Ohio House Bill 333 will let Owners sue Disabled People Seeking Access to Buildings

posted by Michael Fortney  |  Nov 23, 2013 07:26 AM in Employment Law

When property owners fail to provide access to disabled people as required by law, both Ohio and federal law let disabled people file suit to gain access.  House Bill 333, proposed by Ohio House Representative Michael Stinziano, would bar that, unless the disabled person first serves a technically complex and mistake-free notice months in advance. If the disabled person files suit without serving a proper notice, the building owner can sue the disable person.

House Rep. Mike Stinziano justified this punitive measures as a solution to problem that Ohio does not have. Rep. Stinziano’s Memorandum asking for cosponsors (he only got five) points to one example of the conduct HB 333 is designed to deter, in San Bernardino County, California. My search of cases filed in Ohio turned up nothing of the sort here. 

Nonetheless, HB 333 would bar suits by disabled people for access to buildings unless the disabled person first:

  1. Serves notice “of all alleged accessibility law violations for which an action may be filed” and 

  2. Waits until:

    The property owner denies that the accessibility improvement is required;

The property owner claims that it made the improvement, but the aggrieved party does not think so; or

The property owner does not make the improvement or otherwise comply within 120 days.

This limits a building owner’s duty to fix existing accessibility violations to those for which the owner receives a complicated notice. It then gives the owner at least four months to fix the violation, even though the owner has a duty to fix it right away. 

Since the notice must identify “all alleged accessibility law violations for which an action may be filed,” the notice will not be sufficient if the owner is violating numerous laws at once, but the tenant only identifies some of them.  Moreover, once a building owner receives a notice of a violation and fixes it within 120 days, HB 333 immunizes the owner from damages or fees “for any action arising out of the same or similar facts that served as a basis for the alleged violation.” This would let an owner get off the hook for pending damage and legal fee claims simply by serving itself with a notice of its own violations and, and fixing them within the next four months.  

Obnoxiously, HB 333 requires the court or jury at trial to “consider previous or pending actual damage awards received or prayed for by that plaintiff for the same or similar injury.” The rules of evidence, which otherwise govern trial, require the opposite. Normally, courts must exclude evidence of a litigant's character, like that of the owner for committing accessibility violations. HB 333 creates an exception for disabled people who assert their rights.

Worst of all, HB 333 allows the owner to recover fees in any case where an aggrieved party files suit without first serving the notice and then waiting the required time. This lets building owners retaliate against disabled people who take them to court, even if the suit is otherwise meritorious, as long as the notice is in some way flawed. This is a punitive trap for the unwary, set only for the disabled, to solve a problem that does not exist.

It’s like using a shotgun to kill mosquitoes, but without the mosquitoes. Ohio has no reason to let non-compliant building owners sue disabled people. HB 333 is a profoundly bad idea.

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