United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion to Dismiss (Doc.
30) filed by the Defendant, Paniccia-Indialantic, LLC
(henceforth, “Paniccia”), and the response in
opposition (Doc. 35) filed by the Plaintiff, Patricia
to the allegations of the Complaint, which are accepted in
pertinent part as true for purposes of resolving the instant
motion, Kennedy has limited use of her hands and is bound to
a wheelchair. (Doc. 1 at 1). Kennedy visited the Indialantic
Center in Brevard County, a “place of public
accommodation” as that term is defined by the Americans
with Disabilities Act, 42 U.S.C. §§ 12101-12183,
12181-12205a (“ADA”). (Doc. 1 at 2, 4). She
encountered architectural barriers that discriminated against
her on the basis of her disability; and she plans to return
to the property “in the near future” to
“avail herself of the goods and services” offered
there. (Doc. 1 at 4-5). “In the alternative, ”
Kennedy asserts, she is a “tester” who monitors
whether places of public accommodation are in compliance with
the ADA. (Doc. 1 at 5).
filed her single-count ADA complaint against Paniccia on
December 23, 2016. (Doc. 1). On September 7, 2107, Paniccia
filed the instant motion, seeking dismissal on the grounds
that Kennedy had failed to state a claim and lacked standing
to pursue her ADA claim. (Doc. 30).
The Americans with Disabilities Act
III of the Americans With Disabilities Act, 42 U.S.C.
§§ 12181-12189 (“Title III”), which
addresses “Public Accommodations and Services Operated
by Private Entities, ” provides that “[n]o
individual shall be discriminated against on the basis of
disability in any place of public accommodation.” 42
U.S.C. § 12182(a). Any person subjected to
discrimination on the basis of disability in violation of
Title III may bring a private action. 42 U.S.C. §
12188(a). Title III defines “discrimination” as,
among other things, “a failure to remove architectural
barriers … in existing facilities … where such
removal is readily achievable.” 42 U.S.C. §
12182(b)(2)(A)(iv). To prevail on a Title III ADA claim, a
plaintiff generally has the burden of proving (1) that he or
she is an individual with a disability; (2) that the
defendant is a place of public accommodation; and (3) that
defendant denied him or her full and equal enjoyment of
goods, services, facilities or privileges offered by the
defendant (4) on the basis of his or her disability.
Schiavo ex rel Schindler v. Schiavo, 358 F.Supp.2d
1161, 1165 (M.D. Fla. 2005). The only relief available to
plaintiffs suing under Title III of the ADA is injunctive
relief. Houston v. Marod Supermarkets, Inc., 733
F.3d 1323, 1329 (11th Cir. 2013).
Standing to pursue an ADA Title III claim
standing under Article III of the Constitution, a plaintiff
must satisfy three elements: First, the plaintiff must have
suffered an “injury in fact” - an invasion of a
legally protected interest that is (a) concrete and
particularized and (b) actual or imminent, rather than
conjectural or hypothetical. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Second, there must
be a causal connection between the injury and the conduct
complained of; that is, the injury must be fairly traceable
to the challenged action of the defendant rather than the
result of independent action of a third party. Id.
And it must be likely, rather than merely speculative, that
the injury will be redressed by a favorable decision.
Id. at 561. The party invoking the jurisdiction of
the federal courts has the burden of establishing each
establish standing when injunctive relief is sought, the
“injury in fact” element requires an additional
showing: In addition to past injury, the plaintiff must
demonstrate a “sufficient likelihood” of being
affected by the unlawful conduct in the future. Wooden v.
Bd. of Regents of Univ. Sys. Of Ga., 247 F.3d 1262, 1284
(11th Cir. 2001). Generally speaking, in the context of an
ADA Title III claim, this is accomplished by showing that the
plaintiff intends to return to the property at issue. The
United States Court of Appeals for the Eleventh Circuit has
rejected arguments that a tester's motive for a past (or
future) visit to a place of public accommodation precludes
him or her from having standing to seek injunctive relief
under Title III of the ADA. See Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013). On a
defendant's motion to dismiss, the Court must evaluate
standing based on the facts alleged in the complaint.
See, e.g., Shotz v. Cates, 256 F.3d 1077, 1081 (11th
Stating an ADA claim
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other
grounds, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule
12(b)(6) motion to dismiss for failure to state a claim
merely tests the sufficiency of the complaint; it does not
decide the merits of the case. Milbum v. United
States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on
a motion to dismiss, the Court must accept the factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. SEC v. ESM Group,
Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must
also limit its consideration to the pleadings and any
exhibits attached thereto. Fed.R.Civ.P. 10(c); see also
GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to
indicate the presence of the required elements, Watts v.
Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.
2007). Conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as ...