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tv   Hearing Focuses on Americans with Disabilities Act Lawsuits  CSPAN  May 23, 2016 3:25am-4:58am EDT

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to be able to purchase american automobiles, is it worth it for our companies to sell those products if we are going to be receiving so much debt? our country is facing a huge debt crisis, so i want to know his opinion. does he think the trade agreement will be worth it and as he think free-trade benefits america or american citizens overall? guest: i am a journalist, so i will stay neutral, but i will to you the two schools of thought. the vietnamese government is interested in this trade agreement, and like other countries in south east asia and asia, they want more opportunities to sell their goods to the u.s. and to other countries in the area, and they also are ready to open up the gates to more imports from the u.s. they think there is something to
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be gained on that, and they are ready -- they say they are ready to abide by the new rules about the environment, trade agreements, intellectual property, and as far as the u.s. economy is concerned, the administration would say to your question, well, the only way to move forward and get better paying jobs and to pay down the debt is to grow the u.s. economy and to do that through trade, and bernie sanders and some other people say no, either the trade agreements have to be renegotiated or negotiated in a more beneficial way for the u.s. were we should perhaps protect parts of our economy to have some sectors that we simply protect the terrorists. host: let me conclude with this point, i we had a good pivot point with regards to the u.s. and vietnam? i we had a better point in five years or 10 years ago? guest: absolutely. relations have improved pneumatically.
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it is not just economic driven. it is largely driven by this what china is of doing in the south china sea and whether china is going to fend off and dominate the strategic waterway. host: "foreign policy" chief washingtonc-span's journal. coming up this morning, with the house holding hearings, we will speak to the attorney representing the groups supposedly targeted by the irs. and then we will talk to carl leaven center at duane. william klein will talk
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about the countries that hold the top debt, including saudi arabia. join the discussion on washington journal. her stateng was held to examine how the americans with disabilities act is being used by some attorneys and plaintiffs to file suits against businesses. among them were to attorneys from separate businesses. this is one hour and a half. mr. franks: subcommittee on constitution and civil justice will come to order and without
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objection, the chair's authorized to declare recess the committee at anytime and welcome to you, gentlemen. sorry for being a little late. we've called this hearing today to examine h.r. 3765, the a.d.a. education and reform act of 2015, and h.r. 241, the access act of 2015. which are two commonsense proposals that require plaintiffs to provide defendants with written notice and an opportunity to correct an alleged a.d.a. violation voluntarily before they may file a lawsuit and force a business owner to incur legal costs. these bills, which only apply to cases involving public accommodations, would both improve public access for disabled individuals and eliminate thousands of predatory lawsuits that damage the reputation of the a.d.a. and its overall purpose. when the a.d.a. was signed into law by president george h.w. bush in 1990, it was to provide the disabled equal access to public facilities. in large part, the a.d.a. has worked. it has been hailed as the most
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sweeping, nondiscrimination legislation since the civil rights act of 1964. unfortunately, enterprising plaintiffs and their lawyers have abused the law by filing a flurry of a.d.a. lawsuits aimed at churning out billable hours and extracting money from small businesses rather than improving access for the disabled as the a.d.a. intended. these predatory lawsuits are possible for two chief reasons. first, 100% compliance with the a.d.a. is very difficult to achieve. even though good faith efforts such as bringing or hiring an a.d.a. compliant expert, a business can still find themselves subject to a lawsuit for almost any minor or unintentional infraction. according to one a.d.a. compliant specialist, quote, i rarely, if ever, see circumstances or instances where there isn't an access violation somewhere.
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i can find something wrong anywhere, unquote. this makes compliance a challenge even for those with the very best of intentions. second, unlike title 2 of the civil rights act, the a.d.a. does not currently require any notice before a lawsuit can be filed. this has led to thousands of lawsuits being filed for issues of relatively minor noncompliance, such as a sign being the wrong color or having the wrong wording. abuse of the a.d.a. has been noted by federal judges in numerous cases throughout the country who have referred the proliferation of a.d.a. lawsuits as a, quote, cottage industry. these judges have recognized that the explosion of private a.d.a. litigation is primarily driven by the a.d.a. attorney's fee provision. one federal court explained that, quote, the ability to profit from a.d.a. litigation has led some law firms to send disabled individuals to as many
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businesses as possible in order to have them aggressively seek out all violations of the a.d.a., end quote. then, rather than notifying the business of violation and attempting to remedy them, lawsuits are filed. as settlement prior to filing a lawsuit does not entitled plaintiff's counsel to attorney's fee under the a.d.a., there is an incentive. as one federal judge observed, the result is that the means for enforcing the a.d.a. attorney's fees have become more important and desirable than the end, which is accessibility for disabled individuals. but the a.d.a. was enacted to protect disabled individuals, not to support a litigation mill for entrepreneurial plaintiff's attorneys hunting for a.d.a. violation just to file lawsuits.
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these bills examined today would help eliminate predatory a.d.a. lawsuits, increase compliance by the a.d.a. by giving businesses an opportunity to fix a.d.a. violations instead of dragging them into litigation and improve the reputation of the a.d.a. in the eyes of the public and ultimately improve access for disabled individuals. lawsuits would be reserved for those instances in which offenders are truly unwilling to make appropriate changes. this would also allow legitimate claims to move through the system faster. and it will benefit our economy. many small businesses have been forced to close because of accessibility lawsuits and others have unnecessarily spent thousands of dollars litigating claims. small businesses are critical to america's economic recovery and should not be burdened by unnecessary litigation. it's an honor to have congressman ted poe who introduced 3765, and congressman ken calvert, who introduced h.r. 241. both here to testify about their respective bills.
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and i look forward to your testimony and the testimony of our own witnesses. and with that i would recognize the ranking member of the subcommittee, mr. cohen from tennessee for his opening statement. mr. cohen: thank you, mr. chair. colleagues, it's good to have y'all here. this is not the first time there has been a hearing on this type of issue. since 2000, there have been i think three times that bills have been filed and hearings on prenotification concerning a.d.a. i have met previously with the folks in the shopping center world, hotel world and the disability community and tried to get a more better grasp on the issue and come up with some type of reasonable solution. it's difficult to do if folks don't really want to change from their kind of positions they got.
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some of them are based in 1990, and they'll tell me this is what we did in 1990 and it's kind of like, it's fine. i wasn't there in 1990. my job is not to ratify whatever happened in 1990, but when we look at these cases, private parties are indispensible for having enforcement of any civil rights law. this is a civil rights law and we have to have private attorney generals and they have been so effective in so many areas in seeing our laws are effectively enforced. civil rights, in particular, and the a.d.a. because of that, there was the agreement in 1990, said there wouldn't be damages in these cases under the a.d.a. but they would -- there was a compromise that was done. i understand that there's some folks that think there are attorneys out there throwing out wide nets and they don't really have a specific target and i think that's wrong. definitely think that's wrong, but i've suggested to them and coming up with some type of solution and part of that is in the bill i think is that you
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have to have specificity in your complaint and you could tighten that up to see they have not just a boiler plate complaint but a specified -- specific complaint, although i don't know why rule 11 hasn't worked against those types of complaints in the past but so be it. maybe that would help. if you get in the situation to where -- obviously the title of this hearing is examining legislation to promote the effective -- i know it's effective -- enforcement of the a.d.a.'s public accommodations provisions. so it's -- we have to presume in there we want to enforce the a.d.a.'s public accommodations provisions, although most of what we got here is not so much enforcement but limiting enforcement and limiting the way we -- so that's kind of the juxtaposition of my mind or contradiction in the title and what i see as the focus of the legislation. you can't -- i've never seen a criminal penalty that would be created to anybody who asserts a civil right. and this would be a case.
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could you have a civil penalty -- criminal penalty, excuse me, if you don't give your notice provision first. that seems rather harsh. i think some folks agreed that was harsh and further than it should go. but there can be abuses. i think there might be abuses, and if there are abuses i want to clean them up. i did that with this committee and looking at trolls. i know they're not your pals, mr. poe, but they may be but -- in marshall, texas, and that's not necessarily a great world there. so i suggest if you amend -- pre-suit notifications that you ought to have something that also rewards the good guys to clean up the miss after the 120 days. everybody says, oh, the good guys will come forth and give notice and that's what you want to get.
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mirror sort of the signs or rails or whatever taken care of. and if the good guys do it, great. but if you don't, you have bad actors or if they lollygag or they don't do substantial, whatever, then i think you got to have a stick. to change this you have to have a stick to see the bad guys get punished somehow. i don't know how you do it. you have to give some people this notice and provision and time to kind of maybe be dilatory but punish them for not being good guys. one of my thoughts was to give some kind of damages, liquidated damages, some amount that's equal to or multiple -- whatever it requires to fix the area or maybe there would be some other kind of damages we could come up with to punish the owners that aren't the good guys. you got to have consequences for those people. otherwise they're just getting the benefit and they're not going the folks that i know mr. poe and mr. calvert are interested in helping through this action. and the folks with the a.d.a. community, i mean, they want like i want the a.d.a. enforced,
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and this is not about attorneys. this is about a.d.a. provisions. but the attorneys do bring the cases. with the notice provision, they don't have -- not getting attorneys' fees, it brings a problem, attention to the business community and they clean it up and the other side gets nothing for it, there's unlikely there's going to be a continued interest in those people -- the attorneys to follow through and help in giving the notice provisions, advising the clients and trying to cure problems with the a.d.a. that's just the way the system works. people have got to have some skin in the game, and you're taking the skin in the game out. and so that's going to hurt, i think, enforcement here unless we come up with something on the back end that makes it a little bit sweeter. i'm a lawyer and i have a disability. i helped pass the a.d.a. state statute in tennessee, and i'm interested to seeing this enforced appropriately and
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properly but i'm not interested in seeing these businesses get a wide net thrown and people looking out for attorneys' fees more than the disabilities community. i think it's a disservice to the bar association, members of the bar and people with disabilities. so i hope we have a fruitful discussion. i know we will and hope we can come up with a solution. i think there's some good ideas here but i don't think the solution is here and i think we need to look at some kind of a stick to make sure the bad guys get slapped so the good guys can just deal with the notice. with that i yield back the balance of my time. and that's just the way it is. mr. franks: i thank the gentleman, and i would now yield to the ranking member of the full committee, mr. conyers from michigan. mr. conyers: thank you, chairman franks. top of the morning to you and our distinguished witnesses and the guests that have joined us
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this morning. the three bills that are subject of today's hearings would institute a notice and cure requirement under title 3 of the americans with disabilities act of 1990. specifically, these measures would prohibit a lawsuit from being commenced unless the plaintiff first gave the business owner specific notice of an alleged violation an opportunity to fix or make substantial progress toward remedying such violation. let me begin by stating what i
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said previously when similar proposals were considered by our committee in the year 2000 and again in the year 2012. quote, i am adamantly opposed to any effort to weaken the ability of individuals to enforce their rights under title 3's public accommodations provisions. and here's why. first, the notice and cure requirement will generate numerous litigation chaps for the unweary and ultimately dissuade many individuals from pursuing their legitimate claims. for example, two of these bills would require a complainant to provide specific notice of the alleged violation before he or she may file suit. but they failed to define what constitutes specific notice, nor do they define what is substantial progress toward
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compliance. as a result, courts will have to struggle to determine what these inherently vague terms mean, thereby creating an open invitation for well-financed business interests to engage in endless litigation, possibly, that would drain the typically limited resources of a plaintiff. in addition, these measures would undermine a key enforcement mechanism of the americans with disabilities act and other civil rights laws. the credible threat of a lawsuit is a powerful inducement to businesses to proactively take care to comply with the act's requirements. yet, a presuit notification requirement would create a
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disincentive to engage in voluntary compliance as many businesses would simply wait until receiving a demand letter before complying with the law, and this requirement also would discourage attorneys from representing individuals with claims under title 3 because attorney fees may only be recovered if litigation ensues. thus, an individual with a title 3 claim would not be entitled to recover such fees if the extent of the attorney's representation was limited to drafting the demand letter. presuit notification would make it even more difficult for disabled persons with valid title 3 claims to obtain legal
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representation to enforce compliance with the act. finally, title 3, by its terms, is already designed to make compliance relatively easy for businesses. so i am pleased to join the hearing, and i yield back any time remaining. thank you, mr. chairman. mr. franks: and i thank the gentleman. and without objection, other members' opening statements will be made part of the record. before i introduce the witnesses, i'd like to submit two statements for the record. the first is letter from the national association of theater owners in support of h.r. 3765. the second is a coalition letter
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also in support of h.r. 3765. without objection, these statements will be entered into the record. so let me now introduce our witnesses. we have two very distinguished panels today, and that i will begin by introducing the first panel of witnesses. our first witness is representative ted poe. mr. poe represents texas' second district and is a member of the judiciary and foreign affairs committee. glad to see you, sir. our second witness is representative ken calvert. mr. calvert represents california's 42nd district and is a member of the house appropriations committee. glad you're here. i'd like to now recognize our first witness, congressman ted poe, and if you'll turn that microphone on, i know -- yes, sir. mr. poe: thank you, mr. chairman. thank you for allowing me to be here. i want to thank the ranking member and also i'd like to thank congressman calvert for his work on this issue for a good number of years. as the chairman has pointed out,
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or has pointed out in the past, i'm a former judge, prosecutor and lawyer. been in the legal profession for almost 40 years. and this is a situation where this particular hearing that we're having deals with i think abuse of a good law. i believe strongly in the a.d.a., and it needs to be always enforced. and the goal of the legislation is to make sure that when there is a violation anywhere across the fruited plain that the violation gets fixed so there is accommodation for the citizen to get into that business. but the legislation hopes to prevent what is occurring, that there are lawsuits being filed, not to get accommodation for the citizen, but to get money so that people settle and the alleged violation may or may not ever be addressed. and what happens is that lawyers
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are making a lot of money off of these what i think are frivolous lawsuits to the detriment of the person who is actually being prohibited from going in to some businesses because the goal is not being reached to allow accommodation. what is happening is lawyers are filing lawsuits, businesses settle rather than go to court and the lawyer gets we don't know how much of that money. so in the last 10 years, these frivolous lawsuits have been filed under the public accommodations section of the a.d.a. some of these lawsuits are, in my opinion, shake downs for businesses and they're using the a.d.a. as a basis to obtain quick settlements rather than go to court. for example, some of these law firms -- and there are specific law firms in different parts of the country that do this.
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they will file notice or give a letter stating there is not a proper pool lift in a particular motel or hotel. and many of these -- some of these hotels don't even have a pool or these motels but the businesses settle rather than go to court because of the cost of litigation and that is the motivation of these lawsuits. and we're talking about settlements of around $5,000 apiece. often the same individuals or organizations who are making many of these claims go from business to business. and it's a business model that's been working, especially in the last two years where 10,000 of these lawsuits have been filed. in florida, a plaintiff named howard cohen, no relationship to the ranking member, has filed 529 of these lawsuits. california, martin vogel has filed 124. in pennsylvania, christopher
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-- has filed 21 of these lawsuits. howard cohen, he sued a hotel in key west for alleged violation of their pool despite the fact he was never a registered guest at the hotel. sounds somewhat suspicious. the a.d.a. expert who actually wrote part of the a.d.a. bill, bill norkis, helped the hotel fight in this particular case and he state that had cohen was essentially operating, quote, a criminal enterprise that boils down to extortion. that does not get people into these motels. it does not accommodate these individuals. it allows for, as he said, shakedowns for money to be collected from these, as i think they are, a.d.a. trolls. some of the notices or letters are so nebulous that the person receiving the notice doesn't even know what the violation was.
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we have a realty company in houston that manages shopping malls and one particular shopping mall there's 40 parking places that are painted blue and a.d.a.-compliant but they're still sued because the violation doesn't -- the letter doesn't allege what the specific violation is. so this bill will require basically three things. that they be put on notice so they can fix the problem before there's a lawsuit. if that's the goal, to fix the problem, put the business on notice. if the business doesn't respond to this notice within 60 days, lawsuit commence. if the business then doesn't fix the problem within 120 days -- and i think that could be worked on how many days -- file the lawsuit.
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that does not prohibit the citizen from filing and getting their day in court, but if we want to fix the problem, let's fix the problem. it also allows for arbitration if the sides want to arbitrate. it's not required under the law. it's voluntary and it also requires that justice department come up with some very -- working with the industry and the people in the a.d.a. community different models on how they can educate all businesses throughout the a.d.a. sayshat the comply with itn in the system. it also allows for arbitration. it's not required under the law, the voluntary and it also requires that the justice department come up with some very -- working with the industry, and the people in the a.d.a. community, different models on how they can educate all businesses throughout the country on what the a.d.a. says and how they can comply with the law as it is written.
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that is what this legislation is. to put them on notice. fix the problem. get the a.d.a. compliance. it's not to allow for these frivolous lawsuits to be -- the money going to, i think, the attorneys rather than fixing the problem. i yield back my time and that's the way it is. mr. franks: i thank the gentleman. mr. calvert: i thank you for the opportunity to testify today on the access act. as you know, the a.d.a.'s been mentioned is undoubtedly one of the most pieces of civil rights legislation that we've passed in this country. we can all agree that providing all americans with access to public accommodations is an invaluable legislative objective. the purpose of a.d.a. is to ensure access to disabled, to the public accommodations, provide appropriate remedial action for those who have suffered harm as a result of noncompliance. although there are times when litigation by harmed individuals is necessary, there's an increasing number of lawsuits brought under the a.d.a. that are based upon a desire to achieve financial settlements. rather than achieve the appropriate modifications for access. these lawsuits filed by serial to asnts, often referred
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lawsuits," place exorbitant legal fees on small business, oftentimes business owners are even unaware of the specific nature of the allegations brought against them. in early 2011, frivolous a.d.a. lawsuits against small businesses reached an all-time high throughout california. as a result, my good friend and colleague, former congressman dan lungren, championed the issue and introduced the original access act in the 112th congress. i was pleased to have been afforded the opportunity to take over the legislation for re-introduction, beginning in the 113th congress. in january, 2015, i are reintroduced the legislation, h.r. 241, the access act. h.r. 241 is a cost-free, commonsense piece of legislation which would alleviate the financial burden small bills are facing. while still fulfilling the purpose of a.d.a. any person would provide the owner or operator with a written notice of violation specific enough to allow such owner/operator to identify the barrier to their access. within 60 days the owner/operator would be required
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aggrieved person with the description. the owner/operator would have 120 days to make the improvement. the failure to meet any of these conditions would allow the lawsuit to go forward. without question, we must ensure that individuals with disabilities are afforded the same access and opportunities those without disabilities. as a former small business owner and restaurant owner, i personally have had to deal with these serial litigants. i can say for certain that frivolous lawsuits do not accomplish any goal. allowing small business owners to fix a.d.a. violations within 120 days rather than waiting for lengthy legal battles to play out is a more thoughtful, timely and reasonable approach. whiled a.d.a.'s a national law, as i mentioned earlier, california's become ground zero for a.d.a. violation lawsuits. in fact, california's home to more federal disability lawsuits than the next four states combined. a 2014 report determined that
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since 2005, more than 10,000 federal a.d.a. lawsuits have been filed in five states. with the highest disabled populations, 7,188 of which were filed in california. as of 2014, according to u.s. census bureau, 31 attorneys made up 56% of those federal disability lawsuits in california. those figures are the real life toll it takes on small business owners, why i introduced the legislation, to allow a fix-it period. however, it is clear that it's not just a major problem in california. the introduction of similar legislation by the gentleman from texas, mr. poe, allows just that. his legislation authorizes the training, education component for effective community and certified access specialists, which i certainly would welcome and embrace as an amendment to my legislation. this is also a bipartisan issue supported by states.
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i was pleased to see that california, sb-269, the text of which i'd like to submit for the record, as well as a related article, passed unanimously in the state assembly and senate and was signed into law by governor jerry brown. on may 10, 2016, just a week ago. the legislation authored by my friend, a democrat, state senator richard roth, is similar to the access act in that it allows businesses to take immediate steps to become accessible by providing them with 120 days in receipt of a certified access specialist report. to resolve any identified violations without being subject to litigation costs or statuary penalties. i worry that with california acting to curb these lawsuits, some of these serial litigants will try their trade in other states. maybe they'll move next door to arizona. without question, the access act would ensure that the a.d.a. is used for its true purpose of uaranteed accessibility to
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public accommodations for all americans, while eliminating busive, costly and unnecessary lawsuits for small business owners. once again, i appreciate your time today and stand ready to assist in any way possible to ensure that this legislation moves forward. thank you. mr. franks: i thank the gentleman. i'd like to thank both representative poe and representative calvert for their time and expertise. grateful for your testimony. i would now like to invite the members of our second panel of witnesses to come forward.
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mr. franks: want to welcome all of you. our first witness on this panel is lee ky. ms. ky operates and manages a doughnut shop owned by her mother. her family's business has been the subject of abusive a.d.a. awsuits.
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our second witness is mili shah. ms. shah is an attorney and a hotel owner in atlanta, georgia. our third witness is kelly buckland. mr. buckland is the executive director of the national council on independent living. and our fourth and final witness is david weiss. mr. weiss is executive vice president and general counsel of d.d.r. corps. a company that owns and manages retail properties. each of the witnesses' written statements will be entered in the record in its entirety and i would ask that each witness summarize his or her testimony in five minutes or less. to help you stay within that time, there's a timing light in front of you. the light switch from green to yellow indicates that you have one minute to conclude your testimony. when the light turns red it indicates that the witness' five minutes have expired. before i recognize the witness, it is tradition of subcommittee that they be sworn. so if you would please stand to be sworn. for those of you who can't
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stand, just -- do you solemnly swear that the testimony that you're about to give will be the truth, the whole truth and nothing but the truth so help you god? >> i do. mr. franks: let the record reflect that the witnesses answered in the affirmative. i would now recognize our first witness, ms. ky, and turn that microphone on and pull it close to you. ms. ky: can you hear me? mr. franks: yes. ms. ky: my name is lee ky. i live in california. i'm here to express my concern regarding the americans with disability act and how it's being used toward our businesses. i understand that all businesses must be accessible for all customers. i have been disabled all my life and i am grateful for the president george bush who recognized the needs of more accessibility for the disabled community when he signed a.d.a. nto the law in 1990. the public buildings should have accessible entrance doors for both wheelchairs and
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stroller users. public facilities that have an eating area and rest rooms should be accessible with tables wide enough and high enough for a wheelchair to fit. the eating area should not be designated just for the disabled people. and eating areas should not have a sign that says, for wheelchairs only. accessible buildings allow people with disabilities to become more independent and self-sufficient. as for me, i appreciate businesses that have accessibility. but personally it does not matter, if the bar is at 37 inches or 32 inches, on either side, as long as it's providing and is there and when i need it. all business owners have to recognize the needs for all customers. for example, many businesses provide carpet or rubber mats at entrance outside or inside. to prevent customers from slipping. many business owners are not
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aware of the changes or new regulation related to a.d.a. not all businesses are up to date -- up to code with the a.d.a. regulation. because of the lack of information from our city, state, also federal, of informing the public regarding the changes. my mother has two doughnut shops and has been sued at both locations for a.d.a. violations. it is not fair for a business owner to receive a lawsuit package from law firms that is out of our city and county limits. prior to filing a lawsuit, notification should be sent to the business. if inside the building has obstacles or steps for the entrance and the facility is too narrow. now that business facility is not up to code with the a.d.a., therefore, the particular place of business should be corrected
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immediately. my mom's doughnut shop was built in 2000. and did not have architectural barriers. i would know, i'm there. all businesses should have 30 days to correct minor violations. and 120 days for constructional period. in my experience, the carpet or the mats have never become entangled in my wheelchairs. if the a.d.a. regulation remains the same and requires businesses to remove all carpets or mats for the inconvenience of disabled people, then the a.d.a. will be creating a hazard for the able bodied person. we, the disabled community, should not be able to feel den graded from the rest of society. this will create bitterness between the customer and the business. i dont need a sign to inform me that i am disabled and where i should sit.
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the a.d.a. should concentrate on accessible curbs and ramps that do not wrap around the building and the back door access points. generally, when i enter through the back door, i feel like businesses are embarrassed or ashamed to associate with me. because of my physical limitations. this is understandable to a point. because there are few disabled individuals, including lawyers, that make it their personal mission in life to collect money from businesses. that they have never been to. it seems this handful of lawyers think they are only helping the disabled community -- that they are helping the disabled community. moreover, they are separating the disabled community and the abled community. the lawyers are causing the able-bodied community to dislike americans with disability act. this makes the rest of small business owners who are trying to earn an honest living look bad.
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throughout my life, people are generally very helpful. when i am out and about in the community, people offer their kindness to assist me. whether i accept or decline is up to me. i also have a voice if i need assistance. i can ask for help. i do not want business owners to cringe when they see me enter their establishment. personal experience, i was at downtown state capitol and had to use the rest room. i spotted a bar and a restaurant and i asked if i could use the rest rooms. they asked me if i'm going to buy a drink. my ex responded, no, she does not drink, but she's going to go to the rest room. no, they did not give me permission to use the rest room. since the a.d.a. lawyers are going to sue small business, they are posting signs on their windows, no public rest room. i would like to see the a.d.a. regulation of federal laws to be fair and not be taken advantage of or misused by
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people that know the laws such as lawyers and certified access pecialist persons. i believe our elections officials should inform the public of all new laws and changes. if this is -- many businesses will be forced to shut down and there will be many empty buildings in our community because they do not have the money to pay off the lawyers. to me, this is wrongdoing and misusing the a.d.a. jerry brown signed sb-269 which limits statutory damages for certain minor or technical violations of the a.d.a. in my opinion, a lawsuit is still a lawsuit. it doesn't matter if the amount is reduced. thank you. mr. franks: i thank you, ms. ky.
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i now recognize our second witness, ms. shah. shah would you turn that microphone on? ms. shah: it is on. chairman franks -- mr. franks: you may have to bring that closer to you. ms. shah: can you hear me? there we go. chairman franks, ranking member cohen and distinguish members of the subcommittee, thank you for the opportunity to testify today. it is an honor to appear before you to share my story. my name is mili shah and i'm a second generation hotelier and attorney from georgia. my parents migrated from india in the 1980s and bought their first hotel. i spent the first eight years of my life on the third floor of days inn. a place i called home. 30 years later my family owns several hotels that employ nearly 400 people. i personally own two hotels in atlanta, georgia, that amount to nearly 150 guest rooms and deploy 20 dedicated employees. i am also here representing the
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asian american hotel owners association. we own over 40% of all hotels in the united states and employ over 600,000 american workers, accounting to $10 billion in payroll annually. recently small businesses have come under attack by unscrupulous attorneys and professional plaintiffs seeking to make a quick buck. to advance their corrupt goals, these bad actors manipulate one of the most important civil rights laws in our country. the americans with disabilities act. i was recently sued for allegations and violations of the a.d.a. at my hotel in atlanta. i was surprised to think that a guest at my hotel was denied service. i contacted the general manager to learn that the plaintiff had never stayed at our hotel, nor was there evidence he or his attorney had visited the property. the claims were extremely vague and general. he stated a failure to provide accessible entry into our hotel's pool. my swimming pool at my hotel has been closed since the day i purchased it.
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it is empty and covered with a tarp. was i being sued for failing to provide entry into a part of my hotel that has always been closed to the public think? researched the plaintiff and attorney and found out they have sued nearly 100 businesses and each suit is almost identical. in fact, the same plaintiff and the same attorney has sued my father with the same complaint at one of his hotels. this is clear that this plaintiff has no desire to stay at the properties and that the attorneys are using him as a proxy. i now have two options. i can either fight the suit, subject my business, employs, families to months of intrusion and litigation, and pay thousands of dollars in defense fees, or i can settle with the plaintiff and pay his attorney thousands of dollars in which the attorney will likely be the only one with the financial gain. we cannot afford to pay out settlement after settlement and defend against meritless suits. hoteliers are targeted because so many of us are minorities. settling would imply that i'm
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going of violating a civil rights law. it would send a signal to my customers that my hotel is substandard and i do not care for my guests. an adverse decision could impact my ability to attract new customers and to finance additional properties and grow my business. it is a no-win solution. we need to find a solution that discourages attorneys from abusing the a.d.a. for ishonest purposes. h.r. 3765, the a.d.a. education and reform act, is a vehicle that balances the important protections conferred by the a.d.a. with affording small business owners the opportunity to address any issues that may exist. the bill requires a detailed description of a potential problem, a requirement to provide notice, and a cure period in order for the owner to recognize and address the areas of concern. it will also provide a collaborative solution that promotes improved accessibility. mr. chairman, and members of the committee, thank you for the opportunity to testify before you today. i appreciate your listening to
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how an unscrupulous attorney has targeted me and several others in an effort to extort money under the guise of promoting accessibility under the a.d.a. we are hoteliers, we are in the business of hospitality. the crux of our industry is to provide a welcoming, comfortable and enjoyable environment for all of our guests. i ask you to consider my story when evaluating h.r. 3765. please help protect small business owners like myself who simply want to run our business free from the fear that the next envelope we open might be a lawsuit that closes the doors to our hotels. thank you. mr. franks: thank you, ms. hah. i would now recognize our third witness, mr. buckland. and mr. buckland, is that microphone close to you and on, sir? mr. buckland: can you hear me? mr. franks: yes, sir.
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mr. buckland: mr. chairman and ranking member conyers and members of the subcommittee, my name is kelly buckland. i'm the executive director of the national council on independent living. we are the oldest cross disability national organization run by and for people with disabilities. we go by ncil. cil advances the independent iving and the rights of people with disabilities and we envision a world in which people with disabilities are valued equally and participate fully. centers for independent living address discrimination and barriers that exist in society through direct advocacy. these barriers are sometimes architectural, but more often reflect attitudes and principles that have been reinforced for generations. they have deterred people with disabilities from working, leaving many in poverty and unjustly detained in institutions.
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as my long life experience has proven, with increased opportunities, individuals with disabilities can claim their ivil rights and participate in their communities in the same way that people without disabilities do. i broke my neck in a diving accident on july 26, 1970. i have used a wheelchair ever since. coincidentally, the americans with disabilities act was signed into law on july 26, 1990. by president george h.w. bush. exactly 20 years to the day after i got my disability. therefore i had 20 years of experience living with a disability prior to the americans with disabilities act and now i have 26 years of experience living with a disability post-a.d.a. fortunately the a.d.a. has literally changed the face of the globe. although i'm honored to be here, i am here to testify in opposition to these so-called a.d.a. notification bills.
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as congressman sensenbrenner, conyers and nadler know, the original a.d.a. and the 2008 amendments which were passed and signed into law, passed because people with disabilities, bipartisan lawmakers and businesses worked together. the various efforts to make it harder to bring a title 3 lawsuit have never followed the same process. and never enjoyed support from people with disabilities or the organizations that support them or the organizations that represent them. people with disabilities don't want more lawsuits. we want more accessibility. adding a notification requirement won't make the multiple lawsuit phenomena go away. it simply sends the message to business owners that they don't have to worry about complying with the a.d.a. until they get a letter. in most parts of this country, it is very difficult to find a lawyer who is interested in bringing an a.d.a. complaint against a place of public accommodation, because they can't collect damages.
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when the a.d.a. was enacted as a compromise between the disability and the business community, the disability community gave up the ability to obtain damages under title three of the a.d.a. by allowing injunctive relief in attorney's fees. unfortunately there are still businesses and companies who have yet to comply with this important civil rights law, even after 26 years. the problem here, that these bills are trying to address, have little to do, if anything, with the a.d.a. title three does not provide for damages. settlements are court orders -- or court orders only can involve attorneys' fees. and in the states that some of the witnesses are from, those states' statutes, like california, which has been mentioned, allow the people to get damages. that's why california changed its law. damages aren't allowed in the a.d.a. there's no need to change the americans with disabilities act. there's lots of information out
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there, there's lots of technical assistance people can get on how to comply with the law. there's even a phone line you can call to get information and there's a website. there's lots of free technical assistance to businesses who actually want to comply with the law. the a.d.a. does not require businesses to do anything that would be considered an undue burden. which means that it's not readily achievable -- i mean, is readily achievable and it can be accomplished without much difficulty or expense. i just want to say, some of the stuff that's been -- i'm going to not go through the rest of my written testimony, but some of the stuff that's been talked about around building stuff and people who need compliance, the state that i hail from, idaho, we changed the building code in the state so that when people do get a building permit their building's going to be built according to the americans with disabilities act. and the act really requires or gives people ranges that they
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have to put stuff into. like, for instance, ms. ky can fit under this table. i can't. that's why the act allows for ranges instead of exact numbers that have to be met. so, with that, mr. chairman, i know my time is running out. but just in closing, i would like to recognize the wife of mr. justin dart who is known as the father of the a.d.a. in the building. with that, mr. chairman, thank you very much. mr. franks: thank you, mr. buckland. welcome. i would now recognize our fourth and final witness, mr. weiss. is that microphone on and close? mr. weiss: yes, can you hear me? mr. franks: yes, sir. mr. weiss: good morning, mr. chairman, ranking member cohen, mr. conyers and members of the subcommittee. my name is david weiss. i'm executive vice president and general counsel of d.d.r. corps. i've been in practice for almost 30 years and general counsel since 2003.
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d.d.r. is a new york stock exchange traded real estate investment trust. we own over 350 properties around the country and puerto rico and have over 113 million square feet. our tenants are some of the most recognizable national, regional and local retailers. i'm here to testify today on behalf of the international council shopping centers, the global trade association for the shopping center industry, with over 75,000 members and over 100 countries, they represent a wide variety of owners, managers and other professionals related to real estate. first and foremost, let me say that the icsc vigorously supports the letter and the intent of the a.d.a. we recognize and applaud the positive impact that the a.d.a. has had on our society. we also support h.r. 3765, introduced by congressman poe, and co-sponsored by congressman peterson, as ways to strengthen accessibility. the primary goal of the
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a.d.a. frankly, i think the legislation that we're talking about today is misunderstood. there's actually quite a bit of agreement related to the legislation. as mr. buckland noted, people with disabilities don't want more lawsuits, they want more accessibility. frankly, we couldn't agree more. we all share the goal of more accessibility. we want full compliance, we want it faster, with less cost, and we want more resources, not less, devoted to improving accessibility. as an industry, our interests are aligned with the goals of the a.d.a. first of all and foremost, it's the right thing to do. many of us have had the experience the challenges faced by family and friends who are disabled. second, it's in our economic best interest to do so. there's a fundamental misunderstanding and misconception that businesses don't support or want to comply with the a.d.a. let me be very clear. more people visiting our
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shopping centers and properties is a good thing. we work with our ten abilities exhaustively to find ways to encourage more, not less, people to come to our properties. and we spend millions of dollars each year to accomplish this. let me be clear again on an area where i think there's also agreement. and that relates to the bad apples. for those persons who flaunt the a.d.a., they deserve the full weight of enforcement. if they choose to ignore compliance and a lawsuit and the threat of attorneys' fees is the only way to force compliance, then so be it. but on the other hand, if a simple notice is the fastest and cheapest way to solve many unintended and often minor areas of noncompliance, why would we not encourage that? unfortunately not everyone agrees with mr. buckland. lawsuits by a small group of lawyers have skyrocketed. 63% increase from 2013 to 2014, over 4,700 lawsuits filed in 015.
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unfortunately there are some whose interests are not aligned with the a.d.a. these attorneys take a different approach. they file first, ask questions later. they sue, settle and move on. their interest is not in actually improving accessibility, but rather only in earning attorneys' fees. many never visit the property, can't tell you what violations may be there, and never bother to confirm whether any alleged violations have been solved. so why do we support this legislation? because it gives the good apples a 60-day window to respond to claims without an immediate lawsuit. it gives 120 days for the opportunity to cure any potential violations. i think we can all agree that this is the fastest, most efficient and most cost effective way to achieve compliance. and secondly, let's not forget that it also enhances education and training and encourages the use of alternative dispute
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resolutions to actually speed up enforcement. and then let's also be clear about what this legislation does not do. it does not stop the right to sue for noncompliance. it does not limit the ability to recover attorneys' fees. it does not change the department of justice enforcement rights. it does not change state laws. what it will do is encourage compliance and stop the unfortunate abusive tactics of a few. with that, i thank you for this opportunity to testify today and i look forward to answering any questions that you might have. mr. franks: thank you. i'll begin by recognizing myself for five minutes. ms. ky, if it's all right, i'll begin with you. mr. poe's bill requires a plaintiff to give a business owner notice of an alleged a.d.a. violation and the opportunity to fix that violation before a lawsuit may be filed.
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as a business owner, as someone disabled, do you believe it's fair to the disabled to require notice and an opportunity to fix the violation before a lawsuit can be filed? ms. ky: it's fair to insert the issue to be itemized. the reason i believe it is fair, because there's so many new updated laws and regulations that have been ritten to. for my mom's shop, there were seven items unnecessarily. n incorrect symbol for the rest room, door mat. that's simple. i was not aware of the new egulation. so if you want us to make changes, let us know. that's what happened.
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if the community, if the citizen knows, this will not happen. i would like to say something. i don't think your building here is accessible. i went to the women's rest room, it's not accessible. and you guys create and make the laws and your building's not accessible. so how do you expect a normal citizen to follow your rules if you're not doing it yourself? mr. franks: thank you, ms. y. ms. shah, critics of legislative efforts to allow for a cure period prior to commencing a lawsuit under title 3 of the a.d.a. have argued that the property owners have a legal obligation to ensure their property is accessible to the disabled. these critics argue that a notice and cure legislation would create a further incentive for property owners not to comply with a.d.a. until they're sued. how would you respond to that criticism? ms. shah: thank you, mr. chairman.
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i would respond to the critics by saying that the fact that they're having an issue with the grace period to begin with shows and implies that they're not here to promote accessibility. all of us here in this room support the a.d.a., support americans with disabilities. we promote it, we think it's great for america. in fact, we want to fix any issues because ultimately that attracts customers to our business and we want to grow our business. so we're automatically incentivized. so a notice and cure provision would help us fix any areas of concern and promote the accessibility versus just the attorneys filing lawsuits immediately to get attorneys' fees. mr. franks: thank you, ms. shah. mr. weiss, has there been an increase in a.d.a. litigation under title three and if so, could you provide the committee with some background on that increase? mr. weiss: yes. i'd be happy to. the number of cases has grown dramatically over the last few years.
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that's the driving need for this legislation. this is both a growing and expanding problem and actually just continues to grow. as i mentioned in my opening remarks, there's been a 65% increase from 2013 to 2014. and the numbers just continue o grow and grow. in particular there are certain states where these cases are growing the fastest. california, florida, new york, texas, arizona. those combined have the largest number of suits filed, over 80% of them files nationwide. california has approximately 40% of the lawsuits. but only frankly about 12% of the disabled population there. so this is an ongoing and ontinuing problem. mr. franks: thank you, sir. i will now recognize the
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ranking member, mr. cohen, for five minutes. mr. cohen: thank you, sir. is the fact that california's got their state on, i think i heard it includes damages, could that not be the reason there's so many of those cases in california? mr. weiss: no, i don't think so. obviously the a.d.a.'s been in effect for 25 years. it's had a dramatic impact across the country. so much so that it is just a part of the way of doing business. in our industry, it becomes second nature. we're constantly updating our properties and ensuring compliance with them. the issues that we're having here are very specific. and this legislation -- mr. cohen: let me ask you this. why do you think california is particularly litigious? that's the question.
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mr. weiss: i can't tell you exactly why some states over others. but i can tell you that it's growing nationwide. mr. cohen: specifically you mentioned texas, arizona, california and florida. there's got to be some -- aren't those the states you mentioned? mr. weiss: that's where there are the most cases. mr. cohen: there's got to be a reason why those four are more than the other 36. do you have a thought? do you, mr. buckland? mr. buckland: i do. those are the states that allow damages. mr. cohen: all four of those states allow damages? mr. buckland: yeah. there's 10 total. mr. cohen: that seems like what they've got in common. that's not a national problem, seems like that -- the not -- ms. shah, you grasp that, do you not? you grasp the fact that those four states are four of 10 and that that might be the unifying or unique factor that causes the burgeoning lawsuits there
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and not something with the a.d.a. in general? ms. shah: sure. it's prevalent across the united states. the properties -- my properties in georgia and the same attorney and the same plaintiff have filed the same lawsuit 100 times. mr. cohen: in georgia. is it a georgia lawyer? ms. shah: yes. mr. cohen: you heard what i was saying in my opening remarks about the possibility of having some type of damages for the folks that don't comply if there was a notice provision, would you agree that there needs to be some type of a stick to punish with some sanctions the folks that don't comply within the 120-day period? ms. shah: yes. the whole idea is you would be able to file the law. mr. cohen: there's already available. shouldn't there be something extra? ms. shah: such as what? mr. cohen: such as sanctions, damages, liquidated damages, some amount of -- ms. shah: yeah. i mean, exactly. you can uphold that and impose sanctions. but remember, at the same time, we're also trying to run our business. we're doing the best we
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can. mr. cohen: but you're a good guy. i'm talking about the bad guys. ms. shah: of course, the bad guys do need sanctions. mr. cohen: mr. weiss, do you agree that would be something that would make your propose albert? mr. weiss: let me start on this damages issue, which you've raised before. first of all, we're not talking about making changes, fundamental underlying changes to the a.d.a. we're talking about legislation which is narrow and focused to a particular abuse for an existing enforcement mechanism. secondly, i'm not sure that damages actually will reduce the problem. in fact, it may well encourage them. more damages means more lawsuits, more lawsuits means more attorneys' fees, it means more time and resources. mr. cohen: damages are only for the people that didn't comply with this program. your program does have a lot of beneficial purposes. yours or ted's or whoever's it is.
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for the folks that don't comply, why not -- the damages aren't going to be a problem for the good guys. it's only going to be for the bad guys. and bad guys always have to be punished. mr. weiss: i think your underlying assumption that this is only a damages issue. take florida, for instance. mr. cohen: no, i'm not saying that. it's probably a damages issue because of where the litigation has exploded. what i'm talking about damages is a way to have another lever out there to make people comply. all you have is the notice. what you make is a harder to bring lawsuit and disincentivizes lawyers from being involved in the process which will involve -- result in less notice of problems. you don't want to have overkill and help the good guys but not the bad guys. mr. weiss: with all due respect, mr. cohen, i don't think this inhibits the
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enforcement of the a.d.a. i think it actually helps enforcement. here's why. we could have -- mr. cohen: mr. buckland, do you think it inhibits people from coming forward? mr. buckland: absolutely. there's no other civil rights statute that requires notice to be able to fix the problem before you can bring suit. no other civil rights. but they're wanting to put it in this one. it absolutely -- i'll give you a couple of examples. i was in virginia beach, there's a time share down there. if we sat through, like i'm sure a lot of you have experienced this, if you sit through a presentation, they give you some reward, so the reward was to be able to go on this whale watching tour. we sat through the presentation, me and my wife and my son sat through the presentation, they gave us our whale watching tickets, and by the way, none of the time shares -- i couldn't have purchased any of the time shares because they're all inaccessible. not a single time share didn't
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have a step in front of it. they're all inaccessible, so then we go to the whale watching tour and they tell me they don't take people in heelchairs on their tours. so i talked to the guy that took the tickets and said, you aware of the americans with disabilities act, he said, yes. that doesn't apply to us. i said, where's the manager? can i speak to the manager? i'm the manager. i said, so you still don't think the a.d.a. applies to you? he said, no. so, when i got back home, i talked to the department of ustice and we went into -- where you work it out between you. we did that. they, with very little expense, have a ramp to the boat. now they take people with disabilities on their whale seeing. nother one that happened recently is there's a business association here in washington that i went to, could not get in the front entrance was not
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accessible, couldn't independently enter the building either. i told them all of that. i gave them resources to get information on what the fixes were. i checked back with them about 2 1/2 months later to see if they'd made any progress on making their building accessible, i got no response. so i waited for about another two weeks. sent them another email asking if they'd made any progress. no response. i did that three times with no response. then i made a phone call. they weren't in. so i left a message. no response to my phone call. frankly, that is most of the responses you get. when you notify people that there's a problem, you don't get any return response. that's what happened to me over and over. mr. cohen: thank you, sir. i appreciate it. my time's out. thank you. mr. franks: i now recognize the gentleman from iowa, mr. king. mr. king: thank you, mr. chairman.
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i thank the witnesses for your testimony here today. i'm just think being how the americans with disabilities act n a way changed my life. i want to put this narrative into the record. i happen to have been the only public building in the community that was wheelchair accessible right after the passage of the a.d.a. and so they came and asked me, would you be the host of the republican caucus in your community, and i said, sure, i'm happy to open up my doors and help people out. and then i became the chairman of that caucus and now here i am in congress. i'll just slip that in. i don't know how many different implications there are. i'm sure it's affected your lives more than it's affected mine but it's ironic that if that meet hg never taken place, who knows what i'd be doing today. so i wanted to ask, i wanted to ask especially mr. buckland and i'd ask if you could be brief in your analysis of this, but you lived through 20 years prior to the a.d.a. in a
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wheelchair and 26 years afterwards. you probably didn't see the immediate results of that because we had a lot of new construction that took place and refurbishing that took place. i don't have any doubts that changed a lot of accessibility and you've seen it incrementally from your eyes. the question back then in 1990 was, do we require compliance with the a.d.a. only on new construction or also for existing buildings and facilities, and i recall going in and doing curb cuts and making wheelchair accessible and i'm wondering, why didn't they have that when we built a sidewalk in the first place. it was a huge oversight on part of our society not to see how simple and how cheap that part of the a.d.a. could have been. what would it be like today, do you think, if the a.d.a. had been written in such a way that new construction complied but old construction was voluntary?
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what kind of progress do you think we would have made in the last 26 years? mr. buckland: very little. if you walk around this town, most of this is old construction. so if we hadn't applied the a.d.a. to existing structures, nothing here would be -- or, not nothing, but a lot of the buildings here wouldn't be equired to comply. mr. king: and these beings especially, some of the oldest buildings here, in my neighborhood it would be different, for different reasons. we have a lot of new sidewalks and a lot of new curb cuts would have been done. but i just want to ask your perspective, you gave it to me and i appreciate it. ms. shah, you mentioned that there are essentially a copy and paste, 100 lawsuits from a single lawyer. those lawyers in many cases,
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either you or ms. ky, that said that lawyers had not been in he facility. so i'll ask each of you, first to ms. shah, what does that list of plaintiffs look like? when you've got a lawyer with 100 suits that are copied and pasted, what's the list of the plaintiffs look like on each of those suits? ms. shah: in my case it's just one plaintiff. he's using -- the attorney's using that one plaintiff to fish out other properties in the area and slap the same lawsuit on them. mr. king: have you looked at the plaintiffs in those other lawsuits that were filed by the same attorney? could it be the same plaintiff in some of those cases or even all of them? ms. shah: yes. in this case it is the same. my father received the same lawsuit, same number of pages, same attorney, same plaintiff, at his property. mr. king: there are 98 others out there. what's the likelihood that that same plaintiff has also been utilized by the same attorney in a number of other cases in addition to you and your father? ms. shah: there is a likelihood that there's the same plaintiff, same attorney.
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there's also other plaintiffs and other attorneys. it's an ongoing case. you can have one plaintiff suing 100 properties, using the same attorney. and that same attorney may want to settle 100 properties, you average $5,000, that's a lot of money. mr. king: i'm just trying to get to concept of how this works in the attorneys' office. you have an attorney that's hotel chasing. and he decides, i have a plaintiff here. we're going to file potentially 100 lawsuits and you be the plaintiff, i'll be the attorney and we'll collect this money at the expense of the businesses. that never had a chance of a notice to cure, never an opportunity to even know that they were potentially out of compliance with the a.d.a. i look at that and these plaintiffs then, what's the likelihood that the plaintiff had never been in the building before the suit was filed? ms. shah: i think each case varies. in my case, i looked back one year to check the reservations, first name and last name ever matched, and there was no record of that person ever
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taying at our hotel. mr. king: ms. ky, would you concur with testimony of ms. shah in your experience? ms. ky: yes. on that particular day, this individual sued three locations in our city. same person. and he does not live in the city. and that particular day i was not at the shop. i came back from doing my errands and i got a package. i asked everybody, no one knew ho he was. i asked a medical facility that provides wheelchairs, just to make sure if he registered with them or bought anything from them. they don't know who he is. recently they did -- kind of investigated on this individual. he's able-bodied. he goes to places and uses wheelchairs to get what he
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does. he puts the wheelchair back in the truck. mr. king: isn't that fraud? ms. ky: that is fraud. we need to stop this. we need to stop this fraud. we need to stop this ridiculous using a.d.a. to get what they want. mr. buckland said that this facility, he contacted three times, no response, please, go sue them. that's the price. whatever needs to be done. yes. but give us a chance. myself, ms. shah, we don't have any barriers in our facility, no barriers. just because we don't have the information that you folks change, the lawyers have no right. it's not a barrier. it was a barrier, please, come after us. mr. king: thank you very much. i thank the witnesses and yield back.
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mr. franks: i now recognize the ranking member, mr. conyers, for five minutes. mr. conyers: thank you, chairman franks. i thank the witnesses. could i begin by asking unanimous consent to enter into the record 14 letters from rganizations that have a variety of objections to the measure that we're examining today, the consortium for citizens with disabilities, paralyzed veterans of america, the national -- the leadership conference on civil and human rights, and plenty of thers. could i ask unanimous consent, they take strong exception to this measure and i ask that these letters be included in the record. mr. franks: without
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objection. mr. conyers: thank you, mr. hairman. i wanted to just ask mr. buckland, we're all friends here, if mr. weiss' testimony raised any objections in terms of your experience as someone that's disabled? mr. buckland: mr. chairman, mr. conyers, i mean, the whole issue around the written notice and that you have to wait a certain time for it to cure, all that stuff, like i said in my testimony, i think that will incentivize businesses to not do anything until they do get a letter. i take exception to that. i also think that, like, just naming the number of lawsuits doesn't mean that's a bad thing. if those businesses were out of compliance, then why is that a
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problem, that they got sued for being out -- for breaking the law? i don't quite understand that. so there was no mention about whether or not they were valid complaints. they're just numbers. i'm not sure that that -- this results in being a bad thing. mr. conyers: would it be helpful if the committee knew what the results of all those lawsuits were? mr. buckland: yes, i think it would. and then i also think that the department of justice could provide this committee with some information about how many complaints they've received, what the complaints were about, how the complaints were resolved, that sort of stuff. mr. conyers: mr. chairman, i'm hoping that we might be able to follow through on both my suggestion and mr. buckland's in terms of getting a little bit more detail on some of these cases.
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now, mr. buckland, we have four witnesses here this morning, you're the only one that is opposed to this measure. so i wanted to ask you, what does the presuit notification mean for the private enforcement of the a.d.a. and what would happen if enforcement is left only to the attorney general, if private lawyers stopped bringing cases? mr. buckland: i think you stated the obvious, mr. conyers. hat will happen if our ability to file suit is impeded, then we have less enforcement. like i mentioned before, the businesses will just wait until they get a letter. our experience really has been, as i mentioned, it's difficult to find attorneys that will
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take cases, except for those states that allow damages. i think this is really more of a state legislation issue than it is with the american disabilities act. mr. conyers: i do too. proponents now of presuit notification argue that it's reasonable to give businesses the opportunity to cure a violation before a lawsuit commences. but how might such a notification scheme affect oluntary compliance? mr. buckland: you'd have that waiting period, the notification would disincentivizes attorneys. but, i'm going to ask the opposite question. why do they need to be notified? the americans with disabilities act is out there. there's lots of information about how you can comply. i mentioned that before.
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there's 10 a.d.a. centers, one in each region of the country. and they have expertise on the americans with disabilities act, what it requires to comply. they'll even come out to your business and talk to you about what you need to do. so they should be proactive. and they should be -- they know the law's there, they should get the technical assistance, they should come into compliance. mr. conyers: i think that's a very good response. and you've answered all my questions very appropriately. mr. chairman, i yield back the balance of my time. mr. franks: i thank the gentleman. i now recognize the gentleman from florida, mr. deutch, for five minutes. mr. deutch: thank you, mr. chairman. thank you for holding this hearing. the americans with disabilities act fundamentally changed our society for the better. it both literally and figuratively opened the doors of public life that had been closed for too long. i believe that any efforts that we undertake to address abuses under the current law have to protect the progress that's
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been made and we have to continue to ensure that our society is open to everyone. the goal that we all share is widespread compliance, full compliance with the a.d.a. retrofitting older construction, showing that all new construction is built exclusively from the start has always been the guiding principle. i appreciate that the original compromise that created the a.d.a. was designed to balance our national interest in accessibility with the desire to make private businesses allies in this endeavor rather than our adversaries. i don't want to upset the original balance that makes it -- in any way that would make it harder to work together toward our common goal of compliance. but i believe that we have to exercise strict oversight to ensure that we're achieving continued progress to accessibility. that's what the a.d.a. is meant to provide. if abuses of the process work against those goals, then i think it requires us to stop and pay attention. if florida, which we talked about earlier, in my own state,
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more than one in five a.d.a. claims filed last year originated in the southern district of florida. businesses have to retain the right to do the right thing. there has to be an incentive for them to do the right thing. the threat of a lawsuit is powerful and it works. but for honest, good faith actors who are making easily correctable small fixes, things that would take a few minutes to remedy, we have to have a process that allows them to make these fixes. to adjust a grab bar. to rehang a coat hook. and to be able to do it quickly without a lawsuit. i don't take the idea of good faith lightly. it should be difficult, a difficult standard to meet. it should show that businesses are in partnership with the american people in creating a society that is accessible and is welcoming to everyone. the public life is for everyone and we want a society where small businesses can thrive doing business with veryone.
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mr. weiss, i've been told that some of the worst of the repeat plaintiffs don't even bother to follow up to see if the infractions have been corrected. which tells me that complaints often are about extracting money than about making a facility more accessible. the code enforcement officer in delray beach in my own part of south florida was quoted as saying, they don't care if you fix it or not, the businesses pay between $5,000 and $12,000 and it goes away, people are taking complete advantage, it's a money maker, it has nothing to do with compliance. in your experience, what's been the follow through of plaintiffs postsettlement? mr. weiss: i'm sorry to say it's virtually none. that's part of the problem. we spend millions of dollars ensuring our properties are
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code compliant and compliant with the a.d.a. and we have millions of dollars invested and we have attorneys essentially that come to us with their hand out, with vague claims of noncompliance they don't have specifics and they never bother to follow up as long as you have paid to settle a suit. as a follow-up, i guess i would mention in your district, mr. deutch, this has become -- this is not just the icsc issue, there are press reports, there was one this week of a serial plaintiff filing a thousand lawsuits. in response to mr. cohen's question about the lawsuit, california has passed legislation to try to curb the abuse of lawyers that he thinks will help, there are abuses going on so california has passed legislation as well to try to limit the abuses that are occurring there. mr. deutch: mr. buckland, isn't there a difference between a
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usiness owner who refuses to include a required number of handicapped spaces for who refuses to make the restrooms accessible, and a business owner who runs a business who has follow all of the technical assistance as best as he or she could, and the grab bar is two inches too high or the paper towel holder is a couple of nches off. r the line on the handicap parking space that is there is drawn slightly crooked? there's a difference between them, isn't there? and shouldn't we incentivize, don't we want the people in the bad actors, to actually have to do what's necessary and lawsuits absolutely, are required to get them to do it,
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but shouldn't we require or give an opportunity to the small business owner who used all good faith to comply with the law, the opportunity to fix something when it might take five minutes to fix instead of making them pay $10,000 or $12,000 when a lawsuit is filed? mr. buckland: with all due respect, if the only issue is the grab bar is two inches off, the business fixes that, there's tissue unless they're in a state with damages, there's no money paid out. you only collect -- mr. deutch: i want to correct that, maybe i misunderstand but the stories aye heard from businesses in my district in south florida where one in five of these cases are filed, the story the guy who runs the bagel shop i stop in in the morning shared another story he, got hit with a lawsuit for one of these very minor
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mistakes, he's used all good faith to try to comply and you're right, he's going to raise it by those couple of inches and it's going to cost him $1,000 in plaintiffs' legal fees which is a cost that he never should have had to incur. mr. buckland: i'm sorry, but unless he's somehow fought against the original complaint, why would there be attorneys' fees? mr. deutch: mr. weiss, can you answer that? mr. weiss: because the suit is filed before the owner knows what the issue is. to get rid of the lawsuit, you nd up settling it. mr. deutch: i think the chairman understands this, and the ranking member of the committee understands, there's no one on this committee who fights harder to keep the courtroom doors open for people who deserve justice in this country than i do. >> believe me, he's telling the truth.
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mr. deutch: but in this situation, all i think we're looking for is the opportunity for someone, for a small business owner, to be able -- who has exercised all good faith, only tried to do the right thing, to continue to do the right thing without being forced to pay an extravagant amount of money given the opportunity to fix it and they ill. i really appreciate the panel for being here, i think this is a really important discussion. mr. chairman, i yield back. mr. franks: i thank the gentleman. this concludes today's hearing. without objection, all members will have five legislative days to submit additional written questions for witnesses for additional materials for the record. i want to thank the witnesses, thank the members, an thank the audience for being here. this hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2016]
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