Rolling Thunder

Cable’s restaurant in woodland hills is a comfortable neighborhood coffee shop with a loyal clientele, the type of place where the regulars eat four or five times a week and the waitresses call you “Honey.” Patrons sit at green vinyl booths under faux wood beams that give the restaurant a kitschy ambience. The $7.95 fried chicken special is the signature dish on the multi-page menu.

On a recent morning, the patrons included a man with an oxygen tank. When a woman in a wheelchair arrived with an attendant, the restaurant manager opened the door for them. “We get handicapped people here all the time,” said the owner, Tony Dalkas. “If they have any complaints, they just let the manager know.”

In January 2003, Jarek Molski visited Cable’s. A paraplegic since a motorcycle accident in 1988, when he was 18, he lives just a few miles from the restaurant. He didn’t leave a satisfied customer. Cable’s, he alleged in a lawsuit filed in July 2003, had discriminated against him under the Americans With Disabilities Act. Among the alleged transgressions, its men’s room door required more than five pounds of pressure to open, the paper towel dispenser in the restroom was higher than 40 inches and the height of the toilet seat was not between 17 inches and 19 inches.

Dalkas, who styles his gray hair in a pompadour and has owned Cable’s for 29 years, describes being sued as a “nightmare”--a description much like those offered by proprietors of the many other establishments that Molski has similarly sued. The ADA, Dalkas insists, was “not intended to be used the way Molski is using it.”

The Polish-born Molski, now 35, is a self-appointed enforcer of the 15-year-old law--or, as he prefers to call himself, “The Sheriff.” What may seem technical arcana to some are civil rights violations to him. “It’s almost as if I was an African American and they said, ‘You know what? This place is not for individuals like yourself,’ ” he told KCBS-TV Channel 2 last year.

Since early 2003, Molski has filed more than 350 lawsuits against restaurants, wineries, bowling alleys, banks and assorted retail establishments that he alleges have failed to remove barriers to disabled access as required by federal law. A large number of the cases come from his trips to California’s Central Coast, with businesses in just about every community from Camarillo to Carmel being affected. After visiting sleepy Morro Bay in spring 2004, for example, he sued a dozen restaurants ranging from fish houses to the Foster’s Freeze, as well as the local Chevron station.

Outspoken Venice civil rights lawyer Stephen Yagman, a recent addition to Molski’s legal team, believes Molski has “done something extraordinary. . . . You have a private individual increasing compliance with laws that benefit disabled people. Violations of the ADA have been corrected” as a result of Molski’s efforts, he says.

Business owners, their lawyers and government officials claim that Molski is running an extraordinary scam, using strong-arm legal tactics to pressure businesses into paying him off. According to attorneys for businesses sued by Molski, he has pocketed an average of $4,000 a case from settlements, often from insurance companies looking for the cheapest resolution. At least 55% of Molski’s cases have been settled, and extrapolating from those numbers, Molski would have had a total income since 2003 of $770,000--not bad for someone without a job.

“It’s a cottage industry,” says Craig N. Beardsley, a Bakersfield attorney who represents Cable’s.

In December, a senior federal judge in Los Angeles apparently vindicated the critics. Granting a motion filed by a Solvang restaurant, Edward Rafeedie ruled that Molski is a “vexatious litigant,” the polite legal term for a pest, whose suits “were filed as part of a scheme of systematic extortion, designed to harass and intimidate business owners into agreeing to cash settlements.” The ruling means that a judge will vet any future federal cases that Molski wishes to file in Los Angeles. Molski’s lead attorney, Thomas E. Frankovich of San Francisco, will appeal. “If it’s extortion to compel people to follow the law, that’s exactly the way the law is written,” he insists.

But Molski, who had largely been operating in the shadows, now has to cope with the glare of publicity, the growing defiance of defendants and even the hostility of other members of the disabled community. “The Sheriff” has become an unwanted man. Said a disabled Central Coast resident at a meeting of the Morro Bay City Council: “This guy is doing more damage for the handicapped than he’s doing good.”

Republican presidents normally aren’t associated with civil rights legislation, but it was George H.W. Bush who signed what has been called the “Emancipation Proclamation” for the disabled. “This act is powerful in its simplicity,” he said at the signing ceremony in 1990. “It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”

Title III of the Americans With Disabilities Act defines discrimination as any failure by a business to “remove architectural barriers . . . where such removal is readily achievable.” By “readily achievable,” the law means “easily accomplishable and able to be carried out without much difficulty or expense.” A disabled person denied access to a business can sue in federal court for an injunction that would include an order to correct violations. The plaintiff’s attorney, moreover, would be entitled to an award of the fees.

But business owners soon were complaining that things weren’t as simple as the president advertised. The bureaucratic regulations developed to accompany the law included voluminous accessibility guidelines that were enough to make anyone’s head spin. How did you judge whether it was too difficult or expensive for the removal of a barrier to be readily achievable? Putting up a sign [indicating the business is accessible to the disabled] was one thing, but how about remodeling a restroom?

The law also opened up new horizons for plaintiffs’ lawyers. One practitioner in Hawaii, Ted Omholt, filed more than 500 lawsuits against shops and restaurants on behalf of his octogenarian mother-in-law. According to the National Law Journal, Miami attorney John Mallah sued more than 700 businesses, typically settling for $3,000 to $5,000 in fees. Elsewhere in Florida, Robert Bogdan reportedly recruited a neighbor--a disabled 12-year-old girl--as a client in ADA cases.

In California, plaintiffs can piggyback discrimination claims under the state’s Unruh Act on top of an ADA suit. The Unruh Act provides damages of at least $4,000 per violation, significantly increasing the potential upside for the plaintiff--and downside for the defendant--if the case goes to trial.

The lineup of serial ADA plaintiffs in California includes Kornel Botosan, who was active in the 1990s, and George Louie of Sacramento, who even sued one of his own lawyers for having an inaccessible office restroom. Another regular in the courts, Diane zum Brunnen, famously took on Clint Eastwood and his Carmel Mission Ranch Inn, but a jury rejected her claims in 2000. Together, they are an army of the aggrieved.

The disabled have to cope with the trauma of their condition and a daily existence of physical challenges. Patrick Connally, an activist and co-founder of Disability Rights Enforcement Education Services in San Francisco, speaks of the psychological burden of being viewed as a “pity object” by the able-bodied. “There’s a whole charity industry that feeds on that,” he complains. What the disabled really want, he says, is independence and respect.

As another client of Frankovich, Connally filed several suits to force businesses in the Marin County city of Tiburon to accommodate the disabled. He has only admiration for Molski’s legal efforts. “I compare it to what Rosa Parks did” for African Americans, he says. “Enough is enough.” Kim Blackseth, an Oakland resident and quadriplegic who consults with businesses on ADA compliance, says anger is “a piece of the pie” for the disabled. “It’s one of the steps of grieving you go through.”

Molski experienced trauma even before his disabling accident. Born in the Polish city of Lodz, he was only 7 or 8 years old when his parents split up and his mother immigrated to the United States. A few years later, his father also left for the U.S., leaving Molski to live with his maternal grandparents. He and his grandmother eventually followed the same migration route, settling in Woodland Hills.

After graduating from El Camino Real High School, he was riding his motorcycle on Interstate 5 in Fresno County in 1988 when he collided with a tractor-trailer. The accident left him paralyzed from the chest down. During the four months he was in the hospital, surgeons attached an aluminum rod to his spinal cord. By any measure, though, he seems to have adjusted to life as a paraplegic, compiling an academic resume that includes bachelor of science degrees in finance and accounting from USC, two master’s degrees and a law degree.

He’s a cherubic-looking man, with bushy eyebrows and a receding hairline. He lives in a single-family home on a cul-de-sac, its facade a mixture of brick and lime-green stucco, the frontyard a patch of dirt, a Mitsubishi Eclipse in the driveway. He met his girlfriend, Brygyda, on the Internet in 1998, and she moved from Chicago to be with him, even changing her last name to Molski although they’re not married. After consulting with Frankovich, he declined to be interviewed for this article. But in court testimony, he has demonstrated a healthy ego and a fierce desire to be empowered, not pitied.

“I consider myself to be a very active person,” he says in a January court declaration that reads like a manifesto. “When it comes to traveling and driving about, I am an exceptional person.” He once drove the 2,100 miles from Los Angeles to the Caribbean resort of Cancun, Mexico, in three days. He refers to his “overall drive for life” and his need--considering the reduced life expectancy of the severely disabled--”to live my relatively short life and that is what I attempt to do independently as best as I can.”

Molski also graphically describes in the declaration the anguish of searching for an accessible bathroom during a visit to Grauman’s Chinese Theatre in Hollywood to see “Star Wars.” By the time he wheeled himself up an attachable ramp and into a portable stall, “I had my bowel movement in my pants and underwear.” Still, he loves to travel and often eats out three times a day. “I do not feel that I should change my lifestyle,” he declares. “That is who I am.”

In 2002, he passed the Washington state bar exam. He has never worked as an attorney, although he is qualified to practice tax law in California. But Molski has pursued a legal career of sorts--as perhaps the most dedicated, resourceful and aggressive of ADA plaintiffs. “He’s somebody who’s an idealist,” Connally says. “He wants the same things everybody else has.”

One of Molski’s earliest disputes over access was with members of his family. During a visit to the West Hills home of his uncle in 1996, he began discussing accommodations for his wheelchair. “There were numerous barriers and the discussion got very heated,” he said several years later in an unrelated deposition. Molski’s step-aunt Aurea Mendez and her daughter Candy went to court for restraining orders against him. Molski “has become a very bitter, angry person, making him very unstable,” Candy alleged in a court document. For his part, Molski accused Candy of beating him until “I fell out of my wheelchair.”

One attorney believes Molski’s anger may be all-consuming. “He’s in a wheelchair,” says Jon David Cantor of Agoura, who as counsel for a Paso Robles winery questioned him at length in a deposition. “He’s angry about that, he’s angry about his life.”

While studying law at the University of San Diego, Molski rented an apartment in the city that was not wheelchair-accessible. The owners, he says, refused to accommodate him. “As a direct result of [their] discrimination,” according to the recent court declaration, he moved back to Woodland Hills and commuted for three years to San Diego, a round-trip of more than 250 miles. “I naively believed that by the time I graduated, all or virtually all places of public accommodation in California would be accessible,” he said.

Molski filed a few cases, mostly against banks in the Los Angeles area, in 2001 and 2002. Then he hired a new lawyer. Frankovich, a husky, pony-tailed man who favors cowboy dress in the courtroom, had represented several other ADA plaintiffs since 1996. The first Molski case he handled in Southern California was against a Canoga Park restaurant in February 2003.

From there, not a month passed without Molski suing a business, the pace really picking up after he began going on trips to the Central Coast with Brygyda or his grandmother in tow. Between August and September 2003 alone, he sued a dozen Paso Robles-area wineries. Like some litigious gourmet, he picked off one Central Coast culinary institution after another--the Hitching Post restaurants in both Buellton and Casmalia, McClintock’s in Pismo Beach, A.J. Spurs in Templeton, the Sea Chest in Cambria.

After years in a wheelchair, Molski has developed the arms and shoulders of a bodybuilder. But to read his complaints, field trips are an exercise in torturous tourism. On a routinely busy day, he could sustain similar injuries four or five times, a push on a restroom door hurting his shoulder, a winery’s tasting counter placed too high causing him to spill wine, a landing on a hard toilet seat bruising his buttocks. In a letter to Cable’s, his attorneys said he suffered “muscle strain, trauma and pain” while transferring between the toilet and his wheelchair without the aid of grab bars.

Team Molski, complete with an ADA consultant who inspects properties and a contractor who fixes violations, became a litigation machine, well-oiled by the cash from dozens of settlements. “We do not want to see [the defendant] waste its money on needless litigation,” Frankovich would say in his standard “friendly advice” letter to defendants recommending an early settlement. Those who “do not consider an early settlement eventually face the hard reality that the remedial work will have to be done, compensatory damages paid and that attorneys’ fees and costs have risen substantially.”

Defendants accused of dozens of violations could face more than $100,000 in Unruh Act damages, and after only a few months of pretrial litigation, more than $25,000 in Frankovich’s fees. Molski filed most of his cases in the vast federal court district that stretches from Orange County to Monterey County--an expensive proposition for a Central Coast business owner who might have to pay a local attorney to travel to Los Angeles for court hearings. A settlement of Molski’s claims, for perhaps less than $20,000, was an offer that a typical small-town restaurant could not afford to refuse.

Some of Molski’s critics contend that he should give businesses a notice of violations and only sue if no corrective action is taken. Frankovich brusquely rejects that idea, saying, “The only way they do it is when they get sued.” The attorney fees, he says, mount up when businesses “want to be stupid and not pay attention to the letter I send them. They bring it on themselves.”

There’s some evidence to support that claim. The San Francisco Small Business Commission, which conducted an extensive outreach to businesses to facilitate ADA compliance, recently found that small businesses “appear unwilling to act in the absence of a ‘hammer’ such as litigation or fines,” preferring a “wait until I am sued” approach. It also reported, however, “genuine confusion” about obligations under the ADA.

Last year, Molski filed almost twice as many suits as he had in 2003. But on the Central Coast, he attacked the tourism industry, the backbone of the local economy. His Morro Bay blitz covered about a third of the city’s restaurants, excluding fast food, from the Whale’s Tail and the Great American Fish Co. to Margie’s Diner and Carla’s Country Kitchen. “We started getting harassed to the point that we asked what we could do about the situation,” recalls Kim Kimball, executive director of the Morro Bay Chamber of Commerce.

Morro Bay Mayor Bill Yates put Molski on the City Council agenda in September 2004, and about 200 people showed up for the meeting at the Veterans Memorial Building. “We have to stop it now,” said a restaurant owner who hadn’t even been sued. “Take our profits for a day and fight him.” As part of the anti-Molski fight, the Chamber of Commerce agreed to lobby state legislators to reform the Unruh Act.

Back in Woodland Hills, Tony Dalkas of Cable’s had not settled. In fact, he had become the first defendant to take Molski to trial in Los Angeles federal court. “They had dropped their [settlement] demand to $65,000,” he says. “I wouldn’t even dignify it.” On Nov. 18, 2004, the jury resoundingly rejected Molski’s claims, finding Cable’s had not failed to remove any barriers and had not violated the ADA. Another holdout, the owners of the Hitching Post in Casmalia, sent Dalkas a congratulatory bouquet of flowers.

“[Molski] testified as if this was a lone, isolated incident,” Beardsley, Dalkas’ lawyer, says. “Why not say what the truth is? The truth is Mr. Molski makes money on this. It’s a business.”

Less than a month later, in the same courthouse, Judge Rafeedie brought his judicial hammer down on the whole operation. In declaring Molski a vexatious litigant, he said his claims of physical and emotional injuries “defy belief and common sense” and compared him to lawyers at the Trevor Law Group who resigned from the bar in 2003 after being accused of misusing California’s Unfair Business Practices law to shake down businesses.

“It is not beyond belief,” he concluded, “that the actions of Molski, and others like him, pose a similar threat to the ADA.”

recently, disabled access consultant kim blackseth made a trip to the Central Coast. Businesses there have hired him to help bring their premises into compliance with the ADA--which suggests that Molski really has done some good. “He’s brought a lot of access to California,” Blackseth says. “No one can deny access has been achieved.”

But while Blackseth was surveying a client’s property in a Los Osos shopping center, three people accosted him. “They threw my papers on the ground,” he recalls. “They thought I was Molski.” He tried to explain what he was doing, but “they said, ‘We don’t care.’ They were so upset.” Such encounters, he says, have become routine, with one man in a Gilroy bowling center telling him, “You should be ashamed. Disabled people should be ashamed.” Other disabled people say they have gotten the evil eye when they visit restaurants in Central Coast towns.

“Is there a backlash?” Blackseth asks. “Absolutely, there’s a backlash. . . . It hurts, it really hurts.”

Molski even surfaced in the Michael Jackson child molestation trial in the Central Coast town of Santa Maria. One of the jurors, a man who uses a wheelchair, said during jury selection that Molski’s claims make the disabled look bad.

In Sacramento, meanwhile, Assemblyman Tim Leslie (R-Tahoe City) introduced a bill that precludes disabled people from suing for Unruh Act damages if the architectural barrier had “no significant impact” on their access to goods or services. “Right now, it’s $4,000 if there’s a sign missing,” Blackseth says. The bill was shelved after running into opposition from disabled rights groups. But Leslie aide Kevin O’Neill says the assemblyman still wants to do something “to increase ADA compliance and decrease lawsuits.”

Frankovich says the disabled shouldn’t worry about a backlash. “These people should be standing up for their rights instead of talking this nonsense,” he snaps. His legal team--which now includes Professor Erwin Chemerinsky, a constitutional law expert and former USC law professor--is working on an appeal of Rafeedie’s vexatious litigant order. “This judge is trying to bar the door to the federal courthouse,” complains Stephen Yagman, another member of the legal team.

Rafeedie vented more of his wrath in March. Molski and his lawyers “have participated in a pattern of abusive litigation, bordering on extortionate shysterism,” he said in another ruling. But a federal judge who sits in San Francisco was more sympathetic, and in April denied a vexatious litigant motion against Molski.

“Molski provides a reasonable explanation for the number of injuries he suffers,” said Magistrate Judge Patricia V. Trumbull, concluding that his “ADA claims do not lack a basis in fact or law.”

So the battle continues. “If he wants to be ‘The Sheriff,’ that’s his right,” Frankovich says, adding that Molski will only be satisfied “when there’s nothing to be done out there.” A lot of defendants now are “digging in,” he admits, but he and Molski aren’t backing down. “It’s going to be like [General George S.] Patton’s race to Germany,” he promises. “We’re going to roll right over them.”

But that continued aggressiveness isn’t likely to win Molski any more friends. “I don’t have a problem with what he’s doing,” Blackseth says. “It’s how he’s doing it.” To recover the $4,000-per-violation damages under the Unruh Act, a disabled person does not need to claim that he or she suffered physical or emotional injuries as a result of the violation. Molski’s injury claims, Blackseth says, only increase the pressure on the business owner to settle quickly. “The message is, ‘We’re not just talking about $4,000 here. It’s real money,’ ” he says.

As he roams the state, leaving a trail of lawsuits in his wake, Molski has turned into a textbook case of how, in today’s litigation-weary, pro-business climate, anger is not enough to make a civil rights activist righteous. “Any sense of compassion [for him] has been used up,” says Jon David Cantor, the attorney for Arciero Estate Winery, one of the Paso Robles wineries Molski sued. And Rafeedie--a judge in the same courts that opened the courthouse doors to civil rights plaintiffs--can call the wheelchair-bound Molski a “hit-and-run plaintiff” without any sense of irony.