Houston v. Marod Supermarkets: Can a business defend against an Americans with Disabilities Act case by claiming that a disabled plaintiff is not a bona fide customer? 

Author: Nolan Klein

In Houston v. Marod Supermarkets, Inc., a case brought before the Eleventh Circuit Court of Appeals (the federal appellate court for Florida, Georgia, and Alabama), a plaintiff by the name of Joe Houston sued the defendant corporation, alleging that the defendant’s supermarket (the Presedente Supermarket in Miami), had Americans with Disabilities Act violations including a lack of accessible parking, and inaccessible restrooms. 


Mr. Houston was disabled and used a wheelchair for mobility purposes. He alleged that he had encountered these barriers on a prior trip to the defendant supermarket, and that he intended to return to the supermarket after the ADA violations were fixed. It is important to understand that alleging an intent to return to the supermarket is critical, because the only relief available under the ADA is an injunction, and to get an injunction (preventing future harm), there has to be an allegation that the plaintiff will return to the business in the future and needs the ADA violations to be cured for that visit. 


The defendant supermarket argued that Mr. Houston had no intent to return. They pointed to the fact that he had filed or been involved in about 271 other ADA cases, alleging in each case that he had an intent to return. The defendant argued that it was not credible to believe that he intended to return to so many businesses, spread out across the state. 


In response to that argument, Mr. Houston provided proof that he had shopped at the supermarket in the past and swore (by affidavit) that he would shop there again in the future, if it becomes ADA compliant. The trial court held that Mr. Houston was not a “bona fide patron” who was suing for relief under the Americans with Disabilities Act, and that instead his “visits are a testing campaign ‘rather than a genuine prayer for relief by an aggrieved party.’” On that basis, the trial court dismissed the case. 


In overturning the trial court and reinstating the case, the appellate court ruled that (a) as a disabled person, Houston has a right to be free from barriers to access made illegal by the Americans with Disabilities Act; and (b) this right is not dependent upon the motive for visiting the supermarket; even if the supermarket was visited, and will be visited, only to test for ADA violation, that fact is not a relevant consideration in determining whether he has stated a claim for violation of the ADA. 


As a consequence of this case, at least in the Eleventh Circuit, a tester plaintiff clearly does have the ability to file claims under Title III of the ADA, irrespective of any genuine or bona fide desire to patronize the business that was sued. As long as there is an ADA violation, a disabled person who encountered that violation has the right to sue for remediation of the violation. 


Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013)