UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

DAVID POSCHMANN,

Plaintiff,

v. CASE NO.

ZERBY HOTEL, LLC,

Defendant.

/

COMPLAINT

Plaintiff, David Poschmann, by and through his undersigned counsel, hereby sues the 

Defendant, ZERBY HOTEL, LLC, for injunctive relief pursuant to the Americans With 

Disabilities Act, 42 U.S.C. §12181, et seq. (the "ADA") and in support thereof states as follows:

JURISDICTION

1. This court has subject-matter jurisdiction since this action arises pursuant to 28 

U.S.C. § 1331 and §1343 and Plaintiffs claims arise under 42 U.S.C. §12181 et seq. based upon 

Defendant's violations of Title III of the ADA.

VENUE

2. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) because 

Defendant is a resident of this district and the facilities, whose online reservation systems are at 

issue herein, are situated in this district.

PARTIES

3. Plaintiff, David Poschmann, is an individual who is over eighteen years of age 

and sui juris. Plaintiff is disabled as such term is defined by the ADA and is substantially limited 

in performing one or more major life activities due to the amputation of his right leg in 2012. 

Plaintiff uses a wheelchair to ambulate. Plaintiff drives his own specially equipped vehicle and

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has a valid disabled parking permit from the Florida Department of Highway Safety and Motor 

Vehicles. Defendant's online hotel reservation systems fail to comply with any of the 

requirements of 28 C.F.R. §36.302(e) and therefore Plaintiffs full and equal enjoyment of the 

goods, services, facilities, privileges, advantages and/or accommodations offered thereon are 

restricted and limited because of Plaintiff s disability and will be restricted in the future unless 

and until Defendant is compelled to cure the substantive ADA violations contained on the hotels' 

online reservation system. Plaintiff intends to visit the online reservation system for Defendant's 

hotels in the near future, and within thirty (30) days, to book a hotel room and utilize the goods, 

services, facilities, privileges, advantages and/or accommodations being offered and/or to test the 

online reservation system for compliance with 28 C.F.R. §36.302(e).

4. Defendant is the owner and operator of the Old Town Manor, located at 511 

Eaton Street in Key West, Florida (the "Old Town Manor"). The online reservation system for 

the Old Town Manor is found at www.oldtownmanor.com. Defendant is also the owner and 

operator of the Rose Lane Villas located at 522 Rose Lane in Key West, Florida (the "Rose 

Lane"). The online reservation system for the Rose Lane Villas is found at 

www.roselanevillas.com. The Old Town Manor and the Rose Lane Villas are collectively 

referred to herein as (the "Hotels").

CLAIM FOR INJUNCTIVE RELIEF PURSUANT TO THE ADA

5. On July 26, 1990, Congress enacted the ADA explaining that the purpose of the 

ADA was to provide a clear and comprehensive national mandate for the elimination of 

discrimination against individuals with disabilities and to provide clear, strong, consistent, 

enforceable standards addressing said discrimination, invoking the sweep of congressional 

authority in order to address the major areas of discrimination faced day-to-day by people with

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disabilities to ensure that the Federal government plays a central role in enforcing the standards 

set by the ADA. (42 U.S.C. § 12101(b)(l)-(4)).

6. Pursuant to the mandates of 42 U.S.C. §12134(a), on September 15, 2010, the 

Department of Justice, Office of the Attorney General, published revised regulations for Title III 

of the Americans With Disabilities Act of 1990 in the Federal Register to implement the 

requirements of the ADA. Public accommodations, including places of lodging, were required to 

conform to these regulations on or before March 15, 2012.

7. On March 15, 2012, new regulations implementing Title III of the ADA took 

effect, imposing significant new obligations on inns, motels, hotels and other "places of 

lodging". 28 C.F.R. §36.302(e) states:

"(1) Reservations made by places o f lodging. A public accommodation that owns, leases 

(or leases to), or operates a place of lodging shall, with respect to reservations made by any 

means, including by telephone, in-person, or through a third party -

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can 

make reservations for accessible guest rooms during the same hours and in the same manner 

as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its 

reservations service in enough detail to reasonably permit individuals with disabilities to assess 

independently whether a given hotel or guest room meets his or her accessibility needs;1

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all 

other guest rooms of that type have been rented and the accessible room requested is the only 

remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure 

that the guest rooms requested are blocked and removed from all reservations systems; and

1 The United States Department of Justice, in "28 C.F.R. Appendix A to Part 36, Guidance on Revisions to ADA 

Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities", 

provides a section-by-section analysis of 28 C.F.R. §36.302(e)(l). In its analysis and guidance, the Department of 

Justice's official comments state that "information about the Hotel should include, at a minimum, information about 

accessible entrances to the hotel, the path of travel to guest check-in and other essential services, and the accessible 

route to the accessible room or rooms. In addition to the room information described above, these hotels should 

provide information about important features that do not comply with the 1991 Standards." An agency's 

interpretation of its own regulations, such as the Department of Justice's interpretation of 28 C.F.R. §36.302(e)(l), 

must be given "substantial deference" and "controlling weight" unless it is "plainly erroneous or inconsistent with 

the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).

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(v) Guarantee that the specific accessible guest room reserved through its reservations service is 

held for the reserving customer, regardless of whether a specific room is held in response to 

reservations made by others."

8. The Hotels are places of public accommodation that own and/or lease and operate 

a place of lodging pursuant to the ADA. The Hotels have online reservation systems whereby 

potential patrons may reserve a hotel room. The online hotel room reservation systems are 

subject to the requirements of 28 C.F.R.§ 36.302(e) and Defendant is responsible for said 

compliance.

9. Most recently, during June, 2020 Plaintiff attempted to specifically identify and 

book a guaranteed reservation for an accessible hotel room at the Hotels through the Hotels' 

online reservation systems but was unable to do so due to Defendant's failure to comply with the 

requirements set forth in paragraph 7.

10. Plaintiff is an advocate of the rights of similarly situated disabled persons and, 

pursuant to Houston v. MarodSupermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013), is a "tester" 

for the purpose of asserting his civil rights, monitoring, ensuring, and determining whether 

places of public accommodation, including online reservation systems for places of lodging, are 

in compliance with the ADA.

11. Defendant has discriminated against Plaintiff by denying him access to and full 

and equal enjoyment of the goods, services, facilities, privileges, advantages and 

accommodations offered through the Hotels' online reservation systems due to the substantive 

ADA violations contained thereon.

12. The online reservation systems for Defendant's Hotels encountered by Plaintiff 

when he visited them failed to comply with any of the requirements of 28 C.F.R.§ 36.302(e)(1). 

When Plaintiff visited the Hotels' online reservation systems he tried to make a reservation for an 

accessible hotel room at the Hotels, since he requires an accessible unit due to the amputation of

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his right leg, but it was not possible to make such a reservation. It was possible to reserve a room 

that was not accessible. For this reason Defendant has no policy, practice, or procedure in place 

to ensure that individuals with disabilities can make reservations for accessible hotel rooms 

during the same hours and in the same manner as individuals who do not need accessible hotel 

rooms. This constitutes a violation of 28 C.F.R.§ 36.302(e)(l)(i). When Plaintiff visited the 

Hotels' online reservation systems he searched the sites for the identification and descriptions of 

accessible features in the Hotels and hotel rooms offered through the reservations services so that 

he could assess independently whether the Hotels or a specific hotel room met his accessibility 

needs in light of his disability but the reservations services contained no such descriptions at all. 

This constitutes a violation of 28 C.F.R.§ 36.302(e)(l)(ii). In light of the foregoing, Defendant 

also necessarily violated 28 C.F.R. §36.302(e)( 1 )(iii)-(v) in that since the online reservations 

services do not describe any accessible hotel room and do not, in turn, allow the reserving of 

such accessible hotel rooms, the Websites cannot hold such unavailable accessible hotel rooms in 

the reservations systems until all other rooms have been rented, block such unavailable 

accessible hotel rooms from the systems once reserved, and guaranty that such unavailable 

accessible hotel rooms will be held for the reserving customer as required by sections (iii) - (v) 

respectively.

13. Plaintiff is without an adequate remedy at law and is suffering irreparable harm

and he reasonably anticipates that he will continue to suffer irreparable harm unless and until 

Defendant is required to correct the ADA violations to the online reservation systems for their 

Hotels and maintain the online reservation systems and accompanying policies in a manner that 

is consistent with and compliant with the requirements of 28 C.F.R. §36.302(e).

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14. Plaintiff has retained the undersigned counsel for the filing and prosecution of this 

action and is entitled to recover reasonable attorneys’ fees, costs and expenses from Defendant, 

including litigation expenses and costs pursuant to 42 U.S.C. §12205.

15. Pursuant to 42 U.S.C. § 12188(a), this Court is provided with authority to grant 

injunctive relief to Plaintiff, including an Order compelling Defendant to implement policies, 

consistent with the ADA, to accommodate the disabled, by requiring Defendant to alter and 

maintain their online reservation systems in accordance with the requirements set forth in 

paragraph 7 above."

WHEREFORE, Plaintiff, David Poschmann, requests that the Court issue a permanent 

injunction enjoining Defendant from continuing its discriminatory practices, ordering Defendant 

to implement policies, consistent with the ADA, to accommodate the disabled, through requiring 

Defendant to alter and maintain the online reservation systems for the Hotels in accordance with

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The injunction, to be meaningful and fulfill its intended purpose, should require Defendant to develop, and strictly 

enforce, a policy requiring regular monitoring of its online reservation systems. As rates and classes of hotel rooms 

change at the Hotels, and the number and type of hotel rooms, beds, accommodations and amenities offered in the 

various hotel rooms change from time to time, the availability of accessible hotel rooms must be re-dispersed across 

these various price points, classes, as well as across hotel rooms with disparate features (2010 ADA Standard 224.5). 

In light of the foregoing, in addition to regular ongoing website maintenance and to reflect physical changes at the 

hotels, the online reservation systems must continuously be updated to properly reflect and describe Defendant's 

compliance with the substantive ADA Standards regarding accessible hotel rooms in accordance with 28 C.F.R. 

36.302(e)(1).

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the requirements set forth in paragraph 7 above, and awarding Plaintiff reasonable attorneys’ 

fees, litigation expenses, including expert fees, and costs.

s/Drew M. Levitt 

DREW M. LEVITT 

Florida Bar No: 782246 

drewmlevitt@gmail.com

LEE D. SARKIN 

Florida Bar No. 962848 

Lsarkin@aol.com

4700 N.W. Boca Raton Boulevard, Ste. 302 

Boca Raton, Florida 33431 

Telephone (561) 994-6922 

Facsimile (561) 994-0837 

Attorneys for Plaintiff

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