BACKGROUND
SCOPE OF THE INVESTIGATION
This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, with the United States Department of Justice (“Department”) against the City of Folly Beach, South Carolina (“City”). 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 E. The complainant alleged that several of the City’s facilities are inaccessible to persons with mobility impairments. Because the City receives financial assistance from the Department of Justice, the investigation was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department’s implementing regulation, 28 C.F.R. Part 42, Subpart G.
JURISDICTION
1. The ADA applies to the City 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 determine the compliance of the City with title II of the ADA and the Department's implementing title II regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 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 authorized under 28 C.F.R. Part 42, Subpart G, to determine the City’s compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the City provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
4. The parties to this Agreement are the United States of America and the City of Folly Beach, South Carolina.
5. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.
6. In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled “Enforcement and Implementation.”ACTIONS TAKEN BY THE CITY
7. The City conducted a self-evaluation in 1992 in order to ensure that the programs offered at City facilities are readily accessible to and usable by individuals with mobility impairments.
8. The City allots $5,000.00 each year for the creation and maintenance of accessible features in Folly Beach.
9. The City’s ADA Coordinator is certified in Universal Design and other City staff have also been trained in these areas.
10. The City informs citizens of their rights and the City’s obligations under title II of the ADA through notices posted in its buildings and its publications.
11. The City appointed an ADA Coordinator in 1993, established a grievance procedure that includes time frames for the filing and resolution of complaints and an appeal process to the City Administrator in 1994, and completed a self-evaluation and transition plan in 1996.
12. The City’s Public Safety Department is equipped with a TTY system for emergency communications with persons who are hearing or speech impaired.
13. The City maintains three additional TTY telephone lines for non-emergency communications: one in the office of the ADA Coordinator, one in the Library, and one in the Adult and Community Education Building.
14. Even though the front door to City Hall was compliant under the ADA, the City, on its own, replaced said door with one that is easier for individuals with disabilities to operate.
15. The City has expanded public access to the Community Center by replacing front and side doors and adding accessible features in the toilet rooms.
16. The City diligently tries to address all ADA complaints which it receives. For example, when trees blocked access to the sidewalk to City Hall, the City reconstructed the sidewalk around the trees to make it easier for individuals using wheelchairs to access City Hall.
17. Each year the City checks all walkovers, with designated accessible walkovers taking priority, to make sure they are accessible and do not have rough handrails or any other feature that would make it difficult to access the beach.
18. This fiscal year, the City will make improvements to the parking at the accessible walkover.
19. The City is in the process of developing a passive park located on Folly River which will have accessible toilet rooms (85% completed), accessible picnic tables, and walking trails which will be accessible. This park is being developed so all people can enjoy it equally.
20. The City is proud of the progress it has made and its on-going commitment regarding the community’s accessibility for persons with disabilities. The City also is committed to having the deficiencies outlined in this Agreement corrected within the time period specified.REMEDIAL ACTION
21. The elements or features of the City’s facilities that do not comply with the Standards, including those listed in this section, prevent persons with disabilities from fully and equally enjoying the City’s services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.
22. The City will comply with the cited provisions of the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A when taking the actions required by this Agreement.
Newly Constructed Facilities: In order to ensure that the following spaces and elements in Folly Beach for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, Folly Beach will take the following actions within 15 months of the effective date of this Agreement:TOWN HALL - MEN’S TOILET ROOM
23. The rear grab bar is 24 inches long. Provide a rear grab bar that is at least 36 inches long with the end closer to the side wall mounted no more than 6 inches from the side wall. §§ 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(a), (c), (d), 4.26.
24. The toilet paper dispenser is located 15 inches above the finished floor. Provide a dispenser that it is located below the grab bar with its farthest edge no more than 36 inches from the back wall and with its centerline no less than 19 inches above the finished floor. §§ 4.1.3(11), 4.22.4, 4.17.3 & Fig. 30(d).
25. The height of the lavatory counter is 37 3/4 inches above the finished floor at the rim. Provide a lavatory with a counter/rim height that is no more than 34 inches above the finished floor, with a clearance of at least 29 inches above the finished floor to the bottom of the apron, and a knee clearance that is at least 8 inches deep and 27 inches above the finished floor. §§ 4.1.3(11), 4.22.6, 4.19.2 & Fig. 31.
26. The mirror in the toilet room is mounted so that the bottom edge of the reflecting surface is 45 1/2 inches above the finished floor and exceeds the maximum allowable height for a person using a wheelchair. Provide a mirror that is mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finished floor. §§ 4.1.3(11), 4.22.6, 4.19.6 & Fig. 31.TOWN HALL - WOMEN’S TOILET ROOM
27. The rear grab bar is 24 inches long. Provide a rear grab bar that is at least 36 inches long with the end closer to the side wall mounted no more than 6 inches from the side wall. §§ 4.1.3(11), 4.22.4, 4.17.6 & Fig. 30(a), (c), (d), 4.26.
28. The toilet paper dispenser is located 15 inches above the finished floor. Provide a dispenser that it is located below the grab bar with its farthest edge no more than 36 inches from the back wall and with its centerline no less than 19 inches above the finished floor. §§ 4.1.3(11), 4.22.4, 4.17.3 & Fig. 30(d).
29. The height of the lavatory counter is 37 3/4 inches above the finished floor at the rim. Provide a lavatory with a counter/rim height that is no more than 34 inches above the finished floor, with a clearance of at least 29 inches above the finished floor to the bottom of the apron, and a knee clearance that is at least 8 inches deep and 27 inches above the finished floor. §§ 4.1.3(11), 4.22.6, 4.19.2 & Fig. 31.
30. The mirror in the toilet room is mounted so that the bottom edge of the reflecting surface is 45 1/2 inches above the finished floor and exceeds the maximum allowable height for a person using a wheelchair. Provide a mirror that is mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finished floor. §§ 4.1.3(11), 4.22.6, 4.19.6 & Fig. 31.
31. The toilet flush value control is on the closed, or narrow, side of the toilet stall. Provide a flush valve control that is on the open, or wide side of the toilet stall, or provide an automatic flush device. §§ 4.1.3(11), 4.22.4, 4.16.5.TOWN HALL - DISPATCH ROOM
32. The entrance door does not provide the required minimum accessible clearance. Provide at least 18 inches of clearance or some other means of accessible access. §§ 4.1.3(7), 4.13.6, Fig. 25.
Program Access in Existing Facilities: In order to ensure that each of Folly Beach’s programs, services, and activities operating at facilities that are the subject of this Agreement, when viewed in their entirety, are readily accessible to and usable by persons with disabilities, Folly Beach will take the following actions within 15 months of the effective date of this Agreement:COMMUNITY CENTER AND COMMUNITY PARK - PARKING
33. No designated van accessible parking spaces are provided at the approximately 20 space parking area/lot. Provide one 96-inch wide, clearly demarcated, designated van accessible parking space. Provide one 96-inch wide, clearly demarcated, access aisle adjacent to the designated van-accessible parking space. The designated accessible parking space and access aisle shall be level with surface slopes not exceeding 1:50 (2%) in all directions. Provide one sign depicting the symbol of accessibility, and one sign designating the parking space as “van-accessible” mounted below the symbol of accessibility at the designated van-accessible parking space. Signs shall be mounted at such a height that they cannot be obscured by a vehicle parked in the parking space. §§ 4.1.2(5), 4.6.4, 4.6.3 & Fig. 9, 4.30.7(1).
34. The flared sides of the built up curb ramp exceed the maximum allowable slope of 1:10. Provide a built up curb ramp such that the slope of the flared sides does not exceed 1:10, and no portion of the curb ramp projects into vehicular traffic lanes of parking spaces. §§ 4.7.5, 4.7.6 & Fig. 13.COMMUNITY CENTER - UNISEX TOILET ROOM
35. The toilet room sign mounted on the toilet room door is not accessible. Provide a sign with raised characters and Braille mounted on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finished floor and such that a person can approach to within 3 inches of the signage without encountering obstructions or standing within a door swing. § 4.30.6.
36. The pressure required to open the door exceeds the maximum allowable opening force. Provide a door that requires no more than 5 pounds of force to open. § 4.13.11(2)(b).
37. The designated accessible stall 48 inches by 69 inches and the centerline of the toilet is located 23 inches from the side wall. Provide a toilet so that the centerline is exactly 18 inches from one side wall (or support) and the total width of the stall is at least 48 inches. § 4.17.3 & Fig. 30(a).COMMUNITY CENTER - REAR ENTRANCE
38. The automatic doors at the rear entrance are not protected. Provide guide rails on the swing side of each door that project at least to the leading edge of the widest door in the fully open position. § 4.13.12
OCEAN PARK PAVILION - RAMP
39. The gripping surface of the ramp handrails exceeds 1 1/2 inches and is made of treated lumber, the inside handrail on the switchback is not continuous, and handrail extensions are not provided at the top and bottom of ramp segments. Provide handrails that are free of any sharp or abrasive elements, with a gripping surface width or diameter of 1 1/4 to 1 1/2 inches, or in a shape that provides an equivalent gripping surface; provide a continuous inside handrail; and, provide handrail extensions that project at least 12 inches beyond the top and bottom ramp segments and which are parallel with the floor or ground surface. §§ 4.8.5, 4.26.2, 4.26.4.
OCEAN PARK PAVILION - MEN’S TOILET ROOM
40. The toilet room sign mounted on the door is not accessible. Provide a sign with raised characters and Braille, mounted on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finished floor and such that a person can approach to within 3 inches of the signage without encountering obstructions or standing within a door swing. § 4.30.6.
41. The pressure required to open the toilet room door exceeds the maximum allowable opening force. Provide a door that requires no more than 5 pounds of force to open. § 4.13.11(2)(b).
42. The toilet flush value control is on the closed, or narrow side of the toilet stall. Provide a flush valve control that is on the open, or wide side of the toilet stall, or provide an automatic flush device. § 4.16.5.
43. The coat hook in the toilet stall designated for persons with disabilities is not accessible. Provide a hook that is no more than 54 inches above the finished floor for a side reach or 48 inches above the finished floor for a front reach. §§ 4.25.3, 4.2.5, 4.2.6.
44. The lavatory provides no knee clearance. Provide a lavatory that has a clearance of at least 29 inches above the finished floor to the bottom of the apron and a knee clearance that is at least 8 inches deep and 27 inches above the finished floor. Upon exposing the underside of the lavatory, insulate or otherwise configure the hot water and drain pipes to protect against contact. §§ 4.19.2, 4.19.4, & Fig. 31.OCEAN PARK PAVILION - WOMEN’S TOILET ROOM
45. The toilet room sign mounted on the toilet room door is not accessible. Provide a sign with raised characters and Braille, mounted on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finished floor and such that a person can approach to within 3 inches of the signage without encountering obstructions or standing within a door swing. § 4.30.6.
46. The pressure required to open the toilet room door exceeds the maximum allowable opening force. Provide a door that requires no more than 5 pounds of force to open. § 4.13.11(2)(b).
47. The coat hook in the toilet stall designated for persons with disabilities is not accessible. Provide a hook that is no more than 54 inches above the finished floor for a side reach or 48 inches above the finished floor for a front reach. §§ 4.25.3, 4.2.5, 4.2.6.
48. The lavatory provides no knee clearance. Provide a lavatory that has a clearance of at least 29 inches above the finished floor to the bottom of the apron and a knee clearance that is at least 8 inches deep and 27 inches above the finished floor. Upon exposing the underside of the lavatory, insulate or otherwise configure the hot water and drain pipes to protect against contact. §§ 4.19.2, 4.19.4, & Fig. 31.IMPLEMENTATION
49. Within eighteen months after the effective date of this Agreement, the City shall provide the Department with evidence that the City has taken the actions specified in paragraphs 12 - 35 of this Agreement. The evidence will include a report with detailed photographs showing measurements and architectural plans or work orders.
50. Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the City will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).ENFORCEMENT
51. If at any time the City desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval shall not be unreasonably withheld or delayed.
52. The Department may review compliance with this Agreement at any time. If the Department believes that the City has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the City in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the City, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.
53. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the City to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
54. 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.
55. This Agreement is a public document. A copy of this document or any information contained in it will be made available to any person by the City or the Department on request.
56. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments), 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 City’s continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
57. 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 City has been achieved.
58. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.
59. The effective date of this Agreement is the date of the last signature below.
For the City of Folly Beach, South
Carolina:For the United States:
By:_________________________________
TONI W. CONNOR-ROOKS,
City Administrator
Date:__________9/12/03________________
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Divison
By:_________________________________
JOHN L. WODATCH, Chief
MARY LOU MOBLEY, Acting Deputy Chief
ELIZABETH BACON, Supervising Attorney
SUSAN GEIPE QUINN, Investigator
ELIZABETH BRZEZOWSKI,Investigative Assistant
MICHELE ANTONIO MALLOZZI, Architect
U.S. Department of JUstice
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue., N.W.
Disability Rights Section
Washington , DC 20530
Date:_______10/17/03__________________
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March 25, 2004