Disability lawsuit to proceed over beach access

A federal judge has declined to dismiss a federal civil rights lawsuit claim that the City of San Diego is denying access to the physically disabled by not providing an ADA compliant ramp to a local beach.

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The La Jolla’s Children’s Pool is a small beach in San Diego, California partially protected by a seawall. Built in 1931, it is surrounded by natural sea life and an amazing destination for locals residents. But, sadly, the pool is not accessible to disabled and wheelchair-bound San Diegans because a ramp that used to go to the water has been shut down. The only way to get to the beach is a steep set of stairs which disabled residents say they cannot access without assistance.

Andrew Field, interim Parks and Recreation director, has admitted that the closed ramp is only for emergency and maintenance access to the beach and is not intended to provide an ADA accessible pedestrian path to the beach. The city said it has plans to build a comfort station on the upper level which will include an accessible shower but disabled residents say it is ridiculous to think they will need to shower after swimming when they can’t even reach the pool.

Cheri Jacobs Aspenleiter, a disabled resident, told a local media outlet that the Children’s Pool is one of the only safe places for children or the disabled to go into the water as it is sheltered from the pounding surf. She said that the original benefactress of the pool, Ellen Browning intended for it to be used by children and the disabled.

“I think she’s turned over in her grave and I think she’s very disappointed in the city of San Diego for not honoring her trust,” she said.

Disabled Pool Stairs

Enter paraplegic swimmer Jack Robertson who filed a lawsuit in June of 2013 with the hopes of getting an ADA-compliant access ramp installed.  At the age of 19, Robertson was a passenger in the back of a vehicle without seat belts that was involved in a crash. He was paralyzed from the chest down. The complaint filed against the City of San Diego charged the City with violating the Americans with Disabilities Act for not providing a safe path of travel for those with disabilities.

I had made a request through the City of San Diego for a beach access ramp to be incorporated into the current major remodel at Children’s Pool (lifeguard tower). My request was denied,” Robertson told La Jolla Light. That denial prompted his legal action.

In his complaint Robertson states in part:

The only method of access from the public streets and right of way to the La Jolla Children’s Pool beach is by a flight of stairs. There is no accessible path of travel for persons with disabilities. Each time that the plaintiff has swum at the Children’s Pool, he has been bodily carried down the stairs by others.

“This is scary, frustrating, discomforting, embarrassing and difficult. Additionally, the plaintiff is unable to independently gain access to the beach. The lack of access and the inaccessible paths of travel have precluded the plaintiff from enjoying the Children’s Pool beach on a full and equal basis.”

“The defendants have not provided full and equal access to the public paths of travel and Children’s Pool beach and have not complied with access standards under Title II of the ADA and, in fact, have violated the plaintiff’s rights under the ADA to programmatic access.”

Jack Robertson ADA San Diego Pool wheelchair

In response to the lawsuit, the City argued that adding a disabled ramp would destroy the historic integrity of Children’s Pool claiming that “installation of an accessible path of travel, including and accessible ramp for a mobility- impaired person, would threaten or destroy the historical significance of children’s Pool beach.” Adding that an access ramp “would cause direct and indirect adverse effect and significant impact to the character-defining features and historic integrity of Children’s Pool.”

According to a report  published in the San Diego Tribune, Robertson’s attorneys say they submitted design plans for a possible ramp and suggested three possible locations. But, the city’s experts, a historian and an engineer, said each of those proposals would damage the beach’s historical character.

The City then attempted to end the litigation and moved for summary judgement based on the historicity argument.  But, U.S. District Judge Thomas Whelan denied their claim ruling that the city needed to have a State Historic Preservation Officer endorse its position rather than the experts it hired. In his Sept. 30 ruling to deny the City’s motion for summary judgment, Judge Whelan wrote that the City’s experts improperly dismissed the possibility that alternate methods could work, writing:

“Even if Robertson’s plan would threaten or destroy the site’s historical significance, it does not follow that any other means by which to make the Children’s Pool ‘readily accessible to and usable by individuals with disabilities’ would necessarily do the same.” 

The city attorney’s office has stated that said San Diego intends to continue their fight and is ready to go to trial.

Suggested reading: Public entities beware, ADA compliance is in your best interest.

(NOTE: Accessology is committed to helping Cities, Counties and other public as well as private entities become fully compliant under the Americans with Disability Act (ADA). Accessology offers expert consultation services to develop ADA compliant Transition Plans required for Title11 entities under the ADA. If you would like more information, please visit our website at http://www.accessology.com)

 

 

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