viewed in its entirety, is readily accessible to and usable by individual with disabilities. . . ." Id. at § 35.150(a).
Defendants note that the regulations on existing facilities do not "necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities . . . ." 28 C.F.R. § 35.150(a)(1). They argue that the emergency reporting system as a whole will be accessible to the deaf and hearing-impaired and that, therefore, the street alarm boxes need not be maintained or replaced with an accessible notification alternative. Yet even viewed in its entirety, and even defined as the reporting system as a whole, the service -- absent street alarm boxes or a notification alternative -- would no longer be readily accessible to Plaintiffs as meant by the Regulations.
Defendants also note that the regulations on existing facilities do not "require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." Id. at § 35.150(a)(3). Defendants assert that under this exception the Fire Department need not maintain its system, since it is outmoded and expensive. It is true that Defendants have demonstrated that the street alarm boxes are expensive to maintain and repair and that they force some diversion of emergency resources from areas where they could be of greater use. Nonetheless, Defendants have not demonstrated that this presents an undue financial or administrative burden. As Appendix A to the Regulations notes, the burden required by Section 150 is high: "Congress intended the 'undue burden' standard in title II to be significantly higher than the 'readily achievable' standard in title III. Thus, . . . the program access requirement of title II should enable individuals with disabilities to participate in and benefit from the services, program, or activities of public entities in all but the most unusual cases." Id. at Pt. 35, App. A. The fact that Plaintiffs have maintained the street alarm boxes for decades suggests that although the burden may be high, it does not rise to the level the Department of Justice contemplated as undue in promulgating the Regulations under the ADA.
Specific regulations have also been promulgated with regard to communications, requiring that "[a] public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." Id. at § 35.160(a). Clearly, removing the street alarm boxes without providing Plaintiffs with a means of reporting emergencies from the street would not constitute a means of communication as effective as that available to hearing people.
According to Defendants, these readings of the ADA statute and of Sections 130, 150, and 160 of the Regulations improperly read in a non-existent prohibition against the removal of accessible services without replacement. Removing the street alarm box system, they argue, does not require them to substitute a new, accessible system of reporting from the street, because not only the disabled will be affected by the boxes' removal. The ADA, they argue, was meant to apply to cases like Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994). There, individuals with disabilities and their representatives successfully sued West Palm Beach under the ADA for eliminating certain recreational programs for disabled individuals, while leaving intact those for others. The Court held that the elimination of the recreational programs would leave the plaintiff population virtually unserved, because the recreational programs meant for the general population failed to address the needs of the disabled. In contrast, according to Defendants, here the service being eliminated is not meant only for the hearing-impaired community. Everyone -- not just the deaf and hearing-impaired -- will lose access to street alarm boxes.
This position overlooks the fact that public telephones will remain accessible to the hearing, thus leaving them with a means of participating in and benefiting from reporting emergencies from the streets. Although street alarm boxes are accessible to the hearing, they are at present the only means by which the deaf and hearing-impaired can report emergencies from the street and, therefore, they stand in the place of the recreational programs for the disabled in Dreher Park. In other words, were Defendants proposing to eliminate fire services in their entirety, no claim would arise under the ADA. But for as long as a service, program, or activity remains in existence, as here, the ADA, requires that it be accessible to the disabled.
C. Section 162
Plaintiffs contend that Defendants have violated 28 C.F.R. § 35.162, one of the Regulations concerning communication, which states that "Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDD's and computer modems." Id. at § 35.162. Section 162, however, places its emphasis on a public entity's responsibilities at the receiving point of communications, not the sending point, addressing itself only to the public entity's responsibility to individuals already in possession of TDD's and modems. The regulations speak only of a public entity's obligation to provide the capacity to receive calls from TDD callers, not an obligation to provide TDDs to hearing-impaired callers at the sending end, whether originating from private or public telephones. Thus, removing the street alarm boxes without providing a notification alternative would not violate Section 162.
"Direct access" is defined in the Technical Assistance Manual, TAM § II-7.3100, as meaning that "emergency telephone services can directly receive calls from TDD's and computer modem users without relying on outside relay services or third party services." TAM § II-7.3100. Appendix A provides that:
Section 35.162 requires public entities to take appropriate steps, including equipping their emergency stems with modern technology, as may be necessary to promptly receive and respond to a call from TDD's and computer modems. Entities are allowed the flexibility to determine what is the appropriate technology for their particular needs.
28 C.F.R., Part 35, Appendix A (explanatory comment to § 35.162).
Defendants contend that Section 162, set against the absence of any other regulations specifically regarding emergency services, indicates that the Justice Department intended no further restrictions on a public entity's design of its emergency reporting systems. They note that the drafters of the regulations were specifically concerned with insuring that public emergency telephone services were equipped to receive TDD calls directly, and that they thus imposed these -- and only these -- specific requirements upon public entities providing emergency telephone services. To emphasize the specificity of the Regulations on emergency services, Defendants note that TAM II-7.3100 prohibits 911 systems from requiring TDD callers to identify themselves by pressing the TDD's space bar, thereby placing the burden of identifying TDD calls upon the 911 operator.
It is true that the Regulations and the interpreting materials are very detailed, but that does not establish that they were meant to be exhaustive. The regulation on telephone emergency services and the interpretations of that regulation refer to a specific concern: that reporting of emergencies by TDD users not be delayed by the need to relay information. Its inclusion cannot be read to preempt the application of the other regulations and the ADA statute to demand further requirements of telephone emergency services.
D. The Enhanced 911 System
Defendants contend that even if the ADA does require them to provide an accessible notification alternative before removing street alarm boxes, the Enhanced 911 system will accomplish that result. They note that, like the street alarm box system, E-911 will be able to send Police and Fire Department responses to silent calls, based upon automatic location information relayed by the systems' equipment. They contend that, like the street alarm box system, the E-911 system will permit hearing-impaired callers to indicate whether they are requesting police or fire assistance. Moreover, they note, the E-911 system will not automatically screen out silent calls, as the existing ERS street alarm box system does between the hours of 8:00 A.M. and 11:00 P.M.
Defendants are correct in asserting that E-911, if operative and effective as proposed, could meet the requirements of the ADA. To do so, it would have to provide the hearing-impaired with a means of identifying not only their location, but also the type of emergency being reported. The default response currently proposed -- sending a police car to all silent calls -- would cause needless delay in the case of a fire. A protocol similar to that currently used when calls are received from ERS boxes would provide a means of calling for fire assistance. It would serve to make public telephones serve a similar function to that currently served by the ERS and BARS boxes.
Several factors, however, suggest that the E-911 system does not at present provide an adequate notification alternative. First, the evidence to date has not established that E-911 is in place and effective. Moreover, assuming that the system has gone on-line as scheduled, there is no evidence that the system functions as projected to identify effectively the location of the telephone from which calls are reported.
Second, although Defendants alluded to a proposed protocol, no evidence has been offered that one has been effected. To comply with the ADA, Defendants would have to develop such a protocol and disseminate the fact of its existence to the deaf and hearing-impaired.
V. Defendants' Plan Would Violate the Rehabilitation Act
The Rehabilitation Act provides that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794. A program or activity includes instrumentalities of local government. Id. at § 794(1)(A).
Our Court of Appeals has held that to state a claim under the Rehabilitation Act, plaintiffs must establish that: (1) they are "handicapped persons" under the Rehabilitation Act; (2) they are "otherwise qualified" to participate in the offered activity or program or to enjoy the services or benefits offered; (3) they are being excluded from participation or enjoyment solely by reason of their disability; and (4) the entity denying plaintiffs participation or enjoyment receives federal financial assistance. See Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036 (S.D.N.Y. 1995). Only the third of these criteria is in dispute.
As discussed above in the context of the ADA, Plaintiffs would be excluded from participation in and denied the benefit of reporting fires from the street if street alarm boxes were removed and no notification alternative put in place. Also for the same reasons, Defendants' objections are unavailing. The Rehabilitation Act would be violated by removal of the street alarm boxes without provision of an accessible notification alternative.
VI. Defendants Have Not Violated the Equal Protection Clause or Section 1983
Plaintiffs contend that Defendants have violated their rights to equal protection under the law. "Most authorities have not considered disability to be a suspect or quasi-suspect classification" entitled to heightened scrutiny under an Equal Protection Analysis. Story v. Green, 978 F.2d 60, 64 (2d Cir. 1992) (equal protection claim asserted by disabled veterans). Thus, the Fire Department's de-activation plan need merely withstand a "rational basis" review. The plan survives such an analysis.
The Department has set forth numerous reasons for embarking upon de-activation of street alarm boxes. The system may soon be redundant of the 911 and E-911 systems. It is responsible for a disproportionate number of false alarms resulting in a diversion of essential equipment and personnel from fire-prevention duties and cardiac-arrest duties. The BARS boxes may soon be obsolete and, after in-house sources of parts are depleted, they will be incapable of repair. Labor and maintenance costs are at least somewhat burdensome.
For these reasons, Defendants have demonstrated a rational basis for removing the street alarm boxes, and they have not, therefore, violated Plaintiffs' rights to equal protection.
VII. Attorney's Fees Will Be Awarded
The ADA, 42 U.S.C. § 12205, the Rehabilitation Act, 29 U.S.C. § 794a(b), permit a court, in its discretion, to award attorney's fees to a prevailing party. Plaintiffs having prevailed here, they will be awarded attorney's fees.
For the reasons set forth above, a class is hereby certified consisting of persons who are deaf and hearing-impaired and who use a TDD to communicate via telephone and who reside, work, or are present in the City and use the sidewalks, streets, highways, or public places of the City.
For the reasons set forth above, and because a declaratory judgment will serve a useful purpose in clarifying the legal relations here in issue and will terminate and afford relief from uncertainty, a declaratory judgment is rendered that Defendants' removal of or deactivation of the emergency street alarm boxes and their replacement with notification alternatives inaccessible to the deaf would violate the ADA and the Rehabilitation Act. A second declaratory judgment is rendered that the current notification alternatives to the existing street alarm box system violate the ADA, because public telephones do not enable the deaf and hearing-impaired to request fire assistance directly from the street.
For the reasons set forth above, and because Plaintiffs have made demonstrated the potential for irreparable injury and have succeeded on the merits, Defendants, their employees, agents, and those acting on their behalf are enjoined from carrying out any shutdown, deactivation, removal, elimination, obstruction, or interference with the existing street alarm box system, and from acting to replace the existing accessible street alarm box system with notification alternatives which are not accessible to the deaf. Defendants may apply at any time to dissolve or modify the injunction by demonstrating that an accessible notification alternative exists. Among the means by which Defendants can meet this burden will be by demonstrating that E-911 is in operation and effective throughout the City and that a protocol has been developed providing the deaf and hearing-impaired with the ability to report a fire.
Because of the burden on Defendants of restoring the boxes that have been removed, because of the strong possibility that an accessible notification alternative will be developed soon, and because the pilot study begun by Defendants should be allowed to continue, Defendants will not be enjoined to reactivate those boxes which have been turned off as part of the first phase of the August Plan. If, within one year of judgment, Defendants have not successfully dissolved or modified the existing injunction by making the showing described above, a further application may be made.
Plaintiffs are awarded costs and reasonable attorney's fees.
Submit judgment on notice. It is so ordered.