Kennedy v. Las Delicias Cafeteria & Bakery, Inc. et al

MOTION for summary judgment against Defendant DOLGENCORP

M.D. Fla.October 3, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA PAT KENNEDY, Plaintiff, CASE NO. 2:15-cv-00596-FtM-99MRM v. DISPOSITIVE MOTION DOWNTOWN PROPERTY INVESTMENT LLC, Defendant. ____________________________________/ PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT DOLGENCORP AND MEMORANDUMOF LAW IN SUPPORT Plaintiff, PAT KENNEDY, by and through undersigned counsel and pursuant to Fed. R. Civ. P. 56, hereby moves for Summary Judgment against Defendant DOLGENCORP. Plaintiff hereby incorporates the Statement of Undisputed Material Facts filed in support thereof and further states as follows: INTRODUCTION PAT KENNEDY must use a wheelchair to ambulate and is a disabled person within the meaning of the Americans with Disabilities Act, 42 U.S.C. Section 12181, et seq. (“ADA”). Plaintiff visited the place of public accommodation known as Lochmoor Plaza, 4150 Hancock Bridge Pkwy No., Ft. Myers, FL 33903 (the “property”). On said occasion, Plaintiff encountered barriers to access which discriminated against her on the basis of her disability. These barriers involved, but were not limited to, inaccessible paths of travel, curb approaches and ramps; insufficient and non-compliant disabled parking spaces, inaccessible doorways, non-complaint restrooms and check-out counters, and as a widespread failure to maintain accessible features to Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 1 of 13 PageID 134 ensure that they remain readily accessible to and usable by disabled persons. Indeed, Plaintiff’s expert report details Defendant’s flagrant failure to maintain the facility to ensure that it remains readily accessible to and usable by disabled persons. Plaintiff’s ADA expert, Carlos Herrera, confirmed that those ADA violations indeed exist at the Property. Clearly then, Defendant is liable for the ADA violations existing at its place of public accommodation because it leases a public accommodation containing ADA defined barriers to access that deny Plaintiff use and enjoyment of its facility. There being no genuine issue of material fact as to the Defendant’s liability, Plaintiff is entitled to summary judgment as a matter of law. Plaintiff respectfully requests that this Court enter Judgment against Defendant; require the parties to submit a schedule for Defendant’s property to be brought into compliance with the ADA and keep it properly maintained and accessible; and order Defendant to pay Plaintiff’s attorney fees, costs, expert fees and litigation expenses incurred in pursuing the case. MEMORANDUM OF LAW A. STATUTORY BACKGROUND OF ADA LEGISLATION Congress enacted the Americans with Disabilities Act (“ADA”) in 1990 to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. §12101(a)(2); See also 42 U.S.C. § 12101(a)(3) ("[Discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, - 2 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 2 of 13 PageID 135 communication, recreation, institutionalization, health services, voting, and access to public services"). Congress noted that the many forms such discrimination takes include "outright intentional exclusion" as well as the "failure to make modifications to existing facilities and practices." 42. U.S.C. § 12101(a)(5). After thoroughly investigating the problem, Congress concluded that there was a "compelling need...[for a] clear and comprehensive national mandate" to eliminate discrimination against disabled individuals, and to integrate them "into the economic and social mainstream of American life." S. Rep. No. 101-116, p. 20 (1989); H.R. Rep. No. 101-485, pt. 2, p. 50 (1990), U.S.Code Cong. & Admin.News 1990, pt. 2, pp. 303, 332. In the ADA, Congress provided that broad mandate. See 42 U.S.C. § 12101(b). In fact, one of the Act's "most impressive strengths" has been identified as its "comprehensive character.” Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess., 197 (1989) (statement of Attorney General Thornburgh). Accordingly the Act has been described as "a milestone on the path to a more decent, tolerant, progressive society." Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (KENNEDY, J., concurring). To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III). The provisions of Title III are at issue in this case. Title III of the ADA prescribes, as a "[g]eneral rule:" - 3 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 3 of 13 PageID 136 "No 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), operates a place of public accommodation." 42 U.S.C. § 12182(a). B. CAUSES OF ACTION FOR ARCHITECTURAL BARRIERS IN PUBLIC ACCOMMODATIONS Congress considered the importance of ensuring that private businesses and the ADA were compatible. See Hearing on S. 933 Before Committee on Small Business, 101st Legis., 2d Reg. Sess. (1990). To strike a balance between the interests of the disabled and the legitimate concerns of private business, the ADA delayed its effective date to "permit adequate time for businesses to become acquainted with the ADA's requirements and to take the necessary steps to achieve compliance.” Statement on Signing the Americans with Disabilities Act of 1990 at 2 (July 26, 1990). Further, the ADA was crafted to "give the business community the flexibility to meet the requirements of the Act without incurring undue costs." Id. at 1-2. The modest requirement of "readily achievable" barrier removal on existing facilities "allows for minimal investment with a potential return of profit from use of disabled patrons, often more than justifying the small expense." S. Rep. No. 101-116, at 66 (1989). If a place of public accommodation fails to remove architectural barriers, the enforcement provisions of the ADA provides a private right of action. 42 U.S.C. § 12188(a)(1). A private action under Title III is available to any person who is "being subjected to discrimination on the basis of disability" or who has "reasonable grounds for believing that such person is about to be subjected - 4 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 4 of 13 PageID 137 to discrimination . . . ."1 42 U.S.C. § 12188(a)(1). The ADA does not require "a person with a disability to engage in a futile gesture if such [a] person has actual notice that a person or organization . . . does not intend to comply" with the ADA. Id. Title III incorporates the remedies and procedures of Title II of the Civil Rights Act of 1964. See 42 U.S.C. § 12188(a)(1). The court may order injunctive relief which includes an order to make a facility "readily accessible." 42 U.S.C. § 12188(a)(2). Or, where appropriate, injunctive relief may include "requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods . . . ." Id. "There is a private right of action for enforcement of [the ADA] regulations to require [private] entities to implement nondiscriminatory standards and proceed to make necessary modifications." Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1997 WL 595310, *4 (S.D.Cal. 1997) (private right of action exists for enforcement of Title II regulations to require public entities to make modifications); See 42 U.S.C. § 12188 (private right of action exists for enforcement of Title III against private entities). C. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY PURSUANT TO FED. R. CIV. P. 56 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, “summary judgment is appropriate when the pleadings, depositions, affidavits, if any, show that there is no genuine issue 1 The ADA allows a person to sue on behalf of a disabled individual upon "reasonable grounds" that said disabled individual will be subjected to discrimination only if the violation is related to "new construction and alterations." See 42 U.S.C. § 12183. - 5 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 5 of 13 PageID 138 as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. The party moving for summary judgment must first demonstrate the absence of a genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A ‘genuine issue’ exists when there is sufficient evidence to permit a reasonable jury to find for the nonmoving party. See, Bourque v. FDIC, 42 F.3d 704 (1st Cir. 1994). A ‘material fact’ is one that has the potential to affect the outcome of the suit under applicable law. Id. Additionally, a party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The nonmovant “cannot create a genuine issue of fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985); See also O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308 (1996). “When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial.” See Celotex at 324. See also, Anderson. In the case at bar, Defendant admits that its property is a place of “public accommodation” which must be brought into compliance with the ADA. However, violations found on the Defendant’s property demonstrate that the property is not ADA compliant. Because Defendant admits that it leases the property and the existence of ADA violations there is no genuine issue of material fact as to the Defendant’s liability under the ADA. Therefore, Plaintiff should be granted summary judgment as a matter of law on the issue of liability. - 6 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 6 of 13 PageID 139 D. DEFENDANT HAS ADMITTED THE ESSENTIAL ELEMENTS ESTABLISHING ADA LIABILITY Defendant admits that: a) the provisions of the ADA and certain of the Federal Regulations enacting the ADA, 28 CFR Part 36, apply in this action; b) Defendant is the owner/operator/ lessor or leases from the owner of the place of public accommodation described in the Complaint; and c) Defendant's property is a place of public accommodation within the meaning of the ADA. Further, Defendant cannot rebut that: a) its property contains barriers to access as defined under the ADA; b) the removal of any barriers to access on Defendant's property would not create an undue hardship on the Defendant; and c) the removal of any barriers to access on Defendant's property is readily achievable, it cannot refute that such is the case, especially where Plaintiff’s expert has documented the violations and the Regulations interpreting the ADA clearly state that the accommodations Plaintiff seeks are per se readily achievable. As such, Defendant admits all the essential elements of this ADA action and Plaintiff has established a prima facie case. E. DEFENDANT’S PROPERTY IS A PLACE OF PUBLIC ACCOMMODATION UNDER THE ADA Title III of the ADA provides in pertinent part that “[n]o individual shall be discriminated against on the basis of disability2 in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation...” 42 U.S.C. 2 The ADA defines ‘disability’ to mean, with respect to an individual: a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment. See 42 U.S.C. §12102(2). - 7 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 7 of 13 PageID 140 §12182(a). A ‘public accommodation’ is defined by the ADA as including stores, shopping plazas and malls. 42 U.S.C. §12181. In the instant claim, Defendant admits that the property is a place of public accommodation within the purview of the ADA and that it contains barriers to accessibility that impede on Plaintiff’s full and equal enjoyment of Defendant’s property. Therefore, these barriers discriminate against the Plaintiff in violation of the ADA, and there is no genuine issue of material fact as to the existence of barriers on Defendant’s property. F. DEFENDANT, AS LESSEE OF A PLACE OF PUBLIC ACCOMMODATION, IS LIABLE FOR NONCOMPLIANCE WITH THE ADA Liability for noncompliance with the ADA is imposed upon “any person who owns, leases (or leases to), or operates a place of public accommodation” that discriminates against an individual on the basis of disability. 42 U.S.C. §12182. 3 In the case at bar, Defendant has admitted that it leases the subject property. Since Defendant’s property, as place of public accommodation, contains numerous barriers to access for disabled individuals, it is in violation of the ADA. Therefore, liability for such ADA noncompliance on Defendant’s property must be imposed upon the Defendant. 3 Discrimination includes the failure to remove ‘architectural barriers’ in existing facilities where such removal is ‘readily achievable.’ 42 U.S.C. §12182(b)(2)(A)(iv). Where an entity can demonstrate that the removal of a barrier is not readily achievable, discrimination also includes the failure to make such facilities available through alternative methods if such methods are readily achievable. 42 U.S.C. §12182(b)(2)(A)(v). - 8 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 8 of 13 PageID 141 In conclusion, the Defendant, as owner or operator of a place of public accommodation, is liable for noncompliance with the ADA and therefore, there is no genuine issue of material fact as to the Defendant’s liability. G. PLAINTIFF HAS THE REQUISITE STANDING TO BRING SUIT TO ENFORCE COMPLIANCE UNDER THE ADA In order to state a claim under the ADA, a Plaintiff must allege that she “(1) has a disability; (2) is a qualified individual; and (3) was unlawfully subject to discrimination because of [her] disability.” See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278,1285 (11th Cir. 1997). Standing requires meeting three elements under Article III, § 2: (A) injury in fact to the Plaintiff; (B) causation of that injury by the Defendant’s complained-of conduct; and (C) a likelihood that the request for relief addresses that injury. See generally, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In compliance with the requirements of Lujan, Plaintiff qualifies as an individual with a disability because she must use a wheelchair to ambulate. Plaintiff visited the property which forms the basis of this lawsuit and plan to return to the property to avail herself of the goods and services offered to the public at the property, but for its non-compliance. She therefore has a realistic, credible, existing and continuing threat of discrimination from Defendant’s non-compliance with the ADA with respect to this property. Therefore, Plaintiff has alleged an injury-in-fact, shown Defendant’s conduct to be the cause of the injury, and has shown the relief requested will address the injury. - 9 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 9 of 13 PageID 142 Pursuant to Lujan, Plaintiff is required to show she has suffered an “‘injury-in-fact’ that is concrete and particularized and actual or imminent; the injury is very traceable to the callous action of the Defendant; and it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision.” Id. at 561. In the case at bar, Plaintiff has shown a concrete and imminent injury that is traceable to the Defendant’s actions. Plaintiff visited the property and desires to avail herself of the goods and services available at the Defendant’s property. In its current form, the Defendant’s property is not compliant with the ADA and is therefore inaccessible to persons with physical disabilities. Therefore, the Defendant’s removal of the barriers to access that are not compliant with the ADA will redress the Plaintiff’s injury. H. DEFENDANT HAS FAILED TO COMPLY WITH THE ADA Defendant is required to remove the existing architectural barriers to the physically disabled when such removal is readily achievable for its place of public accommodation that has existed prior to January 26, 1992; 42 USC §12182(b)(2)(A)(IV), 28 CFR §36.304(a); in the alternative, if there has been an alteration to Defendant’s place of public accommodation, since January 26, 1992, then the Defendant is required to insure, to the maximum extent feasible, that the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. 42 USC 12183(a)(2), 28 CFR, §36.402; and, finally, if the Defendant’s facility is one which was designed and constructed for first occupancy, subsequent to January 26, 1993, as defined in 28 CFR §36.401, then the Defendant’s facility must be readily accessible to and usable - 10 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 10 of 13 PageID 143 by individuals with disabilities, as defined by the ADA, except where structurally impracticable. 42 USC 12183(a)(1), 28 CFR §36.401. In the subject case, it is undisputable that Defendant is subject to the readily achievable barrier removal standards of Title III of the ADA. 42 U.S.C.A. 12182(b)(2)(A)(IV), 28 CFR §36.304(a). 42 USCA 12182(b)(2)(A)(X), specifies that discrimination includes, “failure to remove architectural barriers...where such removal is readily achievable”. The statute provides further that “when entity can demonstrate that the removal of a barrier...is not readily achievable, (discrimination includes) a failure to make such goods, services and facilities available through alternative methods, if such methods are readily achievable”. 42 USC §12182(b)(2)(A)(V). The ADA names four (4) non exclusive factors to be taken into account to determine if a change is readily achievable: (A) The nature and cost of the action needed ...; (B) The overall financial resources of the facility, or facilities involved in the action; (C) The number of persons employed at such facilities; (D) The effect on expenses and resources, or the impact otherwise of such action on the operation of the facility; (E) The overall resources of the covered entity; (F) The overall size of the business of the covered entity with respect to its number of employees; the number, type and location of its facility; and, (G) Type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity; the geographic separateness, administrative relationship of the facility, or facilities in question to the covered entity. - 11 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 11 of 13 PageID 144 See 42 USC §12181(9)(A)(B)(C) and (D). Title III is silent as to who bears the burden of proving that removal of an architectural barrier is, or is not, readily achievable. Court’s addressing the issue have generally found that §12182(b)(2)(A)(IV), read together with §12182(b)(2)(A)(V), provides an affirmative defense with the facility. See Colorado Cross Disability Coalition v. Hermanson Family, LTD., 264 F.3d 999, 1002, (10th Cir. 2001); Pascuiti v. New York Yankees , 87 F. Supp. 2d. 221 (S.D. NY 1999). The preamble to the regulations itself make specific reference to the “readily achievable defense” (See 28 CFR Part 36 App.B at 688(2002)). While labeling the readily achievable standard an “affirmative defense,” courts have nevertheless held that Plaintiff first bears the initial burden, requiring the Plaintiff to present evidence tending to show the suggested barrier removal is readily achievable. If the Plaintiff does so, the Defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable. See, e.g.Gathright-Dietrich v. Atlanta Landmarks, Inc. 452 F.3d 1269 (11th Cir. 2006); Colorado Cross, 264 F.3d 1002; Pascuiti; supra; Access for Disabled, Inc. v. Caplan, Case Number 01-7310-CIV-Jordan (SD Fla. 2002). In Colorado Cross,it was held that a Plaintiff must initially present evidence intending to show that the suggested removal is readily achievable under the particular circumstances. If Plaintiff does so, Defendant then bears the ultimate burden of persuasion that the barrier removal is not readily achievable. Id., at 1002-03. As set forth in Caplan, supra: [t]he Plaintiffs have met their initial burden of showing that their proposed barrier removals are readily achievable. They submitted an expert’s report detailing the violations at the Central Medical Plaza. For each violation listed, the report contains specific recommendations for removal, outlining the method and cost of - 12 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 12 of 13 PageID 145 implementation. For example, after noting that there is no accessible route from the street or the public sidewalk, the report states that “(t)he cost to remove the barrier identifying in paragraph 1, by installing a concrete path at the planter, which is 5' wide, and to add strapping to the building, is $500.00, (affidavit of Thomas Ricci at 4)...The Plaintiffs, for each violation, have provided a specific plan which is readily achievable, and a precise cost estimate. They, therefore, have satisfied their initial burden. CONCLUSION Because she has satisfied every element of a claim for injunctive relief under the ADA and left no genuine issue of material fact for the Court’s determination, Plaintiff requests that Summary Judgment be entered in her favor and against Defendant DOLGENCORP and that the Court award her her attorney’s fees, and litigation expenses, including expert fees and costs. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically on this October 3, 2016 on counsel of record. By: /s/ Jeannette E. Albo Jeannette E. Albo, Esq. Fla. Bar No. 0017736 Of Counsel Thomas B. Bacon, P.A. 9444 S.W. 69th Ct. Miami, FL 33156 ph. (305) 502-4593 jalbo@bellsouth.net Thomas B. Bacon, Esq. Thomas B. Bacon, P.A. 644 No. McDonald St. Mt. Dora, FL 32757 Ph. 954-478-7811 tbb@thomasbaconlaw.com - 13 - Case 2:16-cv-00378-SPC-CM Document 49 Filed 10/03/16 Page 13 of 13 PageID 146