United States District Court, S.D. Florida
L. Rosenberg, United States District Judge
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.
Court first summarizes the background facts before
delineating the specific factual findings of the Court.
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.
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.
Patricia Kennedy for the Plaintiff
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.
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.
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.
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.
Deposition of Walid Alsheikh for the
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. 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.
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.
Walid Alsheikh for the Defendant
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.
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.
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 ...