Disabled Access Appeals Board Meeting

MINUTES DISABLED ACCESS APPEALS BOARD MEETING Friday, December 8, 2017 1:30 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Stocker, Villalpando, Stevens Absent: Castaneda Board Staff ADA Coordinator/Chief of Inspection Services/Building Official John Kuehl, Present: Assistant City Attorney Karin Salameh, Recording Secretary Alicia Salas CALL TO ORDER The hearing was called to order at: 1:32 pm CONSENT ITEMS Approval of Minutes 1. April 7, 2017 Motion to Approve Minutes of April 07, 2016 made by Board member Hawkins and seconded by Board member Villalpando. AYES: 4 BOARD MEMBERS: Hawkins, Stocker, Villalpando, Stevens NOES: 0 BOARD MEMBERS: None ABSENT: 1 BOARD MEMBERS: Castaneda ABSTAIN: 0 BOARD MEMBERS: None RECUSED: 0 BOARD MEMBERS: None PUBLIC COMMENTS None. DISABLED ACCESS PUBLIC HEARING 2. Consider Appeal of the City of Monterey's Response to Nina Beety's Grievance/Request for Reasonable Accommodation Relating to Attending the November 14, 2017 Public Outreach and the November 28, 2017 Planning Commission Meetings. ACTION: The Board denies the appeal and upholds the ADA Coordinator’s decision and finds that he did not discriminate or exclude anyone with regards to accommodations for the November 14, 2017 Public Outreach and the November 28 2017 Planning Commission meetings. Nina Beety, appellant, provided copies of her Requests for Reasonable Accommodations to all members of the Board. Ms. Beety said the City of Monterey is blocking her full and equal access that she previously enjoyed. She said the City is blocking her right to free speech and her right to freely associate with her peers. Ms. Beety stated she is disabled by Electromagnetic Sensitivity and says she experiences disabling health effects from it. Ms. Beety continued on to say the City of Monterey has implemented a separate but unequal accommodation policy which segregates her from her colleagues and denies her right to free speech. Ms. Betty said she is asking for reasonable and meaningful accommodations that will help reduce exposure, not to eliminate exposure completely. She said she has been Disabled Access Appeals Board Minutes Friday, December 8, 2017 discussing this situation with the City for the past 9 years and thinks that a one size fits all solution will not include or pertain to her situation. Board member Hawkins asked Ms. Beety when her unimpeded access ended and why. Ms Beety said she previously enjoyed access to the library before the City installed wireless internet sometime around 2007-2008. She also stated she used to attend meetings in the Council Chambers until wireless was installed around 2012-2013 despite previous conversations with the City regarding her disability. Board member Stocker asked Ms. Beety about the list of options for accommodating people who cannot attend City meetings and what the differences are. Ms. Beety said one list is for someone who is totally disabled from using a building, which she stated she is not and would not apply to her. She said the other list is the first line of accommodations for people who are in her situation. Public comments None. Board Member Comments Chair Stocker asked Assistant City Attorney Karin Salameh to weigh in on what the Board is being asked to legally decide. Ms. Salameh stated the Board’s job is to decide whether the City met the standards for accommodating Ms. Beety’s request. She said the Board could recommend other accommodations that the City did not offer or the Board could direct staff to come back at a later date to revisit the policy from 2014. Ms. Salameh went on to say the Board could not establish a new policy because it was not agendized for the meeting. She said the Board should only focus on Ms. Beety’s appeal, her request for accommodations, and whether the City responded in an appropriate manner to Ms. Beety’s request. Chair Stocker asked how to know the extent of the impact of turning off the WIFI. Ms. Salameh suggested that the Board could direct staff to come back at a later date to give you more information on that if it would be helpful. Board member Hawkins asked if anyone else has asked for accommodations regarding electromagnetic sensitivity. ADA Coordinator Kuehl said Ms. Beety is the only person who has asked for accommodations. Board member Villalpando said he would like to know what other cities are doing. Mr. Villalpando said he thinks the City is trying to reasonably accommodate the requester, but also said he would like to know if other cities are doing something that we are not. Mr. Kuehl said after Ms. Beety’s first or second request for accommodations, the City Clerk at the time put out a question on the listserv to other City Clerks. He said at that time there were no other agencies that were disabling the WIFI. Mr. Kuehl said there were other cities that had requests to have the public silence their cell phones, but not to shut off your cell phones or to put them in airplane mode. Mr. Kuehl said it is not an unusual request to ask the public to silence their cell phones. Chair Stocker said he feels he doesn’t know the extent or impact of shutting off the WIFI during the meeting or if that would complicate the way the hearing is conducted. He also said the City should do all that it could without shutting down the government. Chair Stocker asked Ms. Salameh if the Board could reconvene to a later date to find out the full ramifications of shutting down the WIFI. 2 Disabled Access Appeals Board Minutes Friday, December 8, 2017 Ms. Salameh said the City does not have the legal ability to compel individuals to turn off their cell phones, WIFI or otherwise. Board member Villalpando said from a legal standpoint you cannot ask someone to not use their phones as some individuals may be doing research. Ms. Salameh agreed with Board member Villalpando and added there is a right to record the meeting and disseminate it. Board member Stevens said he would like to hear more about what other cities, the State government and the Federal government are doing with regards to electromagnetic sensitivity. ADA Coordinator Kuehl said he thought the Board would like to explore more options and come back to review the policy from 2014. Ms. Salameh said the Board needs to decide on this specific case as to whether the City acted reasonably in this circumstance and the other is more of a policy question which could be agendized for another meeting. Board member Hawkins said he reviewed the United States Access Board, (USAB) website and feels that ADA Coordinator Kuehl did exactly what is recommended on the USAB website and said he feels like Mr. Kuehl had done his homework. Chair Stocker said he feels that the City upheld its policy and has followed the lead of the USAB and their recommendations. Board member Hawkins mentioned “arch flash” and how it was an unknown issue until about 25 years ago but has now become known within the last 8 years. Board member Hawkins said he thinks we need to keep up with this issue and try to stay one step ahead. He said this is evolving technology and a one answer solution doesn’t meet the needs forever. Board member Hawkins made a motion to deny the appeal of Nina Beety and uphold the decision of the ADA Coordinator; he said the City offered reasonable accommodations. He also asked staff to bring the issue back in 3 months to have an update on the EMF standards throughout the City, what effects turning off the WIFI during a meeting/hearing, and how it could impact members of the public. Board member Villalpando said he felt, and wanted to go on the record, that ADA Coordinator John Kuehl did not discriminate or exclude in any way and seconds the motion made by Board member Hawkins. Ms. Salameh clarified that the Board should add the sentence that the ADA Coordinator did not discriminate in his actions to their current motion. Board members Hawkins made a motion to amend his first motion and added, “There was no discrimination based on the actions of the ADA Coordinator.” Board member Villalpando seconds the new motion. AYES: 4 BOARD MEMBERS: Hawkins, Stocker, Villalpando, Stevens NOES: 0 BOARD MEMBERS: None ABSENT: 1 BOARD MEMBERS: Castaneda ABSTAIN: 0 BOARD MEMBERS: None RECUSED: 0 BOARD MEMBERS: None 3 Disabled Access Appeals Board Minutes Friday, December 8, 2017 BOARD MEMBER COMMENTS Chair Stocker said thank you to Board member Villalpando for his service and commitment to the Disabled Access Appeals Board. Board member Hawkins brought up parking on Alvarado and thinks the Board should continue to look at ADA parking for Downtown. He said he would like to see where the City is now and how are they are proceeding with a plan for ADA parking. Board member Hawkins said he would like to see the available ADA parking spots and how many businesses they serving. He said he would like the issue brought back in 5 months. ADA COORDINATOR REPORT ADA Coordinator John Kuehl said thank you to retiring Board member John Villalpando for his years of service to the Board. He also thanked the rest of the Board for their time and service as well. ADJOURNMENT The meeting was adjourned at 3:00 pm Respectfully Submitted, Approved, Alicia Salas David Stocker Recording Secretary Chair 4