Does this look like a “service, program or activity?” The official position of the Department of Justice is that every city facility – sidewalks, buildings and the like – must be made accessible because building and maintaining those facilities is a “service, program or activity” of the city. The Fifth Circuit agreed in what has been a leading case on this issue, Frame v. City of Arlington. Now it appears this view is not unanimous. Just a month ago, in Babcock v. Michigan, 2016 WL 456213, (6th Cir. Feb. 5, 2016) the Sixth Circuit found that the Fifth Circuit was wrong, and that:
Accessibility Litigation Trends
Dialing for Dollars – Fair Housing advocacy or just a business?
By Richard Hunt in Accessibility Litigation Trends, FHA, Multi-Family, Policies and Procedures FHA ADA Tags: FHA Litigation, FHA Policies, service animals
CityVision Services, Inc. has recently filed a number of complaints with HUD under the Fair Housing Act. Those I am familiar with all follow the same pattern. Someone from CityVision calls an apartment complex asking about pet deposit policies and then mentions a therapy animal. The manager or leasing agent makes the mistake of saying all animals require a pet deposit. No one ever comes to the complex or makes a rental application, but CityVision files a Fair Housing complaint on its own behalf as a “tester.” The apartment owners I’ve spoken with were all located in East Texas, but the extent of this particular effort by CityVision Services is impossible to tell because HUD complaints are not public. More
Hot off the presses – ADA governs the internet, maybe.
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access, Internet, Internet Accessibility Tags: ada litigation, ada violation, WCAG 2.0, World Wide Web
On February 9 Magistrate Judge Katherine Robertson issued a 45 page decision denying a Motion to Dismiss in National Association of the Deaf v. Harvard University, Case No. 3:15-cv-30023-MGM in the District of Massachusetts. This is not the place for a detailed analysis of the opinion, but for ordinary businesses there is quite a bit less to this than some sources suggest.
The first statute discussed in Magistrate Robertson’s opinion is Section 504 of the Rehabilitation Act. This statute applies to programs or activities receiving federal assistance. While federal assistance programs are pervasive, the vast majority of businesses are not subject to Section 504, and so the arguments concerning its application don’t apply at all. More
The ADA and safety – beyond accessibililty to damages.
By Richard Hunt in Accessibility Litigation Trends, Damages, personal injury Tags: ada litigation, negligence, private lawsuits, private litigants
A recent case from Maryland, Bray v. Marriott Int’l, 2016 WL 319873, at *1 (D. Md. Jan. 27, 2016) serves as a reminder that violations of ADA accessibility standards may also serve as evidence of negligence in a personal injury case. When I last wrote about this subject in 2013 (click the following link to read my post Personal injury damages for ADA violations – it can happen.) the case law covered the spectrum from ADA violations being prima facie proof of negligence to ADA violations being no evidence at all of negligence. At the same time, it appears likely that compliance with the relevant ADA standard for physical accessibility cannot be considered negligence because the ADA preempts differing state law standards (click the following link to read my post Pool lifts and preemption of state tort claims.) Bray adds another jurisdiction to the list of those in which an ADA violation is evidence of negligence. More
Accessibility surveys – opportunity or trap?
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Policies, Privilege for accessibility surveys Tags: ada litigation, attorney client privilege, FHA Litigation
My clients often ask about whether doing a survey to determine ADA or FHA compliance will simply set them up for damages based on a “knowing” violation of the disabilties laws. My advice is almost always no, because the ADA and FHA are no-fault statutes when it comes to physical accessibility. Ignorance is no defense. A recent case from a district court in Pennsylvania looks at the same problem in a different way: Can ADA or FHA surveys be protected from disclosure as attorney work product or even privileged documents. Heinzl v. Cracker Barrel Old Country Store, Inc., 2015 WL 6604015, at *1 (W.D. Pa. Oct. 29, 2015). I think it is worth asking another question — do you want these documents to be privileged? More