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ADA Notification Act: delaying justice for people with disabilities.

July 26 of this year will mark the 10th anniversary of the signing of the Americans with Disabilities Act (ADA). Just in time for the commemoration of this law, Rep. Mark Foley (R-Fla.) wishes to dismantle part of it.

Earlier this year, Foley introduced a bill that proposes an amendment to Title III of the ADA. Title III states generally 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."

In Title III discrimination cases, plaintiffs may obtain injunctive relief but cannot collect damages from defendants who have violated the law. However, the ADA does permit the court to award the prevailing party reasonable attorney fees, including litigation costs.

Friend of business

Foley contends that attorneys are taking advantage of the ADA and are filing hundreds of discrimination cases so they can rake in the fees. In his attempt to befriend the business-community constituents of his home state and beyond, Foley has apparently decided that attacking attorneys is a good way to chip away at a federal law that the business community has generally disliked since its inception.

Foley's proposed ADA Notification Act would "amend Title III of the Americans with Disabilities Act of 1990 to require, as a precondition to commencing a civil action with respect to a place of public accommodation or a commercial facility, that an opportunity be provided to correct alleged violations."

The notion of a "precondition" may sound familiar to those who followed Congress's action on the Y2K Act, which lays out a road map for commencing legal action regarding the failure of devices or systems to make a functional transition from 1999 to 2000.

The Y2K Act requires that "before commencing a Y2K action except an action that seeks only injunctive relief," a prospective plaintiff must send written notice detailing the Y2K failure to the prospective defendant. The act then provides up to 90 days for the prospective defendant to correct the problem.

Similarly, the ADA Notification Act would require that before a person brings a civil action, 90 days be given to a prospective defendant to correct an alleged violation.

A notable difference between the notification requirements of the two acts is that the Y2K Act relates to damage actions and makes an exception for actions seeking injunctive relief. On the other hand, the Foley bill specifically targets injunctive relief actions available under Title III.

If the plaintiff does not meet the notification requirement, Foley would have the court impose sanctions on the plaintiff's attorney. If the requirement is "subsequently met and the civil action proceeds, the court may not ... allow the plaintiff any attorneys' fees (including litigation expenses) or costs."

This issue has received much attention lately, in part because of the involvement of actor-director Clint Eastwood, who made a cameo appearance at the House Judiciary subcommittee hearing on the ADA Notification Act in May. Eastwood owns Mission Ranch Hotel in Carmel, California. For more than three years he has been involved in an ADA discrimination case initiated so that he would improve access for disabled patrons who visit his establishment.

"After I bought the Mission Ranch Hotel, which dates back to 1850, I did everything I could to comply with the ADA," Eastwood told The Washington Post in the edition that appeared the same day he was due to testify on Capitol Hill.

But according to the National Association of Protection and Advocacy Systems in Washington, D.C., while Eastwood has spent more than $6 million renovating Mission Ranch generally, he has refused to make necessary changes--which would cost about $7,000--to remodel a restroom to accommodate people with disabilities. According to the plaintiff attorney in this case, Eastwood has not offered to improve access in any way or to settle.

The proposed ADA Notification Act would provide an additional opportunity for delay to businesses and other places of public accommodation that already have had 10 years since the ADA's passage to make required improvements. And the bill says to a business owner: The ADA won't hold you responsible no matter how long you're in noncompliance, so long as you make changes when a complaint is served.

Misguided bill

Marcie Roth, director of advocacy and public policy for the National Council on Independent Living in Arlington, Virginia, says Foley's bill is a misguided one.

"If there is a problem with the unscrupulous practice of certain lawyers, there are procedures in place to deal with that. It would be shocking and inexcusable to amend civil rights law to deal with a problem of ethics having nothing to do with disability," says Roth.

Roth has picked up on something that Foley has chosen to ignore: There already are rules in place to sanction lawyers who violate ethics codes and to keep unreasonable fees in check.

More waiting

The bill would provide an additional opportunity for delay to businesses that already have had 10 years to make improvements.

Kristin Loiacono is media relations coordinator for ATLA.
COPYRIGHT 2000 American Association for Justice
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Author:Loiacono, Kristin
Publication:Trial
Geographic Code:1USA
Date:Jul 1, 2000
Words:861
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