REPORT-R-949XX

11/22/2004 Ross
U.S. FHWA/DOT - Final Request for Response to Complaint - Path of Travel Access Violations - Town of Ross, Marin County, California

From:
rmskaff@comcast.net
To:
Brenda.Armstead@fhwa.dot.gov

Ms. Brenda Armstead
Director of Investigations and Adjudications
Federal Highway Administration
U.S. Department of Transportation
Office of Civil Rights
Washington, D.C

Ms. Armstead,

Based on Mr. Isler's suggestion, I forwarded the attached public right-of-way complaint to you for resolution. I have been out of the country speaking at the 14th Biennial of Architecture Conference in Quito, Ecuador. It was quite an experience. I was asked to participate in a 6 person panel of mayors (including the Mayor from Quito, Paris and a number of South and Central American cities) about city planning issues. I also presented a 2 1/2 hour PowerPoint presentation on state and federal access requirements in the United States to approximately 500 architects and government officials, much of the presentation having to do with the federal requirements for public entities to provide physical access within and through the public right-of-way. As the former Deputy Director of the Mayor's Office on Disability and prior to that, the Disability Access Coordinator for the San Francisco Department of Public Works since 1989, I have had a great amount of experience in the area of design within the public right-of-way. As further personal history, I have also been a member of the U.S. Access Board's Pedestrian Right-of-Way Access Advisory Committee during my tenure with San Francisco. I am not providing you this personal information to impress you, but to inform you of my expertise in the area of access and the public right-of-way.

You can see by the attached emails, the complaint I filed with the U.S. Department of Transportation is quite old and there has been no resolution/correction of the public right-of-way access violations that continue to exist in the Town of Ross, Marin County, California. In fact, the Ross Town Council sent a letter to the FHWA/DOT staff in the Sacramento Office asking for reconsideration of DOT's decision (the U.S. FHWA/DOT staff from Sacramento, with California DOT staff did a site review of the pedestrian facility in question and determined that the Town of Ross was in violation of federal accessibility regulations. A letter stating that position was sent to the Town of Ross with specific demands for correction of the Town's many right-of-way violations). At that point, I had hoped that by contacting Mr. Isler, FHWA's newly appointed Associate Administrator for Civil Rights, the complaint would be resolved in a timely fashion. To date, no resolution has occurred.

By the end of the week of November 29th, please inform me what, if anything, FHWA/DOT will be doing to enforce it's demand of compliance that was made to the Town of Ross and by what date FHWA/DOT will require the violations to be corrected. At this point, I'm not sure what my next step can be with FHWA/DOT in getting this complaint resolved. I do know, however, that if the agency won't take action, my next step will be legal action against the Town of Ross. If that becomes necessary, I will also be looking into what my legal options are with regard to FHWA/DOT.

Taking almost four years to get a complaint of this nature resolved is not acceptable!

Thank you.

Richard Skaff email: rmskaff@comcast.net
11/05/04

Mr. Isler,

I am re-sending the attached email to you directly. As you can see, I had originally sent it to the Civil Rights Division, FHWA.

Richard Skaff Email: rmskaff@comcast.net

----- Original Message -----
From: Richard Skaff
To: CivilRights.FHWA@fhwa.dot.gov
Cc: michael.winter@fta.dot.gov ; Mel Jarjoura
Sent: Sunday, October 31, 2004 7:52 PM
Subject: Fw: Lack of Access on Shady Lane and Other Access Complaints

October 31, 2004

Mr. Frederick D. Isler
Associate Administrator for Civil Rights
Federal Highway Administration
U.S. Department of Transportation
Office of Civil Rights
Washington, D.C

SUBJECT: ENFORCEMENT OF FEDERAL ACCESS REGULATIONS TO PUBLIC RIGHTS-OF-WAY BY FHWA/DOT

Mr. Isler,

I would first like to congratulate you on your appointment as Associate Administrator for Civil Rights in the Federal Highway Administration. As a newly retired public official who has spent the last fifteen years with the City of San Francisco as the Deputy Director of the Mayor's Office on Disability, I know something of the challenges and interesting experiences you will have in your new position. I wish you success in your new job.

I am writing to you to ask for your help in assuring that FHWA/DOT finally takes action to get an acceptable resolution on one of many public right-of-way accessibility complaints I have filed with your agency. The one complaint that I am forwarding to you is almost three years old and is still not resolved! As you can see by my email correspondence that I've attached below, one of my many correspondence to the Town of Ross in Marin County, California about the Shady Lane right-of-way complaint was sent in 2002. The original correspondence was in November, 2001. In April, 2003, I was contacted by a Ms. Rosalind McDaniel, California Department of Transportation, Civil Rights Investigator/Special Asst. to EEO Program Manager, Civil Rights - Office of Equal Opportunity, Discrimination Complaint Investigation Unit-1823 14th Street - MS79, Sacramento CA 95814 - Office Telephone (916) 324-8378, who indicated that the California Department of Transportation would be investigating my complaint. The email I have attached below, dated December 3, 2003, that went to the FHWA/DOT California office, was sent by me on December 3, 2003 after receiving a letter from Ms. McDaniel about the outcome of the Cal Trans Town of Ross investigation.

The latest response regarding my complaint came from FHWA/DOT which demanded that the Town of Ross not only update it's incomplete American's with Disabilities Act Transition and Self-evaluation plans to include Town controlled right-of-way accessibility issues such as curb ramps, ped signals, sidewalks, etc., but also demanded that a plan to correct the lack of pedestrian access in the Town of Ross for persons with disabilities be corrected. I'm sure your office has a copy of that letter. After receiving the letter from your office, the Ross Town Council decided to appeal the FHWA/DOT mandates (see the first attachment above which describes and summerizes 3 articles from the Marin County Independent Journal, a local newspaper) and since that time, no further actions by FHWA/DOT have taken place and the Shady Lane public pathway is still inaccessible.

Although I am bringing this particular case to your attention and asking for your help in getting resolution of it, I am also asking your help in getting resolution to the many other access complaints that I know have been sent by me and others with disabilities from across the Country to FHWA/DOT. It is quite clear, from those many unresolved cases, that the problems I have had in getting FHWA/DOT to take action in the Ross case are symptomatic of a larger problem-FHWA/DOT is apparently unable to protect our rights. I do hope that with the authority that goes with your new position, you can help assure that the disability community across America won't have to continue facing a lack of accessibility in the public right-of-way.

Please call me if you have any questions regarding this email.

Thank you.

Richard Skaff Email: rmskaff@comcast.net
_______________________________________
December 3, 2003

Federal Highway Administration
EOS Office
980 Ninth Street, Suite 400
Sacramento, California
I am sure that you are already aware of the findings by Cal Trans regardingthe complaint I filed about the lack of access for persons with disabilitiesalong the public right-of-way on Shady Lane in the Town of Ross, MarinCounty. Rosalind McDaniel, Civil Rights Investigator/Special Asst. to EEO Program Mgr.,
Civil Rights Office of Equal Opportunity, Discrimination Complaint, Investigation Unit,Cal Trans, called me to ask if I would agree to "sign-off" on what I believeshe called a settlement agreement. I was amazed to learn that the agreementhas nothing to do with my complaint, but deals with the lack of appropriateand accessible public notification of Town of Ross public meetings! Ms.McDaniel also informed me when asked that if I would not agree to sign thesettlement, Cal Trans would not provide me with any information about theirinvestigation of my complaint! So, it seems that almost a year has gone byand Cal Trans, based on information given them by the Town of Ross, that thenon-accessible dirt path parallel to Shady Lane and the only path-of-travelfor pedestrians, is the responsibility of the fronting property owners andnot the responsibility of the Town of Ross to make and maintain in anaccessible manner. Their investigation has determined that there is noviolation! That right-of-way is Town of Ross property which the Town has,by local ordinance, required the fronting property owners to maintain. Thatlocal policy doesn't remove the legal responsibility of maintaining thatpathway in an accessible fashion or liability if it isn't maintained by theTown of Ross. This investigation appears to indicate that Cal Transbelieves that the Town of Ross has no responsibility in assuring thatpersons with disabilities can either use the pathway along Shady Lane orcross Shady Lane at any of the cross streets that dead-end into Shady Lane.Nothing was said by Ms. McDaniel about the fact that the entire length ofShady Lane was resurfaced by the Town of Ross in the late '90s. I would greatly appreciate hearing from you at your earliest convenience asto what my next step with FHWA is with regard to this complaint. Do I haveany recourse or is this Cal Trans determination the final step FHWA will
take with regard to my complaint? Can you provide me with any of theinvestigation information or is that information confidential?

Richard Skaff

----- Original Message -----
From: Richard Skaff
To: lthomas@townofross.org
Sent: Monday, August 26, 2002 12:28 PM
Subject: Lack of Access on Shady Lane and Other Access Complaints
TO: Town of Ross, Mayor and Town Council and Mel Jarjoura, Director of Public Works

In November, 2001, I sent an email to you about the lack of an accessible route along Shady Lane in the Town of Ross. On January 11, 2002, I received a letter responding to my complaint from a Mr. Hadden Roth, apparently the Town Attorney, informing me that he had both driven and walked the length of Shady Lane and stated that the pathway along the side of Shady Lane is privately maintained by the adjacent property owners. I assume by Mr. Roth's statement that he is indicating that the Town of Ross holds no responsibility in assuring that Shady Lane is accessible for persons with disabilities.

It is my understanding that the Town of Ross, in the mid 90's, completely resurfaced the Shady Lane roadway, including the intersections crossing this roadway. It was at this time that the Shady Lane pathway and the pedestrian crossings at each intersection within the length of Shady Lane, should have been made accessible. Although the Town of Ross may require property owners to maintain the Shady Lane pathway in front of their properties, the Town of Ross must still take the underlying responsibility to assure that this Lane and the intersections crossing the Lane, are accessible to and useable by the public, including those of us with disabilities.

In April of 1999, after the settlement of a lawsuit that I brought against the Town of Ross, a contractor completed what the Town of Ross claims is their Federally mandated Transition/Self-evaluation Plan. After reviewing this Plan, it is apparent that not only has the Town of Ross failed to make those modifications to facilities and programs proposed by the Plan, but a number of Ross "public programs" such as sidewalks, walks (like Shady Lane), curb ramps, accessible on-street parking, pedestrian traffic signals and policies, including public rights-of-way policies were apparently not included as part of the Plan. Also, nowhere in the Plan am I able to determine the dates by which the Town of Ross public programs and facilities that are described in the Plan will become accessible (page 53 of the Self-Evaluation and Transition Plan, Section 5.3.1 Phasing Schedule, only provides a list project priorities). Additionally, as the original complainant against the Town of Ross, I have never been provided any information as to whether the Town of Ross has actually followed through with any of the suggestion made by the contractor who prepared the Town's Self-evaluation/Transition Plan. In my opinion, the Town's Plan has not only not been complied with, but is incomplete and does not meet the criteria laid out in the American's with Disabilities Act. As an example of the Town of Ross' failure to even comply with the suggestions in their Self-evaluation/Transition Plan, the following is a copy of the Town's web site. As you can see, there is no listing for a TTY which would allow a person who is deaf to call the Ross Town Hall. There is also no indication that the Town Hall is accessible nor does the web site provide the Plan-proposed "Public Meeting Notice" as described on page 17 of the Plan. Has the Town of Ross appointed anyone to act as the Town's ADA Compliance Coordinator as required by the ADA? Again, no one having that responsibility is listed on the Town's web site even though page 20 of the Plan states; "General Publicity and Advertising - Increased outreach to persons with disabilities is needed to inform the public of the possible modifications the Town is prepared to provide to make its services, programs and activities accessible." This page of the Plan goes on to say; "Recommendations - Improve communication and outreach to increase the participation of community members with disabilities/Ensure that all announcements and applications include: The notice of nondiscrimination, Information regarding site accessibility, the Town's text telephone (TDD/TTY) number, A notice that program information is available in multiple formats, The accessible bus route serving the program, and The phone number (and I presume TTY number) of the program person who can provide assistance in meeting special needs..."

At your earliest convenience, please have Town staff forward the Town's response to the Self-evaluation/Transition Plan proposed policies and indicate when the Plan will be corrected to include all necessary facilities and programs and schedule for each projects completion. For your information, by this email, I will be sending a copy of this email to the U.S. Department of Justice and the California Department of Justice as a formal complaint against the Town of Ross for it's lack of compliance with federal and state access codes/laws and regulations.

I look forward to your timely response. Please respond to my email address: rmskaff@attbi.com

Richard Skaff

Town of Ross
Address:
Town Hall 31 Sir Francis Drake BoulevardRoss, CA 94957-0320 Phone: (415) 453-1453Fax: (415) 453-1950Hours: 9:00 a.m. to 5:00 p.m.

Legal Status: General Law TownIncorporated: 8/20/1908
DEMOGRAPHICS1995 Estimated Population: 2,281

REPORT-SR-949XX

11/10/2004
From: rmskaff@comcast.net

Thought you might be interested in the response I just received to some of my coomplaints from the City of San Rafael, Marin County. Their document doesn't indicate when I filed the complaints.

Thanks for your efforts. If we can let enough of our community know about what you are doing, and cases come to you from across the Country, just think the effect that would have during the public hearings in Sacramento at the Capitol or in Washington during Congressional hearings on the 90 day legislation!

Richard Skaff
Email: rmskaff@comcast.net
~~~~~~~~~~~~~~~~~
November 10, 2004



Richard Skaff
Mill Valley, CA 94941

Re: Follow up on various ADA Complaints

Dear Mr. Skaff:

Thank you for your patience while the City of San Rafael could take the time to investigate and respond to a number of alleged ADA violations that you have raised over the past months. My latest correspondence denotes specific locations and the steps being taken to bring alleged ADA violations into compliance for some of the sites you have identified in previous e-mails. The table below summarizes the site location, the alleged violations, and our actions taken as of this writing.

Location
Alleged Violation(s)
Violation(s) identified by City
Property owner notification
Expected Compliance Date

Home Depot - 111 Shoreline Parkway
Restrooms in buildings being open; portable restrooms being full compliant, detectable warnings surfaces incomplete; non accessible parking spaces, no loading zones and non-compliant signage (tow info and telephone #); no van accessible spaces
Accessible spaces, cross slope, signage, detectable warning surfaces, Braille in restrooms
Letter sent to owner 11/5/2004
February 4, 2005

Sizzler - 3725 Redwood Hwy
Non-compliant signage (tow info and telephone #)
Signage, repainting accessible space
Letter sent to owner 11/5/2004
February 4, 2005

Grand Avenue Center - 777 Grand
No required van accessible parking or tow-away signage
Accessible spaces, space slopes, signage
Letter sent to owner 11/5/2004
February 4, 2005

Java Detour - 836 Second Street
New driveways don't have proper 2% cross slope; pedestrian walkway crosses vehicular lanes without detectable warning materials; tow away signs; accessible counters and workspace for employees and customers
Sidewalk slope; path of travel to walk up windows; landings; detectable devices; accessible space and signage; walk-up counter, exit door
Letter sent to owner 11/5/2004
February 4, 2005

CompUSA/Staples Center - 655 Irwin
Did not have required "van accessible" parking spaces/loading zones/signage, nor required phone number/address included on the "tow away" signs located at the entrance to each facility's parking lots.
Signage
Letter sent to owner 11/5/2004;

E-mail to Hattie Johnson at California Architects Board
February 4, 2005

Land Rover Site - Irwin Street
Did not have required "van accessible" parking spaces/loading zones/signage, nor required phone number/address included on the "tow away" signs located at the entrance to each facility's parking lots.
None - property is currently vacant
None to owner; e-mail to Hattie Johnson at California Architects Board
When new tenant application is approved

KFC - 555 Second Street
Kentucky Fried Chicken - next to 777 Grand Avenue - No tow-away sign and accessible parking space not properly marked
Signage
Letter sent to owner 11/5/2004
February 4, 2005

United Market and Gardens - 513 third Avenue
United Market and United Market garden store, between 3rd and Grand Streets - no van accessible parking spaces/signage as required
Accessible space, signage
Letter sent to owner 11/5/2004
February 4, 2005




Property owners are expected to have noted violations remedied by February 4, 2005 as noted above. Out Building Division staff is ready to assist any of these owners in achieving compliance remedies and barrier removal. Inspection of each site will be conducted to verify full ADA compliance.

Some of the other violations you have alleged (A& W Restaurant, Avance) are still under review. As our staff and ADA consultant compete their investigations, I will provide you the City's response and identify actions to be taken by said owners, if so warranted.

Thank you for your patience while other City staff and I looked into this matter. Please know that our response time has been delayed due to the unexpected death of our Chief Building Official last month. This position is currently vacant, and will likely remain so through the end of the calendar year while we complete a recruitment process.

Should you have any questions or concerns, feel free to contact me directly at 485-3055.

Sincerely,

Ken Nordhoff
Assistant City Manager
ADA Coordinator
Copy: Rod Gould, City Manager
Bob Brown, Community Development Director
Joe Curley, Supervising Building Inspector
Eric Davis, Deputy City Attorney

W:\City Managers- WorkFile\Correspondence\Nordhoff\Letters\2004\ADA-Access Complaints-rs #5.doc

REPORT-MV-949XX

11/07/04
Mr. Hunter, City Manager
City of Mill Valley
Mill Valley, Ca. 94941
Mr. Hunter,
To date, I haven't heard from you with regard to our recent phone conversation during which we discussed the remodel project at the Mill Valley Safeway located on Miller and Camino Alto. Yesterday, I did receive a letter from Mr. Aherns, the Mill Valley Building Official, along with my written complaint (written on your REQUIRED complaint form) indicating that the information I had provided on the form about my complaint regarding the Safeway was inadequate and incomplete. I would appreciate the opportunity to discuss Mr. Ahrens letter with you at your earliest possible convenience.As I explained in an earlier email sent to you today, I will be out of the Country from the 12th to the 22nd of November and would appreciate being able to discuss this complaint with you as I had been promised. As you will recall, I had contacted you a few weeks ago because during my review of the project permit documents at the Mill Valley City Hall, I found that the public bathrooms on the main floor had been closed for plumbing repair work but the general public was being allowed to use staff bathrooms on an inaccessible floor of the building while persons with mobility disabilities were provided an "accessible" portable toilet and sink at the front of the store (as you know, neither was accessible). There is still a problem with the fact that the general public has flush toilets and running water sinks to use while those of us with mobility disabilities have to use portable equipment that is certainly not "equivalent". This condition could possibly be acceptable for a VERY short time, but it seems that the plumbing repair project has now turned into a complete store remodel that has been in process for months and may take months more to complete! To assure that persons with disabilities would have sanitary facilities during the plumbing repair, I had to work with both Safeway and the portable toilet rental company to assure that a truly accessible portable toilet and sink were provided. Why did your Building Official approve the store remodel project permit without the necessary temporary facilities being included in the store's permit? Additionally, a new "accessible" parking space has recently been installed (with no accessible path-of-travel from that space to the store or the temporary store pharmacy in a trailer in the store parking lot) and although the entry to both the temporary trailer and store are "blended" with the vehicle way that pedestrians must be cross, to date, no detectable warning surface has been installed, probably because it wasn't required as part of the permit work. This is not only unsafe for Safeway's blind and low-visioned customers (many of whom live at the Redwoods retirement facility and come from across Camino Alto to the Safeway site) but, I believe, a violation of state building code (I also believe that Safeway's architect should have included that feature based on federal access regulations). I will be home most of the day tomorrow, Monday, November 8th, and can be reached at my home or mobile phone numbers which are listed below.
For your information, I have attached a copy of a letter from Mr. Lockyer, California Attorney General.
I have also copied into this email a recent Marin Independent Journal Newspaper article which discusses the public and business community's apparent image of how small businesses are being unfairly "attacked" by the disability community with inappropriate and unreasonable lawsuits. The access violations in the Safeway case and others access violation cases that I have brought to the attention of the City of Mill Valley and California Department of Justice are typical of the kind of access violation cases individuals with disabilities must face when in their communities. I believe that they are filing these lawsuits because it's appears to be the only way that they can gain their legally mandated access to these businesses. The effort that is required of the disability community to gain those rights includes using the difficult and non-functioning process cities like Mill Valley have developed and apparently use to discourage the filing of access violation cases. The access violations that are and will be found when individuals with disabilities attempt to function in public facilities are created by the lack of knowledge and effort on the part of public permit agencies (building departments) to assure that permitted projects within their jurisdiction meet access codes and when built and are accessible. There is also a glaring lack of professionalism and code knowledge on the part of architects and contractors when they design and build those projects. These are the State licensed professionals whose license requires them to design and build these projects with all of the code requirements, including accessibility code requirements. Obviously, they don't! For a person with a disability to make this "broken" system work for them makes getting the access that is needed and required a daunting task. These are individuals who are already having to live with their disabilities yet they also have to "deal" with these violations and the people who created and permitted them. In other words, the whole system that is, by law, supposed to protect those of us with disabilities, not only doesn't work, but also demands that we be code experts and the "enforcer". Something is wrong with this picture! Two examples of how bad the problem is was indicated by the recent action taken by the California Attorney General's Office against the City of Mill Valley and the County of Marin. These actions weren't brought because the two public entities were doing their job correctly. Are more cases like those by the AG's Office required before the problem