SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

WILMINGTON, NORTH CAROLINA

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-54-112


Press Release | Fact Sheet

BACKGROUND

SCOPE OF THE INVESTIGATION

The United States Department of Justice (Department) initiated this matter as a compliance review of the City of Wilmington, North Carolina, (City) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department´s implementing regulation, 28 C.F.R. Part 35.  Because the City receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department´s implementing regulation, 28 C.F.R. Part 42, Subpart G.

The review was conducted by the Disability Rights Section of the Department´s Civil Rights Division and focused on the City´s compliance with the following title II requirements:

As part of its compliance review, the Department reviewed the following facilities,  which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA´s new construction or alterations requirements: Parking Deck at 2nd and Market Streets, the Riverwalk along the West side of the City, Greenfield Park, Public Services and Storm Water Administration, Storm Water and Facility Operations, Fire Station 7, Fire Station 8, Fire Station 9, Fire Station 11, Halyburton Park, Wilmington Police Headquarters, Street Maintenance Department, Solid Waste Office, Sherriedale Morgan Boxing Center, Fit For Fun Center, Legion Stadium, Sunset Park, Cameron Park, Southgate Park, Hanover Heights Park, Northside Park and Earl Jackson Pool, and Maides Park.

The Department´s program access review covered those of the City of Wilmington´s programs, services, and activities that operate in the following facilities: Second Street Parking Deck between Princess and Chestnut, Second Street Parking Lot at Market Street, Hilton Park, City Hall and Thalian Hall, Hemenway Park, Municipal Center, Innes Park, Park Administration Building, Optimist Park, Godwin Stadium, Greenfield Park, Wallace Park, Rankin Park, Church and Nun Park, Nunalee Park, Thomas B. Lilly (Forrest Hills) Park, Beaumont Park (Forrest Hills),  Empie Park, Mother´s Park, Tower Park, Dram Tree Park, Wilmington City Golf Course, Martin Luther King Center, Robert Strange Park, Kennedy Park, Love Grove (Archie Blue Park), Anne McCrary Park, M. Hemenway Community Center, Triangle Park.

The Department also reviewed plans for several facilities that are under renovation or for which construction will begin shortly.  The Department provided the City of Wilmington with plan reviews and reserves the right to  review these facilities once the renovations or construction are completed.  These facilities include: Hannah Block USO Building, Wilmington Municipal Golf Course, Greenfield Amphitheater, Northside Park Bathhouse and Pool, Martin Luther King Center, and the Convention Center.

The Department reviewed the City of Wilmington´s policies and procedures regarding sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize this program.

Finally, the Department reviewed the City Police Department´s policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.

    JURISDICTION

  1. The ADA applies to the City of Wilmington because it is a "public entity" as defined by title II.  42 U.S.C. § 12131(1).
  2. The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the City of Wilmington with title II of the ADA and the Department´s title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
  3. The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the City´s compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the City 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.
  4. The parties to this Agreement are the United States of America and the City of Wilmington, North Carolina.
  5. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.
  6. In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."
  7. ACTIONS TAKEN BY THE CITY OF WILMINGTON

  8. In addition to the standard notices to employees posted at appropriate job sites in City buildings, the City also posts a notice to the public stating that the City does not discriminate on the basis of disability in the admission or access to, or treatment or employment in, its programs and activities.
  9. In addition to designating an ADA Coordinator, the City has also designated an ADA Compliance Officer to review complaints regarding the City´s ADA programs and accessibility.
  10. The City performed an original self-evaluation in preparation for the adoption of its original transition plan on July 25, 1992.  Subsequently, the City has updated the transition plan based on periodic self-evaluations.
  11. The City has adopted a grievance procedure to deal with complaints of disability discrimination.
  12. The City has adopted a policy to address requests to improve sidewalk accessibility.  As of the date of our inquiry, all requests for adding curb ramps at specific locations had been honored, and the City had spent $221,000 since 1992 to ensure the accessibility of sidewalks to persons with disabilities.
  13. The City provides sign language interpreting services through an interpreting agency.  The City also provides an amplification system for use at meetings in the City Council Chambers, and the City Council´s meeting agenda is made available in large print upon request.  The City seeks input on a regular basis from members of the Mayor´s Committee for People with Disabilities to identify deficiencies in their efforts to provide effective communications.
  14. REMEDIAL ACTION

    NOTIFICATION

  15. Within two months of the effective date of this Agreement, the City of Wilmington will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the City of Wilmington; post the Notice on its Internet Home Page in an accessible format (e.g., HTML); and post copies in conspicuous locations in its public buildings.  It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.  Copies will also be provided to any person upon request.
  16. Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the City of Wilmington will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the City of Wilmington´s accessible programs, services, and activities.
  17. GRIEVANCE PROCEDURE

  18. Within three months of the effective date of this Agreement, the City of Wilmington will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings and in an accessible format (e.g., HTML) on its official website.  It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement.  Copies will also be provided to any person upon request.
  19. GENERAL EFFECTIVE COMMUNICATION PROVISIONS

  20. Within three months of the effective date of this Agreement, the City will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, accessible electronic format, etc.).
  21. The City of Wilmington will take steps to ensure that all appropriate employees are trained and practiced in using the national 7-1-1 Relay Service to make and receive calls.
  22. LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

  23. Within three months of the effective date of this Agreement, the City will adapt for its own use and implement the City of Wilmington Police Department´s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C] and distribute to all police officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment D].
  24. Within three months of the effective date of this Agreement, the City of Wilmington will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its police department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).
  25. Within three months of the effective date of this Agreement, the City will ensure that each police station or substation is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls.  Where inmate telephone calls are time-limited, the City will adopt policies permitting inmates who use TTY´s a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.
  26. EMPLOYMENT

  27. Within three months of the effective date of this Agreement, the City will amend its employment policies, as necessary, to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630.  At minimum, those policies will provide that the City:
  28. SIDEWALKS

  29. The City will continue to implement, and report annually to the Department regarding, its process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb ramps at particular locations, including transportation stops.
  30. Within three months of the effective date of this Agreement, the City will identify and report to the Department all streets, roads, and highways that have been constructed or altered by the City since January 26, 1992, including transportation stops over which the City has jurisdiction.  Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for purposes of this Agreement.  Filling a pothole is not considered an alteration for the purposes of this Agreement.  Within three years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway, including transportation stops over which the City has jurisdiction.
  31. Beginning no later than three months after the effective date of this Agreement, the City of Wilmington will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, including transportation stops, whenever a new street, road, or highway is constructed or altered under jurisdiction of the City.
  32. Within three months of the effective date of this Agreement, the City will identify all street level pedestrian walkways under jurisdiction of the City that have been constructed or altered since January 26, 1992, including transportation stops.  Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement.   Within three years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway, including transportation stops.
  33. Beginning no later than three months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways under jurisdiction of the City where they intersect a street, road, or highway, including transportation stops.
  34. WEB-BASED SERVICES AND PROGRAMS

  35. Within one month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the City (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
  36. Within three months of the effective date of this Agreement, and throughout the life of this Agreement, the City will do the following:
    1. Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;
    2. Ensure that all new and modified web pages and content are accessible;
    3. Develop and implement a plan for making existing web content more accessible;
    4. Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and
    5. Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.

    NEW CONSTRUCTION, ALTERATIONS, AND PHYSICAL CHANGES TO FACILITIES

  37. The City will ensure that all buildings and facilities constructed by or on behalf of the City are constructed in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
  38. The City will ensure that alterations to City facilities are made in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
  39. The Department contends the elements or features of the City of Wilmington´s facilities that do not comply with the Standards, including those listed in Attachments I, J, and K, prevent some persons with disabilities from fully and equally enjoying the City of Wilmington´s services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.  This Agreement Shall not be construed as an admission of liability or discrimination by the City.
  40. The City of Wilmington will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
  41. Within three months of the effective date of this Agreement, the City will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.
  42. Newly Constructed Facilities:  In order to ensure that the spaces and elements in City facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachments I and M.
  43. Altered Facilities:  In order to ensure that the spaces and elements in City facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachments J and M.
  44. Program Access in City of Wilmington Existing Facilities:  In order to ensure that each of the City´s programs, services, and activities operating at a 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 City of Wilmington will take the actions listed in Attachments K and M.
  45. City Facilities and Programs Not Surveyed by the Department:  The City will review compliance with the requirements of Title II of the ADA for those City facilities and programs that were not reviewed by the Department.  Within 12 months of the effective date of this Agreement, the City will submit for review by the Department a detailed report listing the access issues identified during its review together with the corrective actions and completion dates proposed to resolve such issues.  The review conducted by the City, the access issues identified, and the corrective actions and completion dates proposed will be consistent with the requirements of title II of the ADA; the review of City facilities and programs conducted by the Department for purposes of this Agreement; and the access issues, corrective actions, and completion dates reflected in Attachments I, J, K, and M.
  46. MISCELLANEOUS PROVISIONS

  47. Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the City will submit written reports to the Department summarizing the actions the City has taken pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
  48. Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the City will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.  This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).
  49. Within six months of the effective date of this Agreement, the City will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The City will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.
  50. Within one year of the effective date of this Agreement, the City will deliver its training program to all City employees who have direct contact with members of the public.  At the end of that period, the City will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.
  51. IMPLEMENTATION AND ENFORCEMENT

  52. If at any time the City desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.  These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.
  53. The Department may review compliance with this Agreement at any time.  If the Department believes that the City 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 City in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provided notice to the City, 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 and Section 504 of the Rehabilitation Act.  As of the date of this agreement, the City has appropriated $566,000 to address the actions required under Attachments I, J, K and M.  The Department understands that to the extent that additional funding is required to complete such actions, this Agreement is subject to appropriations therefore by the Wilmington City Council.  Failure to appropriate funds in a timely manner to comply with this Agreement constitutes a material breach of this Agreement.  The appropriation of additional funding for remedial actions will be considered timely so long as it occurs early enough so that the City can comply with deadlines for the performance of remedial actions that are specified in this Agreement.
  54. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the City to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
  55. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
  56. This Agreement is a public document.  A copy of this document or any information contained in it will be made available to any person by the City or the Department on request.
  57. 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 (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the City´s continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
  58. This Agreement will remain in effect for three years.
  59. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.
  60. The effective date of this Agreement is the date of the last signature below.

For the City of Wilmington:

By:_______________________________
BILL SAFFO, Mayor
Wilmington City Hall
102 North Third Street  -  Post Office Box 1810
Wilmington, North Carolina 28402-1810
(910) 341-7815

ATTEST:

__________________________________ [SEAL]

City Clerk

APPROVED AS TO FORM:

__________________________________
City Attorney

This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act.
Account Number:

Project Code:

Total Amount:

__________________________________
City Finance Officer

STATE OF NORTH CAROLINA

COUNTY OF NEW HANOVER

I, ___________________________the undersigned Notary Public, do hereby certify that Penelope Spicer-Sidbury personally appeared before me, and who being duly sworn, says that she knows the common seal of the City of Wilmington and is acquainted with Bill Saffo, Mayor, of the City of Wilmington, and that Penelope Spicer-Sidbury is Clerk of the City of Wilmington and saw the said Bill Saffo, Mayor, of the City of Wilmington, sign the foregoing instrument, and saw the common seal of said City of Wilmington affixed to said instrument by said Mayor that she, the said Penelope Spicer-Sidbury, Clerk as aforesaid, signed her name in attestation of the due execution of said instrument in the presence of said Mayor of the City of Wilmington.  I certify that Penelope Spicer-Sidbury personally appeared before me this day and I have personal knowledge of the identity of Penelope Spicer-Sidbury.

Witness my hand and notarial seal, this the _____ day of ______________, 2009.

_____________________________ [SEAL]
Notary Public

____________________________
Printed Name

My Commission Expires:  _____________________

For the United States:

THOMAS E. PEREZ
Assistant Attorney General for Civil Rights

JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
JEANINE WORDEN, Deputy Chief
DOV LUTZKER, Special Counsel
Disability Rights Section

By:______________________________________    
NAOMI MILTON, Supervisory Attorney
SUNNY PIETRAFESA, Trial Attorney
BRIAN RYU, Architect

By:______________________________________
CELESTE SIMMONS, Investigator
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 307-0663
(202) 514-7821 (fax)

Date:                       November 10, 2009                      

 


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November 10, 2009