Larkin v. Envoy Orlando Holdings LLC
ORDER granting 14 Motion for summary judgment. Signed by Judge Gregory A. Presnell on 7/28/2015. (JU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:15-cv-439-Orl-31GJK
ENVOY ORLANDO HOLDINGS LLC,
This matter is before the Court on Plaintiff Bruce Larkin’s Motion for Summary Judgment
(Doc. 14), 1 Defendant Envoy Orlando Holdings, LLC’s (“Envoy”) Response in Opposition (Doc.
25), and Larkin’s Amended Reply in Support of Summary Judgment (Doc. 29). 2
This is a simple, single count case alleging several violations of the Americans with
Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”). Plaintiff asserts that Defendant owns a public
accommodation, Hiawassee Plaza in Orlando, Florida. The Complaint alleges that the plaza’s
parking, signage, and entrance access points/path of travel are not ADA compliant. The Defendant
does not dispute that the plaza is ADA noncompliant, but asserts it is fixing the problems and that
plaintiff does not intend to return. While a case typically progresses through discovery before
Plaintiff separately filed affidavits in support of summary judgment. (See Doc. 15).
Plaintiff filed supplemental affidavits in support of summary judgment. (See Docs. 30-1,
summary judgment is appropriate, when the material facts are undisputed, as they are here, summary
judgment is appropriate early in the proceedings.
Plaintiff is a disabled individual who is a resident of Orange County, Florida. On January
13, 2015 he visited Hiawassee Plaza at 6801 W. Colonial Drive, Orlando, Florida 32818 (“Plaza”) 3
where he encountered barriers that impeded his access to parts of the property due to his disability. 4
The Plaza is roughly eight (8) miles from the Plaintiff’s home and he drives by the property at least
once a month. (Doc. 30-2 ¶4). The ADA non-compliant aspects of the Plaza are chronicled in the
Plaintiff’s expert report demonstrating non-compliance with ramp inclines, signs, parking, curbs, as
well as others. (See Docs. 15-2 – 15-4). Plaintiff states that once the Plaza becomes ADA compliant,
he intends to return. Defendant has not disputed the expert material or Plaintiff’s affidavits. 5
A party is entitled to summary judgment when the party can show that there is no genuine
issue as to any material fact. Fed.R.Civ.P. 56. Which facts are material depends on the substantive
law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).
Defendant admits it owns the Plaza. (Doc. 24 ¶2).
Plaintiff also visited Golden Cue and Pub, which was located in the Plaza and was the
location of several of the ADA violations described in the Complaint. However, Golden Cue and
Pub is now closed, accordingly, Plaintiff no longer asserts that the ADA violations at that location
are at issue. (Doc. 29 at 3 n.2).
Plaintiff’s supplemental affidavits in support of summary judgment addressed the issues
raised in Defendant’s Response. (See Docs. 30-1, 30-2). The Defendant has not requested the
opportunity to file a sur-reply or in any way dispute the facts asserted therein.
When a party moving for summary judgment points out an absence of evidence on a
dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving
party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and citation
omitted). Thereafter, summary judgment is mandated against the nonmoving party who fails to make
a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than conclusory statements or
allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“conclusory allegations without specific supporting facts have no probative value”).
The general purpose of Title III of the ADA is to ensure “[n]o individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of . . .
accommodations of any place of public accommodation . . . .” 42 U.S.C. § 12182(a). In sum, Title
III creates a private right of action for injunctive relief for disabled individuals who have been
discriminated against by property owners for a denial of public accommodation based on the
disability. See Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670
(9th Cir. 2010) (setting out elements for Title III ADA claim). Discrimination includes a failure to
remedy architectural barriers in existing facilities where such remedy is readily achievable. See 42
U.S.C. § 12182(b)(2)(A)(iv).
Public accommodation is defined as, among other things, a shopping center. 42 U.S.C. §
In this case, the Defendant admits ADA violations are present, are in need remediation, and
are remediable: “Defendant does not challenge the need for ADA remediation . . . .” (Doc. 25 at 2).
Further, the Defendant has not challenged that Plaintiff is disabled, that he traveled to the subject
location, and encountered difficulty due to the ADA violations. Accordingly, the Plaintiff has
demonstrated that the material facts entitling him to relief under Title III are not disputed.
The Defendant’s only responses to the Motion for Summary Judgment are that the dispute
is mooted because the Plaza is presently working on fixing the ADA violations, the Plaintiff does
not have sufficiently concrete intentions of returning to the Plaza to have standing, and Plaintiff did
not include a prayer for attorney’s fees and should, therefore, not receive an award of fees. 7
The fact that Defendant is in the process of fixing the violations does not render this case
moot and Defendant has presented no authority to support this proposition.8
The doctrine of mootness derives directly from the case or controversy limitation
because “an action that is moot cannot be characterized as an active case or
controversy.” Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.1997).
“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486,
496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). As this Court has explained, “[p]ut
another way, ‘a case is moot when it no longer presents a live controversy with
respect to which the court can give meaningful relief.’ ”
Defendant also argues that Plaintiff has failed to defeat the affirmative defenses included
in Defendant’s Answer (Doc. 24), filed after the Motion for Summary Judgment. However, the
affirmative defenses are, at base, restatements of the arguments against summary judgment,
asserting that Plaintiff lacks standing for want of intent to return to the property and Plaintiff failed
to plead attorney’s fees. (See Doc. 24 ¶¶ 20-22). Because Defendant’s Response to the Motion for
Summary Judgment raises essentially the same issues, the Plaintiff has addressed the Defendant’s
affirmative defenses, in substance, by way of the Motion and the Reply. As for Defendant’s
affirmative defense asserting that the Plaintiff was looking for grounds to initiate a lawsuit, that does
not present a bar to injunctive relief under the ADA. See Petinsky v. N & D Holding, Inc., No. 1322438-CIV, 2013 WL 6511738, at *3 (S.D. Fla. Dec. 12, 2013) (“A plaintiff's status as a ‘serial
plaintiff’ or ‘tester’ with regard to ADA claims, however, does not negate his standing.”).
It may, however, be a factor of consideration at a time of assessing reasonable attorney’s
Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002). The Defendant admits there are
still ADA violations at the Plaza, accordingly, the case is still a live controversy.
Defendant’s central argument is that Plaintiff does not have sufficiently concrete plans of
returning to the Plaza to justify an injunction. It is true that general allegations of an intention to
return to a public accommodation at some indeterminate point in the future are not enough to
establish standing for an injunction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)
(“Such ‘some day’ intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of the ‘actual or imminent’
injury that our cases require.”). However, Plaintiff is a resident of Orlando, Florida and has clearly
stated: “Once the facility becomes ADA compliant and I can visit the premises free of
discrimination, I intend to return to visit the store.” (Doc. 15-1). Where a disabled individual states
that he intends to return to a public accommodation in his home town, eight miles from his home,
as soon as he will no longer be subject to discrimination based on his disability, then that person has
The Court will address the issues of fees and costs after Judgment is entered.
It is therefore
ORDERED that the Plaintiff’s Motion for Summary Judgment (Doc. 14) is GRANTED.
It is further ORDERED that Plaintiff shall file a proposal for injunctive relief including the
remediation to be accomplished and the timeframe therefore.
DONE and ORDERED in Chambers, Orlando, Florida on July 28, 2015.
Copies furnished to:
Counsel of Record
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