DENVER – Concerns are being raised over proposed legislation in Congress that attempts to curb lawsuits tied to the Americans with Disabilities Act.
The bill comes after reports of lawsuits filed against businesses for what owners say are minor, easily correctable ADA violations.
But the disabled community fears that the measure would create unnecessary hurdles to removing barriers, while minimizing significant access issues.
“This law has been around for 26 years. If we give everyone a grace period to fix problems, this tells businesses they should not have to comply, which puts the burden on the disabled person to go out, not be able to access what we need, then find the true owner and notify them. Why should we have to do this 26 years later?” asked Julie Reiskin, executive director of the Colorado Cross-Disability Coalition.
The legislation – co-sponsored by Rep. Ken Buck, R-Colorado – would amend the 1990 ADA to offer business owners a chance to correct problems before facing civil action.
A lawsuit would not be valid until the complainant sends a letter to the owner identifying the violation. The owner would have 60 days 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.”
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.
The bill is awaiting a vote by the full House after passing the House Judiciary Committee 15-6.
Reiskin acknowledged that there have been instances of so-called “drive-by” litigation. But she said a better solution would be to mandate that business owners fix the problem.
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. But settlements may not require owners to fix the problem.
“We do not support the strategy of suing people, asking for a financial settlement, and leaving the problem there,” Reiskin said. “Any legitimate ADA lawsuit should seek to solve the problem.”
She added that supporters of the legislation are downplaying the problems, pointing out that what is perceived as “minor” violations, are actually something much larger.
“One inch too small may be the difference between my wheelchair getting through a door or not,” Reiskin said.
Supporters of the bill, however, say the law is being abused. 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.
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.
Owners point out that because of the lawsuits, they’re left with less money to fix the problems that they’re being sued over.
“These ‘drive-by’ lawsuits do little to actually improve access and are more about lining the pockets of aggressive attorneys,” said Rep. Ted Poe, R-Texas, the prime sponsor of the legislation.
But Stephen Hamer, a disability advocate for Stephen’s List, a Southern Colorado advocacy group for individuals with disabilities, said the legislation is “designed to limit my ability as a person with a disability to enforce my rights.”
“The message of this bill – that people like me with disabilities should be treated as second-class citizens – could hardly be clearer,” Hamer said.
He highlighted that most civil-rights laws do not impose similar burdens on complainants.
“Violating my rights and the rights of other people with disabilities – and denying us the access to places of public accommodation that we all take for granted as American citizens – should be treated no differently.”
pmarcus@durangoherald.com
