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159_Opinion_and_Order.pdf

159_Opinion_and_Order.pdf

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Published by johnd7463
Federal ruling on NYC's violation of the Americans With Disabilities Act.
Federal ruling on NYC's violation of the Americans With Disabilities Act.

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Published by: johnd7463 on Nov 08, 2013
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07/11/2014

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250. Plaintiffs also contend that both the means and content of the City’s

communication during an emergency are insufficient. As noted above, with respect to the means

of communication, Justice Department regulations provide that “[a] public entity shall take

appropriate steps to ensure that communications with [people] with disabilities are as effective as

communications with others,” 28 C.F.R. § 35.160(a)(1), including, where necessary, the

provision of “appropriate auxiliary aids and services,” id. § 35.160(b)(1).

251. The City employs a wide variety of methods — including press conferences,

websites, the 311 system, AWS, and NotifyNYC.gov — to communicate information during an

emergency. Most, if not all, of these means are accessible to people with disabilities. The

Mayor’s office, for example, has a policy requiring sign language interpretation of important

press conferences; the City’s websites are largely accessible to those who are blind via screen

readers; and 311 is available to those who are deaf via TTY. None of these means of

information distribution is perfect. Press conferences may not always be closed-captioned; the

311 system may not always be available; and the reach of AWS is limited. But the multiplicity

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That is not to say that the City needs to provide information on the accessibility of all of
its shelters to comply with the ADA. Such a mandate would be incompatible with the solar
system model of sheltering that the City has devised, a model with significant benefits (including
the ability to focus resources where needed, which plainly helps in serving people with
disabilities). Moreover, the ADA does not demand that level of perfection. See, e.g., United
Spinal Ass’n, 882 F. Supp. 2d at 624. At a minimum, however, the ADA requires the City to
provide accurate information about the accessibility of evacuation centers — the location of
which the City knows in advance of an emergency and to which all evacuees are directed in the
first instance.

Case 1:11-cv-06690-JMF Document 159 Filed 11/07/13 Page 110 of 119

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of means by which information is distributed ensures that people with disabilities have an equal

opportunity to access emergency information as those without disabilities. See, e.g., Loye v.

Cnty. of Dakota, 625 F.3d 494, 499-501 (8th Cir. 2010) (holding that the proper standard is not

whether every communication is accessible, but rather whether, as a whole, the communication

provided to people with disabilities is “effective” and ensures “meaningful access to the services

being provided”).

252. Notably, the only person with disabilities that Plaintiffs identified who was

insufficiently warned of Hurricane Sandy’s approach, Kenneth Martinez, testified that he did not

have a computer, watch television, or listen to the radio in the days leading up to the storm. (See

Martinez Decl. ¶ 28). It was not, therefore, Martinez’s disability that prevented him from

receiving the City’s emergency information; a person without disabilities who did not use a

computer, watch television, or listen to the radio would also likely not have received information

that a storm was approaching. Plaintiffs provided no evidence that the means of communication

employed by the City during an emergency are any less effective at reaching people with

disabilities as those without.

253. There is certainly room for the City to improve on its plans with respect to the

means of communicating emergency information. For example, while the City adopted a policy

during Hurricane Sandy to require a sign language interpreter at the Mayor’s press conferences,

that policy is not memorialized in the City’s emergency plans themselves and is limited by its

terms to the Mayor’s press conferences. (Ex. 298). Additionally, while there are

recommendations that televised warnings and alerts contain audio and captioning components,

there is nothing in the City’s plans that requires these accommodations. (See Tr. 295:18-22).

Given the multiplicity of ways that the City communicates emergency information and the lack

Case 1:11-cv-06690-JMF Document 159 Filed 11/07/13 Page 111 of 119

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of evidence that people with disabilities do not receive this information, however, these

shortcomings are not enough in themselves to constitute a violation of the ADA.

254. The content of the City’s emergency communications, however, is a different

matter. In particular, just as the City’s outreach program fails to provide sufficient information

about the location of accessible emergency services, so too do its communications during an

emergency. For example, the City’s emergency plans do not require the City to provide

information about the location of accessible evacuation centers during an emergency. During

Hurricane Sandy, the City announced only that all evacuation centers had a usable entrance. As

explained above, however, a usable entrance does not make an evacuation center or shelter

accessible, let alone accessible within the meaning of the ADA and applicable regulations. The

failure to provide information about which evacuation centers or shelters were actually

accessible plainly deprives people with disabilities of the ability to “obtain information as to the

existence and location of accessible services, activities, and facilities.” 28 C.F.R. § 35.163(a).

255. Nor do the plans require the City to publicize the availability of evacuation

assistance or accessible transportation. Instead, the City encourages residents to call 311 to

access this information. As repeatedly noted above, however, the 311 system may be

unavailable during an emergency. And, in any event, limiting people with disabilities to calling

311 during an emergency deprives them of the opportunity to develop an evacuation plan in

advance of the emergency. That guidance, therefore, also fails to satisfy the requirement that the

City provide people with disabilities information about the existence and location of accessible

services. See 28 C.F.R. § 35.163(a); Clarkson v. Coughlin, 898 F. Supp. 1019, 1044 (S.D.N.Y.

1995) (“[A] public entity . . . is obligated by the ADA to make available . . . information

regarding . . . the existence and location of accessible services, activities and facilities.”).

Case 1:11-cv-06690-JMF Document 159 Filed 11/07/13 Page 112 of 119

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