NOV 23 1993

CERTIFIED MAIL RETURN RECEIPT REQUESTED

The Honorable Dale Lynch

County Judge
Van Buren County Courthouse
Clinton, Arkansas 72031

Re: Van Buren County, Arkansas - Department of Justice

Number XXXX

Dear Judge Lynch:

This letter constitutes our Letter of Findings under title

II of the Americans with Disabilities Act (ADA) in the above-
referenced matter. Title II prohibits discrimination against
qualified individuals with disabilities on the basis of their
disabilities in the services, programs, or activities of a local
government, such as Van Buren County. Our office enforces title
II's requirements, as applied to the county's services and
programs, through investigation, negotiation, issuance of Letters
of Findings, and, if necessary, referral for possible litigation.

Summary of Facts

In a letter dated October 13, 1992, we advised you that we

had received a complaint alleging that the courtroom facilities
located in the Van Buren County Courthouse are inaccessible to
individuals with disabilities -- particularly those with mobility
impairments. We requested that you provide us specific
information to resolve the merits of the complaint by
November 13, 1992.

After repeated delays, Ralph J. Blagg, counsel for the

county, provided the requested information by a letter dated
June 7, 1993. Subsequently, we obtained additional information
during a telephone conversation between Louis M. Stewart of this
office and Mr. Ron Bennett, the county's ADA Coordinator, on
June 21, 1993. Based on our inquiry, we find as follows.
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The Van Buren County Courthouse is inaccessible to

individuals with mobility impairments. To enter the first floor
of the courthouse, an individual must climb a flight of stairs.
The courtroom facilities are located on the second floor of the
courthouse which also is reached by climbing a flight of
stairs.

With respect to the inaccessible courtroom facilities

located in the courthouse, we were advised by Mr. Blagg that:

The Van Buren County Law Library is available for use

as a courtroom when an individual with physical
disabilities desires to attend a proceeding. A sign
identifying the library as the 'Van Buren County
Auxiliary Courtroom' has been painted on the window in
5" gold letters .... Court proceedings are relocated
to this site less than one city block away anytime the
need arises.

According to information provided by Mr. Blagg and Mr. Bennett,

however, there is 'no written policy for relocating court
proceedings to the "auxiliary" courtroom, and such policy as
exists has never been published by the county or disseminated
to the public. Rather, we understand that information on the
availability of the Van Buren County Law Library as an
auxiliary courtroom is simply conveyed by the Court and lawyers for
parties who are mobility impaired.

In addition to the courtroom facilities, the offices of

the county judge, county clerk, and county treasurer are also
located on the first floor of the county courthouse. Thus, the services
and activities of these offices are also inaccessible.
Moreover, no information was forthcoming that would indicate that
consideration has been given to or policies developed for
providing alternative access to the services and benefits
provided by these offices to individuals with mobility
impairments.

Finally, with regard to the county's overall title II

compliance efforts, we note that even though Mr. Bennett was
appointed the ADA Coordinator approximately 1 « years ago,
that information was never disseminated to the public. Nor does it
appear that the county has ever conducted a self-evaluation of
its policies to determine whether they comport with the
requirements of title II as contained in the title II
regulation. In addition, the county has never issued a notification of its
obligation to comply with title II. Moreover, the county has
never adopted a grievance procedure for title II complaints or
developed a transition plan, even though it employs more than
fifty employees.
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Applicable Legal Standards
and Legal Conclusions of Compliance Status

Coverage by Title II

Van Buren County is a public entity. As such, it is

required to comply with title II of the ADA and the Department of
Justice's title II regulation. 42 U.S.C.​ 12131; 28 C.F.R. Part
35.

Program Access to Courtroom Facilities and Other Services Located

in the Courthouse

The county may not deny the benefits of or participation in

its courtroom facilities or other programs to individuals with
disabilities because the courthouse is inaccessible. Each of
Van Buren County's services, programs, or activities, when viewed
in its entirety, must be readily accessible to and usable by
individuals with disabilities. This standard, known as "program
accessibility," applies to all programs, services, and activities
offered by Van Buren County as of January 26, 1992, the effective
date of title II. See 28 C.F.R. 35.150(a) & (b).

The county does not have to take an action that it can

demonstrate would result in a fundamental alteration in the
nature of its program or activity or in undue financial and
administrative burdens. 28 C.F.R. 150(a)(3). However, a
specific determination to that effect must be made by the head of
the county government or his or her designee and must include a
written statement of the reasons for reaching the conclusion.
The determination that undue burdens would result must be based
on all resources available for use in a particular program or
activity. If an action would result in such an alteration or
such burdens, the county must take other alternative actions that
would not result in such an alteration or such burdens but would
nevertheless guarantee that individuals with disabilities receive
the benefits of its programs and activities.

The county may achieve program accessibility by a number of

methods and need not necessarily make each of its existing
facilities accessible. In many situations, providing access to
facilities through structural methods, such as alteration of
existing facilities and acquisition or construction of additional
facilities may be the most efficient method of providing program
accessibility. As alternatives to structural changes, however,
the county may achieve program accessibility by such
nonstructural methods as acquisition or redesign of equipment,
assignment of aides to beneficiaries, and provision of services
at alternative accessible sites.

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For example, if the courtroom facilities in the courthouse

are inaccessible as a result of physical barriers that prevent
access to qualified individuals with disabilities (e.g.,
visitors, witnesses, jurors, attorneys, parties to litigation,
etc.), the county could develop a written policy that provides
for the relocation to a site that is accessible, when an
individual with a mobility impairment desires to attend a
proceeding.

Although the county appears to have taken some steps in that

direction here by designating its Law Library as an auxiliary
courtroom facility, it has never notified the public of this fact
or published procedures so that individuals may request that
court proceedings be relocated. In addition, it appears that the
unpublished policy is limited to actual participants in a court
hearing. Title II, however, is applicable to other individuals
including visitors and potential jurors. In addition, the county
has not addressed the other services and activities located in
the courthouse to insure that procedures are implemented that
provide for access to them.

While we are mindful of Mr. Bennett's representation during

his conversation on June 21, 1993, that the county was unable to
make the structural changes necessary to comply with title II of
the ADA due to its limited budget, this statement alone is not
sufficient to demonstrate undue financial burdens. Moreover, the
county has provided no indication that it has considered other
less costly alternatives.

For these reasons, we determine that the county has failed

to provide program access to the programs and services located in
its courthouse and is in noncompliance with title II as
implemented by 28 C.F.R. 35.150(a) & (b).

Self-Evaluation

With respect to the completion of a self-evaluation,

28 C.F.R. 35.105(a) states that "(a) public entity shall ...
(by January 26, 1993) evaluate its current services, policies,
and practices, and the effects thereof, that do not or may not
meet the requirements of this part and, to the extent
modification of any such services, policies, and practices is
required, the public entity shall proceed to make the necessary
modifications." In performing the self-evaluation, the county
"... shall provide an opportunity to interested persons,
including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
self-evaluation process by submitting comments." 28 C.F.R.
​ 35.105(b)

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The county has failed to do a self-evaluation and,
therefore, is in noncompliance with title II as implemented by
28 C.F.R. 35.105.
Notification to the Public

The county must give information on title II's requirements

to applicants, participants, beneficiaries, and other interested
persons. The notice should explain title II's applicability to
the county's services, programs, or activities. The county shall
provide such information as the head of the county determines to
be necessary to apprise individuals of title II's prohibitions
against discrimination. See 28 C.F.R. 35.106.

The county has failed to provide the required notification

and, therefore, is in noncompliance with title II as implemented
by 28 C.F.R. 35.106.

Designation of Responsible Employee and Grievance Procedure

Because the county employs 50 or more persons, it is

required to designate at least one employee to coordinate its
efforts to comply with and fulfill its responsibilities under
title II, including the investigation of complaints. The county
should publish the name, office address, and telephone number of
the designated employee. In addition, the county must adopt and
publish grievance procedures providing for prompt and equitable
resolution of complaints alleging any action that would be
prohibited by title II. See 28 C.F.R. 107.

Although the county did appoint an ADA Coordinator, it has

never published the fact of this appointment so that interested
individuals might avail themselves of the services of the
coordinator with regard to the ADA. Moreover, the county has
failed to adopt grievance procedures and, therefore, is in
noncompliance with title II as implemented by 28 C.F.R. 35.107.

Transition Plan

Where structural modifications are required to achieve

program accessibility, a public entity with 50 or more employees
must have done a transition plan by July 26, 1992, that provides
for the removal of these barriers. Any structural modifications
must be completed as expeditiously as possible, but, in any
event, by July 26, 1995. See 35.150(d).

The county has not made the necessary determinations or

devised the transition plan required to make any or all of its
programs accessible. Therefore, it is in noncompliance with
title II as implemented by 28 C.F.R. 35.150(d).

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Conclusion

In view of the foregoing, we conclude that the county is not

in compliance with title II in the areas reviewed above and that
the informal attempts already made by the county have been
ineffective in correcting these violations.

Because we find the county in noncompliance, we must

"(i)nitiate negotiations with ... (the county) to secure
compliance by voluntary means." 28 C.F.R. 35.173(a)(2). To
remedy these violations, please submit to this office, within 10
days of your receipt of this letter, a plan of action addressing
each area identified. If we are unable to obtain voluntary
compliance, this matter may be referred for litigation.
28 C.F.R. 35.174.

If you have any questions concerning this letter, please

contact Louis M. Stewart at (202) 616-7779.

Sincerely,

Stewart B. Oneglia
Chief
Coordination and Review Section
Civil Rights Division

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