Link, Inc. v. City of Hays

• Decision Date: 28 January 2000
• Citation: 268 Kan. 372,997 P.2d 697
• Parties: LINK, INC., LOU ANN KIBBEE, AND BRIAN ATWELL, Appellees, v. CITY OF HAYS, KANSAS, Appellant.
• Court: Kansas Supreme Court

268 Kan. 372

997 P.2d 697

LINK, INC., LOU ANN KIBBEE, AND BRIAN ATWELL, Appellees, v. CITY OF HAYS, KANSAS, Appellant.

NO. 81,620.

Supreme Court of Kansas.

Opinion filed January 28, 2000.

John T. Bird, of Glassman, Bird & Braun, L.L.P., of Hays, argued the cause and was on the brief for appellant.

David P. Calvert, of David P. Calvert, P.A., of Wichita, argued the cause, and James L. Germer, of Kansas Advocacy and Protective Service, Inc., of Topeka, was with him on the brief for appellees.

The opinion of the court was delivered by

SIX, J.:

In this mandamus case, we revisit enforcement issues under the Americans with Disabilities Act (ADA) accessibility standards. See Link, Inc. v. City of Hays, 266 Kan. 648, 972 P.2d 753 (1999) (Link I.) The parties in Link I are again before us. The district court issued a writ directing the City of Hays (the City) to enforce K.S.A. 58-1304(a)(4) of the ADA. The district court also awarded attorney fees to plaintiffs. The City appeals.

Link I and this case involve the interpretation of K.S.A. 58-1304(a). Link I concerned ADA accessibility standards for existing Title III public accommodations and commercial facilities built without municipal funds. We decided that K.S.A. 58-1304(a)(3) was ambiguous and reversed the district court. We held that the City had no K.S.A. 58-1304(a)(3) enforcement duty. Link I, 266 Kan. at 655, 657. Link I deals with paragraph (3) of 58-1304(a). Here, we are dealing with paragraph (4) of 58-1304(a). We are reviewing the grant of a writ directing the City to enforce the ADA in the design and construction of all new and all additions to and alterations of facilities subject to K.S.A. 58-1301 et seq. (both public and private).

Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our own motion).

The two issues for resolution are:

(1) Did the district court err in deciding that: (a) the City has not enforced K.S.A. 58-1304(a)(4) when issuing building permits, and (b) the City's refusal to perform its duty of enforcement was unreasonable; and (2) Was a $300 per hour attorney fee award reasonable?

We affirm the writ of mandamus and the award of attorney fees.

DISCUSSION

The mandamus action was filed by two wheelchair users, Lou Ann Kibbee and Brian Atwell, and Link, Inc., a nonprofit corporation and center for independent living (collectively Link). Link argued that the City failed to comply with its statutory duties under K.S.A. 58-1301 et seq. (the federal ADA of 1990, 42 U.S.C. § 12101 et seq. [1994], is incorporated into Kansas statutes). The district court issued two writs of mandamus in response to the litigation. We vacated the first writ in Link I.

Here, we are concerned with a writ which directs the City to enforce ADA accessibility requirements under K.S.A. 58-1304(a)(4). "Paragraph (4) deals with new construction, placing enforcement on `the building inspector or other agency or person designated by the governmental entity in which the facility is located.' "Link I, 266 Kan. at 651.

The City concedes that the duty to enforce exists. Thus, the issue is not whether a duty to enforce exists, but whether that duty is being performed by the City and, if not, whether the failure to perform is unreasonable.

Link argues that the City has not met its K.S.A. 58-1304(a)(4) enforcement responsibilities. Local governments are responsible for enforcing the ADA through building inspectors or other designated officials. Building inspectors can assure compliance by issuing or denying building permits. According to Link, the City does nothing to ensure that new structures comply with the ADA before issuing either building permits or certificates of occupancy. Link also argued that the City's failure to enforce K.S.A. 58-1304(a)(4) was unreasonable and urged the district court to award it attorney fees under K.S.A. 60-802(c).

The City contends that it enforced the ADA through a cooperative partnership with Link. The City admits that it had no formal contract with Link. However, the City claims "the two entities established a working relationship whereby Link would review all building plans, do site inspections, and act as a consultant to the City on ADA issues."

Following a bench trial, the district court found that the City had no mechanism in place for enforcing the ADA under K.S.A. 58-1304(a)(4). The district court directed the City to establish procedures for enforcing K.S.A. 58-1304(a)(4). The court said: "It is clear from the evidence presented at trial that the attitude of the City of Hays, while not overtly hostile to the concept of enforcement of accessibility standards, reflects an attitude of benign indifference to [its] statutory duty." The district court held:

"A. The City of Hays is ordered to enforce K.S.A. § 58-1304(a)(4), specifically including those entities set forth in the Pretrial Conference Order. The City may, in its discretion, utilize any reasonable enforcement tools necessary to assure compliance.

"B. The City of Hays will develop procedures designed to raise the issue of accessibility prior to the granting [of] a permit.

"C. The City of Hays will develop procedures for determining if efforts at compliance are sufficient in a particular case, including obtaining advisory opinions from agencies such as DBTAC, U.S. Architectural and Transportation Barriers Compliance Board, U.S. Dept. of Justice, or independent living centers.

"D. The City of Hays will develop procedures for notice and opportunity to be heard for persons found not in compliance.

"E. The City of Hays will develop procedures for acting upon complaints of noncompliance."

The district court also ruled that Link was entitled to reasonable attorney fees. K.S.A. 60-802(c) authorizes an award of attorney feesin mandamus actions on a finding that refusal to perform a duty was unreasonable. See Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, Syl. ¶ 5, 438 P.2d 732 (1968). The district court concluded that the City's duty was clear and there was no reasonable justification for the City's failure to enforce K.S.A. 58-1304(a)(4). After a hearing, the district court set the amount of attorney fees at $300 per hour for a total of 161.4 hours.

Mandamus

A mandamus proceeding is defined by K.S.A. 60-801 as

"a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law."

The City suggests that the district court was without authority to issue the writ because the manner in which the City chooses to enforce the ADA is entirely within its own discretion. The City relies on Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 671 P.2d 559 (1983). Arney, a prison inmate, sought mandamus to compel a penitentiary director to allow a television crew to visit and tape him. The district court granted the writ. We reversed, holding that mandamus is available only for the purpose of compelling the performance of a clearly defined duty. 234 Kan. 257, Syl. ¶ 2. Mandamus may not be invoked to control discretion. Mandamus does not enforce a right that is in substantial dispute. A. party must be clearly entitled to the order sought before mandamus is proper. Lauber v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 128-29, 402 P.2d 817 (1965). The prison director in Arney had no statutory or other clearly defined duty to allow a prisoner to be visited by a television crew. The decision was purely discretionary. As a result, the visit could not be compelled through mandamus.

The City contends that the district court's writ here violates the long-established rule that mandamus may not be used to control discretion. The initial question is whether the writ dictates how the City must enforce the ADA under K.S.A. 58-1304(a)(4). The answer is "no."

Mandamus was proper here because the district court ruled Link had alleged the City was not discharging its duty under K.S.A. 58-1304(a)(4) at all. The City's characterization of this case is misleading. The question in the district court below was whether the City was enforcing the ADA as it is required to do under K.S.A. 58-1304(a)(4). The parties stipulated that the City has a duty to enforce K.S.A. 58-1304(a)(4). Thus, unlike Arney, there is a clearly defined statutory duty at issue. The only question is the one litigated below: Was the City discharging that duty? The City's "discretionary" argument fails. Therefore, the City must show, contrary to the district court's findings, that it was in some way discharging its 58-1304(a)(4) statutory duty. The City contends the record shows that it has done so. We disagree.

K.S.A. 58-1304(a)(4) Enforcement—the City's Position

The City: (1) argues it has neither refused nor failed to enforce the ADA, (2) contends the evidence showed it in fact made efforts to comply with the ADA through "a working relationship with [Link]," (3) cites a few examples of testimony that arguably supports its position, (4) claims that it was enforcing the ADA accessibility standards through this working relationship when Link ended the relationship for no apparent reason, and (5) characterizes Link's position as "nothing more than [an allegation] that the City of Hays did not enforce the ADA because [it] did through a third party what [it] could have done personally."

The City contends that it instructed Wayne Schwartz, the building inspector, to take responsibility for ensuring ADA compliance through its permit process. According to the City, Schwartz, a former fire chief, was told to educate himself in ADA and ADAAG (Americans with Disabilities Act Accessibility Guidelines) compliance. Schwartz allegedly directed his assistant, Ron Michaelsen, to investigate ADA complaints. The City also allegedly trained three employees in ADA enforcement. The district court...