City of Scottsdale, Scottsdale, AZ, 9-13-10

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U.S. Department
of Transportation
Headquarters East Building, 5th Floor - TCR
1200 New Jersey Ave., SE
Washington, DC 20590
Federal Transit
Administration
September 13, 2010

 

Re: FTA Complaint Number 09-0188

Madeline Clemann
Transit Manager
City of Scottsdale
7506 E. Indian School Road
Scottsdale, AZ 85251

Re:  FTA Complaint No. 09-0188

Dear Ms. Clemann:

This letter responds to a complaint against the City of Scottsdale Downtown Trolley (Scottsdale Trolley) alleging discrimination on the basis of disability.  The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation comply with Title II of the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, and 38.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation provider, which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.

Specifically, the complaint of March 10, 2009, alleged that:

I. Scottsdale Trolley lifts are not maintained in an operative condition;
II. Scottsdale Trolley prohibits individuals with disabilities who do not use wheelchairs from using the vehicle’s lift to enter the vehicle;
III. Individuals with disabilities who use the Scottsdale Trolley service are not treated in a respectful and courteous way.

Analysis

Based on our review of the documents provided by Scottsdale Trolley and the Complainant, FTA has reached the following determinations in each area:

I. Scottsdale Trolley lifts are not maintained in an operative condition.

Scottsdale Trolley acknowledged in its May 27, 2010 letter that, at times, the lifts on the trolleys failed to function as they should.  Specifically, Scottsdale Trolley cited the design of the Trolley with a high floor as yielding a very complicated high-maintenance lift design.  Scottsdale Trolley stated that in a three-month period between February 4 and April 30, 2010, they documented 37 instances of lift failure involving 13 of 15 trolleys.  Scottsdale Trolley submits that this is a manufacturer’s design defect, not a maintenance problem. 

DOT ADA regulations at 49 CFR § 37.161 states as follows:

(a) Public and private entities providing transportation services shall maintain in operative condition those features of facilities and vehicles that are required to make the vehicles and facilities readily accessible to and usable by individuals with disabilities.  These features include, but are not limited to, lifts and other means of access to vehicles ….
(b) Accessibility features shall be repaired promptly if they are damaged or out of order.  When an accessibility feature is out of order, the entity shall take reasonable steps to accommodate individuals with disabilities would otherwise use the feature.
(c)This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.

Under DOT ADA regulations at 49 CFR § 37.163(b), public entities like the City of Scottsdale Trolley must also establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative. When an entities lift is discovered to be inoperative, DOT regulations at 49 CFR § 37.163(d) states that the entity shall take the vehicle out of service before the beginning of the vehicle’s next service day and ensure that the lift is repaired before the vehicle returns to service.  However, section 49 CFR § 37.163(e) provides that under limited circumstances an entity does not have to take a vehicle out of service if there is no spare vehicle available to take the place of a vehicle with an inoperable lift, if that taking that vehicle out of service will reduce the transportation service the entity is able to provide. Under DOT ADA regulations, a public entity may keep the vehicle in service with inoperable lift for no more than five days if the entity serves an area of 50,000 or less population or three days if the area served is over 50,000 in population from the day on which the lift is discovered to be inoperative.

According to census data, the population in 2000 for the 85251 zip code was 37,890.  Thus, upon the discovery of an inoperable lift, Scottsdale Trolley would be permitted to keep the trolley in service for no more than five days.  In the documents provided to the FTA, Scottsdale Trolley stated that if a vehicle’s lift is inoperative, the vehicle is removed from service and replaced by one with an operational lift.  The record further states that in a few unwelcome instances, Scottsdale Trolley had to deploy a vehicle with an inoperative lift because all spare vehicles were in use.  Scottsdale Trolley stated that “as soon as a vehicle with an operating lift became available, the vehicle in the field was replaced.” 

Finding No. 1: Scottsdale Trolley’s use of vehicles with non-functioning lifts for more than five days is in express violation of DOT’s ADA regulations. 

Request No 1: Scottsdale Trolley is requested to update FTA on its trolley lift failure rates, and the length of time each failing vehicle remained in service during the period September  1, 2010  through December 30, 2011  Include an update on any changes in the City of Scottsdale’s policies or practices related to lift failures, the length of time before spare trolleys with operable lifts are put into service, and for what period trolleys with inoperable lifts may remain in service. 

In addition, Scottsdale Trolley is requested to update FTA on the maintenance of its vehicles and lifts.  Scottsdale Trolley must maintain in operative conditions those features of its vehicles that are required to make the vehicles readily accessible to and usable by individuals with disabilities, including its lifts.

II. Scottsdale Trolley prohibits individuals with disabilities who do not use wheelchairs from using the vehicle’s lift to enter the vehicle.

Scottsdale Trolley stated in its response to this complaint, that their policy is to allow ambulatory persons to use the lifts at the “driver’s discretion.”  According to Scottsdale Trolley, if a driver believes there may be a risk of injury to someone using the lift, the driver will “kneel” the trolley so that these individuals can board.  Scottsdale Trolley further maintains that at no time has Scottsdale Trolley precluded individuals from riding a trolley unless, in the driver’s discretion, there appeared to be a risk of injury to that person or others.

Under 49 CFR § 37.165(g) of DOT ADA regulations public entities shall permit individuals with disabilities who do not use wheelchairs, including standees, to use a vehicle’s lift or ramp to enter the vehicle. Specifically, under Appendix D of 49 CFR § 37.165(g)  “people using canes or walkers and other standees with disabilities who do not use wheelchairs but have difficulty using steps (e.g. an elderly person who can walk on a plane without use of a mobility aid but cannot raise his or legs sufficiently to climb bus steps) must also be permitted to use the lift, on request.” 

Finding No. 2: Scottsdale Trolley’s policy to permit persons to use the lift at the “driver’s discretion” is in express violation of DOT ADA regulations.

Request No 2: Please explain to FTA what steps Scottsdale Trolley will take to ensure that persons with disabilities who do not use wheelchairs, including standees, may use a Trolley’s lift or ramp to enter the vehicle. Include an update on any changes in the City of Scottsdale’s policies or practices related to access to the lifts.

III. Individuals with disabilities who use the Scottsdale Trolley service are not treated in a respectful and courteous way.

DOT ADA regulations at 49 CFR § 37.173 require that each public or private entity ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.

Finding No. 3: Although there is some discrepancy between Scottsdale Trolley and the Complainant’s account, FTA cannot determine the specifics of what alleged discourteous behavior occurred.  Thus, the information provided does not support a finding that Scottsdale Trolley violated DOT ADA regulations at 49 CFR § 37.173. 

Conclusion

Please respond within 30 days of this letter with an update on actions taken to address this concern, including any procedural changes or clarifications to the website and other public informational materials as needed.  If you have any questions regarding this inquiry, please contact me of Hyacinth Clarke of my staff at (202) 366-7142 or via e-mail at hyacinth.clarke@dot.gov.  Please include the FTA Complaint No. 09 -0188 in any correspondence regarding this complaint.  Thank you for your assistance. 

Sincerely,

 

John R. Day
Acting ADA Team Leader
Office of Civil Rights

cc: 
Complainant, Scottsdale, AZ
Derrin Jourdan, FTA Region 9, Civil Rights Officer

 

 

 

 

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