“Odd and Ends” is the title of a Bob Dylan concert compilation film that was recently released in digital format.³ My odds and ends are probably not as interesting, but I’ve been busy for the last month litigating claims under the FHA and ADA, so this blog is part one of a two part effort to catch up. I’m hoping to release a “greatest hits” blog in the near future.
Pursuit of Respect keeps sending demands
I’ve gotten a dozen calls in the last few weeks from businesses in Pennsylvania, California and Florida who got demand letters from one attorney or another claiming to represent Pursuit of Respect. When I last checked none of those lawyers had filed a lawsuit, which I believe is because their client is fictitious and they’d rather not expose themselves to any kind of judicial inquiry. They will, however, keep harassing businesses that don’t respond with calls and additional letters. If anyone reading this knows of a lawsuit filed on behalf of POR I would be very interested in hearing about.¹
New serial filers in the Dallas-Fort Worth area
Two new serial filing law firms – the Law Offices of R Bruce Tharpe and Sapp & Sturgill PLLC – have been filing multiple lawsuits. Tharpe and his plaintiff, Zachary Perkins, targeted an area of mostly Korean and Asian owned businesses in West Dallas. Sapp and Sturgill and their client Maribel Munoz have covered a larger area. When I last checked Sapp & Sturgill were dismissing all their cases in the Fort Worth Division of the Northern District of Texas rather than respond to Judge O’Conner’s special requirements for ADA lawsuits. There is no similar procedure in the Dallas Division and the cases may get more traction there. Tharpe seems to be successfully settling his cases for $3,000 each.
DOJ enforcement of FHA design/build requirements seems to be rising.
Just based on reading the headlines and calls I get DOJ seems to be stepping up its enforcement of the design/build requirements for multi-family housing under Section 3604(f)(3)(C). A typical recent press release can be found at: Justice Department Resolves Lawsuit. I’m aware of one case in which DOJ has reached back to sue a contractor and architects on projects that are more than 20 years old but what is most surprising is lawsuits concerning projects completed in just the last year or two. It is clear that thirty years after the publication of the first FHA design standards many architects and designers are still unable to design to those standards and that many contractors will not build with sufficient precision to meet the standards even when the plans are correct. Developers are liable for the mistakes of design professionals and contractors, and with DOJ seeking hundreds of thousands of dollars in penalties the cost of plan and construction review looks pretty reasonable.
HOA’s have duties when their members misbehave.
Fair Housing Center of Central Indiana, Inc. v. Twin Creeks Homeowners Association, Inc. 2021 WL 19538 (S.D. Indiana 2021) is a reminder that homeowners associations, like landlords, have a duty to control discrimination when they have the power to do so. The facts, at least as pled, were pretty awful, but message would apply to any case in which an HOA knows that a resident is engaged in behavior that is abusive and based on race, religion, disability and other protected categories. Doing nothing isn’t an option, and if there is a question about what can be done it’s a good idea not to wait two years before talking to a lawyer.
You don’t always get what you want
The Rolling Stones famously observed that “you can’t always get what you want, but if you try sometimes you might find you get what you need.”² In Parham v CIH Properties, Inc., 2015 WL 5294 (D.D.C. 2015) the plaintiff wanted an accommodation for her disability in the form of an accessible first floor apartment. The landlord offered two different available apartments that were not fully accessible, but were on the first floor. The plaintiff sued for denial of her accommodation request, but the Court found she had not been denied a “reasonable” accommodation because she was offered a reasonable alternative to what she wanted. The landlord did everything right in this case, and it is a good reminder that the FHA’s reasonable accommodation requirement doesn’t guarantee the tenant exactly what they want. By looking for solutions instead of just fighting back against an unreasonable request a landlord can avoid ever denying a request, because offering a reasonable alternative to an unreasonable request is not a denial of the unreasonable request.
The Eleventh Amendment and the FHA
Bouchgl v. Tonti Mgmt Co. LLC et al, 2021 WL 40188 (E.D. La 2021) is a short opinion about a long subject, 11th Amendment immunity for states and their agencies. The et al in the title were the Louisiana Department of Justice and the Louisiana Attorney General, both agencies of the State of Louisiana. The Eleventh Amendment to the U.S. Constitution makes the states generally immune to lawsuits in federal court unless Congress waives that immunity. The Court simply applied the Fifth Circuit’s holding in an earlier case to find that Congress did not clearly waive 11th Amendment immunity for Fair Housing Act cases.
The interactive process is a defense.
In Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1192 (9th Cir. 2021) the Ninth Circuit made its there is no “standalone” liability under the FHAA for a landlord’s failure to engage in an “interactive process” with a tenant. I have seen “failure to engage in the interactive process” as a claim in suits brought by governmental entities as well. The notion that the FHA requires engaging in some process of interactivity comes from Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996), as amended (Aug. 26, 1996), which held that a landlord skeptical of a tenant’s accommodation request was obliged to request additional documents or “open a dialogue.” HUD has also picked up on the idea, whose origin can be found not in some part of the FHA, but in Title I of the ADA, which requires employers to engage in this process. Howard v HMK reminds landlords that the “interactive process” is a good idea and even a defense, but not a requirement. Landlords should engage with tenants who want an accommodation because they don’t want to find out after a HUD complaint or lawsuit is filed that the request for accommodation was valid but poorly presented. My suggestion for landlords is never reject an accommodation until the tenant has failed at least twice to provide the required reliable evidence of disability and need. And not by coincidence, I offer (for a fee) a webinar on dealing with accommodation requests that provides more detail on minimizing risk while eliminating bogus requests, especially for emotional support animals. Email me if you’d like more information.
State efforts to combat ESA fraud continue
An article by Seyfarth Shaw’s Title III blog recounts the latest effort in California to use state law to limit ESA fraud. California Governor Takes Action to Combat Emotional Support Animal Fraud. William Goren has also written about the decision at California Assembly Bill #468. Unfortunately, as the blog points out, state laws cannot override or limit the Fair Housing Act or ADA. ESA fraud exists because HUD and DOJ decided decades ago that they would promote service animal and ESA fraud by denying businesses the tools necessary to combat fraud and by embracing the pseudo-science that underlies the entire ESA industry. At the same time, neither DOJ nor HUD has shown any interest in acting against those who sell bogus ESA certificates or voodoo solutions to website accessibility problems, both of which harm the disabled. State laws like the one in California reflect a growing frustration with the unwillingness of these agencies to take action to protect both those with disabilities and businesses from the scams that underlie most FHA and ADA Title III litigation.
DOJ opines on self service kiosks
On September 20 DOJ filed a Statement of Interest in the ongoing Vargas v Quest Diagnostics case. The content of the statement is unremarkable. Without taking a position on the facts DOJ explained why making a touch-screen self service kiosk the only way to access services discriminates against the blind and others who cannot readily use touch screens. This is a discussion that has been going on since at least 2014(4) and the issue hasn’t changed. Touch screen devices are an attractive option for providing customer service, particularly if the service is automated, because they don’t require people, which are expensive, to provide service. In a pandemic era they also avoid human contact that can be dangerous. Unfortunately they are generally unusable by individuals who are blind because you have to see what you are supposed to touch. Relying exclusively on touch screen devices is pretty obviously discriminatory. The interesting question is what kind of alternative is required? The claim in Vargas v. Quest was that customers who did not check in via touch screen were required to wait longer. That is just a claim and it may not be true, but any business tempted to replace people with touch screen devices should consider carefully providing an alternative that is equivalent in convenience and results.
¹ For more details see my blog Same old wine in a brand new bottle. The song is by Loggins & Messina from their 1971 album “Sittin’ In.”
² “You Can’t Always Get What You Want” by Mick Jagger and Keith Richards from the 1969 album “Let it Bleed”
³ The film is from Sony Music Entertainment. You can find information on how to watch/subscribe/buy it at https://www.youtube.com/watch?v=s_BuSmlIGV4. It turns out “odds and ends” is also the title on any number of other albums and music related projects, not to mention works of art and blogs. I recommend that you not go down that rabbit trail.
(4) see my blog The next wave – ADA lawsuits against touchscreen POS devices