Tyler v. City of Manhattan

• Decision Date: 07 July 1994
• Docket Number: Civ. A. No. 93-4030-DES.
• Citation: 857 F. Supp. 800
• Parties: Lewis "Toby" TYLER, Plaintiff, v. CITY OF MANHATTAN, Defendant.
• Court: U.S. District Court — District of Kansas

857 F. Supp. 800

Lewis "Toby" TYLER, Plaintiff, v. CITY OF MANHATTAN, Defendant.

Civ. A. No. 93-4030-DES.

United States District Court, D. Kansas.

July 7, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Larry J. Leatherman, Palmer & Lowry, Topeka, KS, for Lewis "Toby" Tyler.

James S. Pigg, Fisher, Patterson, Sayler & Smith, Topeka, KS, William L. Frost, Morrison, Frost and Olsen, Manhattan, KS, Kurt A. Level, Fisher, Patterson, Sayler & Smith, Overland Park, KS, for City of Manhattan.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter was tried to the court on April 25-26, 1994. Following the trial, the parties were directed to submit proposed findings of fact and conclusions of law. The court has considered the evidence, the arguments of counsel, the parties' proposed findings of fact and conclusions of law, and their responses. The court is now prepared to rule.

FINDINGS OF FACT

1. Plaintiff Toby Tyler uses a wheelchair. The entire right side of his body is paralyzed

from head to toe. His disability is the result of a 1982 gunshot wound to the head while he was on duty as a patrol officer in Brookfield, Wisconsin. As a result of his disability, he is essentially unable to read. Although he uses a wheelchair, he is able to use handicapped-accessible public restrooms without assistance.

2. Plaintiff moved to Manhattan, Kansas, with his wife Vicki Tyler in 1987, after he retired from the Brookfield Police Department. He presently resides in the City of Manhattan ("City").

3. Plaintiff is not employed.

4. Plaintiff is active in civic affairs and regularly attends meetings of the City Commission and the Municipal Airport Advisory Committee.

5. Beginning in the fall of 1991, Mr. and Mrs. Tyler initiated contacts with officials of the City of Manhattan expressing their concerns about the lack of handicapped-accessible parking throughout the city.

6. Unsatisfied with the responses they received from city officials, Mr. and Mrs. Tyler filed a complaint with the Kansas Attorney General's Office on January 27, 1992. The Attorney General's Office in turn contacted James R. Pearson, then Assistant City Manager of the City of Manhattan, noting the requirements of the Americans with Disabilities Act (ADA) that had taken effect January 26, 1992, as well as state law requirements regarding handicapped-accessible parking.

7. On January 26, 1992, the City published a notice in the local newspaper stating its intent to comply with the ADA in the provision of services and programs to the public. The notice designated Cornell Mayfield, Director of the Department of Human Resources, to coordinate its efforts to comply with the ADA. The public notice was also sent to local radio stations.

8. On January 28, 1992, city staff made a presentation to the City Commission concerning the ADA. Its purpose was to inform the Commission about the ADA and its impact on the City of Manhattan.

9. On February 18, 1992, James Pearson responded to the letter from the Attorney General's Office concerning the Tylers' complaint by assuring that the City Commission and staff were totally committed to complying with the ADA.

10. Vicki Tyler filed a second complaint with the Attorney General's Office on March 12, 1992, again citing a lack of handicapped-accessible parking.

11. In response to this complaint, at the request of Mr. and Mrs. Tyler, James Pearson met with Mr. Robert Burke, a representative of Access USA. Access USA is an advocacy organization for disabled persons. As a result of this meeting, the City agreed in May 1992, to make numerous revisions to handicapped parking spaces at city facilities. The City agreed to accomplish the changes by July 1, 1992. The Attorney General's Office considered the Tylers' complaint resolved by this agreement.

12. Sometime after July 1, 1992, the Tylers contacted the Attorney General's Office and stated that all of the agreed modifications had not been accomplished by the deadline. They were advised that they could hire private counsel to pursue the matter, and that if they elected to do so the Attorney General's Office would not proceed further. The Tylers later notified the Attorney General's Office that they had retained private counsel to pursue the matter.

13. In early 1992, after the effective date of the ADA, meetings of the Municipal Airport Advisory Committee were held at a privately owned restaurant that was not wheelchair-accessible without assistance. After plaintiff informed city officials that the restaurant was inaccessible, the meeting location was changed to another restaurant. Although the second restaurant had an accessible entrance for persons using wheelchairs, its threshold posed a barrier to access. Inside the building, steps separated the meeting location from the restrooms. In addition, restrooms were inaccessible without first asking permission of a restaurant employee. Plaintiff again spoke to city officials about the meeting location. Thereafter, the meeting location was changed to a third restaurant. The interior of the restaurant where meetings are currently held is accessible. However, the single handicapped parking space in the parking lot of the restaurant is not marked with pavement striping. If insufficient space is left by a vehicle parking adjacent to plaintiff's vehicle, he is unable to access his car in his wheelchair.

14. On April 29, 1992, plaintiff sent a letter to Mr. Curtis Mayfield requesting that agendas and information packets for City Commission meetings be made available on audio tape at the city library. On May 1, 1992, Mr. Mayfield responded by letter, indicating that the agenda would be on file in both regular and large print at the city library, and the City was taking steps to provide the materials in audiotape format upon request if a person needs such an accommodation. About three months later, the City began recording City Commission agendas on microcassette audiotape. The audiotaped agenda is placed in the city library with a tape player and is accessible to any interested person.

15. The packet of documents accompanying the City Commission meeting agenda is placed on file at the city library for public review. The City has not attempted to transfer the packet materials to audiotape. The packets are typically about one inch thick, and may include irregular documents such as maps and plats in addition to lengthy reports. It would be impracticable to translate all such materials to audiotape format in a timely fashion prior to City Commission meetings, which are held biweekly.

16. Plaintiff has requested that the city provide an audiotaped index or list of the materials in the agenda packet as an alternative to transferring all such materials themselves to audiotape. Mr. Pearson refused this request, citing lack of personnel.

17. On June 2, 1992, the City of Manhattan submitted an application to the state of Kansas requesting $264,000 in funding from the Small Cities Community Development Block Grant Fund for the purpose of financing handicapped accessibility improvements at city-owned facilities. The amount requested was to be matched with city funds.

18. The Mayor of the City of Manhattan, with the approval of the City Commission, appointed an eight-member ADA Committee on May 19, 1992. James Pearson was appointed to serve as staff liaison to the Committee. The purpose of the Committee was to advise the City Commission and City Manager to assure compliance with Titles II and III of the ADA and related Kansas statutes; to assist the City Commission in identifying barriers to persons with disabilities in public facilities and programs for inclusion in the City's ADA transition plan; and to make recommendations for expenditure of budgeted funds for the purpose of removing identified barriers in public facilities and programs.

19. At its first meeting on June 4, 1992, the ADA Committee was presented with a transition plan drafted by city staff. Also provided to the Committee was a list of buildings owned by the City of Manhattan and the estimated cost of improvements anticipated to be necessary for several city facilities.

20. The ADA Committee was also provided a copy of the City's proposed "ADA Services and Programs Policy." The expressed purpose of the proposed policy was to insure that each city service, program, and activity operates in such a manner that, when viewed in its entirety, it is readily accessible to and usable by persons with disabilities. The policy designates the Department of Human Resources as the agency responsible for compliance with the ADA and parallel state laws, including the processing of official complaints.

21. The ADA Committee met again on June 11, 1992. The Committee discussed the proposed ADA Services and Programs Policy statement and reviewed the draft transition plan. The Committee was informed that the City had adopted a grievance procedure for the resolution of complaints against the City regarding compliance with Title II of the ADA. Under the grievance procedure, complaints are to be submitted in writing, addressed to Mr. Cornell Mayfield, Director of Human Resources. The Committee members were asked to prioritize the transition plan and identify additional barriers before the next meeting.

22. The ADA Committee next met on June 25, 1992. The Committee discussed and approved the proposed ADA Services and Programs Policy, and decided that copies of the policy should be distributed to all city employees. The Committee also discussed the transition plan and unanimously prioritized the list of facilities needing modifications or improvements in order to comply with the ADA. The Committee discussed each facility individually, identifying specific barriers in each that needed to be addressed. The Committee also discussed barriers in other public facilities, including the leased building that houses Municipal Court.

23. On July 2, 1992, a summary of the amended...