Hunton Retail Law Resource

Last month, legislation seeking to reduce private litigation under Title III of the Americans with Disabilities Act (“ADA”), regarding accessibility barriers for disabled citizens in public accommodations, passed the House Judiciary Committee by a vote of 15 to 6. Industry sources applaud the proposed legislation as a defense against serial nuisance suits by unscrupulous lawyers and plaintiffs, while advocates of the disabled claim it is an unfair new hurdle to private action under the ADA.

Under the proposed legislation, known as The ADA Education and Reform Act of 2015 H.R. 3765 (the “Act”), a fine will be imposed on any person who sends or transmits a demand letter alleging violations of Section 302 or 303 of the ADA without specifying in detail (as provided in the Act) the circumstances under which access to the public accommodation was denied.

The Act also provides that civil action to remove an architectural barrier to create accessibility cannot be commenced until a notice is given, sufficiently specific to allow the owner or operator to identify the barrier, after which (1) the owner or operator fails to respond within 60 days with a written description outlining the improvements that would be made to remove the barrier; or (2) having given such written response, the owner or operator does not, within 120 days from the date the description is provided, either remove the barrier or make substantial progress toward removing the barrier.

Other sections of the Act promote education regarding disability access to public accommodations and development of a model to promote alternative dispute resolution mechanisms.

The Act is broadly supported by lodging and retail groups, such as the American Hotel & Lodging Association and ICSC, and broadly opposed by advocates for the disabled, such as the Leadership Conference on Civil and Human Rights and the Consortium for Citizens with Disabilities, a coalition of organizations promoting rights for the disabled.

Although the ADA does not allow plaintiffs to sue for money damages, industry groups claim the existing statute is nonetheless used to coerce unfairly large settlements from property owners committing minor infractions, due to the ADA’s provisions requiring payment of the plaintiff’s legal fees. Lawyers and plaintiffs find properties with insignificant violations and send a demand letter or threaten suit unless the property owner pays a settlement in an amount just short of what the owner would have to pay in legal fees if the suit proceeded.

According to industry reports, the violations claimed in these “drive-by litigations” are often so minor that they are made against owners who believe their properties are ADA compliant based on government or private inspections. Seeking to reduce what are seen as unreasonable payments for easily cured violations, the proposed Act would give owners the right to cure violations before these suits could be commenced.

In his remarks on the House floor, the Act’s sponsor, Ted Poe (R-TX), referenced an industry of lawyers and serial plaintiffs, some of whom have filed hundreds of Title III lawsuits. According to an ICSC Alert, of the 4,700 claims filed in 2015, 30 percent were filed by only eight plaintiffs.

Organizations advocating for the disabled oppose the Act as creating unnecessary hurdles to removing barriers. They see the Act as an unfair step backward, especially given their concession in the original legislation to accept injunctive relief and attorney’s fees, in lieu of money damages, as their sole recourse. Advocates of the disabled further claim that no other civil rights legislation imposes a similar notice and cure period, nor a criminal penalty (i.e., the fine) for not complying with the specific filing requirements.