E. EXPERT TESTIMONY
171. Kirola offered expert testimony from Peter Margen ("Margen"), Dr. Edward Steinfeld ("Steinfeld"), Jeffrey Scott Mastin ("Mastin"), Gary Waters ("Waters") and David Seaman ("Seaman").
172. Mastin is a licensed architect and was received by the Court as an expert in architecture, construction, disability access, program access for mobility disabled persons, ADA transition plans, and barrier removal. RT 927:6-931:23.
173. Steinfeld is a professor of architecture, the Director of the Center for Inclusive Design and Environmental Access ("IDEA Center"), and an advocate for improved disability access standards, and was received by the Court as an expert in architecture, accessibility design, universal design, program access, and transition planning for public entities. RT 606:7-607:9, 767:6-13.
174. Margen, a disability access specialist, was received as an expert on disability access. RT 100:17-101:3.
175. Waters, a licensed architect, certified access specialist, and disability access consultant, was received by the Court as an expert in disability access, program access for persons with mobility disabilities, the preparation and implementation of self-evaluation and transition plans, and policies, procedures and practices regarding disability access barrier removal. RT 1306:23-1310:6.
176. Seaman was qualified as an expert in GIS. RT 489:19-490:5.
177. The City offered expert testimony from Hecker and Larry Wood ("Wood").
178. Hecker, a licensed architect, was received by the Court as an expert in architecture and disability access. RT 2037:7-2038:3.
179. Wood, an architect and accessibility consultant with a nation-wide practice, was received by the Court as an expert in architecture, disability access, self-evaluation plans, transition plans, and Title II program access requirements. RT 2722:25-2723:6.
1. Public Right-of-Way
180. Kirola's experts offered a variety of testimony regarding their evaluation of the City's curb ramps and sidewalks.
181. Mastin opined that 1,358 of the 1,432 curb ramps he inspected were inaccessible or non-compliant. RT 1215:12-1218:7; PTX 4148.
182. Steinfeld found barriers relating to curb ramp accessibility at thirteen of the fourteen site inspections conducted by his team that involved inspection of the public right-of-way. RT 704:9-12.
183. Margen inspected sidewalks and curb-ramps at ten street intersections and/or street segments, and asserted that there were "major barriers to accessibility" which rendered "the system as a whole not accessible." RT 330:21-331:1.
184. The Court finds that the opinions offered by Kirola's experts are unreliable and unpersuasive.
185. As an initial matter, the Court has serious concerns regarding their methodology. For instance, Kirola's experts failed to consider the height of the curbs or widths of the sidewalks they examined, even though both are critical measurements that may impact the design, construction, and accessibility conclusions of the curb ramps at issue. RT 2073:11-16. The record also shows that they failed to take steps to apply a consistent method of measuring slopes, sidewalks, and curb ramps, and improperly applied ADAAG to the public right-of-way. RT 398:12-399:5, 2055:24-2056:7, 2058:20-2061:6, 800:24-802:21, 2048:9-15.
186. The Court also has concerns regarding the qualifications of the persons conducting the evaluations. Steinfeld conducted his surveys mostly with the help of student interns who were not trained on California accessibility standards and whose work was shown by the City to be unreliable. RT 738:2-739:22, 800:14-801:25, 817:12-819:2, 2065:1-20. Margen is not an architect. According to fellow expert Mastin, only licensed architects are qualified to be experts in disability access standards. RT 1250:19-1251:22.
187. Wood, the City's accessibility expert, whom the Court finds to be credible, was particularly critical of the methodology utilized by Kirola's experts, opining that "there was no common way of measuring anything, such as slopes, sidewalks, [and] curb ramps" and that "they all seemed to have a different approach that was somewhat haphazard." RT 2056:3-7. Notably, the inconsistencies in such measurements led to internal disagreements between Kirola's experts. Steinfeld's colleague, Denise Levine, who supervised the site inspections conducted by Steinfeld's IDEA Center team, viewed her methodology as superior to the methodology employed by Kirola's other access experts and rejected their inspection protocols in favor of her own. RT 800:24-802:21.
188. Also problematic is Kirola's experts' failure to account for dimensional tolerances. Due to variations in workmanship and real-world construction practices, minor variations in the curb ramp or sidewalk construction may occur. 28 C.F.R. part 36, App. D, § 3.2 ("[a]ll dimensions are subject to conventional building industry tolerances for field conditions"). For instance, there may be slight imperfections in a curb ramp surface, or, at different points along the ramp, the slope or grade may not necessarily be uniform. RT 2061:2-2062:62:13. These variations may be the result of using a hand-trowel during the construction process and the natural settlement of concrete. RT 2061:22-2062:2. According to Wood, a dimensional tolerance is a permissible deviation from standards commonly accepted in the construction industry and does not impact accessibility under ADA guidelines. RT 2057:2-20, 2062:10-2063:2. Mastin, who conducted the majority of the curb ramp assessments, failed to account for such tolerances. In failing to do so, he inappropriately found trivial and insignificant deviations as access barriers, despite the fact that such deviations are permissible under industry standards. RT 955:5-10, 1272:1-12, 1282:4-18, 2055:24-2057:20.
189. In addition, Kirola's experts measured curb ramp slopes without considering the ramp's overall "rise in run" and flatness. RT 2056:10-2057:1. Instead, they recorded the maximum localized variation (i.e., the steepest individual point along the slope of the curb ramp), which skewed their results. RT 2056:10-2057:1, 2058:20-2061:6, 771:11-772:8. Steinfeld, for instance, acknowledged that the measurements he made regarding the overall slope of each curb ramp were based on the most extreme variation in the ramp's grade, misleadingly characterizing that measurement as applying to the ramp as a whole. RT 771:23 ("we use the steepest slope as what we record"). In other cases, the measurements taken were erroneous. Mastin admittedly cited dozens of curb ramps with a slope of less than 8.3 percent as non-compliant—when, in actuality, a slope of 8.3 percent or less comports with the ADAAG. RT 1275:5-21. Wood noted this discrepancy in his testimony. RT 2081:5-10. Wood also pointed out that Kirola's experts routinely cited items such as pot holes or utility grates as access barriers, notwithstanding the fact that there was an ADA compliant (i.e., 48-inch wide) path around the item. RT 2079:10-2081:10.
190. The Court further discounts the probative value of Kirola's experts' opinions and reports based on their misapplication of ADAAG, which applies specifically to post-January 26, 1992, construction. RT 2172:11-14. The ADAAG's current regulations focus on buildings and facilities, and do not explicitly encompass the public right-of-way (though a public right-of-way section has been reserved). Indeed, on July 26, 2011, the U.S. Access Board published Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way, thus implying that the Board intended the current guidelines to be limited to newly constructed buildings and facilities (and the curb ramps, sidewalks, and loading zones associated with such buildings and facilities). Dkt. 636, Exh. A.
191. Even if the ADAAG were applicable to a public right-of-way, its provisions would apply only to newly constructed or altered elements of the public right-of-way. See 28 C.F.R. § 35.151. Despite this distinction, Kirola's experts indiscriminately applied the ADAAG to each curb ramp assessed without taking in account when the curb ramps were constructed or altered. The fact that Kirola's experts inappropriately applied the ADAAG to every curb ramp assessed without first ascertaining when the curb ramp was constructed or altered and whether the ADAAG therefore applied undermines both their credibility and the probative value of their testimony.
192. As for Margen's claim that the "the [City's] system [of curb ramps and sidewalks] as a whole is not accessible," the Court finds his opinion unpersuasive. RT 330:21-331:1. Margen was not certified as an expert on program access under Title II of the ADA nor is he an architect. RT 100:17-101:3. According to Mastin, only licensed architects are qualified to be experts in disability access standards. RT 1250:19-1251:22. Further, Margen's lack of knowledge was apparent from his inconsistent testimony regarding his understanding of Title II's program access requirements. RT 100:17:101:3, 105:20-25, 333:9-11. The Court therefore affords Margen's conclusions regarding program access little weight.
193. The Court also ascribes little weight to the testimony of Kirola's GIS expert, Seaman, who performed an analysis of the data contained within the CRIS database as of January 21, 2011, and prepared maps, which depict corners lacking curb ramps and curb ramps with low condition scores. RT 494:14-500:13. Seaman's geographic representations of the CRIS data are misleading in that he failed to show data for accessible curb ramps near the purportedly non-accessible curb ramps, despite the fact that such data was available to him. RT 530:3-5. In addition, testimony presented at trial demonstrates that the CRIS database was not up to date and lacked data for curb ramps installed through departments other than DPW. RT 2396:19-2397:7, 2401:14-16, 2403:12-2404:9.
194. In contrast, the Court finds the opinions of Hecker, the City's accessibility expert, to be more credible. The DOJ's "Tool Kit for Title II Entities" advises public entities to create long-range plans to provide curb ramps where needed and to employ a request-based system for installing curb ramps. RT 2811:7-2812:15. Hecker opined that the City's priorities for curb ramp installation, as set forth in the Curb Ramp and Sidewalk Transition Plan, are consistent with the priorities and recommendations established by the DOJ. RT 2785:17-2787:13, 2789:3-2790:18, 2811:7-2812:15.
195. On cross-examination, Kirola asked Hecker about a December 2009 expert report in which he had stated that the City had not yet installed every curb ramp necessary for program access when the network of City sidewalks was viewed in its entirety, but that the City was making progress toward program access. RT 2795:19-2796:8. However, Hecker acknowledged that at the time he issued the 2009 report, he had not actually determined the total number of curb ramps needed to achieve program access for the purposes of that report. RT 2797:15-2798:6. Hecker provided no updated program access conclusions regarding the City's public right-of-way. In any event, Hecker's observations in the 2009 report do not undermine his opinion that the City's policies and programs for curb ramp installation comport with the ADA. RT 2785:17-2787:13, 2789:3-2790:18, 2795:19-2796:8; PTX 0022 [003798].
196. To summarize, the Court finds that the opinions of Kirola's experts regarding whether the City provides meaningful access to its public-right-of-way are uncompelling, particularly in light of the persuasive testimony provided by Wood, and affords them little weight. The Court finds Hecker, the City's access expert, to be credible, and finds the City's priorities for curb ramp installation, as set forth in the Curb Ramp and Sidewalk Transition Plan, to be consistent with the priorities and recommendations established by the DOJ.
2. Library and RecPark Facilities
197. The Court now addresses the expert testimony regarding whether mobility-impaired individuals have been provided with meaningful access to the City's Library and RecPark facilities. The following section is divided into two parts. The Court first addresses the opinions offered to support Kirola's contention that, to comply with its access obligations, the City must make each of its individual libraries, parks, pools, and recreation centers fully accessible because the City has a program of providing "unique" neighborhood facilities. See, e.g., RT 103:6-104:19. Following those findings, the Court will address the opinions and findings of Kirola's experts that there are significant accessibility barriers that preclude program access with respect to the aforementioned facilities.
a) "Neighborhood" Access Theory
198. According to Margen, each individual park or library constitutes a "unique" program because of its status as a "neighborhood" site. RT 104:1-19, 406:25-407:22. Margen opined that program access, "as it relates to San Francisco," means that all services and activities available at one facility must be made available at every facility. RT 105:20-25. He admitted, however, that his opinion was not based on any authoritative publication in his field, but was simply his personal opinion. RT 407:8-22. In addition, Margen, who was not received as a program access expert, later contradicted himself, stating that the services offered at one park need not be duplicated at every park, "but where services are provided, those services need to be accessible." RT 333:9-11. The inconsistencies in and apparent arbitrariness of Margen's opinions raise concerns regarding his actual understanding of the program access requirements. RT 100:17:101:3, 105:20-25, 333:9-11. The Court therefore gives little weight to Margen's opinion.
199. Like Margen, Steinfeld opined that each City park is "unique," and therefore, the City's efforts to offer program access to its park system was not "workable" in light of the length of time it would take to walk from one park to another. RT 615:17-616:4, 619:18-621:8, 629:12-15. Though admitting that every park need not be made accessible, he opined that the City must provide an "equivalent park" within a "reasonable" distance from every non-accessible park, which he posited to be one-half of a mile. RT 624:11-13, 625:8-626:8. He reasoned that certain "very special parks," such as Mission Dolores Park or Golden Gate Park, have no equivalent, and as such, each of those parks must be fully accessible. RT 629:3-15. Steinfeld also asserted that parks are unique to the particular neighborhood in which they are located and potentially have "neighborhood meaning." RT 618:21-25.
200. Steinfeld presented no foundation for his opinions, and conceded that he had never visited Mission Dolores Park and knew little about it. RT 797:19-23. He also contradicted himself, testifying that only "a small part" of a particular park must be accessible in order to provide the requisite program access. RT 717:10-21. In addition, the suggestion that the name of a park connotes its unique, neighborhood meaning, is both unfounded and illogical. The mere fact that a park is named after the area in which it is located does not establish that the park has "neighborhood meaning" or that the City is obligated to ensure that each and every "neighborhood" park is accessible. Given the lack of any identifiable bases for Steinfeld's opinions, it is readily apparent that his testimony was based on his personal views, rather than a professional understanding of a public entity's Title II obligations. For the reasons discussed, the Court finds Steinfeld's opinions to be unpersuasive and gives them little weight.
201. The Court also affords little weight to Steinfeld's opinions that Coffman Pool and MLK Pool (which are designated as accessible pools) are not meaningful alternatives to Balboa Pool for persons with mobility disabilities due to their distance from Balboa Pool. RT 673:4-23. Kimbrough, a mother of a class member, testified that Coffman Pool was only two miles from her home while Balboa Pool was one mile from her home. RT 852:18-853:2, 848:18-24. Given the proximity of Coffman Pool to Balboa Pool, the Court is unpersuaded by Steinfeld's suggestion that the Coffman Pool is not a meaningful alternative. Steinfeld's conclusion in this regard detracts further from his credibility and program access conclusions.
202. Mastin opined that the City must make "each and every" one of its "unique" facilities accessible to satisfy its program access requirements under the ADA. RT 1223:22-1224:4. Mastin testified specifically regarding recreation centers, stating that, in his opinion, the City's recreational centers are "localized" and that it is "not equivalent to go to someone else's neighborhood and socialize with people you don't know." RT 1172:22-1174:10. Mastin failed to cite any authority or identify a factual basis in the record for his opinions, and the Court concludes that, like Steinfeld, his opinions are based on his personal, subjective views as a disability access advocate, rather than a professional understanding of a public entity's Title II obligations. The Court therefore finds Mastin's opinions to be unpersuasive and gives them little weight.
203. Waters opined that the "uniqueness of a particular facility" is a factor to be taken into account when determining whether or not program access has been afforded. RT 1349:4-15. Again, Waters failed to cite any authority or identify any factual basis in the record for his opinions, which are based on his personal opinions as a disability access advocate rather than on a professional understanding of a public entity's Title II obligations. The Court therefore finds Waters' opinions to be unpersuasive and affords them little weight.
204. In sum, although each library, park, pool, and recreational center arguably may have some "unique" features, that does not, in turn, support the conclusion that each individual library, park, pool, and recreational center must be fully accessible in each neighborhood. The opinions of Kirola's experts are not grounded on any industry standards or understanding. Instead, they are based on their personal beliefs as disability access advocates. For these reasons and those discussed above, the Court finds the conclusions of Kirola's experts regarding the neighborhood theory of access to be suspect and lacking in credibility.
b) Accessibility
205. Aside from offering opinions regarding Kirola's neighborhood theory of accessibility, her experts also discussed purported accessibility barriers in relation to the City's Library and RecPark facilities. These experts testified, to varying degrees, that they encountered multiple access barriers at the libraries, pools, parks, and recreation centers which they inspected.
206. Kirola's experts inspected eighteen of the City's twenty-eight libraries, including the Main Library. RT 164:5-165:21, 384:14-385:13, 651:14-653:1; PTX 4148. Margen, Steinfeld and Mastin opined that those libraries had narrow aisles, inadequate turnaround space at the end of aisles, inaccessible restrooms, inaccessible seating, and excessive door pressure. RT 293:5-295:3, 296:6-298:5, 334:8-16, 378:23-379:5, 741:20-743:18 1213:12-22. Margen opined that the City's libraries suffered from accessibility issues that must be addressed in order to make the library system, on the whole, accessible. RT 334:8-16.
207. Kirola's experts inspected seven of the City's nine pools. Three of the pools they inspected, i.e., Garfield, Balboa, and Rossi Pools, are designated as "limited access"—meaning that they are not intended to provide program access. RT 164:4-165:11, 408:11-14, 651:14-652:6, 1312:1-1313:2, 1813:10-23; PTX 4147; PTX 4149; DTX F16. Steinfeld, in particular, claimed to have found numerous access barriers at the pools, including inaccessible paths of travel, inaccessible parking, inadequate signage, missing handrails, inaccessible handrails, heavy doors, drinking fountains lacking inadequate knee clearance, and non-detachable shower heads. RT 657:15-657:24, 664:5-664:24, 670:10-670:19, 672:7-19, 748:22-749:8, 812:19-813:14, 728:20-729:13, 736:8-22, 743:25-744:14, 755:19-756:19, 813:20-814:24, 694:12-19, 728:20- 729:13.
208. With respect to the City's park program, Kirola's experts inspected 13 parks, 7 mini-parks, and 16 playgrounds of the City's network of approximately 220 parks. They also visited multiple sites within Golden Gate Park. RT 164:4-165:21, 651:23-652:6, 1312:17-19; PTX 4149; PTX 4147. Based on their inspections, Kirola's experts identified various access barriers, including an inaccessible entrance ramp at Balboa Park, a cracked sidewalk at Jefferson Square Park, limited accessible paths of travel at Golden Gate Park's Japanese Tea Garden and Rose Garden, inaccessible paths connecting the main facilities at Glen Canyon Park, and placement of flora and fauna signage at Glen Canyon Park too far from accessible trails. RT 670:10-671:12, 712:12-17, 757:5-6, 1316:22-1313:9, 1317:22-1318:8, 1327:5-1330:15-17, 1331:13-23, 1333:8-21
209. Finally, the experts conducted site inspections of thirteen of the City's seventy-three recreation centers and clubhouses. PTX 4147; PTX 4149. Mastin cited access barriers at the recreation centers he inspected, such as inadequate signage, an excessive cross-slope leading to accessible features in a restroom, a broken elevator, and an inaccessible tennis court. RT 1121:8-1124:5, 1141:5-1142:5, 1150:21-1152:4, 1155:20-1158:6, 1158:19-1160:22, 1162:12-1164:15. Mastin concluded that, based on the barriers he observed, four of the eleven recreation centers he inspected were not accessible. RT 1121:11-15, 1141:5-9, 1162:6-10.
210. The Court is unpersuaded by the opinions of Kirola's experts regarding the purported access barriers they encountered at the City's libraries and RecPark facilities.
211. As an initial matter, Kirola's experts routinely applied inconsistent methodologies and inspection protocols. RT 398:12-399:5, 800:17-801:25, 2055:24-2056:7. Two experts, in particular, inappropriately focused on minor construction variations and ignored dimensional tolerances, which resulted in otherwise trivial and insignificant deviations being characterized as access barriers—despite the fact that such deviations were permissible under industry accessibility standards. RT 955:5-10, 1273:4-10, 1342:6-13, 1358:19-1359:3, 2055:24-2057:20, 2065:8-20. For example, at the Kimball Playground, Margen's team used a very short level to measure slopes, notwithstanding Margen's assurance that his team always used a two-foot level. RT 2058:20-25. Use of a short level is problematic because it "gives exaggerated readings because it's so short [that] it picks up minor fluctuations." RT 2059:1-4. Similarly, at St. Mary's Playground, Kirola's inspection team recorded the maximum localized variation as the overall slope of the curb ramp rather than the curb ramp's overall "rise in run" and flatness, which is the appropriate measure of accessibility compliance. RT 2059:9-2061:6.
212. Kirola's experts also repeatedly applied erroneous access requirements. At the time of trial, there were no set standards for parks and playground facilities, though federal guidelines for outdoor facilities had been proposed. RT 2063:19-2064:25. The proposed guidelines recognize that such facilities are located in topographies that vary, and as such, set different and more forgiving slope requirements than compared to those applicable to a building. Id. Yet, Kirola's experts applied the more stringent but inapplicable ADAAG standard to park and playground facilities. Id.
213. With regard to buildings, they inappropriately failed to differentiate between new construction and alteration standards, applying the latest version of the California Building Code as opposed to the version in effect when the structure was built. RT 2046:15-2047:5, 2052:7-2053:20.11 Kirola's experts similarly failed to take into account the existence of conflicts between state and federal law relating to the placement of items such as the location of toilet paper and grab bars and door pressure, requiring the City to decide which standard is more restrictive. RT 2048:16-2049:8. Moreover, no showing was made that these minor variations fell outside accepted construction variances or otherwise rendered the particular facility inaccessible or unusable. RT 2045:6-19.
214. With regard to libraries, Kirola's experts opined that they had narrow aisles and inadequate turnaround space at the end of aisles. RT 293:5-295:3, 296:6-298:5, 334:8-16, 378:23-379:5, 741:20-743:18 1213:12-22. Under both state and federal law, end aisles at library stacks may be 36" wide. RT 2091:15-18. The 48" width requirement cited by Kirola's experts applies only to restricted U-turn areas. RT 2091:13-2093:8, 2094:10-17, 2194:14-2197:11, 2202:7-08; Cal. Bldg. Code § 1133B.6.2; ADAAG 4.3.3; PTX 4153, 20-4. Margen and Mastin also cited excessive door pressures at some of the libraries they inspected. RT 373:5-12, 377:15-378:14, 1272:14-16. However, for safety reasons, many of those doors had a greater opening pressure because fire doors are permitted to have a greater amount of pressure. RT 2098:11-16. Mastin also admitted that door pressures may vary daily due to wind or other factors. RT 1272:14-16.
215. Another flaw in Kirola's experts' analyses is their citation to barriers that, in fact, did not impede meaningful access. RT 2057:21-2058:9, 2081:8-10. The survey prepared by Kirola's experts frequently cited issues such as a door being difficult to open when there was an automatic door opener, thereby obviating the need to manually open the door. RT 2057:24-2058:12. In another instance, the report cited the lack of handrails for stairs when a new elevator system providing full access had been installed. Id. The experts criticized the lack of an ambulatory stall (which can be used by persons with crutches or a walker) in a library bathroom, when, in fact, the City had provided two accessible stalls, providing greater access than required by law. RT 2098:18-2099:13. Steinfeld criticized the Richmond Branch Library as having an inaccessible ramp, despite the fact that there was a second accessible ramp leading to the same front entrance which complies with ADAAG. RT 738:16-18, 755:7-10. Instead of focusing on overall accessibility, Kirola's experts dwelled on minor variations that were no longer required, while overlooking "obvious features of a significant expense" undertaken to make the facility accessible. RT 2058:6-12. These are but a few examples of the flaws that permeate Kirola's experts' testimony.
216. In contrast to the unreliable testimony offered by Plaintiff, the Court is persuaded by Wood's independent findings regarding the City's libraries, pools, and recreation centers that he inspected as part of his work on this case. Wood and his staff reviewed a total of sixty-nine facilities comprised of libraries, pools, recreation centers, and playgrounds. RT 2041:20-25. Wood's team reviewed each alleged barrier listed in the reports prepared by Kirola's experts, inspected each of the sites visited, and categorized Kirola's experts' findings into four categories: (1) "technically correct" and "affects usability"; (2) "technically correct" but with "little or no effect on usability"; (3) "maintenance of accessible feature"; and (4) "misinterpretation or error in use of ADAAG or Code." RT 2038:15-2039:22, 2159:3-22. To ensure the veracity of his team's findings, Wood held daily meetings to discuss methodology and equipment. RT 2039:19-22.
217. With respect to the City's libraries, Wood and his team reviewed each of the libraries evaluated by Kirola's access experts, with the exception of the Visitation Valley Branch Library (which was under construction for accessibility improvements at the time of his evaluations) and the Ocean View Branch Library. RT 2132:23-2134:10. Wood opined that each of the sixteen "blue dot" libraries he visited has the features necessary to facilitate accessibility, including: (1) an accessible route from the entrance to the public sidewalk; (2) an accessible entrance; (3) automatic door openers; (4) elevators within multi-story buildings; (5) access to all library levels; (6) accessible checkout counters; (7) accessible tables; (8) accessible doors along all accessible routes; (9) accessible copy machines; (10) accessible toilet rooms for men and women; (11) accessible drinking fountains; and (12) accessible book stacks. RT 2132:23-2135:19.
218. Wood and his team also visited the three "blue dot" pools evaluated by Kirola's access experts, along with the two additional "blue dot" pools not visited by Kirola's experts (i.e., Sava Pool and North Beach Pool). Of the five pools he evaluated, Wood opined that each has the features necessary to facilitate accessibility, including: (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 where necessary; (6) accessible toilets; (7) accessible showers; (8) accessible locker rooms; and (9) transfer lifts to assist individuals with mobility impairments in getting into and out of the pool. RT 2136:7-2137:5.
219. Wood and his team also reviewed the recreation centers evaluated by Kirola's access experts. Wood opined that each of the newly renovated recreation centers evaluated has all the features necessary to facilitate accessibility, including: (1) an accessible route from the property line to the building; (2) an accessible entry; (3) accessible community rooms; (4) accessible ramps or curb ramps where necessary; (5) accessible elevators within multi-story buildings; (6) an accessible gym with accessible bleacher facilities (with the exception of the Golden Gate Senior Center, which lacked a gym); (7) an accessible weight room in facilities where a weight room was provided; (8) accessible doors; (9) an attendant for special requests; (10) accessible bathrooms for men and women; and (11) accessible drinking fountains. RT 2138:4-2140:12.
220. Based on Wood's thorough analysis of Kirola's experts' findings, combined with his own independent analysis, MOD advised the Library of approximately three or four access barriers that it believed should be addressed, along with a few maintenance issues that it concluded should be attended to as part of its regular facility maintenance. RT 1652:16-1653:4. At the time of trial, the City had made or was in the process of completing the requested repairs. RT 2255:8-2256:6, 2257:17-2258:10.
221. MOD also recommended that RecPark remediate roughly 400 access barriers identified, some of which were minor and could therefore be handled by operations staff, and others of which required funding from the department's capital division. RT 2321:11-2322:22, 1652:16-1653:20. At the time of trial, RecPark had no deadline or schedule for completing the list of barriers received from MOD. RT 2333:23-25, 2334:5-16. RecPark had, however, worked with MOD to prioritize the listed recommendations and was in the process of addressing them. RT 2321:16-2322:22.
222. Wood found that only 1.6 percent of the access barriers cited by Kirola's experts at City libraries and recreation facilities actually needed modification. RT 2038:15-2039:22, 2044:9-2046:12, 1649:10-25, 1625:7-10.
223. The Court finds Wood to be well-qualified and credible, and credits his opinions regarding the existence of the alleged accessibility problems with the City's libraries and RecPark facilities over those of Kirola's experts.
224. The Court is likewise persuaded by Hecker, who provided testimony regarding program access to the City's library program and RecPark programs. As of December 2009, nineteen of the City's libraries were designated as "blue dot" accessible. Hecker opined that the number and distribution of accessible libraries across San Francisco was sufficient to provide program access to the City's library system, considering the City's "compact" size (forty-nine square miles) and effective public transportation and paratransit systems. RT 2763:21-2765:5; DTX I32.
225. Hecker credibly opined that: (1) six of the City's nine swimming pools were designated as "blue dot" accessible, and the number and distribution of accessible pools across San Francisco was sufficient to provide program access to the City's aquatic program, RT 2767:8-2769:17; DTX F16; (2) forty-three of the City's seventy-three recreation centers and clubhouses were designated as "blue dot" accessible, and the number and distribution of accessible recreation centers and clubhouses across San Francisco was sufficient to provide program access to the RecPark programs offered at those locations, RT 2771:3-2772:12; DTX F40; and (3) twenty of the City's forty-five athletic fields were designated as "blue dot" accessible, and the number and distribution of accessible athletic fields across San Francisco was sufficient to provide program access to the City's athletic field program. RT 2769:18-2771:2; DTX F34.
226. In forming his program access opinions, Hecker relied exclusively on the determinations of Scott (i.e., MOD's Deputy Director of Physical Access) as to which facilities offered accessible programs and services, i.e., the "blue dot" designations. RT 2768:4-23. Scott is a licensed architect with more than twenty years of experience working on architectural access issues and 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. Hecker stated that he had a high degree of confidence in the reliability of Scott's designations as a result of Scott's knowledge of accessibility issues and the process employed by the City to ensure the design and construction of accessible City facilities. RT 2762:17-2763:12, 2769:2-15.
227. Furthermore, as of December 2009, 77 of the City's 133 children's playgrounds (58 percent) were designated as "blue dot" accessible, and an additional 15 playgrounds were slated for renovation pursuant to funded RecPark capital projects. RT 1815:9-20; PTX 0148A. As Kirola has made no showing to the contrary, the Court finds the number and distribution of accessible playgrounds to be sufficient to provide program access to the City's network of children's playgrounds. PTX 0148A.
228. Notably, Kirola failed to provide a program access analysis that refutes the conclusion that the City offers program access through its "blue dot" libraries, pools, recreation centers, clubhouses, athletic fields, and playgrounds. Specifically, Kirola has not shown that each of the designated "blue dot" facilities (designations on which Hecker's program access conclusions rely) fails to fulfill the City's program access intent. See, e.g., RT 726:5-727:11, 1344:7-1345:13, 1357:15-15. Kirola's experts instead emphasized that not all of the "blue dot" facilities were 100 percent compliant with disability access regulations. The flaw in that conclusion is that it misapprehends the significance of the "blue dot" designations. Trial testimony establishes that such designation is intended to represent that the site is fulfilling the City's obligations under UPhAS, not that every element of the facility was "completely accessible" pursuant to applicable access regulations. RT 1463:8-1464:23.
11. The City is subject to both federal ADA requirements and California requirements, which generally are set forth in the California Building Code. Though the parties' experts discussed both standards, the parties primarily devote their argument to the City's compliance with ADA.
3. Grievance Procedure
229. On behalf of the City, Hecker credibly opined that the City's grievance procedure is consistent with the requirements of ADA regulations. RT 2727:5-19. In particular, he found significant that the grievance procedure allows members of the public to submit complaints in any manner they wished to communicate and requires the City to issue a response within thirty days. RT 2727:5-19. The Court affords significant weight to his opinion regarding the sufficiency of the City's grievance procedure.
230. The Court is unpersuaded by Margen's opinion that the City's grievance procedure is flawed due to its failure to specify a definitive timeline for resolution of each access complaint received. RT 219:23-220:18. The DOJ's model grievance policy does not mandate a specific deadline for resolving each access complaint. See ADA Best Practices Tool Kit for State and Local Gov'ts, Ch. 2, p. 10-11. The Court therefore affords little weight to Margen's opinion regarding the adequacy of the City's grievance procedure.
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