In some ways the 9th Circuit’s recent decision in Kalani v. Starbucks Coffee Co., 2017 WL 2813864, at *1 (9th Cir. June 28, 2017) is one of the saddest in the long history of ADA litigation. Robert Kalani was a mild kind of serial plaintiff who filed 15 cases in the Northern District of California over a period of several years. The most seriously litigated was his lawsuit against Starbucks, which claimed in part that point of sale displays encroached on the clear counter space required by the ADA. Now it is almost over, revealing both the minimal impact that individual lawsuits have on accessibility and the incredible waste of money involved in defending such cases. More
Billy Joel had a major pop hit in 1977 with “Get it Right the First Time” from “The Stranger.” Forty years later Starbucks has proven just how true this is. In Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) the Court reminded Starbucks and every other public accommodation that “get it right the next time” is not the same thing as getting it right the first time. In fact, it is the difference between winning and losing.
The issue of interest in Crandall v. Starbucks concerned access to a counter that was blocked by a point of sale display. This is not a first for Starbucks as we described a couple of years ago in POS Marketing and ADA Compliance – you can’t have it both ways. In the earlier Kalani v. Starbucks case the defense was that POS sales items were only temporary barriers because they could be easily removed. The Court disagreed because, in its view, the POS displays were intended to be permanent even though they could be moved.The displays at issue in Crandall were a standing display placed so close to the counter that it intruded into the required 36 inches of clearance as well as displays on the counter itself. Some time after the lawsuit was filed the standing display was moved out of the way and the counter displays were removed. This, according to Starbucks, eliminated the need for any relief and required a defense summary judgment.
The Court disagreed, noting that the changes were not structural or permanent because the displays at issue were easily movable. Equally important, there was no evidence that Starbucks had adopted any policy against on-counter displays or concerning the placement of merchandise displays. Because Starbucks could re-create the barriers to access at any time the case was not moot.
So far, so bad, but worse was coming. The Court found the existence of a violation at the time the plaintiff visited and on two later occasions was established as a matter of law, refused to credit Starbucks’ argument that its employees would always move the displays to a correct position, and granted summary judgment for the plaintiff. “Get it right the first time” and there’s no lawsuit at all. “Get it right the next time” and you’ll be paying the plaintiff’s attorneys fees while contemplating a permanent injunction. In cases involving things like displays that employees place and move, getting it right the first time means having a policy in place before there is a lawsuit that requires employees to maintain an accessible premises.*
Crandall v Starbucks includes a complaint that the required route was not 36 inches wide, but it seems the Court granted summary judgment for the plaintiffs because it was undisputed “that when there are customers in the store the displays make the path of travel too narrow.” Id. at *14. The Court also found that accessible routes might be blocked in the future based on the “absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel.” In both cases the problem identified by the Court is not any structural feature of the restaurant, or even a problem with where the furniture was placed by the staff, but rather a problem with the conduct of other customers.
It isn’t difficult to imagine that in an informal space like a coffee house or bar customers will feel free to move chairs and even tables, and may congregate in areas that are part of an accessible route. The ADA prohibition on “discrimination” applies to the design and construction of public accommodations and the removal of “architectural barriers and communication barriers that are structural in nature.” It doesn’t say anything about regulating the behavior of other customers. Starbucks has not been afraid in the past to take cases to the Ninth Circuit, and it would be nice in this case to get a definitive rejection of the notion that businesses are required to regulate customer behavior in order to comply with the ADA. In the meantime, businesses that are crowded or are pushing the limits of accessibility should be be careful.
*In a ruling this week a Magistrate Judge in the Western District of Pennsylvania approved class certification for a lawsuit against Steak & Shake that appears to rest primarily on a failure to properly maintain its parking lots. Last year this time we blogged about a similar lawsuit against Cracker Barrel restaurants brought by the same law firm. Does the ADA Require a Compliance Policy? Every temporary barrier caused by a lack of maintenance can turn into a permanent injunction if the right policies are not in place before a lawsuit is filed.
Three interesting decisions, and a news report were published last week that deserve attention, but really don’t need a lengthy discussion. First, in Natl. Assn. of the Deaf v. Harvard U., 2016 WL 6540446, at *2 (D. Mass. Nov. 3, 2016) the Court adopted the earlier Magistrate Judge’s recommendation against dismissal claims against Harvard for failing to caption its on-line video courses. The case will now continue into discovery or, more likely, settle as the costs of defense become unreasonable when compared to the cost of settlement. A related news story , Pitt Professor Sues Southside Works Cinema discusses a lawsuit based on the lack of closed captioning at a local movie theater. As with internet access, closed captioning in theaters is an area in which DOJ’s failure to regulate has created a situation in which litigation is going to define the requirements of the ADA because DOJ is incapable of figuring out how to make a good rule. I’m sympathetic to the difficulties face by DOJ after reading through the mass of requirements imposed on the regulatory process (see, Fed. Reg. vol. 79, pages 44976 to 44514), but these regulations were first announced in 2010. The regulatory process simply cannot keep up with the rapid pace of technological change, and so DOJ has adopted the far more inefficient and regulatory method of letting the requirements of the ADA be set through hundreds of different judicial decisions whose outcome depends not only on the quality of the judge, but also the quality and position of the litigants. If DOJ cannot regulate the details of accessibility, it should at least provide that accessibility is not required until those details are provided.
The inefficiency and sometimes outright stupidity of ADA litigation is perfectly illustrated by Love v. Sanchez, 2016 WL 6683152 (C.D. Cal. Nov. 14, 2016). The plaintiff alleged, correctly, that the defendant lacked accessible parking. Defendant provided a space, but did it wrong. Plaintiff obtained an expert report to that effect and filed a motion for summary judgment. Defendant hired an expert and made the space compliant except, perhaps, for slightly excessive cross slopes at two locations. Plaintiff hired a new expert who found those excessive cross-slopes. Defendant’s expert disagreed and, at the end of the day, the Court denied the motion for summary judgment because it could not determine the fact question as to which expert was right.
Conceding that the lawsuit had the beneficial effect of persuading the defendant to put in an accessible spot, consider the time and money spent afterwards quibbling about the difference between a 2.8% and 2.0% cross slope. The plaintiff’s motive was simple. His attorneys would not be paid unless they won. The defendant’s motive was equally simple. Losing would more than double his liability because he would also have to pay the plaintiff’s attorney’s fees. The focus of the lawsuit, almost from the beginning, was on payment for the attorneys, not accessibility for the disabled. This is a perpetual theme in ADA litigation, with access for the disabled usually taking second place to profits for the lawyers.
A third decision concerned public restrooms; or more accurately, a former public restroom. In Ramirez v. Golden Crème Donuts et al., 2016 WL 6648699 (9th Cir. Nov. 10, 2016) the Ninth Circuit reminded us that the ADA does not require public restrooms in public accommodations, and that closing a restroom to the public is one way to solve the problem of non-compliant restrooms. This is true even when local ordinances may require public restrooms because compliance with local law is a matter between the business and local authorities in which the federal courts will not ordinarily participate. Restroom renovation is frequently the most complex and expensive part of ADA compliance, so the quick fix of closing the restroom may be a good option in avoiding litigation even though in the long run the expense is unavoidable.
20 or more times a day an ADA claim is filed in Federal Court somewhere in the United States. This has been true for decades, and yet non-compliance appears to be as prevalent as ever. Maybe it’s time to re-think the way the ADA is enforced.
Fight fight fight fight fight. It’s a great way for lawyers to make money, but it may not be the best way to win an ADA case. A look at the cases shows why having a good ADA policy and the right attitude toward ADA violations are critical in the defense of an ADA case.
We can start with the contrast between Moras v. Albertson’s LLC, 2016 WL 5661985 (D. Idaho Sept. 29, 2016) and Heinzl v. Cracker Barrel Old Country Stores, Inc., 2016 WL 2347367 (W.D. Pa. Jan. 27, 2016). Both cases involved chain stores with multiple locations and accessibility problems in their parking lots. In both cases the defendant moved for summary judgment based on having corrected the ADA violations, and in both the plaintiff conceded that the remediation work had been done. Beyond that, however, there were significant differences in the two defendants’ approach to the cases. More