K. MICHAEL MOORE, District Judge.
This Cause is before the Court upon Defendants' Motion for Summary Judgment. The Court has consider the motion, response, and reviewed pertinent portions of the record, and accordingly enters the following Order.
This case arises from Plaintiff's allegation that he was denied access to Proplayer stadium because of his disability; he seeks injunctive relief pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. Edward Resnick is a quadriplegic, restricted to a wheelchair, and is disabled within the meaning of the Act. He is the president of Access Now, Inc. a not-for-profit corporation, associated for the purpose of bringing businesses into ADA compliance. Plaintiffs bring this suit against the South Florida Stadium Corporation (SFSC), a privately-held corporation that owns Proplayer Stadium (the Stadium); and the Stadiums' primary tenants, the Miami Dolphins and the Florida Marlins. Proplayer is a public accommodation that was constructed in 1987, prior to the enactment of the ADA. When configured for football games, the Stadium has approximately 75,000 seats, and over 40,000 seats when configured for baseball. Of these seats, approximately 190 are wheelchair accessible available during football games, and 171 for baseball games.
The Complaint alleges that Resnick was subjected to discrimination once in May 2000 when he visited the Stadium for a Marlins baseball game, and once in November 1999 when he attempted to buy tickets for a Dolphins game, but was unable to purchase accessible seating.
The architectural barriers that form the basis of this Complaint were identified by Plaintiffs' experts during pre-litigation inspection. Plaintiffs assert that they have reasonable grounds for believing that Defendants will not remove the architectural barriers.
Defendants moved for summary judgment, challenging Plaintiffs' right to bring this case and their ability to prove the elements thereof. Defendants contest Plaintiff Resnick's standing to sue, as he has not shown that he was denied access to any part of the Stadium, and accordingly he has not suffered an injury in fact. Defendants further challenge Access Now's associational standing, which is predicated entirely on Plaintiff Resnick's two experiences. Defendants deny the existence of architectural barriers in the Stadium, and to the extent that the technical violations identified by Plaintiffs are barriers, Defendants assert that Plaintiffs have failed to demonstrate that their removal is readily achievable. Finally, Defendants assert that they have met and exceeded their obligations under the ADA.
The Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure:
Fed.R.Civ.P. 56(c). Summary judgment is appropriate only if the record evidence shows that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir.1995). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In applying this standard, the Court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. at 157, 106 S.Ct. 1348.
However, the non-moving party may not "rest upon the mere allegations and denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably
I. Title III of the Americans with Disability Act
The Americans with Disability Act is divided into three sections: Title I regulates discrimination in the workplace; Title II prohibits discrimination by public entities; and Title III prohibits discrimination by private entities in places of public accommodation. Title III provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). In a private action under the ADA, a court may provide "any person who is being subjected to discrimination on the basis of disability in violation of" the Act injunctive relief, requiring a defendant to make its facility readily accessible to and usable by individuals with disabilities. Id. § 12188(a)(2). Discrimination prohibited by the Act includes a private entity's "failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). Where removal is not readily achievable, the entity incurs liability if it fails to make those goods, services and facilities "available through alternative methods if such methods are readily achievable,"
The Act sets forth accessibility guidelines, which identify the minimum technical requirements for ADA compliance for new construction and alterations to existing facilities.
Plaintiffs' prima facie case depends on Resnick's ability to show the following: 1) that he is disabled; 2) that the Stadium is a place of public accommodation; and 3) that he was denied full and equal treatment because of his disability.
Id. at 1059 (quoted in Concorde, 158 F.Supp.2d at 1363). Courts addressing the issue generally agree that subsection (v) provides an affirmative defense, on which defendants bear the burden of persuading the court that plaintiffs requested modification is not readily achievable. See, e.g., Colorado Cross, 264 F.3d at ___, 2001 WL 987475 (adopting Johnson's burden allocation analysis).
Having determined the parties' relative legal burdens, the Court must address Defendant's argument that Plaintiffs' lack standing to bring these claims. Defendants aver that Mr. Resnick suffered no injury based on the violations alleged in the Complaint; that he admitted to his lack of personal knowledge of these violation; and that his inability to establish standing is detrimental to Access Now's associational standing.
II. Plaintiffs' Standing
Article III standing requires a plaintiff to demonstrate three things: that he has suffered an "injury in fact;" that the injury was causally connected to the defendant's action; and that the injury will be redressed by judgment in his favor. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d
A plaintiff seeking injunctive relief must additionally allege "a real and immediate —as opposed to a merely conjectural or hypothetical—threat of future injury." Wooden v. Board of Regents of University Sys. of Geo., 247 F.3d 1262, 1284 (11th Cir.2001). Absent an allegation that he intends to return to the public accommodation, an ADA plaintiff fails to demonstrate this "irreducible minimum" and thus lacks standing to sue for injunctive relief. See Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001). A complaint which alleges only past incidents of discrimination "does not support a finding of an Article III case or controversy when the only relief sought is declaratory relief." Id. (quoting Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1348 (11th Cir.1999)).
Resnick's assertions are factually distinguishable from the cases on which the Eleventh Circuit based the Shotz holding.
Plaintiff's entry into the stadium does not automatically confer upon him a presumption that he was injured by any and all architectural barriers therein; his entitlement to relief depends on his showing that he was in fact injured, or subject to discrimination, as a result of the alleged violations. Plaintiff testified that he was aware of a line of cases standing for the proposition that once he enters the premises and experiences any form of discrimination, "that opens the door to every bit of discrimination on a mobility-impaired person."
Plaintiff's reliance on this theory is plain, as he testified to having no personal knowledge or memory regarding the barriers identified in the Complaint. When asked to describe in detail the discrimination
Plaintiff testified that he encountered difficulty with wheelchair seating, and the restrooms; these are the only two elements of the Stadium that he sought access to, personally inspected, or had actual knowledge of.
III. Plaintiffs' Case
As noted above, Plaintiffs satisfy their initial burden by showing that Resnick was denied full and equal enjoyment of the services or privileges of the Stadium because of his disability. Unless Plaintiffs have produced evidence that the Stadium presents architectural barriers which are prohibited by the ADA, and that the removal of these barriers is readily achievable, they have not met their burden. Colorado Cross, 264 F.3d 999; Concorde, 158 F.Supp.2d at 1363. Plaintiffs' case is based on two incidents of alleged discrimination: Resnick's attempt to attend a Dolphins game in 1999, and his attendance of a Marlins game in May of 2000.
Resnick testified that he was turned away from a football game due to a lack of accessible seating. Plaintiff testified that he did not personally try to purchase the tickets, that one of his companions tried by telephone to buy tickets. He reported
Inherent in Plaintiffs' argument, that the unavailability of accessible seats for a sold-out game constitutes discrimination, is a presumption that disabled patrons are entitled to a benefit which exceeds that available to the general public. The Act does not require a facility to afford a disabled guest a greater opportunity to purchase seats than his able-bodied counterpart.
Plaintiff's second experience with the Stadium (relevant to his Complaint) occurred in May 2000, when he attended a Marlins game. Plaintiff sat with his wife in the area of his choosing, behind first base. He complains that the wheelchair seating did not meet ADAAG requirements; "more than being not compliant, it doesn't even work."
Accepting the evidence set forth above, the Court considers in turn whether the obstacles Resnick encountered constitute barriers prohibited by the Act; and whether removal of such barriers is readily achievable.
A) Existence of Architectural Barriers
The parties sharply disagree in their assessment of whether the violations Resnick allegedly encountered constitute architectural barriers prohibited by the Act. Defendants contend that Plaintiffs have offered no proof that the alleged violations are barriers prohibited by the Act. Plaintiffs' Complaint presumes that any technical noncompliance with ADAAG constitutes an actionable violation of the Act. Their argument, advanced in their opposition memorandum, relies in part on a statement by the Department of Justice, describing architectural barriers as "elements of a facility that impede access by people with disabilities," which include more than just obvious physical impediments that block wheelchair access.
The Act does not require ADAAG compliance of existing facilities; accordingly, the Court cannot determine the Defendants' liability from finding that elements of the Stadium deviate from those Standards. See, e.g., Association for Disabled Americans v. City of Orlando, 153 F.Supp.2d 1310, 1322 (M.D.Fla.2001) (finding no legal duty to correct technical ADAAG violations in existing facility under Title II). The Standards nevertheless provide "valuable guidance" for determining whether an existing facility contains architectural barriers. Pasuiti v. New York Yankees, 87 F.Supp.2d 221, 226 (S.D.N.Y.1999). The Pasuiti court permitted the plaintiff therein to compare the challenged facility with the ADAAG standards "as part of their efforts to establish individual barriers to access." Id. A finding of noncompliance is not tantamount to finding an ADA violation; plaintiff carries the additional burden of showing that removal of the barriers is readily achievable. Upon consideration of both parties' arguments, the Court concludes that the obstacles encountered by Resnick, relating to his allegations that the wheelchair seating and restrooms were inaccessible, constitute prohibited barriers to access, which Defendants must correct if readily achievable. It is this part of Plaintiffs' case that ensures that Defendants' liability is limited to the "substantially less rigorous" standard of compliance contemplated for existing facilities under the Act.
Deviation from the standards is relevant but not determinative; it is one consideration from which the court may conclude that noncompliance impedes access. At trial, a defendant may be able to rebut this evidence by showing that despite the technical noncompliance, the challenged accommodation in fact allows disabled persons effective access. However, on summary judgment the Court cannot weigh the evidence proffered by the parties, but may only consider whether Plaintiffs have adduced sufficient evidence of each element of their claim in satisfaction of their initial burden.
Defendants have raised this argument in their memorandum, observing that Plaintiffs have not produced evidence of architectural barriers which would prevent disabled persons from attending events at the Stadium.
The Court cannot take such factors under consideration in determining whether Defendants are liable for the removal of architectural barriers identified in the present suit for two reasons. First, a private entity's good faith effort or attempt to comply with the ADA is only applicable in civil actions brought by the Attorney General, and only when considering the amount of civil penalty. 42 U.S.C. § 12188(b)(5); Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 707 (D.Or.1997). Second, Defendants' argument embraces the program accessibility standard, applicable to public entities under Title II of the Act, which considers whether the disputed facility is readily accessible to disabled persons, and affords defendants an "undue burden" defense. That standard is inapplicable to the Stadium's liability as a private entity pursuant to Title III. Cf. Association for Disabled Americans v. City Orlando, 153 F.Supp.2d 1310, 1316-1317 (M.D.Fla.2001). Consequently, while Defendants' representation that the Stadium is readily accessible to disabled persons may be commendable, it is not relevant.
B) Readily achievable
The crux of Plaintiffs' case depends on showing that removal of the identified barriers is readily achievable. The Act recognizes a balance between the right of disabled persons to enjoy access to public accommodations free of discrimination and the costs attendant to altering facilities constructed before its enactment. Consistent with this compromise, Title III requires only that a private entity "take remedial measures that are (a) effective, (b) practical, and (c) fiscally manageable." See Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1363 (S.D.Fla.2001).
To this end, the plaintiff must demonstrate that an injunction — particularly a considerably expensive injunction — is justified by the relief that it will provide. Whether a requested alteration would be effective is relative to the impediment presented by the barrier and the associated cost of removing it. For example, removal of a barrier that actually denies disabled persons access to an element of the accommodation would be greatly effective and the court would be justified in imposing a costly injunction, provided that the cost is proportionate to the benefit it offers. Conversely, injunctive relief would not be appropriate for de minimis violations that "do not materially impair the use of an area for its intended purpose, . . . [or] pose any apparent danger to persons with disabilities." Parr v. L & L Drive-Inn Restaurant,
1. Accessibility of Seating
To the extent that it is readily achievable, a public accommodation must provide a reasonable number of wheelchair seating spaces, dispersed throughout the arena, which provide lines of sight and choice of admission prices comparable to those for members of the general public. 28 C.F.R Part 36, App. A, § 36.308(a). Plaintiffs' argument that Defendants have a continuing obligation to add accessible seating until they approach the ADAAG goal of making 1% of total seating wheelchair accessible has no legal basis. As an existing facility, the Stadium must provide a "reasonable number" of accessible wheelchair seats. § 36.308(a).
Resnick could not personally attest to the alleged deficiencies relating to either dispersal of wheelchair seating or lines of sight from various locations.
Plaintiffs' entire argument on this element of their case is captured in a single paragraph, reflecting the experts' opinions, and concluding without discussion that this plan can be accomplished easily and without much difficulty or expense. Admittedly, "readily achievable" is a fact-intensive inquiry that will infrequently be decided on summary judgment; however, the plaintiff cannot survive summary judgment without producing "sufficient evidence to satisfy his burden that his suggested method of barrier removal is readily achievable." Colorado Cross Disability Coalition v. Hermanson Family L.P., 264 F.3d 999 (10th Cir.2001) (affirming judgment as a matter of law). Plaintiffs have proffered only "speculative concepts ... rather than evidence that a specific design was readily achievable." Id. (concluding that without precise cost estimates and specific construction plan, plaintiff could not satisfy its burden of showing that renovation is readily achievable). With almost identical evidence on this record, the Court agrees with the Colorado Cross court's determination, as to the sufficiency of plaintiffs' evidence required to satisfy their initial burden.
2. Restroom Access
Though he personally visited one restroom at the Stadium during his May 2000 visit, the gravamen of his complaint rests on his experience there seven years earlier, or on observations made by Bill Cody. Unfortunately, the absence of personal testimony hinders the Court's ability to conclude that the identified technical deviations from the ADAAG standards present significant impediments to disabled persons that would justify the imposition of costly renovations. Regardless, Plaintiffs completely failed to suggest a plan of modification, much less demonstrate that such modification would be readily achievable. Though Plaintiffs' expert opined that certain aspects of restrooms could be modified without great difficulty or expense, the report fails to specify the number of restrooms this would affect or the cost to correct the identified restrooms. Plaintiffs have failed to make a prima facie case with respect to this alleged violation.
The Court has examined the record evidence and argument, and concludes that Plaintiffs have failed to adduce competent evidence establishing their prima facie case. Plaintiffs seek modifications that Defendants have no obligation to make, and which have no basis in law. Plaintiffs have suggested ways in which the Pro-Player Stadium could improve its facilities and enhance the comfort of their disabled patrons. Plaintiffs have not, however, demonstrated a violation of law entitling them to injunctive relief. Accordingly, it is hereby ORDERED and ADJUDGED that Defendants' Motion for Summary Judgment be, and same is, GRANTED.
The other case, Shtoz v. South Florida Stadium Corp., Case No.: 97-2911-CIV-LENARD, challenged the absence of wheelchair accessible seating directly in front of the stage. Judge Lenard, adopting the recommendation of Magistrate Judge Garber, denied plaintiff's request for relief. Magistrate Judge Garber accepted the testimony of Defendants' witnesses that the Stadium was in full compliance with the ADA, and that Defendants had gone beyond its obligations under the Act. Defendants rely on the testimony of those same witnesses, James A. Diluigi and Kevin G. McGuire, to support their present motion for summary judgment. This Court cannot, on a summary judgment motion, give credence to this testimony, which is contested by the non-moving party.