Businesses are obliged to ensure that their facilities comply with the Americans With Disabilities Act. But can anyone who believes he has found a violation somewhere sue to remedy it? The U.S. District Court for the District of Maryland recently considered what types of plaintiffs may initiate such litigation, and excluded out-of-state persons that merely “test” faraway properties for ADA compliance.
The plaintiff in Nanni v. Aberdeen Marketplace, Case 1:15-cv-02570-WMN (D. Md. May 4, 2016), was a Delaware resident with a disability who said that he traveled along Interstate 95 into Maryland to visit with family and friends and attend various events. He alleged that he had stopped at Aberdeen Marketplace up to four times to rest and take a bathroom break. During those visits, he contended, he encountered various barriers to accessing the stores and services, defects that he believed ran afoul of the ADA. Asserting an intention to patronize to the shopping center up to three times a year and also test the facility’s compliance with the ADA, Plaintiff sought declaratory and injunctive relief. Represented by Silverman|Thompson|Slutkin|White, Aberdeen Marketplace moved to dismiss the lawsuit.
First, a little background on “standing”: To be able to bring a lawsuit, a plaintiff has to demonstrate that he suffered an injury in fact – that is, an actual or imminent invasion of a legally protected interest that can be remedied by a judicial decision. When a plaintiff requests injunctive relief, he also has to show a “real and immediate threat” of being wronged in the future, a likelihood that is greater than a “mere possibility.” Applied in the context of Plaintiff’s lawsuit, he had to describe “specific concrete plans” to return to Aberdeen Marketplace and how he would be similarly injured during those future visits.
In weighing whether Plaintiff had met these standing requirements, the Court noted that he contended that the barriers to access still existed but had not described how he would be injured on future visits (at least, not to a degree greater than a “mere possibility” of injury). The problem was compounded by Plaintiff’s failure to specify which business within the shopping center he intended to patronize. The Court expressed skepticism that there was actually a business at Aberdeen Marketplace that was suitable for Plaintiff’s resting needs, particularly given the abundance of other rest areas along I-95 — many of which Plaintiff had also sued in the previous year (totaling a dozen lawsuits in the District of Maryland alone) on the basis that he stopped at them to rest.
Without any such allegations of the Plaintiff’s activities at the shopping center, the Court was left only with his intention to return to assess compliance with the ADA. But that, the Court noted, is insufficient by itself to confer standing. In sum, the Court had to “speculate as to the type of harm Plaintiff is likely to face on his return to the shopping center” — at least, beyond simply amassing attorneys’ fees that could be recouped in a successful lawsuit.
The Court was persuaded that the ADA was not intended to create “broad rights against individual local businesses by private parties who are not bona fide patrons, and are not likely to be bona fide patrons in the future.” As Plaintiff had not alleged that he was a bona fide patron or plausibly explained why he was likely to be a bona fide patron, he had not demonstrated an injury in fact that would create a justiciable controversy. The Court therefore dismissed the case.
Silverman|Thompson|Slutkin|White attorneys Bill Sinclair and Chris Mincher represented the Defendant in this matter. They have a great deal of experience with such matters. To discuss the Nanni case, or any other case dealing with ADA issues, please call (410) 385-2225 or email them at firstname.lastname@example.org or email@example.com.