ADA and FHA Defense

a vegetable stew called a hodgepodge A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.

FHA disability claims – get it right the first time.

In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination.

Stadium seating and sightlines

Cerda v. Chicago Cubs Baseball Club, LLC, 2019 WL 4138943 (N.D. Ill. Aug. 30, 2019) provides an interesting contrast to the decision in Landis v. Washington State Major League Baseball Stadium that I discussed a few weeks ago.¹ The Court did not have to consider the ambiguous language of the original 1991 ADAAG because the case was clearly governed by the 2010 Standards, but the parties were still unable to agree on what would seem to be simple, objective facts like the total number of required accessible seats. More interesting was the Court’s focus on standing. It found the plaintiff did not have standing to seek relief concerning accessible box seats because he was not a member of the Cub’s club and therefore could not buy box seats. It also treated questions of compliance with the Standards as questions of whether Cerda had suffered or might suffer an injury. This willingness to ask whether the plaintiff suffered a real, as opposed to a merely dignitary interest, distinguishes this and many other cases from the Midwest with those from the Ninth Circuit.

Defendants SLAPP back

Langer v. Kiser et al, 2019 WL 4017033, at *7 (S.D. Cal. Aug. 26, 2019) presents an interesting counterpoint to cases I blogged about several years and several weeks ago.* The defendant counterclaimed for trespass, alleging that its parking lot was private and the plaintiff, a serial filer, wrongfully occupied it by driving in to look for ADA violations. The plaintiff responded with a motion to dismiss under California’s anti-SLAPP** law. The District Court found that the desire to find ADA violations satisfied the first requirement for an anti-SLAPP motion; that is, that the matter was one of public interest. The Court was unwilling to find, however, that the trespass claim had so little merit it should not be presented to a jury. What appears to distinguish this case from earlier failures for trespass claims is the insistence of the defendants that the parking lot is truly private. While the building served by the parking lot includes two public accommodations, the defendants insisted that every parking place was reserved for residents or business owners and employees. Nonetheless, it seems unlikely that the trespass claim will survive an appeal since the use of trespass as an attack on ADA serial plaintiffs does have public policy implications.†

Risky business

The Independence Project, Inc. v. Ventresca Bros. Construction Co., 2019 WL 4126448, (S.D.N.Y. Aug. 30, 2019) is a kind of companion to Chapman v. NJ Properties Inc., a California case I blogged about two weeks ago.‡ After settling the defendants sought to avoid paying court awarded attorneys’ fees by claiming the plaintiff was not a prevailing party. Applying Second Circuit law the Court found that by explicitly agreeing to the Court’s continuing jurisdiction to enforce the settlement the plaintiff’s had sufficiently linked their claims to the Court’s power and could therefore avoid the Supreme Court’s holding in Buckhannon. The defendants also failed to obtain dismissal based on claims the plaintiff was not disabled, and effort that undoubtedly drove up the fees awarded to the plaintiff. For this kind of ADA lawsuit strategic decisions about defense and settlement must be made before any money is spent. Some defense costs may be unavoidable, but only unavoidable costs should be incurred.

Johnson v Starbucks – the saga continues

Johnson v. Starbucks Corp., 2019 WL 4034479 (E.D. Cal. Aug. 27, 2019) is among the first cases to consider Auer deference in light of the Supreme Court’s holding in Kisor v. Wilkie.° As I and others predicted the District Court found there was no meaningful change in the degree of deference to be given DOJ’s interpretation of its regulations, in this case concerning service counter depth and width. The issue came up because Johnson wanted the case stayed while he appealed an earlier holding against him on the issue, but the Court didn’t seem to think the appeal was likely to change the law. Johnson’s blood feud with Starbucks seems unlikely to end any time soon, but Starbucks is, for the present, doing better in federal courts.

City website claims under ADA Title II

Gil v. City of Pensacola, Fla., 2019 WL 4051756 (N.D. Fla. Aug. 22, 2019) is the latest in what may be an ongoing battle over the standing of non-residents to sue over the inaccessibility of a city website. I mentioned a couple of cases in the August 28 “Quick Hits” and many others are mentioned in a footnote in the City of Pensacola case. District Courts in the Eleventh Circuit apply the pleading requirements elaborated in Iqbal and Twombly in a stricter fashion than courts in other circuits, allowing them to look at the reality of standing for serial litigants. That reality is, of course, that the plaintiff has no standing.

ADA Pleading

Williams v. El Camaron, LLC, 2019 WL 4081056 (C.D. Cal. Aug. 29, 2019) does nothing but confirm that boilerplate affirmative defenses are a waste of time and money, neither of which is in great supply.

ADA Standing

Rutherford v. Cesar’s Mexican Rest., LLC, 2019 WL 4193392 (S.D. Cal. Sept. 3, 2019) is notable because the Court insists that the plaintiff show an injury beyond merely relating his mobility impairment to the type of supposed ADA defect. This decision is round two for Rutherford in this case, and the Court’s approach, which requires Rutherford to show that particular defects caused him injury would, if adopted generally, be an effective restriction on abusive serial litigation.

Cohan v. California Pizza Kitchen, Inc. 2019 WL 4189482 (E.D. Mich. Sept. 4, 2019) presents a lack of standing so comprehensive it is surprising the plaintiff thought a suit was worthwhile. The plaintiff has problems that might someday but do not now require use of a wheelchair. He lives in Florida, which is not close to the CPK store in Novi Michigan. Finally, by the time the court decided CPK’s motion to dismiss all the alleged ADA violations had been remediated. Because all the alleged violations concerned only wheelchair users they had not caused the plaintiff any injury. Because he did not plausibly allege an intent to return there was no prospect of future injury.

Readily achievable is a question of fact.

The defendant in Brito v. Dunahay Properties Lllp, 2019 WL 4192111 (D. Colo. Sept. 4, 2019) almost, but didn’t quite manage to moot the claims against it. The problem was two architectural barriers whose remediation the defendant claims was not readily achievable because of cost. The plaintiff’s expert disagreed and presented a cost estimate the court found sufficient to raise a fact issue. The existence of the barriers was not in dispute, so the case will go to trial on the question of whether the cost is simply too high. I’m in no better position than the judge to say which side is right, but it is worth remembering when it comes to remediation that what you would prefer as a business owner may have to give way to what is needed to make the facility accessible.

You don’t lose, and you can’t quit.

Range v. 535 Broadway Group LLC, 2019 WL 4182966 (S.D.N.Y. Sept. 3, 2019) is an interesting variation on the theme of forum shopping by seeking dismissal of claims.°° As it became apparent the plaintiff was likely to lose it sought dismissal so it could refile in a friendlier state court. The judge was having none of it and made clear his opinion of the plaintiff and his counsel. He then dismissed all claims except a single claim under the New York City Human Rights Law, forcing the plaintiff to litigate a state law claim that looks like it was thrown in as an afterthought. Why would the judge refuse to dismiss such a claim when no federal claims remain? It might have to do with the fact that the NYCHRL has a prevailing party attorney provision, meaning that if the defendant wins the court can order the plaintiff to pay the defendants’ attorneys’ fees.

Disability definitions

Berger v. Natl. Bd. of Med. Examiners, 2019 WL 4040576 (S.D. Ohio Aug. 27, 2019) contains a very thorough exposition of the law concerning accommodations in test taking for those with mental impairments. The plaintiff ultimately prevailed, obtaining an injunction requiring accommodations in his taking a required medical examination. The longest and most interesting discussion concerns the conflicting evidence of disability and the difficulty in determining whether a personal is disable when they have, through hard work, achieved more than others without disabilities are capable of. Is “disability” based on a comparison of one individual to the average, as many courts suggest, or is it based on a comparison of the disabled individual to his own potential?

Olmstead obligations

United States v. State of Mississippi, 2019 WL 4179997 (S.D. Miss. Sept. 3, 2019) is too detailed in its analysis of the facts to be briefly summarized, but a couple of points are worth noting. First, deciding whether a state is meeting its Olmstead obligation requires detailed statistical data as well as individual patient interviews. The court observed that the case was largely a battle of experts. Second, having a program that looks good on paper is not sufficient if in reality disabled individuals do not have access to services available in theory. It’s relatively easy to write a policy. Putting it in to practice is what the law requires.

Plasma donation centers

I’ve written about plasma donation centers in the past² but rather than revisit the history of the circuit split here I’m going to take the easy way out and refer you to William Goren’s recent blog on Matheis v. CSL Plasma, Inc., the August 30 decision from the 3rd Circuit that finds such centers are places of public accommodations. His discussion can be found here.

¹ See, “Stadium Sightlines”

* See, “ADA serial litigation problems – don’t get mad, get even.” and “Quick Hits – Cyber Monday edition“.

** “Strategic Lawsuit Against Public Participation”

† In theory there are non-serial customers who might have counterclaims filed against them as a defensive measure. Thus, allowing such counterclaims would discourage even claims by non-serial filers. There is no reason to think Langer is in it for anything but the money; however, a rule of law cannot assume bad faith on the part of every litigant.

‡ See, “Sixth Circuit affirms its commitment to the Constitution and other ADA and FHA Quick HIts”

° See “Auer deference and the Fair Housing Act – does Kisor change anything” for a discussion of the case.

°° See the “California Dreaming” heading in my blog “Sixth Circuit Affirms Committment”

² See, “Quick Hits – Recent ADA and FHA Cases“

Picture of man with pipe and sweater Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.

The exclusion of the plaintiff’s expert testimony in Diaz v. Lobels was based on two failings. The Court found the expert, Michael McCaffrey, failed to sufficiently describe his methodology and process, and failed to establish the methods were widely accepted or standard in the field. The Court did not reject the assumption underlying the report because the plaintiff and defendant stipulated that compliance with WCAG 2.0 or 2.1 would make the website accessible for ADA purposes and that non-compliance would make it inaccessible. Instead the Court focused on the “high level” description of the methods used by the team of individuals working for the expert, which the Court found insufficient when combined with a lack of testimony concerning the standards used. More

ADA and FHA Quick Hits – hodgepodge edition.