1. 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 Town of Brookline, Massachusetts (Town). 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 Town failed to have a transition plan and failed to provide program access in compliance with the provisions of the ADA.
2. Because the Town receives financial assistance from the Department of Justice, the investigation was also conducted under the authority of § 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.
3. The Department expanded the scope of the investigation to include the Town's compliance with the following Title II requirements:
a. 28 C.F.R. § 35.105, which requires public entities to conduct a self-evaluation of their services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department's Title II regulations;
b. 28 C.F.R. § 35.106, which requires public entities to notify applicants, participants, beneficiaries, and other interested persons of their rights and the Town's obligations under Title II and the Department's regulations;
c. 28 C.F.R. § 35.107(a), which requires public entities to designate a responsible employee to coordinate its efforts to comply and carry out the Town's ADA responsibilities;
d. 28 C.F.R. § 35.107(b), which requires public entities to establish a grievance procedure for resolving complaints of violations of Title II;
e. 28 C.F.R. § 35.150, which requires public entities to operate each of their programs, services, or activities so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities, by:
(1) delivering services, programs, and activities in alternate ways. This includes, for example, redesigning equipment and reassigning services to accessible locations as well as through the use of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,
(2) making physical changes to buildings in accordance with the Department's Title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards) or the Uniform Federal Accessibility Standards (UFAS);
f. 28 C.F.R. § 35.151, which requires public entities to ensure that facilities for which construction or alteration was began after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with the Department's Title II regulation and the Standards or UFAS;
g. 28 C.F.R. § 35.160, which requires public entities 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;
h. 28 C.F.R. § 35.161; which requires public entities to communicate through a teletypewriter (TTY), or other equally effective telecommunications system, with individuals who have hearing or speech impairments;
i. 28 C.F.R. § 35.162; which requires public entities to provide direct access via TTY or computer to telephone emergency services, including 911 services, for persons who use TTY's and computer modems;
j. 28 C.F.R. § 35.163(a), which requires public entities to provide information concerning the existence and location of the Town's accessible services, activities, and facilities; and
k. 28 C.F.R. § 35.163(b), which requires public entities to provide signage at each of its facilities adjacent to all inaccessible entrances, directing users to an accessible entrance or to information about accessible facilities.
4. The Department's review was limited to programs, services, and activities conducted in the following facilities: the Police Station, Health Center, Devotion House, Main Library, Putterham Library, Coolidge Corner Library, Lynch Playground, Brookline Music School, Museum of Transportation, Larz Anderson Skating Rink, Putterham Golf Course, Soule Recreation Center, Brookline High School, Swimming Pool, Physical Education Building, and Town Hall.
5. Construction or alterations on a number of facilities began or are scheduled to begin after January 26, 1992. As a result these facilities must meet the ADA' requirements for new construction and alterations. These facilities include: the Health Center (entrance ramp); Larz Anderson Skating Rink (warming hut); Brookline High School (newly renovated); Main Library (renovations underway); Public Safety Building (renovations underway); Soule Recreation Center (renovations scheduled); Swimming Pool (renovations scheduled).
6. The Department also reviewed the accessibility of eight polling locations: Devotion School, Fire Stations 6 and 7, Morse Apartments, New Lincoln School, Lynch Recreation Center, and Putterham Library. These were determined to be readily accessible to and usable by persons with disabilities with regard to their use as polling facilities.
7. The parties to this Agreement are the United States of America (United States) and the Town of Brookline, Massachusetts. In informal resolution of this matter pursuant to 28 C.F.R. § 35.172, and in order to avoid the burdens and expenses of further investigations and possible litigation, the parties hereby agree as follows:
II. JURISDICTION
8. The ADA applies to the Town because it is a "public entity" as defined by Title II. 42 U.S.C. § 12131(1), 28 C.F.R. § 35.104.
9. 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 Town with Title II of the ADA and the Department's regulation implementing Title II, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing Title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
10. The Department is authorized under 28 C.F.R. Part 42, Subpart G, to investigate the complaint in this matter to determine the Town'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. §§ 42.530, 42.108-110, to suspend or terminate financial assistance provided by the Department of Justice to the Town 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.
III. ACTIONS TAKEN BY THE TOWN
11. The Town informs citizens of their rights and the Town's obligations under Title II through notices posted in its buildings and its publications. The Town has appointed an ADA Coordinator in 1993, established in 1994 a grievance procedure that includes time frames for the filing and resolution of complaints and an appeal process to the Town Administrator or his designee in 1994, and completed a self-evaluation and transition plan in 1996.
12. The Town's Police Department is equipped with a TTY system for emergency communications with persons who [are] hearing or speech impaired. The Town maintains three additional TTY telephone lines for non-emergency communications; one in the Office of the Town's ADA Coordinator; one in the Main Library, and one in the Brookline Adult and Community Education program office. In addition, the Town officially recognizes the Massachusetts Relay Service as one of the means by which it communicates with persons who are hearing or speech impaired. The Town has developed and implemented written procedures to ensure that appropriate employees are proficient in the use of the Massachusetts Relay Service.
13. The Town has addressed its responsibility to provide effective communication with persons who are hearing or speech impaired in the following ways: Town Meetings are held in the Brookline High School Auditorium, which is equipped with an assistive listening system; the Town's Board of Selectmen meetings are available in alternate formats, if necessary; and the Town's ADA Coordinator is prepared to obtain sign language interpreters for Town Programs and to provide materials in alternate formats, if necessary.
14. The Town voluntarily elected to make physical changes to its facilities in order to provide program access. Since 1998, it has allocated at least $50,000 per year specifically for accessibility improvements. For example, the Town removed the steps at the Town Hall and replaced them with a flat accessible route in 1999. Since April 2000, the Town has made all of the modifications appearing in Section F, below.
15. The Town has three TTYs and has recognized the Massachusetts relay service for non-emergency communication with persons who are hearing or speech impaired.
16. The Town has reported to the Department regarding the telecommunications system it has chosen and has submitted its written procedures, the names of employees who have been trained, and a copy of any public notice that it has provided informing people of the availability of the system.
IV. REMEDIAL ACTION
17. The parties to this Agreement are the United States of America and the Town of Brookline, Massachusetts. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties hereby agree as follows:
18. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit with regard to the facilities specifically dealt with herein except as provided in paragraphs 45 and 47 below.
19. The Parties agree that the technical requirements and, where appropriate, the scoping requirements of the Standards are used as a guide for determining whether a program or activity held in an existing facility is "readily accessible to and usable by" persons with disabilities, and for determining what changes are necessary to make this program or activity accessible if it continues to be provided in the existing facility in question. See 28 C.F.R. §§ 35.150(b)(1), 35.151. The Standards appear at 28 C.F.R. Part 36, Appendix A.
A. 9-1-1 SERVICES
20. The Town's Police Department is equipped with a TTY system for emergency communications with persons who [are] hearing or speech impaired. The Town agrees to continue to ensure that incoming emergency TTY calls are answered as quickly as other calls received, that such calls are monitored for timing and accuracy, and that employees are trained and practiced in using a TTY to make and receive emergency calls.
B. TELEPHONE COMMUNICATION
21. Within 90 days of the effective date of this Agreement, the Town will develop and implement written procedures to ensure that appropriate employees are proficient in the use of a TTY and/or relay service through training and test calls, that any TTY's acquired are maintained in working order, and that calls received on any TTY acquired are returned as promptly as those received on voice telephones.
22. Within 90 days of the effective date and for the life of this Agreement, the Town will publicize its TTY numbers on the same basis as its voice numbers, through such means as its Title II public notice, official stationary, business cards, and the public telephone book. If the Town chooses to rely on the Massachusetts telephone relay system alone, that number will be publicized in the same manner, in lieu of any TTY numbers.
C. EFFECTIVE COMMUNICATION
23. The Town has addressed its responsibility to provide effective communication with persons who are hearing or speech impaired in the following ways: Town Meetings are held in the Brookline High School Auditorium, which is equipped with an assistive listening system; the Town's Board of Selectmen meetings are available in alternate formats; and the Town's ADA Coordinator will obtain sign language interpreters for Town Programs and will arrange for the provision of materials in alternate formats, if necessary.
24. Within 180 days of the effective date of this Agreement, the Town will provide the United States with documentation indicating that they have in place the auxiliary aids and services described in Paragraph 23.
25. Within 180 days of the effective date of this Agreement, the Town will provide auxiliary aids in addition to sign language interpreters for individuals with disabilities to ensure effective communications for individuals with disabilities at Town meetings. Such auxiliary aids may include, but are not limited to the provision of closed captioning.
26. Within 180 days of the effective date of this Agreement, the Town will report to the Department on the action it has taken to implement paragraph 25.
D. DEVOTION HOUSE
27. The Town owns Devotion House, a property that is on the National Register of Historic Places and operated by the Brookline Historical Society. The Devotion House has no accessible exterior entrance nor any accessible interior doorways. Within 90 days of the effective date of this Agreement, the Town will report to the Department its plan to provide physical access to the House for individuals with disabilities or to provide alternative methods of achieving program accessibility, such as audio-visual materials.
E. ACCESSIBILITY INFORMATION
28. Many of the Town's facilities have signage at inaccessible entrances directing individuals with disabilities to an accessible entrance. Within 180 days of the effective date of this Agreement, the Town will survey all facilities and install signage at any remaining inaccessible entrances indicating the location of an accessible entrance.
29. Within one year of the effective date of this Agreement, the Town will develop a method for providing information concerning the existence and location of the City's accessible programs, services, and activities and submit its proposal to the Department in writing. The proposal, as approved by the Department, will be implemented no later than 18 months from the effective date of the Agreement. Such approval shall not be unreasonable withheld or delayed.
F. PHYSICAL CHANGES
30. The Town avers that since the Department's April 2000 site investigation it has taken action to correct each of the facilities that the Department found were not accessible to people with disabilities. In each instance where the Town avers that corrective action has already taken place, the Town will, within 90 days of the effective date of this Agreement, provide the Department with documentary evidence that the modifications were made as stated below. Such documentary evidence shall provide visual proof that the modification was completed in accordance with the relevant provisions of the Standards and may include photographs showing measurements and configurations as well as any other evidence the Town believes will prove compliance.
31. If the Department determines, after a review of the evidence provided by the Town, that an action has not taken place as the Town averred, the Department will notify the Town of this finding and the Town will be considered in violation of this Agreement.
In order to ensure that the following facilities, for which new construction commenced after January 26, 1992, are readily accessible to and usable by persons with mobility impairments, the Town has taken or will take the following actions. Those instances where the Town avers that corrective actions were taken after the Department's April 2000 investigation, but before the effective date of this agreement, are set forth in italics.
32. Larz Anderson Warming Hut/Skating Rink
(a) Women's and Men's Toilet Room (applies to both unless otherwise noted)
(1) The rear grab bar in the accessible stall is mounted 7 ½ inches from the side wall. The Town avers that the rear grab bar has been re-mounted so that one end is no more than 6 inches from the side wall. Standards §§ 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(a).
(2) The toilet paper dispenser in the accessible stall is mounted 39 inches from the back wall. The Town avers that the toilet paper dispenser has been re-mounted so that the farthest edge of the toilet paper roll is located no more than 36 inches from the back wall. Standards §§ 4.1.3(11), 4.22.4, 4.17.3 & Fig. 30(d).
(3) The centerline of the water closet is 21 inches from the side wall. The Town avers that the toilet has been remounted so that the centerline is 18 inches from the side wall. Standards §§ 4.1.3(11), 4.22.4, 4.17.3 & Fig. 30(a).
(4) The soap dispenser is mounted over the lavatory; its forward reach control is 26 inches from the face of the lavatory (women's). The town avers that the soap dispenser has been remounted so that it meets applicable forward reach heights and depth. Standards §§ 4.1.3(11), 4.22.7, 4.27.3, 4.2.5 & Fig. 5(b), 4.2.6.
(5) The rim of the urinal is 18 inches above the finish floor. The town avers that the urinal has been replaced with one having an elongated rim that is no more than 17 inches above the finish floor. Standards §§ 4.1.3 (11), 4.22.5, 4.18.2.
(6) The flush controls in the men's and women's toilet rooms are push button flush controls. The town avers that the flush controls have been mounted on the side of the toilet facing the wide or open side of stall. Standards §§ 4.17.2, 4.16.5, 4.2.5 & Fig. 5.
b. Concession Counter
(1) The top of the concession counter is 40 ½ inches above the finish floor. A counter that is at least 36 inches wide and no more than 36 inches high, or an auxiliary counter with a maximum height of 36 inches, or provide equivalent facilitation (e.g., the provision of a folding shelf attached to the main counter). The town avers that they concession counter has been modified so that a portion of the counter at least 36 inches wide is no more than 36 inches above the finish floor. Standards § 7.2(2).
(2) There is a 1 inch change in level at the rear entrance to the concession stand. The town avers that the threshold at the rear entrance has been modified so that the change in level is no greater than ½ inch and beveled with a slope no greater than 1:2. Standards §§ 4.1.3(7)(a), 4.13.8, 4.5.2.
c. Accessible Entrance
(1) The route to the accessible entrance to the small rink is a paved brick path that has deteriorated. Within 30 days of the effective date of this Agreement, the Town will provide an accessible route from the accessible parking area to the accessible entrance that is stable, firm, and slip resistant. Standards §§ 4.1.2(1), 4.3.6, 4.5.1.
(2) There is a change in level at the entrance to the kiddie pavilion and the path is not smooth. The town avers that the threshold has been modified so that the change in level is no greater than ½ inch and beveled with a slope no greater than 1:2 and has a ramp surface that stable, firm and slip-resistant. Standards §§ 4.3.6, 4.5, 4.13.8, 4.5.2.
In order to ensure that the following spaces in Town facilities, for which alterations will commence or have commenced after January 26, 1992, are readily accessible to and usable by individuals with disabilities, the Town has taken or will take the following actions. Those instances where the Town avers that corrective actions were taken after the Department's April 2000 investigation, but before the effective date of this agreement, are set forth in italics.
33. The Town is renovating the adjacent buildings that house the fire and police departments in order to create a consolidated Public Safety Building and is renovating the Main Library. The Town plans to renovate the Putterham Golf Course Clubhouse, the Soule Recreation Center and the Swimming Pool locker and shower facilities. Within 30 days after their availability, the Town will submit to the Department the architectural and site drawings for these renovations. The Department will review the drawings for conformity to the ADA Standards for Accessible Design, and the Town will renovate these buildings in compliance with the Standards. In the event that the Town's programs, services, and activities are relocated to another facility during the course of any renovations, those facilities must also be in compliance with the Standards. See 28 C.F.R. §§ 35.150(b)(1), 35.151.
34. Brookline High School
a. Accessible Parking and Entrance
(1) Neither of the two accessible parking spaces has correct signage designating them as accessible. Within 30 days of the effective date of this Agreement, the Town will install signage at each space, using the international symbol of accessibility, and provide a sign identified by an additional "van-accessible" sign mounted below the symbol of accessibility for the space configured to be van-accessible. Each sign will be mounted so that it cannot be obscured by a vehicle parked in the space. Standards §§ 4.1.6(1)(b), 4.1.2(5)(a), (b), 4.6.4.
(2) The curb cut does not incorporate a level landing at the top of the curb cut. Within 60 days of the effective date of this Agreement, the Town will provide a curb cut that incorporates a level landing. Standards §§ 4.1.6(1)(b), 4.1.3(16), 4.7 & Fig. 12(a).
(3) The front entrance to the school does not have directional signage indicating the accessible entrance or the accessible route to the auditorium where the Town meetings are held. Within 30 days of the effective date of this Agreement, the Town will install signage that complies with the Standards that indicates the location of the Town meetings and the accessible route to that location. Standards §§ 4.1.6(1)(b), 4.1.3(16), 4.30.
(4) The ramp installed by the Town at the entrance to the school does not comply with the Standards. The Town avers that it has modified the ramp so that it complies with all relevant provisions of the Standards. Standards §§ 4.3.8, 4.8, 4.9, 4.11, 4.26.
b. Women's Toilet Room - Auditorium Level
(1) The rear grab bar in the accessible stall is 34 inches long and 36 ¾ inches above the finish floor. The Town avers that it has installed a rear grab bar that is at least 36 inches long, mounted between 33 and 36 inches above the finish floor with one end no more than 6 inches from the side wall. Standards §§ 4.1.6(1)(b), 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(a), (c).
(2) The side grab bar in the designated stall is 37 inches above the finish floor. The Town avers that it has repositioned the side grab bar so that it is between 33 and 36 inches above the finish floor. Standards§§ 4.1.6(1)(b), 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(d).
c. Men's Toilet Room - Auditorium Level
(1) The rim of the urinal in the men's room is 17¾ inches above the finish floor. The Town avers that it has installed a urinal with an elongated rim that is no more than 17 inches above the finish floor. Standards §§ 4.1.6(1)(b), 4.1.3(11), 4.22.5, 4.18.2.
(2) The toilet paper dispenser in the accessible stall is mounted 48 inches from the back wall. The Town avers that the toilet paper dispenser has been remounted so that the farthest edge of the toilet paper roll is no more than 36 inches from the back wall. Standards §§ 4.1.6(1)(b), 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(d).
(3) The side grab bar in the designated stall is 36¾ inches above the finish floor. The Town avers that the side grab bar has been repositioned so that it is between 33 and 36 inches above the finish floor. Standards §§ 4.1.6(1)(b), 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30 (d).
In order to ensure that each of the Town'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 Town has taken or will take the following actions. Those instances where the Town avers that corrective actions were taken after the Department's April 2000 investigation, but before the effective date of this agreement, are set forth in italics.
35. The Health Center
a. Accessible Entrance
(1) The entry foyer has steps leading to the first floor which make it inaccessible to persons using a wheelchair. Within 30 days of the effective date of this Agreement the Town will install a platform lift that provides access to the first floor and complies with all relevant provisions of the Standards. Standards §§ 4.1.6 (3)(g), 4.3.8, 4.5.2, 4.11.
b. The Unisex Basement Toilet Room
(1) There is no signage at the inaccessible toilet rooms and in other conspicuous places directing people with disabilities to the location of the accessible basement toilet room. The Town avers that it has installed signage that directs users to the location of the accessible basement toilet room has been installed. Standards §§4.1.3(16)(b), 4.30.1, 4.30.2, 4.30.3, 4.30.5.
(2) The accessible unisex basement toilet room is sometimes locked when the inaccessible toilet rooms are left unlocked. The Town avers that it now ensures that the unisex toilet room is kept unlocked at all times.
(3) The unisex basement toilet room does not have the required signage. The Town avers that it has installed signage that identifies the toilet room as unisex and accessible, using raised and Brailled characters and letters, on the wall adjacent to the latch side of the door, mounted so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(4) The end of the side grab bar extends 45½ inches from the back wall; the bar is mounted 30¼ inches above the finish floor. The Town avers that it has installed a side grab bar that is 33-36 inches above the floor, that begins no more than 12 inches from the back wall and is at least 42 inches long. Standards §§ 4.22.4., 4.16.4 & Fig. 29(b).
(5) The flush control is mounted on the narrow or closed side of the toilet. The Town avers that it has remounted the flush control on the wide or open side of stall. Standards § 4.16.5.
(6) The hot water and drain pipes under the lavatory are not insulated or configured to protect against contact. The Town avers that it has installed insulation on each pipe to protect against contact. Standards § 4.19.4.
(7) The door coat hook is located 68¾ inches above the finish floor. The Town avers that it has installed a coat hook that is not more than 54 inches above the finish floor for a side approach or 48 inches above the finish floor for a forward approach. Standards §§ 4.25.3, 4.2.5, 4.2.6.
36. Coolidge Corner Library
a. Unisex Toilet Room
(1) The room does not have compliant signage. The Town avers that it has installed signage that identifies the toilet room as unisex and accessible, using raised and Brailled characters and letters, on the wall adjacent to the latch side of the door, mounted so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The rear grab bar is 31 inches above the finish floor. The Town avers that it has remounted the rear grab bar so that it is 33-36 inches above the finish floor. Standards §§ 4.22.4, 4.16.4 & Fig.29(a).
(3) The end of the side grab bar extends 48½ inches from the back wall; the bar is mounted 31 inches above the finish floor. The Town avers that it has installed a side grab bar that is 33-36 inches above the floor, that begins no more than 12 inches from the back wall and is at least 42 inches long. Standards §§ 4.22.4., 4.16.4 & Fig. 29(b).
(4) The mirror is mounted so that the reflecting surface is 47 inches above the finish floor. The Town avers that the mirror has been remounted so that the bottom of the reflecting surface is no more than 40 inches above the finish floor. Standards §§ 4.22.6, 4.19.6.
(5) The soap dispenser is mounted over the lavatory; its control is 46 inches above the floor and 26¾ inches in from the face of the lavatory. The Town avers that the soap dispenser has been remounted so that it is within the reach ranges set forth in the Standards. Standards §§ 4.22.7, 4.27.3, 4.2.5 & Fig. 5(b), 4.2.6.
(6) The flush control is mounted on the narrow or closed side of the toilet. The Town avers that the flush control has been remounted on the wide or open side of the toilet. Standards § 4.16.5.
(7) The hot water and drain pipes under the lavatory are not insulated or configured to protect against contact. The Town avers that it has installed insulation on each pipe to protect against contact. Standards § 4.19.4.
(8) The drinking fountain is mounted too high. The Town avers that it has replaced the drinking fountain with a fountain having a spout height no more than 36 inches from the finish floor. Standards §§ 4.15.2, 4.27.3, 4.2.5, 4.2.6.
b. Accessible Route
(1) Each interior ramp has only one handrail. The Town avers that handrails that are complaint with the ADA standards have been installed on both sides of each interior ramp. Standards §§ 4.8.5(1), 4.26.
37. Putterham Golf Course Club House
a. Planned Renovation
(1) The Town is planning to renovate the Putterham Golf Course Club House during Fiscal Year 2003. The architectural plans, blueprints and site drawings will be sent to the Department as soon as they become available. After the Department has had an opportunity to review the documentation provided by the Town, the Department will inform the Town of any elements of the design that it believes do not comply with the ADA's provisions governing alterations. The Town will then have 30 days from the date it receives notice from the Department of these violations to modify the designs to the Department's satisfaction. This provision does not in any way limit the Town's responsibility to bring the Golf Course Club House into compliance with the ADA at this time in the manner set forth below.
b. Parking and Accessible Route
(1) The accessible parking space is not located on shortest accessible route to the accessible entrance. Within 30 days of the effective date of this agreement, the Town will relocate the accessible parking space so that it is on the shortest accessible route to the Pro Shop. This accessible parking space will have an adjacent 96-inch access aisle and shall be identified by a sign with the words "van-accessible" under the international symbol of accessibility. The sign shall be mounted so that it cannot be obscured by a vehicle parked in the space. Standards §§ 4.1.2(5)(b), 4.6.2, 4.6.3, 4.6.4.
c. Toilet Rooms
(1) There are no accessible toilet rooms in the Club House. Within six months of the effective date of this agreement, the Town will install an accessible unisex toilet room, located on an accessible route that complies with all relevant provisions of the Standards. Standards §§ 4.1.3(11), 4.1.6(3)(e)(i), 4.16, 4.19.
d. Food Service
(1) The food service is located on the first level which is not on an accessible route. Within 30 day of the effective date of this Agreement, the Town will implement policies, practices and procedures to provide food service to individuals with mobility impairments, upon request, at an accessible location on the lower level. The Town will install signage indicating the availability of such service and an accessible means of requesting it from the food service providers. The Town will also provide an eating surface that is usable by a person who uses a wheelchair with companion seating in the same location. Standards §§ 4.32.3, 4.32.4.
(2) Within 30 days of the effective date of this Agreement, the Town will revise its concessions contract to reflect the policies, practices and procedures being implemented to provide food service to persons with disabilities at the lower level and will ensure that all of the food service employees who currently work in the Club House are informed of those policies, practices and procedures.
e. Pro Shop
(1) The accessible entrance to the Pro Shop has a wooden ramp with protruding nails. Within 30 days of the effective date of this Agreement, the accessible entrance of the Pro Shop will be modified so that the surface of the ramp is stable, firm and slip-resistant and does not contain protruding nails. Standards §§ 4.3.6, 4.5.
(2) There is a 2 ½ inch change in level at the entrance door to the Pro Shop. Within 30 days of the effective date of this Agreement, the threshold at the entrance to the Pro Shop will be modified so that the change is no greater than ½ inch and beveled with a slope no greater than 1:2. Standards §§ 4.8, 4.13.8, 4.5.2.
38. Soule Recreation Center
a. Planned Renovation
(1) The Town is planning to renovate the Soule Recreation Center during Fiscal Year 2002. The architectural plans, blueprints and site drawings will be sent to the Department as soon as they become available. After the Department has had an opportunity to review the documentation provided by the Town, the Department will inform the Town of any elements of the design that it believes do not comply with the ADA's provisions governing alterations. The Town will then have 30 days from the date it receives notice from the Department of these violations to modify the designs to the Department's satisfaction. This provision does not in any way limit the Town's responsibility to bring the Soule Recreation Center into compliance with the ADA at this time in the manner set forth below.
b. The second floor can be accessed only by stairs. The elevator that the Town plans to install from the first to second floors shall comply with the Standards. §§ 4.1.6(1)(b), 4.1.3(1), 4.3.8, 4.10. Pending the installation of the elevator, the Town will relocate the programs offered there to an accessible location upon request of an individual with a mobility impairment who wishes to participate.
c. Toilet Room
(1) In the unisex toilet room, the end of the side grab bar extends 42½ inches from the back wall. Within 30 days of the effective date of this Agreement the Town will install a side grab bar that is 33-36 inches above the floor, begins no more than 12 inches from the back wall and is at least 42 inches long. Standards §§ 4.22.4., 4.16.4 & Fig. 29(b).
39. Putterham Library
a. Parking and Accessible Route
(1) The two accessible parking spaces share a 38-inch wide access aisle and a sign that is positioned too low. Within 30 days of the effective date of this Agreement the Town agrees to re-stripe the spaces to provide the required number of car and van spaces, each van-accessible space will be adjoined by a 96-inch wide access aisle and identified by a "van-accessible" sign under the international symbol of accessibility such that the signage cannot be obscured by a vehicle parked in the space. Each regular accessible space shall be adjoined by a 60-inch wide access aisle identified by signage with the international symbol of accessibility mounted so that it cannot be obscured by a vehicle parked in the space. These spaces shall be located on the shortest accessible route to the accessible entrance to the building. Standards §§ 4.1.2(5)(a), (b), 4.6.3, 4.6.4 & Fig. 9.
b. Unisex Toilet Room
(1) The room does not have compliant signage. The Town avers that it has installed signage that identifies the toilet room as unisex and accessible, using raised and Brailled characters and letters, on the wall adjacent to the latch side of the door, mounted so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The rear grab bar is mounted 31 inches above the finish floor. The Town avers that it has remounted the rear grab bar so that it is 33-36 inches above the finish floor. Standards §§ 4.22.4, 4.16.4 & Fig.29(a).
(3) The end of the side grab bar extends 46 inches from the back wall; the bar is mounted 31½ inches above the finish floor. The Town avers that it has installed a side grab bar that is 33-36 inches above the floor, that begins no more than 12 inches from the back wall and is at least 42 inches long. Standards §§ 4.22.4., 4.16.4 & Fig. 29(b).
(4) The toilet paper dispenser is located on the back wall. The Town avers that it has repositioned the toilet paper dispenser on the side wall so that it is within reach as required by the Standards and is at least 19 inches above the finish floor. Standards §§ 4.22.4, 4.16.6 & Fig. 29 (b).
40. The Swimming Pool
a. Planned Renovation
(1) The Town is planning to renovate the Swimming Pool locker and shower facilities during Fiscal Year 2002. The architectural plans, blueprints and site drawings will be sent to the Department as soon as they become available. After the Department has had an opportunity to review the documentation provided by the Town, the Department will inform the Town of any elements of the design that it believes do not comply with the ADA's provisions governing alterations. The Town will then have 30 days from the date it receives notice from the Department of these violations to modify the designs to the Department's satisfaction. This provision does not in any way limit the Town's responsibility to bring the Swimming Pool into compliance with the ADA in the time and manner set forth below.
The Town shall make the following alterations to the Swimming Pool locker rooms and shower facilities within 18 months of the effective date of this Agreement:
b. Accessible Route
(1) The ramp is 690 inches long with no level landing interrupting the run so that wheelchair users do not tip backwards. Provide at least one break in the run of the ramp and provide level landings at the top and bottom of each run that comply with the Standards. Standards §§ 4.8, 4.8.4.
c. Women's Toilet Room (Locker Room)
(1) The toilet room does not have compliant signage. Install signage, using raised and Brailled characters, on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30, 4.30.1, 4.30.4, 4.30.5, 4.30.6.\
(2) The rear grab bar in the accessible stall begins 11½ inches from the side wall. Provide a bar that is at least 36 inches long and that is mounted no more than 6 inches from the side wall. Standards §§ 4.23.4, 4.17.6 & Fig.30(a).
(3) The side grab bar in the accessible stall is angled. Provide a side grab bar that is mounted horizontally 33-36 inches above the floor, that begins no more than 12 inches from the back wall, is at least 40 inches long, and that extends at least 52 inches from the back wall. Standards §§ 4.23.4, 4.17.6, 4.17.3, & Fig. 30(a), (d).
(4) The door coat hook in the accessible stall is mounted 65 inches above the finish floor. Provide a coat hook that is not more than 54 inches above the finish floor for a side approach. Standards §§ 4.25.3, 4.2.6.
d. Women's Changing Area (Locker Room)
(1) There is no compliant signage identifying the room at either entry/exit door. Install signage at the lobby and pool-side doors, using raised and Brailled characters, on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30, 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The pressure required to open the door leading to the pool area is more than 5 pounds. Adjust the door opening force so that it is 5 pounds or less. Standards § 4.13.11(2)(b).
(3) The bench in the accessible changing stall is 11¼ inches deep. Provide a bench that is at least 24 inches deep and otherwise complies with the Standards. Standards § 4.35.4.
(4) Install signage directing users to the location of the accessible changing stall. Standards §§ 4.1.3(16)(b), 4.30.1, 4.30.2, 4.30.3, 4.30.5.
e. Women's Shower (Locker Room)
(1) The accessible shower stall does not comply with the Standards. Alter the stall so that it complies fully with respect to seat, grab bars, controls, shower unit, shower enclosure, and curb. Standards §§ 4.23.8, 4.21 & Fig. 35(b), 9.1.2 & Fig. 57(a), 4.26., 4.27.4.
f. Men's Toilet Room (Locker Room)
(1) The toilet room does not have compliant signage. Install signage, using raised and Brailled characters, on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30, 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The rear grab bar in the accessible stall begins 8 ½ inches from the side wall and is mounted 30 inches above the finish floor. Provide a bar that is at least 36 inches long and is mounted no more than 6 inches from the side wall and no more than 33-36 inches above the floor. Standards §§ 4.23.4, 4.17.6 & Fig. 30(a), (c).
(3) The side grab bar in the accessible stall is 30 inches above the finish floor. Reposition the bar so that it is 33-36 inches above the finish floor. Standards §§ 4.23.4, 4.17.6, 4.17.3, & Fig. 30(d).
g. Men's Changing Area and Shower Stall (Locker Room)
(1) There is no compliant signage identifying the room at either entry/exit door. Install signage at the lobby and pool-side doors, using raised and Brailled characters, on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30, 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The accessible shower stall does not comply with the Standards. Alter the stall so that it complies fully with respect to seat, grab bars, controls, shower unit, shower enclosure, and curb. Standards §§ 4.23.8, 4.21 & Fig. 35(b), 9.1.2 & Fig. 57(a), 4.26, 4.27.4.
41. The Physical Education Building
a. Women's Toilet Room (Locker Room)
(1) The centerline of the toilet in the accessible stall is 26 inches from the side wall. Within 60 days of the effective date of this Agreement, the Town will remount the toilet in the accessible stall so that the centerline is exactly 18 inches from the side wall. Standards §§ 4.23.4, 4.17.3 & Fig. 30(a).
(2) The side grab bar in the accessible stall extends 48 ½ inches from the back wall and is mounted 37 inches above the finish floor. Within 30 days of the effective date of this Agreement, the Town will remount or replace the side grab bar in the accessible stall so that a side grab bar is provided that is mounted 33-36 inches above the floor, begins no more than 12 inches from the back wall, is at least 40 inches long, and extends at least 52 inches from the back wall. Standards §§ 4.23.4, 4.17.6 & Fig. 30(d).
b. Women's Shower (Locker Room)
(1) Within 60 days of the effective date of this Agreement, the accessible shower will be altered so that it complies fully with respect to seat, grab bars, controls, shower unit, shower enclosure, and curb. Standards §§ 4.23.8, 4.21 & Fig. 35(a), 4.26, 4.27.4.
c. Men's Toilet Room and Shower (Locker Room)
(1) Within 60 days of the effective date of this Agreement, the Town will survey these spaces and elements for compliance with the Standards, provide the surveys to the Department for approval, and make remediations as deemed necessary by the Department within 6 months of the effective date of this Agreement. Standards §§ 4.23, 4.17, 4.21, 4.26, 4.27.4.
42. Town Hall
a. Women's Toilet Room
(1) The door coat hook in the accessible stall is 62 inches above the finish floor. The Town avers that it has repositioned the door coat hook so that it is not more than 54 inches above the finish floor for a side approach. Standards §§ 4.25.3, 4.2.6.
(2) The rear grab bar in the accessible stall begins 15 inches from the side wall. The Town avers that it has installed a rear grab bar that is at least 36 inches long, mounted between 33 and 36 inches above the finish floor and no more than 6 inches from the side wall. Standards §§ 4.22.4, 4.17.6 & Fig.30(a).
(3) The side grab bar in the accessible stall extends 49 inches from the back wall. The Town avers that it installed a side grab bar in the accessible stall that is at least 40 inches long, mounted between 33 and 36 inches above the finish floor and no more than 12 inches from the back wall, and ends at least 52 inches from the back wall. Standards §§ 4.22.4, 4.17.6 & Fig. 30(d).
(4) The toilet room signage is mounted at a height of 45¾ inches above the finish floor to the centerline of the sign and does not have Brailled characters. The Town avers that it has installed signage that identifies the toilet room as unisex and accessible, using raised and Brailled characters and letters, on the wall adjacent to the latch side of the door, mounted so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
b. Men's Toilet Room
(1) The toilet room signage is mounted at a height of 45 inches above the finish floor to the centerline of the sign and does not have Brailled characters. The Town avers that it has installed signage that identifies the toilet room as unisex and accessible, using raised and Brailled characters and letters, on the wall adjacent to the latch side of the door, mounted so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The rear grab bar in the accessible stall is 30 ¾ inches above the finish floor. The Town avers that it has installed a rear grab bar that is at least 36 inches long, mounted between 33 and 36 inches above the finish floor and no more than 6 inches from the side wall. Standards §§ 4.22.4, 4.17.6 & Fig.30.
(3) The toilet paper dispensers are located 38 inches and 45 inches from the back wall. The Town avers that it has remounted the toilet paper dispensers so that each is located no more than 36 inches from the back wall. Standards §§ 4.22.4, 4.17.3 & Fig. 30(d).
(4) The door coat hook in the accessible stall is 61 inches above the finish floor. The Town avers that it has repositioned the door coat hook in the accessible stall so that it is not more than 54 inches above the finish floor for a side approach. Standards §§ 4.25.3, 4.2.6.
43. Lynch Playground
a. Accessible Route
(1) There is no accessible route from street parking into the playground. Within 18 months of the effective date of this Agreement, the Town will provide an accessible route that is stable, firm, and slip resistant. Standards §§ 4.1.2(1), 4.3.6, 4.5.1.
44. The Public Safety Building
a. The buildings that previously housed the Town's police and fire department headquarters are presently being renovated in order to create a consolidated Public Safety Building. The Town agrees to make these modifications in compliance with the ADA's provisions governing alterations and path of travel.
b. Within 30 days of the effective date of this Agreement, the Town will provide the Department with copies of blueprints, design drawings, and cost estimates for the renovations being done to the Public Safety Building. If the Department determines that the Town has failed to renovate these buildings in a manner compliant with the alterations and path of travel provisions of the ADA, the Department will notify the Town of those elements that are not compliant. The Town will either correct the design or, if the facility has already been altered modify the facility to bring it into compliance within 30 days of receiving notice from the Department.
45. The Main Library
a. The buildings that house the Town's Main Library are presently being renovated. The Town agrees to make these modifications in compliance with the ADA's provisions governing alterations and path of travel.
b. Within 30 days of the effective date of this Agreement, the Town will provide the Department with copies of blueprints, design drawings, and cost estimates for the renovations being done to the Main Library Buildings. If the Department determines that the Town has failed to renovate these buildings in a manner compliant with the alterations and path of travel provisions of the ADA, the Department will notify the Town of those elements that are not compliant. The Town will either correct the design or, if the facility has already been altered modify the facility to bring it into compliance within 30 days of receiving notice from the Department.
V. IMPLEMENTATION AND ENFORCEMENT
As stated above, the parties to this Agreement are the United States of America (United States) and the Town of Brookline, Massachusetts. In informal resolution of this matter pursuant to 28 C.F.R. § 35.172, and in order to avoid the burdens and expenses of further investigations and possible litigation, the parties hereby agree as follows:
46. Except as otherwise specified in this Agreement, at 90 and 180 days after the effective date of this Agreement, and thereafter at yearly anniversaries of the effective date for the life of the Agreement, the Town will submit written reports to the Department summarizing the actions the Town has taken pursuant to this Agreement. Reports will include photographs, architectural plans, notices published in the newspapers, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations.
47. If at any time the Town 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 shall not be unreasonably withheld or delayed. Should the Town's proposed modification reasonably require an extension of the time for compliance, the Department's approval of such modification, if any, shall include such extension of time. The Town shall not be held in violation of this Agreement under paragraph 50, below, if the Town has notified the Department in writing of its request for a modification of any portion of this Agreement at least 30 days before the time for compliance with such portion of the Agreement has expired; the time for such compliance has expired; and the Town has not received a written response to its request for such modification from the Department.
48. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any portion of it has been violated, it will so notify the Town 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 Town, it may institute a civil action in federal district court directly to enforce Title II or to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce section 504 of the Rehabilitation Act.
49. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
50. In the event that the Town fails to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a temporary modification of the relevant terms of this Agreement, the Department may file suit in an appropriate federal court to enforce the terms of the Agreement, may declare the Agreement null and void and file suit to enforce Title II of the ADA, or may initiate appropriate steps to enforce section 504 of the Rehabilitation Act.
51. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person by the Town or the Department on request.
52. The effective date of this Agreement is the date of the last signature below.
53. 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, shall 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 Town's continuing responsibility to comply with all aspects of the ADA.
54. This Agreement will remain in effect for three years from the effective date of this Agreement, or until the parties agree that full compliance with this Agreement by the Town has been achieved. The Department will notify the Town when it believes that full compliance has been achieved.
55. The person signing for the Town represents that he or she is authorized to bind the Town to this Agreement.
For the Town: For the United States:
By:__________________________
RICHARD KELLIHER
Town Administrator
333 Washington Street
Brookline, Massachusetts 02445
(617) 730-2200
Dated:____________________
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
By:__________________________
JOHN L. WODATCH, Chief
SUSAN B. REILLY, Deputy Chief
NAOMI MILTON, Supervisory Attorney
SUSAN G. QUINN, Investigator
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 307-0663
Dated: _______________________
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September 20, 2001