UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

HELEN SWARTZ, Individually,

Plaintiff,

vs.

CG FAIRWINDS LLC,

a Florida Limited Liability Company, 

Defendant.

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Case No.

COMPLAINT

(Injunctive Relief Demanded)

Plaintiff, HELEN SWARTZ, Individually, on her behalf and on behalf of all other 

mobility impaired individuals similarly situated, (sometimes referred to as “Plaintiff”), hereby 

sues the Defendant, CG FAIRWINDS LLC, a Florida Limited Liability Company (sometimes 

referred to as “Defendant”), for Injunctive Relief, and attorney’s fees, litigation expenses, and 

costs pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

(“ADA”).

COUNT I

1. Plaintiff, Helen Swartz, is an individual residing in Miami Beach, FL, in the 

County of Miami-Dade.

2. Defendant’s property, The Lennox Hotel, is located at 1900 Collins Avenue, 

Miami Beach, FL, in the County of Miami-Dade.

3. Venue is properly located in the Southern District of Florida because venue lies in 

the judicial district of the property situs. The Defendant’s property is located in and the 

Defendant does business within this judicial district. 

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4. Pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, this Court has been given 

original jurisdiction over actions which arise from the Defendant’s violations of Title III of the 

Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See also 28 U.S.C. § 2201 and § 

2202. The Court has supplemental jurisdiction over the State Law Claims, pursuant to 28 

U.S.C. 1367. 

5. Plaintiff Helen Swartz is a Florida resident, is sui juris, and qualifies as an 

individual with disabilities as defined by the ADA. Helen Swartz suffers from multiple 

sclerosis. She was diagnosed twenty years ago and as a result of losing her ability to ambulate, 

she uses a mobility scooter. Family and friends often visit her in the Miami area and she enjoys 

visiting with them at the various hotels in which they stay. Ms. Swartz sometimes stays in hotels 

with them to eliminate the need to return home late, as fatigue is a significant component of the 

disease. She and her husband also enjoy celebrating special events such as birthdays and 

anniversaries by enjoying hotel restaurants and spending the night to use spa amenities. Ms. 

Swartz’s granddaughter enjoys using the hotel pools when visiting Miami and Ms. Swartz enjoys 

treating her granddaughter to overnight stays in hotels in Miami.

6. Helen Swartz visited the property which forms the basis of this lawsuit from June 

17 through June 18, 2020. Ms. Swartz has reservations to return to the property from March 22, 

2021 through March 23, 2021, to visit with friends who winter in Miami, to avail herself of the 

goods and services available at the property, and to assure herself that this property is in 

compliance with the ADA so that she and others similarly situated will have full and equal 

enjoyment of the property without fear of discrimination.

7. The Plaintiff has encountered architectural barriers at the subject property. The 

barriers to access at the properties have impaired her ability to access the hotel safely, to safely 

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use the restroom and other areas in the guestroom which the hotel deemed accessible, to safely 

and comfortably enjoy the restaurants, to safely use restrooms throughout the hotel, to safely 

enjoy the pool area and spa.

8. Defendant owns, leases, leases to, or operates a place of public accommodation as 

defined by the ADA and the regulations implementing the ADA, 28 CFR 36.201(a) and 36.104. 

Defendant is responsible for complying with the obligations of the ADA. The place of public 

accommodation that the Defendant owns, operates, leases or leases to is known as The Lennox 

Hotel, and is located at 1900 Collins Avenue, Miami Beach, FL.

9. Helen Swartz has a realistic, credible, existing and continuing threat of 

discrimination from the Defendant’s non-compliance with the ADA with respect to this property 

as described but not necessarily limited to the allegations in paragraph 11 of this Complaint. 

Plaintiff has reasonable grounds to believe that she will continue to be subjected to 

discrimination in violation of the ADA by the Defendant. Helen Swartz desires to visit The 

Lennox Hotel, not only to avail herself of the goods and services available at the property, but to 

assure herself that this property is in compliance with the ADA so that she and others similarly 

situated will have full and equal enjoyment of the property without fear of discrimination.

10. The Defendant has discriminated against the individual Plaintiff by denying her 

access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages 

and/or accommodations of the buildings, as prohibited by 42 U.S.C. § 12182 et seq.

11. The Defendant has discriminated, and is continuing to discriminate, against the 

Plaintiff in violation of the ADA by failing to, inter alia, have accessible facilities by January 26, 

1992 (or January 26, 1993, if Defendant has 10 or fewer employees and gross receipts of 

$500,000 or less). A preliminary inspection of The Lennox Hotel has shown that violations 

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exist. These violations that Helen Swartz has personally encountered or observed, and which 

were verified by an ADA expert, include, but are not limited to: 

a. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, an appropriate clearance around the water closet is not provided. This is in 

violation of section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult for the plaintiff to access the water closet.

b. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, the flush control is behind the water closet. This is in violation of section 

806.2.4 of the 2010 Standards for Accessible Design: 28 CFR §36.304. This condition 

made it difficult for the plaintiff to access the water closet.

c. In the accessible guestroom bathroom, which hotel deemed an 

accessible guestroom, the toilet paper dispenser is not properly located. This is in 

violation of section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult for the plaintiff to access the toilet paper 

dispenser.

d. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, the water closet is too high. This is in violation of section 806.2.4 of the

2010 Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult 

for the plaintiff to access the toilet.

e. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, the lavatory is too high. This is in violation of section 806.2.4 of the 2010 

Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult for 

the plaintiff to access the lavatory.

f. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, appropriate grab bars are not provided in the shower. This is in violation of 

section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR §36.304. This 

condition made it difficult for the plaintiff to access the shower.

g. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, a Standard Roll-In Type Shower Compartment is not provided. This is in 

violation of section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult for the plaintiff to access the shower.

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h. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, the shower unit in the roll-in shower is out of reach. This is in violation of 

section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR §36.304. This 

condition made it difficult for the plaintiff to access the facility.

i. In the accessible guestroom bathroom, which hotel deemed an accessible 

guestroom, the shower spray unit in the roll-in shower does not have an on/off control 

with a non-positive shut-off. This is in violation of section 806.2.4 of the 2010 

Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult the 

plaintiff to access the facility. 

j. In the accessible guestroom bathroom, which hotel deemed an 

accessible guestroom, the hook is out of reach to a person in a wheelchair. This is in 

violation of section 806.2.4 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult the plaintiff to access the facility. 

k. In the accessible guestroom, which hotel deemed an accessible 

guestroom, the carpet is not securely attached. This is in violation of section 302.2 of 

the 2010 Standards for Accessible Design: 28 CFR §36.304. This condition made it 

difficult for the plaintiff to access the facility.

l. In the accessible guestroom, which hotel deemed an accessible 

guestroom, the closet rod is out of reach to a person in a wheelchair. This is in violation 

of section 811.3 of the 2010 Standards for Accessible Design: 28 CFR §36.304. This 

condition made it difficult the plaintiff to access the facility.

m. In the accessible guestroom, which hotel deemed an accessible 

guestroom, the window controls require tight grasping, pinching, or twisting of the wrist 

to operate. This is in violation of section 309.4 of the 2010 Standards for Accessible

Design: 28 CFR §36.304. This condition made it difficult the plaintiff to access the 

facility.

n. In the accessible guestroom, which hotel deemed an accessible 

guestroom, the door hardware is out of reach to a person in a wheelchair. This is in 

violation of section 404.2.7 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult the plaintiff to access the facility.

o. In the accessible guestroom, which hotel deemed an accessible 

guestroom, the light fixtures above the bed are out of reach to a person in a 

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wheelchair. This is in violation of section 308 of the 2010 Standards for Accessible

Design: 28 CFR §36.304. This condition made it difficult the plaintiff to access the 

facility.

p. In the accessible guestroom, which hotel deemed an accessible 

guestroom, a table blocks access to the HVAC. This is in violation of section 308 of the

2010 Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult 

the plaintiff to access the facility.

q. In the accessible guestroom, which hotel deemed an accessible 

guestroom, an appropriate clearance is not provided to access the desk. This is in 

violation of section 306 of the 2010 Standards for Accessible Design: 28 CFR §36.304. 

This condition made it difficult the plaintiff to access the facility.

r. In the accessible guestroom, which hotel deemed an accessible 

guestroom, items in the guestroom and bathroom are out of reach to a person using a 

wheelchair. This is in violation of sections 306, 308, 806 and 811 of the 2010 Standards

for Accessible Design: 28 CFR §36.304. This condition made it difficult for the Plaintiff 

to use the facilities.

s. Accessible seating is not provided around the hotel. This is in violation

of sections 226 and 902 of the 2010 Standards for Accessible Design. This condition 

made it extremely difficult for the Plaintiff access the assorted bars and tables; 28 CFR 

§36.202 & §36.304.

t. In the hotel’s accessible toilet compartments, the signage is out of reach 

to a person in a wheelchair. This is in violation of section 703.4.1 of the 2010 

Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult for 

the plaintiff to access the facility.

u. In the hotel’s accessible toilet compartment by the restaurant, the pipe 

underneath the lavatory is exposed. This is in violation of section 606.5 of the 2010 

Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult for 

the plaintiff to access the facility.

v. In the hotel’s accessible toilet compartment by the restaurant, the flush 

control is behind the water closet. This is in violation of section 604.6 of the 2010 

Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult for 

the plaintiff to access the facility.

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w. In the hotel’s accessible toilet compartments, the coat hooks on the doors 

are out of reach to a person in a wheelchair. This is in violation of section 603.4 of the

2010 Standards for Accessible Design: 28 CFR §36.304. This condition made it difficult 

for the plaintiff to access the facility.

x. In the hotel’s accessible toilet compartment by the restaurant, a 

maneuvering clearance is not provided to exit the toilet compartment. This is in 

violation of section 404.2.4 of the 2010 Standards for Accessible Design: 28 CFR

§36.304. This condition made it difficult for the plaintiff to access the facility.

y. In the hotel pool accessible toilet compartment, the toilet paper dispenser 

is not positioned properly. This is in violation of section 604.7 of the 2010 Standards

for Accessible Design: 28 CFR §36.304. This condition made it difficult for the plaintiff 

to access the facility.

z. In the hotel pool accessible toilet compartment, the baby changer 

opening is out of reach to a person in a wheelchair. This is in violation of section 308 

of the 2010 Standards for Accessible Design: 28 CFR §36.304. This condition made it 

difficult for the plaintiff to access the facility.

aa. The signage is on the pull side of the accessible toilet compartment 

doors. This is in violation of section 703.4.2 of the 2010 Standards for Accessible

Design: 28 CFR §36.304. This condition made it difficult for the plaintiff to access the 

facility.

bb. Directional signage is not provided to the accessible ramps or the hotel’s 

accessible entrance. This is in violation of section 216.3 of the 2010 Standards for 

Accessible Design: 28 CFR §36.304. This condition made it difficult for the plaintiff to 

access the facility. Because there was no directional signage to access the ramps around 

the hotel, the plaintiff had to have the hotel show her the location of the accessible 

ramps.

cc. The ramp does not have appropriate handrails. This is in violation of 

section 405 of the 2010 Standards for Accessible Design: 28 CFR §36.304. This 

condition made it difficult for the plaintiff to access the facility.

dd. The hotel does not provide the required amount of compliant accessible

guest rooms, and the accessible rooms are not dispersed among the various classes of 

accommodations. This is in violation of section 224 of the 2010 Standards for

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Accessible Design: 28 CFR §36.304. This denies to Plaintiff the full and equal 

opportunity to stay at the subject hotel. 28 CFR §36.302(e)(1)

ee. The accessible features of the facility are not maintained, creating 

barriers to access for the Plaintiff, as set forth herein, in violation of 28 CFR §36.211.

12. All of the foregoing violations are also violations of the 1991 Americans with 

Disability Act Accessibility Guidelines, and the 2010 ADA Standards for Accessible Design 

(ADAAG), as promulgated by the U.S. Department of Justice. 

13. The discriminatory violations described in paragraph 11 are not an exclusive list 

of the Defendant’s ADA violations. Plaintiff requires the inspection of the Defendant’s place of 

public accommodation in order to photograph and measure all of the discriminatory acts 

violating the ADA and all of the barriers to access. The individual Plaintiff, and all other 

individuals similarly situated, have been denied access to, and have been denied the benefits of 

services, programs and activities of the Defendant’s buildings and its facilities, and have 

otherwise been discriminated against and damaged by the Defendant because of the Defendant’s 

ADA violations, as set forth above. The individual Plaintiff, and all others similarly situated, 

will continue to suffer such discrimination, injury and damage without the immediate relief 

provided by the ADA as requested herein. In order to remedy this discriminatory situation, the 

Plaintiff requires an inspection of the Defendant’s place of public accommodation in order to 

determine all of the areas of non-compliance with the Americans with Disabilities Act.

14. Defendant has discriminated against the individual by denying her access to full 

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

accommodations of its place of public accommodation or commercial facility in violation of 42 

U.S.C. § 12181 et seq. and 28 CFR 36.302 et seq. Furthermore, the Defendant continues to 

discriminate against the Plaintiff, and all those similarly situated by failing to make reasonable 

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modifications in policies, practices or procedures, when such modifications are necessary to 

afford all offered goods, services, facilities, privileges, advantages or accommodations to 

individuals with disabilities; and by failing to take such efforts that may be necessary to ensure 

that no individual with a disability is excluded, denied services, segregated or otherwise treated 

differently than other individuals because of the absence of auxiliary aids and services.

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

Considering the balance of hardships between the Plaintiff and Defendant, a remedy in equity is 

warranted. Furthermore, the public interest would not be disserved by a permanent injunction. 

Plaintiff has retained the undersigned counsel and is entitled to recover attorney’s fees, costs and 

litigation expenses from the Defendant pursuant to 42 U.S.C. § 12205 and 28 CFR 36.505.

16. Defendant is required to remove the existing architectural barriers to the 

physically disabled when such removal is readily achievable for its place of public 

accommodation that have existed prior to January 26, 1993, 28 CFR 36.304(a); in the alternative, 

if there has been an alteration to Defendant’s place of public accommodation since January 26, 

1992, then the Defendant is required to ensure to the maximum extent feasible, that the altered 

portions of the facility are readily accessible to and useable by individuals with disabilities, 

including individuals who use wheelchairs, 28 CFR 36.402; and finally, if the Defendant’s 

facility is one which was designed and constructed for first occupancy subsequent to January 26, 

1993, as defined in 28 CFR 36.401, then the Defendant’s facility must be readily accessible to 

and useable by individuals with disabilities as defined by the ADA. 

17. Notice to Defendant is not required as a result of the Defendant’s failure to cure 

the violations by January 26, 1992 (or January 26, 1993, if Defendant has 10 or fewer employees 

and gross receipts of $500,000 or less). All other conditions precedent have been met by 

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Plaintiff or waived by the Defendant.

18. Pursuant to 42 U.S.C. § 12188, this Court is provided with authority to grant 

Plaintiff Injunctive Relief, including an order to require the Defendant to alter The Lennox Hotel

to make those facilities readily accessible to and useable by the Plaintiff and all other persons 

with disabilities as defined by the ADA; or by closing the facility until such time as the 

Defendant cures its violations of the ADA. The Order shall further require the Defendant to 

maintain the required assessable features on an ongoing basis, and to require the institution of a 

policy that requires Defendant to maintain its accessible features.

19. A pre-suit PACER search revealed that an unrelated case was filed in the 

Southern District of Florida on December 31, 2019 (Emilio Pinero v. CG Fairwinds LLC d/b/a 

The Fairwind Hotel, 1:19-cv-25335-MGC). The only similarity between the two cases is that 

the defendant is the same. The properties are different and the ADA violations are totally 

different.

WHEREFORE, Plaintiff respectfully requests:

a. The Court issue a Declaratory Judgment that determines that the 

Defendant at the commencement of the subject lawsuit is in violation of Title III of the 

Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

b. Injunctive relief against the Defendant including an order to make all 

readily achievable alterations to the facility; or to make such facility readily accessible to 

and usable by individuals with disabilities to the extent required by the ADA; and to 

require the Defendant to make reasonable modifications in policies, practices or 

procedures, when such modifications are necessary to afford all offered goods, services, 

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facilities, privileges, advantages or accommodations to individuals with disabilities; and

by failing to take such steps that may be necessary to ensure that no individual with a 

disability is excluded, denied services, segregated or otherwise treated differently than 

other individuals because of the absence of auxiliary aids and services.

c. An award of attorney’s fees, costs and litigation expenses pursuant to 42 

U.S.C. § 12205.

d. Such other relief as the Court deems just and proper, and/or is allowable 

under Title III of the Americans with Disabilities Act.

COUNT II

Negligence

19. Plaintiff realleges all allegations heretofore set forth.

20. Defendant, through its activities and past ventures and experience, knew or 

reasonably should have known its duties to the impaired. Defendant had a duty to Plaintiff to 

remove ADA accessibility barriers, and adopt policies and procedures, as mandated by the ADA, 

so that Plaintiff, as a disabled individual would have full and equal access to the subject public 

accommodation.

21. Defendant breached this duty.

22. Defendant is or should be aware that, historically, society has tended to isolate 

and segregate individuals with disabilities, and, despite some improvements, such forms of 

discrimination against individuals with disabilities continue to be a serious and pervasive social

problem.

23. Discrimination against individuals with disabilities persists in the use and 

enjoyment of public accommodations.

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24. The Nation’s proper goals regarding individuals with disabilities are to assure 

equality of opportunity, full participation, independent living, and economic self-sufficiency for 

such individuals.

25. The ADA has been the law of the land since 1991, but Defendant has negligently 

denied Plaintiff her civil rights by maintaining architectural barriers that preclude the Plaintiff 

from the full and equal use of the subject premises, and that endangered and continues to 

endanger Plaintiff’s safety. This negligent conduct of the Defendant has also caused Plaintiff 

damage by virtue of segregation, discrimination, relegation to second class citizen status and the 

pain, suffering and emotional damages inherent to discrimination and segregation and other

damages to be proven at trial.

WHEREFORE, Plaintiff prays for relief, as follows:

A. For finding of negligence; and

B. For damages in an amount to be proven at trial; and

C. For such other and further relief as the Court may deem just and proper. 

Dated: June 24, 2020 Respectfully submitted,

/s/ Lawrence A. Fuller

Lawrence A. Fuller, Esq. (FBN 0180470)

FULLER, FULLER & ASSOCIATES, P.A.

12000 Biscayne Blvd., Suite 502

North Miami, FL 33181

(305) 891-5199

(305) 893-9505 - Facsimile

lfuller@fullerfuller.com

Attorney for Plaintiff Helen Swartz

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