Canadian and foreign businessmen beware of handicap “testers” in your place of business


Par Le soleil de la Floride

A “Tester” is someone who goes around your area or county, trying to find any type of violation of the handicap laws, in order to have an attorney file a lawsuit against the business for such violations. It can be someone who comes into your hotel, restaurant, place of business, and has no intention of using your facilities or buying any product from you. His only purpose is to shake you down, eventually by getting an attorney to file a lawsuit in his name against your business.

In November of 2013, a decision, by the United States Eleventh Circuit Court of Appeals, in a case found that someone who isn’t necessarily a patron, could be a “tester” of disabled-access compliance. That decision cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers.

Lawsuits are being filed, including for minor violations of the handicap laws, such as not have a hook on the bathroom door low enough for a person in a wheel chair to reach the hook to hang up his winter coat, in a Florida restaurant. It can be that the mirrors in your bathroom facilities are not low enough for the handicap person.

There are attorneys who have “testers” in Florida visiting every type of business to see if they can find violations of any kind in order to obtain attorney fees for bringing an action in a state or federal court under the handicap laws.

Attorneys apparently do not have to notify the business owner before filing the court action, so that the business owner can correct the violations, however minor they may be. Even if the violations are minor and not deliberate, the attorneys will be able to obtain attorney fees through either a settlement or through the court. In some cases, it is the equivalent of a “shakedown” of the business owner.

One attorney alone has handled 250 to 350 total federal disabled-access lawsuits in the past five years, mostly in South Florida. He claims that plaintiffs who pursue cases are “implementing their rights.”

The increase in lawsuits followed the United States Justice Department’s release of a set of compliance standards for the 24-year-old federal disability law. Those standards that became effective in March of 2012, include detailed specifications, such as the allowable slope of a wheelchair ramp and the exact height of towel or toilet paper dispensers in accessible restrooms. They also introduced a new requirement for hotels with pools to provide a “pool lift” for disabled guests.

It appears that, in many cases, the lawsuits accomplish little more than providing revenue to attorneys. That is because under federal law, plaintiffs can’t win damages, but they are entitled to seek reimbursement of their attorneys’ fees. Business owners can be responsible for paying the legal bills of two set of lawyers, their own as well as the “Testers”.