Granting a right to display doesn’t mean the obligation ends there

I

Introduction

Let’s say you have this situation. The city holds an outdoor car show allowing a whole bunch of people to display their wares outside. One of the vendors blocks the curb ramps providing persons with disabilities access to the sidewalk in front of the hotel where a person was staying as he was in town for his grandson’s wedding. He was injured when he tripped and fell as he tried to walk around the display and step up onto the sidewalk. The city did not post any signs identifying alternative disabled access routes nor, for that matter, was the plaintiff aware of any alternative routes to the sidewalk. The plaintiff sues alleging violations of title II of the ADA and various California statutes. The city have a problem? The short answer is yes according to the Ninth Circuit in: Cohen v. City of Culver City, a decision selected for publication by the Ninth Circuit, which was handed down on June 6, 2014. As per usual, we have different categories: introduction; reasoning of the Ninth Circuit; some thoughts on the court’s reasoning; and takeaways. The reader is free to focus on any or all of the entry.

II

Reasoning of the Ninth Circuit

The court said that the city had a problem for the following reasons:

1. The ADA prohibits not only obviously exclusionary conduct, but also more subtle forms of discrimination interfering with individuals with disabilities equal enjoyment of public places and accommodations;

2. A city sidewalk is a service, program, or activity of the public entity within the meaning of title II of the ADA;

3. Title II of the ADA authorizes private suit for money damages;

4. 28 C.F.R. § 35.151 demands that newly constructed or altered streets, roads and highways have to contain curb ramps or other sloped areas at any intersection having curbed or other barriers to entry from a street-level pedestrian walkway. Further, that same regulation requires that newly constructed or altered street-level pedestrian walkways have to contain curb ramps or other sloped areas of intersections to streets, roads, or highways.

5. It was the city that allowed elimination of the disabled access that it had built.

6. The regulations demand that when a city builds new sidewalks or alters existing one for reasons other than retrofitting to achieve ADA compliance, that it is required to build a curb ramp at every intersection unless doing so is structurally impracticable;

7. It was the city that chose to alter the existing setup of the public sidewalk by allowing private vendors to set up displays for the purposes of holding a car show, and it would not have imposed additional burdens on the city if it required that the vendors locate their wares a few feet in either direction to avoid blocking disabled ramps;

8. When the city has already built a direct route accessible to persons with disabilities, it is reasonable to require that the city not force persons with disabilities to look for and take even a marginally longer route (emphasis added).

9. the city’s action created a genuine dispute of material fact as to whether the city denied the plaintiff access to the sidewalk on the basis of his disability. The court mentioned that the city may have violated a regulation requiring it to maintain disabled access features in good working order (28 C.F.R. § 35.133(a). That same regulation permits only isolated or temporary interruptions in service or access due to maintenance or repairs. To the Ninth Circuit, this regulation makes perfect sense because there is little point in building an accessible route it if it was not in a condition allowing persons with disabilities to use it;

10. The guidance accompanying the regulation mentioned in paragraph 9 above, makes clear that the city has to keep access routes for persons with disabilities free of obstruction. While temporary obstructions are allowed, obstructions persisting beyond a reasonable period of time do violate the statute;

11. The court found that a genuine dispute of material fact also existed as to whether the city failed to maintain this curb ramp in operable working condition by allowing the private vendor’s booth to block the ramp for more than a reasonable time. Whether the duration of the obstruction was reasonable is a question of fact;

12. Poorly maintained public sidewalks may be a form of discrimination prohibited by title II of the ADA because obstructive sidewalks exclude persons with disabilities from ordinary communal life and force them to risk serious injury to undertake daily activities. That is precisely the kind of subtle discrimination that the ADA aims to abolish.

13. The city could have reviewed and approved the placement of the vendors display before the car show, which the permit it issued to the vendors said it was going to do, but the city apparently did not follow through. The city could have also required vendors to not position the displays in front of disabled access ramps or to set the display back a few feet from the curb to allow pedestrians with disabilities to pass. For that matter, the city could have posted a temporary sign in front of this particular display directing pedestrian to the other curb ramp 20 yards down the block (but see, paragraph 8 above).

III
Some Thoughts on the Court’s Reasoning

14. It didn’t come up in this particular case, but what about the argument that the regulations can’t be a basis for a suit alleging violation of the ADA. I don’t think that argument would’ve worked and that may explain why it is not present in this case. As mentioned previously in another blog entry, the Supreme Court of the United States in Alexander v. Sandoval, 532 U.S. 275 (2001), discussed when a regulation will support a private cause of action. What the court said where there was a statute that creates a private cause of action and authorizes the issuance of implementing regulations, those valid and reasonable regulations carrying out that statute are equally as enforceable by a private cause of action as violations of the statute itself. With respect to this case, these specific regulations went through the formal commenting process and considering that, as mentioned in the paragraph immediately below. Further, architectural barriers are very much a part of the ADA and their removal is implicitly written into the ADA statute itself.

15. It also didn’t come up in this particular case, but what about the argument that the specific architectural requirements are not in the ADA itself and therefore went too far when it came to implementing the statute. However, that argument would not fly either because the ADA specifically references by statute that title II implementing regulations have to include architectural and design standards ensuring accessibility to public buildings and facilities by individuals with disabilities. Further, those regulations went through the proper process for becoming final regulations.

16. Sovereign immunity didn’t come up because cities and municipalities are not a sovereign.

17. The one thing that didn’t come up in this decision is deliberate indifference. This omission I find a bit odd because, as discussed in this blog entry, the remedies for violating title II of the ADA are tied into the Rehabilitation Act and to get damages under the Rehabilitation Act you need to show deliberate indifference. It is entirely possible that the facts of this case are such that a jury could find deliberate indifference. Even so, I find it curious that deliberate indifference is not discussed in the case.

18. The language used by the court in paragraph 9 above is interesting. In particular, they refer to discrimination on the basis of disability. However, title II of the ADA talks about discrimination by reason of disability. The distinction may be one without a difference, but nevertheless the explicit language is not the same.

IV
Takeaways:

1. The bottom line is if you were are a city or municipality granting a license to display on the public streets, your obligation does not end at the issuance of a display license. This case makes clear that the city or municipality has a continuing duty to make sure that things do not get set up in a way that discriminate against persons with disabilities.

2. The decision itself gives some excellent preventive steps that city or municipality can do. Those steps include: reviewing and approving the placement of vendor displays prior to the show opening; mandating as a condition of granting the display permit that the vendors avoid position the displays in front of access ramps for persons with disabilities or mandating that such displays be set back a few feet from the curb to allow pedestrians with disabilities to pass; posting temporary signs directing pedestrians to other curb ramps. With respect to the posting of temporary signs, this case suggests that it might depend upon just how much of a detour that the person with a disability has to make with respect to determining whether such a detour would be unreasonable. I might add that another preventive step would be sending out inspectors to review the activity once the activity is open to the public.