KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

a) ADA

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.