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A federal appeals court has overturned a lower court ruling and held a statute of limitations does not apply to litigation filed against a Colorado city charged with violations of the Americans with Disabilities Act and the Rehabilitation Act.
The question in the case is whether a public entity violates the ADA and the Rehabilitation Act “only when it initially constructs or creates a non-compliant service or program,” or violates these laws repeatedly “until it affirmatively acts to remedy” the situation, asks the 10th U.S. Circuit Court of Appeals in Denver in Wednesday’s ruling in Stephen Hamer v. City of Trinidad.
“We hold that a public entity violates” these laws “each day that it fails to remedy a non-compliant service program or activity,” said the ruling.
The litigation was filed by Stephen Hamer, who is confined to a motorized wheelchair, and contends many of Trinidad’s sidewalks do not comply with the ADA and the Rehabilitation Act, according to the ruling.
Mr. Hamer filed suit against the city in U.S. District Court in Denver, which granted the city summary judgment in the case on statute of limitations grounds.
The court said the “repeated violation doctrine” which “divides what might otherwise represent a single time-barred cause of action into separate claims, at least one of which accrues within the limitations period prior to suit” applies.
“A qualified individual with a disability is excluded” from participation in a service, program or activity “each day that she is deterred from utilizing it, due to its noncompliance,” said the ruling. “She stops suffering a daily injury only when the public entity remedies the non-compliant service program, or activity or when she no longer evinces an intent to utilize it,” said the ruling.
The ADA and Rehabilitation Act “clearly and unambiguously requires us to acknowledge they are subject to the repeated violations doctrine,” said the ruling, in overturning the lower court’s decision and remanding the case for further proceedings.
Attorneys in the case could not immediately be reached for comment.
A federal appeals court has affirmed a lower court ruling that held BNSF Railway Co. violated the Americans with Disabilities Act by requiring a job applicant who had had back problems to get an MRI at his own expense, in a case filed by the U.S. Equal Employment Opportunity Commission.