ADA Compliance: Is it Enough? Tiffany Lorenzen General Counsel. San Diego Metropolitan Transit System

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1 ADA Compliance: Is it Enough? Tiffany Lorenzen General Counsel San Diego Metropolitan Transit System Page 1 of 1

2 Two recent cases in the 9 th Circuit discuss federal accessibility guidelines and liability for failure to reasonably accommodate passengers: 1.Sheron George v. Bay Area Rapid Transit District (577 F. 3d 1005) 2. Barbara Boose v. Tri-County Metropolitan Transportation District of Oregon (587 F. 3d 997) Page 2 of 2

3 George v. BART George was a visually impaired transit rider who fell down a set of stairs claiming she did not see any indication she was approaching a stairwell. Fourte Dancy was also visually impaired and claimed she experienced anxiety when using BART s stations because they were not equipped with color-contrast striping or accessible handrails. Both plaintiffs claimed they were unable to use BART s universal route for blind and low-vision patrons. Page 3 of 3

4 George v. BART Plaintiffs sued BART in federal court alleging violations of the ADA and the Rehabilitation Act of All parties agreed that BART s facilities complied with DOT regulations requiring at least one accessible path of travel from at least one accessible station entrance. The district court concluded DOT regulations were arbitrary and capricious by failing to fulfill the ADA mandate requiring public transportation to be accessible to all patrons with disabilities. BART was ordered to pay plaintiffs attorneys fees, $35,000 in compensatory damages, and take 7 steps to improve accessibility at its stations. Page 4 of 4

5 George v. BART After the United States intervened in the case, the 9 th Circuit Court of Appeals was left to decide whether visually impaired riders could recover under the ADA when a public transit agency complied with existing regulations for station accessibility. In a two-part decision, the Court of Appeals reached the following conclusions Page 5 of 5

6 George v. BART I. The DOT regulations are not arbitrary or capricious because the DOT did address the needs of visually impaired riders: The Architectural and Transportation Barriers Compliance Board (ATBC) explicitly included provisions designed to minimize the distance traveled by persons who cannot easily negotiate steps; The regulations also include special signage, tactile warnings, and glare minimization specifications; Page 6 of 6

7 George v. BART The ATBC considered, but ultimately rejected, duplicate tactile signs where there were visual signs because it would have required transit agencies to maintain two types of signs; and Unless DOT regulations are arbitrary or capricious, BART is required to do no more than follow them. Page 7 of 7

8 George v. BART II. If BART had been found liable under the ADA, it would still be immune from liability under the safe harbor provisions of 49 CFR 37.9 and 42 USC (i.e. compliance with accessibility requirements = immunity) Title III DOJ case law can be used as a rationale to interpret Title II DOT regulations; and To challenge the DOT standards, plaintiffs are required to follow the Administrative Procedures Act; they may not use the court system to try and enact regulations that the ATBC concluded were not necessary. Page 8 of 8

9 George v. BART Important point for your transit agency: Your client should follow DOT accessibility standards so it can utilize the immunity provisions of the regulations and insulate itself from liability! Page 9 of 9

10 Boose v. Tri-Met Boose suffered from a balance disorder and was an approved rider for Tri-Met s paratransit program (LIFT). Boose submitted a request to Tri-Met that it schedule her rides only in sedans or taxis as she experienced less dizziness and nausea in those vehicles than in LIFT vehicles. Boose submitted a note from her physician with a request stating she had reported bus-associated traumas that aggravated her condition and her physician recommended that she use only sedans or taxis to reduce her emotional distress. Page 10 of 10

11 Boose v. Tri-Met When Tri-Met declined the request, Boose filed a complaint in federal court alleging that the denial violated the ADA and the Rehabilitation Act of The district court granted Tri- Met s motion for summary judgment. The only issue on appeal was whether Tri-Met had to accommodate Boose based on a DOJ regulation (28 CFR 130(b)(2) requiring public entities to make reasonable modifications to their policies, practices, or procedures. (i.e. who has regulatory authority over transit agencies, DOJ or DOT?) Page 11 of 11

12 Boose v. Tri-Met In a two-part decision, the 9 th Circuit Court of Appeals concluded that: I. The DOJ does not have the authority over matters solely within the purview of the Secretary of Transportation Part A of 42 USC prohibits the DOJ from making rules that include any matter within the scope of the Secretary of Transportation (including paratransit services) While the DOT has not promulgated a rule regarding paratransit vehicle specifications, this does not mean that DOJ regulations automatically apply (citing Melton v. DART) If Part A prevents the DOJ from regulating transportation, what about Part B? Page 12 of 12

13 Boose v. Tri-Met Boose argued that since the substitution of a bus for a sedan or taxi is not covered by Part B, the DOJ reasonable modification standard would govern. The Court of Appeals disagreed finding that the Secretary of Transportation could issue a regulation regarding vehicle types but had chosen not to; any other reading would be an expansion of the DOJ s regulatory authority. Page 13 of 13

14 Boose v. Tri-Met II. If the DOT intended the DOJ regulations to apply, it would have said so. If the DOT wanted to include DOJ regulations regarding reasonable modifications it certainly could have done so; in fact, the DOT has done just that with private entities (28 CFR ). The 2006 notice of proposed rulemaking that purported to clarify the public transit agencies reasonable modification standard was never finalized by the DOT and, therefore, Tri-Met does not have to follow it. we will not, under the guise of deference, engage in an end-run around notice-and-comment rulemaking Page 14 of 14

15 Boose v. Tri-Met The Court declined to consider whether Tri-Met s compliance with its FTA-approved paratransit program provided immunity from an ADA lawsuit. NOTE: The Amicus group argued that the reason that the DOT does not require public agencies to comply with the DOJ regulations is because the DOT requirement to have a paratransit system is the reasonable modification to fixed-route service. Private entities are not required to maintain a paratransit service that compliments their regular service, which is why the DOJ regulations do apply to those entities. Page 15 of 15

16 Boose v. Tri-Met Important point for your transit agency: Your client should follow its FTA-approved paratransit plan to reduce exposure to ADA liability. Page 16 of 16

17 George v. BART Page 17 of 17

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