United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE.
cause comes before the Court for consideration without oral
argument on the following motion:
PLAINTIFF'S MOTION FOR ENTRY OF
JUDGMENT AFTER DEFAULT AND VERIFIED APPLICATION FOR
ATTORNEY FEES, COSTS, EXPERT FEES AND LITIGATION
EXPENSES (Doc. 12)
February 13, 2018
THEREON it is
RECOMMENDED that the motion be
DENIED without prejudice.
Kennedy (Plaintiff) filed this action against Bindi, Inc.
(Defendant), alleging that Defendant is in violation of Title
III of the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12182, et seq. Doc. 1.
is a mobility-impaired ADA “tester” - someone who
visits places of public accommodation for the purpose of
verifying compliance with the ADA - from Broward County,
Florida. Id. at ¶¶ 1, 9. Defendant
“owns, leases, leases to, or operates” P & K
Food Store (P & K), “a place of public
accommodation as defined by the ADA, ” which is located
at 3350 South Park Avenue, Titusville, Florida 32780.
Id. at ¶ 2.
does not allege when she visited P & K, see.
id. at ¶ 8,  but, nevertheless, alleged that
“[a] preliminary inspection of P & K Food Store
showed that [the following] violations exist[:]”
i. Defendant fails to adhere to a policy, practice and
procedure to ensure that all goods, services and facilities
are readily accessible to and usable by the disabled.
ii. Defendant fails to maintain its features to ensure that
they are readily accessible and usable by the disabled.
iii. There is an insufficient number of compliant disabled
parking spaces and access aisles, with missing access isles,
lack of compliant signage and missing disabled parking
iv. There is a lack of compliant accessible route connecting
the disabled parking spaces with all the goods, services and
facilities of the property with excessive slopes,
non-compliant curb approaches, non-compliant ramps, abrupt
changes in level, uneven ground surfaces, hazards on ground
surfaces, and broken or cracked pavement/concrete.
v. There are non-compliant restrooms with non-compliant
doorways, improper door hardware, lack of required clear
floor space, insufficient maneuvering space, inaccessible
commodes, lack of complaint grab bars, missing rear and side
grab bars, flush controls on the wrong side, inaccessible
sinks, improper sink hardware, unwrapped piping, poorly
wrapped piping or piping falling [off], obstructions, and
improperly located amenities.
Id. at ¶ 7. Plaintiff alleged that she
“plans to return to the property to avail herself of
the goods and services offered to the public at the property,
and to determine whether the property has been made ADA
complaint, ” id. at ¶ 8, but she provided
no further details about when she plans on returning to the
property, see Docs. 1; 12.
claims that she has and will continue to suffer “direct
and indirect injury” as a result of Defendant's
discrimination until Defendant is compelled to modify its
property to comply with the ADA's requirements. Doc. 1 at
¶ 13. Thus, Plaintiff seeks a declaration that Defendant
is in violation of Title III of the ADA. Id. at 7.
Further, Plaintiff requests that the Court: 1) grant
injunctive relief against Defendant requiring it to: a)
“make all readily achievable alterations to the
[property, ]” b) “make [the property] readily
accessible to and usable by individuals with disabilities to
the extent required by the ADA[, ]” and c) “make
reasonable modifications in policies, practices or
procedures, when such modifications are necessary to afford
all offered goods, services, facilities, privileges,
advantages or accommodations to individuals with
disabilities[;]” 2) grant an award of attorney fees,
costs, and litigations expenses; and 3) grant all other
remedies the Court deems just and proper. Id. at