House subcommittee to hear testimony on bill seeking to curb ADA lawsuit abuse

By Vimbai Chikomo | May 19, 2016

WASHINGTON -- Congressman Ken Calvert, R-Calif., will be testifying before the House Judiciary Committee’s Subcommittee on Constitution and Civil Justice today in support of a new bill he introduced earlier this year.

The bill seeks to protect small businesses from the widespread abuse of the Americans with Disabilities Act (ADA) by plaintiffs’ lawyers Calvert says are “trying to enrich themselves on the backs of the disabled.”

The ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act, also known as H.R 241, would require an aggrieved person to 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.

Although California is considered ground zero for ADA lawsuits, small businesses around the country with modest budgets have taken a financial hit.

“We’ve seen cases of this type of lawsuit abuse in Pennsylvania,” Gene Barr, President and CEO of the Pennsylvania Chamber of Business and Industry, told the Pennsylvania Record. “We need to put reforms in place to ensure that the ADA is protecting those individuals it was truly intended to and is not used as another avenue by plaintiff attorneys to go after deep pockets for monetary gain.”

In 2014, NBC Bay Area reported that 677 ADA lawsuits had been filed in Pennsylvania since 2005.

Calvert, who is sponsoring the bill,  told the Pennsylvania 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.”

The ADA was enacted in 1990 by Congress, and prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities.

Cory A. Iannacone, Esquire of Rhoads & Sinon LLP wrote an article on ADA lawsuit abuse stating that since the enactment of ADA, plaintiffs’ attorneys have taken advantage of the attorney’s fee provision and teamed up with disabled individuals to bring claims of ADA violations.

“These lawsuits rarely go to trial and often end with businesses spending substantial money in the form of renovations to their establishments and also attorneys’ fees—both their own attorneys’ fees and the plaintiffs’ attorneys’ fees,” he wrote. “The increase in these lawsuits is the result of plaintiffs’ attorneys who have taken advantage of the many misconceptions businesses have when it comes to the ADA, along with the fact that the ADA permits plaintiffs to recover their attorneys’ fees.”

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 Pennsylvania 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. 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.

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