United States District Court, S.D. Florida
ORDER AND OPINION DENYING DEFENDANT CND3. INC.'S
MOTION TO DISMISS
M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court upon Defendant CND3, Inc.'s
("CND3") Motion to Dismiss ("Motion"),
filed on February 9, 2017. (DE 18). Plaintiff James Mears
("Plaintiff) filed a Response in opposition on February
17, 2017 (DE 20), to which CND3 replied on February 24, 2017
(DE 21). For the reasons stated below, the Motion is denied.
is a disabled individual within the meaning of the Americans
with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
§ 12101, et seg., and resides in Florida.
(Amended Complaint, hereinafter "Complaint" or
"Compl., " at ¶ 2). CND3 is a Florida
corporation that operates a pharmacy, known as the Robalo
Pharmacy (the "pharmacy"), at 228 Federal Highway,
Lake Park, FL 33403. (Id. at ¶ 6). The pharmacy
is one of several businesses located within a parcel of
property (the "property") (id. at ¶
2) owned and operated by Defendant Michael D. Mason
("Mason", together with CND3,
"Defendants") (id. at ¶ 7). CND3 is
alleged to be "the lessee, sub-lessee, lessor and/or
operator of the real property and improvements which are the
subject of this action." (Id. at¶6).
Plaintiff is a customer of the pharmacy. (Id.
Complaint alleges that the pharmacy and property to which it
belongs are both public accommodations and service
establishments, as defined by the ADA. (Id. at
¶ 12). Further, according to the Complaint, neither is
in compliance with the ADA or its Accessibility Guidelines
("ADAAG"). (Id. at ¶ 14). To
demonstrate Defendants' lack of compliance, the Complaint
includes a list of violations that hinder Plaintiffs access
to units within the property. (Id. at ¶ 18). Of
these purported violations, only three concern unit (228),
where the pharmacy is located. (Id. at ¶¶
18d.-f.). In addition, all three relate particularly to the
route from the "parking space near [the pharmacy]"
to the pharmacy itself. Plaintiff does not allege that the
interior of the pharmacy contains any specific deficiencies
under the ADA or ADAAG. Conversely, he does allege that the
interior of a certain "thrift store" on the
property features violations of the ADAAG. (A/, at ¶
seeks to dismiss the Amended Complaint pursuant to
Fed.R.Civ.P. 12(b)(6). As grounds for dismissal, CND3
contends that none of alleged ADA violations can be
attributed to it, since nothing in the Complaint describes
barriers to Plaintiff transacting business as a customer
"at the [pharmacy]." (DE 18 at 2). As more fully
fleshed out in its Reply brief, CND3's theory turns on
the claim that Plaintiff does not sufficiently allege its
control over the parking lot or thrift store, which are the
only express targets of the asserted ADA violations.
motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of a complaint. See Fed. R. Civ. P.
12(b)(6). In assessing the legal sufficiency of a
complaint's allegations, the Court is bound to apply the
pleading standard articulated in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint
"must.. . contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting
Twombly, 550 U.S. at 570). "Dismissal is
therefore permitted when on the basis of a dispositive issue
of law, no construction of the factual allegations will
support the cause of action." Glover v. Liggett
Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)
(internal quotations omitted) (citing Marshall Cty. Bd of
Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993)).
reviewing a motion to dismiss, a court must construe
plaintiffs complaint in the light most favorable to plaintiff
and take the factual allegations stated therein as true.
See Erickson v. Pardus, 551 U.S. 89, 93 (2007);
Christopher v. Harbury, 536 U.S. 403, 406 (2002);
Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). However,
pleadings that "are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations." Iqbal, 556
U.S. at 678; see also Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252, 1260 (11th Cir. 2009) (stating that an
unwarranted deduction of fact is not considered true for
purpose of determining whether a claim is legally
a plaintiff is not required to detail all the facts upon
which he bases his claim. Fed.R.Civ.P. 8(a)(2). Rather, Rule
8(a)(2) requires a short and plain statement of the claim
that fairly notifies the defendant of both the claim and the
supporting grounds. Twombly, 550 U.S. at 555-56.
However, "Rule 8(a)(2) still requires a 'showing,
' rather than a blanket assertion, of entitlement to
relief." Id. at 556 n.3. Plaintiffs
"obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555
(citation omitted). "Factual allegations must be enough
to raise [plaintiffs] right to relief above the speculative
level, on the assumption that all of the allegations in the
complaint are true." Id.
to Title III of the ADA, "[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). A
"public accommodation" discriminates against the
disabled by, inter alia, "fail[ing] to remove
architectural barriers ... in existing facilities . . . where
such removal is readily achievable." 42 U.S.C. §
12182(b)(2)(A)(iv). In alleging that the existing design of
the access isle and ramp leading from the parking space
"near" the pharmacy to the pharmacy itself is a
barrier to entry, Plaintiff has facially stated a claim that
his statutory right has been invaded. Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013)
(explaining that when a plaintiff "encounters
architectural barriers that discriminate against him on the
basis of his disability, " he "has suffered injury
in precisely the form the statute was intended to guard
against") (citations omitted).
observes, Plaintiff does not allege that CND3 owns, leases,
or operates "the entire real property" (DE
21 at 3) (emphasis in original), only that it is "the
lessee, sub-lessee, lessor and/or operator of the real
property and improvements which are the subject of this
action." (Compl. at ¶ 6). In CND3's view, it is
necessary for an ADA plaintiff to plead that a defendant
exercises a sufficient level of control over the specific
architectural features at issue. Otherwise, "an
individual could use 42 U.S.C. § 12182(a) as a method of
randomly suing every commercial tenant that is leasing a
space in a building or structure for an alleged minor ADA
violation in the parking lot adjacent to the building when
the owner of said building control the use and improvement to
the parking lot." (DE 21 at 3).
that, had Plaintiff pled CND3 was a lessee only of Unit 228,
the Amended Complaint would be inadequate. Although I am not
aware of any Eleventh Circuit opinion confronting this issue,
the Ninth Circuit has persuasively explained that a
commercial lessee cannot be held liable for architectural
barriers, and in particular, parking lot spaces, "over
which it has no control." Kohler v. Bed Bath &
Beyond of Cal, LLC,780 F.3d 1260, 1264 (9th Cir. 2015).
That is because the terms of § 12182(a) require that a
"public accommodation" either bear a formal
property relationship to the architectural barrier or
"operate" it - a verb which implies a level of
control or direction over the barrier's functioning.
Pickern v. Pier I Imports (U.S.), Inc., 457 F.3d
963, 966 (9th Cir. 2006). A tenant "has no preexisting
control of a property, " and "lacks any legal
relationship" to it except as defined by the terms of a
lease. Kohler, 780 F.3d at 1264. As a result, a
commercial tenant's ADA obligations ...