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U.S. District Judge K. Michael Moore in Miami has knocked out of the park a federal lawsuit by a litigious Miami Beach quadriplegic and his nonprofit group, Access Now. The suit, filed last year, claimed that Miami’s Pro Player Stadium discriminates against the disabled. “Plaintiffs seek [seating] modifications that defendants have no obligation to make, and which have no basis in law,” Moore wrote in a 19-page summary judgment order dismissing the case. Last month’s ruling is a big victory for H. Wayne Huizenga’s South Florida Stadium Corp., and co-defendants, the Miami Dolphins and the Florida Marlins. Stanley H. Wakshlag, a partner in the Miami office of Akerman Senterfitt who represented the defendants, says Moore’s ruling also reflects a backlash among federal judges in the face of a flood of ADA lawsuits. In addition, the ruling could be good news for South Florida football fans and local economic boosters who look forward to future Super Bowl games at Pro Player. “Defendants’ witnesses testified that making the requested seating changes would reduce the total number of seats below 70,000, rendering it ineligible to host Super Bowl games,” the judge wrote. Pro Player, when configured for Miami Dolphins football, has about 75,000 seats. Of those, 190 are wheelchair accessible. When configured for Florida Marlins baseball, with about 40,000 seats, there are 171 such seats. Stephen M. Cody, a Miami attorney who represents Access Now and its 71-year-old president, Edward Resnick, says the plaintiffs likely will appeal the ruling. “The court accepted the argument of the stadium that there were no architectural barriers [to the disabled] because Mr. Resnick could get from the entrance to his seat,” says Cody, a solo practitioner. “But that’s not all the Americans with Disabilities Act requires.” Cody, who initially sought to enjoin the Dolphins and Marlins from playing at Pro Player until the stadium’s alleged deficiencies were corrected, is one of about 10 lawyers and law firms representing Resnick and Access Now in approximately 600 ADA suits filed against businesses large and small in South Florida. Resnick, an attorney who has been confined to a wheelchair since contracting polio in 1954, did not return a phone message seeking comment. Over the last four years, a handful of activist groups have brought thousands of ADA lawsuits, assembly-line style, against businesses for alleged discrimination in public accommodations. Supporters say the litigation, most of which is settled before trial, is a necessary strategy to enforce social change. Critics contend the lawsuits are often little more than pretexts for plaintiffs’ lawyers to shake fat legal fees out of companies with little or no real liability. Wakshlag says Moore’s ruling shows that such lawsuits face increasingly hard slogging. “The courts are increasingly recognizing their role as gatekeepers, as in this case, and keeping the ones that have no merit from going to trial at great expense,” he says. “It’s unfortunate that most defendants who’ve been subjected to these suits don’t have the wherewithal to fight them, and they wind up settling.” Cody agrees that “most” of the cases that Access Now has filed have been settled out of court. In the Pro Player complaint, Access Now alleged a number of violations at the stadium, including failure to provide unobstructed lines of sight for wheelchair seating, failure to provide the proper parking facilities and accessible wheelchair locations, and violations relating to the picnic area, food service and restrooms. In response, attorneys for the defendants say the owners “have spent over $19 million on ADA improvements to the stadium, some of which it was not even required to undertake … Indeed, the stadium is a model of accessibility for a pre-ADA facility.” The ADA was enacted in 1990. The stadium features accessible seating at each of the five stadium levels, in 30 locations in 12 different price categories, court papers say. In addition, there are four wheelchair-accessible entrances around the stadium, designated drop-off points, 262 accessible parking spaces, accessible water fountains, toilets, smoking areas, telephones, gift shops and food and beverage outlets. The stadium even employs a full-time ADA coordinator to deal with patrons’ problems as they arise, the court papers note. Beyond that, lawyers for the stadium argue that current accessible seats are underused. “During Marlins’ baseball games, the odds are 2,500 to 1 that 95 or more of the … available wheelchair locations will be occupied. Similarly, during Dolphins football games, the odds are 3,000 to 1 that all the wheelchair locations will be occupied,” says one pleading filed by the defense. Access Now offered no evidence that the number of wheelchair seats at the stadium was not reasonable, so the argument that accessible seating at the stadium is “underutilized, therefore, remains undisputed,” the judge wrote. The judge took pointed note of the fact that Resnick, while claiming to have been subjected to a wide variety of disability discrimination, acknowledged he hadn’t personally experienced most of that alleged discrimination. Nor, says Moore’s order, did Resnick make any effort “to learn about the stadium’s accessibility features prior to filing suit. “The court cannot ignore plaintiff’s admission that he lacked knowledge of these purported violations at the time the complaint was filed, nor will the court ‘piece together support for’ his claims,” Moore wrote. Likewise, the judge took issue with the contentions of Access Now and its experts that additional wheelchair seating could be added at Pro Player Stadium “without much difficulty or expense … plaintiffs have proffered only ‘speculative concepts’ … rather than evidence that a specific design was readily achievable,” says Moore’s order. Meanwhile, Access Now and its attorney may soon find the tables turning regarding litigation costs. Wakshlag, who represents the stadium, says he wants Access Now to pay the defense costs, the amount of which he couldn’t yet say. That’s what Access Now hoped to force its opponents to do, if it prevailed.

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