August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.

Unruh Act and the Internet – half a loaf is better than none.

You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.

And for a different view of website accessibility.

In Walters v. Fischer Skis U.S., LLC, 2022 WL 3226352, at *7 (N.D.N.Y. Aug. 10, 2022) a New York federal court agreed with many of its sister courts that the ADA does apply even to internet only businesses. It also rejected a standing challenge based on the plaintiff’s alleged history as a skier, which made it plausible that he would shop at a ski manufacturer’s website. ADA website litigation is far from over.

Hotel websites – good enough for DOJ is good enough.

A number of ADA serial plaintiffs have tried to advance the notion that a hotel website whose accessibility information meets DOJ regulations might still not be sufficient to satisfy the ADA. In Love v. Marriott Hotel Services, Inc., 40 F.4th 1043 (9th Cir. 2022) the Ninth Circuit agreed with what I think is the unanimous opinion that if a website meets DOJ requirements then it satisfies the ADA.(7) It didn’t take long for lower courts to agree and dismiss cases. See, Salinas v. IA Lodging San Diego, L.L.C., 2022 WL 3219409, at *5 (S.D. Cal. Aug. 8, 2022).

Treating everyone the same can be an invitation to litigation.

A pair of recent cases and a DOJ press release all remind businesses that they must accommodate(9) those with disabilities even if that means not following internal procedures and treating disabled patrons differently than others. The problem is illustrated Martinez v. County of Alameda, 2022 WL 3327924 (N.D. Cal. Aug. 11, 2022). Martinez was blind. When she tried to file an assumed name certificate with the county an employee told her that it contained errors and what they were. Because she could not fix the mistakes herself she asked the clerk and then a supervisor for help. They refused because the county had a strict policy that while clerks were required to point out mistakes and even let a patron correct them on the spot clerks could never provide any help at all to anyone beyond telling them what was wrong with their forms. The Court denied motions for summary judgment on both sides, finding the plaintiff had a viable claim for failure to accommodate discrimination and for a claim that the county’s policy had a disparate discriminatory impact on those with disabilities.  Treating everyone the same may not be good enough for the ADA.

The defendant did better in Williams v. Bank of Am., 2022 WL 3141863 (E.D. Cal. Aug. 5, 2022) perhaps because the plaintiff was pro se and didn’t present her case properly. Williams wanted Bank of America to stop escrowing her insurance and taxes for reasons related to her mental illness. The Court’s analysis was simple: Bank of America treated her exactly like everyone else and so there was no discrimination. What Williams wanted, of course, was not equality but an accommodation in the bank’s policies that she thought was necessary for her equal use of the bank’s services. Equality of treatment isn’t a defense in an  accommodation case; after all, the point is to get different treatment, not the same treatment. The bank probably would have won regardless because the accommodation requested related less to the plaintiff’s needs than to an obsession with written receipts, but like Alameda County banks and other businesses must remember that a policy that merely treats those with disabilities the same as those without might violate the ADA.

That brings us to a recent DOJ press release announcing a settlement of a claim that a state agency didn’t provide interpretation services to those with disabilities.² The settlement sets out DOJ’s three requirements for interpretation services; requirements that would apply to Title III public accommodations as well as Title II governmental entities:

• There must be an ADA coordinator to make sure the ADA is followed
• There must be contracts in place with interpretation services so the services can be readily supplied and
• Everyone involved needs training so they understand the obligation.

It is a good outline for any business that might have sustained interactions³ with hearing disabled individuals, but the key is not the degree of bureaucracy and rules, but the awareness of employees that they must accommodate disabled clients and customers in a way that is suitable for the occasion. It isn’t enough to treat everyone equally or to strictly follow the rules; sometimes the ADA requires different treatment and breaking the rules to accommodate the needs of those with disabilities.

What’s the right price for accessible seating?

Another DOJ settlement, this time with the City of Denver as owner of the Red Rocks Amphitheatre (as well as various promoters) reminds theaters, concert venues, stadiums and others to be careful about pricing accessible seating.(4) I was recently at Red Rocks and understand (I think) the origin of the problem. The amphitheatre is set in the side of a mountain and it wasn’t easy to make seating accessible except along the edge of the plaza at the top and in the first row at the bottom. These are, respectively, the worst and best seats in the house. I don’t know the specific prices in question, but I would bet the complaint was that accessible locations in row 1 were charged at the usual premium price, meaning non-ambulatory concert goers had no less expensive alternative than the worst seats possible. Federal regulations do not require creating accessible seats where it isn’t possible to do so, but they do require that disabled individuals have available the full range of ticket prices. In other words, if you have different ticket prices based on how far back the concert-goer sits there must be some accessible seats at each price point even if the only seats are in the most expensive location. Since you can’t charge more for the bad seats I assume Red Rocks will be required to charge those at the top the cheapest price like the rows immediately below them, but divide the accessible seating in row 1 into different groups and charge for them as if they were at various levels higher up. There is no way to make this fair to everyone all the time. Somebody in row 1 is going to be paying the same price as those up in row 50 while the person next to them is paying the premium price of a row 1 seat. The good news is that this won’t happen often because accessible seating is mostly unused.  There are about ten times as many accessible seating locations as are usually sold based on the numbers in DOJ’s press release, so a full range of prices should be available most of the time.

Another FHA settlement based on badly built apartments.

A recent settlement of an FHA case brought by local advocacy groups should remind apartment developers that the FHA’s requirements for accessibility can’t be ignored although apartment designers and contractors often do so.(5) The problems listed are all problems I have seen in similar FHA lawsuits:

• kitchens with insufficient room for wheelchair users
• bathrooms with insufficient room for wheelchair users
• sliding glass doors with thresholds too high for wheelchair users
• mailboxes too high for wheelchair users
• inaccessible public spaces.

Having seen these so many times I can almost guarantee many of the problems were caused by:

• galley kitchens specified with exactly the minimum width so that when the contractor misplaced the cabinets by an inch or two, or used wider countertops, the kitchen became too narrow.
• kitchens of any kind where the designer didn’t take into account the fact that standard refrigerators are deeper than standard countertops, so the refrigerator created a space that was too narrow.
• the designer specified bathrooms at the minimum to meet FHA requirements without considering that an in-swinging door could not be closed by a wheelchair users.
• the designer specified bathrooms at the minimum to meet FHA requirements so that mis-located walls made it too small or mis-located plumbing stacks put the toilet to close to or too far from the wall.
• the contractor used standard sliding glass doors with a typical 1″ or higher lip, which is twice as high as the FHA standards allow.
• no matter what the designer specified, the electrician installed a/c and heating controls at a height that is convenient to install, which is a foot higher than the maximum permitted by FHA standards
• sidewalks leading to common use facilities were too steep
• gates to pools had the opening mechanism too high (because local codes require child-proof mechanisms and making them high is the cheapest way to do this)
• the approaches to gates and doors were not large enough to meet FHA standards
• mailboxes were standard stock units that have many mail slots higher than the maximum allowed by the FHA(6)

Developers of multi-family housing (remember the FHA covers condominiums as well as apartments) must take into account how easy it is for designers to make mistakes and that their contractors believe in industry tolerances that may not apply in an FHA or ADA context. The name of the game in multi-family is often to create the maximum number of units in the minimum amount of space, and that leads inevitably to construction that doesn’t meet FHA requirements.

How equal is equal enough?

The discussion of standing in Barnes v. AKM Foods, Inc.,  2022 WL 3229832 (E.D. Cal. Aug. 10, 2022) illustrates but doesn’t resolve a common problem in ADA litigation. If equality is impossible, how close do you have to get? The plaintiff alleged that the path of travel from accessible parking to the restaurant in question was too long and had excessive slopes that made it difficult for her although she did make it in the door (where she was turned away because of her dog). The defendant said that since the plaintiff made it inside she suffered no injury from the length and steepness of the route, but the court was willing to say there was an injury alleged and declined to consider evidence related to the details. The ADA accessibility standards are supposed to eliminate the question of how equal is equal enough. If the physical route meets those standards it is good enough; if not it isn’t. The plaintiff’s subjective experience is (in theory) irrelevant. The problem in this and similar cases is that the plaintiff pleaded a subjective case and the court refused to consider objective evidence at the motion to dismiss stage. Plaintiffs should be required to specify that the supposed architectural barriers violated the 2010 ADA Standards and, to give defendants a chance to get out without unnecessary legal fees, courts should be willing to accept evidence of compliance with those standards at the earliest stages of the lawsuit.

Surrender as a strategy

A typical ADA serial filer case settles because the cost of defense exceeds the cost of settlement and, of course, the harder you fight the more attorneys’ fees must be paid if the plaintiff wins. Half of this problem can in theory be solved by an offer of judgment. Under federal procedural rules this offer cuts off the plaintiff’s ability to run up their fees provided that they win no more than they were offered. The problem is the plaintiff can turn down the offer and still force the defendant to spend money defending the case. In
Cuesta v. DTC Lodging LLC, 2022 WL 3212924 (D. Colo. Aug. 9, 2022) the defendant avoided this problem by a complete surrender. It made an offer of judgment, admitted to ADA violations, and then moved for a judgment against itself to cut off the plaintiff’s ability to prolong the case. And it worked. The district court, over the plaintiff’s objections, entered a judgment against the defendant. The plaintiff’s lawyers will get fees, but only what they can justify for doing almost nothing. There is a bonus as well. The terms of the court’s permanent injunction are probably too broad to be enforceable, so the plaintiff may have no ability to force the defendants to fix anything at all.

Why not make an offer of judgment in every case? It may not be the cheapest way out. I routinely settle cases where the total cost to my client is less than what it would cost to go through the procedural machinations in Cuestra.  There is also a risk that remediation will involve unexpectedly high expenses. This is always a problem in website cases where remediation costs are high and difficult to estimate.  It can also be a problem in physical accessibility cases unless the defendant has paid for an expert analysis of all the items needing remediation. If the plaintiff’s attorney insists that the court’s injunction be specific enough to enforce, the defendant has the possibility of crippling remediation costs. I see this strategy as a useful means to push the plaintiff into a cheaper settlement, but if that doesn’t work Cuestra shows how the defense can win a case by agreeing to lose it.

And fighting for the sake of the fight.

In Brooks v. Tapestry, Inc.,  2022 WL 3229779 (E.D. Cal. Aug. 10, 2022) the defendant did what I’ve done hundreds of times in substantial business lawsuits; that is, launched their defense with a barrage of affirmative defenses (22 to be exact) that left open the possibility of defending the case on every theory imaginable. The plaintiff, a well known serial filer, responded with an all out attack on the propriety of pleading these defenses, arguing in many cases that they were not technically affirmative defenses because the plaintiff had the burden of proof. The defense won this round, with the court allowing it to plead all but one defense that was merely a duplicate of another. What the decision doesn’t answer is why so much time and money was spent on these issues. It is almost certain the plaintiff would have settled for less than the attorneys’ fees spent on this one very preliminary procedural skirmish, and while that might have included an agreement to make the website in question accessible the defendants claimed it already was. As for the plaintiff’s response, attacking the pleading of an affirmative defense is almost certainly a waste of time. After all, what matters in the end is the defendant’s ability to prove their affirmative defenses, not their ability to put it in a pleading.

There are justifications for a scorched earth litigation strategy. Maybe the defendant wanted to show to other prospective plaintiffs that they should find other, easier prey to attack. Maybe the plaintiff wanted to prove their willingness to fight so other defendants wouldn’t try the same thing. Maybe there were other motives on both sides that we’ll never know. What I can say for certain is this strategy probably doesn’t make sense in any case where the defendant just wants to get out as cheaply as possible.

Holding plaintiffs to the same standard as defendants.

ADA lawsuits often rest on what are at best technical violations of the ADA standards – a ramp that is 1/2% too steep or a sign that is an inch too low. In Gastelum v. C. Valley Hosp. LLC,  2022 WL 3211747 (E.D. Cal. Aug. 9, 2022) the Court held the plaintiff  to a similarly rigid standard when he sought a default judgment against the defendant. After several tries the plaintiff properly served one defendant, but the motion for default judgment had been filed based on an earlier failed attempt and so the magistrate judge refused to recommend it be granted. This isn’t something any defendant should count on happening and default can be very risky, but it is nice to see the old legal principal “what’s sauce for the goose is sauce for the gander” in action.

Tenant v. tenant – what’s a landlord to do?

I found the decision in Hume v. Guardian Mgt. LLC, 2022 WL 3226992 (D. Or. Aug. 10, 2022) particularly interesting because a client asked me about a similar issue just yesterday. In Hume a disabled tenant made an escalating series of accommodation requests concerning reserved parking, the last of which was that her parking space have an access aisle next to it. The landlord drew the line at the last request because it would have meant kicking some other tenant out of their reserved spot. The Court agreed the last request for accommodation was not reasonable because of the effect on another tenant. The FHA should never require a landlord to grant an accommodation that has a direct negative impact on another tenant; after all, the cost of providing fair housing should not fall on innocent bystanders.(8)

When serial filers can’t win against an opponent who doesn’t show up.

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¹ “Apex” is a popular name for law firms, including at least one other that handles disability law cases. I’m referring to Ryan Ferrell’s law firm.

² https://www.justice.gov/usao-edva/pr/goochland-powhatan-community-services-agrees-settle-americans-disabilities-act

³ businesses with only short term interactions of less consequence, like restaurants and retailers, can use more informal means of communication like notes.

(4) https://www.justice.gov/usao-co/pr/us-attorney-s-office-reaches-settlement-city-denver-and-concert-promoters-relating.

(5) I was not able to get the settlement itself, but an article about it can be found at https://www.syracuse.com/crime/2022/08/company-with-cny-apartment-complexes-agrees-to-pay-7m-to-settle-disability-lawsuit.html

(6) I’m not picking on this vendor, but the picture on their home page illustrates the problem. The maximum height for an accessible mailbox is 48″ which is probably shoulder height on the smiling gentleman at https://www.mailboxes.com/apartment-building-mailboxes/?gclid=EAIaIQobChMIlPCz9bnH-QIVH8LCBB0jzwFCEAAYASAAEgJg6PD_BwE

(7) If you search my blogs for “Reservations Rule” you’ll find most if not all the previous cases discussed at least briefly.

(8) See my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA for a similar case. There is a difference between a direct harm to another tenant like taking away a parking space and the indirect harm every other tenant suffers when an animal is allowed as an accommodation in a “no pets” apartment complex. For landlords the difficulty is knowing what constitutes a direct harm in cases of conflict between tenants with opposing needs.

(9) There is a persistent vocabulary problem in discussing both the ADA and the FHA in the same blog. The ADA requires that covered entities “modify” their policies and procedures when it is necessary for the equal use of or access to their goods and services. The FHA requires that housing providers “accommodate” those with disabilities in the same way, and uses “modify” to refer strictly to physical changes in a dwelling. I use “acccommodate” in the FHA sense when discussing ADA matters because it seems to be readily understood, while using the word “modify” in ADA cases can lead to confusion.