BACKGROUND
A. 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 Butte County, South Dakota ("County"). 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 Butte County Courthouse is not wheelchair accessible.
Because the County 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. The Department expanded the scope of the investigation to include the County'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 regulations (28 C.F.R. Part 35), 28 C.F.R. §35.105;
- to notify applicants, participants, beneficiaries, and other interested persons of their rights and the County's obligations under title II and the Department's regulations, 28 C.F.R. §35.106;
- to designate a responsible employee to coordinate its efforts to comply and carry out the County'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 be 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") or the Uniform Federal Accessibility Standards ("UFAS");
- 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,
- 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;
- where the County communicates by telephone, to communicate through a telecommunications device for the deaf ("TDD"), or other equally effective telecommunications system, with individuals who have hearing or speech impairments, 28 C.F.R. §35.161;
- to provide direct access via TDD or computer to telephone emergency services, including 911 services, for persons who use TDD'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 County'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).
The Department limited its program access review to those of the Butte County's programs, services, and activities that operate in the following facilities: Butte County Courthouse, Butte County Sheriff's Offices, Agriculture Extension Office and State's Attorney Office Building, Butte County Fairgrounds, and Butte County Nurse's Office.
The Department also reviewed the accessibility of the following Butte County polling locations that are not County facilities: Nisland Town Hall and American Legion Lodge, Newell City Hall/Community Hall, and Belle Fourche community Hall.
B. JURISDICTION
1. The ADA applies to the County because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).
2. 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 County 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. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
3. The Department is also authorized under 28 C.F.R. Part 42, Subpart G, to investigate the complaint in this matter to determine the County's compliance with § 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 to the County 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.
The parties to this Agreement are the United States of America and Butte County, South Dakota. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties hereby agree as follows:
REMEDIAL ACTION
4. 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 in this matter with respect to matters addressed in paragraphs 6 through 20, except as provided in paragraphs 23 and 25.
5. The Parties agree that the technical requirements and, where appropriate, the scoping requirements of the ADA Standards for Accessible Design ("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.
C. POLICIES AND PROCEDURES
6. Within 90 days of the effective date of this Agreement, the County will distribute the attached Notice to all agency heads 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 the Agreement. Copies will also be provided to any person upon request.
7. Within 3 months of the effective date of this Agreement, the County will amend its employment policies to provide that any selection criterion that has the effect of disqualifying an individual with a disability from employment based on disability must be job- related and consistent with business necessity.
D. POLLING PLACES
8. Butte County recognizes that the facilities that it uses to hold County elections are not readily accessible to and usable by person with mobility impairments. These facilities are subject to the obligation to provide program access under title II of the ADA, however, and thus could be subject to an independent federal compliance review. This agreement does not limit such future enforcement action by any person or entity.
9. Butte County will continue to search for facilities to use as polling places that conform to the ADA Standards for Accessible Design with respect to parking, exterior routes, entrances, and interior routes to the voting area.
10. Butte County agrees to continue to provide the option of mail ballots or absentee ballots to persons with disabilities, in accordance with South Dakota law, provided that the ballots are accepted up to and including the day of the election.
11. Until such time as the County uses polling places that meet the Standards, it will provide a notice in local papers and on radio stations before elections that the Butte County Courthouse, Newell City Hall/Community Hall, Nisland Town Hall and American Legion Lodge, and Belle Fourche Community Hall provide limited or no accessibility for persons with disabilities and that absentee ballots are available on request.
E. TDD AND 9-1-1 SERVICES
12. The County agrees that it will provide training for all new TDD call takers, that it will provide refresher training for all of its previously trained TDD call takers at least once every year, that it will continue to maintain its TDD equipment in a manner equal to its voice telephone equipment, and that it will continue to test its TDD equipment on a regular basis keeping records of the results of all tests calls beginning with the effective date of this Agreement.
13. The County will publish a notice in the local telephone book that the 9-1-1 number accepts TDD calls. The notice will be published at the first available opportunity but not more than one year from the effective date of this Agreement.
F. EFFECTIVE COMMUNICATION
14. Within 60 days of the effective date of this Agreement, the County will identify sources of qualified sign language interpreters and vendors that Braille documents, and will develop written procedures, with time frames, for fulfilling requests from the public for interpreters and documents in alternate formats (Braille, large print, cassette tapes, etc.)
15. The County agrees that within 180 days of the effective date of this Agreement all letters sent to the public from the County will have the County's TDD number printed on the letterhead, and that it will develop a poster displaying the County's TDD number and information about requesting ADA accommodations and will post it in public areas of all buildings it owns, leases, or operates.
G. ADA COORDINATOR
16. The County agrees that within 30 days of the effective date of this Agreement, it will designate an employee to coordinate its efforts to comply with and carry out its responsibilities under title II of the ADA. The name, office address and telephone number of the ADA coordinator will be made available to all interested persons.
H. GRIEVANCE PROCEDURE
17. The County agrees that within 30 days of the effective date of this Agreement, it will establish a grievance procedure for resolving complaints of violations of title II of the ADA.
I. SIGNAGE ON ACCESSIBLE AND INACCESSIBLE ENTRANCES
Within 7 months of the effective date of this Agreement, the County will survey the facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible, and install signage as necessary in compliance with 28 C.F.R. § 35.163(b).
J. PHYSICAL CHANGES
In order to ensure that each of the County'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 County will take the following actions.
19. BUTTE COUNTY COURTHOUSE
The Butte County Commissioners shall complete the following alterations to the Butte County Courthouse within the time frames indicated:
a. There are two designated accessible parking spaces, neither of which is demarcated or designated as van accessible. Demarcate at least 4 designated accessible parking spaces to conform to the Standards and to provide at least one van-accessible parking space served by an access aisle at least 96 inches wide and identified by an additional van-accessible sign mounted below the symbol of accessibility, within 3 months of the effective date of this Agreement. §§ 4.1.2(5)(b), 4.6.3, 4.6.4.
b. Although there is one accessible entrance to the building, there is no accessible route within the building that connects any entrance to accessible spaces and elements within the building. Complete the following to provide an accessible route into and within the building connecting an accessible entrance to accessible spaces and elements within the building:
(1) Construct an accessible concrete entrance ramp from the Courthouse parking lot and an accessible building entrance, within 7 months of the effective date of this Agreement. §§ 4.1.2(2), 4.3.2(3), 4.3.8, 4.5.2, 4.8 & Fig.17, 4.26,
(2) Construct a concrete elevator pit and a machine room and install new electrical service for the proposed elevator, ensuring that the pit has the capacity to accept an accessible elevator, within 7 months of the effective date of this Agreement.. §§ 4.1.3(5), 4.10.1, 4.10.9, and Fig. 22.
(3) Install an elevator that complies with the Standards and that will serve the 3 floors of the Courthouse, no later than December 31, 2002. §§ 4.1.3(5), 4.10.
(4) Post signage at the building entrances to designate the accessible route to the alternate accessible facility where services that are housed in the Courthouse will be provided in the interim, within 1 month of the effective date of this Agreement. §§ 4.1.2(7), 4.1.3(8)(d), 4.30.7, 4.10.
c. Toilet Rooms
(1) The men's toilet rooms in the Courthouse do not meet the requirements for accessible design. Construct a men's toilet room with an accessible urinal and a "standard" accessible toilet stall at least 60 inches wide and 59 inches deep (56 inches if the toilet is wall mounted) such that all of the stall's elements, including stall door and hardware, toilet, size and arrangement, toe clearances, grab bars, controls and dispensers comply with the Standards, within 7 months of the effective date of this Agreement. At least one accessible lavatory also must be provided. §§ 4.13, 4.22.4, 4.16, 4.17 and Figure 30, 4.26, 4.27, 4.19.
(2) The women's toilet rooms in the Courthouse do not meet the requirements for accessible design. Construct a women's toilet room so that the spaces and elements; including the room identification signage, entry door, clear floor space, turning space, accessible route, water closet, grab bars, lavatory, mirror, and controls and dispensers; comply with the Standards, within 7 months of the effective date of this Agreement. §§ 4.1.3(11), 4.22, 4.2, 4.3, 4.13, 4.16 and Figs. 28 & 29, 4.19 and Figs. 31 & 32, 4.27, 4.30.
(3) There are no accessible water fountains within the Courthouse. Provide at least one water fountain with a spout height no higher than 36 inches above the finish floor, or install cups next to the existing fountains so that they dispense within the reach ranges of persons who use wheelchairs. §§ 4.15.2 & Fig. 27(a), 4.27.3, 4.2.5, 4.2.6.
20. AGRICULTURE EXTENSION AND STATE'S ATTORNEY OFFICE BUILDING
The Butte County Commissioners shall complete the following alterations to the Agriculture Extension and State's Attorney Office Building within one year of the effective date of this Agreement:
a. The front entrance door to the building has a clear opening width of 281/2 inches and there is a 3 1/2 inch change in elevation at the threshold. In addition, all office space is accessed by stairs leading from the entrance foyer. Install signs at the inaccessible entrance providing directions to the accessible route and accessible rear entrance as modified below, within 1 month of the effective date of this Agreement. §§ 4.1.2(7), 4.1.3(8)(d), 4.30.7.
b. Rear Entrance
(1) There is a 1 1/2 inch change in elevation at the threshold of the building's rear entrance door. Alter this threshold so that the change is no greater than 1/4 inch or 1/2 inch and beveled with a slope no greater than 1:2; or install a ramp with a slope no greater than 1:12 and an automatic door opener, within 7 months of the effective date of this Agreement. §§ 4.13.8, 4.5.2, 4.8.
(2) The width of the concrete landing at the base of the ramp is 35 inches, and there is a change in direction required to access the ramp, which is also 35 inches wide. Provide a level landing at the base of the ramp that is at least 60 inches by 60 inches clear with a surface that is level with the abutting surface of the ramp and that has edge protection where there is a drop off, within 7 months of the effective date of this Agreement. §§ 4.8.1, 4.8.4, 4.8.7.
(3) Neither handrail extends beyond the bottom of the ramp segment; neither handrail has ends that are rounded or return smoothly to the floor, wall, or post; and neither handrail is continuous and grippable. Provide handrails that extend at least 12 inches beyond the bottom of the ramp segment, the ends of which are either rounded or returned smoothly to floor, wall, or post, within 7 months of the effective date of this Agreement. §§ 4.8.5(2), 4.8.5(4), 4.8.5 (6), 4.26.2, Fig.39.
c. Parking
There is a designated accessible parking space at the rear of the building which is not demarcated nor designated as van accessible. Paint striping for the space to conform to the Standards and to provide at least one van-accessible parking space served by an access aisle at least 96 inches wide and identified by a van-accessible sign mounted below the symbol of accessibility, within 3 months of the effective date of this Agreement. §§ 4.1.2(5)(b), 4.6.3, 4.6.4.
d. Agriculture Extension Office Unisex Toilet Room.
The toilet room is not accessible to people who use wheelchairs because the entrance door has a clear opening width of 211/2 inches and has knob hardware, the centerline of the toilet is located 141/2 inches from the side wall, the lavatory has twist-type faucets, there is not sufficient clear floor space to approach and use the lavatory, there is no rear grab bar at the toilet, and there is no side grab bar at the toilet. Provide an accessible "unisex" toilet room on an accessible route so that the spaces and elements; including the clear floor space, turning space, accessible route, accessible door including maneuvering clearance on both sides and a privacy lock/latch, toilet, grab bars, lavatory, mirror if provided, controls, dispensers, and directional and identification signs, if any are provided; comply with the Standards, no later than December 31, 2002. §§ 4.1.6(3)(e)(i), 4.1.2(7)(d), 4.22, 4.2, 4.3, 4.13, Fig. 25, 4.16 Figs. 28 & 29, 4.19, Figs. 31 & 32, 4.25, 4.26, 4.27, 4.30.
21. SHERIFF'S OFFICE
The alcove off of the booking area in which the public toilet is located is 37 inches wide and is formed by concrete block walls on 3 sides. Within 60 days of the effective date of this agreement, the Butte County Commissioners shall develop a policy for providing alternate accessible toilet facilities for persons with mobility impairments who cannot access the existing facilities and submit it to the Department for review. The alternate facility must be available 24 hours a day 7 days a week and must be within a reasonable distance of the Sheriff's Office. Upon approval by the Department, the Sheriff shall include the policy in the Sheriff's Office's protocol manual.
22. BUTTE COUNTY FAIRGROUNDS
The Butte County Commissioners shall complete the following alterations at the Butte County Fairgrounds within one year of the effective date of this Agreement.
There is a 4 inch change in level at the entrance door to the toilet rooms. Alter this step by installing a ramp with a slope no greater than 1:12 and with level maneuvering space at the door, within 7 months of the effective date of this Agreement. §§ 4.13.8, 4.5.2, 4.8, 4.13.6, Fig. 25.
23. BUTTE COUNTY NURSE'S OFFICE
The Butte County Commissioners shall complete the following alterations at the Butte County Nurse's Office within one year of the effective date of this Agreement.
a. There is a 1 inch change in elevation at the threshold of the building's entrance door. Alter this threshold so that the change is no greater than 1/4 inch or 1/2 inch and beveled with a slope no greater than 1:2, within 7 months of the effective date of this Agreement. §§ 4.13.8, 4.5.2, 4.8.
b. There is no designated accessible parking space in the parking lot that is on the accessible route from the building. Demarcate a space to conform to the Standards and provide at least one van-accessible parking space served by an access aisle at least 96 inches wide and identified by a van-accessible sign mounted below the symbol of accessibility, within 3 months of the effective date of this Agreement, within 1 month of the effective date of this Agreement. §§ 4.1.2(5)(b), 4.6.3, 4.6.4.
IMPLEMENTATION AND ENFORCEMENT
24. 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, the County will submit written reports to the Department summarizing the actions the County 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.
25. If at any time the County 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.
26. 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 County 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 County, 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 commence proceedings to suspend or terminate its financial assistance to the County.
27. 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.
28. In the event that the County fails to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department as 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 commence proceedings to suspend or terminate its financial assistance to the County.
29. 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 County or the Department on request.
30. The effective date of this Agreement is the date of the last signature below.
31. 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 County's continuing responsibility to comply with all aspects of the ADA.
32. This Agreement will remain in effect for five years from the effective date of this Agreement, or until the parties agree that full compliance with this Agreement by the County has been achieved.
33. The person signing for Butte County represents that he is authorized to bind Butte County to this Agreement.
| For Butte County: | For the United States: |
|
Date ______________________ |
WILLIAM R. YEOMANS, By:__________________________ JOHN L. WODATCH, Chief Date ______________________ |
NOTICE
UNDER THE
AMERICANS WITH
DISABILITIES ACT
In accordance with the requirements of title II of the Americans with Disabilities Act of 1990, Butte County, South Dakota (County) will not discriminate against qualified individuals with disabilities on the basis of disability in the County's services, programs, or activities.
The County does not discriminate on the basis of disability in its hiring or employment practices. The County will not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position. The County will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the County's business. To the extent its selection criteria for employment decisions have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
The County will provide appropriate auxiliary aids and services, including qualified sign language interpreters and assistive listening devices, whenever necessary to ensure effective communication with members of the public who have hearing, sight, or speech impairments, unless to do so would result in a fundamental alteration of its programs or an undue administrative or financial burden. A person who requires an accommodation or an auxiliary aid or service to participate in a County program, service, or activity, should contact the office of _______________, the ADA Coordinator, at ________________ as far in advance as possible but no later than 48 hours before the scheduled event.
The County will not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the cost of providing auxiliary aids/services or reasonable modifications of policy, such as retrieving items from locations that are open to the public but are not accessible to persons who use wheelchairs.
July 2001
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