PAEZ, Circuit Judge:
In this case, we must decide whether Title II of the Americans with Disabilities Act ("ADA") requires local governments to provide accessible on-street parking in the absence of regulatory design specifications for on-street parking facilities. We hold that it does.
Robin Fortyune is a paraplegic who uses a wheelchair for mobility. He filed suit against the City of Lomita ("City") in state court, alleging that he experiences "great difficulty, discomfort and, even[] fear for his safety" when frequenting facilities in the City because none of the City's public on-street parking is accessible to people with disabilities. He brought claims under the ADA, 42 U.S.C. §§ 12101 et seq., and the California Disabled Persons Act ("CDPA"), Cal. Civ.Code §§ 54 et seq.
The City removed the case to federal court, and moved to dismiss Fortyune's complaint under Federal Rule of Civil Procedure 12(b)(6). The City argued that, absent the adoption of ADA implementing regulations specifically targeted toward on-street parking, it is not required to provide accessible on-street parking. The district court denied the motion to dismiss, concluding that "the broad language of the ADA requires public entities to ensure that all services, including on-street parking, are reasonably accessible to and usable by individuals with disabilities."
We have jurisdiction pursuant to 28 U.S.C. § 1292(b).
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). The statute provides a "comprehensive," "broad mandate" to eliminate discrimination against disabled persons, addressing both "out-right intentional exclusion" as well as the "failure to make modifications to existing facilities and practices." Id. at 675, 121 S.Ct. 1879 (internal quotation marks and citations omitted); see also Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir.2014); 42 U.S.C. § 12101(b)(1). "We construe the language of the ADA broadly to advance its remedial purpose." Cohen, 754 F.3d at 695.
Title II of the ADA, the provision at issue in this case, applies to state and local governments. Id. at 694; 42 U.S.C. § 12131. It provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The ADA was modeled on the Rehabilitation Act, which prohibited any "program or activity" that received federal funds from discriminating against disabled individuals. 29 U.S.C. § 794(a); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1216 n. 27 (9th Cir.2008); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch ("BAART"), 179 F.3d 725, 731-32 (9th Cir. 1999). The Rehabilitation Act defines "program or activity" as "all of the operations of ... a department, agency, special purpose district, or other instrumentality of a State or of a local government." 29 U.S.C. § 794(b). We have recognized that
Recognizing the broad reach of the ADA, we have held that Title II requires public entities to maintain accessible public sidewalks, notwithstanding the fact that no implementing regulations specifically addressed sidewalks. Id. at 1076-78. In Barden, we explained that local governments must maintain accessible sidewalks because "maintaining public sidewalks is a normal function of a city and `without a doubt something that the City does.'" Id. at 1176 (brackets omitted) (quoting Hason v. Med. Bd., 279 F.3d 1167, 1173 (9th Cir.2002)). The same reasoning leads us to conclude that local governments must maintain accessible on-street public parking.
The City argues that Barden is distinguishable because, in that case, existing regulations concerning curb ramps clearly contemplated sidewalk accessibility. Here, however, the City contends that no existing regulation implicates on-street parking. The City's argument fails for several reasons. First, although the Barden court noted that its conclusion was "consistent with" an existing curb ramp regulation, its holding was based on the text of the ADA. See id. at 1076-77 (interpreting the phrase "services, programs, or activities" and considering similar text in the Rehabilitation Act). Second, we have previously recognized that, as a general matter, the lack of specific regulations cannot eliminate a statutory obligation. See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444-45 (9th Cir.1994) (explaining that although the Occupational Safety and Health Act contemplated that the Secretary of Labor would promulgate specific safety standards, such regulations could only "amplify and augment" the statute's general duty clause and their absence did not "displace" the statutory mandate to provide a safe workplace).
Third, existing regulations do require accessible on-street parking. Two regulations in particular apply to public on-street parking. The first is 28 C.F.R. § 35.150, which applies to all existing facilities.
The second regulation, 28 C.F.R. § 35.151, governs only facilities that were constructed or modified after the ADA's effective date. Unlike 28 C.F.R. § 35.150, it requires that "each facility" constructed or altered after June 26, 1992 be "readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.151(a)(1), (b)(1). By its terms, then, this regulation extends to newly constructed or altered on-street parking facilities. The City seeks to avoid this conclusion by pointing out that the technical specifications governing newly constructed or altered facilities are silent with respect to on-street parking. In addition to the general mandate of accessibility set forth in subsections (a)(1) and (b)(1), 28 C.F.R. § 35.151 also requires that newly constructed or altered facilities meet the technical standards set forth in the Uniform Federal Accessibility Standards ("UFAS"), the 1991 Standards for Accessible Design ("1991 Standards"), or the 2010 Standards for Accessible Design ("2010 Standards"). See id. § 35.151(c).
Our interpretation of 28 C.F.R. § 35.151 is also consistent with the DOJ's interpretation. The DOJ issues a Technical Assistance Manual ("TA Manual") to assist individuals and entities to understand their rights and obligations under the ADA.
1994 Supplement to TA Manual, II-6.2100 (citation omitted).
An agency's interpretation of its own regulations is entitled to deference. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The DOJ's interpretation of its ADA implementing regulations is entitled to "`controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir.2008) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). The TA Manual is such "`an interpretation[,]... and, as such, is entitled to significant weight as to the meaning of the regulation[s].'" Id. (quoting Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 875-76 (9th Cir.2004)). Additionally, an agency's interpretation of its own regulations as advanced in an amicus brief is also entitled to deference. Chase Bank, USA, N.A. v. McCoy, 562 U.S. 195, 131 S.Ct. 871, 880-82, 178 L.Ed.2d 716 (2011); Auer, 519 U.S. at 461, 117 S.Ct. 905. Accordingly, even if we had doubts about the applicability of 28 C.F.R. § 35.151 to facilities for which no technical specifications exist, we would be bound to defer to the DOJ's interpretation of the regulation because it is not "plainly erroneous or inconsistent with the regulation." Miller, 536 F.3d at 1028 (internal quotation marks omitted).
The City contends that another DOJ publication, an informal guidance publication entitled "ADA Guide for Small Towns," supports its position.
The City also points to certain text in "Using ADAAG," a 2003 Access Board technical bulletin, that supposedly stands for the proposition that public entities have no obligations under the ADA absent specific technical guidelines.
Id. at 8. Accordingly, the Access Board, like the DOJ, understood the ADA to impose general accessibility requirements on public entities even in the absence of technical specifications for a particular facility. Moreover, even if the bulletin did support the City's position, the Access Board's understanding of the ADAAG is not entitled to any deference. See Miller, 536 F.3d at 1031 ("Whatever the Access Board thought of its own guidelines, the Department of Justice adopted the text of the guidelines themselves, not the Access Board's interpretation of that text.").
Nor are we persuaded that the City should be exempted from the general mandate of the ADA and its implementing regulations simply because the Access Board has proposed guidelines that do contain technical specifications for on-street parking.
Finally, the City's due process argument is unavailing. The City contends that because it was not on notice that accessible on-street parking was required until, at the earliest, the DOJ's amicus brief in this litigation, allowing Fortyune's claims to proceed would violate its right to due process. Entities regulated by administrative agencies have a due process right to fair notice of regulators' requirements. United States v. AMC Entm't, Inc., 549 F.3d 760, 768-70 (9th Cir.2008). Here, however, the DOJ made it known in 1994, in a publicly available supplement to the TA Manual, that public entities have a general obligation to ensure that governmental services are reasonably accessible even when no technical specifications exist for a particular type of facility. 1994 Supplement to TA Manual, II-6.2100. In AMC, we recognized that a significantly less public announcement — the filing of an amicus brief in separate litigation — could provide adequate prospective notice of prohibited conduct. See id. at 770. Consequently, it is simply untrue that the City lacked notice that the ADA's
The text of the ADA, the relevant implementing regulations, and the DOJ's interpretation of its own regulations all lead us to conclude that public entities must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the DOJ has adopted technical specifications for the particular types of facilities involved. Accordingly, we hold that Fortyune has stated claims under the ADA and the CDPA