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Kirola v. City and County of San Francisco

United States Court of Appeals, Ninth Circuit

June 22, 2017

Ivana Kirola, On Behalf of Herself and The Certified Class of Similarly Situated Persons, Plaintiff-Appellant,
City and County of San Francisco; Gavin Newsom, in his official capacity as Mayor; Aaron Peskin, in his official capacity as President of the Board of Supervisors; Jake McGoldrick; Michela Alioto-Pier; Ed Jew; Chris Daly; Sean Elsbernd; Bevan Duffy; Tom Ammiano; Sophie Maxwell; Ross Mirkarimi; Gerardo Sandoval, in their official capacities as members of the Board of Supervisors, Defendants-Appellees.

          Argued and Submitted December 14, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California, D.C. No. 4:07-cv-03685-SBA Saundra B. Armstrong, District Judge, Presiding

          Guy B. Wallace (argued), Jennifer A. Uhrowczik, Sarah Colby, and Mark T. Johnson, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, California; Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, San Francisco, California; James C. Sturdevant, The Sturdevant Law Firm, San Francisco, California; Ray A. Wendell, Linda M. Dardarian, and Barry Goldstein, Goldstein Borgen Dardarian & Ho, Oakland, California; José R. Allen, Palo Alto, California; for Plaintiff-Appellant.

          James M. Emery (argued) and Elaine M. O'Neil, Deputy City Attorneys; Ronald P. Flynn, Chief Deputy City Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellees.

          Jinny Kim and Alexis Alvarez, The Legal Aid Society - Employment Law Center, San Francisco, California, for Amici Curiae The Legal Aid Society - Employment Law Center, AIDS Legal Referral Panel, American Association of People with Disabilities, API Legal Outreach, California Foundation for Independent Living Centers, Civil Rights Education and Enforcement Center, Disability Rights Advocates, Disability Rights California, Disability Rights Education and Defense Fund, Disability Rights Legal Center, The Impact Fund, Independent Living Resource Center San Francisco, National Disability Rights Network, San Francisco Senior and Disability Action, and Swords to Plowshares.

          Marc J. Poster and Timothy T. Coates, Greines Martin Stein & Richland LLP, Los Angeles, California, for Amici Curiae League of California Cities, International Municipal Lawyers Association, and California State Association of Counties.

          Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Milan D. Smith, Jr., Circuit Judges.


         Americans with Disabilities Act

         The panel affirmed in part and reversed in part the district court's judgment, after a bench trial, in favor of the City and County of San Francisco in a class action brought under Title II of the Americans with Disabilities Act, alleging that San Francisco's public right-of-way, pools, libraries, parks, and recreation facilities were not readily accessible to and usable by mobility-impaired individuals.

         Reversing in part, the panel held that the plaintiff established Article III standing to pursue injunctive relief by showing that she suffered in injury in fact through evidence that she encountered an access barrier and either intended to return or was deterred from returning to the facility in question. The panel held that to establish standing, the plaintiff did not need to show that she was deprived of meaningful access to a challenged service, program, or activity in its entirety; rather, this was the standard for relief on the merits. The panel held that the plaintiff also established causation and redressability, and therefore established standing to challenge barriers at the facilities that she visited. The panel held that, in addition, the certified class had standing to challenge the facilities that the plaintiff did not personally visit.

         On the merits of claims related to newly constructed or altered facilities, the panel explained that the Architectural and Transportation Barriers Compliance Board ("Access Board") produces the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"), which set a baseline of nonbinding requirements. The Department of Justice ("DOJ") then adopts binding regulations that are consistent with the minimum standards put out by the Access Board. DOJ's 2010 standards set a timetable allowing public entities to choose to comply either with the original 1991 ADAAG standards or with other federal standards, and San Francisco chose to comply with the 1991 ADAAG standards. These standards include detailed design guidelines for particular features of facilities, as well as facility-specific requirements.

         The district court found that the plaintiff had proven that the City's new or altered facilities departed from ADAAG in only a few isolated instances. The panel held that, in making this finding, the district court erred by concluding that none of the plaintiff's experts was reliable and then concluding that all of the City's experts were reliable. The district court's analysis relied on several regulatory misinterpretations, including its conclusion that ADAAG did not apply to San Francisco's public right-of-way, parks, and playground facilities. The panel held that, even though ADAAG did not include facility-specific guidelines particular to those types of facilities, ADAAG's feature-specific requirements applied. Because the district court's approach to the plaintiff's experts' credibility was based on legal errors, the panel remanded for reevaluation of the extent of ADAAG noncompliance.

         On the merits of claims related to existing facilities, the panel affirmed the district court's finding that the City's public right-of-way and "RecPark" programs were accessible when viewed in their entirety.

         The panel affirmed in part, reversed in part, and remanded with instructions for the district court to apply ADAAG as the panel had interpreted it, reevaluate the extent of ADAAG noncompliance, and then revisit the question of whether injunctive relief should be granted.


          GOULD, Circuit Judge:

         Title II of the Americans with Disabilities Act provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. We address whether the City and County of San Francisco have complied with their obligations under this law. In particular, we are concerned with whether San Francisco's public right-of-way, pools, libraries, parks, and recreation facilities are readily accessible to and usable by mobility-impaired individuals.


         Plaintiff-Appellant Ivana Kirola suffers from cerebral palsy and moves within the city in a wheelchair. A resident of San Francisco, her ability to move about the city and benefit from its public services depends in part on the City and County's compliance with disability access laws.

         On July 17, 2007, Kirola filed a putative class action alleging that the City and County of San Francisco, the Mayor of San Francisco, and members of the San Francisco Board of Supervisors (collectively, "the City") had systematically failed to comply with federal and state disability access laws, seeking declarative and injunctive relief. Relevant here, Kirola alleged that the City's public libraries, pools, Recreation and Parks Department ("RecPark") facilities, [1] and pedestrian right-of-way did not comply with Title II of the Americans with Disabilities Act ("ADA") and related regulations.

         On June 7, 2010, the district court certified a class consisting of:

All persons with mobility disabilities who are allegedly being denied access under Title II . . . due to disability access barriers to the following programs, services, activities and facilities owned, operated and/or maintained by the City and County of San Francisco: parks, libraries, swimming pools, and curb ramps, sidewalks, crosswalks, and any other outdoor designated pedestrian walkways in the City and County of San Francisco.

         The district court estimated that about 21, 000 persons with mobility disabilities live in San Francisco. In this lawsuit, Kirola seeks to advance their important rights.

         In April and May of 2011, the district court held a five-week bench trial featuring testimony by 36 different witnesses. Kirola v. City & Cty. of San Francisco, 74 F.Supp.3d 1187, 1200 (N.D. Cal. 2014). The district court made the following findings of fact:

         Class Members. Seven class members or mothers of class members testified, including Kirola. Id. at 1217. Each class member suffered from a disability and was mobility-impaired. Id.

         Kirola testified that as a resident of San Francisco, she had encountered the following access barriers related to the City's public services:

(1) three stretches of sidewalk containing "bumps, " (2) a sidewalk where her wheelchair became stuck in a tree well; (3) one street corner that lacked curb ramps, (4) one street corner that provided only a single curb ramp, (5) errant step stools at three of the City's libraries, (6) three inaccessible pools, and (7) steep paths at one park.

Id. at 1240. The other testifying class members or their mothers described various other access barriers that they had encountered while enjoying San Francisco's public services. Id. at 1217-21.

         Accessibility Infrastructure. San Francisco handles disability access concerns through a collection of institutional mechanisms. At the top is the Mayor's Office on Disability ("MOD"), an eight-person office that oversees the "various departments, positions, policies, and programs" dedicated to disability issues. Id. at 1202. The staff of MOD "regularly work with and receive input from a variety of organizations devoted to disabled access, " as well as maintain a public website with extensive information on disability access resources. Id. at 1202-03.

         Next is the Mayor's Disability Council, an advisory body of members of the disabled community that "provide[s] a public forum to discuss disability issues." Id. at 1203. The Mayor's Disability Council acts as the primary liaison to San Francisco's disabled community. Id.

         Third are ADA coordinators located in each City department that has more than fifty employees. Id. The ADA coordinators investigate disability access complaints and serve as resources for their respective departments on disability access issues. Id.

         Last is a citywide grievance procedure overseen by MOD. Id. Upon receipt of an access complaint, MOD sends a copy to the ADA coordinator at the relevant department, who in turn conducts an investigation. Id. at 1204. There is a separate procedure for complaints related to curb ramps. Id. at 1204-05.

         Funding for disability access improvements is governed by the City's Capital Plan. Id. at 1205. The City estimates that it will spend $670 million on ADA compliance between 2012 and 2021.[2] Id.

         Public Right-of-Way. San Francisco operates a network of "approximately 2, 000 miles of sidewalks, 27, 585 street corners, and roughly 7, 200 intersections, " all overseen by the Department of Public Works. Id. at 1205.

         Scott Mastin, one of Kirola's experts, testified that he inspected 1, 432 curb ramps throughout the pedestrian right-of-way and identified 1, 358 as inaccessible or noncompliant with ADA standards. Id. at 1222. Another expert, Dr. Edward Steinfeld, conducted fourteen site inspections involving the public right-of-way and at thirteen of them found curb ramp access barriers. Id. Expert Peter Margen inspected ten intersections or street segments and found "major barriers to accessibility" that rendered "the system as a whole not accessible." Id. Finally, expert David Seaman analyzed curb ramp data held in a government database, and prepared maps depicting which corners lacked curb ramps or had ramps in low condition. Id. at 1224.

         The City presented experts that disagreed with these conclusions and criticized the methods employed by Kirola's experts. Defense expert Larry Wood testified that among Kirola's experts, "there was no common way of measuring anything, such as slopes, sidewalks, [and] curb ramps." Id. at 1222 (alteration in original). Rather, "they all seemed to have a different approach that was somewhat haphazard." Id. Wood criticized Mastin in particular for not considering dimensional tolerance in his measurements. Id. at 1222-23. According to Wood, dimensional tolerances are industry-accepted deviations from applicable design requirements, such as those required by the ADA and its regulations. Id. Wood also faulted Mastin for using an incorrect benchmark when determining whether the slopes of curb ramps were ADA compliant. Id. at 1223. And Woods complained that Kirola's experts cited potholes or utility grates as access barriers, even when there was a wide path around the pothole or grate. Id.

         The district court took issue with Kirola's experts' methods as well. The court noted that her experts did not "consider the height of the curbs or widths of the sidewalks they examined, " even though those are "critical measurements that may impact the design, construction, and accessibility conclusions of the curb ramps at issue." Id. at 1222. Agreeing with Wood, the district court explained that Kirola's experts used inconsistent methods to measure slopes, sidewalks, and curb ramps. Id. The district court also criticized Kirola's experts for recording curb-ramp slope by measuring the "maximum localized variation, " which is the steepest individual point along the slope of a ramp. Id. at 1223. In the district court's view, Kirola's experts should have considered the overall "rise in run, " which is the average slope of the ramp. Id.

         In evaluating the pedestrian right-of-way, Kirola's experts applied the standards found in the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG"). Id. at 1222. The district court faulted Kirola's experts for this as well, stating that ADAAG was inapplicable to public rights-of-way. Id. 1222-23. The district court also stated that even if ADAAG did apply to the public right-of-way, it only applied to parts of the right-of-way that had been constructed or altered after January 26, 1992. Id. at 1223. The district court found that Kirola's experts had applied ADAAG to all curb ramps, without first determining the date on which each ramp had previously been constructed or altered. Id.

         Furthermore, the district court found that Seamon's analysis of government curb ramp data did not include analysis of accessible curb ramps, even when those accessible ramps provided an alternative means of using a sidewalk. Id. at 1224. The district court also found that the information that Seamon relied on was not up to date or comprehensive. Id.

         Finally, the district court expressed concern about the qualifications of the individuals who conducted Kirola's inspections. Id. at 1222. The court noted that Steinfeld used mostly student interns for his inspections, and that Margen was not an architect. Id. Nevertheless, the district court qualified Mastin, Steinfeld, Margen, Seamon, and another witness named Gary Waters, all as experts. Id. at 1221.

         Library Program. San Francisco's library program consists of a main library and twenty-seven branch libraries located throughout the City. Id. at 1210. Kirola's experts inspected eighteen of the City's twenty-eight total libraries. Id. at 1226. Margen, Mastin, and Steinfeld all testified to discovering access barriers at the libraries, including "narrow aisles, inadequate turnaround space ...

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