JUN 14 1993

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Ms. Dana Pulis

Assistant County Counselor
St. Louis County
41 South Central Avenue
Clayton, Missouri 63105

Re: Old Complaint Number X

New Complaint Number X

Dear Ms. Pulis:

The Coordination and Review Section of the Civil Rights

Division [CRS] has completed its investigation of the above-
referenced complaint filed against St. Louis County, Missouri
[County], under title II of the Americans with Disabilities Act
of 1990 [ADA], 42 U.S.C. §§ 12131-12134, and the Department of
Justice's implementing regulation, 28 C.F.R. pt. 35. Because we
have been unable to resolve this complaint informally, this is a
noncompliance Letter of Findings as required under 28 C.F.R.
§ 35.172. We will, however, continue our settlement efforts by
endeavoring to negotiate a voluntary compliance agreement as
required under 28 C.F.R. § 35.173.

The Coordination and Review Section is responsible for

investigation and resolution of administrative complaints
alleging violations of title II by certain components of State
and local governments, including courts. Title II protects
qualified individuals with disabilities from discrimination in
the programs, services, and activities of public entities. The
complainant, X alleges that the St. Louis
County court does not ensure effective communications for
individuals who are hard of hearing. Specifically, he alleges
that the County does not provide assistive listening systems
[ALS's] for individuals who request such assistance in order to
observe courtroom proceedings.

cc: Records CRS Chrono Friedlander Milton.complnts. X .1of

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Through letters dated October 19, 1992, and February 4,

1993, and a series of telephone conversations made on October 29,
October 30, and December 1, 1992, and March 8, 11, and 16, 1993,
we advised you of our receipt of the complaint and sought
information about the policies and procedures of the County
relating to providing ALS's for courthouse spectators. Based
upon our review of the information provided by the complainant
and the documents and information the County provided, we have
determined that the County is in violation of title II. The
basis for our determination is discussed below.

Under the Department of Justice's title II regulation, "no

qualified individual with a disability shall, on the basis of
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity."
28 C.F.R. § 35.130[a] [see also 42 U.S.C. 12132]. The title II
regulation further requires that public entities "shall take
appropriate steps to ensure that communications with applicants,
participants, and members of the public with disabilities are as
effective as communications with others." 28 C.F.R. § 35.160[a].
Moreover, a public entity "shall furnish 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, a service, program, or activity conducted by a
public entity" [28 C.F.R. § 35.160[b]] unless the public entity
can demonstrate that provision of auxiliary aids "would result in
a fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens." 28
C.F.R. § 33.164.

Before filing his complaint, Dr. X spoke with a

representative from the County Courthouse and was told that no
auxiliary aids were available for individuals who were hearing
impaired. At a later date, on March 17, 1993, Dr. X
again visited the County Courthouse to ask if auxiliary aids were
available to those who needed them. Again he was informed that
the Courthouse did not have any assistive listening devices. The
County claims that no request for auxiliary aids at the
Courthouse has been denied since the effective date of the ADA.
However, the evidence indicates that Dr. X made two
requests and that both requests were denied. In denying Dr.
X requests, the County did not refute or question his
need for an auxiliary aid.

The County has submitted a policy statement providing that

"any person with business before this court or interested in
employment with this court, regardless of disability, whether
physical or mental, shall be reasonably accommodated to insure
their participation in and/or benefit of all employment
opportunities, services and programs conducted by the court." To
that end, the County has written an outline of steps to be

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followed in securing a sign language interpreter for hearing

impaired individuals who have business before the Court or are
interested in employment opportunities. This policy, however,
does not make provisions for members of the public who do not
have specific business before the Court and who are not
interested in employment with the Court. Nor does it provide for
hearing impaired individuals who cannot understand sign language.

When the County was contacted by CRS staff to determine its

willingness to provide assistive listening devices in the County
Courthouse, the County stated that its policy was to "accommodate
individual situations on a case by case basis." The County
disagreed with the Department of Justice's interpretation of its
regulations, stating that existing courtroom facilities need not
"accommodate any and all spectators of judicial proceedings." In
fact, the County stated several times that, while it might be
willing to provide ALS's in certain circumstances, such as when
the hearing impaired relative of one of the parties to a
proceeding was a spectator to the proceeding, it would almost
certainly not provide an ALS for a spectator who had no other
connection to the proceeding.

As an instrumentality of the St. Louis County government,

the St. Louis County Court is a public entity as defined in
section 35.104 of the title II regulations. The court
proceedings are part of the "service, program, or activity"
offered by the public entity [see 28 C.F.R. § 35.130[a]].
Complainant X has a hearing impairment and needs
auxiliary aids for effective communication. He is a qualified
individual with a disability, as defined in section 35.104.

Section 35.160[a] requires effective communication with

"members of the public." The complainant is a member of the
public who wishes to benefit from the program provided by the
Court. As such, he is entitled to auxiliary aids necessary for
effective communication, unless the County can demonstrate that
provision of the aids would result in a fundamental alteration in
the nature of the program or undue financial and administrative
burdens [see 28 C.F.R. § 35.164].

The County has not demonstrated that the provision of

auxiliary aids would fundamentally alter the nature of the
program or activity. The County's stated reasons for maintaining
its policy regarding auxiliary aids, as provided in its March 16,
1993, letter to the undersigned, are that "[j]udicial proceedings
are not a means of governmental entities 'communicating with
members of the public' as contemplated by ADA," and "[w]e can
find no basis for any requirement that individuals with or
without disabilities be accommodated in any manner when their
participation in an activity, program or service of any public
entity is prohibited and/or the benefit to them is nonexistent as
is the case with spectators at Judicial proceedings in which they
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are not personally or directly involved." While the County does

cite expense as one reason for its reluctance to comply with the
Department of Justice's regulations, it has not demonstrated that
complying with the regulations would result in undue financial
and administrative burdens, and, of course, the burden of proving
that compliance would result in undue financial and
administrative burdens rests with the County. It is clear that
the County's failure to comply is based on a legal disagreement
about whether compliance is mandated by the ADA, rather than on
either the defense of fundamental alteration or that of undue
financial and administrative burdens.

The County has indicated that it hired a consultant to

determine, among other things, whether the ADA will require that
the County's "broadcast systems" be altered by July of 1995, the
statutory deadline for making structural changes to government
buildings. However, this three year period applies only to
structural changes, not to the provision of auxiliary aids.
Moreover, no structural changes are required in order to provide
portable assistive listening devices.

The County's stated policy of not providing assistive

listening devices to courtroom spectators, without regard to the
needs of the individual with a disability, violates the statutory
requirement that it provide an equal opportunity for qualified
individuals with disabilities to participate in and benefit from
its program or activity [see 28 C.F.R. § 35.130[a]] and its
obligation to provide effective communications [see 28 C.F.R.
§ 35.160]. In particular, the policy violates title II of the
ADA with regard to complainant X who requested and was
denied the needed auxiliary aid. In order to remedy this
violation, the County must change its policy and agree to ensure
effective communications, including provision of appropriate
auxiliary aids such as assistive listening devices, for
participants in and observers of courtroom proceedings.

The Department remains open to discussing these issues and

exploring any remedies that could lead to a satisfactory
resolution. In that regard, Naomi Milton, the attorney assigned
to the case, [202] 514-9807, will be in contact with you in the
near future to ascertain whether the County is interested in
entering into voluntary compliance negotiations. If the County
does not wish to negotiate, or if negotiations are unsuccessful,
we are required by 28 C.F.R. § 35.174 to refer this matter to the
litigating unit, the Public Access Section, for appropriate
action.

Of course, this Letter of Findings only addresses the

County's policy of not providing ALS's to spectators at the
County Courthouse as set forth in the County's letter of March
16, 1993, referenced above. Failure to discuss other policies
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and practices in this letter does not constitute a finding with

respect to those policies and practices.

Under the Freedom of Information Act, it may be necessary to

release this document and related records on request. In the
event that we receive such a request, we will seek to protect, to
the extent provided by law, personal information which, if
released, could constitute an unwarranted invasion of privacy.

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

cc: Dr. X

01-00044