Strip Search at the Strip Center

August 31, 2012 By richardhunt in ADA FHA General

Well, that may be a little overwrought. We’re talking here about a guy with a clipboard and a tape measure – no rubber gloves are involved. Still, it’s hard not to feel violated when a federal judge orders you to allow someone to inspect your property. This is especially true when you know that person’s sole reason to be there is to find violations of the ADA accessibility standards for a plaintiff who never knew they existed. A feeling of violation won’t stop the inspection however. The achievable goal is to make the inspection irrelevant, or at least limit it.

The problem of inspection for ADA and FHA cases almost always comes up in the same way. The plaintiff alleges that he or she encountered one or more barriers to access. If the case survives a motion to dismiss the plaintiff then asks for an inspection of the property to find additional violations that are unknown, but will, if found, be added to the lawsuit. The owner argues that if the plaintiff doesn’t know about a violation then the violation cannot have caused harm and shouldn’t be part of the lawsuit. Putting aside the legal principles involved, the heart of the argument on both sides seems to be an attitude that ADA litigation is a game in which property owners try to avoid the expense of compliance while disabled plaintiffs try to act as super advocates for all those with disabilities instead of seeking a remedy for the discrimination they have personally experienced. Like most legal games this one primarily benefits the lawyers. More

A Strip Center Case Study

August 25, 2012 By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General

It has been a relatively slow week for ADA accessibility filings in North Texas, with only one new lawsuit against a strip center in Plano. However, that new lawsuit provides a nice case study of the kinds of legal issues these cases raise.

The problems of standing mentioned in my last post are present in abundance. The plaintiff alleges that she went to the shopping center to visit a restaurant and “ran into” architectural barriers at the center. It is clear from the complaint itself that she didn’t run into all the barriers to access that she lists. For example, she claims that there is no accessible route to the center from the nearest public sidewalk and that there is not adequate accessible parking. If she took a car, then the public sidewalk wasn’t a problem for her. If she took a bus then the parking didn’t matter. She might have been injured by one kind of discrimination or the other, but not both. There are also general allegations of excessive slopes and a lack of accessible routes to “many of the businesses.” Since the plaintiff states that she visited the center to go to a specific restaurant the lack of accessible routes to other businesses could not have caused her any injury. More

Standing on Air

August 21, 2012 By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, private lawsuits, private litigants

Every few months another district court confronts the inherent tension between private enforcement of laws like the ADA and the standing requirements for individual litigants in the federal courts. The Constitution regards private lawsuits as a means to vindicate private rights, and the constitutional requirements for private litigants make an uneasy fit with the goal of promoting public policies concerning accessibility for those with disabilities. The Constitution requires that a private litigant have “ standing,” which means that the party ust have suffered an injury caused by the defendant that the courts can somehow fix. In ADA litigation neither the injury nor the court’s ability to fix it may be obvious. The result is a mishmash of inconsistent approaches to standing that leaves little certainty for litigants. More

Can the law require more than the law requires?

August 13, 2012 By richardhunt in ADA FHA General

The ADA and FHA are peculiar anti-discrimination laws. We usually think of discrimination as treating people differently. The ADA and FHA, on the other hand, start out by defining a class of people – those with disabilities – who are different in their physical or mental abilities. The statutes then require that this different class of people be treated differently when different treatment is required to give the same opportunity or access. The ADA and FHA require affirmative action in favor of the disabled. The required affirmative action is sketched out in the statutes and then described in painstaking detail in the regulations promulgated under them – the Accessibility Standards and their predecessor Accessibility Guidelines. More

There’s a new sheriff in town – you

August 6, 2012 By richardhunt in Accessibility Litigation Trends, ADA FHA General No Comments

In late July two lawsuits were filed in the Northern District of Texas that make a radical new claim under the ADA. The plaintiff claims that store owners violated the ADA by failing to keep those without disabilities from parking in accessible parking spaces. Just how the property owner is supposed to keep accessible parking free from poaching isn’t entirely clear. There is a suggestion that the owner should call the police, but the same lawyers also sued the City of Burleson claiming that was violating the ADA by failing to enforce accessible parking laws. If the owner calls the police and they don’t come has he done enough?

Also left unanswered is question of how much personal risk the owner or its employees are supposed to undertake in the cause of disability rights. Short of a polite request to the authorities there isn’t much an owner More