In an Action Arising Out of Americans With Disabilities Act Violation, What Constitutes Standing, and Is Notice Required?

In Brito v. JP Antlers, LLC, No. 17-cv-01956-CMA-NYW, (D. Colo. 2018) the United States District Court D, Colorado, answered those questions.

Plaintiff Carlos G. Brito (“Brito”) is paraplegic and requires the use of a wheelchair.  Defendants JP Antlers, LLC and Wyndham Hotels and Resorts, LLC (“Defendants,” collectively) own and operate a hotel, located at 4 S. Cascade Avenue, Colorado Springs, Colorado 80203 (“Premises”). On August 14, 2017, Brito sued for injunctive relief under Title III of the Americans with Disabilities Act (“ADA”), after encountering “multiple violations of the ADA that directly affected his ability to use and enjoy the Premises. Brito lives near the Premises, has frequented the area and intends to return. Defendants moved to dismiss, alleging Brito did not exhaust his administrative remedies and lacks standing.

Defendants argue the Court lacks subject-matter jurisdiction because Brito failed to exhaust his administrative remedies under 42 U.S.C. § 12188, which, Defendants claim requires notice of the alleged violations to the Colorado Civil Rights Coalition (“CCRC”) thirty days before filing his Complaint. Plaintiff’s failure to give notice is uncontested. Title III of the ADA provides that the remedies and procedures set forth provides relief to any person who is being subjected to discrimination on the basis of disability. There is no explicit mention of notice. Defendants contend that notice is required. The courts are divided on this issue. The Tenth Circuit chooses to follow other courts’ reasoning that, because no express terms incorporate administrative procedures, those remedies are not required under Title III. Therefore, this Court agrees with the line of cases concluding that Title III does not require administrative exhaustion and denies Defendants’ request to dismiss Brito’s claim for lack of administrative exhaustion.

Defendants also claim Brito lacks standing. To establish Article III standing, a plaintiff must show that he has suffered an injury in fact, the injury is fairly traceable to the challenged action of the defendant and it is likely that the injury will be redressed by the relief requested. Defendants claim Brito cannot satisfy the first element of standing—injury in fact. To establish the “injury in fact” element, a plaintiff seeking prospective relief is required to show an injury that is concrete and particularized and actual or imminent. Brito must show that he is likely to return to Defendants’ premises. Courts consider the following factors in determining whether an ADA plaintiff’s likelihood of returning to a defendant’s business is sufficient to confer standing: (1) the proximity of the business to plaintiff’s residence, (2) the plaintiff’s past patronage of the business, (3) the definitiveness of plaintiff’s plans to return, and (4) the plaintiff’s frequency of travel near defendant.

All four factors weigh in Brito’s favor. He lives in the same county as the Premises. Brito claims he has frequented the Premises for pleasure purposes. With respect to the third element—his plans to return—Plaintiff alleges an intention to return to the property to within four months’ time. Finally, the last factor weighs slightly in Brito’s favor; he states that he has frequented the area. The standing requirement is designed to guarantee that plaintiffs have a sufficient personal stake in the outcome of a dispute to render judicial resolution of the dispute appropriate. Based on the above factors, the Court concludes that, at this early stage in the proceedings, Brito has presented a sufficient personal stake in the outcome of this case to make judicial dismissal of his complaint inappropriate. Therefore, the Court denies Defendants’ motion to dismiss.