DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-84-26
This Settlement Agreement is entered into by McDowell County, West Virginia (the "County") and the United States of America, through the United States Department of Justice, Civil Rights Division, Disability Rights Section (the "Department of Justice").
A complaint was filed under title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, with the Department of Justice against the County, alleging, inter alia, that the McDowell County Commissioner's Office (the "Commissioner's Office"), Sheriff's Department, Courthouse Annex, and County Courthouse ( the "Courthouse") are inaccessible to individuals with mobility impairments. In particular, the complaint alleges that the entrance to the Sheriff's Department is inaccessible because it is currently only accessible by three steps.
Section 35.150(a) of the Department of Justice's title II implementing regulation requires that a public entity operate each of its programs so that, when viewed in its entirety, the program is readily accessible to and usable by individuals with disabilities. Section 35.150(b) lists a number of methods that a public entity can use to make its programs accessible. These methods include reassignment of programs and services to accessible buildings, assignment of aides to beneficiaries, home visits, and alteration of existing facilities.
The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate fully the allegations of the complaint in this matter, to determine compliance with title II of the ADA and the Department of Justice's implementing regulation, to issue findings, and where appropriate, to negotiate and to secure voluntary compliance agreements. The Attorney General is authorized, under 42 U.S.C. § 12133, to bring civil action enforcing title II of the ADA should the Department of Justice fail to secure voluntary compliance pursuant to Subpart F. The Department conducted an on-site visit of the Commissioner's Office, Sheriff's Department, Courthouse Annex, and Courthouse on December 15, 1997, and found several barriers to access to the facilities.
THEREFORE, the County and the United States, desiring to resolve this matter without resort to litigation, agree to the following voluntary compliance agreement:
1. The ADA applies to the County because it is a public entity as defined in the Department of Justice's regulation implementing title II of the ADA. 28 C.F.R. ß 35.104.
2. In consideration of the County's performance of its obligations under this Settlement Agreement, the Department of Justice agrees to refrain from undertaking further investigation of the portion of Complaint No. 204-84-26 alleging that the Commissioner's Office, Sheriff's Department, Courthouse Annex, and Courthouse are physically inaccessible to persons with mobility impairments and to refrain from filing a civil suit arising from its investigation of this portion of Complaint No. 204-84-26. Other allegations included in Complaint No. 204-84-26 are addressed separately and are beyond the scope of this Agreement.
3. The County agrees that the various services, programs, and activities that it provides to the public at the Commissioner's Office, Sheriff's Department, Courthouse Annex, and Courthouse shall be made accessible to all qualified individuals with disabilities.
4. The County will complete the following physical modifications in the Commissioner's Office by September 1, 1998, in order to make the Commissioner's Office accessible:
a) the County will modify the path of travel leading into the Commissioner's Office in the following ways:
(1) the lip at the outer entrance door of the Office will be removed so that the path of travel between the exterior route and the entrance is flush;
(2) the clear opening width of the inner door at the entrance to the Office will be increased to at least 32 inches and the opening force required to open this door will be adjusted so that it does not exceed 5 lbf;
b) the men's and women's toilet rooms will be modified in the following ways to make them accessible:
(1) the clear opening widths of the entrance doors leading into the toilet rooms will be increased to at least 32 inches, the dimensions of each toilet room will be increased to be at least 66 inches deep by 48 inches wide, the centerline of each toilet will be adjusted to be exactly equal to 18 inches to the closest wall, and grab bars that comply with the Standards for Accessible Design (the "Standards") will be installed in each toilet room;
(2) the mirrors in each toilet room will be adjusted so that the bottom edge of the reflecting surfaces are no more than 40 inches above the floor;
(3) the height of the lavatories in each toilet room will be modified to provide a knee clearance of at least 29 inches from the finish floor to the bottom of the lavatory apron;
(4) the lavatory faucet controls in each toilet room will be modified so that they do not require tight grasping, pinching, or twisting of the wrist to operate;
(5) the paper towel dispensers will be adjusted to not exceed heights of 48 inches;
c) the water fountain will be modified in the following ways:
(1) a clear floor space of at least 30 inches by 48 inches will be provided in front of the water fountain in order to allow a person using a wheelchair to make a parallel approach;
(2) the height of the water fountain will be adjusted so that the distance from the spout outlet to the ground surface does not exceed 36 inches.
5) The County will complete the following physical modifications in the Sheriff's Department by September 1, 1998, in order to make the Sheriff's Department accessible:
a) the parking and the exterior route leading to the Sheriff"s Department will be modified in the following ways:
(1) a designated accessible parking space will be installed so that it is located on the shortest accessible route of travel to the Sheriff's Department entrance from the adjacent parking lot. The parking space will be "van accessible" so that it is 96 inches wide, will be designated with compliant signage, and will have an adjacent 96 inch access aisle. The parking space and access aisle will be made level with surface slopes not to exceed 2% in all directions;
(2) an accessible path of travel that complies with the Standards will be provided from the van accessible parking space to the Sheriff's Department entrance;
(3) the entrance to the Sheriff's Department will be modified to provide the minimum required maneuvering clearance (12 inches from the latch side is required for a front approach and 24 inches is required for a latch side approach);
(4) the hardware on the Sheriff's Department entrance door will be modified so that it is operable without tight grasping, pinching, or twisting of the wrist;
b) the toilet room will be modified in the following ways to make it accessible:
(1) the dimensions of the toilet room will be increased to be at least 66 inches deep and 48 inches wide, the centerline of the toilet will be adjusted to be equal to 18 inches from the closest wall, and the length of the side grab bar will be increased to 42 inches;
(2) the toilet paper dispenser will be repositioned to be below the side grab bar;
(3) the mirror will be adjusted so that the bottom edge of the reflecting surface is not more than 40 inches above the floor;
(4) the height of the lavatory will be modified to provide a knee clearance of at least 29 inches from the finish floor to the bottom of the lavatory apron;
(5) the lavatory faucet controls will be modified so that they do not require tight grasping, pinching, or twisting of the wrist to operate;
c) the water fountain will be modified in the following ways:
(1) a clear floor space of at least 30 inches by 48 inches will be provided in front of the water fountain in order to allow a person using a wheelchair to make a parallel approach;
(2) the height of the water fountain will be adjusted so that the distance from the spout outlet to the ground surface does not exceed 36 inches.
6) The County will complete the following physical modifications in the Courthouse Annex by October 1, 1998, in order to make it accessible:
a) the exterior route leading to the Courthouse Annex will be modified in the following ways:
(1) the slope of the ramp leading to the building entrance will be modified to not exceed 1:12. A level landing at least 60 inches by 60 inches will also be provided where the ramp changes direction;
(2) handrails will be provided along both sides of the ramp segments. The handrails will be modified so they are continuous and gripable and so they extend at least 12 inches beyond the top and bottom of the ramp segments;
b) the interior of the Courthouse Annex will be modified in the following ways:
(1) an accessible path of travel complying with the Standards will be provided into the witness box;
(2) the clear opening width of the entrance to the jury room will be increased to at least 32 inches;
(3) an accessible toilet room that fully complies with the Standards will be installed;
(4) a clear floor space of at least 30 inches by 48 inches will be provided in front of the water fountain in order to allow a person using a wheelchair to make a parallel approach and a clear knee space of at least 27 inches between the floor surface and the bottom of the fountain apron will be provided.
7) The County will complete the following physical modifications in the Courthouse by September 1, 1998, in order to provide access:
a) the exterior route leading to the Courthouse will be modified in the following ways:
(1) the slope of the ramp leading to the building entrance will be modified to not exceed 1:12;
(2) the ramp handrails will be modified so they are rounded and will return smoothly either to the ground or post;
b) the toilet room will be modified in the following ways to make it accessible:
(1) the toilet will be repositioned so its centerline to the closest wall will be equal to 18 inches and grab bars will be installed that comply with the Standards;
(2) the toilet paper dispenser will be repositioned so that it is not more than 36 inches from the back wall and so that it is 33-36 inches above the floor surface;
(3) the mirror will be adjusted so that the bottom edge of the reflecting surface is not more than 40 inches above the floor;
(4) the height of the lavatory will be modified to provide a knee clearance of at least 29 inches from the finish floor to the bottom of the lavatory apron;
(5) the lavatory faucet controls will be modified so that they do not require tight grasping, pinching, or twisting of the wrist to operate;
(6) the paper towel dispenser will be adjusted to not exceed a height of 48 inches;
c) the pay telephone will be modified in the following ways to make it accessible:
(1) the current location of the telephone and the objects surrounding it will be adjusted to provide a sufficient amount of clear floor space as required by the Standards for an individual using a wheelchair to make a forward or side approach;
(2) the height of the telephone from the floor surface to the coin slot will be adjusted to either 48 inches if a forward approach to the telephone is provided or 54 inches if a side approach is provided;
(3) a telephone with volume control will be provided;
d) the following modifications within the Courthouse will also be made:
(1) the water fountain will be adjusted so that the height from the floor surface to the spout outlet does not exceed 36 inches;
(2) the doors at the entrance to the County Tax Assessor's Office will be replaced so the clear opening width of one leaf is at least 32 inches.
8. By July 31, 1998, the County will adopt the following policy in order to provide program access to the courtroom on the second floor of the Courthouse:
In accordance with the requirements of title II of the Americans with Disabilities Act of 1990, court proceedings or other local government programs taking place in the courtroom on the third floor of the McDowell County Courthouse will be moved to the accessible courtroom in the Courthouse Annex upon the request of a person with a disability. Such a request to relocate a hearing on the basis of physical accessibility for any court participant, juror, or spectator will be granted if requested before the proceeding begins. Requests made after the beginning of a proceeding will be granted if possible. Any individual with a disability needing to request relocation of a proceeding or program, requiring information, or needing assistance, should contact [name, room and telephone numbers], for additional information.
In order to publicize this policy to members of the public, this policy will be posted outside each office on the first floor of the Courthouse and next to each courtroom in all County buildings by September 1, 1998. It will also be included with all notices of proceedings or meetings scheduled for the third floor courtroom. All officials involved in the Courts, including all judges, clerks, and bailiffs will receive instruction on this policy by September 1, 1998.
9. By July 31, 1998, the County will adopt the following policy in order to provide program access to the Clerk of the Circuit Court's office on the second floor of the Courthouse and the Land Department located in the basement of the Courthouse:
In accordance with the requirements of title II of the Americans with Disabilities Act of 1990, McDowell County will relocate the programs, activities, and services provided by the Clerk of the Circuit Court located on the second floor and the Land Department located in the basement to an accessible location upon the request of a person with a disability. Staff of these offices will meet people on the first floor of the Courthouse, outside the building in their vehicles, or in other accessible spaces. Any individual with a disability needing to request such a relocation, requiring information, or needing assistance, should contact [name, room and telephone numbers], for additional information.
In order to publicize this policy to members of the public, this policy will be posted outside each office located on the first floor of the County courthouse by September 1, 1998. All employees who work in the Clerk of the Circuit Court's office and in the Land Department will receive instruction on this policy by September 1, 1998.
10. All notices issued by the County after September 1, 1998, regarding programs, activities, or services taking place in the McDowell County Courthouse will include the following notice:
Any individual with a disability needing to request relocation of a proceeding, program, activity, or service taking place in the McDowell County Courthouse; requiring information; or needing assistance should contact (name, room and telephone numbers) for additional information.
11. The County will submit documentation (photos, written certification, etc.) of all the physical and policy modifications made pursuant to steps 4-10 (except step 6) listed above to the Department by September 15, 1998. The County will submit documentation of all the physical modifications made pursuant to step 6 to the Department by October 15, 1998.
12. If the Department of Justice determines that this Settlement Agreement or any requirement thereof has been violated, it may re-open its investigation of McDowell County under title II of the ADA or institute a civil action seeking specific performance of the provisions of this Settlement Agreement and other appropriate relief in any appropriate Federal court.
13. Failure by the Department of Justice to enforce the entire Settlement Agreement, or any provision thereof, shall not be construed as a waiver of the Department of Justice's right to enforce other deadlines and provisions of this Settlement Agreement.
14. This Settlement Agreement is a public document. A copy of this Settlement Agreement or any information contained in it may be made available to any person by the County or the Department of Justice on request.
15. The effective date of this Settlement Agreement is the date of the last signature below.
16. This Settlement 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 Settlement Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law. This Settlement Agreement does not affect the County's continuing responsibility to comply with all aspects of the ADA.
For the United States:
_____________________________________
Bill Lann Lee, Acting Assistant
Attorney General for Civil Rights
John L. Wodatch, Chief
Eve Hill, Attorney
Robb Wolfson, Investigator
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
Date: _______________________________
For
McDowell County:
_____________________________________
Date:_________________________
February 7, 2001