Class action lawsuit says City of Portland violates ADA law by not keeping sidewalks clear

Davis Wright Tremaine lawyer John DiLorenzo speaks to the media in front of plaintiffs at the press conference in downtown Portland this morning. (Photos: Jonathan Maus/BikePortland)

“The City has failed and continues to fail to maintain its sidewalks clear of debris and tent encampments, which is necessary to make its sidewalks readily accessible to people with mobility disabilities.”

– Tozer (et al) v City of Portland

The City of Portland must clear its sidewalks of tents and campers so that people with disabilities can safely navigate around them. That’s one of several claims for relief made by Portland law firm Davis Wright Tremaine in a class action lawsuit filed Tuesday (read it below).

Today, lead lawyer John DiLorenzo said the 10 plaintiffs named in the suit — all of whom have some form of disability — are “being deprived of city services” because so many of the city’s sidewalks are impassable. Quoting C.E.S. Wood’s, “Good citizens are the riches of the city,” DiLorenzo said he was proud to represent the “good citizens” who are brave enough to come forward and push for their rights.

The lawsuit accuses the City of Portland of being in violation of federal law that requires cities to keep its programs and services, “readily accessible and usable by individuals with disabilities.” The suit doesn’t seek any monetary damages. Instead it asks for several actions: for the City to admit they are in violation of the ADA law; to “clear and maintain all City’s sidewalks from debris and tent encampments”; keep them clear; and provide emergency shelter for anyone impacted by the judgment.

Here’s an excerpt from the intro to the 55-page complaint:

The City has failed and continues to fail to maintain its sidewalks clear of debris and tent encampments, which is necessary to make its sidewalks readily accessible to people with mobility disabilities. Indeed, a substantial number of the City’s sidewalks—particularly those in the City’s busiest business corridors—do not comply with applicable federal statutes and regulations because they are blocked by tent encampments and attendant debris, rendering the sidewalks inaccessible, dangerous, and unsanitary for people with mobility disabilities.

The first person DiLorenzo called to speak at today’s press conference was Vadim Mozyrsky, an administrative law judge with a speciality in disability cases and a former city council candidate (who lost to Rene Gonzalez in a bid to defeat Jo Ann Hardesty)

“I believe this is a momentous day because I think we will have resolution to the heart-wrenching stories of the many disabled people in Portland,” Mozyrsky said.

Both Mozyrsky and DiLorenzo repeatedly said they believe the City has the resources to clear sidewalks, they are just choosing to not take care of them.

According to the complaint (which includes many photos of encampments) the impact of Portland’s many blocked sidewalks are that people with mobility issues and disabilities are put in unsafe situations. Several of them spoke out at the press conference and relayed stories of altercations with homeless people, having to go into the street to avoid a blocked sidewalk, and so on.

The lead plaintiff is 54-year-old Irvington neighborhood resident Tiana Tozer, who was hit by a drunk driver when she was 20. Since then she has had 36 reconstructive surgeries for injuries to her legs that made her unable to walk. Tozer has spent years in physical therapy. “My mobility has been hard-won over and over and over again,” she said today. “The camping that blocks the sidewalks just adds insult to injury.” (Tozer is the same person who was removed from the City of Portland Vision Zero Task Force in 2019 following posts to Twitter where she referred to people as “stoopid” and “idiot”).

Steve Jackson, 47, is legally blind. He takes the bus from his home in northeast to his job downtown. Jackson uses a cane and said he will often hit a tent with it as he tries to navigate the sidewalks. “Then people get mad at me because they think I’m attacking them,” Jackson shared. “But I’m just trying to get to work.”

Several other plaintiffs shared their fears and concerns.

62-year old Barbara Jacobsen lives in Old Town and said, “When I leave my house I feel very scared. I think, ‘Is today the day I get attacked? Or hit by a stray bullet?'”

21-year-old Lorien Welchoff is a student at Pacific Northwest College of Art and lives in the nearby Pearl District. She described how it takes her three hours to clean her mobility scooter when she runs over human feces left on the street by people who live on sidewalks next to campus.

At the end of the press conference, DiLorenzo criticized the City of Portland for being too focused on providing permanent housing for homeless people, as opposed to constructing emergency shelter. “They’re building homes that will cost $450,000 and will take five years to build — at which time many of these people will have perished. That is inhumane.”

This lawsuit comes less than a month since Portland Mayor Ted Wheeler announced an expansion of his homeless emergency declaration that gave him authority to address camps on sidewalks on designated Safe Routes to School routes.


Read the full complaint below (or click here if it’s taking too long to load):

001-ADA-Complaint

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Jay Cee
Jay Cee
25 days ago

Well they ain’t wrong! Camps blocking the sidewalks are very dangerous to people with disabilities. Hope they win and make Portland finally enforce their own laws

14A.50.020 Camping Prohibited on Public Property and Public Rights of Way.City Code SectionA. As used in this Section:
1. “To camp” means to set up, or to remain in or at a campsite, for the purpose of establishing or maintaining a temporary place to live.
2.  “Campsite” means any place where any bedding, sleeping bag, or other sleeping matter, or any stove or fire is placed, established, or maintained, whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof.
B. It is unlawful for any person to camp in or upon any public property or public right of way, unless otherwise specifically authorized by this Code or by declaration by the Mayor in emergency circumstances.
C. The violation of this Section is punishable, upon conviction, by a fine of not more than $100 or by imprisonment for a period not to exceed 30 days or both.

https://www.portland.gov/code/14/a50/020

David Hampsten
25 days ago

Back in 2006 I had a job where among other things I had to read all the current federal schedules on ADA provisions up through that time (the law was passed in 1992). I do remember that sidewalks weren’t actually required, but that ADA users had to have a safe path to pretty much everywhere that is public (and even most private businesses.) Campers aside, I wonder, if a sidewalk is blocked or nonexistant, doesn’t that imply that the street needs to have automobile traffic removed from it, to meet ADA requirements?

Granpa
Granpa
25 days ago
Reply to  David Hampsten

Campers are not an “aside” but the subject of the article. The supposition that cars be removed from travel ways is a red herring.

qqq
qqq
25 days ago
Reply to  David Hampsten

To understand your question–are you thinking something like this?:
–the street is a facility
–the facility must be accessible
–sidewalks must be provided to accommodate people with disabilities that prevent them from driving
–if there’s no sidewalk, the street/facility is therefore not accessible
–since it’s not accessible, you must remove vehicles so the vehicle lanes can be used as the accessible route, rather than be for the exclusive use of only people who can drive.

If that describes your question, it seems valid, at least in the case of say, a downtown street that serves residents, businesses, etc. and connects them to one another and to bus stops, parking lots, etc. Or maybe you could argue that people who cannot drive due to disabilities can still be passengers, but that conflicts with the ADA’s intent to allow independent movement for people with disabilities.

David Hampsten
24 days ago
Reply to  qqq

You are correct.

In general we pay far more to maintain streets than we do sidewalks – we tolerate broken pavement, sandwich boards with adds, diners blocking sidewalks, bike racks with or without bikes, and lots else on the sidewalk, sometimes even parked cars in driveways and elsewhere. But on our streets we demand that certain lanes be totally clear for pass-through car traffic and other lanes for free parking – quite a lot of expensive space really – so if we really do want to create a car-free environment on our city streets, abandoning the sidewalks to campers and other “illegal” users might be the Trojan Horse we need to reclaim our city streets.

maxD
maxD
24 days ago
Reply to  David Hampsten

great perspective, thanks David Hampsten!

Fred
Fred
24 days ago
Reply to  David Hampsten

Many parts of the city outside of the downtown core have no sidewalks at all. Clever people have created a sign: “Our sidewalks are our streets.”

I suppose the city will argue that they have no legal obligation to build sidewalks – that the ROW just needs to be open to everyone, and those wheelchair users can go out into the street with everyone else.

Again, this is how it actually works in the parts of the city that have no sidewalks. You simply take your chances and hope you don’t get hit and killed by a car or truck.

Dave
Dave
24 days ago
Reply to  David Hampsten

I like how you think, sir!

Frank Perillo
Frank Perillo
25 days ago

Portland’s failure to address this early on is absolutely disgusting. Many times I’ve witnessed folks with disabilities forced into dangerous situations because of vagrant activity.

Polly
Polly
24 days ago
Reply to  Frank Perillo

Oh wow so blatant clsssism didn’t take long for the fun to start here!

Jeff
Jeff
25 days ago

Not to mention, finish putting proper ramps on street corners. The city has dragged its feet to the maximum on this one. Two people in my neighborhood have accessibility challenges and are routinely forced into the streets where they must battle it out with cars to simply get to Hawthorne and access services. Now we have a camp that is blocking a wide sidewalk, forcing everyone into the street.

Doug Hecker
Doug Hecker
25 days ago
Reply to  Jeff

I regularly see people using bike lanes because of poor infrastructure. That would be fine but considering in SE we get the bare minimum standards, it isn’t enough for wheelchairs, walkers, and canes. We need more and we need the city to be serious and honest about these issues.

maxD
maxD
24 days ago
Reply to  Doug Hecker

Add joggers to that list- I had a jogger cuss me out for saying “on your left” as I passed him while he jogged down the center of the bike lane on NW Front (empty sidewalk , BTW)

Sigma
Sigma
25 days ago
Reply to  Jeff

The city was sued a few years ago over this, and lost. The rate at which ramps are being replaced has greatly increased in the last year or so, and it you haven’t noticed it yet, you will. The timeline to do the entire city went from many, many decades to to something like 10 years. ADA lawsuits are no joke.

SolarEclipse
SolarEclipse
25 days ago
Reply to  Sigma

Also, great fun is to watch how many times the City has to re-do the ramps. In my neighborhood they are on try #3. So far that’s lasted the longest so hopefully they’ll be good in the long run.

steve scarich
steve scarich
24 days ago
Reply to  Sigma

Yes…activists sued the City of Bend a couple of decades ago, and won…The City has spent millions of dollars to put in ramps all over the town. They almost never get used of course, because very few people of any sort actually walk any distance here. I know, because I walk all over, sometimes 6 or 7 miles a day, and rarely encounter other pedestrians. Of course, they walk Downtown and at the Malls, but that is about it. By ignoring activists’ complaints, cities end up spend many times as much money as they would have, if they just responded reasonably in the first place. I notice in other coverage of this issue the obvious collision of the ADA issue with the ban on blanket (pun intended) sweeps of sidewalks in Federal rulings.

Doug Hecker
Doug Hecker
25 days ago

As someone who directly serves disabled folks in the city, I can wholeheartedly say that my clients suffer more because they are unable to get around as easy as possible compared to people who do not have disabilities. Yes, this is a housing issue and the city seems to think the brick and mortar speed is good enough. It clearly isn’t. What’s best? The city acts like the citizens should be able to share what they think would be a better idea when the city already pays consultants and studies for the actual answers. Meanwhile, a snail moves faster, oh, and with actual conviction.

Karstan
Karstan
25 days ago

Thanks for your reporting, Jonathan! Several good points were made here, imho. It’s incredibly inhumane for our government to not provide safe routes for folks with disabilities, and I’m glad someone is raising the issue publicly. This city already had issues with ADA compliance (see the curb cuts problem BP has reported on in the not-too-distant past). While I’m fortunate to currently not have these mobility hurdles, it’s something that’s troubled me over the last few years as our housing crisis has worsened and folks have had to take refuge on our streets.

I appreciate that this lawsuit, and the folks involved, appear to indicate that it’s also inhumane that the City (and County/State/Federal gov’t, though they don’t seem to be named) have failed to act with the urgency required during this housing emergency. We’ve wasted so much time/money/energy on criminalizing poverty/addiction/mental health issues, including sweeps, and yet STILL haven’t provided enough safe places for houseless people to sleep. The city has been aware of our burgeoning housing crisis since at least 2009.

THAT said…

‘Is today the day I get attacked? Or hit by a stray bullet?’

is a dogwhistle. I was surprised (but also not surprised if you know what I mean) to see statements like that made at this press conference. I don’t want to minimize legitimate fears or scary experiences folks have had. But statements like this de-legitimize many of their arguments, imho — particularly when viewed in context with certain named plaintiff’s past statements about “personal responsibility.” This suit smells of a political ploy, which is a bummer.

Still, I hope this moves the Council to take more urgent action (and maybe do a little less grandstanding). Seems to me like some folks in power could take a couple bold political chances on creative solutions that could help make sure everyone has access to safe routes as well as housing.

SolarEclipse
SolarEclipse
25 days ago
Reply to  Karstan

62-year old Barbara Jacobsen lives in Old Town and said, “When I leave my house I feel very scared. I think, ‘Is today the day I get attacked? Or hit by a stray bullet?’”

For as often as there is gun fire in Old Town/Chinatown it’s a legitimate concern for those living there. And being attacked . . . though maybe not as prevalent but early this morning there was a loud altercation near the OT/CT Max station. So if one is living in one of the apartments/condos around there what else might you think?

Karstan
Karstan
25 days ago
Reply to  SolarEclipse

What does that have to do with claims made under the ADA?

SolarEclipse
SolarEclipse
24 days ago
Reply to  Karstan

I didn’t say it did. I was just calling out your dismissive statement.

Karstan
Karstan
24 days ago
Reply to  SolarEclipse

So you agree that statement has nothing to do with an ADA claim?

Chris I
Chris I
24 days ago
Reply to  Karstan

You’re right. The ADA doesn’t seem to have any provisions relating to protections against death or injury from our increasing gun violence.

Charley
Charley
25 days ago
Reply to  SolarEclipse

I don’t live in that neighborhood so I’ll take your word that the concern is real. However, Karstan’s point seems to be that airing this concern at this particular event is counterproductive messaging. It may not make a difference to the justice system, creating a perception that legitimate ADA concerns such as these are just a Trojan horse for an anti-homeless campaign, many, many Portland voters will be less supportive. There’s no need to muddy the water here!

Polly
Polly
24 days ago
Reply to  SolarEclipse

Wrong again, this blantant attack on unhoused people using differently abled people as a political pawn gross

SolarEclipse
SolarEclipse
24 days ago
Reply to  Polly

No, it’s an “attack” on people breaking the law. The courts will of course decide and I do hope they win. Maybe then the City/County will get off their duff and start providing temporary/transitional housing instead of the whole “housing first” nonsense. How do both at the same time? I know, can’t possibility do that right?

dwk
dwk
24 days ago
Reply to  Polly

I think being in a wheel chair trumps drug addict rights in the big scheme of things but not on this blog…

John
John
24 days ago
Reply to  Karstan

Great comment.

I like the optimism that this might spur some actual action on housing.
My concern would just be this is used as an excuse to do nothing about housing but more proactively sweep camps, which just causes more harm.

I suppose if they want to do the absolute minimum all they have to do is ensure sidewalks are not totally blocked. That seems plausible but dishearteningly minimum.

Tomas Paella
Tomas Paella
25 days ago

Incredible news for Portlanders. Shameful that we’ve allowed our public facilities to be commandeered for private use.

Let’s hope today is the day the Portland starts getting better, instead of continuing to get worse.

Middle of the Road Guy
Middle of the Road Guy
24 days ago
Reply to  Tomas Paella

That’s a point I make often with people. And how will the pace of improvement compare to the pace of decline? It !ight take 10+ years to dig out from current situations.

I for sure will not stay in a declining town that might eventually get better (or not).

Polly
Polly
24 days ago
Reply to  Tomas Paella

“Commandeered for private use” are you efffing serious right now???

You mean unhoused folx making sure there needs are met because the city won’t get its act together quick enough or on a broad enough scale.

Way to be a stooge in a game of political power.

dwk
dwk
24 days ago
Reply to  Polly

Why does anyone have to make sure their needs are met?
Do you invite the fox to your house for dinner?
Just asking for a friend.

RipCityBassWorks
RipCityBassWorks
25 days ago

“to “clear and maintain all City’s sidewalks from debris and tent encampments”; keep them clear; and provide emergency shelter for anyone impacted by the judgment.”

This is reasonable. The street camping experiment has drastically failed, time to replace it with a system of shelters and sanctioned and maintained campsites.

Middle of the Road Guy
Middle of the Road Guy
24 days ago

But then I won’t be able to bring my dog, bike collection and drugs there.

Ernest Fitzgerald
Ernest Fitzgerald
25 days ago

Seems like it was just yesterday that y’all were gung ho for the homeless. Now, not so much. It’s always amusing to me to see the befuddlement created by clashing ideologies, whether it’s on the Left or Right.

Charley
Charley
24 days ago

I’m sad to see our housing crisis come to this, but it’s about time. As a city, we must recognize that deciding to build only gold-standard supportive housing for people who need help is actually also a decision in favor of unsafe, unsupported camping.

I’ve heard so much about how we have to get the housing part right, and get people housed well, instead of housed in shelters. But because of the cost and construction delays of these higher-quality housing options, people are literally dying on the streets as units come online s l o w l y.

I’m strongly in favor of the Safe Rest Villages, and I’m so disappointed it’s taken so long to get any of them up and running. Every neighborhood should have a bunch of these!

Mike Quigley
Mike Quigley
24 days ago
Reply to  Charley

Especially true as homelessness is set to explode in the future.

soren
soren
24 days ago
Reply to  Mike Quigley

The political mainstream in Portland is unwilling to acknowledge that the “free” market financialization of housing is a major cause of houselessness because many of them benefit from housing-based rent extraction.

Charley
Charley
24 days ago
Reply to  soren

I’ve been pleasantly surprised to see pro-housing steps from the City Council and State legislature in recent years. So I’m not sure that it’s true that “The political mainstream in Portland is unwilling to acknowledge that the “free” market financialization of housing is a major cause of houselessness.

It would seem from these regulatory changes that there is some recognition among our political leaders that local rent-seeking (or simply anti-apartment) activists have had a negative effect on affordability.

I hope these efforts continue, and I hope they improve the situation.

soren
soren
24 days ago
Reply to  Charley

Yeah those several dozen ADUs and some milquetoast “market-based” parking regulation (that does not even ban a single f*cking space) is gunna fix our housing crisis.

Wake me up when so-called YIMBYs start advocating for legalizing genuine missing middle housing: 6-12 story apartment blocks.

dwk
dwk
24 days ago
Reply to  soren

It’s called Oxy/Fentynal/meth and you damn well know it Soren.
Has nothing to do with housing.

Middle of the Road Guy
Middle of the Road Guy
24 days ago

City of Portland:. “What!? This is the first we are hearing of such issues!”

bjorn
bjorn
24 days ago

been saying for awhile that there is a huge difference between allowing camping near a MUP and allowing it to be completely blocked like the I-205 path north of killingsworth has frequently been the last couple years. I am not sure I agree with the political motivations of these folks but they aren’t wrong, people should not be able to take over sidewalk and MUP’s in a way that someone in a wheelchair can not get through and if the city is going to allow camping they should select better sites than directly on MUP’s and sidewalks to allow it.

JaredO
JaredO
24 days ago

John DiLorenzo is the guy who sued the state for $1 billion for caring about clean water and not cutting down enough trees. He’s big business’ lawyer, arguing for agriculture pollution as a right, arguing against penalties for taking housing away from Section 8, for huge handouts to big land owners through our property tax caps, etc. etc.

Remember who he is.
<a href=”https://www.dwt.com/people/d/dilorenzo-jr-john-a”>He lays it all out here</a>.

He also explored running for Governor.

As others have noted, the main cause of limited access for people with disabilities is the huge amount of right-of-way dedicated to cars, both moving and parked.

Alex B.
Alex B.
24 days ago
Reply to  JaredO

Wow, thanks for that link. I feel like DiLorenzo’s bio is useful context for the article. I, like other commenters, smelled the radical right behind this lawsuit & it seems our noses didn’t fail us.

That said, I also agree with the nominal goal of the lawsuit. It’s sad that the establishment left in Portland is afraid to call camping on public right-of-way what it is: privatization of public resources. That doesn’t mean that public land shouldn’t be shared with people who want to use it for camping, but it needs to be temporary, regulated, & compete with other public needs (such as transportation). Letting people privatize the sidewalks with their camping gear doesn’t meet any of those tests.

Fred
Fred
24 days ago

I’ve talked with many frustrated employees at CoP and Metro who know that local gov’t could solve this problem, but they are completely hamstrung by the Homeless Industrial Complex – people and organizations that are invested in maintaining the status quo and who have the ear of local politicians.

When people really WANT to solve a problem, it will be solved. When they do NOT want to solve a problem, it won’t be. That’s the real issue in Portland.

JP
JP
23 days ago
Reply to  Fred

I would like to learn more about this. Can you go into more detail?

Tom
Tom
24 days ago

I wonder if rentable scooters, bikes and restaurant patios are also mentioned? As a pedestrian without disabilities I am often impeded these.

PTB
PTB
24 days ago

Now do sidewalk parkers.

Granpa
Granpa
24 days ago
Reply to  PTB

Parkour?

PTB
PTB
24 days ago
Reply to  Granpa

I can’t jump like I used to. I can’t touch a rim any longer (talking basketball here). Getting older is cruel.

Parked cars. Sidewalk parkers. Cars parked on sidewalks.

Robert Wallis
Robert Wallis
24 days ago

I seriously doubt if the lawsuit has much legal foundation. Fact is that the homeless are hurting the businesses and property owners who have a lot of power in City Hall. The lawsuit is the perfect excuse to solve an economic problem amongst some influential people. I say it does not have much legal foundation because Portland, like every other city in America, has tons of non-compliant sidewalks WITHOUT the homeless encampments. How can one possibly make a sound legal claim about homeless camps making sidewalks non-ADA-compliant, when so many sidewalks are already non-compliant due to tree roots, settlement, deterioration, etc? Those same business interests are driving the City to support a dumb-ass I-5 expansion project. Rock the money boat and you get tossed overboard.

SD
SD
24 days ago

Whether it’s ADA access, Safe Routes to Schools or bike racks the goal is the same: remove homeless people from sight. If the people behind these efforts were serious about the civil issues they are co-opting, we would see an even-handed effort that impacts everyone who obstructs public spaces or makes them feel dangerous.