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Kennedy v. Bindi, Inc.

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

April 26, 2018

PATRICIA KENNEDY, Plaintiff,
v.
BINDI, INC., Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE.

         This cause comes before the Court for consideration without oral argument on the following motion:

MOTION:

PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AFTER DEFAULT AND VERIFIED APPLICATION FOR ATTORNEY FEES, COSTS, EXPERT FEES AND LITIGATION EXPENSES (Doc. 12)

FILED:

February 13, 2018

THEREON it is RECOMMENDED that the motion be DENIED without prejudice.

         I. BACKGROUND

         A. The Complaint

         Patricia 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.

         Plaintiff 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.

         Plaintiff does not allege when she visited P & K, see. id. at ¶ 8, [1] 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 signage.
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.

         Plaintiff 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 7-8.

         B. ...


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