Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada

I have been blogging since December 2011. In all that time, with the exception of a winter break, I have never taken two weeks off. I do have a reason for doing so here. First, we had Labor Day weekend and then working with co-counsel, David Llewellyn, we had to move things to file a complaint in the case of Stian v. Atlanta Medical Center Inc. and Anthony E. Barnes M.D. in Fulton County Superior Court involving culturally deaf plaintiffs where we allege both the failure to obtain consent (medical malpractice), and the failure to provide effective communications per this case due to the failure to provide an ASL interpreter. Second, we had hurricane Irma hit Atlanta at the beginning of this week. We are all okay here. Several big trees fell down around us, and we lost power for 34 hours, but nothing beyond that. Cars are okay. Then, at the end of the week, Robin Shea and I presented to the Federal Bar Association at their national convention here in Atlanta on ADA hot issues: the labor and employment law version. At that presentation, we covered: pregnancy and the ADA; mandatory reassignment; can you get compensatory and punitive damages in ADA retaliation cases; marijuana in the workplace; and the decision throwing out the EEOC wellness plans. So, the week was insane. It was fabulous to finally meet Robin, whom I had never met before except in cyberspace.

So now I am back to blogging. In deciding what to blog on week to week, one of the factors that I consider is whether a fellow blogger has blogged on it. If they have, can I put a different spin on it? If not, I let it go and blog on something else. For example, Robin Shea on her blog, blogged on the case throwing out the EEOC wellness plans. Her blog was so comprehensive and so well done, that I didn’t think I could add anything to it. That blog entry can be found here. There are other times where a blog entry appears, and I believe I can add a different perspective to it. The blog entry of this week is one of those situations. My colleague, Richard Hunt, recently blogged here on the case of Civil Rights Education and Enforcement Center v. Hospitality Properties Trust. After reading his very provocative blog entry, I thought I could add a different perspective to it. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning standing; court’s reasoning REIT class action; concurring and dissenting opinion’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Hospitality Properties Trust (HPT) is a real estate investment trust (REIT in the vernacular), owning hotels across the United States. Real estate investment trusts are where investors own a fraction of a group of real estate holdings. They are exempt from taxation on corporate profits. That is, shareholders are taxed only when they receive dividends. To avoid taxation at the corporate level, real estate investment trusts, among other things, must remain passive investors and delegate the management of particular facilities. The plaintiffs are all persons with disabilities using wheelchairs. Each phoned an HPT owned hotel located in her state of residence that provided free local shuttle services and each one was informed that the hotel at issue did not provide equivalent shuttle service for people with mobility impairments. Each person alleged that they would have stayed at the hotel they called but for its failure to provide equivalent shuttle service. Each person also alleged that they intended to stay at the hotel, but the hotel’s failure to provide equivalent shuttle service deterred them from doing so at present. The plaintiff filed a class action against HPT alleging that HPT failed to offer equivalent accessible transportation services at its hotel in violation of title III of the ADA. Plaintiffs alleged that while most HPT hotels provide some form of free local transportation service, very few of those hotels provide equivalent service accessible to people using wheelchairs or scooters for mobility.

II

Issues Presented

1. Can a plaintiff rely on the deterrent effect doctrine in order to establish constitutional standing under the ADA where the plaintiff lacks first-hand knowledge that an establishment is not in ADA compliance?
2. Does a plaintiff have constitutional standing where her only motivation for visiting the facility is to test for ADA compliance?
3. Do real estate investment trusts by their very nature get a pass on ADA compliance, particularly with respect to class action litigation?

III

Holdings

1. Yes
2. Yes
3. Yes

 

IV

Court’s Reasoning Standing

1. A plaintiff experiences continuing adverse effects where a defendant’s failure to comply with the ADA deters her from making use of the defendant’s facility.
2. The harm a plaintiff faces is concrete and particularized with respect to their intent to visit the hotels once they are notified that there is not equivalent shuttle service for persons with disabilities.
3. Actually visiting a hotel, as opposed to phoning, does not make a plaintiff’s injury anymore concrete. In either event, a plaintiff is deterred from using the accommodation. It is the plaintiff’s actual knowledge of a barrier, rather than the source of that knowledge, that is determinative.
4. While past actions may constitute evidence bearing on whether there is a real and immediate threat of repeated injury, that is not necessarily dispositive evidence. For instance, evidence of concrete travel plans would be sufficient to show that a plaintiff with a disability intends to visit the facility even if she has not traveled there in the past.
5. Requiring a plaintiff to personally encounter barriers also causes line drawing problems. Would it be enough to travel to the hotel and ask the concierge whether the hotel’s shuttle service accommodates a person with a disability or must a plaintiff actually attempt to use the purportedly deficient accommodation? If the concierge says there is no accommodation, must the plaintiff perform a visual inspection or review schedules to verify this?
6. Making case-by-case determinations about whether a particular plaintiff’s injury is imminent is well within the competency of the District Courts.
7. Under the ADA, once a plaintiff has actually become aware of discriminatory conditions existing at a public accommodation thereby deterring him or her from visiting or patronizing that accommodation, the plaintiff has suffered an injury. That injury continues so long as equivalent access is denied.
8. Interpreting the ADA to exclude testers from enforcing the right to be free from discrimination would undermine the specific intent of the ADA.
9. Relying on a case from the 11^th Circuit, Houston v. Murad Supermarkets, Inc., 733 F.3d 1323 (11^th 2013), the court said: 1) nothing in the text of title II of the ADA constrains the statutorily created right to be free from disability discrimination in the enjoyment of a facility based upon a plaintiff’s motive for assessing the facility; 2) 42 U.S.C. §12182(a) specifically states that no individual shall be discriminated against on the basis of disability, which is similar to the Fair Housing Act language; 3) 42 U.S.C. §12188 provide that any person subject to discrimination on the basis of disability may bring suit; and 4) Congress knows how to limit standing to sue under discrimination statutes to certain groups of people and has done so in various other statutes, but chose not to do so in 42 U.S.C. §12182(a). Accordingly, a tester does have the right to sue for injunctive relief under 42 U.S.C. §12182(a).
10. The 10^th Circuit has also held tester standing is viable under title III of the ADA in this case. The 10^th Circuit said that title III provides remedies for any person subject to illegal disability discrimination. Therefore, it concluded that anyone suffering an invasion of legal interest protected by title III may have standing regardless of his or her motivation in encountering that invasion.
11. The proper focus in determining jurisdiction are the facts existing at the time the complaint under consideration is filed.

V

Court’s Reasoning REIT Class Action

1. To get class certification, a party has to show the requirements of federal Rules of Civil Procedure 23(a) are satisfied, which are: 1) joinder of all members is impracticable; 2) questions of law or fact are common to the class; 3) the named plaintiffs claims or defenses are typical of those of the class; and 4) representative parties will fairly and adequately protect the interests of the class. Once that is done, then a party has to satisfy one of three requirements of rule 23(b). With respect to rule 23(b), plaintiff relied on claiming that the party opposing the class had acted or refused to act on grounds that apply generally to the class so that final injunctive relief would be appropriate respecting the class as a whole.
2. HPT does not itself operate the hotels. Rather, HPT utilizes various professional management companies as eligible independent contractors to operate the hotel it owns. Eligible independent contractors are a person or corporation actively engaged in the trade or business of operating qualified lodging facilities and that does not control more than 35% of the real estate investment trust’s shares or voting powers.
3. While HPT’s agreement with management companies required eligible independent contractors to comply with all laws in their fulfillment of their management agreement obligations, those agreements also stipulated that the management companies have sole, exclusive, and uninterrupted control over the operation of the hotels.
4. HPT does not set or provide the management companies with any uniform policy or plan regarding the operation of shuttle or transportation services at its hotels. Accordingly, it is the management companies and not HPT that decide whether to offer local transportation services and the terms for which those services operate.
5. According to HPT’s website, it’s 500 hotels are operated by six eligible independent contracting firms, such as but not limited to Wyndham and Hyatt.
6. Presumably, the managers maintaining control over the properties they have contracted to manage, could themselves be named as defendants in separate class actions, and could ultimately be held responsible for any discriminatory practices.
7. The District Court correctly found that HPT did not have a policy regarding how its eligible independent contractors had to comply with the ADA. In fact, individual hotel practices were all over the place.
8. HPT has done nothing to discourage its contractors from complying with the ADA since HPT’s contracts require hotel to operate in compliance with applicable federal and state laws. Such a contractual term is a policy of delegation and not of noncompliance.
9. There is no evidence of a single general policy of discrimination that could serve as a common issue.
10. The concept of a nondelegable duty does not mean that an actor cannot delegate an activity to an independent contractor.
11. Even if HPT would be vicariously liable for ADA violations by contractors, that by itself but not bear on commonality for purposes of class action certification since that only creates a common issue as to where the financial burden of liability falls and not a common issue regarding liability. There is also no common policy or practice.
12. While intentional noncompliance would amount to an unofficial policy of discrimination weighing in favor of class certification, a policy against having uniform practices is not a common issue for class certification purposes.
13. It simply doesn’t make sense to say that firms will violate the ADA rather than comply with it so long as they can avoid class-action suits.
14. Whatever incentive to sue under the ADA, the class action rules do not require HPT to manage its properties in a manner facilitating class actions if and when ADA violations occur.

V

Reasoning of Concurring and Dissenting Opinion

Judge Morris agreed that the deterrent effect doctrine applied and that testers have standing, but he dissented from the conclusion that HPT could escape ADA liability and he reasoned as follows:

1. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of accommodations by any person owning, leasing (or leases to), or operating a place of public accommodation.
2. Congress made no distinction whether the owner was a natural person, a partnership, a corporation, a real estate investment trust, or any other type of structure allowed under the law. Rather, Congress just outlawed discrimination on the basis of disability.
3. The majority’s conclusion permits HPT to avoid for all practical purposes the consequences of the ADA. By this decision, plaintiffs and other advocates of people with disabilities will now be required to seek equal treatment one hotel at a time. HPT’s decision to establish a real estate investment trust as its preferred ownership structure should not shield HPT from its alleged systematic effort to abate the equivalent transportation requirements of the ADA.
4. In civil rights litigation, plaintiff’s satisfy the commonality requirement where the lawsuit challenges a systemwide practice or policy affecting all of the putative class members.
5. Plaintiffs all suffer from similar harm based upon HPT’s failure to accommodate their disability as required by the ADA. Whether one hotel provides no van service for people with mobility impairments while another hotel charges extra for van service, is irrelevant to the issue of class certification. Instead, what should drive the analysis is whether all of the putative class members suffer from the failure of HPT’s hotels to accommodate their disability as required by the ADA.
6. Precedent does support class certification where you have shared legal issues with diverse factual predicates.
7. The shared legal issue of the denial of equivalent transportation in violation of the ADA satisfies the commonality requirement.

VII

Takeaways

1. Phoning and being told that a place of public accommodation is not accessible for a person with a disability is very real. In fact, this almost happened to me yesterday. I am going to a bar convention in a different part of the country. As everyone knows, I am deaf but function entirely in the hearing world thanks to lip reading and very advanced powerful hearing aids. However, when I travel alone (my wife is hearing), at night I am a deaf person. That means I need a room that is accessible to the deaf. Being accessible means a kit they can then install into a room. I am perfectly mobile. Also, I am a bit clumsy and not all that great in space. That means a hotel room with grab bars and all these other things that are needed for a mobility impaired person actually gets in my way. There is also the taking away of the room from someone with a mobility impairment when it is simply not necessary. Finally, it also smacks of unnecessary segregation. So, whenever I go on one of these trips, I always reserve a room with the hotel directly. Yesterday, I spent quite a time back and forth trying to explain to the hotel reservation person that I needed a deaf accessible room and had no interest in a room for people with mobility impairments. The person on the other end said that I had no choice but to use a mobility impaired accessible room, which would also be accessible to a deaf person. I tried to explain that all they needed was a kit and there was no need for me to be in a room reserved for people with mobility impairments. The person resisted, and I finally asked to speak to a manager. She then got on the phone with their engineering staff and found out, as I already knew, that all they needed was a kit and that they could put me in any room. I have to tell you I came very very close to saying forget about it and not staying there. It amazes me how these high-end hotels simply do not get deaf accessibility 25 years after the ADA went into effect. If I had to choose another hotel if the person did not back down, I most certainly would have been injured even though I never actually visited the hotel. So, I certainly get the court’s point that an injury can be had when a person on the other end of the line assures that individual that they would not be accessible to a person with a disability.
2. The majority opinion works as such where I agree with the dissent that real estate investment trusts by their very definition no longer have to worry about complying with the ADA under this decision. I also do not entirely buy that this is a delegation. Seems to me, the facts of this situation are that they are transferring the obligation to comply with the ADA onto someone else. Finally, this decision gives real estate investment trusts absolutely no incentive to train their independent contractors on their ADA compliance obligations.
3. I also agree that requiring a plaintiff to personally encounter a barrier does indeed cause line drawing problems.
4. As the court mentioned, this is not the first case to say that testers have standing under the ADA. For instance, we discussed tester standing in this blog entry.
5. While real estate investment trusts are off the hook for ADA liability, the independent contractors themselves are certainly not.
6. I don’t think the Nevada Supreme Court, for example, would agree with the majority decision regarding the obligations of the real estate investment trust with respect to the ADA (See this blog entry). So, be sure to check your jurisdiction.
7. One could argue that this decision goes beyond the case discussed in this blog entry. In that case, also from the Ninth Circuit, ADA compliance was allowed to be delegated. However, here an argument exists that ADA compliance is not just being delegated but transferred.
8. I understand how Richard could say that telephoning means trolling for dollars. However, as I mentioned above, the harm from being rejected over the phone on the basis of disability is quite real. Perhaps, a compromise could be reached in the intent to return part of the analysis. For example, is there anything else besides the telephone call indicating an intent to return or show up at that place? For example, in my case, I had already registered for the conference and booked airfare. In other words, assessing whether the allegations of intent to return go beyond boilerplate claims.
9. How much do you want to bet that when I get to the hotel it will still be an adventure in getting the kit set up in the room? If I were you, I wouldn’t take that bet:-)
10. This case does not rule out class actions against individual properties or against the eligible independent contractors.