United States Department of Justice
United States Attorney
Southern District of New York
VOLUNTARY COMPLIANCE AGREEMENT
THE UNITED STATES OF AMERICA
LEHMAN COLLEGE CENTER FOR THE PERFORMING ARTS, INC.
WHEREAS, 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 the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a); and
WHEREAS, the term “public accommodation” under the ADA includes a “motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment,” 42 U.S.C. § 12181(7)(C); and
WHEREAS, the ADA 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 complaint alleging that the Lehman Center for the Performing Arts (the “Concert Hall”), located in the Concert Hall building on the campus of Lehman College of The City University of New York (“CUNY”) at 250 Bedford Park Boulevard West, Bronx, NY 10468, was not being operated in compliance with the ADA (the “Complaint”); 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 Complaint to determine whether the Concert Hall was being operated in compliance with Title III of the ADA; and
WHEREAS, as part of its investigation into the Complaint, the United States requested information from Lehman College Center for the Performing Arts, Inc. (“Lehman Center”) the operator of programming at the Concert Hall;
WHEREAS, the United States conducted a limited site inspection of certain features and facilities within the Concert Hall, and met with representatives of Lehman Center and CUNY; and
WHEREAS, the United States and Lehman Center share the goal of resolving the Complaint and ensuring that the Concert Hall is operated in compliance with Title III of the ADA; and
WHEREAS, the Dormitory Authority of the State of New York and CUNY have plans to renovate the Concert Hall, and that renovation is intended to ensure that the Concert Hall is in compliance with the requirements of both Title II and Title III of the ADA; and
WHEREAS, in light of the actions taken by Lehman Center during the investigation of the allegations contained in the Complaint, and the actions that Lehman Center has agreed to take as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to Lehman Center or the Concert Hall as a result of the Complaint;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OPERATOR OF PROGRAMMING AT THE CONCERT HALL, AS FOLLOWS:
I. APPLICATION AND PARTIES BOUND
- The Concert Hall is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is a “theater, concert hall, stadium, or other place of exhibition entertainment.” 42 U.S.C. § 12181(7)(B); see 28 C.F.R. § 36.104.
- The Concert Hall is owned by the Dormitory Authority of the State of New York (“DASNY”) and is operated by both Lehman Center and CUNY. Although DASNY and CUNY are not parties to this agreement, Lehman Center is responsible for operating the Concert Hall in compliance with the ADA and for obtaining the necessary resources from DASNY and CUNY to meet that obligation and to ensure compliance with this Agreement.
- This Agreement shall be binding on Lehman Center and each of its agents and employees. In the event Lehman Center seeks to transfer or assign all or part of its right to operate programming in the Concert Hall, and the successor or assignee intends on carrying on the same or similar use of the Concert Hall, as a condition of transfer or assignment Lehman Center shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
- This Agreement shall apply to all public use areas within the Concert Hall. This includes, but is not limited to: the main entrance, concession areas and assembly seating areas. This Agreement shall not apply to non-public use areas, such as food preparation and storage locations, employee locker rooms, backstage facilities, and other service-related areas.
- For purposes of this Agreement, the term “the parties” refers to the United States and Lehman Center.
- For purposes of this Agreement, the term “2010 Standards” means the 2010 Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in 28 C.F.R. Part 36, subpart D. See appendices B and D to 36 C.F.R. part 1191 (2009) (“2004 ADAAG”).
- For purposes of this Agreement, the term “accessible” means in compliance with the Standards.
III. ROUTE TO CONCERT HALL ENTRANCE
- Lehman Center shall ensure that the route to the Concert Hall building entrance is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because CUNY has installed handrails on both sides of the ramp, with extensions and at the appropriate height as required by the 2010 Standards. See 2010 Standards §§ 206.2.1, 206.2.2, 405.8, 505.
- Lehman Center shall ensure that the main entrance (orchestra left) to the Concert Hall is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because CUNY has installed signage with the International Symbol of Accessibility for the designated accessible entrance to the orchestra, and further has installed an automatic door opener on the outside and vestibule doors of its main entrance that opens both leaves of the door pair simultaneously, ensuring a clear opening width of 32 inches minimum. See 2010 Standards §§ 206.4.1, 206.5.1, 216.6, 404, 404.2.2, 404.2.3, 703.7.2.1.
- Lehman Center shall ensure that directional signage is provided for all inaccessible entrances to the Concert Hall indicating the route to the designated accessible entrance. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because such directional signage has been installed by CUNY. See 2010 Standards §§ 216.6, 703.5.
- Lehman Center shall ensure that the door knobs are being replaced on the Concert Hall doors to the orchestra level with hardware operable with one hand that does not require tight grasping, pinching, or twisting of the wrist. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because such hardware has been replaced by CUNY (with levers meeting the 2010 Standards.) See 2010 Standards §§ 206.5.2, 404.2.7, 309.4.
V. CONCESSIONS STAND
- If concessions are offered at the Concert Hall, Lehman Center shall ensure that they are accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. Such concessions must be comparable to those offered in locations that are not accessible to, or usable by, persons with disabilities. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because it now operates two concession stands offering the same items during all performances at which concessions are offered, including one in the main entrance lobby where it is accessible to, and usable by, persons with disabilities, including those using wheelchairs. See 2010 Standards §§ 206.2.4, 206.3 & Chapter 4.
VI. ASSEMBLY SEATING
- Lehman Center shall ensure the purchase and installation of four moveable, padded companion seats with armrests, comparable to the fixed auditorium seats, to be positioned next to the presently available wheelchair spaces. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because it has purchased four Wenger® “portable audience chairs” and positioned them next to the wheelchair spaces in the Concert Hall. See 2010 Standards §§ 221.2.1, 221.3, 802.3.
VII. TOILET ROOMS
- Lehman Center shall ensure the placement of directional signage near the toilet room located in the Orchestra Right Lobby indicating the route to the nearest designated accessible toilet room. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because such directional signage has been installed by CUNY. See 2010 Standards §§ 216.8, 703.5, 703.7.2.1.
VIII. ASSISTIVE LISTENING SYSTEM
- Lehman Center shall purchase and maintain an assistive listening system that includes 59 working receivers, 15 of which are hearing aid compatible. Lehman Center shall also install a sign noting the availability of an assistive listening system that includes the International Symbol of Hearing Loss. Lehman Center is in compliance with this Paragraph on the effective date of this Agreement because such an assistive listening system has been purchased by Lehman Center and is being maintained by Lehman Center at the Concert Hall, and the signage discussed herein has been installed by CUNY. See 2010 Standards §§ 216.10, 219.3, 703.5, 703.7.2.4, 706.3.
IX. 2015 - 2017 RENOVATION
- DASNY and CUNY, both of which have obligations pursuant to Title II of the ADA, have plans to renovate the Concert Hall and documentation describing the renovation plans have been provided to the United States (the “renovation plans”). The renovation is currently scheduled to begin by the end of the 2015 calendar year and is expected to take at least two years to be completed. Lehman Center will ensure that the renovation is consistent with the renovation plans to the extent those plans include provisions to bring the Concert Hall and Lehman Center into full compliance with the ADA. Specifically, Lehman Center will ensure that the following provisions of the renovation plans are implemented:
- Ensuring sufficient vertical clearance along the circulation path in the orchestra and mezzanine lobbies, and providing guardrails or other barriers where necessary. See 2010 Standards §§ 204.1, 307.4.
- Constructing accessible drinking fountains. See 2010 Standards §§ 211, 602, 307.
- Building an accessible box office counter. See 2010 Standards §§ 227.3, 904.4.
- Increasing the distance between the lobby door and the vestibule door entrance to the concert hall to at least 48 inches plus the width of the door swinging into the vestibule. See 2010 Standards §§ 206.5.2, 404.2.6.
- Installing additional wheelchair spaces such that the Concert Hall has at least 19 wheelchair spaces that are dispersed and provide spectators with choices of seating locations, prices, and viewing angles that are substantially equivalent to, or better than, the choices of seating locations, prices, and viewing angles available to all other spectators. Each wheelchair space shall also have a companion seat equivalent in size, quality, comfort, and amenities to the seating in the immediate area. See 2010 Standards §§ 221.2.1, 221.2, 221.3, 802, 802.3.
- Installing sixteen (16) aisle seats that have folding or retractable armrests at locations closest to the accessible routes. See 2010 Standards §§ 221.4, 802.4.
- Ensuring there is an accessible route from the orchestra level to the stage. See 2010 Standards §§ 206.2.6, 206.7.1, 402.2, 405, 410.
- Providing an accessible men's and women's toilet room on the orchestra level and mezzanine level. See 2010 Standards §§ 213, 603 - 606.
On or before December 1, 2017, Lehman Center shall provide to the United States a narrative report of the actions taken pursuant to Paragraph 15 and a certification confirming compliance with this Agreement or, if the renovation project described in Part IX above is incomplete due to circumstances beyond the control of Lehman Center, requesting an extension of time to provide such certification.
- Lehman Center shall cooperate in good faith with any and all reasonable requests by the United States for access to the Concert Hall and for information and documents concerning Lehman Center’s compliance with this Agreement and the ADA.
- The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Concert Hall and communications with Lehman Center staff, through its attorney. The United States shall have the right to inspect the facility at any time, and counsel for the United States need not identify themselves in the course of visits to the public areas.
If the United States believes that this Agreement or any of its requirements has been violated, it will notify Lehman Center in writing and attempt to resolve the issue or issues in good faith. If the United States and Lehman Center are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.
XII. GENERAL PROVISIONS
In consideration for Lehman Center’s timely performance of all of its obligations under this Agreement, the United States agrees to discontinue its investigation of the Complaint and Lehman Center’s compliance with the ADA, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning Lehman Center, to initiate future compliance reviews concerning Lehman Center with respect to any aspect of the Concert Hall or its operation not expressly addressed in Parts III through IX of this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning Lehman Center, or commences any future compliance review concerning Lehman Center, nothing in this Agreement shall limit the scope of any investigation or compliance review of Lehman Center or preclude the United States from seeking relief beyond that required under this Agreement.
- A copy of this Agreement shall be made available to any person upon request.
- The effective date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is either three years from the effective date or until Lehman Center provides a certification of completion of all construction identified herein, whichever period is longer.
- This Agreement memorializes the commitments made by Lehman Center to increase accessibility of the Concert Hall and the terms under which the United States has agreed to conclude its investigation of the Complaint without further review or enforcement action. This Agreement is not intended to certify or signify, however, that either the Concert Hall or Lehman Center 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 any proceeding to signify such compliance. This Agreement does not affect Lehman Center’s 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.
- This Agreement does not constitute an admission by Lehman Center of non-compliance with any provision of the ADA.
- The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
- 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.
- This Agreement constitutes the entire agreement between the parties relating to the Complaint, 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
November 14, 2014
FOR THE UNITED STATES
United States Attorney for the
Southern District of New York
By: /s/ Lara K. Eshkenazi
LARA K. ESHKENAZI
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Dated: New York, New York
November 13, 2014
FOR LEHMAN COLLEGE CENTER FOR THE
PERFORMING ARTS, INC.
CUNY Related Entities Group
/s/ Jane E. Davis
Office of Counsel
JANE E. DAVIS
CUNY Related Entities Group
Office of Counsel
The City University of New York
205 E. 42nd Street, 11th Floor
New York, NY 10017
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November 25, 2014