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Big winners in disabled crusade? Lawyers

A clutch of lawyers from Miami have carved out a tidy niche for themselves, suing hotels, restaurants and businesses for not complying with the rules on access for the handicapped.

It sounds like a virtuous crusade on behalf of people who need protecting. But critics say it's a racket, that the improvements for the handicapped are often negligible _ while the lawyers rake in the bucks.

Sometimes there aren't enough handicapped parking spaces. More often, the lawsuits turn on things like handicapped parking signs that are too low or a wheelchair ramp that is degrees too steep.

Usually, a lawsuit is filed without ever offering the business a chance to correct a violation. The business almost always settles, the attorney pockets thousands in fees. Some consider it legal extortion.

It has worked in South Florida for about five years, and now it has spread to the Tampa Bay area.

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Ashokkumar Patel couldn't afford to hire a desk attendant, so he was minding the tiny lobby of his Economy Inn Hotel in Clearwater the day a server dumped a lawsuit on the counter.

A man from Miami whom Patel had never heard of was accusing him of violating the Americans with Disabilities Act. A 45-year-old Indian immigrant, Patel didn't know what the ADA was or what it had to do with him.

"It was in attorney language, and I couldn't understand," Patel said.

He turned to lawyer Robert Walker, who advised Patel to settle quickly. The alternative was a protracted legal fight against Miami lawyer John Mallah, whose bills would surely rocket, fees Patel would be responsible for if he lost the case.

And clearly, Patel would lose. He had not put handicapped signs in the parking lot or created a wheelchair-friendly room at his $40-a-night hotel.

Patel followed his lawyer's advice and settled. A confidentiality clause forbids Patel from disclosing how much he owes Mallah. But Walker said attorney fees for such cases normally run more than $5,000.

Patel and his wife work seven days a week. "This is my first business and something comes up like that " he said quietly, trailing off. He bought the hotel three years ago when he was working in a Chicago car factory. "Right now, with business going slow, I don't know, you know?"

He needs to come up with $1,500 to cover fixes the settlement calls for, including painting handicapped parking spaces and installing grab bars in one bathroom. He is paying Mallah's fees in monthly installments.

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Florida leads the nation in ADA lawsuits. In the past year alone, 1,027 such lawsuits were filed in the state, according to the Justice Department. (California was second, with 512.) That doesn't include those in which attorneys were paid their fees and withdrew the cases.

President George Bush signed the ADA into law in 1990. It mandated that new construction and renovations have no architectural barriers for the disabled. For buildings erected before the law, the ADA required only structural changes that were "readily achievable."

The Justice Department enforces the ADA, taking on big targets that have included the state of Delaware. For smaller businesses, the ADA leaves it to the handicapped to file lawsuits.

To encourage lawyers to take their cases, the ADA includes a requirement that the defendant foot the legal bills for both sides. Damage awards are generally barred; handicapped plaintiffs win nothing but access.

But how much access? Sometimes changes agreed to in a settlement don't materialize because enforcement is up to the plaintiff's attorney, said Andrew Imparato, president of the American Association of People with Disabilities, which looks out for the rights of 56-million disabled people nationwide.

Some lawyers are known for bringing in expensive ADA consultants, which burdens the businesses with more fees. The smallest portion of the settlement goes toward renovations, the largest portion by far goes to the attorneys.

"To the extent that they're filing lots of lawsuits over minor violations and forcing them to pay for a consultant and not even making sure the problems are being addressed, that's a problem," Imparato said.

"There's a cottage industry of consultants who are working with the lawyers, basically intimidating small businesses to make a lawsuit go away."

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Before he became known as the attorney who has logged more ADA lawsuits than anyone in Florida, John Mallah practiced mainly contract litigation dealing with property and labor disputes.

He credits his uncle Ernst Rosenkrantz, who has used a wheelchair 55 years because of polio, with awakening his sense of injustice over inaccessibility.

"I was close with him and we had traveled and we had suffered the indignities of noncompliance," Mallah said.

Five years ago, Mallah started suing fast food franchises, motels, strip malls, convenience stores and gas stations. "Most on travel corridors, on (Interstates) 95 and 75," he said.

Rosenkrantz, 74, said he is a retired architect. He lives in Miami and is often listed as the plaintiff on Mallah's lawsuits. Critics charge that Mallah lacks plaintiffs who have legitimately been harmed.

"This is just as low as you can go," said Clearwater lawyer Robert Walker, who represents the Patels and two other Tampa Bay area businesses Mallah has sued. "In the old days, they called it "churning.' It means generating lawsuits just for the business."

The lawsuits have the same "boilerplate language," Walker said. "It's a fishing expedition the same plaintiff, same attorneys, same complaint."

Rosenkrantz's memory is hazy about some of the local lawsuits that bear his name. What was wrong with the Best Western in Dunedin, which Rosenkrantz sued on Aug. 21? "It's hard for me to remember, really," he said.

And Patel's Economy Lodge in Clearwater? Rosenkrantz said he came upon the hotel during a visit to family in St. Petersburg. "I think I was traveling in the area. We made inquiries in there."

The ADA was supposed to be the golden fix for decades of discrimination, he said. "When they passed a law in 1990, I figured, "Hell, I'll be able to go to a movie and go to the toilet.' After six years I looked around and nothing was happening."

So Rosenkrantz enlisted the help of his nephew, and the lawsuits went flying because Mallah wouldn't notify a business that it was in noncompliance and give it a chance to correct a violation.

"Most businesses started yelling and screaming, "Why didn't you give us a warning? You just surprised us,' " Rosenkrantz said. "The ADA law has been in effect for 12 years. What kind of warning do these people want?"

Mallah, whose office is in Miami Lakes, said a case can bring him anywhere from no money to $50,000 or more.

He broke with his old law firm, Fuller, Mallah & Associates. Last year, the firm sued the Airport Industrial Park on Hillsborough Avenue in Tampa. The lawsuit said there weren't enough parking spaces for the handicapped, the signs were too low, the ramp was too steep and there weren't handrails from the ramp to the entrance. Counters were higher than 36 inches.

During a dispute about legal fees, U.S. District Judge James Moody Jr. noted that the number of cases Mallah and Fuller had filed was "eye catching."

Moody was so suspicious, he did research and found that from February through October, Mallah and those working with him filed 142 cases in the Middle District, which encompasses the Tampa Bay area. In the Southern District, the same lawyers had filed at least 740 ADA cases since 1998, Moody said, citing the National Law Journal.

Mallah said Moody is not the only west coast judge who has given him a hard time. "The Middle District seems to have been pretty hostile toward the disabled community," he said, "probably because of the volume of cases."

Mallah, 47, is being investigated by the Florida Bar, which won't say what prompted its scrutiny. Mallah said he wasn't aware the Bar was investigating but suspects it is politically motivated.

Meanwhile, lawsuits bearing Mallah's name keep arriving. "We're not suing everybody," Rosenkrantz said. "We don't have that capacity."

Others have stepped up to help. In the past few years, a dozen nonprofit organizations have sprung up, some solely for the purpose of becoming plaintiffs. The attorneys who file the lawsuits have helped the groups incorporate.

Mallah's previous partner, John Fuller, is the registered agent for Access 4 All and helped register Advocates for the Disabled and Access for the Disabled. Mallah helped incorporate Advocates for the Disabled.

Mallah said plaintiffs feel more comfortable filing lawsuits as a group.

U.S. Rep. Mark Foley, a Republican from Palm Beach, considers the rash of lawsuits a bane for Florida.

"It's a tragic situation," he said. "They've been moving their way up the coast, spreading like kudzu vines."

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The Best Western Yacht Harbor Inn in Dunedin has been promoting Room 126 to disabled visitors for seven years.

Against a wall is a table, sturdier and squatter than in other rooms. The full-length mirror is a few inches lower so people in wheelchairs can see their feet. The entrance to the bathroom was widened and a curtain replaced a door. Hand rails are bolted above the tub.

The hotel proprietors also own the upscale restaurant next door, Bon Appetit, where years ago they installed a top-end lift to carry patrons up several steps to a landing.

"It's our No. 1 choice," said James Gaffney, a visitor from Stevens, Pa., who uses a wheelchair and has stayed at the hotel twice, including a week this month.

Last month, Mallah sued the owners.

Gaffney was incredulous. The hotel was just fine for someone with his condition, he said. "What else can they do?"

Co-owner Karl Riedl said that if someone had a complaint, he should have spoken up.

"The person never, as far as we know, never stayed at our property, never identified himself and told us that there was a shortcoming. And, in fact, we absolutely had no shortcomings," he said.

"The only thing we can think of is when this person apparently was touring the property, we were in the process of repaving our parking lot so the handicapped spot and the blue stripes were still there but the sign was taken down."

Riedl hired lawyer Robert Walker.

"If there is a violation, we're contesting that the plaintiff was adversely affected," Walker said. "We are certainly not just simply going to fork over some money for fees."

The lawsuit is nearly identical to two others Mallah filed against Walker's clients. It says the parking lot is missing handicapped signs and there aren't enough rooms accessible to the disabled. It says the plaintiff needs to inspect the hotel "in order to determine the extent of existing barriers to access."

Said Walker, "It's a fishing expedition to try to find some little justification to maintain that lawsuit which has already been filed."

In Naples last year, Mallah sued another Best Western. His settlement offer demanded the hotel add signs for the disabled and install phones with loud volume for the hearing impaired. But Russ Rosen, the hotel's managing partner, said most of the items had been in place for years. He refused to sign the settlement.

"We restriped the handicapped parking spaces that in some cases were 6 inches too short and we put longer chains on outdoor showers," Rosen said. "I put a different ramp in the back door."

The cost: $1,000.

Mallah's bill: $35,000.

"Blackmail," Rosen calls it.

A federal judge, citing a U.S. Supreme Court case, ruled this month that because Rosen already has fixed the violations, Mallah is not entitled to attorney fees.

Rosen says his dealings with Mallah's firm have been unnecessarily protracted.

"You can't get them on the phone," Rosen said. "They can't run up the bill if it doesn't drag on."

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The Code of Federal Regulations is the bible of ADA compliance. The 200-page handbook details acceptable angles of ramps (maximum 1:12), shapes of grab-bars (round, 1\ to 1{ inches wide) and minimum width of aisles for structures built or renovated after the law was enacted (36 inches).

The disabled say it's a godsend; their needs are finally being addressed. To the business world, it's a major headache.

The requirement that toilets for the handicapped be 18 inches from the sidewall has put many businesses on the wrong side of the law, said Larry Schneider, an architect who does ADA consulting for defense attorneys and business owners who want a property vetted. Up to 70 percent of the older toilets Schneider inspects are not the required distance.

Most buildings can be had, Schneider said. "We can go to downtown Tampa and go down Kennedy Boulevard and hit every little store and strip shop and find violations everywhere."

To help businesses spend more money on compliance and less on attorney fees, Rep. Foley sponsored a bill last year that would require plaintiffs to give businesses 90 days to comply with the law before they filed a lawsuit.

"What we should all be working toward is accessibility, not finding ways for lawyers to line their pockets," Foley said. "At the end of 90 days, sue all you want."

The business lobby loved it; attorneys and disabled advocates fought it. It went nowhere.

"It's not going to accomplish anything but give the businesses wiggle room," said Ben Ritter of the Florida Gulf Coast chapter of Paralyzed Veterans of America.

The state of Florida has taken a step on its own. Since last year, every new business that registers with the Division of Corporations gets a letter warning that failure to comply with the ADA could result in "significant civil money penalties."

The issue of notification has become a wedge between lawyers who specialize in ADA litigation. Kip Roth, a disabled Tampa lawyer, says he tells plaintiffs who want to sue without warning to find another lawyer.

"If you file a thousand of these, you can make money," Roth said. "But I also like to sleep at night."

But Fuller said that until the federal government does a better job enforcing the law, attorneys need to step in. "Notification, it doesn't work," said Fuller, 48, who has an office in South Beach. "Personally, I think that the only effective method is litigation.

"If you look at Dade County and Broward County, there is substantial compliance because of advocacy groups."

Mallah, too, continues to sue businesses. And for all the right reasons, he said.

"Any person in the state of Florida with a disability that meets with a denial of access of public accommodation because of noncompliance with ADA, call my office," he said.

"I'll file every single one of them."

_ Times researcher John Martin contributed to this report. Kathryn Wexler can be reached at (813) 226-3383.