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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
HOWARD COHAN, CASE NO.:
Plaintiff,
vs. INJUNCTIVE RELIEF SOUGHT
FIRST FM, LLC, d/b/a
HAMPTON INN & SUITES
CHICAGO-DOWNTOWN,
Defendant,
_________________________/
COMPLAINT
Plaintiff, HOWARD COHAN (“Plaintiff”), by and thro ugh the undersigned counsel,
hereby files this Complaint and sues FIRST FM, LLC, d/b/a HAMPTON INN & SUITES
CHICAGO-DOWNTOWN, (“Defendant”), for declaratory an d injunctive relief, attorney’s fees,
expenses and costs (including, but not limited to, court costs and expert fees) pursuant to 42
U.S.C. § 12182 et. seq., and the 2010 Americans wit h Disabilities Act (“ADA”) and alleges as
follows:
JURISDICTION AND VENUE
1. This Court is vested with original jurisdiction ove r this action pursuant to 28
U.S.C. §§ 1331, 343 for Plaintiff’s claims arising under Title 42 U.S.C. § 12182 et. seq., based
on Defendant’s violations of Title III of the ADA. See also, 28 U.S.C. §§ 2201, 2202, as well as
the 2010 ADA Standards.
2. Venue is proper in this Court, Northern Distric t of Illinois, Eastern Division,
pursuant to 28 U.S.C. §1391(B) and the Internal Ope rating Procedures for the United States Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 1 of 10 PageID #:1
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District Court for the Northern District of Illinoi s in that all events giving rise to the lawsuit
occurred in Cook County, Illinois.
PARTIES
3. Plaintiff, HOWARD COHAN is sui juris and is a resident of the State of Florida
residing in Palm Beach County, Florida.
4. Upon information and belief, Defendant is the l essee, operator, owner and/or
lessor of the Real Property, which is subject to th is suit, and is located at 33 W. Illinois St.,
Chicago, IL 60654 (“Premises”) and is the owner of the improvements where Premises is
located.
5. Defendant is authorized to conduct, and is in f act conducting, business within the
state of Illinois.
6. Plaintiff is an individual with numerous disabi lities including severe spinal
stenosis of the lumbar spine with spondylolisthesis ; severe spinal stenosis of the cervical spine
with nerve root compromise on the right side; a non -union fracture of the left acromion
(shoulder); a labral tear of the left shoulder; a f ull thickness tear of the right rotator cuff; a rig ht
knee medial meniscal tear; a repaired ACL and bilat eral meniscal tear of the left knee; and severe
basal joint arthritis of the left thumb. The above listed permanent disabilities and symptoms
cause sudden onsets of severe pain and substantiall y limit Plaintiff’s major life activities. At the
time of Plaintiff’s visit to the Premises on Septem ber 24, 2018, (and prior to instituting this
action), Plaintiff suffered from a “qualified disab ility” under the ADA, and required the use of
bathroom facilities, a continuous path of travel co nnecting all essential elements of the facility
and the use of other means of accessibility for per sons with disabilities. Plaintiff personally
visited the Premises, but was denied full and equal access and full and equal enjoyment of the Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 2 of 10 PageID #:2
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facilities, services, goods, and amenities within t he Premises, even though he would be classified
as a “bona fide patron”.
7. Plaintiff will avail himself of the services of fered at the Premises in the future,
provided that Defendant modifies the Premises or mo difies the policies and practices to
accommodate individuals who have physical disabilit ies.
8. Completely independent of the personal desire t o have access to this place of
public accommodation free of illegal barriers to ac cess, Plaintiff also acts as a “tester” for the
purpose of discovering, encountering and engaging d iscrimination against the disabled in public
accommodations. When acting as a “tester”, Plainti ff employs a routine practice. Plaintiff
personally visits the public accommodation; engages all of the barriers to access, or at least of
those that Plaintiff is able to access; tests all o f those barriers to access to determine whether and
the extent to which they are illegal barriers to ac cess; proceeds with legal action to enjoin such
discrimination; and subsequently returns to Premise s to verify its compliance or non-compliance
with the ADA and to otherwise use the public accomm odation as members of the able-bodied
community are able to do. Independent of other sub sequent visits, Plaintiff also intends to visit
the Premises regularly to verify its compliance or non-compliance with the ADA, and its
maintenance of the accessible features of Premises. In this instance, Plaintiff, in Plaintiff’s
individual capacity and as a “tester”, visited Prem ises, encountered barriers to access at
Premises, and engaged and tested those barriers, su ffered legal harm and legal injury, and will
continue to suffer such harm and injury as a result of the illegal barriers to access and the ADA
violations set forth herein. It is Plaintiff’s bel ief that said violations will not be corrected with out
Court intervention, and thus Plaintiff will suffer legal harm and injury in the near future.
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VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT
9. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1 through 8
above as if fully stated herein.
10. On July 26, 1990, Congress enacted the Americans With Disabilities Act
(“ADA”)), 42 U.S.C. § 12101 et. seq. Commercial ent erprises were provided one and a half (1.5)
years from enactment of the statute to implement it s requirements. The effective date of Title III
of the ADA was January 26, 1992, or January 26, 199 3 if Defendant(s) have ten (10) or fewer
employees and gross receipts of $500,000.00 or less . See 42 U.S.C. § 12182; 28 C.F.R. §
36.508(a).
11. As stated in 42 U.S.C § 12101(a)(1)-(3) ,(5) and (9) Congress found, among other
things, that:
a. some 43,000,000 Americans have one or more physical or mental disabilities,
and this number shall increase as the population co ntinues to grow older;
b. historically, society has tended to isolate and seg regate individuals with
disabilities and, despite some improvements, such f orms of discrimination
against disabled individuals continue to be a perva sive social problem,
requiring serious attention
c. discrimination against disabled individuals persist s in such critical areas as
employment, housing, public accommodations, transpo rtation,
communication, recreation, institutionalization, he alth services, voting and
access to public services and public facilities; Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 4 of 10 PageID #:4
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d. individuals with disabilities continually suffer fo rms of discrimination,
including outright intentional exclusion, the discr iminatory effects of
architectural, transportation, and communication ba rriers, failure to make
modifications to existing facilities and practices. Exclusionary qualification
standards and criteria, segregation, and regulation to lesser services, programs,
benefits, or other opportunities; and,
e. the continuing existence of unfair and unnecessary discrimination and
prejudice denies people with disabilities the oppor tunity to compete on
an equal basis and to pursue those opportunities f or which our country is
justifiably famous, and accosts the United States b illions of dollars in
unnecessary expenses resulting from dependency and non-productivity.
12. As stated in 42 U.S.C. § 12101(b)(1)(2) and (4 ) Congress explicitly stated that the
purpose of the ADA was to:
a. provide a clear and comprehensive national m andate for elimination of
discrimination against individuals with disabiliti es;
b. provide clear, strong, consistent, enforceable s tandards addressing discrimination
against individuals with disabilities; and
c. invoke the sweep of congressional authority, inc luding the power to enforce the
fourteenth amendment and to regulate commerce, in o rder to address the major
areas of discrimination faced on a daily basis by p eople with disabilities.
13. Pursuant to 42 U.S.C. § 12182(7), 28 C.F.R. § 36.104 and the 2010 ADA
Standards, Defendant’s Premises is a place of publi c accommodation covered by the ADA by the
fact it provides services to the general public and must be in compliance therewith. The building Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 5 of 10 PageID #:5
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and/or Premises, which is the subject of this actio n, is a public accommodation covered by the
ADA and which must be in compliance therewith.
14. Defendant has discriminated and continues to di scriminate against Plaintiff and
others who are similarly situated, by denying acces s to, and full and equal enjoyment of goods,
services, facilities, privileges, advantages and/or accommodations located at the Premises, as
prohibited by 42 U.S.C. § 12182 and 42 U.S.C. § 121 01 et. seq., and by failing to remove
architectural barriers pursuant to 42 U.S.C. § 1218 2(b)(2)(A)(iv).
15. Plaintiff has visited the Premises, and has bee n denied full and safe equal access
to the facility and therefore suffered an injury in fact.
16. Plaintiff would like to return and enjoy the go ods and/or services at Premises on a
spontaneous, full and equal basis. However, Plaint iff is precluded from doing so by the
Defendant’s failure and refusal to provide disabled persons with full and equal access to their
facilities. Therefore, Plaintiff continues to suff er from discrimination and injury due to the
architectural barriers that are in violation of the ADA.
17. Pursuant to the mandates of 42 U.S.C. § 12134(a ), on July 26, 1991, the
Department of Justice, Officer of the Attorney Gene ral promulgated Federal Regulations to
implement the requirements of the ADA. See 28 C.F.R. § 36 and its successor the 2010 ADA
Standards ADA Accessibility guidelines (hereinafter referred to as “ADAAG”), 28 C.F.R. § 36,
under which said Department may obtain civil penalt ies of up to $55,000.00 for the first
violation and $110,000.00 for and subsequent violat ion. 1
1 Effective April 1, 2014 the civil penalties were in creased, based on inflation, from $55,000.00 to
$75,000.00 for the first violation and from $110,00 0.00 to $150,000.00 for subsequent violations. See
C.F.R. §§36 and 85.
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18. Defendant is in violation of 42 U.S.C. § 12182 et. seq. and the 2010 American
Disabilities Act Standards et. seq., and is discrim inating against Plaintiff as a result of, inter ali a,
the following specific violations:
A. Food Service/ Lounge Area:
a. Failing to provide seating for a person(s) with a d isability that has the correct
clear floor space for forward approach in violation of 2010 ADAAG §§902,
902.2, 305 and 306.
b. Failing to provide a sufficient amount of seating w hen dining surfaces are
provided for the consumption of food or drink for a person(s) with a disability in
violation of 2010 ADAAG §§226, 226.1, 902, 305 and 306.
B. Men’s Restroom:
a. Providing a gate or door with a continuous opening pressure of greater than 5 lbs.
exceeding the limits for a person with a disability in violation of 2010 ADAAG
§§404, 404.1, 404.2, 404.2.9 and 309.4.
b. Providing a swinging door or gate with improper man euvering clearance(s) due to
a wall or some other obstruction that does not comp ly with the standards set forth
in 2010 ADAAG §§404, 404.1, 404.2, 404.2.3, 404.2.4 and 404.2.4.1.
c. Failing to provide operable parts that are function al or are in the proper reach
ranges as required for a person with a disability i n violation of 2010 ADAAG
§§309, 309.1, 309.2, 309.3, 309.4 and 308.
d. Failing to provide the proper insulation or protect ion for plumbing or other sharp
or abrasive objects under a sink or countertop in v iolation of 2010 ADAAG
§§606 and 606.5. Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 7 of 10 PageID #:7
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e. Failing to provide a urinal designed for a person w ith a disability where the
horizontal projection of the urinal is not at a min imum of 13.5 inches in violation
of 2010 ADAAG §§605 and 605.2.
f. Providing grab bars of improper horizontal length o r spacing as required along the
rear or side wall in violation of 2010 ADAAG §§604, 604.5, 604.5.1 and 604.5.2
g. Failing to provide the proper spacing between a gra b bar and an object projecting
out of the wall in violation of 2010 ADAAG §§609, 6 09.1 and 609.3.
h. Failing to provide mirror(s) located above lavatori es or countertops at the proper
height above the finished floor in violation of 201 0 ADAAG §§603 and 603.3.
i. Failing to provide the water closet in the proper p osition relative to the side wall
or partition in violation of 2010 ADAAG §§604 and 6 04.2.
19. To the best of Plaintiff’s belief and knowledge , Defendant has failed to eliminate
the specific violations set forth in paragraph 18 h erein.
20. Although Defendant is charged with having knowl edge of the violations, the
Defendant may not have actual knowledge of said vio lations until this Complaint makes
Defendant aware of same.
21. To date, the readily achievable barriers and ot her violations of the ADA still exist
and have not been remedied or altered in such a way as to effectuate compliance with the
provisions of the ADA.
22. Pursuant to the ADA, 42 U.S.C. § 12101 et. seq. , and 28 C.F.R. § 36.304, the
Defendant was required to make the establishment a place of public accommodation, accessible
to persons with disabilities by January 28, 1992. As of the date of the filing of this Complaint,
Defendant has failed to comply with this mandate. Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 8 of 10 PageID #:8
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23. Plaintiff has retained the undersigned counsel for the filing and prosecution of this
action. Plaintiff is entitled to have his reasonab le attorney’s fees, costs and expenses paid by
Defendant, pursuant to 42 U.S.C § 12205.
24. All of the above violations are readily achieva ble to modify in order to bring
Premises or the Facility/Property into compliance w ith the ADA.
25. In instance(s) where the 2010 ADAAG standard do es not apply, the 1991
ADAAG standard applies and all of the violations li sted in paragraph 18 herein can be applied to
the 1991 ADAAG standards.
26. Pursuant to 42 U.S.C. § 12188, this Court is ve sted with the authority to grant
Plaintiff’s injunctive relief, including an order t o alter the subject facility to make them readily
accessible to and useable by individuals with disab ilities to the extent required by the ADA and
closing the Subject Facility until the requisite mo difications are completed.
WHEREFORE , Plaintiff demands judgment against Defendant and requests the
following injunctive and declaratory relief:
1. That this Court declares that Premises owned, opera ted and/or controlled by
Defendant is in violation of the ADA;
2. That this Court enter an Order requiring Defendant to alter their facilities to make
them accessible to and usable by individuals with d isabilities to the full extent
required by Title III of the ADA;
3. That this Court enter and Order directing the Defen dant to evaluate and neutralize
their policies, practices and procedures toward per sons with disabilities, for such
reasonable time so as to allow the Defendant to und ertake and complete corrective
procedures to Premises; Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 9 of 10 PageID #:9
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4. That this Court award reasonable attorney’s fees, a ll costs (including, but not
limited to the court costs and expert fees) and oth er expenses of suit to the
Plaintiff; and,
5. That this Court award such other and further relief as it may deem necessary, just
and proper.
Dated this 2nd day of May, 2019.
Law Offices of Robert M. Kaplan, P.C.
Counsel for the Plaintiff
1535 W. Schaumburg Rd., Suite 204
Schaumburg, IL 60194
Tel: (847) 895-9151
Fax: (847) 895-7320
By: /s/ Robert M. Kaplan
Robert M. Kaplan, Esq.
IL Bar No.: 6206215
[email protected]
K:\KAPLAN\Clients\LITIGATION\COHAN FILES\Open Files \CohanH.18LIT1282.____.No 53 v Hamptom Inn\Complain t. 05 02 19.docx Case: 1:19-cv-02994 Document #: 1 Filed: 05/02/19 Page 10 of 10 PageID #:10