Settlement Agreement between the United States of America and West Point Tours, Inc.

VOLUNTARY COMPLIANCE AGREEMENT
between
THE UNITED STATES OF AMERICA
and
WEST POINT TOURS, INC.

WHEREAS, Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181 et seq., provides, among other things, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce," 42 U.S.C. § 12184(a); and

WHEREAS, the ADA further provides, in relevant part, that "[i]t shall be considered discrimination for a private entity which operates a fixed route system . . . that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs," 42 U.S.C. § 12182(2)(B)(i); and

WHEREAS, discrimination as defined by the ADA includes the failure by applicable fixed-route transportation providers to "purchase or lease" an "over-the-road bus . . .that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs," 42 U.S.C. § 12184(b); and

WHEREAS, each "large operator" of a fixed route system is required to ensure that by October 29, 2012, one hundred percent of the buses in its fleet with which it provides fixed-route service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, pursuant to 42 U.S.C. § 12184(b)(4)(A) and 49 C.F.R. § 37.185(b); and

WHEREAS, pursuant to DOT regulations promulgated under the ADA, each "private entity which operates a fixed route or demand responsive system shall ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities," 49 C.F.R. § 37.173; and

WHEREAS, the ADA authorizes the U.S. Department of Transportation's ("DOT") Federal Motor Carrier Safety Administration ("FMCSA") to conduct reviews of compliance with relevant provisions of Title III of the ADA, pursuant to 42 U.S.C. §§ 12184 and 12188; and

WHEREAS, the ADA further authorizes the United States Department of Justice to investigate alleged violations of Title III, and to undertake reviews of compliance of covered entities pursuant to 42 U.S.C. § 12188(b)(1)(A)(i); and

WHEREAS, the United States Attorney's Office for the Southern District of New York (the "United States") received a report, based on a compliance review by the FMCSA conducted on October 26, 2016 (the "Compliance Review"), that West Point Tours, Inc. ("West Point Tours"), located in part at 1047-1049 Route 94, Vails Gate, New York 12584, was not operating in compliance with the ADA; and

WHEREAS, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States commenced an investigation of the facts alleged in the Compliance Review to determine whether West Point Tours was operating in compliance with Title III of the ADA; and

WHEREAS, as part of its investigation, the United States requested information from the owner and operator of West Point Tours; and

WHEREAS, the United States and West Point Tours share the goal of resolving the matters raised by the Compliance Review and ensuring that West Point Tours operates in compliance with Title III of the ADA; and

WHEREAS, in light of the actions that West Point Tours has agreed to take as set forth in this Voluntary Compliance Agreement (the "Agreement") to comply with the ADA, the United States has decided to take no further enforcement action at this time with respect to West Point Tours as a result of the Compliance Review;

NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNER AND OPERATOR OF WEST POINT TOURS, AS FOLLOWS:

I. APPLICATION AND PARTIES BOUND

  1. West Point Tours is a private transportation company with its principal place of business at 1047-1049 Route 94, Vails Gate, New York 12584. West Point Tours' DOT number is 42238. West Point Tours is a New York corporation.
  2. West Point Tours is a large, fixed-route operator within the meaning of 42 U.S.C. § 12181(4) and 49 C.F.R. § 37.3; an over-the-road bus ("OTRB") operator within the meaning of 42 U.S.C. § 12181(5) and 49 C.F.R. § 37.3; and a Class I motor carrier within the meaning of 49 C.F.R. § 369.3. West Point Tours is in part a private operator of fixed-route transportation service that is primarily engaged in the business of transporting people and whose operations affect commerce within the meaning of 42 U.S.C. § 12184(a) and 49 C.F.R. §§ 37.3 and 37.5(f).
  3. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation. The parties have therefore voluntarily entered into this Agreement.
  4. This Agreement shall be binding on West Point Tours, and each of its agents and employees. In the event any relevant individual or entity seeks to transfer or assign all or part of an interest in West Point Tours, and the successor or assignee intends on carrying on the same or similar transportation operations, as a condition of sale the transferor or assignor shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.

    II. FINDINGS

  5. At the time of FMCSA's Compliance Review, West Point Tour's fixed-route OTRB fleet was not one hundred percent accessible. FMCSA surveyed 32 routes on which fixed route service was provided, and found that an inaccessible OTRB was used in fifteen of those instances, or 47% of the times.
  6. At the time of FMCSA's Compliance Review, West Point Tours was unable to identify with specificity the occurrence, frequency, and content of ADA-related trainings of its employees and contractors as required by 49 C.F.R. § 37.173 and related regulations.

    III. ACTIONS TO BE TAKEN BY WEST POINT TOURS

  7. West Point will not exclude persons with disabilities from participation in, or deny them benefits of, transportation services in violation of title III of the ADA, 42 U.S.C. § 12184, 28 C.F.R. pt. 36 and 49 C.F.R. pts. 37 and 38. West Point will comply with all of its obligations under title III of the ADA, 42 U.S.C. § 12184, 28 C.F.R. pt. 36 and 49 C.F.R. pts. 37 and 38.
  8. Within 60 days of the effective date of this Agreement, West Point Tours agrees that it will only use wheelchair-accessible motor coaches for its fixed route service, whether offered by West Point Tours or under contract by West Point Tours for another entity.
  9. Within 30 days of the effective date of this Agreement, and every year thereafter for the duration of this Agreement, West Point Tours will train all employees and contractors (including reservationists, dispatchers, mechanics, and bus operators) on the ADA requirements for large, fixed-route OTRB operators and the requirements of this Agreement. West Point Tours will also provide the same training and notification to employees and contractors within 30 days of hiring. This training will ensure that all West Point Tours personnel operate vehicles and equipment safely and properly treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities. This training will last at least four hours, and the agenda, materials, and trainer must be pre-approved by the DOT. West Point Tours will maintain documentation of these trainings, including copies of the training materials that are used as well as attendance records, for a period of three years following each training.

    IV. IMPLEMENTATION, ENFORCEMENT, AND EFFECT

  10. In consideration for entering this Agreement, the United States will refrain from undertaking further action relating to this investigation or from filing a civil action at this time alleging discrimination based on the allegations set forth above. However, the United States may review West Point Tours' compliance with this Agreement or title III of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or title III of the ADA.
  11. Failure by the United States to enforce any provisions in this Agreement is not a waiver of its right to enforce other provisions of this Agreement.
  12. This Agreement is binding on West Point Tours, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries and assigns. In the event that West Point Tours seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, West Point Tours will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
  13. This Agreement is the entire agreement between the United States and West Point Tours on the matters raised herein and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
  14. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement. Nothing in this Agreement relieves West Point Tours of its obligation to otherwise comply with the requirements of the ADA.
  15. A copy of this Agreement shall be made available to any person upon request.
  16. This Agreement memorializes the commitments made by West Point Tours to provide accessible fixed-route service and undertake trainings in compliance with the ADA and the terms under which the United States has agreed to conclude its investigation of the matters raised by the Compliance Review without further review or enforcement action. This Agreement is not intended to certify or signify, however, that West Point Tours is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect West Point Tours' continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
  17. The effective date of this Agreement is the date of the last signature below.
  18. The duration of this Agreement will be three years from the effective date.
  19. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
  20. Failure by the United States to enforce the entire Agreement, with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
  21. This Agreement constitutes the entire agreement between the parties relating to the matters raised in the Compliance Review, 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 Agreement, shall be enforceable.


Dated: New York, New York
July 5, 2017

 

 

 

 

 

 

 

 

Dated: New Windsor, New York
June 30, 2017

FOR THE UNITED STATES:

JOON H. KIM
Acting United States Attorney for the
Southern District of New York


By: /s/ Stephen Cha-Kim
STEPHEN CHA-KIM
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
(212) 637-2768
stephen.cha-kim@usdoj.gov



FOR WEST POINT TOURS, INC.:

RIDER, WEINER, & FRANKEL, P.C.


By: /s/ Justin Rider
M. JUSTIN RIDER
655 Little Britain Road
New Windsor, New York 12553
(845) 562-9100
jrider@riderweiner.com