Good News – the defense lost in an FHA pet deposit case.

May 29, 2017 By Richard Hunt in ADA FHA Litigation General, Animals, FHA Emotional Support Animals, Landlord-tenant

Lucky, our attack cat, reacts to the news

On May 17 a jury in the District of Montana found that a landlord violated the Fair Housing Act by requiring a pet deposit from a disabled tenant and awarded damages of almost $40,000. (U.S. v. Katz et al, Case No. 14-68). Why is this good news for landlords? Because there was a jury trial, meaning the landlord had a chance to win.

HUD and the DOJ have long taken the position that any requirement of a pet deposit for a service dog or assistance animal* violates the reasonable accommodation provisions of the FHA. (Notice dated April 23, 2013, FHEO-2013-01). The position is illogical on its face because HUD and DOJ recognize that a disabled tenant remains responsible for any damage caused by a service or assistance animal. If the tenant remains responsible for the damage, why not require a damage deposit? HUD does not require that landlords waive a rent or general damage deposit for disabled tenants, and a pet deposit is no different. Nonetheless, HUD has spoken and requests for accommodation in the form of pet deposit waivers have skyrocketed since 2013. More

Time for a do-over – the 9th Circuit gets indemnity and contribution right.

May 20, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA indemnity contribution, FHA indemnity contribution

The Ninth Circuit’s April 24 decision in City of Los Angeles v. AECOM Services, Inc., 2017 WL 1431084 (9th Cir. Apr. 24, 2017), amended sub nom. City of Los Angeles by and through Dept. of Airports v. AECOM Services, Inc., 2017 WL 1844077 (9th Cir. May 9, 2017) represents a giant step in the direction of common sense with respect to indemnity and contribution under the ADA and, by extension, the FHA. The Court held that the party who is most responsible for an ADA violation should bear the cost of remediation. It doesn’t sound like a surprising result, but it runs counter to the prevailing law. More

Maybe a CO does mean something – rediscovering a safe harbor under the FHA.

May 8, 2017 By Richard Hunt in Accessibility Litigation Trends, Building Codes, Design Build Discrimination Tags: ANSI A117.1, Fair Housing Act, FHA, Judge Richard Leon, safe harbor

In a March 27, 2017 ruling Judge Richard Leon of the D.C. Circuit found a safe harbor in the Fair Housing Act that I haven’t seen referred to in any earlier published opinion. See, U.S. v. Mid-America Apt. Communities, Inc., 2017 WL 1154944 (D.D.C. Mar. 27, 2017). In the defense of FHA design / build cases the emphasis is usually on the statutory safe harbor in 42 U.S.C. §3604(f)(4), the ANSI A117.1 standard, or in one of the similar safe harbors recognized by HUD in 24 CFR §100.205(e). However, there is also safe harbor language in 42 U.S.C. §3604(f)(5), which provides that:

(5)(A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph.

and

(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met. More

Hunt appears in white paper on the State of Web Accessibility

May 3, 2017 By Richard Hunt in Uncategorized

Richard, along with Jason Taylor of Usablenet and Albert Rizzi, the founder of My Blind Spot is featured in a white paper titled “The State of Web Accessibility” published by Usablenet. It should be of interest to any business that wants to better understand the legal issues and practical problems of web accessibility. It can be downloaded using this link:

http://pages.usablenet.com/WC2016-11StateofWebAccessibilityWhitepaper_RegistrationLP.html?src=Usablenet%20Partner&lsd=WC%202016-11%20State%20of%20Web%20Accessibility%20Whitepaper-Richard%20Hunt

*Please note that our work with different web accessibility consultants does not represent an endorsement of any of them. Decisions on how to best approach accessibility should be made by any business after consulting with both counsel and a variety of consulting firms.

A drop in the bucket or a shot in the dark – the latest decision on ADA and the web

May 3, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access Tags: Accessible 360, ADA Internet, ADA web, Judge Charles Schwab

On April 21, 2017 Judge Schwab of the Western District of Pennsylvania surprised no one by finding that the ADA applies to web sites. Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898 (W.D. Pa. April 21, 2017). Judge Schwab has presided over dozens of ADA cases, and his orders in those cases make it plain that he has an expansive view of the purposes and reach of the ADA.

What is surprising about the decision is Judge Schwab’s reasoning, which does not follow many earlier cases holding that websites may be covered by the ADA because they are a service of a brick and mortar store, act as a “gateway” to the brick and mortar store or otherwise have some relationship to a physical place of public accommodation. Instead Judge Schwab observes that the defendants’ physical locations are undoubtedly places of public accommodation and then finds that “the alleged discrimination has taken place on property that AmeriServ owns, operates and controls – the AmeriServ website.” Missing is the connection between the website and the physical premises present in other cases. It appears that Judge Schwab would hold that if any business owns a place of public accommodation then any website it also owns is subject to the ADA, regardless of the relationship of that website to a physical premises.

The case was decided on a Motion to Dismiss, and although district court decisions pro and con continue to drift in, there no definitive case. There is, however, a clear imperative to make websites accessible to avoid the expense of litigation.

Thanks to Michele Landis of Accessible 360, for sending me information about this decision.