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DOJ

Just When Does the Statute of Limitations BEGIN to Run in ADA Cases

December 14, 2017 by William Goren 7 Comments

I hope everyone is having a happy holiday season. In Atlanta, we got a few inches of snow. So, my daughter was outside playing in the snow and having snowball fights with her friends. She even got in a couple of snowballs thrown at me. The nice thing about it being in Atlanta was that the snow has all melted, and unlike Chicago, our native city, we never have to worry about shoveling it. We are also fortunate with the timing of the snowstorm happening on a Friday and there being a gap in the weather when the snow came through so that people were not stranded.

Turning to the blog, I am hoping that I have now gotten by the absolutely crazy computer issues I have been dealing with. This will be the second to last blog entry of the year with the next one being the top 10+1 or two. As mentioned previously, about that, every year I put up a top 10+1 or two blog entries for the year as determined by your views over that year. It is always a top 10 and depending upon how close the top 10 are to each other may be slightly more. Then, no matter what, I always keep in the ADA audit: higher education version blog entry as I think that is a critical blog entry for those working with or in the college and University communities.

Turning to today’s blog entry, it builds on a previous blog entry discussing just what is the statute of limitations in ADA cases. That blog entry, which can be found here, has consistently been one of my more popular blog entries over the years. However, what that blog entry doesn’t address is when does the statute of limitations BEGIN to run.

The case of the day is Hamer v. City of Trinidad. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Hamer is a resident of the City of Trinidad Colorado and is confined to a motorized wheelchair. As a result, he does not drive or utilize public transportation, rather his primary means of public transportation are the city’s public sidewalks. The city has approximately 154 miles of sidewalks and 1300 curb cuts. In April 2014, he attended a city council meeting where he complained about ADA accessibility throughout the city, and over the next six months, he levied multiple informal grievances at city council meetings. At the time of the decision from the District Court in Colorado, the city had completed several projects aimed at renovating noncompliance sidewalks and curb cuts identified by the plaintiff as well with other compliance projects. In 2014, plaintiff also filed an ADA complaint with the Department of Justice, and at some point following that complaint, the DOJ began an ADA audit of the city. That audit identified at least five newly constructed or altered curb ramps that were noncompliant. In anticipation of the consent decree with the DOJ, the city sought to amass funding for the 2017 city budget of between $500,000-$1,000,000 to address the most critical curb cuts immediately. The city must also set aside $600,000 to mitigate other ADA compliance issues noted by the DOJ. All of this in addition to the $550,000 spent by the city in 2016 to repair major downtown sidewalks and curb cuts as well as $800,000 plan for repairs in 2017. Even so, plaintiff then filed suit on October 12, 2016 seeking declaratory relief as well as compensatory damages and attorneys fees under the ADA. The defendant defended on the grounds that the claims were barred by the statute of limitations and that sidewalks and curb cuts were not a service, program, or activity of the public entity.

II

Court’s Reasoning

The court agreed that the statute of limitations had passed and reasoned as follows:

  1. The court found that the plaintiff’s use of the sidewalks as a means of transportation was sufficient to present an invasion of a legally protected interest that was concrete, particularized, and actual or imminent. Also, there was no dispute that the city’s inaccessible sidewalks and curb cuts were the cause of plaintiff’s injuries and that a favorable decision would redress those injuries. That is, force the city to remediate its noncompliance sidewalks and curb cuts. Accordingly, the plaintiff had standing to proceed with a lawsuit.
  2. With respect to whether sidewalks and curb cuts were a program, activity, or service of a public entity, the court sidestepped that question and chose to focus on the statute of limitations instead. They did note in a footnote that the weight of authority favors a finding that sidewalks and curb cuts are services under title II of the ADA and §504 of the Rehabilitation Act.
  3. With respect to the statute of limitations, the court found that the most analogous statute of limitations in Colorado was a two-year statute of limitations.
  4. Hamer was clearly aware of the ADA and Rehabilitation Act violations throughout the city in April 2014, but failed to bring suit until October, 2016. At the latest, he had knowledge of the exact basis for this lawsuit on April 29, 2014, which was the date he filed his complaint with DOJ.
  5. Plaintiff’s argument that a continuing violation was occurring because many of the problems were not fixed was not persuasive. Continuing violations is a concept more commonly seen in employment matters rather than anywhere else. In those cases, there are a series of separate acts collectively constituting one unlawful employment practice so that the discriminatory conduct cannot be said to occur on any particular day. If that isn’t the case, discrete discriminatory acts each start their own statute of limitation clock for purposes of filing a timely suit.
  6. The 10th Circuit has rejected the continuing violation theory with respect to civil rights claims arising under §1981, and it has never formally adopted that doctrine for §1983 actions either.
  7. The court did note that both the Ninth and Seventh circuits as well as some District Courts have applied the continuing violation theory to title II actions, but the court was not having any of it based on the circumstances of this particular case.
  8. The continuing violation theory is triggered by continual unlawful acts not by continual ill effects from the original violation.
  9. The construction and alleged lack of maintenance of noncompliant sidewalks and curb cuts are discrete acts of discrimination, and any subsequent injury caused by the city’s failure to fix those issues are the continual ill effects of the original violation. The court cited several decisions to back up that point of view. All of those decisions look to whether the condition partook of permanence and therefore triggered an awareness on the part of a qualified plaintiff denied access that he or she should assert his rights.
  10. While state law governs what statute of limitation period exists, federal common law decides when the statute of limitation begins to run. The federal common law rule is that the statute of limitation begins to run when a plaintiff discovers, or by the exercise of due diligence would have discovered, that he or she has been injured and who caused the injury. Accordingly, the statute of limitation begins to run the moment the plaintiff knew or should have known that he was being denied the benefits of the city’s newly built or altered sidewalks and curb cuts regardless of when those sidewalks were actually constructed or altered.
  11. Since the continuing violation theory doesn’t work, the plaintiff failed to identify any violations occurring within the applicable two-year statute of limitations. More particularly, the plaintiff’s ADA and Rehabilitation Act claims accrued on April 29, 2014, or, at the very latest, on August 2014, when he again raised concerns at a city council meeting.
  12. It is not sufficient to rely solely on the continued ill effects of the city’s original acts of discrimination in order to satisfy the plaintiff’s burden on summary judgment.
  13. While a report showing that there are several existing problems remaining confirmed the existence of a case and controversy, it doesn’t change the analysis with respect to the discovery rule under the statute of limitations.
  14. The city with its effort to fix things may have mooted many of the complained of allegations regardless of the statute of limitations issue. With respect to those that were not mooted, that alone does not satisfy the plaintiff’s burden of demonstrating with specificity the existence of a disputed fact within the applicable statute of limitations.

III

Takeaways:

  1. This case is very significant. Common sense would dictate that if the violations are still going on, the statute of limitations would continue to run. This is a big issue with respect to architectural accessibility. Instead, this case holds that regardless of whether architectural violations are going on, the statute of limitation begins to run from the moment the plaintiff is aware of the architectural violations. Such a decision forces a plaintiff into continually rechecking whether the architectural violations still exist. Also, even if those architectural violations still exist, if forces the plaintiff to continually look for new and different architectural violations if the statute of limitations is to be extended.
  2. Keep in mind, there is a definite split in the courts on this issue. It is far from certain whether the ultimate result with respect to continuing architectural accessibility violations will come down to application of a strict discovery rule.
  3. A similar problem exists with respect to the statute of limitations in failure to accommodate cases. There, you see the statute of limitations in terms of when it begins to run breaking down along similar lines: a constructive discharge theory; a discrete act theory but one which allows for the possibility that failure to act could extend the statute of limitations (click on the immediate preceding hyperlink for a blog entry of mine discussing both of those approaches); and a strict discovery rule, the same approach as Hamer. With respect to the failure to accommodate statute of limitations accrual question, the cases are very few and far between (the cases seem to be more numerous with respect to title II in general at least from a reading of this court decision), but I would expect a similar split to occur on failure to accommodate statute of limitations accrual questions.
  4. Since title II and title III do not require exhaustion of administrative remedies, if administrative remedies are pursued, it has to be remembered that the clock is still running. Administrative agencies, whether they be OCR or DOJ can take an incredibly long time to figure things out. So, attorneys on both sides need to be very much aware of whether the plaintiff has pursued or is pursuing administrative remedies before filing suit.
  5. The city certainly helped itself by working with the Department of Justice and devoting considerable resources to fix and plan for future fixes with respect to ADA compliance.
  6. A defense that sidewalks and curb cuts are not a program, activity, or service of a public entity is unlikely to be successful.
  7. Standing and statute of limitations accrual questions are distinct issues.
  8. On the statute of limitations question, it might be worth for the plaintiff to appeal since the law is so uncertain. I am aware of the plaintiff’s law firm (many of their cases wind up as blog entries of mine), and so it wouldn’t surprise me at all to see an appeal here.
  9. In most cases, the statute of limitations winds up being two years, but states can vary. Attorneys need to check the case law in your jurisdiction to find out what is the appropriate statute of limitations being used with respect to disability discrimination claims. Also, at this case makes clear, it is a separate question as to when a statute of limitations begins to run versus how long the statute of limitations is.
  10. Continuing violations is a theory very much frowned upon by the federal courts. However, on the plaintiff side, it is certainly worth trying to reframe it as a failure to fix discrete acts rather than a continuing violation and see if the court goes for that. For example, in Keith-Foust, the Middle District of North Carolina suggested that failure to act on a reasonable accommodation request could extend the statute of limitations.

Filed Under: ADA, Title II, Title III Tagged With: §1981, §1983, §504, 10th circuit, accrual of statute of limitations, ADA, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, continued ill effects, Continuing violation, curb cuts, Discovery rule, DOJ, exhaustion of administrative remedies, failure to act, Hamer v. City of Trinidad, keith-foust v. North Carolina Central University, Ninth Circuit, OCR, Pollowitz v. University of Medicine and Dentistry, program activity or service, public entity, rehabilitation act, Seventh Circuit, sidewalks, standing, statute of limitations, statute of limitations begin to run, statute of limitations continuing to run, title II, title III, tolling of statute of limitations

Fair Housing Act, Emotional Support Animals, and Service Dogs: Noncompliance Can Cost You Big Time

August 9, 2017 by William Goren Leave a Comment

I was giving serious consideration to blogging on Stragapede v. City of Evanston, Illinois. After all, it isn’t very far from where I grew up, and I have all kinds of family connections to Northwestern University. So, I spent a lot of time in Evanston, including attending many a Northwestern University athletic event. However, Robin Shea just published an excellent write up of the case, and so I will leave it for her to analyze. It is definitely worth a read and can be found here. That left me with having to blog about something else. Ultimately, I decided to blog about a HUD conciliation agreement under the Fair Housing Act between an individual, the Fair Housing Advocates of Northern California and Schultz Investment Company et. al. Basically, the Respondents ran into problems with respect to emotional support animals/service dogs. Instead of taking it to trial, Respondents entered into a conciliation agreement. I thought it might be worthwhile to go over the terms. The blog entry is divided into terms of the conciliation agreement and takeaways. Since the structure of the blog entry is such and the length is so short, I’m figuring everyone is going to read the whole thing.

I

Highlights of the Conciliation Agreement

  1. The agreement extends for three years.
  2. A total of $71,000 was paid out to two different plaintiffs.
  3. Within 90 days, the Respondents have to create and implement a reasonable accommodation and modification policy consistent with the Joint Statements of HUD and the Department of Justice on Reasonable Accommodations under the Fair Housing Act and Reasonable Modifications under the Fair Housing Act. That statement can be found here. What is curious is that the joint statement, from my read anyway, does not deal with emotional support animals and service dogs at all. Rather, it just deals with general obligations under the ADA and the Fair Housing Act. There is a document from the Housing and Urban Development Department talking about emotional support animal and service dogs that can be found here, and it is surprising that it doesn’t get a mention in the conciliation agreement.
  4. The policy the defendant comes up with has to explicitly acknowledge and advise employees, tenants, and prospective tenants that an emotional support or companion animal qualifies as a reasonable accommodation under the Fair Housing Act.
  5. Reasonable accommodation and reasonable modification requests must be consistently recorded and responded to in a timely manner.
  6. Documentation of requests for reasonable accommodations or modifications will show whether medical verification was necessary or whether the disability was obvious and apparent as well as indicate when the defendant provided a written response to each request.
  7. The policy also will say that reasonable accommodation and modification request can be made orally or in writing and that Respondents have to give appropriate consideration to requests even where the requester does not use the designated form.
  8. The policy will make clear that verification of disability may come from a doctor or other medical professional such as a therapist, physician’s assistant, or nurse, or from a counselor, social worker, peer support group, a non-medical service agency, or a reliable third-party (emphasis added), who is in a position to know about the individual’s disability.
  9. To request an accommodation or modification, the policy will make clear that an individual does not need to mention the Fair Housing Act or use the phrase “reasonable accommodation,” or “reasonable modification.” That is, MAGIC words are not required.
  10. Leases must be redone within 90 days to reflect ¶ ¶ 1-8 above.
  11. Within 90 calendar days, Respondents have to create and implement a form complying with the Fair Housing Act and make that form readily available to all applicants and current and future tenants. That form must be available at all leasing offices, included in application packets, and a copy provided to new tenants along with a copy of the executed lease.
  12. Requests for reasonable accommodations and reasonable modification can be made verbally and the form is not required. However, there needs to be a written record of every request for reasonable accommodations or reasonable modifications.
  13. Respondents agreed to track all requests for reasonable accommodations and/or reasonable modifications in an Excel spreadsheet and furnish that sheet to HUD on annual basis.
  14. Receptionists, all front office staff, property managers, maintenance personnel, staff participating in making decisions on reasonable accommodations and/or reasonable modifications, and all other staff members interacting with tenants and/or applicants have to attend training sessions on fair housing lasting at least three hours at yearly intervals for two years. The first training session to occur within 90 days and the second one to occur by September 30, 2018. If the training is done by someone other than HUD, HUD will have to approve that training.
  15. Respondents have to post HUD’s assistance animal poster at all leasing offices and at all trash/recycling areas. If the posters are removed or vandalized, Respondents have to promptly replace the posters with clean copies.
  16. Respondents have to display the HUD fair housing poster in all leasing offices.
  17. Within 30 days of the effective date of the agreement, Respondents have to inform all of their agents and employees responsible for compliance with the conciliation agreement the terms of the agreement and provide a person with a copy of the agreement.
  18. Respondents agreed to submit to monitoring by HUD.

II

Takeaways

  1. It is really curious why the HUD publication on service animals and assistance animal for people with disabilities in housing and HUD-funded programs does not get a mention. Even so, that is something you definitely want to look at.
  2. Magic words are not required!!!!!!!!!!!
  3. Reasonable accommodations and reasonable modifications under the Fair Housing Act encompass different meanings. Even so, for an attorney familiar with the ADA, that shouldn’t present a problem whatsoever since the term reasonable modifications under title III of the ADA, would encompass both Fair Housing Act terms.
  4. While the Fair Housing Act does allow you to get documentation to determine whether the tenant has a disability, §I8 of this conciliation agreement casts a pretty broad net, much further than the ADA, as to the type of provider that can document the disability.
  5. While Respondents did not admit liability, they did pay out $71,000 not to mention what they paid their attorneys in defending the case to this point.
  6. I find it curious that the conciliation agreement mandates an Excel spreadsheet as one would think that there would be all kinds of possibilities that could be used with respect to dealing with the data associated with reasonable accommodation requests. Regardless, documentation is critical.
  7. Interactive process!!
  8. Did I say MAGIC words not required?
  9. Training is always important.

Filed Under: ADA, Fair Housing Act, Title III Tagged With: ADA, conciliation agreement, Department of Housing and Urban Development, Department of Justice, DOJ, emotional support animal, fair housing act, fair housing advocates of northern California v. Schultz investment company, HUD, Illinois, interactive process, joint statement of DOJ and HUD on reasonable accommodations under the fair housing act and reasonable modifications under the fair housing act, leases, magic words, policies and procedures, reasonable accommodation, reasonable modification, Service animal, service animals and assistance animal for people with disabilities in housing and HUD-funded programs, Stragapede v. City of Evanston, title III

Architectural Accessibility Issues

June 27, 2017 by William Goren Leave a Comment

Next week is the week before my daughter’s bat mitzvah. Accordingly, I think I’m going to take that week off. This week’s blog entry comes to me courtesy of my friend Stephen Meyer, a certified Texas accessibility specialist (a certified person in Texas that assesses facilities for compliance with accessibility guidelines and regulations). The case, Kirola v. City and County of San Francisco has many interesting legal issues that arise when dealing with architectural accessibility including: the need for experts and judges to know the law; just what is standing in title III cases; whether it is necessary for the named plaintiff in a class to have visited all facilities covered by the class description; what architectural accessibility rules apply in a given situation; the importance of understanding the categories inherent in the architectural guidelines; how do you measure ramp slope; and the importance of understanding the difference between facility accessibility and program accessibility. As is usual, the blog is divided into categories and they are: facts; issues presented; court’s reasoning on the individual various issues mentioned above; and takeaways. The reader, of course, is free to focus on any or all of the categories.

I

Facts

Here, what you have is a class action alleging that San Francisco’s public right-of-ways, pools, library, parks, and recreation facilities are not readily accessible to and usable by mobility-impaired individuals. The District Court had certified a class. At the trial level, you had a dueling battle of experts with the court finding that San Francisco wins because the plaintiffs experts were not credible, among other things. Plaintiffs appealed to the Ninth Circuit.

II

Issues Presented:

  1. Just what is standing in title III cases and is it necessary for the named plaintiff to have visited every facility that is the subject of the lawsuit in order to have standing;
  2. What architectural accessibility rules apply in a given situation;
  3. What is the importance of understanding the categories inherent in the architectural guidelines;
  4. How do you measure ramp slope;
  5. What is the difference between facility accessibility and program accessibility.

III

Court’s Reasoning Concerning Just What Is Standing in Title III Cases

  1. In order to show standing, a plaintiff has to show: 1) he or she has suffered an injury in fact that is: a) concrete and particularized and b) actual or intermittent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Under the ADA, an injury in fact is established by evidence showing both that the plaintiff encountered an access barrier and either intent to return or is deterred from returning to the facility. Evidence at trial revealed that the plaintiff did encounter a variety of access barriers at San Francisco’s public facilities.
  3. Whether a person has standing to pursue an ADA claim is a completely different question with a different standard than whether the plaintiff will prevail on her title III ADA claim. That is, standing in no way depends upon the merits of the plaintiff’s contention that the particular conduct is illegal.
  4. Meaningful access to a program in its entirety is what you have to show to get relief on the merits, but that is not what you have to show to establish standing. To hold otherwise, means article III standing requirements are superfluous so the only thing that would matter then is whether you would succeed on the claim.
  5. In title III cases, determining injury in fact means figuring out whether the plaintiff has encountered at least one barrier interfering with his or her access to the particular facility and whether she intends to return or is deterred from returning to that facility.
  6. The barriers encountered by the plaintiff prevented her from benefiting from the same degree of access as a person without a mobility disability and deterred her from future attempts to access the facilities she visited.
  7. Her injuries are actual because they already happened, and she is likely to suffer harm in the future as a result of being currently deterred from visiting the various facilities as a result of their accessibility barriers.
  8. Causation is established because the barriers are traceable to the City since they are responsible for construction, alteration, and maintenance of the facilities that have those barriers.
  9. The redressability requirement is also satisfied since a properly framed injunction could ensure that the City alters or remove the access barriers.
  10. A plaintiff does not lose standing because her proposed injunction is thought to be too narrow by the court. The proper question is what is the federal court capable of granting.
  11. Once a named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry ends, and the court proceeds to consider whether the prerequisites for class certification are met.
  12. Plaintiff demonstrated individual standing to bring her claims, and the class definition determined by the court is broad enough to encompass every facility discussed at trial, regardless of whether the name plaintiff visited that facility or not. The District Court simply got it wrong when it said it could only address facilities visited by the plaintiff since such a decision did not take into account the scope of the certified class.

IV

What Architectural Accessibility Rules Apply In A Given Situation?

  1. The Architectural and Transportation Barriers Compliance Board produces the Americans with Disabilities Act Architectural Guidelines Standards (ADAAG). So, how it works is that the Access Board establishes a baseline of nonbinding requirements and then the Department of Justice must adopt binding regulations consistent with but not necessarily identical to the Access Board’s guidelines.
  2. On July 26, 1991, the Access Board published its first version of ADAAG. That same day, DOJ adopted ADAAG in full as its own accessibility regulations.
  3. Through September 3, 2002, the Access Board published several supplements to ADAAG. However, those supplements were nonbinding because the DOJ did not re-adopt the ADAAG up to that point.
  4. In 2004, the Access Board published a wholesale revision of ADAAG. On September 15, 2010, DOJ updated that the accessibility regulation by incorporating the 2004 ADAAG standards with a few variations.
  5. DOJ’s 2010 standards set a timetable for complying with the 2004 ADAAG standards. In particular, for new constructions or alterations commencing before September 15, 2010, public entities could decide to comply either with the original 1991 ADAAG standards or with another set of federal standards, the Uniform Federal Accessibility Standards. For new construction or alterations commencing between September 15, 2010 and March 15, 2012, public entities could comply with either the 1991 ADAAG standards, the Uniform Federal Accessibility Standards, or with the newly adopted 2004 ADAAG standards. Finally, any new constructions or alteration commencing after March 15, 2012 had to comply with the 2004 ADAAG standards.
  6. The District Court found that the City had elected to follow ADAAG over the Uniform Federal Accessibility Standards with respect to meeting its accessibility obligations. The Ninth Circuit was confident that for new constructions and alterations the City elected to comply with the 1991 standard. Since the trial took place in April and May of 2011, the City could’ve only chosen to comply with the 2004 standards with respect to facilities constructed or altered during that year and a half time frame.

V

What Is the Importance of Understanding the Categories Inherent In the Architectural Guidelines?

  1. Since obedient to the spirit of the ADA does not include noncompliant with ADAAG’s requirements even where it is a matter of inches, it is important to know the different categories of requirements in the ADAAG standards.
  2. ADAAG contains two categories of requirements. §4 of the ADAAG, “Accessible Elements and Spaces: Scope and Technical Requirements,” sets out detailed design guidelines for particular features of facilities. The other category pertains to specific types of facilities rather than specific features, which the Ninth Circuit referred to as facility-specific requirements. Those requirements go across several different sections of the ADAAG and gives standards for particular types of facilities such as: restaurants and cafeterias; medical care facilities; and libraries. Each of the facility-specific sections begins with the recital that facilities covered by the facility-specific sections still have to comply with the feature-specific guidelines of §4.
  3. The District Court messed up by saying that the ADAAG did not apply to public rights-of-way, parks, and playground facilities.
  4. ADAAG standards do apply to public rights-of-way, parks, and playgrounds since §4 feature-specific requirements apply even though no facility-specific guidelines exist for public rights-of-way, parks, and playgrounds.
  5. Applying ADAAG’s feature-specific requirements to public rights-of-way, parks, and playgrounds follows the executive branch’s own interpretation of ADAAG as set forth in a technical assistance manual, and the Ninth Circuit has held that manual is entitled to deference.
  6. That technical assistance manual says that if there are not specific standards for a particular type of facility, the technical requirements of the chosen standard should be applied to the extent possible. That means applying ADAAG’s feature-specific standard to public rights-of-way, parks, and playgrounds. So, for example, while there is not a facility-specific section for parks, there is a feature-specific section for ramps that might be in the park.
  7. It is true that the technical assistance memorandum says that if no standard exist for particular features, those features need not comply with the particular design standard, but the key there is, “feature.” The sentence doesn’t speak to facilities. So, that is simply not the same thing as saying that if there are no facility-specific requirements for parks, then parks do not have to comply with the ADAAG at all.
  8. ADAAG §4 by its own terms applies to all areas of newly designed or newly constructed buildings and facilities and the altered portions of existing buildings and facilities. The key there is the phrase, “all areas.”
  9. It doesn’t work to say that the ADAAG has no application to facility types not having their own specific set of regulations because the facility-specific sections are collections of additions and exceptions. In fact, at the head of each facility-specific section language exists saying that the facility-specific requirements apply in addition to the feature-specific regulations of §4. In a real cool analogy, the Ninth Circuit says that the ADAAG is structured as a regulation applicable to all fruit but with additional rules and exceptions for apples, bananas, and oranges. So, ADAAG still applies to a pear (in this case public rights-of-way, parks, and playgrounds).
  10. Applying ADAAG’s feature-specific requirement to public rights-of-way, parks, and playgrounds makes sense because a contrary holding would mean that public entity would be free to ignore access concerns when altering buildings, new rights-of-way, parks, and playgrounds and that the standards for compliance would no longer come from the DOJ and the Access Board, but from the courts. Such a system would make no sense as courts do not have the institutional competence to put together a coherent body of regulations on this topic but federal administrative agencies do. Both the regulated entities and architects need a holistic collection of design rules and not the incremental products resulting from courts deciding cases one at a time.
  11. Avoiding minor variations is exactly what the ADAAG requires of new or altered facilities.
  12. Plaintiff’s experts were correct to avoid applying ADAAG’s proposed standard for recreation facilities because under the legal scheme, see paragraphs above, the ADAAG’s proposed standard for recreation facilities were not binding.

VI

How Do You Measure Ramp Slope?

  1. The District Court was mistaken in concluding that plaintiff’s expert should have considered the overall rise in the run, which is the average slope of the ramp, when determining whether the ramp slopes complied with the applicable standards. That conclusion doesn’t make sense because for a mobility impaired person with a disability, it is the steepest point and not the average steepness of the ramp that determines the accessibility of a particular ramp. In fact, in 2007, DOJ issued an ADA best practices toolkit recognizing that the average steepness of the ramp was not useful when assessing the accessibility of a ramp already constructed since such a figure assumed the slope over the length of the ramp is consistent, which is often not the case.
  2. So, it is the steepest point on the ramp that affects whether wheelchairs can navigate the ramp and therefore, the correct benchmark is the maximize localized variation, the steepest individual point along the slope of the ramp.

VII

Program Accessibility v. Facility Accessibility

  1. When it comes to title II of the ADA, it is program accessibility that matters. Facility accessibility is a matter of when the facility was constructed, but if you are dealing with facilities that have not been constructed or altered since the ADA went into effect, then program accessibility prevails. I add that any alterations to a facility made since the ADA went into effect have to be done consistent with the applicable standards and the path of travel to those alterations must also be done consistent with the applicable standards.
  2. Plaintiff simply did not prove that when viewed in its entirety the public right-of-way and recreation Park program were inaccessible.
  3. No class member testified there were locations in the City that a class member could not reach because of access barriers.
  4. Title II of the ADA allows for other methods to satisfy program access even where a particular method of benefiting from the program is not accessible. Here, the City of San Francisco provide both public transportation and paratransit services as part of the public right-of-way.
  5. Title II of the ADA does not require perfect accessibility.
  6. The city of San Francisco operates a website (hopefully, that website is accessible to persons with disabilities…), that gives information on the accessibility of its various parks. That information can help persons with disabilities plan on the parks that he or she wants to visit.
  7. While there may be something unique about every park, the final implementing regulations of title II of the ADA only require that the program as a whole is accessible and not that all access barriers, even those at the most iconic locations, be remedied.

VIII

Takeaways

  1. Standing to sue is not the same thing as winning on the merits and involves a lower standard than winning on the merits, which requires meaningful access. Standing requires the encountering of at least one barrier interfering with access and an intent to return or the person being deterred from returning as a result of that barrier.
  2. If a plaintiff proposes the terms of an injunction, those terms do not affect standing.
  3. If a class action is involved, standing is not lost if the plaintiff has not visited every facility covered by the class so long as the name plaintiff falls within the definition of the class.
  4. For ADAAG guidelines to be binding, DOJ adoption is required.
  5. This case is excellent for detailing what guidelines apply in a given situation. From my experience, even people who are in the business of assessing facilities for ADA architectural compliance can get thrown off balance on this score.
  6. Full and equal enjoyment of facilities by persons with disabilities, especially those with mobility impairments, can be a matter of inches.
  7. Just because no facility-specific category exists, that doesn’t mean the owner does not have to worry about the feature-specific obligation of §4 of the ADAAG.
  8. The Ninth Circuit cites to a technical assistance manual supplement. One has to wonder, especially with Justice Gorsuch now on the bench, how much deference such a memorandum will get in the future. For the deference to administrative interpretation issue, see this blog entry.
  9. The proper benchmark for measuring a slope of a ramp is the maximize localized variation, steepest point of the ramp.
  10. Program accessibility under title II of the ADA is measured against the entire program and not against a specific facility. Remember, architectural standards do apply for any new construction or alteration as do path of travel requirements. For discussion of what might be an alteration, see this blog entry.
  11. A variety of ways exist to get to program accessibility.

Filed Under: ADA, Federal Cases, Final Federal Regulations, General, Proposed Federal Regulations, Title III Tagged With: §4 ADAAG, accessible elements and spaces scope and technical requirements, ADA, ADAAG, ADAAG guidelines, alteration, architectural guidelines, benchmark, class action, Department of Justice, DOJ, Facility accessibility, facility-specific standard, feature-specific standard, intent to return, interference, Kirola v. city and County of San Francisco, maximize localized variation, meaningful access, mobility impairment, parks, path of travel, playgrounds, program accessibility, public rights-of-way, ramp slope, recreation facilities, standing, technical assistance manual, title III, title III standing

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  • Failure to Accommodate, Direct Evidence, and Adverse Action December 10, 2019
  • Intent to Return December 3, 2019
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ADA Legal Resources

  • Department of Justice ADA Web Site
  • Disability Discrimination, EEOC Info
  • DuPage County bar Journal, The Brief
  • Job Accommodation Network
  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

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  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • The Legal Universe of Internet Accessibility and What You Can Do about It
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Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
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  • Second Circuit civil rights cases
  • state sovereign immunity in Scotus blog
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. Emotional support animal
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Auer Deference blog entry in SCOTUS blog
  • Blog entry discussing oral argument in Bostock, Zarda, and Stephens referenced in SCOTUS blog
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • Interstate sovereign immunity in SCOTUS blog
  • Is the Texas House violating the ADA by refusing CART
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
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  • Sheehan decision
  • Supreme Court on Auer Deference blog entry in SCOTUS blog
  • The Physics (and Economics, and Politics) of Wheelchairs on Planes
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

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