The Tenth Circuit makes the ADA 2010 Standards a true safe harbor for business.

jordan-petra-photos-2A door is just a door, no matter how grand. That is what the Tenth Circuit’s held in Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 2014 WL 4290589 (10th Cir. 2014) when it reaffirmed what businesses have always believed; that is, that the 2010 Standards and their predecessor the ADAAG are a real safe harbor for business.* This is, of course, the Hollister front porch case that I and many others have blogged about in the past. In it the plaintiffs claim that the raised “front porch” at the center entrance for Hollister stores violates the ADA because it is not accessible (it is reached by steps). They claim that although the entrances that flank it on either side are accessible,  the center entrance provides a unique “experience” and so it must be accessible too. The Tenth Circuit has now rejected that claim, holding that the store’s compliance with the 2010 Standards eliminates any claim under the ADA. It’s analysis is worth studying for any business that has been or may be sued under the ADA.

The Tenth Circuit begins by observing that a facility which complies with the 2010 Standards is, by definition, accessible. It rejects any notion that some “overarching” purpose of the ADA can create an ADA violation when a facility meets the Standards. It then notes that the Hollister stores appear on their face to comply with the 2010 Standards because at least 50% of the entrances are accessible.
The Tenth Circuit next rejects the idea that there was a discriminatory policy or practice at issue because the porch was “used” in ways that were not available to those in wheelchairs. It argues that it was the design of the porch that made it inaccessible, not its use, and the matters related to design are comprehensively covered by the 2010 Standards.  Since each Hollister store was in compliance with the Standards, the “use” of the porch was not a violation of the ADA.
Finally, the Tenth Circuit turned to what was really the heart of the plaintiff’s claim, which was that a particular place (the porch) had to be accessible to every patron. Here the Tenth Circuit turns again to the Standards, finding in essence that if a part of the building is specifically covered by the Standards then it cannot be re-defined as a separate “space” in order to impose an additional accessibility requirement. Here is what the Court writes:
Even so, the idea that the porch is a “lobby” or “customer lounge” is a weak one, as the porch is not a destination in itself but a means of passage into the store. The standards provide no safety if an entity complies with the guidelines plainly regulating a contemplated feature (e.g., an “access point to a building or portion of a building or facility used for the purpose of entering,” i.e., an “entrance,” 1991 Standard 3.5) only later to be told that the feature is also a “space” that must be accessible unless fitting into a limited exemption.

The key phrase, of course, is “not a destination in itself.” The Court appears unpersuaded that, despite Hollister’s desire to create a lounge space, anyone actually goes to the porch but doesn’t go on into the store. It is a fancier entrance than those to either side, but just an entrance. Althought the Court doesn’t mention it, but there is clearly a slippery slope argument to be made. If the center entrance is flanked by columns while the accessible entrances on either side are not can a disabled plaintiff claim discrimination because the center entrance makes you feel more important? What if you add statues of lions? What if you add a merchandise display identical to a display in the store? What if you add a display that is not available in the store?  The Court’s holding avoids this problem by simply saying that an entrance is an entrance, and if the building has the required accessible entrances the details don’t matter.

The Hollister case is far from over. It was decided over a lengthy dissent, making en banc consideration likely. In addition, the result is only a remand because the case was decided in the plaintiffs’ favor on summary judgment.  Even if the argument for a customer lounge is “a weak one” it may still be proven true when all the facts are in. Nonetheless, the central point of the decision seems likely to remain valid; that is, the 2010 Standards and ADAAG are intended to provide a safe harbor, and theories of discrimination undermining that safe harbor will be greeted with skepticism at the very least.

*Thanks to my colleague William Goren for pointing this case out to me. His blog at williamgoren.com is well worth reading

ADA and FHA Policies – One size does not fit all.

One size fits all
“Defendants cannot guarantee that an individual employee will not act inappropriately in a particular instance. However, under the ADA, Defendants can and must ensure that they adopt the proper policies and procedures to train their employees on dealing with disabled individuals and make reasonable efforts to ensure that those policies and procedures are properly carried out and enforced.”
Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 127 (N.D.N.Y. 2000).

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“Disability” and “Handicap” are not the same, and it matters

wheelchair-question-markMany lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA)  must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA. Continue reading

Unconventional wisdom concerning pet deposits under the Fair Housing Act.

thomas's-leaf-monkey_0337One common bit of conventional wisdom under the FHA is that apartments and other housing providers cannot require a pet deposit for an assistance animal or service animal. This is certainly the position of HUD and the DOJ. (See, HUD memo dated April 25, 2013 and see http://www.ada.gov/qasrvc.htm). The position is based on the notion that because a disabled person is required to have a service animal it is discriminatory to require anything of such a person that would not be required of a person without a disability who had no pet. See Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., 2011 WL 2945824 (D. Idaho 2011). The question of whether it indeed violates the FHA to require what would be more rationally called an “animal damage deposit” is really more nuanced than this.

As a first step, there in an inherent inconsistency in the positions taken by HUD and the DOJ concerning damage caused by service or assistance animals. HUD acknowledges that an apartment owner can charge an animal owner for damage caused by the animal if it requires reimbursement for damage cased by other tenants. If the argument against an animal damage deposit is that disabled persons cannot use or enjoy the premises without an animal surely it can argued that the inevitable damage is also a consequence of their disability. After all, non-disabled tenants are never charged for animal damage because, of course, they don’t have animals if there is a no pets policy. A refundable animal damage deposit is only an advance against later damage, and if the landlord can charge for actual damage there is no reason not to charge a refundable deposit.

The FHA should allow this because it is elementary that a reasonable since a reasonable accommodation cannot impose an undue financial burden on the landlord. Giebler v. M&B Associates, 343 F.3d 1143 (9th Cir. 2003). Landlords require damage and rent deposits for all tenants based on the reality that renters move out and leave damage behind, and that it is difficult or impossible to recover the cost of that damage after the fact. If an animal is likely to cause additional damage then the landlord will suffer an undue financial burden if it cannot require a deposit. The widespread imposition of pet deposits in apartments that allow pets demonstrates that animals do cause additional damage. After all, no landlord would make his apartments less competitive by imposing an unnecessary charge on tenants.

In addition, the FHA’s non-discrimination provisions include “assistance animals” that provides “emotional support” to “alleviate” symptoms of a disability. No special training is required. The ADA definition of service animal is not so loose, providing that a service dog is “individually trained to do work or perform tasks for people with disabilities.” In most cases the special training for service animals includes behavioral training that makes them unlikely to be destructive in any circumstance. There is no assurance that an assistance animal will have such training, and so it may be rational for a landlord to require that assistance animal owners pay a damage deposit. This was discussed in Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.North Dakota 2011), a case that concluded fact findings were required to determine whether it was reasonable to require a damage deposit. In Smith v Powdrill, 2013 WL 5786586 (C.D. Cal. 2013) the court went further, acknowledging that while a “no pets” policy could not be enforced, a reasonable accommodation might include requiring a damage deposit not required of tenants who had no animals.

Finally, there may be a real question as to whether a modest animal damage deposit actually has the effect of denying a disabled tenant access to housing. In the Intermountain Fair Housing case the animal deposit was fairly steep at almost $1000. It isn’t hard to imagine cases in which, based on the rent for the apartment and ordinary deposit a modest additional pet deposit would not be a problem for tenants wealthy enough to rent a unit in the first place. A rational deposit requirement that imposes no real burden on the tenant would certainly seem to be possible as part of a reasonable accommodation.

In the end, the key to the question of animal damage deposits boils down to whether the facts justify such a deposit as part of a reasonable accommodation. “The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir.1997). Unlike service dogs that accompany their owners for a short time in a retail store or restaurant, assistance animals are likely to spend most of any day in the apartment, making the chance of destructive behavior greater. In addition, because there is no limit on the kind of assistance animal there are also more possibilities for destructive behavior. A monkey, for example, can reach and damage things no dog could reach. By trying to create a single broad rule for a wide variety of disabilities and types of animals HUD and the DOJ have ignored their own repeated warning that determinations concerning reasonable accommodations must be based on the specific circumstances rather than sweeping generalizations. This imposes a burden on landlords, who themselves cannot rely on a “one size fits all” policy, but also means there is a sound argument to be made that a reasonable accommodation may include an animal damage deposit.

ADA accessibility in movie theaters — do the DOJ’s plans make sense?

interiorOn July 23 the Depart of Justice published a notice of proposed rulemaking on accessibility in movie theaters for those with vision and hearing disabilities. (http://www.ada.gov/regs2014/movie_nprm.html). The public comment period begins today. The proposed rules will require most movie theaters to buy equipment so that customers with hearing disabilities and vision disabilities can participate in the movie watching experience.  There are numerous limits and caveats, but what I find most interesting is the analysis of costs and benefits, in which the DOJ admits that it has little or no data to support a claim that the benefits are worth the costs. Consider some of the DOJ’s admissions about its own ignorance: Continue reading

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