FOX V. MORRIS JUPITER ASSOCIATES
NO. 05-80689-CIV, 2007 WL 2819522
SOUTHERN DISTRICT OF FLORIDA, SEPTEMBER 25, 2007


FACTS OF THE CASE:  The plaintiff, Mr. Allen Fox, filed a Title III ADA disability discrimination complaint against Morris Jupiter Associates, L.L.C. (“Defendant”). Mr. Fox claimed that because he uses a wheelchair, he was unable to maneuver in and around the Concourse Village Plaza, a shopping center in Jupiter, Florida. Additionally he was unable to enter particular shops, such as Radio Shack and Cingular Wireless without assistance. Despite the Concourse Village Plaza location, about 25 miles away from his home, Mr. Fox said that he would like to continue to shop there because it was close to his work and some of his relatives. However, at the time of the suit, Mr. Fox no longer worked in Jupiter Florida; he worked in Juno Beach, Florida.        

When Mr. Fox and his wife first began shopping at the Concourse Village Plaza, they always shopped together. He said that they had been visiting the shopping center for more than 7 years and during the course of that time, noticed several ADA violations. Such violations included an insufficient number of parking spots for individuals with disabilities, limited wheel-chair accessible paths from the parking lot to the shopping facility, inaccessible restrooms and other barriers that prevented entry into individual shops. Although he was always able to access the stores with the assistance of his wife, he was unable to do so alone. On two occasions, he tried to visit the shopping center alone. On his first visit, he was unable to enter the Radio Shack outlet explaining that he could not hold the door open at the same time he was trying to cross the door’s high threshold. In hopes that the barriers he encountered on his first visit were removed, he again tried to visit the Radio Shack outlet. He said that after a visual survey of the shopping center from his car, he realized that the barriers were still in place and thus did not exit his car.   

ISSUE IN THE CASE:  Whether Mr. Fox’s allegations were credible and whether he had standing to bring a Title III claim against the Defendant.

ARGUMENT:  Mr. Fox argued that the inaccessibility of Concourse Village Plaza denies his “full and equal enjoyment” of the Plaza’s goods, services and facilities in violation of ADA Title III. He requested injunctive relief (i.e., asking the court to stop the discrimination by ordering the removal of the barriers). The Defendant argued that Mr. Fox’s allegations were inaccurate—denying that the stores are inaccessible—and that he could not support his allegations. The Defendant further argued that Mr. Fox lacked standing to bring the claim, alleging that he could not prove that he would be injured again (i.e., unable to fully access the Plaza), which is required to prove standing. The Defendant argued that Mr. Fox had only attempted to overcome the barriers once (by himself) and that there are other Radio Shack and Cingular Wireless stores closer to his home. 
The court stated that proving a real and immediate injury will occur in the future depends on whether the discriminatory barrier remains in place, not how many times a plaintiff tried to overcome that discriminatory barrier. Additionally, the court stated that Mr. Fox had been visiting the shopping center for many years and has expressed his desire to return. The court determined that Mr. Fox’s allegations and intent to return, if the barriers were removed, were credible.

Second, with regards to standing, the court stated that when a plaintiff seeks injunctive relief against future violations of the ADA, it is necessary that they prove a “real and immediate” continuing threat of future harm. Because Mr. Fox’s job and his family are located near the shopping center, the court considered Mr. Fox’s stated desire to return to the shopping center credible. Additionally, the court indicated that the most compelling evidence Mr. Fox would return to the shopping center was that he had been visiting the shopping center for many years and had returned to the shopping center since filing the complaint. The court concluded that this desire and intent to return established that if the barriers were not removed, Mr. Fox would suffer a future harm in violation of the ADA.

The Defendant also argued that Mr. Fox should not be permitted to sue Concourse Village Plaza as a whole; rather he should only be able to sue the Radio Shack and Cingular Wireless outlets because those are the stores he claimed denied his access. The court did not agree, holding that Mr. Fox did not have to encounter all of the barriers at the Concourse Village Plaza, nor did he have to know of all barriers in order to get relief. Instead, if Mr. Fox was granted an injunction, it would apply to all barriers in existence at the Concourse Village Plaza. These finding were sufficient grounds to hold that Mr. Fox had standing to sue and proceed with his complaint for injunctive relief. 

RULING:  The court concluded Mr. Fox sufficiently demonstrated the credibility of his allegations, and that he had standing to sue because of a real and immediate continuing threat of future harm. The court denied the Defendant’s motion to dismiss and permitted Mr. Fox to proceed with the suit.

POLICY & PRACTICE:  When a individual with a disability seeks injunctive relief, such as for barrier removal, against a place of public accommodation for likely future violations of the ADA, the court may consider several factors, including: (1) the proximity to the plaintiff’s house, (2) the length of the plaintiff’s patronage, (3) the plaintiff’s intent to return, (4) and the plaintiff’s frequency of travel to the location. Not all factors must be met; but the more that are met, the more convinced the court will be that a future violation of the ADA will occur, and permit a plaintiff to sue for injunctive relief.

LINKS:  
Opinion: Not currently available.

Prepared by the legal research staff of the Burton Blatt Institute (BBI):
Centers of Innovation on Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center (Southeast DBTAC). This document does not provide legal advice. If you have further questions about the issues of this case that relate to you, please consult an attorney licensed in your state.