KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

1. Claims

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 grounds by Johnson v. Cal., 543 U.S. 499, 504-505 (2005).

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 (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 (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").