SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND THE BARTER FOUNDATION, ABINGDON, VIRGINIA

UNDER THE AMERICANS WITH DISABILITIES ACT DJ No. 202-80-33

 


A. BACKGROUND

1.The parties to this Settlement Agreement are the United States and The Barter Foundation, Incorporated (“Barter Foundation”).

2.This Agreement resolves an investigation and compliance review under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189, (the “ADA”), by the United States of the Barter Theatre building, the structures and grounds of Stonewall Square (“Stonewall Square facilities”), including Barter Stage II, the Barter Café, Barter Green (the grounds) and the parking area, and the pedestrian route connecting the Barter Theatre and the Stonewall Square facilities. The Barter Theatre building and Stonewall Square are located in the Town of Abingdon, Virginia. All these structures, facilities, and grounds are located in the Town of Abingdon’s Historic District which itself is listed in the National Register of Historic Places.

3.The investigation was initiated by a complaint filed with the United States by the Board of Directors for The Appalachian Independence Center, Inc. (“AIC”). In its complaint, AIC alleged that the Barter Foundation was violating the ADA by failing to include accessible parking and an accessible route of travel from the Barter Theatre building to the Stonewall Square facilities, namely, the Barter Stage II, the Barter Café, and the parking area.

4.On April 2, 2008, the United States notified the Barter Foundation of its findings and proposed remedial measures to be completed over a period of twelve (12) months. The Barter Foundation has fully cooperated with the investigation and has made a strong commitment to bring its structures and facilities in compliance with the ADA and the Barter Foundation has completed all the remedial measures proposed by the United States.

5.The Barter Theatre building is located on 127 West Main Street in Abingdon, Virginia, and houses a 508-seat proscenium theater where the theater’s professional acting company produces nine shows annually. Owned by the Town of Abingdon, the building is leased to the Barter Foundation for a fee of $1 per year. The theater opened on June 10, 1933, in an 1831 building that has seen many uses, including a church, a Sons of Temperance hall and “opera house,” a town hall, a firehouse, and a jail. It was designated the State Theater of Virginia in 1946. Additions to the original building were made in 1890 and 1950. The most recent construction project (alterations) was completed in April 1996.

Barter Stage II and the Café are located at 110 West Main Street on Stonewall Square, a green space across the street from the Barter Theatre building. Each year between eight and ten shows are featured at Barter Stage II by its professional acting company. The Barter Foundation, Inc. owns Stonewall Square and the facilities on it. Barter Stage II is housed in a converted brick church built in 1827. A lobby was added in 1978, and the seating was put into its current configuration in 1993. A new stage house and the Café were added to the building in 2001. At the same time, the old seats in the theater were replaced (in the same configuration), new aisle lighting was installed, and the toilet rooms were renovated. In 2006, Stonewall Square was altered to include a new brick walkway, stairs connecting the Stonewall Square facilities with the public sidewalk and street crossings to the Barter Theatre building. The parking area was resurfaced with asphalt. Earlier this spring, the Barter Foundation installed a privately funded fountain and sculpture at the base of the stairway. Recently, the Foundation constructed an accessible route connecting the Barter Theatre building with the Stonewall Square facilities and usable accessible parking on Stonewall Square.

B. JURISDICTION

The Barter Foundation, Inc.

6.The Barter Foundation owns the property known as Stonewall Square and the various buildings and structures on that property, including Barter Stage II, the Barter Café, the Barter Green, and a parking area. This parking area serves both these facilities and the Barter Theatre building, which is located across the street.

7.Under a lease agreement with Abingdon, the Barter Foundation operates the Barter Theatre building and has sole responsibility to maintain, repair, and operate the interior of the Barter Theatre building.

8.As the operator of the Barter Theatre building, a place of public accommodation, the Barter Foundation is subject to Title III of the ADA. 42 U.S.C. § 12181(7)(C); 28 C.F.R. § 36.104.

9.The Barter Foundation’s operations affect commerce. Accordingly, it is a place of public accommodation covered by Title III of the ADA. 42 U.S.C. §§ 12181(7)(B), (D), (E), and (H).

10.To comply with the Title III requirements the Barter Foundation must:

a.Ensure that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the Barter Foundation’s goods, services, and facilities. 42 U.S.C. §§ 12182 - 12183;

b.Provide full and equal enjoyment of the "goods, services, facilities, privileges, advantages, or accommodations" in the most integrated setting appropriate to individuals with disabilities. 42 U.S.C. § 12182(b)(1)(B); 28 C.F.R. § 36.203;

c.Modify policies, practices, and procedures in order to afford access to services, programs, and facilities to individuals with disabilities, unless making such modifications would fundamentally alter the nature of such services, programs, and facilities. 42 U.S.C. §§ 12182(a) and (b)(2)(A)(ii);

d.Remove architectural barriers in its existing facilities where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv);

e.Ensure that to all newly constructed or altered buildings and facilities are readily accessible and usable, by individuals with disabilities as required by the ADA regulations. 42 U.S.C. § 12183(a), and 28 C.F.R. Part 36, Appendix A (i.e., the ADA Standards for Accessible Design (“Standards”));

f.Ensure that contents of its public programs and other offerings are accessible and effectively communicated to individuals with disabilities making, where necessary, appropriate auxiliary aids and services available to ensure effective communication to individuals who are deaf or hard of hearing, or who are blind or have low vision, unless taking such steps would fundamentally alter the nature of the content of public programs and offerings, or result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii).

11.The ADA requires the Attorney General to conduct periodic compliance reviews of public accommodations. 42 U.S.C. § 12188(b)(1)(A)(i), 28 C.F.R. § 36.502(c).

12.The ADA authorizes the Attorney General to investigate any complaint alleging the Barter Foundation’s failure to provide full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations in an integrated setting to individuals with disabilities. 42 U.S.C. § 12188(b)(1)(A)(i). The ADA requires that the Department of Justice conduct periodic compliance reviews of public accommodations. 42 U.S.C. § 12188(b)(1)(A)(i) and 28 C.F.R. § 36.502(c).

13.The Attorney General is further authorized to commence a civil action in a United States district court if it is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. §§ 12188(b)(1)(B) and 12188(b)(2) and 28 C.F.R. §§ 36.503(a) and (b).

C. FINDINGS BY THE UNITED STATES

14.The United States, with the cooperation of the Barter Foundation, investigated AIC’s complaint. The United States conducted a compliance review of the Barter Theatre building and the structures and grounds of Stonewall Square, including the Barter Stage II, the Barter Café, the Barter Green, and the parking area serving these facilities, to assess their accessibility to individuals with disabilities under Title III and its implementing regulations, 28 C.F.R. Part 36.

15.The United States initially found that the Barter Foundation had failed to make the Barter Theatre building and the Stonewall Square facilities fully accessible to individuals with disabilities under Title III. For example, the United States found that the Barter Foundation had failed to implement means to ensure that people with disabilities have an equal opportunity to participate in and benefit from services, programs, and activities offered to others. Features that the United States alleged were not accessible included, but was not limited to the following: there was no exterior accessible route between the Stonewall Square facilities and the Barter Theatre building; the entrances to the Barter Stage II facility had thresholds that were too high and exterior slopes that were too steep; the force required to push or pull open the interior hinged doors to the men’s and women’s toilet rooms in the Barter Theatre building and Barter Stage II facilities exceeded the maximum allowable force; there were protruding objects throughout all facilities; there was no accessible toilet stall in the men’s toilet room in Barter Stage II; there was no accessible signage outside of all toilet rooms in the Barter Theatre building and Barter Stage II; there was no accessible route to the accessible seating in the Barter Theatre building; and the ramp to the Barter Theatre building was inaccessible to an individual who uses a wheelchair. Specifically, the United States identified the following violations under 28 C.F.R. §§ 36.402, 36.403, 36.406.

As noted in Paragraph 4 above, without admitting any allegation of a violation of the ADA, the Barter Foundation has remedied the alleged violations and its buildings and facilities are now in compliance with the ADA. The alleged violations are as follows:

16.Stonewall Square

Accessible Route

a.A new pedestrian walk was constructed with stairs connecting the Stonewall Square facilities with the site entrance located on the public sidewalk at the corner of Partington Place and Main Street. No accessible route was provided. This new walk also connects the parking lot on Stonewall Square that serves both Barter Stage II and Barter Theatre facilities with the public sidewalk leading to street crossings at the Barter Theatre on Main Street. See Standards §§ 4.1.2(1), 4.3.2(1).

Parking Area

b.The designated accessible parking spaces and the accompanying access aisles in the parking area serving Stonewall Square and the Barter Theatre building on Main Street were not level and had slopes that exceeded 2% (1:50). See Standards §§ 4.1.2(5), 4.6.3.

Brick Walkway

c.The brick walkway adjacent to the accessible parking space that is closest to Barter Stage II and the Café had a running slope exceeding 5.0% (1:20) and is a ramp. This ramp exceeded 6' in length and lacked handrails required for a slope of this distance. See Standards §§ 4.1.2(1), 4.8.1, 4.8.5.

d.A segment of the brick walkway connecting the accessible parking area to the planned accessible route exceeded 6' in length with a running slope of more than 5% (1:20). This ramp lacked the handrails required for a slope of this distance. See Standards §§ 4.1.2(2), 4.8.1, 4.8.5.

17.Barter Stage II

Barter Stage II Entrances

a.Both entrances that were required to be accessible were not, even though they were identified with the International Symbol of Accessibility.

i.The altered existing theater lobby entrance had a door with a threshold that exceeded ½ inch in height and an exterior landing that was not level, with slopes exceeding 2% (1:50) and with a portion that exceeded 5% (1:20). See Standards §§ 4.1.6(1)(h), 4.1.6(2), 4.13.6, 4.13.8.

ii.The Café addition entrance had a door with a threshold that exceeded ½ inch in height and an exterior landing that was not level (one row of brick pavers exceeded 5% (1:20) slope). See Standards §§ 4.1.3(8)(a)(i), 4.1.3(8)(d), 4.13.6, 4.13.8.

Barter Stage II Lobby

b.The ticket counter was mounted above the maximum height of 36 inches above the finished floor. No auxiliary counter or equivalent facilitation was provided. See Standards § 7.2(2).

c.No drinking fountain was provided for individuals who have difficulty bending and stooping. See Standards § 4.1.3(10)(a).

d.There was no accessible door to the theater. Neither of the double-door leaves to the theater entrance provided the required 32-inch minimum clear opening. See Standards. §§ 4.1.3(7)(b), 4.13.4.

Barter Stage II Theater

e.The aisle side seats had no removable or folding armrests. The removable seats in the wheelchair locations had to be unbolted and removed to access the seats provided with fold-up armrests. See Standards § 4.1.3(19)(a).

f.The vertical clearance beneath the stage light (in the Café side exit vestibule) was less than the minimum required height of 80 inches. See Standards §§ 4.1.3(2), 4.4.2, Fig. 8(a).

g.The vertical clearance beneath the ceiling light cover in the Café side exit vestibule was less than the minimum required height of 80 inches. See Standards §§ 4.1.3(2), 4.4.2, Fig. 8(a).

Barter Stage II Gift Shop

h.The wall-mounted clothing display racks were protruding objects. Racks were mounted between 27 and 80 inches above the finished floor with the leading edges protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

Barter Stage II Men’s Toilet Room

i.The entry door had a door closer and did not have the minimum required clearance of 48 inches from the door on the push side. See Standards §§ 4.1.3(7)(b)(c), 4.13.6, Fig. 25(c).

j.There was no accessible signage at the toilet room door. See Standards §§ 4.1.3(7)(b)(c), 4.1.3(16)(a), 4.30.4, 4.30.6.

k.The entry door required 7 lbs. of force to open and exceeded the maximum of 5 lbs. of force. See Standards §§ 4.1.3(7)(b)(c), 4.13.11(2)(b).

l.The paper towel dispenser was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

m.The paper towel dispenser control was mounted above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

n.The faucet had knob handles that require tight grasping and twisting of the wrist to operate. See Standards §§ 4.22.6, 4.19.5, 4.27.4.

o.The soap dispenser was mounted with its control exceeding the maximum height of 44 inches above the finished floor required for a forward reach over an obstruction. See Standards §§ 4.22.7, 4.27.3, 4.2.5, Fig 5(b).

p.The bottom edge of the mirror’s reflecting surface exceeded the maximum required height of 40 inches above the finished floor. See Standards §§ 4.22.6, 4.19.6.

q.The rim heights of both urinals were above the maximum required height of 17 inches and the flush controls exceeded the maximum required height of 44 inches above the finished floor. See Standards §§ 4.22.5, 4.18.2, 4.18.4.

Barter Stage II Men’s Toilet Room Accessible Stall:

r.The width of the toilet stall was less than the 60-inch minimum required for a standard stall. See Standards §§ 4.22.4, 4.17.3, Fig. 30(a).

s.The toilet centerline exceeded the required distance of 18 inches from the side wall. See Standards §§ 4.22.4, 4.17.3, Fig. 30(a).

t.No grab bar was provided on the wall behind the toilet. See Standards §§ 4.22.4, 4.17.6, Fig. 30(a) and (c).

u.There was no toilet paper dispenser mounted below the grab bar on the side wall. See Standards §§ 4.22.4, 4.17.3, Fig. 30(d).

v.The coat hook mounted on the toilet stall door was above the maximum height of 48 inches required for a forward reach. See Standards §§ 4.22.7, 4.27.3, 4.2.5, Fig. 5(a).

Barter Stage II Women’s Toilet Room

w.There was no accessible signage at the toilet room door. See Standards §§ 4.1.3(16)(a), 4.30.4, 4.30.6.

x.The entry door required 9 lbs. of force to open, and exceeded the maximum of 5 lbs. of force. See Standards §§ 4.1.3(7)(b), 4.1.3(7)(c), 4.13.11(2)(b).

y.The paper towel dispenser mounted on the wall to the right of the lavatories was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

Barter Stage II Women’s Toilet Room Accessible Stall

z.The flush valve control for the toilet was not located on the open side of the stall. See Standards §§ 4.22.4, 4.17.2, 4.16.5.

aa.The only toilet paper dispenser provided was located above the grab bar in a location that obstructed use of the bar. See Standards §§ 4.22.4, 4.17.3, Fig. 30(d).

bb.The coat hook mounted on the toilet stall door was above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

The Café

cc.The counter top overhang at both ends of the main service counter and constituted a protruding object. The counter was mounted between 27 and 80 inches above the finished floor with leading edges protruding more than 4 inches from the knee wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

dd.The lower portion of the service counter (where the cash register was located) was less than the minimum required length of 36 inches. See Standards § 7.2(1).

ee.The latch to release the fire extinguisher from the bracket was more than 54 inches above the finished floor, exceeding the maximum height required for a side reach. See Standards §§ 4.1.3(13), 4.27.3, 4.2.6, Fig. 6(b).

ff. The fire extinguisher was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the knee wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

gg.The controls of the self-serve soda fountain were too high for individuals who use wheelchairs. See 28 C.F.R. § 36.302(a).

hh.The leading edge of the self-serve soda fountain was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the face of the counter into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

Information Kiosks in The Barter Theatre and Barter Stage II

ii.“Milton’s Guide” Interactive Information Kiosk:

i.The touch screen is too high for individuals who use wheelchairs. See 28 C.F.R. § 36.302(a).

ii. Touch screen features needed to obtain information are not accessible to people who are blind or have low vision. See 28 C.F.R. §§ 36.303(a)-(c).

iii.The audio component is not accessible to people who are deaf or hard of hearing. See 28 C.F.R. §§ 36.303(a)-(c).

18.Ramp to the Barter Theatre

a.The running slope of the 1st ramp segment exceeded the maximum of 8.33% (1:12). See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.2, Fig. 16.

b.The first landing where the ramp changed direction was less than the minimum requirement of 60 inches by 60 inches. See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.4(3).

c.The clear width between handrails on each side of the third and fourth ramp segments was less than the minimum requirement of 36 inches. See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.3, Fig. 17.

d.The third landing where the ramp changes direction was less than the minimum requirement of 60 inches by 60 inches. See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.4(3).

e.The running slope of the fourth ramp segment exceeded the maximum requirement of 8.33% (1:12). See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.2, Fig. 16.

f.The cross sections of the handrails were not a shape equivalent to the required gripping surface. See Standards §§ 4.1.2(1), 4.3.2(1), 4.3.7, 4.8.5, 4.26.2, Fig. 39.

Barter Theatre

Barter Theatre Designated “Accessible” Entrance

g.The only designated accessible door to the theater lobby did not have the minimum required maneuvering clearance to the latch side on the pull side. See Standards §§ 4.1.3(7)(a), 4.13.6, Fig. 25(a).

Barter Theatre Lobby

h.The highest controls of the wall-mounted courtesy telephone exceeded the maximum required reach range of 54 inches for a side approach. See Standards §§ 4.1.3(17)(a), 4.31.3, 4.2.6, Fig. 6.

i.No drinking fountain was provided for individuals who have difficulty bending and stooping. See Standards § 4.1.3(10)(a).

Barter Theatre Men’s Toilet Room

j.There was no accessible signage at the toilet room door. See Standards §§ 4.1.3(16), 4.30.4, 4.30.6.

k.The entry door required 11 lbs. of force to open, and exceeded the maximum of 5 lbs. of force. See Standards §§ 4.1.3(7)(b)(c), 4.13.11(2)(b).

l.Both controls of the paper towel dispensers were mounted above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

m. The paper towel dispenser to the left of the lavatories was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

n.The soap dispenser exceeded the maximum required height of 44 inches for a forward reach over an obstruction (lavatory). See Standards §§ 4.22.7, 4.27.3, 4.2.5, Fig. 5(b).

o.The hot water supply valve for the accessible lavatory was not insulated or configured to protect against contact. See Standards §§ 4.22.6, 4.19.4.

p.The flush valve control for the accessible toilet was not located on the open side of the stall. See Standards §§ 4.22.4, 4.17.2, 4.16.5.

q.The coat hook in the accessible toilet stall was above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

Barter Theatre Women’s Toilet Room

r.There was no accessible signage at the toilet room door. See Standards §§ 4.1.3(16)(a), 4.30.4, 4.30.6.

s.The entry door required 12 lbs. of force to open exceeding the maximum of 5 lbs. of force. See Standards §§ 4.1.3(7)(b)(c), 4.13.11(2)(b).

t.Both controls of the paper towel dispensers were mounted above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

u.The paper towel dispenser mounted on the wall to the right of the lavatories was a protruding object. It was mounted between 27 and 80 inches above the finished floor with its leading edge protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

v.The coat hook in the accessible toilet stall was above the maximum height of 54 inches required for a side reach. See Standards §§ 4.22.7, 4.27.3, 4.2.6, Fig. 6(b).

Barter Theatre Gift Shop

w. None of the circulation routes to the sales and service counter provided the required minimum width for an accessible route. See Standards §§ 4.1.3(1), 4.3.2(3), 4.3.3, 7.2.

x.The sales and service counter (with the cash register) did not provide a portion that was at least 36 inches in length with a maximum height of 36 inches above the finished floor. See Standards § 7.2(1).

Barter Theatre Auditorium

y.Both wall-mounted light fixtures at the rear of the theater were mounted between 27 and 80 inches above the finished floor with the leading edge protruding more than 4 inches from the wall into the circulation path. See Standards §§ 4.1.3(2), 4.4.1, Fig. 8(a).

z.The entry ramp on the accessible route up to the right aisle did not have handrails on both sides. The cross section of the handrail provided did not have the required gripping surface. See Standards §§ 4.1.3(1), 4.3.2(2)(3), 4.8.1, 4.8.5, 4.26.2, Fig. 39.

aa.The theater has a total of 508 seats and did not have the minimum required six wheelchair locations. See Standards § 4.1.3(19)(a).

bb.The theater did not have the minimum number of five (5) seats with removable or folding armrests. The two seats with folding armrests did not have the required sign or marker. See Standards § 4.1.3(19)(a).

cc.No accessible route was provided to the wheelchair locations. The following barriers obstructed an accessible route. See Standards §§ 4.1.3(1), 4.3.2(2)(3), 4.33.3.

i.The landing at the top of the ramp to the wheelchair location at the rear of the theater was less than 60 inches deep. See Standards § 4.8.4(2).

ii. The wheelchair location at the front of the theater on the left side of the right aisle was on a raised wood floor surface. The transition between the accessible route at the carpet level and the raised wood floor was a ½ inch high with a bevel greater than the maximum required slope of 1:2. See Standards §§ 4.3.8, 4.5.2.

dd.The wheelchair location at the rear of the theater lacked a permanent companion seat. See Standards §§ 4.1.3(19)(a), 4.33.3.

ee.The wheelchair location at the front of the theater on the right side of the right aisle: this space straddled the raised wood and carpet floor surface and was not level. See Standards §§ 4.1.3(19)(a), 4.33.4.

ff. The wheelchair locations at the front of the theater on both sides of the left aisle: these spaces straddled the raised wood and carpet floor surfaces and were not level. See Standards §§ 4.1.3(19)(a), 4.33.4.

Exterior Staircase on East Side of Barter Theatre

gg.The underside of the exterior staircase was an overhead hazard to pedestrians who are blind or who have low vision. A portion of the staircase underside did not provide the minimum required vertical clearance of 80 inches. See Standards §§ 4.1.2(2), 4.4.2, Fig. 8(c-1).

D. TERMS OF AGREEMENT

19.In order to avoid potential litigation, the parties agree to the terms of this Settlement Agreement.

20.In consideration of the terms of this Agreement, and promises by the Barter Foundation, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters addressed by this Agreement except as provided in Section E.

21.The Barter Foundation shall continue to ensure that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the Barter Foundation’s goods, services and facilities. 42 U.S.C. § 12182(a).

22.The Barter Foundation shall continue to provide full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations in an integrated setting to individuals with disabilities. 42 U.S.C. § 12182(b)(1)(B).

23.The Barter Foundation shall continue to modify policies, practices, and procedures in order to afford access to services, programs, and facilities to individuals with disabilities, unless making such modifications would fundamentally alter the nature of such services, programs and facilities. 42 U.S.C. §§ 12182(a) and (b)(2)(A)(ii).

24.The Barter Foundation shall continue to ensure there are no architectural barriers in its existing facilities. 42 U.S.C. § 12182(b)(2)(A)(iv).

25.The Barter Foundation shall ensure that all newly constructed or altered buildings and facilities are readily accessible to, and usable, by individuals with disabilities as required by the ADA. 42 U.S.C. § 12183(a).

26.The Barter Foundation shall continue to ensure that the contents of its public programs and other offerings are accessible and effectively communicated to individuals with disabilities making, where necessary, appropriate auxiliary aids and services available to ensure effective communication to individuals who are deaf or hard of hearing, or who are blind or have low vision, unless taking such steps would fundamentally alter the nature of the content of public programs and offerings, or result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii).

27.The Barter Foundation shall continue to update its auxiliary aids and services to ensure that the content of its public programs and other offerings are accessible and effectively communicated to individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.

Specific Remedial Measures

The Barter Foundation agrees to continue to comply with the ADA. The Barter Foundation also agrees to ensure that no individual with a disability is discriminated against on the basis of disability, in the full and equal enjoyment of the Barter Foundation’s goods, services, and facilities and to make all its facilities readily accessible and usable to individuals with disabilities. The Barter Foundation agrees that its public programs and other offerings must be accessible and effectively communicated to individuals with disabilities. The remedial measures in this Agreement do not threaten or destroy the historic significance of any structure or facility identified in the Agreement. 28 C.F.R. § 36.405(b).

Without admitting any allegation of a violation of the ADA the Barter Foundation has completed the following remedial measures.

28.Stonewall Square

a.Accessible Route
Installed an accessible route that coincides with the pedestrian route to the maximum extent feasible. The new accessible route connects Barter Stage II, the Café and outdoor spaces on Stonewall Square with the public sidewalk leading to street crossings at the Barter Theatre on Main Street. See Standards §§ 4.1.2(1), 4.3.2(1).

b.Parking at Barter II
Provided level accessible parking spaces and access aisles with surface slopes that do not exceed 2% (1:50) in all directions. See Standards § 4.6.3.

c.Brick Walkway
Modified the segments of the walkway that are ramps to provide handrails that comply with the Standards. See Standards §§ 4.3.7, 4.8.5.

29.Barter Stage II

a.Barter Stage II Designated Accessible Entrance

i.The theater lobby entrance door was replaced with an accessible power operated door. See Standards §§ 4.13.6, 4.13.8.

ii.The Café entrance designated with the International Symbol of Accessibility has been modified with an accessible threshold and level landing. See Standards §§ 4.13.6, 4.13.8, 4.30.1, 4.30.2, 4.30.3, 4.30.5.

b.Barter Stage II Theater Lobby

i.An auxiliary counter of a maximum height of 36 inches was provided in close proximity to the inaccessible ticket counter. See Standards § 7.2(2).

ii. Replaced the existing drinking fountain with a “hi-lo” unit. See Standards § 4.1.3(10)(a).

c.Barter Stage II Theater

i.Provided two folding armrests on the aisle side seats with the required signs. See Standards § 4.1.3(19)(a).

ii.Relocated the stage light in the Café side exit vestibule to provide an 80 inches minimum vertical clearance. See Standards § 4.4.2, Fig 8(a).

iii. Replaced the cover of the ceiling light in the Café side exit vestibule to provide an 80 inches minimum vertical clearance. See Standards § 4.4.2, Fig. 8(a).

iv.For the purposes of this Agreement, the Barter Foundation will provide staff as needed to assist individuals with disabilities to open the door during performances. See Standards § 4.13.4.

d.The Café

i.Installed a permanent cane-detectable element at each end of the main service counter. See Standards § 4.4.1, Fig. 8(a).

ii.Provided a portion of the sales and service counter that is at least 36 inches long and no more than 36 inches above the finished floor. See Standards § 7.2(1).

iii.Lowered the self-serve soda fountain so that controls are no higher than 54 inches above the finished floor. See 28 C.F.R. § 36.302(a).

iv. Re-positioned the soda fountain so that it is not a protruding object. See Standards § 4.4.1, Fig. 8(a).

v.Removed the fire extinguisher which had a latch 54 inches above the finished floor and was a protruding object. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

e.Barter Stage II Gift Shop

Installed cane-detectable barriers to each side of the existing display racks. See Standards § 4.4.1, Fig. 8(a).

f.Barter Stage II Men’s Toilet Room

i.Reconfigured the alcove at the entry door to provide the minimum required clearances. See Standards § 4.13.6, Fig. 25(c).

ii. Provided an accessible sign with raised characters and Braille, the required finish and contrast, and mounted to the latch side of the door with its centerline at 60 inches above the finished floor. See Standards §§ 4.30.1, 4.30.4, 4.30.5, 4.30.6.

iii. Provided a permanent cane-detectable barrier beneath the paper towel dispenser. See Standards § 4.4.1, Fig. 8(a).

iv.Provided a paper towel dispenser with its highest control at no higher than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

v.Provided a faucet control that does not require tight grasping or twisting of the wrist. See Standards §§ 4.19.5, 4.27.4.

vi. Provided a soap dispenser with its control that is no more than 44 inches above the finished floor. See Standards §§ 4.27.3, 4.2.5, Fig. 5(b).

vii.Provided a mirror with the bottom edge of the reflecting surface at no more than 40 inches above the finished floor. See Standards § 4.19.6.

viii.  Provided a urinal with its rim at a maximum of 17 inches above the finished floor and its flush control at a maximum of 44 inches above the finished floor. See Standards §§ 4.18.2, 4.18.4.

ix.Provided an accessible toilet stall. See Standards § 4.17, Fig. 30.

g.Barter II Women’s Toilet Room

i.Provided an accessible sign with raised characters and Braille, the required finish and contrast, and mounted to the latch side of the door with its centerline at 60 inches above the finished floor. See Standards §§ 4.30.1, 4.30.4, 4.30.5, 4.30.6.

ii.Provided a permanent cane-detectable barrier beneath the paper towel dispenser to the right of the lavatories. See Standards § 4.4.1, Fig. 8 (a)

Barter II Women’s Toilet Room Accessible Stall:

iii. Provided a manual flush valve control that is located on the open side of the toilet. See Standards §§ 4.17.2, 4.16.5.

iv. Relocated the existing toilet paper dispenser below the grab bar so that it does not obstruct its use. See Standards §§ 4.17.3, Fig. 30(d).

v.Provided a coat hook in the accessible toilet stall that is no higher than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b)

h.Doors
Provided doors that require no more than 5 lbs. of force to push or pull open at the following locations:

i.Barter II Men’s Toilet Room. See Standards § 4.13.11(2)(b)

ii.Barter II Women’s Toilet Room. See Standards § 4.13.11(2)(b).

Information Kiosks in the Barter Theatre and Barter Stage II

i.“Milton’s Guide” Information Kiosks Located in the Barter Theatre and Barter Stage II
Provided the information on the touch screen in a printout and placed the printout at a location accessible to individuals who use wheelchairs. Provided a notice in Braille and print of the availability of assistance. See 28 C.F.R. § 36.302(a).

30.Barter Theatre

a.Barter Theatre Ramp
Modified existing ramp to comply with all of Section 4.8 Ramps, in the Standards. See Standards §§ 4.3.7, 4.8

b.Barter Theatre Designated “Accessible” Entrance
Installed a power door operator. See Standards § 4.13.6, Fig. 25(a).

c.Barter Theatre Lobby

i.Removed the courtesy telephone with controls higher than 54 inches above the finished floor. See Standards §§ 4.31.3, 4.2.6, Fig. 6.

ii.Replaced the existing drinking fountain with an accessible “hi-lo” unit. See Standards § 4.1.3(10)(a).

d.Barter Theatre Men’s Toilet Room

i.Provided an accessible sign with raised characters and Braille, the required finish and contrast, and mounted to the latch side of the door with its centerline at 60 inches above the finished floor. See Standards §§ 4.30.1, 4.30.4, 4.30.5, 4.30.6.

ii. Provided a permanent cane-detectable barrier beneath the paper towel dispenser to the left of the lavatories. See Standards § 4.4.1, Fig. 8(a).

iii.Provided a paper towel dispenser (to the left of the lavatories) with its control no higher than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

iv. Provided a soap dispenser with its control no higher than 44 inches above the finished floor. See Standards §§ 4.27.3, 4.2.5, Fig. 5(b).

v.Insulated the hot water valve for the lavatory to protect against contact. See Standards § 4.19.4.

vi. Provided a coat hook in the accessible toilet stall that is no more than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

vii.Provided a manual flush valve control that is located on the open side of the toilet. See Standards §§ 4.17.2, 4.16.5.

e.Barter Theatre Women’s Toilet Room

i.Provided an accessible sign with raised characters and Braille, the required finish and contrast, and mounted to the latch side of the door with its centerline at 60 inches above the finished floor. See Standards §§ 4.30.1, 4.30.4, 4.30.5, 4.30.6.

ii.Provided a permanent cane-detectable barrier beneath the paper towel dispenser to the left of the lavatories. See Standards § 4.4.1, Fig. 8(a).

iii.Provided a paper towel dispenser (to the right of the lavatories) with its control no higher than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

iv.Provided a coat hook in the accessible toilet stall that is no higher than 54 inches above the finished floor. See Standards §§ 4.27.3, 4.2.6, Fig. 6(b).

f.Provided doors that require no more than 5 lbs. of force to push or pull open at the following locations:

i.Barter Theatre Men’s Toilet Room. See Standards § 4.13.11(2)(b).

ii.Barter Theatre Women’s Toilet Room. See Standards § 4.13.11(2)(b).

g.Barter Theatre Auditorium

i.Provided permanent cane-detectable barriers beneath the wall-mounted light fixtures at the theater’s entrance. See Standards § 4.4.1, Fig. 8(a).

ii.Provided handrails on both sides of the ramp to the right side seating area with a shape and size equivalent to the required gripping surface. See Standards §§ 4.8.5, Fig. 17, 4.26.2, Fig. 39.

iii.Provided a minimum of six accessible wheelchair locations. See Standards §§ 4.1.3(19)(a), 4.33.

iv. Provided a minimum of five seats with folding armrests on the aisle side with the required signs. See Standards § 4.1.3(19)(a).

v.Reconfigured the seating and aisle area at the rear of the theater and eliminated the ramp to the wheelchair location. See Standards §§ 4.3.8, 4.8.4(2).

vi.Wheelchair location at the front of the theater on the left side of the right aisle: eliminated the transition between the carpet and the raised floor. See Standards §§ 4.3.8, 4.5.2.

vii.Wheelchair location at the front of the theater on the right side of the right aisle: Eliminated the level change in this space. See Standards §§ 4.33.2, 4.33.4.

viii. Wheelchair locations at the front of the theater on both sides of the left aisle: eliminated the level changes in these spaces. See Standards §§ 4.33.2, 4.33.4.

ix.Wheelchair location at the rear of the theater: reconfigured the wheelchair location to provide a permanent companion seat. See Standards § 4.33.3.

h.Barter Theatre Gift Shop

i.Rearranged the merchandise displays to provide an accessible route to the sales and service counter. See Standards § 4.3.3.

ii.Rearranged the merchandise displays on the sales and service counter to provide a portion that is at least 36 inches in length with a maximum height of 36 inches above the finished floor. See Standards § 7.2(1).

i.Exterior Staircase on East Side of Barter Theatre
Provided a permanent cane-detectable barrier beneath the exterior staircase. See Standards § 4.4.2, Fig. 8(c-1).

E. IMPLEMENTATION AND ENFORCEMENT

31.The United States shall have the right, during the course of this Agreement and with reasonable prior notice to the Barter Foundation to conduct inspections of the Barter Theatre building and the Stonewall Square facilities, including Barter Stage II, the Barter Café, Barter Green and the parking area and to request documents or photographs in order to evaluate compliance with this Agreement. The United States shall make every effort to conduct its inspections at times that are agreeable to the Barter Foundation so that there is minimal disruption to its operations resulting from such inspections. The United States acknowledges that The Barter Theatre and Stonewall Square facilities described in Paragraph 1 are currently in compliance with Title III of the ADA.

32.If the United States believes that the Barter Foundation is not in compliance with this Agreement or any of its requirements, the United States agrees to notify the Barter Foundation in writing of the alleged noncompliance and attempt to seek a resolution of the matter. If the parties are unable to reach a resolution within thirty days of the date of the United States’ written notification, the United States may seek enforcement of the terms of this Agreement in any United States District Court where jurisdiction and venue are proper. In the event the court determines that the Barter Foundation has failed to comply with any term of this Agreement, such failure to comply shall be treated as a second violation of the ADA, and the United States may seek, and the court may assess, civil penalties against the Foundation as provided in 42 U.S.C. § 12188(b)(2)(C). Alternatively, should the parties be unable to reach a resolution within thirty days of the date of the United States’ written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.

33.In consideration of, and consistent with, all the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding all matters addressed by this Agreement, except as provided in Paragraph 32.

34.The United States’ failure to enforce this entire Agreement or any provision with regard to any deadline or any other provision contained herein shall not be construed as a waiver by the United States of any right to do so.

35.This Agreement shall be binding upon the Barter Foundation and its agents and employees. In the event the Barter Foundation seeks to transfer or assign all or part of its interests in any structure or facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale, the Barter Foundation shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement.

36.All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax or overnight delivery to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):

1. For the Barter Foundation Incorporated:

Mr. Richard Rose
Producing Artistic Director
The Barter Theatre
P.O. Box 167
Abingdon, VA 24212-0867
(276) 619-3335 (Fax)

2.For the United States:

John L. Wodatch, Chief
Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202) 307-1198 (Fax)

37.This Agreement constitutes the entire Agreement between the parties relating to United States of Justice Case No. 202-80-33 on the matters raised herein, and no other statement, promise or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written Agreement shall be enforceable.

38.If any provision of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and the Barter Foundation shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.

39.This Agreement is limited to the Barter Foundation as described in Paragraph 2 above, and does not apply to any other design or construction project of or related to the Barter Foundation. It is limited to the matters described herein and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the Barter Foundation’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.

40.A signatory to this document in a representative capacity for a partnership, corporation, or other such entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.

41.The effective date of this Agreement is the date of the last signature below. The Agreement shall remain in effect for one year from the effective date, unless extended by agreement of the parties.

42.This agreement is in settlement of allegations made by the United States and nothing in this agreement shall constitute an admission of liability on the part of The Barter Foundation or any of its agents or employees.

 

For the Barter Foundation, Inc:


For the United States of America:
By______________________
Richard Rose
The Barter Theater
GRACE CHUNG BECKER
Acting Assistant Attorney General
Jeffrey A. Taylor
United States Attorney


By:____________________________


John L. Wodatch, Chief
Philip L. Breen, Special Legal Counsel
Eugenia Esch, Trial Attorney
Rex J. Pace, Architect
Disability Rights Section
U.S. Department of Justice
Washington, D.C. 20530
(202) 307-2227


Date           09/22/2008             Date           09/22/2008            

 


Oct 23, 2008