1. This matter was initiated by a compliance review conducted by the United States Department of Justice ("the Department") concerning the compliance of the Magical Palace, f/k/a VanBurch’s Palace of Mystery, f/k/a VanBurch & Wellford Theater, f/k/a Gettysburg Theatre, in Branson, Missouri, with Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, and the Standards for Accessible Design (“ADA Standards”), 28 C.F.R. pt. 36 app. A. The Department’s review has revealed that certain aspects of the Magical Palace premises constructed or altered since Title III’s effective date violate the ADA Standards for new construction and alterations.
2. The Attorney General 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. See 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 a pattern or practice of discrimination exists or a matter of general public importance is raised. See id. at § 12188(b)(1)(B).
3. The Magical Palace is a theater presenting live entertainment, and as such is a place of public accommodation covered by title III of the ADA. See 42 U.S.C. § 12181(7)(f). Thirty-Five, LLC (“Thirty-Five”), owns and operates the Magical Palace.
4. Thirty-Five states that it is committed to full compliance with the Americans with Disabilities Act, as determined by the Department. To demonstrate that commitment, Thirty-Five has agreed to correct violations of the ADA Standards for new construction and alterations. Thirty-Five agrees to take the steps outlined in this Settlement Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the goods and services of the Magical Palace. In light of this agreement, the parties have determined that Department of Justice Matter Number 202-42-16 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.
AGREEMENT
5. Thirty-Five and its officers, agents, and employees are hereby enjoined from:
a. making further alterations to the Magical Palace that do not comply with the ADA, and its implementing regulation, including the Standards for Accessible Design (“ADA Standards”), as set forth in 28 C.F.R. part 36 app. A;
b. failing to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable; and
c. discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods and services of the Magical Palace.
6. Within 60 days of the effective date of this Settlement Agreement, Thirty-Five shall present to the Department a set of detailed specifications, architectural plans, or other written or illustrative material, displaying proposed modifications to the Magical Palace, to be undertaken as follows:
Parking
a. Designate one of the four accessible parking spaces adjoining the 96-inch wide access aisle in the upper level parking lot across from the main entrance as a van accessible parking space by modifying existing signage, in compliance with ADA Standards §§ 4.1.2(5)(b) and 4.6.4.
b. Designate the three accessible parking spaces adjoining the 60-inch wide access aisles in the lower level parking lot adjacent to the bus entrance by installing signage displaying the international symbol of accessibility, in compliance with ADA Standards §§ 4.1.2(5) and 4.6.4.Entrances and Exits
c. Designate the bus entrance as an accessible entrance for wheelchair seating in the Magical Palace auditorium by installing signage displaying the international symbol of accessibility, in compliance with ADA Standards §§ 4.1.2(7)(c).
d. Modify the route from the bus entrance to the parking lot so that the cross slope of the route is no more than 1:50, in compliance with ADA Standards §§ 4.1.3(1) and 4.3.8.Theater Lobby
e. Reconfigure the ticket counter, or provide an auxiliary counter in close proximity to the ticket counter, so that a counter is provided that is at least 36 inches long and no more than 36 inches high, in compliance with ADA Standards § 7.2(1).
f. Reconfigure the concession counter, or provide an auxiliary counter in close proximity to the concession counter, so that a counter is provided that is at least 36 inches long and no more than 36 inches high, in compliance with ADA Standards § 7.2(1).
g. Reconfigure the magic shop counter, or provide an auxiliary counter in close proximity to the magic shop counter, so that a counter is provided that is at least 36 inches long and no more than 36 inches high, in compliance with ADA Standards § 7.2(1).
h. Modify the wheelchair accessible drinking fountain so that the spout outlet is no higher than 36 inches above the finish floor, and so that the trajectory of the water flow is parallel to the front edge of the fountain, in compliance with ADA Standards §§ 4.1.3(10)(a), 4.15.2, and 4.15.3.
i. Install an additional drinking fountain at a standard height for individuals who have difficulty bending or stooping, in compliance with ADA Standards § 4.1.3(10)(a).Women's Toilet Room
j. Post accessible signage at the women's toilet room door, on the latch side of the door, with the centerline of the sign no more than 60 inches above the finish floor, and in Braille and raised letters, in compliance with ADA Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, and 4.30.6.
k. Reconfigure the toilet stalls so that at least one of the stalls, in addition to a designated accessible toilet stall, is a 36-inch-wide stall with parallel grab bars and an outward-swinging, self-closing door, in compliance with ADA Standards §§ 4.1.3(11) and 4.22.4.
l. Reconfigure the designated accessible toilet stall so that the rear portion of the stall is at least 60 inches wide, and so that the stall is at least 59 inches deep, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).
m. Modify the toilet in the designated accessible toilet stall so that the centerline of the toilet is exactly 18 inches from the wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).
n. Remount the side grab bar in the designated accessible toilet stall so that it is between 33 and 36 inches above, and parallel to, the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(d).
o. Remount the toilet paper dispenser in the designated accessible toilet stall so that it is on the side of the toilet stall that is closest to the toilet, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).
p. Modify the lavatory so that the bottom of the lavatory counter apron is at least 29 inches above the finish floor, and so that the knee space underneath the lavatory is at least 27 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.
q. Remount the paper towel dispenser so that the control for the dispenser is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(13), 4.2.6, and 4.27.3.
r. Remount the baby changing station so that the pull handle for the station is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(13), 4.2.6, and 4.27.3.Men's Toilet Room
s. Post accessible signage at the men's toilet room door, on the latch side of the door, with the centerline of the sign no more than 60 inches above the finish floor, and in Braille and raised letters, in compliance with ADA Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, and 4.30.6.
t. Modify the toilet in the designated accessible toilet stall so that the centerline of the toilet is exactly 18 inches from the wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).
u. Remount the side grab bar in the designated accessible toilet stall so that the end of the grab bar is at least 52 inches from the rear wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Figure 30(d).
v. Remount the toilet paper dispenser in the designated accessible toilet stall so that the distance from the rear wall to the front edge of the dispenser is no more than 36 inches, and so that it is located below the grab bar, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Fig. 30(d).
w. Remount the coat hook on the door of the designated accessible toilet stall so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.
x. Modify the lavatory so that the bottom of the lavatory counter apron is at least 29 inches above the finish floor, and so that the knee space underneath the lavatory is at least 27 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.
y. Remount the paper towel dispenser so that the control for the dispenser is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(13), 4.2.6, and 4.27.3.Theater Auditorium
z. Adjust the doors from the lobby into the auditorium vestibule, and the doors from the vestibule into the auditorium, so that the force required to open the door is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(7) and 4.13.11.
aa. Install a permanent assistive listening system within the auditorium, and purchase at least 36 complete headsets and receivers for use with the assistive listening system, in compliance with ADA Standards § 4.1.3(19)(b).
bb. Post signage in the auditorium and at the ticket counter(s) notifying patrons of the availability of the assistive listening system, in compliance with ADA Standards §§ 4.1.3(19)(b), 4.30.7(4), and Fig. 43(d).
cc. Install at least four additional designated fully accessible wheelchair seating areas in the auditorium, so that at least ten fully accessible wheelchair seating areas are provided in the auditorium, in compliance with ADA Standards §§ 4.1.3(19)(a) and 4.33. A fixed companion seat shall be installed adjacent to each of the designated accessible wheelchair seating areas within the sloped floor seating, in compliance with ADA Standards §§ 4.1.3(19)(a) and 4.33.3. No more than two of the designated wheelchair seating areas within the auditorium shall be adjacent to each other.
dd. Modify the route between the wheelchair accessible entrance at Row D of the auditorium and the designated fully accessible wheelchair seating area at Row A so that the slope of the ramps leading to the Row A wheelchair seating area is no more than 1:12, and so that a level 60 inch by 60 inch landing is provided between any change in direction of the ramps, in compliance with ADA Standards §§ 4.1.3(1), 4.3.8, 4.8.2, 4.8.4(3).
ee. Install at least six additional aisle seats without armrests on the aisle side or with removable or folding armrests on the aisle side, so that at least nine accessible aisle seats are provided in the auditorium, in compliance with ADA Standards §§ 4.1.3(19)(a) and 4.33.Backstage
ff. Ensure that the men’s and women’s dressing rooms are fully accessible, by:
i. Installing door opening hardware on the dressing room door that does not require tight grasping and twisting of the wrist to operate, in compliance with ADA Standards §§ 4.1.3(7) and 4.13.9.
ii. Adjusting the door to the dressing room so that the force required to open the door is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(7) and 4.13.11.
iii. Reconfiguring the space in front of the dressing room door so that there is at least 18 inches of maneuvering space on the latch side of the door, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.
iv. Mounting the intercom control so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(13), 4.2.6, and 4.27.3.
v. Mounting the clothes rod so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.
vi. Mounting at least one clothing storage shelf so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.
vii. Mounting a 24"- 48" bench to one of the dressing room interior walls, in compliance with ADA Standards §§ 4.1.3(21) and 4.35.4.
viii. Mounting a full-length mirror measuring at least 18" by 54" to one of the dressing room interior walls, in compliance with ADA Standards §§ 4.1.3(21) and 4.35.5.gg. Ensure that the shower rooms adjoining the men’s and women’s dressing rooms are fully accessible, by:
i. Providing at least one 60-inch wide accessible toilet stall, in compliance with ADA Standards §§ 4.1.3(11), 4.17, 4.23.4, and Figure 30.
ii. Ensuring that the toilet within the accessible toilet stall is modified so that the centerline is exactly 18 inches from the wall, and so that the toilet seat is between 17 and 19 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.16.2, 4.16.3, 4.23.4, and Figures 28 and 29.
iii. Ensuring that grab bars are provided within the accessible toilet stall, in compliance with ADA Standards §§ 4.1.3(11), 4.16.4, 4.23.4, 4.26, and Fig. 29.
iv. Removing any cabinetry from underneath at least one lavatory so that there is clear floor space and knee space under the lavatory, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.19.3, 4.22.6, and Fig. 31.
v. Ensuring that the accessible lavatory hot water and drain pipe is insulated against contact, in compliance with ADA Standards §§ 4.1.3(11), 4.19.4, and 4.22.6.
vi. Installing lavatory faucet controls which are operable without tight grasping or twisting of the wrist, in compliance with ADA Standards §§ 4.1.3(11), 4.19.5, and 4.23.6.
vii. Remounting the paper towel dispenser so that the dispenser control is no more than 54 inches above the finish floor, and so that clear floor space 30 inches wide and 48 inches deep is provided in front of and underneath the dispenser, in compliance with ADA Standards §§ 4.1.3(13), 4.2.4.1, 4.2.6, 4.27.2, and 4.27.3.
viii. Modifying at least one shower stall so that it is exactly 36 inches wide by 36 inches deep, in compliance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Fig. 35.
ix. Providing a seat with grab bars inside the shower stall, in compliance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Figs. 35 and 36.
x. Providing a shower spray unit with a hose at least 60 inches long in the shower, in compliance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Figures 35 and 37.
xi. Ensuring that the shower spray unit and all shower controls are mounted on the side wall of the shower opposite the seat, in compliance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Figures 35 and 37.
xii. Modifying the urinal in the men’s shower room so that the urinal rim is no more than 17 inches above the finish floor, and so that the urinal flush control is no more than 44 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.18.2, 4.18.4, and 4.23.7.
7. All steps taken to remove the architectural barriers at the Magical Palace enumerated above shall be completed within 60 days of the Department’s approval of Thirty-Five’s proposed plans and specifications. Any modifications performed without approval of the Department that do not strictly comply with the ADA Standards must be redone within 30 days of the Department’s objections.
8. Within 180 days of the entry of this order, Thirty-Five shall certify to the Department, in writing, that it has fulfilled all of its obligations under this Settlement Agreement. The certification shall set out each of the obligations that has matured by the date of the certification, and shall describe the steps Thirty-Five has taken to fulfill these obligations. The certification shall also identify all continuing obligations under this agreement, and describe how Thirty-Five will meet those obligations. Thirty-Five will allow representatives of the Department access to the Magical Palace so that the Department may monitor compliance with the certification and this Agreement.
9. In the event that Thirty-Five is required to obtain, for any of the steps to remove barriers to access specified in this agreement, any building, mechanical, electrical, plumbing or other permit or approval, Thirty-Five shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Thirty-Five for obtaining the permit or approval, or is denied, Thirty-Five shall promptly notify counsel for the Department. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.
10. Thirty-Five shall implement the following accessible seating policies for the Magical Palace:
a. Individuals without disabilities will not be placed in the designated wheelchair seating areas unless all other seating is full.
b. Individuals with mobility impairments, including individuals using wheelchairs, who request a seat in the designated wheelchair seating will pay the same ticket price as will those persons sitting in other comparable seating.
c. The Magical Palace shall ensure that individuals requesting wheelchair seating are informed as to the configuration of the auditorium seating, the location of the designated wheelchair seating, and the nature of access to the designated wheelchair seating.
Thirty-Five shall inform and train all staff responsible for taking reservations and seating patrons regarding these seating policies.
11. Within 30 days of the effective date of this Agreement, Thirty-Five will prominently post the attached “Notice” at all Magical Palace ticket counters. Copies of the Notice will also be made available to any individual upon request.
12. Within thirty (30) days after the effective date of this Agreement, Thirty-Five shall make a payment in the amount of five thousand dollars ($5000) to the United States, pursuant to 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3)(i).
13. In consideration of the promises made in ¶¶ 5 through 12 above, the Department agrees to close the investigation of Matter Number 202-42-16 and to refrain from bringing a civil action against Thirty-Five.
ENFORCEMENT
14. The Department may review compliance with this Settlement Agreement at any time. Such compliance review may include monitoring usage of assistive listening devices in the Magical Palace auditorium. If the Department believes that Thirty-Five has violated this Agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from Thirty-Five. If the parties are not able to reach an amicable resolution of the matter, the Department may file a civil action to enforce the Agreement in federal district court. If the court makes a determination of a violation of this Agreement, such failure to comply shall be treated as a violation of the ADA, and the Department may seek all remedies provided in 42 U.S.C. § 12188. As part of such remedies, the United States may seek a civil penalty as specifically provided in 42 U.S.C. § 12188(b)(2)(C)(ii).
15. Failure by the Department to seek enforcement of this Settlement Agreement with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of this Agreement.
IMPLEMENTATION
16. This Settlement Agreement resolves all issues raised in Department of Justice Matter Number 202-42-16. It is limited to those issues and does not address Thirty-Five’s other obligations under the ADA, including physical access at any other facility or facilities owned, leased, or operated, now or in the future, by Thirty-Five. This Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of Thirty-Five, as well as any person acting in concert with Thirty-Five, and Thirty-Five has a duty to so notify all such principals, agents, and successors. This Agreement constitutes the entire agreement between the parties relating to this action, 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.
17. This Settlement Agreement is a public document. A copy of this document, or any information concerning its contents, may be made available to any person.
18. The person signing this document for Thirty-Five represents that he is authorized to bind Thirty-Five to this Agreement.
19. Any notice required to be given pursuant to this Settlement Agreement shall be sent by certified mail, return receipt requested, to the parties at the following addresses:
a. If by Thirty-Five to the Department, to:
John L. Wodatch
Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
with a copy to:
Lewis Bossing
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530b. If by the Department to Thirty-Five, to:
S. Ralph Gordon, Esq.
Gordon, Martin, Jones & Harris
49 Music Square West
Suite 600
Nashville, Tennessee 37203
20. The effective date of this Agreement is the date of the last signature below.
21. This Agreement will remain in effect for five years from its effective date.
Agreed and Consented to:
FOR THIRTY-FIVE, LLC FOR UNITED STATES OF AMERICA
By: __________________________
Harold Shedd
Partner
Thirty-Five, LLC
Date 9/26/02
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
By: __________________________
JOHN L. WODATCH, Chief
L. Irene Bowen, Deputy Chief
Lewis Bossing, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 305-8710
Date 9/30/02
ATTACHMENT
NOTICE
UNDER THE
AMERICANS WITH
DISABILITIES ACT
This notice is posted pursuant to an agreement between the U. S. Department of Justice and Thirty-Five, LLC, owner of the Magical Palace.
The Americans with Disabilities Act of 1990 (ADA) is a Federal civil rights law. It gives Federal civil rights protections to individuals with disabilities similar to those provided to individuals on the bases of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities to participate in State and local government services, enjoy places of public accommodation, gain and advance in employment, and have access to transportation and telecommunications.
The ADA identifies and prohibits actions that discriminate against people with disabilities. These generally include actions that exclude people or treat them unequally or separately from persons without disabilities. The law also requires public accommodations to remove architectural barriers to access where removal of such barriers is readily achievable. Further information about the Americans with Disabilities Act can be obtained by calling the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-833-610-1264(TDD).
Thirty-Five, LLC, as owner of the Magical Palace, affirms its commitment to comply with the ADA. The Magical Palace will not discriminate against any individual on the basis of disability in the full and equal enjoyment of its services and products. Any individual with a disability who requires assistance in accessing the services of the Magical Palace should contact ____________________.