Robin Fortyune v. City of Lomita , 766 F.3d 1098 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN FORTYUNE, No. 12-56280
Plaintiff-Appellee,
D.C. No.
v. 2:11-cv-06644-DDP-JCG
CITY OF LOMITA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
February 13, 2014—Pasadena, California
Filed September 5, 2014
Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit
Judges, and J. Frederick Motz, Senior District Judge.*
Opinion by Judge Paez
*
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2 FORTYUNE V. CITY OF LOMITA
SUMMARY**
Americans with Disabilities Act
Affirming the district court’s denial of a motion to
dismiss, the panel held that Title II of the Americans with
Disabilities Act requires local governments to provide
accessible on-street parking in the absence of regulatory
design specifications for on-street parking facilities.
The panel stated that the text of the ADA, the relevant
implementing regulations, and the Department of Justice’s
interpretation of its own regulations all led it to conclude that
public entities must ensure that all normal governmental
functions are reasonably accessible to disabled persons,
irrespective of whether the DOJ has adopted technical
specifications for the particular types of facilities involved.
The panel held that the plaintiff had stated claims under the
ADA and the California Disabled Persons Act based on the
defendant city’s alleged failure to provide accessible on-street
diagonal stall parking.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FORTYUNE V. CITY OF LOMITA 3
COUNSEL
Robert Brockman, Jr. (argued), Matthew Racine, and Lee H.
Roistacher, Daley & Heft LLP, Solana Beach, California, for
Defendant-Appellant.
Maria Michelle Uzeta (argued), Russell C. Handy, and Mark
D. Potter, Potter Handy LLP, San Diego, California, for
Plaintiff-Appellee.
Thomas E. Perez, Assistant Attorney General, Christopher
Chen-Hsin Wang (argued), and Mark Lenard Gross, United
States Department of Justice, Civil Division, Washington,
D.C., for Amicus Curiae the United States.
Alison Daly Alpert, Best, Best & Kreiger, San Diego,
California, for Amicus Curiae League of California Cities.
OPINION
PAEZ, Circuit Judge:
In this case, we must decide whether Title II of the
Americans with Disabilities Act (“ADA”) requires local
governments to provide accessible on-street parking in the
absence of regulatory design specifications for on-street
parking facilities. We hold that it does.
I. BACKGROUND
Robin Fortyune is a paraplegic who uses a wheelchair for
mobility. He filed suit against the City of Lomita (“City”) in
state court, alleging that he experiences “great difficulty,
4 FORTYUNE V. CITY OF LOMITA
discomfort and, even[] fear for his safety” when frequenting
facilities in the City because none of the City’s public on-
street parking is accessible to people with disabilities. He
brought claims under the ADA, 42 U.S.C. §§ 12101 et seq.,
and the California Disabled Persons Act (“CDPA”), Cal. Civ.
Code §§ 54 et seq.
The City removed the case to federal court, and moved to
dismiss Fortyune’s complaint under Federal Rule of Civil
Procedure 12(b)(6). The City argued that, absent the
adoption of ADA implementing regulations specifically
targeted toward on-street parking, it is not required to provide
accessible on-street parking. The district court denied the
motion to dismiss, concluding that “the broad language of the
ADA requires public entities to ensure that all services,
including on-street parking, are reasonably accessible to and
usable by individuals with disabilities.”1 The City filed a
motion to certify the district court’s order for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b), which the district
court granted. The City then timely petitioned for leave to
appeal, and a motions panel of this court granted the petition.
1
Fortyune’s complaint alleged that the City did not provide parallel or
diagonal stall on-street parking. However, before the district court issued
a ruling on the City’s motion to dismiss, Fortyune voluntarily dismissed
his claims with respect to parallel on-street parking. Consequently, the
district court’s order and this appeal concern only whether Fortyune has
stated claims based on the City’s failure to provide accessible diagonal
stall on-street parking.
FORTYUNE V. CITY OF LOMITA 5
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1292(b).2
We review de novo a district court order denying a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010);
Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078, 1079 (9th
Cir. 2005). The district court’s interpretation of the ADA and
the CDPA are questions of law subject to de novo review.
Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832,
837 (9th Cir. 2007); Molski v. Foley Estates Vineyard &
Winery, LLC, 531 F.3d 1043, 1046 (9th Cir. 2008).
III. ANALYSIS
“Congress enacted the ADA in 1990 to remedy
widespread discrimination against disabled individuals.”
PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The
statute provides a “comprehensive,” “broad mandate” to
eliminate discrimination against disabled persons, addressing
both “outright intentional exclusion” as well as the “failure to
make modifications to existing facilities and practices.” Id.
at 675 (internal quotation marks and citations omitted); see
also Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir.
2
“A non-final order may be certified for interlocutory appeal where it
‘involves a controlling question of law as to which there is substantial
ground for difference of opinion’ and where ‘an immediate appeal from
the order may materially advance the ultimate termination of the
litigation.’” See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
687–88 (9th Cir. 2011) (quoting 28 U.S.C. § 1292(b)). “A substantial
ground for difference of opinion exists where reasonable jurists might
disagree on an issue’s resolution . . . .” Id. at 688. We are satisfied that
the district court and the motions panel of this court correctly determined
that certification was appropriate in this case.
6 FORTYUNE V. CITY OF LOMITA
2014); 42 U.S.C. § 12101(b)(1). “We construe the language
of the ADA broadly to advance its remedial purpose.”
Cohen, 754 F.3d at 695.
Title II of the ADA, the provision at issue in this case,
applies to state and local governments. Id. at 694; 42 U.S.C.
§ 12131. It provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The
ADA was modeled on the Rehabilitation Act, which
prohibited any “program or activity” that received federal
funds from discriminating against disabled individuals.
29 U.S.C. § 794(a); Pierce v. Cnty. of Orange, 526 F.3d 1190,
1216 n.27 (9th Cir. 2008); Bay Area Addiction Research &
Treatment, Inc. v. City of Antioch (“BAART”), 179 F.3d 725,
731–32 (9th Cir. 1999). The Rehabilitation Act defines
“program or activity” as “all of the operations of . . . a
department, agency, special purpose district, or other
instrumentality of a State or of a local government.”
29 U.S.C. § 794(b). We have recognized that the term
“services, programs, or activities” as used in the ADA is
similarly broad, “‘bringing within its scope anything a public
entity does.’” Barden v. City of Sacramento, 292 F.3d 1073,
1076 (9th Cir. 2002) (brackets omitted) (quoting Lee v. City
of L.A., 250 F.3d 668, 691 (9th Cir. 2001)). Whether a
particular public function is covered by the ADA turns simply
on whether it is “‘a normal function of a government entity.’”
Id. (quoting BAART, 179 F.3d at 731).
Recognizing the broad reach of the ADA, we have held
that Title II requires public entities to maintain accessible
public sidewalks, notwithstanding the fact that no
FORTYUNE V. CITY OF LOMITA 7
implementing regulations specifically addressed sidewalks.
Id. at 1076–78. In Barden, we explained that local
governments must maintain accessible sidewalks because
“maintaining public sidewalks is a normal function of a city
and ‘without a doubt something that the City does.’” Id. at
1176 (brackets omitted) (quoting Hason v. Med. Bd.,
279 F.3d 1167, 1173 (9th Cir. 2002)). The same reasoning
leads us to conclude that local governments must maintain
accessible on-street public parking.
The City argues that Barden is distinguishable because,
in that case, existing regulations concerning curb ramps
clearly contemplated sidewalk accessibility. Here, however,
the City contends that no existing regulation implicates on-
street parking. The City’s argument fails for several reasons.
First, although the Barden court noted that its conclusion was
“consistent with” an existing curb ramp regulation, its
holding was based on the text of the ADA. See id. at
1076–77 (interpreting the phrase “services, programs, or
activities” and considering similar text in the Rehabilitation
Act). Second, we have previously recognized that, as a
general matter, the lack of specific regulations cannot
eliminate a statutory obligation. See Reich v. Mont. Sulphur
& Chem. Co., 32 F.3d 440, 444–45 (9th Cir. 1994)
(explaining that although the Occupational Safety and Health
Act contemplated that the Secretary of Labor would
promulgate specific safety standards, such regulations could
only “amplify and augment” the statute’s general duty clause
and their absence did not “displace” the statutory mandate to
provide a safe workplace).
Third, existing regulations do require accessible on-street
parking. Two regulations in particular apply to public on-
street parking. The first is 28 C.F.R. § 35.150, which applies
8 FORTYUNE V. CITY OF LOMITA
to all existing facilities.3 Pursuant to this regulation, public
entities must “operate each service, program, or activity so
that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals
with disabilities.” 28 C.F.R. § 35.150(a). Because the
provision of public on-street parking is a “service, program,
or activity,” 28 C.F.R. § 35.150(a) applies to it. Under the
regulation, however, public entities have some flexibility in
handling existing inaccessible facilities. For instance, they
are not required to make structural changes to all existing on-
street parking facilities if they can make public on-street
parking accessible by other means, such as by providing
accessible on-street parking at other nearby sites. 28 C.F.R.
§ 35.150(b)(1); cf. Cohen, 754 F.3d at 697 (noting that in
order to comply with 28 C.F.R. § 35.150, a public entity may
require disabled individuals to “take a marginally longer
route” (internal quotation marks omitted)). But, at bottom,
the regulation mandates program accessibility for all normal
governmental functions, including the provision of on-street
public parking.
The second regulation, 28 C.F.R. § 35.151, governs only
facilities that were constructed or modified after the ADA’s
3
The regulations define the term “facility” as “all or any portion of
buildings, structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real or
personal property.” 28 C.F.R. § 35.104. The United States Department
of Justice (“DOJ”), in its amicus brief, argues that on-street parking areas
are facilities because they constitute parking lots or portions of the road.
We need not address these arguments because, if nothing else, on-street
parking areas qualify as “other real . . . property.” See Black’s Law
Dictionary 1412 (10th ed. 2014) (defining “real property” as “[l]and and
anything growing on, attached to, or erected on it, excluding anything that
may be severed without injury to the land”).
FORTYUNE V. CITY OF LOMITA 9
effective date. Unlike 28 C.F.R. § 35.150, it requires that
“each facility” constructed or altered after June 26, 1992 be
“readily accessible to and usable by individuals with
disabilities.” 28 C.F.R. § 35.151(a)(1), (b)(1). By its terms,
then, this regulation extends to newly constructed or altered
on-street parking facilities. The City seeks to avoid this
conclusion by pointing out that the technical specifications
governing newly constructed or altered facilities are silent
with respect to on-street parking. In addition to the general
mandate of accessibility set forth in subsections (a)(1) and
(b)(1), 28 C.F.R. § 35.151 also requires that newly
constructed or altered facilities meet the technical standards
set forth in the Uniform Federal Accessibility Standards
(“UFAS”), the 1991 Standards for Accessible Design (“1991
Standards”), or the 2010 Standards for Accessible Design
(“2010 Standards”). See id. § 35.151(c).4 The UFAS, the
1991 Standards, and the 2010 Standards contain detailed
specifications for a range of different facilities, but none of
them address on-street parking.5 However, nothing in 28
C.F.R. § 35.151 suggests that when technical specifications
do not exist for a particular type of facility, public entities
have no accessibility obligations. In fact, such an
interpretation of the regulation cannot be reconciled with
subsections (a)(1) and (b)(1), which mandate that “each”
4
The UFAS is available at http://www.access-board.gov/guidelines-
and-standards/buildings-and-sites/about-the-aba-standards/ufas. The 1991
Standards are available at 28 C.F.R. § 36, App. D. The 2010 Standards
are available at http://www.access-board.gov/attachments/article/983/
ADAstandards.pdf. Which standard applies depends on the date of
construction or alteration.
5
They do contain specifications for parking lots and parking structures.
See UFAS §§ 4.1.1, 4.6; 1991 Standards §§ 4.1.2, 4.6; 2010 Standards
§§ 208, 502.
10 FORTYUNE V. CITY OF LOMITA
newly constructed or altered facility be readily accessible.
Therefore, we read 28 C.F.R. § 35.151 to require that all
public on-street parking facilities constructed or altered after
the ADA’s effective date be accessible.
Our interpretation of 28 C.F.R. § 35.151 is also consistent
with the DOJ’s interpretation. The DOJ issues a Technical
Assistance Manual (“TA Manual”) to assist individuals and
entities to understand their rights and obligations under the
ADA.6 In a 1994 supplement to the TA Manual, the DOJ
offered the following guidance on complying with 28 C.F.R.
§ 35.151 when neither the UFAS nor the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (“ADAAG”)7 contained specifications for a type of
facility:
In such cases the technical requirements of the
chosen standard should be applied to the
extent possible. If no standard exists for
particular features, those features need not
comply with a particular design standard.
However, the facility must still be designed
6
The TA Manual for Title II of the ADA is available at
http://www.ada.gov/taman2.html.
7
The ADAAG contains the Architectural and Transportation Barriers
Compliance Board’s (“Access Board”) proposed accessibility. By statute,
the Access Board sets the floor for the DOJ’s ADA regulations. 42 U.S.C.
§ 12134(c). The ADAAG itself, however, is not one of the technical
specification standards listed in 28 C.F.R. § 35.151(c). The 1994
supplement to the TA Manual likely refers to the ADAAG because, even
though as a general matter the ADAAG does not define the governing
accessibility standards, the 1991 Standards adopted the ADAAG in full.
See 28 C.F.R. § 36, App. D.
FORTYUNE V. CITY OF LOMITA 11
and operated to meet other title II
requirements, including program accessibility.
1994 Supplement to TA Manual, II-6.2100 (citation
omitted).8 Moreover, the DOJ’s amicus brief also sets forth
this interpretation of 28 C.F.R. § 35.151.
An agency’s interpretation of its own regulations is
entitled to deference. Auer v. Robbins, 519 U.S. 452, 461
(1997). The DOJ’s interpretation of its ADA implementing
regulations is entitled to “‘controlling weight unless it is
plainly erroneous or inconsistent with the regulation.’”
Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir.
2008) (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945)). The TA Manual is such “‘an
interpretation[,] . . . and, as such, is entitled to significant
weight as to the meaning of the regulation[s].’” Id. (quoting
Disabled Rights Action Comm. v. Las Vegas Events, Inc.,
375 F.3d 861, 875–76 (9th Cir. 2004)). Additionally, an
agency’s interpretation of its own regulations as advanced in
an amicus brief is also entitled to deference. Chase Bank,
USA, N.A. v. McCoy, 131 S. Ct. 871, 880–82 (2011); Auer,
519 U.S. at 461. Accordingly, even if we had doubts about
the applicability of 28 C.F.R. § 35.151 to facilities for which
no technical specifications exist, we would be bound to defer
to the DOJ’s interpretation of the regulation because it is not
“plainly erroneous or inconsistent with the regulation.”
Miller, 536 F.3d at 1028 (internal quotation marks omitted).
The City contends that another DOJ publication, an
informal guidance publication entitled “ADA Guide for Small
8
The 1994 supplement to the TA Manual is available at
http://www.ada.gov/taman2up.html.
12 FORTYUNE V. CITY OF LOMITA
Towns,” supports its position.9 That publication states only
that “[t]he ADA Standards have technical requirements for
parking lots and garages but no technical requirements for the
design of on-street parking.” ADA Guide for Small Towns,
Part II.A. This statement does not support the City’s
argument that public on-street parking need not be accessible;
it provides only that no technical specifications exist for
public on-street parking facilities.
The City also points to certain text in “Using ADAAG,”
a 2003 Access Board technical bulletin, that supposedly
stands for the proposition that public entities have no
obligations under the ADA absent specific technical
guidelines.10 But like the “ADA Guide for Small Towns,”
“Using ADAAG” does not actually advance such a position.
The text the City relies on merely states that “[t]he DOJ and
[the Department of Transportation] rules describe all of the
ADA obligations of covered entities arising from titles II and
III of the [ADA].” Access Board, “Using ADAAG,” 1
(2003).11 This statement says nothing about how the DOJ
regulations apply to facilities for which no specifications
exist. Furthermore, later in the bulletin, the Access Board
explains that when there are “no provisions in ADAAG for a
facility type, element, or feature,” such facilities are
9
The ADA Guide for Small Towns is available at
http://www.ada.gov/smtown.htm#anchor12335.
10
At the time the parties submitted their briefs, “Using ADAAG” was
available on the Access Board’s website. Since then, this document has
been removed from the website.
11
The Department of Transportation is responsible for administering
certain provisions of the ADA not at issue in this case. See, e.g.,
42 U.S.C. §§ 12149, 12164.
FORTYUNE V. CITY OF LOMITA 13
nevertheless subject to other ADA
requirements, including the duty to provide
equal opportunity. In many cases it will be
feasible to provide access by incorporating
basic elements specified in ADAAG, such as
ramps and other parameters of an accessible
route. . . . [I]n new construction and
alterations, a reasonable number, but at least
one of each type of element should be
designed to be accessible.
Id. at 8. Accordingly, the Access Board, like the DOJ,
understood the ADA to impose general accessibility
requirements on public entities even in the absence of
technical specifications for a particular facility. Moreover,
even if the bulletin did support the City’s position, the Access
Board’s understanding of the ADAAG is not entitled to any
deference. See Miller, 536 F.3d at 1031 (“Whatever the
Access Board thought of its own guidelines, the Department
of Justice adopted the text of the guidelines themselves, not
the Access Board’s interpretation of that text.”).
Nor are we persuaded that the City should be exempted
from the general mandate of the ADA and its implementing
regulations simply because the Access Board has proposed
guidelines that do contain technical specifications for on-
street parking.12 We have previously interpreted existing
regulations to require certain accommodations even when the
Access Board was in the midst of addressing the specific
issue before us. See Or. Paralyzed Veterans of Am. v. Regal
12
See Access Board, Proposed Accessibility Guidelines for Pedestrian
Facilities in the Public Right-of-Way (July 26, 2011),
http://www.access-board.gov/attachments/article/743/nprm.pdf.
14 FORTYUNE V. CITY OF LOMITA
Cinemas, Inc., 339 F.3d 1126, 1132–33 (9th Cir. 2003)
(deferring to the DOJ’s interpretation of how a regulation
applied in an unanticipated situation without reference to
ongoing Access Board rulemaking); id. at 1133–34
(Kleinfeld, J., dissenting) (emphasizing that the Access Board
had promulgated directly on-point proposed guidelines). We
see no reason to conclude otherwise here.
Finally, the City’s due process argument is unavailing.
The City contends that because it was not on notice that
accessible on-street parking was required until, at the earliest,
the DOJ’s amicus brief in this litigation, allowing Fortyune’s
claims to proceed would violate its right to due process.
Entities regulated by administrative agencies have a due
process right to fair notice of regulators’ requirements.
United States v. AMC Entm’t, Inc., 549 F.3d 760, 768–70 (9th
Cir. 2008). Here, however, the DOJ made it known in 1994,
in a publicly available supplement to the TA Manual, that
public entities have a general obligation to ensure that
governmental services are reasonably accessible even when
no technical specifications exist for a particular type of
facility. 1994 Supplement to TA Manual, II-6.2100. In
AMC, we recognized that a significantly less public
announcement—the filing of an amicus brief in separate
litigation—could provide adequate prospective notice of
prohibited conduct. See id. at 770. Consequently, it is simply
untrue that the City lacked notice that the ADA’s general
mandate applied even absent technical specifications.13
13
Any further consideration of the City’s due process argument would
be premature because due process constrains the remedies that may be
imposed. See AMC, 549 F.3d at 768–70. If Fortyune prevails, when
crafting a remedy, the district court will have to consider carefully what
FORTYUNE V. CITY OF LOMITA 15
IV. CONCLUSION
The text of the ADA, the relevant implementing
regulations, and the DOJ’s interpretation of its own
regulations all lead us to conclude that public entities must
ensure that all normal governmental functions are reasonably
accessible to disabled persons, irrespective of whether the
DOJ has adopted technical specifications for the particular
types of facilities involved. Accordingly, we hold that
Fortyune has stated claims under the ADA and the CDPA14
based on the City’s alleged failure to provide accessible on-
street diagonal stall parking.
AFFIRMED.
level of accessibility the City should have known was legally required for
diagonal stall on-street parking. See id.
14
A violation of the ADA constitutes a violation of the CDPA. Cohen,
754 F.3d at 701; Hubbard v. SoBreck, LLC, 554 F.3d 742, 745 (9th Cir.
2008); Cal. Civ. Code § 54(c).