SAUNDRA BROWN ARMSTRONG, United States District Judge
Plaintiff Ivana Kirola ("Kirola" or "Plaintiff"), a mobility-impaired individual, brings the instant disability access class action on behalf of herself and similarly-situated individuals against Defendants City and County of San Francisco, the Mayor of San Francisco, and members of the Board of Supervisors (collectively "the City"). She alleges that the City discriminates against mobility-impaired persons by failing to eliminate all access barriers from or otherwise ensure accessibility to the City's libraries, swimming pools, parks, and public rights-of-way (i.e., the City's network of sidewalks, curb ramps, cross-walks, and other outdoor pedestrian walkways). She also complains that the City's policies and practices for ensuring access, removing access barriers, and handling public access complaints are deficient.
The operative pleading is the First Amended Complaint ("FAC"), which alleges six claims for relief based on: (1) Title II of the Americans with Disabilities Act of 1990 ("Title II of the ADA" or "Title II"), 42 U.S.C. § 12131-12165; (2) the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794; (3) the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. § 1983; (4) the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code §§ 51; (5) the California Disabled Persons Act ("CDPA"), id. § 54.1; and (6) California Government Code §§ 11135. Dkt. 294. Plaintiff seeks declaratory and injunctive relief only. The Court has subject matter jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331,
The Court previously granted class certification and appointed Kirola as the sole class representative. Dkt. 285. Thereafter, the parties presented their respective cases to the Court during a court trial. Subsequent to trial, the parties submitted post-trial briefing and proposed findings of fact and conclusions of law. Dkt. 614, 616, 617, 618, 632, 634, 635, 636, 646, 662, 681, 683. Separately, the City filed a Post-Trial Motion for Judgment, focusing primarily on whether Kirola has constitutional standing under Article III to pursue any claims on behalf of herself or the class. Dkt. 666, 672, 675. Alternatively, the City contends that even if Kirola has standing, she has failed to demonstrate the substantive merit of any of her claims.
As will be set forth below in the findings of fact and conclusions of law, the Court is persuaded by the City's arguments, and, based on the evidence and testimony presented at trial, finds that Kirola lacks constitutional standing to pursue any claims on behalf of the class. Alternatively, even if Kirola had standing, she has failed to carry her burden of demonstrating, by a preponderance of the evidence, that the City has violated the ADA or any of the other federal and state laws and regulations alleged in the FAC.
"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 ADA is comprised of five titles: Employment (Title I); Public Services (Title II); Public Accommodations and Services Operated by Private Entities (Title III); Telecommunications (Title IV); and Miscellaneous Provisions (Title V). Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1172 (9th Cir.1999). The purpose of the ADA's various provisions is "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2).
This action is premised on Title II of the ADA, which became effective on January 26, 1992, and applies to public entities. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir.1998) (citing §§ 108, 205, Pub. L. No. 101-336). To demonstrate a prima facie case under Section 202 of Title II of the ADA, a plaintiff must show that:
Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir.2014) (discussing requirements of a claim brought under 42 U.S.C. § 12132). "This prohibition against discrimination is universally understood as a requirement to provide `meaningful access.'" Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir.2009). "An individual is excluded from participation in or denied the benefits of a public program if `a public entity's facilities are inaccessible to or unusable by individuals with disabilities.'" Daubert v. Lindsay Unified
ADA regulations recognize that "in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services." Tennessee v. Lane, 541 U.S. 509, 532, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Accordingly, the regulations promulgated by the United States Attorney General to implement the requirements of Title II differentiate between structures built before the effective date of the ADA and those built or altered after.
Existing facilities constructed prior to January 26, 1992, are subject to 28 C.F.R. § 35.150, which requires only "
"New construction and alterations" commenced after January 26, 1992, are subject to more exacting requirements. Specifically, under 28 C.F.R. § 35.151, "[e]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is
The original complaint named three plaintiffs: Kirola; Elizabeth Elftman ("Elftman"); and Michael Kwok ("Kwok") (collectively, "Plaintiffs"). Dkt. 1. Three years later on February 9, 2010, Plaintiffs moved for leave to file an amended complaint, requesting, inter alia, to dismiss
On March 2, 2010 — before the Court ruled on their motion for leave to amend — Plaintiffs filed a motion for class certification under Federal Rule of Civil Procedure 23(a) and (b)(2), which sought to appoint both Kirola and Pillay as class representatives, even though Pillay was not a party to the action. Dkt. 187. Plaintiffs did not seek to have Elftman appointed as a class representative. Id.; Dkt. 1; Dkt. 121, Exh. A.
On April 12, 2010, the Court granted in part and denied in part the motion for leave to amend. Dkt. 238. The Court allowed Plaintiffs to narrow the class definition alleged in the initial complaint, dismiss Kwok as a named plaintiff, and clarify their allegations concerning the City's alleged failure to comply with California Government Code § 11135. The Court, however, denied their request to join Pillay, finding that Plaintiffs had failed to establish good cause to add her as a party-plaintiff. Id. Consistent with the Court's ruling, Plaintiffs filed their FAC on June 24, 2010. Dkt. 238, 294.
During the interim, on June 7, 2010, the Court granted Plaintiffs' motion for class certification, and certified the following class pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2):
Dkt. 285, 7:19-25 (emphasis added). Having previously denied Plaintiffs' request to join Pillay as an additional party-plaintiff, the Court granted their remaining request to appoint Kirola as the class representative. Id., 7:26.
In the course of its briefing on the class certification motion, the City argued, among other things, that Kirola lacked standing to seek injunctive relief with respect to the alleged disability access claims at issue and therefore was not an adequate class representative. Dkt. 245, 20:7:14-21:2. At the motion hearing on May 18, 2010, the City withdrew its challenge to Kirola's adequacy as a class representative. Dkt. 285, 3:18-20. As such, in its June 7, 2010 Order Granting Plaintiffs' Motion for Class Certification, the Court did not address Kirola's standing, and, importantly, made "no finding as to the type or scope of relief [Kirola could] seek or obtain on behalf of the class[.]" Id., 4:21-22. Rather, the Court ruled that "[s]uch determinations [would] be made following trial based upon the evidence presented and the relief requested." Id., 4:23-24.
The parties presented their respective cases over the course of a five-week court trial. Cumulatively, thirty-six lay and expert witnesses, along with numerous exhibits in support of the parties' respective positions, were presented. Kirola testified, and presented the testimony of six class members and mothers of class members; several City employees as adverse witnesses; four accessibility experts; and two experts in other areas. The City presented testimony from members of the Mayor's Office on Disability ("MOD"), employees
Subsequent to trial, the Court directed the parties to meet and confer regarding the course of further proceedings, and to thereafter submit a Joint Statement Re Further Proceedings ("Joint Statement"). Dkt. 659, 1:22-26, 2:5-8. In the Joint Statement, Plaintiff alleges that she "had encountered, and was continuing to encounter on a daily, regular or ongoing basis, numerous disability access barriers that significantly limited, interfered with, and obstructed her access to the City's pedestrian rights of way, parks, pools and libraries in violation of the meaningful access standard." Dkt. 662, 10:9-13. She also claims to have "a real and immediate threat of repeated injury" stemming from eleven policies and procedures, identified as follows:
Dkt. 662, 13:15-11.
The Court now makes the following findings of fact pursuant to Federal Rule of Civil Procedure 52(a)(1). These findings are based on the evidence and testimony presented at trial, the Court's assessment of the witnesses' credibility, and the legal arguments presented by counsel. To the extent that any of the findings of fact are more appropriately construed as conclusions of law, or vice-versa, they shall be deemed as such.
In this section, the Court will assess: (1) the City's infrastructure to ensure accessibility for disabled persons to its programs, services and activities, as they relate to the public right-of-way system and the library, aquatics and RecPark programs; (2) the accessibility of the aforementioned programs, services and activities; (3) the City's grievance procedure for making accessibility complaints; and (4) the credibility of Kirola, class members, and the parties' experts as their testimony relates to the claims alleged in this action.
1. According to the 2000 census, approximately 20% of the City of San Francisco's population (150,000 people) live with disabilities. The City's disabled population includes individuals with mobility impairments, cognitive and psychiatric challenges, sensory impairments and self-care challenges. Reporter's Transcript ("RT") 1596:6-22, 2489:12-20; DTX H27 [11, 14-15].
2. To ensure that disabled persons have meaningful access to its services and programs consistent with the ADA and state law, the City has created a sophisticated and robust infrastructure, which includes the establishment of various departments, positions, policies, and programs, which are overseen by MOD.
3. The City created MOD to ensure that every program, service, benefit, activity and facility operated or funded by the City is fully accessible to, and usable by, people with disabilities. RT 1561:16-18; 1566:8-1567:9; DTX A35.
4. MOD is charged with representing the needs of the disabled community. RT 1592:6-22. MOD staff regularly work with and receive input from a variety of organizations devoted to disabled access. RT 1596:24-1597:16.
5. Susan Mizner ("Mizner") has been Director of MOD since 2003. RT 561:1421. Mizner oversees a staff of seven full-time employees, all of whom have disabilities and many years of experience advocating for the disabled.
7. John Paul Scott ("Scott") is MOD's Deputy Director for Physical Access.
8. Jim Whipple ("Whipple") and Carla Johnson serve as MOD access compliance officers who conduct plan and site reviews, and Ken Stein is MOD's Program Administrator. RT 1588:13-1592:5.
9. As part of its efforts to promote access for disabled persons, MOD maintains a public website that provides extensive information on various topics, including: (1) new developments; (2) architectural access; (3) the City's review process for ensuring that publicly-funded facilities comply with access laws; (4) the City's ADA transition plans; (5) the rights of persons with disabilities under the ADA; and (6) the City's grievance procedure. RT 1565:14-19, 1567:16-1588:4, 1571:24-1574:6; DTX A35.
10. MOD has also prepared brochures and other materials to publicize its services and to inform the disabled population of their access rights. RT 1575:20-1576:17; 1578:241579:21; see, e.g., DTX A31; DTX E27 [000017].
11. Since 1998, the Mayor's Disability Council ("MDC") has advised the Mayor on disability issues and worked with MOD on access compliance.
12. MDC consists of between nine to eleven appointed members from the disabled community and serves as an advisory body to the Mayor and MOD.
13. The purpose of the council is to ensure ADA compliance and to provide a public forum to discuss disability issues. RT 1593:10-2; DTX A35 [000003].
14. MDC is MOD's primary liaison to the City's disabled community and provides guidance on a variety of disability issues, including website guidelines, transportation, housing, and priorities for ADA transition plan projects. RT 1593:10-17, 1595:14-1596:13.
15. Mizner serves as the Citywide ADA Coordinator.
16. Every City department with over fifty employees has a designated ADA Coordinator responsible for investigating disability access complaints and serving as a resource for the department on disability access issues. RT 1583:7-1584:9, 1854:241856:21; see also DTX A35 [000110-113].
17. MOD works closely with the ADA Coordinators for the departments involved in this action; namely, DPW and RecPark, and the San Francisco Public Library ("Library"). RT 1857:21-1859:6, 1861:2-1863:6.
18. MOD provides technical assistance and support to all City departments and employees regarding accommodations necessary to ensure access to City services, programs, and activities.
19. In addition, MOD regularly conducts training for virtually all City departments on matters such as disability rights and access requirements. RT 1852:11854:7, 1584:22-1586:7, 1839:20-1840:19; DTX A31 [000003]; see, e.g., DTX E45. The trainings emphasize, among other things, the importance of maintaining accessible features. RT 1863:9-1865:3; DTX E45 [000022-023]. RT 1849:4-1850:23. MOD also provides specific training for ADA Coordinators. RT 1854:16-1856:3; DTX E27; DTX E47.
20. MOD oversees a citywide grievance procedure for handling public complaints regarding disabled access to its facilities, programs and services. Instructions regarding this procedure are contained on a website operated by MOD which explains
21. Upon receipt, MOD transmits a copy of the complaint to the appropriate ADA Coordinator. The assigned ADA Coordinator, in turn, conducts an investigation, and, in the course of investigating and responding to the complaint, may seek assistance from MOD or the City Attorney. DTX A35 [000105]; RT 1866:19-25.
22. Within thirty days of receiving a complaint, a written response, approved by MOD and signed by both the ADA Coordinator and the department head, is sent to the complainant. DTX A35 [000105]. The City responds to complaints received "fairly consistently" within thirty days and handles a significant number of complaints through its grievance procedure. RT 1711:18-20-1712:8. However, depending on the complexity of the issue, some complaints take longer to resolve. RT 2001:2-7. MOD monitors the grievances received to identify trends and develop programs to improve access. RT 1869:6-21.
23. During the three year period prior to trial, 40 percent of the grievances received by MOD were related to housing issues, 25 to 30 percent were related to public transportation and paratransit, and 20 percent were related to physical access (the majority of which were curb ramp requests). RT 1868:9-1869:5.
24. Fraguli oversees the City's grievance procedure. RT 1866:11-14. Between the time she joined MOD in 2006 and trial, Fraguli received only one complaint related to a library (pertaining to assistive technology) and a "few" complaints related to physical access in RecPark facilities, which were resolved "fairly quickly." RT 1869:22-1870:13. She has never received a complaint from Kirola or any testifying class member. RT 1870:14-1871:9.
25. Aside from Fraguli, ADA Coordinators at the City's various departments also receive and address access complaints and/or requests regarding their respective departments. See, e.g., RT 2253:22-2254:24 (complaints regarding access to libraries), 2306:3-2309:14, 2336:16-18 (complaints regarding access to RecPark activities, facilities, or programs), 1999:12-2001:1 (complaints regarding access to the City's public right-of-way). MOD receives a monthly report indicating the types of complaints received by the various City departments and whether any departments have been dilatory in issuing responses. RT 1869:6-17.
26. Curb ramp requests or complaints may be submitted through the complaint form on MOD's website, by telephone, written correspondence, or e-mail, either to MOD or DPW, or through the City's 3-1-1 system (which is used to request City services). RT 1619:15-23, 2416:23-2417:2, 2727:13-17.
27. Curb ramp requests submitted through the City's grievance procedure trigger an investigation by DPW. If appropriate, DPW coordinates with other City departments or offices as needed, assigns an engineer to design the individual curb ramp, and works with MOD to prioritize the inquiry list based on the date each request was received and the priorities set forth in the City's Curb Ramp and Sidewalk Transition Plan, i.e., the ADA transition plan specific to its public right-of-way system at issue in this action. RT 2000:718, 2385:14-2386:22; DTX A15.
28. The City also proactively solicits curb ramp requests. For instance, the City became concerned that it had received a disproportionally low number of
29. At the time of trial, the City's curb ramp request log contained outstanding curb ramp requests for 124 intersections across the City. RT 2440:3-4. Of those 124 intersections, 44 corresponded to requests from individuals with disabilities and were therefore categorized as "higher priority" requests. RT 2440:4-6. At the time of trial, the City was in either the design or construction phase on fully-funded curb ramp projects at 132 intersections. RT 2440:7-10.
30. William Hecker ("Hecker"), one of the City's program access experts, opined that the City's grievance procedure is consistent with the requirements and provisions of the ADA and its regulations. RT 2727:5-19.
31. Funding for access improvements is governed by the City's Capital Plan. The Capital Plan for Fiscal Years 2012 to 2021 allocates a total of $177 million in fully-funded capital spending over the 10-year period to disability access improvements, which includes $24 million for facility improvements and $153 million for public right-of-way improvements. RT 1543:2-6; PTX 4057[7]. Considering other categories of spending that would include disability access improvements (such as street repaving projects, earthquake and public safety improvements, facility renewals, and critical deferred maintenance), the City's Capital Planning department estimated the total amount of planned ADA spending from 2012 to 2021 to be approximately $670 million. RT 1544:6-14, 1543:7-1544:4, 1539:19-1540:19.
32. DPW oversees the City's public right-of-way network, which consists of approximately 2,000 miles of sidewalks, 27,585 street corners, and roughly 7,200 intersections. RT 2391:23-25, 2447:6-18.
33. DPW's Disability Access Coordinator is responsible for monitoring access issues related to the public right-of-way; reviewing publicly-funded construction projects designed by or contracted through DPW; training staff on access issues; and serving as the key DPW contact for individuals who seek information regarding accessibility or who submit access complaints or curb ramps requests. RT 1910:18-1911:16, 2443:25-2444:10.
34. Separate from DPW, the City's Municipal Transportation Agency, provides paratransit services and public transportation as important components of an accessible public right-of-way. RT 1636:4-12. The City operates and subsidizes a paratransit system that offers van and taxi service for persons with disabilities who are unable to use public transportation. RT 1634:18-1635:1, 1635:21-1636:3.
35. The City has enacted procedures and policies setting standards for new construction and alterations, as well as ensuring program access with respect to existing pathways, both of which are discussed below.
36. The City began installing curb ramps in the 1970s, and created formal
37. In 1989, DPW established its Curb Ramp Program and developed priorities for the design and installation of curb ramps based on input from the disabled community. DTX H06 [000959].
38. In 1994, the City revised its curb ramp design standards to provide more detailed specifications. RT 2467:21-2471:20. In particular, new curb ramp standards were developed in order to address conflicting federal and state requirements regarding use of a half-inch curb lip at the point where the ramp meets the street. RT 1994:18-1995:4. At that time, state accessibility standards required a half-inch lip at the base of the curb ramp which could be detected by a visually-impaired person using a cane. Federal law, however, specified flush or smooth transitions. Accordingly, non-federally-funded curb ramps were built with a lip, while federally-funded curb ramps were not. RT 1993:21-1995:22, 1608:13-1609:4; DTX H05. In 2004, the City updated its curb ramp design standards, which eliminated use of the half-inch lip.
39. In 1995, DPW issued Order No. 169,270, which memorialized the City's plan to install curb ramps in compliance with disability access laws, while recognizing that funding constraints might delay full implementation of this policy. DTX G18. DPW prioritizes curb ramp installation as follows: (1) replace existing curb ramps in poor condition; (2) install curb ramps where none exist; (3) provide for a second curb ramp, where feasible, on corners with a single curb ramp; (4) construct or reconstruct curb ramps in locations with physical or other constraints; and (5) reconstruct curb ramps that are safe but that do not meet the City's construction standards. RT 1951:8-1952:15; DTX G18.
40. In or about May 2004, DPW issued Order No. 175,387, which adopted the City's design standards requiring the use of bi-directional curb ramps (i.e., a ramp aligned in parallel to the cross-walk) or at least one curb ramp per corner. RT 1978:12-1980:1, 1981:16-1990:19; DTX G07, DTX H04 [000002, 000004]. Although bi-directional curb ramps are not required by the ADA, the City installs them to enhance access for disabled individuals. Bi-directional curb ramps are preferred by the disabled community, including Kirola and testifying class members. RT 552:12-553:20, 542:8-543:13, 875:14-876:9, 1005:4-14, 1007:7-16, 1025:9-18, 1384:13-21, 2066:24-2067:22.
41. City Procedure No. 10.6.2 requires that: (1) curb ramps shall be designed in accordance with DPW Order No. 175,387; (2) any deviations must be approved; and (3) curb ramp designers must coordinate with other City departments and third parties. RT 2381:4-2385:4; DTX A41.
42. When installing curb ramps, the City evaluates the entire intersection to ensure accessibility. Curb ramps will be constructed to current standards, if necessary, at all corners of the intersection. RT 2376:6-17. The City's design standards ensure an accessible path of travel in traffic islands, medians, and trackways within the street. RT 1992:11-1993:9; DTX H07.
44. Since 1989, the City has required that when roads are paved and the paving extends into an intersection (including the cross-walk), curb ramps are constructed or reconstructed if they do not meet the City's current curb ramp design standards. RT 2471:22-2472:10; 2473:4-12; 2426:2-2427:4. This practice is memorialized in the DPW's Guidelines for Paving and Accessibility Compliance ("Paving Guidelines"). DTX N23 [000003]; RT 2426:9-2429:16, 2471:22-2481:8.
45. The Paving Guidelines allow the City to defer curb ramp installation in connection with a street paving project for up to twenty-four months when a pre-planned project would demolish the newly constructed curb ramp within that time period. DTX N23 [000003]. If the subsequent project is delayed or discontinued, the curb ramps at issue are to be installed immediately. RT 2428:19-2429:16, 2445:11-15; DTX N23 [000003].
46. The City's Bureau of Sewer and Street Repair ("Bureau") typically repaves City blocks one block at a time, without affecting the crosswalk. In these cases, the Bureau's obligation to install curb ramps is not triggered. RT 2480:4-2481:8. No evidence was presented showing that the City has a policy and/or practice of intentionally avoiding crosswalks in order to evade an obligation to construct curb ramps.
47. The City's first curb ramp transition plan in Fiscal Year ("FY") 1992/1993 estimated 52,000 curb ramps were needed citywide. RT 1950:3-24; DTX H20 [000959]. The City updated its transition plan in 1998 and again in FY 2007/2008. RT 1951:8-1952:15; DTX H20; PTX 22. The FY 2007/2008 amendments, which are at issue in this action, are set forth in the Curb Ramp and Sidewalk Transition Plan. PTX 22.
48. One of the goals of the Curb Ramp and Sidewalk Transition Plan is "curb ramp saturation" — that is, to construct a curb ramp compliant with its current design standards at the end of every pedestrian crossing or least one curb ramp per corner. This approach often involves installing bi-directional curb ramps at every corner. RT 2390:1018.
49. The 2008 revisions organized the priorities outlined in DPW Order No. 169,270 into a "priority matrix." DTX A35 [000023]. The priority matrix prioritizes — installations/upgrades based on: (1) locations requested by citizens; (2) locations serving government offices and public facilities; (3) locations serving public transportation; (4) locations serving public accommodations, employers, and commercial districts; and (5) warehouse districts and residential areas. RT 1441:11-1442:15, 1617:2-1619:13, 1618:4-1619:13, 1956:6-1958:16, 2416:19-22; DTX A35 [000023].
50. DPW employs a curb ramp grading or evaluation system to prioritize curb ramp repair and replacement. RT 1606:23-1607:22, 1615:10-24. In establishing the curb ramp grading system, the City solicited and incorporated recommendations from the MDC's Physical Access Committee and the City's disabled community to establish the grading system. RT 1607:18-22, 1608:8-1614:12.
51. Under the curb ramp grading system, each existing curb ramp is assigned a "condition score" based on a 100-point scale. RT 1607:2-13. Each curb ramp begins with a 100 point score, from which a
52. The City presumes that curb ramps with a score greater than 75 are good and usable; curb ramps with a score of between 70 and 75 are low priorities for replacement; and curb ramps with a score of 69 or below are high priorities for replacement. RT 1615:14-24.
53. The City tracks citizen requests, curb ramp attributes, and curb ramp condition scores through a Curb Ramp Information System ("CRIS") database.
54. The City also uses a geographic information service ("GIS") to map citywide curb ramp locations by grade based on the data contained within the CRIS database. RT 1621:2-25; DTX F11. These maps include public transit stops, civic buildings, health facilities, libraries, police stations, cultural centers, and public schools. RT 1621:21622:10; DTX F11.
55. At the time the current Curb Ramp and Sidewalk Transition Plan was drafted, the City had yet to identify every location where a new or upgraded curb ramp was required to achieve curb ramp saturation. RT 2390:19-2391:11. By January 2011, however, the City had surveyed all potential curb ramp locations and uploaded information about each location into the CRIS database. More specifically, the survey confirmed whether there was an existing curb ramp at the location, the condition of any existing curb ramp, and whether the location actually served a pedestrian crossing and thus warranted installation of a curb ramp. RT 2395:22-2396:23.
56. Based on information in its CRIS database, the City has determined that 23,401 curb ramps are needed to meet the City's goal of curb ramp saturation. RT 2410:19-2411:21.
57. Consistent with its Curb Ramp and Sidewalk Transition Plan, the City installs approximately 1,200 new curb ramps each year. RT 2785:17-2787:13, 2789:3-2790:18; PTX 0022 [003798].
58. The Curb Ramp and Sidewalk Transition Plan does not include a specific deadline for achieving curb ramp saturation. RT 2015:16-29, 2413:17-2414:1. However, at the time of trial, the City estimated that it would complete construction of the 23,401 curb ramps by Fiscal Year 2028/2029. RT 2410:19-2414:1. That projection, however, was based on an overestimation of the number of curb ramps needed for curb ramp saturation. RT 2396:19-2397:7, 2401:14-16, 2403:12-2404:9. The City now projects that, taking into account accelerated curb ramp installation, curb ramp saturation can be achieved by Fiscal Year 2026/2027. Dkt. 657, 4:12-13.
59. The determination of the particular curb ramps to be constructed in the upcoming fiscal year is based on available and procured funds. RT 1637:4-1638:6, 2027:10-12. The City prioritizes construction
60. At the time of trial, the Curb Ramp and Sidewalk Transition Plan did not explicitly include the City's crosswalks. RT 2013:13-22. The City nevertheless has initiated a pilot project pursuant to which City engineers are to evaluate the accessibility of crosswalks when constructing corresponding curb ramps in order to determine whether the crosswalk contains cracks, potholes, or other barriers that adversely impact the crosswalk's accessibility. RT 2430:13-22. The City plans to incorporate the results of the pilot project into its Curb Ramp and Sidewalk Transition Plan. RT 2430:9-2431:19. The City also has developed a crosswalk assessment checklist for use in the pilot study and implementation into the Curb Ramp and Sidewalk Transition Plan. RT 2431:2-3; DTX Z58.
61. The Curb Ramp and Sidewalk Transition Plan includes a Sidewalk Inspection and Repair Program ("SIRP"), first implemented in FY 2006/2007, which governs the maintenance of the City's 2,000 miles of sidewalks. RT1974:7-21, 2447:6-18; PTX 22.
62. Under SIRP, the City proactively inspects every city block on a twenty-five year cycle, notifies the responsible parties of any access barriers identified, and ensures the remediation of these barriers. RT 1974:7-21, 2447:12-18; PTX 0022 [18-20]. DPW determined that a twenty-five year inspection cycle is reasonable, given the size of San Francisco, the fact that the inspection program operates in tandem with a grievance procedure, fiscal and staffing constraints, and the prioritization of repairs where pedestrian volume is the greatest. RT 1974:3-21, 2453:9-17.
63. Under SIRP, the City prioritizes sidewalk inspection and repair along city blocks with high pedestrian usage as characterized by or based on: (1) commercial districts; (2) public transportation routes; (3) proximity to schools, public facilities, hospitals, or senior centers; and (4) population density. RT 1974:22-1977:9, 2448:11-22; PXT 0022 [18-20]; DTX AA23. Consistent with guidance from the Department of Justice ("DOJ"), the City also prioritizes locations based on citizen requests, requiring that requests from the disabled community be given top priority. RT 1974:22-1976:2, 2450:12-24.
64. City policy specifies that private property owners are responsible for the repair and maintenance of sidewalk areas in front of their property. RT 1101:1-4. Once the City identifies a defective sidewalk and sends the property owner a notice to repair, the owner has thirty days to commence repairs. RT 1101:14-17. The City has endeavored to streamline the process by incenting property owners to use a City contractor in exchange for a waiver of permit fees. RT 2451:3-2452:4. If the owner fails to repair the sidewalk after having been duly notified, the City is entitled to perform the repair and invoice the property owner for the cost of inspection and abatement. RT 2451:11-15. The City's practice at the time of trial was to bill property owners through property liens. RT 2451:1516.
65. The SIRP, which is considered a "proactive" program, operates in conjunction with a "reactive" program known as the Accelerated Sidewalk Abatement Program ("ASAP"), whereby the City responds directly to complaints or requests
66. In addition to the foregoing, the City has adopted various other policies to ensure accessibility of the City's sidewalks. RT 1959:13-1960:2, 2443:25-2444:10. These policies include: guidelines regarding the placement of barriers at construction sites; guidelines regarding the placement of scaffolding; permit requirements regarding the use of tables and chairs on the sidewalk; requirements regarding temporary occupancy of the public right-of-way; guidelines regarding displaying merchandise on the sidewalk; regulations regarding tree planting and maintenance; and requirements regarding slip-resistant metal covers and grates. RT 1960:7-1971:9; DTX A9; DTX A21; DTX G19; DTX F43; DTX F44; DTX F45; DTX G17; DTX F48; DTX G10.
67. Separate and apart from its public right-of-way system, the City operates a number of programs, i.e., aquatic, library and RecPark programs, which are offered through various facilities located throughout San Francisco.
68. The library program is provided through the Main Library and twenty-seven branch libraries located throughout San Francisco. RT 2222:13-15.
69. The aquatic program is provided through nine swimming pools, RT 2763:212765:5.
70. The RecPark program is provided through approximately 220 parks spanning 4,200 acres of park space and 400 structures (i.e., clubhouses, recreation centers, etc.) thereon. RT 2264:13-17, 2302:12-16.
71. The City has enacted procedures and policies to ensure meaningful access, including program access, to its aquatic, library and RecPark programs, as summarized below.
72. In 2003, MOD hired Logan Hopper ("Hopper") as a facilities transition plan consultant. RT 1603:12-18. Hopper surveyed approximately 700 facilities across the City and prepared a draft transition plan. The draft transition plan identified the "essential — services" offered by various city departments, including Library and RecPark, and estimated costs and timelines for removing the identified access barriers. RT 1603:22-1604:3, 1603:22-1604:3; PTX 0034 [000470, 000476, 000522-523, 000528-538].
73. Mizner, the Director of MOD, testified that because Hopper was not familiar with construction practices in San Francisco, she felt that he had significantly underestimated both the projected cost and the amount of time necessary to complete a particular project. RT 1603:12-1604:18. Accordingly, Mizner recruited Scott to lead the development of the City's facilities transition plan. RT 1604:14-18, 1770:10-12, 1777:211779:11. Scott, who had been the ADA Coordinator for the Port of San Francisco, is a licensed architect with more than twenty years of experience working on architectural access issues and is a former member of the U.S. Access Board's Recreation Access Advisory Committee
74. In 2007, under Scott's leadership, the City developed its facilities transition plan known as the Uniform Physical Access Strategy ("UPhAS"). Scott's plan is based on the extensive work performed by Hopper and Gilda Puente Peters, another access consultant retained by the City, the capital plans of various City departments such as Library and Rec Park, and out-reach to the disabled community to understand their priorities. RT 1452:20-23, 1779:12-1780:9; 1784:7-22; DTX B07, PTX 0035.
75. UPhAS governs the City's libraries and Rec Park facilities. RT 1791:151792:15; 1797:20-1798:5. The plan seeks to provide maximum access for the disabled to each City building and facility, RT 1785:14-1786:22; prioritize physical access solutions and limit the use of a program access approach (which allows a city to move programs to other sites rather than make access improvements), RT 1789:6-19; and offer programs and services in the most integrated setting possible, RT 1789:20-1790:10; DTX B07 [005317]). UPhAS calls for input from the public and MOD, as well as an annual assessment of access priorities. RT 1786:23-17878:4; PTX 0040.
76. UPhAS has no schedule or deadline for the removal of access barriers, but instead, sets funding targets to facilitate their removal. RT 1456:18-1457:15, 123:11-12, 612:2-9; PTX 0040. As such, the City's plan for implementing UPhAS changes annually, depending on funding. RT 612:2-4.
77. The City constantly re-evaluates UPhAS by tracking projects as they are created, built and completed. RT 1791:2-1791:14. Scott uses complex, color-coded spreadsheets and maps to track the status of each facility evaluated as part of the Hopper surveys and to graphically represent the accessibility of City facilities. RT 1798:6-1799:25; 1801:24-1802:2; 1810:6-25; PTX B39. Each color signifies a different status. RT 1799:425. Blue dots "signify a building that had undergone new construction or alterations," based on a post-2000 capital improvement project. RT 1463:8-1464:12; see, e.g., PTX 0148A. For instance, one of the maps shows all of the City's swimming pools located in San Francisco. DTX F16. Some pools are identified by a blue dot, while others are denoted with a red dot, which signifies "limited access." Id.
78. Trial testimony established that a blue dot was not intended to suggest that every element of the facility was 100 percent compliant with all applicable facilities access regulations; rather, it signifies that the facility was fulfilling the City's program access intent under UPhAS. RT 1464:14-23. In other words, a blue dot indicates only that the facility offers some accessible program or programs, and not necessarily that every physical element of the facility is compliant with disability access regulations.
79. Through UPhAS, the City seeks to attain a level of access
80. Federal regulations promulgated to enforce the ADA require that each new facility or part of a facility constructed or altered after January 26, 1992, conform to either (1) the ADAAG (i.e., ADA Accessibility Guidelines for Buildings and Facilities) or (2) the UFAS, thereby allowing public entities to choose between the two accessibility standards. See 28 C.F.R. § 35.151.
81. The City has elected to use ADAAG as its standard for ensuring that newly constructed or altered facilities comply with federal access laws. RT 1919:20-24.
82. Since June 22, 1998, the City has required that all projects involving new construction or alterations of a building funded, in whole or in part, by the City, undergo review by City staff to ensure compliance with disability access laws. RT 1568:111569:24; 1914:17-1917:5; 1918:12-22; 1919:6-19; DTX P11; DTX A35 [000126-141]. To that end, City staff members regularly meet with architectural teams during the planning and design stage, review construction plans before permits are issued, visit sites during the construction process, and conduct post-construction field inspections to ensure access compliance. RT 1744:19-1748:15, 1901:15-1903:22, 1914:17-1917:5, 1918:12-22, 1919:619, 1568:11-1569:24; DTX P11; DTX A35 [000126-141].
83. The City also requires that sidewalks and curb ramps adjacent to newly constructed or altered City buildings be accessible to persons with disabilities. As a result, whenever a City facility is constructed or altered, the City evaluates the condition of the sidewalk and curb ramps bounding the perimeter of the project site, evaluates the path of travel from the facility to the public right-of-way, nearby parking and public transportation, and corrects any access problems identified. RT 1936:4-1938:11.
84. In January 2010, DPW adopted and implemented Procedure 9.8.24, which is a written accessibility compliance procedure that sets forth the review process for all projects designed by or contracted through DPW to ensure that all construction plans and completed facilities meet applicable access regulations and City standards. RT 1920:241921:24; DTX A14.
85. Procedure 9.8.24 requires DPW Disability Access Coordinator to conduct: (1) accessibility reviews during the planning and design of DPW-managed City projects, which includes the review of construction drawings and plans prior to submission to the Department of Building Inspection; (2) accessibility reviews during construction; and (3) post-construction inspections for disability access compliance before the building is certified for occupancy. DTX A14; RT 1921:25-1935:19; DTX J21; DTX K10. Publicly-funded projects reviewed by MOD undergo similar access reviews. RT 1742:23-1743:6, 1743:16-1748:15, 1901:15-1904:8. The Department of Building Inspection will not issue a building permit, or certify a project as complete, without written approval from MOD's compliance officers for each stage of design and construction. RT 1747:1-1748:15, 1901:15-1904:8.
86. Hecker opined that the City staff members responsible for design and construction review of publicly-funded projects are "well qualified, competent, detail-oriented professionals that really understand the accessibility requirements of the ADA." RT 2729:17-2730:3. The Court finds Hecker, who serves as a consultant to the DOJ in ADA enforcement actions, to be a credible witness and credits his testimony accordingly. RT 2720:6-2721:15.
87. In addition to the City's public right-of-way system, Kirola challenges the City's compliance with Title II of the ADA with respect to its swimming pools, libraries and parks. These facilities are the means through which the City provides its aquatic program, library program and RecPark program, respectively.
88. The City's aquatic program is provided through nine public swimming pools. Six of the nine pools have been renovated and made accessible. RT 2767:8-2769:17; DTX F16.
89. Wood credibly opined that renovated pools have the features necessary to provide program access, namely: (1) an accessible route from the property line to the building; (2) an accessible entry; (3) an accessible check-in counter; (4) accessible signage; (5) accessible ramps or curb ramps, wherever necessary; (6) accessible toilets; (7) accessible showers; (8) accessible locker rooms; and (9) transfer lifts to assist individuals with mobility impairments to get into and out of the pool. RT 2136:7-2137:5.
90. Balboa Pool, Garfield Pool and Rossi Pool are coded with red dots, meaning that they are "limited access" pools. DTX F16. However, at the time of trial, a barrier removal project was underway at Garfield Pool, RT 1813:13-1814:4, and Rossi Pool and Balboa Pool have since been scheduled for barrier removal, Dkt. 658-1.
91. Hecker credibly opined that the number and distribution of accessible pools (six out of nine) is sufficient to provide program access for the City's aquatic program. RT 2767:8-2769:17; DTX F16.
92. The City's library program is provided through its Main Library and twenty-seven branch libraries. RT 2222:13-15; DTX 132.
93. In 2000, the City embarked on a $153 million Branch Library Improvement Program ("BLIP"), a program largely funded by a voter-approved $106 million bond measure. RT 2222:16-2223:3; DTX C37; PTX 4057 [000113-114].
94. BLIP's express priorities are to ensure that twenty-four of the City's branch libraries are ADA compliant and seismically retrofitted. RT 2222:16-2223:3, 2228:252229:9; DTX C37; DTX D1; DTX F22; PTX 4057 [00118]; PTX 0045[72].
95. As of April 29, 2011, the City had completed construction and/or renovation of seventeen of the twenty-four branch libraries covered under BLIP. The City anticipated completing work at five additional branch libraries between May and September of 2011. As to the two remaining projects, one was under construction at the time of trial and the other was anticipated to conclude in 2014. RT 2227:7-21; DTX I32.
96. Kevin Wesley Jensen ("Jensen"), DPW's Disability Access Coordinator, conducted disability access reviews pursuant to Procedure 9.8.24 for all BLIP projects,
97. On a number of occasions, including one involving the Glen Park Branch Library, Jensen found that the construction work did not meet access requirements. In those instances, he withheld occupancy approval and required the library to correct the deficiencies before opening the branch location in question to the public. RT 2232:82233:13.
98. Jensen also evaluated the path of travel from each branch library to the public right-of-way, nearby parking and public transportation. Where necessary, he implemented access improvements, including the repair or replacement of sidewalks. RT 1943:81945:17.
99. In addition to the above, the City has undertaken additional efforts to ensure accessibility of its libraries. For example, the Library employs two dedicated accessibility coordinators — one who specializes in programmatic access and who trains staff on a variety of issues related to accessibility, and another who specializes in ensuring that library facilities are physically accessible. RT 2224:8-23.
100. Library staff use a Daily Facility Checklist to maintain the accessibility of each library facility. Each morning, trained library staff inspect their respective facilities, move furniture (including misplaced/errant step stools and chairs) or other objects that may impede the path of travel, and report any access issues that cannot safely or readily be corrected. Library staff members have various tools, such as door pressure monitors, to conduct these daily inspections. RT 2235:22-2237:13, 2252:10-2253:21; DTX A45. Pursuant to the Library's policy of conducting daily inspections, misplaced furniture impeding an accessible path of travel remains out of place for, at most, twenty-four hours. See DTX A45.
101. The Library also offers a range of non-structural solutions to ensure access to its programs and events, including assistive technologies, books by mail, a Library on Wheels, a Library for the Blind and Print Disabled, a Deaf Services Center, and Accessibility Tool Kits, which include simple tools such as magnifying glasses, magnification sheets, book holders, pencil grips, and special rulers. DTX A43; RT 2248:72252:9.
102. At the time of trial, the City had instituted a policy requiring the installation of automatic door openers to increase accessibility in all buildings, even when not required under applicable access regulations. RT 2238:16-2239:6. The City also implemented custom access standards for use when purchasing furniture and equipment for its facilities. RT 1940:9-1942:24, 2233:14-2235:3; DTX V26; DTX V27; DTX V28.
103. Any public complaints regarding accessibility are handled by the Library's ADA Coordinator for Programmatic Access. Whenever possible, complaints are handled immediately. Some complaints, however, require investigation and assistance from other City departments, and others require funding and must be budgeted. RT 2253:22-2254:24.
104. RecPark manages approximately 4,200 acres of park land, which includes more than 220 parks and 400 built structures, including pools, recreation centers, clubhouses, and playgrounds. RT 2302:10-23, 2264:13-17.
106. RecPark evaluates all of its recreation programs to ensure that they are accessible to individuals with disabilities, provide a range of accommodations, and maintain an inclusion services department that works with disabled individuals to meet their individualized needs. RT 2304:7-2305:6.
107. RecPark has three employees dedicated to accessibility: an ADA Programmatic Access Coordinator; an ADA Facilities Coordinator; and an Inclusion Services Director. RT 2305:8-2306:2.
108. The ADA Programmatic Access Coordinator serves as a liaison between the public, RecPark and MOD, provides staff training, and works to resolve access complaints. RT 2336:3-18.
109. The ADA Facilities Coordinator focuses on ensuring physical access to RecPark facilities via barrier removal and works closely with the City's Capital Division. RT 2305:22-2306:2.
110. The Inclusion Services Coordinator works with individuals who request custom accommodations, such as aides, wheelchair transportation, and assistive listening devices. RT 2336:24-2340:13.
111. RecPark requires daily inspection of its buildings and facilities for safety hazards or other issues that might impact access before they are opened to the public. RT 2315:15-2317:18; DTX Z60 (Employee Daily Facility Preparation Quick-Sheet).
112. RecPark also undertakes a semi-annual accessibility survey whereby it inspects its facilities using a more detailed accessibility checklist and corrects items that may affect physical access. RT 2318:2-2319:18; DTX Z61 (Semi-Annual Facility Accessibility Survey).
113. As mandated by Proposition C, a 2003 voter referendum, RecPark regularly inspects features such as pathways, playgrounds, athletic courts, and trees. These inspections promote accessibility by focusing on path of travel issues, such as surface quality of pathways, the operability of gates and latches, and removal of barriers such as low hanging tree limbs. RT 2320:2-2321:6.
114. RecPark has a written policy that categorizes and prioritizes maintenance requests and complaints as follows: emergencies, which are to be addressed immediately; health, safety and accessibility issues, which are to be addressed within forty-eight hours; and routine issues.
115. The public may obtain information relating to the department's programs, services, and activities — including accessibility information — through RecPark's website. RT 2344:25-2348:19; PTX 3875.
116. The website contains a webpage specifically dedicated to disability access issues, which provides information regarding facility accessibility and programmatic accessibility, as well as contact information for further access inquiries. RT 2347:242348:19; PTX 3875 [075767]. It also provides instructions for submitting individualized requests for inclusion services or accommodations, as well as a list of available adaptive recreation classes and activities. RT 2347:24-2348:19, 2354:10-24; PTX 3875 [075768]. The website includes a map function that identifies parks
117. The purpose of the website is to provide the public with "shorthand information" regarding City facilities that contain programs accessible to wheelchair users. RT 1502:13-16. As such, the website defines an "accessible" park or out-door area as one that has a wheelchair accessible entry and "at least one accessible recreational opportunity." RT 1476:24-1477:14, 2329:11-16; PTX 3875 [075767]. The website advises the public that due to the terrain, age, and natural features of the City's outdoor areas, "there will be sites labeled `accessible' in which some areas of the site are not accessible to wheelchair users." PTX 3875 [075767].
118. RecPark makes reasonable efforts to fulfill special accommodation requests made by persons with disabilities. RT 2348:20-2354:3. Although RecPark requests seventy-two hours' notice for such requests, it nonetheless strives to accommodate requests received less than seventy-two hours in advance, as well. RT 2310:12-2312:24, 2348:202350:1.
119. At trial, RecPark's ADA Coordinator for Programmatic Access testified that he was unaware of any situation in which RecPark had been unable to fulfill a request for accommodation, and there has been no showing to the contrary. RT 2352:16-19.
120. Since 2000, RecPark has spent over $500 million on capital projects to improve the City's RecPark facilities through its Capital Improvement Program. RT 2265:2-2266:2; DTX C32 [000003].
121. As RecPark renovates each park and facility under its Capital Improvement Program, it makes access improvements as necessary to ensure compliance with access regulations. RT 2274:3-2275:7.
122. In 2008, RecPark estimated its capital need for its entire system to be roughly $1.7 billion. RT 2267:2-12.
123. The majority of funding for RecPark improvements derives from voter approved measures, including the 2008 Clean and Safe Neighborhood Parks General Obligation Bond ("2008 Bond"), while the remainder came from other sources, such as the City's General Fund. RT 2266:11-2267:2.
124. In connection with the 2008 Bond, RecPark conducted a year-long community outreach campaign to select the parks to be included in the bond measure. Based on the feedback it received, RecPark selected fourteen neighborhood parks or park facilities for inclusion based on the following four criteria: (1) earthquake safety hazards; (2) physical condition; (3) location in dense urban areas; and (4) the provision of "core park amenities," such as a play area, green space, recreation facility, athletic field, or athletic court. RT 2267:13-2272:24, DTX O37 [00029-35]. All of the 2008 Bond projects include expenditures for access improvements. Id.
125. At the time of trial, RecPark and MOD were planning a $150 million general obligation bond for further park improvements for inclusion on the November 2012 ballot. RT 2277:3-12, 1808:18-1809:23.
126. Pursuant to UPhAS, MOD studies and tracks RecPark's capital projects. RT 1802:25-1803:3, 1805:1-22. MOD works
127. DPW's Disability Access Coordinator and MOD's Access Compliance Officers perform disability access reviews for RecPark's capital improvement projects. RT 1945:18-1946:14, 1901:3-14.
128. Jensen, DPW's Disability Access Coordinator, followed Procedure 9.8.24, which sets forth the review process for compliance with accessibility standards, for all RecPark projects he reviewed. RT 1946:15-1947:1. He also evaluated the path of travel from each site evaluated to the corresponding public right-of-way, nearby accessible parking, and public transportation, and he required access improvements where necessary. RT 1948:7-1949:4. In addition, Jensen used the playground and recreation accessibility standards developed by the U.S. Access Board when reviewing RecPark projects, even though they had not yet been adopted by the DOJ. RT 1947:7-1948:6.
129. Kirola has been a resident of the City since 1993. RT 1389:8-9. She suffers from cerebral palsy and uses a motorized wheel chair for mobility and to travel around San Francisco. RT 1380:12-1381:3.
130. Aside from her own testimony, Kirola presented the testimony of three class members and three mothers of class members.
131. Timothy Grant ("Grant") is a class member with multiple sclerosis who uses a wheelchair for mobility. He resides in Albany, California, and travels to San Francisco four to five times a week. RT 873:8-15, 881:18-23.
132. Margie Cherry ("Cherry") is a class member with chronic arthritis. She resides in San Francisco. RT 1028:22-23, 1029:18.
133. Elizabeth O'Neil ("O'Neil") is a class member with cerebral palsy who often uses crutches or a wheelchair for mobility. She resides in San Francisco. RT 537:13-24, 539:18-540:20.
134. Jill Kimbrough ("Kimbrough") is the mother of a nine-year-old class member with Rett syndrome who requires assistance to walk. RT 822:1:823:4. Kimbrough and her family reside in San Francisco. RT 821:6-8.
135. Audrey DeChadenedes ("DeChadenedes") is the mother of a twenty-five year-old class member with Rett syndrome who requires a wheelchair for mobility. RT 1001:14-19. DeChadenedes and her daughter reside in San Francisco. RT 997:24-998:10.
136. Erica Monasterio ("Monasterio") is the mother of a thirteen year-old class member with cerebral palsy who uses a wheelchair for mobility. Both reside in San Francisco. RT 1226:3-4, 23-24.
137. Upon questioning from Class Counsel at trial, Kirola testified only to a very limited number of specific barriers she encountered while utilizing the City's public right-of-way. In particular, Kirola noted that while travelling around San Francisco, she encountered bumps and/or uneven surfaces along: (1) the east side of Fulton Street ("Fulton") between Fillmore Street ("Fillmore") and Steiner Street ("Steiner"); (2) Steiner between Grove Street ("Grove") and Fulton; and (3) the east side of 19th Street one block north of Wawona Street. RT 1381:14-21, 1382:4-16, 1382:16-18, 1386:-1387:18.
138. Kirola claims that the bumps on the east side of Fulton caused her wheelchair to "hesitate," and that she "got to spend extra time deciding where [she is]
139. With respect to the bumps along Steiner, Kirola testified that her wheelchair "refuses to go down that way." RT 1382:16-18. With respect to the bumps along the east side of 19th Street, Kirola alleges that she "didn't know where to go to avoid the bumps" and "had to take the bus." RT 1387:12-13. Again, however, Kirola offered no further details regarding the severity of the alleged bumps and uneven surfaces she encountered, or any alleged burden imposed by having to take an alternative route, if any.
140. Kirola also testified that on one occasion she ran her wheelchair into an uncovered tree well on McAllister Street ("McAllister"). RT 1383:3-12. The record shows, however, that there was a 48" wide unobstructed path around the tree well. RT 1383:3-12, 431:3-10; PTX 4140Y.
141. Kirola further testified that she encountered a corner with only one curb ramp (as opposed to bi-directional ramps) at the intersection of McAllister and Fillmore, but did not submit a complaint. RT 1384:13-21. She also found no curb ramps at the corner of Hayes Street ("Hayes") and Fillmore. As a result, Kirola had to make a conscious effort to take a "different route" to her friend's house. RT 1384:8-10. No testimony was elicited regarding the details of the different or alternate route, such as the additional distance and/or travel time involved, if any. Kirola submitted a curb ramp request for the corner of Hayes and Fillmore, and the City installed the requested curb ramps within twenty months. RT 1383:19-1884:8, 1391:18-1392:2.
142. Kirola identified no other specific barriers regarding the City's sidewalks, and she did not testify regarding any alleged access barriers within the City's crosswalks. In addition, Kirola testified that she routinely and independently travels across the City, using the City's public right-of-way, public transportation systems, and paratransit service. RT 1380:12-22, 1392:17-23, 1393:12-23.
143. O'Neil, Grant, Cherry, Kimbrough and DeChadenedes each testified to having encountered uneven and cracked sidewalks, exposed tree roots and missing curb ramps, all of which impeded their access. E.g., RT 541:14-19, 566:3-8, 541:24-542:5, 546:4-25, 553:21-24, 563:24-564:10, 542:8-543:13, 553:9-20, 867:1-13, 824:13-825:11, 821:17-18, 1031:22-1032:17, 1039:14-16.
144. Kirola testified to having used three of the City's twenty-eight libraries: the Main Library, the Western Addition Branch Library, and the Parkside Branch Library. RT 1385:22-1386:5. At each of those libraries, Kirola encountered misplaced or errant step stools left in the stacks which blocked her access to the particular aisle. RT 1385:221386:5.
145. The Western Edition Branch Library is located in Kirola's neighborhood. She visits that particular branch about once every two months. She found misplaced stools — apparently left by inconsiderate library patrons — on about 40 percent of those visits, which amounts to about 2.4 times per year. RT 1385:17-1386:8.
146. With respect to the Main Library and Parkside Branch Library, no testimony was offered regarding the frequency of her encounters with misplaced stools.
148. Kirola also did not testify to encountering any other access barriers in the City's libraries.
149. No class member testified to any access barriers at any of the City's libraries.
150. Kirola routinely swims at Hamilton Pool and Martin Luther King Jr ("MLK") Pool, which were previously renovated and made accessible. RT 1392:17-1393:23.
151. Hamilton Pool is the closest pool to her home. RT 1393:2-3. Kirola's only complaint regarding that pool is that she cannot use the children's slide because it lacks a lift. RT 1392:17-1393:23. She acknowledged, however, that the slide at Hamilton Pool is intended for children and was unaware whether adults are allowed to use it. RT 1387:16-18.
152. MLK Pool is her "favorite pool." RT 1393:1-3, 1392:17-19. Travelling to MLK Pool takes a "long time" on public transit, but is "not hard to get to." RT 1392:19-21.
153. Kirola found Sava Pool to be accessible, but encountered a cracked sidewalk near the facility on 19th Street. RT 1386:22-1387:13.
154. Kirola testified to experiencing accessibility issues at Balboa Pool, Garfield Pool and Rossi Pool. These pools are classified as "limited access," as opposed to accessible. DTX F16.
155. At Balboa Pool, Kirola encountered a steep entrance ramp and an inadequate locker room. RT 1388:5-6. She likewise found insufficient clearances in the locker room and restrooms at Garfield Pool. RT 1388:7-17. As for Rossi Pool, Kirola claims that she was deterred from visiting that facility after being informed that it was inaccessible. RT 1386:15-19.
156. Kimbrough testified that the ramp at Balboa Pool is too steep for her daughter to use, and as a result, she cannot watch her sister take swimming lessons or access the pool. RT 838:12-839:19. Although Coffman Pool is only a mile further away than Balboa Pool, Kimbrough prefers not to go there because her eldest daughter's swimming instructor teaches at Balboa Pool, and she feels that Coffman Pool is not located in a safe neighborhood. RT 849:10-17, 852:19-853:2
157. Monasterio testified that the closest pool to her is Garfield Pool but that "there's not a safe space for her to sit and shower." RT 1233:18-24. Although she believed that Garfield is designated as accessible, it is not. See RT 1234:10-12; DTX F16.
158. Cherry testified that she attempted to take a swimming class at MLK Pool but that she had been forced to discontinue the class as a result of the lift being consistently broken for an entire month. RT 1043:15-1045:19.
159. At trial, Kirola testified regarding accessibility issues only with respect to Alamo Square Park. More specifically, Kirola stated that "the accessible entrance is steep to use," RT 1385:5; that she was "not able to get in the children's play area," RT 1385:1415; and that there were "some places where the slope of the paths are steep so it is hard to use those areas of the park," RT 1385:7-169.
160. Kirola did not offer any testimony or evidence as to
162. Cherry stated, without elaboration, that all of the parks in her area "need help" and "haven't been maintained the way they should." RT 1041:1-5. She commented that her daughter had difficulty with a bathroom at Golden Gate Park and felt that the disabled stall should be located in the front. RT 1041:19-21.
163. Kimbrough complained that her daughter: (1) could not enter the Tea House at the Japanese Tea Garden (Golden Gate Park) because of the "stepping stones that go over the water," RT 831:16-20; (2) could not enter the children's playground at Golden Gate Park, RT 832:3-833:4; (3) had difficulty going to the duck pond at McLaren Park, RT 834:16-835:11; (4) found the pathway to the play area at the St. Mary's playground too steep, RT 835:16-8; (5) was unable to access one part of the play area at Balboa Park, though was otherwise able to use almost all of the play structures there, RT 836:17-837:9; and (6) encountered steep paths at Holly Park, which "is on the top of a hill," RT 837:19838:5.
164. Monasterio testified that her daughter: (1) had difficulty accessing parts of Glen Canyon Park, which is located in a "Eucalyptus forest" that is "very wild," RT 1234:16-1237:2; (2) could not enter certain parts of the exhibit at the Conservatory of Flowers (Golden Gate Park) because plants were in her way, RT 1237:3-20; and (3) could not enter the Japanese Tea Garden for unspecified reasons, RT 1237:23-1238:1.
165. Fraguli, who is in charge of the grievance procedure operated by MOD, never received any complaints from Kirola or any testifying class member or parent of a class member. RT 1866:11-14, RT 1870:14-1871:9. She was surprised to have not received any complaints from Kirola, whom she knows socially, or O'Neill, who had previously worked at MOD. RT 1870:14-22.
166. Though Kirola did not utilize the City's grievance procedure, she did contact her district supervisor in July 2006 to complain about the lack of curb ramps at the corner of Hayes and Fillmore. In April 2008, the City installed the curb ramps per Kirola's request. RT 1383:19-1884:8, 1391:18-1392:2. The City also installed curb ramps at all the locations alleged in the pleadings. RT 1392:3-16. Kirola did not make any other formal access complaints to the City prior to the filing of this lawsuit.
167. In 2006 or 2007, Monasterio ran into her then supervisor, Tom Ammiano, at the video store and complained to him about having "curb cuts" installed along Cortland Avenue. RT 1228:18-1229:9. In response, DPW consulted with Monasterio to understand her daughter's needs. RT 2001:8-2002:5. The City constructed all curb ramps requested by Monasterio within a year after the requests were made. RT 2419:13-2420:4; 2001:82002:5; 1228:18-1229:6.
169. Second, she called DPW to complain about a curb ramp at the corner of Van Ness Avenue ("Van Ness") and Olive Street ("Olive"). RT 589:2-18. She indicated that she made the complaint sometime between 2006 and 2009, and that the curb ramp was fixed in about one year. RT 571:7-8, 589:6-7, 589:21-590:4.
170. Third, O'Neil claims that on March 17, 2011, she submitted a complaint regarding steep curb ramps at the corner of Van Ness and Hickory Street ("Hickory"), a location where the City had received a prior curb ramp request. RT 578:4-24, 2420:182421:2. Initially, the City determined that curb ramps could not be constructed at this location because of a sub-sidewalk basement. RT 2005:2-2006:4; 2421:3-8. The City later identified a significantly more expensive design "bulb-out" solution that extends the sidewalk out into the street, thereby avoiding the sub-sidewalk basement. RT 2006:5-18; 2421:9-22, 2421:20-25. At the time of trial, curb ramps for this location were in the design phase. RT 2006:19-25; 2422:1-6. Approximately twenty new bi-directional curb ramps have been installed in O'Neil's neighborhood, some at her request. RT 594:15-18.
171. Kirola offered expert testimony from Peter Margen ("Margen"), Dr. Edward Steinfeld ("Steinfeld"), Jeffrey Scott Mastin ("Mastin"), Gary Waters ("Waters") and David Seaman ("Seaman").
172. Mastin is a licensed architect and was received by the Court as an expert in architecture, construction, disability access, program access for mobility disabled persons, ADA transition plans, and barrier removal. RT 927:6-931:23.
173. Steinfeld is a professor of architecture, the Director of the Center for Inclusive Design and Environmental Access ("IDEA Center"), and an advocate for improved disability access standards, and was received by the Court as an expert in architecture, accessibility design, universal design, program access, and transition planning for public entities. RT 606:7-607:9, 767:6-13.
174. Margen, a disability access specialist, was received as an expert on disability access. RT 100:17-101:3.
175. Waters, a licensed architect, certified access specialist, and disability access consultant, was received by the Court as an expert in disability access, program access for persons with mobility disabilities, the preparation and implementation of self-evaluation and transition plans, and policies, procedures and practices regarding disability access barrier removal. RT 1306:23-1310:6.
176. Seaman was qualified as an expert in GIS. RT 489:19-490:5.
177. The City offered expert testimony from Hecker and Larry Wood ("Wood").
178. Hecker, a licensed architect, was received by the Court as an expert in architecture and disability access. RT 2037:7-2038:3.
179. Wood, an architect and accessibility consultant with a nation-wide practice, was received by the Court as an expert in architecture, disability access, self-evaluation plans, transition plans, and Title II
180. Kirola's experts offered a variety of testimony regarding their evaluation of the City's curb ramps and sidewalks.
181. Mastin opined that 1,358 of the 1,432 curb ramps he inspected were inaccessible or non-compliant. RT 1215:12-1218:7; PTX 4148.
182. Steinfeld found barriers relating to curb ramp accessibility at thirteen of the fourteen site inspections conducted by his team that involved inspection of the public right-of-way. RT 704:9-12.
183. Margen inspected sidewalks and curb-ramps at ten street intersections and/or street segments, and asserted that there were "major barriers to accessibility" which rendered "the system as a whole not accessible." RT 330:21-331:1.
184. The Court finds that the opinions offered by Kirola's experts are unreliable and unpersuasive.
185. As an initial matter, the Court has serious concerns regarding their methodology. For instance, Kirola's experts failed to consider the height of the curbs or widths of the sidewalks they examined, even though both are critical measurements that may impact the design, construction, and accessibility conclusions of the curb ramps at issue. RT 2073:11-16. The record also shows that they failed to take steps to apply a consistent method of measuring slopes, sidewalks, and curb ramps, and improperly applied ADAAG to the public right-of-way. RT 398:12-399:5, 2055:24-2056:7, 2058:20-2061:6, 800:24-802:21, 2048:9-15.
186. The Court also has concerns regarding the qualifications of the persons conducting the evaluations. Steinfeld conducted his surveys mostly with the help of student interns who were not trained on California accessibility standards and whose work was shown by the City to be unreliable. RT 738:2-739:22, 800:14-801:25, 817:12-819:2, 2065:1-20. Margen is not an architect. According to fellow expert Mastin, only licensed architects are qualified to be experts in disability access standards. RT 1250:19-1251:22.
187. Wood, the City's accessibility expert, whom the Court finds to be credible, was particularly critical of the methodology utilized by Kirola's experts, opining that "there was no common way of measuring anything, such as slopes, sidewalks, [and] curb ramps" and that "they all seemed to have a different approach that was somewhat haphazard." RT 2056:3-7. Notably, the inconsistencies in such measurements led to internal disagreements between Kirola's experts. Steinfeld's colleague, Denise Levine, who supervised the site inspections conducted by Steinfeld's IDEA Center team, viewed her methodology as superior to the methodology employed by Kirola's other access experts and rejected their inspection protocols in favor of her own. RT 800:24-802:21.
188. Also problematic is Kirola's experts' failure to account for dimensional tolerances. Due to variations in workmanship and real-world construction practices, minor variations in the curb ramp or sidewalk construction may occur. 28 C.F.R. part 36, App. D, § 3.2 ("[a]ll dimensions are subject to conventional building industry tolerances for field conditions"). For instance, there may be slight imperfections in a curb ramp surface, or, at different points along the ramp, the slope or grade may not necessarily be uniform. RT 2061:2-2062:62:13. These variations may be the result of using a hand-trowel during the construction process and the natural settlement of concrete. RT 2061:22-2062:2. According to Wood, a dimensional tolerance is a permissible deviation from standards commonly accepted in the construction
189. In addition, Kirola's experts measured curb ramp slopes without considering the ramp's overall "rise in run" and flatness. RT 2056:10-2057:1. Instead, they recorded the maximum localized variation (i.e., the steepest individual point along the slope of the curb ramp), which skewed their results. RT 2056:10-2057:1, 2058:20-2061:6, 771:11772:8. Steinfeld, for instance, acknowledged that the measurements he made regarding the overall slope of each curb ramp were based on the most extreme variation in the ramp's grade, misleadingly characterizing that measurement as applying to the ramp as a whole. RT 771:23 ("we use the steepest slope as what we record"). In other cases, the measurements taken were erroneous. Mastin admittedly cited dozens of curb ramps with a slope of less than 8.3 percent as non-compliant — when, in actuality, a slope of 8.3 percent or less comports with the ADAAG. RT 1275:5-21. Wood noted this discrepancy in his testimony. RT 2081:5-10. Wood also pointed out that Kirola's experts routinely cited items such as pot holes or utility grates as access barriers, notwithstanding the fact that there was an ADA compliant (i.e., 48-inch wide) path around the item. RT 2079:102081:10.
190. The Court further discounts the probative value of Kirola's experts' opinions and reports based on their misapplication of ADAAG, which applies specifically to post-January 26, 1992, construction. RT 2172:11-14. The ADAAG's current regulations focus on buildings and facilities, and do not explicitly encompass the public right-of-way (though a public right-of-way section has been reserved). Indeed, on July 26, 2011, the U.S. Access Board published Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way, thus implying that the Board intended the current guidelines to be limited to newly constructed buildings and facilities (and the curb ramps, sidewalks, and loading zones associated with such buildings and facilities). Dkt. 636, Exh. A.
191. Even if the ADAAG were applicable to a public right-of-way, its provisions would apply only to newly constructed or altered elements of the public right-of-way. See 28 C.F.R. § 35.151. Despite this distinction, Kirola's experts indiscriminately applied the ADAAG to each curb ramp assessed without taking in account
192. As for Margen's claim that the "the [City's] system [of curb ramps and sidewalks] as a whole is not accessible," the Court finds his opinion unpersuasive. RT 330:21-331:1. Margen was not certified as an expert on program access under Title II of the ADA nor is he an architect. RT 100:17-101:3. According to Mastin, only licensed architects are qualified to be experts in disability access standards. RT 1250:19-1251:22. Further, Margen's lack of knowledge was apparent from his inconsistent testimony regarding his understanding of Title II's program access requirements.
193. The Court also ascribes little weight to the testimony of Kirola's GIS expert, Seaman, who performed an analysis of the data contained within the CRIS database as of January 21, 2011, and prepared maps, which depict corners lacking curb ramps and curb ramps with low condition scores. RT 494:14-500:13. Seaman's geographic representations of the CRIS data are misleading in that he failed to show data for accessible curb ramps near the purportedly non-accessible curb ramps, despite the fact that such data was available to him. RT 530:3-5. In addition, testimony presented at trial demonstrates that the CRIS database was not up to date and lacked data for curb ramps installed through departments other than DPW. RT 2396:19-2397:7, 2401:14-16, 2403:12-2404:9.
194. In contrast, the Court finds the opinions of Hecker, the City's accessibility expert, to be more credible. The DOJ's "Tool Kit for Title II Entities" advises public entities to create long-range plans to provide curb ramps where needed and to employ a request-based system for installing curb ramps. RT 2811:7-2812:15. Hecker opined that the City's priorities for curb ramp installation, as set forth in the Curb Ramp and Sidewalk Transition Plan, are consistent with the priorities and recommendations established by the DOJ. RT 2785:17-2787:13, 2789:3-2790:18, 2811:7-2812:15.
195. On cross-examination, Kirola asked Hecker about a December 2009 expert report in which he had stated that the City had not yet installed every curb ramp necessary for program access when the network of City sidewalks was viewed in its entirety, but that the City was making progress toward program access. RT 2795:19-2796:8. However, Hecker acknowledged that at the time he issued the 2009 report, he had not actually determined the total number of curb ramps needed to achieve program access for the purposes of that report. RT 2797:15-2798:6. Hecker provided no updated program access conclusions regarding the City's public right-of-way. In any event, Hecker's observations in the 2009 report do not undermine his opinion that the City's policies and programs for curb ramp installation comport with the ADA. RT 2785:17-2787:13, 2789:3-2790:18, 2795:19-2796:8; PTX 0022 [003798].
196. To summarize, the Court finds that the opinions of Kirola's experts regarding whether the City provides meaningful access to its public-right-of-way are uncompelling, particularly in light of the persuasive testimony provided by Wood, and affords them little weight. The Court finds Hecker, the City's access expert, to be credible, and finds the City's priorities for curb ramp installation, as set forth in the Curb Ramp and Sidewalk Transition Plan, to be consistent with the priorities and recommendations established by the DOJ.
197. The Court now addresses the expert testimony regarding whether mobility-impaired individuals have been provided with meaningful access to the City's Library and RecPark facilities. The following section is divided into two parts. The Court first addresses the opinions offered to support Kirola's contention that, to comply with its access obligations, the City must make each of its individual libraries, parks, pools, and recreation centers fully accessible because the City has a program of providing "unique" neighborhood facilities. See, e.g., RT 103:6-104:19. Following those findings, the Court will address the opinions and findings of Kirola's experts
198. According to Margen, each individual park or library constitutes a "unique" program because of its status as a "neighborhood" site. RT 104:1-19, 406:25-407:22. Margen opined that program access, "as it relates to San Francisco," means that all services and activities available at one facility must be made available at every facility. RT 105:2025. He admitted, however, that his opinion was not based on any authoritative publication in his field, but was simply his personal opinion. RT 407:8-22. In addition, Margen, who was not received as a program access expert, later contradicted himself, stating that the services offered at one park need not be duplicated at every park, "but where services are provided, those services need to be accessible." RT 333:9-11. The inconsistencies in and apparent arbitrariness of Margen's opinions raise concerns regarding his actual understanding of the program access requirements. RT 100:17:101:3, 105:20-25, 333:9-11. The Court therefore gives little weight to Margen's opinion.
199. Like Margen, Steinfeld opined that each City park is "unique," and therefore, the City's efforts to offer program access to its park system was not "workable" in light of the length of time it would take to walk from one park to another. RT 615:17-616:4, 619:18-621:8, 629:12-15. Though admitting that every park need not be made accessible, he opined that the City must provide an "equivalent park" within a "reasonable" distance from every non-accessible park, which he posited to be one-half of a mile. RT 624:11-13, 625:8-626:8. He reasoned that certain "very special parks," such as Mission Dolores Park or Golden Gate Park, have no equivalent, and as such, each of those parks must be fully accessible. RT 629:3-15. Steinfeld also asserted that parks are unique to the particular neighborhood in which they are located and potentially have "neighborhood meaning." RT 618:21-25.
200. Steinfeld presented no foundation for his opinions, and conceded that he had never visited Mission Dolores Park and knew little about it. RT 797:19-23. He also contradicted himself, testifying that only "a small part" of a particular park must be accessible in order to provide the requisite program access. RT 717:10-21. In addition, the suggestion that the name of a park connotes its unique, neighborhood meaning, is both unfounded and illogical. The mere fact that a park is named after the area in which it is located does not establish that the park has "neighborhood meaning" or that the City is obligated to ensure that each and every "neighborhood" park is accessible. Given the lack of any identifiable bases for Steinfeld's opinions, it is readily apparent that his testimony was based on his personal views, rather than a professional understanding of a public entity's Title II obligations. For the reasons discussed, the Court finds Steinfeld's opinions to be unpersuasive and gives them little weight.
201. The Court also affords little weight to Steinfeld's opinions that Coffman Pool and MLK Pool (which are designated as accessible pools) are not meaningful alternatives to Balboa Pool for persons with mobility disabilities due to their distance from Balboa Pool. RT 673:4-23. Kimbrough, a mother of a class member, testified that Coffman Pool was only two miles from her home while Balboa Pool was one mile from her home. RT 852:18-853:2, 848:18-24. Given the proximity of Coffman Pool to Balboa Pool, the Court is unpersuaded by Steinfeld's suggestion that the Coffman Pool is not a meaningful alternative.
202. Mastin opined that the City must make "each and every" one of its "unique" facilities accessible to satisfy its program access requirements under the ADA. RT 1223:22-1224:4. Mastin testified specifically regarding recreation centers, stating that, in his opinion, the City's recreational centers are "localized" and that it is "not equivalent to go to someone else's neighborhood and socialize with people you don't know." RT 1172:22-1174:10. Mastin failed to cite any authority or identify a factual basis in the record for his opinions, and the Court concludes that, like Steinfeld, his opinions are based on his personal, subjective views as a disability access advocate, rather than a professional understanding of a public entity's Title II obligations. The Court therefore finds Mastin's opinions to be unpersuasive and gives them little weight.
203. Waters opined that the "uniqueness of a particular facility" is a factor to be taken into account when determining whether or not program access has been afforded. RT 1349:4-15. Again, Waters failed to cite any authority or identify any factual basis in the record for his opinions, which are based on his personal opinions as a disability access advocate rather than on a professional understanding of a public entity's Title II obligations. The Court therefore finds Waters' opinions to be unpersuasive and affords them little weight.
204. In sum, although each library, park, pool, and recreational center arguably may have some "unique" features, that does not, in turn, support the conclusion that each individual library, park, pool, and recreational center must be fully accessible in each neighborhood. The opinions of Kirola's experts are not grounded on any industry standards or understanding. Instead, they are based on their personal beliefs as disability access advocates. For these reasons and those discussed above, the Court finds the conclusions of Kirola's experts regarding the neighborhood theory of access to be suspect and lacking in credibility.
205. Aside from offering opinions regarding Kirola's neighborhood theory of accessibility, her experts also discussed purported accessibility barriers in relation to the City's Library and RecPark facilities. These experts testified, to varying degrees, that they encountered multiple access barriers at the libraries, pools, parks, and recreation centers which they inspected.
206. Kirola's experts inspected eighteen of the City's twenty-eight libraries, including the Main Library. RT 164:5-165:21, 384:14-385:13, 651:14-653:1; PTX 4148. Margen, Steinfeld and Mastin opined that those libraries had narrow aisles, inadequate turnaround space at the end of aisles, inaccessible restrooms, inaccessible seating, and excessive door pressure. RT 293:5-295:3, 296:6-298:5, 334:8-16, 378:23-379:5, 741:20743:18 1213:12-22. Margen opined that the City's libraries suffered from accessibility issues that must be addressed in order to make the library system, on the whole, accessible. RT 334:8-16.
207. Kirola's experts inspected seven of the City's nine pools. Three of the pools they inspected, i.e., Garfield, Balboa, and Rossi Pools, are designated as "limited access" — meaning that they are not intended to provide program access. RT 164:4-165:11, 408:1114, 651:14-652:6, 1312:1-1313:2, 1813:10-23; PTX 4147; PTX 4149; DTX F16. Steinfeld, in particular, claimed to have found numerous access barriers at the pools, including inaccessible paths of travel, inaccessible parking, inadequate signage, missing
208. With respect to the City's park program, Kirola's experts inspected 13 parks, 7 mini-parks, and 16 playgrounds of the City's network of approximately 220 parks. They also visited multiple sites within Golden Gate Park. RT 164:4-165:21, 651:23-652:6, 1312:17-19; PTX 4149; PTX 4147. Based on their inspections, Kirola's experts identified various access barriers, including an inaccessible entrance ramp at Balboa Park, a cracked sidewalk at Jefferson Square Park, limited accessible paths of travel at Golden Gate Park's Japanese Tea Garden and Rose Garden, inaccessible paths connecting the main facilities at Glen Canyon Park, and placement of flora and fauna signage at Glen Canyon Park too far from accessible trails. RT 670:10-671:12, 712:12-17, 757:5-6, 1316:22-1313:9, 1317:221318:8, 1327:5-1330:15-17, 1331:13-23, 1333:8-21.
209. Finally, the experts conducted site inspections of thirteen of the City's seventy-three recreation centers and clubhouses. PTX 4147; PTX 4149. Mastin cited access barriers at the recreation centers he inspected, such as inadequate signage, an excessive cross-slope leading to accessible features in a restroom, a broken elevator, and an inaccessible tennis court. RT 1121:8-1124:5, 1141:5-1142:5, 1150:21-1152:4, 1155:201158:6, 1158:19-1160:22, 1162:12-1164:15. Mastin concluded that, based on the barriers he observed, four of the eleven recreation centers he inspected were not accessible. RT 1121:11-15, 1141:5-9, 1162:6-10.
210. The Court is unpersuaded by the opinions of Kirola's experts regarding the purported access barriers they encountered at the City's libraries and RecPark facilities.
211. As an initial matter, Kirola's experts routinely applied inconsistent methodologies and inspection protocols. RT 398:12-399:5, 800:17-801:25, 2055:242056:7. Two experts, in particular, inappropriately focused on minor construction variations and ignored dimensional tolerances, which resulted in otherwise trivial and insignificant deviations being characterized as access barriers-despite the fact that such deviations were permissible under industry accessibility standards. RT 955:5-10, 1273:410, 1342:6-13, 1358:19-1359:3, 2055:24-2057:20, 2065:8-20. For example, at the Kimball Playground, Margen's team used a very short level to measure slopes, notwithstanding Margen's assurance that his team always used a two-foot level. RT 2058:20-25. Use of a short level is problematic because it "gives exaggerated readings because it's so short [that] it picks up minor fluctuations." RT 2059:1-4. Similarly, at St. Mary's Playground, Kirola's inspection team recorded the maximum localized variation as the overall slope of the curb ramp rather than the curb ramp's overall "rise in run" and flatness, which is the appropriate measure of accessibility compliance. RT 2059:9-2061:6.
212. Kirola's experts also repeatedly applied erroneous access requirements. At the time of trial, there were no set standards for parks and playground facilities, though federal guidelines for outdoor facilities had been proposed. RT 2063:19-2064:25. The proposed guidelines recognize that such facilities are located in topographies that vary, and as such, set different and more forgiving slope requirements than compared to those applicable to a building. Id. Yet, Kirola's experts applied the more stringent but inapplicable
213. With regard to buildings, they inappropriately failed to differentiate between new construction and alteration standards, applying the latest version of the California Building Code as opposed to the version in effect when the structure was built. RT 2046:15-2047:5, 2052:7-2053:20.
214. With regard to libraries, Kirola's experts opined that they had narrow aisles and inadequate turnaround space at the end of aisles. RT 293:5-295:3, 296:6-298:5, 334:816, 378:23-379:5, 741:20-743:18 1213:12-22. Under both state and federal law, end aisles at library stacks may be 36" wide. RT 2091:15-18. The 48" width requirement cited by Kirola's experts applies only to restricted U-turn areas. RT 2091:13-2093:8, 2094:10-17, 2194:14-2197:11, 2202:7-08; Cal. Bldg. Code § 1133B.6.2; ADAAG 4.3.3; PTX 4153, 204. Margen and Mastin also cited excessive door pressures at some of the libraries they inspected. RT 373:5-12, 377:15-378:14, 1272:14-16. However, for safety reasons, many of those doors had a greater opening pressure because fire doors are permitted to have a greater amount of pressure. RT 2098:11-16. Mastin also admitted that door pressures may vary daily due to wind or other factors. RT 1272:14-16.
215. Another flaw in Kirola's experts' analyses is their citation to barriers that, in fact, did not impede meaningful access. RT 2057:21-2058:9, 2081:8-10. The survey prepared by Kirola's experts frequently cited issues such as a door being difficult to open when there was an automatic door opener, thereby obviating the need to manually open the door. RT 2057:24-2058:12. In another instance, the report cited the lack of handrails for stairs when a new elevator system providing full access had been installed. Id. The experts criticized the lack of an ambulatory stall (which can be used by persons with crutches or a walker) in a library bathroom, when, in fact, the City had provided two accessible stalls, providing greater access than required by law. RT 2098:18-2099:13. Steinfeld criticized the Richmond Branch Library as having an inaccessible ramp, despite the fact that there was a second accessible ramp leading to the same front entrance which complies with ADAAG. RT 738:16-18, 755:7-10. Instead of focusing on overall accessibility, Kirola's experts dwelled on minor variations that were no longer required, while overlooking "obvious features of a significant expense" undertaken to make the facility accessible. RT 2058:6-12. These are but a few examples of the flaws that permeate Kirola's experts' testimony.
216. In contrast to the unreliable testimony offered by Plaintiff, the Court is persuaded by Wood's independent findings regarding the City's libraries, pools, and recreation centers that he inspected as part of his work on this case. Wood and his staff reviewed a total of sixty-nine facilities
217. With respect to the City's libraries, Wood and his team reviewed each of the libraries evaluated by Kirola's access experts, with the exception of the Visitation Valley Branch Library (which was under construction for accessibility improvements at the time of his evaluations) and the Ocean View Branch Library. RT 2132:23-2134:10. Wood opined that each of the sixteen "blue dot" libraries he visited has the features necessary to facilitate accessibility, including: (1) an accessible route from the entrance to the public sidewalk; (2) an accessible entrance; (3) automatic door openers; (4) elevators within multi-story buildings; (5) access to all library levels; (6) accessible checkout counters; (7) accessible tables; (8) accessible doors along all accessible routes; (9) accessible copy machines; (10) accessible toilet rooms for men and women; (11) accessible drinking fountains; and (12) accessible book stacks. RT 2132:23-2135:19.
218. Wood and his team also visited the three "blue dot" pools evaluated by Kirola's access experts, along with the two additional "blue dot" pools not visited by Kirola's experts (i.e., Sava Pool and North Beach Pool). Of the five pools he evaluated, Wood opined that each has the features necessary to facilitate accessibility, including: (1) an accessible route from the property line to the building; (2) an accessible entry; (3) an accessible check-in counter; (4) accessible signage; (5) accessible ramps or curb ramps where necessary; (6) accessible toilets; (7) accessible showers; (8) accessible locker rooms; and (9) transfer lifts to assist individuals with mobility impairments in getting into and out of the pool. RT 2136:7-2137:5.
219. Wood and his team also reviewed the recreation centers evaluated by Kirola's access experts. Wood opined that each of the newly renovated recreation centers evaluated has all the features necessary to facilitate accessibility, including: (1) an accessible route from the property line to the building; (2) an accessible entry; (3) accessible community rooms; (4) accessible ramps or curb ramps where necessary; (5) accessible elevators within multi-story buildings; (6) an accessible gym with accessible bleacher facilities (with the exception of the Golden Gate Senior Center, which lacked a gym); (7) an accessible weight room in facilities where a weight room was provided; (8) accessible doors; (9) an attendant for special requests; (10) accessible bathrooms for men and women; and (11) accessible drinking fountains. RT 2138:4-2140:12.
220. Based on Wood's thorough analysis of Kirola's experts' findings, combined with his own independent analysis, MOD advised the Library of approximately three or four access barriers that it believed should be addressed, along with a few maintenance issues that it concluded should be attended to as part of its regular facility maintenance. RT 1652:16-1653:4. At the time of trial, the City had made or was in the process of completing the requested repairs. RT 2255:8-2256:6, 2257:17-2258:10.
222. Wood found that only 1.6 percent of the access barriers cited by Kirola's experts at City libraries and recreation facilities actually needed modification. RT 2038:152039:22, 2044:9-2046:12, 1649:10-25, 1625:7-10.
223. The Court finds Wood to be well-qualified and credible, and credits his opinions regarding the existence of the alleged accessibility problems with the City's libraries and RecPark facilities over those of Kirola's experts.
224. The Court is likewise persuaded by Hecker, who provided testimony regarding program access to the City's library program and RecPark programs. As of December 2009, nineteen of the City's libraries were designated as "blue dot" accessible. Hecker opined that the number and distribution of accessible libraries across San Francisco was sufficient to provide program access to the City's library system, considering the City's "compact" size (forty-nine square miles) and effective public transportation and paratransit systems. RT 2763:21-2765:5; DTX I32.
225. Hecker credibly opined that: (1) six of the City's nine swimming pools were designated as "blue dot" accessible, and the number and distribution of accessible pools across San Francisco was sufficient to provide program access to the City's aquatic program, RT 2767:8-2769:17; DTX F16; (2) forty-three of the City's seventy-three recreation centers and clubhouses were designated as "blue dot" accessible, and the number and distribution of accessible recreation centers and clubhouses across San Francisco was sufficient to provide program access to the RecPark programs offered at those locations, RT 2771:3-2772:12; DTX F40; and (3) twenty of the City's forty-five athletic fields were designated as "blue dot" accessible, and the number and distribution of accessible athletic fields across San Francisco was sufficient to provide program access to the City's athletic field program. RT 2769:18-2771:2; DTX F34.
226. In forming his program access opinions, Hecker relied exclusively on the determinations of Scott (i.e., MOD's Deputy Director of Physical Access) as to which facilities offered accessible programs and services, i.e., the "blue dot" designations. RT 2768:4-23. Scott is a licensed architect with more than twenty years of experience working on architectural access issues and a former member of the U.S. Access Board's Recreation Access Advisory Committee and Places of Amusement Committee. RT 1771:21-1773:22, 1775:9-11. Hecker stated that he had a high degree of confidence in the reliability of Scott's designations as a result of Scott's knowledge of accessibility issues and the process employed by the City to ensure the design and construction of accessible City facilities. RT 2762:17-2763:12, 2769:2-15.
227. Furthermore, as of December 2009, 77 of the City's 133 children's playgrounds (58 percent) were designated as "blue dot" accessible, and an additional 15 playgrounds were slated for renovation pursuant to funded RecPark capital projects. RT 1815:9-20; PTX 0148A. As Kirola has made no showing to the contrary,
228. Notably, Kirola failed to provide a program access analysis that refutes the conclusion that the City offers program access through its "blue dot" libraries, pools, recreation centers, clubhouses, athletic fields, and playgrounds. Specifically, Kirola has not shown that each of the designated "blue dot" facilities (designations on which Hecker's program access conclusions rely) fails to fulfill the City's program access intent. See, e.g., RT 726:5-727:11, 1344:7-1345:13, 1357:15-15. Kirola's experts instead emphasized that not all of the "blue dot" facilities were 100 percent compliant with disability access regulations. The flaw in that conclusion is that it misapprehends the significance of the "blue dot" designations. Trial testimony establishes that such designation is intended to represent that the site is fulfilling the City's obligations under UPhAS, not that every element of the facility was "completely accessible" pursuant to applicable access regulations. RT 1463:8-1464:23.
229. On behalf of the City, Hecker credibly opined that the City's grievance procedure is consistent with the requirements of ADA regulations. RT 2727:5-19. In particular, he found significant that the grievance procedure allows members of the public to submit complaints in any manner they wished to communicate and requires the City to issue a response within thirty days. RT 2727:5-19. The Court affords significant weight to his opinion regarding the sufficiency of the City's grievance procedure.
230. The Court is unpersuaded by Margen's opinion that the City's grievance procedure is flawed due to its failure to specify a definitive timeline for resolution of each access complaint received. RT 219:23-220:18. The DOJ's model grievance policy does not mandate a specific deadline for resolving each access complaint. See ADA Best Practices Tool Kit for State and Local Gov'ts, Ch. 2, p. 10-11. The Court therefore affords little weight to Margen's opinion regarding the adequacy of the City's grievance procedure.
1. Title II of the ADA 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 such entity." 42 U.S.C. § 12132. Under the ADA's implementing regulations, "no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity." 28 C.F.R. § 35.149.
2. Section 504 of the Rehabilitation Act prohibits discrimination on the basis of handicap in any program or activity receiving Federal financial assistance. 29 U.S.C. § 794. A "program" or "activity" means, in part, "all of the operations" of a state or local agency. Id. § 794(b). "There is no significant difference in the analysis of the rights and obligations created by the ADA and Rehabilitation Act." Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.1999); accord Armstrong v. Davis, 275 F.3d 849, 862 (9th Cir.2001), abrogated on other
3. Title 42, United States Code, section 1983, "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
4. The Unruh Act provides that persons with disabilities have equal access to streets, highways, public places, public conveyances, places of public accommodation, and housing. Cal. Civ. Code §§ 51, 54(a). A violation of the ADA constitutes a violation of the Unruh Act. Id. § 51(f).
5. The CDPA provides that "individuals with disabilities shall be entitled to full and equal access ... to ... places of public accommodation." Cal. Civ. Code § 54.1. "A violation of the right of an individual under the [ADA] also constitutes a violation [of the CDPA]." Id. § 54.1(d).
6. California Government Code § 11135 provides that no person in the State of California shall, on the basis of disability, "be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state." Cal. Gov't Code § 11135.
7. Aside from the ADA and Section 11135 claims, the parties do not specifically discuss or analyze any of the other claims, all of which rely on the City's alleged violation of the ADA. Accordingly, the Court's analysis of Kirola's ADA claim applies with equal force to the Rehabilitation Act, Unruh Act and CDPA claims.
8. The decision of whether to grant or deny permanent injunctive relief under Title II of the ADA is a matter of the district court's discretion. Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 851 (9th Cir.2001) (affirming denial of permanent injunction where the plaintiff failed to "present facts showing a threat of immediate, irreparable harm").
9. The City contends that Kirola, the sole class representative, lacks standing to sue for the alleged denial of meaningful access with respect to the City's programs, services and activities, or to challenge any of the various policies which allegedly show that her injury is likely to recur. Dkt. 666. The defense of lack of subject matter jurisdiction may be raised at any time, and the court is under a continuing duty to examine its jurisdiction. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983).
10. "[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). To satisfy the "case or controversy" requirement, a plaintiff must establish standing under Article III. Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir.2010).
11. "[I]n order to have Article III standing, a plaintiff must adequately establish: (1) an
12. Where, as here, a plaintiff seeks only declaratory and injunctive relief, she must additionally show "a very significant possibility of future harm." Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975, 979 (9th Cir.2013); Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (noting that standing may be based on threatened injury only if it is "certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.") (citations, internal quotation marks, and brackets omitted). "To have standing to assert a claim for prospective injunctive relief, a plaintiff must demonstrate `that he is realistically threatened by a repetition of [the injury].'" Melendres v. Arpaio, 695 F.3d 990, 997 (9th Cir.2012) (quoting City of L.A. v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
13. The standing requirement applies to class representatives, who must, in addition to being a member of the class they purport to represent, establish the existence of a case or controversy. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). "A plaintiff must demonstrate standing for each claim he or she seeks to press and for each form of relief sought." Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir.2013) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)).
14. Before reaching the question of whether Kirola has Article III standing, the Court addresses four preliminary contentions concerning the constellation of evidence which may be considered in analyzing her standing: (1) whether standing may be established by evidence that was not presented at trial; (2) whether Kirola's experience with barriers in her neighborhood is sufficient to confer standing to sue for barriers she did not encounter; (3) whether standing may be established based on the experiences of class members; and (4) whether Kirola has standing to challenge the City's alleged "overarching policy" of discrimination.
15. The City contends that Kirola's standing is to be evaluated based solely on the evidence presented at trial; namely, her in-court testimony. In contrast, Kirola argues that the Court is not limited to the trial record, and that the Court should consider evidence obtained or produced during discovery — irrespective of whether such evidence was previously presented to the Court. For the reasons that follow, the Court finds that Kirola's standing is to be determined based on the trial record.
16. Standing is a core component of Article III's case or controversy requirement, and as such, it must be established "through all stages of federal proceedings." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108
17. An assessment of standing based on the trial record is both permissible and appropriate, particularly where, as here, the plaintiff's standing is disputed. See Maine People's Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir.2006) ("When, as now, standing is reviewed after trial, the facts establishing standing `must be supported adequately by the evidence adduced at trial.'") (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130); Perry v. Vill. of Arlington. Heights, 186 F.3d 826, 829 (7th Cir.1999) ("`[W]here standing is challenged as a factual matter, the plaintiff bears the burden of supporting the allegations necessary for standing with "competent proof." ... "Competent proof" requires a showing by a preponderance of the evidence that standing exists.'") (citations omitted); Biopolymer Eng'g, Inc. v. Immudyne, Inc., No. 05-2972 (JNE/JJG), 2009 WL 2916847, *3 (D.Minn. Sept. 4, 2009) ("Plaintiffs bear the burden of establishing their standing. The Court will determine whether they have satisfied that burden based on the evidence received at trial."); see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) ("The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.").
18. Here, Kirola has long been on notice that the City disputes whether she has standing and that such determination would be adjudicated at trial. Although the City chose not to pursue the standing issue in connection with Plaintiff's class certification motion, the Court's order on that motion expressly stated that Kirola's standing "[would] be made following trial based upon the evidence presented and the relief requested." Dkt. 285, 3:23-24. Despite this awareness, Kirola offered only minimal testimony at trial to establish that
19. Apparently recognizing the insufficiency of her trial testimony, Kirola now argues in her post-trial briefing that the Court must also consider evidence that was not presented at trial. Dkt. 672, 13:22-14:3, 17:16-18:4, 18:15-26, 19:12-25. More specifically, Kirola points to certain portions of her deposition testimony and the declaration she submitted in support of her motion for class certification to establish that she encountered barriers in addition
20. Limiting the evidence of Kirola's standing to the trial record is necessary and appropriate as a matter of due process. Both Kirola's deposition testimony and her declaration constitute inadmissible hearsay. Fed. R. Evid. 801(c); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779 (9th Cir.2002) ("Deposition testimony, irrespective of its contents, is ordinarily hearsay when submitted at trial"); but see Fed. R. Civ. P. 32(a)(4) (providing an exception to the hearsay rule for deposition testimony where the witness is unavailable). Namely, both documents consist of out-of-court statements offered to establish the truth of the matter asserted — to wit, that Kirola did, in fact, encounter access barriers as described and consequently suffered an injury in fact. Kirola has not shown that these statements are subject to any hearsay exception, and otherwise provides no authority suggesting that it would be fair or appropriate for the Court to consider her out-of-court statements, which were not subject to cross-examination by the City at trial.
21. In sum, the Court finds that Kirola's standing must be evaluated based on the trial record. Consequently, Kirola cannot rely on her deposition testimony or statements presented in a declaration previously filed in support of her class certification motion to bolster the trial record for the purpose of establishing her standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130; cf. Simon v. Shearson Lehman Bros., 895 F.2d 1304, 1323 (11th Cir.1990) (when a party chooses not to present evidence at trial for strategic or tactical reasons, it is not an abuse of discretion to deny the party's request to re-open the record before entry of judgment).
22. Kirola avers that she suffered an actual injury as a result of encountering access barriers in and around her neighborhood. While recognizing that accessible programs, services and facilities may be available elsewhere in the City, Kirola contends that the City is obligated to ensure that its programs and services are accessible on a neighborhood basis. E.g., Dkt. 604, 20:8-9, 25:2-4. By extension, Kirola contends that she has standing to sue for access barriers in other areas of San Francisco that she did not actually encounter.
23. As support for her position, Kirola relies principally on Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 943 (9th Cir.2011) (en banc) ("Chapman I"). In that case, a mobility-impaired individual brought an individual Title III public accommodations action against a retailer, Pier 1, claiming that he encountered barriers at a particular location of a national retailer that impeded his access. The court held that when a plaintiff "has suffered an injury in fact by encountering a barrier that deprives him of full and equal
24. Kirola argues that like the plaintiff in Chapman I, it is unnecessary for purposes of standing that she actually encountered the barriers which she seeks to address, and that standing may be established based solely on her experience with facilities in her neighborhood. Chapman I, however, is distinguishable in at least two critical respects. First, Chapman I was an individual lawsuit and thus did not address the standards for evaluating standing in a class action. Second, the claims in Chapman I were premised on Title III of the ADA, as opposed to Title II, which does not require that each individual site at which a public service is offered be accessible, so long as the program, activity or service, "when viewed in its entirety," is readily accessible. See 28 C.F.R. § 35.150(a) & (a)(1) ("This paragraph does not ... [n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities."). "In contrast, Title III of the ADA, which governs places of public accommodation, imposes
25. Because the proper unit of analysis under Title II of the ADA is
26. The two out-of-circuit district court cases cited by Kirola are likewise unavailling. See Kerrigan v. Philadelphia Bd. of Elections, No. 07-687, 2008 WL 3562521, *17-18 (E.D.Pa.2008); Westchester Disabled on the Move, Inc. v. Cnty. of Westchester, 346 F.Supp.2d 473, 478 (S.D.N.Y. 2004). Both of those cases involved the provision of accessible polling places on a neighborhood basis, and presented issues including the threat of voter disenfranchisement and the fact that registered voters are specifically assigned to polling places near their registered addresses so as to encourage and facilitate voting. See, e.g., Kerrigan, 2008 WL 3562521, *1 (noting that the Philadelphia Board of Elections and the Commissioners of the City of Philadelphia "assign each registered voter to a specific division near his or her home" and estimating there to be between 1,000 and 1,200 polling places in the City of Philadelphia). The issues relating to the location of polling places and whether voters have access to a public entity's "program of voting" are separate and distinct from whether disabled persons have program access to the City's facilities and public right-of-way. Accordingly, the Court finds these cases to be inapposite.
27. In sum, the Court finds no merit to Kirola's contention that she need only establish that she encountered barriers within her neighborhood in order to have standing to seek injunctive relief with respect to the City's programs, services and activities at issue. She must instead prove that she was denied access to the foregoing in their entirety.
28. Kirola argues that she may satisfy her burden of demonstrating standing based on the experiences of persons other than herself; to wit, class members. Dkt. 672, 13:22-14:3. This contention also lacks merit. "[I]n class actions, the named representatives must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Pence v. Andrus, 586 F.2d 733, 736-37 (9th Cir.1978) (internal citations omitted); see also Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (holding that "the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured."). As such, "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea, 414 U.S. at 494, 94 S.Ct. 669; Cornett v. Donovan, 51 F.3d 894, 897 n. 2 (9th Cir.1995) ("if the representative parties do not have standing, the class does not have standing.").
29. Kirola cites Armstrong for the proposition that the experiences of other class members may be considered in assessing whether she has standing. Dkt. 672, 13:28. In Armstrong, a class of disabled prisoners and parolees brought a class action alleging that policies and practices related to parole and parole revocation
30. Kirola's analysis of Armstrong mixes apples with oranges. Armstrong discusses two separate components to standing: First, the named plaintiff's
38. Finally, Kirola argues that she need not demonstrate her standing to challenge each of the eleven policies and procedures she identified in post-trial briefing. Rather, Kirola now asserts that the City has an "overarching policy of leaving disability access barriers in place," and that she has standing to challenge this "official" policy. Dkt. 672, 1:16-28, 5:6-20:4, 25:18-19. She denies that this is a newly-asserted theory of liability, and claims that the Court characterized the case in this manner in its order granting her motion for class certification. Dkt. 681, 2:24-3:4.
39. As an initial matter, Kirola's contention directly contradicts her prior representation to the Court that she is specifically challenging the eleven policies and practices identified in her prior post-trial briefing. Dkt. 662, 13:12-14:17. That aside, Kirola's "overarching policy" argument makes no sense. The mere fact that an access barrier is left "in place" does not automatically demonstrate a violation of Title II of the ADA. Title II emphasizes "program access," which entails reviewing the program or service in its entirety, as opposed to whether every element of a facility through which a program or service is presented is fully accessible. See Daubert, 760 F.3d at 986. Consequently, a barrier may be left in place without necessarily violating Title II.
40. Kirola cites Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008), for the proposition that this Court, in determining standing, must look at the "case as a whole, rather than picking apart its various components to separate the claims for which the plaintiff will be entitled to relief
41. Irrespective of whether Kirola frames her challenge as one to an "overarching" policy or to eleven specific policies and practices, Kirola lacks standing in either instance. As will be established in the sections that follow, Kirola has not shown that she has suffered an injury in fact resulting from any access barrier she testified to having encountered. Having failed to make this showing, she cannot, by extension, demonstrate any injury resulting from any allegedly impermissible policy or practice.
42. Kirola must demonstrate that she has standing based upon
43. The City challenges Kirola's standing, arguing that she has failed to demonstrate that she suffered an injury in fact or demonstrated that her injuries will be redressed by a favorable decision in this action.
44. The Court agrees that Kirola has failed to carry her burden of establishing standing by a preponderance of evidence with respect to the challenged programs, services and activities. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Perry, 186 F.3d at 829.
45. To establish injury in fact under the ADA, a plaintiff must show that she has been deprived of "meaningful access" to a challenged service, program, or activity in its entirety. Armstrong, 275 F.3d at 861 (citing Choate, 469 U.S. at 295, 105 S.Ct. 712); Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir.2014) (holding that program access requires that "the city's system of sidewalks and pedestrian walkways," when viewed in their entirety, "be `readily accessible to and useable by individuals with disabilities.'"); 28 C.F.R. § 150(a). Whether program access is being provided "is necessarily fact specific." Pierce v. Orange Cnty., 526 F.3d 1190, 1222 (9th Cir.2008).
46. Kirola alleges that she encountered "numerous access barriers that denied, limited or interfered with her ability
47. Starting first with the City's system of sidewalks and pedestrian walkways, the Court finds that Kirola has failed to show that it is inaccessible and unusable in its entirety. The City's public right-of-way consists of approximately 2,000 miles of sidewalks, 27,585 street corners, and 7,200 intersections. RT 2391:23-25, 2447:6-18. Yet, Kirola only testified regarding accessibility issues she experienced with three sidewalks, a tree well, and a single street corner lacking curb ramps. RT 1381:14-21, 1384:13, 1386:221387:18. Even then, little, if any, testimony was offered or elicited as to the nature and extent of the uneven sidewalks from which the Court could ascertain whether the purported defect constitutes an access barrier within the purview of the ADA.
48. Although Kirola testified that, on occasion, she "had to make a conscious effort to take a different route" due to uneven sidewalks or missing curb ramps, RT 1384:810, 1382:8-9, the probative value of such testimony is undermined by the complete lack of any facts or details regarding any alternate route that she was required to take. See Cohen, 754 F.3d at 697 ("The ADA allowed [the city of] Carlsbad to compel disabled persons to travel a `marginally longer route' under some `limited circumstances,' as long as its programs were still accessible as a whole. The mere fact that some city sidewalks did not have curb ramps was therefore insufficient to create a triable issue as to whether Carlsbad violated Title II.") (citing Schonfeld v. City of Carlsbad, 978 F.Supp. 1329, 1341 (S.D.Cal.1997)); ADA Title II Technical Assistance Manual, II-5.3000 Curb Ramps ("Alternative routes ... may be acceptable under the concept of program accessibility in the limited circumstances where individuals with disabilities need only travel a marginally longer route."); c.f. Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir.2011) (noting that standing was shown at the pleading stage where "the plaintiffs have alleged
49. With regard to the City's RecPark program, which consists of approximately 220 parks spanning 4,200 acres of park space and 400 structures (i.e., clubhouses, recreation centers, etc.), Kirola complained of accessibility issues at only one park: Alamo Square Park. RT 2264:13-17, 2302:12-16, 1385:3-16, 1394:2-4.
50. Equally uncompelling is Kirola's testimony regarding her experiences at Balboa Pool, Garfield Pool and Rossi Pool. She alleges that Balboa Pool is inaccessible due to its steep entrance ramp and inadequate locker rooms, and that Garfield Pool lacks sufficient clearance in the locker room and restrooms. Though Kirola has not used Rossi Pool, she was deterred from going there based on the comments of others. RT 1388:5-6, 388:7-17, 1386:12-19. The fact that Kirola may have experienced accessibility issues with these three pools is insufficient to demonstrate that she suffered an actual injury resulting from the denial of meaningful access to the City's aquatic program. None of these three pools has been designated as a fully-accessible pool, and the City does not rely on them to provide program access. DTX F16.
51. Finally, Kirola has not shown an injury in fact resulting from the lack of program access to the City's library program. The only "barriers" she encountered were the occasionally misplaced step stools at three libraries (the Main Library and the Western Addition and Parkside Branch Libraries) which impeded her aisle access. RT 1386:1-2. However, the ADA applies to architectural barriers, not temporary or removable obstructions. See Sharp v. Island Restaurant-Carlsbad, 900 F.Supp.2d 1114, 1126-27 (S.D.Cal.2012) (misplaced chairs blocking the path of travel to a restroom were not architectural barriers under the ADA); see also Cal. Council of the Blind v. Cnty. of Alameda, 985 F.Supp.2d 1229, 1240 (N.D.Cal.2013) (noting that 28 C.F.R. § 35.133 does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs). Whether a barrier is temporary or removable presents a question of fact. See Cal. Council of the Blind, 985 F.Supp.2d at 1240 (noting that "the duration of, frequency of, and reason for the failure of accessible voting machines to operate properly is a question of fact.").
52. Based on the record developed at trial, the Court is persuaded that the misplaced step stools encountered by Kirola are not architectural barriers. On a daily basis, the City requires its library staff to use a Daily Facility Checklist to
53. Citing Chapman v. Pier 1 Imports, 870 F.Supp.2d 995 (E.D.Cal.2012) ("Chapman II"), Kirola argues that misplaced stools, in fact, may qualify as an accessibility barrier under the ADA. In Chapman II, the plaintiff brought an action against a retail store known as Pier 1 Imports ("Pier 1"), claiming, inter alia, that the store aisles were blocked by merchandise, which, in turn, impeded his access in violation of Title III of the ADA. In its summary judgment motion, Pier 1 argued that the obstructions were "only temporary," and that regulations promulgated under the Title III of ADA do not impose liability for "isolated or temporary" interruptions to accessibility. Id. (citing 28 C.F.R. § 36.211(b)).
54. Kirola argues that, like the merchandise in Chapman II, the stools are not merely "temporary" barriers because library staff only conduct a full inspection of facilities once per day, and therefore, the stools are not removed "as soon as possible." Chapman II is distinguishable. Whereas the merchandise in the Pier 1 store aisles was intentionally placed there by store employees, there is no evidence that the step stools were placed in the stacks as a routine matter by library staff. To the contrary, the limited testimony presented by Kirola on this issue suggests that the stools were placed in the aisle by other library patrons. In addition, unlike the plaintiff in Chapman II Kirola has made no showing that the occasional misplaced stools interfered with her ability to access library services at a particular library, let alone precluded her access to the City's network of libraries in its entirety. 28 C.F.R. § 35.150(a).
55. In sum, the Court finds that Kirola has failed to show, by a preponderance of the evidence, that she has constitutional standing to bring any of the claims alleged in her FAC. Accordingly, she lacks standing to pursue this action individually or on behalf of the class she was appointed to represent.
56. Even if Kirola had suffered an actual ADA injury, she has not shown redressability, as required under Lujan. In order to demonstrate redressability, a plaintiff must show that plaintiff "personally would benefit in a tangible way from the court's intervention." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 n. 5,
57. Kirola seeks a broad permanent injunction relating to virtually every aspect of the City's operation and management of its facilities, programs and services. Dkt. 635. However, the nexus between Kirola's injury and the relief sought is lacking.
58. With regard to curb ramps, Kirola seeks an injunction requiring the City to, within ten years of judgment, construct an accessible curb ramp at every existing or potential curb ramp location, except for those locations where the City is able to document that a curb ramp is not required. Dkt. 632, 2:24-3:10.
59. Redressability also is absent with respect to Kirola's accessibility complaints pertaining to the City's sidewalks. Kirola proposes an injunction requiring the City to inspect and repair all sidewalk-related barriers along its 2,000 miles of sidewalk in 10 years, and thereafter implement a 15-year inspection cycle — rather than the current 25-year cycle under SIRP (the City's current sidewalk inspection plan). Dkt. 635, 5:1-5. She also insists that, within ninety days of judgment, the City identify alternative, accessible routes wherever the City contends that removal of a sidewalk barrier is unnecessary for program access. Dkt. 635, 4:6-27.
60. Underlying Kirola's proposal for a shorter inspection cycle is her failure to recognize that SIRP operates in tandem with ASAP (i.e., Accelerated Sidewalk Abatement Program). Whereas the SIRP is a "proactive" program in which the City seeks out sidewalks in need of repair, the ASAP is a "reactive" program in which the City repairs sidewalks in response to public
61. With regard to the City's RecPark facilities and pools, Kirola seeks an injunction directing the City to: (1) conduct a survey of every pool, park and recreational facility in the City within nine months of judgment, identifying every facility containing a barrier under ADAAG; (2) prepare a program access plan within eighteen months; and (3) remove all barriers necessary to ensure program access in ten years. Dkt. 632, 7:12-28. Kirola has not established how this proposed remedy would redress any alleged injury.
62. Kirola complained about barriers at Balboa Pool, Garfield Pool and Rossi Pool. The law is clear that the City has no obligation under Title II of the ADA to ensure that each facility through which it offers its aquatics program is fully accessible. Nevertheless, at the time of trial, the City had already embarked on a barrier removal project at Garfield Pool, RT 1813:13-1814:4, and Rossi Pool and Balboa Pool have since been scheduled for barrier removal, Dkt. 658-1. As such, Kirola would not personally benefit in a tangible way from the Court's intervention, since the few barriers she encountered are already being addressed by the City on a more expeditious schedule as compared to her proposed remedy.
63. The same lack of redressability is evident in terms of Kirola's experience using City parks. The only park at which Kirola claimed to have encountered accessibility barriers was Alamo Square Park. RT 1385:5-15. Even if Kirola's vague testimony was sufficient to demonstrate that she was denied meaningful access to Alamo Square Park — which it is not — no showing has been made that her proposed remedy would correct those purported defects. In addition, a survey of Alamo Square Park to ascertain its compliance with ADAAG would not benefit Kirola because ADAAG's dimensional requirements do not apply to outdoor recreational facilities or open spaces. RT 2048:9-15; 2064:21-25.
64. Finally, with regard to the City's libraries, Kirola seeks an injunction requiring the City to: (1) complete work on both the Bayview Branch Library and the North Beach Branch Library within 2 years; and (2) rectify all alleged barriers identified by Kirola's experts within 120 days. Dkt. 632, 8:27-9:3. However, Kirola presented no evidence that she encountered any accessibility barriers at either of these libraries, or that she has ever attempted, let alone desires, to use either facility. Nor does her proposed injunction bear any relation to the injury she allegedly sustained as a result of having encountered misplaced step stools at three other libraries. As for the second aspect of the proposed remedy, i.e., to rectify barriers identified by her experts, none of them cited the presence of step stools in library aisles. As such, Kirola's proposed remedy regarding the library system would not address her alleged injury, i.e., encountering stools in the stacks at three other libraries.
65. The Court concludes that Kirola has failed to satisfy her burden of demonstrating that any of her injuries resulting
66. Even if Kirola had satisfied the Lujan test for constitutional standing, she has failed to meet the further requirement applicable in cases where prospective injunctive relief is being sought; that is, that injury is likely to recur. "Likelihood of recurrence is established when the plaintiff shows that `the defendant had, at the time of the injury, a written policy, and that the injury
67. There must be "a very significant possibility" that future harm will ensue. Nelsen v. King Cnty., 895 F.2d 1248, 1250 (9th Cir.1990). In the absence of an immediate threat, federal courts must exercise restraint in interfering with government operations. Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 850 (9th Cir.2001) ("This `well-established rule' bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury." (quoting Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042-43 (9th Cir.1999)).
68. Here, Kirola contends that her injuries are likely to recur because they arise from eleven City policies which allegedly violate the ADA. Dkt. 662, 13:15-11. Thus, to show a likelihood of recurrence, Kirola must demonstrate an injury that "stems from" each policy. See Taylor, 488 F.3d at 1199. Each policy is discussed below.
70. The Curb Ramp and Sidewalk Transition Plan affirms the City's previously existing policy of achieving curb ramp saturation; that is, the practice of installing a curb ramp at every pedestrian crossing in the City. DTX G18. According to Kirola, the City's transition plan "does not comply with the three-year implementation period and the January 26, 1995 deadline established by Title II of the ADA (28 C.F.R. § 35.150(c)) for the completion of any barrier removal necessary for program access." Dkt. 662, 13:15-18.
71. Kirola has failed to demonstrate that she suffered any injury that stems from the Curb Ramp and Sidewalk Transition Plan. Program access does not require curb ramp saturation. See Cohen, 754 F.3d at 696 (holding that Title II regulations do "not require the City to build curb ramps at every corner during its transition to compliance with the ADA."). As such, the fact that Kirola encountered a missing curb ramp at one corner and bi-directional curb ramps at another is not attributable to any deficiency in the Curb Ramp and Sidewalk Transition Plan, which actually provides more access than is required by Title II. In addition, the evidence presented at trial shows that Kirola routinely and independently travels across the City, using the City's public right-of-way, public transportation systems, and paratransit service, which undermines her claim that she has been injured by the denial of program access resulting from the occasional missing curb ramp. RT 1380:12-22, 1392:17-23, 1393:12-23; see also Findings of Fact ¶ 142.
72. Next, Kirola complains that the City's historic curb ramp design standards in effect from 1994 to 2004 resulted
73. Kirola next complains that the SIRP "only inspects and repairs access barriers on a 25 year cycle, and ... fails to comply with the January 26, 1995 deadline for program access." Dkt. 662, 13:18-20. That argument ignores that SIRP operates in tandem with ASAP, a program which ensures that accessibility complaints regarding sidewalks are addressed and rectified, typically within ninety days. Given that there are 2,000 miles of sidewalks in the City, it is inevitable that Kirola will occasionally experience challenges resulting from cracked or uneven pavement. The fact that defects can and do arise — attributable, for example, to expanding tree roots or occasional ground movement — does not ipso facto demonstrate that there is a defect in any written policy that caused injury to Kirola.
74. The City's Paving Guidelines permit the City to defer curb ramp installation for a period of up to twenty-four months in cases where there is a pre-planned project that would require demolition of the newly constructed curb ramp. DTX N23. While acknowledging that she has not been negatively impacted by this policy, Kirola nonetheless contends that she faces a "real threat of injury" given her daily use of sidewalks throughout the City. Id. at 19:1-8. However, no evidence was presented at trial showing that the City has actually deferred installation of a curb ramp under the Paving Guidelines. The mere possibility that the City will delay construction of a curb ramp and that Kirola may be injured as a result is simply "`too speculative to support standing.'" Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir.2014) (quoting Friends of the Earth, 528 U.S. at 190, 120 S.Ct. 693). As the Ninth Circuit has explained, a plaintiff "cannot manufacture standing through bald assertion, contradicted by the record." Id. (finding that the plaintiff had not shown a real or immediate threat of future injury in regard to the claims asserted). The Court thus finds that Kirola has not established that there is a substantial probability that she will be harmed in the future as a result of the City's Paving Guidelines.
76. Kirola complains that the City's facilities transition plan, i.e., UPhAS, fails to require the removal of barriers that deny program access until the particular facility is scheduled for renovation. Dkt. 662, 13:27-14:4. Yet, no evidence has been presented that Kirola has been deprived of meaningful access to any program, service or activity because of the lack of access improvements at an existing facility. Though Kirola complained of purported barriers at a few libraries and pools, there is no evidence that she was denied meaningful access to other facilities within San Francisco or the City's programs and services in their entirety. Moreover, every library Kirola uses regularly was completely renovated prior to trial, and the three pools about which she complained have since been renovated or are scheduled for renovation. The Court thus finds that Kirola's has not
77. Kirola challenges "the City's policy as stated on its [RecPark] website that an `accessible' park need only provide an `accessible entrance' and `at least one recreational opportunity[.]'" Dkt. 662, 13:4-27. Kirola asserts that the RecPark website's definition of "accessible" constitutes a City policy "of general application" relating to program access and argues that the policy is discriminatory because it does not require the City to provide mobility disabled individuals with meaningful and equal access to recreation opportunities. Dkt. 672, 16:6-12.
78. The flaw in Kirola's claim is that it fundamentally mischaracterizes the nature of the information provided on the RecPark website. Despite Kirola's claim to the contrary, the website does
79. Even if the website defined the meaning of "accessible" as a matter of general policy, Kirola has failed to establish that she suffered any injury as a result of the policy. Of the City's 220 parks, Kirola complained only that the accessible entrance at Alamo Square Park was steep — not that it was inaccessible. RT 1385:5-8. Perhaps more fundamentally, Kirola cannot legitimately allege that she suffered any harm stemming from a website which she never used.
80. Kirola contends that "the City's policies and procedures regarding new construction and alterations ... do not require a close-out inspection for compliance with federal disability access design standards or specific sign-off from the relevant City official that a project is in full compliance with those standards as built." Dkt. 662, 9:3-10.
81. At trial, Kirola offered no testimony regarding any architectural barriers at any newly-constructed or renovated library, swimming pool or other RecPark facility. In the absence of such evidence, Kirola cannot show that she suffered an injury in fact or that such injury stems from any City policy governing new construction and alterations.
82. Kirola complains that the City's maintenance policies and procedures "do not set specific and prompt deadlines for the identification and repair of items that are broken, non-operational, or in need of repair." Dkt. 662, 14:9-11.
83. Under 28 C.F.R. § 35.133, public entities "shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities[.]" 28 C.F.R. § 35.133(a). The section, however, "does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs." 28 C.F.R. § 35.133(b); see also U.S. Dep't of Justice Technical Assistance Manual, II-3.10000 Maintenance of Accessible Features ("Where a public entity must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. An isolated instance of placement of an object on an accessible route, however, would not be a violation, if the object is promptly removed.").
84. At trial, Kirola failed to identify a single barrier that she encountered as a result of something being "broken, non-operational, or in need of repair," much
85. Kirola alleges that the City's ADA grievance procedures violate Title II's program access requirements on the ground that the City's "written complaint policies and forms make no requirement that disability access barriers be removed within any particular time period, but instead permit the City to take up to two years to remove barriers[.]" Dkt. 662, 14:4-6; Dkt. 672, 25:6-9.
86. Kirola lacks standing to challenge the City's grievance procedure.
87. Kirola complains that the City has failed to adopt an overarching "written policy or procedure regarding the identification and removal of safety hazards to persons with mobility disabilities." Dkt. 662, 14:15-17.
88. At trial, Kirola failed to offer any testimony demonstrating that she encountered any "safety hazards" at any library or RecPark facility. Though Kirola complained of steep paths at Alamo Square Park, the probative value of such testimony is undermined by the lack of any objective data (such as actual measurements of those paths) to quantify her claim. Additionally, there is no evidence that those conditions denied her program access.
89. The Court is likewise unpersuaded by Kirola's testimony regarding her one-time experience in which her wheelchair was caught in an exposed tree well. The record presented at trial shows that, in fact, there was an unobstructed 48-inch-wide accessible path of travel around the tree well. RT 1383:3-12, 431:3-10; PTX 4140Y. The Court therefore finds that Kirola has failed to establish any actual and concrete injury in fact in regard to the City's policies related to removal of safety hazards. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.
90. Kirola asserts that the City has not adopted or implemented a self-evaluation or transition plan in violation of
91 Section 11135 provides, in pertinent part, that:
Cal. Gov. Code § 11135(a). Regulations promulgated to implement Section 11135 insofar as discrimination based on physical or mental disabilities is concerned, state that a transition and self-evaluation plan "should be required" by the "responsible State agency." Cal. Code Regs., tit. 22, §§ 98251(a), 98258.
92. The City argues that Kirola lacks standing to challenge any alleged non-compliance with California Government Code § 11135 or its regulations based on her failure to demonstrate that she (1) was deprived program access to any state-funded program or activity or (2) encountered any access barriers to a state-funded program or activity because of the alleged absence of a self-evaluation or transition plan. Dkt. 666, 20:20-24. The Court agrees. At best, Kirola has presented only bare and conclusory allegations of injury resulting from the City's failure to develop and implement a self-evaluation or transition plan. Moreover, there is no evidence that each of the specific programs to which she was allegedly denied access is state-funded or otherwise receives financial assistance from the state. See Cal. Gov't Code § 11135. As such, Kirola has not shown that she suffered any injury that stems from the City's alleged failure to comply with Section 11135 or its regulations.
93. Kirola has failed to establish that she sustained any injury which stems from any written policy. A fortiori, she has not shown a likelihood of recurrence, which is necessary for standing where prospective, injunctive relief is sought. Taylor, 488 F.3d at 1199. Thus, separate and apart from the Lujan requirements for Article III standing, the Court finds that Kirola lacks standing to seek the relief she seeks in this action.
94. Kirola argues that any deficiencies in her standing as a class representative can be rectified by allowing class members who testified at trial to be substituted in her stead. Dkt. 662, 15:4-16:12. As support, Kirola cites several cases where courts permitted such a substitution where the class representative's claims became moot. E.g., United States Parole Comm'n v. Geraghty, 445 U.S. 388, 415 n. 8, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ("If the named plaintiff's own claim becomes moot after certification, the court can re-examine his ability to represent the interests of class members. Should it be found wanting, the court may seek a substitute representative or even decertify the class."); Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir.1977) ("We reverse and remand for a ruling on the outstanding class certification motion, including a determination [of] whether Wade may remain as the class representative despite the mootness of his individual claim or whether putative class members with live claims should be allowed to intervene.").
95. The issue here is not mootness, however, but the lack of standing. As a result, substitution is not an appropriate solution to Kirola's lack of standing. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003)
96. In view of the above, the Court concludes that Kirola cannot rectify her lack of standing by substituting additional class members as class representatives. In addition, permitting a substitution at this late stage of the proceeding would be prejudicial to the City and otherwise futile for the reasons discussed below.
97. The City contends, in the alternative, that even if Kirola had satisfied her burden of demonstrating Article III standing, she would not prevail on the merits. The Court agrees, and finds that Kirola has failed to establish that she is entitled to relief on any of the claims alleged in the FAC.
98. Plaintiff bears the burden of proving, by a preponderance of the evidence, that the City has violated the ADA. See In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir.2001) ("The standard of proof generally applied in federal civil cases is preponderance of evidence.").
99. The City's programs and services at issue consist of its public-right-of-way system along with its library, aquatic and RecPark programs. See, e.g., Cohen, 754 F.3d at 695. The Court therefore considers whether Kirola has shown that each of these services or programs is inaccessible in its entirety. In addition, the Court considers her challenges to certain of the City's policies and procedures, where pertinent.
100. "Under Title II of the ADA, the standard for compliance is `program access,' that is, when viewed in its entirety, the city's [programs, services and activities] must be `readily accessible to and useable by individuals with disabilities.'" Carter v. City of Los Angeles, 224 Cal.App.4th 808, 821, 169 Cal.Rptr.3d 131 (2014) (citing 28 C.F.R. § 35.159(a), 45 C.F.R. § 84.22(a), and Cal. Gov. Code § 11135(b)). ADA regulations authorize a public entity to enlist a number of alternative methods to satisfy its program access obligations:
Id. § 35.150(b)(1) (emphasis supplied). Program access does not require that each particular facility through which a program is offered be fully accessible. See Daubert, 760 F.3d at 987. Rather, the Court must construe the particular program or service "in its entirety" to determine whether it is accessible. Id.
101. Based on the record presented at trial, the Court finds that Plaintiff has failed to establish a lack of program access with regard to the City's public right-of-way, i.e., its system of sidewalks, curb ramps and crosswalks.
102. As an initial matter, Kirola offered no evidence or testimony regarding any accessibility issues with the City's cross-walks. She did, however, identify three sidewalks which she claims were problematic due to cracks or bumps in the concrete, one instance where her wheelchair became stuck in a tree well (the area around the base of the tree), and one corner lacking curb ramps. As discussed above, however, the Court finds that Kirola's minimal testimony regarding accessibility issues with the City's right-of-way in its entirety, coupled with her vague testimony, is insufficient to demonstrate that she was denied meaningful access to the City's right-of-way or that the barriers she encountered violated either federal or state accessibility laws.
103. The testimony of class members and Plaintiff's experts fares no better. Like Kirola, various class members and mothers of class members testified to having encountered cracked pavement, potholes, uneven sidewalks, and missing or difficult-to-use curb ramps. RT 541:9-543:21, 1002:11-22, 1031:20-1033:17, 1232:10-1233:4. The probative value of such testimony is undermined by the non-specific, generalized nature of the testimony offered.
104. Kimbrough, the mother of a minor class member, claimed that street corners lacking curb ramps were prevalent in her neighborhood. 823:16-829:22. When asked by Class Counsel which locations she encountered problems, Kimbrough answered, "All of them really," RT 823:19-20, and later adding that, "They are quite prevalent," RT 825:9-11. Yet, the only specific example discussed was the intersection at Paris Street and Avalon Avenue. RT 826:8-24, 829:1-2. Upon cross-examination, Kimbrough conceded that some of the street corners at this intersection, in fact, had curb ramps, and she had difficulty ascertaining which corners did and which ones did not. RT 824:13-825:11, 844:11-847:4.
105. Similarly, Grant had difficulty providing specific locations near the Embarcadero BART station where he encountered problems. RT 878:16-888:13. O'Neil complained about "many bad curb ramps," yet provided few specifics. RT 541:9-543:21. Cherry complained about cracked and uneven sidewalks in her neighborhood, but did not specify where she experienced these problems. RT 1031:20-1033:17.
106. Notably, none of the problem areas cited by class members or their parents were confirmed by Plaintiff's experts as failing to comply with federal or state access laws. Although Kirola's experts
107. Based on the record presented at trial, the Court is satisfied that the City's public right of way system, when viewed in its entirety, affords program access to mobility-impaired individuals. The lack of curb ramps at some street corners does not amount to a lack of program access. See Bird, 303 F.3d at 1021 ("Compliance under the [ADA and Rehabilitation Act] does not depend on the number of locations that are wheelchair-accessible; the central inquiry is whether the program, `when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.'") (citations omitted). Indeed, Title II of the ADA does not require the installation of curb ramps at each and every street corner. See Cohen, 754 F.3d at 696; accord Carter, 224 Cal. App.4th at 821, 169 Cal.Rptr.3d 131; see also ADA Title II Technical Assistance Manual, II-5.3000 Curb Ramps ("To promote both efficiency and accessibility, public entities may choose to construct curb ramps at every point where a pedestrian walkway intersects a curb. However, public entities are not necessarily required to construct a curb ramp at every such intersection."). Despite this, the City endeavors to achieve curb ramp saturation; that is, a curb ramp at every corner. To that end, the City installs approximately 1,200 new curb ramps each year. RT 2785:172787:13, 2789:3-2790:18; PTX 0022 [003798]. Consistent with DOJ guidelines, the City prioritizes installation of these curb ramps by taking into account citizen requests and whether the proposed ramps are in high utilization areas, including governmental offices, public facilities, public transportation, public accommodations, and commercial districts. RT 1441:11-1442:15, 1617:2-1619:13, 1956:6-1958:16, 2416:19-22; PTX 0022; DTX G18; see also 28 C.F.R. § 35.150(d)(2) (providing that public entities should give "priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas").
108. Moreover, the City's curb ramp design standards in effect since 2004 require bi-directional curb ramps and the use of smooth transitions. Each curb ramp is uniquely designed for its designated location, and each design is cross-checked for ADA compliance pursuant to the Quality Assurance Checklist. The City utilizes a curb ramp grading system, paving guidelines, an inspection program and a priority matrix (part of the Curb Ramp and Sidewalk Transition Plan) to ensure that sidewalks remain accessible and curb ramps are installed and/or repaired where they are needed the most. Critical data regarding the City's progress is stored in the CRIS database, from which the City is able to ascertain where curb ramps are to be installed. The transition plan sets a timeframe for completing curb ramp saturation and identifies funding sources. These measures support the conclusion that the City is in compliance with its Title II obligations. E.g., Schonfeld, 978 F.Supp. at 1341 (finding that where a city "has constructed curb ramps where necessary to provide access along highly-trafficked routes, has allocated funding and established a schedule for future curb ramp construction, and is addressing the particular intersections identified by plaintiffs as well as
109. In passing, Kirola attempts to make much of Hecker's 2009 expert report in which he found that the City had not yet installed every curb ramp necessary for program access. Dkt. 604, 6:20-22; see also RT 2795:19-2796:2. The trial record, however, does not establish the basis for his opinion or whether the opinion was still valid based on the conditions existing at the time of trial. In view of the evidence presented at trial showing the City's continuing progress toward program access, the Court finds that Hecker's 2009 program access conclusions, without more, fail to satisfy Kirola's burden of
110. With regard to sidewalks, Kirola's complaints present an issue of maintenance, as opposed to construction. In particular, she complains that the City only proactively inspects its 2,000 miles of sidewalks on a 25-year cycle, which she claims is too long. This contention lacks merit. The City inspects approximately 200 blocks per year, with the areas of the greatest pedestrian traffic given the highest priority. RT 2453:6-17. In view of the City's financial and staffing constraints, the Court finds nothing objectively unreasonable with this approach. It is also important to note that the City's inspection policy operates in conjunction with the SIRP, which as discussed more fully above, ensures that complaints regarding sidewalk accessibility are given high priority and remediated, whenever possible, within ninety days. RT 2454:13-2455:22. The City's proactive and reactive approach to ensuring sidewalk accessibility is reasonable, appropriate and supports a finding that the City affords program access to its sidewalks. See Schonfeld, 978 F.Supp. at 1341.
111. Program access to the City's public right-of-way also is enhanced by paratransit services and public transportation. RT 1636:4-12. The City operates and subsidizes a paratransit system that offers van and taxi service for persons with disabilities who are unable to use public transportation. RT 1634:18-1635:1, 1635:21-1636:3. Kirola testified that she regularly uses public transportation and paratransit, sometimes up to five or six times per week. RT 1391:9-17. However, she argues that paratransit is not an effective substitute because not all mobility-impaired persons are able to use its services, and it is not always reliable. Dkt. 618, 13:1-5. But the City does not rely exclusively on paratransit or its public transportation system to provide access for mobility-impaired persons. Those services are simply additional means utilized by the City to enhance access for mobility-impaired and other disabled persons. See 28 C.F.R. § 35.150(b)(1). That the system may not operate perfectly at all times does not show that the City has failed to provide program access to its public-right-of-way system.
112. Kirola also complains that the City has failed to establish a definition of "program access" with respect to the public right-of-way, and that the City has failed to show that each allegedly non-complaint curb ramp identified at trial is the result of site constraints. Dkt. 604, 9:22-23; Dkt. 618, 5:7-10. The flaw in this
113. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's public right-of-way.
114. The City's library program is presented through its network of libraries, which consists of a Main Library and twenty-seven branch libraries. RT 2222:13-15. At the time of trial, the City's Main Library and seventeen branch libraries had been made fully accessible, pursuant to the BLIP (Branch Library Improvement Program). Renovations of the three remaining libraries will be completed by 2014. RT 2227:7-21; 2132:23-2135:19; 1797:5-19. The three branch libraries that were not renovated under the BLIP program had access barriers removed in the 1990's, and since 2004, were the subject of additional access improvements, including automatic door openers. RT 1796:25-1797:4. Hecker, the City's expert, credibly testified that the number, distribution and features of the City's accessible libraries are sufficient to provide meaningful access to its library program. RT 2763:25-2764:9.
115. Kirola has failed to carry her burden of proving that the City's library program, when considered in its entirety, fails to provide program access for mobility-impaired persons. Neither Kirola nor any class member testified to having encountered any architectural barriers at any of the City's twenty-eight libraries. Although Kirola occasionally encountered misplaced stools at three libraries, no evidence was presented that the stools were anything other than a temporary obstruction, or that they impeded her or any class members' ability to utilize any service at those individual libraries or the City's library program in its entirety. Likewise, none of Kirola's experts offered any opinions or findings specifically regarding the errant library stools or any testimony to support her claim that the City's library program fails to afford program access.
116. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's library program.
117. The City operates nine public swimming pools as part of its aquatic program. RT 2763:21-2765:5. As of 2009, six of the nine pools were made accessible. RT 2767:82769:17. At trial, Hecker credibly testified that the number and distribution of accessible pools located throughout San Francisco is sufficient to provide meaningful access to the City's aquatic program. RT 2768:4-11.
118. Neither Kirola nor class members presented any compelling evidence to establish a denial of program access to the City's aquatics program. The three pools Kirola complained about were not designated as accessible at the time of trial. However, program access does not require the City to make
119. The testimony of class members likewise fails to demonstrate a lack of program access. Kimbrough complained that the ramp at Balboa Pool is too steep for her younger disabled daughter to access the pool area and watch her sister take
120. The Court finds that Kimbrough's testimony fails to demonstrate a denial of program access. Watching a sibling take swim lessons is not a program, activity, or service provided by the City. See Daubert, 760 F.3d at 987 ("experiences that are merely incidental to normal government functions are not fairly characterized as government programs under 28 C.F.R. § 35.150."). But even if Balboa Pool were inaccessible, the fact remains that there are a variety of other pools which are fully accessible and available to her, including Coffman pool, which is only a mile further away.
121. Monasterio, also a mother of a class member, testified that the closest swimming pool to her is Garfield Pool, which lacks "a safe space for her to sit and shower." RT 1233:21-24. Although Monasterio thought Garfield Pool was designated as accessible, it is, in fact, designated as having only limited accessibility. RT 1234:10-12; DTX F16. In any event, Monasterio's negative experience with one of the City's nine pools does not demonstrate a denial of program access to the City's aquatic program.
122. Cherry testified that she once attempted to take a swimming class at MLK Pool but that she had been forced to discontinue the class as a result of the pool's lift being consistently broken over a one-month period. RT 1043:15-1045:19. The inoperability of the lift presents a maintenance, as opposed to a barrier, issue. Nonetheless, the temporary inaccessibility to a swim class at a particular pool does not demonstrate a lack of program access, since the City is not required to provide identical services at each pool. See Pierce, 526 F.3d at 1222 ("We also emphasize that the district court should look at the offerings as a whole and in their entirety and thus the court is not required to ensure that each individual program or service offered at Theo Lacy and Musick is offered in complete parity with an offering at the Central Jail.").
123. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's aquatic program.
124. Kirola's evidence regarding the City's RecPark program similarly fails
125. Cherry, Kimbrough and Monasterio testified regarding accessibility issues at a handful of the City's 220 parks. Much of the testimony was sparse and non-specific. For example, Cherry claimed that all of the parks in her area "need help" and "haven't been maintained the way they should," but she did not elaborate further. RT 1041:1-5. Monasterio stated that her daughter could not enter the Tea Garden, but did not explain why. RT 1237:23-1238:1. Other accessibility complaints pertained to issues inherent in the terrain. Monasterio stated that the paths at Glen Canyon Park are uneven or unpaved. RT 1234:16-1237:2. Yet, she acknowledged that the park is located in a "Eucalyptus forest" that is "very wild." RT 1234:16-1237:2. Similarly, Kimbrough complained about steep pathways leading to the playground at Holly Park, which is located at the "top of a hill." RT 837:19-838:5. The testimony of class members, at best, shows that they occasionally encountered barriers at certain parks; however, it does not establish that they were denied access to RecPark programs, services and activities in their entirety. Title II of the ADA mandates meaningful access on a program access level, not on a neighborhood or facility-specific basis.
126. In contrast, the City presented compelling evidence to demonstrate its compliance with Title II of the ADA. The athletic fields, play areas and recreation centers (along with open space that is provided at virtually every park), represent core features that together provide the range of services, programs and activities available at the City's parks. Across San Francisco, the City provides twenty accessible athletic fields, and eight additional athletic field facilities that were, at the time of trial, in the planning phase and either fully funded or in design or construction. RT 1818:3-18; DTX F34. Notably, Hecker credibly opined, based on his review of the "blue dot" designations determined Scott, as well as his training, knowledge and experience, that the number and distribution of these twenty accessible athletic fields is sufficient to provide program access to the City's athletic programs. RT 2769:18-2771:2.
127. The City provides forty-three accessible Recreation Centers and Clubhouses, which have either been renovated since 2000, or received a specific barrier removal since 1992. Additional facilities are "in the pipeline" for renovation. RT 1816:5-1817:1; DTX F40. Focusing solely on Recreation Centers, which are larger than Cluhouses and include a gymnasium, fifteen out of twenty-three facilities are accessible, and five additional Recreation Centers have received funding for access renovations, or are already in design or construction. DTX 40. The number and distribution of accessible Recreation Centers and Clubhouses are sufficient to provide program access to the programs housed in these facilities. RT 2771:3-2772:12. Likewise, the City provides an equitable distribution of accessible children's play areas throughout San Francisco. RT 1815:9-20; PTX 148A.
128. Kirola contends that the Community Garden Program is not accessible. The Community Garden is a program intended for people who do not have backyards,
129. Kirola, through her experts, also asserts that the City fails to provide program access in its parks, because some "unique" park facilities are not "fully accessible" and "ADAAG-compliant." This assertion is uncompelling for a number of reasons. First, this contention erroneously focuses on a "unique facility," without identifying any unique program that is only offered at that facility. Second, because ADAAG does not apply to playgrounds or to outdoor developed recreational areas, Kirola has applied an inapplicable standard. In any event, as Kirola's experts readily acknowledged, program access is a much more subjective standard than ADAAG-compliance, RT 1366:3-13, and only a small portion of a particular park must be accessible in order to provide the requisite program access, RT 717:10-21.
130. Kirola argues that Golden Gate Park is unique and therefore must be fully accessible. Assuming arguendo that Golden Gate Park should be analyzed in isolation, the Court finds that the City provides meaningful access thereto. Golden Gate Park has an extensive network of accessible paths, with accessible parking and accessible restrooms disbursed throughout the park, providing ample opportunity for class members with mobility disabilities to enjoy Golden Gate Park's varied landscapes. RT 1819:2-1821:20, 1824:14-1825:6; DTX F37. The popular destinations in Golden Gate Park — namely, the Conservatory of Flowers, the Arboretum and the Japanese Tea Garden, are also accessible.
131. Even if the Court accepted Kirola's premise that the path of travel through the formal gardens in front of the Conservatory of Flowers interferes with program access, her analysis ignores additional accessible parking on JFK Drive, which offers a shorter route to the Conservatory entrance. RT 2112:24-2114:6; DTX F37. The Arboretum offers an extensive network of accessible trails (evaluated according to the proposed federal standards for outdoor areas), and two sets of accessible restrooms. RT 2114:7-2116:23; DTX F37.5. The Japanese Tea Garden has accessible paths, to the extent practical, without necessitating fundamental alterations to the facility. RT 1360:20-1362:1. In any event, additional improvements for the Japanese Tea Garden were scheduled to be completed shortly after trial, and will further enhance access to the Tea House. RT 2325:4-20.
132. Similarly, Kirola has made an insufficient showing of inaccessibility as to Dolores Park. At the time of trial, RecPark was commencing a complete $16 million renovation of Dolores Park that will render the park completely accessible. RT 2278:32279:12. RecPark is also planning renovations at Glen Canyon Park and estimates the cost at $20-$40 million. The 2008 Bond provides $5.8 million for Glen Canyon Park, and RecPark will prioritize work there based on community input. RT 2279:13-2280:14.
134. Not every aspect of a facility where a program is offered must necessarily be fully accessible. See Daubert, 760 F.3d at 987. Nor does Title II of the ADA require complete parity of services at each of the facilities through which the City offers its programs. See Pierce, 526 F.3d at 1222; see also RT 717:10-21 (testimony by Plaintiff's expert that only a "small part of a park" must be accessible to provide program access). That aside, Kirola overlooks the fact that the City's "blue dot" designation is not intended to signify that every element of the facility was 100 percent compliant with all applicable facilities access regulations; rather, it signifies that the facility was fulfilling the City's program access intent under UPhAS. RT 1464:14-23. In other words, a blue dot indicates only that the facility offers some accessible program, not that every physical element of the facility is compliant with disability access regulations. In addition, Kirola's arguments regarding the "blue dot" facilities are unpersuasive given that her experts admittedly did not inspect each of the City's "blue dot" libraries, pools, and parks; as to those "blue dot" facilities which they did visit, their site assessments were shown by the City to be unreliable.
135. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's RecPark program.
136. Pursuant to 35 C.F.R. § 35.151, the City has elected to use ADAAG as its standard for newly constructed or altered facilities. RT 1919:20-24. According to Kirola, the City's policies and practice are insufficient to ensure "strict compliance" with ADAAG as to City facilities newly constructed or altered after January 26, 1992. Dkt. 604, 22:1124:5. In particular, Kirola contends that her experts' inspections of the City's libraries and parks revealed disability access barriers in violation of ADAAG or the California Building Code. Id.
137. The Court has found the opinions of Kirola's experts, including those relating to the City's compliance with ADAAG and the California Building Code, to be unreliable. E.g., Findings of Fact ¶ 205-228. Among other things, Kirola's experts relied on unqualified individuals to conduct their inspections, and applied faulty and inconsistent methodologies and inapplicable access requirements. They also failed to properly take into account dimensional tolerances and their impact on the variation. Cherry v. City Coll. of San Francisco, C 04-04981 WHA, 2006 WL 6602454, *6 (N.D.Cal. Jan. 12, 2006) ("[T]he burden is on plaintiffs to prove that the variance exceeds the allowed tolerance. It is not enough to simply show that a particular bathroom stall, for example, is less than the required width. The approximate extent of any shortfall must be proven. And, the dimensional tolerance at the time of construction must be proven.").
138. In any event, the few isolated departures from ADAAG's dimensional requirements in newly constructed or renovated facilities identified by Kirola's experts do not establish any systemic deficiency in the City's policies or practices
139. In sum, the Court finds that the few variations from ADAAG or the California Building Code with respect to new construction or alterations are insufficient to show that Plaintiff or class members were denied meaningful access to the City's programs, services or activities or that they are entitled to relief on a class-wide basis.
140. Title 28, Code of Federal Regulations, section 35.107(b), provides that: "A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part." 28 C.F.R. § 35.107(b). Kirola argues that the City's complaint process is deficient because it fails to provide for "prompt and equitable" resolution, as specified in § 35.107(b). Dkt. 604, 15:22-16:8.
141. The City argues that there is no private right of action to enforce 28 C.F.R. § 35.107(b). Dkt. 666, 17:27-18:6. Although there is no controlling authority on this specific issue, the Ninth Circuit's reasoning in Lonberg supports that conclusion.
142. The rationale underlying Lonberg applies equally to the question of whether the grievance procedure regulation is subject to private enforcement. Like ADA transition plans, the existence or non-existence of a grievance policy does not, in itself, deny a disabled person access to a city's services. A public entity may be fully compliant with Title II without having drafted a grievance policy, let alone a grievance policy that mandates specific deadlines for reaching a resolution on all complaints. See Lonberg, 571 F.3d at 851;
143. Other circuit and district courts have uniformly concluded that no private right of action exists to enforce 35 C.F.R. § 35.107(b). See Duffy, 452 Fed.Appx. 200, 202 ("[T]here is no private right of action to enforce regulations regarding public entities' ADA grievance procedures[.]"); Giustiniani v. Fla. Dep't of Fin. Servs., No. 3:11-cv-792-J-37 MCR, 2012 WL 2127733, *2 (M.D.Fla. June 12, 2012) (holding that 28 C.F.R. § 35.107(b) does not create a private right of action); DeLeon v. City of Alvin Police Dep't, No. H-09-1022, 2010 WL 4942648, *4 n. 10 (S.D.Tex. Nov. 30, 2010) (quoting Duffy v. Freed, No. 09-2978 (JBS/JS), 2010 WL 3740659 (D.N.J. Sept. 17, 2010)) ("`The failure of a Title II public entity to adequately implement or abide by internal complaint procedures does not itself state an ADA claim, because the statute does not require these procedures.'"); see also Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 278 (D.Conn. 2007) (regulation implementing section 504 of the Rehabilitation Act, which required establishment of grievance procedures, was not privately enforceable); Abrahams v. MTA Long Island Bus, 644 F.3d 110, 119-20 (2d Cir.2011) (regulation requiring creation of mechanism for ongoing public participation in development and assessment of services for disabled individuals not privately enforceable).
144. Attempting to sidestep the issue of whether there is a private right of action to enforce 28 C.F.R. § 35.107(b), Kirola argues that she does "not challenge the City's grievance procedure standing on its own" but rather "challenge[s] the sufficiency of the grievance procedure as a means of providing program access." Dkt. 618, 12:2-3; see also Dkt. 672, 24:28-25:1 (arguing that the City's "access upon request" policy of addressing access barriers is not a lawful method for providing program access). The evidence does not support Kirola's position. While the record establishes that the grievance procedure is an important aspect of the City's efforts to ensure accessibility for disabled persons, it also firmly establishes that the grievance procedure merely supplements the City's proactive efforts to provide accessibility. See, e.g., RT 64:1-17, 1617:2-1618:3, 2863:14-2867:25. In other words, the City endeavors to provide program access through both proactive and reactive measures — i.e., undertaking significant accessibility planning across numerous City departments and proactively seeking input from the disabled community in the course of such planning, while also responding to requests and complaints from the public. The City's efforts therefore do not constitute an "access upon request" approach to accessibility. C.f. Putnam v. Oakland Unified Sch. Dist., 1995 WL 873734, *10 (N.D.Cal.1995) ("The approach of taking no action to render programs accessible until a student or parent identifies an accessibility problem does not make a program `readily' accessible."); Huezo, 672 F.Supp.2d at 1063 ("The District concedes that to receive an accommodation of any kind — including basic services such as accessible furniture and transportation to otherwise inaccessible parts of campus —
145. Even if the Court were to find a private right of action exists to challenge the City's grievance procedure's compliance with 28 C.F.R. § 35.107(b), the evidence does not support the conclusion that any violation of this regulation has transpired.
146. MOD oversees the City's grievance procedure for handling public complaints regarding disabled access to its facilities, programs and services. A complaint form is posted on MOD's website. RT 1579:23-1580:12-1581:22; DTX A35 [000105-109]. Upon receipt of a complaint, MOD sends the complaint to the ADA Coordinator for the appropriate department, which, in turn, investigates the matter. Upon review and approval by MOD, the ADA Coordinator and department head respond to the complaint within thirty days. DTX A35 [000105]; RT 1866:19-25. Because each complaint is unique, resolution of the grievance may, in some instances, require more than thirty days to finally resolve. RT 2001:2-7; 2385:14-2386:22; DTX A15.
147. Fraguli is in charge of the grievance procedure. Only 20 percent of the grievances she received related to physical access — the majority of which were curb ramp requests. RT 1868:9-1869:5. Fraguli has never received a complaint from Kirola, O'Neil, Kimbrough, Grant, DeChadenedes or Monasterio. RT 1870:14-1871:9. Nevertheless, the City learned, through other channels, that Kirola submitted a single curb ramp request, and that Monasterio and O'Neil submitted multiple requests. RT 1383:21-1392:16, 568:6583:22, 1226:23-24, 1128:23-1230:6, 1246:2-1249:16. The trial record shows that upon becoming aware of these requests, the City installed almost all of the requested ramps within one to two years, while the remaining curb ramps were slated for installation within a year of trial. RT 1228:18-1229:6, 1384:6-10, 1391:18-1392:16, 2001:8-2002:5, 2419:132420:4, 2422:22-2424:5. Moreover, upon reviewing the evidence presented and relevant legal authorities, the Court concurs with Hecker's opinion that the City's grievance procedure is consistent with the requirements and provisions of the ADA regulations. RT 2727:5-19
148. For the reasons stated above, the Court finds that Kirola's challenge to the City's grievance procedure is legally without merit.
149. Kirola alleges that the City's policies and practices for the maintenance of accessible features are inadequate because they "do not set specific and prompt deadlines for the identification and repair of items that are broken, non-operational, or in need of repair." Dkt. 662, 14:9-11. A public entity's maintenance obligation is set forth in 28 C.F.R. § 35.133, which provides that public entities "shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities[.]" 28 C.F.R. § 35.133(a).
150. Under Title II, a public entity's maintenance obligation applies only "to the maximum extent feasible," and service interruptions are inappropriate only if they "persist beyond a reasonable period of time." 28 C.F.R. Part 35 App. A; e.g., Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078, 1083-84 (N.D.Cal.1997) (finding that a plaintiff can succeed on a challenge regarding a public entity's maintenance obligations only if she establishes that the maintenance issues are "recurrent" and constitute a "pattern," as opposed to being "isolated or temporary"); Cherry, 2006 WL 6602454, *7, *10 (noting
151. Both libraries and RecPark facilities are subject to rigorous inspection and maintenance policies. At the City's libraries, staff utilize a Daily Facility checklist in connection with their facilities inspections each morning. To ensure access, staff move furniture or other objects that may impede the path of travel, and report any access problems that cannot be safely or readily corrected. RT 2235:22-2237:13, 2252:102253:21; DTX A45. Kirola does not challenge the efficacy of the checklist per se, but complains that other patrons occasionally leave a step stool in the aisles of the library, obstructing her path. RT 1385:22-1386:11. She contends that the current Library policy, which requires staff to conduct a single daily inspection of library facilities, should be replaced by one requiring full inspections throughout the day. Dkt. 672, 24:20-23. But even multiple daily inspections would not guarantee that a mobility-impaired library patron would never encounter misplaced step stools left by other library patrons. Ultimately, however, Kirola has not persuasively demonstrated that misplaced step stools are architectural barriers or that they denied her program access to the City's library program in its entirety.
152. Kirola has likewise failed to show that RecPark's maintenance policies are inadequate under the ADA. RecPark has implemented written policies that prioritize maintenance requests relating to disabled access to parks and facilities, and strives to resolve these requests within forty-eight hours whenever possible. RT 2306:3-2309:14; DTX A10. RecPark also uses an Employee Daily Facility Preparation Quick-Sheet that requires daily inspections of its buildings and facilities for safety hazards or other issues that might impact disabled access before they are opened to the public, RT 2315:152317:18; DTX Z60, and a Semi-Annual Facility Accessibility Survey, which includes a detailed inspection checklist and correction of items that may affect physical access to the facility, RT 2318:2-2319:18; DTX Z61. Further, RecPark staff conduct regular inspections of outdoor facilities which focus on the path of travel, including pathways' surface quality, gates and latches, and barriers such as low hanging tree limbs. RT 2320:2-2321:6.
153. Lastly, the Court rejects Kirola's claim that the City's policies governing sidewalk repair are not in compliance with the ADA. As discussed more extensively above, the City's sidewalk maintenance policies, which are embodied in the SIRP and ASAP, adequately address sidewalk access issues. See Findings of Fact ¶¶ 62-65. Similarly, for reasons already discussed, the Court discounts the opinions from Kirola's experts regarding sidewalk maintenance issues. See id.
154. In sum, the Court finds that Kirola has failed to demonstrate that the City has violated its maintenance obligations, as set forth in 28 C.F.R. § 35.133(a).
155. Kirola alleges that the City is in violation of the ADA due to the lack of a general policy for addressing safety hazards. She alleges that "it is well-settled that public entities have a duty to remove disability access barriers that constitute safety hazards to persons with mobility disabilities" and that "the City has no written policies or practices in place to either identify safety hazards, or ensure their prompt removal from the City's pedestrian right of way and the other facilities at issue herein." Dkt. 604; 20:19-21:7. There is no authority holding that a public entity must adopt a written policy or procedure relating specifically to safety hazards. But even if there were, Kirola has failed to present any evidence establishing that the lack of such a policy resulted in the denial of program access to any particular program, service or activity.
156. Kirola argues that if the City had adopted and implemented "effective policies for the identification and prompt removal of safety hazards, it is likely that [she] would not have encountered steep paths of travel and entrances, sidewalks with excessive cross slopes and broken pavement, and uncovered tree wells[.]" Dkt. 673, 17:1-4. This contention is entirely speculative and unsupported by the record established at trial. Further, irrespective of whether the City has a written policy specific to the removal of safety hazards, the trial record shows that the City's existing policies and procedures adequately address these types of concerns. Both the library and RecPark programs use daily inspection protocols that address issues deemed to constitute safety hazards, such as wet spots or broken equipment. DTX A45; DTX Z60; DTX Z61. RecPark further prioritizes the resolution of potential safety hazards by categorizing each complaint received into one of three categories: emergencies (which are to be addressed immediately); health, safety, and accessibility issues (which are to be addressed within 48 hours); and routine issues. RT 2306:3-2308:21.
157. The trial record also establishes that DPW prioritizes resolution of potential safety hazards in the City's public right-of-way via its curb ramp grading system, which grades curb ramps with excessive running slopes — along with curb ramps with both excessive running slopes and excessive gutter slopes — lower than other curb ramps, thereby prioritizing them for replacement. RT 2453:18-2454:12. The City worked with members of the City's disabled community in creating the curb ramp grading system, ensuring that the system assigned the lowest scores to curb ramp conditions which the disabled community felt to be the most problematic or dangerous. RT 1607:17-22.
158. In sum, the Court finds that Kirola has failed to demonstrate that the City's lack of a specific policy for hazard removal violates Title II of the ADA.
159. Kirola complains that the RecPark website improperly defines an "accessible park" as one that has an "accessible entrance" and "at least one recreational opportunity." Dkt. 662, 13:4-27. As explained above, the City does not rely on this statement as its standard for establishing program access to it programs, services and activities. The information on the website is intended simply to inform the public about sites they may wish to visit, and visitors are expressly invited to inquire further for more detailed information. RT 1502:13-16; PTX 3875 [075767]. There is no evidence that the City's definition of "accessible" for the purpose of its RecPark website is in any way connected to City policy regarding its program access obligations.
161. Kirola alleges that the City has failed to formulate and implement "an adequate self-evaluation plan" or transition plan, and seeks to compel the City to do so under the ADA, California Government Code section 11135, and their respective regulations. Dkt. 294, 14:6-7, 19:21-24.
162. ADA regulations direct public entities to adopt transition and self-evaluation plans. See 28 C.F.R. § 35.150(d)(1) ("a public entity ... shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete [structural changes to facilities to achieve program access]"); 35.105(a) ("A public entity shall ... evaluate its current services, policies, and practices, and the effects thereof"). Neither regulation expressly creates a private right of action to enforce its provisions.
163. "In determining whether a particular regulation is enforceable through a statute's private right of action, [courts] must look to the statute itself and determine whether it displays Congress's intent to create the private right purportedly contained in the regulation." Lonberg, 571 F.3d at 850. "Only those regulations effectuating the statute's clear prohibitions or requirements are enforceable through the statute's private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable." Id. at 851.
164. Section 202 of the ADA, 42 U.S.C. § 12132, prohibits public entities from denying qualified disabled individuals from "meaningful access" to their services and programs. Lonberg, 571 F.3d at 851. In view of this prohibition, the Ninth Circuit held in Lonberg that the failure to prepare a transition plan is not subject to private enforcement. Id. The court explained that the statute "says nothing about a public entity's obligation to draft a detailed plan and schedule for achieving such meaningful access." Id. More fundamentally, "[t]he existence or non-existence of a transition plan does not, by itself, deny a disabled person access to a public entity's services, nor does it remedy the denial of access." Id. Citing Lonberg, this Court has likewise ruled that there is no private of action to enforce ADA regulations requiring the creation and implementation of a self-evaluation plan. Skaff v. City of Corte Madera, No. C 08-5407 SBA, 2009 WL 2058242, *3 (N.D.Cal. Jul. 13, 2009). Given these authorities, the Court finds that Kirola cannot seek to compel the City to prepare and implement a transition or self-evaluation plan under ADA regulations.
165. For much the same reasons, the Court rejects Kirola's companion claim predicated upon California Government Code section 11135 and two of its implementing
166. The Court is aware that it previously intimated that Kirola could pursue claims predicated on California's self-evaluation and transition plan regulations. See Kirola v. City and Cnty. of San Francisco, No. C 07-3685 SBA, 2010 WL 1459725, *1 (N.D.Cal. Apr. 12, 2010). In opposing Plaintiff's motion for leave to file an amended complaint, the City argued, inter alia, that permitting the proposed amendment was futile because the regulations did not impose any mandatory duty to develop or implement either a transition or self-evaluation plan. Dkt. 205, 12:21-15:2. The Court rejected the City's argument, concluding that it could not be logically reconciled with California Government Code § 11139, which expressly provides a private right of action to enforce rights conferred under Section 11135 and its implementing regulations. Kirola, 2010 WL 1459725, *1. After further consideration of this matter, however, the Court reconsiders that conclusion. See United States v. Smith, 389 F.3d 944, 949 (9th Cir.2004) (holding that a district court may sua sponte reconsider a prior, interlocutory ruling over which it has continuing jurisdiction).
167. When Section 11135 was originally enacted in 1977, it did not include an express private right of action. Donovan v. Poway Unified Sch. Dist., 167 Cal.App.4th 567, 594, 84 Cal.Rptr.3d 285 (2008). In Arriaga v. Loma Linda University, 10 Cal.App.4th 1556, 13 Cal.Rptr.2d 619 (1992), the California Court of Appeal subsequently declined to find an implied right of action. "In response to Arriaga, the Legislature, in Assembly Bill No. 1670 amended Government Code section 11139 to expressly provide for a private right of action, but expressly limited enforcement to a `civil action for equitable relief.'" Donavan, 167 Cal.App.4th at 594, 84 Cal.Rptr.3d 285. Section 11139 provides, in relevant part, as follows: "This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies." Cal. Gov. Code § 11139.
168. Although Section 11139 created a private right of action to enforce rights conferred under Section 11135 and its regulations, it does not automatically follow that all regulations promulgated under Section 11135 necessarily create a mandatory duty, and hence, a private right of action based on the failure to prepare and implement either a transition plan or self-evaluation plan. Section 11135 is a general anti-discrimination statute, pursuant to which a broad range of regulations have been adopted to implement its provisions. Cal. Code Regs. tit. 22, §§ 98000-98413.
169. The regulations implementing Section 11135 expressly differentiate between those regulations that are mandatory and those that are advisory. Cal. Code Regs. tit. 22, § 98010. Specifically, the regulations provide that: "`Should' means
170. Even if the regulations at issue imposed a mandatory duty, Kirola has failed to show that Section 11135 is applicable here. Section 11135 applies only to a program or activity operated by the state or "[is] funded directly by the state, or receives any financial assistance from the state." Cal. Gov. Code § 11135(a). No such showing has been made. That notwithstanding, any obligation created by the state's transition and self-evaluation plan regulations runs to the applicable state agency, as opposed to the City. Both of the applicable regulations include the language "should be required
171. For the reasons discussed above, the Court finds that Kirola's claim based on the City's alleged failure to develop, adopt and implement a transition plan or self-evaluation plan fails both procedurally and substantively.
The Court is sensitive to the plight of mobility-impaired and other disabled individuals. The testimony of Kirola, class members, and mothers of class members effectively established the daily challenges confronting disabled individuals. Both federal and state law afford disabled individuals,
IT IS HEREBY ORDERED THAT in accordance with this Order, final judgment shall be entered in favor of the City. The Clerk shall close the file and terminate any pending matters.
IT IS SO ORDERED.
