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Peter Strojnik, State Bar No. 6464

STROJNIK P.C.

Esplanade Center III, Suite 700

2415 East Camelback Road

Phoenix, Arizona 85016

Telephone: (602) 524-6602

Facsimile: (602) 296-0135

ps@strojnik.com 

Peter Kristofer Strojnik, State Bar No. 026082

THE STROJNIK FIRM LLC

Esplanade Center III, Suite 700

2415 East Camelback Road

Phoenix, Arizona 85016

Telephone: (602) 510-9409

Facsimile: (602) 916-0253

strojnik@skplaw.com 

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

THERESA BROOKE, a married woman 

dealing with her sole and separate claim,

Plaintiff, 

vs.

Forest Villas Inn II, A Limited Liability 

Company, an Arizona Limited Liability 

Company D/B/A Forest Villas Hotel;

Defendant.

Case No: 

VERIFIED COMPLAINT

Plaintiff alleges:

 

PARTIES

1. Plaintiff Theresa Brooke is a married woman currently residing in Pinal 

County, Arizona. Plaintiff is and, at all times relevant hereto, has been legally disabled, 

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confined to a wheel chair, and is therefore a member of a protected class under the 

ADA, 42 U.S.C. § 12102(2); the regulations implementing the ADA set forth at 28 CFR 

§§ 36.101 et seq. and AzDA §§41-1492 et seq. and its implementing regulations, R10-

3-401 et seq. Plaintiff ambulates with the aid of a wheelchair.

2. Defendant, Forest Villas Inn II L.L.C., an Arizona Limited Liability 

Company D/B/A Forest Villas Hotel, owns and/or operates hotel at 3645 Lee Circle,

Prescott, AZ 86301, which is a public accommodation pursuant to 42 U.S.C. § 

12181(7)(A) which offers public lodging services. 

3. Plaintiff intends on lodging at Defendant hotel in the event Defendant 

rectifies the alleged Title III allegations stated herein.

INTRODUCTION

4. Plaintiff Theresa Brooke brings this action against Defendant, alleging 

violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et 

seq., (the “ADA”) and its implementing regulations and A.R.S. Title 41, Chapter 9, 

Article 8, §§41-1492 et seq. and its implementing regulations, R10-3-401 et seq. (the 

“AzDA”)

5. Plaintiff is a disabled woman confined to a wheelchair. She brings this 

civil rights action against Defendant for failing to design, construct, and/or own or 

operate hotel facilities that are fully accessible to, and independently usable by, disabled 

people. Specifically, Defendant’s hotel, which is a place of public accommodation, has 

barriers to use of the pool. Defendant’s pool does not have acceptable means of entry 

for disabled persons, notwithstanding that such modifications are readily achievable. 

Therefore, Plaintiff seeks a declaration that Defendant’s hotel violates federal law and 

an injunction requiring Defendant to install means of access in compliance with ADA 

requirements so that the pool is fully accessible to, and independent usable by, disabled 

individuals. Plaintiff further requests that, given Defendant’s historical failure to 

comply with the ADA’s mandate, the Court retain jurisdiction of this matter for a 

period to be determined to ensure that Defendant comes into compliance with the 

relevant requirements of the ADA, and to ensure that Defendant has adopted and is 

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following an institutional policy that will, in fact, cause Defendant to remain in 

compliance with the law. 

6. In compliance with R10-3-405(H)(1), Plaintiff’s address is c/o Peter 

Strojnik, her attorney, 2415 East Camelback, Suite 700, Phoenix, Arizona 85016.

JURISDICTION AND VENUE

7. Jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1331 and 42 

U.S.C. § 12188.

8. Plaintiff’s claims asserted herein arose in this judicial district and 

Defendant does substantial business in this judicial district. 

9. Venue in this judicial district is proper under 28 U.S.C. § 1391(b) and (c) 

in that this is the judicial district in which a substantial part of the acts and omissions 

giving rise to the claims occurred. 

THE ADA AND ITS IMPLEMENTING REGULATIONS

10. On July 26, 1990, President George H.W. Bush signed into law the ADA, 

a comprehensive civil rights law prohibiting discrimination on the basis of disability. 

11. The ADA broadly protects the rights of individuals with disabilities in

employment, access to State and local government services, places of public 

accommodation, transportation, and other important areas of American life. 

12. Title III of the ADA prohibits discrimination in the activities of places of 

public accommodation and requires places of public accommodation to comply with 

ADA standards and to be readily accessible, and independently usable by, individuals 

with disabilities. 42 U.S.C. § 12181-89.

13. Title III states, inter alia, that "[i]t shall be discriminatory to afford an 

individual or class of individuals, on the basis of a disability . . . with the opportunity to 

participate in or benefit from a good, service, facility, privilege, advantage, or 

accommodation that is not equal to that afforded to other individuals." See 42 U.S.C. 

§12182(b)(1)(A)(ii). In addition, §12182(b)(1)(A)(iii) and §12182(b)(1)(B)] are 

intended to prohibit exclusion and segregation of individuals with disabilities and the 

denial of equal opportunities enjoyed by others, based on, among other things,

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presumptions, patronizing attitudes, fears, and stereotypes about individuals with 

disabilities. 28 C.F.R. pt. 36, app. C (2011).

14. On July 26, 1991, the Department of Justice (“DOJ”) issued rules 

implementing Title III of the ADA, which are codified at 28 CFR Part 36. 

15. Appendix A of the 1991 Title III regulations (republished as Appendix D 

to 28 CFR part 36) contains the ADA standards for Accessible Design (1991 

Standards), which were based upon the Americans with Disabilities Act Accessibility 

Guidelines (1991 ADAAG) published by the Access Board on the same date. 

16. In 1994, the Access Board began the process of updating the 1991 

ADAAG by establishing a committee composed of members of the design and 

construction industries, the building code community, and State and local governmental 

entities, as well as individuals with disabilities. 

17. In 1999, based largely on the report and recommendations of the advisory 

committee, the Access Board issued a notice of proposed rulemaking to update and 

revise its ADA and ABA Accessibility Guidelines. 

18. The Access Board issued final publication of revisions to the 1991 

ADAAG on July 23, 2004 (“2004 ADAAG”).

19. On September 30, 2004, the DOJ issued an advanced notice of proposed 

rulemaking to begin the process of adopting the 2004 ADAAG.

20. On June 17, 2008, the DOJ published a notice of proposed rulemaking 

covering Title III of the ADA.

21. The long-contemplated revisions to the 1991 ADAAG culminated with 

the DOJ’s issuance of The 2010 Standards for Accessible Design (“2010 Standards”).

The DOJ published the Final Rule detailing the 2010 Standards on September 15, 2010. 

The 2010 Standards consist of the 2004 ADAAG and the requirements contained in 

subpart D of 28 CFR part 36.1

 

1 Though the Effective Date of the 2010 Standards was March 15, 2011, the deadline for 

existing pools to comply did not become effective until January 31, 2013, at which time 

the 2010 Standards became enforceable through civil actions by private plaintiffs. 

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22. Notably, the lodging industry requested and received a number of 

extensions of time before the mandatory requirements of Section 242.2 of the 2010 

Standards, concerning access to pools, became effective. Notwithstanding, the industry 

remains largely noncompliant with the requirements. 

THE AzDA AND ITS IMPLEMENTING REGULATIONS

23. The AzDA and its implementing regulations, §§41-1492 et seq. and R10-

3-401 et seq. provide similar prohibitions and remedies to the ADA and its 

implementing regulations.

ALLEGATIONS COMMON TO ALL COUNTS

24. Pursuant to CFR 36-302(1)(ii), on or about October 2, 2015, Plaintiff 

contacted Defendant’s hotel for purposes of booking a room. Plaintiff inquired whether 

Defendant’s hotel pool or Jacuzzi (“pool”) had a lift or other means of access for 

disabled persons such as Plaintiff. Defendant’s representative, Kate, stated that the hotel 

pool did not have a lift or other means of access. Plaintiff’s agent, as part of due 

diligence investigation, independently verified the absence of a pool lift or other means 

of access for Plaintiff to the pool and Jacuzzi, and other ADA related violations.

25. Plaintiff has actual knowledge of at least one barrier related to her 

disability, that is, the pool is inaccessible to her by virtue of her confinement to a wheel 

chair, and is currently deterred from visiting Defendant’s accommodation by this 

accessibility barrier. Therefore, she has suffered an injury-in-fact for the purpose of her 

standing to bring this action. Upon information and belief, there are other potential 

violations and barriers to entry that will be discovered and disclosed during the 

discovery and disclosure process.

26. Without the presence of a fixed pool lift or other means of permitting 

Plaintiff equal access to the pool, Plaintiffs disability prevents her from equal 

enjoyment of the pool. 

27. Plaintiff intends to travel to the location of the Defendant’s place of 

public accommodation in the future for business, pleasure or medical treatment. 

28. As a result of Defendant’s non-compliance with the ADA, Plaintiff will 

avoid and not stay at the Defendant’s place of accommodation in the future.

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29. The existence of barriers to use the pool at Defendant’s hotel deterred 

Plaintiff from staying or returning to seek accommodations at Defendant’s hotel. Upon 

information and belief, other disabled persons were deterred from staying there or 

otherwise precluded from using the pool as guests due to the absence of pool lifts. 

30. As a result of Defendant’s non-compliance with the ADA, Plaintiff, 

unlike persons without disabilities, cannot independently use Defendant’s pool. 

31. In violation of Section 242.2 of the 2010 ADA Standards, Defendant’s

pool does not have at least one accessible means of entry in complying with Sections 

1009.2 or 1009.3.

32. Plaintiff wishes to travel to the location of Defendant’s place of public 

accommodation for personal, business and/or medical treatment and wants to stay in 

hotels there. But for the presence of architectural barriers at Defendant’s hotel, Plaintiff 

would consider staying at the Defendant’s hotel. 

33. Upon information and belief, though Defendant has centralized policies 

regarding the management and operating of its hotel, Defendant does not have a plan or 

policy that is reasonably calculated to make its entire hotel fully accessible to and 

independently usable by, disabled people. 

34. Plaintiff verified that Defendant’s hotel lacks the mandatory elements 

required by the 2010 Standards to make pools fully accessible to and independently 

usable by disabled people. 

35. As a disabled person, Plaintiff has a keen interest in whether public 

accommodations that offer public lodging services are fully accessible to, and 

independently usable by, the disabled, specifically including an interest in ensuring that 

pools and spas possess all of the features required by the 2010 Standards. 

36. Plaintiff, or an agent of Plaintiff, intends to return to Defendant’s hotel to 

ascertain whether it remains in violation of the ADA.

37. While the law certainly supports that the act of being a tester alone does 

not negate an injury in fact, here, Ms. Brooke also alleges that she would return to the 

premises if the alleged barriers were remedied. See Paragraph 3.

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38. Plaintiff and other disabled persons have been injured by Defendant’s 

discriminatory practices and failure to remove architectural barriers. These injuries 

include being deterred from using Defendant’s facilities due to the inaccessibility of 

Defendant’s pool and the denial of the opportunity to use said pool. 

39. Without injunctive relief, Plaintiff and others will continue to be unable to 

independently use Defendant’s hotel pool in violation of her rights under the ADA.

COUNT ONE

(Violation of Title III ADA)

40. Plaintiff incorporates all allegations heretofore set forth. 

41. Defendant has discriminated against Plaintiff and others in that it has 

failed to make its public lodging services fully accessible to, and independently usable 

by, individuals who are disabled in violation of 42 U.S.C. § 12182(a) and § 

121282(b)(2)(iv) and Section 242.2 of the 2010 Standards, as described above. 

42. Defendant has discriminated against Plaintiff in that it has failed to 

remove architectural barriers to make its lodging services fully accessible to, and 

independently usable by individuals who are disabled in violation of 42 U.S.C. 

§12182(b)(A)(iv) and Section 242.2 of the 2010 Standards, as described above. 

Compliance with the requirements of section 242.2 of the 2010 Standards would neither 

fundamentally alter the nature of Defendant’s lodging services nor result in an undue 

burden to Defendant. 

43. In violation of Section 242.2 of the 2010 Standards, Defendant’s pool 

does not have at least one accessible means of entry complying with Sections 1009.2 or 

1009.3.

44. Pursuant to Section 44 of the IRS Code, Defendant may be able to obtain 

a tax credit and tax deduction where it complies with the ADA. See generally Dep’t of 

Justice, Questions and Answers: Accessibility Requirements for Existing Swimming 

Pools at Hotels and Other Public Accommodations (Mar. 1, 2013)2. The tax credit is 

available to businesses that have total revenues of $1,000.000 or less in the previous tax 

 

2 http://www.ada.gov/qa_existingpools titleiii.htm

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year or 30 or fewer full-time employees. This credit can cover 50% of the eligible 

access expenditures in a year up to $10,250 (maximum credit of $5,000).The tax credit 

can be used to offset the cost of undertaking barrier removal and alterations to improve 

accessibility. The tax deduction can be claimed for expenses incurred in barrier removal 

and alterations. Id. 

45. Compliance with 42 U.S.C. § 12182(b)(2)(A)(iv) and Section 242.2 of the 

2010 Standards, as described above, is readily achievable by the Defendant due to the 

low costs of installing a fixed pool lift or lifts. Id. Readily achievable means that 

providing access is easily accomplishable without significant difficulty or expense. 

46. Conversely, the cessation of compliance with the ADA law is also readily 

achievable by the removal of a fixed lift. Therefore, injunctive relief should issue 

irrespective of Defendant’s potential voluntary cessation pursuant to the Supreme 

Court’s announcement in Friends of the Earth case3.

47. Defendant’s conduct is ongoing, and, given that Defendant has never 

complied with the ADA’s requirements that public accommodations make lodging 

services fully accessible to, and independently usable by, disabled individuals, Plaintiff 

invokes her statutory right to declaratory and injunctive relief, as well as costs and 

attorneys’ fees. 

48. Without the requested injunctive relief, specifically including the request 

that the Court retain jurisdiction of this matter for a period to be determined after the 

 

3 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 

693, 145 L.Ed.2d 610 (2000):

It is well settled that a defendant's voluntary cessation of a challenged 

practice does not deprive a federal court of its power to determine the 

legality of the practice. If it did, the courts would be compelled to leave the 

defendant free to return to his old ways. In accordance with this principle, 

the standard we have announced for determining whether a case has been 

mooted by the defendant's voluntary conduct is stringent: A case might 

become moot if subsequent events made it absolutely clear that the 

allegedly wrongful behavior could not reasonably be expected to recur. The 

heavy burden of persuading the court that the challenged conduct cannot 

reasonably be expected to start up again lies with the party asserting 

mootness.

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Defendant certifies that it is fully in compliance with the mandatory requirements of the 

ADA that are discussed above, Defendant’s non-compliance with the ADA’s 

requirements that its pool be fully accessible to, and independently useable by, disabled 

people is likely to recur. 

WHEREFORE, Plaintiff demands judgment against Defendant as follows:

a. A Declaratory Judgment that at the commencement of this action 

Defendant was in violation of the specific requirements of Title III of the 

ADA described above, and the relevant implementing regulations of the 

ADA, in that Defendant took no action that was reasonably calculated to 

ensure that all of its pools were fully accessible to, and independently 

usable by, disabled individuals;

b. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable, a permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) 

and 28 CFR § 36.504(a) which directs Defendant to take all steps 

necessary to bring its pools into full compliance with the requirements set 

forth in the ADA, and its implementing regulations, so that the pools are 

fully accessible to, and independently usable by, disabled individuals, 

specifically including a pool lift as required by Sections 242.2 and 1009.2 

of the 2010 Standards, and which further directs that the Court shall retain 

jurisdiction for a period to be determined after Defendant certifies that its 

pool is fully in compliance with the relevant requirements of the ADA to 

ensure that Defendant has adopted and is following an institutional policy 

that will in fact cause Defendant to remain fully in compliance with the 

law;

c. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable, payment of costs of suit;

d. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable, payment of attorneys’ fees pursuant to 42 U.S.C. § 12205, 28 

CFR § 36.505 and other principles of law and equity and in compliance 

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with the “prevailing party” and “material alteration” of the parties’ 

relationship doctrines4in an amount no less than $3,500.00; and, 

e. Order closure of the Defendant’s place of public accommodation until 

Defendant has fully complied with the ADA; and

f. The provision of whatever other relief the Court deems just, equitable and 

appropriate. 

COUNT TWO

(Violation A.R.S. Title 41, Chapter 9, Article 8, §§41-1492 et seq. AND 

Implementing Regulations)

49. Plaintiff realeges all allegations heretofore set forth.

50. Plaintiff has been damaged by the Defendant’s non-compliance with the 

AzDA.

51. Pursuant to A.R.S. § 41-1492.08, and §41-1492.09, plaintiff has the right 

to enforce the AzDA by the issuance of injunctive relief.

52. Pursuant to A.R.S. § 41-1492.08, Plaintiff is entitled to preventive and 

mandatory relief. 

53. Mandatory relief includes relief mandated by A.R.S. § 41-1492.09 

obligating the Office of the Attorney General to take actions specified therein. 

54. By a copy of this Verified Complaint, Plaintiff gives notice to the Office 

of the Attorney General of this Action.

55. Pursuant to A.R.S. § 41-1492.09(B)(2), Plaintiff is further entitled to such 

other relief as the Court considers appropriate, including monetary damages in an 

amount to be proven at trial, but in no event less than $5,000.00.

56. Pursuant to A.R.S. § 41-1492.09(F), Plaintiff is entitled to attorney’s fees 

and costs in an amount proven but in no event less than $3,750.00.

WHEREFORE, Plaintiff demands judgment against Defendant as follows:

a. A Declaratory Judgment that at the commencement of this action 

Defendant was in violation of the specific requirements of AzDA; and

 

4 As applicable to ADA cases, see Coppi v. City of Dana Point, Case No. SACV 11-1813 JGB (RNBx) 

(February, 2015)

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b. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable, a permanent injunction pursuant to AzDA which directs 

Defendant to take all steps necessary to bring its pools into full 

compliance with the requirements set forth in the AzDA, and its 

implementing regulations, so that the pools are fully accessible to, and 

independently usable by, disabled individuals, specifically including a 

pool lift as required by law, and which further directs that the Court shall 

retain jurisdiction for a period to be determined after Defendant certifies 

that its pool is fully in compliance with the relevant requirements of the 

AzDA to ensure that Defendant has adopted and is following an 

institutional policy that will in fact cause Defendant to remain fully in 

compliance with the law; and

c. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable , the payment of costs of suit; and

d. Irrespective of Defendants “voluntary cessation” of the ADA violation, if 

applicable, the payment of attorneys’ fees pursuant to A.R.S. § 41-

1492.09(F) and other principles of law and equity and in compliance with 

the “prevailing party” and “material alteration” of the parties’ relationship 

doctrines in an amount no less than $3,750.00; and

e. Order closure of the Defendant’s place of public accommodation until 

Defendant has fully complied with the AzDA; and

f. For damages authorized by § 41-1492.09(B)(2) in an amount no less than 

$5,000.00; and 

g. The provision of whatever other relief the Court deems just, equitable and 

appropriate. 

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby 

demands a jury trial on issues triable by a jury. 

RESPECTFULLY SUBMITTED this 7th day of October, 2015.

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STROJNIK P.C.

 

Peter Strojnik (6464)

2415 East Camelback Road, Suite 700

 Phoenix, Arizona 85016

Attorneys for Plaintiff 

VERIFICATION COMPLIANT WITH R10-3-405

I declare under penalty of perjury that the foregoing is true and correct.

DATED this 7th day of October, 2015.

/s/ Therese Brooke

__________________________

Electronic Signature Authorized

Theresa Brooke

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