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

 Department of Justice seal

 

Enforcing the ADA:

A Status Report from the Department of Justice

July - September 2007

 

This Status Report covers the ADA activities of the Department of Justice during the third quarter (July - September) of 2007. This report, previous status reports, and a wide range of other ADA information, including the consent decrees and formal settlement agreements mentioned in this report, are available through the Department’s ADA Home Page at www.ada.gov.


INSIDE...

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

2007, 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 compensatory 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

District Court Rejects Private Title II Prison Claim Against Virginia -- The U.S. District Court for the Eastern District of Virginia dismissed the plaintiff’s title II claim in Chase v. Baskerville against the Virginia prison system. The suit was brought by a deaf inmate who claimed the State denied his request for an interpreter, leaving him unable to understand his school work and other prison programming. Virginia asserted that the attempt by Congress under the ADA to abrogate State sovereign immunity was unconstitutional. The Department intervened to defend the constitutionality of ADA suits against States involving prison administration. It also argued that the court did not need to decide the ADA question because the suit could proceed against the State under another statute, section 504 of the Rehabilitation Act. The court allowed the suit to proceed under section 504, but dismissed the title II claim, ruling that the ADA’s abrogation of State immunity in the prison context was unconstitutional.

B. Formal Settlement Agreements

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

Title II

Department Signs Agreements for Post-Katrina Access, Releases Tool Kit for Emergency Management and Sheltering -- On July 26, 2007, Assistant Attorney General Wan J. Kim held a ceremony with city officials in New Orleans, Louisiana, to sign an amended settlement agreement ensuring that new and renovated city buildings will be accessible. Assistant Attorney General Kim also announced a similar agreement with Harrison County, Mississippi, which includes the cities of Gulfport and Biloxi. Both agreements address the jurisdictions’ efforts to rebuild after Hurricane Katrina destroyed many buildings and facilities two years ago. They also call for development of new emergency management plans that include provisions for accommodating people with disabilities. The signing ceremony was held on the 17th Anniversary of the enactment of the Americans with Disabilities Act.

Under the agreements, the Department will provide technical assistance and other professional services by architectural and design consultants to assist the City of New Orleans and Harrison County in their efforts to rebuild and provide facilities that are accessible to people with disabilities. These services include reviewing plans for new facilities and modifications to existing ones; providing training on ADA architectural requirements for key city and county personnel and for local architects, engineers, and contractors; and providing consultation to business owners, landlords, contractors, and others who are designing or rebuilding private, nongovernmental facilities within the city and county.

The amended settlement agreement with New Orleans replaces a previous settlement signed in 2002 under Project Civic Access, the Department’s wide ranging initiative to work cooperatively with local governments to ensure that people with disabilities have an equal opportunity to participate in civic life, a fundamental part of American society. The Department has now entered 155 agreements with 144 communities across the country. Due to widespread flooding following Hurricane Katrina, many of the facilities covered by the 2002 agreement were closed and those remaining were severely damaged. In light of this catastrophe, Department staff worked closely with City of New Orleans staff and the Mayor’s Advisory Council for Citizens with Disabilities to develop the amended agreement.

The Department also announced the release of Chapter 7 of the ADA Best Practices Took Kit for State and Local Governments. This chapter addresses ADA requirements applicable to emergency management and sheltering. It includes survey tools that can be used to identify barriers to access for people with disabilities in emergency policies, procedures, and facilities.


Jacksonville Sheriff’s Office, Jacksonville, Florida --
The Department reached an agreement with the City of Jacksonville resolving complaints from individuals who are deaf or hard of hearing, alleging that the Jacksonville Sheriff’s Office failed to provide sign language interpreters when necessary to ensure effective communication between the complainants and sheriff’s deputies. Jacksonville agreed to adopt a policy of providing for effective communication through the timely provision of appropriate auxiliary aids, including sign language interpreters.

Thirty-Eighth District Court, Eastpointe, Michigan -- The U.S. Attorney’s Office for the Eastern District of Michigan reached a settlement agreement with the City of Eastpointe resolving a complaint that the newly constructed Thirty-Eighth District Courthouse was not accessible to persons with disabilities. The municipality has agreed to make structural changes to the courthouse, including converting the north entrance to an accessible entrance with accessible parking, modifying or replacing exterior routes and curb ramps, installing permanent room identification signs with raised characters and Braille, providing an accessible drinking fountain, installing visual fire alarms, creating accessible routes within the courtroom to features such as the witness stand and judge’s bench, installing wheelchair seating areas in the spectator seating area of the courtroom, and modifying several toilet rooms and one holding cell to make them accessible.

Title III

Kansas City Downtown Hotel Group LLC, Kansas City, Missouri ­- The Department reached an agreement with the Kansas City Downtown Hotel Group LLC to ensure that the facilities of the Kansas City Marriott are accessible to individuals with disabilities. The Kansas City Marriott is a large hotel complex with two towers containing a total of 983 guest rooms and a number of bars and restaurants. Under the agreement, the hotel will create an additional eight accessible guest rooms dispersed among all classes of sleeping accommodations, bringing the total number of rooms accessible to people with mobility disabilities and people who are deaf or hard of hearing to 29. The hotel will also provide an accessible counter at the reception desk, ensure that guests who are deaf are provided with a communication kit with visual notification devices, make the 12th Street Pub accessible, provide house and pay telephones in the lobby that are equipped with volume controls and are hearing-aid compatible, and furnish a TTY at the reception desk with appropriate signage to indicate its availability.

Utah College of Massage Therapy, Salt Lake City, Utah The Department signed an agreement with the Utah College of Massage Therapy requiring the college to provide qualified sign language interpreters and other auxiliary aids when necessary for effective communication. The agreement resolves complaints from students and applicants alleging that their requests for sign language interpreters were refused. In one case, after finally agreeing to provide an interpreter for a student who is deaf, the college told the student that he should not have been admitted to the school in the first place and that the cost of the interpreter was unreasonable. The Utah College of Massage Therapy is based in Salt Lake City and has seven campuses located in Utah, Arizona, Colorado, and Nevada, each of which offers nine-month programs in massage therapy. During the investigation, the college was acquired by FCNH Inc., which worked cooperatively with the Department to reach the agreement. The new owner agreed to adopt an effective communication policy and will post notices of the policy in its application materials and on its website. Each campus will provide appropriate auxiliary aids and services when needed to enable students who are blind or have low vision, or who are deaf or hard of hearing, to participate in the academic and clinical components of the program and will provide mandatory training on the ADA and the effective communication policy to employees involved in the admissions process.

Travelodge Motel, Dalton, Georgia ­- The Department entered into an agreement with the former and current owners of the Travelodge Motel in Dalton, Georgia, resolving a complaint filed by an individual who is blind alleging that the former owner of the motel refused service to him because he was accompanied by a service animal. The current owner agreed to adopt a policy on the nondiscriminatory treatment of customers using service animals, to provide a copy of the policy to each employee, and to post the policy in a conspicuous public area of the motel near the reception desk. The owner will also post a large print notice in the lobby welcoming people with disabilities accompanied by service animals and will train all current and new employees on their service animal obligations. In addition, the former owner of the motel agreed to pay the complainant $5,000 in damages and to pay a civil penalty of $1,000.

West End YMCA, Ontario, California The Department reached an agreement with the West End YMCA in Ontario, California, resolving a complaint that the YMCA had failed to make reasonable policy modifications necessary to afford a child with autism a full and equal opportunity to participate in the YMCA’s after-school child care program and then terminated the child’s participation in the program because of his autism. The agreement covers associated YMCA branches in Ontario, Upland, Chino, and Rancho Cucamonga, California. It requires the YMCA to adopt, publish, and implement procedures for evaluating reasonable modification requests; to provide ADA training to those involved in admission and retention decisions; and to pay $6,000 in compensatory damages to the complainant.

Joseph David Camacho, Esq., Albuquerque, New Mexico -- The Department signed an agreement with a New Mexico attorney resolving a complaint that he failed to provide a qualified sign language interpreter to ensure effective communication with a deaf client, that he withdrew from the case, and that the case was dismissed due to the failure to respond to discovery. The attorney allegedly attempted to communicate through written notes, e-mails, and sign language interpretation by the client’s nine-year old son. Under the agreement, the attorney will adopt and enforce a policy on effective communication with clients and their companions who are deaf or hard of hearing, including providing qualified interpreters and other appropriate auxiliary aids free of charge. The attorney also agreed to pay the former client $1,000 in compensatory damages.

Ozark Entertainment, Inc., Branson, Missouri ­- The Department reached an agreement with Ozark Entertainment, Inc., owner of Mickey Gilley’s Theatre and Mickey’s Texas Cafe, resolving physical accessibility issues at those venues as part of a larger compliance review of entertainment venues in the Branson, Missouri, area. The Department identified numerous violations of the ADA’s requirements for new construction and alterations at the theater as well as previously existing architectural barriers at the café. The owner has agreed to make changes to wheelchair seating locations, toilet rooms, parking, and certain backstage areas in the theater, and to remove numerous barriers to access at the café.

Sylvan Learning Centers, L.L.C., Baltimore, Maryland -- The Department signed an agreement with Sylvan Learning Centers resolving a complaint alleging that it had refused to provide a sign language interpreter to enable a prospective student who is deaf to participate in its tutoring program. Sylvan operates a variety of tutoring programs for students in grades K-12. This agreement covers more than 200 centers owned by Sylvan nationwide. Sylvan agreed to provide appropriate auxiliary aids and services, including qualified sign language interpreters, to students who are deaf or hard of hearing when necessary to ensure effective communication; to adopt and incorporate into its operations manual an effective communication policy for students who are deaf or hard of hearing; to compile and maintain a list of available interpreter providers; to post and maintain its effective communication policy on its website and in a prominent location in the public areas of each of its centers; to provide staff training on the ADA and Sylvan’s obligations to provide effective communication; to establish a grievance procedure; to pay $1,000 in compensatory damages to the prospective student; and to pay a civil penalty of $25,000 to the United States.

Methodist LeBonheur Healthcare, Memphis, Tennessee -- The U.S. Attorney’s Office for the Western District of Tennessee signed a settlement agreement with Methodist LeBonheur Healthcare (“Methodist Hospital”), a group of major, critical care hospitals in Memphis, Tennessee. The Department investigated a complaint from an individual who is deaf, and who became blind after a recent stroke, who alleged that Methodist Hospital denied his repeated requests for a sign language interpreter even though his nieces explained that he is able to communicate using an interpreter by putting his hands over those of the interpreter while the interpreter signs. As a result of the hospital’s failure to provide a qualified interpreter, the complainant was hospitalized for two weeks and underwent medical tests and procedures without understanding what was happening. The attending physician noted in the medical records that he could not communicate with the complainant. Methodist Hospital agreed to implement a comprehensive policy for ensuring effective communication in all six of its locations; conduct individualized assessments of individuals with communication disabilities; provide appropriate auxiliary aids and services in a timely manner; develop a mechanism for the resolution of disputes; train its staff on its policy for ensuring effective communication and post notices informing patients and their companions of the policy. In addition, Methodist Hospital will pay $40,000 in compensatory damages to the complainant and a civil penalty of $3,000 to the United States.

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.

Title II

An inmate with a psychiatric disability alleged that a midwest State department of corrections denied him early release because he was terminated from a treatment program for mental health reasons. The State has modified its policies and procedures to enable staff to work together better to provide access to treatment programs and to eligibility for early release for inmates with psychiatric disabilities.

An inmate who uses a wheelchair complained that shower stalls at a Florida county jail were inaccessible to individuals with mobility disabilities. The jail altered five showers located in the general population housing unit to make them accessible to detainees who use wheelchairs.

A senior citizen with mild dementia alleged that a senior center in Maryland refused to allow her to participate in exercise classes even though her personal attendant was available to participate with her. The state commission overseeing the senior center acknowledged its error, delivered a letter of apology to the complainant, reprimanded the employee who failed to follow established procedures, and provided the employee with more training on accommodating persons with disabilities.

An inmate with a mobility disability complained that an Illinois county jail was inaccessible. The jail agreed to provide directional signage to a unisex toilet room that was modified to be accessible, make TTY’s available for inmate and public use, and ensure program accessibility by assigning detainees who use wheelchairs to the closest accessible jail.

An inmate engaged to a deaf individual had been housed at two separate county jails in a southern State and alleged that TTY’s were not provided for the use of inmates or visitors at either facility. The State purchased TTY’s for use by staff and visitors at both facilities, provided training to jail staff on the use of the new TTY’s, and reinstalled TTY’s in inmate housing units from which they had been removed.

An individual with a mobility disability complained that a Virginia county did not have an ADA coordinator or grievance procedure. The county appointed an ADA coordinator, adopted a grievance procedure, and solicited comment from the public on the compliance of county programs with the ADA. The county distributed copies of its ADA notice and grievance procedure to department heads and posted them in county buildings and on its website. The county also added information to the agendas for its board of supervisors meetings explaining to the public how to request accommodations needed for participation in these meetings.

A deaf individual complained that a Colorado county sheriff’s office providing 9-1-1 emergency services failed to receive and respond to calls by individuals using TTY’s and, in particular, failed to adequately respond to “silent/no voice contact” calls. The sheriff’s office took steps to ensure that its procedures for responding to 9-1-1 calls were appropriately followed.

An individual who is blind complained that a southern State department of motor vehicles failed to assist her in obtaining a State-issued identification card available to all legal residents, including people who cannot drive. In response to the Department’s investigation, a manager at the local motor vehicle office agreed to review her documentation and issued her an identification card. The motor vehicle department agreed to modify procedures to improve its management review of requests for identification cards from persons who are blind or who have low vision and to post information about these procedures on its website

Title III

A patient who uses a service animal alleged that a doctor’s office in Arizona barred her service animal from accompanying her into an examination room. The doctor adopted a written policy welcoming people with disabilities who have service animals, agreed to ensure that all staff comply with this policy, and placed a sticker on his office door welcoming service animals.

An individual with a mobility disability complained that two shopping centers in Missouri did not have adequate accessible parking and accessible curb ramps. The owner of the shopping centers agreed to make modifications to its parking lots and curb ramps to provide accessibility.

An individual with a mobility disability complained that an airport shuttle service in Nebraska did not have accessible vehicles for individuals who use wheelchairs. The shuttle service concluded an agreement with another shuttle operator in the area to provide an equivalent level of service to passengers with disabilities at the same rate it charges its other passengers.

An individual with a mobility disability alleged that a Virginia restaurant failed to provide equal access for people with disabilities who drive to the restaurant and enter through the parking garage. The restaurant placed signage directing people with disabilities to the accessible entrance and to the accessible toilet rooms, provided an accessible door threshold, adjusted door pressures, and removed a protruding object in the bar area.

An individual with a mobility disability complained that a family campground in Pennsylvania lacked accessible features. The campground has made alterations to the camp store and recreation hall, providing an accessible entrance and accessible routes throughout the store and recreation hall. Additionally, an accessible portable toilet and accessible electric and water hook-ups were installed at designated campsites.

The U.S. Attorneys obtained informal settlements in the following cases --

Northern District of Illinois ­- An individual with Asperger Syndrome alleged that a symphony orchestra denied her an opportunity to participate as an orchestra member because of her disability. Although initially selected to be a member of the orchestra after a successful audition, the complainant’s membership was revoked after her disability was disclosed. The orchestra has adopted a policy against disability discrimination and will make reasonable modifications in polices, practices, and procedures, when needed for individuals with disabilities to participate. The orchestra has also agreed to train its employees, include the complainant as a participant in a benefit concert, and pay a civil penalty of $2,000.

Southern District of Mississippi ­- An individual who is hard of hearing complained that staff of a cable service provider failed to meet with him in a separate, quieter room to discuss his service problem. The cable company agreed to have a customer service representative meet with the customer in a quieter room where he was able to understand the conversation and have his problem resolved.

District of New Hampshire ­- An individual with a mobility disability complained that a food market lacked accessible parking. The market agreed to add two accessible parking spaces to its lot, including one van-accessible space, and to create an unobstructed accessible route from the parking spaces to the sidewalk.

Southern District of New York -­ An individual with a mobility disability complained that a New York City theater failed to provide accessible toilet rooms. The theater has since installed a unisex, accessible toilet room in the foyer of the theater.

Middle District of Tennessee ­- An individual with a mobility impairment complained that several commercial properties, including a bank, an office park, and a shopping center, all lacked adequate van-accessible parking in their parking lots. Each of these properties has since taken steps to provide accessible parking.

Compliance reviews of six other commercial properties including an eyecare center, two banks, a credit union, a tractor dealership, and the office of a public utility, revealed that all of these properties lacked adequate van-accessible parking. Each property has since restriped its parking lot in order to provide the required number of van-accessible parking spaces.

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. 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 Website, ADA Information Line, and Automated ADA Fax System; developing and disseminating technical assistance materials to the public; and undertaking outreach initiatives.

ADA Website

The Department’s Website (www.ada.gov) provides direct access to the Department’s publications, briefs, and settlement agreements, and other information about its enforcement, mediation, technical assistance, and certification programs, including proposed changes in ADA regulations and requirements, links to ADA press releases, and links to other Federal agencies’ websites that contain ADA information.

In addition, the website provides access to --

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, who can assist callers in understanding how the ADA applies to their situation, 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). Foreign language service is also available. To get answers to technical questions, obtain general ADA information, order free ADA materials, or ask about filing a complaint, please call:

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

Automated ADA Fax System

The Automated ADA Fax System allows the public to obtain free ADA information by fax 24 hours a day, seven days a week. By calling the ADA Information Line and following the directions, callers can request specific documents to be faxed directly to their fax machines or computer fax/modems. A listing of publications and their fax codes is available online or can be ordered through the ADA Information Line.

Technical Assistance Touches Broad Audience ­- During the past year, the Department participated in more than 80 speaking and outreach events, reaching almost 300,000 people among a wide variety of audiences, including minority and rural communities. The Department presented its ADA Technical Assistance exhibit at the South Dakota State Fair in Huron and at 11 national conferences, including conferences of the National Council of La Raza, the National Association for the Advancement of Colored People (NAACP), and the Organization of Chinese Americans. Staff answered questions and distributed compliance assistance materials to promote public awareness of the ADA. The Department also continued its effort to reach out to businesses throughout the United States, providing information to assist them in their ADA compliance efforts. In August 2007, an article about the Fifth Anniversary of the ADA Business Connection initiative was published in the Social Security Administration/Internal Revenue Service Reporter and was posted on the IRS Website (www.IRS.gov). Published in both English and Spanish, the newsletter was also mailed to more than seven million businesses in September.

Publications and Documents

Copies of the Department’s ADA regulations and technical assistance publications can be obtained by calling the ADA Information Line, visiting the ADA Website, 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 people 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. Spanish language documents can be accessed through the ADA Website (www.ada.gov/publicat_spanish.htm). Other language documents can be obtained by mail.

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/PA Branch, NALC Room 311
Washington, D.C. 20530

Fax: 202-514-6195

Currently, the FOIA/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 FOIA/PA Branch also provides internet access to ADA materials at www.usdoj.gov/crt/foia/crt.htm. Links to search or visit this website are provided from the ADA Website.

IV. 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 provides information about the transportation provisions of title II of the ADA.

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

www.fta.dot.gov/ad

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 DBTAC: ADA 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)

http://projectaction.easterseals.com

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)
877-781-9403 (TTY)

www.jan.wvu.edu

V. 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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October 09, 2008