On June 29, 2015, the Supreme Court denied the City of Lomita’s petition for certiorari in the Potter Handy, LLP case, City of Lomita, California v. Robin Fortyune, No. 14-920, leaving undisturbed the 9th Circuit’s September 5, 2014 decision holding that Title II of the Americans with Disabilities Act (“ADA”) requires local governments to provide accessible on-street parking in the absence of regulatory design specifications for on-street parking facilities.
As earlier reported by Potter Handy, the 9th Circuit panel stated that the text of the ADA, the relevant implementing regulations, and the Department of Justice’s interpretation of its own regulations all led it to conclude that public entities must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the DOJ has adopted technical specifications for the particular types of facilities involved.
As background, Robin Fortyune, now deceased, represented by Potter Handy, LLP, filed a state court complaint against the City of Lomita nearly four years ago, on July 1, 2011, alleging that the City has no accessible diagonal stall parking on its streets. The City removed the case to the Federal Court for the Central District of California on August 12, 2011, and promptly filed a motion to dismiss Mr. Fortyune’s complaint, arguing that the absence of regulatory design specification for on street parking facilities precluded liability. In an order dated October 28, 2011, U.S. District Judge Dean D. Pregerson denied the City’s motion, holding that “all public services must be readily accessible” to individuals with disabilities, “whether or not a federal agency has created specific guidelines for a particular service.” Judge Pregerson went on to say that although “detailed regulations can help public entities and courts determine compliance, … where none are on point, we fall back to the [ADA’s] general statutory requirement” making it unlawful to deny a public service to individuals with disabilities. (Citing 42 U.S.C. § 12132.) The City filed an interlocutory appeal to the Ninth Circuit.
On September 5, 2014, the Ninth Circuit (panel of Paez, Nguyen, and Motz with Paez writing the opinion), upheld Judge Pregerson’s decision, holding that the absence of architectural guidelines does not obviate the City from making its on street parking facilities accessible to people with disabilities. The Panel observed, among other things, that:
- The ADA is a broad remedial statute, enacted to remedy widespread discrimination against persons with disabilities by providing a comprehensive broad mandate to eliminate discrimination against persons with disabilities through addressing both outright intentional exclusion as well as the failure to make modifications to existing facilities and practices. Citing 42 U.S.C. § 12101(b)(1).
- The ADA has been interpreted to “bring within its scope anything a public entity does.” Citing Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002).
- On-street parking is a “program, service or activity” for purposes of Title II. The Ninth Circuit has previously recognized sidewalks to be a program, service or activity that public entities have to ensure the accessibility of, even though the Title II regulations do not specifically address sidewalks. Barden, 292 F.3d 1073. The obligation to provide on street parking is analogous.
- The lack of a specific regulation cannot eliminate a statutory obligation; nothing in relevant case law, the Department of Justice regulations or technical assistance materials suggest otherwise.
As a practical matter, denial of the City of Lomita’s petition for certiorari of the above-described Ninth Circuit’s decision means that cities must now re-evaluate and address the accessibility of their on-street parking, as well as their other programs, services and activities, to ensure compliance with long-standing statutory obligations to avoid discrimination against individuals with disabilities, regardless of whether detailed regulations or specific guidelines addressing those programs, services and activities exist.
If you are a person with a disability and encounter barriers to access, whether policy based or architectural in nature, please do not hesitate to consider your role as an advocate. Your decision to challenge unfair and discriminatory practices benefits numerous people that you will never meet. You have an effective and willing partner in this endeavor. The Center for Disability Access has been litigating these cases for two full decades. Whether it be consultation or representation, we represent our clients for free. Please don’t hesitate to call the Center to explore or discuss any issues that you have encountered.