DOJ announces that there is no safe harbor for physical accessibility.

July 19, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA Internet, ADA Internet Web, ADA regulations, ADA rulemaking, Hospitality, Hotels, Inventory requirements Tags: accessible beds., ADA defense, FHA Defense, Hotel beds, Migyanko v. Aimbridge

boat at anchor in a quiet lagoon Early last month the Department of Justice filed a “Statement of Interest” in Migyanko v. Aimbridge Hospitality LLC¹ that should give pause to every business subject to Title III of the ADA; that is, every business. Two sentences from the Statement of Interest are of particular concern:

“The ADA Standards do not address every aspect of physical accessibility.”

and

“Of course, in the absence of specific requirements for bed height, hotels have some degree of flexibility in making reasonable modifications to provide usable beds for a person with a disability. This flexible standard is inherently fact-specific.”

To understand why these innocuous statements are of such concern requires a look at this case and the problems created when DOJ declares that something is discriminatory without defining what discrimination means. More

Dialing for Dollars – Ninth Circuit encourages abusive ADA litigation

September 11, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Standing, ADA FHA Litigation General, ADA Policies, Hospitality, Hotels Tags: ADA, ada litigation, CREEC, dialing for dollars, drive-by lawsuits, Hospitality Partners, Ninth Circuit, serial ADA litigation

In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More

Vending machines and the ADA

January 5, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA Point of Sale, ADA Vending Machines, Hospitality, Public Facilities Tags: ADA, NAMA, National Automatic Merchandising Association, Point of Sale, Vending Machines

Even after 25 years of regulation and litigation ADA obligations are still often uncertain. Does the ADA require that vending machines be accessible to the blind and if so what does that mean? It really isn’t clear at all.

In McGee v. Coca Cola Refreshments USA, Inc., 2015 WL 6620959 (E.D. La. 2015) the court held definitively that a Coca Cola vending machine is not, by itself, a place of public accommodation covered by the ADA. It noted, however, that the bus station in which the machine was located was a place of public accommodation and might well be obligated to provide accessible vending machines. The case was decided early, so there is no guidance as to what accessible means. More

Gluten free for free? An ADA and P.F. Chang’s update

December 7, 2015 By Richard Hunt in Accessibility Litigation Trends, ADA regulations, Hospitality, Reasonable accommodation, Restaurants Tags: ADA, celiac disease, P.F. Chang's, restaurants

I reported in September on the decision in Phillips v. P.F. Chang’s China Bistro finding that a plaintiff with celiac disease had not stated a claim for discrimination under the ADA based on P.F. Chang’s policy of charging $1.00 extra for gluten free meals. On November 23, 2015 the same court found that the plaintiff had stated a claim based on an enhanced set of allegations in her Amended Complaint. Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 7429497, at *1 (N.D. Cal. Nov. 23, 2015). This is a very common pattern in ADA litigation: Once the plaintiff knows what to say, he or she is almost always willing to say it in order to get past a Motion to Dismiss. For restaurants and their owners this latest decision requires some thought and possibly the adoption of new policies concerning menu items. More

Trash talk – ADA problems in the restroom.

June 4, 2015 By Richard Hunt in Accessibility Litigation Trends, ADA, Hospitality, Restaurants, Retail Tags: ada litigation, ADA Policies, restaurants, retail

Last week I wrote about the ADA problems created by point of sale displays. The same case, Kalani v. Starbucks Corp., 2015 WL 846651, at *4 (N.D. Cal. Feb. 25, 2015), includes a warning about trash cans and restrooms.

In many older buildings, including those built after the ADA standards went into effect, restroom size is a serious problem. Because of plumbing issues restrooms are difficult to expand or move, and the location of the toilet and sink may be fixed for all practical purposes. When local codes permit it, turning two restrooms into a single unisex restroom may help, but in many cases restaurants and others with ADA restroom problems seek to comply by building the smallest permissible restroom. More