Fortyune v. City of Lomita

• Citation: 766 F.3d 1098
• Decision Date: 05 September 2014
• Docket Number: No. 12–56280.,12–56280.
• Parties: Robin FORTYUNE, Plaintiff–Appellee, v. CITY OF LOMITA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

766 F.3d 1098

Robin FORTYUNE, Plaintiff–Appellee,

v.CITY OF LOMITA, Defendant–Appellant.

No. 12–56280.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 2014.

Filed Sept. 5, 2014.

Robert Brockman, Jr. (argued), Matthew Racine, and Lee H. Roistacher, Daley & Heft LLP, Solana Beach, CA, for Defendant–Appellant.

Maria Michelle Uzeta (argued), Russell C. Handy, and Mark D. Potter, Potter Handy LLP, San Diego, CA, for Plaintiff–Appellee.

Thomas E. Perez, Assistant Attorney General, Christopher Chen–Hsin Wang (argued), and Mark Lenard Gross, United States Department of Justice, Civil Division, Washington, D.C., for Amicus Curiae the United States.

Alison Daly Alpert, Best, Best & Kreiger, San Diego, CA, for Amicus Curiae League of California Cities.

Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:11–cv–06644–DDP–JCG.

Before: RICHARD A. PAEZ and JACQUELINE H. NGUYEN, Circuit Judges, and J. FREDERICK MOTZ, Senior District Judge.^*

OPINION

PAEZ, Circuit Judge:

In this case, we must decide whether Title II of the Americans with Disabilities Act (“ADA”) requires local governments to provide accessible on-street parking in the absence of regulatory design specifications for on-street parking facilities. We hold that it does.

I. BACKGROUND

Robin Fortyune is a paraplegic who uses a wheelchair for mobility. He filed suit against the City of Lomita (“City”) in state court, alleging that he experiences “great difficulty, discomfort and, even[ ] fear for his safety” when frequenting facilities in the City because none of the City's public on-street parking is accessible to people with disabilities. He brought claims under the ADA, 42 U.S.C. §§ 12101 et seq., and the California Disabled Persons Act (“CDPA”), Cal. Civ.Code §§ 54 et seq.

The City removed the case to federal court, and moved to dismiss Fortyune's complaint under Federal Rule of Civil Procedure 12(b)(6). The City argued that, absent the adoption of ADA implementing regulations specifically targeted toward on-street parking, it is not required to provide accessible on-street parking. The district court denied the motion to dismiss, concluding 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.” ¹ The City filed a motion to certify the district court's order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which the district court granted. The City then timely petitioned for leave to appeal, and a motions panel of this court granted the petition.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1292(b). ² We review de novo a district court order denying a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.2010); Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078, 1079 (9th Cir.2005). The district court's interpretation of the ADA and the CDPA are questions of law subject to de novo review. Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir.2007); Molski v. Foley Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1046 (9th Cir.2008).

III. ANALYSIS

“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). The statute provides a “comprehensive,” “broad mandate” to eliminate discrimination against disabled persons, addressing both “outright intentional exclusion” as well as the “failure to make modifications to existing facilities and practices.” Id. at 675, 121 S.Ct. 1879 (internal quotation marks and citations omitted); see also Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir.2014); 42 U.S.C. § 12101(b)(1). “We construe the language of the ADA broadly to advance its remedial purpose.” Cohen, 754 F.3d at 695.

Title II of the ADA, the provision at issue in this case, applies to state and local governments. Id. at 694; 42 U.S.C. § 12131. It provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA was modeled on the Rehabilitation Act, which prohibited any “program or activity” that received federal funds from discriminating against disabled individuals. 29 U.S.C. § 794(a); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1216 n. 27 (9th Cir.2008); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch (“ BAART ”), 179 F.3d 725, 731–32 (9th Cir.1999). The Rehabilitation Act defines “program or activity” as “all of the operations of ... a department, agency, special purpose district, or other instrumentality of a State or of a local government.” 29 U.S.C. § 794(b). We have recognized that the term “services, programs, or activities” as used in the ADA is similarly broad, “ ‘bringing within its scope anything a public entity does.’ ” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002) (brackets omitted) (quoting Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir.2001)). Whether a particular public function is covered by the ADA turns simply on whether it is “ ‘a normal function of a government entity.’ ” Id. (quoting BAART,179 F.3d at 731).

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. Id. at 1076–78. In Barden, we explained 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.’ ” Id. at 1176 (brackets omitted) (quoting Hason v. Med. Bd., 279 F.3d 1167, 1173 (9th Cir.2002)). The same reasoning leads us to conclude that local governments must maintain accessible on-street public parking.

The City argues that Barden is distinguishable because, in that case, existing regulations concerning curb ramps clearly contemplated sidewalk accessibility. Here, however, the City contends that no existing regulation implicates on-street parking. The City's argument fails for several reasons. First, although the Barden court noted that its conclusion was “consistent with” an existing curb ramp regulation, its holding was based on the text of the ADA. See id. at 1076–77 (interpreting the phrase “services, programs, or activities” and considering similar text in the Rehabilitation Act). Second, we have previously recognized that, as a general matter, the lack of specific regulations cannot eliminate a statutory obligation. See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444–45 (9th Cir.1994) (explaining that although the Occupational Safety and Health Act contemplated that the Secretary of Labor would promulgate specific safety standards, such regulations could only “amplify and augment” the statute's general duty clause and their absence did not “displace” the statutory mandate to provide a safe workplace).

Third, existing regulations do require accessible on-street parking. Two regulations in particular apply to public on-street parking. The first is 28 C.F.R. § 35.150, which applies to all existing facilities.³ Pursuant to this regulation, public entities must “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.” 28 C.F.R. § 35.150(a). Because the provision of public on-street parking is a “service, program, or activity,” 28 C.F.R. § 35.150(a) applies to it. Under the regulation, however, public entities have some flexibility in handling existing inaccessible facilities. For instance, they are not required to make structural changes to all existing on-street parking facilities if they can make public on-street parking accessible by other means, such as by providing accessible on-street parking at other nearby sites. 28 C.F.R. § 35.150(b)(1); cf. Cohen, 754 F.3d at 697 (noting that in order to comply with 28 C.F.R. § 35.150, a public entity may require disabled individuals to “take a marginally longer route” (internal quotation marks omitted)). But, at bottom, the regulation mandates program accessibility for all normal governmental functions, including the provision of on-street public parking.

The second regulation, 28 C.F.R. § 35.151, governs only facilities that were constructed or modified after the ADA's effective date. Unlike 28 C.F.R. § 35.150, it requires that “each facility” constructed or altered after June 26, 1992 be “readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.151(a)(1), (b)(1). 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 (“UFAS”), the 1991 Standards for Accessible Design (“1991 Standards”), or the 2010 Standards for Accessible Design (“2010 Standards”). See id. § 35.151(c).⁴ The UFAS, the 1991 Standards, and the 2010 Standards contain detailed specifications for a range of different facilities, but none of them address on-street parking.⁵ However, nothing in 28 C.F.R. § 35.151 suggests that when technical specifications do not exist...