KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

2. New Construction and Alterations

136. Pursuant to 35 C.F.R. § 35.151, the City has elected to use ADAAG as its standard for newly constructed or altered facilities. RT 1919:20-24. According to Kirola, the City's policies and practice are insufficient to ensure "strict compliance" with ADAAG as to City facilities newly constructed or altered after January 26, 1992. Dkt. 604, 22:11-24:5. In particular, Kirola contends that her experts' inspections of the City's libraries and parks revealed disability access barriers in violation of ADAAG or the California Building Code. Id.

137. The Court has found the opinions of Kirola's experts, including those relating to the City's compliance with ADAAG and the California Building Code, to be unreliable. E.g., Findings of Fact ¶ 205-228. Among other things, Kirola's experts relied on unqualified individuals to conduct their inspections, and applied faulty and inconsistent methodologies and inapplicable access requirements. They also failed to properly take into account dimensional tolerances and their impact on the variation. Cherry v. City Coll. of San Francisco, C 04-04981 WHA, 2006 WL 6602454, *6 (N.D. Cal. Jan.12, 2006) ("[T]he burden is on plaintiffs to prove that the variance exceeds the allowed tolerance. It is not enough to simply show that a particular bathroom stall, for example, is less than the required width. The approximate extent of any shortfall must be proven. And, the dimensional tolerance at the time of construction must be proven.").

138. In any event, the few isolated departures from ADAAG's dimensional requirements in newly constructed or renovated facilities identified by Kirola's experts do not establish any systemic deficiency in the City's policies or practices for the design and construction of publicly funded construction projects. RT 2040:1-2046:12 (noting that only 1.6% of the items identified by Kirola's experts' "needed to be changed"). No facility or building is perfect. RT 2044:9-2046:12; 2733:14-2734:6. A typical building has thousands of access measurements; a single set of restrooms has hundreds of access measurements. RT 1357:2-9. Indeed, Plaintiff's expert Gary Waters confirmed that an architect's professional standard of care is to deliver a building that "generally conforms" to access requirements, and that is the standard he used as court appointed expert monitoring settlement compliance in another ADA action previously pending in this District. RT 1353:19-1357:1.

139. In sum, the Court finds that the few variations from ADAAG or the California Building Code with respect to new construction or alterations are insufficient to show that Plaintiff or class members were denied meaningful access to the City's programs, services or activities or that they are entitled to relief on a class-wide basis.