Rodriguez v. Investco, L.L.C.

• Decision Date: 24 February 2004
• Docket Number: No. 6:02-cv-916-Orl-31KRS.,6:02-cv-916-Orl-31KRS.
• Citation: 305 F.Supp.2d 1278
• Parties: Jorge Luis RODRIGUEZ, Plaintiffs, v. INVESTCO, L.L.C., d/b/a Sandy Lake Towers, Defendant.
• Court: U.S. District Court — Middle District of Florida

Page 1278

305 F.Supp.2d 1278

Jorge Luis RODRIGUEZ, Plaintiffs, v. INVESTCO, L.L.C., d/b/a Sandy Lake Towers, Defendant.

No. 6:02-cv-916-Orl-31KRS.

United States District Court, M.D. Florida, Orlando Division.

February 24, 2004.

William Nicholas Charouhis, Charouhis & Associates, P.A., Daniel Ruiz, Miami, FL, Todd W. Shulby, Law Office of Todd W. Shulby, P.A., Davie, FL, for Plaintiffs.

Richard W. Epstein, Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger Lauderdale, FL, Michael E. Marder, Myrna L. Maysonet, Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Orlando, FL, for Defendant.

MEMORANDUM OPINION

GREGORY A. PRESNELL, District Judge.

This case involves alleged violations of Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12181, et seq. The Court held a bench trial on January 9, 2004, after which the parties submitted post-trial memoranda. The Court submits the following findings of fact and conclusions of law, pursuant to Federal Rule of Civil Procedure 52.

I. The Parties.

Plaintiff, Jorge Luis Rodriguez, suffered a diving accident in 1985, which rendered him a quadriplegic. He is wheelchair-bound and has limited use of his arms and hands. Until recently, he lived and worked in Miami. Approximately one year ago, he moved to Deltona, Florida, and is currently unemployed. During the past few years, Mr. Rodriguez has filed almost 200 lawsuits against various establishments, alleging violations of the ADA. In most of these cases, Mr. Rodriguez has been represented by the same counsel, William Charouhis.

Defendant, Investco, LLC, is a Florida limited liability company formed to acquire a hotel known as Sandy Lake Towers ("the Facility").¹ Defendant's parent, Westgate Resorts, Ltd., is a time-share developer and operator. Defendant acquired title to the Facility in July 2002, by foreclosing a mortgage given by the prior owner who was in bankruptcy. Defendant acquired the Facility to convert it into a time-share community and thereafter manage it.

II. Findings of Fact

A. The Facility

The Facility, now known as Westgate Palace, is comprised of two 18-floor towers with floors numbered 1 through 19 (excluding 13), an intervening clubhouse, and surrounding grounds. Tower No. 1 is currently being renovated. Tower No. 2 is vacant and is not involved in this dispute. There are a total of 204 guest rooms in Tower No. 1.

Shortly after its acquisition of the Facility, Defendant hired an architect, James Garritano, to produce plans and specifications for renovation of floors 2 through 19 in Tower No. 1.² Other professionals are being used to address renovation of the Facility's common areas and parking lot. Defendant also hired an ADA consultant, Diana Ibarra, to assist with ADA compliance.

Renovation of Tower No. 1 is proceeding in two phases: (1) the top floors 10 through 19 and (2) the bottom floors 2 through 9. At trial, Defendant produced plans for two of the floors in phase one: floors 12 and 15. Defendant has obtained permits to renovate Floor 15 and has begun doing so. During phase one of the renovation project, the top 9 floors have been vacated. Rooms on the lower floors, however, are being rented during the renovations. Once the renovations are complete, Defendant claims that the Facility will be fully ADA compliant.

B. Plaintiff's Visit and Plans to Return

Plaintiff stayed at the Facility in May 2002, before Defendant owned or operated it. Plaintiff wished to stay two nights but stayed only one, claiming that he was not able to enjoy the Facility because of barriers he encountered. Accordingly, he called his attorney, who inspected the property on August 3, 2002. On August 5, 2002, the attorney advised Plaintiff that the hotel was not ADA compliant, and thus filed this lawsuit four days later.

At trial, Plaintiff testified that he wished to return to the Facility for another visit, and had made a reservation for the nights of June 22 and 23, 2004. This reservation was made two days before the trial commenced. Plaintiff could not explain why he would choose to stay at the Facility, when other nearby hotels admittedly meet his needs. (Doc. 78, Tr. at 120-121).³

C. The Lawsuit

Plaintiff filed this lawsuit on August 9, 2002, against the Facility's former owner who, at the time was in bankruptcy.⁴ Shortly thereafter, Plaintiff learned that Defendant had acquired the Facility; and on September 17, 2002, filed a motion for leave to amend the complaint.⁵ On September 26, 2002, Plaintiff filed his Amended Complaint against Defendant (Doc. 9). Since filing his Amended Complaint, Plaintiff has been aware that Defendant intends to substantially renovate and convert the Facility into a time-share operation.

D. The Renovations and ADA Compliance

Defendant's architect testified that he had been continuously involved in this renovation project since the fall of 2002. One aspect of the project is to make the Facility ADA compliant. In this regard, Defendant is providing for a total of ten handicap-accessible units, seven of which are fully ADA complaint and three with roll-in showers. The parties agree that 10 units will satisfy the numerical requirement under the ADA guidelines. According to Defendant's architect, these units, when completed, will comply with the ADA.

Plaintiff called an expert witness, Thomas Ricci, who introduced a report (Pl.Ex.1) listing the deficiencies inherent at the time of Defendant's acquisition.⁶ Mr. Ricci opined that all of these deficiencies are capable of correction (without major demolition) in order to comply with the ADA. Indeed, he admitted that, except for a few minor exceptions,⁷ the renovation plans submitted by Defendant would achieve this result.⁸ Defendant's expert also confirmed that the on-going and planned renovations would cure any ADA-related problems.

III. Legal Analysis

A. A Cottage Industry is Born.

Congress enacted the ADA on June 26, 1990. Its stated purposes are:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

42 U.S.C. § 12101(b).

The ADA provides, in pertinent part, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of ... facilities ... or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Id. § 12182(a). The ADA further specifically defines acts and omissions that constitute unlawful discrimination. See id. §§ 12182(b)(2)(A), 12183(a).

Congress did not, however, create any sort of administrative process to ensure compliance with the ADA's public accommodation provisions. Rather, the ADA contains a private right of action, id. § 12188(a), and right of action for the Attorney General, id. § 12188(b). Although the ADA's private remedies are limited to injunctive relief, id. § 12188(a), the ADA, nevertheless, contains an incentive to private litigation — an attorney's fee provision.⁹

This statutory scheme has resulted in an explosion of private ADA-related litigation. For example, in this District alone, there have been hundreds of Title III cases filed in the past three years. These cases have been filed by a relatively small number of plaintiffs (and their counsel) who have assumed the role of private attorneys general.¹⁰

This lawsuit is a case in point. Here, suit was filed less than a week after Plaintiff's counsel verified the ADA deficiencies. There was no effort to communicate with the property owner to encourage voluntary compliance,¹¹ no warning and no offer to forbear during a reasonable period of time while remedial measures are taken.

Why would an individual like Plaintiff be in such a rush to file suit when only injunctive relief is available? Wouldn't conciliation and voluntary compliance be a more rational solution?¹² Of course it would, but pre-suit settlements do not vest plaintiffs' counsel with an entitlement to attorney's fees. Buckhannon Bd. and Care Home, Inc., v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Moreover, if a plaintiff forebears and attempts pre-litigation resolution, someone else may come along and sue first.¹³ The current ADA lawsuit binge is, therefore, essentially driven by economics-that is, the economics of attorney's fees.¹⁴

B. To Design And Construct Non-Compliant Facilities.

At trial in the instant case, Plaintiff claimed that the Facility is in violation of section 12183(a)(1) of the ADA and that Defendant has, therefore, discriminated against Plaintiff. In this regard, Plaintiff correctly identified an injury-discrimination-that, according to section 12183(a)(1), includes "a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities ..." 42 U.S.C. § 12183(a)(1). Plaintiff, nevertheless, did not (and could not) establish that Defendant committed that form of discrimination.

When the words of a statute are plain, a court should look no further to determine the statute's meaning. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001). In regard to section 12183(a)(1) of the ADA, it is plain that that provision does not create liability that runs in rem. Section 12183(a)(1) defines...