A paralyzed man who has sued hundreds of businesses, including four in Morgan Hill, over accommodations for the disabled lost his Supreme Court appeal Monday to get out from under a court order requiring special permission to file new lawsuits.
Jarek Molski has been labeled a "vexatious litigant" by federal courts in California because he has filed roughly 400 lawsuits in five years alleging that restaurants and other businesses are in violation of the federal Americans with Disabilities Act. Molski is paralyzed from the chest down and uses a wheelchair.
The justices rejected his case, Molski v. Evergreen Dynasty Corp., without comment Nov. 17.
Molski frequently complains about the lack of handicapped van parking, counters that are too high, narrow doorways and grab-bars installed too high or low in bathrooms. In addition, he often says he was injured in the course of his visit. Targeted business owners often have settled out of court rather than pay attorneys and take the time to fight the lawsuits.
In a December 2004 order, Judge Edward Rafeedie of the U.S. District Court of Central California said that Molski, 34, "is filing boilerplate complaints" with the intent to "harass businesses" and "extort a cash settlement."
Molski typically sued 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 ranged between $20,000 and $30,000, according to Molski's lawyer, Thomas Frankovich.
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, in south county, and Rapazzini Winery, in Gilroy, 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 pointed 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."
"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."
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 in a 2004 interview. "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."
The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the ruling that Molski was an abusive litigant, although it noted that many of the establishments he sued probably were violating federal law.
"On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury," the appeals court said.
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