KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

A. TITLE II OF THE ADA

"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The ADA is comprised of five titles: Employment (Title I); Public Services (Title II); Public Accommodations and Services Operated by Private Entities (Title III); Telecommunications (Title IV); and Miscellaneous Provisions (Title V). Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). The purpose of the ADA's various provisions is "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2).

This action is premised on Title II of the ADA, which became effective on January 26, 1992, and applies to public entities. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir. 1998) (citing §§ 108, 205, Pub.L. No. 101-336). To demonstrate a prima facie case under Section 202 of Title II of the ADA, a plaintiff must show that:

(1) she is an individual with a disability; (2) she is otherwise qualified to participate in or receive the benefit of a public entity's services, programs or activities; (3) she was either excluded from participation in or denied the benefits of the public entity's services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of her disability.

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) (discussing requirements of a claim brought under 42 U.S.C. § 12132). "This prohibition against discrimination is universally understood as a requirement to provide 'meaningful access.'" Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009). "An individual is excluded from participation in or denied the benefits of a public program if 'a public entity's facilities are inaccessible to or unusable by individuals with disabilities.'" Daubert v. Lindsay Unified School Dist., 760 F.3d 982, 987 (9th Cir. 2014) (quoting 28 C.F.R. § 35.149).

ADA regulations recognize that "in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services." Tennessee v. Lane, 541 U.S. 509, 532 (2004). Accordingly, the regulations promulgated by the United States Attorney General to implement the requirements of Title II differentiate between structures built before the effective date of the ADA and those built or altered after.

Existing facilities constructed prior to January 26, 1992, are subject to 28 C.F.R. § 35.150, which requires only "program access." 760 F.3d at 988. Program access does not require that each and every facility is equally accessible to disabled persons. Cohen v. City of Culver, 754 F.3d 690, 694-95 & n.4 (9th Cir. 2014). Rather, it simply requires a public entity to "operate each service, program, and activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a) (emphasis added).¹ "Title II's emphasis on 'program accessibility' rather than 'facilities accessibility' was intended to ensure broad access to public services, while, at the same time, providing public entities with the flexibility to choose how best to make access available." Daubert, 760 F.3d at 986 (internal quotations and citation omitted). Public entities are directed to develop a "transition plan" to "achieve program accessibility" by "setting forth the steps necessary to complete such changes." 28 C.F.R. § 35.150(d)(1); Cohen, 754 F.3d at 696.

"New construction and alterations" commenced after January 26, 1992, are subject to more exacting requirements. Specifically, under 28 C.F.R. § 35.151, "[e]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, . . ." 28 C.F.R. § 35.151(a)(1) (emphasis added). To be "readily accessible," the facility "must be constructed in conformance with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), 28 C.F.R. Pt. 36, App. A, or with the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. Pt. 101-19.6, App. A." Daubert, 760 F.3d at 986 (emphasis added, citation omitted). "The ADAAG is a comprehensive set of structural guidelines that articulates detailed design requirements to accommodate persons with disabilities." Id. "[O]nly facilities that were constructed or altered after January 26, 1992, are subject to the ADAAG's requirements." Id. at 987.

^1. By way of comparison, Title III, which applies to private entities operating a "place of public accommodation," imposes more stringent requirements aimed at ensuring that every facility is equally accessible to disabled persons. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004); 1 Americans with Disab.: Pract. & Compliance Manual § 2:44. This means, for example, that each and every store operated by a retailer must be ADA compliant.