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.
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
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:
*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
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.
*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.
Get it right the first time – the problem with “temporary” obstructions
By Richard Hunt in Accessibility Litigation Trends, ADA Mootness, ADA Policies Tags: ADA, ADA Policies, ADA remediation, mootness, Starbucks
Billy Joel had a major pop hit in 1977 with “Get it Right the First Time” from “The Stranger.” Forty years later Starbucks has proven just how true this is. In Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) the Court reminded Starbucks and every other public accommodation that “get it right the next time” is not the same thing as getting it right the first time. In fact, it is the difference between winning and losing.
The issue of interest in Crandall v. Starbucks concerned access to a counter that was blocked by a point of sale display. This is not a first for Starbucks as we described a couple of years ago in POS Marketing and ADA Compliance – you can’t have it both ways. In the earlier Kalani v. Starbucks case the defense was that POS sales items were only temporary barriers because they could be easily removed. The Court disagreed because, in its view, the POS displays were intended to be permanent even though they could be moved.The displays at issue in Crandall were a standing display placed so close to the counter that it intruded into the required 36 inches of clearance as well as displays on the counter itself. Some time after the lawsuit was filed the standing display was moved out of the way and the counter displays were removed. This, according to Starbucks, eliminated the need for any relief and required a defense summary judgment.
The Court disagreed, noting that the changes were not structural or permanent because the displays at issue were easily movable. Equally important, there was no evidence that Starbucks had adopted any policy against on-counter displays or concerning the placement of merchandise displays. Because Starbucks could re-create the barriers to access at any time the case was not moot.
So far, so bad, but worse was coming. The Court found the existence of a violation at the time the plaintiff visited and on two later occasions was established as a matter of law, refused to credit Starbucks’ argument that its employees would always move the displays to a correct position, and granted summary judgment for the plaintiff. “Get it right the first time” and there’s no lawsuit at all. “Get it right the next time” and you’ll be paying the plaintiff’s attorneys fees while contemplating a permanent injunction. In cases involving things like displays that employees place and move, getting it right the first time means having a policy in place before there is a lawsuit that requires employees to maintain an accessible premises.*
Crandall v Starbucks includes a complaint that the required route was not 36 inches wide, but it seems the Court granted summary judgment for the plaintiffs because it was undisputed “that when there are customers in the store the displays make the path of travel too narrow.” Id. at *14. The Court also found that accessible routes might be blocked in the future based on the “absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel.” In both cases the problem identified by the Court is not any structural feature of the restaurant, or even a problem with where the furniture was placed by the staff, but rather a problem with the conduct of other customers.
It isn’t difficult to imagine that in an informal space like a coffee house or bar customers will feel free to move chairs and even tables, and may congregate in areas that are part of an accessible route. The ADA prohibition on “discrimination” applies to the design and construction of public accommodations and the removal of “architectural barriers and communication barriers that are structural in nature.” It doesn’t say anything about regulating the behavior of other customers. Starbucks has not been afraid in the past to take cases to the Ninth Circuit, and it would be nice in this case to get a definitive rejection of the notion that businesses are required to regulate customer behavior in order to comply with the ADA. In the meantime, businesses that are crowded or are pushing the limits of accessibility should be be careful.
*In a ruling this week a Magistrate Judge in the Western District of Pennsylvania approved class certification for a lawsuit against Steak & Shake that appears to rest primarily on a failure to properly maintain its parking lots. Last year this time we blogged about a similar lawsuit against Cracker Barrel restaurants brought by the same law firm. Does the ADA Require a Compliance Policy? Every temporary barrier caused by a lack of maintenance can turn into a permanent injunction if the right policies are not in place before a lawsuit is filed.