Dunn et al v. Phoenix West II, LLC et al

Filing 73

ORDER ADOPTING IN PART 62 REPORT AND RECOMMENDATIONS re 40 MOTION to Dismiss First Amended Complaint filed by Phoenix West II, LLC; 38 MOTION to Dismiss First Amended Complaint filed by Brett/Robinson Gulf Corporation; 43 MOTION to Dismiss First Amended Complaint filed by Phoenix West II Owners Association, Inc. as set out. Signed by Judge Kristi K. DuBose on 2/23/2016. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK DUNN,

)
)
Plaintiff,1
)
)
vs.
)
)
PHOENIX WEST II, LLC, PHOENIX
)
WEST II OWNERS ASSOCIATION, INC, )
and BRETT ROBINSON GULF CORP.,
)
)
Defendants.
)

Civil Action No. 15-00258-KD-N

ORDER
This action is before the Court on the Defendants Phoenix West II, LLC, Phoenix West II
Owners Association, Inc., and Brett/Robinson Gulf Corporation’s motions to dismiss the first
amended complaint and memoranda in support (Docs. 38-41, 43-44, 46), Plaintiff’s responses
(docs. 47, 48, 52), Defendants’ replies (Docs. 49, 50, 54), the Report and Recommendation
entered by the Magistrate Judge, Defendants’ objections (Docs. 63-65), Plaintiff’s objections
(Doc. 66), and Defendants’ responses to Plaintiff’s objections (Doc. 67, 68). The Court heard
the parties’ respective oral arguments on January 26, 2016.
After due and proper consideration of the issues raised, and a de novo determination of
those portions of the recommendation to which objection is made, the Report and
Recommendation (Doc. 62) of the Magistrate Judge dated November 9, 2015, and made under
28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), and S.D. Ala. GenLR
72(a)(2)(S), is ADOPTED, in part, as follows, as the opinion of this Court.
1

Amanda Northrup is no longer a plaintiff in this action. (Doc. 56)

I. Factual allegations and claims
Dunn resides in Andalusia, Alabama. As a result of an automobile accident in 2001,
Dunn is paralyzed, is permanently confined to a wheelchair, and is restricted in his ability to use
his hands, arms, and legs. Dunn and his family planned a vacation at the Phoenix West II
condominium facility in Orange Beach, Alabama (hereinafter, “the Facility”), in April 2015.
In March 2015, Dunn called the Facility to inquire about accessible rooms. Dunn spoke
with an employee of Brett/Robinson, who informed Dunn that the Facility did not provide ADAaccessible rooms and that the only ADA accessible rooms Brett/Robinson offers are located at
another facility, the Phoenix All Suites Hotel. Further inquiring about the accessibility at the
hotel and the size of the rooms, Dunn was informed by the Brett/Robinson employee that the
rooms available had bunk beds in the hall. Upon this information, Dunn went online to determine
if the hotel would meet his accessibility needs but was unable to because Brett/Robinson did not
sufficiently identify and describe the accessible features on the website. As a result, Dunn went
to the Facility’s website to determine if it had any accessible features at all and to assess whether
the Facility would be large enough for him to make do. His review of the Facility’s website was
inconclusive because the website lacked sufficient information.
Ultimately, Dunn decided to go to the Facility, made reservations, and went there with
his family and friends. During Dunn’s visit he went from the parking lot to the entranceways,
from the parking lot to and throughout the Facility, including his rented condominium, the
services areas, bathrooms, pool area, the pier, paths of travel, common areas, recreational areas,
the fitness center, and the men’s sauna. The kitchen, bedroom, bathroom, balcony, and seating
area in Dunn’s rented condominium were not accessible to him, and Dunn encountered

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architectural barriers to accessibility in other common areas of the Facility that he visited.
“Mr. Dunn not only intends to return to [the Facility] in the future, but also has concrete
and realistic plans to do exactly that. Generally, Mr. Dunn visits Orange Beach frequently
because of its proximity to his home. Specifically, Mr. Dunn will definitely return in Spring 2016
for a similar vacation as his 2015 visit … It is a virtual certainty that he will return again in
Spring 2017 for a similar vacation visit. Moreover, Mr. Dunn will absolutely continue to return
at least once a year as necessary to verify that [the Facility] is ADA-compliant to his
satisfaction.” (Doc. 61).
Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq.
(hereinafter, “Title III”), concerning “Public Accommodations and Services Operated by Private
Entities,” generally provides that “[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).
Dunn’s First Amended Complaint (Doc. 33) asserts six counts against the Defendants,
alleging various violations of Title III:
Count 1 (against all Defendants) – Unlawful discrimination under § 12182(a) for
“failure to remove architectural barriers … in existing facilities, where such
removal is readily achievable[,]” 42 U.S.C. § 12182(b)(2)(A)(iv) or, “where an
entity can demonstrate that the removal of a barrier under [§ 12182(b)(2)(A)(iv)]
is not readily achievable, a failure to make such goods, services, facilities,
privileges, advantages, or accommodations available through alternative methods
if such methods are readily achievable.” Id. § 12182(b)(2)(A)(v).
Count 2 (against all Defendants) – Unlawful discrimination under § 12182(a) for
“failure to take such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated differently
than other individuals because of the absence of auxiliary aids and services…” 42
U.S.C. § 12182(b)(2)(A)(iii).
3

Count 3 (against all Defendants) – Unlawful denial of the opportunity to
participate, in violation of 42 U.S.C. § 12182(b)(1)(C) (“Notwithstanding the
existence of separate or different programs or activities provided in accordance
with this section, an individual with a disability shall not be denied the
opportunity to participate in such programs or activities that are not separate or
different.”) – specifically, “the opportunity to participate equally in the rental
program for the condominiums at Phoenix West II condominiums at Phoenix
West II because Defendants do not maintain any accessible condominiums and/or
facilities at Phoenix West II[,]” and “the opportunity to participate at each and
every program and activity at Phoenix West II, because the defendants do not
maintain any accessible condominiums and/or facilities at Phoenix West II.”
(Doc. 33 at 25, ¶¶ 56 – 57).
Count 4 (against all Defendants) - Unlawful discrimination under § 12182(a) for
“the imposition or application of eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any goods, services, facilities,
privileges, advantages, or accommodations…” 42 U.S.C. § 12182(b)(2)(A)(i) –
specifically, “Defendants utilize the reservation system to screen out disabled
individuals, so that they do not come to Phoenix West II. The screening out
process specifically involves directing disabled individuals away from Phoenix
West II to a hotel alleged by the reservation system to be ADA compliant, but that
in reality is not ADA compliant.” (Doc. 33 at 27, ¶ 66).
Count 5 (against all Defendants) - Unlawful discrimination under § 12182(a) for
“failing to ensure that individuals with disabilities can make reservations for
accessible guest rooms during the same hours and in the same manner as
nondisabled individuals, pursuant 28 C.F.R. § 36.302(e)(1)(i), and by failing to
describe the accessible features in the hotel and guest rooms offered through its
reservations’ service both in advertisements and online in enough detail to
reasonably permit individuals with disabilities to assess independently whether
the condominium meets their accessibility needs, pursuant to 28 C.F.R. §
36.302(e)(1)(ii).”2 (Doc. 33 at 28, ¶ 77) – specifically, “Dunn could not determine
from the existing systems and advertisements whether his condominium was
accessible.” (Id. at 28 – 29, ¶ 78).
Count 6 (against Phoenix West II only) - Unlawful discrimination under §
12182(a) for “failure to design and construct facilities for first occupancy later
than 30 months after July 26, 1990, that are readily accessible to and usable by

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individuals with disabilities…” 42 U.S.C. § 12183(a)(1).

II. Standing
The Court adopts the recommendation as to Plaintiff’s standing to bring this action. (Doc.
62, Report and Recommendation, Section A., p. 10-20) Accordingly, Defendants’ motions to
dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing are DENIED.

III. Phoenix West II, LLC
The Court adopts the recommendation as to Counts 2 and 4 of the first amended
complaint. (Doc. 62, p. 34-37 through the second paragraph) Accordingly, Phoenix West II,
LLC’s motion to dismiss as to Counts 2 and 4 is GRANTED.
The Court declines to adopt the recommendation as to Counts 1, 3, 5, and 6 as it relates to
Phoenix West II. (Doc. 62, p. 25-29 (Counts 1, 3, and 6); p. 37-39 (Count 5)) These counts are
premised upon factual allegations that Phoenix West II failed to provide ADA accessible rental
units in violation of 42 U.S.C. § 12182(a). This section addresses “Public Accommodations and
Services Operated by Private Entities” and provides that “[n]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment” of the facilities 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).
To survive a motion to dismiss, Plaintiff must allege sufficient facts to support his
allegation that Phoenix West II “owns . . . a place of public accommodation”. The alleged place
of accommodation is the Phoenix West II Facility. Plaintiff relies on the condominium
documents to support his allegation that Phoenix West II owns the Facility at issue. In that
regard, the Declaration of Condominium states that Phoenix West II owns a fee simple interest in
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the property and improvements that are Phoenix West II condominiums.2 However, that
statement simply describes Phoenix West II’s status and authority to submit the property and
improvements to condominium ownership under the Alabama Uniform Condominium Act of
1991 (“AUCA”).
The AUCA provides for creation of a condominium and states in part, that a
“condominium may be created pursuant to this chapter only by filing a declaration executed in
the same manner as a deed …”. Ala. Code § 35-8A-201. The “Declaration” is defined as “[a]ny
instruments, however denominated, that create a condominium, and any amendments to those
instruments.” Ala. Code § 35-8A-103. The Declaration defines “Condominium Property” or the
“Property” as “all property, both real, personal or mixed, which is submitted to the
Condominium form of ownership as provided for herein and includes the Real Property and all
improvements . . .” (Doc. 44-1, ¶ 1.13). As to ownership, the Declaration states that “[e]ach
owner shall be entitled to exclusive ownership and possession of his unit” and that “[e]ach owner
shall be entitled to an undivided interest in the common elements in the percentages expressed in
this Declaration[.]” (Doc. 44-1, ¶ 9.01) The Declaration also provides a “schedule setting forth
the percentage of undivided interest of each unit in the common areas[.]” (Doc. 44-1, ¶ 7.01) In
sum, by this Declaration Phoenix West II relinquished its fee simple ownership in favor of
condominium ownership. Thus, the Declaration does not support Plaintiff’s claim that Phoenix
West II owns the Facility.
At oral argument, Plaintiff relied on the Baldwin County property tax records to show
that Phoenix West II still owns at least ten condominium and thus owns the Facility. A “unit

2

“Developer [Phoenix West II] is the fee simple owner of that certain parcel of real property …”
(Doc. 44-1, p. 6)

6

owner” is defined in Ala. Code § 35-8A-103: “Unit owner. A declarant or other person who
owns a unit . . . In a condominium, the declarant is the initial owner of any unit created by the
condominium”. However, initial ownership of condominium units does not make Phoenix West
II the owner of the Facility.
Plaintiff’s conclusory allegation that Phoenix West II “owns” the Facility is insufficient
and without factual support. Accordingly, since an entity must be an owner to be liable under
the relevant ADA provisions,3 Phoenix West II’s motion to dismiss Counts 1, 3, 5, and 6 is
GRANTED.

IV. Phoenix West II Owners Association, Inc.
The Court adopts the recommendation as to Count 2 of the first amended complaint.
(Doc. 62, p. 34-35) Accordingly, the Association’s motion to dismiss as to Count 2 is
GRANTED.
The Court declines to adopt the recommendation to deny the Association’s motion to
dismiss as to Count 4 (doc. 62, p. 37).4 The Association objects to the recommendation and
argues that the same rationale that resulted in the recommendation to dismiss this count as to
Brett/Robinson and Phoenix West II, should apply to the Association (doc. 65, p. 7, 20-21). The
Court agrees. Accordingly, the Association’s motion to dismiss as to Count 4 is GRANTED.
3

Counts 2 and 4 are also subject to dismissal on this basis as well as that delineated by the
Magistrate Judge.
4

The Magistrate Judge found that the Association argued only that it did not own or operate the
rental reservation system (doc. 62, p. 37). However, the Association also argued that it did not
own units or rent units to third parties, in addition to arguing that it did not maintain a rental
reservation system. The Association also argued that “[m]any individual unit owners do not rent
their units, but those who choose to do so may rent them directly or use a rental agency such as
Brett Robinson.” (Doc. 44, p. 11)

7

The Court declines to adopt the recommendation to deny the motion to dismiss as to
Counts 1 and 3, as it relates to the Association. (Doc. 62, p. 25-29 (Counts 1, 3) Counts 1 and 3
allege violations of 42 U.S.C. § 12182(a) of the ADA, which prohibits any person who owns or
operates any place of public accommodation from discriminating against disabled individuals in
the full and equal enjoyment of the facilities. In that regard, Plaintiff alleges that the
“Association [both] ‘operates’ the condominiums and ‘owns’ the condominiums.” (Doc. 33, p. 8)
However, no facts are alleged which support Plaintiff’s allegation that the Association “owns”
the Facility, any condominium unit, or the common areas. (Doc. 33, ¶ 10) Instead, Plaintiff only
alleges that the Association has control and dominion over the condominiums and the authority
to “maintain and operate all aspects of the condominiums and in particular the maintenance and
operation of the common elements and any and all rules and regulations for the condominiums.”
(Doc. 33, p. 8)5
However, there are no plausible facts alleged that the Association operates or controls the
individually-owned condominium units. Plaintiff alleges that the Association “exercises full
regulatory control over the actions of condominium owners in relation to their condominiums
and is able to take remedial actions in relation to owners.” (Doc. 33, p. 8) But this conclusory
statement appears to be speculative and not supported by any fact. Specifically, the Plaintiff fails
to allege facts to support the contention that the Association has authority to require any control
over condominium unit owners to alter the interiors of the units to make the units accessible.
Even assuming for purpose of the motion to dismiss that the interiors of the individual
5

The Declaration defines the “common elements of the condominium” to include “all parts of
the condominium property not located within the perimeter boundaries of the apartment units”
and lists items such as balconies and decking, “attics, foundations, columns, girders, beams, and
support of building and such component parts of walls, roofs, floors and ceilings as are not
located within the units.” (Doc. 44-1, p. 12, ¶ 6.03)

8

condominium units could possibly be a place of public accommodation,6 there are no facts to
support that the Association “operates” the interiors such that relief could be granted. Steelman v.
Florida, 2013 WL 1104746, at *2 (M.D. Fla. Feb. 19, 2013) report and recommendation
adopted, 2013 WL 1104256 (M.D. Fla. Mar. 18, 2013) (“To ‘operate’ a place of public
accommodation means to exercise control over the alleged discriminatory action and to have the
authority to take remedial measures.”) (citing Neff v. American Dairy Queen Corp., 58 F. 3d
1063, 1067 (5th Cir. 1996) (explaining that the relevant inquiry is whether defendant according
to the terms of the franchise agreement “controls modification of the San Antonio Stores to cause
them to comply with the ADA.”); Lemmons v. Ace Hardware Corp., 2014 WL 3107842, at *7
(N.D. Cal. July 3, 2014) (“Lemmons points to no evidence to show that Ace retained the
authority under the agreement to dictate the physical layout of the store, or that [it] otherwise
participated in the alleged acts of discrimination against Plaintiff. In the absence of such
evidence, the Court cannot conclude that Ace had control over the store such that it could ensure
nondiscrimination against the disabled.”).
Moreover, the common elements are owned by the individual unit owners and are for
exclusive use of the owners, their guest and tenants. Thus, although the Association controls the
common elements, they are amenities for the unit owners and are not “public accommodations”.
The only possible exception is the rental office that is located on the premises. Plaintiff has

6

However, see Mabson v. Ass’n. of Apt. Owners of Maui Kamaole, 2007 WL 23633349, *10
(D. Hi. Aug. 13, 2007) (finding that residential condominiums were not a place of public
accommodation and “[t]hat there may be some short-term rental units within the condominium
would not change that result. Even for short-term rental situations, the owners still would have a
choice as to whether or not to rent the unit and to whom to rent the unit.”) (citing Thompson v.
Sand Cliffs Owners Ass'n, Inc., 1998 WL 35177067, at *3 (N.D.Fla. March 30, 1998) (noting
that even if an owner were to rent a unit, that owner “is still free to use his condominium at
anytime, and he may also decide not to rent it out at all,” and “when the units are not being
rented, there is no question that they remain the owners' residences”).
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alleged that there is an office in the Facility where the public may walk in and make a reservation
to rent a condominium unit. If true, this part of the Facility would be required to be ADA
compliant. Sapp v. MHI P'ship, Ltd., 199 F. Supp. 2d 578, 586-87 (N.D. Tex. 2002) (A model
home that is also used as a sales office is subject to ADA requirements.) However, the Plaintiff
has failed to make any allegations to support that the rental/sales office was not ADA compliant.
Accordingly, the Association’s motion to dismiss as to Counts 1 and 3 is GRANTED
The Court declines to adopt the recommendation to deny the Association’s motion to
dismiss as to Count 5 (doc. 62, p. 38). In Count 5, Plaintiff alleges that the Defendants violated
the ADA “by failing to ensure that individuals with disabilities can make reservations for
accessible guest rooms during the same hours and in the same manner as nondisabled
individuals” and “by failing to describe the accessible features in the hotel and guest rooms
offered through its reservations’ service both in advertisements and online in enough detail to
reasonably permit individuals with disabilities to assess independently whether the condominium
meets their accessibility needs[.]” (Doc. 33, p. 28) In relevant part, the regulation provides for
“[r]eservations made by places of lodging” and states 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 . . . or through a
third-party –
(i) modify its policies, practices or procedures to ensure that individuals with
disabilities can make reservations for accessible guest rooms during the same
hours and in the same manner as individuals who do not need accessible rooms;
(ii) identify and describes 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)(i)(ii).

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Plaintiff alleges that Brett/Robinson as the rental management agent for the individual
condominium unit owners operates the reservation system. See Section V. Plaintiff has failed to
allege sufficient facts to show how the Association owns or operates or has any control or
authority over the descriptions of the accessible features within the individual condominium
units, i.e., the alleged “guest rooms”, rented through Brett/Robinson. (Doc. 33, p. 7-8)
Accordingly, the Association’s motion to dismiss as to Count 5 is GRANTED.

V. Brett/Robinson Gulf Corporation
The Court adopts the recommendation as to Counts 1, 2, 3 and 4. (Doc. 62, p. 29-33
(Count 1 and 3); p. 34-35 (Count 2); p. 36-37 through the second paragraph (Count 4))
Accordingly, Brett/Robinson’s motion to dismiss as to Counts 1, 2, 3 and 4 is GRANTED.
The Court declines to adopt the recommendation as to Count 5. (Doc. 62, p. 37-39) The
statute provides that “[n]o individual shall be discriminated against on the basis of disability . . .
by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42
U.S.C. § 12182(a). Count 5 is premised on the regulation that states that a “public
accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect
to reservations…” make modifications to its policies, procedures and practices to comply with
the ADA. 28 C.F.R. § 36.302(e)(1)(i)(ii). Thus, Plaintiff must allege sufficient facts to render
plausible that Brett/Robinson owns, leases or operates a place of public accommodation.
The Plaintiff alleges only that Brett/Robinson is a third-party entity that provides a rental
management program for the individual condominium owners. (Doc. 62, p. 30)7 Specifically,

7

Plaintiff alleges that “. . . Brett Robinson is the rental management entity for the individual
property owners of the condominiums. In ADA terms, Brett Robinson “operates” the transient
lodging rental program at the condominiums and “leases” or “leases to” the short term renters of
11

Plaintiff has pled that Brett/Robinson is the “rental management entity for the individual
property owners of the condominiums” that “offers to the individual property owners of the
condominiums” a range of services for the condominiums leased through Brett/Robinson.
Plaintiff also alleges that Brett/Robinson “is the rental agency responsible for maintaining and
providing opportunities for guests to make reservations to the Phoenix West II via the internet.”
(Id.) However, Plaintiff has not alleged plausible facts to support that Brett/Robinson owns,
leases or operates the Facility at issue. 8
Also, Plaintiff has not alleged plausible facts to support that Brett/Robinson, as a rental
management service or rental agent for the individual property owners, has any authority to take
remedial measures to modify the Facility. Steelman, 2013 WL 1104746, at *2 (“To ‘operate’ a
place of public accommodation means to exercise control over the alleged discriminatory action
the condominiums. 42 U.S.C. § 12182. Brett Robinson’s responsibilities include promoting the
property, finding customers for the rental program, and providing excellent service during the
renters stay. Brett Robinson offers to the individual property owners of the condominiums a
strategic marketing program; specialized reservations training; a website with interior and
exterior photos and virtual tours; an owners website with a list of booking, work orders, and
financial statements; annual property inspections and recommendations; provide the owners
information and address service requests; maintenance service available 24 hours; commercial
laundry and linen services; individual monthly accounting with direct deposit service available;
storm recovery assistance; constant review of industry trends to remain competitive and
maximize rentals; a 22% management fee; provide blankets, mattress pads, pillows, pillow
protectors, potholders, shower linens, towels, and linen; limit the number of guests in the unit to
the bedding and inspect properties between guests stays. Brett Robinson is the rental agency
responsible for maintaining and providing opportunities for guests to make reservations to the
Phoenix West II via the internet.” (Doc. 33, p. 6-7).
8

Additionally, the individually-owned condominiums do not appear to be subject to the ADA.
See 28 C.F.R. § 36.406(c)(2) (“Alterations to guest rooms in places of lodging where the guest
rooms are not owned or substantially controlled by the entity that owns, leases, or operates the
overall facility and the physical features of the guest room interiors are controlled by their
individual owners are not required to comply with § 36.402 or the alterations requirements in
section 224.1.1 of the 2010 Standards.”); 28 C.F.R § 36.406(c)(3), applicable to “transient lodging
guest rooms” in “Places of lodging” subject to the ADA, provides that in “[f]acilities with residential
dwelling units and transient lodging units”, the “[r]esidential dwelling units that are designed and

constructed for residential use exclusively are not subject to the transient lodging standards.”
12

and to have the authority to take remedial measures.”) (citing Neff, 58 F. 3d at 1067 (explaining
that the relevant inquiry is whether defendant according to the terms of the franchise agreement
“controls modification of the San Antonio Stores to cause them to comply with the ADA.”);
Lemmons, 2014 WL 3107842, at *7 (“Lemmons points to no evidence to show that Ace retained
the authority under the agreement to dictate the physical layout of the store, or that [it] otherwise
participated in the alleged acts of discrimination against Plaintiff. In the absence of such
evidence, the Court cannot conclude that Ace had control over the store such that it could ensure
nondiscrimination against the disabled.”). Accordingly, Brett/Robinson’s motion to dismiss as to
Count 5 is GRANTED.

DONE and ORDERED this 23rd day of February 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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