The Court’s principal holding is the obvious but often overlooked rule the various safe harbors for the design and construction of multi-family dwellings are a shield, not a sword. In Miami Valley the plaintiffs produced a typical expert report in this kind of case. It listed several hundred supposed accessibility barriers based on deviations from the original FHA Guidelines promulgated by HUD in 1991 along with the assertion that because the Guidelines are the least restrictive of the HUD recognized safe harbors the apartments did not meet any safe harbor standard. Based on this evidence the plaintiffs sought summary judgment. More
FHA design/build litigation
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, FHA, FHA design/build litigation Tags: ADA defense, FHA Defense, Lyft, Ride Sharing ADA, uber
There is only one prediction that can be made with complete certainty about ADA and FHA litigation in 2019: Lawyers will continue to make money exploiting these laws for profit in the name of accessibility. The number of lawsuits continues to climb, and with Congress and regulators unwilling to do anything this exploitation will continue. However, before we face the new challenges of a new year it is time for a final look backward at the recent decisions concerning accessibility for the disabled.
Standing in website accessibility cases.
Price v. Orlando Health, Inc., 2018 WL 6434519, at *4 (M.D. Fla. Dec. 7, 2018) shows just how important theories about why the ADA covers websites can be to standing in such cases. Courts in the 11th Circuit have adopted the theory that a website is covered by the ADA only if it has a nexus to a physical public accommodation. Because this relationship is required, the ADA injury giving rise to standing must be some inability to use the physical accommodation. The plaintiff in this case had no plausible intent to use the defendant’s facilities so he could not establish an ADA injury and did not have standing to sue. This is one of many reasons there is a widening gap between the Circuits with respect to how website cases can be effectively defended. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, FHA, FHA design/build litigation, FHA renovation, First Fix Then Fight Tags: ADA defense, Cyber Monday, FHA Defense
That’s right, it’s Cyber Monday. Interestingly enough there have been no ADA web access decisions since my last Quick Hits blog, but there are still a few developments of interest.
The long road from an interesting partial victory to a final settlement.
I blogged about States v. Mid-America Apartment Comms., Inc., 247 F. Supp. 3d 30, 36 (D.D.C. Mar. 27, 2017) last year.* The case was interesting because the defendant got a preliminary ruling suggesting that a certificate of occupancy based on a building code that incorporated FHA standards could be a defense to a claim under 28 USC §3604(f)(3)(C) for failure to properly design and construct multi-family housing. The potential for this defense was recognized in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790, at *8 (S.D. Ohio Sept. 28, 2018) but found premature in a summary judgment context. Then, on November 21 of this year the Department of Justice announced a multi-million dollar settlement with Mid-America. I was interested in what happened between the 2017 ruling and the 2018 settlement, so I reviewed the case file to see if anything of interest to other defendants might appear. More
By Richard Hunt in Accessibility Litigation Trends, Design Build Discrimination, FHA, FHA design/build litigation, FHA Regulation, Multi-Family Tags: design/build litigation, Fair Housing Act defense, FHA Design Manual, FHA safe harbors, Miami Valley, Mid-America, Section 3604(f)(3)(C)
The decision in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790 (S.D. Ohio Sept. 28, 2018) has the potential to create a significant change in how FHA design/build cases are litigated. It also provides litigants with a treatise on the most important evidentiary issues faced by both plaintiffs and defendants. The critical take-away for apartment owners and developers is that proof of deviations from the various FHA safe harbors is not conclusive evidence of an FHA violation. That means defendants who own or build apartments that are accessible but have technical deviations from FHA design/build safe harbors will be given the chance to talk about what matters to the disabled, that is, accessibility. More