Houston v. Hess Corporation
Filing
61
ORDER denying 36 Plaintiff's Motion for Summary Judgment. Signed by Judge Sheri Polster Chappell on 3/18/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOE HOUSTON,
Plaintiff,
v.
Case No: 2:13-cv-152-FtM-38DNF
HESS CORPORATION,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff Joe Houston’s Motion for Summary
Judgment and a memorandum of law filed on November 7, 2013. (Doc. #36; Doc. #363). Defendant Hess Corporation filed a response in opposition on December 6, 2013.
(Doc. #46). This matter is now ripe for review.
Background
Houston is disabled and uses a wheelchair. (Doc. #36-1, ¶¶3-4). Hess Corporation
maintains a place of public accommodation located in Clewiston, Florida. (Doc. #36-1, at
¶6; Doc. #36-2, at ¶2). Houston visited the Hess property prior to the filing of this lawsuit
“to get something to eat and to check the location for ADA compliance.” (Doc. #36-1, ¶6).
During his visit, Houston experienced and observed conditions on the Hess property that
denied him the opportunity to enjoy equal access to the full advantages, benefits, goods
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and services available at the property. (Doc. #36-1, ¶7). For example, Houston was
unable to maneuver the facility in a continuous path of travel free from obstructions and
observed that the restroom lacked proper grab bars. (Doc. #36-1, ¶7). Due to these
barriers, Houston asserts he was treated differently than members of the non-disabled
public. (Doc. #36-1, ¶¶7-8).
On March 6, 2013, Plaintiff Houston filed his one count Amended Complaint
alleging Defendant Hess Corporation discriminated against Houston in violation of the
Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter
“ADA”). (Doc. #8). Specifically, Houston alleges Hess denied him access to full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations
at the Hess establishment. (Doc. #8). In addition, Houston alleges Hess failed to ensure
individuals with disabilities are not treated differently because of the absence of auxiliary
aids and services. (Doc. #8). Houston specifically seeks injunctive relief, attorney’s fees,
litigation expenses, and costs. (Doc. #8). Houston has now moved for summary judgment
stating there is no material dispute in this matter. (Doc. #36, Doc. #36-3). Hess has
responded in opposition. (Doc. #46).
Standard
Summary judgment is appropriate only when the Court is satisfied that “there is no
genuine issue as to any material fact” and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). An issue is genuine if there is sufficient evidence
such that a reasonable jury could return a verdict for either party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, an issue is material if it may affect the
outcome of the suit under governing law. Id. The moving party bears the burden of
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showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). In deciding whether the moving party has met this initial burden,
the Court must review the record and all reasonable inferences drawn from the record in
the light most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310,
1313 (11th Cir. 1999). Once the Court determines that the moving party has met its
burden, the burden shifts and the non-moving party must present specific facts showing
that there is a genuine issue for trial that precludes summary judgment. Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence presented
cannot consist of conclusory allegations, legal conclusions or evidence which would be
inadmissible at trial.” Demyan v. Sun Life Assurance Co. of Canada, 148 F. Supp. 2d
1316, 1320 (S.D. Fla. 2001) (citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)).
Failure to show sufficient evidence of any essential element is fatal to the claim and the
Court should grant the summary judgment. Celotex, 477 U.S. at 322-23. Conversely, if
reasonable minds could find a genuine issue of material fact then summary judgment
should be denied. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th
Cir. 1992).
Discussion
Title III of the ADA provides:
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).
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Public establishments must maintain certain accommodations pursuant to the
ADA. Consequently, when a public establishment fails to comply with the ADA
requirements this failure is defined as discrimination. National Alliance for Accessibility,
Inc. v. Walgreen Co., No. 3:10-CV-780-J-32-TEM, 2011 WL 5975809, at *1 (M.D. Fla.
Nov. 28, 2011); Hoewischer v. Cedar Bend Club, Inc., No. 3:11-cv-1040-J-37TEM, 2013
WL 1155783, at *1 (M.D. Fla. Mar. 14, 2013) (“Discrimination includes the ‘failure to
remove architectural barriers [to access] … where such removal is readily achievable.’”)
(citing 42 U.S.C. § 12182(b)(2)(A)(iv)). If a public establishment violates the ADA
requirements, then a court may issue an injunction requiring a defendant “to alter facilities
to make such facilities readily accessible to and usable by individuals with disabilities.”
National Alliance for Accessibility, 2011 WL 5975809 at *1 (citing 42 U.S.C. §
12182(b)(2)(A)(iv)). A prevailing plaintiff is not entitled to damages but may recover
reasonable attorney’s fees. Id.
On a motion for summary judgment in an ADA case, a plaintiff bears the initial
burden of production to demonstrate that an architectural barrier exists and that removal
is readily accessible. Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273
(11th Cir. 2006). If a plaintiff is able to meet this burden, then a defendant has the
opportunity to rebut by having the opportunity to prove that removal of the barriers could
not be accomplished without difficultly or expense. Id. at 1275. A defendant could also
moot the requested injunctive relief if the property becomes compliant with the ADA after
the filing of the lawsuit. National Alliance for Accessability, Inc., 2011 WL 5975809, at *3
(nothing that “[f]ederal courts have dismissed ADA claims as moot when the alleged
violations have been remedied after the initial filing of a suit seeking injunctive relief.”)
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(quoting Norkunas v. Tar Heel Capital Wendy’s LLC, No. 5:09-cv-00116, 2011 WL
2940722, at *3 (W.D. N.C. July 19, 2006)).
Houston asserts it is entitled to summary judgment because Hess maintains a
place of public accommodation that has numerous barriers to individuals with disabilities
in violation of the ADA. On September 9, 2013, Peter Lowell performed an ADA
compliance inspection of the Hess property. (Doc. #36-2, at ¶2). Lowell found there were
barriers on the Hess property but that these barriers could be remedied. (Doc. #36-2, at
¶3). Pursuant to his inspection, Lowell recommended that several changes be made to
the Hess property in order for the facility to become compliant with the Code of Federal
Regulations 28 (CFR) Part 36 ADA Standards for Accessible Design (hereinafter
“ADAAG”). (Doc. #36-2, at 5-14). Lowell specifically recommended that Hess should
remove a ramp in the parking lot and then fill where it was, repave the handicap parking
spaces, replace the sidewalks in front of the store with a new walkway, wrap the pipes in
the bathroom facility, replace the faucet knobs to the bathroom sink, lower the paper towel
dispenser, change the toilet tank in the restroom so that the handles are placed on the
side not closest to the wall, relocate the grab bar in the restroom, and relocate stock and
equipment items that obstruct floor space in front of merchandise. (Doc. #36-2, at 5-14).
Lowell included his estimates on the costs of the alterations as well. (Doc. #36-2, at 514).
Hess, however, contends that as of November 15, 2013, all of the complained of
violations have been remedied and therefore, Houston no longer has standing to bring
this action. (Doc. #46). Hess relies on a report conducted by David Goldfarb. (Doc. #452 (alleging that the barriers in the Complaint have been corrected and now comply with
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the ADA, ADAAG, and FACBC)). Houston, however, contests that the Hess property still
violates the ADA. (Doc. #55; Doc. #55-1). Plaintiff’s inspector, Lowell, examined the Hess
property again on February 9, 2014, but found the property still did not comply with the
ADA standards. (Doc. #55-1). Lowell believes the November 15, 2013, inspection by
Hess overlooked violations of the ADA or alternatively Hess has been unable to maintain
the property in a state of compliance after this inspection. (Doc. #55).
The Parties directly contest whether the Hess property now complies with the
required ADA standards. The Parties’ independent inspections resulted in conflicting
conclusions. There is evidence that the issues have been rectified and evidence that the
issues remain. Accordingly, the Court finds there is a material dispute as to whether the
Hess property currently violates the ADA. Whether the Hess property currently violates
the ADA is important because if the property does not then Houston may no longer have
standing to move forward with this lawsuit. Access for the Disabled, Inc. v. Pohlman, No.
2:06-cv-178-FtM-99SPC, 2007 WL 419640, at 2 (M.D. Fla. Feb. 2, 2007) (discussing that
a party seeking injunctive relief must prove a real and immediate threat of future injury);
National Alliance for Accessability, Inc. v. McDonald’s Corp., No. 8:12-CV-1365-T17TBM, 2013 WL 6408650, at *8 (M.D. Fla. Dec. 6, 2013) (discussing that the plaintiff’s
request for an injunction would be moot if the defendant’s property was sincerely in
compliance with the ADA standards after the complaint was filed, however, plaintiff did
have standing to sue at the time the complaint was filed.). Consequently, Houston is not
entitled to summary judgment.
Accordingly, it is now
ORDERED:
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Plaintiff’s Motion for Summary Judgment (Doc. #36) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 18th day of March, 2014.
Copies: All Parties of Record
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