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Poschmann v. Fountain TN, LLC

United States District Court, M.D. Florida, Fort Myers Division

September 19, 2019

DAVID POSCHMANN, Plaintiff,
v.
FOUNTAIN TN, LLC, Defendant.

          OPINION AND ORDER

          JOHH E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant’s Motion to Dismiss Plaintiff’s Complaint or, in the Alternative, Motion for More Definite Statement (Doc. #17) and Notice of Supplemental Authority (Doc. #20). Plaintiff filed a Response in Opposition (Doc. #18) on August 14, 2019. For the reasons set forth below, the Motion is denied.

         I.

         This is an action for injunctive relief under Title III of the Americans With Disabilities Act (ADA). As alleged in the Complaint (Doc. #1), plaintiff David Poschmann is disabled as defined by the ADA due to the amputation of his right leg and is a “tester” for the purpose of determining whether places of public accommodation are in compliance with the ADA. Plaintiff uses a wheelchair to ambulate and drives his own specially equipped vehicle. Because he suffers from a mobility disability and is dependent upon mobility devices and aids, plaintiff requires an accessible hotel and hotel room. To that end, in May 2019 plaintiff visited the website of Fountain Cottages Inn, which is located in Fort Myers, Florida, and owned and operated by defendant, Fountain TN, LLC. The website, however, failed to provide information about the accessible features of the hotel and its rooms for persons with disabilities as required by the ADA.

         Plaintiff alleges defendant engaged in illegal disability discrimination in violation of the ADA and requests a permanent injunction directing defendant to take all steps necessary to bring its reservations services into full compliance with the ADA and payment of costs and reasonable attorney’s fees. Defendant moves to dismiss, arguing that plaintiff lacks standing to bring a claim and fails to state a claim.

         II. Legal Background

         Title III of the ADA provides the following general rule:

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). An “inn, hotel, motel, or other place of lodging” is considered a place of public accommodation. 42 U.S.C. § 12181(7)(A).

         To carry out the provisions of the ADA prohibiting discrimination in public accommodations, the Department of Justice promulgated 28 C.F.R. § 36.302(e). Poschmann v. Coral Reef of Key Biscayne Developers, Inc., 2018 WL 3387679, *3 (S.D. Fla. May 23, 2018). Section 36.302(e) provides that “[a] public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means”:

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs[.]

28 C.F.R. § 36.302(e)(1)(ii).

         A plaintiff alleging Title III ADA discrimination “must initially prove that (1) he is a disabled individual; (2) the defendants own, lease, or operate a place of public accommodation; and (3) the defendants discriminated against the plaintiff within the meaning of the ADA.” Norkunas v. Seahorse NB, LLC, 444 Fed.Appx. 412, 416 (11th Cir. 2011) (citing 42 U.S.C. § 12182(a)).

         III. ...


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