Settlement Agreement between

the United States of America

and

the Charlotte Regional Visitors Authority,

Regarding Ovens Auditorium,

Under Title II of the Americans with Disabilities Act

DJ 204-55-64


SCOPE OF THE INVESTIGATION

  1. This matter was initiated by a complaint filed with the United States Department of Justice, Civil Rights Division, Disability Rights Section (Department) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 - 12134, and the Department’s implementing regulation, 28 C.F.R. Part 35, against the Charlotte Regional Visitors Authority (CRVA) with respect to the Ovens Auditorium (Auditorium), located at 2700 East Independence Boulevard, in Charlotte, North Carolina. The complainants alleged that altered portions of the Auditorium were not readily accessible to and usable by individuals with disabilities.
  2. The Disability Rights Section of the Department’s Civil Rights Division reviewed the Ovens Auditorium for compliance with title II of the ADA and its implementing regulation, 28 C.F.R. Part 35, including the ADA Standards for Accessible Design (Standards), 28 C.F.R. Part 36 at Appendix A. As a result of this investigation, the Department has found that CRVA is in violation of the ADA.

JURISDICTION

  1. The Department is authorized under 28 C.F.R. Part 35, Subpart F, to investigate complaints of discrimination on the basis of disability by a public entity, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
  2. The Ovens Auditorium is owned and operated by the CRVA. The CRVA is an instrumentality of the City of Charlotte and, as such, is a “public entity” as defined in 28 C.F.R. § 35.104.
  3. The parties to this Agreement are the United States of America and the Charlotte Regional Visitors Authority.
  4. The parties have determined that Department of Justice complaint 204-55-64 can be resolved without litigation and have prepared and agreed to these terms of this Settlement Agreement.
  5. In consideration of, and consistent with, the terms of this Agreement, the United States Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled “Implementation and Enforcement.”

REMEDIAL ACTIONS

  1. The elements or features of the Ovens Auditorium that do not comply with the Standards prevent persons with disabilities from fully and equally enjoying the CRVA’s services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R.§ 35.149.
  2. The CRVA will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
  3. In order to ensure that the spaces and elements of Ovens Auditorium, for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the CRVA will take the following actions within 12 months of the effective date of this Agreement:
    1. Seating for wheelchair users: The auditorium, containing 2,457 seats, is not accessible to persons with disabilities because the current wheelchair seating locations are not dispersed among different price classes, the wheelchair seating locations do not offer lines of sight comparable to those available to members of the general public, and fifteen of the designated 25 wheelchair seating locations are reachable only by aisles with slopes exceeding 1:10. Provide a total of at least 25 wheelchair seating areas, each with a minimum clear ground or floor space of 33 inches wide by 48 inches deep for forward or rear access, or 33 inches wide by 60 inches deep for side access. Ensure that the ground or floor at all wheelchair locations is level, firm, stable, and slip resistant; that wheelchair seating areas are an integral part of the fixed seating plan and are located and dispersed so as to provide people with physical disabilities a choice of admission prices and lines ofsight comparable to those available for members of the general public; that wheelchair seating areas adjoin an accessible route that also serves as a means of egress in case of emergency; and that at least one fixed companion seat is provided next to each wheelchair seating area. Standards §§ 4.1.3(19)(a), 4.1.6(1)(b), 4.5, 4.33, Fig. 46.
    2. Lift along accessible route to seating for wheelchair users: Provide a lift that is on an accessible route from the auditorium entrance and along an accessible route to accessible wheelchair seating; has interior dimensions of at least 30 inches by 48 inches; facilitates unassisted entry, operation, and exit; has a floor surface that is firm, stable, and slip-resistant, or, if carpeted, has a carpet with a pile that is no more than 2 inch deep; and has a change of level at the entrance, if any, that is no more than 3 inch or no more than 2 inch and beveled 1:2. Ensure that the lift has operating controls that are located between 15 and 48 inches above the floor for a front approach or between 9 and 54 inches above the floor for a side approach; that are usable with one hand, do not require tight grasping, pinching, or twisting of the wrist to operate, and require no more than 5 pounds of force to operate. Standards §§ 4.1.3(5), 4.11. Maintain the lift in operable working condition, and, before the lift is operational, enter into and, thereafter, maintain a lift service contract that provides for prompt maintenance, including prompt emergency response in the event that a user is caught inside the lift and unable to exit. 28 C.F.R. § 35.133.
    3. Main (rear) parking lot by Crickets Arena: Although the main parking lot has a total of 1,400 parking spaces, including more than 24 with vertical signage designating them as reserved for persons with disabilities, three of the designated “van accessible” spaces are not on the shortest accessible route to the accessible entrance and have slopes exceeding 1:50 in all directions, and the remaining designated “accessible” spaces have spaces and access aisles located directly adjacent to traffic lanes. On the shortest accessible pedestrian route to the accessible entrance, provide 4 van accessible spaces and 20 standard spaces designated as reserved for people with disabilities. Ensure that standard accessible spaces are a minimum of 96 inches wide and served by access aisles at least 60 inches wide. Ensure that van accessible spaces are a minimum of 96 inches wide and served by access aisles at least 96 inches wide. At all spaces designated as reserved for persons with disabilities, provide vertical signs with the International Symbol of Accessibility located such that they cannot be obstructed by parked vehicles. At van accessible spaces, provide an additional “Van-Accessible” sign located below the International Symbol of Accessibility. Ensure that all spaces and access aisles for persons with disabilities are flat and level, with slopes and cross-slopes not exceeding 1:50 in all directions, and that their surfaces are firm, stable, and slip-resistant. Ensure that these spaces and access aisles, to the same extent as all other spaces, are physically separated from traffic lanes to ensure safety. Standards § 4.1.2(5), 4.1.6(1)(b), 4.6, 4.30.7(1).
    4. Single-user toilet room on main level
      1. There is insufficient clear floor space at the toilet to enable a person using a wheelchair to transfer. Provide clear floor space at the toilet that complies with Fig. 28. Standards §§ 4.1.3(11), 4.1.6(1)(b), 4.22.4, 4.16.2, Fig. 28.
      2. The toilet seat cover dispenser is mounted on the rear wall above the toilet and is out of reach range for a person using a wheelchair. Provide a toilet seat cover dispenser such that the controls comply with Fig. 5 for a forward reach or with Fig. 6 for a side reach and such that it is accompanied by clear floor space of 30 by 48 inches that allows a forward or parallel approach, respectively, by a person using a wheelchair. Standards §§ 4.1.3(13), 4.1.6(1)(b), 4.27.2, 4.27.3, 4.2.4, 4.2.5, 4.2.6.

IMPLEMENTATION AND ENFORCEMENT

  1. To document compliance with ADA requirements, CRVA shall submit evidence of completed modifications consisting of photographs, showing a tape measure, smart level, or other necessary equipment in the photos as appropriate, to document the width or height of a feature or the presence of a ramp, grab bar, sign, etc. The first report of actions taken to correct ADA violations shall be due within 6 months of the effective date of this Agreement, with additional reports due on or by the annual anniversary of the effective date of this Agreement for the life of this Agreement.
  2. If at any time the CRVA desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.
  3. The Department may review compliance with this Agreement at any time. If the Department believes that the CRVA has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the CRVA in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the CRVA, it may institute a civil action in federal district court to enforce the terms of this Agreement or title II and may, in such action, seek any relief available under law.
  4. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the CRVA to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
  5. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
  6. A copy of this document or any information contained in it will be made available to any person by the CRVA or the Department on request.
  7. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including any Attachments, which are hereby incorporated by reference), will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the CRVA’s continuing responsibility to comply with all aspects of the ADA.
  8. This Agreement will remain in effect for two years, or until the parties agree that all actions required by the Agreement have been completed, whichever is later.
  9. The person signing for the CRVA represents that he or she is authorized to bind the CRVA to this Agreement.
  10. The effective date of this Agreement is the date of the last signature below.

For the Charlotte Regional Visitors Authority:

TIM NEWMAN,
Chief Executive Officer

By:__________/s/___________
J. CAMERON FURR, JR.
Grier Furr & Crisp, P.A.
Attorneys at Law

 

For the United States:


THOMAS E. PEREZ,
Assistant Attorney General
Civil Rights Division

By:________________________________
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
JEANINE WORDEN, Deputy Chief
DOV LUTZKER, Special Counsel
JOSH MENDELSOHN, Attorney Advisor
MICHELE ANTONIO MALLOZZI, Architect
Disability Rights Section
Civil Rights Division - NYA
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 307-0663

 

Date:                   3/24/10                   Date:                  3/29/10                  

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April 6, 2010