Notorious Disabled Litigant Entitled to Pursue Access Lawsuits
By David Goldman
[Originally published as a Wendel Rosen Update, April 2006]
The Americans With Disabilities Act (“ADA”) was enacted by the United States Congress in 1990 with the stated goal of remedying discrimination against individuals with disabilities. Among other things, the ADA requires removal of structural barriers in businesses open to the public “where such removal is readily achievable.” 42 U.S.C. §12182(b)(2)(A)(iv). Where removal of a barrier is not readily achievable, businesses must provide access “through alternative methods if such methods are readily achievable.” 42 U.S.C. §12182(b)(2)(A)(v). Aggrieved individuals may bring a private action to enforce the ADA and, if successful, obtain injunctive relief and an award of attorney's fees. 42 U.S.C. §§12188(a)(1); 2000a-3(a).
Similarly, California has adopted the Unruh Civil Rights Act, which provides that any violation of the ADA shall constitute a violation of state law. Cal. Civil Code §51(f). Unlike the ADA, California law awards money damages “for each and every offense ... up to a maximum of three times the amount of actual damage but in no case less than $4,000, and any attorney’s fees that may be determined by the court.” Cal. Civil Code §52(a). Not surprisingly, ADA access lawsuits have proliferated, particularly in California, because a financial incentive exists to pursue this type of litigation.
Some disabled individuals and their attorneys have become notorious as a result of questionable tactics that seem to be geared more towards extorting money from business owners than pursuing more altruistic goals of providing necessary access for disabled individuals to places of public accommodation. While the business community has justifiably complained about these strong arm tactics, the right to pursue business owners for failing to comply with ADA equal access requirements have been repeatedly upheld by the courts.
One recent example of this dilemma can be found in the U.S. District Court in Los Angeles involving a series of lawsuits filed by one of the most prolific disabled litigants, Jarek Molski and his San Francisco attorney. Molski, et al. v. Mandarin Touch Restaurant (CD Cal. 2004) 347 F.Supp.2d 860. While the court determined that Molski was a “vexatious litigant” and required him to apply for an order before filing any more ADA lawsuits, it also reaffirmed Molski’s right to pursue such lawsuits. The court made this ruling even though it described such lawsuits as “part of a scheme of systematic extortion designed to harass and intimidate business owners into agreeing to cash settlements.” Id. at 864.
Citing the language of a federal court in Florida, the court in Molski described some ADA litigation as a shakedown scheme:
The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violation, and attempting to remedy the matter through “conciliation and voluntary compliance,” [citation omitted], a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business. Faced with the specter of the cost of litigation and a potentially fatal judgment against them, most businesses quickly settle the matter. The results of this scheme is that “the means for enforcing the ADA (attorney's fees) have become more important and desirable than the end (accessibility for disabled individuals).” Citation omitted. A serial plaintiff, like Molski, serve as “professional pawn[s] in an ongoing scheme to bilk attorney's fees.” Citation omitted. It is a “type of shotgun litigation [that] undermines both the spirit and the purpose of the ADA.” Citation omitted. Molski, 347 F.Supp.2d at 863.
Here is why the Court concluded Molski's claims were suspicious. First was the shear volume of lawsuits filed. Molski had filed almost 400 lawsuits since 1998. Id. at 861.
The court also examined the “textual and factual similarity of the complaints” and concluded that Molski's complaints were “contrived and not credible.” Molski typically sued restaurants (and wineries) alleging that he intended to dine out, but the restaurant lacked adequate disabled parking, the food counter was too high and that when he attempted to use the restroom, he would injure his shoulders while transferring himself from the wheelchair to the toilet because the toilet grab bars were improperly installed. The court examined a series of complaints filed on one particular day, May 20, 2003, and found each alleged that Molski sustained nearly identical injuries in two different restaurants and a winery and the court stated that it was tempted to exclaim, “what a lousy day!” Instead, the court observed that 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.” Id. at 865. In fact, when the court examined the five day time period from May 19 through May 23, 2003, it found that Molski had filed 13 separate lawsuits, alleging essentially identical injuries to the same part of Molski's body, in the course of performing the same activity.
In a later decision in the case, the same judge observed:. . .
[On] May 23, 2003, Molski claims he was injured at five separate businesses that were separated from one another by a total distance of more than 140 miles, and which are 160 to 300 miles from his home ... [Further,] the rate of physical injury defies common sense ... Common sense dictates that an individual who has encountered as many architectural barriers as Mr. Molski would know which barriers should be avoided, and which are unlikely to result in injury. It seems likely that, if Molski indeed injured himself repeatedly in nearly identical fashion, the injuries are not accidental, as claimed, but instead are sustained intentionally so that a physical injury can be alleged as part of a subsequent lawsuit. Molski, et al. v. Mandarin Touch Restaurant (C.D.Cal. 2005) 359 F.Supp.2d 924, 930-931 (“Molski 2”).
While the particular modus operandi of Molski and his attorney provide compelling reasons to restrict their filing of ADA lawsuits, more disturbing is the court’s conclusion that Molski nevertheless had the right to continue to pursue such lawsuits. The court made clear that its assessment of Molski's motivations “does not excuse the existence of an architectural barrier, nor does it disparage Molski’s right of access at any public accommodation.” Molski 2, 359 F.Supp.2d at 931.
Apparently, buoyed by the court's initial rulings and scathing attack on Molski and his attorney, a variety of similarly situated defendants and their legal counsel tried to have the ADA lawsuits brought by Molski dismissed for lack of jurisdiction on the grounds that Molski’s litigious activities demonstrate his ADA claims were brought in bad faith and that he did not visit the restaurants to eat and enjoy the food, but instead to manufacture lawsuits to extort a monetary settlement. See Molski v. Arby’s Huntington Beach (C.D.Cal. 2005) 359 F.Supp.2d 938, 941, (“Molski 3”). According to Molski, “his love of traveling and ‘overall drive for life’ results in visits to numerous public establishments.” Id. at 942. But this effort by the defendant business owners was quickly rejected as the court determined it could not dismiss Molski’s ADA claims at the early stages of those lawsuits. It simply did not matter “what Mr. Molski’s motivation was for visiting Arby’s. All that matters is that Mr. Molski alleges he did visit the restaurant, he was denied full access to enjoyment of the premises because of architectural barriers, and he would return to the restaurant if those barriers are removed.” The fact that Molski had filed hundreds of virtually identical lawsuits throughout California alleging violations of the ADA and routinely dismissed them in exchange for a monetary settlement was “irrelevant.” Parenthetically, the court noted that ADA litigation abuse “cries out for a legislative solution” but it determined that, in effect, its hands were tied. Molski 3, 359 F.Supp.2d at 945, fn. 6. However, one recent legislative attempt to modify state accessibility enforcement law was rejected by the California Senate Judiciary Committee in May 2005.
What Business Owners Should Do
What are the lessons to be learned from the Molski court decisions? Being angry at the questionable tactics of Molski and others like him will not help business owners who are not in compliance with ADA accessibility requirements. The particularly egregious tactics of Molski and his attorney highlight the overriding need for business owners to address equal access issues now, rather than waiting until a lawsuit is filed.
New buildings must, of course, comply with the current accessibility requirements of the law; however, existing buildings are not “grandfathered in” if they have not undertaken remodeling of their premises, as many business owners believe (or hope). Businesses that provide goods or services to the public (i.e., hotels, restaurants, retail stores, etc.) must still make their services and facilities fully accessible whenever it is readily achievable to do so.
Even when removal of architectural barriers is not readily achievable, “alternative” methods to gain access usually must be provided. For example, if a ramp cannot be installed at the front of a store to allow wheelchair access because of insufficient space, an accessible buzzer may be required to enable disabled customers to alert a business so that it can unfold a portable ramp. In other words, even though a business may find it infeasible to make its business fully accessible by removing all architectural barriers, there are a great many things that businesses can comfortably do to make their businesses more accessible.
The first thing businesses should do is to perform an accessibility audit. It may be as easy as asking a disabled friend or colleague to visit your business to see if full access is possible. Better yet, ask an architect experienced in equal-access requirements or other qualified ADA consultant to do a “walk through” of your business and quickly identify areas that may not comply with ADA regulations. This can often be done without substantial cost. While business owners often feel overwhelmed by the potential cost of making modifications to their business premises, the “put your head in the sand” approach did not help the businesses Mr. Molski sued, and they will not help other businesses avoid the cost and anxiety of defending ADA access litigation. Simply stated, public accommodations should, and could, do what they can to make their businesses more accessible. Many access improvements can be done quickly and economically. Even if full compliance is not achieved, improving disabled access will go a long way to reducing potential exposure to costly ADA litigation.
Why is this true? Because, although it has been 15 years since the enactment of the ADA, a great many public accommodations are not in compliance with the legal accessibility requirements. The professional ADA litigant has plenty of businesses to choose from when deciding who to sue for ADA access compliance. More often than not they choose the “low hanging fruit,” that is, businesses where no effort has been made to comply with the ADA. Businesses can minimize their exposure to these types of lawsuits by doing simple, cost-effective things like posting ADA approved signs on their businesses, and alerting disabled individuals that access is available or alternative means exist to the services or facilities of the business. Designating certain parking stalls for disabled person parking only, painting disabled parking striping in parking lots, and posting the disabled parking signs can go a long way towards discouraging ADA litigation, and at minimal cost.
When the United States Congress enacted the ADA, it determined that there were more than 40 million disabled people in the United States. Making one’s business more accessible to the buying potential of the vast number of disabled individuals can generate a substantial economic benefit. One thing is for sure; being angry at the few disabled individuals that have exploited the ADA will not serve businesses well in court. However, assessing the accessibility of one’s business premises and taking modest steps to address unequal access will go a long way to taking advantage of the purchasing power of the disabled community and avoiding the cost of litigation.
