NRA, NCCR support ADA lawsuit bill

Nation's Restaurant News, Feb 24, 2003 by Alan J. Liddle

WASHINGTON -- The National Restaurant Association and National Council of Chain Restaurants hope that the third time is the charm for legislation aimed at protecting businesses from "frivolous' or 'gratuitous lawsuits sparked by the Americans with Disabilities Act.

If House bill 728 becomes law, restaurateurs and other business owners would have to be notified of alleged violations of the 1 2-year-old ADA and given 90 days to correct infractions before a lawsuit could be filed against them.

Called the "ADA Notification Act," the bill by Rep. Mark Foley, R-Fla., has been endorsed by both the NRA and NCCR. The legislation is modeled after Foley's earlier and unsuccessful H.R. 3590 from 2000 and H.R. 914 from 2001.

"We applaud Rep. Foley for his continued efforts to correct the unintended consequences of this important law," NRA chief executive Steven C. Anderson said in a written statement. "We firmly believe that excessive litigation does not further the cause of [handicapped persons'] access."

The NRA "has long supported accommodation of individuals with disabilities, both as customers and employees," Anderson added. "Providing ease of access is only one of many ways that restaurateurs take care of their guests, yet many [restaurateurs] remain vulnerable to gratuitous lawsuits."

NCCR president Terrie Dort said, "Congressman Foley's legislation strikes the right balance between giving a business owner appropriate notice of possible ADA violation and the rights of the disabled to access places of public accommodation."

The NCCR represents 45 of the nation's largest restaurant chains, a constituency that the council said operates, franchises or licenses more than 120,000 restaurants.

According to the 2000 census, people with physical disabilities are the biggest minority group in the nation, a group that is more than twice as large as the black or Hispanic populations. Of the 284 million Americans counted in the census, about 77 million over the age of 5 were disabled physically.

Some advocacy groups for the disabled do not share the NRA and NCCR's opinions about the desirability of providing business owners with the means to stave off lawsuits by correcting alleged ADA infractions through formal notification by an aggrieved party. They contend that business owners have had more than a decade to come to grips with the law and that the 90-day rule would remove the teeth from ADA enforcement. What's more, they say, legislation such as H.R. 728 should not be adopted because it would "open the door" for other bills to "further weaken" the ADA.

Representatives of the National Council on Independent Living called Foley's earlier bill, H.R. 914, "a direct attack on the civil rights of 56 million Americans with disabilities" that "must be stopped."

The Internet site www. ADAWatch.org, representing a number of different advocacy groups, skewered Foley's approach in an online position paper, saying it "would discourage voluntary compliance of the ADA and allow offenders to delay accommodations without consequence."

The shift in the balance of power in Congress after last fall's midterm election, when Republicans regained control of the Senate and retained the majority of seats in the House, has resulted in the reintroduction of a number of stalled pro-business bills. However, some industry insiders maintain that the trial-lawyer lobby, not the Democratic leadership, is what has stopped the Foley bill in its tracks during earlier sessions and also sabotaged a companion bill in the Senate in 2001 by Sen. Daniel Inouye, D-Hawaii.

Details of Foley's latest bill, beyond a brief summary, were not available at presstime. But Foley's earlier measures also called for allowing courts to sanction attorneys who filed ADA lawsuits without providing notice and to prohibit attorneys' fees and expenses in cases where businesses were not first notified.

NCCR officials and other supporters of Foley's proposal and others like it have said that the bill would close a harmful loophole under Title III of the original ADA legislation. That loophole, they said, permits trial lawyers to threaten business owners with costly lawsuits unless the owner agrees to pay the plaintiff's legal fees, which allegedly are often inflated to thousands of dollars for very little work.

The term "drive-by lawsuit" was coined in recent years to describe alleged ADA-based nuisance lawsuits, such as one in Encinitas, Calif. In that case some 20 neighboring businesses along one street were sued for ADA infractions because handicapped-only parking signs had faded. Though the signs were repaired in a matter of minutes, the cases went to court and resulted in substantial legal costs to the business owners.

Legal costs to hospitality operators can be substantial even when juries side with them and against plaintiffs who press ADA-based cases.

In a high-profile jury trial in California in 2000, actor and hotel operator Clint Eastwood won a court verdict after arguing that the handicapped-access case against his Monterey County hotel exemplified a form of legal profiteering. Eastwood had agreed to correct the problem after the lawsuit alerted the hotel to the technical violation. Nonetheless, his successful defense cost him $300,000 in attorney fees, he said.