             Case: 18-10302     Date Filed: 08/31/2018   Page: 1 of 18


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-10302
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 9:17-cv-80103-RLR



PATRICIA KENNEDY,

                                                  Plaintiff - Appellant,

versus

OMEGAGAS & OIL, LLC,
a Florida limited liability company,

                                                  Defendant - Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (August 31, 2018)

Before WILSON, JORDAN, and DUBINA, Circuit Judges.

PER CURIAM:
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       Plaintiff-Appellant Patricia Kennedy (“Plaintiff”), who is disabled, sued

Defendant-Appellee Omega Gas & Oil, LLC (“Omega Gas” or “Defendant”) to

compel it to bring its premises at the gasoline service station and convenience store

into compliance with Title III of the Americans with Disabilities Act, 42 U.S.C. §§

12181–12189 (“ADA”). After a bench trial, the district court determined the

majority of Plaintiff’s complaint to be moot due to Defendant’s remediation of the

noncompliant structure or features and further held the alteration of the remaining

barrier was not readily achievable. After reviewing the record and the parties’

briefs, we affirm.

                                      I.      BACKGROUND

       Plaintiff Kennedy is mobility impaired and ambulates by wheelchair; she

also struggles with the ability to grasp or turn objects with her hands. Omega Gas

owns and operates a gas station and convenience store located at 1974 South

Congress Avenue in West Palm Beach, Florida (“the Property”). Walid Alsheikh

is the managing member of Omega Oil.1 Plaintiff visited Defendant’s Property on

January 14, 2017 and discovered several barriers that precluded her use of the

Property and allegedly violated the ADA. Plaintiff documented evidence of the

improperly marked and blocked handicapped parking space, including the

placement of a dumpster and other barriers in the access aisle and faded blue paint

1
      Plaintiff and Defendant do not dispute that Plaintiff is a disabled individual within the
meaning of the ADA or that the Property is a place of public accommodation under the ADA.
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to indicate the access aisle. She further noted unsecured floor mats at the entrance

to the store and to the restroom. Due to the various barriers at the Property,

Plaintiff was unable to enter the restroom but did observe several noncompliant

features of the bathroom, including: the presence of a mop and bucket in the

middle of the floor; a pedestal sink, which would prohibit her from utilizing the

sink; sink and doorknob hardware in the shape of knobs, which require gripping

and twisting to operate; missing or improperly placed grab bars near the toilet; a

flush control on the incorrect side of the toilet; and a paper towel dispenser located

too high to be reached. Plaintiff retained an ADA inspector, who visited the

property on March 20, 2017.

       After filing her suit, Plaintiff revisited the Property on July 18, 2017 and

again faced multiple barriers. While she did not attempt to access the bathroom on

this visit, she noted that the handicap parking space was poorly marked by faded

paint, that the access aisle was not clearly marked, and that furniture obstructed the

access aisle to the space. 2

       As the managing member of Omega Gas, Alsheihk operates the gas station

and store on a day-to-day basis and has the authority to make and to enforce

policies and procedures. Omega Gas acquired the Property in 2002 but did not

know the age of the building. Alsheihk further stated that, prior to this suit, he had

2
       Plaintiff visited the Property for at third time in September 2017 but did not record any
notations of ADA violations at that visit.
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not made any improvements to the Property, with the exception of replacing

existing fuel tanks. He believed, however, that the Property was in compliance

with the ADA based on annual inspections by the State of Florida as part of the

State’s lottery licensing system and because he had never received any complaints.

After receiving Plaintiff’s complaint, Alsheikh used his background in civil

engineering to remedy the noncompliant features of the Property. To do so, he

obtained a copy of the ADA statute and performed some of the work himself or

with the assistance of a handyman or plumber. Prior to the Plaintiff’s inspector’s

visit, Alsheikh took the following action: removed the floor mats from inside the

store and the bathroom; installed new grab bars in the bathroom to meet

requirements for length and height; replaced the hardware on the bathroom door

and the sink with lever handles; replaced the toilet with the flush located on the top

of the toilet; installed a new paper towel dispenser at the correct height; replaced

the sink and moved it to the correct height; replaced the sign for the bathroom and

the handicap parking space to meet ADA requirements; and moved the handicap

parking spot to a space not obstructed by the dumpster. Alsheikh’s improvements

to the Property were ongoing when it was inspected by Plaintiff’s expert.

      Plaintiff’s expert inspector, Carlos Herrera, routinely conducts inspections to

ensure ADA compliance. He holds a bachelor’s degree in civil engineering, a

Florida general contractor’s license, and a certification for accessibility and plan

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review. During his March 20, 2017, inspection, Herrera noted several

noncompliant features of the Property. He observed that it appeared that work was

being done on the Property to make improvements, including the reassignment of

the handicap parking space. At his visit, however, furniture was sitting in the

handicap space. The signage was properly worded. In the bathroom, Herrera

detailed the following problems with ADA compliance: the sign was improperly

placed; the door did not have sufficient maneuvering clearance; the flush control

was located on the top of the toilet rather than the open side of the toilet; the toilet

was located at an improper distance from the wall; the sink was one inch too high

from the floor; and the bathroom did not have the requisite sixty inches of

maneuverable floor space. To obtain a compliant bathroom, the floor space would

have to comply with either the circle or t-shape methods. The circle method

requires a sixty inch radius in all directions, while the t-shape requires four feet of

clear floor space in one direction and three feet of clear floor space in the other

direction. In his report, Herrera estimated the noncompliant features could be

remedied for approximately $7,075. This estimate included a projected cost of

$4,650 to remedy the lack of maneuverable floor space in the bathroom by moving

a bathroom wall approximately three inches to achieve sixty inches of

maneuverable space. Herrera’s estimate, however, did not factor in the actual

mechanics of moving the restroom wall at the site; it reflects a cost analysis for a

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simple separating wall based on an average of other sites he had visited in his

career rather than a specific estimate for the actual Property. In addition, Herrera

testified his assessment did not consider whether moving the wall to add three

inches of floor space was readily achievable.

      After receiving Herrera’s report during discovery, Alsheikh continued to

make alterations to the Property to bring it into compliance with the ADA. He

added two more handicap signs to the bathroom, placing one on the latch side as

required by the ADA. He also removed the door closer, which obviated the need

for twelve inches of maneuvering space. He removed the new toilet with the flush

control on the top and bought and installed a second toilet with flush controls on

the open side. The new toilet was installed so that the center was the proper

distance from the wall. The sink was lowered one more inch to be compliant with

ADA requirements. The noncompliant bathroom finishes that were replaced—the

sink, toilet, hardware, and paper towel dispenser—were thrown away. At trial,

Defendant presented photographic evidence that all items noted in Herrera’s report

were addressed and fixed to ADA standards, with the exception of moving the

bathroom wall to obtain three more inches of maneuverable space. In addition,

Alsheikh instituted a new policy requiring Omega Gas’s employees and tenants to

keep the handicap parking space and bathroom free from any obstacles or

obstructions, such as furniture left near the dumpster or cleaning supplies left in the

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bathroom. All parties were instructed to remove any barriers or obstructions left

by customers promptly.

      Alsheikh testified that he contacted two contractors to provide estimates for

renovating the bathroom to meet the requirements for maneuverable space. At

trial, the contractors testified that they estimated the renovation would cost $80,000

or $85,950. Neither contractor was familiar with the t-shape method of ADA

compliance, and both based their estimates off of the circle method, which required

moving a wall. Both contractors recognized that the wall in question contained

electrical, gas, and plumbing lines, and Alsheihk testified he would be required

close the gas station and store during the renovation. One of the contracting

companies also suggested retaining an engineer, at an additional cost, for the

project.

                             II.     PROCEDURAL HISTORY

      After a bench trial, the district court issued its Memorandum Opinion

finding that Plaintiff was not entitled to judgment in her favor. The district court

found that Defendant had remedied all of Plaintiff’s complaints, except for the

maneuvering space in the bathroom, and that because the violations could not

reasonably be expected to recur, they were moot. The district court further found

Plaintiff failed to meet her burden to prove that the widening of the bathroom by




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moving the wall was readily achievable. After entry of this order and the final

judgment, Plaintiff timely appealed.

                                        III.       ISSUES

   1. Whether the district court erred in finding Plaintiff’s claims, with the

      exception of the maneuverable floor space, were moot due to Defendant’s

      remedial conduct.

   2. Whether the district court erred in finding Plaintiff failed to meet her burden

      at trial that the widening of the bathroom was readily achievable.

                              IV.     STANDARD OF REVIEW

      “Whether a case is moot is a question of law that we review de novo.”

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). A

district court’s findings of fact are reviewed for clear error, and its conclusions of

law are reviewed de novo. Wexler v. Anderson, 452 F.3d 1226, 1230 (11th Cir.

2006).

                                       V.      ANALYSIS

      We first address whether Defendant’s remedial actions have mooted

Plaintiff’s claim and then turn to the question of whether Plaintiff carried her

burden on the readily achievable analysis for the sole remaining barrier to ADA

compliance.




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   A. Mootness

      This court may only entertain “Cases and Controversies” pursuant to Article

III of the United States Constitution. See Sheely, 505 F.3d at 1183 (quoting

Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276,

1281–82 (11th Cir. 2004)). We have held “a case is moot when it no longer

presents a live controversy with respect to which the court can give meaningful

relief. If events that occur subsequent to the filing of a lawsuit . . . deprive the

court of the ability to give the plaintiff . . . meaningful relief, then the case is moot

and must be dismissed.” Id. This doctrine, however, does not end our inquiry. An

exception to the case at hand requires our attention: “The doctrine of voluntary

cessation provides an important exception to the general rule that a case is mooted

by the end of the offending behavior.” Id. (emphasis in the original) (quoting

Troiano, 382 F.3d at 1282). The Supreme Court has spoken to this issue:

             It is well settled that a defendant’s voluntary cessation of a
             challenged practice does not deprive a federal court of its power
             to determine the legality of the practice. If it did, the courts
             would be compelled to leave the defendant free to return to his
             old ways. In accordance with this principle, the standard we
             have announced for determining whether a case has been
             mooted by the defendant’s voluntary conduct is stringent: A
             case might become moot if the subsequent events made it
             absolutely clear that the allegedly wrongful behavior could not
             reasonably be expected to recur.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189,

120 S.Ct. 693 (2000) (internal marks, citations, and alterations omitted) (emphasis
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added) (cited by Sheely, 505 F.3d at 1183–84). The party asserting mootness

carries the “formidable” and “heavy burden” of persuasion when asserting its

conduct cannot reasonably be expected to recur. Sheely, 505 F.3d at 1184. In

assessing this standard, this Court looks to the following factors:

             (1) whether the challenged conduct was isolated or
             unintentional, as opposed to a continuing and deliberate
             practice; (2) whether the defendant’s cessation of the offending
             conduct was motivated by a genuine change of heart or timed to
             anticipate suit; and (3) whether, in ceasing the conduct, the
             defendant has acknowledged liability.

Id.

      After reviewing the record, including photographic evidence and the bench

trial transcript, we conclude Defendant remediated each of the ADA violations

noted by Plaintiff and her expert, Herrera—with the exception of the maneuverable

floor space in the bathroom—and thus rendered Plaintiff’s complaint as to these

noncompliant features moot. Defendant’s testimony, through its managing partner

Alsheikh, indicated that its ongoing violations of the ADA were unintentional and

erroneously founded on the belief that its Property was not in violation. Alsheikh

testified that the Property was inspected annually by the State for the purposes of

its lottery licensure, and Omega Gas had never been informed of its

noncompliance. Plaintiff did not put forth evidence of a malicious or reckless

disregard for the ADA or for any disabled customers. In fact, the testimony



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indicated Omega Gas had never before received a complaint that its Property was

noncompliant. Thus, the first factor weighs in favor of Defendant.

      The second prong involves Defendant’s motivation behind the remedial

changes to its Property. As we have stated before, “we are more likely to find that

cessation moots a case when cessation is motivated by a defendant’s genuine

change of heart rather than his desire to avoid liability.” Sheely, 505 F.3d at 1186.

The record clearly demonstrates Omega Gas immediately began correcting any

barriers or noncompliant features of its Property upon service of Plaintiff’s

complaint. Alsheikh testified that he obtained a copy of the ADA statute to

educate himself as to the requirements and personally performed or oversaw all of

the remedial work to ensure it was done correctly. Plaintiff’s expert stated he

observed work in progress when he visited the Property for his inspection, and

Plaintiff herself did not note any noncompliant features during her third visit to the

Property in September 2017, two months before the bench trial. Further,

Defendant instituted new policies and procedures for its employees and tenants to

follow regarding the monitoring of the handicap parking space and the proper

storage of equipment to ensure movable barriers, such as the mop bucket or

furniture, do not preclude access to or navigation around the Property. Contra

Sheely, 505 F.3d at 1186 (noting that defendant’s voluntary cessation occurred on

the eve of trial after months of discovery and mediation) (see also cases cited

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therein); see also Nat’l Alliance for Accessibility, Inc. v. Walgreen Co., No. 3:10–

CV–780–J–32–TEM, 2011 WL 5975809, at *3 (M.D. Fla, Nov. 28, 2011)

(“[f]ederal courts have dismissed ADA claims as moot when the alleged violations

have been remedied after the initial filing of a suit seeking injunctive relief”) (cases

cited therein).

      As to the third element, we conclude the Defendant acknowledged liability

by admitting that the Property was noncompliant and by actively working to

correct the noncompliant features. Plaintiff’s contention that Defendant never

acknowledged liability is not supported by the record. We conclude each factor of

the Sheely test weights in Defendant’s favor.

      Plaintiff further argues Defendant should be subject to an injunction

ensuring compliance with the ADA because the changes made are not permanent

in nature and thus can reasonably be expected to recur. We disagree. Defendant’s

changes are mostly structural, in that they concern fixed features of the Property

such as the sink, toilet, and grab bars. Unlike in Sheely, which involved a

discriminatory policy prohibiting the presence of service dogs at a radiology clinic,

the changes here are more permanent in nature. Compare Sheely, 505 F.3d at 1189

(finding the defendant could easily revert to a discriminatory policy and thus

holding the case was not moot), with Thomas v. Branch Banking and Trust Co., 32

F.Supp.3d 1266, 1271 (N.D. Ga. 2014) (finding that defendant’s likelihood of

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returning to discriminatory practice was highly unlikely based on the modification

of installed equipment and machinery). Alsheikh testified that he disposed of the

old, noncompliant fixtures, and we note it would be an unorthodox business

practice to spend thousands of dollars on purchasing and installing new fixtures

(e.g., the toilet, sink, paper towel dispenser, grab bars, signage, and hardware)

simply to rip them out and replace them with new, noncompliant fixtures. See

Thomas, 32 F.Supp.3d at 1271 (“Now that [BB&T] has spent time and money

making the offending ATMs compliant, it cannot be reasonably expected that

BB&T would undo that effort and spend additional time and money to

purposefully return its ATMs to a state of noncompliance.”); see also Kennedy v.

Nick Corcokius Enterprises, Inc., No. 9:15–CV–80642, 2015 WL 7253049, at *3

(S.D. Fla. Nov. 17, 2015). Thus, we conclude Defendant has effectively

remediated each of the ADA violations noted in Herrera’s expert report, with the

exception of the maneuverable floor space in the bathroom, and has thus deprived

this court of jurisdiction under the mootness doctrine.

   B. Readily Achievable

      With regard to the lack of maneuverable space in the bathroom, Plaintiff

contends Defendant failed to correct the issue, despite the fact that the bathroom

wall could have been moved approximate three inches to achieve ADA

compliance. Both parties agree that the Property constituted an “existing facility”

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rather than “new construction.” As this court has previously determined, “[t]he

ADA imposes different requirements on the owners and operators of facilities that

existed prior to [the ADA’s] enactment date [in 1993].” Gathright-Dietrich v.

Atlanta Landmarks, Inc., 452 F.3d 1269, 1273 (11th Cir 2006). In an existing

facility, “the ADA states that discrimination includes a private entity’s ‘failure to

remove architectural barriers . . . where such removal is readily achievable.’” Id.

(quoting 42 U.S.C. § 12192(b)(2)(A)(iv)). “Readily achievable” is defined under

the ADA as “easily accomplished and able to be carried out without much

difficulty or expense.” 42 U.S.C. § 12181(9). In establishing this standard,

Congress included a list of factors to consider when evaluating whether the barrier

removal is “readily achievable”:

             (1) nature and cost of the action; (2) overall financial resources
             of the facility or facilities involved; (3) number of persons
             employed at such facility; (4) effect on expenses and resources;
             (5) impact of such action upon the operation of the facility; (6)
             overall financial resources of the covered entity; (7) overall size
             of the business of the covered entity; (8) the number, type, and
             location of its facilities; (9) type of operation or operations of
             the covered entity, including composition, structure, and
             functions of the workforce of such entity; and (10) geographic
             separateness, administrative or fiscal relationship of the facility
             of facilities in question to the covered entity.


Gathright-Dietrich, 452 F.3d at 1273 (citing 42 U.S.C. § 12181(9)). In this action,

Plaintiff and Defendant disagree on the burden of production. Our case law,

however, clearly speaks to this issue. In Gathright-Dietrich, this court adopted the
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approach set out by the Tenth Circuit in Colorado Cross Disability Coalition v.

Hermanson Family Ltd. Partnership, 264 F.3d 999 (10th Cir. 2001). See

Gathright-Dietrich, 452 F.3d at 1273. As we announced in that seminal decision:

             Under this approach [as established in Colorado Cross], the
             plaintiff has the initial burden of production to show (1) that an
             architectural barrier exists; and (2) that the proposed method of
             architectural barrier removal is “readily achievable,” i.e.,
             “easily accomplishable and able to be carried out without much
             difficulty or expense” under the particular circumstances of the
             case. If the plaintiff meets this burden, the defendant then bears
             the ultimate burden of persuasion that barrier removal is not
             “readily achievable.”

Id. (internal citations omitted). The plaintiff’s initial burden is not light. Rather, “a

plaintiff must present sufficient evidence so that a defendant can evaluate the

proposed solution to a barrier, the difficulty of accomplishing it, the cost

implementation, and the economic operation of the facility. Without evidence on

these issues, a defendant cannot determine if it can meet is subsequent burden of

persuasion.” Id. at 1274.

      The facts considered and analysis conducted by the Gathright-Dietrich court

are illustrative to the facts presented in this case. In Gathright-Dietrich, disabled

persons sought alterations to The Fox Theatre, a historic theater and event space in

Atlanta, Georgia. 452 F.3d at 1271. The court concluded the plaintiffs “submitted

three proposed options relating to wheelchair seating, but they failed to produce

any reliable evidence that those proposals were ‘readily achievable.’” Id. at 1274.

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Moreover, the proposed modifications “were non-specific, conceptual proposals

that did not provide any detailed cost analysis,” and the plaintiffs “failed to provide

expert testimony to assure the feasibility of their proposed seating modifications

and did not, in any meaningful way, address the engineering and structural

concerns associated with their proposals[.]” Id. at 1274–75. Finally, the plaintiffs

did not “produce a financial expert to link the estimated costs of their proposals

with The Fox’s ability to pay for them” and also “failed to take even the

rudimentary steps of formulating what those estimated costs might be or providing

any evidence of The Fox’s financial position and ability to pay those costs.” Id. at

1275. The court readily concluded the plaintiffs fundamentally failed to carry their

initial burden that the proposed modifications were “readily achievable.” Id.

      The same can be said for this case. At trial, Plaintiff, through her expert,

presented evidence that moving the bathroom wall to provide the required

maneuverable space would cost an estimated $4,560. Herrera based this figure off

of his past experience and the work he has performed as a contractor, and this

estimate was described at trial as “a ballpark figure for moving a plumbing wall

and a partition wall, new flooring, new ceiling, that is it.” See R. 1253. During his

testimony, Herrera admitted that he did not conduct any analysis as to the structure

of the building, including the presence of plumbing, electrical, and gas lines or the

material of the wall. Id. at 1263. Further, Herrera admitted that his estimate was

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not specific to the Property but rather “an average based on other sites.” Id. He

further stated he failed to conduct a “readily achievable” analysis in preparing his

report. Id. at 1263–64. Furthermore, Plaintiff failed to present any evidence as to

Defendant’s ability to fund this remediation—much less the $80,000 plus estimates

Alsheikh received from contractors he contacted—or the effects that construction

would have on the business (i.e., requiring the business to cease operations while

gas, electrical, and plumbing lines were moved). In short, Plaintiff failed to carry

her burden of proof by failing to provide “sufficient evidence for [Defendant to]

evaluate the proposed solution,” by utilizing only a generalized, non-specific

proposal, and by failing to provide any semblance of a cost analysis.

                                  VI.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s judgment finding

Plaintiff’s claim for all the ADA violations—excepting the maneuverable floor

space in the bathroom—to be moot and ruling that Plaintiff failed to carry her

burden in proving that remediation of the bathroom floor space was “readily

achievable.”

AFFIRMED.




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JORDAN, Circuit Judge, concurring:

         I agree in full with the majority opinion, but note that, even Ms. Kennedy

met her initial burden of production on whether the bathroom modifications were

“readily achievable,” 42 U.S.C. § 12192(b)(2)(A)(iv), Omegagas & Oil likely met

its burden of persuasion on this issue. See generally Gathright-Dietrich v. Atlanta

Landmarks, 452 F.3d 1269, 1273 (11th Cir. 2006). Simply put, Ms. Kennedy’s

expert did not analyze what the costs of modification would be for the particular

bathroom in question, and the contractors who provided estimates to Omegagas &

Oil on the actual modification testified that the construction costs would be around

$80,000. In addition, Mr. Alsheihk testified that the gas station would have to

close for several days because the wall that had to be moved contained electrical

lines.




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