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By filing hundreds of lawsuits against businesses that fail to accommodate the disabled, some say Jarek Molski went too far. But the self-styled civil rights activist found a friendlier audience at the Ninth Circuit U.S. Court of Appeals. A few years ago, a jury came down against Molski in a disability-access trial despite the fact that, at least in the Ninth Circuit’s eyes, he had undisputed evidence on his side. A district judge should have known better than to let that verdict stand, the unanimous panel concluded Friday. Cable’s Restaurant, defended by Bakersfield attorney Craig Beardsley, argued that Molski had brought so many ADA suits that he should be considered a business, not an individual. Thus, the defense argued that he was not qualified to collect damages under the Unruh Civil Rights Act. Molski, who has used a wheelchair since he was paralyzed in a motorcycle accident at age 18, sues businesses for allegedly violating the Americans With Disabilities Act. Under the state’s Unruh act, he can collect $4,000 for ADA violations ranging from a simple failure to post handicap-accessible signs on bathroom doors to more serious problems that make facilities totally inaccessible to disabled customers. To win his case, Molski had to show that there were accessibility problems and that the restaurant could have readily resolved those issues but failed to do so. In 2003, while visiting Cable’s in Woodland Hills with his grandmother, Molski claimed he found a laundry list of ADA violations. At trial, Vice President Anthony Dalkas flatly admitted that Cable’s hadn’t tried to identify barriers, such as a heavy bathroom door, and had not made even basic, inexpensive renovations. “Once you start down that path, you’re opening a can of worms that will cost a lot of money,” Dalkas said, according to Friday’s ruling. According to the Ninth Circuit, the defense strategy was to discredit Molski by arguing that he had an ulterior motive for suing Cable’s � namely, to make money. On the witness stand, Molski acknowledged filing at least 374 similar ADA suits. He also conceded that his lawyer, Thomas Frankovich of San Francisco, helped him file 232 of those. The Ninth Circuit said that when jurors returned a defense verdict that said Cable’s had not failed to identify and remove architectural barriers, they overlooked the weight of the evidence. Senior U.S. District Judge Dickran Tevrizian Jr. then denied Molski’s request for a new trial, a decision the Ninth Circuit called “unreasonable and legally flawed.” “Neither the District Court nor the defendant provide any support for concluding that a person may be considered a business and not an individual because of a history of litigiousness,” Senior Circuit Judge Warren Ferguson wrote in Friday’s published opinion. While pointing out in a footnote that the minutiae in ADA guidelines are important but have been described as “mind-numbingly boring,” the Ninth Circuit said there was no dispute that Cable’s had violated them. “The only issue about which there was any disagreement was whether or not the removal of the [access] barriers was ‘readily achievable,’” and the evidence said it was, Ferguson wrote.
‘Neither the District Court nor the defendant provide any support for concluding that a person may be considered a business and not an individual because of a history of litigiousness.’

Senior Ninth Circuit Judge Warren Ferguson

Beardsley, a partner at Jones & Beardsley, claimed Molski was no more a customer at Cable’s than a thief would be if he’d been sitting at the counter while waiting to snatch money from the cash register. But that argument backfired with Ferguson. The appellate judge wrote in a footnote, “The defendant’s analogy � is simply wrong, not to mention puzzlingly insensitive in its imagery, given that Molski is confined to a wheelchair.” In addition to remanding the case for a new trial, the Ninth Circuit awarded costs on appeal to Molski. “The pendulum is swinging back in favor of the disabled community,” said Frankovich. Following Friday’s opinion in Molski v. M.J. Cable Inc., 07 C.D.O.S. 3058, Beardsley maintained his argument that Molski should not qualify to collect damages. “Was he there for the purpose of having a nice lunch, or was the purpose to be conducting a business?”

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