Does this look like a “service, program or activity?” The official position of the Department of Justice is that every city facility – sidewalks, buildings and the like – must be made accessible because building and maintaining those facilities is a “service, program or activity” of the city. The Fifth Circuit agreed in what has been a leading case on this issue, Frame v. City of Arlington. Now it appears this view is not unanimous. Just a month ago, in Babcock v. Michigan, 2016 WL 456213, (6th Cir. Feb. 5, 2016) the Sixth Circuit found that the Fifth Circuit was wrong, and that:
My friend and fellow ADA blogger William Goren wrote about Grider v. City of Aurora, 2013 WL 6633404 (D.Colo. 2013) within a week after the December 16, 2013 order denying the prevailing defendants their attorneys fees. [http://www.williamgoren.com/blog/2013/12/22/breed-restrictions-service-dogs-violation-ada/] He correctly pointed out that fights over breed restriction ordinances were likely to prove expensive for cities who have such ordinances. The Court did not reject the plaintiff’s disabilities claims out of hand, and although it ruled for the defendants it denied their request for attorney’s fees.
I find a more positive lesson in the case, for the Court held the plaintiffs to a pleading and proof requirement that is often ignored in ADA cases; that is, that they prove actual as opposed to hypothetical discrimination. The most important ruling by the Court was in its earlier unpublished Order Granting Motion to Dismiss. Grider v. City of Aurora, Case Number 10-cv-722, docket entry 84 (Feb. 23, 2011). After discussing the pleading requirements imposed on plaintiffs by Iqbal and Twombly, the Court makes this observation concerning the plaintiffs’ claims:
Each of the Plaintiffs assert, in completely conclusory fashion, that they were “denied access” or “prevented from utilizing” unspecified “programs and services offered by a public entity,” Docket # 5, ¶ 31, 40, 45, but none of the Plaintiffs identify the particular programs or services they were prevented from using.
In a footnote, the Court goes on to observe that none of the plaintiffs has explained how the help provided by his particular service animal is necessary for the use or enjoyment of particular public facilities. The footnote is lengthy, but this portion of it captures the Court’s analysis:
The Complaint alleges that Mr. Grider’s dog is trained to “enter rooms and buildings ahead of [him] and alert him if anyone else is present in the room” and to “alert [him] when another individual enters the room.” Such assistance would be useless in a public park, which has no rooms, and of dubious assistance in libraries or courthouses, where one would reasonably expect that most rooms Mr. Grider visits would be occupied by other persons and that people would be frequently entering and leaving such rooms.
In short, to prove discrimination the plaintiff must show that the particular service provided by his service dog is needed for the use and enjoyment of a specific municipal program or service. In the Court’s Order of July 30, 2013 granting the defendants’ summary judgment the Court put it plainly: “Mr. Grider would have to show that he could not access government services and benefits without the aid of his service dog.”
This is precisely what the law requires, but the requirement has been generally ignored as courts presume that every kind of restriction on a service animal is a denial of access, or that every feature violating the ADA Standards constitutes a barrier to access. [See my blogs from Nov. 6, 2013, Oct. 4, 2013, May 13, 2013, May 7, 2013 and others]. That presumption turned ADA litigation from an enforcement mechanism into a litigation mill whose primary product is attorney’s fees.
This approach to Title II cases should apply as well to Title III cases, for there is no relevant difference in the pleading requirements or the nature of the discrimination forbidden. Before the owner of a service dog can proceed with a lawsuit claiming that a “no pets” policy violated his ADA rights he should be required to plead that with his particular disability, and the particular service provided by his dog, he could not avail himself of the goods and services provided by the defendant. Before a person in a wheelchair can proceed with a lawsuit claiming an excessive slope at an entry way she should be required to plead that given her personal physical condition and abilities the slope prevented her from using the goods and services of the defendant. Otherwise, as the Court found in Grider, there has simply been no discrimination at all.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, municipal government, Public Facilities, Title II Tags: cities, contribution, government contracts, indemnity, muncipalities
Concepts like “privatization” and “resource sharing” and “public/private partnerships” sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.
In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance. More