WILLITS, et al v. CITY OF LOS ANGELES - Order Granting Plaintiff's Motion for Partial Summary Judgment

C. Whether the City Can Assert an Undue Burden Defense With Respect to Existing Facilities Covered by Section 504 of the Rehabilitation Act

The parties disagree as to whether there is an undue burden defense under the Rehabilitation Act for existing facilities (as opposed to newly constructed or altered facilities). Unlike the ADA regulations for existing facilities, see 28 C.F.R. 35.150, the Section 504 regulations do not contain an explicit undue burden defense for existing facilities.

This specific issue has rarely been decided by courts. The Northern District of California held that a school district could not make an undue financial burden defense as to facilities constructed prior to 1977. Putnam v. Oakland Unified Sch. Dist., No. C–93–3772 CW, 1995 WL 873734, at *13 (N.D.Cal. June 9, 1995). The Putnam court noted that other Section 504 regulations do contain express undue burden defenses, thus giving more intent to the lack of such a defense in the context of existing facilities. See id.

Moreover, when Congress enacted the ADA (which came after the Rehabilitation Act), it dictated that Title II regulations be consistent with Rehabilitation Act regulations with the exception of program accessibility, existing facilities, and communications regulations. As to existing facilities, the ADA Title II regulations contained an undue burden defense. Congress therefore recognized that no undue burden defense exists under the Rehabilitation Act regulations. Congress has never amended the Rehabilitation Act to include an undue burden defense for existing facilities.

The Court is not persuaded by the City's cases, as those relate to Section 504 as a whole, rather than specifically to facilities constructed prior to 1977.

The Court therefore finds that no undue burden defense exists as to pedestrian rights of way, sidewalks, and curb ramps that were constructed prior to and that have not been altered since June 3, 1977, and therefore constitute existing facilities under Section 504 of the Rehabilitation Act. The City may not assert its Seventh and Fifty–Fourth Affirmative Defenses related to undue financial burden as to those facilities.