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One Visit and Vague Plans to Return Not Sufficient to Allow ADA Access Claim

Businesses might see a ray of hope in a recent federal appellate court decision that rejected the ability of a wheelchair-bound patron and “tester” to pursue her claim against a property owner and shop in Cocoa Beach, Florida.

There is a veritable cottage industry of plaintiffs who bring claims against businesses, even those they have never visited. In an effort to stem the tide of such “drive by” claims, some states have enacted laws requiring businesses be given the opportunities to correct technical violations first, and a bill remains pending before Congress that is designed to achieve the same result. And now, a recent decision from the 11th Circuit Court of Appeals (covering Florida, Georgia and Alabama), offers some additional support.

In Patricia Kennedy v. Beachside Commercial Properties, LLC, et al., Ms. Kennedy sued the center owner and a shop to compel them to bring the premises into compliance with Title III of the Americans with Disabilities Act, which requires places of public accommodation be accessible to persons with disabilities. The Defendants challenged Ms. Kennedy’s “standing” to bring the suit, arguing she could not show a real and immediate threat of future injury because she most likely would not return to the shop and face future discrimination. Defendants noted that the Plaintiff lived approximately 175 miles away, had been to the store only once, and that she failed to detail how frequently she traveled to the area. In response, Ms. Kennedy filed an affidavit saying she traveled the Florida East Coast “frequently,” had made at least 10 visits to the Cocoa Beach area in the past several months and at least 50 times during the course of her lifetime” and claimed that she would continue to visit the area “frequently.” She also said that she “plan[s] to return to the property in the future” so that she can “shop, dine, and . . . monitor its ADA conditions.”

The trial court found that she did not have standing, and the Eleventh Circuit agreed. To have standing to bring such a claim, a plaintiff must show past injury and a real and immediate threat of future injury, the Eleventh Circuit said. The court noted that in the ADA context, the court’s inquiry into standing “has focused on the frequency of the plaintiff’s visits to the defendant’s business and the definitiveness of the plaintiff’s plan to return.” Taking into account all the facts, the court said her one-time visit to the business and vague future plans to return did not provide Kennedy with a right to pursue her claims.

“Tester” plaintiffs will now face higher hurdles to bring such claims, at least in the Eleventh Circuit. Time will tell if courts in other jurisdictions find that the Eleventh Circuit’s analysis persuasive.

While this decision certainly is a victory for businesses within the jurisdiction of the Eleventh Circuit, businesses can take steps to ward off claims by “testers” by consulting with experts who are well-versed in the architectural requirements of the ADA. Non-compliance issues often result from the failure to consistently inspect and maintain a property, allowing it to fall into disrepair. In addition, some states, such as California and Florida, provide mechanisms for a business to certify its compliance with architectural accessibility requirements, which include certification that the property complies with applicable ADA regulations.

Businesses should also keep in mind that mobility-impaired employees who must attend work on a daily basis have a better shot at pursuing such a claim. Employers’ attention to accessibility issues is critical for the purpose of creating an inclusive environment, as well as for avoiding or limiting liability, especially where the employer is aware of an employee’s mobility impairment. For example, office hallways that are blocked with boxes and cabinets in the available walking space could pose an issue for an employee with a mobility impairment. An employer’s failure to provide accessible workspaces could result in potential disability discrimination claims, including those based on a failure to accommodate.

Because the ADA, in both the employment and public access contexts, seeks to eliminate discrimination on the basis of a disability, incorporating accessibility into one’s business model is a must. Accessibility should be a priority for both customers and employees.

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