PAY ATTENTION, FLORIDA BUSINESS OWNERS! WHAT FLORIDA BUSINESSES SHOULD KNOW ABOUT PROTECTING THEMSELVES AGAINST ADA CLAIMS


On July 1, 2017, Florida Statutes section 553.5141 came into effect and will potentially assist business owners in defending themselves against lawsuits for alleged violations of Title III of the Americans with Disabilities Act (“ADA”). Here is what Florida business owners should know if they intend to reap the benefits of this law.

Title III of the ADA prohibits discrimination on the basis of disability in businesses that are generally open to the public (such as restaurants, movie theaters, offices and commercial facilities) and requires them to comply with ADA Standards. Otherwise, a business owner can be subject to a lawsuit by a person suffering from a qualified disability, if the person has been denied access to the business’ facilities. Under section 553.4151, an owner of a place of public accommodation can attempt to avoid an ADA lawsuit, or mitigate its damages if one is filed, by requesting that a qualified expert inspect the owner’s facility to determine if it is ADA compliant. Depending on the qualified expert’s findings, he/she may prepare a certificate of conformity or a remediation plan.

If a certificate of conformity is prepared, it must indicate that such place of public accommodation conforms to Title III of the ADA. The certificate of conformity is valid for three years after the date of issuance and may be filed with the Department of Business and Professional Regulations. Any certificate of conformity filed with the Department of Business and Professional Regulations must include the date the place of public accommodation was inspected and the name of the qualified expert or any other person who inspected the place of public accommodation, proof of the expert’s qualification, in accordance with the statute, and a statement in writing by the expert attesting that the information contained in the certificate is complete and accurate.

If the property is not in compliance with Title III of the ADA, but the business owner plans to conform to Tile III of the ADA within a specified time period, the expert may prepare a remediation plan and can submit that plan to the Department of Business and Professional Regulations. Any plan submitted to the Department of Business and Professional Regulations must include a remediation plan to remedy the deficiencies, which includes a reasonable amount of time, not to exceed ten years, in which the plan must be completed. In addition, the plan must include the date the place of public accommodation was inspected; the name of the qualified expert or other person who conducted the inspection; identification of the specific remedial measures that the business owner will undertake, the anticipated date of initiation and completion date for the modifications that will be undertaken; proof of the expert’s qualification, in accordance with the statute, and a statement in writing by the expert attesting that the information contained in the remediation plan is complete and accurate.

Pursuant to the statute, the Department of Business and Professional Regulations is required to maintain a website accessible to the public which serves as an electronic registry of the certifications of conformity and remediation plans filed by business owners.

YOU COMPLIED WITH SECTION 553.5141, NOW WHAT?

If a lawsuit is brought in Florida against you as a business owner for violation of Title III of the ADA, after you have fully complied with section 553.5141 and filed a certificate of conformity or a remediation plan with the Department of Business and Professional Regulations, then the court must consider any remediation plan or certificate of conformity filed before the filing of the complaint, when it considers and determines if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to attorney’s fees and costs. Accordingly, while the statute does not prevent a lawsuit from being filed against you for alleged violations of Title III of the ADA, it may protect you from having to pay the Plaintiff’s attorney’s fees and costs. Moreover, a remediation plan that is in effect before a Title III ADA lawsuit is filed may serve to moot the lawsuit.

If you are a business owner or operator and have questions about the ADA, please contact an attorney at Maspons & Sellek, LLP. We would be happy to discuss your specific needs.

 


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