You don’t have to own or lease a facility in order to have possible ADA liability when you are using it. The Supreme Court’s decision in PGA Tour v. Martin got quite a bit of attention because it seemed to pit the ADA against the rules of the PGA for golf tournaments. The case also created a much broader and more important rule. An event, even one that lasts only a few hours or days, can be a public accommodation whose organizers become responsible for ADA violations in facilities they only rent on a short term basis. In my last blog I described the possibility that the owner of a residential facility might become temporarily subject to more stringent ADA requirements. This is the inverse: the user of a facility who becomes responsible for ADA compliance when using a building whose owner may be subject to different standards. More
The 2010 ADA Standards were big news for commercial developers, retailers and others whose businesses are open to the public. They seem far less important to residential developers, because on their face they don’t apply, or apply only in limited places, like a leasing or sales office.There is, however, an easy to overlook application of the ADA Standards that creates a trap for the unwary. With a single phone call making a perfectly sensible business decision the manager of a Home Owners Association can turn private amenities into public accomodations that must comply with the ADA. More
Sometimes even surrender doesn’t work as a way to cut off the expense of litigation. A good Rule 68 offer of judgment will moot the claims and require dismissal under the holding in Deposit Guaranty National Bank v Roper, but making such an offer in an ADA lawsuit can be very difficult. A recent case from the Middle District of Florida, Duldulao v. La Creperia Café, illustrates the problem. The plaintiff’s complaint was, according to the court, “an obvious cut and paste job” that failed to give fair notice of the claim. The defendant’s offer of judgment was, of necessity, equally vague. The court concluded that because it could not meaningfully compare the offer of judgment to whatever relief might finally be granted the offer of judgment process was “unavailable.” It refused to dismiss based on the Rule 68 offer. More
In her song “Raised on Robbery” Jonie Mitchell describes a man “sitting in the bar of the Empire Hotel, drinking for diversion and thinking for himself” while he watches a hockey game that he’s bet on. I thought about that song when I ate lunch with a wheel chair bound at a local restaurant. We had no trouble being seated; there were plenty of accessible tables. What we couldn’t do was see the three large flat screen TVs behind the bar because the bar area only had raised tables and raised booths.
Does the inability to sit in the bar or see a TV amount to discrimination against those with disabilities? It depends on how you look at the business of the restaurant. If the restaurant is only selling food and drink then a person with a mobility disability gets the same thing everyone else does – food and drink. But if the restaurant is the experience of drinking and watching a hockey game the disabled person is out of luck. More
A couple of recent unpublished decisions provide good examples of how ADA lawsuits can result in what looks to me like unnecessary expense, and how the Courts have created a standing battleground that does no one any good.
In Kreisler v Second Avenue Diner Corp. a wheelchair bound man sued a local diner that he More