If foolishness were limited to one day a year this blog would be well overdue, but a glance at the news – legal, political or other, shows that every day in April can be April fools day, so I make no apologies for the delay in getting this out.
The difference between accommodation and modification under the ADA and FHA
Any discussion of S.W. Fair Hous. Council v. WG Chandler Villas SH LLC, 2021 WL 1087200 (D. Ariz. Mar. 22, 2021) must begin with a vocabulary note. The thing called “modification” under the ADA is called “accommodation” under the FHA and the thing called “modification” under the FHA doesn’t really exist under Title III of the ADA. The vocabulary matters because under the FHA a “modification” is a change to a physical feature that the tenant must pay for while an “accommodation” is a change in policy that the landlord must pay for on the theory that the costs will usually be nominal. In WG Chandler Villas the plaintiff, a fair housing organization that was testing local apartment communities for their responsiveness to the needs of the deaf, asserted that installation of a flashing doorbell was an accommodation rather than a modification, thus making the cost the landlord’s responsibility. The Court held that how to characterize such a request depended on what kinds of services the landlord already provided:
The Court finds that a flashing doorbell is a reasonable accommodation under the ADA—not merely a modification—in the context of Defendant’s housing facility, because one of the services that Defendant provides residents is safety checks.
Those safety checks included ringing the doorbell to see if the resident responded. Since deaf residents would not benefit from that safety check if they didn’t know the doorbell was being rung the addition of the flashing doorbell was better characterized as a change in policy about safety checks rather than a physical modification in the form of a new doorbell. This reasoning could apply to an array of services that any apartment complex might provide. If reserved parking is a service, for example, then a reserved accessible parking space would be an accommodation despite the physical changes (including using up an entire extra parking space) and their cost.²
More on hotel websites and the litigation beast.
The beast must be fed. The California Legislature and Ninth Circuit created a litigation monster in California; the former by creating a $4,000 penalty for even innocent violations of the Unruh Act and the latter by defying the Constitution and permitting lawsuits by individuals who suffered no injury from their encounter with a supposed ADA violation. There are, however, only so many ADA targets and plaintiffs like Samuel Love and his attorneys are making increasingly implausible claims in what I see as a desperate effort to keep the settlement money rolling in. That, at least, is my interpretation of cases like Love v Marriot Ownership Resorts, Inc., 2021 WL 1176674, at *7 (N.D. Cal. Mar. 29, 2021) and Love v. KSSF Enterprises Ltd., 2021 WL 1056604 (N.D. Cal. Mar. 18, 2021)¹ in which Love claims that hotel websites fail to meet ADA requirements for describing accessible features because they lack sufficient detail for him to determine whether the hotel is telling the truth about its accessibility. In these, as in other similar cases, his claims were dismissed because on their face they had no merit. Will this deter future suits? Probably not. For every defendant willing to spend thousands, or tens of thousands of dollars defending meritless lawsuits there are a dozen who will just pay off the plaintiff’s attorneys to be rid of the case. Until the California legislature and Congress decide to put an end to exploitative ADA litigation the rampage will continue.
Brooke v. Superb Hospitality, LLC, 2021 WL 1173208 (E.D. Cal. Mar. 29, 2021) is another case that seems to have been filed only as a way to make money for the plaintiff’s lawyers. Brooke claimed the hotel violated the ADA because its only suite was not accessible. Buried in a long but informative discussion of mootness and ADA liability for information on 3rd party websites is the observation that under the applicable regulations a hotel is not required to make one of every type of room accessible as long as there are comparable rooms available that are accessible, which was the case with this hotel. In other words, the hotel never violated the ADA. Why then did Brooke file suit? The beast must be fed.
Speaking of hotel websites. . .
The plaintiff in Katz v. Wanderstay Hotels, LLC, 2021 WL 1093169, at *4 (E.D.N.Y. Mar. 4, 2021), report and recommendation adopted, 2021 WL 1091907 (E.D.N.Y. Mar. 22, 2021) probably thought he had it made when the defendant failed to file an answer, making a default judgment possible. Unfortunately the court found he had failed to make all the allegations needed under New York’s long arm jurisdiction statute (4), so even if everything in the Complaint was presumed true (which is what happens in a default case) there wasn’t enough for the plaintiff to win. The most interesting sentence in the opinion, and one that defendants will likely want to quote, is this:
Plaintiff fails to allege that defendant engaged in a “transaction” with him in the way that the term is typically understood, but rather, plaintiff states that he visited Wanderstay’s website and witnessed the ADA violation. Courts in this Circuit have held that a New York resident viewing the website of an out-of-state defendant, absent more, is not enough to establish personal jurisdiction over the defendant.
For businesses with no substantial business in New York it appears that a typical serial litigant claim won’t be sufficient to drag the defendant out of their home in another state.
Policies and procedures under the ADA.
The long discussion of class action certification in Allen et al v Ollie’s Bargain Outlet, Inc. 2021 WL 1152981, at *1 (W.D. Pa. Mar. 26, 2021) includes one sentence that says all you need to know: “Ollie’s does not train or educate its employees on ADA compliance.” The defense arguments were thorough and well researched, and it is not clear that the plaintiffs can prevail at trial, but the defendant’s real problem was that it could not say its employees knew they were supposed to keep the aisles clear so goods were accessible by wheelchair. It followed, of course, that the defendants has probably failed to keep the aisles clear in many stores over many years. If your business doesn’t want to be sued it past time to have an ADA training policy in place that covers not just employment issues, but also Title III accessibility issues.(6)
Merely filing a lot of lawsuits does not make one a vexatious litigant.
The decision in Bouyer v Rocky’s Racquet World, LP, 2021 WL 1146384 (C.D. Cal. Mar. 25, 2021) includes discussions of supplemental jurisdiction of Unruh Act claims (they were dismissed) and the specificity required in declarations intended to prove mootness (a good deal). It also includes an important observation for those who are outraged at the litigation beast described above. The Court denied a motion to declare the plaintiff a vexatious litigant because, for that designation to apply, “the plaintiff’s claims must not only be numerous, but also be patently without merit.” Id. at p.8.³ ADA serial litigation is often outrageous, and frequently involves what are clearly lies about intent to return and motivation, but if there is a real ADA violation the character of the plaintiff and the lawyers is never going to overcome the fact that the defendant didn’t follow the law.
Feasibility and cost
Bronx Independent Living Services et al v. Metropolitan Transportation Authority et al, 2021 WL 1177740 (S.D.N.Y. Mar. 29, 2021) is a long opinion about two complex subjects, associational standing and technical infeasibility. The opinion doesn’t reach any conclusion except that competing expert testimony creates a fact issue requiring a trial, but the explication of the law is a worthwhile resource.
ADA Tester Standing
Laufer v. Q Ill Developement, LLC, 2021 WL 1202329 (C.D. Ill. Mar. 30, 2021) includes an unusually clear and concise explanation of tester standing that correctly applies the Supreme Court’s holding in Havens Realty Corp. Most courts read Havens to simply say that testers have standing, but in Q Ill Dev. the Court correctly notes that testers have standing only when they suffer precisely the injury the statute was intended to prevent. Because the ADA regulations concerning hotel websites are intended to make sure disabled individuals have information about accessibility a disabled person who cannot find that information has suffered precisely the injury the statute was intended to prevent. Without identifying the specific injury the statute was intended to prevent and determining whether a tester suffered that injury any discussion of tester standing is incomplete.
Mahoney v. Waldameer Park, Inc., 2021 WL 1193240 (E.D. Pa. Mar. 30, 2021) reaches, in a roundabout way, the same conclusion as Q Ill Dev. Mahoney is a serial filer who originally claimed an ADA violation based on the defendant’s inaccessible website then pivoted to a claim based on the defendant’s place of business when he realized that the Third Circuit does not recognize websites as public accommodations. The Court considered his standing under two tests – the four-part proximity test used by many courts outside the Ninth Circuit and the deterrent effect test sometimes used by the Ninth Circuit. Mahoney “flunked,” as the Court put it, the proximity test because he had never visited the business and lived too far away to plausibly claim he would ever do so. He failed the deterrent test as well because you cannot be deterred from visiting a place you never intended to visit in the first place. As a final step the Court considered the possibility of “tester” standing. Without defining what tester standing might require, the Court rejected its application to Mahoney because “Mahoney is no tester.” Mahoney only tried to test the website, and without testing the physical place of business his testing of the website did not give rise to an ADA claim. This makes sense when looking at “precisely the injury” the ADA was intended to prevent. In the Third Circuit the ADA covers websites only because they are connected to a physical place of business, so the injury must necessarily relate to the the physical business, not the website.
More about supplemental jurisdiction
Whitaker v. Mouallem, 2021 WL 1152899 (C.D. Cal. Mar. 17, 2021) is another in the string of cases I have discussed in which the Court declines to exercise supplemental jurisdiction over Unruh Act claims because the federal filing was used to circumvent the state law requirements intended to deter serial litigation. California counsel will find it useful because it has a very complete discussion of the state legislation, its purposes, and the reasons plaintiffs’ law firms try to circumvent it. Boyer v. Pizza Hut No. 026192, 2021 WL 1153062 (C.D. Cal. Mar. 8, 2021) reaches the same conclusion with quite a bit less discussion.
Dotting your i’s and crossing your t’s
The defendant in Sandhu Brothers Liquor, Inc. 2021 WL 1145994 (N.D. Cal. Mar. 25, 2021) almost got it right when asserting that the plaintiff’s claim was moot because a single parking space had been remediated. “Almost” because the declarations concerning the work did not specify the dimensions of the parking place, making it impossible to tell whether the remediation actually met ADA standards. It takes time to do things right, no matter how small the case.
I originally noted the case of Green v. Mercy Hous., Inc., 2021 WL 1080679 (9th Cir. Mar. 19, 2021) when the plaintiff survived a motion to dismiss.(7) The defendant had better luck at the summary judgment stage, obtaining a dismissal of the claims against it. Unfortunately the record the district court found sufficient did not satisfy the Ninth Circuit, which overturned the summary judgment and remanded the case with the observation that with respect to the reasonableness of the accommodation sought by Green “the record is somewhat vague.” There are no shortcuts in this kind of litigation.
Default as a strategy
Winegard, Pl., v. Crain Commun., Inc., Def. 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021) is an unusual default case because it is from the Second Circuit rather than California and because it concerns a website instead of a strip shopping center or family owned restaurant. For small businesses accused of not being physically accessible default poses little risk because the cost of remediation can be defined and is often less than the cost of attorneys’ fees. Website remediation is another matter because the cost to remediate a modest website can be far in excess of the revenue it generates. This is true even when, as in this case, the only claimed ADA violation concerns closed captions. However, it seems unlikely that the Court’s order – “Defendant is therefore ordered to bring its website into compliance with the ADA and its implementing regulations” – can be enforced since an order to obey the law is not sufficiently specific to be enforceable. See, Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir.1996). Because there are no regulations defining website accessibility the injunction in this case may pose no threat at all to the defendant.
Does the ADA require that cities regulate jerky behavior?
Electric scooters for rent are an energy saving convenience that help reduce traffic and pollution or, perhaps, are a curse and danger to all pedestrians. Montoya v. City of San Diego, 2021 WL 1056594 (S.D. Cal. Mar. 19, 2021) doesn’t decide which of these is true, but does explain in considerable detail why a preliminary injunction requiring the City of San Diego to ban all such scooters was not appropriate. For me the key observations are that reckless driving and scooters blocking the sidewalk affect those with disabilities and those without disabilities alike and that skateboards and bicycles pose the same kinds of problems. (5)
Strojnik – again
In the next few days I’ll be taking a close look at the decision in nlawful discriminatory Equal Rights Ctr. v. Uber Techs., Inc., 2021 WL 981011 (D.D.C. Mar. 15, 2021), a case that raises two important issues. Do broad allegations of deterrence satisfy the pleading requirements for an ADA claim and can a business that serves the public structure itself so that it avoids any ADA obligation. Stay tuned.
¹ See also, Quick Hits – Vernal Equinox edition
² This case, like the similar case covered in Quick Hits – Vernal Equinox edition and other earlier blogs also dealt with the obligation to provide ASL interpretation to prospective tenants. The message here is the same as in those earlier cases – don’t refuse a requested accommodation until you’ve discussed it and tried to resolve it.
³ This was the subject of one of my blogs in 2013, Standing for serial plaintiffs – it’s a legal issue, not a moral problem. The situation hasn’t changed. If your defense is mootness because the ADA violation was fixed after the suit was filed it doesn’t make much sense to say the suit had no merit at the time it was filed.
(4) Long arm jurisdiction is the legal doctrine that allows someone who does not live in a state to be sued there. In very broad terms (there are books about this) a defendant can’t be sued away from their home state unless it is fair to sue them elsewhere. Fairness usually comes from either having done business with the particular plaintiff or having done a good deal of business in the state with others. If ADA serial filers are forced to prove their target defendant actually did business with others in the state they will be forced to do more work before filing suit.
(5) This isn’t a brand new issue. See, ADA and FHA Quick Hits – Day that will live in infamy edition, Quick Hits – Making a list and checking it twice edition and Rental bikes and the ADA – Hunt quoted in Dallas News Article
(6) See my 2018 blog, ADA Compliance Policies and Procedures – you need them, and now.