U.S. Court of Appeals for the Ninth Circuit affirms ruling on San Francisco's alleged accessibility violations

By Sara McCleary | Jun 30, 2017

SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit has affirmed in part and reversed in part a decision by the U.S. District Court for the Northern District of California concerning San Francisco’s accessibility for those with mobility impairments.

On July 17, 2007, Ivana Kirola filed a class-action complaint against the City and County of San Francisco on behalf of herself and others similarly situated. She alleged that the city had violated Title II of the Americans with Disabilities Act by not making accessible the city’s public right-of-way, pools, libraries, parks and recreation facilities.

The district court ruling in favor of the city, determining that Kirola had only shown a few instances in which the city failed to meet the Americans with Disabilities Act Accessibility Guidelines (ADAAG), based largely on evidence provided by the city’s experts, having deemed Kirola’s experts not credible. 

The appellate court, however, found that the district court’s overall dismissal of Kirola’s experts’ testimony was in error. For example, the district court believed that Kirola’s experts should not have applied ADAAG to San Francisco’s playgrounds, parks and public right-of-way. 

According to the appellate court’s written opinion, penned by Judge Ronald Gould and filed June 22, this was based on a misinterpretation of the relevant statutes, and “the district court therefore erred in its conclusion that Kirola’s experts’ application of ADAAG to those facilities made them less credible. The district court should have made its credibility assessment on the premise that ADAAG applied to those facilities.”

The appeals court found several other legal mistakes in the district court’s criticism of Kirola’s experts. 

“For one thing, it improperly criticized Kirola’s experts because they ‘dwelled on minor variations,’ rather than ‘focusing on overall accessibility,’” reads Gould’s opinion. “The district court also improperly faulted Kirola’s experts for not applying proposed federal standards for ‘outdoor facilities’ to parks and playgrounds.” In both of these cases, the appellate court determined that Kirola’s experts’ conclusions were legally correct.

Because the appeals court determined that “the district court’s credibility determinations were based on legal errors and that its conclusion regarding the scope of ADAAG noncompliance was erroneous” the appellate court remanded the case, ordering that “the district court shall apply ADAAG as we have interpreted it, and reevaluate the extent of ADAAG noncompliance. Once the scope of any ADAAG violations at facilities used by Kirola and all other class members has been determined, the district court shall revisit the question of whether injunctive relief should be granted.”

The district court had also found that Kirola lacked standing. According to Gould’s opinion, “the district court ruled that Kirola’s ‘minimal testimony’ about encountering only a few barriers was insufficient to show ‘that she has been deprived of meaningful access to a challenged service, program or activity in its entirety. For this reason, the district court held that Kirola had not established injury in fact.”

However, Gould charges that “the district court seems to have improperly conflated Kirola’s standing with whether she would prevail on the merits.” 

For Kirola to establish injury in fact, she needs to demonstrate that she “has encountered at least one barrier that interfered with her access to the particular public facility and whether she intends to return or is deterred from returning to that facility,” reads the opinion.

According to the appeals court, “Kirola meets this standard. The barriers she encountered prevented her from benefitting from the same degree of access as a person without a mobility disability and deterred her from future attempts to access the facilities she visited.” Kirola has also demonstrated that her injuries are redressable, says Gould. 

“Through a properly framed injunction, the district court can ensure that the City alters or removes the access barriers Kirola encountered,” the appeals court said in its decision.

The appellate court, however, affirmed the district court’s decision concerning Kirola’s claim that disabled individuals lacked program access to the city’s parks. While confirming that "we sympathize with the frustration of mobility-impaired individuals who may show up to many of San Francisco’s parks and then find themselves shut out,” the court found that “Kirola’s program access claims fail for lack of proof. She did not present evidence sufficient to show that the city’s public right-of-way and RecPark programs, when viewed in their entirety, were not readily accessible to and usable by individuals with disabilities. The district court properly rejected Kirola’s program access claims.”

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