The Maine State Legislature’s Judiciary Committee has voted nine-to-zero against a bill that would have amended the Maine Human Rights Act to give business owners the opportunity to remove physical barriers that hinder disabled individuals’ access to their property before a lawsuit could be filed against them.
Introduced by Sen. Mattie Daughtry (D-Cumberland), LD 2195 — An Act to Protect Businesses from Fraudulent or Predatory Financial Settlements by Allowing Those Businesses Opportunities to Remove Architectural Barriers in Noncompliance with the Maine Human Rights Act — was an after deadline bill taken up for consideration during this legislative session.
Under the proposed legislation, disabled individuals who encounter an architectural barrier that prevents them from accessing a publicly-available space — such as a store, restaurant, or hotel — must provide written notice to the property owner describing the specific barrier they faced, when they faced it, and whether it was temporary or permanent.
The property owner would then be given sixty days to respond to the individual with “a description of the steps the owner plans to take to remove the architectural barrier.”
An additional sixty days would then be allotted for the owner to “remove or make substantial progress in removing the architectural barrier.”
Should the owner fail to meet these deadlines, the individual who encountered the physical barrier would then be allowed file a “complaint or civil action” against the owner of the property.
Click Here to Read the Full Text of LD 2195
While retail and hospitality interests testified in support of this legislation at the bill’s public hearing, attorneys and disability rights advocates offered testimony in opposition.
The organizations representing businesses interests — including the Retail Association of Maine and Hospitality Maine — argued in their testimony that this legislation creates an “important mechanism for businesses who are trying to comply with the law.”
Lawsuits filed by self-appointed Americans with Disabilities Act (ADA) testers — disabled individuals who have no intention of actually visiting or utilizing the establishments in violation of the ADA against which they take legal action — were at the heart of the testimony in favor of this bill.
“We do not downplay the seriousness and importance of accessibility for customers,” Hospitality Maine wrote. “We believe the right to cure provisions in this bill would relieve so many businesses who are worried they are next on the tester list. My experience in working with members who have been involved in ADA complaints is that they were unaware of the issue — nefarious neglect is certainly the exception and not the rule.”
The Retail Association of Maine suggested in its testimony that Maine take Utah’s lead in addressing these concerns by amending the proposed bill to establish an “alternative resolution process” in which a “non-compliant business can still be sued, but a business that fixes the issue can prevent a costly settlement.”
Disability rights advocates and attorneys, on the other hand, argued in their testimony that, if passed, LD 2195 would impose an undue burden on disabled individuals who encounter architectural barriers when attempting to access public-facing spaces.
The Maine Trial Lawyers Association suggested that this bill would institute “new and unreasonable legal hurdles for those with disabilities who are seeking to have access to facilities in Maine.”
It was argued across several pieces of testimony offered to the Committee that “businesses have been on notice for more than three decades now that they have to be reasonably accessible to those with disabilities.”
“This burden-shifting, purportedly necessary to provide the businesses with notice of their noncompliance, is particularly inappropriate in light of the fact that businesses have been required to remove these barriers by both state and federal law for more than two decades,” the Maine Human Rights Commission testified.
Voting “ought not to pass” on this bill were Sen. Anne Carney (D-Cumberland), Rep. Matt Moonen (D-Portland), Rep. Jennifer Poirier (R-Skowhegan), Rep. Amy Kuhn (D-Falmouth), Rep. Rachel Henderson (R-Rumford), Rep. Stephen Moriarty (D-Cumberland), Rep. Erin Sheehan (D-Biddeford), Rep. Adam Lee (D-Auburn), and Rep. John Andrews (R-Paris).
Absent from the Committee vote were Sen. Eric Brakey (R-Androscoggin), Sen. Donna Bailey (D-York), Rep. Aaron Dana (Passamaquoddy Tribe), and Rep. David Haggan (R-Hampden).
Late last year, the United States Supreme Court declared moot an ADA tester’s lawsuit against Acheson Hotels, which owns and operates Coast Village Inn and Cottages in Wells.
This lawsuit was originally one of seven that Laufer filed in Maine that year, and one of more than 600 that she has filed over the past few years — primarily against small hotels and motels across the country.
[REALTED: Supreme Court Declares ADA Tester’s Lawsuit Against Maine Hotel Moot]
At the beginning of December, the Court released its decision to vacate judgement in the case of Acheson Hotels, LLC v. Laufer and direct the lower court to dismiss the case as moot in light of the plaintiff’s voluntary dismissal of the case due to the misconduct of an attorney with whom she has worked on other lawsuits.
Justice Clarence Thomas and Justice Ketanji Brown Jackson each offered separate concurring opinions, while the other seven justices signed onto the majority opinion.
The Judiciary Committee has not yet officially released its “Ought Not to Pass” report for LD 2195.
