Settlement Agreement betrween the United States and the City of Durham, North Carolina

BACKGROUND

SCOPE OF THE INVESTIGATION

This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, with the United States Department of Justice (“Department”) against the City of Durham, North Carolina. The complaint was received by the Civil Rights Division of the Department of Justice, under the authority of 28 C.F.R. Part 35, Subpart F. The complainant alleges that the City did not implement a Transition Plan or appoint an ADA Coordinator, and that several City owned facilities constructed after January 26, 1992 do not met ADA Standards.

Because the City receives financial assistance from the Department of Justice, the investigation was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department’s implementing regulation, 28 C.F.R. Part 42, Subpart G. The Department expanded the scope of the investigation to include the City’s compliance with the following title II requirements: -because construction or alterations commenced after January 26, 1992 - must comply with the ADA's new construction or alterations requirements:

• to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department’s title II regulation, 28 C.F.R. § 35.105;
  
  
• to notify applicants, participants, beneficiaries, and other interested persons of their rights and the City’s obligations under title II and the Department’s regulation, 28 C.F.R. § 35.106;
  
  
• to designate a responsible employee to coordinate its efforts to comply with and carry out the City’s ADA responsibilities, 28 C.F.R. § 35.107(a);
  
  
• to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);
  
  
• to operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

• delivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,
  
  
• physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department’s title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.
  

• to ensure that facilities for which construction or alteration was begun after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with 1) the Department’s title II regulation and 2) the Standards or UFAS, 28 C.F.R. § 35.151;
  
  
• to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;
  
  
• to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY’s and computer modems, 28 C.F.R. § 35.162;
  
  
• to provide information for interested persons with disabilities concerning the existence and location of the City’s accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and
  
  
• to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

As part of its compliance review, the Department reviewed the following facilities, which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA’s new construction or alterations requirements:

• GSA Facilities Building
  
  
• Parks and Recreation Office
  
  
• Durham Bulls Athletic Park and Stadium
  
  
• Lyon Park Recreational Center
  
  
• Edison Johnson Aquatic Center
  
  
• Solid Waste Operations Facility
  
  
• City Hall
  
  
• Maplewood Cemetery Office
  
  
• Civic Center
  
  
• Carolina Theater-Civic Center
  
  
• Carolina Cinema-Civic Center
  
  
• Equal Opportunity Equity Assurance Office
  
  
• West Point on the Eno Park
  
  
• Police Patrol- District 1
  
  
• Centre Deck Parking Lot
  
  
• Corcoran Street Deck and Lot
  
  
• Chapel Hill Street Deck and Lot
  
  
• Parking Lot 14
  
  
• Parking Lot 20
  
  
• Parking Lot 29
  
  
• Parking Lot 30
  
  
• Parking Lot 8
  
  
• Parking Lot 4
  
  
• Parking Lot 32

The Department’s program access review covered those of the City’s programs, services, and activities that operate in the following facilities:

• Durham Arts Council Facility
  
  
• Police Headquarters
  
  
• Beechwood Cemetery Office
  
  
• Durham Athletic Park
  
  
• Durham Armory
  
  
• E.D. Mickle Recreation Center
  
  
• Edison Johnson Recreation Center
  
  
• I.R. Holmes Recreation Center
  
  
• W.D. Hill Recreation Center
  
  
• Lake Michie Boating and Fishing Facility
  
  
• Spruce Pine Lodge-Lake Michie
  
  
• Little River Fishing Facility-Lake Michie
  
  
• Boat House-Little River
  
  
• West Point Mill
  
  
• Hillside Park
  
  
• Valley Springs Park
  
  
• Church Street Deck
  
  
• Amtrak Train Station

The Department reviewed the City’s policies and procedures regarding voting, emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.

Finally, the Department reviewed the City Police Department’s policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.

JURISDICTION

1.     The Department is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the complaint in this matter to determine the compliance of the City with title II of the ADA and the Department's implementing title II regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. section 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.

2.     The Department is authorized under 28 C.F.R. Part 42, Subpart G, to investigate the complaint in this matter to determine the City’s compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. sections 42.530, 42.108-110, to suspend or terminate financial assistance to the City provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

3.     The ADA applies to the City because it is a “public entity” as defined by title II. 42 U.S.C. § 12131(1).

4.     The parties to this Agreement are the United States of America and the City of Durham, North Carolina.

5.     In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.

6.     In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled “Implementation and Enforcement.”

ACTIONS TAKEN BY CITY

7.     Prior to the passage of the ADA, the Mayor's Office established the Durham Mayor's Committee of Persons with Disabilities. The Committee of Persons with Disabilities serves as an educational and advocacy group for individuals with disabilities.

8.     During Fiscal Year 1993-94, in order to assure that all of the City of Durham facilities, activities, programs and services were accessible to persons with disabilities, the City's Affirmative Action Office followed up with the City's departments to assure service accessibility was in place, surveyed the City's workforce and invited all persons with disabilities to identify themselves, and coordinated programs for the Mayor's Committee for Disabled Persons.

9.     The City designated an ADA Coordinator. Guillermo C. Rodriguez, RLA, CPRP was appointed ADA Coordinator in September, 2005.

10.     In 1997 the City created the City of Durham Diversity Council, consisting of employees from various City departments. Included amongst activities the Council sponsors are activities related to disability awareness.

11.     The City's Parks and Recreation Department created the Special Populations/Inclusion program which seeks to offer diverse recreational and leisure programs for persons with physical and developmental disabilities. Programs offered include Blind Bowling League, Braille Classes, Adapted Needlecraft, and Winners on Wheels for youth aged 8-18.

REMEDIAL ACTION

NOTIFICATION

12.     Within two months of the effective date of this Agreement, the City will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the City; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings. It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement. Copies will also be provided to any person upon request.

13.     Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the City will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the City’s accessible programs, services, and activities.

GRIEVANCE PROCEDURE

14.     Within three months of the effective date of this Agreement, the City will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings. It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement. Copies will also be provided to any person upon request.

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

15.     Within three months of the effective date of this Agreement, the City will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

16.     The City will take steps to ensure that all appropriate employees are trained and practiced in using the North Carolina Relay Service to make and receive calls.

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

17.     Within three months of the effective date of this Agreement, the City will adapt for its own use and implement the City of Durham’s Police Department’s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C] and distribute to all officers the Guide for Law Enforcement OfJicers men in Contact with People m o are Deaf or Hard of Hearing [Attachment D].

18.     Within three months of the effective date of this Agreement, the City will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its officers or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

19.     Within three months of the effective date of this Agreement, the City will ensure that each police station or substation and each jail or detention facility is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls. Where inmate telephone calls are time-limited, the City will adopt policies permitting inmates who use TTY’s a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.

EMPLOYMENT

20.    Within three months of the effective date of this Agreement, the City will amend its employment policies, as necessary, to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630. At minimum, those policies will provide that the City:

• will not discriminate on the basis of disability in its hiring or employment practices.
  
  
• will not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.
  
  
• will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the City’s business.
  
  
• will maintain any employee’s medical records separate from personnel files and keep them confidential.
  
  
• will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the City’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

21.     If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, the City may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.

SIDEWALKS

22.     Within three months of the effective date of this Agreement, the City will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.

23.     Within three months of the effective date of this Agreement, the City will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992. Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement. Filling a pothole is not considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

24.     Beginning no later than three months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.

25.     Within three months of the effective date of this Agreement, the City will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992. Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.

26.     Beginning no later than three months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.

WEB-BASED SERVICES AND PROGRAMS

27.     Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the City (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities,” which is Attachment E to this Agreement (it is also available at www.ada.gov/websites2.htm).

28.     Within three months of the effective date of this Agreement, and throughout the life of the Agreement, the City will do the following:

Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;



Ensure that all new and modified web pages and content are accessible;



Develop and implement a plan for making existing web content more accessible;



Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and



Periodically (at least annually) enlist disability groups to test its pages for ease of use.

PHYSICAL CHANGES TO FACILITIES

29.     The elements or features of the City’s facilities that do not comply with the Standards, including those listed in Attachments F, G, H, and I, prevent persons with disabilities from fully and equally enjoying the City’s services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.

30.     The City will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

31.     Within three months of the effective date of this Agreement, the City will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.

32.     Newly Constructed Facilities: In order to ensure that the following spaces and elements in City facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment F.

33.     Altered Facilities: In order to ensure that the following spaces and elements in City facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment G.

34.     Program Access in City Existing Facilities: In order to ensure that each of the City’s programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the City will take the actions listed in Attachment H.

PROGRAM MODIFICATIONS

35.     Access to City Programs Housed in Others’ Facilities: In order to ensure that the City’s programs, services, and activities that are the subject of this Agreement and that are operated by the City at facilities owned or controlled by other entities, when viewed in its entirety, are readily accessible to and usable by persons with mobility impairments, the City will take the actions listed in Attachment I.

MISCELLANEOUS PROVISIONS

36.     Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the City will submit written reports to the Department summarizing the actions the City has taken pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.

37.     Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the City will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).

38.     Within six months of the effective date of this Agreement, the City will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. The City will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.

39.     Within one year of the effective date of this Agreement, the City will deliver its training program to all City employees who have direct contact with members of the public. At the end of that period, the City will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.

IMPLEMENTATION AND ENFORCEMENT

40.     If at any time the City desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.

41.     The Department may review compliance with this Agreement at any time. If the Department believes that the City has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the City in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the City, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.

42.     For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the City to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

43.     Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.

44.     This Agreement is a public document. A copy of this document or any information contained in it will be made available to any person by the City or the Department on request.

45.     This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the City’s continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

46.     This Agreement will remain in effect for three years.

47.     The person signing for the City represents that he or she is authorized to bind the City to this Agreement.

48.     The effective date of this Agreement is the date of the last signature below.

For the City of Durham:	For the United States:
By: __________________________ PATRICK W. BAKER, Interim City Manager This instrument has been preaudited in the manner required by the local Government Budject and Fiscal Control Act __________________            9/20/05    FINANCE OFFICER             DATE	R. ALEXANDER ACOSTA, Assistant Attorney General By:_____________________________ JOHN L. WODATCH, Chief JEANINE WORDEN, Deputy Chief MARY LOU MOBLEY, Senior Counsel NAOMI MILTON, Supervisory Attorney CHARLES HARVEY, Investigator MICHELE ANTONIO MALLOZZI, Architect U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Disability Rights Section - NYA Washington, DC 20530
Date:   9/20/05	Date:     September 26, 2005

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