San Francisco Chinese Christian Union, et al. v. City and County of San Francisco, et al.; Complaint

8/18/2019 San Francisco Chinese Christian Union, et al. v. City and County of San Francisco, et al.; Complaint

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Kevin T. Snider,

CA

SBN 170988

1

Michael J Peffer,

CA

SBN 192265

Matthew B. McReynolds

CA

SBN

234

797

PACIFIC JUSTICE INSTITUTE

212 9th Street, Suite 208

Oakland, CA 95827

Tel.: (510) 834-7232

Fax: 9

16)834-8784

E-mail: [email protected]

Conrad Reynoldson,

WA

SBN 48187

2

WASHINGTON CIVIL DISABILITY ADVOCATE

44

21

51

51

A venue N mtheast

Seattle, WA 98105

Te

l

: (206) 855-3134

E-mail: Comad,[email protected]

Attorneys for Plaintiffs

PR 1 4Z 16

CLERK OF

THE

COURT

BY

:

t}OWMAN

LIU

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAN FRANCISCO CHINESE CHRISTIAN

UNION,

RICHARD LAM, PEGGY LAM,

PATRICK

SULLIVAN,

SYLVIA

TERPSTRA,

Plaintiffs,

vs.

CITY AND

COUNTY

OF SAN FRANCISCO,

PIDLIP ALAN GINSBURG, GENERAL

MANAGER, RECREATION

AND PARKS

DEPARTMENT, in his official capacity,

Defendants.

1

Counsel

of

record and for service.

2

Application for

pr

h c vice pending.

Case No. 16 551486

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

[CCP §526a]

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Complaint


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COMES OW PLAINTIFFS who allege as follows:

2

3 ntroduction

4 The City and County

of

San Francisco has installed a three-inch hole in the center

of

a three-

5 foot diameter concrete base for public urination. This hole

is

called a

pissoir

t is located at the

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southwest quadrant

of

Mission Dolores Park at a busy street corner, between a sidewalk and a train

7 stop. Persons urinate into the hole in public view. There is no signage, accessibility for persons wit

8 disabilities, and no place to wash hands. This complaint is brought as a taxpayer action for equitable

9 relief to prevent the continued illegal and wasteful expenditure

of

public funds to install and maintai

10 the pissoir The basis for the requested relie f is that the pissoir violates the Jaw and public policy

regarding privacy, sex discrimination, public health, access for persons with disabilities, and the

12 Plumbing Code. Because the City Attorney and Attorney General have failed to bring an action to

13

halt the

pissoir

as a public nuisance, the Plaintiffs bring this Complaint.

4

Parties

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1

Plaintiff, San Francisco Chinese Christian Union is a religious nonprofit corporation

incorporated in the State

of

California and doing business

n

the City and County

of

San Francisco,

California. Its members include fifteen churches within the City and County

of

San Francisco. Thes

represent persons, both male and female, which include residents and citizens of the City and County

San Francisco who have paid a tax to the City and County

of

San Francisco. They use Dolores Park

ride the San Francisco Municipal Transit Authority (SFMTA) in which they board and alight the trai

at the stop at the corner of 20th and Church Street. Further, some of their members are wheelchair

bound

or

take care

of

a child or parent who uses a wheelchair.

The San

Francisco Chinese Christian

Union has served the residents

of

San Francisco since 1916. Additionally, the purpose statement

of

t

San Francisco Chinese Christian Union's bylaws state: The purpose

of

this organization is to prom

Christian fellowship among the churches and to work cooperatively in projects directed toward the

community and in projects related to the spreading of the Christian Gospel. The mission and goal o

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Complaint


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the members includes caring for the sick

and infirm within the community.

To

that end,

the

San

Francisco Chinese Christian Union was one of fifteen organizations which raised funds to build the

Chinese Hospital in 1923

and

which was erected in 1925.

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Since its inceptions, a representative from

the

San

Francisco Chinese Christian Union has sat

on

the board

of

the Chinese Hospital. The

San

Francisco Chinese Christian Union has an interest in the care of the sick, including those with

disabilities . Moreover, the

San

Francisco Chinese Cluistian Union has associational standing to brin

taxpayer suit.

2. Richard Lam is a resident and citizen of the City and County of San Francisco,

California, who owns real prope1iy within that jurisdiction and has, within one year of the filing

of

th

Complaint, has been accessed for and liable to

pay

a tax - including, but not limited to, property taxe

to, and for the benefit

and

support of, the City

and

County of San Francisco. Mr. Lam uses Dolores

Park, at times riding the train there.

3. Peggy Lam is a resident and citizen of the City and

County

of San Francisco, Californ

who owns real prope1iy within that jurisdiction and has, within

one

year of the filing of this Complai

has

been

accessed for and liable to

pay

a tax - including, but

not

limited to, property taxes - to, and

the benefit and support of, the City

and

County of

San

Francisco. Mrs. Lam uses Dolores Park, at

times riding the train there.

4. Patrick Sullivan is a resident and citizen of the City and County of San Francisco,

California who has, within one year of the filing of this Complaint, been accessed for and liable to pa

a tax - including, but not limited to, property taxes - to, and for the benefit and supp01i of, the City a

County of San Francisco. Mr. Sullivan lives across the street from Dolores Park and has a clear vie

of persons using the p sso r from his kitchen window. He is informed

and

believes and thereon alleg

that the presence of the p sso r negatively impacts the value of his home.

3

The

Tung Wah Dispensary (est. 1899) was destroyed in the 1906 earthquake. The Chinese Hospita

was established in 923 to replace the Dispensary.

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Complaint


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5 Sylvia Terpstra is a resident and citizen

of

the City and County

of

San Francisco,

California, who owns real prope1iy within

that juri

sdiction and has, within one year

of

the filing

of

th

Complaint, has been accessed for and liable to pay a tax - including, but

not

limited to, property taxe

4 to, and for the benefit and support of, the City and County

of

San Francisco. She uses Dolores Park

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at times riding the train there.

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6.

Defendant, City and County of San Francisco, is an entity established pursuant to A1i

XI

, §6,

of

the California Constitution. The City and County

of

San Francisco has jurisdictional cont

over the Recreation and Parks Department, including Mission Dolores Park, the sidewalks surroundi

Mission Dolores Park, and the

San

Francisco Municipal Transportation Agency which has a stop

at

t

corner of 20th and Church Street. The City and County of San Francisco lays and collects taxes for

support

of

its activities within its jurisdiction. The City and County of San Francisco has authority

over

the

installation and maintenance of the

pissoir.

Moreover, the City and County of San Francisco

has authorized the expenditure of

funds for the installation and maintenance

of

the

pissoir.

7 Defendant, Philip Alan Ginsburg, serves as the General Manager

of

the Recreation an

Parks Depaiiment for the City and County

of

San Francisco. Mr. Ginsburg has operational oversigh

parks within San Francisco, including Mission Dolores Park.

The

Plaintiffs are informed and believe

and thereon allege

that

at all times herein mentioned, Mr. Ginsburg was in office and had control and

oversight over the installation

of

the

pissoir.

The Plaintiffs are further informed and believe and

thereon allege that at all times herein mentioned, Mr. Ginsburg currently has control and oversight ov

the maintenance

of

the

pissoir.

He is named in his official capacity.

enue

8 Venue in the Superior Court in and for the County of San Francisco is proper because

both the real property Mission Dolores Park, the sidewalks

sunounding

the park, and the train stop)

and the res

pissoir),

which is the subject

of

this dispute, are located in the City and County

of

San

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Francisco, California. Moreover, all actions described herein occurred within the City and County

o

San Francisco. Further, the Plaintiffs reside and conduct business within the City and County of Sa

Francisco. The Defendant conducts business within the City and County

of

San Francisco and

Plaintiffs are informed and believe and thereon allege that the Defendant also resides there in the Cit

and County

of

San Francisco,

as

well.

acts

9. Mission Dolores Park is a

16 1

acre city

park

in San Francisco, California, located

the eastern edge of the Castro/Upper Market neighborhood, bounded by 18th Street to the north,

Dolores Street to the east, 20th Street to the south, and Church Street to the west. The majority

of

Mission Dolores Park consists of open space, totaling approximately 11.9 acres, including a

playground, two dog play areas, multi-use field, and other grassy and landscaped areas.

Open

betwe

6 a.m. and 10 p.m., Mission Dolores Park is primarily used for active and passive recreation,

as

well

various public events, including concerts, outdoor movie nights, performances, political rallies, and

other events.

10.

The Mission Dolores Park Rehabilitation Project ( Project )

was

financed by the 200

Clean and Safe Neighborhood Parks $153 million general obligation bond approved by San Francisc

Voters n 2008. Id.

at 1

The project sponsor, the San Francisco Recreation and Park Department use

portion

of

the $13.2 million for the Mission Dolores Park rehabilitation.

11.

Plaintiffs are informed and believe and thereon allege that two new restrooms were

included for a total

of

34 fixtures (toilets). Mission Dolores Park maintenance

staff

is able to increas

or

decrease the number of fixtures available to the public by opening locked interior sliding partition

type doors in the new

restroom buildings. Tempora1y portable toilets are added for large events

(greater than 5,000 people). Seasonal portable toilets are near the entry plaza.

12. The project also included pissoir (also known as a pPod) in the park s southwestern

28 quadrant, by the entry plaza and

next

to the Muni tracks.

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13. The

p sso r

has a semi-circle screen constructed ofwire fencing. Underneath the wir

fencing is a mesh-type material that is transparent in nature. Plaintiffs are informed and believe and

thereon allege that the material is a vinyl mesh coated polyester or perhaps polypropylene. Behind t

there is a white

mat

erial,

the

composition

of

which is unknown to Plaintiffs, with black lettering prin

on it. The lettering reads: How would you design this playground? Call (415) 895-9381 Other th

that, the

p sso r

has no signage at all. This includes no signage that the hole is a place for urination.

Further, there is no signage that the p sso r is for male, female or unisex use. Finally, there is no

signage regarding disability access or pointing persons with disabilities to restroom facilities that

accommodate persons with disabilities. The slopes

of

the ramps leading to and from the

p sso r

are

steep and dangerous to persons with disabilities. The ramp running parallel to Church Street towards

18th

Street has slopes has steep as 1 2 and completely lacks handrails in some parts. The ramp toward

20th

Street has slopes as steep as 6.

14. The

p sso r

has a 46 diameter concrete base - 36 at the entrance

-and

a drain with a

fine mess grate to catch urine but block solids. The drain includes a one way valve. The mouth of th

drain is five inches in circumference and the hole going to the sewer is

tlu ee

inches in circumference

Plaintiffs are informed and believe and thereon allege that the

p sso r

is designed to accommodate on

user at a time. However, on accession, more than one person at a time urinates in it. A user can ent

the

p sso r

from the north-south internal pathway and face the interior

of

the park. Views

of

the

p ss

user from the interior of Mission Dolores Park are not completely blocked by a screen, which faces t

Muni tracks. Views of the p sso r from the perimeter of the Park and public right-of-way near Chur

Street and 20th Street are

not

hidden.

15.

16.

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The p sso r is not compliant with plumbing codes.

The

p sso r

emanates odors which are offensive to the senses.

The

p sso r

has no soap, running water, or other amenities for washing hands. Person

28 urinating in the hole leave the

p sso r

with unwashed hands and either continue on their way on the

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public sidewalks into the community

or

they board the Muni train which stops five to ten yards from

the hole. These unsanitary conditions result in the spread of germs and disease.

18. Allowing public urination

at

the pissoir is injurious to health. The safety and health

o

the public at large is endangered by the improper disposal

of

human waste in a public place.

19. Allowing public urination at the pissoir is indecent,

and

offensive to the senses.

Facilitating public urination is indecent because it is grossly unseemly or offensive to manners and

morals.

20. Allowing public urination at the pissoir is offensive to the senses. Urine is nauseatin

and offensive

when

excreted in public places. Public urination is offensive to the sense

of

sight and

smell.

21. The

pissoir

is not compliant with laws requiring access to persons with disabilities -

pmticularly those whose mobility depends

on

a wheelchair.

22.

The

individually named Plaintiffs include those who will not use the pissoir because

such would violate their privacy by exposing them to public shame and embarrassment. These inclu

both males and females. The organizational Plaintiff - San Francisco Chinese Christian Union -

represents both males and females who will not use the pissoir for

the

same reason. Fmther,

unexpectedly being exposed to someone s private parts also violates Plaintiffs privacy.

23.

In

the alternative, if he pissoir has been installed exclusively for males, then the fema

Plaintiffs, including those represented by the San Francisco Chinese Christian Union, have been den

equal access to toilet facilities. (Note that there is no signage indicated whether the hole is for male,

female,

or

unisex).

24.

The San Francisco Chinese Christian Union represents persons whom are disabled

or

take care

of

a disabled parent

of

child. Because

of

its construction, persons with disabilities are una

to use the pissoir Further, there is no signage directing persons with disabilities to facilities for

whic

they would have access.

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omplaint


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25. Plaintiffs are informed and believe and thereon allege that the City and County of San

Francisco intends to expend tax dollars on the installation and maintenance

of

additional pissoirs wi

its jurisd iction.

26.

FIRST C USE OF CTION

Violation f Privacy

The

open-air urination hole violates the privacy of those who need to use the restroom

but would be required to expose their bodies and suffer the shame and degradation

of

urinating in

public view. Seclusion in bodily evacuation is a societal norm and constitutes one

of

the

most

basic

expectations for privacy. Privacy is a fundamental right enumerated in the Ca lifornia Constitution.

C

Const., Art. I, §1 as well as the penumbra

of

rights in the U.S. Constitution.

27.

The

hole provided for open-air urination is particularly egregious for women and girl

Because

of

the unique way in which females urinate, when there is no standard toilet for which they

sit, they must lift their skirts or pull down their pants and undergarments and squat over the hole. Th

exposes the entire lower part of their bodies to public view. Women and girls would be subject to

extreme emba1rnssment in a measure not experienced by men or boys who merely unzip their trouse

and aim at the whole when urinating. Indeed, whether a female faces the fence towards the train sto

turns her back to the fence, or squats sideways, she will be exposing much of her body to the public.

28.

Not

only are the privacy rights

of

those having to publically relieve themselves in the

sewer hole abridged, but the privacy rights of individuals who happen to come upon the one urinatin

also violated. San Francisco

s

Board

of

Supervisors has recognized and further articulated the self-

evident proposition that privacy is invaded when a member

of

the public is unwillingly or

unexpectedly exposed to a person's private paiis . S.F. Police

Code§

154(a). The euphemism

private pmis is laid bare in subsection b which reads

in

full , as follows: A person may not expose

his

or

her genitals perineum r anal region on any public street, sidewalk, street median, parklet,

plaza, or public right-of-way as defined in Section 2.4.4(t)

of

the Public Works Code, or

in

any trans

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vehicle, station, platform, or stop of any government operated transit system in the City and County

San Francisco. (Emphasis added).

29

. Urinating

in the

pissuir

at the present location is

an act

facially

in

contravention to

th

4 text

of

the

above-quoted law.

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30. S.F. Police Code §154(a) is entirely

consistent

with section 4.01

of the

San Francisco

Park Code which

likewise prohibits exposure

of

the intimate

patts of the body

, i.e., genitals,

pubic

hair, perineum, anal region or pubic hair

region

. Section 4.0l(h) .

31.

Because the act

of

public urination

causes

innocent members

of

the

community

to

unwillingly and unexpectedly be exposed to intimate parts of a stranger s body,

the

open-airpissair

necessarily intrudes upon privacy.

32.

Tax

dollars

have

been, and are being spent,

by

the City and County of

San

Francisco,

and

at the

direction

of

the Recreation and Parks General

Manager on the

above-described activities

which

violate

the privacy

rights of Plaintiffs, their members, and the residents of San Francisco.

33.

Defendants

have utilized employees of

the

City

and

County of

San

Francisco, includi

the

Recreation

and Parks

Department,

in

canying out

the

installation

and

continued maintenance

of

t

pissoir Such

is against public policy and in violation of Plaintiffs' rights.

34.

The expenditure of taxpayer funds for

the

acts described above is an illegal expenditu

of, waste of, or injmy to the estate, funds, or

other

property of the City and County of San Francisco

Thus,

Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the

illegal

expenditme

of, waste of, or

injmy

to, the estate, funds, or

other

property of the City and Coun

of

San

Francisco.

35.

Absent relief

from

this Court, Defendants will continue to engage in

conduct

in

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contravention

to the

rights

of

privacy,

and

by extension, public policy, as found

in

the U.S. and

27 California Constitutions

as

well as local codes.

28

36

Plaintiffs make this request for injunctive relief based upon their standing as taxpayer

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Complaint


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pursuant to CCP §526a.

37. In addition, there

is

a disagreement between the parties as to whether open-air

pissoir

3

violate privacy rights and are against public policy. Defendants believe that use

of

open-airpissoirs

4 which entail urination in public view, does not violate either privacy rights or public policy relative

5 pnvacy. Plaintiffs disagree.

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38.

Plaintiffs are informed and believe and thereon allege that Defendants will fmiher spe

tax dollars on the installment and maintenance of

otherpissoirs

within the jurisdiction of the City an

County of San Francisco. Absent declaratory relief from this Court, Defendants will continue to

maintain the pissoir

39.

40.

restroom.

As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.

SECOND CAUSE OF ACTION

Unlawful

Sex Based Discrimination

The

pissoir

is particularly onerous to the privacy rights ofwomen seeking to use the

41. Plaintiffs are informed and believe and thereon allege that the pissoir has been install

for the exclusive use ofmales. Such violates State law and public policy requiring equal facilities fo

both sexes. Health Safety Code §§ 118500 and 118505 requires that every public agency that

conducts an establislunent serving the public or open to the public and that maintains therein restroo

facilities must have them available for each sex. These facilities must be in conformity with the Stat

Plumbing Code. Under the Code, [s]eparate toilet facilities shall be provided for each sex. 4 CC

412.3. The exception under the re

gu

lations is that facilities that are for single use must be permitted

both sexes.

42. In light of these provisions, if the place for open-air urination is only for men, such

unlawfully discriminates against women. Defendants have no narrowly tailored compelling interest,

which uses the least restrictive means, for installing a facility for urination exclusively for males.

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43. Tax dollars have b

ee

n, and are b

ei

ng spent, by the City and County

of

San Francisco,

and at

th

e direction

of

the Recreation and Parks General

Mana

ger

on

the above-described activities

which violate rights to equal protection for Plaintiffs, their members, and the residents of San

Francisco.

44.

Defendants have utilized employees of the City

and

County of

San

Francisco, includi

the Recreation and Parks Department in carrying out the installation and continued maintenance of t

sso ir in violation of Plaintiffs rights and against public pol icy.

45.

Th

e expenditure

of

taxpayer funds for the acts described above is an illega l expenditu

of, waste of, or injury to the estate, funds,

or

other property of the City and County of San Francisco

Thus, Petitioners bring this action under CCP §526a to obtain a

jud

gment to restrain a

nd

preve

nt

the

illega l expenditure of, waste of,

or

injury

to

, the estate, funds,

or

other property of the City

and

Coun

of San Francisco.

46. Absent relief from this Court, Defendants will continue to engage in conduct in

contravention to the rig

ht

s of equal protection, and by extension, public policy, as found in the U.S.

California Constitutions as

we

ll as local codes.

47.

Plaintiffs make this request for injunctive relief based upon their standing as taxpayer


48. In addition, there is a disagreem

en

t between the parties as to whether

open airpissoir

discriminate against

women

a

nd

girls and are against public policy. Defendants believe that use of

open-air pissoirs which entail urinat ion in public vi

ew

is not discriminatory as to females or against

public policy. Plaintiffs disagree.

49. Plaintiffs are informed and believe and thereon allege that Defendants will further sp

tax dollars on the

in

stallmen t and maintenance of other

pissoirs

within the jurisdiction of the City an

County of San Francisco. Absent declaratory relief from this Comt, Defendants will continue to

maintain the

pissoir.

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50. As such Plaintiffs request declaratory relief based

upon

their standing as taxpayers .

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THIRD CAUSE OF ACTION

Violation f Public Policy Health Hygiene

The open-air place for urination has no sink with running water and soap. Providing

place to wash hands after use of the restroom is a common sanitation standard used in all fifty states

The open-air urinal is at a heavily trafficked train stop of the SFMTA. A person urinating in the hol

can walk a few yards and board a train with unwashed hands. Such subjects the community to germ

and disease.

52. Ce1iain

San

Francisco officials attempt to justify the open-air urination hole

above

th

sewer by pointing to other countries that have different - and indeed lower - expectations for hygie

13 than the United States. The trajectory for American society is to take reasonable steps to increase

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sanitation and cleanliness. Indeed in California instruction on the impottance of hand washing is p

of school curriculum. Health Education Standards

or

California Public Schools: Kindergarten

Through Grade Twelve Standards 1.1.P and

7

2.P. Moreover the concept

of hand

washing -

including after use of the restroom - is routinely taught in preschool in this country. For most home

children

are taught

basic sanitation

by

their parents before they are old

enough

to enter

such

schools

53.

Put simply the open hole place for urination is inconsistent with public health policy

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relation to hygiene.

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54.

Tax dollars have been and are being spent by the City and County of San Francisco

and at the direction

of

the Recreation

and

Parks General Manager

on

the above-described activities

which are against public policy relative to health and hygiene.

55. Defendants hav

e utilized employees of the City and County

of

San Francisco includi

the Recreation

and

Parks Department in can-ying out the installation and continued maintenance of t

pissoir. Such is against public policy.

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56. The expenditure of taxpayer funds for the acts described above is an illegal expenditu

of, waste of,

or

injury to the estate, funds,

or

other property of the City and County of San Francisco

Thus Petitioners bring this action under

CCP

§526a to obtain a

judgment

to restrain and

prevent

the

illegal expenditure of, waste of,

or

injury to,

the

estate, funds,

or

other property

of

the City

and

Coun

of San Francisco.

57.

Absent rel ief from this Court, Defendants will continue to engage

in

conduct in

contravention to public health policy.

58.

Plaintiffs

make

this request for injunctive relief based upon their standing

as

taxpaye

r

pursuant

to

CCP

§526a.

59.

In addition, there is a disagreement between the parties as to whether open-airp;ssoir

are against public policy relative to heal th and hygiene. Defendants believe that use

of

open-air

pissoirs which entail public urination without amenities for washing hands is not against public polic

related to health and hygiene. Plaintiffs disagree.

60. Plaintiffs are informed and believe and thereon allege that Defendants will further spe

tax dollars

on

the installment

and

maintenance

of

other

pissoirs

within the jurisdiction

of

the City

an

County of San Francisco. Absent declaratory relief from this Court, Defendants wi

ll

continue to


61.


FOURTH CAUSE OF ACTION

Violation Of Public Policy - Title II

of

the Americans with Disabilities Act

of

1990

42 U.S.C. § 12101 t seq

62 .

Title II

of

the

ADA

provides in pe11inent pal1: [N]o qualified individual with a

disability shall, by reason

of

such disability, be excluded from participation in or be denied the benef

of the services, programs, or activities of a public entity,

or

be subjected to discrimination by any su

entity. 42 U.S.C.

§

12132.

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63. At all times relevant to this action, the Recreation and Parks Department of the City a

County of San Francisco was and is a public entit

y

within the meaning of Title II

of

the ADA and

provides a pedestrian right of way program, service, or activity to the general public.

64. Defendants are mandated to operate

each

service, program, or act ivity

so

that, when

viewed in its entirety, it is readily accessible to and useable by individuals with disabilities. 28 C.F.R

35.150;

see

also 28 C.F.R. § 35.149. This requirement applies to all programs, services, and activities t

a public entity offers, whether

or

not they are carried out in facilities that have been constructed

or

alter

since January 26, 1992. The p sso r was installed after 199

2

65.

The regulations implementing Title II

of

the ADA provide that a public entity must

11

maintain the features of all facilities required to be accessible by the ADA. 28 C.F.R. § 35.133.

12

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66.

Defendants have constructed, altered, or repaired parts of these facilities within the

meaning of the ADAAG and the UFAS, and that Defendants, through its administrative methods,

policies, and practices, have failed to make the Dolores arkp sso r readily accessible to and usable

persons with disabilities as required under federal accessibility standards and guidelines.

67. Since March 15, 2012, Defendants have constructed, altered,

or

repaired pa1ts

of

thes

facilities within the meaning

of

the ADAAG and the UFAS, and that Defendants, through their

administrative methods, policies, and practices, have failed to make such facilities compliant with the

ADAAG and the UFAS as updated in 2010, as required under 28 C.F.R. § 35.15l(c)(5).

68.

The 2010 ADA Standards for Accessible Design (2010 Standards) specify the

requirements for compliance under the above.

69. Section 605 .2 of the 2010 Standards specifies that, Urinals shall be the stall-type or the

wall-hung type with the rim 17 inches (430 mm) maximum above the finish floor or ground. Urinals sha

be

13

1/2 inches (345 mm) deep minimum measured from the outer face of the urinal rim to the back of

the fixture.

70.

Per section 405.2 of the 2010 Standards, Ramp runs shall have a running slope not stee

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than 1:12. t should be noted that In existing sites, buildings, and facilities, ramps shall be permitted t

have running slopes steeper than

1:

12 complying with Table 405.2 where such slopes are necessary due

space limitations. Id However a slope greater than 1 8 is not permitted even under this potential

exception.

Id

71.

Under section 405.8 of the 2010 Standards, Ramp runs with a rise greater than 6 inche

(150 mm) shall have handrails complying with 505.

72 . Additionally, per section 505.3 of the 2010 Standards, Handrails shall be continuous

within the full length of each stair flight or ramp run. Inside handrails on switchback or dogleg stairs an

ramps shall be continuous between fli ghts or rnns.

73.

Plaintiffs are informed, be

li

eve, and thereon allege th

at

Defendants a

nd

their agents a

employees have violated and continue to violate Title of the ADA by fai ling to construct and

maintain the Mission Dolores Pa

rk

pissoir in an accessible manner.

74.

Defendants and their agent

s and employees have violated and continue to violate Title

the ADA by failing to timely respond to and remedy complaints regarding the lack of accessibility of h

Mission Dolores Park

pissoir

75.

Tax dollars have b

ee

n, and are being spent, by the City and County of San Francisco,

19 and at

th

e direction of the Recreation and Parks General Manager on

th

e above-described activities

20 which violate public policy to access of restroom facilities for the disabled

21

22

23

24

25

76.

Defendants have utilized employees of the City and County of San Francisco, includi

the Recreation and Parks Department, in carrying out the installation and continued maintenance of

pissoir Such is

ag

ainst public policy and in violation of Plaintiffs rights.

77.

The expenditure of taxpayer funds for the acts described above is an ille

ga

l expenditu

26

of, waste of, or injury to the estate, funds,

or

other property of the City and County

of

San Francisco

27 Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the

28 illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and Coun

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of San Francisco.

78.

Absent relief from this Court, Defendants will continue to engage in conduct in

contravention to access for citizens with disabilities to restroom facilities.

79. Plaintiffs make this request for injunctive

relief

based

upon

their standing

as

taxpayer

5 pursuant to CCP §526a.

6

7

8

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14

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80.

In addition, there is a disagreement between the parties as to whether open-air pissoir

violate disability rights and are against public policy to provide access to restroom facilities for pers

with disabilities. Defendants believe that pissoirs are consistent with access to restroom facilities fo

persons with disabilities. Plaintiffs disagree .

81. Plaintiffs

are

informed and believe and thereon allege that Defendants

will fmther

spe

tax dollars on the installment and maintenance of other pissoirs within the jurisdiction of the City an

County

of

San Francisco. Absent declaratory

relief

from this Court, Defendants will continue to


82. As such, Plaintiffs request declaratmy relief based upon their standing as taxpayers.

FIFTH

CAUSE

OF ACTION

Violation

Of

Public Policy - Section 504 of

the

Rehabilitation

Act

of 1973

29 U.S.C.

§

794

t

seq

83. Section 504 of the Rehabilitation Act of 1973 provides in pe11inent pait: [N]o otherwis

qualified individual with a disability shall, solely by reason of her or his disability, be excluded from

pmticipation in, be denied the benefits of, or be subjected to discrimination under any program

or

activi

receiving federal financial assistance .

29 U.S.C. § 794(a).

84.

Plaintiffs are otherwise qualified to participate in

the

services, programs,

or

activities t

are provided by the Recreation and Parks Department of the city and County of San Francisco at

Dolores Park.

ee

29 U.S.C. § 794(b).

85.

The Recreation and Parks Depaitment of the City and County of San Francisco is a

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direct recipient

of

federal financial assistance sufficient to invoke the coverage

of

Section 504, and has

received such federal financia l assistance at all times relevant to the claims asserted in this Complaint.

86.

Defendants and their agents and employees have violated and continue to violate the

Rehabilitation Act and the regulations promulgated thereunder by excluding the persons with disabilitie

from participation in, denying persons with disabilities the benefits

of

, and subjecting persons with

disabilities, based solely by reason of their disabi lities to, discrimination in the benefits and services

offered by the Recreation and Parks Department

of

the City and County

of

San Francisco at Mission

Dolores Park and for the reasons set forth above.

87.

s

a direct and proximate result

of

the aforementioned acts, disabled citizens

of San

Francisco, including persons that the San Francisco Chinese Christian Union and its members care f

suffered and continue to suffer difficulty, hardship , isolation, and segregation due to Defendants

failure to remediate the accessibility at the

pissoir

in Dolores Park. These failures have denied

Plaintiffs the full , equal, and meaningful access to the

pissoir

that Section 504 requires.

88. Because Defendants discriminatory conduct presents a real and immediate threat

of

cunent

and

con

tinuing violations, declarato1y and injunctive

relief

are appropriate remedies.

89.

Tax dollars have been, and are being spent, by the City and County

of

San Francisco ,

19 and at the direction of the Recreation and Parks General Manager on the above-described activities

20 which violate the rights of residents of San Francisco with disabilities.

21

22

23

24

25

90.

Defendants have utilized employees of the City and County

of

San Francisco, includi

the Recreation and Parks Department, in

canying

out the installation and continued maintenance

of

t

pissoir Such is against public policy.

91.

The expenditure

of

taxpayer funds for the acts described above is an illegal expenditu

26

of, waste of, or injury to the estate, funds, or other property

of

the City and County of San Francisco.

27 Thus, Plaintiffs bring this action under CCP §526a to obtain a judgment to restrain and prevent the

28 illegal expenditure of, waste of,

or

injury to, the estate, funds,

or

other property

of

the City

and

Coun

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of San

Francisco.

92. Plaintiffs

are informed and

believe and

thereon

allege that Defendants will further

spe

3

tax

dollars on the installment and

maintenance

of other p sso rs

within

the jurisdiction of the

City

an

4

County

of

San Francisco.

Absent relief from

this Court, Defendants will continue

to engage

in

cond

5 in contravention to access

for

citizen with disabilities

to

restroom facilities.

6

7

8

9

1

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12

13

14

15

16

17

18

19

2

93. Plaintiffs

make

this request for injunctive

relief based upon

their standing as taxpayer

pursuant to

CCP

§526a.

94.

In

addition, there is a disagreement between the parties

as

to

whether

open-air

p sso r

violate disability rights and

are against

public policy to provide access

to

restroom facilities for perso

with

disabilities. Defendants believe that

p sso rs

are consistent with access

to

restroom facilities fo

persons with disabilities. Plaintiffs disagree.

95.

As

such, Plaintiffs

request

declaratmy

relief

based

upon

their standing as taxpayers.

SIXTH CAUSE OF ACTION

Violation f Public Policy Unruh Civil Rights Act

96. Defendants operates Mission Dolores Park within the jurisd iction of the State of

California and, as such, is obligated

to comply

with

the

provisions of

the Unruh

Act, Cal. Civ.

Code

,

51,

et

seq. ( the Unruh Act ).

97.

The

conduct alleged herein violates

the Unruh

Act, including Cal. Civ.

Code

, § 51,

et

2 1 seq.

22

23

24

25

6

27

98.

The

Unruh Act guarantees, inter alia,

that

persons

with

disabilities

are

entitled to full

equal accommodations, advantages, facilities, privileges, or services in all business establishments o

every

kind whatsoever within

the jurisdiction

of the State of California. The Unruh Act

also

provides

that a violation

of the ADA

is a violation

of the

Unruh Act.

99.

Defendants have violated

the

Unruh

Act

by , inter alia, denying persons

with

disabiliti

28 full and equal accommodations, advantages, facilities, privileges, or services offered by Defendants.

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Defendants have also violated the Unruh Act by violating the ADA, as set fotth above.

100.

Defendants have violated the Unruh Act by, inter alia, failing to operate its services o

nondiscriminatory basis and failing to ensure that persons with disabilities have nondiscriminatory

access to the Mission Dolores Park

pissoir

101. In doing the acts and/or omissions alleged herein, Defendants wrongfully and unlawfu

denied access to its facility to persons with disabilities and acted with knowledge of the effect its

conduct was having on persons with physical disabilities.

I 02.

ax

dollars have been, and are being spent, by the City and County of San Francisco,

and at the direction of the Recreation and Parks General Manager on the above-described activities

which violate the disability rights of Plaintiffs, their members, and the residents of San Francisco.

103. Defendants have utilized employees of he City and County of San Francisco, includi

the Recreation and Parks Department, in carrying out the installation and continued maintenance of t

pissoir Such is against public policy and in violation of Plaintiffs rights.

104. The expenditure of taxpayer funds for the acts described above

is

an illegal expenditu

of

, waste of,

or

injury to the estate, funds,

or

other property

of

the City and County

of

San Francisco.

Thus, Petitioners bring this action under CCP §526a

to

obtain a judgment to restrain and prevent the

illegal expenditure of, waste of, or injury to, the estate, funds, or other property of the City and Coun

of

San Francisco.

I 05. Plaintiffs are informed and believe and thereon allege that Defendants will fmther spe

tax dollars on the installment and maintenance ofother pissoirs within the jurisdiction of the City an

County of San Francisco. Absent relief from this Court, Defendants will continue to engage in condu

in contravention to access for citizens with disabilities to restroom facilities.

106. Plaintiffs make this request for injunctive relief based upon their standing as taxpayer

27 pursuant to CCP §526a.

28

107.

In addition, there is a disagreement between the parties as to whether open-airpissoirs

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violate disability rights and are against public policy to provide access to restroom facilities for perso

with disabilities. Defendants believe that

pissoirs

are consistent with access to restroom facilities fo

persons with disabilities.

Plaintiffs disagree.

SEVENTH CAUSE

OF

ACTION

Violation Of Public Policy - Construction Noncompliant

With Plumbing

Code

108.

A public restroom must meet all California codes and fixture requirements. The

pisso

does not meet such codes and fixture requirements for its intended use. This includes California Hea

and Safety Code Section 17921.4 and sections 402.3 3 and 402.3 .4 of the 2010 California Plumbing

Code.

109. Tax dollars have been and are being spent by the City and Cow1ty

of

San Francisco

and at the direction of the Recreation and Parks General Manager

on

the installation and maintenanc

of the

pissoir

110. Defendants have utilized employees of the City and County of San Franci_co includi

the Recreation and Parks Department in carrying out the installation and continued maintenance of t

pissoir

111 The expenditure of taxpayer funds for the installation and maintenance of restroom

facilities that are noncompliant with California laws related to plumbing is an illegal expenditure of

waste of or injury to the estate funds or other property of the City and

Co

unty of San Francisco.

Thus Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the

illegal expenditure of waste of

or

injury to the estate funds or other property of the City and Coun

of San Francisco.

112. Plaintiffs are informed and believe and thereon allege that Defendants will further spe

26

tax dollars on the installment and maintenance

of

other

pissoirs


of

the City and

27 County

of

San Francisco. Absent rel ief from this Court Defendants will continue to engage in condu

28 in contravention to plumbing codes.

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113. Plaintiffs make this request for injunctive relief based upon their standing as taxpayer


114

In addition, there is a disagreement be tween the pai1ies as to whether open-air

pissoir

are compliant with plumbing codes. Defendants believe that pissoirs

are

consistent

with such

codes,

in the alternative, that the City and County of San Francisco is not required to comply with the law

related to the plumbing codes for a

pissoir

Plaintiffs disagree.

115. As such, Plaintiffs request declaratory relief based upon their standing as taxpayers.

EIGTH C USE OF CTION

Violation

Of

Public

Policy

Enabling Of Public Nuisance

116.

The installation of the

pissoir

creates the conditions for a public nuisance.

117. Enabl ing public urination at the

pissoir

- pai1icularly without amenities for the washin

of hands - is injurious to health.

118.

Enabling public urination a t the

pissoir

promotes conduct which is indecent.

119. Enabling public urinat ion at the

pissoir

is offensive to the senses.

120. Tax dollars have been, and

are

being spent,

by

the City

and County

of

San

Francisco,

and

at

the direction of the Recreation and Parks General Manager on the above-described activities

which create the conditions for a public nuisance.

121.

Defendants have utilized employees of the City and County of San Francisco, includin

the Recreation and Parks Department, in carrying out the installation and continued maintenance of t

pissoir

Such is against public policy.

122.

The

expenditure of axpayer funds for the acts described above is an illegal expenditu

of, waste of, or injury to the estate, funds, or other property of the City and County of San Francisco.

Thus, Petitioners bring this action under CCP §526a to obtain a judgment to restrain and prevent the

illegal expenditure of, waste of, or injury to, the estate, funds, or other property of he City and Coun

of San Francisco.

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123. Absent relief from this Court, Defendants will continue to engage in conduct which

creates the conditions for a public nuisance and is thus against public polic

y

124. Plaintiffs make this request for injunctive reli

ef

based upon their standing as taxpayers


125 . Plaintiffs are informed and believe and thereon allege that Defendants will further spe

tax dollars on the installment and maintenance of other

pissoirs

within the jurisdiction of the City and

County of San Francisco. Absent declaratory relief from this Court, Defendants

wi

ll continue to

maintain the

pissoir

126.

In addition, there is a disagreement between the parties

as to

whether open-air

pissoirs

create the conditions, and enable, a public nuisance as against public policy. Defendants believe that

use

of

open-air

pissoirs

neither creates the conditions for, nor enables, a pub

li

c nuisance. Plaintiffs

disagree.

127.


PR YER

WHEREFORE, Plaintiffs prays

fo

r reliefs as follows:

a

An order, pursuant to CCP §526a, enjoining the continued unlawful and wasteful

expenditure of tax dollars on maintaining, and holding open for use to the public, the

pissoir;

b.

n

order, pursuant to CCP §526a, enjoining future installations and maintenance of

pissoirs


of

the City and County

of

San Francisco;

c. An order, pursuant to CCP §526a, declaring that the

pissoir

violates

pr

ivacy;

d

An order, pursuant to CCP §52

a

, declaring that the installation and maintenance

of

th

pissoir

constitutes unlawful sex-based discrimination;

e

An

order, pursuant to CCP §526a, declaring that the installation and maintenance of th

pissoir

violates public policy related to public health and hygiene;

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f.

n order, pursuant to CCP §526a, declaring that the installation and maintenance of the

p sso r violates public policy related to compliance with California and Federal

Disability Laws;

g

An order, pursuant to CCP §526a, declaring that the

in

stallation and maintenance

of

the

p sso r violates public policy related to the requirement that construction

of

restroom

facilities comply with the Plumbing Code;

h n

order, pursuant to CCP §526a, declaring that the installation and maintenance of the

p sso r

violates public policy by creating a public nuisance;

1. Attorneys fees pursuant to CCP §1021.5 or any other applicable law;

j . Costs;

k. Such other and fmther relief as the court deems just and proper.

Dated: April 12 , 2016

Kevin T. Snider, Attorney for Plaintiffs

PACIFIC JUSTICE INSTITUTE

P.O. Box 276600

Sacramento, C 95827

Tel.: 916) 857-6900

Fax: 916) 857-6902

E-mail: [email protected]

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CM-010

AT

TO RNEY

OR

PARTY MHIOUT

A IOR NEY

Nome, State Bar numbor,

and

a


25/25

SUMMONS

CITACION JUDICIAL)

NOTICE TO DEFENDANT:

AV/SO L DEMANDADO):

City and County

of

San Francisco Philip Alan Ginsburg General

Manager Recreation and Parks Department in his official capacity

YOU ARE BEING SUED BY PLAINTIFF:

LO ESTA DEMANDANDO EL DEMANDANTE):

San Francisco Chinese Christian Union Richard Lam Peggy Lam

Patrick Sullivan Sylvia Terpstra

SUM-1 00

FOR COURT USE ONLY

(SOLO PARA USO

DE

LA CORTE)

_,.

C

;;Q

-

-

.

f 1 \

O

( )

/l

o

c::

0 0

\

v

NOTICE You have been sued. The court may decide against you without your being heard un less you respond within 30 days. Read the information

below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy

served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your

case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts

Online Self-Help Center (www.courtinfo .ca.gov/se/fhelp ), your county law library, or the courthouse nearest you . If you cannot pay the fil ing fee, ask

the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property

may be taken without further warning from the court.

There are other legal requirements. You may want to call

an

attorney right away.

If

you do not know an attorney, you may want to call an attorney

referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate

these nonprofit groups at the Cali fornia Legal Services

Web

site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center

www.courtinfo.ca.

gov

/se/fhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and

costs on

any

settlement

or

arbitration award

of

$10,000

or

more in a civil case . The court's li

en

must be paid before the court will dismiss the case.

1AVISOI Lohan demandado. Si no responde dentro de

30

dias, la corte puede decidir en

su

contra sin escuchar su version. Lea la informaci6n a

continuaci6n.

Tiene 30 DIAS

DE

CALENDARIO despues

de

que le entreguen esta citaci6n y pape/es /ega/es para presentar una respues/a por escrito en es/a

corte y /1acer que se entregue una copia al demandante. Una carta o una llamada telef6nica no lo protegen. Su respues/a por escrito tiene que es/ar

en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formu/ario que usted pueda

usar

para

su

respues/a.

Puede encontrar estos formularios de la corte y mas informaci6n en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la

biblioteca

de

/eyes de su condado

o

en la corte que le quede mas cerca. Si no puede pagar a cuota de presentaci6n, pida

al

secretario

de

la corte

que le de un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder

el

caso por incumplimiento y la corte le

podra quitarsu sue/do, dinero y bienes sin mas advertencia.

Hay

o/ros requisi/os /ega/es. Es recomendab/e que llame a un abogado inmedia/amente. Si no conoce a un abogado, puede llamar a un servicio de

remisi6n a abogados. Si no puede pagar a un abogado,

es

posible que cumpla con los requisitos para obtener servicios /ega/es gratuit

os

de un

programa de servicios legales sin fines de /ucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services,

(www.lawhelpcal ifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en con/ac/o con la corte o el

co/egio de abogados locales. A VISO: Por fey, la corte tiene derecho a rec/amar las cuo/as y os costos exentos por mponer un gravamen sobre

cualquier recuperaci6n de 10,000 6 mas de valor recibida med/ante un acuerdo o una concesi6n de arbitraje en un c

aso

de derecho civil. Tiene que

pagar

el gravamen de la corte antes de que la corte

pueda

desechar el caso.

The name and address

of

the court i

s:

(El nombre y direcci6n de

la

carte es):

San Francisco County Superior

Comt

400 McAllister St.

San Francisco CA 94102-4515

DATE:jApril 2016 l ~ ~ U T Y C ~ Clerk, by P . t \ \ ~ t \ , 1 A N llf

(Fecha Uc u:n (Secretario)

, Deputy

(Adjunto)

For

proof of service

of

his summons, use Proof of Service of Summons (form POS-010).)

(Para prueba de entrega

de

esta citati6n use el formulario Proof of Service of Summons, (POS-010)).

SEAL]

Form Adopted for Mandatory Use

Judi

ci

al Council of C

al

i

fornia

NOTICE

TO THE

PERSON SERVED:

You are served

1 D

as

an individual defendant.

2.

c J

as the person sued under the fictitious name

of

(specify):

3 D

on behalf of (specify):

under: D CCP 416.10 (corporation)

D

CCP 416.20 (defunct corporation)

D

CCP 416.40 (association or partnership)

D

other (specify}:

4. D by personal delivery on (date):

SUMMONS

D

D

D

CCP

416.60 (minor)

CCP 416. 70 (conservatee)

CCP 416.90 (authorized person)

Pa o o f

Codo of Civil Procedu re§§ 4 2.20 4

65

v.

co

urtinfo.ca.gov

San Francisco Chinese Christian Union, et al. v. City and County of San Francisco, et al.; Complaint

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