Enforcing the ADA: A Status Report Update from the Department of Justice (April-June 1994) The Americans with Disabilities Act (ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA's requirements in three areas -- Title I: Employment practices by units of State and local government Title II: Programs, services, and activities of State and local government Title III: Public accommodations and commercial facilities This Status Report Update covers the ADA activities of the Department of Justice during the second quarter (April-June) of 1994. Copies of the earlier April 4, 1994, Status Report, which summarizes all activities up to that date, are available through the ADA Telephone Information Line. I.Enforcement Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in approximately 250 cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations. A.Litigation The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $50,000 for the first violation and $100,000 for any subsequent violation. 1. New lawsuits The Department initiated, or intervened in, the following lawsuits. Title II Gorman v. Guitars and Cadillacs, L.P.--The Department intervened in this suit to defend the constititutionality of title II. The Department has also filed an amicus brief arguing that title II covers police arrest procedures. (See "amicus briefs," below.) Title III United States v. Lira Limited Liability Co.--The Department filed its first lawsuit for violations of the alterations provisions of title III against the owners of the Barolo Grill, a restaurant in Denver, Colorado. The Barolo's owners altered the restaurant in November 1992 without complying with the ADA when they constructed a raised dining area with no ramp or lift for persons who use wheelchairs. The owners also failed to make any path of travel modifications, leaving the restaurant's entrance inaccessible, and failed to remove existing barriers to access where readily achievable. United States v. Pleasant Travel Service, Inc. and Hawaiian Hotels and Resorts, Inc.--The Department filed its first title III action against a hotel, the Royal Lahaina Resort, in Lahaina, Hawaii (on the Island of Maui). The suit alleges that the owner and operator of the hotel failed to remove architectural barriers to access and made alterations to the hotel that did not comply with the ADA's architectural standards. The hotel has approximately 540 guest rooms, suites and cottages, none of which is accessible to individuals with disabilities. In addition, none of the restrooms in the common area of the hotel are accessible; and there are barriers to access in the hotel's restaurants, tennis courts and swimming pools. In undertaking alterations to the hotel's luau grounds, gift shop, and swimming pool area, the owner and operator failed to provide accessible paths of travel to the altered areas. 2. Consent decrees Some litigation is resolved at the time that the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which they are entered. Title III United States v. Becker C.P.A. Review--In a consent decree resolving the first case filed by the Department of Justice under the ADA, Becker C.P.A. Review, which prepares over 10,000 students annually to take the national certified public accountant exam, agreed to amend its auxiliary aids policy. Becker will no longer limit its offered auxiliary aids to audiotape transcripts prepared for the instructors' use, and will provide appropriate auxiliary aids and services, including qualified sign language interpreters and assistive listening devices, to students with hearing impairments. The company may require a student to attend a consultation meeting, at which time the student would explain his or her individual needs and means of communication. Becker would explain the nature of the class and the proposed auxiliary aid or service. However, Becker may request that the student try its proposed aid or service at a Becker class prior to the session that the student wishes to attend. If the student can articulate, based on experience or skills, why the proposed aid or service will not provide effective communication, the student will not be requested to try out the proposed auxiliary aid or service. Becker also agreed to appoint a national ADA coordinator and to train its staff regarding the policy revision; pay $20,000 to the Department of Justice to be distributed to seven deaf and hearing impaired individuals, former Becker students; and establish a $25,000 scholarship fund for accounting students who have hearing impairments at California State University. United States v. Harcourt Brace Legal and Professional Publications, Inc.--A consent decree resolved this suit against the auxiliary aids policies of Harcourt Brace Legal and Professional Publications regarding Bar/Bri, the nation's largest preparatory course for individuals studying for bar examinations. The Department's complaint alleged that the Bar/Bri course failed to provide appropriate auxiliary aids to students with vision and hearing impairments. Under the consent decree, filed simultaneously with the complaint, Harcourt Brace agreed to establish a detailed set of procedures for identifying and providing appropriate auxiliary aids and services, including qualified sign language interpreters, assistive listening devices, and Brailled materials, to students with disabilities. In addition, Harcourt Brace has agreed to pay $28,000 in compensatory relief. This award is divided among two students; the California Department of Rehabilitation, which provided the interpreter for one of the students; and the individual who converted the course materials into Braille for the other student. Harcourt Brace also agreed to pay $25,000 in civil penalties, adopt and implement a formal written policy ensuring that auxiliary aids and services are promptly and properly provided, educate Bar/Bri staff regarding students with disabilities, and include information regarding the availability of auxiliary aids and services for students with disabilities in its advertising materials. 3. Amicus briefs The Department files briefs in selected ADA cases in which it is not a party in order to guide courts in interpreting the ADA. Title II Crowder v. Kitigawa--The Department filed an amicus brief in the United States Court of Appeals for the Ninth Circuit supporting a challenge to Hawaii's 120-day animal quarantine program for all dogs, cats, and other carnivores entering the State. The brief argues that title II prohibits discrimination against individuals with disabilities in all actions of State and local governments, including the quarantine requirements, not just in the "services" or "benefits" they provide, and that there are nondiscriminatory alternatives to the quarantine system which could both protect against rabies and allow individuals with guide dogs to travel freely to Hawaii. Hawaii maintains that the quarantine is necessary to protect against the introduction of rabies into Hawaii. The private plaintiffs, however, allege that the quarantine discriminates against individuals with disabilities who use guide dogs by making it virtually impossible for them to travel to or from Hawaii. The Federal district court ruled against plaintiffs who appealed to the United States Court of Appeals for the Ninth Circuit. Gorman v. Guitars and Cadillacs, L.P.--The Department filed an amicus brief in this case arguing that police arrest procedures are covered by title II. The Department also intervened as a party to defend against allegations that title II is unconstitutionally vague. The plaintiff has paraplegia and uses a wheelchair. His lawsuit alleges that the owner and operators of Guitars & Cadillacs, a country western bar, violated his rights under title III of the ADA by refusing to allow him access to the bar where the dance floor is located, and by subsequently having him arrested for trespass when he asserted his right to remain there. The plaintiff also alleged that members of the Kansas City Police Department, the department's chief of police, and members of the department's Board of Commissioners discriminated against him under title II of the ADA by a failure to make the reasonable modifications in its policies, practices, and procedures necessary to ensure safety during arrest and transportation to the police station. This failure resulted in personal injuries and damage to the plaintiff's wheelchair while he was in custody. Livingston v. Guice--The U.S. District Court for the Western District of North Carolina dismissed this case in which the Department had filed an amicus brief arguing that States may be sued for damages under title II. This private suit alleges that the State of North Carolina and a State court judge violated title II of the ADA by preventing the plaintiff from entering a courtroom through the only accessible entrance known to her. In dismissing the case, the court held that because of the doctrine of judicial immunity, the judge, and therefore, the State could not be held liable. Ellen S. v. Florida Board of Bar Examiners--The Department filed an amicus brief supporting a challenge to mental health inquiries made by the Florida State Board of Law Examiners in certifying candidates for admission to the Florida Bar. Florida asks candidates whether they have ever sought treatment for or been diagnosed as having a nervous, mental, or emotional condition, or have ever taken any psychotropic medication. Bar applicants who answer affirmatively must sign a consent form authorizing the release of any and all mental health records. The amicus brief argues that the inquiries are unnecessary and that the Board's procedures unnecessarily impose burdens on people with disabilities in violation of title II. B. Formal Settlement Agreements The Department has resolved a number of cases without filing a lawsuit, by means of formal written settlement agreements. Title II Fulton, Missouri--The Department settled a complaint filed against the Municipal Court for the City of Fulton and the Office of the Clerk of the Municipal Court. The complaint alleged that the city did not ensure effective communications with persons who are deaf or hard of hearing. The city has agreed to provide appropriate auxiliary aids and services; provide training for personnel; publish a policy that provides reasonable modifications in policies, practices, and procedures for people with disabilities; incorporate instructions for obtaining reasonable modifications in policies, practices, and procedures into the existing language on its traffic citations; and work with the county government to ensure that the municipal courtroom in the county courthouse is accessible. Waukesha, Wisconsin--Resolving a complaint by a Waukesha city alderman who uses a wheelchair alleging that the city hall was inaccessible, the city agreed to hold its closed deliberations in the accessible room in which it holds general meetings, renovate the first floor men's and women's bathrooms to comply with ADA standards, install two automatic door openers at the building's front entrance, and renovate a van accessible parking space. Berkeley, California--Agreement was reached with the City of Berkeley, California, to ensure direct access to its 9-1-1 emergency services. Berkeley will modify its current practices to ensure that the services provided to individuals who use TDD's are as effective as those provided to others. The city will also install one TDD at each of the answering stations, provide training of emergency service calls takers in the proper operation of TDD's, and develop and implement a public education program to promote the use of 9-1-1 by individuals who use TDD's. Wadsworth, Ohio--Resolving a complaint alleging that the city hall and city court were inaccessible to individuals with mobility impairments, the City of Wadsworth agreed to make alternative arrangements for program accessibility until a new city hall is completed in the spring of 1995, upgrade its parking facilities and entryway to ensure access to individuals with disabilities, inform and train all city managers and employees on its policies and procedures for providing accessibility to individuals with disabilities, and adopt and publish grievance procedures for prompt and equitable resolution of complaints alleging actions prohibited by title II. Alexandria, Louisiana--In response to a complaint alleging that a person who is deaf was denied effective communication during a court proceeding because a sign language interpreter was not provided, the Alexandria City Court agreed to provide auxiliary aids when necessary for effective communication and adopted a policy for the provision of sign language interpreters. A telecommunication device for the deaf (TDD) was also purchased. Atlanta, Georgia--The Georgia World Congress Center Authority has agreed to make significant alterations to the Georgia World Congress Center, a large convention facility, and one of the proposed venues for the 1996 Olympic Games. The alterations include widening doors to the auditorium; providing accessible seating for people who use wheelchairs; providing alternatives to turnstile entrances to food service areas; altering specific features in designated food service areas; and altering telephones, restrooms, door hardware, and water fountains. Genesee County, Michigan--The County Board of Commissioners agreed to make restroom facilities in the probate court house accessible to individuals with mobility impairments. Title III Anthony's Pier 4 Restaurant, Boston, Massachusetts--Settlement agreements were reached with the owners and operators of Anthony's Pier 4 restaurant in Boston, Massachusetts, and three other restaurants in the Boston area. Anthony's Pier 4 is one of the five largest restaurants in the United States. The agreements call for a variety of changes to the facilities, including provision of accessible parking spaces, accessible entrances, accessible dining areas, and accessible restrooms. In particular, the agreement with Anthony's Pier 4 calls for reconstructing the front of the restaurant to provide an accessible entrance and accessible restrooms, construction of a ramp to provide access to an outdoor patio, and installation of a mechanical wheelchair lift to provide access to the banquet and meeting rooms on the second floor of the facility. The other three restaurants covered by the agreements are in Swampscott and Yarmouthport, Massachusetts. At each of those, there will be accessible parking, an accessible main entrance, accessible seating areas, and accessible restrooms. Finally, all of the restaurants have adopted policies for serving customers with disabilities. Arlington, Virginia--Exxon Gas Station in Arlington, Virginia agreed to provide gas dispensing services to persons with disabilities and implement a procedure that would ensure that persons with disabilities could bypass the electronic card reader devices when dispensing their own gasoline. Furthermore, Exxon agreed to install detailed signage describing this procedure. Hickory, North Carolina--The Department settled a complaint against the owners of the Life Enhancement Center health club regarding allegations that the health club had excluded an individual who uses a wheelchair from the pool and jacuzzi. The health club owners later allowed him to use the pool, jacuzzi, and other equipment, but only if he wore a protective helmet at any time he was out of his wheelchair. Several aspects of the newly constructed facility failed to meet the ADA new construction standards. Under the settlement agreement, the owners agreed to change their previous policies and to allow persons who use wheelchairs to use the pool and jacuzzi, eliminate the protective helmet requirements, and make all changes necessary to bring the facility into compliance with the new construction standards by June 15, 1994. C. Other settlements The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements. Title II Access to facilities The entrance to the building housing a New England State law library was renovated along with the restrooms servicing the library to make the facility accessible to persons with mobility impairments. The library also revised its policy to ensure that appropriate auxiliary aids and services will be provided when necessary. A Colorado county with an inaccessible elevator and restroom in its court house agreed to install a call button in the elevator so persons with disabilities can call for assistance, alter the elevator to carry a greater maximum weight, and make structural changes to the restrooms. A western State department of corrections retrofitted a prison van with a wheelchair lift, developed procedures for providing physical therapy, constructed a ramp to provide access to a prison library, and leveled the entrance to a shower in a cellblock. Effective communication A western State department of prisons agreed to reschedule a parole hearing so that it could provide a sign language interpreter for an inmate, and agreed to provide a TDD for the facility where the inmate was housed. Title III Access to facilities A national rental car company is now offering a wide variety of rental cars equipped with hand controls to customers with disabilities at all corporately-owned locations across the country due to the Department's enforcement efforts. Additionally, the company is now installing steering knobs free of charge to customers who request them. Hand controls and steering knobs enable persons who have limited use of their lower extremities to drive. A Denver restaurant, accessible only by a steep flight of stairs or by narrow winding corridors, agreed, as a readily achievable alternative to barrier removal, to prepare and deliver meals to persons with disabilities who lived within three miles of the restaurant and to advertise the availability of this service. A Louisiana motel, part of a national franchise, agreed to provide accessible parking spaces, provide an accessible entrance to the front lobby, lower a portion of the front desk, and modify six guest rooms to make them accessible (including two rooms with roll-in showers). The complaint alleged that an individual who uses a wheelchair called the company's 800 reservations number and requested an accessible room in the Baton Rouge area. He was informed that none of the motels associated with the national franchise in that area had accessible rooms. A luxury hotel in a large Virginia city agreed to provide two accessible restrooms in the lobby area, accessible signage throughout the building, and six accessible guest rooms. A retail fabric store in a small California city has modified one of the store's entrances so that it is accessible to persons with disabilities. Wider doors and an opening device were installed to enable persons with disabilities to enter the store unassisted. Appropriate directional signage was also installed. Small town gas stations in Utah and Wyoming agreed to provide dispensing services for persons with disabilities and not to charge prices above ordinary self-serve prices for such services. An exercise training facility operating on two floors in a large California city agreed, as a readily achievable alternative to barrier removal, to open a space on the first floor, which was ordinarily reserved for personalized training, to persons unable to gain access to the second floor. The facility also agreed not to charge additional fees, unless personalized training was requested. An Atlanta, Georgia, location of a national chain restaurant acquired a portable ramp and installed a doorbell for use by those persons who need access to the ramp. Because of the restaurant's location, installation of a permanent ramp was not readily achievable. The owners of a shopping center in Lexington, South Carolina, built a curb ramp and established accessible parking. A Denver restaurant installed a curb ramp to make the front entrance accessible. Effective communication A large, independent California bookstore agreed to provide sign language interpreters upon request for poetry readings that it sponsors and holds at the bookstore. The store will also specify that the service is available in its advertising for the poetry readings. Four New York performing arts theaters have installed assistive listening systems, purchased receivers equal in number to at least four percent of available seats, and posted signs indicating the availability of these devices. An intercity bus company purchased and installed TDD units at banks of public phones in a large east coast city bus terminal and agreed to ensure that the TDD's are properly maintained. Policies and procedures The Department resolved a complaint against a Jacksonville, Florida, chain restaurant alleging that the manager of the restaurant refused to allow a person with a hearing impairment who was accompanied by a service animal into the restaurant. The restaurant agreed to educate its employees as to the need to make reasonable modifications in policies, practices, and procedures for all people with disabilities, including individuals with hearing impairments who use service animals. D.Investigations The Department is currently investigating over 1000 complaints against public accommodations and commercial facilities under title III. The Department also, on its own initiative, is reviewing plans for new construction and alterations of various types of facilities in locations around the country. In addition, the Department is currently investigating nearly 900 complaints against units of State and local government under title II. Seven other Federal agencies are also investigating title II complaints and may refer cases to the Department of Justice for litigation. The Department also has a number of investigations under way under title I against public employers. (Enforcement of title I against private employers is handled by the EEOC.) II. Certification of State and local building codes The ADA authorizes the Department to certify State or local laws or building codes that meet or exceed the ADA's accessibility requirements. This is a voluntary program in which States and localities can choose to participate. In a jurisdiction whose law or code has been certified, when a new public accommodation or other commercial facility is built, or an existing facility is altered or expanded, compliance with the local regulations will give the building owner and other responsible parties rebuttable evidence of compliance with the ADA if the building's accessibility is later challenged under the ADA. The Department is reviewing requests for certification from the State of Washington, the City of New York, the State of New Mexico, the State of Utah, and the State of Florida. The Department is also reviewing requests for technical assistance from the Council of American Building Officials (CABO) on behalf of the American National Standards Institute (ANSI) A117.1 committee, the Building Officials and Code Administrators International (BOCA), and the National Parking Association. Title II Proposed Rule The Department of Justice has published in the Federal Register a proposed rule to amend the regulations implementing title II and titles III of the ADA. The Department is currently seeking public comment on the proposed amendments. Comments must be received in writing on or before August 19, 1994. The proposal would adopt the ADA Accessibility Guidelines as the ADA Standards for Accessible Design for new construction and alterations covered by title II of the ADA. Under the proposed amendment, title II entities would no longer have the option to apply the Uniform Federal Accessibility Standards. The proposed rule would also amend the ADA Standards in several ways and add sections 11 through 14, dealing with judicial, legislative, and regulatory facilities, detention and correctional facilities, residential housing, and public rights- of-way. Finally, the proposal would publish the amended ADA Standards for Accessible Design as part 37 of 28 C.F.R., deleting them from Appendix A of part 36 of 28 C.F.R., and would amend title III to refer to part 37. III. Technical assistance The ADA requires the Department of Justice to provide technical assistance to entities and individuals with rights and responsibilities under the ADA. The Department encourages voluntary compliance by providing education and technical assistance to business, industry, government, and members of the general public through a variety of means. ADA Telephone Information Line The Department of Justice now provides toll-free "800" service for both voice and TDD callers who have questions about title II and title III of the ADA, including the Standards for Accessible Design. Under its expanded hours of operations, operators may be reached from 10:00 a.m. to 6:00 p.m. (EDT), Monday through Friday (except Thursdays, 1:00 p.m. to 6:00 p.m.). The system has been upgraded to accommodate a larger number of callers simultaneously and to provide Spanish language service. Callers may hear recorded information and order materials at any time day or night. The information line numbers are: Nationwide 1-800-514-0301 (voice) 1-800-514-0383 (TDD) Washington, D.C., area 202-514-0301 (voice) 202-514-0383 (TDD) Grants Section 506 requires the Department to provide technical assistance to entities and individuals affected by title II and title III of the ADA. This section also authorizes the Department to award grants to individuals and non-profit entities for the purpose of supplementing the Department's technical assistance efforts. The Department of Justice's solicitation for applications for its fiscal year 1994 Americans with Disabilities Act (ADA) Technical Assistance Grant Program was published in the Federal Register on June 3, 1994. The ADA Technical Assistance Grant Program is designed to develop and implement strategies to disseminate information to entities and individuals with rights and responsibilities under title II and III of the ADA. The goal of the program is to increase understanding of, and facilitate voluntary compliance with, the ADA nationwide. Applications will be accepted until August 2, 1994. Publications Copies of the Department of Justice's regulations for titles II and III of the ADA, the ADA Questions and Answers booklet, the ADA Handbook (limited quantities available), and information about the Department's technical assistance grant program can be obtained by calling the Department's toll-free ADA Telephone Information Line at the number listed above or writing to the address listed below. These materials are available in standard print, large print, Braille, audiotape, and computer disk. U.S. Department of Justice Civil Rights Division Public Access Section Post Office Box 66738 Washington, D.C. 20035-6738 These materials are also available through the Department of Justice's ADA electronic bulletin board at 202-514-6193. Copies of the Department of Justice's Technical Assistance Manuals for titles II and III can be obtained by subscription from the Government Printing Office. The subscription for the Title II Manual, which includes annual supplements through 1996, costs $24. The subscription for the Title III Manual with supplements through 1996 costs $25. Call the ADA Telephone Information Line to obtain an order form. Copies of legal documents and settlement agreements mentioned in this publication can be obtained by writing to: Freedom of Information/Privacy Act Branch Room 7337 Civil Rights Division U.S. Department of Justice Washington, D.C. 20530 IV. Other sources of ADA information The Equal Employment Opportunity Commission offers technical assistance to the public concerning title I of the ADA. For ordering documents 1-800-669-3362 (voice) 1-800-800-3302 (TDD) For questions 1-800-669-4000 (voice) TDD: use relay service The U.S. Department of Transportation offers technical assistance to the public concerning the public transportation provisions of title II and title III of the ADA. ADA documents and general questions 202-366-1656 (voice) 202-366-2979 (TDD) ADA legal questions 202-366-9306 (voice) 202-755-7687 (TDD) Nat'l Easter Seal Society "Project Action" grant 202-347-3066 (voice) 202-347-7385 (TDD) Air Carrier Act questions 202-376-6406 (voice) The U.S. Architectural and Transportation Barriers Compliance Board, or "Access Board," offers technical assistance to the public on the ADA Accessibility Guidelines. ADA documents and questions 800-872-2253 (voice & TDD) 202-272-5434 (voice) 202-272-5449 (TDD) The National Institute on Disability and Rehabilitation Research (NIDRR) of the U.S. Department of Education has funded centers in ten regions of the country to provide technical assistance to the public concerning title I, title II, and title III of the ADA. ADA technical assistance (800) 949-4232 (voice & TDD) The Federal Communications Commission offers technical assistance to the public concerning title IV. ADA documents and general questions 202-632-7260 (voice) 202-632-6999 (TDD) ADA legal questions 202-634-1808 (voice) 202-632-0484 (TDD) Complaints and Enforcement 202-632-7553 (voice) 202-632-0485 (TDD) V. How to file complaints Title I Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 1800-669-4000 for the field office in your area. Title II Complaints about violations of title II by units of State and local government should be filed with -- U.S. Department of Justice Civil Rights Division Coordination and Review Section Post Office Box 66118 Washington, D.C. 20035-6118 (202) 307-2222 (Voice) (202) 307-2678 (TDD) Title III Complaints about violations of title III by public accommodations and commercial facilities should be filed with -- U.S. Department of Justice Civil Rights Division Public Access Section Post Office Box 66738 Washington, D.C. 20035-6738