New legislation seeks to level the playing field for businesses that have been targeted by “drive-by” claims alleging discrimination by customers with disabilities who may have never even gone to visit the place of public accommodation. Keep your fingers crossed.
Businesses frequently complain about “drive-by” lawsuits. Some courts have lamented the “cottage industry” that seems to have arisen under Title III of the Americans with Disabilities Act, particularly because of the availability of attorneys’ fees, and have suggested that reforms are necessary. Congress seems to have heard that discontent and is working on a solution through the proposed ADA Education and Reform Act of 2017, H.R. 620.
The proposed legislation, originally filed on January 24, 2017, with some bipartisan co-sponsorship, currently is pending for debate before the House Judiciary Committee. It proposes that potential plaintiffs who encounter barriers at “places of public accommodation” be required to provide written notice to the owner or operator of the alleged barriers to access. This notice must state specifically the way in which the person with a disability was denied access to the “place of public accommodation.” The required specificity includes (i) the address of the property; (ii) the specific provisions of the ADA that allegedly were violated; (iii) information concerning whether the plaintiff made any request for an architectural barrier to be removed; and (iv) information regarding whether the alleged barrier is temporary or permanent. After receiving this notice, this legislation would require the owner or operator to respond, within sixty (60) days, to the individual’s statement of asserted barriers by providing a statement outlining the plan to remediate the barriers. For instance, if an individual correctly asserts that the curb ramps are too steep and that there is a lack of accessible parking spaces, the owner or operator must outline how it proposes to correct these issues. Likewise, if the restrooms inside a restaurant do not provide sufficient turning space for persons in wheelchairs, a remediation plan must be provided to correct the violation. After creating the remediation plan, the owner or operator then would have 120 days to either remove the barrier entirely or to “make substantial progress” toward removing the barrier.
The Civil Rights Division of the Department of Justice, using its current funding, would be required to create a program to educate owners and operators of “places of public accommodation” about removing barriers and promoting accessibility. The programs could include training of Certified Access Specialists to “provide guidance of remediation for potential violations of the [ADA].” The proposed bill further sets forth a plan designed to encourage mediation of disputes concerning these issues. The act would become effective within thirty (30) days of its enactment.
The legislation appears geared toward requiring would-be plaintiffs to work with businesses to achieve the necessary access, instead of immediately running to court. Notice and an opportunity to cure would enable willing business owners and operators to address access issues for the disabled more quickly, while avoiding costly litigation.
In addition to the pending federal legislation, effective July 1, 2017, Florida enacted its own legislation, codified at § 553.5141 of the Florida Statutes, designed to assist businesses in fending off potential drive-by plaintiffs. Businesses have the opportunity to receive an inspection of their “places of public accommodation” by a “qualified expert” on accessibility. This “qualified expert,” who can be an architect, engineer, or “[a]ny person who has prepared a remediation plan related to a claim under Title III of the Americans with Disabilities Act” completes an inspection and files a report of such inspection with the Florida Department of Business and Professional Regulation. This report, which is valid for three (3) years after filing, lists whether the “place of public accommodation” conforms to accessibility requirements, and, for any non-conforming elements, the owner may submit a plan of remediation for filing with the state. The owner must specify a timetable for the remediation that is less than ten (10) years. If an owner has taken advantage of this process before receiving notice of an accessibility lawsuit, the statute requires the court to consider these filings in any litigation brought in Florida alleging a violation of the ADA to assess the plaintiff’s good faith and whether attorneys’ fees may be awarded.
Neither the Florida legislation nor the proposed federal legislation specifically mentions whether it will apply to the wave of website accessibility lawsuits filed in the last few years. And, as more courts continue to interpret the ADA to find that websites are “places of public accommodation,” that likewise will be an issue to watch. Stay tuned as legislatures begin to turn the tide on the drive-by, and perhaps the “scroll by,” lawsuits.