RECITALS
This matter was initiated as a compliance review under title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, of Brookside Gardens by the United States Department of Justice (“Department”). Brookside Gardens is operated by The Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland public body corporate. The onsite compliance review took place on December 18, 2000 (“Compliance Review”). The purpose of the Compliance Review was to ascertain the accessibility of the Brookside Gardens Conservatory building (“Conservatory”) and to document noncompliance of the Brookside Gardens Visitors Center (“Visitors Center”) (together “Brookside Gardens”).
Brookside Gardens is a display garden in Wheaton, Maryland. The Commission is a public entity as defined in the ADA, 42 U.S.C. §12131, and the Department’s implementing regulation at 28 C.F.R. § 35.104. Under the ADA, the Commission is required to ensure that its programs are accessible to members of the public with disabilities, as defined in the ADA.
The Department of Justice is authorized to conduct compliance reviews under 42 U.S.C. § 12133 in order to determine Brookside Gardens’ compliance with title II and the Department’s implementing title II regulation, to issue findings and, where appropriate, to negotiate and secure a voluntary compliance agreement. 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.
The parties have agreed to resolve this matter as set forth below, without adjudication of any factual and legal disputes.AGREEMENT
The recitals are hereby incorporated herein by reference.
A. REMEDIAL ACTION
1. To insure that the Visitors Center, newly constructed after January 26, 1992, is readily accessible to and usable by persons with mobility impairments, the Commission will complete the following alterations within one year of the effective date of this agreement, except where otherwise noted. Citations refer to the ADA Standards for Accessible Design (“Standards”), 28 C.F.R. Part 36, Appendix A.
a. The designated accessible parking space located closest to the building entrance is 93 inches wide. Provide an accessible space that is at least 96 inches wide. Standards §§ 4.1.2(5)(a), 4.6.3, and Figure. 9.
b. The inaccessible entrance does not have a directional sign indicating the location of the nearest accessible entrance. Provide a sign at the inaccessible entrance directing the public to the closest accessible entrance. Standards §§ 4.1.2(7)(c), 4.30.1, 4.30.2, 4.30.3, and 4.30.5.
c. The Administrative Office toilet room is not accessible. Because significant modifications to alter this employee toilet room would be required to make it accessible, the Commission will convert this toilet room into a storage room. The Commission reserves the right to perform the necessary alterations to this room, as listed below, in order to continue, or to revert to, its use as a toilet room. Standards § 4.16.i. There are 11-1/2 inches of clear space provided on the latch side of the door. Provide at least 18 inches on the latch side of the door for a forward pull approach. Standards §§ 4.1.3(7), 4.13.6, and Fig. 25.
ii. The force required to open the toilet room door is 15 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards §§ 4.1.3(7) and 4.13.11.
iii. The space does not allow a 60 inch diameter or T-shaped unobstructed turning radius within the toilet room. Provide a toilet room that has a 60 inch turning radius. Standards §§ 4.1.3(11), 4.22.3, and 4.2.3.
iv. The toilet room door swings into the clear floor space required at the toilet and the lavatory. Provide a door that does not swing into the clear floor space of the toilet or lavatory. Standards §§ 4.1.3(11), 4.22.2, 4.22.3, 4.22.4,4.22.6, 4.16.2, Fig. 28, 4.19.3 and Fig. 32.
v. There is no rear or side grab bar in the toilet room. Provide a rear grab bar that is at least 36 inches long, positioned no more than 6 inches from the side wall, and 33-36 inches above the finished floor. Provide a side grab bar that is at least 42 inches long, positioned no more than 12 inches from the rear wall, and 33-36 inches above the finished floor. Standards §§ 4.1.3(11), 4.22.4, 4.16.4, 4.26, and Fig. 29.
vi. The bottom of the lavatory apron is 27-1/2 inches above the finished floor. Provide a lavatory with an apron is at least 29 inches above the finished floor. Standards §§ 4.1.3(11), 4.22.6, 4.19.2, and Fig. 31.
vii. The knee space underneath the lavatory at a depth of 8 inches is 24 inches above the finished floor. Provide a lavatory that is at least 27 inches above the finished floor at a depth of 8 inches. Standards §§ 4.1.3(11), 4.22.6, 4.19.2, and Fig. 31.
viii. The hot water and drain pipes underneath the lavatory are not insulated or otherwise configured to protect against contact. Insulate or otherwise configure the hot water and drain pipes to protect against contact. Standards §§ 4.1.3(11), 4.22.6, and 4.19.4.
ix. The faucet knobs require tight grasping, pinching, or twisting of the wrist to operate. Provide faucet knobs that do not require tight grasping, pinching, or twisting of the wrist to operate. Standards §§ 4.1.3(11), 4.22.6, and 4.19.5.
x. The control of the paper towel dispenser is 51 inches above the finished floor. Provide a paper towel dispenser that is no higher than 48 inches above the finished floor with a forward reach. Standards § 4.2.5.
xi. A visual alarm is not provided within the toilet room. Provide a visual alarm in the toilet room as required in all common use areas. Standards §§ 4.1.3(14), 4.28.1, and 4.28.3.d. Children’s Classroom Toilet Room. The Commission may convert the use of this room to a storage room and forego the renovations required to make the room accessible. Alternatively, the Commission may perform the following alterations and continue to use the room as a toilet room.
i. The force required to open the toilet room door is 13 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards §§ 4.1.3(7), 4.13.11.
ii. There is not a rear or side grab bar located at the toilet. Provide grab bars in compliance with the Standards except that the requirement for height need not be met. Standards §§ 4.1.3(11), 4.17.6, 4.26. For guidance regarding suggested heights for children’s facilities, see Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities; Building Elements Designed for Children’s Use, § 4.16.7(3).
iii. The hot water and drain pipes underneath the lavatory are not insulated or otherwise configured to protect against contact. Provide a lavatory that has hot water and drain pipes that are insulated or otherwise configured to protect against contact. Standards §§ 4.1.3(11), 4.22.6, and 4.19.4.
iv. The lavatory faucet knobs require tight grasping, pinching, or twisting of the wrist to operate. Provide faucet knobs that do not require tight grasping, pinching, or twisting of the wrist to operate. Standards §§ 4.1.3(11), 4.22.6, and 4.19.5.
v. A visual alarm is not provided within the toilet room as required in all public spaces and common use areas. Provide a visual alarm in the children’s toilet room. Standards §§ 4.1.3(14), 4.28.1, and 4.28.3.e. Women’s Toilet Room
i. The accessible sign identifying the toilet room is incorrectly mounted. Provide a sign with raised letters and Braille positioned on the wall adjacent to the latch side of the door 60 inches above the finished floor, so that a person may approach within three inches of the signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a) and 4.30.6.
ii. The force required to open the toilet room door is 13 pounds. Modify as necessary to ensure that no more than 5 pounds of force is required to open the door. Standards §§ 4.1.3(7) and 4.13.11.
iii. There are 17 inches of clear space provided on the latch side of the door. Alter the space so that there are at least 18 clear inches for a forward pull approach or provide an automatic door opener. Standards §§ 4.1.3(7), 4.13.6, and Figure 25.
iv. The toilet seat in the designated accessible stall is 20 inches above the finished floor. Modify as necessary to provide a seat that is between 17 and 19 inches above the finished floor. Standards §§ 4.1.3(11), 4.22.4, and 4.16.3.
v. The toilet paper dispenser in the designated accessible stall is 45 inches from the rear wall to the front of the roll. Provide a toilet paper dispenser that is no more than 36 inches from the rear wall to the front of the roll. Standards §§ 4.1.3(11), 4.22.4, 4.17.3, and Figure 30(d).
vi. The side grab bar in the designated accessible stall is 36 inches long. Provide a side grab bar that is at least 40 inches long and positioned no more than 12 inches from the rear wall. Standards §§ 4.1.3(11), 4.22.4, 4.17.6, and Fig. 30.
vii. The baby changing station handle is 62 inches above the finished floor. Provide a changing station with a handle no more than 54 inches above the finished floor for a side reach or no more than 48 inches above the finished floor for a forward reach. Standards §§ 4.1.3(11), 4.22.7, 4.27.3, 4.2.5, and 4.2.6.
viii. The coat hook on the toilet stall door in the designated accessible stall is 66 inches above the finished floor. Provide a coat hook that is no more than 54 inches high for a side reach. Standards §§ 4.1.3(12), 4.25.3, and 4.2.6.f. Men’s Toilet Room
i. The accessible sign identifying the toilet room is incorrectly mounted. Provide a sign with raised letters and Braille positioned on the wall adjacent to the latch side of the door 60 inches high, so that a person may approach within three inches of the signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.1.3(16)(a) and 4.30.6.
ii. The force required to open the toilet room door is 15 pounds. Modify as necessary to ensure that no more than 5 pounds of force is required to open the door. Standards §§ 4.1.3(7) and 4.13.11.
iii. The toilet seat in the designated accessible stall is 20 inches above the finished floor. Modify as necessary to provide a seat that is between 17 and 19 inches above the finished floor. Standards §§ 4.1.3(11), 4.22.4, and 4.16.3.
iv. The control for the flush valve in the designated accessible stall is located on the side of the toilet closest to the wall. Provide a toilet that has the flush control on the open side of the toilet stall or provide an automatic flusher. Standards §§ 4.1.3(11), 4.22.4, 4.16.5.
v. The toilet paper dispenser in the designated accessible stall is 45 inches from the rear wall to the front of the roll. Provide a toilet roll dispenser so that it is no more than 36 inches from the rear wall to the front of the roll. Standards §§ 4.1.3(11), 4.22.4, 4.17.3, and Fig. 30(d).
vi. The side grab bar in the designated accessible stall is 36 inches long. Provide a side grab bar that is at least 40 inches long and positioned no more than 12 inches from the rear wall. Standards §§ 4.1.3(11), 4.22.4, 4.17.6, and Fig. 30.
vii. The baby changing station handle is 60 1/2 inches above the finished floor. Provide a changing station with a handle no more than 54 inches above the finished floor for a side reach or no more than 48 inches above the finished floor for a forward reach. Standards §§ 4.1.3(11), 4.22.7, 4.27.3, 4.2.5, and 4.2.6.
viii. The coat hook on the toilet stall door in the designated accessible stall is 67 inches above the finished floor. Provide a coat hook that is no more than 54 inches above the finished floor for a side reach. Standards §§ 4.1.3(12), 4.25.3, and 4.2.6.g. The two drinking fountains provided at the facility have lowered spout heights accessible to individuals who use wheelchairs. Provide a drinking fountain accessible to individuals who have difficulty bending or stooping or provide paper cup dispensers next to the existing fountains within the reach range requirements of the Standards. Standards §§ 4.1.3(10), 4.27.3, 4.2.5, 4.2.6.
2. In order to improve accessibility at the Conservatory, a facility that existed before January 26, 1993, and has not been altered since January 26, 1992, the Commission will complete the following alterations within 180 days of the effective date of this agreement.
a. The two designated accessible parallel parking spaces provided at the curb have no signage. Provide signs designating these spaces as accessible. Standards § 4.6.4.
b. The cash register counter in the Gift Shop is 45 inches above the finished floor. Provide a portion of the counter that is at least 36 inches long and no more than 36 inches above the finished floor or provide access to services transacted at this counter through alternate means (e.g., by offering those services at an accessible location for individuals who use wheelchairs). Standards § 7.2(1).
c. The survey uncovered several elements in the women’s and men’s toilet rooms that are not compliant with the current ADA Standards. The Commission disagrees with the application of present day standards to this toilet room, which has not undergone renovation since January 26, 1992. However, the Commission agrees to renovate the toilet room and has submitted to the Department a set of architectural drawings, which reflect the proposed changes (“Architectural Drawings”). Department representatives have reviewed and approved the proposed work delineated in the Architectural Drawings, dated January 27, 2003 (attached hereto, and incorporated herein, as Attachment A).
d. The one drinking fountain provided at the facility has a lowered spout height accessible to individuals who use wheelchairs. There is not a drinking fountain accessible to individuals who have difficulty bending or stooping. Provide a drinking fountain that can accommodate individuals who have difficulty bending or stooping or install a cup dispenser next to the existing fountain within the reach range requirements of the Standards. Standards §§ 4.1.3(10), 4.27.3, 4.2.5, 4.2.6.
e. First Greenhousei. The door to the greenhouse swings into the clear floor space of the entrance to one of the toilet rooms. The Commission will configure an entrance into the greenhouse that does not obstruct the clear floor space at the toilet room entrance. Standards § 4.13.
ii. The greenhouse walkways are made of stone pavers. There are some locations where the stone pavers are uneven with the surrounding stones creating a surface that is not stable and firm. The Commission agrees to provide a stable walkway through the greenhouse that has no more than a 1/4 inch differential in height between adjoining pavers. Standards § 4.5.2.f. Second Greenhouse. The door threshold of the exterior door to the park is 1 inch instead of no more than 1/2 inch. Provide a door entry that has a threshold no greater than 1/2 inch or is beveled with a slope no greater than 1:2. Standards § 4.13.8.
B. IMPLEMENTATION AND ENFORCEMENT
1. This Agreement is the result of a negotiated compromise. Its terms may not reflect the full legal requirements of the ADA; nevertheless, in the interest of finality, both parties believe that it is in their best interest to enter into this Agreement. Compliance with the terms of this Agreement by the Commission consitutes a full and final settlement of all issues raised by the Department in its Compliance Review.
2. The Commission will submit written reports to the Department 90 days, 180 days, and one year after the effective date of this Agreement, summarizing the actions the Commission has taken pursuant to this Agreement. Reports will include photographs and, if available, architectural drawings.
3. If at any time the Commission 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.
4. 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 Commission 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 Commission, it may institute a civil action in federal district court directly to enforce title II or to enforce the terms of this Agreement.
5. 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.
6. In the event that the Commission 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, or may declare the Agreement null and void and file suit to enforce title II of the ADA.
7. 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 Commission or the Department on request.
8. The effective date of this Agreement is the date of the last signature below.
9. 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 Commission’s continuing responsibility to comply with all applicable aspects of the ADA.
10. This Agreement will remain in effect for two years from the effective date of this Agreement, or until the parties agree that full compliance with this Agreement by the Commission has been achieved.
For the Maryland- National Capital Park
and Planning Comission:
For the United States:
____________________________________
TRUDYE MORGAN JOHNSON
Executive Director
____________________________________
PATRICIA COLIHAN BARNEY
Secretary-Treasurer
Date:____________9/15/03_____________________
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
By:_________________________________
JOHN L. WODATCH, Chief
MARY LOU MOBLEY, Acting Deputy Chief
NAOMI MILTON, Supervising Attorney
AMELIA M. EDUARDO, Investigator
Disabilty Rights Section- NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue., N.W.
Washington , DC 20530
Date:__________10/20/03_______________________
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March 25, 2004