UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
v. 11 Civ. ________________
TOWNE REALTY, INC. AND
THE RIVERSIDE THEATER
WHEREAS, Plaintiff United States of America (“United States”) has filed a complaint against Towne Realty, Inc., and The Riverside Theater Foundation, as owners and operators of The Riverside Theater in Milwaukee, Wisconsin (collectively the “Defendants”), to redress violations of Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., and its implementing regulations, 28 C.F.R. Part 36;
WHEREAS, the United States Department of Justice is the federal agency that is responsible for investigating and enforcing proceedings in federal court for violations, or suspected violations, of Title III of the ADA, 42 U.S.C. § 12188(b) and 28 C.F.R. §§ 36.502 and 36.503, including the ADA Standards for Accessible Design found at 28 C.F.R. pt. 36, App. A (“the Standards”);
WHEREAS, the Riverside Theater is a “place of public accommodation” within the meaning of Title III of the ADA because it is a theater, concert hall, or auditorium 42. U.S.C. § 12181(7)(C) and (D) and 28 C.F.R. § 36.104, and both Towne Realty, Inc., as the owner, and the Riverside Theater Foundation, as the operator, are public accommodations within the meaning of the ADA and are therefore covered by Title III, 42 U.S.C. 12182(a); 28 C.F.R. §§ 36.104 and 36.201(a);
WHEREAS, the United States alleges that the defendants have discriminated, and continue to discriminate, against individuals with disabilities in the full and equal enjoyment of the goods, services, benefits and facilities of the Riverside Theater by having made alterations that are not readily accessible to and usable by individuals with disabilities to the maximum extent feasible, having failed to make the path of travel to the altered areas of the theater accessible to the extent that the cost of doing so is not disproportionate to the cost of the alterations, having failed to remove architectural barriers where it was readily achievable, and having failed to reasonably modify policies, practices, and procedures to make the goods and services offered at the Riverside Theater accessible to individuals with disabilities;
WHEREAS, the United States alleges it is entitled to seek injunctive relief in a judicial action, including but not limited to, an order requiring the Defendants to comply with the ADA;
WHEREAS, Towne Realty, Inc., and the Riverside Theater Foundation deny that they have violated the ADA with respect to the Riverside Theater;
WHEREAS, the parties agree that settlement of the claims of the United States without further litigation is in the public interest and that entry of this Consent Decree is an appropriate means of resolving this matter; and
WHEREAS, the parties agree that the settlement and entry of this Consent Decree does not constitute an admission of liability or wrongdoing by the Defendants, but is intended solely to settle all claims asserted by the United States against the Defendants on the terms set forth herein.
NOW, THEREFORE, upon consent and agreement of the United States, Towne Realty, and the Riverside Theater Foundation, and the Court having considered the matter and been dully advised,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
I. JURISDICTION AND VENUE
- This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. § § 1331 and 1345. The Defendants consent to, and shall not challenge entry of, this Consent Decree and the Court’s jurisdiction to enter and enforce this Consent Decree.
- Venue properly lies in this District pursuant to 28 U.S.C. § 1391(b).
II. SPECIFIC RELIEF
- No later than September 1, 2011, the Defendants shall make the following modifications to the seating in the performance area of the theater:
- The Defendants shall create ten wheelchair and ten companion seats at Row JJ as set forth in Attachment B to this Consent Decree; specifically, three wheelchair and three companion seats at house right, four wheelchair and four companion seats at house center left, and three wheelchair and companion seats at house left;
- The Defendants shall create six wheelchair and six companion seats at Row N as set forth in Attachment B to this Consent Decree; specifically, three wheelchair and three companion seats at house right and three wheelchair and three companion seats at house left;
- The Defendants shall install two wheelchair and two companion seats in Row A as set forth in Attachment A to this Consent Decree; specifically, one wheelchair and one companion seat at house center right and one wheelchair and companion seat at house center left. The wheelchair and companion seats in Row A shall be available for patrons who use wheelchairs when the remaining seats in this area have not been removed to accommodate performance requirements.
- The Defendants shall install permanent platforms to accommodate the wheelchair and companion seats in Rows JJ and N as set forth in Attachment B and in conformance with the Standards, §§ 4.33.2, 4.33.3, and 4.33.4.
- The Defendants shall ensure that each of the wheelchair spaces and the companion seats comply with Attachments A and B and with the size and surface requirements set forth in the Standards, §§ 4.33.2 and 4.33.4 and Figure 46.
- No later than September 1, 2011, the Defendants shall modify the far left aisle to the seats in the house left section of the performance area to achieve a slope on that aisle to as close to 12% as is technically feasible and in conformance with Attachment B.
- No later than September 1, 2011, the Defendants shall install handrails on the far right and far left aisles in any area where the slope of the aisle is greater than five (5) percent in conformance with Attachment B. (Standards § 4.8.5).
- The Defendants have modified the unisex toilet room to provide: a) a visual alarm (Standards § 4.1.3(14)); b) accessible toilet paper dispensers (Standards § 4.16.6 and Figure 29(b)); c) a mirror that is forty (40) inches above the finished floor to bottom of reflecting surface (Standards § 4.19.6 and Figure 31); and d) a side grab bar positioned at least twelve (12) inches from the rear wall and which does not have any obstructions within eighteen (18) inches of the top of the bar (Standards §§ 4.16.4, 4.26, Figures 29 and 39) Said modifications have been accepted by the United States.
- No later than September 1, 2011, the Defendants shall provide permanent room signage at the following locations in conformance with Attachment C to this Consent Decree:
- At the unisex toilet (Standards,§ 4.1.3(16)(a) and §§ 4.30.4 through 7);
- Directional signage at all inaccessible toilet rooms (Standards, §§ 4.1.3(16)(b), 4.1.6(3)(e)(iii) and §§ 4.30.2, 4.30.3, 4.30.5, and 4.30.7); and
- Directional signage at the accessible auditorium entrances and on the route to accessible wheelchair seating. (Standards §§ 4.1.2(7)(c), 4.1.3(16)(b), and 4.30.2, 3, 5 and 7).
- The Defendants have provided at least one accessible concession stand on the main level (Standards §7.2(1)) which has been accepted by the United States.
- No later than September 1, 2011, the Defendants shall promulgate and maintain the ticketing policy attached as Attachment D to this Consent Decree.
- No later than September 1, 2011, the Defendants shall include the following information on the website for the Riverside Theater:
- Accessible seating is available at the Riverside Theater;
- A diagram of the locations of the wheelchair accessible seats, the seats with removable arm rests, and the companion seats;
- A statement that the slope of the route to the accessible seats in row N is 12% at some locations and may be difficult to traverse for those who use manual wheelchairs.
- A statement that the route to the accessible seats in row A (if available) is 12% or greater and may require assistance from trained theater staff.
- No later than September 1, 2011, the Defendants shall install visual fire alarms at the following locations in the Riverside in conformance with Attachment E to this Consent Decree:
- Basement: men’s, women’s, and unisex toilet rooms;
- Lobby level: inner and outer lobbies;
- Performance area: in the locations of the current audible alarms;
- Public areas on the mezzanine levels: corridors, lobbies, and toilet rooms (Standards, §§ 4.1.3(14), 4.28.1, and 4.28.3).
- The defendants have provided construction drawings of the proposed changes contained in Attachments A, B, C, and E to the United States. Those attachments have been reviewed and approved by the United States as a compromise of the allegations set forth in the preamble to this Consent Decree.
- No later than three months after the date the work described in Paragraphs 3 through 8 and Paragraph 11 is completed pursuant to this Consent Decree, the Defendants shall provide the United States with a detailed written report, including photographs and any necessary measurements, that demonstrate compliance with the provisions of the Consent Decree. The report is designed to assess compliance with Paragraphs 3 through 8 and Paragraph 11 of the Consent Decree and do not need to address the policies and practices that have been reviewed by the United States and are covered by the Consent Decree. If the United States has any concerns over compliance with the Consent Decree based upon this report, it shall notify the defendants within sixty (60) days of receipt of the report and any such dispute shall be resolved under Section III of the Consent Decree.
III. DISPUTE RESOLUTION
- Upon reasonable notice to the Defendants, the Defendants shall permit the United States and any person acting on its behalf unrestricted access to The Riverside to review compliance with this Consent Decree. If the United States believes that the Defendants have violated this Consent Decree, the United States will notify the Defendants in writing and seek to resolve the matter pursuant to the following dispute resolution procedures.
- The dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. However, the procedures set forth in this Section shall not apply to actions by the United States to enforce the obligations of the Defendants under this Consent Decree that the Defendants have not timely disputed in accordance with this Section.
- Any dispute which arises under or with respect to this Consent Decree shall in the first instance be the subject of informal negotiations between the parties. The period for informal negotiations shall not exceed thirty (30) days from the time the dispute arises, unless it is modified by written agreement of the parties. The dispute shall be considered to have arisen when one party sends the other party a written Notice of Dispute.
- If the Parties are not in agreement at the end of this informal negotiations period, the position of the United States shall be controlling unless the Defendants file a petition with the Court for resolution of the dispute within twenty-one (21) days of receipt of the United States’ final position. The petition shall set out the nature of the dispute with a proposal for its resolution. The United States shall have twenty-one (21) days to file a response with an alternate proposal for resolution.
- The invocation of formal dispute resolution procedures under this Section shall not extend, postpone, or affect any obligation of the Defendants under this Consent Decree not directly in dispute, unless the United States or the Court agrees otherwise.
IV. OTHER PROVISIONS
- In consideration of, and consistent with, the terms of this Consent Decree, the United States agrees to refrain from undertaking further investigation into or pursuing further legal proceedings regarding all matters contained within this Consent Decree.
- This Consent Decree shall remain in effect for 120 days from the date of the report as provided for in Paragraph 13 above. The Court shall retain jurisdiction for the duration of the Consent Decree, after which time the case shall be dismissed with prejudice. Any party may apply to the Court for such further orders as may be necessary for, or consistent with, the enforcement of this Consent Decree.
- This Consent Decree, including Attachments A through E, constitutes the entire agreement by the United States and the Defendants and no other statement, promise, or agreement, either written or oral, made by any party of agents of any party, that is not contained within this Consent Decree shall be enforceable regarding all matters raised in the Consent Decree.
- This Consent Decree is final and has binding effect on the parties, including all principles, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, assigns, and legal representatives thereof. In the event that Towne Realty, Inc., or the Riverside Theater Foundation seek to transfer or assign all or part of its interest in the Riverside Theater, and the successor or assignee intends on carrying on the same or a similar use of the facility, as a condition or the lease or sale, the parties shall obtain the written accession of the successor or assignee to any obligations remaining under this Consent Decree for its term.
- Failure by the United States to seek enforcement of any provision of this Consent Decree shall not be construed as a waiver of its right to seek enforcement with regard to other provisions of this Consent Decree.
- This Consent Decree does not affect the duty of the parties to comply with the provisions of the ADA or any other law except as set forth in this Consent Decree, nor does this Consent Decree constitute a finding that the Defendants are in compliance with the ADA, except as it relates to those items set forth in this Consent Decree.
- A violation of this Consent Decree shall be deemed a subsequent violation of the ADA under 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3).
- If any provision of this Consent Decree is determined by any Court to be unenforceable, the other terms of this Decree shall remain in full force and effect, provided, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States, Towne Realty, Inc., and the Riverside Theater Foundation shall engage in good faith negotiations to adopt any amendments as may be necessary to restore the parties to the initially agreed upon rights and obligations of this Decree.
- The undersigned representatives of the parties certify that they are authorized to enter into and consent to the terms of this Consent Decree and to execute and legally bind the parties to it.
|Dated: March 1, 2011
|| THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
Deputy Assistant Attorney General
Civil Rights Division, Department of Justice
JAMES L. SANTELLE
United States Attorney
STACY C. GERBER WARD
LENNIE A. LEHMAN
Assistant United States Attorneys
Eastern District of Wisconsin
517 E. Wisconsin Ave.
Milwaukee, WI 53202
Facsimile: (414) 297-4394
Gerber Ward State Bar No. 1022067
Lehman State Bar No. 1014711
|Dated: February 15, 2011
EVERETT WOOD LAW OFFICE SC
EVERETT E. WOOD
Attorney for Towne Realty, Inc. and the Riverside
1239 State Rd. 175
Hubertus, WI 53033
Facsimile: (262) 628-9693
State Bar No. 1019586
|Dated: February 11, 2011
Towne Realty, Inc.
|Dated: February 14, 2011
The Riverside Theater Foundation
So entered in accordance with the forgoing this 5th day of May, 2011.
DISTRICT COURT JUDGE
EASTERN DISTRICT OF WISCONSIN
August 29, 2011