Bill aims to boost ADA compliance through notification to improve access for all patrons, give businesses more time to comply
Stockton, CA – Standing with small business advocates and community leaders, Congressman Jerry McNerney (CA-09) announced new legislation to promote greater compliance with the Americans with Disabilities Act’s (ADA) accessibility standards within the business community. ADA accessibility compliance lawsuits have hit the Stockton area particularly hard, with some businesses forced to shut down, relocate, or payout large settlements. New York, Alabama, Florida, and Pennsylvania are among other states also affected by ADA-related lawsuit abuse.
The COMPLI (Correcting Obstructions to Mediate, Prevent, and Limit Inaccessibility) Act, H.R.4719, focuses on increasing ADA accessibility compliance among businesses to prevent predatory lawsuits from “high-frequency litigants” that hurt small businesses while not always bringing resolution the accessibility issue.
“I have heard from numerous local businesses who were forced to shut down, lay off employees, pay out large settlements, or change locations because of repeated lawsuits and threats of lawsuits that leave these businesses with little to no financial resources or time to fix the problem and become compliant,” said McNerney. “My COMPLI Act would give businesses a 90-day period after notification of a potential infraction to correct the access barrier. Increasing ADA compliance among the business community is good for the local economy, and it is something we can achieve while at the same time ensuring that aggrieved individuals are still able to bring lawsuits against businesses for ADA infractions. The ADA gives equal rights and access to individuals with disabilities, and I want to make sure everyone has equal access to enjoy the businesses within our communities.”
The COMPLI Act will require a potential plaintiff or aggrieved individual to provide written notice to the owner of the business, by certified mail, which identifies the specific ADA violation and the date and time the individual experienced the barrier.
Some of the most common ADA infractions include: not having enough accessible parking spaces; having non-compliant or missing parking signs; and issues related to loading zones and van accessible aisles.
McNerney’s legislation provides the business owner 90 days from the date of notification that a barrier exists to correct the barrier, before any lawsuit or demand letter can be issued. A business owner may qualify for an additional 30 day extension if he or she attempts in “good faith” to remedy an access barrier but is unsuccessful within the original 90 day compliance period.
Good faith can be determined if the business owner has: secured the appropriate construction permits and hired contractors to complete construction; or has begun construction and has worked to minimize delays in completion.
The business owner must also notify its customers of the ADA violation while it is in the process of correcting the barrier. Businesses must provide this notification to customers within 15 days after receipt of an ADA violation notice.
The California Commission on Disability Access (CCDA) found that 54 percent of all ADA accessibility claims filed in California came from just two law firms, and 46 percent of those claims were filed by only 14 plaintiffs.
“As someone who has used a manual wheelchair for the past 17-years, I understand and appreciate the significance of the Americans with Disabilities Act. However, as a defense attorney I understand that the ADA is severely abused and has become a money making scheme for a small handful of attorneys and serial plaintiffs,” said Rachelle Golden, an ADA defense attorney.
The COMPLI Act defines a “high-frequency litigant” as an individual who has brought 10 or more civil actions alleging ADA violations within the previous 12-month period. The bill aims to limit a high-frequency litigant’s ability to repeatedly file lawsuits in bad faith and encourages business owners to invest in updating their properties to meet the accessibility standards of the ADA.
The legislation also prohibits damages from being awarded to plaintiffs who were not denied reasonable access or reasonable use to a facility because of an ADA violation, in an attempt to curb “drive-by” plaintiffs” that prey on businesses without ever entering them or attempting to engage them in a business transaction.
Lastly, the bill requires the Department of Justice to submit a report to Congress two years after the bill is enacted, which:
· Determines how many people were categorized as a “high frequency litigant” during the two year period in each state
· Provides analysis on whether the bill’s provisions had an effect on the number of ADA accessibility lawsuits filed
· Provides analysis on whether the bill’s provisions have negatively impacted an individual’s ability to bring a legitimate, good-faith accessibility claim
· Recommends whether an attorney’s fee cap should be introduced in the future to reduce ADA abuse
“Most businesses are unaware of what violations they potentially have on their property, and when served with a complaint, they are forced with a decision to fight against the lawsuit, or close their doors. Most often, complaints allege minor, if not trivial violations, that are easily correctable without much difficulty or expense. It is imperative that federal legislature catch up with California state law and provide a notice and opportunity to cure before a lawsuit can be commenced. The COMPLI Act would allow businesses the opportunity to learn of and correct ADA violations before they are forced to engage in costly litigation,” added Golden.
The COMPLI Act is supported by small business and small business advocacy groups.
The Greater Stockton Chamber of Commerce Board of Directors took action on Thursday, February 25, 2016 to “support in concept” Congressman McNerney’s new bill to protect businesses and the community from “drive by lawsuits” in regards to the Americans with Disabilities Act.
“Harassment and threats by the unscrupulous is not the way to accomplish full compliance! Fairness and cooperation will allow businesses to fully comply with the law if given a fair chance. It is important that the State of California follows the lead of Congressman McNerney and does the same,” said Judith Buethe, President of the Greater Stockton Chamber for 2015/16 and owner of Judith Buethe Communications.
Compliance with ADA has also hit many Antioch businesses including Celia’s Mexican Restaurant and the owners of the building where the New Beer Garden is located on West Second Street. The latter had to cut a doorway in the old, brick building and install a new handicap-access door.
“The Antioch Chamber of Commerce is excited to support the new legislation that Congressman McNerney is bringing forth to update the Americans with Disabilities Act to give our businesses the opportunity to improve their facilities in a timely manner and avoid unlawful suits that are ruining their businesses, the jobs they create, and the ability to support their family,” said Sean Wright, CEO of the Antioch Chamber of Commerce.
Excessive ADA compliance lawsuits forced Chuck’s Hamburgers in Stockton to relocate after 55 years of service at the same location.
“I believe that this particular law was a good one when written. The problem lies with the few people that take advantage of the loophole. I’d like to thank Rep. McNerney for his support on such delicate matters,” said Steve Grant, owner of Chuck’s Hamburgers. “I felt that this law wouldn’t be seen for the negative impact it has on our communities and small businesses because it is lawyer versus lawyer and they manipulate the law. I’d like to thank Rep. McNerney for asking people like me to share my experience and offering small business owners hope that laws such as this will be changed.”
“We are excited about the introduction of the COMPLI Act. This is a necessary bill to ensure that the intent of the ADA is unchanged while providing relief to business to come into compliance without frivolous lawsuits closing their doors. We believe this is a great opportunity for the ADA community to work together with the business community to better educate business on the needs and partner on compliance. We look forward to supporting Congressman McNerney on these efforts and advocating for the bill’s passage,” said Bob Gutierrez, Chairman-elect of the San Joaquin County Hispanic Chamber of Commerce.
“We are so very glad Congressman McNerney has authored this badly needed bill,” said Pat Patrick, President and CEO of the Lodi District Chamber of Commerce. “Small businesses have been unfairly singled out and targeted by predatory lawyers taking advantage of ADA laws. The law without an enforcement clause has become an unfortunate opportunity for predatory lawyers. The provisions in Congressman McNerney’s ADA bill will give small businesses a 90-window to bring their business into ADA compliance.”
“This bill will allow businesses the opportunity to comply with ADA irregularities within a reasonable 90-day period without the burdensome legal costs of a civil suit. Small businesses are the lifeblood of our local economy and this bill would protect them from predatory lawyers and individuals who target them to obtain a financial settlement. CVACC supports Congressman McNerney on this legislation,” said Dennis Lee, CEO and President of the Central Valley Asian-American Chamber of Commerce.
“The California Delta Chambers & Visitor’s Bureau fully supports Congressman Jerry McNerney’s COMPLI Act. ADA abuses cost local businesses much time and money. We feel this legislation will help curb some of the excesses,” said Bill Wells, Executive Director of the California Delta Chambers & Visitor’s Bureau.
The COMPLI Act is now referred to the House Judiciary Committee for consideration.
Rep. Jerry McNerney serves California’s 9th Congressional District that includes portions of Antioch and Contra Costa, San Joaquin and Sacramento Counties. For more information on Rep. McNerney’s work, follow him on Facebook and on Twitter @RepMcNerney.