KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

d) RecPark Program

124. Kirola's evidence regarding the City's RecPark program similarly fails to show a denial of program access. Of the City's 220 parks, Kirola only complained about the steep entrance and paths at Alamo Square Park, which she acknowledged is located on a steep hill. RT 1385:3-16, 1394:2-4. Although Kirola testified that she could not access the playground there, she did not claim that the park was otherwise inaccessible to her. RT 717:10-21. Nor did she offer any testimony regarding any inability to access the multitude of other parks operated by the City.

125. Cherry, Kimbrough and Monasterio testified regarding accessibility issues at a handful of the City's 220 parks. Much of the testimony was sparse and non-specific. For example, Cherry claimed that all of the parks in her area "need help" and "haven't been maintained the way they should," but she did not elaborate further. RT 1041:1-5. Monasterio stated that her daughter could not enter the Tea Garden, but did not explain why. RT 1237:23-1238:1. Other accessibility complaints pertained to issues inherent in the terrain. Monasterio stated that the paths at Glen Canyon Park are uneven or unpaved. RT 1234:16-1237:2. Yet, she acknowledged that the park is located in a "Eucalyptus forest" that is "very wild." RT 1234:16-1237:2. Similarly, Kimbrough complained about steep pathways leading to the playground at Holly Park, which is located at the "top of a hill." RT 837:19-838:5. The testimony of class members, at best, shows that they occasionally encountered barriers at certain parks; however, it does not establish that they were denied access to RecPark programs, services and activities in their entirety. Title II of the ADA mandates meaningful access on a program access level, not on a neighborhood or facility-specific basis.

126. In contrast, the City presented compelling evidence to demonstrate its compliance with Title II of the ADA. The athletic fields, play areas and recreation centers (along with open space that is provided at virtually every park), represent core features that together provide the range of services, programs and activities available at the City's parks. Across San Francisco, the City provides twenty accessible athletic fields, and eight additional athletic field facilities that were, at the time of trial, in the planning phase and either fully funded or in design or construction. RT 1818:3-18; DTX F34. Notably, Hecker credibly opined, based on his review of the "blue dot" designations determined Scott, as well as his training, knowledge and experience, that the number and distribution of these twenty accessible athletic fields is sufficient to provide program access to the City's athletic programs. RT 2769:18-2771:2.

127. The City provides forty-three accessible Recreation Centers and Clubhouses, which have either been renovated since 2000, or received a specific barrier removal since 1992. Additional facilities are "in the pipeline" for renovation. RT 1816:5-1817:1; DTX F40. Focusing solely on Recreation Centers, which are larger than Cluhouses and include a gymnasium, fifteen out of twenty-three facilities are accessible, and five additional Recreation Centers have received funding for access renovations, or are already in design or construction. DTX 40. The number and distribution of accessible Recreation Centers and Clubhouses are sufficient to provide program access to the programs housed in these facilities. RT 2771:3-2772:12. Likewise, the City provides an equitable distribution of accessible children's play areas throughout San Francisco. RT 1815:9-20; PTX 148A.

128. Kirola contends that the Community Garden Program is not accessible. The Community Garden is a program intended for people who do not have backyards, and serves organized community clubs that operate each community garden. RT 2281:10-2283:15. Only group members are eligible to participate in the "program" offered at the community garden sites. Id. RecPark makes access improvements each time it performs construction work at a community garden. Id. In addition, it accommodates each individual access request it receives from club members who actually use the garden. Id. Neither Kirola, nor any class member who testified at trial, belongs to any community club that operates a community garden, nor has Kirola ever attempted to visit a community garden as a member of the public. Kirola's claims based on the community gardens fail for lack of standing, and for lack of proof.

129. Kirola, through her experts, also asserts that the City fails to provide program access in its parks, because some "unique" park facilities are not "fully accessible" and "ADAAG-compliant." This assertion is uncompelling for a number of reasons. First, this contention erroneously focuses on a "unique facility," without identifying any unique program that is only offered at that facility. Second, because ADAAG does not apply to playgrounds or to outdoor developed recreational areas, Kirola has applied an inapplicable standard. In any event, as Kirola's experts readily acknowledged, program access is a much more subjective standard than ADAAG-compliance, RT 1366:3-13, and only a small portion of a particular park must be accessible in order to provide the requisite program access, RT 717:10-21.

130. Kirola argues that Golden Gate Park is unique and therefore must be fully accessible. Assuming arguendo that Golden Gate Park should be analyzed in isolation, the Court finds that the City provides meaningful access thereto. Golden Gate Park has an extensive network of accessible paths, with accessible parking and accessible restrooms disbursed throughout the park, providing ample opportunity for class members with mobility disabilities to enjoy Golden Gate Park's varied landscapes. RT 1819:2-1821:20, 1824:14-1825:6; DTX F37. The popular destinations in Golden Gate Park—namely, the Conservatory of Flowers, the Arboretum and the Japanese Tea Garden, are also accessible.

131. Even if the Court accepted Kirola's premise that the path of travel through the formal gardens in front of the Conservatory of Flowers interferes with program access, her analysis ignores additional accessible parking on JFK Drive, which offers a shorter route to the Conservatory entrance. RT 2112:24-2114:6; DTX F37. The Arboretum offers an extensive network of accessible trails (evaluated according to the proposed federal standards for outdoor areas), and two sets of accessible restrooms. RT 2114:7-2116:23; DTX F37.5. The Japanese Tea Garden has accessible paths, to the extent practical, without necessitating fundamental alterations to the facility. RT 1360:20-1362:1. In any event, additional improvements for the Japanese Tea Garden were scheduled to be completed shortly after trial, and will further enhance access to the Tea House. RT 2325:4-20.

132. Similarly, Kirola has made an insufficient showing of inaccessibility as to Dolores Park. At the time of trial, RecPark was commencing a complete $16 million renovation of Dolores Park that will render the park completely accessible. RT 2278:3-2279:12. RecPark is also planning renovations at Glen Canyon Park and estimates the cost at $20-$40 million. The 2008 Bond provides $5.8 million for Glen Canyon Park, and RecPark will prioritize work there based on community input. RT 2279:13-2280:14.

133. Next, Kirola argues that all elements of the "blue dot" facilities are not entirely compliant with facility access regulations. As discussed earlier, MOD uses color-coded spreadsheets and maps to track the status of each of the approximately 700 facilities surveyed by Hopper and illustrate the distribution of accessible facilities across the City. Blue dots are placed on those maps to indicate where a capital improvement project has taken place since 2000. See Findings of Fact ¶ 77.

134. Not every aspect of a facility where a program is offered must necessarily be fully accessible. See Daubert, 760 F.3d at 987. Nor does Title II of the ADA require complete parity of services at each of the facilities through which the City offers its programs. See Pierce, 526 F.3d at 1222; see also RT 717:10-21 (testimony by Plaintiff's expert that only a "small part of a park" must be accessible to provide program access). That aside, Kirola overlooks the fact that the City's "blue dot" designation is not intended to signify 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, not that every physical element of the facility is compliant with disability access regulations. In addition, Kirola's arguments regarding the "blue dot" facilities are unpersuasive given that her experts admittedly did not inspect each of the City's "blue dot" libraries, pools, and parks; as to those "blue dot" facilities which they did visit, their site assessments were shown by the City to be unreliable.

135. 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 RecPark program.