Thursday, October 24, 2019 11:00 AM – 12:15 PM Seminar 12 ......Thursday, October 24, 2019 11:00...

Thursday, October 24, 2019 11:00 AM – 12:15 PM

Seminar 12

ADA Title III Strategies and Updates all Landlords and Tenants Need to Know

Presented to

2019 U.S. Shopping Center Law Conference Marriott Marquis San Diego Marina

San Diego, CA October 23-25, 2019

by:

Alisa N. Carr Partner

Leech Tishman Fuscaldo & Lampl, LLC 525 William Penn Place, Floor 28

Pittsburgh, PA 15219 [email protected]

Minh N. Vu Partner

Seyfarth Shaw LLP 975 F. Street, N.W.

Washington, D.C. 20004 [email protected]

mailto:[email protected]

mailto:[email protected]

TABLE OF CONTENTS

I. The Purpose and Interpretation of the Americans with Disabilities Act

II. Who is Covered by the ADA – Covered Entities

III. Place of Public Accommodation Defined

IV. Obligations of a Public Accommodation

V. The Obligation to Remove Physical Barriers

A. What is the Definition of “Readily Achievable”

B. Who Has the Burden of Proof as to “Readily Achievable”

C. Recent Caselaw

D. Readily Achievable – Historic Buildings

VI. The Duty to Provide an Integrated Setting

VII. They Duty to Provide Auxiliary Aids

VIII. ADA Title III Litigation – Recent Caselaw

A. Burdens of Proof

B. Standing in ADA Title III Litigation

C. The Four Factor Test – Intent to Return

D. Rejection of the Four Factor Test

E. The Deterrent Effect Test

F. Motions to Dismiss/Summary Judgment Denied

G. Motions to Dismiss/Summary Judgment Granted

H. Mootness – Voluntary Cessation

I. Damages – Attorney’s Fees

J. Fee Shifting

IX. Selected Cases

X. Service Animals

XI. Direct Threat Exception

XII. Digital Accessibility

I. The purpose and interpretation of the Americans with Disabilities Act

• The ADA was enacted to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).

• The ADA “as a whole is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999) (citing 42 U.S.C. § 12101(b)(1)).

• Divided into five (5) separate titles, Title III of the ADA (“Title III” or the “Act”) prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA) and requires newly constructed or altered places of public accommodation - as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings) to comply with the ADA Standards.

• Title III of the ADA “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” 42 U.S.C. § 12182(a); Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). Specifically, it requires “places of public accommodation” to “remove architectural barriers … in existing facilities … where such removal is readily achievable,” 42 U.S.C. § 12182(b)(2)(A)(iv), and to “design and construct facilities for first occupancy [no] later than 30 months after July 26, 1990 that are readily accessible to and usable by individuals with disabilities” 42 U.S.C. § 12183(a).

• The ADA’s definition of “disability” is broadly construed “in favor of expansive coverage to the maximum extent permitted by the terms of the ADA”.

• The Department of Justice (“DOJ”) is the government agency charged with enforcing the ADA in cases of general importance or where a pattern or practice of discrimination is alleged but cannot sue a party unless negotiations to settle the dispute have failed. The DOJ can seek up to $55,000 for the first violation and $110,000 for any subsequent violations. Individuals also have a private right of action and can file suit without exhausting administrative remedies. Individuals may obtain only injunctive, not monetary relief, but are entitled to any attorneys’ fees under a prevailing party standard.

II. Who is covered by the ADA – covered entities

• The Title III regulation covers –

Public accommodations (i.e., private entities that own, operate, lease, or lease to places of public accommodation);

Commercial facilities (nonresidential facilities, including office buildings, factories, and warehouses, whose operations affect commerce); and,

Private entities that offer certain examinations and courses related to educational and occupational certification.

Entities controlled by religious organizations, including places of worship, are not covered.

• Cole v. Saint Francis Med. Ctr., No. 1:15 CV 98 ACL, 2016 WL 7474988, at *5 (E.D. Mo. Dec. 29, 2016) – (hospital exempt because it was under the jurisdiction of local Catholic diocese, “participate[d] in the health care mission of the Roman Catholic Church,” was required to

adhere to the “doctrine of the Roman Catholic Church,” and board members and bylaws changes had to be approved by the bishop of the diocese);

• Marshall v. Sisters of Holy Family of Nazareth, 399 F. Supp.2d 597, 598 (E.D. Pa. 2005) (grade school operated by Roman Catholic nuns exempt when curriculum included bible study and Christian principles, and school listed in “The Official Catholic Directory”).

• White v. Denver Seminary, 157 F. Supp.2d 1171, 1173 (D. Colo. 2001) (seminary exempt when its purpose was to train students for Christian ministry, faculty and students required to assert a statement of religious beliefs and participate in religious curriculum, and majority of Board of Trustees had to be members of the Conservative Baptist Association).

• Rose v. Cahee, 727 F.Supp.2d 728 (E.D. Wis. 2010), the Court found that Agnesian Healthcare, Inc. (“Agnesian”), a not-for-profit, tax exempt healthcare corporation was covered by the religious exemption. Id. at 747. Several factors influenced the Court's decision. First, the religious exemption appears to be very broad, since Congress extended it not only to religious organizations but also to those entities controlled by religious organizations. Id. Second, an order of Catholic nuns sponsored Agnesian and occupied “a primary role in the corporation's corporate governance structure.” Id. The order made up one class of corporate membership, and only that class had the authority to amend or repeal the corporation's articles of incorporation and bylaws. Id. at 747–48.

• Reed v. Columbia St. Mary's Hosp., 236 F. Supp. 3d 1091, 1102 (E.D. Wis. 2017).

• Marshall v. Sisters of Holy Family of Nazareth, 399 F.Supp.2d 597, 598 (E.D. Pa. 2005) (grade school operated by Roman Catholic nuns exempt when curriculum included bible study and Christian principles, and school was listed in “The Official Catholic Directory”).

• Sloan v. Community Christian Day School, LLC, No. 3-15-0551, 2015 WL 10437824, at * 3, (M.D. Tenn. Dec. 11, 2015) (Christian school not exempt when school not owned, affiliated with, or financially supported by any recognized religious group; owned by two individuals who were not ministers). Given that the regulations provide that Title III's religious exemption is “broad,” and in the absence of controverting evidence, the Court finds that SFMC is exempt from Title III of the ADA and Defendant's Motion for Summary Judgment will be granted as to Counts III and IV of Cole's Complaint.

Private clubs are not covered

• Private clubs are not covered, except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation. Clegg v. Cult Awareness Network, 18 F.3d 752, 755 n. 3 (9th Cir.1994); Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992 (11th Cir. 1982).

• Without a statutory definition of the term “private club”, see the eight-factor test set forth in United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989). The eight Lansdowne factors are (1) “[t]he genuine selectivity of the group in the admission of its members”; (2) “[t]he membership’s control over the operations of the establishment”; (3) “[t]he history of the organization”; (4) “[t]he use of the facilities by nonmembers”; (5) “[t]he purpose of the club’s existence”; (6)“[w]hether the club advertises for members”; (7) “[w]hether the club is profit or nonprofit”; and (8) “[t]he formalities observed by the club, e.g., bylaws, meetings, membership cards.” Id. at 796-97.

• Lobel v. Woodland Golf Club of Auburndale, 260 F. Supp. 3d 127, 140 (D. Mass. 2017), appeal dismissed sub nom. Robert Lobel v. Woodland Golf Club of Auburndale, No. 17-1657, 2017 WL 6762405 (1st Cir. Dec. 19, 2017)

• State and local governments are not covered by the Title III regulation, but rather by ADA Title II. 42 U.S.C. § 12181.

III. Place of Public Accommodation Defined

• An entity is a place of “public accommodation,” and is therefore regulated by the ADA, if its operations “affect commerce,” and it falls within one of twelve enumerated categories. Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) (citing 42 U.S.C. § 12181(7)(A)-(L)).

• The phrase “public accommodation” is defined in terms of 12 extensive categories, which the legislative history indicates “should be construed liberally” to afford people with disabilities “equal access” to the wide variety of establishments available to the nondisabled. PGA Tour, Inc. v. Martin, 532 U.S. 661, 667 (2001).

• The Act defines “place of public accommodation” as:

A facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories:

(1) A place of lodging, as that term is defined by the Act;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12182.

IV. Obligations of a Public Accommodation

• To comply with the ADA, a public accommodation must:

(ii) Provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity;

(iii) Eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation;

(iv) Make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided;

(v) Furnish auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result;

(vi) Remove architectural and structural communication barriers in existing facilities where readily achievable;

(vii) Maintain accessible features of facilities and equipment;

(viii) Provide equivalent transportation services and purchase accessible vehicles in certain circumstances;

(ix) Design and construct new facilities and, when undertaking alterations, alter existing facilities in accordance with the Americans with Disabilities Act Accessibility Guidelines issued by the Architectural and Transportation Barriers Compliance Board and incorporated in the final Department of Justice Title III regulation.

V. The Obligation to Remove Physical Barriers

• Under Title III of the ADA, “discrimination” specifically includes “failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.”

42 U.S.C. § 12182(b)(2)(A)(iv).

• A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.

• Examples of steps to remove barriers include, but are not limited to, the following actions --

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

28 CFR § 36.304.

• If removal is not readily achievable, alternative steps must be taken to make goods and services accessible. 42 U.S.C. § 12182(a); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

• The obligation to remove barriers when achievable is a continuing one which may change as a business grows or circumstances change.

A. What is the definition of “readily achievable”

• Discrimination under the ADA includes the failure to remove physical “architectural barriers” in existing facilities where such removal is “readily achievable”. 42 U.S.C. § 12182(b)(2)(A)(iv).

• Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include:

(x) The nature and cost of the action needed under this chapter;

(xi) The overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

(xii) The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(xiii) The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

42 U.S.C. § 12181(9).

• What is readily achievable is determined on a case-by-case basis in light of:

(i) the nature and the cost of the modification;

(ii) the overall financial resources of the business in question;

(iii) the number of persons employed at the facility; and

(iv) the impact of removing the barrier on the operation of the facility. Examples of exterior barrier removal measures include the installation of ramps, marking curb cuts at sidewalks and entrances and restriping parking lots.

• The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). The ADA further sets out several factors to be considered in determining whether removal of architectural barriers is readily achievable: (1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Id. § 12181(9)(A)-(D); see also First Bank Nat’l Ass’n v. FDIC, 79 F.3d 362, 370 n. 8 (3d Cir. 1996).

• If removal is not readily achievable, alternative steps must be taken to make goods and services accessible. The obligation to remove barriers when achievable is a continuing one which may change as a business grows or circumstances change.

• The ADA requires all public accommodations to maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iv).

• A public accommodation is required to reasonably modify its policies, practices or procedures, if necessary, to avoid discrimination. 29 C.F.R. § 36.302

• A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

• The ADA does not require that all existing buildings be retrofitted for immediate accessibility. Instead, the Act contemplates planned alterations and barrier removal to improve accessibility in older buildings over time. To this effect, the U.S. Department of Justice (“DOJ”) has prioritized ADA barrier removal as follows:

1. Priority 1: Accessible entrance into the facility.

2. Priority 2: Access to goods and services.

3. Priority 3: Access to restrooms.

4. Priority 4: Any other measures necessary.

• Whether a facility meets the “readily accessible” requirement is defined, in part, by the ADA Accessibility Guidelines (“ADAAG”). Compiled by the DOJ and incorporated into the Code of Federal Regulations, the latest version of the ADAAG (2010) became mandatory on March 15,

2012 and establishes the technical standards required for “full and equal enjoyment” of a public accommodation. Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011); Fortyune v. Am. Multi–Cinema, Inc., 364 F.3d 1075, 1080–81 (9th Cir. 2004); https://www.access.board.gov.

• In determining a covered entity’s obligation for barrier removal, the Court must consider the “overall financial resources,” “effect on expenses and resources,” and the “effect on operations” of the facilities involved in the action.” Lieber, 80 F. Supp. 2d at 1078 (citing 42 U.S.C. § 12181(9)). The Second Circuit requires “a plaintiff to articulate a plausible proposal for barrier removal, the costs of which, facially, do not clearly exceed its benefits.” Roberts v. Royal Atl. Corp., 542 F.3d 363, 373 (2d Cir. 2008) (citation omitted). Courts determine whether a method is readily achievable on a case-by-case basis. See Montano v. Bonnie Brae Convalescent Hosp., Inc., 79 F. Supp. 3d 1120, 1127 (C.D. Cal. 2015); Guzman v. Denny’s Inc., 40 F. Supp. 2d 930, 935 (S.D. Ohio 1999). The readily achievable inquiry “involves a ‘fact intensive inquiry that will rarely be decided on summary judgment.’” Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1067 (E.D. Cal. 2006) (citation omitted); see also Brown v. Cnty. of Nassau, 736 F. Supp. 2d 602, 622 (E.D.N.Y. 2010).

B. Who has the Burden of Proof as to “Readily Achievable”

• Title III of the ADA remains silent as to who bears the burden of proving that removal of an architectural barrier is, or is not, readily achievable. See Pascuiti v. New York Yankees, No. 98 CIV. 8186(SAS), 1999 WL 1102748, at *1 (S.D.N.Y. Dec.6, 1999).

• To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). In addition, “[t]o succeed on an ADA claim of discrimination on account of one's disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the defendant's place of business [or property] presents an architectural barrier prohibited under the ADA and (2) the removal of the barrier is readily achievable.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. Cal. 2014) (quoting Parr v. L & L Drive–Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000)). Kong v. Lopez, No. CV182538MWFGJSX, 2019 WL 1751826, at *6 (C.D. Cal. Feb. 15, 2019).

• Customer brought action alleging violation of Americans with Disabilities Act (ADA) against liquor store. After receiving the complaint, liquor store designated accessible parking and posted signs offering assistance but did not change a non-ADA-compliant threshold or countertop. Following a non-jury trial, the Court dismissed as moot the ADA claims with respect to the parking lot and found in favor of the property owner on the remaining claims. Circuit Court held that district court properly required plaintiff to initially present evidence tending to show that the suggested method of barrier removal was readily achievable under the circumstances. Wright v. RL Liquor, 887 F.3d 361 (8th Cir. 2018).

• Under the Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, 264 F.3d 999 (10th Cir. 2001) approach, the plaintiff has the initial burden of production to show (1) that an architectural barrier exists; and (2) that the proposed method of architectural barrier removal is “readily achievable,” i.e., “easily accomplishable and able to be carried out without much difficulty or expense” under the particular circumstances of the case. Colorado Cross, 264 F.3d at 1007. If the plaintiff meets this burden, the defendant then bears the ultimate burden of persuasion that barrier removal is not “readily achievable.” Id. at 1002-03; see also White v. Cinemark USA, Inc., 2005 WL 1865495 at *6 (E.D.Cal.2005); Access Now, Inc. v. So. 1274 Fla. Stadium Corp., 161 F.Supp.2d 1357, 1363 (S.D.Fla.2001); Ass’n for Disabled Ams., Inc. v. Claypool Holdings, LLC, 2001 WL 1112109 at *26 (S.D.Ind.2001); Pascuiti v. New York Yankees, 1999 WL 1102748 at *4 (S.D.N.Y.1999); Speciner v. Nationsbank, N.A., 215 F.Supp.2d 622, 632 (D.Md.2002); Access 4 All, Inc. v. ANI Associates, Inc, 2007 WL 2793373 (D.N.J. 2007).

• See also Gathright–Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir. 2006); any plaintiff alleging Title III ADA discrimination must make an initial showing of discrimination under the ADA. To meet their burden of proof in discrimination cases focused on pre-existing buildings, plaintiffs must present evidence of a barrier, and “sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost [of]

implementation, and the economic operation of the facility.” Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir.2006). When plaintiffs meet the burden of production showing that the removal of barriers is “readily achievable,” the burden then shifts to the defendant to prove the affirmative defense that the removal of a barrier is not readily achievable.

• Cf Hahn ex rel. Barta v. Linn County, Iowa, 130 F.Supp.2d 1036, 1055 (N.D.Iowa 2001) (“Eligibility criteria that ‘screen out’ or ‘tend to screen out’ disabled individuals violate the ADA unless the proponent of the eligibility criteria can show that the eligibility requirements are necessary.”); Bowers v. NCAA, 118 F.Supp.2d 494, 518 (D.N.J.2000) (same), opinion amended on reargument, 130 F.Supp.2d 610 (D.N.J.2001); Guckenberger v. Boston Univ., 974 F.Supp. 106, 134 (D.Mass.1997) (“[P]ublic entities cannot use eligibility criteria that screen out or tend to screen out individuals with disabilities unless they can show that the criteria are necessary.”).

• “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). In addition, “[t]o succeed on an ADA claim of discrimination on account of one's disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the defendant's place of business [or property] presents an architectural barrier prohibited under the ADA and (2) the removal of the barrier is readily achievable.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. Cal. 2014) (quoting Parr v. L & L Drive–Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000) ). Kong v. Lopez, No. CV182538MWFGJSX, 2019 WL 1751826, at *6 (C.D. Cal. Feb. 15, 2019).

C. Recent Caselaw – Plaintiff Failed to Meet Burden of Establishing Modifications are Readily Achievable

• Wright v. RL Liquor, 887 F.3d 361 (8th Cir. 2018) – plaintiff failed to offer a plausible proposal for barrier removal: “Wright presented no suggested modifications of his own and no expert testimony to counter Fleming's expert opinion that modifications were not readily achievable.” The district court concluded that Wright did not present evidence for “a reasoned evaluation of the factors relevant to the ‘readily achievable’ determination,” or satisfy even a “light burden” of production.

• Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018) – cost of remediation rendered work not readily achievable - Although the Department of Justice regulations list ramp installation as an example of readily achievable barrier removal, 28 C.F.R. § 36.304(b)(1), “the regulations also state that whether removal of a barrier is readily achievable is subject to a case by case inquiry.” Colo. Cross, 264 F.3d at 1009 (citation omitted). Here, Heartwood submitted substantial, unrefuted evidence that removal of the barriers in question would not be “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). On this record, the district court did not err in granting Heartwood summary judgment dismissing Wong's Title III claim on the merits.

• Ford v. H Unit Five, Inc., No. 2:16-CV-780-TC, 2017 WL 4271433, at *7 (D. Utah Sept. 25, 2017) – plaintiff failed to offer sufficient evidence that removal of barriers she encountered on Good Earth's premises is readily achievable; summary judgment granted.

• Kennedy v. Omegagas & Oil LLC, No. 9:17-CV-80103, 2018 WL 310051, at *8 (S.D. Fla. Jan. 3, 2018). Ms. Kennedy failed to meet her burden of production with respect to whether remedying the limited maneuvering space in the bathroom was readily achievable. Mr. Herrera testified that he estimated it would cost $4,650 to remedy the lack of maneuvering space in the bathroom. Id. at 60:22–25. He stated that this estimate was not specific to the property but was an average based on other sites. Id. at 70:10–14. Mr. Herrera did not perform a readily achievable inspection which would require analyzing the structure of the building, the plumbing, whether a wall is load bearing, and the effect that remedying the violations would have on the operation of the business. Id. at 70:25–71:25. Rather, his estimate was based on the assumption that the partition separating wall was a simple separating wall, rather than a wall that contained plumbing and electrical. Id. at 69:6–11. He did not conduct an analysis of the plumbing or electrical in the building. Id. at 69:17–18. Thus, Ms. Kennedy did not meet her burden to show that remedying this violation was readily achievable.

D. Readily Achievable - Historic Buildings

• The Department of Justice has interpreted the ADA’s barrier removal and alteration requirements in accordance with the Congressional desire to take into account the national interest in preserving significant historical buildings.” Speciner v. NationsBank, N.A., 215 F.Supp.2d 622, 628-29 (D.Md.2002). Thus, in the context of a historic building, “barrier removal would not be considered ‘readily achievable’ if it would threaten or destroy the historic significance of [the] building.” Id. at 629 (quoting ADA Title III DOJ Technical Assistance Manual § III-4.4200). The alterations to the historic building need only comply with the accessibility standards “to the maximum extent feasible.” 28 C.F.R. § 36.405(a).

• Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir. 2006) patrons failed to demonstrate that their proposed options for additional wheelchair seating were readily achievable, as required by Title III of the ADA, and theater established that additional seating could not be added without much difficulty or expense.

• Neal v. Second Sole of Youngstown, Inc., No. 1:17-CV-1625, 2018 WL 1740140, at *11 (N.D. Ohio Apr. 11, 2018) – property owner must submit sufficient evidence that both outside and inside of building is historic to exempt entire property.

VI. The Duty to Provide an Integrated Setting

• § 36.203 Integrated settings.

(a) General. A public accommodation shall afford goods, services, facilities, privileges, advantages, and accommodations to an individual with a disability in the most integrated setting appropriate to the needs of the individual.

(b) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this subpart, a public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different.

(c) Accommodations and services.

(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit available under this part that such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

• Title III requires covered entities to afford their goods and services to an individual with a disability “in the most integrated setting appropriate to the needs of the individual.” 42 U.S.C. § 12182(b)(1)(B) (Supp. II 1990).

• The preamble to the title III regulation provides two pages of examples and explanations illustrating the meaning of this provision. One example provides that it would be a violation of this provision to require persons with mental disabilities to eat in the back room of a restaurant or to refuse to allow a person with a disability to full use of a health spa because of stereotypes about the person’s ability to participate. 28 C.F.R. pt. 26, app. B, at 581.

• The legislative history provides further illustration, noting that the “integrated settings” provision is intended to prevent segregation based on fears and stereotypes about persons with disabilities. H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. II, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 385 (“House Report, Pt. II”); see also id. pt. III, at 56–57 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 479–80 (“House report, Pt. III”).

VII. The Duty to Provide Auxiliary Aids

• In addition to the removal of physical barriers, public accommodations are required to provide auxiliary aids and services in order to extend their services to persons with disabilities, unless to do so would pose an “undue burden” to the covered entity or would “fundamentally alter” the nature of its goods or services. 42 U.S.C. § 12182(b)(2)(A)(iii) (Supp. II 1990) (emphasis added).

• The regulations define a “fundamental alteration” as a modification that is so significant that it alters the essential nature of the goods and services offered. See 28 C.F.R. §36.303(a).

• An “undue burden” is defined as a significant difficulty or expense based on a number of factors including, the nature and cost of the action, the overall financial resources of the site or sites involved, the number of persons employed at the site and the effect on expenses and resources. See 28 C.F.R. §36.104.

• For example, a small theater group that could not afford to provide a sign interpreter for each performance could instead provide deaf patrons with a written script as an effective communication alternative. The proposed auxiliary aid, and or its alternative, must ensure to the maximum extent possible, that individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation. See 28 C.F.R. §36.303(a); 28 C.F.R. §36.303(f).

• Examples of “auxiliary aids and services” in the context of the visually impaired include: qualified readers, taped texts, audio recordings, Brailed materials, large-print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services and actions. 28 C.F.R. §36.303(b).

• Auxiliary aids that would result in an undue burden for the public accommodation, (i.e., “significant difficulty or expense”) or in a fundamental alteration in the nature of the goods or services are not required by the regulation. However, a public accommodation must still furnish another auxiliary aid, if available, that does not result in a fundamental alteration or an undue burden. This determination is also made on a case-by-case basis. 28 C.F.R. Part 36, App. B, §36.303.

• Factors for determining whether a particular action will create an undue burden are the same factors as those provided for assessing whether an action is “readily achievable.”

• “Readily achievable” is a lower standard than “undue burden” in that it requires a lower level of effort on the part of the public accommodation.... [A] public accommodation is not required to provide any particular aid or service that would result in either a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations offered or in an undue burden. 28 C.F.R. § 36.104 app. B, 576, 595.

• See Appendix A – ADA Requirements for Effective Communication

VIII. ADA Title III Litigation A. Burdens of Proof

• To prevail on a discrimination claim under Title III, a plaintiff must prove:

(v) He/she is disabled within the meaning of the ADA;

(vi) The defendant is a private entity that owns, leases, or operates a place of public accommodation; and

(vii) The plaintiff was denied public accommodations by the defendant because of his/her disability.

42 U.S.C. § 12182(a); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D.Cal.2011); Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011); 28 C.F.R. pt. 1191 (2010 Standards); 28 C.F.R. pt. 36, App. D (1991 Standards); Koester v. Young Men’s Christian Association of Greater St. Louis, 855 F.3d 908 (8th Cir. 2017).

• § 36.105 Definition of “disability. - (a)(1) Disability means, with respect to an individual: (i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) A record of such an impairment; or (iii) Being regarded as having such an impairment as described in paragraph (f) of this section.

• The definition of “disability” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

• An individual may establish coverage under any one or more of the three prongs of the definition of disability in paragraph (a)(1) of this section, the “actual disability” prong in paragraph (a)(1)(i) of this section, the “record of” prong in paragraph (a)(1)(ii) of this section, or the “regarded as” prong in paragraph (a)(1)(iii) of this section.

• Where an individual is not challenging a public accommodation’s failure to provide reasonable modifications under § 36.302, it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the “regarded as” prong of the definition of “disability,” which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the “actual disability” or “record of” prong regardless of whether the individual is challenging a public accommodation’s failure to provide reasonable modifications.

• Broad construction. Whether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by the ADA and should not demand extensive analysis. An individual will be considered to fall within this prong of the definition of “disability” if the individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment. In determining whether an impairment substantially limited a major life activity, the principles articulated in paragraph (d)(1) of this section apply.

• Liability is imposed upon any person or entity who owns, leases, leases to, or operates a place of public accommodation. The offending barrier does not need to completely preclude the plaintiff from entering or using the facility; it need only interfere with the plaintiff’s full and equal enjoyment of the facility. While landlords and tenants may allocate compliance responsibility in a lease agreement, each remains individually responsible for compliance with ADA standards and remediation as to third parties.

• The third element - whether a plaintiff is denied public accommodations on the basis of disability - is met if there was a violation of applicable accessibility standards. Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011); Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc).

• Although the ADA does not mandate removal of structural barriers in existing facilities where removal is not “readily achievable” 42 U.S.C. § 12182(b)(2)(A)(iv), even minor or technical violations of access standards are a per se violation of the ADA when removal is readily achievable, Chapman, 631 F.3d at 945. Indeed, its requirements are as “precise as they are thorough, and the difference between compliance and noncompliance with … the ADA is often a matter of inches. Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc).

• Plaintiffs seeking prospective injunctive relief “must demonstrate a ‘real and immediate threat’ of future injury in order to satisfy the ‘injury in fact’ requirement.” Anderson, 943 F.Supp.2d at 538, quoting Access 4 All, Inc. v. Absecon Hospitality Corp, 2006 WL 3109966 at *5 (D.N.J. Oct. 30, 2006), quoting City of L.A. v. Lyons, 461 U.S. 95, 103-04 (1983).

• The United States Attorney General (“Attorney General”) is authorized to bring lawsuits in cases of general public importance or where there is a “pattern or practice” of discrimination.

B. Standing in ADA Title III Litigation

• A motion to dismiss for want to standing is properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter. Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).

• In evaluating whether a complaint adequately pleads the elements of standing, courts apply the standard of reviewing a complaint pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim “Court[s] must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party.” Ballentine, 486 F.3d at 810 (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also Baldwin v. Univ. of Pittsburgh Med. Ctr. 636 F.3d 69, 73 (3d Cir. 2011) (“A dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

• “A complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). With respect to 12(b)(1) motions in particular, “[t]he plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims rather than facts that are merely consistent with such a right.” Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007); In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d. Cir. 2012).

• To satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000); Lujan v. Defenders of Wildlife 504 U.S. 555, 560-561(1992); FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996).

• The manner in which standing must be supported depends upon the stage of the litigation at which the issue is raised: “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Defenders of Wildlife, 504 U.S. at 561 quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990).

C. The Four Factor Test – Intent to Return

• A plaintiff who has been discriminated against under the ADA can show that he or she faces an imminent injury in fact by showing that he or she has an intent to return to the place where the alleged discrimination took place and that upon such return, the same alleged discrimination will occur again. Klaus v. Jonestown Bank & Trust Co. of Jonestown, No. 1–24884, 2013 WL 4079946, at *5 (M.D.Pa. Aug.13, 2013).

• Anderson v. Macy’s, Inc., 943 F. Supp.2d 531, 538 (W.D. Pa. 2013) Judge Hornak held:

In Title III ADA [c]ases in which disabled plaintiffs bring suit seeking an injunction to cure discriminatory practices, courts generally look to four factors to determine the likelihood of the plaintiff returning to the place of the alleged ADA violation, and therefore whether the threat of injury is concrete and particularized: “(1) the plaintiff’s proximity to the defendant’s place of public accommodation; (2) the plaintiffs past patronage; (3) the definitiveness of the plaintiffs plan to return; and (4) the plaintiff’s frequency of nearby travel.” “The four-factor test is one of totality, and a finding in favor of [the plaintiff] does not require alignment of all four factors.”

Anderson, 943 F. Supp. 2d at 539 (quoting Harty v. Burlington Coat Factory of Pa., L.L.C., 2011 WL 2415169, at *4, 7 (E.D. Pa. June 16, 2011)).

• These courts have used a four factor “proximity test” to determine if specific intent exists that looks at: (1) plaintiff’s proximity to the defendant’s place of public accommodation; (2) plaintiff’s past patronage; (3) definitiveness of plaintiff’s plan to return; and (4) plaintiff’s frequency of nearby travel. Jonestown Bank, 2013 WL 4079946, at *5; Harty, 2011 WL 2415169, at *5; Reviello, 2012 WL 2196320, at *4; Dempsey v. Pistol Pete’s Beef N Beer, No. 8–5454, 2009 WL 3584597, at *4 (D.N.J. Oct. 26, 2009); Access 4 All, Inc. v. 539 Absecon Boulevard, LLC, No. 5–5624, 2006 WL 1804578, at *3 (D.N.J. June 26, 2006); Davis v. Am. Nat’l Bank of Tex., No. 4–382, 2012 WL 7801700, at *6 (E.D.Tex. Dec.11, 2012); Hunter v. First United Bank & Trust Co., No. 4–374, 2012 WL 7004154, at *5 (E.D.Tex. Dec.11, 2012).

• As to the first factor, regarding proximity, “as the distance between a plaintiff’s residence and a public accommodation increases, the potential for the occurrence of future harms decreases.” Anderson, 943 F.Supp.2d at 539, quoting Molski v. Kahn Winery, 405 F.Supp.2d 1160, 1163-64 (C.D.Cal. 2005).

• “[T]he plaintiff must put forth a definitive, uncontested intent to return before filing the complaint to establish standing.” Anderson, 943 F.Supp.2d at 540, quoting Disabled Patriots of Am., Inc. v. City of Trenton, 2008 WL 4416459 at *2 (D.N.J. Sept. 24, 2008).

D. Rejection of the Four Factor Test

• Klaus v. Jonestown Bank & Trust Co. of Jonestown, 2013 WL 4079946, at *7 (M.D. Pa. Aug. 13, 2013) (describing four-part test as “rigid” and “unendorsed” by the Third Circuit).

• Daniels v. Arcade, L.P. 477 F. App’x 125, 129 (4th Cir. 2012) (declining to adopt the four-factor test, which the court described as having “overly and unnecessarily complicate[d] the issue at hand).

• D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1037-38 (9th Cir. 2008) (finding intent to return based on regularity of visits and stated intent but not proximity, disabled plaintiff who expressed intent to return to Santa Barbara area—as she frequently did for both business and pleasure—and stay at Best Western Encina if barriers were removed established standing).

• Brown v. Showboat Atlantic Propco, LLC, 2009 WL 690625, at*2 (D.N.J. Mar. 11, 2009).

• Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008) (legally blind patron who frequently visited restaurants near her home and did not receive “effective communication” of their menu options had standing to pursue claim).

• Chapman v. Pier 1 Imports, 631 F.3d 939, 948 (9th Cir. 2011).

• Disabled Americans for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 62-63 (1st Cir. 2005).

• Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002) (plaintiff who traveled weekly to city 70 miles from where he lived to visit his grandmother and encountered architectural barriers at grocery store had standing to sue).

• Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) (plaintiff who lived in next county but traveled frequently 30.5 miles to supermarket near his lawyer’s office and encountered architectural barriers had standing).

• Kreisler v. Second Ave. Dining Corp., 731 F.3d 184, 188 (2d Cir. 2013) (standing requirements met when it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ place of public accommodation).

• Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211-12 (10th Cir. 2014) (“CCDC”) (plaintiff who submitted affidavit stating that she intended to return to store with barriers at least six times per year had standing to sue).

E. The Deterrent Effect Test

• The alternative method of showing an injury in fact to support injunctive relief is referred to as the deterrent effect test. Klaus v. Jonestown Bank, 2013 WL 4079946, at *5 (M.D. Pa 2013); Chapman, 631 F.3d at 950; Disabled Am. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005); Betancourt, 732 F.Supp.2d at 708–09; 198, 229 (D.N.J. 2003); Clark v. McDonald’s Corp. 213 F.R.D. 198, 229 (D.N.J. 2003);

• Under the deterrent effect test, a plaintiff is considered to have suffered an actual injury when he or she is deterred from patronizing a public accommodation because of accessibility barriers. Chapman, 631 F.3d at 950; Disabled Am. for Equal Access, Inc., 405 F.3d at 64–65.

• The deterrent effect test relies on the statement in the ADA that: “Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subsection does not intend to comply with its provisions.” 42 U.S.C. § 12188(a)(1).

• Title III explicitly does not require “a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization ... does not intend to comply with Title III of the ADA 42 U.S.C. § § 12188(a)(2).

• Under the deterrent effect test, a plaintiff is considered to have suffered an actual injury when he or she is deterred from patronizing a public accommodation because of accessibility barriers. Garner v. VST Bank, 2013 WL 6731903 at *5 (E.D.Pa. Dec. 20, 2013).

• Plaintiff must show that he or she has actual knowledge of barriers preventing equal access and a reasonable likelihood that the plaintiff would use the facility if not for the barriers. Krazter v. Gamma Management Group, Inc., 2005 WL 2644996, at *3 (E.D. Pa. 2005) (finding the plaintiffs had standing when they alleged that they personally visited public accommodation, had desire to visit it again, and provided specific information about ADA violations).

F. Motions to Dismiss/Summary Judgment Denied

• Clark v. McDonald’s Corp., 213 F.R.D. at 229 (deterrence from visiting a place of public accommodation known to be out-of-compliance with the ADA can constitute an actual and present injury as surely as tomorrow’s visit to the same location can constitute a threatened and imminent one).

• Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008) (plaintiff who had actual knowledge of the barriers at defendant’s store and was deterred from visiting store until the ADA violation was remedied demonstrated actual injury in fact and threat of future harm).

• Kreisler, 731 F.3d at 188 (disabled plaintiff in wheelchair saw inaccessible entrance to diner and did not have to attempt to overcome it prior to bringing suit).

• Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1037-38 (9th Cir. 2008) (plaintiff showed “intent to return” to store 550 miles from home once barriers were removed, thus really a deterrent effect case).

• Disabled Americans for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64-65 & n.7 (1st Cir. 2005) (wheelchair user did not have to engage in the futile and indeed hazardous gesture of attempting to board ferry that had no accessible ramps or bathrooms to establish a cognizable injury).

• Frame v. City of Arlington, 657 F.3d 215, 235-36 & n.104 (5th Cir. 2011) (en banc) (in a Title II case, wheelchair users did not have to limit their claims to noncompliant sidewalks they had actually tried to use).

• Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074-75 (7th Cir. 2013) (plaintiff who lived in Illinois but who was injured by spring-closing bathroom door of hotel in Overland Park, Kansas had standing).

• Heinzl v. Boston Market, 2014 WL 5803144 (W.D. Pa 2014) (Court denied motion to dismiss – discussing intent to return).

G. Motions to Dismiss/Summary Judgment Granted

• Hurley v. Tozzer, Ltd., No. 15CIV2785GBDHBP, 2018 WL 1872194, at *6 (S.D.N.Y. Feb. 2, 2018), report and recommendation adopted, No. 15CIV2785GBDHBP, 2018 WL 1087946 (S.D.N.Y. Feb. 26, 2018) – Plaintiff failed to produce sufficient evidence of intent to return. “Even drawing all factual inferences in favor of plaintiff, plaintiff's answer that “maybe” he'll visit Niagara again at some unspecified time in the future could not reasonably be found to establish an intent to return. Lujan v. Defenders of Wildlife, supra, 504 U.S. at 564, 112 S.Ct. 2130 (intent to return to the place of injury “some day” is insufficient); Bernstein v. City of New York, supra, 621 Fed.Appx. at 58-59 (ADA plaintiff's intent to return to Central Park could not solely be based on the fact that he has visited the park 30 times a year for the past 10 years); Ortiz v. Westchester Med. Ctr. Health Care Corp., supra, 2016 WL 6901314 at *9 (plaintiff's identification of a single past visit to the accused premises, without more, calls for impermissible indefinite speculation as to whether plaintiff would return); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 953 (9th Cir. 2011) (ADA plaintiff lacks standing if he is indifferent to returning to the accused premises or his alleged intent to return is not genuine); Nastu v. Stamford Health Integrated Practices, 16-cv-292 (JCH), 2016 WL 2858774 at *4 (D. Conn. May 16, 2016) (plaintiff did not properly allege standing where he failed to state why he would return to a specific medical facility when many other physicians in the same geographic area were available to meet his needs)”.

• Smith v. East West Enterprises, LLC et al. Case No. 3:17-cv-00736 (M.D. TN; August 17, 2017) Motion to Dismiss with prejudice granted for failure to plead sufficient facts in support of intent to return. “Taking all of Smith’s allegations as true, the court finds that he fails to plead facts sufficient to support an injury in fact because he cannot show the requisite threat of future injury. First, the non-proximity of the Galleria Taco Bell to Smith’s residence makes future injury unlikely. Smith resides in Sheffield, Alabama. Although Smith does not provide his address, Sheffield is over 100 miles from the Galleria Taco Bell. “Courts have consistently maintained that a distance over 100 miles weighs against finding a reasonable likelihood of future harm.”5 Jones v. Sears Roebuck & Co., No. 2:05–CV–535–MCE–KJM, 2006 WL 3437905, at *3 (E.D.Cal. Nov. 29, 2006) (granting motion to dismiss where the plaintiff lived 157 miles from property in question because there was little likelihood of future harm, as a matter of law); see also Molski v. Kahn Winery, 405 F. Supp. 2d 1160, 1164 (C.D. Cal. 2005) (same, 104 miles away); Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 998, 1002–03 (W.D.N.C. 2011), aff'd, 474 F. App'x 369 (4th Cir. 2012) (same, 120

miles away); Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 1045 (C.D. Cal. 2005) (same, 116 miles away). In his response, Smith relies heavily on the factual similarities between the present case and this court’s decision in Hall v. Hillsboro Plaza Retail Partners I, LLC, No. 313-cv-0058, 2013 WL 3771583 (M.D. Tenn. July 17, 2013). But the distance from Sheffield to the Galleria Taco Bell is approximately twice as far as the corresponding distance in Hall, which was well under the 100-mile threshold. Because Smith’s residence falls over that threshold, this factor weighs against a requisite threat of future injury. Smith lives over 100 miles from the Galleria Taco Bell. He fails to plead that he has visited the restaurant more than once, or even recently. He offers a vague intention to visit the restaurant “within the next few months” but does not corroborate that intention with any specific plans. His travel near the restaurant is not substantial enough to demonstrate a requisite threat of future injury. For these reasons, Smith cannot prove an injury in fact, and his case is dismissed due to lack of standing.”

• Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531 (W.D. Pa. 2013) (Court granted a Motion to Dismiss (with leave to amend) after determining that it was highly unlikely that the plaintiff would return to a Macy’s store s 21.7 miles away, when there is a Macy’s 5 miles from plaintiff’s residence).

• Whitaker v. Firman, 2013 U.S. Dist. LEXIS 117583 (W.D. Pa. August 20, 2013) (Court granted a motion for summary judgment in favor of a nightclub owner when the plaintiff presented no evidence of her intent to visit the club again).

• Heinzl v. Boston Market, 2014 WL 5803144 (W.D. Pa 2014) (Court denied motion to dismiss – discussing intent to return).

H. Mootness – Voluntary Cessation

• Structural changes made to gas station's parking lot by operator of gas station rendered moot ADA discrimination claims. Patron who relied on a wheelchair for mobility sought injunctive relief for operator to provide ADA-compliant handicap-accessible parking space. Operator had temporarily leveled the access aisle next to handicap-accessible space after patron filed lawsuit, then fully renovated the parking lot resulting in removal of the entire curb ramp and leveling the space beneath it, and there was no reason to believe that operator spent considerable time and money to renovate parking lot only to change it back once litigation was over. Hillesheim v. Holiday Stationstores, Inc., 903 F.3d 786 (8th Cir. 2018)

• The voluntary-cessation doctrine does not apply when “defendants' compliance with the ADA ... is far ‘more than a mere voluntary cessation of alleged illegal conduct, where we would leave [t]he defendant [s] ... free to return to [their] old ways.’ ” Hickman v. State of Mo., 144 F.3d 1141, 1143-44 (8th Cir. 1998), quoting Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). In Hickman, the defendant made structural changes to remove barriers. Id. at 1144. Here, after RL Liquor became aware of the lack of van-accessible parking, the store placed a handicap parking sign and painted a van-accessible parking spot. Unlike Sheely, where the defendant could capriciously reinstate its no-dogs policy, the sign and spot here are “far ‘more than a mere voluntary cessation’ ” that leaves the defendant free to return to its wrongful behavior. See id. The district court did not err in dismissing as moot the parking-lot claims. Wright v. RL Liquor, 887 F.3d 361, 363 (8th Cir. 2018).

• When a defendant agrees to provide all the prospective injunctive relief sought by a plaintiff, his claim for that relief may be dismissed as moot Medical Soc. of N.J. v. Herr, 191 F.Supp. 2d 574, 581 (D.N.J. 2002) (citing Johnson v. Horn 150 F.3d 276, 287 (3d Cir. 1998)).

• “It is true that when a defendant cures ADA violations, the case becomes moot”. Heinzl v. Quality Foods Corporation, 2014 WL 6453894 (W.D. Pa. November 17, 2014); Norkunas v. Tar Heel Capital Wendy’s LLC, 2011 WL 2940722, at *3 (W.D.N.C. July 19, 2011); Brother v. CPL Investments, Inc., 317 F.Supp.2d 1358, 1372–73 (S.D. Fla. 2004); Parr v. L & L Drive–Inn Restaurant, 96 F.Supp.2d 1065, 1087 (D.Haw.2000); Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F.Supp.2d 456, 461–62 (D. Md. 2000).

• Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130 (C.D. Cal. 2005) (plaintiffs ADA claims were moot and dismissed).

• Sawczyn v. BMO Harris Bank Nat. Ass’n, 8 F. Supp. 3d 1108, 1115 (D. Minn. 2014) (denying a voluntary cessation defense, in part, on the basis that the defendant could not show that it would maintain compliance, thereby implicitly holding that an injunction against the defendant’s maintenance policy or practice is proper under the ADA).

• Thomas v. Branch Banking and Trust Co., 32 F. Supp. 3d 1266, 1271 (N.D. Ga. 2014) (recognizing that a defendant’s failure to maintain accessibility would preclude application of the voluntary cessation defense and thus, implying that injunctive relief against the defendant’s maintenance policy or practice is available under the ADA).

• National Alliance for Accessibility, Inc. v. McDonald’s Corp., 2013 WL 6408650, at *7 (M.D. Fla. Dec. 6, 2013) (rejecting Defendant’s argument that no relief was available because structural features had been remediated).

• Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 861-62, 869 (N.D. Cal. 2011) (rejecting a voluntary cessation defense, even where the defendant had ADA maintenance policies and remediated inaccessible parking lots, because the defendant failed to follow its own policies and could rescind them at any time).

I. Damages – Attorney’s Fees

• Under Title III of the ADA, “the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs....” 42 U.S.C. § 12205.

• The Supreme Court has held that a prevailing plaintiff under a statute so worded should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)).

• To qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Buckhannon v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). A party cannot be considered the prevailing party absent some court order that changes the legal relationship between the parties. Id. at 604, 121 S.Ct. 1835.

• The most useful starting point for a fee calculation is the hours “reasonably expended on the litigation multiplied by a reasonable hourly rate”—often called the lodestar calculation. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

• The opposing party may challenge the reasonableness of the amount requested through affidavits and other evidence. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990); see also Smith v. Phila. Housing Auth., 107 F.3d 223, 225 (3d Cir.1997) (“A district court may not set attorneys’ fees based upon a generalized sense of what is customary or proper, but rather must rely upon the record.”).

• The district court has discretion to make adjustments in light of results obtained; for quality of representation; and to take account of the need to attract competent counsel. Rode, 892 F.2d at 1183–84.5 As to costs, a district court reviews a bill of costs de novo. In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 461 (3d Cir. 2000).

• Dillery v. City of Sandusky, 398 F.3d 562 (6th Cir. 2005) (Affirming district court’s denial of attorney’s fees in ADA action where Plaintiff only prevailed in proving an ADA violation that a prior Judge in a separate lawsuit had previously ordered repaired).

• Buckhannon v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 610 (2001) (rejecting “catalyst theory” as basis for recovery of fees and costs in ADA and FHAA cases).

• Access 4 All, Inc. v. Casa Marina Owner, LLC, 458 F.Supp.2d 1359, 1366 (S.D. Fla. 2006) (A voluntary decision to remedy any alleged barrier to access does not entitle Plaintiff to attorneys’ fees).

• Ward v. Philadelphia Parking Authority, 2015 WL 8124191 (3d Cir. December 8, 2015) (Disabled individuals were “prevailing party” in suit against city parking authority for violation of ADA and Rehabilitation Act, based on a taxicab transportation system that was not accessible to persons requiring or using wheelchairs, even though claims were resolved through consent decree).

• Gonzalez v. Riverrock Properties, LLC, No. 2:14-CV-2362-TLN-EFB, 2018 WL 1108745, at *4 (E.D. Cal. Mar. 1, 2018) - Hourly billing rate of $425 for plaintiff’s counsel that is the founding member of his law firm with 23 years of experience handling disability related issues is excessive. Judges in this district have recently found that $300 an hour is a more appropriate rate for the work performed by plaintiff’s counsel in cases similar to the instant case. See Johnson v. Swanson, 2:15–cv–215–TLN–DB, 2017 WL 3438735 (E.D. Cal. Aug. 10, 2017) (“[T]he Court finds $300 per hour is a reasonable rate for Mr. Potter.”); Johnson v. Wayside Property, Inc., 2:13–cv–1610–WBS–AC, 2014 WL 6634324, at * 8 (E.D. Cal. Nov. 21, 2014) (awarding Mr. Potter attorney’s fees at a rate of $300 an hour); The court finds these cases persuasive. Accordingly, plaintiff is entitled to receive $2,880 (9.6 x $300) in attorney’s fees.

• Arce v. Louisiana State, 299 F. Supp. 3d 810 (E.D. La. 2018) – court awarded costs but not attorneys’ fees (“Applying this approach to this case, the only type of judicially sanctioned relief that plaintiff pursued to a court-ordered resolution of her claims—indeed, the only type of relief that plaintiff herself had standing to pursue at all—was monetary relief. Thus, the Court concludes that “monetary relief [was] the primary objective of [the] lawsuit.” In a civil rights suit for damages,...the awarding of nominal damages [alone] ...highlights the plaintiff's failure to prove actual, compensable injury.” Farrar, 506 U.S. at 115, 113 S.Ct. 566. “When a plaintiff recovers only nominal damage because of [her] failure to prove an essential element of [her] claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. (internal citation omitted); see also Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 678 (5th Cir. 2015) (“[I]f a plaintiff recovers only nominal damages, the proper fee usually is none at all, even though the plaintiff has won his case.”). This is because, where “substantial fees are expended in pursuit of a remedy that is never achieved, an award of fees amounts to a windfall for the unsuccessful attorneys.” Grisham, 837 F.3d at 569. For these reasons, the Court will not award attorney's fees to plaintiff.)

• Private individuals may only request injunctive relief, in the form of remediation to stop discrimination, and reasonable attorneys’ fees. Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa. 2013); 42 U.S.C. § 12188(a) (providing that the remedies available to individuals shall be those set forth in 42 U.S.C. § 2000a 3(a), which allows a private right of action only for injunctive relief for violations of Title II of the Civil Rights Act of 1964); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (noting that Title II allows for injunctive relief only); Reviello v. Phila. Fed. Credit Union, 2012 WL 2196320 at *4 (E.D. Pa. June 14, 2012); 28 C.F.R. §§ 36.501, 36.505. Damages are not available to private plaintiff for violation of Americans with Disabilities Act’s (ADA) antidiscrimination provision; Congress has provided only for injunctive relief for violation of that provision. Civil Rights Act of 1964, § 204, 42 U.S.C.A. § 2000a–3; Americans with Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § 12182(a). A.R. v. Kogan, 964 F. Supp. 269, 23 A.D.D. 834 (N.D. Ill. 1997).

J. Fee Shifting

• Where the prevailing party is the defendant, rather than the plaintiff, a court may award fees only upon a finding that the plaintiff’s cause of action was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 420–21, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (applying Title VII’s fee-shifting provision).

• The Court of Appeals for the Third Circuit has not yet applied the rule established in Christiansburg to the ADA’s fee-shifting provision, other courts of appeals have. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001); Parker v. Sony Pictures Entm’t, Inc., 260 F.3d 100, 111 (2d Cir. 2001); Bercovitch v. Baldwin School, Inc., 191 F.3d 8, 11 (1st Cir. 1999); Bruce v. City of Gainsville,

Ga., 177 F.3d 949, 950–52 (11th Cir. 1999); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1232 (10th Cir. 1997).

• Courts have interpreted this to mean that only plaintiffs who bring frivolous claims are to be saddled with paying attorney’s fees to the defendant.” Hubbard v. SoBreck, LLC, 554 F.3d 742, 744 (9th Cir. 2009); Barley v. Fox Chase Cancer Center, 54 F. Supp. 3d 396 (E.D. Pa. 2014).

IX. Selected cases

• Doherty v. Colonial Williamsburg Foundation, 2019 WL 2306266 (4th Cir. May 31, 2019).

Plaintiff is a child with celiac disease who maintains a strict gluten free diet. He attempted to bring a homemade, gluten-free meal into a restaurant while on a school field trip to Colonial Williamsburg – the restaurant refused to let him and offered instead to prepare a gluten-free meal. The plaintiff declined and chose to eat his homemade meal outside the restaurant apart from the rest of his classmates. Plaintiff filed suit asserting claims that included Title III of the ADA, the District Court granted defendant’s Motion for Summary Judgment. The Circuit Court vacated the order for summary judgment and remanded. Plaintiff has genuine issues of material disputed fact. The Court held that “[w]e must “permit those who are disabled because of severe dietary restrictions to enjoy the protections of the ADA.” Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003).” Plaintiff has raised a genuine dispute of material fact as to whether he is disabled within the meaning of the ADA and whether the requested modifications were reasonable or would fundamentally alter the nature of the goods and services.

• Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018).

Removal of allegedly discriminatory architectural barriers at small office building would not be readily achievable, and thus building owner's failure to remove barriers did not violate Title III of Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA) provisions forbidding discrimination in construction of places of public accommodation, where installation of wheelchair accessible ramp would cost between $11,987 and $22,621, estimated cost to provide exterior accessible route to main entrance ramp was $35,000 from back of building and over $100,000 from front sidewalk, entry space was too small for wheelchair access, there was no elevator to restroom on second floor, and it would cost more than $300,000 to make entire building accessible.

• Thomas v. Kohl’s Corporation, No. 17-C-5857 (N.D. Ill. February 5, 2018) – plaintiff’s submission

of evidence that barrier removal is readily achievable precludes the entry of summary judgment.

• Mielo v. Steak ‘N Shake Operations, Inc., No. 15-cv-00180 (W.D. of Pa. March 25, 2019).

28 C.F.R. § 36.211 does not contain a requirement that a covered entity adopt a policy of identifying potential ADA violations such as the slope of the access aisles in its parking lots.

• Hillesheim v. Holiday Stationstores, Inc., 903 F.3d 786 (8th Cir. 2018).

Gas station store patron who used a wheelchair for mobility brought action in state court against operator of gas station chain, alleging discrimination under the ADA and related state statutes based on failure to provide a compliant handicap-accessible parking space at one location. Following operator's removal to federal court, and fixing alleged defect by flattening the access aisle to handicap-accessible parking space, first temporarily and later through remodeling the entire parking lot, the District Court granted operator's summary judgment motion, and denied patron's motion to strike affidavit of operator's vice president of engineering stating that operator had leveled access aisle during renovation of parking lot and that its intent was to comply with accessibility requirements. Patron appealed.

Voluntary cessation of a challenged practice does not necessarily moot a case. But “[a] case [may] become moot if subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation omitted). Making “structural changes such as [installing] ramps, pull and grab bars, and chair lifts” is the type of action that makes it absolutely clear that a defendant will be not be able “to resume [its] allegedly illegal conduct.” Hickman v. Missouri, 144 F.3d 1141, 1144 (8th Cir. 1998) (first quoting Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); and then quoting Allen v. Likins, 517 F.2d 532, 535 (8th Cir. 1975) ). There is no reason to believe that Holiday spent considerable time and money to renovate its parking lot only to change it back once this litigation is over. Holiday's changes, in other words, went far beyond “a mere voluntary cessation of alleged illegal conduct.” Id. The district court was therefore right to conclude that Hillesheim's ADA claim is moot

• Hernandez v. AutoZone, Inc., 323 F.R.D. 496 (E.D.N.Y. 2018).

Hernandez sued AutoZone on behalf of himself and others similarly situated under Title III of the ADA, 42 U.S.C. §§ 12182(a) and (b)(2)(A)(iv), claiming that (1) the parking lots and walkways at AutoZone stores were not accessible to individuals with disabilities, and (2) AutoZone's centralized policies regarding ADA compliance were inadequate to identify and remedy accessibility problems. He sought a declaration that AutoZone's facilities were not fully accessible in violation of the ADA and a permanent injunction directing AutoZone to (1) take all necessary steps to make its facilities ADA compliant, (2) change its corporate policies to ensure ongoing ADA compliance, and (3) directing Plaintiffs to monitor AutoZone facilities for satisfaction of such an injunction.

Hernandez moved to certify a class under Rule 23(b)(2) of “all persons with qualified mobility disabilities, who have visited or will visit any AutoZone store where Defendant AutoZone, Inc. owns, controls and/or operates the parking facility.” Pl.'s Mem. at 8.3 He seeks declaratory and injunctive relief on behalf of the class. Class granted.

• Mellenthin v. Casey's Gen. Stores, Inc., No. 17-CV-68-NJR-SCW, 2018 WL 999131, at *4 (S.D. Ill. Feb. 21, 2018) – plaintiff’s claims not barred by prior settlement and consent order.

X. Service Animals

• Service animals are defined “[a]ny dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” 28 C.F.R. § 36.104.

• The work or task a service dog does must be directly related to the person's disability. Service dogs

may accompany persons with disabilities into places that the public normally goes. This includes state and local government buildings, businesses open to the public, public transportation, and non-profit organizations open to the public.

• In addition to the provisions about service dogs, the Department’s revised ADA regulations have a

new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000029538&pubNum=0000780&originatingDoc=I9e7b6db0b5b411e8afcec29e181e0751&refType=RP&fi=co_pp_sp_780_189&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_780_189







https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000547&cite=28CFRS36.104&originatingDoc=I25054c606b0a11e99d608a2f8658c0b8&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

• Benjamin Thomas v. University of South Florida, No. 8:19-CV-55-T-36AAS, 2019 WL 2452825, at *3–4 (M.D. Fla. June 12, 2019). Motion to Dismiss granted when plaintiff failed to allege that his service animal was under his control in the covered entity.

Regulations related to service animals require such animals to be under a handler’s control:

A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means). 28 C.F.R. § 35.136(d) (emphasis added).

In the absence of the service animal being under the handler’s control, a “public entity may ask an individual with a disability to remove a service animal from the premises.” Id. § 35.136(b).

• Plasma Center’s policy not to accept donors whose anxiety was severe enough to require the use of a service animal was not a violation of the ADA as a plasma center is not a place of public accommodation. Silguero v. CSL Plasma, Inc., 907 F.3d 323, 329 (5th Cir. 018), certified question accepted (Oct. 26, 2018) but see Matheis v. CSL Plasma, Inc., 346 F. Supp. 3d 723, 730 (M.D. Pa. 2018) a plasma center is a place of public accommodation.

Process and Verification • In situations where it is not obvious that a dog is a service animal, a public accommodation may

ask only two specific questions:

(1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?

• A public accommodation representative is not allowed to:

o request any documentation

o require that the dog demonstrate its task

o inquire about the nature of the person's disability

• Professional training is not required

See Appendix B; Frequently Asked Questions Regarding Service Animals and Appendix C; Service Animals

XI. Direct Threat Exception

• The ADA does not require a covered entity to extend its public accommodations to a disabled individual if doing so would pose a direct threat or significant risk of substantial harm to the health or safety of others. 42 U.S.C.A. § 12182(a); 29 C.F.R. § 36.208; 29 C.F.R. § 1630.2(r).

• Known as the “direct threat” exception to the ADA, a direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services”. 42 U.S.C. §12182(b)(3); 28 C.F.R. §36.208(b).

• In determining if there is a direct threat, a property owner must make an individual assessment, including several listed factors. The ADA Technical Assistant Manual provides:

III-3.8000 Direct threat. A public accommodation may exclude an individual with a disability from participation in an activity, if that individual's participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation's policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine:

1) The nature, duration, and severity of the risk; 2) The probability that the potential injury will actually occur; and

3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

28 C.F.R. §36.208(c); ADA Technical Assistance Manual III-3.8000; Americans with Disabilities Act of 1990, § 302(b)(3)

• See Bragdon v. Abbott, 524 U.S. 624, 648-651 (1998); Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998) (opinion on remand); Anderson v. Little League Baseball, Inc., 794 F. Supp. 342, 345 (D.Ariz.1992); Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003) (decided under Title I, and holding that defendant must establish a direct threat based on reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence).

• Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.

ILLUSTRATION: Refusal to admit an individual to a restaurant because he or she is infected with HIV would be a violation, because the HIV virus cannot be transmitted through casual contact, such as that among restaurant patrons.

ADA Technical Assistance Manual, Section III – 3.8.

• The test for the existence of a “direct threat” under the ADA is an objective one, and a covered entity cannot successfully contradict an achieved consensus that a particular disability is not a direct threat simply by proffering unsupported opinion; the direct threat defense may not be used to mask prejudice or unfounded fears, opposing views must be documented by competent countervailing evidence that is directly relevant, and speculative inferences, glancing statistics, unsupported conclusions, and ruminative surmise will not serve. Americans with Disabilities Act of 1990, § 302(b)(3), 42 U.S.C.A. § 12182(b)(3); 28 C.F.R. Part 36, App. B, § 36.208; Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), certiorari granted in part 118 S.Ct. 554, 522 U.S. 991, 139 L.Ed.2d 396, vacated 118 S.Ct. 2196, 524 U.S. 624, 141 L.Ed.2d 540, on remand 163 F.3d 87

• A “direct threat” exists when there is a “significant risk to the health or safety of others that cannot

be eliminated by a modification of polices, practices, or procedures or by the provision of auxiliary aids or services.” 42 U.S.C. § 12182(a).

• As the Supreme Court has stated, the exception can only be invoked where a risk is significant: “[b]ecause few, if any, activities in life are risk free ... the ADA do[es] not ask whether a risk exists, but whether it is significant.” Thus, courts and entities deciding whether to exclude the disabled must rely on evidence that “assess[es] the level of risk” for the “question under the statute is one of statistical likelihood.” Bragdon, 524 U.S. at 649, 118 S.Ct. 2196.

XII. Digital Accessibility

A. Grounds for 14 pro-defense decisions in 2018:

– No standing because P can’t become member of credit union he has sued for having inaccessible website (i.e., no injury) (EDVA, NDOH)

– No standing to sue about website because insufficient allegations that P intends to visit physical location. (WDVA, MDFL, EDPA, SDFL, NDIL) (some courts said “dignitary harm” is not enough)

– Failure to state a claim because insufficient allegations that barriers on website impeded access to physical location; not being able to get information is not enough (MDFL)

– No personal jurisdiction over defendant (DMASS)

– 1 case from SDTX (Zaid v. Smart Financial) holding that “a website is not a place of public accommodation,” citing 5th Cir. decision in McGee v. Coca Cola where a vending machine was held not to be a place of public accommodation.

B. Grounds for pro-plaintiff decisions in 2018:

– On 12(b)(6) motions:

• Holding defendants liable for inaccessible website does not violate due process, and doctrine of primary jurisdiction does not apply (9th Cir. and all other courts to consider arguments)

• P has pled sufficient nexus between website and physical place of public accommodation (MDMI, NDOH, 11th Cir.)

– On 12(b)(1) motion:

• Not being able to use the website is sufficient injury for standing, even if P can never actually use the services of the public accommodation (NDGA, EDMI)

C. Key 9th Circuit decisions in website accessibility cases

– Cullen v. Netflix & Earll v. Ebay (2015):

• Motion to dismiss upheld

• Website with no nexus to a physical place is not a public accommodation under the ADA

– Robles v. Domino’s (2019):

• ADA covers website and mobile apps that have nexus to physical place

• Rejects due process/primary jurisdiction arguments

• Telephone service as an alternative could not be decided on motion to dismiss.

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998132143&pubNum=708&originatingDoc=Ie842200c79a611d99c4dbb2f0352441d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

D. Key 11th Circuit decisions in website accessibility cases

– Haynes v. Hooters (2018)

• Case dismissed by district court based on prior settlement with another plaintiff; reversed by 11th Circuit;

• Hooters was only in process of making website accessible so case was not moot;

• Relief asked for by Plaintiff not covered by agreement, including request for order directing hooters to “continually update and maintain” website in accessible manner;

• P was not a party to prior agreement and could not enforce it.

– Haynes v. Dunkin Donuts (2018)

• Reverses district court dismissal of case;

• Plaintiff sufficiently alleged that the barriers on the website prevented him from accessing the services available in a physical store.

E. Two federal judgments in website accessibility cases:

– Gomez v. Winn Dixie (SDFL 2017) (appeal pending)

• Bench trial verdict for plaintiff

• 3-year Injunction issued requiring:

• Accessible website by 12/1/17(WCAG 2.0 AA)

• Annual training for employees on website accessibility

• Require third party content to be accessible

• Adopt web accessibility policy by 12/1/17

• Fees/costs totaling $105,271 awarded to plaintiff

– Gomez v. GNC (SDFL 2018)

• Summary judgment granted for plaintiff on merits after expert reports submitted

• Court finds inaccessible website violates ADA

• No injunction issued as parties agree to stay case pending appeal in Winn Dixie

F. Two CA state court judgments in website accessibility cases:

– Davis v. BMI/BND Travelware (CA State court 2016)

• Summary judgment against retailer granted

• Inaccessible website discriminates against blind customer under Unruh Act

– Thurston v. Midvale Corp d/b/a Whisper Lounge (CA State court 2018)

• Summary judgment against restaurant granted

• Inaccessible website discriminates against blind customer under Unruh Act

• Court orders restaurant to make website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA

• Restaurant to pay $4,000 statutory damages

– Definition

• “Mobile” is a generic term for a broad range of wireless devices and applications that are easy to carry and use in a wide variety of settings

• E.g., Phones, tablets, “wearables,” other mobile devices

– Built-In Assistive Use Features in IOS/Android Devices

– “App-Only” Demand Letters

• Per App Exposure

– Lawsuits

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