A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
FHA disability claims – get it right the first time.
In Root v. Salazar, 2019 WL 4040405 (M.D. Fla. Aug. 27, 2019) made a critical mistake. Having in hand a legitimate non-discriminatory reason to refuse to rent he instead made an excuse that probably seemed more legitimate but wasn’t. The legitimate excuse was the tenant’s lack of steady income. The FHA does not require that landlords take financial risks to accommodate disabled tenants. The illegitimate excuse was that the duplex in question did not meet the FHA’s accessibility guidelines. A fundamental principle under the FHA, ADA and other similar disability laws is that the tenant gets to decide what he or she needs. It may seem helpful to tell a prospective tenant why they should rent elsewhere, but if the tenant is disabled or a member of a protected class that helpfulness will look like illegal discrimination.
Stadium seating and sightlines
Defendants SLAPP back
Langer v. Kiser et al, 2019 WL 4017033, at *7 (S.D. Cal. Aug. 26, 2019) presents an interesting counterpoint to cases I blogged about several years and several weeks ago.* The defendant counterclaimed for trespass, alleging that its parking lot was private and the plaintiff, a serial filer, wrongfully occupied it by driving in to look for ADA violations. The plaintiff responded with a motion to dismiss under California’s anti-SLAPP** law. The District Court found that the desire to find ADA violations satisfied the first requirement for an anti-SLAPP motion; that is, that the matter was one of public interest. The Court was unwilling to find, however, that the trespass claim had so little merit it should not be presented to a jury. What appears to distinguish this case from earlier failures for trespass claims is the insistence of the defendants that the parking lot is truly private. While the building served by the parking lot includes two public accommodations, the defendants insisted that every parking place was reserved for residents or business owners and employees. Nonetheless, it seems unlikely that the trespass claim will survive an appeal since the use of trespass as an attack on ADA serial plaintiffs does have public policy implications.†
The Independence Project, Inc. v. Ventresca Bros. Construction Co., 2019 WL 4126448, (S.D.N.Y. Aug. 30, 2019) is a kind of companion to Chapman v. NJ Properties Inc., a California case I blogged about two weeks ago.‡ After settling the defendants sought to avoid paying court awarded attorneys’ fees by claiming the plaintiff was not a prevailing party. Applying Second Circuit law the Court found that by explicitly agreeing to the Court’s continuing jurisdiction to enforce the settlement the plaintiff’s had sufficiently linked their claims to the Court’s power and could therefore avoid the Supreme Court’s holding in Buckhannon. The defendants also failed to obtain dismissal based on claims the plaintiff was not disabled, and effort that undoubtedly drove up the fees awarded to the plaintiff. For this kind of ADA lawsuit strategic decisions about defense and settlement must be made before any money is spent. Some defense costs may be unavoidable, but only unavoidable costs should be incurred.
Johnson v Starbucks – the saga continues
City website claims under ADA Title II
Rutherford v. Cesar’s Mexican Rest., LLC, 2019 WL 4193392 (S.D. Cal. Sept. 3, 2019) is notable because the Court insists that the plaintiff show an injury beyond merely relating his mobility impairment to the type of supposed ADA defect. This decision is round two for Rutherford in this case, and the Court’s approach, which requires Rutherford to show that particular defects caused him injury would, if adopted generally, be an effective restriction on abusive serial litigation.
Readily achievable is a question of fact.
The defendant in Brito v. Dunahay Properties Lllp, 2019 WL 4192111 (D. Colo. Sept. 4, 2019) almost, but didn’t quite manage to moot the claims against it. The problem was two architectural barriers whose remediation the defendant claims was not readily achievable because of cost. The plaintiff’s expert disagreed and presented a cost estimate the court found sufficient to raise a fact issue. The existence of the barriers was not in dispute, so the case will go to trial on the question of whether the cost is simply too high. I’m in no better position than the judge to say which side is right, but it is worth remembering when it comes to remediation that what you would prefer as a business owner may have to give way to what is needed to make the facility accessible.
You don’t lose, and you can’t quit.
United States v. State of Mississippi, 2019 WL 4179997 (S.D. Miss. Sept. 3, 2019) is too detailed in its analysis of the facts to be briefly summarized, but a couple of points are worth noting. First, deciding whether a state is meeting its Olmstead obligation requires detailed statistical data as well as individual patient interviews. The court observed that the case was largely a battle of experts. Second, having a program that looks good on paper is not sufficient if in reality disabled individuals do not have access to services available in theory. It’s relatively easy to write a policy. Putting it in to practice is what the law requires.
Plasma donation centers
I’ve written about plasma donation centers in the past² but rather than revisit the history of the circuit split here I’m going to take the easy way out and refer you to William Goren’s recent blog on Matheis v. CSL Plasma, Inc., the August 30 decision from the 3rd Circuit that finds such centers are places of public accommodations. His discussion can be found here.
¹ See, “Stadium Sightlines”
* See, “ADA serial litigation problems – don’t get mad, get even.” and “Quick Hits – Cyber Monday edition“.
** “Strategic Lawsuit Against Public Participation”
† In theory there are non-serial customers who might have counterclaims filed against them as a defensive measure. Thus, allowing such counterclaims would discourage even claims by non-serial filers. There is no reason to think Langer is in it for anything but the money; however, a rule of law cannot assume bad faith on the part of every litigant.
‡ See, “Sixth Circuit affirms its commitment to the Constitution and other ADA and FHA Quick HIts”
° See “Auer deference and the Fair Housing Act – does Kisor change anything” for a discussion of the case.
°° See the “California Dreaming” heading in my blog “Sixth Circuit Affirms Committment”
² See, “Quick Hits – Recent ADA and FHA Cases“