Members of the Constitution Subcommittee of the Judiciary Committee of the United States House of Representatives:

My name is Fred Shotz. I have asked to speak before this subcommittee so that I can help you to understand why the ADA Notification Act is not needed to control legal fees and why this Act would harm people with disabilities. I also would like to put into perspective the testimony you are hearing from people who claim that they have been unfairly sued for violations of the ADA. I became disabled after being hit by a hit and run driver while walking in 1969. I began working on disability law in 1982. I currently own an ADA consulting company. I am also the president of the Association of Disability Advocates and the treasurer of the Florida Paraplegic Association.

As the ADA consultant for the City of Lake Worth, where Action Mobility is located, I have first hand knowledge of this store and it’s owners. I will never forget being called an "ADA vigilante" by this store’s owner when I first spoke with him about the lawsuit he had faced. This store’s primary clientele is people with disabilities. The owner has told the press that including him and his wife there are a total of six people working there who are disabled. Yet he had no parking spaces for people with disabilities. I have experienced parking on the gravel parking lot at this store and trying to get across the gravel in my wheelchair. Even now, after the lawsuit, this store has only 2 parking spaces for people with disabilities. That is for the 6 employees with disabilities and the customers with disabilities who come in daily. The owners of this store knew what the ADA required. Providing them with 90 days notice would not have increased their knowledge. Such notice would simply have allowed them to avoid the consequences for their failure to obey what has been the law of the land for almost 10 years.

After the lawsuit was settled, I visited this store. I found that the plaintiff attorney had missed the ADA violations at the entrance door and the ADA violations in the restroom. The power door opener control was behind a post where many people using wheelchairs could not reach it. The restroom lacked grab bars by the toilet and the sink could not be used by a person sitting in a wheelchair. This is a store that is owned by people who advertise in the Yellow Pages that they are ADA consultants. Calling the suit against them unfair is like saying it is unfair to charge a C.P.A. for not filing his taxes.

There has been a great deal of talk about the unfair lawsuit against Mr. Eastwood’s Mission Ranch. Mr. Eastwood did receive written notice more than a year before the lawsuit against his resort was filed. The lawyers even tried to give him notice a second time by certified mail. The certified mail was returned to the sender as no one would accept it. I have reviewed photos of this facility and I read the ADA consultant report written by the plaintiff’s expert witness. I wish we were meeting at this resort rather than here in Washington. If we were there I could take all of you on a tour of this property and you could see for yourself the numerous barriers, still there after three years of litigation, that keep people with disabilities who use wheelchairs from having equal access to this beautiful, recently remodeled resort. I hope that the current lawsuit against this facility corrects all of the violations I have read about and seen in photographs or Mr. Eastwood will end up facing additional litigation filed by other people with disabilities who are now aware of the barriers at this resort.

Congressman Foley filed this bill after Anthony Brady, on behalf of a client, sued Action Mobility, and after one lawyer in Palm Beach County filed a number of lawsuits against businesses in Mr. Foley’s district. While the owners of these businesses were surprised to be served with lawsuits none of them should have been surprised. Each business sued did have violations of the ADA that would have prevented people who are required to use wheelchairs from parking and getting in the front door of these stores. Not one of the lawsuits that led to this bill has been dismissed as frivolous. There is no question that the lawyer who filed these lawsuits did so to make money from the legal fees charged to the defendants. However, that is why lawyers represent clients and file lawsuits; so that the lawyers can make money. In ADA lawsuits there are no monetary damages that a lawyer can split with a client. What the lawyer gets are reasonable fees; hourly pay at a reasonable rate for the experience and skill of the lawyer for a reasonable number of hours based on the complexity of the litigation.

Mr. Brady charged Action Mobility $1,600 for his work. His initial bill was higher but, as with many negotiated settlements, he agreed to a lower fee. The fee included drafting the complaint, flying to Florida from New Jersey to inspect the facility, negotiating a settlement, and drafting a settlement agreement. Based on typical local legal fees Mr. Brady charged for less than 6 hours of work. He spent more than that amount of time just flying to and from Florida.

The other lawyer who filed a large number of lawsuits tried to demand $5,000 from defendants who wanted to quickly settle. I believe that his fee demands were outrageous. Fortunately, the people who have the authority to reduce such fee demands, judges, seem to agree with me. No federal district judge has ordered a defendant to pay such a high fee to this lawyer for the ADA cases he filed. In one case he received $500 in legal fees.

There are a couple of law firms that are taking advantage of disability laws. One lawyer in California has made quite a business of representing one client in hundreds of lawsuits. But those lawsuits are in state court and are under the California Unruh Act, not the ADA. The California Assembly just last week declined to amend their law. No matter what Congress does this lawyer will be able to continue filing his lawsuits in state court.

In Florida there are two law firms that are troubling to people with disabilities because of how they try to capitalize on the ADA by charging high fees. One of these lawyers currently faces bar complaints. Most people with disabilities will no longer use this lawyer and most ADA consultants will no longer work for him. The other problem law firm has been reduced to using the uncle of one of the partners of the firm as their only plaintiff for ADA cases and the untrained cousin of a partner of the firm as their only ADA consultant. No one else will work with them or for them. Between the ethical requirements of the Bar and the authority of district court judges the behavior of these lawyers can easily be addressed without amending the ADA.

I met with Congressman Foley and Congressman Shaw shortly after this bill was filed. I explained to both of them what I would like to explain to you. The ADA is not broken and it does not need to be fixed. This civil rights law is, 10 years after its passage, finally beginning to give equal rights to people with disabilities. The backlash against this law is tiny when compared to the backlash against the last major civil rights law passed by Congress. When the Civil Rights Act of 1964 was passed the National Guard was needed to enforce the rights of those protected by that law. All people with disabilities have needed to enforce our rights has been access to the federal courts. Limit that access and you limit our civil rights.

Mr. Foley has stated that he has proposed this bill so that small businesses will not be sued for violations of which they are not aware. This bill would not simply give small businesses the ability to violate the ADA without consequences; it will give that right to all businesses regardless of size. In reviewing the various lawsuits that have been filed under Title III of the ADA I have seen that these lawsuits fall into eight different categories.

1. New construction - I would not think that Congressman Foley sees a need for pre-litigation notice or waiting periods for facilities constructed subsequent to the effective date of the ADA. All such properties had to have a licensed design professional develop the plans for these facilities. Such design professionals (architects and engineers) are required by their licensing to make sure that their projects meet all requirements of law, including the ADA. Such buildings have also gone through plans’ review by the local building department as well as inspection before a certificate of occupancy is issued. Title III of the ADA does not call for "readily achievable barrier removal" in such facilities but for full compliance with the requirements of the ADA Accessibility Guidelines (ADAAG). Limiting litigation in such a facility would be like limiting litigation against a building owner who did not bother to install fire alarms or where the elevators failed to meet the ANSI requirements. Such a building owner has recourse against the architect and/or general contractor for such errors and omissions.

2. Additions to existing facilities - The same issues apply here as in the issue of new construction. Additions to existing facilities must be permitted and inspected. A design professional must sign the plans as meeting all relevant laws and codes, including the ADA. Here again, the requirement is for full compliance within the added portion of the facility, not just readily achievable barrier removal.

3. Alterations to existing facilities - When a facility is altered, the alterations must be permitted and inspected just as in additions and in new construction. However, the standard for complying with the ADAAG is less stringent. In alterations o existing facilities the ADAAG states "No alteration of an existing element, space, or area of a building or facility shall impose a requirement for greater accessibility than that which would be required for new construction." The same section of the ADAAG goes on to say, "...the modifications shall be done in compliance with these guidelines unless technically infeasible." The ADAAG also states, in addressing alterations of existing facilities, "No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration." While this mixed bag of regulations may seem confusing on the face it actually, to a design professional, is very clear. Alterations of existing facilities must meet the new construction standards of the ADAAG unless doing so is technically infeasible. Litigation in such a situation would concern an alteration not meeting the new construction standards through a decision made by the design professional and the facility owner.

4. Accessible route improvements - This issue applies to both additions to existing facilities and alteration of existing facilities. When such construction work is undertaken, the ADA requires that architectural barriers along the accessible route from the unaltered portion of the facility to the altered portion of the facility must be removed through alteration. This portion of the law is there so that a new or altered portion of a facility cannot be constructed with no way for people with disabilities to get to or use the added or altered portion(s) of the facility. The ADA puts a limit on how much barrier removal must be performed in such a situation. That cap is 20% of the overall cost of the addition(s) or alteration(s). Again we have a situation where a licensed design professional is involved in the project and agrees in writing that all relevant laws and codes are being met. An error or omission on the part of such a design professional would be the cause of such a violation unless the building owner refused to do the work required by the ADA.

5. Architectural Barrier Removal in facilities of multi-facility companies - Many companies with multiple facilities such as hotel chains, movie theater chains, restaurant chains, hospital corporations, etc., have the responsibility of removing architectural barriers at their places of public accommodation when such barrier removal is readily achievable and technically feasible. We are now speaking of large corporations with property development officers, legal departments, and, in many cases, full time design professionals on staff. In many of these companies the decision has been made to address the requirements of the ADA in a reactive rather than pro-active manner. Only when a serious complaint, threat of litigation, or actual litigation occurs will such companies address the requirements of the ADA; and then, only at the facility which is the subject of the complaint. An example is Federated Department Stores which lost in trial over the barriers at the San Francisco flagship store and then refused to follow the requirements of the court imposed on that store at any of their other stores. At this time more than 140 Federated stores are facing litigation as a result of the position taken by Federated Department Stores.

6. Architectural Barrier Removal in facilities owned by corporations - These facilities are often owned by individuals who have formed corporations through which the business operates. Some such facilities, Pro Player Stadium in Miami for example, cannot be considered small businesses. Other such facilities, such as a local video tape rental store that is not part of a chain, can be considered to be small businesses. The owners of such facilities have demonstrated a degree of legal sophistication through the formation of a corporate entity which can provide tax benefits to the owner(s) as well as providing protection of the assets of the individual owners through the corporate veil. Such owners have the legal knowledge, or the support of lawyers and accountants, to cope with corporate tax responsibilities, collection and payment of sales taxes, and the many responsibilities of operating a registered corporation. In such a business operation corporate positions such as president and treasurer must be filled. Meeting of the board of directors must be held. Corporate minutes must be maintained, reports must be filed with the Secretary of State on an Annual basis. Knowledge of the requirements of the ADA is not beyond the ability or responsibility of such business owners.

7. Architectural Barrier Removal in facilities owned by limited partnerships - Facilities owned by limited partnerships are usually far from the "mom and pop" type of operations owned by an individual and family members. Such business operations are often formed by real estate developers for the tax benefits derived from such ownership strategies. These partners, or at the least the operating partner, are usually professional business people operating multi-million dollar businesses. The operating partners are typically highly sophisticated and know their way around the legal and political systems. An example of such partnerships is the limited partnerships that own many of the large shopping centers in south Florida. Shopping centers such as the one mile long Oakwood Plaza in Hollywood Florida and the large Cypress Creek Station in Fort Lauderdale, Florida are owned by limited partnerships formed by Michael Swerdlow following the construction of these shopping centers by the corporation, Michael Swerdlow Companies. Both of these shopping centers were constructed with numerous violations of the ADA Accessibility Guidelines.

8. Architectural Barrier Removal in facilities owned by small partnerships and individuals - Facilities owned by partnerships formed by family members or friends as well as sole proprietorships are typically small businesses with one or a small number of facilities. While the owners of such businesses may have extensive business and legal knowledge, it is just as likely that such business owners know little of the legal requirements of operating a place of public accommodation. It is difficult to paint this group with a broad brush. Small business owners can range from people who have left the large corporate climate to strike out on their own, people with extensive knowledge of the legal issues of operating a business, to individuals following their dream of business ownership and self employment. The owner of three movie theaters in Fort Lauderdale is one example of such business ownership as is the owner of a small natural food restaurant in Hollywood. Some such business owners would have limited knowledge of their responsibilities under laws such as the ADA.

Of the eight kinds of defendants I have described only the last category could possibly be worthy of the notice requirements of Mr. Foley’s bill. Of course their worthiness is based on a belief that people with limited resources are not required to follow the law. If that is the new standard of law enforcement in the United States then we need to instruct police officers to not ticket drivers who are not driving new cars. We need to tell the I.R.S. to not prosecute people for tax fraud unless they are above some income threshold. Everyone is required to follow the law. That should especially be the case when the law in question is a civil rights law.

People with disabilities have never been required to sit in the back of a bus; we couldn’t get on the bus in the first place. We have never been required to use different restrooms than everyone else; we have not been able to get into the restroom at all. Signs were not needed at drinking fountains, we couldn’t reach them to use them. Title III of the ADA has given us the right to shop for food, the right to see a movie, the right to enjoy a baseball game, and the right to eat in a restaurant. Title III has even given us the right to get into a doctor’s office and, much to Mr. Foley’s displeasure, the right to get into a lawyer’s office. Title III of the ADA has given us the right to participate in the economy of the nation. This bill will not take those rights from us. This bill will simply make it much more difficult, if not impossible, to enforce our civil rights when they are violated by places of public accommodation.

The right to sue in federal court and the provision of awarding reasonable legal fees to the prevailing party is a carefully written section of this law. We call that section of the ADA the Citizen Enforcement Provision. With only a small number of people assigned to ADA litigation in the Department of Justice it is the people with disabilities, through our access to federal courts, who have been charged with the responsibility of enforcing our civil rights.

I know of no other discriminated against minority group that has been required to enforce their own civil rights. An entire federal agency protects the rights of Native Americans. The Department of Justice has been extremely active for decades enforcing the rights of people of color and people of cultural and ethnic minorities. From New York City to Los Angeles, the Department of Justice is there to take to task those who violate the Civil Rights Act of 1964. We are not complaining about being allowed to enforce our own civil rights. We are complaining about a bill that would make that enforcement much more difficult.

When the Citizen Enforcement Provision of the ADA was written it was decided to not provide damages to people with disabilities who suffered discrimination and sued for equal rights. None of us wanted to see the ADA used as a way for people with disabilities to make money from the discriminatory acts or omissions of business owners. Damages are only available under this Act when the discrimination is so serious that the Department of Justice feels it necessary to expend their limited resources on a particular case. In order to enforce our civil rights the ADA gives us access to federal courts and the ability to have our lawyers paid by the defendant when we establish that the ADA has been violated. Members of Congress and your staff made it very clear to us when we were working to see the ADA become law that there was no increase planed in the funding for the Department of Justice to enforce this law. Unless it is your intent to provide a lot more money to the Department of Justice so that they can more actively enforce our rights then this bill will weaken the enforcement of the civil rights of people with disabilities.

This bill appears on its face to be very simple. All it requires is written notification of specific violations and a 90-day period after such notice before a lawsuit can be filed. However, the devil is in the details. Any business in existence since 1990 that is currently in violation of the requirements of Title III of the ADA has been in violation for almost 8 years. I know of no law that a person can violate for that long and then still have the right to correct the violations of law before being sued for those violations. Maybe our kinder and more gentle I.R.S. will provide such a grace period to people who cheat on their taxes. People with disabilities have waited our whole lives for equality. We are now being asked to wait a little longer while violators of our civil rights are given more time, without consequences, to stop discriminating against us.

The 90-day waiting period, as troubling as that is, is only a small part of what is wrong with this bill. Every person with a disability who faces discrimination will be required to be an ADA expert in order to seek equal rights and equal access. Because of the work that I do as an ADA consultant I could take you on a tour of business in this city and show you specific violations in various business facilities. I know how wide a door must be the maximum slope of a ramp, the accessible route requirements and the restroom requirements. Could any of you measure the slope of a ramp to see if it is too steep or evaluate an elevator for compliance with the requirements of the ADA Accessibility Guidelines? Neither can most people with disabilities. We know when we can’t get up a ramp, when we can’t reach the floor buttons in an elevator, when we can’t use a public restroom. But most people with disabilities do not know the specific scoping and technical requirements of any building code including the building code aspects of the ADA Accessibility Guidelines. This Bill would require that every person with a disability have this knowledge in order to provide written notice of violations to business owners. Notice of violations that simply said, "I could not get into the toilet stall" would not be seen as sufficient detailed notice.

Even worse than requiring that people with disabilities seeking their civil rights be ADA experts is the impact of this bill on the ability of people with disabilities to obtain legal representation. Typically a person with a disability who has experienced discrimination will contact an organization such as the Association of Disability Advocates. The association then will refer the person to a lawyer if their complaint seems valid. The lawyer, under the Rule 11 of the Rules of Civil Procedure, investigates the complaint and after verifying that there are violations of law files a lawsuit. If this bill became law lawyers would not get involved until after notice was given and the 90 days had passed. I know of no lawyers who would take such a case, investigate the violations, investigate the ownership of the business, write a letter of notice, and then wait 90 days to see if they would be paid for the time already spent by being able to file a lawsuit. A person with a disability would have to have enough money to pay the lawyer for that work, only getting their legal fees back if the business ignored the notice. If a business owner, responding to notice, simply applied for a building permit to correct the violations during the 90-day period no lawsuit would be possible and the legal fees could not be recovered. If the work never got done or was not done correctly then the whole process would have to start over again.

Title I of the ADA has not resulted in great improvement in the unemployment of people with disabilities. We continue to have some of the highest rates of unemployment of any population group in the United States. The vast majority of people with disabilities would have to choose between paying a lawyer or buying food. This bill would strip millions of people with disabilities of their access to legal representation when faced with discrimination.

I would like you to look at a picture that I will try to paint with words. A woman has quadriplegia and uses a power wheelchair. She tries to meet friends for lunch and finds that she has to use the back door and go through the kitchen to get into the restaurant. During her meal she needs to use the restroom and discovers that she cannot get through the door of the restroom to even get near a toilet. Embarrassed, she tells her friends that she has to leave. She calls a lawyer the next day and is told about the notice requirements of the ADA. The lawyer tells her that for a $1,000 retainer he will inspect the restaurant and write a letter of notice. She does not have $1,000. The lawyer tells her to call back after she provides notice to the owner of the restaurant and the 90 day waiting period passes.

This woman with a disability now has to figure out how to provide this required notice. She goes to the library and uses their voice activated computer to go to the D.O.J. website. She gets to the ADA Accessibility Guidelines and sees the requirements. However, she cannot handle a tape measure to measure the width of the front door. She cannot get into the restrooms to identify the violations there. She does not have enough use of her hands to write a letter. If this woman finds a way to identify specific violations and if she finds a way to write a letter she then must send the letter by certified mail. That requires that she make her way to the post office and try to find a counter that is not too high for her to use. Then, after waiting 90-days, she has to return to the restaurant to see if the barriers have been removed or if she can file a lawsuit. If this bill becomes law, this woman, and hundreds of thousands like her, will have no way to enforce her civil rights.

I have saved the worst problem for last; that of voluntary compliance with the ADA. I believe that it is reasonable to assume that most businesses that are interested in being accessible to people with disabilities have already done needed alterations to remove architectural barriers. The millions of businesses still in violation of this civil rights law either don’t care or choose to bury their heads in the sands of ignorance. The only thing getting these businesses to comply with the law is litigation. It is difficult to not care when being sued. It is impossible to be ignorant with facing litigation over chosen ignorance.

This bill would let all of these business owners continue violating the civil rights of people with disabilities without even the fear of being sued. There would be no reason to fix a restroom, construct a ramp or even put in parking spaces for people with disabilities until a letter was received giving notice of such violations. Corrective action would only have to be taken once such a letter was received. The biggest beneficiaries of this bill would be the large corporations who are waiting to be sued before complying with the requirements of the ADA. If this bill becomes law, they can continue to wait. When they get a letter, they will only have to correct the violations identified in the letter. Fixing those violations will avoid a lawsuit, avoid an inspection as part of discovery, and leave all of their other violations undiscovered and uncorrected.

I have asked my lawyer to file a lawsuit against a corporate owned Marriott Hotel in Colorado. When I stayed there, I could not even get through the door of my wheelchair accessible room without assistance. The hotel’s solution to their violations of law was to offer me a room at a different hotel 20 miles further away from where I needed to be. An employee of the hotel who was upset with my access problems told me that the hotel manager had taken money allocated for ADA compliance work and used it to redecorate the rooms on the concierge floor. Do you really think that Marriott Hotels deserves a letter of notice and a 90-day grace period before I should be able to sue them? Do you really think that, after I was burdened with the barriers of their discrimination, I should be required to fly back to Colorado to identify specific violations to include in my letter to them? Do you really believe that Marriott, Hyatt, Days Inn, and the many other corporations that continue to violate the ADA simply don’t understand that they are in violation of a federal civil rights law.

Thank you for the time to explain to you why HR 3590 would be harmful to the civil rights of people with disabilities. If you have any questions I would be glad to try and answer them.