Former Ms. Wheelchair Nebraska sues restaurants over accessibility

From The Journal Star in Lincoln, Neb.

In 2008, Lorinda Brown (pictured) held the title of Ms. Wheelchair Nebraska.

She wrote monthly updates during her reign, telling of her trip to the national pageant, of speeches to children, of being inspired by a spinal cord injury support group.

Eleven times since then, Brown has taken on a different title: plaintiff.

In January, Brown, of Grand Island, sued the ownership groups of Lincoln restaurants Grisanti's and Brewsky's in U.S. District Court, claiming the businesses violated federal Americans with Disabilities Act laws.

Most of her complaints in the 11 suits have been settled quickly.

But attorneys representing Grandmother's, which she sued in May, have in court documents referred to Brown's actions as those of a "serial plaintiff's." And Grandmother's, 6940 A St., is battling some of her compliancy requests after addressing most others, some of which were referred to in court documents as "trivial."

An attorney with the Florida law firm representing Brown said she is one of its many clients acting as an advocate for others with disabilities.

Grisanti's management did not respond to a request to comment. A Brewsky's owner declined to comment. The lead attorney for Grandmother's Restaurant could not be reached.

Brown's claims, according to the suits filed this month, are based on in-person visits to the restaurants.

She suffers from spinal muscular atrophy and uses a wheelchair, the lawsuits state. She goes to restaurants as not only a potential customer, but also as a "tester" of the businesses' accessibility to people with disabilities, her lawsuits state.

Title III of the disabilities act prohibits discrimination based on disability in public places as well as private entities such as restaurants, bars, hotels, malls and more.

Attempts to reach Brown were unsuccessful. In court documents, she said she visits such businesses often.

"I travel with my son almost every weekend during his baseball season all over the state of Nebraska, and I am always looking for accessible restaurants to dine at," she said in response to questions from a defense attorney.

In one of two recent suits, she said Brewsky's, 2840 S. 70th St., was inaccessible in 14 ways. The list includes a ramp that is too steep, doors that are too heavy, too few accessible seating positions and too little maneuverable clearance in the bathroom.

Brown alleged 17 ADA violations at Grisanti's, including out-of-reach soap and paper towel dispensers in the women's bathroom, insufficient accessible seating and steep and narrow curb ramps outside the restaurant (and leading to other shops at the retail center at 68th and O streets).

The lawsuits resemble complaints filed by her Florida-based attorney, Stephan Nitz, on behalf of other plaintiffs with disabilities in other states. Since Jan. 1, 2005, his name has appeared on 283 lawsuits filed under the same federal category as Brown's, according to federal records.

Brown learned of the efforts of Nitz and his firm, Schwartz Zweben LLP, at an education seminar, attorney Gene Zweben said.

In a phone interview from Florida, Zweben said that Brown, like many of the firm's clients, refuses to feel limited by her disability and wants to "experience the world and go places."

"When they're out and about, typically restaurants are places (clients) go to, and a lot of them are not compliant," Zweben said.

In the Brewsky's and Grisanti's lawsuits, Brown asks the businesses to comply with ADA standards, to close until they do so and to pay "reasonable attorneys' fees, expert fees, costs and litigation expenses incurred in this action."

Plaintiffs in Title III ADA compliance civil suits cannot seek monetary damages the way one can for a botched operation or a fall inside a business.

"They're purely advocates," Zweben said.

The lawsuits filed last month are a continuation of legal efforts that began last year. In 2009, Brown filed nine ADA-related civil complaints against Nebraska businesses.

Six have been settled and dismissed from court, but three of the suits filed in 2009, including her only other complaint against a Lincoln business, remain in contention.

Grandmother's requested in November that the lawsuit filed against it in May be dismissed after most of Brown's 18 compliance complaints were addressed.

In the filing, attorneys for the restaurant wrote that the complaints included "such things as the height of parking space signs being too low, the absence of rear grab bars in the women's restroom, the side grab bar being too short, the coat hook being too high and other alleged violations, many of which are trivial and have been corrected."

The choice of words did not go unnoticed by Brown's attorney.

"Ms. Brown takes offense to the defendant's characterization ... of her alleged barriers to access as being ‘trivial,'" Nitz wrote in response to the motion to dismiss. "She wonders how any barrier to access that affects people with disabilities can be considered trivial by the people who own Grandmother's, and Grandmother's appears to infer that Ms. Brown brought her case in bad faith."

Attorneys for the restaurant also argued that Brown visited the premises only once and that she didn't even enter the restaurant itself.

"Courts have found that a serial plaintiff's extensive litigation history can undercut a professed interest to return," they wrote.

"(The employee's) alleged encounter of barriers in Grandmother's does not establish injury in fact because she is not confined to a wheelchair, and thus, is not among the injured," Grandmother's contended.

In response, Nitz wrote that Brown is not a serial plaintiff and said the term was used as "an attempt to cast a derogatory light on Ms. Brown before the court."

Nitz also said the fact that the woman who went into Grandmother's does not use a wheelchair is irrelevant.

Nitz wrote that an expert employed by the firm recommended reasonable, inexpensive changes.

Attorneys for Grandmother's have said the remaining changes requested by Brown would be prohibitively expensive and that the restaurant is not required by law to make them because it was built before the disabilities act took effect.

A judge has not ruled on a motion to dismiss filed by Grandmother's. Answers to Brown's complaints against Brewsky's and Grisanti's have not been filed.