Judge must decide what S.F. must do to boost access
Some of San Francisco’s sidewalks, parks and recreational facilities appear to violate legal standards for accessibility by people who use wheelchairs or have other mobility impairments, a federal appeals court ruled Thursday.
The decision by the Ninth U.S. Circuit Court of Appeals in San Francisco overturned part of the verdict by a federal judge, who ruled after a nonjury trial in 2011 that San Francisco complied with federal laws governing access for the disabled. The judge, the court said, had applied the wrong laws on access to streets and sidewalks, parks and public playgrounds, and wrongly discredited expert witnesses who found obstructions at many of those sites.
The appeals court, however, upheld the judge’s conclusion that disability advocates had failed to show citywide violations that would require a complete overhaul of construction and maintenance practices affecting disability access. Instead, the court sent the case back to the trial judge and told her to reconsider the case under the proper legal standards and decide how far the city needs to go to comply with the law.
The ruling “applies to every major American city,” said Guy Wallace, a lawyer for the disabled woman who filed the suit in 2007. In San Francisco, he said, “they’re going to have to make a lot of stuff truly accessible.”
But John Coté, spokesman for City Attorney Dennis Herrera, said the court had found that “the city’s public right-ofway and recreation and park programs, services and activities are accessible.” He said city officials were confident that further review would “show that San Francisco is doing what it should be doing.”
The suit was filed by Ivana Kirola, who has cerebral palsy and uses a wheelchair, and was certified by U.S. District Judge Saundra Brown Armstrong as a class action on behalf of 21,000 San Franciscans with impaired mobility.
Kirola said she has encountered a variety of barriers to access in the city’s public facilities, including a sidewalk where her wheelchair got stuck in a tree well, a street corner without curb ramps, and three inaccessible city swimming pools.
One of her expert witnesses testified that he had inspected 1,432 curb ramps in San Francisco and found access problems, in violation of federal standards, at 1,358 of them.
Kirola’s witnesses also described an inaccessible entrance ramp at one city park and a cracked sidewalk at another, city libraries with narrow aisles and inaccessible restrooms, and inaccessible or missing handrails at several city swimming pools.
The city’s expert witnesses said their own inspections had shown few such problems and noted that San Francisco’s Municipal Transportation Agency provides paratransit van and taxi services for the disabled.
After hearing the conflicting testimony, Armstrong said she found the city’s experts credible and rejected Kirola’s experts, finding that they had used inconsistent methods and applied the wrong criteria. She said the government standards they relied on, the Americans with Disabilities Act Accessibility Guidelines, do not apply to parks or playgrounds and also exempt streets and sidewalks, or at least those constructed or revamped before Jan. 26, 1992.
But the appeals court said the guidelines are legally binding on all facilities, including streets or sidewalks, that are “new or altered” since January 1992. They include standards for such things as the maximum incline of a ramp, the width of a park path and the dimensions of restrooms.
Such standards, written and implemented by government administrative agencies, are better suited to determining disability access than judges, who “do not have the institutional competence to put together a coherent body of regulation,” Judge Ronald Gould said in the 3-0 ruling.
Gould said Armstrong had ruled correctly that testimony by Kirola and other disabled persons “about cracked pavement, potholes, uneven sidewalks and missing or difficultto-use curb ramps did not establish inaccessibility at a programmatic (citywide) level.”
But he said Armstrong must re-examine the evidence under the proper standard, determine the scope of any violations at facilities used by disabled San Franciscans, and decide whether to order changes.