October 15, 2007
Re: FTA Complaint Number 06-0135
Dear [name withheld]:
This letter responds to your complaint against the San Francisco Bay Area Rapid Transit District (BART) alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA) and the U.S. Department of Transportation's (DOT) implementing regulations at 49 CFR parts 27, 37, and 38. The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation properly implement the ADA, the DOT ADA regulations, and Section 504 of the Rehabilitation Act of 1973.
In the FTA complaint investigation process, we analyze the complainant's allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.
Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit property.
Specifically, your complaint of February 16, 2006, alleges that BART unlawfully denied you access to BART facilities and vehicles as a result of your use of roller skates, which you state you use as a mobility aid for a disability.
FTA investigated your allegation and sent an information request to BART. We received a response from BART that provided relevant information, as well as several follow-up letters, phone calls, and emails clarifying BART’s initial response. In addition, you have supplemented your initial complaint with several letters, phone calls, and emails that clarified many issues related to your complaint. Your allegation is addressed in detail below.
A. Relevant Issues
The primary issue on which you and BART disagree is whether your use of roller skates on BART vehicles and in BART facilities constitutes a direct threat . Notably, there are other related issues, including whether roller skates can be considered a mobility aid, whether accommodation of your disability by allowing use of roller skates constitutes a fundamental alteration of service, and whether you are person with a disability under Federal law. Neither of the parties have conclusively addressed these additional issues. Accordingly, FTA will address the direct threat and reasonable modification issues as if the other issues were decided in your favor, but allow BART to raise them separately if it chooses.
BART has raised arguments that California state law prohibitions of roller skates in transit facilities overrides the requirements under Federal law that transit providers reasonably modify service to permit access by people with disabilities. BART points to exceptions under the relevant Federal regulations that allow a transit provider to exclude individuals with disabilities for illegal conduct and the absence of an explicit statement regarding Federal law supremacy in the DOT regulations at 49 CFR part 37. FTA has responded to BART’s contentions by means of direct conversation with members of BART’s staff. In summary, we have pointed to general principles of Federal law supremacy, the explicit statement of Federal law supremacy in 49 CFR § 27.17, and the inconsistency of BART’s argument with basic principles and objectives of the Rehabilitation Act and the ADA. We note that BART’s arguments for denying roller skate access focuses on issues of reasonable modification and direct threat, not Federal and state law supremacy.
BART has also argued that there is no need to provide a reasonable modification, following the logic adopted by the U.S. Court of Appeals for the 5th Circuit in Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004). The Melton court held that there is no requirement under DOT regulations to provide a reasonable modification in transit service because paratransit service is the statutorily determined reasonable modification for transit. Additionally, the court held that the Department of Justice (DOJ) requirements to modify service are not applicable to transit. The court’s logic is at odds with the position of DOT and not controlling over the present question of BART’s obligations to you in matters wholly occurring in California, under jurisdiction of the 9th Circuit Court of Appeals.
B. BART’s Obligation to Make Reasonable Modifications of Service
BART, as a transit provider, may implement generally applicable rules and regulations, even where those rules and regulations have the effect of limiting service to people with disabilities. Transit providers must, however, make reasonable modifications to such rules and regulations in order to provide access to people with disabilities who would otherwise be denied access because of their disabilities.
Although the requirement for public entities to make reasonable modifications in their policies and practices is not explicitly addressed in the DOT ADA regulations, it is included in DOJ regulations, which are incorporated by reference at 49 CFR § 37.21(c). The relevant DOJ regulation states: “A public entity shall make reasonable modification in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability....” 28 CFR § 35.130(b)(7).
If making the modification creates a direct threat to others, however, the modification does not need to be made by the transit provider. In such cases, the transit provider must demonstrate the existence of the direct threat by fully considering all required factors, sufficiently deliberating, and making a clear fact-based decision regarding the need to make a modification in the particular circumstance. The conclusion that a given modification of service would create a direct threat may not be speculative, conclusory, discriminatory, or based on unlikely factual scenarios. The DOJ definition of direct threat dictates that only dangers to others, and not dangers to the person requesting the modification, be considered.
Based on correspondence with BART and publicly available information concerning BART stations and vehicles, there appear to be four distinct environments encountered by patrons of BART service:
- BART rapid rail vehicle passenger areas.
- BART platform areas from which patrons board onto or alight from BART vehicles.
- BART concourse areas, either below or above the platform, which BART patrons enter from the street or adjoining facilities and which BART patrons must pass through in order to reach the platform. These areas are at least partially sheltered and include fare payment machines, customer service, turnstiles, and elevators and/or escalator access to the platform.
- BART parking lots, bus areas, outside walkways, and other outside areas adjoining BART stations, which patrons must pass through in order to reach the station concourse.
Our analysis addresses each of the four distinct environments individually because of the different safety concerns present in each. A premise of our analysis is that incompatibility of roller skate use in one of the environments, because of direct threat, does not necessarily mean that roller skate use will be incompatible with the other areas. Additionally, for each of the environments, we consider whether changes in the typical number of patrons that occur throughout the service day will create or mitigate the level of danger from use of roller skates in that area.
In the documentation in support of allowing access to all areas within BART facilities, you note your ability to use roller skates in a particularly safe manner. We have no reason to doubt your description of your ability; however, we must address this issue in terms of the class of mobility aid users. Consequently, our analysis is based on the performance expected of a competent roller skate user with a disability, not one of your atypical abilities.
1. BART has demonstrated that use of roller skates as a mobility aid on BART vehicles creates a direct threat.
BART uses rapid rail vehicles that are joined together to form a train of vehicles several hundred feet long. Individual vehicles do not, typically, have operators or other BART personnel on board, but are instead operated by a single operator in the lead car who is responsible for the entire train. The nature of rail service means that the vehicles may leave the station before every passenger has a chance to find a seat.
Typically, the danger to most riders from moving unexpectedly is mitigated by the presence of grab bars throughout each vehicle. Notably, it is not clear that you are proposing to sit on BART vehicles, which may be incompatible with your disability. In any case, every rider on a BART vehicle can reasonably expect to stand at some point while riding . The grab bars on BART vehicles are designed, however, for use by riders while standing directly on the vehicle floor or sitting in a secured mobility aid, not for riders standing in roller skates.
When arriving at stations, BART vehicles decelerate rapidly and when leaving the stations, accelerate rapidly. According to BART, trains typically enter the stations at 36 mph before coming to a stop within the length of the platform. The vehicles travel at rapid speed between stations, but often decelerate or accelerate because of other trains on the track, the need to change tracks, maintenance work, hazards on the tracks, and for other reasons. There are no warnings before most sudden changes in speed. As any rider of rapid rail vehicles has experienced, each time the vehicle decelerates and accelerates passengers are subjected to strong forces in the opposite direction. Such forces are likely to cause a roller skate user to fall. Roller skate users are more likely to fall than other patrons because they cannot use traction with the vehicle floor for stability.
Unlike wheelchairs and Segways, roller skates cannot be mechanically secured. Roller skates require the user to apply a brake by tilting a foot backward and shifting weight to compensate. The in-line skate user must apply constant force on the brake-side in-line skate in order to prevent movement, which requires careful balance. Alternative methods of braking (such as T-stopping) require similar balancing and are less effective. Unlike a Segway or wheelchair, the user must maintain constant balance while standing. Gripping a bar or seat will not prevent the roller skater’s feet from moving, and may even increase risk of falling onto or into other passengers. In summary, maintaining balance is difficult because the roller skate user is standing on wheels. By contrast, walkers, Segways, wheelchairs, and other more common mobility aids have tremendous stability, low centers of gravity, and securable wheels.
Additionally, the passenger areas of rapid rail vehicles of the type used by BART have many tripping hazards. The vehicles are very different from large open floor spaces that are ideal for roller skating. They are long and narrow, contain poles and barriers, and afford little to no space to navigate or avoid hazards, even when the vehicles are not moving. BART has pointed to evidence that roller skate users typically require several feet of lateral space in order to propel themselves. Moreover, entering the vehicles requires patrons to travel across tactile warning strips, which have raised bumps intended to warn patrons, particularly people with low vision, that they are nearing the platform edge. BART persuasively argues that the raised bumps pose a threat when encountered by a roller skate user. Discussions with manufacturers of tactile warning strips confirm that assessment.
Additionally, BART has argued that “falling is an inherent part of in-line skating.” They argue that large numbers of skaters fall every year and point to extensive consumer information on hazards of falling and the considerable market for protective gear to protect roller skate users from injuries that could result from falling. While FTA feels that BART overstates the risk of falling, there is substantial evidence that roller skaters can and do fall. Intuitively, the risk of falling is heightened where there is an unstable surface, such as the vehicle floor of a moving rapid rail vehicle.
When a roller skater user falls, he or she is likely to injure others who are nearby. Even during non-peak hours, riders on rapid rail vehicles are in close proximity because of the limited space in the vehicles. Consequently, FTA agrees with BART’s conclusion that allowing riders to use roller skates on BART vehicles would create a direct threat to the safety of others. BART is therefore not required to make a modification to their service to allow you to use your roller skates on vehicles.
2. BART has demonstrated that use of roller skates as a mobility aid on BART platforms creates a direct threat.
Much of this analysis relies on facts established in the previous section. Vehicles enter and leave BART stations at rapid speeds. The tactile warning strips create a tripping hazard to roller skate users boarding and alighting from vehicles. Roller skate users require significantly more lateral space to move than patrons who walk or use other mobility aids. Additionally, movement in narrow corridors, such as station platforms, increases the risk of falling.
There are additional risks that make roller skate use in BART stations more hazardous than use on rapid rail vehicles. Principally, there are no barriers in BART stations that protect patrons from falling onto the tracks. The risk of injury to individuals who fall onto empty tracks is substantial. It is even more dangerous for patrons to fall in front of a moving vehicle or to collide with a moving vehicle. A collision between a roller skate user and a patron, particularly an inattentive one, could cause such a fall or collision. Additionally, BART points to evidence that even where the roller skate user, and nobody else, falls onto the tracks, there are significant safety risks to BART personnel and vehicle passengers. The dangers to people on vehicles include injury from making sudden emergency stops and severe emotional trauma, which BART shows is often experienced by vehicle operators after collisions with people on the tracks. The dangers to people at the station result from likely rescue attempts where anyone falls onto the tracks and include electrocution from the third rail, injury while descending onto the tracks, and collision with BART vehicles. BART’s conclusion on this point is based on past incidents in which patrons have fallen onto the tracks at BART facilities.
Although the risks of colliding with another patron are less when there are fewer patrons on the station platform, there is no point in the service day where the danger is sufficiently reduced to eliminate the threat. With increased wait time between vehicle arrivals (headways) and the need to transfer between different routes, it is likely that the platform will be crowded, at least occasionally, outside of peak service hours. Moreover, many of the key factors contributing to the danger, such as the presence of fast moving vehicles, the lengthy fall onto the tracks, the lack of barriers between the platform and the tracks, and the narrow walkways at points on the platform, are equally present during peak and off-peak service hours. Consequently, the danger to others that results from use of roller skates on BART platforms remains substantial at all times of the day.
For the preceding reasons, FTA agrees with BART’s argument that allowing you to use roller skates on a BART platform creates a direct threat to the safety of others and may therefore be prohibited.
3. BART has not demonstrated that use of roller skates as a mobility aid in BART concourse areas creates a direct threat to the safety of others.
Many of the hazards that exist on BART platforms and in BART vehicles are absent in BART concourses. There are no dangers from fast moving vehicles or risks of falling onto the tracks. Unlike the vehicles, the concourse floor is stable. Moreover, the concourse spaces are not long and narrow or strewn with obstacles. Except for momentary shelter from rain, there is no reason for large numbers of patrons to gather and wait in the concourse area.
According to BART, wet surfaces are the most likely cause of a fall in the concourse areas. Although slips are concededly a risk, they are not a problem that is unique to roller skate users. As BART indicates, wet surfaces and spills should be marked and cleaned up by BART staff. BART also notes that the wet surfaces most often result from rain. In 2006, there were 95 days of rain in San Francisco (source: Golden Gate Weather Service - http://ggweather.com/sf/daily.html#2006). With few exceptions, rain occurs primarily between the months of October and May. On many of the days in past years when it rained, there was insufficient rainfall to create puddles. Consequently, at the very least, rainfall should not be a concern for most days of the year. On the relatively few days where there is sustained rainfall, a restriction on roller skate use may be appropriate, but it is also unlikely that a roller skate user would attempt to access a station in such a situation.
In both the case of spills and rainwater, the risk from wet surfaces is created by the liquid itself, and affects all patrons (except possibly wheelchair and scooter users), regardless of whether they are using roller skates. Consequently, singling out roller skate users seems inconsistent with the general acceptance of the hazards posed to patrons in general.
BART has also argued that the size of the roller skates creates a tripping hazard to other patrons. This argument is minimized by the fact that BART allows patrons to bring (but not ride) bicycles into BART stations outside of peak service hours. Furthermore, BART does not prohibit bags, service animals, strollers, and many other items that could be tripping hazards. Consequently, for BART to single out an in-line skate as particularly risky, where the skate is only a few inches longer than a regular shoe, seems too speculative and inconsistent to justify prohibiting roller skates for direct threat.
BART points to the fact that concourses were not designed for shared use between pedestrians and roller skate users. On the other hand, BART accommodates many other mobility aids, including wheelchairs. DOT has issued guidance saying that in most cases, use of a Segway as a mobility aid by people with disabilities must be permitted in transit facilities. It is hard to distinguish the risks of collision from Segway use or, as you indicate, wheelchair use from the risk that would result from roller skate use in concourse areas. Again, the fact that BART allows patrons to walk with their bicycles in BART stations at certain times of the day indicates that, at least for those times, concourses are not so crowded that collisions would be inevitable.
BART alleges that surfaces in BART stations, even when dry, create a risk of falling. A roller skate user who loses control or falls is more likely to cause injuries to other patrons. Notably, as you have pointed out, because roller skates are secured to the user, there is no risk of the mobility aid itself causing injury, such as would occur if a user lost control of a skateboard, or even a wheelchair, scooter, or Segway. BART argues that roller skate use in concourses creates an unacceptable risk of falling as a result of slick and changing surfaces. BART does not explain why any of the surfaces used in its stations are dangerous when dry and skated over at low speed. Furthermore, BART does not demonstrate that dramatic changes in surface character are common in BART concourse areas or that such changes would create significant risk of falling when encountered at low speed.
Concededly, there are increased risks of collisions and injury where a roller skate user travels at high speed. Many of the same risks apply to people using other mobility aids at high speed, or running. BART may, and likely has, restricted running and high speed mobility aid use in its facilities. Such a rule of general application could just as easily be applied to a roller skate user.
Data provided by BART shows that collisions already occur in BART concourse areas. Collisions are an unavoidable occurrence wherever people are in close proximity, but they are not uniquely associated with roller skate use. As you indicate, BART has not presented evidence that roller skate users are unable to stop as quickly as someone moving at comparable speed in a wheelchair, Segway, or even walking. BART has not demonstrated that speed restrictions cannot be effectively applied to roller skate users in the same fashion as they are applied to other patrons. Consequently, we are unable to determine that a direct threat exists when using roller skates in BART concourse areas.
4. BART has not demonstrated that use of roller skates as a mobility aid in BART controlled outside areas near stations creates a direct threat to the safety of others.
Notably, BART allows bike riders access to BART stations. Many stations have bike racks. BART has not indicated why a roller skate user could not access BART stations by the same means as bike riders. Where there are roadways for cars traveling at low speeds, there are no obvious safety risks to others that result from sharing the roads with a roller skate user traveling at similar speed and subject to similar restrictions.
Moreover, in pedestrian areas in and around BART stations, there is typically more space than in stations. Consequently, the areas outside of BART stations may be the safest places to roller skate. It seems that collision with another patron is least likely because a roller skate user can more easily maintain a significant distance from pedestrians. As with spills in concourse areas, cracks and uneven surfaces are hazards to all patrons, and BART should already mark and repair them for the safety of all patrons.
Admittedly, this is the hardest area to apply direct threat analysis because of the variety of situations and dangers that could be encountered. Accordingly, more careful analysis of specific areas may reveal the existence of direct threats that are particular to the location. Nonetheless, it remains BART’s burden to demonstrate that such specific risks exist.
The FTA Office of Civil rights has not found BART to be in violation of 49 CFR § 37.21(c) of the DOT ADA regulations in prohibiting roller skate users access to BART platforms or heavy rail vehicles. Accordingly, BART has no obligation to amend its current policies as they concern platforms and heavy rail vehicles.
We have concluded that BART must allow your use of roller skates in BART station concourses and in areas outside of BART stations pursuant to 49 CFR §§ 37.5 and 37.21(c) and 28 CFR § 35.130(b)(7). We will communicate our conclusion to BART and place BART in follow-up status as to these two issues. BART remains free to impose reasonable restrictions on roller skate access, however, such as for heavy rain days, stairs, and escalators. Any such restriction should be supported by specific fact-based analysis.
As the investigation phase of this process has been completed, we are closing your complaint as of the date of this letter. If you have any questions regarding our determinations, please contact Jonathan Klein, at 202-366-0809 at his electronic mail address: firstname.lastname@example.org. Thank you for bringing your concerns to our attention and for your patience as we deliberated and responded to your concerns.
David W. Knight
ADA Team Leader
Office of Civil Rights
Dorothy Dugger, BART General Manager
Susan Gallagher, BART Customer Access Department
Thomas C. Lee, BART Office of General Counsel
Shirley Nakao, BART Office of General Counsel
Len Hardy, BART Chief Safety Officer
Leslie Rogers, FTA Region IX Regional Administrator
Derrin Jourdan, FTA Region IX Civil Rights Officer