Published May 6, 2004 in issue 0318 of

The Hook

By COURTENEY STUART

Though the drought ended with a splash in 2003, the wettest year on record, Express Car Wash owner Henry Weinschenk is still dealing with the dregs of the dry spell.

His Rutherford Institute-backed lawsuit against the city took a hit in early April when a federal magistrate recommended the suit be dismissed.

But it's not a done deal just yet.

On April 7, Weinschenk's lawyer, Frazier Solsberry, filed an objection to the magistrate's recommendation, reiterating his client's argument: By closing only car washes, the city violated Weinschenk's constitutional rights.

On April 19, city attorney Richard Milnor filed a response. In addition to making Constitutional arguments, Milnor went a step further, responding to Weinschenk's claim in a local paper that it "became the chic thing not to wash your car."

Milnor wrote, "Defendants submit that not only was it a chic thing to not wash your car, but that change in behavior is evidence of the rational basis for the city's classification, one of the reasons of which was to encourage the conservation of water."

Federal judge J. Harry Michael will decide in the near future whether the case has merit. (And perhaps, whether dirty cars really are chic

"We think the magistrate got it wrong," says Solsberry, appointed to represent Weinschenk by the Rutherford Institute. The city, says Solsberry, unfairly singled out car washes when other water-guzzling ventures-- such as the Wood Grill just down the road from Express-- were allowed to continue operating with less draconian restrictions.

"Patently unfair and un-American," is how Weinschenk described the city's decision at the time. He claims that during the six-week shutdown in fall 2002, he lost $60,000, despite implementing a "dry wash" system that used no city water.

The suit-- 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-- addresses two main issues. The first concerns the equal protection guaranteed citizens under the U.S. Constitution's 14th Amendment. That, says Solsberry, prevents the government from classifying people, businesses, or entities in a certain way.

"Was there a rational basis," asks Solsberry, "for the city to create a class of commercial car washes?"

The suit's second claim is that shutting down car washes during the drought constitutes illegal "taking" of property, because it deprived Weinshenk of his livelihood.

"The government can't take property without due process of law," says Solsberry, citing the Fifth Amendment. "If they do, they have to pay you for it."

Institute head John Whitehead says he believes "the facts are simple, and the Constitutional issues are rather straightforward."

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

Milnor did not return calls by press time. But according to his filing for the city, the closing of car washes was a "temporary" taking, which did not prevent Weinschenk from operating his business.

And as for the equal protection claim, Milnor writes that because all car washes were treated the same, and because owners of athletic fields were also prevented from using city water, there's no Constitutional issue.

Furthermore, the city has argued that the case should never have been filed in federal court, but rather should have been pursued in a state court.

"We researched that position," says Solsberry. "We believe that the state court proceedings are not available to us."

Weinshenk says he's "glad the original problem is behind me" and at this point much of his anger about the situation has dissipated.

"Curiousity is the biggest element here," he says of the judge's upcoming decision. "The political system failed me. Now I get to see if the legal system will do me some good."

Weinschenk's car wash case is still afloat.
PHOTO BY JEN FARIELLO

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