FHA and ADA Odds and Ends

September 22, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA FHA General, ADA FHA Legislation, DOJ, FHA, FHA design/build litigation, FHA Emotional Support Animals, Uncategorized Tags: ADA defense, Emotional Support Animals, ESA fraud, FHA Defense, Pursuit of Respect

“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.

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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

ADA and FHA Quick Hits – dog days of summer edition

August 8, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Bars, ADA Internet, ADA Internet Web, ADA Mootness, ADA Website Accessibility Tags: accessible bar seating, ADA defense, ADA Mootness, FHA Defense, Robles v Dominos, Strojnik

The constellation Canis Major rises and falls with the sun during the hottest part July and August; hence the “dog days of summer.” Although only mad dogs and Englishmen go out in the midday sun* the courts have been busy working in air conditioned chambers on ADA and FHA matters:

Just what is an accessible website?

Wright v. Thread Experiment, LLC, 2021 WL 243604, at *4 (S.D. Ind., Jan. 22, 2021) is a default judgment case, but it remains interesting because the Court expressly declined to order compliance with any version of WCAG, choosing instead to enter a much less specific permanent injunction ordering that the Defendant be enjoined:

from operating, utilizing, or maintaining www.threadexperiment.com unless and until it fully complies with the requirements of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and its implementing regulations, 28 CFR § 36.302 et seq. Defendant is ORDERED to modify the existing features of www.threadexperiment.com and to remove barriers that prevent this website’s compatibility with screen reading technology so that it is accessible to blind or low-vision individuals utilizing screen reading technology.

The first sentence of this injunction seems to violate the general rule against injunctions that simply order compliance with the law. See, e.g., E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir. 2013). As the Court observes, there are no regulatory requirements for websites, so the first sentence is just an order to follow the ADA.

The second sentence sounds better, but imposes an impossible obligation on the website owner; the very same impossible obligation that every court applying the ADA to websites has imposed. The phrase “screen reading technology” embraces all the available screen reading software, including versions that may be out of date and no longer compatible with modern browsers. This may be technically impossible. Worse, however, is the phrase “accessible to blind or low vision individuals.” This phrase only invites litigation because no one knows just what “accessible” means in this context.

In the world of physical spaces “accessibility” is defined by the standards published by the Department of Justice. A store or building is “accessible” if it meets those standards even if not every disabled person can in fact enter the store or buy its goods and services and even if a person with a disability suffers some inconvenience in using the facility.

For websites there is no clear line between being inaccessible and being merely difficult to use, and difficulty in use may depend on the training and experience of the screen reader user. There is also no clear line between what parts of a website must be accessible in order to comply with the ADA’s prohibition against discrimination in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of a website. A poorly designed website may be hard to use for non-disabled users; does that mean it is accessible if it is equally hard to use for those with disabilities? Modern websites also frequently include bells and whistles that are intended more to attract purchasers than to facilitate their purchases. If a disabled user can locate and buy what they are seeking is it important that they also have some kind of access to images intended only to catch the eye? I suspect the plaintiff in this case will never consider taking on these questions, but they cannot be ignored by courts that must finally order ADA compliance in some form.

**After all the shouting, Robles v. Dominos ends with an argument about technical details.**

In Robles v. Domino’s Pizza LLC, 2021 WL 2945562 (C.D. Cal. June 23, 2021) the District Court began the process of actually wrapping up the saga of Robles v. Dominos. Ruling on cross-motions for summary judgment the Court made a number of rulings and observations that may trigger even more appeals.

Discussing the problem of just what “accessible” means the Court made this observation:

Had Defendant’s expert determined that its website was fully accessible, the Court would be forced to wade into a sticky question: what level of technological capabilities is required of a blind website user such that the failure of JAWS technology is necessarily the fault of the website owner? However, Defendant’s expert, using up-to-date technology, found that the website was not fully accessible.

A sticky question indeed since learning to use screenreader software is not that easy. The court found a way to avoid these problems by ordering compliance with WCAG 2.0, a standard that like the ADA physical access standards claims to be independent of any user’s abilities. How the Court squares this with its own earlier observation that WCAG 2.0 compliance is not synonymous with ADA accessibility isn’t discussed. I imagine an appeal is in the offing.

Turning to the 9th Circuit’s requirement of a nexus between a physical store and a website or app the Court found that despite the fact the local Dominos stores were franchises while the website and app were owned by the corporation the necessary nexus existed. This looks like an appealable issue as well since “nexus” remains a poorly defined concept that has been very narrowly interpreted in the 11th Circuit.²

Although the plaintiff has clearly won this round the case is not over. Accessibility of the device app for Dominos was found to be the subject of a fact dispute that will require a trial. And this case can be filed under supplement jurisdiction of Unruh Act claims retained (see below). Stay tuned for what the inevitable future developments.

Bar seating – yes, wheelchair accessible seating is required.

I’ve written before about the problem posed by accessible seating at a bar.¹ In Mortland v. Loc. Cantina Dublin LLC, 2021 WL 3033355, at *12 (S.D. Ohio July 19, 2021) the court had no trouble finding that accessible seating next to a bar was not sufficient to meet the 2010 Standards for Accessible Design although it would have been sufficient under the original ADAAG. With the observation that “Enjoying a drink at a bar can be one of life’s simple pleasures” the court rejected the notion that seating nearby was enough. The notion that the ADA requires equivalent experiences in restaurants and shops as opposed to equal access to goods and services is one that ignores the fundamental reality that those with disabilities cannot have the same experience in some cases and that measuring equality of experience between those with and without disabilities is a hopelessly subjective task. Finally, in a hopefully soon to be irrelevant holding the court observed that the 5% accessible seating requirement in the ADA applies to a restaurant in its usual configuration; not in a reduced seating configuration due to Covid-19.

Expert witnesses

Antolini v. Thurman, 2021 WL 3115169, at *4 (S.D.N.Y. July 21, 2021) is another case in which a party (in this case the plaintiff) failed because the expert failed to provide specifics. Mortland v. Loc. Cantina Dublin above demonstrates the same problem for the defense. Compliance with the 2010 ADA Standards is measured in inches and degrees of slope, and ready achievability is measured in dollars and cents. Without those details expert testimony will generally not be sufficient.

Counter clutter in theory and in fact.

Fernandez v. O’Reilly Auto Enterprises, LLC, 2021 WL 3403742 (C.D. Cal. Aug. 3, 2021) is one of those rare ADA cases that went to trial, meaning that the truth, rather than the willingness of the plaintiff to allege things, mattered. The evidence showed two things; the ADA compliant service counter had some stuff on it, and that the stuff did not make it impossible for the plaintiff to use the counter. Defense judgment.(4)

Mootness – On the way is not the same as being there

Fernandez et al v. Duke University, 2021 WL 3207244, at *4 (M.D.N.C. July 29, 2021) has a good discussion of issues concerning standing, but the important message for businesses engaged in website litigation is that until a website (or a physical space for that matter) is accessible a lawsuit is not moot. Duke’s argument that it was in the process of replacing its alumni web portal wasn’t enough to moot a claim that the old portal was inaccessible.

And for dismissal – too soon is too soon

Defendants anxious to get rid of an ADA claim they think has no merit may be tempted to raise substantive defenses in a Rule 12(b) motion. Johnson v. Garden Court Inn, LLC, 2021 WL 3209721, at *5 (N.D. Cal. July 29, 2021) explains why this won’t work. When a business chooses to defend an ADA claim choosing when to raise defenses is critical to avoid wasting money on futile motions.³

A similar problem came up in Whitaker v. Surf & Turf, LLC., 2021 WL 3427122, at *5 (N.D. Cal. Aug. 5, 2021), with the defendant claiming that an allegation that the defendant’s tables lacked knee and toe space was not sufficiently specific. Just exactly when an ADA complaint lacks specificity can depend on the particular judge and complaint, so the money spent on this kind of motion to dismiss might be better used on substantive defenses (or remediation).

ADA non-compliance as evidence of negligence

In Pandya v Marriott Hotel Services, 2021 WL 3464263, at *10 (N.D. Ga. Aug. 5, 2021) the court followed Georgia state court precedent to find that “evidence that the threshold failed to comply with ADA standards “constitutes some evidence from which the jury could find that the [threshold] constituted a hazardous condition.” The same result will not apply in every state as I and others have observed.(5)

The scope of an ADA plaintiff’s claim

Whether an ADA plaintiff has standing to sue for violations they did not encounter is a question that has different answers in different circuits. In the 11th Circuit the answer is “no” as shown in Disabled Patriots of America, Inc. v. Tropical Paradise Resorts, LLC, 2021 WL 3371898 (S.D. Fla. Aug. 2, 2021). The answer is different in the Ninth Circuit and others.

And now for the quickest of quick hits concerning the usual topics.

Hotel website cases holding that compliance with DOJ regulations is sufficient to satisfy the ADA:

Love v. Chsp Trs San Francisco LLC 2021 WL 3141198, at *1 (N.D. Cal. July 26, 2021)

Marquez v. Diamondrock Hb Owner, LLC, 2021 WL 3208033, at *3 (C.D. Cal. July 29, 2021)

Love v. FYI MC, LLC, 21-CV-02845-EMC, 2021 WL 2913654, at *1 (N.D. Cal. July 12, 2021)

Love v. Concord Hotel LLC, 21-CV-00933-VC, 2021 WL 2966164, at *2 (N.D. Cal. July 15, 2021)

Whitaker v. San Franscisco Airport South TL, L.P., 2021 WL 3271384, at *1 (N.D. Cal. July 30, 2021)

prejudice.

Arroyo v. PHI Associates, L.P., 2021 WL 3270764, at *5 (N.D. Cal. July 30, 2021)

Gary Scherer v. SMI Hotel, LLC, 2021 WL 3355279, at *2 (C.D. Cal. July 29, 2021)

Hotel website cases dismissed for lack of standing.

Sarwar v. Gopinathjee LLC, 2021 WL 3163971, at *4 (D.N.J. July 27, 2021)

In Shumway v. Shree Shatriji, LLC, 2021 WL 3385298 (W.D. Tenn. Aug. 3, 2021) and Shumway v. Mira and Jenshi, LLC, 2021 WL 3354845 (W.D. Tenn. Aug. 2, 2021) the Court granted the plaintiff leave to amend to add allegations that might show she has standing to sue. You can read more about her in my earlier blog “Quick HIts – almost Bastille Day edition.“

The cost of default

$2450 in attorneys fees plus costs and statutory damages in Avalos v. Sandhu, 2021 WL 3140489, at *13 (E.D. Cal. July 26, 2021).

$3,629.65 in attorneys fees and costs plus statutory damages, in Trujillo v. Alhumidi, 2021 WL 3077471, at *1 (E.D. Cal. July 21, 2021)

$1,425.00 in attorneys’ fees and $530 in costs. No statutory damages because the court declined supplemental jurisdiction over Unruh Act claims. Villegas v. Wong-One, LLC, CV 20-7291-RSWL-ASX, 2021 WL 2987151, at *7 (C.D. Cal. July 15, 2021)

$2,073.75, representing $1,855 in attorney’s fees and $218.75 in costs plus damages in Sepulveda v. Buelna, 2021 WL 3411197, at *11 (N.D. Cal. July 16, 2021)

$1,275 in attorneys’ fees, and $835 in costs plus damages in Whitaker v. Lucky OPCO LLC, 2021 WL 3427115, at *4 (N.D. Cal. Aug. 5, 2021)

$3,640.00 in attorneys’ fees and costs plus $12,000 in statutory damages in Johnson v. 12N Park Victoria, 2021 WL 3291890 (N.D. Cal. Aug. 2, 2021). The statutory damages are a reminder that default can be risky when the damages may exceed the usual $4000 in statutory damages under the Unruh Act.

$3,675.00 in attorneys’ fees and costs plus statutory damages in Love v. Icustom Clothing LLC, 2021 WL 3291885, (N.D. Cal. Aug. 2, 2021)

The indefatigable Peter Strojnik loses again.

Strojnik v. Patel, 2021 WL 3190866, at *3 (D. Ariz. July 28, 2021)

Strojnik v. Schnieder, 2021 WL 3144625, at *2 (D. Ariz. July 26, 2021)

Retaining supplemental jurisdiction over Unruh Act claims

Johnson v. Garden Court Inn, LLC, 2021 WL 3209721, at *5 (N.D. Cal. July 29, 2021)

Whitaker v. Surf & Turf, LLC., 2021 WL 3427122, at *5 (N.D. Cal. Aug. 5, 2021).

Declining supplemental jurisdiction over Unruh Act claims.

Heras v. MJ’s Pinoy Fiesta Inc., 2021 WL 3033588, at *3 (C.D. Cal. July 18, 2021)

Villegas v. Wong-One, LLC, 2021 WL 2987151, at *7 (C.D. Cal. July 15, 2021)

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* The words come from a song by Noel Coward, but the expression was striking enough to be the title of an album by Joe Cocker and a different song by Leon Russell.

¹ “Can you sit in a wheelchair while you stand at the bar?”

² See, “Because of Winn-Dixie”

³ The Western District of Pennsylvania is one of several that imposes special conference requirements on Rule 12(b)(6) motions because pleading defects can so often be cured by amendment, making the entire battle over the original pleading pointless.

(4) I’ve discussed counter-clutter before, “POS Marketing and ADA Compliance” It is notable that in O’Reilly, the court asked whether the counter was usable, not whether there was 36″ of clear space as in the Kalani v Starbucks case I discussed in 2015. When push comes to shove it is accessibility that should matter, but the reality of accessibility isn’t determined until summary judgment or trial.

(5) See “Personal injury and the ADA” and other blogs, as well as Bill Goren’s blog Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice

Need to get rid of some blood? Plasma donation centers and the ADA.

July 23, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA, Medical Tags: ADA defense, Gomez v CLS Plasma, goods v services, Half Price Books

Lady McBeth staring at blood on her hands Lady McBeth notoriously had a problem with some blood she needed to get rid of. It wasn’t a lot, but suppose she wanted to unload a pint of plasma at her local donation center. Would she be going to a service establishment subject to the ADA, or would this be some other kind of commercial transaction? That question is the subject of a recent DOJ Statement of interest that I’ll discuss in a minute. First though let’s take a look at buying and selling things in general. More

DOJ announces that there is no safe harbor for physical accessibility.

July 19, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA Internet, ADA Internet Web, ADA regulations, ADA rulemaking, Hospitality, Hotels, Inventory requirements Tags: accessible beds., ADA defense, FHA Defense, Hotel beds, Migyanko v. Aimbridge

boat at anchor in a quiet lagoon Early last month the Department of Justice filed a “Statement of Interest” in Migyanko v. Aimbridge Hospitality LLC¹ that should give pause to every business subject to Title III of the ADA; that is, every business. Two sentences from the Statement of Interest are of particular concern:

“The ADA Standards do not address every aspect of physical accessibility.”

and

“Of course, in the absence of specific requirements for bed height, hotels have some degree of flexibility in making reasonable modifications to provide usable beds for a person with a disability. This flexible standard is inherently fact-specific.”

To understand why these innocuous statements are of such concern requires a look at this case and the problems created when DOJ declares that something is discriminatory without defining what discrimination means. More

Quick Hits – almost Bastille Day edition

July 12, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation, ADA Class Actions, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA defense, ADA standing, FHA Defense, hotel accessibility information

Delacroix painting Liberty Leading the People Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More

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