UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

DAVID POSCHMANN,

Plaintiff,

v. CASE NO.

CURRY ON FLEMING, LLC,

Defendant.

_______________________________________ /

COMPLAINT

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

Defendant, CURRY ON FLEMING, 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 district pursuant to 28 U.S.C. § 1391(b) because, inter alia, 

Defendant is a resident of this district and the events giving rise to the claims asserted herein 

occurred in this district and the hotel whose reservation system is at issue herein is located 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.

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

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

Vehicles. Defendant's online hotel reservation system fails to comply with any of the 

requirements of 28 C.F.R. §36.302(e) and therefore Plaintiffs full and equal enjoyment o f 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 hotel's 

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

hotel in the near future, and within thirty 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 operator of Marrero's Guest Mansion, located at 410 Fleming 

Street in Key West, Florida ("the Hotel"). The online reservation system for the Hotel is found at 

www.marreros.com.

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 

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)>.

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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

(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."

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)(1), 

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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8. The Hotel is a place of public accommodation that owns and/or leases and

operates a place of lodging pursuant to the ADA. The Hotel has an online reservation system 

whereby potential patrons may reserve a hotel room. The reservation system is 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 room at the Hotel through the Hotel's online 

reservation system 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 Hotel's online reservation system due to the substantive 

ADA violations contained thereon.

12. The online reservation system for Defendant's Hotel encountered by Plaintiff 

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

When Plaintiff visited the Hotel's online reservation system he tried to make a reservation for an 

accessible guest room at the Hotel, since he requires an accessible guest room due to the 

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

reserve a guest room that was not accessible. For this reason Defendant has no policy, practice,

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or procedure in place 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. This constitutes a violation of 28 C.F.R.§ 36.302(e)(l)(i). When Plaintiff 

visited the Hotel's online reservation system he searched the site for the identification and 

descriptions of accessible features in the Hotel and guest rooms offered through the reservations 

service so that he could assess independently whether the hotel or a specific guest room met his 

accessibility needs in light of his disability but the reservations service contained no such 

descriptions at all. This constitutes a violation of 28 C.F.R.§ 36.302(e)( 1 )(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 service does not describe any accessible guest rooms and does not, in turn, 

allow the reserving of such accessible guestrooms, the Website cannot hold such unavailable 

accessible rooms in the reservations system until all other rooms have been rented, block such 

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

accessible guest 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 system for its 

Hotel and maintain the online reservation system and accompanying policies in a manner that is 

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

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.

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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 system in accordance with the requirements set forth in

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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 system for the Hotel in accordance with

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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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 system. As rates and classes of rooms change 

at the hotel, and the number and type of beds, accommodations and amenities offered in the various room types 

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

classes, as well as across 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 hotel, the online reservation 

system 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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