Opinion
07-CV-03685-AMO
08-19-2024
IVANA KIROLA, et al., Plaintiffs, v. CITY & COUNTY OF SAN FRANCISCO, THE, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PHASE II INJUNCTIVE RELIEF RE: DKT. NOS. 825, 843
ARACELI MARTÍNEZ-OLGUÍN UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiffs' motion for permanent injunction. The matter is fully briefed and suitable for decision without oral argument. See CiVil L.R. 7-1(b). This Order assumes familiarity with the case's record. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the Court hereby GRANTS IN PART and DENIES IN PART the motion for the following reasons.
I. BACKGROUND
Pursuant to the Ninth Circuit decision and mandate, Kirola v. City & Cnty. of San Francisco, No. 21-15621, 2023 WL 2851368, at *3 (9th Cir. Apr. 10, 2023), cert. denied sub nom. City & Cnty. of San Francisco, California v. Kirola, 144 S.Ct. 185 (2023) (“Kirola II”), the Court ordered the parties to prepare post-trial briefing regarding the alleged Americans with Disabilities Act Accessibility Guidelines (ADAAG) Violations at the 11 identified faCilities. ECF 814. Plaintiffs moved for injunctive relief, arguing that the evidence at the 2011 trial - based on the testimony of Plaintiffs' expert Jeffrey Mastin - showed violations at each of the 11 facilities. ECF 825. Defendants concede the existence of violations at various facilities, agree to remedy them, and contest the remaining allegations. ECF 829.
“ADAAG” refers to the 1991 ADAAG standards, which are applicable here. Kirola v. City & Cnty. of San Francisco, 860 F.3d 1164, 1178 (9th Cir. 2017) (“Kirola I”).
II. DISCUSSION
Defendants concede the existence of the following violations and agree to remedy them: (1) the step to get into both restrooms at the Botanical Gardens (ECF 829 at 15); (2) the slope inside the gate toward the entrance to the playground at the Bernal Heights Recreation Center (id. at 17); (3) the entrance gate hardware at the Bernal Heights Recreation Center (id. at 18); (4) the uninsulated sink hot water and drain pipes at the Bernal Heights Recreation Center (id.); (5) the lack of accessible signage at the Woh Hei Yuen Recreation Center (id. at 21); and (6) the toilet stall door latch at the Martin Luther King Swimming Pool (id. at 23). Accordingly, the Court GRANTS injunctive relief to these violations as unopposed.
The Court next turns to the alleged violations at the Minnie and Lovie Ward Recreation Center (“Ward Recreation Center”). Though Defendants seemingly agree to an injunction, they condition that agreement on a finding that the alleged violations were remedied as part of a 2013 renovation. ECF 829 at 15-16. In support of their position, Defendants ask the Court to take judicial notice of a San Francisco Recreation & Parks webpage announcing that renovations had been completed. Id. at 16 n.1. The Ninth Circuit mandate did not require the Court to consider evidence outside of the trial record, see Kirola II, 2023 WL 2851368, at *1-3, and for the purposes of this motion, the Court only considers evidence presented at the 2011 trial. See ECF 842 at 1014. Thus, it will not consider post-trial renovations to the recreation center. The Court therefore DENIES the request for judicial notice of the website. Defendants also move to file a sur-reply to object to evidence outside of the trial record that Plaintiffs include in their reply regarding recent site inspections at the Botanical Gardens, the Bernal Heights Recreation Center, and the Minnie and Lovie Ward Recreation Center. ECF 843 (citing ECF 837, 837-2). Because the Court does not consider evidence outside the trial submitted by Defendants or Plaintiffs, the Court DENIES that motion as moot.
Moreover, the webpage is not a proper subject of judicial notice as its contents are subject to dispute. See Fed.R.Evid. 201(b) (courts may take judicial notice of facts that are “not subject to reasonable dispute”). Indeed, Plaintiffs contend that Defendants do not provide any evidentiary support that the identified conditions at the Center have been remedied. ECF 837 at 7-8.
To prove up the alleged ADAAG violations at the Ward Recreation Center, Plaintiffs point to trial evidence concerning inaccessible ramps, routes, and paths, and a lack of accessible signage. The ramps at the Ward Recreation Center have excessive running slopes and cross slopes, and non-compliant handrails. Wallace Decl. (ECF 826), Ex. F at 1165. The East entrance ramp has a cross slope of 3% in violation of ADAAG §§ 4.3.7 and 4.8.6, excessive running slopes of up to 9.8%, in violation of ADAAG § 4.8.2, and the bottom section of the ramp has a 6.33% running slope without handrails in violation of ADAAG § 4.8.5. Id., Ex. T. Second, the routes to the ball fields are not accessible because one route is a chained off dirt path that is too narrow to navigate, in violation of ADAAG §§ 4.13.5, 4.13.6, 4.3.6, and 4.5.1. Wallace Decl., Ex, F at 1163-64; Ex. S. The alternative route has a 9.8% cross-slope, which is nearly five times greater than permissible under ADAAG § 4.3.7, and “slopes towards [] a dropoff and a grate,” so there is a risk of injury “if you lose control.” Id. at 1168-69; Ex. V. The pathways are also covered in mud due to a flawed design where the drainage runs across the path, in violation of ADAAG §§ 4.3.6 and 4.5.1, and the planting on the path is overgrown, restricting the available width, in violation of ADAAG § 4.4.1. Id. Third, the path to the tennis courts consists of dirt, in violation of ADAAG §§ 4.3.6 and A4.5.1. Wallace Decl., Ex. F at 1166-67; Ex. U. Fourth, there is a lack of accessible signage in violation of ADAAG § 4.1.3(8)(d). Wallace Decl., Ex. F at 1162-63. Defendants respond only that the “trial testimony and evidence presented by Plaintiffs fails to adequately specify the purported violations.” ECF 829 at 15-16. The Court disagrees and finds that Plaintiffs have sufficiently evidenced ADAAG violations at the Ward Recreation Center. Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013). The Court therefore GRANTS injunctive relief as to the Minnie and Lovie Ward Recreation Center.
Defendants similarly dispute whether the trial evidence is sufficiently specific to establish ADAAG violations at the remaining facilities. The ADAAG standards are “as precise as they are thorough, and the difference between compliance and noncompliance with the standard of full and equal enjoyment established by the ADA is often a matter of inches.” Kirola I, 860 F.3d at1178 (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945-46 (9th Cir. 2011)). To prevail on an ADA claim, a plaintiff need “not prove up a precise measurement.” Strong, 724 F.3d at 1046; see also Kirola II, 2023 WL 2851368, at *3 (“it is well established that neither expert testimony nor precise measures are required to prove an ADAAG violation”). However, a plaintiff who “proffer[s] evidence of precise measurements” “no doubt present[s] a more powerful case at trial.” Strong, 724 F.3d at 1045.
At trial, Plaintiffs' expert testified about the accessibility barriers at the 11 identified facilities. As detailed in the chart below, Plaintiffs presented sufficient evidence of ADAAG violations at various facilities, including routes that are inaccessible due to greater than permissible running slopes, lavatory stalls that are too narrow for a wheelchair to enter, mounted bathroom hardware that is higher than permitted under the ADAAG, restroom doors requiring greater force than permitted by ADAAG regulations, and playground structures that are built on inaccessible materials. Defendants contend that Plaintiffs' evidence was not specific enough to show ADAAG violations. For example, Defendants take issue with Plaintiffs' expert testifying (1) “I think” there were 22 play components but only two structures were accessible (Baruth Decl., Ex. 1 at 1121-22); (2) thresholds that may not be more than half an inch were “about an inch high” (Wallace Decl., Ex. F at 1139-40); (3) mounted hardware was above 54 inches without specifying an exact measurement (id. at 1157); and (4) “I believe” restroom doors required “7 or 8” pounds of force, when no more than five pounds is permitted (id. at 1141). Defendants, however, point to no caselaw that the expert was required to provide exact measurements or that his opinions were insufficient. Indeed, the Ninth Circuit has clarified that precise measurements are not required to prove an ADAAG claim. See Strong, 724 F.3d at 1046. The Court therefore finds Defendants' arguments unpersuasive. Moreover, with very limited exception, Defendants point to no trial evidence contradicting Plaintiffs' expert testimony. In fact, the only places where defense experts countered Plaintiffs' expert testimony were vague statements without foundation that the facilities were “accessible.” See Baruth Decl., Ex. 1 at 2117, 2101.
Defendants also insist that the testimony was too vague to prove violations at certain facilities. See Wallace Decl., Ex. F at 1157 (the boys' bathroom has “sloping floors”); id. at 1141 (“I think the chief barriers were a problem with signage”); id. at 1170-71 (the expert found “similar barriers” at other recreation centers and found that they “[n]one of [them] . . . were accessible”). This evidence is indeed too vague for the Court conclude that these barriers constituted ADAAG violations.
The Court organizes the alleged violations and the evidence presented regarding each violation in the chart below for the ease of viewing the evidence presented at each facility:
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
high. Wallace Decl., Ex. F at 1178, 1182-83.
Botanical Gardens
Inaccessible women's restrooms
The women's restroom stalls “are much too narrow to allow entrance by a person using a wheelchair” and the paper towel dispenser was “too high” in both restrooms. Id. at 1181-83.
The bathroom “facility itself was accessible” and had “accessible stalls, accessible lavatories, accessible doors.” Baruth Decl., Ex. 1 at 2117.
ADAAG violation. Plaintiffs' expert's testimony that the stalls were too narrow for a wheelchair user and the paper towel dispensers were too high is sufficient to establish an ADAAG violation. See Strong, 724 F.3d at 1046 (“witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely”).
Bernal Heights Recreation Center
Playground surface consists of sand
“The playground itself is on sand. I think there were 22 play components involved with that play structure, but there are only - of 7
None.
ADAAG Violation. The Court rejects Defendants' arguments that it is not specific enough for Plaintiffs' expert to say that he
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
different types, meaning swinging, climbing, et cetera, but there were only 2 that are actually accessible. . . . I think there were three or four structures . . . [a]nd they're all located on sand except there's [] access to two swings[.]” Wallace Decl., Ex. F at 1121-22.
“thinks” that only two components are accessible and does not state what percentage of the playground is located on sand, ECF 829 at 16-17.
Bernal Heights Recreation Center
Inaccessible restrooms: high entrance doorway thresholds
Thresholds are “about an inch high, and they should be no more than a half-inch high.” Wallace Decl., Ex. F at 1139-40.
None.
ADAAG Violation. The Court rejects Defendants' argument that Plaintiffs' experts' approximate measurement is too vague. See Strong, 724 F.3d at 1046.
Bernal Heights Recreation Center
Inaccessible restrooms: clearances too narrow in designated accessible toilet stalls
“The clearances in the accessible stalls, it's too narrow. But I couldn't see any reason why it shouldn't be the correct width.” Wallace Decl., Ex. F at 1140.
None.
ADAAG Violation. The Court rejects Defendants' argument that Plaintiffs needed to provide exact measurements. See Strong, 724 F.3d at 1046.
Tenderloin Recreation Center
Inaccessible boys' and girls' first floor restrooms
The floor of the girls' restroom has a cross-slope of 2.7% to 4.8%, which is above the 2% cross slope permitted by ADAAG § 4.3.7. Wallace Decl., Ex F at 1151-52.
None.
ADAAG violation as to the girls' bathroom accessibility and as to the mounted hardware in both bathrooms. The Court rejects Defendants' arguments that Plaintiffs needed to specify the height of
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
The mounted hardware was above 54 inches in both bathrooms, which is higher than permissible under ADAAG § 4.13.9. Id. at 1157. The boys' bathroom has “sloping floors.” Id.
the mounted hardware, ECF 829 at 20. See Strong, 724 F.3d at 1046. The Court also rejects Defendants' argument that Plaintiffs' expert does not identify how he made measurements, ECF 829 at 19. However, there is insufficient evidence as to whether the sloping in the boys' bathroom constitutes an ADAAG violation.
Tenderloin Recreation Center
Inaccessible second floor men's and women's restrooms
The women's restroom was “completely inaccessible” because “a person in a wheelchair . . . would be unable to . . . open that door to leave the restroom, because it's - the clear space in order to do that is obstructed by the lavatory and the [] built-in wall waste receptacle.” Wallace Decl., Ex F at 1155-56; see ADAAG §§ 4.13.5, 4.13.6, 4.17.5. The men's room was also
None.
ADAAG Violation. Strong does not require an exact measurement, which is the only ground Defendants raise in opposition, ECF 829 at 20. See 724 F.3d at 1046.
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
“inaccessible, again dealing [] mainly with clearances.” Id. at 1158.
Tenderloin Recreation Center
Non-functional elevator
“The elevator is not functioning. And the staff mentioned that it has never really functioned in the time that this is constructed since - I'm assuming since 1992 when I believe there was a renovation.” Wallace Decl., Ex F at 1156; see ADAAG § 4.3.8 (requiring ramp, elevator, or platform lift).
The City's expert concluded that “what we found [at the Tenderloin Recreation Center] is accessible routes, accessible entrances, toilets.” Baruth Decl., Ex. 1 at 2101.
ADAAG Violation. Defendants' argument that it is speculation that the elevator has not worked since 1992, ECF 829 at 20, does not dictate a different outcome.
Who Hei Yuen Recreation Center
Inaccessible restrooms
The bathrooms are likely to trap users because there is no way to enter and close the door. Wallace Decl., Ex F at 1159; see ECF 826-18, Ex R (“This door is completely unusable to the majority of wheelchair users; further it is likely to trap a user who attempts to maneuver into a transfer position to the WC.”) In “[a]n accessible
None.
ADAAG violation. Defendants' argument about the need for specific measurements is not well-taken. See Strong, 724 F.3d at 1046.
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
stall, one of the requirements is that you can . . . actually enter it, then close the door based on a wheelchair-sized area, which is 30 inches by 48. In this case, [in] both the men's and the women's, there's no way to actually get in there and close the door. It was not actually physically possible using that area.” Id. at 1158-59.
Upper Noe Recreation Center
Inaccessible restrooms
The restroom doors cannot require more than five pounds of force to open and Mastin stated, “I believe they were 7 or 8 [pounds].” Wallace Decl., Ex F at 1141; see ADAAG § 4.13.11(2)(b). The restroom doors close twice as fast as they should. Wallace Decl., Ex F at 1142; see ADAAG § 4.13.10.
Plaintiffs' expert stated that door pressure can vary within a range, suggesting that the pressure may sometimes comply with the ADAAG. Baruth Decl., Ex. 1 at 1272.
ADAAG Violation. Strong does not require an exact measurement. See 724 F.3d at 1046.
Upper Noe Recreation Center
Lack of accessible signage
“I think the chief barriers were a problem with signage.” Wallace Decl., Ex. F at 1141.
The expert does not identify what signage is missing or whether or how existing signage is non-compliant
No violation. The Court cannot determine what issues exist with signage, and thus cannot issue a remedy.
Facility
Alleged Violation
Plaintiffs' Evidence
Defendants' Evidence
Finding
with the ADAAG. ECF 829 at 23.
Eureka Valley, Gene Friend, Joseph Lee, and Richmond Recreation Centers
ADAAG violations similar to those above, including a lack of compliant restrooms, entrances, and accessible signage.
“I did find similar barriers [to the other recreation centers]” and “[n]one of the ten [other recreation centers] that I inspected were accessible.” Wallace Decl., Ex. F at 1170-71.
None.
There is insufficient evidence for the Court to find any violation, much less order a remedy.
Defendants rely on the district court's 2014 ruling criticizing Mr. Mastin's slope measurements. ECF 829 at 14 (citing Kirola v. City & Cnty. of San Francisco, 74 F.Supp.3d 1187, 1223 (N.D. Cal. 2014), aff'd in part, rev'd in part, 860 F.3d 1164 (9th Cir. 2017)). However, the Ninth Circuit subsequently held that Plaintiffs' experts' approach complied with the DOJ approach in the ADA Best Practices Tool Kit and that Plaintiffs' experts applied the proper method for measuring slopes. Kirola I, 860 F.3d at 1181-82 (“[B]ecause it is the steepest point on the ramp that affects whether a wheelchair user can navigate the ramp, it is the maximum localized variation, used by Kirola's experts, rather than the average slope, used by the City's experts, that is the correct benchmark.”). Defendants also note that the district court criticized Plaintiffs' experts use of the use of a short level in their measurements, but this criticism referred to measurements made by a different expert for a different facility. ECF 829 at 14 (citing Kirola, 74 F.Supp.3d at 1223).
Defendants also argue that Plaintiffs failed to prove that the cost to remediate the bathrooms was not disproportionate to the costs of the pathway alterations project. ECF 829 at 14 (citing 28 C.F.R. § 36.403). However, 28 C.F.R. § 36.403 is in Title III of the ADA, and applies to the private sector, not the City, which is covered by Title II of the ADA. The current Title II regulations contain a similar provision, 28 C.F.R. § 35.151(b)(4), but that regulation did not become effective until March 2011, making it inapplicable to the Botanic Gardens Project, which commenced in 2008. See Wallace Decl., Ex. F at 1175-76. Moreover, even if this limitation applied, it is Defendants' burden to prove disproportionate cost, and they have not offered any evidence. See N.L.R.B. v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (citation omitted) (there is a “general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits”); Lemmons v. Ace Hardware Corp., 2014 WL 3107842, at *9 (N.D. Cal. July 3, 2014).
Defendants also point to trial evidence that is not relevant to this violation. See Baruth Decl., Ex. 1 at 2115-16 (“A vast percentage of the site has been made accessible. It's only as you get in the back and there's some natural terrain topography issues that are very steep that are very, very difficult to get into because of the natural terrain.”).
The Ninth Circuit sustained the district court's criticism of a different expert's failure to consider dimensional tolerances. Kirola I, 860 F.3d at 1182; see supra n.3. Further Defendants argue that Plaintiffs' expert did not show where the accessible toilet is in the restroom or where the 2.7% cross slope exists in comparison to the 4.8% slope. ECF 829 at 19. However, as a cross slope greater than 2% violates ADAAG § 4.3.7, the Court does not consider this argument persuasive.
While the Court agrees that there is insufficient evidence that the elevator has not functioned since 1992, Defendants do not point to any authority showing that Plaintiffs must prove that the elevator has never functioned.
See ADAAG § 4.13.6.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion for injunctive relief. Because the Court does not consider evidence outside of the trial record, it DENIES AS MOOT Defendants' administrative motion to file a sur-reply. The Court ORDERS the parties to meet and confer and file a proposed injunction consistent with this Order by September 18, 2024, which should include a timeline for Defendants to remedy the violations. In light of the violations that the Court has found, the Court also orders the parties to provide additional briefing on the need for broader injunctive relief (“Phase III”). By September 4, 2024, the parties shall submit a stipulation proposing a briefing schedule and page limit for briefs regarding whether further injunctive relief is appropriate and its scope.
IT IS SO ORDERED.