HOW IT STARTED
In March of 2004 we received a phone call from our attorney
notifying us that the Hitching Post Restaurant was being sued by a
disabled man named Jarek Molski. Mr. Molski apparently visited our
restaurant in March of 2003, had drinks and dinner and left without a
word to anyone that he had trouble accessing our facility. His lawsuit
asks for $4000/day since March 2003 until such time as we settle with
him. As of November 15, 2004 that figure is approximately $2.4
MILLION! News flash for Mr. Molski: We’re not settling!
Jarek Molski is 34 years old, was injured at the age of 18 in a motorcycle accident. He has a law degree, but has never practiced as an attorney. This man has over 500 lawsuits filed against businesses in California, mostly small, family owned establishments like the Hitching Post. Most are for frivolous violations of the Americans with Disabilities Act(ADA), such as the toilet being one half inch closer to the wall than it’s supposed to be, a doorway one inch too small or a counter a few inches too high. We are not opposed to businesses making their establishments accessible to the disabled, our own mother has been confined to a wheelchair for many years. We are opposed to people and their lawyers using the ADA laws to make a living off of hard working families providing jobs to fellow Californians.
Mr. Molski has over 500 lawsuits on record. Most settle out of court because of the overwhelming legal costs. On November 18, 2004, Cable's Restaurant in Woodland Hills became the first business to take Mr. Molski to trial and won! This is a great victory, but it never should have gone this far. Cable's won their case, but it cost them many thousand's of dollars to defend against the frivilous charges of Molski.
We spent $60,765.97 defending ourselves against this frivilous lawsuit. After our case was dismissed in federal court his attorney told ours that Mr. Molski planned to file a State ADA claim against us in Santa Barbara County. We recently were informed that in 2006 Mr. Molski did indeed file a lawsuit against us locally. The judge would not hear the case. Finally some sanity! Another local restaurant was not so lucky. The Mandarin Touch in Solvang, CA, whose federal court judge was the one to stop Mr. Molski from filing lawsuits (unless he received permission from a judge), was sued in local court. The judge in their case (Judge Timothy Staffel), for reasons unknown, allowed this case to be heard before a jury in Santa Maria, California in December 2007. Mr. Molski was awarded $5000 plus attorney fees. The owner said he would appeal.
WHAT CAN YOU DO?
will support efforts to change California's law, so a business must be
given notice to make repairs before a lawsuit can be filed. What can
you do? Send, fax or email your city/state/federal politicians that you
want this change in the law. Write letters to the editor of your local
newspapers. We have had many people come into the restaurant and say
they had never been there before and wanted to come in just to support
our efforts. Others have called just to say they were behind us. We say THANK YOU to all of you!
From the local newspaper:
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