Accessibility Litigation Trends

Quick Hits – Groundhog Day and the ADA

By in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, Definition of disability, FHA definition of handicap, Internet Accessibility Tags: , , , ,

groundhog quick hits

It looks like six more weeks of winter based on the reaction of Punxsutawney Phil to the long shadow he casts over weather forecasting. The last week of ADA decisions seems to confirm that it will remain chilly for businesses as well.

Website Accessibility*

If Punxsutawney Phil had seen Robles v. Yum! Brands, Inc., 2018 WL 566781 (C.D. Cal. Jan. 24, 2018) when he popped out of his hole on Groundhog Day he probably would have just given up and stayed inside for the rest of the year. Robles is another web accessibility case in which the district court simultaneously refuses to say just what an accessible website is and requires the defendant to build one. In other words, no summary judgment is possible and the defendant faces an expensive legal battle after which it may be ordered to do something impossible or, worse still, ordered to do something so ill-defined that it will lead to an endless argument about compliance. We discussed this in more detail in our earlier blog “What is an ADA accessible website? Well, it’s complicated.” More


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Does motive matter in an ADA case? Sometimes.

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: , , ,

Test“Tester standing” is an area of ADA litigation that seems to create a good deal of confusion, so it is worthwhile to take a look at the 4th Circuit’s recent decision in Nanni v. Aberdeen Marketplace, Inc.,  2017 WL 6521299 (4th Cir. Dec. 21, 2017). As is often the case, the decision illuminates the requirements for standing but contains the seeds of future confusion.

The Fourth Circuit’s decision concerned a motion to dismiss made at the very beginning of a lawsuit, but it is easier to understand the position of a tester under the ADA by starting at the end of lawsuit – the trial. That is when, as the saying goes, the truth don’t lie.

To prevail in an ADA case based on architectural barriers the plaintiff must prove that he was injured by an ADA violation before he filed suit and that he will likely be injured in the future unless that violation is remediated. Let us suppose that an individual like Mr. Nanni testifies that he went to a mall or store but had some difficulty getting out of his car because the parking space was not properly constructed. He then testifies that he is likely to go back in the future, and if the space is still not corrected he will have the same problem. Perfect. Injury before suit, injury in the future, he has standing.

Now let us suppose the plaintiff admits he went to the mall as a tester looking for ADA violations. He also admits that he has filed many lawsuits against businesses like the mall that are not close to his home. Given a long list of businesses he sued he can’t recall when if ever he returned to any of them. Nonetheless he claims that he will return to the defendants’ business in the future and will therefore be harmed by any barriers to access that are not fixed. The judge looks him in the eye and decides he is lying. This is what happens at trial – the judge or a jury decides who is lying and who is telling the truth. Because the judge doesn’t believes he will return the judge also thinks there is no likelihood of future injury. The plaintiff loses no matter how real the ADA violations might have been because without that future injury he does not have standing to ask for injunctive relief.

Now let’s wind back the clock to the beginning of the lawsuit. Same plaintiff, same history of lawsuits, but this time the judge is not listening to testimony at trial but instead reading the complaint. It says all the same things the plaintiff intends to say at trial. The judge throws the case out, saying that the complaint isn’t sufficiently persuasive to satisfy the requirements of Rule 8 of the Federal Rules of Civil Procedure as interpreted in the Supreme Court’s decisions in Iqbal and Twombly.* That’s the case that went to the Fourth Circuit, which said two uncontroversial things:

  1. Being a tester does not disqualify a plaintiff from filing a lawsuit because you can be a tester and still be injured by an ADA violation. The plaintiff may have been looking for ADA violations, but he still couldn’t get out of his car, and that is precisely the kind of injury the ADA was intended to prevent.
  2. Being a tester didn’t mean the plaintiff did not intend to return. He said in the complaint that he intended to return and at the beginning of the case, before the judge looks the plaintiff in the eye and hears his testimony, the judge has to assume that what the complaint says is true.

The first point is one that is often mis-stated, with plaintiffs and others saying that “testers have standing.” The drive-by litigation boom has been fueled by the notion that claiming to be a tester and seeing a possible violation is sufficient, but there is no rational theory of standing that would allow this. Testers don’t have standing because they are testers, they have standing because they have been injured.

The second point is that while being a tester is not sufficient, but it also doesn’t disqualify the plaintiff. This is something the district court got right and it would have been helpful for the Fourth Circuit to confirm it.

The real controversy about testers is usually not whether there is a past injury, but whether there is going to be a future injury. What the district court said, in essence, was that with Nanni’s litigation history he would have to plead a lot of details to make a plausible case that he would return. The Fourth Circuit rejected this, observing that because being a tester did not disqualify a plaintiff there was no reason to think testers had an extraordinary obligation to provide details at the beginning of the case. This is not by any means a radical view.

Then, unfortunately, the Fourth Circuit says this: “At bottom, we reject the proposition that Nanni’s motivations in pursuing his ADA claim against Aberdeen deprive him of standing to sue in these proceedings.” 2017 WL 6521299, at *8. This is at best only half true. A plaintiff’s motives can deprive him of standing if, based on those motives, the court finds after a trial that there was no intent to return. Motives are important evidence about future behavior and are therefore relevant. What the Fourth Circuit should have said, and perhaps meant to say, is that motive does not necessarily deprive a plaintiff of standing. At the pleading stage a tester has no higher pleading obligation than any other plaintiff, but at trial a tester may have some explaining to do. It’s an important difference, and one that needs to be more clearly recognized.

* See our earlier blog “Iqbal, Twombly and the ADA”

It would be well worthwhile for any reader of this blog or our previous blog on internet accessibility cases to check the latest blog at williamgoren.com, which discusses the same issues from a different perspective.

 


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Quick Hits – Polar Vortex edition

By in Accessibility Litigation Trends

quickhits vortex_edited-1After the Great Polar Vortex of 2018 receded to the north we found a number of new cases under the melting snow. Here is the state of ADA litigation in early 2018.

Website lawsuits

We discussed some of the most recent website accessibility cases in our earlier blog, “What is an ADA accessible website.” In some ways Buchholz v. Aventura Beach Associates, Ltd., 2018 WL 318476 (S.D. Fla. Jan. 5, 2018) is another such case, but the Court’s explicit application of 11th Circuit law is illuminating. The plaintiff alleged that a hotel website was not accessible, but did not allege he ever tried to stay or intended to stay at the hotel. Following earlier 11th Circuit authority the Court began with the premise that a website was not by itself a public accommodation, but that it was required to be accessible if it was a service of a public accommodation. This is based on the “gateway” theory that the website is, like a physical front door, the gateway to the physical public accommodation. The Court then took the next logical step – if the plaintiff didn’t care about going to the physical premises then he had not suffered an ADA injury from the inaccessible website. This goes back to the front door idea. If a plaintiff never intends to go into a store then the inaccessibility of the front door has not injured him. As the case law slowly evolves this decision is an important step on the way to defining just what kind of injury must be associated with an inaccessible website.

Presmarita v. Metro-N. Commuter R.R. Co., 2017 WL 6542515  (S.D.N.Y. Dec. 21, 2017) is a case under Part B of Title II to the ADA, which governs public transportation. It illustrates how important regulatory requirements can be in ADA cases. Unlike airlines, commuter railroads are not required by regulation to provide wheelchair service to their patrons. The plaintiff, who was injured because a wheelchair was not available, lost when the court found that the absence of a regulatory requirement meant there was no ADA violation. It would be a stretch, but a similar argument might be made concerning Title III and web accessibility. The federal government has required website accessibility by regulation in some contexts (airlines and government agencies), so perhaps the absence of regulatory requirements for public accommodations and municipalities means by implication website access is not required.

Administrative exhaustion defense – no, it doesn’t exist.

In Brito v. DHCS Associates, LLC, 2017 WL 6405808 (D. Colo. Dec. 15, 2017) the defendants tried a tactic that has not worked for years, a defense of administrative exhaustion. The defense is based on the idea that because the remedies under the ADA come from the Civil Rights Act of 1964 those remedies are limited by its provision requiring 30 days notice before suit is filed. The Court found a split of authority on the issue, but the fact is the only authorities for a notice requirement are decisions from two Colorado district courts. Every appeals court that has considered the issue has rejected the notion that notice is required as have most districts courts, including others in Colorado.  Until Congress passes HR 241, which puts an explicit notice requirement in the ADA, businesses should not assume they will get any advance warning of ADA violations. Those who want to avoid a lawsuit will be proactive and get a survey done immediately so they can start fixing the problems that lead to lawsuits.

ADA construction standards and negligence.

Kahn v. Cleveland Clinic Florida Health System Nonprofit Corp., 2017 WL 6415271, at *4 (S.D. Fla. Dec. 14, 2017) is another in the small group of cases touching on whether an ADA violation is evidence of negligence. We’ve blogged about this before* and the answer is, maybe. It depends very much on the particular state and its laws. What is interesting here is that the court seems to have assumed that if a restroom did not meet ADA clearance standards it was at least some evidence of negligence. So, while the result will vary by state and court, businesses should at least consider the possibility that unremediated ADA violations can also give rise to a claim for negligence.

Standing – sometimes the plaintiffs lose.

Kennedy v. New Smyrna ACD LLC,  2017 WL 6560000 (M.D. Fla. Dec. 22, 2017) is a very typical standing case with an unusual outcome. The plaintiff is a serial filer who claims to be a tester. She sued a shopping center more than 200 miles from her home. The defendant claimed that an intent to return was implausible given the distance and her litigation history. Without the intent to return injunctive relief would not redress any future injury, and without the redress of injury there is no Article III standing. The Court agreed, applying 11th Circuit law on determinations of standing. What’s interesting is the Court’s holding that if the only reason the plaintiff intends to return is being a tester then the plaintiff has not sufficiently alleged an intent to return. In many cases the only plausible intent to return is based on tester standing, and if that isn’t enough, then these cases should be dismissed.

Saar v. Tanger Factory Outlet Centers, Inc., 2018 WL 387962 (W.D. Mich. Jan. 12, 2018) is another standing case in which the plaintiff lost. The court found that “boilerplate” allegations of an intent to return to the defendant shopping center were not enough to meet the plausibility requirement created by Twombly.

Shyvers v. WH Virginia Station Shopping Ctr., LLC,  2018 WL 307146 (N.D. Ga. Jan. 5, 2018) is yet another standing case, this one involving a supposed tester and serial filer who live more than 1000 miles away from the defendant shopping center. Looking a the plaintiff’s rather meagre allegations related to an intent to return the Court found that standing had not been plausibly alleged, but gave the plaintiff a chance to re-plead and do a better job. The chance to re-plead is, in many of these cases, the opportunity to lie in a way that is specific enough to result in sanctions, but it keeps the case alive and drives up the legal fees on both sides.

These three cases are part of a mild trend toward greater skepticism about standing allegations by serial filers, especially by federal courts in Georgia and Florida, but for the present they remain the exception in most district courts. Defendants contemplating a motion to dismiss under Rule 12(b) need to know their judge and understand his or her individual views on standing before deciding to spend money on a motion that may prove futile.

See what sticks is not an effective strategy for plaintiffs or defendants.

Mote v. City of Chelsea, 2018 WL 262855 (E.D. Mich. Jan. 2, 2018) is a long opinion that contains a good discussion of the application of the 11th Amendment to ADA claims against state agencies and an equally useful discussion of why sidewalks are covered by the ADA as both “facilities” and “services.” What is most interesting, however, is the failure of a large part of the plaintiffs’ claims because the plaintiffs’ lawyers just didn’t take the time to present them coherently. This is a lesson for both plaintiffs and defendants in complex cases. Given the technical nature of ADA design requirements it takes a lot of work to sufficiently prove (or disprove) a large number of claimed violations.

Bryant v. Yosemite Falls Cafe, Inc., 2018 WL 372704 (E.D. Cal. Jan. 11, 2018) is a kind of fun-house mirror reflection of Mote. The plaintiff’s list of ADA violations was manageable (only 7 violations in a single restaurant) and the defendant seems to have fixed them, but the defendant didn’t take the time to provide admissible evidence that all the violations had been fixed. It is always tempting to save money by ignoring the details, but for reasons the Court explains in this case, it just won’t work where the statute violated has specific technical requirements that must be met.

Mootness

Kennedy v. Omegagas & Oil LLC,  2018 WL 310051 (S.D. Fla. Jan. 3, 2018) is a mootness case, but one in which the defendant did prove mootness for all but one violation. It will be helpful to defendants in small cases because it illustrates how a diligent defendant can win without experts. The owner of the defendant service station waited until he was provided with the report of the plaintiff’s expert. He then used that report as a guide for fixing the various violations, most of them items that any handy individual could manage. His testimony at trial that he did what plaintiff’s expert required was sufficient to establish that most of the ADA violations were moot. The one exception was the size of the restroom, which was just too small. Here the plaintiff presented evidence that because the restroom could be expanded only by moving plumbing and electric connections the cost was so high accessibility was not readily achievable. The plaintiff provided evidence that the work was cheaper, but the court did not buy it. After a bench trial the claims were all dismissed.

This result was possible only because the case went to trial, which allowed the court to make fact findings about what was readily achievable. Trials are rare in this kind of case because the expense of remediation is so much smaller than the cost of defense, but at least one strategy for dealing with a plaintiff whose settlement demands are unreasonable might be to skip the expensive and usually futile efforts to dismiss the lawsuit under Rule 12(b) or obtain a summary judgment and simply get ready for trial.

Ramirez v. Lococo’s Cucina Rustica, 2018 WL 368559 (N.D. Cal. Jan. 10, 2018) is one more mootness case with the defendant winning for the not very complicated reason that it fixed all the issues. It is interesting because of the Court’s rejection of the plaintiff’s lawyer’s opinions about how to fix restrooms that were apparently too small. It is always tempting for lawyers who know a lot about the technical requirements of the ADA to insert themselves into the litigation; the problem is you can’t be a lawyer and an expert in the same case. Mootness done right will require at least one expert.

Outrage is not a defense.

Salinas v. CBC Rest. Corp., Inc.,  2018 WL 259311  (9th Cir. Jan. 2, 2018) is an appellate opinion whose very existence seems absurd. The ADA violation at issue appears to have been a single checkout counter. The defendants lost on summary judgment, but instead of appealing directly moved for relief from the judgment under Rule 60(b)(6) and then appealed the denial of that motion. It isn’t surprising that the Ninth Circuit affirmed the lower court’s judgment. It is surprising that the defendants spent the time and money required to appeal the judgment given just how small the underlying problem appears to have been.    Somewhere along the line the defendants seem to have forgotten our constant theme, First Fix, Then Fight. Otherwise the litigation process wastes money that could go to remediation.

Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) is a great example of why moral outrage doesn’t provide a real defense to ADA claims from serial filers. The defendants, sick and tired of lawsuits they viewed as meritless by a single serial plaintiff, filed a counterclaim alleging that the plaintiff and attorney were engaged in a conspiracy that violated the RICO anti-racketeering statute. Not surprisingly, the Court dismissed this counterclaim, finding that even filing a frivolous lawsuit would not constitute one of the predicate acts required for a RICO claim. If a lawsuit is meritless the remedy is win the lawsuit and then seek sanctions or file an action for abuse of process. No matter how mad the plaintiff makes the defendant or how “obvious” it is that the plaintiff is abusing the ADA, relief for the defendants depends on proving there are no ADA violations. First Fix, Then Fight is the best strategy for ADA litigation, unless you choose . . .

Surrender as a strategy.

Langer v. Southwest Medical Care, Inc. 2018 WL 456131 (C.D. Cal. Jan. 17, 2018) is representative of a number of default judgment decisions out of California in the last few weeks. In every case the Court reduced the attorneys’ fee claim to an amount lower than is typically demanded to settle these cases. As we’ve observed before,** the absurdity of serial litigation has created a situation in which the least expensive solution to a lawsuit is to simply default because any effort at defense only drives up the total cost. The system is clearly broken when choosing to lose is the best strategy for the defense.

* Personal injury and the ADA – is every violation per se negligence?

** Surrender as a strategy in ADA litigation.


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What is an ADA accessible website? Well, it’s complicated.

By in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access

photo posted on post-gazette.comWhat does it mean for a website to be “accessible?” The standard answer for several years, now embodied in the implementing regulations for Section 508 of the Rehabilitation Act, is that accessible means “conforming” to WCAG 2.0 success level AA. A recent decision from the Eastern District of New York, Andrews v. Blick Art Materials, LLC, 2017 WL 6542466 (E.D.N.Y. Dec. 21, 2017), has a good discussion of why this should be the case, at least with respect to the visually impaired.* However, the focus in Andrews v. Blick Art was whether the terms of a settlement were appropriate, not whether WCAG 2.0 success level AA is what the courts should order.

In the one case that has gone to trial, Gil v. Winn-Dixie Stores, Inc., the court ordered WCAG 2.0 compliance after finding that the defendant’s website was not accessible. The order is interesting because it orders in general terms that the website be accessible and then specifically that it comply with WCAG 2.0, but never says that WCAG 2.0 compliance is equivalent to accessibility and never says what success level is required. This is one of many issues raised by the defendant on appeal, for it argues that because WCAG 2.0 is based on general principles rather than specific mandates the defendant can never be sure whether it has complied.**

This brings us to Eason v. New York State Bd. of Elections, 2017 WL 6514837  (S.D.N.Y. Dec. 20, 2017). Eason is a Title II / Rehabilitation Act case that bypasses the “does the ADA apply” question because Title II entities must make their programs accessible, meaning there is no real doubt that their websites should be accessible. That leaves more complicated questions about just what accessibility means.

The Court’s first observation is that the plaintiff and defendant have very different theories about how to approach the case in the first place. The plaintiff seems to have wanted a broad finding that the website was not accessible with an order for the implementation of policies and procedures to make and keep it accessible. The defendant, on the other hand, had fixed the specific problems listed in the complaint and wanted the case dismissed on the theory that the case concerned only those problems and was therefore moot. The Court rejected both approaches.

It rejected the defense approach because, it found, the complaint was sufficiently open to include accessibility problems other than those listed in it. It also analogized websites to physical facilities, noting that inaccessibility at one place might keep a disabled person from even getting to another place to discover what was inaccessible there.

The Court did not reject the plaintiff’s theory of relief, but did reject the report of the plaintiff’s expert, which it found had a number of problems, the most important of which was a failure to focus on “meaningful access” as opposed to “equal access.” Equal access is, of course, impossible. A blind person cannot under any circumstances equally see an image. What is required, according to the Court, is meaningful or functional access to the services offered on the website.

This focus on meaningful access required a trial according.  The opinion says the Court wants to see how screenreader software works on the website itself to determine whether there is meaningful access. That, it found, depends on things like how long it takes to access a service for a vision impaired person as compared to a person with ordinary vision. It isn’t hard to imagine any number of difficult questions raised by the “meaningful access” standard. If an image is important, how much description is required for a person using a screen reader to have meaningful access. Is “boy and dog” enough, or does it need to specify “boy and dog playing with stick” or “boy and dog playing with stick in the park?” Those are the kinds of questions the Court seems to believe could only be answered by looking at the entire process by which an individual with a screen reader uses a website. This is, by the way, something that good website accessibility consultants agree is true. No algorithmic or software analysis is sufficient. If you want to know whether a website is accessible, you have to test it with humans.

Notably absent is any mention of WCAG 2.0. The Court seems to have adopted an approach that asks the plaintiff to explain where the problems are, the Court looks at the problems to see if it agrees, and then the Court orders that problem fixed as opposed to accepting that problems exist and then ordering WCAG 2.0 compliance as the solution. From a legal perspective this makes perfect sense. The Court can only decide the dispute it has before it, and that dispute involves a particular blind individual who had or might have specific problems with a specific website. Requiring that the website meet some general level of accessibility for the good of all disabled persons is generally beyond the court’s authority in individual private lawsuits.

Although Andrews v. Blick touches on the question of whether WCAG 2.0 is an appropriate accessibility standard, none of these cases delves very far in to the difficult questions raised by the Winn-Dixie appeal. The first of these is how to bridge the gap between general principles and the hard reality of software code and hardware choices. One of the disputes in another recent case, Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017) concerned the ability of low-vision users to see an on-screen button while using the screen zoom function. On screens larger than 23.5 inches it was visible. On smaller screens it was not. Is WCAG 2.0 compliance required for every possible screen size or resolution, or can a business ignore outdated displays and standards? Similar problems exist with respect to the differing capabilities of screen reader software and mobile devices. WCAG 2.0 is supposed to be device independent, but that comes at the cost of not being precise, and a lack of precision is an invitation to litigation.

The ADA standards for access to physical places are “objective,” “precise” and “thorough.”† A business that satisfies them can be certain that its physical facility complies with the requirements of the ADA. WCAG 2.0, for all its commentary and technical resources, ultimately concerns the subjective experience of a particular user, with particular software and hardware, interacting with a website that, unlike most physical businesses, constantly changes. WCAG 2.0 Success Level AA is the best bet for any business website, but cases like Winn-Dixie and Eason are raising questions about what “accessible” means that courts may find difficult to answer when it comes to websites.‡

* This decision is worth reading by any person who wants to understand how websites can be inaccessible, for it includes a detailed description of the problems in the defendants’ website from a functional perspective.

** The appeal is Case No. 17-13467 in the 11th Federal Circuit Court of Appeals. On January 13 the Court of Appeals found the case required oral argument, but it has not yet set a date.

† Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011).

‡ In this regard businesses should note that WCAG 2.0 will be updated this spring to WCAG 2.1, which includes a number of new Success Level AA criteria, including one that would probably fix the zoom problem identified in Del-Orden v. Bonobos. Like any change in accessibility criteria this one begs the question, “if the change is needed, does that mean the earlier standard did not insure accessibility?” Every accessibility technology can be improved and no accessibility standard guarantees complete access for all. When technology is rapidly evolving every effort to find the right compromise is bound to be temporary. Rapid change is not something that Congress, the Courts, or regulators are very good at.


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Weapons of Mass Confusion – meet the ADA and FHA.

By in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA FHA General, ADA service animals, FHA, FHA Emotional Support Animals, FHA Regulation Tags: , , ,

Rocket Man (Mark toon)_edited-1The last ADA / FHA headline that reached my email in 2017 was about a woman in Florida who complained that her “service dog” was not allowed at the pool by her condominium association. It was not an unusual story, but it summed up the way the ADA and FHA, both individually and together have caused confusion for the disabled and businesses that leads to distrust and litigation. To start the New Year I’m presenting a very short primer on the rights these statutes protect and how they relate to each other.

The ADA and FHA protect the rights of the disabled in different places. Title III of the ADA* is designed to make sure that disabled individuals have access to the goods and services sold by every kind of business that is open to the public** except residential sales and rentals. The FHA, on the other hand, is intended to make sure disabled individuals have equal access to housing. When the woman in the story I mentioned above says that the ADA gave her the right to have her dog at the pool she was confusing the ADA and FHA. A condominium swimming pool that is not open to the public is not governed by the ADA because it is not a public accommodation. It is governed by the FHA because it is associated with housing. Both the FHA and ADA have rules about service dogs, but they aren’t the same because they apply in different places.

Speaking of service dogs, this is another area in which confusion reigns. The ADA generally requires businesses to admit “service dogs” and “service miniature horses.” In either case the animal must have special training to help with the disability of the individual. Guide dogs for the blind are an example. Admission is required despite the fact that animals can be disruptive in public places because a disabled person generally cannot function without his or her service dog or miniature horse, and because the training of these animals includes socialization and correct behavior in public. The FHA, on the other hand, creates rights for the disabled not only for service dogs and miniature horses, but also for “comfort” or “therapy” animals of every kind. These need not have special training  as long as they are needed for the disabled individual to use and enjoy their housing. For example, a person with anxiety disorder may not be able to sleep without a comfort animal nearby. The FHA is less restrictive because the untrained animal is only needed in the apartment or house and is not exposed to the public. This becomes tricky when the resident claims the animal is needed to allow access to a related facility, like a pool. Can a disabled resident enjoy the pool if his or her therapy animal is left behind in the apartment? That depends on the nature of the disability and the reason the animal is needed in the first place.†

How about service animals in training? Here again the prospects for confusion are considerable. The ADA does not require that service animals in training be allowed in public accommodations precisely because until they are trained they are not useful to or required by the disabled person. On the other hand, if the training involves living with the disabled handler then the FHA requires the animal be permitted even if, at present, it is not really doing anything useful at all.

This housing v. public accommodation difference isn’t always perfectly obvious. Hotels are public accommodations even though people live in them for some period of time. Student housing is always temporary, but some courts say dormitories are subject to the FHA. Housing, temporary or not, is a frequent source of confusion for builders. The ADA requires that in larger hotels or inns 5% of the rooms be completely accessible – meaning that they must have grab bars and even roll in showers for example. The rest of the rooms generally need not have this level of accessibility. The FHA, on the other hand, requires that every apartment be somewhat accessible, but does not require things like grab bars or roll-in showers. I have had any number of apartment developers assure me they complied with the law because five percent of the units were “ADA” units even though the other 95% did not meet the standards in the Fair Housing Act. Apartments must comply with the FHA, hotels must comply with the ADA and some kinds of housing must apply with both. Knowing which law applies makes a difference.

Knowing which law applies also matters when it comes to existing conditions that violate the statutory standards. The ADA requires that any business owner or operator correct conditions that are barriers to access for the disabled as long as it is not unreasonably expensive or difficult. That obligation applies to every public accommodation, no matter how old it may be and to every owner and operator, even if they just took over last week. The FHA, on the other hand, does not require that any owner except the original owner fix accessibility problems, and applies in any case only to buildings constructed after its effective date. We regularly get calls about individuals who want their landlord to fix an accessibility problem that would need correction in a public accommodation, but for which the current owner and management company for an apartment complex have no obligation to fix unless the tenant will pay for it.

Sometimes, of course, both laws apply. The leasing office of an apartment complex offers services to the residents. That makes it an FHA facility. The leasing office is also open to the public. That makes it an ADA public accommodation. The rules for accessibility in such areas are slightly different, with the ADA rules being a little more restrictive. That architect who designed the “ADA” apartments should have put his knowledge of the ADA construction standards to use in the leasing office.

A related problem concerns model homes. The FHA design standards apply only to multi-family buildings‡ but when a single family residence is used as a model home open to the public it can become an ADA public accommodation. Single family homes and duplexes are rarely designed with accessibility in mind, and this can create real problems.

What about the pool? A condominium or apartment pool is not generally open to the public, and the standards for pool accessibility under the FHA are much easier to meet than the ADA standards for a public pool. However, if the apartment or condominium allows the pool to be rented by non-residents it becomes, at least while it is rented, a public accommodation. That means, among other things, it must have a built-in pool lift. This can be a problem in single family developments where a pool facility owned by the homeowners association is rented to non-residents.

Finally, even the language of the ADA and FHA can be confusing. The FHA requires that apartment owners or managers be willing to do two things, make reasonable accommodations in policies and procedures and make reasonable modifications to the physical premises. That’s “accommodation” v. “modification.” The ADA, on the other hand, talks about “modification” of policies and procedures. When someone asks about a “reasonable modification” in the ADA context it means something completely different than in the FHA context.

None of this confusion is really necessary, but unfortunately the FHA is administered by the Department of Housing and Urban Development, Title III of the ADA is administered by the Department of Justice, and many businesses of all kinds rely on architects, contractors or (horror of horrors) the internet to determine just what their obligations might be. With two different administrative agencies, two statutes and thousands of pages of regulatory material this is one of those areas in which, unfortunately, you really need a lawyer familiar with the statutes and regulations.

NOTE: that last sentence means this may be an advertisement or means of self promotion. But you already knew that, didn’t you?

* I’m only going to discuss Title III of the ADA, which is the part that applies to public accommodations – that is, businesses open to the public. Titles I, II and IV cover disability rights in other contexts.

** Whether this includes internet businesses is still an open question, but it certainly includes every business with a physical location open to the public.

† An additional layer of confusion is created by the Air Carrier Access Act, which has its own rules about service and other animals, as well as by Title I of the ADA, which asks different questions about the animal in an employment context.

‡ Basically, four or more units under one roof.

Thanks to Mark du Toit for the cartoon. His website is www.marktoon.co.uk


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