In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More
Billy Joel had a major pop hit in 1977 with “Get it Right the First Time” from “The Stranger.” Forty years later Starbucks has proven just how true this is. In Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) the Court reminded Starbucks and every other public accommodation that “get it right the next time” is not the same thing as getting it right the first time. In fact, it is the difference between winning and losing.
The issue of interest in Crandall v. Starbucks concerned access to a counter that was blocked by a point of sale display. This is not a first for Starbucks as we described a couple of years ago in POS Marketing and ADA Compliance – you can’t have it both ways. In the earlier Kalani v. Starbucks case the defense was that POS sales items were only temporary barriers because they could be easily removed. The Court disagreed because, in its view, the POS displays were intended to be permanent even though they could be moved.The displays at issue in Crandall were a standing display placed so close to the counter that it intruded into the required 36 inches of clearance as well as displays on the counter itself. Some time after the lawsuit was filed the standing display was moved out of the way and the counter displays were removed. This, according to Starbucks, eliminated the need for any relief and required a defense summary judgment.
The Court disagreed, noting that the changes were not structural or permanent because the displays at issue were easily movable. Equally important, there was no evidence that Starbucks had adopted any policy against on-counter displays or concerning the placement of merchandise displays. Because Starbucks could re-create the barriers to access at any time the case was not moot.
So far, so bad, but worse was coming. The Court found the existence of a violation at the time the plaintiff visited and on two later occasions was established as a matter of law, refused to credit Starbucks’ argument that its employees would always move the displays to a correct position, and granted summary judgment for the plaintiff. “Get it right the first time” and there’s no lawsuit at all. “Get it right the next time” and you’ll be paying the plaintiff’s attorneys fees while contemplating a permanent injunction. In cases involving things like displays that employees place and move, getting it right the first time means having a policy in place before there is a lawsuit that requires employees to maintain an accessible premises.*
Crandall v Starbucks includes a complaint that the required route was not 36 inches wide, but it seems the Court granted summary judgment for the plaintiffs because it was undisputed “that when there are customers in the store the displays make the path of travel too narrow.” Id. at *14. The Court also found that accessible routes might be blocked in the future based on the “absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel.” In both cases the problem identified by the Court is not any structural feature of the restaurant, or even a problem with where the furniture was placed by the staff, but rather a problem with the conduct of other customers.
It isn’t difficult to imagine that in an informal space like a coffee house or bar customers will feel free to move chairs and even tables, and may congregate in areas that are part of an accessible route. The ADA prohibition on “discrimination” applies to the design and construction of public accommodations and the removal of “architectural barriers and communication barriers that are structural in nature.” It doesn’t say anything about regulating the behavior of other customers. Starbucks has not been afraid in the past to take cases to the Ninth Circuit, and it would be nice in this case to get a definitive rejection of the notion that businesses are required to regulate customer behavior in order to comply with the ADA. In the meantime, businesses that are crowded or are pushing the limits of accessibility should be be careful.
*In a ruling this week a Magistrate Judge in the Western District of Pennsylvania approved class certification for a lawsuit against Steak & Shake that appears to rest primarily on a failure to properly maintain its parking lots. Last year this time we blogged about a similar lawsuit against Cracker Barrel restaurants brought by the same law firm. Does the ADA Require a Compliance Policy? Every temporary barrier caused by a lack of maintenance can turn into a permanent injunction if the right policies are not in place before a lawsuit is filed.
On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Apartments, Condominiums, Public Facilities, Restaurants, Retail, Shopping Centers Tags: accessible parking, ada litigation, parking lots, Public accommodation
What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.
A news story about a children’s theater group caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.
What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.
The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.
Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.
Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.
The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.
* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.
**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.