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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA 

CASE NO.:

GARFIELD SPENCE

Plaintiff,

vs. INJUNCTIVE RELIEF SOUGHT

BARCLAY SQUARE ASSOCIATES LTD.

Defendant.

/

 COMPLAINT

Plaintiff, GARFIELD SPENCE (“Plaintiff”), by and through the undersigned counsel, 

hereby files this Complaint and sues BARCLAY SQUARE ASSOCIATES LTD. (referred to as 

“Defendant”) a for profit company, 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.

2. Venue is proper in this Court, 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 

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

PARTIES

3. Plaintiff, GARFIELD SPENCE is sui juris and is a resident of the State of 

Florida.

4. Upon information and belief, Defendant is the lessee, operator, owner and/or

lessor of the Real Property, which is subject to this suit, and is located at 2902 Jog Rd. 

Greenacres, FL 33467 (“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 disabilities and is a double amputee 

which results in absolutely no use of the legs and requires him to use and remain in a wheelchair. 

The above listed disability 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 in September

of 2022 (and prior to instituting this action), Plaintiff suffered from a “qualified disability” under 

the ADA, and required the use of fully accessible parking spaces 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 and amenities within the Premises, 

even though he would be classified as a “bona fide patron”.

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 

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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 noncompliance 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, 

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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;

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

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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.

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

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

discrimination against individuals with disabilities;

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

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against individuals with disabilities; and

h. 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 its

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, Office 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 

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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, Defendants are in violation of

42 USC § 12182 et. seq. and the 2010 American Disabilities Act Standards et. seq., and is 

discriminating against Plaintiff as a result of but not limited to, inter alia, the following specific

violations:

i. Across the vehicular way from Mike’s Wings and Seafood, the ground surfaces 

of the access aisle have vertical rises in excess of 1⁄4 (one quarter) inch in height, 

are not stable or slip resistant, have broken or unstable surfaces or otherwise 

fail to comply with Section 502.4, 302 and 303 of the 2010 ADAAG standards. 

This barrier to access would make it dangerous and difficult for Plaintiff to 

access the units of the Property from this accessible parking space.

ii. Across the vehicular way from Mike’s Wings and Seafood, towards the end of 

the ground surfaces of the accessible space have vertical rises in excess of 1⁄4 

(one quarter) inch in height, are not stable or slip resistant, have broken or 

unstable surfaces or otherwise fail to comply with Section 502.4, 302 and 303 

of the 2010 ADAAG standards. This barrier to access would make it dangerous 

and difficult for Plaintiff to access the units of the Property from this accessible 

parking space.

iii. Leading from that accessible parking space located across the vehicular way 

from Mike’s Wings and Seafood, the access route directly in front of the ramp 

next to the truncated domes has a vertical rise in excess of 1⁄4 inch along the 

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accessible route or path in violation of Section 303.2 of the 2010 ADAAG 

standards. This barrier to access would make it dangerous and difficult for 

Plaintiff to access public features of the Property as vertical rise in excess of 1⁄4 

inch may cause Plaintiff’s wheelchair to snag on the vertical rise and tip over.

iv. Leading to the accessible entrance of Mike’s Wings and Seafood from the 

accessible parking space across the vehicular way, the Property has an 

accessible ramp that lacks finished edges or edge protection and/or is otherwise 

in violation of section 405.9 of the 2010 ADAAG standards. This barrier to 

access would exposes Plaintiff to increased risk of injury for if the wheelchair 

should fall of the side edge of the ramp, the lack of edge protection would likely 

cause Plaintiff to tip and incur injury.

v. Leading to the accessible entrance of Mike’s Wings and Seafood from the 

accessible parking space across the vehicular way, the accessible ramp has a 

cross slope that is steeper than 1:48 in violation of section 405.3 of the 2010 

ADAAG standards. This barrier to access exposes Plaintiff to increased danger 

of tipping over as a cross-slope in excess of 1:48 is dangerous, and this 

excessive cross-slope is made even more dangerous given the fact it is on a 

sloped surface of a ramp and this particular accessible ramp has no edge 

protection.

vi. At Unit 2986, there is a doorway threshold with a vertical rise in excess 

approximately 3⁄4 inch and does not contain a bevel with a maximum slope of 

1:2 in violation of section 404.2.5 of the 2010 ADAAG standards. This barrier 

to access would make it dangerous and difficult for Plaintiff to access the 

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interior of the Property at this location as the vertical rise at the door threshold 

could potentially cause Plaintiff to tip over when attempting to enter. 

Moreover, this barrier to access is made more difficult by the fact that it is in 

the doorway and Plaintiff would be required to hold the door open with one 

hand while attempt to the “push” the wheel of the wheelchair over the vertical 

rise.

vii. At Unit 2958, there is a doorway threshold with a vertical rise in excess 

approximately 3⁄4 inch and does not contain a bevel with a maximum slope of 

1:2 in violation of section 404.2.5 of the 2010 ADAAG standards. This barrier 

to access would make it dangerous and difficult for Plaintiff to access the 

interior of the Property at this location as the vertical rise at the door threshold 

could potentially cause Plaintiff to tip over when attempting to enter. 

Moreover, this barrier to access is made more difficult by the fact that it is in 

the doorway and Plaintiff would be required to hold the door open with one 

hand while attempt to the “push” the wheel of the wheelchair over the vertical 

rise.

viii. Due to the barriers to access identified in (vi) and (vii) above, not all entrance 

doors and doorways comply with section 404 of the 2010 ADAAG standards, 

this is a violation of section 206.4 of the 2010 ADAAG standards. This barrier 

to access would make it difficult for Plaintiff to access the units of the Property.

ix. Nearest Saigon Tokyo, the ground surfaces at the base of the accessible ramp 

which provides the access route from nearby accessible parking spaces, have 

vertical rises of approximately an inch in height, are not stable or slip resistant, 

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have broken or unstable surfaces or otherwise fail to comply with Sections 302, 

303 and 405.4 of the 2010 ADAAG standards. This barrier to access would 

make it dangerous and difficult for Plaintiff to access the units of the Property 

as Plaintiff’s wheel could get snagged on the vertical rise and cause the 

wheelchair to tip.

x. Nearest Saigon Tokyo, the ground surfaces at the base of the accessible ramp 

which provides the access route from nearby accessible parking spaces, the 

Property has an accessible ramp leading from the accessible parking space to 

the accessible entrances with a slope exceeding 1:12 in violation of section 

405.2 of the 2010 ADAAG standards. This barrier to access would make it 

dangerous and difficult for Plaintiff to access the units of the Property because 

when ramps are too steep (more than 1:12) it requires too much physical arm 

strain to wheel up the ramp and increases the likelihood of the wheelchair 

falling backwards and Plaintiff being injured.

xi. Nearest Saigon Tokyo, the ground surfaces at the base of the accessible ramp 

which provides the access route from nearby accessible parking spaces, there is 

a vertical rise at the top of the accessible ramp that is in excess of a 1⁄4 of an 

inch, in violation of Section 303.2 and 405.4 of the 2010 ADAAG 

standards. This barrier to access would make it dangerous and difficult for 

Plaintiff to access public features of the Property when using this accessible 

ramp as vertical rises on ramps are particularly dangerous as the surface of the 

ramp is already at a significant slope which increases the likelihood of the 

wheelchair to tip over due to the vertical rise.

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xii. Inside Saigon Tokyo, the to-go/take-out counter lacking any portion of the 

counter that has a maximum height of 36 (thirty-six) inches from the finished 

floor in violation of section 904.4 of the 2010 ADAAG standards, all portions 

of the to-go/take-out counter exceed 36 (thirty-six) inches in height from the 

finished floor. This barrier to access would make it difficult for Plaintiff to 

properly transact business at the Property.

xiii. Inside Saigon Tokyo, the sushi bar is lacking any portion of the counter that has 

a maximum height of 34 (thirty-four) inches from the finished floor in violation 

of section 902.3 of the 2010 ADAAG standards, all portions of the sushi bar 

exceed 34 (thirty-four) inches in height from the finished floor. This barrier to 

access would make it difficult for Plaintiff to enjoy the unique eating experience 

at the sushi bar.

xiv. Defendant fails to adhere to a policy, practice and procedure to ensure that all 

facilities are readily accessible to and usable by disabled individuals.

SAIGON TOKYO RESTROOMS

i. The handicap accessible sign is not located on the latch side of the door but 

located on the door itself. As a result, the restroom lacks signage in compliance 

with sections 216.8 and 703 of the 2010 ADAAG standards. This barrier to 

access would make it difficult for Plaintiff and/or any disabled individual to 

locate accessible restroom facilities.

ii. The door locking hardware requires tight grasping and twisting of the wrist in 

violation of Section 404.2.7 of the 2010 ADAAG standards. This barrier to 

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access would make it difficult for Plaintiff and/or any disabled individual to 

utilize the restroom facilities.

iii. The height of coat hook located in accessible restroom stall is above 48 (fortyeight) inches from the finished floor in violation of section 308.2.1 of the 2010 

ADAAG standards. This barrier to access would make it difficult for Plaintiff 

and/or any disabled individual to reach the coat hook as individuals in 

wheelchairs are seated and have significantly less reach range than individuals 

who stand up.

iv. The sinks in the restrooms have exposed pipes and surfaces and are not 

insulated or configured to protect against contact in violation of section 606.5 

of the 2010 ADAAG standards. This barrier to access would make it difficult 

for Plaintiff and/or any disabled individual to safely utilize the sink as the pipes 

underneath the sink typically have sharp surfaces and/or hot pipes, and since 

individuals in wheelchairs use a sink while seated, their legs are particularly 

vulnerable to these threats.

v. Due to the placement of a paper towel dispenser within 12” above the rear grab 

bar, there is inadequate space between the grab bar and objects placed above 

the grab bar in violation of section 609.3 of the 2010 ADAAG Standards. This 

barrier to access would make it difficult for Plaintiff to safely transfer from the 

wheelchair to the toilet and back.

vi. There is inadequate (less than 1 1⁄2 inches) spacing underneath the rear grab bar 

surrounding the toilet in violation of section 609.3 of the 2010 ADAAG 

Standards. The lack of spacing would make it difficult for Plaintiff to grab the 

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bar adequately and transfer back and forth to the wheelchair.

vii. The toilet paper dispenser for the accessible toilet is not positioned in seven to 

nine inches in front of the toilet and therefore is in violation of section 604.7 of 

the 2010 ADAAG standards. This barrier to access would make it difficult for 

Plaintiff to utilize the toilet due to the fact the toilet paper dispenser is at an 

improper distance from the toilet, given Plaintiff’s disability, Plaintiff would 

not be able to get up and reach the toilet paper.

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.

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, Defendants are 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 

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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

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 Defendants and requests the 

following injunctive and declaratory relief:

1. That this Court declares that Premises owned, operated and/or controlled by 

Defendants are in violation of the ADA;

2. That this Court enter an Order requiring Defendants 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 Defendants to evaluate and neutralize 

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

reasonable time so as to allow the Defendants 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 

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and proper.

Dated: October 11, 2022

/ s / A l b e r t o R . L e al . 

Alberto R. Leal, Esq., P.A.

Florida Bar No.: 1002345

8927 Hypoluxo Rd. #157

Lake Worth, FL 33467

Phone: 954-637-1868

E-Mail: albertolealesq@gmail.com

Attorney for Plaintiff

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