Seyfarth Synopsis: A new Ohio law will require notice and opportunity to cure as a prerequisite for a plaintiff’s recovery of attorney’s fees in physical accessibility lawsuits.

Businesses across the country have been asking Congress to provide some relief from ADA “drive by” and “gotcha” lawsuits about physical access barriers at public accommodations facilities. Federal efforts to amend the ADA stalled early in 2018, but a new Ohio law may provide businesses in that state with some advance notice and an opportunity to cure physical access violations before being held liable for paying the plaintiff’s attorney’s fees – at least under Ohio accessibility laws.

In 2018, the U.S. House of Representatives passed the ADA Education and Reform Act of 2017, H.R. 620, which would have prohibited a plaintiff from filing a federal ADA lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them. H.R. 620 gained no traction in the U.S. Senate, however.

Ohio Governor Kasich recently signed House Bill 271, which will require a plaintiff, to be eligible for attorney’s fees, to provide a notice of an alleged accessibility law violation in advance of filing a civil action. After serving notice, the plaintiff cannot file a lawsuit until the property owner or responsible party fails to respond or fails to remediate the violations under certain conditions and in certain time frames. A plaintiff who provides notice but fails to allow the defendant opportunity to remediate the property as specified in the bill may forfeit entitlement to attorney’s fees, as specified in the bill. That said, a plaintiff who does not provide notice may still be able to recover fees if the trial court determines attorney’s fees are appropriate due to the nature of the violations.

House Bill 271 says it applies to alleged violations of Ohio and federal accessibility laws (except housing discrimination), but since no state law can affect the remedies and procedures available under the federal ADA, it will not impact the recovery of attorney’s fees in ADA lawsuits. Time will tell as to whether this legislation will cause a decrease in the number of physical accessibility lawsuits filed in Ohio, but we remain skeptical.