In a decision issued on April 14, 2014 the 11th Circuit provided a major victory for subsequent owners of apartments and other types multi-family housing. In Harding v. Orlando Apts. LLC, 748 F.3d 1128 (11th Cir. 2014) the Court dismissed the notion that merely owning or operating an apartment complex could create liability for a failure of the apartments to meet the FHA design standards. Following the best reasoning of scattered earlier district court decisions the Court found that the clear language of the FHA imposed design and construction liability only on those involved in the original design and construction, and that the general anti-discrimination provisions of the FHA did not create an ongoing duty to bring a multi-family development into compliance with the design standards. (See my blog of November 21, 2013 for background on the pending district court cases). More
ADA FHA Litigation General
Good news for ADA defendants facing cut and paste pleadings
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, ADA pleading, ADA standing, private litigants
A pair of recent district court decisions provide some hope for defendants that federal courts are taking seriously the plaintiff’s obligation to plead an intelligible claim for relief. Unfortunately, the standard is still fairly low, and will only slightly limit cookie cutter lawsuits based on generic allegations. Nonetheless, ADA defendants will want to study the cases when confronted by a plaintiff whose settlement demands are so unreasonable that a substantive defense makes economic sense. More
A green card is no red light when it comes to ADA and FHA litigation
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Building Codes Tags: ada litigation, FHA Litigation, private lawsuits
Many modern building codes incorporate accessibility requirements that parallel or even exceed the requirements of the FHA and ADA. In fact, the regulations implementing the accessibility provisions of the Fair Housing Act identify as safe harbors the provisions of several versions of the International Building Code. It is hardly surprising then that property owners and contractors believe that getting a certificate of occupancy means the building complies with the FHA or ADA. Nonetheless, getting a C.O. is no guarantee of compliance with the law and no proof against litigation. The reasons are largely practical, but there is a legal dimension as well when it comes to placing the blame for a failure to comply. More
ADA Defense – know when to fold ’em.
By richardhunt in Accessibility Litigation Trends, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, private lawsuits, private litigants
In the classic Kenny Rogers song “The Gambler” a mysterious stranger advises him to “know when to hold ’em, know when to fold ’em, know when to walk away and know when to run.” You can’t walk or run away from an ADA lawsuit, but a spate of new decisions illustrate the dangers of not knowing when it is time to stop fighting and start settling.
I’ll start with Kalani v. Nat’l Seating & Mobility, Inc., 2014 WL 1665226 (E.D. Cal. Apr. 25, 2014), a typical ADA lawsuit claiming problems with parking and an accessible restroom. The defendant contest the truth of the plaintiff’s allegations, arguing instead that some of the evidence in a summary judgment proceeding was inadequate. After thinking the matter over in a Motion for Reconsideration the Court granted the plaintiff statutory damages under California’s Unruh Act. The damages were not large ($4,000), but as other cases show choosing to fight on procedural rather than substantive grounds can cost far more when it comes time to award the plaintiff attorney’s fee. And of course all the money spent on the non-substantive defenses was completely wasted.
Griffin v. J.A.R.S., LLC, 2014 WL 1600315 (S.D. Fla. Apr. 21, 2014) is another decision that might be regarded as a prelude to the fight over attorney’s fees. In Griffin the defendant claimed that the complaint was inadequate because it referred to violations of “Section 208” of the ADA standards. As examples the defendant cited specific parts of Section 208 that would not apply to the defendant. The Court was not impressed, writing that:
Defendants point to parts of Section 208 that they have picked and chosen and that they know do not apply to them and use those aspects of the Standards to argue that Section 208 as a whole does not apply to them when they know full well that the general parts of Section 208 do appear to apply to them. Worse yet, they appear to attempt to hide the relevant parts of Section 208 by attaching only the irrelevant parts of the Standard to their Motion. This does not comply with the duty of candor to the Court, and it is frivolous at best and disingenuous at worst. Defendants’ other challenges to the Complaint are similarly without basis, and the Court will not belabor this Order further pointing out the faults with them.
Losing this particular motion to dismiss probably stung, but losing the Court’s confidence in the defendant’s honesty is likely to be very expensive in the long run.
Lema v. Comfort Inn Merced, 2014 WL 1577042 (E.D. Cal. Apr. 17, 2014) is a case in which the defendant’s tactics resulted in a higher award of attorney’s fees to the plaintiff. In Lema the defendants refused to settle the substantive claims in the lawsuit because the plaintiff failed to produce billing records. The defendants argued that without the records they could not settle the attorneys fee claims. The court, which referred to the defendants’ “extensive delaying tactics,” refused to adjust the plaintiffs fees on this basis. It noted instead that if the defendants had settled the substantive claims — which did not seem to be disputed — they would have eliminated the cause of action giving rise to attorney’s fees and thus limited further fees. By refusing to settle the substantive claims the defendants gave the plaintiff to continue incurring recoverable fees.
Finally, in Hernandez v. Grullense, 2014 WL 1724356 (N.D. Cal. Apr. 30, 2014) the defendants managed to turn a judge with grave doubts about the plaintiff’s attorney’s claim for fees into an award of very high fees simply because they refused to admit the obvious; that is, that the property was not ADA compliant. To understand the case it is helpful to start with the Court’s attitude toward the plaintiff’s lawyers:
This motion presents the problem of determining a fair award in an uncomplicated ADA matter to an experienced law firm that has been repeatedly criticized for the same unreasonable billing practices that it used in this case.
The DIY ADA litigation avoidance survey – is that a target on your back?
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants
If you know your business has ADA compliance issues then hire an expert to find them all and plan for remediation. If you’re not sure, and don’t want to pay to expert, here’s a method for checking the accessibility problems most likely to lead to a lawsuit. If your business has these issues, your best way to avoid litigation is start fixing them now. You’ll need a good 16 ft. tape measure, a 2 foot level, a yardstick, and a short piece of 1″ dowl. Remember as you do this survey that a very large majority of ADA lawsuits are brought by plaintiffs confined to a wheelchair, so wheelchair accessibility standards are the key to avoiding most lawsuits. No matter what the actual measurements, if there is something in your business that isn’t readily accessible to a person in a wheelchair then you have a lawsuit waiting to happen.
We’ll start with parking, which is where the plaintiffs usually start. If your accessible parking looks like the picture below on the left then you’ve probably got a barrier to access that must be fixed. The picture next to it explains why. A ramp that projects out from the sidewalk will almost never satisfy the ADA accessible design standards.
Any accessible parking ramp should look like one of the pictures below.
(Thanks to Michael Allen of Code Able Accessibility for the photo on the right).
Next, measure the largest accessible space. Current standards require at least one van accessible parking space, which requires a flat area at least sixteen feet wide and as deep as local codes require, usually 19 to 20 feet. Flat means flat. Use the level to make sure the space doesn’t have any significant slope. How many accessible spaces you need depends on the total number of parking spaces, but if you don’t have one van accessible space you are a litigation target. Here’s a picture from the DOJ showing a properly marked accessible parking space. The picture is misleading in one way. The marked access aisle only has to be 60″ wide if the van parking space next to it is 11 feet wide. The total is 16 feet wide no matter what.
There are requirements for the slope of the ramp and the wings next to it. You can make sure the ramp slope meets the ADA requirement by putting the level on the ramp with the 0″ end at the top. Lift the level and slide the dowl in at the 12″ mark and then roll it up or down until the level is level. If the dowl touches the level at the 12″ or higher mark the slope meets the 1/12 slope requirement.
Next, walk from the accessible space to the front door of your business. Did you pass any other parking spaces? For a stand alone business the accessible space should be the closest space to the door unless there are physical reasons it cannot be. In strip shopping center there may be more leeway, but if there is a lot of closer parking you may have a problem.
While you walked did you see any bumps or gaps of more than 1/4″? If so the route may not be “accessible.” Any steps? Then the route is definitely not accessible and therefore doesn’t comply with the ADA. Finally, were there any discernable slopes? if so, check them the same way you checked to parking access slope. My suggestion would be that even if the slope passes this test you talk to a consultant because the slope and cross slope requirements are complex enough to warrant expert review.
You need to check two things at your front door. First, the threshold should be no more than 1/4″ high, or 1/2″ high with a beveled edge. Second, the width of the door itself should be 36″ or more. The actual ADA requirement is based on clear space when the door is open, but as a general rule a hinged 36″ door that opens at least 90 degrees will have the required clearance. A 35″ door is cutting it very close, and a 34″ door will not have the required clearance.
Restrooms are a very common source of ADA complaints, and although the restroom rules are very complicated you can make a few measurements to determine if you have the most common kinds of problems. First, check the door. Does it have a knob? Then it is not ADA compliant. Lever door handles are required in almost all cases. Next, check the size of the restroom. If the door swings out the restroom must be at least 5′ x 7′ to comply with the current standards. If the door swings in the minimum is 7′ x 6′ 6.” No matter how the restroom is laid out if it doesn’t meet these size minimums it probably violates the ADA.
Of course the placement of the toilet and lavatory matters as well. While clever layouts that save space are possible, the easiest way to tell if there is an issue with the toilet is to measure sixty inches out from behind the toilet and 60 inches out from the wall next to the toilet. If there is anything other than the toilet and grab bars in that 60″ x 60″ square then the restroom probably does not comply with the current ADA standards.
Speaking of grab bars, there must be one behind and one on the wall closest to the toilet. Location and dimensions are important, but if you don’t have one of each then there is certainly a problem.
Finally, for a quick survey, make sure there is one lavatory open at the bottom so that a wheelchair can roll up to it. Any pipes need to be covered, and the sink height can be no more than 34 inches. The location of soap dispensers, faucet levers (no knobs) and towel dispensers are all important as well, but these aren’t the major causes of litigation.
The final check on this quick survey of the most common problems will be the width of aisles in the store or business and the height of checkout counters. Use the yard stick to make sure there is at least 36″ wide path to everywhere in the business a customer might ordinarily go. Remember the 36″ width has to be a floor level as well as above. If there are places a consumer can’t reach by a 36″ wide route then there is almost certainly an ADA problem.
The checkout aisle requirements are somewhat complicated, but the usual violations are not hard to find. A typical grocery checkout — the kind with a moving belt — cannot be more than 38″ high with a 2″ lip. A checkout counter cannot be more than 36″ high and must have a space at least 36″ long and deep in front of it. If the counters are higher than this, or cannot be easily approached by a person in a wheelchair, there is probably an ADA violation.
Remember that this DIY survey can’t tell you if your business is fully ADA compliant — it only covers the most common ADA violations that lead to litigation. The safest course for any business is to hire a consultant and get a complete survey. This survey also assumes the worst in most cases. If you are already in a lawsuit there may be good arguments for an exception to the general ADA standards. But if you aren’t in a lawsuit and don’t want to be, this survey will tell you whether you’ve go a target painted on your back with respect to ADA litigation.