About 10 years ago our family restaurant, The Hitching Post was sued by Jarek Molski, regarding ADA compliance, along with 96 other Central Coast businesses, mostly wineries and restaurants. Molski, with his attorney, Thomas Frankovich, had over 400 lawsuits filed in Federal Court, all at the same time. His lawsuit against us asked for over $2 million.
Of course, we could settle out of court for $15,000-$20,000 and he would have just gone away. We fought it. After spending $60,000+, our case was thrown out by a federal judge. The ironic thing about our case was that our Mother was in a wheelchair,and we had made alterations years before to accommodate her and others.
These abusive lawsuits continue to be filed. The tiny, family owned hamburger stand in Santa Maria, Bill's Take Out, a fixture for over 60 years on North Broadway, is the latest target. The attorney Frankovich has found a new litigant to keep the money rolling in (no pun intended). The owner says it will cost him $75,000 to make the corrections the lawsuit claims need to be done. We have seen many businesses close due to being unable to afford the corrective actions on older buildings. Are we going to lose another one?
Additionally, another 10-12 businesses in Atascadero, Morro Bay, Los Osos and Cambria had ADA lawsuits filed against them in San Luis Obispo Court in January 2015.
There are a couple of bills moving through the State legislature, co-authored by both Democrats and Republicans, that have a real possibility of passing. After years of half measures that have not stopped abusive ADA lawsuits, meaningful reform may finally happen. Support for SB 67, AB 54 and AB 52 is imperative at this time.
At a time when small businesses are just seeing the light of day after a brutal recession, these lawsuits can have a devastating impact.
our local elected officials will see the benefit to their constituents
and the local economy, and support this legislation. If just the
businesses who have been sued in the past 10 years, their employees,
suppliers and customers contacted their representatives, this
grassroots effort might just succeed.
URGENT: THE MEMBERS OF THE JUDICIARY COMMITTEE NEED TO BE CONTACTED. HERE ARE THE LINKS:
Senate Judiciary Committee
Assembly Judiciary Committee
TELL THEM PLEASE SUPPORT SB 67, AB 54, AB 52
THE HITCHING POST FIGHTS THE GOOD FIGHT
by Ken McCalip
With attorney in tow in the 1950's the locals succeeded in closing the neighboring Air Rocks Plant that was spewing smoke and ash so thick they had to scrape it off their windshields each morning prior to leaving for work. In 1984 fumes from a neighboring toxic waste dump forced the closure of the school. This set off a six year media, legal, and political battle that eventually led to the closure of the site, a multi-million dollar settlement and a change in the makeup of the Santa Barbara County Board of Supervisors.
Casmalia and small California business are again under attack, but the attackers may have chosen the wrong community. The target this time was the Hitching Post Restaurant the town's main employer. The restaurant owner has vowed to fight.
In 1992 Congress passed the Americans with Disabilities Act which granted equal access for the handicapped. This was a noble effort that we could all support, but the devil is in the details. Most business owners probably knew that it had passed, but most thought it applied to new construction or remodels and not existing commercial buildings. Congress also gave private citizens the right to enforce this new regulation, but unfortunately loopholes and poor writing allow it to be used by the unscrupulous to make millions. Since this applies to all commercial buildings, old and new, this law's improper enforcement could have a devastating effect on small business- the main source of new employment nation wide. The Hitching Post's fight is in fact a battle for all small business owners.
The modus operandi of the group currently abusing the
Americans with Disabilities Act in Southern California indicates they
are after a fast buck rather than gaining equal access for the
handicapped. Even a lowly small claims action in most states requires a
demand be made prior to filling a legal action, but this group makes no
demand that the infraction be corrected-a matter of a 37 cent letter
that would settle most infractions.
Most business owners would gladly correct the defect rather than face legal action. But no, this group of contractors, professional plaintiffs, and attorneys first files action and then offers to settle for $20,000 or $30,000, plus attorney fees. No demand is made, except for an after - the - fact demand for money. Most businesses settle up rather than face the cost of defense. It is estimated that the plaintiff made $3 million in Southern California prior to moving to the Central California Coast to file more than 30 suits. Unfortunately, this has led and will lead to the closing of many small businesses. This is not what Congress intended, nor is it what the public expects from our legal system.
Most of the restaurants these professionals have sued are for one or two inch infractions of the requirements. In other words they are in substantial compliance with the law and have made good faith efforts to meet the mandates of these rules. These minor infractions surely do not warrant $30 thousand in damages.
Congress needs to intervene to stop these legal, but inappropriate ADA actions by requiring plaintiffs to first make demand for correction with an appropriate waiting period for the correction, prior to being allowed, if the demand fails, to bring actions under this law. Until that happens businesses need to fight back and judges and juries need to be wary of the professional hucksters trying to make a fast buck. Luckily, a federal judge has recently agreed that this is inappropriate and has enjoined this group from filing additional suits. Fortunately, for us all we have people with spunky spirits, like the owners of the Hitching Post, willing to stand up for principle and say no, I won't pay!
They should be commended for standing up for their own
rights-and the rights of us all. Additional suits have been enjoined,
but not the Hitching Post's.
Ken McCalip is a native Santa Marian and a retired principal - superintendent who holds bachelor and doctorate degrees in history, cultural geography and law from various California Universities. He can be reached by e-mail at firstname.lastname@example.org