Florida Lawmakers Take Action To Curb Access Suits, But Will It Work?

Seyfarth Synopsis: Florida’s recently-enacted House Bill 727 gives businesses a way to deter serial plaintiffs from suing them in Florida courts.

Watching businesses deal with the at least 1,663 ADA Title III access suits filed in federal court in Florida in 2016 motivated Florida legislators to take action with House Bill 727 (“HB 727”) which went into effect on July 1, 2017. One of bill’s sponsors, Rep. Tom Leek, claims that “[t]his law give the ADA back to the people for whom it was written, Americans with disabilities.” We are not quite so optimistic.

Under HB 727, a business that hires a “qualified expert” to inspect its premises to either verify conformity with ADA facilities access requirements, or to develop a compliance plan, can have that information considered in a lawsuit filed in a court within the state of Florida, provided that the certificate of conformity or remediation plan has been filed with the Department of Business and Professional Regulation (the “DBPR”). The court “must consider” any such remediation plan or certificate of conformity “and determine[s] if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to attorney fees and costs.”

Here’s how it would work: An owner of a place of public accommodation pays a “qualified expert” to inspect its premises. If the expert concludes that the facility complies with the ADA, the business can submit a “certificate of conformity” to the DBPR stating that the premises conforms to Title III.  Certificates of conformity are valid for three years and must include: the date that the premises was inspected, the name of the “qualified expert,” proof of the expert’s qualifications, and a statement from the qualified expert attesting that the information contained in the certificate is complete and accurate.

Businesses whose facilities do not fully comply with the ADA can submit a remediation plan to the DBPR indicating that the facility intends to conform with ADA requirements within a reasonable amount of time that does not exceed 10 years. In addition to the requirements applicable to the certificate of conformity, the remediation plan must include the specific remedial measures that the place of public accommodation will undertake, and the anticipated date of completion.

To be a “qualified expert,” one must be a building code inspector, architect, engineer, contractor, or “person who has prepared a remediation plan related to a claim under Title III … that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III … by a federal court.” This means that an experienced defense attorney who has prepared a remediation plan for a court approved settlement could be considered a “qualified expert.”

HB 727 is not likely to have much impact on the number of ADA Title III lawsuits filed in Florida for several reasons. First, the law will likely only apply to ADA lawsuits filed in state court, and most ADA Title III lawsuits are filed in federal court. This is because under the Supremacy Clause of the United States constitution, Florida state’s requirement that a court must consider remediation plans and certifications of conformity are likely preempted by the ADA and will not be applied to a plaintiff’s federal lawsuit. Second, given that HB 727 does not explicitly render an access lawsuit moot just because there is a remediation plan or certificate of conformity on file, businesses will be reluctant to publicize access barriers in their facilities in a publicly-filed document, which plaintiffs can still use to sue them. Third, having a court consider the existence of a remediation plan or certificate of conformity in deciding whether to award a plaintiff attorneys’ fees is not likely to deter plaintiffs who know that defendant businesses will need to spend a lot of money litigating before a court ever considers either of these documents.  Fourth, HB 727 does nothing to address the explosion of website access litigation under the ADA in Florida which has been a key driver in the increased number of lawsuits in the past 12 months. Indeed, as we have previously reported (here and here), California has similar legislation to HB 727, yet California still had approximately 2,468 ADA Title III filings in federal court in 2016 and continues, along with Florida, to be a hotbed for ADA Title III litigation.

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