UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 CASE NO.:

HOWARD COHAN,

Plaintiff,

vs. INJUNCTIVE RELIEF SOUGHT

ODYSSEY PROPCO VI, LLC

a Foreign Limited Liability Company

d/b/a AC HOTEL MIAMI MIDTOWN

Defendant(s).

____________________________________/

COMPLAINT

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

hereby files this Complaint and sues ODYSSEY PROPCO VI, LLC, a Foreign Limited Liability 

Company, d/b/a AC HOTEL MIAMI MIDTOWN (“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 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.

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2. Venue is proper in this Court, Miami 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 Dade County, Florida.

PARTIES

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

residing in Palm Beach County, Florida.

4. 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 3400 Biscayne Blvd., Miami FL 

33137, (“Premises”), and is the owner of the improvements where Premises is located.

5. Defendant is authorized to conduct, and is in fact conducting, business within the 

state of Florida.

6. 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 

sudden onsets of severe pain and substantially limit Plaintiff’s major life activities. At the time of 

Plaintiff’s visit to the Premises on August 4, 2022, (and prior to instituting this action), Plaintiff 

suffered from a “qualified disability” under the ADA, and required the use of fully accessible 

service and eating areas and fully accessible restrooms. Plaintiff personally visited the Premises, 

but was denied full and equal access and full and equal enjoyment of the facilities and amenities 

within the Premises, even though he would be classified as a “bona fide patron”.

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7. Plaintiff, in his individual capacity, 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.

8. 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.

9. 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.

10. 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.

11. 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 

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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.

12. 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.

VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT

13. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1 through 12

above as if fully stated herein.

14. 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).

15. 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;

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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.

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

16. 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;

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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).

17. 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. 

18. 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).

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

facilities and therefore suffered an injury in fact.

20. 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.

21. 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 

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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.

22. 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:

Bar and Bar Area Lobby

a. 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. 

b. Failure to provide accessible seating for person(s) with a disability at a bar or 

adjacent table in the bar area, recreational area or a table area adjacent to a pool for 

food or beverage service, or at a computer work surface such as in a business center, 

in violation of 2010 ADAAG §§ 902, 902.1, 902.2, 902.3, 305, 306 and/or §4.32.4 

of the 1991 ADA Standards. 

c. 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. 

d. 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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Men's Restroom Lobby - General

e. Providing a gate or door with a continuous opening pressure of greater than 5 lbs. 

exceeding the limits for a person with a disability in violation of 2010 ADAAG §§ 

404, 404.1, 404.2, 404.2.9 and 309.4. 

f. 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. (trash can)

g. Failure to provide a urinal designed for a person with a disability where the rim 

height is no more than 17 inches from the finished floor in violation of 2010 

ADAAG §§ 605 and 605.2. 

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

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

Men's Restroom Lobby - Accessible Stall

i. 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. (trash can)

j. Failure to provide the water closet in the proper position relative to the side wall or 

partition in violation of 2010 ADAAG §§ 604 and 604.2. 

k. 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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l. 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 

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

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

n. Failure to provide the correct spacing for a forward or parallel approach to an 

element due to a wall or some other obstruction in violation of 2010 ADAAG §§ 

305 and 306. (trash can)

Level P Men's Restroom - General

o. Providing a gate or door with a continuous opening pressure of greater than 5 lbs. 

exceeding the limits for a person with a disability in violation of 2010 ADAAG §§ 

404, 404.1, 404.2, 404.2.9 and 309.4. 

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

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

Level P Men's Restroom - Accessible Stall

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

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

r. 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 

s. 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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t. 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.

Bar at Pool and Pool Area

u. 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. 

v. Failure to provide accessible seating for person(s) with a disability at a bar or 

adjacent table in the bar area, recreational area or a table area adjacent to a pool for 

food or beverage service, or at a computer work surface such as in a business center, 

in violation of 2010 ADAAG §§ 902, 902.1, 902.2, 902.3, 305, 306 and/or §4.32.4 

of the 1991 ADA Standards. 

w. 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. 

x. 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.

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

the specific violations set forth in paragraph 22 herein.

24. 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.

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25. 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.

26. 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. 

27. 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.

28. 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.

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

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

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

standard applies and all of the violations listed in paragraph 22 herein can be applied to the 1991 

ADAAG standards.

31. 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 

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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.

Dated October 14, 2022.

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

SAMANTHA L. SIMPSON, ESQ.

Florida Bar No.: 1010423

Primary Email: greg@sconzolawoffice.com

Primary Email: samantha@sconzolawoffice.com 

Secondary Email: alexa@sconzolawoffice.com 

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