This blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4) More
FHA Defense
“Disability” means what? A pandemic reminder that words are slippery
On May 19, 2020 Judge Fred Biery of the Western District of Texas entered and order enjoining various state officials from preventing individuals from voting by mail if they so desired based on a fear of contracting Covid-19. There will certainly be appeals and arguments about the ruling, but for those interested in disability law generally it serves as a reminder that “disability” is not a word whose meaning is fixed. More
ADA and FHA Quick Hits – is it safe to come out yet edition.
Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.
Owners liability for leased premises – you can’t rely on your tenant.
Dunbar v. Empire Szechuan Noodle H. Inc., 2020 WL 2132339 (S.D.N.Y. May 5, 2020) perfectly illustrates the overriding responsibility of a property owner for the accessibility of a leased premises. The tenant defendant, Empire Szechuan, was evicted for non-payment of rent and went out of business. The Court had no trouble finding claims against it were moot since there was no possibility of effective injunctive relief. The property owner, New Gold Equities, did not fare so well. The court rejected its argument that claims were moot because the new tenant was contractually obligated to comply with the ADA because that compliance was in the future and therefore far from certain. The Court also noted that the ADA lease provision didn’t add much because the new tenant and owner were already obligated to comply with the ADA. A property owner who relies on their tenant may find themselves with continuing liability regardless of any lease provision.
On the hook: Website Developers may have ADA liability for inaccessible websites
Website developers and even remediation experts have reason to be concerned about a recent decision from California. In Bashin v. Conduent, Inc., Case No. RG18888208 in the Superior Court for Alemeda County, Judge Brad Seligman refused to dismiss ADA claims against the developer of a website for the State of California Department of Public Works and Recreation. Each part of the decision identifies a real risk that every website developer needs to be aware of. More
ADA and FHA Quick Hits – Spring has sprung edition
The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.
Corona Virus and Title III of the ADA
A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain. More