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Kennedy v. Puleio Enterprises, LLC

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

June 15, 2017

PATRICIA KENNEDY, Plaintiff,
v.
PULEIO ENTERPRISES, LLC; and MELO'S ITALIAN RESTAURANT, Defendants.

          ORDER

          ROY B. DALTON JR. United States District Judge

         In the instant action, Defendants move to dismiss a discrete allegation of Plaintiff's Complaint (Doc. 1) under Federal Rule of Civil Procedure 12(b)(6). (Doc. 19 (“MTD”).) Plaintiff responded on May 24, 2017.[1] (Doc. 22.) For the reasons set forth below, the MTD is due to be granted.

         I. Procedural History

         Plaintiff brings this lawsuit for violations of the Americans with Disabilities Act (“ADA”) and the Florida Accessibility Code (“FAC”). (Doc. 1 (“Complaint”).) Plaintiff seeks injunctive relief for architectural barriers that she encountered at Defendants' property (“Property”) during a visit in 2016. (Id. ¶¶ 16, 38, 45). Specifically, Plaintiff- who uses a wheelchair to ambulate-claims that she was unable to access the parking lot, the path of travel from the parking lot to the main entrance, and the bathroom at the Property (“Barriers”). Because the Property is a place of public accommodation, Plaintiff contends Defendants are required to remove architectural barriers to the extent removal is readily achievable. (Id. ¶ 12).

         The Complaint also alleges that the listed Barriers “may not be an exclusive list of Defendants' ADA and FAC violations because Plaintiff was unable to access and assess all areas of the [Property] due to the architectural barriers encountered.” (Id. ¶ 27). So, Plaintiff explains that her representatives will need to conduct an on-site inspection to compile a complete list of the ADA and FAC violations (id.)-leaving open the possibility that her claims may include additional barriers not yet known (“Unknown Barriers”).

         In its MTD, Defendants argue that, to the extent Plaintiff attempts to reserve the right to assert new violations based on a forthcoming inspection, the portion of her Complaint based on Unknown Barriers is due to be dismissed. (Doc. 19, p. 3.) The MTD has been fully briefed (See Doc. 22) and is now ripe for the Court's adjudication.

         II. Analysis

         Presented as a MTD for failure to state a claim, Defendants' argument actually attacks Plaintiff's standing and, thus, the Court's subject matter jurisdiction. True enough, many courts have construed attacks on ADA claims that allege unknown or unencountered violations as attacks on the plaintiff's standing. This construction is premised on the rationale that “[w]ithout actual knowledge of barriers, [a] [p]laintiff has not suffered an ‘injury in fact' which establishes standing at the time of filing the complaint.”[2] Norkunas v. Seahorse NB, LLC, 720 F.Supp.2d 1313, 1319 (M.D. Fla. 2010), aff'd, 444 F. App'x 412, 419 (11th Cir. 2011) (holding that barriers within an accessible motel room did not constitute discrimination against the plaintiff because he did not encounter them).[3] Other courts in this Circuit have similarly found that architectural barriers alleged in an ADA complaint must be “limited to those barriers that [plaintiff] experienced or was aware of at the time of the filing of the complaint.” Access for the Disabled, Inc. v. First Resort, Inc., No. 8:11-cv-2342-T-30EAJ, 2012 WL 2917915, at *5 (M.D. Fla. July 17, 2012).[4] This Court agrees.

         Plaintiff's speculation about violations she might encounter upon further assessment does not establish standing to challenge Unknown Barriers. Defendants' MTD is due to be granted.

         III. Conclusion

         Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants' Motion to Dismiss and Incorporated Memorandum of Law (Doc. 19) is GRANTED.
2. The portion of the Complaint that asserts ADA violations based on unidentified barriers at the Property (Doc. 1, ...

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