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:
ADA FHA Litigation General
The Department of Justice has once again delayed regulations that would purport to set standards for web accessibility under the Americans with Disabilities Act. This is not the first time DOJ has kicked the can a little further down the road with respect to web access regulations. The proposed regulations have been floating around since 2010 with no sign of when they might be finalized. Some lawyers fret about how the delay will affect businesses (see, Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil) while disability rights advocates continue to assert that, despite the language of the ADA, it does require accessible web sites (See, Fall 2015 Update: More Delay for DOJ Web Regulations). What’s a business to do? The answer is simple – find a web developer. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants, restaurants, retail, serial plaintiffs
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.” More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General, ADA Policies, Policies and Procedures FHA ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, ADA Policies, private lawsuits, restaurants, retail
One of the many ADA risks that businesses face is the risk of sliding into non-compliance through maintenance failures. This seems to come up most often in the context of parking, because the markings required for accessible parking are exposed to the weather and to wear from car tires. I recently settled a case of this type, and a reported opinion from California was a reminder of how important maintenance can be.
In Lozano v. C.A. Martinez Family Ltd. P’ship, 2015 WL 5227869, at *4 (S.D. Cal. Sept. 8, 2015), the complaint concerned nothing more complicated than striping accessible parking. The paint had faded and on repeated occasions over months the access aisles were blocked. As soon as the lawsuit was filed the owner repainted, but that was too late for the Court, which found that a policy of re-striping that apparently had not been followed would not let the owner escape an injunction and, of course, paying fees to the plaintiff’s attorney. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Building Codes, FHA, Multi-Family Tags: Consent Decree, Construction, Department of Justice, DOJ, FHA
The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can. More