UNITED STATES OF AMERICA,
BETTE BUS SHUTTLE, INC, aka
METRO SERVICES, INC.
OF MOSCOW, TN
Civil No. 03-2100-D
Based upon the stipulations of the parties:
1. On February 19, 2003, the United States of America filed this action pursuant to Title III of the Americans with Disabilities Act (hereinafter the ADA), 42 U.S.C. § 12181 et seq.
2. This action was brought to enforce Title III of the ADA against The Bette Bus Shuttle, Inc.. The Complaint alleges that the Defendant is in violation of Title III of the ADA, 42 U.S.C. §§ 12181-89, and the implementing regulations, 28 C.F.R. Part 36 and 49 C.F.R. Parts 37-38.
3. Florence Hall, an adult resident of the Western District of Tennessee, has a mobility impairment that substantially limits her ability to ambulate without the assistance of a wheelchair or engage in many other major life activities and is an individual with a disability within the meaning of the ADA.
4. Defendant The Bette Bus Shuttle, Inc., at the time of the filing of the Complaint, provided van transportation services to the public between Memphis, Tennessee, and the Little Rock, Arkansas, airport, making three scheduled trips daily. The Bette Bus Shuttle, Inc. was a private entity primarily engaged in the business of transporting people, whose operations affect commerce and which provided specific public transportation services within the meaning of 42 U.S.C. § 12184(a) and 49 C.F.R. pt. 37. The transportation services provided by The Bette Bus Shuttle, Inc. between Memphis, Tennessee, and the Little Rock, Arkansas airport constituted a fixed route system within the meaning of 42 U.S.C. § 12184(b)(3) and 49 C.F.R. pt. 37.
5. Since the filing of the complaint, Defendant the Bette Bus Shuttle, Inc. began operating as Metro Services, Inc. of Moscow, TN (collectively the Defendants). Defendants have entered into contracts with Managed Care Organizations serving Tenncare eligible persons to provide transportation services to and from the offices of medical service providers. This transportation service constitutes a demand responsive system within the meaning of 42 U.S.C. § 12184(b)(3) and 49 C.F.R. pt. 37. Defendants continue to provide fixed route service from Memphis, Tennessee to the Little Rock, Arkansas airport.
6. Just prior to June 2, 2001, Ms. Florence Hall called the Defendant The Bette Bus Shuttle, Inc. and made reservations to travel from Memphis to the Little Rock airport on June 2, 2001. When Ms. Hall met the Bette Bus van, it became apparent that the van was not equipped with a lift to board a passenger using a wheelchair. Ms. Hall was advised by employees of the defendant that they would assist her in boarding the van, without her wheelchair, but that they would not transport her motorized wheelchair. Because of the urgency of her travel plans she reluctantly left her wheelchair at home and boarded the van. During her stay in Texas, Ms. Hall used a manual wheelchair procured by her daughter.
7. The Defendants leased one 15-passenger van in 1996, one 15-passenger van in 1998, and four 15-passenger vans in 2001. None of the vans leased by the defendants were equipped with a level change mechanism or boarding device complying with the specifications of 49 C.F.R. § 37.103 and § 37.23.
Accordingly, by consent of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED that:
8. This Court has jurisdiction of this action pursuant to 42 U.S.C. § 12182 et seq. And 42 U.S.C. §§ 1331 and 1345.
9. Within 30 days of the date of the entry of this decree:
a. The Defendants shall install a level change mechanism or boarding device and other equipment to ensure compliance with the specifications found at 49 C.F.R. §38.23 in at least one of their operating vans.
b. The Defendants shall adopt and implement a written policy of providing non-discriminatory service to persons with mobility impairments, including persons who use wheelchairs, in accordance with 49 C.F.R. §37.5 and 28 C.F.R. §§36.301-36.306. The policy shall provide that the Defendants will transport the wheelchairs or other mobility devices of individuals with disabilities and provide assistance with securement and lifts, in accordance with 49 C.F.R. §37.165. The policy shall also provide that in assisting customers with making reservations, the Defendants personnel shall make a specific inquiry into whether the customer needs the services of an accessible van, and if so, shall ensure that the customer receives the services requested.
The policy shall include provisions for prompt maintenance of lift equipment and securement devices, and it shall require daily testing of the equipment to ensure proper operation. In addition the policy shall provide that until all of the Defendants vans are readily accessible to and usable by persons with disabilities, including persons who use wheelchairs and other mobility devices, the Defendants will have contracts with outside entities to provide accessible vehicles on any day that no accessible vans are in operation due to the need for servicing or repairs. Defendants will ensure that these contracts provide equivalent service within the meaning of 49 C.F.R. § 37.105.
c. Defendants shall ensure that all of their personnel are trained to proficiency to comply with this consent order, carry out the Defendants written policies with respect to the provision of services to individuals with disabilities, properly use lift and securement devices, properly maintain lift and securement devices, and to otherwise assist and treat individuals with disabilities who use the service in a respectful and courteous manner, in accordance with 49 C.F.R. §37.173.
d. In any written material advertising their services, Defendants shall include a statement that their services are accessible to individuals using wheelchairs or other mobility devices and shall provide contact information for obtaining accessible service and registering complaints about accessible services to a responsible employee of the Defendants and to the Department of Justice.
10. The Defendants shall ensure that any vehicles purchased or leased after the date of the entry of this decree are readily accessible to and usable by persons with disabilities, including persons who use wheelchairs, in accordance with 49 C.F.R. Part 38, Subpart B, unless the provisions of paragraph 12 apply.
11. The defendant shall ensure that by not later than January 1, 2006, all vehicles acquired prior to the entry of this consent decree and which remain in service are made readily accessible to and usable by persons with disabilities, including persons who use wheelchairs, in accordance with 49 C.F.R. Part 38, Subpart B, unless the provisions of paragraph 12 apply.
12. For so long as the defendant continues to provide only demand responsive transportation services, as defined in 49 C.F.R. § 37.3, defendant will ensure that its system, when viewed in it's entirety, provides "equivalen service," within the meaning of 49 C.F.R. § 37.105, and defendant will ensure that it complies with 49 C.F.R. § § 37.101 and 37.105 when it purchases or leases a new vehicle covered by those provisions.
13. The defendant shall maintain a log of all customer requests for wheelchair accessible transportation services listing the customers name, telephone number and address, the date the customer makes the request, the date the transportation services are needed, and the method used to accommodate the customer. This log shall be made available to the United States Attorney for inspection at reasonable times and places while this consent order remains in effect.
14. The defendant shall, within ninety (90) days of the entry of this Decree, pay to Florence Hall the sum of ONE THOUSAND DOLLARS ($1,000.00). This payment shall be made by certified check payable to Florence Hall and delivered to the United States Attorneys Office for transmission to Ms. Hall. This payment shall be deemed to be a full and complete settlement of all claims of Florence Hall.
15. The defendant shall, within ninety (90) days of the entry of this Decree, pay to the United States of America a civil penalty in the amount of FIVE HUNDRED DOLLARS ($500.00). This payment shall be made by certified check and mailed to the following address: United States Attorneys Office, Financial Litigation Unit, Suite 810, 200 Jefferson Avenue, Memphis, TN 38103.
16. Violation of this Consent Decree shall constitute a subsequent violation within the meaning of 42 U.S.C. § 12188(h)(2)(c). If the Court makes a determination of a violation of this Consent Decree, the court may award damages to any person aggrieved by the violation and impose an appropriate civil penalty. Failure by the plaintiff to seek enforcement of this Decree with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of the Decree. Should new disputes arise between the parties involving other than the fulfillment of the terms of this Decree, those disputes are independent matters which must be presented to the appropriate administrative or judicial forum.
17. Nothing in this Consent Decree is intended to constitute an interpretation of the legal requirements of the ADA by the United States. Likewise the entry of this Consent Decree shall not constitute admission of liability or fault on the part of the Defendant. Rather, this agreement is entered into by the parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. This agreement shall not be used or introduced into evidence in any other case or proceeding other than between the parties to this Consent Decree. This Consent Decree is final and binding on all parties, principals, agents, and successors in interest of same.
18. The Court shall retain jurisdiction of this action to enforce the provisions of this Decree. Further, should litigation be necessary to enforce the terms of this Decree, all parties agree to the jurisdiction and venue of the United States District Court for the Western District of Tennessee.
19. There are no other terms to this Decree.
20. This Consent Order shall remain in effect for three (3) years after the date of its entry.
21. The United States complaint against the defendant shall be dismiss with prejudice except that the United States may petition the Court, at any time during the duration of this order, to reopen the case for the purpose of enforcing the order, and this Court shall retain jurisdiction to enforce this order. The parties to this order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this order prior to bringing such matters to the court for resolution.
Entered and Ordered this 23 Day of April , 2004.
Agreed and Consented to:
TERRY L. HARRIS
United States Attorney
Gary A. Vanasek (BPR 4675)
Assistant U.S. Attorney
Suite 800, 167 N. Main Street
Memphis, TN 38103
FOR THE BETTE BSU SHUTTLE , INC.
aka METRO SERVICES INC. OF MOSCOW, TN.
Stephen G. Beem
Pierotti, Beem & Riggs
Suite 3201, 100 N. Main Street
Memphis, TN 38103
Fayc James, President
Metro Services, Inc. of Moscow, Tn.
James Bolaus, Board Member
Metro Services, Inc. of Moscow, Tn.
Bobby Moma, Board Member
Metro Services, Inc. of Moscow, Tn.
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February 24, 2005