1. Program Access
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 (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:
A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.
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.
a) Public Right-of-Way
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 crosswalks. 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 identified alleged access issues at other locations, the Court finds their opinions unpersuasive for the reasons set forth above. See Findings of Fact ¶¶ 180-196. The above notwithstanding, the fact that Kirola and some class members may have experienced difficulty accessing the City's public-right-of-way, while understandably frustrating, does not prove that the City has failed provide program access as required by the ADA.
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; 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 2785:17-2787:13, 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 other intersections in accordance with ADA priorities," it is in compliance with its Title II obligations).24
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 demonstrating that the City failed to provide program access to its public right-of-way.
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 argument is that it impermissibly attempts to shift the burden to the City, when the burden rests with Kirola. See Pierce, 526 F.3d at 1217; see also McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (noting the elements necessary to state a claim of disability discrimination under Title II).
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.
24. As indicated above, the City installed curb ramps at all the locations identified in the pleadings, RT 1392:3-16, effectively rendering Plaintiff's complaints regarding the curb ramps moot. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011) ("a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim.").
b) Library Program
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.
c) Aquatic 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 2767:8-2769:17. 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 every pool accessible. Rather, the City ensures program access to it aquatics program through its other pools. Notably, Kirola acknowledged that she regularly uses Hamilton and MLK Pools—the latter of which is her "favorite"—without difficulty. RT 1392:17-1393:23.
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 swim lessons. RT 848:18-24, 838:12-839:19. Although Coffman Pool is only one mile further away and fully accessible, Kimbrough stated that she does not want to take her family 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.
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.25 That Kimbrough may personally dislike Coffman Pool, without more, has no bearing on whether the City is in compliance with its obligation to render its aquatic program accessible to mobility-impaired persons on a program access basis. See Daubert, 760 F.3d at 988.
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.").26
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.
25. Plaintiff's expert Steinfeld opined that Coffman Pool and Martin Luther King Jr. Pool (two accessible pools) are too far from Balboa Pool to be considered meaningful alternatives. RT 673:4-23. Kimbrough, however, testified that Coffman Pool is only two miles from her home. RT 852:18-853:2, 848:18-24.
26. As an ancillary matter, Kirola complains that, in violation to 35 C.F.R. § 35.163(b) the City fails to provide signage at parks and swimming pools directing disabled persons to other accessible areas of a park or other accessible pools. Dkt. 604, 18, 21. Section 35.163(b), provides, in pertinent part, that "[a] public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities." There is no mention of providing signage regarding other accessible facilities.
d) RecPark Program
124. Kirola's evidence regarding the City's RecPark program similarly fails to show a denial of program access. Of the City's 220 parks, Kirola only complained about the steep entrance and paths at Alamo Square Park, which she acknowledged is located on a steep hill. RT 1385:3-16, 1394:2-4. Although Kirola testified that she could not access the playground there, she did not claim that the park was otherwise inaccessible to her. RT 717:10-21. Nor did she offer any testimony regarding any inability to access the multitude of other parks operated by the City.
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, and serves organized community clubs that operate each community garden. RT 2281:10-2283:15. Only group members are eligible to participate in the "program" offered at the community garden sites. Id. RecPark makes access improvements each time it performs construction work at a community garden. Id. In addition, it accommodates each individual access request it receives from club members who actually use the garden. Id. Neither Kirola, nor any class member who testified at trial, belongs to any community club that operates a community garden, nor has Kirola ever attempted to visit a community garden as a member of the public. Kirola's claims based on the community gardens fail for lack of standing, and for lack of proof.
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 2278:3-2279:12. 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.
133. Next, Kirola argues that all elements of the "blue dot" facilities are not entirely compliant with facility access regulations. As discussed earlier, MOD uses color-coded spreadsheets and maps to track the status of each of the approximately 700 facilities surveyed by Hopper and illustrate the distribution of accessible facilities across the City. Blue dots are placed on those maps to indicate where a capital improvement project has taken place since 2000. See Findings of Fact ¶ 77.
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.
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