Court Denies Town’s Request to Dismiss ADA Lawsuit

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U.S District Court Judge Sheri Chappel did not mince words when she denied the town’s request to dismiss Eddie Rood’s Americans With Disabilities Act lawsuit. Rood claims part of the reason he needs the dune walkover from his backyard to the beach is to accommodate his wheelchair. Chappel shot down every argument the town made.

For 5 years Rood has been fighting with the town to construct a walkover from his house to the beach behind his home on Estero Boulevard. Rood and his neighbor Kurt Kroemer say, over time the beach landscape behind their homes has changed due to the weather and a growing critical wildlife area. They say they’ve lost the access to the beach they once had when they purchased their homes.

After receiving the permits from the state, the remaining obstacle was a special exception from the town. The town council refuses to grant the special exception which has resulted in a legal battle. Rood alleges the Town discriminated against him by failing to provide him with a reasonable accommodation.

Earlier this month Fort Myers Beach Town Attorney John Herin told the Local Planning Agency that the Americans with Disabilities Act lawsuit Rood filed was dismissed by the court. Rood responded by saying that Herin was not being truthful with the LPA, that his original filing was purposefully vague so he could see the town’s response and re-file, which he did.

That brings us to Chappel’s decision in Rood’s favor.

In its motion to dismiss, the town acknowledged that Rood is a qualified individual with a disability. But it argued that Rood never requested a specific ADA accommodation. That was the first point Chappel shot down.

The judge stated Rood sufficiently stated his need for the wheelchair accommodation. She noted that attached to Rood’s application was an excerpt from the State of Florida Department of Environmental Protection’s final order on his environment permits that described the walkover as an accommodation: “The dune walkover is proposed as a 1,491.50 square-foot . . . piling supported wooden walkway five feet in width. Its original six-foot width was reduced to five feet, which remains adequate to accommodate the anticipated need for the use of a wheelchair or mobility device by one of the Applicants. The steps at the waterward end of the proposed dune walkover were replaced with ramps, also for use by a wheelchair or similar device.”

Chappel also said the town’s argument that the walkover is “not even a reasonable accommodation” fares no better and she rejected it.

And on the town’s last point, that Rood’s claim for declaratory relief is an insufficient, formulaic recitation of the elements. She says the town did not point to any cases, nor could the Court locate any, that support this argument. Rejected.

Chappel denied the motion to dismiss and gave the town until May 12th to respond. Read the entire ruling HERE.

 

3 COMMENTS

  1. As previously stated, the Town has spent over 500,000 dollars fighting this walkover. The current Town council needs to agree to settle this before the Town spends another 500,000 and still looses and this guy gets the walkover. As the Mayor stated, the money could be used for other worthwhile projects that are much needed. This could end up being a very embarrassing situation for the current council.

  2. Your story says it all…”weather changed the beach and GREW a CWA”. So how is the CWA so critical that it was never there before?

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