The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is a "Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1)*fn1 and 12(b)(6)*fn2 " filed by Defendant, Burlington Coat Factory, L.L.C. ("Burlington Coat Factory"). For the following reasons, Burlington Coat Factory's Motion will be denied.
Plaintiff, Owen Harty ("Harty") is a Florida resident who is paralyzed
from the waist down and bound to ambulate in a wheelchair.*fn3
By trade Harty is a licensed private investigator, a weapons
handling and safety instructor, and a certified firearms instructor.
He brings this suit
individually and on behalf of all others similarly situated for
alleged violations of the Americans with Disabilities Act, 42 U.S.C. §
12181 et seq (the "ADA"),*fn4 which he encountered at
Burlington Coat Factory's store No. 07 (the "Property"), located in
Clifton Heights, Pennsylvania. He is a licensed firearms safety
instructor and he is also an ADA "tester."*fn5
Harty's proclaimed purpose as a tester is to assert his civil rights and to monitor, ensure, and determine whether places of public accommodation are in compliance with the ADA.
On an unspecified date, Harty visited the Property, and he claims that he encountered architectural barriers, which discriminate against him on the basis of his disability, and which also endangered his safety. In particular, Harty alleges the following violations of the ADA:
1. Where posted, parking signs at the designated accessible parking spaces were not mounted at sufficient heights in violation of section 4.6.4 of the ADAAG;*fn6
2. Disabled use spaces did not have compliant access aisles, in violation of section 4.1.2 and 4.6.3 of the ADAAG;
3. Curb ramps contained excessive slopes, side slopes, or cross slopes in violation of sections 4.7.2. and 4.7.5. of the ADAAG;
4. There was no continuous path of travel connecting all essential elements of the Property in violation of sections 4.3.1 and 4.3.2 of the ADAAG;
5. The restrooms violated section 4.16 of the ADAAG;
6. Grab bars in the restroom stalls did not comply with Sections 4.17.6 and 4.26 of the ADAAG;
7. Urinals did not comply with Section 4.18 of the ADAAG;
8. The restrooms did not comply with Section 4.24 of the ADAAG;
9. Mirrors in the restrooms were in violation of the requirements provided for in Section 4.19 of the ADAAG;
10. Dispensers in the restroom violated Section 4.27 of the ADAAG;
11. A changing area did not comply with requirements of the ADAAG.*fn7
Harty alleges that all of the alterations necessary to effect compliance with the ADA are readily achievable. As a result of the various infringements listed above, Harty claims that he and others similarly situated suffer direct and indirect injury and will continue to do so until Burlington Coat Factory is compelled to comply with the requirements of the ADA. Moreover, Harty alleges that Burlington Coat Factory's non-compliance amounts to discrimination under the ADA, because it denied him access to, and full enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations of the Property.
Though he lives in Florida, Harty claims that he would like to and, intends to return to the Property for two purposes: (1) to avail himself of Burlington Coat Factory's goods and services, and (2) to determine whether the property has been made ADA compliant. Furthermore, Harty asserts that he plans to attend a gun show in Philadelphia in September 2011 and would like to return to the Property at that time, however he is presently deterred from revisiting it because of the "discriminatory conditions" existing ...