WASHINGTON–The House Judiciary Committee’s Subcommittee on Constitution and Civil Justice will hold a hearing today on the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act, which aims to protect small businesses from the widespread abuse of the Americans with Disabilities Act (ADA).
U.S. Rep. Ken Calvert (R-CA), who is sponsoring the bill, will testify before the committee in support of the bill he says will help prevent plaintiffs’ lawyers from “trying to enrich themselves on the backs of the disabled.”
The ACCESS Act, also known as H.R 241, would require an aggrieved person notify a business of an ADA violation in writing, and give the business owner 60 days to provide the aggrieved individual a detailed description of improvements to remedy the violation. Then, the owner would have 120 days to remove the infraction. Failure to meet these conditions would be grounds to further the lawsuit.
Martin H. Orlick, Esq. of Jeffer Mangels Butler & Mitchell LLP wrote an article on ADA lawsuit abuse, pointing out that minority entrepreneurs are often the target of such frivolous lawsuits.
“Indeed, lawyers from Florida and other states have joined forces with local attorneys to file scores of ADA lawsuits against small businesses, many of which are owned by minority entrepreneurs,” Orlick wrote.
In 2014, NBC Bay Area reported that 3303 ADA lawsuits had been filed in Florida since 2005.
ADA lawsuits have become prevalent particularly in South Florida. More than 1 in every 5 ADA complaints brought to courts across the country were filed in the Southern District of Florida in 2013, making many local business owners fearful of being targeted.
The ADA was enacted in 1990 by Congress, and prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications and governmental activities.
Plaintiffs’ attorneys stand to gain the most from ADA lawsuits because the act does not provide damages, and was designed to give citizens incentive to bring the lawsuits by allowing them to recover their attorney’s fees and court fees.
Calvert told the Florida Record that as a property owner himself, he has had to deal with complaints from people who find minor discrepancy in a building or in following the regulations, and instead of being given time to correct the infraction, owners get slapped with lawsuits and “lawyers get rich.”
“We all want to have access (for) the disabled, we just don’t want to make this an excuse for lawyers to sue small business owners,” he said. “Nobody is objecting to making sure that we have access for the disabled.”
Calvert said some of the infractions are very minor, like not having a sign in the right location or neglecting to paint a line in the right way.
Instead of rushing to file lawsuits, Calvert said business owners should be given an opportunity to fix infractions and comply with the law.
Darren McKinney, director of communications for the American Tort Reform Association, told the Florida Record that the association is in full support of the bill.
“Although realistically, being an election year and with the stranglehold that the trial bar has on Senate Democrats generally, one can’t be particularly optimistic about the bill," McKinney said. "But certainly it is needed; the congressman is to be applauded.”
McKinney said small businesses around the country are supportive of the bill because ADA lawsuits “are spreading like kudzu all around the country now.”
Calvert said the issue is not a Republican or Democrat issue, but just a common-sense solution to a problem.
“This is supposed to help people that are disabled, not help some attorney get his kids through college,” he said
But he’s expecting resistance from those “trying to enrich themselves on the backs of the disabled.”
“I don’t think those guys really give a hoot about the disabled; they care about their own bank accounts,” he said.
Calvert has never had a complaint from disabled groups about being given a chance to fix infractions. In fact, people with disabilities want to get the problem fixed to make sure they get access, he said.
“This is the kind of thing that is common-sense stuff, and I think we need to get this passed as soon as possible," he said.