Weinschenk's revenge: Car wash files suit against City

More than nine months after being forced to close down in the water conservation campaign last summer, one car wash owner has pulled out the big guns.

On June 25, Henry Weinschenk, owner of Express Car Wash, backed by international civil rights organization The Rutherford Institute, filed suit in federal court against the City of Charlottesville, claiming that his Constitutional rights had been violated.

This is the second big local battle on behalf of a business this year for the Albemarle-based Institute, which shot to prominence in 1998 when it represented Paula Jones in her sexual harassment suit against then-President Bill Clinton.

In January, the Institute challenged the county's sign ordinance when it was used to stop an Arby's restaurant flag from flying on Route 29. The county agreed to drop the prosecution and review its ordinance.

In the current case, Weinschenk– despite implementing a "dry-wash" system that uses only purchased bottled water– estimates he lost $60,000 during the six-week water ban the city ordered last September.

Back then, Weinschenk said the possibility of a lawsuit against the city was slim. "It would bankrupt me," he insisted. Support from the Rutherford Institute was a welcome event for the beleaguered businessman who, ironically, has seen his livelihood suffer again this spring– this time from the almost-constant rainfall.

Whitehead says taking the case, which names as defendants Charlottesville City Council, City Manager Gary O'Connell, Public Utilities Manager J.G. Palmborg, and Director of Public Works Judith Mueller, wasn't a difficult decision.

"It's not a real complicated lawsuit," Whitehead says. "The facts are simple, and the Constitutional issues are rather straightforward. Government cannot take property without just compensation."

City Attorney Craig Brown declined comment, saying that the city had not had time to review the case thoroughly.

The real question in the car wash case, Whitehead says, is, "Can the government willy-nilly cause someone to go broke?"

Not under the tenets of the U.S. and Virginia Constitutions, Whitehead says. The basis for the suit is found in two Amendments to the U.S. Constitution. The Fifth says property cannot be taken without due process, while the 14th says no entity can be singled out for persecution.

Both Amendments were violated, the suit alleges, when the city forced car washes alone to close down. Both Whitehead and Weinschenk say car washes use less than one percent of the city's water supply– far less than is used by restaurants, hotels, and motels.

Even so, if the city had offered "just compensation," Whitehead claims, the suit would be without basis. That, however, was not the case.

At this point, Weinschenk is the sole plaintiff, but Whitehead says his organization is open to adding others.

The suit seeks compensatory damages of $60,000– the amount Weinschenk estimates he lost– plus attorneys' fees. Punitive damages, Whitehead says, could be awarded by the judge.

But for Weinschenk, the suit is about much more than money; it's about restoring his faith in America and making sure this doesn't happen to anyone else.

"Had you asked me two years ago, 'Could they do this, would they do this?'" Weinschenk says, "I would not have believed it."