WASHINGTON – Darren McKinney of the American Tort Reform Association last week called on U.S. Sen. Dianne Feinstein (D-Calif.) to support the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act, also known as House Resolution 241, which is designed to help small businesses comply with the Americans with Disabilities Act.

“We are fully supportive of it, and we’re hopeful that Sen. Feinstein might be willing support it in the Senate,” McKinney told the Northern California Record. “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.” 

Despite the uncertainty regarding the bill’s status in the Senate, McKinney said HR 241 “certainly is needed.” He also commended U.S. Rep. Ken Calvert (R-Calif.), who introduced the bill in January 2015.

“Certainly his small business constituents and all small business folks in California and around the country are supportive of it, and California certainly remains ground zero for these disability access lawsuits,” McKinney said. “But they are spreading like kudzu all around the country now, and more and more states and more and more small business communities around the country are being afflicted by these bogus lawsuits.”

McKinney said Feinstein sent a letter three or four years ago to the then-Democratic Senate president in California expressing her frustration after hearing from her small business constituents in the state.

“The situation for (Feinstein’s) constituents has only got worse in California, even though the state passed a mild reform,” McKinney said. “The situation, certainly from our perspective, requires federal legislation and hopefully Sen. Feinstein can be a leader in the Senate and get behind the congressman’s bill or offer her own, which is a companion bill.”

Calvert testified last week before the subcommittee on Constitution and civil justice of the House Judiciary Committee in support of the ACCESS Act.

According to a release from Calvert’s office, “the ACCESS Act would alleviate the financial burden small businesses are facing, while still fulfilling the purpose of the ADA.”

Specifically, under the act, anyone aggrieved by a violation of the ADA would provide the owner or operator with a written notice of the violation. Within 60 days, the owner or operator would be required to provide that person with a description outlining improvements that would be made to address the barrier. The owner or operator would then have 120 days to remove the infraction. The failure to meet any of these conditions would allow a lawsuit to go forward.

Calvert said ADA lawsuits are especially prevalent in California. 

The California Chamber of Commerce said the state has 40 percent of the nation’s ADA lawsuits, but only 12 percent of the country’s disabled population. The congressman said these lawsuits “place exorbitant legal fees on small businesses and oftentimes they are unaware of the specific nature of the allegations brought against them.”

Calvert said in his testimony that former U.S. Rep. Dan Lungren (R-Calif.) championed the issue and introduced the original ACCESS Act (HR 3356) in the 112th Congress. Calvert took over the legislation for reintroduction beginning in the 113th Congress.

“HR 241 is a cost-free, common sense piece of legislation that would alleviate the financial burden small businesses are facing, while still fulfilling the purpose of the ADA,” Calvert testified. “Without question, we must ensure that individuals with disabilities are afforded the same access and opportunities as those without disabilities. Frivolous lawsuits do not accomplish any goal.”

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