Sincerely,

811

January 7, 2000

The Honorable Mark Foley
U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman Foley:

This is in response to your letter to the Attorney General. Your letter requests an inquiry by the Department regarding lawsuits alleging violations of the Americans with Disabilities Act ("ADA") filed against businesses located in Palm Beach, Florida. You attached several recent clippings from the Palm Beach newspaper citing examples of lawsuits filed by private attorneys in federal district court to enforce the ADA. As you have noted, the lawsuits were apparently filed by two lawyers on behalf of an organization called Citizens Concerned about Disability Access.

We have carefully reviewed the information provided in your letter and I have decided to refer the matter to the State Bar of Florida for their review. The Attorney General is authorized to enforce title III of the ADA, which applies to public accommodations; she is authorized to investigate alleged violations, undertake compliance reviews of covered entities, and file civil actions in federal court for equitable relief or damages in order to make facilities readily accessible to persons with disabilities. Likewise, private persons are also authorized to file civil actions pursuant to title III against covered entities for injunctive relief to correct the ADA violations; however, only the Attorney General may seek damages under title III. Entities covered by title III include, for example, places of lodging, establishments serving food and drink, places of entertainment, places of public gathering, sales and service establishments, transportation stations, places of public display or recreation, places of education or social services, or places of recreation.

Notwithstanding her authority to enforce the ADA, the law does not give the Attorney General authority to investigate or prosecute plaintiffs or attorneys for filing enforcement actions to remedy title III violations by public accommodations.

Therefore, the Department lacks jurisdiction to investigate or pursue claims of alleged frivolous or harassing litigation by private attorneys who file enforcement actions. Responsibility for investigating such claims lies with the State Bar of Florida or with the judiciary system in which the litigation is pending.

The Department takes very seriously the duty of all lawyers to comply with applicable court rules and codes of professional responsibility. The Federal Rules of Civil Procedure prohibit any attorney from filing a civil action in any United States court that is intended "[f]or any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." See Rule 11, Federal Rules of Civil Procedure. Likewise, local rules of procedure and State canons of professional ethics also require attorneys not to abuse the process of the courts and to maintain professional standards of conduct at all times. Accordingly, I will forward this matter to the State Bar of Florida to advise them of the information provided in your letter. In this case, it is that body which has the authority to review the facts and investigate any potential violations of the standards of professional conduct for attorneys practicing in Florida. I am enclosing herewith a copy of my letter referring this matter to the Florida State Bar.

I hope this information is helpful. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Robert Raben
Assistant Attorney General

Enclosure

cc: Board of Governors

The Florida Bar