ADA and FHA Defense

Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.

Indemnity and contribution for Fair Housing Act claims.

Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well.

Mootness for website accessibility

Gil v. SMG Holdings I, LLC, 18-20107-CIV, 2018 WL 2435162 (S.D. Fla. May 29, 2018) highlights the problem we addressed in our last blog concerning the lack of regulations concerning website accessibility. The defendant tried to moot the plaintiff’s claims concerning its website by fixing the problems, but found some could not be fixed in the way demanded. Without any standard for accessibility the court could only conclude that mootness was not established beyond doubt and the case had to go forward. Given the regulatory impasse at DOJ even a perfectly accessible website is probably not immune from an ADA claim.

Mootness done right

Kelley v. Sparrer, 2:17-CV-00688, 2018 WL 2768660 (D. Utah June 8, 2018) simply illustrates the fact that properly correcting physical barriers to access can lead to dismissal based on mootness. It is worth reading for comparison with other cases in which mootness was done wrong.

Another credit union standing victory

Credit Unions continue to obtain dismissals of ADA website accessibility cases, as shown by Carroll v. Roanoke Valley Community Credit Union, 7:17CV00469, 2018 WL 2921106 (W.D. Va. June 11, 2018). We’ve blogged on this before**, and this case follows the pleasant trend of taking the injury-in-fact requirement for Article III standing seriously.

ADA Standing for serial litigants

In Kennedy v. Solano, 18-10250, 2018 WL 2411761 (11th Cir. May 29, 2018) the 11th Circuit confirmed its willingness to apply the Iqbal and Twombly pleading requirements to allegations related to ADA standing, and in particular to require plaintiffs to do more than allege a general intent to return when the circumstances make the allegation implausible. Relying on the distance the plaintiff lived from the defendant restaurant and the lack of prior patronage the Court had no trouble finding that a general allegation of intent to return was not plausible.

The opposite result was reached by a 2nd Circuit court in Norkunas v. Sandeep Partners, LLC, CV 17-12089-PBS, 2018 WL 2727899 (D. Mass. June 5, 2018), but the facts were quite different. Norkunas is a habitual ADA plaintiff from Florida who sued a motel in Massachusetts. Although the distance from his home was considerable, he alleged he had family in the area and that he had stayed at the hotel three times in the past. As a rule of thumb, multiple past visits will almost always result in denial of a motion to dismiss based on standing in any circuit. It is also worth nothing that in cases involving hotels distance is less of a factor than reason to travel because hotels are almost never close to the plaintiff’s home. Challenges to standing require careful thought because if they fail they represent a useless expense of legal fees.

Default as a strategy in ADA cases

We continue to see defendants choosing to default as the best way to reduce litigation expenses in California cases. In Cervantes v. Vargas, 2018 WL 2455615 (E.D. Cal. June 1, 2018) the defendant failed to appear and the plaintiff got a default judgment requiring remediation and awarding the California statutory minimum damages of $4000 plus about $4000 in attorneys fees and costs. It is hard to imagine how the defendant could have done better with a defense of any kind. Sometimes surrender may be the best defense, though it carries real risks that should be considered first.

Pleading standards for readily achievable barrier removal.

Norkunas v. Sandeep Partners, LLC, CV 17-12089-PBS, 2018 WL 2727899 (D. Mass. June 5, 2018) is also a reminder that regardless of the burden of pleading that barrier removal is readily achievable the plausibility of an ADA claim can be determined by the allegations in many cases. The court was unpersuaded by the defendant’s claim the plaintiff failed to plead barrier removal was readily achievable, finding that the nature of the alleged barriers made it plausible they could be removed at minimal cost. “Don’t shoot till you see the whites of their eyes” is good advice for the defense of ADA claims – money spent on defenses that just won’t work is money that would have been better spent on remediation.

FHA claims can be a complicated mess.

In Elliott v. QF Circa 37, LLC, 16-CV-0288-BAS-AGS, 2018 WL 2933467 (S.D. Cal. June 12, 2018) the District Court patiently waded through a plethora of claims under the Fair Housing Act and related statutes before dismissing all but two of the plaintiff’s discrimination claims. The individual claim by claim decisions are not remarkable, but the case is a reminder that because tenants and landlords have long term relationships their interactions can be complicated. Landlords wanting to avoid lawsuits need to be careful with both procedures and paperwork. Even more important, employees must be trained to recognize that disabled tenants will almost always be “difficult” in the sense that they require more attention than other tenants. There is an distinct undercurrent of annoyance by the apartment manager in the one claim that survived summary judgment. It’s hard to be perfect, but with the FHA that is sometimes what is required.

Bus stops and shopping malls under the ADA.

Access Center for Independent Living v. WPG, Inc. et al, 3:15-CV-444, 2018 WL 2763453 (S.D. Ohio June 8, 2018) illustrates some of the problems that arise at the intersection of private property and public transportation. The ADA requires that public accommodations offer an accessible route from the edge of the property to the facility, and in particular from public transportation stops. In the case of a large mall that accessible route can be long and will traverse a parking lot and traffic areas. Does that mean the mall must allow a public bus to pick up passengers at the mall entrance? This Court found it was not necessary, using roughly this line of argument:

There was no failure to meet ADA design standards because they only require a route from the edge of the property – not that public transportation be permitted to enter the property.
The ADA does require reasonable modifications of policies and procedures, but only if necessary. In this case it was not “necessary” for public buses to be allowed at the mall entrance because disabled passengers could get to the mall from the property line and, more important, the public transportation system offered a special ride service for those with disabilities and the special ride service was allowed to pick up and drop off passengers next to the mall. The fact that the special service was less convenient and sometimes unavailable did not change the result.

Beyond the technical arguments this case is a reminder that the ADA is meant to insure equal access, not special access. If ordinary users of public transportation must cross a parking lot in order to get to the mall entrance and the route is equally usable by those with disabilities then those with and without disabilities have equal access, which is all the statute is intended to provide.

The meaning of auxiliary aids and services under the ADA

The ADA requires that public accommodations provide “auxiliary aids and services” if necessary to prevent a disabled person from being “excluded, denied services, segregated or otherwise treated differently than other individuals.” The relevant regulations focus on communications services, and in Est. of Smith v. Forest Manor, Inc., 7:16-CV-01774-RDP, 2018 WL 2770203 (N.D. Ala. June 8, 2018) the Court reminded that for the Department of Justice, at least, auxiliary aids and services means only aids and services related to communications. The Court rejected the idea that various kinds of equipment related to transportation might be required as an auxiliary aid or service because transportation is not communication.

* “What were they thinking? Indemnity and accessibility under the ADA and FHA” and “Time for a do-over – the 9th Circuit gets indemnity and contribution right.”

** “Credit Union victories in ADA website litigation: an opportunity for all defendants.“

The last couple of weeks brought a variety of decisions, most falling in to one of the familiar patterns for ADA and FHA litigation, but one or two presenting novel defenses and interesting judicial reactions.

A very interesting question of standing.

Johnson v. Castro et al, 2:16-CV-00658-MCE-DB, 2018 WL 2329249, at *3 (E.D. Cal. May 23, 2018) makes a very interesting point about standing, one related to some of the standing questions raised by other recent cases dealing with the plaintiff’s ability to take advantage of the goods and services of a public accommodation.** In Johnson the plaintiff suffered from cerebral palsy and made various claims concerning entrances and access to the restrooms. In response to the plaintiff’s motion for summary judgment the defendants provided evidence that the restroom issues had been remediated and challenging the existence of a problem with the doors. They added that the plaintiff’s disability was so severe he could not eat or drink without assistance from the restaurant owner, who cut up his food and fed him at the table. The owners argued that the plaintiff was incapable of taking advantage of the restaurant without help they were not obligated to provide and therefore could not prove any accessibility had caused him harm. The Court found this at least raised an issue of fact:

“Consequently, Defendants raise a question of fact as to whether Plaintiff legitimately could have eaten at the Restaurant without assistance going well beyond any accessibility requirements mandated by either the ADA. . .”

Quick Hits for the ADA and FHA – World Cup edition