By Minh. N. Vu

If you thought that Title III of the ADA was intended to protect people with disabilities who might want to do business with you – as opposed to those people who visit your business for the sole purpose of filing a lawsuit –– think again.  The U.S. Court of Appeals for the Eleventh Circuit last week issued a decision in Houston v. Marod Supermarkets holding that people with disabilities who have no interest in your goods and services can still sue you for architectural barriers in your facilities if they can demonstrate that they will encounter these barriers in the future.  Federal trial courts in Alabama, Georgia, and Florida (a very popular venue for serial plaintiffs) must follow this holding in ruling on future cases.

People who visit your businesses for the sole purpose of determining if your business complies with legal requirements — and then suing if it is not — are called testers.   Because no federal appellate court had decided the question of whether testers have standing to bring lawsuits under Title III of the ADA until now, serial ADA Title III plaintiffs have usually claimed that they that have a dual purpose in visiting a business:  Reviewing its accessibility and accessing its goods and services.  This decision allows serial plaintiffs filing ADA Title III lawsuits in Florida, Alabama, and Georgia to abandon the charade that they actually have an interest the goods and services offered by the business.

There is a small silver lining for businesses:  The Eleventh Circuit reiterated that ADA Title III plaintiffs must still allege facts showing that they are under a threat of imminent harm because they will encounter the barriers in the future.  In this case, the plaintiff submitted an affidavit that he lived 30.5 miles from the supermarket in question and that he had been there twice before filing suit.  He explained that although this supermarket is not the closest to his house, he passes the supermarket on his reoccurring trips to the offices of his lawyers who file his access lawsuits.  The plaintiff also stated that he would return to the supermarket if the barriers were removed.  The Eleventh Circuit concluded that the plaintiff had produced sufficient facts to establish his standing to sue under Title III of the ADA.

Dissenting District Judge Bowen was not persuaded, noting that this “serial litigator” had filed over 271 lawsuits in Florida and mistakenly referred to the supermarket as a “hotel” in his affidavit.  Judge Bowen said the “court should see this case as the district court saw it — a disingenuous medium for self-promotion and the multiplication of attorney’s fees.”