by Bill Knowles
TRINIDAD — Following a recent court ruling against an ADA law suit filed in 2014 by Stephen Hamer against the City of Trinidad, Hamer, on Dec. 20, filed an appeal to the 10th Circuit Court of Appeal concerning the decision by 10th Circuit Court Magistrate Judge Nina Wang.
Hamer’s case was based on the city’s widespread non-compliance of the sidewalks and curb cuts with ADA program access standard and the maintenance of accessible features standard. Judge Wang based her decision on the city’s statute of limitations defense even as she found that Hamer had standing.
According to a press release from Hamer’s attorney, even though the court acknowledged that the 7th and 9th circuits (along with a number of district courts) have applied the continuing violation theory in the ADA context, it expressly declined to align itself with those courts.
The continuing violation theory argues that even though a statute of limitations may have passed, each time that Hamer encountered a broken sidewalk or a bad curb cut he was injured and the statute of limitations began over again. “The clock has been reset,” said Andrew Bizer, Hamer’s attorney, during a phone interview with the World Journal.
However the court’s ruling stands for the proposition that the statute of limitations begins to run on injuries (present and future) and injunctive relief immediately upon encountering/discovering a discriminatory barrier or policy. We plan on appealing this ruling to the 10th Circuit.
“The ruling treats the program access provision of the ADA as a building code instead of an affirmative obligation to accommodate,” according to Hamer’s attorney.
Hamer filed the lawsuit 13 months ago in U.S. District Court in Denver, over two years after he discovered the violations. In the suit it was claimed that the inaccessibility of curbs and sidewalks violated federal laws that prohibit discrimination against the disabled.
Wang stated in the ruling that the clock for the statute of limitations began running no later than August 2014, when Hamer pointed out his concerns to Trinidad City Council. Because he filed his lawsuit more than two years after the complaint was made, Wang entered judgment in favor of the city.
In an email from Trinidad City Attorney Les Downs to Stephen Hamer, Downs notes that he won’t comment specifically on the litigation component brought out in a previous email from Hamer to the city concerning the filing of the appeal, “However, anyone can appeal any decision of any judge or magistrate at any time if it is a final decision.”
“As any one who visits our town for even a brief period of time can plainly see, the city is endeavoring mightily to bring this quaint, historical town into modernity in ways such as ADA compliance,” Downs wrote.
In a further note, this month the City Council of Trinidad approved the city’s ADA policy.
Still pending is a DOJ complaint Hamer filed in April 2014 against the city concerning nearly 300 violations of the Americans with Disabilities Act.