UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Richard Wagner, 

Plaintiff,

v.

Viking Partners Kenwood, LLC, an Ohio 

limited liability company

Defendant.

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Case No. 1:18-cv-58

Judge 

Magistrate Judge

NOW COMES Richard Wagner, individually, by and through the undersigned counsel, 

Owen B. Dunn, Jr. and Valerie J. Fatica, Co-Counsel for Plaintiff, who hereby files this 

Complaint against the named Defendant for injunctive relief, damages, attorneys’ fees, litigation 

expenses, and costs pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

(“ADA”), alleging as follows: 

JURISDICTION AND VENUE

1. This action is brought by the Plaintiff, Richard Wagner, individually, and on behalf of 

individuals similarly situated, pursuant to the enforcement provision of the American 

with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12188(a), against the Defendant

as delineated herein. 

2. The Court has jurisdiction pursuant to the following statutes: 28 U.S.C. § 1331, which 

governs actions that arise from the Defendant’ violations of Title III of the ADA, 42 

U.S.C. § 12181, et seq.; 28 U.S.C. § 1331, which gives the District Courts original 

jurisdiction over civil actions arising under the Constitution, laws, or treaties of the 

United States; 28 U.S.C. § 1343(3) and (4), which gives District Courts jurisdiction over 

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actions to secure civil rights extended by the United States government; and 28 U.S.C. § 

1367, as Count II utilizes the same core of operative facts as Count I, and is therefore 

subject to supplemental jurisdiction. 

3. Venue is proper in the Southern District of Ohio as venue lies in the judicial district of 

the property situs. The Defendant’s property and/or operations, as complained of by 

Plaintiff, are located in this judicial district, where the business of public accommodation 

is conducted, including the acts complained of herein. 

PARTIES

4. Plaintiff, Richard Wagner, is a Franklin County, Ohio resident, is sui juris, and qualifies 

as an individual with disability as defined by the ADA, 42 U.S.C. § 12102(2), 28 C.F.R. 

36.104. 

5. Defendant Viking Partners Kenwood, LLC, upon information and belief, operates the 

business located at 8118 Montgomery Rd, Cincinnati, OH 45236 in Hamilton County, 

Ohio, which is a shopping plaza known as Kenwood Galleria. Plaintiff has patronized

Defendant’s property and the facilities thereon previously as a place of public 

accommodation, and he has experienced the barriers to access complained of herein. 

6. Upon information and belief, the facility owned or operated by the Defendant is noncompliant with the remedial provisions of the ADA. As Defendant either owns, leases, 

leases to, or operates a place of public accommodation as defined by the ADA and the 

regulations implementing the ADA, 28 CFR 36.201(a) and 36.104, Defendant is

responsible for complying with the obligations of the ADA. Defendant’s shopping plaza

is a place of public accommodation. Defendant’s property fails to comply with the ADA 

and its regulations, as also described further herein.

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7. Mr. Wagner is a paraplegic and permanently uses a wheelchair for mobility. As such, he 

is substantially limited in performing one or more major life activities, including but not 

limited to, standing and walking, as defined by the ADA and its regulations thereto. 

8. Mr. Wagner is a current Franklin County, Ohio resident, but for 19 years, resided in the 

Deer Park community of Cincinnati in Hamilton County. Plaintiff’s brother still resides 

in the City of Cincinnati and Plaintiff has many friends and family living within the city 

whom he visits regularly. As such, he frequents the restaurants, parks, and other 

recreation establishments of Cincinnati, including the Defendant’s property that forms the 

subject of this complaint.

9. On or about September 7, 2017, and on prior occasions, Plaintiff patronized the 

Defendant’s property, and he plans to return to the property to avail himself of the goods 

and services offered to the public at the property. The Plaintiff has encountered 

architectural barriers at the subject property. The barriers to access at the property have 

endangered his safety and protected access to Defendant’s place of public 

accommodation. 

10. Completely independent of the personal desire to have access to this place of public 

accommodation free of illegal barriers to access, Plaintiff also acts as a "tester" for the 

purpose of discovering, encountering, and engaging discrimination against the disabled in 

public accommodations. When acting as a "tester," Plaintiff employs a routine practice. 

Plaintiff personally visits the public accommodation; engages all of the barriers to access, 

or at least all of those that Plaintiff is able to access; and tests all of those barriers to 

access to determine whether and the extent to which they are illegal barriers to access; 

proceeds with legal action to enjoin such discrimination; and subsequently returns to the 

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premises to verify its compliance or non-compliance with the ADA and to otherwise use 

the public accommodation as members of the able-bodied community are able to do. 

Independent of other visits, Plaintiff also intends to visit the premises annually to verify 

its compliance or non-compliance with the ADA, and its maintenance of the accessible 

features of the premises. In this instance, Plaintiff, in Plaintiff’s individual capacity as 

customer and as a “tester,” visited the shopping center, encountered barriers to access at 

the shopping center, and engaged and tested 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 and the ADA violations set forth herein.

11. Plaintiff has a realistic, credible, existing and continuing threat of discrimination from the 

Defendant’s non-compliance with the ADA with respect to this property as described but 

not necessarily limited to the allegations contained in this complaint. Plaintiff has 

reasonable grounds to believe that he will continue to be subjected to discrimination in 

violation of the ADA by the Defendant. Plaintiff desires to visit the Defendant’s place of 

business again on future occasions, not only to avail himself of the goods and services 

available at the property but to assure himself that this property is in compliance with the 

ADA so that he and others similarly situated will have full and equal enjoyment of the 

shopping plaza without fear of discrimination.

12. The Defendant has discriminated against the individual Plaintiff by denying him access to 

the full and equal enjoyment of the goods, services, facilities, privileges, advantages 

and/or accommodations of the buildings, as prohibited by 42 U.S.C. § 12182 et seq.

13. The Defendant has discriminated, and is continuing to discriminate, against the Plaintiff 

in violation of the ADA by failing to, inter alia, have accessible facilities by January 26, 

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1992 (or January 26, 1993, if Defendant has 10 or fewer employees and gross receipts of 

$500,000 or less). 

14. A preliminary inspection of the shopping plaza owned or operated by Defendant has 

shown that many violations of the ADA exist at the subject property. These violations 

include, but are not limited to: 

Accessible Routes

A. The accessible routes through the shopping center are located on an excess 

slope and cross-slope, in violation of the ADA whose remedy is readily 

achievable.

B. There is no accessible route from this facility to public transportation stops or 

public streets and sidewalks, in violation of the ADA whose remedy is readily 

achievable.

C. There are cracks and changes in level in excess of 1⁄4 inch along the accessible 

route, in violation of the ADA whose remedy is readily achievable.

D. There is not one accessible route to connect all accessible buildings, 

accessible facilities, accessible elements, and accessible spaces that are on the 

site, in violation of the ADA whose remedy is readily achievable.

Parking Access:

E. There are an insufficient number of designated accessible parking spaces, in 

violation of the ADA whose remedy is readily achievable.

F. Designated accessible parking is not disbursed throughout the plaza, in 

violation of the ADA whose remedy is readily achievable.

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G. The designated accessible parking spaces lack required access aisles, in 

violation of the ADA whose remedy is readily achievable.

H. Designated accessible parking is not located on the shortest accessible route to 

the retail entrances, in violation of the ADA whose remedy is readily 

achievable.

I. There are no designated van accessible parking spaces, in violation of the 

ADA whose remedy is readily achievable.

Jimmy John’s:

J. There are no accessible dining surfaces in the restaurant, in violation of the 

ADA whose remedy is readily achievable.

K. Signage on the restaurant’s restrooms is not compliant, including a lack of the 

international symbol of accessibility, in violation of the ADA whose remedy 

is readily achievable.

Golf Exchange

L. There is no accessible route to access Golf Exchange due to steps, in violation 

of the ADA whose remedy is readily achievable.

Policies and Procedures:

M. The operator lacks or has inadequately defined policies and procedures for the 

assistance of disabled patrons, in contravention of the ADA whose remedy is 

readily achievable. 

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15. The discriminatory violations described in Paragraph 14 by the Defendant are not an 

exclusive list of the ADA violations believed to exist at the place of public 

accommodation. Plaintiff requires further inspection of the Defendant’s place of public 

accommodation in order to photograph and measure all of the discriminatory acts 

violating the ADA and all of the barriers to access. The Plaintiff has been denied access 

to Defendant’s accommodations; benefit of services; activities; and has otherwise been 

discriminated against and damaged by the Defendant, as set forth above. The individual 

Plaintiff, and all others similarly situated will continue to suffer such discrimination, 

injury and damage without the immediate relief provided by the ADA as requested 

herein. In order to remedy this discriminatory situation, the Plaintiff requires an 

inspection of the Defendant’s place of public accommodation in order to determine all of 

the areas of non-compliance with the Americans with Disabilities Act.

COUNT I

VIOLATION OF THE AMERICANS WITH DISABILITES ACT

16. Plaintiff restates the allegations of ¶¶1-15 as if fully rewritten here.

17. The shopping plaza at issue, as owned or operated by Defendant, is a place of public 

accommodation and service establishment, and as such, must be, but is not, in 

compliance with the Americans with Disabilities Act ("ADA") or Americans with 

Disabilities Act Accessibility Guidelines ("ADAAG").

18. Plaintiff was unlawfully denied full and equal enjoyment of the goods, services, facilities,

privileges, and advantages of the property on the basis of disability due to Defendant’s

failure to comply with Title III of the Americans with Disabilities Act and its 

accompanying regulations, as prohibited by 42 U.S.C. § 12182, et seq. Defendant will 

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continue to discriminate against Plaintiff and others with disabilities unless and until 

Defendant is compelled to remove all physical barriers that exist at the facilities, 

including those specifically set forth herein, and make the shopping plaza accessible to 

and usable by persons with disabilities, including Plaintiff.

19. The Plaintiff, and others similarly-situated, is presently without adequate remedy at law 

and is being damaged by irreparable harm. Plaintiff reasonably anticipates that he will

continue to suffer irreparable harm unless and until Defendant are required to remove the 

physical barriers, dangerous conditions, and ADA violations that exist at the Facility, 

including those set forth herein.

20. Pursuant to 42 U.S.C. §12188, Plaintiff requests that the Court issue an injunction 

requiring Defendant to make such readily achievable alterations as are legally required to 

provide full and equal enjoyment of the goods, services, facilities, privileges, and 

advantages on its property to disabled persons. In connection with that relief, Plaintiff 

requests reasonable attorney’s fees and costs of maintaining this action.

COUNT II

VIOLATION OF OHIO DISABILITY DISCRIMINATION LAW

O.R.C. §4112.01 et seq.

21. Plaintiff restates the allegations of ¶¶1-20 as if fully rewritten here.

22. The Defendant operates and owns a "place[s] of public accommodation" pursuant to 

O.R.C. § 4112.01(A)(9).

23. Defendant has committed an unlawful act pursuant to O.R.C. § 4112.02(G) by denying

Plaintiff equal access to and use of public accommodations. 

24. Pursuant to O.R.C. §4112.99, Plaintiff is entitled to compensatory and punitive damages as 

necessary to insure justice, and attorneys fees and costs, in an amount to be determined at 

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trial, but in any event not less than $25,000.00, as well as issuance of an injunction 

requiring Defendant to allow full and equal enjoyment of its goods, services, facilities, 

privileges, and advantages to disabled persons.

WHEREFORE, Plaintiff demands,

For COUNT I, an injunction requiring Defendant to make all readily achievable 

alterations and institute policies and procedures to allow full and equal enjoyment of the 

goods, services, facilities, privileges, and advantages to disabled persons, and the 

reasonable attorneys fees and costs of maintaining this action; and, 

For COUNT II, compensatory and punitive damages, attorney’s fees and costs, in an

amount to be determined at trial, but in any event not less than $25,000.00, as well as 

issuance of an injunction requiring Defendant to allow full and equal enjoyment of the 

goods, services, facilities, privileges, and advantages to disabled persons.

Respectfully Submitted,

Co-Counsel for Plaintiff:

/s/ Owen B Dunn Jr.

Owen B. Dunn, Jr., Esq. (0074743)

Law Offices of Owen Dunn, Jr.

The Ottawa Hills Shopping Center

4334 W. Central Ave., Suite 222

Toledo, OH 43615

(419) 241-9661 – Phone

(419) 241-9737 - Facsimile

dunnlawoffice@sbcglobal.net

and

Valerie J. Fatica (0083812)

4334 W. Central Ave., Suite 222

Toledo, OH 43615

(419) 654-1622 – Phone

(419) 241-9737 – Facsimile

valeriefatica@gmail.com

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