SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE CITY OF FORSYTH, MONTANA
DEPARTMENT OF JUSTICE
COMPLAINT NUMBER 204-44-42

I. BACKGROUND

A. SCOPE OF THE INVESTIGATION

The United States Department of Justice ("Department") initiated this matter as a compliance review of the City of Forsyth, Montana, ("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.

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:

• 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 City's obligations under title II and the Department's regulations, 28 C.F.R. § 35.106;
• 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 City communicates by telephone, to communicate through a teletypewriter ("TTY"), 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 the City'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 City's programs, services, and activities that operate in the following facilities: City Hall, Municipal Pool, and Transfer Station, and the polling services in Forsyth High School and the County Court House.

B. JURISDICTION

1. The ADA applies to the City because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).

2. The Department is authorized to conduct this compliance review under 42 U.S.C. § 12133 in order to determine the City'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.

3. The parties to this Agreement are the United States of America and the City of Forsyth, Montana. In order to avoid the burdens and expenses of further investigation and possible litigation, the parties hereby agree as follows:

II. 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.

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. See 28 C.F.R. §§ 35.150(b)(1), 35.151. The Standards appear at 28 C.F.R. Part 36, Appendix A.

3. Within 180 days of the effective date of this Agreement, the City shall correct the following to ensure that programs offered at City Hall are readily accessible to and usable by individuals with disabilities.

   1. Parking.

      1. There are no designated accessible parking spaces. There are approximately 8 spaces in the lot. Provide one van accessible parking space complying with the Standards. Standards §§ 4.1.2(5)(a) and (b).

      2. There is no signage directing patrons from the inaccessible main entrance to the accessible side entrance. Provide signage complying with the Standards. Standards §§ 4.1.2(7)(c), 4.30.

      3. The route from the parking lot to the accessible side entrance is not accessible because it extends into vehicular traffic and there is a 2½ inch change in level at the end of the walkway. Alter this area so that the route does not cross vehicular traffic and is flush and free of abrupt changes in level. Standards § 4.7.2.

   2. City Council Chambers. The City Council Chambers have no assistive listening system available. Provide an assistive listening system with 1 receiver, and provide signage in the room and in the lobby of the City Hall indicating that the equipment is available. Standards §§ 4.1.3(19)(b), 4.30, 4.33.

   3. Men's and Women's Toilet Rooms.

      1. Signage consists only of an indication of gender painted on the door. Provide signage using raised and Brailled characters, on the wall adjacent to the latch side of the door. Standards §§ 4.1.3(16)( a), 4.30.4, 4.30.5, 4.30.6.

      2. The women's room entrance door requires 15 pounds of force to open. Adjust or replace the door closer to ensure that no more than 5 pounds of force is required to open the door. Standards § 4.13.11(2)(b).

      3. The designated accessible stalls measure 39 inches wide and 72 inches deep and have only side grab bars. Provide a unisex accessible toilet room at least 60 inches wide and 59 inches deep such that all of the stall's elements, including entry door, water closet, size and arrangement, toe clearances, grab bars, coat hook, and toilet paper and seat cover dispensers comply with the Standards. Standards §§ 4.16, Figure 30, 4.25.3, 4.26, 4.27.

      4. There are storage cabinets located underneath the lavatory in the women's restroom. Remove cabinets and alter the counter at the accessible lavatory to provide knee clearance of at least 29 inches. If pipes are exposed, insulate the hot water and drain pipes. Standards §§ 4.19.2, 4.19.4.

      5. The hot water and drain pipes beneath the lavatory in the men's toilet room are exposed. Install insulation on the pipes. Standards § 4.19.4.

      6. The lavatory controls in each restroom require tight grasping, pinching or twisting of the wrist to operate. Provide controls on the designated accessible lavatories that are operable with one hand and do not require tight grasping, pinching or twisting of the wrist. Standards §§ 4.19.5, 4.27.4.

4. Within 180 days of the effective date of this Agreement, the City shall correct the following to ensure that programs offered at the Municipal Pool are readily accessible to and usable by individuals with disabilities.

   1. Parking. There are no accessible parking spaces provided. Establish a van accessible parking space in compliance with the Standards. Standards §§ 4.1.2(5)(a) and (b), 4.6, 4.3.

   2. Men's and Women's Locker room/toilet room.

      1. The coat hooks over the changing areas in each locker room measure 63 inches from the floor. Provide at least one coat hook in each locker room that is not more than 54 inches high for a side reach. Standards §§ 4.2.6, 4.25.3.

      2. The hot water and drain pipes beneath the lavatories in each locker room were exposed. Install insulation on the pipes under the designated accessible lavatories. Standards § 4.19.4.

      3. The lavatory controls in each locker room require tight grasping, pinching or twisting of the wrist to operate. Provide controls on the designated accessible lavatories that are operable with one hand and do not require tight grasping, pinching or twisting of the wrist. Standards §§ 4.19.5, 4.27.4.

      4. The shower stall does not have a shower spray unit and the controls are not operable without tight grasping, pinching or twisting of the wrist. Provide a shower spray unit with a hose at least 60 inches long or a fixed shower head at 48 inches above the finish floor that does not require tight grasping, pinching or twisting of the wrist to operate. Standards §§ 4.21.5, 4.21.6, 4.27.4

III. 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 of the effective date, the City will submit written reports to the Department summarizing the actions the City 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 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 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 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 directly to enforce title II or to enforce the terms of this Agreement.

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 City 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 or may declare the Agreement null and void and file suit to enforce title II of the ADA.

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 City 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 City's continuing responsibility to comply with all aspects of the ADA.

9. This Agreement will remain in effect for three years from the effective date of this Agreement, or until the parties agree that full compliance with this Agreement by the City has been achieved.

10. The person signing for the City of Forsyth represents that he is authorized to bind the City to this Agreement.

For the City:

__________________________________      Date:___________
MAYOR DANIEL MURION
P.O. Box 226
Forsyth, Montana 59327-0226

For the United States:

BILL LANN LEE,
Acting Assistant Attorney General
for Civil Rights