SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
BIRMINGHAM, ALABAMA
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ 204-1-58
BACKGROUND
SCOPE
OF THE INVESTIGATION
The United
States Department of Justice (Department) initiated this matter as a compliance
review of Birmingham, Alabama (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 Birmingham, Alabama
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:
C to
conduct a self-evaluation of its services, policies, and practices by July 26,
1992, and make modifications necessary to comply with the Department’s title II
regulation, 28 C.F.R. § 35.105;
C to
notify applicants, participants, beneficiaries, and other interested persons of
their rights and the City’s obligations under title II and the Department’s
regulation, 28 C.F.R. § 35.106;
C to
designate a responsible employee to coordinate its efforts to comply with and
carry out the City’s ADA responsibilities, 28 C.F.R. § 35.107(a);
C to
establish a grievance procedure for resolving complaints of violations of title
II, 28 C.F.R. § 35.107(b);
C to
operate each program, service, or activity so that, when viewed in its
entirety, it is readily accessible to and usable by individuals with
disabilities, 28 C.F.R. § 35.150, by:
C delivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,
C physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department’s title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.
C to
ensure that facilities for which construction or alteration was begun after
January 26, 1992, are readily accessible to and usable by people with
disabilities, in accordance with 1) the Department’s title II regulation and 2)
the Standards or UFAS, 28 C.F.R. § 35.151;
C to
ensure that communications with applicants, participants, and members of the
public with disabilities are as effective as communications with others,
including furnishing auxiliary aids and services when necessary, 28 C.F.R. §
35.160;
C to
provide direct access via TTY (text telephone) or computer-to-telephone
emergency services, including 9-1-1 services, for persons who use TTY’s and
computer modems, 28 C.F.R. § 35.162;
C to
provide information for interested persons with disabilities concerning the
existence and location of Birmingham’s accessible services, activities, and
facilities, 28 C.F.R. § 35.163(a); and
C to
provide signage at all inaccessible entrances to each of its facilities,
directing users to an accessible entrance or to information about accessible
facilities, 28 C.F.R. § 35.163(b).
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:
C Southside Library
C Intermodal 2nd Floor
C Vulcan Park Visitor’s Center
C Hawkins Gym at Roebuck Golf Course
C Liberty National Parking
C W.C. Patton Park
C Police Administration Building Parking Lot
C Police Administration Building
C Museum of Art
C Birmingham Botanical Gardens
C Southern Museum of Flight
C W.C. Patton Park (Shields School)
C Hooper City Recreation Center
C Annex and Justice Center
C George Ward Park
C Annex and McWane Science Center
C Birmingham Public Library- Ensley Branch
C Wiggins Park
C Avondale Park
C Roebuck Golf Course
C PING
The
Department’s program access review covered those of the City’s programs,
services, and activities that operate in the following facilities:
C City Hall
C Birmingham Public Library
C Arlington Museum
C Birmingham Jail
C Sloss Furnaces
C Boutwell Parking Deck #2
C Parking Deck #3
C Parking Deck #4
C Parking Deck #5
C Parking Deck #6
C Parking Deck #7
C West Precinct
C Ensley Sears - Adult Daycare
C Alabama State Fairground
C Boutwell Auditorium
C Central Park Recreation Center
C Wiggins Park, Library and Rec Center
C Wiggins Rec Center
C Wiggins Park Swimming Pool
C Ensley Park
C Carver Theater
C Woodward Park - Hemphill Recreation Center
C Slossfield Branch Library
C East Lake Park
C Linn-Henley Library
C Birmingham Civil Rights Institute
C BCRI- Administration Office
C North Birmingham Recreation Center and Park
C Norwood Community Center
C North Precinct Station
C Legion Field
C Highland Golf Course
The
Department reviewed the City’s policies and procedures regarding emergency
management and disaster prevention, and sidewalk maintenance to evaluate
whether persons with disabilities have an equal opportunity to utilize these
programs.
Finally,
the Department reviewed Birmingham’s Police policies and procedures regarding
providing effective communication to persons who are deaf or hard-of-hearing.
JURISDICTION
1. The ADA applies to Birmingham, Alabama 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 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 Birmingham, Alabama 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 Birmingham, Alabama.
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.”
ACTIONS TAKEN BY BIRMINGHAM, ALABAMA
7. In an effort to improve accessibility
in the City of Birmingham for residents and visitors, the City has taken the
following steps:
A. The City’s 911 Center has TTY's
incorporated into the system so that each 9-1-1 call station is equipped with a
TTY or computer equivalent.
B. The City has completed a self evaluation
and a transition plan.
C. All City construction contracts contain
language requiring compliance with ADA standards.
D. The City recently spent over two million
dollars to bring the Museum of Art into compliance with the ADA.
E. The City is currently spending several
hundred thousand dollars to bring the Southern Museum of Flight into compliance.
F. Since 1990, the City has modified and
installed approximately 3,000 wheelchair curb ramps throughout the City.
REMEDIAL ACTION
NOTIFICATION
8. Within two months of the effective date
of this Agreement, the City will adopt the attached Notice (Attachment A);
distribute it to all agency heads; publish the Notice in a local newspaper of
general circulation serving Birmingham, Alabama; post the Notice on its
Internet Home Page; 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.
9. Within three months of the effective
date of this Agreement, and on yearly anniversaries of this Agreement until it
expires, the City 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’s accessible programs,
services, and activities.
ADA
COORDINATOR
10. Within three months of the effective
date of this Agreement, the City will appoint or hire one or more ADA
Coordinator(s). The ADA Coordinator(s)
will coordinate the City’s effort to comply with and carry out its
responsibilities under the ADA, including any investigation of complaint
communicated to it alleging its noncompliance with title II or alleging any
actions that would be prohibited under title II. The City will make available to all interested individuals the
name(s), office address(es), and telephone number(s) of the ADA Coordinator(s).
GRIEVANCE
PROCEDURE
11. Within three months of the effective
date of this Agreement, the City 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. 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.
GENERAL
EFFECTIVE COMMUNICATION PROVISIONS
12. 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, etc.).
13. The City will take steps to ensure that
all appropriate employees are trained and practiced in using the Relay Service
to make and receive calls.
9-1-1
14. Within three months of the effective date
of this Agreement, the City will develop procedures for answering 9-1-1 calls
that include training all call takers to use a TTY to take 9-1-1 calls, to
recognize a “silent” open line as a potential TTY call and respond by TTY, and
to ensure that TTY calls are answered as quickly as other calls received.
15. The City will monitor its incoming 9-1-1
TTY calls to ensure they are answered as quickly and accurately as other calls
received.
16. The City will incorporate correct TTY
call-taking procedures into 9-1-1 call takers’ performance evaluations and will
amend its personnel policies to include written disciplinary procedures for
call takers who fail to perform TTY call-taking consistent with the training and
procedures. The City will implement and
report to the Department its evaluation and procedures within three months of
the effective date of this Agreement.
LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION
17. Within three months of the effective date
of this Agreement, the City will adapt for its own use and implement the
Birmingham 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].
18. Within three months of the effective date
of this Agreement, the City 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 or make other appropriate arrangements (such
as contracting directly with or hiring qualified interpreters).
19. Within three months of the effective date
of this Agreement, the city will ensure that each police station or substation
and each prison or detention facility 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.
EMPLOYMENT
20. 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:
C will not discriminate on the basis of disability in its hiring or employment practices.
C will not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.
C will make
reasonable accommodations for the known physical or mental limitations of a
qualified applicant or employee with a disability upon request unless the
accommodation would cause an undue hardship on the operation of the City’s
business. If an applicant or an
employee requests a reasonable accommodation and the individual's disability
and need for the accommodation are not readily apparent or otherwise known, the
City may ask the individual for information necessary to determine if the
individual has a disability-related need for the accommodation.
C will maintain any employee’s medical records separate from personnel files and keep them confidential.
C will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the City’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
SIDEWALKS
21. Within three months of the effective date
of this Agreement, the City will implement and report to the Department its
written process for soliciting and receiving input from persons with
disabilities regarding the accessibility of its sidewalks, including, for
example, requests to add curb cuts at particular locations or to address
existing curb cuts where they are too steep.
22. Consistent with its obligations pursuant
to title II of the ADA and Section 504, within 7 years of the effective date of
this Agreement, where curb ramps or other sloped areas are not already
provided, the City will provide curb ramps or other sloped areas complying with
the Standards or UFAS at all City intersections of streets, roads, and highways
having curbs or other barriers to entry from a street level pedestrian walkway.
23. 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 any intersection
having curbs or other barriers to entry from a street level pedestrian walkway,
whenever a new street, road, or highway is constructed or altered.
24. 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 where they intersect a street, road,
or highway.
WEB-BASED
SERVICES AND PROGRAMS
25. Within 1 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).
26. Within three months of the effective date
of this Agreement, and throughout the life of the Agreement, the City will do
the following:
A. Establish, implement, and post online a
policy that its web pages will be accessible and create a process for
implementation;
B. Ensure that all new and modified web
pages and content are accessible;
C. Develop and implement a plan for making
existing web content more accessible;
D. 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
E. Periodically (at least annually) enlist
people with disabilities to test its pages for ease of use.
PHYSICAL
CHANGES TO FACILITIES
27. The elements or features of the City’s
facilities that do not comply with the Standards, including those listed in
Attachments I, J, K, and L, prevent persons with disabilities from fully and
equally enjoying the City’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.
28. The City will comply with the cited
provisions of the Standards when taking the actions required by this Agreement.
29. 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.
30. Newly Constructed Facilities: In order to ensure that the following 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
Attachment I.
31. Altered Facilities: In order to ensure that the following 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 Attachment J.
32. Program Access in 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 will take the actions
listed in Attachment K.
PROGRAM MODIFICATIONS
33. Access to City Programs Housed in
Others’ Facilities: In order to
ensure that the City’s programs, services, and activities that are the subject
of this Agreement and that are operated by the City at facilities owned or
controlled by other entities, when viewed in its entirety, are readily
accessible to and usable by persons with mobility impairments, the City will
take the actions listed in Attachment L.
MISCELLANEOUS
PROVISIONS
34. 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.
35. 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).
36. 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.
37. 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.
IMPLEMENTATION AND ENFORCEMENT
38. 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.
39. 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 provides 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. For the purposes of the sidewalk
provisions and the miscellaneous provisions as applied to the sidewalk
provisions, this Agreement will remain in effect for eight years. As to all other provisions, the Agreement
will remain in effect for four years.
45. The person signing for the City
represents that he or she is authorized to bind the City to this Agreement.
46. The effective date of this Agreement is
the date of the last signature below.
For the City of Birmingham, Alabama:
By:
____________________________
Date: ___________________________
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For the United States:
BRADLEY J. SCHLOZMAN Acting Assistant Attorney General for Civil
Rights
By:_____________________________
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
MARY LOU MOBLEY, Senior Counsel
NAOMI MILTON, Supervisory Attorney
DANA JACKSON, Investigator
MARK J. MAZZ, Architect
MICHELE ANTONIO MALLOZZI, Architect
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
Date: ______________________________
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