Gould Cooksey Fennell

The Gould Cooksey Fennell Blog



In recent years, our local business community has been hit with a wave of lawsuits by ADA accessibility testers claiming, for example, that the business’s restrooms were not accessible to the disabled and demanding thousands of dollars in damages. We wrote on this topic in August 2016, and Vero Beach’s 32963 publication also published a story.  (click here for our prior blog article).

To be clear, no one is advocating against the right of disabled individuals having access to local businesses.  In fact, not a single business we have assisted in these cases has a problem with that; rather, it is having to defend a lawsuit and spend thousands of dollars without having been given the courtesy of notice that there was a problem in the first place.  Every business we have assisted quickly agreed to make necessary fixes to their establishment to ensure access, but unfortunately, these businesses also had to pay the attorney fees and costs of the plaintiff who brought the lawsuit without any notice.

On February 15, 2018, the U.S. House of Representatives passed a bill called the ADA Education and Reform Act (HB 620) that would impose new requirements on these individuals before they could file a lawsuit.  As it currently stands, these ADA testers, as they call themselves, can file a lawsuit against a business claiming lack of ADA access without giving the business any notice of the deficiency, even if the alleged deficiency did not prevent the person from using the restroom.

In almost all cases, the business agrees to fix the deficiency but still has to pay the plaintiff’s attorney fees and costs, including expert fees for an inspection of the premises.  HB 620 would help alleviate the burden on small businesses by requiring the plaintiff to give notice of the alleged deficiencies and a grace period to fix the issue before a lawsuit could be filed. This bill would also require the Department of Justice to establish a program for educating governments and property owners on how to enhance accommodations for individuals with disabilities.

In other words, HB 620 could be a win-win for both sides of this issue by continuing to ensure proper access for the disabled, while also requiring that the business be given notice and an opportunity to fix the problem before getting served with a lawsuit.

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