BACKGROUNDA. 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 Mobile, Alabama (“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 F. The complainant alleges that several City facilities are not accessible to individuals with disabilities. The Department focused its investigation on the Mobile Convention Center and Government Plaza.
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.B. 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 investigate the complaint in this matter to determine the compliance of the City with title II of the ADA and the Department's title II implementing 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 investigate the complaint in this matter 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, 42.108-110, to suspend or terminate financial assistance to the City 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.REMEDIAL ACTION
4. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from filing a civil suit in this matter except as provided in the "Implementation and Enforcement" section of this Agreement.
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 the requirements for newly constructed buildings and facilities. See 28 C.F.R. §§ 35.150(b)(1), 35.151. The Standards appear at 28 C.F.R. Part 36, Appendix A.A. PHYSICAL CHANGES
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 disabilities, the City shall take the following actions.
6. The City will make the following modifications to Government Plaza within one year of the effective date of this Agreement:a. Men's and Women's Toilet Rooms (6,8,9, and 10th Floors of the South Tower)
(1) The height of the lavatory counter in each toilet room is 36 1/2 inches above the finished floor. Provide a lavatory counter in each room that is no more than 34 inches above the finished floor. Standards §§ 4.1.3(11), 4.19.2 & Fig. 31.
(2) The side grab bar in the designated accessible toilet stall in each toilet room is 36 inches long. In each, provide a side grab bar that is at least 40 inches long. Standards §§ 4.1.3(11), 4.17.6 & Fig. 30(d), 4.26.
(3) The centerline of the toilet in the designated accessible stall in each toilet room is 15 inches from the side wall. In each, provide a toilet with the centerline exactly 18 inches from the side wall. Standards §§ 4.1.3(11), 4.17.3, Fig. 30(a).
(4) The top of the toilet seat in the designated accessible stall in each toilet room is 20 1/2 inches above the finished floor. In each, provide a toilet with the top of the seat between 17 and 19 inches above the finished floor. Standards §§ 4.1.3(11), 4.16.3, 4.17.3, Fig. 30(a).
(5) There is no visual alarm appliance located in any of the toilet rooms. In each, provide visual alarm appliances that comply with the Standards. Standards §§ 4.1.3(11), 4.28.3.
(6) The coat hook in each toilet room is located 60 inches above the finished floor. Provide a coat hook in each room that is no more than 54 inches for a front approach, or 48 inches for a side approach, above the finished floor. Standards §§ 4.1.3(12)(a), 4.2.5, Fig. 5(a), 4.2.6, Fig. 6(b), 4.25.3.b. Men's Toilet Rooms (6,8,9, and 10th Floors of the South Tower)
(1) In each men's toilet room, the rim of the wall-mounted urinal is 20 inches above the finished floor. In each, provide one urinal with an elongated rim no more than 17 inches above the finished floor, that is designated for people with disabilities. Standards §§ 4.1.3(11), 4.18.2.
(2) In each men's toilet room, the clear floor space in front of the urinal (between dividers) is 28 1/2 inches wide. In each men's toilet room, provide clear floor space in front of one urinal that measures at least 30 inches wide by 48 inches deep (centered on the urinal). Standards §§ 4.1.3(11), 4.18.3.c. Ground Floor
(1) Atrium Service Counter
The top of the Atrium Service Counter is 42 1/2 inches above the finished floor. Provide a portion of a counter that is at least 36 inches in length and no more than 36 inches above the finished floor; or provide an auxiliary counter that is at least 36 inches in length, with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). Standards
§ 7.2(2).(2) Accessible Family Toilet Room
(a) There is no visual alarm appliance located in the toilet room. Provide a visual alarm appliance in the room that complies with the Standards. Standards §§ 4.1.3(11), 4.28.3.
(b) The centerline of the toilet in the room is 25 inches from the side wall. Provide a toilet in the room with the centerline exactly 18 inches from the side wall. Standards §§ 4.1.3(11), 4.16.2 & Fig. 28.(3) Men and Women Toilet Rooms (South Tower)
(a) There are no visual alarm appliances located in either toilet room. Provide a visual alarm appliance in each room that complies with the Standards. Standards §§ 4.1.3(11), 4.28.3.
(b) The coat hook in each room is located 66 1/2 inches above the finished floor. Provide a coat hook in each room that is no more than 54 inches for a front approach, or 48 inches for a side approach, above the finished floor. Standards §§ 4.1.3(12)(a), 4.2.5, Fig. 5(a), 4.2.6, Fig. 6(b), 4.25.3.(4) Drinking Fountain
The spout outlet height is 38 1/2 inches above the finished floor. Provide a fountain with a spout no more than 36 inches above the finished floor that is accessible to a person in a wheelchair and a fountain that is accessible to persons who have difficulty bending and stooping. Standards §§ 4.1.3(10)(a), 4.15.2.
d. South Tower
(1) Third Floor (Land Use Administration Department)
The tops of the Land Use Administration Department Service Counter, Building Permits Department Service Counter, and Engineering Department Service Counter are all 42 inches above the finished floor. Provide a portion of a counter in each department that is at least 36 inches in length and no more than 36 inches above the finished floor; or provide an auxiliary counter that is at least 36 inches in length, with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). Standards § 7.2(2).
(2) Tenth Floor
a. The top of the Receptionist Area Service Counter is 41 inches above the finished floor. Provide a portion of a counter that is at least 36 inches wide and no more than 36 inches above the finished floor. Standards § 7.2(2).
b. The spout outlet height is 39 inches above the finished floor. Provide a fountain with a spout no more than 36 inches above the finished floor that is accessible to a person in a wheelchair and a fountain that is accessible to persons who have difficulty bending and stooping. Standards §§ 4.1.3(10)(a), 4.15.2.e. North Tower
(1) Second Floor
a. The counter at the Municipal Court Payment Window is 43 1/2 inches above the finished floor. Provide a portion of a counter at the window that is at least 36 inches in length and no more than 36 inches above the finished floor; or provide an auxiliary counter that is at least 36 inches in length, with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). Standards § 7.2(2).
b. None of the 2nd floor court rooms have wheelchair seating areas. In each court room, provide a wheelchair seating area that complies with the Standards. Standards §§ 4.1.3(19)(a), 4.33.1, 4.33.2, 4.33.3, 4.33.4.f. Basement Men's Dressing Room Shower Stall
(1) The 36 inch by 36 inch transfer shower stall has a 4 1/2 inch curb. Provide a shower stall with a curb no higher than 1/2 inch. Standards §§ 4.1.3(11), 4.21.7.
(2) The shower stall has a fixed shower head that is 64 inches above the finished floor. Provide a portable shower spray unit that complies with the Standards. Standards §§ 4.1.3(11), 4.21.6.7. The City will make the following modifications to Mobile Convention Center within one year of the effective date of this Agreement:
a. Parking Areas
(1) The two parking areas (the Underground Garage, and the adjacent Parking Garage) do not have proper signage designating parking spaces for individuals with disabilities. Provide signs at each accessible space, using the International Symbol of Accessibility, located so that the signs cannot be obscured by a vehicle parked in the space. Standards §§ 4.1.2(5)(a), 4.6.4, 4.30.7(1).
(2) The Underground Garage has 8 designated accessible parking spaces, but does not have the required van-accessible parking space. Provide at least one 96 inch wide parking space served by an access aisle at least 96 inches wide, with a sign designating the space as "van-accessible" mounted below the International Symbol of Accessibility in a location that cannot be obscured by a vehicle parked in the space. Standards §§ 4.1.2(5)(a)&(b), 4.6.3 & Fig.9, 4.6.4.
(3) The adjacent Parking Garage has 1,500 parking spaces. Provide 25 accessible parking spaces, including 4 van-accessible parking spaces, that comply with the Standards, including the requirement for 96 inch wide access aisles for the van-accessible spaces and 60 inch wide access aisles for the others. Standards §§ 4.1.2(5), 4.6, 4.30.7(1).b. External Elevator
The elevator has no exterior visual or audible signals. Provide exterior visual and audible signals, on each level served by the elevator, that comply with the Standards. Standards §§ 4.1.3(5), 4.10.4, 4.10.7.
c. Second Level
(1) Concession Stand
The Stand, which provides over-the-counter service, has a service counter that is 45 inches above the finished floor. Provide a portion of the counter that is at least 36 inches in length and is no more than 36 inches above the finished floor. Standards § 7.2(1).
(2) Women's Toilet Room
(a) The toilet room has 10 stalls, including a "standard" stall designated for people with disabilities, but does not have the required additional ambulatory stall. Provide a 36 inch wide stall with an outward swinging, self-closing door and parallel grab bars. Standards §§ 4.1.3(11), 4.22.4, & Fig. 30(d), 4.16, 4.26.
(b) The height of the lavatory counter in the toilet room is 35 inches above the finish floor. Provide a lavatory counter in the room that is no more than 34 inches above the finish floor. Standards
§§ 4.1.3(11), 4.19.2 & Fig. 31.
(c) The knee clearance at the lavatory is 7 inches. Provide a lavatory with knee clearance of no less than 8 inches. Standards
§§ 4.1.3(11), 4.19.2 & Fig. 31.(3) Men's Toilet Room
(a) The centerline of the toilet in the stall designated for people with disabilities is 16 inches from the side wall. Provide a toilet in the stall with the centerline exactly 18 inches from the side wall. Standards §§ 4.1.3(11), 4.17.3, Fig. 30(a).
(b) The flush control on the toilet in the stall designated for people with disabilities is located on the narrow side of the area. Provide a flush control that is located on the open, or wide side of the toilet area, or provide an automatic flush device. Standards §§ 4.1.3(11), 4.22.4, 4.16.5, 4.17.2.
(c) The coat hook in the stall designated for people with disabilities is broken. Provide an adequate coat hook in the stall that is no more than 54 inches for a front approach, or 48 inches for a side approach, above the finished floor. Standards §§ 4.1.3, 4.2.5, Fig. 5(a), 4.2.6, Fig. 6(b), 4.25.3.
(d) The height of the lavatory counter in the toilet room is 35 inches above the finished floor. Provide a lavatory counter in the room that is no more than 34 inches above the finished floor. Standards
§§ 4.1.3(11), 4.19.2 & Fig. 31.
(e) The knee clearance at the lavatory is 7 inches. Provide a lavatory with knee clearance of no less than 8 inches. Standards §§ 4.1.3(11), 4.19.2 & Fig. 31.d. Third Level
(1) Women's Toilet Room #1
(a) The toilet room has 11 stalls, including a "standard" stall designated for people with disabilities, but does not have the additional required ambulatory stall. Provide a 36 inch wide stall with an outward swinging, self-closing door and parallel grab bars. Standards §§ 4.1.3(11), 4.22.4, & Fig. 30(d), 4.16, 4.26.
(b) The centerline of the toilet in the "standard" stall designated for people with disabilities is 19 1/2 inches from the side wall. Provide a toilet in the stall with the centerline exactly 18 inches from the side wall. Standards §§ 4.1.3(11), 4.17.3, Fig. 30(a).(2) Show Manager's Office/VIP Lounge Area (Men's Toilet Room)
The rim of the wall-mounted urinal in the men's toilet room is 24 inches above the finished floor. Provide a urinal with a rim no more than 17 inches above the finished floor. Standards §§ 4.1.3(11), 4.18.2.
(3) Drinking Fountain
The spout outlet height is 37 1/2 inches above the finished floor. Provide a fountain with a spout no more than 36 inches above the finished floor that is accessible to a person in a wheelchair and a fountain that is accessible to persons who have difficulty bending and stooping. Standards
§§ 4.1.3(10)(a), 4.15.2.(4) Women's Toilet Room #2
(a) The toilet room has 9 stalls, including a "standard" stall designated for people with disabilities, but does not have the required additional ambulatory stall. Provide a 36 inch wide stall with an outward swinging, self-closing door and parallel grab bars. Standards §§ 4.1.3(11), 4.22.4, & Fig. 30(d), 4.16, 4.26.
(b) The centerline of the toilet in the "standard" stall designated for people with disabilities is 16 inches from the side wall. Provide a toilet in the stall with the centerline exactly18 inches from the side wall. Standards §§ 4.1.3(11), 4.17.3, Fig. 30(a).
(c) There is no visual alarm appliance located in the toilet room. Provide a visual alarm appliance in the room that complies with the Standards. Standards §§ 4.1.3(11), 4.28.3.(5) Men's Toilet Room #2
There is no visual alarm appliance located in the toilet room. Provide a visual alarm appliance in the room that complies with the Standards. Standards §§ 4.1.3(11), 4.28.3.
(6) Telephone Banks
Neither telephone bank has an accessible public telephone. For each, provide a public telephone that has hearing aid compatibility, a volume control and signage, and that has its highest operable part within the reach ranges specified in the Standards. Standards §§ 4.1.3(17), 4.31.2 through 4.31.8, 4.2.5, 4.2.6.
e. Fourth Level
(1) Women's Toilet Room
The paper towel dispenser in the toilet room is located 65 inches above the finished floor. Provide a paper towel dispenser in the room that is no more than 54 inches for a front approach, or 48 inches for a side approach, above the finished floor. Standards §§ 4.1.3(11), 4.2.5, Fig. 5(a), 4.2.6, Fig. 6(b), 4.22.7, 4.27.3.
(2) Men's Toilet Room
(a) The paper towel dispenser in the toilet room is located 65 inches above the finished floor. Provide a paper towel dispenser in the room that is no more than 54 inches for a front approach, or 48 inches for a side approach, above the finished floor. Standards
§§ 4.1.3(11), 4.2.5, Fig. 5(a), 4.2.6, Fig. 6(b), 4.22.7, 4.27.3.
(b) The door to the "standard" stall designated for people with disabilities is 27 inches wide. Provide a door to the stall with a minimum clear opening of at least 32 inches measured from the face of the door to the opposite door stop with the door open 90 degrees. Standards §§ 4.22.4, 4.17.4, 4.13.5.(3) Brochure Stand
The highest shelf in the brochure stand is 63 inches above the finished floor. Provide the same selection of brochures found on the highest shelf on one of the lower shelves that is 54 inches or less above the finished floor. Standards §§ 4.1.3(12), 4.25.1, 4.25.3.
f. Portable Information Desk
(1) Information Desk Counter
The Information Desk has a service counter that is 43 inches above the finished floor. Provide a portion of a counter in each office that is at least 36 inches in length and no more than 36 inches above the finished floor; or provide an auxiliary counter that is at least 36 inches in length, with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). Standards § 7.2(2).
(2) Information Kiosk
The highest shelf in the kiosk is 63 inches above the finished floor. Provide the same selection of information found on the highest shelf on one of the lower shelves that is 54 inches or less above the finished floor. Standards §§ 4.1.3(12), 4.25.1, 4.25.3.
B. OTHER PROGRAM ACCESS ACTIONS
8. There is currently no policy in place to provide way-finding assistance to visually impaired persons to get from Government Plaza offices on the 3rd floor to the GIS Office on the 4th floor. Within 30 days of the effective date of this Agreement, the City will adopt and provide to the Department a written policy that details the procedures to be taken to assist visually impaired persons to find their way from offices on the 3rd floor to offices on the 4th floor of the Government Plaza building when necessary and requested.
IMPLEMENTATION AND ENFORCEMENT
9. 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 City will submit written reports to the Department summarizing the actions the City 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.
10. 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.
11. 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 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 directly to enforce this Agreement, or it may initiate appropriate steps to enforce title II of the ADA or section 504 of the Rehabilitation Act.
12. 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.
13. In the event that the City 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 take action to enforce title II of the ADA, or may initiate appropriate steps to enforce section 504 of the Rehabilitation Act.
14. 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 City or the Department on request.
15. The effective date of this Agreement is the date of the last signature below.
16. 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 City's continuing responsibility to comply with all aspects of the ADA.
17. 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 City has been achieved, whichever is earlier.
18. The person signing for the City of Mobile represents that he or she is authorized to bind the City to this Agreement.
For the City: For the United States:
__________________________
MICHAEL C. DOW
Mayor
Date: 2/17/04
R. ALEXANDER ACOSTA
Assistant Attorney General for Civil Rights
__________________________
JOHN L. WODATCH, Chief
MARY LOU MOBLEY, Acting Deputy Chief
NAOMI H. MILTON, Supervisory Attorney
CHARLES HARVEY, Investigator
Disability Rights Section-NYA
Civil Rights Division
U.S Department of Justice
950 Pennsylvania Avenue, N.W.
Washington , DC 20530
Date: 2/27/04
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October 09, 2008