Florida has been one of the busiest states in the country when it comes to ADA lawsuits.
As a result, and in order to support the State’s business community, last year the Florida legislature enacted a law to protect business owners who are acting in good faith to make their properties accessible to the disabled.
House Bill 727, which became law in 2017 but remains relatively unknown and unused, creates a system whereby property owners are able to have their properties inspected by a qualified inspector. Once inspected, the findings are then submitted to the Department of Business and Professional Regulation (“DBPR”).
The property assessment report can then form the basis for a good faith defense in response to allegations of non-compliance with ADA requirements.
The assessment report, as prepared by an individual who meets the standards of a “qualified expert” under the law, can either be submitted to the DBPR as a “certificate of conformity” or as a “plan for remediation”. A certificate of conformity represents that the place of public accommodation “conforms to Title III of the Americans with Disabilities Act” and such report is valid for three (3) years after the date of issuance. If the expert files a remediation plan, the report acknowledges that a place of public accommodation does not conform to Title III of the Americans with Disabilities Act but that the property owner plans to remedy the condition. Any such remediation plan submitted to the DBPR must include a remediation plan to fix known deficiencies within a “reasonable amount of time, not to exceed 10 years”.
Pursuant to the statute “An owner of a place of public accommodation may file a certificate of conformity or remediation plan with the department. Such filing 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 law further provides that “The department shall develop and maintain a website, accessible to the public, which provides an electronic registry of certifications of conformity and remediation plans.”
Ultimately, once the reports are filed and available on the public website, the statute calls for consideration by the court for the business that has made such a filing. Specifically the statute states as follows: “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.”
Essentially, the hope and goal of the statute is that if a business complies, they will be protected under the law to avoid the imposition of attorneys’ fees in ADA lawsuits.
Typically, if no attorneys’ fees will be awarded, it is unlikely that a plaintiff’s lawyer will pursue the claim. This statute should, if used properly, stem the tide of ADA filings in Florida.
A few issues have been raised with the law to challenge its true effectiveness.
The first is that HB 727 is only a state law and therefore cannot necessarily preempt most ADA cases which are filed in federal court. While this is true, the state filing could always be used by lawyers defending the claims to demonstrate good faith behavior by the defendant property owner.
Additionally, opponents charge that the new law does not create a bar to any future lawsuits, but simply a defense to avoid attorneys’ fees. While this is also true, there currently exists no true method under federal law to stop ADA cases from being filed. This is at least one way to limit the potential damages from such a claim.
Lastly, the issue has been raised that since the law was written prior to the cases that were decided about ADA accessibility for websites, the law cannot be used to defend against those cases. Although the law was written to only address physical barriers to access, it is reasonable to argue that the law should equally apply to the issue of virtual websites. In other words, in the same way that the ADA has been extended from physical issues to virtual ones, the Florida law should also be interpreted to include protection relating to both physical and virtual access claims.