Florida Law Seeks to Curb Abusive ADA Drive-By Lawsuits

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Effective July 1, 2017, Florida House Bill 727, codified as Florida Statute Section 553.5141, is a pioneering effort by the state of Florida to encourage compliance with the Americans with Disabilities Act (“ADA”) while providing courts with the ability to reject the attorney’s fees and costs awards provided for in the ADA.  The law takes aim at the high volume of lawsuits initiated by unscrupulous plaintiffs and lawyers with the primary intent of generating attorney’s fees and profits rather than improving the accessibility of public facilities.

The law allows the property owner to request that a qualified expert inspect a property for conformity with the ADA.  If the expert determines that the property is in compliance, the expert’s certification of conformity may be filed with the Department of Business and Professional Regulation (the “Department”).

If the property is not in conformity, the law allows for a remediation plan approved by a qualified expert to be filed with the Department detailing the plans to bring the property into conformity with the ADA.  The filing of either a certificate of conformity or a remediation plan with the Department “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.”

Importantly, the law also provides protections for businesses that have filed a remediation plan with the Department – “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.”  See also Kallen v. J.R. Eight, Inc., 775 F. Supp. 2d 1374 (S.D. Fla. 2011).  It must be noted that this state law does not prohibit the filing of an ADA claim in federal court.  While the full impact of the law is difficult to predict, it appears to create a mechanism to reduce the incentive for drive-by lawsuits while preserving the intent of the ADA.

 

If you have any questions or concerns on how this may impact your business practices or have any other questions please contact your labor and employment counsel at Smith, Gambrell & Russell.