Though the Americans with Disabilities Act (ADA) was created to curb discrimination against persons with disabilities, unintended complications bleed businesses of valuable time and money.
A small sector of the legal community has created a cottage industry of ADA litigation by representing a subset of plaintiffs suing businesses on the theory that the physical layout of said business does not comply with the public accommodation regulations.
For Florida businesses, this means thousands of dollars in legal fees for what in many cases may amount to an inconsequential violation of public accommodation regulations. In an effort to protect businesses from expensive and theoretically unnecessary litigation, the Florida legislature passed and signed into law HB 727—the Accessibility of Places of Public Accommodation Act (APPAA)—on June 23, 2017.
The APPAA was designed so that a business could secure an expert’s certification that the facility in question would soon be in compliance with ADA regulations if it weren’t already in lieu of lengthy litigation. Essentially, once this certification is obtained, the court could rely on it to reduce or eliminate any claim for attorneys’ fees and costs.
Unfortunately, HB 727 lacks the pull it needs to accomplish its purpose since the Supremacy Clause of the United States Constitution controls any conflict between state and federal law.
Specifically, the ADA allows for state laws to provide greater remedies than federal law, but can never limit federal remedies. In this case, the certification path proposed by Florida’s HB 727 would create conflict with an individual’s right to seek remedies under the ADA, which the Supremacy clause prohibits.
Due to this inherent conflict that appears ripe for legal challenge, business and property owners should not view HB 727 as shield from ADA liability, in whole or in part. The best way to ensure compliance with ADA regulations is to make sure structures are up to current building codes.
Moreover, structures built prior to the ADA’s enactment may qualify for one of the exceptions to the public accommodation provisions of the law. As with all good business practices, hire the right architects and builders, make sure they are bonded and insured, and engage in independent engineer to check the work before completing any renovation or new build.
David Shankman and Michael Willats are part ofthe Firm’s Labor and Employment Practice Group. If you have any questions or concerns about this issue or any other matter, please contact us directly at 813-223-1099.