Recently, the United State Eleventh Circuit Court of Appeals ruled that an Americans with Disability Act (“ADA”) Plaintiff had standing to bring his ADA access complaint as a “tester”.

Joe Houston, a Florida resident who is paralyzed and confined to a wheelchair, has filed more than 270 ADA access lawsuits both in the Southern District of Florida and the Middle District of Florida.

wheelchair

Defendant Marod, the owner of a Presidente supermarket targeted by Mr. Houston, in its Motion to Dismiss argued that Houston’s professed intent to return to this particular grocery store was undermined by his filings in the other 270+ cases that he filed.  Specifically, one can only patronize so many businesses, so if Mr. Houston planned to imminently return to all the other locations identified in his other ADA access lawsuits, his plan to return to this particular business was not credible.  Furthermore, Marod argued that Mr. Houston could not demonstrate any threat of imminent discrimination since Mr. Houston lived in Broward County and this store was located 30 miles away and Mr. Houston had not indicated when his prior visits to the store had occurred or mentioned any “concrete” plans to return.

But, Mr. Houston countered with an affidavit in response to the Motion to Dismiss in which he produced a receipt purporting to show that he had shopped at this particular store.  Further, the affidavit noted that Mr. Houston regularly passed this particular grocery store in his travels because it is located only two (2) miles from, and is on the route, to the law firm that represents him in his various ADA access cases.

The district court applied a four-factor test to determine the likelihood that Mr. Houston would return to this particular store.  The four (4) factors were: (1) the proximity of the business to Plaintiff’s residence; (2) the Plaintiff’s past patronage of the business; (3) the definiteness of the Plaintiff’s plan to return; and (4) the frequency of Plaintiff’s travel near the defendant’s business.  While the district court did not question that Mr. Houston had visited this supermarket in the past and planned to do so in the future, it focused on the fact that Mr. Houston was an ADA tester.  And therefore, the district court found that because Mr. Houston was a tester, he was not a bona fide patron and further that his test visits were part of a testing campaign rather than a genuine prayer for relief by an aggrieved patron.

The Eleventh Circuit, in its review, focused on whether Mr. Houston’s tester motive and tester status deprived him of standing to sue for ADA access violations. First, the Court noted that the Supreme Court has recognized the tester standing under the Fair Housing Act.  Second, the Court also found that the fact that Mr. Houston’s motives were based on testing did not negate the fact that he had a right to the “full and equal enjoyment of the . . . facilities” of the Presidente Supermarket.  That legal right was not dependent on his motives.

Accordingly, the Eleventh Circuit found that Mr. Houston had standing to seek redress under the ADA access statutes regardless of his tester motives.  However, because Mr. Houston sought injunctive relief in his lawsuit he also had to show a real and immediate threat of future injury.  And, the Court found that the proximity of the store to his attorney’s office, the fact that he traveled by the store on a regular basis and his stated intent to return, were sufficient to show the threat of future injury.

This opinion will likely limit the ability of Florida businesses to attack a plaintiff’s standing based on tester status.  But, the Eleventh Circuit reiterated that there must be sufficient facts that show threat of future injury noting that Mr. Houston did “not live hundreds of miles away from the store with no particular reason to return.”

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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.