on the hook for the plaintiff’s attorney’s fees.

The ADA does not allow plaintiffs to sue for money damages, but the lawsuits can be used to coerce settlements from owners, as the ADA requires payment of the plaintiff’s legal fees. Demand letters sent by attorneys can force the settlement in an amount just short of the legal fees.

While the lawsuits are allowed under Title III of the ADA, some observers believe administrative remedies should first be exhausted.

The legislation moving through Congress – sponsored by Rep. Ted Poe, R-Texas – would amend the 1990 ADA to offer business owners a chance to correct problems before facing civil action.

Under the bill, a lawsuit would not be valid until the complainant sends a letter to the owner identifying the violation.

The owner would have 60 days after the notice is received to send a written description outlining improvements that would be made. Owners would then have 120 days to remove the barrier or “make substantial progress in removing the barrier.”

If no effort is made, then a complainant could pursue civil action.

The bill would also develop a program to promote mediation.

A fine would be imposed on any person who sends a demand letter alleging violations of the ADA without specifying the circumstances under which access was denied.

Rep. Ken Buck, R-Colorado, is co-sponsoring the legislation, which has broad support from lodging and retail groups.

“The Americans with Disabilities Act is a good law, but seeing people use it to discriminate against small businesses for minor, technical infractions is infuriating,” Buck said. “Many of these small business owners have spent their lives investing in not only their business but their communities as well, and the last thing they would want is for their store or restaurant to be inaccessible to anyone.”

Opponents of the legislation – led by organizations advocating for the disabled – say the measure would create unnecessary hurdles to removing barriers. They also point out that civil rights legislation does not impose a similar notice and cure period, or a fine for not complying with filing requirements.

An attorney for Abreu said in a statement posted by KMGH-TV Denver7 that the businesses have discriminated against disabled Americans and violated law.

“The Americans with Disabilities Act has been in force for over 25 years, yet the number of restaurants and taverns that have been in violation of the ADA and continue to violate the law is astounding. We have filed these lawsuits in our efforts to make a change, enforce the law and help disabled Americans to try and live as normal lives as they can.”