A wheelchair-bound man that has sued a dozen area businesses for
substandard handicapped facilities has been dubbed a
”
vexatious litigant,
”
a designation that could limit his ability to file future
lawsuits.
A wheelchair-bound man that has sued a dozen area businesses for substandard handicapped facilities has been dubbed a “vexatious litigant,” a designation that could limit his ability to file future lawsuits.
In a Dec. 9 order, Judge Edward Rafeedie of the U.S. District Court of Central California said that Jarek Molski, a 34-year-old handicapped man who in the last five years has sued more than 400 California businesses for alleged violations of the Americans with Disabilities Act, “is filing boilerplate complaints” with the intent to “harass businesses” and “extort a cash settlement.”
Molski typically sues for $4,000 per day in damages until ADA violations are corrected, but in most cases he accepts a cash settlement. Lawyers in the field said the vast majority of small businesses settle out of court when faced with the high legal costs and unpredictable outcome of fighting the case. The settlements generally range between $20,000 and $30,000, according to Molski’s lawyer, Thomas Frankovich.
His client’s designation as a vexatious litigant would not bar him from suing again, but would require future judges to review the merits of each case after being informed of Rafeedie’s order. Molski and Frankovich intend to fight the order at a Jan. 10 court hearing in Los Angeles.
In making his decision, Rafeedie pointed to three cases involving area businesses. All three complaints stem from visits Molski claims to have made on May 20, 2003.
In one complaint against El 7 Mares Restaurant, in Gilroy, he alleges that the restaurant lacked adequate parking, the food counter was too high, and that the handicapped bar in the restroom was installed improperly, causing him to injure his shoulder in the process of using it.
In two separate lawsuits, Molski makes “nearly identical charges” against Casa de Fruta, near Hollister on Highway 156, and Rapazzini Winery, off Highway 25 at the U.S. 101 on ramp, Rafeedie pointed out.
“The court is tempted to exclaim: What a lousy day! It would be highly unusual – to say the least – for anyone to sustain two injuries, let alone three, in a single day, each of which necessitated a separate federal lawsuit,” Rafeedie wrote. “But in Molski’s case, May, 20, 2003, was simply business as usual.”
Rafeedie went on to point out that Molski filed 13 separate complaints for “essentially identical injuries” sustained between May 19 and 23, 2003, along with the hundreds of suits filed over the last four years which contain similar allegations.
While acknowledging that many of the businesses sued may not have been in full compliance with ADA requirements, Rafeedie wrote that “the record before this court leads it to conclude that these suits were filed maliciously, in order to extort a cash settlement.”
Frankovich countered that Rafeedie is protecting businesses that have done nothing to meet ADA standards, despite having years to come up to code. He views Molski as an agent of justice.
“He’s enforcing the law,” Frankovich said. “Period. The law is the law is the law. If that means that he can enforce the law to make changes, to make them pay the minimal penalty, then that’s his right to do it. What’s being done here is an attempt to protect scofflaws who’ve had close to 15 years to come into compliance.”
He also criticized the suggestion that Molski exaggerated his injuries, calling them the result of “repetitive, continuous, and cumulative trauma.”
“Eventually he’ll need surgical intervention for the rotator cuffs,” Frankovich said. “At the 400th restaurant, are we going to say you have to pay for the rotator surgery? No, because the 400th restaurant is going to say it’s every other restaurant that cumulatively caused this.”
But judge Rafeedie questioned the true motivations of Molski and Frankovich, given the manner in which they have pursued their cases.
Federal law provides no monetary damages for successful ADA lawsuits, but allows plaintiffs to recover legal expenses and provides for an injunction forcing ADA violators to bring their facilities up to code. Plaintiffs can win monetary awards in federal court only by tacking on associated violations of various state laws. The strategy has proven effective, according to Rafeedie, who pointed out that the “overwhelming majority” of cases settle.
“The threat of significant money damages is a much more effective inducement to settle than merely requesting a court order to make ‘readily achievable’ repairs,” Rafeedie wrote. “Molski’s M.O. is clear: sue, settle, and move on to the next suit.”
Sara B. Allman represented the owners of Gilroy’s Longhouse Restaurant in a case that settled out of court. She declined to say how much the restaurant paid, but said she represents about seven or eight businesses involved in ADA cases – all of them against Molski or one of his associates.
“Most of them do settle because there are issues that need to be remedied,” she admitted. “I mean, if somebody is looking hard enough they’ll be able to come up with some technical violation of the ADA.”
Renton Ralph, who represents El 7 Mares, also admitted to violations, but said his clients will seek to dismiss the suit since they “voluntarily came into compliance” immediately after Molski sued. The changes included lowering the heights of the bathroom’s handicapped grab-bar and the soap dish, moving the toilet out from the wall, and adding a handicapped parking space in the back parking lot.
The vexatious litigant order has emboldened others, like Rapazzini Winery, to fight Molski in court. Hollister lawyer William Marder, who represents Rapazzini, said the winery has not violated ADA requirements.
“I feel this is a moral issue,” he said. “It’s very important we all work to accommodate the disabled. At the same time, we shouldn’t be subject to shakedown bad-faith lawsuits.”
Marder said he would invoke the Rafeedie order and other evidence in an effort to have the lawsuit thrown out of court.
Frankovich remained undaunted.
“Our team is nationally recognized in Constitutional law,” he said. “If any of these people think I’m going away with this ruling, I’m coming back with a vengeance … I’m here to enforce the law. I make no apologies at all. And I ain’t backing down.”
It remains unclear if the vexatious litigant order will affect local cases. To do so, a judge in the northern district court would have to rely on Rafeedie’s ruling, issued in the central district. Allman remained doubtful that “another judge would go as far as Judge Rafeedie has.”
If nothing else, the case draws attention to a murky legal issue with strong arguments on either side.
“I think that arguably this is a scheme to make money, but the complicating factor is that these lawsuits do have the effect of affecting positive changes,” she said. “Yeah, you feel like you’re being held up for ransom, but in the process something good comes of it.”
