UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

 CASE NO.:

HOWARD COHAN,

Plaintiff,

vs. INJUNCTIVE RELIEF SOUGHT

FIRST COAST ENERGY, L.L.P.

a Florida Limited Liability Partnership,

d/b/a SUNOCO

Defendant(s).

____________________________________/

COMPLAINT

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

hereby files this Complaint and sues FIRST COAST ENERGY, L.L.P., a Florida Limited Liability 

Partnership, d/b/a SUNOCO (“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 Consent Decree (copy attached as Exhibit A) reached in the case of HOWARD COHAN v. 

FIRST COAST ENERGY, L.L.P., 9:17-CV-61037-FAM (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.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 1 of 14
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 1400 North Federal Highway, 

Pompano Beach, FL 33062, (“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 cause 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 2 of 14
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 March 2, 2017, Plaintiff visited Defendant’s Premises. At the time of Plaintiff’s 

visit to the Premises on March 2, 2017, Plaintiff required the use of fully accessible restrooms; 

fully accessible paths of travel throughout the facility; fully accessible service and eating areas; 

and fully accessible and properly marked parking for individuals with disabilities. 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 May 25, 2017, Plaintiff filed a lawsuit against Defendant seeking to 

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

COHAN v. FIRST COAST ENERGY, LLP, 0:17-CV-61037-FAM (S.D. Fla.).

11. On or about March 16, 2018, Plaintiff’s suit was dismissed upon Joint Motion for 

Approval and Entry of Consent Decree and Dismiss Action With Prejudice. 

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

Decree (Exhibit A) on or about December 1, 2017.

13. The Consent Decree required Defendant to complete all modifications to the 

Premises by on or about December 1, 2018.

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

required by the ADA and the Consent Decree and Defendant has failed to give notice of any 

reasons or documentation for non-compliance. 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 3 of 14
15. Plaintiff again personally visited Defendant’s Premises on December 6, 2018 and 

February 23, 2020. (and prior to instituting this action).

16. Plaintiff required the use of fully accessible restrooms. Plaintiff 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”.

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.

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 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 4 of 14
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.

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 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 5 of 14
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,

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 non-productivity.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 6 of 14
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).

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 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 7 of 14
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:

Unisex Restroom 

a. 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.

b. Failure to provide the proper spacing between a grab bar and an object projecting 

out of the wall in violation of 2010 ADAAG §§ 609, 609.1 and 609.3.

c. Failure to provide toilet paper dispensers in the proper position in front of the water 

closet or at the correct height above the finished floor in violation of 2010 ADAAG 

§§ 604, 604.7 and 309.4.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 8 of 14
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.

e. 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.

f. Failure to provide a marked path of travel connecting accessible site arrival points 

including disabled parking to the store, building or facility in violation of 2010 

ADAAG §§ 206, 206.1, 206.2, 206.2.1, 206.2.2, 402 and 403.

g. Failure to provide paper towel dispenser at the correct height above the finished 

floor in violation of 2010 ADAAG §§ 606, 606.1 and 308.

h. 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

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.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 9 of 14
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.

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 32 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:

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 10 of 14
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.

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 December 1, 2017, Plaintiff and Defendant entered into a Consent 

Decree. (Exhibit A). Through this settlement agreement, Defendant agreed to make modifications 

to Defendant’s Premises as outlined in the agreement. The Consent Decree required Defendant to 

complete all modifications to the Premises by on or about June 1, 2019.

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

Agreement.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 11 of 14
42. Since June 1, 2019, Defendant has failed to complete the modifications promised 

in the Consent Decree. Specifically, Defendant has failed to address the following violations:

Unisex Restroom

a. Insulate all pipes, valves, supply lines and any sharp objects if present under the 

accessible lavatory in the men’s toilet room in accordance with Section 606.5 of 

the 2010 Standards.

b. Modify the rear grab bar so that it is a minimum of 36 inches long and extend at 

least 12 inches to the side wall and at least 24 inches towards the lavatory from the 

centerline of the accessible water closet. Modify the side grab bar so that it starts 

no more than 12 inches from the rear wall and extends to at least 54 inches along 

the side wall. The rear and side grab bar shall also be mounted so that their bottoms 

are at least 1 1⁄2 inches below and their tops are at least 12 inches above any 

obstruction, such as the top of a water closet tank lid or any mounted dispensers. 

The top gripping surface of the grab bars shall be between 33 and no higher than 

36” inches above the finished floor.

c. Modify the toilet paper dispenser so that the opening of its first outlet is 7 to 9 

inches in front of the water closet and 1 1⁄2 inches below or 12 inches above the grab 

bars and the outlet of the dispenser is at least 15 inches minimum and 48 inches 

maximum above the finished floor, in accordance with Sections 604.7 and 609.3

d. Provide a restroom sign with a pictogram showing The International Symbol of 

Accessibility on the latch side of toilet room along with raised letters and Braille in 

accordance with 216 and 703 of the 2010 Standards. The sign shall be located 48 

inches minimum above the finish floor or ground surface, measured from the 

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 12 of 14
baseline of the lowest tactile character and 60 inches maximum above the finish 

floor or ground surface, measured from the baseline of the highest tactile character.

e. Remove the water bottle stacks or the ice cream freezer from one of the entrances 

to provide the proper maneuvering at an exit door from the pull side in accordance 

with 404.2.4 of the 2010 ADA Standards.

f. Provide a marked travel path from the disabled parking spot to the accessible store 

entrance/exit as cited above in accordance with Sections 206, 402 and 403 of the 

2020 ADA Standards.

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 with 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.

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 13 of 14
Dated July 10, 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

Service Email: sconzolaw@gmail.com

Primary Email: greg@sconzolawoffice.com

Case 9:20-cv-81101-DMM Document 1 Entered on FLSD Docket 07/10/2020 Page 14 of 14