The decision in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790 (S.D. Ohio Sept. 28, 2018) has the potential to create a significant change in how FHA design/build cases are litigated. It also provides litigants with a treatise on the most important evidentiary issues faced by both plaintiffs and defendants. The critical take-away for apartment owners and developers is that proof of deviations from the various FHA safe harbors is not conclusive evidence of an FHA violation. That means defendants who own or build apartments that are accessible but have technical deviations from FHA design/build safe harbors will be given the chance to talk about what matters to the disabled, that is, accessibility. More
ADA website regulation – half empty, half full or just empty?
On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.
DOJ revamps its online information about Title III of the ADA
Yesterday the Department of Justice rolled out a new online technical assistance webpage that cleans up a lot of the organizational problems I’ve blogged about in the past.* You can find it here. It isn’t perfect. You might wonder why, for example, we still have both a “Primer for Small Business” and a “Guide for Small Businesses” as well as two different documents concerning service animals. DOJ’s habit of publishing one topic guidances can be helpful, but the failure to consistently integrate them into more comprehensive documents makes it hard for businesses to have a single consistent place to go when they need information. We really need a well organized on-line encyclopedia of ADA guidance in plain language so that a business looking for a particular answer doesn’t have to guess which of the many available on-line documents will have it. It is also notable that DOJ still has materials written before the publication of the 2010 Standards as well as materials concerning communication that are more than 15 years old and therefore very likely to be out of date in light of technological developments.
Still, the re-organization is a welcome change and should be of some benefit to businesses interesting in maintaining ADA compliance without necessarily calling a lawyer.
* See, “Fighting fake ESA’s – Guidance on what constitutes reliable evidence of disability“
“Readily Achievable” – It’s as easy as pie – maybe.
I have often discussed the benefits of mootness as a defense in Title III ADA cases. Simply fix the problem and the plaintiff’s right to sue evaporates. Unfortunately, not all problems can be easily or cheaply fixed, leaving the defendant in the unpleasant position of having to spend an absurd amount of money or make an irritating settlement that pays the plaintiff’s lawyer to give up the claim. When the cost to fix a problem is high, the “readily achievable” standard in the ADA comes into play and can help the defendant.
ADA Website Litigation – a new webinar
I’m going to presenting a webinar on ADA website litigation for the University of Texas School of Law CLE program on Friday the 28th. Here is the registration information:
Live from the UT CLE Studio on September 28, 2018 from 11:30 a.m. to 12:30 p.m.
1.00 hour CLE, $65
https://utcle.org/conferences/ZQ18
Website Accessibility Lawsuits
Lawsuits claiming the ADA requires that websites be accessible to those with disabilities are being filed in record numbers against businesses small and large. This seminar will explain what “accessibility” means for websites, the legal theories behind such suits, the still confused state of the law, and effective strategies for dealing with a claim against your client.
If you cannot watch the entire webcast at its scheduled time, register now and view the recorded eCourse when it is available in “Your Briefcase” after the webcast. Earn CLE credit (in TX and CA) on your time!
This won’t be free, but those of you who are attorneys will receive CLE credit for the course.