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Norman Hoewischer v. Edmund Terry

November 10, 2011



Plaintiff Norman Hoewischer brought suit pursuit to Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et. seq., claiming that a shopping center owned by Defendant Edmund Terry fails to provide reasonable access to individuals with disabilities. Doc. 5 This case is before the Court on Hoewischer's Motion for Partial Summary Judgment on Defendant's First Affirmative Defense. Doc. 16. This motion presents the question of whether a landlord may use the terms of his lease to avoid responsibility for his property's alleged violations of the ADA. The Court finds that the answer to this question is no.


Title III of the ADA provides:

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), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

The ADA contains a number of requirements for places of public accommodation, and a failure to comply with these requirements is often defined as discrimination. Most relevant to this case, the ADA provides that discrimination includes "a failure to remove architectural barriers . . . where such removal is readily achievable." § 12182(b)(2)(A)(iv). If a place of public accommodation is found to violate this provision, a court may issue an injunction requiring the defendant "to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities." § 12188(a)(2). A prevailing plaintiff is not entitled to damages, but he may recover reasonable attorneys' fees. §§ 12188(a), 2000a-3(b).


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The burden of demonstrating the satisfaction of this standard lies with the movant, who must present 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' that establish the absence of any genuine, material factual dispute." Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1252-53 (11th Cir. 2003).


The Amended Complaint alleges that Hoewischer, who qualifies as an individual with disabilities under the ADA, "encountered architectural barriers" when visiting a shopping center owned by Terry. Doc. 5 at 2. Hoewischer further alleges that these barriers "endangered his safety, and have denied him the full and equal access to Defendant's property." Id.

In his first affirmative defense, Terry alleges that the leases between him, as landlord, and his tenants, who are not parties to this litigation, "provide that compliance with the ADA shall be the lease obligation of the tenants." Doc. 13 at 2. Terry thus asserts that only his tenants may be liable for the shopping center's alleged violations.

Hoewischer asks the Court to grant summary judgment against Terry's first affirmative defense and rule as a matter of law that Terry is liable under the ADA for any violations at the shopping center regardless of the terms of the leases. Doc. 16. According to Hoewischer, the lease may only be used to allocate the cost of compliance between the landlord and tenants after the conclusion of this litigation. Id.

The issue of whether a landlord may shift its legal responsibility to comply with the ADA to its tenants was comprehensively addressed by the Ninth Circuit in Botosan v. Paul McNally Realty, 216 F.3d 827, 832-34 (9th Cir. 2000). The Ninth Circuit found that, because the ADA applies to "any person who owns, leases (or leases to), or operates a place of public accommodation," see § 12182(a), "[t]he express terms of the ADA hold a landlord liable for noncompliance." Botosan, 216 F.3d at 832. The court also noted that the ADA prohibits discrimination that is conducted "directly, or through contractual, licensing, or other arrangements." Id. at 833 (quoting § 12182(b)(1)(A)(I)). After analyzing the legislative history of these provisions, the court concluded that the congressional intent "confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract." Id.

In Botosan, the Ninth Circuit also found that its interpretation of the ADA was supported by that of the Department of Justice ("DOJ"). A ...

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