Call it a crippling epidemic for Florida business owners, so called ADA “testers” who drive by businesses only to drive up lawsuits that allege noncompliance.
But nearly six weeks after a new law took effect in Florida giving thousands of business owners in the state the power to fight back, we’ve discovered the law is still being implemented and not ready for business owners to use if they're sued for violations of the Americans with Disabilities Act (ADA).
“I fight these constantly,” said Bill McKnight, President of Florida Automated Petroleum, a Brandon-based company that leases and owns hundreds of gas stations across the state.
McKnight is served lawsuit papers once a month. This month is busier.
“Just before you got here, I got hit with another one. What can I tell you?”
The new law is supposed to allow business owners the chance to voluntarily hire a state-recognized ADA expert who evaluates a business for ADA violations. Once that evaluation is complete, the expert can create a remediation plan for the business owner to fix violations within a reasonable time frame. The plan can then be registered with Florida's Department of Business & Professional Regulation and serve as proof the business is working to comply ADA regulations.
The law officially went into effect July 1 but South Florida business owner Isabel Del Pino learned the hard way that the law isn’t usable yet. She sent us an email after being served with lawsuit papers alleging her restaurant, Puerto Vallarta Restaurant, violated the Americans with Disabilities Act.
"I contacted the DBPR (Department of Business & Professional Regulation), none of them are aware of Bill 727," she wrote. "They sent me to the handicap department and they don’t know about it either. They sent me to the building department of Miami-Dade and they also don’t know about it. I wish I was making this up. How frustrating,” she wrote.
Three days after we asked the state questions, the Department of Business and Professional Regulation (DBPR) responded. A spokesperson told us, "The Department is working on the bill implementation."
State Representative Tom Leek (R-Daytona Beach) introduced the law and got it passed earlier this year with bi-partisan support. Representative Leek even received a distinguished advocate award for his work on it.
“When you have a law that is multi-layered and this one is multi-layered it will take some time to get that law implemented. That's how it works,” he explained when we met up with him in Orlando moments after receiving his Distinguished Advocate Award from the Florida Chamber of Commerce.
In the case of Florida’s new law to combat excessive ADA lawsuits, the DBPR needs to revise its website so businesses can register their ADA remediation plans and learn more about how they can protect themselves from serial ADA filers. Funds associated with turning the bill into a useable law aren't available until the bill becomes effective even if it hasn't be implemented. It's a process that's typical in government.
Since 2013, the number of Title III ADA suits filed in federal court has risen by 138 percent. In 2016, Florida ranked second in the nation for Title III ADA suits with 1,663 lawsuits, which is a 103 percent increase from 816 lawsuits filed in 2013
It's a law that could have helped business owners like Bill McKnight who will likely settle the two ADA lawsuits filed against him this week.
He acknowledges that some of his stations have ADA violations but maintains when he’s served with a lawsuit he fixes the ADA violations and settles the case. “It’s costing me $3000-$5,000 per month here in the state of Florida,” he said.
McKnight didn’t know about the new law.
”I didn't know about it but now that you told me we're going to try it.”
Sorry Mr. McKnight. According to the state, you'll have to wait at least a few more weeks.
"Help is on the way, hold tight," said Representative Leek.
Read more about House Bill 727 and how it protects business owners from frivolous ADA lawsuits while it also encourages businesses to become ADA compliant: https://www.flsenate.gov/Session/Bill/2017/727/BillText/er/PDF
What FL business owners can do now:
- Hire a qualified ADA like a licensed engineer, certified general contractor, certified building contractor, a licensed building inspector. You can read more about who the state defines as a qualified expert by reading the bill above.
- Have that expert conduct an ADA evaluation on your business
- Work with your expert to create remediation plan so when the DBPR website is updated you can file your plan and get the protection of the law.
Once the DBPR's website is available to business owners, the state will work with the FL Restaurant & Lodging Association, the Chamber of Commerce and the Retail Federation to help spread the word about the law.
Watch our previous coverage on Florida’s serial ADA plaintiffs: