U.S. Department of Justice
Civil Rights Division
Disability Rights Section

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Enforcing the ADA:

A Status Report from the Department of Justice

January - March 2004

This Status Report covers the ADA activities of the Department of Justice during the first quarter (January - March) of 2004. This report, previous status reports, and a wide range of other ADA information are available through the Department’s ADA Home Page on the World Wide Web (see page 14). The symbol (**) indicates that the document is available on the .


INSIDE...

ADA Litigation
Formal Settlement Agreements
Other Settlements
Mediation
Certification
Technical Assistance
Other Sources of ADA Information
How to File Complaints

 

2004, Issue 1

 

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA’s requirements in three areas --

Title I: Employment practices by units of State and local government

Title II: Programs, services, and activities of State and local government

Title III: Public accommodations and commercial facilities

 

I. Enforcement

     Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in thousands of cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations.

A. Litigation

      The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensa-tory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.

1. Decisions

Spector v. Norwegian Cruise Line Ltd. -- The U.S. Court of Appeals for the Fifth Circuit ruled in Spector v. Norwegian Cruise Lines, Ltd. that title III does not cover foreign-flagged cruise ships operating in U.S. ports. Plaintiffs, individuals with mobility impairments and their nondisabled companions, filed suit alleging that a foreign-flagged cruise line discriminated against them by imposing a surcharge for an accessible cabin, by failing to remove architectural barriers to access or to offer services in alternative accessible settings, and by failing to make reasonable modifications to its practices, policies, and procedures. The court rejected the arguments made by the Department in its amicus brief in favor of coverage. It held that title III does not apply to foreign-flagged cruise ships even when they voluntarily enter U.S. ports to receive passengers. Relying on general international law principles that domestic law may not be applied to foreign-flagged ships without specific evidence of congressional intent to do so, the court found no indication either in the statutory text or the legislative history that Congress intended title III to apply to foreign-flagged cruise ships. This decision conflicts with an earlier decision of the Eleventh Circuit in Stevens v. Premier Cruises, Inc. which agreed with the Department’s amicus brief in that case arguing that foreign-flagged ships operating in U.S. ports are covered.


2. New Lawsuits

     The Department initiated or intervened in the following lawsuits.

Title II

Miller v. King -- The Department intervened in the U.S. Court of Appeals for the Eleventh Circuit in Miller v. King to defend the constitutionality of a private lawsuit against the State of Georgia under title II. The suit, which includes a claim for damages, was brought by a prison inmate who uses a wheelchair and alleges a failure by the State to house him in an appropriate accessible integrated setting. The Department asked the court to postpone consideration of this case until the Supreme Court rules on the constitutionality of the ADA’s abrogation of State immunity in Tennessee v. Lane.


3. Consent Decrees

     Some litigation is resolved at the time the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which they are entered.

Title I

United States v. Mississippi Department of Public Safety -- The Department settled its lawsuit against the Mississippi Department of Public Safety which alleged that the State discriminated against a highway patrol cadet who uses insulin to control his diabetes. The lawsuit, filed in U.S. District Court for the Southern District of Mississippi, alleged that the cadet made several requests for additional food in order to control his diabetes in response to the strenuous exercise required at the State highway patrol academy training program. The complainant alleged that his requests were denied and that as a result he had an incident of hypoglycemia (low blood sugar) that left him confused and unable to report to training. The State subsequently dismissed him from the academy. Under the consent decree the State will pay $35,000 in damages, implement a policy to prevent future discrimination, and train its officers on the ADA and on recognizing diabetes and other disabilities. The State will also incorporate an overview of diabetes into its existing curriculum for training troopers and future cadets.

Title III

** Bourdon v. Croft -- The Department resolved by consent decree a lawsuit in which it had intervened alleging that Dr. Scott T. Croft and Arizona Bone & Joint Specialists, Ltd., a sports medicine practice with offices in Phoenix and Scottsdale, Arizona, refused to provide the plaintiff with medical services, including orthopedic surgery, because he identified himself as being HIV positive. Under the decree filed in the U.S. District Court for the District of Arizona, the defendants agreed to pay $120,000 in compensatory damages and attorney’s fees to the plaintiff and $20,000 in civil penalties to the United States. The decree also requires the defendants to adopt a formal nondiscrimination policy and to provide appropriate medical services to persons with HIV disease.


B. Formal Settlement Agreements

      The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.

Title II

** New Project Civic Access Agreements Signed by Eight Communities -- The Department has signed eight additional agreements under its Project Civic Access initiative, a wide-ranging effort to ensure that cities, counties, towns, and villages throughout the United States comply with the ADA. The new agreements cover --

Detroit, Michigan
Lincoln County, Nebraska
Binghamton, New York
Carson City, Nevada
Citrus County, Florida
Springfield, Massachusetts
Waukegan Park District, Waukegan, Illinois
Mobile, Alabama

Seventy agreements have been signed to date. Each community will take specific steps, depending on local circumstances, to make core government functions more accessible to people with disabilities. The agreements will improve access to many aspects of civic life including, courthouses, libraries, parks, sidewalks, and other facilities, and address a wide range of accessibility issues, such as employment, voting, law enforcement activities, and emergency preparedness and response.

** Commonwealth of Massachusetts; Bristol County, Massachusetts -- The Department settled its lawsuit in the U.S. District Court for the District of Massachusetts against the State and Bristol County for allegedly violating the ADA by failing to make the services, programs, and activities of the county’s trial courts and registries of deeds accessible to individuals with mobility impairments. The lack of physical accessibility or other alternative arrangements -- courtrooms and offices were located up flights of stairs in buildings without ramps or elevators -- allegedly prevented the two lawyers with disabilities identified in the complaint, and other lawyers, parties, witnesses, jurors, spectators, and citizens with disabilities, from gaining access to the services of five courthouses and three registries of deeds offices. Under the agreement, Massachusetts will make structural changes at each courthouse by constructing an elevator or ramp, along with accessible restrooms. The agreement also calls for modifications of procedures to ensure that any services or programs located in inaccessible areas in a courthouse will be provided in an accessible area. The Commonwealth will ensure that lawyers, parties, witnesses, jurors and spectators can attend court proceedings in the courthouse and have access to all court services provided at the courthouse. In addition, Bristol County will make structural changes at its registries of deeds offices by constructing a ramp or elevator, along with accessible restrooms, that will enable individuals with disabilities to gain physical access to the registries and their services. Until these structural changes are completed, each registry will serve individuals with mobility impairments via mail, internet, facsimile, and curbside service.

Fort Payne, Alabama -- The Department entered into an agreement with the City of Fort Payne resolving a complaint that the second floor of the Fort Payne City Hall is inaccessible to individuals with mobility impairments. Under the agreement, the Department will review the city’s proposed architectural drawings for the new city hall facility that it is building to ensure that it complies with the ADA. Until the new facility is constructed, the city agreed to relocate meetings and court proceedings to accessible areas within the existing city hall building and to make sure that its current procedures for providing alternative access are well publicized and widely disseminated, including by attaching a notice to all traffic citations and other court notices. The city also agreed to notify its employees and the public about the requirements of title II and to publicize public grievance procedures for resolving title II complaints.

Simon Estes Amphitheater, Des Moines, Iowa -- The U.S. Attorney’s Office for the Southern District of Iowa entered an agreement with the City of Des Moines resolving a complaint brought by the City Access Advisory Board alleging that the Simon Estes Amphitheater, a newly constructed riverside outdoor amphitheater owned by the city, was not accessible to wheelchair users. The complaint alleged that there was no accessible route to the stage and no wheelchair seating. The city agreed to install a lift to provide an accessible route from street level to the lower area of the amphitheater; install a ramp to allow access onto the stage; designate wheelchair and companion seating, and provide assistive listening devices.

Walla Walla County, Washington -- The Department and Walla Walla County, Washington, entered into an agreement to ensure effective communication at the Walla Walla county jail. An individual who is deaf alleged that the jail facility lacked a TTY and failed to provide qualified sign language interpreters. The county agreed to purchase a TTY and to provide qualified sign language interpreters and other auxiliary aids to ensure effective communication

Titles II and III

** Maryland Department of Juvenile Services, Baltimore, Maryland; Youth Services International, Inc., Sarasota, Florida -- The Department reached agreements with the Maryland Department of Juvenile Services (MDJS) and its private contractor, Youth Services International, Inc. (YSI), resolving a complaint alleging a lack of auxiliary aids at State juvenile detention facilities. The complainant, a deaf juvenile who was detained for five months in an MDJS facility and for 13 months in a YSI-operated facility, alleged that in the first placement he was never provided access to an interpreter and that in the second he was provided only limited interpreter services. This lack of interpreter services largely prevented him from participating in rehabilitation, counseling, and other social and educational programs. Under the agreements both YSI and MDJS will ensure effective communication for juveniles detained in their facilities or who otherwise receive their services. They agreed to provide auxiliary aids and services, including interpreters, when necessary for effective communication; evaluate juveniles in order to determine what aids are necessary; provide assistive technology, such as TTY’s, volume controls for telephones, visual alarms, and captioning; conduct staff training on the ADA; and designate an ADA compliance officer at each facility. Together MDJS and YSI will pay $65,000 in compensatory damages and YSI will pay a civil penalty of $10,000.

Title III

Gregg Tirone, Esq., Rochester, New York -- The Department reached an agreement with a private attorney resolving a complaint alleging that he failed to provide a sign language interpreter to a client who is deaf and uses American Sign Language as her principal means of communicating. The attorney agreed to provide qualified sign language interpreters to clients with hearing disabilities, when requested to do so, at no charge to the client. He also agreed to pay $2,200 to the client, to forego any further amount she owes him, and to post an announcement in his office stating his willingness to provide sign language interpreters upon request.

Extended Love Child Development, Pleasant Prairie, Wisconsin -- The Department entered an agreement with Extended Love Child Development Center to resolve a complaint by the mother of a child who is deaf alleging that the center refused to provide sign language interpreters for communication-intensive activities, such as field trips, and, as a result, her child was denied an equal opportunity to participate in center activities. The center agreed to provide qualified sign language interpreters or other auxiliary aids and services when needed to ensure effective communication with deaf or hard of hearing children or parents. It also agreed to train its staff on providing auxiliary aids and to do an age-appropriate presentation on communicating with people with hearing disabilities for the classmates of any child who is deaf or hard-of-hearing.

New Horizons Computer Learning Center, Windsor, Connecticut -- The Department entered an agreement with New Horizons Computer Learning Center of Hartford, Inc., a private company that provides courses in computer science. A deaf individual alleged that the company asked him to provide, at his own cost, a sign language interpreter so that he could participate in the company’s programs on an equal basis with other students. New Horizons agreed to adopt a new policy providing for appropriate auxiliary aids and services where necessary to ensure effective communication, including qualified interpreters, at no cost to the student or applicant. The company will also advertise the availability of auxiliary aids and services and designate an ADA coordinator to handle all requests for auxiliary aids or services.

Primavera Pizza Kitchen, Downingtown, Pennsylvania -- The Department reached an agreement with Primavera Pizza Kitchen, a restaurant that was newly constructed with two inaccessible, raised dining areas. Before constructing the restaurant, the owner sought and received a waiver from the Pennsylvania Department of Labor permitting the construction of the raised dining areas under Pennsylvania law, but that waiver did not excuse the restaurant from compliance with Federal law. The owner agreed to make the two raised areas accessible by providing a ramp to one area and lowering the floor of the second area.

**Safeway Agrees to Additional Measures to Ensure Supermarket Accessibility -- The Department reached agreement with Safeway and the Disability Rights Education and Defense Fund on a third addendum to a settlement agreement requiring Safeway to correct ADA violations at its over 1500 grocery stores nationwide, including stores owned by Safeway and operated under another name such as Vons, Pavillions, Dominick’s Fine Foods, Randall’s, Tom Thumb, Genuardi’s, or Carr-Gottstein Foods, Co. Safeway agreed to complete barrier removal and to fix all new construction violations before March 31, 2005, or else pay $75,000 in civil penalties. It also agreed to hire a full-time compliance officer who will be responsible for ensuring compliance throughout the chain, provide ADA training to all store managers, and hire an independent consultant to survey up to 90 Safeway stores (selected by the Department of Justice) by September 1, 2005, to enable the Department to evaluate Safeway’s compliance with the agreement. If the surveys show substantial noncompliance, Safeway will pay up to $200,000 in additional civil penalties.

Dr. Jwa-il James Seo, Lorain, Ohio -- The U.S. Attorney’s Office for the Northern District of Ohio signed an agreement with Dr. Jwa-il James Seo resolving a complaint alleging that he failed to provide effective communication. The complainant, who is deaf, scheduled a medical appointment for her five-year-old son. At the appointment, the complainant and Dr. Seo attempted to communicate by writing notes, but both agreed they were unable to communicate effectively in this manner. Dr. Seo later told the complainant he could no longer treat her son because he could not afford to pay for a sign language interpreter. Under the settlement, Dr. Seo agreed to provide auxiliary aids, including sign language interpreters, for the complainant and all other individuals who need such aids. He also agreed to post a sign in a conspicuous place to notify patients he will provide sign language interpreters or other appropriate auxiliary aids or services when they are necessary for effective communication with patients or their companions.

Mariani v. Jordan’s Mexican Food Restaurant, Phoenix, Arizona -- The U.S. Attorney’s Office for Arizona and Jordan’s Mexican Food Restaurant reached an agreement resolving a barrier removal complaint. The restaurant will construct a unisex accessible restroom and modify its parking lot to make it accessible.

Mancino’s Restaurant, Brighton, Michigan -- The U.S. Attorney’s Office for the Eastern District of Michigan entered into an agreement with Mancino’s Restaurant of Brighton resolving a complaint involving denial of access to a service animal. The complainant, who is a person with a disability who uses a service dog, attempted to attend a social engagement at the restaurant. The owner allegedly refused to permit the complainant to remain in the restaurant because of the presence of her service dog and threatened to call the police if she did not remove the dog from the premises. Mancino’s agreed to post a policy welcoming service animals in a prominent place at the restaurant, train its employees on the new policy, and pay the complainant $1000 in damages.

Mirabile Investment Corporation (Burger King), Memphis, Tennessee -- The U.S. Attorney’s Office for the Western District of Tennessee and Mirabile Investment Corporation signed an agreement requiring modifications to a newly constructed Burger King restaurant. Mirabile agreed to reconfigure the toilet rooms, provide signage for accessible parking spaces, install signage directing customers to the accessible entrance, remove a partition in the dining room, and reconfigure seating to provide an accessible route through the dining area. In addition, Mirabile will pay $5,000 in civil penalties to the United States.

Dr. Samuel G. Christopher, Celina, Ohio --The U.S. Attorney’s Office for the Northern District of Ohio reached an agreement with a physician who allegedly refused to provide a sign language interpreter for an appointment with a patient who is deaf. The complainant requested that the doctor provide a sign language interpreter for a medical exam because at prior appointments she allegedly had difficulty communicating with him. The physician agreed to provide a sign language interpreter for the complainant in the future as well as for other patients with disabilities who need interpreters. He also agreed to train its staff on the new policy and post a sign in a conspicuous location in his lobby indicating the availability of interpreters.


C. Other Settlements

     The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.

A woman who uses a crutch and who would soon require an accessible van complained that a Connecticut restaurant lacked accessible parking spaces and an accessible entrance. The restaurant created a van-accessible parking space with an access aisle and appropriate signage and installed signage directing patrons with disabilities to the accessible public entrance.

District of Arizona -- A student with a mobility impairment complained of barriers to access at a beauty college. The college agreed to insulate the drain pipes under the sinks in the men’s and women’s restrooms, move the time clock so that it is accessible to persons using wheelchairs, and place a notice on two soda machines that are inaccessible indicating the receptionist will provide assistance in using the vending machines if needed.


II. Mediation

     Under a contract with the Department of Justice, The Key Bridge Foundation receives referrals of complaints under titles II and III for mediation by professional mediators who have been trained in the legal requirements of the ADA. An increasing number of people with disabilities and disability rights organizations are specifically requesting the Department to refer their complaints to mediation. More than 400 professional mediators are available nationwide to mediate ADA cases. Over 75 percent of the cases in which mediation has been completed have been successfully resolved. Following are recent examples of results reached through mediation.


III. Certification of State and Local Accessibility Requirements

     The ADA requires that newly constructed or altered places of public accommodation and commercial facilities comply with title III of the ADA, including the ADA Standards for Accessible Design (ADA Standards). The Justice Department is authorized to certify that State and local accessibility requirements, which are often established through building codes, meet or exceed the ADA’s accessibility requirements. In any lawsuit that might be brought, an entity that complies with a certified State or local code can offer that compliance as rebuttable evidence of compliance with the ADA.

    In implementing its certification authority, the Department works closely with State and local officials, providing, as needed, detailed technical assistance to facilitate efforts to bring those accessibility requirements into accord with the ADA Standards. In addition, the Department responds to requests from private entities for review of the accessibility provisions of model codes and standards, and provides informal guidance regarding the extent to which they are consistent with the minimum accessibility requirements of the ADA.

The Department has certified the accessibility codes of the States of Washington, Texas, Maine, and Florida, and has pending requests for certification from California, Indiana, Maryland, New Jersey, North Carolina, and Utah. Recent certification activity includes --

Maryland -- The Department issued a final determination certifying that the Maryland Accessibility Code meets or exceeds the new construction and alterations requirements for facility accessibility under title III of the ADA. Assistant Attorney General R. Alexander Acosta was joined by Maryland Governor Robert L. Ehrlich, Jr., and Lieutenant Governor Michael S. Steele in Annapolis, Maryland, on February 18, 2004, for a ceremony at the State Capitol to announce the completion of the process for certifying the Maryland code. A notice of the Department’s final determination was published in the Federal Register on March 5, 2004. Maryland became the fifth State to receive ADA certification.


IV. Technical Assistance

     The ADA requires the Department of Justice to provide technical assistance to businesses, State and local governments, and individuals with rights or responsibilities under the law. The Department provides education and technical assistance through a variety of means to encourage voluntary compliance. Our activities include providing direct technical assistance and guidance to the public through our ADA Information Line, ADA Home Page, and Fax on Demand, developing and disseminating technical assistance materials to the public, undertaking outreach initiatives, and coordinating ADA technical assistance government wide.

ADA Website

The Department’s ADA Website on the Internet’s World Wide Web provides direct access at anytime to ADA information offered by the Department and by other Federal agencies.

The ADA Home Page (www.ada.gov) is the entry point to the website. It provides direct access to --

The ADA Home Page also provides information about --

** Department Releases Checklist for Polling Place Access -- The Department of Justice released its new “ADA Checklist for Polling Places” to help local officials improve voting accessibility nationwide. The 33-page checklist covers a wide range of accessibility issues, including parking, passenger drop-off areas, walkways, building entrances and hallways, and use of the voting area. It helps election officials recognize and identify accessibility problems at the schools, religious institutions, and public buildings that serve as polling places throughout the United States and offers practical, simple, and efficient solutions for eliminating barriers, including temporary measures for election day. The checklist is available from the ADA Website (www.ada.gov) or it can be obtained by mail or fax by calling the ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY).


ADA Information Line

The Department of Justice operates a toll-free ADA Information Line to provide information and publications to the public about the requirements of the ADA. Automated service, which allows callers to order publications by mail or fax, is available 24 hours a day, seven days a week. ADA specialists are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. and on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). Spanish language service is also available.

To obtain general ADA information, get answers to technical questions, order free ADA materials, or ask about filing a complaint, please call:

800-514-0301 (voice)
800-514-0383 (TTY)


ADA Fax On Demand

The ADA Information Line Fax Delivery Service allows the public to obtain free ADA information by fax 24 hours a day, seven days a week. By calling the number above and following the directions, callers can select from among 34 different ADA technical assistance publications and receive the information, usually within minutes, directly on their fax machines or computer fax/modems. A list of available documents and their code numbers may also be ordered through the ADA Information Line.


Publications and Documents

Copies of the Department’s ADA regulations and publications, including the Technical Assistance Manuals for titles II and III, can be obtained by calling the ADA Information Line, visiting the ADA Home Page, or writing to the address listed below. All materials are available in standard print as well as large print, Braille, audiotape, or computer disk for persons with disabilities.

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

Some publications are available in foreign languages. For further information please call the ADA Information Line.

Copies of the legal documents and settlement agreements mentioned in this publication can be obtained by writing to --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
FOIA Branch, NALC Room 311
Washington, D.C. 20530

Fax: 202-514-6195

Currently, the FOI/PA Branch maintains approximately 10,000 pages of ADA material. The records are available at a cost of $0.10 per page (first 100 pages free). Please make your requests as specific as possible in order to minimize your costs.

The FOI/PA Branch also provides access to ADA materials on the World Wide Web (www.usdoj.gov). A link to search or visit this website is provided from the ADA Home Page.


V. Other Sources of ADA Information

The Equal Employment Opportunity Commission offers technical assistance to the public concerning the employment provisions of title I of the ADA.

ADA publications
800-669-3362 (voice)
800-800-3302 (TTY)

ADA questions
800-669-4000 (voice)
800-669-6820 (TTY)

www.eeoc.gov

The Federal Communications Commission offers technical assistance to the public concerning the communication provisions of title IV of the ADA.

ADA publications and questions
888-225-5322 (voice)
888-835-5322 (TTY)

www.fcc.gov/cgb/dro

U.S. Department of Transportation, Federal Transit Administration

ADA Assistance Line for regulations and complaints
888-446-4511 (voice/relay)

www.fta.dot.gov/ada

The U.S. Architectural and Transportation Barriers Compliance Board, or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines.

ADA publications and questions
800-872-2253 (voice)
800-993-2822 (TTY)

www.access-board.gov

The Disability and Business Technical Assistance Centers are funded by the U.S. Department of Education through the National Institute on Disability and Rehabilitation Research (NIDRR) in ten regions of the country to provide resources and technical assistance on the ADA.

ADA technical assistance
800-949-4232 (voice & TTY)

www.adata.org

Project ACTION is funded by the U.S. Department of Transportation to provide ADA information and publications on making transportation accessible.

Information on accessible transportation
800-659-6428 (voice/relay)

www.projectaction.org

The Job Accommodation Network (JAN) is a free telephone consulting service funded by the U.S. Department of Labor. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace.

Information on workplace accommodation
800-526-7234 (voice & TTY)

www.jan.wvu.edu


VI. How to File Complaints

Title I

     Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 800-669-4000 (voice) or 800-669-6820 (TTY) to reach the field office in your area.

Titles II and III

     Complaints about violations of title II by units of State and local government or violations of title III by public accommodations and commercial facilities should be filed with --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

If you wish your complaint to be considered for referral to the Department’s ADA Mediation Program, please mark “Attention: Mediation” on the outside of the envelope.



The Attorney General has determined that publication of this periodical is necessary in the transaction of the public business required by law of the Department of Justice.



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August 5, 2004