Keywords: bona fide patron, standing, tester of ADA compliance, Title III, place of public accommodation, injunctive relief
Summary: An individual who is not a bona fide patron of a place of public accommodation, but is a tester of ADA compliance, has standing to sue under Title III in the Eleventh Circuit and can seek injunctive relief if there is an immediate threat of future harm.
Joe Houston is paralyzed and uses a motorized wheelchair for mobility. He also uses a van that is equipped and modified for his traveling. He filed suit against Marod Supermarkets, Inc. (“Marod”) after visiting one of its branches – the Presidente Supermarket – and encountering accessibility barriers.
Houston claimed that this branch violated Title III of the ADA based on the following barriers: (1) too few accessible parking spaces, (2) no clear path of travel connecting the essential elements (i.e., primary functions) of the supermarket, and (3) restrooms that failed to meet ADA regulations.
The district court granted Marod’s motion to dismiss Houston’s claims based on a lack of standing to bring the Title III claim. The Court explained that Constitutional standing in this circumstance is premised on whether an individual is a bona fide patron of the business. The Court found that Houston was a “tester of ADA compliance” because he “openly stated [a] desire to act as a tester”, and thus was not a “bona fide patron” of the Supermarket and did not have standing. The court dismissed Houston’s claim and Houston appealed the decision.
Title III of the ADA prohibits any owner or operator of a “place of public accommodation” from discriminating against any individual on the basis of disability “in the full and equal enjoyment” of its facilities and services. As defined in the Act, a public accommodation includes grocery stores. Included in the examples of discrimination is a “failure to remove architectural barriers … in existing facilities.” Houston sought injunctive relief in order to require the supermarket to correct its Title III violations, because injunctive relief is the only form of relief available under Title III.
This case posed a matter of first impression in the Eleventh Circuit because the court previously had not considered whether a tester could have standing under Title III of the ADA.
The Court first looked to the remedies provided by the plain language of the statute and found that Sections 12182(a) and (b)(2)(A)(iv) confer a legal right on anyone who suffers discrimination on the basis of their disability at a covered facility, irrespective of their motivation for being at the facility. Secondly, Sections 12188(a) and (a)(1) state that “no individual” may be discriminated against on the basis of disability, and that “any person” who suffers discrimination on the basis of disability may bring suit under this section. Comparing that language to a Fair Housing Act decision by the Supreme Court in Havens Realty Corp v. Coleman, the Court found that the breadth of that phrasing “necessarily encompass[es] testers”.
Finally, because Congress has limited coverage in other anti-discrimination statutes to “bona fide patrons” alone, the fact that the limitation wasn’t imposed here demonstrates that the requirement does not exist. Notably, regarding specific activities in Section 12182(b)(1)(A) of Title III, coverage is limited to “clients or customers.” However, Houston did not make a claim for violation of this section. For these three reasons together, the Eleventh Circuit held that the legal rights Houston sought to enforce under Title III do not depend on whether Houston was a bona fide customer. Had Congress wanted to exclude “testers” entirely from coverage under Title III, it could have legislated to that effect.
To have standing under Article III of the Constitution there must be: (1) “injury-in-fact”; (2) “a causal connection between the asserted injury-in-fact and the challenged action of the defendant”; and (3) “that the injury will be redressed by a favorable decision.” When injunctive relief is sought there must be an additional showing regarding the “injury-in-fact.” Houston had to show a past injury by Marod, and a real and immediate threat of future injury.
In, Shotz v. Cates, the Eleventh Circuit held that plaintiffs who encountered architectural barriers when visiting a courthouse failed to plead a “’real and immediate threat of future discrimination’” because only past incidents of discrimination were pled, no attempt to return had been made, and an intention to return was not alleged. 256 F.3d 1077, 1083 (11th Cir. 2001). Conversely in, Stevens v. Premier Cruises, Inc., a similar issue of whether there would be a real and immediate threat of future injury for the passenger of a cruise ship was upheld, where the plaintiff pled an intention to ride the cruise line in the future.
Here, the Court considered whether there was an actual injury-in-fact and the likelihood that Houston would return to the Presidente Supermarket and suffer future discrimination. Before filing his lawsuit, Houston visited the Presidente Supermarket twice and encountered architectural barriers at each visit. Houston does live more than thirty miles away from the store, but the court noted that he traveled to the area on a regular basis to see his attorney who worked no more than two miles away. This supported Houston’s contention that he would visit the store in the future. Finally, Houston stated his desire to return to the store in the future. The court reasoned that Houston’s intentions to frequent the Supermarket again were not generalized, “some day intentions.” After considering the circumstances – and the undisputed facts – the Eleventh Circuit held that Houston had standing to seek injunctive relief, because of a real and immediate threat of future injury.
The court found that a “tester of ADA compliance”, in comparison to a “bona fide patron”, may have standing to sue for violations of Title III of the ADA. Additionally, the court held that Houston had standing to seek injunctive relief because of the real and immediate threat of future injury.
For those who live in the Eleventh Circuit, an extra tool is now in the tool-belt, as the entire citizenry can work to ensure that places of public accommodations are compliant with the ADA. Testers of ADA compliance have standing to sue under many provisions of Title III of the ADA, just as bona fide patrons do. The Fourth, Fifth, and Sixth Circuit Courts of Appeals have not addressed this issue yet. However, the district courts for the Western District of North Carolina, the Middle District of North Carolina, and the Eastern District (West Division) of North Carolina have all held that testers do not have standing.