Accessibility Defense, Helping Business Avoid and Defend ADA and FHA Lawsuits

ADA and FHA Defense

  • Source-of-income discrimination under the FHA

    That title is a little misleading because, in fact, the federal Fair Housing Act does not prohibit source-of-income discrimination.¹ I noted just this morning a case from Maryland² discussing a specific issue related to source-of-income discrimination and thought this was a good reason to take a brief look at source-of-income laws.

    I have to start by noting that the Poverty and Race Research Action Council is the source for my information on these laws because they conduct an annual survey of state and local source-of-income discrimination laws.³ Not all of these laws are created equal. In Texas, for example, the law concerning source of income discrimination forbids such laws, part of an effort by a conservative legislature to keep more liberal cities from passing such laws. The Wisconsin law has been interpreted to exclude Section 8 housing vouchers, which may be the most common kind of rental assistance, and as the PRRAC notes, other state laws have been weakened by interpretation as well.

    This kind of weakening (or merely interpreting, depending on your attitude) is what the Maryland Supreme Court is considering in Katrina Hare v. David S. Brown Enterprises, Ltd. The landlord in that case had an income qualification rule that permitted the rent to be no more than 40% of the tenant’s total income. The tenant, who lived on social security, had income of only around $800 a month, but had a housing voucher for about $1400 a month. Even counting the voucher as income, her total rent was far more than 40% of her income; in fact it was around 70% of her income because most of her income was assistance to pay rent. Her share of the rent, a few hundred dollars, was far less than 40% of her income even without rent assistance, but comparing the full rent to all her income meant she didn’t meet the landlord’s requirements.

    The landlord’s position was a simple “look at the words of the statute” argument. As written, the statute requires a landlord to treat a rent voucher as income and forbids discrimination based on source of income. The landlord claimed that it treated her voucher as income when calculating total income for its 40% rule and thus did not discriminate. The tenant’s position was practical. Tenants who get rental assistance usually have income that is far less than the rent they have to pay. If you add rent assistance that is equal to most of the rent to their existing income and do the landlord’s calculation the tenant will almost never qualify to rent the apartment for which they are getting assistance. Thus, the “look at the words of the statute” argument leads to the absurd result that landlords can still, in effect, discriminate based on source of income.

    I won’t guess how the Maryland Supreme Court is going to rule in this case, but it illustrates an important point for landlords and developers who are concerned about the administrative burden of accepting vouchers but do not want to violate source-of-income discrimination laws. You cannot just look at the PRRAC list and conclude that in the listed states and cities you must accept housing vouchers or, using the landlord’s argument in Maryland, assume you’ll be able to reject tenants with vouchers. The exact language of the law matters as do court decisions interpreting the law. Legislatures and city councils can learn the same lesson because if the goal is to require that landlords to accept housing vouchers and other rental assistance it may not be enough to simply outlaw source-of-income discrimination as the Maryland legislature has done.

    And as a final note, this is a more general problem with anti-discrimination laws. Everyone thinks they know what it means to say “thou shalt not discriminate” based on this or that, but not everyone “knows” the same thing. There is no easy statutory or regulatory path to achieving the goal of equal housing opportunity for all while at the same time not unduly burdening housing providers. There is also no easy way for landlords to be sure that because their motives are good they are doing what the law requires. If you are doing business in a jurisdiction on the PRRAC list an investment in closely examining the local source of income law will almost always pay off in the long run.

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    ¹ Source of income discrimination occurs when a landlord refuses to accept rent vouchers or similar third-party sources of income when evaluating the tenant’s financial ability to pay rent or, in some cases, simply refuses to accept rent payments from certain third parties, usually a government agency or a charity of some kind. It is never mentioned in the federal Fair Housing Act although it is forbidden by regulation for certain federally subsidized housing programs.

    ² See, Source of Income lawsuit

    3 See, PRRAC Source of Income Survey

    4 What, you don’t agree?


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  • Fighting fire with fire – is litigation the solution for serial ADA filings?

    ADA serial filers and their lawyers are not popular with the businesses they target, as illustrated very clearly by the recently filed  Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). But before discussing that case, I’d like to look at past attempts to use litigation against ADA serial filers and their lawyers.

    The earliest such lawsuit, Saniefar v. Moore et al, Case No. 1:17-cv-00823 (E.D. Cal.), settled in 2020 after the plaintiff won some preliminary discovery battles. The defendant serial filer, Ronald Moore, seems to have cut back on his filings in California after the settlement, but it seems he has continued to file lawsuits in other states, with at least 50 or 60 filings in Florida and New Jersey. This illustrates a basic point about serial ADA litigation – it is really just one kind of industrial litigation based on a high volume of lawsuits filed with the intent to get an early settlement. I have always believed that ADA serial litigation developed after tort reform legislation and restrictions on class actions made other forms of industrial litigation harder to pursue. If the serial filers can’t pursue ADA claims they will turn elsewhere because there are plenty of laws amenable to this kind of litigation.³

    In Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) a racketeering counterclaim against a serial filer was dismissed for failing to state a claim.¹ There may be lessons here for the latest plaintiffs using the RICO statute as a weapon against serial filers.

    In another 2018 decision,  Deutsch v. Annis Enterprises, Inc., 882 F.3d 169 (5th Cir. 2018) the Fifth Circuit upheld district court sanctions against an ADA serial filer and his attorney. It is an interesting case, but the conduct was so egregious there is little to learn that is of use for most ADA defendants (or plaintiffs for that matter).

    The same is true of Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), The ADA serial plaintiff and his lawyers were sanctioned for filing a frivolous claim. This seems to have slowed them down, for the attorney, Scott Dinin, was suspended from practice for 18 months and then notified the Florida Supreme Court he was no longer practicing law. He doesn’t seem to have filed any ADA cases after 2019 although his bar profile shows he is now in good standing.  In any event, Mr. Dinin’s problems did not slow the rate of ADA filings in Florida, with other lawyers and plaintiffs continuing to file industrial scale ADA litigation.

    Ghandi et al v. Ehrlich et al, Case No. 1:19-cv-03511 (N.D. Georgia) was filed in 2019 against a serial filer and his attorneys. The case was dismissed and the plaintiffs were sanctioned when they failed to come up with any evidence to support their claims. This is a perfect example of my belief that outrage is no substitute for a good defense.(4)

    In 2022 local district attorneys tried another tack in the highly publicized The People v. Potter Handy LLP, Case No. A166490 (Cal. App.). This was an attempt to attack serial filing firm Potter Handy using California unfair business practices statutes. The effort failed when the case was dismissed based on the “litigation privilege.” This is a privilege that protects people who file lawsuits from responsive lawsuits that allege the underlying cases were false or misleading. Lying in a court filing might lead to sanctions by the court in which the suit is filed, but it won’t generally give rise to claims that can support a separate lawsuit.

    Late last year, in Jimenez v. Senior Exch., Inc., No. 23-CV-323 (ALC) (JW), 2024 WL 1833808, at *8 (S.D.N.Y. Apr. 26, 2024) the plaintiff’s law firm was sanctioned a whopping $500, not for filing an improper claim, but for making a disingenuous excuse for dismissing the lawsuit to (apparently) avoid an unfavorable ruling on standing to sue. This has predictably had no effect on the firm’s continued ADA filings. It is rare for federal judges to impose a sanction that goes beyond the single incident before them. No matter what this judge might have thought about the plaintiff or his lawyers, the only real issue was a misleading court filing that didn’t really change the outcome.

    This is not a comprehensive list, but in general efforts to sanction ADA serial plaintiffs and their attorneys have not been notably successful. That is why the number of ADA filings fluctuates over time, but within a pretty stable range of between five and ten thousand federal cases each year. Industrial litigation is profitable and sanctions like those in Jimenez are just a cost of doing business.

    This brings us to Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). The Complaint alleges a broad conspiracy to file meritless ADA claims including 4000 or more demand letters and lawsuits in more than 15 states. Whether the allegations are true will no doubt be determined in court, but the central claims are:

    • The plaintiffs did not have standing to sue, and allegations supporting their standing to sue were knowing misrepresentations to the various courts and
    • The plaintiffs filed fraudulent in forma pauperis claims to avoid paying filing fees and other court costs.

    Because this and other misconduct involved allegedly illegal fraudulent conduct it added up to a violation of the RICO statute, which defines racketeering to include a conspiracy to violate various federal laws that make different kinds of fraud illegal.

    The case is in what might best be called the “press release” phase; that is, the case has been filed and the plaintiffs have publicized it. The defendants have responded by claiming the lawsuit is frivolous and threatening to seek sanctions, but have not yet filed an answer of any kind. Where the case will go is anybody’s guess, but it does differ from the earlier efforts of this kind in the specificity of the allegations, for it names what it calls the “Fake Testers” and identifies specifically the allegedly fraudulent filings they and their attorneys made. Many earlier efforts of this kind relied on the argument that anyone who files a lot of ADA lawsuits must be lying about their motives, a presumption courts have not been willing to adopt. This filing seems far more specific.

    Looking back at this and other cases I find it peculiar, in some respects, that none considera claim of barratry; that is, lawyers creating litigation rather than waiting for litigation to come to them. Barratry is an ancient offense, and what it means today depends on local criminal statutes, attorney ethics rules and in some cases statutes creating a civil penalty. Despite those variations, the general principle is the same; lawyers who accept lawsuits from individuals who already have a claim are doing nothing wrong, even if they advertise to find such individuals. Lawyers who instead pay individuals who have no claim to go out and find a claim are engaged in barratry. When a single law firm files dozens or hundreds of lawsuits on behalf of a client who cannot financially benefit from a victory in court there has to be some question about who is really in charge. The law firm will certainly benefit if the suit is won, but there is nothing in it for the plaintiff unless the case settles and some of the settlement money goes to the plaintiff.² If settlement money goes to the plaintiff, it is reasonable to ask why and, more important, who decides? Is it a case of the plaintiff hiring the lawyer, or the lawyer hiring the plaintiff? (5)

    I found only one mention of barratry in an ADA case. In Assn. for Disabled Americans, Inc. v. Integra Resort Mgt., Inc., 385 F. Supp. 2d 1272 (M.D. Fla. 2005) a clearly disgusted federal judge strongly suggested that the plaintiff’s lawyers might be guilty of barratry and that despite a seeming victory they should get no fees. However, because the fees were stipulated by the defendants the judge was compelled to award them. That kind of stipulation is the foundation of serial ADA litigation. Plaintiffs, or their lawyers (you choose) file suit intending to settle for just a little less than it costs to mount a real defense. Thus, it never makes economic sense for the defendants to fight because they can escape the costs of litigation with a relatively small payment to the plaintiff’s attorneys. It remains to be seen whether Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC changes how industrial ADA litigation is conducted, but my guess is that the business model – filing lots of lawsuits and settling for small amounts – will not go away and that at most Baek Family Partnership will make plaintiff’s attorneys more cautious about how they find clients and what kind of deal they make with them.

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    ¹ See my blog at Polar Vortex

    ² Under Title III of the ADA a plaintiff can obtain an injunction to stop future ADA violations, but is not entitled to damages or any other financial reward. The plaintiff’s lawyers, on the other hand, are entitled to legal fees.

    ³ See my 2013 blog, Curb cuts and accessible parking. We have seen the same kind of litigation involving spam faxes and improper telemarketing calls to cell phone numbers. As long as the settlement amounts are modest the defendants treat it as a cost of doing business and continue their old practices. The difference in ADA cases is that the defendants are often small businesses and even a modest settlement is enough to make the business unprofitable.

    (4) After you finish this blog just search for “outrage” in my earlier posts, including Standing for serial plaintiffs.

    (5) Almost all ADA lawsuits are filed by testers, and courts recognize that groups with an interest in disability rights may engage in “testing” by having plaintiffs go look for violations. Similarly, and individual can decide to be a “tester” and go looking for lawsuits. These practices raise questions about standing to sue, but they are not barratry. Barratry occurs when the lawyer is the driving force behind the lawsuit, and especially when the lawyer pays someone to go out an suffer an injury that the lawyer can sue on.


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  • Two service animal stories and the lessons they teach

    I am belatedly blogging about two recent decisions that have already been discussed elsewhere.¹ The legal issues presented are interesting,² but for businesses concerned with service animals the practical lessons are, I think, more important.

    In Mission Working Dogs a group of disabled individuals took their service dogs in training to a local mall where they would both practice good behavior around strangers and practice doing the things they were supposed to do as service dogs. The legal question was whether the ADA protects service animals that are being trained but have not yet been trained. The answer from the Court was yes, it does.

    Putting aside that legal holding it is worthwhile to look little more carefully at how the ADA applies to this situation. Nothing in the ADA simply says that public businesses must allow service dogs. Instead the ADA and its regulations say that if a business has a rule, policy, or procedure that would interfere with the equal use and enjoyment of the business by a disabled person then the business must make reasonable changes to that rule unless there is a direct threat to persons or property. Applied to a fully trained service dog the analysis goes like this:

    1. The mall has a rule against animals in the mall.
    2. A disabled individual with a service dog can’t go anywhere without their dog.
    3. The no animal rule makes it impossible for the disabled person to use and enjoy the mall.
    4. A trained dog on a leash isn’t likely to cause any real trouble.
    5. Therefore the mall has to waive the no animals rule to permit the disabled person to bring their dog into the mall.

    The key part of this analysis is item 4 – a trained dog on a leash isn’t likely to cause any real trouble. Item 4 makes it reasonable to ask the mall owner to waive the no animal rule and, at the same time, implies the dog won’t be a threat to anyone.

    Now let’s substitute a pack of trained service dogs with their owners traveling in a group around the mall. No matter how well behaved the dogs are, ten owners plus ten dogs in a group are far more likely to cause problems than one dog and its owner, if for no other reason than crowding in merchandise aisles. If the dogs are untrained and possibly not well-behaved the problem is worse. It isn’t hard to see why a mall owner might object to their property being used as a training ground under these circumstances.

    And that is exactly what happened. After some back and forth the dogs and owners were kicked out of the mall. They sued and the owner’s defense was that untrained dogs are not covered. The district judge disagreed. Could the owner have won the case if it had done something other than just allowing the dogs and owners to do whatever they wanted? I’ll answer that question after considering the second case, Reeves v. Immediate Medical Care.

    In Reeves a disabled patient with a service dog went to see a doctor in a local clinic. The service dog was trained to help his owner, who suffered from PTSD and anxiety, avoid “self harming” behaviors. When Reeves went in with his dog the the patient was told the doctor had severe allergies to dogs and could not be in the same room as the dog.  The allergies were in fact severe and could cause the doctor to have trouble breathing. The doctor then offered to see the patient without the dog or to have the patient see another doctor. The patient insisted on his right under the ADA to see the original doctor with his dog because allergies could not override the ADA. After that things pretty quickly escalated to the point the police were called and the patient and dog were expelled.

    In this case the clinic won because the doctor did everything right. There was a real threat to health because the doctor’s allergies were severe.  The doctor gave the patient alternatives that would have permitted the patient to get medical treatment without any delay or real inconvenience. And it was the patient, not the doctor, that escalated the situation by making the unreasonable demand to see the doctor despite the threat to the doctor’s health.

    What does this tell us about where the shopping mall went wrong? The mall did exactly what the patient in Reeves did. The mall relied on some bit of advice from the internet about service dogs in training not being covered by the ADA the same way the patient in Reeves relied on some supposed rule that allergies don’t trump the need for a service animal.

    The difference was that in Reeves the doctor and clinic correctly looked at the situation as problem to be solved rather than some law or legal principle to be enforced. Because the patient’s need could be met by another doctor or by leaving the dog in the lobby the clinic presented a solution that should have satisfied everyone. The patient lost because he wanted to stand on his rights under the law instead of trying to figure out how to get medical treatment.

    The mall, and any other business faced with a problem from a service animal, needs to take the same approach. For the mall it was unlikely that any one or even two dogs together would be disruptive; the problem was a pack of dogs. The obvious solution would have been to offer to let the group stay in the mall if they dispersed so there wasn’t any large crowd of dogs. If one of the owners was letting their dog off leash and the dog did not behave the mall could have insisted the dog be kept on leash.  The key is looking for solutions to the problem caused by the dogs instead of standing on a supposed legal principle.

    There are black and white legal issues, of course. A dog that is threatening (because it strains at its leash, barks or snaps at strangers) can be excluded as a threat.  The same with a dog that isn’t trained and defecates or urinates in the mall. But where the problem is just too many dogs in one place at one time there is a solution; asking the dogs and owners to disperse.

    This specific situation may not come up very often, but the principle applies to every problem created by a service animal in a public place. Business owners should ask themselves “what can I do to allow this disabled person to use and enjoy this business while mitigating the problem they are causing.” This may require some thought, but thinking is unavoidable if a business wants to avoid ADA problems. At the end of the day the side that tries hardest to find a solution to the problem is likely to end up on the right side of a lawsuit under the ADA because at the heart of the obligation to accommodate service animals is the requirement that it be “reasonable.” Being and making a record of reasonableness is the best way to handle service animal issues.

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    ¹ You can read about Mission Working Dogs v. Brookfield Props. Retail, Inc., 2025 U.S. Dist. LEXIS 41134) at William Goren’s blog: Surprise Surprise: Service Dogs in Training Are Covered by the ADA you can read about Reeves v. Immediate Medical Care, P.A., in Seyfarth Shaw’s blog at Can Businesses Exclude Service Animals Based on the Allergies of Others? 

    ² It is important to be careful when reading cases like these that are decided by a single federal district judge. No matter how interesting the legal principles are the decision of a district judge is not binding on any other judge. In fact, the judge who announces a legal principle can change their mind about it later. I think it is likely that a court of appeals would disagree with the district court in Mission Working Dogs because an untrained dog does not provide any benefit to the disabled handler and thus excluding it does not interfere with the handler’s use and enjoyment of the business. I suspect, however, there will be no appeal and we will never know for sure.


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  • Beer and website accessibility

    I had the pleasure to join Chris Hinds and Amber Hinds of equalizedigital.com on their Accessibility Craft podcast. It was fun and, I hope, there was some good information to share about the law. You can find it here.


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  • DOJ withdraws ADA Guidance – does it mean anything?

    Not long after Trump was elected in 2016 the Department of Justice withdrew a number of older guidances intended to help businesses deal with ADA issues. For the most part the withdrawn guidances were out of date and their withdrawal was unlikely to have any effect on businesses with ADA issues.¹ The new Trump administration has just withdrawn even more older ADA guidances, so it is worth asking what, if anything, this means for the day-to-day operation of most businesses.

    The first batch of guidances withdrawn by DOJ concerned Covid-19 related issues:

    • COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
    • COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
    • COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
    • COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
    • COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)

    These were issued during the first year of the Biden presidency and are arguably out of date now that the pandemic has more or less ended. They all shared what might be called a “liberal” view of the ADA that interpreted its requirements in an expansive way. Their withdrawal presumably indicates that DOJ will now take a more restricted view of what the ADA requires from Title III businesses.

    The next four guidances withdrawn reflect a subtle defiance of the purpose of the ADA. They are:

    • Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
    • Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
    • Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
    • Reaching out to Customers with Disabilities (2005)

    These four guidances encouraged businesses to view ADA compliance as a means to improve their market share by attracting customers with disabilities.  All were somewhat out-of-date, but it seems unlikely DOJ will issue updated versions. The current administration is vehemently against all forms of regulation; even the kind of mild encouragement to comply with the ADA represented by these guidances.

    DOJ’s reference in the press release to the tax incentives for ADA compliance² makes it clear that this administration believes its audience of Title III businesses only cares about direct monetary subsidies. It is convinced that businesses will not comply with the ADA because it is the right thing to do or even because it might, in the long run, expand the business’s customer base. It appears to believe instead that only direct financial incentives will cause businesses to comply with the ADA

    The last two withdrawn guidances are just out of date because they were issued before the 2010 ADA Standards for Accessible Design.

    • Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
    • Five Steps to Make New Lodging Facilities Comply with the ADA (1999)

    Sometimes you do just need to clean house.

    Withdrawing these guidances will have no substantive effect on businesses subject to Title III of the ADA. The original guidances were not binding on Title III businesses because they were just guidances. Removing them from DOJ’s website won’t make matters any better or any worse than they were before. The Presidential Order that lead to the removal of the guidances,  “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” was a piece of meaningless PR presumably intended to suggest the administration is taking meaningful action when in fact it isn’t really doing anything at all to help businesses or those with disabilities. As with many other such public acts this one is a lot of sound and fury signifying nothing, or at least nothing that would really help public accommodations deal with the most pressing ADA problem for Title III entities; industrial scale litigation by so called “testers.”  I don’t expect any meaningful action by DOJ except inaction; that is, choosing not to enforce the ADA at all.

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    ¹ See my earlier blogs, ADA Withdraws Guidances and Service Animal Guidance

    ² The DOJ Press Release can be found at DOJ Press Release


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