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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Santiago Abreu,

 Plaintiff,

vs.

Harold’s Chicken Shack #60, LLC,

Defendant.

Case No.: 

Hon. 

COMPLAINT

Plaintiff, Santiago Abreu (“Plaintiff”), hereby brings an action for injunctive relief, 

compensatory damages, attorneys’ fees and costs pursuant to the Americans with Disabilities 

Act, 42 U.S.C. §12181, et. seq. (“ADA”), against Harold’s Chicken Shack #60, LLC 

(“Defendant”), together with its assignees and successors-in-interest and in support thereof 

alleges as follows:

JURISDICTION AND VENUE

1. This action arises from a violation of Title III of the ADA, 42 U.S.C. §12181, eq. seq. 

This Court has original jurisdiction pursuant to 28 USC §1331 and 28 USC §1343.

2. Defendant, Harold’s Chicken Shack #60, LLC, is a limited liability company doing 

business as “Harold’s Chicken Shack” and is an owner, operator, lessor, lessee, or some 

combination thereof of a Restaurant, located within Lake County, Indiana.

3. Defendant, Harold’s Chicken Shack #60, LLC, operates a retail establishment that 

constitutes a place of public accommodation subject to the ADA. 

4. Defendant owns, operates, leases or leases to others “Harold’s Chicken Shack,” a 

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Restaurant located at the following address: 6690 Broadway, Merrillville, IN 46410 (hereinafter 

referred to as the “Premises”).

5. Defendant has received notice long ago of its obligation to comply with the ADA by 

virtue of the enactment of the ADA and associated publicity. 

6. Defendant’s Premises are a place of public accommodation as defined under the 

ADA.

7. Venue is proper as the Premises that is the subject matter of the claims herein is 

located in a city and municipality located within Lake County, Indiana, and Defendant is doing 

business at a retail location within Lake County, Indiana.

PLAINTIFF AND STANDING

8. Plaintiff, is a resident of Palm Beach County, Florida, and is disabled at all times 

material to this Complaint.

9. Plaintiff is an individual with numerous disabilities, including moderately severe 

multiple sclerosis and is also paraparetic. These conditions cause sudden onsets of severe pain 

and requires Plaintiff to use a wheelchair and substantially limits Plaintiff’s major life activities. 

At the time of Plaintiff’s initial visit to the Premises (and prior to instituting this action), Plaintiff 

suffered from a “qualified disability” under the ADA and required accessible means of entry at 

the Premises. 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 would be classified as a “bona fide patron.”

10. Plaintiff is a customer of Defendant and has visited the Premises in March 2016, to 

enjoy the goods and services offered at the Premises as Defendant offers said goods and services 

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without restriction to members of the public that do not suffer from a physical disability. A true 

and correct copy of the Purchase Receipt is attached hereto as Exhibit “1”.

11. Plaintiff will avail himself of the services offered at the Premises in the future, 

provided that Defendant modifies the Premises or modifies the policies and practices to 

accommodate individuals who have physical disabilities.

12. Plaintiff would return to the Premises identified herein to enjoy the goods, services, 

privileges, advantages and/or accommodations being offered to members of the public without 

physical disabilities, but he is deterred from returning due to the discriminatory conditions at the 

Premises. 

13. Completely independent of his personal desire to have access to these Premises, 

which is a 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 

persons with disabilities in places of 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 

of 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 regularly to verify compliance 

or non-compliance with the ADA and maintenance of the accessible features of the Premises. In 

these instances referenced in this Complaint, Plaintiff, in Plaintiff’s individual capacity and as a 

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“tester”, visited the Premises, encountered barriers to access at the Premises, 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 violation 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.

14. Plaintiff has suffered an injury under the ADA because of his awareness of 

discriminatory conditions at the Premises and his being deterred from visiting or patronizing said 

public accommodations.

15. Plaintiff’s injury is concrete and particularized because he is being deterred from 

visiting or patronizing the Premises.

16. Plaintiff’s injury is caused as a direct result of Defendant’s failure to remove 

discriminatory architectural features at the Premises.

17. Plaintiff’s injury will be redressed by the Court’s ordering Defendant to comply with 

the ADA.

18. Plaintiff feels fortunate that lawmakers have designated a legal remedy for persons 

who have disabilities and their families, through the ADA, to eliminate discriminatory behavior.

19. In the matter at hand, Plaintiff seeks the removal of all mobility and accessibility 

related architectural barriers at the Premises, which is clearly a place of public accommodation. 

These barriers, as well as others, deter Plaintiff, and others who suffer from physical disabilities, 

from visiting the Premises because they are hurtful and demeaning symbols of discrimination 

against people with physical disabilities and they force Plaintiff to use an increased level of 

exertion to gain access.

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20. Plaintiff has visited Defendant’s Premises at the address listed herein, to enjoy the 

goods and services at the Restaurant as Defendant offers them to non-disabled members of the 

public on March 24, 2016.

21. Plaintiff will suffer continued discrimination if the barriers to access existing at 

Defendant’s Premises as listed above are not immediately removed. 

22. As a direct result of Defendant’s conduct, Plaintiff has suffered, and will certainly 

continue to suffer, discrimination in the full and equal enjoyment of the goods, services, 

facilities, privileges, advantages and/or accommodations at Defendant’s Premises based upon the 

fact that Plaintiff is a person with physical disabilities.

23. Plaintiff has retained 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.

VIOLATION OF THE AMERICANS WITH DISABILITIES ACT

24. Plaintiff adopts and re-alleges the allegations stated in preceding paragraphs as if fully 

stated herein.

25. On July 26, 1990, Congress enacted the ADA, 42 USC §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 USC §12182; see also 28 CFR §36.508(a).

26. Congress found, among other things, that:

a. Some forty-three million (43,000,000) Americans have one or more physical or 

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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 individuals with disabilities persist in such critical areas as 

employment, housing, public accommodations, transportation, communication, 

recreation, institutionalization, health services, voting and access to public 

services and public features;

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 discriminatory and prejudice 

denies all persons with the opportunity to compete on an equal basis and to pursue 

those opportunities for which our country is justifiably famous, and across the 

United States billions of dollars in unnecessary expenses resulting from 

dependency and non-productivity. 

42 USC §12101(a)(1)-(3), (5), and (9).

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27. 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.

42 USC §12101(b)(1) and (4).

28. Pursuant to 42 USC §12182(7), 28 CFR §36.104, and the 2010 ADA Standards, 

Defendant’s Premises is a place of public accommodation covered by the ADA by the fact that it 

provides services to the general public, and as such, must be must be in compliance with the 

ADA. 

29. 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 USC §12182, and 42 USC §12101, et. seq., and by failing to remove 

architectural barriers pursuant to 42 USC §12182(b)(2)(A)(iv).

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

facilities, and therefore suffered an injury in fact.

31. Plaintiff intends to return and enjoy the goods and/or services at the Premises on a 

spontaneous, full and equal basis. However, Plaintiff is precluded from doing so by Defendant’s 

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failure and refusal to provide persons with disabilities with full and equal access to its facilities at 

the Premises. Therefore, Plaintiff continues to suffer from discrimination and injury due to the 

architectural barriers that are in violation of the ADA.

32. Pursuant to the mandates of 42 USC §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 CFR §36 and its successor the 2010 ADA Standards ADA 

Accessibility Guidelines (“ADAAG”), 28 CFR Part 36, under which said Department may obtain 

civil penalties of up to $55,000.00 for the first violation and $110,000.00 for each subsequent 

violation).

33. Plaintiff is an individual with a disability. 

34. Defendant has discriminated, and continues to discriminate, against Plaintiff on the 

basis of his disability, as set forth in this Complaint. In the absence of the injunction sought 

herein, the Plaintiff likely to encounter Defendant’s same discriminatory policies and practices.

35. 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 found in the Men's Restroom located on the Premises1:

a. Failing to provide operable parts that are functional or are in the proper reach 

ranges as required for a person with a disability in violation of 2010 ADAAG 

§§309, 309.1, 309.3 and 309.4.

b. Providing sinks and/or countertops greater than 34 inches high or providing the 

same without clear space underneath to allow for knee or toe clearance in 

 

1

It is believed these same violations are present in the Women’s Restroom. However, due to Mr. 

Abreu’s gender, same cannot be confirmed by Plaintiff.

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violation of 2010 ADAAG §§305, 306, 606, 606.2 and 606.3.

c. Failing to provide the proper insulation or protection for the plumbing under a 

sink or countertop in violation of 2010 ADAAG §§606 and 606.5.

d. Failing to provide grab bar(s) in violation of 2010 ADAAG §§604, 604.5, 609 and 

609.4.

e. Providing grab bars of improper horizontal length or spacing on the back or side 

wall in violation of 2010 ADAAG §§604, 604.5, 604.5.1, 604.5.2, 609 and 609.4.

f. Failing to provide the proper spacing between a grab bar and an object projecting 

out of the wall in violation of 2010 ADAAG §§604, 604.5, 604.5.1, 604.5.2, 609 

and 609.4.

g. Failing to provide mirror(s) located above lavatories or countertops at the proper 

height above the finished floor in violation of 2010 ADAAG §§603 and 603.3.

h. Failing 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.

36. 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 found on the Pathway to the Entrance located on the Premises:

a. Providing pathways and surfaces that are uneven in violation of 2010 ADAAG 

§§206, 206.1, 206.2, 206.2.2, 303 and 403.3.

b. Providing pathways and surfaces that are too steep that include changes in levels 

greater than 0.5 inches in violation of 2010 ADAAG §§206, 206.1, 206.2, 

206.2.2, 303, 403.3 and/or §4.8.5 of the 1991 ADA Standards 4.3.8.

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37. 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 found at the Check-Out Counter located on the Premises:

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 and 

904.4.2.

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

specific violations set forth above.

39. Although Defendant is charged with having knowledge of the violations, Defendant 

may not have had actual knowledge of said violations until this Complaint made Defendant 

aware of same.

40. To date, the readily achievable barriers and violations of the ADA still exist and have 

not been remedied or altered in such a way as to effectuate compliance with the provisions with 

the ADA.

41. To date, the barriers and violations of the ADAAG are not structurally impracticable 

and have not been remedied or altered in such a way to have compliance with the ADAAG. 

42. Pursuant to the ADA, 42 U.S.C. §12101, et. seq., and 28 C.F.R. §36.304, Defendant 

was required to make the establishment (Premises), which is a place of public accommodation, 

accessible to persons with disabilities, by no later than January 28, 1992. As of the date of the 

filing of this Complaint, Defendant has failed to comply with this mandate.

43. The above violations are readily achievable and not structurally impractical to modify 

in order to bring the Premises into compliance with the ADA and the ADAAG.

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44. In instances where the 2010 ADA and/or 2010 ADAAG standard does not apply, the 

1991 ADA Standards apply to the violations listed herein.

45. Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to grant 

Plaintiff’s request for injunctive relief, including entering an Order to alter the Premises to make 

them readily accessible to and useable by individuals with disabilities to the extent required by 

the ADA and closing the Premises until the requisite modifications are completed.

46. Defendant is in the best position and has an affirmative obligation to identify the 

architectural barriers in, at or on Defendant’s Premises.

47. The identification of barriers listed herein is far from comprehensive. 

48. Since most barriers involve a matter of mere inches or degrees, by their very nature, 

they are undetectable to the unaided eye. To identify a less-than-obvious architectural barrier 

requires a person to have unfettered access to a property with tools such as a tape measure, slope 

reader, and note pad. Due to the nature of these barriers and lack of access to the barriers, 

Plaintiff requires an on-site inspection to provide a comprehensive list of barriers that should be 

removed.

WHEREFORE, Plaintiff respectfully requests an Order against Defendant and its assignees 

and successors-in-interest to include the following:

A. This Court declare that the Premises owned, operated and/or controlled by Defendant 

that is identified in this Complaint are in violation of the ADA;

B. This Court declare that the Premises owned, operated and/or controlled by Defendant 

that are identified in this Complaint are in violation of the ADAAG;

C. This Court enter an Order requiring Defendant to alter its Premises that are the subject 

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of this Complaint to make them accessible to and usable by individuals with disabilities to the 

full extent required by Title III of the ADA;

D. This Court enter an Order directing Defendant to evaluate and neutralize its policies, 

practices, and procedures towards persons with disabilities, for such reasonable time so as to 

allow Defendant to undertake and complete corrective procedures to the Premises identified in 

this Complaint;

E. A temporary injunction and a permanent injunction prohibiting conduct of business at 

the Premises until such time as the existing barriers to Plaintiff’s access to the Premises 

identified in the Complaint are removed.

F. An order directing the removal of existing barriers to access to make the Premises 

accessible to and usable by individuals with disabilities as required by the ADA; 

G. An award of attorneys' fees, all costs (including, but not limited to Court costs and 

expert fees) and other expenses of this litigation pursuant to 42 U.S.C. §12205; and

H. Any other such relief as the Court deems just and proper.

Respectfully Submitted,

CHASTAIN & AFSHARI, LLP

Dated: June 17, 2016 /s/ George T. Blackmore

By: George T. Blackmore, Esq.

21411 Civic Center Drive, Suite 200

Southfield, MI 48076

Email: george@cnalawgroup.com

Telephone: (248) 845-8594

Fax: (480) 999-0665

Attorney for Plaintiff

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