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In a little more than three years, John D. Mallah has made himself public enemy No. 1 for small-business owners in South Florida. Since 1998, the 46-year-old Miami lawyer and his partners have sued at least 740 businesses — car dealerships, fast food franchises, drug stores, run-down motels — claiming that they had failed to make their facilities accessible to the disabled, as required under the Americans With Disabilities Act (ADA). Mallah has filed more ADA access suits than any lawyer in Florida, according to an analysis of court records in a commercial database. That’s no small achievement considering that nowhere are more businesses sued for such violations than in South Florida. “They’re not going to become accessible until they’re forced to do it,” Mallah says of the businesses. Mallah, who works in a suburban law office northwest of downtown Miami, is one of a handful of lawyers who have made millions from suing small businesses under the ADA. They have turned Florida, California and Hawaii into ADA battlegrounds, while other states report only relatively few cases. The situation has contributed to a backlash in Congress and in the public against methods that their critics call legal extortion. “What we have seen in so many of the cases are lawsuits that do not have real plaintiffs — do not have a real person discriminated against,” says Elizabeth Nicolson, legislative director for U.S. Representative Mark Foley, a Palm Beach Republican who has sponsored a law that he hopes will make it hard for Mallah and others to sue. Foley’s bill, introduced in March, requires that plaintiffs give businesses 90 days to fix any alleged ADA violations before filing a suit. A similar bill, sponsored by Senator Daniel K. Inouye, D-Hawaii, is pending in the Senate. Foley’s bill failed last year, despite the high-profile support of actor Clint Eastwood, whose Carmel, Calif., hotel had been sued for alleged ADA violations. SUPREME COURT RULING The U.S. Supreme Court may have beaten Foley to the punch in delivering a blow to the ADA bar, although Mallah says that’s not the case. On May 29, the court decided, 5-4, that plaintiffs’ lawyers are not eligible to claim fees under the ADA and other federal laws that provide for attorney fees unless the case ends in a judgment or a court-sanctioned settlement. If a defendant voluntarily makes the changes demanded by the plaintiff, the plaintiff’s lawyer is out of luck — even if it is clear that the lawsuit forced the change. Buckhannon Board and Care Home v. W.Va. Dep’t of Health and Human Resources, 121 S. Ct. 1835. Public interest lawyers say the decision allows defendants to litigate losing cases as long as they like, then avoid paying legal fees by unilaterally giving in to the plaintiffs’ demands. In access cases, businesses could simply make the requested changes, mooting the case and leaving the plaintiffs’ lawyer empty-handed. In the immediate aftermath of the Buckhannon decision, some plaintiffs’ lawyers offered to settle their cases at a discount, says Joseph R. Fields Jr., a West Palm Beach lawyer who represents defendants in ADA cases. Mallah says he doesn’t think it will have much effect. Most of the time, he says, his ADA cases will be resolved in court before the defendants get around to making necessary changes. And although the number of ADA access filings nationwide dropped by almost a third in the month after the Buckhannon decision, Mallah and other lawyers have continued to file ADA cases. Signed into law in 1990 by George H.W. Bush, the Americans With Disabilities Act outlaws discrimination in the areas of employment, state and local government programs and public accommodations. Under the public-accommodations section, Title III, new construction and renovations must be free of architectural barriers that block access for the disabled. Buildings that predate the ADA must make renovations that are “readily achievable” — i.e., able to be done without too much effort or expense. The Justice Department enforces the ADA, but the government concentrates on access suits likely to have broad impact. Policing small businesses has been mostly left to private suits. The first few years saw relatively few private Title III claims. That changed in the late 1990s, when a few lawyers started filing cases by the basketful. ADA lawyers and advocates say that many of the criticisms of Mallah and other lawyers are misplaced, arguing that businesses have had a decade to comply with the law. COMPUTING CASES Reliable numbers are hard to come by because the federal courts themselves don’t track ADA cases. A count using the private Casestream database shows that ADA lawsuits filed in the Southern District of Florida, excluding employment cases, have increased more than eightfold since 1997, to 434 in the first half of 2001. South Florida has more than 12 times the cases filed than Chicago federal court and more than 24 times the number in Manhattan or Philadelphia federal courts. Part of the reason for the large number of cases in Florida, California and Hawaii is their politically active disabled communities. But the bulk of the ADA docket can be traced to lawyers like Mallah who regularly file lots of cases. About 500 of the access suits that Mallah and his partners have filed in recent years were brought on behalf of two plaintiffs: a Florida nonprofit organization called Advocates for the Disabled and Ernst Rosenkrantz, a disabled World War II veteran. Rosenkrantz is Mallah’s uncle and is also the president of Advocates for the Disabled. Rosenkrantz’s wife and son are the group’s other officers of record, according to the Florida secretary of state’s office. In some cases, Mallah’s firm hired Rosenkrantz’s son as an ADA consultant. According to Mallah, most of his access cases yield $3,000 to $5,000 in fees. At $3,000 apiece, 500 cases works out to $1.5 million, although Mallah says the figure is substantially less. At least a dozen other Florida nonprofits regularly sue for ADA violations. Often these groups are established by the plaintiffs’ lawyers, who represent the groups exclusively in ADA litigation. Foley reportedly learned of the ADA suits in his district from news reports about a lawyer whose client, the disabled 12-year-old daughter of a neighbor, began showing up as a plaintiff in dozens of cases, including complaints against a liquor store and a pawn shop. “The ADA was not intended as an excuse to file a lawsuit so you can scoop up attorney’s fees,” Foley’s aide, Nicolson, says. Mallah says his uncle and Advocates for the Disabled provide a benefit to society. He says the relationship with his uncle developed out of an access case Mallah handled for him as a favor and that this led to the two of them suing other businesses. “Most people don’t want to be part of the process,” says Mallah. “They’re scared to death of the courthouse. They have a complaint, but they don’t want to be a plaintiff.” Advocates for the Disabled represents their interests, he says. When asked why his uncle agreed to be the plaintiff in so many cases without compensation, Mallah answers with a question: “What was in it for the people who sat in the Woolworths?” One plaintiffs’ lawyer acknowledged that finding plaintiffs for ADA cases is often a problem. While the ADA allows for attorneys’ fees, it doesn’t provide any money damages to the plaintiffs, limiting the incentive of disabled people to sue. Fields, who brought ADA cases for plaintiffs before turning to the defense side, says he was once approached by a disabled man who offered to drum up cases in exchange for a share of the fees. Fields says he rejected the offer. NONCOMPLIANCE EVERYWHERE From one perspective, it’s a wonder that even more ADA lawsuits aren’t filed. According to lawyers on both sides of the issue, noncompliant businesses — lacking anything from handicapped parking and bathrooms to access ramps — can be found everywhere. Attorney fees typically have no relation to whether the defendant actually carries out promised renovations. Mallah, however, says he always follows up to determine whether the defendants are living up to their settlement agreements. He estimates that about half don’t make promised repairs in time. Jay S. Blumenkopf, a partner in the Boca Raton office of New York’s Proskauer Rose who represents ADA defendants, says he counsels defendants to settle access cases quickly to avoid running up defense and plaintiffs’ lawyers’ fees that the clients will most likely have to pay. “Generally, the advice is a business decision,” he says. “We want to get them out in the most economical way we can.” Most defendants take the advice, agreeing to make the changes and pay attorney fees rather than racking up even bigger bills with lots of motions. Meanwhile, while most observers think Foley’s notification bill has little chance of becoming law this year, particularly with the Senate in Democratic hands, Nicolson, Foley’s aide, thinks Buckhannon may breathe new life into the bill, particularly if Congress considers reversing the decision legislatively.

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