Molski and the Ninth Circuit

I've written about Jarek Molski before. He's the paraplegic Californian who has sued hundreds of businesses for Title III ADA violations (public accommodations access). Under the California Unruh Act, which is a state civil rights law, he has also sued for damages -- something the ADA won't allow but that defendants like Clint Eastwood have in the past claimed of the ADA.

Molski is known as a serial litigant, and last week the Ninth Circuit reversed Molski v. M.J. Cable, Inc. in his favor. Sam Bagenstos of Disability Law blog was cited in the opinion and describes the case and outcome:

The case the court decided today, Molski v. M.J. Cable, Inc., involved Molski's suit under the ADA and California's Unruh Civil Rights Act against a restaurant in Woodland Hills. The evidence at trial made clear that the restaurant was inaccessible in violation of Title III of the ADA, but the jury found no violation. Rejecting a motion for a new trial, the district judge concluded that the jury could have properly found that Molski was not an "individual" entitled to protection under the ADA but instead was a business (who makes money bringing accessibility suits).

In today's opinion by Judge Ferguson, the Ninth Circuit reversed. The court concluded that the evidence compelled a finding that the restaurant violated the ADA. As for the notion that Molski wasn't an "individual," the court found no basis in the statute for that reading.

The opinion, available as .pdf file here, is interesting reading for a number of reasons.

First, it rejects the defendant's claim that Molski is a "business" and not an "individual" with standing under the ADA because of his history of ADA litigation and the money he has been awarded through the damages provided by the Unruh Act. Not only that, the opinion interprets the ADA as not requiring a disabled individual to be an actual client or customer to have standing under the ADA's Title III since choice among businesses, whether a person uses a business or not, is part of the law's intent.

This is an important point because it means, for one thing, that an individual with future hopes of using a business has legal recourse to work toward that day. Imagine, for example, not physically being able to enter and become a customer, but being denied standing because of that lack of access. Or imagine some large event like a family wedding or political convention with an upcoming date when disabled people want to be present. The Ninth Circuit's opinion seems to account for those sort of situations.

Second, there's some gratifying crip awareness to the opinion illustrated particularly in the eighth footnote, which notes the ableism of the defendant's argument:

The defendant’s analogy that “[Molski] was no more a customer at [Cable’s] on that day than he would be had he been sitting at the counter waiting for the restaurant’s cashier to turn his or her back so [Molski] could steal the money from the cash register” is simply wrong, not to mention puzzlingly insensitive in its imagery, given that Molski is confined to a wheelchair.

I can forgive the "confined to a wheelchair" perspective given there's recognition that the defendant in court refused to really assess or give credibility to what the plaintiff's accessibility needs might actually be.

The third thing that interests me is the opinion's description of the inaccessibility Molski experienced at the defendant's restaurant. Remember, Molski has been vilified for being a "vexatious litigant" and the ADA attacked routinely in the media because of serial litigants like him. Here's the description:

Upon entering the restroom, Molski noticed numerous architectural barriers to his accessing the facilities. The door pressure on the bathroom door was too heavy, and the door lacked a handicap accessible sign. Inside, the stall doors could not close with Molski’s wheelchair in the stall. The stall lacked grab bars on both the rear wall and side wall, which prevented Molski from maneuvering from his wheelchair to the toilet. The toilet seat cover dispenser was unreachable. The pipes underneath the sink were not insulated, and therefore, according to Molski, posed a special risk to those without feeling in their legs, as hot pipes could burn them without their realization. The sink also lacked levered hardware, a type of fixture that is easily moveable without strong grip strength. Molski was unable to reach at least one of the paper towel dispensers. Molski testified that the hygienic violations were especially important in his case because, due to his chest-down paralysis, he uses a catheter and a urine bag that must be emptied frequently. He explained that failure to empty the urine bag can cause autonomic dysreflexia, a condition that can result in whole body spasms and even cardiac arrest. Handling the bag with unwashed hands can also lead to bladder infections.

With the exceptions that I don't have any urine bag to empty and rarely even see a toilet cover dispenser anywhere, this description describes just about every inaccessible restroom I have ever been in -- and found I literally could not use. I want to go through it line-by-line.

The heavy door. Most restroom doors push inward, which means that a heavy door that requires one to pull toward them to open and exit the room is almost impossible for someone on wheels or on crutches, particularly given the cramped architecture of most restroom entrances. Yes. I have been trapped in public restrooms with heavy doors, unable to exit and unsure if anybody would find me there for hours.

The stall door would not close with Molski and his chair inside it. For many women I know, this is a security issue as well as a matter of equal access. Besides, usually leaving the door open while transferring and peeing means that you face the public mirror and everyone who enters and leaves the restroom (and sometimes those in the hall just outside) cannot help but look at you while you use the toilet.

The stall lacked grab bars. This is the main problem that would make this restroom completely unusable for me. This is the reason why, hundreds of times, I have left a business I have already spent money at to go look desperately for somewhere else to pee.

The exposed pipes under the sink. Insulation of exposed pipes prevents legs from being burned by hot water. Since I haven't used a manual much in the past decade and my scooter pulls alongside rather than up and underneath the sink, this isn't a special problem for me now, but it used to be an issue of serious safety when I did.

The sink lacked lever hardware. This makes a sink completely unusable for many of us.

No towel dispenser was reachable. This is especially a problem where sinks are part of vanity-type counters because those counters are almost always covered with water from previous sloppy users. If I can't reach the towels, I can't use the sink from my seated position without soaking my arms and the front of my top with someone else's used water. This is gross and unsanitary and requires me to choose between washing my own hands or keeping my top clean and dry.

The defendant didn't dispute any of these violations Molski listed. In fact, Anthony Dalkas, the vice president of the company owning the restaurant, testified that they hadn't addressed these access issues because they hadn't been required to (italics mine):

In his testimony, Dalkas acknowledged that the company had not attempted to identify barriers to the disabled. He admitted that Cable’s had not made the renovations because “[w]e weren’t compelled to do it.” Dalkas testified that Cable’s could afford each of the repairs but stated, “once you start down that path[,] you’re opening a can of worms that will cost a lot of money.”

I stand by what I said two years ago about ADA compliance and serial litigants like Molski:

...15 years on the books hasn't been enough to encourage thousands upon thousands of businesses nationwide to install even simple ramps. Like any law, the ADA and other disability nondiscrimination statutes can surely be abused, but I have a difficult time finding sympathy for inaccessible businesses I could never patronize that gripe about complying with a law passed in 1990.... Like other mobility-impaired individuals, when I consider going somewhere new -- when friends or family discuss a social outing with me -- the first consideration we must have is whether or not the place we wish to go is accessible. If it complies with the law. As often as not, we must alter our plans. If I decided to sue every business I came across that was truly violating the law just by failing to give me entrance into their front door (never mind restroom accessibility, which is equally important, really), I would not have to exert myself to become a serial plaintiff too. Noncompliance is everywhere.