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Longhini v. Sembler

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

January 4, 2018

DOUG LONGHINI, Plaintiff,
v.
MELVIN F. SEMBLER, DOLLAR GENERAL CORPORATION, DOLGEN CORP, LLC and EVERSTEEN HOLDINGS LLC, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH JUDGE

         This cause comes before the Court on my review of Plaintiff's complaint (Doc. 1). The complaint is not pled in separate counts and seeks injunctive relief, a declaration of rights, attorneys' fees, litigation expenses, and costs pursuant to 42 U.S.C. § 12181, et seq. (the "Americans with Disabilities Act" or "ADA") against all Defendants jointly (Doc. 1). For the reasons set forth below, I respectfully recommend that Plaintiff be required to re-plead his claims in separate counts for each claim against each Defendant, as contemplated by Fed.R.Civ.P. 10(b).

         The Allegations of the Complaint

         According to his complaint, Plaintiff is an individual with disabilities. Defendant, Melvin Sembler (“the landlord”) owns and operates a shopping plaza, its general parking lot and parking spots specific to the businesses therein; Defendant, The Sembler Company, operates the plaza property; Defendants, Dollar General Corporation and Dolgencorp, LLC, own and operate a Dollar General retail store within the plaza (“the retail store”); and Defendant, Eversteen Holdings, LLC., owns and operates a restaurant within the plaza (“the restaurant”). (Id., ¶¶ 6, 8, 10, 12, 14, 20). Plaintiff alleges that he visits the plaza property, retail store and restaurant businesses regularly, and has encountered multiple violations of the ADA that directly affect his ability to use and enjoy the property, retail store and restaurant businesses (Id., ¶21). Plaintiff alleges:

32. Defendants have discriminated, and continue to discriminate, against Plaintiff in violation of the ADA by failing, inter alia, to have accessible facilities by January 26, 1992 (or January 26, 1993, if a Defendant has 10 or fewer employees and gross receipts of $500, 000 or less). A list of the violations that Plaintiff encountered during his visit to the plaza property, retail store and restaurant businesses, include but are not limited to, the following:
A. Parking
1. Plaintiff could not safely access the facility due to an inadequate number of compliant disabled use spaces. Accessible spaces and aisles are not part of a compliant accessible route, lack proper access aisles and have excessive slopes and level changes or obstructions on the path of travel to the stores violating ADAAG Section 4.6 and 2010 ADAS Section 502.
B. Entrance Access and Path of Travel
1. The path of travel contains excessive slopes in violation of Section 4.3.7 of the ADAAG and Section 403.3 of the 2010 ADA Standards, resolution is readily achievable.
2. The Plaintiff had difficulty traversing the path of travel due to abrupt changes in level greater than '12 inch, violating Section 4.3 of the ADAAG and 2010 ADAS Section 403, whose resolution is readily achievable.
3. Ramps at the facility that do not have compliant slopes and level landings where required by the ADAAG and 2010 ADAS, resolution is readily achievable.
4. Plaintiff had difficulty traversing the path of travel as it was not continuous and accessible. There is no accessible routes from the public sidewalks, bus stops to the buildings, violating ADAAG Section 4.3 and Section 206 of the 2010 ADAS.
C. Access to Goods and Services
1. There are protruding objects present throughout the facility, in violation of Section 4.4 of ADAAG and Section 307.2 of the 2010 ADA Standards, whose resolution is readily achievable.
2. The Plaintiff could not use the shopping areas and service counters as they are obstructed by stored goods. Counters at the facility exceed height limits with inaccessible shopping aisles violating ADAAG Sections 5 and 7 as well as 2010 ADA Standards Sections 226, 227, 902 and 904, resolution is readily achievable.
3. The facility fails to make reasonable accommodations in policies, practices and procedures to provide full and equal enjoyment of disabled individuals and does not maintain the elements that are required to be accessible and usable by persons with ...

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