“All things are subject to decay and when fate summons, monarchs must obey,” wrote John Dryden, the English playwright and poet. He probably wasn’t thinking of potholes and buckled sidewalks, but the sentiment remains true. Even if you build the perfect FHA compliant facility, time will create barriers to access that were never intended. Although the FHA does not have a barrier removal provision like the ADA, the failure to maintain a multi-family housing project can violate the FHA’s provisions concerning program discrimination.
Accessibility Litigation Trends
The Blob – FHA Litigation that is just too big to finish
On April 30, 2008 a group of institutional plaintiffs sued a collection of architects and owners of mixed use properties claiming violations of the accessibility provisions of the Fair Housing Act. Miami Valley Fair Housing Center, Inc. et al v. Steiner + Associates, Inc. et al, Case No. 3:08-cv-00150 (S.D. Ohio). More than four years later, on December 10, 2012, the parties entered into a stipulated judgment that called for an agreed scope of remediation of the three properties named in the original complaint. The case is an example of what I think of as the “too big to finish” problem in FHA litigation. The case as filed was so big, and included so many parties, that it became a procedural quagmire instead of an efficient means to resolve accessibility problems.
In September of 2008, five months after the case was filed the parties all requested that the Court stay the litigation while their respective experts inspected the properties at issue. The stay was extended for an additional 90 days by a stipulation filed on January 29, 2009. It isn’t clear what the delays accomplished, but on August 8, 2009, more than a year after the case was filed, the Court finally entered a pre-trial order setting the case for trial in December of 2010. More
Your front porch – is everybody welcome?
On March 7 of this year the District Court for Colorado granted a summary judgment in a class action challenging the design of the front porch at the entrance of most Hollister stores. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 2013 WL 856510 (D.Colo. 2013). There are several good discussions of the merits of the case, including Julie Mills’ blog at juliesmills.typepad.com, but what struck me was the irony of the fact that the first thing a disabled shopper encounters at a Hollister store isn’t very welcoming. Of course this nationwide class is enough to get anyone’s attention, but it has one thing in common with the vast majority of ADA and FHA cases concerning physical barriers to access. They all seem to start at the front door. More
Testers and the ADA — does motive matter?
Most lawsuits brought under the ADA are brought by “testers” that is, individuals whose primary motivation is not to take advantage of particular goods and services, but rather to discover whether a particular facility complies with the ADA. This fact offends many defendants, and seems to defy the constitutional requirement that the plaintiff have suffered an actual injury. As a result, motions to dismiss that are based on the plaintiff being a tester are common. It took me very little time to find four decisions in 2013 that discuss tester standing, and more than 10 in 2012. In some of these cases the complaint was dismissed for lack of standing, but not in all. While some defendants raise the “tester” argument as if it were a generic fault, in fact its application requires careful analysis because ADA claims require not only a past injury, but also a likely future injury. More
Obesity and disability – demographics will drive litigation.
The obesity epidemic that attracts so much attention in terms of public health serves as an additional reason for businesses and property owners to pay attention to ADA and FHA accessibility issues. The statistics are well known and striking. In the last 40 years obesity (Body Mass Index >30) has increased from around 12% to more than 30% of the population. Extreme obesity (Body Mass Index > 40) has increased from around 1% to more than 6% of the population. (http://win.niddk.nih.gov/statistics/index.htm) If current trends continue, extreme obesity will become as common as mobility disabilities, which affect around 7.5% of the population (http://www.pascenter.org) . More