Who’s to blame for an ADA violation? If you don’t decide a judge will.

12When public or quasi-public entities contract with private businesses to use their facilities it can be difficult to pin down just who may have violated the ADA. It doesn’t have to be, but allocating ADA responsibility requires that the parties at least think about it. When they don’t the resulting litigation is likely to be complex and lengthy.

In Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) the Ninth Circuit established that a private entity could not avoid ADA liability by renting a publicly owned facility. It found, in essence, that the facility became a public accommodation when it was being used by the private entity, and the private entity could be the operator of that public accommodation. The now decade old message for businesses was clear: Your ADA liability will depend on your contract with the facility, and in particular on whether you control some aspect of accessibility.

A case decided on December 8 shows that this message has not yet been taken to heart by event the largest and most sophisticated enterprises. Ritchie v. Nat’l Football League, 2014 WL 6980236  (D. Hawaii. Dec. 8, 2014) was brought by a disabled patron of the NFL’s annual Pro Bowl. She had been unable to sit in the front row seat she purchased because, she alleged, the NFL and stadium owner, a quasi-governmental agency,  forbade it. She sued both the NFL and the stadium owner under state and federal law.  The NFL’s defense was simple; although it used the stadium it had no control over seating issues, including accessible seating issues, because these were under the control of the stadium owner. After looking at both the contract and the conduct of the parties the court concluded the question of control could not be resolved on a Motion to Dismiss or a Motion for Summary Judgment. This leaves both the NFL and the stadium owner as defendants in a lawsuit that has the potential, at least, to last a long time and cost a lot of money.*

Could the NFL have done better? The answer is certainly yes. In order to avoid any possibility of injunctive relief under the ADA the NFL and stadium owner entered into a stipulation that the NFL would have no authority at all over seating decisions in the future. This mooted all the plaintiff’s claims against the NFL except her state law damage claims. The fact that the NFL could make a contract that eliminated ADA liability after the fact proves that it could have made a contract before the plaintiff’s visit to the Pro Bowl that did the same thing. It is reasonable to assume that it didn’t because no one thought about the issue.

“Remember the ADA” doesn’t have the ring of “Remember the Alamo,” but it is critical for any business that enters into short term contracts to use facilities owned by others, and of course equally important to the facility owner. An equally important second lesson is that the ADA isn’t just about physical accessibility. The plaintiff in this case did not claim a violation of the ADAAG or 2010 Standards. Her claim was based on the way she was treated when she tried to reach her seat, not on the fact that the seat was unaccessible. It isn’t enough to contract for control of physical accessibility: It is equally necessary to contract for control of operations decisions that might include discriminatory conduct. ADA compliance issues should be on the checklist of every lawyer who helps negotiate facilities usage agreements of any kind.

 

Reasonable accommodation under the ADA – what would you do for your mother?

Whistlers_Mother_high_resI wrote last week about the difficulty in determining just what the ADA requires in cases concerning physical accessibility. A recent decision from California shows how hard it can be to know what the “reasonable accommodation” provisions of the ADA require. For businesses who want to comply with the ADA and want to avoid litigation this is bad news. I’d like to suggest though that a simple principle will help businesses do the right thing. Just have your employees ask themselves what would they would do if customer were their mother. Continue reading

Law, Regulation and Confusion in the ADA

Tea-Leaves-In-CupThis week two ADA writers I follow, Marc Dubin and William Goren, looked at the problem of telling just what the ADA requires. Both concluded that in some respect the only way to know was to  look at the latest private settlements between the Department of Justice and various businesses it investigates. You can know the statute, you can know the regulations, you can read the various guidances, but if you don’t keep track of what the DOJ is doing when it settles its private investigations you really don’t know what to do in many cases. The National Association of the Deaf, an advocacy group, recently wrote on the requirement of closed captioning in audio and audiovisual presentations (nad.org). With a few exceptions governed by statutes other than the ADA the best the N.A.D. could say was that closed captioning “may” be required or that the situation is uncertain. Continue reading

Endless liability under the Fair Housing Act — and let’s make it personal

Endless liability under the Fair Housing ActI often remind my clients that when it comes to the Fair Housing Act and Americans with Disabilities Act the adage “ignorance is bliss” does not apply. Last week’s decision from the Southern District of Mississippi, U.S. v. Dawn Properties, Inc. et al 2014 WL 5775324 (S.D. Miss. Nov. 6, 2014) is a reminder that ignorance may turn corporate liability into personal liability for managers or owners, and that time may not be enough to insure safety.

The underlying business deals were common in the real estate development business. An LLC, Ridgeland Construction One LLC, was created to develop an apartment complex. Construction was finished in 2000 and the LLC was merged into a Delaware LLC of the same name. It was then sold to a new group of investors. In 2006 the property was sold and, two years later, the LLC was dissolved. No one involved suspected that there might be FHA accessibility violations although it appears no survey was ever conducted to make sure. Continue reading

ADA and the Internet – you need a nerd, not a lawyer.

gornunivacx250I was surprised last month to see a major national law firm suggest, in its ADA blog, that internet businesses are legally required by the ADA to create accessible websites, and need to consult a lawyer about that requirement. While it is undoubtedly true that creating an accessible web site is good public relations, it is uncertain whether it is required by the ADA. Here is a brief look at where things stand, and a recommendation about who you need to consult.

The courts will ultimately decide what the ADA requires in terms of internet access. Right now we have a very clear decision from the Ninth Circuit Court of Appeals holding that a web site is not a place of public accommodation and is therefore not subject to the ADA. Recent district court decisions in the Ninth Circuit follow this precedent, and the Ninth Circuit remains the highest federal court to address the issue. Continue reading

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Accessibility Defense

Richard Hunt Talks About ADA and FHA Litigation.

Richard Hunt Talks About ADA and FHA Litigation.

Richard Hunt Talks About ADA and FHA Litigation.

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