SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND WALLACE THEATER CORPORATION REGARDING ITS WHARF CINEMAS,

UNDER THE AMERICANS WITH DISABILITIES ACT

IN DEPARTMENT OF JUSTICE COMPLAINT NUMBER 202-21-17


 

BACKGROUND

  1. This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (the United States) against Wallace Theater Corporation (Wallace Corp.), the owner and operator of Wharf Cinemas (Cinema) located at 658 Front Street, Lahaina, Maui, Hawaii. The complainant in Department of Justice complaint number 202·21-17 alleges that the Cinema contains three movie auditoria and only one seat in each that is accessible to individuals who use wheelchairs. The complainant further alleges that two individuals with disabilities were turned away because of the lack of accessible seats. The Department's investigation of the complaint has confirmed these allegations.
  2. The Attorney General of the United States 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 that a pattern or practice of discrimination exists or a matter of general public importance is raised. Id. at § 12188(b)(I)(B).
  3. The Cinema is a place of public accommodation under title III of the ADA. 42 U.S.C. § 12181(7)(E). The Wallace Theater Corporation is the current owner and operator of the Cinema and, as such, is a public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(E); 28 C.F.R. § 36.104. The Cinema was constructed before the ADA's effective date and has not been altered.
  4. Wallace Corp. agrees to undertake barrier removal, as outlined in this Settlement Agreement, where such removal is readily achievable, in compliance with 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304. In light of this Agreement, the parties have determined that Department of Justice complaint 202-21-17 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.
  5. The United States and Wallace Corp. (collectively, "the Parties") agree that, for the purposes of this Agreement, the alterations provisions of 28 C.F.R. Part 36 and the ADA Standards for Accessible Design (Standards) are used as a guide for barrier removal. All citations are to the Standards.

REMEDIAL ACTIONS

  1. Within one year of the effective date of this Agreement, Wallace Corp. will make the modifications contained in paragraphs 7-14 of this Agreement.
  2. Ticket Booth Lobby (South Entrance Door)
    1. There is a 1 ¾ inch change in level between the mall corridor and the ticket booth lobby. Provide an accessible route connecting these elements that, to the maximum extent feasible, coincides with the route for the general public. The accessible route must have a minimum clear width of 36 inches, or a minimum clear width of 42 inches if there is a turn around an obstruction less than 48 inches wide; have passing spaces at least 60 inches by 60 inches at least every 200 feet; have a minimum clear headroom of 80 inches; have a surface that is firm, stable, and slip resistant; have, in the absence of a curb ramp, ramp, elevator, or platform lift, no level changes in excess of ½ inch vertically; and have a running slope of less than 1:20 (5%) (or have been constructed as a fully accessible ramp) and a cross slope of less than 1:50 (2%). Standards §§ 4.3, 4.5, Fig. 7.
    2. The ticket counter is inaccessible because the top of the counter is 40 ¼ inches above the floor. Provide a counter on an accessible route such that a portion of the counter is at least 36 inches wide and no more than 36 inches above the finished floor, or provide an auxiliary counter with a maximum height of 36 inches in close proximity to the main counter, or provide equivalent facilitation. Equivalent facilitation may be provided in the form of a folding shelf attached to the main counter, an auxiliary table nearby, a clip board made available to the public, or other means. Standards §§ 7.2(2), 4.3.
    3. The designated accessible entrance from the ticket lobby to the concession lobby is not identified with accessible signage. Provide identifying signage with upper case, sans serif or simple serif type letters and numerals, meeting the requirements of the Standards for character height, raised characters, finish and contrast, accompanied by Grade 2 Braille; mounted on the wall adjacent to the latch side of the door or on the nearest adjacent wall at a height of 60 inches above the finished floor to the centerline of the sign; and located so that a person may approach within 3 inches of the signage without encountering protruding objects or standing within the swing of a door. Standards §§ 4.30.1, 4.30.4, 4.30.5, 4.30.6.
    4. The door from the ticket lobby to the concession lobby has a closing device with a sweep period of 2.5 seconds. Provide a door that has a closing time of at least 3 seconds. Standards § 4.13.10.
    5. The door from the ticket lobby to the concession lobby is inaccessible because the pressure required to open the door is 12 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).
  3. West Exit Doors
    1. The west exit doors have a closing device with a sweep period of 1.5 to 2.5 seconds. Provide doors that have a closing time of at least 3 seconds. Standards § 4.13 .20.
    2. The doors are inaccessible because the pressure required to open the doors is 13 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).
    3. The doors are inaccessible because there is a slope of 1:17 within the required maneuvering clearance of the door. Provide a door so that the floor or ground area within the required clearances is level and clear. Standards § 4.13.6, Fig. 25.
  4. Concession Lobby
    1. The clear width between the concession stand and the queuing rope varies between 31 and 36 inches. Provide an accessible route from the queuing rope to the concession stand with a minimum clear width of 36 inches, except at doors, where the width may decrease to 32 inches. Standards §§ 4.3.3, 4.13.5.
    2. The cash register counter is not accessible because the top of the counter is 40 inches above the floor. Provide a counter on an accessible route such that a portion of the counter is at least 36 inches wide and no more than 36 inches above the finished floor. Standards §§ 7.2(1), 4.3.
    3. The fire alarm pull station control is mounted 61 ½ inches above the floor. Provide a fire alarm so that its highest operable part is not higher than 48 inches above the floor for a forward approach or 54 inches above the floor for a side approach. §§ 4.2.5 & Fig. 5, 4.2.6 & Fig. 6.
    4. The clear floor space at the fire alarm pull station is 21 inches wide. Provide at least 30 inches by 48 inches of clear floor space so that there is sufficient clear floor space for a person using a wheelchair to make a forward or parallel approach. Standards §§ 4.2.4 & Fig. 4.
    5. The condiment counter is inaccessible because the top of the counter is higher than 36 inches above the floor. Provide a counter on an accessible route such that a portion of the counter is at least 36 inches wide and no more than 36 inches above the finished floor, or provide an auxiliary counter with a maximum height of 36 inches in close proximity to the main counter, or provide equivalent facilitation. Equivalent facilitation may be provided in the form of a folding shelf attached to the main counter, an auxiliary table nearby, or other means. Standards §§ 7.2(2), 4.3.
  5. Auditorium 1
    1. The auditorium door has a closing device with a sweep period of 2 seconds. Provide a door that has a closing time of at least 3 seconds. Standards § 4.13.10.
    2. The door to the auditorium lobby is inaccessible because the pressure required to open the door is 8 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).
    3. This auditorium has a total seat count of 176, of which 4 are required to be accessible to persons using wheelchairs. The clear floor space for the wheelchair seating locations is 72 inches deep and 85 inches wide, which only allows space for two wheelchair seats and only one adjacent companion seat is provided. Provide at least four 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 so as to provide people with physical disabilities a choice of lines of sight comparable to those 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), 4.5, 4.33, Fig. 46.
    4. The exit door is inaccessible because it has a threshold greater than ½ inch in height. Provide a door with a threshold no greater than ¼ inch in height, or between ¼ inch and ½ inch in height and beveled with a slope no greater than 1:2. Standards §§ 4.13.8, 4.5.2.
  6. Auditorium 2
    1. The door to the auditorium is inaccessible because the pressure required to open the door is 8 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).
    2. This auditorium has a total seat count of 131, of which 4 are required to be accessible to persons using wheelchairs. The clear floor space for the wheelchair seating locations is 63 inches deep and 89 inches wide, which only allows space for two wheelchair seats and only one adjacent companion seat is provided. Provide at least four 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 so as to provide people with physical disabilities a choice of lines of sight comparable to those 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), 4.5, 4.33, Fig. 46.
    3. The exit door is inaccessible because it has a threshold that is ¾ inch high. Provide a door with a threshold no greater than ¼ inch in height, or between ¼ inch and ½ inch in height and beveled with a slope no greater than 1:2. Standards §§ 4.13.8, 4.5.2.
    4. The exit door has a closing device with a sweep period of 2 seconds. Provide a door that has a closing time of at least 3 seconds. Standards § 4.13.10.
  7. Auditorium 3
    1. The auditorium door has a closing device with a sweep period of 2.5 seconds. Provide a door that has a closing time of at least 3 seconds. Standards § 4.13.10.
    2. The door to the auditorium is inaccessible because the pressure required to open the door is 12 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).
    3. This auditorium has a total seat count of 133, of which 4 are required to be accessible to persons using wheelchairs. The clear floor space for the wheelchair seating locations is 56 inches deep and 65 inches wide, which does not provide sufficient clear floor space for a wheelchair seat and an adjacent companion seat. Provide at least four 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 so as to provide people with physical disabilities a choice of lines of sight comparable to those 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), 4.5, 4.33, Fig. 46.
    4. The exit door is inaccessible because it has a threshold that is 1 inch high. Provide a door with a threshold no greater than ¼ inch in height, or between ¼ inch and ½ inch in height and beveled with a slope no greater than 1:2. Standards §§ 4.13.8, 4.5.2.
    5. The exit door has a closing device with a sweep period of 2 seconds. Provide a door that has a closing time of at least 3 seconds. Standards § 4.13.10.
  8. Auditoriums 1, 2, and 3 (typical for all)
    1. Only one aisle seat per auditorium provides a movable arm rest. In each auditorium, provide 1% of the total number of seats (but not less than one) aisle seat with no armrests on the aisle side, or with removable or folding armrests on the aisle side, identified by a sign or marker. Provide signage in the ticket office notifying patrons that such seating is available. Standards § 4.1.3(19)(a).
    1. The Cinema has no assistive listening system (ALS) for people who are hard of hearing. Provide a permanently installed assistive listening system (ALS) or a portable ALS with an adequate number of electrical outlets or other supplementary wiring necessary to support a portable assistive listening system. Also provide the appropriate number of receivers (i.e., 4% of the number of total seats but no fewer than 2) for use by the general public and signage indicating their availability. Standards §§ 4.30, 4.33
    1. The clear floor space at the fire alarm pull station is obstructed by seating. Provide clear floor space that is at least 60 inches deep for a side approach or 48 inches deep for a front or rear approach. Standards §§ 4.2.5 & Fig. 5; 4.2.6 & Fig. 6.
    2. The fire alarm pull station control height varies from 61 to 62 inches above the floor. Provide a fire alarm pull station so that its highest operable part is not higher than 54 inches above the floor for a side approach or 48 inches above the floor for a front approach. Standards § 4.2.6 & Fig. 6.
  9. Exit Doors of Theater
    1. The double door leading to the corridor is inaccessible because the clear opening width of each leaf of the door is 27 ¼ inches, and the threshold is higher than ½ inch. Provide a door at this location that has at least one active leaf with a clear opening at least 32 inches wide when measured from the face of the door to the middle edge of the other door when one door is opened 90 degrees and that has hardware usable with one hand and without tight grasping, pinching, or twisting of the wrist OR provide an automatic door opener that opens both doors simultaneously. Where no automatic opener is provided, door hardware may be lever-operated, push-type, or a U-shaped handle. Unless an automatic door operator is provided, there must be clear and level maneuvering clearances at the pull side and the push side of the active leaf as indicated in Fig. 25. The doors’ threshold must be ½ inch or less in height and beveled with a slope of no greater than 1:2. If a door closer is provided, it must be set so that the sweep period of the active leaf will, from an open position of 70 degrees, take 3 seconds to move to a point 3 inches from the latch, measured to the leading edge of the door. The active leaf must not take more than 5 pounds of force to open or close. Standards § 4.13, Figs. 24, 25.
  10. Within fourteen months of the effective date of this agreement, Wallace Corp. will submit
    a report to the Department summarizing the actions it has taken pursuant to this Agreement. The report will consist primarily of detailed photographs of the architectural modifications required by this Agreement and clearly show the dimensions of the various elements and spaces so that compliance with the ADA Standards may be determined.

ENFORCEMENT

  1. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any of its requirements has been violated, it may institute a civil action in federal district court to enforce this Agreement or the requirements of title III, following written notice to Wallace Corp. of possible violations and a period of 30 days in which Wallace Corp. has the opportunity to cure the alleged violations.
  2. If the United States brings suit for violation of this Agreement, it may seek all remedies provided in 42 U.S.C. § 12188, including civil penalties.
  3. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
  4. This Agreement shall be binding on Wallace Corp., its agents, and its employees. In the event Wallace Corp. seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale Wallace Corp. shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.

IMPLEMENTATION

  1. This Agreement is a public agreement. A copy of this document or any information contained in it will be made available to any person by Wallace Corp. or the Department upon request.
  2. The effective date of this Agreement is the date of the last signature below.
  3. If any term 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 Wallace Corp. 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.
  4. 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.
  5. This Agreement is limited to the facts set forth above, relates only to the specific ADA violations at the Cinema that are set out in this Agreement; does not purport to address any ADA violations at any theater with stadium-style seating or any other facility designed, constructed, owned, or operated by Wallace Corp.; and does not purport to remedy any other violations of the ADA or any other Federal law.
  6. This Agreement does not affect Wallace Corp.'s continuing responsibility 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 continually re-visited, particularly where the financial resources available to a public accommodation may improve over time.
  7. This Agreement will remain in effect for eighteen months from the effective date of this Agreement.
  8. The person signing this document for Wallace Corp. represents that he is authorized to bind Wallace Corp. to this Agreement.

FOR THE WALLACE THEATER FOR THE UNITED STATES: CORPORATION:
  GRACE CHUNG BECKER
Acting Assistant Attorney General
Civil Rights Division


By:________________________
BRETT HAVLIK
Wallace Theater Corporation
919 S.W. Taylor Street, Suite 800
Portland, Oregon 97205
By:______________________
JOHN L. WODATCH, Chief
JEANINE M. WORDEN, Deputy Chief
JOSH MENDELSOHN, Supervisory Attorney
SUSAN H. CRAWFORD, Investigator
Disability Rights Section – NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 307-0663
_____________________
Date
          1/15/2008          
Date

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October 09, 2008