Greetings everyone and welcome to a special session in the ADA audio conference series. Today's session Save the ADA risk of major ADA amendments soon by the ADA Education and Reform Act. The Great Lakes ADA center is federally funded by the U.S. Department of Health and Human Services. So we welcome you all today to this session. We have three wonderful speakers who will be presenting today. And there will be an opportunity following their presentation to ask them questions. To view the speakers full bios you can access those by visiting ADA-audio.org and select the link that says speakers. So let me do a brief introduction of our three presenters before I turn it over to them to get under way. With us today from the Paralyzed Veterans of America is. Heather Ansley.
Marilyn Golden is with us. She is with the Disability Rights Education & Defense Fund, DREDF and then we have. Jennifer Mathis who is with the Bazelon Center for Mental Health Law. So I want to welcome everyone and at this time turn it over to our speakers to begin the session.
Great. Thank you. This is. Heather Ansley with Paralyzed Veterans of America. And as today's session is titled our webinar today invites you to get informed about the ADA Education and Reform Act of 2017 which is H R620. Your presenters today will be walking through what is included in this bill, how it would fit within Title III of the Americans with Disabilities Act, the arguments for and against the legislation. And how an individual can make his or her opinions known to their elected officials about this or any other issue.
ADA notification is as a concept has been around for 10 to 15 years, H.R.620 is one of those bills. And the latest iteration of efforts to require that an individual with a disability notify a public accommodation which could be a hotel, restaurant, grocery store, for example, prior to taking an enfoersment action or filing a lawsuit. Opponents of the ADA notification, believe the note type of notification under H R620, would comply without be willing notified of a particular ADA violation.
Proponents of this legislation have focused on the burdens that small businesses face in complying with the ADA, including lawsuits that may be filed against them. H.R.620 includes three key provisions. One of those provisions would require the Department of Justice to develop a program to educate state and local governments and property owners about effective and efficient strategies for promoting access to public accommodations. The second provision would require a person with a disability to provide specific notice to a public accommodation. Again that includes hotels, restaurants, grocery stores, gas stations regarding an arc seshgs tural barrier under the ADA prior to filing a lawsuit. That notice would have to identify the specific provisions of the ADA that were allegeded to have been violated. The lawsuit before -- any lawsuit could be filed the public accommodation would be given a total of 180 days after receipt and notice to make substantial progress in removing the identified barrier. The legislation would also require development of model mediation program to resolve claims of architectural barriers to access. Jennifer.
Okay. So this is Jennifer. I'm going to walk through the structure of the Title III in the ADA which is part of the ADA that this bill impacts and the importance of Title III within the ADA. So Title III is the part of the (cutting out).
Jennifer you still there? We seem to have lost Jennifer's audio again. While we get Jennifer connected captioning is available. Participants can access the captioning by clicking the CC icon found in the upper left-hand corner in the audio and video panel. Jennifer, are you able to hear us? Jennifer, are you able to hear us?
Yes, I have been able to hear you. Y'all haven't been able to hear me. I was disconnected and called in again and my line is unmuted. Hopefully things will work. So Title III as I was saying is the public accommodations part of the ADA. The ADA has three main titles, Title I applies to employment of people with disabilities and Title II applies to government services program as and activities and Title III applies to places of public accommodations. I just want to take a couple of minutes to explain what a public accommodation is. A public accommodation can be any number of businesses commercial establishments that are open to the public and there is many different types of such establishments and I am going to walk through the ones that are specifically listed in the law because those -- it covers a wide range of different types of establishments. So one category is (inaudible). The second category is restaurants and bars and similar places. A third category is movie theaters, concert halls and stadiums and other places of exhibition and entertainment. Category 4 is auditorium, other public gathering places. Clothing stores hardware stores or shopping centers or sales. Laundry mats, dry cleaners, banks, beauty shops, travel, funeral parlors, gas stations and accountants and lawyers offices and insurance offices, health care providers, hospitals and other services establishments and category 7 is transportation terminals and depots that are privately operated. Category 8 is libraries, galleries other places of public display. Category 9 is parks, amusement parks or other places of recreation. Category 10 is private schools including nursery, elementary second dae, graduate, post-graduate. Category 11, daycare centers, homeless shelters, food banks adoption agencies and category 12 is gyms, health spas, bowling alleys and other places of exercise. I want to talk a little bit about how Title III was designed to work. It was really designed as a preventive measure to ensure that proactive steps are taken so that when a person with a disability shows up there is access that is expected as opposed to the person showing up and only at that point in time being able to begin triggering any rights. So Title III does not include money damages to compensate people for past harms other parts of the law do include money damages but Title III does not. Title III allows for injunctive relief. You can fix the problem or remove the barrier. That's the kind of relief that Title III allows and that structure is premised on the barriers and it has been removed at the time when people show up at a place of public accommodation. And the -- a person with a disability could seek immediate relief and can't be compensated for a period of time when they have been excluded. Title III has been in fact, as the whole ADA has for nearly 27 years it was passed in July of 1990 and with specific access requirements in Title III has been in effect since 1991 woon dego -- we did undergo a significant change. One time they were overhauled in 2010. Though the ADA has been in effect and the obligations under Title III have Ben if effect since 1990 and the latest change in access requirements was 2010 or seven years ago.
And I'm going to talk a little bit about some of the arguments that the business community has made to justify this bill and other similar bills, with a notice and cure period of time that would amend the ADA. So the first requirement which was alluded to is claimed to be onerous for small businesses to understand the specific access requirements in the ADA and obligations that take under the ADA. The primary point that you will hear by proponents of the bill is driveby lawsuits. What that means it has been used to refer to people who file a lot of lawsuits and driveby the idea is that a person with a disability is not actually going in to each of the businesses in question. So if somebody were to file a number of lawsuits against places down a block or in a neighborhood, that some people have characterized that as driveby lawsuits if the person is not actually going in and patronizing each business. There has been -- that characterization doesn't distinguish between people that file a lot of lawsuits, whether or not the lawsuits are I guess people who file fraudulent lawsuits or lawsuits that really represent unscrew pu Lous practices versus people who file a lot of lawsuits but all that is I think -- falls under driveby lawsuits when it is characterized as driveby. The final point that the business community, the point is to -- they have pointed to practices of some lawyers where they will send a demand letter to a business that is demanding payment rather than access. In other words, saying you have the violation of ADA that was identified and please give us X amount of money and we will go away.
Not actually saying fix the problem. But trying to extract money than fix the problem. And I'm going move on to the disability group concerns and disability group responses and I will hand off to Marilyn.
Marilyn? I believe someone else's line -- okay. Marilyn we can hear you.
Thanks very much. Greetings everyone. Before I go in to the slide which begins a series of explaining disability organizations concerns about notification proposals very much including H.R.620, I wanted to make a comment of context which we may not have included which is from the perspective of the disability community as Heather was explaining there have been bills before of one type or another to try to force this kind of provision to be added to the ADA. This kind of limitation of the enforcement provisions. But they have been back in time. Some have discounted them as, you know, we have always -- the disability community has always been able to stop them. There has been increasing level of business pressure and this year this is the highest we have seen and, you know, very serious concern about the bill moving. And so we really appreciate how seriously -- seriously as possible people taking this bill. So Jennifer described what the business groups have said. We want to talk about what the disability groups concerns are. First starting about the bill itself and then a little bit later responding to specifically to the business groups objections. There are -- the disability groups like my own, I was with the Disability Rights Education & Defense Fund and we have been working with many other disability groups to fight this bill for many reasons. In general because it would weaken the American with Disabilities Act or ADA, a critical source of rights for people with disabilities to businesses such as stores, restaurants, hotels, and, et cetera, all the other categories Jennifer explained earlier. It would turn people with disabilities in to second class citizens. It would undermine the very principles of an influential society that our country is all about and though the business community has offered many concerns about small businesses, this bill applies equally to the largest as well as the smallest business.
Another of our major concerns getting down to specifics one of the very biggest is that as the law sits today businesses have an obligation to make themselves accessible. And there can be consequences if they don't. Now what are business obligations to make themselves accessible? They are very reasonable and I'm going to put an asterisk there and come back to that later. If they don't comply with the reasonable requirements of the ADA, there is a consequence if they don't as of today. As of the original law and as of it still applies. But if this bill passed under the regime of H.R.620 there would be no consequence and thus no incentive for businesses to comply with the ADA. If you take a wait and see attitude until they get this notice and then begin to take efforts to comply which is a huge problem because one of -- the way Civil Rights works is providing an incentive to comply.
It is also really important to remember and I think the disability community is well aware of this, but sometimes the businesses that we try to patronize and other people of the general public including our own legislators really forget that we are talking about problems out in the world that are still there that have real life impacts on millions of people with disabilities. Who often cannot shop, cannot transact personal business, cannot enjoy recreation or do any number of other opportunities our society offers who cannot do what their nondisabled neighbors can take for granted because so many public accommodations that is private businesses and other private establishments across the country have ignored the very reasonable requirements of the ADA. The ADA makes a difference between participation and exclusion on a daily basis in many people's lives. There is so many examples I'll just throw out one. If you your family is holding a family reunion in a particular restaurant facility and that fa silty has not made its rest room accessible why should you as a wheelchair users not be able to join your family because the restaurant owner has not made changes in the bathroom or a ramp for over 25 years.
This is Peter. If you could just announce the slides so we can keep folks that are participating telephone oriented to where you are in the presentation, please.
We'll do, Peter. Thank you. I'm moving on to slide 20. The way the bill does these things burdens people with disabilities because it requires a person with a disability to encounters access barriers to send the business a written notice that includes the exact provisions of the ADA that aring violated. So unless you have -- happen to be someone who has the ability to do that which most of us don't, it will necessitates an attorney, an expert of some kind, the ADA should not place the heaviest burden for ending discrimination on the very people the law is supposed to protect. People with dis abilities should not have to consult a lawyer on a routine basis to use places of public accommodation.
Moving on to slide 21. H.R.620 gives the business owner 60 days to acknowledge that there is a problem. All right.
Slide 21. Gives the business owner 60 days to acknowledge that there is a problem and another 120 days to begin to fix it. No other Civil Rights group, no other protected class is forced to wait essentially half a year to be able to begin enforcing the law against discrimination against them. Even at this point the business consequences for violating the law could be for a long time. If it takes advantage of implementation periods to remedy the violation before a lawsuit is permitted.
Moving on to slide 22, we want to explain how the disability community responds to some of the complaints made by the business community that they are saying make it necessary to have a goal of this nature. One of the very most important to us at DREDF the ADA is very crafted to take the needs of the business owners in to account. Remember that existing businesses that is businesses where their buildings are not being altered, being remodeled for their own purposes, businesses that are up and running and not changing their building, all they are required to do is to provide disability access where doing so is "readily achievable". That's a term right in the law. And it is defined in the law as easily accomplishable and able to be carried out without much difficulty or expense. That definition has been nicknamed cheap and easy as a way to help people remember it and to make us all smile and also to underscore how reasonable it is the readily achievable standard is very deliberately flexible based on the situation and the main thing that it flexes on really the main sort of beauty of this part of the ADA, one of them, is that it is flexible based on the resources available to the public accommodation. So if the public accommodation is a giant five star hotel or maybe five star hotel chain, they would likely have more resources available to them and doing what is readily achievable would mean doing more than say a small individual mom and pop restaurant or a store, corner store. And so to that small less prosperous facility they have fewer resources. So what is readily achievable for them is probably much less expensive to do. And it is -- so it is only required to do what is readily achievable which is sort of, you know, could hardly be more reasonable. H.R.620 changes this careful compromise that was originally designed by a bipartisan Congress that Jennifer was talking about it should be accessible when you get there and ignores the reasonableance and wrecks havoc with the entire ADA steam. This weakening would do major damage to the ADA disability rights protections.
>> The next slide is Heather I think.
Another concern of -- this is Heather. Another concern of the disability groups is that ADA compliance would be treated differently than other types of compliance required of businesses. Establishing and running a business often necessitates compliance with many laws and rules and many of us as society we would accept that is the cost of doing business. Society would further expect that small businesses and other businesses may be required to pay taxes and the other applicable health appear and safety codes and violating the rights of people with disabilities with a compliance problem under the ADA should not be treated differently than compliance problems with other applicable laws and rules and regulations that businesses are subject to.
Slide 24, in addition disability groups have pointed out that extensive technical assistance is currently available. Unfortunately many businesses and even those in the disability community seem to be unaware of the extensive efforts that are available to help educate individuals and businesses about their ADA obligations. Some of the technical assistance that is available includes the Department of Justice' website on the Americans with Disabilities Act, ADA.gov which includes extensive DOJ technical assistance materials, the DOJ also has an ADA hotline. 800-514-0301 is the voice line or 800-514-0383 is the TTY line. There are also the, of course, the ten regional ADA centers that receive funding from the Federal Government in part to be able to provide in-depth resources and training in every state. And those ten regional centers have a wealth of information available on their individual websites and also collectively on the ADA TA.org website.
This is Jennifer. Moving on to slide 25, again focusing on disability community responses for concerns that have been raised by the business community. One of the concerns that has been raised is the Spector of large monetary awards and litigation being very expensive for that reason and businesses obviously having desire to avoid expensive litigation, the disability groups have pointed out that because as we talk about Title III it does not authorize damages. It only authorizes injunttive relief or fixing the problem. The disability groups have pointed out that damages, damage remedies in these cases tend to be a state law issue because often people will file claims both under the ADA and under state law or sometimes only under state law and so in many states and in certainly a number of states damages are available and so they still and other similar notices cure proposals would not actually address that issue because they are focused on the ADA anyway. The federal bills because since the ADA doesn't have damages, these changes would not affect any awards of monetary relief because they are just not available under the ADA. So in other words, disability group has pointed out if you are concerned about money damages, that's a state law issue. That's not a federal issue. And this bill would not address that issue. Would do nothing to change the prospect of large monetary damages.
Moving on to slide 26, the ADA accessibility standards disability groups have pointed out are extremely important and are not based on minor concerns. They are not technical issues as has been I think suggested by some of the proponents of the bill. The disabling group the have said they are essential to assure true accessibility and those standards are set by the U.S. Access Board. There is extensive process that the Access Board goes through to set the standards and it is based on real people's needs, needs of people with disabilities and it is based on averages and those standards people in the disability community have pointed out are there for a reason and not minor and not technical and should matter as some folks have said. So if a doorway is just a couple of inches too narrow, it may not be a minor issue because somebody with a chair may not be able to access the business if they can't get in the doorway. Similarly a grab bar in the bathroom that's just a little too high may not be a minor issue for somebody if they can't actually use the rest room because they can't access the grab bar because it is too high for somebody and a chair to reach.
Moving on to slide 27, again the proponents of this bill and similar ones have sometimes cited frivolous lawsuits and serial lit Gants. In the beginning I talked about driveby lawsuits and disability groups have responded to that and said that vast majority of Title III cases that have been filed the lawyers and plaintiffs are seeking solutions to fix real denials of access. These are not frivolous and it is important the disability groups have pointed out to understand the distinction between filing perhaps a lot of lawsuits and filing frivolous lawsuits or abusive lawsuits. There are sometimes people will have conflated these two things and certainly as people pointed out simply filing a lot of lawsuits may reflect that there is a lot of violations of the ADA, a lot of inaccessible businesses. Trying to address widespread inaccessibility doesn't make somebody as necessarily a bad plaintiff. There is, you know, definitely a distinction between a high volume of litigation and unskruP Lous practices or abusive practices. And for the rare cases where people have filed fraudulent claims or engaged in unscrupulous practices such as the demand letters that we talked about in the beginning, which say give me X amount of money I will go away. There has been and the disability groups have pointed out existing mechanisms to deal with those issues and the ADA is not unique in that way. There are abusive practices under the ADA law and not anything in particular that invites abusive litigation but we have seen and there are plenty of examples of both courts exercising their authority to impose sanctions on lawyers who have engaged in abusive pla practices under the ADA as well as state bars that have imposed sanctions or discipline on lawyers who have engaged in either fraudulent lawsuits or unethical lawsuits. And so there are examples where, for example, people have been sus pended from practice by the bar for engaging in frivolous litigation or fraudulent litigation in an areas. There have been examples where courts have ordered a lawyer to seek leave of court to proceed in another ADA Title III case and there have been examples where court ordered a lawyer to file a copy of the court's order and other similar cases where the lawyer was making a certain argument and so there have been mechanisms that have been used, in fact, to deal with these issues and there is not a disability groups have pointed out a need for a new law or amendment to the ADA to deal with those kinds of practices in the rare instances where they occur. And using those existing legal mechanisms rather than denying people's rights under the ADA the disability groups have pointed out there is is a preferable mechanism. Moving on to slide 28, and I think that this is Heather. >>
Yes. This is Heather. So now that you have heard the positions on both sides of this particular issue including some in-depth discussion, this provides an opportunity for each person to decide where they stand on this particular issue. Slide 28, again it should be slide 29 but it shows slide 28 for the second time. Talks about how you can educate yourself about an issue and we wanted to just discuss briefly, you know, this would work for -- for this issue but also any other issue is how do you determine what your position on something should be. And, of course, you should investigate and decide for yourself. That's one of the main pieces of that. And to do that you can review information that's available from organizations that you trust, organizations that represent your values. You can look at social media for these particular organizations. You can talk to family and friends. You can look at what you see in the news on a particular issue. And then make some determinations again based on the information that you have read about what's happening as to how you believe that you should move forward. Marilyn.
Thank you. We are now on slide 30. If you want to speak out on this or any issue, how do you do it? . You can contact your elected officials, including members of Congress and express your opinion. You can write blog posts from websites and send off edits and -- and send op eds and letters to the editor of your local newspaper or any newspaper, big newspaper in your state or national newspaper. You can follow issues via social media plat fors like Twitter and Facebook and share your opinion and connect with others who share that opinion. And these days you can use Twitter and Facebook to contact your member of Congress also.
Moving on to slide 31, more specifically if you -- and by the way, these links are live. I believe you have the powerpoint presentation available to you. You can also look at the materials for I think for this Webcast or at DREDF's website at dredf.org. The beginning of our acronyms at the beginning of the slide show dredf.org has alerts and more information. But can find out who your members of Congress are if you don't know by vi visiting the www.house.gov or www.Senate.gov to find who they are.
You can also visit websites like contactingCongress.org which allows you to insert your zip code to find many simple methods first of all that will bring up to your Congress people are in the house and also in the Senate. This bill is right now in the House of Representatives. If it moves forward it may be introduced in to the Senate.
ContactingCongress.org once you know who they are shows you ways to -- which you can fibd out by inserting your zip code, then it shows many simple methods for contacting your method of Congress through your that website by e-mail, by phone, also using social media, by Facebook, Twitter, fax numbers for letters, et cetera. You can also call the U.S. capital switchboard at 202-224-3121. They can connect you to your member of Congress. They will help you find your representative's name if you don't know. And switch you to their office.
If you want to see the bill's actual language, there is a link in the DREFD website in the alert to the language. If the alert is in your materials, there is a link to the site for H.R.620. So you can read for yourself.
Moving to slide 32, what can you say to communicate your opinion? You can inform your elected official of your position. You can explain your position using anything you know about the bill. Possibly including some of what we have discussed today or other things that you read in your materials or from organizations that you are connected to. We strongly encourage you to personalize the communication by talking about how the issue impacts you or your family. Or perhaps if you work at an organization how it impacts your members or your clients. Stories are probably the most powerful way to get across what this really means to everyone, including our elected officials. And now we move on back to Robin I believe. Or excuse me to Peter.
All right thank you. Thank you all very much for -- sorry. Thanks Marilyn and Heather and Jennifer for the great overview of the proposed legislation and looking -- presenting, you know, both sides of the issue from the business community and the disability community and what the issues out there. Those of you in the webinar platform you can continue to submit your questions in the chat area and those of you who are connected by telephone you can submit questions by sending them to email@example.com. Let me ask, Heather, two different questions just basic information about the legislation, itself and see if -- two different individuals. One wanted to know when bill was proposed within the House and then who was the original sponsor of the legislation. >>
Certainly this is Heather. So the original sponsor of this legislation is representative Ted Poe out of the state of Texas and the other cosponsors who were original cosponsors included Scott Peters and he is a representative out of California. The legislation was introduced this year on January 24th.
All right. And then Jennifer, if I could get you some -- give us is basic civics lesson. You briefly explain to participants what happens with the legislation. Where it is currently within the house and what the -- what possibly would happen for it to, you know, possibly become law.
Sure. So the bill is referred to the house judiciary committee and that's where it is right now. What has to happen in the next step if this bill proceeds is that the judiciary committee would vote on it. Sometimes the committee would have a hearing because they had a hearing on this bill last year, I think their intention is not to have another hearing this year. That they would simply move to what is called a markup which is where they would consider the bill and vote on it. And so that has not happened yet at this point. It may happen soon. I think the expectation is that it probably will happen very soon. Some time in the next several weeks. That's on the house side and if it goes through markup and it passes through the committee, then what would happen is the next step is would have to get considered by the full House of Representatives and that is depending on when the markup happens the floor vote, if there were one, would happen some time after that, Congress is gone during part of the summer, during August. It might happen before. It might happen later. Depends when the markup is. And it could be introduced a version of this either the same version or a different version could get introduced in the Senate. There was a version that was introduced in the Senate last year by Senate Flate and that may get introduced this year. It hasn't been introduced at this point. But if the Senate has a version introduced then that bill would start moving presumably at some point in the Senate but that's not happened yet. So that's where we are right now. We have one bill -- we have two bills that are similar but one that seems to be moving and that is the H.R.620 that we have been talking about and that is currently sitting in the house judiciary committee and has not been voted on yet but will be probably soon.
Great. Thanks. And Marilyn, if you could -- some questions just as clarity on the proposed bill, folks wanting to understand that the -- that this would apply to Title III only, that's what they are asking and then also get a question asking about whether this would -- in its current form have any impact with regards to lawsuits alleging that websites in inaccessible.
Thanks. This particular bill applies -- is specifically to Title III. Privately operated facilities, businesses or also non-profit facilities. And even more specifically it applies to architectural barriers. This bill is explicit about architectural barriers.
All right. Great. Thanks. And still some confusion amongst some of our participants, wanting to -- someone is asking that weren't businesses grandfathered when the ADA was passed. So I don't know Heather if you want to take that one. >>
Sure. This is Heather. In the Americans with Disabilities Act there is no grandfathering. So businesses still have an affirmative requirement to continue to do barrier removal, even if they do not do some type of remediation to their building or are building a new building. So that is one issue that many people do think there is grandfathering but again there is not. That's not a feature of the ADA.
And this is Jennifer. Just to explain, the genesis of that belief, it may be that what people are thinking about, the way the ADA was structured the obligations were a little different on businesses that are already existing on the obligations on businesses or I shouldn't say the business already existed or if the facilities already existed, then there is a different expectation from what happens than if business is using a new building, the idea behind the ADA was to draw this line to say for things moving forward we expect that people building things a new will use the accessibility standards that they are setting out and -- or if you are altering the piece of a building then you will use a new standard for going back and retrofitting existing premises, existing facilities, that's where the standard is that Marilyn talked by which is this readily achieve able barrier removal that you can do it without significant difficulty or expense. Which is cheap and easy to do. That may be what people are thinking about what they asked about grandfathering.
Thanks. Marilyn, staying on that topic for a second of barrier removal and that -- that proactive obligation that currently, you know, exists in Title III of the ADA, does the -- does the proposed legislation in current form change any of that language? And the priority for barrier removal?
No. What it does is change how the ADA is enforced. And I'm sure someone can tell me immediately which of the Civil Rights icons we admire made the same misstatement that a right without a remedy is no right at all. If you don't have a way to enforce on the ADA, the ADA uses the same kinds of enforcement approaches that were available in every other Civil Rights law before the ADA. And, you know, I don't know how many people on or participating in this webinar have the benefit of being around this long as some of us old timers who remember what it was like before dis ability rights laws and before there was the ADA. We were forced to rely on, you know, persuasion, pressure, maybe social pressure, shaming, you know, the business. And yet it was very -- it was not -- it was very difficult to bring about accessibility where it was not a requirement of the law. So the fact that the ADA imposed requirements of federal law and the fact that it had means of enforcement, made a real difference. There are, you know, many facilities that complies voluntarily maybe to do the right thing. Maybe because there was a lot of education and awareness, at least more than before that accompanied the ADA and maybe some because of concern that they could be sued or have a complaint filed against them. Because that is an another avenue under the ADA enforcement filing a claim with the Department of Justice but they don't open and investigate all complaints. Many they do not. So the avenues people have to enforce their rights under Title III have been few. Fortunately for business the requirements are reasonable. But if you change the law in terms of how those -- how strong the enforcement requirements are, you can in effect limit the rights without changing what is actually required.
Thanks for that explanation Marilyn. Heather a question for you and in to some of the details of the legislation that would require the person that is alleging that the -- that barriers exist. Having to send a letter to the business, is there specific detailed language as to what the person would have to include from the I'm guessing the ADA regulations or from the 2010 standards themselves. Is there specificity at this point? >>
This is Heather. In the language section 3 of the legislation there is a section that is title specification of details of alleged violation and the written notice that's required must specify in detail the circumstances under which the individual was actually denied access to the public accommodations, including the address of the property, the specific sections of the Americans with Disabilities Act that were alleged to have been violated. Whether a request for assistance in removing an architectural barrier was made and whether it was a permanent or temporary barrier. So if this were to become law then there may be some regulatory language put on that to further define what some of those pieces mean but those are the specifications that are actually in the legislation.
All right. Great. Thanks. And let me just address a couple of things here. We had someone that was looking for a link to the bill itself. And I believe that Marilyn you mentioned that is available through the DREDF website, is that correct?
I believe that -- I believe that our award is one of the materials for this webinar. I didn't register as a speaker. I know we sent that in. I can't remember if that got changed. If you don't find that among your materials the DREDF website, dredf.org look back to slide 10, it is perfectly there right now on the captions. Dredf.org, our home page has front and center the California alert we more recently did and before that the slightly a few days older a national alert we did and the national alert and California alert links to the national alert. The national alert has a link to the Congressional site which has the bill history and cosponsors and there is a tab that you can click on that says tex and you can read the text of the bill. That alert also has -- I'm sorry. The alert also at the end has a way to ask questions at firstname.lastname@example.org. If people are having trouble finding where the text is or anything like that, just send us an e-mail there.
Great. And then just real quick, while I got you up, Marilyn, the person also wanted to know what is the best way to monitor the progress of the legislation.
If you are not already -- if you are not plugged in to an organization that's keeping you informed, certainly DREDF will continue to send alerts if the legislation moves. And I was thinking when -- excuse me, when Jennifer was describing the hoops that the bill has to jump through before it can become a law it almost sounds like, you know, why are you worried. It is just barely beginning. You are being a little paranoid. I just think that it is -- we are -- some of us working against the bill are alarmed because of the interest and because of the business friendly environment that we are seeing around us even though the same bill was in the last Congress and it went further than any other one had. So we are just concerned that this one will go even further. And, you know, each step that it goes through will affect the next step either in favor or against the future of the bill. So it is very hard to predict the future. But we know that the stakes are high because of the inordinate importance of having intact enforcement requirements and we want to explain to members of Congress that those enforcement requirements are paired with very reasonable requirements of business. So businesses don't know their obligations and if their business associations don't inform them about them, they may believe somebody who says give me money because they don't know they don't have to. So it is really important and that's why I think the Department of Justice and other federal agencies have done a great job of how to meet these reasonable requirements and I hope my (inaudible) terminology wasn't offensive and I apologize if it was. Thanks.
This is Jennifer. Hopefully some folks are plugged in to existing networks or alerts from different organizations. But if you aren't, another thing that you can do to check the status of a bill you can always go to Congress.gov and this bill is H.R.620 and if you punch that in when you go to Congress.gov you can see what's happening with the bill and you can also sign up for alerts so that it tells, your sends an e-mail when anything new is happening with that bill. So just another thing to know about. And also to sort of follow up on what Marilyn said about, you know, the who said a bill has to go through. Every bill before becoming a law has to go through a fair number of hoops but that doesn't mean that bills aren't going to pass and many bills actually never make it to a markup. So I think it is significant and certainly I didn't mean to suggest by describing some of the hoops that, you know, there is no movement on this bill. And think the fact that there is a likelihood of a markup happening pretty soon on this bill I think would suggest that it is moving.
Thanks for that Jennifer. Jennifer, you had talked about -- this person wants some clarification on are there mechanisms at the federal and state court levels, you know, to address attorneys that file frivolous lawsuits?
Yes. And so what is the specific question? What types of mechanisms are available?
Sure. So there are a number of mechanisms. There is something called rule 11 which is a federal court rule that it allows for sanctions for lawyers or plaintiffs that file pleadings that are either frivolous or that are improper. And that is one mechanism that has been used. Also there are fee awards where a defendant can actually seek to get the attorneys' fees from a plaintiff if a plaintiff files a frivolous case. That has actually been used to award attorneys fees to businesses that have been sued in cases that have been found frivolous under Title III. There are federal courts and state courts have authority to use their own equitable power to impose sanctions on lawyers who file abusive litigation or litigation that is filed for the purposes of harassment and or is otherwise improper and that is a mechanism that has been used. There are federal courts that have sanctioned lawyers for filing improper litigation in this area and I walked through some of those before that courts have actually either, you know, imposed a sanction on the lawyer or on the plaintiff or have actually said things like that that lawyer has to in the future seek the leave of court, it is not automatically permitted to file a new Title III lawsuit because they have been abusive in the past and it is practice that they have to ask the court for permission so the court can take a look at it and see if it is part of a pattern. There have been a variety of things that courts have done and there is bar sanctions. The bar in every state, usually the disciplinary body, if lawyers are doing inappropriate things and often the courts will refer them to state bar or anybody can refer them to the state bar for disciplinary proceedings. So bars have also in some cases sanctioned lawyers for improper conduct in this area. So those are some of the mechanisms that exist already. There is a lot of different ones and courts and bars have done a lot of different things to impose sanctions in this area.
Great. Thanks for that explanation. Heather I go to this next topic. Someone had a question about some recent change in Florida law. And I think we -- there still seems to be confusion. I remember reading an article a couple of weeks ago about legislation that was passed in Arizona that addressed state law. But when I read the media coverage of it they referred to it as an ADA fix when in fact, we know the ADA is a federal law and these state statutes are separate and have different mechanisms. So if you could, if you are able to, if you could talk about some of the -- what's happened at the state level recently in Arizona and Florida or California. >>
Yes. I can -- this is Heather. I can talk in general about that. As mentioned there have been states who have state laws that address disability discrimination. They are separate from the federal Americans with Disabilities Act. And in some of those cases at the state level those laws allow for damages. Whereas the ADA federal statute does not. So there have been efforts and in some states you mentioned Florida, Arizona, California I believe Minnesota have efforts at the state level that have been changes that would impact their -- and get at the -- at this issue from na perspective. So I think certainly there are I think confusion between in some cases what's happening at the state level and happening at the federal level and what the crossover is between those two because I think people just like anything related to disability access, people assume it is ADA even though it may be another federal sift rights law, I think that that happens with confusion between the state and federal law as well. So if you are in a particular state I would encourage you to look at what's happening in your state to get more specifics about any legislation that's passed or proposed.
That's great. Thanks. Jennifer, if I could go back to you, a person wanted to know when you are talking about the fact that there are, you know -- there are no money damages available when someone files a private lawsuit under Title III of the ADA as it is currently constructed, this person was questioning what are the incentives for businesses to comply as the ADA currently looks. >>
That's a good question. It is harder for people to find lawyers to take on cases under Title III. Businesses still have a reason to gli is that they can get sued. So the difference I think between what the existing law is and what this bill would be with the regime would be if this were to pass is that under the existing law, people can enforce their rights right away. If you have an inaccessible doorway or some other part of your business that's inaccessible and it violates Title III, because it was -- essentially something that is cheap and easy to do and you haven't done it, then you have a reason or an incentive to bring yourself in to compliance because somebody might sue. So then you have got a -- you have got to go defentd your lawsuit and then you have got to go fix the problem. And you have probably got to hire a lawyer and it would be pretty over pretty quickly if you fix the problem right away. There is a reason for people to actually avoid that and to, you know, to fix the problem instead. If the bill would become law, then there is no longer I think that threat that somebody might sue you and somebody might try to enforce their rights pretty quickly. And so, you know, nothing needs to happen. There is no consequence any more for businesses in violation of Title III. There is no longer a consequence unless and until a person with a disability shows up and gets denied access or experiences the violation and then files the requisite notice. So it is only after somebody experiences discrimination, somebody is excluded or denied access, that there are any consequences that could occur. So it changes the way that the enforcement can happen. It changes the incentives in that way. The country would be a lot less accessible if there was no longer a reason for businesses to actually bring themselves in to compliance unless and until someone with a disability shows up at the door and essentially gets denied access and then goes and files the required notice.
Thanks for that answer, Jennifer. Marilyn a question for you. Someone wants to know two questions. One what is the best time to contact your representatives and then another person wanted to know are you limited to contacting only your representatives or can you contact other representatives in the house?
Thank you. The best time to contact representatives is now and all the way up until, you know, the various bodies look at this bill. We -- there has been heightened interest about this bill. Businesses are pressured numbers about it. The disability community is becomes more aware and becoming more active and I think that, you know, staffers of members of Congress, you know, are taking calls because they want to hear what people are thinking about the bill. Now there are members of Congress that only pay attention to, you know, letters from the zip codes of their constituents or, you know, put in your address and it is -- unless it is in your district, so certainly your own member. But, for example, a lot of the California groups, I live in California, there are some offices here that are looking at their whole state Delegation and I may talk to offices of members who, you know -- I'd myself as a Californian. And we hope members of Congress will listen to people from their state or, you know, in some cases from anywhere in the country. So it varies. But it never hurts to put as much pressure to make as much noise as possible if you alarmed about, you know, an issue and if you know that your own member opposes this bill, you can urge them to persuade others but you can contact other people in your state Delegation and you can start contacting your Senators, because the bill could move quickly through their house and go to the Senate. And so or you can contact your whole state Delegation. You can write op eds and letters to the editors. There are a number of things that you can do. And even they are a cosponsor, even if you your member has decided to cosponsor the bill that could be because they had not heard both sides of the story before they chose to cosponsor. And sometimes cosponsors will choose to remove their names. And/or even cosponsors in the end test their vote against the bill. It is perfectly legitimate to ask them to oppose a bill they are cosponsoring, I have talked to a number of offices that have never heard of the disability side of the story. The business community appears to have put more financial resources in to passing this bill than we have. But we have energy and vigor and hopefully a lot of people who care enough to act. So we encourage you to look -- start with your own member but don't feel like you have to be limited even though you know some members may not pay attention. Others will.
Thank you, Marilyn. Heather, clarification, we had a couple of people submit this same question if this proposed legislation would have access on the buildings, to the ABA. >>
This legislation only applies to Title III of the ADA which involves access to public accommodations. So it would not impact other access laws including, you know, Title III of the ADA or 504 of the Rehabilitation Act. So that would not have an impact.
Great. Thanks. And then someone asked a question for you Jennifer, but someone had asked about where they can find the list of the categories of places of public accommodation and that comes from the Title III regulations themselves in the 36.104 in the definitions section is where you can find the categories and examples of various places of public accommodation and that can be accessed at ADA.gov. The Department of Justice a ADA home page. You had talked about different resources out there and ADA.gov being one and the Justice Department 800 number. This questioner wants to know if there are any incentives available for businesses related to, you know, any tax incentives for businesses.
Sure and that's a great question. Heather may be able to speak to this in a little bit more detail than I can but there are a couple of different tax incentives. They are available to businesses that need to make any kind of modifications to comply with the ADA. And those tax incentives may be significant and Heather can add to what I have said to provide any more specificity. >>
Yes, this is Heather. There are some tax incentives that are available. The architectural transportation tax deduction issel -- all businesses are eligible for that Ann that's a maximum of $15,000 and also the small business tax credit which is for small businesses with a maximum of $5,000 and in some states there may be additional state tax incentives that might be available. And additional information about these particular incentives is available on ADAta.org.
All right. Great. Thanks for that Heather. Jennifer, another one for you regarding the application of this proposed legislation and let me read exactly what the questioner wrote. They wrote does this legislation affect higher education. Example if everything that occurs within higher education fall under Title II, question. Or are there certain aspects where Title III applies. For example, we have a clinic -- a clinic pharmacy, campus recreation, bowling alley, et cetera. .
Sure. Many higher education campuses are covered by Title III. Any higher school, so private schools would generally be covered under Title III of the ADA. Public schools, state universities, would be covered under Title II. But anything private would be covered under Title III and so those would be impacted by this law if there are architectural barriers at issue, that would be affected by this law. I will say that, you know, many cases Section 504 may also apply to a public -- rather to a private school. So there may be other rules as well. But certainly there would be a direct impact on higher education and lower education. Any private school would be covered by generally by Title III unless it falls under a religious exemption. Yes, it would be affected by this bill.
Great thanks for that clarification. We are getting closer to the bottom of the hour here. Marilyn, we have time for a couple more questions here. And this -- I'll read this question directly. This person says I don't understand the concern. How would HR 620 turn people with disabilities in to second class citizens?
Thank you Peter and to the questioner. Because it imposes added limitations on enforcing our rights. So I remember when the ADA was being debated in Congress. And there was concern about utilizing the same enforcement provisions as the Civil Rights Act of 1964 which affects so-called racial minorities, people of color, women and other groups and it was said well, wouldn't it be okay just to have these requirements but, you know, different enforcement mechanisms and, you know, the way we characterized it as, you know, well, your -- you know you are very good. But you are just saying to people with disabilities you are very good and you are very worthwhile and your rights matter but they don't matter quite as much as other people's rights and the community insisted on the same enforcement provisions. And that's the sense in which we don't rely on particular -- I mean if the ADA's requirements were onnorous it would be wub thing but given they are so carefully crafted to take the needs of businesses in to account, there is it nothing to fear from something enforcement requirements but the same as every other Civil Rights law. And the other sense of second class citizenship, is that if you don't have rights with remedies meaning a way to enforce these rights, then, you know, all your -- all your neighbors without disabilities don't even think twice about can they go in to a bank or can they go to a certain restaurant. Pe they have just go but people with disabilities may have to really figure, you know, does your -- does your bathroom comply and how is it configured and have someone go look at it first or, you know, or go first to see that they can be there for more than an hour and a half, you know, or, you know, why should you have to make a hundred more checks particularly get -- if again the requirements are reasonable. And the ADA really weighed, you know, what was fair to ask of covered entities, businesses and other (inaudible) covered by the law and it keanl came out with what's in the ADA and some say that it should be a lot stronger than it is. But we have been able to do quite a bit with it. And it is literally changed the face of America in terms of our architecture and transportation but we also know there are many public accommodations have not acquainted themselves with their obligations and people with disabilities are second class citizens until their rights are implemented.
Thanks. Opportunity for one last quick question. Jennifer, where can someone wants to know where they can get information about what members of the house serve on the judiciary committee?
Sure. There is a couple of ways you can find and the easiest way is to look at the judiciary committee's websites. One way to do is to put in to Google house judiciary committee and you will pull it up and if you are on the right website it should say judiciary.house.gov. And that will give you majority members and minority members. So you can look at it -- I think it is also on Wikipedia. So if you happen to pull up that page they will also give you what I believe is the accurate list of majority and minority members but the official sources is the obviously committee's website. But you can find that. Again it is judiciary.house.gov.
Thanks. One last question. Is there a place where one can go find on a yearly basis how many lawsuits are filed at the federal level under Title III of the ADA? >>
I am aware that there is -- there is some blogs that keep track of how many lawsuits are filed on a yearly basis. And an individual can also look in to the federal filing systems which is a bit more difficult to do but a quick search on the web would usually turn up some of these blogs that have this type of information.
That's great. Thank you for that. We are at the bottom of the hour and I think there was a great discussion of this legislation and looking at it from the both sides. I want to especially thank our presenters today, Heather, Jennifer and Marilyn. Not just for the 90 minutes or so, in doing the session this afternoon but all the time and effort that they put in to putting together this presentation. We truly truly appreciate your efforts for that. I want to thank all of you for participating today in today's session. You will -- we will have some update ed information in the coming weeks about the additional ADA audio conference sessions upcoming later in the next couple of months. And you can find that information by visiting www.ada-.org. So again want to thank all of you for joining us and we look forward to having you join us again in the future. Take care and good day everyone.