In Search of Compliance under Title II of the ADA

admin — Tue, 15 Sep 2009 15:47:54 +0000

The present status of disabled access in California’s cities and counties reminds me of an episode from Leonard Nimoy’s 1970’s series “In Search Of . . .“. I realize I may be dating myself, but the point I’m trying to make is very simple: whatever happened to Title II compliance?

In fairness, Title II compliance in California (or lack thereof) is not limited to public municipalities. In the past six months, my office has received reports of access barriers involving a number of other Title II entities including public universities, community colleges, school districts, park districts, utility districts, and even public hospitals.

It’s the “new construction” that really gets me. Title II mandates that all new (i.e., post-ADA) buildings and facilities constructed by public entities be free of architectural barriers that restrict access or use by individuals with disabilities. It boggles the mind how a public entity can build anything in this day and age and still fail to make it accessible. Is it apathy or just a lack of knowledge? I guess that’s a question only public entities can answer.

For example, my office is involved in a pending Title II case with the Folsom Cordova Unified School District. In its initial discovery responses, FCUSD produced a copy of a recent disabled access survey for a public elementary school built in 2006. The survey is 67 pages and documents over 160 separate ADAAG and/or California Building Code violations.

One thing is for certain: as long as public entities continue to build barriers, Title II cases will continue to be filed.

Leonard Nimoy, where are you?

Munson v. Del Taco – Why should a disabled plaintiff be required to prove intentional discrimination?

admin — Fri, 07 Aug 2009 00:49:54 +0000

Welcome to the Left Coast Access Blog.

Let’s dive right in with the matter of Munson v. Del Taco, a case which is presently pending before the California Supreme Court.

Munson involves a mobility-disabled plaintiff who sued the Del Taco Corporation in federal district court under the ADA and California’s Unruh Civil Rights Act after he encountered a number of architectural barriers at a corporate-owned Del Taco restaurant in southern California. The district court granted partial summary judgment in favor of the plaintiff on the ADA and Unruh Act claims after finding, among other things, that the restroom doorway was too narrow and that widening the same was “readily achievable”.

Del Taco appealed the judgment to the Ninth Circuit Court of Appeals who then remanded the matter back to the California Supreme Court to answer two certified questions:

1. Must a plaintiff who seeks damages under California’s Unruh Civil Rights Act (California Civil Code section 52) claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Act, Cal. Civ. Code section 51, prove “intentional discrimination”?

2. If the answer to Question 1 is “yes,” what does “intentional discrimination” mean in this context?

There is ample statutory authority and relevant case law to allow the California Supreme Court to simply respond “no” and end the debate. In fact, in 1992, the Unruh Civil Rights Act was amended to state that “[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section.” It is well settled in federal court that intentional discrimination need not be proven to establish an ADA violation. See Lentini v. California Center for the Arts, 370 F.3d 837, 847 (9th Cir. 2004); Wilson v. Haria & Gogri Corp., 479 F.Supp. 1127, 1137 (E.D.Cal. 2007).

It naturally begs the question: if the Unruh Act has incorporated the ADA (and the ADA does not require a finding of intentional discrimination), then why should the Unruh Act require a finding of intent?

Not surprisingly, the private business sector wants the California Supreme Court to require proof of intentional discrimination in order to avoid the statutory damage minimum of $4,000 under Civil Code section 52. To that end, a number of amicus briefs have been submitted from business-related entities including the National Federation of Independent Business and Los Burritos, Inc.

Pro-access groups have filed competing amicus briefs, including the California Council of the Blind, the California Foundation for Independent Living Centers, Californians for Disability Rights, Disability Rights Education and Defense Fund, the Disability Rights Legal Center, the Aids Legal Referral Panel, and The Impact Fund.

Where we end up is anyone’s guess. Taco anyone?

Cable | Gallagher Law

In Search of Compliance under Title II of the ADA

Munson v. Del Taco – Why should a disabled plaintiff be required to prove intentional discrimination?