Sunday, September 3, 2017

Florida makes a Legislative ADA Change

The Florida Legislature revisited the Americans with Disabilities Act in 2017.

The Americans with Disabilities Act (ADA) is a federal law passed in 1990. It is a bit troubling to me to write that, as I remember when it was "news," and I struggle to accept that was almost 30 years ago. I recall working through ADA complaints associated with a variety of workers' compensation accidents, and the challenges of various worker's returning to work. Most workers' compensation attorneys have at least a rudimentary understanding of the ADA, as it intertwines with the fundamentals of workplace injuries. 

We are persistently amazed by the imagination and ingenuity of medical science. Undoubtedly, there are literal miracles occurring around us and people are today cured of maladies in ways unimaginable not so long ago. But, the fact remains that many people who suffer injuries are not blessed with a recovery to 100%. They improve, they enjoy some remediation of injury, but they do not fully recover. They remain, after reaching maximum medical improvement, with some degree of impairment and/or various restrictions or limitations on activity. And those can be the foundation for requests for accommodation under the ADA. 

The Florida Legislature in 2017 passed CS/CS/CS/HB 727. That is a fair few "CS." It is an abbreviation for "Committee Substitute," which means that when the bill was eventually passed, the content was not identical to what was in the bill when it was filed or introduced. Each time a legislative committee makes a broad change to the bill, essentially by removing the then existing language and "substituting" a new version, it is called a "Committee Substitute." 

A bill may also instead be "amended" by a committee in the legislative process. Those are, generally speaking, less significant changes, and not always labelled with the "CS." So, the name of this bill indicates to us that there were significant alterations in the bill during the legislative session. This bill was passed near the end of the 2017 session and signed by the Governor. It became the law on July 1, 2017. 

The staff analysis of the bill notes that "Under the Americans with Disabilities Act (ADA), individuals with disabilities may sue places of public accommodation including private businesses for alleged violations of the ADA." This is a bit different from the the situation involving an employee of a business, which would be more consistent with ADA intertwining in a workers' compensation claims. In the "public accommodation" setting, a "prevailing plaintiff is entitled to injunctive relief," meaning the court would tell the business to make changes, but is "not entitled to damages for past discriminations."

So, a member of the public might sue a store, restaurant, hotel or other business alleging that some barrier precludes them access as a result of their disability(ies) or impairment(s). The successful suit does not bring monetary damages for the complaining person, but in some instances a court may nonetheless "award attorney’s fees to the prevailing party."

HB727 provides a process that may affect these lawsuits against Florida businesses. It 
Requires courts to consider ADA expert reports to determine if a plaintiff filed a claim in good faith and whether the plaintiff is entitled to attorney’s fees in lawsuits involving alleged violations of the ADA.
As with many legislative actions, there are details and definitions. The bill establishes who is competent as a "qualified expert" to perform evaluations and prepare such "ADA expert reports." The experts include:
engineer, general contractor, building contractor, building code administrator, building inspector, plans examiner, interior designer, architect, landscape architect, or a person who has been recognized by a federal court as an expert in Title III of the ADA or prepared a Title III of the ADA remediation plan accepted by a federal court. 
The process will be administered by the Florida Department of Business and Professional Regulation, the "DBPR." It will build and maintain a database of plans prepared by such experts regarding businesses accused of non-compliance with the ADA. The DBPR database or "registry" will put 
the public on notice that any business that filed a remediation plan or certificate of conformity with DBPR is in compliance with the ADA or is making reasonable efforts to come into compliance.
So, the statute establishes a process by which public accommodations can engage certain experts to evaluate whether their premises are or are not in compliance with ADA requirements for public access. By obtaining such a report, and filing it with the DBPR, the business demonstrates either compliance with the law or shows that it is "making reasonable efforts to comply."  

If the premises are certified as "in compliance," that certificate is "valid for three years after . . . issuance." If a premises is not in compliance, and a remediation plan is filed, there are specific requirements for such plans. One critical point is the plan must specify a "reasonable amount of time" for changes, which cannot exceed 10 years. 

This is likely to lead to a significant volume of "expert" evaluations of Florida businesses. They will be hired to evaluate the ADA compliance status of premesis, and their reports will be filed with the DBPR. Those reports, pursuant to the new law, will be accessible to the public. Thus, any individual who believes a business is not in compliance with the ADA may research whether that business is aware of such compliance issues (by searching the DBPR database). 

A plaintiff who thus is aware that a business knows of some defect or flaw may nonetheless file a lawsuit seeking a court order that a business make changes to comply with the ADA. However, the court might determine that such a lawsuit, because the flaw is already identified in a report on file with DBPR, and being addressed, is not in "good faith," and might deny or constrain attorney fees payable by the business to the plaintiff. 

Of course, there will be some implementation period. DBPR is unlikely to have this database or process in place today. But, the law provided funding to perform the DBPR work necessary. There will be programming to write, and likely hardware to procure. While the implications of HB727 are not a direct impact on workers' compensation, and the worker's return to work, it will perhaps positively impact those impaired workers, and all who suffer restrictions or limitations. 

Businesses may be more aware of accessibility issues, through the evaluations and reports of their experts. That awareness may benefit all who suffer disability. Businesses may become more accessible through the remediation that is recommended in those reports filed with DBPR. Improvement may occur, to the benefit of many, without the delay, expense, and emotional investment required for litigation. 

Some complain that the ADA lawsuits were a fee-making endeavor that hurt business. Others may complain this law merely shifts the beneficiaries from lawyers to "experts."

Time will tell the overall impact of HB727. It is an interesting idea, which passed both Florida chambers with unanimous support. When a bill passes unanimously, it is likely that a great deal of discussion has occurred, many perspectives have been appreciated and accommodated, and that its success can be reasonably anticipated. But, time will tell what affect this new law accomplishes. 


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