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

Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA

November 6, 2013 By richardhunt in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants

Just a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11^th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11^th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.

The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. More