More MS news articles for Aug 2001

Disability lawsuits coming under scrutiny

http://www.sun-sentinel.com/news/local/broward/search/sfl-cadaaug26.story

Posted August 26 2001
By Shannon O'Boye,
Sally Kestin and Bob LaMendola Staff WriterS

In little more than a year, one man in a wheelchair and his two attorneys have filed almost 200 federal lawsuits against businesses from Pompano Beach to Homestead, alleging violations of the Americans With Disabilities Act.

They've sued strip clubs, office buildings, restaurants and car dealers, generally using identical wording to accuse business owners of failing to make parking, restrooms and entrances accessible to the disabled. The attorneys have collected thousands of dollars in legal fees.
 
But many of the business owners say Carlisle Wilson and his lawyers, William Tucker and Lawrence McGuinness, are more interested in generating legal fees than improving access for the disabled.

"I think it's a rip-off," said Peter Kourkoumeils, owner of Peter Pan Diner in Oakland Park. "All they want [people] to do is settle."

To settle a suit by Wilson, Kourkoumeils said he spent about $500 on minor changes at his diner, such as adding two blue disabled signs and moving a toilet one-half inch. He paid Wilson's attorneys $3,500.

"The law was put into place to make buildings accessible to the disabled, not to raise attorneys' fees," said U.S. Rep. E. Clay Shaw, R-Fort Lauderdale, who is co-sponsoring a bill to require notice of violations before a lawsuit can be filed. "Congress didn't intend this to be a welfare bill for attorneys."

A flood of lawsuits driven by legal fees has been filed in Florida and a handful of other states, Shaw said. Wilson's group is among a dozen that have sued about 1,800 businesses in South Florida in the past five years.

As a quadriplegic, Wilson said his goal is to enforce a law that has been on the books since 1990.

"These crybabies, they've had 11 years," said Wilson, of Fort Lauderdale. "Anyone who's crying that they have to put a wheelchair ramp in or have to put an [accessible] bathroom in a restaurant, tough. I have the law on my side."

But Wilson hasn't used the law to compel his own lawyers to make their offices accessible. Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness' office in Coral Gables has a curb with no ramp to the front door.

Tucker, 41, declined to comment, and McGuinness, 39, could not be reached despite five calls and a visit to his office.

The Sun-Sentinel visited 25 businesses, about one-quarter of those that have settled suits by Wilson. Most had to make minor changes, such as lowering a bathroom mirror by four inches and replacing doorknobs with levers. Two made no changes at all, and one made major modifications. Most created or improved parking for the disabled.

Although terms of many settlements were confidential, business owners said they each paid $1,000 to $9,500 to Wilson's attorneys.

"As long as they can find something wrong, even if they allege 10 things and there's only one, they technically prevail," said Rod Hannah, the lawyer for a Lauderdale Lakes strip mall that added one parking space to settle a suit by Wilson. "The only way to get out of it is to spend a little money and pay them some attorney's fees."

Freelance policing

Passed by Congress in 1990, the ADA is one of the most significant civil rights laws in decades.

The law requires buildings open to the public to have designated parking and no steps or curbs blocking the entrance. Bathrooms and aisles must be able to accommodate patrons in wheelchairs. Counters cannot be too high.

Although Congress did not create an enforcement arm, the U.S. Department of Justice is responsible for investigating complaints.

"We have no comment on the whole practice of excessive suits," said Dan Nelson of the Justice Department. "We are aware of it."

The federal agency can sue to force ADA compliance but has done so only 122 times since the law was enacted. As a result, disabled activists -- and their lawyers -- became the watchdogs.

"In effect, this is freelance police work," said Brewster Thackeray, spokesman for the National Organization on Disability advocacy group. "Places out of compliance are now being forced into compliance. It's a shame it would have to come to that, but with the law being in existence for 11 years, they've been getting a free ride.

"That doesn't mean there aren't people out there pursuing [suits] for personal gain."

John Williams, a columnist on disability issues for Business Week online, said too many businesses still are not accessible.

"But I think what these two lawyers and this guy are doing stinks," Williams said. "It's really an abuse of the legal system. This sounds to me like it's a shakedown, and that's wrong."

The law allows a disabled person who has been denied access to a public building because of ADA violations to file a federal lawsuit. Businesses must make "readily achievable" changes and can be forced to pay the disabled person's legal fees.

The lack of government oversight and the lure of legal fees have led to a rash of suits in California, Hawaii, Oregon and Florida.

In 1999, the Citizens Concerned About Disability Access filed dozens of suits, including 35 in one month, on behalf of a Pompano Beach girl, 12, in a wheelchair saying she could not get into a liquor store, a pawnshop and other businesses in Palm Beach and Broward counties.

The backlash against that batch of lawsuits and scores of others sparked U.S. Reps. Shaw and Mark Foley, R-West Palm Beach, to sponsor a bill giving businesses 90 days' notice before they can be sued. The bill died last year but will be considered again this year.

"This whole thing has precipitated a cottage industry for a niche group of lawyers," said Robert Frankel, a Miami lawyer who defended the owner of an office building sued by Wilson. "Leave it to a group of lawyers to figure out a way to make a buck."

Wheelchairs barred

A self-proclaimed "hippie at heart," Wilson broke his neck as a teenager in Ohio when he dove from a rooftop and hit the bottom of a pool. He lost use of his legs and partial use of his upper body. Ordinary tasks such as dialing a phone, signing his name and picking up a cup of coffee are difficult, but he wheels his own chair, drives, dresses and showers without assistance.

Wilson, 51, said he takes pride in forcing businesses to comply with the ADA law.

His first lawsuit came in 1998, after he said he was not allowed to go fishing with his son, 4, and three friends on the Flamingo, a deep-sea fishing boat at Bahia Mar in Fort Lauderdale.

Wilson said he was still in the parking lot, sliding from his car to his wheelchair, when a friend came back to say crew members told him wheelchairs were not allowed. He left feeling embarrassed and angry, and, on Oct. 5, 1998, he sued the company.

Defense attorney Tom Lardin disputed Wilson's account but could not remember the details. The case was settled in eight months, and the Flamingo now has a sign posted at the dock describing a policy that says no one will be denied access because of disability.

"There's not a man, boy, woman, or kid that will come to Fort Lauderdale and not be able to go fishing now," Wilson said. "Is that so bad?"

Wilson said he continued to see accessibility problems and shared his frustrations with Tucker, whom he met through his son. The lawyer offered to help.

In July 2000, Wilson founded a nonprofit corporation, Advocating Disability Rights Inc., whose primary purpose is to "seek enforcement and compliance of ... property with the ADA in areas where its members live and travel," the group's lawsuits say.

Wilson, his wife, Catherine, and Tucker's father-in-law, attorney George Moxon, are the corporation officers, state records show. The group has no other members, Wilson said.

He recently set up a Web site for the corporation, offering information on the ADA and asking for donations. IRS records show the group is not tax-exempt, and it is not registered with the state to solicit the public for money. A state spokesman said some educational and religious groups are exempt from registering, but he could not comment about whether groups that advocate disability rights were.

Wilson and Moxon did not produce public records and financial statements requested by the Sun-Sentinel. Wilson, who has worked as a bill collector and a people finder but is now doing volunteer work with the Miami Project to Cure Paralysis, said he gets no money from the lawsuits.

Lawsuit errors

July 3 was a busy day for Wilson and his attorneys. They filed 23 identical suits, all against Miami-Dade strip clubs. "If all the complaints are identical, these people aren't really concerned patrons who want to improve access to a building," said David McDonald, a lawyer for Stir Crazy, a strip club in Miami.In court papers, Wilson said he had visited all 197 businesses he sued and planned to return to each. But in an interview, he could not remember the specific violations at most of the places, including Zuckerello's Restaurant & Pizzeria in Fort Lauderdale.

Wilson sued the restaurant in September 2000 even though one of its former managers was in a wheelchair and said he never had problems getting around during the four years he worked there.

To settle the case, the owner agreed to make $200 in changes and pay Tucker and McGuinness $3,700.

Many of the businesses targeted are clustered along main roads, such as Federal Highway, Oakland Park Boulevard and Ponce de Leon Boulevard, which is blocks from McGuinness' law office in Coral Gables.

Some of the suits filed en masse contain errors. Office buildings have been accused of having service counters that are too high even though they had no service counters. Four businesses sued on Jan. 29 were referred to as "the Floridian," a downtown Fort Lauderdale restaurant, an indication that the lawyers failed to revise the form complaint. A few suits contained wrong addresses or the words "property address." And one building got sued twice on the same day under different names.

Central Bark, a pet-supply store in Oakland Park, was one of 13 businesses sued on Sept. 5. The suit said Wilson found ADA violations "when he visited the [store] on several occasions in 1999 and 2000." Central Bark did not open until March 2000.

Owner Chris Gaba said he had spent $6,000 on a wheelchair-accessible bathroom and thousands on doorway access before opening, but the suit claimed those areas were in violation.

Gaba said his lawyer and Tucker worked out a deal requiring Central Bark and the business next door to create a disabled parking space and to install a five-foot ramp. The work cost several hundred dollars, but Gaba had to pay Tucker $2,000 and his own lawyers and experts about $4,000.

"They really did me up good," Gaba said. "The whole thing was so disturbing. The problems were so minor, but the cost was so high."

Not every lawsuit sticks. Wilson's attorneys dropped at least 16 cases, usually because of errors, because there were no violations after all or by failing to follow up.

Last month, a judge threw out a case against the owner of three 1970s-era office buildings, ruling that Wilson failed to show he would return there, as is required to prove discrimination. Wilson said he planned to rent an office and see a doctor at the buildings, but when Magistrate Judge Barry Garber dismissed the case on July 24, he said Wilson never had a doctor's appointment and never asked about rent or availability.

Despite such rulings, defense attorneys usually counsel owners of small businesses to settle quickly.

"Do you want to spend $20,000 to have a trial and voice your displeasure that this case is being driven by attorneys fees" or pay much less to settle, asked Fort Lauderdale attorney Paul Ranis.

A few business owners, like John Day of Mangos Restaurant & Lounge on Las Olas Boulevard, are fighting Advocating Disability Rights. As a member of the Fort Lauderdale Downtown Rotary, Day has donated and raised money to buy wheelchairs for people in poor countries.

"I got almost a form letter, and you get the impression that if you pay $2,400 in attorneys fees, they drop the suit and go away," he said. "I said, `I'll pay $20,000 before I give you $10.' Someone has to stand up and say, `No. This is wrong.'"

Many business owners said they were unaware of the violations and would have fixed them if Wilson or someone had pointed them out.

Disabled advocates say that's bunk and defend their right to sue.

"Nobody comes into compliance without a push," said Ed Resnick, of Access Now Inc., a Miami Beach nonprofit that has sued eight cruise lines, Walt Disney World, Sea World and Universal Studios. "Nobody is doing it willingly."

South Florida's chief federal judge, William J. Zloch, said judges can initiate an investigation if they suspect a frivolous case was filed. Such suspicions could arise at trial, but many ADA suits are settled or dismissed before then and often without hearings before a judge.

"The court is aware of the number of cases filed" by plaintiffs like Wilson, Zloch said. "Any party that feels that a claim has been made that is totally without merit has a right to seek sanctions. I'm not aware of any defendant ever seeking to invoke that sanction in those types of cases."

Many business owners said that after they paid the settlement, neither Wilson nor his attorneys returned to do business or see whether the improvements were made.

"I'm not responsible," Wilson said. "They've signed, they have to comply. No one deputized me. I'm not the cop."

But after thinking about it for a few moments, he agreed that someone should check up on the businesses he has sued.

"I can't give you a good answer," he said when asked why he does not. "There are 20 to 30 places that I've been back to that I go to regularly where I can say, yeah, things have been taken care of."

Staff database specialist John Maines contributed to this report.

Shannon O'Boye can be reached at soboye@sun-sentinel.com or 954-356-4597.
 

Copyright © 2001, South Florida Sun-Sentinel