The Americans with Disabilities Act (“ADA”) was enacted by Congress in 1990 to protect individuals with disabilities from discrimination in access to employment, governmental services and programs, public accommodations, transportation, and telecommunications. As stated in the law, the ADA is “an Act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.” Recently, the ADA has been in the news due to certain lawyers and claimants abusing the system. As a result, Federal and State laws are being actively evaluated for reformation. In response, the Florida legislature has passed a new law aimed at curbing Title III ADA claims, allowing business and property owners to take preventative measures to protect themselves from frivolous claims.
Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. Title III of the ADA mandates that businesses and non-profit service providers must provide individuals with disabilities full and equal enjoyment of the facilities and accommodations, including specific requirements related to architectural standards. Florida has incorporated the ADA accessibility requirements in the Florida Americans with Disabilities Accessibility Implementation Act.
The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin – and Section 504 of the Rehabilitation Act of 1973 — the ADA is an “equal opportunity” law for people with disabilities. To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
ADA lawsuit abuse occurs when plaintiffs abuse the legal system by filing multiple lawsuits seeking ADA relief. A common example of this is where a person or persons visit many different business establishments with the intention of identifying ADA violations (such as a lack of handicap parking spaces, inaccessible bathrooms, or no wheelchair ramps). Once they identify a potential violation, they may then attempt to sue the business establishment for injuries. In some cases, the person doesn’t even enter the business establishment—they may simply drive by the place, looking for violations outside or in the parking lot. They can target many businesses at a time, and seek to collect a large sum of money from the different businesses involved.
Across the country, the laws are beginning to change to curb this type of behavior. Many states and local municipalities have become aware of the phenomenon of widespread ADA lawsuit abuse. As such, some areas have adjusted their ADA policies to address the issue of lawsuit abuse. For instance, some states have raised the minimum amount that a person must be claiming for filing an ADA lawsuit. This would subject business owners to less lawsuits if the plaintiffs were not subjected to extraordinary expenses. Other states have required that the plaintiff be responsible for the defendant’s legal fees if they lose the lawsuit. This has often served as a deterrent in order to discourage persons from filing lawsuits that have no basis or that have a low likelihood of success in court. In 2017, Florida chimed in to address the issue.
2017 Florida legislation
In response to a statewide glut of frivolous ADA related lawsuits which are drastically and disproportionately affecting small businesses, the Florida legislature created new laws aimed at restraining frivolous lawsuits.
The new statute enables businesses and property owners to take substantive preventative measures to help to insulate themselves from the most frivolous claims. Under the law, a business or property owner may retain a qualified expert to conduct an inspection of their property. If the property is found to be in compliance with the ADA, the expert may issue a certificate of conformity that includes the date of inspection, proof of the expert’s qualifications, and a statement confirming that the property is in conformity.
For properties that are not found to be in compliance, the owner may develop and submit a remediation plan approved by a qualified expert indicating that the property will be brought into conformity within a specified time period. The plan must detail the proposed remedies for the deficiencies, and it must state when the remediation will be initiated and completed, which must be within 10 years. This extended time frame will enable businesses to control the timing and cost of their remediation measures, as they will be able to implement the changes in conjunction with any planned future renovations or remodeling projects.
The compliance certifications or remediation plans may be filed with the state’s Department of Business and Professional Regulation, which will now maintain a publicly accessible website to serve as a registry for all of the certifications and remediation plans that it receives. Importantly, a remediation plan in existence before an ADA lawsuit is filed will typically serve to moot such a suit.
The certification must include:
- The date on which the place of public of accommodation was inspected;
- The name of the qualified expert person who inspected the place of public accommodation;
- Proof of qualification as an expert, including a license number or a sworn statement indicating the person has at least one order by a federal court accepting a remediation plan of the qualified expert in a settlement agreement or at least one order by a federal court accepting the qualified expert’s testimony related to Title III of the ADA; and
- A statement in writing by the qualified expert attesting that the information contained in the certification of conformity is complete and accurate.
Once properly filed with the DBPR, the certificate of conformity is valid for three (3) years after the date of issuance.
The remediation plan for non-compliant properties must include:
- The date on which the place of public of accommodation was inspected;
- The name of the qualified expert who inspected the place of public accommodation;
- Identification of specific remedial measures that the place of public accommodation will undertake;
- The anticipated date of initiation and completion for each remedial measure that the place of public accommodation has agreed to undertake;
- Proof of qualification as an expert, including a license number or a sworn statement indicating the qualified expert has at least one order by a federal court accepting a remediation plan of the qualified expert in a settlement agreement or at least one order by a federal court accepting the qualified expert’s testimony related to Title III of the ADA; and
- A statement in writing by the qualified expert attesting that the information contained in the remediation plan is complete and accurate.
While the new law does not prohibit plaintiffs from filing ADA public accommodation lawsuits, it does require courts to “consider any remediation plan or certification of conformity filed by a place of public accommodation with the DBPR before the filing of the plaintiff’s complaint, when the court considers and determines if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to attorney fees and costs.” This provides businesses and property owners an opportunity to overcome, or at least inhibit, these ADA lawsuits by showing their intentions of avoiding this lawsuit and greatly limiting an unscrupulous Plaintiff’s attorney’s ability to claim attorney’s fees and costs for the frivolous lawsuit. It would be wise for Florida businesses to obtain their ADA qualified expert inspection and review the language of Florida Statute 553.5141.