When a Court refers to the case before it as a “sad commentary on the litigious nature of our society” you can be fairly sure that one party or the other is going to do badly. In Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 2014 WL 988767 (S.D.Fla. 2014) it was the owner of a condominium development who decided to rely on superficially clever lawyering instead of common sense. The disabled individual who sought a service dog didn’t fare well either, but was, in the end, the winner. The case should be helpful to property owners and managers as they sort through what they can and cannot ask about when confronted with a reasonable accommodation request. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Landlord-tenant, Reasonable accommodation, Restaurants, Retail, Shopping Centers Tags: ada litigation, DOJ, Landlord-tenant, private lawsuits, real-estate, restaurants, retail
NIMBY (“not in my back yard”) litigation is common under the Fair Housing Act. An organization that serves recovering addicts or individuals with mental disabilities will try to locate in a neighborhood where deed restrictions or zoning prohibits group homes and find its efforts blocked by the city or homeowners association because the neighbors don’t want “undesirable” individuals living in the area. Commercial landlords subject to the Americans with Disabilities Act can face the same kind of pressure not to rent to tenants who serve the disabled. A landlord who succumbs to pressure from other tenants, or makes a leasing decision based on assumptions or stereotypes may find itself on the losing end of a lawsuit or a DOJ investigation.
Special Educ. Services v. Rreef Performance Partnership-I,L.P, 1995 WL 745964 (N.D. Ill. 1995) perfectly illustrates a typical situation. The plaintiff (“SES”) operated a school and vocational education facility for developmentally disabled children. At the expiration of its lease the defendant landlord refused to renew. It claimed to have legitimate business reasons, but they were all tied in one way or another to the disabilities of the children or their needs. It complained, for example, that the busses transporting the children blocked parking places, that the children generated excessive complaints about noise or playing games in the parking lot, and, perhaps most telling, that the location was not “an appropriate place” for for children. What the plaintiff did not do was make any effort to accommodate the cause of the problems, or even to address them with SES until it refused to renew the lease. The district court had little difficulty finding that SES would probably prevail in its lawsuit and granted an injunction against eviction.
The DOJ’s involvement in this kind of commercial leasing can be found in its handling of a case by Sinergia, a non-profit that operated an facility to help the mentally disabled. When a landlord refused to rent to it because other tenants complained the DOJ stepped in. The result was a consent decree that included a $75,000 payment to Sinergia and a court order compelling the landlord to comply with the ADA.
What can a landlord do when faced with the tug-of-war between concerns about other tenants and customers and the requirements of the ADA? There are four key things to remember:
- First, the landlord must understand that tenants who serve those with disabilities must be given special treatment. In the language of the statute, they must be given reasonable accommodations. For an ordinary tenant, violations of lease requirments or disruptive behavior by the tenant’s customers might well justify a refusal to renew or, if serious enough, a reason to evict. If those same concerns are the related to disabilities of the tenant’s customers the landlord cannot rely on its right to refuse to renew. Instead the landlord must engage in a conversation with the tenant in which the landlord seeks solutions; otherwise non-renewal or eviction are likely to be seen as discrimination.
- Second, the landlord must document its efforts to accommodate tenant problems related to disability. The landlord in the SES case had legitimate concerns about SES as a tenant, but it did nothing to express those concerns until it decided not to renew the lease. This kind of passive-aggressive behavior will not be accepted for tenants protected by the ADA. The landlord must document its efforts to deal with tenant problems so that it is clear when the inevitable lawsuit is filed that the landlord’s concerns were not merely a pretext for disability discrimination.
- Third, when considering a new lease the landlord needs to carefully consider whether its concerns are based on stereotypes about those with disabilities. A landlord may believe that recovering addicts are more likely engage in criminal conduct than ordinary customers, but if it refuses to lease to an addiction recovery organization it must be prepared to prove in court that this is a fact. It cannot rely on “common knowledge” about the matter.
- Finally, the landlord considering a new tenant must also consider what reasonable solutions it might find to any real problems it may face. If the tenant uses busses, as was the case in SES, the landlord must make an effort to deal constructively with the parking problem rather than merely refusing to sign a new lease or renew an old one. Again, dialogue with the prospective tenant is critical, and must be focused on finding solutions rather than using problems as an excuse not to sign a lease.
At the end of the day the ADA’s requirements for dealing with tenants who serve the disabled are not much different than the best practices in commercial leasing; that is, work with tenants to solve problems. The difference is that refusing to engage in constructive dialogue with a tenant protected by the ADA can result in a lawsuit, an investigation by the Department of Justice, and possibly a steep fine as well as money spent on lawyers. For ordinary tenants being reasonable is optional; for ADA tenants it is the law.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, Policies and Procedures FHA ADA, Reasonable accommodation Tags: ADA Policies, assistance animals, FHA Policies, private lawsuits, restaurants, retail, service animals
On January 31 of this year the Department of Justice published a new guidance (www.ada.gov/opdmd.pdf) on the use of mobility devices other than wheelchairs. Business owners cannot avoid paying attention to the guidance despite the fact that the DOJ has taken a position that is diametrically opposed to the existing judicial decisions regarding Segways as well as a class action settlement involving Segways at Disney theme parks. As is too often the case the guidelines invite litigation by requiring that businesses do more than is possible when trying to decide how to accommodate disabled visitors.
This guidance appears to be a reaction to several lawsuits that reached results DOJ did not like. The largest in scope was Ault v. Walt Disney World Co., 692 F.3d 1212 (11th Cir. 2012). In Ault the 11th Circuit approved a class action settlement in which Walt Disney World was allowed to ban 2 wheeled devices, including Segways, from use in its theme parks. The suit was brought under the ADA by a guest with a mobility impairment who wanted to use her Segway because she was unable to walk the distances required at the theme park. The settlement allowed Disney to continuing banning Segways, even for those with mobility impairments, in exchange for a promise to develop a 4 wheeled stand up vehicle. The settlement was approved in part because the District Court found that safety concerns were such that the plaintiffs were unlikely to prevail at trial.
The Department of Justice was among a group of objectors to the settlement. The DOJ’s regulations concerning mobility devices (28 CFR 36.311) were promulgated during the litigation, and the DOJ claimed that these regulations made it more likely the plaintiffs would prevail at trial. The District Court disagreed, in essence finding that the DOJ was wrong in its analysis of the safety risks of using the Segway in a crowded theme park.
The second lawsuit was Baughman v. Walt Disney World Co., 217 Cal.App.4th 1438 (2013). In that case the California Court of Appeals found that there was no violation of the ADA when Disney forbade the use of the plaintiff’s Segway. Once again the issue was safety, with the Court agreeing that the device was simply too dangerous for use in a theme park. A third case, also brought by Baughman in federal court in California was dismissed based on the class action settlement in the 11th Circuit case. In two of other decisions involving Segways and the ADA, the courts agreed that because of safety concerns at least some limits on Segway use are appropriate in public accommodations. See, McElroy v. Simon Prop. Grp., Inc., 2008 WL 4277716 (D. Kan. 2008) [plaintiff could be required to sign a registration and safety form], Komperda v. Hilton Hawaiian Vill., LLC, 2010 WL 4386758 (D. Haw. 2010) [plaintiff lost his ADA claim after a jury trial].
It appears, based on these cases, that everyone but the Department of Justice understands that Segways are simply too dangerous for use in crowded public areas. Despite this the new DOJ guidance insists that “devices such as Segways® can be accommodated in most circumstances,” pointedly giving theme parks as an example where Segway use should be accommodated. Armed with this guidance there is little doubt that Segway litigation will continue as disabled users claim they should be allowed to go anywhere their machine can fit, regardless of the danger to others.
What can a business do? The DOJ guidance is almost useless when it comes to answering this question, for it requires every business to formulate a policy covering all power driven mobility devices (OPDMD’s in DOJ jargon) based on five “assessment factors” that cannot be objectively measured. Businesses are allowed to develop rules, but exactly what rules are permissible remains vague. Businesses are also allowed to require “credible assurance” that the individual has a disability requiring use of the Segway, but “credible assurance” includes the user just claiming to be disabled and need the Segway. This means, in effect, that anyone who is willing to lie will be able to take a Segway into almost any public accommodation despite the fact that courts and experts agree that it is unreasonably dangerous to allow this.
Of course this isn’t just about Segways. Electric golf carts fall into the same category, and based on the DOJ’s definition the guidance would also apply to electric scooters and skateboards of all kinds. The DOJ’s position is that every disabled person is entitled to decide what device best helps him or her on a purely subjective basis, and there are no objective criteria a business can rely on to determine which devices are too dangerous to others to be excluded. Businesses are left to balance the likely costs of a personal injury lawsuit resulting from inadequate control of a Segway or other OPDMD against the cost of defending an ADA lawsuit supported by the DOJ. While it will certainly be worthwhile for businesses to pay experts to develop a policy based on the DOJ guidance, in the end, as is too often the case, the primary beneficiaries of the ADA will be experts and lawyers.