Access 4 All, Inc. v. Bamco VI, Inc.
| Decision Date | 06 January 2012 |
| Docket Number | CASE NO. 11-61007-CIV-COHN/SELTZER |
| Parties | ACCESS 4 ALL, INC., a Florida not for profit corporation and JOE HOUSTON, individually, Plaintiffs, v. BAMCO VI, INC., a Florida profit corporation d/b/a CITGO GAS, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Plaintiffs' Motion for Summary Judgment [DE 19] ("Plaintiffs' Motion") and Defendant's Motion for Summary Judgment [DE 21] ("Defendant's Motion") (collectively "Motions for Summary Judgment"). The Court has carefully considered the Motions for Summary Judgment, all of the parties' submissions, and is otherwise fully advised in the premises.
Plaintiff Joe Houston ("Houston"), a Pompano Beach, Florida resident, was paralyzed as a result of an automobile accident. Statement of Joe Houston Made Pursuant to 28 U.S.C. § 1976 [DE 19-2] ("Houston Aff.") ¶ 3. Houston serves as the vice president of Access 4 All, Inc. ("Access 4 All"), a non-profit corporation which strives to ensure that places of public accommodation are accessible to the disabled. Id. ¶ 4. On May 6, 2011, Houston and Access 4 All (collectively "Plaintiffs") filed suitagainst Defendant Bamco VI, Inc. ("Defendant") pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 ("ADA"), seeking declaratory and injunctive relief after Houston allegedly encountered architectural barriers to access at a gasoline station Defendant operated. Complaint [DE 1] ¶¶ 4-5. Specifically, Plaintiffs allege that Houston encountered violations of the ADA at Defendant's gas station including an insufficient access aisle in the parking and loading zone and numerous violations in the restrooms. Id. ¶ 10.
After the Complaint was filed, Defendant retained William Norkunas ("Norkunas"), president of Disability Assistance, Inc., to inspect its gas station. Affidavit of William Norkunas [DE 25] ("Norkunas Aff.") ¶¶ 1, 4. During a May 17, 2011 inspection, Norkunas identified a number of "readily achievable" modifications which should be done at the gas station to make it ADA compliant. Id. ¶ 5. According to Norkunas, Defendant implemented all these modifications which he personally verified at a July 8, 2011 re-inspection of the facility. Id. ¶ 7. On October 20, 2011, Plaintiffs had Peter Lowell ("Lowell") inspect the gasoline station to determine its ADA compliance. Plaintiffs' Motion ¶ 7. Based on Lowell's inspection, Plaintiffs contend that the gas station is not ADA compliant and they are entitled to an injunction which requires the Defendant to comply with the ADA. Defendant, on the other hand, argues that all readily achievable ADA modifications have been made to the gas station and Plaintiffs lack standing to pursue their claims. Plaintiffs and Defendant have now filed cross motions for summary judgment.
The Court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge this burden, the movant must demonstrate a lack of evidence supporting the nonmoving party's case. Id. at 325.
After the movant has met its burden under Rule 56(c), the burden of production shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "may not rely merely on allegations or denials in its own pleading," but instead must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587.
As long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the non-moving party "ismerely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Title III of the Americans with Disabilities Act provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To make out a prima facie ADA discrimination case, Plaintiffs must establish that (1) Houston is disabled; (2) that the gas station is a place of public accommodation; and (3) that Houston was denied full and equal treatment because of his disability. See Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001). Here, there is no dispute that Houston is disabled or that the gas station is a place of public accommodation. Memorandum of Law in Support of Defendant's Motion for Summary Judgment [DE 23-1] ("Defendant's Mem.") at 4; Defendant's Motion ¶ 1; Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment [DE 19-1] ("Plaintiffs' Mem.") at 6.
Discrimination under the ADA includes "a private entity's 'failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." S. Fla. Stadium Corp., 161 F. Supp. 2d at 1362 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). If a defendant is found to violate the ADA, a court may grant injunctive relief, including "an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities." 28 U.S.C. § 12188(a)(2). When a structure was in existence prior to the enactment of the ADA, however, theADA requires "only reasonable modification and readily achievable barrier removals or alternative methods." S. Fla. Stadium Corp., 161 F. Supp. 2d at 1362 (internal citations and quotations omitted) (emphasis in original). Because Defendant's gasoline station existed prior to January 26, 1992, the issue presented here is whether Defendant has removed all existing architectural barriers whose modification is readily achievable. Plaintiffs' Motion ¶ 13; Defendant's Motion ¶ 1.
Defendant challenges Plaintiffs' standing to bring this lawsuit. Defendant's Mem. at 6. Defendant contends that Plaintiffs only have standing to raise ADA violations identified at the time their Complaint was filed. Id. Defendant also argues that given Houston's extensive litigation history, he has failed to demonstrate a present intent to return to the property. Id. at 9. Plaintiffs dispute this, arguing that they are entitled to injunctive relief "with respect to all violations, regardless of whether he actually encountered them, knew of them, or named them in his complaint. Plaintiff's Response to Defendant's Motion to Strike [DE 28] ¶ 8. For the reasons discussed below, the Court finds that Plaintiffs lack standing to bring claims not alleged in the Complaint.
To establish constitutional standing to bring a lawsuit, a plaintiff must demonstrate that (1) he suffered an injury in fact; (2) the injury was causally connected to the defendant's action; and (3) the injury will be redressed by a judgment in the plaintiff's favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (). In addition, "a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merelyconjectural or hypothetical—threat of future injury." Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001); Shotz, 256 F.3d at 1081 ().
Defendant argues that Plaintiffs lack standing because Houston is a serial plaintiff and has no present intent to return to the property. See Defendant's Mem. at 9. Plaintiffs contend that they have demonstrated an injury in fact because Houston would return to the property but for its ADA non-compliance. Plaintiffs' Mem. at 8. Here, Houston submitted an affidavit with his motion for summary judgment where he states that he would return to the gas station if he could be assured of full access. Houston Aff. ¶ 7. Given that Houston lives in Pompano Beach and has averred that he would return to the gas station located in Hollywood if it complied with the ADA, the Court declines to find that Plaintiffs have failed to demonstrate a real and immediate threat of future discrimination at this time. See S. Fla. Stadium Corp., 161 F. Supp. 2d at 1365 ().
However, Houston's entry into Defendant's gas station "does not automatically confer upon him a presumption that he was...
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