ADA Drive-by Lawsuits Reform
SB 827 (Sen. Seliger) – HB 1463 (Rep. Smithee)
The Texas Restaurant Association, Texas Civil Justice League, and other business trade groups are supporting this legislation to protect businesses from bad faith ADA claims.
In recent years, Texas has seen a large increase in the number of Americans with Disabilities Act (ADA) lawsuits targeting restaurants and other businesses. The ADA allows an individual to sue a business for violations of the ADA. Unfortunately, the ADA does not require that a person actually be harmed or aggrieved by the alleged violation of the Act.
As a result, there has been an increase in “drive-by” lawsuits under the ADA. The ADA requires places of “public accommodation” to provide equal access to their goods and services for individuals with disabilities. The term “public accommodation” is broadly defined and applies to traditional brick and mortar facilities (e.g., restaurants and bars, shopping centers, inns and hotels, museums, schools) as well as websites and electronic applications. Importantly, places of public accommodation must make reasonable modifications to their policies, practices, and procedures so that their goods and services are available to people with disabilities. This includes modifying programs or practices (unless the modification would fundamentally alter the goods or services), making available auxiliary aids and services, and removing architectural barriers.
Most drive-by lawsuits involve individuals, attorneys, or their so-called “expert witness” driving by a place of business to determine whether any architectural barriers exist for disabled individuals. Oftentimes, the individual alleging the ADA violation has never been in the place of business nor been affected by the alleged violation. These lawsuits are often accompanied by a settlement letter offering the business the chance to settle the claim for $5,000-7,000 and attorneys’ fees with no requirement that the alleged violation be cured.
SB 827/HB 1463 address the proliferation of drive-by lawsuits. The legislation provides that:
- A person asserting an ADA claim give notice to the business before filing suit
- The notice contains information about the person asserting the claim and details of each alleged violation of the ADA and the time, place, and manner in which the person discovered the alleged violation
- The person receiving notice of an alleged violation has the right to cure the violation within 150 days
- The person receiving notice must provide notice of the correction made
- Filing of suit require proof of notice an opportunity to cure
- The Attorney General may bring an action against a person for filing an ADA claim in bad faith. The Attorney General may seek an injunction against the person, seek civil penalties up to $50,000 per violation, and restitution against the recipient of a bad faith claim
Senate Bill 827 was filed by Senator Kel Seliger on February 10, 2017. Its companion, House Bill 1463 was filed on February 1, 2017 by Representative John Smithee.