Since 2010 the Department of Justice has been in the process of creating rules for web access under the ADA. No rules have been proposed, and this month the DOJ announced that it was splitting the proposed rule making into two parts and delaying the issuance of a notice of proposed rule making for both. The original proposed rules were to cover both Title II entities (cities other municipalities) and Title III entities (private businesses operating as places of public accommodation. The Title II rules will now proceed as a separate process with an earlier proposed date. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family Tags: Apartments, assistance animals, Condominiums, FHA Litigation, Pets, service animals, therapy animals
On July 1 the Department of Justice announced the filing of another lawsuit challenging what it calls discrimination based on the refusal to allow a therapy animal without a pet deposit. U.S. v Barber, 3:13-05539 (W.D. Wash). Coming on the heels of HUD’s April 25 “Notice Concerning Service Animals and Assistance Animal” the lawsuit is another reminder that this particular FHA violation is of special interest to the government regulatory agencies. It also suggests that apartment owners and managers need to tread carefully and think clearly about how they approach requests for assistance animals. After all, there is no animal more dangerous than a lawyer with a plausible claim. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, architects, Condominiums, contractors, FHA Litigation
On April 30, 2013 HUD and the Department of Justice issued a “Joint Statement” concerning FHA issues. It includes some straightforward tips about compliance with the FHA, but also includes some examples of how these agencies pick and choose among statutes and regulations in ways that might be hard to predict.
The first example is found in item 59. Both HUD and DOJ reject the 9th Circuit’s understanding of the statute of limitations in FHA cases although it is the highest court authority on the issue. In Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) the Ninth Circuit held that design/build claims under the FHA accrued for limitations purposes when the project was completed. This result can be avoided only by alleging a continuing practice of discrimination (see cases cited in National Fair Housing Alliance, Inc. v. HHHunt Corp., 2013 WL 335877 (W.D.Va. 2013)). Despite this, HUD flatly states that it will accept complaints based on its own interpretation of the law. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail Tags: ada litigation, ADA pleading, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants
A case decided just last week, Dodson v. Strategic Restaurants Acquisition Co., 2013 WL 3120322 (E.D. Cal. 2013) is worth study for any ADA or FHA defense attorney. There is plenty of technically useful information because the Court has provided an extensive survey of cases discussing whether Iqbal and Twombly apply to affirmative defenses. This is an unsettled question, and the Court lists many of the pro and con authorities. There is also an important moral lesson for defense attorneys. The Court isn’t likely to hold the defendant to a lower pleading standard than the standard for the plaintiff. What’s sauce for the goose is sauce for the gander.
Starbucks has a long history of litigation about the height of its pickup counters. In 2003 Starbucks settled a claim by a California disabilities rights group concerning the height of its pickup counters. In 2011 Starbucks obtained the dismissal of another pickup counter height lawsuit, Chapman v. Starbucks, 2011 WL 66823 (E.D.Cal. 1022) based on mootness. The counter had been lowered to comply with the ADA requirements. In 2012 Starbucks settled a case that included counter height allegations in the Southern District of Florida. Access 4 All, Inc. v. Starbucks, Case No. 0:11-cv-61010 (S.D. Fla.). The settlement terms do not appear in the record, but most ADA settlements include remediation plus attorney’s fees, so it is a reasonable guess that Starbucks had to lower the counters in the 4 stores at issue. Just a few days ago, on June 5, 2013, a different District Court awarded Robert Cruz some $145,960.07 in attorney’s fees for his successful action against Starbucks concerning one Starbucks store. The Consent Decree in that case called for lowering the pickup counter. Cruz v. Starbucks Corporation, 2013 WL 2447862 (N.D. Cal. 2013) and see Docket 29-1 in the underlying case, 3:10-cv-01868. More