A.L. v. Walt Disney Parks & Resorts US, Inc.

469 F.Supp.3d 1280

A.L., BY AND THROUGH D.L., as Next Friend, Parent and Natural Guardian, Plaintiff,

v.WALT DISNEY PARKS AND RESORTS US, INC., Defendant.

Case No: 6:14-cv-1544-Orl-22GJK

United States District Court, M.D. Florida, Orlando Division.

Signed June 22, 2020

Anthony Anderson Benton Dogali, Dogali Law Group, PA, Clearwater, FL, Domenick Giovanni Lazzara, Dom Law PA, Geoffrey E. Parmer, The Consumer Protection Firm, PLLC, Tampa, FL, Eugene Feldman, Pro Hac Vice, Arias, Sanguinetti, Stahle & Torrijos, LLP, Los Angeles, CA, for Plaintiff.

Julie McConnell, Jeremy Marc White, Pro Hac Vice, Lauren Hope Evans, Kerry Alan Scanlon, Pro Hac Vice, McDermott Will & Emery LLP, Washington, DC, Lisa Haidostian, Pro Hac Vice, McDermott Will & Emery LLP, Chicago, IL, Manuel Kushner, Manuel Kushner Law Firm, PLLC, Palm Beach, FL, Jon Michael Philipson, Thomas & LoCicero, PL, Tampa, FL, for Defendant.

MEMORANDUM DECISION AND ORDER

ANNE C. CONWAY, United States District Judge

A.L., through his mother, D.L.,¹ brings a claim against Defendant Walt Disney Parks and Resorts US, Inc. ("Disney") for its alleged failure to accommodate his disabilities, in violation of Title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12182(b)(2)(A)(ii).

A.L. seeks a permanent injunction requiring that he be permitted unlimited access to Disney's theme park attractions via Disney's expedited "FastPass" lines, or similar relief through at least ten "readmission passes,"² in order to accommodate his special needs: (1) to follow a particular, predetermined route and ride certain attractions in a specific order each time he visits;³ and (2) to predictably avoid wait times that exceed 15 to 20 minutes.

Disney's general position is that unlimited, near-immediate access to every ride at its parks, the proposed accommodation for A.L.’s autism, is not required by the ADA or necessary for the characteristics inherent in A.L.’s disability. Disney contends that offering near-immediate access to all guests who state they cannot wait in the standard queue would lead to the kind of abuse that existed under the former disability-accommodation system. It would also increase the wait times for the vast majority of other guests waiting in "standby lines" without the same type of expedited access. Moreover, Disney argues, the majority of rides have waits of less than 20 minutes, and for those with longer waits, the FastPass+ system allows guests, with planning, to make three reservations each day for premium rides. In addition, the current disability-access system allows guests such as A.L. who are cognitively disabled to wait virtually for the popular rides with longer wait times while enjoying other restaurants, stores, and attractions with no waiting in line.

Shortly after the parties filed their post-trial briefing in late March 2020, state and local authorities in Orange County, Florida instituted a stay-at-home order and Disney temporarily ceased park operations. With the stay-at-home orders lifting, on May 27, 2020, Disney announced plans to begin reopening the parks on July 11, 2020 with "significantly limited" capacity, reservations-only admission to the parks, all FastPass+ selections cancelled, and FastPasses suspended because Disney will use the space in the FastPass queue to "manage capacity at its attractions and keep the recommended physical distancing between parties"; these changes are in effect until the end of 2020.⁴ These changes deal with social distancing to avoid the spread of Covid-19, and are considered to be "temporary changes" until the Covid-19 pandemic is contained (and at least until the end of 2020). Neither party has raised mootness as an issue. The Court considers this case is an exception to the mootness doctrine akin to the type of case that is "capable of repetition, yet evading review." See Lewis v. Continental Bank Corp ., 494 U.S. 472, 481, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). As soon as the need for social distancing is reduced, and the FastPass lines re-open, A.L.’s request for injunctive relief would be revived, since he intends to return to all of the Disney parks if he receives the accommodations sought.

A.L. and Disney tried this case to the Court from February 18 to 21, 2020. After carefully considering the evidence and the parties’ arguments, and keeping in mind the guidance of the Eleventh Circuit's decision in remanding the case for trial,⁵ the Court now issues the following decision:

I. FINDINGS OF FACT

A. Plaintiff A.L. and his mother D.L.

Plaintiff A.L. is a twenty-seven-year old individual with autism,⁶ a developmental disorder and diagnosed cognitive impairment; his developmental age is five to seven years old. He is generally in the care of his mother D.L., and they reside in Orange County, Florida, with other family members.

A.L. has an extremely limited ability to communicate, and he does not engage in two-way conversations, primarily using one-word utterances, even if in pain. A.L. cannot provide meals or clothing for himself, or reliably take care of his hygiene. A.L. can read the numbers on a clock, but he cannot tell time because he does not understand what the numbers mean or that they refer to a particular time of day. He also does not understand references to days of the week or increments of time. However, he does comprehend that "tomorrow" means a different time in the future.

A.L. is substantially limited in his ability to care for himself, perform manual tasks, speak, read with comprehension, communicate, and work. Through A.L.’s entire childhood he had an Individual Education Plan at school, as required under the Individuals with Disabilities Education Act,⁷ and the school district provided A.L. with accommodations including: an assistant with a behavioral therapy background; entering and exiting the classroom early to avoid waiting; and additional time for test-taking and homework.

A.L. eats the exact same foods each day for breakfast, lunch, dinner, and snack, and if offered other food he will refuse it; he eats at precisely the same time every day without exception; he is given thirty minutes of cell phone time between 9:30 and 10:00 p.m., and once the time runs out, he knows it is time to go to sleep. "Routine is instrumental in keeping [him] grounded," thus, D.L. "manipulates the environment in order for him to get to a point where he is a participating member of society." When A.L.’s routines are disrupted he becomes anxious, gets louder with audible noises, and shakes a red tube that he holds in his hand (a common autistic response called "stimming"), which is a way for him to self-calm and exercise self-control; if he increases the amount of shaking of the tube that indicates to D.L. that she should take steps to de-escalate his anxiety by removing him from the stimulating situation. If A.L. becomes overwhelmed his behavior leads to "meltdowns" which consist of outbursts and dropping to the floor, becoming non-responsive, and D.L. will have to wait out his behavior.⁸

A.L. can successfully wait 15 or 20 minutes in a line as "a baseline." A.L. has gone on family vacations "a lot," including 21 cruises, and car rides as long as seven hours (with breaks). Because A.L. is a big fan of music and singing, he has attended Broadway shows for up to three hours, and his sister's recent law school graduation. A.L. sat in the courtroom during the first day of this trial and stood up and responded "Hello" when greeted by the Court but had no further interaction and was not called to testify at trial. A.L. was not present for the entire trial as he was able to leave the courtroom with an adult when he wanted to leave, but he was present for hourlong stretches of the trial at times.

A.L.’s mother, D.L., is employed full-time as a government investigator. D.L. currently serves as president and CEO of a non-profit organization regarding autism called the Autism Society of Greater Orlando ("ASGO"), which she has been involved with since 1996. D.L. runs the adult social skills program for ASGO to help autistic adults integrate into the community by working on social and other skills. D.L. has also served as an "autism awareness" trainer for law enforcement officers and first responders in Florida and Georgia for ten years. D.L. has provided autism awareness training to the Universal Orlando Resort employees for three years and has previously given an autism awareness training to Disney employees.

B. Findings Regarding A.L.’s Behavioral Issues Related to Autism

Due to A.L.’s autism, he has received Applied Behavior Analysis ("ABA") behavioral support services since the time he was four years old. The behavioral support services are designed to modify and reduce his "maladaptive behaviors," i.e. , the strategies are designed to replace the behaviors with more appropriate ones through interventions, task analysis, preplanning, and modeling such as showing pictures or videos before visiting somewhere to know what to expect after arriving. As a child, when denied access to a preferred food or amounts of food, A.L. would engage in loud vocals and often aggression, but over time he significantly improved in tolerating denial of access to a preferred item or activity. As an example, A.L. worked very hard over the years and reduced his maladaptive behaviors from 96 aggressions per hour to one or two per month. As part of the ABA therapy, D.L. also worked with A.L. to improve other maladaptive behaviors such as his insistence on sameness or "rigidity"; resistance to changes in routine; and "tolerating wait" for items that are not available immediately. In 2008, A.L.’s target wait time was to tolerate wait of 30 seconds; however, through ABA therapy over the years, he expanded his ability to wait to 15 to 20 minutes at his present age of 27 (at trial). D.L. believes that "wait time is always going to be an issue" for A.L.

Johanna McDonald, a Board-Certified Behavioral Analyst,⁹ runs an agency which has...