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
When does a mental impairment become a disability? Let the jury decide
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA definition of handicap, FHA Emotional Support Animals, Residential Development Tags: Emotional Support Animal, Fair Housing Act, FHA, reasonable accommodation
When used in the context of a claim under the Fair Housing Act or Americans with Disabilities Act the words “disability” and “handicap” have specific legal meanings. Our last blog looked at a case, Houston v. DTN Operating,* discussing what a plaintiff must plead concerning her disability in a reasonable accommodation case. Today we’re looking another recent case, Haws v. Norman, 2017 WL 4221064 (D. Utah Sept. 20, 2017) that considers the next step – a motion for summary judgment by the plaintiff. There is plenty of interest in the opinion on related subjects**, but the Court’s ruling on proof of disability and necessity of accommodation is especially important to landlords who suspect a disability claim is not justified. More
Emotional Support Animal scams – good news from the Eastern District of Texas
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals Tags: assistance animals, Emotional Support Animals, Fair Housing Act, FHA, reasonable accommodation, service animals
The October 17, 2017 decision by Judge Amos Mazzant of the Eastern District of Texas in Houston v. DTN Operating Company et al., 2017 WL 4653246 (E.D.Tex 2017) is good news for landlords confronted by bogus internet diagnoses of disability. There is a vexing lack of authority concerning just what constitutes sufficient evidence of a disability to require a landlord to allow an emotional support animal, and Judge Mazzant’s opinion makes it clear that the kind of letter typically purchased on the internet (or supplied by local physicians who don’t understand the law) won’t do. More
Quick Hits – ADA and FHA news of note
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA Reform, ADA serial litigation, Litigation and Management Services, LLC, Zimmerman
Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.
The statute of limitations for FHA design/build cases – a guide for the perplexed.
By Richard Hunt in Accessibility Litigation Trends, Statute of Limitations Tags: Fair Housing Act, FHA statute of limitations, Garcia v Brockaway, Havens Realty, Village of Olde St. Andrews
The Fair Housing Act requires that private lawsuits brought under 42 U.S.C. §3613 be filed within two years “after the occurrence or the termination of an alleged discriminatory housing practice.” Courts are not in universal agreement about what this means when applied to a failure to design or build apartments according to the standards in 42 U.S.C. §36014(f)(3)(C), so a developer or owner’s defense in a design/build case may depend on where the apartments are located. How can a national statute have regional variations? Well, somebody’s wrong. Here’s a brief “guide for perplexed.”