Thursday, December 22, 2011

N.D. Cal. Denies Preliminary Injunction to Prevent Closure of "Warm Pool" in Berkeley

You might have to be a real ADA Title II wonk to be interested in this one, but here goes. Earlier this week, Judge Susan Illston of the United States District Court for the Northern District of California issued an opinion denying the plaintiff's motion for preliminary injunction in Cochrell v. Berkeley Unified School District, 2011 WL 6330657 (N.D. Cal., Dec. 19, 2011). Cochrell, who has neuropathy, sued the defendant school district to bar it from closing the "Warm Pool" on the Berkeley High School campus. That pool is in a gym building that the school district plans to demolish, because the building is outdated and does not meet seismic standards. Cochrell testified that, because of his disability, he needs to swim in a pool that is kept at 92 degrees and is sufficiently deep or he cannot get any other physical exercise, and that the Warm Pool is the only pool that the city maintains that meets those criteria. He also introduced evidence that the Warm Pool housed the city's only swim program that served people with disabilities. Relying on the (interesting, problematic) cases of Rodde v. Bonta and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, Cochrell argued that the impending closure of the Warm Pool violated Title II of the ADA, and he moved for a preliminary injunction.

Although the court found serious questions going to the merits, it nonetheless denied a preliminary injunction. The court concluded that a "critical difference" between this case and Rodde and Dreher Park was that the city here provides aquatics programs for people with disabilities at locations other than the pool that it plans to close.  Although those are not "warm pools," the court found force in the city's argument that there is no ADA accessibility standard that requires pools to be at 92 degrees, and that in fact some people with disabilities complain that 92-degree water is too hot or too cold. It also found that the balance of equities did not tip sharply in Cochrell's favor (as it would have to if the court were to grant a PI based on serious questions going to the merits). The court found it undisputed that a number of structural evaluations had found that the gym building containing the Warm Pool did not meet seismic safety standards, and it noted that "the Berkeley YMCA is located one block from the Warm Pool, and has two warm pools (one larger graduated depth pool heated to 88–90 degrees Fahrenheit, and one smaller shallow pool heated to 90–92 degrees Fahrenheit)."  The court said that the YMCA has expressed an intention to offer "streamlined financial assistance" to current users of the city's Warm Pool so that the cost of membership in the Y would be similar to the cost they currently pay to use the Warm Pool.



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