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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RYAN PFLIPSEN, )

)

Plaintiff, )

) CIVIL ACTION

vs. )

) FILE No. 5:20-cv-494

FIRST WATCH RESTAURANTS )

TEXAS, INC., and COLANNADE III )

SHOPPING CENTER, LLC, ) 

)

Defendants. )

COMPLAINT

COMES NOW, RYAN PFLIPSEN, by and through the undersigned counsel, and 

files this, his Complaint against Defendants FIRST WATCH RESTAURANTS TEXAS, 

INC., and COLONNADE III SHOPPING CENTER, LLC, pursuant to the Americans 

with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”) and the ADA’s Accessibility 

Guidelines, 28 C.F.R. Part 36 (“ADAAG”). In support thereof, Plaintiff respectfully 

shows this Court as follows:

JURISDICTION

1. This Court has original jurisdiction over the action pursuant to 28 U.S.C. §§ 

1331 and 1343 for Plaintiff’s claims pursuant to 42 U.S.C. § 12181 et seq., based upon 

Defendants’ failure to remove physical barriers to access and violations of Title III of the 

ADA.

PARTIES

2. Plaintiff RYAN PFLIPSEN (hereinafter “Plaintiff”) is, and has been at all 

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times relevant to the instant matter, a natural person residing in San Antonio, Texas

(Bexar County).

3. Plaintiff is disabled as defined by the ADA. 

4. Plaintiff is required to traverse in a wheelchair and is substantially limited 

in performing one or more major life activities, including but not limited to: walking, 

standing, grabbing, grasping and/or pinching. 

5. Plaintiff uses a wheelchair for mobility purposes. 

6. Plaintiff is also an independent advocate of the rights of similarly situated 

disabled persons and is a “tester” for the purpose of asserting his civil rights, monitoring, 

ensuring, and determining whether places of public accommodation are in compliance 

with the ADA. His motivation to return to a location, in part, stems from a desire to 

utilize ADA litigation to make Plaintiff’s community more accessible for Plaintiff and 

others, and pledges to do whatever is necessary to create the requisite standing to confer 

jurisdiction upon this Court so an injunction can be issued correcting the numerous ADA 

violations on this Property, including returning to the Property as soon as it is accessible 

(“Advocacy Purposes”).” 

7. Defendant FIRST WATCH RESTAURANTS TEXAS, INC. (hereinafter 

“First Watch”) is a Texas for profit corporation that transacts business in the state of 

Texas and within this judicial district. 

8. First Watch may be properly served with process via its registered agent for 

service, to wit: Corporation Service Company d/b/a CSC, 211 East 7th Street, Suite 620, 

Austin, Texas, 78701.

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9. Defendant COLONNADE III SHOPPING CENTER, LLC (hereinafter 

“Colonnade III”) is a limited liability company that transacts business in the state of 

Texas and within this judicial district. 

10. Colonnade III may be properly served with process through its registered 

agent, to wit: James E. Trippon, 8955 Katy Freeway, Suite 310, Houston, Texas 77024.

FACTUAL ALLEGATIONS

11. On or about August 6, 2019, Plaintiff was a customer at “First Watch – The 

Daytime Cafe” a business located at 9985 Frontage Road, San Antonio, Texas 78230, 

referenced herein as the “First Watch.” 

12. First Watch is the lessee or sub-lessee of the real property and 

improvements that are the subject of this action. 

13. Colonnade III is the owner or co-owner of the real property and 

improvements that the First Watch is situated upon and that is the subject of this action, 

referenced herein as the “Property.” 

14. Plaintiff lives approximately 4 miles from the First Watch and Property.

15. Plaintiff’s access to the business(es) located at 9985 Frontage Road, San 

Antonio, Bexar County Property Identification number 564925 (“the Property”), and/or 

full and equal enjoyment of the goods, services, foods, drinks, facilities, privileges, 

advantages and/or accommodations offered therein were denied and/or limited because of

his disabilities, and he will be denied and/or limited in the future unless and until 

Defendant is compelled to remove the physical barriers to access and correct the ADA 

violations that exist at the First Watch and Property, including those set forth in this 

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Complaint. 

16. Plaintiff has visited the Property at least once before as a customer and 

advocate for the disabled. Plaintiff intends on revisiting the Property within six months 

after the barriers are removed to access detailed in this Complaint are removed and the 

Property is accessible again. The purpose of the revisit is to be a return customer, to 

determine if and when the Property are made accessible and to maintain standing for this 

lawsuit for Advocacy Purposes.

17. Plaintiff intends to revisit the First Watch and Property to purchase goods 

and/or services.

18. Plaintiff travelled to the First Watch and Property as a customer and as an 

independent advocate for the disabled, encountered or were made aware of the barriers to 

access at the First Watch and Property that are detailed in this Complaint, engaged 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 present at the First Watch and Property.

COUNT I

VIOLATIONS OF THE ADA AND ADAAG

19. On July 26, 1990, Congress enacted the Americans with Disabilities Act 42 

U.S.C. § 12101 et seq.

20. Congress found, among other things, that:

(i) some 43,000,000 Americans have one or more physical or mental 

disabilities, and this number is increasing as the population as a 

whole is growing older;

(ii) historically, society has tended to isolate and segregate individuals 

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with disabilities, and, despite some improvements, such forms of 

discrimination against individuals with disabilities continue to be a 

serious and pervasive social problem;

(iii) discrimination against individuals with disabilities persists in such 

critical areas as employment, housing public accommodations, 

education, transportation, communication, recreation, 

institutionalization, health services, voting, and access to public 

services;

(iv) individuals with disabilities continually encounter various forms of 

discrimination, including outright intentional exclusion, the 

discriminatory effects of architectural, transportation, and 

communication barriers, overprotective rules and policies, failure to 

make modifications to existing facilities and practices, exclusionary 

qualification standards and criteria, segregation, and relegation to 

lesser service, programs, activities, benefits, jobs, or other 

opportunities; and

(v) the continuing existence of unfair and unnecessary discrimination 

and prejudice denies people with disabilities the opportunity to 

compete on an equal basis and to pursue those opportunities for 

which our free society is justifiably famous, and costs the United 

States billions of dollars in unnecessary expenses resulting from 

dependency and non-productivity.

42 U.S.C. § 12101(a)(1) - (3), (5) and (9).

21. Congress explicitly stated that the purpose of the ADA was to: 

(i) provide a clear and comprehensive national mandate for the 

elimination of discrimination against individuals with disabilities;

(ii) provide a clear, strong, consistent, enforceable standards addressing 

discrimination against individuals with disabilities; and

* * * * *

(iv) 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 day-to-day 

by people with disabilities.

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42 U.S.C. § 12101(b)(1)(2) and (4).

22. The congressional legislation provided places of public accommodation 

one and a half years from the enactment of the ADA to implement its requirements. 

23. The effective date of Title III of the ADA was January 26, 1992 (or January 

26, 1993 if a defendant has 10 or fewer employees and gross receipts of $500,000 or 

less). 42 U.S.C. § 12181; 28 C.F.R. § 36.508(a).

24. The First Watch is a public accommodation and service establishment.

25. The Property is a public accommodation and service establishment. 

26. Pursuant to the mandates of 42 U.S.C. § 12134(a), on July 26, 1991, the 

Department of Justice and Office of Attorney General promulgated federal regulations to 

implement the requirements of the ADA. 28 C.F.R. Part 36. 

27. Public accommodations were required to conform to these regulations by 

January 26, 1992 (or by January 26, 1993 if a defendant has 10 or fewer employees and 

gross receipts of $500,000 or less). 42 U.S.C. § 12181 et seq.; 28 C.F.R. § 36.508(a).

28. The First Watch must be, but is not, in compliance with the ADA and 

ADAAG. 

29. The Property must be, but is not, in compliance with the ADA and 

ADAAG. 

30. Plaintiff has attempted to, and has to the extent possible, accessed the First 

Watch and the Property in his capacity as a customer of the First Watch and Property and 

as an independent advocate for the disabled, but could not fully do so because of his 

disabilities resulting from the physical barriers to access, dangerous conditions and ADA

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violations that exist at the First Watch and Property that preclude and/or limit his access 

to the First Watch and Property and/or the goods, services, facilities, privileges, 

advantages and/or accommodations offered therein, including those barriers, conditions 

and ADA violations more specifically set forth in this Complaint.

31. Plaintiff intends to visit the First Watch and Property again in the very near 

future as a customer in order to utilize all of the goods, services, facilities, privileges, 

advantages and/or accommodations commonly offered at the First Watch and Property

and as an independent advocate for the disabled, but will be unable to fully do so because 

of his disability and the physical barriers to access, dangerous conditions and ADA

violations that exist at the First Watch and Property that preclude and/or limit his access 

to the First Watch and Property and/or the goods, services, facilities, privileges, 

advantages and/or accommodations offered therein, including those barriers, conditions 

and ADA violations more specifically set forth in this Complaint. 

32. Defendants have discriminated against Plaintiff (and others with 

disabilities) by denying his access to, and full and equal enjoyment of the goods, services, 

facilities, privileges, advantages and/or accommodations of the First Watch and Property, 

as prohibited by, and by failing to remove architectural barriers as required by, 42 U.S.C. 

§ 12182(b)(2)(A)(iv).

33. Defendants will continue to discriminate against Plaintiff and others with 

disabilities unless and until Defendants are compelled to remove all physical barriers that 

exist at the First Watch and Property, including those specifically set forth herein, and 

make the First Watch and Property accessible to and usable by Plaintiff and other persons 

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with disabilities.

34. A specific list of unlawful physical barriers, dangerous conditions and 

ADA violations which Plaintiff experienced and/or observed that precluded and/or 

limited Plaintiff’s access to the First Watch and Property and the full and equal 

enjoyment of the goods, services, facilities, privileges, advantages and accommodations 

of the First Watch and Property include, but are not limited to:

(a) ACCESSIBLE ELEMENTS: 

(i) Near Unit 9991, the accessible parking space is missing a proper identification 

sign in violation of section 502.6 of the 2010 ADAAG standards. This 

violation would make it difficult for Plaintiff to locate an accessible parking 

space.

(ii) Near First Watch, the access aisle to the accessible parking spaces is not level 

due to the presence of an accessible ramp in the access aisle in violation of 

section 502.4 of the 2010 ADAAG standards. This violation would make it 

dangerous and difficult for Plaintiff to exit and enter their vehicle while parked 

at the Property. 

(iii) Near First Watch, the accessible curb ramp is improperly protruding into 

the access aisle of the accessible parking space in violation of section 406.5 of 

the 2010 ADAAG Standards. This violation would make it difficult and 

dangerous for Plaintiff to exit/enter their vehicle.

(iv) Near First Watch, the accessible parking space is not level due to the 

presence of the accessible ramp in the accessible parking space in violation of 

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section 502.4 of the 2010 ADAAG standards. This violation would make it 

dangerous and difficult for Plaintiff to exit and enter their vehicle while parked 

at the Property.

(v) Near First Watch, due to a policy of placing tables and chairs in close 

proximity to the accessible ramp, the landing at the top of the accessible ramp 

did not have 36 (thirty-six) inch clear space in violation of section 406.4 of the 

2010 ADAAG standards. This violation would make it difficult and dangerous 

for Plaintiff to access the Property.

(vi) Near First Watch, there is an excessive vertical rise at the top of the 

accessible ramp in violation of Section 303.2 and 405.4 of the 2010 ADAAG 

standards. This violation would make it dangerous and difficult for Plaintiff to 

access public features of the Property.

(vii) Near First Watch, the Property has an accessible ramp leading from the 

accessible parking space to the accessible entrances with a slope exceeding 

1:12 in violation of section 405.2 of the 2010 ADAAG standards. This 

violation would make it difficult and dangerous for Plaintiff to access the units 

of the Property. 

(viii) Near Unit 9991, the Property has an accessible ramp leading to the 

accessible entrances with a slope exceeding 1:12 in violation of section 405.2 

of the 2010 ADAAG standards. This violation would make it difficult and 

dangerous for Plaintiff to access the units of the Property. 

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(ix) Defendants fail to adhere to a policy, practice and procedure to ensure that 

all facilities are readily accessible to and usable by disabled individuals.

35. The violations enumerated above may not be a complete list of the barriers, 

conditions or violations encountered by Plaintiff and/or which exist at the First Watch

and Property. 

36. Plaintiff requires an inspection of First Watch and Property in order to 

determine all of the discriminatory conditions present at the First Watch and Property in 

violation of the ADA. 

37. The removal of the physical barriers, dangerous conditions and ADA 

violations alleged herein is readily achievable and can be accomplished and carried out 

without significant difficulty or expense. 42 U.S.C. § 12182(b)(2)(A)(iv); 42 U.S.C. § 

12181(9); 28 C.F.R. § 36.304.

38. All of the violations alleged herein are readily achievable to modify to 

bring the First Watch and Property into compliance with the ADA.

39. Upon information and good faith belief, the removal of the physical barriers 

and dangerous conditions present at the First Watch and Property is readily achievable 

because the nature and cost of the modifications are relatively low.

40. Upon information and good faith belief, the removal of the physical barriers 

and dangerous conditions present at the First Watch and Property is readily achievable 

because Defendants have the financial resources to make the necessary modifications.

41. Upon information and good faith belief, the First Watch and Property have 

been altered since 2010.

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42. In instances where the 2010 ADAAG standards do not apply, the 1991 

ADAAG standards apply, and all of the alleged violations set forth herein can be 

modified to comply with the 1991 ADAAG standards.

43. Plaintiff is without adequate remedy at law, is suffering irreparable harm, 

and reasonably anticipates that he will continue to suffer irreparable harm unless and 

until Defendants are required to remove the physical barriers, dangerous conditions and 

ADA violations that exist at the First Watch and Property, including those alleged herein. 

44. Plaintiff’s requested relief serves the public interest.

45. The benefit to Plaintiff and the public of the relief outweighs any resulting 

detriment to Defendants.

46. Plaintiff’s counsel is entitled to recover its reasonable attorney’s fees and 

costs of litigation from Defendants pursuant to 42 U.S.C. §§ 12188 and 12205.

47. Pursuant to 42 U.S.C. § 12188(a), this Court is provided authority to grant 

injunctive relief to Plaintiff, including the issuance of an Order directing Defendants to 

modify the First Watch and Property to the extent required by the ADA.

WHEREFORE, Plaintiff prays as follows:

(a) That the Court find First Watch in violation of the ADA and ADAAG;

(b) That the Court find Colonnade III in violation of the ADA and ADAAG;

(c) That the Court issue a permanent injunction enjoining Defendants from 

continuing their discriminatory practices;

(d) That the Court issue an Order requiring Defendants to (i) remove the 

physical barriers to access and (ii) alter the subject First Watch to make it

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readily accessible to and useable by individuals with disabilities to the 

extent required by the ADA;

(e) That the Court award Plaintiff his reasonable attorneys' fees, litigation 

expenses and costs; and

(f) That the Court grant such further relief as deemed just and equitable in light 

of the circumstances.

Dated: April 23, 2020.

Respectfully submitted,

/s/ Dennis R. Kurz

Dennis R. Kurz

Attorney-in-Charge for Plaintiff

Texas State Bar ID No. 24068183

Kurz Law Group, LLC

4355 Cobb Parkway, Suite J-285

Atlanta, GA 30339

Tele: (404) 805-2494

Fax: (770) 428-5356

Email: dennis@kurzlawgroup.com 

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