733 F.3d 1323 (11th Cir. 2013), 12-15403, Houston v. Marod Supermarkets, Inc.

Docket Nº:12-15403.
Citation:733 F.3d 1323
Opinion Judge:HULL, Circuit Judge:
Party Name:Joe HOUSTON, Plaintiff-Appellant, v. MAROD SUPERMARKETS, INC., Defendant-Appellee.
Attorney:Thomas B. Bacon, Thomas B. Bacon, PA, Cooper City, FL, Philip Michael Cullen, III, Philip Michael Cullen, III, Chartered, Fort Lauderdale, FL, for Plaintiff-Appellant. Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, PA, Palmetto Bay, FL, for Defendant-Appellee.
Judge Panel:Before HULL and MARTIN, Circuit Judges, and BOWEN,[*] District Judge. BOWEN, District Judge, dissenting:
Case Date:November 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1323

733 F.3d 1323 (11th Cir. 2013)

Joe HOUSTON, Plaintiff-Appellant,


MAROD SUPERMARKETS, INC., Defendant-Appellee.

No. 12-15403.

United States Court of Appeals, Eleventh Circuit.

November 1, 2013

Page 1324

[Copyrighted Material Omitted]

Page 1325

Thomas B. Bacon, Thomas B. Bacon, PA, Cooper City, FL, Philip Michael Cullen, III, Philip Michael Cullen, III, Chartered, Fort Lauderdale, FL, for Plaintiff-Appellant.

Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, PA, Palmetto Bay, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:12-cv-22892-UU.

Before HULL and MARTIN, Circuit Judges, and BOWEN,[*] District Judge.

HULL, Circuit Judge:

Plaintiff-Appellant Joe Houston, who is disabled, sued Defendant-Appellee Marod Supermarkets, Inc. (" Marod" ) to compel Marod to bring one of its stores, the Presidente Supermarket, into compliance with the Americans with Disabilities Act (" ADA" ). The district court determined that Plaintiff Houston lacked standing and dismissed his complaint for lack of subject matter jurisdiction. After review and with the benefit of oral argument, we conclude that Plaintiff Houston has standing, vacate the dismissal, and remand for further proceedings.


A. Plaintiff's Title III ADA Claim

Plaintiff Houston is paralyzed, confined to a wheelchair, and disabled. In 2012, Houston filed suit against Marod, alleging that the architectural barriers at the Presidente Supermarket violated Title III of the ADA. 42 U.S.C. §§ 12181-12189 (" Title III" ).

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Title III provides that " [n]o individual shall be discriminated against on the basis of disability" in " any place of public accommodation." 42 U.S.C. § 12182(a). As to public facilities, Title III defines " discrimination" as, inter alia, " a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable." Id. § 12182(b)(2)(A)(iv). " [A]ny person who is being subjected to discrimination on the basis of disability in violation of this subchapter [Title III]" may bring a private action. Id. § 12188(a).

In his complaint, Plaintiff Houston alleged that he encountered these barriers at the Presidente Supermarket in Miami-Dade County, Florida: (1) a lack of designated disabled use parking spaces, (2) no clear path of travel connecting all essential elements of the supermarket, and (3) restrooms that failed to comply with all necessary ADA regulations. Houston also alleged that he plans to return to the property to avail himself of the goods and services offered to the public at the property, and to determine whether the property has been made ADA compliant. Houston sought declaratory and injunctive relief as well as attorney's fees and costs.

B. Defendant's Motion to Dismiss

Defendant Marod filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).1 Marod contended that Houston lacked standing to bring his Title III ADA claim, depriving the district court of subject matter jurisdiction over the suit. Marod styled its motion as a factual challenge to subject matter jurisdiction.

In its motion, Defendant Marod argued that Plaintiff Houston's litigation history cast doubt on his sincerity to return to the Presidente Supermarket and face future discrimination. Marod attached to its motion a list of 271 cases in which Houston or an advocacy group he represents was a party, all filed in the Southern and Middle Districts of Florida.2 In these cases, Houston or his advocacy group had sued Florida businesses alleging ADA violations. According to Marod, many of those suits were dismissed for lack of subject matter jurisdiction because Houston lacked standing.3 Marod pointed out that Houston in 20 other active cases had professed a desire and intent to revisit the locations that were the subject of these cases, even though those locations are spread over half the state of Florida. Given that Houston already had asserted his intent to return to so many different locations, Defendant Marod claimed that Houston's professed intent to return to the Presidente Supermarket was not credible and, thus, insufficient to confer standing.

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In addition, Defendant Marod contended that Plaintiff Houston could not demonstrate the required imminent threat of future discrimination because there was no " continuing connection" between Houston and the Presidente Supermarket. Marod stressed that (1) Houston lives in Pompano Beach in Broward County, (2) his home is " approximately 30.5 miles away" from the Presidente Supermarket in Miami-Dade County, and (3) Houston did not state when his prior visits to the store took place or provide any concrete plans or reason to revisit the store in the future.

C. Plaintiff's Affidavit in Opposition to Dismissal

In response, Plaintiff Houston submitted an affidavit providing details about his prior visits to the Presidente Supermarket and his future plans to visit the store. Houston has " a motorized wheelchair and a specially equipped van" that allow him to travel. He goes grocery shopping, shops for clothes, goes out to eat, and travels to " various attractions such as Disney World and the Daytona International Speedway." Plaintiff Houston has " shopped at various El Presidente Supermarkets many times over the past ten years or so," because he likes " Spanish food and can find items in those stores not necessarily available at other supermarkets." Houston does " not necessarily shop at the store closest to [his] home." Rather, Houston shops at any number of stores depending on what else he is doing and where he happens to be at the time.

Houston swore that before filing the instant suit, he shopped at this particular Presidente Supermarket on February 24, 2011 and June 15, 2011. Houston's affidavit included a receipt from the second visit, in which he spent $18.92 at the store.

Plaintiff Houston further explained that he travels to Miami-Dade County, where the Presidente Supermarket is located, " on a regular basis," and that he expects to be there " in the future." Houston regularly travels to Miami-Dade County because he is vice-president of an advocacy group, Access 4 All, Inc. The group is represented by the law firm of Fuller, Fuller and Associates, whose offices are located in Miami-Dade County. Houston's affidavit included a map showing that the law firm's offices are only 1.8 miles away from the Presidente Supermarket. And, while Houston did not have regularly scheduled meetings with his attorneys, he " definitely" anticipated " going to Fuller, Fuller and Associates['] offices[ ] ... in the near future."

Plaintiff Houston also described that when traveling from his home to his lawyers' offices, he drives down I-95, gets off at N.E. 125th Street, and drives east. His usual route takes him right past the Presidente Supermarket. Houston swore that if the supermarket had disabled use parking spaces, ADA-compliant restrooms, and so forth, he " would return to the Defendant's store to shop."

D. District Court's Order Granting Motion to Dismiss

The district court found that Plaintiff Houston lacked standing and, consequently, the court lacked subject matter jurisdiction over his ADA claims. The district court applied a four-factor test, used by several district courts in Florida, to assess the likelihood that a plaintiff would return to a defendant's business and suffer future discrimination. The four factors are: (1) the proximity of the defendant's business to the plaintiff's residence; (2) the plaintiff's past patronage of the defendant's business; (3) the definiteness of the plaintiff's plan to return; and (4) the frequency of the plaintiff's travel near the defendant's business.

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As to Plaintiff Houston's past and future visits, the district court did not question that Houston has visited this supermarket in the past and plans to do so in the future. Rather, the district court found that Houston was a " tester of ADA compliance," was not a " bona fide patron" of the Supermarket, and " plans to return to determine ... whether the property has been made ADA compliant." The district court ruled that Houston's test visits are a testing campaign " rather than a genuine prayer for relief by an aggrieved party."

The district court acknowledged that " [c]onstitutional standing requirements do not require that [Houston] tally up a magic number of visits to Defendant's facilities, rather they require that he actually be a bona fide patron." The district court was persuaded that Houston's " openly stated desire to act as a tester of ADA compliance ... establishes that he is something other than a bona fide patron." 4

As to Plaintiff Houston's proximity to the store, the district court observed that because Plaintiff Houston lived 30 miles from Marod's supermarket, " [e]ven if [Houston] were a frequent visitor to his attorneys' office," the distance between Houston's home and the store " diminishes the likelihood of a continued threat of injury necessitating injunctive relief." The district court concluded that Houston failed to establish that he " face[d] a continuing threat of discrimination from the alleged deficiencies of this particular supermarket" and lacked standing to seek injunctive relief.


In reviewing a district court's dismissal of a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, we review the district court's legal conclusions de novo, including the court's conclusion concerning standing. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir.2006); see also McElmurray v. Consol. Gov't of...

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