September 8, 2014
The Americans with Disabilities Act requires local governments to provide accessible on-street parking in the absence of regulatory design specifications for on-street parking facilities, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court affirmed, on interlocutory appeal, U.S. District Judge Dean Pregerson’s denial of the City of Lomita’s motion to dismiss. Pregerson ruled that:
"the broad language of the ADA requires public entities to ensure that all services, including on-street parking, are reasonably accessible to and usable by individuals with disabilities."
The city had asked the court to dismiss the action by Robin Fortuyne, who alleged that he was a paraplegic and that his right to disability accommodation was violated because the city lacked on-street parking accessible to the disabled. The city had argued that the cause of action was not viable because the government has not adopted standards for disabled access on-street parking.
Judge Richard Paez, writing for the Ninth Circuit, explained:
"Recognizing the broad reach of the ADA, we have held that Title II requires public entities to maintain accessible public sidewalks, notwithstanding the fact that no implementing regulations specifically addressed sidewalks."
He cited Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), where the court cited an earlier case in holding that local governments must maintain accessible sidewalks because "maintaining public sidewalks is a normal function of a city and ‘without a doubt something that the City does.’"
In this case, as in Barden, Paez wrote, the city is required to comply with the ADA mandate regardless of whether there are implementing regulations.
Besides, the judge wrote, there are ADA regulations addressing the issue. "Two regulations in particular apply to public onstreet parking," Paez explained, beginning with 28 C.F.R. § 35.150, which applies to all existing facilities.
The regulation requires that a public entity “operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”
Paez reasoned that “[b]ecause the provision of public on-street parking is a ‘service, program, or activity,’ 28 C.F.R. § 35.150(a) applies to it.”
The regulation is somewhat flexible, because a city need not "make structural changes to all existing onstreet parking facilities if [it] can make public on-street parking accessible by other means, such as by providing accessible on-street parking at other nearby sites," he said. "But, at bottom, the regulation mandates program accessibility for all normal governmental functions, including the provision of on-street public parking."
The other regulation, 28 C.F.R. §35.151, governs only facilities that were constructed or modified after the ADA’s 1992 effective date, and requires that such facilities be "readily accessible to and usable by individuals with disabilities."
Paez wrote:
"By its terms, then, this regulation extends to newly constructed or altered on-street parking facilities. The City seeks to avoid this conclusion by pointing out that the technical specifications governing newly constructed or altered facilities are silent with respect to on-street parking. In addition to the general mandate of accessibility set forth in subsections (a)(1) and (b)(1), 28 C.F.R. § 35.151 also requires that newly constructed or altered facilities meet the technical standards set forth in the Uniform Federal Accessibility Standards…the 1991 Standards for Accessible Design…or the 2010 Standards for Accessible Design."
While those standards do not address on-street parking, the judge wrote, "nothing in 28 C.F.R. § 35.151 suggests that when technical specifications do not exist for a particular type of facility, public entities have no accessibility obligations," and such an interpretation could not be reconciled with the regulation’s requirement "that 'each' newly constructed or altered facility be readily accessible."
The case is Fortyune v. City of Lomita, 12-56280. (pdf)
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