Enforcing the ADA A Status Report from the Department of Justice (July-September 1994) This Status Report covers the ADA activities of the Department of Justice during the third quarter (July-September) of 1994. Copies of the April 4, 1994, Status Report (which summarizes all activities up to that date) and the April-June 1994 Update are available through our 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 nearly 300 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 1. 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. Jack H. Castle, D.D.S., Inc. d/b/a Castle Dental Center - In the first AIDS-related settlement with a dental service under the ADA, a Houston dental office will pay $100,000 in damages and penalties for refusing to treat a patient who revealed that he was HIV-positive. Under the proposed consent order defendant Castle Dental Center, a large chain of dental offices in the Houston area, will pay $80,000 in compensatory damages to a person who was denied dental services because of HIV status, the largest amount of damages obtained to date by the Department on behalf of a complainant. The owner of the Center and its management company will each pay a $10,000 civil penalty to the Federal Government. The defendants will also provide full and equal services to persons with HIV or AIDS, train their staff in nondiscriminatory treatment of persons with HIV or AIDS, and send periodic reports to the Department so that compliance with the order can be monitored. 2. 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 Helen L. v. Didario - The Department filed an amicus brief in the U.S. Court of Appeals for the Third Circuit challenging the Pennsylvania Department of Public Welfare's (DPW) refusal to provide attendant care services to an individual with a mobility impairment who needs such services in order to live at home with her two children. In order to obtain the assistance that she needs, she was required to enter a DPW-maintained nursing home even though she does not need nursing care. Pennsylvania agrees that the most appropriate setting for the plaintiff is in the attendant care program. The State also agrees that attendant care for the plaintiff in her home would cost Pennsylvania $9,300 less per year than nursing home care. However, the State asserts that the attendant care program is underfunded and that the plaintiff must continue on the waiting list. The Departments brief argues that the title II regulation, which requires public entities to provide services in the most integrated setting appropriate to the needs of the individual with a disability, mandates, in this particular situation, that the plaintiff be permitted to enter the attendant care program. Clark v. Virginia Board of Bar Examiners -- The Department filed an amicus brief supporting a challenge to inquiries into past treatment for mental illness made by the Virginia Board of Bar Examiners in certifying candidates for admission to the Virginia Bar. The court had earlier ruled that it lacked jurisdiction to consider a challenge to the State's bar admission procedures. It also held that the plaintiff had not presented enough evidence as to her mental health condition to establish that she was an individual with a disability who would be entitled to bring an ADA lawsuit on this issue. After the Department filed its amicus brief in support of plaintiffs motion for the court to reconsider its decision, the court reversed its earlier ruling. It agreed with the Departments position that it did indeed have jurisdiction over the plaintiffs claims and that she had standing to bring the lawsuit. The case will now proceed to trial. Ellen S. v. Florida Board of Bar Examiners -- In another bar examiner case challenging mental health inquiries, the U.S. District Court for the Southern District of Florida rejected the Florida Board of Bar Examiners motion to dismiss, as urged by the Department in its June 29, 1994, amicus brief. Livingston v. Guice -- The Department filed an amicus brief with the U.S. Court of Appeals for the Fourth Circuit in support of plaintiffs appeal in a title II suit against the State of North Carolina and a State court judge. The suit, brought by a person who uses a wheelchair, charges 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. The U.S. District Court for the Western District of North Carolina had dismissed the case on the grounds of judicial immunity. The Department's brief in the Fourth Circuit argues that, under Supreme Court judicial immunity cases and the ADA, the State judge is not immune from the claim for injunctive relief made in this case and that the State is not immune from the claim for monetary damages. LRCAB v. Laconia, New Hampshire -- This case involved a challenge to a city zoning board's decision to deny a special use permit that would have allowed the operation of a center providing services for homeless persons with mental illness. The Department filed an amicus brief arguing that zoning actions could be challenged under title II of the ADA and that the court should not abstain pending a state court review of the zoning decision. The court then issued an order declining to abstain but deferred ruling on the issue of whether zoning decisions are covered by title II. Title III Fiedler v. American Multi-Cinema, Inc. -- The Department filed an amicus brief with the U.S. District Court for the District of Columbia arguing that existing motion picture theaters with more than 300 seats must disperse wheelchair seating locations to the extent it is readily achievable to do so. The plaintiff, a person with a mobility impairment who uses a wheelchair, sued American Multi-Cinema, Inc., claiming that its practice of providing only two wheelchair seating locations in the last row of a 374-seat motion picture theater in Union Station in Washington, D.C., violated the ADA. The Departments brief also argues that the privately operated movie theater at issue is a covered place of public accommodation under title III even though it is housed in leased space in a facility owned by the Federal Government. In addition, the brief challenges the defendants assertion that wheelchair users seated somewhere other than in the last row of an existing theater would always constitute a direct threat to the health and safety of other patrons in the event of an emergency. Posner Dismissed without Ruling on Religious Exemption -- The Department intervened in Posner v. Central Synagogue to defend the constitutionality of title III's religious exemption in a case alleging violations of the ADA by a synagogue nursery school. The U.S. District Court for the Southern District of New York granted summary judgment for the defendant without deciding the constitutional issue. IHOP Case Moot Because of Restaurant Fire -- The Department intervened in Pinnock v. International House of Pancakes, a suit alleging that a San Diego restaurant failed to engage in readily achievable barrier removal, in order to defend the constitutionality of title III of the ADA. In October 1993, the district court ruled in the Departments favor and granted summary judgment to the United States on the constitutional issues. Because the restaurant was destroyed by fire, the U.S. Court of Appeals for the Ninth Circuit dismissed the defendants appeal as moot. B. Formal Settlement Agreements The Department sometimes resolves cases without filing a lawsuit, by means of formal written settlement agreements. Title II Los Angeles, California -- The City of Los Angeles has agreed to take major steps to improve the accessibility of its 9-1-1 emergency telephone services to persons who use telecommunication devices for the deaf (TDD's). The formal agreement resolves a complaint alleging that the City failed to respond to a 9-1-1 call made by a mother who is deaf. After her two-year-old son suffered a head injury, the mother called 9-1-1 on a TDD. After three tries to reach the 9-1-1 center by TDD, she gave up and took her son to the hospital herself. In the settlement agreement, the City agreed to install TDD-compatible equipment at approximately 30 answering stations; properly maintain TDD accessible features, with backup systems in place in the event that the equipment becomes inoperable; provide training for emergency services call-takers in the proper operation of TDD's; and undertake a public education program to promote the use of 9-1-1 by individuals who use TDD's. Assistant Attorney General Deval L. Patrick has sent a letter to 250 mayors informing them of the Los Angeles / 9-1-1 agreement and reminding them of their obligation to provide direct access for TDD users to their 9-1-1 systems. Pinellas County, Florida -- The Pinellas County Sheriffs Office entered a formal agreement involving auxiliary aids issues. The agreement resolves a complaint alleging that the Sheriffs Office did not secure the services of a qualified interpreter for an inmate who was deaf and failed to provide him with a TDD so that he could make outgoing calls. The Sheriffs Office agreed to maintain the additional TDD's that it purchased, to permit inmates and visitors to have access to 800 numbers for the purpose of making calls through telephone relay services, and to establish procedures for securing the services of qualified interpreters whenever necessary to ensure effective communication with individuals who are deaf or hard-of-hearing. Minnehaha County, South Dakota -- In the first settlement agreement involving public fairs, Minnehaha County has agreed to a wide range of measures to ensure accessibility at the Sioux Empire Fair. The County has agreed to renovate several bathrooms, install two TDD's at pay phones, create an accessible path of travel through the livestock barns and other areas at the Fairgrounds, install and upgrade accessible parking, make the vending and ticketing counters and booths accessible, provide materials to Fair volunteers and patrons regarding the accommodations available for disabled patrons, and adopt a policy that equalizes the number of companion tickets to Fair concerts that patrons with mobility impairments can buy as compared to other patrons. Title III Avis Inc., Garden City, New York -- Through a negotiated settlement agreement, the Department resolved its investigation of Avis, Inc., the country's second largest car rental establishment. Under the agreement, Avis has committed to providing rental vehicles equipped with hand controls to persons with disabilities at all corporately-owned locations. Hand controls will be available on eight hours notice in all major airport locations and on 24 or 48 hours notice at other facilities, depending on certain factors. Avis agreed to provide training at all corporate locations. Avis will urge all existing licensees to adopt the same measures, and will require all new franchisees and those renewing their contracts to follow the agreement. The agreement also references two previously-resolved investigations, where Avis has made substantial changes to its rental policies to accommodate persons with disabilities. When renting to persons who do not use credit cards, Avis will allow persons who are unemployed due to a disability to substitute verifiable disability-related income in lieu of a verifiable employment history. Also, persons who cannot drive due to a disability will now be able to rent cars in their own name and maintain financial responsibility for a car rental when they are accompanied by a licensed driver. 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 A Kentucky county court agreed to adopt and publicize a policy requiring court proceedings to be relocated to an accessible location upon reasonable notice from a person with a mobility impairment. A small New York town agreed to provide accessible paths from parking to viewing positions at its public baseball fields and install power-assisted doors and accessible water fountains and restrooms in its town hall. A Colorado county agreed to provide for accessibility at its courthouse by making changes to its elevator and restrooms. Policies and procedures A west coast State committee of bar examiners agreed to provide an individual with a learning disability an additional testing day for the July 1994 bar exam. Title III Access to facilities A Manchester, New Hampshire, pub installed a ramp at its front entrance. The owners of a Denver fast food establishment regraded an area of the parking lot to make it level with the restaurants entrance and installed two accessible parking spaces. A Pensacola, Florida, restaurant located on the second floor of a two-story building agreed to make all menu selections from the second floor restaurant available at an accessible location on the first floor of the facility at no additional charge. A gift shop in a small town in Minnesota agreed to install a ramp to the front entrance. A California museum built a new accessible unisex restroom and modified another set of restrooms to have an accessible stall, lavatory, and other elements. A Colorado inn built a ramp at one of the inns entrances. A small town Louisiana fast food chain restaurant relocated its accessible parking spaces so that they are directly in front of the entrance. The owners of a medical office building in a small town in Louisiana provided three accessible parking spaces and ramps to a walkway that had formerly impeded access. An auto supply store in a small Indiana town removed posts that were barriers to its check-out aisle. An upstate New York athletic club agreed to install a ramp to its indoor running track area and to make its weightlifting equipment accessible. A Colorado-based rental car company purchased universal hand controls for its rental car fleet and made cars equipped with these controls available on two days or less notice under most circumstances. The company also modified its policies so that persons with disabilities no longer have to test drive hand control equipped rental cars. A Wyoming outlet of a national chain of discount department stores restriped its parking lot to provide accessible spaces, installed automatic entrance doors, and agreed to modify its lunch counter to be accessible. The owners of two motels in Branson, Missouri, restriped the motels parking lots to have accessible parking spaces on the shortest accessible route to rooms and amenities, and installed curb ramps. A restaurant in a small town in North Carolina, part of a national family restaurant chain, restriped the parking lot to have accessible spaces on the shortest accessible route to the building entrance. The Des Moines, Iowa, affiliate of a nationwide rental car company will provide hand controls for persons with disabilities. Effective communication The operators of a multiplex motion picture theater in New York City acquired a permanently installed assistive listening system for each of its six auditoriums and purchased receivers for these systems equal in number to at least four percent of the available seats. An Idaho ski resort lodge acquired equipment necessary to make seven of its rooms accessible to persons with hearing impairments, acquired a TDD for its front desk so that customers who use TDD's will have access to in-room services available to other customers, and agreed to provide training to its staff in the proper use of the equipment. A Missouri hotel is now providing TDD's and other devices to hotel guests who have hearing impairments. Policies and procedures Seven gas stations in western States agreed to pump gasoline at no extra charge for persons with disabilities (when there is more than one attendant on duty) and to post signs at the pumps notifying customers of this service. D. Investigations The Department is currently investigating nearly 1100 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 1400 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 Equal Employment Opportunity Commission.) II. Certification The ADA authorizes the Department of Justice 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 buildings accessibility is later challenged under the ADA. In July 1994, the Department notified the State of Washington that its review has revealed a few remaining areas in which the Washington code is not fully equivalent to the ADA and indicated that, upon correction of those problems, a preliminary certification of the code could be issued. The Washington request was the first request for certification received by the Department. The Department's initial review revealed that the Washington accessibility code, although very progressive, was not fully equivalent to the ADA. Therefore, the Department provided substantial technical assistance to assist the State to make its code equivalent. The State of Washington is now proposing to amend its code to correct the problems identified by the Department. This process is expected to be completed by mid-November. Requests for certification have also been received from New Mexico, Utah, Florida, and the City of New York. Technical assistance has been requested by 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 is now reviewing the comments on its proposed rule to amend the regulations implementing title II and title III of the ADA. The public comment period closed on August 19, 1994. The proposed rule 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 38 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 38. 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 of the ADA 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 for the purpose of supplementing the Department's technical assistance efforts. Under the 1994 Technical Assistance Grant Program, the Department awarded ten grants to the following organizations: Access Video Fund -- to develop, produce, and distribute a 30-minute documentary, to be aired nationally, to educate the public on the ADA, dispel myths and stereotypes about people with disabilities, and illustrate the positive impact of the ADA on the lives of people with disabilities. The Arc -- to produce educational materials for police departments and courts about the rights of persons with mental retardation in law enforcement and judicial proceedings; and to continue to reach out to small businesses across the country, to conduct ADA training sessions, and to operate a toll-free ADA technical assistance line that provides information to Spanish-speaking entities and individuals. Home Builders Institute -- to distribute ADA educational materials produced by the Department of Justice to 190,000 local building contractors, construction tradespeople, and individuals in construction training programs throughout the country. Key Bridge Foundation -- to train 90 professional mediators in Dallas-Fort Worth, Detroit, Los Angeles, New York, and Orlando-Tampa on the ADA, develop a consumer and mediator guide, and mediate up to 600 ADA complaints. The National Trust for Historic Preservation -- to develop and distribute an ADA self-study course for the 1,863 local historic preservation commissions and boards throughout the country to assist in identifying accessibility issues and practical solutions for providing access without destroying a building's historic character. Adaptive Environments -- to continue a project incorporating universal design concepts and specific ADA "how-to" materials into the curricula of architecture, interior design, industrial design, and landscape architecture schools and programs across the country. Chief Officers of State Library Agencies (COSLA) -- to expand upon a project that placed ADA materials in 15,000 libraries throughout the country, with an emphasis on ADA videotapes, Spanish translations of ADA material, and additional documents developed by the Department's prior grantees. Disability Rights Education and Defense Fund (DREDF) -- to continue to operate a toll-free ADA information line (1-800-466-4232 (voice & TDD)) to assist persons with disabilities and covered entities with inquiries about the requirements of the ADA, increasing the availability of technical assistance throughout the country, especially for citizens living in the Mountain and Pacific time zones. Police Executive Research Forum (PERF) -- to expand educational materials for police officers about persons who are deaf, persons with epilepsy, and persons with mental illness. 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 Departments 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 and yearly updates 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 Attorney General Launches National Public Education Campaign As part of its continuing effort to educate Americans about the ADA, the Judice Department has launched a major national public education campaign. The campaign, which seeks to increase awareness of the landmark law and encourage voluntary compliance, includes distributing public service announcements to media markets and informational kits to libraries across the country. The public service announcements, which include both radio and television spots, feature Attorney General Janet Reno stressing the importance of the law. The following 60-second radio spot, entitled "Getting In the Door," will be distributed to over 1,000 radio stations: BACKGROUND: Martin Luther King saying, "I have a dream." ATTORNEY GENERAL JANET RENO: Talk about "civil rights" and people think about a lot of things ... Martin Luther King, the March on Washington, the women's fight for equality. But for one out of seven Americans, equality means just being able to get in the door, make a phone call, hear a movie, or get a job. Now, thanks to the Americans with Disabilities Act, the simplest things in life are no longer barriers to Americas 49 million people with disabilities. I'm Janet Reno, U.S. Attorney General. If you're not sure what's required under the Americans with Disabilities Act, please call 1-800-514-0301 or visit your local library. Again, that's 1-800-514-0301. Because the ADA isn't just the way things should be -- now its the law. Two other television spots, which run for 30 and 15 seconds, will be distributed to over 1,800 television stations. Additionally, the Justice Department is providing 15,000 public libraries with an ADA Information File. The file was developed and distributed with the help of the Chief Officers of State Library Agencies. In announcing this educational effort at Washington's Martin Luther King Library, Reno stated that "the library is the center of community life where people from all walks of life go to get the information they need." The file includes over 30 documents offering general information on the Ada's requirements as well as specific information on how various entities can comply with the law. The documents were developed by the Department of Justice and its grantees and other federal agencies. To ensure the success of the campaign, the Justice Department will ask citizens to encourage television and radio stations in their communities to air the public service announcements. If a station has not already received the announcements, please contact Lee Douglass, Department of Justice Office of Public Affairs at (202) 616-2765. 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) 202-366-4567 (TDD) ADA legal questions 202-366-1936 (voice) 202-366-0748 (TDD) Complaints and enforcement 202-366-2285 (voice) 202-366-0153 (TDD) National Easter Seal Society Project Action grant 202-347-3066 (voice) 202-347-7385 (TDD) The Federal Communications Commission offers technical assistance to the public concerning title IV of the ADA. ADA documents and general questions 202-418-0500 (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) 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 1-800-872-2253 (voice) 1-800-993-2822 (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 nationwide 1-800-949-4232 (voice & TDD) The Job Accommodation Network (JAN) is a free telephone consulting service funded by the President's Committee on Employment of People with Disabilities. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace. Information on workplace accommodation 1-800-526-7234 (voice & 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 1-800-669-4000 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