UNLIMITED MOTIONS

Miami Herald
Published Monday, November 19, 2001

With some half-dozen local groups suing building owners, Florida leads the nation in the number of ADA-compliance cases. But that doesn't mean these groups always agree, or even like each other.

BY DOUGLAS HANKS III
DHANKS@HERALD.COM

Sixteen months after Davie's Tri-County shopping plaza settled a lawsuit over handicap accessibility with the Alliance for ADA Compliance, Access Now stepped in with a lawsuit of its own.

In December Access Now, a Miami-based group led by South Beach resident Edward Resnick, charged that the shopping center on University Drive had not implemented its settlement with the Alliance, which called for changes to the parking lot. Furthermore, it said there were 16 other accessibility violations there that the other group hadn't mentioned.

Resnick was not pleased with the landlords, nor with the Alliance for ADA Compliance, which, like Access Now and a multitude of other local organizations, sues landlords whose buildings don't conform to the Americans with Disabilities Act.

"We call them drive-by lawyers," says Resnick of attorneys who file what he considers to be cursory ADA complaints. "They kind of send someone who will drive by, get out of the car and just take pictures of the parking lots and the fronts, and file their lawsuits ... They never go into the facility. They're doing a surface job."

From his South Beach condominium, Resnick wages a relentless legal campaign to force businesses into accommodating disabled people like himself.

As president of Access Now, the 75-year-old polio victim has participated in more than 300 lawsuits in South Florida courts -- litigation demanding wheelchair ramps, wider bathroom stalls and other accommodations required by the 1990 Americans with Disabilities Act. Defendants include the University of Miami, Burdines, Pro Player Stadium, KFC, Wal-Mart, Carnival, South Miami Hospital, Outback Steakhouse and Wal-Mart.

There are more than a dozen South Florida groups like Access Now taking businesses to court over alleged ADA violations, easily making this region a national leader in accessibility litigation.

And Resnick doesn't appreciate the company.

The retired real estate lawyer maintains that Access Now is practically alone in filing sincere ADA suits -- those designed to improve accessibility rather than fatten plaintiff attorneys' pockets. Plaintiffs in ADA cases can't get money from the defendants, they can only force them to make changes to their facilities so they comply with ADA and are accessible to the disabled. However, defendants usually are on the hook for the plaintiff's attorney fees.

Resnick and his lawyers say the rival groups are giving Access Now a bad name, and are making it harder to negotiate meaningful compromises with corporate defendants who are poised for a shakedown. He has resurrected about a dozen complaints already settled by rival groups in order to win his own concessions.

"There are some lawyers and some groups that are connected to the lawyers who really do a terrible job," Resnick said. "It's really all about money and greed."

Not that Resnick has been free from criticism. Some, including government ADA lawyers, have questioned his tenacity in pursuing class-action settlements. Facility owners have complained that Access Now's willingness to sue buildings that already have settled other ADA suits is creating a spiraling cycle of uncertainty. And some of his fellow ADA advocates question whether Resnick is too much of a stickler.

"He'll go the adversarial route," said John Garon, a Plantation resident and president of the Alliance for ADA Compliance. "You can't always do that because it will put both parties in the courtroom."

Carol Lumpkin, a Miami lawyer who has defended businesses in ADA suits, questioned how companies can feel secure in their settlements if another group is free to negotiate its own deal a year or two later.

"I don't know you'll ever comply," Lumpkin said. "Because you can't please everyone."

Meanwhile, other ADA groups make no apologies for the way they are going about their business. John Mallah, Florida's leading ADA attorney with almost 800 suits behind him, represented the Alliance in the Tri-County shopping center case. He said not all disabled people are as exacting as Resnick by insisting on sweeping changes rather than just the few changes that would help their access to a facility. His clients often are seeking a few alterations, Mallah said, and he pursues them.

"It's not my job to go in and [fix] every technical violation," Mallah said. "If my client is happy getting that one ramp fixed, that's what I do."

Mallah said he does check back with businesses to make sure the settlement is being implemented, and regularly requests court orders to force compliance.

Tri-County lawyer David Reimer says otherwise. He said the center tried for a year to get Mallah to approve its plan for parking-lot alterations, but that Mallah never responded. In fact, he says, the only follow-up to the shopping center settlement came when Tri-County was a week late in paying the Alliance's $5,000 in litigation fees, prompting Mallah to complain to the judge. "The only point of contention in any negotiation for [an ADA] settlement is always the money" for the plaintiff's lawyer and ADA consultant, said Reimer. "The access issues are always the easiest part."

Resnick is one of the more influential players in South Florida's circle of ADA plaintiffs, a controversial and fractured patchwork of non-profits with similar sounding names. As a group, they have filed more than 1,700 accessibility suits in five years. That tally ranks far ahead of the country's other federal court districts, and has attracted scrutiny and criticism that South Florida has produced a cottage industry of ADA litigation.

Resnick echoes that criticism, though he too has been touched by it. In an unprecedented move this summer, the Justice Department blocked two Access Now settlements with Carnival cruise ships and May department stores, saying the deals were too generous to the companies.

In making its case, the government noted Access Now's large number of settlements -- 235 -- and questioned whether the group was too quick to deal, rather than fight corporate defendants for more concessions.

The objections put Resnick on unfamiliar ground. He was defending his group for lacking ambition, rather than lodging that charge against others.

STRUCK BY POLIO

Resnick was a healthy 28-year-old in 1954 when doctors told him he had polio, a disease that quickly crippled him. He has used a wheelchair since, and his condition has worsened with age. His movement is limited to the maneuverability of his electric wheelchair, which Resnick steers with sometimes trembling hands.

Until he retired in 1988, Resnick represented lenders in construction deals in South Florida -- buildings that usually could not accommodate disable people like himself.

But just as his condition did not cripple him professionally, Resnick says he has tried to live a full social life. He and his wife of 51 years, Phyllis, are movie buffs (their daughter, a screenwriter, penned the film 9 to 5) and endured theaters without wheelchair seating to see the latest Hollywood offering. Years ago, ushers would force them to leave for creating a fire hazard by blocking the aisles. Dining out wasn't easy, either.

"I have entered more restaurants via the kitchen than any person in the world," Resnick joked. Kitchens often have the wider doors and ramps that are designed for food deliveries, but also allow Resnick to bypass the steps, narrow entrances and sharp corners that greeted him at most dining rooms.

MOVED TO BEACH

He and Phyllis moved to South Beach in 1988 from their longtime home in farther up Miami Beach. They watched with a mix of excitement and despair Ocean Drive's climb to glamour, with new restaurants and hotels offering five-star menus and trendy trappings.

Resnick only enjoyed the new dining scene after arranging for people to cradle him in their arms and carry him over the steps that led to most of the refurbished historic buildings.

"Here he was in his hometown," unable to enjoy its renaissance, Phyllis Resnick said. "It was hurtful. It was painful."

After the ADA was passed in 1990, Resnick began approaching South Beach restaurants and hotels to introduce management to the new law.

He recalls the reactions as mixed. Some owners readily agreed to add ramps and widen bathrooms. Others promised to, but never followed through. Many claimed the changes would bankrupt them, and refused.

The fights that followed led to Resnick serving on city and county disability commissions. He became the first president of the Association of Disabled Americans, a local group founded in 1995. The organization took on school systems, governments and businesses with some of South Florida's first ADA suits.

Two years later Resnick broke with the association. He said he was frustrated that the organization's legal team wouldn't compromise with defendants, dragging out court fights.

NOT FLEXIBLE

"I felt they were not flexible enough, not business-like," Resnick said.
"They were not doing the negotiating and the settling."

Resnick's successor at the Association of Disabled Americans, 32-year-old Daniel Ruiz, said Resnick was too accommodating with businesses, "settling things over lunch" and allowing years for defendants to complete renovations that should have taken months.

That was all before South Florida's current crush of ADA suits, which rose from less than 100 in 1997 to more than 600 last year, according to a report by the National Law Journal. In the first half of 2001, South Florida's numbers easily outpaced those of much larger metropolitan areas, including New York and Chicago, and doubled that of the second highest tally, California's Southern District.

MIDDLE GROUND

Resnick says Access Now occupies the middle ground of ADA litigation. He says he insists on significant accommodations from defendants because Access Now wants more than just attorney fees, but it is looking for a quick compromise, too.

"Corporate America, I think, loves me. If someone has to sue them, they're happy it's me," Resnick said. "We're not angry, mad or taking advantage of them. You come up with any reasonable offer to us, we're going to settle it."

But Access Now's most recent attempt to revisit a past ADA complaint met a rare courtroom defeat.

Resnick sued Pro Player Stadium last summer over his experiences at Dolphins and Marlins games. He complained of a lack of handicapped seating and parking, and a cramped disabled section inside the stadium.

A judge dismissed the complaint, ruling Pro Player had already done enough to satisfy ADA requirements for facilities built before the law was enacted. Pro Player's accessibility renovations were spurred by an earlier ADA complaint by Resnick advisor Fred Shotz.

The stadium had hired Shotz, a professional ADA consultant, to advise on renovations after he and others threatened the stadium with an ADA lawsuit in 1994, Pro Player said in court documents. The stadium would eventually claim $19 million in ADA-related renovations.

After he left Pro Player, Shotz asked a judge to cancel a 1997 U2 concert there over ADA violations, but the judge declined. Shotz later signed on with Access Now's suit against Pro Player.

"SORT OF FEISTY"

"I'm sort of feisty in my belief that access has to be above everything else," Shotz said.

The stadium decision not withstanding, Resnick and Shotz have reviewed or are reviewing about a dozen settlements made by other ADA-compliance groups. Resnick describes the agreements as either too weak to make a place more accessible, or ones defendants simply ignored.

It's not meant to punish facility owners, Resnick says. An Access Now member usually forwards a complaint about a particular business, and then an Access Now lawyer discovers a previous case there.

"We just go back in and sue."

Copyright 2001 Miami Herald

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