San Francisco Chronicle

Judge must decide what S.F. must do to boost access

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicl­e.com Twitter:@egelko

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.

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