Archive for November 2015

November 23, 2015

Notice & Opportunity to Cure ADA Violations: The Newly-Proposed ADA Education and Reform Act of 2015

A recent bill known as the ADA Education and Reform Act of 2015 (“AERA”) was introduced in October to the U.S. House of Representatives to amend the Americans with Disabilities Act of 1990 (“ADA”).  The bill, H. R. 3765, was introduced by Congressman Ted Poe and would change the procedure a plaintiff must follow when bringing legal action against a business that allegedly is violating the ADA.

Currently, Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. This broad protection has, according to Congressman Poe’s floor remarks on November 3, 2015, caused the creation of an entire industry of plaintiffs preying on small business owners. Poe stated that in California, one serial plaintiff filed over 250 lawsuits alleging failures to comply with the ADA. A second individual filed more than 800, and a third almost 1,000. Moreover, Poe remarked that these lawsuits are on the rise nationwide, increasing 63% in 2014.

As currently proposed, AERA would allow for the Department of Justice to provide education and training grants for Certified Access Specialists to provide guidance for compliance with the public accommodations portion of the ADA. The AERA would also make it unlawful for any person to send a demand letter or other pre-suit notification alleging a violation of the ADA unless the claimant satisfies certain prerequisites, such as providing certain details on how and when the claimant was denied access as well as the specific sections of the ADA alleged to have been violated. If the demand letter was found to be overly vague or misleading, the violator would be subject to a fine levied under Title 18.

Additionally, the AERA would provide business and property owners an opportunity to remedy the alleged ADA infractions before being saddled with danger of legal fees. The provision would give business owners 120 days after receiving a notice to remediate the ADA violations and/or update their business to comply with the ADA. If a business fails to fix or make substantial progress in correcting an identified violation following the notice and 120 day cure period, all of the legal rights for seeking legal recourse under the ADA would still apply.

While many ADA lawsuits are brought in good faith by legitimately aggrieved litigants Congressman Poe stated that the AERA will stem costly litigation and restore the purpose of the ADA, “which is to provide access and accommodation to disabled Americans, not fatten the wallets of ADA trolls.”



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