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Florida Chamber Warns Businesses about ADA Suits
September 27, 2015
Source: Daytona Beach News-Journal, FL
Small business owners in Volusia County [Florida] need to be alert about how a law designed to help [people with disabilities] could land them in an unexpected lawsuit, according to the DeLand Area Chamber of Commerce.
Owners of a handful of beachside restaurants have been surprised recently by lawsuits filed against them for violations of the Americans with Disabilities Act [ADA], said Nick Conte, executive director of the DeLand Chamber. In the scenario, a “tester” enlisted by an attorney visits an establishment without the owners knowledge, finds a violation and then files a lawsuit in federal court, Conte said.
Under the law, violators are required to pay attorneys fees incurred by the plaintiff and many small business owners opt to pay a settlement instead, Conte said. Often, that payment represents money that small business owners could have used to bring ADA violations into compliance, he said.
“Its one thing to see theres a compliance issue with the ADA and nobody wants to dispute that, but the method of trying to uncover it is an ambush,” Conte said. “Its not a way to talk to a small business, to not really give them a chance to know what needs to be corrected first.”
Business owners facing such lawsuits should notify members of the Volusia County Chamber Alliance, Conte said. The alliance consists of the Daytona Regional Chamber, DeLand Area Chamber, Holly Hill Chamber, Ormond Beach Chamber, Port Orange South Daytona Chamber and Southeast Volusia Chamber.
“We want to be able to compile it, so we know and can start leaning on state representatives,” Conte said. “If you have a practice that isnt ethical, you petition your elected representatives.”
Signed into federal law in 1990, the ADA bars firms from discriminating against people with disabilities, whether they are employees or customers. Banks, shops, hotels, restaurants and other “public accommodations” must remove barriers to the “full and equal enjoyment” of their goods and services.
Douglas Schapiro, a Boca Raton attorney who has filed dozens of civil lawsuits in federal court accusing South Florida companies of ADA violations in recent years, considers his clients advocates for [people with disabilities].
“People with disabilities feel discriminated against very often,” said Schapiro, who isnt involved in any of the recent Volusia County lawsuits. “Despite the law that has been on the books for almost 25 years, many, many places are still not compliant.
“Imagine having to go to the bathroom and not being able to fit into the door,” Schapiro said. “At least from my perspective, the individuals that file a lot of lawsuits are seeking to change their community or state so businesses are more accessible.”
But the spirit of the law isnt reflected in a rash of lawsuits in recent years aimed primarily at small businesses, said Michael Woods, an attorney with Cobb Cole in DeLand.
“This is not a new thing, but it is a pretty egregious practice in South Florida in the past couple of years,” Woods said. “The frustrating thing is that the ADA serves a very good purpose, to make sure our buildings are accessible to everyone.
“The problem is the way this litigation is being used is a distortion of the law,” Woods said. “At the end of the day, you could have one of these lawsuits filed and an offer to settle at whatever dollar amount so the guy goes away — and nothing ever happens to the underlying concerns about the violations.”
Such lawsuits are filed most often in Florida and California, according to legal observers.
In April, “The Economist” magazine reported that one plaintiff sued nearly 50 businesses along Floridas Panhandle in August of last year, on the way to filing 529 ADA suits statewide in 2014. The same article also states that nationally, more than 4,430 lawsuits reached the federal courts in 2014 – a 63% jump in one year, according to Seyfarth Shaw LLP, a law firm that defends businesses against ADA claims.
Volusia County hoteliers faced a similar wave of lawsuits about five years ago, said Bob Davis, president and CEO of the Hotel & Lodging Association of Volusia County.
“The blue wasnt blue enough on handicap lanes,” said Davis, who considers many of the complaints to be more nuisance than substance. “The sign wasnt so many inches from the ground. Nonsense. When you get served youve got to go to federal court in Orlando and it ends up costing you $40,000 or $50,000. Youre better off paying $10,000 and going on and fixing your problem.”
More information from the Southeast ADA Center:
Listen to these two WADA ADA Live! broadcasts to learn how to make your business accessible so you dont discriminate against customers with disabilities in your policies and procedures. Each archived radio show is 30 minutes. Written transcripts are also available.
WADA ADA Live! Episodes 18 and 19: When Lawyers Come Knocking: How Accessible Is Your Business (http://adalive.org/episode18) and Before Lawyers Come Knocking: Readily Achievable Barrier Removal (http://adalive.org/episode19)
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