Today’s case of the day deals with two questions. First, just how does association standing work? Second, what is the burden of proof when it comes to figuring out whether something is readily achievable per title III of the ADA?
The case is Schalamar Creek Mobile Homeowners Association, Inc. v. Adler decided by the 11th Circuit on May 7, 2021, here185188199200. It is an unpublished decision. So, check your jurisdiction on how persuasive the decision might be. As usual the blog entry is divided into categories, and they are: facts; association standing; burden of proof readily achievable; and thought/takeaways. Of course, the reader is free to focus on any or all of the sections.
Schalamar Creek is a mobile home community located in Polk County, Florida, designed for adults fifty-five or older. Like many mobile home parks, Schalamar Creek offers amenities for its residents. It has a golf course, a driving range, several pools, a lounge, and a clubhouse. The clubhouse, built in 1989, is a three-story building with its own amenities. There is a restaurant on the first floor. On the second floor, there is a large event space and a bank. The rent deposit box is also located on the second floor. The third floor houses offices for Schalamar Creek’s management. The golf course, driving range, restaurant, bank, and lounge are open to the public.
Plaintiff’s filed a RICO claim as well as an ADA claim. We are not going to worry about the RICO claim, which takes up a large part of the opinion. Instead, we are going to focus on the ADA side. The defendants argued that the homeowners association (HOA) did not have standing. They also argued that the HOA did not meet its burden of proof with respect to readily achievable. Therefore, the summary judgment for the defense should stand.
The 11th Circuit, as discussed below, winds up disagreeing with the lower court on standing but agreeing with the lower court on the burden of proof of readily achievable not being satisfied by the plaintiff.
- An association has standing to bring suit on behalf of its members when: 1) its members otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
- In the 11th Circuit, organizational plaintiff’s only have to establish that at least one member faces a realistic danger of suffering an injury.
- The ADA confers on any person the right to be free from discrimination on the basis of disability with respect to the full and equal enjoyment of facilities. That right is violated when an individual encounters architectural barriers that discriminate against him on the basis of his or her disability. So, an individual encountering architectural barriers has suffered injury precisely in the form the statute was intended to guard against.
- Several members of the HOA are persons with disabilities who testified they had difficulty accessing the common areas due to their disabilities.
- The HOA also specifically identified barriers at the clubhouse that made it inaccessible to residents with mobility, balance, gait, vision, and hearing difficulties, including by way of example the lack of an elevator and inaccessible configuration of the clubhouse bathrooms.
- Whether the claim is germane to the Association is an undemanding standard that simply requires mere pertinence between the litigation at issue and the organization’s purpose.
- Florida Rules of Civil Procedure 1.222 gives the HOA the authority to act as a class representative and bring suits in the name and on behalf of all Association members concerning matters of common interest of its members. Common interest to the members include such things as common property and structural components of a building or other improvements.
- Florida law also designate the HOA as the representative of all the mobile homeowners in all matters relating to the mobile home act regardless of whether the homeowner is a member of the Association.
- Residence of the mobile home park have an interest in making sure that the clubhouse is accessible and compliant with the ADA.
- The Florida mobile home act give the HOA the right input to institute certain claims when only a majority of members vote in favor and does not require complete commonality.
Burden of Proof Readily Achievable
- When it comes to the burden of proof for figuring out whether something is readily achievable in the 11th Circuit, it works like this: 1) plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable, i.e. easily accomplishable and able to be carried out with much difficulty or expense; 2) plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the costs of implementation, and the economic operation of the facility; and 3) once plaintiff has met its burden of production, it is the defendant with the burden of persuasion.
- The clubhouse predates the ADA. Although the complaint identified deficiencies with the clubhouse, the HOA presented no summary judgment evidence that any of the proposed modification were readily achievable. Instead, the HOA chose to rely on the allegations in the complaint.
- The HOA did not put forth any specific evidence about the feasibility of their proposals, the estimated costs associated with them, or the defendant’s ability to pay those costs.
- From reading this case, Association standing does not appear to be all that difficult to obtain in the 11th Circuit.
- Whether a claim is germane to the Association is not a demanding one.
- The leading case on proving up readily achievable is Colorado Cross Disability Coalition v. Hermanson Family, here186189200201. That case has been cited over 142 times. You want to check your jurisdiction because how that case plays out varies from place to place. For example, we discussed the way one jurisdiction looked at that case in a previous blog entry, here187190201202.
- All the cases agree that readily achievable is an affirmative defense. That is, the defendant has the burden of persuasion. However, it is the plaintiff with the burden of production. What that burden of production is will also vary from place to place. You do want to check out the concurring and dissenting opinion in the Colorado Cross Disability Coalition v. Hermanson Family case, especially if you are on the plaintiff’s side.
- This was an unpublished decision.
- This is also a summary judgment case and not a motion to dismiss. The distinction is important because there is a difference between what might get by a motion to dismiss and what gets by summary judgment. After reading this case, the question in my mind is whether the two will not bleed together. That is, will courts start requiring greater specificity with respect to any costs of fixing the architectural barriers when considering a motion to dismiss? They just might because these things do bleed into each other oftentimes.
- Assuming you can get by a motion to dismiss if you are on the plaintiff side, you definitely want to hire an accessibility specialist (Texas and California actually have certification for such specialists), to evaluate the property. Make sure that accessibility specialist discusses what it would cost to fix the architectural barriers. On the defense side, you are going to want to read this blog entry188191202203. You also going to want to hire an accessibility specialist as well as knowledgeable ADA legal counsel to help sort out just what are your legal obligations with respect to fixing the architectural barriers, which will likely mean certain barriers that you’re going to want to fix right away and other barriers that can be prioritized. Knowledgeable ADA counsel can help you figure out which of the barriers must be fixed right away and which can be prioritized.
- On the plaintiff side, there are strategies you can use to make your burden of production easier. For example, you can ask the defense in an interrogatory if they plan to use an undue burden and/or readily achievable defense. If so, ask them to supply their financials. That puts them in the box of having to reveal their financials if they are going to go with the readily achievable and/or undue burden defense. Remember, the readily achievable defense only applies to existing facilities and portions thereof that were built before the ADA went into effect. The number of such facilities is of course decreasing all the time considering the years that have gone by since the ADA was enacted. Circuit