Cohan v. Ocean Club at Deerfield Beach Condominium Association, Inc.
Filing
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ORDER granting 8 Motion to Dismiss Plaintiff's Complaint. Plaintiff may file an amended complaint on or before 4/10/2014. See Order for further details. Signed by Judge James I. Cohn on 3/27/2014. (ns)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-60196-CIV-COHN/SELTZER
HOWARD COHAN,
Plaintiff,
v.
OCEAN CLUB AT DEERFIELD BEACH
CONDOMINIUM ASSOCIATION, INC. d/b/a
OCEAN CLUB AT DEERFIELD BEACH,
Defendant.
/
ORDER DISMISSING COMPLAINT
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss Plaintiff's
Complaint [DE 8] ("Motion"). The Court has reviewed the Motion, Plaintiff's Response
[DE 12], and the record in this case, and is otherwise advised in the premises. For the
reasons discussed herein, the Court will dismiss Plaintiff's Complaint with leave to
re-plead.
I.
BACKGROUND
This action arises from discrimination Plaintiff Howard Cohan allegedly endured
at the hands of Defendant Ocean Club at Deerfield Beach Condominium Association,
Inc. ("Ocean Club"). The Ocean Club leases, owns, or operates a parcel of real property
at 2080 East Hillsboro Boulevard, Deerfield Beach, Florida (the "Facility"). DE 1 ¶ 6.
Cohan alleges that the Facility is a place of public accommodation that must comply
with the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. DE 1 ¶ 12.
On November 4, 2013, Cohan visited the Facility. Id. ¶ 3. Cohan, who uses a
wheelchair for mobility, asserts that he suffered discrimination during this visit, because
he was forced to contend with barriers to accessibility at the Facility. Id. ¶¶ 13–15.
Cohan alleges that the Ocean Club failed to "provid[e] the requisite lift(s) in the pool,
Jacuzzi and/or spa area," in violation of ADA standards. Id. ¶ 17. Cohan filed his suit on
this basis, seeking to compel the Ocean Club to modify the Facility to conform to ADA
standards. Id. at 6. The Ocean Club responded with its Motion, arguing that the Facility
is not subject to ADA regulations, and that Cohan has alleged insufficient facts to
establish an ADA violation. See generally DE 8.
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to
dismiss where the factual allegations of the complaint cannot support the asserted
cause of action. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per
curiam). "Factual allegations must be enough to raise a right to relief above the
speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
allegations must give a defendant fair notice of the plaintiff's claims and the grounds
upon which they rest. Id. Thus, a complaint must contain "sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A complaint must be liberally construed, assuming the facts alleged therein as
true and drawing all reasonable inferences from those facts in the plaintiff's favor.
Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual
allegations. Id. A well-pled complaint will survive a motion to dismiss "even if it appears
that a recovery is very remote and unlikely." Id. at 556 (internal quotation marks
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omitted). Nevertheless, a plaintiff must provide "more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do." Id. at 555.
III. DISCUSSION
The Ocean Club moves to dismiss the Complaint on two grounds: (1) that its
Facility is a private residential property, and not a place of public accommodation, thus
ADA standards are inapplicable; and (2) that Cohan has failed to allege sufficient facts
to state an ADA violation. A factual dispute regarding whether the Facility is a place of
public accommodation precludes dismissal on the issue of the ADA standards'
applicability. Nevertheless, the Court agrees with the Ocean Club that Cohan's
allegations of discrimination premised upon violations of the ADA contain insufficient
facts to state a claim. Accordingly, the Court will grant the Motion, and will dismiss the
Complaint with leave to re-plead.
A. Whether the Facility Is Place of Public Accommodation Raises
Factual Issues Inappropriate for Resolution on a Motion to Dismiss
In its Motion, the Ocean Club argues that the Facility is a condominium building,
intended only for private residential use, which falls outside of the ADA's publicaccommodation requirements. DE 8 at 5–6 (citing Thompson v. Sand Cliffs Owners
Ass'n, Inc., No. 96-270, 1998 WL 35177067 (N.D. Fla. Mar. 30, 1998)). Cohan responds
that the Ocean Club participates in transient vacation rentals of the Facility's
condominium units to members of the public, bringing the Facility within the coverage of
the ADA. DE 12 at 2–3.1
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Cohan has submitted various evidentiary materials in connection with his
opposition to the Motion relating to whether the Facility is used for short-term rentals.
See DE 12-1 & 12-2. The Court has not considered these materials in arriving at its
conclusions. See Sampson v. Wash. Mut. Bank, 453 F. App'x 863, 866 (11th Cir. 2011)
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A private condominium building may be classified as a place of public
accommodation if it is used for short-term rentals of the variety normally associated with
hotels or inns. See Champlin v. Sovereign Residential Servs., No. 08-55, 2008 U.S.
Dist. LEXIS 115274, at *6–9 (M.D. Fla. Apr. 7, 2008). The Ocean Club ultimately may
be able to prove that the Facility is a private condominium building outside the scope of
the ADA. Nevertheless, whether the Facility is a place of public accommodation that
shares characteristics with hotels or inns, and is accordingly subject to the ADA, raises
a disputed factual issue inappropriate for resolution on a motion to dismiss. Accordingly,
the Court will deny the Motion insofar as it is premised on the Facility being a private
residential building beyond the reach of the ADA.
B. Cohan Has Pled Insufficient Facts to Support His ADA Claim
The Ocean Club contends that, even were the Court to find that the ADA applies
to the Facility, Cohan has alleged insufficient facts to support his claim. DE 8 at 6. The
Ocean Club argues that Cohan's allegations that the Facility lacks pool lifts do not state
a violation of ADA standards. The Court agrees that the Complaint contains insufficient
facts to state an ADA violation, and accordingly will dismiss the Complaint with leave to
re-plead.
Cohan's Complaint contains precious few statements of fact specific to this case.
A substantial part of the 26-paragraph Complaint describes the function, purpose, and
enactment of the ADA, without reference to the particulars of this lawsuit. See DE 1
¶¶ 9–11, 16. The majority of Cohan's remaining allegations are a collection of generic
statements that Cohan visited the Facility, encountered barriers in violation of ADA
(per curiam) ("In general, a district court should not look outside the complaint in a
motion to dismiss . . . .").
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standards, and suffered discrimination as a result. See id. ¶¶ 4–5, 12–15, 18–26. These
contentions are little more than a recitation of the elements of an ADA claim,
unsupported by underlying facts. See Norkunas v. Seahorse NB, LLC, 444 F. App'x
412, 416 (11th Cir. 2011) (per curiam) (discussing requirements of ADA claim). Such
conclusory allegations will not preclude dismissal. See Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
Having stripped away Cohan's discussion of the ADA and the Complaint's overly
conclusory allegations, what remains is Cohan's contention that the Ocean Club
discriminated against him by failing to provide pool lifts. See DE 1 ¶ 17. Cohan
specifically alleges that the Ocean Club failed to "provid[e] the requisite lift(s) in the
pool, Jacuzzi and/or spa area." Id.2 These allegations suffer from the fundamental flaw
that the relevant ADA standards do not require a pool lift in a pool, Jacuzzi, or spa.
A plaintiff premising an ADA claim upon barriers to accessibility must allege that
the ADA prohibits the barriers at issue. Duldulao v. La Creperia Café, Inc., No. 11-1413,
2011 U.S. Dist. LEXIS 149447, at *10–11 (M.D. Fla. Dec. 29, 2011); Access Now, Inc.
v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001). The parties are
in apparent agreement that 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. See DE 1 ¶ 17; DE 8 at 6.
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The Court notes that this allegation is also fairly vague. Does Cohan allege that
the Ocean Club's pool, Jacuzzi, and spa each lack a pool lift, or a sufficient number of
lifts? Or do only certain of these facilities lack "pool lift(s)"? Cohan's imprecision results
in a pleading that just barely gives the Ocean Club sufficient notice of the basis for
Cohan's claim against it and calls into question the plausibility of Cohan's allegations of
ADA violations. See Twombly, 550 U.S. at 555.
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Under these ADA standards, a swimming pool must have at least two accessible
means of entry. 36 C.F.R. § 1191 app. B § 242.2. Similarly, a spa must have at least
one accessible means of entry. Id. § 1191 app. B § 242.4. A pool lift, however, is only
one of several permissible accessible means of entry; the lack of a pool lift in either a
pool or a spa does not itself violate the ADA standards. Id. § 1191 app. B §§ 242.2,
242.4.
Cohan's allegation that the Jacuzzi may lack a pool lift also fails to state a
violation of these ADA standards, which make no reference to Jacuzzis. Indeed,
"Jacuzzi" does not necessarily refer to a specific type of facility or product, but instead
appears to be the name of a company that manufactures and markets a wide variety of
bath and spa equipment. See Jacuzzi, Inc. v. Franklin Elec. Co., No. 07-1090, 2008
U.S. Dist. LEXIS 4414, at *1 (N.D. Tex. Jan. 22, 2008). The precise nature of the
"Jacuzzi" to which Cohan refers in his Complaint is therefore unclear. Nevertheless,
because the applicable standards contain no requirement that any sort of facility include
a pool lift, as opposed to other accessible means of entry, see 36 C.F.R. § 1191 app. B
§ 242, Cohan's allegation that the Facility's Jacuzzi lacks a pool lift similarly fails to state
a violation of an ADA standard.
In short, Cohan's allegation that the Facility lacks "pool lift(s)," even taken as
true, does not state a violation of the applicable ADA standards. Cohan has accordingly
failed to plead facts to support his claim that he has suffered discrimination as a result
of the Ocean Club's violation of ADA standards, see Duldulao, 2011 U.S. Dist. LEXIS
149447, at *10–11, and the Court will dismiss his single-count Complaint. Nevertheless,
because it is possible that Cohan could state a claim by alleging additional facts
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regarding violations of ADA standards at the Facility, the Court's dismissal will be
without prejudice, and with leave to amend.
IV. CONCLUSION
It is accordingly ORDERED AND ADJUDGED that Defendant's Motion to
Dismiss Plaintiff's Complaint [DE 8] is GRANTED. Plaintiff's Complaint [DE 1] is
DISMISSED without prejudice. It is further
ORDERED AND ADJUDGED that Plaintiff may file an amended complaint on or
before April 10, 2014. Failure to file an amended complaint by this deadline will result in
the closing of the case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 27th day of March, 2014.
Copies provided to:
Counsel of record via CM/ECF
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