HomeMy WebLinkAbout08 AMICUS CURIAE 10-07-02AGENDA REPORT NO. 8 10-07-02 MEETING DATE: OCTOBER 7, 2002 455-05 R=5 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: CITY ATTORNEY SUBJECT: NO COST JOINDER IN AMICUS CURIAE BRIEF IN SUPPORT OF THE CITY OF SACRAMENTO'S PETITION FOR A WRIT OF CERTIORARI IN BARDEN V. CITY OF SA CRAMENTO SUMMARY: In Barden v. City of Sacramento, the Ninth Circuit Court of Appeals held that public sidewalks in the City of Sacramento are a City service, program, or activity within the meaning of the Americans with Disabilities Act and therefore, subject to the United States Department of Justice's accessibility regulations. The City of Sacramento will file a petition for a writ of certiorari with the United States Supreme Court asking the Court to review the Ninth Circuit Court of Appeals' decision in Barden. The law firm of Kutak Rock will file an amicus curiae brief in support of the City's petition for a writ of certiorari. RECOMMENDATION: Approve No Cost Joinder in Amicus Curiae Brief in support of the City of Sacramento's Petition For A Writ Of Certiorari. FISCAL IMPACT: None. BACKGROUND: In Barden v. City of Sacramento, various individuals with mobility and/or vision disabilities sued the City of Sacramento ("City") under the Americans with Disabilities Act ("ADA"). The individuals claimed that the City failed to ensure that disabled persons could access the City's existing sidewalks. They argued that the City was obligated to remove barriers, such as benches, signposts, or wires, to sidewalk accessibility. The Ninth Circuit Court of Appeals (that covers California) held that public sidewalks in the City are a City service, program, or activity within the meaning of the ADA and therefore, subject to the United States Department of Justice's accessibility regulations ("Regulations"). Internet The City will file a petition for a writ of certiorari ("Petition") asking the United States Supreme Court ("Court") to review the Ninth Circuit Court of Appeals' decision. The City, the National League of Cities, and the California League of Cities asked the law firm of Kutak Rock to file an amicus curiae brief supporting the City's Petition. Kutak Rock has asked cities to join its amicus curiae brief in support of the City's Petition. In our opinion, the Barden court's ruling ignores the practical considerations of complying with its ruling because there are no existing Regulations in place dealing with sidewalks. Therefore, it is unclear whether the City has to retrofit all sidewalks immediately or whether it can wait until it constructs new facilities or when it adds to or alters existing facilities. Participation in the amicus curiae brief (which is at no cost to the City of Tustin) is warranted to help the Court understand the practical consequences to cities if it affirms the Ninth Circuit Court of Appeals decision. ATTACHMENTS: Memoranda from the City Attorney's Office. Internet 0CT-01-2002 10:23 ~OODRUFF SR~RDL~N SMART LAw OFFICES OF WooDRUFF~ SPRADLIN & SMART A PROFESSIONAl. CORPORATION 714 835 ??8? P.O2/OG DIRECT DIAL: (714) DIRECT FAX; (714) 565-2507 E-MAIL', LEJ{~WSS-LAW.COM TO: FROM: DATE: RE: MEMORANDUM Honorable Mayor and Members of the City Council City of Tustin City Attorney June 28, 2002 Ninth Circuit Court of Appeals Says that Existing Sidewalks Must be Accessible Under the Americans With Disabilities Act Introduction The Ninth Circuit Court of Appeals recently addressed the issue of whether public sidewalks were a city service, program, or activity within the meaning of the Americans with Disabilities Act ("ADA") and therefore, subject to the United States Department of Justice's ("DOJ") accessibility regulations ("Regulations"). (Barden v. City of Sacramento (9~h Cir. June 12, 2002, No. 01-15744) 2002 U.S. App. LEXIS 11276.) The case involved various individuals with mobility and/or vision disabilities who sued the City of Sacramento ("City") under the ADA. The individuals claimed the City failed to ensure that disabled persons could access the City's existing sidewalks. They argued the City was obligated to remove barriers, such as benches, sign posts, or wires, to sidewalk accessibility, (Id, at p. 8512,) The court stated that the Regulations prohibited the City from excluding disabled persons from participating in or denying the benefits of City services, programs, or activities due to the fact that the City's facilities were inaccessible. The court explained that the Regulations required the City to operate its services, programs, and activities so that they were readily accessible and usable by disabled persons. (Id. at pp. 8513- 8514.) The court stated that to determine whether the Regulations applied to public sidewalks, it was not going to decide whether public sidewalks were a service, program, or activity. Instead, the court was required to determine whether maintaining public sidewalks is a normal governmental function. The court explained that maintaining public sidewalks is something the City does; it is a normal governmental function. Thus, the City had' to ensure that sidewalks were accessible to disabled persons in accordance with the ADA. (Id. at pp. 8514-8515.) \153937~1 0CT-01-2002 10:25 714 835 City of Tustin June 28, 2002 Page 2 In support of its conclusion, the court relied on the DOJ's position that the Regulations apply to sidewalks. Although the Regulations do not mention sidewalks, they do mention curb ramps. The court reasoned that curb ramps would not be covered unless sidewalks were also covered. Therefore, the court concluded the ADA's prohibition on discrimination when providing public services applies to the maintenance of public sidewalks. (Id. at pp. 8516-8517.) The City will ask an 11-judge panel from the Ninth Circuit Court of 'Appeals to review the case. If the Ninth circuit refuses, the City will ask the United States Supreme Court to review the case. If either court reviews the case and issues an opinion, that court's decision would render the above decision moot. Background As stated above, the Regulations require cities to Operate their services, programs, and activities so that they am accessible to and functional for disabled persons. (28 C.F.R. § 35.150, subd. (a).) However, cities am not required to take any action if they can demonstrate the action would change the nature of the service, program, or activity. (28 C.F.R. § 35.150, subd. (a)(3).) Moreover, cities are not required to make structural changes in existing facilities where other methods will result in compliance. (28 C.F.R. § 35.150, subd. (b).) Where structural changes in facilities are undertaken to achieve compliance with the ADA, the Regulations require cities to develop a transition plan detailing the steps necessary to achieve compliance with the ADA, including a plan for providing curb ramps where pedestrian walkways cross curbs. (28 C.F.R. § 35.150, subd, (d)(1)-(2).) Newly constructed or altered streets must contain curb ramps or other sloped areas at intersections. (28 C.F.R. § 35.150, subd. (e).) As stated above, the Regulations require cities to install curb ramps or other sloped areas. The City has complied with the Regulations and installed curb ramps. The Regulations do not state existing sidewalks must be retrofitted so that they are accessible. The DOJ never indicated the Regulations required cities to retrofit their sidewalks to make them accessible. !mp!icatiq.n.s for Cities The Barden court concluded that public sidewalks are a city service, program, or activity subject to the Regulations~ accessibility provisions without considering the practical considerations of complying with its ruling. The Access Board ("Board"), an independent federal agency devoted to accessibility for disabled persons, is developing ~15393'Pt 1 0CT-01-2002 10:26 714 835 7787 97Z 0CT-01-2002 10:24 WOODRUFF SPRRDLIN SMRRT 714 835 7707 P.04/06 City of Tustin June 28, 2002 Page 3 new regulations addressing the sidewalk accessibility issue, but they are in draft form, The new regulations will not be finalized for approximately nine (9) months to one (1) year. It is unclear whether the City has to retrofit all sidewalks immediately. Because the Regulations never mention sidewalks, it is not surprising the Regulations do not state when they need to be retrofitted. However, the Board's draft regulations suggest that cities must make sidewalks accessible when they construct new facilities or when they add to or alter existing facilities. In other words, the guidelines would not require alterations to existing public rights of way. The draft guidelines would require a city to make sidewalks accessible when a sidewalk is altered as part of a planned project to improve existing public right-of-waY or when there is new construction. As we receive more information, i.e. further disposition of the case, we will update you on this matter. LOIS E. jEFFRE~ J)'~/ ~ RICHARD W. HELMS cc: William A. Huston, City Manager ~153937\1 0CT-01-2002 10:26 714 835 7?87 97;';, P. 04 0CT-01-2802 10:25 LdOODI~UFF SPI~RDL. IN SF1RI~T /AW OFFICES OF WOODRUFF, SPRADL]N & SMART A pI~OFESBION~.L CORPORATION 714 835 7787 P.05/06 DIRECT DIAL: (7t4) 58a-2807 DIRECT FAX; (714) 565-2507 E-MAIL: LEJI01WSS-LAW.COM TO' FROM: DATE: RE: MEMORANDUM Tim D. Serlet, Director of Public Works/City Engineer City of Tustin City Attorney June 28, 2002 Ninth Circuit Court of Appeals Says that Existing Sidewalks Must be Accessible Under the Americans With Disabilities Act Recently, the Ninth Circuit Court of Appeals held that public sidewalks were a city service, program, or activity within the meaning of the Americans with Disabilities Act ("ADA") and therefore subject to the United States Department of Justice's ("DO J") accessibility regulations ("Regulations"). (Barden v. City of Sacramento (9m Cir. June 12, 2002, No. 01-15744) 2002 U.S. App. LEXIS 11276.) We sent a memorandum to the City Council discussing the opinion and its implications (enclosed). The Barden court stated that public sidewalks were subject to the Regulations. However, the court did not offer any guidance on when or how cities should implement the Regulations. The Regulations are also silent on when and how cities should retrofit public sidewalks. Although the Regulations do not offer any guidance, the Access Board ("Board"), an independent federal agency devoted to accessibility for disabled persons, is developing new .gUidelines addressing the sidewalk accessibility issue. The new guidelines are in draft form and will not be finalized for approximately nine (9) months to one (1) yearl Comments on the draft will be accepted.through October 28, 2002. The Board's draft guidelines suggest that cities must make sidewalks accessible when they construct new facilities or when they add to or alter existing facilities. In other words, the 'guidelines would not require alterations to existing public rights of way. However, the guidelines would apply where a sidewalk is altered as part of a planned project to improve existing public right-of-way or where there is new construction. The Board also drafted an accessibility design guide entitled "Accessible Rights of Way: A Design Guide." You can find both the guidelines and the design guide on the Board's web site. The Board's web Site is: http://www, access-boar, d.clOV. \1541368~I 0CT-01-2802 10:26 714 835 ??87 97~ P.05 City of Tustin June 28, 2002 Page 2 The draft gUidelines can be found at: htt_p :/_/www.access-board..gov/rowd raft. htm The design guide can be found at: http:l/www.access-,b.oard.-qovl_oublicn-tionslPROW%20Guide/PROWGuide'htm#3 2. LOIS E. JEFFRE'~~/~/ 0 RICHARD W. HELMS Enclosure cc: William A. Huston, City Manager 0CT-01-2002 10:26 714 835 7787 97% TOTAL P.06 P.06