Opinion
Case No. 04-22543 CIV-KING/O'Sullivan.
August 31, 2005
William N. Charouhis Assoc., LLP, Miami, FL, Att'y for Plaintiff.
Matt Weinstein, Miami, Florida, Attorney for Defendant.
ORDER APPROVING SETTLEMENT; FINDINGS OF FACT; AND FINAL JUDGMENT
THIS CAUSE having come before the Court on the 22d day of August, 2005, on Plaintiff, Steven Brother's Amended Complaint for injunctive relief under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq., (the ADA) and upon notice that the parties have settled all matters at issue and have entered in to the agreement described below, the Court:
FINDS:
1. Plaintiff Disability Advocates And Counseling Group, Inc., having dismissed its claims with prejudice and Plaintiff Steven Brother, having withdrawn Counts II and III pursuant to a stipulation of February 7, 2005; the sole remaining claim before the Court is the claim of Steven Brother in Count I of the Amended Complaint, which is a claim for statutory relief under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
2. That Defendant, Bernice Newton Gould Trust, owns and operates a shopping center generally known as 97th Plaza located at 9702-9738 Southwest 40th St., Miami, Florida; the public areas and certain of the leased premises of which are public accommodations and therefore Defendant is required to ensure that persons with disabilities under Title III of the ADA are not discriminated against in their access to the facility and the goods and services offered therein.
3. The shopping center was constructed in 1965 and was acquired by Defendant in 1983, prior to the effective date of the ADA, and therefore its owners, managers or lessors are required to remove barriers of an architectural nature to access or communication by the disabled to the extent such removal is readily achievable.
4. The sole relief that may be had by a private plaintiff under Title III of the ADA is for injunctive relief to compel compliance with the Act and, if the plaintiff prevails, for its attorney fees and litigation expenses. 42 U.S.C § 2205.
5. The parties have entered into an agreement whereby the Defendant shall pay to the Plaintiff the sum of $3,000.00 in full settlement of all claims for attorney fees and litigation expenses; and upon receipt thereof, the Plaintiff shall dismiss its remaining claims herein;
6. Upon inquiry of the parties the Court finds that since the institution of this action, the owner of the shopping center has made substantial changes to remove barriers to Plaintiffs access to the center and the facilities patronized by Plaintiff, including the addition of three accessible parking spaces, and removal of barriers to the accessible pathways to the center from the accessible parking spaces and the public right of way; removal of door entry barriers to the center's shops, provision of an accessible restroom for use by all tenants of center, including those of the cafeteria; removal of barriers to the accessible restroom; installation of signage required directing the disabled to assistance and the accessible restroom; and has modified its tenant leases and instituted policies to assure access thereto by persons with disabilities as required by Title III of the ADA and the regulations issued thereunder; and having done so, the court finds that the subject property is presently in substantial compliance with the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and that therefore no meaningful injunctive relief may be awarded; it is therefore
ORDERED and ADJUDGED that the above stated settlement agreement of the parties is approved and this cause is hereby dismissed with prejudice.
ORDERED, ADJUDGED and DECREED.