Rood v. Town of Ft. Myers Beach

Filing 42

ORDERED: Defendant Town of Fort Myers Beach's Amended Motion to Dismiss Plaintiff Edward Rood's Second Amended Complaint (Doc. 40) is DENIED. Defendant must answer the Second Amended Complaint on or before May 12, 2021. Signed by Judge Sheri Polster Chappell on 4/28/2021. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD ROOD,
Plaintiff,
v.

Case No: 2:20-cv-981-SPC-MRM

TOWN OF FT. MYERS BEACH,
FLORIDA,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Town of Fort Myers Beach, Florida’s
Motion to Dismiss the Second Amended Complaint (Doc. 40), to which Plaintiff
Edward Rood has responded (Doc. 41). For the below reasons, the Court denies
the Motion.
BACKGROUND
This is a Title II of the Americans with Disabilities Act (“ADA”) case.
Rood alleges the Town discriminated against him by failing to provide him with
a reasonable accommodation.

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Rood uses a wheelchair because he cannot walk on uneven ground and
can walk unaided on even ground only for short distances. (Doc. 36 at 3).
Rood’s physical impairment poses an issue for him enjoying his beachfront
home in the Town of Fort Myers Beach. That is because separating Rood’s
home from the water is a low-lying dune covered with vegetation and a shallow
non-tidal lagoon. (Doc. 36 at 4; Doc. 38-1 at 30).
For several years, Rood has tried to get permits to build a wooden
walkover structure over the dune toward the shoreline wide enough for his
wheelchair. (Doc. 36 at 4; Doc. 38-1 at 30). According to Rood, the walkover
will allow him the same access to the public beach enjoyed by non-disabled
people. (Doc. 36 at 4-5).
To get the walkover, Rood applied to the State of Florida for
environmental permits. But the Town sued to stop the State from issuing any
permits. The Town lost. After a hearing, an administrative law judge found
for Rood and issued the permits.
But victory wasn’t complete.

Rood still needed the Town Council’s

approval before he could build the walkover. So, as best the Court can tell,
Rood applied in June 2019 for a special exception.2 (Doc. 38-1). Although the
Town’s Local Planning Agency unanimously recommended that the Town

Rood applied jointly with his neighbor. Both Rood and the neighbor own their homes
through limited liability companies, and the applications were brought by those entities.
2

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Council approve the structure, the Town Council voted differently. It denied
final approval and reconsideration. (Doc. 36 at 6).
Rood now turns to Title II of the ADA. He sues the Town arguing it has
violated the statute by not accommodating his disability with the walkover.
He seeks a judgment for declaratory, compensatory, and nominal relief. The
Town moves to dismiss this suit.
LEGAL STANDARD
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual matter, which,
if accepted as true, would ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible when the court can draw
a reasonable inference, based on the facts pled, that the opposing party is liable
for the alleged misconduct. Id.; see also Watts v. Fla. Int’l Univ., 495 F.3d 1289,
1295-96 (11th Cir. 2007) (“The Court has instructed us that the rule ‘does not
impose a probability requirement at the pleading stage,’ but instead ‘simply
calls for enough fact to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element.” (cleaned up)).
In reviewing a motion to dismiss, the court must accept all factual
allegations as true and view them in a light most favorable to the non-moving
party. Id. The court limits its review “to the well-pleaded factual allegations,

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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).
DISCUSSION
“Title II of the ADA prohibits public entities from discriminating against
individuals with disabilities.” Quality of Life, Corp. v. City of Margate, 805 F.
App’x 762, 766 (11th Cir. 2020). To state a claim under Title II, a plaintiff must
show (1) that he is a qualified individual with a disability; (2) that he was
excluded from participation in or denied the benefits of a public entity’s
services, programs, or activities, or was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of benefit, or discrimination
was because of plaintiff’s disability. Bricoll v. Miami-Dade Cty., 480 F.3d 1072,
1083 (11th Cir. 2007). A failure to provide a reasonable accommodation is a
theory of recovery, and the one Rood picked. See Quality of Life, 805 F. App’x
at 767.
In moving to dismiss the pleading, the Town concedes that Rood is a
qualified individual with a disability. But it argues this case cannot stand
because Rood never requested a specific ADA accommodation. For support,
the Town attaches to its motion Rood’s application for special exception and
request for re-hearing.3 The Town then argues, even if Rood made a specific

“In ruling on a motion to dismiss, the district court may consider an extrinsic document if
it is (1) central to the plaintiff’s claim and (2) its authenticity is not challenged.” SFM
3

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request, the walkover is not a reasonable accommodation.

The Court

disagrees.
To show that a government entity refuses to provide a reasonable
accommodation,

“the

plaintiff

must

show

that

she

requested

an

accommodation or that the need for such an accommodation was obvious and
the entity refused to provide one.” Medina v. City of Cape Coral, Fla., 72 F.
Supp. 3d 1274, 1278 (M.D. Fla. 2014). But “the duty to make a reasonable
accommodation does not simply spring from the fact that the handicapped
person wants such an accommodation.” Schwarz v. City of Treasures Island,
544 F.3d 1201, 1219 (11th Cir. 2008).

A defendant must be “given an

opportunity to make a final decision with respect to [a plaintiff’s] request,
which necessarily includes the ability to conduct a meaningful review of the
requested accommodation to determine if such an accommodation is required
by law.” Id. (quotation omitted). “Simply put, a plaintiff must actually request
an accommodation and be refused[.]” Id.
At this early stage of litigation, the complaint sufficiently alleges that
Rood asked the Town for the walkover as an accommodation for his wheelchair.
True, Rood’s application for a special exception did not make a specific request

Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The Town
and Rood agree the application is central to this suit and is authentic. The Court thus will
consider it in deciding the Town’s motion.

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to accommodate his disability. But Rood’s narrative section coupled with the
attached documents informed the Town that he sought an accommodation for
his wheelchair. For example, attached to the application was an excerpt from
the State of Florida Department of Environmental Protection’s final order on
his environment permits that described the walkover as an accommodation:
The dune walkover is proposed as a 1,491.50 square-foot . . . pilingsupported wooden walkway five feet in width. Its original six-foot
width was reduced to five feet, which remains adequate to
accommodate the anticipated need for the use of a wheelchair or
mobility device by one of the Applicants. The steps at the
waterward end of the proposed dune walkover were replaced with
ramps, also for use by a wheelchair or similar device.
(Doc. 40-1 at 38 (emphasis added)).

And the order later commented the

walkover’s footprint was “the minimum necessary to allow access by
wheelchair or mobility.” (Doc. 40-1 at 42).
These statements are consistent with the Second Amended Complaint
that sufficiently alleges the Town has known for years that Rood pursued the
walkover to accommodate his wheelchair. For example, the complaint alleges
that Rood testified at the administrative hearing he needed the walkover for
his wheelchair and that the walkover would have ramps at both ends to meet
his mobility needs. At this stage, these allegations are enough to suggest the
Town knew the walkover was necessary to accommodate Rood’s disability.
(Doc. 36 at 6). Finally, the Town cites no case in which a court has dismissed

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an ADA claim on a motion to dismiss because a plaintiff did not adequately
plead that he made a specific demand for a reasonable accommodation.
The Town’s next argument fares no better. It says the walkover is not
even a reasonable accommodation. The Supreme Court has defined reasonable
accommodation to mean one that provides “meaningful access” to the benefit
plaintiff seeks. Alexander v. Choate, 469 U.S. 287, 300-01 (1985). And the
reasonable accommodation in Title II ADA cases is a highly fact-specific
inquiry. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)
(cleaned up). At this stage, the Court cannot determine whether the walkover
qualifies as a reasonable accommodation. That review is narrowly focused on
whether Rood states a claim for relief under the statute. To do so, he provides
factual

allegations

establishing

what

he

believes

is

a

reasonable

accommodation. The Town’s argument is better suited (if at all) for summary
judgment after the record is more developed.
The Town brings one last argument.

It asserts Rood’s claim for

declaratory relief is an insufficient, formulaic recitation of the elements. But
the request for declaratory relief is not a cause of action. It is merely a remedy
for the alleged ADA violation. The Town does not point to any cases, nor could
the Court locate any, that support this argument.
In sum, the Court finds Rood has stated a plausible violation of Title II
of the ADA.

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Accordingly, it is now
ORDERED:
1. Defendant Town of Fort Myers Beach’s Motion to Dismiss Plaintiff
Edward Rood’s Second Amended Complaint (Doc. 40) is DENIED.
2. Defendant must answer the Second Amended Complaint on or before
May 12, 2021.
DONE and ORDERED in Fort Myers, Florida on April 28, 2021.

Copies: All Parties of Record

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