Does this look like a “service, program or activity?” The official position of the Department of Justice is that every city facility – sidewalks, buildings and the like – must be made accessible because building and maintaining those facilities is a “service, program or activity” of the city. The Fifth Circuit agreed in what has been a leading case on this issue, Frame v. City of Arlington. Now it appears this view is not unanimous. Just a month ago, in Babcock v. Michigan, 2016 WL 456213, (6th Cir. Feb. 5, 2016) the Sixth Circuit found that the Fifth Circuit was wrong, and that:
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, municipal government, Public Facilities, Title II Tags: cities, contribution, government contracts, indemnity, muncipalities
Concepts like “privatization” and “resource sharing” and “public/private partnerships” sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.
In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance. More