ADA Abuse Relief Bill may be coming - H.R.620 (previously H.R. 3765)

H.R. 620 (previously H.R. 3765) is an attempt to curb ADA lawsuit abuse and what has been called ADA drive-by lawsuits. HR 620 is an amendment to the Federal ADA law and would require litigants to first send notice to the business or property owner in order to allow the owner to fix the ADA non-compliant issue before a suit would be allowed. If fixed in a timely manner as provided below, a lawsuit would not be permitted.

This change will have a major effect on suits in most states. Some states, like California, have their own version of the ADA law, and until similar legislation is enacted at the state level, the change at the Federal level will have less of an effect. However, even in California, f the Federal legislation is enacted, this may force litigants to file in State court rather than Federal court if the owner fixes the ADA problem in a timely manner after notice. If enacted, it is unclear if these procedural changes will have an effect on the number of ADA filings in California other than changing the filings from Federal court to California state court.

What follows is the text of the latest version of prior HR 3765, which is essentially the same as the currently proposed HR 620.

H.R. 3765

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 3765

OFFERED BY Ml. llllll

Strike all after the enacting clause and insert the

following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ''ADA Education and

Reform Act of 2016''.

SEC. 2. COMPLIANCE THROUGH EDUCATION.

Based on existing funding, the Disability Rights Section of the Department of Justice shall, in consultation

with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and

efficient strategies for promoting access to public accommodations for persons with a disability (as defined in section 3 of the Americans with Disabilities Act (42 U.S.C. 12102)). Such program may include training for professionals such as Certified Access Specialists to provide a guidance of remediation for potential violations of the Americans with Disabilities Act.

SEC. 3. NOTICE AND CURE PERIOD.

Paragraph (1) of section 308(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12188(a)(1)) is

amended to read as follows:

(1) AVAILABILITY OF REMEDIES AND PROCEDURES.

(A) IN GENERAL.

Subject to subparagraph (B), the remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions.

(B) BARRIERS TO ACCESS TO EXISTING

PUBLIC ACCOMMODATIONS.

A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless

(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier;

and

(ii)(I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or (II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.

(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.

The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.''.

SEC. 4. EFFECTIVE DATE.

This Act and the amendments made by this Act take effect 30 days after the date of the enactment of this Act.

SEC. 5. MEDIATION FOR ADA ACTIONS RELATED TO ARCHITECTURAL BARRIERS.

The Judicial Conference of the United States shall, under rule 16 of the Federal Rules of Civil Procedure or any other applicable law, in consultation with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access for public accommodations. To the extent practical, the Federal Judicial Center should provide a public comment period on any such proposal. The goal of the model program shall be to promote access quickly and efficiently without the need for costly litigation. The model program should include an expedited method for determining the relevant facts related to such barriers to access and steps taken before the commencement of litigation to resolve any issues related to access.

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The Karlin Law Firm, located in California is the premier law firm assisting owners in the defense of ADA lawsuits.