SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE STATE OF DELAWARE DEPARTMENT OF JUSTICE COMPLAINT NUMBERS 204-15-21

SETTLEMENT AGREEMENT BETWEENTHE UNITED STATES OF AMERICAANDTHE STATE OF DELAWAREDEPARTMENT OF JUSTICE COMPLAINT NUMBERS204-15-21



Settlement Agreement  Department of Justice Press Releases

BACKGROUND

1. SCOPE

This matter was initiated 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 the State of Delaware ("State"), and the Civil Rights Division of the Department proceeded under the authority of 28 C.F.R. Part 35, Subpart F.

Because the State 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 State's compliance with the following title II requirements:

• 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 regulations (28 C.F.R. Part 35), 28 C.F.R. §35.105;
  
  
• to notify applicants, participants, beneficiaries, and other interested persons of their rights and the State's obligations under title II and the Department's regulations, 28 C.F.R. §35.106;
  
  
• to designate a responsible employee to coordinate its efforts to comply and carry out State's ADA responsibilities, 28 C.F.R. § 35.107(a);
  
  
• to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);
  
  
• 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:
  
  
  • 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,
    
    
  • physical changes to buildings (required to be 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") or the Uniform Federal Accessibility Standards ("UFAS");
    
    
• 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;
  
  
• 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;
  
  
• where the State communicates by telephone, to communicate through a telecommunications device for the deaf (TDD), or other equally effective telecommunications system, with individuals who have hearing or speech impairments, 28 C.F.R. §35.161;
  
  
• to provide information for interested persons with disabilities concerning the existence and location of State's accessible services, activities, and facilities, 28 C.F.R. §35.163(a);
  
  
• 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).

The Department limited its program access review to those of the State's programs, services, and activities that operate in the following facilities: floors 5, 6 and 7 of the Elbert N. Carvel Delaware State Building (Carvel Building), Wilmington, Delaware; The Governor Sykes House (Sykes Building), The John Bell Office, Loockerman Square, and 102 Water Street, Dover, Delaware; and the Market Street Center, Georgetown, Delaware. The following constitute alterations that commenced after January 26, 1992: the interior of the Carvel Building, including the public toilet rooms, and the interior and parking lots of the Market Street Center. The building at 102 Water Street constitutes new construction.

1. JURISDICTION
2. The ADA applies to the State because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).
3. The Department is authorized to conduct this investigation under 42 U.S.C. § 12133 in order to determine the State'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.
4. The Department is also authorized to conduct this investigation under 28 C.F.R. Part 42, Subpart G, to determine the State'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 State 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.
5. ACTIONS TAKEN BY THE STATE
6. The State established The Architectural Access Board to review all plans and drawings for State-owned or funded facilities in order to ensure ADA compliance.
7. The State's employment policies recognize its obligation not to discriminate against qualified individuals with disabilities in all aspects of hiring and employment; to reasonably accommodate applicants and employees with disabilities upon notice of need, unless to do so causes an undue hardship; and to keep medical information confidential and separate from employees' personnel files.
8. The State conducted a self-evaluation in 1992 and developed a transition plan that same year.
9. The State has appointed an ADA coordinator to serve all State agencies, and the State Department of Justice has appointed an ADA coordinator to serve that department.
10. The State DOJ has ceased to use the Sykes Building, Loockerman Square, and the John Bell Office.
    
    The parties to this Agreement are the United States of America and the State of Delaware, acting by and through the State DOJ and the State DAS. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties hereby agree as follows:

REMEDIAL ACTION

1. 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 regarding areas covered in paragraphs 9 through 20, except as provided in paragraphs 23 and 25.
2. 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. See28 C.F.R. §§ 35.150(b)(1), 35.151. The Standards appear at 28 C.F.R. Part 36, Appendix A.
3. EFFECTIVE COMMUNICATION
4. Within 6 months of the effective date of this Agreement, the State DAS will make available portable TDD's to be provided, upon request, to any individual who is hearing or speech impaired, while being held in or visiting a State DOJ building that provides public pay phones.
5. The State will provide refresher training for all of its TDD call takers for the TDDs defined in Paragraph 11 at least annually, will continue to maintain its TDD equipment in a manner equal to its voice telephone equipment, and will test its TDD equipment and call takers on a regular basis and will keep records of the results of all test calls, beginning on the effective date of this Agreement and for at least 2 years thereafter.
6. Within 3 months of the effective date of this Agreement the State DAS will post signs or posters in several common areas of each building where the State DOJ maintains offices, in order to notify the general public that a TDD is available for public use, upon request, and provide information about how and where to request accommodations consistent with the ADA.
7. The State DOJ agrees that within 3 months of the effective date of this Agreement all letters sent to the public from any State DOJ office will have that office's TDD number printed on the letterhead.
8. SIGNAGE ON ACCESSIBLE AND INACCESSIBLE ENTRANCES
9. Within 6 months of the effective date of this Agreement, the State DAS will survey the facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible, and install signage as necessary in compliance with 28 C.F.R. § 35.163(b).
10. Within 1 1/2 years of the effective date of this Agreement, the State DAS will develop a method for providing information for interested persons with disabilities concerning the existence and location of the State DOJ's accessible services, activities, and services and submit its proposal to the Department in writing. The proposal, as approved by the Department, will be implemented no later than 2 years from the effective date of the Agreement.
11. PHYSICAL MODIFICATIONS

In order to ensure that the following facility, for which construction commenced after January 26, 1992, is readily accessible to and usable by individuals with disabilities, the State will take the following actions.

1. The State DAS shall make the following modifications to the building at 102 Water Street within 1 year of the effective date of this Agreement:
2. Entrance Ramp

(1) There is no hand rail along the inside of the ramp that is part of the accessible route from the designated accessible parking spaces at the rear of the building to the front entrance to the building. Install a handrail, along the inside of the ramp, that is between 34 and 38 inches high, has horizontal extensions at least 12 inches long beyond the top and bottom of the ramp segment, and has ends that are rounded or returned to the floor, wall, or post and otherwise comply with the Standards. §§ 4.1.2(1) 4.8.5, 4.26.

(2) The clear space on the level landings at the top of the lowest ramp run and between the next two ramp runs are 56 inches by 57 inches and 56 inches by 56 inches, respectively. Provide level landings at the top and bottom of each run that comply with the Standards. §§ 4.1.2(1), 4.3.7, 4.8.1, 4.8.4.

1. Front Entrance

(1) The inaccessible front steps, across from the municipal parking lot, have no sign directing people to the entrance ramp at the rear of the building. Post a sign directing people to the ramp. §§ 1.3.8(d), 4.30.1, 4.30.2, 4.30.3, 4.30.5, 4.30.7.

1. Second Floor Waiting Room

(1) Service Counter

The top of the service counter is 41 inches above the finish floor. Provide a counter that is at least 36 inches wide and no more than 36 inches high; or provide an auxiliary counter with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). § 7.2(2).

(2) Toilet Room

The mirror in the toilet room is mounted so that the bottom edge of the reflecting surface is 42 1/2 inches above the finish floor. Provide a mirror that is mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finish floor. §§ 4.1.3(11), 4.22.6, 4.19.6.

1. Second Floor Office Suite Toilet Room

(1) The mirror in the toilet room is mounted so that the bottom edge of the reflecting surface is 41 1/2 inches above the finish floor. Provide a mirror that is mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finish floor. §§ 4.1.3(11), 4.22.6, 4.19.6.

(2) 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.

(3) The flush control on the toilet is located on the closed side of the toilet area. Relocate the flush control on the toilet so that it is located on the side of the toilet facing the open (wide) side of the toilet area. §§ 4.1.3(11), 4.22.4, 4.16.5.

(4) The side grab bar at the toilet extends 48 inches from the back wall. Reposition or replace the grab bar so that the end nearest the back wall begins no more than 12 inches from the wall, the grab bar is at least 42 inches long, and the end farthest from the back wall is located at least 54 inches from the back wall. §§ 4.1.3(11), 4.22.4., 4.16.4 & Fig. 29(b).

1. Kitchen/Break Room

The top surface of the kitchen counter is 37 inches from the floor. Provide a counter with a surface that is between 28 and 34 inches from the floor. §§ 4.1.3(18), 4.32.4.

1. Third Floor Waiting Room

(1) Service Counter

The top of the service counter is 41 inches above the finish floor. Provide a counter that is at least 36 inches wide and no more than 36 inches high; or provide an auxiliary counter with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). § 7.2(2).

1. Third Floor Office Suite Shower Room

(1) The side grab bar at the toilet extends 48 1/2 inches from the back wall. Reposition or replace the grab bar so that the end nearest the back wall begins no more than 12 inches from the wall, the grab bar is at least 42 inches long, and the end farthest from the back wall is located at least 54 inches from the back wall. §§ 4.1.3(11), 4.23, 4.22.4., 4.16.4 & Fig. 29(b).

(2) The centerline of the toilet is 24 inches from the side wall. Remount the toilet so that the centerline is exactly 18 inches from the side wall. §§ 4.1.3(11), 4.23, 4.22.4, 4.16.2 & Fig. 28.

(3) The shower stall has the following non-compliant elements: the stall is 34 1/2 inches by 33 1/2 inches, there is a 6 inch curb at the stall opening, the control is mounted 50 inches above the floor of the shower stall, the fixed shower head is mounted 72 inches above the stall floor, there are no grab bars, there is no shower bench, and the clear floor space outside of the stall does not extend 12 inches beyond the seat wall. Provide a shower stall that is exactly 36 inches wide by 36 inches deep, has a clear floor space that is 36 inches wide by 48 inches deep extending 12 inches beyond the seat wall to enable a wheelchair user to make a lateral transfer, has a shower seat and grab bars, has controls between 38 and 48 inches above the shower floor and no more than 27 inches from the side wall, and has a shower spray unit with a 60 inch long hose. §§ 4.1.3(11), 4.23, 4.21, Fig. 35(a), Fig. 37(a).

In order to ensure that the following spaces in State DOJ facilities, for which alterations commenced after January 26, 1992, are readily accessible to and usable by individuals with disabilities, the State DAS will take the following actions.The State DAS shall make the following alterations to the Carvel Building within the time periods indicated below:

1. Front Entrance

(1) There is not adequate space provided at the landing on the ramp where the ramp changes directions, and the landing is not level. Within 2 years of the effective Date of this Agreement, the State DAS will provide a level landing at least 60 inches by 60 inches where the ramp changes direction. §§ 4.1.6(1)(b), 4.8.4.

(2) The handrails on the entrance ramp do not extend horizontally beyond the bottom of the ramp segment. Within 2 years of the effective date of this Agreement, the State DAS will provide handrails that extend at least 12 inches beyond the bottom of the ramp segment. §§ 4.1.3(1), 4.8.5(2).

1. Men's and Women's Toilet Rooms

The coat hooks on the doors in the designated accessible stalls are located 66 1/2 inches above the finish floor. Within 1 year of the effective date of this Agreement, the State DAS will provide coat hooks that are not more than 48 inches above the finish floor for a forward approach or 54 inches above the finish floor for a side approach. §§ 4.1.6(1)(b), 4.1.3(12)(a), 4.25.3, 4.2.5, 4.2.6.

1. Elevators

The highest control button in the elevator car is 60 inches above the floor. Within 1 year of the effective date of this Agreement, the State DAS will lower the car controls to be no higher than 54 inches for a side approach or 48 inches for a front approach with the emergency control no less than 35 inches above the floor. §§ 4.1.6(1)(b), 4.10.12(3).

1. The State DAS shall make the following modifications to the Market Street Center within 1 year of the effective date of this Agreement:
2. Men's Toilet Room

(1) The toilet room does not have an accessible sign. Install a sign, using raised letters and Braille, on the wall adjacent to the latch side of the door so that the centerline is 60 inches above the floor and there are no protruding objects that would prohibit a person from approaching within 3 inches of the sign. §§ 4.1.6(1)(b), 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.

(2) There is no rear grab bar at the toilet. Provide a rear grab bar that is 33-36 inches above the finish floor and is at least 36 inches long with one end no more than 6 inches from the side wall. §§ 4.1.6(1)(b), 4.22.4, 4.16.4 & Fig. 29(a).

(3) There is no side grab bar at the toilet. Provide a side grab bar that is 33-36 inches above the finish floor and is at least 42 inches long, with one end no more than 12 inches from the rear wall, extending at least 54 inches from the rear wall. §§ 4.1.6(1)(b), 4.22.4, 4.16.4 & Fig. 29(b).

(4) The toilet paper dispenser is 49 inches from the rear wall. Reposition the dispenser so that it is below the grab bar and so that it is within reach of a person who is seated on the toilet. (See § 4.16.6 & Fig. 30(d) for recommended dimensions.)

(5) The rim of the urinal is 21 3/4 inches above the floor. Provide a urinal with its rim no more than 17 inches above the floor. §§ 4.1.6(1)(b), 4.18.2.

(6) The controls for the faucet at the lavatory are twist-type handles. Replace the faucet controls with handles that can be operated with one hand and do not require tight grasping, pinching, or twisting, e.g., lever-operated, push-type, or electronically controlled mechanisms. §§ 4.1.6(1)(b), 4.19.5, 4.27.4.

(7) The bottom of the mirror is 48 1/2 inches above the floor. Provide a mirror with the bottom of the reflecting surface no more than 40 inches above the floor. §§ 4.1.6(1)(b), 4.19.6, Fig. 31.

(8) The pipes under the lavatory are not covered or otherwise configured to protect against contact. Insulate the hot water and drain pipes so as to protect wheelchair users from contact. §§ 4.1.6(1)(b), 4.19.4.

1. Women's Toilet Room

(1) The toilet room does not have an accessible sign. Install a sign, using raised letters and Braille, on the wall adjacent to the latch side of the door so that the centerline is 60 inches above the floor and there are no protruding objects that would prohibit a person from approaching within 3 inches of the sign. §§ 4.1.6(1)(b), 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.

(2) There is no rear grab bar provided. Provide a rear grab bar that is 33-36 inches above the finish floor and is at least 36 inches long and with one end no more than 6 inches from the side wall. §§ 4.1.6(1)(b), 4.1.6(3)(e), 4.22.4, 4.16.4 & Fig. 29(a).

(3) There is no side grab bar provided. Provide a side grab bar that is 33-36 inches above the finish floor and is at least 42 inches long with one end no more than no more than 12 inches from the rear wall, extending at least 54 inches from the rear wall. §§ 4.1.6(1)(b), 4.22.4, 4.16.4 & Fig. 29(b).

(4) The toilet paper dispenser is 49 inches from the rear wall. Reposition the dispenser so that it is below the grab bar and so that and so that it is within reach of a person who is seated on the toilet. (See § 4.16.6 & Fig. 30(d) for recommended dimensions.)

(5) The controls for the faucet at the lavatory are twist-type handles. Replace the faucet controls with handles that can be operated with one hand and do not require tight grasping, pinching, or twisting, e.g., lever-operated, push-type, or electronically controlled mechanisms. §§ 4.1.6(1)(b), 4.19.5, 4.27.4.

(6) The bottom of the mirror is 48 1/2 inches above the floor. Provide a mirror with the bottom of the reflecting surface no more than 40 inches above the floor. §§ 4.1.6(1)(b), 4.19.6, Fig.31.

(7) The pipes under the lavatory are not covered or otherwise configured to protect against contact. Insulate the hot water and drain pipes so as to protect wheelchair users from contact. §§ 4.1.6(1)(b), 4.19.4.

1. Parking

The designated accessible parking space is not served by a demarcated adjacent access aisle and is not identified as van-accessible. Provide at least one van-accessible parking space that is at least 96 inches wide served by an access aisle at least 96 inches wide and install a sign designating the space as "van-accessible." §§ 4.1.2(5)(a)& (b), 4.6.3 & Fig.9, 4.6.4.

In order to ensure that each of the State's programs, services, and activities operating at a facility that is a subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the State will take the following actions.

1. The State DAS shall make the following modifications to the Carvel Building within1 year of the effective date of this Agreement:
2. Public Telephone

(1) The telephone does not have volume controls, it is not hearing aid compatible, and there is neither a shelf or electrical outlet provided . Provide a telephone that has hearing aid compatibility, a volume control, and a shelf and an electrical outlet to accommodate a TDD. §§ 4.31.5, 4.31.9(2) & Fig. 44.

(2) The coin slot on the telephone is 57 3/4 inches above the floor. Provide a public telephone that has its highest operable part no higher than 48 inches above the floor for a forward approach or 54 inches for a side approach. §§ 4.2.5, 4.2.6, 4.31.3.

1. Auditorium

There is only one handrail on the entrance ramp to the auditorium. Install a handrail on the other side of the ramp that is between 34 and 38 inches high, has horizontal extensions at least 12 inches long beyond the top and bottom of the ramp segment, and has ends that are rounded or returned to the floor, wall, or post and otherwise comply with the Standards. §§ 4.8.5, 4.26.

IMPLEMENTATION AND ENFORCEMENT

1. Except as otherwise specified in this Agreement, at 90 and 180 days after the effective date of this Agreement, and thereafter at yearly anniversaries for the two years following the effective date, the State DAS or the State DOJ, as appropriate, will submit written reports to the Department summarizing the actions each 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.
2. If at any time the State 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.
3. 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 provide notice to the State 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 State, 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 State DOJ. Any such action will be filed not later than 180 days after the expiration of the Agreement, which occurs two years after the effective date.
4. 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.
5. In the event that the State 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 State DOJ. Any such action will be filed not later than 180 days after the expiration of the Agreement, which occurs two years after the effective date.
6. 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 State or the Department on request.
7. The effective date of this Agreement is the date of the last signature below.
8. 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 State's continuing responsibility to comply with all aspects of the ADA.
9. The persons signing for the State represent that they are authorized to bind the State of Delaware to this Agreement.