UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF FLORIDA 

DAVID POSCHMANN, 

 

Plaintiff, 

v. 

 CASE NO. 

 

EAST PASS INVESTORS, LLC, 

 

 Defendant. 

_________________________________/ 

COMPLAINT

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

sues the Defendant, EAST PASS INVESTORS, 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 

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

28 U.S.C. § 1331 and §1343 and Plaintiff’s 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) 

(2) because Defendant is a resident of this district and the facility, whose online 

reservation system is at issue herein, is situated in this district. 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 1 of 8
2

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 has a valid disabled parking 

permit from the Florida Department of Highway Safety and Motor Vehicles. 

Defendant's online vacation rental reservation system fails to comply with any of 

the requirements of 28 C.F.R. §36.302(e) and therefore Plaintiff's 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 its online 

reservation system. Plaintiff intends to visit the online reservation system for 

Defendant's place of lodging in the near future, and within thirty (30) days, to book 

a vacation rental 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 Emerald Grande located at 

10 Harbor Boulevard in Destin, Florida ("the Emerald"). The online reservation 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 2 of 8
3

system for the vacation rentals at the Emerald is found at 

www.emeraldgrande.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)(1)-(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: 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 3 of 8
4

 ''(1) Reservations made by places of 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." 

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

leases and operates a place of lodging pursuant to the ADA. The Emerald has an 

online reservation system whereby potential patrons may reserve a vacation rental. 

The reservation system is subject to the requirements of 28 C.F.R.§ 36.302(e) and 

Defendant is responsible for said compliance. 

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)(1). 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).

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 4 of 8
5

 9. Most recently, during August, 2020 Plaintiff attempted to specifically 

identify and book a guaranteed reservation for an accessible vacation rental at the 

Emerald through the Emerald’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. Marod Supermarkets, 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 Emerald’s online reservation 

system due to the substantive ADA violations contained thereon. 

 12. The online reservation system for the Emerald 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 Emerald’s online reservation system he 

tried to make a reservation for an accessible vacation rental at the Emerald, since 

he requires an accessible vacation rental due to the amputation of his right leg, but 

it was not possible to make such a reservation. It was possible to reserve a vacation 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 5 of 8
6

rental 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 vacation rentals during the same hours and in the same 

manner as individuals who do not need accessible vacation rentals. This constitutes 

a violation of 28 C.F.R.§ 36.302(e)(1)(i). When Plaintiff visited the Emerald’s 

online reservation system he searched the site for the identification and 

descriptions of accessible features at the Emerald and vacation rentals offered 

through the reservation service so that he could assess independently whether the 

Emerald or a specific vacation rental met his accessibility needs in light of his 

disability but the reservation 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 reservation service does not describe any accessible vacation rental and 

does not, in turn, allow the reserving of such accessible vacation rental, the 

Website cannot hold such unavailable accessible vacation rental in the reservation 

system until all other units have been rented, block such unavailable accessible 

vacation rentals from the system once reserved, and guaranty that such unavailable 

vacation rentals will be held for the reserving customer as required by sections (iii) 

- (v) respectively. 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 6 of 8
7

 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 the Emerald 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. 

 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 its online reservation system in 

accordance with the requirements set forth in paragraph 7 above.2

2 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 reservations system. As rates and classes of hotel rooms 

at the Emerald, and the number and type of vacation rentals, beds, accommodations and amenities offered in the 

various unit types change from time to time, the availability of accessible units must be re-dispersed across these 

various price points, classes, as well as across units 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 Emerald, the 

online reservations system must continuously be updated to properly reflect and describe Defendant's compliance 

with the substantive ADA Standards regarding accessible vacation rentals in accordance with 28 C.F.R. 

36.302(e)(1).

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 7 of 8
8

 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 Emerald 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 

Suite 302 

Boca Raton, Florida 33431 

Telephone (561) 994-6922 

Facsimile (561) 994-0837 

Attorneys for Plaintiff 

Case 3:20-cv-05790-RV-HTC Document 1 Filed 09/03/20 Page 8 of 8