Settlement Agreement Between The United States Of America And The City Of North Myrtle Beach, South Carolina

Department of Justice Complaint No. 204-67-28

This Settlement Agreement ("the Agreement") is entered into by the City of North Myrtle Beach, South Carolina ("the City") and the United States of America, through the United States Department of Justice, Civil Rights Division, Disability Rights Section ("the Department").

This matter was initiated by a complaint filed with the Department under title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ァァ 12131-12134. Department of Justice Complaint No. 204-67-28 alleges that several programs operated by, and facilities owned by, the City are inaccessible to individuals with disabilities.

The Department is authorized under 28 C.F.R. Part 35 to investigate this complaint to determine whether the City has complied with title II of the ADA. The Department is authorized to investigate the facts, issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Department is authorized to bring a civil action enforcing title II of the ADA should it fail to secure a voluntary compliance agreement.

Because the City and the United States desire to settle this matter without resort to litigation, the parties agree to the following:

  1. In consideration for the City's performance of its obligations under this Agreement, the Department agrees to refrain from undertaking further investigation of Department of Justice Complaint No. 204-67-28 or from filing a civil suit arising from Department of Justice Complaint No. 204-67-28.
  2. The City will prepare a self-evaluation report, as required by 28 C.F.R. ァ 35.105. The City will:
    1. evaluate each of its services, programs, and activities, and
    2. determine whether any are not readily accessible to and usable by individuals with disabilities, as required by 28 C.F.R. ァ 35.150.

    If the City determines that any service, program, or activity is not readily accessible to and usable by individuals with disabilities, it shall identify both an interim and a permanent modification to make the service, program, or activity accessible.

  3. In preparing the self-evaluation report, the City shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate by submitting comments.
  4. The City will submit the self-evaluation report to the Department within 90 days of the effective date of this Agreement. The Department will either accept or reject the self-evaluation report. If the Department rejects the self-evaluation report, it shall identify revisions that would make the report acceptable. If the City does not state, in writing, within thirty days of receiving the Department's revisions, that it accepts the revisions, the Department may re-open the investigation of Department of Justice Complaint No. 204-67-28 with respect to the self-evaluation report and 28 C.F.R. ァ 35.105.
  5. The City will implement all interim modifications or renovations proposed in the self-evaluation report within thirty days of receiving the Department's acceptance of the self-evaluation report or within thirty days of the City's acceptance of the Department's revisions. The City will implement all permanent modifications or renovations proposed in the self-evaluation report within 180 days of receiving the Department's acceptance of the self-evaluation report.
  6. No later than the 180th day after receiving the Department's acceptance of the self-evaluation report, the City will submit to the Department a final report on compliance with the ADA.
  7. If the City desires to modify any portion of the self-evaluation report or its timetable for implementation because changed conditions make performance impossible or impracticable, it shall notify the Department in writing, setting forth the facts and circumstances thought to justify the modification. The City must also provide a proposed alternative provision. The proposed modification is not effective until the Department approves it in writing.
  8. In order to ensure effective communication with people with hearing impairments in the City's programs, activities and services, the City agrees:
    1. To provide, at the City's expense, appropriate auxiliary aids and services, including qualified interpreters, when necessary.
    2. To give primary consideration to the requests of individuals with disabilities in determining what type of auxiliary aid or service is necessary.
    3. To notify people with hearing impairments about the availability of auxiliary aids and services and the procedures for requesting such auxiliary aids and services. The City will distribute this information through posters posted conspicuously in all City offices, through pamphlets and other written information distributed by the City, and through other appropriate means.
  9. The City will adopt Attachment A as its formal policy for the provision of auxiliary aids and services. Attachment A shall be included in the City's operations manual.
  10. The City will adopt Attachment B as the formal effective communication policy of its police department. Attachment B shall be included in the police department's manual for officers. Attachment B shall also be distributed to every officer and employee of the police department within 30 days of the effective date of this Agreement. Instruction regarding this policy will be included in all trainings of police officers and supervisory and administrative personnel of the police department.
  11. The City will post a copy of the notice contained in Attachment C in all places where notices to the public, employees, and job applicants are normally posted. The notice will be posted within ten days from the effective date of this Agreement and will remain posted for one year thereafter.
  12. The City will designate one or more employee(s) as an ADA Compliance Coordinator(s). The ADA Compliance Coordinator(s) will work with people with disabilities who need to use the City's programs and services. Within thirty days of the effective date of this Agreement, the City agrees that its ADA Compliance Coordinator(s) will:
    1. attend a seminar concerning a public entity's obligations under title II of the ADA; or
    2. view an educational videotape concerning a public entity's obligations under title II of the ADA. If the entity elects this option, the educational videotape will be specified by the Department and the Department will give the City instructions on how to obtain a copy of the videotape.
  13. The ADA Compliance Coordinator(s) will distribute a copy of the documents contained in Attachments A and C to all City employees within thirty days of the effective date of this Agreement.
  14. In the event that the City fails to comply in a timely manner with any provision of this Agreement, or with any provision of the self-evaluation report, without obtaining the Department's advance approval (as provided for in Paragraph 7), the Department may either:
    1. notify the City that the Settlement Agreement is no longer operative and may re-open the investigation of Department of Justice Complaint No. 204-67-28; or,
    2. institute a civil action seeking to have the terms of this Agreement and the self-evaluation report enforced in the appropriate federal court.
  15. The City agrees that the Department may review compliance with this Agreement and/or the self-evaluation report at any time.
  16. The parties agree that this Agreement is neither an admission by the City of any violation of the ADA, nor an admission by the Department of the merits of any of the City's potential defenses.
  17. The City agrees that it will not discriminate or retaliate against any person because of his/her participation in this matter.
  18. This Agreement is a public document. The City will make a copy of this Agreement, along with the self-evaluation report and Attachment A, available to any person on request.
  19. This Agreement does not purport to remedy any potential violations of the ADA or any other law that is not specifically addressed in this Agreement. This Agreement does not affect the City's continuing responsibility to comply with all aspects of the ADA.
  20. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
  21. Failure by the Department of Justice to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
  22. This Agreement constitutes the entire agreement between the parties relating to Department of Justice Complaint No. 204-67-28, 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 Agreement, shall be enforceable.
For the City of North Myrtle Beach:

By:_______________________      Date:__________________
   JOHN P. SMITH
   City Manager
   The City of North Myrtle Beach
   1015 Second Ave. South
   North Myrtle Beach,
   South Carolina 29582



For the United States:

By: ___________________      Date:___________________
   JOHN L. WODATCH, Chief
   L. IRENE BOWEN, Deputy Chief
   EVE L. HILL, Attorney
   DANIEL W. SUTHERLAND, Attorney
   Disability Rights Section
   Civil Rights Division
   U.S. Department of Justice
   P.O. Box 66118
   Washington, D.C. 20035-6118

A T T A C H M E N T A A T T A C H M E N T B A T T A C H M E N T C

EFFECTIVE COMMUNICATION WITH PEOPLE WITH DISABILITIES

Policy. It is the City's policy to take appropriate steps to ensure that communications with people with disabilities are as effective as communications with others.

The City will furnish, at the City's expense, appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, the City's programs, services and activities.

Primary Consideration. In determining what type of auxiliary aid or service is necessary, the City will give primary consideration to the request of the person with a disability. Primary consideration means that the City will honor the person's choice, unless it can be shown that another equally effective means of communication is available, or that the person's choice would result in a fundamental alteration in the service, program, or activity or result in undue financial or administrative burdens.

Auxiliary Aids and Services. For people with hearing impairments, "auxiliary aids and services" include qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for the deaf ("TDD's"), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

For people with vision impairments, "auxiliary aids and services" include qualified readers, audio recordings, Brailled materials, large print materials, taped texts or other effective methods of making visually delivered materials available to individuals with vision impairments.

Qualified Interpreter. In those proceedings where an interpreter is necessary to ensure effective communication, the City shall appoint a qualified interpreter. The term "qualified interpreter" means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

Procedures for Requesting an Auxiliary Aid or Service. For public meetings and hearings, the City should be notified at least 48 hours in advance of any request for auxiliary aids or services. For on-going services and programs, the City should be notified at least 24 hours in advance. For emergencies or urgent requests, the City should be notified immediately, and the City will make its best effort to fulfill the request. The person with a disability should contact the relevant City agency directly; however, if the person cannot discover who to contact, he or she may contact the City's ADA Coordinator.

ADA Coordinator. Linda Vereen is the City's ADA Coordinator. The ADA Coordinator is available to help members of the public as well as City employees who need assistance in interpreting the requirements of the ADA and this policy statement. Ms. Vereen can be reached at (803) 248-1760.

Grievance procedures. If a person with a disability is dissatisfied with the City's proposed auxiliary aid or service, the individual may file a grievance with the City's ADA Coordinator. The ADA Coordinator will attempt to resolve the grievance within one week.

POLICE DEPARTMENT POLICY ON EFFECTIVE COMMUNICATION IN SITUATIONS INVOLVING INDIVIDUALS WITH HEARING IMPAIRMENTS

It is the policy of the City's Police Department that it will furnish appropriate auxiliary aids and services whenever necessary to ensure effective communication with individuals with hearing impairments.

General Principles
  1. Auxiliary aids and services include qualified interpreters, written materials, notepads and other effective methods of making aurally delivered materials available to individuals with hearing impairments.
  2. The City's Police Department must provide an opportunity for individuals with hearing impairments to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individuals. "Primary consideration" means that the Police Department must honor the choice, unless it can show that another equally effective means of communication is available or that use of the means chosen would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial or administrative burdens.
  3. TDD's. To ensure effective communication for non-emergency telephone calls, the Police Department will maintain a "telecommunication device for the deaf" ("TDD") at all police stations, and will train administrative staff on the proper use of TDD equipment. Members of the Police Department may also communicate with people with hearing impairments through the state's "relay service." Through the relay service, a Police Department employee can speak to a system operator, who then transfers those communications to the person with a hearing impairment through a TDD. Emergency phone services, such as 9-1-1 systems, are outside the scope of this policy.
  4. Interpreters. A list of individuals who are qualified interpreters, or of the company the Police Department contracts with to provide qualified interpreters, shall be maintained by the Department. All police officers and other employees of the Department shall be instructed on the proper administrative procedures to follow in obtaining the services of an interpreter from the list.
  5. The term "qualified interpreter" means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary. Members of the Police Department are not considered qualified interpreters because they may have a conflict of interest as employees of the agency investigating the incident. Similarly, family members or friends of a person with a hearing impairment are not considered qualified interpreters because close personal relationships may interfere with effective communication. Department employees and family members or friends should only be used as interpreters in an emergency or in an innocuous situation, such as exchanging greetings with members of the public.
  6. ADA Coordinator. Sgt. Greg Richardson is the Police Department's ADA Coordinator. The ADA Coordinator is available to help members of the public as well as Department employees who need assistance in understanding the requirements of the ADA and this policy statement. Sgt. Richardson can be reached at (803) 248-1790.
  7. Grievance procedures. If a person with a disability is dissatisfied with the auxiliary aid or service proposed or used by the Department, the individual may file a grievance with the Police Department's ADA Coordinator. The ADA Coordinator will attempt to resolve the grievance within one week.
  8. These procedures shall apply whenever a person claims to have a hearing impairment. Accepting a claim of a hearing impairment at face value will allow the police officer to avoid the awkward situation of trying to determine which people have valid or frivolous claims.
  9. If an interpreter is used, all identifying information on the interpreter must be included in the report filed in the case. All written questions and responses between and among police officers and persons with hearing impairments must be treated as evidence and handled accordingly. A copy of the written questions and responses must be forwarded with the police report, and the originals must be placed into evidence.
Communicating with a Suspect with a Hearing Impairment Prior to an Arrest When a Police Officer has Probable Cause without Having to Interview the Suspect

If an individual without a hearing impairment would have been arrested on probable cause, then a suspect with a hearing impairment in the same situation does not need to be provided with a qualified interpreter.

However, a qualified interpreter may be required if an officer is unable to convey to the arrestee the nature of the criminal charges by communicating on a notepad or by using another means of communication. The arrestee should be transported to a holding cell at the City's Police Department, where the arresting officer can convey the information through the interpreter when the interpreter arrives.

Interviewing a Suspect with a Hearing Impairment When the Police Officer Needs to Interview the Suspect to Establish Probable Cause

If a police officer needs to interview a suspect with a hearing impairment to determine if there is probable cause to make an arrest, a qualified interpreter must be provided if written communication is not effective. If written notes are exchanged as an alternative to providing an interpreter, the officer must retain a copy of the notes with the police report. When the services of a qualified interpreter are required to provide effective communication, but the officer cannot wait until a qualified interpreter arrives because the officer has to respond to another more urgent call, the following procedures apply:

  1. If the investigation does not involve a serious offense, the officer must postpone the interview and possible arrest until the officer can return to the scene when a qualified interpreter is present. If this is not possible, the officer must document his or her investigation as completely as possible and file the appropriate report.
  2. If the investigation involves a serious offense, the officer, before leaving the scene, must contact the appropriate investigations division supervisor and advise the supervisor of the case. The supervisor will determine if a detective or other police officer will be called in to wait for a qualified interpreter. If not, the officer must document his or her investigation as completely as possible and file the appropriate report.
Interrogating an Arrestee with a Hearing Impairment

If an officer cannot effectively inform the arrestee of the Miranda warnings without the use of an interpreter, then the officer must secure the services of a qualified interpreter in order to communicate accurately the warnings to the arrestee prior to any interrogation.

An officer seeking to interrogate an arrestee with a hearing impairment must obtain the services of a qualified interpreter prior to any interrogation whenever an interpreter is needed for effective communication. If exigent circumstances do not permit a delay in the interrogation of the arrestee, if an interpreter cannot be located within a reasonable period of time (which should occur very infrequently), if written communication between the officer and arrestee was effective in communicating an understanding of the Miranda warnings, or if the arrestee specifically declines the opportunity to communicate through an interpreter, the officer may proceed with the interrogation by using a notepad. However, if written communication becomes ineffective, for example, because the factual pattern is complex, because the arrestee is having difficulty communicating without an interpreter, or because the arrestee chooses to discontinue the interrogation, the officer must discontinue the interrogation and wait until a qualified interpreter is present before continuing with the interrogation. In most instances a qualified interpreter will be available and the interrogation will not be delayed.

Communicating with a Suspect with a Hearing Impairment Prior to the Issuance of a Non-Criminal Citation

If an individual without a hearing impairment would be issued a non-criminal citation without being questioned by the investigating officer, then a suspect with a hearing impairment in the same situation does not need to be provided with a qualified interpreter.

If an officer has stopped a suspect for committing a non-criminal infraction and if the officer is unable to convey to the violator the nature of the non-criminal infraction by communicating on notepad or by using other means of communication, then the officer should use his or her discretion as to whether to call a qualified interpreter to the scene or whether to issue a warning rather than a citation.

Interviewing a Victim or Critical Witness with a Hearing Impairment

If an officer is able to communicate effectively by writing questions on a notepad and having the victim or witness with a hearing impairment write his or her responses, then the officer may proceed with the interview using a notepad. However, if an investigating officer is unable to communicate effectively with a victim or critical witness by using a notepad or some other means of communication other than a qualified interpreter, then the investigating officer must provide the victim or critical witness with a qualified interpreter. If the investigating officer cannot wait until a qualified interpreter arrives because the officer has to respond to another more urgent call, the following procedures apply:

  1. If the investigation does not involve a serious offense, then: (a) The officer can have a qualified interpreter dispatched to the victim's or critical witness's location and request the communications division to recontact the officer when the interpreter arrives. If a qualified interpreter is unable to respond or if the officer cannot return to the scene, the officer must document his or her investigation as completely as possible and file the appropriate report; or (b) The officer can ask the victim or critical witness to come voluntarily to the station when a qualified interpreter is available. At that time, the investigating officer can return to the station to complete the investigation. If a qualified interpreter is unable to respond or if the officer cannot return to the station, the officer must document his or her investigation as completely as possible and file the appropriate report.
  2. If the investigation does involve a serious offense and if the victim or witness with a hearing impairment is critical to establishing probable cause for an arrest or for completing the investigation, then the investigating officer, before leaving the scene, must contact the appropriate investigations division supervisor and advise the supervisor of the case. The supervisor will determine if a detective or police officer will be called in to wait for a qualified interpreter. If the supervisor determines that a detective or other police officer will not be responding, and if neither option (1)(a) nor (1)(b) above is available, then the officer may leave the victim(s) or witness(es) at the scene. The investigating officer must then document his or her investigation as completely as possible and file a report.

THE AMERICANS WITH DISABILITIES ACT WHAT YOU SHOULD KNOW

Under the Americans with Disabilities Act of 1990 ("ADA"), the City of North Myrtle Beach does not discriminate on the basis of disability in admission to, access to, or operations of its programs, services, or activities. Moreover, the City does not discriminate on the basis of disability in its hiring or employment practices.

Here are some specific ways the City is implementing the ADA:

* The City will operate our programs so that they are readily accessible to and usable by individuals with disabilities.

* When a person with a hearing or vision impairment needs an auxiliary aid to make communications effective, the City will provide the necessary aid and will give primary consideration to the person's choice of auxiliary aid.

* The City will provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.

Questions, concerns, or requests for additional information regarding the ADA may be forwarded to the City's ADA Compliance Coordinator:

Linda Vereen, (803) 248-1760

Individuals who need auxiliary aids for effective communication in programs and services are invited to make their needs and preferences known to the ADA Compliance Coordinator.

For further information, call the Department of Justice's ADA Information Line at 1-800-514-0301 (voice) or 1-800-514-0383 (TDD).

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Updated August 6, 2015

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