Monday, March 26, 2007
Court Gives Man Second Chance in ADA Suit Against Restaurant
Disabled Valley Resident Who Has Sued Hundreds of Public Accommodations Is Not a ‘Business,’ Panel Says
By TINA BAY, Staff Writer
A paraplegic who sues inaccessible public accommodations for a living is not a “business” but an “individual” entitled to recovery under state and federal disability laws, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court held U.S. District Judge Dickran M. Tevrizian abused his discretion in denying a new trial motion by San Fernando Valley resident Jarek Molski, after he lost a lawsuit against Cable’s Restaurant in Woodland Hills.
Molski, who has been wheelchair-bound since 1988 due to a motorcycle accident that rendered him a paraplegic, sued Cable’s alleging that its restrooms failed to accommodate the disabled in violation of the Americans with Disabilities Act and California’s Unruh Civil Rights Act. A law school graduate, Molski has brought similar suits against hundreds of other businesses throughout the state.
During a lunch visit to Cable’s on Jan. 26, 2003, Molski, who spent $35 for a meal with his grandmother, took note of numerous architectural barriers to handicap access in the restaurant’s public restroom while using the facilities.
He alleged, among other things, that the door pressure on the bathroom door was too heavy, that the stall doors could not close with his wheelchair inside the stall, and that he was prevented from maneuvering from the wheelchair to the toilet because the stalls lacked grab bars on the rear and side walls. He also alleged that the pipes beneath the sink were not insulated, which posed a special risk to those without feeling in their legs because those individuals could be burned by hot pipes without their realization.
Molski further claimed the toilet seat covers and at least one of the paper towel dispensers were beyond his reach, and that all of the hygienic violations were especially important to his health and safety because he used a catheter and urine bag that needed to be emptied frequently and handled with washed hands.
Two months after Molski’s visit to Cable’s, an inspector investigated its restroom facilities and confirmed the one-time patron’s observations using the ADA accessibility guidelines.
Molski sued the restaurant and lost following a three-day jury trial.
At trial, he had called the inspector, Rick Sarantschin, and a construction expert to testify on his behalf, and called Cable’s Vice President Anthony Dalkas as an adverse witness.
The construction expert, Michael Beall, testified that the estimated total cost of remodeling the men’s bathrooms would be $6,000 for one or $8,600 for both, and that an incremental approach such as just insulating the pipes for $20 would be inexpensive.
Dalkas, while acknowledging Cable’s had not attempted to identify barriers to the disabled or make renovations, said the restaurant could afford all of the stated repairs but that the cost would be much higher than what Beall estimated.
Other Suits Filed
In its defense, Cable’s did not call any witnesses but primarily relied on the cross-examination of Molski and Dalkas. Defense lawyers attempted to discredit Molski by showing that his ulterior motive—and that of his counsel, San Francisco attorney Thomas Frankovich—was to use lawsuits to extort settlements out of businesses in violation of the ADA.
Molski acknowledged on cross-examination that he had filed 374 similar lawsuits as of October 2004, that Frankovich had filed 232 of those suits, and that more suits had been filed since that date. He acknowledged that he and Frankovich averaged $4,000 for each case that settled, that he did not pay Frankovich any fees, and that he did not have other employment besides prosecuting ADA cases.
Additionally, Molski said he and his lawyer had filed lawsuits against two other restaurants owned by Cable’s as well as a nearby restaurant, and that up to 95% of Sarantschin’s income was derived from performing investigations for ADA lawsuits.
On the threshold question of whether Cable’s failed to identify and remove architectural barriers at Cable’s, the jury returned a verdict of “no.”
Molski moved for a new trial, but Cable’s argued a “reasonable explanation” for the jury’s verdict was that, because of his history of litigiousness, the jury determined he was not an ‘individual’ under the ADA and thus could not recover for the alleged violations.”
Senior Judge Warren J. Ferguson, writing for the Ninth Circuit, said there was no evidence supporting the jury’s conclusion that Cable’s did not fail to identify and remove architectural barriers.
While acknowledging that some considered Molski a “controversial figure” and “vexatious litigant who exploits the ADA and its state law counterpart for pecuniary gain”—as opposed to a civil rights activist who uses litigation to force compliance with the ADA—Ferguson said the jury’s determination was against the clear weight of the evidence.
“Dalkas, the vice president of Cable’s, acknowledge the continued existence of these violations and flatly admitted that neither he nor anyone else at Cable’s had attempted to identify or remove architectural barriers,” the judge explained.
He went on to say that Tevrizian’s conclusion that Molski was not an “individual” protected under the ADA was unreasonable and legally flawed.
“Neither the District Court nor the defendant provide any support for concluding that a person may be considered a business and not an individual because of a history of litigiousness,” he said, pointing out that Molski’s condition as paraplegic qualified him as an individual authorized to bring ADA suits.
Even if the “Molski-as-business” theory were valid, Ferguson said, the jury was never instructed on it.
Judges Michael Daly Hawkins and Judge Eugene Siler Jr. of the Sixth Circuit, sitting by designation, concurred in the opinion.
Frankovich told the MetNews it was “off the wall” for the defense to believe Molski could be considered a business and not an individual.
He said in bringing his suit against Cable’s, his client was doing “exactly what the law was designed to do.”
“Where people say Jarek Molski is receiving compensation at the same time, his ability to prosecute the cases is saving taxpayers money,” he remarked. “Otherwise you’d have to have an army of DOJ attorneys prosecuting these meritorious cases. Just think what the cost would be to do that.”
Frankovich called the case a “major battle” after which the disability community was poised to “win the war.”
Cable’s counsel, Craig N. Beardsley of Bakersfield, could not be reached for comment.
The case is Molski v. M.J. Cable, Inc., 05-55347.
Copyright 2007, Metropolitan News Company