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Kennedy v. Gulf Gate Plaza, LLC

United States District Court, M.D. Florida, Fort Myers Division

May 31, 2017

PATRICIA KENNEDY, individually, Plaintiff,
v.
GULF GATE PLAZA, LLC, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on review of defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. #22) filed on March 13, 2017. Plaintiff filed a Response in Opposition (Doc. #23) on March 27, 2017. For the reasons set forth herein, the motion is denied.

         I.

         On October 13, 2016, plaintiff Patricia Kennedy (plaintiff or Kennedy) brought this action against Gulf Gate Plaza, LLC (defendant). (Doc. #1.) The Amended Complaint, the operative pleading before the Court, alleges defendant violated Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. (Doc. #18.)

         Plaintiff is a resident of Broward County, Florida, and brings her claims individually and as a “tester” to ensure compliance with the ADA. (Id. ¶¶ 1, 8, 9.) Plaintiff alleges that she qualifies as a disabled individual under the ADA because she is wheelchair bound with limited use of her hands. (Id. ¶ 1.) Defendant owns, leases, leases to, or operates property located in Collier County, Florida that is open to the public (Gulf Gate Plaza). (Id. ¶ 2.) Plaintiff alleges that upon visiting Gulf Gate Plaza, she encountered barriers which limited or denied her access to goods and services offered by the businesses located at Gulf Gate Plaza, and that her access will continue to be limited or denied until Gulf Gate Plaza becomes ADA compliant. (Id. ¶¶ 7-8.) Specifically, plaintiff alleges that the following violations exist at Gulf Gate Plaza:

         Parking area:

a. The access aisle adjacent to Big Lots has excessive slopes and cross slopes.
b. The access aisle adjacent to Salon Centric has excessive slopes and cross slopes.
c. The disabled space adjacent to SPC Cleaners has excessive slopes and cross slopes.
d. The disabled parking space adjacent to Metro Nails has excessive slopes and cross slopes.
e. The right access aisle adjacent to Family Dollar has excessive slopes and cross slopes.
f. The right access aisle adjacent to Big Lots has excessive slopes and cross slopes.
g. The handicapped sign in front of Subway lacks the required verb[i]age.
h. There is an insufficient number of compliant parking spaces.

         Monterey Tortilleria & Panaderia:

a. The unisex restroom lacks compliant door ...

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