Federal Appeals Court Unleashes “Serial Litigator” on Florida Small Businesses

Joe Houston has filed more than 270 lawsuits against Florida businesses. Houston, who is disabled and confined to a wheelchair, has made a career out of suing small businesses over alleged violations of the Americans with Disabilities Act (ADA). As one federal judge described Houston, “He travels up, down, and across the byways of South Florida, doggedly in search of a grievance to call his own, are worthy of a Carl Hiassen plot.”

Unfortunately for business owners, a federal appeals court in Atlanta recently green-lighted at least one of Houston’s travels. In this case, Houston sued Marod Supermarkets, Inc., owners of a Presidente Supermarket in Miami-Dade County. He claimed the store failed to comply with ADA requirements for disabled parking and restroom access.

A federal judge in Miami dismissed Houston’s complaint for lack of jurisdiction. The judge agreed with Marod that Houston suffered no real discrimination as he was never a legitimate customer of the store. Marod pointed at Houston’s litigation history—271 cases filed in federal court—as evidence he was nothing more than a serial litigator.


“Tester” or “Serial Litigator”?

The United States Constitution requires a “case or controversy” before a federal court may invoke its jurisdiction. Federal courts cannot remedy hypothetical injuries. In Houston’s case, he had to show that he was likely to shop at the Presidente Supermarket again where he would face barriers to access subject to remedy under the ADA. In other words, he had to show there was a “threat of an actual or imminent injury” due to Marood’s failure to comply with the law. The district court concluded he couldn’t do that.

Houston appealed, however, and the U.S. Eleventh Circuit Court of Appeals voted 2-1 to reinstate his lawsuit. Circuit Judge Frank M. Hull, writing for himself and Circuit Judge Beverly B. Martin, said Houston could bring his complaint as a “tester,” someone who isn’t necessarily a customer of a business but rather someone who is simply “collecting evidence of unlawful practices.” The U.S. Supreme Court has allowed such testers to sue under other anti-discrimination laws, such as the Federal Housing Act, so Judge Hull reasoned the same standard should apply to Houston’s ADA lawsuit.

Judge Dudley H. Bowen, Jr., a Georgia district court judge who served as the third member of the Eleventh Circuit panel, disagreed with the majority. He agreed with Marood that Houston was a “serial litigator,” and said the “tester” analogy shouldn’t apply here. In housing discrimination cases, Judge Bowen noted, it’s necessary to uncover discriminatory intent. Intent is irrelevant to the ADA; either a business is complying with the physical requirements of the law or it’s not.

Judge Bowen noted that, as a result of the majority’s opinion, Florida retailers would likely pay the price for Houston’s current and future activities: “Seeking injunctions, costs in every variety, and monetary grist for the mills of his attorneys’ offices (the wheels of which surely grind exceedingly expensively), [Houston] is doubtless a force with which many a small business will reckon.”


Protecting Your Small Business

Regardless of Houston’s activism, the ADA is an important federal law and all Florida retailers must be mindful of their duty to comply. As with all complex legal matters, it’s essential to work with an experienced Florida business attorney who can help you avoid litigation whenever possible. Contact the Law Office of John S. Sarrett today if you have any questions.


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