PETITIONER DR. MCNAMARA S RESPONSE

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PATRICK MCNAMARA, M.D., Petitioner, v. CASE NO.: WALT DISNEY WORLD, CO., Respondent. PETITIONER DR. MCNAMARA S RESPONSE TO RESPONDENT DISNEY S MOTION TO DISMISS ON STANDING AND JURISDICTION Respondent Walt Disney World Co. (Disney) has filed a motion to dismiss for lack of standing and jurisdiction. ( Disney Motion ). This brief by Respondent Dr. McNamara demonstrates that the motion is without merit on both procedural and substantive grounds. The standing argument is based on federal law (the Americans with Disabilities Act, and Article III of the Constitution), and ignores Florida law. Under either federal or state law, however, Dr. McNamara has standing. The jurisdiction argument is solely that there is no jurisdiction to award declaratory relief. However, because there is a right to injunctive relief, the jurisdiction argument is irrelevant. Disney s motion is not accompanied by any statement of facts or affidavits. There are no undisputed facts dispositive of this motion; the Administrative Law Judge will recall that, in response to the ALJ s order, the parties filed less than a handful of undisputed facts. The motion is apparently presented under Fla. R. Civ. P (b) (permitting defenses of lack of jurisdiction, and failure to state cause of action to be presented by motion), although no Florida rule or other law is cited as a basis, nor does Disney

2 acknowledge the high barrier to dismissal pre- discovery and pre- trial in the absence of undisputed facts. I. Absent Facts, the Motion to Dismiss on Standing Grounds Cannot Be Granted. The details of the events in question, and of the facts which Disney alleges in the motion to dismiss, are critical to any grant of the motion to dismiss. Disney s brief is replete with factual statements which it claims clearly show this or that, or are fatal to this or that. Absent a trial or, at the least, completed discovery, and thereafter a review of the facts, there is no basis for a dismissal. A motion to dismiss must be based on the complaint and facts of record which are undisputed or not subject to dispute. Disney did not file a motion for summary judgment and could not have done so, since discovery has not been completed. At this stage of the litigation, dismissal cannot be granted on the law applied to the pleadings. Disney s dodging of the basic rule is based purely on Disney s manipulation of the exchanges on time- limited near- in- the- future participation at trial, not on a full record showing the relevant facts. II. Disney s Facts Are Distorted and Disputed. Unfortunately, Disney in this motion distorts and misstates the facts. Two examples will suffice. One distortion relates to Disney s standing argument. Another to Disney s false claim on examination of the stand- up vehicle. A. The Shoehorned Facts on Standing Disney distorts and shoehorns alleged facts into Disney s view of the law on standing. Disney begins with a faulty syllogism based on a non- sequitur. This is Disney s sentence, with numbering inserted for convenient referencing: 1. petitioner has repeatedly asserted throughout this proceeding that his disability prohibits him from traveling to Florida, 2

3 2. and such admission clearly shows that he does not have any definitive plans or a specific intent to visit WDW in the future. 3. This deficiency is fatal to petitioner s case because it establishes that his alleged injury is not imminent and cannot be redressed by the ALJ. Disney Motion at 2. Let us examine each of these statements. No. 1 is incomplete and incorrect. Dr. McNamara has asserted that he could not travel to Florida for the noticed deposition due to his physical condition at the time; he also requested to be present for a hearing on the merits by telephone. These were not statements stating the future of his capacity to travel, for any length of time. While he has certainly had serious and increasing medical problems, that is not a commentary on the results of future treatment or Dr. McNamara s intentions. No. 2 jumps in a non- sequitur to claiming that such admission clearly shows no definitive plans to visit Disney in the future. First, Dr. McNamara cannot plan to visit Disney as long as the discriminatory policy is in effect. Second, his inability to travel right now for short deposition or for a day or two hearing does not speak to his ability to more leisurely and securely travel in the future for a longer less physically taxing visit to Disney. No. 3, the legal conclusion that there is no redressable injury, does not follow from Nos. 1 and 2, since Nos. 1 and 2 are both fully incorrect and deficient. Disney then stretches the gossamer further, taking this failed reasoning and manufacturing yet another fact not in the record. Disney states, petitioner clearly fails to meet this test because he does not intend to visit WDW in the future. Disney Brief at 4. However, that assertion is incorrect. Disney has presented nothing which proves that Dr. McNamara does not intend to visit WDW in the future. B. Disney s False Claim on the Stand-up Vehicle Disney falsely claims that Dr. McNamara refused to examine or consider Disney s stand- up vehicle as an alternative mobility device. Disney states: 3

4 Petitioner rejected Worldco s new Electric Standup Vehicle ( ESV ) sight unseen and because he never came to Florida, he has no firsthand information about this mobility device or any of Worldco s other programs and policies that accommodate persons with disabilities. 1 That assertion is nonsense. In fact, as we have noted previously, Dr. McNamara specifically requested Disney to provide information on its stand- up vehicle, including its specifications, and said that he was open to considering it. As we will show as the record is later developed in discovery, Dr. McNamara, in writing, in s to Disney, on November 19, and December 6, 2008, requested Disney for information on the Disney four-wheeled stand-up device such as its mode of operation, comfort, range, agility, safety, and possible waivers Disney might request, and possible charges. Disney never provided that information to Dr. McNamara. We do not burden the record with copies of those s, both of which were sent to Disney and were produced to Disney in Dr. McNamara s response to Disney s discovery requests. Disney seems to expect Dr. McNamara to have traveled to Florida to inspect the then- non- existent vehicle, just in case it might be workable; if not, he was presumably to return to Ohio without visiting Disney. 2 xxx III. The Florida Civil Rights Act Applies to Residents of Other States Visiting Florida We reject as absurd Disney s suggestion that residents of other States in the Nation are not protected by Florida s civil rights laws. Disney Motion to Dismiss at 2 ( Clearly, the FCRA is not intended to protect out- of- state residents like Dr. McNamara. See (2) ( The 1 Disney Motion to Dismiss at 2, n Dr. McNamara planned his family trip to Disney not as a tester but to witness the unique event of his high school son playing an Easter baseball game at Disney s sports complex. When developed, the record will show his continuing desire to visit Disney once the discriminatory practices are ended. This case is therefore quite unlike the multiple decisions in which testers, often lacking in credibility, file repeated abusive suits. E.g., Brother v. Rossmore Tampa L.P., 2004 U.S. Dist. LEXIS (Aug. 19, 2004, M.D. Tampa) (filed over 70 lawsuits against places of public accommodation); Lamb v. Charlotte County, 429 F. Supp. 2d 1302 (M.D. Fla. 2006) (allegations re intent to return were not credible). 4

5 general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination... ) (emphasis added). IV. Dr. McNamara Has Standing Under Florida Law Disney s motion to dismiss on standing grounds does not mention Florida law at all. It is, of course, Florida law which is pertinent. We have demonstrated in Petitioner s brief on legal standards that the Florida Civil Rights Act s public accommodations provision is not patterned on the federal ADA. Its language is different and its approach is different, and Florida chose a very broad one- sentence declaration different from the federal approach. Therefore, federal ADA law on standing should not be applied in this case (although, as we show below, the federal standards support standing here) 3 Judicial standing principles are not the same as those in administrative proceedings under Florida law. As Judge Clark stated in Rhea v. Alachua County School Board, Case No RX (Div. of Administrative Hearings, Aug. 26, 1991), affirmed, DCA Case No ). Principles of standing in administrative proceedings are distinguished from principles of standing to sue in judicial forums. In fact, one legal scholar advocates use of the term "access" rather than "standing" in the context of executive branch proceedings. See, Dore, Access to Florida Administrative Proceedings, 13 FLA. ST. LAW REV., 965, Even if Disney was correct in its discussion of federal law (see Section IV below), and Dr. McNamara intended never again to seek admission to Disney, Florida law does not limit the benefit of civil rights administrative orders solely to the named plaintiff, where a public accommodation has an illegal practice. An order prohibiting an offending public 3 We acknowledge the Florida long- standing rule of statutory construction which, although not applicable here, recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit and policy of the Florida legislation. Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994; O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991) 5

6 accommodations practice must be issued if a violation has occurred. Fla. Stat (6) provides that: Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss and If the administrative law judge, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay In any action or proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. (emphasis added) If the law was otherwise, then anyone subjected to a one- time discriminatory event could never receive relief under the civil rights statute as long as quantifiable damages were not sustained. The result would be that public accommodations could discriminate freely against one person at a time. Obviously, that is not what the law intends. The requirement that the discriminatory practice be prohibited takes care of the issue; once even the one- time violation occurs, the ALJ will shall issue an order prohibiting the practice. 4 An ALJ finding a violation shall issue an order prohibiting future discriminatory practices by the responding party. 5 For example, in Brown, the FCHR found that the respondent unlawfully discriminated against the petitioner when it failed to rent her a room at its hotel because of petitioner s race. Brown v. Capital Circle Hotel Company, FCHR Order No (March 7, 2003). The presiding ALJ issued an order recommending that the FCHR issue a Cease and Desist Order prohibiting Respondent from repeating this practice in the future. Brown, 2002 Fla. Div. Adm. Hear. LEXIS 1712 at *4 (emphasis added). The FCHR adopted the ALJ s recommendation and entered an order requiring the 4 We reject as absurd Disney s suggestion that residents of other States in the Nation are not protected by Florida s civil rights laws. Disney Motion to Dismiss at 2 ( Clearly, the FCRA is not intended to protect out- of- state residents like Dr. McNamara. See (2) ( The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination... ) (emphasis added). 5 For the ALJ s convenience, the following paragraphs discussing Brown and McGrath are taken from Petitioner s brief on remedies, as the topics of that brief and this one overlap. 6

7 respondent to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner, as recommended by the Administrative Law Judge in the Recommended Order. Brown, FCHR Order No Thus, in a similar order, in McRath v. One Stop Food Market, the FCHR found that the respondent committed an unlawful public accommodations practice pursuant to Fla. Stat on the basis of petitioner s race and sex when she visited the respondent s mini- market to purchase a cup of coffee. FCHR Order No (June 24, 2010). The ALJ issued an order recommending that the Florida Commission on Human Relations enter a final order prohibiting One Stop Food Market from engaging in any further discriminatory public accommodation practice Fla. Div. Adm. Hear. LEXIS at *15-16 (emphasis added). The FCHR adopted the ALJ s recommended order in full. McRath, FCHR Order No Similarly, there is no indication in the previously- discussed cases, Fioravanti v. Carnival Cruise Lines, 2006 Fla. Div. Adm. Hear. LEXIS 566, (Fla. Div. Adm. Hear. 2006) (the child in the cruise line case) or Chicvak v. Walt Disney World, No , 2006 Fla. Div. Adm. Hear. LEXIS 180, *11 (the blind child visiting Disney on a particular day), that a complainant must intend to come back and be discriminated against again in order to proceed under state law. IV. If the ALJ Reaches the Issue, There is Standing Under the ADA 1. ADA Law on Standing is Irrelevant Here Dr. McNamara has previously demonstrated that the legal standard in this case is that under Florida law, not federal law. After all, this case is filed under the Florida Civil Rights Act s public accommodations provision. That provision s language and import are quite different from the federal ADA. Disney s argument on standing is based on federal law, both the Constitution s Article III and the ADA. If the Administrative Law Judge rejects Dr. McNamara s argument on the legal standard, and also rejects the points above on the inappropriateness of ruling on the 7

8 motion to dismiss on standing without any factual record, only then would the ALJ reach the federal ADA standing question. 2. Broad Construction of Standing Is Required in ADA Cases Standing doctrine is based on both prudential concerns and on constitutional limitations on federal court jurisdiction. E.g., Bennett v. Spear, 520 U.S. 154, 162 (1997); Warth v. Seldin, 422 U.S. 490, 498 (1975). The United States Supreme Court has instructed that courts must take a broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement suits "are the primary method of obtaining compliance with the Act. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); see also 42 U.S.C (a) (providing private right of action for injunctive relief against public accommodations that violate the ADA). Strong enforcement of the ADA is intended by Congress; rulings on standing acknowledge the need to broadly construe standing requirements to that end. Given the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals. Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. Me. 2003). 6 Congress intended that the ADA serve as a "clear and comprehensive national mandate" to eliminate discrimination against disabled individuals. 42 U.S.C (b)(1). It envisioned "clear, strong, consistent, enforceable standards addressing discrimination against [disabled] individuals." Id. at 12101(b)(2). Further, the ADA is a remedial statute, see Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996), and should be broadly construed to effectuate its purpose, see Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967). Hence, our analysis of Article III standing, informed by the ADA's language and policy, leads us to conclude that Burch has standing to seek relief for any ADA violations in the CCB affecting his specific disability. Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. Mo. 2000). In Steger, a blind plaintiff had 6 Citing Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998); see also Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967) (recognizing the "familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes").. 8

9 entered the defendant's office building one time before filing an ADA lawsuit. Steger, 228 F.3d at 893. During that visit, the plaintiff entered the common area of the building to access the men's restroom. He was unable to find the restroom because the building's signage was non- compliance with the ADA. The suit challenged all of the ADA violations in the building, both related and unrelated to his disability of blindness. The Eighth Circuit held that the plaintiff lacked standing to challenge the ADA violations unrelated to his particular disability. However, the court did not limit plaintiff s standing only to the signage barrier that he had personally encountered; the court concluded that the blind plaintiff had standing to seek relief for any ADA violation in the defendant's building "affecting his specific disability." 3. Disney s Continued Policy Establishes Standing. A Plaintiff Need Not Engage in a Futile Gesture to Test It Again; federal standing requirements for ADA Cases Are Met Where a medical office refused to provide an interpreter and, in writing, told the disabled person to look elsewhere for care, that letter showing the office s policy was held to be equivalent to a smoking gun and sufficient to allow this case to proceed to the fact finder on this factual issue. Majocha v. Turner, 166 F. Supp. 2d 316, 320 (W.D. Pa. 2001). Here, Disney did not contest that Dr. McNamara was disabled, nor did Disney seek to make an individualized decision. It just said, No. 7 7 Majocha v. Turner, 166 F. Supp. 2d 316, 320 (W.D. Pa. 2001): The Letter, mention of which is conspicuously absent from defendants' Statement of Material Facts, unambiguously informs plaintiffs that defendants "cannot meet your needs," and advises them to find another doctor. There is nothing in the Letter to suggest defendants were open to negotiation toward a mutually acceptable solution, explaining why defendants believed they could accommodate Mr. Majocha's impairment via note taking only, or offering to discuss the matter further. Quite to the contrary, a reader of the Letter would reasonably (if not inevitably) believe that defendants were declaring the end of discussion, not the beginning. While defendants offer some deposition testimony that attempts to put the Letter in a more favorable context and tone it down to make it look like something less than an "absolute" refusal to treat or to consult over alternative accommodations, plaintiffs offer equally compelling 9

10 One has standing when plaintiff shows that he or she has sustained or is in danger of sustaining a direct injury. O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) and City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), In ADA cases, there is a broad construction given to standing has particular dimensions. Generally, the risk of future harm is satisfied when a plaintiff can show an intention or a desire to return to be place of injury but for the barriers to access. "[T]o establish standing for an injunction [in the A.D.A. context] a plaintiff must not merely allege past injury, but also a risk of future harm." Access 4 All, Inc. v. Trump Int'l Hotel and Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006). Standing is met where "a plaintiff can 'show a plausible intention or desire to return to the place [of the injury] but for the barriers to access.'" Access 4 All, 458 F. Supp. 2d at 168 (quoting Disabled in Action of Metro. N.Y. v. Trump Int'l Hotel & Tower, No. 01 Civ. 5518, 2003 U.S. Dist. LEXIS 5145, 2003 WL , at *7 (S.D.N.Y. Apr. 2, 2003)). In addition, however, standing is established simply where the ADA non- compliant policy remains in effect, or where the person with disabilities is deterred from patronizing a public accommodation. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (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." Similarly, a plaintiff who is threatened with harm in the future because of existing or imminently threatened non- compliance with the ADA suffers "imminent injury."); Molski v. Arby's Huntington Beach, 359 F. Supp. 2d 938, 947 (C.D. Cal. 2005) plaintiff suffered actual and imminent injury when he alleged that he was currently deterred from returning to the accommodation because of ADA violations); see also Disabled Americans for Equal countervailing evidence to bolster the inference that the Letter means just what it says. In any event, the Letter alone is sufficient to allow this case to proceed to the fact finder on this factual issue; it is as close to a smoking gun as it gets in federal court. The conflicting inferences about the conversations preceding the Letter present a classic issue of material fact and credibility for the fact finder to decide, to the extent they are material. 10

11 Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (granting standing to an ADA plaintiff who had visited a cruise ship on three previous occasions and averred an intent to do so again at some nonspecific future time); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. Cal. 2008)( An ADA plaintiff who has encountered or has personal knowledge of at least one barrier related to his or her disability when he or she files a complaint, and who has been deterred from attempting to gain access to the public accommodation because of that barrier, has suffered an injury in fact for the purpose of Article III. ). As noted above in the discussion of state law on standing, Dr. McNamara seeks an order under the Florida Civil Rights Act which would forbid Disney from continuing its discriminatory practices. Under the ADA, plaintiffs have standing to challenge even barriers and lack of access to which they have not themselves been exposed, and of which they have no personal knowledge. Disney ignores the established principle that an ADA public accommodations plaintiff who has encountered or has personal knowledge of at least one barrier related to his or her disability when he files a complaint and who has been deterred from attempting to gain access to the public accommodation because of that barrier, has suffered an injury in fact for the purpose of Article III. Johnson v. Makinen, 2009 U.S. Dist. LEXIS 60850, (E.D. Cal. July 14, 2009). Accord, Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. Cal. 2008) ( standing to challenge other barriers related to his disability and identified in his expert's inspection, even though the plaintiff had neither encountered nor had personal knowledge of these barriers ); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002); Wilson v. Pier 1 Imps., Inc., 413 F. Supp. 2d 1130 (E.D. Cal. 2006) (holding that a plaintiff suffered an injury in fact even as to illegal barriers that he did not encounter himself and of which he was not aware until his expert visited the store). One incident is enough. 8 There is no need or reason for Dr. McNamara to try again at Disney, given the ADA s important futile gesture rule. 42 U.S.C (a)(1) ( Nothing 8 The rule is similar in housing civil rights cases. As one court explained, In essence, Albertsons reasons that the FEHA allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown. In order to be entitled to a nonsuit, Albertsons must show as a matter of law that under no circumstances could a single failure 11

12 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. ). Here, Dr. McNamara was refused any individualized consideration by Disney based on its inflexible policies. An instructive decision is that in Dudley v. Hannaford Bros., 333 F.3d 299 (1 st Cir. 2003), holding that a one- time discriminatory act, combined with a defendant continuing to hold to its inflexible policy, creates standing in the plaintiff challenging defendant under the ADA. Plaintiff Dudley s disability made him appear to be intoxicated. A retail store clerk refused to permit the customer to show that his appearance was due to his disability. This happened just one time. The First Circuit Court of Appeals found that the rigid non- individualized "refusal to reconsider" policy offended Title III of the ADA. One has standing, even if one does not test the policy again. 9 to accommodate support a finding of a failure to accommodate. (See Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291, 253 Cal.Rptr. 97, 763 P.2d 948; Murray's Iron Works, Inc. v. Boyce, supra, 158 Cal.App.4th at p. 1285, 71 Cal.Rptr.3d 317.) A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 465 (Cal. App. 1st Dist. 2009). 9 Dudley further explains the importance of the futile gesture rule: This conclusion rests, in part, on the background understanding that section 12188(a)(1) negates any requirement that a disabled person engage in a futile gesture to establish the existence of a discriminatory policy or practice. See Pickern, 293 F.3d at (explaining that when a disabled plaintiff has actual knowledge of an illegal barrier at a public accommodation and is thereby deterred, he need not engage in the futile gesture of attempting to gain access to show ongoing harm); Steger, 228 F.3d at 892 (similar). We have scant case law to guide us on how futile a gesture must be to satisfy this benchmark, n3 [omitted], but Congress clearly meant not to overburden Title III claimants. This is evident from the fact that Title III's remedies mirror those contained in Title II of the Civil Rights Act of In 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, 390 U.S. at 401. It is fair to assume that Congress had the same understanding when it enacted Title III of the ADA. See generally H.R. Rep (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"). Limiting Title III relief to instances in which a future violation appears certain to occur would create a standard far 12

13 Similarly, in Fiedler v. Ocean Props., Ltd., 683 F. Supp. 2d 57, 65, 2010 U.S. Dist. LEXIS (D. Me., 2010), a prospective hotel guest alleged that sliding glass door tracks created barrier to wheelchair use that violated Americans with Disabilities Act but had cancelled his hotel reservation; the guest had standing because he was deterred from patronizing owner's hotel due to its failure to comply with Act. The court held: Disabled persons endure a concrete and particularized injury when they "suffer an injury as a result of the [defendant establishment's] noncompliance with the ADA." Pickern, 293 F.3d at 1138). Because Congress specifically excused disabled plaintiffs from having to experience discrimination first- hand by engaging in the "futile gesture" of visiting a non- compliant establishment, 42 U.S.C.A (a)(1), courts hold that the "concrete and particularized" requirement is met when a disabled plaintiff "is currently deterred from attempting to gain access to the [defendant's establishment]." Pickern, 293 F.3d at Thus, Mr. Fiedler's decision not to stay at The Harborside, if made because of the hotel's ADA violations, is a sufficiently concrete and particularized injury to confer standing. V. The Motion to Dismiss on Jurisdiction Is Moot Disney s Motion includes a one- paragraph motion to dismiss any claim for declaratory relief. Because the Florida statute provides for injunctive relief, as discussed above, there is no need for the ALJ to address the declaratory relief issue which Disney now raises. Indeed, Petitioner Dr. McNamara s brief on available remedies, pending before the ALJ, does not request declaratory relief. This prong of the motion to dismiss should be denied as moot. VI. Conclusion For the above reasons, the motion to dismiss for lack of standing should be denied under state law; in the alternative, should the Administrative Law Judge determine that more demanding than that contemplated by the congressional objectives that influenced the ADA. Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. Me. 2003). 13

14 federal law applies, the motion should be denied under federal law. The motion to dismiss for lack of jurisdiction should be denied as moot. Respectfully submitted: /s David Ferleger David Ferleger 413 Johnson Street, Suite 203 Jenkintown, PA Telephone: (215) Facsimile: (215) August 16, 2010 Aaron C. Bates The Maher Law Firm, P.A. 631 W. Morse Blvd., Suite 200 Winter Park, FL FAX Attorneys for Patrick McNamara, M.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 16, 2010, I sent by First Class Mail and copies of the foregoing Response to Motion to Dismiss to the attorneys for Respondent, namely, Kerry Alan Scanlon, Jeremy M. White, Kaye Scholer, LLP th St NW, Suite 1100 Washington, DC Telephone: 202/ Facsimile: 202/ , jewhite@kayescholer.com. /s David Ferleger 14