UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA,
THE METROPOLITAN OPERA,
11 Civ. ______ (___)
WHEREAS, Plaintiff United States of America (the "Government") commenced this action to assure compliance with provisions of the Americans with Disabilities Act of 1990 ("ADA") against defendant the Metropolitan Opera ("Defendant" or "the Met"), pursuant to 42 U.S.C. § 12188(b)(1)(B), with respect to the Metropolitan Opera House, a theater or other place of exhibition or entertainment, located at Lincoln Center, New York, NY 10023; and
WHEREAS, the Met is a performing arts organization founded in 1883, and is a not-for-profit corporation under the laws of the State of New York. Pursuant to a long term lease agreement, the Met has been a tenant of the Metropolitan Opera House located at Lincoln Center since 1966; and
WHEREAS, the complaint alleges that Defendant violated Title III of the ADA, 42 U.S.C. §§ 12181-89, and the Department of Justice's implementing regulation, 28 C.F.R. Pt. 36, by, among other things, failing to remove architectural barriers to access where it was readily achievable to do so; failing to use readily achievable alternatives to barrier removal where barrier removal was not readily achievable; and failing to make reasonable modifications to policies, practices and procedures to make the goods and services offered at the Opera accessible to individuals with disabilities; and
WHEREAS, the United States Attorney's Office for the Southern District of New York conducted an investigation into a complaint alleging lack of certain accessible facilities at the Met; and
WHEREAS, prior to the entry of this Consent Decree, Defendant has (i) renovated its restrooms such that all are now accessible; (ii) renovated its concession stands such that all are now accessible; (iii) installed appropriate raised letter or Braille signs throughout the facility; (iv) installed additional accessible drinking fountains; (v) installed a handrail along the wall from the orchestra level elevators to the stairwells leading to the restrooms; and (vi) installed additional wheelchair and companion seating;
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. This Court has jurisdiction over this action pursuant to 42 U.S.C. §§ 12188(b)(1)(B) and 42 U.S.C. §§ 1331 and 1345.
2. This Consent Decree applies to, and is binding upon, the Government and the Defendant, and their agents and employees. In the event Defendant seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of transfer, Defendant shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement, as defined by paragraph 22 (the "Term") herein. The undersigned representative of Defendant certifies that she is authorized by Defendant to enter into and consent to the terms and conditions of the Consent Decree and to execute and legally bind Defendant to it.
3. The Opera is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because it is a "theater, . . . or other place of exhibition or entertainment" within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104. The Met operates a place of public accommodation as defined in 42 U.S.C. § 12181 and 28 C.F.R. § 36.104, and is thus a public accommodation.
4. This Consent Decree shall apply to the theater facilities at the Metropolitan Opera House, at Lincoln Center, New York, New York. Notwithstanding any term of this Consent Decree, specifically reserved and excluded from the scope and terms of this Consent Decree as to any entity or person, including the Government, is any claim arising under the ADA and the Department of Justice regulations implementing the ADA pertaining to the below stage, below or above-stage dressing and wardrobe rooms, security and other offices, toilet facilities in these areas, and the routes to and connecting these areas.
5. During the course of its investigation of the Opera, the Government identified barriers to access to and within the Opera, which are described more fully below. Defendant shall remedy the barriers to access identified in this Consent Decree in the manner set forth below within eighteen (18) months after the date of entry of this Consent Decree. In addition, any renovations or alterations to the Opera, within the meaning of 28 C.F.R. § 36.402, including without limitation the addition of new seating, bar or food concessions or facility, restaurant, function room, restroom, drinking fountain, or public telephone, shall be made in accordance with the ADA Standards for Accessible Design, 28 C.F.R. Pt. 36, App. A (the "Standards").
6. Barrier Description: The Opera has a seating capacity of 3,341 people (not including standing room positions). The Standards require 6 wheelchair seating locations for assembly areas that can accommodate 500 seated individuals, and additional wheelchair seating locations as the theater capacity increases. See Standards § 4.1.3(19). To the extent that it is readily achievable, these seats shall be dispersed and shall provide comparable lines of sight and be offered at comparable ticket prices. 28 C.F.R. §§ 36.308(a)(ii)(A), 36.308(a)(ii)(B). The Standards also require that one fixed designated companion seat be provided next to each wheelchair seat. See Standards § 4.33.3. Annexed hereto as Exhibit A, is a copy of Defendant's current Seating Plan for Accessibility ("Seating Plan").
7. Consent Decree Requirement: Defendant agrees, voluntarily, to maintain the seating arrangement set forth in the Seating Plan, and that tickets for wheelchair and companion seating locations in the Met shall be offered for sale at or below the price for other seats located in similar seating locations of the Met. Defendant shall make tickets available for sale to individuals with disabilities as set forth in paragraphs 11 and 12.
8. Defendant further agrees that before commencing any alteration to the seating Area during the Term hereof, within the meaning of 28 C.F.R. § 36.402, Defendant shall provide the Government with a Revised Proposed Seating Plan for Accessibility ("Revised Seating Plan"), which shall not contain fewer accessible seating locations than those designated in the Proposed Seating Plan, and shall otherwise comply with the ADA Standards, unless Defendant can show that to do so would be "technically infeasible" as defined in Section 4.1.6(1). Defendant shall obtain the Government's approval, which shall not be unreasonably withheld, before commencing any renovation pursuant to any Revised Seating Plan during the term hereof, as defined by paragraph 22.
9. Barrier Description: The following barriers to accessibility are present with respect to three out of six of the elevator facilities:
(a) Elevator buttons are recessed instead of raised or flush. See Standards §§ 4.1.3(5) and 4.10.12(1).
(b) The emergency communication system is in an enclosure with non-compliant hardware requiring pinching to open. The communication device requires voice communication and there is no raised signage and lettering. See Standards §§ 441.1.3(5), 4.10.14. 4.27 and 4.30.
(c) The emergency buttons appear at the top of the control panel instead of at the bottom. See Standards §§ 4.1.3(5), 4.10.12(3) and Figures 23a & b.
(d) The elevators lacked accessible controls. See Standards §§ 4.1.3(5), 4.10.12(2), 4.10.12(3) and Figures 23a & b.
(e) The elevator call buttons on the Grand Tier level are not accessible.See Standards §§ 4.1.3(5), 4.10.3 and Figure 20.
10. Consent Decree Requirement: Defendant shall eliminate the barriers to accessibility identified in paragraph 9 and comply with the Standards identified in paragraph 9.
11. Consent Decree Requirement: Defendant shall give first preference for all wheelchair and companion seating locations to persons who specifically request them for disability-related reasons except as set forth herein.
(a) At least two wheelchair accessible wheelchair locations and two companion seats shall be reserved, until the day of the performance, for sale to individuals who specifically request them for disability-related reasons. Defendant may select the locations to be retained.
(b) In addition to reserving the seating locations described in paragraph 11(a), Defendant shall not release any unsold wheelchair accessible seating locations for sale to patrons who do not request wheelchair accessible seating locations until the earlier of (i) seventy-two hours after all other similarly situated seats for the event have sold out, or (ii) two weeks before the event.
12. Defendant shall ensure that persons who specifically request wheelchair and companion seating for disability-related purposes through the Opera's box office are informed of all of the available seating that has not been sold at that time. Defendant shall use its best efforts to ensure that persons who specifically request wheelchair and companion seating for disability-related purposes through other ticket distribution methods, such as Ticketmaster, are informed of all of the available seating that has not been sold at that time and are provided with their first stated choice of available seating locations, and are not otherwise encouraged or steered to sit elsewhere.
13. Barrier Description: The Met does not contain a visual alarm system. See Standards §§ 4.1.3(14) and 4.28.
14. Consent Decree Requirement: In lieu of installing a separate visual alarm system, the Met has revised its emergency evacuation procedures to ensure that, in the event of an emergency requiring evacuation, Met staff members are required to inspect all areas of the Met that are accessible to members of the public to ensure that individuals with disabilities receive any necessary assistance. In addition, Defendant will program the "Met Titles" already installed in the theater to operate as a visual alarm system in the event of an emergency. Specifically, in the event of an emergency, the Met Titles will activate at every seat and provide information pertinent to the emergency regardless of whether the particular performance calls for the use of Met Titles, or whether each patron is using Met Titles at that time of the emergency.
15. Defendant is enjoined from discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods and services of the Opera. Defendant shall provide individuals with disabilities an equal opportunity to benefit from the goods, services, benefits, advantages, and privileges as is provided to those individuals without disabilities.
16. Within eighteen months after the date of entry of this Consent Decree, Defendant shall submit to the Government a certification, under penalty of perjury, stating that it has complied with all obligations of this Consent Decree that are required to be satisfied or completed by that date, and shall state specifically that (a) Defendant has maintained the Seating Plan pursuant to paragraph 7; and (b) Defendant has completed the modifications required by paragraphs 9, 10, 11, 12 ,13 and 14. Within thirty days after the date of completion of any alteration pursuant to a Revised Seating Plan under paragraphs 7 and 8, Defendant shall submit to the Government a certification, under penalty of perjury, stating that it has complied with all obligations of this Consent Decree as to the Revised Seating Plan under paragraphs 7 and 8.
17. Upon reasonable advance notice to Defendant (through undersigned counsel), Defendant shall permit the Government and any person acting on its behalf unrestricted access to the Opera to review compliance with the ADA and this Consent Decree. If the Government believes that Defendant has violated this Consent Decree or is otherwise not in full compliance with the ADA, the United States will notify Defendant in writing and seek to resolve the matter amicably before applying to the Court for relief. For two years from the effective date of this Consent Decree, Defendants shall provide to the Government (every 3 months) a report on the sales of wheelchair, aisle transfer, and companion seating locations, specifying the seat(s) requested and the seat(s) sold, including the timing of such sales, and sales through Ticketmaster.
18. A violation of this Consent Decree shall be deemed a subsequent violation of the ADA under 42 U.S.C. § 12188(b)(3); 28 C.F.R. § 36.504(b).
19. Nothing contained in this Consent Decree is intended or shall be construed as an admission by or finding against Defendant that Defendant was in violation of the ADA or any other federal statutes or regulations, or as a waiver by the Government of any right to institute any proceeding or action against Defendant for violations of any statutes, rules or regulations administered by the Government, or to prevent or limit the rights of the Government to obtain relief under the ADA, or any other federal statutes or regulations, or on account of any violation of this Consent Decree or any other provision of law. However, subject to Defendant's full compliance with the Consent Decree, the Government will not file a subsequent complaint against Defendant pursuant to Title III of the ADA concerning the Opera covered by this Consent Decree for the same violations identified in the complaint herein, unless Defendant makes alterations that do not comply with Title III of the ADA. This Consent Decree is a compromise of claims between the Government and Defendant. It is based on the unique nature of this particular facility and its provisions are not necessarily applicable to any other entities or facilities.
20. There shall be no modification of this Consent Decree without the written consent of the Government, Defendant, and the approval of the Court.
21. This Consent Decree represents the entire agreement between the Government and Defendant. No prior agreements, oral representations or statements shall be considered part of this Consent Decree.
22. This Court shall retain jurisdiction of this action for a period of three (3) years from the date of the latest certification required by paragraph 16 of this Consent Decree, to enforce or modify the provisions of this Consent Decree, to resolve any dispute that arises under this Consent Decree, and to entertain any application and issue any orders (including, without limitation, orders directing the modification of policies, practices, and procedures, and orders requiring the removal of barriers to access) as may be necessary or appropriate for the effectuation of its terms. The parties shall discuss and attempt to negotiate a resolution of any dispute relating to the interpretation of this Consent Decree before bringing the matter to the Court's attention for resolution.
EXECUTION OF CONSENT DECREE
23. This Consent Decree may be executed in counterparts, each of which shall be an original and shall constitute one and the same instrument.
24. Exhibit A to this Consent Decree is incorporated by reference into this Consent Decree as though fully set forth in the Decree.
25. Each party shall bear its own costs and attorney's fees in this action.
THE PARTIES HEREBY CONSENT to entry of the foregoing Consent Decree:
|FOR THE UNITED
Dated: New York, New York
Dated: New York, New York
SHARON E. GRUBIN
General Counsel for the Metropolitan Opera
Attorney for Defendant
The Metropolitan Opera
New York, New York 10023
SO ORDERED: January 13, 2011
/s/ George B. Daniels
UNITED STATES DISTRICT JUDGE
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