PARKS

v.

RICHARD

JOHN W RICHARD and SHIPWRECK MOTEL, INC.,

Defendants. /

OPINION AND ORDER1

Before the Court is Defendants John Richard and Shipwreck Motel, Inc.’s (together “Shipwreck”) Motion to Dismiss (Doc. 14) and Plaintiff Clinton Parks’ response in opposition (Doc. 18). The parties also replied and surreplied (Docs. 23; 24). The Court denies the Motion.

BACKGROUND

This is an Americans with Disabilities Act (“ADA”) “e-tester” case. Parks tests websites for compliance with certain federal regulations. He checked a website Shipwreck maintained for its motel—finding deficiencies. What is more, Parks found the same shortcomings on five third-party websites that book reservations for Shipwreck (like Expedia and Orbitz). On the last motion to dismiss, the Court held Parks has standing. (Doc. 11). Now, Shipwreck contends the case is moot after removing its website from the internet. (Doc. 15).

the challenge goes to “subject matter jurisdiction in fact, irrespective of the pleadings.” Morrison v. Amway Corp., 323 F. 3d 920, 924 n.5 (11th Cir. 2003). So courts “consider extrinsic evidence such as testimony and affidavits.” Id. If a defendant claims “voluntary compliance moots a case,” it “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).

DISCUSSION

Article III limits federal courts to hear only “Cases” and “Controversies.” U.S. Const., art. III, § 2. From there, courts derived the mootness doctrine. Soliman v. U.S. ex rel. INS, 296 F. 3d 1237, 1242 (11th Cir. 2002). A “case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Like a brown banana, a moot case is simply past its prime and there isn’t much a federal court can do with it.² So when postsuit events “deprive the court of the ability to give the plaintiff . . . meaningful relief, then the case is moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F. 3d 1330, 1336 (11th Cir. 2001).

As requested, the Court notices Shipwreck’s now-defunct website. But if the Court takes notice of one challenged site, it should also consider the other five. The Court has done so. While clear Shipwreck has cute rooms and fantastic reviews, accessibility information is missing from the third-party sites.³ The Expedia, Hotels, and Orbitz sites are basically identical. The sites say Shipwreck has disabled parking, but nothing reveals Shipwreck offers accessible rooms. There is, however, the following statement: “If you have requests for specific accessibility needs, please note them in the special requests field on the booking page after selecting your room.”4 Yet this disclaimer is not enough to allow disabled individuals to book accessible rooms like nondisabled patrons nor determine whether Shipwreck meets accessibility needs. The Booking site is a bit different. Along with disabled parking, this website informs patrons “Entire unit located on ground floor.” But nothing explains what that means. Finally, the Priceline site comes the closest to providing accessibility information. Under its accessibility section, the site lists “Handicapped Rooms/Facilities.”

DOJ guidance explains hotels must ensure reservations made through third parties are “in a manner that results in parity between those who need accessible rooms and those who do not.” (Doc. 18-1 at 3); see also 28 C.F.R. Pt. 36, app. A § 36.302(e). Although Shipwreck may have defenses, such as whether it provided information to the third parties, those present factual disputes neither argued in the briefing nor appropriate for a motion to dismiss. So Shipwreck’s argument falls flat, and the third-party sites present a live controversy. This distinguishes the case from another, which was found moot. Harty v. Nyack Motor Hotel, Inc., No. 19-CV-1322 (KMK), 2020 WL 1140783 (S.D.N.Y. 2020) (refusing to consider third-party sites because the allegations on them were insufficient).

In response, Shipwreck contends an exception applies. But it misunderstands that provision. The plain language follows: The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

28 C.F.R. § 36.302(e)(2). In other words, it exempts three regulatory requirements when reserving a single room not owned by the building owner. Parks calls this a narrow carve out for circumstances like timeshare or condo rentals. The Court agrees—this provision creates a sort of “Airbnb exception.” And it does not apply to facility owners (like Shipwreck) who own and operate the facility and rent out their own rooms. So it has no bearing here. See 28 C.F.R. Pt. 36, app. A § 36.302(e). In any event, even if the exception applied, it does not affect paragraphs (i) and (ii). The Complaint alleges violations of those subsections. (Doc. 1); see Poschmann v. Coral Reef of Key Biscayne Developers, Inc., No. 17-cv-14363-MIDDLEBROOKS, 2018

WL 3387679, at *3-5 (S.D. Fla. May 23, 2018) (explaining the differences between violations of paragraphs (i)-(ii) and (iii)-(v)). So if the exception applies, it cannot bar all of Parks’ claims. On top of the plain regulatory language, case law cautions against a mootness finding. One court just entered default judgment against a hotel for noncompliance on third-party sites. Kennedy v. NILA Invs., LLC, No. 2:19-cv-090, 2020 WL 3578362 (S.D. Ga. July¹, 2020). And as another explained, a defendant who brings its website into compliance does not automatically moot an ADA claim. Kennedy v. Floridian Hotel, Inc., No. , 2018 WL 10601977, at *3 n.3 (S.D. Fla. Dec. 7, 2018). But the coup de grâce for this Motion is Haynes v. Hooters of Am., LLC, 893 F. 3d 781 (11th Cir. 2018). There, the Eleventh Circuit held an ADA e-tester case was not moot simply because defendant entered a remediation plan as part of settlement in separate (but identical) ADA litigation. Id. at 783-84. Hooters reasoned, “even if [defendant’s] website becomes ADA compliant, [plaintiff] seeks injunctive relief requiring [defendant] to maintain the website in a compliant condition.” Id. at 784. This case is analogous. Even though Shipwreck no longer maintains an ADA violating website, Parks seeks an injunction to ensure thirdparty websites comply with the requirements. So like Hooters, the Court cannot declare the case moot because there is still a live dispute and Parks may be able to obtain relief. Id. at 784. What is more, nothing stops Shipwreck from reactivating its website right after this case. See Laidlaw, 528 U.S. at 190. While the Court need not decide the issue given the third-party sites, Parks may be able to obtain an injunction to prevent Shipwreck from reestablishing a website with ADA deficiencies. Again, much of Shipwreck’s position boils down to frustration with Parks because he is an ADA e-tester. But that is not a reason to dismiss. Because this case is not moot, the Motion is denied. Accordingly, it is now ORDERED: Defendants’ Motion to Dismiss (Doc. 14) is DENIED. DONE and ORDERED in Fort Myers, Florida this 21st day of July, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record