[NFBOH-Cleveland] Cleveland please read the origin of HB:271

[Suzanne Turner]

HB 271.pdf

As Passed by the House 

132nd General Assembly 

Regular Session Sub. H. B. No. 271 

2017-2018 

Representatives McColley, Rezabek 

Cosponsors: Representatives Henne, Antani, Wiggam, Arndt, Hood, Koehler, 

Sweeney, Kick, Thompson, Riedel, Seitz, Lipps, Goodman, Dean, Scherer,
Green, 

Blessing, Schaffer, Hughes, Anielski, Antonio, Boyd, Brown, Butler,
Celebrezze, 

Cupp, Duffey, Gavarone, Hagan, Hambley, Hoops, Johnson, Landis, LaTourette, 

Lepore-Hagan, Manning, McClain, Merrin, Patton, Pelanda, Perales, Reineke, 

Retherford, Rogers, Romanchuk, Smith, R., Stein 

A BI L L 

To enact section 4112.16 of the Revised Code to 

authorize an alleged aggrieved party to provide 

a notice of an alleged accessibility law 

violation in advance of filing a civil action 

and to establish the circumstances under which 

an alleged aggrieved party is entitled to 

attorney's fees in a civil action based on the 

violation. 

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 

Section 1. That section 4112.16 of the Revised Code be 

enacted to read as follows: 

Sec. 4112.16 . (A) Prior to filing a civil action allegin g 

violation of an accessibility law, the alleged aggrieved party 

ma y notify the owner, agent, or other responsible party of th e 

property where the alleged violation occurred by personal 

service, in accordance with applicable state or federal laws, or 

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Sub. H. B. No. 271 Page 2 

As Passed by the House 

by certified mail, of alleged accessibility law violations for 

which an action may be filed by the alleged aggrieved party. If 

an alleged aggrieved party does not serve notice, the alleged 

aggrieved party is not entitled to attorney's fees upon the 

judgment of a civil action alleging violation of an 

accessibility law unless the trial court determines that 

attorney's fees are appropriate due to the nature of the 

violations, including their willfulness, duration, or severity. 

If an alleged aggrieved party serves notice in accordance with 

division (B) of this section, the alleged aggrieved party is 

precluded from filing such a civil action until one of the 

following occurs: 

(1) The alleged aggrieved party receives a response as 

described in division (C)(1) of this section and the property 

owner, agent, or other responsible party of the property fails 

to make the improvements or bring the property into compliance 

with accessibility laws and fails to provide a reasonable 

explanation for the failure within sixt y days as required b y 

division (D) of this section. 

(2) The alleged aggrieved party receives a response as 

described in division (C)(2) of this section. 

(3) The alleged aggrieved party receives a response as 

described in division (C)(3) of this section, but the alleged 

a ggrieved party reasonably believes that the alleged violation s 

continue to exist. 

(4) The property owner, agent, or other responsible party 

of the property fails to respond to the notice within fifteen 

business days as required by division (C) of this section. 

(B) A notice provided pursuant to division (A) of this 

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Sub. H. B. No. 271 Page 3 

As Passed by the House 

section shall furnish similar information or be in substantially 

similar form to the following: 

THIS LETTER IS TO INFORM YOU THAT THE PROPERTY LOCATED AT 

(address of property), FOR WHICH YOU ARE THE PROPERTY OWNER, 

AGENT, OR OTHER RESPONSIBLE PARTY, MAY BE IN VIOLATION OF 

FEDERAL AND/OR STATE ACCESSIBILITY LAWS AND CAUSED HARM TO (name 

of alleged aggrieved party). 

SPECIFICALLY, THE POSSIBLE VIOLATION(S) HAS/HAVE BEEN 

IDENTIFIED AS FOLLOWS: 

(Notice must identify the specific facts that constitute 

the alleged violation, including the approximate date on which 

the alleged violation occurred or was observed and 

identification of the location of the alleged violation with 

sufficient detail, so that the location can be identified by the 

property owner, agent, or other responsible party.) 

YOU HAVE 15 BUSINESS DAYS TO RESPOND TO THIS NOTICE BY 

PERSONAL SERVICE OR CERTIFIED MAIL. YOUR RESPONSE MUST BE 

ADDRESSED TO (address where personal service may be received or 

certified mail may be sent). OHIO LAW ALLOWS YOU TO RESPOND IN 

ONE OF THREE WAYS: 

(1) YOU MAY EXPRESSLY STATE THAT IMPROVEMENTS WILL BE MADE 

TO BRING THE PROPERTY INTO COMPLIANCE WITH APPLICABLE 

ACCESSIBILITY LAWS. IF YOU RESPOND IN THIS MANNER, YOU HAVE A 

MAXIMUM OF 6 0 DAYS TO COMPLETE THESE IMPROVEMENTS. THE 60-DA Y 

PERIOD SHALL BEGIN ON THE DATE YOUR RESPONSE TO THIS NOTICE IS 

RECEIVED AT THE ADDRESS GIVEN ABOVE. IF THE IMPROVEMENTS 

NECESSARY TO BRING THE PROPERTY INTO COMPLIANCE WITH THE 

APPLICABLE ACCESSIBILITY LAWS ARE NOT COMPLETED WITHIN THE 60 - 

DA Y PERIOD, THE ALLEGED AGGRIEVED PARTY MAY BRING A LAWSUI T 

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Sub. H. B. No. 271 Page 4 

As Passed by the House 

AGAINST YOU. YOU MAY EXTEND THE 60-DA Y PERIOD ONLY IF YO U 

PROVIDE A REASONABLE EXPLANATION AS TO WHY IMPROVEMENTS CANNOT 

BE MADE WITHIN 6 0 DAYS. REASONABLE EXPLANATIONS INCLUD E 

DEMONSTRATED NEED FOR DELAY, SUCH AS CONSTRUCTION AND PERMITTING 

RELATED ISSUES. 

(2) YOU MAY CHALLENGE THE VALIDITY OF THE ALLEGED 

VIOLATIONS. IF YOU RESPOND IN THIS MANNER, THE ALLEGED AGGRIEVED 

PARTY MAY BRING A LAWSUIT AGAINST YOU IMMEDIATELY. 

(3) IF THE VIOLATIONS LISTED ABOVE ARE THE SAME AS OR 

SIMILAR TO PREVIOUS VIOLATIONS THAT YOU BELIEVE HAVE BEEN 

CORRECTED, YOU MAY RESPOND BY STATING THAT THE NECESSARY 

IMPROVEMENTS HAVE BEEN MADE TO BRING THE PROPERTY INTO 

COMPLIANCE WITH THE APPLICABLE ACCESSIBILITY LAWS. YOU MUST ALSO 

ATTACH EVIDENCE THAT VERIFIES THOSE IMPROVEMENTS. 

IF YOU HAVE ANY QUESTIONS ABOUT THIS NOTICE OR YOUR RIGHTS 

UNDER FEDERAL OR OHIO LAW, PLEASE CONTACT YOUR LEGAL COUNSEL. 

(C) Within fifteen business days after an alleged 

aggrieved party serves or sends a notice pursuant to division 

(A) of this section, the property owner, agent, or other 

responsible party of the property where the alleged violation 

occurred shall respond to the notice by personal service or 

certified mail to the alleged aggrieved party. That response 

shall do one of the following: 

(1) Expressly state that improvements will be made to 

bring the property into compliance with applicable accessibility 

laws.

(2) Challenge the validity of the alleged violation. If 

the property owner, agent, or other responsible party responds 

in this manner, the alleged aggrieved party may file an action, 

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Sub. H. B. No. 271 Page 5 

As Passed by the House 

subject to any applicable statutes of limitations, any time 

after receipt of that response. 

(3) State that the alleged violations identified by the 

alleged aggrieved party have been corrected to comply with 

applicable accessibility laws. The property owner, agent, or 

other responsible party shall attach evidence to the response 

that verifies those improvements. 

(D)(1)(a) If a property owner, agent, or responsible party 

of the property where the alleged accessibility law violation 

occurred responds in the manner described in division (C)(1) of 

this section, the property owner, agent, or responsible party 

shall have sixt y days to remedy the alleged violation. Th e 

sixty-da y period shall begin on the date the alleged aggrieve d 

party receives the response described in division (C) of this 

section. The owner, agent, or other responsible party may extend 

the sixty-da y period by not more than sixt y days upon providin g 

a reasonable explanation as to why the improvement requires more 

than sixt y days to complete. Reasonable explanations includ e 

demonstrated need for extension, such as construction and 

permitting related issues. 

(b) If the property owner, agent, or other responsible 

party of the property where the alleged accessibility law 

violation occurred responds in the manner described in division 

(C)(1) of this section and makes the improvements to bring the 

property into compliance with applicable accessibility laws 

within the sixty-da y period described in division (D)(1)(a) o f 

this section or provides a reasonable explanation as to why 

those improvements are not completed, the response as described 

in division (C)(1) of this section shall not be considered an 

admission of guilt and shall be inadmissible as evidence in any 

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Sub. H. B. No. 271 Page 6 

As Passed by the House 

future actions based on the same facts filed against the 

property owner, agent, or other responsible party. 

(2)(a) If the property owner, agent, or other responsible 

party of the property where the alleged accessibility law 

violation occurred fails to make the improvements to bring the 

property into compliance with applicable accessibility laws 

within the sixty-da y period described in division (D)(1)(a) o f 

this section and, in the opinion of the aggrieved party, fails 

to provide a reasonable explanation as to why those improvements 

are not completed, the alleged aggrieved party may file a civil 

action for accessibility law violation against that property 

owner, agent, or other responsible party. 

(b) In a civil action filed pursuant to division (D)(2)(a) 

of this section in which a plaintiff prevails, the plaintiff 

shall recover reasonable attorney's fees, in addition to any 

other remedies available to the plaintiff. However, the 

plaintiff shall not be entitled to attorney's fees under this 

division if all of the following are true : 

(i) The plaintiff filed the civil action prior to th e 

expiration of an extension invoked by the defendan t . 

(ii) The court determines that the defendant's explanatio n 

as to the necessity of the extension was reasonable. 

(iii) The defendant makes the improvements to bring the 

property into compliance with applicable accessibility laws 

during the period of extension. 

(c) If the property owner, agent, or other responsible 

party where the alleged accessibility law violation occurred 

makes the improvements to bring the property into compliance 

with the applicable accessibility laws within the sixty-da y 

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Sub. H. B. No. 271 Page 7 

As Passed by the House 

period described in division (D)(1) of this section and provides 

evidence to the alleged aggrieved party that the improvements 

have been made, or if the property owner, agent, or other 

responsible party demonstrates to the court's satisfaction that 

the explanation given for the necessity of an extension was 

reasonable, the alleged aggrieved party shall not receive any 

damages or attorney's fees for any action arising out of the 

same or similar facts that served as a basis for the alleged 

violation. The alleged aggrieved party may receive damages and 

attorney's fees for actions arising out of a recurrence of the 

same or similar alleged accessibility law violation if it is 

determined that the property owner, agent, or other responsible 

party failed to maintain accessibility following the initial 

improvements. 

(E)(1) This section shall not be construed to limit 

actions for recovery of special damages filed by any person who 

suffers an injury in fact because the person was denied full and 

equal access to an accommodation as required by federal or state 

law. 

(2) This section does not apply to charges filed wit h th e 

Ohio civil rights commission under Chapter 4112. of the Revised 

Cod e or deferred to the commission under federal law. Thi s 

section does not preclude the commission from investigating 

charges of discrimination against a place of public 

accommodatio n . 

(F) As used in this section: 

(1) "Accessibility law" means division (G) of sectio n 

4112.02 of the Revised Code as that division applies to a person 

with a disability or any federal law that ensures accessibilit y 

to services, programs, places of public accommodation, public 

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Sub. H. B. No. 271 Page 8 

As Passed by the House 

conveyance and modes of transportation, streets, highways, 

sidewalks, walkways, buildings, medical facilities, and other 

public places for a person with a disability . "Accessibilit y 

law" does not mean division (H) of section 4112.02 of the 

Revised Code or any other provision of the Revised Code relating 

to housing discrimination issues or actions. 

(2) "Business day" means a day of the week excluding 

Sunday and a legal holiday as defined in section 1.14 of the 

Revised Code. 

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From: Suzanne Turner <smturner.234 at gmail.com> 
Sent: Tuesday, July 17, 2018 9:35 PM
To: kennethury.nfboh.cleveland at gmail.com; NFBOH-Cleveland at nfbnet.org;
shawgriff781 at gmail.com; edgarsfarm at aol.com; 'Ali Benmerzouga'
<ali.benmerzouga at hotmail.com>; lmr.upshaw at gmail.com; Victory71351 at aol.com;
Campbelllegal87 at gmail.com; octaviaculbert at live.com;
natassha.ricks at medmutual.com; krsmith658 at gmail.com; stuff12993 at aol.com;
bdowdy1983 at gmail.com; william.h.turner at ssa.gov
Cc: smturner.234 at gmail.com
Subject: A Special Guest AT Our Cleveland Chapter Meeting

 

Cleveland,

 

On Friday, July 20, 2018 at our Chapter meeting,  Ohio Senator, Michael
Skindell from the 23rd district, will join us. We will discuss information
that the NFB of Ohio Legislature Committee addressed in a letter opposing
bill HB271. I am so pleased to have the Senator join our meeting. He has
been gracious enough to take time out of his busy schedule to spend time to
communicate with Cleveland. Let's show him our appreciation. We want to
bring forth awareness and provide our thoughts in a positive manner. So,
please be on time for this important meeting. We will have refreshments and
talk about this  bill.

 

If you have questions, let me know. 

/////

 

 

June 4, 2018

 

Dear Chairman Bacon, Vice Chairman Dolan, Ranking Member Thomas and members
of the Senate Judiciary Committee,

The National Federation of the Blind of Ohio, the leading membership
organization of blind Ohioans, opposes H.B.  271 Short Title: Give notice
before action for access; allow attorney's fees as passed by the House. In
fact, we unalterably oppose  any legislation that will weaken the already
fragile rights of people with disabilities.  We believe that this bill will
radically undermine the rights of people with disabilities while not
effectively protecting businesses from frivolous litigation. The current
evidence regarding the problems this bill seeks to address is, at best,
sparse and anecdotal and does not justify such a radical change to state
law.

The Americans with Disabilities Act was signed into law on July 26, 1990.
Twenty-eight years later all business owners should be aware of their
obligations under the law. Although this is certainly not always the case,
experience demonstrates that those  with disabilities covered under the ADA
do not file  frivolous litigation. Out of ignorance or inexperience people
who do not understand disability or the law addressing it  sometimes
interpret an initial filing as frivolous. This is how the myth has grown up
that disabled people are likely to file frivolous lawsuits. Rather than
placing additional burdens on people with disabilities, why not punish those
who bring frivolous law suits to the courts?

A civil rights law such as the ADA is effective only in so far as it is
understood by the general public. To that end the National Federation of the
Blind of Ohio stands ready to educate business owners about accessibility.
Ohio has a network of Independent Living Centers that often (if resources
permit) can provide technical assistance and guidance on accessibility to
businesses. The Great Lakes ADA Center also provides webinars and toolkits
for businesses interested in coming into compliance with accessibility
requirements of the law. 

Rather than eliminate the stick of enforcement, we would hope that the
Legislature would look at how to provide some carrots of encouragement and
other supports to help businesses to come into compliance, without
undermining the legal rights of individuals with disabilities. Our struggle
for equal access has been long and hard. Please don't push us back into
inequality.

Many organizations representing people with disabilities have chosen to
remain neutral because they see this legislation as permissive rather than
prescriptive.  Also many organizations are neutral because this legislation
applies only to civil litigation filed in state court and does not affect
one's ability to file in Federal court.

The National Federation of the Blind of Ohio believes that the Ohio
Legislature and the general public are taking a dangerous ride down a
slippery slope if we start to weaken individual protections. We urge you to
work with us to improve public education about accessibility and to provide
stronger penalties against attorneys who file frivolous acts.

 

Sincerely,

Richard Payne,  President

National Federation of the Blind of Ohio

937-396-5573 or 937-829-3368

Rchpay7 at gmail.com <mailto:Rchpay7 at gmail.com> 

 

 

 

 

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