Today the Ninth Circuit ruled that governmental entities must have handicap parking spaces among the other public on-street parking they provide. But 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. Under today’s 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.
When the Americans with Disabilities Act of 1990 (“ADA”) was passed, it prohibited various forms of discrimination against persons with disabilities. It not only prohibited classic intentional discrimination, but also required both businesses and governments to take affirmative steps to ensure that persons with disabilities can enjoy the same opportunities to benefit from goods, services and public programs. One of the big challenges for persons with disabilities are physical barriers, such as unramped steps into buildings or narrow parking spaces that don’t have allow enough room for wheelchair users to deploy ramps or assemble their wheelchairs.
In 1990 Congress empowered the Department of Justice to develop and implement regulations and advisory materials to help both businesses and governmental entities to carry out their respective obligations. Among those regulations are “Access Standards,” which read very much like a building code. They set the minimum standards of physical accessibility. Although the Access Standards implemented by the Department of Justice specifically address many of the most common elements, such as doors, ramps, parking lots, transaction counters, restrooms, and paths of travel – to name just a handful – they cannot and do not address every possible physical element or space. And while the Department of Justice is always working with the Access Board to develop new standards and fine-tune the existing Standards, it will never address every physical element. In recognition of this fact, the Department of Justice has said, from the outset, that where there are no specific Access Standards for a particular thing, businesses and government entities must adapt the Access Standards that are most suitable and apply them in a reasonable fashion to ensure that persons with disabilities are not discriminated against.
In Fortyune v. City of Lomita, the dispute had to do with public parking on the street. The City of Lomita did not have any handicap parking spaces among its public on-street parking. Mr. Fortyune, a paraplegic, sued the City under the ADA. The City argued that the Access Standards do not specifically address public, on-street parking but only address parking lots. The City argued that in absence of any specific regulations for on-street, public parking, the City had no obligation to provide handicap parking on the street. Mr. Fortyune argued that you have to adapt the existing Access Standards to public on-street areas. In other words, the Access Standards identify the basic features of an accessible (handicap) parking space. These are features we are all familiar with, such as the identifying signage on the parking space, the fact that it must be located close to an accessible path of travel, and so forth. Today the Ninth Circuit ruled that the City was obligated to adapt existing Access Standards and come up with a plan so that persons with disabilities can also participate in and enjoy the on-street public parking like the rest of us.
The immediate import of today’s ruling is that cities and other governmental entities that provide public, on-street parking, must also provide accessible, i.e., handicap on-street parking. The bigger picture is that the same argument applies in other areas where there may be no express or explicit Access Standards. Merely because there are no explicit standards does not relieve a City (or business) from applying common sense Standards.