A. 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 Perry County, Kentucky ("County"). The complaint was received by the Civil Rights Division of the Department, under the authority of 28 C.F.R. Part 35, Subpart F. The complainant alleges that the County and it's facilities, specifically the Courthouse, are not accessible.
Because the County receives financial assistance from the Department, the investigation was also conducted under the authority of § 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. The Department expanded the scope of the investigation to include the County's compliance with the following title II requirements:
The Department limited its program access review to those of the County's programs, services, and activities that operate in the Perry County Courthouse, the Perry County Garage, the new Perry County Jail, the Senior Citizens Center, the Perry County Park, and additional Perry County polling places located in the Jakes Branch Fire and Rescue Station and the M.C. Napier High School.
1. The ADA applies to the County because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).
2. The Department is authorized to conduct this investigation under 42 U.S.C. § 12133 in order to determine the County's compliance with title II and the Department's implementing title II regulation, to issue findings and, where appropriate, to negotiate and secure a voluntary compliance agreement. 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.
3. The Department is authorized to conduct this investigation under 28 C.F.R. Part 42, Subpart G, to determine the County's compliance with § 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 County provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
C. ACTIONS TAKEN BY THE COUNTY
The County has provided direct TDD access for its 911 service and has provided training for the call takers.
The parties to this Agreement are the United States of America and Perry County, Kentucky. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties hereby agree as follows:
D. REMEDIAL ACTION
4. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter.
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 whether a program or activity held in an existing facility is "readily accessible to and usable by" persons with disabilities, and for determining what changes are necessary to make this program or activity accessible if it continues to be provided in the existing facility in question. See 28 C.F.R. §§ 35.150(b)(1), 35.151. The Standards appear at 28 C.F.R. Part 36, Appendix A.
E. 911 SERVICES
6. The County agrees to continue to ensure that TDD calls are answered as quickly as other calls received, and are monitored for timing and accuracy, if other calls are monitored. The County will also continue to ensure that employees are trained and practiced in using a TDD to make and receive calls.
7. The County will incorporate correct TDD call taking procedures into call takers' performance evaluations, and will amend its personnel policies to include written disciplinary procedures for call takers who fail to perform TDD call taking consistent with the training and procedures. The County will submit a copy of its evaluation and procedures to the Department within 90 days of the effective date of this Agreement.
F. SIGNAGE ON ACCESSIBLE AND INACCESSIBLE ENTRANCES
8. Within three (3) months of the effective date of this Agreement, the County will survey its facilities for the purpose of identifying those that have multiple entrances, not all of which are accessible, and install signage, which directs visitors with disabilities to the accessible entrance as required by 28 C.F.R. § 35.163(b).
G. COUNTY SERVICES
9. The County agrees that within 30 days of the effective date of this Agreement, the County will designate an employee to coordinate its efforts to comply with and carry out its responsibilities under title II of the ADA. The name, office address and telephone number of the ADA coordinator will be made available to all interested persons.
10. The County agrees that within 30 days of the effective date of this Agreement, the County will establish a grievance procedure for resolving complaints of violations of title II of the ADA.
H. PERRY COUNTY HALL OF JUSTICE
The County, through the Kentucky Administrative Office of the Courts, agrees to submit building plans for the Perry County Hall of Justice to the Department for review for compliance with the ADA, upon completion of the plans.
I. PHYSICAL ALTERATIONS
In order to ensure that the following facilities, for which construction commenced after January 26, 1992, are readily accessible to and usable by individuals with disabilities, the County will take the following actions.
11. The County will make the following modifications to the Senior Citizens Center in the Perry County Park within two (2) years of the effective date of this Agreement:
a. Men's and Women's Toilet Rooms
(1) There are no grab bars at the toilets. Provide side and rear grab bars that comply with the Standards. §§ 4.1.3(11), 4.22.4, 4.16.4 & Fig. 29.
(2) The toilet paper dispenser is located on the back wall. Reposition or provide a dispenser on the side wall so that it is within reach as required by the Standards and is at least 19 inches above the finish floor. §§ 4.1.3(11), 4.22.4, 4.16.6 & Fig. 29 (b).
(3) The hot water and drain pipes beneath the lavatories are not insulated or configured to protect against contact. Insulate the hot water and drain pipes consistent with the Standards. §§ 4.1.3(11), 4.22.6, 4.19.4.
(4) The bottom of the reflecting surface of the mirrors is 49 1/2 inches above the finish floor. Provide a mirror in each toilet room so that the bottom of its reflecting surface is not higher than 40 inches above the finish floor. §§ 4.1.3(11), 4.22.6, 4.19.6 & Fig. 31.
(5) The entrance doors to the toilet rooms have knob hardware. Replace the knobs with hardware that is easy to grasp with one hand and does not require tight grasping, pinching, or twisting of the wrist to operate. §§ 4.1.3(11), 4.1.3(7)(b), 4.13.9.
(6) The toilet room identification signs are mounted on the toilet room entrance doors. Provide signs, using raised letters and Braille, on the walls adjacent to the latch sides of the doors so that the centerlines of the signs are 60 inches above the finish floor and a person can approach within 3 inches of the signs without encountering protruding objects or standing within the swing of a door. §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
12. The County will make the following modifications to the Perry County Jail prior to first occupancy of the building:
a. The visiting area does not have text telephones. Provide at least one text telephone and one hand set that is hearing aid compatible and has volume control for both the inmates' and the visitors' portions of the visiting area. §§ 4.1.3(17), 4.31, 4.30.7.
b. There are no accessible cells. Provide at least one accessible cell for women and one for men, so that the bottom edge of the reflecting surface of the mirrors is no higher than 40 inches above the finish floor; there are side and rear grab bars installed at the toilets that comply with the Standards, there is sufficient clear floor space at the lavatory and toilet, the robe hooks and shelves comply with the Standards, and the eating and writing surface is accessible to a person who uses a wheelchair. §§ 4.1.3(11), 4.1.3(12)(a), 4.1.3(18), 4.22.6, 4.19.6, 4.22.4, 4.16.4 & Fig. 29, 4.16.2 & Fig. 28, 4.22.3, 4.19.3, 4.25, 4.32.3, 4.32.4.
c. Where drinking fountains are provided, at least 50% must comply with the Standards, and this must include at least one set of accessible fountains for each designated accessible area and each area serving accessible cells. There shall be a drinking fountain accessible to persons who use wheelchairs and one accessible to those who have difficulty bending or stooping at each of these locations. §§ 4.1.3(10), 4.15.2.
d. If emergency warning systems are provided, they shall include both audible alarms and visual alarms. §§ 4.1.3(14), 4.28.
e. In the designated accessible dormitory for men and the designated accessible dormitory for women, install shower seats and grab bars in the shower stalls to conform with the requirements of the Standards. §§ 4.1.3(11), 4.23.8, 4.21 & Fig.s 35 & 37.
f. In the designated accessible dormitory for men and the designated accessible dormitory for women, install the mirrors with the bottom edge of their reflecting surfaces no more than 40 inches above the finish floor. §§ 4.1.3(11), 4.22.6, 4.19.6.
In order to ensure that each of the County's programs, services, and activities operating at the facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the County will take the following actions.
13. The County will make the following modifications to the Perry County Courthouse within two (2) years of the effective date of this Agreement:
a. Drinking Fountains
The spout outlet height of the drinking fountain on the first floors is 44 inches from the finish floor. Install a cup dispenser next to the existing fountain so that the cups dispense within the reach ranges of persons who use wheelchairs. §§ 4.1.3(10)(a), 4.15.2 & Fig.27(a), 4.27.3, 4.2.5, 4.2.6.
b. Accessible Route
The route from the accessible building entrances to the County Judge Executive's Office and the Perry County Fiscal Court includes two ramps, one of which is a part of the route through the main hallway and has a slope of 1:5.24, and the other of which is a part of the route from the main hallway to the office and courtroom and has a slope of 1.4.13. Post a notice at the entrance to the ramp that is a part of the route through the main hallway to direct people with mobility disabilities to the County Clerk's Office so that they can contact the County Judge Executive from there and meet with the County Judge Executive in the Clerk's Office or other accessible location. If a person with a mobility disability requests that a session of the Fiscal Court be moved to an accessible location, the session will be moved. These provisions will remain in effect until such time as the County Judge Executive's Office and the Fiscal Court are moved to an accessible location. §§ 4.3.8, 4.5, 4.8, 4.11, 4.26; 28 C.F.R. § 35.150.
c. Men's and Women's Toilet Rooms
(1) The entrance doors have a clear opening width of 25 inches, the doorways on the designated accessible toilet stalls are 22 inches wide, the designated accessible toilet stalls are 30 1/2 inches wide and 55 1/2 inches deep, there are no rear grab bars, and the top surface of the rim of the urinal in the men's toilet room is 24 1/2 inches above the floor. Place signs at the doors of the men's and women's toilet rooms to direct users to the altered unisex toilet room in the County Clerk's Office suite. §§ 4.1.3(16)(b), 4.30.1, 4.30.2, 4.30.3, 4.30.5.
(2) The controls for the faucets at the lavatories are twist-type handles. Replace at least one faucet with hardware that can be operated with one hand and does not require tight grasping, pinching, or twisting to operate, e.g. lever-operated, push-type, or electronically controlled mechanisms. §§ 4.19.5, 4.27.4.
d. Unisex Toilet Room in the County Clerk's Suite
(1) The door to the toilet room swings into the clear floor space at the lavatory. Rehang or replace the door so that it does not intrude into the clear floor space. §§ 4.1.3(11), 4.22.2, 4.13.6 & Fig. 25.
(2) There is a non-permanent cabinet in the toilet room that intrudes into the clear floor space in front of the toilet. Remove or reposition this cabinet so that it is not in the required clear floor space in front of the toilet. §§ 4.1.3(11), 4.22.4, 4.16.2 & Fig. 28.
(3) The towel dispenser is 53 inches above the finish floor with a forward approach. Reposition or relocate the dispenser so that it is no more than 48 inches above the floor for a forward approach or no more than 54 inches above the floor for a side approach. §§ 4.22.7, 4.27, 4.2.5, 4.2.6.
(4) Provide a mirror so that the bottom of its reflecting surface is not higher than 40 inches above the finish floor. §§ 4.1.3(11), 4.22.6, 4.19.6 & Fig. 31.
(5) The toilet paper dispenser is located on the back wall. Reposition or provide a dispenser on the side wall so that it is within reach as required by the Standards and is at least 19 inches above the finish floor. §§ 4.1.3(11), 4.22.4, 4.16.6 & Fig. 29 (b).
(6) There are no grab bars at the toilet area. Provide side and rear grab bars that comply with the Standards. §§ 4.1.3(11), 4.22.4, 4.16.4 & Fig. 29.
(7) The lavatory has twist-type faucets. Replace them with controls that are operable with one hand and do not require tight grasping, pinching or twisting of the wrists to operate. §§ 4.1.3(11), 4.22.6, 4.19.5, 4.27.4.
(8) The hot water and drain pipes beneath the lavatory are not insulated or configured to protect against contact. Insulate the hot water and drain pipes consistent with the Standards. §§ 4.1.3(11), 4.22.6, 4.19.4.
(9) The entrance door to the toilet room has knob hardware. Replace the knob with hardware that is easy to grasp with one hand and does not require tight grasping, pinching, or twisting of the wrist to operate. §§ 4.1.3(11), 4.1.3(7)(b), 4.13.9.
K. IMPLEMENTATION AND ENFORCEMENT
14. 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 County will submit written reports to the Department summarizing the actions the County 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.
15. If at any time the County 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.
16. 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 County 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 County, it may institute a civil action in federal district court directly to enforce title II or to enforce the terms of this Agreement.
17. 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.
18. In the event that the County fails to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department as 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 file suit to enforce title II of the ADA, or may commence proceedings to suspend or terminate its financial assistance to the County.
19. 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 County or the Department on request.
20. The effective date of this Agreement is the date of the last signature below.
21. 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 County's continuing responsibility to comply with all aspects of the ADA.
22. This Agreement will remain in effect for five years from the effective date of this Agreement, or until the parties agree that full compliance with this Agreement by the County has been achieved.
23. The person signing for Perry County, Kentucky, represents that he is authorized to bind the County to this Agreement.
For the County: For the United States:
DENNY R. NOBLE
County Judge Executive
Perry County Courthouse
481 Main Street
Hazard, Kentucky 41702
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
SUSAN BUCKINGHAM REILLY,
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-6738
October 9, 2001