A tiara, a sash and lawsuits against local restaurant
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.
This story first appeared on RichmondBizSense.com, Richmond’s leading source for business news.
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.
Al Harris is a BizSense reporter. Please send news tips to Al@richmondbizsense.com.
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Notice: Comments that are not conducive to an interesting and thoughtful conversation may be removed at the editor’s discretion.
Richmond BizSense covered a similar issue back in March of 2009:
http://www.richmondbizsense.com/2009/03/04/the-business-of-accessibility/
Personally, I’m torn. I understand the purpose of the ADA and think having places accessible makes sense, but if a business chooses not to do so, that’s a choice they make and a business decision they’ll have to live with.
But it’s especially hard for businesses in urban areas to adapt. Ramps need a lot of room, parking’s bad enough for people without disabilities, buildings are barely large enough to hold businesses as they are.
The whole thing just smacks of lawyers seeing dollars.
A very close friend uses a wheelchair, and going out with her in Richmond can be a nightmare. If we’re going somewhere we haven’t been before, one of us will call to confirm the restaurant is accessible. I can’t even tell you the number of times the manager will say it is, only to get there and find there’s a giant step up to the entrance, or the tables are so close together she can’t get through, or the bathrooms are too small (or there is an ADA restroom…at the bottom of a flight of stairs). “Pretty much” accessible or “almost” accessible or “mostly” accessible doesn’t cut it.
I’m a firm believer in avoiding lawsuits whenever possible, but if this is what it takes to make Richmond available to anyone who wants to spend money here, then I say let’s go for it.
The ADA is a bad law. It takes what ought to be local zoning and access ordinances and turns them into Federal civil rights cases ripe for predatory lawsuits. Adding in the whole beauty-pageant narcissism angle is sheer brilliance.
I wonder how many years out we are from prosthetic and regenerative technology advances making wheelchairs obsolete?
That’s if there are any businesses left to spend money in.. It’s much easier to build a prefab restaurant in the suburbs than for many of these independent businessmen to carve their restaurants up, install new bathrooms and lose a quarter of their parking. These entrepreneurs are stuck between a rock and a hard place, either making expensive modifications or taking their chances in court. No wonder they are such a rare breed.
As for the lawyers, this is easy money. If you are in business, there is no such thing.
“Richmond…open for business”
Yeah, right! This is BS!
naw, she’s a bitch. Part of richmond’s shitty restaurant charm is the cramped bathrooms and the awkward walk ways.
Way to go after the little guy, though, you are really doing gods work.
*fart noise*
I don’ see how it is possible for every restaurant in Richmond to be accessible. How can homes built in 1905 that are turned into small restaurants accommodate wheelchairs?
I understand the need of fulfilling ADA and making these places accessible. I only hope that the small business does not have to bear the whole burden. After all, they had the approval from the city’s code compliance before they could open for business. If they were not up to ADA law, how could they meet code?
I’m also bothered by Zweben’s comments on the legal fees. It sounds a lot like extortion.
i’m not sure if proponents of this tactic understand that these restaurants, these businesses, have limited funds to take on an ADA-compliant renovation.
this will kill or chase hard-working restaurants out of business. and we will be left with a chain-restaurant bonanza in short pump to define RVA food. it won’t open more opportunities for the disabled.
I wonder how many years out we are from prosthetic and regenerative technology advances making wheelchairs obsolete?
—
Not close enough for my friend…
The law requires “reasonable” accessibility updates for existing buildings. It’s not reasonable for many Richmond restaurants to install ramps/lifts or use the gigantic ADA bathrooms. It’s not just about wheelchair accessibility though; things like new door handles and closers that meet ADA requirements are “reasonable”. But then, what’s “reasonable?” That’s for the lawyers to argue over the law that lawyers wrote.
Yeah, as Wolf says, the key is the word “reasonable.” And as Maggie says, it’s really super difficult for people in a wheelchair to get around in this town. I think that this is really an issue of equality.
I mean, god forbid any of you ever lose your ability to walk. A little understanding and compassion goes a long way here, folks. Have you never known anyone who was differently-abled? Sheesh. Some of y’all are embarrassingly hateful.
this is such a sleezy lawyer scam.non of these go to court, no changes are ever made the lawyers just get paid.
The answer here is to make the changes inside the businesses.
For new businesses:
Do it when you are doing the build-out. Put it in your start-up costs. It is just one more cost of doing biz in the 21st century.
For existing business: Look at the expense as you would any other building up-keep.
Would you patronize an establishment with faulty wiring? Non-working plumbing? This is just a version of the same thing and just good business.
For government, fed or local: Give tax breaks to biz making ADA improvements so all it really costs them is a few growing pains and saw dust. (I don’t know but there may already be some kind of program – they have it for a lot of other things, why not this)
I commend Miss Swann for doing this. She probably chose counsel based on his experience in these matters. Any discussion is good as it is creating awareness about the issue.
As you can see in Miss Swann, not all access is for the older crowd.
Don’t you think she wants to sing karaoke and party at Sticky sometime? My partner and I did too till we saw the stairs to the bathroom.
I wonder how many commenters have had to look in from the outside or leave an establishment just because they could not use the facilities…
It frustrates you and makes you feel like a 2nd class citizen.
It sucks.
As far as parking goes, that’s the easy part. We all have that problem in the city.
Mary, no, I wouldn’t patronize those establishments. But I wouldn’t sue them either.
These lawsuits are are crap. For a restaurant to open in Richmond requires a Certificate of Occupancy, Health Permit, Fire Inspection, etc… Pieces of paper from the government that you are in compliance with more regulatory agencies than were watching Bernard Madoff.
Making every building wheelchair accessible is unfortunately not a reality; one of the many unpleasant realities of living in a wheelchair.
I can’t drive an 18-Wheeler, Dump Truck, Bull Dozer or Back Hoe down a paved carriage-trail , so it looks like I am going to need to buy a pre-existing home, if I want to live in a 200 year old neighborhood. My family builds new homes.
It is unfortunate that some businesses in historic shopping areas will suffer from not having these potential customers as patrons. It is more unfortunate that serial “settlements” for legal fees would not be prosecuted as extortion by the Attorney General, maybe they will get to it right after the Commonwealth becomes ADA compliant.
Don’t worry, you still have to get down the badly paved streets, find a parking space & stumble over the broken (rampless) sidewalks in Richmond regardless of your ability; unless you can fly.
So turn that crown upside down. There are so many better ways to make a difference, like actually work for real change. Sad.
Are any of the lawsuits being defended? One defendant was contacted by a defence firm before it was served.
@csb I agree. As soon as I saw this article, I braced myself for the upsetting comments that I knew would follow. My dad’s in a wheelchair and we can’t take him anywhere. Weddings, dinners, our own houses…anything downtown. I’m not filing lawsuits because, like I said, my own house is included in this because I don’t have the money to ramp it up, but it does help my opinion of an establishment if it feels like they’re making the effort. For whatever that’s worth.
To CSB and Susan Howson:
This law is not being used to get businesses to make reasonable changes to accommodate handicapped individuals. It is being used to enrich unethical lawyers. If the so-called plaintiffs are not getting a kick-back, I would be very surprised.