Skip to main content

tv   US Senate  CSPAN  May 19, 2016 6:00pm-8:01pm EDT

6:00 pm
color called just the beginning can and we are hosting a dinner. he was hosting a dinner with some people, and merrick garland was my dinner made. he sat right next to me. we had a wonderful conversation, got to know him then. and, of course, in later years i obviously followed his work on the court come into at your question directly, was especially impressed with the number of unanimous decisions that the author to which as you pointed out is an indication of a consensus builder. and consensusbuilding was at the very core of the meeting, the importance of brown v. board of education, a unanimous decision. chief justice demanded that it be unanimous and did everything possible to ensure that that would happen because he knew the import of that case and what would mean for the country. why is that also very significant to why we are here today?
6:01 pm
on monday, the supreme court issued the stupid opinion which we talked about -- forgive you for calling that a compromise decision. that's how i do it. just imagine for a moment if during this period of a 4-4 split on the court, brown v. board of education have come up. .. >> i can't help but think about
6:02 pm
that and in the context of other cases that are bound to have come up to the court during this period. senator leahy, i am glad that you pointed out that we have some civics students seated behind us here today. i hope they are learning something, but think of the lesson that where we are at this moment in connection with this nomination teaching them -- is teaching them. these are matters that should be of critical importance to all of us on both sides of the aisle. the future really is at stake. these kinds of decisions that were issued on monday have real consequences. in brown v. board of education, you had decisions in one part of the country that went one way, and in delaware in particular -- my former colleague on the third
6:03 pm
circuit, colin seitz, was the chancellor of delaware at that time and was the only judge affirmed by the united states supreme court in that case. but imagine if the court said, you know, we're going to punt on this and hope that you all will just work together and figure it out so that in one part of the country we have people continuing to pursue one set of policies and in another we have another. these matter. these matter. elections matter. the duly-elected president of the united stateses has nominated a highly -- united states has nominated a highly qualified person to a position of great importance. that matters. not the future president, this president. with almost a year left nominated merck garland to this -- merrick garland to this position. elections matter, decisions matter, and the supreme court, there's a wonderful piece in this morning's new york times
6:04 pm
about the marginalization of the supreme court as a result of this effort. and i just hope, and i join you in wishing that some of your colleagues across the aisle were here today to understand this and to hear this. there are real consequences affecting real people. some of these are matters of life and death. i don't know if you're familiar with the case of duane buck. duane buck is an inmate in texas on death row who was sentenced based on testimony that he posed a future danger pause he was black. because he was black. and that issue, whether one's race can be considered a future danger -- in texas you have to establish future dangerousness -- can be taken into account in determining eligibility for the death penalty is now before the united states supreme court on a cert petition.
6:05 pm
this is the fifth consecutive week that the court has not acted in conference, declining the petition or accepting the case. these are matters of -- he's sitting on death row wondering what's going to happen. and there are others. so it matters a great deal, senator, and thank you very much for the question. >> one of the members of our panel was, several of us are members of the bar of the supreme court, but he's also been the attorney general of his state. u.s. attorney senator blumenthal, please go ahead, sir. >> thank you very much, ranking member leahy. and thank you for having this hearing. i must say there is a lot of history and wisdom and insight and eloquence on this panel, and
6:06 pm
i'm deeply respectful of each of you for your public service to our nation. but if i may say so, you're no substitute for the real thing. >> we understand. >> i think you would agree. >> we agree. [laughter] >> and this hearing is no substitute for the real thing. we should be talking not about the damage to our justice system that results from this refusal to have a hearing and a vote, but about the qualifications of judge merrick garland with judge merrick garland in the place where you are sitting now. that's what the american people deserve. and i think, judge lewis, you made a very telling point that there is damage to the court and to our justice system from the politicization, dragging the court into the mire of partisan bickering which has infected
6:07 pm
this place much to the consternation of the american people. i was a haw clerk to justice harry blackman and then u.s. attorney and i've argued before the supreme court, and i have a deep respect and reverence for our judicial institutions. they should be above politics. and i am deeply saddened by the, in effect, polarization politically of views on the confirmation process and the refusal of our colleagues on the other side to do the right thing and to do their job and instead to obstruct this process. and i think the effect is not only 4-4 deadlocks, but to use the very apt phrasing that you cited from "the new york times"
6:08 pm
article this morning, the court is not so much deadlocked as diminished. because the effect is not only to fail to resolve splits in the circuit, but also to duck issues as they did in the ruling in zubic and also to fail to take cases and resolve them. and i spoke yesterday on the anniversary of brown v. board of education on that anniversary, but also on the effect of the court. and i have no doubt that brown v. board would never have been decided unanimously with a 4-4 court given the history, and we know more about the history now and what earl warren did in that court. the dynamics would have been totally different, and the dynamics now are totally different. the effect is to diminish the
6:09 pm
branch of government which in turn diminisheses our democracy. i think we owe it to the american people to move forward with a hearing and a vote on a man who has superb, in fact, impeccable credentials. i would like to ask you, mr. driver, and i have known judge garland for many years. i first met him when i was u.s. attorney decades ago. when he had a hearing and a case, and i think you mentioned it in the letter that you and other clerks wrote, did he come to the hearing and make a decision based on a predetermined point of view, or did he -- was his mind changed by what he heard, what he read, what he exchanged with you, his law clerks? >> yeah. i would describe judge garland's
6:10 pm
attitude and approach toward cases as being very much bottom-up rather than top-down. and by that i mean he does not have some sort of overarching, you know, judicial ideology that he is imposing on the facts of particular cases. instead, he is committed to reading the binding precedents and the briefs and the record and immersing himself in those materials in order to reach an appropriate outcome. and i think that that is a big part of the reason that he's been so successful at fostering consensus. in addition to his temperament of not sort of demonizing people, i never heard him utter a disparaging word of any of his colleagues on the d.c. circuit or any other of the lawyers that appeared before him. and so i think that it's not that he sort of had those thoughts and was muting himself.
6:11 pm
instead, there's a certain generosity of spirit that one sees with judge garland. and so the immersing himself in the materials allows him to identify points of commonality for himself and two other people who are on panel. and so people should not think that the relative lack of defense are indicative of someone who's trying to cut a deal or sacrifice his core judicial principles. that's not the case at all. nevertheless, he is able to identify points of overlap and commonality as an effort to have the court speak as a court rather than three individuals who are just sort of offering their own views. so i think that's why he's been so successful. >> and someone who believed most deeply in the rule of law, as he has said. >> yes, absolutely. >> thank you. thank you, mr. chairman. >> thank you very much. and we've talked about
6:12 pm
pennsylvania, and especially you have, judge lewis, and it brought back great memors of when i served there. -- memories of when i served there. i'm very proud to serve with senator casey. i've told him before that my father -- this is on the irish side of the family -- [laughter] my father was a huge, huge fan of senator casey's father when he was governor. senator casey, go ahead. >> senator leahy, i want to thank you for that introduction. and i'm referring to him as senator hay hi instead -- leahy instead of chairman leahy because this is a public meeting, not a hearing. it's so unusual that a member of the senate who's not a member of the judiciary committee was allowed to parachute in, take a seat where the name card initially was senator whitehouse -- >> he didn't ask unanimous consent, senator.
6:13 pm
[laughter] >> so, senator leahy, i want to thank you for giving me this opportunity, and i want to thank the panel, because if you didn't show up, i wouldn't have this opportunity that would give my mother and wife pride and would cause concern to my three brothers who are lawyers. but i -- and i won't have a long, a long question, just a brief statement, and i'll direct my question to judge lewis. i want to thank you for not just being here today and your testimony and your commentary, but also for your great service as a member of the third circuit. i wasn't here when you were confirmed, but i'm struck by how different the process that led to your confirmation was compared to this one we're talking about with regard to judge garland. what struck me about judge garland, the obvious attributes that you would hope every judge
6:14 pm
or justice would have, academic -- sterling academic credentials, the kind of character and experience you would want in a judge or a justice. in his case, a combination of being a lawyer, a prosecutor and a judge. just a remarkable range of experience. so all of that was impressive, obviously. and his demeanor and his character. what was interesting to me in meeting him for the first time and sitting in my office talking to him were two things that might be unusual for a judge, might be ever more unusual for a public official; humility and gratitude. the kind of humility that i think is consistent with what you said, judging lewis, in one of the statements you made. i think it was with regard to the confirmation of judge,
6:15 pm
then-judge alito about no one having a corner on the marketplace of ideas about what is right and that theme that you struck there. so that kind of humility that even with all of his academic training and experience, he doesn't have all the answers. but also the humility to listen to other people. and secondly, gratitude. i've never met or maybe rarely have met someone who is more grateful for the opportunity to serve as a prosecutor and to serve as a judge. talk us through how those attributes in addition to the others that i mentioned are critically important to have on the supreme court even though that word "supreme" would lead you to believe that there's no need of humility. >> well, thank you. thank you very much, senator casey. it's always good to see you, certainly good to see you here today. well, you have touched upon the
6:16 pm
two qualities that, for me, are the most important for anyone holding any public office, but in particular for a judge and perhaps even more so for a justice on the united states supreme court. i'll explain this by telling you about why i testified on behalf of justice alito in judge alito's nomination to the supreme court ten years ago. i had worked with him for a number of years on the third circuit. i found him to be intellectually honest, i found him to be a person of both humility and gratitude and all of the other
6:17 pm
qualities that i think go into making a good judge and a good justice. we disagreed on a lot. we disagreed many, many times in very key areas. of -- we did sometimes join one another in votes. some of them in matters that might surprise people; employment discrimination matters, very significant ones, and some other cases. he was willing to go along with or to join a majority where it may have appeared to be inconsistent with his jurisprudential approach which was one that was steeped in a more, far more conservative one than my own. but he was nominated by the president of the united states.
6:18 pm
and he clearly had all of the qualifications necessary the seven on -- to serve on the united states supreme court. an educational background, terrific record of service to his country in the solicitor general's office and as a u.s. attorney and then as a judge. and i did not believe and i do not believe that the mere fact that i disagreed with him idealogically should stand in the way of my standing up and saying, yes, of course he's qualified to be on the united states supreme court, in my view. i don't think that a monolithic court that reflects everything that i believe in is appropriate for the country. and i am very much in favor, and i think that it is one of the best features of democratic government that we have, a multitude of views that go into the judicial decision-making process and the legislative process. it's very important.
6:19 pm
and the capacity to reach across the aisle, or the bench, in order to do that and to do it well is critical. and i had observe offed that during my work with -- observed that during my work with then-judge areno. alito. and so i believe that judge garland reflects that in volumes. as i've mentioned before, the fact that he has been a part of so many cases that have resulted in unanimous decisions is an indication of his capacity to do exactly what i'm describing. it's so important, corporate decision making, if you will, group decision making at that level requires a capacity to be selfless and to instead look out for the interests of the parties and the litigants before one, before you and also the united states of america.
6:20 pm
this is important work that we do on behalf of the nation. thank you. >> judge, i want to thank you. i was late for the comments you and appreciate your ongoing public service. and this work you're doing today is public service. i want to thank senator leahy in this effort for focusing on the qualities, the attributes and the experience of judger garland. -- judge garland. not just being the chairman of the committee, but being committed to hungering and thirsting for justice which is one of the reasons he does such good work as our chairman. thanks very much. >> i thank you. and i thank you very much, and i know you and judge lewis have known each other for a long time.
6:21 pm
but i want to thank all four members of the panel. what we wanted to do on this -- obviously, not a hearing, obviously, it's not a substitute for a hearing with judge garland. but those of us who have known him for a long time, and i have, i've known him for a very long time, we know of his qualities. i get frustrated when i hear some of these lobbying groups throwing attacks against him. of course, he can't respond to those. he can't respond to them. if he had a hearing, of course, he could be asked the questions, and knowing judge garland as i do, he would have an answer to all of them and swat them down. so what you've done, the four of you, have spoken to the quality of a good person, a very, very good jurist, one that any of us who are in court whether we're a
6:22 pm
plaintiff or defendant, no matter which side we're on, we would feel comfortable having him as the jurist there. because, you know, you'd have a fair hearing. it was said it'd be very easy to say, oh, we've got to quote a former person, guilty accused here, the worst expression i've ever heard. but instead what you and judge garland did in oklahoma city was to cross every t and dot every i, as prosecutors should. and, judge lewis, i remember very well your testimony, and you were very honest and forthright then as you were here today. and, secretary slater, when you spoke of former secretary coleman, i think of all the times he's been in my office, always speaking on behalf of others and what we should do.
6:23 pm
never asking for anything for himself. but telling me about good people in both parties who should be considered. and, obviously, you know him that way. and, professor driver, i was fascinated by how you talked of the way judge garland would handle cases. it must have been a pretty exciting time to be a law clerk with him. and i think probably it was a great way to prepare for the chair you now have. so i thank you all very, very much. >> thank you. >> and i thank members -- >> thank you, sir. >> thank you. [inaudible conversations]
6:24 pm
[inaudible conversations] [inaudible conversations]
6:25 pm
[inaudible conversations]
6:26 pm
[inaudible conversations] [inaudible conversations]
6:27 pm
>> in about 30 minutes, republican presidential candidate donald trump holds a campaign rally at the national guard armory in lawrenceville, new jersey. governor chris christie is also expected to speak. our live coverage begins at 7 p.m. eastern on c-span. >> a hearing was held today on capitol hill to examine provisions in the americans with disabilities act, specifically those that apply to public accommodations such as retail stores, rental establishments or other facilities used by the general public. among those testifying were two u.s. representatives who are sponsoring separate bills aimed at allowing individuals and businesses time to comply with the law. this is an hour and a half. >> subcommittee on constitution and civil justice will come to order, is and without objection,
6:28 pm
the chair's authorized to declare recess of the committee at any time. welcome to you gentlemen. sorry for being a little late. we've called this hearing today to examine h.r. 3765, the ada education and reform act of 2015. and h.r. 241, the access act of 2015, which are two common sense proposals that require plaintiffs to provide defendants with written notice and an opportunity to correct an alleged ada violation voluntarily before they may file a lawsuit and force a business owner to incur legal costs. these bills, which only apply to cases involving public accommodations, would both improve public access for disabled individuals and eliminate thousands of predatory lawsuits and damage, that damage the reputation of the ada and its overall purpose.
6:29 pm
when the ada was signed into law by president bush in 1990, the goal was to provide the disabled with critical access to public facilities. and in large part, the ada has worked. it's been hailed as the most sweeping, nondiscrimination legislation since the civil rights act of 1964. unfortunately, enterprising plaintiffs and their lawyers have abused law by filing a flurry of ada lawsuits aimed at churning out billable hours and extracting money from small businesses rather than improving access for the kiss -- for the disabled as the ada intended. these predatory lawsuits are possible for two chief reasons. first, 100% compliance with the ada is very difficult to achieve. even though good faith efforts such as bringing or hiring an ada compliance expert, a business can still find themselves subject to a lawsuit
6:30 pm
for almost any minor or unintentional infraction. according to one ada compliance specialist, quote: i rarely, if ever, see circumstances or instances where there isn't an access violation somewhere. i can find something wrong anywhere. unquote. this makes compliance a challenge even for those with the very best of intentions. second, unlike title ii of the civil rights act, the ada does not currently require any notice before a lawsuit can be filed. this has led to thousands of lawsuits being filed for issues of relatively minor noncompliance such as a sign being the wrong color or having the wrong wording. abuse of the ada has been noted by federal judges in numerous cases throughout the country who have referred to the prolivelation of lawsuits as a, quote, cottage industry. these judges have recognized that the explosion of private ada litigation is primarily
6:31 pm
driven by the ada attorneys' fee provision. one federal court explained that, quote, the ability to profit from ada litigation has led some law firms to send disabled individuals to as many businesses as possible in order to have them aggressively seeking out all vailses of the ada -- all violations of the ada, unquote. then, rather than attempting to remedy them by notifying the businesses, lawsuits are filed. as settlement -- a settlement does not -- [inaudible] wills an incentive. as one federal judge observed, the result is the means for enforcing the ada attorneys' fees have become more important and desiecial than the end which is accessibility for disables individuals. but the ada was enacted to protect disabled individuals, not to support a litigation mill for entrepreneurial plaintiffs'
6:32 pm
attorneys hunting for ada violations just to file lawsuits. these bills examined today would help eliminate predatory ada lawsuits, increase compliance with the ada by giving businesses the opportunity to fix violations instead of dragging them into litigation and improve the reputation of the ada in the eyes of the public and, ultimately, improve access for disabled individuals. lawsuits would be reserved for those instances in which offenders are truly unwilling to make appropriate changes. this would also allow legitimate claims to move through the legal system faster. moreover, requiring notification before filing a lawsuit will benefit our economy. many small businesses have been forced to close because of accessibility lawsuits, and others have unnecessarily spent thousands of dollars litigating claims. small businesses are critical to america's economic recovery and should not be burdened by unnecessary litigation. it's an honor to have
6:33 pm
congressman ted poe, who introduced 3765, and congressman ken calvert who introduced h. r. 241. both here to testify about their respective bills, and i look forward to your testimony and the testimony of our other witnesses. and with that, i would recognize the ranking member of the subcommittee, mr. cohen, from tennessee for an opening statement. >> thank you, mr. chair. colleagues, it's good to have y'all here. this is not the first time there's been a hearing on this type of issue. since 2000 there have been, i think, three times that bills have been filed and hearings on pre-notification concerning ada. i have met previously with the folks from the shopping center world, the hotel world and the disability community and tried to get a more, better grasp on the issue and come up with sopping -- with some type of a reasonable solution. it's difficult to do it.
6:34 pm
the folks don't really want to change the kind of positions they've got. some of them are based in 1990, and they'll tell me this is what we did in 1990, and it's kind of like, well, it's fine. i wasn't there in 1990. my job is not to ratify whatever happened in 1990. but when we look at these cases, private parties are indispensable to having enforcement of any civil rights law, and this is a civil rights law. so we've got to have private attorney generals, and private attorney generals have been so effective in many areas at seeing that our laws are enforced. civil rights in particular and the ada. because of that, there was an agreement in 1990 said there wouldn't be damage to these cases under the ada, but attorneys' fees. so that was a compromise that was done. i understand that there's some folks that think that there are attorneys out this throwing out wide nets, and they don't really have a specific target. and i think that's wrong. i definitely think that's wrong.
6:35 pm
but i've suggested to them in coming up with some type of solution -- and part of that's in the bill, i think -- is that you have to have specificity in your complaint, and you could tighten that up to see they have not just a boilerplate complaint, but a specified, specific complaint. although i don't know why rule 11 hasn't worked against those types of complaints in the past. so be it, maybe that would help. if you get into the situation to where you -- obviously, the title of this hearing is the examining legislation to promote the effective -- i know it's effective -- enforcement of the ada's public accommodations provisions. so we have to presume in there that we want to enforce the ada's public accommodations provisions although most of what we've got here is not so much for enforcement as kind of limiting enforcement and limiting the way we -- so that's kind of a juxtaposition in my mind or contradiction in the
6:36 pm
title and what i see as the focus of the legislation. you can't -- i've never seen a criminal penalty that would be created to anybody who asserts a civil right, and this would be a case that you could have a civil penalty, criminal penalty, excuse me, if you don't give your notice provision first. that seems really harsh, and i think some of the folks have agreed that was a little harsh and maybe further than it should go. i think that would be anathema. but there can be abuses. i think there might be abuses. and if there are abuses, i want to clean them up. i did that with this committee in looking at trolls. i know they're not your pals, mr. poe, but -- they may be, but i don't think so -- marshall county, texas, deal. it's not necessarily a great world there. so i suggest if you want to amend the pre-suit notifications, that you ought to have something that also rewards the good guys that clean up the
6:37 pm
mess after 120 days. that's what you want to get, is you want the mirrors or the signs or the rails or whatever taken care of. and if the good guys do it, great. if they don't, you got bad actors or they just kind of lollly gag or don't do substantial, then i think you've got to have a stick. if you change this, you've got to have a stick to see that the bad guys get punished somehow. there's got to be something to those people not to just give them this notice provision and time to kind of maybe be dilatory, but punish them for not being good guys. one of my thoughts was give some kind of damages, some liquidated damages, equal to or multiple to what it requires to fix the area. or maybe there'd be some other kind of damages that we could come up with to punish the owners that aren't the good guys. you've got to have consequences for those people, otherwise
6:38 pm
they're just getting a benefit, and they're not being the folks that i know mr. poe and mr. calvert are interested in helping through this action. and the folks with the ada community, i mean, they want like i wallet the a -- i want the ada enforced. this is not about attorneys, this is about ada provisions. but the attorneys do bring the cases, and with the notice provision, they don't have not getting attorneys' fees, if they bring a problem to the attention of a business community and they clean it up and the other side gets nothing for it, it's unlikely there's going to be a continued interest in those people, attorneys, to follow through and help in giving the notice provisions, advising the clients and trying to cure problems with the ada. that's just the way the system works. people have got to have some skin in the game, and you're taking the skin in the game out. so that's going to hurt, i think, the enforcement here unless we come up with something on the back end that makes it a little bit sweeter.
6:39 pm
that's -- i've, i'm a lawyer, and i have a disability. i helped pass ada state statute in tennessee, and i'm interested in seeing this enforcement appropriately, prop properly, but i'm not interested in seeing businesses get these wide nets thrown and be subject for folks looking out for attorneys' fees than the disability community. i think that's a disservice both to the bar association, members of the bar and to people with disabilities. so i hope we can have a friewflt discussion. i know we will. and i hope we can come up with a solution. i think there's some good ideas here, but i don't think the solution's here, and i do think we need to look at some kind of a stick to make sure that the bad guys get slapped so the good guys can deal with the notice. with that, i yield back the balance of my time. and that's just the way it is. [laughter] >> i thank the gentleman, and i would now yield to the ranking member of the full committee, mr. conyers from michigan.
6:40 pm
>> thank you, chairman franks. and top of the morning to you and our distinguished witnesses and the guests that have joined us this morning. the three bills that are subject of today's hearings would institute a notice and cure requirement under title iii of the americans and disabilities act of 1990. specifically, these measures would prohibit a lawsuit from being commenced unless plaintiff first gave the business owner specific notice of an alleged violation an opportunity to fix or make substantial progress toward remedying such violation.
6:41 pm
let me begin by stating what i said previously when similar proposals were considered by our committee in the year 2000 and again in the year 2012. quote: i am adamantly opposed to any effort to weaken the ability of individuals to enforce their rights under title iii's public accommodations provisions. and here's why. first, the notice and cure requirement will generate numerous litigation traps for the unwary and, ultimately, dissuade many individuals from pursuing their legitimate claims. for example, two of these bills would require a complainant provide specific notice of the
6:42 pm
alleged violation before he or she may file suit. but they failed to define what constitutes "specific notice." nor do they define what is "substantial progress toward compliance." as a result, courts will have to struggle to determine what these inherently vague terms mean, thereby creating an open invitation for well financed business breasts -- business interests to engage in endless litigation possibly that would drain the typically limited resources of a plaintiff. in addition, these measures would undermine a key enforcement mechanism of the americans with disabilities act and other civil rights laws. the credible threat of a lawsuit
6:43 pm
is a powerful inducement to businesses to proactively take care to comply with the act's requirements. yet a pre-suit notification requirement would create a disincentive to engage in voluntary compliance as many businesses would simply wait until receiving a demand letter before complying with the law. and this requirement also would discourage attorneys from representing individuals with claims under title iii because attorney fees may only be recovered if litigation ensues. thus, an individual with a title iii claim would not be entitled to recover such fees if the extent of the attorney's representation was limited to drafting the demand letter.
6:44 pm
pre-suit notification would make it even more difficult for disabled persons with valid title iii claims to obtain legal representation to enforce compliance with the act. finally, title iii by its terms is already designed to make compliance relatively easy for businesses. and be so i -- and so i am pleased to join the hearing, and i yield back any time remaining. thank you, mr. chairman. >> and i thank the gentleman. and without objection, other members' opening statements will be made part of the record. before i introduce the witnesses, i would like to submit two statements for the record. the first is a letter from the national association of theater
6:45 pm
owners in support of h.r. 3765. the second is a coalition letter, also in support of h.r. 3765. without objection, these statement thes will be entered into the record. let me now introduce our witnesses. we have two very distinguished panelists today, and i'll begin by introducing the fist panel of witnesses -- the first panel of witnesses. our first witness is representative ted poe. mr. poe represents texas' second district and is a member of the judiciary and foreign affairs committee. glad to see you, sir. and our second witness is representative ken calvert. mr. calvert represents california's 42nd congressional district and is a member of the house appropriations committee, and i'm glad you're here. and so i would now recognize our first witness, congressman ted poe, and if you'll turn that microphone on -- i know you -- yes, sir. [laughter] >> thank you, mr. chairman. thank you for allowing me to be here, and i want to thank the
6:46 pm
ranking member and also i would like to thank congressman calvert for his work on this issue for a good number of years. as the chairman has pointed out, or has pointed out in the past, i'm a former judge, prosecutor and lawyer, been in the legal profession for almost 40 years. and this is a situation where this particular hearing that we're having deals with, i think, abuse of a good law. i believe strongly in the ada, and it needs to be always enforced. and the goal of the legislation is to make sure that when there is a violation anywhere across the fruited plain, that the violation gets fixed to that there is accommodation for the citizen to get boo that business. into that business. but the legislation hopes to prevent what is occurring that there are lawsuits being filed
6:47 pm
not to get accommodation for the citizen, but to get money so that people settle. and the alleged violation may or may not ever be addressed. and what happens is that lawyers are making a lot of money off of these what i think are frivolous lawsuits to the detriment of the person who is actually being prohibited from going in to some businesses. because the goal is not being reached to allow accommodation. what is happening is lawyers are filing lawsuits, businesses settle rather than go to court, and the lawyer gets we don't know how much of that money. so in the last ten years, these frivolous lawsuits have been filed under the public accommodation section of the ada. some of these lawsuits are, in my opinion, shakedowns for businesses. and they're using the ada as a basis to obtain quick
6:48 pm
settlements rather than go to court. for example, some of these law firms -- and there are specific law firms in different parts of the country that do this, they will file notice or give a letter stating that there is not a proper pool lift in a particular motel or hotel. and many of these, some of these hotels don't even have a pool, or these motels. but the businesses settle rather than go to court because of cost of litigation. and that is the motivation of these lawsuits. and we're talking about settlements of around $5,000 apiece. often the same individual individuals are organizations who are making many of these claims go from business to business. and it's a business model that's been working, especially in the last two years where 10,000 of these lawsuits have been filed n. florida a plaintiff named howard cohen -- no relationship to the ranking member -- has
6:49 pm
filed 529 of these lawsuits. california, martin vogel's filed 124. in pennsylvania, christopher milo has filed 21 of these lawsuits. and in some cases, like howard cohen, he sued a hotel in key west for an alleged violation of their pool despite the fact he was never a registered guest at the hotel. sounds somewhat suspicious. the ada expert who actually wrote part of the ada bill helped the hotel fight in this particular case. and he stated that colisten was, essentially -- cohen was essentially operating, quote: a continuing criminal enterprise that boils down to extortion. that does not get people into these motels. it does not accommodate these individuals. i -- it allows for, as he said, shakedowns for money to be collected by these, as i think
6:50 pm
they are, a, the a trolls. and some of the letters and notices are so nebulous that the person receiving the notice doesn't even know what the violation was. we have a realty company in houston manages many shopping malls, and in one particular shopping mall there's 40 parking places that are painted blue and ada compliant, but they're still sued because the violation doesn't allege -- or the letter doesn't allege what the specific violation is. so this bill will require basically three things; that they be put on notice so they can fixing the problem before there's a lawsuit. if that's the goal, to fix the problem, put the business on notice. if the business doesn't pond to this notice -- respond to this notice within 60 days, lawsuit commence. if the business doesn't fix the problem within 120 days, and i think that could be worked on
6:51 pm
how many days, file the lawsuit. that does not prohibit the citizen from filing and getting their day in court. but if we want to fix the problem, let's fix the problem. it also allows for arbitration if the sides want to arbitrate. it's not required under the law. it's voluntary, and it also requires that the justice department come up with some very -- working with the industry and the people in the ada community -- different models on how they can educate all businesses throughout the country on what the ada says and how they can comply with the law as it is written. so that is why that this legislation is, it's to put them on notice, fix problem, get it ada-compliant. it's not to really allow for these frivolous lawsuits, the money going to, i think, the attorneys rather than fixing the problem. and i'll yield back my time, and
6:52 pm
that's the way it is. [laughter] for the chairman. >> and i thank the gentleman. and i would now recognize our second witness, representative calvert. and, sir, if you make sure that microphone's on. >> thank you, mr. chairman, distinguished members of the subcommittee. i thank you for the opportunity to testify on h.r. 241, the access act. as you know, the ada has been mentioned and is undoubtedly one of the most important pieces of civil rights legislation that we've passed in this cup. we can all agree that providing all americans with access to public accommodations is an invaluable legislative objective. the purpose of ada is to insure access to disabled, to the public accommodations, provide appropriate remedial action to those who have suffered harm as a result of noncompliance. although there are times when litigation by harmed individuals is necessary, there's an increasing number of lawsuits brought under the ada that are based upon a desire to achieve
6:53 pm
financial settlements rather than achieve the appropriate modifications for access. these lawsuits filed by serial litigants often referred to as drive-by lawsuits place exorbitant legal fees on small business. often times business owners are even unaware of the specific nature of the allegations brought against them. in early 2011 lawsuits reached an all-time high throughout california. as a result, my good friend and colleague, former congressman dan lundgren, championed the issue and introduced the original access act in congress. i was pleased to take over the legislation for re-introduction beginning the 113th congress n. january 2015 i reintroduced h.r. 241, the access act. h.r. 241 is a cost-free, common sense piece of legislation thatt would alleviate the burden small businesses are facing. any person aggrieved by a
6:54 pm
violation of ada would provide the owner or operator with a written notice of operation specific enough to allow such owner or operator to identify the barrier to their access. within 60 days the owner/operator would be required to provide an outline of improvements, the own or/operator would have 120 days to make these improvements. failure to meet these conditions would allow the lawsuit to go forward. we must insure individuals with disabilities are awarded the same access and opportunities of those white house disabilities. as a former small business owner and restaurant owner, e personally have had to deal with these litigant, and frivolous lawsuits do not accomplish any goal. allowing small business owners to fix ada violations within 120 days rather than waiting for lengthy legal battles is a more thoughtful, timely and reasonable approach. while the ada is a national law,
6:55 pm
as i mentioned earlier, california's become ground zero for ada violation lawsuits. in fact, california's home to more federal disability lawsuits than the next four states combined. a 2014 report determined that since 2005 more than 10,000 federal ada lawsuits have been filed in five states with the highest disabled populations, 7,188 of which were filed in california. as of 214, according to the u.s. census bureau, 31 attorneys made up 56% of those federal disability lawsuits in california. those figures are the real-life toll it takes on small business mope owners -- small business owners. however, it is clear that it's not just a major problem in california. the introduction of similar legislation by the gentleman from texas, mr. poe, allows just that. his legislation authorizes a training/education component for
6:56 pm
affected community and certified access specialists which i certainly would welcome and embrace as an amendment to my legislation. this is also a bipartisan issue supported by states. i was pleased to the see that in california s.b.269, the text of which i would like to submit for the record as well as a related article, passed unanimously and was signed into law by governor jerry brown. on may 10, 2016, just a week ago. the legislation authored by my friend, a democrat, state senator richard roth, is similar to the access act in that it allows businesses to take immediate steps to become accessible by providing them with the 0 days from -- 120 days from receipt of a certified access specialist report to resolve any violations without being subject to litigation costs or statuary penalties. i worry that with california acting to curb these lawsuits, some of these serial litigants will try their trade in other states.
6:57 pm
maybe they'll move next door to arizona. without question, the access act would insure that the aka is used -- aka is used for its pru purpose, accommodations for all americans while releasing costly and up necessary lawsuits for small business openers. once again, i appreciate your time and stand ready to assist in any way possible and insure that this legislation moves forward. thank you. >> i thank the gentleman. in fact, i'd like to thank both representative poe and representative calvert for their time and expertise. grateful for your testimony, and i would now like to invite the members of our second panel of witnesses to come forward. [inaudible conversations]
6:58 pm
[inaudible conversations] >> want to welcome all of you. our first witness on this panel is lee ky.
6:59 pm
ms. ky operates and manages a doughnut shop owned by her mother. her family's business has been the summit of abusive ada -- the subject of abusive ada lawsuits. .. the witness is david weise. mr. reese is executive director, executive vice president and council of the er corporation. a company that owns and manages retail properties. each of the witnesses written statements will be entered into the record for its entirety. i would ask each witness to
7:00 pm
summarize his or her testimony in five minutes or less. to help you stay within the time there is a timing light in front of you. the light switches from green to yellow indicates you have one minute to conclude your testimony. when the light turns red it indicates your five minutes have expired. before i recognize them i will swear you in. please stand. >> for those of you who cannot stand, just -- do solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, so help you god. >> god. >> i do. >> let the record reflect that the witnesses answered in the affirmative. i now recognize our first witness, ms. t. turn the microphone on a plug close to. >> can you hear me? >> yes-man. >> hello. i live in california.
7:01 pm
i want to talk about how the american disabilities act as affecting businesses. i understand all businesses must be accessible to all customers. i have been have been disabled for all my life. i'm grateful for those who recognized the need for the disabled community when they signed it into law. the public buildings -- they should be wide enough and high enough for a wheelchair to fit. the eating area should not be designated just for disabled people. it should not save for wheelchair only. assessable domains allow people with disabilities become more independent self-assessed self-sufficient. i appreciate businesses who have that but it personally does not matter if the grab bar is at 37 inches or 32 inches. as long as it is there when i needed. all business owners have to
7:02 pm
recognize the need for all customers. for example, many businesses, many business owners are are not aware of changes or regulations related to 88. not all businesses are up to date, up to code with the ada guidelines. because due to the lack of information from our city, state, also federal and regarding the changes. my mother has two donut shops. she has received information from ada that is not within our area.
7:03 pm
that means inside the building it has obstacles, steps and the facilities to narrow. now that this facility is not up to code with the ada, therefore the particular places or businesses should be corrected with penalty. however, however, my mom stone and shop in the city was built in 2000 and did not have architectural barriers. i would know, i am there. all businesses should have 30 days to correct minor violations and 120 days to correct constructional. in my experience, they have never become entangled in my wheelchair. after ada remains remains the same and required business to remove all carpet for the convenience of disabled
7:04 pm
people than the 88 will be creating a hazard for the able-bodied person. we the disabled community should not be able to feel separated from the society. this will cause bitterness. i do not need assigned to inform me that i meet him disabled and where i should sit. the ada should concentrate on accessible curbs and ramps that do not ramp around the building and backdoor access points. generally when i i entered through the back door, i feel like business are embarrassed or ashamed to associate with me because of my physical limitations. this is understandable to a point. because there are few disabled individuals including lawyers that make it their personal mission in life to collect money from businesses that they have never been to. it seems the sample of lawyers being paid are only helping the disabled community that they're
7:05 pm
helping the able community. moreover, they are separate in the disabled community and able community. the able-bodied community to dislike americans with disability acts. this make make the rest of small business owners were trying to earn an honest living look bad. throughout my life people are generally very helpful. when i am out and about people offer their assistance whether i accept or decline it is up to me. i also have a voice if i need assistance. i can ask for help. i do. i do not want business owners to cringe when i see -- when they see me enter their establishment. i was downtown and had to user restaurant and i spotted a bar and restaurant and i asked if i could use the restroom. then they asked me if i am going to buy a drink. my response is no she doesn't drink but she needs to use the restroom. no, they did not me permission
7:06 pm
to use the restroom. since ada are going to sue small business they can also put no public restroom. i would like to see the regulation of federal laws be fair and not be taken of advantage of our misuse by people that know the law such as lawyers and certified access specialist persons. the elected official and state inspection to inform the public about all new laws. if this is necessary for the ada lust to continue many businesses will be forced to shut down and there'll be many empty buildings in our community because they do not have the money to pay. to me this is wrong and misusing the ada. i notice the government signed estes to 69 which limit statutory damages for certain
7:07 pm
minor technical violations of the ada. in my opinion, it's still a lawsuit that does not matter the amount is reduced. thank you. >> thank you. i now recognize our second witness, ms. shaw. shaw. is the microphone on? >> chairman frank. >> ms. shaw, you may may have to bring that closer to you. i'm not sure. >> can you hear me? >> chairman frank and ranking members of the cub subcommittee thank you for letting me testify today. it's an honor to testify. my name is millie shaw and i am a second generation hotel your and attorney. my parents migrated from india and the 191980s about their first hotel in georgia.
7:08 pm
i spent the first eight years of my life on the third floor of days inches a place i called home. 30 years later my family owned several hotels that employ nearly 400 people. i personally own two hotels in atlanta georgia that amount 250 guest rooms and have over 20 employees. i'm here wrapping setting the asian hotel owners association. then over 40% of all hotels in the united states. recently, small businesses have come under attack by unscrupulous attorneys and plaintiffs can to make a quick buck. to advance their goals these bad actors mini plate one of of the most important civil rights laws in our country. the americans with disabilities act. i was was recently sued for allegations and violations of the ada at my hotel in atlanta. i was surprised to think that a guest at my hotel was denied
7:09 pm
service. i contacted the general manager to learn that the plaintiff had never stayed at our hotel nor was there any evidence that he or his attorney had visited the property. the claims and complaint were extremely vague and general. among several broad issues he stated a very real to provide assessable entry into our hotel pool. my swimming pool, and my hotel has been closed since the day i purchased it. it. it is empty and covered with a tarp. was i being sued for failing to provide entry into a part of my hotel that was close to the obligor #i research and they had sued nearly 100 businesses in each suit is a most identical. in fact, the same plaintiff, the same attorney have sued my father with the same complaint as one of his hotels. it is clear that this point it has no desire to stay at the properties and the attorneys are using him as a proxy. i now have two options, i can either fight the suit, subject my business,
7:10 pm
plays, families, two months of interest in and litigations and pay thousands of dollars in defense of peace or i can settle with the plaintiff and pay his attorney thousands of dollars in which the attorney will likely be the only one the financial gain. we cannot afford to pay out settlement after settlement and defend against meritless suit aimed at preying on our fears. we are targeted because so many are minorities. settling would imply that i am i am guilty of violating the civil rights law. it would send a signal to my customers that my hotel is substandard and i do not care for my guests. and ever's decision decision could impact my ability to attract new customers and to finance additional properties and grow my business. it is a no-win solution. we need to find a solution that discourages attorneys for abusing the ada from dishonest purposes. hr 365 the reform act is a vehicle that balances the important sections confirmed by the ada with affording small business owners the opportunity to address any issues that may exist. the bill requires a detailed description of a potential problem, a requirement to
7:11 pm
provide notice, up. to the owner to address concerns. it will also provide a collaborative solution for improved assessable it. mr. chairman and members of the committee, thank you for the opportunity to testify before you today. i appreciate you listening to how an unscrupulous attorney has targeted me and several others in an effort to extort money in the guise of promoting accessibility under the ada. we are hotel hotel years, we are in the business of hospitality, the crux of our industry is to provide a welcoming environment for all of our guests. i i ask you to consider my story when evaluating hr 376 five. please
7:12 pm
help protect small business owners like myself who simply want to run our business free from the fear that the next envelope we open might be a lawsuit that closes the door to our hotels. thank you. >> thank you thank you ms. shaw. i now recognize our third witness, is the microphone close to you and on? >> can you hear me? >> yes, yes, sir. >> mr. chairman and ranking members and members of the subcommittee, my name is kelly, i'm executive i'm executive director of the national council and independent living. nickel is the oldest cross disability national grassroots run by them for people with disabilities. we go by nickel. it includes people's disability center for independent living, statewide independent living councils and other disability rights organizations. nickel advances the rights of people with disabilities and we have vision a world in which people with disabilities are valued equally and participate fully. centers for independent living address discrimination and barriers that exist in society
7:13 pm
through direct advocacy. these barriers are sometimes hard architectural but more often reflect attitudes and principles that have been reinforced for generations. they have deterred people with disabilities from working, leading being many in poverty and unjustly detained in institutions. as my own life experience has proven, with increased opportunities individuals with disabilities can claim their civil rights and participate in their communities in the same way people without disabilities do. i broke minor in a diving accident on july 26, 1970. six, 1970. i've used a wheelchair ever since. coincidentally the americans with disabilities act was signed into law on july 26, 1990. that was by president george hw bush. exactly 20 years to the day after i got my disability.
7:14 pm
therefore, i had 20 years of experience living with a disability prior to the americans with disabilities act and now i have 26 years of experience living with a disability post ada. fortunately the ada has literally change the face of the globe. although i am honored to be here, i'm here to testify in opposition of the so-called ada notification bills. as congressman, the original ada and the 2008 amendments which were passed and signed into law passed because people with disabilities, bipartisan lawmakers and businesses worked together. the various efforts to make it harder to bring a title pre-lawsuit lawsuit have never followed the same process. and never enjoyed support with people from disabilities or organizations that support them or organization that represent them. people with disabilities do not want more lawsuits, we want more sensibility. adding notification requirement will not make the multiple lawsuit phenomena go away.
7:15 pm
simple he sends the message to business owners that they do not have to worry about complying with the ada until they get a letter. in most parts of this country it is very difficult to find a lawyer who is interested in bringing in ada compliant against the place of public accommodation because they cannot collect damages. when ada was in and acted as a compromise between the disability and business community, the disability community gave up the ability to obtain damages under title iii of the ada by allowing injunctive relief and attorney fees. unfortunately there are businesses and companies who have yet to comply with those important civil rights law even after 26 years. the problem here that these bills are trying to address have little to do with anything with the ada. title iii again does not provide for damages. settlements are court orders can only involve attorney fees.
7:16 pm
in states where some of the witnesses are from, though state statues like california which has been mentioned, allow, allow the people to get damages, that is why california changed its law. damages are not allowed in the ada, there's, there is no need to change the americans with disabilities act. there's lots of information out there, there's lots of technical assistance people can get with how to comply with the law, there is even a phone line you can call and get information and a website. there is less a free technical assistance to businesses who actually want to comply with the law. the ada does not require businesses to do anything that would be considered undue burden. that that means it is not readily achievable or it can be accomplished with out much difficulty or expense. i just want to say, some of the stuff, i'm not going to go through the rest of my written testimony, but some some of this stuff has been talked about building stuff and people to
7:17 pm
come into compliance. the state that i come from, idaho, we change the building code in the states when people do get a building permit their building is going to be built according to the americans with disabilities act. the act gives people ranges that they have to put stuff into like for instance, ms. keegan fit under this table, i can't that's why the act allows for ranges instead of exact numbers that have to be met. so, with that i know my time is running out but just in closing i would like to recognize the wife of mr. justin darth, he was known as the father the ada in the building. with building. with that mr. chairman, thank you very much. >> thank you. and welcome. will now recognize now recognize our fourth and final witness, mr. weiss.
7:18 pm
sir is that microphone on and close? >> yes, can you hear me? >> yes. >> good morning mr. chairman, ranking member cohen, and members of the subcommittee. my name is david weiss, i'm executive vice president and general counsel of ddr corporation. i've been a practice from us. i've been a practice for almost 30 years in general counsel since 2003. ddr is a new york stock exchange traded real estate investment trust, we own over the 350 properties around the country, and puerto rico and have over 113,000,000 square feet. our tenants hundred 13 million square feet. our tenants are some of the most recognizable national, regional, and local retailers. i'm here i'm here to testify on behalf of the international council of shopping centers, or ic sc. with over 70,000 members in over 100 countries they represent a wide a wide variety of owners, managers, and other professionals related to real estate. first first and foremost, let me say that the ic sc vigorously supports both the
7:19 pm
letter and the intent of the ada. we recognize and applaud the positive impact the ada has had on our society. we also support hr 3765 introduced by congressman company and cosponsored by commerce men peterson. frankly, think the legislation we're talking about is misunderstood. there is quite a bit of agreement related to the legislation. as mr. buckland noted, people with disabilities do not want more lawsuits, they want they want more accessibility. friendly, we cannot agree more. we all share the goal of more accessibility. we want full compliance, we want it faster, with less cost, and we want more resources, not less devoted to improving accessibility. as an industry our interests are aligned with the goals of the ada. first of all and foremost, it is it is the right thing to do. many of us have had experience a
7:20 pm
challenge by family and friends were disabled. second, it is in our economic best interest to do so. there is a fundamental misunderstanding or misconception that businesses do not support her want to comply with the ada. let me be very clear, more people visiting our shopping centers and properties is a good thing. we work with our tenants exhaustively to find ways to encourage more, not less people to come to our properties and we spend millions of dollars each year to accomplice this. let me be clear on an area where there's also an agreement. that relates to the bad apples. those persons who want the ada, they deserve the full weight of enforcement. if they choose to ignore compliance in a lawsuit or threat of attorney fees is the only way to force compliance , then so be it. but on the other hand, if a simple notice is the fastest and cheapest way to solve many
7:21 pm
unintended and often minor areas of noncompliance, why would we not encourage that? unfortunately, not everyone agrees with mr. buckland. lawsuits by a small group of lawyers have skyrocketed. 63% increase from 21,322,014. unfortunately there are some whose interests are not aligned with the ada. these attorneys take a different approach, they filed first, ask questions later, they sue, settle, and move on. their interest is not on. their interest is not in improving accessibility but rather owning attorney fees. many never visit the property, cannot tell you what violations may be there, never bother to confirm whether any alleged violations have been result. so why do we support this legislation? because it gives the good apples a 60 day window
7:22 pm
to respond to claims without an immediate lawsuit. it gives 120 days for 20 days for the opportunity to cure any potential violations. i think we can agree that this is the fastest, most most efficient, most cost-effective way to achieve compliance. secondly, let us not forget that it also enhances education and training, eating creases dispute resolution to speed up enforcement. let's be clear about what this legislation does not do. it does not stop the right to sue for noncompliance. it does not limit the ability to recover attorney's fee. it does not change the department of justice enforcement rights. it does not change state laws. what it will do is encourage compliance and stop the unfortunate abusive tactics of a few. with that, i think you for this opportunity to testify today and i look for to answering any questions you may have. >> thank you. thank you all for your testimony. will now proceed under the five-minute role with questions.
7:23 pm
i will begin by recognizing myself or five minutes. the bill requires plaintiff to give a business owner notice of an alleged ada violation and the opportunity to fix that violation before a lawsuit may be filed. as a business owner, someone disabled, do, do you believe it is fair to the disabled to require notice and an opportunity to fix violation before a lawsuit can be filed? >> actually it is fair because there's so many new updates in the law that all of you have. for example for my mom shot there are seven items unnecessarily, there is a sticker note for the exit side, incorrect symbol of the restroom, the doorknobs, that is
7:24 pm
simple. i i was not aware of the new regulation. so if you are making changes, let us know. if the community, if the citizen knows, this will not happen. i would like to say something. i i do not think your building is accessible. i went to the women's restroom, it is not accessible. you guys create and make the law and your building is not accessible. so how do you expect a normal citizen to follow your rules if you are not doing it yourself? >> thank you. critics of legislative efforts allow for a cure period, prior to commencing a lawsuit under title iii of the ada have argued
7:25 pm
that the property owners have a legal operant obligation to make sure that it's able accessible to the disabled. it would create a further incentives for property owners not to comply until their sue. how would you respond to that criticism? >> thank you mr. chairman. i would respond to the critics by saying, the fact they're having an issue with grace. to begin with with shows and implies that there are not here to apply accessibility. all of us in the room support the ada and the americans with disabilities. we promoted think it is great for america. in fact, we want to fix issues because ultimately that attracts customers to our business away want to grow our business. we are automatically incentivized. a notice and cure provision would help us fix any areas of concern and promote accessibility versus just the and promote accessibility versus just the attorneys filing
7:26 pm
lawsuits immediately to get attorney fees. >> thank you. mr. weiss, has has there been an increase under title iii and if so can you provide the committee with the background on that increase. >> i would be happy to. yes, the number of cases has grown dramatically over the last few years. frankly that is the driving name for this legislation. this is both a growing and expanding problem and actually it just continues to grow. as i mentioned in my opening remarks, there is but a 65% increase from 2013 - 2014, and the 2014, and the numbers continue to grow and grow. in particular there are certain states where these are growing the fastest, california, florida, new york, texas, arizona, those combined have the largest number of suits filed over 80% of them filed nationwide.
7:27 pm
california had approximately 40% of the lawsuits but only about 12% of the disabled population there. this is an ongoing and continuing problem. >> thank use, sir. i will now recognize mr. colin for five minutes. >> thank you, sir. is the fact that california has their state law and i think it heard that includes damages could that not include that why there's so many cases in california? >> no. i don't think so. obviously, ada has been in effect for 25 years. i think we would all agree it has had a dramatic impact across the country. so much so that it is just a part of the way of doing business. in in our industry it becomes second nature. we are updated our properties and insured complot compliance.
7:28 pm
>> why do you think california is particularly litigious? >> i can't tell you why some states over others. i can tell you that it is going nationwide. >> specifically event in texas, arizona, california and florida. there has got to be, are those the states you mentioned? >> that's where they're the most cases, but there's cases across. >> but there has to be a reason why those were more than the other 46. you don't have a thought. mr. thought. mr. buckland you have a thought? >> i do, those are the states that allow damages. >> all for those states allow damages? >> yes. >> how many other allow damages. >> there's ten total. >> there's ten total and these are for, that seems like what
7:29 pm
they have in common. that is not a national problem, seems like, you get that don't you? you grasp the fact that those four states, are four of ten and that might be the unique factor that causes the lawsuits there and not something with the ada in general question of. >> sure, but it's a problem across the united states. my property is in georgia to on the same attorney in the same plaintiff have filed the same lawsuit 100 times. >> in georgia? a georgia lawyer. >> correct. yes. >> you heard what i was sent to my opening remarks about the possibility of having some type of damages for the folks that don't compliance there was a notice provision. would you you agree there needs to be a stick to punish, harshly with some sections the folks that do not comply within the 120 day. >> yes, the whole idea is that
7:30 pm
you would be able to file the lawsuit. >> but that is all already available. shouldn't there be something extra? >> such as what? >> sanctions, damages, liquidated damages. >> exactly. you can up all that and impose sanctions, but remember at the same time we are trying to run our business. we are doing the best we can. >> you're a good guy. i'm talk about the bag i. >> of course, the bad guys need sanctions. >> mr. weiss do you agree that that would be something that would make your proposal better? >> will frankly, let me me start on this damages issue which erased before. first of all, we are not talking about making changes under fundamental changes to the ada. were ada. were talking about legislation which is narrow and focused, a particular abuse for a mechanism. secondly a measure damages will reduce the problem. in fact it may well encouragement. more damages means more lawsuits, more lawsuits lawsuits
7:31 pm
means more attorney fees, more time and resources -- >> but the damages are for the people who didn't comply with the program. your program does have a lot of beneficial purposes, yours, ted's or whoever, but i can see the benefit of getting compliant. for the folks that do not comply, the damage is not going to be a problem for the good guys, is going to be for the bad guys. bad guys always have to be punished. >> i think your underlying assumption is that this is only a damages issue. take florida for instance,. >> know i'm not saying it's only a damages issue, it probably is because of where the litigation is quoted but what i'm talking about damages as a way to have another lever out there to make people comply. all you have is the notice. what you you make is harder to bring those lawsuit and this incentivizes lawyers to be involved in the process which will probably result in less notice of actual problems. if you going to do that do
7:32 pm
something you don't want to over kill that help the good guy but not the bad guy. >> with all due respect, i do not think this inhibits the enforcement of the ada. i think it actually helps enforcement. here's why -- >> mr. buckland, do you think it inhibits people. >> absently, there is no other still writes statue that requires notice to fix the problem before you file suit. no other but your want to put it in this one. i'll give you a few examples, like like i was in virginia beach, there's a timeshare down there and if we set through, i'm sure a lot of you have set through if you sit through a presentation they give you some reward so that the reward was to be about to go on this will watching tour. so we me and my wife and sunsets
7:33 pm
are the presentation, they gave us our will watching tickets and, by the way none of the timeshares, could not cannot have purchase any of the timeshares because they are all inaccessible, not a single timeshare didn't have a step in front of it. they are all inaccessible. so then so then we go to the will watching tour and they tell me they do not take people on wheelchairs on the tours. so i talked to the guy who took the tickets and said you're aware of the americans with disabilities act, and he said yes, that doesn't apply to us. and i said where's the manager, can i i speak to the manager. i'm the manager. and you still think it applies to? he said no. so when i got back home i talked to the department of justice and we went into where you work it out between you, we did that and
7:34 pm
they with very little expense, built a ramp to the boat and now they take people with disabilities other will tours. another one that just happened very recently is a business association in washington d.c. that i went to come i cannot get in, the front entrance is not accept accessible. i cannot independently enter the building either. i told them that. i gave them resources to get information on what the fixes were, check back within about two and a half months later to see if they have made any progress on making their building accessible, i got no response. so i waited another two weeks and send them another e-mail asking if they had made any progress. no response. i did that three times with no response. that i made a phone call, they were not answer left a message. no response to my phone call. frankly, that is most of the
7:35 pm
responses that you get from when you notify people there is a problem, you do not get any return response. that is what is happened to me over and over. >> thank you sir, i appreciated my time is up. >> i now recognize the gentleman from iowa. >> thank you. and thank you for your testimony today. i am just thinking about how the americans with disability act in a way change my life. i want to put this narrative into the record. i happen to to have been the only public building in the community that was wheelchair accessible right after the passage of the ada. so, they came and asked me would you be the host of the republican caucus in your community. i said sure, i'm home happy to
7:36 pm
open on my doors and help people out. i became chairman of that caucus in your i am in congress. i just look that in is, i don't know how many different implications are, i'm sure it has affected your life more than mine. it is ironic that at that meeting had not taken place who knows what i had been doing today. i wanted to ask you and mr. buckland, i'll ask if you can be brief in your analysis of this. you you lift your 20 years prior to the ada in a wheelchair and 26 afterwards. you probably did not see the immediate results of that because we had a lot of new construction that took place and refurbishing that took place. i don't have any doubt it has changed accessibility and you've seen it incrementally. the question back then in 1990 was, do we require compliance with the ada only a new construction were also for existing buildings and facilities. i recall going in and doing curb cuts in making wheelchair accessible and i'm wondering why did we think that
7:37 pm
when we built the sidewalk in the first place. it was a huge oversight on the part of our society not to see how simple and cheap that part of the ada could have been. what would it be like today do you think you the ada had been written in such way that new construction complied but old construction was voluntary. what kind of progress to think we would've made in the last 26 years? >> mr. chairman, very little. if you walk around this town, most of this is old construction. if we had not applied the ada to existing structures nothing here , not nothing but a lot of the buildings here would not be required to comply. >> and these buildings especially if some of the oldest buildings here. in my neighborhood it would be different for different reasons. we have a lot of new sidewalks and a lot of new curb cuts would've been done.
7:38 pm
i want to ask you your perspective and i appreciate it. i i would like to turn to michelle, you mention there are essentially a copy and paste 100 lawsuits with single lawyer and those lawyers in many cases either you or miss key with a lawyer had not been in the facility. i'd ask you to view, first to ms. shaw. what did the list of plaintiffs look like when you have a lawyer with 100 suits that are copy and pasted, what is the list of the plaintiffs look like on each of the suits? >> in my case it is one plaintiff. the attorney is using one plaintiff to fish out other properties in the area and slap the same lawsuit on them. >> have you looked at the plaintiffs and those other lawsuits that were filed by the same attorney? could it be the same plaintiff in some of those
7:39 pm
are all of those. >> yes. in this case case it is the same. i mention my father received the same lawsuit, same number of pages, same attorney on his property. >> there are 98 others out there what's the likelihood that same plaintiff has also been utilized by the same attorney and a number of other cases in addition to you and your father. >> there is a likelihood that there is the same plaintiff and attorney. they're all other plaintiffs and attorneys. it's an ongoing ongoing case. you have one plaintiff is suing 100 properties using the same attorney in that same attorney may want to settle 100 properties and you average 5000 dollars, that's a lot of money. >> i'm just trying to get that concept of how this works from the attorney's office. an attorney that is hotel chasing attorney, and i have a potential plaintiff, i will contact him of the two of us will go together. now we will file potentially 100 lawsuits and you be the plaintiff, i will be the attorney and we will collect the money on the expense of the businesses who never had a chance to know that they're out of compliance with the ada.
7:40 pm
so, i look at that in these plaintiffs then, what's the likelihood that the plaintiff hadn't never been in the building for the suit was filed? >> i think each various. in my case i look back one year to check the reservation of her first name and last name never mash. there's no no record of that person ever staying at our hotel. >> miss key? would you concur with the testimony of ms. shaw in your expense? >> yes. on that particular that particular day the individual sued three locations in our city. same person. and he does not live in the city. i came back from doing my errands and i got a package and i asked everybody, who is this person? no no one knew who he was. i even asked a medical facility that provides wheelchairs just to make sure if he bought
7:41 pm
anything from them, they don't know who he is. recently they did an investigation on this individual, he is an able body, he said he said in the wheelchair, he go to places and he use his wheelchair to get what he does and he lifts his wheelchair back in his truck. >> would you say that is fraud? >> that is fraud. that is why we're here we need to stop this fraud. we need to stop this ridiculous, using, using ada to get what you want. they say that this facility he contact three time and no response, please, go sue them. whatever needs to be done, yes. but give us a chance. like us, myself or ms. shaw, that we don't have any barriers in our facility, no barriers, just because we don't have the
7:42 pm
information that you folks changes, the lawyer has no right. it was not a barrier. if it was please, come after us. >> thank you. i yield the back. >> i now recognize the ranking member, mr. conyers for five minutes. >> figure chairman. i think the witnesses. could i begin by asking unanimous consent to enter into the record 14 letters from organizations that have a variety of objections to the measure that we are examining today. the consortium of citizens with disabilities, paralyzed veterans of america, the national, the leadership council on civil and human rights, and others.
7:43 pm
could i ask unanimous consent, they have, they take strong exception to this measure and i asked that these be included in the record. >> without objection. >> thank you mr. chairman. i wanted to just ask mr. buckland, if mr. weiss' testimony raised any objections in terms of your experience as someone that is disabled? >> mr. chairman, the whole issue around the written notice and you have to wait a certain time for it to cure, all that stuff like i said my my testimony, i think that will incentivize
7:44 pm
businesses to not do anything until they get a letter. so i i take exception to that. i also think just naming the number of lawsuits doesn't mean it's a bad link. if those businesses were out of compliance, then why is that a problem that they got sued for breaking the law? i don't quite understand that. so there is there is no mention about whether they were valid complaints, just numbers. so i am not sure that results in being a bad thing. >> would it be helpful if the committee what the results of those lawsuits were? >> yes, i also think that the department of justice could provide this committee was some information about how many complaints they have received, what the complaints were about, how the complaints were resolved, that kind of stuff. >> mr. chairman, i am hoping
7:45 pm
that we might be able to follow up with both my suggestion and mr. buckland's in terms of getting a little bit more detail some of these cases. now, mr. buckland we have four witnesses here this morning, you are the only one that is opposed to this measure. i wanted to ask you, what does the pre-suit notice vacation mean for the private enforcement of the ada and what would happen if enforcement is left only to the attorney general if private lawyers stop bringing cases? >> i think you stated the obvious. what will happen if our ability
7:46 pm
to post to is repeated then we have less enforcement. it is difficult to find attorneys that will take cases, except for those states that allow damages. i think this is more of a state legislation issued then it is with the american of disabilities. >> i do too. proponents of pre-suit notification argue that it is reasonable to give businesses the opportunity to cure a violation before a lawsuit commences. how might such a notification scheme affect voluntary compliance? >> again, it would impede our ability to have that waiting
7:47 pm
period, it would diss incentivize attorneys. but i want to ask you the opposite question, why why do they need to be notified? the making of disabilities act is out there and there is information on how you comply, there is ten ada centers, one in each area of the country. they have information on what it requires to apply the locomotor business and talk to you about what you need to do. so they should be proactive and they know the law is there, they should get the technical assistance it come into compliance. >> i think that is a very good response. you have answered all of my questions very appropriately. mr. chairman i yield back the balance of my time. >> i thank you. and i'll recognize the gentleman from florida, mr. mr. deutsch for five minutes. >> thank you mr. chairman.
7:48 pm
thank you for holding this hearing. the americans with disabilities act to fundamentally change our society for the better, both literally and figuratively it open the doors a public life that have been close for too long. i believe that any efforts we undertake to address abuses under the current law have to protect the progress that has been made and we have to continue to ensure our society is open to everyone. the goal that we all share his widespread coupons, poor compliance of the ada. retrofitting all the construction, ensuring all new is it built inclusively from the start has always been the guiding principle. i appreciate the original compromise that created the ada was designed to balance our national interest and assess ability with a desire to make private businesses cut allies in this and dev are rather then our adversaries. i don't want to upset the original balance that would make it harder to work together toward our common goal of compliance.
7:49 pm
but, i believe that we have to exercise strict oversight to ensure we are achieving progress towards assess ability. that is what the ada is meant to provide. if abuses of the process work against those gold, then i think it what i think it would it requires us to stop and pay attention. in florida which we talked about earlier in my own state, more than one in five originated in the southern district of florida. businesses have to retain the right to do the right thing. it has to be an incentive to do the right thing. the. the threat of a lawsuit is powerful, it works. but for actors who are making easily, correctable small fixes, things that would take a few minutes to remedy, we have to have a process that allows them to make the fixes, to adjust the grab bar. to rehang a coat hook and to do it quickly without a lawsuit. i do not take the idea of good faith lightly. it should be difficult,
7:50 pm
difficult standard to meet. it just shows that their partnership with the american society that is accessible and welcoming to everyone. the public life, is for everyone. we want to society were small businesses can thrive doing business with everyone. now, mr. weiss i have been told that some of the worst repeat plaintiffs do not even bother to follow up to see if the infractions have been corrected. this tells me that complaints often are about more about money than about making a facility more accessible. the court of forstmann officer in delray beach, and mild part of of south florida was quoted as saying, they do not care if you fix it or not, the businesses pay between 5000 and 12,000 dollars and it goes away. people are taking complete advantage. it's a money advantage. it's a money maker. it has nothing to do with compliance. in your experience, what has been the follow-through plaintiffs post settlement?
7:51 pm
>> i'm sorry to say it is virtually none. that is part of the problem. we spent millions of dollars ensuring our properties are co- compliant and compliant with the ada. we have millions of dollars invested in that we have attorneys who essentially cook to us with her hand out, not knowing about claims of noncompliance, they don't have specifics and they don't bother to follow up as long as you have's paid to settle the suit. as a follow-up i would mention both in your district mr. deutsch, this has become, this is not just the i csc issue, their press reports, one of one in fact this week of a serial plaintiff filing 1000
7:52 pm
lawsuits. the response to mr. cohen's reference to lawsuits in california, california has actually passed two pieces of legislation to actually curb the abuse of these lawyers even what the damages provision that he thinks will actually help. there are abuses going on so california has passed legislation to try to limit the abuses that are occurring there. >> mr. buckley, isn't there a difference between a business owner who refuses to include a required number of handicap spaces or who refuses to make the restrooms accessible and a business owner who runs a business, who followed all of the technical assistance as best as he or she could and the grab bar is 2 inches too high. or the paper towel holder is a couple of inches off, or the line on the handicap parking spaces there is john slightly
7:53 pm
crooked. there's a difference between them, isn't there? shouldn't? shouldn't we incentivize, don't want the people in the bad actors to actually have to do what's necessary and lawsuits that are required to get them to do it? shouldn't we require given opportunity to small businesses who use all good faith to comply with the law the opportunity to fix something when it might take five minutes to fix instead of making them pay $5000 when the lawsuit is filed? >> mr. chairman, mr. deutsch, with all due respect, if there is only issues the grab bars 2 inches off, the business fixes that, unless you're in a state with damages there is no money paid out --
7:54 pm
>> i want to correct that. and maybe i misunderstand. the stories i hear from the businesses in my district in south florida where one in five of these cases are filed, the story heard from the guy who runs the bagel shop that i stop in the morning who shared another story with me. he got hit with a lawsuit for one of these very minor mistakes. he has used all good faith to try to comply and you are right, he is going to raise up by the couple of inches and is going to cost you $10000. legal fees which is a cost he never should have had to incur. >> i am sorry, unless he is like somehow fought against the original complaint, why would there be attorney fees? >> the answers because the suit is filed before the business owner even knows what the issue is. so to get rid of that lawsuit you end up settling it.
7:55 pm
>> the chairman understands this and the ranking member understands there's no one who bites harder to keep the court room doors open for people who deserve.justice than justice than i do. >> billy mccummings telling the truth. >> but in this situation, overlooking is for someone to has exercise all good faith to be able to do the right thing without being forced to play and i strive and again amount of it and they will. >> i really appreciate the panel for being here, i think it's an important discussion. i yelled back. >> i think the gentlemen. this concludes today's hearing. without objection, all objection, all members will have five legislative days to submit questions for the witnesses for
7:56 pm
additional materials for the record. i want to thank the witnesses and the members and the audience for being here. this hearing is adjourned. [inaudible conversation] [inaudible conversation] [inaudible conversation] [inaudible conversation] [inaudible conversation] [inaudible conversation]
7:57 pm
[inaudible conversation] [inaudible conversation] [inaudible conversation] [inaudible conversation] comp one, one [inaudible conversation] [inaudible
7:58 pm
conversation] [inaudible conversation] [inaudible conversation] >> .. plaskett [inaudible conversation]
7:59 pm
[inaudible conversation]
8:00 pm
[inaudible conversations] >> coming up tonight on c-span2, a hearing on epa employee misconduct and then an update on the rural farm program and then nasa administrator charles boldin on the future of space travel and then an argument over the sixth amendment related to a speedy trial. employee misconduct at the environment protection agency was the topic of the oversight committee hearing on wednesday. the epa administrator and assistant general testified about the agency's response to allegations including sexual misconduct and theft.


info Stream Only

Uploaded by TV Archive on