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DEFENDANT’S , $1 ON COUNTERCLAIM Disability Discrimination – Alleged violation of Americans With Disabilities Act – Claimed failure to provide handicapped access to restroom in St. Petersburg restaurant.

U.S. District Court, Middle, Florida

This discrimination action was brought under the Americans With Disabilities Act (“ADA”) by Access for the Disabled Inc. and a disabled individual who was wheelchair-bound. The plaintiffs claimed that the defendant violated the act by failing to provide handicapped access to the restroom in its Subway restaurant. The defendant argued that it did not violate the ADA, because it provided reasonable access to its services to the maximum extent feasible. The defendant also asserted a counterclaim for trespass.

The plaintiff complained that the defendant’s restroom was not updated to the newest ADA guidelines at the time of her visit in November, ________. She alleged that the lack of access to the restroom constituted discrimination against handicapped individuals in violation of the ADA.

The defendant argued that ADA is not so stringent as to require immediate changes as the law evolves. Rather, the ADA allows for architectural modifications to be incorporated into buildings as they undergo their own structural changes, this is also known as a triggering event, according to the defense.

Thus, the defendant – who had not made any structural changes to the building as of November ________ – contended that it was not required to make architectural modifications to the building under the ADA’s readily achievable standard. Instead, the defendant argued that it was required by law to provide reasonable access to its services to the maximum extent feasible, which it did.

On the counterclaim for trespass, the defendant showed that the plaintiff had previously brought a similar lawsuit against the defendant. The defense claimed that the plaintiff visited the restaurant in November ________ (the eve of trial in the first lawsuit) for the sole purpose of instituting a second lawsuit against the defendant. The defense argued that the plaintiff traveled more than 20 miles from Tampa to St. Petersburg (passing several other Subway restaurants) to visit the defendant, and also traveled with her expert witness who carried a tape measure and a camera. Since every visit to a public restaurant is allowed under an implied license and no restaurant provides an implied license to be sued, the defense contended that the plaintiff’s purpose for her visit constituted a trespass.The jury found that the defendant did not discriminate against the individual plaintiff. The jury also determined that the plaintiff was a trespasser on the premises and awarded the defendant $1 in damages on the counterclaim. The plaintiff’s renewed motion for judgment as a matter of law is currently pending.

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