ADA enforcement proposal could spur more lawsuits

Vehicles drive past the Colorado Capitol.

Individuals with disabilities could file legal actions against businesses more easily and receive greater monetary awards under a legislative proposal that advocates say is long overdue but that skeptics say will lead to an increase in “drive-by lawsuits.”

House Bill 1032 — sponsored by state Rep. David Ortiz, a Centennial Democrat who was paralyzed below the waist when his Army helicopter crashed in Afghanistan in 2012 and now uses a wheelchair — eked out of the House Judiciary Committee on a 7-6 vote Tuesday. It’s not been scheduled yet for debate before the full House.

The bill seeks to make several changes to existing law, most notably by allowing plaintiffs in disability-discrimination cases to seek damages in state court for emotional distress that can run as high as $250,000, or $500,000 in extenuating circumstances. HB 1032 also would let courts order both monetary damage and required compliance, would let plaintiffs file lawsuits before they have exhausted administrative remedies through the Colorado Civil Rights Division and would require rather than permit courts to award attorneys’ fees to prevailing plaintiffs.

A history of wrongs

Ortiz said the changes are necessary because 33 years after passage of the Americans with Disabilities Act, too many businesses and governments offering public accommodations make it impossible for him and others like him to access everyday offerings. Raising potential penalties will ensure people don’t wait for a slap on the wrist to fix problems that have been outlawed for decades and will offer financial incentives for attorneys who don’t work for nonprofit disability-focused legal centers to take cases on behalf of those clients, he said.

“This ADA has existed for 30 years … If people are choosing to not understand what is required of them, that is exactly what that is — a choice,” Ortiz told committee members. “The system is geared to allow discrimination through lack of access to continue, and what this bill does is try to fix that.”

But several opponents, including one of Ortiz’s fellow Democrats on the committee, said that in trying to right the historical wrongs of bad actors, the proposal goes too far.

Courtenay Patterson, a Longmont attorney specializing in defending businesses against ADA claims, said she’s seen an explosion of out-of-state lawyers filing lawsuits in recent years against small businesses for things like hanging signs for disabled parking spots five inches two low — a claim backed Tuesday by several small-restaurant owners targeted by such suits. Attorneys will seek sums of $15,000 or so and say they will take the business owners to court if they don’t pay them — threatening lengthy legal proceedings that could hurt them even more financially — and HB 1032 will allow more of that, she said.

“To a big corporation, 10 to 15 thousand dollars is not a big deal. But for those small, local businesses, 10 to 15 thousand dollars can break them, especially coming out of Covid,” Patterson said. “The proposed bill is not going to increase accessibility. It isn’t going to increase compliance with the ADA. All it will do is open the floodgates for lawsuits.”

More lawsuits coming

Such “drive-by lawsuits” — as Dan Block, a shareholder at Robinson Waters & O’Dorisio P.C. called them — will be even harder to avoid because HB 1032 doesn’t offer accused business owners the right to cure problems. Block said he doesn’t disagree with a provision that states that no place of public accommodation can discriminate against individuals with disabilities, but he characterized the increased damages the bill offers as fuel that could make the filing of similar suits more attractive.

Jack Johnson, public policy liaison for legal firm Disability Law Colorado, noted that federal law accommodated emotional-damage claims for many years until the U.S. Supreme Court ruled in 2022 that such damages no longer could be sought. About two-thirds of states allow for emotional damages in their laws, but Colorado is not among them and essentially would block any chance for such claims to move forward without this bill, he said.

HB 1032 also would restore claimants’ ability to bypass the CCRD administrative process — a process that Ortiz and several attorneys described as unresponsive to the needs of individuals with disabilities — that existed up until about a decade ago. After a 2014 Colorado provided additional protections to service-dog owners, courts began requiring that plaintiffs exhaust all administrative remedies before filing lawsuits, and this would supersede such new precedent, explained Andrew Montoya, an attorney for the Colorado Cross-Disability Coalition.

Costs to businesses

Business and legal groups concerned with some aspects of HB 1032 asked for Ortiz to cap emotional damages at $3,500, but he declined, saying that the injuries that he and others accrue when they are unable to access places are emotional and take their toll. He did clarify through an amendment to the bill Tuesday that damage limits will mirror Colorado’s existing cap of $250,000 on non-economic damages, though that number can be doubled if there is evidence that more money is justified.

Supporters like Rep. Mike Weissman, D-Aurora, noted that a clause in the law already entitles small-business defendants to a 50% reduction in their statutory fine if it corrects the noted lack of accessibility within 30 days of receiving a complaint. And Montoya agreed with Ortiz that HB 1032 is not creating new law so much as forcing businesses to comply with a law that was signed in 1990.

“We are talking about requirements that have been in law for 30 years,” Montoya said. “So, a lot of this stuff already should have been changed, but it hasn’t.”

Colorado state Rep. Marc Snyder speak to an attendee at a 2022 Colorado Chamber of Commerce legislative reception.

Rep. Marc Snyder, D-Manitou Springs, said, however, that the bill is written like a proposal that is introduced with the purpose of getting amended down to a consensus level — but is instead being pushed through as something whose sponsor doesn’t want it to be changed. Saying HB 1032 “goes too far,” Snyder joined Democratic Rep. Bob Marshall of Highlands Ranch and all committee Republicans in voting against it and asked Ortiz to consider adding provisions to encourage compliance rather than just punishing noncompliance.

“In my experience, the best and most effective laws have both a carrot and a stick,” Snyder said. “I can see a lot of sticks in here, but I don’t see any carrots.”