95% of the ADA lawsuits filed in Texas and elsewhere seem to start with barriers to access in the parking lot. It isn’t hard to understand why. Before the effective date and for many years afterwards business owners believed that a ramp up to the existing curb next to a marked parking spot was all the law required. The picture at left shows the typical ramp that resulted. I recently visited a client site and between the highway exit ramp and the his location I noticed more than a dozen strip shopping centers and small businesses with precisely this “solution” to the problem of accessible parking.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail Tags: ada litigation, ada violation, mental health disabilities, service animals, support animals, therapy animals
With widespread media coverage of disputes about service dogs in bars and restaurants disability advocates, real and self proclaimed, are predicting an explosion of litigation about service dogs under the Americans with Disabilities Act. There has been no change in the statute itself, and the Department of Justice regulations for service dogs went into effect in 2011. However, as with other kinds of ADA litigation, it has taken some time for the implications of the law to work their way into the popular consciousness.
The easy situation for any business is a person with an obvious disability who comes to a business with a well behaved service dog wearing a vest or other identification. The ADA is clear – the dog and owner must be allowed in the store or restaurant even if there is a “no pets” policy in place. The harder situation, and the one that leads to media coverage and lawsuits, occurs when a person who has no obvious disability arrives with an unmarked dog and a bad attitude. Dealing with this situation, and any resulting problems, requires careful thought about just how service dogs fit into the ADA’s scheme of disability rights. More
A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail Tags: ada litigation, ADA pleading, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants
A case decided just last week, Dodson v. Strategic Restaurants Acquisition Co., 2013 WL 3120322 (E.D. Cal. 2013) is worth study for any ADA or FHA defense attorney. There is plenty of technically useful information because the Court has provided an extensive survey of cases discussing whether Iqbal and Twombly apply to affirmative defenses. This is an unsettled question, and the Court lists many of the pro and con authorities. There is also an important moral lesson for defense attorneys. The Court isn’t likely to hold the defendant to a lower pleading standard than the standard for the plaintiff. What’s sauce for the goose is sauce for the gander.
Starbucks has a long history of litigation about the height of its pickup counters. In 2003 Starbucks settled a claim by a California disabilities rights group concerning the height of its pickup counters. In 2011 Starbucks obtained the dismissal of another pickup counter height lawsuit, Chapman v. Starbucks, 2011 WL 66823 (E.D.Cal. 1022) based on mootness. The counter had been lowered to comply with the ADA requirements. In 2012 Starbucks settled a case that included counter height allegations in the Southern District of Florida. Access 4 All, Inc. v. Starbucks, Case No. 0:11-cv-61010 (S.D. Fla.). The settlement terms do not appear in the record, but most ADA settlements include remediation plus attorney’s fees, so it is a reasonable guess that Starbucks had to lower the counters in the 4 stores at issue. Just a few days ago, on June 5, 2013, a different District Court awarded Robert Cruz some $145,960.07 in attorney’s fees for his successful action against Starbucks concerning one Starbucks store. The Consent Decree in that case called for lowering the pickup counter. Cruz v. Starbucks Corporation, 2013 WL 2447862 (N.D. Cal. 2013) and see Docket 29-1 in the underlying case, 3:10-cv-01868. More