Brooke v. A-Ventures, LLC, 2:17-CV-2868-HRH, 2017 WL 5624941, at *1 (D. Ariz. Nov. 22, 2017) is a case with an unusual procedural posture and a holding that shows a frightening misunderstanding of issues concerning website development. According to this judge, making a website accessible is an admission of an ADA violation and a business website can never be fixed so well that a case against it is moot. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA Emotional Support Animals
Black Friday is approaching. In honor of the annual sales we’ve collected a bevy of cases containing helpful lessons for any business subject to the ADA or Fair Housing Act.
Siler v. Abbott House, Inc., 2017 WL 5494989 (S.D. Fla. Nov. 16, 2017) teaches a simple lesson for HOA’s: call your lawyer before you do anything concerning a disabled tenant or resident. In this case the prospective tenant was, it seems clear, treated very badly by a condominium home owners association. The conduct went from merely improper (questions about her obvious disability and need for personal assistants) to just spiteful (moving an access button to make sure she couldn’t reach it). Despite a later letter from the HOA’s lawyer apologizing and trying smooth things over the Court refused to dismiss the tenant’s claims for damages and attorneys’ fees. This isn’t a final victory for the plaintiff, but it guarantees the HOA will spend tens of thousands of dollars in legal fees if it doesn’t settle. Every HOA needs a clear set of policies regarded disabled tenants, and if those policies don’t exist, the Board should not act without first calling a lawyer. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness Tags: Burningham v TVI, Gomez v Empower U, HB 1463, HB 3765, HB727
A number of states have passed laws intended to stop abusive ADA lawsuits, including most recently Florida and Texas.* As we’ve reported several times recently some individual federal judges are taking their own steps to stem serial litigation without diminishing the rights of the disabled. All these efforts attack the problem at the wrong end. Serial ADA lawsuits are a just a symptom of a deeper problem – a lack of ADA education and regulatory enforcement. More
On October 2, 2017 the Supreme Court denied the plaintiff’s petition for certiorari in McGee v. Coca Cola Refreshments U.S.A., Inc., letting stand the decision by the 5th Circuit holding that Coca Cola vending machine was not a “place of public accommodation” covered by Title III of the ADA.* Last month a District Court in the Eastern District of Pennsylvania applied the same reasoning to a DVD rental kiosk. Nguyen v. New Release DVD, LLC, CV 16-6296, 2017 WL 4864995 (E.D. Pa. Oct. 27, 2017). Neither McGee nor Nguyen mention an earlier case, Jancik v. Redbox Automated Retail, LLC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) that also attacked automated machines allowing DVD rentals. Interestingly enough, in Jancik v Redbox the defendants conceded that their DVD rental kiosks were places of public accommodation subject to Title III of the ADA. It apparently never occurred to them that the difference between a public accommodation and a mere “service” was whether the goods were delivered by a machine instead of a human. Were they wrong? These cases illustrate a real problem with the way “public accommodation” is defined in Title III. More
This week’s cases have a number of scary points to remember, starting with the point that under the ADA nothing is too trivial to justify a lawsuit. Kelley v. Cafe Rio, Inc., 2:17-CV-00489, 2017 WL 4792229, at *1 (D. Utah Oct. 23, 2017) is a standard serial filer case based on bad parking and a toilet whose flush handle was on the wrong side. The toilet is your first scary item. The ADA requires that the flush handle be located on the “open” side of the toilet so a person in a wheelchair doesn’t have to reach over the toilet to flush. This is the kind of detail current ADA jurisprudence turns into thousands of dollars of wasted attorneys fees or, in the alternative, at least hundreds of dollars in consultants’ fees because you can’t even put a toilet in a public restroom without hiring an ADA specialist. The second scary feature of this case is that the tenant, who apparently did not control the parking, ended up losing on summary judgment because it could not confirm the parking problems were fixed. For a defendant legal technicalities are just as important as physical technicalities. More