U.S. Department of Justice Civil Rights Division Disability Rights Section P.O.

Box 66738 Washington, DC 20035-6738 November 19, 1996 James E. Leidlein City Manager 19617 Harper Avenue Harper Woods, Michigan 48225-2095 Re: Complaint Number XX Dear Mr. Leidlein: This letter constitutes the Department of Justice's Letter of Findings with respect to the complaint filed with our office by XX against the city of Harper Woods under title II of the Americans with Disabilities Act of 1990 (ADA). Specifically, Mr. XX complaint alleges that he was not provided with needed auxiliary aids or services during meetings regarding his land use application. FACTS Mr. XX submitted a land use application to the City of Harper Woods. At some point after submitting the application, Mr. XX became deaf. Due to time-consuming medical treatments, Mr. XX failed to meet the requirements of his agreement with the City regarding the land use, and the original land use agreement was revoked. (Mr. XX acknowledges that he does not believe this revocation was due to his disability.) Mr. XX took part in several meetings during the reapplication process, during which he was often represented by a partner, legal counsel, or family member, but without auxiliary aids or services, and his second application was ultimately denied. The Civil Rights Division's investigation of Mr. XX complaint reveals no evidence that Mr. XX ever requested the provision of any auxiliary aids or services during any of the Proceedings with the City. On the contrary, it appears that Mr. XX assured City representatives during meetings that he

could understand them without the use of auxiliary aids or services. 01-00476 -2 LEGAL STANDARDS 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. S 35.130(a). The regulation further requires that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. S 35.130(b)(7). 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. S 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. S 35.160(b)(1)) 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. S 35.164), and that, "in determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities." 28 C.F.R. S 35. 160(b)(2). Auxiliary aids and services are defined in section 35.104 as including notetakers, transcription services, written materials, assistive listening devices, or other effective methods of making aurally delivered materials available to individuals with hearing Impairments. ISSUES AND ANALYSIS

Issue: whether the City of Harper Woods discriminated against Mr. XX in violation of 28 C.F.R. S 35.130 (a) or (b)(7), or 35.160 (a), (b)(1) or (b)(2) by failing to provide him with auxiliary aids or services during his land use application meetings with the City. There is no evidence to suggest that Mr. XX ever requested any auxiliary aids or services or asserted during any meeting that he could not fully participate in the proceedings. On the contrary, Mr. XX apparently asserted that he could participate fully in the meetings without any auxiliary aids or services. The ADA does not require a public entity to provide auxiliary aids or other accommodations absent any notice that an accommodation is needed.

01-00477 -3-

CONCLUSION Based on the foregoing information, we have concluded that there is insufficient evidence to find that the City of Harper Woods violated the ADA or its implementing regulations with respect to Mr. XX application. We are, therefore, closing Mr. XX administrative complaint against the City of Harper Woods. Please note that, if Mr. XX is dissatisfied with our determination, he may file a private complaint in the United States District Court under title II of the ADA. We thank you for your cooperation during this investigation. Sincerely,

Naomi Milton Attorney Disability Rights Section Civil Rights Division

cc: XXX

01-00478