The Americans with Disabilities Act: Legislation Concerning Notification Prior to Initiating Legal Action

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The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in
employment, public services, and public accommodation and services operated by private ^th
entities. Since the 106 Congress, legislation has been introduced to require plaintiffs to provide ^th
notice to the defendant prior to filing a complaint regarding public accommodations. In the 110
Congress, H.R. 3479 was introduced by Representative Keller to amend Title III of the ADA to
require notification.

The Americans with Disabilities Act.........................................................................................1
Statutory Provisions............................................................................................................1
Judicial Decisions...............................................................................................................2 ^th
Notification Legislation in the 110 Congress..........................................................................4
Previous Legislation..................................................................................................................4
Author Contact Information............................................................................................................5

The Americans with Disabilities Act, 42 U.S.C. §§12101 et seq., has often been described as the
most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It provides broad
nondiscrimination protection and, as stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with ¹
disabilities.”
Title III provides that no individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns, leases (or ²
leases to), or operates a place of public accommodation. Entities covered by the term “public
accommodation” are listed and include, among others, hotels, restaurants, theaters, auditoriums,
laundromats, museums, parks, zoos, private schools, day care centers, professional offices of ³
health care providers, and gymnasiums. Although the sweep of Title III is broad, there are some
limitations on its nondiscrimination requirements. A failure to remove architectural barriers is not ⁴
a violation unless such a removal is “readily achievable.” “Readily achievable” is defined as ⁵
“easily accomplishable and able to be carried out without much difficulty or expense.”
Reasonable modifications in practices, policies or procedures are required unless they would ⁶
fundamentally alter the nature of the goods, services, facilities, or privileges. No individual with
a disability may be excluded, denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and services unless the entity can
demonstrate that taking such steps would fundamentally alter the nature of the goods, services, or ⁷
facilities or would result in an undue burden. An undue burden is defined as an action involving ⁸
“significant difficulty or expense.”
The remedies and procedures of section 204(a) of the Civil Rights Act of 1964 are incorporated in ⁹
Title III of the ADA. This allows for both private suit and suit by the Attorney General when
there is reasonable cause to believe that there is a pattern or practice of discrimination against
individuals with disabilities. Monetary damages are not recoverable in private suits but may be ¹⁰
available in suits brought by the Attorney General. Section 204(c) of the Civil Rights Act

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requires that when there is a state or local law prohibiting an action also prohibited by Title II, no
civil action may be brought “before the expiration of thirty days after written notice of such
alleged act or practice has been given to the appropriate State or local authority....” The ADA does
not specifically incorporate this requirement, and the courts which have considered the issue have ¹¹
generally found that this requirement was not incorporated in the ADA.
Although situations involving the filing of multiple law suits by an individual with a disability
based on deminimus violations have generally been settled out of court, there have been judicial ¹²
decisions involving these issues. Generally, the cases that have gone to court have addressed
questions concerning whether the plaintiff is a vexatious litigant or whether the plaintiff has
standing. In at least one case, a court held that pre-litigation unambiguous notice and a reasonable
opportunity to cure were required prior to the award of attorneys’ fees.
In Molski v. Mandarin Touch Restaurant¹³ a California district court found that the plaintiff was a
vexatious litigant who filed hundreds of law suits designed to harass and intimidate business
owners into agreeing to cash settlements. The plaintiff, Jack Molski, had a physical disability
which required that he use a wheelchair and had filed between 300-400 lawsuits in federal courts
since 1998. The district court reviewed the cases and found that “many are nearly identical in ¹⁴
terms of the facts alleged, the claims presented, and the damages requested.” In fact, the court
noted in one complaint Mr. Molski claimed that on May 20, 2003, he went to El 7 Mares
restaurant which he alleged lacked adequate parking and had a food counter that was too high.
After the meal, the plaintiff alleged that he attempted to use the restroom but because the toilet’s
grab bars were improperly installed, he injured his shoulder and he was also unable to wash his
hands due to faulty design. In two other cases, Mr. Molski alleged that he encountered almost
identical problems in another restaurant and at a winery on the same day, May 20, 2003. The ¹⁵
court found these complaints to be indicative of a clear intent to harass businesses. Even though
the court noted that it was “possible, even likely, that many of the businesses sued were not in full
compliance with the ADA,” the court found the sanctions for bad faith were not therefore barred,
especially where the motive was to garner funds. The district court ordered the plaintiff to obtain
the leave of the court prior to filing any other claims under the ADA observing that “in addition to

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misusing a noble law, Molski has plainly lied in his filings to this Court. His claims of being the
innocent victim of hundreds of physical and emotional injuries over the last four years defy belief ¹⁶
and common sense.” In a related suit, the California district court also found against the counsel
in the Molski case holding that the counsel was required to seek leave of the court before filing ¹⁷
any additional ADA claims.
These two cases were upheld on appeal to the ninth circuit in Molski v. Evergreen Dynasty ¹⁸
Corp. After a detailed examination of the cases in light of standards for vexatious litigation, the
ninth circuit noted:
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^larg^{e n}^u^m^b^{er of}ⁿ^earl^y^-ⁱ^deⁿ^tic^{al com}^p^laiⁿ^ts^co^nt^aⁱⁿ^fa^c^t^ua^l^a^l^l^e^ga^tⁱ^o^{ns t}^h^a^t^a^r^e^c^o^nt^rⁱ^ve^d^,¹⁹
^ex^agg^e^{rated, an}^{d defy}^co^mm^oⁿ^s^eⁿ^s^e.
Similarly, the court of appeals held that the district court was within its discretion to impose a pre-
filing order. The ninth circuit observed “[t]hat the Frankovich Group filed numerous complaints
containing false factual allegations, thereby enabled Molski’s vexatious litigation, provided the ²⁰
district court with sufficient grounds on which to base its discretionary imposition of sanctions.”
Several courts have found that a plaintiff lacks standing to bring an ADA claim for injunctive
relief under Title III if the plaintiff cannot establish that he or she intends to return to the entity ²¹
with the alleged ADA violations. In Harris v. Stonecrest Care Auto Center, the district court
questioned the plaintiff’s credibility due to the fact that he had brought at least twenty other ADA
related lawsuits and carefully examined the requirements of standing. Noting that Title III of the
ADA was intended to remedy discrimination in the area of public accommodation by providing
injunctive relief, the court concluded that since the plaintiff had visited the gas station “solely for
the purpose of bringing a Title III claim and supplemental state claims, any injunctive relief (the ²²
court) might grant would not satisfy the redressability requirement of standing.”
Similarly, in Tampa Bay Americans with Disabilities Association, Inc. v. Nancy Markoe Gallery, ²³
Inc., the court found that the plaintiff failed to demonstrate a real and immediate threat of future
injury since her visits to the store were infrequent, there was a gap in time between visits, and she
did not live in the same city as the store. The court also noted “with some concern” that the
Tampa Bay Americans with Disabilities Association had filed sixteen previous ADA cases and the ²⁴
individual plaintiff had filed fourteen.

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In another California case, Doran v. Del Taco, Inc.,²⁵ the court denied attorneys’ fees where a
plaintiff who uses a wheelchair had won a settlement against a restaurant where he alleged he had
encountered architectural barriers. Following a discussion of the use of ADA to create profits for
law firms, the court held it was “fair and reasonable to require pre-litigation unambiguous notice
and a reasonable opportunity to cure before allowing attorneys’ fees in an ADA case.”

Changes in the ADA’s statutory language to address the issue of vexatious law suits have also ²⁶
been proposed. H.R. 3479 would add provisions to the remedies and procedures of Title III of
the ADA to require a plaintiff to provide notice by registered mail of an alleged violation to the
defendant. This notice would be required to contain the specific facts regarding the alleged
violation including the identification of the location at which the violation occurred, and the date
on which the violation occurred. The notice also would require informing the defendant that civil
action may not be commenced until the expiration of a ninety day period. A state or federal court
would not have jurisdiction for a civil action filed pursuant to Title III of the ADA or under a
provision of state law that conditions a violation of any of its provisions on a violation of the act
unless this notice is provided, at least ninety days have passed, and the complaint states that, as of
the date on which the complaint is filed, the defendant had not corrected the alleged violation.
The notification provisions would not apply to civil actions brought under Rule 65 of the Federal
Rules of Civil Procedure or civil actions under state or local court rules requesting preliminary
injunctive relief or temporary restraining orders. H.R. 3479 was referred to the House Judiciary
Committee.
Representative Foley introduced the ADA Notification Act, H.R. 2804, 109^th Congress, on June 8, ^th

2005. This bill has the same substantive requirements as H.R. 3479 in the 110 Congress. H.R. ^th

728, 108 Congress, was introduced in the House on February 12, 2003 with essentially the same ^th

language as bills introduced in previous Congresses. H.R. 2804, 109 Congress, differs somewhat
from H.R. 728. For example, H.R. 728 would have allowed notice to be provided in person, not
just by registered mail. H.R. 728 was referred to the House Judiciary Committee and to the ^th
Subcommittee on the Constitution. Although the bill was not passed in the 108 Congress, the
House Subcommittee on Rural Enterprises, Agriculture, and Technology of the House Small ²⁷
Business Committee held hearings on the bill on April 8, 2003.

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The two ADA Notification Acts in the 107^th Congress, H.R. 914²⁸ and S. 792,²⁹ like their ³⁰³¹^th³²
predecessors H.R. 3590 and S. 3122, 106 Cong., contained similar language. There was no ^th
committee action on the ADA notification legislation in the 107 Congress. Hearings were held
by the Subcommittee on the Constitution of the House Committee on the Judiciary on H.R. 3590 ³³
on May 18, 2000.
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