Court: District Court, N.D. California; November 25, 2014; Federal District Court
Ivana Kirola, a mobility-impaired individual, filed a disability access class action against the City and County of San Francisco, claiming discrimination due to the City’s failure to eliminate access barriers in its libraries, swimming pools, parks, and public rights-of-way, as well as deficiencies in its policies for ensuring accessibility. The First Amended Complaint includes six claims for relief under various laws: Title II of the Americans with Disabilities Act, the Rehabilitation Act, the Civil Rights Act, the California Unruh Civil Rights Act, the California Disabled Persons Act, and California Government Code 11135. Kirola seeks only declaratory and injunctive relief, with the Court having jurisdiction over both federal and state claims. Class certification was previously granted, with Kirola as the representative. After a trial, the City filed a Post-Trial Motion for Judgment, questioning Kirola’s constitutional standing and the substantive merit of her claims. The Court found that Kirola lacks standing to pursue claims on behalf of the class and, even if she had standing, failed to prove that the City violated any of the alleged laws.
Title II of the Americans with Disabilities Act (ADA), enacted in 1990, aims to address discrimination against individuals with disabilities, specifically in public services. Effective January 26, 1992, Title II applies to public entities and mandates that individuals with disabilities are afforded "meaningful access" to public services, programs, and activities. To establish a prima facie case under Section 202 of Title II, a plaintiff must demonstrate: 1) they have a disability; 2) they are qualified to participate in the public entity’s services; 3) they were excluded from or denied benefits of those services; and 4) the exclusion or denial was due to their disability.
The ADA emphasizes "program accessibility," allowing public entities flexibility in ensuring access while not requiring all facilities to be equally accessible. Public entities must develop a "transition plan" detailing steps to achieve program accessibility. Facilities constructed before the ADA's effective date are subject to "program access" requirements, while new constructions or alterations after January 26, 1992, must comply with stricter standards ensuring they are "readily accessible" according to the Americans with Disabilities Act Accessibility Guidelines (ADAAG) or the Uniform Federal Accessibility Standards (UFAS). The ADAAG outlines detailed design requirements specifically for facilities constructed or altered after the effective date.
The original complaint identified three plaintiffs: Kirola, Elizabeth Elftman, and Michael Kwok. After three years, on February 9, 2010, the plaintiffs sought to amend their complaint to remove Kwok and replace him with Linda Pillay, while also refining class allegations and claims. Before the court ruled on this motion, the plaintiffs filed for class certification on March 2, 2010, proposing Kirola and Pillay as class representatives, despite Pillay not being a party to the action. Elftman was not considered for this role. On April 12, 2010, the court partially granted the amendment request, allowing the narrowing of the class definition, dismissing Kwok, and clarifying allegations against the City regarding compliance with California Government Code 11135, but denied adding Pillay as a party, citing a lack of good cause. The plaintiffs subsequently filed their First Amended Complaint (FAC) on June 24, 2010.
On June 7, 2010, the court granted class certification under Federal Rule of Civil Procedure 23(a) and (b)(2), defining the class as all individuals with mobility disabilities denied access to certain City programs and facilities due to disability barriers. Kirola was appointed as the class representative after the court previously denied the inclusion of Pillay. During the class certification proceedings, the City contested Kirola's standing to seek injunctive relief but withdrew this challenge at a motion hearing on May 18, 2010. The court's June 7, 2010 order did not address Kirola's standing or the scope of relief he could seek for the class, stating such determinations would occur post-trial based on evidence presented. A five-week court trial ensued, featuring testimonies from thirty-six witnesses, including Kirola, class members, City employees, and experts in accessibility.
After the trial, the Court mandated the parties to meet and confer on further proceedings and submit a Joint Statement. In this Joint Statement, the Plaintiff asserts that she faces ongoing disability access barriers that impede her access to the City’s pedestrian rights of way, parks, pools, and libraries, violating the meaningful access standard. The Plaintiff identifies a "real and immediate threat of repeated injury" linked to eleven specific policies and procedures:
1. The City's 2007-2008 Fiscal Year ADA Transition Plan for Curb Ramps and Sidewalks fails to meet the three-year implementation requirement and January 26, 1995 deadline for barrier removal.
2. The Sidewalk Inspection Repair Program operates on a 25-year cycle for barrier inspections and repairs, also violating the 1995 deadline.
3. Curb ramps constructed between 1994 and 2004 had a 1/2 inch lip at the base, which does not comply with federal design standards.
4. The City’s Guidelines for Paving allow curb ramps to be installed up to two years after repaving, which is insufficient for timely access.
5. The City’s policy indicates that a park is "accessible" if it has an accessible entrance and at least one recreational opportunity, neglecting accessible routes to all recreational options.
6. The Uniform Physical Access Strategy permits disability barriers to remain until major renovations, lacking a clear definition of "accessible" and no deadline for accessibility of parks and libraries.
7. The City’s complaint policies allow for up to two years to address disability access barriers without a specific timeframe.
8. Policies for new construction do not ensure compliance with federal standards through close-out inspections or official certifications.
9. Maintenance policies lack specific deadlines for identifying and fixing broken or non-operational items.
10. The City has not implemented a self-evaluation and transition plan as required by California Government Code 11135.
11. There is no written policy for identifying and removing safety hazards affecting persons with mobility disabilities.
These claims highlight systemic issues in the City’s approach to disability access compliance.
The Court makes findings of fact under Federal Rule of Civil Procedure 52(a)(1), based on trial evidence, witness credibility assessment, and legal arguments. Key areas of assessment include: 1) the City’s infrastructure for ensuring accessibility for disabled individuals in relation to public programs, services, and activities, specifically focusing on the public right-of-way system and library, aquatics, and RecPark programs; 2) the overall accessibility of these programs, services, and activities; 3) the City’s grievance procedure for addressing accessibility complaints; and 4) the credibility of Kirola, class members, and expert witnesses concerning the claims raised in the case. Any findings that are more suitably classified as conclusions of law will be treated as such.
The City of San Francisco has established a comprehensive infrastructure to ensure accessibility for its disabled population, which accounts for approximately 20% of its residents, or 150,000 individuals, as reported in the 2000 census. The Mayor's Office on Disability (MOD) is responsible for guaranteeing that all city programs, services, and facilities are accessible, in compliance with the Americans with Disabilities Act (ADA) and state law. MOD is directed by Susan Mizner, who has been in the role since 2003, along with a team of staff members with disabilities and significant advocacy experience. Key personnel include Joanna Fraguli as Deputy Director for Programmatic Access and John Paul Scott as Deputy Director for Physical Access.
MOD engages with various organizations to represent the needs of the disabled community and maintains a public website offering resources on access rights, ADA transition plans, and grievance procedures. Additionally, the Mayor’s Disability Council (MDC) has been advising the Mayor on disability matters since 1998, consisting of 9-11 members from the disabled community, and focuses on ensuring ADA compliance and discussing related issues.
Every city department with more than fifty employees has an ADA Coordinator who addresses disability access complaints and collaborates with MOD. MOD also provides training and technical assistance across city departments to uphold disability rights and accessibility standards, emphasizing the maintenance of accessible features in all city services and programs.
MOD offers targeted training for ADA Coordinators and manages a citywide grievance procedure for public complaints about disabled access to its facilities and services. This procedure is detailed on MOD's website, which includes instructions for submitting complaints using the "ADA Complaint and Assistance Form." MOD intentionally chose this terminology to encourage submissions from individuals who may not see their issues as complaints. Complaints are forwarded to the relevant ADA Coordinator, who investigates with possible assistance from MOD or the City Attorney. A written response is provided to the complainant within thirty days, signed by both the ADA Coordinator and the department head. While the City generally responds within this timeframe, some complaints may require longer resolution due to complexity.
In the three years preceding the trial, 40% of grievances were related to housing, 25-30% to public transportation and paratransit, and 20% to physical access, particularly curb ramp requests. Fraguli oversees the grievance process and has received minimal complaints since joining MOD in 2006. Other ADA Coordinators across City departments also handle access complaints relevant to their areas, with MOD receiving monthly reports on complaint types and departmental responsiveness.
Curb ramp requests can be submitted through various methods, prompting investigations by the Department of Public Works (DPW), which may involve collaboration with other departments. The City prioritizes these requests based on its Curb Ramp and Sidewalk Transition Plan. Additionally, the City actively seeks curb ramp requests from low-income neighborhoods that have a high disability rate but low submission levels, implementing outreach programs to encourage participation.
The City initiated a bus advertisement campaign and distributed postcards to paratransit riders to inform them about curb ramp request procedures. City staff were trained to engage directly with residents in low-income neighborhoods regarding their disability access needs. As of the trial, there were 124 outstanding curb ramp requests in the City, with 44 classified as "higher priority" due to being submitted by individuals with disabilities. The City had fully-funded curb ramp projects either in design or construction phases at 132 intersections. William Hecker, a program access expert for the City, confirmed that the City's grievance procedures comply with the ADA requirements.
Funding for disability access improvements is outlined in the City’s Capital Plan, which allocated $177 million from 2012 to 2021, with $24 million for facility upgrades and $153 million for public right-of-way enhancements. Including other related expenses, estimated total planned ADA spending for the period is approximately $670 million. The Department of Public Works (DPW) manages around 2,000 miles of sidewalks, 27,585 street corners, and about 7,200 intersections. The DPW’s Disability Access Coordinator oversees access issues, construction reviews, staff training, and serves as a contact for accessibility inquiries and complaints.
The City's Municipal Transportation Agency provides paratransit services, supporting individuals with disabilities who cannot use public transportation. The City has established standards for new construction and modifications to ensure accessibility. Since the 1970s, curb ramps have been installed, with formal design standards created in the 1980s. In 1989, the DPW launched its Curb Ramp Program, prioritizing installation based on feedback from the disabled community. Design standards were revised in 1994 to resolve conflicts between federal and state accessibility requirements concerning curb ramp designs, resulting in different standards for federally and non-federally funded ramps.
In 2004, the City revised its curb ramp design standards to eliminate a half-inch lip. Prior to this, in 1995, the Department of Public Works (DPW) issued Order No. 169,270, outlining plans for curb ramp installation in compliance with disability access laws, acknowledging potential funding delays. DPW prioritizes curb ramp installation by first replacing ramps in poor condition, then installing new ramps where none exist, adding a second ramp on corners with only one, addressing locations with constraints, and finally reconstructing safe but non-compliant ramps.
In May 2004, DPW issued Order No. 175,387, mandating bi-directional curb ramps or at least one ramp per corner, enhancing access for disabled individuals, despite such ramps not being required by the ADA. City Procedure No. 10.6.2 stipulates that curb ramps must be designed according to this order, with any deviations requiring approval and coordination with other departments.
The City evaluates entire intersections for accessibility when installing curb ramps, ensuring compliance at all corners. Design standards also ensure accessible paths within traffic islands and medians. Quality Assurance Checklists have been established for curb ramp compliance and construction quality.
Since 1989, any road paving extending into an intersection necessitates curb ramp construction or reconstruction if they do not meet current standards, outlined in the DPW’s Paving Guidelines. These guidelines permit deferral of curb ramp installation for up to 24 months if a planned project would demolish the new ramp shortly after installation. If the subsequent project is delayed or canceled, immediate installation of the ramps is required. Typically, the Bureau of Sewer and Street Repair repaves blocks individually without impacting crosswalks, thus not triggering the obligation to install ramps; no evidence was found indicating a policy to avoid crosswalks to evade this obligation.
The City’s curb ramp transition plan, initiated in FY 1992/1993, identified a need for 52,000 curb ramps. This plan was updated in 1998 and again in FY 2007/2008, with the latter amendments outlined in the Curb Ramp and Sidewalk Transition Plan (PTX 22). A key objective is "curb ramp saturation," ensuring compliance with current design standards at pedestrian crossings, often through bi-directional curb ramps at corners.
The 2008 revisions created a priority matrix for installations based on citizen requests, access to government offices, public transport, commercial areas, and residential zones. The Department of Public Works (DPW) employs a grading system to evaluate curb ramps, assigning a "condition score" out of 100, with deductions for various access barriers. Ramps scoring above 75 are considered usable, those between 70-75 are low priority for replacement, and scores of 69 or below indicate high priority.
The City maintains a Curb Ramp Information System (CRIS) to track requests and condition scores, using Geographic Information System (GIS) mapping for locations, including transit stops and public facilities. By January 2011, all curb ramp locations had been surveyed, confirming existing ramps and conditions, leading to a determination of 23,401 new ramps needed for saturation. The City installs approximately 1,200 curb ramps annually but does not have a specific deadline for achieving saturation, estimating completion by FY 2028/2029—though this estimate may overstate the actual need.
The City anticipates achieving curb ramp saturation by Fiscal Year 2026/2027, contingent on accelerated installation and available funding. Prioritization of curb ramp construction aligns with the Curb Ramp and Sidewalk Transition Plan and is informed by the CRIS database, planned paving projects, and outstanding requests. Although the Curb Ramp and Sidewalk Transition Plan did not initially address crosswalks, a pilot project has started to assess crosswalk accessibility in conjunction with curb ramp construction, focusing on identifying barriers such as cracks and potholes. The results will be integrated into the Transition Plan, supported by a newly developed crosswalk assessment checklist.
The Curb Ramp and Sidewalk Transition Plan includes the Sidewalk Inspection and Repair Program (SIRP), initiated in FY 2006/2007, which oversees the maintenance of 2,000 miles of sidewalks. SIRP mandates a proactive inspection of every city block on a 25-year cycle, with notifications to responsible parties for identified access barriers and ensures their remediation. The inspection cycle is deemed reasonable given the city's size and operational constraints, focusing on high pedestrian usage areas, including commercial districts and sites near public transportation, schools, and healthcare facilities.
City policy holds private property owners accountable for sidewalk maintenance in front of their properties. Upon identifying a defective sidewalk, the City notifies the owner, who has 30 days to initiate repairs. The City promotes using its contractors through permit fee waivers. If the property owner fails to comply, the City can repair the sidewalk and bill the owner, typically through property liens.
The SIRP (Sidewalk Improvement Repair Program) is a proactive initiative that works alongside the reactive Accelerated Sidewalk Abatement Program (ASAP), which addresses public complaints regarding sidewalk issues affecting accessibility. ASAP prioritizes high-impact complaints, ensuring inspectors assess them typically within one business day. Upon discovering defects, inspectors issue repair notices and abatement orders, with repairs generally completed within ninety days.
Additionally, the City has implemented various policies to enhance sidewalk accessibility, including guidelines for construction barriers, scaffolding placement, sidewalk occupancy permits, merchandise displays, tree maintenance, and slip-resistant covers.
Beyond sidewalk programs, the City provides aquatic, library, and RecPark programs across multiple facilities. The library system includes the Main Library and twenty-seven branches, while the aquatic program operates nine swimming pools, and RecPark encompasses around 220 parks over 4,200 acres, featuring 400 structures like clubhouses and recreation centers.
In 2003, the City hired consultant Logan Hopper to create a facilities transition plan, which assessed around 700 facilities and identified essential services and access barriers. However, concerns about cost and timeline underestimation led to the recruitment of Scott, a licensed architect with extensive experience in ADA compliance, to further develop the transition plan. This culminated in the 2007 Uniform Physical Access Strategy (UPhAS), aimed at ensuring meaningful access to these facilities.
Scott's plan for enhancing accessibility in City facilities builds upon the work of access consultants Hopper and Gilda Puente Peters, as well as input from various City departments and the disabled community. The plan, governed by the Universal Plan for Accessibility Standards (UPhAS), aims to maximize access for disabled individuals, prioritize physical access solutions over programmatic alternatives, and ensure services are offered in integrated settings. UPhAS requires public and stakeholder input and includes annual assessments of access priorities, but does not establish specific deadlines for removing access barriers, instead setting funding targets that guide the implementation of accessibility improvements, which vary annually based on available funding.
The City continually reassesses UPhAS by tracking the status of projects using detailed, color-coded spreadsheets and maps to represent facility accessibility. Different colors indicate various compliance statuses, with blue dots representing facilities that have undergone improvements, not necessarily indicating full compliance with accessibility regulations. The goal is to exceed legal access requirements, particularly for libraries, while for Rec Park facilities, the focus remains on achieving program access compliant with legal standards.
Regarding new construction and alterations, the City adheres to the ADA Accessibility Guidelines (ADAAG) as its standard for compliance with federal laws, following regulations that require new or altered facilities to meet accessibility standards.
Since June 22, 1998, the City mandates that all new construction or alterations funded by the City undergo a review process to ensure compliance with disability access laws. City staff regularly collaborate with architectural teams during planning, review construction plans prior to permit issuance, conduct site visits during construction, and perform post-construction inspections to verify access compliance. The City also requires adjacent sidewalks and curb ramps to be accessible, assessing and correcting any identified access issues surrounding newly constructed or altered facilities.
In January 2010, the Department of Public Works (DPW) implemented Procedure 9.8.24, which outlines the accessibility compliance review process for DPW-managed projects. This procedure mandates that the DPW Disability Access Coordinator conducts accessibility reviews during planning, construction, and post-construction phases before a building is certified for occupancy. Publicly-funded projects undergo similar reviews, with the Department of Building Inspection requiring written approval from compliance officers at each design and construction stage.
Expert testimony from Hecker, a consultant to the DOJ on ADA enforcement, affirms that City staff responsible for project reviews are competent and knowledgeable about ADA accessibility requirements. Additionally, challenges to the City’s compliance with Title II of the ADA extend to its swimming pools, libraries, and parks. The City’s aquatic program includes nine public swimming pools, with six having been renovated to incorporate necessary accessibility features such as accessible routes, entries, check-in counters, signage, ramps, toilets, and showers.
Accessible locker rooms and transfer lifts for individuals with mobility impairments are highlighted as essential features in public pools. Balboa Pool, Garfield Pool, and Ros-si Pool are identified as "limited access" pools but are undergoing barrier removal improvements, which indicates ongoing efforts to enhance accessibility. An expert, Hecker, confirmed that the distribution of accessible pools (six out of nine) sufficiently supports the City's aquatic program.
The City’s library program encompasses a Main Library and twenty-seven branches, supported by a $153 million Branch Library Improvement Program (BLIP), primarily funded by a voter-approved bond. BLIP aims to ensure twenty-four branch libraries are ADA compliant and seismically retrofitted. Although four libraries were previously deemed compliant, BLIP was approved to exceed minimum accessibility requirements.
By April 29, 2011, construction or renovation was completed for seventeen of the twenty-four branch libraries, with additional projects anticipated for completion soon. Kevin Wesley Jensen, the Disability Access Coordinator, conducted reviews of BLIP projects to ensure compliance with accessibility standards at various stages, withholding occupancy approvals when necessary for corrections.
Moreover, Jensen assessed the accessibility of paths from libraries to public access points and implemented improvements. The City employs two accessibility coordinators focused on programmatic and physical access, respectively. Library staff conduct daily facility inspections using a checklist to maintain accessibility, ensuring that any obstacles are addressed promptly, typically within twenty-four hours.
The Library provides various non-structural accessibility solutions, including assistive technologies, a books-by-mail service, a mobile library, resources for the blind and print disabled, a Deaf Services Center, and Accessibility Tool Kits containing items like magnifying glasses and book holders. The City has enacted a policy mandating automatic door openers in all buildings to enhance accessibility, regardless of regulatory requirements, and has established custom access standards for purchasing furniture and equipment. Complaints about accessibility are managed by the Library’s ADA Coordinator, with immediate resolutions when possible, though some require further investigation or budgeting.
RecPark oversees approximately 4,200 acres of parkland, comprising over 220 parks and various facilities. Due to the extensive nature of these facilities, RecPark employs a program access strategy to provide disability access instead of ensuring full accessibility at each location. It evaluates recreation programs for accessibility and maintains an Inclusion Services department to address individual needs. Three dedicated employees focus on accessibility: the ADA Programmatic Access Coordinator manages public relations and training; the ADA Facilities Coordinator ensures physical access through barrier removal; and the Inclusion Services Coordinator provides custom accommodations.
RecPark conducts daily inspections of its facilities for safety and accessibility issues before public access. Additionally, it performs a semiannual accessibility survey with a detailed checklist to address any barriers. These inspections are in compliance with Proposition C, a voter referendum from 2003, which mandates regular assessments of pathways, playgrounds, athletic courts, and other features.
Inspections focus on enhancing accessibility by addressing path of travel issues, including the quality of surfaces, operability of gates and latches, and removing barriers like low-hanging tree limbs. RecPark has established a written policy for prioritizing maintenance requests: emergencies are addressed immediately, health, safety, and accessibility issues within forty-eight hours, while routine issues are handled subsequently. The public can access information about RecPark's programs and services, including accessibility details, through its website, which features a dedicated page for disability access. This page provides information on facility and program accessibility, contact information for inquiries, and instructions for submitting requests for accommodations, along with a list of adaptive recreation classes. The website includes a map indicating parks' accessibility status and defines an "accessible" park as one with wheelchair-accessible entries and at least one accessible recreational opportunity. It notes that some areas in designated accessible sites may still be inaccessible due to natural features.
RecPark endeavors to accommodate special requests from individuals with disabilities, asking for seventy-two hours' notice but attempting to fulfill requests made with less notice. The ADA Coordinator for Programmatic Access testified that RecPark has consistently met accommodation requests, with no evidence to the contrary. Since 2000, RecPark has invested over $500 million in capital projects to enhance facilities, ensuring compliance with access regulations during renovations. In 2008, RecPark estimated a need of approximately $1.7 billion for system improvements, primarily funded by voter-approved measures like the 2008 Clean and Safe Neighborhood Parks General Obligation Bond and the City’s General Fund. A year-long community outreach campaign preceded the 2008 Bond, leading to the selection of fourteen parks based on criteria such as earthquake safety hazards and physical condition.
Key points include the planning and funding of park improvements in urban areas, specifically a $150 million general obligation bond proposed for the November 2012 ballot, aimed at enhancing accessibility and park amenities such as play areas and recreation facilities. The RecPark and the Mayor’s Office on Disability (MOD) collaborate on capital projects, with MOD guiding accessibility standards and priorities related to the 2008 Bond. Disability access reviews for these projects are conducted by the Department of Public Works’ Disability Access Coordinator and MOD's Access Compliance Officers, following established procedures to ensure compliance with accessibility standards.
Lay witness testimonies describe the experiences of several individuals with disabilities, including Kirola, who uses a motorized wheelchair and identified specific barriers in the public right-of-way, such as uneven surfaces on Fulton Street and Steiner Street. Other witnesses include Timothy Grant, Margie Cherry, Elizabeth O’Neil, and several mothers of class members, all of whom have various mobility challenges. They collectively highlight the need for improved accessibility in San Francisco’s public spaces.
Kirola reported difficulties with her wheelchair due to bumps on the east side of Fulton, which caused hesitation and indecision about her route, though she did not clarify whether these bumps hindered her sidewalk access. She indicated she could travel on the west side of Fulton without issue. On Steiner Street, she claimed her wheelchair would not navigate due to bumps, and on 19th Street, she expressed confusion about avoiding bumps, necessitating bus use, yet did not provide details on the severity of the bumps or any burdens from alternative routes. Kirola also described an incident where she collided with an uncovered tree well on McAllister Street, despite there being a 48-inch wide clear path around it. Additionally, she noted encountering a corner with only one curb ramp at McAllister and Fillmore but did not file a complaint. She had to choose a different route due to the lack of curb ramps at Hayes and Fillmore, and later requested curb ramps that were installed within twenty months. Kirola did not identify other specific barriers on the City’s sidewalks or in crosswalks, although she stated she independently navigates the City’s public right-of-way and transportation systems. Other witnesses, including O’Neil, Grant, Cherry, Kimbrough, and DeChadenedes, reported issues with uneven sidewalks, exposed roots, and missing curb ramps affecting their access. Kirola used three of the City’s libraries and encountered obstructive step stools in the aisles, particularly noticing them frequently at the Western Addition Branch Library, which she visits bi-monthly.
No evidence was presented regarding Kirola's encounters with misplaced stools at the Main Library and Parkside Branch Library, nor was there any indication that these issues hindered her library usage or access to programs. Kirola did not report encountering other access barriers in the City’s libraries, and no class member testified to any access issues in these facilities.
Regarding swimming pools, Kirola regularly swims at Hamilton Pool and MLK Pool, both of which have been renovated for accessibility. Her only complaint about Hamilton Pool is the lack of a lift for the children's slide, which she noted is intended for children and she was unsure if adults could use it. While MLK Pool is her favorite, she finds traveling there by public transit time-consuming but manageable. Kirola found Sava Pool accessible, but noted a cracked sidewalk nearby. However, she experienced accessibility issues at Balboa, Garfield, and Rossi Pools, which are categorized as "limited access" rather than fully accessible. At Balboa Pool, she encountered a steep entrance ramp and inadequate locker room facilities. Garfield Pool also had insufficient clearances in the locker room and restrooms, while she was deterred from visiting Rossi Pool after learning it was inaccessible.
Kimbrough indicated that the steep ramp at Balboa Pool made it unusable for her daughter, preventing her from accessing swimming lessons. Despite Coffman Pool being only slightly farther away, she prefers Balboa due to safety concerns in Coffman’s neighborhood. Monasterio reported that Garfield Pool, while designated accessible, lacks safe showering facilities. Cherry reported discontinuing a swimming class at MLK Pool due to a broken lift that was out of service for a month.
In terms of parks, Kirola testified about accessibility issues at Alamo Square Park, noting that the accessible entrance is steep, she cannot access the children's play area, and certain paths have steep slopes. She did not provide details on when these features were constructed and acknowledged the park's hilly location. Kirola did not mention accessibility issues at any other City parks, while Cherry stated that the parks in her area need maintenance.
A mother expressed concerns regarding her daughter's accessibility issues at various locations in Golden Gate Park, including difficulties with the disabled stall placement, entering the Tea House due to stepping stones, and accessing playgrounds and paths at different parks. Specific problems included inability to enter the children’s playground and challenges at the duck pond and St. Mary’s playground due to steep paths. Another mother reported her daughter's struggles accessing Glen Canyon Park and parts of the Conservatory of Flowers.
Regarding grievance procedures, MOD's Fraguli stated she had not received any complaints from Kirola or other class members, which surprised her. Kirola had previously contacted her district supervisor about curb ramps, leading to installations by the City. Monasterio also raised concerns about curb cuts, resulting in prompt action from the City to address her requests.
O’Neil detailed three curb ramp requests dating back to 1991, with varying responses from the Department of Public Works (DPW). One request resulted in a ramp being installed in 2011, unrelated to O'Neil's initial complaint, while another complaint made between 2006 and 2009 was addressed within a year. A third complaint submitted in 2011 about steep curb ramps at a specific intersection faced initial rejection due to infrastructural constraints.
The City proposed a costlier design solution involving a "bulb-out" to extend sidewalks into the street, avoiding complications with sub-sidewalk basements. At trial, curb ramps were still in design. Twenty new bi-directional curb ramps had been installed in O’Neil’s neighborhood, some at her request. Expert testimony was provided by several individuals, including architects and specialists in disability access. Mastín, an architect, reported that 1,358 out of 1,432 inspected curb ramps were non-compliant. Steinfeld found accessibility barriers at thirteen out of fourteen inspected sites. Margen noted significant accessibility barriers at ten intersections. The Court deemed the opinions of Kirola’s experts as unreliable, citing methodological concerns, including their failure to account for curb height and sidewalk width, inconsistent measurement techniques, and improper application of ADA Accessibility Guidelines (ADAAG) in their assessments.
Concerns were raised by the Court regarding the qualifications of evaluators involved in the assessments. Steinfeld's evaluations were primarily conducted by untrained student interns, leading to unreliable results. Margen lacked architectural credentials, and expert Mastín indicated that only licensed architects should be considered experts in disability access standards. The City’s expert, Wood, criticized the inconsistent methodologies used by Kirola's experts, noting a lack of standard measurement practices for slopes, sidewalks, and curb ramps, which resulted in internal disagreements among Kirola’s team. Levine, supervising Steinfeld's inspections, favored her own methods over those of Kirola’s experts.
Additionally, Kirola’s experts overlooked dimensional tolerances in construction, which account for minor variations due to workmanship. Wood explained that such tolerances are acceptable under the ADA and do not constitute accessibility barriers. Mastín failed to consider these tolerances, misclassifying minor deviations as significant barriers. Furthermore, measurements of curb ramp slopes were taken without regard to the overall slope and flatness, often relying on the steepest points, which distorted results. Steinfeld admitted to this practice, inaccurately representing the ramps' overall compliance. Mastín incorrectly identified numerous ramps with slopes below 8.3 percent as non-compliant, contradicting ADAAG standards. Wood highlighted that Kirola’s experts misidentified features like potholes as access barriers despite compliant pathways existing around them.
The Court finds the opinions and reports from Kirola’s experts to lack probative value due to their incorrect application of the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which are relevant only to constructions post-January 26, 1992. The ADAAG primarily pertains to buildings and facilities, excluding the public right-of-way, although guidelines for pedestrian facilities in public rights-of-way were proposed by the U.S. Access Board on July 26, 2011. Even if ADAAG were relevant, it only applies to newly constructed or altered elements. Kirola’s experts failed to consider the construction timelines of assessed curb ramps, undermining their credibility.
Margen's claim that the entire city's system of curb ramps and sidewalks is inaccessible is deemed unpersuasive; he lacks expert certification in program access under Title II of the ADA and is not an architect, which is considered essential for expertise in disability access standards. His inconsistent testimony about the program access requirements further diminishes the weight of his conclusions.
Additionally, the Court finds little merit in the testimony of Kirola’s GIS expert, Seaman, as his analysis of the CRIS database did not include data for accessible curb ramps adjacent to non-accessible ones, despite its availability. Trial evidence indicates that the CRIS database was outdated and incomplete, missing data on curb ramps installed by departments other than the Department of Public Works.
Conversely, the Court finds the opinions of the City’s accessibility expert, Hecker, credible. Hecker’s assessments align with the Department of Justice’s recommendations for public entities, which advocate for long-range plans for curb ramp installation and a request-based system for implementation, as articulated in the City’s Curb Ramp and Sidewalk Transition Plan.
On cross-examination, Hecker acknowledged that although he reported in December 2009 that not all curb ramps necessary for program access had been installed, he had not determined the total number of curb ramps required for such access at that time. Hecker did not provide any updated conclusions regarding the City’s public right-of-way access. Despite this, the Court found that Hecker’s 2009 report did not contradict his view that the City’s curb ramp installation policies comply with the ADA. The Court deemed Kirola’s experts’ opinions on the City’s access to public rights-of-way as unpersuasive compared to Wood’s testimony, and found Hecker credible, affirming that the City’s curb ramp priorities align with DOJ recommendations.
The Court then examined expert testimonies concerning access for mobility-impaired individuals to the City’s Library and RecPark facilities. Kirola argued that each facility must be fully accessible due to the City’s provision of "unique" neighborhood facilities. Margen characterized each park or library as a unique program, suggesting that all services at one facility should be available at every facility, but admitted his view lacked authoritative support and later contradicted himself by stating that services need not be duplicated across parks. The Court found Margen’s opinions inconsistent and lacking credibility. Similarly, Steinfeld agreed with Margen's notion of uniqueness but criticized the practicality of the City’s program access efforts due to the distance between parks.
The document evaluates the opinions of various individuals regarding the accessibility of parks and recreational facilities under Title II obligations of the ADA. Stein-feld acknowledged that not all parks need to be accessible but asserted that the City should provide an “equivalent park” within a half-mile radius of non-accessible parks. He argued that certain parks, such as Mission Dolores Park and Golden Gate Park, lack equivalents and must therefore be fully accessible. Stein-feld emphasized that parks are unique to their neighborhoods, but he presented no foundation for his claims and admitted to having limited experience with the parks he referenced. His contradictory statements regarding accessibility requirements diminished his credibility. The court found Stein-feld's opinions unpersuasive and unsubstantiated.
Similarly, Mastín contended that all unique facilities must be accessible, criticizing the notion of accessing recreational centers outside one's neighborhood as inadequate for social interaction. However, like Stein-feld, he failed to provide authoritative support or factual backing for his views, leading the court to question his credibility.
Waters also posited that a facility's uniqueness should influence program access assessments but did not cite relevant authority or factual evidence. The court deemed his opinions unpersuasive as well, attributing them to personal beliefs rather than a professional understanding of ADA obligations. Overall, the court assigned little weight to the opinions of Stein-feld, Mastín, and Waters, emphasizing their lack of factual basis and reliance on subjective views.
Accessibility at the City’s facilities is contested, with experts for Kirola asserting significant barriers at libraries, pools, parks, and recreation centers. Despite acknowledging unique features of each location, the court found that this does not necessitate full accessibility in every neighborhood. Kirola's experts’ conclusions lacked credibility, as they were based more on personal advocacy than on industry standards.
The experts inspected 18 of 28 libraries, including the Main Library, and reported issues such as narrow aisles, inadequate turnaround space, inaccessible restrooms and seating, and excessive door pressure. They emphasized the need for systemic improvements to enhance overall library accessibility.
In their evaluation of the City’s 9 pools, the experts noted that three were classified as “limited access,” indicating they were not designed for program access. They identified barriers like inaccessible pathways, inadequate signage, missing or inaccessible handrails, heavy doors, and insufficient knee clearance at drinking fountains.
Regarding parks, the experts inspected 13 parks, 7 mini-parks, and 16 playgrounds within a network of approximately 220 parks. They highlighted various barriers, including an inaccessible entrance ramp at Balboa Park, cracked sidewalks, and limited accessible paths within Golden Gate Park.
Lastly, inspections of 13 out of 73 recreation centers revealed access barriers, including inadequate signage, excessive slopes to accessible restroom features, a non-functioning elevator, and an inaccessible tennis court.
Mastín determined that four out of eleven inspected recreation centers were inaccessible due to observed barriers. The court found Kirola’s experts unconvincing regarding access issues at the City’s libraries and recreational facilities, citing inconsistent methodologies and inspection protocols among the experts. Two experts focused on minor construction variances and ignored acceptable dimensional tolerances, leading to insignificant deviations being misclassified as access barriers. For instance, at Kimball Playground, a short level was used to measure slopes, resulting in exaggerated readings. At St. Mary’s Playground, the team incorrectly assessed the slope of a curb ramp based on localized variation rather than the overall compliance metrics.
Kirola’s experts also misapplied access requirements, using stricter ADAAG standards that were not applicable to parks and playgrounds, which had proposed but not finalized federal guidelines recognizing varied topographies. Furthermore, they failed to distinguish between standards for new construction and alterations under the California Building Code, applying the most recent version rather than the one in effect at the time of construction. The experts did not account for conflicts between state and federal law regarding the placement of fixtures, leading to ambiguity over which standards were more restrictive.
Regarding libraries, the experts claimed there were narrow aisles and insufficient turnaround space, yet state and federal law permits end aisles at library stacks to be 36 inches wide, whereas the cited 48-inch requirement applies only to restricted U-turn areas. Additionally, claims of excessive door pressures were made, but many doors had increased pressure for safety reasons, particularly fire doors, which are allowed to have greater opening resistance.
Mastín acknowledged that daily variations in door pressures can occur due to environmental factors. Kirola's experts inaccurately referenced barriers that did not significantly impede access, such as criticizing doors with automatic openers and citing the absence of handrails despite the installation of an elevator system providing adequate access. They also misidentified the lack of an ambulatory stall in a library bathroom, overlooking the presence of two accessible stalls that exceeded legal requirements. Additionally, Steinfeld’s claim regarding an inaccessible ramp at the Richmond Branch Library was invalidated by the existence of a compliant secondary ramp. Kirola's experts focused on minor compliance issues rather than acknowledging substantial improvements made for accessibility.
In contrast, Wood’s independent assessment of the City’s facilities—including libraries, pools, and recreation centers—was deemed reliable. His team evaluated 69 sites and categorized Kirola's findings into four groups based on their impact on usability. Wood's evaluations of the City’s libraries, excluding the under-construction Visitation Valley Branch and Ocean View Branch, concluded that the facilities had essential accessibility features such as accessible routes, entrances, automatic door openers, elevators, and accessible restroom facilities. Wood also assessed five pools, confirming each possessed necessary accessibility features.
An accessible route from the property line to the building, entry, check-in counter, signage, necessary ramps or curb ramps, toilets, showers, locker rooms, and transfer lifts for pool access are identified as essential accessibility features. After reviewing recreation centers evaluated by access experts, Wood confirmed that newly renovated centers meet accessibility requirements, including routes, entries, community rooms, ramps, elevators, gyms (except one), weight rooms, accessible doors, attendants for special requests, accessible bathrooms, and drinking fountains. MOD identified three to four access barriers for the Library that required attention and noted maintenance issues. At trial, the City was already addressing these repairs. MOD recommended Remediation of about 400 access barriers at Rec-Park, with some minor issues manageable by staff while others required capital funding. Rec-Park had no timeline for completing these barriers but was prioritizing recommendations with MOD. Wood found that only 1.6% of access barriers at City libraries and recreation facilities required modification, and the Court found Wood credible, favoring his analysis over that of Kirola’s experts. Hecker testified that as of December 2009, nineteen libraries were “blue dot” accessible, indicating sufficient access to the library system, and similarly assessed the accessibility of swimming pools, recreation centers, and athletic fields, confirming adequate program access across these facilities.
Hecker based his program access opinions solely on the evaluations of Scott, the Deputy Director of Physical Access at MOD, who is a licensed architect with extensive experience in accessibility and has served on relevant U.S. Access Board committees. Hecker expressed strong confidence in Scott's "blue dot" designations, which indicate accessible programs and services, due to Scott's expertise and the City’s procedures for designing accessible facilities. As of December 2009, 77 out of 133 children’s playgrounds (58%) in the City were designated as "blue dot" accessible, with an additional 15 scheduled for renovation. The Court deems this distribution adequate for providing program access, noting that Kirola did not present any evidence countering the City’s claims regarding its accessible facilities. Kirola’s experts pointed out that some "blue dot" facilities were not fully compliant with access regulations, but this misinterprets the purpose of the designations, which indicate compliance with the City’s obligations rather than complete accessibility.
Regarding the City’s grievance procedure, Hecker asserted that it meets ADA regulatory standards, allowing public complaints through various channels and mandating a response within thirty days. The Court gives significant weight to Hecker’s opinion. In contrast, it finds Margen’s critique of the procedure lacking because it does not require a strict timeline for resolving complaints, a requirement not specified in the DOJ’s model grievance policy. Therefore, Margen's opinion is given little weight. The document concludes with a legal overview of Title II of the ADA, affirming that individuals with disabilities should not be excluded from public entity services due to their disability.
No qualified individual with a disability shall be excluded from or denied benefits of a public entity's services due to inaccessible facilities, as stipulated by the ADA (28 C.F.R. 35.149). Similarly, Section 504 of the Rehabilitation Act prohibits handicap discrimination in federally funded programs and activities (29 U.S.C. 794). The legal analyses under the ADA and Rehabilitation Act are essentially aligned (Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999)). Title 42 U.S.C. § 1983 allows for actions against deprivations of constitutional rights but does not confer substantive rights itself (Graham v. Connor, 490 U.S. 386, 393-94 (1989)). The Unruh Act guarantees equal access for individuals with disabilities to public places, with ADA violations also constituting Unruh Act violations (Cal. Civ. Code § 51(f)). The California Disabled Persons Act (CDPA) ensures full access to public accommodations for individuals with disabilities and recognizes ADA violations as CDPA violations (Cal. Civ. Code § 54.1(d)). California Government Code § 11135 prohibits discrimination based on disability in state-conducted or funded programs. The Court's analysis of the ADA claim also applies to claims under the Rehabilitation Act, Unruh Act, and CDPA. Whether to grant permanent injunctive relief under Title II of the ADA is at the district court's discretion, particularly if the plaintiff does not demonstrate an immediate threat of irreparable harm (Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 851 (9th Cir. 2001)). Additionally, the City argues that Kirola lacks standing to sue regarding access to its programs and services, emphasizing the importance of subject matter jurisdiction, which can be questioned at any time (Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)).
To invoke federal court jurisdiction, a plaintiff must meet the "case or controversy" requirement outlined in Article III of the Constitution, necessitating the establishment of standing. Standing involves demonstrating three key elements: (1) an injury in fact, which is a concrete and particularized invasion of a legally protected interest; (2) causation, establishing a traceable connection between the injury and the defendant's conduct; and (3) redressability, showing that it is likely the injury will be remedied by the relief sought. This triad is fundamental to the case-or-controversy requirement, and the party asserting jurisdiction bears the burden of proving it.
For claims seeking declaratory and injunctive relief, plaintiffs must additionally show a significant possibility of future harm. Standing based on threatened injury requires that the threat be "certainly impending" to qualify as injury in fact, as mere possibilities are insufficient. A plaintiff must also demonstrate a realistic threat of repeated injury to establish standing for prospective relief.
Class representatives must be members of the class they represent and must establish the existence of a case or controversy for each claim and form of relief sought.
Before addressing whether the plaintiff, Kirola, has Article III standing, the Court considers four preliminary issues regarding the evidence relevant to her standing: (1) whether standing can be established by evidence not presented at trial; (2) whether Kirola's experiences with barriers in her neighborhood confer standing for barriers she did not encounter; (3) whether standing can be based on the experiences of class members; and (4) whether Kirola can challenge the City's overarching policy of discrimination. The City argues that Kirola's standing should be assessed solely on her trial testimony, while Kirola contends that the Court should also consider evidence obtained during discovery.
Kirola's standing will be assessed based on the trial record, which is essential under Article III's case or controversy requirement. Standing must be established throughout all federal proceedings, supported with evidence appropriate to each litigation stage. While general allegations may suffice initially, plaintiffs must provide specific facts through affidavits or other evidence in response to motions for summary judgment, and these must be substantiated at trial if disputed. When standing is challenged factually, the plaintiff must prove standing by a preponderance of the evidence. Kirola was aware that her standing would be contested at trial, although the City did not raise the issue during the class certification motion. The court noted that Kirola provided minimal testimonies regarding her claims of injury, specifically mentioning only three sidewalk bumps, one corner lacking curb ramps, and another corner with a single curb ramp. The court has a continuous obligation to dismiss actions if it appears to lack subject matter jurisdiction.
Errant step stools were identified at three City libraries, three pools were deemed inaccessible, and steep paths were noted at one park. Kirola, acknowledging her trial testimony's shortcomings, attempts in her post-trial arguments to introduce additional evidence not presented during the trial. Specifically, she references parts of her deposition and a declaration submitted for class certification to support her claims of encountering further barriers. However, this attempt is unsuccessful, as established case law mandates that standing must be proven through trial evidence when disputed at the final stage of litigation. The Court emphasizes that relying solely on the trial record is essential for due process, as Kirola's deposition and declaration are categorized as inadmissible hearsay under Federal Rules of Evidence. Kirola has not demonstrated any applicable hearsay exceptions, nor provided justifications for the Court to consider these statements, which lacked cross-examination.
Ultimately, the Court concludes that Kirola's standing must be determined based exclusively on the trial evidence, prohibiting her from using deposition testimony or prior declarations to augment her standing claims. Furthermore, Kirola asserts she has suffered injury from access barriers in her neighborhood and argues that the City must ensure accessibility at a neighborhood level, thus claiming standing to address barriers in areas she did not personally encounter. She supports her stance with a reference to the case of Chapman v. Pier 1 Imports, where a mobility-impaired individual sued for access issues at a specific retail location.
The court determined that a plaintiff has standing to seek injunctive relief if they have experienced an injury in fact due to barriers that limit their full enjoyment of a facility because of a disability. This standing can be established by showing either deterrence or injury-in-fact combined with a desire to return to a noncompliant facility. Additionally, an ADA plaintiff who has proven standing regarding encountered barriers is entitled to sue for injunctive relief concerning barriers they have not yet encountered but are related to their disability.
The case Chapman I is distinguished from the current matter primarily because it involved an individual lawsuit rather than a class action and was based on Title III of the ADA, which mandates that all public accommodations must be accessible to individuals with disabilities. In contrast, Title II of the ADA focuses on programs and services as a whole, rather than requiring each facility to be individually accessible. Thus, Title II may permit some inaccessibility in certain facilities as long as the overall program remains accessible.
To establish standing under Title II, a plaintiff must demonstrate that the barriers they faced resulted in a significant denial of meaningful access to the entire program, rather than merely citing isolated access issues in their neighborhood. The court also found that cited out-of-circuit district court cases did not support Kirola's arguments regarding standing.
Both cases referenced focus on the accessibility of polling places, highlighting concerns about voter disenfranchisement and the assignment of registered voters to polling locations near their homes to promote voting participation. The Philadelphia Board of Elections specifically assigns voters to divisions close to their residences, with an estimated 1,000 to 1,200 polling places in the city. The issues regarding polling place locations and voter access differ from those related to disabled persons' access to city facilities and public rights-of-way. As a result, the court deems these cases irrelevant to the current matter.
The court rejects Kirola's argument that she can establish standing solely based on barriers encountered within her neighborhood. Instead, she must demonstrate full denial of access to the city’s programs, services, and activities. Kirola also contends that she can establish standing through the experiences of other class members, but this argument fails. In class actions, named representatives must show personal injury rather than relying on injuries suffered by other class members. Relevant case law, such as Pence v. Andrus and Sierra Club v. Morton, asserts that standing requires personal injury to the plaintiffs themselves, meaning that if the named plaintiffs lack standing, the class as a whole lacks standing.
Kirola cites the Armstrong case to support her claim that the experiences of other class members should be considered for standing. However, the court notes that Armstrong addresses two components of standing: the actual injury of the named plaintiffs and the potential for recurrence of that injury. Kirola's argument confuses these components, as Armstrong emphasizes the need for the named plaintiffs to demonstrate their own injuries in relation to the class's claims.
The court addresses the requirement for a plaintiff to demonstrate personal injury when seeking injunctive relief, emphasizing that the named plaintiff's standing cannot be based on injuries suffered by class members. The Armstrong case clarifies that the experiences of other class members do not support the claim of the named plaintiff’s injury. Kirola's assertion that she has standing to challenge an alleged overarching policy of disability access violations contradicts her previous claims focused on specific policies. The court notes that simply having an access barrier does not necessarily indicate a violation of Title II of the ADA, which requires a comprehensive review of program access rather than assessing individual elements of a facility. Kirola's reference to Arreola v. Godinez is deemed irrelevant since it pertains to standing at the pleading stage, not based on trial evidence. Ultimately, the court concludes that Kirola lacks standing regardless of how she frames her challenge.
Kirola has not demonstrated that she has suffered an injury in fact related to the access barriers she encountered, which undermines her claim of any injury from alleged impermissible policies or practices. To establish standing, Kirola must rely on her own experiences as presented in her trial testimony, rather than those of class members or extraneous evidence. She must prove that she was denied meaningful access to the entirety of the challenged programs, services, and activities, rather than specific facilities. The City contests Kirola’s standing, asserting that she has not shown an injury in fact or the potential for redress through a favorable ruling, nor has she established the likelihood of recurrence, a requirement for prospective injunctive relief.
The Court concurs with the City, indicating that Kirola has not met the burden of proof necessary to establish standing regarding the challenged programs and services. To prove injury in fact under the ADA, a plaintiff must demonstrate deprivation of “meaningful access” to a service, program, or activity in its entirety. Kirola claimed to have faced numerous access barriers, including issues with sidewalks, tree wells, street corners, library step stools, inaccessible pools, and steep paths. However, her testimony was limited, focusing on a few specific locations rather than providing a comprehensive assessment of the City’s extensive public right-of-way system, which includes about 2,000 miles of sidewalks and numerous intersections. The Court found that Kirola did not sufficiently demonstrate that the entire system was inaccessible or unusable, as her testimony lacked detail on the nature and extent of the alleged barriers.
Kirola's testimony regarding the necessity to take alternate routes due to uneven sidewalks or missing curb ramps lacks sufficient detail to establish a violation of the Americans with Disabilities Act (ADA). Her claims do not specify which alternate routes were taken, undermining their probative value. Under the ADA, the city of Carlsbad can require disabled individuals to travel slightly longer routes under certain conditions, provided that overall program accessibility is maintained. The mere absence of curb ramps does not constitute a triable issue of ADA violation.
In relation to the City’s RecPark program, which encompasses about 220 parks and 400 structures, Kirola only identified accessibility issues at Alamo Square Park, noting the steep entrance and her inability to access the children's play area. However, her general observations do not demonstrate an ADA injury, especially since an expert indicated that limited access to parts of a park could still satisfy program access requirements. Kirola also failed to provide specific measurements or details regarding the paths at Alamo Square Park.
Regarding her experiences with Balboa Pool, Garfield Pool, and Rossi Pool, Kirola's testimony about accessibility issues does not prove an actual injury from denial of access to the aquatic program, as none of these pools are designated as fully accessible, and the city does not depend on them for program access. Overall, the city’s aquatic program is deemed to provide adequate program access.
Kirola's access to the City’s aquatic program is affirmed by her regular use of the accessible Hamilton and MLK Pools. However, she has not demonstrated a concrete injury from limited access to the City’s library program, as the only issues cited were occasionally misplaced step stools at three libraries. These obstructions, deemed temporary and removable, do not constitute architectural barriers under the ADA, which focuses on permanent barriers. Relevant case law, including Sharp v. Island Restaurant-Carlsbad and Cal. Council of the Blind v. Cnty. of Alameda, supports that isolated or temporary interruptions in access due to maintenance do not violate the ADA. The City library staff conducts daily checks for obstructions, meaning any barriers would typically exist for no longer than 24 hours. Kirola did not consistently encounter these stools and reported no significant difficulties accessing the library services. She references Chapman v. Pier 1 Imports to argue that the stools may constitute an accessibility barrier; however, the circumstances in that case are distinct, as the court found factual disputes regarding recurring barriers, which Kirola has not established in her situation.
Merchandise placement in the Pier 1 store was intentional by employees, whereas the step stools in the library were likely placed by patrons, not staff. Kirola failed to demonstrate that misplaced stools interfered with her access to library services or the broader library network. Consequently, the court ruled that Kirola does not have constitutional standing to pursue her claims, either individually or as a class representative.
Regarding redressability, even if Kirola had experienced an ADA injury, she did not show that a court's intervention would provide her tangible benefits, as required by the precedent set in Lujan. Kirola sought a broad permanent injunction affecting the City’s operations but lacked a clear connection between her claimed injury and the requested relief. Specifically, she requested accessible curb ramps at all locations within ten years, despite the City’s existing plan to achieve curb ramp saturation within approximately twelve years. Evidence indicated that her request for a specific curb ramp was fulfilled within two years, and there was no indication that her proposed timeline would expedite this process.
Additionally, Kirola proposed an injunction for the City to inspect and repair sidewalk barriers along its 2,000 miles of sidewalks within ten years, advocating for a more frequent inspection cycle than currently planned. However, she did not establish how her proposed remedies would effectively address her complaints regarding accessibility, further undermining her claims of redressability.
Kirola's proposal for a shorter inspection cycle fails to acknowledge the relationship between the City’s proactive Sidewalk Inspection and Repair Program (SIRP) and the reactive Accelerated Sidewalk Abatement Program (ASAP). SIRP actively seeks out sidewalks needing repair, while ASAP addresses repairs based on public complaints, which are prioritized and typically resolved within ninety days. Kirola did not file any complaints regarding the sidewalks she mentioned, and had she done so, the City would likely have resolved them promptly. Consequently, the Court finds that requiring repairs for all sidewalks within ten years is unnecessary and does not address her alleged harm.
Regarding the City’s recreational facilities, Kirola requests an injunction for a comprehensive survey of all pools and parks to identify barriers under the Americans with Disabilities Act Accessibility Guidelines (ADAAG), the creation of a program access plan, and removal of barriers within ten years. However, she failed to demonstrate how this remedy would alleviate her claimed injuries. While she noted barriers at specific pools, the City was already addressing these issues through an ongoing barrier removal project, diminishing the need for Court intervention.
Kirola's experience with accessibility barriers in City parks was limited to Alamo Square Park, but her testimony lacks clarity regarding meaningful access denial. Furthermore, ADAAG compliance surveys for outdoor spaces would not benefit her since ADAAG's dimensional requirements do not apply in these settings.
For the City’s libraries, Kirola seeks an injunction to expedite barrier removal and completion of work on two branches. However, she provided no evidence of encountering barriers at these libraries or any intent to use them. Her proposed remedies do not relate to the specific injuries she claims to have faced due to barriers at other libraries, indicating a disconnect between her allegations and her requests for relief.
Kirola has not met her burden of proof regarding injuries from the alleged denial of meaningful access, failing to demonstrate that the relief sought would remedy these injuries. Consequently, she lacks standing due to insufficient evidence of redressability. Even if she had established constitutional standing, Kirola did not prove that her injury is likely to recur, which requires showing that her injuries stem from specific written policies of the defendant at the time of the injury. A "very significant possibility" of future harm must be demonstrated, and federal courts typically refrain from intervening in non-federal government operations without evidence of an immediate threat of substantial injury.
Kirola argues that her injuries are likely to recur based on eleven City policies allegedly violating the ADA, but to establish this likelihood, she must connect her injury to each policy. Specifically, regarding the Curb Ramp and Sidewalk Transition Plan, Kirola claims it does not comply with ADA deadlines for barrier removal. However, she has not shown that her injuries stem from this plan, as program access does not necessitate curb ramp saturation. Evidence indicates that Kirola independently navigates the City using available public resources, weakening her claims of injury related to missing curb ramps. Additionally, she asserts that historic curb ramp design standards led to ADA violations, but this claim is part of her broader argument regarding the City’s policies.
No evidence was presented at trial demonstrating that Kirola encountered a curb ramp with a half-inch lip, precluding her from claiming an injury related to the City’s curb ramp standards or unremoved curb ramp lips. Kirola also criticized the Sidewalk Inspection Repair Plan (SIRP) for only inspecting access barriers every 25 years and not meeting a 1995 program access deadline. However, SIRP operates alongside the Accessibility Complaint Resolution Program (ASAP), which addresses sidewalk accessibility complaints within approximately ninety days. Given the 2,000 miles of sidewalks in the City, some defects, such as those caused by tree roots or ground movement, are inevitable and do not indicate a policy defect causing injury.
The City’s Paving Guidelines allow for a deferment of curb ramp installations for up to 24 months if related to preplanned projects. Kirola acknowledged no personal negative impact from this policy yet argued she faces a "real threat of injury" due to her sidewalk use. Nonetheless, no trial evidence showed that curb ramp installations had been deferred under these guidelines, rendering her claims speculative and insufficient for standing, as established in Ervine v. Desert View Regional Medical Center Holdings.
Kirola also contended that the City’s facilities transition plan, UPhAS, fails to mandate the removal of barriers until facilities are renovated. However, there was no evidence that she was deprived of meaningful access to programs, services, or activities due to the lack of access improvements. Libraries she frequently uses had been renovated prior to trial, and the pools she mentioned were either renovated or scheduled for renovation. Consequently, the court found no evidence of injury stemming from UPhAS. Additionally, Kirola challenged the City’s RecPark website policy, asserting that an "accessible" park only needs an accessible entrance and one recreational opportunity.
Kirola argues that the RecPark website's definition of "accessible" represents a discriminatory City policy that fails to ensure mobility disabled individuals have meaningful access to recreation. However, the court finds that the website merely provides information about parks, not a formal policy on program access. Kirola has not demonstrated any injury from the website, as she only complained about the steep entrance at Alamo Square Park, which she did not claim was inaccessible, and she has not used the website in question.
Regarding new construction and alterations, Kirola asserts that the City lacks policies for compliance inspections with federal disability standards. Nonetheless, she did not present evidence of any architectural barriers in newly constructed or renovated facilities, thus failing to prove any injury related to these policies.
On maintenance policies, Kirola criticizes the lack of specific deadlines for repairs of broken or non-operational items. However, the applicable federal regulation allows for temporary interruptions in access due to maintenance. Kirola did not identify any barriers directly resulting from these maintenance policies, nor did she prove that any encountered issues at libraries were due to items being broken or in need of repair, indicating that the library system remained accessible.
Kirola did not demonstrate any maintenance issues with RecPark facilities, leading the Court to conclude she has not suffered any injury related to the City’s maintenance policies. Regarding the City’s ADA grievance procedures, Kirola contends they violate Title II by lacking specific timelines for removing disability access barriers, allowing up to two years for such removals. However, she lacks standing to contest these procedures, having made only one request in July 2006 for curb ramps, which were installed by April 2008. There is no evidence she was unable to traverse the intersection or took a longer route due to this delay, undermining her claims about the grievance process.
Kirola also asserts the City has not implemented a comprehensive policy for identifying and removing safety hazards for individuals with mobility disabilities. However, she failed to provide evidence of encountering safety hazards at any library or RecPark facility. While she mentioned steep paths at Alamo Square Park, her claims lacked objective data to support them, and no evidence was presented demonstrating that these conditions denied her program access. Furthermore, her testimony about her wheelchair being caught in a tree well was countered by evidence showing an accessible path around it. Consequently, the Court found she did not establish any actual injury regarding the City’s safety hazard policies.
Lastly, Kirola claims the City has not established a self-evaluation or transition plan as mandated by California Government Code Section 11135, which prohibits discrimination based on disability in state-run programs. The regulations suggest that such plans should be required by responsible state agencies.
Kirola lacks standing to challenge the City's alleged noncompliance with California Government Code § 11135, as she has not demonstrated that she was denied access to any state-funded program or activity, nor has she encountered access barriers due to the absence of a self-evaluation or transition plan. The Court agrees, noting that Kirola's claims are based on vague allegations without evidence that the specific programs in question receive state funding. Consequently, she has not shown any injury related to the City's purported failure to comply with the law.
Furthermore, Kirola's inability to prove injury also means she cannot demonstrate a likelihood of recurrence, which is essential for seeking prospective injunctive relief. In relation to her position as a class representative, Kirola argues that her standing issues could be remedied by substituting class members who testified at trial. However, the Court clarifies that the issue at hand is not mootness but rather a lack of standing, making substitution inappropriate. Citing relevant case law, the Court emphasizes that if a class representative lacks standing, the court lacks jurisdiction over the case, necessitating dismissal. Thus, Kirola's standing deficiency cannot be corrected by introducing additional class representatives.
Permitting a substitution at this late stage would be prejudicial to the City and deemed futile. The City argues that even if Kirola demonstrated Article III standing, she would not succeed on the merits, a position the Court supports. Kirola failed to prove her entitlement to relief for any claims in the First Amended Complaint (FAC). The burden of proof rests with the plaintiff to establish, by a preponderance of the evidence, that the City violated the Americans with Disabilities Act (ADA). The City’s programs in question include its public right-of-way system, library, and recreational programs.
Under Title II of the ADA, compliance requires that the City’s programs must be "readily accessible and usable" by individuals with disabilities. The law allows for various methods to achieve program access without necessitating structural changes if alternative methods effectively ensure compliance. The Court emphasized that program access does not require every facility to be fully accessible but rather evaluates the program as a whole.
Regarding the public right-of-way, the Court determined that Kirola did not demonstrate a lack of program access. She presented no evidence concerning accessibility issues with the City’s crosswalks. She did cite issues with three sidewalks, including cracks and bumps, one incident where her wheelchair was stuck in a tree well, and one corner that lacked curb ramps.
Kiro-la's testimony regarding accessibility issues in the City's right-of-way is deemed insufficient to prove meaningful access denial or violations of federal or state accessibility laws. Class members and expert witnesses similarly provided vague and generalized testimonies about issues like cracked pavement and missing curb ramps, lacking specificity in their claims. For instance, Kimbrough indicated that curb ramps were lacking in her neighborhood but only specified one intersection, where she admitted some ramps existed. Other individuals, including Grant and O’Neil, also struggled to pinpoint specific problem areas. None of the cited issues were confirmed by Plaintiff’s experts as non-compliant with accessibility laws. Although Kiro-la and others experienced access difficulties, this does not demonstrate the City’s failure to provide program access as mandated by the ADA. The court concluded that the City’s public right-of-way system, overall, offers adequate access for mobility-impaired individuals. The presence of some corners without curb ramps does not signify a failure of program access, as compliance is assessed based on the entire system's accessibility, not merely the number of accessible locations. The ADA does not require curb ramps at every intersection, and while the City aims for comprehensive curb ramp coverage, it is not legally obligated to install them at each corner.
The City installs around 1,200 curb ramps annually, prioritizing locations based on citizen requests and high-traffic areas, such as government and public facilities, in line with DOJ guidelines. Since 2004, curb ramp designs must include bi-directional ramps and smooth transitions, with each design verified for ADA compliance through a Quality Assurance Checklist. The City employs a grading system, paving guidelines, an inspection program, and a priority matrix as part of its Curb Ramp and Sidewalk Transition Plan to ensure accessibility and effective installation or repair of ramps where needed. Data on curb ramp installation is tracked in the CRIS database, facilitating planning and funding for future projects. The City’s efforts indicate compliance with Title II obligations, as supported by relevant case law.
In response to critiques regarding the installation of curb ramps, specifically referencing Hecker’s 2009 report that indicated not all necessary ramps were installed, the trial evidence suggests the City has made significant progress toward achieving program access, undermining the validity of Hecker's outdated conclusions.
Regarding sidewalks, Kirola’s concerns focus on maintenance rather than construction, criticizing the City’s 25-year inspection cycle. However, the City prioritizes inspections of approximately 200 blocks annually, focusing on areas with high pedestrian traffic. Given budget and staffing limitations, the Court finds the City’s maintenance approach reasonable.
The City’s inspection policy works alongside the Sidewalk Inspection and Remediation Program (SIRP), prioritizing complaints about sidewalk accessibility for remediation within ninety days. This dual approach demonstrates the City’s commitment to providing program access to its sidewalks, supported by case law. The City enhances access through paratransit services and public transportation, which includes a subsidized paratransit system for individuals with disabilities who cannot use standard public transport. Although Kirola utilizes these services regularly, she argues that paratransit is insufficient and unreliable for all mobility-impaired individuals. Nonetheless, the City does not solely depend on paratransit, using it as an additional resource to improve access. The court finds that the City has not failed in providing program access, despite some operational imperfections.
Kirola also contends that the City has not defined “program access” for public rights-of-way and has not adequately demonstrated that certain non-compliant curb ramps are due to site constraints. However, this argument improperly shifts the burden of proof to the City, which lies with Kirola. Ultimately, the court dismisses Kirola’s claims of deprivation of program access.
Regarding the City’s library program, which includes a Main Library and twenty-seven branches, significant accessibility improvements have been made, particularly through the Branch Library Improvement Program (BLIP), with renovations expected to be completed by 2014. Three libraries that were not part of BLIP had access barriers removed in the 1990s and received further improvements since 2004. An expert testified that the accessible libraries sufficiently provide meaningful access to the library program. Kirola did not prove that the City’s library program fails to offer program access for mobility-impaired individuals, as no class members reported encountering architectural barriers in any of the libraries.
Kirola experienced occasional issues with misplaced stools at three libraries, but no evidence indicated that these obstructions hindered her or her class members' access to library services. Expert testimonies did not support her claim that the City's library program lacked accessibility. The Court found no merit in Kirola's assertion of being deprived of access to the library program.
Regarding the City's aquatic program, which includes nine public swimming pools, six were accessible as of 2009. Testimony confirmed that the distribution of accessible pools provides meaningful access to the program. Kirola and class members failed to present convincing evidence of denied access. Although three pools raised concerns, not all pools need to be accessible for the program to meet compliance standards. Kirola admitted to using Hamilton and MLK Pools without issues.
Kimbrough expressed concerns about the steep ramp at Balboa Pool for her disabled daughter but acknowledged that Coffman Pool, a fully accessible alternative, was only a mile away. Her testimony did not indicate a denial of access, as watching swim lessons is not a government-provided service. Monasterio reported limited accessibility at Garfield Pool, but her negative experience did not demonstrate a lack of overall access to the aquatic program, as other accessible options exist.
Cherry's testimony indicated that she had to discontinue a swimming class at MLK Pool due to the pool's lift being broken for a month. This issue is categorized as a maintenance concern rather than a barrier to access. Despite this, the temporary unavailability of swimming classes does not equate to a lack of program access, as the City is not obligated to offer identical services at each pool. The district court should evaluate the overall offerings and is not required to ensure that each program at different facilities is identical.
Kirola’s claims regarding the City’s RecPark program also lacked evidence of denial of program access. She only highlighted steep paths at Alamo Square Park, which she acknowledged was situated on a hill, and did not claim the park was entirely inaccessible. Testimonies from Cherry, Kimbrough, and Monasterio regarding accessibility at a few parks were vague and insufficient. Complaints mostly centered on specific barriers rather than a total lack of access to RecPark programs. Title II of the ADA requires meaningful access on a programmatic level, not just at specific facilities.
Conversely, the City provided substantial evidence of compliance with Title II of the ADA, showcasing a variety of accessible athletic fields, play areas, and recreation centers, which collectively fulfill the requirements for program access. The City currently offers twenty accessible athletic fields, with plans for eight additional facilities, which were endorsed by expert testimony affirming their sufficiency in providing access to the City’s athletic programs.
The City operates forty-three accessible Recreation Centers and Clubhouses, with renovations completed since 2000 or specific barrier removals since 1992, and additional facilities planned for renovation. Among the Recreation Centers, fifteen out of twenty-three are accessible, with five more receiving funding or currently in the design or construction phases. The accessible facilities adequately provide program access. The City also ensures an equitable distribution of accessible children's play areas throughout San Francisco.
Kirola claims that the Community Garden Program lacks accessibility, but the program is designed for individuals without backyards and requires membership in community clubs to participate. Access improvements are made during construction at community gardens, and individual access requests from club members are accommodated. Kirola and her class members do not belong to any community clubs operating the gardens and have not attempted to visit them, leading to a failure of standing and proof in her claims regarding the gardens.
Kirola’s assertion that the City fails to provide program access in parks due to some “unique” facilities not being fully accessible is unconvincing. This argument misidentifies the standards for unique facilities and fails to recognize that ADAAG does not apply to playgrounds or outdoor recreational areas. Furthermore, program access is a more subjective standard than ADAAG compliance, requiring only a small portion of a park to be accessible.
Regarding Golden Gate Park, which Kirola argues should be fully accessible due to its uniqueness, the Court finds that meaningful access is provided. The park features an extensive network of accessible paths, accessible parking, and restrooms, allowing individuals with mobility disabilities to enjoy its landscapes. Key attractions like the Conservatory of Flowers, the Arboretum, and the Japanese Tea Garden are accessible. Even if there are concerns about the path to the Conservatory interfering with access, there is additional accessible parking on JFK Drive that provides a shorter route, which Kirola's analysis overlooks.
The Arboretum features a comprehensive network of accessible trails and two sets of accessible restrooms, adhering to proposed federal standards. The Japanese Tea Garden includes practical accessible paths, with upcoming improvements aimed at enhancing access to the Tea House. Kirola's claims of inaccessibility at Dolores Park were found unsubstantiated, as Rec-Park is in the midst of a $16 million renovation to make the park fully accessible. Similar renovations are planned for Glen Canyon Park, estimated at $20-$40 million, with $5.8 million allocated from the 2008 Bond.
Kirola argues that the "blue dot" facilities are not fully compliant with access regulations. However, "blue dot" designations indicate that some accessible programs are available, not that all elements of the facilities meet compliance standards. Furthermore, Kirola’s experts did not inspect all “blue dot” facilities, and those assessments that were conducted were deemed unreliable by the City. Ultimately, the Court finds no merit in Kirola's claims regarding lack of program access to the City’s RecPark program.
Regarding new constructions and alterations, the City has chosen to follow ADAAG standards for newly built or modified facilities. Kirola contends that City policies do not ensure strict compliance with ADAAG for facilities built or altered after January 26, 1992, pointing to barriers identified by her experts in City libraries and parks. However, the Court has found Kirola's experts' opinions on ADAAG compliance to be unreliable.
Kirola's experts utilized unqualified individuals for inspections and employed flawed methodologies and inappropriate access requirements. They neglected to account for dimensional tolerances, which are crucial for assessing variations. According to the case Cherry v. City College of San Francisco, plaintiffs bear the responsibility to demonstrate that variances exceed allowable tolerances, requiring proof of both the extent of any shortfall and the dimensional tolerances at the time of construction. The minor deviations from ADAAG standards identified by Kirola's experts do not indicate systemic deficiencies in the City’s construction policies, as only 1.6% of the items required changes. It is acknowledged that no facility is perfect, and the standard of care for architects is to ensure general conformity with access requirements. The Court concluded that the identified variations were insufficient to prove that plaintiffs or class members were denied meaningful access to the City’s services or entitled to class-wide relief.
Regarding grievance procedures under Title 28, C.F.R. § 35.107(b), which mandates public entities with 50 or more employees to implement effective complaint resolution processes, Kirola claims the City’s process is inadequate. The City contends that no private right of action exists to enforce this regulation, a position supported by the Ninth Circuit in Lonberg, which stated that compliance with Title II of the ADA does not necessarily require a public entity to create a transition plan. The court emphasized that failure to draft such a plan does not harm disabled individuals in a manner that Title II seeks to prevent or address.
A public entity can fulfill its obligations to accommodate disabled individuals without necessarily having a specific transition plan or grievance policy in place. The rationale from Lonberg applies to the grievance procedure, indicating that the absence of such a policy does not inherently deny access to city services under Title II of the ADA. The court found no statutory requirement in the ADA for public entities to investigate all complaints of Title II violations; their primary obligation is to avoid discrimination. While entities may implement internal procedures to address potential discrimination, the adequacy of these procedures does not constitute a concern under the ADA. Courts have consistently ruled that there is no private right of action to enforce grievance procedures outlined in 35 C.F.R. § 35.107(b), as seen in cases like Duffy v. Freed and Giustiniani v. Florida Department of Financial Services. The failure to follow internal complaint procedures does not establish an ADA claim, as these procedures are not mandated by the statute. Kirola's argument challenging the sufficiency of the grievance procedure in providing program access lacks evidence, as the grievance process is part of the City's broader efforts to ensure accessibility, which includes both proactive and reactive measures.
The City is engaged in extensive accessibility planning involving various departments and actively seeks input from the disabled community, moving beyond a mere "access upon request" model. The District acknowledges that disabled students must complete specific forms for accommodations, including accessible furniture and transportation. Despite the claim of a private right to challenge the City's grievance procedure under 28 C.F.R. 85.107(b), evidence does not support any violations of this regulation. The City's grievance procedure, overseen by the MOD, involves a structured process where complaints are investigated and responded to within thirty days, although some may take longer due to their unique nature. Fraguli manages this procedure, noting that only 20% of grievances pertain to physical access, primarily concerning curb ramps. The City has addressed requests for curb ramps, installing most within one to two years after becoming aware of them. The Court agrees with Hecker's assessment that the grievance procedure complies with ADA regulations, ruling Kirola's challenge to be without merit. Additionally, Kirola argues the City's maintenance policies for accessible features are insufficient, lacking specific deadlines for identifying and repairing broken or non-operational items.
A public entity's obligation to maintain facilities for accessibility is outlined in 28 C.F.R. 35.133, mandating that features necessary for individuals with disabilities must be kept operable. This obligation is limited to what is feasible, and service interruptions are only deemed inappropriate if they extend beyond a reasonable duration. Legal precedents establish that a plaintiff must demonstrate a pattern of maintenance issues, rather than isolated incidents, to prove ADA violations. Evidence provided by plaintiffs regarding inoperable elevators in MARTA stations was insufficient to suggest a systemic issue.
City libraries enforce strict inspection and maintenance protocols, including daily facility checklists and prompt action on accessibility problems. While a patron, Kirola, identified occasional obstructions such as misplaced step stools, her claims did not convincingly establish these as architectural barriers hindering access to library programs. Similarly, RecPark's policies prioritize addressing maintenance requests related to disabled access and include daily inspections and semi-annual accessibility surveys. These measures ensure that potential mobility barriers are regularly assessed and addressed.
The court also dismissed Kirola's assertions regarding the inadequacy of the City’s sidewalk repair policies, affirming that the policies in place sufficiently address sidewalk access concerns.
The Court finds that Kirola has not proven the City violated its maintenance obligations under 28 C.F.R. 35.133(a). The Court discounts the opinions of Kirola’s experts regarding sidewalk maintenance. Kirola claims the City violates the ADA by lacking a general policy to address safety hazards, asserting that public entities must remove barriers that pose safety risks to individuals with mobility disabilities. However, no legal requirement exists for a written policy on safety hazards, and Kirola failed to demonstrate that the absence of such a policy denied her access to any specific program or service. Her assertion that effective policies would have prevented her from encountering unsafe conditions is deemed speculative and unsupported by trial evidence. The City’s existing policies adequately address safety concerns, with programs like library and RecPark employing daily inspections and prioritizing complaints based on urgency. The Department of Public Works (DPW) also prioritizes issues in the public right-of-way using a grading system developed in collaboration with the disabled community. Ultimately, the Court concludes that the absence of a specific hazard removal policy does not constitute a violation of Title II of the ADA. Additionally, Kirola criticizes the RecPark website for its definition of an “accessible park,” but the City clarifies that this definition is not its standard for program access, emphasizing that the website serves merely to inform the public.
The City’s definition of “accessible” related to its RecPark website does not connect to its program access obligations. The Court concludes that Kirola has not shown that the website indicates a failure to provide access to the park system. Kirola claims the City has not developed a sufficient self-evaluation or transition plan and seeks to compel the City to create these under the ADA and California Government Code section 11135. However, the City has drafted transition plans for public right-of-way and facilities, though it is uncertain if a self-evaluation plan exists. Notably, regulations do not provide a private right of action for enforcing the absence of such plans. The ADA requires public entities to adopt transition and self-evaluation plans, but lacks an explicit private enforcement mechanism. Courts have ruled that failing to prepare a transition plan does not deny access nor compel enforcement, as established in Lonberg v. City of Riverside. Similarly, under California law, which mirrors federal requirements, Kirola’s claims regarding the lack of self-evaluation or transition plans are also rejected, as the state regulations are permissive rather than mandatory. Thus, Kirola cannot compel the City to implement these plans under either federal or state law.
California regulations do not impose a mandatory duty on public entities to develop transition and self-evaluation plans, contrary to claims made by Kirola. This assertion is supported by the absence of such obligations in federal regulations, which serve as the model for California's laws. Federal court interpretations of similar statutes are considered strong persuasive authority when interpreting California law. While the court initially allowed Kirola to pursue claims based on California’s regulations regarding these plans, it later reconsidered this stance, referencing the precedent that permits a district court to review its prior rulings.
The California Government Code Section 11135 originally lacked an explicit private right of action, a gap that the legislature addressed in 2008 by amending Section 11139 to allow for civil actions for equitable relief. However, establishing a private right of action does not imply that all regulations under Section 11135 entail a mandatory duty to create transition or self-evaluation plans. Section 11135 serves as a general anti-discrimination statute, leading to the creation of various regulations that must be interpreted based on their plain meaning, ensuring that all parts of the regulations are given effect and harmonized together.
The regulations implementing California Government Code Section 11135 differentiate between mandatory ("shall") and advisory ("should") duties. Specifically, under California Code of Regulations title 22, sections 98010 and 98251(b), the term "should" indicates an advisory nature, while "shall" imposes a mandatory obligation. The court cited Comunidad En Accion v. Los Angeles City Council, concluding that while Section 11139 allows for a private right of action under Section 11135, it does not convert the advisory nature of the self-evaluation and transition plan regulations into mandatory duties.
Furthermore, Section 11135 applies solely to state-operated or state-funded programs, which Kirola failed to demonstrate in her claims. The court noted that any obligations under the transition and self-evaluation regulations pertain to state agencies, not the city. Kirola did not provide evidence that she or class members were denied meaningful access to city programs due to the absence of a transition plan, leading to the conclusion that her claims regarding the city's failure to adopt and implement such plans were both procedurally and substantively insufficient. The court acknowledged the challenges faced by disabled individuals but emphasized that Kirola lacked standing to pursue claims on behalf of the class as required by Article III of the U.S. Constitution.
Kirola did not successfully demonstrate that the City failed to meet its obligations under Title II of the ADA and related statutes. The trial record indicates that the City is providing meaningful access to its public facilities, including parks and libraries. As a result, the Court ordered a final judgment in favor of the City, closing the case. Title III, applicable to private entities, imposes stricter accessibility requirements compared to Title II. While the City’s transition plan was mentioned, Kirola’s complaint did not specifically address the City’s compliance policies. Kirola's post-trial requests for judicial notice were denied as irrelevant to the Court's decision. The California Building Code’s previous requirement for a detectable curb ramp lip was removed in 2006; however, the City is actively removing legacy ramps and replacing them with detectable warning surfaces on new ramps. Prior to the BLIP bond in 2000, several libraries were upgraded to be ADA-compliant, allowing the focus on other branches. Testimony showed that RecPark collaborates with the community to accommodate disabled gardeners, but there was no evidence that Kirola or class members attempted to access community gardens. Although witnesses noted access barriers at Golden Gate Park, Kirola did not mention encountering any barriers during her examination. The court acknowledged requests made by another individual, Monasterio, which the City plans to address in the upcoming fiscal year.
The City must comply with federal ADA standards and California's requirements as outlined in the California Building Code. While both standards were discussed by experts, the focus of the arguments has been on the City’s ADA compliance. Kirola seeks to introduce deposition testimony that was not submitted previously, specifically the second volume of her deposition, which contains discussions about all but one alleged access barrier. Under ADA Title II, public entities can employ various methods to ensure accessibility, including reassignment of services and alternative site delivery, without needing to use every available means or alter essential eligibility criteria for public programs. The Court found that Kirola's expert testimony regarding her neighborhood theory lacked credibility, conflicting with legal standards and lacking professional support regarding Title II's access requirements. The Court also observed that while the City mentioned causation, it did not specifically address it; however, the concepts of "fairly traceable" and "redressability" are interconnected aspects of a single causation requirement. Kirola raised concerns about the City’s past curb ramp standards, which included a half-inch lip, but there was no evidence at trial that she encountered such a curb ramp or faced difficulties using her wheelchair. Although current standards have removed the lip, some remain unaddressed. Kirola noted cracked sidewalks near Sava Pool, although the pool itself is accessible. She indicated a ten-year timeframe for the City to plan barrier removal, aligning with its capital planning process.
The City's ten-year capital plan is characterized as a flexible planning tool rather than a fixed schedule or budget, with a new plan being prepared annually. Kirola argues that the City’s Paving Guidelines improperly allow a delay of curb ramp installations for up to twenty-four months in cases where a pre-planned project would necessitate the demolition of a newly constructed ramp, and she seeks an injunction to eliminate such deferments. Despite her long residency in San Francisco, Kirola has not encountered an inaccessible corner or curb ramp, nor has she demonstrated a likelihood of future inaccessibility due to these guidelines. No trial evidence showed that the City has deferred curb ramp installations under this policy. Issues raised about uneven sidewalk surfaces are categorized as maintenance concerns and are addressed in other related programs.
Kirola asserts she was limited in her ability to respond to the City's Motion for Judgment due to page limitations. However, the Court did not impose any additional restrictions beyond those established by Civil Local Rule 7.2(b) and allowed for requests for enlarged page limits. Moreover, both parties submitted extensive post-trial briefings, which the Court considered when drafting its order, indicating Kirola had ample opportunity to address the case issues.
The City has installed curb ramps at all locations mentioned in the pleadings, rendering Kirola's complaints moot, as established in case law that suggests a defendant's removal of alleged barriers before trial can moot ADA claims. Kirola's expert claims that nearby accessible pools are not meaningful alternatives, but Kimbrough testifies that Coffman Pool is only two miles away. Additionally, Kirola contends that the City fails to provide required signage directing disabled individuals to accessible areas, as mandated by 35 C.F.R. 35.163(b). However, this regulation does not explicitly require signage about other accessible facilities. While some case law discusses the ADA’s grievance procedures, it does not clarify a private right of action to enforce specific regulations, and Kirola’s proposed post-trial injunction does not seek such a remedy.
