148 F. Supp.2d 1298 (2001) | Cited 0 times | M.D. Florida | June 25, 2001


Plaintiffs Edward Resnick ("Resnick") and Access Now, Inc.("Access Now") brought the instant action against DefendantMagical Cruise Company, Limited ("Magical") under Title III ofthe Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101et seq. Plaintiffs contend that Magical has discriminatedagainst them because Magical's cruise ships, the Disney Magicand the Disney Wonder, allegedly are not in compliance with theguidelines promulgated under the ADA regarding accessibility topersons with disabilities.

This cause is currently before the Court on Defendant's Motionto Dismiss Amended Complaint, or in the Alternative, for SummaryJudgment and Incorporated Memorandum of Law (Doc. 17). Plaintiffshave filed a Response to Motion to Dismiss or, in theAlternative, for Summary Judgment (Doc. 20), and with leave ofCourt (Doc. 27) Magical has filed Defendant's Reply toPlaintiffs' Response to Motion to Dismiss or, in the Alternative,for Summary Judgment (Doc. 28). Upon consideration of thesepleadings, the record in this matter, and applicable law, theCourt concludes that Magical's motion must be granted becausePlaintiffs lack standing to bring this case. Furthermore, theaccessibility guidelines upon which the Plaintiffs base theirclaims do not apply to cruise ships.

I. Background

Plaintiff Access Now is a not-for-profit corporation whichidentifies one of its purposes as "to assure that businesses areaccessible to, and usable by, all persons, including thosepersons with disabilities." (Amended Complaint, Doc. 4, ¶ 5).Plaintiff Resnick is the founding member of Access Now and servesas its president.Resnick identifies himself as a qualified individual with adisability under the ADA and states that he has used a wheelchairsince 1954 as a result of polio. (Amended Complaint, Doc. 4, ¶6).

Plaintiffs filed their Amended Complaint (Doc. 4) on July 28,2000. Plaintiff Resnick contends that he "would like to travelone of Magical's vessels, but has reasonable grounds to believethat he was about to be subjected to discrimination in violationof the ADA due to his knowledge of the existence of variousbarriers to accessibility on Magical's vessels." (AmendedComplaint, Doc. 4, ¶ 10). Plaintiff's "reasonable grounds" areallegedly based on his review of Magical's advertising materialsposted on Magical's Internet website. (Amended Complaint, Doc. 4,¶ 10).

Plaintiffs contend that the Disney Magic and the DisneyWonder ("the ships") are "public accommodations" under the ADAand that therefore Magical must comply with Title III of the ADA(42 U.S.C. § 12181-12189) and the regulations contained in28 C.F.R. Part 36. Plaintiffs allege the following specificviolations:

(a) only 16 of the ships' 875 staterooms are designated as accessible, whereas Plaintiffs contend that under § 9.1.2, 28 C.F.R. § 36, part A, each ship should have at least 18 accessible staterooms and an additional 8 staterooms with roll-in showers;

(b) the accessible staterooms are not distributed among the 12 different classes of accommodations on the ships, allegedly in violation of 42 U.S.C. § 12182(b)(A)(iii) [sic];

(c) the accessible staterooms lack access and accommodations for persons with disabilities, including, for example, lack of appropriate safety devices or electric receptacles at appropriate heights;

(d) the ships lack appropriately sloped ramps, handrails, and landing areas;

(e) the ships lack the appropriate number or type of telecommunications devices for the hearing impaired;

(f) the ships lack doors and doorways of appropriate widths, resistance, and closing delay;

(g) the ships lack signage as to accessible routes;

(h) the ships lack signage on restroom doors and otherwise fail to conform to the requirements §§ 4.2.3, 4.22.3, 4.30.2, 4.30.4, 4.30.5, and 28 C.F.R. § 36, Part A.

(i) the ships lack sufficient restrooms for access to individuals with disabilities;

(j) the ships lack appropriate "signage for disability facilities";

(k) the ships lack adequate visual and audible alarms and notification devices;

(l) the ships lack appropriately positioned and controlled drinking fountains;

(m) the ships lack air conditioning controls, emergency switches, and other mechanisms at appropriate heights and/or with appropriate controls;

(n) the ships lack appropriate service counters;

(o) the ships lack a lift or other accessible means of disembarkation at ports of call;

(p) the ships lack accessible seating throughout each assembly areas.

(Amended Complaint, Doc. 4, ¶ 16).

In its Motion to Dismiss or for Summary Judgment (Doc. 17),Magical raises two arguments. First, Magical contends thatPlaintiffs lack standing to bring their claims because they havesuffered to injury and because the website on which Plaintiffsbase their contention that the ADA is being violated does notprovide the information necessary to base such claims. Secondly,Magical contends that dismissal or summary judgment isappropriate because there are no promulgated guidelines orregulations under the ADA governingcruise ships and that therefore Magical's ships are not inviolation of any guidelines as alleged by Plaintiffs.

II. Discussion

A. Standing

First, Magical moves for dismissal or summary judgment on thebasis that Plaintiffs lack standing to bring the instant claimsbecause they had not boarded or attempted to board either theDisney Wonder or the Disney Magic prior to the time that thislawsuit was filed. Magical also contends that Plaintiffs' attemptto invoke the "futile gesture" provision of the ADA in order toattain standing should be rejected.

As the United States Supreme Court explained in Lujan v.Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119L.Ed.2d 351 (1992), "the irreducible constitutional minimum ofstanding contains three elements" — injury in fact, causation,and redressability. Resnick and Access Now — as the partiesseeking to invoke federal jurisdiction — bear the burden ofestablishing each of these elements. Id. at 561, 112 S.Ct.2130. Magical challenges only the injury-in-fact element in itsmotion (Doc. 17, at 6 n. 2). In order to satisfy this element,"the plaintiff must have suffered . . . an invasion of a legallyprotected interest which is (a) concrete and particularized and(b) `actual or imminent, not "conjectural or hypothetical."'"Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted). Theplaintiff must himself be "`among the injured.'" Id. at 563,112 S.Ct. 2130 (quoting Sierra Club v. Morton, 405 U.S. 727,734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). The determination ofwhether a plaintiff has standing to bring suit is made as of thedate the lawsuit is commenced. See Lujan, 504 U.S. at 569 n. 4,112 S.Ct. 2130; Paul Revere Variable Annuity Ins. Co. v. Zang,248 F.3d 1, 5 n. 2 (1st Cir. 2001); Becker v. Fed. ElectionComm'n, 230 F.3d 381, 386 n. 3 (1st Cir. 2000); Steger v.Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000); Tucker v.Phyfer, 819 F.2d 1030 (11th Cir. 1987).

The ADA allows suit to be brought by "any person who is beingsubjected to discrimination on the basis of disability inviolation of this subchapter or who has reasonable grounds forbelieving that such person is about to be subjected todiscrimination." U.S.C. § 12188(a)(1). It is undisputed thatResnick has not been on board or attempted to board either theDisney Magic or the Disney Wonder. Hence, Plaintiffs have notbeen subjected to discrimination.1 However, Plaintiffs allegein their amended complaint that they have reasonable grounds tobelieve that they are about to suffer discrimination based onknowledge they have acquired from Resnick's review of Magical'swebsite and its information regarding the amenities of the ships.

The Court finds that Resnick's review of the website isinsufficient to confer standing upon him or Access Now. Resnickalleges that he "would go on cruises on Magical's vessels, if notfor the Defendant's lack of accommodation for personswith disabilities." (Amended Complaint, Doc. 4, ¶ 10). Thealleged "reasonable belief" based only on review of Magical'sInternet website that Resnick would encounter discrimination ifhe attempted at some unspecified time in the future to cruise onone of Magical's ships does not constitute "concrete andparticularized" injury. Additionally, the alleged injury ismerely "conjectural or hypothetical" rather than "actual orimminent." See, e.g., Deck v. Am. Hawaii Cruises, Inc.,121 F. Supp.2d 1292 (D.Haw. 2000) (finding plaintiff's stated plans to"look into" taking a cruise in the future merely constituted"speculative and conditional intention" which was "insufficientto sustain standing"). Moreover, because standing is determinedas of the date of the commencement of the lawsuit, any attemptsto achieve standing after the suit was filed areineffective.2

Furthermore, the Court agrees with Magical that Plaintiffs'reliance on the "futile gesture" exception is misplaced. Thefutile gesture provision of the ADA states as follows:

(1) Availability of remedies and procedures

The remedies and procedures set forth in section 2000a-(3)a of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title. Nothing 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.

42 U.S.C. § 12188(a)(1) (emphasis added); see also28 C.F.R. § 36.501(a) (same). A plaintiff may have "actual notice" underthis provision by either having "encountered discrimination or[having] learned of the alleged violations through expertfindings or personal observation." Parr v. L & L Drive-InnRest., 96 F. Supp.2d 1065, 1081 (D.Haw. 2000); see also Steger,228 F.3d at 892 ("Although plaintiffs need not engage in the`futile gesture' of visiting a building containing known barriersthat the owner has no intention of remedying, they must at leastprove knowledge of the barriers and that they would visit thebuilding in the imminent future but for those barriers.")(citation omitted); cf. Moreno v. G & M Oil Co., 88 F. Supp.2d 1116,1117 n. 1 (C.D.Cal. 2000) (noting that the futile gestureprovision in the second sentence of section 12188(a)(1) "does nomore than clarify the previous sentence's statement that aplaintiff `about to be subject to discrimination' may sue. Itdoes not eliminate the requirement of actual existing orthreatened discrimination.").

In the instant case, Plaintiffs cannot avail themselves of the"futile gesture" exception because they did not have "actualnotice" at the time suit was filed that Magical did not intend tocomply with the statute. Plaintiffs have not encountereddiscrimination; rather, they filed suit after merely reviewingMagical's website. A review of this website does not providePlaintiffs with knowledge of current or imminent discrimination.The unrefutedaffidavit submitted by Magical states that the website does notreveal actual measurements or purport to accurately represent thenumber or quality of the ships' features. (Aff. of JosefNorsworthy, Doc. 19). That affidavit further provides that the360-degree panorama views upon which Plaintiffs heavily rely as abasis for their claims were not added to Magical's website untilAugust 29, 2000 — six months after the instant suit was filed onJuly 14, 2000. (Aff. of Josef Norsworthy, Doc. 19). Accordingly,even if these 360-degree views somehow bolstered Plaintiffs'"actual knowledge," based on the record before this Court it wasimpossible for Plaintiffs to have had such knowledge as of thetime suit was filed. Therefore, even if Plaintiffs had alleged aconcrete intention to cruise on one of Magical's vessels, theywould still lack the requisite reasonable grounds for theiralleged belief that they would suffer discrimination. In short,there is no record evidence that Plaintiffs had knowledge at theinception of this suit of any alleged violations from personalobservation or expert findings.3 Accordingly, Plaintiffs donot have standing to maintain this action, and summary judgmentwill be entered for Defendant Magical.

B. Guidelines

Assuming arguendo that Plaintiffs have standing to bring theinstant action, this Court will address Magical's second argumentin support of its motion. Magical's second point is that the newconstruction and alteration standards relied upon by Plaintiffsin their complaint do not apply to cruise ships. Magical contendsthat although Title III of the ADA may generally apply to cruiseships, see Stevens v. Premier Cruises, Inc., 215 F.3d 1237(11th Cir. 2000), no guidelines or regulations have beenpromulgated under the ADA governing construction or alteration ofcruise ships. Hence, Magical argues, there are no guidelineswhich it could possibly be violating. Magical also contends thatapplying the ADA Accessibility Guidelines for Buildings andFacilities ("ADAAG") to cruise ships would violate due process.Notably, Plaintiffs do not address this guidelines argument intheir Response to Motion to Dismiss or, in the Alternative, forSummary Judgment (Doc. 20).

In the ADA, Congress directed the Attorney General and theDepartment of Transportation4 to issue regulations on orbefore July 26, 1991 to effectuate the ADA's provisions.42 U.S.C. § 12186.Plaintiffs base their claims on the public accommodationprovisions of the ADA rather than the transportation vehicleprovisions, and accordingly the regulations of the Department ofJustice rather than the Department of Transportation are at issuehere. Final regulations — the ADAAG — relating to publicaccommodations were adopted by the Department of Justice in 1991and are contained in Appendix A to 28 C.F.R. Part 36.

However, the Department of Justice has taken the position thatthe regulations regarding new construction and alterationspromulgated under its authority do not apply to cruise ships andthat subpart D of Title III relating to new construction andalterations will not be extended to cruise ships untilrequirements appropriate for cruise ships are established. Seegenerally Deck v. Am. Haw. Cruises, Inc., 51 F. Supp.2d 1057,1060-1061 (D.Haw. 1999) (discussing the departmental position onthe applicability of the ADAAG to cruise ships and concludingthat "to the extent Plaintiff's claims fall within subpart D ofthe ADA regarding new construction and alterations of facilities,these claims are not covered by the ADA"). For example, in thepreamble to the Department of Justice Regulations relating topublic accommodations, the Department discussed cruise ships inconnection with the definition of "facility":

[C]ommenters raised questions about the applicability of this part to places of public accommodation operated in mobile facilities (such as cruise ships, floating restaurants, or mobile health units). Those places of public accommodation are covered under this part, and would be included in the definition of "facility." Thus the requirements of subparts B and C would apply to those places of public accommodation. For example, a covered entity could not discriminate on the basis of disability in the full and equal enjoyment of the facilities (§ 36.201). Similarly, a cruise line could not apply eligibility criteria to potential passengers in a manner that would screen out individuals with disabilities, unless the criteria are "necessary," as provided in § 36.301.

However, standards for new construction and alterations of such facilities are not yet included in the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) adopted by § 36.406 and incorporated in Appendix A. The Department therefore will not interpret the new construction and alterations provisions of subpart D to apply to the type of facilities discussed here, pending further development of specific requirements.

28 C.F.R. Pt. 36, App. B, at 623 (discussion of § 36.104)(emphasis added). Later in the preamble, the Department ofJustice reiterated this position, stating that "[a]s explainedunder the discussion of the definition of `facility,' § 36.104,pending development of specific requirements, the Department willnot apply this subpart to places of public accommodation locatedin mobile units, boats, or other conveyances." 28 C.F.R. Pt. 36,App. B, at 655 (discussion of subpart D).

Moreover, in the ADA Title III Technical Assistance Manualissued by the Department of Justice Civil Rights Division, theDepartment also states that cruise ships need not meet newconstruction requirements until specific guidelines arepromulgated. The Department explains:

ILLUSTRATION: A cruise ship is owned and operated by a private entity whose primary business is to operate cruise ships. On the ship are places of lodging, restaurants, bars, a health club, and a nightclub. The private entity is a public accommodation and must comply with the applicable requirements of title III.

Places of public accommodation aboard ships must comply with all of the title III requirements, including removal of barriers to access where readily achievable. Currently, however, a ship is not required to comply with specific accessibility standards for new construction or alterations, because specific accessibility standards for new construction or alteration o[f] cruise ships have not yet been developed.

Americans With Disabilities Act Title III Technical AssistanceManual, III-1.2000. In discussing the application of the ADAAG,the Department of Justice states:

ILLUSTRATION 3: Because of the unique structure of ships, none of the ADAAG technical or scoping standards are appropriate. Until such time as the Architectural and Transportation Barriers Compliance Board issues specific standards applicable to ships, there is no requirement that ships be constructed accessibly. (Cruise ships would still be subject to other title III requirements.)

Americans With Disabilities Act Title III Technical AssistanceManual, III-5.3000.5

In the instant case, Plaintiffs' allegations are based on thefailure of Magical to comply with the ADAAG which have beenpromulgated for new construction and alteration of buildings andfacilities but which have been deemed by their promulgating bodyas inapplicable to cruise ships. This Court finds that suchclaims cannot be maintained. In so ruling, this Court is notunmindful of the Eleventh Circuit's holding in Stevens that theADA generally applies to cruise ships, nor does this Court nowhold that a claim for denial of access to or on a cruise shipcannot be maintained as matter of law even in the absence ofregulations. However, the Court sees no basis under the currentADA scheme for a plaintiff to bring a claim that a cruise shiphas failed to adhere to guidelines which have been declaredinapplicable to cruise ships by the departments charged withpromulgation of such guidelines. Magical and other builders,owners, and proprietors of cruise ships have not been affordednotice of the standards with which they are required to comply,and absent such standards may not be subjected to abstract suitssuch as the instant matter. Cf. Botosan v. Paul McNally Realty,216 F.3d 827, 836 (9th Cir. 2000) (finding the term "readilyachievable" in the ADA not vague because when "[t]aken togetherwith administrative regulations and interpretations, the term, asit is used in Title III, is sufficiently specific to put theowner of a public accommodation on notice of what is required byTitle III" and citing United States v. Schneiderman,968 F.2d 1564, 1568 (1992), for the proposition that "administrativeregulations and interpretations may provide sufficientclarification to save an otherwise vague statute").

Therefore, even assuming arguendo that Plaintiffs have standingto bring the instant claims, the Court agrees with DefendantMagical that because the guidelines cited and relied upon byPlaintiffs do not apply to cruise ships, Magical cannot beheld in violation of such standards and summary judgment shall beentered for Magical.

III. Conclusion

In accordance with the foregoing, it is ORDERED andADJUDGED as follows:

1. Defendant's Motion to Dismiss Amended Complaint, or in theAlternative, for Summary Judgment (Doc. 17) is GRANTED.

2. All other pending motions are DENIED as moot.

3. The Clerk is directed to enter judgment in favor ofDefendant Magical Cruise Company, Limited in accordance with thisOrder and thereafter to close the file.


Decision by Court. This action came before the Court. Theissues have been heard and a decision has been rendered.


that judgment be entered in favor of the Defendant, MagicalCruise Company Limited, and against Plaintiffs', Edward S.Resnick and Access Now, Inc. in accordance with District Courtorder dated June 25th, 2001.

1. In the Response to Motion to Dismiss or, in theAlternative, for Summary Judgment, Access Now claims standingthrough Resnick; hence, if Resnick lacks standing so does AccessNow. (Doc. 20, at 12-14). See, e.g., Warth v. Seldin,422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (noting thatassociation may have standing as the representative as itsmembers but that association must allege injury or threatenedinjury to at least one of its members "of the sort that wouldmake out a justiciable case had the members themselves broughtsuit"); accord Friends of the Earth, Inc. v. Laidlaw Envtl.Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610(2000) ("An association has standing to bring suit on behalf ofits members when its members would otherwise have standing to suein their own right.").

2. Plaintiffs have filed the statement of an alleged expert,William Cody, which states that he went aboard the DisneyWonder as a paying cruise passenger and determined that the shipdoes not comply with guidelines promulgated under the ADA.(Statement of William B. Cody, Doc. 26). However, it isundisputed that William Cody did not board either of Magical'svessels until January 2001 — six months after the Complaint wasfiled.

3. Again, Plaintiffs did submit the statement of a purportedexpert, William Cody, as to alleged violations he found when hevisited one of Magical's ships. However, it is undisputed thatCody did not board the ship or gain any "knowledge" that he couldpass along to Plaintiffs until six months after this lawsuit wasfiled.

4. As one source explains:

The Department of Transportation is responsible for issuingregulations to implement the transportation vehicle requirementsof title III of the ADA. 42 U.S.C. [§] 12186(a)(1). . . .

The Department of Justice is responsible for issuingregulations to implement the public accommodation requirements oftitle III of the ADA. 42 U.S.C. [§] 12186(b). Under theDepartment of Justice regulations, places of public accommodationon passenger vessels are covered by the public accommodationrequirements of title III of the ADA. 28 C.F.R. part 36, appendix B.. . . Thus, some passenger vessels such as cruise ships aresubject to both the transportation vehicle and publicaccommodation requirements of title III of the ADA.

Michael R. Masinter, Title III of the ADA and Privately OperatedCruise Ships, 790 PLI/Comm 519, 535 nn. 4-5 (Apr. 1999). Asnoted in the text infra, Plaintiffs base their claims on thepublic accommodation requirements of the ADA, and therefore theregulations at issue in the instant case are those of theDepartment of Justice.

5. Similarly, the Department of Transportation has not yetpromulgated specific requirements for vessels, but it notes that"ferries and other passenger vessels operated by private entitiesare subject to" the Department's general rule onnondiscrimination in 49 C.F.R. § 37.5 and to the "applicablerequirements of 28 C.F.R. part 36, the DOJ rule under title III ofthe ADA." 49 C.F.R. Part 37, App.D (discussing section 37.109);see also Transportation for Individuals with Disabilities, 56Fed.Reg. 45,584, 45,599-600 (Sept. 6, 1991) (noting that "cruiseships are a unique mode of transportation" and that "at thepresent time, the Department lacks sufficient information todetermine what are reasonable accessibility requirements forvarious kinds of passenger vessels," including cruise ships).

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