C. FACILITIES AND PROGRAMS
67. Separate and apart from its public right-of-way system, the City operates a number of programs, i.e., aquatic, library and RecPark programs, which are offered through various facilities located throughout San Francisco.
68. The library program is provided through the Main Library and twenty-seven branch libraries located throughout San Francisco. RT 2222:13-15.
69. The aquatic program is provided through nine swimming pools, RT 2763:21-2765:5.
70. The RecPark program is provided through approximately 220 parks spanning 4,200 acres of park space and 400 structures (i.e., clubhouses, recreation centers, etc.) thereon. RT 2264:13-17, 2302:12-16.
71. The City has enacted procedures and policies to ensure meaningful access, including program access, to its aquatic, library and RecPark programs, as summarized below.
1. Facilities Transition Plan
a) History and Objectives
72. In 2003, MOD hired Logan Hopper ("Hopper") as a facilities transition plan consultant. RT 1603:12-18. Hopper surveyed approximately 700 facilities across the City and prepared a draft transition plan. The draft transition plan identified the "essential services" offered by various city departments, including Library and RecPark, and estimated costs and timelines for removing the identified access barriers. RT 1603:22-1604:3, 1603:22-1604:3; PTX 0034 [000470, 000476, 000522-523, 000528-538].
73. Mizner, the Director of MOD, testified that because Hopper was not familiar with construction practices in San Francisco, she felt that he had significantly underestimated both the projected cost and the amount of time necessary to complete a particular project. RT 1603:12-1604:18. Accordingly, Mizner recruited Scott to lead the development of the City's facilities transition plan. RT 1604:14-18, 1770:10-12, 1777:21-1779:11. Scott, who had been the ADA Coordinator for the Port of San Francisco, is a licensed architect with more than twenty years of experience working on architectural access issues and is a former member of the U.S. Access Board's Recreation Access Advisory Committee and Places of Amusement Committee. RT 1771:21-1773:22, 1775:9-11.
b) Uniform Physical Access Strategy or UPhAS
74. In 2007, under Scott's leadership, the City developed its facilities transition plan known as the Uniform Physical Access Strategy ("UPhAS"). Scott's plan is based on the extensive work performed by Hopper and Gilda Puente Peters, another access consultant retained by the City, the capital plans of various City departments such as Library and Rec Park, and outreach to the disabled community to understand their priorities. RT 1452:20-23, 1779:12-1780:9; 1784:7-22; DTX B07, PTX 0035.
75. UPhAS governs the City's libraries and Rec Park facilities. RT 1791:15-1792:15; 1797:20-1798:5. The plan seeks to provide maximum access for the disabled to each City building and facility, RT 1785:14-1786:22; prioritize physical access solutions and limit the use of a program access approach (which allows a city to move programs to other sites rather than make access improvements), RT 1789:6-19; and offer programs and services in the most integrated setting possible, RT 1789:20-1790:10; DTX B07 [005317]). UPhAS calls for input from the public and MOD, as well as an annual assessment of access priorities. RT 1786:23-17878:4; PTX 0040.
76. UPhAS has no schedule or deadline for the removal of access barriers, but instead, sets funding targets to facilitate their removal. RT 1456:18-1457:15, 123:11-12, 612:2-9; PTX 0040. As such, the City's plan for implementing UPhAS changes annually, depending on funding. RT 612:2-4.
77. The City constantly re-evaluates UPhAS by tracking projects as they are created, built and completed. RT 1791:2-1791:14. Scott uses complex, color-coded spreadsheets and maps to track the status of each facility evaluated as part of the Hopper surveys and to graphically represent the accessibility of City facilities. RT 1798:6-1799:25; 1801:24-1802:2; 1810:6-25; PTX B39. Each color signifies a different status. RT 1799:4-25. Blue dots "signify a building that had undergone new construction or alterations," based on a post-2000 capital improvement project. RT 1463:8-1464:12; see, e.g., PTX 0148A. For instance, one of the maps shows all of the City's swimming pools located in San Francisco. DTX F16. Some pools are identified by a blue dot, while others are denoted with a red dot, which signifies "limited access." Id.
78. Trial testimony established that a blue dot was not intended to suggest that every element of the facility was 100 percent compliant with all applicable facilities access regulations; rather, it signifies that the facility was fulfilling the City's program access intent under UPhAS. RT 1464:14-23. In other words, a blue dot indicates only that the facility offers some accessible program or programs, and not necessarily that every physical element of the facility is compliant with disability access regulations.
79. Through UPhAS, the City seeks to attain a level of access greater than required under law (i.e., more than the legally-mandated program access) with respect to almost all of its various programs, services, and activities. RT 1785:23-1788:21. For example, the City strives to ensure that all libraries are accessible to disabled individuals, even though Title II does not require that the City make each library facility accessible. RT 1797:5-19. However, due to the broad, varying and diverse scope of RecPark facilities, the City aims for program access (as opposed to access greater than legally required) as to RecPark programs, services, and activities. RT 1797:20-1798:5.
2. New Construction and Alterations
80. Federal regulations promulgated to enforce the ADA require that each new facility or part of a facility constructed or altered after January 26, 1992, conform to either (1) the ADAAG (i.e., ADA Accessibility Guidelines for Buildings and Facilities) or (2) the UFAS, thereby allowing public entities to choose between the two accessibility standards. See 28 C.F.R. § 35.151.
81. The City has elected to use ADAAG as its standard for ensuring that newly constructed or altered facilities comply with federal access laws. RT 1919:20-24.
82. Since June 22, 1998, the City has required that all projects involving new construction or alterations of a building funded, in whole or in part, by the City, undergo review by City staff to ensure compliance with disability access laws. RT 1568:11-1569:24; 1914:17-1917:5; 1918:12-22; 1919:6-19; DTX P11; DTX A35 [000126-141]. To that end, City staff members regularly meet with architectural teams during the planning and design stage, review construction plans before permits are issued, visit sites during the construction process, and conduct post-construction field inspections to ensure access compliance. RT 1744:19-1748:15, 1901:15-1903:22, 1914:17-1917:5, 1918:12-22, 1919:6-19, 1568:11-1569:24; DTX P11; DTX A35 [000126-141].
83. The City also requires that sidewalks and curb ramps adjacent to newly constructed or altered City buildings be accessible to persons with disabilities. As a result, whenever a City facility is constructed or altered, the City evaluates the condition of the sidewalk and curb ramps bounding the perimeter of the project site, evaluates the path of travel from the facility to the public right-of-way, nearby parking and public transportation, and corrects any access problems identified. RT 1936:4-1938:11.
84. In January 2010, DPW adopted and implemented Procedure 9.8.24, which is a written accessibility compliance procedure that sets forth the review process for all projects designed by or contracted through DPW to ensure that all construction plans and completed facilities meet applicable access regulations and City standards. RT 1920:24-1921:24; DTX A14.
85. Procedure 9.8.24 requires DPW Disability Access Coordinator to conduct: (1) accessibility reviews during the planning and design of DPW-managed City projects, which includes the review of construction drawings and plans prior to submission to the Department of Building Inspection; (2) accessibility reviews during construction; and (3) post-construction inspections for disability access compliance before the building is certified for occupancy. DTX A14; RT 1921:25-1935:19; DTX J21; DTX K10. Publicly-funded projects reviewed by MOD undergo similar access reviews. RT 1742:23-1743:6, 1743:16-1748:15, 1901:15-1904:8. The Department of Building Inspection will not issue a building permit, or certify a project as complete, without written approval from MOD's compliance officers for each stage of design and construction. RT 1747:1-1748:15, 1901:15-1904:8.
86. Hecker opined that the City staff members responsible for design and construction review of publicly-funded projects are "well qualified, competent, detail-oriented professionals that really understand the accessibility requirements of the ADA." RT 2729:17-2730:3. The Court finds Hecker, who serves as a consultant to the DOJ in ADA enforcement actions, to be a credible witness and credits his testimony accordingly. RT 2720:6-2721:15.
3. Specific Programs
87. In addition to the City's public right-of-way system, Kirola challenges the City's compliance with Title II of the ADA with respect to its swimming pools, libraries and parks. These facilities are the means through which the City provides its aquatic program, library program and RecPark program, respectively.
a) Aquatic Program
88. The City's aquatic program is provided through nine public swimming pools. Six of the nine pools have been renovated and made accessible. RT 2767:8-2769:17; DTX F16.
89. Wood credibly opined that renovated pools have the features necessary to provide program access, namely: (1) an accessible route from the property line to the building; (2) an accessible entry; (3) an accessible check-in counter; (4) accessible signage; (5) accessible ramps or curb ramps, wherever necessary; (6) accessible toilets; (7) accessible showers; (8) accessible locker rooms; and (9) transfer lifts to assist individuals with mobility impairments to get into and out of the pool. RT 2136:7-2137:5.
90. Balboa Pool, Garfield Pool and Rossi Pool are coded with red dots, meaning that they are "limited access" pools. DTX F16. However, at the time of trial, a barrier removal project was underway at Garfield Pool, RT 1813:13-1814:4, and Rossi Pool and Balboa Pool have since been scheduled for barrier removal, Dkt. 658-1.
91. Hecker credibly opined that the number and distribution of accessible pools (six out of nine) is sufficient to provide program access for the City's aquatic program. RT 2767:8-2769:17; DTX F16.
b) Library Program
92. The City's library program is provided through its Main Library and twenty-seven branch libraries. RT 2222:13-15; DTX 132.
93. In 2000, the City embarked on a $153 million Branch Library Improvement Program ("BLIP"), a program largely funded by a voter-approved $106 million bond measure. RT 2222:16-2223:3; DTX C37; PTX 4057 [000113-114].
94. BLIP's express priorities are to ensure that twenty-four of the City's branch libraries are ADA compliant and seismically retrofitted. RT 2222:16-2223:3, 2228:25-2229:9; DTX C37; DTX D1; DTX F22; PTX 4057 [00118]; PTX 0045 [72].6 Although MOD had previously determined that the City was sufficiently providing program access to its library system through its four ADA-compliant libraries, it nevertheless approved BLIP after determining that the project met UPhAS's goal of providing a higher level of accessibility than the legally-mandated minimum program access. RT 1797:5-19.
95. As of April 29, 2011, the City had completed construction and/or renovation of seventeen of the twenty-four branch libraries covered under BLIP. The City anticipated completing work at five additional branch libraries between May and September of 2011. As to the two remaining projects, one was under construction at the time of trial and the other was anticipated to conclude in 2014. RT 2227:7-21; DTX I32.
96. Kevin Wesley Jensen ("Jensen"), DPW's Disability Access Coordinator, conducted disability access reviews pursuant to Procedure 9.8.24 for all BLIP projects, other than the Mission Bay Branch Library (which was reviewed by Whipple). RT 1900:24-1904:8, 1938:20-1939:24, 1939:25-1940:8. Jensen reviewed the projects at various points, including during design, planning, and construction. RT 2230:6-2233:13. Following the completion of the project, Jensen decided whether the building should be certified for occupancy. Id.
97. On a number of occasions, including one involving the Glen Park Branch Library, Jensen found that the construction work did not meet access requirements. In those instances, he withheld occupancy approval and required the library to correct the deficiencies before opening the branch location in question to the public. RT 2232:8-2233:13.
98. Jensen also evaluated the path of travel from each branch library to the public right-of-way, nearby parking and public transportation. Where necessary, he implemented access improvements, including the repair or replacement of sidewalks. RT 1943:8-1945:17.
99. In addition to the above, the City has undertaken additional efforts to ensure accessibility of its libraries. For example, the Library employs two dedicated accessibility coordinators—one who specializes in programmatic access and who trains staff on a variety of issues related to accessibility, and another who specializes in ensuring that library facilities are physically accessible. RT 2224:8-23.
100. Library staff use a Daily Facility Checklist to maintain the accessibility of each library facility. Each morning, trained library staff inspect their respective facilities, move furniture (including misplaced/errant step stools and chairs) or other objects that may impede the path of travel, and report any access issues that cannot safely or readily be corrected. Library staff members have various tools, such as door pressure monitors, to conduct these daily inspections. RT 2235:22- 2237:13, 2252:10-2253:21; DTX A45. Pursuant to the Library's policy of conducting daily inspections, misplaced furniture impeding an accessible path of travel remains out of place for, at most, twenty-four hours. See DTX A45.
101. The Library also offers a range of non-structural solutions to ensure access to its programs and events, including assistive technologies, books by mail, a Library on Wheels, a Library for the Blind and Print Disabled, a Deaf Services Center, and Accessibility Tool Kits, which include simple tools such as magnifying glasses, magnification sheets, book holders, pencil grips, and special rulers. DTX A43; RT 2248:7-2252:9.
102. At the time of trial, the City had instituted a policy requiring the installation of automatic door openers to increase accessibility in all buildings, even when not required under applicable access regulations. RT 2238:16-2239:6. The City also implemented custom access standards for use when purchasing furniture and equipment for its facilities. RT 1940:9-1942:24, 2233:14-2235:3; DTX V26; DTX V27; DTX V28.
103. Any public complaints regarding accessibility are handled by the Library's ADA Coordinator for Programmatic Access. Whenever possible, complaints are handled immediately. Some complaints, however, require investigation and assistance from other City departments, and others require funding and must be budgeted. RT 2253:22-2254:24.
6. Prior to the passage of the BLIP bond in 2000, the Main Library and three branch libraries (i.e., Chinatown, Ocean View, and Mission Branch) were seismically-upgraded and rendered ADA-compliant. As such, BLIP focused on the remaining twenty-four branch libraries. Id.
c) RecPark Program
104. RecPark manages approximately 4,200 acres of park land, which includes more than 220 parks and 400 built structures, including pools, recreation centers, clubhouses, and playgrounds. RT 2302:10-23, 2264:13-17.
105. Due to the scale and geographic distribution of its facilities, the City relies on a program access approach to provide disability access to RecPark programs, services, and activities (as opposed to making each and every RecPark facility individually and fully accessible). RT 1797:20-1798:5.
106. RecPark evaluates all of its recreation programs to ensure that they are accessible to individuals with disabilities, provide a range of accommodations, and maintain an inclusion services department that works with disabled individuals to meet their individualized needs. RT 2304:7-2305:6.
107. RecPark has three employees dedicated to accessibility: an ADA Programmatic Access Coordinator; an ADA Facilities Coordinator; and an Inclusion Services Director. RT 2305:8-2306:2.
108. The ADA Programmatic Access Coordinator serves as a liaison between the public, RecPark and MOD, provides staff training, and works to resolve access complaints. RT 2336:3-18.
109. The ADA Facilities Coordinator focuses on ensuring physical access to RecPark facilities via barrier removal and works closely with the City's Capital Division. RT 2305:22-2306:2.
110. The Inclusion Services Coordinator works with individuals who request custom accommodations, such as aides, wheelchair transportation, and assistive listening devices. RT 2336:24-2340:13.
111. RecPark requires daily inspection of its buildings and facilities for safety hazards or other issues that might impact access before they are opened to the public. RT 2315:15-2317:18; DTX Z60 (Employee Daily Facility Preparation Quick-Sheet).
112. RecPark also undertakes a semi-annual accessibility survey whereby it inspects its facilities using a more detailed accessibility checklist and corrects items that may affect physical access. RT 2318:2-2319:18; DTX Z61 (Semi-Annual Facility Accessibility Survey).
113. As mandated by Proposition C, a 2003 voter referendum, RecPark regularly inspects features such as pathways, playgrounds, athletic courts, and trees. These inspections promote accessibility by focusing on path of travel issues, such as surface quality of pathways, the operability of gates and latches, and removal of barriers such as low hanging tree limbs. RT 2320:2-2321:6.
114. RecPark has a written policy that categorizes and prioritizes maintenance requests and complaints as follows: emergencies, which are to be addressed immediately; health, safety and accessibility issues, which are to be addressed within forty-eight hours; and routine issues.7 RT 2306:3-2309:14; DTX A10.
115. The public may obtain information relating to the department's programs, services, and activities—including accessibility information—through RecPark's website. RT 2344:25-2348:19; PTX 3875.
116. The website contains a webpage specifically dedicated to disability access issues, which provides information regarding facility accessibility and programmatic accessibility, as well as contact information for further access inquiries. RT 2347:24-2348:19; PTX 3875 [075767]. It also provides instructions for submitting individualized requests for inclusion services or accommodations, as well as a list of available adaptive recreation classes and activities. RT 2347:24-2348:19, 2354:10-24; PTX 3875 [075768]. The website includes a map function that identifies parks and recreation facilities as either "accessible" or "limited wheelchair accessibility." PTX 3875 [075769].
117. The purpose of the website is to provide the public with "shorthand information" regarding City facilities that contain programs accessible to wheelchair users. RT 1502:13-16. As such, the website defines an "accessible" park or outdoor area as one that has a wheelchair accessible entry and "at least one accessible recreational opportunity." RT 1476:24-1477:14, 2329:11-16; PTX 3875 [075767]. The website advises the public that due to the terrain, age, and natural features of the City's outdoor areas, "there will be sites labeled 'accessible' in which some areas of the site are not accessible to wheelchair users." PTX 3875 [075767].
118. RecPark makes reasonable efforts to fulfill special accommodation requests made by persons with disabilities. RT 2348:20-2354:3. Although RecPark requests seventy-two hours' notice for such requests, it nonetheless strives to accommodate requests received less than seventy-two hours in advance, as well. RT 2310:12-2312:24, 2348:20-2350:1.
119. At trial, RecPark's ADA Coordinator for Programmatic Access testified that he was unaware of any situation in which RecPark had been unable to fulfill a request for accommodation, and there has been no showing to the contrary. RT 2352:16-19.8
120. Since 2000, RecPark has spent over $500 million on capital projects to improve the City's RecPark facilities through its Capital Improvement Program. RT 2265:2-2266:2; DTX C32 [000003].
121. As RecPark renovates each park and facility under its Capital Improvement Program, it makes access improvements as necessary to ensure compliance with access regulations. RT 2274:3-2275:7.
122. In 2008, RecPark estimated its capital need for its entire system to be roughly $1.7 billion. RT 2267:2-12.
123. The majority of funding for RecPark improvements derives from voter approved measures, including the 2008 Clean and Safe Neighborhood Parks General Obligation Bond ("2008 Bond"), while the remainder came from other sources, such as the City's General Fund. RT 2266:11-2267:2.
124. In connection with the 2008 Bond, RecPark conducted a year-long community outreach campaign to select the parks to be included in the bond measure. Based on the feedback it received, RecPark selected fourteen neighborhood parks or park facilities for inclusion based on the following four criteria: (1) earthquake safety hazards; 2) physical condition; (3) location in dense urban areas; and (4) the provision of "core park amenities," such as a play area, green space, recreation facility, athletic field, or athletic court. RT 2267:13-2272:24, DTX O37 [00029-35]. All of the 2008 Bond projects include expenditures for access improvements. Id.
125. At the time of trial, RecPark and MOD were planning a $150 million general obligation bond for further park improvements for inclusion on the November 2012 ballot. RT 2277:3-12, 1808:18-1809:23.
126. Pursuant to UPhAS, MOD studies and tracks RecPark's capital projects. RT 1802:25-1803:3, 1805:1-22. MOD works closely with RecPark staff and provides guidance on accessibility issues, such as the priorities selected for the 2008 Bond and the accessibility standards to apply. RT 1806:3-18, 1808:11-17.
127. DPW's Disability Access Coordinator and MOD's Access Compliance Officers perform disability access reviews for RecPark's capital improvement projects. RT 1945:18-1946:14, 1901:3-14.
128. Jensen, DPW's Disability Access Coordinator, followed Procedure 9.8.24, which sets forth the review process for compliance with accessibility standards, for all RecPark projects he reviewed. RT 1946:15-1947:1. He also evaluated the path of travel from each site evaluated to the corresponding public right-of-way, nearby accessible parking, and public transportation, and he required access improvements where necessary. RT 1948:7-1949:4. In addition, Jensen used the playground and recreation accessibility standards developed by the U.S. Access Board when reviewing RecPark projects, even though they had not yet been adopted by the DOJ. RT 1947:7-1948:6.
7. The trial record does not indicate RecPark's timeframe for addressing routine issues.
8. RecPark also works with the community to accommodate requests from gardeners with disabilities. RT 2282:18-2283:15. Trial testimony, however, does not establish that Kirola or any of the other class members ever attempted to visit any of San Francisco's community gardens. As such, the Court does not discuss the City's community garden program in detail.
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