Responding to the alarming proliferation of lawsuits in Florida alleging that places of public accommodations create barriers to access to disabled patrons, Florida has adopted what appears to be the first law in the country attempting to provide some defense to beleaguered businesses.
The law authorizes qualified experts to inspect places of public accommodation for American with Disabilities Act-compliance purposes and issue a certificate of conformity or develop a remediation plan for the owners. The owners would file the certificate or plan with the Department of Business and Professional Regulation, which would serve as notice to the public of compliance with the ADA.
Title III of the ADA
Title III of the American with Disabilities Act prohibits discrimination against persons with disabilities in places of public accommodation and commercial facilities. Practically all types of businesses that serve the public are covered by Title III. These include restaurants, hotels, theaters, convention centers, doctors’ offices, retail stores, museums, libraries, private schools, health spas, and day care centers. This is the case regardless of the size of the business.
Under the ADA, a plaintiff alleging a business has failed to make the modifications necessary to remove barriers to access can seek only injunctive, or non-monetary, relief. In addition, the ADA allows an award of attorney’s fees to successful plaintiffs. Attorney’s fees, costs, expert fees, and litigation expenses can quickly amount to thousands of dollars.
The provision for fees and expenses has taken a law aimed at improving access to public accommodations and commercial facilities for people with disabilities and turned it into what one federal judge in Florida has decried as a “cottage industry” for attorney’s fees. See Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1282 (M.D. Fla. 2004) (noting “[t]he current ADA lawsuit binge is, therefore, essentially driven by economics — that is, the economics of attorney’s fees”).
Some “professional,” individual plaintiffs have sued business hundreds of times over the past few years alone.
The Need for Solution
The judge in Rodriguez also pointed out that disabled persons are sometimes used as “professional pawn[s] in an ongoing scheme to bilk attorney’s fees” from businesses. Agreeing, another Florida judge stated that “the system for adjudicating disputes under the ADA cries out for a legislative solution.” Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D. Fla. 2004). She also noted, “Only Congress can respond to vexatious litigation tactics that otherwise comply with its statutory frameworks … [because] the existing law encourages massive litigation … [and] the means for enforcing the ADA (attorney’s fees) have become more important and desirable than the end (accessibility for disabled individuals).”
Congress, however, has failed to act. The Florida Legislature has finally taken up the cause in an effort to assist Florida businesses.
The New Law
Governor Rick Scott signed HB 727, which enacts Florida Statute § 553.5141, on June 23, 2017. Under the law, an owner of a place of public accommodation who requests a qualified expert (broadly defined in § (d)(1) of the law) to inspect that owner’s facility may submit the expert’s certification of conformity with the Department of Business and Professional Regulation indicating the place of public accommodation conforms to Title III of the ADA. If the facility does not conform to Title III, the owner, alternatively, may submit an ADA remediation plan.
If the property is compliant with the ADA, the certificate of conformity made by a qualified expert must include the date of inspection, the name of the expert, proof of the expert’s qualifications, and a statement by the expert confirming the conformity of the property.
If the property is not yet in compliance, the owner may submit a remediation plan approved by a qualified expert that indicates the place of public accommodation plans to conform to Title III within a specified time period. The remediation plan must detail how it will remedy any existing deficiencies. It also must state when the remediation will be initiated and completed (in no instance later than 10 years from the adoption of the plan).
An owner of a place of public accommodation may file a certificate of conformity or a remediation plan with the Department of Business and Professional Regulation. That “serves as notice to the public that the place of public accommodation is in compliance with Title III of the Americans with Disabilities Act or that such place of public accommodation is making reasonable efforts to comply with such act.”
The Department will develop and maintain a publicly accessible website that provides an electronic registry of such notices.
The law does not prohibit disabled plaintiffs from filing ADA lawsuits against public accommodations, nor does the law prohibit plaintiffs’ attorneys from seeking fees; such a law would fail, because a state law cannot invalidate a federal law.
However, the law provides that “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.” This codifies existing law holding that remediation plans in existence before an ADA lawsuit is filed moots any such claim.
The Practical Effect
It is too early to know if the new law will make any dent in the proliferation of ADA barrier-to-access cases. However, by creating a website to catalog certificates of conformity and remediation plans, Florida has given business owners a means to defeat or limit such lawsuits and to minimize the fees available to a plaintiff where a remediation or conformity plan is appropriately filed.
Business owners are encouraged to lower the risk of ADA barrier-to-access lawsuits by adopting remediation plans and to post them online, which should discourage plaintiffs’ lawyers from targeting their properties solely to extort attorney’s fees.