Slide 1:
Welcome to the 2009 
Legal Issues Webinar Series
The content and materials of this training are property of the DBTAC: Great Lakes ADA Center and cannot be distributed without permission.  This training is develop under NIDRR grant #H133A060097. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at cdiaz3@uic.edu or toll free (800)949-4232 (V/TTY).

Slide 2:
Legal Update on Title III Case Law: 
Title III ADA Hot Topics

			     Presented by: 
			     Barry C. Taylor, Legal Advocacy Director,
			     Alan Goldstein, Senior Attorney
			     Equip for Equality 

Equip for Equality is providing this information under a subcontract with the DBTAC: Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability Rehabilitation and Research 	Award No. H133A060097. 

Slide 3:
Webinar Outline
•	Title III Overview
•	Pre-Litigation Notice
•	Standing to Sue 
•	Readily Achievable Barrier Removal
•	Website Access
•	Communication Access in Health care and Fast Food
•	Movie Theater Access
•	Emergency Preparedness
•	Service Animals
•	Post-Secondary Education & Licensing Accommodations
•	Enforcement
•	Resources for future reference

Slide 4:
Title III Overview

Slide 5:
Title III Statue and Regulations
•	 No discrimination in “full and equal enjoyment” of goods, services, facilities, privileges…, or accommodations...” 
•	 Prohibits “eligibility criteria that screen out or tend to screen out...”
•	 Reasonable modifications absent “fundamental alteration.”
•	 Auxiliary aids & services required absent “fundamental  alteration” or “undue burden” (significant difficulty or expense). 
•	 Prohibited Discrimination may include:  Denial of participation, unequal benefits, or separate benefits.
•	 Note: Title III regulations are being revised.
42 U.S.C. §§ 12182(a), (b); 28 C.F.R. § 36.303(a). 

Slide 6:
Other Title III Provisions
•	Discrimination is prohibited whether it is “done directly, or through contractual, licensing, or other arrangements…” 42 U.S.C. §§ 12182(b)(1)(A)(i-iv).
•	“Goods, services, … shall be afforded… in the most integrated setting appropriate to the needs of the individual.” 42 U.S.C. §§ 12182 (b)(1)(B). 
•	Personal devices and services are not required. 
•	“… such as wheelchairs; …prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 36.306 
•	Direct threats to health or safety are not required (similar to Title I criteria). 28 C.F.R. § 36.208.

Slide 7:
Pre-Litigation Notice

Slide 8:
Standing – Prelitigation Notice 
ADA Notification Act of 2009 (H.R. 2397)
•	Would require plaintiff to give a Title III entity written notice of an alleged violation before filing suit.
•	Would allow the entity 90 days to correct alleged violations before a Title III law suit could be filed.
•	Bill is a reaction to aggressive ADA Plaintiffs
•	Queries:  
•	Are there other civil rights laws with similar provisions?
•	Is the fact that the ADA is 19 years-old relevant?
•	Are legal rules forbidding meritless claims underutilized?

Slide 9: Standing to Sue

Slide 10:
Standing - Overview 
General Standing Requirements:
•	Plaintiff must suffer a personalized and concrete injury-in-fact of a legally cognizable interest
•	The injury must be traceable to the defendant’s conduct
•	It must be likely, rather than speculative, that the injury is redressable through a favorable court decision
Title III Standing Requirements:
•	Plaintiff must show harm from lack of ADA compliance 
•	Accessibility issues must relate the plaintiff’s disability
•	Must show a likelihood of future harm
•	Plaintiff must not be a “vexatious” or “frivolous” litigant

Slide 11:
Standing – Allegation of future harm
•	 Must show likely, rather than speculative plans to return.
•	 Four factors:
•	Proximity of the business to the plaintiff’s home, 
•	Plaintiff’s past patronage of the defendant’s business,
•	Definiteness of the plaintiff’s plans to return, and 
•	Frequency of travel near the business.
Ault v. Walt Disney World, 2008 WL 490581 (Feb. 20, 2008). 
•	 No possibility of future harm for Plaintiff who asserted 	denial of services due to blindness where:
•	Plaintiff moved away from the clinic and 
•	Doctor stopped providing insemination services.
Chambers v. Melmed, 141 Fed. Appx. 718, 720 (10th Cir. 2005).

Slide 12:
Standing – Allegation of future harm
Access 4 All, Inc. v. OM Mgmt., LLC, 2007 WL 1455991 (S.D. Ohio 2007).
•	Plaintiff could challenge a hotel’s architectural barriers without alleging future intentions to return as holding otherwise would require an “exercise in futility.”
Castaneda v. Burger King, 597 F.Supp.2d 1035, 1042 (N.D. Cal. 2009). 
•	Plaintiff may challenge the wheelchair-accessibility of 90 different restaurants even though he only frequented two of them, as the restaurants shared common designs and discriminatory practices.
Van Brocklen v. Gvnmt. Employees Ins. Co., WL 414053 (N.D.N.Y. 2009). 
•	When an insurance company cancelled a person’s policy after a “panic attack,” the harm was ongoing as it affected his ability to get medical care. 

Slide 13:
Standing and the Inquiry of Vexatious Litigation 
•	 Some people have filed a lot of ADA lawsuits sometimes 	settling for money without accessibility improvements.
•	 Some courts use extra diligence to avoid a “legal 	shakedown scheme.
•	 These situations have been called, “Drive-by lawsuits.”
•	 Courts determine a plaintiff’s credibility by looking through 	a plaintiff’s litigation history and inquiring into: 
•	The number of ADA lawsuits filed, 
•	The frequency that the plaintiff settled the lawsuit, trading accessibility compliance for a cash settlement, 
•	The merits of the claims brought, and 
•	Whether the plaintiff did actually return to establishments. 

Slide 14:
Standing and the Inquiry of Vexatious Litigation - example
Molski v. Evergreen Dynasty Corp., 2007 WL 2458547 (9th Cir. 2007). 
•	Plaintiff was called a “vexatious litigant” filing over 400 ADA suits, the majority of which rested on complaints which were not credible.
•	Plaintiff’s real motivation was to extract money.
•	Court denied standing and required leave of court for new filings.

Harris v. Stonecrest Auto Care Center, LLC, 
472 F.Supp.2d 1208, 1217 (S.D. Cal. 2007).
•	Testers do not have standing – claim cannot be redressed.

Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 119 (C.D. Cal. 2008). 
•	Motive for returning is irrelevant – only look at an “intent to return.”

Slide 15:
Readily Achievable Barrier Removal
A World of Barriers

Slide 16:
Readily Achievable Standards
•	 Discrimination Includes a failure to remove architectural 	and communication barriers where “readily achievable.” 
•	Alternative methods should be used where barrier removal is not readily achievable. 42 U.S.C § 12182(b)(2)(A)(iv-v).
•	 “Readily achievable means easily accomplishable… 	without much difficulty or expense... Factors include –
•	Nature and cost of the action needed under this part;
•	The overall financial resources of the site…; the effect on expenses and resources; legitimate safety requirements…; or the impact …upon operation[s]…;
•	Financial resources of any parent corporation… and
•	The type of operation or operations of any parent corporation …”
42 USC § 121821 (9)(A-D); 28 C.F.R. § 36.104.

Slide 17:
Readily Achievable – Facts of
Norwegian Cruise Lines Case
Spector v. Norwegian Cruise Line Ltd., 
545 U.S. 119 (2005).
People with disabilities & companions alleged physical barriers on ships denied access to: 
•	Emergency evacuation equipment 
•	Public restrooms, 
•	Restaurants, 
•	Swimming pools, 
•	Elevators and 
•	Cabins with a balcony or a window. 

Slide 18:
Norwegian Cruise Lines
Additional alleged violations: 
•	 Requiring only passengers with disabilities to sign medical 	liability waivers and to travel with companions; 
•	 Reserving the right to remove passengers with disabilities 	if they endangered other passengers' comfort; and 
•	 Failing to make reasonable modifications. 

Cruise Line Defense:
•	 The cruise line argued that the modifications requested 	would violate international standards and treaties. 

Slide 19:
Supreme Court Ruling –  Norwegian Cruise Lines 
•	 Absent a statement in the text, a statute does not apply to 	the internal operations of foreign-flagged ships.
•	 ADA applies to foreign ships. Absent a statement in the text, a statute does not apply to internal operations of foreign ships.
•	 Use of the disjunctive term between “difficulty or expense” 	indicates considerations other than cost may apply. 
•	 ADA’s own limitations prevent requirements that conflict with international obligations or threaten safety.
•	 Changes affecting internal operations could be a defense.
•	Most violations alleged do not relate to a ship’s internal affairs. 
Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005).
Slide 20:
Readily Achievable – Lease Issues 
•	 Restaurant rest room lacked grab bars & a wide doorway.
•	Lease: No alterations by Lessee “without… written consent.” 
•	 Patron sued the lessor and lessee. 
•	 Court: ADA applies to “any person who owns, leases 	(or leases to), or operates a place of public 	accommodation”. 42 U.S.C. §§ 12182(a) (emphasis added). 
•	 Both the landlord & tenant are public accommodations.
•	A landlord & tenant may “allocate responsibility for compliance…,” but this does not affect [a tenants‘] obligations.
•	The length of a lease or the time remaining is relevant.
Grove v. De La Cruz, 407 F.Supp.2d 1126 (S.D. Cal. 2005);             Clark v. Simms, 2009 WL 890685 (W.D. Va. 2009). 

Slide 21:
Readily Achievable – Time for Wine In An Historic Building
Molski v Foley Estate Vineyards..., 531F.3d 1043 (9th Cir. 2008).
•	 Historic winery had steep exterior ramp & interior barriers.
•	Winery had built an accessible exterior gazebo for $23,994. 
•	Other renovations included: accessible ramp and a “big bell.” 
•	 ADAAG: Compliance required “to the maximum extent feasible.” 
•	Barrier removal is not readily achievable if it would “threaten or destroy the historic significance of a [designated historic] building or facility...” (citing DOJ TAM § III-4.4200); 28 C.F.R. § 36.405(a).
•	 Court: Barrier removal inside was readily achievable, 	hence external gazebo not a reasonable accommodation. 
•	Disadvantage for those who could access wine-tasting room.
•	Court looked at “maximum participation possible...” 

Slide 22:
Readily Achievable – Time Frames
First Bank … v. F.D.I.C., 433 F.Supp.2d 1134 (S.D. Cal. 2006).
•	 “The ‘readily achievable’ standard necessarily includes a 	temporal element... what is easy to accomplish in one 	year may not be easily accomplishable in one day…”
•	Temporal element should be measured from ADA enactment.

Slide 23:
Website Access

Slide 24:
Overview of Inaccessible Websites and Title III
	Barriers:
	Many people with disabilities are unable to access information on websites because of a variety of barriers that exist.  
	ADA Silent on Websites:
	The ADA does not specifically reference websites because the Act was passed in 1990 before the Internet became an integral element of our society.  

Slide 25:
Title III  - Place of Public Accommodation
   Issue: Is a physical space required for a “place” of public accommodation?  
   Physical Space Required: Some courts require a physical space in order to be covered by Title III, which would likely mean that websites are not covered.
	Physical Space Not Required: Other courts do not require a physical space. In Doe v. Mutual of Omaha, the 7th Circuit did not require a physical space and listed websites among the entities that are covered by Title III. 
Doe v. Mutual of Omaha 179 F.3d 557, 559 (7th Cir. 1999). 

Slide 26:
Title III  - Website Accessibility Case Examples
Access Now v. Southwest Airlines,
227 F.Supp.2d 1312, 1321 (S.D. Fla. 2002).
•	Issue: group sued Southwest Airlines claiming its website was inaccessible violating Title III. 
•	Case dismissed: website did not exist in a geographical location, so it was not a place of public accommodation.  
•	On Appeal: plaintiffs changed their argument claiming that the website was part of a “travel service” and therefore, covered by Title III.  Appeal dismissed because new argument was inappropriately first raised on appeal. 
•	Query: Should have this been decided under the ACAA? 

Slide 27:
Title III  - Website Accessibility 
Case Examples (cont’d)
National Federation of the Blind v. Target Corp., 
452 F.Supp.2d 946, 956 (N.D. Cal. 2006). 
Claim: Target violates Title III and state law because its 		website is inaccessible.  
Court Decision: Target’s Motion to Dismiss was denied.
Rationale: To the extent that the inaccessibility of Target’s website impeded full and equal enjoyment of goods and services offered in Target stores, the plaintiffs stated an ADA claim. Target’s website has a “nexus” to Target stores, which are places of public accommodation. 

Slide 28:
Title III  - Website Accessibility Case Examples (cont’d)
National Federation of the Blind v. Target Corp.
Class Action Status: Following the ruling on the Motion to Dismiss, the court issued another order certifying the case as a class action.  
Class Definition: The class is defined as “all legally blind individuals in the United States who have attempted to access target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.”

Slide 28:
Website Accessibility Achieved 
Via Structured Negotiations
   Some changes to website accessibility have been achieved via structured negotiations:
•	LaSalle Bank agreed to update its websites to make them more accessible.  See: www.equipforequality.org/programs/assistivetechnology/lasallebank_settlement.doc 
•	Radio Shack agreed to change its website to make it accessible.  See: www.radioshackcorporation.com/ir/release_details_main.php?id=918.

Slide 29:
Conclusion 
Case Law: The case law is still developing as to whether there is cause of action under the ADA for inaccessible websites.  

Best Practice: Employers, public entities and private businesses should make their websites accessible to achieve the underlying purpose of the ADA to promote the full participation of people with disabilities in our society. 
	
Query:  What web standards should be applied?

Slide 31:
Communication Access in Health Care Settings and Fast Food Restaurants

Slide 32:
Communication Access 
DOJ TAM § 4.3200 
•	Leaves it up to the public accommodation to ultimately decide what measures to take “to ensure effective communication…provided that method chosen results in effective communication.” 
•	What constitutes effective communication will vary with each individual with a disability, and “the type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.”

Slide 33:
Communication Access at a Dr. Office
Majocha v. Turner, 166 F.Supp.2d 316 (W.D. Pa. 2001). 
•	Individual who is deaf requested an interpreter when speaking with an ENT specialist about his infant son but the Dr.’s office wanted to write notes instead.
•	Dr. sent a letter saying appointment was cancelled, “we feel we cannot meet your needs in caring for your child.” 
•	Dr. claimed “note taking” is listed as an example of acceptable auxiliary aids. 
•	Court: A genuine issue of fact existed as to whether note taking could be considered an effective form of communication in the health care setting.

Slide 34:
Communication Access 
•	If no attempt is made to provide an auxiliary aid, that entity will be liable for discrimination for failing to effectively communicate with their patient. 
See Naiman v. New York University, 1997 WL  249970 (S.D. NY 1997).
•	When a hospital tried unsuccessfully to secure an ASL interpreter, it did not violate the ADA although it may have been negligent for failing to follow up on that request.
•	Failure is not deliberate indifference to Plaintiffs' rights. 
•	Therefore no damages under Rehab Act.
•	As Plaintiff did not plan to return, no injunctive relief.
Constance v. State of New York  Health Science Center at Syracuse, 166 F.Supp.2d 663, 668 (N.D. N.Y. 2001). 

Slide 35:
DOJ Settlements – Health Care
•	DOJ has many settlements with health care providers at www.ada.gov.
•	In one case, the hospital failed to provide a qualified sign language interpreter, a TTY, and a captioned television. 
•	As a result of the lack of a qualified interpreter, the deaf patient was unaware of why the hospital was performing various tests on him. 
•	Moreover, the hospital “improperly imposed” upon the patient’s wife and supervisor to serve as “interpreters.”

Slide 36:
DOJ Settlements – Health Care 
•	Through the settlement, the hospital agreed to:
•	Provide appropriate auxiliary aids, as determined by an assessment of the patient or companion’s individual needs; 
•	Give notice to the community and the hospital’s personnel regarding their policy on the provision of auxiliary aids; 
•	Train personnel to ensure effective implementation of the policy. 
•	The agreement also contains information reciting:
•	Circumstances under which an interpreter might be necessary,
•	The method for obtaining one, and 
•	The timeliness of providing one. 
•	Query: Is it in the physician’s best interest to provide the most effective means of communication possible?

Slide 37:
Communication Access 
In Fast Food Restaurants 
Bunjer v. Edwards, 985 F.Supp. 165 (D. D.C. 1997). 
•	An individual who is deaf should be allowed to write down his order at McD’s and should not be harassed.
•	Court ordered policy implementation and training.
Camarillo v. Carrols Corporation, 518 F.3d 153 (2nd Cir. 2008).
•	A patron with a visual impairment should have a menu read to her completely without ridicule.
U.S. Department of Justice, ADA Guide for Places of Lodging: Serving Guests Who Are Blind Or Who Have Low-Vision. 
•	Menus can be made accessible by: Braille, large-print, or having staff read the menus to the individual. 

Slide 38:
Movie Theater Access

Slide 39:
Overview of Some Issues 
Regarding Movie Theaters
•	Full Integration of Seating
•	Unobstructed Viewpoints
•	Sight-Lines
•	Companion Seating Policies
•	Audio Description
•	Captioning

Slide 40:
Movie Theater Access 
•	Title III: in addition to access requirements that apply to all Title III entities, movie theatres are required to:
•	Provide physical accessibility for wheelchair users
•	Provide wheelchair users with “lines of sight comparable to those for members of the general public.” 
•	Provide priority to companions of persons who use wheelchairs.
•	Have ADA compliant policies.
•	DOJ Regulations include “open and closed captioning” as a possible auxiliary aid or service. 28 C.F.R. § 36.303(b)(1). 
•	However, guidance provides, “Movie theaters are not required by Sec.36.303 to present open-captioned films.” 

Slide 41:
Movie Theater Access Policies –  Companion Seating 
Fortyune v. AMC, Inc ., 364 F.3d 1075 (9th Cir. 2004). 
•	  Movie theater policy: Persons with wheelchair-users 	could not demand use of companion seating if sold-out.
•	 	This policy violated Title III – plaintiff’s request to 	modify the theater’s policies to allow him to sit with his 	companion was reasonable. 
•	 	Movie theaters must ensure that companions have 	priority use of companion seating. 42 U.S.C. 12182(b)(2)(A)(ii).

Slide 42:
Movie Theater Access – Sight lines 
Circuit Courts are split on requirements
•	Does not require unobstructed views 
Caruso v. Blockbuster-Sony Music Enter., 193 F.3d 730 (3d Cir. 1999).
•	Only some  wheelchair seats require unobstructed views
Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C.Cir.1997).
•	Requires unobstructed views for all wheelchair seats, but not comparable viewing angles 
Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000). 
•	Unobstructed views and at least some sort of comparable viewing angle 
Oregon PVA v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003); U.S. v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003). 

Slide 43:
Movie Theater Access – Sight lines 
U.S. v. AMC Entertainment, 2006 WL 224178 (C.D.CA 2006).
•	Court held that AMC was not required to retrofit facilities that were built before the company was on constructive notice of the sight lines regulations
•	AMC still was required to make modifications to the movie theaters built after the company had constructive notice of the regulations.
•	AMC also was required to ensure that all movie theaters built in the next five years complied with the ADA.

Slide 44:
Movie Theater Access – Captioning and Audio Description 
Arizona v. Harkins, 548 F.Supp.2d 723 (D.Ariz. 2008).
•	 Requiring open or closed captioning or audio descriptions 	would be a fundamental alteration.
•	 Court: Only service a movie theater provided is screening 	a film in the form that the theatre received it.  
•	 	As people with disabilities were just as capable of 	accessing that service – albeit unable to hear it or see it – 	they were not being discriminated against. 
•	 Note: This case is currently on appeal
•	 Query:  Is the court’s reasoning sound? 

Slide 45:
Emergency Preparedness

Slide 46:
Overview of Some Issues Regarding Emergency Preparedness
•	Are emergency egress points accessible
•	Auditory and visual components of alarms
•	Areas of rescue assistance
•	Signage
•	Providing info to first responders & privacy issues
•	Can a person with a disability pose a direct threat in an emergency due to their disability?

Slide 47:
Emergency Evacuation Planning - Egress & Alarms
•	 Emergency egress required by local codes must comply with ADAAG. 
Access 4 All v. Atlantic Hotel Condominium Association, 2005 WL 5643878 (S.D.Fla. Nov. 23, 2005). 
•	 Egress was not accessible if through a “staff only” door and kitchen.
Access Now v. Ambulatory Surgery Center Group, LTD
2004 WL 3045404 (Md.Cir.Ct. Dec. 20, 2004).
•	 	When placing visual alarms, hospitals can consider: patient and 	guest safety, need for orderly evacuations, & activities of a room.
•	 	Hospital was required to place visual alarms in some rooms including 	waiting rooms and public restrooms but not operating rooms, 	recovering rooms, and special services rooms like NICU or ICU.

Slide 48:
Disaster Planning: Evacuation Policies under Title II
Shirley v. Alexandria School Bd., 2000 WL 1198054 (4th Cir. 2000).
•	Bomb threat - school evacuated all ambulatory children.
•	Children with wheelchairs were inside w/ adult for 70 min. 
•	School then developed a plan with a “safe room.” 
•	Police & fire departments were aware (& room had a cell phone). 
•	School ran drills to ensure that everyone understood the plan.
•	Fire drill - Responsible adult left with ambulatory children.
•	Court:  1st incident violated ADA – plan not reasonable.
•	2nd incident – no violation: a plan was in place, fire and police were notified, people were trained and drilled.
•	Query:  Could the school board have done more?

Slide 49:
Disaster Planning 
Evacuation Policies 
Savage v. City Place Limited Partnership, 2004 WL 3045404 (Md.Cir.Ct. 2004).  
•	Woman in a wheelchair was on the 2nd floor of Marshall’s. 
•	When the fire alarm went off, the elevators deactivated.
•	She was unable to evacuate until the emergency ended. 
•	Claimed ADA violations and false imprisonment.
•	Court:  Evacuation procedures are a “policy” under ADA.
•	Plaintiff had the burden to prove the reasonableness of a modification to the evacuation policy. 
•	Defendant to the burden to prove that the proposed modification would be a fundamental alteration.

Slide 50:
Disaster Planning 
Evacuation Policies 
Savage v. City Place Limited Partnership 
•	The Defendants decided to settle this case. Under the settlement agreement, Marshall’s agreed to:
•	Provide certified accessible emergency exit routes to evacuate the building or get to areas of rescue assistance.
•	Train all store managers to assist customers in locating and using evacuation routes.
•	Train all employees on evacuation procedures.
•	 Hire ADA consultants to develop and implement new policies and procedures.
•	Designate responsible corporate employees to oversee and coordinate implementation of the terms of the settlement.

Slide 51:
Service Animals

Slide 52:
Overview of Some Issues 
Regarding Service Animals
•	“No pet” policies
•	Types of animals
•	 What about “emotional support” animals
•	What are the qualifications of a service animal?
•	Certification of the service animal’s status or the person’s disability be required – what can be asked?
•	Link between the animal and disability
•	Fundamental alteration & Direct Threat Defenses
•	DOJ is revising Title III regulations – public comment.
•	FHA, ACAA, and state or local laws may apply.

Slide 53:
Service Animals – DOJ Regulations and Guidance
•	“Service animal means any guide dog, … or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability…” 42 U.S.C § 12181.
•	DOJ Guidance: Commonly Asked Questions About Service Animals and ADA Business Brief: Service Animals at www.ada.gov.
•	Congress intends to allow service animals the “broadest feasible access” to avoid separation. 28 C.F.R. pt. 36 App. B. 
•	CDC generally sees no problems except for nonhuman primates and reptiles in health care facilities. www.cdc.gov. See Sheely v. MRI Radiology Network, P.A. 505 F.3d 1173 (11th Cir. 2007). 
•	DOJ is revising the Title III regulations.

Slide 54:
Service Animal Cases: 
Animal Qualifications – Pruett 
Pruett v. Arizona, 606 F. Supp. 2d 1065 (D.Ariz. 2009).
•	Person with diabetes had a chimpanzee service animal.
•	Previously, she used to use an ape trained to retrieve sugar and press her medical alert button.
•	After the ape died, no service animal for one year.
•	Claimed the chimpanzee was needed to monitor her blood sugar levels and retrieve sugar. 
•	There was no evidence the animal was trained to do this.
•	Court: No proof she needed the chimpanzee to do individualized tasks for her that she could not do on her own – therefore it was not a service animal. 

Slide 55:
Service Animal Cases: 
Policies – CostCo 
Grill v. Costco Wholesale Corp., 
312 F. Supp. 2d 1349 (W.D. Wash. 2004).
•	Private membership club had a written policy requiring:
•	Employees told to look for ID of service animal status.
•	If no ID, employee’s asked what task or function the animal performed that its owner could not.  
•	Policy prohibited employees from asking about the disability.  
•	Court upheld policy - referenced DOJ Brief & Guidance.

Thompson v. Dover Downs, Inc., 887 A.2d 458 (Del. Super. Ct. 2005
•	Patrons should answer appropriate questions.

Slide 56:
Service Animal Cases:
Fundamental Alteration
Lentini v. California Center of the Arts, 
370 F.3d 837 (9th Cir. 2004). 
•	CA Center for the Arts refused access to a patron whose service dog previously yipped or barked at intermissions.
•	Dog did not disturb performances and barking was rare. 
•	No patron ever complained & was not a significant disturbance. 
•	Center argued fundamental alteration of services – i.e., the animal would deter other patrons from attending. 

Slide 57:
Service Animal Cases:
Fundamental Alteration – Lentini
•	Court: Center ordered to make a reasonable modification so as not “to exclude a service animal who has made a noise on a previous occasion, even if such behavior is disruptive, if the noise was intended to serve as a means of communication for the benefit of the disabled owner or if the behavior would otherwise be acceptable … if engaged in by humans.”  
•	Fundamental alteration - “intensively fact-based inquiry” 
•	Mere speculation of potential future disturbances was undercut by evidence that demonstrated otherwise. 
Lentini v. California Center of the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004).
Slide 58:
Service Animals – DOJ Settlements 
•	Denial of restaurant access (mobility assistance animal). 
•	Owner apologized & agreed to educate his staff about ADA. 
•	Agreed to contact other professionals in his field & trade org.
•	Make a donation to a charitable organization for service animals. 
•	Car rental co. put animals in kennels for shuttle service. 
•	Had to modify the policy to avoid separation.
•	Wal-Mart Store denied access to service animals.
•	Modify policy to allow access.  
•	Post prominent notice that service animals are welcome 
•	Train and certify each employee about the service animal policy
•	Implement a grievance policy.

Slide 59:
Accommodations in Post-Secondary Education and Licensing

Slide 60:
Overview of Issues In Post-Secondary Education and Licensing
•	Who gets reasonable modifications/accommodations?
•	Disability & Qualified Issues
•	Possible Reasonable Modifications / Accommodations
•	Extra time for tests or course completion
•	Alternative sites (May be environmental or mental impairments)
•	Alternative methods or manners for tests or materials
•	Fundamental Alteration Issues
•	Eligibility requirements 
•	Fairness to Others
•	Licensing Applications 
•	Required disclosure of medical conditions or treatments

Slide 61:
Post Secondary Education - Disability & Qualified Issues
•	Query: For “substantial limitation,” do you compare students to an “average person” or an “average student”?
•	See, Love v. Law Sch. Admissions Council, Inc. (“LSAC”), 513 F.Supp.2d 206 (E.D. Pa. 2007)(finding student not disabled).  
•	Title III: 	No express “qualified” standard
•	Sec. 504: “otherwise qualified individual with a disability.” 
•	Title II:  	“A qualified individual with a disability” is “a disabled person who, with or without reasonable modifications,…[barrier removal, or auxiliary aids or services], meets the essential eligibility requirements...” 

29 U.S.C. § 794(a); 42 U.S.C. § 12131(2). 

Slide 62:
Post Secondary Education - Qualified Issues
•	“Basic qualifications come into play [in] post-secondary education… implicit in Title III's acknowledgment… that requested modifications need not be provided if they will fundamentally alter the nature of the program. 
Mershon v. St. Louis Univ., 442 F.3d 1069 (8th Cir. 2006); 
See 42 U.S.C. § 12182(b)(2)(A)(ii).

•	A student who could not meet eligibility standards with accommodations is not “qualified.” 
Millington v. Temple Univ., 261 Fed.Appx. 363 (3d Cir. 2008).

Slide 63:
Post Secondary Education - Qualified & Other Issues
•	Generally, an educational institution is not required by the Rehabilitation Act or the ADA to lower its academic standards for a professional degree. 
•	“It … would fundamentally alter the nature of a graduate program to require the admission of a disabled student who cannot, with reasonable accommodations, otherwise meet the academic standards of the program.”
•	“We will… consider cases dealing with each Act as ‘applicable and interchangeable.’” 
Mershon v. St. Louis Univ., 442 F.3d 1069 (8th Cir. 2006).  

Slide 64
Qualified Issues In Other Settings
•	 PGA Tour – Arnie, Jack, and Casey
•	 Golfer claimed he should be able to use a golf cart on PGA Tour.
•	 Is it a qualified issue?
•	 Is it a reasonable accommodation or modification issue?
•	 Is it a fundamental alteration issue? 
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
•	 Other non-educational settings appear?
•	Camp programs
•	These may also be Title II issues (program access).
•	 DOJ Settlements
•	Child with diabetes

Slide 65
Accommodations For Examinations and Courses Related to Licensing…
•	 “Any [private entity] that offers examinations or courses 	related to applications, licensing, … for secondary or 	postsecondary education, professional, or trade purposes 	shall offer [these] in [an accessible] place and manner or 	offer alternative…arrangements…”
42 USC § 12189. 28 C.F.R. § 36 .309(a).
•	 “Auxiliary aids must be provided unless [they] would 	fundamentally alter the measurement of the skills or 	knowledge the examination is intended to to test or would 	result in an undue burden.” 
28 C.F.R. § 36 .309(b)(1)(i)(3). 

Slide 66
Cases on Post-Secondary Accommodations
Mershon v. St. Louis Univ., 442 F.3d 1069 (8th Cir. 2006).
•	 Early registration may be a reasonable accommodation for a student 	who needs to receive his disability benefits check early to pay tuition. 
Powell v. NBME., et.al., 364 F.3d 79 (2nd Cir. 2004).
•	 	2nd year medical student failed USMLE twice after 2 years of 	tutoring and other accommodations and was expelled. 
•	 	Court: Student is not entitled to be readmitted to Uconn – policy 	requiring passing the USMLE to be promoted to 3rd was lawful.
•	 Changing policy would be fundamental alteration.
•	 Accommodations were provided 
•	 Extended time for test by NBME was not required .
•	 “It [would] alter the substance of the product … scores would not be guaranteed to reflect each examinee's abilities accurately.”

Slide 67
Effective Accommodations
Di Lella v. Univ.of D.C. Sch. of Law, 570 F.Supp.2d 1 (D. D.C. 2008). 
•	 School has discretion but must provide an “effective 	accommodation.” (cited ADA Title I employment regs.)
•	 School already provided:
•	Double time to complete examinations 
•	A separate, quiet testing room 
•	Extended time on written projects.
•	A notetaker (school later changed this to transcriptions). 
•	 Professor mentioned her learning disability in class.
•	Student also accused of plagiarism.
•	 As transcriptions were not timely, effectiveness is at issue.

Slide 68:
Enforcement

Slide 69
Enforcement 
•	Only remedies available to a private plaintiff under ADA in federal court are injunctive relief & attorneys' fees. 
42 U.S.C § 12188(a)(1-2); 28 C.F.R. § § 36.501, 36.505.
•	U.S. Attorney General can obtain money damages.
•	Money damages are available under the Rehab Act.     See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007)(non-economic compensatory damages, such as for mental anguish, are available under § 504).
•	Money damages may be available under state / local law. 6/18/09 CA case allows money damages under state law for Title III violations. Munson v. Del Taco Inc. , 09 C.D.O.S. 7253. 
•	Query: How would money damages change compliance?

Slide 70
Enforcement 
•	Informal
•	 Internal grievance procedure
•	 Engage in informal negotiation with parties involved
•	Formal
•	 File Complaint in Federal Court (S/L follows state law)
•	 US Department of Justice (DOJ), Office of Civil Rights
•	 Down Load Complaint Form at www.ada.gov 
•	 800-514-0301 (V) or 800-514-0383 (TTY)
•	 US Dept. of Education, Office of Civil Rights (OCR),
•	 On-line complaint form at: www.ed.gov/ocr/complaintprocess.html 
•	State or Local Human Rights Commission

Slide 71
ADA Title II Hot Topics
QUESTIONS?

Slide 72
Resources
•	DBTAC: Great Lakes ADA Center: 	www.adagreatlakes.org
•	Equip For Equality:  www.equipforequality.org
•	Department of Justice, ADA Info:  www.ada.gov
•	Department of Education, OCR: www.ed.gov
•	ADA Accessibility Guidelines (ADAAG): http://www.access-board.gov/adaag/html/adaag.htm 
•	ADA Technical Assistance: www.adatac.org
Slide 73
Legal Update on Title III Case Law: Title III ADA Hot Topics
THE END

Slide 74
Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
September 22, 2009
Pretext Cases: Sound Business Decision or Discriminatory Action? 

Slide 75
Session Evaluation

Your feedback is important to us. Please fill out the on-line evaluation form at:
http://www.formdesk.com/idealgroupinc/dbtac_evaluation_legal_update_title_III