This inspiring picture of a para-athlete should remind us all of what those with “disabilities” as defined by the law can achieve. It should also make the courts consider whether they have mis-construed the law concerning injury under the ADA. I’ve written many times before about the troubling tendency of some courts to ignore the actual injury requirement for lawsuits under the ADA. (See my posts on December 23, 2013, October 3, 2013, May, 2013 and especially Nov. 6, 2013). A recent decision from North Carolina shows how one court, at least, has adopted the common sense view that a plaintiff who has not been injured cannot maintain an action under the ADA. Blue v. Boddie-Noell Enterprises, Inc., 2015 WL 509831 (E.D.N.C. Feb. 6, 2015). More
FHA ADA litigation “statute of limitations” strategy DOJ “attorney general” enforcement
Law, Regulation and Confusion in the ADA
By richardhunt in ADA, ADA FHA General, ADA regulations, ADA rulemaking, DOJ Tags: Department of Justice, DOJ, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private litigants
This week two ADA writers I follow, Marc Dubin and William Goren, looked at the problem of telling just what the ADA requires. Both concluded that in some respect the only way to know was to look at the latest private settlements between the Department of Justice and various businesses it investigates. You can know the statute, you can know the regulations, you can read the various guidances, but if you don’t keep track of what the DOJ is doing when it settles its private investigations you really don’t know what to do in many cases. The National Association of the Deaf, an advocacy group, recently wrote on the requirement of closed captioning in audio and audiovisual presentations (nad.org). With a few exceptions governed by statutes other than the ADA the best the N.A.D. could say was that closed captioning “may” be required or that the situation is uncertain.
This uncertainty is great for lawyers and consultants. Like most folks in the ADA and FHA consulting business Marc, William and I follow the DOJ and HUD press releases that announce their settlements, and receive updates on their regulatory initiatives. For businesses, on the other hand, it stinks. Not only is a business required to constantly pay consultants to help it comply with the ADA, it will frequently be told by the consultant that the only answer comes from reading the tea leaves and guessing what the DOJ’s position will be when and if it finally publishes a definitive regulation. Even that guess comes with a warning: the DOJ’s position in a private settlement is not binding on private litigants or the courts, so doing what DOJ appears to want won’t help a business that is sued by a disabled individual.
This uncertainty comes in part because of a regulatory process that seems hopelessly bogged down. Web accessibility regulations have been in the making for years, but the issue is still being studied. The current 2010 Standards for accessibility were originally published in the 1990’s and parts were not in effect until 2013. Haste is never good when faced with complex problems of accessibility, but when the wheels of justice grind too slowly one has to ask whether there is a systemic problem.
More important, every time the Department of Justice delays the promulgation or implementation of a regulation it creates uncertainty and expense for business. Remember, the requirements of the ADA statute apply regardless of the existence of regulations, and when the DOJ does not act private litigants have free reign to argue that it means whatever appears in their interest. DOJ itself has the same freedom, for it can change its own policies for prosecution and settlement without any oversight by the courts.
Why the DOJ has decided to act through private settlements rather than regulation is an interesting subject for speculation, but there is little doubt that the only people who benefit are lawyers and consultants. The disabled suffer the delay in promulgation and implementation of regulations that may benefit them while businesses suffer the uncertainty and expense that come from never knowing quite how to spend their money on accessibility. Although it may be impossible given the bureaucratic love of delay found in most government agencies, reform should be on the agenda for both Congress and the Executive branches.
Endless liability under the Fair Housing Act — and let’s make it personal
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA, Residential Development, Statute of Limitatinos Tags: Department of Justice, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, FHA Litigation
I often remind my clients that when it comes to the Fair Housing Act and Americans with Disabilities Act the adage “ignorance is bliss” does not apply. Last week’s decision from the Southern District of Mississippi, U.S. v. Dawn Properties, Inc. et al 2014 WL 5775324 (S.D. Miss. Nov. 6, 2014) is a reminder that ignorance may turn corporate liability into personal liability for managers or owners, and that time may not be enough to insure safety.
The underlying business deals were common in the real estate development business. An LLC, Ridgeland Construction One LLC, was created to develop an apartment complex. Construction was finished in 2000 and the LLC was merged into a Delaware LLC of the same name. It was then sold to a new group of investors. In 2006 the property was sold and, two years later, the LLC was dissolved. No one involved suspected that there might be FHA accessibility violations although it appears no survey was ever conducted to make sure. More
Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA
By richardhunt in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Just a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.
The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. More
It’s time to apply Iqbal and Twombly to ADA pleadings
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Defendants are frequently and justifiably annoyed by the usual style of pleading in ADA accessibility cases. It appears that a few courts, although a minority, have begun to apply ordinary federal pleading standards to these claims, which will make it much easier to obtain dismissal of those without real merit.
Many ADA plaintiffs are cagey, to say the least, about exactly what barriers they encountered, when they encountered them, and what effect the encounter had. A typical shopping center lawsuit, for example, may allege that there are cross slopes, improperly marked handicapped parking, and ramps that are too steep, but will not identify the location of the cross slopes, parking or ramps. The date or dates on which the plaintiff encountered these barriers will not be stated, and there will be only the most general allegation that the plaintiff was, as a result of these conditions, unable to have access to the center. More