UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MICHAEL MILES, Individually,

Plaintiff,

v.

Shaffner & Shaffner Enterprises Inc., an 

Indiana Corporation,

Defendant.

______________________________________

:

:

:

:

:

:

:

:

:

:

:

:

Case No. 3:14-cv-1752

COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

(w/Jury Demand Endorsed Hereon)

Plaintiff, MICHAEL MILES, Individually, (sometimes referred to as “Plaintiff”), 

hereby sue the Defendant SHAFFNER & SHAFFNER ENTERPRISES Inc., an Indiana

Corporation (sometimes referred to as “Defendant”), for Injunctive Relief, and attorney’s fees, 

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

et seq. (“ADA”).

PARTIES

1. Plaintiff, MICHAEL MILES, is an individual residing in Findlay, OH, in the County 

of Hancock.

2. Defendant’s property, WYNDHAM GARDEN WARSAW AND BENNIGAN’S GRILL 

AND TAVERN is located at 2519 E. Center Street, Warsaw, IN in the County of 

KOSCIUSKO.

JURISDICTION AND VENUE

3. Count I is brought pursuant to the laws of the United States, therefore the Court has

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 1 of 10
jurisdiction pursuant to 28 U.S.C. §1331. Count II utilizes the same core of operative 

fact, and is therefore subject to supplemental jurisdiction pursuant to 28 U.S.C. §1367.

4. Venue is properly located in the Northern District of Indiana because venue lies in the 

judicial district of the property situs. The Defendant’s property is located in and does 

business within this judicial district.

5. Pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, this Court has been given original 

jurisdiction over actions which arise from the Defendant’s violations of Title III of the 

Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See also 28 U.S.C. § 2201 

and § 2202.

6. Plaintiff, MICHAEL MILES is an Ohio resident, is sui juris, and qualifies as an 

individual with disabilities as defined by the ADA. Michael Miles is paraplegic and uses 

a wheelchair for mobility. MICHAEL MILES has visited the Hotel and the restaurant 

which forms the basis of this lawsuit on February 26, 2014, on June 21, 2014 and on June 

28, 2014, and 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.. 

7. Michael Miles travels to Northern Indiana on a frequent basis and he frequents the golf 

courses, restaurants, shopping centers, businesses and establishments of Fort Wayne, 

Plymouth, Warsaw, South Bend and surrounding area including the restaurant and hotel 

property subject of this complaint. 

8. 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 

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 2 of 10
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 

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 subsequent 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 a customer and as a “tester,” visited the Facility, encountered 

barriers to access at the Facility, 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.

9. Defendant 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. The 

place of public accommodation that the Defendant owns, operates, leases or leases to is 

known as WYNDHAM GARDEN WARSAW AND BENNIGAN’S GRILL AND 

TAVERN is located at 2519 E. Center Street, Warsaw, IN. 46580.

10. MICHAEL MILES 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 in paragraph 12 of this 

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 3 of 10
complaint. Plaintiff has reasonable grounds to believe that he will continue to be 

subjected to discrimination in violation of the ADA by the Defendant. MICHAEL 

MILES desires to visit WYNDHAM GARDEN WARSAW AND BENNIGAN’S GRILL 

AND TAVERN 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 property without 

fear of discrimination.

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

to, and 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.

12. 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, 

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

$500,000 or less). A preliminary inspection of WYNDHAM GARDEN WARSAW 

AND BENNIGAN’S GRILL AND TAVERN has shown that violations exist. These 

violations include, but are not limited to:

Parking and Accessible Routes

A. No passenger loading zone at lobby registration entrance in violation of the ADA 

whose remedy is readily achievable.

B. No accessible route to entrance due to protruding handrail and curb drop off in 

violation of the ADA whose remedy is readily achievable.

C. Curb ramps have no edge protection and improper slopes in violation of the ADA 

whose remedy is readily achievable.

D. Insufficient number of designated accessible parking spaces in violation of the ADA 

whose remedy is readily achievable.

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 4 of 10
E. No designated accessible van parking in violation of the ADA whose remedy is 

readily achievable.

F. No signage at designated accessible parking spaces in violation of the ADA whose 

remedy is readily achievable.

Guestrooms

G. Curtain rods in excess of allowable height in violation of the ADA whose remedy is 

readily achievable.

H. Insufficient clear floor space around the bed in violation of the ADA whose remedy is 

readily achievable.

I. Closet Rod, Rack, coat hook & ironing board mounted in excess of allowable height 

in violation of the ADA whose remedy is readily achievable.

J. Insufficient latch side clearance to exit guestroom in violation of the ADA whose 

remedy is readily achievable.

K. No side or rear grabs bars at toilet unit in violation of the ADA whose remedy is 

readily achievable.

L. No latch side clearance to exit guestroom bathroom in violation of the ADA whose 

remedy is readily achievable.

M. No fixed seat at roll-in shower in violation of the ADA whose remedy is readily 

achievable.

N. Towel racks mounted in excess of allowable range in violation of the ADA whose

remedy is readily achievable.

O. Flush control not on open side of the toilet unit in violation of the ADA whose 

remedy is readily achievable.

P. No pipe insulation at lavatory in violation of the ADA whose remedy is readily 

achievable.

Q. No control on hand held shower unit in violation of the ADA whose remedy is readily 

achievable.

R. Toilet paper dispenser not located according to ADAAG in violation of the ADA 

whose remedy is readily achievable.

S. Insufficient clear floor space around toilet in violation of the ADA whose remedy is 

readily achievable.

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 5 of 10
LOBBY, Bennigan's and swimming pool RESTROOM

T. No latch side clearance to exit the mens restroom in violation of the ADA whose 

remedy is readily achievable.

U. No pipe insulation under sink in violation of the ADA whose remedy is readily 

achievable.

V. No stall with sufficient clear floor space in violation of the ADA whose remedy is 

readily achievable.

W. Incorrect grab bar configuration in violation of the ADA whose remedy is readily 

achievable.

X. No or incorrect signage mounted designating accessible restrooms in violation of the 

ADA whose remedy is readily achievable.

Y. No lowered urinal stall in violation of the ADA whose remedy is readily achievable.

Z. No latch side clearance to exit pool bathroom in violation of the ADA whose remedy 

is readily achievable.

AA. Paper towels mounted too high in violation of the ADA whose remedy is readily 

achievable.

BB. No accessible toilet stall in any pool area bathroom in violation of the ADA 

whose remedy is readily achievable.

Access to Goods and Services

CC. No adaptive lift at pool or hot tub in violation of the ADA whose remedy is 

readily achievable.

DD. Emergency phone mounted outside reach range and is not located at a level 

ground for use by the disabled.

EE. No accessible dining tables in bar service area at Bennigan’s in violation of the 

ADA whose remedy is readily achievable.

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 6 of 10
FF. No lower bar counter at Bennigan’s in violation of the ADA whose remedy is 

readily achievable.

Policies and Procedures

GG. The operator has inadequate or completely lacks defined policies and procedures 

for the assistance of disabled patrons

13. The discriminatory violations described in paragraph 12 are not an exclusive list of the 

Defendant’s ADA violations. Plaintiff requires the 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, and has been denied the benefits of services, programs and activities of the 

Defendant’s buildings and its facilities, and has otherwise been discriminated against and 

damaged by the Defendant because of the Defendant’s ADA violations, 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

14. Plaintiff restates the allegations of ¶¶1-13 as if fully rewritten here.

15. WYNDHAM GARDEN WARSAW AND BENNIGAN’S GRILL AND TAVERN, and 

the businesses therein, are public accommodations and service establishments, and as 

such must be, but are not, in compliance with the Americans with Disabilities Act 

("ADA") and Americans with Disabilities Act Accessibility Guidelines ("ADAAG").

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 7 of 10
16. Plaintiff was unlawfully denied full and equal enjoyment of the goods, services, facilities,

privileges, and advantages of the property and the businesses therein on the basis of his

disability, due to Defendant’s property failing to be in compliance with Title III of the 

Americans with Disabilities Act and its accompanying regulations. as prohibited by 42 

U.S.C. § 12182, et seq., and will continue to discriminate against Plaintiff and others 

with disabilities unless and until Defendant is compelled to remove all physical barriers 

that exist at the facility, including those specifically set forth herein, and make the 

facility accessible to and usable by persons with disabilities, including Plaintiff.

17. The Plaintiff, and others similarly-situated, are without adequate remedy at law and are 

suffering irreparable harm, and reasonably anticipate that they will continue to suffer 

irreparable harm unless and until Defendant is required to remove the physical barriers, 

dangerous conditions and ADA violations that exist at the Facility, including those set 

forth herein.

18. Pursuant to 42 U.S.C. §12187, 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 attorneys fees and costs of maintaining this action.

COUNT II

VIOLATION OF INDIANA CIVIL RIGHTS LAW

In. Code §22-9-1 et seq.

19. Plaintiff restates the allegations of ¶¶1-18 as if fully rewritten here.

20. WYNDHAM GARDEN WARSAW AND BENNIGAN’S GRILL AND TAVERN, and the 

businesses therein, are "place[s] of public accommodation" pursuant to In. Code §22-9-1-

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 8 of 10
3(m).

21. Defendant committed an unlawful act pursuant to In. Code §22-9-1-2(a) by denying Plaintiff 

equal access to and use of public accommodations.

22. The Plaintiff notified the Defendant of his complaints regarding handicap access in 

person and in a “comment card”. The Defendant has not replied to this correspondence. 

23. Pursuant to In. Code §22-9-1-6, 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 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 access to and use 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

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, and attorneys 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 access to and use of the

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

JURY DEMAND

Plaintiff demands a jury trial on liability and damages for Count II.

Respectfully Submitted,

Counsel for Plaintiff:

\s\ Owen B Dunn Jr -- dated: July 25, 2014

Owen B. Dunn, Jr., Esq. OH Bar Number 0074743

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 9 of 10
Law Office of Owen B. 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

USDC IN/ND case 3:14-cv-01752-RL-CAN document 1 filed 07/25/14 page 10 of 10