Denise Payne (“Payne”), the plaintiff, is a resident of Florida who has cerebral palsy and uses a wheelchair for mobility. Payne is the founder of The National Alliance for Accessibility, Inc. (“National Alliance”), the other plaintiff in the case, and a non-profit corporation based in Florida. Payne is currently establishing local chapters in several cities in North Carolina. National Alliance’s mission includes addressing accessibility issues regarding places of public accommodation and preventing disability discrimination. Payne travels to North Carolina several times a year to meet with friends and to recruit members for National Alliance.
In October 2011, Payne visited Fayetteville, North Carolina and visited a store owned by Belk, the defendant. She encountered architectural barriers that denied her full and equal access to the benefits and services of the store, including: “lack of an accessible entrance and accessible paths of travel inside the store; the lack of access to goods and services;” and lack of access to the restroom which did not provide: the required standard stall, door hardware and compliant grab bars; dispensers within reach range; and, a stall door with the necessary clear floor space for a person with a disability.
On June 28, 2012, Payne and National Alliance (“plaintiffs”) filed suit under Title III of the Americans with Disabilities Act (“ADA”) arguing they were denied “access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations” of the defendant’s store. Plaintiffs also claimed that Belk’s failure to remedy these ADA violations is continuing discrimination, and sought injunctive relief (i.e., a court-order to require the defendant to make his store ADA compliant by fixing the architectural barriers).
On August 2, 2012, Belk filed a motion to dismiss the complaint claiming that plaintiffs do not have standing for their claims. Plaintiffs filed a response to the motion on August 22, 2012 to which defendant did not file a reply.
To satisfy standing, a plaintiff must prove: (1) she has suffered an “injury in fact,” which is concrete, particularized, and actual or imminent; (2) there is “a causal connection between the injury and the conduct complained of;” and (3) that it is likely that the injury will be remedied by a favorable judicial decision or action. Furthermore, a plaintiff must show “a substantial likelihood” that the specific harm will be repeated to be an injury in fact.
However, a plaintiff’s stated intent to return to places previously visited is not sufficient to establish standing to seek injunctive relief. Payne needs to show that she has more than “some day intentions” to return by either offering a “description of concrete plans” or specificity as to when “some day” will occur. In determining the likelihood that a Title III plaintiff has suffered an injury in fact that will be repeated, the court considered the following four factors: “(1) the plaintiff's proximity to the defendant's place of public accommodation; (2) the plaintiff's past patronage; (3) the definiteness of the plaintiff's plan to return; and (4) the plaintiff's frequency of nearby travel.”
Here, the court stated that Payne lacked standing because she did not have anything more than “some day intentions” to return to North Carolina or the defendant’s store. While Payne travels to North Carolina several times a year, this is not sufficient to grant her standing in this case. The court found that her home was more than seven hundred miles from defendant’s store, and that the plaintiff “has … no definitive plans, past or present, to return to defendant’s store.”
In some situations an organization may have associational standing to sue on behalf of its members. In order to have associational standing, an organization must prove that: (1) at least one member of the organization has standing to sue in his or her own right; (2) the interests the organization seeks to protect are germane to its purposes; and (3) neither the claim asserted nor the relief requested requires participation of individual members. Here, the court determined that neither Payne nor any other member of National Alliance had standing to sue on their own. Thus, National Alliance did not have associational standing because it did not meet the first requirement.
The court further stated that National Alliance did not allege an injury in fact to the organization itself, which is required to have standing, based on the organization itself suffering an injury. National Alliance’s alleged injury did not affect the organization’s activities or constitute a substantial drain on its resources but merely affected its social interests and mission to promote equality for persons with disabilities. The court ruled that this injury was too abstract rather than concrete and particularized to meet the injury in fact requirement. Thus, National Alliance lacks standing through this theory of standing as well.
Payne lacked standing to bring her Title III claim, and as a result, National Alliance lacked associational standing to bring its claim.
In the context of standing claims for public accommodations cases, this case is significant because it requires a heightened specificity – “a substantial likelihood” that the specific harm will be repeated, which is evaluated using the four-factor test to prove Title III standing in the Fourth Circuit. This standard also is utilized in the Fifth Circuit to determine a plaintiff’s standing under Title III of the ADA, whereas the Sixth and Eleventh Circuits have less demanding standing requirements – “a likelihood of returning” and “an inference that [plaintiff] will suffer future discrimination” respectively. In National Alliance for Accessibility, Inc. v. Belk, a plaintiff meets the requirement of standing to sue in a Title III ADA claim where he or she has specific, concrete plans to return to the defendant’s place of public accommodation. While the plaintiff here had plans to return to the defendant’s store, she did not have an exact date in which she would return.
This requirement is contrary to the standard used in recent Fourth Circuit cases, such as Daniels v. Arcade, L.P. (2012), where the Fourth Circuit held that a plaintiff's alleged general intent to return to the place of his Title III ADA injuries was sufficient to confer standing. However, the court in Daniels declined to use the four-factor test for standing generally used in Title III cases, which the court in Payne used to determine plaintiff’s standing.This case reflects a conscious move away from past Fourth Circuit practice regarding a plaintiff’s standing in a Title III ADA claim. Based on this case and the cases of National Alliance for Accessibility, Inc. v. Waffle House, Inc., (2011), Norkunas v. Park Road Shopping Ctr., Inc., (2011), and Payne v. Sears, Roebuck & Co. (2012), the Fourth Circuit has clearly adopted the four-factor test for standing in Title III ADA claims rather than the less demanding standard used in Daniels. This shift in legal practice toward increased specificity for standing in Title III ADA claims will make it more difficult for plaintiffs to meet the standing requirement to sue in the future.