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Kennedy v. Omegagas & Oil LLC

United States District Court, S.D. Florida

January 3, 2018

PATRICIA KENNEDY, Plaintiff,
v.
OMEGAGAS & OIL LLC, a Florida limited liability company, Defendant.

          MEMORANDUM OPINION

          Robin L. Rosenberg, United States District Judge

         THIS CAUSE is before the Court following the non-jury trial held on October 20, 2017. This case arises from Plaintiff Patricia Kennedy's January 14, 2017 visit to Defendant Omegagas & Oil LLC's gas station at 1974 South Congress Avenue, West Palm Beach, FL. During her visit, Ms. Kennedy, who is in a wheelchair, alleges that she was denied the full and equal enjoyment of the gas station because of violations of the American Disabilities Act (“ADA”) throughout the store. The Defendant responds that this case is largely moot because the ADA violations have been remedied and that remedying the one violation that remains-insufficient maneuvering space in the bathroom-is not readily achievable. See DE 67-1, Pre-Trial Stipulation, at 2.

         I. INTRODUCTION

         The Court first summarizes the background facts before delineating the specific factual findings of the Court.

         A. The Parties

         Ms. Kennedy is a disabled individual who lives in Tamarac, FL. Trial Tran. 7:11-23. She is generally confined to a wheelchair. Id. at 7:13-8:4. Omegagas & Oil is the company that owns the gas station at 1974 South Congress Avenue and Mr. Walid Alsheikh is the managing member of Omegagas & Oil. Id. at 98:14-20.

         B. The Trial

         1. Undisputed Facts

         It is undisputed that Ms. Kennedy is a person with a disability and that Defendant owns and operates the gas station at 1979 South Congress Avenue. DE 67-1, Pre-Trial Stipulation, at 5. It is also undisputed that the gas station is a place of public accommodation and that, at the commencement of this lawsuit, some aspects of the Defendant's property did not comply with the ADA. Id.

         2. Lay Testimony

         a. Patricia Kennedy for the Plaintiff

         Ms. Kennedy testified that she is in a wheelchair due to her “c5-6 incomplete” disability. Trial Tran. at 7:13-17. Ms. Kennedy's disability gives her limited use of her right side; although she can walk a few steps if she is holding on to something, she is generally confined to a wheelchair. Id. at 7:20-8:4. Ms. Kennedy is familiar with the Americans with Disabilities Act and has been involved in ADA advocacy for approximately twenty years. Id. at 8:5-14. Ms. Kennedy is often in Palm Beach County as she frequently travels around Florida. Id. at 18-20.

         On January 14, 2017, Ms. Kennedy visited the gas station at 1974 South Congress Avenue. Id. at 8:24-9:20. On her visit to the store, Ms. Kennedy noted that the handicap parking space was faded, id. at 11:4-10, and that the handicap parking sign was faded and blocked from sight, id. at 12:12-18. See Pl.'s Ex. 3 & 4. She also noted that there were obstructions, including a dumpster and boxes, in the access aisle next to the parking space; Ms. Kennedy needs the access aisle to be clear so that she can get in and out of her van using its lift. Trial Tran. at 11:4- 13.

         Ms. Kennedy testified about her observations of the ADA violations in the bathroom at the gas station. She could not enter the bathroom in her wheelchair but looked inside. Id. at 33:6- 10. There was a mop bucket in the bathroom, which could prevent her from getting close enough to the toilet to transfer from her wheelchair. Id. at 16:12-17:8; Pl.'s Ex. 12. The bathroom also had a pedestal sink which could prevent her from getting close enough to the sink without her feet running into the pedestal. Trial Tran. at 17:20-24; Pl.'s Ex. 13. The sink also had knobs that required a grip which she could not turn even if she could have gotten close enough to the sink. Trial Tran. at 18:2-5; Pl.'s Ex. 17. The toilet had its flush control on the inside of the toilet, next to the wall. Trial Tran. at 19:13-15; Pl.'s Ex. 7. The toilet did not have a rear grab bar, Trial Tran. at 19:13-15; Pl.'s Ex. 7, and the side grab bar was too short, only 37 inches, Trial Tran. at 20:5-7. Pl.'s Ex. 18. The door to the bathroom had a doorknob that required the ability to grip to be able to open. Trial Tran. at 20:13-21:1; Pl.'s Ex. 9. The paper towel dispenser in the bathroom was too high for Ms. Kennedy to be able to reach. Trial Tran. at 21:19-24; Pl.'s Ex. 16.

         Ms. Kennedy visited the gas station for a second time on July 18, 2017, which was after this lawsuit was filed. Trial Tran. at 23:23-24:3; Pl.'s Ex. 34. During her return visit, Ms. Kennedy again noticed ADA violations at the gas station. The lines designating the handicap parking space were faded, the access aisle was not clearly marked, and there was a chair in the access aisle. Trial Tran. at 25:1-15; Pl.'s Ex. 33.

         b. Deposition of Walid Alsheikh for the Plaintiff

         During his May 30, 2017 deposition, Mr. Alsheikh testified that he is the owner and manager of the gas station at 1974 South Congress Avenue, which he acquired in 2002. DE 86 at 6:23-7:9.[1] The gas station has two tenants: an auto repair shop, Best Brakes, and a tire shop, Guajiro Tires. Id. at 12:6-15. Mr. Alsheikh testified that he did not perform any due diligence prior to acquiring the property. Id. at 15:15-19. With the exception of replacing existing fuel tanks, Mr. Alsheikh has not made any improvements to the property since he bought it. Id. at 17:1-13.

         Mr. Alsheikh testified that he made some changes to the property when the lawsuit was filed and he found out that his store was not in compliance. Id. at 17:23-18:7. He did not, however, hire an ADA expert to ensure that the changes he was making were in compliance with the ADA. Id. at 20:6-9. Mr. Alsheikh installed new grab bars because one was missing and because the other one was not the right length. Id. at 26:6-24. He replaced the faucet handle because he found out that his old faucet handle was not in compliance with the ADA according to the report he received as part of the lawsuit. Id. at 28:2-9. He replaced the toilet because the handle was on the wrong side, id. at 29:8-13, and installed a new door handle, id. at 30:29:25-2, 25:6-10. He also installed a new handicap sign for the bathroom, id. at 30:18-25, and for the parking space, id. at 31:8-14. Mr. Alsheikh installed a new paper towel dispenser, id. at 32:11- 16, 33:15-17, and installed a new sink, id. at 34:5-14. He did not do anything to change the size of the bathroom. Id. at 41:15-17.

         c. Walid Alsheikh for the Defendant

         Mr. Alsheikh testified that he the managing member of the gas station. Trial Tran. at 98:15-17. He has a bachelor's degree from the University of Jordan in Amman, Jordan and an MBA from the University of New Mexico. Id. at 99:23-100:7. Mr. Alsheikh runs the day-to-day operation of the gas station, id. at 98:19-20, and has authority to make and enforce policies and procedures at the gas station, id. at 99:10-12. There are two tenants at the gas station, a tire shop and an auto repair shop. Id. at 99:14-15. Mr. Alsheikh could terminate the leases at any time with notice. Id. at 99:19-22.

         Prior to this lawsuit, Mr. Alsheikh thought that the property was in compliance with the ADA because he has owned the property for 15 years and has never received any complaints; the gas station also gets inspected annually by the State of Florida as part of its license for the lottery and Mr. Alsheikh had never been informed that the property was not in compliance. Id. at 101:24-102:10.

         After receiving the Complaint, Mr. Alsheikh obtained a copy of the ADA statute and began fixing what he could. Id. at 102:18-21. He did some of the work himself and hired a handyman and ...


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