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Following an evidentiary hearing, the trial court found that the parents' combined monthly adjusted gross income exceeded the statutory guidelines and ordered the noncustodial parent to pay $4,250 a month in child support. The Court of Appeals, considering the issue a matter of first impression, vacated the child support order, holding that the amount was arbitrary. We reverse the Court of Appeals and reinstate the trial court's order establishing child support.
Rebekah McCarty and Kenneth Faried were friends while they were students at Morehead State University. On March 12, 2010, McCarty gave birth to their daughter, Kyra. Following the birth, McCarty dropped out of college to care for Kyra and returned to live with her parents in Bath County. Faried graduated and was drafted by the National Basketball Association (NBA)'s Denver Nuggets in June 2011. The parties never married and never cohabitated.
Because Faried was drafted during a lockout, he did not begin drawing his NBA salary until December 2011. In the interim, he took out a loan of between $100,000 and $300,000 for living expenses and began voluntarily paying $500 a month to support Kyra. Sometime later, McCarty asked for an increase, and Faried began paying $1,000 a month.
On September 27, 2012, McCarty filed a motion for child support in Bath Circuit Court and requested $7,500 a month from Faried. In a subsequent temporary order, the trial court ordered Faried to pay $2,000 a month in child support and to provide for Kyra's health insurance and daycare costs. The court also stated in the order that if it ultimately awarded a different amount of child support, that award would be retroactive to the date of McCarty's motion for child support.
As for her monthly expenses, McCarty testified that she pays $239 to her grandmother for the use of a 2007 Chevy Equinox, $400 to $500 to fill the car with gas, $58 for car insurance, $200 to $300 for food, $150 for cell phone service, and $200 for personal expenses. She also stated that she is covered under her parents' health insurance policy and that Kyra's health insurance and out-of-pocket medical expenses are covered by Faried. Faried also pays $75 a week directly to Kyra's daycare facility.
McCarty requested court-ordered child support because her minimal income could not support Kyra's needs and because she hoped to better Kyra's quality of life. Specifically, McCarty wanted to move out of her parents' house, but she could not afford to do so with her current amount of income. McCarty's interest in moving was driven by wanting Kyra to have her own bedroom, a backyard, and internet access—in part so that Kyra could video-conference with Faried in Denver. She testified that she had spoken to a carpenter who was building a house in neighboring Rowan County that would rent for about $900 a month (excluding utility costs) and that he agreed to hold the house for her. Furthermore, McCarty introduced a summary and supporting documents detailing five other houses for sale in the Morehead area.
McCarty estimated that, without the support of her parents, her monthly food costs would be $300 to $500. McCarty testified that if she had more money she would like to spend approximately $100 a month on clothes for Kyra. However, she also stated that Faried had twice sent Kyra two boxes of clothing that he had received because of his endorsement contract and that she had no more room in her parents' house for clothes for Kyra. Finally, McCarty also requested child support because she wanted Kyra to be able to enjoy cultural activities—such as going to the zoo, museums and on vacations 2 —and perhaps enroll in gymnastics classes or other extracurricular activities.
Faried testified and submitted exhibits detailing his income and expenses. As a professional basketball player, Faried's NBA salary is $1,434,665; 3 plus he also earns $197,240 from an endorsement contract. However, Faried also testified that his net earnings in 2012 were substantially reduced by several “business expenses,” including: NBA Escrow contributions of $132,000, agent fees of $43,000, financial management fees of $25,000, assistant's salary of $24,000, NBA Player Association fees of $10,000, NBA fines of $12,000,4 cell phone service of $4,440, and personal trainer costs of $2,784. Faried's net income is further reduced by substantial income taxes, retirement contributions, and insurance payments.
As for personal expenses, Faried rents a three-bedroom apartment in Denver for $4,100 for himself and his brother and pays $4,517 per semester for his brother to attend college. He also financially supports his separated parents, paying: $2,300 per month for his mother to rent a four-bedroom house in New Jersey; $1,300 per month for his father to rent a studio apartment in Denver; utility costs for both households; and $1,000 monthly allowance and cell phone service for each.
Faried also testified that Kyra primarily lives with McCarty in Kentucky but that Kyra lives with him in Denver for several months a year. When she stays with him, he pays for her transportation and together they have gone bowling and to the movies. Kyra also enjoys the use of an iPad in Denver, and Faried took her to Disney World. Faried stated that he had no objection to paying for Kyra's medical expenses and daycare and that he would pay for preschool and gymnastics classes when Kyra is of age. Faried testified that he believes $2,000 a month in child support plus $500 a month for an education fund for Kyra is appropriate.
Finally, Melissa DeArk, a Certified Public Accountant, testified as an expert witness for Faried. Ms. DeArk reviewed Faried's financial statements and tax returns and calculated his net income, i.e. the money available for discretionary spending, to be $638,183 per year or $53,182 per month.5 Ms. DeArk arrived at this figure by subtracting Faried's “business expenses” totaling $253,224, his retirement contributions of $38,879, and his tax liability of $701,919 from his total income of $ 1,632,205. Ms. DeArk also researched census data and testified that the average Bath County resident pays $842 for a home mortgage, utility costs, and property taxes while the average Rowan County resident pays $946.
The trial court further ordered Faried to maintain Kyra under his health insurance coverage and to “arrange” for McCarty to be counseled in age appropriate nutritional and exercise options for Kyra as well as financial counseling. The order also made the monthly amount of $4,250 retroactive to October 1, 2012 and calculated back child support to be $24,100.
Faried moved to alter, amend, or vacate the order, and the trial court entered an amended order on January 10, 2014. The court ordered the same amount in child support—$4,250—and maintained that Kyra's reasonable needs were nearly identical to its original order.6 However, the court vacated the requirement for Faried to set aside $500 per month for future educational needs and alternatively ordered the parties to divide all educational expenses in accordance with their percentage of income: 1% to McCarty and 99% to Faried. Furthermore, the court vacated Faried's duty to provide nutritional, exercise, and financial counseling for McCarty but ordered McCarty to attend such counseling on her own. Finally, in response to Faried's argument that a portion of child support will be used to support McCarty herself, Malachi, and Malachi's father, the court reasoned that Kyra's needs “are what they are, regardless of the number of individuals in the household” or who else might receive a benefit.
We review the establishment, modification, and enforcement of child support obligations for abuse of discretion. Plattner v. Plattner, 228 S.W.3d 577; 579 (Ky. App. 2007). The test for abuse of discretion is whether the trial court's decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001) (citing Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). “[And] generally, as long as the trial court gives due consideration to the parties' financial circumstances and the child's needs, and either conforms to the statutory prescriptions or adequately justifies deviating therefrom, this Court will not disturb its rulings.” Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000) (citing Bradley v. Bradley, 473 S.W.2d 117 (Ky. 1971)).
A trial court's first step when establishing child support is to attempt to comply with Kentucky's statutory guidelines as codified in Kentucky Revised Statute (KRS) 403.212. In a typical case, a court will calculate the parents' combined monthly adjusted gross income and then determine the appropriate child support obligation amount from the guidelines table. KRS 403.212(2)-(7). However, because the table ends at $15,000 in combined monthly income, KRS 403.212(5) provides: “The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guideline table.” Because we have not had occasion to interpret the setting of child support above the guidelines, we turn to representative cases from the Court of Appeals: Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001) and Bell v. Cartwright, 277 S.W.3d 631 (Ky. App. 2009). While we are not bound by their holdings, they are a helpful staring point.
In Downing v. Downing, the Court of Appeals addressed how a trial court should reasonably adjust child support when parental income exceeded the guidelines. 45 S.W.3d at 454. The Court rejected the “share the wealth” model where child support is determined by mathematically extrapolating over and above the maximum guidelines without entering specific findings as to the needs of the children. Id. at 455 (citations omitted). The Court reasoned that a strict reliance on a mathematical extrapolation from the guidelines could result in unreasonable increases in child support, which would only serve to provide extravagance and not reflect the child's actual needs. Id. at 456.
Instead, the Court found that, “while to some degree children have a right to share in each parent's standard of living, child support must be set in an amount which is reasonably and rationally related to the realistic needs of the children.” Id. The Court referred to this analysis as the “Three Pony Rule,” i.e. no child, no matter how wealthy his or her parents, needs more than three ponies. Id. (citing Matter of Marriage of Patterson, 22 Kan.App.2d 522, 920 P.2d 450, 455 (1996)). Therefore, the Court concluded that “any decision to set child support above the guidelines must be based primarily on the child's needs, as set out in specific supporting findings.” Id. To further aid courts in determining the child's needs, the Court set forth non-exhaustive factors to be considered, including: the standard of living which the children enjoyed during and after the marriage; the parents' financial ability to meet that lifestyle; the parents' financial circumstances, station in life, age, and physical condition. Id. at 456–57. Applying that standard, the Downing Court concluded that the trial court's increase of child support was arbitrary because the award was based “almost entirely” on mathematical extrapolations from the guidelines without any other supporting findings or evidence in the record. Id. at 456.
In Bell v. Cartwright, the Court of Appeals reviewed another case in which a trial court failed to support its award of increased child support. 277 S.W.3d at 631–32. There, the Court vacated the order increasing support because it did not contain specific supporting findings regarding the child's reasonable needs. Id. at 633. In fact, the Court noted that the order “explicitly acknowledged that there was no evidence offered regarding the cost of private school, sports camps, or private daycare,” and the Court found that the mother's request for money to purchase a new home was “speculative.” Id.
Because the Court of Appeals imposed an overly burdensome standard, we reverse and reinstate the trial court's order.
In regard to the child support award as a whole, the trial court did not abuse its discretion because it set out specific supportive findings and the award was reasonable in light of those findings and the record. We hold that a trial court's decision, when setting child support over and above the guidelines, must be based on the best interest of the child. When making that determination, a trial court may use its judicial discretion with regard to weighing factors such as: the needs of the child, the financial circumstances of the parents, and the reasonable lifestyle the child may have been accustomed to before or after the parents separated.7 On review, an order setting child support above the guidelines will be affirmed so long as the trial court sets out specific supportive findings and the award, as a whole, is reasonable in light of those findings and the record.
With the preceding in mind, we hold that the trial court herein did not abuse its discretion when setting child support for Kyra. Her parents' combined monthly income far exceeds the guidelines; therefore, it is within the trial court's discretion to set support. The trial court held a half-day evidentiary hearing, at which both parents testified extensively about Kyra's current and projected needs and lifestyle as well their own financial circumstances and lifestyle expectations. That testimony included what McCarty and Faried both believed were Kyra's reasonable needs, concluding between $2,”575 and $5,000 was appropriate. Furthermore, McCarty testified that she shares a bedroom with Kyra in her parents' house because she cannot afford to move and that her monthly income of $1,050 is not sufficient to cover her necessary expenses, much less allow for discretionary spending on Kyra. Faried testified that he could afford to fly Kyra to his three-bedroom apartment in Denver, provide her with an iPad, and take her to Disney World.
The trial court heard this testimony and much more and ordered Faried, as the non-custodial parent to pay $4,250 a month in child support. In its original order, the trial court set forth specific supportive findings for the award, including a categorical list of Kyra's needs, a detailed contrast of Kyra's lifestyles with each parent, and an exhaustive compilation of each parent's income and expenses. Furthermore, the court ordered amount was within the range set forth by the parties—between $2,575 and $5,000. The court was entitled in its discretion to find McCarty's opinion of Kyra's needs to be more credible than Faried's opinion, or, as was more likely the case, the court found a combination of the two was appropriate. Moreover, in its amended order, the court considered each of Faried's objections and vacated several portions of its original order where it was persuaded by Faried's positions.
The Court of Appeals undertook a detailed analysis of the testimony offered at the hearing and rejected the trial court's determination of Kyra's reasonable needs. While the Court merely remanded the child support order, the Court improperly substituted its understanding of Kyra's needs for the trial court's supported finding. Instead, the proper role of a reviewing court is to judge whether the trial court abused its discretion by ordering a clearly unreasonable amount of child support or failing to support its award with specific findings. We detect no such error herein. As stated above, the trial court set out specific and detailed findings in support of its award of $4,250.
As such, we have no trouble concluding that child support in the amount of $4,250 is reasonable and in Kyra's best interest, taking into account her needs, her parents' substantial combined income, and the disparate lifestyle between the two households.
Additionally, we hold that McCarty's requests for child support for housing and extracurricular activities were not speculative. First, the Court of Appeals relied on Bell for its holding that McCarty had failed to support her requests of housing and extracurricular activity support. Setting aside that Bell is merely persuasive on this Court, the Court of Appeals's interpretation of Bell was misplaced. The Bell Court deemed the petitioner's request for increased child support to purchase a new home was speculative because “she failed to inquire into the costs of homes” or supplement the record with supporting documents. 277 S.W.3d at 633. Herein, McCarty testified that she had personally inquired into renting a newly constructed house in Morehead for $900 a month and that the homebuilder had assured her that he would hold the house for her. Furthermore, McCarty introduced documentation regarding five houses for sale in the area, which included the listed price and monthly payment projections for each. We cannot say that this proof is speculative or out of line with Bell 's minimal requirements.
Second, while we agree Downing and Bell are helpful in some respects, we are not bound by their holdings and find their reasoning is distinguishable. Both cases concern modification of existing child support awards and thus require “a showing of a material change in circumstances that is substantial and continuing.” KRS 403.213(1). An initial establishment of child support requires no such showing. Therefore, McCarty was not required to show that every dollar requested in child support was destined to cover a specific expense. It is the petitioner's duty to make a request for child support that is rationally related to the best interest of her child, and it is the trial court's duty, in turn, to consider the request and any supporting proof at trial and to award a reasonable amount of child support. McCarty requested child support for both housing and extracurricular activities in her list of Kyra's needs; she elaborated and specified those needs at trial; and the trial court, finding those requests to be reasonable, allotted child support in an amount it found to be sufficient.
Third, the Court of Appeals has cast petitioners similarly situated to McCarty between a rock and a hard place. McCarty testified that her primary desire was to move Kyra out of the bedroom they shared in her parents' house but that she could not afford to do so with her current income. The Court of Appeals concluded that, while moving was not unreasonable, McCarty had to purchase or begin renting a new home before child support could be allocated for that need. The flaw in this construction is obvious: without the means to support the move, the move will not occur. In fact, without additional monthly income McCarty would never qualify to purchase a home, and to expect her to lease a home without the income to pay the rent would be foolhardy and irresponsible. Similarly, without the funds to enroll Kyra in extracurricular activities, those opportunities will not be practically available. It is for the trial court to determine whether these requests are reasonably calculated to support the child's needs, regardless of whether the petitioner provides an invoice for the expense.
Finally, as to the retroactivity of the trial court's order, we find no error. Faried argues that making the order retroactive was an abuse of discretion in that McCarty had not incurred additional expenses for Kyra after the temporary support order was set and therefore incurred no expenses for which she should be reimbursed by an arrearage judgment. We find no merit to this argument for two reasons. First, it is undisputed that the effective date of any increase in child support is within the sound discretion of the trial court. Giacalone v. Giacalone, 876 S.W.2d 616, 620 (Ky.App.1994) (citing Ullman v. Ullman, 302 S.W.2d 849, 851 (Ky. 1957)). Here, the court forewarned through its temporary order that any increase in child support would be made retroactive to the date of McCarty's motion for child support (a common practice), and the court did just that in its final child support order.
Second, the order establishing child support was not meant to reimburse specific expenses incurred after the trial court entered the temporary order. Instead, the child support order represented McCarty's culmination of proof and the trial court's judgment as to what amount is reasonable to support Kyra. While that figure was determined months after McCarty's motion, the trial court ordered that Kyra was entitled to that amount of support from Faried during the interim and going forward. In other words, Kyra's reasonable needs did not manifest the day the final child support order was entered; those needs existed at least as of the date McCarty made a motion for support. Thus, the trial court ordered that the child support award be applied retroactively to the date of the motion. Absent a significant change in circumstances, that order was not arbitrary, unreasonable, erroneous, or an abuse of discretion.
For the reasons stated above, we reverse the Court of Appeals and reinstate the Bath Circuit Court's orders.
1. Malachi's father also played basketball at Morehead and hopes to play professional basketball in Europe.
2. McCarty testified that she was able to take Kyra to Florida once, but only because she was able to stay with Malachi's father's family for free.
3. Faried signed a four-year contract in 2011, and he testified that he does not expect his NBA salary to substantially change over the next four years.
4. Faried testified that the NBA levied fines against him for committing technical fouls in games throughout the season.
5. We note that net income is not the same as “gross income” as defined under Kentucky Revised Statute (KRS) 403.212(2)(6). Nevertheless, determining Faried's exact gross income is not necessary for the purposes of this appeal.
7. This is not an exclusive list.
Minton, C.J., Hughes, Keller, Venters and Wright, JJ., concur. Noble, J., concurs in result only. Cunningham, J., not sitting.

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O'DONNELL v. GREAT LAKES DREDGE & DOCK CO.
[318 U.S. 36, 37] Mr. Walter F. Dodd, of Chicago, Ill. for petitioner.
The question for decision is whether a seaman injured on shore while in the service of his vessel is entitled to recover for his injuries in a suit brought against his em- [318 U.S. 36, 38] ployer under the Jones Act. 33 Merchant Marine Act of 1920, 41 Stat. 1007, 46 U.S.C. 688, 46 U.S.C.A. 688.
Petitioner was a deckhand on respondent's vessel 'Michigan', engaged in transporting sand from Indiana to Illinois over the navigable waters of Lake Michigan. As her cargo was being discharged through a conduit passing from the hatch and connected at its outer end to a land pipe by means of a gasket, petitioner was ordered by the master to go ashore to assist in repair of the gasket connection. While he was so engaged the alleged negligence of a fellow employee caused a heavy counterweight, used to support the gasket, to fall on petitioner and cause the injuries of which he complains. The district court dismissed the cause of action under the Jones Act and granted an award for wages. The Court of Appeals for the Seventh Circuit modified the judgment, 127 F.2d 901, by allowing an additional award for maintenance and cure, but held that no recovery could be had under the Jones Act for injury to a seaman not occurring on navigable waters. We granted certiorari, 317 U.S. 611 , 63 S.Ct. 62, 87 L. Ed. --, the question being one of importance in the application of the Jones Act.
The Act thus made applicable to seamen injured in the course of their employment the provisions of the Federal Employers' Liability Act, 45 U.S. C. 51-60, 45 U.S.C.A. 51-60, which gives to railroad employees a right of recovery for injuries resulting from the negligence of their employer, its agents [318 U.S. 36, 39] or employees. Panama R.R. Co. v. Johnson, 264 U.S. 375 , 44 S.Ct. 391; The Arizona v. Anelich, 298 U.S. 110 , 56 S.Ct. 707. The term 'seamen' has been interpreted to embrace those employed on a vessel in rendering the services customarily performed by seamen, including stevedores while temporarily engaged in stowing cargo on the vessel. International Stevedore Co. v. Haverty, 272 U.S. 50 , 47 S.Ct. 19; Buzynski v. Luckenbach S.S. Co., 277 U.S. 226 , 48 S.Ct. 440. There is nothing in the legislative history of the Jones Act to indicate that its words 'in the course of his employment' do not mean what they say or that they were intended to be restricted to injuries occurring on navigable waters. On the contrary it seems plain that in taking over the principles of recovery already established for railroad employees and extending them in the new admiralty setting (see The Arizona v. Anelich, supra) to any seaman injured 'in the course of his employment', Congress, in the absence of any indication of a different purpose, must be taken to have intended to make them applicable so far as the words and the Constitution permit, and to have given to them the full support of all the constitutional power it possessed. Hence the Act allows the recovery sought unless the Constitution forbids it.
The constitutional authority of Congress to provide such a remedy for seamen derives from its authority to regulate commerce, Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.) 223 U.S. 1 , 32 S.Ct. 169, 38 L.R.A.,N.S., 44, and its power to make laws which shall be necessary and proper to carry into execution powers vested by the Constitution in the government or any department of it, Article I, 8, cl. 18, including the judicial power which, by Article III, 2, extends 'to all Cases of admiralty and maritime Jurisdiction'. By 9 of the Judiciary Act of 1789, 1 Stat. 76, 28 U.S.C. 371 (Third), 28 U.S.C.A. 371 (Third ), Congress conferred on the district courts 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common [318 U.S. 36, 40] law remedy, where the common law is competent to give it ....' By the grant of admiralty and maritime jurisdiction in the Judiciary Article, and 9 of the Judiciary Act, the national government took over the traditional body of rules, precepts and practices known to lawyers and legislators as the maritime law, so far as the courts invested with admiralty jurisdiction should accept and apply them. Waring v. Clarke, 5 How. 441, 459; The Lottawanna, 21 Wall. 558, 576; In re Garnett, 141 U.S. 1, 14 , 11 S.Ct. 840, 843; Detroit Trust Co. v. Barlum S.S. Co., 293 U.S. 21, 43 , 55 S.Ct. 31, 38, and cases cited.
It is true that the jurisdiction in admiralty in cases of tort or collision is in general limited to events occurring on navigable waters, Waring v. Clarke, supra; cf. The Blackheath, 195 U.S. 361 , 25 S.Ct. 46, and that the maritime law gave to seamen no right to recover compensatory damages for injuries suffered from negligence. The Osceola, 189 U.S. 158, 172 , 175 S., 23 S.Ct. 483, 485, 487; Pacific S.S. Co. v. Peterson, 278 U.S. 130, 134 , 49 S.Ct. 75, 76. It allowed such recovery if the injury resulted from unseaworthiness of the vessel or her tackle, The Osceola, supra, 189 U.S. 173, 175 , 23 S.Ct. 486, 487, and permitted recovery of maintenance and cure, ordinarily measured by wages and the cost of reasonable medical care, if the seaman was injured or disabled in the course of his employment. The Osceola, supra, 189 U.S. 172 -175, 23 S.Ct. 485, 487; The Iroquois, 194 U.S. 240 , 24 S.Ct. 640; Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 , 528 S., 58 S.Ct. 651, 652, 653.
But it cannot be supposed that the framers of the Constitution contemplated that the maritime law should forever remain unaltered by legislation, The Lottawanna, supra, 21 Wall. 577, or that Congress could never change the status under the maritime law of seamen, who are peculiarly the wards of admiralty, or was powerless to enlarge or modify any remedy afforded to them within the scope of the admiralty jurisdiction. There is nothing in that grant of jurisdiction-which sanctioned our adoption of the system of maritime law-to preclude Congress from modifying [318 U.S. 36, 41] or supplementing the rules of that law as experience or changing conditions may require. This is so at least with respect to those matters which traditionally have been within the cognizance of admiralty courts either because they are events occurring on navigable waters, see Waring v. Clarke, supra, or because they are the subject matter of maritime contracts or relate to maritime services. New England Mutual Marine Insurance Company v. Dunham, 11 Wall. 1, 25.
From the beginning this Court has sustained legislative changes of the maritime law within those limits. See Waring v. Clarke, supra; The Lottawanna, supra; Butler v. Boston & S. Steamship Co., 130 U.S. 527, 555 , 9 S.Ct. 612, 618. Congress has both limited the liability of vessels for their torts even though not engaged in interstate commerce, In re Garnett, supra; Hartford Accident Co. v. Southern Pacific Co., 273 U.S. 207, 214 , 47 S.Ct. 357, 358, and extended the limitation to claims for damages by vessel to a land structure. Compare The Plymouth, 3 Wall. 20 and Cleveland Terminal & V.R.R. v. Steamship Co., 208 U.S. 316 , 28 S.Ct. 414, 13 Ann.Cas. 1215, with Richardson v. Harmon, 222 U.S. 96, 101 , 106 S., 32 S.Ct. 27, 28, 30. It has altered and extended the maritime law of liens on vessels plying navigable waters. Detroit Trust Co. v. Barlum S.S. Co., supra, and cases cited. And the Jones Act itself has given seamen a right of recovery for injury or death, not previously recognized by the maritime law, which has been uniformly sustained by this Court in cases where the injury occurred on navigable waters. Panama R.R. Co. v. Johnson, supra, 264 U.S. 385 -387, 44 S.Ct. 393, 394; The Arizona v. Anelich, supra; Lindgren v. United States, 281 U.S. 38 , 50 S.Ct. 207.
Some of the grounds for recovery of maintenance and cure would, in modern terminology, be classified as torts. But the seaman's right was firmly established in the maritime law long before recognition of the distinction between tort and contract. In its origin maintenance and cure must be taken as an incident to the status of the seaman in the employment of his ship. See Cortes v. Baltimore Insular Line, 287 U.S. 367, 372 , 53 S. Ct. 173, 174. That status has from the beginning been peculiarly within the province of the maritime law, see Calmar Steamship Corp. v. Taylor, supra, and upon principles consistently followed by this Court it is subject to the power of Congress to modify the conditions and extent of the remedy afforded by the maritime law to seamen injured while engaged in a maritime service.
The right of recovery in the Jones Act is given to the seaman as such, and, as in the case of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the [318 U.S. 36, 43] vessel plying in navigable waters. See Waring v. Clarke, supra; New England Mut. Marine Insurance Co. v. Dunham, supra.
It follows that the Jones Act, in extending a right of recovery to the seaman injured while in the service of his vessel by negligence, has done no more than supplement the remedy of maintenance and cure for injuries suffered by the seaman, whether on land or sea, by giving to him the indemnity which the maritime law afforded to a seaman injured in consequence of the unseaworthiness of the vessel or its tackle. Pacific S. S. Co. v. Peterson, supra. Since the subject matter, the seaman's right to compensation for injuries received in the course of his employment, is one traditionally cognizable in admiralty, the Jones Act, by enlarging the remedy, did not go beyond modification of substantive rules of the maritime law well within the scope of the admiralty jurisdiction whether the vessel, plying navigable waters, be engaged in interstate commerce or not. Cf. Jackson v. The Magnolia, 20 How. 296; The Belfast, 7 Wall. 624, 640 et seq.; The Garnett, supra.
The fact that Congress has provided that suits under the Jones Act may be tried by jury, on the law rather than on the admiralty side of the federal courts, does not militate against the conclusion we have reached. This is but a part of the general power of Congress to prescribe the forum in which federally-created causes of action are to be tried, Claflin v. Houseman, 93 U.S. 130 , 136-142,-a concomitant of the power many times sustained by this Court to direct that causes of action arising under the Jones Act may be tried in the state courts. E.g., Engel v. Davenport, 271 U.S. 33, 37 , 38 S., 46 S.Ct. 410, 412; Panama R. R. v. Vasquez, 271 U.S. 557 , 46 S.Ct. 596; cf. Garrett v. Moore-McCormick Co., 317 U.S. 239 , 63 S.Ct. 246, 87 L.Ed. --.
We have no occasion to consider or decide here the question whether a longshoreman, temporarily employed in storing cargo on a vessel, if entitled to recover under the [318 U.S. 36, 44] Jones Act for injuries sustained while working on the vessel (compare International Stevedore Co. v. Haverty, supra, with Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 137 , 50 S.Ct. 303, 305) could recover for an injury received on shore in the circumstances of this case. Compare State Industrial Commission v. Nordenholt Co., 259 U.S. 263 , 42 S. Ct. 473, 25 A.L.R. 1013, with South Chicago Co. v. Bassett, 309 U.S. 251, 256 , 60 S.Ct. 544, 547.

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The United States Department of Justice (Department) initiated this matter as a compliance review of Pike County, Kentucky (the County) 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. Because the County receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.
The Department reviewed the County's policies and procedures regarding emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.
Finally, the Department reviewed the County's policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.
1.	The ADA applies to the County because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).
2.	The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the County with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. 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 pursuant to Subpart F.
3.	The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the County's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the County provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
4.	The parties to this Agreement are the United States of America and Pike County, Kentucky.
5.	In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.
6.	In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."
7.	Within two months of the effective date of this Agreement, the County will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the County; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings. It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement. Copies will also be provided to any person upon request.
8.	Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the County will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the County's accessible programs, services, and activities.
9.	Within three months of the effective date of this Agreement, the County will appoint or hire one or more ADA Coordinator(s). The ADA Coordinator(s) will coordinate the County's effort to comply with and carry out its responsibilities under the ADA, including any investigation of complaint communicated to it alleging its noncompliance with title II or alleging any actions that would be prohibited under title II. The City/County will make available to all interested individuals the name(s), office address(es), and telephone number(s) of the ADA Coordinator(s).
10.	Within three months of the effective date of this Agreement, the County will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings. It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement. Copies will also be provided to any person upon request.
11.	Within three months of the effective date of this Agreement, the County will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).
12.	The County will take steps to ensure that all appropriate employees are trained and practiced in using the Kentucky Relay Service to make and receive calls.
13.	Within three months of the effective date of this Agreement, the County will adapt for its own use and implement the Pike County Sheriff's Office Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (Attachment C) and distribute to all sheriff's department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing (Attachment D).
14.	Within three months of the effective date of this Agreement, the County will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its sheriff's department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).
15.	Within three months of the effective date of this Agreement, the County will ensure that each sheriff station or substation and each detention facility is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls. Where inmate telephone calls are time-limited, the County will adopt policies permitting inmates who use TTY's a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.
will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the City's business. If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, the County may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.
will maintain any employee's medical records separate from personnel files and keep them confidential.
will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the County's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
17.	Some of the County polling places may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, would be subject to the obligation to provide program access or to remove barriers to accessibility under the ADA. This Agreement does not limit future enforcement action against the owners or operators of these polling places by any person or entity, including the Department.
18.	Before designating any site as a new polling place, the County will survey the site using the survey instrument at Exhibit F to determine whether the site contains barriers to access by people with disabilities in the parking, exterior route to the entrance, entrance, interior route to the voting area, or voting area. The County will not designate any such site as a polling place until all such barriers have been removed.
19.	The Department surveyed certain of County's polling places. Barriers to access at such polling places owned by the County and the dates by which the County will remove barriers are noted in Attachments I, J, and K.
20.	Barriers to access at the polling places not owned by the County which were surveyed by the Department are noted in Attachment E. Within one month of the effective date of this Agreement, the County will request in writing that each of the owners and operators of the polling places listed in Attachment E remove the noted barriers to access for persons with disabilities within one year of the effective date of this Agreement. The County will provide a copy of the Department's ADA Checklist for Polling Places (www.ada.gov/votingck.htm) with the written request. The County will simultaneously send a courtesy copy of the request to the Department.
21.	Within 14 months of the effective date of this Agreement, the County will survey all facilities listed in Attachment E to determine whether the barriers noted have been removed. If not, for each polling place that still contains inaccessible parking, exterior route to the entrance, entrance, interior route to the voting area, or voting area, the County will identify within 18 months of the effective date of this Agreement an alternate location where these elements are accessible. That identification will utilize the survey instrument that appears as Attachment F to this Agreement. The County will then take immediate steps to change its polling place to the new location. Under this provision of the Agreement, the County will ensure that barriers at each polling place identified in Attachment E are either removed or a substitute accessible polling place is in operation before the next election occurring more than 20 months after the effective date of this Agreement.
22.	Within 6 months of the effective date of this Agreement, using the survey instrument at Attachment F, the County will survey all polling places not surveyed by the Department to identify barriers to access by people with disabilities in the parking, exterior route to the entrance, entrance, interior route to the voting area, and voting area. Within 12 months of the effective date of this Agreement, for each such polling place, the County will then either (1) ensure that all barriers to access by people with disabilities have been removed or (2) identify an alternate polling place with no barriers to access by people with disabilities. That identification of accessible polling places will utilize the survey instrument that appears as Attachment F to this Agreement. The County will then take immediate steps to change each new inaccessible polling place to a new accessible location. Under this provision of the Agreement, the County will ensure that barriers at each polling place the Department did not survey are either removed or a substitute accessible polling place is in operation before the next election occurring more than 20 months after the effective date of this Agreement.
23.	Until all polling places in each precinct or voting district have accessible parking, exterior routes, entrances, interior routes to the voting area, and voting area, prior to each election, the County will identify and widely publicize to the public and to persons with disabilities and organizations serving them the most accessible polling place(s) for each precinct or voting district.
24.	Within three months of the effective date of this Agreement, the County will provide opportunities for same-day balloting for voters with disabilities whose assigned polling place does not have accessible parking, exterior route to entrance, entrance, interior route to the voting area, and voting area. The method for providing these opportunities may include allowing the individual to vote at another nearby location that is accessible, allowing individuals with disabilities to vote by an absentee ballot that is accepted if postmarked on the day of the election (or picked up by election officials at the home of the voter on the same day as the election), providing curbside voting at the inaccessible polling place, or any other method that ensures that voters with disabilities have the same degree of information available to them when casting their ballots as others. If curbside assistance is provided and a polling place official is not stationed outside to provide assistance to people with disabilities in curbside voting, it must include a reliable, effective mechanism by which individuals with disabilities can summon election officials to provide curbside assistance without leaving their vehicles and ensure prompt response and assistance with curbside voting from polling officials.
25.	Within three months of the effective date of this Agreement, the County will survey its voter registration locations for accessibility to persons with disabilities by using the form provided at Attachment F and will report the results of this survey to the Department. If barriers to access are identified, the County will implement and report to the Department its plan to provide program access, which may include allowing persons to register to vote through alternative means or at alternative locations.
26.	Within three months of the effective date of this Agreement, the County will make all voter registration materials available in alternate formats, including Braille, large print, audio tape, and computer disk.
27.	Within the month prior to the next election that utilizes the County's polling places, and at yearly anniversaries of the effective date of this Agreement until it expires, the County will train poll workers on the rights of people with disabilities and the practical aspects of assuring those rights. The training will cover, at minimum, the need to maintain the physical accessibility of polling locations; how to assist people with disabilities, as necessary; and how to operate any non-standard voting equipment or accessible features of standard equipment (particularly new, accessible equipment).
28.	If the County contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the County will ensure that the other entity complies with the following provisions on its behalf.
29.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).
30.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others. Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification. If the County adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability. Whether or not a registry is used, the County plan should address accessible transportation needs for persons with disabilities.
31.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster. The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.
32.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that at least one emergency shelter has a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice). Such shelter(s) will be made available to persons whose disabilities require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration. The written procedures will include a plan for notifying persons of the location of such shelter(s).
33.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters. The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals.
34.	Some of the of the County's emergency shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA. This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.
35.	Within one month of the effective date of this Agreement, the County will request in writing that each of the owners and operators of its emergency shelters will identify and remove barriers to access for persons with disabilities. The request will specify that the remediation be completed within one year of the effective date of this Agreement. The County will simultaneously send a courtesy copy of the request to the Department.
36.	Within 14 months of the effective date of this Agreement, the County will survey its emergency shelters to determine whether the barriers to access have been removed. If not all barriers have been removed, the City will identify within 18 months of the effective date of this Agreement an appropriate number of alternate shelters where the parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms to the shelter area comply with the Standards.
37.	Within three months of the effective date of this Agreement and until all emergency shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area, the County will identify and widely publicize to the public and to persons with disabilities and the organizations that serve them the most accessible emergency shelters.
38.	To the extent that the County provides opportunities for post-emergency temporary housing to its residents, within 3 months of the effective date of this Agreement, it will develop, implement, and report to the Department its plans for providing equivalent opportunities for accessible post-emergency temporary housing to persons with disabilities. Within one year of the effective date of this Agreement, the County will ensure that information it makes available regarding temporary housing includes information on accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.
39.	Within three months of the effective date of this Agreement, the County will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.
40.	Within three months of the effective date of this Agreement, the County will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992. Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement. Filling a pothole is not considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.
41.	Beginning no later than three months after the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.
42.	Within three months of the effective date of this Agreement, the County will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992. Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.
43.	Beginning no later than three months after the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.
44.	Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the County will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the County (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
E.	Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.
46.	The County will ensure that all buildings and facilities constructed by or on behalf of the County are constructed in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
47.	The County will ensure that alterations to County facilities are made in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
48.	The elements or features of the County's facilities that do not comply with the Standards, including those listed in Attachments I, J, and K, prevent persons with disabilities from fully and equally enjoying the County's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.
49.	The County will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
50.	Within three months of the effective date of this Agreement, the County will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.
51.	Newly Constructed Facilities: In order to ensure that the following spaces and elements in County facilities, for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment I.
52.	Altered Facilities: In order to ensure that the following spaces and elements in County facilities, for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment J.
53.	Program Access in County Existing Facilities: In order to ensure that each of the County's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the County will take the actions listed in Attachment K.
A.	Whatever written information is provided regarding its Domestic Violence Programs will also be provided in alternate formats, including Braille, large print, audio recording, and electronic formats, upon request.
B.	Enter into contracts or make other arrangements with qualified sign language and oral interpreters to ensure their availability when required for effective communication with persons who are deaf or hard of hearing. The type of aid that will be required for effective communication will depend on the individual's usual method of communication, and the nature, importance, and duration of the communication at issue. In many circumstances, oral communication supplemented by gestures and visual aids, an exchange of written notes, use of a computer or typewriter, or use of an assistive listening device may be effective. In other circumstances, qualified sign language or oral interpreters are needed to communicate effectively with persons who are deaf or hard of hearing. The more lengthy, complex, and important the communication, the more likely it is that a qualified interpreter will be required for effective communication with a person whose primary means of communication is sign language or speech reading.
C.	If the County's Domestic Violence Programs operate a hotline to take telephone calls of an emergency nature, the County shall ensure that it provides equivalent service for persons who use TTY's, including providing direct-connection service for TTY users with hotline operators, without requiring TTY users to call through a third party operator, such as through the state or local Telecommunication Relay Services. The County will obtain the necessary equipment, establish the written procedures, and provide the training necessary to ensure effective communication by Hotline staff with direct-connection callers using TTY's, as well as the training necessary to respond to callers who use the Telecommunication Relay Services.
D.	Survey facilities used as shelters or designated as potential shelters – or for counseling, job training, education, clothing or household provisioning, or other aspects of Domestic Violence Programs – to ensure that adequate arrangements are available for potential clients and family members with disabilities, including adults and children who have mobility impairments, who are blind or have low vision, and who are deaf or hard of hearing. Within one year of the effective date of this Agreement, modify each such facility to remove the barriers or, alternatively, procure another, fully accessible facility to ensure that potential clients and family members with disabilities have integrated options when participating in a sheltering or other Domestic Violence program. Nothing in this Agreement requires any modifications that would compromise the confidentiality of a shelter or counseling center. Until there is a sufficient stock of accessible housing and other facilities within the sheltering program, the County will implement written procedures ensuring that it has identified temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) and other facilities that could be used if people with disabilities need sheltering or inservice access to a Domestic Violence Program. The cost to potential clients of being housed or otherwise served in alternate accessible facilities shall not exceed any costs normally attributed to clients of the County's Domestic Violence Programs.
E.	Implement written procedures and modify, as appropriate, eligibility criteria, to ensure that no person with a disability is turned away from a shelter or otherwise denied the opportunity to benefit from the services of the County's Domestic Violence Programs on the basis of disability.
F.	Implement written procedures to ensure that persons with disabilities who use service animals are not denied or discouraged from participating in Domestic Violence Programs, are able to be housed and served in an integrated environment, and are not separated from their service animals while participating in the County's Domestic Violence Programs even if pets are normally not permitted in the facilities where such programs are conducted. The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals. If the County's Domestic Violence Programs require clients to make any payments for shelter or other services they provide, clients shall not be required to make additional payments because they or their family members use service animals.
G.	Implement written procedures to ensure that reasonable modifications are made to the County's Domestic Violence Programs when necessary for a client or family member with a disability to participate in such Programs, unless doing so would fundamentally alter the nature of the program.
H.	Implement written policies to ensure that despite any "drug-free" policy of the County's Domestic Violence Programs, persons with disabilities who use medication prescribed for their use are able to continue using such medication while participating in such Programs or being housed in a shelter.
55.	If the County contracts with another entity to provide or operate programs that provide shelter, counseling, or other assistance or supportive services to victims of domestic violence or abuse and their families (hereafter referred to as "Domestic Violence Programs"), it will ensure that the other entity complies with the preceding provisions on its behalf. If that entity will not comply with the following provisions, the County will nonetheless take all necessary steps to ensure that its program is accessible to persons with disabilities.
56.	Some of the of the County's shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA. This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.
57.	This Agreement shall not be construed to require the County to divulge confidential information relating to the location or existence of any Domestic Violence Programs, beyond what is otherwise required by applicable law or what is necessary for the Department to effectively enforce this Agreement.
58.	Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the County will submit written reports to the Department summarizing the actions the County has taken pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
59.	Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the County will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).
60.	Within six months of the effective date of this Agreement, the County will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. The County will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.
61.	Within one year of the effective date of this Agreement, the County will deliver its training program to all County employees who have direct contact with members of the public. At the end of that period, the County will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.
62.	If at any time the County 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 will not be unreasonably withheld or delayed.
63.	The Department may review compliance with this Agreement at any time. If the Department believes that the County has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the County 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 County, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.
64.	For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the County to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
65.	Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
66.	This Agreement is a public document. A copy of this document or any information contained in it will be made available to any person by the County or the Department on request.
67.	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 (including its Attachments, which are hereby incorporated by reference), will 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 County's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
68.	This Agreement will remain in effect for three years.
69.	The person signing for the County represents that he or she is authorized to bind the County to this Agreement.
70.	The effective date of this Agreement is the date of the last signature below.


Submitted on Briefs April 29, 1994.
Appeal from the Common Pleas Court, Allegheny County, No. S.A. 4251 of 1992, Douyle, J.
William A. Kuhar, Jr., Asst. Counsel, Appellate Section, and Timothy P. Wile, Asst. Counsel In-Charge Appellate Section, for appellant.
Robert G. Del Greco, Jr., for appellee.
Before PELLEGRINI and FRIEDMAN, JJ., and LORD, Senior Judge.
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Allegheny County overturning the one-year suspension of Michael John Sladic's operating privilege for failure to submit to a chemical test pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1).
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
The sole question which the Department posits for our review is whether the trial court erred in determining that Sladic's response to the request for a chemical test did not fall so substantially short of an unequivocal assent as to constitute a refusal?
Our scope of review in a license suspension case is limited to a determination of whether findings of fact are supported by competent evidence, errors of law have been committed, or the trial court's decision demonstrates a manifest abuse of discretion. Lewis v. Commonwealth, 114 Pa. Commw. 326, 538 A.2d 655 (1988).
It is important to note that neither the Commonwealth's witnesses nor the defendant himself testify that a plain refusal was articulated.
This court is inclined to agree with counsel for the defense when he states that the officer's impatience was the cause of the refusal rather than any action or inaction on the part of the defendant.
While, at the time the testing was attempted, the defendant may have been overly-persistent [sic] in his questioning, it is apparent to this court that the officers may have been to [sic] quick to mark a refusal.
Commonwealth of Pennsylvania v. Sladic (No. SA 4251 of 1992, filed November 4, 1993), slip op. at 2.
The Department cites Appeal of Kilcullen, 103 Pa. Commw. 521, 520 A.2d 947 (1987) to support its contention that Sladic's failure to assent to the requested chemical test amounts to a refusal. In Appeal of Kilcullen, the licensee stated in pertinent part: "I didn't never say I would not take the test. I never said I would." Id. at 524, 520 A.2d at 948. (Emphasis in original.) We said in that case that the licensee's "admitted failure to make a decision in response to the officers' requests constitutes a refusal under 75 Pa. C.S. § 1547." Id. at 524, 520 A.2d at 948-949.
According to the Department, Appeal of Kilcullen is controlling here because Sladic, like Kilcullen, never testified that he agreed to submit to the chemical test requested of him. While we think that case is not on all fours with the one at bar, since here Officer Espy testified Sladic answered "nein" the fifth time he asked to test him, we agree that "anything substantially short of an unqualified assent to a request to submit to a chemical test constitutes a refusal." Id. at 524, 520 A.2d at 948; see also Conrad v. Department of Transportation, 142 Pa. Commw. 642, 655, n. 25, 598 A.2d 336, 343, n. 25 (1991). Certainly, the response of "nein" to a request for a chemical test falls substantially short of an unequivocal yes; it is in fact an unequivocal no.
Moreover, a police officer with reasonable grounds to think a licensee is driving under the influence is able, in his unfettered discretion, to ask that licensee to submit to a test of his breath, blood or urine under Section 1547 of the Vehicle Code. Pickens v. Department of Transportation, Bureau of Driver Licensing, 152 Pa. Commw. 14, 17, 618 A.2d 474, 475 (1992). (Emphasis added.) It is clearly not Sladic's right to choose which chemical test to take, and he could not refuse to submit to testing simply because he believed his "inhalation" of anti-freeze would have a dubious effect. See Bender v. Commonwealth, 103 Pa. Commw. 485, 520 A.2d 919 (1987), also cited by the Department, wherein we decided that a licensee could not refuse a blood test due to his fear that his prescription medication would alter the outcome.
Although the trial court concluded that none of the witnesses testified Sladic gave a "plain refusal," we must disagree. A refusal articulated in German to a question asked in English, when there is no issue as to the licensee's ability to understand the question, is still a refusal — plain and simple. As well, we cannot agree with the trial judge's conclusion that "the officers may have been to [sic] quick to mark a refusal" since the court also admitted that "the defendant may have been overly-persistent [sic] in his questioning."
We are at a loss, then, to discern how exactly the trial court reached its decision and must confess that, had the judge made specific credibility determinations and more specifically outlined his findings of fact and conclusions of law, we would have been better aided in our determination of this matter. Therefore, we suggest the court in the future delineate more explicitly its findings of fact and conclusions of law. However, we are satisfied that our resolution of this case is supported by the evidence of record and that the trial judge erred as a matter of law when he held that Sladic's actions did not constitute a refusal under section 1547(b)(1), as this Court's precedent has interpreted it.
AND NOW, this 7th day of June, 1994, the order of the Court of Common Pleas of Allegheny County, No. SA-4251 of 1992, dated May 12, 1993, is reversed.


text:
1. Where a party agrees by note to pay a certain sum at the expiration of a year with interest on it at a rate named, the rate being higher than the customary one of the state or territory where he lives, and does not pay the note at the expiration of the year, it bears interest not at the old rate, but at the customary or statute rate.
2. If, however, the parties calculate interest and make a settlement upon the basis of the old rate, and the debtor gives new notes and a mortgage for the whole on that basis, the notes and mortgage are, independently of the Bankrupt Act and of any statute making such securities void in toto as usurious, valid securities for the amount which would be due on a calculation properly made. They are bad only for the excess above proper interest.
3. Where a person owing money, principal and interest, for some time overdue but secured by mortgage, accounts with his creditor and on computation a sum is found as due for the principal and interest added together, any new mortgage given for the whole and on the same property on which the former mortgage was given is not, upon satisfaction's being entered on the old mortgage, to be considered as a new security, and so open to attack under the Bankrupt Law if made within four months before a decree in bankruptcy against the debtor. If the old security was not a preference, neither will the new one be so. They are to be considered as being for the same debt.
Firman, assignee of Wright, a bankrupt, filed a bill in the court below against Burnhisel to set aside a mortgage given by the said Wright before his bankruptcy to the said Burnhisel, the bill alleging that the mortgage was void under the Bankrupt Act.
Wright executed three promissory notes, each payable "in one year from date with interest at 25 percent."
The first, dated March 26, 1866, was to Burnhisel, and for $2,450.
The second, dated May 9, 1866, was to Pond, and for $951.
The third, dated May 26, 1867, was to Burnhisel, and for $950.
All three notes were secured by mortgages on the same property. It did not appear from anything in the case what rate of interest prevailed in Utah Territory when the notes were given, but on the 14th of February, 1868 (by which time all three of the notes had become due), a statute of the territory enacted that it should be lawful to take 10 percent interest per annum when the rate had not been agreed upon by the parties, and by an act passed in 1869, it was enacted directly that parties might agree on any rate of interest, but that when none had been agreed on, the rate should be 10 percent.
In this state of things, nothing having been paid on either of the notes to Burnhisel, he and Wright on the 1st of August, 1871 -- that is to say, three years and more after statute had fixed the rate of interest in Utah at 10 percent, where the parties had not agreed upon a different rate -- made a settlement of the interest due on the two notes to Burnhisel. They computed it at 25 percent per annum during the whole time from the date of the notes down to the time of the settlement, and so made it amount to $4,440. And for this sum, as arrears of interest, Wright gave to Burnhisel another note payable in one year with interest at 10 percent.
On the 26th of April, 1872, Burnhisel having bought for what appeared due as principal ($951) the note to Pond, he (Burnhisel) and Wright made another settlement, making the sum due by Wright to be $9,622, and Wright gave to Burnhisel two new notes secured by mortgage upon the same estate on which the three former notes had been secured. One note was for $4,220, payable June 1st following (1872), with interest from 1st May at the rate of 25 percent payable monthly till the principal was paid. The other note was for $5,402, payable at the same time as the other, with interest at the rate of 10 percent; this too payable monthly till the principal was paid. Satisfaction was entered on all the old mortgages, and the notes were surrendered to Wright the words "Settled by new arrangement and notes, April 26, 1872," being written upon them.
" Question. At what rate of interest was the computation made to meet the amount of the two notes of April 26, 1872?"
" Answer. The principal at 25 percent per annum and the interest which had accrued up to the 1st of August, 1871, at the rate of 10 percent per annum, up to the date of the said two notes. There was no interest computed on the Pond note in the settlement of 1872, the same being put in at $951, just what I actually paid."
Wright having been decreed a bankrupt within less than four months after the last two notes, and the mortgage to secure them was given, Firman, the assignee, filed a bill alleging that the mortgage was void under the thirty-fifth section of the Bankrupt Act. The bill set out fully all the notes and mortgages.
"If any person, being insolvent, within four months before the filing of the petition against him, with a view to give preference to any creditor or person having a claim against him, makes any pledge or conveyance of any part of his property, the person receiving such pledge or conveyance or to be benefited thereby having reasonable cause to believe such person insolvent, and such pledge or conveyance is made in fraud of the provisions of this act, the same shall be void and the assignee may recover the property or the value of it from the person receiving it or so to be benefited."
1st. In that interest, in being calculated for more than one year at 25 percent, had been calculated on a basis that created a debt voluntarily, and that this debt -- the interest, namely, for several years at 25 percent -- had now, in April, 1872, and in contemplation of bankruptcy, been first secured by the mortgage then made.
2d. That the old debt, both principal and interest, at 25 percent for one year, and all other lawful interest, had been satisfied, and that the mortgage of April, 1872, was a new security.
The court below held the case fraudulent within the above-quoted section of the Bankrupt Act and awarded the money to the assignee in bankruptcy. From that decree Burnhisel appealed.
2d. To the face of the note of Pond with the like lawful rate of interest after its maturity down to the same period. [ Footnote 1 ] The implication of the "act relative to interest" of February 14, 1868, is exactly the same as the affirmation of the act upon the same subject of 1869. The latter act was therefore unnecessary. [ Footnote 2 ] Both these acts fix the rate at 10 percent where no rate has been agreed upon. What it was in such cases, prior to the taking effect of the first act, we are not advised.
II. In order to bring a security for a debt within the provision of the Bankrupt Law, relied upon by the appellee, it is necessary that all the prescribed conditions should concur.
and mortgage had never existed. The rights of other creditors were in no wise affected by the substitution. The mortgaged premises, when sold, yielded a sum less than sufficient to pay the amount due on the original securities. It cannot be justly said that any property was withdrawn or any preference given within the four months. The withdrawal and the preference were years before. The new securities were only the recognition and continuity of those which preceded them. The change was one of form rather than of substance. It is as much the purpose of the law to sustain all valid claims arising beyond the time specified as it is to strike down the frauds within that time which it denounces. The assignee took the estate subject to the rights, legal and equitable, of all other parties. [ Footnote 5 ] Our views in this case are in harmony with those expressed in several recent cases in which we had occasion to consider this section of the Bankrupt Law. [ Footnote 6 ] We hold that the section does not affect securities within the category of those before us.
There is another ground upon which a judgment for the appellant may well be placed. As before remarked, the new securities were intended to take the place of the prior ones. If the new ones are adjudged invalid, the cancellation and surrender of the prior ones will have been without the shadow of a consideration. If the cancellation and surrender are permitted also to stand, Burnhisel will have lost his debt without fault on his part, and contrary to the intent of both debtor and creditor in making the change of securities. Burnhisel will be in no better situation than if he had given up the old securities upon being paid in coin or currency which he believed to be good, but which turned out to be counterfeit. Where there is a failure of consideration and fraud or mistake in such cases, a court of equity will annul the cancellation and revive the securities. Upon being so revived they resume their former efficacy. This is an ordinary exercise of the jurisdiction of such tribunals.
The application of this principle occurs most frequently in cases of usury. It is well settled that if a security founded upon a prior one be fatally tainted with that vice, and the prior one were free from it but given up and cancelled, and the latter one thereafter be adjudged void, the prior one will be revived and may be enforced as if the latter one had not been given. The cases to this effect are very numerous. [ Footnote 8 ] A vendor's lien may be revived under the same circumstances. [ Footnote 9 ] In the same suit, wherein there is a failure to recover upon the void security, the valid one, on account of which it was given, may be enforced. In the case before us all the notes and mortgages are fully set out in the bill. There is therefore no obstacle arising from the state of the pleadings.
Embarrassment sometimes occurs in such cases from the attaching of intervening rights. Here there are none, and as regards the assignee there can be none. If the later securities were void, as insisted by the appellee, then the appellant would be entitled to relief in this view of the case.
Decree reversed and the case remanded with directions to enter a decree in conformity with this opinion.
Brewster v. Wakefield, 22 How. 127; Young v. Godbe, 15 Wall. 562.
United States v. Babbitt, 1 Black 61.
Wearse v. Pierce, 24 Pickering, 141; Abbe v. Newton, 19 Conn. 20; Rood v. Winslow, 2 Doug. 68; Mackey v. Brownfield, 13 S & R. 239; United States v. Bradley, 10 Pet. 343.
Wycoff v. Longhead, 2 Dall. 92; Turner v. Calvert, 12 S. & R. 46.
Gibson v. Warden, 14 Wall. 244.
Wilson v. City Bank, 17 Wall. 473; Tiffany v. Boatman's Savings Institution, 18 Wall. 375; Cook v. Tullis, 18 Wall. 332.
Starr v. Ellis, 6 Johnson's Chancery 395; Neville v. Demeritt, 1 Green's Chancery 336; Barnes v. Camack, 1 Barbour Supreme Court 396; Loomis v. Hudson, 18 Ia. 416; East In. Co. v. Donald, 9 Vesey 284; Hore v. Becher, 12 Simons 465.
Parker v. Cousins, 2 Grattan 389; Farmers' and Mechanics' Bank v. Joslyn, 37 N.Y. 353; Cook v. Barnes, 36 id. 521; Rice v. Welling & Fake, 5 Wendell 595.
Cripper v. Heermance, 9 Paige 211.

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