The decision in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790 (S.D. Ohio Sept. 28, 2018) has the potential to create a significant change in how FHA design/build cases are litigated. It also provides litigants with a treatise on the most important evidentiary issues faced by both plaintiffs and defendants. The critical take-away for apartment owners and developers is that proof of deviations from the various FHA safe harbors is not conclusive evidence of an FHA violation. That means defendants who own or build apartments that are accessible but have technical deviations from FHA design/build safe harbors will be given the chance to talk about what matters to the disabled, that is, accessibility. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, First Fix Then Fight Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA pleading, ADA serial litigation, FHA Defense
The last couple of weeks brought a variety of decisions, most falling in to one of the familiar patterns for ADA and FHA litigation, but one or two presenting novel defenses and interesting judicial reactions.
A very interesting question of standing.
Johnson v. Castro et al, 2:16-CV-00658-MCE-DB, 2018 WL 2329249, at *3 (E.D. Cal. May 23, 2018) makes a very interesting point about standing, one related to some of the standing questions raised by other recent cases dealing with the plaintiff’s ability to take advantage of the goods and services of a public accommodation.** In Johnson the plaintiff suffered from cerebral palsy and made various claims concerning entrances and access to the restrooms. In response to the plaintiff’s motion for summary judgment the defendants provided evidence that the restroom issues had been remediated and challenging the existence of a problem with the doors. They added that the plaintiff’s disability was so severe he could not eat or drink without assistance from the restaurant owner, who cut up his food and fed him at the table. The owners argued that the plaintiff was incapable of taking advantage of the restaurant without help they were not obligated to provide and therefore could not prove any accessibility had caused him harm. The Court found this at least raised an issue of fact:
“Consequently, Defendants raise a question of fact as to whether Plaintiff legitimately could have eaten at the Restaurant without assistance going well beyond any accessibility requirements mandated by either the ADA. . .”
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA FHA Litigation General, ADA Internet, ADA Internet Web, ADA Litigation Procedure, FHA, Internet Accessibility Tags: ADA standing, Fair Housing Act, Group Homes, internet accessibility, Quick Hits, World Wide Web
April is the cruellest month according to T.S. Eliot†, but it was really just busy for my practice and the courts. Here’s part one of our update on important decisions in the ADA and FHA world. We expect to be caught up after a long weekend of blogging and a couple of additional installments. More
Yesterday (March 27, 2018) the National Fair Housing Alliance and other fair housing groups sued Facebook for alleged violations of the Fair Housing Act.* The lawsuit seeks a sweeping expansion of the FHA by creating liability for those who “facilitate” discrimination even though they do not engage in it directly. The issue is not new, but the effort to hold Facebook responsible for its advertisers is.**
First though, a little background. Section 804(c) of the Fair Housing Act (42 U.S.C. §3604(c)) prohibits making, printing or publishing discriminatory advertisements. This prohibition can apply not only to the person who places the ad, but also to the person who prints or publishes it. When Facebook puts an ad on someones Facebook page it is publishing the ad, and so it could have some responsibility if the ad is discriminatory. More