Many lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA) must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA. More
Accessibility Litigation Trends
One common bit of conventional wisdom under the FHA is that apartments and other housing providers cannot require a pet deposit for an assistance animal or service animal. This is certainly the position of HUD and the DOJ. (See, HUD memo dated April 25, 2013 and see http://www.ada.gov/qasrvc.htm). The position is based on the notion that because a disabled person is required to have a service animal it is discriminatory to require anything of such a person that would not be required of a person without a disability who had no pet. See Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., 2011 WL 2945824 (D. Idaho 2011). The question of whether it indeed violates the FHA to require what would be more rationally called an “animal damage deposit” is really more nuanced than this. More
A pair of recent district court decisions provide some hope for defendants that federal courts are taking seriously the plaintiff’s obligation to plead an intelligible claim for relief. Unfortunately, the standard is still fairly low, and will only slightly limit cookie cutter lawsuits based on generic allegations. Nonetheless, ADA defendants will want to study the cases when confronted by a plaintiff whose settlement demands are so unreasonable that a substantive defense makes economic sense. More
Many modern building codes incorporate accessibility requirements that parallel or even exceed the requirements of the FHA and ADA. In fact, the regulations implementing the accessibility provisions of the Fair Housing Act identify as safe harbors the provisions of several versions of the International Building Code. It is hardly surprising then that property owners and contractors believe that getting a certificate of occupancy means the building complies with the FHA or ADA. Nonetheless, getting a C.O. is no guarantee of compliance with the law and no proof against litigation. The reasons are largely practical, but there is a legal dimension as well when it comes to placing the blame for a failure to comply. More
In the classic Kenny Rogers song “The Gambler” a mysterious stranger advises him to “know when to hold ’em, know when to fold ’em, know when to walk away and know when to run.” You can’t walk or run away from an ADA lawsuit, but a spate of new decisions illustrate the dangers of not knowing when it is time to stop fighting and start settling.
I’ll start with Kalani v. Nat’l Seating & Mobility, Inc., 2014 WL 1665226 (E.D. Cal. Apr. 25, 2014), a typical ADA lawsuit claiming problems with parking and an accessible restroom. The defendant contest the truth of the plaintiff’s allegations, arguing instead that some of the evidence in a summary judgment proceeding was inadequate. After thinking the matter over in a Motion for Reconsideration the Court granted the plaintiff statutory damages under California’s Unruh Act. The damages were not large ($4,000), but as other cases show choosing to fight on procedural rather than substantive grounds can cost far more when it comes time to award the plaintiff attorney’s fee. And of course all the money spent on the non-substantive defenses was completely wasted.
Griffin v. J.A.R.S., LLC, 2014 WL 1600315 (S.D. Fla. Apr. 21, 2014) is another decision that might be regarded as a prelude to the fight over attorney’s fees. In Griffin the defendant claimed that the complaint was inadequate because it referred to violations of “Section 208” of the ADA standards. As examples the defendant cited specific parts of Section 208 that would not apply to the defendant. The Court was not impressed, writing that:
Defendants point to parts of Section 208 that they have picked and chosen and that they know do not apply to them and use those aspects of the Standards to argue that Section 208 as a whole does not apply to them when they know full well that the general parts of Section 208 do appear to apply to them. Worse yet, they appear to attempt to hide the relevant parts of Section 208 by attaching only the irrelevant parts of the Standard to their Motion. This does not comply with the duty of candor to the Court, and it is frivolous at best and disingenuous at worst. Defendants’ other challenges to the Complaint are similarly without basis, and the Court will not belabor this Order further pointing out the faults with them.
Losing this particular motion to dismiss probably stung, but losing the Court’s confidence in the defendant’s honesty is likely to be very expensive in the long run.
Lema v. Comfort Inn Merced, 2014 WL 1577042 (E.D. Cal. Apr. 17, 2014) is a case in which the defendant’s tactics resulted in a higher award of attorney’s fees to the plaintiff. In Lema the defendants refused to settle the substantive claims in the lawsuit because the plaintiff failed to produce billing records. The defendants argued that without the records they could not settle the attorneys fee claims. The court, which referred to the defendants’ “extensive delaying tactics,” refused to adjust the plaintiffs fees on this basis. It noted instead that if the defendants had settled the substantive claims — which did not seem to be disputed — they would have eliminated the cause of action giving rise to attorney’s fees and thus limited further fees. By refusing to settle the substantive claims the defendants gave the plaintiff to continue incurring recoverable fees.
Finally, in Hernandez v. Grullense, 2014 WL 1724356 (N.D. Cal. Apr. 30, 2014) the defendants managed to turn a judge with grave doubts about the plaintiff’s attorney’s claim for fees into an award of very high fees simply because they refused to admit the obvious; that is, that the property was not ADA compliant. To understand the case it is helpful to start with the Court’s attitude toward the plaintiff’s lawyers:
This motion presents the problem of determining a fair award in an uncomplicated ADA matter to an experienced law firm that has been repeatedly criticized for the same unreasonable billing practices that it used in this case.