UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

 CASE NO.:

HOWARD COHAN,

Plaintiff,

vs. INJUNCTIVE RELIEF SOUGHT

MIRZA PETROLEUM COMPANY

a Florida Profit Corporation

d/b/a EXXON

Defendant(s).

____________________________________/

COMPLAINT

Plaintiff, HOWARD COHAN (“Plaintiff”), by and through the undersigned counsel, 

hereby files this Complaint and sues MIRZA PETROLEUM COMPANY, a Florida Profit 

Corporation, d/b/a EXXON (“Defendant”), for declaratory and injunctive relief, attorneys’ 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 with Disabilities Act (“ADA”) and alleges as follows:

JURISDICTION AND VENUE

1. This is a complaint for breach of contract and injunctive relief seeking enforcement 

of the Settlement Agreement and Release (copy attached as Exhibit A) reached in the case of 

HOWARD COHAN v. MIRZA PETROLEUM COMPANY, 9:18-CV-80934-WPD (S.D. Fla.) 

(dismissed by order upon settlement) which arose out of Plaintiff’s claim of discrimination caused 

by certain barriers encountered by Plaintiff on Defendant’s property that prevented Plaintiff from 

the full and equal enjoyment of a place of public accommodation in violation of Title III of the 

Americans with Disabilities Act.

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2. This Court is vested with original jurisdiction over 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.

3. Venue is proper in this Court, West Palm Beach Division, pursuant to 28 U.S.C. § 

1391(B) and Internal Operating Procedures for the United States District Court For the Southern 

District of Florida in that all events giving rise to the lawsuit occurred in Palm Beach County, 

Florida.

PARTIES

4. Plaintiff, HOWARD COHAN is sui juris and is a resident of the State of 

Florida residing in Palm Beach County, Florida.

5. Upon information and belief, Defendant is the lessee, operator, owner and 

lessor of the Real Property, which is subject to this suit, and is located at 9890 Lake Worth Road, 

Lake Worth, FL 33467, (“Premises”), and is the owner of the improvements where Premises is 

located.

6. Defendant is authorized to conduct, and is in fact conducting, business 

within the state of Florida.

7. Plaintiff is an individual with numerous permanent disabilities 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 full thickness tear of the right rotator cuff; 

a right knee medial meniscal tear; a repaired ACL and bilateral meniscal tear of the left knee; and 

severe basal joint arthritis of the left thumb. The above listed permanent disabilities and symptoms 

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cause sudden onsets of severe pain and substantially limit Plaintiff’s major life activities. As such, 

Plaintiff suffered from a “qualified disability” under the ADA. 42 U.S.C § 12101, et seq.

8. On June 12, 2018, Plaintiff visited Defendant’s Premises. At the time of 

Plaintiff’s visit to the Premises on June 12, 2018, Plaintiff required the use of fully accessible 

restrooms, fully accessible service and eating areas, fully accessible and properly marked parking 

for individuals with disabilities, and fully accessible paths of travel throughout the facility. Plaintiff 

personally visited the Premises, but was denied full and equal access and full and equal enjoyment 

of the facilities, services, goods, and amenities within the Premises, even though he was a “bona 

fide patron”.

9. Defendant’s Premises is a public accommodation as defined by Title III of 

the ADA and as such is governed by the ADA.

10. On or about July 16, 2018, Plaintiff filed a lawsuit against Defendant 

seeking to force Defendant to comply with the ADA and applicable regulations thereto. See 

HOWARD COHAN v. MIRZA PETROLEUM COMPANY, 9:18-CV-80934-WPD (S.D. Fla.)

11. On or about August 21, 2018, Plaintiff’s suit was dismissed upon the filing 

of a Notice of Voluntary Dismissal to the U.S. District Court indicating that the parties had settled. 

12. In connection with said dismissal, Plaintiff and Defendant entered into a 

Settlement Agreement and Release (Exhibit A) on or about August 13, 2018.

13. The Settlement Agreement and Release required Defendant to complete all 

modifications to the Premises by on or about April 13, 2019.

14. Defendant has failed to complete the required modification(s) to the 

Premises as required by the ADA and the Settlement Agreement and Release and Defendant has 

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failed to give notice of any reasons or documentation for non-compliance, and failed to provide 

notice of completion of modifications consistent with the terms of the agreement. 

15. Plaintiff again personally visited Defendant’s Premises on June 6, 2020, 

(and prior to instituting this action). 

16. Plaintiff required the use of fully accessible paths of travel throughout the 

facility, fully accessible restrooms, and fully accessible service and eating areas. Plaintiff was 

denied full and equal access and full and equal enjoyment of the facilities, services, goods, and 

amenities within the Premises, even though was “bona fide patron”. A true and correct copy of 

Plaintiff’s Purchase receipt is attached hereto as Exhibit “B”.

17. Plaintiff, in his individual capacity, has shown that he will absolutely return 

to the Premises and avail himself of the services offered when Defendant modifies the Premises 

or modifies the policies and practices to accommodate individuals who have physical disabilities.

18. Plaintiff is continuously aware of the violations at Defendant's Premises and 

is aware that it would be a futile gesture to return to the Premises as long as those violations exist, 

and Plaintiff is not willing to suffer additional discrimination.

19. Plaintiff has suffered, and will continue to suffer, direct and indirect injury 

as a result of Defendant's discrimination until Defendant is compelled to comply with the 

requirements of the ADA.

20. Plaintiff would like to be able to be a patron of the Premises in the future 

and be able to enjoy the goods and services that are available to the able-bodied public, but is 

currently precluded from doing so as a result of Defendant's discriminatory conduct as described 

herein. Plaintiff will continue to be precluded from using the Premises until corrective measures 

are taken at the Premises to eliminate the discrimination against persons with physical disabilities.

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21. Completely independent of the personal desire to have access to this place 

of public accommodation free of illegal barriers to access, Plaintiff also acts as a “tester” for the 

purpose of discovering, encountering and engaging discrimination against the disabled in public 

accommodations. When acting as a “tester”, Plaintiff 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 of those barriers to access to determine whether and 

the extent to which they are illegal barriers to access; proceeds with legal action to enjoin such 

discrimination; and subsequently returns to Premises to verify its compliance or non-compliance 

with the ADA and to otherwise use the public accommodation as members of the able-bodied 

community are able to do. Independent of other subsequent 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 Premises, encountered barriers to access at Premises, 

and engaged and tested those barriers, suffered 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 belief that said violations will not be corrected without Court 

intervention, and thus Plaintiff will suffer legal harm and injury in the near future.

22. Plaintiff, in his capacity as a tester, will absolutely return to the Premises 

when Defendant modifies the Premises or modifies the policies and practices to accommodate 

individuals who have physical disabilities to confirm said modifications have been completed in 

accordance with the requirements of the ADA.

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COUNT I 

VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT

23. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1 through 22 

above as if fully stated herein.

24. On July 26, 1990, Congress enacted the Americans With Disabilities Act (“ADA”), 

42 U.S.C. § 12101 et. seq. Commercial enterprises were provided one and a half (1.5) years from 

enactment of the statute to implement its requirements. The effective date of Title III of the ADA 

was January 26, 1992, or January 26, 1993 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).

25. 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 continues to grow older;

b. historically, society has tended to isolate and segregate individuals with disabilities and, 

despite some improvements, such forms of discrimination against disabled individuals 

continue to be a pervasive social problem, requiring serious attention;

c. discrimination against disabled individuals persists in such critical areas as 

employment, housing, public accommodations, transportation, communication, 

recreation, institutionalization, health services, voting and access to public services and 

public facilities;

d. individuals with disabilities continually suffer forms of discrimination, including 

outright intentional exclusion, the discriminatory effects of architectural, 

transportation, and communication barriers, 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,

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e. the continuing existence of unfair and unnecessary discrimination and prejudice denies 

people with disabilities the opportunity to compete on an equal basis and to pursue 

those opportunities for which our country is justifiably famous, and accosts the United 

States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

42 U.S.C. § 12101(a)(1)-(3),(5) and (9).

26. Congress explicitly stated that the purpose of the ADA was to:

a. provide a clear and comprehensive national mandate for elimination of discrimination 

against individuals with disabilities;

b. provide clear, strong, consistent, enforceable standards addressing discrimination 

against individuals with disabilities; and

c. invoke the sweep of congressional authority, including the power to enforce the 

fourteenth amendment and to regulate commerce, in order to address the major areas 

of discrimination faced on a daily basis by people with disabilities.

U.S.C. § 12101(b)(1)(2) and (4).

27. 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 public accommodation covered by the ADA by the fact it 

provides services to the general public and must be in compliance therewith. 

28. Defendant has discriminated and continues to discriminate against Plaintiff and 

others who are similarly situated, by denying access 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. § 12101 et. seq., and by failing to remove 

architectural barriers pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv).

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29. Plaintiff has visited Premises, and has been denied full and safe equal access to the 

facilities and therefore suffered an injury in fact.

30. Plaintiff would like to return and enjoy the goods and/or services at Premises on a 

spontaneous, full and equal basis. However, Plaintiff 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 suffer from discrimination and injury due to the 

architectural barriers that are in violation of the ADA.

31. Pursuant to the mandates of 42 U.S.C. § 12134(a), on July 26, 1991, the Department 

of Justice, Officer of the Attorney General 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 penalties of up to $55,000.00 for the first violation and $110,000.00 

for and subsequent violation.

32. Based on a preliminary inspection of the Premises, Defendant is in violation of 42 

U.S.C. § 12182 et. seq. and the 2010 American Disabilities Act Standards et. seq., and is 

discriminating against Plaintiff as a result of, inter alia, the following specific violations:

Men's Restroom 

a. Failure to provide a coat hook within the proper reach ranges for a person with a 

disability in violation of 2010 ADAAG §§ 603, 603.4 and 308. Failure to provide 

grab bars at 33 inches minimum and 36 inches maximum above the finished floor 

measured to the top of the gripping surface in violation of 2010 ADAAG §§609, 

609.4 and 609.7

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b. Providing an element or object that protrudes greater than 4” into a pathway or 

space of travel situated between 27” and 80” high in violation of 2010 ADAAG §§ 

204, 307, 307.1, 307.2. 

c. Failure to provide sufficient clear floor space around a water closet without any 

obstructing elements in this space in violation of 2010 ADAAG §§4.22.3, 603, 

603.2.3, 604, 604.3 and 604.3.1. 

d. Providing grab bars of improper horizontal length or spacing as required along the 

rear or side wall in violation of 2010 ADAAG §§ 604, 604.5, 604.5.1 and 604.5.2. 

e. Failure to provide grab bars at 33 inches minimum and 36 inches maximum above 

the finished floor measured to the top of the gripping surface in violation of 2010 

ADAAG §§ 609, 609.4 and 609.7. 

f. Failure to provide proper signage for an accessible restroom or failure to redirect a 

person with a disability to the closest available accessible restroom facility in 

violation of 2010 ADAAG §§ 216, 216.2, 216.6, 216.8, 603, 703, 703.1, 703.2, 

703.5 and 703.7.2.1. 

g. Failure to provide the proper insulation or protection for plumbing or other sharp 

or abrasive objects under a sink or countertop in violation of 2010 ADAAG §§ 606 

and 606.5. 

Food Service

h. Providing counter heights exceeding 36 inches making it impossible to service a 

person with a disability in violation of 2010 ADAAG §§ 904, 904.4, 904.4.1, 

904.4.2, 305 and 306. 

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i. Failure to provide the correct opening width for a forward approach into a urinal, 

stall door or lavatory (sink) in violation of 2010 ADAAG §§ 305, 305.7.1, 

404, 605.3 and 606.2 

j. Failure to provide proper knee clearance for a person with a disability under a 

counter or sink element in violation of 2010 ADAAG §§ 306, 306.1 306.3, 606 and 

606.2 

k. Providing a swinging door or gate with improper maneuvering clearance(s) due to 

a wall or some other obstruction in violation of 2010 ADAAG §§ 404, 404.1, 404.2, 

404.2.4 and 404.2.4.1. (Urinal)

l. Providing a swinging door or gate with improper maneuvering clearance(s) due to 

a wall or some other obstruction in violation of 2010 ADAAG §§ 404, 404.1, 404.2, 

404.2.4 and 404.2.4.1. (Shopping Cart) 

Accessible Seating

m. Failure to provide seating for a person(s) with a disability that has the correct clear 

floor space for forward approach in violation of 2010 ADAAG §§ 902, 902.2, 305 

and 306. 

n. Failure to provide a sufficient amount of seating when 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. 

Pathways in Store

o. Providing pathways and or aisles that are too narrow in violation of 2010 ADAAG 

§§ 403, 403.1 and 403.5.1. 

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33. To the best of Plaintiff’s belief and knowledge, Defendant has failed to eliminate 

the specific violations set forth in paragraph 32 herein.

34. Although Defendant is charged with having knowledge of the violations, Defendant 

may not have actual knowledge of said violations until this Complaint makes Defendant aware of 

same.

35. To date, the readily achievable barriers and other 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.

36. As the owner, lessor, lessee or operator of the Premises, Defendant is required to 

comply with the ADA. To the extent the Premises, or portions thereof, existed and were occupied 

prior to January 26, 1992, the owner, lessor, lessee or operator has been under a continuing 

obligation to remove architectural barriers at the Premises where removal was readily achievable, 

as required by 28 C.F.R. §36.402. 

37. To the extent the Premises, or portions thereof, were constructed for occupancy 

after January 26, 1993 the owner, lessor, lessee or operator of the Premises was under an obligation 

to design and construct such Premises such that it is readily accessible to and usable by individuals 

with disabilities, as required by 28 C.F.R. §36.401.

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

action. Plaintiff is entitled to have his reasonable attorneys’ fees, costs and expenses paid by 

Defendant, pursuant to 42 U.S.C. § 12205.

39. All of the above violations are readily achievable to modify in order to bring 

Premises or the Facility/Property into compliance with the ADA.

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40. In instance(s) where the 2010 ADAAG standard does not apply, the 1991 ADAAG 

standard applies and all of the violations listed in paragraph 18 herein can be applied to the 1991 

ADAAG standards.

41. Pursuant to 42 U.S.C. § 12188, this Court is vested with the authority to grant 

Plaintiff’s injunctive relief, including an order to alter the subject facility to make them readily 

accessible to and useable by individuals with disabilities to the extent required by the ADA and 

closing the Subject Facility until the requisite modifications are completed.

WHEREFORE, Plaintiff demands judgment against Defendant and requests the following 

injunctive and declaratory relief:

1. That this Court declares that Premises owned, operated 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 disabilities to the full extent 

required by Title III of the ADA;

3. That this Court enter an Order directing the Defendant to evaluate and neutralize 

their policies, practices and procedures toward persons with disabilities, for such 

reasonable time so as to allow the Defendant to undertake and complete corrective 

procedures to Premises;

4. That this Court award reasonable attorney’s fees, all costs (including, but not 

limited to the court costs and expert fees) and other 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.

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COUNT II 

BREACH OF CONTRACT

39. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1 through 22 

above as if fully stated herein.

40. On or about August 13, 2018, Plaintiff and Defendant entered into a Release and 

Settlement Agreement and Release. [Exhibit A] Through this settlement agreement, Defendant 

agreed to make modifications to Defendant’s Premises as outlined in the agreement. The 

Settlement Agreement and Release required Defendant to complete all modifications to the 

Premises by on or about April 13, 2019.

41. Plaintiff has performed all conditions precedent to be performed by him under the 

Agreement.

42. Since April 13, 2019, Defendant has failed to complete the modifications promised 

in the settlement agreement and failed to provide notice of completion of said modifications as 

required pursuant to the agreement. Specifically, Defendant has failed to address the following 

violations as listed in the agreement:

Men's Restrooms

c. Failure to provide sufficient clear floor space around a water closet without any 

obstructing elements in this space in violation of 2010 ADAAG §§4.22.3, 603, 

603.2.3, 604, 604.3 and 604.3.1. 

d. Failure to provide the proper insulation or protection for plumbing or other 

sharp or abrasive objects under a sink or countertop in violation of 2010 

ADAAG §§ 606 and 606.5. 

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e. Providing grab bars of improper horizontal length or spacing as required along 

the rear or side wall in violation of 2010 ADAAG §§ 604, 604.5, 604.5.1 and 

604.5.2. 

f. Failure to provide grab bars at 33 inches minimum and 36 inches maximum 

above the finished floor measured to the top of the gripping surface in violation 

of 2010 ADAAG §§ 609, 609.4 and 609.7. 

h. Failure to provide a coat hook that was previously positioned properly but is no 

longer in place for a person with a disability in violation of 2010 ADAAG §§ 

603, 603.4 and 308.

i. Providing an element or object that protrudes greater than 4” into a pathway or 

space of travel situated between 27” and 80” high in violation of 2010 ADAAG 

§§ 204, 307, 307.1, 307.2. 

l. Failure to provide proper signage for an accessible restroom or failure to 

redirect a person with a disability to the closest available accessible restroom 

facility in violation of 2010 ADAAG §§ 216, 216.2, 216.6, 216.8, 603, 703, 

703.1, 703.2, 703.5 and 703.7.2.1. 

Accessible Seating

m. Failure to provide seating for a person(s) with a disability that has the correct 

clear floor space for forward approach in violation of 2010 ADAAG §§ 902, 

902.2, 305 and 306. 

n. Failure to provide a sufficient amount of seating when 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. 

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Service Counter and Pay Area

o. Providing counter heights exceeding 36 inches making it impossible to service 

a person with a disability in violation of 2010 ADAAG §§ 904, 904.4, 904.4.1, 

904.4.2, 305 and 306. 

p. Failure to provide the correct opening width for a forward approach into a 

urinal, stall door or lavatory (sink) in violation of 2010 ADAAG §§ 305, 

305.7.1, 404, 605.3 and 606.2 

43. Plaintiff has been damaged by the defendant’s breach of the settlement agreement. 

Specifically, Plaintiff has had to retain the services of the undersigned attorney to pursue this action 

for breach of contract.

WHEREFORE, Plaintiff demands judgment against Defendant and requests the following 

injunctive and declaratory relief:

1. That this Court declares that Defendant has failed to comply the Settlement 

Agreement and Release;

2. That this Court enter an Order requiring Defendant to alter their facilities to make 

them accessible to and usable by individuals with disabilities to the full extent 

required by Title III of the ADA;

3. That this Court award reasonable attorney’s fees, all costs (including, but not 

limited to the court costs and expert fees) and other expenses of suit to the Plaintiff 

and as provided in the Settlement Agreement and Release; and,

4. That this Court award such other and further relief as it may deem necessary, just 

and proper.

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Dated July 1, 2020.

Sconzo Law Office, P.A.

3825 PGA Boulevard, Suite 207

Palm Beach Gardens, FL 33410

Telephone: (561) 729-0940

Facsimile: (561) 491-9459

By: /s/ Gregory S. Sconzo 

GREGORY S. SCONZO, ESQUIRE

Florida Bar No.: 0105553

Primary Email: greg@sconzolawoffice.com

Secondary Email: alexa@sconzolawoffice.com

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