Many lawsuits have been filed in Florida under Title III of the Americans with Disabilities Act. These lawsuits seek to close non-compliant businesses, or require building and interior modifications to make them accessible, along with legal fees. With the recent passage of Florida Statute 553.5141, however, Florida businesses now have an opportunity to help insulate themselves against these types of lawsuits.
Title III of the ADA prohibits “discrimination” on the basis of disability in “places of public accommodation.” Generally, any business open to the public is a place of public accommodation. Discrimination under Title III includes not having enough wheelchair suitable tables and counters, not having grab bars in toilets, uneven door thresholds, ramps without handrails, etc.
However, where a business has a pre-existing – even incomplete – plan to make its premises accessible and has taken steps to implement that plan, the business can generally force the immediate dismissal of a Title III lawsuit – without paying any legal fees. In some instances, the business can recover, from the Plaintiff’s attorney, its own legal fees incurred in forcing dismissal of the lawsuit.
Florida Statute 553.5141 enhances this defense by allowing a business to hire a “qualified expert” (i.e., an architect, general contractor, interior designer, etc.) to inspect a business, identify needed accessibility modifications, and publicly file a remediation plan with the Department of Business and Professional Regulation specifying the planned modifications and a time frame within which they will be made. Once filed, the publicly filed remediation plan is notice to any lawyer seeking to file a Title III lawsuit that the business is already undertaking required accessibility modifications and that, therefore, the Title III lawsuit is not only unnecessary, but frivolous – such that the business may be able to recover its legal fees.
Florida businesses should seriously consider hiring a qualified expert, in consultation with an attorney, to preserve privileged communications with the expert, as well as create and file a remediation plan. By voluntarily undertaking remediation efforts before being sued, businesses will control the timing and cost of remediation. For example, a business can time the remediation to coincide with a planned future comprehensive remodeling or re-branding of the property.