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Kendrick E. Duldulao v. La Creperia Cafe

December 29, 2011

KENDRICK E. DULDULAO, PLAINTIFF,
v.
LA CREPERIA CAFE, INC., A FLORIDA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Steven D. Merryday United States District Judge

ORDER

The plaintiff sues (Doc. 1) for discrimination under Title III of the Americans with Disabilities Act, ("ADA") 42 U.S.C. § 12181, et seq. The defendant (1) moves (Doc. 5) under Rule 12(b)(6), Federal Rules of Civil Procedure, to dismiss for failure to state a claim, (2) moves (Doc. 5) under Rule 12(e) for a more definite statement, and (3) moves (Doc. 14) under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction.

Discussion

The plaintiff, Kendrick E. Duldulao, uses a "wheelchair for mobility." (Doc. 1, ¶ 3) The defendant, La Creperia Cafe, is a small Ybor City bistro and espresso bar. In just over two years, the plaintiff has sued for discrimination sixty-eight local businesses, including restaurants, hotels, retailers, and gentlemen's clubs.*fn1

The complaint alleges twelve violations of the ADA Accessibility Guidelines, 28 C.F.R. Part 36:

(i) Failure to provide securely attached mat at the entrance of the Subject Facility, in violation of 28 C.F.R. Part 36, Section 4.5.3.

(ii) The service counter, and stools, in the Subject Facility is higher than 34 inches above the finish floor in violation of the requirements of 28 C.F.R. Part 36, Section 5.2. which requires a maximum height of the counter, or a 60 inch wide section of it, to be 34 inches maximum height.

(iii) Failure to provide accessible door hardware in the restroom that can be opened with a closed fist in violation of 28 C.F.R. Part 36. Section 4.23.9.

(iv) Failure to completely and properly insulate exposed hot water and abrasive drain pipes under restroom lavatories to prevent burns and scrapes as required by 28 C.F.R. Part 36, Section 4.19.4.

(v) Failure to provide the required underside clearance under restroom lavatory for accessibility due to garbage can blocking access to said underside of lavatory, in violation of 28 C.F.R. Part 36.

(vi) Failure to provide accessible restroom toilet flushing controls in violation of 28 C.F.R. Part 36.

(vii) Failure to install an accessible restroom mirror in compliance with 28 C.F.R. Part 36, Section 4.19.6.

(viii) Failure to provide a restroom paper towel dispenser at an accessible height as required by 28 C.F.R. Part 36, Section 4.22.7.

(ix) Failure to provide a restroom toilet paper dispenser at an accessible height as required by 28 ...


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