House subcommittee to address bill seeking to curtail ADA lawsuits brought by serial litigators

By Vimbai Chikomo | May 19, 2016

WASHINGTON–The House Judiciary Committee’s Subcommittee on Constitution and Civil Justice will be holding 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 that 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 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 fix a problem. Failure to meet these conditions would be grounds to further the lawsuit.

ADA suits are prevalent at federal court in the Northern District of Illinois. In 2015, 94 ADA Title III lawsuits were filed there - 77 of which were filed by only eight plaintiffs, each represented by the same lawyers.

“These lawsuits are not about justice or making people whole,” Travis Akin, executive director of the Illinois Lawsuit Abuse Watch, told the Madison County Record. “These lawsuits are about greed and making it rain with easy paydays for personal injury lawyers.”

Akin said that if these lawsuits really were about making businesses comply with ADA standards, then why wouldn’t the aggrieved person simply ask business owners to make the necessary changes before filing a lawsuit?

“Why the ‘sue first, ask questions later’ mentality?" he said. "The answer, of course, is that these lawsuits have nothing to do with correcting a wrong and everything to do with collecting a paycheck. The rise of ADA lawsuits in Illinois is an alarming trend.”

Left unchecked, this type of lawsuit abuse will only grow, Akin said, and legislators need to take action.

“Yes, business owners need to follow the Americans with Disabilities Act and do everything they possibly can to be compliant, but there is no need to sue businesses out of existence just to make them comply with the law,” he said. “Let’s work to enact reforms before Illinois becomes the next California.”

Earlier this year, Margie Milovich, owner of LaSalle Flowers, a family-owned River North flower shop, faced an ADA lawsuit filed by the same plaintiff who had sued her neighbor months earlier.  

In an article published last month in the Record, Milovich said that she was surprised because no one had ever complained to her about any issues with the flower shop in the 21 years since she began managing the store.

The lawsuit was filed by Mary Mizerk, a Chicago resident, and her attorney, John L. Steele of the Accessibility Law Group and formerly of the firm of Steele Hansmeier PLLC. 

Steele faces charges by the Illinois Attorney Registration Discipline Commission (ARDC)  over his conduct in courts that also include Hennepin County, Minn., the Southern District of Illinois, the Northern District of Illinois and the Central District of California.

The complaint against Milovich was one of many filed by Mizerk and Steele against businesses within close proximity of each other in Chicago’s River North neighborhood.

“This lawyer is targeting mom-and-pop places,” Milovich said of Steele. “There have been 14 lawsuits (nearby) … 14 of our local shops. He’s not going after the big people; (he’s targeting) small restaurants, small salons, small neighborhood pubs.”

The suit alleged that Mizerk, who suffers from osteoarthritis and is confined to a wheelchair, was unable to enter the flower shop because the doorway was raised 5 inches above the sidewalk.

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 said 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.”

He also 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, said his 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," he 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.

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Organizations in this Story

Accessibility Law Group American Tort Reform Association U.S. Representative Ken Calvert (CA-42) United States House Committee on the Judiciary

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