Metropolitan News-Enterprise


Friday, August 14, 2009


Page 3


Court Rejects Sight-Impaired Riders’ Suit Against BART


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed a U.S. District Court judge’s decision requiring the Bay Area Rapid Transit system to improve the accessibility of some of its facilities to those with vision impairments.

A three-judge panel rejected two sight-impaired BART riders’ claim under the Americans with Disabilities Act because the system complies with existing federal design regulations for train station accessibility, which the panel said were not arbitrary and capricious.

Sheron George and Sharricci Fourte-Dancy sued the system over difficulty using stairs and the universal route that the BART claimed was designed and intended for blind and low-vision persons after George fell twice in the system’s stations and Fourte-Dancy nearly fell.

George—who had congenital cataracts rendering her legally blind, and has since died—said she had never attempted to use the universal routes, but alleged she would be able to use the stairs if they were painted or marked a different color to show the location of each step.

Fourte-Dancy, who had some sight but limited depth perception and peripheral vision, said she did not have the visual acuity necessary to locate a designated accessible route on her own and that elevators on the route were too isolated. She contended that she could use facilities “with a few minor modifications,” such as color contrast striping and accessible handrails.

In proceedings before Judge Claudia Wilken of the Northern District of California, both sides agreed that BART’s facilities complied with federal Department of Transportation regulations requiring each light rail station to have “at least one accessible route from an accessible entrance to those areas necessary for the use of the transportation system.”

DOT regulations are required by statute to be consistent with the ADA Accessibility Guidelines in effect at the time, which are issued by the Architectural and Transportation Barriers Compliance Board, an independent agency.

Nevertheless, Wilken found that the DOT regulations were “both arbitrary and plainly contrary to the statute” to the extent that they failed to fulfill the ADA’s mandate that public transportation programs be accessible to all patrons with disabilities by “failing to address the needs of those with visual impairments.”

A stipulated judgment required BART to pay attorney’s fees and costs, as well as $35,000 in compensatory damages, and the system was required to take seven specific steps to improve the accessibility of some of its facilities to those with vision impairments.

However, on appeal by BART and the federal government, Judge Diarmuid F. O’Scannlain wrote that “the DOT regulations are not arbitrary or capricious because the DOT did address the needs of those with visual disabilities, although perhaps not to the level the transit riders would have preferred.”

The judge said the regulations addressed the needs through a performance standard requiring facilities to be designed to minimize the distance which wheelchair users and other persons who cannot negotiate steps may have to travel compared to the general public, and through other features such as signs indicated the direction of the route using a wheelchair icon and typeface requirements, steps to minimize glare and tactile warnings placed near platform edges.

“It may well be sensible to require accessible handrails, contrast striping on stairs, and other such measures to promote accessibility,” he wrote. “However, it is not up to this court to decide what is reasonable or sensible in this regard; instead, our task is to ascertain BART’s legal obligations. Unless DOT regulations are arbitrary and capricious, BART is required to do no more than follow them.”

Judges Ronald M. Gould and Carlos T. Bea joined O’Scannlain in his opinion.

The case is George v. Bay Area Rapid Transit, 07-15661.


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