_~`A.~ - Oficina del Procurador de las Personas con Impedimentos

Transcription

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
PROCURADOR de PERSONAS con
IMPEDIMENTOS , OFICINA del PROCURADOR
de PERSONAS con IMPEDIMENTO
on His Own Behalf and On Behalf of the
Persons with Disabilities ;MAGALY del C. MALDONADO
BRIGNONI, WILLIAM RIOS-RIVERA on their own behalf
and on behalf of their disabled son GUILLERMO JAVIER
RIOS-MALDONADO
CIVIL NO.:
A.D.A Title II
v.
MUNICIPALITY of SAN JUAN,
Jorge Santini, in his official Capacity
as Mayor of the Municipality of San Juan,
DEPARTMENT OF PUBLIC WORKS for the MUNICIPALITY
OF SAN JUAN; Heriberto Saud in his official
Capacity as Director of the Department of Public Works of
the Municipality of San Juan;
COMMONWEAL TH of PUERTO RICO;
DEPARTMENT OF TRANSPORTATION
AND PUBLIC WORKS OF THE COMMONWEALTH
OF PUERTO RICO; et al.
VERIFICATION
I, Jose Raul Ocasio, Ombudsman for Persons with Disabilities appearing on behalf of
the Office of the Ombudsman for the Persons with Disabilities and on behalf of persons with
disabilities who are wheelchair users and who have mobility disabilities as plaintiff in the
Verified Complaint for permanent and preliminary injunction of this same date, being of legal
age, married; an attorney and resident of Trujillo Alto, Puerto Rico, hereby declare that I have
read the Verified Complaint and verify that the statements and facts alleged therein are true tl) the
best of my knowledge, and that they were drafted by plaintiffs' attorneys in accordance with our
instructions,
Pursuant to 28 U.S.C. section 1746, I declare under penalty of perjury that the forgoing
is true and correct. In San Juan, Puerto Rico this -
_~'A.~
Jose Rafael Ocasio
day of June, 2006.
DISTRICT OF PUERTO RICO
IMPEDIMENTOS , OFICINA del PROCURADOR
RIOS-MALDONADO
CIVIL NO.:
A.D.A Title II
v.
OF SAN JUAN; Heriberto Sauri in his official
COMMONWEALTH of PUERTO RICO;
OF PUERTO RICO; et al.
VERIFICATION
WE, Magaly del C. Maldonado-Brignoni and William Rios Rivera appearing on
behalf of our son Guillermo Javier Rios-Maldonado and on our own behalf as plaintiffs in th ~
Verified Complaint for permanent and preliminary injunction of this same date, being of leI 11
age, married to each other, residents of San Juan, Puerto Rico, hereby declare that we have-ead
the Verified Complaint and verifYthat the statements and facts alleged therein are true to the best
of our knowledge, and that they were drafted by plaintiffs' attorneys in accordance with our
instructions,
Pursuant to 28 U.S.C. section 1746, we declare under penalty of perjury that the forg~ing
is true and correct. In San Juan, Puerto Rico this -
~§~~&\~
i}lAetA~:f6~ALDONADO;;BRlGNONI
day of June, 2006.
WILL
DISTRICT OF PUERT () RICO
IMPEDIMENT OS , OFICINA del PROCURADOR
RIOS-MALDONADO
CIVIL NO.:
v.
A.D.A Title II
OF SAN JUAN; Heriberto Sauri in his official
COMMONWEAL TH of PUERTO RICO;
OF PUERTO RICO; Gabriel D. Alcaraz Emmanuelli, in his official
Capacity asSecretary of the Department of Transportation and Public Works;
ADMINISTRATION OF PERMITS AND REGULATIONS;
Luis A. Velez Roche, in his official Capacity as Administrator of ARPE,
Commonwealth of Puerto Rico;
DEPARTMENT OF POLICE OF THE COMMONWEALTH
OF PUERTO RICO; Pedro Toledo, in his official Capacity
as Superintendent of the Police Department
VERIFIED COMPLAINT
TO THE HONORABLE COURT:
Come now the plaintiffs through the undersigned attorney and respectfully sets fOith as
I
follows:
OVERVIEW OF THE COMPLAINT
This is an action for Declaratory Judgment, whereby plaintiff seeks that the conduct of the
Municipality of San Juan as well as the Government of the Commonwealth of Puerto Rico be
declared in violation of Title II of the Americans with Disabilities Act (AD.A), and the regulations
issued by the U.S. Department of Justice to implement the AD.A (28 C.F.R. §31.150); Section 504
of the Rehabilitation Act, as well as under the equal protection clause of the D.S. Constitution, and
42 D.S.C. § 1983. The requested relief includes a preliminary and permanent injunction against
defendants and their agents, servants and employees for failing to make and ensure that the public
sidewalks are accessible to disabled citizens. Defendants through their acts and/or omissions have
discriminated against the disabled by failing to meet the accessibilityrequirements for persons with
disabilities under the law. Persons with disabilities are denied access to public sidewalks by failing
to provide curb ramps in compliance with the law; by placing architectural barriers on sidewalks;
and/or failing to maintain existing sidewalks to ensure accessibility to persons with disabilities;
allowing other barriers that obstruct accessibility to the sidewalks to persons with disabilities.
Defendants unlawful conduct and omissions is also actionable under Puerto Rico Law 44 of July
1985, as amended, and Puerto Rico Law 238 of August 31sl 2004. This is not a claim for monetary
damages.
JURISDICTION AND VENUE
1.
This action arises under Title II of the American with Disabilities Act of 1990, 42 D.S.C.
§12132, as well as under the Rehabilitation Act of 1973 as amended, 29 D.S.C. § 794 (a).
2.
The jurisdiction of this court is predicated on the existence of a federal question pursuant to
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28 D.S.C. §§1331,1343, 2201and 2202.
3.
This court is authorized to grant Plaintiffs' prayer for relief and to award costs, including
reasonable attorney's fees under 42 D.S.C. § 1988.
4.
This court has supplemental jurisdiction to hear and adjudicate the claims arising under
Puerto Rico Law pursuant to 28 D.S.C. § 1367.
5.
Venue is proper in this District Court as the events giving rise to this claim occurred in and
all the parties are residents of the Commonwealth of Puerto Rico.
PARTIES
6.
The "Procurador de 1as Personas con Impedimentos" or Ombudsman for Persons with
Disabilities, is the Commonwealth of Puerto Rico official in charge of and directs the" Oficina del
Procurador de 1as Personas con Impedimentos" or Office of the Ombudsman for Persons with
Disabilities ( hereinafter "OPPI"). OPPI was created by virtue of Puerto Rico Law Number 2 of
September 27t\ 1985 , as amended, to protect and defend the rights of persons with disabilities
granted under federal and Puerto Rico laws.
7.
Pursuant to Puerto Rico Law 2 of September 1985, as amended, the Procurador de las
Personas con Impedimento,(hereinafterOmbudsmanfor Personswith Disabilities or Ombudsman),
is vested with the authority to take legal action and seek legal remedy on behalf of persons with
disabilities under the laws that protect the disabled, against any public agency. (Article 12 (f)
OPPI is also the office designated as the Protection Advocacy System for Puerto Rico pursuant to
Title of Cthe Act of (Public Law 106-402 ) as amended.
8.
Magali del Carmen Maldonado-Brignoni (hereafter plaintiff Maldonado-Brignoni) and
William Rios-Rivera are both adults married to each other, and parents of Guillermo Javier Rios
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Maldonado. They reside at Americo Miranda Avenue #1257, Reparto Metropolitano, San Juan,
Puerto Rico. They appear as plaintiffs in this suit on their own behalf and on behalf of their son
Guillermo Javier Rfos Maldonado
9.
Guillermo Javier Rfos-Maldonado is twenty five years old, is a severely retarded young man
with cerebral palsy and is dependent on wheel chair for mobility. He is a person with a handicap
(disability) as defined under the Rehabilitation Act of 1973 and a qualified individual with a
disability as defined under the A.D.A.
10.
William Rfos Rivera is a diabetic and a lung cancer patient. As a result of the treatments and
his lung cancer, he needs a wheelchair for his mobility. He is a handicappedperson as defined under
the Rehabilitation Act of 1973, and a qualified individual with a disability as defined under the
A.D.A.
11.
Jorge A. Santini is the Mayor of the Municipality of San Juan. As Mayor he is the highest
ranking public official of the Municipality of San Juan and head of the public works and services
provided by the municipality. He is brought to this suit in his official capacity only.
12.
Heriberto Saurl, is the Director, and the highest ranking public official of the Department of
Public Works of the Municipality of San Juan, Puerto Rico, entity charged with maintaining and
keeping the sidewalks of the Municipality of San Juan. He is brought to this suit in his official
capacity only.
13.
Gabriel D. Alcaniz Emmanuelli is the Secretary, and the highest ranking official of the
Department of Transportation and Public Works of the Commonwealth of Puerto Rico, agency
charged with maintaining and keeping the sidewalks and public streets under thejurisdiction of the
Commonwealth of Puerto Rico. He is brought to this suit in his official capacity only.
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14.
Luis A. Velez Roche is the Administrator of the Administrationof Regulations and Permits
of the Commonwealth of Puerto Rico, (hereafter ARPE), a duly appointed public official. His
mailing address is P.O. Box 41179, Minillas Station, Santurce, Puerto Rico 00940.
15.
The Administrator of ARPE is the highest ranking public official of the entity that is charged
with enforcing regulations of the use of land and issuing use permits in order for businesses to
operate pursuant to the Laws of the Commonwealthof Puerto Rico. He is brought to this suit in his
official capacity only.
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Pedro Toledo isthe Superintendentofthe PoliceDepartmentof the Commonwealth of Puerto
Rico.
17.
The Superintendent of Police Department of the Commonwealth of Puerto Rico is the
highest ranking official ofthc CommonwealthPolice Departmentthat is charged with enforcing the
transit laws of the Commonwealth of Puerto Rico. He is brought to this suit in his official capacity
only.
STATEMENT OF THE CASE
18.
OPPI was created by law in 1985 to serve as an instrumentto coordinate and solve problems
confronted by persons with disabilities; charged with protecting the rights of persons with
disabilities, and to pave the way for a more inclusive societyby breaking barriers, be they physical
or spiritual, that impede the full integration of persons with disabilities to our society.
19.
Specifically, Puerto Rico Law 2 of September 27, 1985 as amended, charges OPPI with
securing and overseeing that public agencies do not discriminate against persons with disabilities
because of their condition. Article 4 (h).
20.
The Ombudsman for Persons with Disabilities has the authority, and is charged with the
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responsibility to investigate,process and adjudicate complaints filed before OPPIand to implement
Puerto Rico Law 44 , which prohibits discrimination based on disability. He is vested with the
authority to interpose any legal action and recourse on his own behalf as Ombudsman of Persons
with Disabilities, or on behalf of persons with disabilities under the federal or local laws which
provide protection to and prohibit discrimination against persons with disabilities, against any
public agency to defend and protect their interests. Article 12 (t).
21.
Persons with disabilities who are wheelchair users or otherwise have physical impairments
which substantially limit their daily activity of walking, are protected individuals under the
American with disabilities Act, and the Rehabilitation Act of 1973.
22.
Persons with disabilities, who are wheelchair bound, wheelchair users, or otherwise have
physical impairments which substantially limit their daily activity of walking have complained
before OPPIabout the lack of accessibility to sidewalks under the jurisdiction or control of the
Municipality of San Juan through its Department of and Public Works.
23.
Persons with disabilities who are wheelchair bound or otherwise have physical impairments
which substantially limit their daily activity of walking, have complained before OPPIabout the
lack of accessibility to sidewalks under thejurisdiction or control of the Commonwealth of Puerto
Rico through its Department of Transportation and Public Works.
24.
OPPI has verified and confirmed that there are many public sidewalks in San Juan which
are not being maintained nor are accessible to persons with disabilities. Some of these sidewalks
are under the control or jurisdiction of the San Juan municipal government entity, and others are
under control and jurisdiction ofthe state government entity, the Commonwealth of Puerto Rico.
25.
The Americo Miranda Avenue where plaintiff Magaly Del Carmen Maldonado-Brignoni
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resides with her disabled son Guillermo Javier and husband William Rios Rivera, does not have
curb ramps as required under the A.D.A. and the sidewalk is not accessible to them because of their
handicap and/or disability.
26.
Plaintiff Maldonado-Brignoni is responsible for her son Guillermo's care and well being.
Because of Guillermo's physical and mental disabilities there are no rehabilitation or vocational
services available to him. These parents have been instructed to provide Guillermo with social and
community activities. Efforts to provide Guillermo with activities outside of the home have been
limited and have been interfered with due to the lack of access to public sidewalks.
27.
Maldonado- Brignoni has confronted serious obstacles in moving her son from one point to
another in his wheelchair on sidewalks adjacent to her residence.
The obstacles include:
architectural barriers which impede the wheelchair carrying her son from getting through from one
point to another on Americo Miranda avenue; lack of curb ramps, vehicles parked in front of
businesses that obstruct the side walks.
28.
The sidewalks on the Americo Miranda Avenue adjacent to plaintiffs Maldonado-Brignoni,
Rios Rivera and Rios Maldonado household do not have the curb ramps, as required under the
A.D.A, to facilitate and make possible that persons in wheelchairs or who otherwise have mobility
problems can access the sidewalks.
29.
Approximately two years ago curb ramps were constructed on some blocks along the
Americo Miranda Avenue, but these curb ramps either do not comply with the measurement
requirements under the pertinent regulations, or are ineffective in making the sidewalks accessible
to disabled or handicapped persons. That situation continues to make the sidewalks not accessible
to disabled persons in wheelchairs or with mobility problems.
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30.
The lack of access to public sidewalks has also interrupted and interfered with accessing
medical follow up treatment for both Guillermo Javier Rios Maldonado and William Rios Rivera.
Attempting to reach the bus stop which is a short distance from their home is oftentimes impossible
as a result of the obstacles and barriers on the sidewalks.
31.
The barriers on the sidewalks confronted by the plaintiff Maldonado-Brignoni, Rios
Maldonado and Rios Rivera are barriers that make the sidewalks completely inaccessible
or
dangerous for persons with disabilities who are wheelchair users or with mobility disabilities, or as
in the case of Maldonado-Brignoni the caretaker of a person with a disability, who have to risk their
safety and life. Maldonado-Brignoni and her son Guillermo Javier are often forced in order to
move from one point of the avenue to another, to walk onto the street, and to move between cars
and trucks.
32.
Among the public sidewalksthat are notoriously not accessible to persons with disabilities
are the Jesus T. Pinero Avenue in Hato Rey.
33.
The sidewalks ofthe Jesus T. Pinero Avenue are under the control of and are maintained by
the Department of Public Works of the Municipality of San Juan.
34.
The Jesus T. Pinero Avenue is a main avenue in San Juan which provides many bus routes
and public transportation routes that connectto other main avenuesand public transportation routes
that access essential services such as health care services, recreational services, social services and
employment, mail boxes, banks, etc.
35.
Inaddition to essential public bus routes, Jesus T. Pinero Avenue has many stores, doctors
offices, pharmacies, restaurants and other public as well as private services located on the avenue.
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36.
The sidewalks of the Jesus T. Pinero Avenue are obstructed by barriers, do not have curb
ramps, and or their use has been substantially altered.
37.
Persons with disabilities who are wheelchair users, wheelchairbound, or who have physical
impairments which substantiallylimit their abilityto walk, are deniedaccessto this public sidewalk
as well to the numerous other public and private services on Jesus T. Pinero Avenue, and to other
public services that need to be accessed through this avenue.
38.
Upon information and belief the Administration of Regulation and Permits or "ARPE" has
issued use permits to many of the businesses operating and located on the Jesus T. Pinero Avenue
and Americo Miranda Avenue, allowing the use of the sidewalks as parking spaces.
39.
The granting of a use permit by ARPE to these businesses includes evaluating and approving
parking spaces for the operation of the business.
40.
Upon information and belief, ARPE has issued use permits to the businesses located on the
Jesus T. Pinero Avenue and the Americo Miranda Avenue in contravention to laws which impose
the obligation to maintain and provide access to persons with disabilities to public sidewalks.
41.
The businesses located on the Jesus T. Pinero Avenue, operating with the corresponding
ARPE permit, have designated the space in front of the establishment as parking space which
represents a barrier and obstruction to the public sidewalks, making it impossible for a wheelchair
bound person to access this public sidewalk or other public servicesprovided on that avenue. ARPE
continues to grant use permits to businesses located on these avenuesunder the same circumstances
regarding the use of parking space in front of the establishment which obstruct the sidewalks.
42.
When ARPE grants use permits to these businesses under the circumstancesdescribed in the
above paragraph it constitutes an alteration of the existing use of a public service.
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43.
Vehicles parked on the public sidewalks also constitute barriers to disabled persons
accessing the public sidewalks, including Jesus T. PifieroAvenue. The sidewalks on this avenue are
consistently and on a daily basis obstructed by vehicles parked on the public sidewalk.
44.
Private vehicles as well as vehicles of the Department of Police of the Commonwealth of
Puerto Rico are parked on this sidewalk, and/or obstruct the sidewalks and create barriers to
disabled persons, particularly wheelchair users and persons with mobility disabilities.
45.
The Police Department vehicles not only become barriers to persons with disabilities and
violate their protected rights under federal and Puerto Rico laws as further elaborated below, by
parking their vehicles on the public sidewalk, but also by omission by failing to act and secure that
persons with disabilities have access to public sidewalks. The Police Department fails to enforce
transit laws as well as laws that protect persons with disabilities and that prohibit discrimination
against persons with disabilities.
46.
The Police Department of the Commonwealth of Puerto Rico treats disabled persons who
are wheelchair users differentlythan non disabled persons when they enforce the laws differently
and fail to enforce laws which directly impact and negatively affect the every day lives of persons
with disabilities who are wheelchair users and have mobility disabilities.
47.
The Commonwealth of Puerto Rico, through the Department of Transportation and Public
Works of the Commonwealth of Puerto Rico, undertook the renovation of sidewalksand resurfacing
of streets adjacent to the train systemin Rio Piedras, Puerto Rico. Theserenovations took place from
2001 to present. Among the streets renovated and resurfaced by the Department of Transportation
and Public Works of the Commonwealth of Puerto Rico was Borinquefia Street, in Rio Piedras.
48.
The sidewalks renovated by the Department of Transportation and Public Works of the
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Commonwealth of Puerto Rico do not comply with the regulations requiring the installation of curb
ramps in compliance with the regulationsthat implement Title II of the Americans with Dis~bilities
Act.
49.
The sidewalks kept and maintained and or renovated by the Department of Transportation
and Public Works of the Commonwealth of Puerto Rico are not accessible to persons with
disabilities who have ambulatorylimitationsbecause theyhave architecturalbarriers that impedethe
access of a wheelchair.
50.
The barriers making the public sidewalks inaccessible to persons with disabilities with
ambulatory limitations include but are not limited to the following:
A. architectural barriers are placed precisely on the curb ramps required by law and intended
for the safe use of persons with disabilities, particularly those who are wheelchair users;
B. architectural barriers also are present on the public sidewalks making the sidewalk not
accessible to persons with mobility disabilities who are wheelchairusers, not meeting the necessary
space requirements for a wheelchair to have access;
C. other barriers to accessibility to public sidewalks include the use of the sidewalks for
purposes other than for pedestrian walks without providing any alternatives to persons with
disabilities.
D. Recently constructed curb ramps do not comply with the size and safety requirements
specified by the Americans with DisabilitiesAct and the correspondingregulation implementing the
Act.
51.
Ccurb ramps constructed on Ashford Avenue, comer of De Diego Street, in San Juan, do
not meet the size and safety specification requirements under the Americans with Disabilities Act
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and the applicable regulation (inclination of the curb ramp constructed does not meet standard set
forth by the ADA and the corresponding regulation).
52.
Public sidewalks are an essential element for the integration and independence of persons
with disabilities into our society.
53.
Public sidewalks are necessary to allow the general public to travel safely around the city.
54.
Public sidewalks constitute a public service under the Americans with Disabilities Act, the
Rehabilitation Act, and under Puerto Rico Law 44.
FIRST CAUSE OF ACTION
FAILING TO PROVIDE PERSONS WITH DISABILITIES ACCESS TO PUBLIC
SIDEWALKS IS IN VIOLATION OF THE AMERICAN WITH DISABILITIES ACT TITLE II.
55.
Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 42 inclusive.
56.
The Municipality of San Juan government entities and the Commonwealth of Puerto Rico
government entities conduct alleged herein is in violation of Title II of the American with
Disabilities Act.
57.
Title II ofthe ADA prohibits discrimination in the provision of public services. 42 D.S.C.
12132. It provides that: No 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.
58.
Providing, constructing and maintaining public sidewalks is a service, program or activity
within the meaning of Title II of the ADA.
59.
ADA Title II Regulations subject public sidewalks to accessibility requirements. Title II
program accessibility regulations provide that [e]xcept as otherwise provided...
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no qualified
individual with a disability shall, because a public entities facilities are inaccessible to or unusable
by individuals with disabilities, 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 public
entity. 28 C.F.R. 35,149
60.
Architectural barriers, barriers to transportation and lack of access to public services is a
form of discrimination historicallysufferedbypersons with disabilities and intended to be addressed
by the ADA.
61.
Providing and maintaining sidewalks is a normal function of a city and or of the
Commonwealth government. Both government entities state and municipal, have failed to provide
persons with disabilities, particularly those wheelchair bound and those with mobility disabilities
access to public sidewalks and services as required under the ADA.
62.
Requiring the city to maintain its sidewalks so that they are accessible to individuals with
disabilities is consistent with the ADA.
63.
When ARPE granted the use permits to the businesses allowing the use of the front of the
establishments as parking, it affected the usability of the public sidewalks by persons with
disabilities that are wheelchair users and/orthat have mobilityimpairments.It did so without making
the altered use accessible to persons with ambulatory disabilities in violation of the ADA.
64.
The ADA and the regulations in effect to implement Title II of the ADA require that curb
ramps meet size and other construction specifications in order that the sidewalks be accessible to
persons with disabilities. Defendants conduct alleged herein violates these provisions.
65.
Defendants have violated Title II of the ADA also placing barriers and or not eliminating
barriers on the sidewalks that are under their control and jurisdiction which has the effect of not
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making accessible the sidewalks and other public services to persons with disabilities, in particular
those wheelchair bound and with ambulatory disabilities.
66.
Defendants conduct has the effect of excluding persons with disabilities, those who are
wheelchair users and with mobilitydisabilities,fromparticipating in or being deniedpublic services,
and programs, and are discriminated against because of their condition.
67.
68.
Selectively failing to enforce transit laws in this case illegal constitutes discrimination.
Defendants failure to provide access to public sidewalksto persons with disabilities who are
wheelchair users or who have mobility disabilities has the effect of severely limiting their ability
to travel around the community, to avail themselves of other public services and to conduct basic
activities of daily life; impairs their integration in our society isolating them and making them
dependent on others which is contrary to the stated public policy of both the United States
government and of the Commonwealth of Puerto Rico.
SECOND CAUSE OF ACTION
FAILING TO PROVIDE PERSONS WITH DISABILITIES ACCESS TO PUBLIC
SIDEWALKS IS IN VIOLATION OF THE REHABILITATION ACT OF 1973, AS
AMENDED.
69.
Plaintiffs reallege and incorporates by reference paragraphs 1 through 52 inclusive as
alleged herein.
70.
The Municipality of SanJuan including its Department of Transportation and Public Works
receive federal funds.
71.
The Commonwealth of Puerto Rico, including its Department of Transportation and Public
Works receive federal funds,
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72.
The Commonwealth of Puerto Rico Administration of Permits (ARPE) receives federal
funds.
73.
The Commonwealth of Puerto Rico Department of Police receives federal funds.
74.
Section 504 of the RehabilitationAct of 1973,29 U.S.C. sec 794,provides that no otherwise
qualified handicapped person" shall, solely by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving federal financial assistance".
75.
The persons represented in this suit byplaintiff areprotectedpersonsunderthe Rehabilitation
Act.
76.
Providing, constructing and maintaining a system of public sidewalks is a service program
or activity within the meaning of Section 504 of the Rehabilitation Act of 1973 as amended.
77.
Defendants are in violation of the Rehabilitation Act of 1973, as amended through their
conduct alleged herein by excluding handicapped persons from using public sidewalks and having
access to public sidewalks and other public services they access through the public sidewalks.
THIRD CAUSE OF ACTION
ABRIDGING EQUAL PROTECTION RIGHTS UNDER THE
AMENDMENT TO THE UNITED STATES CONSTITUTION
FOURTEENTH
78.
Plaintiffs reallege and incorporate paragraphs 1 through 61 inclusive.
79.
Defendants conduct constitutes a violation of the Equal Protection of the laws under the
Fourteenth Amendment of the Constitution of the United States, in as much as the Commonwealth
of Puerto Rico Department of Police selectivelyrefuses to enforcetransit laws which directly impact
and affect persons with disabilities, particularly those who are wheelchair users and who have
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mobility disabilities while enforcingother transit laws, in total and gross disregardto safetyand well
being persons who are wheelchair users or wheelchair bound, and or with mobility disabilities.
80.
The Department of Police ofthe Commonwealthof Puerto Rico selectively and intentionally
"look the other way" and do not enforce transit laws which prohibit obstructing public sidewalks,
in total disregard to handicapped persons with ambulatory disabilities at times placing their lives
at risk in order to access the sidewalk.
81.
The conduct of officials of the Police Department of the Commonwealth of Puerto Rico is
tantamount to intentional discrimination.
42 use 1983
82.
The conduct of the Police Department of the Commonwealth of Puerto Rico, as well as the
other government entities through its officials, violates 42 U.S.C. section 1983, in that as a direct
and proximate result of such conduct persons with disabilities who are wheelchair users and that
have mobility disabilities are deprived of rights and privileges securedthem by the Constitution and
the laws of the United States
83.
Defendants conduct was undertaken under color of state law and operates to deprive persons
with disabilities who are wheelchairusers and who have mobility disabilities of their federal rights.
84.
Defendants' conduct was and is undertaken pursuant to, and constitutes an official policy
of the Commonwealth of Puerto Rico.
85.
Defendants' conduct was and is undertaken pursuant to , and constitutes official policy of the
Municipality of San Juan.
86.
The Department of Police of the Commonwealth of Puerto Rico has acted in collusion with
business owners on Jesus T. Pinero Avenue and other government agencyofficials, to denypersons
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with disabilities who are wheelchair bound and who have ambulatory disabilities their rights
protected under federal and Puerto Rico laws.
87.
Pursuant to 42 U.S.C. Section 1988, Plaintiff is entitled to a reasonable amount of attorneys
fees as part of the costs.
SUPPLEMENTAL CLAIMS UNDER PUERTO RICO LAW
DEFENDANTS CONDUCT IS IN VIOLATION TO PUERTO RICO LAW NUMBER 440f
JULY 1985, AS AMENDED, AND PUERTO RICO LAW 238 OF AUGUST 3rt 2004.
88.
Plaintiffs reallege paragraphs 1through 87 as asserted herein.
89.
Puerto Rico Law 44 of 1985, as amended provides that no natural or legal entity shall limit,
exclude a person with disabilities from participating in or enjoying any program or activity
organized, operated, administered or otherwise directed by any public or private institution
receiving funds from the Commonwealth of Puerto Rico. 1 L.P.R.A.§ 502
90.
Puerto Rico law 44, as amended, further imposes affirmative measures to be taken by a
public or private institution to eliminate any physical or structural barriers ,or of any other nature,
that make the public facilities inaccessible to persons with disabilities.
91.
Co defendants are in violation to the mandate of Puerto Rico Law 44, of July 2nd1985 as
amended.
92. Puerto Rico Law 238 of August 2004, known as the Bill of rights of Persons with Disabilities,
provides that it is the public policyof the Commonwealthof Puerto Rico that persons with disabilities
be granted and extended the rights guaranteed under the Bill of Rights of the Constitution of the
Commonwealth of Puerto Rico. Article 3
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93.
The Bill of Rights of Persons with Disabilities recognizes the right of persons with
disabilities to a full development and inclusion in society. This includes the right to have access to
public services and facilities. It further imposes the obligation on all stateand municipal government
entities to attend with diligence any petition to solve the problem and needs of persons with
disabilities.
94.
The Ombudsman for Persons with Disabilities has attemptedto obtain the compliance of the
state and municipal entities with the laws that mandate access to public sidewalks for persons with
disabilities, but has not been successful in his attempts to enforce compliance.
95.
Defendant agencies have failed to comply with their duty under the Bill of Rights of Persons
with Disabilities.
RELIEF
Wherefore plaintiffs respectfully requests that this Court grant judgment as follows:
1.
Declare the conduct stated herein in violation of Title II of the ADA as well as under
the Rehabilitation Act of 1973;
2.
Grant a Preliminary and Permanent Injunction Permanent to:
A. Compel the Municipality and Commonwealth government to comply with the
installation ofthe curb ramps in compliance with the regulation enforcing the ADA;
B. Compel the Commonwealth of Puerto Rico and the Municipality of San Juan to
remove the architectural barriers that make sidewalks inaccessible to wheelchair
bound persons and those that have mobility disabilities;
C. Compel the Commonwealthof Puerto Rico, the Administration of Regulations and
Permits, through its administrator to cease from issuing permits to businesses that
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use the front of the establishment for parking, which obstructs access to persons with
disabilities that are wheelchair bound and have ambulatory disabilities, without first
providing and securing alternative access to the public sidewalks to persons with
disabilities;
D. Compel the Administrator of ARPE to provide alternative access to the public
sidewalks in all those cases where it has issued use permits to businesses in the
circumstances describedabove, that is where the businessuses parking spaces in front
of the establishment which obstruct access to persons with disabilities that are
wheelchair users and that have mobility disabilities;
E. Compel the Commonwealth Police Department through Superintendent Pedro
Toledo to enforce the transit laws in a non selective and discriminatory manner
including transit laws which prohibit parking on side walks and obstructing public
sidewalks;
F. Permanently restraining defendants their agents, servants and employees from
issuing use permits which alter the use of the sidewalks without first securing and
providing for alternative access to public sidewalks;
4.
Providing for the Court to retain jurisdiction of this matter for the purpose of
enforcing this Court's Order.
5.
Awarding plaintiff the reasonable costs and expenses of this action, including
attorney's fees in accordance with 42 U.S.C. §1988; and
6.
Grant such other relief as this Court deems just and equitable in light of the
circumstances.
19
Respectfully Submitted,
We hereby certify that this complaint is being filed through the ECF system
In San Juan Puerto Rico, this -
day of June, 2006.
S/NORA
v~
USDC PR NO: 201206
Vargas- Acosta Law Office
Edif. First Federal Suite 1004
Munoz Rivera #1056
Rio Piedras, Puerto Rico 00927
Tel. (787) 751-7485
Fax (787) 751-7485
20
~

_~`A.~ - Oficina del Procurador de las Personas con Impedimentos

Transcription

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