I’ll be presenting a webinar for the National Retail Tenants Association on November 13, 2013 at noon EST. I’ll be covering ADA matters of interest to retail tenants. There’s more information at www.retailtenants.org if you click on the webinar tab.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, retail
On September 30 the District Court for the Eastern District of California denied in part and granted in part a defense motion for summary judgment concerning ADA compliance in the mens restroom at a Bed Bath & Beyond. Feezor v. Excel Stockton LLC, 2013 WL 5486831 (E.D.Cal. 2013). In a 5300 word opinion the Court mentions only once the general rule that a facility should be accessible to and usable by those with disabilities. The rest of the opinion discusses a purely technical interpretation of the Guidelines and Standards that never asks the question: “does this really matter to a person with a disability.”
The longest part of the discussion concerns the portions of the Guidelines and Standards describing the required clear floor area on the pull side of a swinging door. As presented to the Court, it appears the dispute centered on the significance of a “thick solid black line” in the drawings illustrating the clear floor space requirement. Id. at *4. The plaintiff contended that the line represented a wall, and that the inclusion of the wall in the drawing meant that a wall with a minimum length was required. The defendant disagreed. The Court dug into the language of the Guidelines and Standards, prior case law, and the alleged colloquial meaning of the word “strikeside” before concluding that the “thick solid black line” was not intended to indicate that a wall was required. More
Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.
95% of the ADA lawsuits filed in Texas and elsewhere seem to start with barriers to access in the parking lot. It isn’t hard to understand why. Before the effective date and for many years afterwards business owners believed that a ramp up to the existing curb next to a marked parking spot was all the law required. The picture at left shows the typical ramp that resulted. I recently visited a client site and between the highway exit ramp and the his location I noticed more than a dozen strip shopping centers and small businesses with precisely this “solution” to the problem of accessible parking.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail Tags: ada litigation, ada violation, mental health disabilities, service animals, support animals, therapy animals
With widespread media coverage of disputes about service dogs in bars and restaurants disability advocates, real and self proclaimed, are predicting an explosion of litigation about service dogs under the Americans with Disabilities Act. There has been no change in the statute itself, and the Department of Justice regulations for service dogs went into effect in 2011. However, as with other kinds of ADA litigation, it has taken some time for the implications of the law to work their way into the popular consciousness.
The easy situation for any business is a person with an obvious disability who comes to a business with a well behaved service dog wearing a vest or other identification. The ADA is clear – the dog and owner must be allowed in the store or restaurant even if there is a “no pets” policy in place. The harder situation, and the one that leads to media coverage and lawsuits, occurs when a person who has no obvious disability arrives with an unmarked dog and a bad attitude. Dealing with this situation, and any resulting problems, requires careful thought about just how service dogs fit into the ADA’s scheme of disability rights. More