Rethinking ADA Notification

RETHINKING ADA COMPLIANCE NOTIFICATION

By Allan Appel

I’ve always thought ignorance of the law is no excuse for non-compliance. And I still believe that. But if the purpose of The Americans with Disabilities Act is to achieve access, then maybe we advocates need to re-think our strategy just a bit.

Although it has been almost two decades since the ADA’s passage, many businesses and public facilities are not yet in compliance.

In the past, I have opposed federal legislation to provide for a 90-day notification to violators before a lawsuit could be filed. That proposal was flawed in two respects.

First, the bill had no teeth. There were no provisions for any penalty for the non-compliance. It was merely acknowledging the non-compliance and informing the offender that he had been caught and that he had 90 days to comply. Until the 90 day-period elapsed, the complainant was barred from filing suit.

Second, the 90-day period was arbitrary. Absent any ensuing regulation, the law required full compliance within that 90-day period. Clearly, some remedies to provide access are more time-consuming than others to accomplish. To require a fixed period for all violations was simply not realistic.

Any future legislation must provide for some kind of financial penalty, in addition to requiring compliance. Otherwise, the violator is indirectly rewarded for his non-compliance.

And the 90-day period needs to be shortened to 30 days, during which the violator must propose a written plan to achieve compliance. The parties would then work out the details. This procedure and the overseeing mechanism would of course be provided by regulation.

Many small businesses complain about unscrupulous lawyers who file nuisance lawsuits to extract fees from small businesses ignorant of the law. This proposal would eliminate those lawsuits since the complainant would be required to first adhere to the notification procedure. And all legal fees resulting from future litigation could be subject to approval by the court.

Also, if the cost of mere compliance is too burdensome for the small business, then let the parties work out a supervised plan to comply. After all, my proposed 30-day period is merely for notification, and not for full compliance. Perhaps the business’ trade association or local chamber of commerce could provide more education and financial resources to its member businesses, in addition to merely acting as its sounding board.

Allan Appel writes a biweekly column about disabilities. He can be reached c/o Scripps Treasure Coast Newspapers, 1939 S. Federal Highway, P.O. Box 9009, Stuart, FL 34994, or e-mail at aappel223@yahoo.com.