BACKGROUND1. This matter was initiated by a review conducted by the United States Department of Justice (the "Department") concerning compliance by Mel Tillis Theater, Inc. (the “Company”) in the operation of a theater located at 2527 State Highway 248, Branson, Missouri (the “Theater”), 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 has determined that certain aspects of the Theater premises constructed since Title III’s effective date violate the ADA Standards for new construction. The Company does not agree to the Department’s determination, but, without admitting any violations or liability, the Company is prepared to compromise and settle this matter by taking certain steps as set out herein.
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 Theater 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). Construction of the theater was completed by the Company after title III’s effective date. The Department’s compliance review began while the Company owned the Theater.
4. The Company sold the Theater to GDTCG1, L.L.C. (“GDTCG1"), on July 10, 2002. GDTCG1 is a limited liability company which leases the Theater premises both to the Company and to the Assemblies of God church (the “Church”) of Springfield, Missouri. The Company’s lease will terminate on January 31, 2003, after which time the Church will be the sole lessee of the Theater. GDTCG1 intends to donate the Theater to the Church on or about July 10, 2003. The Company warrants that, upon information and belief, the Theater will be operated by a religious organization on January 1, 2003.
5. The Company states that it is committed to full compliance with the Americans with Disabilities Act, as determined by the Department. To demonstrate that commitment, the Company has agreed 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 Theater’s goods and services. In light of this agreement, the parties have determined that Department of Justice Matter Number 202-43-20 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.
AGREEMENT6. The Company hereby agrees to the following:
a. to refrain from making alterations to the Theater 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. to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable; and
c. not to discriminate against individuals on the basis of disability in the full and equal enjoyment of the goods and services of the Theater.7. Within 30 days of the effective date of this Settlement Agreement, the Company shall present to the Department a set of detailed specifications, architectural plans, or other written or illustrative material, displaying proposed modifications to the Theater, to be undertaken as follows:
Parking
a. Ensure that all accessible parking spaces are so designated by signage complying with ADA Standards §§ 4.1.2(5) and 4.6.4.
Entrances and Exits
b. Modify the ramp outside the cross aisle house left exit door so that it has a slope no greater than 1:12, in compliance with ADA Standards §§ 4.1.3(9), 4.3.7, and 4.8.2.
Theater Lobby
c. Modify the main ticket counter, or provide an auxiliary counter in close proximity to the main 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).
d. Reconfigure the main concession counter, or provide an auxiliary counter in close proximity to the main 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).
e. Reconfigure the food service line for the main concession counter so that the area between the counter and the rail marking the designated food service line is at least 36 inches wide, in compliance with ADA Standards § 5.5.
f. Ensure that signage compliant with ADA Standards §§ 4.1.3(16)(b) and 4.30 is posted at the drinking fountain directing patrons to the accessible concession counter where they may obtain drinking water.
g. Remount at least one of the public pay telephones so that the coin slot is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(17), 4.2.6, and 4.31.3.
h. Modify the buzzer to the Theater office suite 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.
i. Modify one of the sales counters in the gift shop, or provide an auxiliary counter in close proximity to one of the sales counters, 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).Women's Toilet Room
j. Modify the toilets in the two designated accessible stalls so that the centerline is exactly 18 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).
k. Modify the rear grab bars in the two designated accessible toilet stalls so that they are at least 36 inches long, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Figures 30(c) and 30(d).
l. Remount the side grab bars in the two designated accessible toilet stalls so that the ends of the grab bars are 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).
m. Remount the toilet paper dispensers in the designated accessible toilet stalls so that they are located below the grab bars and so that the front of the dispenser is no more than 36 inches from the rear wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).
n. Modify one of the lavatories not located in an accessible toilet stall so that the clear floor space underneath the lavatory is between 17 and 19 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.19.3, 4.22.6, and Figure 32, and so that the knee space under the lavatory is at least 27 inches high, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.
o. Modify the mirror at the modified lavatory so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.6, and 4.22.6.
p. 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, 4.27.3.Men's Toilet Room
q. Modify the toilet in the designated accessible stall so that the centerline is exactly 18 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).
r. Modify the rear grab bars in the two designated accessible toilet stalls so that they are at least 36 inches long, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Figures 30(c) and 30(d).
s. 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 Fig. 30(d).
t. Remount the toilet paper dispenser in the designated accessible toilet stall so that it is located below the grab bar and so that the front of the dispenser is no more than 36 inches from the rear wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).
u. 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.
v. Modify one of the lavatories not located in an accessible toilet stall so that the clear floor space underneath the lavatory is between 17 and 19 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.19.3, 4.22.6, and Figure 32, and so that the knee space under the lavatory is at least 27 inches high, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.
w. Modify the mirror at the modified lavatory so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.6, and 4.22.6.
x. 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, 4.27.3.Theater Auditorium
y. Adjust the doors from the lobby to the auditorium vestibule, and from the vestibule to 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.
z. Ensure that fifty-two (52) complete headsets and receivers are provided for use with the auditorium's assistive listening system.
aa. 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).
bb. Create twenty-eight (28) designated fully-accessible wheelchair seating areas, including a fixed companion seat adjacent to each of the designated accessible wheelchair seating areas, in compliance with ADA Standards §§ 4.1.3(19)(a) and 4.33.3. No more than two of the designated wheelchair seating areas shall be adjacent to each other. At least eight (8) of the designated accessible wheelchair seating areas shall be installed in the back row of the auditorium seating.
cc. Install fourteen (14) designated accessible aisle seats, either without armrests on the aisle side or with removable or folding armrests on the aisle side, in compliance with ADA Standards §§ 4.1.3(19)(a) and 4.33.8. All steps taken to correct the ADA violations at the Theater enumerated above shall be completed within 30 days of the Department’s approval of the Theater’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.
9. Subject to paragraph 9 below, within 90 days of the effective date of this Agreement, the Company 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 the Company has taken to fulfill these obligations. The certification shall also identify all continuing obligations under this agreement, and describe how the Company will meet those obligations. The Company will allow representatives of the Department access to the Company premises so that the Department may monitor compliance with the certification and this Agreement.
10. In the event that the Company 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, the Company 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 the Company for obtaining the permit or approval, or is denied, the Company 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.
11. The Company shall implement the following accessible seating policies:a. Individuals without disabilities shall not be placed in the designated wheelchair seating areas unless all other seating is full.
b. The Company 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.The Company shall inform and train all staff responsible for taking reservations and seating patrons regarding these seating policies.
12. Within 30 days of the effective date of this Agreement, the Company shall prominently post the attached “Notice” at all ticket counters. Copies of the Notice will also be made available to any individual upon request.
13. The United States alleges that aspects of the Theater other than those designated to be corrected in ¶ 7 above also violate the ADA Standards for new construction. The United States has chosen not to address these violations in this Agreement. For example, the United States alleges that the aspects of the backstage areas of the Theater, such as the dressing rooms for singers and band members, violate the ADA Standards for new construction. The Company asserts that the backstage areas will be used solely by Company employees and by the Church during the pendency of the Company’s lease with GDTCG1. At any time during the pendency of this Settlement Agreement, should the Company book any other performing acts unaffiliated with the Company into the Theater, or enter into negotiations with any third party to lease the Theater’s premises for any use, the Company agrees to notify the United States by certified mail at the address stated in ¶ 21 below. The United States may choose to address the ADA violations in the backstage areas of the theater with the Company upon receipt of such notice.
14. In consideration of the promises made in ¶¶ 6 through 13 above, the Department agrees to close its compliance review under Matter Number 202-43-20 and to refrain from bringing a civil action against the Company.
ENFORCEMENT15. 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 Theater auditorium. If the Department believes that the Company has violated this Agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from the Company. 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). The Company reserves any and all defenses it may have to any such civil action. The Company’s agreement to perform the work set out herein is not and shall not be construed as an admission that: (i) the Company is not in compliance with the ADA, ADA Standards, or other applicable law; or (ii) failure to do any such work results in a violation of the ADA, ADA Standards, or any other applicable law or regulation.
16. 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.
IMPLEMENTATION17. This Settlement Agreement resolves all issues raised in Department of Justice Matter Number 202-43-20. It is limited to those issues and does not address the Company’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 the Company. This Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of the Company, as well as any person acting in concert with the Company, and the Company 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.
18. The United States alleges that the Theater contains violations of the ADA Standards for new construction and alterations other than those designated to be remedied by paragraph 6 above, but has chosen not to address these violations in this Agreement. The Company is nevertheless encouraged to correct these additional violations.
19. 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.
20. The person signing this document for the Company represents that he is authorized to bind the Company to this Agreement.
21. 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 the Company 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 the Company, to:
Robert C. Goodrich, Jr., Esq.
Stites & Harbison, PLLC
SunTrust Center, Suite 1800
424 Church Street
Nashville, Tennessee 37219-237622. The effective date of this Agreement is the date of the last signature below.
23. This Agreement will remain in effect for two years from its effective date.
Agreed and Consented to:
FOR MEL TILLIS THEATER, INC. FOR UNITED STATES OF AMERICA
__________________________
Lonnie M. Tillis, President
Date 7-24-02
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 8-1-02
ATTACHMENT
NOTICE
UNDER THE
AMERICANS WITH
DISABILITIES ACT
This notice is posted pursuant to an agreement between the U. S. Department of Justice and the Mel Tillis Theater.
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, to 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 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).
The Mel Tillis Theater affirms its commitment to comply with the ADA. The Mel Tillis Theater 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 Mel Tillis Theater should contact ____________________.
Cases & Matters by ADA Title Coverage | Legal Documents by Type & Date | archive.ADA.gov Home Page
December 17, 2002