Just a brief note about another alleged abuse of the ADA. According to a press release from the Department of Justice an attorney living in Florida filed hundreds of lawsuits naming as plaintiff individuals whose identities he stole. You can read the press release at this link. If you take the nearly 1000 cases filed by Mr. Finkelstein and add them to the lawsuits filed by Oscar Rosales, Peter Strojnik Sr., and Scott Dinan it starts to become clear that a significant percentage of ADA Title III lawsuits are filed solely to enrich a lawyer and often without any substantive merit. While some commentators say the ADA needs to be scrapped, the real solution is simply to provide a procedure for early dismissal with minimum expenditure of defense attorneys’ fees. Some courts have instituted mandatory mediation programs with this goal, but in many cases the cost of mediation alone makes defense impractical. The real solution is simply a heightened standard for standing that requires plaintiffs to have suffered a real injury and a heightened standard for pleading that requires plaintiffs to identify specifically the ADA violations they claim to have encountered. With that and a program of referring every Title III complaint to a magistrate judge for examination (similar to the way most courts handle pro se complaints) abusive lawsuits could be substantially reduced. The goal is not to make it impossible for plaintiffs to file ADA lawsuits, but rather to limit such lawsuits to those who have suffered a real injury.
Department of Justice
By Richard Hunt in Accessibility Litigation Trends, ADA Attorney's Fees, ADA Litigation Procedure, ADA regulations, ADA rulemaking, Movies Tags: Closed Captioning, Department of Justice, movie theaters, regulations
Hard on the heels of the news about a newly filed lawsuit demanding closed captioning and audio descriptions* the Department of Justice has announced its rules concerning accessibility for movie theaters**, which will become effective sometime in the next few months. This is clearly good news for movie theaters who want certainty about their legal obligations, but will it put an end to the pending lawsuit, or prevent future claims? The disturbing answer is likely “no.” More
On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Restaurants, Retail Tags: ada litigation, ada violation, allergies, Department of Justice, gluten free, P.F. Chang's, private lawsuits, restaurants
Many restaurants have responded to consumer demand by offering various alternative menu items to satisfy special dietary needs or desires. One of the most popular is gluten free alternatives for those who need or want a gluten free diet. A recent case from California makes it clear that these options are not required by the ADA, and that many dietary restrictions are not disabilities covered by the ADA.
Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 4694049, at *9 (N.D. Cal. Aug. 6, 2015) concerned a claim by a plaintiff with celiac disease who was unhappy with the fact that P.F. Chang’s charges $1.00 more for various gluten free alternative menu items. She claimed, in a nutshell, that celiac disease is a disability and that the additional $1.00 charge was discriminatory under the ADA. The Court rejected both ideas.
Whether an allergy or food intolerance constitutes a disability under the ADA depends on the particular allergy and its effect, but in general even serious allergies do not constitute disabilities if the consequences can be avoided by observing a restricted diet. The Court did not find any cases dealing with celiac disease, but compared it to nut allergies, which require nothing more than avoidance of nuts. (Citing Slade v. Hershey Co., 2011 WL 3159164 (M.D.Pa. Jul. 26, 2011)).
The Court did recognize a DOJ settlement with Lesley University that is predicated on the idea that celiac disease and other food allergies are disabilities; however, it referred to it for a completely different part of the analysis. Courts addressing allergy issues generally find that even allergies causing severe reactions are not disabilities because they do not substantially limit a major life activity. For example, a latex allergy may make it difficult for an individual to study nursing, but it does not impair the ability of the person to learn generally (Webb-Eaton v. Wayne Cnty. Cmty. Coll. Dist., 2013 WL 3835208, at *4 (E.D. Mich. July 24, 2013). Restaurants can reasonably conclude that food allergies are not disabilities under the ADA in most circumstances, despite DOJ’s contrary belief.
The Court in Phillips v. P.F. Chang’s also rejected the idea that a $1.00 additional charge was discriminatory. The discrimination inquiry came in two parts. First, was the restaurant required to provide meals that those with allergies could enjoy and second, was the $1.00 charge an illegal surcharge imposed on the disabled.
With respect to the first question the Court did address the DOJ’s settlement with Lesley University, and in particular an Information Sheet concerning the settlement issued by DOJ. DOJ recognized that the students at Lesley University, unlike the patrons of a restaurant, had no alternative to the University’s mandatory meal plan. DOJ agrees that ordinary restaurants are not required to provide any special foods to meet particular dietary needs, which is consistent with the more general principle that a public accommodation does not have to add to the goods and services it offers in order to accommodate the disabled. (See, 28 CFR Part 36, Appendix B at p. 224).
As for the surcharge, a higher price for goods and services is improper only if the price applies only to the disabled. For example, selling plus-sized clothing at a higher price is not discrimination against the obese (who may in some cases be disabled) because the same price applies no matter who buys the clothes. (See,Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 537 (W.D. Pa. 2013)). P.F. Chang’s one dollar surcharge applied to all customers wanting a gluten free dish, and so it was not discriminatory.
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Building Codes, FHA, Multi-Family Tags: Consent Decree, Construction, Department of Justice, DOJ, FHA
The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can. More