Legal Update: July 2021

Ah, July in Seattle is a special experience! Warm sunny days with little humidity. The sun sparkling on Lake Washington with Mount Rainier in the background. Frankly, at this time of year, there is no place in the world I would rather be. And July always feels like such a patriotic month as it starts off with the Fourth of July holiday. And nothing could be more American than some good ole, American-style litigation, right? But it is still July, after all, and litigation has been relatively light; even litigants seem like they'd rather spend a day in the park instead of a day in court.

Still More Hotel Cases

Last month, I talked about how my Lexis feed for the month was stuffed with hotel reservation cases-- and this month is no different. In general, there's a theme to almost every one of these cases-- if a hotel claims that a room is "accessible" that's good enough and no other descriptions are needed. Arroyo v. Phi Assocs., L.P., 2021 U.S. Dist. LEXIS 142792 (N.D. Cal. July 30, 2021); Johnson v. Garden Court Inn LLC, 2021 U.S. Dist. LEXIS 142111 (N.D. Cal. July 29, 2021); Marquez v. Hb, 2021 U.S. Dist. LEXIS 142251 (C.D. Cal. July 29, 2021); Love v. CHSP TRS San Francisco LLC, 2021 U.S. Dist. LEXIS 138951 (N.D. Cal. July 26, 2021); Love v. FYI MC, LLC, 2021 U.S. Dist. LEXIS 129399 (N.D. Cal. July 12, 2021); Garcia v. Bhakta, 2021 U.S. Dist. LEXIS 126559 (C.D. Cal. July 7, 2021); Arroyo v. Ashford Newark LP, 2021 U.S. Dist. LEXIS 123688 (N.D. Cal. July 1, 2021); Arroyo v. Huskies Owner LLC, 2021 U.S. Dist. LEXIS 123687 (N.D. Cal. July 1, 2021); Arroyo v. IA Lodging Santa Clara, 2021 U.S. Dist. LEXIS 126806 (N.D. Cal. July 1, 2021); Lindsay v. Shree Enter., LLC, 2021 U.S. Dist. LEXIS 123753 (E.D. Cal. July 1, 2021); Love v. Royal Pac. Motel, 2021 U.S. Dist. LEXIS 365312 (N.D. Cal. July 1, 2021). Granted, every single one of these cases is from California but other courts seem to follow the same rule: if you're suing a relative modern hotel and they claim that their rooms are "accessible," that's pretty much good enough because "accessible" means built in conformance with the ADA Standards for Accessible Design.

This same logic doesn't necessarily apply for older hotels, however. This came up in Barajas v. Ashford TRS Walnut Creek LLC, 2021 U.S. Dist. LEXIS 123587 (N.D. Cal. July 1, 2021). I think it's ironic that, last month, I predicted we may see litigation by plaintiffs who visited hotels after reading the (inaccurate) room descriptions offered by hotels-- and that's pretty much exactly what happen in the Barajas case.

Under the DOJ Guidance, a hotel not compliant with the 1991 Standards must provide more information than the Hotel's website provides. Barajas alleges that the Hotel's website fails to describe its accessible features sufficiently for wheelchair users to assess whether a room would be accessible for them. The website provides a list of all available accessible features within the Hotel, but these features are not guaranteed to be present in a given "accessible" room. Similarly, though the website includes a description of a specific accessible room, mentions a roll-in shower, and contains an image of an accessible shower, the webpage includes a warning that the image may not "reflect the specific accessible room type or room feature." The website notes the existence of accessible routes and entrances, but does not describe them or any features that are not in compliance with the ADA standards, including the violations that Barajas alleges. Therefore, Barajas has sufficiently pleaded that the website violates the ADA.

Id. at *21-22. It appears that, while older hotels don't require a full accessibility survey, they should offer a clear understanding of the rooms that are "accessible" and whether there are barriers in such rooms (and the path of travel to them) that fail to comply with the ADA Standards for Accessible Design.

ADA Title III Requires a Place of Public Accommodation

The two remaining cases for July may be relatively boring for an ADA attorney but still very interesting for anyone else. First, a short review. In order to be liable under Title III of the ADA, your business needs to "place of public accommodation." We generally think of "places of public accommodation" as any business that provides goods and services to the public but the formal definition is a little different. Specifically, your business needs to fall within one of the following twelve broad categories of businesses:

  1. Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
  2. Establishments serving food or drink (e.g. , restaurants and bars);
  3. Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);
  4. Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
  5. Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
  6. Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
  7. Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
  8. Places of public display or collection (e.g. , museums, libraries, galleries);
  9. Places of recreation (e.g. , parks, zoos, amusement parks);
  10. Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
  11. Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
  12. Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

If you don't fall into one of these twelve categories, it's game over and you can't bring a case under the ADA.

In Suris v. Gannett Co., 2021 U.S. Dist. LEXIS 131341 (E.D.N.Y. July 14, 2021), Yaroslav Suris sued USA Today claiming that the newspaper failed to caption videos on its website. Early in the litigation, the court dismissed the case, finding that USA Today's website was not a place of public accommodation.

are not a place of exhibition and entertainment like that of "a motion picture house, theater, concert hall, [or] stadium." See 42 U.S.C. § 12181(7)(C). Nor are they a place of recreation like that of "a park, zoo, [or] amusement park." See id. at § 12181(7)(I). And they are by no means a service establishment like that of "a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or [*5] lawyer, pharmacy, insurance office, professional office of a health care provider, [or] hospital." See id. at § 12181(7)(F). Neither a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA.

Id at *4-5. This may seem like a terrible result to disability advocates because news sites, like that of USA Today, are critical avenues of information-- particularly during a national emergency like COVID-19. But, while that may be true, the ADA never reached beyond the 12 categories of places of public accommodation and one of the threshold issues is convincing the court that the organization you're suing falls into one of those 12 categories.

But even if you think you don't fall within one of the 12 categories doesn't mean that you can let down your guard and assume that you'll easily get out of the lawsuit. In Langer v. Interval Int'l, Inc., 2021 U.S. Dist. LEXIS 124470 (N.D. Cal. July 2, 2021), Chris Langer alleged that he could not access the uncaptioned video content on the website of Interval, which was in the business of renting timeshare vacations. The defendant moved to dismiss the complaint because it operate no physical place of public accommodation (it also owned none of the properties listed on its site) but only offered as evidence statements that were available on the Interval site. So, even if the defendant wasn't a place of public accommodation, the court denied the motion to dismiss.


Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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