Did Dilatory, Dismissive Actions City Hall Denies Shrug Disability Act Duties, Block Access, Allow Safety Dangers? Fed'l Court Certifies 2014 Suit As Class Action, City Att'y Says It's Been Negotiating Toward A Possible Settlement; Taxpayer Costs Not Mentioned Publicly Yet
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(Sept. 22, 2015, 5:40 a.m.) -- On June 4, 2014, the day after voters elected Council incumbent Robert Garcia as Mayor, attorneys representing a number of Long Beach disabled residents filed a federal court lawsuit alleging that the City of LB -- plus all nine then-LB Council incumbents and LB's exiting Mayor named in their official capacities -- had allowed conditions to persist that violate the federal Americans With Disabilities Act and CA laws. The complaint states that it seeks "to redress systemic civil rights violations against people with mobility disabilities by the City of Long Beach and their elected officials."
The plaintiffs aren't seeking monetary damages [although it's not precluded in subsequent separate actions] but seek injunctive relief -- a Court order -- requiring the City to end certain current practices:
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[Complaint text]...At a minimum, Plaintiffs request that Defendants be enjoined to take the following actions:
a. Ensure that the City's pedestrian rights of way when viewed in their entirety are readily accessible to and useable by individuals with mobility disabilities;
b. Undertake prompt remedial measures to eliminate the physical barriers to access to pedestrian rights of way to make such rights of way accessible to Plaintiffs in accordance with federal and state nondiscrimination statutes;
c. Ensure that all future new construction and alterations to City pedestrian rights of way comply with the Americans with Disabilities Act Accessibility Guidelines and/or Uniform Federal Accessibility Standards, Title 24 of the California Code of Regulations standards and Cal. Govt. Code $$ 4450, et seq.; and
d. Remain under this Court's jurisdiction until Defendants fully comply with the Orders of this Court.
...Award Plaintiffs' attorneys' fees, expert expenses, and costs, as provided by law...
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The City has denied the lawsuit's allegations; there's been no trial yet, but last week on Sept. 15, 2015, federal court judge Dale S. Fischer certified the suit as a class action (a ruling the City opposed)...and in a statement (text below) the City Attorney's office acknowledges it's been in negotiations for a possible settlement.
Although the plaintiffs aren't seeking monetary damages in the lawsuit, the outcome could mean infrastructure costs for LB taxpayers and, if the judge determines that the plaintiffs effectively prevailed, the Court can award attorney fees, also ultimately paid by LB taxpayers. To date, neither side has publicly mentioned figures.
LBREPORT.com provides below plaintiffs' contentions (in their points and authorities in support of their motion for certification as a class action) regarding the City's handling of these issues prior to the lawsuit. Caveat: the text below is from plaintiffs' adversarial viewpoint; the contentions would be subject to trial if the suit proceeds.
[Plaintiffs' points and authorities in support of certification as a class action]...The regulations implementing the ADA [federal Americans with Disabilities Act] and Section 504 [Rehabilitation Act of 1973] require public entities such as the City to implement a Self-Evaluation and Transition Plan to evaluate and improve the accessibility of their facilities. See 28 C.F.R. § 35.150(d). The City did attempt to create a transition plan (the “Transition Plan” or “Plan”) in 1995. Lee Decl. ¶¶ 3, 4, Ex. 1(“Transition Plan Summary Report” at COLB 2981-3028) & Ex. 2 (“Transition Plan for Curb Ramps” at COLB 317-560). However, the Plan was limited in scope, focusing solely on curb ramps. It did not address mid-block barriers or barriers in crosswalks between curb ramps. (Id.) (omitting any analysis of sidewalks or crosswalks).
Additionally, the City has never updated its incomplete 1995 Transition Plan. See Lee Decl. ¶ 5, Ex. 3 (Deposition of Dora Hogan Transcript (“Hogan Dep.”) at 42:22-24). For example, since 1995, the City has not conducted an updated assessment to determine whether repairs or upgrades need to be made to existing curb ramps. Id. Also, though the City claims that it conducted an assessment of City sidewalks in 2000 to identify repair issues, this assessment fails to acknowledge or address critical accessibility factors, such as obstacles in the path of travel, slopes and cross slopes of sidewalks, and the width of the clear path of travel. See Id. ¶ 6, Ex. 4 (Deposition of Charles Ramey (“Ramey Dep.”) at 60:20-25, 61:1-13; 65:4-21, 67:3-20, 80:3-12).
Furthermore, while the City apparently began to implement portions of its incomplete transition plan by scheduling the remediation of a portion of the needed curb ramps on an annual basis, the amount of work scheduled was woefully inadequate.6 Even worse, the City actually stopped efforts to affirmatively install and retrofit curb ramps in the late 1990s or early 2000s, leaving 70% of the corners identified as lacking curb ramps with no curb ramps and failing to retrofit 20% of existing noncompliant curb ramps. See, e.g., Id. ¶ 5, Ex. 3 (Hogan Dep. 95:17-20, 98:23-99:4).7
Then, in lieu of fully implementing its deficient Plan, the City chose to construct curb ramps based solely on a complaint-driven process wherein curb ramps are installed and/or retrofitted pursuant to “verified requests.” Lee Decl. ¶¶ 5, 7, 9, 10, Ex. 3 (Hogan Dep. 119:7-14), Ex. 5 (COLB 3943 (“Residential curb ramps (Groups 11-23) are installed based on citizens’ complaints.”)), Ex. 7 (COLB at 107 (“Construct access ramps and sidewalks on public rights-of-way based on verified requests.”)) & Ex. 8 (COLB at 209 (same)). Thus, the City has entirely abandoned implementation of the already inadequate Transition Plan...
...Initial discovery has revealed that Defendants’ complaint-driven system fails to ensure existing barriers are appropriately identified, assessed, and remedied in a consistent and timely manner. Different departments receive and deal with complaints, depending on whom the concerned citizen reaches out to initially. See Lee Decl. ¶ 5, Ex. 3 (Hogan Dep. 140:14-142:2). Thus, any class member seeking a remedy for an accessibility barrier on a pedestrian right of way has little guidance about whom to contact. Moreover, there is even less certainty that a complaint, once raised, will ever actually be dealt with. For example, putative class members Dorina Feten and Charles Lynch never received any communication from the City after making complaints about missing curb ramps in their neighborhoods, and no curb ramps have been installed in response to their complaints. See Feten Decl. ¶¶ 12-17; Lynch Decl. ¶¶ 13-17. Named Plaintiffs and other class members have had similar experiences. Rockwell Decl. ¶¶ 38-43; Shimozono Decl. ¶ 29-30; Nielsen Decl. ¶¶ 16-20; Thompson Decl. ¶¶ 10-12; Johnson Decl. ¶¶ 18-21.
The City itself admits that it has no internal deadlines for responding to ADA complaints, does not update complainants on the status of their complaints until they are resolved, and is “working on” setting up a “better process” for communicating with complainants. Lee Decl. ¶ 5, Ex. 3 (Hogan Dep. 179:17-181:1). Additionally, a review of the City’s complaint database indicates that many of complaints received have never been remediated; indeed, the database fails to provide any sort of schedule for remediating or resolving such complaints. Lee Decl. ¶ 12, Ex. 10...
The City has repeatedly failed to provide the required temporary alternate accessible routes when it is engaged in construction on roadways or pedestrian rights of way, making very difficult or even impossible for individuals with mobility disabilities to travel in areas where construction is taking place. Rockwell Decl. ¶¶ 43-48; Shimozono Decl. ¶¶ 26-28; Soto Decl. ¶ 26; Ochoa Decl ¶ 16; Nielsen Decl. ¶¶ 12-15; Gilardi Decl. ¶¶ 20-25; Devylder Decl. ¶ 9. Again, recent deposition testimony and City records indicate that the City does not have any written policies requiring contractors to provide these mandated temporary accessible routes when they are engaged in construction. Lee Decl. ¶ 6, Ex. 4 (Ramey Dep. 120:14-17). The lack of clear and enforceable policies requiring such alternate routes during construction has and continues to create numerous dangers for pedestrians with mobility disabilities throughout the City. Rockwell Decl. ¶¶ 43-48; Shimozono Decl. ¶¶ 26-28; Soto Decl. ¶ 26; Nielsen Decl. ¶¶ 12-15; Gilardi Decl. ¶¶ 20-25; Devylder Decl. ¶ 9.
In a statement provided to LBREPORT.com, the City Attorney's office says:
We anticipated the class would be certified and, contrary to the suggestion raised by the Plaintiffs, the City has been actively negotiating towards a possible settlement, and have made substantial progress towards a comprehensive resolution of the entire case. It is important to note that very early on in this litigation, both sides agreed to meet, both City representative and class representatives as well as their respective counsel, which was very productive, and a second session is planned for this October.
Most importantly, last week our City council just adopted the 2016 budget which includes a new, full time ADA Coordinator, as well as funds to obtain a new transition plan.
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The plaintiffs are represented by three public interest law firms: two focusing on disability rights (one in L.A., another in Oakland) plus a separate plaintiffs' public interest class action law firm in Oakland.
In her order certifying the case as a class action, Judge Fischer wrote: "The Court cautions counsel to read this Court's requirements concerning applications for attorneys’ fees on the Court's website. The Court also urges counsel to avoid duplication resulting from the presence of three firms. The Court will not compensate duplicative billing."
Developing...with further as newsworthy on LBREPORT.com
