SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

KEN MASCARA, SHERIFF OF ST. LUCIE COUNTY

DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-18-181


 

  1. The parties to this Settlement Agreement ("Agreement") are the United States of America and Ken Mascara, Sheriff of St. Lucie County ("Sheriff").
  2. This matter was initiated by two complaints filed with the United States Department of Justice ("United States") against the Sheriff. The complaints alleged that the Sheriff violated title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, by denying effective communication for a qualified individual with disabilities, denying an equal opportunity to participate in or benefit from the services, programs, or activities of the Sheriff, or otherwise subjecting the individual to discrimination by the Sheriff. The first complaint alleged that in 2003, the Sheriff failed to take appropriate steps to provide appropriate auxiliary aids and services, including qualified interpreters, necessary to ensure effective communication with the complainant during his incarceration in the County Jail, despite his repeated requests for such services. The second complaint alleged that in January 2007, the Sheriff did not secure a qualified interpreter when necessary to ensure effective communication with another individual who is deaf and uses sign language at the County Jail. Instead, the Sheriff used a deputy Sheriff as an interpreter but he was not a qualified interpreter because he did not possess the skill level necessary to provide interpreting services. The Sheriff denies these allegations.
  3. The ADA applies to the Sheriff because it is a public entity as defined in title II of the ADA. 42 U.S.C. § 12131 and 28 C.F.R. § 35.104.
  4. The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter, to determine the Sheriff's compliance with title II and the Department's implementing title II regulation, issue findings, and, where appropriate, 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 of Justice fail to secure voluntary compliance pursuant to subpart F.
  5. By signing this Agreement, the Sheriff does not admit that its current services, policies, and practices related to the detention of individuals at the County Jail are in violation in any respect with the ADA or its implementing regulation.
  6. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit in this action. Despite the existence of factual disputes, the parties hereby agree to resolve this matter as set forth below.

Appropriate Auxiliary Aids and Services

  1. The Sheriff shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, the Sheriff's services, programs, and activities for persons incarcerated or detained at the County Jail. In determining what type of auxiliary aid and service is necessary, the Sheriff shall give primary consideration to the requests of the individual with a disability. "Primary consideration" means that the Sheriff must honor the choice expressed by the individual with a disability unless it can demonstrate that another equally effective means of communication is available, there would be a fundamental alteration in the service, program, or activity, or the use of the means chosen would result in undue financial and administrative burdens. In order for the Sheriff to demonstrate that providing a particular auxiliary aid or service would threaten the core functions of jail administration, maintaining safety and internal security, the Sheriff must 1) document both the nature and severity of security risk that the particular aid would pose as an undue burden, and 2) complete an individualized assessment of the needs of the prisoner or detainee and provide alternative auxiliary aids that ensure effective communication to the maximum extent feasible.

Telecommunication Devices for the Deaf (TTY's)

  1. Within ninety (90) days of the effective date of this Agreement, the Sheriff will have at least three (3) TTY's available on site at the County Jail.
  2. The Sheriff shall make TTY's available to inmates with hearing or speech impairments, as well as to hearing inmates to communicate with individuals who have hearing or speech impairments. The Sheriff shall make TTY's and telephones available upon request to the same extent telephones are made available to other inmates. After an inmate has requested to use a TTY, the Sheriff's staff shall promptly provide it.
  3. A TTY shall be made available for use by inmates with hearing or speech impairments, as well as to hearing inmates to communicate with individuals who have hearing or speech impairments, in all inmate areas where telephones are available for inmate use, such as in housing units, day rooms, infirmaries, and health service units. The Sheriff will provide electrical outlets, as necessary, to provide inmates with hearing or speech impairments equal access to TTY's and telephones as other inmates have to telephones.
  4. Telephone calls placed using a TTY take three to five times longer than telephone calls placed using standard voice telephone equipment. Accordingly, the Sheriff will allow inmates using a TTY at least three times the length of time permitted for voice communication where the Sheriff imposes time limitations on inmates using the telephone. A written policy permitting TTY users extra time will be developed and implemented within 90 days of the effective date of this Agreement. The Sheriff will ensure that telephones that are set to cut off after a certain amount of time are reprogrammed to permit TTY callers the requisite extra time.
  5. Where telephones are available to the public, a TTY shall be made available to visitors upon request. Signage will be displayed at all public telephones indicating the availability of the TTY and the procedure for obtaining it.
  6. In noncontact visiting areas and televisiting areas where visitors and inmates communicate by telephone, the Sheriff will make TTY's available to both visitors and inmates during the visit upon request. The Sheriff will provide electrical outlets for this purpose as necessary.
  7. The Sheriff will maintain TTY's in working order and ensure that inmates with hearing or speech impairments are able to make TTY calls. The Sheriff will test its TTY's on a regular basis and no less than every three months. TTY testing shall occur, at a minimum, wherever inmates with hearing or speech impairments are housed. Technical difficulties shall be referred to the ADA Coordinator (see Paragraph 30, below) and shall be promptly resolved. The ADA Coordinator shall keep records, subject to the Department's review, of the facility's TTY testing dates, all technical difficulties or inmate complaints, and resolutions.

Telephones

  1. Within ninety (90) days of the effective date of this Agreement, the Sheriff will maintain at least one telephone with volume control in each inmate housing area where there are telephones for inmate use and wherever telephones are available to the public.

Relay Service

  1. The Sheriff shall take the steps necessary to provide inmates and visitors toll-free access to either 7-1-1 or "1-800" numbers for the purpose of calling telephone relay services. Each correctional institution and correctional center will test access to telephone relay services on a regular basis and no less than every three months. Testing shall occur, at a minimum, wherever inmates with hearing or speech impairments are housed. Technical difficulties shall be referred to the ADA Coordinator and shall be promptly resolved. The ADA Coordinator shall keep records, subject to the Department's review, of the facility's testing dates, all technical difficulties or inmate complaints, and resolutions.
  2. In recognition of the fact that members of the public who have speech or hearing impairments may call the Sheriff using telephone relay services, the Sheriff agrees to instruct employees to accept telephone calls from the relay service.

Sign Language Interpreters

  1. For the purposes of this Agreement, the term "qualified sign language interpreter" means a person who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary. Someone, including a Sheriff employee, who has only a rudimentary familiarity with sign language or finger spelling is not a qualified interpreter. Likewise, someone who is proficient in sign language, but who does not possess the ability to process spoken communication into the proper signs or to translate an individual's signed or finger spelled communication into spoken words, is not a qualified sign language interpreter. A Sheriff's Office employee may not act as an interpreter if his or her presence poses a conflict of interest or raises confidentiality and/or privacy concerns, except in cases of emergency (e.g., to assist in communicating with a suicidal inmate while waiting for a qualified interpreter to arrive). However, the Sheriff may hire interpreters and/or use employees as interpreters if they are qualified (as defined above) and there are no conflicts of interest, confidentiality or privacy concerns. Occasionally, an inmate may possess the skill level necessary to provide interpreting services; however, due to confidentiality, privacy, and security concerns, inmates shall not be used as sign language interpreters except in cases of emergency or when an inmate with a hearing or speech impairment specifically requests that a particular inmate be allowed to interpret for him/her. Similarly, the Sheriff may never require or coerce an inmate's family member, advocate, or friend to be used as a sign language interpreter except in cases of emergency or when an inmate with a hearing or speech impairment specifically requests that the family member, advocate, or friend be allowed to interpret for him/her.
  2. The Sheriff will provide, upon request, qualified sign language interpreters for inmates with hearing or speech impairments for the following situations: initial intake/assessment and evaluation; all orientations; all judicial or administrative hearings, including all disciplinary hearings or meetings to discuss discipline; all programs or group sessions that are offered and for which successful completion may expedite release or parole; all parole hearings; all educational classes, including vocational or job training; all religious services; and all scheduled appointments, meetings, group and individual sessions with doctors, nurses, counselors, social workers, or mental health professionals. For on-going, regularly scheduled events, such as religious services, the Sheriff agrees to provide interpreters for the entire event and on a regular basis. In other situations in which there are less than four (4) hour notice of the requirement for an interpreter, the Sheriff will use its best efforts to provide a qualified sign language interpreter.
  3. The Sheriff will enter one or more contracts with an interpreter service provider(s) to provide qualified sign language and oral interpreters at the request of the Sheriff.
  4. In order to allow inmates who are deaf or hard of hearing to communicate with others, the Sheriff will not prohibit inmates who are not deaf or hard of hearing from learning and/or using sign language for the purposes of communicating with inmates who are deaf or hard of hearing.
  5. Subject to safety and security concerns, the Sheriff will permit inmates with hearing or speech impairments to have access to a writing utensil and paper in order to allow them to communicate with others.

Closed Captioning

  1. Within ninety (90) days of the effective date of this Agreement, the Sheriff will survey all television sets viewed by inmates or visitors to ensure that they are capable of closed captioning and replace those television sets that are not capable of closed captioning with sets that are capable of closed captioning in order to enable inmates and visitors who are deaf or hard of hearing to enjoy the same opportunity for television viewing as that afforded others.
  2. Within ninety (90) days of the effective date of this Agreement, the Sheriff will adopt and implement a policy that requires closed captioning to appear on all television sets when requested by an inmate with a hearing impairment.
  3. Within one hundred-eighty (180) days of the effective date of this Agreement, all videotapes shown by the Sheriff, such as orientation videotapes or movies, will be captioned.

Hearing Aids and Batteries

  1. The Sheriff shall purchase and keep appropriate types of hearing aid batteries in stock in the facility's health services unit during the length of time an inmate(s) who wears a hearing aid is in custody. The Sheriff shall provide replacement hearing aid batteries to inmates requesting them as soon as possible, but in no event later than 24 hours after such request. The cost for batteries shall be borne by the inmate.
  2. Upon request to repair a hearing aid, the Sheriff shall send inmate hearing aids to a hearing aid repair company as soon as possible, but in no event later than 24 hours after such request. The Sheriff shall inform the inmate as soon as possible when his or her hearing aid was sent for repair and when it is expected to be returned by the repair company. The cost for repairs shall be borne by the inmate.

Announcements/Intercom

  1. The Sheriff will effectively communicate all information that is announced over a public address system or intercom for inmates and visitors with hearing and/or speech impairments. An inmate who is deaf or hard of hearing and who does not hear an announcement shall not be penalized in any way because of his or her disability.
  2. In facilities where inmates have access to an intercom in their cells, the Sheriff shall ensure that Sheriff staff respond to inmates with hearing or speech impairments in an effective manner (e.g., by going to the cell to check on the inmate).

ADA Coordinator

  1. Within ninety (90) days of the effective date of this Agreement, the Sheriff will designate one of his employees as the ADA Coordinator who will handle all questions, concerns, or complaints regarding accessibility from inmates or visitors with disabilities. The Sheriff will forward the names, addresses, and telephone numbers of the designated ADA Coordinator to the Department within ninety (90) days of the effective date of this Agreement.
  2. The ADA Coordinator will attend at least one conference or training per calendar year addressing ADA compliance and accessibility issues.
  3. Within ninety (90) days of the effective date of this Agreement, the ADA Coordinator will be trained in how to use a TTY.
  4. The Department may review compliance with this Agreement at any time. If the
    Department believes that the Sheriff has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Sheriff 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 thirty (30) days of the date it provides written notice to the Sheriff, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II of the ADA.
  5. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Sheriff to fail to comply in a timely manner with any of its requirements without obtaining advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
  6. 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.
  7. This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
  8. The person signing for the Sheriff represents that he or she is authorized to bind the Sheriff to this Agreement.
  9. This Settlement Agreement constitutes the entire agreement between the parties relating to Department of Justice No. 204-18-181 and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Settlement Agreement, including its attachments, shall be enforceable.
  10. The effective date of this Agreement is the date of the last signature below.
For the Sheriff of St. Lucie County Office For the United States:


  WAN J. KIM
Assistant Attorney General


JOHN WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
RENEE L. WOHLENHAUS, Deputy Chief


By:_________________________
KEN MASCARA
Sheriff
St. Lucie County
4700 West Midway Road
Ft. Pierce, Florida 34981-4825
By:_________________________
ROBERT J. MATHER,
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave, NW
NYA Building
Washington, DC 20530
(202) 307-2236


Date: April 12, 2007 Date: April 12, 2007

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