Ex-Riviera official justifies his suits for disabled access

By JANE MUSGRAVE

The Palm Beach Post

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 kicked 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."

The former Riviera Beach city councilman is 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 poses 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 attorneys have given all of those who fight for the disabled a bad name. The poster child is a North Miami attorney 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.

Not only was the man not disabled, he "did not know what a quadriplegic was, and when the term was explained to him, he was repulsed by the thought of being so incapacitated," Middlebrooks wrote in a blistering 18-page order sanctioning attorney Lawrence Fuller.

He ordered Fuller to pay Speedway Superamerica the $43,323 it had spent defending two gas stations in Port St. Lucie and one in Palm Beach Gardens against his claims. He was also ordered to pay for a special master to spend a year in his office evaluating his practice. Fuller was admonished by The Florida Bar.

Middlebrooks noted that filing ADA cases had been lucrative for Fuller. After reviewing settlement agreements in 95 of the 600 cases Fuller filed, Middlebrooks said the attorney 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 filed by the same groups or individuals, other judges have sought to curb how much attorneys can make. A federal judge in Tampa, for instance, demands that he approve any settlement agreement that involves attorney fees.

Still other judges have publicly chided attorneys for filing lawsuits instead of working with business owners 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 pre-suit settlements do not vest plaintiff's counsel with an entitlement to attorney's fees."

For years, Congress has flirted with changing the law. Former Republican U.S. Rep. Mark Foley, a Lake Worth native who stepped down over sexually charged e-mails, 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 attorneys, it has gone nowhere.

Fox says he has tried to get business owners to make corrections voluntarily.

"I've said, 'It's very difficult to get around. Can you do something about it?'"' he says. "They don't care. I'm a minority. If they lose a customer, so what?"

Matthew Dietz, a Miami attorney who represents the disabled, says he has mixed feelings about the proposed notice requirement.

For small-business owners it might make sense, he says. They would have time to make what in most cases are relatively minor repairs and not face thousands of dollars in attorney fees.

Still, he says , the law has been on the books for 18 years. "How did they not get the memo?" he says.

He blames Congress for crafting a measure that has no enforcement mechanism and no penalty for violating it - an anomaly among civil rights laws. In California, business owners face a minimum $4,000 fine for violations; as a result, compliance is high.

In Florida and elsewhere, the most the disabled can hope for is that the problems will be corrected. Government agencies such as the Palm Beach County Office of Equal Opportunity can encourage but not force business owners to comply. While many business owners will 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."