BACKGROUND1.This matter was initiated by a complaint filed under title III of the American with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (the Department) against Little General Store, Inc., specifically its Store 205 located at Route 12, Alderson, West Virginia. Department of Justice complaint number 202-84-5 alleges that Little General Store, Inc., has failed to remove architectural barriers to access where doing so is readily achievable and that many of its stores do not comply with title III and its implementing regulation. The Departments investigation of the complaint has confirmed these allegations. The Department expanded its investigation to include 48 Little General Stores.
2. The Attorney General is authorized to enforce title III of the ADA by seeking the alteration of facilities to make such facilities readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12188(a)(2). In addition, the Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. Id. at §12188(b)(1)(B).
3. Little General Store, Inc., owns and operates 48 retail stores, including Store 205, and as such, is a public accommodation covered by title III of the ADA. 42 U.S.C. §12181(7)(A). Little General Store, Inc., which is incorporated under the laws of the State of West Virginia, with its principle place of business or corporate office in the State of West Virginia. Eighteen of its stores were constructed before the ADAs effective date and 32 stores were constructed after the ADAs effective or have been altered since.
4. Little General Store, Inc., agrees to undertake barrier removal, as outlined in this settlement agreement, to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy its goods and services. In light of this agreement, the parties have determined that Department of Justice complaint 202-84-5 can be resolved without litigation and have prepared and agreed to the terms of this settlement agreement.
5. The complainant and her son stopped at Little General Store 205 for gas and to use the toilet room facilities; however, the son was unable to take his wheelchair into the toilet room because there were steps with no means of wheelchair access to the toilet rooms entrance. The complainant filed a complaint with the Department dated February 25, 1998.
6. On August 7, 2003, Little General Store, Inc., submitted documents to the Department indicating that 18 out of 48 stores have architectural barriers within the meaning of 42 U.S.C. § 12182(b)(2)(A)(iv) and 28 C.F.R. § 36.304.
7. Specifically, stores numbered 105; 203; 205; 210; 211; 233; 260; 290; 408; 506; 804; 805; 806; 5120; 5180; 5195; 5225; and the 3604 Robert C. Byrd Drive, Beckley, WV locations have numerous architectural barriers within the meaning of 42 U.S.C. § 12182(b)(2)(A)(iv) and 28 C.F.R. § 36.304.
8. The barriers to access listed in paragraph 7 above are not necessarily a complete list of barriers to access or any other ADA violations at any of the establishments owned and operated by Little General Store, Inc.
9. Stores Identified as Accessible by Little General Store, Inc.
A. On August 7, 2003, representatives of Little General Store, Inc., submitted documents to the Department indicating that 30 out of 48 stores comply with title III and its implementing regulation, including the Standards for Accessible Design (ADA Standards), 28 C.F.R. pt. 36 App. A. Specifically, Little General Store, Inc., alleges that stores numbered 102; 104; 108; 144; 201; 202; 212; 250; 270; 275; 401; 502; 505; 507; 509; 510; 600; 602; 801; 802; 803; 807; 808; 5133; 5150; 5165; 5210; the 125 Odd Road, Ghent, WV store; the 4223 Robert C. Byrd Drive, Beckley, WV store; and the 4243 Robert C. Byrd Drive, Beckley, WV, store are in compliance with the ADA.
B. Within 18 months of the effective date of this Agreement, Little General Store, Inc., will submit clear and detailed drawings and photographs of the elements of each store listed in paragraph 9.A. above, including accessible parking, an accessible route to an accessible entrance, the entryway(s), accessible public toilet rooms, accessible service / cashier counters, and accessible interior routes through retail aisles, in order to demonstrate that the above stores do comply with the ADA.
C. The Department will review the documentation submitted under paragraph 9.B. for conformity to the ADA Standards, and will direct Little General Store, Inc., to make specific modifications, as necessary, to bring these stores into full compliance within a time frame agreed to by the parties, which time frame shall not exceed 1 year from the date on which the Department issues its directions.
10. Within three years of the effective date of this agreement, Little General Store, Inc., will take the following actions at a minimum by removing barriers to access where such removal is readily achievable in those stores out of the remaining 17 that were constructed before and have not been altered since the ADA's effective date. Similarly, Little General Stores, Inc., will make modifications to those stores out of the remaining 17 that were constructed and/or altered after the ADA's effective date so that they fully comply with the Standards to the maximum extent feasible:
A. Establish an appropriate number of designated accessible parking spaces, including at least one van-accessible space, that are in compliance with the Standards and are located on the shortest accessible route to the accessible entrance of the building. §§ 4.1.2(5), 4.6.
B. Provide accessible routes to the designated accessible doors that have a change in level no greater than 1/2 inch and beveled with a slope no greater than 1:2, that are at least 36 inches wide, with a minimum maneuvering clearance at the doors as shown in Fig. 25 or install an automatic door opener. §§ 4.3.3, 4.3.8, 4.3.9, 4.5.2, 4.13.6, 4.13.12 & Fig. 25.
C. Provide doors that have a minimum clear opening of 32 inches measured from the face of the door to the opposite door stop with the door open 90 degrees, and so that the force required to open the door is not more than 5 pounds, if the door is not an exterior door. Provide hardware that is easy to grasp with one hand and does not require tight grasping, pinching, or twisting of the wrist to operate. §§ 4.13.5, 4.13.9, 4.13.11(2)(b).
D. Modify the mens and womens toilet rooms so that the spaces and elements in each room, including the room identification signage, entry door, clear floor space, turning space, accessible route, water closet, grab bars, urinal (mens only, if provided), lavatory, mirror, controls and dispensers, and signage comply with the Standards. §§ 4.22, 4.2, 4.3, 4.13, 4.16 and Figs. 28 & 29, 4.18, 4.19 and Figs. 31 & 32, 4.26, 4.27, 4.30.
E. Provide a counter that is at least 36 inches wide and no more than 36 inches high, § 7.2(1); or provide access to services transacted at this counter through alternate means (e.g., by offering these services at an accessible location within the same store for individuals who use wheelchairs).
F. Establish and maintain accessible routes from the entrance to all common aisles so that the minimum clear width between display racks is at least 36 inches. § 4.3.3.
11. In addition to any specific requirements in this Agreement to maintain accessible spaces features, Little General Store, Inc., will ensure that all accessible spaces and features are maintained in operable working condition, within the meaning of 28 C.F.R. § 36.211.
12. Within 30 days of the effective date of this Agreement, Little General Store, Inc., will transmit to the complainant a check in the amount of $3,000.00, payable to the complainant, as compensatory damages for the ADA violations described in this Agreement and shall transmit a copy of this check and its cover transmittal communication to the Department.
13. The Department of Justice may review compliance with this agreement at any time. If the Department believes that this agreement or any of its requirement has been violated, it may institute a civil action in federal district court to enforce this agreement or the requirements of the title III, following written notice to Little General Store, Inc., of possible violations and a period of 10 days in which Little General Store, Inc., has the opportunity to cure the alleged violations.
14. Failure by the Department to enforce this entire agreement or any of its provisions or deadlines shall not be construed as a waiver of the Departments right to enforce other deadlines and provisions of this agreement.
15. This agreement shall be binging on Little General Store, Inc., and its successors in interest. Little General Store, Inc., has a duty to notify all such successors in interest of this agreement and the duties and responsibilities it imposes on it.
16. This agreement is a public agreement. A copy of this document or any information contained in it shall be made available to any person by Little General Store, Inc., or the Department upon request.
17. The effective date of this agreement is the date of the last signature below.
18. 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, will be enforceable under its provisions.
19. This agreement is limited to the facts set forth above and does not purport to remedy any other potential violations of the ADA or any other Federal law.
20. This agreement does not affect the continuing responsibility of Little General Store, Inc., to comply with all aspects of title III of the ADA. In particular, the title III obligation to remove barriers to access for people with disabilities where that is readily achievable is a continuing obligation. It must be continuously re-visited, particularly where the financial resources available to a public accommodation may improve over time.
21. This agreement will remain in effect for four years from the effective date of this agreement or until the parties agree that full compliance with this agreement by Little General Store, Inc., has been achieved.
22. The person signing this document for Little General Store, Inc., represents that he is authorized to bind Little General Store, Inc., to this agreement.
FOR LITTLE GENERAL STORE, INC,: FOR THE UNITED STATES:
GREG DARBY, President
Little General Store, Inc.
3849 Robert C. Byrd Drive
Beckley, West Virgina 25801
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
MARY LOU MOBLEY, Acting Deputy Chief
JOSH MENDELSOHN, Supervising Attorney
NATALIE SINICROPE, Investigator
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue., N.W.
Disability Rights Section - NYA
Washington , DC 20530
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March 25, 2004