# The Americans with Disabilities Act requires local governments to provide accessible



## mark handler (Sep 9, 2014)

Monday, September 8, 2014

Page 1

ADA Mandates Accessible Parking—Ninth Circuit

By a MetNews Staff Writer

The Americans with Disabilities Act requires local governments to provide accessible on-street parking in the absence of regulatory design specifications for on-street parking facilities, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court affirmed, on interlocutory appeal, U.S. District Judge Dean Pregerson’s denial of the City of Lomita’s motion to dismiss. Pregerson ruled that “the broad language of the

ADA requires public entities to ensure that all services, including on-street parking, are reasonably accessible to and usable by individuals with disabilities.”

The city had asked the court to dismiss the action by Robin Fortuyne, who alleged that he was a paraplegic and that his right to disability accommodation was violated because the city lacked on-street parking accessible to the disabled. The city had argued that the cause of action was not viable because the government has not adopted standards for disabled access on-street parking.

Judge Richard Paez, writing for the Ninth Circuit, explained:

“Recognizing the broad reach of the ADA, we have held that Title II requires public entities to maintain accessible public sidewalks, notwithstanding the fact that no implementing regulations specifically addressed sidewalks.

He cited Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), where the court cited an earlier case in holding that local governments must maintain accessible sidewalks because “maintaining public sidewalks is a normal function of a city and ‘without a doubt something that the City does.’”

In this case, as in Barden, Paez wrote, the city is required to comply with the ADA mandate regardless of whether there are implementing regulations.

Besides, the judge wrote, there are ADA regulations addressing the issue.

“Two regulations in particular apply to public onstreet parking,” Paez explained, beginning with 28 C.F.R. § 35.150, which applies to all existing facilities.

The regulation requires that a public entity “operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”

Paez reasoned that “*ecause the provision of public on-street parking is a ‘service, program, or activity,’ 28 C.F.R. § 35.150(a) applies to it.”*

*The regulation is somewhat flexible, because a city need not “make structural changes to all existing onstreet parking facilities if [it] can make public on-street parking accessible by other means, such as by providing accessible on-street parking at other nearby sites,” he said. “But, at bottom, the regulation mandates program accessibility for all normal governmental functions, including the provision of on-street public parking.”*

*The other regulation, 28 C.F.R. §35.151, governs only facilities that were constructed or modified after the ADA’s 1992 effective date, and requires that such facilities be “readily accessible to and usable by individuals with disabilities.” *

*Paez wrote:*

*“By its terms, then, this regulation extends to newly constructed or altered on-street parking facilities. The City seeks to avoid this conclusion by pointing out that the technical specifications governing newly constructed or altered facilities are silent with respect to on-street parking. In addition to the general mandate of accessibility set forth in subsections (a)(1) and (b)(1), 28 C.F.R. § 35.151 also requires that newly constructed or altered facilities meet the technical standards set forth in the Uniform Federal Accessibility Standards…the 1991 Standards for Accessible Design…or the 2010 Standards for Accessible Design.”*

*While those standards do not address on-street parking, the judge wrote, “nothing in 28*

*C.F.R. § 35.151 suggests that when technical specifications do not exist for a particular type of facility, public entities have no accessibility obligations,” and such an interpretation could not be reconciled with the regulation’s requirement “that ‘each’ newly constructed or altered facility be readily accessible.”*

*The case is Fortyune v. City of Lomita, 12-56280.*

*Copyright 2014, Metropolitan News Company*


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## ADAguy (Sep 12, 2014)

Much appreciated


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## steveray (Sep 12, 2014)

Sent this to my town planner and engineer and they almost fell over......


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## mark handler (Sep 17, 2014)

Ninth Circuit: Cities Must Have On-Street Disabled Parking

POSTED BY : BBK LAWSEPTEMBER 16, 2014IN LOCAL GOVERNMENT

Cities Have an Obligation Under the ADA

http://www.publicceo.com/2014/09/ninth-circuit-cities-must-have-on-street-disabled-parking/

Editor’s note: the following is a legal alert from BBK Law.

The Ninth Circuit recently ruled that cities have an obligation under the Americans with Disabilities Act to provide on-street parking that is accessible to people with disabilities. In Fortyune v. City of Lomita, the plaintiff filed suit against the City alleging that none of the City’s on-street parking is accessible. The City moved to dismiss the suit because the federal standards for design of ADA-compliant facilities do not contain any requirements related to on-street parking. The Ninth Circuit found that, despite the lack of accessibility standards, on-street parking is a “normal function” of a city and therefore must be made accessible.

Fortyune is the first case to impose a duty under the ADA where there are no technical specifications for the particular facility involved. To assist public agencies in complying with the ADA, the U.S. Department of Justice has adopted standards that set forth technical requirements for public facilities. For example, the standards require parking lots to have certain minimum numbers of handicapped parking spaces. A city that operates a parking lot is able to ensure compliance with the ADA by following these standards. But the Department of Justice has never established standards for on-street parking.

Now, in light of Fortyune, cities must provide accessible on-street parking despite the absence of technical standards. The Ninth Circuit’s opinion provides little help in how to comply with this requirement. The opinion does not address whether any particular conditions violate the ADA. The questions left open by Fortyune are numerous, but there are two key issues that cities should immediately consider. First, does the city provide a sufficient amount of accessible on-street parking spaces? Second, must the city provide accessible parallel parking spaces? Because the opinion gives little guidance, it is not clear how these issues should be addressed.

The Department of Justice is expected to eventually adopt accessibility standards for public rights-of-way, which should answer the questions related to on-street parking. The Access Board, the federal agency charged with developing accessibility guidelines for the Department of Justice, has already drafted proposed guidelines (availablehere), which include technical requirements for street parking. The Access Board has yet to complete a final version of these guidelines, and until it does, the Department of Justice cannot adopt final standards. In the meantime, cities must nonetheless provide accessible on-street parking even though there are no official standards as to detail how this must be accomplished.

If you have any questions about this case or how it may impact your agency, please contact one of the attorney authors of this legal alert listed at right in the firm’s Municipal Law practice group, or your BB&K attorney.


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## Paul Sweet (Sep 17, 2014)

Proposed Guidelines for Pedestrian Facilities in the Public Right-of-Way (published in the Federal Register on July 26, 2011).

http://www.access-board.gov/guidelines-and-standards/streets-sidewalks/public-rights-of-way/proposed-rights-of-way-guidelines


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## ADAguy (Sep 18, 2014)

MH, your value as a neutral resource increases every day, for this I thank you and give you a big "shoutout".


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## mark handler (Oct 5, 2014)

Lomita appeals disabled parking ruling

By Nick Green, Daily Breeze

POSTED: 10/04/14,

http://www.dailybulletin.com/government-and-politics/20141004/lomita-appeals-disabled-parking-ruling/1

The city of Lomita has appealed a “groundbreaking” federal court decision that requires cities to provide on-street parking for the disabled, but offers no guidance on the number or size of the parking spaces.

The U.S. District Court ruling affects thousands of cities in the Ninth Circuit, which covers the western United States, Alaska, Hawaii and Guam, and could result in more litigation until those standards are spelled out.

“How would we ever know when we’ve complied?” asked City Attorney Christi Hogin. “This same issue will be litigated and relitigated for a while, but we seem to be in front of the pack in terms of getting a court decision.”

Lomita appealed the ruling last week in the case of Fortyune v. Lomita, asking for an unusual en banc review by a panel of 11 judges, which is customarily granted in cases of “exceptional importance.”

The plaintiff, paraplegic Robin Fortyune, has been involved in many court cases filed under the Americans With Disabilities Act.

Lomita had argued that without technical regulations targeting on-street parking, it was not required to provide them.

Judges disagreed and concluded in a 15-page opinion that “public entities must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the Department of Justice has adopted technical specifications for the particular types of facilities involved.”

But the opinion provides no guidance whatsoever, Lomita’s lawyers argued in their appeal, and is a recipe for disaster for local governments and taxpayers who foot the bills.

“Without any regulatory design specifications to follow and without any guidance by the panel on how to ensure on-street parking is accessible, the panel decision places local government entities in the untenable position of guessing at what might constitute accessible parking and will accordingly unnecessarily expose local government entities to potential ADA liability no matter what is done,” Lomita’s lawyers said in its appeal.

Not only will there be lawsuits over situations where no on-street parking exists, they said, but others are likely “against government entities trying to comply with the panel decision by providing some form of on-street parking.”

Litigation over the ADA has already proved to be a lucrative area for so-called serial or professional plaintiffs and led to what some say are abuses of the judicial system.

Indeed, neighboring Torrance is wrestling with two federal lawsuits filed earlier this year by disabled residents seeking on-street parking in Old Torrance and near Torrance beach.

The law firm representing the plaintiff said the ruling could have wider implications for the handicapped.

“This seemingly simple ruling has the potential to go much further in its application, promising to increase access to everything from civic buildings to community parks to downtown shopping areas for tens of thousands of persons with disabilities nationwide,” wrote attorney Mark Potter.

“Under (the) ruling, governmental entities must apply existing access standards to all programs and facilities that they provide to the public, regardless of whether there are any express or explicit standards.”


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## MASSDRIVER (Oct 5, 2014)

Since there are no guidelines, just declare all parking spaces accessible.

Play their stupid game.

Brent.


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## Frank (Oct 6, 2014)

MASSDRIVER said:
			
		

> Since there are no guidelines, just declare all parking spaces accessible. Play their stupid game.
> 
> Brent.


The problem is they want reserved street spaces.  Next will apply the 2% maximum slope that will play the devil with drainage.  And next an 8 ft access aisle on the passenger side.


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## conarb (Oct 6, 2014)

Frank said:
			
		

> The problem is they want reserved street spaces.  Next will apply the 2% maximum slope that will play the devil with drainage.  And next an 8 ft access aisle on the passenger side.


Can't do that, it would interfere with the bicycle lanes, bicycle activists are more powerful than disability activists.


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## Msradell (Oct 6, 2014)

conarb said:
			
		

> Can't do that, it would interfere with the bicycle lanes, bicycle activists are more powerful than disability activists.


Actually, those with disabilities have federal laws on their side, bicyclists don't!


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## Paul Sweet (Oct 6, 2014)

They could just eliminate all on-street parking.


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## conarb (Oct 6, 2014)

Paul Sweet said:
			
		

> They could just eliminate all on-street parking.


According to Bush 1's New World Order we are eliminating cars anyway, everybody will ride trains, we have eliminated most seats in the trains now to make way for the disabled, *look at the pictures of the interiors of the  new trains*, they even eliminated some rail supports to make more room for the disabled.

In Bush's New World Order all will be equal, the black and the white, the dumb and the smart, the poor and the rich, and don't forget the abled and the disabled,





 where he talks about the glory of being ruled by the United Nations.  Aren't things going to be just grand in utopia?


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## tmurray (Oct 7, 2014)

Frank said:
			
		

> The problem is they want reserved street spaces.  Next will apply the 2% maximum slope that will play the devil with drainage.  And next an 8 ft access aisle on the passenger side.


You place your spaces based on the maximum slope already being met. We do this already in Canada and there never seems to be an issue with drainage. Generally the spaces are longer than standard spaces to accommodate rear access vans.


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## MASSDRIVER (Oct 7, 2014)

conarb said:
			
		

> According to Bush 1's New World Order we are eliminating cars anyway, everybody will ride trains, we have eliminated most seats in the trains now to make way for the disabled, *look at the pictures of the interiors of the  new trains*, they even eliminated some rail supports to make more room for the disabled.In Bush's New World Order all will be equal, the black and the white, the dumb and the smart, the poor and the rich, and don't forget the abled and the disabled,


Conarb, those words make people uncomfortable. Especially if they have liberal or socialist leanings.

Try "danged ol gubmint up in our a55 won't leave nothin alone. "

Even ADAGUY can understand that.

Brent.


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## ADAguy (Oct 7, 2014)

Duth thou "mock me?"


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## conarb (Oct 7, 2014)

MASSDRIVER said:
			
		

> Conarb, those words make people uncomfortable. Especially if they have liberal or socialist leanings. Try "danged ol gubmint up in our a55 won't leave nothin alone. "
> 
> Even ADAGUY can understand that.
> 
> Brent.


Brent:

Bush the First signed both the ADA and the United Nations Agenda 21, I linked an excerpt from his speech extolling the New World Order, we have Agenda 21 in full play here now known as One Bay Area, or Plan Bay Area, the Federal Government gives local jurisdictions money to conform, 80% of all housing has to conform, why do you think that it takes an average of 7 years to get a permit for building something that is not part of the New World Order?  BTW, the public school system is charged with indoctrinating kids so they actually want to live in our new Soviet style barracks wherein they live with no cars, apparently cars give people too much freedom. What's amazing to me is the total space in the trains devoted to the gimps, most everyone else is going to have to stand in these trains as they lurch from stop to stop, and why do you think they are pushing these trains to nowhere that nobody wants?



			
				Plan Bay Area said:
			
		

> Plan Bay Area provides a strategy for meeting 80 percent of the region’s  future housing needs in Priority Development Areas (PDAs). These are  neighborhoods within walking distance of frequent transit service,  offering a wide variety of housing options, and featuring amenities such  as grocery stores, community centers, and restaurants. Identified by  cities and towns across the region, the PDAs range from regional centers  like downtown San Jose to suburban centers like Walnut Creek’s West  Downtown area, and smaller town centers such as the Suisun City  Waterfront. The Plan funds mixed-income housing production and  locally-led planning in PDAs.Also on July 18, 2013, the two agencies adopted the final Environmental  Impact Report on Plan Bay Area, and the ABAG Executive Board separately  approved a state-mandated Regional Housing Needs Allocation for 2014  through 2022. MTC separately approved the 2013 Transportation  Improvement Program (TIP), which updates the list of Bay Area projects  that receive federal funds, are subject to federal action, or are  considered regionally significant; as well as a final Air Quality  Conformity Analysis that establishes both the TIP and Plan Bay Area  comply with federal air pollution standards.¹


This is all to be funded by carbon taxation, redistributing wealth worldwide to end income inequality through the United Nations International Panel on Climate Change, but at least we in the Bay Area will continue to exist for human habitation, the United Nations also has a Biodiversity agenda removing human habitation from half the surface of the earth for wildlife, almost entire states like Montana will be depopulated.  *Look at the map to see if your area is going to be depopulated by the end of the century*, since most everybody can identify with the possibility that he, or a loved one, may end up with some kind of disability at some point in his life, they are slamming us with this disability stuff as the tip of the iceberg.

¹ http://onebayarea.org/plan-bay-area.html


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## MASSDRIVER (Oct 7, 2014)

ADAguy said:
			
		

> Duth thou "mock me?"


Of course. I know there's some Okie in there somewhere.  

Brent.


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## MASSDRIVER (Oct 7, 2014)

conarb said:
			
		

> Brent:Bush the First signed both the ADA and the United Nations Agenda 21, I linked an excerpt from his speech extolling the New World Order, we have Agenda 21 in full play here now known as One Bay Area, or Plan Bay Area, the Federal Government gives local jurisdictions money to conform, 80% of all housing has to conform, why do you think that it takes an average of 7 years to get a permit for building something that is not part of the New World Order?  BTW, the public school system is charged with indoctrinating kids so they actually want to live in our new Soviet style barracks wherein they live with no cars, apparently cars give people too much freedom. What's amazing to me is the total space in the trains devoted to the gimps, most everyone else is going to have to stand in these trains as they lurch from stop to stop, and why do you think they are pushing these trains to nowhere that nobody wants?
> 
> This is all to be funded by carbon taxation, redistributing wealth worldwide to end income inequality through the United Nations International Panel on Climate Change, but at least we in the Bay Area will continue to exist for human habitation, the United Nations also has a Biodiversity agenda removing human habitation from half the surface of the earth for wildlife, almost entire states like Montana will be depopulated.  *Look at the map to see if your area is going to be depopulated by the end of the century*, since most everybody can identify with the possibility that he, or a loved one, may end up with some kind of disability at some point in his life, they are slamming us with this disability stuff as the tip of the iceberg.
> 
> ¹ http://onebayarea.org/plan-bay-area.html


Don't get me wrong. I agree.

It's insidious.

But we know strait language can in some context be uncomfortable for some.

Anytime words such as "totalitarianism, revolution, taxation, imposition, wealth distribution", et al are used, people have a hard time looking at the context for the meaning. I myself enjoy using and hearing the appropriate wordage, even though it may be connotative  of perceived extremism.

My personal view is that we are being over-run by the administrative processes, which seem to grow exponentially. It gives regulative agencies far too much power and over-reach, with very little due process. What due process is available is prohibitively expensive for the general populace, which means the smaller you are, the more vulnerable you are to regulatory militants.

Large concerns embrace regulation (despite what most people think) because of vast resources and the ability to withstand regulatory onslaught. It is one of the reasons the middle class and true small business is in danger, real danger, of becoming extinct.

The ADA, air quality boards, and state management in particular are the worst offenders.

Brent.


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## ADAguy (Oct 7, 2014)

Man walks into a bar and sees you for the first time,

Does he walk up to you and say; "I'm an Okie from Muskogee"?

No, he asks if the hog I just knocked over "by accident" is yours. (Being from Muskogee he doesn't know any better (smiling))

Your cover photo masks a very deep intellect (similar to a gentleman named Ed who used to be on these sites) beneath all that furr.


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## MASSDRIVER (Oct 7, 2014)

ADAguy said:
			
		

> Man walks into a bar and sees you for the first time,Does he walk up to you and say; "I'm an Okie from Muskogee"?
> 
> No, he asks if the hog I just knocked over "by accident" is yours. (Being from Muskogee he doesn't know any better (smiling))
> 
> Your cover photo masks a very deep intellect (similar to a gentleman named Ed who used to be on these sites) beneath all that furr.


Strong like bull. Smart like tractor.


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## tmurray (Oct 8, 2014)

I genuinely can't tell if Conarb is being facetious.


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## MASSDRIVER (Oct 8, 2014)

tmurray said:
			
		

> I genuinely can't tell if Conarb is being facetious.


I'm calling genuine article baby.

Brent.


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## steveray (Oct 8, 2014)

MASSDRIVER said:
			
		

> I'm calling genuine article baby. Brent.


I am pretty sure.....and just hoping he is not right.....


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## ADAguy (Oct 8, 2014)

The pleasure to "know" you is all mine.


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## mtlogcabin (Oct 8, 2014)

> _almost entire states like Montana will be depopulated._


If they can find us :razz:


*Geography QuickFacts**Montana**USA*

Land area in square miles, 2010145,545.80   3,531,905.43

Persons per square mile, 20106.887.4

They have been blocking access to public lands for years creating exactly what conarb's article talks about

http://helenair.com/news/local/report-gates-keeping-montanans-out-of-public-land/article_d013199f-30d5-517e-aeac-9a756b61eb51.html


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## conarb (Oct 8, 2014)

tmurray said:
			
		

> I genuinely can't tell if Conarb is being facetious.


Did you look at the new trains with most seats removed to make room for the disabled?  In addition to that they built model cars and disability activist groups were allowed to "try them out", they asked to move poles over to give them more room and they did.

On another note some time ago they declared most of our coast a National Monument and decreed that no private businesses would be allowed, about the only reason I ever went there was to go to Johnson's Oyster Farm, an oasis of good raw oysters on an otherwise barren coast, the oyster farm has now been kicked out despite a lawsuit that attempted to go all the way to the U.S. Supreme Court, even Diane Feinstein's intervention couldn't save them from the communists who want all land to be public lands.



			
				\ said:
			
		

> Wilderness advocates, who argued the  estero belongs to the public and commercial operations should be  removed, said they were glad to put an end to the prolonged battle and  were looking forward to the cleanup phase.
> 
> “I’m grateful that, at long last,  Drakes Estero is finally on its way to restoration,” said Amy Trainer,  executive director of the Environmental Action Committee of West Marin.  “This agreement is going to usher in the opportunity for this  magnificent and sensitive estuary to be restored.” ¹


Similarly this empire has declared sovereign over almost the entire Pacific Ocean by declaring it a National Monument:



			
				NOAA said:
			
		

> *Why were the Monuments established and what are the benefits?*
> 
> The Monuments were created to protect the abundant and diverse  coral, fish and seabird populations; to facilitate exploration and  scientific research and to promote public education regarding the value  of these national treasures. The establishment of the Monuments provides  the opportunity to protect areas of outstanding scientific, cultural,  conservation and aesthetic value, and provide for the long-term  persistence of these natural and cultural legacies. By designating these  areas of the Pacific Ocean as Marine National Monuments, the United  States ensures that the marine environments receive the highest level of  environmental recognition and conservation.
> 
> ...


That ocean belongs to this empire no more than it belongs to other sovereign nations such as China, Japan, Australia or any other nation bordering on it.  Is it any wonder that we are the most hated empire that the world has ever known?  We tried that in the '30s and Japan retaliated at Peal Harbor.

¹ http://www.pressdemocrat.com/news/2927908-181/drakes-bay-oyster-co-agrees#page=2

² http://www.fpir.noaa.gov/MNM/mnm_faq.html


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