One of the more frequently quoted cases dealing with the relationship between the FHA and poverty is Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998). In Stratford the Second Circuit wrote that the FHA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.” The 11th Circuit’s decision in Shaw v. Habitat for Humanity, Case No. 17-13960 (11th Cir. Sept. 18, 2019) takes up the question of just where one draws the line between disability discrimination and economic discrimination. Along the way it also clarifies who gets to decide what accommodation is required and just what “necessary” means. More
ADA FHA Litigation General
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Policies, ADA Web Access, ADA Website Accessibility, FHA Reasonable Accommodation, Hospitals, Internet Accessibility, Statute of Limitations Tags: ADA defense, ADA Policies, ADA standing, FHA Defense, HOA litigation, Johnson v Starbucks, Midwest Disability Initiative, Pacific Trial Group, Scott Ferrell, Strojnik, unruh act, website accessibility
The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.
HOAs and the FHA
Lau et al v. Honolulu Park Place, AOAO, 2019 WL 3208644 (D. Haw. July 16, 2019) is a kind of short treatise on how the FHA applies to accommodation claims made by parents or others associated with a disabled person. What is surprising is the degree of ignorance or obtuseness shown by the HOA’s counsel in defending the case. Here’s what the Court says:
“Defendants appear to misunderstand the FHA as well as the injury-in-fact requirements of Article III. . . . Only the most obtuse reading of the Complaint could fail to construe the allegations as an injury to the person. . . . But Defendants’ conclusion is only possible when accepting their misrepresented version of what Plaintiffs seek. In other words, it is a straw man of their own creation.
HOAs should remember that the firm handling their assessment collections or dealing with personal injury suits may not have the specialized knowledge necessary for FHA defense. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA FHA Litigation General, ADA Internet, ADA Internet Web Tags: ADA defense, ADA Website Litigation, Domino's Pizza v Robles, primary jurisdiction, WCAG 2.0
This afternoon the Ninth Circuit overruled the district court decision in Robles v. Domino’s Pizza LLC. Robles has always been an outlier. It is one of only a couple of cases holding that the absence of DOJ regulations made it unfair to prosecute claims against website operators under the ADA. The Ninth Circuit disagreed, adding additional weight to the lower court decisions finding that the lack of regulations does not raise due process concerns and confirming that in website accessibility litigation justice is simply not available to small businesses. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA FHA Litigation General, ADA Litigation Procedure Tags: ADA default judgment, ADA defense, burden shifting, Colorado Cross Disability, Readily Achievable
I have often discussed the benefits of mootness as a defense in Title III ADA cases. Simply fix the problem and the plaintiff’s right to sue evaporates. Unfortunately, not all problems can be easily or cheaply fixed, leaving the defendant in the unpleasant position of having to spend an absurd amount of money or make an irritating settlement that pays the plaintiff’s lawyer to give up the claim. When the cost to fix a problem is high, the “readily achievable” standard in the ADA comes into play and can help the defendant.
By Richard Hunt in ADA FHA Litigation General, ADA indemnity contribution, FHA indemnity contribution, Residential Development Tags: AECOM, Cherokee Meadows, Equal Rights Center, FHA contribution, FHA enforcement, FHA Indemnity, non-delegable duty
Last week’s decision in Shaw v. Cherokee Meadows, LP, 17-CV-610-GKF-JFJ, 2018 WL 3474082 (N.D. Okla. July 19, 2018) provides a good opportunity to revisit contribution and indemnity claims arising out failures to meet the design/build requirements in Section 3604(f)(3)(C) of the Fair Housing Act.* The question remains the same as always: does the law make any sense at all.**
The judge who decided Cherokee Meadows was faced with a split between two Circuit Courts of Appeal and no precedent from the Tenth Circuit, which Oklahoma is a part of. The leading case on contribution and indemnity in design/build cases was Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010). In that case the Fourth Circuit held that the Fair Housing Act pre-empted any state law that might allow an owner to put off all or even part of the liability for design/build failures on a third party. The Court found that the owner had a “non-delegable duty”† to follow the law and that allowing any shifting of liability would encourage owners to evade that duty. Equal Rights Center punishes an owner who may be innocent while excusing those who are in fact guilty because, it appears, the Fourth Circuit views the purpose of the FHA as primarily punitive.‡ More