Medina-Rodriguez v. Fernandez Bakery, Inc.

• Decision Date: 14 June 2017
• Docket Number: Civil No. 16-2578 (FAB).
• Citation: 255 F.Supp.3d 334
• Parties: Norberto MEDINA–RODRIGUEZ, Plaintiff, v. FERNANDEZ BAKERY, INC. and Juan Fernandez–Ramirez, Defendants.
• Court: U.S. District Court — District of Puerto Rico

255 F.Supp.3d 334

Norberto MEDINA–RODRIGUEZ, Plaintiff,

v.FERNANDEZ BAKERY, INC. and Juan Fernandez–Ramirez, Defendants.

Civil No. 16-2578 (FAB).

United States District Court, D. Puerto Rico.

Signed June 14, 2017

Jose Carlos Velez–Colon, Bayamon, PR, for Plaintiff.

Atabey Y. Lamela–Gandia, Denise Maldonado–Rosa, San Juan, PR, for Defendants.

OPINION AND ORDER¹

BESOSA, District Judge.

Before the Court is defendants Fernandez Bakery, Inc. ("Bakery") and Juan Fernandez–Ramirez's ("Fernandez") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)"). Plaintiff Norberto Medina–Rodriguez ("Medina") brought this action against defendants alleging violations of Title III of the Americans with Disabilities Act ("ADA"). Additionally, Medina invokes the supplemental jurisdiction of the Court to adjudicate his claims pursuant to the Puerto Rico Civil Rights Act under Puerto Rico Law 131 ("Law 131"), P.R. Laws Ann. tit. 1, §§ 13, 14. Bakery and Fernandez move to dismiss all claims for lack of standing, and pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)"), arguing that Medina failed to exhaust administrative remedies and to provide notice to state authorities. (Docket No. 11 at pp. 4–6.) Plaintiff opposes. (Docket No. 12.) For the reasons set forth below, the Court DENIES defendants' motion to dismiss for lack of standing, DENIES defendants' Rule 12(b)(1) motion, and GRANTS IN PART and DENIES IN PART defendants' Rule 12(b)(6) motion.

I. FACTUAL BACKGROUND

The Court accepts the following facts as true. Medina is a resident of Carolina, Puerto Rico. (Docket No. 1 at p. 2.) He is limited in his ability to sit, stand, and walk as a result of a permanent walking abnormality. Id. Medina has abnormal, uncontrollable walking patterns due to a leg injury and bone damage. Id. The Puerto Rico Department of Motor Vehicles has issued Medina permanent handicap permit number 2015982 for accessible parking spaces. Id.

On approximately June 24, 2016, Medina visited defendants' business. Id. During this visit, Medina experienced unnecessary difficulty because no parking space was designated as "accessible" or "van-accessible." Id. As a result, Medina struggled exiting his vehicle safely, observing there was "no protection from moving cars." Id. at pp. 8–9. Medina frequently travels to the area to conduct a number of activities, including shopping. Id. at p. 2. He plans to return to the bakery at some point in the future on the contingency that modifications are made to accommodate wheelchair users.² Id. He made tentative plans to return on December 15, 2016. Id.

Medina is a self-identified "tester" for ADA compliance. Id. at p. 2. As a tester, Medina visits public accommodations to test barriers to access, proceeds with litigation if there are violations, and then returns to the location to verify compliance.³ Id. at p. 3. Medina asserts that he plans to visit the bakery annually to verify ADA compliance. Id.

Medina further asserts that Bakery and Fernandez must eliminate physical barriers where removal is readily achievable, and to construct facilities accessible to disabled individuals whenever alterations to the building are made. See 42 U.S.C. § 12182 ; 42 U.S.C. § 12183 ; (Docket No. 1 at p. 6.) Moreover, Medina alleges twelve⁴ separate violations of the 1991 and 2010 ADA Accessibility Guidelines (ADAAG), federal regulations implementing the ADA. See 28 C.F.R. § 36 app. D; 36 C.F.R. § 1191 app. D. These violations include: (1) lack of accessible route to the building entrance; (2) lack of accessible route from the parking lot into the building; (3) parking spaces narrower than 12 feet; (4) lack of access aisles adjacent to parking spaces; (5) lack of accessible ramp that meets the slope criteria; (6) lack of seating space in the bakery accessible to persons with disabilities; (7) sales and service counters exceeding 36 inches in height; (8) grab bars in the restroom of improper length or spacing; (9) failure to provide signs for an accessible restroom; (10) inadequate turning space in the restroom stall; (11) failure to provide restroom grab bars at 33 inches minimum and 36 inches maximum above the floor; and (12) failure to provide restroom mirrors at the required height above the floor. (Docket No. 1 at pp. 8–11.) Additionally, Medina contends these ADA violations are evidence of intentional disability discrimination by Bakery and Fernandez in violation of the Puerto Rico Civil Rights Act pursuant to Law 131. Id. at p. 24.

II. DISCUSSION

A. Motion to Dismiss for Lack of Standing

Defendants argue that Medina's claims pursuant to the ADA and the Puerto Rico Civil Rights Act should be dismissed for lack of standing. They contend there was no specific injury, the plaintiff's admitted status as an ADA tester nullifies the likelihood of future harm, and the removal of requested barriers would not redress the injury suffered. (Docket No. 11 at pp. 4–5.)

The doctrine of standing is rooted in Article III of the Constitution, which confines federal courts to the adjudication of actual cases and controversies. See U.S. Const. Art. III, § 2, cl. 1 ; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Supreme Court articulated a three-part test in Lujan to determine whether courts have jurisdiction over a plaintiff's claim. Id. First, the plaintiff must have suffered an "injury in fact" which is (a) concrete and particularized, and (b) actual and imminent. Id. Second, the injury must have been caused by the defendant's conduct. Id. Third, it must be likely that the injury will be redressed by a favorable judicial decision. Id.

1. Injury in Fact

Disabled individuals suffer a concrete and particularized injury when they visit an establishment that does not comply with ADA standards. See Suarez–Torres v. Restaurantes Fridas, Inc., Civil No. 16–1912, Docket No. 13 (Besosa, J.) (citation omitted). Additionally, the First Circuit Court of Appeals has held that a plaintiff bringing a Title III ADA claim must also "show a real and immediate threat that a particular barrier will cause future harm." Disabled Ams. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) ). In demonstrating a likelihood of future harm, a plaintiff need not "engage in a futile gesture" of continuously confronting discriminatory barriers, rather, knowledge that those barriers remain in place is sufficient. See 42 U.S.C. § 12188(a)(1) ; Dudley, 333 F.3d at 305. Furthermore, a disabled individual deterred from visiting a public accommodation because of architectural barriers in violation of the ADA has suffered an actual and imminent harm. See Disabled Ams. For Equal Access, Inc., 405 F.3d at 64 (quoting Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) ); see also Suarez–Torres, No. 16–1912, Docket No. 13. (Besosa, J.).

Bakery and Fernandez argue that Medina has failed to articulate a specific injury. See Docket No. 11 at p. 4. The Court disagrees. Plaintiff Medina alleges that he encountered twelve separate ADA violations at the defendants' bakery that presented barriers of access to the goods and services provided. (Docket No. 1 at pp. 8–10.) The violations outside the facility and in the parking lot made it difficult for Medina to exit his vehicle and required him to maneuver unsafely through traffic. See id. Medina further states that he is deterred from visiting the bakery in the future because he is aware that physical barriers continue to exist. Id. at p. 16. Accordingly, the Court finds that Medina's assertions are sufficient to establish a concrete and particularized injury.

Defendants next challenge whether the injury is actual and imminent, arguing that ADA "testers" lack standing because there is very little likelihood of future harm. (Docket No. 11 at p. 5.) Courts of appeals, however, have concluded that a "tester" motive does not defeat standing.⁵ See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013) (concluding that plaintiff's status as tester does not void his standing to bring a Title III ADA claim because motive is irrelevant); Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004) (holding testers have standing to sue under Title II of the ADA); Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (determining that employment discrimination testers have standing to sue and noting the public benefit in uncovering and eliminating discriminatory practices); cf. Harty v. Simon Prop. Grp., L.P., 428 Fed.Appx. 69, 70 (2nd Cir. 2011) (affirming standing when plaintiff plans to return to facility both as patron and tester). The Supreme Court briefly addressed the issue within the scope of the Fair Housing Act, summarizing that if a tester has "suffered injury in precisely the form the statute was intended to guard against," then regardless of the motivation behind bringing the suit, an injury has occurred. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).

Medina admitted in his complaint that he is a "tester" whose objective is to discover ADA violations within public accommodations, after which he frequently proceeds with litigation. See Docket No. 1 at p. 3. In this capacity he intends to "visit the premises annually to verify its compliance or non-compliance with the ADA." Id. Additionally, Medina alleges repeatedly that he intends to return to the bakery to "avail himself of the goods and services" as a customer. See Docket No. 1 at pp. 2, 7, 13, 19. Consequently, Medina's plans to return to the defendants' bakery as both a patron and tester establish a likelihood of future harm as long as the bakery remains ADA non-compliant. The Court is satisfied that Medina has alleged sufficient facts in the complaint to demonstrate that he has suffered an injury in...