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

I

Facts

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

II

Issues Presented:

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

III

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

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

IV

What Architectural Accessibility Rules Apply In A Given Situation?

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

V

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

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

VI

How Do You Measure Ramp Slope?

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

VII

Program Accessibility v. Facility Accessibility

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

VIII

Takeaways

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