UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

MICHAEL MILES, Individually,

Plaintiff,

v.

The BON-TON DEPARTMENT STORES Inc.,

an Pennsylvania Corporation,

Defendant.

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Case No. 3:15-cv-10130

COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

Plaintiff, MICHAEL MILES, Individually, (sometimes referred to as “Plaintiff”), hereby 

sues the Defendant, The BON-TON DEPARTMENT STORES Inc., a Pennsylvania Corporation,

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

expenses, and costs pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

(“ADA”).

PARTIES

1. Plaintiff, MICHAEL MILES, is an individual residing in FINDLAY, OH, in the County 

of Hancock.

2. Defendant’s property, CARSON’S is located at 4450 24th Ave, Fort Gratiot Township, 

MI 48059 in St. Clair County.

JURISDICTION AND VENUE

3. Count I is brought pursuant to the laws of the United States, therefore the Court has

jurisdiction pursuant to 28 U.S.C. §1331. Count II utilizes the same core of operative 

fact, and is therefore subject to supplemental jurisdiction pursuant to 28 U.S.C. §1367.

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4. Venue is properly located in the Eastern District of Michigan because venue lies in the 

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

business within this judicial district.

5. 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.

6. Plaintiff, MICHAEL MILES is an Ohio resident, is sui juris, and qualifies as an 

individual with disabilities as defined by the ADA. Michael Miles is paraplegic and uses 

a wheelchair for mobility. MICHAEL MILES visits Port Huron and the surrounding 

area, including the St. Clair and Sanilac Counties, Michigan, for golf trips and family 

vacations several times annually. Michael Miles frequents many establishments in and 

around the city of Port Huron and has visited and been a customer at the Carson’s 

department store which forms the basis of this lawsuit and plans to return to the property 

to avail himself of the goods and services offered to the public at the property. The 

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

access at the property have endangered his safety. 

7. 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 all of those that Plaintiff is able to access; and tests all of those barriers to 

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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 the 

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 

annually to verify its compliance or non-compliance with the ADA, and its maintenance 

of the accessible features of the premises. In this instance, Plaintiff, in Plaintiff’s 

individual capacity and as a “tester,” visited the Facility, encountered barriers to access at 

the Facility, 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.

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 CARSON’S is located at 4450 24th Ave, Fort Gratiot Township, MI 48059.

9. MICHAEL MILES 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 he will continue to be 

subjected to discrimination in violation of the ADA by the Defendant. MICHAEL 

MILES desires to visit CARSON’S not only to avail himself of the goods and services 

available at the property but to assure himself that this property is in compliance with the 

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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 him 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 Carson’s has shown that violations exist. 

These violations include, but are not limited to:

Restrooms

A. There is no compliant toilet stall with sufficient clear floor space in the men’s 

restroom in violation of the ADA, whose remedy is readily achievable

B. There is no ADA signage identifying the men’s or women’s restrooms, in 

violation of the ADA, whose remedy is readily achievable

C. There is exposed pipe under the lavatory without insulation to protect for scalding 

in the men’s restroom in violation of the ADA, whose remedy is readily 

achievable

D. Stall door hardware requires tight clasping to operate and toilet partition door 

does not operate with a closer or spring hinge in violation of the ADA, whose

remedy is readily achievable

Access to Goods and Services

E. There is no fixed seat in the men’s fitting room with required width or depth in 

violation of the ADA, whose remedy is readily achievable.

F. There is no or insufficient signage identifying accessible fitting rooms

G. Coat and clothing hooks mounted in excess of allowable range in violation of the 

ADA whose remedy is readily achievable

H. There is no designated accessible changing room with sufficient clear floor space

in violation of the ADA whose remedy is readily achievable

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I. Door hardware on designated accessible dressing room requires tight clasping and 

twisting in violation of the ADA whose remedy is readily achievable

J. Each and every sales counter in the department store exceeds 36 inches in height 

in violation of the ADA whose remedy is readily achievable

K. Customer service courtesy phone is mounted in excess of allowable reach range 

height in violation of the ADA whose remedy is readily achievable

12. 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 Plaintiff, has been denied access 

to, and has 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.

COUNT I

VIOLATION OF THE AMERICANS WITH DISABILITES ACT

13. Plaintiff restates the allegations of ¶¶1-12 as if fully rewritten here.

14. CARSON’S, and the businesses therein, are public accommodations and service 

establishments, and as such must be, but are not, in compliance with the Americans with 

Disabilities Act ("ADA") and Americans with Disabilities Act Accessibility Guidelines 

("ADAAG").

15. Plaintiff was unlawfully denied full and equal enjoyment of the goods, services, facilities,

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privileges, and advantages of the property and the businesses therein on the basis of his

disability, due to Defendant’s property failing to be in compliance with Title III of the Americans 

with Disabilities Act and its accompanying regulations, as prohibited by 42 U.S.C. § 12182, et 

seq., and will continue to discriminate against Plaintiff and others with disabilities unless and 

until Defendant is compelled to remove all physical barriers that exist at the facility, including 

those specifically set forth herein, and make the facility accessible to and usable by persons with 

disabilities, including Plaintiff.

16. The Plaintiff, and others similarly-situated, are without adequate remedy at law and are 

suffering irreparable harm, and reasonably anticipate that they will continue to suffer irreparable 

harm unless and until Defendant is required to remove the physical barriers, dangerous 

conditions and ADA violations that exist at the Facility, including those set forth herein.

17. Pursuant to 42 U.S.C. §12187, Plaintiff requests that the Court issue an injunction 

requiring Defendant to make such readily achievable alterations as are legally required to 

provide full and equal enjoyment of the goods, services, facilities, privileges, and advantages on 

its property to disabled persons. In connection with that relief, Plaintiff requests reasonable 

attorney’s fees and costs of maintaining this action.

COUNT II

VIOLATION OF MICHIGAN PERSONS WITH DISABILITIES CIVIL RIGHTS ACT

M.C.L. § 37.1301 et seq.

18. Plaintiff restates the allegations of ¶¶1-17 as if fully rewritten here.

19. CARSON’S, and the businesses therein, are "place[s] of public accommodation" 

pursuant to M.C.L §37.1301(a).

20. Defendant committed an unlawful act pursuant to M.C.L §37.1302(a) by denying Plaintiff 

full enjoyment of its goods, services, accommodations, advantages, facilities, or privileges.

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21. Pursuant to M.C.L §37.1606, Plaintiff is entitled to compensatory and exemplary damages, 

and attorneys fees and costs, in an amount to be determined at trial, but in any event not less 

than $25,000.00, as well as issuance of an injunction requiring Defendant to allow full and 

equal enjoyment of its goods, services, facilities, privileges, and advantages to disabled persons.

WHEREFORE, Plaintiff demands,

for Count I, an injunction requiring Defendant to make all readily achievable alterations 

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

to disabled persons, and the reasonable attorneys fees and costs of maintaining this action; and, 

for Count II, compensatory and exemplary damages, and attorneys fees and costs, in an

amount to be determined at trial, but in any event not less than $25,000.00, as well as

issuance of an injunction requiring Defendant to allow full and equal enjoyment of the

goods, services, facilities, privileges, and advantages to disabled persons.

Respectfully Submitted,

Counsel for Plaintiff:

\s\ Owen B Dunn Jr -- dated: January 13, 2015

Owen B. Dunn, Jr., Esq. MI Bar Number P66315

Law Office of Owen B. Dunn, Jr.

The Ottawa Hills Shopping Center

4334 W. Central Ave., Suite 222

Toledo, OH 43615

(419) 241-9661 – Phone

(419) 241-9737 - Facsimile

dunnlawoffice@sbcglobal.net

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