The letter sent to the owners of Cables Restaurant in Woodland Hills was straightforward enough: They were in violation of the Americans with Disabilities Act of 1990 and needed to conform.
The tone, however, gave Tony Dalkas “a very eerie feeling.”
Written by a San Francisco lawyer on behalf of a wheelchair-bound client who claimed he had not been able to use the restaurant’s restroom, the letter contained multiple references to settling, suggesting that the “cost of litigation could rise, or as some may say, skyrocket.”
Dalkas, a co-owner of the restaurant, didn’t settle. Instead, he scoured the Internet for information about the customer, Jarek Molski. What he discovered was that the 34-year-old Woodland Hills resident, paralyzed in a motorcycle accident as a teenager, had filed more than 400 lawsuits in the federal court’s Central District of California. All the suits accused businesses of violating the ADA and California laws protecting the disabled.
While Dalkas and other small business owners feel they are being targeted by Molski, who may no longer file lawsuits without a judge’s approval, many of them concede they were in violation of ADA regulations and have agreed to make changes as part of the settlements.
Dalkas received a favorable jury verdict last November but nevertheless ended up preparing to spend $500,000 on remodeling efforts to conform to ADA requirements. He said he was always willing to make changes, but only if it was on his own terms.
‘Business as usual’
A search of court records and interviews with lawyers who have defended clients against Molski’s claims found that restaurants, wineries and bowling alleys are his most frequent targets. He has secured numerous settlements of between $15,000 and $25,000, according to the lawyers.
“When I saw the letter, I automatically felt that they were completely out of line,” Dalkas said.
In December, a federal judge came to the same conclusion.
Robert Appert, the lawyer representing a Solvang eatery called Mandarin Touch Restaurant that had been sued by Molski, filed a “vexatious litigant” motion, asking the judge to block the litigation and stop Molski from filing any other claims without the court’s permission.
U.S. District Judge Edward Rafeedie, in Los Angeles, agreed.
In his ruling, Rafeedie pointed to the sheer volume of Molski’s suits and the boilerplate nature of the complaints raised in the filings. The judge cited as evidence separate suits against two restaurants and a winery alleging that Molski was injured using the toilet at each location on the same day in 2003.
“The court is tempted to exclaim: ‘What a lousy day!'” Rafeedie wrote in his opinion. “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.”
A judge can rule that a plaintiff is a vexatious litigant for filing numerous lawsuits for malicious reasons. The determination is largely at the discretion of the judge, who may add sanctions and order the individual not to file any lawsuits without approval.
Vexatious litigants are rare, especially in the federal courts. But Molski’s lawsuits are “unusual,” said Appert.
“This is the only time in my life I’ll run up against a plaintiff like this,” he said. “There aren’t that many opportunities where a plaintiff has the chance to file hundreds of lawsuits. The average plaintiff is probably involved in one or two lawsuits over the course of his life. This person filed 20 per month.”
Filing fees for a complaint in federal court are $250 each.
In L.A. County, Molski has sued three Lamplighter Family Restaurants, the Gardena Bowling Center, Crocodile Caf & #233; in Glendale, Sizzler, TGI Friday’s, Canoga Park Bowl and Cables.
Molski, who sometimes calls himself “the sheriff,” has become so notorious that several restaurants in smaller cities have posted pictures of him on the walls, Appert said. He said Molski has testified that he likes to travel and eat out sometimes as much as three times a day and enjoys wine tasting and bowling.
Molski, whose phone number is unlisted, could not be reached.
But his lawyer, Thomas Frankovich, said the reason so many service businesses, like wineries or restaurants, have become the targets of his suits is because they have more compliance issues than other businesses.
Frankovich, too, drew criticism from Rafeedie.
“In every action,” the judge wrote in the opinion designating Molski a vexatious litigant, “Molski is aided and abetted by his attorneys, often the Thomas E. Frankovich Law Offices, and his corporate co-plaintiff, Disability Rights Enforcement Education Services: Helping You Help Others. For that reason, this court is also issuing orders to show cause why the court should not exercise its inherent power to extend similar sanctions to them.”
DREES, which is a San Rafael-based non-profit, had reported $64,000 in revenue for fiscal 2002, the most recent data available on GuideStar, a non-profit database. Frankovich said Molski is a member of the organization.
Fixing the problems
Frankovich said 99 percent of the cases Molski settles include an agreement by the business to perform remedial work for ADA compliance. “The court owes us an apology,” he said, adding that he plans to appeal Rafeedie’s decision to the 9th Circuit Court of Appeals.
Frankovich said that Molski, supports himself with funds he receives as a result of the accident that rendered him a paraplegic, as well as the compensatory damages he receives in the ADA suits.
As to the large number of cases filed, particularly on the same day, he responded: “So what? Does that mean when Mr. Molski, like other people, travels to Solvang he should go to one store? Does that mean if Mr. Molski goes wine tasting, he can only go to one winery, while everyone else goes to six or eight or 12?”
Frankovich pointed out that his client won’t settle a case for money alone; the businesses must agree to conform to the ADA requirements.
Bob Greene, general manager of the Lamplighter restaurants, said he hadn’t known that his restaurants, built between 1977 and 1983, had to meet ADA requirements that were passed in 1990. Now, he has until April to make changes, which he declined to specify, after settling with Molski. He ended up spending “quite a bit” after all three restaurants were sued, he said.
“Let’s face it: We get a lot of unfortunate people who are disabled and in wheelchairs and, up until Mr. Molski, it’s never been an issue,” he said.
Business owners say complex ADA requirements make it hard to be sure they are in full compliance.
“In the bathroom alone, there are 95 things to comply with, including the height of the grab bars, padding on the pipes underneath your sink, the width of the door, how big a restroom is, the spacing of the items in the restroom,” said Lara Dunbar, senior legislative director of the California Restaurant Association.
Advocates for the disabled said that was a typical response from businesses. Most establishments, despite being subject to the ADA for the past 15 years, do not comply with its regulations because of costs and poor enforcement, said Helena Berger, chief operating officer of the American Association of People with Disabilities in Washington.
She said many businesses will not spend money to retrofit their buildings unless they are forced and individuals are the primary means for that enforcement.
“What this gentleman is doing is unfortunate and frivolous and unethical, and we wouldn’t endorse that as a way of promoting ADA,” she said of Molski. “But the message should not be lost that 15 years later there are many buildings not in compliance with the ADA accessibility guidelines.”
