A law that was meant to break down barriers is increasingly being used by unscrupulous attorneys to threaten business owners over alleged minor violations of the Americans with Disabilities Act (ADA).
Arizona is ground zero for this “cash for compliance” phenomena that incentivizes the practice of suing local shopping centers, theaters, stores and restaurants and other small businesses alleging minor, easily-correctable ADA infractions such as those relating to parking lot striping and bathroom dispensers.
While the ADA has worked well for over a quarter century, a new administration in the White House and new session of Congress provides a great opportunity to improve the ADA so that it may continue to protect millions more people for another quarter century and beyond.
Leading an effort to restore the spirit of the ADA while deterring frivolous lawsuits, Senator Jeff Flake (R-AZ) has championed legislation to improve ADA enforcement and compliance as well as address an avalanche of spurious lawsuits that are burdening our legal system.
The ADA Education and Reform Act, which will need to be reintroduced this year, provides a “notice and cure” provision that would create a temporary pause in litigation for up to 120 days before a lawsuit can be filed, allowing business owners the opportunity to correct identified barriers to access.
Both Senator Flake’s bill and its counterpart introduced in the House of Representatives during the last Congress establish additional compliance safeguards, create incentives to remedy alleged violations and direct resources for training professionals to provide guidance and remediation for potential ADA violations.
Providing business owners with the opportunity to make their businesses accessible to all customers eliminates the false choice that they currently face to either go to court for a lengthy and costly legal fight or give in to the settlement demands of lawyers, paying out thousands of dollars.
Arizona’s Attorney General Mark Brnovich acted last year to consolidate almost 1,300 ongoing cases to determine which merit legal intervention in the judicial system. Unfortunately, this was a temporary fix that could have the side effect of sending more of these lawsuits across state lines. To get a sense of the dire state of affairs, approximately 1,850 lawsuits alleging violations have been filed against Arizona businesses since February of 2016.
The ADA, while not perfect, has stood the test of time. I stand with business owners as we work toward the collective goals of more accessibility and ensuring full compliance. Congress must act this year to improve ADA enforcement so resources are directed to the mission of the ADA rather than to trial lawyers.
Gordon Keig, principal for Pennant Development, LLC, and member of the International Council of Shopping Centers.
