Currently, many commercial and privately-owned facilities including various hotels, restaurants, retail merchants, golf courses, private schools, health clubs, sports stadiums, movie theaters, and are all looking to establish their own unique appeal to grab the attention of their potential consumers. However, one thing they all have in common is the certainty that at any given moment they are at risk of being hit with an unanticipated lawsuit filed under The Americans with Disabilities Act (“ADA”).

The Americans with Disabilities Act (ADA) 

Became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public accommodation. This law was enacted to ensure individuals with disabilities have the same public accommodation and equal opportunity provided for them as everyone else. The ADA is divided into five titles (or sections) that relate to different areas of public life.  Although typically a community association is not subject to the ADA, a homeowners association or condominium association that holds itself out to the public with short-term leasing of its units or use of its facilities may be subject to the ADA.

Title III   

Also known as Public Accommodations, this section sets forth the minimum standards that must be provided by facilities to achieve accessibility for individuals with disabilities. This includes alterations and new construction as well as removal of any barriers in existing buildings when it is possible to do so without too much difficulty or expense. Title III directs businesses to make “reasonable modifications” to their standard ways of carrying out operations when serving people with disabilities. It also requires that they take necessary steps to communicate effectively with consumers who may experience vision, hearing, and speech disabilities.  This title is regulated and enforced by the U.S. Department of Justice. 

Pros and Cons   

Despite the overall positive impact of the Americans with Disabilities Act of 1990 on the lives of Floridians and visitors to the state, an inadvertent outcome has been detrimental to a series of frivolous lawsuits filed under the ADA aimed primarily at piling up attorney and expert-witness fees against Florida businesses and property owners. Over the last five years, more than half of the 6,000 lawsuits filed were filed by just 12 plaintiffs.

In a pioneering effort to end the high volume of lawsuits filed the Florida House Bill 727, codified as Florida Statute Section 553.5141, effective July 1, 2017, which encourages compliance with the ADA while providing courts the ability to reject the attorney’s fees and costs awardable in ADA cases.  

New Florida Law Helps Businesses

The new law provides guidance to businesses and property owners alike and enables them to take substantive preventative measures to help potentially defeat or limit frivolous barrier-to-access lawsuits as well as minimize their exposure to attorney’s fees and costs. Businesses, community associations, and property owners are well-advised to consult with highly qualified legal counsel to certify their compliance with the ADA’s provisions or adopt appropriate remediation plans, which should act to discourage the chance of being targeted for lawsuits. The new law allows business owners to hire a qualified expert to inspect their property and issue a conformity certificate or provide a remediation plan.

Attempts to Curb Title III ADA Claims

Conformity compliance certifications and remediation plans may be issued and obtained by experts in the ADA Standards for Accessible Design for Title III of the ADA. The state’s Department of Business and Professional Regulation’s (“DBPR”) website will now maintain a publicly accessible website to serve as a registry for all certifications and remediation plans that it receives. The filing of the remediation plan or certification of conformity with the DBPR puts the public on notice that such businesses are in compliance with Title III of the ADA or are actively making reasonable efforts to come into compliance with Title III of the ADA.  It is important to seek legal guidance to determine whether your community association may be subject to the ADA, and if so, whether a conformity compliance certification and remediation plan should be obtained to limit the association’s exposure to ADA frivolous lawsuits.