|II. ENFORCING THE ADA PART 3
Following a 2001 agreement with New York-New York Hotel & Casino in Las Vegas, Nevada,112 the 2023 room hotel will include 32-inch wide accessible bathroom doors in every room so that guests with disabilities may not only use the accessible rooms, but will also have access to bathrooms in rooms and suites where family members or friends are staying. In addition, New York-New York will provide accessible spas, jacuzzis, restaurants, bars, meeting rooms, gaming tables, and slot machines, as well as sign language interpreters, among other improvements.
In 2005, Sports Haven International agreed to complete barrier removal throughout Skyline Mountain Resort in Fairview, Utah, including making at least one of its cabins fully accessible, removing barriers to the clubhouse, including to toilets and shower rooms, and to providing accessible parking at the golf course.113 As a result of a 2004 Settlement Agreement, the Marriott at Metro Center in Washington D.C., recently added roll-in showers in several guest rooms to permit persons who use wheelchairs to shower without transferring onto a tub seat.114 The roll-in showers were required by the ADA but had not been included when the hotel was completely renovated. The Department also recently completed negotiations with the Madonna Inn, a California hotel that provides unique amenities in each guest room; the 2006 agreement calls for barrier removal throughout the historic hotel.115
In 2001, the Department entered into an agreement with Norwegian Cruise Lines to settle allegations that Norwegian was discriminating against guests with vision impairments by requiring them to travel with attendants, provide doctors' notes proving ability to travel, and signing forms assuming liability for on-board injuries during travel, which were not required of sighted guests. As part of the agreement, Norwegian agreed to discontinue such practices and to apply the same requirements to all travelers regardless of disability. The cruise line also agreed to pay a total of $42,000 in damages. Although many cruise lines have argued that they are not covered by the ADA, the Supreme Court recently held in Spector v. Norwegian Cruise Lines116 that cruise lines doing business in U.S. ports are covered by the ADA, at least with regard to certain programs or activities. Although that suit was unrelated to the Department's earlier settlement agreement, the Department filed a "friend of the court" brief in the court of appeals and Supreme Court. The Department is currently reviewing over 200 complaints about cruise lines in light of this recent Supreme Court decision.
The Department often receives complaints from guests with hearing disabilities. The Department recently found that three Ramada Inn hotels had failed to provide "communication kits" to guests with hearing disabilities. Under a series of 2003 agreements with each of the three hotels, the hotels agreed to purchase an appropriate number of kits to assure that guests with hearing impairments would have TTY's, visual door knockers, visual or tactile alarm clocks, and visual signaling devices for their rooms.117 In addition, each hotel will provide TTY's at the desk so that guests may call for assistance with anything from maid service to emergencies and communicate with the hotel management as other guests do routinely. In addition, the Department has reached settlement agreements with other hotels and hotel chains across the country, including Hilton Garden Inn, Super 8, Howard Johnson's, Best Western, Westin, Days Inn, Holiday Inn, and other independent hotels.
The Department also frequently receives complaints from persons with low vision, claiming that hotels have refused to rent rooms to them because of guide dogs. Among others, settlement agreements were completed in 2003 with the Hampton Inn in Taos, New Mexico,118 and the Hilton Garden Inn in Washington D.C.,119 requiring the hotels to permit service animals into the hotel and to enforce policies that allow persons with vision impairments to share in the amenities at those hotels.
Equal access to public and private transportation is one of the most important rights guaranteed by the ADA because it facilitates the exercise of so many other ADA rights. Working, accessing government services, purchasing groceries many people with disabilities can only do these things if they have accessible transportation. Accessible transportation also helps integrate people with disabilities into the mainstream of American life. An accessible shopping mall, theater, or park is meaningless for someone who is unable to get there.
The Department has worked to ensure the accessibility of both public and private transportation services and programs. One person who has benefitted from the Department's efforts to make public transportation accessible is Lawrence Dilworth, Jr., a Detroit resident who has spina bifida and uses a wheelchair. Mr. Dilworth encountered so many Detroit buses with inoperable wheelchair lifts that he completely stopped using the city's buses. He and other individuals with disabilities filed a lawsuit against the City of Detroit, alleging that the city used buses with inoperable wheelchair lifts and lacked maintenance and repair programs that would ensure the availability of buses with working lifts. The Department intervened in the litigation to support Mr. Dilworth and the other plaintiffs' right to accessible public transportation.
In 2005, Detroit signed a consent decree under which it agreed to establish systems for promptly identifying, removing from service, and repairing buses with malfunctioning wheelchair lifts, including performing daily maintenance checks and keeping service logs for each bus.120 Detroit also agreed to retrain its drivers and mechanics in the proper way to deploy wheelchair lifts and to assist passengers with disabilities with courtesy and respect. In addition, the city agreed to obtain alternative transportation promptly when there are breakdowns in accessible service, to implement a complaint system to ensure that ADA-related complaints are quickly addressed and resolved, to appoint an ADA coordinator, and to retain an independent auditor to assess compliance with the agreement.
- E-mail dated September 7, 2006, from Lawrence W. Dilworth, Jr.
Private transportation entities such as taxis and shuttles also provide critical services to people with disabilities. Approximately ten percent of the customer base for taxis consists of people with disabilities.121 Travelers with disabilities also rely on private shuttles to get them to airports and rental cars. The Department has made significant efforts to ensure that taxis and shuttles are accessible to people with disabilities.
One taxi company agreed to make changes after the Department investigated a complaint alleging that one of its drivers refused to help a customer place his wheelchair in the trunk. The company now requires its drivers to provide service to people with disabilities, to assist with the stowing of mobility devices, to transport service animals in the company of individuals with disabilities, to charge the same fares and fees to individuals with disabilities accompanied by service animals or equipment as is charged to others, to post disability rights and complaint notices in taxis, and to maintain a log of all such complaints and resolutions.122 Another company allegedly told people who used wheelchairs that the company's policy did not permit its cab drivers to transport wheelchairs. The Department secured monetary rewards and injunctive relief for these customers.123 Finally, the Department has resolved complaints, without litigation, to ensure that individuals who use a service animal because they are blind, have low vision, or are deaf have equal access to taxi cab services.124
The Department has also helped ensure the accessibility of airport and rental car shuttles. SuperShuttle International, Inc., the nation's largest door-to-door airport shuttle company, agreed in 2002 to provide the same level of service to wheelchair users as it provides to the general public.125 This was the first agreement reached by the Department with a national company that provides transportation on demand as opposed to transportation along a fixed route on a fixed schedule. SuperShuttle agreed to maintain two accessible vehicles at each of its eleven corporate locations nationwide and to subcontract with accessible transportation providers to meet overflow demand. These eleven corporate locations include Phoenix, Arizona; Los Angeles, Califor-nia; Denver, Colorado; Washington, D.C.; Tampa, Florida; Baltimore, Maryland; New York, New York; and Dallas/Fort Worth, Texas. In addition, Super-Shuttle agreed to train its dispatchers, reservation agents, and drivers about providing equivalent service to its customers on a nondiscriminatory basis. SuperShuttle also paid $4612 in damages to the National Multiple Sclerosis Society.
In addition, ANC Rental Corporation and its subsidiaries, Alamo Rent-A-Car, LLC and National Car Rental System, Inc., have agreed to provide accessible shuttle buses at all airport car rental locations owned by ANC nationwide.126 The settlement agreement resolves several complaints filed by travelers who use wheelchairs or scooters alleging that the companies did not provide accessible shuttle buses between the airport terminal and the rental lots. Under the 2003 agreement, ANC agreed to acquire at least one accessible shuttle bus at each of its locations. ANC also agreed to ensure that all larger shuttle bus vehicles seating 17 or more passengers, as well as up to 10 percent of smaller vehicles they purchase or lease in the future, are accessible. They also agreed to adopt a policy of ensuring equivalent service to individuals with disabilities by providing curbside pick-up and drop-off services when an accessible shuttle bus vehicle is not available.
The Department also entered into a consent decree in 2004 with The Bette Bus Shuttle, Inc., a private provider of fixed route transportation between Memphis, Tennessee, and the airport at Little Rock, Arkansas, and its successor company, Metro Services, Inc. of Moscow, Tennessee.127 The U.S. Attorney for the Western District of Tennessee received a complaint alleging that Bette Bus did not provide wheelchair-accessible vans and that Bette Bus staff refused to allow the complainant to take her wheelchair on its inaccessible vans. As a result, the complainant, who uses a wheelchair for full mobility, was required to travel without her wheelchair, severely limiting her ability to leave her hotel room. The Bette Bus owner acknowledged that the company had purchased at least six 15-passenger vans since 1990, none of which were lift-equipped, and that the company had never provided service to people with disabilities because it thought it was too expensive and would require medical personnel on board. The consent order requires immediate installation of a lift on one vehicle, the equipping of more vehicles with lifts in the future depending on the degree of fixed-route service provided, the elimination of discriminatory policies, the provision of training to employees on how to assist persons with disabilities, and payment of $1000 in damages and $500 in civil penalties.
4. Gas Stations and Convenience Stores
Advances in automobile modifications have enabled a growing number of people with disabilities to drive. People with disabilities also travel frequently as passengers. As both drivers and passengers, people with disabilities must have access to gas pumps and accompanying convenience stores.
Federal regulations require gas stations to provide equal access for their customers with disabilities. In an agreement entered in 2006 by the United States Attorney's Office for the District of Minnesota, Twin Cities Avanti d/b/a Oasis Markets agreed to undertake a significant barrier removal program at its gas station facilities in Minnesota to ensure access for individuals with disabilities.128 In addition, Oasis Markets agreed to train all of its employees to assist customers with disabilities with refueling, consistent with the Department's technical assistance guidance in this area.
"We hope that this settlement will send a message to other businesses about the importance of accessibility to all of their customers . . . . It is great to see the system work for positive change!"
- E-mail dated August 16, 2006, from Diane Winegar, Advocacy/Ramp Program Manager, SMILES Center for Independent Living, Mankato, Minnesota, on the Twin Cities Avanti d/b/a Oasis Markets settlement agreement
The ADA also requires that retail establishments like the convenience stores connected to gas stations comply with the ADA's new construction alterations and barrier removal requirements. Parking areas, entrances, product displays, and other areas available to the store's customers must comply with the ADA.
The Department received a complaint from a woman whose son a wheelchair user was allegedly unable to enter a Little General convenience store to use the restroom. The store's entrance and restroom allegedly had barriers to access, the removal of which would have been readily achievable. After an investigation, the Department entered into an agreement in 2003 with Little General Stores, Inc. that required Little General to pay the complainant $3000 in compensatory damages and to improve accessibility throughout the company's chain of 48 gas station/convenience stores.129 Little General represented that 30 out of its 48 retail stores did, in fact, comply with the ADA and agreed to submit documentation and photos of certain elements (such as parking, entrances, toilet rooms, counters, and interior and exterior routes from each store), and to work with the Department to bring these stores into compliance if any further barriers were identified. In addition, Little General agreed to remove barriers to access where readily achievable in the 18 remaining stores that were constructed before the ADA's effective date. It also agreed to make modifications to stores that were altered since the ADA's effective date in order to bring them into compliance with the ADA Standards for Accessible Design.
In a similar agreement with the Department, Sunoco Optima committed to ensuring accessibility at its gas station/convenience stores.130 In 2005, Sunoco Optima agreed to make modifications to its Optima brand gas stations and convenience stores, including by improving accessibility of parking, gasoline pumps, curb ramps, convenience store entrances, and access to items for sale within the convenience stores. Sunoco also agreed to build future stores in compliance with the ADA Standards for Accessible Design.
Similarly, the Department received a complaint alleging that three Florida Chevron stations with convenience stores had failed to remove numerous architectural barriers that prevented or restricted access to the stations by individuals with disabilities, including people who use wheelchairs and people with visual impairments. After investigating the complaint, the Department entered into an agreement in 2006 with Automated Petroleum and Energy Company, Inc., the owner and operator of the gas stations with convenience stores, requiring the company to remove the barriers, including by adding van-accessible parking spaces; reconfiguring entrances; rearranging furniture to provide accessible aisles; and providing accessible restrooms by widening doorways, adjusting the height of lavatories and dispensers, and installing grab bars and accessible hardware.131
5. Dining and Shopping
Restaurants have long served as a key setting for social experiences in America. Whether the reunion location for a milestone family celebration, the intersection point for networking business associates, or the gathering spot for trend-conscious teens, restaurants regularly serve as the backdrop for Americans' interactions with family, friends, and colleagues. Restaurant owners and staff go to great effort and expense to make the dining experience enjoyable, comfortable, and memorable for their patrons and to encourage their return business.
Although most restaurants focus on pleasurable dining experiences for all of their customers, in recent history some establishments have gained notoriety for their discriminatory practices forbidding particular groups entry or service. Today, people with disabilities continue to face barriers to entering and enjoying restaurant experiences. These barriers come in various guises, but they are alike in their ability to bar entrance, embarrass patrons, and even endanger individuals with disabilities.
Lack of accessible parking and steps at entrances, for example, can send the message that people who have mobility impairments are not welcome. That is the message received, for example, by a father who uses a wheelchair when he takes his toddlers out for a long-promised treat and finds that there is no accessible parking in the restaurant lot. Even if he surmounts that barrier, when he arrives at the restaurant entrance he may find that he cannot enter because of two steps at the door.
The Department entered into a settlement agreement with NPC International, Inc. which operates approximately 800 Pizza Hut restaurants in 25 states and is the largest single franchisee of Pizza Hut restaurants in the United States.132 The March 2006 agreement with NPC will ensure accessible parking lots, entrances, seating areas, toilet rooms, self-service counters, and accessible routes through the restaurants. NPC will also build all future facilities in compliance with ADA Standards for Accessible Design, designate a compliance officer, and train all personnel involved in implementing the agreement.
Inaccessible parking and entrances are not the only barriers that keep people with disabilities from entering restaurants. No-pet policies prevent people with disabilities who use service animals from entering. Arguments can erupt over whether the restaurant owner must allow in a service animal, oftentimes in front of other patrons. The would-be patron with a disability frequently leaves embarrassed and unable to enjoy a meal with her family or friends like everyone else.
The Department worked to correct such a situation when it entered into a consent decree in 2003 with Top China Buffet, an Indianapolis restaurant that allegedly violated the ADA when it refused service to a woman who was accompanied by her service dog.133 The complainant, who uses a wheelchair, is assisted by the animal in picking up and delivering objects that she is unable to reach herself. A Top China employee allegedly refused entry to the complainant and her family as they entered the restaurant, even though the dog was wearing a blue harness identifying him as a service animal. The complainant and her husband told the employee that the dog was not a pet, but was her service animal and should be allowed to enter the restaurant. She presented a card certifying that her dog is a specially trained service animal, but the employee repeated that no dogs were allowed. Unable to be seated or served, she and her family left the restaurant. Top China agreed to take corrective steps, including adopting and enforcing a compliance policy about the treatment of customers who use service animals, training its employees, and posting appropriate signs at the restaurant welcoming individuals with disabilities who are accompanied by their service animals. Top China also agreed to pay a total of $5000 in damages to the complainant and her family and $2400 in civil penalties.
A recent survey by Open Doors Organization134 showed that almost two-thirds of adults with disabilities encountered obstacles in restaurants lack of clear routes through the restaurant, inaccessible restrooms, and counters and buffets that are too high to use making dining out a difficult or impossible experience. While the Open Doors Organization showed that in 2005 more than 50 percent of people with disabilities visited fast-food restaurants once a week, barriers within these popular restaurants continue to exist.135
One effort to remove barriers in a fast-food chain involved the Department's intervention in a lawsuit to enforce the barrier removal requirements of Title III against Valenti Mid-South Management, LLC, a franchisee operating a chain of 54 Wendy's Restaurants in Tennessee, Mississippi, Arkansas, and Missouri. Under the resulting consent decree, Valenti agreed to make a wide range of improvements to each of its restaurants to provide greater accessibility.136 The required barrier removal for each restaurant varies but generally includes providing new curb ramps from parking lots to sidewalks, creating more clear space at entrances to facilitate the opening of doors, reconfiguring customer service lines to allow access to wheelchair users, providing more accessible dining tables, lowering service and condiment counters, widening restroom doors, replacing toilets, adding or remounting grab bars, replacing lavatories, and lowering paper towel dispensers. The order also requires Valenti to pay damages to the private plaintiff in the amount of $25,000.
Although restaurants consider ensuring diners' comfort to be a priority, the connection between the comfort of diners with disabilities and accessible restrooms is too often ignored. Repeatedly, diners with disabilities find either that there are no accessible restrooms at all, that accessible restrooms are unusable because they are constructed improperly, or that accessible restrooms contain boxes and other storage materials making the spaces partially or completely inaccessible. Sometimes the accessible restrooms are so poorly constructed that they can cause injury to the user with a disability.
The safety of patrons with disabilities was the focus of a 2005 consent decree between the Department and 28 Memphis-area McDonald's restaurants owned by Fred Tillman and managed by Century Management.137 The decree ensures that the restaurants will be accessible to individuals with mobility disabilities and individuals who are blind or have low vision. The decree also provides for extensive barrier removal in these restaurants, including by installing a standard accessible stall or accessible unisex restroom in all restaurants, providing accessible routes from parking and public sidewalks, improving signage, lowering self-service counters, placing dispensers within proper wheelchair reach ranges, and removing protruding objects from circulation paths. The consent order also provides for damages in the amount of $40,000 to the complainant, an individual with a mobility disability who was injured when she attempted to use one of the inaccessible restrooms, and a civil penalty of $55,000. In a separate settlement agreement, the McDonald's Corporation guaranteed that it would implement the structural changes required by the consent decree in the event that Tillman or Century Management failed to comply.138
While eating out in restaurants offers a pleasurable social experience associated with food, grocery shopping is one of the basic activities of everyday living, essential to all of us. Yet people with disabilities face barriers even in getting milk and bread. Inaccessible parking, lack of curb ramps, shopping cart corrals that block passage into and out of the store, and aisleways narrowed by merchandise displays all contribute to barring people with mobility impairments from shopping for groceries for themselves and their families.
In an effort to make grocery shopping more accessible to customers with disabilities across the country, the Department in 2004 reached a settlement agreement with Safeway and the Disability Rights Education and Defense Fund, requiring Safeway to correct alleged ADA violations at its over 1500 grocery stores nationwide, including stores owned by Safeway and operated under another name such as Vons, Pavillions, Dominick's Fine Foods, Randall's, Tom Thumb, Genuardi's, or Carr-Gottstein Foods, Co. Safe-way agreed to complete barrier removal and to fix all alleged new construction violations before March 31, 2005.139 It also agreed to hire a full-time compliance officer who will be responsible for ensuring compliance throughout the chain, to provide ADA training to all store managers, and to hire an independent consultant to survey up to 90 Safeway stores (selected by the Department of Justice). Safeway was required to pay up to $200,000 in additional civil penalties as well if the surveys show substantial noncompliance.
"Disabled people ... do a lot of crafting. I'm very happy that they're going to be changing the stores."
- Amy Powers, customer of JoAnn Stores
Similarly, in 2006 the Department entered into a settlement agreement with JoAnn Stores, Inc., one of the nation's largest fabric and craft stores, to ensure that its 840 stores are accessible to people with disabilities.140 JoAnn agreed to make parking under its control accessible, add accessible routes from the parking areas to its stores, make its entrances accessible, widen its aisles, lower its fabric cutting areas and check-out counters, and make its merchandise display areas accessible. In addition, JoAnn agreed to provide ADA training for all store managers and other employees, and will incorporate ADA training into the curriculum at JoAnn Superstore Univer-sity. JoAnn also agreed to pay $55,000 in civil penalties if it fails to meet certain benchmarks and provided $2000 in compensatory damages to each of two complainants.
Shopping and dining out with family and friends are quintessentially American activities from which people with disabilities continue to be excluded. The Department is striving to ensure that over 50 million people with disabilities are given the same options as everyone else to socialize and accomplish daily chores independently and with dignity.
106 Harris Interactive Research Among Adults with Disabilities: Travel and Hospitality (July 2005) at 34. Prepared for Open Doors Organization.
107 42 U.S.C. § 12183.
108 42 U.S.C. § 12204.
109 28 C.F.R. § 36 app.A (2005).
110 28 C.F.R. pt. 36 app.B at 705 (2005).
111 Settlement Agreement between the United States and Motel 6 Operating LP (Aug. 12, 2004), available at http://www.ada. gov/motel62.htm.
112 Settlement Agreement between the United States and New York-New York Hotel and Casino LLC (Dec. 13, 2001), available at http://www.ada.gov/nyvegas.htm.
113 Settlement Agreement between the United States and Skyline Mountain Resort (Apr. 27, 2005), available at http://www. ada.gov/skylinemtn.htm.
114 Settlement Agreement between the United States and Marriott at Metro Ctr. Hotel(June 21, 2004), available at http://www. ada.gov/marriottmetro.htm.
115 Settlement Agreement between the United States and Madonna Inn, Inc. (Aug. 18, 2006).
116 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005).
117 Settlement Agreement between the United States and Kingston Ramada Inn, N.Y. (Jan. 7, 2003), available at http://www. ada.gov/kingston.htm; Settlement Agreement between the United States and Ramada Inn Philadelphia Int'l Airport, Essington, Pa. (Jan. 7, 2003), available at http://www.ada.gov/ramadaph.htm; Settlement Agreement between the United States and Ramada Inn and Suites, South El Monte, Cal. (Mar. 11, 2003), available at http://www.ada.gov/ramadabc.htm.
118 Settlement Agreement between the United States and Hampton Inn (July 21, 2003).
119 Settlement Agreement between the United States and Hilton Garden Inn (Nov. 5, 2003).
120 Dilworth v. City of Detroit, No. 04-73152 (S.D. Mich. Nov. 3, 2005), available at http://www.ada.gov/detroittransit05.htm.
121 Project Action, The Americans With Disabilities Act and You: Frequently Asked Questions on Taxicab Service, available at http://projectaction.easterseals.com/site/DocServer/TAXI_ADA_print-ready11-2__2_.pdf?docID=17743 (last visited September 7, 2006).
122 U.S. Dep't of Justice, Enforcing the ADA: A Status Report from the Dep't of Justice, (April - June 2002), available at http://www.ada.gov/aprjun02.htm http://www.ada.gov/limocab.htm.
123 Settlement Agreement between the United States and Limo Economy Cab (Dec. 1, 2005), available at http://www.ada.gov/ limocab.htm.
124 See, e.g., Settlement Agreement between the United States and Yellow Cab Drivers Association, Inc. (July 7, 2003), available at http://www.ada.gov/yellocab.htm; Settlement Agreement between the United States and Reno Sparks Cab Company (June 12, 2003).
125 Settlement Agreement between the United States and SuperShuttle Int'l, Inc. (Apr. 26, 2002), available at http://www.ada. gov/superstl.htm.
126 Settlement Agreement between the United States and ANC Rental Corp., Alamo Rent-a-Car, LLC, and Nat'l Car Rental System, Inc. (Oct. 10, 2003), available at http://www.ada.gov/alamonat.htm.
127 United States v. Bette Bus Shuttle, Inc. aka Metro Services, Inc. of Moscow, Tenn. (W.D. Tenn. Apr. 23, 2004), available at http://www.ada.gov/bettebus.htm.
128 Settlement Agreement between the United States and Twin Cities Avanti Stores LLC (d/b/a Oasis Markets) (June 22, 2006).
129 Settlement Agreement between the United States and Little General Stores, Inc. (Mar. 22, 2003), available at http://www. ada.gov/littlegen.htm.
130 Settlement Agreement between the United States and Sunoco, Inc. (R&M) (Nov. 29, 2005), available at http://www.ada.gov/ sunocooptima.htm.
131 Settlement Agreement between the United States and Automated Petroleum and Energy Co. Inc. (Mar. 22, 2006).
132 Settlement Agreement between the United States and NPC Int'l, Inc. (Mar. 27, 2006), available at http://www.ada.gov/npcinter.htm.
133 United States v. Top China Buffet, No. IP 02-1038 (S.D. Ind. July 8, 2002), available at http://www.ada.gov/topchina.htm.
134 Harris Interactive Research Among Adults with Disabilities: Travel and Hospitality (July 2005) at 11. Prepared for Open Doors Organization.
136 Perkins and United States v. Valenti Mid-South Management, LLC, No. 99-3070 (W.D. Tenn. May 1, 2001).
137 United States v. Century Mgmt., et al., No. 03-2061 (W.D. Tenn. Nov. 14, 2005).
138 Settlement Agreement between the United States and McDonald's Corp. (Nov. 14, 2005).
139 Settlement Agreement between the United States, et al. and Safeway, Inc. (Mar. 10, 2004), available at http://www.ada.gov/ safeway04.htm.
140 Settlement Agreement between the United States and JoAnn Stores, Inc. (July 18, 2006.