KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

2. Neighborhood Access

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 enjoyment of the facility due to his particular disability," he has standing to sue for injunctive relief, "either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility." Chapman I, 631 F.3d at 944. Additionally, the court held that "an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability." Id.

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 more stringent requirements aimed at ensuring that every facility is equally accessible to disabled persons." Cohen, 754 F.3d at 695 n.4 (citing Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004)) (emphasis added); see also Cary LaCheen, Using Title II of the Americans with Disability Act on Behalf of Clients in TANF Programs, 8 GEO.J. ON POVERTY L. & POL'Y 1, 119-20 (2001) ("Given . . . the fact that the unit of analysis for determining accessibility is different under Title II and Title III, Title III will often be a more stringent access standard for a particular program site than Title II.").¹³ 

25. Because the proper unit of analysis under Title II of the ADA is programs and services —not the individual sites at which they are offered—it is possible for a program, when viewed in its entirety, to be in compliance with the ADA, even if some aspects of facilities where the programs are offered are inaccessible. E.g., Daubert, 760 F.3d at 987-988 (holding that the mere fact that some of the bleachers in the football stadium were not accessible did not result in the denial of program access to the school district's football program); Bird v. Lewis & Clark College, 303 F.3d 1015, 1022 (9th Cir. 2002) ("Accessibility is not location-dependent; rather, as we have explained, the essential inquiry is whether the program overall is accessible"). Accordingly, a Title II plaintiff cannot establish standing by merely pointing to a few isolated access barriers in her neighborhood. Rather, to establish standing, a Title II plaintiff must show that the barriers she encountered amounted to a wholesale denial of "meaningful access" to the challenged program, service, or activity, when viewed in its entirety. See Armstrong, 275 F.3d at 861 (citing Alexander v. Choate, 469 U.S. 287, 295 (1985)).

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.¹⁴

^13. In addition, unlike Title III, ADA Title II regulations also allow public entities to utilize a variety of methods to render existing facilities "readily accessible," including the "reassignment of services to accessible buildings" and the "delivery of services at alternate accessible sites," among others. 28 C.F.R. § 35.150(b); see also Tenn. v. Lane, 541 U.S. 509, 511 (2004) ("Title II does not require States to employ any and all means to make . . . services accessible or to compromise essential eligibility criteria for public programs. It requires only 'reasonable modifications' that would not fundamentally alter the nature of the service provided, and only when the individual seeking modifications is otherwise eligible for the service.").

^14. Furthermore, as set forth above, the Court finds that the testimony proffered by Kirola's experts in support of Kirola's neighborhood theory lacks credibility. Not only do such experts' conclusions conflict with the law, they are unsupported by any discussion of professional or industry understandings of Title II's program access requirements.