KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

c) Aquatic Program

117. The City operates nine public swimming pools as part of its aquatic program. RT 2763:21-2765:5. As of 2009, six of the nine pools were made accessible. RT 2767:8-2769:17. At trial, Hecker credibly testified that the number and distribution of accessible pools located throughout San Francisco is sufficient to provide meaningful access to the City's aquatic program. RT 2768:4-11.

118. Neither Kirola nor class members presented any compelling evidence to establish a denial of program access to the City's aquatics program. The three pools Kirola complained about were not designated as accessible at the time of trial. However, program access does not require the City to make every pool accessible. Rather, the City ensures program access to it aquatics program through its other pools. Notably, Kirola acknowledged that she regularly uses Hamilton and MLK Pools—the latter of which is her "favorite"—without difficulty. RT 1392:17-1393:23.

119. The testimony of class members likewise fails to demonstrate a lack of program access. Kimbrough complained that the ramp at Balboa Pool is too steep for her younger disabled daughter to access the pool area and watch her sister take swim lessons. RT 848:18-24, 838:12-839:19. Although Coffman Pool is only one mile further away and fully accessible, Kimbrough stated that she does not want to take her family there because her eldest daughter's swimming instructor teaches at Balboa Pool, and she feels that Coffman Pool is not located in a safe neighborhood. RT 849:10-17, 852:19-853:2.

120. The Court finds that Kimbrough's testimony fails to demonstrate a denial of program access. Watching a sibling take swim lessons is not a program, activity, or service provided by the City. See Daubert, 760 F.3d at 987 ("experiences that are merely incidental to normal government functions are not fairly characterized as government programs under 28 C.F.R. § 35.150."). But even if Balboa Pool were inaccessible, the fact remains that there are a variety of other pools which are fully accessible and available to her, including Coffman pool, which is only a mile further away.²⁵ That Kimbrough may personally dislike Coffman Pool, without more, has no bearing on whether the City is in compliance with its obligation to render its aquatic program accessible to mobility-impaired persons on a program access basis. See Daubert, 760 F.3d at 988.

121. Monasterio, also a mother of a class member, testified that the closest swimming pool to her is Garfield Pool, which lacks "a safe space for her to sit and shower." RT 1233:21-24. Although Monasterio thought Garfield Pool was designated as accessible, it is, in fact, designated as having only limited accessibility. RT 1234:10-12; DTX F16. In any event, Monasterio's negative experience with one of the City's nine pools does not demonstrate a denial of program access to the City's aquatic program.

122. Cherry testified that she once attempted to take a swimming class at MLK Pool but that she had been forced to discontinue the class as a result of the pool's lift being consistently broken over a one-month period. RT 1043:15-1045:19. The inoperability of the lift presents a maintenance, as opposed to a barrier, issue. Nonetheless, the temporary inaccessibility to a swim class at a particular pool does not demonstrate a lack of program access, since the City is not required to provide identical services at each pool. See Pierce, 526 F.3d at 1222 ("We also emphasize that the district court should look at the offerings as a whole and in their entirety and thus the court is not required to ensure that each individual program or service offered at Theo Lacy and Musick is offered in complete parity with an offering at the Central Jail.").²⁶

123. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's aquatic program.

^25. Plaintiff's expert Steinfeld opined that Coffman Pool and Martin Luther King Jr. Pool (two accessible pools) are too far from Balboa Pool to be considered meaningful alternatives. RT 673:4-23. Kimbrough, however, testified that Coffman Pool is only two miles from her home. RT 852:18-853:2, 848:18-24.

^26. As an ancillary matter, Kirola complains that, in violation to 35 C.F.R. § 35.163(b) the City fails to provide signage at parks and swimming pools directing disabled persons to other accessible areas of a park or other accessible pools. Dkt. 604, 18, 21. Section 35.163(b), provides, in pertinent part, that "[a] public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities." There is no mention of providing signage regarding other accessible facilities.