Courts in Florida, at least, do not appear to be impressed by the Ninth Circuit’s decision in Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017).* In Seiger v. M&M Fin. Inv’rs Intl., Inc., 2017 WL 3971451, at *1 (M.D. Fla. Sept. 8, 2017) a District Judge in Florida reviewed the case law in his jurisdiction and concluded that a plaintiff who never personally saw or encountered a barrier to access could not have standing because he had not suffered any injury. Mere knowledge of the barrier to access was not enough.
There is a distinction between the two cases. CREEC involved accessibility at hotels, and by its nature an individual hotel is not the kind of public accommodation a disabled individual is likely to visit frequently and is the kind of public accommodation that is likely to be far from the plaintiff’s home. Seiger involved a shopping center, the kind of public accommodation a legitimate plaintiff is likely to visit often. A plaintiff who has never visited a particular strip mall probably won’t, at the end of the day, be able to persuade a court there is a sufficient likelihood of return to justify standing for injunctive relief. A plaintiff who complains about a hotel in a distant city has a much more plausible claim that he or she never visited because she was deterred from doing so.
That, however, is a distinction not reached until trial, and one that does not apply to testers at all because they cannot plausibly claim they ever intended to patronize the businesses they chose to call. Visiting twice isn’t what testers do – if they did they wouldn’t be testers but patrons. We clearly need a more rigorous intellectual approach to ADA standing. For now though, Florida is a much safer place to do business than California, at least in terms of ADA risk.
For another perspective on this case check out William Goren’s excellent blog “Understanding the ADA.“