Are you at risk of being sued for violations of the Americans With Disabilities Act or the Florida Accessibility Code?
Most property owners and managers are aware of the Americans with Disabilities Act (ADA), 42 U.S.C. s. 12182, but the sheer number of lawsuits brought against property owners reveals compliance with the law is still lacking. Title III prohibits discrimination based on disability in the activities of places of public accommodations such as restaurants, movie theaters, schools, daycare facilities, recreation facilities, medical facilities, transient lodging (including Airbnb-type rentals), factories, warehouses, office buildings, public transportation, and retail facilities.
In 2010, Title III was revised to include pools and spas, fishing piers, golf courses (to include miniature or putt-putt), amusement rides, boating facilities, exercise machines, play areas, saunas, steam rooms, and shooting facilities/gun ranges. Businesses with websites should also be aware that their website must meet accessibility requirements. Currently, about 20% of all Federal lawsuit filings for ADA violations are based on inaccessible websites.
Florida Building Code (FBC)
The State of Florida first adopted ADA in 1993 which made adherence to the standards mandatory in 1997. Florida Building Code (FBC) incorporated the ADA and created the Florida Accessibility Code as Chapter 11 of the FBC in 2002. Many property owners are surprised to learn of their liability for not complying with the ADA when their building was approved for construction or remodeling by a building department. Frankly, most building departments do not have ADA Plans Examiners on staff, and many delegate the responsibility to comply with ADA to the design professional. We can attest that many design professionals are also not competent in the ADA standards.
The US Department of Justice (DOJ) regulates the Americans With Disabilities Act and while individual states may exceed the standards outlined by the DOJ, none may approve lower standards or waive any standard published by the DOJ. No buildings are “grandfathered”– your building must comply. The Florida Building Code is updated every three (3) years and may be amended annually to incorporate interpretations and clarifications while the Florida Accessibility Code is based upon federal law that does not make frequent changes.
Property Owners & Managers Be Aware
Property owners/managers should understand if you are sued for violating the ADA, almost without fail, the suit is based on the 2010 ADA Standards for Accessible Design and not a violation of the Florida Building Code although that may also apply. It’s one thing to be code non-compliant and quite another to be in non-compliance with United States civil rights legislation. Often, if the facility is in non-compliance with the DOJ standards, it is also in non-compliance with the Florida Accessibility Code included in Chapter 11 of the Florida Building Code.
Property owners/managers should also be aware the DOJ may assess fines for being in non-compliance with the ADA standards. Federal law allows up to $75,000 for the first violation and $150,000 for additional violations. State and local governments may also impose additional fines. Losing an ADA lawsuit has the potential to be costly and most likely any penalties could not be discharged in bankruptcy. Remember, ADA violations are “civil rights” violations.
There are basically two standards building owners should be aware of; the 1991 Standard and the 2010 Standard.
If your building was constructed or altered before March 15, 2012, and your building is in full compliance with the 1991 Standards, your building falls within the Safe Harbor provision and upgrades to later ADA standards are not required. Conversely, if your building does not meet the 1991 Standards, you must now meet the 2010 Standards, regardless of when it was built or altered.
Any modifications to a building after March 15, 2012, must meet the 2010 Standards.
Any building constructed after March 15, 2012, must meet the 2010 Standard.
Even if your building complies with the 1991 Standard (and was constructed before March 15, 2012), the DOJ stipulates your facility must still be “readily achievable” by removing architectural barriers. The DOJ has published a list of 21 different items it considers “readily achievable”. Items on the list include:
- Installing ramps
- Making curb cuts in sidewalks and entrances
- Installing flashing alarm lights
- Widening doors
- Installing accessible door hardware
- Installing grab bars in toilet stalls
- Rearranging toilet partitions to increase maneuvering space
- Insulating pipes under sinks to prevent burns
- Repositioning the paper towel dispenser
- Installing an accessible paper cup dispenser at an existing inaccessible water fountain
Certifications of Conformity and Remediation Plans
The State of Florida enacted Florida Statute 553.5141 on June 23, 2017, entitled, Certifications of Conformity and Remediation Plans. Under this law, an owner of a building that meets the Title III definition of a place of public accommodation can have a survey performed to create a remediation plan. The remediation plan will outline all areas that are deficient and propose a timeline for correction (not to exceed ten years). Once filed, this statute provides relief against frivolous lawsuits while giving property owners time to plan, budget, and construct barrier removal plans. In the event a plaintiff files a suit against you, a court must consider any remediation plan filed before approving a plaintiff’s complaint. This is a realistic method for dealing with accessibility compliance and creating a blueprint for your business to remain unfettered by serial lawsuit filers.
Florida Statute 553.5141 outlines the qualifications required to be a “Qualified Expert” to file a Certification of conformity and remediation plan with the State of Florida and any property owner/manager should ensure any consultant they hire meets or exceeds these requirements.
Suing for ADA Violations
In 2021, nearly 12,000 lawsuits were filed in the State of Florida for violation of the ADA, and many more were settled, prior to filing, following a Pre-Suit Demand Letter. Property owners should be aware almost anyone can sue for ADA violations, and they do. Many business owners are targeted by attorneys specializing in “pre-suit demands” for ADA violations and very often, property owners settle as a cost-benefit to defending a suit they may not win. We find many property owners are targeted multiple times.
We can assure you, in almost every case, the cost to settle one, pre-suit demand will greatly exceed the cost to have your facility surveyed for ADA compliance. If your facility serves the public in any capacity, you should have it surveyed and if needed, have the consultant file a remediation plan with the State of Florida. It is your best protection against being sued for non-compliance.
Property360 Can Help!
Hiring an ADA consultant who is uniquely qualified is important. Your consultant should be qualified as an ICC Accessibility Inspector, Accessibility Plans Examiner, and a Certified General Contractor or Licensed Engineer/Architect and have documented experience with client references. The staff at Property360 has the qualifications and experience you need to bring your facility into compliance.
Property360 provides ADA accessibility site surveys, plans examination, remediation plans, construction oversight, and general consulting to a diverse range of property owners across the USA. Our clients have included national theme parks, hotel/motels, restaurants, high-rise buildings, industrial facilities, shopping centers and strip malls, retail stores, government and health care facilities, and historic properties. We also consult with attorneys defending Title III cases.
Don’t wait until there’s a compliance lawsuit on your doorstep. For property condition assessments or other commercial property services, contact Cynthia Chandler at (904) 606-1570 to discuss your facility needs.