Effective July 1, 2017, Florida House Bill 727, also known as the Accessibility of Places of Public Accommodation Act (“APPAA”), will be codified in Florida Statutes, under the Florida Americans With Disabilities Accessibility Implementation Act at Section 553.5141 (Certification of conformity and remediation plans).

The Intent Of The New Law

The intent of the bill was to address the large amount of Title III ADA lawsuits mostly filed by serial plaintiffs against private sector businesses claiming alleged barriers to access to certain businesses or other places of public accommodation. These lawsuits are sometimes referred to as “drive-by lawsuits” because so many of them are filed at once by the same plaintiff and plaintiff’s counsel using cookie-cutter complaints to allege a litany of alleged ADA violations. Ostensibly, these ADA lawsuits are supposed to improve accessibility for the disabled by enjoining violators and requiring them to remove the alleged barriers; but, judging by the sheer volume of cases filed (mostly by the same plaintiffs and plaintiffs’ counsels), most appear to be driven by the award of attorney’s fees and costs provided for in the ADA.

The APPAA was designed to provide courts with the tools necessary to reject attorney’s fees and costs awards to these professional plaintiffs. Specifically, the new law is intended to provide guidance to private sector businesses by allowing businesses to undergo a voluntary self-evaluation by a “qualified expert” and then implement a remediation plan that is registered with the State of Florida to make the business ADA compliant.

The Requirements Of The New Law

According to APPAA, any nongovernmental business can voluntarily hire a “qualified expert,” as defined by Section 553.5141(1)(d)(1-10), Fla. Stat., to inspect its facility for ADA compliance. Once that inspection is performed, the business may then submit a certification of conformity that complies with the requirements of Section 553.5141(2)(a)(1-4), Fla. Stat., to the Department of Business and Professional Regulation (the “Department”). This certification of conformity would then be valid for a period of three (3) years from the date of issuance.

Oddly, however, it does not appear from the plain language of the statute that the “qualified expert” must first determine that the subject facility conforms with the requirements of Title III of the ADA in order for the certification of conformity to be filed and there does not appear to be any requirement that the certification of conformity state that the facility actually complies with the requirements of Title III of the ADA. While actual conformity with the requirements of the ADA may have in fact been the intention of lawmakers, Section 553.5141(2)(a), Fla. Stat., (particularly when read together with Section 553.5141(3), Fla. Stat.) does not make this clear, which, of course, leaves this section open to interpretation. As a result, it will be interesting to see how Courts ultimately interpret this section of the law.

A business can also voluntarily hire a “qualified expert” and then submit a remediation plan with the Department that indicates that such place of public accommodation plans to conform to Title III of the ADA within a specified time period not to exceed 10 years. There also appears to be some confusion here as well because Section 553.5141(2)(b), Fla. Stat., goes on to provide that “[a]ny remediation plan submitted to the [D]epartment that indicates that a place of public accommodation does not conform to Title III of the Americans with Disabilities Act, must include a remediation plan [which complies with the requirements of Section 553.5141(2)(b)(1-6), Fla. Stat.] to remedy the deficiencies within a reasonable amount of time [not to exclude 10 years], in which the plan must be completed.” Section 553.5141(2)(b)(1-4), Fla. Stat. (emphasis added). This begs the question: why would a business choose to submit a remediation plan in the first place unless its facility did not meet the requirements of Title III of the ADA? It seems that the remedial plan option was developed for businesses that submitted to the inspection and that inspection determined that facility did not comply with the requirements of the ADA. However, this is not clearly communicated by the plain language of the statute.

It appears then that any business which volunteers to submit to an ADA inspection has a choice of either filing the certificate of conformity or the remediation plan which is meant to put the public on notice that the facility either complies with Title III of the ADA or is making reasonable efforts to comply. The Department is required to develop a website that is accessible to the public that will act as a public registry of certifications of conformity and remediation plans.

Finally, the new law provides that:

In any action brought in this state alleging a violation of Title III of the Americans with Disabilities Act, 42 U.S.C. s. 12182, a court must consider any remediation plan or certification of conformity filed in accordance with this section by a place of public accommodation with the department 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.

Section 553.5141(5), Fla. Stat. (emphasis added).

To be clear, the new law is completely voluntary for businesses. This means that no Florida business is required to hire a “qualified expert”, submit its facility to an ADA compliance inspection, and/or file a certification of conformity and/ or a remediation plan.

While at first blush, the APPAA appears to be a pro-business initiative, there are some very important procedural and practical considerations that need to be addressed before a business submits itself to the voluntary inspection. To find out more about if the APPAA is right for your business, please contact Anastasia Protopapadakis from GrayRobinson’s Miami office or the GrayRobinson attorney with whom you have a relationship