Opinion
CASE NO. 8:01CV259
April 28, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter is before the Court for findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52, following a trial to the Court on April 22, 2003. The Court has considered all of the evidence, including all exhibits and oral stipulations. The Court has also considered the trial briefs (Filing Nos. 61, 66) and the parties' proposed findings of fact and conclusions of law.
STATEMENT OF THE ISSUES
At the close of the Plaintiff John Krumel's case, the Defendant, City of Fremont ("Fremont"), moved to dismiss Krumel's claim based on § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Fremont argued that, assuming its sidewalks are a city program, service or activity pursuant to § 504, the sidewalks do not receive any federal financial assistance and, therefore, Krumel did not present a prima facie case. Counsel for Krumel candidly conceded that the sidewalks in question are not federally funded. The Court granted the motion and dismissed Krumel's claim based on the Rehabilitation Act.
Fremont also moved to dismiss Krumel's claim based on Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. Fremont conceded that, for purposes of the motion, Krumel is an individual with a disability pursuant to the meaning of the ADA. Fremont argued, however, that Krumel failed to present evidence to satisfy the remaining two prongs of his prima facie case: (1) the existence of a city service, program or activity, and (2) the denial of the benefits of such service, program or activity because of Krumel's disability. The Court denied Fremont's motion to dismiss as it related to the ADA.
The remaining issues, therefore, are (1) whether Fremont sidewalks are a service or program under Title II of the ADA, and (2) whether Fremont discriminated against Krumel because of his disability, in violation of Title II of the ADA. For the reasons stated below, the Court finds that the Fremont sidewalks in question are a service or program under the ADA, but that Fremont did not discriminate against Krumel because of his disability.
FINDINGS OF FACT
Krumel has resided in Fremont, Dodge County, Nebraska, in his present home at 1505 East 1st Street, since 1980.
Fremont is a political subdivision of the State of Nebraska. According to the 2000 census, Fremont has a population of 25,174; with 10,171 households and 6,672 families. According to the United States Census Bureau, Fremont has a total area of 7.4 square miles of land. Fremont has approximately 150 miles of sidewalk.
In Fremont, including Krumel's immediate neighborhood, individual real estate owners also own the sidewalks on their real estate and are responsible for the installation and maintenance of the sidewalks. Fremont owns and maintains the sidewalks along properties owned by political subdivisions, parks and schools. Residential sidewalks in Fremont are at least four feet wide, and sidewalks in the downtown area are about ten feet wide.
Fremont city funds are not ordinarily expended for the maintenance of privately-owned sidewalks. If a complaint is received by the Fremont Department of Public Works regarding sidewalk maintenance, the Department issues a repair notice to the property owner. If the owner does not make the necessary repair, the Fremont City Council may order that the repair to be completed at Fremont's expense, with the cost levied as a lien on the property.
Fremont has several ordinances which, according to Timothy Mullen, Chief of the Fremont Police Department, might be used when citing an individual for obstructing a sidewalk. (Ex. 113.) Fremont City Code 8-601, specifically prohibits the obstruction of sidewalks. The ordinance provides in relevant part:
It is . . . unlawful for any person to place or leave or permit to be placed or left with his consent, within or across any . . . sidewalks or across where one would be located if and when constructed, . . . any barricade or any other article or thing whatsoever which in any manner interferes or obstructs with [sic] the public use or travel of or on any such . . . sidewalk or pathway where a sidewalk would be located if and when constructed, or any part of the aforesaid.
(Ex. 113.)
Chief Mullen testified that the police department enforces city ordinances. If a complaint were received by the Fremont Police Department that a sidewalk was obstructed, an officer would first visit the location and try to obtain voluntary compliance. If unsuccessful, a ticket would be issued for a court date. A ticketed individual has the right to a trial, and the elements of the ticketed offense must be proved beyond a reasonable doubt.
Krumel has multiple disabilities. He lost his left eye in an accident in 1945. He lost sight in his remaining right eye due to retinitis pigmentosa, and is now blind. (Ex. 118, Deposition of Gregory Haskins, M.D., Opthalmalogy.) Krumel also has a hearing loss and wears a hearing aid. He has lost much of the tactile sense in his hands and fingers; suffers from a very poor sense of balance; and appears to suffer from general disorientation. There was also a suggestion that Krumel suffers from epilepsy. (Exs. 1, 2, 3.) Krumel was most recently employed as a janitorial worker in 1980. His hobbies are woodworking and gardening.
Krumel lives alone and functions with the help of his family, friends and social service agencies. Krumel's son, Dennis, and his daughter-in-law, Marilyn, live seven blocks from Krumel's home. Krumel's other son and his family also live in Fremont, about 10 blocks from Krumel's home. Krumel is also assisted by Rachel Jensen, a next-door neighbor, and by Raymond Bechtel, a friend and neighbor.
Krumel has made use of Fremont sidewalks for exercise and to visit his neighbors and family members. In the past, he used the sidewalks for access to a grocery store, but the store has relocated beyond walking distance. Krumel is independent and he prefers to walk with a white cane without personal assistance.
Robert Leslie Newman testified as an expert witness. Newman, who is blind, has worked since November 1973 for the Nebraska Commission for the Blind and Visually Impaired. Newman instructs blind people in the use of the white cane, a key tool for ambulation. Newman testified that using a white cane essentially extends one's tactile sense and enhances one's auditory sense. Newman demonstrated the proper use of the white cane, explaining that one should hold the cane in front and at the mid-point of one's body, arcing it from left to right extending about two strides, allowing for sufficient reaction time if an obstacle is encountered. The cane has a metal tip which, together with one's auditory sense, provides additional data to the user regarding obstacles and ground surfaces. Newman testified that the user of a white cane generally is taught to walk down the middle of a sidewalk. He noted, however, that some people who have difficulty walking in a straight line may develop a preference for walking along the edge of the pavement — a practice referred to as "shorelining." Newman stated that blind people with hearing impairments may also have balance impairments and may tend to drift when walking.
Krumel has received training in the proper use of the white cane. Because of his multiple disabilities, he has developed a preference for "shorelining" along the edge of the sidewalk. When Krumel uses the edge of the sidewalk as a guide, his arm and shoulder extend over the edge of the sidewalk. (Ex. 116.) Even when "shorelining," Krumel has difficulty staying on the sidewalk due to his disabilities related to balance and orientation. At times, he walks on the grass, and on occasion he has wandered into driveways or backyards.
In approximately 1998, the U.S. Postal Service began an effort to have home owners move their mailboxes from their houses to the sidewalk or curb area to reduce mail delivery time and expense. Postal regulations provide for curbside, sidewalk or central delivery to residential areas consisting of separate homes. (Ex. 105.) The postal service wrote to residents asking for their voluntary cooperation with that effort. As a result, a number of mailboxes in Fremont were installed in residents' yards, facing toward the sidewalks. The evidence showed that such mailboxes were placed along the sidewalk on the edge closer to the house, rather than the edge closer to the street. All mailbox posts were set back from the sidewalk, although some were set back farther than others.
Fremont does not require that certain types of mailboxes be used by Fremont's postal customers in order to receive their mail.
Some mailboxes located close to Fremont sidewalks provided Krumel with useful landmarks. As more and more mailboxes were placed close to the sidewalks, however, Krumel was discouraged from walking on the sidewalks because he tended to bump into the boxes.
In 1998, Marilyn Krumel contacted Bob Warner, a Fremont City Council member, raising concerns about mailbox placement. Pursuant to Warner's request, Ms. Krumel provided him with a list of nine addresses where she believed the mailboxes presented a problem for her father-in-law.
Krumel's mailbox concern was referred by the City Council to the Development and Improvement Committee ("D and I Committee" or "Committee"), a subcommittee of the City Council. Marilyn Krumel appeared before the Committee, seeking a solution. When asked if placing mailboxes two feet back from the sidewalk would suffice, she agreed that it would alleviate the problem.
On January 5, 1999, Donald B. Edwards, the Mayor of the City of Fremont, sent an informal written notice to certain property owners along Krumel's route in an attempt to obtain the property owners' voluntary compliance. The letter stated, in relevant part:
The City has received complaints about mailboxes extending over a portion of the public walk. The mailbox located at Address extends over the public sidewalk and thereby creates an obstruction to the use of the public sidewalk. Therefore, the City is requesting your cooperation.
The mailbox needs to be relocated so that all portions of the box and all portions of the supports are at least two (2) feet back of the public sidewalk. If the box is located next to a walk leading to the house or driveway, the post office would like the box to face west. The City is requesting that the boxes be relocated when weather permits, but no later than May 1, 1999.
(Ex. 106.)
On August 8, 2000, the U.S. Postal Service sent a letter signed by Gayle Lorett, Postmaster for the Central Plains District in Fremont, Nebraska, to postal customers in Fremont which stated, in pertinent part:
The Postal Service is facing rapid changes in the delivery of your mail. These changes Focus [sic] on the cost, efficiency, and accuracy of the delivery of mail.
We are converting areas with house to house door delivery in Fremont, to delivery by Means [sic] of boxes at the sidewalk or on the curb. Your area will be sidewalk delivery.
. . . . The decision to move mailboxes is based solely on economical reasons. . . .
We are asking that you place a mail receptacle out at the public sidewalk in front of your home. The front of the box should be set two feet inside of the walk in front of your home. The bottom of the box should be no less than 36" high and not higher than 42", and set back one foot from the edge of the sidewalk to the front of the box.
We are requesting that you place the receptacle at the sidewalk within 30 days of the receipt of this letter.
(Ex. 110 (emphasis added).)
On August 11, 2000, Marilyn Krumel wrote to Jack Sutton, City Administrator, stating that an attached list of addresses still had mailboxes that presented a problem for her father-in-law. (Ex. 116.)
After receiving Ms. Krumel's letter, Clark Boschult, the Director of Public Works for the City of Fremont, sent a form letter on August 31, 2000, to a list of residents (Ex. 108) who had not yet moved their mailboxes, in an effort to obtain their cooperation. Although Boschult wrote the letters, they were signed by Chief Mullen, because the D and I Committee decided that the mailbox issue should be handled through enforcement of the city code. Although Chief Mullen signed the letters, he had not made any determinations that the addressees actually obstructed the sidewalks. ( See, e.g., Ex. 107.) Because the August 8, 2000, postal service letter's reference to a set-back of both "two feet" and "one foot" was confusing, Boschult adopted the standard of two feet to ensure compliance with the postal service's request.
The August 31, 2000, letters signed by Chief Mullen stated, in relevant part:
The City has received complaints about mailboxes extending over a portion of the public walk. The mailbox located at [Address] extends over the public sidewalk and thereby creates an obstruction to the use of the public sidewalk. Therefore, the City is requesting your cooperation.
The mailbox needs to be relocated so that all portions of the box and all portions of the supports are at least two (2) feet back of the public sidewalk. If the box is located next to a walk leading to the house or driveway, the post office would like the box to face west. The City is requesting that the boxes be relocated when weather permits, but no later than October 1, 2000.
( See, e.g., Ex. 107.)
The standard of two feet came only from documents received from the U.S. Postal Service when the issue of relocating mailboxes first arose and not from any city ordinance.
Chief Mullen acknowledged that a resident receiving his August 31, 2000, letter might assume that the letter required correction of a situation previously determined by Fremont to be an obstruction. Chief Mullen testified, however, that he did not inspect the properties in question before sending the letters. Chief Mullen understood that the letters prepared by the Public Works Department's requested that the addressees move their mailboxes, and he signed the letters in reliance upon and in the spirit of cooperation with the Public Works Department.
Bob Warner, Chair of the D and I Committee and councilman for the Krumels' district, requested that the matter be presented to the City Council at a public meeting on September 12, 2000, because a question arose as to whether Fremont had the authority to ask for relocation of mailboxes that residents did not believe obstructed the sidewalk.
The mailbox issue was referred from the City Council back to the D and I Committee for review in light of information presented to the City Council. The issue was placed on the November 21, 2000, D and I Committee agenda. (Ex. 102.)
Fremont's city attorney reviewed the matter and provided advice to the D and I Committee. In light of this communication, the Committee determined that a mailbox would have to hanging over the sidewalk before Fremont would ask the police department to take action under the city code section relating to obstruction of sidewalks. The determination did not result in any amendment to the city code.
On March 18, 2003, Chief Mullen took pictures of residences listed by the Fremont city attorney. (Ex. 114.) Although the pictures were taken for purposes of this litigation, Chief Mullen testified that none of the mailboxes in the pictures hung over the sidewalk or violated city ordinance 8-601. Chief Mullen testified that he is unaware of any mailboxes in Fremont which hang over the public sidewalks.
There was no evidence that any portion of any mailbox in the City of Fremont hangs over any sidewalk, except when the door to the box may be left open. When some mailbox doors are open, the doors may hang over the sidewalk approximately six to eight inches. The evidence shows that the only time when residents were asked to leave their mailboxes open was when there was an alert for the possibility of bombs being placed in mailboxes.
Fremont has taken action with respect to other requests from disabled people seeking full access to sidewalks. For example, the D and I Committee asked residents to change the time they used their sprinklers, to accommodate a blind woman who walked with her seeing eye dog between 10:00 and 11:30 a.m., because the dog would lead her into the street when the sprinklers reached the sidewalk. Fremont also ordered sidewalks to be installed by commercial property owners to accommodate a person traveling by electric wheelchair. Curb cuts have been installed in existing Fremont sidewalks at Fremont's expense to accommodate persons using motorized wheelchairs. In newly constructed sidewalks, curbs have been eliminated at crossings.
CONCLUSIONS OF LAW
The following constitute the Court's conclusions of law.
This Court has jurisdiction of this matter under 28 U.S.C. § 1331.
Venue is proper pursuant to 28 U.S.C. § 1391.
The City of Fremont is subject to the laws of the United States of America, including the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213.
Title II of the ADA provides: "[N]o 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.
In order to show a violation of Title II of the ADA, Krumel must show: 1) he is a "qualified individual" with a "disability"; 2) he was excluded from participation in or denied the benefits of a public entity's services, programs or activities, or otherwise discriminated against because of the disability; and 3) the exclusion, denial of benefits or other discrimination was due to the disability. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998).
Cases interpreting the standards and definitions used in the Rehabilitation Act of 1973, 29 U.S.C. § 794, may also be used interchangeably in interpreting the ADA. Allison v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996).
The ADA defines a "qualified individual with a disability," in relevant part, as one with a disability who meets essential eligibility requirements for the receipt of services or participation in programs or activities provided by a public entity. 42 U.S.C. § 12131(2).
Krumel is a "qualified individual with a disability" as defined by the ADA, because of his blindness, his hearing loss, his diminished tactile sense, and his poor balance. In addition to his physical disabilities he exhibited a general disorientation at the time of trial, and he may suffer from epilepsy.
The City of Fremont is a "local government", and therefore meets the definition of a "public entity" under the ADA. 42 U.S.C. § 12131(1).
The Rehabilitation Act defines "program or activity" as "all of the operations of" a qualifying local government. 29 U.S.C. § 794(b)(1)(A). The legislative history of the ADA indicates Congress's intent to extend the anti-discrimination prohibition embodied in the Rehabilitation Act to all actions of state and local governments. H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367.
The ADA was enacted to remove society's historical barriers to disabled persons "in such critical areas as . . . transportation . . . and access to public services," as well as removal of "the discriminatory effects of architectural, transportation, and communication barriers. " 42 U.S.C. § 12101(a)(3) (5).
Sidewalks in front of residential homes, over which the City of Fremont has assumed law enforcement jurisdiction to ensure unobstructed public use, are a "service, program or activity" within the meaning of Title II of the ADA. Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir.), petition for cert. filed, 71 U.S.L.W. 3400 (U.S. Nov. 25, 2002) (No. 02-815). In so deciding, this Court gives weight to the legislative intent underlying the ADA, and to the judicial interpretation of curb cut regulations. Cf. Ability Center of Greater Toledo v. City of Sandusky, 133 F. Supp.2d 589, 591-92 (N.D. OH 2001) (interpreting 28 C.F.R. § 35.150 and -.151, and concluding that the city's failure to install curb ramps properly on sidewalks violated Title II of the ADA); Simpson v. City of Charleston, 22 F. Supp.2d 550, 554 (S.D.W. Va. 1998) (interpreting 28 C.F.R. § 35.150(d)(2), which implements the ADA with regard to curb ramps, and finding that although sidewalks were owned by property owners the city had authority over sidewalks for purposes of Title II of the ADA). In addition, the Court looks to regulations promulgated to aid in the prohibition of discrimination on the basis of disability by public accommodations and commercial facilities, which regulations specifically refer to "sidewalks." 28 C.F.R. § 36.304(c)(1) (2003); 28 C.F.R. § 36.403(e)(1) (2) (2003).
The evidence showed no obstruction of Fremont sidewalks or the airspace above the sidewalks due to the placement of mailboxes. Nevertheless, Fremont acted upon Krumel's assertion that certain mailboxes interfered with his use of the sidewalks and Fremont took reasonable measures within its power to try to accommodate Krumel. Fremont City Code 8-601 specifically relates to the obstruction of sidewalks, and the evidence indicates that the Fremont Police Department will enforce the ordinance if a complaint is made and substantiated.
Krumel is not "excluded from participation in or . . . denied the benefits of the [Fremont] services, programs or activities . . . or . . . subjected to discrimination" by Fremont in relation to use of public sidewalks, within the meaning of Title II of the ADA. 42 U.S.C. § 12132. Krumel's myriad of disabilities does make it more difficult for him to use and enjoy Fremont sidewalks. No doubt, Krumel's lack of balance and disorientation may cause him to bump into objects, including those which are near sidewalks, and may cause him to detour from the sidewalks altogether. Relocating mailboxes farther from the sidewalks, or turning the boxes parallel to the sidewalks, might broaden Krumel's path and reduce his hazards to a degree. This Court cannot conclude, however, that Fremont has any obligation under the ADA to clear a wider swath for Krumel than is now provided by the unobstructed sidewalks which measure at least four feet across. Fremont sidewalks provide an accessible path for the visually-impaired who use the preferred method of cane travel down the middle of the sidewalk. They also provide an accessible path for the visually-impaired who may have additional disabilities and who have developed a preference for "shorelining" along the edge of the sidewalk, with an arm or shoulder extending over the sidewalk's edge. A person using the "shorelining" technique need only move to the edge of the sidewalk closer to the street to avoid contact with mailboxes placed near the interior edge of the sidewalk.
Having found no violation of the ADA, the Court will not address the issue of whether Fremont in fact has any legal authority to relocate the privately-owned mailboxes which are located on privately-owned real estate, or to require the owners to move the mailboxes.
CONCLUSION
For the reasons stated above, the Court finds that judgment should be entered against the Plaintiff, John Krumel, and for the Defendant, City of Fremont. A separate Judgment will be entered.