CGC · 16-551486 - City Attorney of San Francisco

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Kevin T. Snider, CA SBN 170988
Michael J. Peffer, CA SBN 192265
Matthew B. McReynolds CA SBN 234 797
PACIFIC JUSTICE INSTITUTE
212 9th Street, Suite 208
Oakland, CA 95827
Tel.: (510) 834-7232
Fax:(916)834-8784
E-mail: [email protected]
APR 14Z016
CLERK OF THE COURT
BY:
t}OWMAN LIU
Deputy Clerk
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Conrad Reynoldson, WA SBN 48187
WASHINGTON CIVIL & DISABILITY ADVOCATE
4421 51 51 A venue N mtheast
Seattle, WA 98105
Tel.: (206) 855-3134
E-mail: Comad,[email protected]
Attorneys for Plaintiffs
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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SAN FRANCISCO CHINESE CHRISTIAN
UNION, RICHARD LAM, PEGGY LAM,
PATRICK SULLIVAN, SYLVIA
TERPSTRA,
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Plaintiffs,
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[CCP §526a]
CITY AND COUNTY OF SAN FRANCISCO,
PIDLIP ALAN GINSBURG, GENERAL
MANAGER, RECREATION AND PARKS
DEPARTMENT, in his official capacity,
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Defendants.
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CGC · 16-551486
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
vs.
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Case No.
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Counsel of record and for service.
2 Application for pro hac vice pending.
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COMES NOW PLAINTIFFS who allege as follows:
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Introduction
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The City and County of San Francisco has installed a three-inch hole in the center of a three-
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foot diameter concrete base for public urination. This hole is called a pissoir. It is located at the
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southwest quadrant of Mission Dolores Park at a busy street corner, between a sidewalk and a train
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stop. Persons urinate into the hole in public view. There is no signage, accessibility for persons with
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disabilities, and no place to wash hands. This complaint is brought as a taxpayer action for equitable
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relief to prevent the continued illegal and wasteful expenditure of public funds to install and maintain
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the pissoir. The basis for the requested relief is that the pissoir violates the Jaw and public policy
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regarding privacy, sex discrimination, public health, access for persons with disabilities, and the
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Plumbing Code.
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halt the pissoir as a public nuisance, the Plaintiffs bring this Complaint.
Because the City Attorney and Attorney General have failed to bring an action to
Parties
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1.
Plaintiff, San Francisco Chinese Christian Union is a religious nonprofit corporation
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incorporated in the State of California and doing business in the City and County of San Francisco,
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California. Its members include fifteen churches within the City and County of San Francisco. These
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represent persons, both male and female, which include residents and citizens of the City and County of
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San Francisco who have paid a tax to the City and County of San Francisco. They use Dolores Park,
ride the San Francisco Municipal Transit Authority (SFMTA) in which they board and alight the train
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at the stop at the corner of 20th and Church Street. Further, some of their members are wheelchair
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bound or take care of a child or parent who uses a wheelchair. The San Francisco Chinese Christian
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Union has served the residents of San Francisco since 1916. Additionally, the purpose statement of the
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San Francisco Chinese Christian Union's bylaws state: "The purpose of this organization is to promote
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Christian fellowship among the churches and to work cooperatively in projects directed toward the
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community and in projects related to the spreading of the Christian Gospel." The mission and goal of
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the members includes caring for the sick and infirm within the community. To that end, the San
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Francisco Chinese Christian Union was one of fifteen organizations which raised funds to build the
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Chinese Hospital in 1923 and which was erected in 1925. 3 Since its inceptions, a representative from
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the San Francisco Chinese Christian Union has sat on the board of the Chinese Hospital. The San
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Francisco Chinese Christian Union has an interest in the care of the sick, including those with
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disabilities. Moreover, the San Francisco Chinese Cluistian Union has associational standing to bring a
taxpayer suit.
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2.
Richard Lam is a resident and citizen of the City and County of San Francisco,
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California, who owns real prope1iy within that jurisdiction and has, within one year of the filing of this
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Complaint, has been accessed for and liable to pay a tax - including, but not limited to, property taxes -
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to, and for the benefit and support of, the City and County of San Francisco. Mr. Lam uses Dolores
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Park, at times riding the train there.
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3.
Peggy Lam is a resident and citizen of the City and County of San Francisco, California,
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who owns real prope1iy within that jurisdiction and has, within one year of the filing of this Complaint,
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has been accessed for and liable to pay a tax - including, but not limited to, property taxes - to, and for
the benefit and support of, the City and County of San Francisco. Mrs. Lam uses Dolores Park, at
times riding the train there.
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4.
Patrick Sullivan is a resident and citizen of the City and County of San Francisco,
California who has, within one year of the filing of this Complaint, been accessed for and liable to pay
a tax - including, but not limited to, property taxes - to, and for the benefit and supp01i of, the City and
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County of San Francisco. Mr. Sullivan lives across the street from Dolores Park and has a clear view
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of persons using the pissoir from his kitchen window. He is informed and believes and thereon alleges
that the presence of the pissoir negatively impacts the value of his home.
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The Tung Wah Dispensary (est. 1899) was destroyed in the 1906 earthquake. The Chinese Hospital
was established in 1923 to replace the Dispensary.
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Sylvia Terpstra is a resident and citizen of the City and County of San Francisco,
California, who owns real prope1iy within that jurisdiction and has, within one year of the filing of this
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Complaint, has been accessed for and liable to pay a tax - including, but not limited to, property taxes -
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to, and for the benefit and support of, the City and County of San Francisco.
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at times riding the train there.
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She uses Dolores Park,
Defendant, City and County of San Francisco, is an entity established pursuant to A1iicle
XI, §6, of the California Constitution. The City and County of San Francisco has jurisdictional control
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over the Recreation and Parks Department, including Mission Dolores Park, the sidewalks surrounding
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Mission Dolores Park, and the San Francisco Municipal Transportation Agency which has a stop at the
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corner of 20th and Church Street. The City and County of San Francisco lays and collects taxes for the
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support of its activities within its jurisdiction. The City and County of San Francisco has authority
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over the installation and maintenance of the pissoir. Moreover, the City and County of San Francisco
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has authorized the expenditure of funds for the installation and maintenance of the pissoir.
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Defendant, Philip Alan Ginsburg, serves as the General Manager of the Recreation and
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Parks Depaiiment for the City and County of San Francisco. Mr. Ginsburg has operational oversight of
parks within San Francisco, including Mission Dolores Park. The Plaintiffs are informed and believe
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and thereon allege that at all times herein mentioned, Mr. Ginsburg was in office and had control and
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oversight over the installation of the pissoir. The Plaintiffs are further informed and believe and
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thereon allege that at all times herein mentioned, Mr. Ginsburg currently has control and oversight over
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the maintenance of the pissoir. He is named in his official capacity.
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Venue
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Venue in the Superior Court in and for the County of San Francisco is proper because
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both the real property (Mission Dolores Park, the sidewalks sunounding the park, and the train stop)
and the res (pissoir), which is the subject of this dispute, are located in the City and County of San
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Francisco, California. Moreover, all actions described herein occurred within the City and County of
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San Francisco. Further, the Plaintiffs reside and conduct business within the City and County of San
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Francisco. The Defendant conducts business within the City and County of San Francisco and
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Plaintiffs are informed and believe and thereon allege that the Defendant also resides there in the City
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and County of San Francisco, as well.
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Facts
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Mission Dolores Park is a 16.1 acre city park in San Francisco, California, located at
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the eastern edge of the Castro/Upper Market neighborhood, bounded by 18th Street to the north,
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Dolores Street to the east, 20th Street to the south, and Church Street to the west. The majority of
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Mission Dolores Park consists of open space, totaling approximately 11.9 acres, including a
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playground, two dog play areas, multi-use field, and other grassy and landscaped areas. Open between
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6 a.m. and 10 p.m., Mission Dolores Park is primarily used for active and passive recreation, as well as
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various public events, including concerts, outdoor movie nights, performances, political rallies, and
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other events.
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10.
The Mission Dolores Park Rehabilitation Project ("Project") was financed by the 2008
Clean and Safe Neighborhood Parks $153 million general obligation bond approved by San Francisco
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Voters n 2008. Id. at 1. The project sponsor, the San Francisco Recreation and Park Department used a
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portion of the $13.2 million for the Mission Dolores Park rehabilitation.
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Plaintiffs are informed and believe and thereon allege that two new restrooms were
included for a total of 34 fixtures (toilets). Mission Dolores Park maintenance staff is able to increase
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or decrease the number of fixtures available to the public by opening locked interior sliding partition24
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type doors in the new restroom buildings. Tempora1y portable toilets are added for large events
(greater than 5,000 people). Seasonal portable toilets are near the entry plaza.
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The project also included apissoir (also known as a pPod) in the park's southwestern
quadrant, by the entry plaza and next to the Muni tracks.
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The pissoir has a semi-circle screen constructed of wire fencing. Underneath the wire
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fencing is a mesh-type material that is transparent in nature. Plaintiffs are informed and believe and
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thereon allege that the material is a vinyl mesh coated polyester or perhaps polypropylene. Behind that
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there is a white material, the composition of which is unknown to Plaintiffs, with black lettering printed
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on it. The lettering reads: "How would you design this playground? Call (415) 895-9381" Other than
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that, the pissoir has no signage at all. This includes no signage that the hole is a place for urination.
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Further, there is no signage that the pissoir is for male, female or unisex use. Finally, there is no
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signage regarding disability access or pointing persons with disabilities to restroom facilities that
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accommodate persons with disabilities. The slopes of the ramps leading to and from the pissoir are
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steep and dangerous to persons with disabilities. The ramp running parallel to Church Street towards
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18th Street has slopes has steep as 1:2 and completely lacks handrails in some parts. The ramp towards
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20th Street has slopes as steep as 1:6.
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The pissoir has a 46" diameter concrete base - 36" at the entrance -and a drain with a
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fine mess grate to catch urine but block solids. The drain includes a one way valve. The mouth of the
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drain is five inches in circumference and the hole going to the sewer is tlu-ee inches in circumference.
Plaintiffs are informed and believe and thereon allege that the pissoir is designed to accommodate one
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user at a time. However, on accession, more than one person at a time urinates in it. A user can enter
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the pissoir from the north-south internal pathway and face the interior of the park. Views of the pissoir
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user from the interior of Mission Dolores Park are not completely blocked by a screen, which faces the
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Muni tracks. Views of the pissoir from the perimeter of the Park and public right-of-way near Church
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Street and 20th Street are not hidden.
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15.
The pissoir is not compliant with plumbing codes.
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The pissoir emanates odors which are offensive to the senses.
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The pissoir has no soap, running water, or other amenities for washing hands. Persons
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urinating in the hole leave the pissoir with unwashed hands and either continue on their way on the
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public sidewalks into the community or they board the Muni train which stops five to ten yards from
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the hole. These unsanitary conditions result in the spread of germs and disease.
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the public at large is endangered by the improper disposal of human waste in a public place.
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Allowing public urination at the pissoir is injurious to health. The safety and health of
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Allowing public urination at the pissoir is indecent, and offensive to the senses.
Facilitating public urination is indecent because it is grossly unseemly or offensive to manners and
morals.
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Allowing public urination at the pissoir is offensive to the senses. Urine is nauseating
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and offensive when excreted in public places. Public urination is offensive to the sense of sight and
smell.
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The pissoir is not compliant with laws requiring access to persons with disabilities -
pmticularly those whose mobility depends on a wheelchair.
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The individually named Plaintiffs include those who will not use the pissoir because
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such would violate their privacy by exposing them to public shame and embarrassment. These include
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both males and females.
The organizational Plaintiff - San Francisco Chinese Christian Union -
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represents both males and females who will not use the pissoir for the same reason. Fmther,
unexpectedly being exposed to someone ' s private parts also violates Plaintiffs' privacy.
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In the alternative, if the pissoir has been installed exclusively for males, then the female
Plaintiffs, including those represented by the San Francisco Chinese Christian Union, have been denied
equal access to toilet facilities. (Note that there is no signage indicated whether the hole is for male,
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female, or unisex).
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The San Francisco Chinese Christian Union represents persons whom are disabled or
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take care of a disabled parent of child. Because of its construction, persons with disabilities are unable
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to use the pissoir. Further, there is no signage directing persons with disabilities to facilities for which
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they would have access.
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Plaintiffs are informed and believe and thereon allege that the City and County of San
Francisco intends to expend tax dollars on the installation and maintenance of additional pissoirs within
its jurisdiction.
FIRST CAUSE OF ACTION
Violation Of Privacy
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The open-air urination hole violates the privacy of those who need to use the restroom
but would be required to expose their bodies and suffer the shame and degradation of urinating in
public view. Seclusion in bodily evacuation is a societal norm and constitutes one of the most basic
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expectations for privacy. Privacy is a fundamental right enumerated in the California Constitution. CA
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Const., Art. I, § 1 as well as the penumbra of rights in the U.S. Constitution.
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The hole provided for open-air urination is particularly egregious for women and girls.
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Because of the unique way in which females urinate, when there is no standard toilet for which they can
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sit, they must lift their skirts or pull down their pants and undergarments and squat over the hole. This
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exposes the entire lower part of their bodies to public view. Women and girls would be subject to
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extreme emba1rnssment in a measure not experienced by men or boys who merely unzip their trousers
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and aim at the whole when urinating. Indeed, whether a female faces the fence towards the train stop,
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turns her back to the fence, or squats sideways, she will be exposing much of her body to the public.
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Not only are the privacy rights of those having to publically relieve themselves in the
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sewer hole abridged, but the privacy rights of individuals who happen to come upon the one urinating is
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also violated. San Francisco's Board of Supervisors has recognized and further articulated the self-
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evident proposition that privacy is invaded when a member of the public is " unwillingly or
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unexpectedly exposed" to "a person's private paiis." S.F. Police Code§ 154(a). The euphemism
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"private pmis" is laid bare in subsection b which reads in full , as follows: " A person may not expose
his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet,
plaza, or public right-of-way as defined in Section 2.4.4(t) of the Public Works Code, or in any transit
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vehicle, station, platform, or stop of any government operated transit system in the City and County of
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San Francisco." (Emphasis added).
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Urinating in the pissuir at the present location is an act facially in contravention to the
text of the above-quoted law.
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S .F. Police Code § 154(a) is entirely consistent with section 4.01 of the San Francisco
Park Code which likewise prohibits exposure of the intimate patts of the body, i.e., "genitals, pubic
hair, perineum, anal region or pubic hair region." Section 4.0l(h).
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Because the act of public urination causes innocent members of the community to
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unwillingly and unexpectedly be exposed to intimate parts of a stranger's body, the open-airpissair
necessarily intrudes upon privacy.
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Tax dollars have been, and are being spent, by the City and County of San Francisco,
and at the direction of the Recreation and Parks General Manager on the above-described activities
which violate the privacy rights of Plaintiffs, their members, and the residents of San Francisco.
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Defendants have utilized employees of the City and County of San Francisco, including
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the Recreation and Parks Department, in canying out the installation and continued maintenance of the
pissoir. Such is against public policy and in violation of Plaintiffs' rights.
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The expenditure of taxpayer funds for the acts described above is an illegal expenditure
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of, waste of, or injmy to the estate, funds, or other property of the City and County of San Francisco.
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Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
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illegal expenditme of, waste of, or injmy to, the estate, funds, or other property of the City and County
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of San Francisco.
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Absent relief from this Court, Defendants will continue to engage in conduct in
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contravention to the rights of privacy, and by extension, public policy, as found in the U.S. and
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California Constitutions as well as local codes.
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Plaintiffs make this request for injunctive relief based upon their standing as taxpayers
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pursuant to CCP §526a.
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In addition, there is a disagreement between the parties as to whether open-air pissoirs
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violate privacy rights and are against public policy. Defendants believe that use of open-air pissoirs
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which entail urination in public view, does not violate either privacy rights or public policy relative to
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pnvacy. Plaintiffs disagree.
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Plaintiffs are informed and believe and thereon allege that Defendants will fmiher spend
tax dollars on the installment and maintenance of otherpissoirs within the jurisdiction of the City and
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County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to
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maintain the pissoir.
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As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
SECOND CAUSE OF ACTION
Unlawful Sex-Based Discrimination
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The pissoir is particularly onerous to the privacy rights of women seeking to use the
restroom.
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Plaintiffs are informed and believe and thereon allege that the pissoir has been installed
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for the exclusive use of males. Such violates State law and public policy requiring equal facilities for
both sexes. Health & Safety Code §§ 118500 and 118505 requires that every public agency that
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conducts an establislunent serving the public or open to the public and that maintains therein restroom
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facilities must have them available for each sex. These facilities must be in conformity with the State
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Plumbing Code. Under the Code, "[s]eparate toilet facilities shall be provided for each sex." 24 CCR
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412.3. The exception under the regulations is that facilities that are for single use must be permitted for
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both sexes.
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In light of these provisions, if the place for open-air urination is only for men, such
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unlawfully discriminates against women. Defendants have no narrowly tailored compelling interest,
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which uses the least restrictive means, for installing a facility for urination exclusively for males.
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Tax dollars have been, and are bei ng spent, by the City and County of San Francisco,
which violate rights to equal protection for Plaintiffs, their members, and the residents of San
Francisco.
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the Recreation and Parks Department in carrying out the installation and continued maintenance of the
pissoir in violation of Plaintiffs ' rights and against public pol icy.
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of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco.
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illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County
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of San Francisco.
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contravention to the rights of equal protection, and by extension, public policy, as found in the U.S. and
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California Constitutions as well as local codes.
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In addition, there is a disagreement between the parties as to whether open-airpissoirs
discriminate against women and girls and are against public policy. Defendants believe that use of
open-air pissoirs which entail urination in public view is not discriminatory as to females or against
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public p olicy. Plaintiffs disagree.
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49.
Plaintiffs are informed and believe and thereon allege that Defendants will further spend
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tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and
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County of San Francisco. Absent declaratory relief from this Comt, Defendants will continue to
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As such, Plaintiffs request declaratory relief based upon their standing as taxpayers .
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THIRD CAUSE OF ACTION
Violation Of Public Policy - Health & Hygiene
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The open-air place for urination has no sink with running water and soap. Providing a
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place to wash hands after use of the restroom is a common sanitation standard used in all fifty states.
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The open-air urinal is at a heavily trafficked train stop of the SFMTA. A person urinating in the hole
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can walk a few yards and board a train with unwashed hands. Such subjects the community to germs
and disease.
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52.
Ce1iain San Francisco officials attempt to justify the open-air urination hole above the
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sewer by pointing to other countries that have different - and indeed, lower - expectations for hygiene
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than the United States.
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sanitation and cleanliness. Indeed, in California, instruction on the impottance of hand washing is part
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of school curriculum. Health Education Standards for California Public Schools: Kindergarten
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The trajectory for American society is to take reasonable steps to increase
Through Grade Twelve, Standards 1.1.P and 7.2.P.
Moreover, the concept of hand washing -
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including after use of the restroom - is routinely taught in preschool in this country. For most homes,
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children are taught basic sanitation by their parents before they are old enough to enter such schools.
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Put simply, the open hole place for urination is inconsistent with public health policy in
relation to hygiene.
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which are against public policy relative to health and hygiene.
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the Recreation and Parks Department, in can-ying out the installation and continued maintenance of the
pissoir. Such is against public policy.
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of San Francisco.
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Absent rel ief from this Court, Defendants will continue to engage in conduct in
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contravention to public health policy.
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In addition, there is a disagreement between the parties as to whether open-air p;ssoirs
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are against public policy relative to health and hygiene. Defendants believe that use of open-air
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pissoirs which entail public urination without amenities for washing hands is not against public policy
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related to health and hygiene. Plaintiffs disagree.
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County of San Francisco. Absent declaratory relief from this Court, Defendants wi ll continue to
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FOURTH CAUSE OF ACTION
Violation Of Public Policy - Title II of the Americans with Disabilities Act of 1990
42 U.S.C. § 12101 et seq.
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62.
Title II of the ADA provides in pe11inent pal1: "[N]o 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." 42 U.S.C. § 12132.
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At all times relevant to this action, the Recreation and Parks Department of the City and
County of San Francisco was and is a "public entity" within the meaning of Title II of the ADA and
provides a pedestrian right of way program, service, or activity to the general public.
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Defendants are mandated to operate each service, program, or activity "so that, when
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viewed in its entirety, it is readily accessible to and useable by individuals with disabilities." 28 C.F.R. §
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35.150; see also 28 C.F.R. § 35.149. This requirement applies to all programs, services, and activities that
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a public entity offers, whether or not they are carried out in facilities that have been constructed or altered
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since January 26, 1992. The pissoir was installed after 1992.
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The regulations implementing Title II of the ADA provide that a public entity must
maintain the features of all facilities required to be accessible by the ADA. 28 C.F.R. § 35.133.
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Defendants have constructed, altered, or repaired parts of these facilities within the
meaning of the ADAAG and the UFAS, and that Defendants, through its administrative methods,
policies, and practices, have failed to make the Dolores Parkpissoir readily accessible to and usable by
persons with disabilities as required under federal accessibility standards and guidelines.
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Since March 15, 2012, Defendants have constructed, altered, or repaired pa1ts of these
facilities within the meaning of the ADAAG and the UFAS, and that Defendants, through their
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administrative methods, policies, and practices, have failed to make such facilities compliant with the
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ADAAG and the UFAS as updated in 2010, as required under 28 C.F.R. § 35.15l(c)(5).
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68.
The 2010 ADA Standards for Accessible Design (2010 Standards) specify the
requirements for compliance under the above.
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69.
Section 605 .2 of the 2010 Standards specifies that, "Urinals shall be the stall-type or the
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wall-hung type with the rim 17 inches (430 mm) maximum above the finish floor or ground. Urinals shall
be 13 1/2 inches (345 mm) deep minimum measured from the outer face of the urinal rim to the back of
the fixture."
70.
Per section 405.2 of the 2010 Standards, "Ramp runs shall have a running slope not steeper
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than 1: 12." It should be noted that "In existing sites, buildings, and facilities, ramps shall be permitted to
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have running slopes steeper than 1: 12 complying with Table 405.2 where such slopes are necessary due to
space limitations." Id. However a slope greater than 1:8 is not permitted even under this potential
exception. Id.
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Under section 405.8 of the 2010 Standards, "Ramp runs with a rise greater than 6 inches
(150 mm) shall have handrails complying with 505."
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Additionally, per section 505.3 of the 2010 Standards, "Handrails shall be continuous
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within the full length of each stair flight or ramp run. Inside handrails on switchback or dogleg stairs and
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10
11
ramps shall be continuous between fli ghts or rnns."
73.
Plaintiffs are informed, believe, and thereon allege that Defendants and their agents and
12
employees have violated and continue to violate Title II of the ADA by fai ling to construct and
13
maintain the Mission Dolores Park pissoir in an accessible manner.
14
15
74.
Defendants and their agents and employees have violated and continue to violate Title II of
the ADA by failing to timely respond to and remedy complaints regarding the lack of accessibility of the
16
17
18
Mission Dolores Park pissoir.
75.
19
20
which violate public policy to access of restroom facilities for the disabled.
21
22
76.
the Recreation and Parks Department, in carrying out the installation and continued maintenance of the
23
24
25
26
77.
27
28
-15Complaint
of San Francisco.
1
2
3
4
5
6
7
78.
contravention to access for citizens with disabilities to restroom facilities.
79.
80.
violate disability rights and are against public policy to provide access to restroom facilities for persons
8
with disabilities. Defendants believe that pissoirs are consistent with access to restroom facilities for
9
10
11
persons with disabilities. Plaintiffs disagree.
81.
Plaintiffs are informed and believe and thereon allege that Defendants will fmther spend
12
13
County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to
14
15
82.
As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers.
16
FIFTH CAUSE OF ACTION
Violation Of Public Policy - Section 504 of the Rehabilitation Act of 1973
29 U.S.C. § 794 et seq.
17
18
19
83.
Section 504 of the Rehabilitation Act of 1973 provides in pe11inent pait: " [N]o otherwise
20
21
qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the
22
pmticipation in, be denied the benefits of, or be subjected to discrimination under any program or activity
23
receiving federal financial assistance .... " 29 U.S.C. § 794(a).
24
25
26
84.
Plaintiffs are otherwise qualified to participate in the services, programs, or activities that
are provided by the Recreation and Parks Department of the city and County of San Francisco at
Dolores Park. See 29 U.S.C. § 794(b).
27
28
85 .
The Recreation and Parks Depaitment of the City and County of San Francisco is a
-16Complaint
..
direct recipient of federal financial assistance sufficient to invoke the coverage of Section 504, and has
1
2
3
received such federal financia l assistance at all times relevant to the claims asserted in this Complaint.
86.
Defendants and their agents and employees have violated and continue to violate the
4
Rehabilitation Act and the regulations promulgated thereunder by excluding the persons with disabilities
5
from participation in, denying persons with disabilities the benefits of, and subjecting persons with
6
disabilities, based solely by reason of their disabilities to, discrimination in the benefits and services
7
offered by the Recreation and Parks Department of the City and County of San Francisco at Mission
8
Dolores Park and for the reasons set forth above.
9
10
87.
As a direct and proximate result of the aforementioned acts, disabled citizens of San
11
Francisco, including persons that the San Francisco Chinese Christian Union and its members care for,
12
suffered and continue to suffer difficulty, hardship, isolation, and segregation due to Defendants'
13
failure to remediate the accessibility at the pissoir in Dolores Park. These failures have denied
14
15
Plaintiffs the full , equal, and meaningful access to the pissoir that Section 504 requires.
88.
Because Defendants ' discriminatory conduct presents a real and immediate threat of
16
cunent and continuing violations, declarato1y and injunctive relief are appropriate remedies.
17
18
89.
19
20
which violate the rights of residents of San Francisco with disabilities.
21
22
90.
the Recreation and Parks Department, in canying out the installation and continued maintenance of the
23
24
25
26
91.
27
Thus, Plaintiffs bring this action under CCP §526a to obtain a judgment to restrain and prevent the
28
-1 7Complaint
of San Francisco.
1
92.
2
3
4
County of San Francisco. Absent relief from this Court, Defendants will continue to engage in conduct
5
in contravention to access for citizen with disabilities to restroom facilities.
6
7
93.
8
94.
9
10
11
12
13
95.
14
As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers.
SIXTH CAUSE OF ACTION
Violation Of Public Policy - Unruh Civil Rights Act
15
16
96.
Defendants operates Mission Dolores Park within the jurisdiction of the State of
17
18
19
California and, as such, is obligated to comply with the provisions of the Unruh Act, Cal. Civ. Code, §
51, et seq. (" the Unruh Act").
20
21
22
23
97.
The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code, § 51, et
98.
The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to full and
seq.
equal accommodations, advantages, facilities, privileges, or services in all business establishments of
24
every kind whatsoever within the jurisdiction of the State of California. The Unruh Act also provides
25
26
27
28
that a violation of the ADA is a violation of the Unruh Act.
99.
Defendants have violated the Unruh Act by, inter alia, denying persons with disabilities,
full and equal accommodations, advantages, facilities, privileges, or services offered by Defendants.
-18Complaint
Defendants have also violated the Unruh Act by violating the ADA, as set fotth above.
2
100.
Defendants have violated the Unruh Act by, inter alia, failing to operate its services on a
3
nondiscriminatory basis and failing to ensure that persons with disabilities have nondiscriminatory
4
access to the Mission Dolores Park pissoir.
5
6
7
101.
In doing the acts and/or omissions alleged herein, Defendants wrongfully and unlawfully
denied access to its facility to persons with disabilities and acted with knowledge of the effect its
conduct was having on persons with physical disabilities.
8
I 02.
9
10
11
12
13
14
which violate the disability rights of Plaintiffs, their members, and the residents of San Francisco.
103.
15
104.
16
17
18
19
20
of San Francisco.
21
22
I 05 .
Plaintiffs are informed and believe and thereon allege that Defendants will fmther spend
23
24
25
26
27
28
in contravention to access for citizens with disabilities to restroom facilities.
106.
107.
-19Complaint
1
2
3
SEVENTH CAUSE OF ACTION
Violation Of Public Policy - Construction Noncompliant With Plumbing Code
4
5
6
7
108.
A public restroom must meet all California codes and fixture requirements. The pissoir
does not meet such codes and fixture requirements for its intended use. This includes California Health
8
and Safety Code Section 17921.4 and sections 402.3 .3 and 402.3 .4 of the 2010 California Plumbing
9
IO
11
Code.
109.
Tax dollars have been, and are being spent, by the City and Cow1ty of San Francisco,
12
and at the direction of the Recreation and Parks General Manager, on the installation and maintenance
13
of the pissoir.
14
110.
Defendants have utilized employees of the City and County of San Franci_sco, including
15
16
17
18
pissoir.
111.
The expenditure of taxpayer funds for the installation and maintenance of restroom
19
facilities that are noncompliant with California laws related to plumbing is an illegal expenditure of,
20
waste of, or injury to the estate, funds, or other property of the City and County of San Francisco.
21
22
23
of San Francisco.
24
25
112.
26
27
28
in contravention to plumbing codes.
-20Complaint
113.
2
3
114.
In addition, there is a disagreement between the pai1ies as to whether open-air pissoirs
4
are compliant with plumbing codes. Defendants believe that pissoirs are consistent with such codes, or
5
in the alternative, that the City and County of San Francisco is not required to comply with the law
6
related to the plumbing codes for a pissoir. Plaintiffs disagree.
7
115.
8
EIGTH CAUSE OF ACTION
Violation Of Public Policy- Enabling Of Public Nuisance
9
10
11
116.
The installation of the pissoir creates the conditions for a public nuisance.
12
117.
Enabling public urination at the pissoir - pai1icularly without amenities for the washing
13
14
of hands - is injurious to health.
118.
Enabling public urination at the pissoir promotes conduct which is indecent.
119.
Enabling public urination at the pissoir is offensive to the senses.
120.
15
16
17
18
19
20
21
22
which create the conditions for a public nuisance.
121.
23
122.
24
25
26
27
28
of San Francisco.
-21Complain!
'
.
123.
2
3
4
5
6
7
Absent relief from this Court, Defendants will continue to engage in conduct which
creates the conditions for a public nuisance and is thus against public policy.
124.
125.
County of San Francisco. Absent declaratory relief from this Court, Defendants wi ll continue to
8
9
10
126.
11
create the conditions, and enable, a public nuisance as against public policy. Defendants believe that
12
use of open-air pissoirs neither creates the conditions for, nor enables, a public nuisance. Plaintiffs
13
disagree.
14
127.
15
PRAYER
16
17
18
19
20
21
22
23
24
25
26
27
WHEREFORE, Plaintiffs prays for reliefs as follows:
a. An order, pursuant to CCP §526a, enjoining the continued unlawful and wasteful
expenditure of tax dollars on maintaining, and holding open for use to the public, the
pissoir;
b. An order, pursuant to CCP §526a, enjoining future installations and maintenance of
pissoirs within the jurisdiction of the City and County of San Francisco;
c. An order, pursuant to CCP §526a, declaring that the pissoir violates privacy;
d. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the
pissoir constitutes unlawful sex-based discrimination;
e. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the
pissoir violates public policy related to public health and hygiene;
28
-22Complaint
..
f. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the
pissoir violates public policy related to compliance with California and Federal
2
Disability Laws;
3
4
g. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the
pissoir violates public policy related to the requirement that construction of restroom
5
facilities comply with the Plumbing Code;
6
7
h. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the
pissoir violates public policy by creating a public nuisance;
8
9
10
11
12
1.
Attorneys fees pursuant to CCP §1021.5 or any other applicable law;
j . Costs;
k. Such other and fmther relief as the court deems just and proper.
Dated: April 12, 2016
13
14
15
16
17
Kevin T. Snider, Attorney for Plaintiffs
PACIFIC JUSTICE INSTITUTE
P.O. Box 276600
Sacramento, CA 95827
Tel.: (916) 857-6900
Fax: (916) 857-6902
E-mail: [email protected]
18
19
20
21
22
23
24
25
26
27
28
-23Complaint
CM-010
ATTORNEY OR PARTY 'MHIOUT ATIOR NEY (Nome, State Bar numbor, and a<kfross):
- Kcviu T. Snider (SBN 170988)
FOR COURT USE ONLY
ENDORSED
F I L )2 Pm.
Supcnor C,,ur1 o la11 om1a
2 I 2 9tli SL Suite 208
Pacific Justice Insti tute
int~· e"' • <:'1Ulr l5C0
(
51 0-8 34-723 2
FAX NO.: 510-834-8784
San Francisco Chinese Christian Union, et al.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
sTREET AooREss· 400 McAllister St.
TELEPHONENO:
AnoRNEYFOR<Name1:
APR 14 2016
CLERK OF THE COURT
MAILINGADDRESS:
c1Tv ANo z1P cooe: S~n. Franci sc(: CA 94102
BRANCH NAME. Civic Center ourthouse
BY
CASE NAME:
San Francisco Chinese Christian Union, et al. v. San Francisco
BOWMAN LIU
,
Deputy Clerk
6. 5 5, 4 I 6
CIVIL CASE COVER SHEET
CAt NUG3EC
Complex Case Designation
Limited
Counter
Joinder
(Amount
JUDGE:
Filed with first appearance by defendant
demanded is
DEPT·
$25,000 or less)
(Cal. Rules of Court, rule 3.402)
Items 1-6 below must be completed (see instructions on page 2).
1. Check one box below for the case type that best describes this case:
Auto Tort
Contract
Provisionally Complex Civil Litigation
(Cal. Rules of Court, rules 3.40<>-J.403)
[ I Auto (22)
Breach of contract/warranty (06}
Antitrust/Trade regulalion (03)
Uninsured motorist (46)
Rule 3.740 collections (09}
D
0
Unlimited
(Amount
demanded
exceeds $25,000)
D
D
D
D
Other Pl/PD/WO (Personal Injury/Property
Damage/Wrongful Death) Tort
Asbestos (04}
Product liability (24)
Medical malpractice (45)
Other Pl/PD/WD (23)
Non-Pl/PD/WO (Other) Tort
D
D
D
D
D
CLJ
D
D
D
D
D
D
D
Other collections (09)
Insurance coverage (18)
Other contract (37)
Real Property
Eminent domain/Inverse
condemnation (14)
Wrongful eviction (33)
Other
real property (26)
Business tort/unfair business practice (07)
Unlawful Detainer
Civil rights (08)
D
Commercial (31)
Defamation (13)
D
D
D
D
D
Fraud (16)
D
Judicial Review
Asset forfeiture (05)
Petition re: arbitration award (11)
Writ of mandate (02)
Other employment (15)
Other judicial review (39)
D
D
D
D
D
Construction defect (10)
D
Mass tort (40)
D
Environmentalffoxic tort (30)
D
D
Securities liligation (28)
Insurance coverage claims arising from the
above listed provisionally complex case
types (41)
Enforcement of Judgment
D
Enforcement of judgment (20)
Miscellaneous Civil Complaint
D
D
Residential (32)
Drugs(38)
lntelleclual property (19)
Professional negligence (25)
Other non-Pl/PD/WO tort (35)
§..'!!E?loyment
LJ Wrongful termination (36)
D
D
D
RIC0(27)
Other complaint (not specified above) (42}
Miscellaneous Civll Petition
Partnership and corporate governance (21)
D
D
Other petition (not specified above) (43)
is
L£J is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
factors requiring exceptional j udicial management:
2. This case
a.
3.
4.
5.
6.
D
b.
D
c.
D
LJ
Large number of separately represented parties
Extensive motion practice raising difficult or novel
issues that will be time-consuming to resolve
Substantial amount of documentary evidence
Remedies sought (check all that apply): a. D
monetary
d. D
Large number of witnesses
e. D
Coordination with related actions pending in one or more cour:ts
in other counties, states, or countries, or in a federal court
f. D
b.
0
Substantial postjudgment judicial supervision
nonmonetary; declaratory or injunctive relief
c.
D
punitive
Number of causes of action (specify):
D
This case
is
~ is not a class action suit.
If there are any known related cases, file and serve a notice of related case. (You may use fonn CM-015.)
Date: April 8, 2016
Kevin T. Snider
(TYPE OR PRINT NAME)
NOTICE
~ ~ATUR~TY~RNE~
FOR PARTY)
• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
in sanctions.
• File this cover sheet in addition to any cover sheet required by local court rule.
• If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
• Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical pu rposes on lv.
l'eao 1of2
fonn Adopted fO< M andata<y Use
Judicial Councn of Cal~omra
CM·010 (Rev July 1, 2007]
CIVIL CASE COVER SHEET
Cal. Rules of Coon. rules 2.30. 3.220, 3400-3 403. 3.740 ;
Cat Standards of Judicial Administration, std. 3. 10
W\VW.covrtfnfo en.gov
SUM-1 00
SUMMONS
FOR COURT USE ONLY
(SOLO PARA USO DE LA CORTE)
(CITACION JUDICIAL)
NOTICE TO DEFENDANT:
(AV/SO AL DEMANDADO):
_,.
City and County of San Francisco, Philip Alan Ginsburg, General
Manager, Recreation and Parks Department, in his official capacity
~
C'
~ ,,
~f1'\
- o . c::
-.. 0 0
;;Q
O (")
~ rn
~
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
(/l-
~ ~f"\
San Francisco Chinese Christian Union, Richard Lam, Peggy Lam,
Patrick Sullivan, Sylvia Terpstra
fl"\
v>
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/se/fhelp ), your county law library, or the courthouse nearest you . If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center
(www.courtinfo.ca.gov/ se/fhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
1AVISOI Lohan demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su version. Lea la informaci6n a
continuaci6n.
Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citaci6n y pape/es /ega/es para presentar una respues/a por escrito en es/a
corte y /1acer que se entregue una copia al demandante. Una carta o una llamada telef6nica no lo protegen. Su respues/a por escrito tiene que es/ar
en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formu/ario que usted pueda usar para su respues/a.
Puede encontrar estos formularios de la corte y mas informaci6n en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
biblioteca de /eyes de su condado o en la corte que le quede mas cerca. Si no puede pagar la cuota de presentaci6n, pida al secretario de la corte
que le de un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podra quitar su sue/do, dinero y bienes sin mas advertencia.
Hay o/ros requisi/os /ega/es. Es recomendab/e que llame a un abogado inmedia/amente. Si no conoce a un abogado, puede llamar a un servicio de
remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios /ega/es gratuitos de un
programa de servicios legales sin fines de /ucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services,
(www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en con/ac/o con la corte o el
co/egio de abogados locales. A VISO: Por fey, la corte tiene derecho a rec/amar las cuo/as y Jos costos exentos por imponer un gravamen sobre
cualquier recuperaci6n de $10,000 6 mas de valor recibida med/ante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso.
The name and address of the court is:
(El nombre y direcci6n de la carte es):
San Francisco County Superior Comt
400 McAllister St.
San Francisco , CA 94102-4515
~~PUTY C' ~K
l
P.t"\\~t\,1AN llf
DATE:jApril 2016
Clerk, by
(Fecha
Uc
u:n
(Secretario)
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)
(Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are served
!SEAL]
1.
as an individual defendant.
as the person sued under the fictitious name of (specify):
2.
, Deputy
(Adjunto)
D
c::::J
3.
D
on behalf of (specify):
under:
4.
D
D
D
D
D
CCP 416.10 (corporation)
CCP 416.20 (defunct corporation)
CCP 416.40 (association or partnership)
D
D
D
CCP 416.60 (minor)
CCP 416. 70 ( conservatee)
CCP 416.90 (authorized person)
other (specify}:
by personal delivery on (date):
Pa o 1 o f1
Form Adopted for Mandatory Use
Judicial Council of California
SUM-100
IRev. July 1, 2009]
SUMMONS
Codo of Civil Procedure§§ 412.20, 465
WW\v.courtinfo.ca.gov

CGC · 16-551486 - City Attorney of San Francisco

Transcription

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