Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.
Accessibility Litigation Trends
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail Tags: ada litigation, ada violation, mental health disabilities, service animals, support animals, therapy animals
With widespread media coverage of disputes about service dogs in bars and restaurants disability advocates, real and self proclaimed, are predicting an explosion of litigation about service dogs under the Americans with Disabilities Act. There has been no change in the statute itself, and the Department of Justice regulations for service dogs went into effect in 2011. However, as with other kinds of ADA litigation, it has taken some time for the implications of the law to work their way into the popular consciousness.
The easy situation for any business is a person with an obvious disability who comes to a business with a well behaved service dog wearing a vest or other identification. The ADA is clear – the dog and owner must be allowed in the store or restaurant even if there is a “no pets” policy in place. The harder situation, and the one that leads to media coverage and lawsuits, occurs when a person who has no obvious disability arrives with an unmarked dog and a bad attitude. Dealing with this situation, and any resulting problems, requires careful thought about just how service dogs fit into the ADA’s scheme of disability rights. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ADA standing, FHA Litigation, private lawsuits, private litigants, retail
“Don’t fire till you see the whites of their eyes” was William Prescott’s famous advice to the colonial soldiers defending Bunker Hill, and that kind of patience can be important to ADA defendants as well. Property owners and operators sued under the Americans with Disabilities Act always face a strategic choice: Should they simply remediate and settle, or should they attack the plaintiff’s standing to bring the lawsuit, which is frequently dubious at best. In most cases remediation and settlement is the best choice because the cost of defending the lawsuit and winning is more than the cost of remediation. Sometimes, though, a plaintiff just won’t settle. He or she may insist on work that the ADA doesn’t require or attorneys’ fees that are too high for the settlement to be reasonable. When that happens, and a legal battle is inevitable, choosing the right strategy is the key to minimizing expense while achieving a good outcome. A California case, Feezor v Patterson, 896 F.Supp.2d 895 (E.D.Cal. 2012) shows how patience worked to the defendant’s advantage and lead to a complete win without unnecessary expense. More
A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits. More
Since 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date. More