GREGORY A. PRESNELL, District Judge.
This case involves alleged violations of Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12181, et seq. The Court held a bench trial on January 9, 2004, after which the parties submitted post-trial memoranda. The Court submits the following findings of fact and conclusions of law, pursuant to Federal Rule of Civil Procedure 52.
I. The Parties.
Plaintiff, Jorge Luis Rodriguez, suffered a diving accident in 1985, which rendered him a quadriplegic. He is wheelchair-bound and has limited use of his arms and hands. Until recently, he lived and worked in Miami. Approximately one year ago, he moved to Deltona, Florida, and is currently unemployed. During the past few years, Mr. Rodriguez has filed almost 200 lawsuits against various establishments, alleging violations of the ADA. In most of these cases, Mr. Rodriguez has been represented by the same counsel, William Charouhis.
Defendant, Investco, LLC, is a Florida limited liability company formed to acquire a hotel known as Sandy Lake Towers ("the Facility").
II. Findings of Fact
The Facility, now known as Westgate Palace, is comprised of two 18-floor towers with floors numbered 1 through 19 (excluding 13), an intervening clubhouse, and surrounding grounds. Tower No. 1 is currently being renovated. Tower No. 2 is vacant and is not involved in this dispute. There are a total of 204 guest rooms in Tower No. 1.
Shortly after its acquisition of the Facility, Defendant hired an architect, James Garritano, to produce plans and specifications for renovation of floors 2 through 19 in Tower No. 1.
Renovation of Tower No. 1 is proceeding in two phases: (1) the top floors 10 through 19 and (2) the bottom floors 2 through 9. At trial, Defendant produced plans for two of the floors in phase one: floors 12 and 15. Defendant has obtained permits to renovate Floor 15 and has begun doing so. During phase one of the renovation project, the top 9 floors have been vacated. Rooms on the lower floors, however, are being rented during the renovations. Once the renovations are complete, Defendant claims that the Facility will be fully ADA compliant.
Plaintiff's Visit and Plans to Return
Plaintiff stayed at the Facility in May 2002, before Defendant owned or operated
At trial, Plaintiff testified that he wished to return to the Facility for another visit, and had made a reservation for the nights of June 22 and 23, 2004. This reservation was made two days before the trial commenced. Plaintiff could not explain why he would choose to stay at the Facility, when other nearby hotels admittedly meet his needs. (Doc. 78, Tr. at 120-121).
Plaintiff filed this lawsuit on August 9, 2002, against the Facility's former owner who, at the time was in bankruptcy.
The Renovations and ADA Compliance
Defendant's architect testified that he had been continuously involved in this renovation project since the fall of 2002. One aspect of the project is to make the Facility ADA compliant. In this regard, Defendant is providing for a total of ten handicap-accessible units, seven of which are fully ADA complaint and three with roll-in showers. The parties agree that 10 units will satisfy the numerical requirement under the ADA guidelines. According to Defendant's architect, these units, when completed, will comply with the ADA.
Plaintiff called an expert witness, Thomas Ricci, who introduced a report (Pl.Ex.1) listing the deficiencies inherent at the time of Defendant's acquisition.
III. Legal Analysis
A Cottage Industry is Born.
Congress enacted the ADA on June 26, 1990. Its stated purposes are:
42 U.S.C. § 12101(b).
The ADA provides, in pertinent part, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of ... facilities ... or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Id. § 12182(a). The ADA further specifically defines acts and omissions that constitute unlawful discrimination. See id. §§ 12182(b)(2)(A), 12183(a).
Congress did not, however, create any sort of administrative process to ensure compliance with the ADA's public accommodation provisions. Rather, the ADA contains a private right of action, id. § 12188(a), and right of action for the Attorney General, id. § 12188(b). Although the ADA's private remedies are limited to injunctive relief, id. § 12188(a), the ADA, nevertheless, contains an incentive to private litigation — an attorney's fee provision.
This statutory scheme has resulted in an explosion of private ADA-related litigation. For example, in this District alone, there have been hundreds of Title III cases filed in the past three years. These cases have been filed by a relatively small number of plaintiffs (and their counsel) who have assumed the role of private attorneys general.
This lawsuit is a case in point. Here, suit was filed less than a week after Plaintiff's counsel verified the ADA deficiencies. There was no effort to communicate with the property owner to encourage voluntary compliance,
Why would an individual like Plaintiff be in such a rush to file suit when only injunctive relief is available? Wouldn't conciliation and voluntary compliance be a more rational solution?
To Design And Construct Non-Compliant Facilities.
At trial in the instant case, Plaintiff claimed that the Facility is in violation of section 12183(a)(1) of the ADA and that Defendant has, therefore, discriminated against Plaintiff. In this regard, Plaintiff correctly identified an injury-discrimination-that, according to section 12183(a)(1), includes "a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities ..." 42 U.S.C. § 12183(a)(1). Plaintiff, nevertheless, did not (and could not) establish that Defendant committed that form of discrimination.
When the words of a statute are plain, a court should look no further to determine the statute's meaning. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001). In regard to section 12183(a)(1) of the ADA, it is plain that that provision does not create liability that runs in rem. Section 12183(a)(1) defines certain omissions (failures in the acts of design and construction) that constitute "discrimination for purposes of section 12182(a)." Id. Although it is somewhat de-emphasized in section 12182(a)'s grammatically passive language, the basic prohibition is that an owner, lessee (or lessor), or operator of a place of public accommodation shall not discriminate, on the basis of disability, against any individual "in the full and equal enjoyment of the ... facilities ... or accommodations of any place of public accommodation." Id. § 12182(a). As to facilities built for first occupancy after January 26, 1993, the ADA's plain language, therefore, makes it unlawful for a person to design and construct a place of public accommodation that fails to meet ADA accessibility guidelines.
Defendant purchased the Facility at a bankruptcy foreclosure sale on July 11, 2002. Although Defendant concedes that
Plaintiff relies on Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357 (S.D.Fla.2001), and similar cases to no avail when he argues that Defendant is liable for a violation of section 12183(a). South Florida Stadium, in pertinent part, holds that a failure to abide by ADA accessibility guidelines in post-ADA (new) construction evidences intentional discrimination against disabled persons. Id. at 1362. In the instant case, that is an irrelevant point. In light of the ADA's plain language, the intentional discrimination evidenced when one fails to abide by ADA accessibility guidelines can only be the intentional discrimination of a person who designs and constructs a place of public accommodation or causes that design or construction to be done. 42 U.S.C. §§ 12182(a), 12183(a)(1). Accordingly, the Court finds that Defendant did not violate section 12183(a)(1).
To Fail to Remove Architectural Barriers In Existing Facilities When Removal is Readily Achievable.
Section 12182(b) provides the "construction" of what constitutes prohibited discrimination for purposes of section 12182(a) — that is, discrimination against an individual "on the basis of disability in the full and equal enjoyment of ... facilities ... 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)-(b)(2). As one of its "[s]pecific prohibitions," section 12182(b)(2)(A) provides that such "discrimination includes, ... (iv) a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable...." Id. § 12182(b)(2)(A)(iv).
Once again, when the meaning of the statutory language is plain, a court should look no further than the language of a statute. CBS Inc., 245 F.3d at 1222. "In the absence of a statutory definition of a term, [courts are to] look to the common usage of words for their meaning." Id. (citation omitted). From section 12182(b)(2)(A)(iv)'s defined and undefined terms, it is plain, for instance, that an owner of an existing facility used for public accommodation has a duty, where it is readily achievable, to remove architectural barriers to disabled persons' access. Furthermore, because Congress did not define "existing facilities," it is plain from the common usage of those words that the section concerns facilities that have already been built.
To Avail ADA Remedies.
Section 12188(a) provides remedies available "to any person who is being subjected to discrimination on the basis of disability in violation of [sections 12181 et seq.] or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183...." 42 U.S.C. § 12188(a)(1). Accordingly, in a private lawsuit, relief is available only to a disabled person who is being subjected to a defendant's discrimination or who is about to be subjected either to a defendant's failure to design and construct an ADA-compliant facility or to alter a facility consistent with section 12183's requirements. Id.
At trial, Plaintiff did not establish that he "is being subjected" or "is about to be subjected" to prohibited discrimination by Defendant.
In sum, Plaintiff not only relied on an inapplicable legal theory to argue that Defendant is engaging in unlawful discrimination, but also failed to establish that Defendant has subjected Plaintiff to any discrimination in regard to the Facility. Plaintiff, therefore, failed to establish any basis for relief under the ADA.
For the forgoing reasons, the Clerk is directed to enter judgment for Defendant and against Plaintiff, with costs assessed against Plaintiff.
In light of section 12183(a)(1)'s plain meaning, to hold that section 12182(b)(2)(A)(iv) applies only to buildings built for first occupancy before January 26, 1993, would leave a gaping loophole in the ADA. Specifically, a person who did not violate section 12183(a)(1), but who purchased a facility previously designed and constructed in violation of that section, would not need to remove any architectural barriers from a facility, because the facility would not be considered an "existing facility." The ADA's plain language allows no such a loophole.
Sections 12182(b)(2)(A)(iv) and 12183(a)(1) cover different discriminatory acts. A person who designs and constructs a non-ADA compliant facility for first occupancy after January 26, 1993, remains liable for that act. Although the person may sell the property and thereby escape liability from private lawsuits, the person is still subject to liability in a lawsuit instituted by the Attorney General. 42 U.S.C. § 12188(b). Furthermore, a person who purchases an existing facility that was built in violation of section 12183(a)(1) still must remove architectural barriers to disabled persons' access if it is "readily achievable." Id. § 12182(b)(2)(A)(iv). While section 12183(a)(1)'s strict accessibility requirements may not be met, id. § 12183(a)(1), the purchaser is not in the position of the person who designed and built the facility and, in doing so, could have avoided creating barriers to access without much difficulty or expense. See Anderson v. Pennsylvania Dept. of Pub. Welfare, 1 F.Supp.2d 456, 464 (E.D.Pa.1998). Unlike, for instance, the language in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the ADA's plain language does not purport to impose potentially astronomical liability or confiscatory burdens on someone who simply purchases an existing non-compliant facility. See id. §§ 12182(b)(2)(A)(iv); 12183(a)(1).