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~etnnil Q!irtuit ------~··+------OWEN HARTY, Individually,

P laintif.f-Appellant,

-v.-

GREENWICH HOSPITALITY GROUP, LLC, dba Hampton Inn & Suites,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT (NEW HAVEN)

BRIEF FOR PLAINTIFF-APPELLANT

JOHN F. WARD, ESQUIRE, PLLC 200 Country Club Road Royersford, Pennsylvania 19468 (610) 952-0219

-and-

THOMAS B. BACON, P.A. 4868 South West 103rd Avenue Cooper City, Florida 33328 (954) 925-6488

Attorneys for Plaintiff-Appellant

i

TABLE OF CONTENTS

Page

I. PRELIMINARY STATEMENT ............................................................. 1

II. JURISDICTIONAL STATEMENT ....................................................... 1

III. STATEMENT OF ISSUES PRESENTED FOR REVIEW ................. 1

IV. STATEMENT OF THE CASE ............................................................ 2

V. STATEMENT OF FACTS .................................................................... 2

VI. SUMMARY OF ARGUMENT ............................................................ 9

VII. ARGUMENT

A. STANDARD OF REVIEW ............................................................... 10

B. DISCUSSION OF THE ISSUES ...................................................... 11

1. Mr. Harty Meets the Criteria for Standing Applied by District Courts In the Second Circuit ....................................................... 11

2. The District Court Applied An Overly Narrow Standard .......... 18

3. The ADA Requires The Broadest Interpretation of Standing .... 29

4. Lyons and Lujan Are Distinguishable ........................................ 36

5. The ADA Expands Actual Injury To Loss Of Equality Of Opportunity ................................................................................. 42

6. Plaintiff Should Not Have to Engage in a Futile Gesture .......... 47

7. Plaintiff Has Standing As A Tester ............................................ 53

VIII. CONCLUSION .................................................................................. 56

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Access 4 All, Inc. v. Absecon Hospitality Corp., No. 1:04-cv-6060, 2006 WL 3109966 (D.N.J. 2006) ...................................................................... 56

Access 4 All, Inc. v. G & T Consulting Co., LLC, No. 06 Civ. 13736(DF), 2008 WL 851918 (S.D.N.Y. 2008) ............................. 11, 16, 17, 50

Access 4 All, Inc. v. O.M. Management, LLC, No. 06-CV-0374, 2007 WL 1455991, at *8 (S.D. Ohio May 15, 2007) ........................................ 49, 50, 51

Access for America, Inc. v Associated Out-Door Clubs, Inc., Fed. Appx. 818, 818-20 (11th Cir. 2006) .......................................................... 27, 28, 39, 41

Access For The Disabled v. Tr. Herbert Chas Pohlman, 2:06-cv-00178 slip op. at 2 (M.D. Fla. 2007) ................................................................... 53

Alliance For ADA Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703, slip op. at 3 (11th Cir. 2000) ................................................... 24

Betancourt v. Ingram Park Mall, SA-10-cv-029 (W.D. TX 2010) .............. passim

Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999) .............. 24

Bruni v. Fine Furniture By Gordo’s Inc., 2007 U.S. Dist. Lexis 120 (M.D. Fla. 2007) ....................................................................................... 56

Bruni v. Fine Furniture By Gordon’s Inc., 2007 U.S. Dist. Lexis 120, at *2, (M.D. Fla. 2007) ................................................................................. 53

Bruni v. FMCO, LLC, 2007 U.S. Dist. Lexis 18641 (M.D. Fla. 2007) ....................................................................................... 56

Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142 (1907) ................. 7

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ..................................... passim

Clark v. Burger King, 255 F. Supp. 2d 334 (D.N.J. 2003) .......................... 49, 51

Clark v. McDonald’s Corp., 213 F.R.D. 198, 229 (D.N.J. 2003) ................ 25

iii

Clark v. McDonalds Corp., 213 F.R.D. 198 (D.N.J. 2003) ......................... 48

Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001 (1990) ........ 18n.2

Crazier v. Gamma Management Group, Inc., No. 04-6031, 2005 WL 2644996 (E.D. Pa. 2005) .......................................................................... 49, 50

Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) ................. 43

Daniels v. Arcade, L.P., No. 11-1191, 477 Fed. Appx. 125 (4th Cir. 2012) .......................................................................................... 6

Disability Advocates and Counseling Group, Inc., v. 4SK, Inc., 2005 U.S. Dist. Lexis 44389, at *17 (M.D. Fla. 2005) ............................ 53

Disabled Americans for Equal Access, Inc. v. Ferries Del Carribe, 405 F.3d 60 (1st Cir. 2005) ....................................................................... 49-50

D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) .......................................................................................... 24, 34

Doran v. 7-Eleven Inc., 524 F.3d 1034 (9th Cir. 2008) ............................... 22, 33

Doran v. 7-Eleven Inc., 524 F.3d 1034 (9th Cir. 2008) ............................... 48

Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007) .............................. 17, 51

Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003) ............................................................................... 22, 33n.10, 34 50

ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157 ................................................. 21, 22, 24, 32

ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157 ........................................................................................... 32

Evers v. Dwyer, 358 U.S. 202 (1958) .......................................................... 55

Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009) ........................... 22, 33

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979) .................................................................. 20, 21, , 32, 31, 32

iv

Green v. DGG Properties Co., Inc., No. 3:11–CV–01989 (VLB), 2013 WL 395484, at * 11-13, (D. Ct. 2013) ............................................ 15

Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582 (1983) .............. 23, 33

Harty v. Bull’s Head Realty, No. 3:11–CV–01760 (VLB), 2013 WL 1131625 (D. Ct. 2013) ................................................ 13, 14, 15, 16, 17

Harty v. Burlington Coat Factory of Pennsylvania, LLC, No. 2:11-cv-01923-RK, 2011 WL 2415169 (E.D. Pa. 2011) .................. 17

Harty v. Simon Property Group, L.P., No. 11–110–cv, 428 Fed. Appx. 69 (2d Cir. 2011)............... 12, 13, 15, 16, 17, 53

Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) ...................... 20, 31, 54

Hensley v. Eckerhart, 461 U.S. 424, 445(1983) .......................................... 24

INS v. Center for Immigrants' Rights, 502 U.S. 183 (1991) ....................... 18n.2

Jackson v. Birmingham Bd. of Education, 544 U.S. 167 (2005) ................ 10

Johnson v. Gambrinus Company, 116 F.3d 1052 (5th Cir 1997) ................. 40n.6

Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000) ...... 55, 56

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................. passim

Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ................. 24

Maloney v. City of Marietta, 822 F.2d 1023 (11th Cir. 1987) ..................... 56

Molski v. Army’s Huntington Beach, 359 F. Supp. 2d 938, 947 (C.D. Cal. 2005) ....................................................................................... 49, 51

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007) ........................................................................................... 24, 34

Molski v. Price, 224 F.R.D. 479, 483 (C.D. Cal. 2004) .............................. 53

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) ................. 22, 33, 34

Norkunas v. Seahorse NB, LLC, Case no. 3:09-cv-934, slip op. At 10 (M.D. Fla. June 6, 2010, DE 28) ............................................................ 27, 39, 56

v

Parr v. L & L Drive-Inn Property, 96 F. Supp.2d 1065, 1082 (D. Hawaii 2000) ...................................................................................... 25

Pickern v. Holiday Quality Foods, 293 F.3d 1133 (9th Cir. 2002) ............. 48, 50

Pierson v. Ray, 386 U.S. 547 (1967) ........................................................... 55

Public Citizen, Inc. v. Bomer, 274 F.3d 212, 218 (5th Cir. 2001) .............. 43

Robinson v. American Honda Motor Co., Inc., 551 F.3d 218 (4th Cir. 2009) .......................................................................................... 10

Schatz v. Rosenberg, 943 F.2d 485 (4th Cir.1991)...................................... 10

See Harty v. Simon Property Group, L.P., 2010 WL 5065982 (S.D.N.Y. Dec. 7, 2010) .................................................................. 13, 15, 16, 17

Small v. General Nutrition Cos. 388 F. Supp. 2d 83 (S.D.N.Y. 2005) ....... 50

Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ............ 55

Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ............ 55

Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) 55, 56

Square, LLC, 2007 U.S. Dist. LEXIS 99118 ............................................... 27

Steger v. Franco, 228 F.3d 889 (8th Cir. 2000) ............................................ 49

Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir. 2000) ...................... 28, 48

Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ................... 20, 30, 31, 54

Watts v. Boyd Props., Inc., 758 F.2d 1482, 1485 (11th Cir. 1985) ............. 55

Statutes:

Article III of the Constitution ......................................................... 10, 13, 17, 18, 20

42 U.S.C. § 12101(a)(6) ............................................................................... 52

42 U.S.C. § 12101(a)(7) ............................................................................... 51

42 U.S.C. § 12101(b) ................................................................................... 19, 29

vi

42 U.S.C. § 12182(b)(1)(A)(ii) .................................................................... 45

42 U.S.C. § 12188 ........................................................................... 22n.5, 52, 33n.11

42 U.S.C. § 2000 .......................................................................................... 22, 33

42 U.S.C. § 12182(b)(1)(A)(I) ..................................................................... 44, 45, 51

42 U.S.C. §§ 12181 et seq. ........................................................................... passim

42 U.S.C.§ 12101(a) .................................................................................... 19, 30, 51

Fed. R. Civ. P. 12(b)(1) ............................................................................... 4

Local Rule 7 ................................................................................................. 4

Other Authority:

ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L.377 (2000) ............................................................................................. 40

H.R. Rep 101-485(II), at 126 (1990) ........................................................... 22n.4, 33

Kelly Johnson, Note, Testers Standing Up For Title III of the ADA, 59 Case W. Res. L. Rev. 683, 710 (2009)

I. PRELIMINARY STATEMENT

This is an appeal from the decision of the United States District Court for the

Southern District of New York, The Honorable Alfred V. Covello presiding, dated

October 31, 2012.

II. JURISDICTIONAL STATEMENT

Pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343 the district court below

had original jurisdiction to hear this matter as it arose from Appellee's violations

of Title Ill of the Americans with Disabilities Act, 42 U.S.C. §12181 et seq. The

district court entered a final judgment in favor of Appellee on October 31, 2012.

Mr. Harty filed his notice of appeal to the United States Court of Appeals for the

Second Circuit on November 19, 2012. Appellate jurisdiction is authorized by 29

U.S.C.A. §1291.

III. STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Did the district court err in holding that the relief sought by Plaintiff would

not redress any actual injury, ongoing continuous injury, or threatened

future injury?

2. Did the district court err by applying the concrete plan and proximity tests

in ruling that Plaintiff lacked standing?

3. Did the district court err in declining to recognize tester standing?

1

IV. STATEMENT OF THE CASE

Appellant/Plaintiff, Owen Harty ("Harty") filed a Complaint seeking

injunctive relief for the removal of barriers at the Hampton Inn & Suites, located at

26 Mill River Street, Stamford, CT 06902, a place of public accommodation,

which discriminated against him on the basis of his disability. This property is

owned by Appellee/Defendant, Greenwich Hospitality Group, LLC

("Greenwich"). Greenwich moved to dismiss the Complaint on the grounds that

Harty lacked standing. The district court granted Greenwich's Motion to Dismiss.

This appeal followed.

V. STATEMENT OF FACTS

Mr. Harty is paralyzed from the waist down and is bound to ambulate in a

wheelchair. A-7-8 ,-r 1. He qualifies as a disabled person within the meaning of

Title III of the ADA. Id. Mr. Harty is a resident of Broward County Florida. Id.

Mr. Harty is a private investigator and certified firearms instructor and

frequently travels throughout the United States to attend gun shows and for his

business. A-85, 121 ,-r2. While traveling, Mr. Harty visits places of public

accommodation to shop for goods and services. Id. Mr. Harty is also a tester for

purposes of monitoring the level of compliance of hotels and other commercial

establishments with the ADA. Id.

2

For several years, Mr. Harty resided in Nyack, New York with his family.

A-86, 121 ~3. Nyack is only twenty-seven (27) miles from Stamford Connecticut.

https://maps.google.com/ Mr. Harty's family, including his brother and sister, still

lives in the surrounding area. Id. Mr. Harty goes to the Nyack/White

Plains/Stamford area several times each year to visit his family and long-time

friends, go to gun shows and develop his business contacts. Id. His last visit to

the area was late August-September, 2011. This was a trip that Mr. Harty had

planned before this lawsuit was filed, but the impact of the hurricane restricted his

travel in the area severely. I d.

Mr. Harty frequently visits Southwestern Connecticut as part of his travels

to the Nyack/White Plains area. A-86, 121 ~3. Since the late 1980s, he has been in

the Stamford Connecticut area approximately 20 times or more. Id. Mr. Harty

frequently shops and travels in the area. The hotels in the Stamford area are close

enough to his home that they serve as a place for him to stay over when he visits

his family. A-86, 121-122 ~ 3.

Greenwich owns, operates and/or leases a place of public accommodation

known as Hampton Inn & Suites, 26 Mill River Street, Stamford, CT 06902. A-7

~ 2. Mr. Harty stayed at the Hampton Inn on November 19-20, 2010. A-36 ~ 10,

A-86, 122 ~ 4. There, Mr. Harty encountered numerous conditions that

3

discriminated against him on the basis of his disability. A-86, 122 ~ 4, 124-189.

He first checked into one room, but found it to be non-compliant and then moved

into another room. Id. In these rooms, Harty encountered an inaccessible tub,

shower, sinks, furniture blocking doorway access, toilets, and amenities out of

reach. Id. In the commons areas, the registration counter was too high, there were

areas that were inaccessible for wheelchairs, an inaccessible bar and

non-compliant lobby restroom. ld. The designated accessible parking space

lacked a compliant access aisle and was connected to the hotel via a route that had

extremely steep curb cuts. ld. Mr. Harty took photographs of the barriers that he

encountered at the Hampton Inn. A-124-189.

On November 11, 2011, Mr. Harty filed a Complaint seeking injunctive

relief pursuant to Title III of the Americans With Disabilities Act, 42 U.S.C.

Sections 12181, et seq. ("ADA") for the removal of barriers at Greenwich's place

of public accommodation which discriminate against him on the basis of his

disability. A -6-16.

Greenwich then filed a Motion to Dismiss pursuant to Fed. R. Civ. P.

12(b)(1) and Local Rule 7. A-17-18. Greenwich argued principally that Mr. Harty

lacked standing due to the fact that he is a Florida resident, lives too far from the

Hotel to assert an ADA Title III action and, as a result, "cannot demonstrate that

4

he will return to the area/and/or facility, which is located in Stamford,

Connecticut." ld. Greenwich further argued that Mr. Harty had not visited the

Hotel enough times in the past and lacked sufficient concrete plans to return to the

Hotel in the future. A-20-28. Greenwich argued that Mr. Harty's status as a tester

did not by itself create standing. A-29-30. Finally, Greenwich argued that the

Second Circuit's decision in Harty v. Simon Property Group. L.P. (in which the

panel reversed the trial court and ruled that Mr. Harty did have standing) was

factually distinguishable. A-30-32.

Mr. Harty filed a brief and affidavit in opposition, explaining that he had

lived in the local geographic area for several years and continues to often visit his

family, which continues to reside locally. A-85-189. Mr. Harty further explained

that his next planned trip to the Nyack area was scheduled for June 2012 to visit

family and friends. A-122.

Mr. Harty stated that he would be traveling to Stamford during that trip to

do some shopping. A-122. Mr. Harty explained that he would be needing a

compliant hotel in which to stay overnight, but wanted it to be compliant before he

goes. Id. He realizes that it would be a futile gesture to attempt to stay at the

Hampton Inn in its present condition unless he is willing to suffer discrimination.

5

ld. Mr. Harty stated that he would visit the hotel in June if the discriminatory

conditions are removed. Id.

On April27, 2012, Mr. Harty filed a notice of supplemental authority with

regard to the decision of the United States Court of Appeals for the Fourth Circuit

in Daniels v. Arcade, L.P., No. 11-1191, 477 Fed. Appx. 125 (4th Cir. 2012). In

Daniels, the Fourth Circuit reversed the decision of the district court on the issue

of whether a Title III ADA plaintiff had standing. The Daniels opinion is

significant in that it recognizes a low threshold for an ADA plaintiff to satisfy

standing requirements.

In its standing analysis, the Fourth Circuit panel declined to follow the four­

part proximity test applied by the district court, holding that the test "overly and

unnecessarily complicates the issue at hand." ld at 129. Instead, the panel held

that: "we are simply required to determine whether the amended complaint

sufficiently alleges that [plaintiff] suffered an injury that is concrete and

particularized, as well as actual or imminent." ld. The panel held that "[b ]ecause

[plaintiff] visited the Market and encountered these difficulties himself,

[plaintiff's] injury is "actual" and "concrete," rather than theoretical." Id. The

Court ruled additionally that a plaintiff may meet the threshold standing

6

requirement with respect to future injury by pleading that he has a plausible

intention to return to the subject property. Id. at 130.

The Daniels panel also held that an ADA plaintiff's past litigation history

cannot be held against him unless the prior actions were held to have been

frivolous. Id. at 130. The panel stated: "The right to sue and defend in the

courts .. .is one of the highest and most essential privileges of citizenship ... [and] is

granted and protected by the Federal Constitution." I d. (quoting Chambers v.

Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907)).

On October 31, 2012, the United States District Court for the District of

Connecticut issued a Judgment and Ruling Granting Motion to Dismiss in favor of

Greenwich on the issue of Mr. Harty's standing. A-232. The district court held

that Mr. Harty lacked standing to seek relief against the Hampton Inn under the

ADA for several reasons. First, the district court held that Mr. Harty lives in

Florida rather than in close proximity to the Hampton Inn in Stamford.1 A-239.

Second, the district court noted that Mr. Harty had stayed at the Hampton Inn on

only one occasion in the past. Id.

1The criteria applied by courts involving the distance between a plaintiff's residence and the subject property will be referred to as the "Proximity Test".

7

Third, the district court concluded that Mr. Harty's plans to return to the

area were too vague to establish a "concrete plan" because he "does not state a

basis for returning to the precise location of the Hampton Inn in question." A-239.

The district court noted that the shopping mall in the Simon case was located on I-

287 approximately seven (7) miles west of Mr. Harty's former hometown of

Nyack, whereas the hotel in the instant case is also located on I-287 but twenty-six

(26) miles east of Nyack in Connecticut. A-239-240. To the district court, this

was a distinction with a difference. On appeal, Mr. Harty urges the panel to

conclude that the respective locations of the properties in the two cases make no

difference whatsoever because both locations are on the same highway, both are

convenient to Nyack (less than a half hour drive) and that Mr. Harty regularly

visits both the Nyack and Stamford metropolitan areas.

Finally, the district court concluded (remarkably) that Mr. Harty's averment

that he had visited the Stamford, Connecticut area twenty (20) or more times since

the late 1980's did "not establish that he visits the immediate vacinity [sic] of the

defendant's inn with sufficient regularity or frequency to warrant his standing in

this case." A-240. It should be noted, however, that the district court based its

finding at least in part on an erroneous observation that Mr. Harty "does not

specify the number of times he visited Stamford, Connecticut, in particular, during

8

those former trips." A-240. However, in his affidavit, Mr. Harty specifically

states, "Since the late 1980's, I have been in the Stamford Connecticut area

approximately 20 times or more." A-121. Neither Mr. Harty nor his attorneys are

aware of even a single ADA Title III case in which a disabled plaintiff visited an

area twenty or more times and was found not to have standing. Mr. Harty

respectfully suggests that this is because no such case exists.

VI. SUMMARY OF ARGUMENT

The district court erred in asserting that the relief sought would not redress

any actual injury, ongoing continuous injury, or threatened future injury. The

district court, in finding a lack of standing in that Harty could not prove a concrete

plan to return to the subject property, looked solely to Harty's actual interactions

with the discriminatory barriers at the establishment. This is but one type of injury

contemplated by the ADA. The ADA also expressly contemplates a loss of

opportunity as an actionable injury and the futile gesture of attempting to return to

a non-compliant property. As such, so long as the discriminatory barriers remain

in place, the disabled Harty suffers an ongoing injury as he is denied the

opportunity to participate in and/or benefit from the goods and services offered at

the subject property.

9

Additionally, the district court erred in applying the concrete plans and

proximity tests in ruling that Harty lacked standing. The application of the

concrete plans and proximity tests represent the most narrow interpretation of

standing under the ADA. By contrast, Congress intended to confer standing to the

fullest limits of Article III of the Constitution.

Finally, the district court erred in disregarding tester standing. Civil rights

law depends heavily on private enforcement. For the ADA to be able to yield its

promise of equal access to the disabled, committed individuals must bring

litigation in order to advance a time when all public accommodations will be

compliant.

VII. ARGUMENT

A. STANDARD OF REVIEW

The standard of review for dismissal pursuant to Rule 12(b )(6) is de novo.

Robinson v. American Honda Motor Co .. Inc., 551 F.3d 218, 222 (4th Cir. 2009)

citing Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991). The Court must

assume the truth of the material facts as alleged in the complaint. Jackson v.

Birmingham Bd. of Education. 544 U.S. 167 (2005).

10

B. DISCUSSION OF THE ISSUES

1. Mr. Harty Meets the Criteria for Standing Applied by District Courts In the Second Circuit.

In determining that Harty lacked standing, the district court analyzed

whether Mr. Harty had shown a "plausible" intent to return to the site of the

violations. A-236. The district court noted that, "[i]n order to be 'plausible,' a

plaintiff's intent to return to the to the place of the purported violation must also

be demonstrated with reasonable specificity; 'speculative' 'some day' intentions to

return are insufficient." A-237 (citations omitted). In order to determine

plausibility, district courts have considered the following four factors: (1) the

proximity of Mr. Harty's residence to Greenwich's place of public

accommodation; (2) Mr. Harty's past patronage of Greenwich's place of public

accommodation; (3) the definitiveness of Mr. Harty's plan to return; and (4) Mr.

Harty's frequency of travel near Greenwich.

As the lower court correctly observed, in Access 4 All, Inc. v. G & T

Consulting Co., LLC, No. 06 Civ. 13736(DF), 2008 WL 851918 (S.D.N.Y. 2008),

the district court found that the plaintiff did have standing to file an ADA Title III

action against a shopping mall based on his averments that he had been to the

subject property in the past and had "definite plans to return." A-237. "Although

the plaintiff in that case did not live near the mall in question, in his affidavit, he

11

stated that he 'frequently' traveled on the road that passed in front of the mall and

used several stores in the vicinity. He stated that he intended to visit the mall

again and patronize its stores." A-238.

In Harty v. Simon Property Group, L.P., No. 11-11CH;v, 428 Fed. Appx. 69

(2d Cir. 2011), a case involving architectural barriers encountered by Mr. Harty at

the Nanuet Mall in Nanuet, New York, the Second Circuit held that the complaint

sufficiently pled standing based upon a plausible intent to return to the premises.

Id. at 72. In Simon, Mr. Harty alleged that he desired to return to the Nanuet Mall

"'to avail himself of the goods and services offered to the public at the property'

and as a tester 'to determine whether the property has been made ADA

compliant."' Id. at 71. The Second Circuit also noted that Mr. Harty submitted an

affidavit in opposition to the defendant's motion to dismiss averring (1) that he

taught courses in weapons handling and safety for which he traveled nationwide

and visited gun shows, (2) that, as a former resident of New York, he returned "to

the area quite often to visit family who still reside there" and (3) that he would be

attending a series of upcoming gun shows in New York and [would] be traveling

through, and shopping at, various shopping centers" as well as visiting friends and

family in New York. Id. The Second Circuit ruled that these allegations and

12

sworn statements were "sufficient to support a plausible inference at the pleading

stage that Harty [would] likely return to the Nanuet Mall." Id. at 71-72.

The Second Circuit's decision in Simon is especially significant here

because it distinguished Mr. Harty's case from cases in which the likelihood of a

Title III plaintiff returning to the site of the alleged discrimination was dependent

upon events whose occurrence was speculative and beyond the plaintiffs control,

noting that "[b ]y contrast, Harty avows a present intention to return to the Nanuet

Mall, an act that depends only upon his own volition, and the likelihood of which

finds some support in professional and family reasons." Id. at 72. The Second

Circuit's decision specifically overturned the district court's holding that Harty had

merely posited "a vague and unsupported general intent or desire to visit" the

property again and had failed to allege concrete reasons for a return to the specific

shopping area at issue. See Harty v. Simon Property Group. L.P., 2010 WL

5065982, at *2 (S.D.N.Y. Dec. 7, 2010)).

In Harty v. Bull's Head Realty, No. 3:11-CV-01760 (VLB), 2013 WL

1131625 (D. Ct. 2013), the district court likewise found, based on the Second

Circuit's precedent in Simon, that Mr. Harty had established a plausible intent to

return to the subject property. Characterizing the facts in Simon and Bull's Head

Realty as "remarkably similar," the district court correctly held that Mr. Harty had

13

again established standing by avowing "a present intent to return to the Shopping

Center, dependent ultimately and only upon his own volition." Bull's Head Realty,

2013 WL 1131625, at *4. The district court noted that "Mr. Harty, as he did in his

prior case before the Second Circuit, has affirmed that he teaches courses in

weapons handling and safety, travels nationwide to attend gun shows and to visit

business contacts, and often visits the Nyack, New York area to visit friends and

family (in addition to meeting with business contacts and attending gun shows).

He has also averred an intent to return to the Stamford, Connecticut area in order

to shop at the Center and also as an ADA tester to determine the Center's

compliance with the ADA." Id. The district court also noted that, while Mr. Harty

had not attached a list of upcoming gun shows to his affidavit has he had in the

Simon case, he had "sworn that he intends to visit the Stamford, CT area to attend

a gun show no later than October or November, 2013, and that but for the

Shopping Center's noncompliance with the ADA and the impossibility of

traversing the property, Harty would return to the Center to shop. He also has

sworn that he intended to visit the Stamford, Connecticut area on several different

occasions in the recent past but was thwarted by personal illness and a natural

disaster." ld.

14

The district court correctly ruled the 1,200 mile distance between Mr.

Harty's residence in Florida and the subject property in the case was "not

dispositive of standing." Bull's Head Realty, 2013 WL 1131625, at *4. The

district court noted that the distance between Mr. Harty's residence and subject

property was the same as in the Simon case and that the Second Circuit had

disposed of this issue by crediting Harty's intention to return to the area for

business and personal reasons. Id. The district court also noted that the distance

between Nyack, where Mr. Harty previously lived, and Stamford, Connecticut "is

a mere twenty-eight miles from Nyack, New York, hardly the formidable distance

that Defendants contend." I d. The district court held that "[ a]t the pleading stage,

these allegations and affirmations render Harty's intention to return to the Bull's

Head Shopping Center in the future to be plausibly alleged based on Harty's

professed business and professional ties to the Stamford, Connecticut area and the

Second Circuit's precedent in Harty v. Simon Property Group." Bull's Head

Realty, 2013 WL 1131625, at *4. But cf. Green v. DGG Properties Co., Inc., No.

3:11-CV-01989 (VLB), 2013 WL 395484, at* 11-13, (D. Ct. 2013) (holding that

plaintiff with temporary ambulatory impairment failed to meet his burden of

establishing standing because he could not demonstrate a likelihood that the

discriminatory conduct would continue against him in the future).

15

Here, as in Simon and Bull's Head Realty, Mr. Harty has sufficiently

alleged an intent to return to the subject property based on controlling Second

Circuit precedent. He has made factual averments almost identical to those in the

earlier two cases and the subject property in this case is also located in Stamford,

Connecticut, the same town as the subject property in Bull's Head Realty. Further,

the fact that the property is a hotel further compels a finding that Mr. Harty has

standing to bring his claims. In Access 4 All, Inc. v. 539 Absecon Blvd., No.

05-5624(FLW), 2006 WL 1804578 (D.N.J. 2006), the district court observed:

[T]he first factor, plaintiff's proximity to defendant's place of public accommodation, is less determinative in the context of hotels than in restaurants and other retail establishments. See Wintergreen, 2005 WL 298307 at *3. In Disabled in Action of Metro N.Y. v. Trump Int'l Hotel & Tower, the court held that plaintiffs who lived in New York and had visited defendant's New York restaurant had a definitive intent to return but for defendant's noncompliance with the ADA. 2003 WL 1751785 at *8-9 (S.D.N.Y. 2003). Similarly, in Hubbard v. Rite Aid Corp., the court determined that a plaintiff who lived 20 miles away from the defendant's shopping center and shopped there on previous occasions had standing to pursue an ADA claim. 2006 WL 1359630 at*9 (S.D. Cal. 2006). However, when applying these factors to an ADA claim arising out of a hotel's alleged non-compliance, in Wintergreen, for example, the court found that plaintiff's proximity to defendant's hotel neither injured nor advanced his claim and, this part of the analysis was inapplicable. See 2005 WL 2989307 at *3. In the instant matter, Plaintiff's claim arises out of barriers he encountered at Defendant's hotel; thus, although Plaintiff resides in Florida, the Court finds that his considerable distance from the hotel does not foreclose his claim for lack of standing.

Access 4 All, Inc., 2006 WL 1804578, at *3.

16

In sum, Mr. Harty has met the criteria for standing applied by district courts

in the Second Circuit and the district court's decision to the contrary was in error.

First, as in Access 4 All. Inc. and the cases cited therein, the distance between Mr.

Harty's home in Florida and the Hampton Inn does not foreclose his claim for lack

of standing. See also Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007)

(holding that wheelchair-bound plaintiff had standing to challenge barriers at 7-

Eleven store located 550 miles from his residence). Second, the fact that Mr.

Harty only visited the Hampton Inn once in the past likewise does not foreclose

his claim. In Simon, Bull's Head Realty and Access 4 All. Inc., the plaintiff had

only visited the subject property once, but the reviewing courts credited the

plaintiff's averments that he had concrete plans to return to the subject property

based on his personal and professional interests, and ruled that the plaintiff had

standing. See also Harty v. Harty v. Burlington Coat Factory of Pennsylvania,

LLC, No. 2:11-cv-01923-RK, 2011 WL 2415169 (E.D. Pa. 2011) (holding that

Mr. Harty had standing to bring ADA Title III action against retail clothing store

in which he had shopped on one occasion).

Third, the district court's attempt to draw a distinction between the location

of the subject property in Simon and the subject property in the instant case is an

tortured exercise in hair-splitting that, if upheld, will severely complicate the

17

analysis of any ADA Title III access case and lead to incongruous decisions. Mter

all, the two subject properties in those cases are located on the same highway (I-

287), are both convenient to Mr. Harty's former residence in Nyack and the two

properties are separated only by a driving distance of a little more than a half-hour

and a state line. To hold that Mr. Harty has the right to shop at a nearby mall in

New York, but not to stay at a hotel in a nearby town in Connecticut is both

nonsensical and contrary to Congress' intent in enacting the ADA.

Accordingly, the district court's holding that Mr. Harty does not have

standing to bring his claims was in error and should be overruled.

2. The District Court Applied An Overly Narrow Standard.

The Concrete Plans Test and Proximity Test represent the narrowest

interpretation of standing under the ADA. As such, they are entirely inconsistent

with Congressional intent. In 1990, Congress passed the ADA with the declared

purposes2 of providing "a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities" and providing

2See Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001 (1990) (Where there is ambiguity "[i]n determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy."); see also INS v. Center for Immigrants' Rights, 502 U.S. 183, 189-91 (1991) (the title of a regulation or section is relevant to its interpretation).

18

"clear, strong, consistent, enforceable standards addressing discrimination against

individuals with disabilities." 42 U.S.C. § 12101(b ). Congress recognized the

long history of discrimination against people with disabilities. In this regard,

Congress stated the following: (1) "many people with physical or mental

disabilities have been precluded [from fully participating in society] because of

discrimination,"(2) "historically, society has tended to isolate and segregate

individuals with disabilities," and (3) "discrimination against individuals with

disabilities persists in such critical areas as employment, housing, public

accommodations, education, transportation, communication, recreation,

institutionalization, health services, voting, and access to public services." 42

U.S.C. § 12101(a). Congress found that "individuals with disabilities continually

encounter various forms of discrimination, including ... the discriminatory effects

of architectural, transportation, and communication barriers ... and relegation to

lesser services, programs, activities, benefits, jobs, or other opportunities," and

asserted that "the Nation's proper goals regarding individuals with disabilities are

to assure the equality of opportunity, full participation, independent living, and

economic self-suffic~ency for such individuals." 42 U.S.C.§ 12101(a)(emphasis

added). The Tenth Circuit referenced the above cited Congressional Purpose as

supporting the conclusion that the Congress intended to confer standing to the

19

fullest limits of Article III of the Constitution. Tandy v. City of Wichita, 380 F.3d

1277 (lOth Cir. 2004)3•

In statutes where Congress confers full Article III standing, "prudential

considerations" cannot be considered to deprive plaintiffs of standing. See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); City of Wichita, 380

F.3d at 1287, n. 14. The Supreme Court has ruled that, where Congress so intends

that plaintiff's be afforded the full measure of Article III standing, that prudential

limitations are inapplicable. Gladstone Realtors v. Village of Bellwood, 441 U.S.

91 (1979)(plaintiffs sought injunctive relief and monetary damages). In such

cases, a plaintiff must prove that he suffered injury. 441 U.S. at 103 n. 9.

Likewise in Havens Realty, 455 U.S. at 372, the Supreme Court held that in such

cases the plaintiff must merely prove that he suffered "distinct and palpable

injury".

The Department of Justice reiterates this position and applies it to Title III

of the ADA:

Although a party must generally satisfy prudential standing limitations in addition to the Article III limitations, prudential limitations do not apply when Congress has expanded standing to the full extent permitted by Article III. Warth, 422 U.S. at 501 ("Congress may grant an express

3 Although Tandy involved a Title II ADA case, the language referenced in this context is applicable to both Title II and Title III.

20

right of action to persons who otherwise would be barred by prudential standing rules."); Gladstone, Realtors, 441 U.S. at 100 ("Congress may, by legislation, expand standing to the full extent permitted by Art. Ill, thus permitting litigation by one who otherwise would be barred by prudential standing rules."); Motor Coach Ind., Inc. v. Dole, 725 F.2d 958, 963 (4th Cir. 1984) (citing Gladstone, Realtors, 441 U.S. at 100).

Here, Congress did not explicitly exempt title III claims from prudential limitations but, as this Court has discussed, "Congress intended that, under title III, persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws," such as being free of prudential limitations. See AvalonBay, 2009 WL 1153397, at *7 (internal quotation marks omitted). Because Congress was not explicit when it drafted title III, application of prudential standing limits to such claims has persisted. Recognizing that "several Courts of Appeals have found that prudential standing limitations do not apply to claims under Titles I and II of the ADA," this Court held that claims under title III should also be free of prudential standing limitations in order to effect the broad purpose of the ADA. I d. at *7. For these reasons, prudential standing limitations should not be applied to any title III claimant and ERC need not satisfy them in this matter.

ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157, Statement of

Interest of the United States of America, at 15-16.

Another reason cited by various courts for according the broadest possible

interpretation of standing is the notion that such civil rights plaintiffs seek relief

for other persons similarly situated. See Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91 (1979)(plaintiffs sought injunctive relief and monetary

damages). In such cases, a plaintiff must prove that he suffered injury. In

Gladstone, the Supreme Court held that "as long as the plaintiff suffers actual

21

injury as a result of the defendant's conduct, he is permitted to prove that the rights

of another were infringed." 441 U.S. at 103 n. 9.

In Ingram Park Mall, the Court noted that a significant reason for according

the broadest possible interpretation of standing to Title III ADA litigants is that

they do so as "private attorneys general". Slip op. At 9-11. See also Doran v. 7-

Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008)(holding that because private

enforcement suits are the primary method of obtaining ADA compliance, the

broad view of constitutional standing is warranted). The remedies under Title III

of the ADA are the same as those under Title II of the Civil ~ights Act of 1964, 42

U.S.C. Section 2000, for which there is only injunctive relief.4 Ingram Park Mall,

slip op. at 9-10; Frame v. City of Arlington, 575 F.3d 432, 438 n.5 (5th Cir. 2009).5

In the latter context, the Supreme Court has held that lawsuits by private litigants

4ln enacting the latter statute, Congress evinced its understanding "that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,401 (1968). In Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003), the First Circuit reasoned: "It is fair to assume that Congress had the same understanding when it enacted Title III of the ADA." See generally H.R. Rep 101-485(II), at 126 (1990), reprinted in 1990 U.S.C.C.A.N. 303,409 (noting Congress's explicit intention "to make [section 12188(a)(1)] consistent with title II of the Civil Rights Act of 1964").

5"The remedies and procedures set forth in section 2000a-3(a) of [Title 42 U.S.C.] are the remedies and procedures [Title III] provides to any person who is being subjected to discrimination .... " 42 U.S.C. § 12188.

22

are "private in form only". Guardians Ass'n v. Civil Service Comm'n, 463 U.S.

582 (1983). "When a plaintiff brings an action under that Title, he cannot recover

damages. 6 If he obtains an injunction, he does so not for himself alone but also as

a 'private attorney general', vindicating a policy that Congress considered of the

highest priority." Id., citing Newman v. Piggie Park Enterprises, 390 U.S. 400,

401-02 (1968). It is fair to assume that Congress had the same understanding

when it enacted Title III of the ADA. Ingram Park Mall, slip op at 10, quoting

Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).

Although the ADA authorizes enforcement by the Attorney General, the

latter has limited resources, and thus "private suits by necessity represent the main

tool for ensuring compliance with Congress' intent in passing the ADA. Ingram

Park Mall, slip op. at 10-11, quoting Kelly Johnson, Note, Testers Standing Up

For Title III of the ADA, 59 Case W. Res. L. Rev. 683, 710 (2009)(emphasis

added). Thus, "most ADA suits are brought by a small number of private

plaintiffs who view themselves as champions of the disabled." Ingram Park Mall,

6The Ingram Park Mall Court noted, at p. 12, the availability of other relief, namely damages, as one reason for the Supreme Court's restriction of a plaintiff's entitlement for injunctive relief in City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Later in the same opinion, at p. 25, the court noted that injunctive relief is the only remedy available under Title III of the ADA. In instances where such relief is denied, the statute is stripped of its deterrent effect. Slip op. at 25 n. 7.

23

slip op at 11, quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062

(9th Cir. 2007)(emphasis added);; D'Lil v. Best Western Encina Lodge & Suites,

538 F.3d 1031, 1040 (9th Cir. 2008)(same). The Department of Justice supports

this position. Because the Department "cannot investigate every place of public

accommodation" for ADA compliance, "[p ]rivate plaintiffs play an important role

in enforcing the ADA ... " ERC v. Abercrombie & Fitch Co, D. Md. Case No.

1:09-cv-03157, Statement of Interest of the United States of America, at 1. See

also Hensley v. Eckerhart, 461 U.S. 424, 445(1983) ("All of these civil rights laws

depend heavily upon private enforcement, and fee awards have proved an essential

remedy if private citizens are to have a meaningful opportunity to vindicate the

important Congressional policies which these laws contain."); Alliance For ADA

Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703, slip op. at 3 (11th

Cir. 2000) ("The enforcement of civil rights statutes by plaintiffs as private

attorneys general is an important part of the underlying policy behind the

[ADA]"); Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999);

Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ("Congress

intended Section 1988 to prompt plaintiffs to act as citizen enforcers or private

attorneys general advancing our nation civil rights objectives and vindicating the

liberty of all citizens."). "Civil rights law depends heavily on private

24

enforcement." Parr v. L & L Drive-Inn Property, 96 F. Supp.2d 1065, 1082 (D.

Hawaii 2000).

In dismissing the matter for a lack of standing, the district court relied upon

two Supreme Court cases: City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)

and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). However, reliance on

Lujan and Lyons is misplaced. Clark v. McDonald's Corp., 213 F.R.D. 198, 229

(D.N.J. 2003). In fact, the US District Court for the Western District of Texas

recently addressed this exact issue and declined to follow the aforementioned

cases, finding them distinguishable and inapposite for several reasons. See

Betancourt v. Ingram Park Mall, SA-10-cv-029 (W.D. TX 2010). First, the Lyons

case involved a plaintiff who had been stopped for a traffic violation and was

placed in a choke hold by the police without provocation or resistance on his part.

The Ingram Park Mall court reasoned that the Lyons decision "rested on specific

conclusions". Important language noted by the Texas court from the Lyons

decision is the fact that the past civil rights violation in Lyons was "unaccompanied

by any continuing, present adverse effects[.]" Ingram Park Mall, p. 12, quoting

Lyons, 461 U.S. at 102. The Plaintiff in Lyons had done nothing to establish a real

and imminent threat that he would again be stopped for a traffic violation, then be

illegally choked into unconsciousness without provocation or resistance on his

25

part. The Supreme Court had also indicated the need to strike a balance between

state and federal authority and exercise restraint in enjoining a state's

administration of its own criminallaws.7 Lastly, the Texas Court noted that the

"withholding of injunctive relief did not mean that the federal law would exercise

no deterrent effect in the circumstances because Lyons had a damages remedy for

his injury." Ingram Park Mall, at 12.

The Ingram Park Mall district court further ruled that the Lujan decision was

also distinguishable and inapplicable. In Lujan, which involved the government

regulation, or lack thereof, of an entity other than the plaintiff, the Court had ruled

that the plaintiff could not show that one of its members would be directly affected

by the environmental impact of a government regulation involving an endangered

species in a foreign country. Ingram Park Mall, at 12-13.8

7Likewise, the Texas Court noted the Supreme Court's emphasis that "it is clear that in suits against the Government, at least, the concrete injury requirement must remain." Ingram Park Mall, slip op at 24 n.7, quoting Lujan, 504 U.S. at 578.

8The Supreme Court found it was "beyond the limit" and "into pure speculation" reach a finding of "actual or imminent" injury where "anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection."

26

In applying Lujan and Lyons, some district courts, and the district court

below, have held that a Title III ADA plaintiff must show a "concrete" plan to

return to the subject property (the Concrete Plans Test). As a subset of this Test

such courts, including the district court, sometimes apply the four factor Proximity

Test.

The "concrete plan" test has been widely criticized by both courts and

commentators. As one court recently stated: "not all activities are amendable9 to

such a concrete step, and standing should not be denied to a plaintiff seeking relief

under the ADA merely because he cannot produce evidence of a specific date and

time to return." Norkunas v. Seahorse NB, LLC, Case no. 3:09-cv-934, slip op. At

10 (M.D. Fla. June 6, 2010, DE 28); Square, LLC, 2007 U.S. Dist. LEXIS 99118

("It is not necessary that [the plaintiff] have concrete and specific plans to return in

order to establish a threat of future injury so long as [the plaintiff] has a

nonspeculative intent to do so."); see also Access for America, Inc. v Associated

Out-Door Clubs, Inc., Fed. Appx. 818, 818-20 (11th Cir. 2006) (Barkett, J .,

9The potential list of activities for which it is impossible to credibly possess concrete/set date plans to return is inexhaustive. No one can credibly state that they will visit a movie theater ten months in advance, as they would be unable to predict the movies showing. Nor can anyone accurately predict the next time they will visit a funeral home, fast food restaurant, convenience store, or clothing store.

27

dissenting) ("Especially in the disability context, a "specific-date/set-plans"

standard would produce patently absurd results ... [T]he disabled need not plan

their lives in such minute detail and with such vast forethought in order to invoke

the ADA's protection."). In Ingram Park Mall, at pp. 14-15, the Texas Court

surveyed the criticisms of the Concrete Plans Test in reaching the conclusion that

these tests are too narrow and therefore inapplicable.

As one judge has written: "Especially in the disability context, a "specific­

date/set-plans" standard would produce patently absurd results, and would almost

certainly place plaintiffs in a Catch-22 so far as their credibility is concerned. To

have standing under the ADA, is a wheelchair-bound individual who consistently

but unpredictably frequents a particular Burger King required to predict the very

day on which he will next crave a Whopper?" Access v. America v. Associated

Out-Door, 188 Fed. Appx. 818 at *2 (11th Cir. 2006) (Barkett, J., dissenting). See

also Ingram Park Mall, slip op at 16, (citing references with approval). Judge

Barkett also noted that the Eleventh Circuit had previously held that an allegation

that the plaintiff would return to the public accommodation "soon" was sufficient.

See Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir. 2000).

Requiring a civil rights plaintiff to plan a specific date of return pursuant to

the Concrete Plans test essentially requires him to play a game of "chicken" with

28

conduct violating his civil rights. He must prove a particular date, to the court's

satisfaction, when he plans to revisit his former discrimination, race toward that

date without hesitation, and hope justice is served to completion before that date

arrives. As a practical matter, architectural remedial measures often require

permits and construction. Such projects reasonably take six months to a year.

Defendants routinely ask for more time. Picking such a specific date when Harty

thinks he will be safe to revisit a property is nearly impossible, particularly where,

as here, Greenwich is expending considerable resources to vigorously litigate its

right to remain non-compliant.

3. The ADA Requires The Broadest Interpretation of Standing.

The Concrete Plan Test and Proximity Test represent the narrowest

interpretation of standing under the ADA. As such, they are entirely inconsistent

with Congressional intent. In 1990, Congress passed the ADA with the declared

purposes of providing "a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities" and providing

"clear, strong, consistent, enforceable standards addressing discrimination against

individuals with disabilities." 42 U.S.C. § 12101(b). Congress recognized the long

history of discrimination against people with disabilities. In this regard, Congress

29

stated the following: (1) "many people with physical or mental disabilities have

been precluded [from fully participating in society] because of discrimination,"(2)

"historically, society has tended to isolate and segregate individuals with

disabilities," and (3) "discrimination against individuals with disabilities persists in

such critical areas as employment, housing, public accommodations, education,

transportation, communication, recreation, institutionalization, health services,

voting, and access to public services." 42 U.S.C. § 12101(a) (emphasis added).

"Congress found that 'individuals with disabilities continually encounter various

forms of discrimination, including ... the discriminatory effects of architectural,

transportation, and communication barriers ... and relegation to lesser services,

programs, activities, benefits, jobs, or other opportunities,' and asserted that 'the

Nation's proper goals regarding individuals with disabilities are to assure the

equality of opportunity, full participation, independent living, and economic self­

sufficiency for such individuals."' Ingram Park Mall, 735 F. Supp 2d at 594

(quoting 42 U.S.C. § 12101(a)) (emphasis added). The Tenth Circuit referenced

the above-cited congressional purpose as supporting the conclusion that the

Congress intended to confer standing to the fullest limits of Article III of the

Constitution. Tandy v. City of Wichita, 380 F.3d 1277, 1286-87 (lOth Cir. 2004).

30

In statutes where Congress confers full Article III standing, "prudential

considerations" cannot be considered to deprive plaintiffs of standing. See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); City of Wichita, 380 F.3d at

1287 n.14. The Supreme Court has ruled that, where Congress so intends that

plaintiffs be afforded the full measure of Article III standing, that prudential

limitations are inapplicable. Gladstone Realtors v. Village of Bellwood, 441 U.S.

91 (1979) (plaintiffs sought injunctive relief and monetary damages). In such

cases, a plaintiff must prove that he suffered injury. 441 U.S. at 103 n.9. Likewise

in Havens Realty, 455 U.S. at 372, the Supreme Court held that in such cases the

plaintiff must merely prove that he suffered "distinct and palpable injury". The

Department of Justice reiterates this position and applies it to Title III of the ADA:

Although a party must generally satisfy prudential standing limitations in addition to the Article III limitations, prudential limitations do not apply when Congress has expanded standing to the full extent permitted by Article III. Warth, 422 U.S. at 501 ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules."); Gladstone, Realtors, 441 U.S. at 100 ("Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one who otherwise would be barred by prudential standing rules."); Motor Coach Ind., Inc. v. Dole, 725 F.2d 958, 963 (4th Cir. 1984) (citing Gladstone, Realtors, 441 U.S. at 100). Here, Congress did not explicitly exempt title III claims from prudential limitations but, as this Court has discussed, "Congress intended that, under title III, persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws," such as being free of prudential limitations. See AvalonBay, 2009 WL 1153397,

31

at *7 (internal quotation marks omitted). Because Congress was not explicit when it drafted title III, application of prudential standing limits to such claims has persisted. Recognizing that "several Courts of Appeals have found that prudential standing limitations do not apply to claims under Titles I and II of the ADA," this Court held that claims under title III should also be free of prudential standing limitations in order to effect the broad purpose of the ADA. I d. at *7. For these reasons, prudential standing limitations should not be applied to any title III claimant and ERC need not satisfy them in this matter.

ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157, Statement of

Interest of the United States of America, at 15-16.

Another reason cited by various courts for according the broadest possible

interpretation of standing is the notion that such civil rights plaintiffs seek relief for

other persons similarly situated. See Gladstone Realtors v. Village of Bellwood,

441 U.S. 91 (1979) (plaintiffs sought injunctive relief and monetary damages). In

such cases, a plaintiff must prove that he suffered injury. In Gladstone, the

Supreme Court held that "as long as the plaintiff suffers actual injury as a result of

the defendant's conduct, he is permitted to prove that the rights of another were

infringed." 441 U.S. at 103 n.9.

In Ingram Park Mall, the district court noted that a significant reason for

according the broadest possible interpretation of standing to Title III ADA litigants

is that they do so as "private attorneys general." 735 F. Supp 2d at 595-96. See

also Doran v. 7-Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008) (holding that

32

because private enforcement suits are the primary method of obtaining ADA

compliance, the broad view of constitutional standing is warranted). The remedies

under Title III of the ADA are the same as those under Title II of the Civil Rights

Act of 1964, 42 U.S.C. § 2000, for which there is only injunctive relief.10 Ingram

Park Mall, 735 F. Supp 2d at 595-96; Frame v. City of Arlington, 575 F.3d 432,

438 n.5 (5th Cir. 2009).11 In the latter context, the Supreme Court has held that

lawsuits by private litigants are "private in form only". Guardians Ass'n v. Civil

Service Comm'n, 463 U.S. 582 (1983). "When a plaintiff brings an action under

that Title, he cannot recover damages.12 If he obtains an injunction, he does so not

10In enacting the latter statute, Congress evinced its understanding "that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401 (1968). In Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003), the First Circuit reasoned: "It is fair to assume that Congress had the same understanding when it enacted Title III of the ADA." See generally H.R. Rep 101-485(II), at 126 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 409 (noting Congress's explicit intention "to make [§ 12188(a)(1)] consistent with title II of the Civil Rights Act of 1964").

11"The remedies and procedures set forth in§ 2000a-3(a) of [Title 42 U.S.C.] are the remedies and procedures [Title III] provides to any person who is being subjected to discrimination .... " 42 U .S.C. § 12188.

12The Ingram Park Mall district court noted the availability of other relief, namely damages, as one reason for the Supreme Court's restriction of a plaintiff's entitlement for injunctive relief in City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Ingram Park Mall, 735 F. Supp. 2d at 596-97. Later in the same opinion, the court noted that injunctive relief is the only remedy available under Title III of

33

for himself alone but also as a 'private attorney general', vindicating a policy that

Congress considered of the highest priority." Id., (citing Newman v. Piggie Park

Enterprises, 390 U.S. 400,401-02 (1968)). It is fair to assume that Congress had

the same understanding when it enacted Title III of the ADA. Ingram Park Mall,

735 F. Supp 2d at 596 (quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307

crt Cir. 2003)).

Although the ADA authorizes enforcement by the Attorney General, the

latter has limited resources, and thus "private suits by necessity represent the main

tool for ensuring compliance with Congress' intent in passing the ADA." Ingram

Park Mall, 735 F. Supp 2d at 596 (quoting Kelly Johnson, Note, Testers Standing

Up For Title Ill of the ADA, 59 CASE W. REs. L. REv. 683,710 (2009) (emphasis

added)). Thus, "most ADA suits are brought by a small number of private

plaintiffs who view themselves as champions of the disabled." Ingram Park Mall,

735 F. Supp 2d at 596 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d

1047, 1062 (9th Cir. 2007)) (emphasis added); D'Lil v. Best Western Encina Lodge

& Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (same). The Department of Justice

supports this position. Because the Department "cannot investigate every place of

the ADA. In instances where such relief is denied, the statute is stripped of its deterrent effect. 735 F. Supp. 2d at 604 n.7.

34

public accommodation" for ADA compliance, "[p ]rivate plaintiffs play an

important role in enforcing the ADA ... " ERC v. Abercrombie & Fitch Co, D. Md.

Case No. 1:09-cv-03157, Statement of Interest of the United States of America, at

1. See also Hensley v. Eckerhart, 461 U.S. 424, 445(1983) ("All of these civil

rights laws depend heavily upon private enforcement, and fee awards have proved

an essential remedy if private citizens are to have a meaningful opportunity to

vindicate the important Congressional policies which these laws contain.");

Alliance For ADA Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703,

slip op. at 3 (11th Cir. 2000) ("The enforcement of civil rights statutes by plaintiffs

as private attorneys general is an important part of the underlying policy behind the

[ADA]"); Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999);

Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ("Congress intended

Section 1988 to prompt plaintiffs to act as citizen enforcers or private attorneys

general advancing our nation civil rights objectives and vindicating the liberty of

all citizens."). "Civil rights law depends heavily on private enforcement." Parr v.

L & L Drive-Inn Property, 96 F. Supp. 2d 1065, 1082 (D. Hawaii 2000).

4. Lyons and Lujan Are Distinguishable.

35

Some courts imposing a limited interpretation of standing rely primarily on

two Supreme Court cases: City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)

and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). However, reliance on

Lujan and Lyons is misplaced. See Clark v. McDonald's Corp., 213 F.R.D. 198,

229 (D.N.J. 2003) (finding Lujan inapplicable in context of ADA Title III suit and

holding that "a disabled individual who is currently deterred from patronizing a

public accommodation due to a defendant's failure to comply with the ADA has

suffered 'actual injury."').

In Ingram Park Mall, the U.S. District Court for the Western District of

Texas recently addressed this exact issue and declined to follow the

aforementioned cases, finding them distinguishable and inapposite for several

reasons. 735 F. Supp 2d at 596-605. First, the Lyons case involved a plaintiff who

had been stopped for a traffic violation and was placed in a choke hold by the

police without provocation or resistance on his part. The Ingram Park Mall court

reasoned that the Lyons de~ision "rested on specific conclusions." 735 F. Supp 2d

at 597. Important language noted by the Texas court from the Lyons decision is the

fact that the past civil rights violation in Lyons was "unaccompanied by any

continuing, present adverse effects[.]" Id. (quoting Lyons, 461 U.S. at 102). The

plaintiff in Lyons had done nothing to establish a real and imminent threat that he

36

would again be stopped for a traffic violation, then be illegally choked into

unconsciousness without provocation or resistance on his part. The Supreme Court

had also indicated the need to strike a balance between state and federal authority

and exercise restraint in enjoining a state's administration of its own criminal

laws.13 Lastly, the Texas district court noted that the "withholding of injunctive

relief did not mean that the federal law would exercise no deterrent effect in the

circumstances because Lyons had a damages remedy for his injury." Ingram Park

Mall, 735 F. Supp 2d at 597.

The Ingram Park Mall district court further ruled that the Lujan decision was

also distinguishable and inapplicable. Ingram Park Mall, 735 F. Supp 2d at 598,

604 n. 7 In Lujan, which involved the government regulation, or lack thereof, of an

entity other than the plaintiff, the Supreme Court had ruled that the plaintiff could

not show that one of its members would be directly affected by the environmental

impact of a government regulation involving an endangered species in a foreign

country. Ingram Park Mall, 735 F. Supp 2d at 597 (citing Lujan, 504 U2.S. at 563-

64 ). The Supreme Court found it was "beyond the limit" and "into pure

13Likewise, the Texas district court noted the Supreme Court's emphasis that "it is clear that in suits against the Government, at least, the concrete injury requirement must remain." Ingram Park Mall, 735 F. Supp 2d at 604 n.7 (quoting Lujan, 504 U.S. at 578).

37

speculation" reach a finding of "actual or imminent" injury where "anyone who

observes or works with an endangered species, anywhere in the world, is

appreciably harmed by a single project affecting some portion of that species with

which he has no more specific connection." Ingram Park Mall, at 735 F. Supp 2d

at 597 (quoting Lujan, 504 U.S. at 564). The Ingram Park Mall district court

distinguished Lujan, observing that ADA Title III suits are not suits against the

Government, that the language of the ADA ensures that both parties have an actual

stake in the outcome of the suit and that, "unlike in Lujan, denying standing in Title

III cases does result in the Act's having no deterrent effect, since injunctive relief is

the sole available remedy." Ingram Park Mall, 735 F. Supp 2d at 604 n.7.

In applying Lujan and Lyons, some lower courts have held that a Title III

ADA plaintiff must show a "concrete" plan to return to the subject property (the

Concrete Plan Test). As a subset of this Test such courts, including those cited by

Defendants in their Brief, sometimes apply the Proximity Test.

The "concrete plan" test has been widely criticized by both courts and

commentators. As one court recently stated: "not all activities are amenable to

such a concrete step, 14 and standing should not be denied to a plaintiff seeking

14The potential list of activities for which it is impossible to credibly possess concrete/set date plans to return is inexhaustive. No one can credibly state that

38

relief under the ADA merely because he cannot produce evidence of a specific date

and time to return." Norkunas v. Seahorse NB~ LLC, 720 F.Supp.2d 1313, 1318

(M.D. Fla.2010); see also Access for the Disabled~ Inc. v. Square~ LLC, 2007 U.S.

Dist. LEXIS 99118, --- WL --- (M.D. Fla. Oct. 4, 2007) ("It is not necessary that

[the plaintiff] have concrete and specific plans to return in order to establish a

threat of future injury so long as [the plaintiff] has a nonspeculative intent to do

so."); Access for America~ Inc. v Associated Out-Door Clubs. Inc., Fed. Appx. 818,

818-20 (11th Cir. 2006) (Barkett, J., dissenting) ("Especially in the disability

context, a "specific-date/set-plans" standard would produce patently absurd results

... [T]he disabled need not plan their lives in such minute detail and with such vast

forethought in order to invoke the ADA's protection."). In Ingram Park Mall, the

district court surveyed the criticisms of the Concrete Plan Test in reaching the

conclusion that these tests are too narrow and therefore inapplicable:

In 2000, Ruth Colker15 wrote that "[ c ]ourts that have applied Lyons to ADA Title III cases have applied the [standing] doctrine too

they will visit a movie theater ten months in advance, as they would be unable to predict the movies showing. Nor can anyone accurately predict the next time they will visit a funeral home, fast food restaurant, convenience store, or clothing store.

15ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L.377 (2000).

39

stringently and have arguably misconstrued the nature of these Title III actions." Colker, supra at 397. Distinguishing Lyons, Colker noted that ADA Title III "cases do not involve extreme situations in which only a plaintiff's criminal conduct could cause future discrimination to occur," but instead "these are cases in which plaintiffs represent a class of litigants16 who repeatedly face instances of discrimination as a result of their own voluntary and lawful conduct." Id.

In 2002, Elizabeth Keadle Markey noted that "[ m ]any courts have relied on tenuous analogies to, and narrow interpretations of, judicially­created standing doctrine in deciding whether a plaintiff has standing under the ADA" and advocated "greater vigilance on the part of the courts to ensure that persons who suffer disability discrimination do have standing to bring their claims." Elizabeth Keadle Markey, The ADA's Last Stand?: Standing and the Americans With Disabilities Act, 71 FORDHAM L. REV. 185, 186 (October 2002).

In 2004, Professor Adam Milani surveyed the case law, noting that "[t]he generating force for ADA compliance of private suits will be blunted ... if courts persist in holding that plaintiffs do not have standing to remedy violations such as inaccessible buildings or the refusal to change policies regarding the provisions of services or auxiliary aids to people with disabilities." He recognized that "[b ]y their very nature, such violations are ongoing and not isolated occurrences." Adam A. Milani, Wheelchair Users Who Lack "Standing": Another Procedural Threshold Blocking Enforcement of Titles II and III of the ADA, 39 WAKE FOREST L. REv. 69, 113 (Spring 2004). Professor Milani argued that allowing standing in most Title II and III cases is actually consistent with the

16In this regard, the Ingram Park Mall district court made several references to authorities reasoning that standing interpretations are broadened where the injunctive relief sought benefits more than just the named plaintiff. 735 F. Supp 2d at 598-600. The court also cited with approval the Fifth Circuit opinion in Johnson v. Gambrinus Company, 116 F.3d 1052 (5th Cir 1997). Ingram Park Mall, 735 F. Supp. 2d at 600-01. There, the Fifth Circuit allowed standing for injunctive relief for a plaintiff who had suffered discrimination when touring a brewery. This is an activity which a given plaintiff typically does not repeat. The Fifth Circuit recognized that the relief sought affected more than just the single plaintiff.

40

holdings in Lyons and Lujan. He notes that "the 'odds' of the injury recurring are certain where a building is not in compliance with the ADA," and that the plaintiff and "every other person with the same disability" will confront the same barrier on every future visit. ld. He further argued that disabled plaintiffs need not establish imminent future injuries because "they have an actual and present injury - they are current! y deterred from visiting a building." I d. at 117-18.

Ingram Park Mall, 735 F. Supp 2d at 598.

One federal district court judge has written: "Especially in the disability

context, a "specific-date/set-plans" standard would produce patently absurd results,

and would almost certainly place plaintiffs in a Catch-22 so far as their credibility

is concerned. To have standing under the ADA, is a wheelchair-bound individual

who consistently but unpredictably frequents a particular Burger King required to

predict the very day on which he will next crave a Whopper?" Access v. America

v. Associated Out-Door, 188 Fed. Appx. 818 at *2 (11th Cir. 2006) (Barkett, J.,

dissenting). See also Ingram Park Mall, 735 F. Supp. 2d at 599 (citing and quoting

with approval). Judge Barkett also noted that the Eleventh Circuit had previously

held that an allegation that the plaintiff would return to the public accommodation

"soon" was sufficient. See Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir.

2000).

Requiring a civil rights plaintiff to plan a specific date of return pursuant to

the Concrete Plan test essentially requires him to play a game of chicken with

41

conduct violating his civil rights. He must prove a particular date, to the court's

satisfaction, when he plans to revisit his former discrimination, race toward that

date without hesitation, and hope justice is served to completion before that date

arrives. As a practical matter, architectural remedial measures often require

permits and construction. Such projects reasonably take six months to a year.

Defendants routinely ask for more time. Picking such a specific date when Mr.

Harty thinks he will be safe to revisit a property is nearly impossible, particularly

where, as here, the defendant is expending considerable resources to vigorously

litigate its right to remain non-compliant.

5. The ADA Expands Actual Injury To Loss Of Equality Of Opportunity.

"[T]he irreducible constitutional minimum of standing contains three

elements." Lujan v. Defenders of Wildlife, 504 U.S. 555,560 (1992). These

elements are "(1) an 'injury in fact' that is (a) concrete and particularized and (b)

actual or imminent; (2) a causal connection between the injury and the conduct

complained of; and (3) the likelihood that a favorable decision will redress the

injury." Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing

Lujan, 504 U.S. at 560-61). Particularized means "that the injury must affect the

plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n.l. "The party

42

invoking federal jurisdiction bears the burden of establishing these elements."

Lujan, 504 U.S. at 561. Since they are not mere pleading requirements but rather

an indispensable part of Mr. Harty's case, each element must be supported in the

same way as any other matter on which the plaintiff bears the burden of proof, i.e.,

with the manner and degree of evidence required at the successive stages of the

litigation. See id. At the pleading stage, general factual allegations of injury

resulting from Defendants' conduct may suffice, for on a motion to dismiss we

"presum[ e] that general allegations embrace those specific facts that are necessary

to support the claim." Lujan, 504 U.S. at 561; Public Citizen, Inc. v. Bomer, 274

F.3d 212, 218 (5th Cir. 2001).

The fundamental issue addressed in Title III ADA standing analyses is

whether there is a "case or controversy" and, more specifically, "redress ability." In

other words, will the plaintiff benefit from the injunctive relief sought? In this

regard, the issue is whether injury is "actual or imminent." Lujan, 504 U.S. at 560.

Therefore, Courts must decide whether an actual injury is ongoing and continuous

or, in the alternative, is imminent and will likely happen again.

This issue was recently addressed in Ingram Park Mall, where the district

court held that the injury described by the statute is not limited strictly to the

disabled person's actual encounter with specific ADA barriers. 735 F. Supp. 2d at

43

601-02. It is, in fact, far broader. The Ingram Park Mall court succinctly described

the views of other courts which applied more limited views of standing:

In the case of architectural barriers, courts finding a lack of standing unless the plaintiff alleges or proves a concrete plan to return to an establishment to suffer discrimination view the Title III injury as being limited to the plaintiff's actual interactions with the discriminatory barriers at the establishment. While this is undoubtedly an injury under Title III, it is not the only type of injury, and therefore not the only type of discrimination, prohibited by Title III. Rather, the ADA expressly contemplates loss of opportunity as an actionable injury.

735 F. Supp. 2d at 602 (emphasis added).

Indeed, the ADA is replete with Congress' stated intent to define injury as

being more than simple encounter with discriminatory barriers, but also to include

"equality of opportunity." Ingram Park Mall, 735 F. Supp. 2d at 602. The ADA

additionally proscribes denial of the "opportunity" to the disabled individual to

participate or benefit from a good, service, privilege, advantage or accommodation

that is not equal to that afforded to other individuals. 42 U.S.C.

§ 12182(b )(1 )(A)(I). The ADA likewise additionally proscribes the affording of

the "opportunity" to disabled individuals to participate in or benefit from a good,

service, facility, etc. that is not equal to that afforded other individuals. 42 U.S.C.

§ 12182(b )(1)(A)(ii).

44

Several other references in the ADA demonstrate Congress' intent not just to

equalize actual "participation" for disabled persons, but also the "opportunity" to

participate. In the Findings and purpose, Congress explained:

the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self-sufficiency for such individuals;

42 U.S.C. § 12101(a)(8) (emphasis added).

A disabled plaintiff who establishes discriminatory violations which

continue, has met his burden of showing that he is deprived the "opportunity" to

participate or benefit in the goods and services, etc, which is expressly listed as a

violation under 42 U.S.C. § 12182(b)(l)(A)(I) and (ii). Under 42 U.S.C. §

12182(b )(l)(A)(I) and (ii), the plaintiff's civil rights are presently and continuously

being violated because he is deprived the opportunity of visiting the premises free

of discrimination. The enforcement provision of the ADA supports this analysis.

In relevant part, the section provides: "Nothing in this section shall require a

person with a disability to engage in a futile gesture if such person has actual notice

that a person or organization covered by this subchapter does not intend to comply

with its provisions." 42 U.S.C. § 12188(a)(l) (emphasis added).

This language obviates the requirement that a court determine whether a

disabled plaintiff will again be injured in the future. Rather, because the plaintiff is

45

deprived of equal opportunity, the injury is ongoing and continuous as long as the

discriminatory barriers remain in place. As the Ingram Park Mall district court

observed:

Thus, the disabled plaintiff suffers an ongoing injury so long as she is effectively denied the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the entity. That Congress meant to restore disabled plaintiffs' choice and opportunity to visit an establishment on equal footing with the able bodied is further evident in the title of Chapter 126-"Equal Opportunity for Individuals with Disabilities."

Ingram Park Mall, 735 F. Supp 2d at 602. The Ingram Park Mall court reasoned

that the recognition of denial of opportunity as a continuous injury was "not only

consistent with the plain language of the ADA, it is consistent with Supreme Court

precedent. 735 F. Supp 2d at 602-04.

This analysis completely obviates the need for a district court to parse out

future events and ascertain whether they are speculative, non-speculative, concrete,

and/or particularized. It eliminates the problem of measuring how far a disabled

person lives from the property, how many times he has traveled through the area,

whether or not he has family there, etc. In this regard, the analysis shifts a Court's

focus from whether future injury is imminent. Rather, by recognizing that such a

person who encounters such discrimination and is aware that the discriminatory

barriers continue, is deprived the "equality of opportunity", then such injury is

46

present, ongoing and continuous. Therefore, the case or controversy requirements

are met and the plaintiff will benefit from the injunctive relief he seeks. Such

injunctive relief will restore his equality of opportunity. Moreover, this approach

reconciles with the meaning of the Act. Defendants, at any given property, will

owe an equal duty to all 43 million disabled Americans, rather than a select few

that meet narrow criteria. Likewise, all 43 million disabled Americans will enjoy

equal civil rights protection wherever they travel in the United States and will no

longer be blacked out to the vast majority of locations.

6. Plaintiff Should Not Have to Engage in a Futile Gesture.

Numerous Courts have recognized the effect of the "futile gesture" provision

of the Statute. Some have reasoned that the "futile gesture" provision addresses

and satisfies the "imminent threat of future injury" half of the case or controversy

requirement. Others have held that this provision satisfies the actual, present and

ongoing injury alternative to the case or controversy requirement. For example, in

Pickern v. Holiday Quality Foods, 293 F.3d 1133, 1138 (9th Cir. 2002), the Ninth

Circuit held that a plaintiff's injury "continues" "so long as the discriminatory

conditions continue, and so long as a plaintiff is aware of them and remains

47

deterred .... " In Clark v. McDonalds Corp., 213 F.R.D. 198 (D.N.J. 2003), the

District Court of New Jersey summarized as follows:

If the "futile gesture" language of Title III is to mean anything, it means that those in [plaintiff's] position may sue to bring into compliance with the ADA places that they know are non-compliant, without having to allege an intention to return to such places before their lawsuits can have the effect of forcing compliance

To the extent [plaintiff] is actually "discouraged from patronizing" the restaurants he has visited on account of his "aware[ ness] of the discriminatory barriers [he] will encounter there," such discouragement constitutes an actual and existing injury from which any perceived absence of imminent future harm cannot detract.. ... [T]oday's deterrence from visiting a place of public accommodation known to be out-of­compliance with the ADA can constitute an actual and present injury as surely as tomorrow's visit to the same location can constitute a threatened and imminent one. The showing of imminence required by [Lujan] is simply unnecessary to the extent [plaintiff] seeks injunctive relief to remedy today's "actual harm," [citing Lujan], or "continuing, present adverse effects" from his past exposure to Defendant's allegedly illegal conduct [citation omitted].

213 F.R.D. at 229 (emphasis added.)

Other courts have relied on other language of the statute to eliminate the

'concrete/set plans" tests under the analysis whether injury is imminent. In Doran

v. 7-Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008), the Ninth Circuit recognized

that a plaintiff's injury is actual or imminent where discriminatory barriers deter

him from returning. See also Molski v. Army's Huntington Beach, 359 F. Supp. 2d

938, 947 (C.D. Cal. 2005) (holding that a plaintiff suffered actual and imminent

48

injury when he alleged that he was currently deterred from returning to the

accommodation because of ADA). See also Crazier v. Gamma Management

Group, Inc., No. 04-6031, 2005 WL 2644996, at *3 (E.D. Pa. 2005) (finding that

plaintiff had standing where he would return to property, but for its continuing

violations); Access 4 All, Inc. v. O.M. Management, LLC, No. 06-CV-0374, 2007

WL 1455991, at *8 (S.D. Ohio May 15, 2007) (plaintiff had standing where he

would return to property, but for its continuing violations); Clark v. Burger King,

255 F. Supp. 2d 334, 342 (D.N.J. 2003) (plaintiff's desire to patronize defendant's

facility free from discrimination is a cognizable interest for purposes of standing).

In other cases, courts have premised their decisions on 42 U.S.C. §

12188(a)(1), which provides that a plaintiff is not required to engage in the futile

gesture of returning to a non-compliant property. See Steger v. Franco, 228 F.3d

889, 892 (8th Cir. 2000) (plaintiff need not allege specific and concrete plan to

return to building before it is ADA compliant because such would be a "futile

gesture"); Disabled Americans for Equal Access, Inc. v. Ferries Del Carribe, 405

F.3d 60, 65 n.7 (1st Cir. 2005) (plaintiff did not have to engage in the futile gesture

of actually traveling aboard the non-compliant vessel again to establish standing);

Access 4 All, Inc. v. O.M. Management, LLC, 2007 WL 1455991, at *6 (plaintiff

need not engage in futile gesture of visiting non-compliant building); Access 4 All,

49

Inc. v. G & T Consulting Company, LLC, WL 851918, at *4 (S.D.N.Y. Mar.28,

2008) (same); Small v. General Nutrition Cos. 388 F. Supp. 2d 83, 87 (S.D.N.Y.

2005) (same).

The First Circuit has explained, "the existence of a private right of action ...

does not depend upon how many attempts a plaintiff has made to overcome a

discriminatory barrier, but, rather, upon whether the barrier remains in place."

Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) (emphasis

added). The Fist Circuit held that, by virtue of the futile gesture provision,

Congress did not intend to overburden ADA litigants by having to demonstrate

ongoing injury when she is already aware of ADA violations and is deterred. 333

F.3d at 307. "Limiting Title III relief to instances in which a future violation

appears certain to occur would create a standard far more demanding than that

contemplated by the congressional objectives that influenced the ADA." ld.

Mr. Harty is currently being deprived the opportunity to visit the Hampton

Inn's Head Plaza property free of discrimination- an actual and continuous injury

expressly recognized by 42 U.S.C. § 12101(a)(2) and 42 U.S.C. § 12101(a)(7); and

expressly prohibited by 42 U.S.C. § 12182(b)(l)(A)(I), and. 42 U.S.C. §

12182(b )(l)(A)(ii). He is deterred by the Hampton Inn's substantial violations- as

were the plaintiffs in such court opinions as Doran, Pickem, Army's Huntington

50

Beach, Gamma Management Group. Inc .. O.M. Management. LLC, and Clark.

Mr. Harty is not required to engage in the futile gesture of visiting the Hampton

Inn's property while its violations are allowed to continue. See 42 U.S.C. §

12188(a)(l).

The courts that adhere to the Concrete Plan and Proximity Tests completely

overlook the "futile gesture" language of the statute. On the other hand, courts

which recognize the futile gesture language decline to apply the Concrete Plan and

Proximity Tests. In these latter cases, some courts hold that the deterrence a

plaintiff experiences is an ongoing and continuous actual injury. Other courts hold

that such deterrence constitutes imminent future injury. Indeed, some courts hold

that the futile gesture language and deterrence constitute both ongoing and

imminent injury. See Ingram Park Mall, 735 F. Supp 2d at 601-05.

In Ingram Park Mall, the Texas court went further by recognizing that an

additional injury is the lack of equality of opportunity. "[A]ny disabled plaintiff

who alleges that she is being denied the opportunity to visit or is currently being

deterred from visiting a public accommodation that is violating Title III alleges

sufficient present injury in fact for prospective equitable relief." 735 F. Supp 2d at

604.

51

Mr. Harty has thus established the legally cognizable harm he continues to

suffer as long as Defendants' property remains non-compliant and discriminates

against him. Indeed, wherever Mr. Harty is or resides, he is made keenly aware

that Defendants accord him"inferior status" (recognized as discrimination under 42

U.S.C. § 12101(a)(6)); he senses the "futility" of attempting to return (recognized

under§ 12188); he feels the lack of "equality of opportunity" and Defendants'

discriminatory practices contribute to his sense of isolation. In this regard, all 43

million disabled Americans are treated equally once they encounter such

discrimination. His injuries, and the knowledge that he is not welcome, are

substantial, ongoing and continuous. As the Ingram Park Mall district court held,

"following the reasoning of these precedents, in an ADA Title III case, the risk of

injury in fact is not speculative so long as the alleged discriminatory barriers

remain in place, the plaintiff remains disabled, and the plaintiff is 'able and ready'

to visit the facility once it is made compliant." 735 F. Supp 2d at 604. Under the

court's reasoning, this constitutes a sufficient present injury.

7. Plaintiff Has Standing As A Tester

Mr. Harty is a civil rights advocate for the disabled and monitors

compliance of places of public accommodations with the ADA. This dual

52

motivation has been considered by various courts and held to serve to establish a

plaintiff as a bona fide patron. See Molski v. Price, 224 F.R.D. 479, 483 (C.D. Cal.

2004) (holding that intent is relevant, motivation irrelevant, and intent to return to

monitor ADA compliance is satisfactory); Disability Advocates and Counseling

Group, Inc., v. 4SK, Inc., 2005 U.S. Dist. Lexis 44389, at *17 (M.D. Fla. 2005)

(recognizing standing of tester); Bruni v. Fine Furniture By Gordon's Inc., 2007

U.S. Dist. Lexis 120, at *2, (M.D. Fla. 2007) (recognizing standing of testers);

Access For The Disabled v. Tr. Herbert Chas Pohlman, 2:06-cv-00178 slip op. at 2

(M.D. Fla. 2007) (recognizing standing of testers).

Ample precedent supports standing for Title III ADA plaintiffs who act as

"testers." In Harty v. Simon Property Group, LLC, 428 Fed. Appx. 69 (2d Cir.

2011), the Second Circuit mentioned tester standing as one reason for granting Mr.

Harty standing. Tester standing has also been recognized in a number of other civil

rights cases where the plaintiff purposefully sought out the discriminatory practice

for the sole purpose of establishing standing and filing a lawsuit. In Tandy v. City

of Wichita, 380 F.3d 1277 (lOth Cir. 2004), the Tenth Circuit recognized standing

under Title II of the ADA to testers who did not reside in the Wichita area, but rode

the bus system for the purposes of challenging its non-compliance. In Havens

53

Realty Corp. v. Coleman, 455 U.S. 363, 374-75 (1982), the Supreme Court held

that the Fair Housing Act ("FHA") contemplated "'tester' standing" for a litigant

who never intended to rent the subject apartment, but whose sole purpose was to

encounter defendant's unlawful practices. The Court recognized that the injury

underlying tester standing stems from the denial of the tester's statutory rights. ld.

at 374-75. The Court reasoned that the FHA's broad statutory language, evinced a

congressional intent to confer standing "to the full limits of Article III," which

includes tester standing. ld. at 372-74. The Court particularly noted that Congress

had omitted any requirement that the plaintiff affected by the defendant's illegal

conduct be "bona fide." ld. at 374. Therefore, even individuals who purposefully

engaged the defendant for the purpose of encountering discrimination and

instituting a lawsuit had standing.

Likewise in Evers v. Dwyer, 358 U.S. 202 (1958), the Supreme Court

granted injunctive relief and recognized tester standing to a black plaintiff who

boarded a bus for the purpose of encountering discrimination and filing a lawsuit

thereafter. See also Pierson v. Ray, 386 U.S. 547,558 (1967). Various circuit

courts have followed the Supreme Court's reasoning in Havens Realty to hold that

tester standing exists under other anti-discrimination statutory provisions. See,

54

~.,Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1103-04 (9th Cir. 2004)

(relying on Havens Realty to conclude that disabled testers who sue under§

3604(f)(2) of the FHA and who have experienced the "dignitary harm" of

observing discriminatory conditions have standing); Kyles v. J .K. Guardian Sec.

Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (relying on Havens Realty to

conclude that employment discrimination testers who were discriminated against

had standing to sue under Title VII of the Civil Rights Act of 1964); Watts v. Boyd

Props., Inc., 758 F.2d 1482, 1485 (11th Cir. 1985) (relying on Havens Realty to

conclude that fair housing testers had standing to sue under 42 U.S.C. § 1982);

Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) (testers

have standing under FHA). Each of these circuits relied upon the statutory

provision's broad language and anti-discriminatory purpose in concluding that

testers had standing to sue. See Smith, 358 F.3d at 1103-04; Kyles, 222 F.3d at

297-99; Watts, 758 F.2d 1482, 1484-85.

In Ingram Park Mall, the district court held that testers have standing in Title

III ADA cases based on the above precedent. 735 F. Supp 2d at 604-05. Put

another way, it does not matter what motive the disabled person had when he

visited the defendant's respective property. "Where there has been non-

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compliance, the actor whose litigation brings about compliance has protected

important civil rights of minorities, no matter that the actor's motives may have

been far less than altruistic. The grounds upon which a litigation are based are

rarely identical to the motive of the litigator." Maloney v. City of Marietta, 822

F.2d 1023, 1026 n. 5 (11th Cir. 1987); see also Access 4 All, Inc. v. Absecon

Hospitality Corp., No. 1:04-cv-6060, 2006 WL 3109966, at *7 (D.N.J. 2006)

(plaintiff's motive for visiting property is irrelevant); Norkunas v. Seahorse NB,

LLC, 720 F.Supp.2d 1313, 1315-16 (M.D. Fla.2010) (plaintiff's capacity as a

tester, in and of itself, does not warrant dismissal for lack of subject matter

jurisdiction); Bruni v. Fine Furniture By Gordo's Inc., 2007 U.S. Dist. Lexis 120

(M.D. Fla. 2007) (recognizing tester standing); Bruni v. FMCO, LLC, 2007 U.S.

Dist. Lexis 18641 *11 (M.D. Fla. 2007) (recognizing tester standing).

VIII. CONCLUSION

Mr. Harty has standing to maintain his ADA Title III claims in this case. He

has sufficiently alleged specific architectural barriers existing at the Defendant's

premises that violate the ADA, has explained in detail how these architectural

barriers have prevented him from accessing and enjoying the use of the subject

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property, has demonstrated that he is deterred from visiting the property and has

shown a loss of equal opportunity based upon his disability. Mr. Harty has

therefore alleged actual and specific injuries resulting from Defendant's myriad

violations of Title III of the ADA.

Mr. Harty has also alleged or establish sufficient connection with Stamford,

Connecticut because, barring illness, he travels at least annually to the area to

attend gun shows, shop and dine. Mr. Harty has also alleged that he formerly lived

in nearby Nyack, New York and still has family in that area. Mr. Harty has

therefore demonstrated a specific and concrete plan to return to the subject property

in the future. Finally, Mr. Harty has established that he has standing as a tester.

Accordingly, Mr. Harty should be found to have standing.

For all of the above reasons, the district court's decision should be overruled.

Respectfully Submitted,

THOMAS B. BACON, P.A.

By: s/John F. Ward John F. Ward, Esquire 200 Country Club Rd. Royersford, P A 19468 Phone: 610-952-0219

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Fax: 954-237-1990 johnfward@comcast.net

Admitted Pro Hac Vice

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