Putting an end to the cash for the compliance racket
February 16, 2017
Landmark legislation that has led to legally protected access and accommodations for millions of Americans with disabilities is now being cynically manipulated by rogue attorneys in an attempt to line their own pockets.
Signed into law in 1990 by President George H.W. Bush and supported by both parties, the Americans with Disabilities Act broke down barriers for individuals with disabilities in a profound way. The accommodations we expect today – wheelchair ramps, bathroom grab bars, electronic door openers, and more – were once rarely seen, preventing too many Americans from participating fully in all aspects of society.
The changes brought about by the adoption of the ADA were significant. Under the law, building owners are required to alter their facility to be readily accessible to individuals with disabilities. If building owners don’t comply, the ADA allows for private individuals to sue and seek damages.
States across the country have adopted their own state-level disability access laws, including in Arizona, where the Arizonans with Disabilities Act (AzDA) became law in 1996, and is designed to prevent discrimination on the basis of disability in public places and commercial facilities.
But it’s the private right of action – the right to sue – that is being used by some, who purport to represent the interests of persons with disabilities, to instead shake down business owners with threats of expensive lawsuits, even if the supposed client came nowhere near the offending business.
Investigative reporter Dave Biscobing of Channel 15 in Phoenix examined this shady practice in a series last August, which profiled an outfit called Advocates for Individuals with Disabilities, or AID, that had been the instigator of over 1,700 lawsuits in 2016, many involving the same plaintiff. (Anderson Cooper looked at the same issue, which is spreading nationwide, for 60 Minutes last December.)
Arizona Attorney General Mark Brnovich has stepped in to put a stop to AID’s serial litigation scheme. The attorney general has successfully intervened as a defendant in the suits, which have been consolidated. Thanks to General Brnovich, no longer can AID bully small businesses into settling cases for thousands of dollars. Oral arguments are set for this Friday, as the attorney general seeks to have the cases dismissed.
But this is a business model that, however unseemly, some attorneys are more than happy to attempt to replicate.
So, states are starting to respond.
California last year passed legislation to allow businesses to make appropriate repairs to their premises before being subject to penalties. The law is an attempt to acknowledge that the motivation behind California’s disability access statute is about promoting compliance, not about springing surprise lawsuits on unsuspecting businesses who had no idea their facilities weren’t in compliance.
A similar commonsense fix is being proposed in Arizona by state Sen. John Kavanagh, who has introduced S.B. 1198.
Under the bill, businesses must be given a written notice of ADA violations before a civil suit can be filed. The bill provides a cure period of 60-90 days – depending on the size of the business and scope of the repair – to ensure that a reasonable amount of time is given for the business to reach compliance before being financially penalized.
This isn’t a free pass for business. If the business owner fails to comply, then the aggrieved party may file a lawsuit.
Sen. Kavanagh’s bill makes sense. It ensures compliance with the state’s disability access law, while protecting employers from disingenuous maneuvers by attorneys who are looking for nothing more than a payday.
The bill is supported by the American Tort Reform Association and the U.S. Chamber’s Institute for Legal reform, two respected national civil justice reform groups.
Our civil justice system suffers when lawsuits are brought based on an attorney’s pursuit of financial reward rather than the interests of an aggrieved client.
Sen. Kavanagh’s bill holds both businesses and plaintiffs’ lawyers accountable. It deserves our support.
Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry.