Maine Human Rights Commission v. City of South Portland

508 A.2d 948, 1986 Me. LEXIS 781

• Court: Supreme Judicial Court of Maine
• Decided: April 25, 1986
• Status: Published

Opinions

WATHEN, Justice.

The City of South Portland (South Portland) appeals from a judgment of the Superior Court (Kennebec County) for the Maine Human Rights Commission (Commission), Maine Association of Handicapped Persons (MAHP) and Judy Roberts holding South Portland in violation of 5 M.R.S.A. §§ 4591 and 4592 (1979) of the Maine Human Rights Act (MHRA). On appeal, South Portland argues that (1) the court erred in imposing a requirement of affirmative action and applying the doctrine of reasonable accommodation, (2) the court was clearly erroneous in finding that technology was reasonably available to accommodate the physically handicapped, and (3) the court exceeded its authority in granting relief. We find no error and we affirm the judgment.

PROCEDURAL BACKGROUND

On March 16, 1983, MAHP filed a complaint with the Commission claiming that South Portland had violated the MHRA. The complaint alleged that the buses used in a newly designed public transportation system were inaccessible to those physically handicapped persons who are unable to mount stairs. On October 17, 1983, the Commission found reasonable grounds to believe South Portland had violated the MHRA. Efforts for informal conciliation failed, and the Commission instituted the present action. 5 M.R.S.A. § 4612(4)(A) (1979). MAHP and Judy Roberts, a member of MAHP residing in South Portland, were granted leave to intervene. The complaints filed in the Superior Court allege that South Portland denied physically handicapped persons their civil rights by denying equal access to a place of public accommodation and engaged in unlawful discrimination by denying them access to its fixed route buses in violation of sections 4591 and 4592 of the MHRA. The plaintiffs sought declaratory and injunctive relief to make South Portland’s fixed route bus system accessible to the physically handicapped. Following a five-day non-jury trial, the Superior Court found that the para-transit service provided handicapped persons was both separate from, and unequal to, the fixed route bus service. Further, the court held that because persons using wheelchairs could have been reasonably accommodated and given access to the fixed route public transit system when it was created, South Portland engaged in discrimination in violation of sections 4591 and 4592 by purchasing buses inaccessible to persons using wheelchairs. The court entered an order requiring that South Portland submit to the court a plan making its fixed route buses accessible to persons using wheelchairs. On November 21, 1984, the court approved the plan and incorporated it in the judgment for the plaintiffs.¹ Execution of the judgment was stayed pending this appeal.

FACTUAL BACKGROUND

For many years prior to 1981, South Portland, together with Portland and West-brook, supported its public transportation system through membership in the Greater Portland Transit District (METRO). METRO operated a fixed route bus system in the three cities. None of these buses was equipped with a lift. Additionally, METRO and other agencies provided support for the Regional Transportation Program (RTP), a private, non-profit corporation. Since January 1, 1976, RTP has provided a variety of specialized transportation services in Cumberland County for persons who are elderly, or low income or handicapped.

In the summer of 1981, METRO faced the prospect of a significant cutback in federal support while planning a major capital program to construct a new bus garage. METRO projected a 30 to 35 percent decrease in bus service for South Portland and an approximate doubling of South Portland’s contributive share of METRO costs. This prospect prompted the South Portland City Council to instruct the city manager and his staff to investigate public transportation options available to South Portland. The investigation led to several public workshop meetings of the city council and culminated in a special city council meeting on December 14,1981, attended by the public, including handicapped persons and representatives of the MAHP. The city council voted to withdraw from METRO as of January 1, 1983. South Portland then began exploration of options to provide a fixed route transportation service independent of METRO.

After several public meetings it was decided that South Portland would own and operate its own fixed route buses. City officials reviewed materials submitted by five manufacturers of medium size buses, including manufacturers of the so-called “high floor” buses and Skillcraft, the sole manufacturer of a “low floor” bus. A low floor bus may be adapted to allow entry to persons using wheelchairs by a ramp pulled out or powered out from the bus stairs. Persons using wheelchairs may then roll the wheelchair onto the bus. High floor buses may be similarly adapted through the use of a hydraulic lift. With the advice of the Maine Department of Transportation (MDOT), South Portland developed bid specifications for the purchase of five “high floor” buses without hydraulic lifts.² Bids were solicited, and in May, 1982, South Portland initially purchased five high floor “City Bird” buses. At a public hearing in September, 1983, the City Council of South Portland voted to purchase a sixth high floor bus to service the fixed bus routes. Each bus cost approximately $95,000. The cost of all the buses was financed by referendum bond issues. South Portland received no state or federal funds for these purchases.

The fixed route buses began operation as scheduled on January 3, 1983. The bus service consists of four fixed routes and involves about fifty trips a day. One route is across town and three routes connect with downtown Portland. All six buses servicing these routes are high floor buses without lifts. Each of the buses is capable of seating thirty-one passengers. Bus fare is sixty cents. The buses operate from Monday through Saturday exclusive of certain holidays. The hours of service vary on each route and on Saturday. The earliest service on any route is at approximately 6:00 a.m., and the latest approximately 10:00 p.m. In an effort to complement the fixed route bus system and meet special needs, South Portland contracted with RTP and other agencies for paratransit services. Each service is offered without charge or at a discounted charge to the user and is designed to serve the needs of handicapped and elderly persons. There are numerous restrictions on the use of the services, although in the aggregate they represent a relatively comprehensive effort.

During the course of the trial, no empirical evidence was offered by either the plaintiffs or the defendant as to the number of physically handicapped persons residing in South Portland who are unable to mount stairs, or the number of persons using either the fixed route or paratransit service. Some of the persons using wheelchairs found the paratransit service acceptable as a means of transportation and others did not. The Superior Court described the latter group as believing “that the system as currently operated compromises the spontaniety and independence of life which other members of society enjoy.” In addition, the court concluded that the paratran-sit system was not comparable to an accessible fixed route transit system because of the many restrictions on service.

The Superior Court found that when the South Portland bus system was designed, “low floor” and “high floor” buses were available. Both types of buses are basically designed with steps rather than ramps or lifts. The design of a “low floor” bus permits wheelchair access by means of a ramp. A “high floor” bus, however, requires the installation of a hydraulic lift.

Each party adduced extensive, and frequently contradictory evidence concerning the origin, history, performance, initial cost and maintenance cost of each type of bus and of the ramp and lift. The evidence showed, inter alia, that at the time South Portland made its bus purchases, Skillcraft low floor buses were operating on fixed route systems in at least two large American cities. Skillcraft buses equipped with non-power ramps were available for approximately the same price that South Portland paid for its first five City Bird buses.³ By late 1983, low floor buses were in operation or scheduled for operation in the Portland and Bangor areas.

The evidence also showed that hydraulic wheelchair lifts, first developed and installed on transit buses in the early 1970’s, are complicated mechanisms, the early versions of which presented many problems of reliability and practical use. Although improved technology has reduced many of these difficulties, wheelchair lifts require maintenance. Lifts may be installed as original equipment or retrofitted to inaccessible buses for prices ranging from $12,000 to $16,000 per bus with annual maintenance cost of each lift ranging from $300 to $1,000.

SUBSTANTIVE STATUTORY PROVISIONS

The Maine Human Rights Act was first enacted in 1971 and as amended, it now includes a prohibition against discrimination on the basis of physical or mental handicap. 5 M.R.S.A. § 4552 (1979). Discrimination as defined in the MHRA “includes, without limitation, segregate or separate.” 5 M.R.S.A. § 4553(2) (1979). In 1975, section 4553 was amended to add subsection 7-A, defining physical or mental handicap as follows:

“Physical or mental handicap” means any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness; and also includes the physical or mental condition of a person which constitutes a substantial handicap as determined by a physician or, in the case of mental handicap, by a psychiatrist or psychologist, as well as any other health or sensory impairment which requires special education, vocational rehabilitation or related services.

Subsection 8 of section 4553 includes in the definition of a place of public accommodation “all public conveyances operated on land, water or in the air as well as the stations and terminals thereof.” Subchap-ter V of the Act addresses discrimination in places of public accommodation.⁴ The Superior Court based its decision upon sections 4591 and 4592 of that subchapter. Section 4591 provides:

The opportunity for every individual to have equal access to places of public accommodation without discrimination because of race, color, sex, physical or mental handicap, religion, ancestry or national origin is recognized as and declared to be a civil right.

Section 4592 provides in relevant part:

It shall be unlawful public accommodations discrimination, in violation of this Act:

For any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, to directly or indirectly refuse, withhold from or deny to any person, on account of race or color, sex, physical or mental handicap, religion, ancestry or national origin, any of the accommodations, advantages, facilities or privileges of such place of public accommodation, or for such reason in any manner discriminate against any person in the price, terms or conditions upon which access to such accommodation, advantages, facilities and privileges may depend ...”

DISCUSSION

I.

The plaintiffs contend that South Portland’s fixed route bus system must be made fully accessible to persons using wheelchairs. They claim that, since the parties agree the buses owned and operated by South Portland are “places of public accommodation” as defined by section 4553(8) of the MHRA, we need look no further than sections 4591 and 4592 to determine that South Portland is in violation of the statute. South Portland argues that subchapter V prohibits disparate treatment and invidious discrimination but does not require affirmative action or accommodation to special needs beyond that which the City provides through the paratransit service.

The parties to this litigation press their opponents’ argument to the extreme in an attempt to demonstrate the absence of a logical premise. The plaintiffs ask if they are forever to be cut off from the mainstream of society and be relegated to an inferior, separate, and unequal transportation system, one that stigmatizes them and deprives them of that measure of dignity the Act was designed to protect. South Portland asks, where will it all end? Must they do all that is technologically possible, regardless of expense, to provide accessible buses to a person in an iron lung or a person connected to an artificial life support system? Fortunately, in neither extreme does such a result flow from an accurate analysis of the law.

We have previously addressed subchap-ter III (pertaining to employment) and sub-chapter IV (pertaining to housing) of the MHRA. We have not, heretofore, been called on to interpret subchapter V of the MHRA, 5 M.R.S.A. §§ 4591-4594-A (1979 & Supp. 1985-1986). The brief filed on behalf of MAHP correctly identifies certain unique circumstances involved in discrimination against handicapped persons. Rarely, in such a case, is there invidious bias on the part of the proprietor of a place of public accommodation. Rather, such discrimination ordinarily results from the erection or maintenance of physical barriers that prevent the handicapped person from gaining entrance. Although the proprietor may not consciously intend to discriminate, the barrier excludes as effectively as would an intentional policy.⁵

The MHRA addresses the plight of the physically handicapped in section 4552 in the following terms:

To protect the public health, safety and welfare, it is declared to be the policy of this State to keep continually in review all practices infringing on the basic human right to a life with dignity, and the causes of such practices, so that corrective measures may, where possible, be promptly recommended and implemented, and to prevent discrimination in employment, housing or access to public accommodations on account of race, col- or, sex, physical or mental handicap, religion, ancestry or national origin and in employment, discrimination on account of age; and to prevent discrimination in the extension of credit on account of age, race, color, sex, marital status, religion, ancestry or national origin.

The legislative statement of policy recognizes that it is not possible to require the immediate removal of all barriers. The goal is the establishment of a continuing process of review to permit, where possible, the application of corrective measures. More explicit confirmation of the legislative purpose is provided by the statement of fact accompanying the 1974 amendment adding physically handicapped persons as a protected class under the MHRA. The document states that the MHRA was intended “to guarantee physically handicapped persons the fullest possible participation in the social and economic life of the State.” L.D. 2058, Statement of Fact (106th Legis.1974). The substantive statutory provisions involved in this case must be read in light of the unique societal problems of the handicapped and the legislative goal of matching progress with opportunity.

The rights of handicapped persons are given meaning and form in absolute terms under 5 M.R.S.A. §§ 4591 and 4592. Equal access is declared to be a civil right and discrimination is prohibited with respect to public accommodations. When faced with a similar “airtight prohibition” against religious discrimination, we construed the Act to preserve the flexibility suggested by the legislative statement of purpose. Maine Human Rights Commission v. Local 1361 United Paperworkers International Union, AFL-CIO, 383 A.2d 369, 378 (Me.1978). In that particular case, the Commission had adopted an interpretative guideline imposing the obligation on the employer “to make reasonable accommodations to the religious needs of employees ... where such accommodations can be made without undue hardship to the conduct of the employer’s business”. Id. at 376. In responding to the union’s challenge to the requirement of reasonable accommodation, we found it to be “a reasonable construction of the Maine Act,” and stated:

One of the purposes of [the guideline] is to breathe flexibility into an otherwise airtight prohibition against religious discrimination, by providing that a reasonable accommodation need not be made if it would amount to undue hardship. We find nothing unreasonable in such an interpretation.

Id. at 378.

Our opinion in Local 1361 is strengthened by the fact that the United States Supreme Court has employed a similar rationale. In an analogous context, the Supreme Court stated:

We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a state. Thus situations may arise where refusal to modify an existing program might become unreasonable and discriminatory.

Southeastern Community College v. Davis, 442 U.S. 397, 412-413, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1970) (emphasis supplied). See also Alexander v. Choate, 469 U.S. 287, -, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985).

The tension between the legislative statement of policy and the substantive prohibition mandates an application of the doctrine of reasonable accommodation to claims of discrimination in public transportation based on physical handicap. Only in this manner is it possible to distinguish between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons. The requirement of reasonable accommodation is both rational and meaningful. The obligation of the proprietor of a place of public accommodation with regard to physical barriers, is limited to that which can reasonably be accomplished without undue financial or administrative burden. The rights of the handicapped are advanced as technological change removes the justification for the erection or maintenance of barriers. When activated by a process of continuous review, as envisioned by the Legislature, the statutory prohibition is designed to insure that human dignity keeps pace with technological advancement and opportunity.

In ruling that South Portland violated sections 4591 and 4592, the presiding justice made the following findings of fact:

Technology was undisputably available in 1981 and 1982 and is available today to accommodate the physically handicapped on fixed route public transit buses. Further, this accommodation could be made at a cost not significantly greater than the cost of inaccessible buses and without significant disruptions to bus route operations.

We conclude that, the court committed no legal error in interpreting subchapter Y in accord with the doctrine of reasonable accommodation.⁶ The creation of a physical barrier in. circumstances where that result could reasonably have been avoided without financial or administrative burden, constitutes an illegal act of discrimination. That result is not altered by the fact that a separate paratransit system is also provided. It is commendable that South Portland provides service to all residents, but that does not relieve the City from its obligation to avoid discriminatory practices where possible. Even if ramps or lifts are provided on the bus routes, it is certain that not every handicapped person will be able to make use of them. The law, however, protects the rights of the individual. The plaintiffs in this case have demonstrated a violation of their civil rights. They cannot be relegated to a separate system merely because the relief they seek does not solve the multitude of problems experienced by handicapped persons as a class.

II.

South Portland next challenges the factual basis of the court’s decision. It interprets the decision as holding that the city could have ordered without undue financial or administrative burden either a low floor bus, or a high floor bus equipped with a reliable wheelchair lift, when it designed its transit system. The city claims that in both alternatives the court was clearly erroneous and the findings should be set aside. In considering factual findings on appeal, we employ a rigorous standard of review. Such findings will not be deemed clearly erroneous unless there is no competent evidence to support them. Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981). We need consider only the first alternative, the reasonable availability of the low floor bus. The record does contain conflicting testimony. It cannot be said, however, that there is no competent evidence to support the presiding justice’s conclusion that low floor buses were reasonably available and could have been used without imposing any undue financial or administrative burden. That finding alone supports the court’s finding of discrimination. We recognize that the second alternative would present a more difficult question owing to the burden of additional expenses involved in acquisition and maintenance. It must be borne in mind at this stage in our analysis that the findings relate to the issue of discrimination vel non. The fact that the Superior Court ordered the installation of wheelchair lifts as relief for an established act of discrimination, does not suggest that the same measure was required initially as a reasonable accommodation.

III.

Finally, South Portland contends that insofar as the Superior Court ordered relief that went beyond the installation of wheelchair lifts, the court abused its discretion. The city notes that the court found no evidence of intentional discrimination against the handicapped, that many other municipalities have purchased buses without wheelchair lifts in the last few years, and that the solution to the transportation needs of the handicapped is a subject of legitimate debate. In view of these facts, the city argues that the judgment is punitive and goes beyond the scope of subchap-ter V.

The court ordered training for drivers and users, and measures to assure that adverse attitudes do not frustrate the purpose behind the judgment. Once the court has found a violation of the Act, it is free to fashion a remedy to prevent further violations. See Maine Human Rights Commission v. City of Auburn, 425 A.2d 990, 995 (Me.1981). The relief ordered by the court is reasonable. Two expert witnesses testified that without such instruction, any lift-equipped bus system is almost doomed to fail. The city’s negative attitude with regard to lifts is amply demonstrated in the record. We find no abuse of discretion.

The entry is:

Judgment affirmed.

ROBERTS, VIOLETTE and SCOLNIK, JJ., concurring.

1 . The judgment requires, inter alia, the installation of wheelchair lifts and two wheelchair tie downs on each of its fixed route buses, institution of a driver and user training program, and a publicity campaign to increase public awareness about the lift equipped buses.

2 . As it considered the purchase of buses, South Portland explored the possibility of receiving funds, pursuant to 49 U.S.C. §§ 1601-1613, from the Urban Mass Transportation Administration (UMTA). Interpreting federal regulations for UMTA funding of local transit projects, officials from MDOT informed South Portland's Assistant Manager that making fixed route buses accessible to the physically handicapped was "Optional.” At the time of South Portland’s inquiry, for example, the MDOT advised that the city of Bangor was purchasing some lift equipped buses, while Biddeford, Saco, and Old Orchard Beach were purchasing buses not accessible to persons using wheelchairs.

This advice by MDOT officials was based on a July 20, 1981, amendment of the UMTA regulations that abolished a requirement that all UMTA funded buses be wheelchair accessible. Instead, there was substituted a requirement to allow for the purchase of inaccessible buses if separate "special efforts” were undertaken to provide public transportation for handicapped persons. 46 Fed.Reg. 37,492 (1981) (codified at 49 C.F.R. § 27.77 (1985)). This advice, and South Portland’s reliance upon it, was apparently based solely upon the federal regulations, without consideration of responsibilities possibly imposed by state law, including the MHRA. Ultimately, for reasons unrelated to the wheelchair accessibility question, South Portland decided not to pursue UMTA funding.

3 . The Superior Court found the Skillcraft bus cost $96,500. The exact cost of the City Bird buses is somewhat unclear. As the Superior Court observed, although the city manager testified to a cost of $95,000, the bidding documents reflect a cost of $97,500.

4 . 5 M.R.S.A. § 4553(8) (Supp.1985-1986) defines place of public accommodation as follows:

“Place of public accommodation" means any establishment which in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public; and it includes, but is not limited to: Inns, taverns, roadhouses, hotels, whether conducted for the entertainment or accommodation of transient guests or of those seeking health, recreation or rest, restaurant, eating houses or any place where food is sold for consumption on the premises; buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectioneries, soda fountains and all stores where beverages of any kind are retailed for consumption on the premises, retail stores and establishments; dispensaries, climes, hospitals, rest rooms, bathhouses, barber shops, beauty parlors, the-atres, motion picture houses, music halls, airdromes, roof gardens, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors, swimming pools, seashore accommodations and boardwalks, public libraries, garages and gasoline stations; all public conveyances operated on land, water or in the air as well as the stations and terminals thereof; public halls and public elevators of buildings occupied by 2 or more tenants or by the owner and one or more tenants.

5 . With regard to § 504 of the Rehabilitation Act of 1973, the United States Supreme Court has observed:

Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference — of benign neglect. Thus, Representative Vanik, introducing the predecessor to § 504 in the House, described the treatment of the handicapped as one of the country’s "shameful oversights,” which caused the handicapped to live among society “shunted aside, hidden, and ignored." Similarly, Senator Humphrey, who introduced a companion measure in the Senate, asserted that "we can no longer tolerate the invisibility of the handicapped in America....”

Alexander v. Choate, 469 U.S. 287, —, 105 S.Ct. 712, 718, 83 L.Ed.2d 661 (1985) (citations and footnotes omitted).

6 . In one respect the decision of the Superior Court deviates from the analysis set forth in this opinion. The Superior Court found that a pri-ma facie case of discrimination was established solely by the evidence that wheelchair users were effectively excluded from the fixed route bus system and forced to rely on a separate system. The Superior Court considered the possibility of accommodation and hardship only in determining whether to grant relief. Under our analysis the creation of a physical barrier constitutes an act of discrimination only if it could have been avoided without imposing undue hardship. Although the prima facie standard may appropriately be used as a burden shifting device, the concept of accommodation is nevertheless part of the decisional framework for determining liability. In Percy v. Allen, 449 A.2d 337 (Me.1982), we stated:

Therefore, at the initial, liability phase in which the legality of the defendants’ conduct is assessed, plenary consideration must be given to the issue of accommodation, regardless of the nature of the requested relief.

Id. at 346. Because, the Superior Court made all necessary findings of fact in the case, the technical error in the line of analysis does not result in an erroneous judgment.