One man sues hundreds of businesses over access
By Erin Carlyle - Staff Writer

6/13/04 From where Jarek Molski sits in his wheelchair, there are too many businesses that do not take seriously the needs and rights of people with disabilities.

Doors are too heavy, restrooms are not accessible, ramps are too steep and parking areas are difficult to navigate. The list goes on and on, according to Molski, 34, a paraplegic from Woodland Hills.

A few years ago he decided to do something about it. Since 1998, Molski has sued more than 300 California businesses - 43 of them in Santa Barbara and San Luis Obispo counties - for violations of the Americans With Disabilities Act of 1990 (ADA).

Among the Central Coast businesses he has accused of flouting federal and state disability access rules are the Fess Parker and Foley Estates wineries and the Los Olivos Cafe in the Santa Ynez Valley, and the EOS Estate and Eberle wineries outside of Paso Robles.

Defendants also include the husband of retiring Santa Barbara County Supervisor Gail Marshall, who owns the Hitching Post II restaurant building in Buellton, and the winery started by Brooks Firestone, who will take over Marshall's post in January.

Molski says he's doing nothing more than fighting for the rights of 49.7 million disabled Americans.

But local vintners and business owners - and even some in the disabled community - charge that Molski is getting rich through court settlements in a blatant abuse of the legal system.

"This is just a way of them making money," said Susan West, public relations director for Eberle Winery, which was sued by Molski. "What do you do for a living? I sue people for a living."

Molski rejects that characterization.

"I have enough education that I don't see how I would have a financial incentive in and of itself to file claims against businesses if I didn't feel something stronger or deeper about the problems and issues that are in my everyday life," said Molski, a licensed tax attorney.

Businesses complain that there is no sure-fire way to make sure they comply with ADA rules, leaving them open to repeated suits even after they think they've fixed all problems.

And because legal fees for a court battle can quickly outpace the costs of settling, business owners say they have little choice but to fork over the money - even if they believe they've done nothing wrong.

But Molksi says businesses are clearly violating the law, and he makes sure the targets of his lawsuits fix their facilities as part of the settlement agreements.

At the Hitching Post II restaurant, Molski cited a lack of handicapped parking spaces on its asphalt lot, and claimed he could not close an overly narrow stall door in the men's restroom, according to court documents.

Firestone Winery's door was too heavy and the facility did not have enough handicap parking spaces, Molski alleged. Fess Parker Winery had a cobblestone ramp, which is difficult to traverse in a wheelchair, according to court documents. Ramps in underground caves used for wine storage were too steep at Eberle Winery, according to Molski's complaint.

All the facilities lacked a bar or wine tasting facility that he could reach, according to the court documents.

Hero or gold-digger?

Molski won't say how much he has made pursuing such lawsuits full time, which he's done since 2001.

But his attorney, Thomas Frankovich, said that most suits end not in a court battle but with a settlement of $20,000 to $35,000, including attorney fees.

Court records show that Molski has completed almost 150 suits so far. Based on Frankovich's numbers, that means Molski has grossed $3 million to $5.3 million before paying his attorney.

"The whole crazy thing about Mr. Molski is that if somebody came and represented Mr. Molski and said the handicapped community said these are things that need to be corrected ... we would say you're right and we would want to correct them," said Kerry Vix, general manager and a partner at EOS Estate Winery.

Wineries say that Molski knows it's cheaper for businesses to settle than go through the court process.

"The sad part is we had actually done most of the (ADA compliance) things prior to the suit," said Adam Firestone, president of Firestone Winery. "But it didn't matter because they claimed injury prior to that."

Molski and his lawyer shrug off the criticisms.

"I've found that if you don't bring a claim in court, then pretty much nothing gets done," said Molski, who became a paraplegic in a motorcycle accident 16 years ago.

"Yes, he's made a lot of money doing it, but there's not that many people that want to go ahead and fight for their own rights," Frankovich said.

The ADA is designed to be enforced by Department of Justice investigations and private plaintiffs suing, he points out.

"The issue is just there's not enough people in the Department of Justice in civil rights ... that can handle (all the cases)," Frankovich said.

No Excuse?

Some of the wineries claim they were unaware of their accessibility problems. Others say they were in the process of fixing violations when they were sued. Uniformly, they felt there was little they could do to protect themselves from such suits.

"We're an old tasting room and old barn," said Alan Phillips, general manger of Foley Estates Vineyards and Winery.

"I think these things that we addressed in relation to the Disabilities Act were simply things that fell through the cracks. It was not blatant disregard, nor impediments to visiting our winery."

But Molski and Frankovich say business owners have no excuse.

"The position that we take is that the ADA was passed almost 14 years ago ... So there's been 14 years for places to come into compliance," Frankovich said.

The law requires new and altered buildings to comply with ADA Standards for Accessible Design, and existing buildings to change when reasonable to do so.

The Department of Justice Web site states: "Public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources."

Vintners say the issues Molski raises are minor items that do not impede accessibility.

"What exactly is a minor issue? Is a minor issue to you that the door is too heavy?" Molski said. "Maybe. But you know what, if you sit in my wheelchair and you try to open a door that is 30 or so pounds heavy, then I'd like to see you do that."

California disability law

"Although the ADA laws are prevalent throughout the nation, damages provisions may or may not exist in one particular state," said Wendell Lee, general counsel for the Wine Institute, a San Francisco-based industry group.

"That's why you see more ADA litigation out of California and Florida. It's only where the state provides monetary incentive that there is an incentive to sue," Lee said.

The suits are filed in federal courts because the crux of the lawsuits is generally ADA violations, according to Frankovich's firm.

California law allows for civil-rights-violations damages claims of at least $4,000, Frankovich said. A new state law allows government agencies to impose civil penalties of $2,500 for state disability law violations plus $500 per violation, per day. Those penalties would go to the government agency, not the person suing.

But most of the cases don't go through a trial.

"If they have lawyers experienced in this area they're going to be told it's better to get everything fixed and get this case settled and you don't have a reasonable defense," Frankovich said.

Molski is part of a growing trend of disabled plaintiffs. George Louie has sued over 900 California businesses, according to court records, and there are others.

While businesses say some of the legal actions are frivolous, Molski claims his are not.

"If you think there is something frivolous about these lawsuits ... then maybe you should write the Legislature because those are the people that thought that finally something needs to be done," Molski said.

Local reaction

Local reactions to Molski's efforts have been mixed.

"I guess the way that he's doing it leaves a bad taste in your mouth but I have to applaud (his efforts)," said Jo Black, executive director of the Independent Living Resource Center, which has offices throughout the Tri-counties.

"The end result is more people are going to get to taste the wines in Santa Barbara County."

Bill Thompson, an engineering manager at Quintron Systems, Inc., in Santa Maria who uses a wheelchair, has a different view.

"I think that's tornado-chasing and I think he's helping his own pocketbook and he's being selfish," Thompson said. "If he was doing that and donating the money to charity that would be another thing."

Thompson also noted that local businesses are more than happy to help when accessibility is a problem.

But Molski says that's not good enough.

"It's as if they think that, well, if someone has a problem, they'll let me know and I'll assist them. This whole idea of paternalism."

The more people who sue, the better things will be for the disabled community, said Molski.

What's a business to do?

"The problem is that the county ... comes in and okays what you've done and that really doesn't mean a darn thing because it's a state and a federal law," said West.

In fact, there is no regulatory agency that ensures compliance with ADA rules, explained Mike Zimmer, building official for Santa Barbara County.

The county checks that all new or remodeled buildings meet current California standards, but it does not monitor ADA compliance, which applies to all buildings where the public meets no matter when they were constructed.

So what can such businesses do to protect themselves from litigation?

"That's the $6 million question... How do you protect yourself not only from Jarek Molski and George Louie, but those like them that can come after?" Lee said.

The business community has lobbied for legislation to help protect them. One approach focuses on an ADA compliance-certification process that would allow establishments some rights that could help them defend against such suits. A second would provide businesses with notice before a plaintiff could sue.

However, no such bills have passed.

"It's difficult to find a legislator who will stake his or her career on what be seen as a diminishment of rights for the disabled," Lee said.

"Both the civil rights community and the business community acknowledge that there's massive noncompliance," said Assemblywoman Hannah Beth Jackson, D-Santa Barbara.

"The ADA laws have been in effect since 1990," while state civil rights laws - which allow for monetary damages for violations of rights - have been in effect for 30 years, Jackson said.

"It's not hard to conclude that too many businesses - not all - but too many, have not made an affirmative effort to avoid these violations," she said.

Jackson voted for a new law that sets up an ADA-specialist certification process - for professionals who can check that buildings are in compliance - and believes that it should give businesses some recourse against suits.

Assemblyman Abel Maldonado, R-Santa Maria, voted against the bill, which also created penalties local government can assess on businesses for violations.

"Bottom line, we need to be up to date with (the American With Disabilities Act)," Maldonado said. "However, what I'm looking for is access, not lawsuits. I prefer giving businesses a reasonable time to comply."

"There has been some discussion of trying to put something in the law that says that notice is required, 30 days to repair or fix," Jackson said. "It's something worth considering."

Molski recommends businesses simply use the Internet or buy a book to make sure they are in compliance.

Lee suggests businesses hire an ADA consultant to point out any areas of non-compliance - then fix the problem areas. A second option is partnering with local disability advocacy groups to ask what they think needs to change.

However, Lee admits that even that solution does not provide immunity against future suits:

"I can tell you that we are aware of wineries that have been sued multiple times. Even after their first lawsuit they felt they were in compliance. They will still settle again and again because to many of the wineries, this is simply the cost of doing business."

Staff writer Erin Carlyle can be reached at 739-2218 or by e-mail at ecarlyle@pulitzer.net.