WHEREAS, the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12181-12189, provides, among other things, that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a);
WHEREAS, the term “public accommodation” under the ADA includes a “professional office of a health care provider,” 42 U.S.C. § 12181(7)(F);
WHEREAS, the ADA authorizes the United States Attorney’s Office for the Eastern District of Virginia, acting on behalf of the United States of America (the “United States”), to investigate alleged violations of Title III, and to undertake reviews of compliance of covered entities pursuant to 42 U.S.C. § 12188(b)(1)(A)(i);
WHEREAS, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States has requested information from Burke Professional Center Condominium Association (“BPCCA”), which manages the common elements of the Burke Professional Center Condominium (“BPCC”) on behalf of the owners of the condominium units therein, in connection with a compliance review of the professional center, which houses health care providers;
WHEREAS, the United States conducted a limited site inspection of certain features and facilities within BPCC;
WHEREAS, the United States and BPCCA share the goal of ensuring that BPCC operates in compliance with Title III of the ADA and its implementing regulations, 28 C.F.R. part 36; and
WHEREAS, in light of the actions taken by BPCCA to date to comply with the ADA, and the actions that BPCC has agreed to take as set forth in this Agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to BPCCA;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF BPCCA, AS FOLLOWS:
The United States Attorney's Office for the District of Connecticut and the United States Department of Justice (collectively the Department) initiated this investigation pursuant to title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.
APPLICATION AND PARTIES BOUND
- BPCC is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it houses offices of health care providers. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.
- BPCC was designed and constructed for first occupancy prior to January 26, 1993, and is an existing facility pursuant to Title III of the ADA. BPCCA does not have any records of alterations since January 26, 1992.
- To the extent that any portion of BPCC is occupied as, or designed or intended for occupancy as a residence by one or more families, it may be covered under the Fair Housing Act, 42 U.S.C. § 3601, 3602(b). Expressly excluded from the scope of this Agreement are any claims or obligations of either party under the Fair Housing Act.
- This Agreement shall apply to all common areas within BPCC that are open for public use. This includes, but is not limited to: parking lots, sidewalks and walkways leading to individual offices. This Agreement shall not apply to areas owned by individual owners.
- This Agreement shall be binding on the Owner and the Operator, and each of their agents and employees. In the event the Owner and/or Operator seeks to transfer or assign all or part of their interest in the BPCC, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Owner and/or Operator shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
- For purposes of this Agreement, the term “2010 Standards” means the 2010 ADA Standards for Accessible Design, see 28 C.F.R. § 36.104 (defining the 2010 ADA Standards as the requirements set forth in appendices B and D to 36 C.F.R. Part 1191 and the requirements contained in 28 C.F.R., part 36, subpart D).
- For purposes of this Agreement, the term “accessible” means in compliance with the 2010 Standards.
- For purposes of this Agreement, the term “1991 Standards” means the 1991 ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. D (2011)
- For purposes of this Agreement, the term "alterations" means a change to the BPCC that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, remodeling, renovation, rehabilitation, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility. See 28 C.F.R. § 36.402(b)(1).
- BPCCA shall ensure that its parking lot includes three accessible parking spaces. Further, the accessible parking spaces shall be dispersed and located on the shortest accessible route to accessible entrances. See the 2010 Standards §§ 208.2, 208.3 and 502. BPCCA shall ensure that at least one of the accessible parking spaces is a van space. Car parking spaces shall be 96 inches wide minimum and van parking spaces shall be 132 inches wide minimum, shall be marked to define the width, and shall have an adjacent access aisle complying with 502.3. Exception: Van parking spaces shall be permitted to be 96 inches wide minimum where the access aisle is 96 inches wide minimum. See the 2010 Standards §§ 208.2 and 502.2.
EXTERIOR ROUTE TO CONDOMINIUM UNIT ENTRANCES
- BPCCA shall ensure that curb ramps are provided from the parking area to the sidewalk. At least one accessible route shall be provided from accessible parking spaces to the accessible building entrances they serve. Walking surfaces with changes in level greater than ½ inch high shall be ramped, and shall comply with 405 or 406. See the 2010 Standards §§ 206.2.1, 402.2, 405 and 406.
- BPCCA shall take steps to ensure that car bumpers do not overhang the sidewalk, which reduces the clear width to less than 36 inches. The clear width of walking surfaces shall be 36 inches minimum. Parking spaces and adjacent access aisles shall be designed so that cars and vans when parked cannot obstruct the required clear width of adjacent accessible routes. See the 2010 Standards §§ 206.2.1, 402.2, 403.5, 208.2 and 502.7.
- BPCCA shall remedy the sidewalk cross slope, which varies between 1:48 and 1:20 (5.0%). The cross slope of walking surfaces shall not be steeper than 1:48. See the 2010 Standards §§ 206.2.1, 402.2 and 403.3.
CONDOMINIUM UNIT ENTRANCES
- Condominium Unit entrances are located between one riser and five risers above sidewalk level, and no accessible route is provided. At least one accessible entrance to each Unit in a facility shall comply with the 2010 Standards § 404 and shall be on an accessible route complying with the 2010 Standards § 402. Accessible routes shall consist of one or more of the following components: walking surfaces with a running slope not steeper than 1:20, doorways, ramps, curb ramps excluding the flared sides, elevators, and platform lifts. All components of an accessible route shall comply with the applicable requirements of Chapter 4. See the 2010 Standards §§ 206.4.5, 402, 404, Chapter 4. BPCCA will take the following steps: installing ramps to the three Unit spaces that have approximately one step (riser) leading into the entrance (8996 Fern Park Drive, 8983 and 8985 Hersand Drive) and provide an accessible route (new sidewalk) to the rear alternate entrance of 8987 Hersand Drive (Greater Washington Endodontic Office).
POLICIES, PRACTICES AND PROCEDURES
- Within sixty days of the effective date of this agreement, BPCCA shall provide a diagram to the owners within the BPCC that identify the remedial steps that it will take. BPCCA shall provide a copy of this diagram to the United States Attorney's Office for its approval prior to distributing to the owners within BPCC.
- The BPCCA acknowledges and agrees that any alteration to BPCC shall comply with the 2010 Standards to the maximum extent feasible. BPCCA agrees to notify the United States, in writing, of any alterations to the common elements of BPCC commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.
MONITORING AND COMPLIANCE
- BPCCA represents to the United States that it currently has limited funds in reserve and these funds are not sufficient to remedy the ADA issues. Accordingly, it must raise funds through a special assessment in order to complete the remedial work. BPCCA agrees to commence the remedial work no later than March 1, 2016. Further, the remedial work will be completed no later than March 1, 2017. Thirty days after the effective date of this Agreement, BPCCA shall provide a narrative report of the remedial work that it intends to undertake along with the approximate dates that it will undertake such work. Once all of the remedial steps specified by this Agreement are completed BPCCA will provide to the United States a narrative report with photographs of the actions it has taken to effectuate the remedial steps in the Agreement.
- Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, BPCCA shall provide to the United States a narrative report of the actions taken during the reporting period to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at BPCCA and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that BPCCA was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
- The Owner and Operator of BPCCA shall cooperate in good faith with any and all reasonable requests by the United States for access to BPCC and for information and documents concerning BPCCA's compliance with this Agreement and the ADA.
- The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of BPCC. The United States shall have the right to inspect BPCC at any time.
- If the United States believes that this Agreement or any of its requirements has been violated, it will notify the BPCCA in writing and attempt to resolve the issue or issues in good faith. If the United States and the BPCCA are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court to enforce the terms of this Agreement and/or the ADA.
- In consideration for BPCCA's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue its investigation of BPCC, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning BPCC, to initiate future compliance reviews concerning BPCC with respect to any aspect of BPCC or its operation not expressly addressed in this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning BPCC, or commences any future compliance review concerning BPCC, nothing in this Agreement shall limit the scope of any investigation or compliance review of BPCC or preclude the United States from seeking relief beyond that required under this Agreement.
- A copy of this Agreement shall be made available to any person upon request.
- The effective date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is three years from the effective date.
- This Agreement memorializes the commitments made by the BPCCA to increase accessibility of BPCC and the terms under which the United States has agreed to conclude this particular investigation of BPCC without further review or enforcement action. This Agreement is not intended to certify or signify, however, that BPCC is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect BPCCA's continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
- The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
- Failure by the United States to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
- This Agreement constitutes the entire agreement between the parties relating to the complaint, 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 Agreement, shall be enforceable.
- This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.