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1 Kevin T. Snider, CA SBN 1709881 Michael J. Peffer, CA SBN 192265 2 Matthew B. McReynolds CA SBN 234797 APR 1 4 Z016 PACIFIC JUSTICE INSTITUTE 3 212 9th Street, Suite 208 CLERK OF THE COURT Oakland, CA 95827 BY: t}OWMAN LIU 4 Tel.: (510) 834-7232 Deputy Clerk Fax:(916)834-8784 5 E-mail: [email protected]
6 Conrad Reynoldson, WA SBN 481872 WASHINGTON CIVIL & DISABILITY ADVOCATE 7 4421 51 51 A venue N mtheast Seattle, WA 98105 8 Tel. : (206) 855-3134 9 E-mail: Comad,[email protected]
10 Attorneys for Plaintiffs 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SAN FRANCISCO
13 SAN FRANCISCO CHINESE CHRISTIAN Case No. CGC · 16-551486 14 UNION, RICHARD LAM, PEGGY LAM, PATRICK SULLIVAN, SYLVIA 15 COMPLAINT FOR DECLARATORY AND TERPSTRA, INJUNCTIVE RELIEF 16 Plaintiffs, [CCP §526a] 17 vs. 18 CITY AND COUNTY OF SAN FRANCISCO, 19 PIDLIP ALAN GINSBURG, GENERAL 20 MANAGER, RECREATION AND PARKS DEPARTMENT, in his official capacity, 21 Defendants. 22
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27 1 Counsel of record and for service. 28 2 Application for pro hac vice pending. -1-
Complaint ..
COMES NOW PLAINTIFFS who allege as follows: 2
3 Introduction
4 The City and County of San Francisco has installed a three-inch hole in the center of a three-
5 foot diameter concrete base for public urination. This hole is called a pissoir. It is located at the
6 southwest quadrant of Mission Dolores Park at a busy street corner, between a sidewalk and a train
7 stop. Persons urinate into the hole in public view. There is no signage, accessibility for persons with
8 disabilities, and no place to wash hands. This complaint is brought as a taxpayer action for equitable
9 relief to prevent the continued illegal and wasteful expenditure of public funds to install and maintain
10 the pissoir. The basis for the requested relief is that the pissoir violates the Jaw and public policy
1 1 regarding privacy, sex discrimination, public health, access for persons with disabilities, and the
12 Plumbing Code. Because the City Attorney and Attorney General have failed to bring an action to
13 halt the pissoir as a public nuisance, the Plaintiffs bring this Complaint.
14 Parties
15 1. Plaintiff, San Francisco Chinese Christian Union is a religious nonprofit corporation 16
17 incorporated in the State of California and doing business in the City and County of San Francisco,
18 California. Its members include fifteen churches within the City and County of San Francisco. These
19 represent persons, both male and female, which include residents and citizens of the City and County of 20 San Francisco who have paid a tax to the City and County of San Francisco. They use Dolores Park, 21 ride the San Francisco Municipal Transit Authority (SFMTA) in which they board and alight the train 22 at the stop at the corner of 20th and Church Street. Further, some of their members are wheelchair 23 bound or take care of a child or parent who uses a wheelchair. The San Francisco Chinese Christian 24
25 Union has served the residents of San Francisco since 1916. Additionally, the purpose statement of the
26 San Francisco Chinese Christian Union's bylaws state: "The purpose of this organization is to promote
27 Christian fellowship among the churches and to work cooperatively in projects directed toward the 28 community and in projects related to the spreading of the Christian Gospel." The mission and goal of -2-
Complaint . '
the members includes caring for the sick and infirm within the community. To that end, the San
Francisco Chinese Christian Union was one of fifteen organizations which raised funds to build the 2 3 3 Chinese Hospital in 1923 and which was erected in 1925. Since its inceptions, a representative from
4 the San Francisco Chinese Christian Union has sat on the board of the Chinese Hospital. The San
5 Francisco Chinese Christian Union has an interest in the care of the sick, including those with 6 disabilities. Moreover, the San Francisco Chinese Cluistian Union has associational standing to bring a 7 taxpayer suit. 8 2. Richard Lam is a resident and citizen of the City and County of San Francisco, 9 California, who owns real prope1iy within that jurisdiction and has, within one year of the filing of this 10
11 Complaint, has been accessed for and liable to pay a tax - including, but not limited to, property taxes -
12 to, and for the benefit and support of, the City and County of San Francisco. Mr. Lam uses Dolores
13 Park, at times riding the train there. 14 3. Peggy Lam is a resident and citizen of the City and County of San Francisco, California, 15 who owns real prope1iy within that jurisdiction and has, within one year of the filing of this Complaint, 16 has been accessed for and liable to pay a tax - including, but not limited to, property taxes - to, and for 17 the benefit and support of, the City and County of San Francisco. Mrs. Lam uses Dolores Park, at 18
19 times riding the train there.
20 4. Patrick Sullivan is a resident and citizen of the City and County of San Francisco,
21 California who has, within one year of the filing of this Complaint, been accessed for and liable to pay 22 a tax - including, but not limited to, property taxes - to, and for the benefit and supp01i of, the City and 23 County of San Francisco. Mr. Sullivan lives across the street from Dolores Park and has a clear view 24 of persons using the pissoir from his kitchen window. He is informed and believes and thereon alleges 25 that the presence of the pissoir negatively impacts the value of his home. 26
27 3 28 The Tung Wah Dispensary (est. 1899) was destroyed in the 1906 earthquake. The Chinese Hospital was established in 1923 to replace the Dispensary. -3-
Complaint 5. 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 2
3 Complaint, has been accessed for and liable to pay a tax - including, but not limited to, property taxes -
4 to, and for the benefit and support of, the City and County of San Francisco. She uses Dolores Park,
5 at times riding the train there. 6 6. Defendant, City and County of San Francisco, is an entity established pursuant to A1iicle 7 XI, §6, of the California Constitution. The City and County of San Francisco has jurisdictional control 8 over the Recreation and Parks Department, including Mission Dolores Park, the sidewalks surrounding 9 Mission Dolores Park, and the San Francisco Municipal Transportation Agency which has a stop at the 10
11 corner of 20th and Church Street. The City and County of San Francisco lays and collects taxes for the
12 support of its activities within its jurisdiction. The City and County of San Francisco has authority
13 over the installation and maintenance of the pissoir. Moreover, the City and County of San Francisco 14 has authorized the expenditure of funds for the installation and maintenance of the pissoir. 15 7. Defendant, Philip Alan Ginsburg, serves as the General Manager of the Recreation and 16 Parks Depaiiment for the City and County of San Francisco. Mr. Ginsburg has operational oversight of 17 parks within San Francisco, including Mission Dolores Park. The Plaintiffs are informed and believe 18
19 and thereon allege that at all times herein mentioned, Mr. Ginsburg was in office and had control and
20 oversight over the installation of the pissoir. The Plaintiffs are further informed and believe and
21 thereon allege that at all times herein mentioned, Mr. Ginsburg currently has control and oversight over 22 the maintenance of the pissoir. He is named in his official capacity. 23
24 Venue
25 8. Venue in the Superior Court in and for the County of San Francisco is proper because 26 both the real property (Mission Dolores Park, the sidewalks sunounding the park, and the train stop) 27 28 and the res (pissoir), which is the subject of this dispute, are located in the City and County of San -4-
Complaint Francisco, California. Moreover, all actions described herein occurred within the City and County of
San Francisco. Further, the Plaintiffs reside and conduct business within the City and County of San 2
3 Francisco. The Defendant conducts business within the City and County of San Francisco and
4 Plaintiffs are informed and believe and thereon allege that the Defendant also resides there in the City
5 and County of San Francisco, as well. 6 Facts 7 9. Mission Dolores Park is a 16.1 acre city park in San Francisco, California, located at 8 the eastern edge of the Castro/Upper Market neighborhood, bounded by 18th Street to the north, 9 Dolores Street to the east, 20th Street to the south, and Church Street to the west. The majority of 10
11 Mission Dolores Park consists of open space, totaling approximately 11. 9 acres, including a
12 playground, two dog play areas, multi-use field, and other grassy and landscaped areas. Open between
13 6 a.m. and 10 p.m., Mission Dolores Park is primarily used for active and passive recreation, as well as 14 various public events, including concerts, outdoor movie nights, performances, political rallies, and 15 other events. 16 10. The Mission Dolores Park Rehabilitation Project ("Project") was financed by the 2008 17 Clean and Safe Neighborhood Parks $153 million general obligation bond approved by San Francisco 18
19 Voters n 2008. Id. at 1. The project sponsor, the San Francisco Recreation and Park Department used a
20 portion of the $13.2 million for the Mission Dolores Park rehabilitation.
21 11. Plaintiffs are informed and believe and thereon allege that two new restrooms were 22 included for a total of 34 fixtures (toilets). Mission Dolores Park maintenance staff is able to increase 23 or decrease the number of fixtures available to the public by opening locked interior sliding partition 24 type doors in the new restroom buildings. Tempora1y portable toilets are added for large events 25 26 (greater than 5,000 people). Seasonal portable toilets are near the entry plaza.
27 12. The project also included apissoir (also known as a pPod) in the park's southwestern
28 quadrant, by the entry plaza and next to the Muni tracks. -5-
Complaint 13. The pissoir has a semi-circle screen constructed of wire fencing. Underneath the wire 1 fencing is a mesh-type material that is transparent in nature. Plaintiffs are informed and believe and 2
3 thereon allege that the material is a vinyl mesh coated polyester or perhaps polypropylene. Behind that
4 there is a white material, the composition of which is unknown to Plaintiffs, with black lettering printed
5 on it. The lettering reads: "How would you design this playground? Call (415) 895-9381" Other than
6 that, the pissoir has no signage at all. This includes no signage that the hole is a place for urination. 7 Further, there is no signage that the pissoir is for male, female or unisex use. Finally, there is no 8 signage regarding disability access or pointing persons with disabilities to restroom facilities that 9 accommodate persons with disabilities. The slopes of the ramps leading to and from the pissoir are 10
11 steep and dangerous to persons with disabilities. The ramp running parallel to Church Street towards
12 18th Street has slopes has steep as 1 :2 and completely lacks handrails in some parts. The ramp towards
13 20th Street has slopes as steep as 1:6. 14 14. The pissoir has a 46" diameter concrete base - 36" at the entrance -and a drain with a 15 fine mess grate to catch urine but block solids. The drain includes a one way valve. The mouth of the 16 drain is five inches in circumference and the hole going to the sewer is tlu-ee inches in circumference. 17 Plaintiffs are informed and believe and thereon allege that the pissoir is designed to accommodate one 18
19 user at a time. However, on accession, more than one person at a time urinates in it. A user can enter
20 the pissoir from the north-south internal pathway and face the interior of the park. Views of the pissoir
21 user from the interior of Mission Dolores Park are not completely blocked by a screen, which faces the 22 Muni tracks. Views of the pissoir from the perimeter of the Park and public right-of-way near Church 23 Street and 20th Street are not hidden. 24 15. The pissoir is not compliant with plumbing codes. 25
26 16. The pissoir emanates odors which are offensive to the senses.
27 17. The pissoir has no soap, running water, or other amenities for washing hands. Persons
28 urinating in the hole leave the pissoir with unwashed hands and either continue on their way on the -6-
Complaint public sidewalks into the community or they board the Muni train which stops five to ten yards from
the hole. These unsanitary conditions result in the spread of germs and disease. 2
3 18. Allowing public urination at the pissoir is injurious to health. The safety and health of
4 the public at large is endangered by the improper disposal of human waste in a public place.
5 19. Allowing public urination at the pissoir is indecent, and offensive to the senses.
6 Facilitating public urination is indecent because it is grossly unseemly or offensive to manners and 7 morals. 8 20. Allowing public urination at the pissoir is offensive to the senses. Urine is nauseating 9 and offensive when excreted in public places. Public urination is offensive to the sense of sight and 10
11 smell.
12 21. The pissoir is not compliant with laws requiring access to persons with disabilities -
13 pmticularly those whose mobility depends on a wheelchair. 14 22. The individually named Plaintiffs include those who will not use the pissoir because 15 such would violate their privacy by exposing them to public shame and embarrassment. These include 16 both males and females. The organizational Plaintiff - San Francisco Chinese Christian Union - 17 represents both males and females who will not use the pissoir for the same reason. Fmther, 18
19 unexpectedly being exposed to someone's private parts also violates Plaintiffs' privacy.
20 23. In the alternative, if the pissoir has been installed exclusively for males, then the female
21 Plaintiffs, including those represented by the San Francisco Chinese Christian Union, have been denied 22 equal access to toilet facilities. (Note that there is no signage indicated whether the hole is for male, 23 female, or unisex). 24 24. The San Francisco Chinese Christian Union represents persons whom are disabled or 25 26 take care of a disabled parent of child. Because of its construction, persons with disabilities are unable 27 to use the pissoir. Further, there is no signage directing persons with disabilities to facilities for which
28 they would have access. -7-
Complaint 25. 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 2
3 its jurisdiction.
4 FIRST CAUSE OF ACTION Violation Of Privacy 5
6 26. The open-air urination hole violates the privacy of those who need to use the restroom
7 but would be required to expose their bodies and suffer the shame and degradation of urinating in 8 public view. Seclusion in bodily evacuation is a societal norm and constitutes one of the most basic 9 expectations for privacy. Privacy is a fundamental right enumerated in the California Constitution. CA 10 Const., Art. I, § 1 as well as the penumbra of rights in the U.S. Constitution. 11
12 27. The hole provided for open-air urination is particularly egregious for women and girls.
13 Because of the unique way in which females urinate, when there is no standard toilet for which they can
14 sit, they must lift their skirts or pull down their pants and undergarments and squat over the hole. This
15 exposes the entire lower part of their bodies to public view. Women and girls would be subject to 16 extreme emba1rnssment in a measure not experienced by men or boys who merely unzip their trousers 17 and aim at the whole when urinating. Indeed, whether a female faces the fence towards the train stop, 18 turns her back to the fence, or squats sideways, she will be exposing much of her body to the public. 19
20 28. Not only are the privacy rights of those having to publically relieve themselves in the
21 sewer hole abridged, but the privacy rights of individuals who happen to come upon the one urinating is
22 also violated. San Francisco's Board of Supervisors has recognized and further articulated the self- 23 evident proposition that privacy is invaded when a member of the public is "unwillingly or 24 unexpectedly exposed" to "a person's private paiis." S.F. Police Code§ 154(a). The euphemism 25 "private pmis" is laid bare in subsection b which reads in full, as follows: "A person may not expose 26 his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, 27
28 plaza, or public right-of-way as defined in Section 2.4.4(t) of the Public Works Code, or in any transit -8-
Complaint vehicle, station, platform, or stop of any government operated transit system in the City and County of
San Francisco." (Emphasis added). 2
3 29. Urinating in the pissuir at the present location is an act facially in contravention to the
4 text of the above-quoted law.
5 30. S.F. Police Code §154(a) is entirely consistent with section 4.01 of the San Francisco 6 Park Code which likewise prohibits exposure of the intimate patts of the body, i.e., "genitals, pubic 7 hair, perineum, anal region or pubic hair region." Section 4.0l(h). 8 31. Because the act of public urination causes innocent members of the community to 9 unwillingly and unexpectedly be exposed to intimate parts of a stranger's body, the open-airpissair 10
11 necessarily intrudes upon privacy.
12 32. Tax dollars have been, and are being spent, by the City and County of San Francisco,
13 and at the direction of the Recreation and Parks General Manager on the above-described activities 14 which violate the privacy rights of Plaintiffs, their members, and the residents of San Francisco. 15 33. Defendants have utilized employees of the City and County of San Francisco, including 16 the Recreation and Parks Department, in canying out the installation and continued maintenance of the 17 pissoir. Such is against public policy and in violation of Plaintiffs' rights. 18
19 34. The expenditure of taxpayer funds for the acts described above is an illegal expenditure
20 of, waste of, or injmy to the estate, funds, or other property of the City and County of San Francisco.
21 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the 22 illegal expenditme of, waste of, or injmy to, the estate, funds, or other property of the City and County 23 of San Francisco. 24 35. Absent relief from this Court, Defendants will continue to engage in conduct in 25
26 contravention to the rights of privacy, and by extension, public policy, as found in the U.S. and
27 California Constitutions as well as local codes.
28 36. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers -9-
Complaint pursuant to CCP §526a. 1 37. In addition, there is a disagreement between the parties as to whether open-air pissoirs 2
3 violate privacy rights and are against public policy. Defendants believe that use of open-air pissoirs 4 which entail urination in public view, does not violate either privacy rights or public policy relative to
5 pnvacy. Plaintiffs disagree. 6 38. Plaintiffs are informed and believe and thereon allege that Defendants will fmiher spend 7 tax dollars on the installment and maintenance of otherpissoirs within the jurisdiction of the City and 8 County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to 9 maintain the pissoir. 10
11 39. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
12 SECOND CAUSE OF ACTION Unlawful Sex-Based Discrimination 13
14 40. The pissoir is particularly onerous to the privacy rights of women seeking to use the 15 restroom. 16 41. Plaintiffs are informed and believe and thereon allege that the pissoir has been installed 17 for the exclusive use of males. Such violates State law and public policy requiring equal facilities for 18 both sexes. Health & Safety Code §§ 118500 and 118505 requires that every public agency that 19
20 conducts an establislunent serving the public or open to the public and that maintains therein restroom
21 facilities must have them available for each sex. These facilities must be in conformity with the State
22 Plumbing Code. Under the Code, "[s]eparate toilet facilities shall be provided for each sex." 24 CCR 23 412.3. The exception under the regulations is that facilities that are for single use must be permitted for 24 both sexes. 25 42. In light of these provisions, if the place for open-air urination is only for men, such 26 27 unlawfully discriminates against women. Defendants have no narrowly tailored compelling interest,
28 which uses the least restrictive means, for installing a facility for urination exclusively for males. -10-
Complaint 43. Tax dollars have been, and are bei ng 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 2 which violate rights to equal protection for Plaintiffs, their members, and the residents of San 3
4 Francisco.
5 44. Defendants have utilized employees of the City and County of San Francisco, including
6 the Recreation and Parks Department in carrying out the installation and continued maintenance of the 7 pissoir in violation of Plaintiffs' rights and against public policy. 8 45. The expenditure of taxpayer funds for the acts described above is an illegal expenditure 9 of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 10
11 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
12 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County
13 of San Francisco. 14 46. Absent relief from this Court, Defendants will continue to engage in conduct in 15 contravention to the rights of equal protection, and by extension, public policy, as found in the U.S. and 16 California Constitutions as well as local codes. 17 47. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers 18
19 pursuant to CCP §526a.
20 48. In addition, there is a disagreement between the parties as to whether open-airpissoirs
21 discriminate against women and girls and are against public policy. Defendants believe that use of 22 open-air pissoirs which entail urination in public view is not discriminatory as to females or against 23 public policy. Plaintiffs disagree. 24 49. Plaintiffs are informed and believe and thereon allege that Defendants will further spend 25 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and 26
27 County of San Francisco. Absent declaratory relief from this Comt, Defendants will continue to
28 maintain the pissoir. -11-
Complaint 50. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers. 1 2 THIRD CAUSE OF ACTION 3 Violation Of Public Policy - Health & Hygiene 4
5 51. The open-air place for urination has no sink with running water and soap. Providing a
6 place to wash hands after use of the restroom is a common sanitation standard used in all fifty states.
7 The open-air urinal is at a heavily trafficked train stop of the SFMTA. A person urinating in the hole 8 can walk a few yards and board a train with unwashed hands. Such subjects the community to germs 9 and disease. 10 52. Ce1iain San Francisco officials attempt to justify the open-air urination hole above the 11 sewer by pointing to other countries that have different - and indeed, lower - expectations for hygiene 12 13 than the United States. The trajectory for American society is to take reasonable steps to increase
14 sanitation and cleanliness. Indeed, in California, instruction on the impottance of hand washing is part
15 of school curriculum. Health Education Standards for California Public Schools: Kindergarten 16 Through Grade Twelve, Standards 1.1.P and 7 .2.P. Moreover, the concept of hand washing - 17 including after use of the restroom - is routinely taught in preschool in this country. For most homes, 18 children are taught basic sanitation by their parents before they are old enough to enter such schools. 19 53. 20 Put simply, the open hole place for urination is inconsistent with public health policy in 21 relation to hygiene.
22 54. Tax dollars have been, and are being spent, by the City and County of San Francisco,
23 and at the direction of the Recreation and Parks General Manager on the above-described activities 24 which are against public policy relative to health and hygiene. 25 55. Defendants have utilized employees of the City and County of San Francisco, including 26 the Recreation and Parks Department, in can-ying out the installation and continued maintenance of the 27
28 pissoir. Such is against public policy. -12-
Complaint 56. The expenditure of taxpayer funds for the acts described above is an illegal expenditure
of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 2
3 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
4 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County
5 of San Francisco. 6 57. Absent relief from this Court, Defendants will continue to engage in conduct in 7 contravention to public health policy. 8 58. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers 9 pursuant to CCP §526a. JO
11 59. In addition, there is a disagreement between the parties as to whether open-air p;ssoirs
12 are against public policy relative to health and hygiene. Defendants believe that use of open-air
13 pissoirs which entail public urination without amenities for washing hands is not against public policy 14 related to health and hygiene. Plaintiffs disagree. 15 60. Plaintiffs are informed and believe and thereon allege that Defendants will further spend 16 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and 17 County of San Francisco. Absent declaratory relief from this Court, Defendants wi ll continue to 18
19 maintain the pissoir.
20 61. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.
21 FOURTH CAUSE OF ACTION 22 Violation Of Public Policy - Title II of the Americans with Disabilities Act of 1990 42 U.S.C. § 12101 et seq. 23
24 62. Title II of the ADA provides in pe11inent pal1: "[N]o qualified individual with a
25 disability shall, by reason of such disability, be excluded from participation in or be denied the benefits 26 of the services, programs, or activities of a public entity, or be subjected to discrimination by any such 27 entity." 42 U.S.C. § 12132. 28 -13-
Complaint ..
63. 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 2 provides a pedestrian right of way program, service, or activity to the general public. 3
4 64. Defendants are mandated to operate each service, program, or activity "so that, when
5 viewed in its entirety, it is readily accessible to and useable by individuals with disabilities." 28 C.F.R. §
6 35.150; see also 28 C.F.R. § 35.149. This requirement applies to all programs, services, and activities that 7 a public entity offers, whether or not they are carried out in facilities that have been constructed or altered 8 since January 26, 1992. The pissoir was installed after 1992. 9 65. The regulations implementing Title II of the ADA provide that a public entity must 10 11 maintain the features of all facilities required to be accessible by the ADA. 28 C.F.R. § 35.133.
12 66. Defendants have constructed, altered, or repaired parts of these facilities within the
13 meaning of the ADAAG and the UFAS, and that Defendants, through its administrative methods, 14 policies, and practices, have failed to make the Dolores Parkpissoir readily accessible to and usable by 15 persons with disabilities as required under federal accessibility standards and guidelines. 16 67. Since March 15, 2012, Defendants have constructed, altered, or repaired pa1ts of these 17 facilities within the meaning of the ADAAG and the UFAS, and that Defendants, through their 18
19 administrative methods, policies, and practices, have failed to make such facilities compliant with the
20 ADAAG and the UFAS as updated in 2010, as required under 28 C.F.R. § 35.15l(c)(5).
21 68. The 2010 ADA Standards for Accessible Design (2010 Standards) specify the 22 requirements for compliance under the above. 23 69. Section 605 .2 of the 2010 Standards specifies that, "Urinals shall be the stall-type or the 24 wall-hung type with the rim 17 inches (430 mm) maximum above the finish floor or ground. Urinals shall 25 be 13 1/2 inches (345 mm) deep minimum measured from the outer face of the urinal rim to the back of 26
27 the fixture."
28 70. Per section 405.2 of the 2010 Standards, "Ramp runs shall have a running slope not steeper -14-
Complaint , .
than 1: 12." It should be noted that "In existing sites, buildings, and facilities, ramps shall be permitted to
have running slopes steeper than 1: 12 complying with Table 405.2 where such slopes are necessary due to 2 space limitations." Id. However a slope greater than 1:8 is not permitted even under this potential 3
4 exception. Id.
5 71. Under section 405.8 of the 2010 Standards, "Ramp runs with a rise greater than 6 inches
6 (150 mm) shall have handrails complying with 505." 7 72. Additionally, per section 505.3 of the 2010 Standards, "Handrails shall be continuous 8 within the full length of each stair flight or ramp run. Inside handrails on switchback or dogleg stairs and 9 ramps shall be continuous between fli ghts or rnns." 10
11 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 74. Defendants and their agents and employees have violated and continue to violate Title II of 15 the ADA by failing to timely respond to and remedy complaints regarding the lack of accessibility of the 16 Mission Dolores Park pissoir. 17 75. Tax dollars have been, and are being spent, by the City and County of San Francisco, 18 19 and at the direction of the Recreation and Parks General Manager on the above-described activities
20 which violate public policy to access of restroom facilities for the disabled.
21 76. Defendants have utilized employees of the City and County of San Francisco, including 22 the Recreation and Parks Department, in carrying out the installation and continued maintenance of the 23 pissoir. Such is against public policy and in violation of Plaintiffs' rights. 24 77. The expenditure of taxpayer funds for the acts described above is an illegal expenditure 25 of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 26 27 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the
28 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County -15-
Complaint of San Francisco. 1 78. Absent relief from this Court, Defendants will continue to engage in conduct in 2
3 contravention to access for citizens with disabilities to restroom facilities.
4 79. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers
5 pursuant to CCP §526a. 6 80. In addition, there is a disagreement between the parties as to whether open-air pissoirs 7 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 persons with disabilities. Plaintiffs disagree. 10
11 81. Plaintiffs are informed and believe and thereon allege that Defendants will fmther spend
12 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and
13 County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to 14 maintain the pissoir. 15 82. As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers. 16 FIFTH CAUSE OF ACTION 17 Violation Of Public Policy - Section 504 of the Rehabilitation Act of 1973 18 29 U.S.C. § 794 et seq.
19 83. Section 504 of the Rehabilitation Act of 1973 provides in pe11inent pait: " [N]o otherwise 20 qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the 21 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 84. Plaintiffs are otherwise qualified to participate in the services, programs, or activities that 25 are provided by the Recreation and Parks Department of the city and County of San Francisco at 26 Dolores Park. See 29 U.S.C. § 794(b). 27 85 . The Recreation and Parks Depaitment of the City and County of San Francisco is a 28 -16-
Complaint . .
direct recipient of federal financial assistance sufficient to invoke the coverage of Section 504, and has 1 received such federal financial assistance at all times relevant to the claims asserted in this Complaint. 2 Defendants and their agents and employees have violated and continue to violate the 3 86.
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 87. As a direct and proximate result of the aforementioned acts, disabled citizens of San 10
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 Plaintiffs the full, equal, and meaningful access to the pissoir that Section 504 requires. 15 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 89. Tax dollars have been, and are being spent, by the City and County of San Francisco, 18 19 and at the direction of the Recreation and Parks General Manager on the above-described activities
20 which violate the rights of residents of San Francisco with disabilities.
21 90. Defendants have utilized employees of the City and County of San Francisco, including 22 the Recreation and Parks Department, in canying out the installation and continued maintenance of the 23 pissoir. Such is against public policy. 24 91. The expenditure of taxpayer funds for the acts described above is an illegal expenditure 25 of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 26 27 Thus, Plaintiffs bring this action under CCP §526a to obtain a judgment to restrain and prevent the
28 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County -1 7-
Complaint of San Francisco. 1 92. Plaintiffs are informed and believe and thereon allege that Defendants will further spend 2
3 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and
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 93. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers 7 pursuant to CCP §526a. 8 94. In addition, there is a disagreement between the parties as to whether open-air pissoirs 9 violate disability rights and are against public policy to provide access to restroom facilities for persons 10
11 with disabilities. Defendants believe that pissoirs are consistent with access to restroom facilities for
12 persons with disabilities. Plaintiffs disagree.
13 95. As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers. 14 SIXTH CAUSE OF ACTION 15 Violation Of Public Policy - Unruh Civil Rights Act
16 96. Defendants operates Mission Dolores Park within the jurisdiction of the State of 17 California and, as such, is obligated to comply with the provisions of the Unruh Act, Cal. Civ. Code, § 18 51, et seq. (" the Unruh Act"). 19 20 97. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code, § 51, et
2 1 seq.
22 98. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to full and 23 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 that a violation of the ADA is a violation of the Unruh Act. 26
27 99. Defendants have violated the Unruh Act by, inter alia, denying persons with disabilities,
28 full and equal accommodations, advantages, facilities, privileges, or services offered by Defendants.
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Complaint Defendants have also violated the Unruh Act by violating the ADA, as set fotth above.
100. Defendants have violated the Unruh Act by, inter alia, failing to operate its services on a 2
3 nondiscriminatory basis and failing to ensure that persons with disabilities have nondiscriminatory
4 access to the Mission Dolores Park pissoir.
5 101. In doing the acts and/or omissions alleged herein, Defendants wrongfully and unlawfully
6 denied access to its facility to persons with disabilities and acted with knowledge of the effect its 7 conduct was having on persons with physical disabilities. 8 I 02. Tax dollars have been, and are being spent, by the City and County of San Francisco, 9 and at the direction of the Recreation and Parks General Manager on the above-described activities 10
11 which violate the disability rights of Plaintiffs, their members, and the residents of San Francisco.
12 103. Defendants have utilized employees of the City and County of San Francisco, including
13 the Recreation and Parks Department, in carrying out the installation and continued maintenance of the 14 pissoir. Such is against public policy and in violation of Plaintiffs' rights. 15 104. The expenditure of taxpayer funds for the acts described above is an illegal expenditure 16 of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 17 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the 18
19 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County
20 of San Francisco.
21 I 05 . Plaintiffs are informed and believe and thereon allege that Defendants will fmther spend 22 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and 23 County of San Francisco. Absent relief from this Court, Defendants will continue to engage in conduct 24 in contravention to access for citizens with disabilities to restroom facilities. 25
26 106. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers
27 pursuant to CCP §526a.
28 107. In addition, there is a disagreement between the parties as to whether open-air pissoirs -19-
Complaint violate disability rights and are against public policy to provide access to restroom facilities for persons 1 with disabilities. Defendants believe that pissoirs are consistent with access to restroom facilities for 2
3 persons with disabilities. Plaintiffs disagree.
4 SEVENTH CAUSE OF ACTION Violation Of Public Policy - Construction Noncompliant With Plumbing Code 5
6 108. A public restroom must meet all California codes and fixture requirements. The pissoir 7 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 Code. IO
11 109. 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 the Recreation and Parks Department, in carrying out the installation and continued maintenance of the 16 pissoir. 17 111. The expenditure of taxpayer funds for the installation and maintenance of restroom 18
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 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the 22 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County 23 of San Francisco. 24 112. Plaintiffs are informed and believe and thereon allege that Defendants will further spend 25
26 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and 27 County of San Francisco. Absent relief from this Court, Defendants will continue to engage in conduct
28 in contravention to plumbing codes. -20-
Complaint 113. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers
pursuant to CCP §526a. 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. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers. 8 EIGTH CAUSE OF ACTION 9 Violation Of Public Policy- Enabling Of Public Nuisance 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 of hands - is injurious to health. 14 118. Enabling public urination at the pissoir promotes conduct which is indecent. 15 119. Enabling public urination at the pissoir is offensive to the senses. 16 120. Tax dollars have been, and are being spent, by the City and County of San Francisco, 17 and at the direction of the Recreation and Parks General Manager on the above-described activities 18
19 which create the conditions for a public nuisance.
20 121. Defendants have utilized employees of the City and County of San Francisco, including
21 the Recreation and Parks Department, in carrying out the installation and continued maintenance of the 22 pissoir. Such is against public policy. 23 122. The expenditure of taxpayer funds for the acts described above is an illegal expenditure 24 of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco. 25
26 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the 27 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and County
28 of San Francisco. -21-
Complain! ' .
123. 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. 2 3 124. Plaintiffs make this request for injunctive relief based upon their standing as taxpayers
4 pursuant to CCP §526a.
5 125. Plaintiffs are informed and believe and thereon allege that Defendants will further spend
6 tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City and 7 County of San Francisco. Absent declaratory relief from this Court, Defendants wi ll continue to 8 maintain the pissoir. 9 126. In addition, there is a disagreement between the parties as to whether open-air pissoirs 10 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. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers. 15 PRAYER 16
17 WHEREFORE, Plaintiffs prays fo r reliefs as follows: 18 a. An order, pursuant to CCP §526a, enjoining the continued unlawful and wasteful 19 expenditure of tax dollars on maintaining, and holding open for use to the public, the 20 pissoir; 21 b. An order, pursuant to CCP §526a, enjoining future installations and maintenance of 22 pissoirs within the jurisdiction of the City and County of San Francisco; 23 c. An order, pursuant to CCP §526a, declaring that the pissoir violates privacy; 24 d. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the 25 pissoir constitutes unlawful sex-based discrimination; 26 e. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the 27 pissoir violates public policy related to public health and hygiene; 28 -22-
Complaint ..
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
3 Disability Laws; g. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the 4 pissoir violates public policy related to the requirement that construction of restroom 5 facilities comply with the Plumbing Code; 6 h. An order, pursuant to CCP §526a, declaring that the installation and maintenance of the 7 pissoir violates public policy by creating a public nuisance; 8 1. Attorneys fees pursuant to CCP §1021.5 or any other applicable law; 9
10 j . Costs; k. Such other and fmther relief as the court deems just and proper. 11
12 Dated: April 12, 2016
13
14 Kevin T. Snider, Attorney for Plaintiffs PACIFIC JUSTICE INSTITUTE 15 P.O. Box 276600 Sacramento, CA 95827 16 Tel.: (916) 857-6900 Fax: (916) 857-6902 17 E-mail: [email protected]
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Complaint CM-010 ATTO RNEY OR PARTY 'MHIOUT ATI OR NEY (Nome, State Bar numbor, and a FOR COURT USE ONLY SUMMONS (SOLO PARA USO DE LA CORTE) (CITACION JUDICIAL) NOTICE TO DEFENDANT: _,. (AV/SO AL DEMANDADO): C' ~ ,, City and County of San Francisco, Philip Alan Ginsburg, General ~ ~ f1'\ Manager, Recreation and Parks Department, in his official capacity ;;Q O (") ~ rn YOU ARE BEING SUED BY PLAINTIFF: -~ (/l- (LO ESTA DEMANDANDO EL DEMANDANTE): o ..c:: ~ ~ f"\ San Francisco Chinese Christian Union, Richard Lam, Peggy Lam, 0 0 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 DATE:jApril 2016 l ~~PUTY C' ~K Clerk, by P.t"\\~t\,1AN llf , Deputy (Fecha Uc u:n (Secretario) (Adjunto) (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. D as an individual defendant. 2. c::::J as the person sued under the fictitious name of (specify): 3. D on behalf of (specify): under: D CCP 416.10 (corporation) D CCP 416.60 (minor) D CCP 416.20 (defunct corporation) D CCP 416. 70 ( conservatee) D CCP 416.40 (association or partnership) D CCP 416.90 (authorized person) D other (specify}: 4. D by personal delivery on (date): Pa o 1 of1 Form Adopted for Mandatory Use SUMMONS Codo of Civil Procedure§§ 412.20, 465 Judicial Council of California WW\v.courtinfo.ca.gov SUM-100 IRev. July 1, 2009]