Snow, the ADA, and Handicap Parking

Every year Colorado receives a couple of large snow storms.  Sometimes there is so much snow problems are caused trying to clear it.  This year, at least in Boulder, Colorado it created at least one potential violation of the Americans with Disabilities Act (ADA).

For example, recently a local Denver news station televised a story about fire hydrants covered by the snow and the public safety implications.  Because in order to fight fires, firefighters must: 1. find the fire hydrants (which are buried by the snow) and 2. dig them out, all before they are able to be used.  Both steps take valuable time in fighting fires.

However, the snow does not only create problems for firefighters.  It can create problems for the disabled, too.  Specifically, it appears handicap parking spaces, are at least at times, used as a dumping grounds for snow, leaving the disabled without designated parking spots.  All the while, potentially violating the ADA.

Snow Plowed into Handicap Parking Space - Photo Taken by CoCommonLaw
Snow Plowed into Handicap Parking Space – Photo Taken by CoCommonLaw

Snow Covered Handicap Parking, Reverse Angle - Photo Taken by CoCommonLaw
Reverse angle of snow Covered Handicap Parking – Photo Taken by CoCommonLaw

In late December 2014, around the holidays, I went to visit my family in northern Colorado.  It had probably snowed about 24 inches in the last two weeks — so there was snow abound! One night we decided to go to dinner on Pearl Street Mall in Boulder, Colorado.  While walking to the car at the end of the evening I noticed a huge snow pile in a parking space.  My Mom looked confused at the lack of handicap parking.  “Where is the handicap parking now?”  She questioned.

The answer to the question is there were less designated handicap parking spaces for disabled individuals to use.  This hit home for me because members of my family are disabled, and use handicap parking.

The streets where the handicap parking spots were buried, are public property, operated by the government (this is not a private street of some sort).  Federal law states the government has a duty to maintain handicap parking spaces in operable conditions.

(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.1 28 CFR §35.133

With the amount of snow covering this parking space there is no way anyone could park there.  Not even the biggest commercially available SUV for public consumption would be able to fit in that parking space.  The snow is just too high.

ADA Requirements

The ADA requires a certain number of parking spaces be made handicap accessible. The parking guidelines seem to be pretty clear.  What is not clear is how the parking along Pearl Street Mall would be classified.

Minimum number of handicap parking spaces - Chart provided by Ada.gov
Minimum number of handicap parking spaces – Chart provided by Ada.gov

In the smaller parking lots, reckless or intentional removal, or a single parking space may be enough to violate the law, especially if it is shown the government had knowledge of handicap parking space used as a snow-dump.

Not A Single Act of Negligence

There does appear to be one case that has some precedence in Colorado concerning handicap parking spaces and snow.

The Colorado Court of Appeals decided one case concerning access to a handicapped parking space.  A disabled visitor to a state run correctional correctional facility slipped and fell on ice in a handicap parking zone. 2 Pack v. Arkansas Valley Correctional Facility, 894 P. 2d 34, 35 (Colo. Ct. App. 1992). The visitor alleged that his injuries were caused by defendants’ negligent failure to clear and maintain properly the handicapped parking area, which violated federal laws pertaining to public accommodations for persons with disabilities. 3 Id. at 35-36. The Court ended up dismissing the suit because “the Americans with Disabilities Act (ADA) was not intended to create a remedy for a claim based on an isolated act of simple negligence.”4 Id. at 38.

An important distinction between Pack and the current situationis the snow in Pack did not make the parking spaces unusable.  The Court even noted the handicap parking space was treated as the same as the other parking spaces.  They all had snow on them and were presumably slippery.  However, in this case, as is evidenced from the photos above the parking space is completely unusable.

Furthermore, the parking situation in Boulder may have been a single act (I only happened to come upon this example), but it is difficult to assume here that it is only negligence.  The snow was intentionally plowed into an area clearly marked, both by a standard warnings on the street and with signs, that the zone for handicap parking.

Changes in the Law

Regardless, I think a court may not find this case binding anymore because of the changes in the law.  The 1992 Colorado Court of Appeals case is comparatively old, when it is considered the ADA was passed only two years prior in 1990.

The ADA was amended by Congress in 2008.

The ADA Standards for Accessible Design were originally published in 1991.  These too were amended by Congress and reissued in 2010.  ‘

With all of the changes in the law, it is not immediately clear how much weight Pack would still have with a challenge to snow covered handicap parking spaces in Colorado.

Conclusion

Cities and states around Colorado.  I know that you receive a lot of snow at times.  Finding a place to dispose of that snow can be challenging.  I am not sure if there is an easy answer to where to place the snow at times.

What is not ok is to use ADA handicap parking spaces as a dumping ground for the snow.

 

 

References   [ + ]

1. 28 CFR §35.133
2. Pack v. Arkansas Valley Correctional Facility, 894 P. 2d 34, 35 (Colo. Ct. App. 1992).
3. Id. at 35-36.
4. Id. at 38.

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