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Sell v. New Jersey Transit Corp.

March 19, 1997


On appeal from a Final Agency Action of New Jersey Transit Corporation.

Approved for Publication March 21, 1997.

Before Judges Michels, Kleiner, and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by


Petitioner Gerald J. Sell appeals from a final administrative decision of the New Jersey Transit Corporation (NJT) dated December 26, 1995, denying him eligibility for Access Link paratransit services.

Petitioner is a thirty-eight-year-old, mentally retarded man with a full scale I.Q. of 66. He lives in a trailer park in Williamstown and is a sheltered workshop employee at the Abilities Center in Westville, as he is incapable of "competitive employment." The Abilities Center's principal purpose is "to provide individuals with disabilities with vocational training in order that each individual may successfully develop and ultimately attain a realistic vocational goal in the community." NJT is a governmental agency, created by the New Jersey Public Transportation Act, N.J.S.A. 27:25-1 to -34.

Under the Americans With Disabilities Act (ADA) and regulations promulgated by the United States Department of Transportation (USDOT), each state must provide transportation to individuals with disabilities who would otherwise not be able to use public transportation. See 42 U.S.C.A. § 12143(a). NJT created "Access Link" paratransit bus service as a way of meeting the requirements of the ADA. Access Link is curb-to-curb bus service for qualifying disabled people. Following USDOT regulations, NJT created a formal process for determining an applicant's eligibility for Access Link service. See 49 C.F.R. § 37.125. NJT's application procedure also includes an appellate process for those applicants who seek to challenge the agency's determination of their status. See 49 C.F.R. § 37.125(g).

Petitioner applied for Access Link service in March of 1994. Three disabilities were listed on his application: colitis, learning disability, and allergies. According to the application, the colitis inhibited his ability to walk long distances; the learning disability made it difficult for him to identify consistently his place of destination, and the allergies made it difficult to be outdoors for extended periods of time in the spring. According to the application, all of these conditions were permanent.

Also, according to the application, which was apparently filled out by someone at the Abilities Center, petitioner was able to ride NJT's regular buses and did so regularly on excursions to the Deptford Mall, the Echelon Mall, the Moorestown Mall, the Cherry Hill Mall, a friend's house in Cherry Hill, and Pennsauken. Petitioner requested Access Link service only for transportation to the Abilities Center in Westville. Petitioner's application was supported by a "medical verification," signed by his gastroenterologist, verifying his colitis and a "medical verification" signed by his family physician without other medical diagnostic information. Petitioner's mental retardation was verified by his prior receipt of services provided by the New Jersey Division of Developmental Disabilities.

After receiving petitioner's application, NJT conducted a site inspection, examining the route that petitioner would need to use in order to reach the regular bus stop that would provide transportation to the sheltered workshop. The site inspector concluded that the walking distance was too far and the route too dangerous for petitioner to use on a daily basis. On April 28, 1994, NJT informed petitioner that he was "conditionally eligible" to use the Access Link. The notification letter provided in part:

You are eligible to use Access Link only for trips which involve a dangerous path of travel between the bus stop and your origin and our your [sic] destination. Such a path of travel might be walking along busy highway where no sidewalk is available. You have acknowledged in the eligibility application that you are able to use the transit bus on all your trips except the trip to the Abilities Center located in Westville, NJ.

The official classification of your eligibility is Condition III eligibility, in situations involving a dangerous path of travel, therefore, you are eligible to use Access Link to travel to and from your home to the Abilities Center in Westville, New Jersey.

Petitioner's conditional eligibility was to expire on April 20, 1995. *fn1

On August 30, 1995, petitioner filed a second application for Access Link services. In this application, petitioner's disability is listed as mental retardation/schizophrenic disorder. In this application, petitioner requested Access Link service five times a week to the Abilities Center as well as four additional trips per week for recreational and religious purposes. Petitioner was interviewed by someone at NJT, but he apparently gave the interviewer unresponsive answers and denied ever using regular bus services, an answer at variance with his initial application. Included with his second application was a psychological evaluation of petitioner prepared by a psychologist several years earlier. Although the psychologist recommended that petitioner be permitted to return to the sheltered workshop, the report also stated, in part:

This referral sought a clinical opinion concerning the behaviors of this client as well as an assessment for psychiatric evaluation and the efficacy of counselling. . . . Gerry answered the examiner's questions is short terse responses. He was gaze-avoidant and his speech appeared very pressured. . . . There was a clear sense of . . . some clear impairments in his ability to negotiate his world effectively. . . . After psychiatric evaluation Gerry was to contact me for a counseling appointment. This took several months - Gerry was able to organize himself to take public transportation and arrive at our meeting on time - he projects as a schizoid type with emotional blunting, no close relationships although unlike the schizoid, Gerry expresses a desire for friends and people to do things with although he lacks the social mechanics to actualize this.

Petitioner's application for Access Link was denied by NJT by letter dated September 22, 1995. That letter indicated:

This denial is based on the following information you provided in your ADA paratransit application:

1) In your application you provided a professional report stating that you have successfully taken fixed route bus service independently in the past, thus demonstrating your ability to ride fixed route bus service. Although you may no longer be riding fixed route service, there is no indication ...

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