Kennedy v. Gulf Gate Plaza, LLC

Filing 30

OPINION AND ORDER denying 22 defendant's Motion to Dismiss Plaintiff's Amended Complaint. Defendant shall file a responsive pleading to the Amended Complaint within fourteen (14) days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 5/31/2017. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA
individually,

KENNEDY,

Plaintiff,
v.

Case No: 2:16-cv-806-FtM-29CM

GULF GATE PLAZA, LLC,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #22) filed
on March 13, 2017.

Plaintiff filed a Response in Opposition (Doc.

#23) on March 27, 2017. For the reasons set forth herein, the
motion is denied.
I.
On October 13, 2016, plaintiff Patricia Kennedy (plaintiff or
Kennedy)

brought

(defendant).

this

(Doc. #1.)

action

against

Gulf

Gate

Plaza,

LLC

The Amended Complaint, the operative

pleading before the Court, alleges defendant violated Title III of
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et
seq.

(Doc. #18.)
Plaintiff is a resident of Broward County, Florida, and brings

her claims individually and as a “tester” to ensure compliance

with the ADA.

(Id. ¶¶ 1, 8, 9.) Plaintiff alleges that she

qualifies as a disabled individual under the ADA because she is
wheelchair bound with limited use of her hands.

(Id. ¶ 1.)

Defendant owns, leases, leases to, or operates property located in
Collier County, Florida that is open to the public (Gulf Gate
Plaza).

(Id. ¶ 2.)

Plaintiff alleges that upon visiting Gulf

Gate Plaza, she encountered barriers which limited or denied her
access to goods and services offered by the businesses located at
Gulf Gate Plaza, and that her access will continue to be limited
or denied until Gulf Gate Plaza becomes ADA compliant.
8.)

(Id. ¶¶ 7-

Specifically, plaintiff alleges that the following violations

exist at Gulf Gate Plaza:
Parking area:
a.
b.

c.

d.

e.

f.

g.
h.

The access aisle adjacent to Big Lots has
excessive slopes and cross slopes.
The access aisle adjacent to Salon
Centric has excessive slopes and cross
slopes.
The disabled space adjacent to SPC
Cleaners has excessive slopes and cross
slopes.
The disabled parking space adjacent to
Metro Nails has excessive slopes and
cross slopes.
The right access aisle adjacent to Family
Dollar has excessive slopes and cross
slopes.
The right access aisle adjacent to Big
Lots has excessive slopes and cross
slopes.
The handicapped sign in front of Subway
lacks the required verb[i]age.
There is an insufficient number of
compliant parking spaces.

2

Monterey Tortilleria & Panaderia:
a.
b.
c.
d.
e.
f.
g.

h.
i.
j.

The unisex restroom lacks compliant door
ha[r]dware.
The unisex restroom lacks compliant grab
bars.
The lavatory faucets in the unisex
restroom require pinching and grasping.
The lavatory in the unisex restroom has
exposed pipes.
The lavatory in the unisex restroom has
insufficient knee clearance.
The water closet in the unisex restroom
is improperly mounted.
Amenities in the unisex restroom (e.g.,
toilet tissue dispensers, mirrors, etc.)
are mounted outside the acceptable reach
ranges.
The unisex restroom lacks the required
turning radius.
Stored items encroach on the accessible
route to the restroom.
The seating area does not provide seating
with the required knee clearance nor the
required clear floor space.

Bravo International Supermarket[:]
a.

b.

The meat department counter is mounted at
more than 36 inches above the finished
floor.
The lottery counter is mounted at more
than 36 inches above the finished floor.

Overall violations[:]
a.

b.

As described above, the Defendant fails
to adhere to a policy, practice and
procedure to ensure that all goods,
services and facilities are readily
accessible to and usable by the disabled.
As described above, the Defendant fails
to maintain its features to ensure that
they are readily accessible and usable by
the disabled.

(Id. ¶ 7.)

3

Plaintiff alleges that she visited Gulf Gate Plaza and plans
to return to Gulf Gate Plaza in the near future, both to avail
herself of the goods and services provided and to assess ADA
compliance. (Id. ¶ 8.) Plaintiff alleges that defendant’s failure
to

maintain

Gulf

Gate

Plaza

in

compliance

with

the

ADA

discriminates against plaintiff “by denying her access to, and
full and equal enjoyment of, the goods, services, facilities,
privileges,

advantages,

and/or

accommodation

of

the

subject

property, as prohibited by 42 U.S.C. § 12182 et seq.” (Id. ¶ 15.)
Defendant moves to dismiss plaintiff’s Amended Complaint for
failure to state a claim upon which relief can be granted.

(Doc.

#22.)
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

unadorned,

This requires

the-defendant-unlawfully-harmed-me

4

accusation.”

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
III.
Defendant seeks dismissal of plaintiff’s Amended Complaint
for failure to state a claim because (1) plaintiff fails to allege
how or why the supposed violations resulted in discrimination
against

her;

(2)

plaintiff

improperly

includes

a

“catch-all”

provision involving violations which are not actually alleged in

5

the Amended Complaint; and (3) plaintiff fails to allege that
removal of the alleged barriers is readily achievable. (Doc. #22.)
In order to state a claim under Title III, a plaintiff must
allege: “(1) that she is an individual with a disability; (2) that
defendant

is

a

defendant

denied

place

of

her

full

public
and

accommodation;

equal

enjoyment

and
of

(3)

the

that

goods,

services, facilities or privileges offered by defendant (4) on the
basis of her disability.”

Schiavo ex rel. Schindler v. Schiavo,

403 F.3d 1289, 1299 (11th Cir. 2005) (citation omitted).
The ADA sets forth different standards depending on whether
the facility at issue was in existence at the time of, or built
after, the enactment of the ADA on January 25, 1993.

Gathright-

Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1272-73 (11th
Cir. 2006).

The ADA places less rigorous standards on those

facilities that were in existence at the time of its enactment.
Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357,
1365 (S.D. Fla. 2001) (citation omitted).

For those facilities,

in addition to the above elements, a plaintiff also bears the
burden of proving that the removal of the barrier is readily
achievable. 1

1

Norkunas v. Seahorse NB, LLC, 720 F. Supp. 2d 1313,

With respect to existing places of public accommodation,
the plaintiff has the initial burden of
production to show (1) that an architectural
barrier exists; and (2) that the proposed
method of architectural barrier removal is

6

1319 n.13 (M.D. Fla. 2010) (“[A] plaintiff must demonstrate that
removal of an architectural barrier is readily achievable to
establish a prima facie ADA case . . . .” (citing GathrightDietrich, 452 F.3d at 1273)).

“New construction (and alterations

to a facility affecting its usability) built after the enactment
of

the

ADA

accessible

must
to

be

and

designed

usable

by

to

make

the

individuals

facility
with

‘readily

disabilities,

including individuals who use wheelchairs’ to the maximum extent
feasible.”

Norkunas v. Seahorse NB, LLC, 444 F. App’x 412, 415

(11th Cir. 2011) (quoting 42 U.S.C. § 12183(a)(2)). Therefore, the
“[f]ailure to make such construction (and alterations) accessible
constitutes intentional discrimination.”

Id.

As to the first element, the Court finds that plaintiff has
sufficiently alleged that she is disabled within the meaning of
the ADA as she is unable to walk, has limited use of her hands,
and is bound to ambulate in a wheelchair.
is

sufficient

1630.2(g)(1)(i)

to

meet

the

first

(“Disability

(Doc. #18, ¶ 1.)

element.

means,

with

See

29

C.F.R.

respect

“readily
achievable,”
i.e.,
“easily
accomplishable and able to be carried out
without much difficulty or expense” under the
particular circumstances of the case. If the
plaintiff meets this burden, the defendant
then bears the ultimate burden of persuasion
that
barrier
removal
is
not
“readily
achievable.”
Gathright-Dietrich, 452 F.3d at 1273 (citations omitted).

7

This

to

§
an

individual[, a] physical or mental impairment that substantially
limits one or more major life activities of such individual[.]”);
42 U.S.C. § 12102(2)(A) (“[M]ajor life activities include . . .
walking . . . .”).
As to the second element, plaintiff alleges that defendant is
a place of public accommodation.

(Id. ¶ 2.)

sufficient to plead the second element.

The Court finds this

See 28 C.F.R. § 36.104;

Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1240 (11th Cir.
2000)

(“Congress

has

provided,

in

Title

III

of

the

ADA,

a

comprehensive definition of ‘public accommodation.’” (citation
omitted)).
As to the third and fourth elements, defendant asserts that
plaintiff has failed to allege how the violations alleged in the
Amended Complaint are discriminatory against her.
3-6.)

(Doc. #22, pp.

Specifically, defendant asserts that merely listing the

barriers

without

alleging

when,

how,

and

why

those

barriers

resulted in discrimination to the plaintiff is insufficient to
state a claim.

(Id. at 4-5.)

Within the Amended Complaint

plaintiff alleges that the listed barriers discriminated against
her on the basis of her disability and denied her access to, and
the full and equal enjoyment of, the goods, services, facilities,
privileges, and /or accommodations of the subject property. (Doc.
#18, ¶¶ 7, 8, 15, 17.)

The Court finds that these allegations are

sufficient to put defendant on notice of what plaintiff alleges

8

and satisfies the pleading requirements articulated in Twombly 2
and Iqbal. 3

See Ferguson v. CHC VII, Ltd., 69 F. Supp. 3d 1292,

1295-96 (M.D. Fla. 2014);

McBay v. City of Decatur, No. CV-11-S-

3273-NE, 2014 WL 1513344, at *4-5 (N.D. Ala. Apr. 11, 2014);

Lugo

v. 141 NW 20th St. Holdings, LLC, 878 F. Supp. 2d 1291, 1294-95
(S.D. Fla. 2012).

The barriers listed in the Amended Complaint,

on their face, are those that would affect an individual bound to
a wheelchair with limited use of their hands.

While some courts

have required more detail in linking the alleged disability to the
encountered barrier, this Court finds that, at least in this
matter, that plaintiff’s Amended Complaint plausibly alleges that
defendant denied plaintiff full and equal enjoyment of the goods,
services, facilities, or privileges offered by defendant on the
basis of her disability.
Plaintiff’s Amended Complaint also contains, what defendant
refers to as, “Catch-All” allegations where plaintiff alleges that
the

list

of

barriers

is

not

exclusive

and

that

additional

violations may be found upon an inspection of the premises.
#18, pp. 5, 7.)

(Doc.

Defendant asserts that these allegations must be

“dismissed to the extent Plaintiff purports to allege barriers
which are not expressly identified.”

(Doc. #22, p. 6.)

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

3

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

9

In

support, defendant cites to Norkunas v. Seahorse NB, LLC, where
the Eleventh Circuit held that to the extent that the plaintiff
attempted to bring his claim based on barriers that he did not
encounter

because

the

area

where

the

barriers

were

was

not

accessible to him, he did not have standing to include those
barriers in his ADA case.

444 F. App’x at 416.

The Court agrees

that plaintiff may not base her claim on barriers she did not
encounter.

However, at this time, based on the four corners of

the Amended Complaint, the Court does not find reason to dismiss
claims based on other current violations that existed and plaintiff
encountered.

Should

plaintiff

attempt

to

assert

claims

for

barriers she did not encounter, defendant is free to challenge
those claims at that time.
Lastly, defendant asserts that plaintiff’s ADA claim fails
because plaintiff has failed to allege that the removal of the
barriers is readily achievable.

(Doc. #22, pp. 8-9.)

Plaintiff

asserts that she is not required to allege that the removal of the
barriers

is

readily

achievable

defense.

(Doc. #23, p. 5.)

because

it

is

an

affirmative

As stated supra, different standards

apply depending on whether the facility at issue was in existence
at the time of, or constructed after, the enactment of the ADA.
Gathright-Dietrich, 452 F.3d at 1272-73.
Here, the Amended Complaint does not allege when Gulf Gate
Plaza was constructed. Therefore, at this stage of the proceeding,

10

and based on the four corners of the Amended Complaint, the Court
finds the allegations within the Amended Complaint sufficient.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
(Doc. #22) is denied. Defendant shall file a responsive pleading
to the Amended Complaint within fourteen (14) days of this Opinion
and Order.
DONE AND ORDERED at Fort Myers, Florida, this __31st__ day of
May, 2017.

Copies: Counsel of record

11