Fifth Circuit Rules Sidewalks Must Be Accessible

Posted on September 20, 2011 by Tom Crane

So, at least in the Fifth Circuit, sidewalks are now a "service" of the city such that the city must make sidewalks accessible to persons with disabiliuties.  The Fifth Circuit so ruled in the case of Frame v. City of Arlington.  The district court had dismssed the plaintffs' suit because, said the court, the two year statute of limitations had long since passed from the date the sidewalks had been built.  A three judge panel of the Fifth Circuit overturned the lower court decision, saying that yes, sidewalks are a service of the city.  Both sides then sought an en banc hearing before the entire Fifth Circuit appellate court.  The three judge panel then withdrew its decision and issued a new decision, saying no, sidewalks are not a service of the city.  I discussed that decision here. 

The Court has now rendered a close 8-7 decision, finding that providing sidewalks is a service of the city which must comply with Title II of the Americans with Disabilities Act.  See decision.  The decision is limited to sidewalks built or modified since January 26, 1992, the effective date of the ADA.  The decision specifically notes that the statute of limitations or time period in which the person must complain starts not when the sidewalks was built but when the person first encounters the sidewalk.  So, in effect, the statute of limitation will vary from person to person. Cities will now have much stronger incentive to make sidewalks repairs a higher priority. 

This is a huge issue for all municipalities.  There are miles and miles of sidewalks all across the country that are not accessible to persons in wheel chairs.  I still see too many wheel chair bound folks trying to traverse road shoulders just to get to the grocery store.  The cost is huge, but the danger of doing nothing is also very large. 

Tags: , , ,

Public Facilities Must be Accessible

Posted on September 23, 2010 by Tom Crane

The Americans with Disabilities act contains provisions requiring businesses and governments to provide accessible facilities.  Title II of the ADA requires that the facilities be accessible to persons with disabilities.  Many, many businesses have not complied with the ADA.  See comparison chart.  Some folks believe incorrectly that if their facility was built before passage of the ADA in 1990, then they do not need to comply.  That is not true.  Title II actually provides that public facilities must be accessible if accessibility is "readily achievable."  See Advocacy, Inc. Fact sheet.    Existing facilities which have received "substantial alterations" are not subject to any grandfather clause and must be accessible. 

Public facility includes everything open to the public: restaurants, hotels, theaters, doctor's offices, lawyers' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers.  In my own experience, even neighborhood association playgrounds or pools must be accessible.  

A large issue is sidewalks.  Are sidewalks a "service or program" of a city such that it fits the Title II requirements?  In a recent decision, the Fifth Circuit Court of Appeals found that sidewalks are not services or programs of the city.  The decision acknowledges that the various federal courts of appeals are divided over the question.  So, the issue will likely come before the US Supreme Court before long.  

In my neighborhood, there are a few folks in wheelchairs who have to traverse the shoulder of a busy Fredericksburg Road because there are no sidewalks.  How long before they have a close encounter with a Mack truck?

In a recent class action against Burger King, the company had to pay as settlement $5 million in damages and $2.5 million in attorney fees for 10 Burger King facilities that were but in the 1970's and 1980's.  Burger King tried to argue that since they were built before passage of the ADA, their facilitiers did not have to comply.  But, each of the 10 Burger King's had major alterations over the decades.  The plaintiffs claimed the facilities were not accessible to wheelchairs and scooters.  As our population ages, this will become more and more an issue.  See post.  The class action lawsuit was filed in the northern district court of California. 

 

Tags: , , , , ,

San Antonio Riverwalk Becomes Fully Accessible

Posted on December 23, 2009 by Tom Crane

 The City of San Antonio is spending $3 million to  make the Riverwalk accessible to wheel chairs.  Title II of the ADA requires that public places be accessible to persons with disabilities.  The Department of Justice supposedly enforces Title II.  The EEOC enforces a separate part of the ADA.  It is long past overdue that the Riverwalk be fully accessible.  But, most sidewalks in the older parts of all US cities are still not accessible.  See DOJ summary.   

Tags: , , ,