Cohan v. Marco Island Marina Association, Inc.
Filing
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ORDER granting 6 Defendant's Motion to Dismiss Plaintiff's Complaint. Plaintiff's Complaint 1 is DISMISSED WITHOUT PREJUDICE. Because the dismissal is without prejudice, if Plaintiff wishes to proceed with this action, he must file an amended complaint on or before October 14, 2014. Signed by Judge Sheri Polster Chappell on 9/29/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HOWARD COHAN,
Plaintiff,
v.
Case No: 2:14-cv-337-FtM-38DNF
MARCO
ISLAND
ASSOCIATION, INC.,
MARINA
Defendant.
/
ORDER1
This matter comes before the Court on Defendant's Motion to Dismiss (Doc. #6)
filed on August 14, 2014. Plaintiff filed a Response in Opposition on August 27, 2014.
(Doc. #8). Thus, the Motion is ripe for review.
Background
Plaintiff is an individual who suffers from numerous disabilities, including, but not
limited to, spinal stenosis. (Doc. #1 at 2). As a result of their severity, Plaintiff’s disabilities
are classified as “qualified disabilities” under the Americans with Disabilities Act (“ADA”),
and require him to utilize “a handicap parking space, [a] parking access aisle[,] and . . . a
lift for pool and Jacuzzi accessibility.” (Doc. #1 at 2). Defendant is the lessee, operator,
1
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owner, and lessor of real property located at 1402 North Collier Boulevard, Marco Island,
Florida 34145 (“Defendant’s Property”). (Doc. #1 at 2).
On or about October 30, 2013, Plaintiff visited Defendant’s Property, but was
“denied full and equal access and full and equal enjoyment of the facilities, services,
goods, and amenities within [Defendant’s Property], even though he would be classified
as a ‘bona fide patron.’” (Doc. #1 at 2). As Plaintiff explains, “[t]he outdoor pool [at
Defendant’s Property] does not provide an accessible means of entry required by
providing a swimming pool lift.” (Doc. #1 at 6). Plaintiff once again visited Defendant’s
Property on or about March 12, 2014, and noted that Defendant had failed to eliminate
this barrier to Plaintiff accessing Defendant’s outdoor pool. (Doc. #1 at 2, 6). Based on
these factual allegations, Plaintiff brings this action, alleging a single count violation of the
ADA. (Doc. #1).
Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its consideration to
well-pleaded factual allegations, documents central to, or referenced in, the complaint,
and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir. 2004). The Court must accept all factual allegations in Plaintiff's Complaint as true
and take them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). Conclusory allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (discussing a Rule 12(b)(6) dismissal); Marsh v. Butler County, Ala., 268 F.3d
1014, 1036 n. 16 (11th Cir. 2001).
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The Court employs the Twombly–Iqbal plausibility standard when reviewing a
complaint subject to a motion to dismiss. Randall v. Scott, 610 F.3d 701, 708, n. 2 (11th
Cir. 2010). A claim is plausible if the plaintiff alleges facts that “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqba l,
556 U.S. at 678. The plausibility standard requires that a plaintiff allege sufficient facts “to
raise a reasonable expectation that discovery will reveal evidence” that supports the
plaintiff's claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 556, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007); Marsh, 268 F.3d at 1036 n. 16. Thus, “the-defendant-unlawfully
harmed me accusation” is insufficient. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173
L.Ed.2d 868. “Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.” Id. (internal modifications omitted). Further, courts are not “bound
to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
Discussion
Defendant brings the instant Motion asserting three reasons as to why Plaintiff’s
Complaint should be dismissed. First, Defendant asserts that it is statutorily exempt from
application of the ADA because it is a private, not public, club. (Doc. #6 at 4-5). Next,
Defendant argues that Plaintiff’s Complaint fails to plead the necessary factual predicate
in order to bring a claim under the ADA. (Doc. #6 at 5-6). Third and finally, Defendant
moves the Court to dismiss Plaintiff’s Complaint on the basis that Plaintiff lacks standing
under Title III of the ADA to bring this action. (Doc. #6 at 6-7). The Court will address
each argument in turn.
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1. Defendant’s Statutory Exemption
Defendant begins its Motion by arguing that because it is a private, membershiponly club, it is statutorily exempt from application of the ADA. In support of this argument,
Defendant first notes that “[p]ursuant to the ADA’s statutory limitations, [] Congress
explicitly exempted private member clubs and organizations from application of the ADA.”
(Doc. #6 at 4 (citing 42 U.S.C. § 12187)). As Defendant explains, in order to qualify for
this statutory exemption, “an organization must be: (1) an association of persons
organized for the recreational, social or other objective; (2) legitimate; (3) private; and (4)
require some meaningful conditions of limited membership.” (Doc. #6 at 4-5 (citing
Rasumseen v. Central Florida Council of Boy Scouts, Case No. 6:07-cv-1091, 2008 WL
681055 at *10 (M.D. Fla. Mar. 7, 2008) clarified on denial of reconsideration, 2008 WL
1744773 (M.D. Fla. Apr. 11, 2008)).
Based on these four criteria, Defendant believes that there is no question that it
qualifies for the statutory exemption. First, Defendant notes that it “operates a private
marina association for the benefit of its members and their guests” and that its “facilities
are not open to the general public.” (Doc. #6 at 5). Second, Defendant directs the Court’s
attention to the fact that its “[m]embers must be approved for membership . . . and be
current on all dues and quarterly assessments in order to utilize [its] facilities. . . .” (Doc.
#6 at 5). Finally, Defendant believes Plaintiff has failed to set forth any “facts to establish
that [Defendant] is not a social organization, private, legitimate, and has a limited
membership.” (Doc. #6 at 5). Consequently, Defendant avers that it “is fully exempt from
the ADA and Plaintiff’s Complaint should be dismissed with prejudice.” (Doc. #6 at 5).
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In Response and in similar fashion to Defendant, Plaintiff also directs the Court’s
attention to Rasmussen, 2008 WL 681055.
In doing so, Plaintiff first admits that
Defendant correctly notes that the Rasmussen Court “first held that a private ‘membership
organization’ does not constitute a place of public accommodation [under the ADA].”
(Doc. #8 at 4 (citing Rasmussen, 2008 WL 681055)). However, as Plaintiff elucidates,
the Rasmussen Court continued its analysis and further held that “because the plaintiff
was denied access to the certain facilities that qualified as places of public
accommodation, the plaintiff was denied access to the same and had a viable Title III
claim, despite [the defendant] being a private membership club.” (Doc. #8 at 4 (citing
Rasmussen, 2008 WL 681055)).
Therefore, Plaintiff avers that “even if Defendant is deemed to be a private member
club or organization, which Plaintiff denie[s], it will not alleviate Defendant’s obligation to
comply with the ADA as to places of public accommodation under Defendant’s control.”
(Doc. #8 at 4). In support, Plaintiff notes that he “has alleged and will be able to prove
that Defendant allows transient guests to access its Premises and utilize its facilities.”
(Doc. #8 at 4). Consequently, because the “ADA clearly delineates” that a “sales or rental
establishment” is a place of public accommodation, Plaintiff asserts that “Defendant . . .
allowing rentals of its facilities on a transient basis” mandates the Court to conclude that
Defendant “is running a place of public accommodation subject to the requirements of the
ADA.” (Doc. #8 at 5).
There is no question that statutory exemption is classified as an affirmative
defense. See Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1013 (11th Cir.
1982) (“[W]e note that the courts have generally treated statutory exemptions from
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remedial statutes as affirmative defenses.”) (collecting cases). And it is well-established
in the Eleventh Circuit that “[g]enerally, the existence of an affirmative defense will not
support a motion to dismiss.” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069
(11th Cir. 1984), on reh'g, 764 F.2d 1400 (11th Cir. 1985). But “a complaint may be
dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an
affirmative defense, so long as the defense clearly appears on the face of the complaint.”
Id. (internal citations omitted). With that being said, “plaintiffs are not required to negate
an affirmative defense in their complaint.” La Grasta, 358 F.3d at 845 (internal citations
and quotations omitted).
Here, based on the face of the Complaint, the Court agrees with Plaintiff that
dismissal on the basis of a statutory exemption affirmative defense is not warranted at
this stage in the litigation. While Defendant makes a convincing argument that it could
qualify as a private, members-only club, which would exempt it from the ADA, Plaintiff
makes an equally convincing argument that Defendant’s rentals could bring it under the
classification of a public accommodation. A review of 42 U.S.C. § 12182(a) indicates that
“rental establishments” are classified as places of public accommodation under the ADA.
Therefore, taking the factual allegations alleged in Plaintiff’s Complaint in the light most
favorable to Plaintiff, the non-movant, a question remains as to whether Defendant’s
admitted rentals to individuals on a transient basis disqualifies it from the private club
statutory exemption of the ADA. While this issue could very well be determinable and
dispositive at the summary judgment stage, at this stage of the litigation, Defendant’s
Motion to Dismiss on the basis of a statutory exemption affirmative defense must be
denied.
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2. Whether Plaintiff Stated a Claim Upon Which Relief Could be Granted
Defendant continues his Motion by next arguing that “[e]ven if the Court were to
determine that [Defendant] is subject to Title III of the ADA, which it specifically denies,
Plaintiff’s Complaint fails to sufficiently set forth facts under Title III showing that he is
entitled to relief.” (Doc. #6 at 5). In support, Defendant notes that “[i]n essence, [Plaintiff]
alleges only one violation of the ADA in that that [sic] [Defendant] discriminated against
him by failing to provide a pool lift.” (Doc. #6 at 5 (citing Doc. #1 at 6, ¶18)). However,
according to Defendant, “[r]elevant ADA standards do not require a pool lift in a pool.”
(Doc. #6 at 5). Instead, Defendant avers that “[u]nder the ADA 2010 standards, a
swimming pool need only have ‘two accessible means of entry,’” and “[a] pool lift is only
one means of entry.” (Doc. #6 at 5). Therefore, Defendant contends that “[t]he lack of a
pool lift does not itself violate the ADA standards.” (Doc. #5 at 6 (citing Cohan v. Ocean
Club at Deerfield Beach Condo Ass’n, Case No. 14-60196-CIV, 2014 WL 1274128 (S.D.
Fla. Mar. 27, 2014)).
In Response, Plaintiff first provides the Court with the three elements that must be
pled in order for him to properly state a claim under the ADA: “(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.”
(Doc. #8 at 5). Based on these elements, Plaintiff avers that he has sufficiently stated a
claim for a violation of the ADA upon which relief can be granted. In support, Plaintiff
notes that in his Complaint he alleged, (1) “that he suffers from a qualified disability”; (2)
“that Defendant owns, leases, or operate [sic] a place of public accommodation”; and (3)
“that Defendant discriminated against him within the meaning of the ADA and provides
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the exact provisions of the ADA that Defendant has violated.” (Doc. #8 at 5). As such,
Plaintiff believes that his “Complaint fully apprises Defendant of Plaintiff’s qualified
disability, [Defendant’s Property] that [is] the subject of this matter, and how Defendant
has discriminated against Plaintiff.” (Doc. #8 at 5).
Here, the Court agrees with Defendant that Plaintiff has failed to state a claim for
a violation of the ADA upon which relief can be granted. As noted above, in support of
its argument Defendant relies on a case from our sister district: Cohan, 2014 WL
1274128. In Cohan, the court addressed the exact issue that is before this Court today
– whether Plaintiff’s single allegation that Defendant failed to provide a pool lift is sufficient
to state a violation of the applicable ADA standards. 2014 WL 1274128. In answering
that question in the negative, the Cohan Court first noted that the plaintiff’s complaint
contained “precious few statements of fact specific to [that] case.” Id. at *2. That is, after
stripping away the “discussion of the ADA and the [c]omplaint’s overly conclusory
allegations,” the court found that all that remained was a single allegation that the
defendant “failed to ‘provide the requisite lifts in the pool . . . area.’” Id. at *3.
The Cohan Court continued its analysis by noting, as Defendant does here, that
under 36 C.F.R. § 1191 app. B § 242.22, “a swimming pool must have at least two
accessible means of entry.” Id. But the court also noted, as Defendant also notes, that
“[a] pool lift . . . is only one of several permissible accessible means of entry” and that “the
lack of a pool lift in [] a pool . . . does not itself violate the ADA standards.” Id. As the
court explained, “the applicable standards contain no requirement that any sort of facility
2
Just as in Cohan, “36 C.F.R. § 1191 app. B § 242, incorporated into the ADA 2010 Standards for
Accessible Design, provides the ADA standards relevant to this controversy.” 2014 WL 1274128 at *3.
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include a pool lift, as opposed to other accessible means of entry.” Id. (emphasis in
original).
Therefore, the court concluded that the plaintiff’s “allegation that the
[defendant’s] [f]acility lack[ed] ‘pool lift(s),’ even taken as true, [did] not state a violation of
the applicable ADA standards.” Id.
Here, the Court finds the Cohan Court’s reasoning and analysis directly on point
to the issues presented in Defendant’s Motion. Similar to Cohan, when the Court strips
away the Complaint’s discussion of the ADA and its overly conclusory allegations, we too
are left with a single factual allegation, alleging that “[t]he outdoor pool does not provide
an accessible means of entry required by providing a swimming pool lift.” (Doc. #1 at 6,
¶ 18). But as Defendant and the Cohan Court note, the applicable ADA standards,
including 36 C.F.R. § 1191 app. B § 242, do not explicitly require a swimming pool lift.
Instead, all that is required is at least two accessible means of entry. Therefore, even
taking Plaintiff’s single non-conclusory, factual allegation as true, the fact that Defendant
does not have a pool lift does not in itself state a violation of the applicable ADA standards.
Consequently, because Plaintiff has failed to plead enough facts to state a claim for a
violation of the ADA, Defendant’s Motion to Dismiss on the basis of failure to state a claim
must be granted.
Accordingly, it is now
ORDERED:
Defendant's Motion to Dismiss Plaintiff’s Complaint (Doc. #6) is GRANTED.
Plaintiff’s Complaint (Doc. #1) is DISMISSED WITHOUT PREJUDICE. Because the
dismissal is without prejudice, if Plaintiff wishes to proceed with this action, he must file
an amended complaint on or before October 14, 2014.
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DONE and ORDERED in Fort Myers, Florida this 29th day of September, 2014.
Copies: All Parties of Record
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