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Is it abuse or empowering?

WEST PALM BEACH — Don't let the wheelchair fool you. Allen Fox is a one-man demolition crew.

Just ask the nearly 140 targets of his wrath. With rare exception, they have been forced to spend thousands of dollars to rip out, tear down, rebuild or renovate their businesses after the 65-year-old suburban West Palm Beach man complained about barriers that made it difficult, if not impossible, for him to get inside.

"He's a maverick," says attorney Samuel Aurilio, who has been Fox's all-important sidekick in his crusade to get businesses to comply with the Americans With Disabilities Act.

Others who have sparred with Fox use far less generous terms to describe him.

"He's what we like to call a professional plaintiff," says attorney Joe Fields, who has represented many of the business owners and views Fox's activities as more of a shakedown than a humanitarian campaign.

After six years and 139 lawsuits, Fox isn't surprised — or dismayed — by such assertions.

"I have no problem being accused of being a professional whatever," says Fox, whose childhood polio returned to put him in a wheelchair about 10 years ago. "I do this because I don't want the disabled people who come after me to go through what I've had to go through."

He's far from alone. But while most of the thousands of other Americans With Disabilities Act lawsuits filed in federal court in the Southern District of Florida are on behalf of people associated with disabled advocacy groups, Fox flies solo.

"I don't like bureaucracy," he says with a shrug.

When he visits a car dealership, restaurant, gas station or shopping center that doesn't have enough handicapped parking spaces or grab bars in the bathrooms, where counters are too high, doors are too narrow or other obstacles to the disabled are found, he gives Aurilio a call.

An expert is called to verify his claims. In most cases a lawsuit is filed. Eight, with nearly identical claims, were filed on one recent day alone.

Such tactics have been controversial since shortly after President George H.W. Bush signed the landmark legislation on July 26, 1990.

Overnight, critics complained, a cottage industry was created for so-called drive-by lawsuits filed by disabled people who linked up with unscrupulous lawyers who knew they could cash in on the law, which requires the losing side to pay their attorney fees.

For people like Fox, filing the lawsuits pose little risk. Aurilio takes the cases on a contingency basis. If he loses, which is rare, Fox doesn't have to pay. If he wins, the business pays Aurilio's fees.

Lawsuits rarely go to trial. In pretrial settlements, business owners agree to renovate their stores and pay Aurilio's fees.

"It's a racket," says Miami attorney Mathew Weinstein, who has represented business owners in lawsuits filed by the Fox-Aurilio team.

Aurilio, who has filed 274 ADA cases in Florida, including Fox's, laments that a few lawyers have given all of those who fight for the disabled a bad name. The poster child is a North Miami lawyer who in 2003 was sanctioned by U.S. District Judge Donald Middlebrooks for filing 13 lawsuits on behalf of a man he claimed was a quadriplegic who later walked in to give his deposition in one of the cases.

In a blistering 18-page order sanctioning lawyer Lawrence , Millbrooks noted that filing ADA cases had been lucrative for Fuller. A review of settlement agreements in 95 of the 600 cases Fuller filed showed he pocketed about $5,100 per case. Multiplied by 600, that came to more than $3-million in less than five years.

Faced with an onslaught of ADA cases, other judges have sought to curb how much lawyers can make. A federal judge in Tampa, for instance, demands that he approve any settlement agreement involving attorney fees. Still others have publicly chided lawyers for filing suits instead of working with businesses to correct problems.

"Wouldn't conciliation and voluntary compliance be a more rational solution?" U.S. District Judge Gregory Presnell asked in a 2004 order dismissing an ADA lawsuit filed by a man who had brought nearly 200 similar actions. "Of course it would, but presuit settlements do not vest plaintiff's counsel with an entitlement to attorney's fees."

For years, Congress has flirted with changing the law. Former U.S. Rep. Mark Foley of Lake Worth long championed a measure to require businesses be alerted of violations and be given 90 days to correct them before a lawsuit could be filed.

A similar bill was filed last year by an Orlando congressman. Supported by business groups but opposed by the disabled and trial lawyers, it has gone nowhere.

Matthew Dietz, a Miami lawyer who represents the disabled, blames Congress for crafting the measure so that it has no enforcement mechanism and no penalty for violating it.

In California, business owners face a minimum $4,000 fine for violations; as a result, compliance is high. In Florida and elsewhere, the most disabled people can hope for is that business owners voluntarily make improvements, if they don't, a lawsuit is the only way to coerce them.

"As much as I hate these claims because of all the bad stuff that has come out and the way judges look at them, this is (an important way) for disabled people to get their basic needs satisfied," Dietz says.

And, Fox insists, his needs aren't that great. He just wants a door he can open. An aisle he can navigate. A counter he can reach.

"If you can go in there," he says, "I should be able to get in there."

Is it abuse or empowering? 05/11/08 [Last modified: Monday, May 12, 2008 2:10pm]

    

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