Blogathon – not so quick hits on the ADA and FHA

Fist with label Quick Hits The blog a day pace I thought I might hit hasn’t happened but I’m not giving up. Here is the first of several Quick Hits on recent ADA and FHA developments.

ADA standing – aiming to high leads to a crash and burn.

It appears the plaintiff in Rizzi v. Hilton Dom. Operating Co., Inc., 2019 WL 4744209 (E.D.N.Y. Sept. 30, 2019) decided to attack not one, but all of the websites operated by the defendant hotel company. Unfortunately, this meant the plaintiff could not identify any single website to which he plausibly intended to return. Litigation filed in the public interest rather than to alleviate an individual harm is the proper business of the Department of Justice, which has no similar limits on standing to sue.

Mootness done right

The defendant in Theodore v. 99 Restaurants, LLC 2019 WL 4861201 (D.N.H. Oct. 2, 2019) succeeded with a mootness claim because they did three important things. First, they hired an expert to tell them what to fix and whose report was based on the proper methodology; that is, he made actual measurements. Second, they waited until summary judgment to raise the defense, thus requiring the plaintiff to provide evidence instead of mere assertions. Finally, while they had good legal arguments for doing less (as discussed below), they didn’t rely on narrow interpretations of the law to avoid some aspect of compliance. Businesses that choose to defend on mootness should understand that it takes care and some expense.

There is one way to certainly moot a claim at the motion to dismiss stage of the litigation – go out of business. That’s what the defendant did in Johnson v. Tom, 2019 WL 4751930 (N.D. Cal. Sept. 30, 2019). In this case the lawsuit seems to have accelerated an existing plan to change the use of the property, but for marginal businesses this may be the only solution.

Dispersed dining and the 5% rule.

One of the plaintiff’s complaints in Theodore v. 99 Restaurants, LLC was that accessible seating was not provided in the “bar area.” The factual response was that 9 accessible seating spots were available with lines of sight to the television sets above the bar – which is really the only feature most bars offer that differs from ordinary dining. The Court nonetheless discussed the ADA’s dispersal requirement, finding that:

Nevertheless, the caselaw on this issue supports defendants’ view that the ADA and applicable regulations do not require the restaurant to have accessible seating in every area of the facility. Rather, accessible seating must be “dispersed throughout the space or facility.”

The difference between dispersed seating and seating in every area isn’t ordinarily important, but in large restaurants with multiple distinct areas making 5% of the seating accessible may not include enough tables to have one in every area the plaintiff’s imagination can define. This rule prevents arguments over how to slice and dice dining areas.

Declining supplemental jurisdiction in California.

The court in Whitaker v. Mac, 2019 WL 4849199 (C.D. Cal. Oct. 1, 2019) joined a growing number of California federal courts that will not consider Unruh Act claims along with an ADA claim. The argument is simple: California has decided to control abusive litigation under the Unruh Act with heightened pleading and other requirements that don’t apply in federal court. Plaintiffs seek to get the benefit of the Unruh Act (damages) without the detriments by adding an Unruh Act claim to their ADA claim. That, according to this court, permits it to decline supplemental jurisdiction in order to be a tool for avoiding state law. Other district courts have rejected this argument*, so in California the rule for a motion to dismiss remains “know your judge.”

Default as a strategy

The defendant in Smith v. Hartmann’s Moonshine Shoppe, LLC, 2019 WL 4888996 (D. Minn. Oct. 3, 2019) did reasonably well by choosing default, ending up with an order to remediate that was inevitable and a bill for the plaintiff’s fees and costs of less than $6,000. I don’t believe I’ve seen default as a strategy outside of California, so this may be a spreading trend. The danger, of course, is that the plaintiff will get more and more expensive injunctive relief than they may have been entitled to. In my view negotiating the terms of remediation and then settling is worth the money spent on defense counsel. Of course I am defense counsel, so my interests are clear.

In Arroyo v. J.S.T. LLC, 2019 WL 4877573 (E.D. Cal. Oct. 3, 2019) the defendant got an even better result, ending up with less than $4,000 in fees and costs to opposing counsel. The Court awarded state law damages of $4,000, but it is hard to imagine getting a better result by defending the case unless the permanent injunction granted the plaintiff turns out to be unduly burdensome.

Outside food and disabilities.

Like the case from Colonial Williamsburg I blogged about earlier this year** Castillo v. Hudson Theatre, LLC, 2019 WL 4805648 (S.D.N.Y. Sept. 30, 2019) deals with the obligation of public accommodations that serve food to allow outside food for those with disabilities. In this case, however, the plaintiff jumped the gun and filed suit without first requesting that the defendants accommodate her need to bring in outside food. Unlike cases involving physical barriers in which the ADA violation is the mere existence of the barrier cases involving policies and procedures require that an accommodation be requested and denied before there is an ADA violation.

Limits on expert testimony in ADA cases.

As the parties gear up for trial in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 4735403 (W.D. Wash. Sept. 27, 2019) the Court is taking a look at just what the plaintiff’s expert can and cannot say. Because the expert identified accessibility problems but not specific solutions in this decision the Court limits his testimony to problems and “general solutions” that apply elsewhere. It isn’t clear how the plaintiff will put on evidence that would let the Court enter an injunction specific enough to be enforced, and at least one possibility is an order requiring the parties to figure it out after judgment. That is often the approach in FHA cases where remediation is complex. In any case the trial is bound to be an interesting affair with broad implications for all stadiums and sports arenas.†

* See “Sixth Circuit Affirms . . . ” and “Quick Hits – Dog Days of Summer” for some of the contrary cases.

** See ADA policy modifications – does my fear makes your modification necessary?

† See Stadium Sightlines under the ADA – the winner is . . .