Testimony of Christopher G. Bell

My name is Christopher G. Bell. I am the managing partner of the Minneapolis office of Jackson Lewis Schnitzler and Krupman. I would like to thank the chairman and members of the subcommittee for the opportunity to testify in support of HR 3590, the ADA notification act.

I am in support of this legislation because I believe it furthers the rights of both owners and operators of public accommodations or commercial facilities as well as people with disabilities. I view the legislation from several perspectives. I have been blind for over thirty years and an attorney for over twenty-two years. As a blind person, I’ve always been interested in disability rights. I was privileged to work as the executive assistant to Evan J. Kemp Jr., chairman of the U.S. Equal Employment Opportunity Commission, who was a true champion of disability rights. Through Evan, I became involved in the legislative development of the ADA working with both House and Senate staff and with staff in the Bush White House. Subsequent to the ADA’s enactment on July 26, 1990, I was privileged to be placed in charge of developing the EEOC’s ADA Title I employment regulations and technical assistance manual.

I left the federal government in January 1993 to join Jackson Lewis Schnitzler and Krupman, a national management labor and employment law firm. From the beginning, my practice has focused on disability management and ADA compliance. Much of my work has been in the area of Title III of the ADA. As you know, Title III of the ADA requires that places of public accommodations and commercial facilities must meet certain architectural and communication accessibility standards as well as prohibiting disability discrimination. I have advised many clients over the years on compliance with these accessibility standards. I also have defended clients in over ten ADA Title III lawsuits.

Unfortunately, what I call ADA drive-by suits are all too common. Typically, the suits are filed by a small group of attorneys on behalf of an "ADA enforcement group" and one or more members of the group. Group members or an individual client goes from store to store, in strip mall after strip mall, and file a lawsuit against each place where the individual found some problem with access. As you know, these suits are quite common in South Florida. The volume of this litigation in South Florida is alarming. The four major "ADA enforcement groups"--Access Now, Alliance for the ADA, Advocates for the Disabled, and Citizens Concerned About Disability--have filed at least 112 lawsuits since January 1, 2000. I am providing the Subcommittee with a copy of the docket sheet from the U.S. District Court for the Southern District of Florida listing suits filed by these four groups over the last few years.

ADA drive by litigation is not limited to Florida. One attorney developed a cottage industry based upon a single client who went door-to-door in Hawaii suing public accommodations. He soon saw the grass was greener in California because monetary damages are available under that state’s laws on access. So, he moved to the San Francisco area and is doing the same thing. Similar ADA enforcement groups exist in both Northern and Southern California.

Sometimes, but certainly not always, these suits are frivolous or even harassing. In one instance, we defended a client where the only allegation of inaccessibility was that the toilet paper dispenser in the men’s room was an inch off the accessibility standards. Of course, had a HR 3590 been the law then, notification would have had to have been given to the owner of the establishment. The owner presumably would have taken a screwdriver and lowered the toilet paper dispenser by an inch rather than face a lawsuit in federal court. The owner, however, had no such opportunity since the first notice he had of this "violation" of the ADA was the receipt of the complaint and summons.

Another example is Wendy Garcia. She and her husband own a small building in Miami wherein she and her husband have a small law firm. They rent office space to several other attorneys. One of the lawyer tenants represented a woman in divorce proceedings. After the divorce, the women’s former husband and an "ADA Enforcement group"sued both the Garcias and her tenant for an alleged ADA violation.

The purpose of the ADA is to provide equal access to persons with disabilities; not to line the pockets of lawyers. It is compliance the law seeks to achieve, not more litigation with which to clog the already over-burdened federal court system. This is evident from the law’s promotion of technical assistance. I was privileged to work with Sen. Dole’s staff in drafting section 506 of the ADA which required appropriate federal agencies to provide technical assistance and publish technical assistance manuals for the purpose of informing persons with disabilities and those who must comply with the ADA of their rights and obligations. It is consistent with the provisions of Title I of the ADA which requires that an administrative charge must be filed with the EEOC or a state fair employment agency and, if a violation is found, efforts at conciliation must be attempted, prior to the commencement of litigation.

It is hard for me to imagine that people in the disability rights movement would be opposed to this legislation. I can understand there may be a concern that this legislation would open up the ADA to substantive change. That clearly is not what this bill does, nor is it the intent of the bill’s authors to do so. Rather, the purpose of HR 3590 is to provide for notice of potential accessibility defects and the opportunity to correct them. The bill simply promotes a common sense due process. By so doing, it likely will enhance compliance while reducing the amount of lawsuits currently being filed. The only losers will be those few attorneys who are placing their personal wealth in front of disability rights. These attorneys may argue they are serving the public service by acting as "private attorneys general." A true private attorney general, however, would not act the way these attorneys do. A true private attorney general, and, indeed, most civil trial attorneys, first make a demand for relief upon a potential defendant before filing a law suit. This is because the true "private attorney general" is seeking to promote compliance with the law without litigation where possible. Having been warned, the entity which chooses not to resolve the accessibility issue then is subject to the threat of litigation

I am not sure there is a better means of promoting compliance while reducing litigation. Although I have not checked, I doubt whether lawyers who file drive by suits are subject to sanctions for violating any ethics rules. Second, avoiding the courthouse is not achieved by relying on mechanisms in the Federal Rules of Civil Procedure such as Rule 11 regarding sanctions for frivolous litigation and Rule 68 regarding making an offer of judgement to cut off liability or costs. These mechanisms do not promote ADA compliance and are only available after litigation has started and attorney’s fees have begun to accumulate.

I also would urge the committee to bear in mind that there may be very lawful reasons why an entity may choose not to remove the barrier about which it has been notified. For example, the owner of a small restaurant may choose not to widen the restaurant’s front doorway because to do so would require moving a load bearing pillar. Although the doorway may not be wide enough to permit passage of a person using a wheelchair, the failure to move a load bearing pillar would not violate the ADA. In this circumstance, the restaurant might be obligated, for example, to provide curbside service of a carry-out meal to a wheelchair user, even if it does not ordinarily provide for carry-out service. I mention this example only to emphasize that the failure to remove an asserted barrier after receiving notice should not be interpreted by this committee necessarily as indicating that the covered entity is intentionally violating the ADA. The public accommodation may or may not have a lawful reason for refusing to remove a barrier.

Of course, the bill will not solve completely the problem of ADA drive-by lawsuits. In states such as California, where monetary damages are available to persons with disabilities who cannot gain access to a facility because of architectural barriers, simply removing the barrier within the ninety-day period will not absolve the tenant or owner of all potential liability under state law. Nor will HR 3590 help the owner of a premises avoid liability if a person with a disability is injured on the property due to a lack of accessibility. In these circumstances, litigation and monetary liability will not be avoided simply by removing the architectural barriers at issue.

I would recommend several changes to strengthen the bill. As currently written, it is not clear that the notice contemplated must be in writing. This is because proposed Section 308(a)(3)(i) permits notice in person or by registered mail. In person notification could mean verbal notification. It is important that the formal notice be in writing. It also is important to clarify that the written notice should be comprehensive of the claims the plaintiff intends to bring. Otherwise, the plaintiff could essentially evade the purposes of the bill by notifying the potential defendant of a single barrier, wait 90 days and then bring suit regarding 20 other barriers not mentioned in the notice. The plaintiff’s suit should be limited to those barriers of which the plaintiff could reasonably have been aware and provided notice to the defendant. For example, if a person using a wheelchair cannot gain access to a store because of a flight of steps, he or she reasonably could not be aware of access problems within the store. Notice would need to be given regarding the lack of an accessible entrance. If the landlord or tenant do not provide an accessible entrance within ninety days, the person using the wheelchair could file suit about the lack of a ramp and any other barriers which may be inside. However, if a compliant ramp is constructed within ninety days, no suit can be filed. If the plaintiff then enters the public accommodation and finds other barriers, s/he should give notice regarding those barriers. If not cured, the plaintiff could bring suit on those barriers and any other barriers found during discovery without having to further notify defendants. Secondly, I recommend the notice provision apply to state law access claims as well as ADA claims. Failure to expressly require notification of state law access claims will permit a plaintiff to circumvent the notification process entirely by bringing an access suit under state law. The plaintiff could provide the defendant with a copy of the complaint by registered mail, assert this was the required notice, then amend the complaint to add the ADA claim, entitling the plaintiff to attorney’s fees thereby completely evading the purposes of the ADA Notification Act. Even with these few changes, HR 3590 will not change aspects of the ADA which could use legislative clarification. For example, the ADA does not adequately or clearly define when removing a barrier in an existing facility is not "readily achievable." Currently, the statutory definition of this term requires a case-by-case approach. This permits plaintiffs and the government to argue that substantial and expensive barrier removal may be required of larger entities because of their greater financial resources even if it costs tens of thousands of dollars and takes much effort.

HR 3590, however, does not make any substantive legal change to the ADA. It does not reduce in any way or to any degree the substantive rights of persons with disabilities. I whole heartedly support HR 3590 and hope that it becomes law this session. Thank you for the opportunity to present my views to the subcommittee.