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CORRESPONDENCE The City 01 &YlltOll Beach DEVELOPMENT DEPARTMENT PLANNING AND ZONING DMSON 100 E. Boynton Beach Boulevard P.O. Box 310 Boynton Beach, Florida 33425-0310 TEL: 561-742-6260 FAX: 561-742-6259 www.boynton-beach.org June 23, 2005 Mr. Paul B. Davis P.B. Davis Construction Company 1307 S. Killian Drive Lake Park, Fl 33403 Re: Pan American Bank Plaza MMSP 05-053 Dear Mr. Davis: In response to your request date-stamped June 14, 2005 for the administrative review and approval of the modifications proposed to the above-referenced approved site plan, depicting the following: . Modification to parking lot to comply with ADA regulations (as depicted on the attached plan) i Please be informed that the proposed changes on the revised plan date stamped 6/14/05 are "minor" as defined within the Land Development Regulations, Chapter 4 - Site Plan Review. Although the modification of the parking lot will reduce the overall number of parking spaces, compliance with the ADA code is the determining factor in granting this approval. As such, this proj ect may continue to be processed by the Building Division as a permit application, subject to the following conditions: 1. No landscaping shall be removed or relocated without previous approval of the City Forester and installation of new landscaping shall be coordinated with the City Forester. Be advised that any proposed changes may require a modification to the building permit. Please contact me at (561) 742-6260 if you have additional questions. Sincerely, Principal Planner Cc: Karen Main, Plan Review Analyst Kevin Hallahan, City Forester P.B. DAVIS CONSTRUCTION COMPANY GENERAL CONTRACTORS 1307 South Killian Dr. Lake Park, FI. 33403 PH: 561-848-0577 Fax: 561-848-0954 COMMERCIAL BUILDERS . June 3, 2005 Ed Breese City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, Fl. 33425 Re: Request for ADA Compliance Corrections @ 3501-3557 W. Boynton Beach Blvd. Dear Mr. Breese Weare requesting approval to make certain adjustments to the existing parking lot as referenced above. The scope of work will be per drawings by Florida Design Architects. Also, I am enclosing a copy of the lawsuit Please give me a call should you have any questions. r'~~i','--'--- , rr; :. \ I:' i., i, ~n :r:~~-'~'III Uut JIt I 420lb ,~l l..~ J [)I [P"I"Gil".'O I l. ,"f LI' . ", J ,:NG DcYf 12/15/2004 15:05 5513585,' BENNARDO & BEN~ 'DIJ J McGoe~ CPA 15S~7348644 PAGE 02/0g p.3 Nov 12 2004 12:34PM Michael ~ l UNITED STATES DISTRICT COURT ::' "'~/',~ SOUlliERN :::::OF FLOORI4DA_ 81 O~~';~:" \ ' ~;~_.::-~ " ACCESS FOR THE DISABLED, INC.~ " ."", ._ , and ROBERT COHEN, ClY~IVDDl)L]J:Bftt)6][(S .. -/. Plaintiffs, . MA~TE JtJi>GE ,~JOBNSONr VS~ ..-.,....._-~..__.. "._. ......__...........,~~~:...,.,.. LOORA MANAGEMENT~ INC., DefendltrJt, / lNJUNCTIVE ~LJEF SOUGHT COMPLAINT Plaintiffs, ACCESS FOR THE DISABLED~ INC., and ROBERT COHEN, by and through the undersigned counsel. hereby sue the Defendant, LOGRA MANAGEMENT, INC., for injunctive reliefptusuant to the Americans with Disabilities Act. 42 US,C. 912181. et seq. (hereinafter, the '~ADA") and the ADA's Accessibility Guidelines, 28 C.F.R. Part 36 (hereinafter, the "ADAAG"), and alleges as follows: .JURISDICTION 1. This Court has oTiginaljurisdiction over the actionpursuantto 28 U.S.C. S~1331 and 1343 for: Plaintiffs' claims m-ising muier42 U.S.C. S12l81, et seq., based upon Defendant's failure to remove physical barriers to access and violations of Title III of the l\DA (see abo. 28 V.S.C. ~~220 I and 2202). PARTIES 2. Plaintiff, COHEN, is a resident ofthc State of Florida and this judicial district~ is sui Juris. and is disabled as dermcd by the ADA and. subst.:\:r..tia11:y limited in pcr.fornJing one 01' more 12/15/2004 15:05 551358F g BEN NARDO & BEr RDo J McGoe~ CPA 1S~.?348S44 PAGE 03/0g p.4 Nov 12 2004 12:34PM M1Ch4@1 maj or life activities, including but not limited to walking and standing. Plaintiff uses a wheelchair for mobility purposes. Plaintiff's access to the Facility and/or his full and equal enjoyment of the goads, s~'fVices, facilities, privileges, advantages and/or accommodations offerrzd therein. was denied and/or limited heca1.\se of these d..lsabilities, and will be denied and/or limited in the future unless and until Defendant is eompelled to remove the physical barriers to accoss and ADA violations which exist at the Facilit:r" including those set forth in this Cotnplaint. 3. ACCESS FOR THE DISABLED, INC., is anon-profit Florida corporation. COHEN is Ii member ofth.is orgaT.l1.zation. This organizationls purpose is to represent the interests of its mcmber(s) and other persons \-vith disabilities by assuring that places of public accommodation are accessible to and usable by individU31s with disabilitil~S. Plaintiff, COHEN, and other persons with disabilities have suffered and/or will suffer direct and indirect injury as a result of Defendant's discriminatioii until Defendant is compel1ed to remove the physical barriers to acces:'l and comply with the requirements of the ADA. 4. Plaintiffs have suffered and continue to suffer direct and indirect injury as a result of Defendanfs actions or. inaction described herein. S. Defendant transacts business in the State of Florida and witb,in this judicial district. Defendant is the ovroer, lessee, lessor and operator of the real property and improvements which are the subject of this action, commonly referred to as the shopping plaza located at or about 3501 West Boynton Beach Blvd., Boynton Beach, Florida (hereinafter~ the "Facility"). FACTUAL ALLEGATIONS AND CLAIM 6. On July 26~ 1990, Congress enacted the Americans willi Disabilitit,)g Act (hereinafter, the "ADA"), 42 D.S,C, ~12101~ et seq. 2 12/15/2004 15:05 551358547" BEN NARDO & BENNAI""D(] J McG~~~ CPA 1581 -48544 PAGE 04/0g p.5 Nov 12 2004 12:35pr1 Miol1del . 7. Congress found, among otber things, that (i) some 43,000.000 Americans have one or more physical or mental disabilities, and this nu:rr1ber is increasing as the population as a whole is growing older; (ii) historica11Yt society has tended to isolate and segregate individuals with disabilities., and, despite some improvements, such forms of discrimination against individuals with disabilities couti.nue to be a serious and pervasive social problem; (iii) discrimination against individuals with disabilities persists in such critical areas as cmploynlent, housffig public accommodations, education, transportation, communication, recreadon, :institutionalization, health services, votingl.and access to public services; (iv) individuals with disabilities continually encounter various forms of discrimination, i.ncluding outright intentional exclusion, the discriminatory effects of architectural, transportation, a.nd communication barriers, ovel:pfotective rules and policies. failure to makr:: roodif.1Cations to existing facilities an.d practices, exclusionary qualification standards and criteria. segregation, and relegation to lesser service, programs, activities, benefits, jobs, or other opportunities; and, (v) the continuing existence of unfair and wmecli:ssary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for wbich our :free society is jost1fiably fEUTIOl1S. and costs tbe United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity. 42 v.S.C. s12101(a)(l) - (3), (5) and (9). 8. Congress explicitly stated that the purpose oftbe ADA wM to: (i) provide a clear and comprehensive national mandate for the elimh1.ation of discrimination agaiMt individuals with dj,sabilities; (ii) provide a clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; ~md. (iii) invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the majol:' areas of discrimination faced d~;y-to-day by people 'With disabiljties. 3 12/15/2004 15:05 551358F '78 BEN NARDO & BE"' ''iRDIJ J NcGoe~ CPA 1~ ~7348544 PAGE 05/0g p.6 Nov 12 2004 12=35PM h~chael 42 U.s,C. 912101 (b)(1)(2) and (4). 9. The congressional legislation provided places of pubUc accoromodation one and a half years from the enactment of the ADA to implement the requirements imposed by the ADA. The . effective date of Title HI of the ADA was January 26, 1992, or. January 26, 1993 if the place of public accommodation has 10 or fewer employees and gross receipts of $500,000 or less. 42 U.S. C. ~12181; 28 C.F.R. ~36.508(a). 10. 'The Facility i5 a public accommodation and ser'lY.ce establishment. 11, Pursuant to the mandates of 42 V.S.C. S12134(a), on July 26,1991, the Department of Justice, Office of Attorney Geucml, promulgated. federal regulations to :implement the requirements of the ADA. 29 C.F.R. Part 36. Public accommodations were required to conform to these regulations by January 26, 1992 (or January 26, 1993jf defendant has J 0 or fewer employees and gross receiflts 0:f$500,000 or less). 42 UB.C. ~12181) et seq_, and 28 C.F.R. ~ 36.508(a). 12. The Facility must be, but is not, in compliance with the ADA and ADAAG, 13. Plaintiffs have attempted to and have to the extent possiblc~ accessed the Facility! but could not do so because of a disability due to the physical barriers to access, dangerous conditions and ADA Yiolations that exist at the Facility that preclude and/or limit acce::;s to the Facility and/or the goods, services, facilities, privileges, advantages andJor accommodations offered therein, including those barriers, conditions and ADA violations more specifically set forth in tbi!'l Complaint. 14. Plaintiffs intend to visit the Facility again jn the near future in order t.o utilize all of the goods, services, facilities, privileges, advantages and/or accommodations commonly offered at this facility, including utilizing parking and restroom facilities, but will be unable to do $0 because of a disability due to the physical barriers to access, d.mgeraus conditions and ADA vi.olations that exist 4 12!15/2~04 15:05 5513585470 BENNARDo & BENNAPDo Nov 12 2004 12:3GPM Mic.,..oilE'l J McGmn:l CPA 15S: 48544 PAGE 05/0g p.7 at 1he property that preclude and/or limit his acce~s to the Facility andlor the goods, services, facilities, privileges, advantages mld/or acconunodcttions offered therein> including those barriers, conditions and ADA violations more specifically set fortb in this Complaint. 15. Defendant has discriminated against Plaintiffs and others with disabilities, by den}ing acceSS to, and :full and equal enjoyment of the goods, scr.v.iccs, facili.ties, privileges, advantages and/or accommodations of the Facility, as prohibited by 42 U.s.C. S 12182, et seq., by failing to make alterations to ensure that to the maximum extentfcasible the facilities and path of travel are accessible and by failing to remove architectural barriers as required by 42 US.C. ~ 12182(b )(2)(A)(iv), an.d. will continue to discriminate against Plaintiffs and others with disabilities unless and untU Defendant is compelled to remove all physical barriers that ex.i8t at the Facility, including those specifically set forth herein, and make the Facility accessible to and usable by persons with disabilities, including PlaintifIc;. 16. Defendant bas discrimin.ated against Plaintiffs by failing to comply with the above requirements. A specific~ although not exclusive, list of unlawful physical barriers, dangerous conditions and ADA violations wh.ich preclude andlor limit Plaintiff.cs' ability (because of s. disability) to access ihe Facility and/or full and equal enjoyment of the ~O()d.s, setvices, facilities, privileges, advantages and/or accommodations of the Facility, include: a.. The parking space..,> designated as accessible arc not, in fact accessible. ADAAG 4.1.2(5). b. The parking spaces designated as accessible do not have clear and level access aisles. ADA<\G 4.6. c. There are an in,suffi.cient number of accessible parking spaces. ADAAG 4.1.2(5). 5 12/15/2304 15:05 551358F-<178 BENNARDo & BP" JARD[J J NcGoe~ CPA 1, 17349544 PAGE 0710g r.8 Nov 12 2004 12:37PM I .chael d. The parking spaces designated as accessihle are not properly dispersed among the various entrance. . ADAAG 4.6. e. The parking spaces are not designated with proper. signage. ADAAG 4.6.4 and Florida Accessibility Code. f. The ramps are designated improperly and have excessive slopes, a drop- off and a change in level. ADAAG 4.7 and 4.8. g. There is not an accessi.ble route from the street, sid~~k and;'or public transpormtion stop to the Facility. ADAAG 4.3.2. b. There are counters within the Facility that aJ;'e too lligh. ADAAG 7.2. 1. There 8.(e l'es1rom.ns at the Facility that are not accessible, and lack dear floor space, turning ~pace and maneuvering space for wheelchairs, have inaccessible signage, sinks, inaccessible water closets, grab bars, mirrors and dispensers. ADAJ-\,G 4.22 and 4.16. 16. The above listing is .oot to be considered aJHnclusive of the harriers, conditions or violations encountered by Plaintiffs and/or which exist at the Facility. Plaintiffg require an inspection of the FacUity in order to determine all of the discriminatory acts violating the ADA. 17. Plaintim have attempted to gain access to the Facility, but because of a disability have been deni ed access to, IlD,d have heen denied the benefits of services~ program5 and ac.tivities of the Facility, and h~.ve otherwise been discriminated against and dama.ged by Defendant, because of th.e physical bauiers~ dangerous conditions and ADA violati.ons set forth above, and expects to be discriminated againS't in the future by Defendant because of PlaintiffS' disa.bility, unless and until Defendant is compelled to remove tbe unla\vful. barriers and conditions and comply with the ADA. , 18, Tn.e removal of the physical barriers, dangerous conditions and A.DA violations set forth herein is readily achievable and can. be accomplished and carried out without mnch difiiculty or expense. 42 V.S.C. g12182(b)(2)(A)(iv); 42 v.S.C. g121 ~1(9); 28 C.P.R. ~i 36.304. 6 12/15/2004 15:05 551358547q BENNARDo & BENI'-I ~ QDIJ J McGoe~ CPA 15b 348544 PAGE 08/0g p.S !'lev 12 2004 l2: 37Pt1 Ml .,13~l 19. Plaintiffs are with,Qut adequate remedy at law and is suffering irreparable bmm, and reasonably anticipates that they \;v.ill continue to suffer irreparable harm unless and until Defendant is required to remove the physical baniers, dangerous conditions and ADA violations that exist at the Facilityl inclnding those set forth herein. 20. Plaintiffs bave been obligated to reta.in the undersigned counsel for the fIling and prosecution of this action. Plaintiffs are entitled to reim.bursement for the undersigned counsel~ s reasonable attomcys' feeS;, costs and litigation expenses from Defendant pursuant to 42 U.S.C. ~S 12205 and 12U7. 21. Pursusutto 42 D.S.C. S12188(a), this Caurtis provided authori,tyto grant injunctive relief to Plaintiffs, including an order to alter the subj ect Facility to make it readily acoessiblc to and useable by individllills with d.isabiIities to the extent required by the ADA, and closing th~ subject Facilitjr l.mtil the requisite modifications are compleh~d. WHEREFORE, Plaintiffs respectfully requc!rt that the Court issue a permanent injunction enjoining Defendant from continuing its discriminatory practices, ordering Defendant to r~mo'Ve the physical barriers to access and alter the subject Facility to make it readily accessible to and useahle by individuals with disabilities to the extent required by the ADA, closing the subject Facility until the barriers are removed and requisite alterations are completed, and av.rarding Plaintiffs their reasonable attorney's fees, expert fees, costs and expenses mCUITed in this action. 7 12/15/2004 15:05 551358547q BENNARDo & BENN~~Do Nov 12 2004 12:3SPM Hi ael J MeGoe~ CPA 158 ]48544 PAGE 0g/0g p.10 a W. hutby,' . 10lida. Bar No.: 0683 Atto TODD W. SHULBY, P.A 12555 Orange Drive, Suite 270 Davie, Florida 33330-4304 Telephone; (954) 862-1770 Facsimile: (954) 862-1769 E-mail: tshulby@comcast.net 8 c. PROJECT NAME: Pan Am Bank Plaza LOCATION: 3501-3557 W. Boynton Beach Blvd. PCN: I FILE NO.: MMSP 05-053 II TYPE OF APPLICATION: I AGENT/CONTACT PERSON: OWNER: Paul B. Davis ADDRESS: P .B. Davis Construction Company ADDRESS: 1307 South Killian Drive FAX: Lake Park, FL 33403 PHONE: FAX: 561-848-0954 - PHONE: 561-848-0577 SUBMITTAL / RESUBMITTAL 6/14/05 1 ST REVIEW COMMENTS DUE: PUBLIC /IP ARC NOTICE: TART MEETING: LAND DEVELOPMENT SIGNS POSTED (SITE PLANS): LEGAL AD: PLANNING & DEVELOPMENT BOARD MEETING: COMMUNITY REDEVELOPMENT AGENCY BOARD CITY COMMISSION MEETING: COMMENTS: Handicap Parking ADA suit S:\Planning\SHARED\WP\PROJECTS\Pan Am Bank Plaza\2005 PROJECT TRACKING INFO,doc