A tiara, a sash and lawsuits against local restaurants

A new plaintiff is suing local businesses over wheelchair accessibility issues, but this one wears a crown.

Nicole Swann, who is the 2010 winner of the Ms. Wheelchair Virginia pageant, is the latest plaintiff to go after Richmond area businesses for not complying with access rules.

In February, Swann filed suit against Mom’s Siam and Bonvenu restaurants in Carytown, Sticky Rice on W. Main Street and Southside Plaza shopping center. Among the complaints: a lack of accessible parking spaces, bathrooms, ramps and seating areas.

The passage of the American Disabilities Act in 1990 set standards that places of public accommodation had to follow in order to provide equal access to patrons. Twenty years later, some feel that compliance with the ADA is far behind what it should be — and they are seeking to change it, one lawsuit at a time.

For local businesses, ADA cases are a major hassle and an unexpected financial blow. The required improvements can costs thousands and sometimes tens of thousands of dollars, especially to bring older Fan-type businesses into compliance.

Swann did not respond to repeated requests for comment over several days. The head lawyer in her case, Stephan Nitz of the Florida-based law firm Schwartz Zweben, declined to comment when reached by RBS.

Gene Zweben, co-founder and partner of the firm, said the goal of the lawsuits is to improve accessibility for the clients.

“Clients contact us because they have problems getting into a facility. The final goal is for them to be able to utilize the facility,” Zweben said.

Swann isn’t the first wheelchair pageant winner to obtain legal representation from Schwartz Zweben, which has filed similar lawsuits across the country. Ms. Wheelchair Washington, Ms. Wheelchair Florida and other winners, contestants and coordinators have been plaintiffs in cases represented by the firm in several states.

Zweben said they have become popular with pageant participants primarily through word of mouth.

“We believe in what these individuals are looking for. A lot of them have issues with access,” Zweben said.

In some cases, Zweben said, the firm sends a letter to the business before a lawsuit is filed in an attempt to resolve the issue without litigation.

“Some clients like to try and work it out, some others don’t. It typically doesn’t work,” Zweben said.

ADA compliance cases rarely go to trial, as most are settled.

“Typically what happens when we file a lawsuit on behalf of a client — we let the opposing counsel know that we want to get it done as quickly and inexpensively as possible,” Zweben said.

Zweben said that after the suit is filed they will have an expert conduct an inspection and write a report. The report is used as the basis for the settlement agreement, which outlines what needs to be done over a certain time frame.

Plaintiffs are not entitled to damages in ADA cases, but they are entitled to legal fees. Zweben said the legal fees vary widely.

“If the defendant is agreeable, there is very little time involved and the fees don’t run as high. If the defendant wants to fight and do that course and start engaging in discovery and so on, that can get quite costly,” Zweben said.

In 2007, Zweben told the Baltimore Daily Record that the firm’s hourly billing usually is between $260 and $285 an hour.

Swann is just the latest individual to bring an ADA case before the U.S. District Court in Richmond. Since 2005, Maryland-based lawyer Joel Zuckerman has represented a handful of serial plaintiffs in 114 ADA suits against businesses in the Richmond area.

In 2010 alone, Zuckerman filed 30 such cases in the Richmond District.

Before signing on with his current law firm of Maxwell & Barke, Zuckerman was an attorney for the Rockville office of Schwartz Zweben. BizSense first wrote about him in March 2009. (You can read that story here.)

Michael Chenail was Zuckerman’s first local client and has been a plaintiff in eight ADA suits since 2005. He also runs a consulting business called Compliance Alliance. Most of his work comes from businesses that have been sued for ADA violations or sent a letter advising them that they face a suit if they don’t make changes.

Chenail said that over the past few years, local businesses have become more aware of ADA issues as a result of the multitude of lawsuits being filed.

“Any cases I have typically been involved in, [the defendant] has received letters first. More of those letters are being responded to without having to go into litigation,” Chenail said.

Chenail also said he has noticed that more properties have improved accessibility and removed architectural barriers on their own accord.

“I have seen improvements made at some places that didn’t have anything to do with complaints or cases. There has been noticeable improvement in the Richmond area overall,” Chenail said.

But the city and surrounding areas contain a stock of historic buildings that aren’t in compliance with ADA regulations, and therefore serve as fodder for lawsuits. Many property owners mistakenly think that their property is grandfathered in.

Zweben said for facilities built prior to the ADA, there are still standards that need to be met. Property owners are required to make “reasonable” improvements to accessibility, no matter the age of the facility.

“Barrier removal is still required. It might not be able to be done today because of financial reasons, but it may be able to be done over time,” Zweben said.

BizSense was unable to reach several of the defendant businesses named in the suits.

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Cindy
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Cindy

IF she really wanted to make the community a better place, she’d WORK with small businesses rather than SUE them for her own financial gain. There is a guy who MAKES HIS LIVELIHOOD suing mom and pop business owners over accessibility and I see she’s getting in on it too. Please lady, if you truely are a ROLE MODEL of behavior, stop making money on the backs of small business owners. HELP THEM, teach them. Don’t steal their money. I have a freind who is confined to a wheelchair and he’ shopped Carytown many times with me. He works with… Read more »

small business owner
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small business owner

This lady seems very happy to seu small business for a living. I am disgusted that she goes around town to see who she is going to seu next. Worst of all is that there is a lawyer in between all of this who may be making money of the local small business owners. As a small business owner I think this is ridiculus, since small business often times have small profit margings and at times small profits. There is not a lot of money to be spent in renovations. Then you have a pair of jackasses trying to seu… Read more »

Adam
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Adam

Cindy, not to be rude but you need to re-read the article. She will get no financial compensation from the lawsuit; however, he lawyer will be eligible to receive payment for his services. The lawsuits can only result in requirements for the restaurant to work towards ADA compliance. That said, I do agree that the timing of these suits could not be any worse. In the current economy it will be next to impossible for these small businesses to set aside funds for making the improvements necessary to reach ADA compliance. If the ADA could find a way to help… Read more »

jim
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jim

Adam, read it ONE more time……..Chenail now bills $550-1000 per inspection, he started out as a plaintiff as well. The counties approve these buildings, why are they not being held accountable…plus businesses that may have been compliant in past now aren’t as rules quietly change to keep lawyers in business……

Pete
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Pete

I wish someone would go after the City of Richmond who refuses to enforce the law for those who park in front of handicap ramps. Numerous calls to the police department and City Council remain ignored while cars continually block handicap ramps (mostly in The Fan, Jackson Ward, Shockoe, and downtown. Let’s save the taxpayers some money and stop putting in handicap ramps if they can’t be used. Maybe its time to start fresh with a new City Council. Oh, because it’s a revenue generator, they certainly enforce every violation near VCU.

Scott Dickens
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Scott Dickens

She doesn’t “make money on the backs” of small businesses (who should invest in a spell-checker). She can’t legally sue for damages. I’m torn on this. I don’t like the idea of forcing small businesses into unexpected expenses…but this has been in place for over 20 years. It’s not like they’re unaware of the requirements in many cases. I live every day in a chair. Believe me when I say: the challenges we face every day go WAY beyond getting into a restaurant. I guess the alternative is that these restaurants could just put a trough out front for us… Read more »

30yearold
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30yearold

Regardless of whether the economy is like it is today or whether it is booming, this is reprehensible. I’m thinking this woman will never step foot in any of these restaurants if and when they do become compliant. I’m all for equal rights and equal access for our disabled citizens. But the ADA laws were written to burden so many to accommodate so few. In principle, I guess she should also sue the National Park Service since the Appalachian Trail doesn’t really work too well for her either. See what I mean? When does it stop?

Aaron Kremer
Guest

I’d encourage all commenters to please use your real name. If you would like to share your opinion, and value the reporting we do at RBS, please have the courage to stand behind your comments by using your real name. (Thank you Scott Dickens).

Bruce Anderson
Guest

This lawsuit approach has been around for a long time and smacks of extortion. However, since the laws have been on the books for 20 years, how is it that local building codes haven’t just required commercial building owners to upgrade? Give the existing structures 5 years to transition over and that will be the end of discussion.

Taylor
Guest
Taylor

When I see the restaurants being mentioned. I wonder how they can physically comply with all of these requirements seeing as where they are located. Take for example sticky rice. Where do you put the a handicapped parking space. I think businesses should comply if physically possible, but a lot of these buildings have been in these locations before the act was even considered. They are in urban settings that do not lend themselves to much physical flexibility.

Megan Terry
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Megan Terry

This was a really interesting article. Keep us updated, I’ll be curious to hear more about this case (especially if you can reach any of the restaurants), as well as similar ones in the area.

Karen Cole
Guest
Karen Cole

I always think that lawsuits should be a means of last resort. What struck me funny about this article (and previous ones) is that it doesn’t mention if the person talked to these business owners about the problem to see what could be done to accomodate them before entering into a lawsuit. I think that the plaintiffs have a very valid point about wanting to have access. I also think the restaurant owners are not bad people who want to keep disabled people out of their restuarants. They are just dealing with limited funds in a rough economy. The only… Read more »

Mike Ogilvie
Guest

I’m quite shocked by some of these comments. I do not use a wheelchair and am a business owner (though not a restaurant owner), and I wholeheartedly applaud Nicole Swann’s efforts. Cindy – she could very well have tried to work with the owners before resorting to legal action. We don’t know either way. That would certainly be a nice way to approach it (I suspect she did), but even if she didn’t, so what? Why should it be incumbent on a citizen to try to personally coerce a business owner into following the law? For taking the extra effort… Read more »

Blackbeered
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Blackbeered

Agree with majority here … what Nicole Swann is doing is disgraceful. I thought the law was bad legislation then and now I’m sure it’s bad legislation. It’s not like these restaurants are nonpareil life’s pleasures or necessities. For every cheap greasy spoon that doesn’t have access, there’s 10 that do … that should be enough choice for anyone. In the end, the enterprise’s cost rise, they have to raise their prices, patrons stop coming, and the owner and his family become destitutes. Is that why Ms Nicole is smiling … that in some way she believe she’s “leveled the… Read more »

Taylor
Guest
Taylor

Mike, I support the act. I am just wondering how the businesses mentioned can meet all the requirements due to there locations. Maybe they don’t have to because of that…..I’m just wondering how to rectify the issue.

Mr powers
Guest
Mr powers

If a business doesn’t want to have accessibility it shouldn’t have too. I had an office for 5 years in henrico and had to spend 10K on making it accessible and never once did a guy roll in to use any of it! I always said the first handicap guy too walk in will get a $1000 check from me. This country is going to lose to countries that don’t have as many barriers to having business. All you employees will always be employees because going into business is too expensive for most. I got lucky……………my kids will be lucky…………so… Read more »

Kevin Rouba
Guest

Wonderful article! It’s about time someone’s trying to enforce ADA in Richmond. At “blackbeered” – that’s great that you can call these restaurants “greasy spoons” and try to down play the issue here as if they’re nothing special. Fact is.. you get to go to these restaurants and she…doesn’t. She’ll never know that these places aren’t special, because she’s treated as a second class citizen. Munch on that one. Oh and I love how you come to the conclusion that a business that spends money to become ADA compliant will raise prices, then will lose customers, then their family becomes… Read more »

Business owner
Guest
Business owner

Scott, I met you one day and we talked about my restaurant. I owned 2 locations at the time. You told me that you preferred one to the other because of the entrance was more accessible. I was unaware and fixed it immediately.
That was all it took.
We opened our restaurant in a previous location and just recently were targeted by one of these lawsuits. We of course fixed all issues that were wrong plus paying thousands in lawyer fees.
I am happy to fix and comply, but the process almost comes off as a scam.

Kevin Anderson
Guest
Kevin Anderson

I don’t mean to come off as cold hearted but for many of these establishments I don’t see how ADA compliance is even possible. I firmly believe that handicapped individuals should be able to dine and shop where they choose but in many cases I don’t see how a solution is viable. Specifically in the case of restaurants in city. I’m not even handicapped and I have a hard time moving around in many of these places. Most of these restaurants barely have enough dining square footage to be profitable to begin with, just look at the restricted amount of… Read more »

Scott Dickens
Guest
Scott Dickens

I love the comment from Mr Powers that businesses shouldn’t have to serve everyone (so do Jim Crowe laws not apply, too?) and if you’re waiting for the “handicap guy too(sic) walk in” then you might not understand. At all. By the way, if you’d sign your name or identify yourself, I’d be happy to roll in for my $1k! 😉 Again, I’m torn. There are places I love in town (Sticky Rice – love ya John!) that I have to get helped into because of a step at the front. I just don’t drink when I go there –… Read more »

Kevin Rouba
Guest

There are between 2.7 Million wheelchair users according to 2002 US census data (which is just over 1% of the population), it’s more then you would think.

Chris Terrell
Guest

I’m with Scott Dickens. This is not an easy issue. I guess the kicker for me is the age of the law. Say, for example, this law had passed in 2010 and a mere one year later small businesses were getting slammed with unexpected costs they genuinely were unprepared for. I would have a lot more sympathy for business owners and a good deal less for the litigants. But that is not the case here. The law on the books is *older than the plaintiff*. Businesses have had more than enough time to get into compliance. Ignorance of the law… Read more »

Andrew Moore
Guest

I won’t pretend to be an expert on the legal issues surrounding ADA, but as an architect, I can respond to a couple of the comments that wondered about the building code. Basically, the Virginia Uniform Statewide Building Code (VUSBC), has provisions for providing accessibility for new construction and renovations. The trigger for enforcement is the permitting process at the local level. For existing conditions, there are some baseline life-safety provisions that have to be met for occupancy, but for the most part, unless there is a change in use, the existing conditions are grandfathered in and considered compliant with… Read more »

Wes Fortin
Guest
Wes Fortin

It’s a difficult issue. In new buildings, there’s no reason not to comply. But what about old buildings like in the typical down town which has numerous old landmark buildings that don’t have doors large enough for a wheel chair? Should land owners be forced to knock holes in the walls and widen doorways, perhaps even hallways, and redo restrooms and such to accommodate wheelchairs? If so, which wheelchairs? The width varies. What about buildings with access below street level where the door is accessed by going down a narrow stairway? Do they rip up the street and re-build the… Read more »

John
Guest
John

As someone who has done accessibility surveys as part of my job, I’d like to add that the ADA does not require every existing business to meet all of the guidelines. The key terms are “readily achievable” and “able to be carried out without much difficulty or expense” Note the reference to expense. “Barrier Removal in Existing Facilities Public accommodations covered by Title III of the ADA must remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable. The ADA generally defines readily achievable as “easily accomplishable and able to… Read more »