The bloggosphere reports that the City of Lomita California has asked the full Ninth Circuit to rehear the ruling in this case. As is traditional with me, the blog entry is divided into parts: facts, court’s reasoning, and chances en banc/takeaways. The reader is free to focus on any or all of the parts.

I
Facts:

Here’s what happened: a mobility impaired plaintiff sues because the City of Lomita California has no diagonal stall parking on its streets. Therefore, the streets are devoid of accessible parking. The city defends on the ground that it is off the hook because of the absence of regulatory design specification for on street parking facilities. The 10th circuit, as noted by my friend and colleague Richard Hunt here, has said that architectural guidelines can be a safe harbor for a defendant, but of course that assumes that an architectural guideline exist.

II
Court’s Reasoning

The Ninth Circuit (panel of Paez, Nguyen, and Motz with Paez writing the opinion), held that the absence of architectural guidelines does not give the defendant a get out of jail free card and here is how they got there:

1. The ADA was enacted to remedy widespread discrimination against persons with disabilities by providing a comprehensive broad mandate to eliminate discrimination against persons with disabilities through addressing both outright intentional exclusion as well as the failure to make modifications to existing facilities and practices.

2. The Rehabilitation Act defines a program or activity as all of the operations of the Department, agency, special purpose district or other instrumentality of a State or local government. The ADA has been interpreted in much the same way so that the term services, program, or activities includes anything a public entity does.

3. Whether a particular public function is covered by the ADA, depends upon whether that function as a normal function of a governmental entity.

4. The Ninth Circuit has previously recognized that public entities have to maintain accessible public sidewalks even though the implementing regulations do not address sidewalks.

5. The lack of a specific regulation cannot eliminate a statutory obligation.

6. The regulations pertaining to existing and new facilities applied to all normal governmental functions, including the provision of on street public parking.

7. Nothing in the Department of Justice implementing regulations suggests that when technical specifications do not exist for a particular type of facility, public entities are off the hook. In fact, that interpretation made no sense to the court because it would entirely circumvent the regulations requiring newly constructed or altered facilities to be readily accessible.

8. Back in 1994, the Department of Justice in a supplement to their technical assistance manual said that if no standard exists for particular features, those features need not comply with the particular design standard. However the facility must still be designed and operated to meet other title II requirements, including program accessibility. Further, this interpretation must be deferred to by the court because the Department of Justice interpretation of this regulation is not plainly erroneous or inconsistent with the regulation.

9. The Americans with Disabilities Act Architectural Guidelines say that when there are no provisions in the guideline for facility type, element, or feature, those facilities are still subject to other ADA requirements, including the duty to provide equal opportunity. Therefore, the Access Board also intended to impose general accessibility requirements on public entities even where the technical specification for a particular facility are absent.

10. The City can’t complain that it had no notice since the Department of Justice in 1994 clearly broadcasted that independent obligations exist under title II of the ADA even where there are no technical specifications.

III
Chances en banc/Takeaways:

1. In my opinion, much of this ruling is very hard to argue with. It is absolutely true that there are many many cases out there saying that the ADA brings within its scope anything a public entity does. It is also compelling that a lack of specific regulation cannot eliminate a statutory obligation. Finally, the Department of Justice and the architectural accessibility board both make it clear that the ADA creates obligations even where technical specifications do not exist.

2. So where is the weak point in this decision? The weak point to my mind is the court’s discussion of facility and how the existing facility and new facility regulations apply to the situation. The court said that the new facility and existing facility regulations apply because the regulations define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property. 28 C.F.R. § 35.104. The court said that while they will not specifically address the question of whether on street parking areas are facilities because they constitute parking lot to portions of the road as argued by the Department of Justice, it still was the case that on street parking areas qualify as other real property. The counterargument is that the plain meaning of facility is being stretched here to perhaps beyond the breaking point.

3. So here’s the problem. Let’s assume that title II of the ADA applies even though there are no technical specifications dealing with diagonal stall on street parking. The analysis, as mentioned above, for that persuades me at any rate. Let’s also assume that the definition of facility is being stretched to the breaking point and so those regulations do not apply. Accordingly, just what is a governmental entity or place of public accommodation supposed to do in the absence of guidelines. Preventive law suggests two possibilities. First, acting as if the existing facilities and new facilities regulations apply even though they might not. Second, looking to the Americans with Disabilities Act Architectural Accessibility technical bulletin, which says that in new construction and alteration, a reasonable number, but at least one of the type of element should be designed to be accessible. Thus, this preventive law approach would mean ensuring that a reasonable number of a particular design elements would be made to be accessible. Of course, we don’t know what a reasonable number would be and how that number would be determined. Preventive law would suggest that reasonable number would be governed by an objective standard based upon objective evidence.