By Stephanie Tavares / Staff Writer

It's every small business owner's worst nightmare: Out of the blue you get a letter from an attorney saying if you don't cough up — say, $4,000 — you're going to get sued for tens of thousands of dollars for violating the Americans with Disabilities Act.

Maybe you thought your building was in full compliance with the law. If it's a new building or you haven't done any renovations, you should be fine, right?

Probably not. All it takes is a hand rail that's two inches too low, a doorway two inches too narrow and an unsympathetic customer and you've got a lawsuit on your hands. The unfortunate way that this statute has been applied is that even for very minor violations, they can collect attorneys' fees and benefits, said attorney Anthony Hall of Hale Lane law firm.

"(Businesses) can pay $50,000 for something that could have cost a couple hundred dollars to fix," he said. California plaintiff Jarek Molski is known for filing hundreds of such claims. One of his latest suits, Molski v. Mandarin Touch Restaurant, is now in front of the U.S. 9th Circuit Court of Appeals and is being closely watched by business advocates and attorneys across the nation.

Molski claims he injured his hand while trying to use the restaurant's bathroom. He made identical injury claims against 13 other restaurants he visited within four days of visiting Mandarin Touch Restaurant in May 2003.

The owners of Mandarin Touch Restaurant, based in Solvang, Calif., aren't just fighting the suit, they're fighting Molski's right to file it.

After learning they were being sued by Moslki — who has made more than 300 similar complaints — the owners filed a motion with the court to have him declared a vexatious litigant and challenging his right to bring suit. Molski has been banned from filing further ADA claims without the consent of the court.

The 9th Circuit is expected to rule on whether or not the previous court is allowed to do that and if Molski had any business suing these people in the first place. He lived more than 100 miles from the restaurant and only went there once. He has been accused of visiting businesses and filing ADA claims for the sole purpose of getting money.

The 9th Circuit is expected to address whether a person has standing to file suit if they only went to the business for the purpose of enriching themselves. "The courts are all over the map on whether the claimant has standing," Hall said. "The battlefield and a big issue of concern for people who deal with this issue is whether there are going to be rulings that will give us an answer and appropriately define the standing."

If the 9th Circuit throws out Molski's case, it could mean added protection for small businesses who have almost no defense against these serial plaintiffs who file suits which often lead to only limited improvement in business accessibility.

But it's not just businesses that are getting hurt. Activists for people with disabilities say that sometimes these lawsuits hurt more than they help.

"There are these individuals and boutique law firms that make a business out of filing 75 claims at a time and it leads to a strong backlash against the ADA and it can do harm to the cause of increasing access for those with disabilities," said Andrew Imparato, president of the American Association of People with Disabilities. "The point of this law is not to shake-down businesses and make money off them. The point is to improve accessibility."

Imparato said the best thing businesses can do to comply with the Americans with Disabilities Act is to start a dialogue with local disability organizations and independent living centers. Hall suggested putting out a suggestion box so customers can alert you to problem areas. There are companies and organizations that do inspections but some of them are not well-trained and all of them are hard to find — none for Las Vegas turned up in a search of the phone book and the Internet. Business owners can also find an ADA compliance tip sheet at www.restaurant.org/legal/law_ada.cfm.

By reaching out to locals with disabilities, you not only help protect yourself from lawsuits, but you can improve access to your business leading to increased sales. According to the U.S. Department of Labor, people with disabilities have about $175 billion in discretionary funds and they spend about $13.6 billion on travel, according to a New York Times study. But people with disabilities can't spend money at your business if they can't get in the door and they won't make repeat customers if they can't use the restroom.

To quote the U.S. Department of Justice, "compliance with the Americans with Disabilities Act makes good business sense." Stephanie Tavares covers small business and law for In Business Las Vegas and its sister publication, the Las Vegas Sun. She can be reached at (702) 259-4059 or by email at stephanie.tavares@lasvegassun.com.