January 3, 2012

Re: FTA Complaint Number 11-0306

Dear [name withheld]:

This letter responds to your complaint against the City of Central, Colorado (the City), alleging discrimination on the basis of disability. The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation comply with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38, and 39.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation provider, which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.

Complaint Allegations

In your complaint, you state that you use a wheelchair and attempted to take the Central City Free Ride (the Shuttle) on April 1, 2011. The vehicle that stopped at the pickup location, however, was not wheelchair accessible. You were later informed that an accessible vehicle was not on the route because it was undergoing an oil change that day. On April 11, 2011, you called the City to ensure an accessible vehicle would be on the route the next day. You were told that the accessible vehicle “had no doors” and would not be placed in service.

FTA investigated your allegations and sent an information request to the City. We received a response from the City that provided relevant information. Your allegations were not disputed. The City confirmed that it did not provide wheelchair-accessible transportation to you on April 1 or, as you requested in advance, on April 12, because the accessible van was undergoing repair.

The Shuttle Service

According to its response to FTA, the City has been providing complimentary fixed route bus transportation to the general public, referred to as the “Shuttle” or “Free Ride,” through a contractor since December 28, 2010. The Shuttle provides transportation between various casinos located in Central City and Black Hawk. It operates along a fixed route with eight designated stops Sundays through Thursdays from 10 a.m. to midnight and Fridays and Saturdays from 10 a.m. to 2 a.m. The Shuttle arrives at a stop approximately every 30 minutes.

On Sundays through Thursdays and Fridays until 6 p.m., when demand is lower, the contractor deploys a 14-passenger van (2004 Ford E-450) equipped with a wheelchair lift. On Fridays from 6 p.m. to 2 a.m. and on Saturdays, the contractor deploys a 32-passenger bus (1999 Ford F-550) that is not equipped with a wheelchair lift.

The City notes that while it operates an inaccessible bus on Fridays and Saturdays, an accessible vehicle can be dispatched for wheelchair users if they provide advance notice. Signs posted on the vehicles instruct passengers on how to call ahead to ask for an accessible vehicle; the contractor requests 48 hours’ notice, though, it informed the City that it could provide an accessible vehicle with less notice if one is available.

Analysis

While there is an interim provision in the DOT ADA regulations allowing private motor coach companies to require 48 hours’ advance notice for boarding assistance, this provision does not apply to fixed route bus service operated by public entities such as the City. Public entities must ensure vehicles acquired after August 25, 1990, for use in fixed route bus service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. The requirement applies regardless of whether the vehicles are purchased new or used or leased and is more fully explained in 49 CFR §§37.71–37.73. It is expected that individuals with disabilities who require use of a vehicle lift will be able to wait at a bus stop and board an arriving vehicle, just as nondisabled customers do, without having to call ahead.

Conclusion

By requiring you to provide advance notice of your wish to use the fixed route Shuttle service and by denying you transportation, the City is not in compliance with the DOT ADA regulations. Our office is following up separately with the City to help ensure it takes the actions needed to operate the Shuttle service consistent with all applicable DOT ADA regulations. While FTA has not provided funds to the City for the Shuttle service, we will attempt to resolve this matter through informal means.

The investigative portion of this complaint has concluded. We are therefore taking no further action and closing your complaint as of the date of this letter. If you have any questions, please contact me or Dawn Sweet at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 11-0306. Thank you for bringing this matter to our attention.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

Enclosure

cc:
City of Central
FTA Region 8

Letter to the Transit Provider
January 3, 2012

Re: FTA Complaint No. 11-0306

Dear Mr. Lanning:

The Federal Transit Administration (FTA) Office of Civil Rights received the City of Central Colorado’s (the City) October 10, 2011, response to our information request on FTA Complaint No. 11-0306. The FTA Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the U.S. Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, 38, and 39.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified, they are presented to the transit provider and assistance is offered to correct them within a predetermined timeframe. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation provider, which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

The complainant, who is a wheelchair user, alleged she attempted to use the Central City Free Ride (the Shuttle) on April 1, 2011. The vehicle that stopped at the pickup location, however, was not wheelchair accessible. She was later informed that an accessible vehicle was not on the route because it was undergoing an oil change that day. On April 11, 2011, she called the City to ensure an accessible vehicle would be on the route the next day. She was told that the accessible vehicle “had no doors” and would not be placed in service.

In its October 10 response to FTA, the City confirms that it did not provide wheelchair-accessible transportation to the complainant on April 1 or, as she requested in advance, on April 12. After reviewing the information gathered, our concerns include the complainant’s experiences but are also much broader. The City’s response indicates that the City is out of compliance with specific provisions of the DOT ADA regulations in its operation of the Shuttle service. Our concerns are described in detail below.

The Shuttle Service

According to its response to FTA, the City has been providing complimentary fixed route bus transportation to the general public, referred to as the “Shuttle” or “Free Ride,” since December 28, 2010. The City assumed sole responsibility for the Shuttle when the City of Black Hawk abruptly dissolved a joint transportation authority that the two cities had previously relied upon to provide transportation for their residents and for customers and employees of the many casinos within both communities. On December 16, 2010, the City entered into a contract with Colorado Coach Transportation, LLC, a private contractor, to provide the Shuttle service.

The Shuttle provides transportation between various casinos located in Central City and Black Hawk. It operates along a fixed route with eight designated stops Sundays through Thursdays from 10 a.m. to midnight and Fridays and Saturdays from 10 a.m. to 2 a.m. The Shuttle arrives at a stop approximately every 30 minutes.

The Shuttle serves approximately 3,000 to 5,000 passengers per month, but the number varies depending on demand. Typically, demand for the Shuttle is light during the week but increases on weekends and holidays.

The City’s contractor uses two vehicles to provide the Shuttle service. On Sundays through Thursdays and Fridays until 6 p.m., when demand is lower, the contractor deploys a 14-passenger van (2004 Ford E-450) equipped with a wheelchair lift. On Fridays from 6 p.m. to 2 a.m. and on Saturdays, the contractor deploys a 32-passenger bus (1999 Ford F-550) that is not equipped with a wheelchair lift. (The contractor also has a larger motor coach in its fleet with a wheelchair lift, but it is not typically used for the Shuttle service.)

The City acknowledges that it operates an inaccessible bus during the most popular hours of the Shuttle service. However, it notes that an accessible vehicle can be dispatched for wheelchair users and others who need the lift to board if they provide advance notice. Signs posted on the vehicles instruct passengers on how to call ahead to ask for an accessible vehicle; the contractor requests 48 hours’ notice, although it informed the City that it could provide an accessible vehicle with less notice if one is available. The City indicates that the accessible van used during the weekday for the Shuttle is taken out of service for maintenance on Fridays and Saturdays but remains on standby as the maintenance schedule permits to provide wheelchair-accessible transportation if an individual requests it. In the complainant’s case, she could not reserve the accessible vehicle when calling a day ahead because it was under repair.

While the City reports that the lift-equipped van undergoes regular and frequent maintenance inspections and that the drivers check the lift each morning before the vehicle is placed in service, there are no procedures for providing alternative transportation to customers needing a lift when the lift fails in service. The City also indicates that it does not provide “on-demand paratransit” as a complement to its Shuttle service.

Analysis

The City’s response to FTA emphasizes the need for wheelchair users to call ahead to reserve an accessible Shuttle vehicle. It denies discriminating against the complainant on the basis that she did not provide sufficient advance notice of her desire to use the service. This position reflects a misinterpretation of the DOT ADA regulations. While there is an interim provision in the regulations allowing private motor coach companies to require 48 hours’ advance notice for boarding assistance, this provision does not apply to fixed route bus service operated by public entities such as the City. Individuals with disabilities who require use of a vehicle lift must be able to wait at a bus stop and board an arriving vehicle, just as nondisabled customers do, without having to call ahead.

We recognize that the Shuttle service is being provided under contract and that the contractor has a limited number of accessible vehicles in its fleet. While a public entity may contract out its service, however, it may not contract away its ADA responsibilities. As explained in 49 CFR §37.23 of the DOT ADA regulations, a public entity that enters into a contractual arrangement with a private entity to operate fixed route service must ensure the contractor meets all applicable requirements. Private entities “stand in the shoes” of public entities with whom they contract to provide transportation services, meaning the contractor is subject to precisely the same requirements as the public entity. The requirements apply primarily to vehicle acquisition requirements and to service provision requirements.

Public entities must ensure vehicles acquired after August 25, 1990, for use in fixed route bus service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. The requirement applies regardless of whether the vehicles are purchased new or used or leased and is more fully explained in 49 CFR §§37.71–37.73. The contractor’s use of the 32-passenger bus that lacks a wheelchair lift puts the City out of compliance with the rule’s vehicle acquisition requirements.

In addition to vehicle acquisition requirements, there are general service requirements that the City, either directly or through its contractor, must follow when operating the Shuttle. Public entities must keep vehicle lifts in operative condition as outlined in 49 CFR §37.163. The City reports that its contractor sufficiently maintains the lift-equipped van and we do not have information to suggest otherwise. Despite preventative maintenance, however, vehicle lifts do sometimes break down in service. If a vehicle operates on a fixed route with an inoperative lift, and the headway to the next accessible vehicle on the route exceeds 30 minutes, an entity must promptly provide alternative transportation to individuals with disabilities who are unable to use the vehicle because its lift does not work, as described in §37.163(f). The City indicates that it does not currently have provisions for alternative transportation.

The most significant deficiency we see in the current operation of the Shuttle, along with the use of the inaccessible vehicle, is the lack of complementary paratransit. Under 49 CFR §37.121, a public entity operating a fixed route system must provide comparable paratransit to individuals with disabilities who cannot use the fixed route. Even if the Shuttle were using only accessible vehicles, the City would need to run a separate demand-responsive paratransit service for individuals with disabilities who cannot use the Shuttle, for example, because they are unable to travel to the bus stop due to their disability and/or barriers in the pedestrian environment such as lack of curb ramps. By statute, complementary paratransit must provide a level of service that is comparable to that provided by the fixed route system (Public Law 101-336, Section 223). This includes a requirement to provide complementary paratransit service within the same area served by the fixed route system, defined under 49 CFR §37.131(a) as a corridor ¾-mile wide on each side of a fixed bus route. The full requirements for ADA complementary paratransit, covering eligibility and service criteria, are outlined in Subpart F of 49 CFR Part 37.

Conclusion

The FTA Office of Civil Rights has found that the City is not in compliance with the DOT ADA regulations due to its use of the inaccessible vehicle in its fixed route Shuttle service, requirement that wheelchair users call ahead for service, and failure to provide ADA complementary paratransit. While we understand the limitations of the City’s current service contract and the potential financial challenges, the ADA requirements have been in effect since 1991.

FTA has not provided funds to the City for the Shuttle service. We are seeking voluntary compliance and appreciate the City’s commitment expressed in its October 10 letter to work with FTA to achieve compliance informally in the event our investigation uncovered deficiencies. As a first step, we request an update on the City’s plans for and progress in ensuring compliance with the DOT ADA regulations with regard to the vehicles put into service, real-time access to the service by wheelchair users, and the provision of ADA complementary paratransit. Please also describe your plans to provide alternative transportation in the event a lift breaks down in service and the headway to the next accessible vehicle exceeds 30 minutes. Include estimated timelines for implementation of each corrective action measure.

The response should be sent to my attention within 30 calendar days of the date of this letter at the address above. In the meantime, if you have any questions regarding this inquiry, please contact me or Dawn Sweet at (202) 366-0529 or via e-mail at dawn.sweet@dot.gov. We will remain available to provide technical assistance as we work toward informal resolution. Please include the FTA complaint number in any correspondence regarding this complaint. A copy of our closure letter to the complainant is enclosed for your records. Thank you for your assistance.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

Enclosure

cc:
Linda C. Michow, City Attorney
FTA Region 8