Patterico's Pontifications

3/26/2007

Vexatious Litigant Makes Living off ADA

Filed under: General,Law — Patterico @ 12:00 am

Jarek Molski of Woodland Hills is disabled. He goes to a lot of restaurants, finds violations of the Americans with Disabilities Act, and sues.

A lot.

You can get some background on the guy, and his lawyer Thomas Frankovich, in a series of “Overlawyered” posts accessible here.

Anyway, a recent Ninth Circuit decision orders a new trial in a case where the jury found against Molski. Read this excerpt and marvel at what is permitted under the ADA:

The defendant did not call any witnesses, but relied primarily on its cross-examination of Molski and Dalkas. In essence, the defendant’s strategy was to discredit Molski by exposing an ulterior motive for bringing suit: Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of Cable’s employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000; Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and [Molski’s private investigator] Sarantchin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.

My dad was a George Gershwin fan, and it’s a Gershwin tune that’s going through my head right now: “Nice Work If You Can Get It.”

Suing guys who put their
Paper towels too high
Nice work if you can get it
And you can get it if you try

Now, it’s the American Way that when you get a court decision this absurd, you blame the court. Damn Ninth Circus! Buncha libs! This is why we need conservative judges! Etc.

But I’m here to tell you: the case doesn’t seem badly reasoned to me. The evidence was undisputed. The restaurant was in violation of the ADA. And under the law, the owner is liable.

If the court ruled correctly, this can only mean that this law is completely out of control.

If you think this is ridiculous, don’t blame the courts. It’s up to you, the citizens of this country, to do something about this.

25 Responses to “Vexatious Litigant Makes Living off ADA”

  1. Why is it that appellate courts seem to find “overbroad” language in statutes they do not like, but never seem to find similar language when the victim is business?

    As for ADA violations, why is it not a matter of routine inspection in restaurants, just as proper food handling and clean facilities are checked? If an establishment passes muster, it is then immune from predatory parasites like this guy.

    Ed (1deb51)

  2. well, it appears patterico believes we should live in a perfect world, where, if someone is in a highly technical violation of whatever law, they should be extorted by lawyers. why is it up to the citizens of this country to correct extortion by lawyers and/or courts? where the hell is the calif. BAR in these matters?

    james conrad (7cd809)

  3. One of the root problems with laws like the ADA is the fact that Congress exempts itself from them. If Congress had to deal with the same problems with many of the laws that they pass as we do, there would be fewer of these problems.

    There is something to be said with following and enforcing laws as they are written. Once you start choosing which laws have to be followed, no laws have to be followed.

    That said, there is also room in our system for judges and juries to illustrate the absurdities and injustices in a law with their verdicts.

    Lastly, anyone at all familiar with the Ninth Circuit should not be surprised with this verdict.

    gahrie (de5a83)

  4. I have read about this lawyer before. I believe the lawyer was banned from placing these cases before the court (I do not remember the legal term).

    davod (afe5a1)

  5. where the hell is the calif. BAR in these matters?

    Laughing all the way to the bank.

    Hogarth (a721ef)

  6. When I was externing for a District Court judge in L.A., I remember several ADA suits by Molski coming across my desk. And then an order from another judge in the same building declared Molski a vexatious litigant (footnote 1 in the 9th’s opinion) and requiring the court’s approval prior to filing any future ADA suits.

    The order makes for fun reading:

    For example, in Molski v. El 7 Mares Restaurant, Case No. C04-1882 (N.D. Cal. 2004), Molski claims that, on May 20, 2003, he and significant other, Brygida Molski, attended the El 7 Mares Restaurant for the purposes of dining out. Molski alleges that the restaurant lacked adequate handicapped parking, and that the food counter was too high. After the meal, Molski attempted to use the restroom, but because the toilet’s grab bars were improperly installed, he injured his shoulders in the process of transferring himself from his wheelchair to the toilet. Thereafter, he was unable to wash his hands because of the lavatory’s design.

    Although this complaint appears credible standing alone, its validity is undermined [**13] when viewed alongside Molski’s other complaints. In Molski v. Casa De Fruta, L.P., Case No. C04-1981 (N.D. Cal. 2004), Molski alleges that he sustained nearly identical injuries on the exact same day, May 20, 2003. In Casa de Fruta, Molski alleges that he and significant other, Brygida Molski, patronized Casa de Fruta for the purpose of wine tasting. On [*865] arrival, Molski was again unable to locate van accessible parking. Once inside, Molski again found the counter to be too high. After wine tasting, Molski again decided to use the restroom, and again, injured his upper extremities while in the process of transferring himself to the toilet. Thereafter, he was once again unable to wash his hands due to the design of the lavatory.

    This was, apparently, not the end of Molski’s day. In Molski v. Rapazzini Winery, Case No. C04-1881 (N.D. Cal. 2004), Molski once again alleges that he sustained nearly identical injuries on the exact same day, May 20, 2003. Molski, again accompanied by Brygida Molski, claims he visited the Rapazzini Winery for the purpose of wine tasting. Again, Molski complains that the parking lot lacked adequate handicapped van accessible parking. Upon entering [**14] the establishment, he discovered that the counter was too high. After tasting wine, he again needed to use the restroom. In the course of transferring himself from his wheelchair to the toilet, he injured himself yet again. Thereafter, he was again unable to wash his hands due to the lavatory’s design.

    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. But in Molski’s case, May 20, 2003, was simply business as usual. Molski filed 13 separate complaints for essentially identical injuries sustained between May 19, 2003 and May 23, 2003. The Court simply does not believe that Molski suffered 13 nearly identical injuries, generally to the same part of his body, in the course of performing the same activity, over a five-day period. This is to say nothing of the hundreds of other lawsuits Molski has filed over the last four years, many of which make nearly identical allegations. The record before this Court leads it to conclude that these suits were filed maliciously, in order to extort a cash settlement.

    Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860

    Gives further flavor to the proceedings…

    Army Lawyer (0de2e7)

  7. Yea, I have to agree on the ADA thing. If getting my business degree taught me anything, it taught me that starting a business involved (hell, in some classes it seemed to center around) submitting yourself to massive and probably unsatisfiable regulations.

    You would then try to make money without being sued, which, as our Business Law Professor helpfully explained, could basically happen for anything that would ever happen and was almost completely unpreventable.

    Kinda put a crimp in my entrepeneurial ambitions, I’ll tell ya.

    David N. Scott (71e316)

  8. Hmmm.

    If alcoholism is a disability then could a restaurant be sued under the ADA for not having a liquor license?

    memomachine (0b5c51)

  9. #8, the restaurant could be sued by an alcoholic if it does have a liquor license. This interpretation could spawn a Fortune 500 business.

    martin (b01bed)

  10. The ADA is being used by greedy trial lawyers tio rake in the dough its time to pluck them damn vultures

    krazy kagu (9baf51)

  11. And the moment anyone tries to change this stupid law, the press will vilify them as ogres who want to repossess wheelchairs from paraplegics.

    Kevin Murphy (805c5b)

  12. We can thank a Republican for the ADA absurdity…Bush #41

    rab (07e772)

  13. The defense that a suing party is a “business” and not an individual does ring very hollow. Also, unless the caption is new, I don’t see any deception to what Mr. Molski is doing.

    I know it sends some conservatives into epileptic fits to think of someone actually making a really good living by making sure that government regulations are followed. This guy has actually found a way to make lots of money pointing out obvious design flaws in restaurants that hamper access for the disabled. Good for him, I say.

    Contrary to Patterico’s comment that the ADA “is completely out of control,” the arrogance of the defendants in these cases is what’s really out of control. The defendant in this case “acknowledged that the company had not attempted to identify barriers to the disabled. He admitted that [the Defendant] had not made the renovations because “[w]e weren’t compelled to do it.” Further the defendant testified that the restaurant could afford to make the facility accessible but didn’t want to “open up a can of worms” by actually attempting to comply when someone told them they weren’t accessible.

    Mr. Molski IS disabled. He is in a wheelchair. He is dependent on compliance with ADA regulations to properly access these facilities. He obviously got sick of the constant, blatant disregard of these accessibility requirements by businesses, and through some creative thinking figured out how to make a good living and enforce compliance at the same time.

    Phil (427875)

  14. No deception? Phil, you can’t be serious. Apparently you missed Army Lawyer’s post above in which Molski is caught alleging 13 separate incidents of almost identical nature in a span of 4 days. Got that – 4 days? I know that complaints and allegations are generally broad and encompass everything under the sun, but they are still pleadings and still must be truthful. To argue that those 13 incidents actually happened as alleged, you are either very gullible or detached from reality.

    dw (655ade)

  15. #13 wrote:
    I know it sends some conservatives into epileptic fits to think of someone actually making a really good living by making sure that government regulations are followed.

    Expanding dw’s comment, the plaintiff and his attorney are lying to the court, again and again. That is not “creative thinking,” it is flagrant dishonesty.

    Perfect Sense (b6ec8c)

  16. “I know it sends some conservatives into epileptic fits to think of someone actually making a really good living by making sure that government regulations are followed.”

    Phil..
    I am a licensed Architect and the building code requires ADA compliance for a permit to be finalized. This jerk isn’t suing businesses, he is suing people. People whose building complied with the code when the building was built or remodeled. The ADA is poorly written and open to a different interpretation by everyone who reads it. The first code used in California was written by a board of handicapped people who had never written a building code in their life. Among other things that code required a measurement from the side of a toilet to the side of a wall that was impossible to comply with because you can’t “nudge” cast iron pipes into place and toilet bowls are not manufactured to a single standard. All the lawyers in the world can’t “nudge” cast iron. The current code required grab bars to be 1-1/2” from a wall. This is impossible. The bar is going to be slightly closer or slightly farther away at some point along its 3 foot length. Buildings are built by hand, by teams of people who don’t always work with the same team using materials manufactured in countries from all over the globe. No amount of money, time or effort can eliminate every interpretation of 100% of the code violations from every building. By ignoring these facts the ADA and the lawyers and others who defend it stand in direct opposition to reality. Allowing lawyers to sue and win without giving the building owner a chance to make modifications with no penalty is a financial disaster for many small business owners. One guy in Westminster, California had to sell his wife’s wedding ring to pay off one of these creeps. I am sure you would not take that mean spirited tone about “some conservatives” if you knew what you were writing about.

    tyree (b2fade)

  17. Yes, this guy is out of line, but so are many MANY business owners who do a half-assed job of installing handicap railings and the like. I’m not handicapped, but my father is and walks with a cane. He complains ALL THE TIME to whatever worker-bee will listen that the aisles are too narrow, have too many displays blocking his way, the handicapped parking is insufficient, etc. All to no avail. He readily joined a class-action lawsuit against Macy’s alledging the above. He had given up on shopping there — too much crap blocking the aisles. The staff did nothing to help out. Macy’s lost, and rightfully so.

    Yes, he’s a cranky old man with too much free time, but I find myself agreeing with him more often than not. Most problems that arise are do to poor retro-fitting. New buildings are fine.

    And please don’t complain about there being “too many” handicapped parking spots. You can walk the extra 15 feet.

    Viktor (d85a5d)

  18. Viktor…
    I understand your father’s situation, but that still doesn’t mean the ADA is good law. I have seen many beautiful historic building demolished because the cost of retrofitting was too high. Instead of coming up with a good law that sets guidelines that protect the people who follow the law, the ADA opens up everyone to lawsuits. As I said in a previous comment, the law allows someone to get damages without giving the owner any grace period to make changes, and every building has a problem somewhere. There was a handicapped restaurant owner in SoCal who was sued who had many wheelchair bound regular customers who never saw anything wrong with her restrooms. She got a judgment against her from the lawsuit industry and it cost her thousands of dollars. Her handicapped modifications were permitted by the city and signed of by the building inspector. The ADA must be modified to give the owner 90 days or more to fix a perceived problem before the hammer comes down on their saving account. Building owners deserve a legal system that doesn’t paint a bullseye on their pocketbook.
    It is interesting that you brought up parking. When my mother had her stroke we couldn’t use the handicapped space until my father got her a plastic badge for the rear view mirror. Those spaces are not for the handicapped, they are for people who have the plastic badge. It didn’t matter that my father was a Doctor or that she was confined to a wheel chair, the plastic badge allows you to park in the space, not your handicap. That has caused more tickets and tears than I want to think about.

    tyree (9874a0)

  19. There’s a point where compassion ends and tyranny for the sake of the worthless begins. In this regard Clinton was better than Bush ’41 — he made some of the worthless drones on welfare go to work. ADA is a waste of resources, public and private, for the sake of those who will never contribute enough to society to justify their continued existence. Unless I crippled the worthless SOB who cannot stand on his own two feet he can patronize my business if it suits him or not but he has no right to steal food from my children’s mouths to make his life more comfortable.

    nk (0383ba)

  20. This is another example of Bush (#41) signing a bill that should have been consigned to the ash-heap of legislative woulda-coulda-shoulda. #41 gave us this turkey, and #43 gave us McCain-Feingold. It must be something in Preppie genes.

    Another Drew (8018ee)

  21. No Patterico, you couldn’t be more wrong. Why? The courts exist not to reward professional litigators, but rather genuinely hurt people. Courts should not sully their hands by rewarding those who seek out harm.

    Personally, this creature, if caught lying to a tribunal more than once, should be prosecuted under RICO statutes and should spend the rest of his pathetic, disgusting life behind bars. He is every bit as evil as criminals who knock old ladies over the head.

    SPO (62ca0c)

  22. “This is another example of Bush (#41) signing a bill that should have been consigned to the ash-heap of legislative woulda-coulda-shoulda.”

    Don’t worry; there is more than enough blame in the ADA debacle to go around. While every bill is being put together there are always lots of opinions on what it will do and what changes it will make in the way people deal with one another. I am sure none of the sponsors of this law really thought it would lead to the kind of abuse the ADA has led to. I do blame all the politicians that came after for not listening to their constituents who have been complaining about the holes in the ADA for years.

    tyree (9874a0)

  23. Isn’t there a general principle in the law that contracts and laws are to be interpreted in a way that avoids absurd results? It seems that judges are ignoring this principle.

    Ken (245846)

  24. Being a small business owner and getting sued under ADA, I have alot to say and alot less money. The sherriff who submitted the papers to me said that he served papers to 40 other businesses with the same lawyer and plantiff. Now isn’t that ironic. I did have $78.00 worth of repairs (like toilet paper holder was 2 inches too high etc..)to be in code with ADA, but my lawyers bill, well suffice it to say – I am still furious. I would go out of my way to help any one of my customers who is handicapped. I believe the town and city officials should become familiar with ADA requirements and have all business owners be up to code before giving out occupational licenses. Then these particular theives ( I mean ) lawyers would have no reason to be bothering those who really work hard for every dollar!

    still fuming (1b2250)


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