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 Fontana, California. 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’s Civic Auditorium was not accessible to persons with mobility impairments.
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:
- 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, 28C.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 Library’s accessible services, activities, and facilities, 28 C.F.R. § 35.163(a);
- 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:
- Environmental Center
- Metrolink Station
- Koehler Park
- McDermont Sports Complex
- Heritage Pool Complex
- Hunter’s Ridge Park
- San Sevaine Park
- Rozena Park
- Public Service Administration Building
- City Hall
- East Annex - Engineering Department
- Veteran’s Park West
- Miller Park Community Center
The Department’s program access review covered those of the City’s programs, services, and activities that operate in the following facilities:
- City Hall
- Police Department
- Recreational Services
- Civic Auditorium
- Code Enforcement - Community Improvement
- Economic Development
- Josephine Knopf Senior Center
- Cypress Community Center
- Seville Park
- Jessie Turner Community Center
- North Fontana Park
- Dorothy Grant Headstart Center
- Veteran’s Park
- Teen Center
- Bill Martin Park (East)
- South Ridge Park
- Don Day Community Center
- Mary Vagle Nature Center
The Department reviewed the City’s policies and procedures regarding 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 Fontana, California.
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.”
NOTIFICATION
13. 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.
14. Within three months of the effective date of this Agreement, and on yearly anniversaries of that date until the Agreement 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.
GENERAL EFFECTIVE COMMUNICATION PROVISIONS
15. Within six 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 California Relay Service to make and receive calls.
LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION
17. Within six months of the effective date of this Agreement, the City will adapt for its own use and implement the City of Fontana’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 Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment D].
18. Within six 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 six 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.
EMERGENCY MANAGEMENT PROCEDURES AND POLICIES
20. If the City contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the City will ensure that the other entity complies with the following provisions on its behalf.
21. Within six months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).
22. Within six months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others. Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification. If the City adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability. Whether or not a registry is used, the City plan should address accessible transportation needs for persons with disabilities.
23. Within six months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster. The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.
24. Within six months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that at least one emergency shelter has a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice). Such shelter(s) will be made available to persons whose disabilities require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration. The written procedures will include a plan for notifying persons of the location of such shelter(s).
25. Within six months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters. The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals.
26. Some of the of the City’s emergency shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA. This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.
27. If the City provides temporary housing during or after an emergency, then, within three months of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that it has identified temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.
PHYSICAL CHANGES TO FACILITIES
28. The elements or features of the City’s facilities that do not comply with the Standards, including those listed in Attachments F, G, and H, prevent some 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.
29. This Agreement shall not be contrued as an admission of liability or discrimintation.
30. The City will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
31. Within six 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 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 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.
MISCELLANEOUS PROVISIONS
35. 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.
36. 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).
37. Within nine 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.
38. Within eighteen months 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. This Agreement will remain in effect for three years.
46. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.
47. The effective date of this Agreement is the date of the last signature below.
| For the City of Fontana: |
For the United States |
By: _____________________________
KENNETH R. HUNT, City Manager
|
Bradley J. Schlozman,
Acting Assistant Attorney General
Civil Rights Division
By: _____________________________
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
NAOMI MILTON, Supervisory Attorney
JOSH MENDELSOHN, Supervisory Attorney
AMELIA M. EDUARDO, Investigator
THOMAS FODOR, Architect
LINDA GARRETT, Accessibility Specialist
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
|
______________
Date |
______8/30/05_________
Date |
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