BACKGROUND AND JURISDICTION
1. The parties to this Agreement are the United States of America and Midway Realty Corporation, a Delaware corporation (“Respondent”).
2. The Respondent owns and operates “The Movies at Midway,” a fourteen (14) screen cinema complex located at 29 Midway Shopping Center, Rehoboth Beach, Delaware.
3. The Respondent is a public accommodation subject to the requirements of title III of the Americans with Disabilities Act of 1990 (“ADA”) because it is a private entity that owns and operates The Movies at Midway, a place of public accommodation. See 42 U.S.C. § 12181(7)(C); 28 C.F.R. § 36.104.
4. This matter was initiated by a complaint filed by Donna L. Sorkin (“Complainant”) with the U.S. Department of Justice (“Department”) against the Respondent. The Complaint was investigated by the Department under the authority granted by § 308(b) of the ADA, 42 U.S.C. § 12188.
5. The Complaint alleges that the Respondent violated title III of the ADA, 42 U.S.C. §§ 12181-12189, and the Department of Justice’s implementing regulation, 28 C.F.R. Pt. 36. Specifically, the Complaint alleges that, on January 1, 1998, the Complainant was told by a theater employee that the Midway Palace Theater at the Midway Shopping Center, Highway 1, Rehoboth Beach, Delaware (“Theater”), did not have an assistive listening system (“ALS”), which is necessary to provide effective communication for persons who are hard of hearing. As a result, the Complainant was unable to attend the movie she had planned to see.
6. In response to the Department’s inquiry, the Respondent informed the Department that, prior to September 1998, the theater complex that is the subject of this complaint was called the “Midway Palace Theater” and consisted of seven (7) screens with a total of 2097 seats. No assistive listening system was available. Most of the complex was torn down in September 1998. The Theater was rebuilt and opened as “The Movies at Midway” in May 1999.
7. As a result of the new construction and renovation undertaken by the Respondent, the fourteen (14) theaters comprising The Movies at Midway currently contain a total of 2153 seats. As part of this process, the Respondent purchased and installed an “Ultra Stereo Infrared Hearing Impaired System” (“System”) in each newly constructed and/or renovated auditorium in the complex. In addition, the Respondent purchased fourteen (14) “Ultra Stereo Infrared Headsets” for patrons to use in connection with the System.
8. In each new theater where an audio-amplification system was installed and in each existing theater where alterations to an existing audio-amplification system were made, the Respondent had the obligation to provide an assistive listening system with receivers equal in number to four percent (4%) of available seats, in compliance with the ADA Standards for Accessible Design (“Standards”). 42 U.S.C. § 12183(a); 28 C.F.R. §§ 36.401, 36.402, and 36.406(a), and Standards §§ 4.1. 3(19)(b) and 4.1.6(1)(b). Under the Standards, the Respondent should have purchased eighty-six (86) receivers (that is, 4% of 2153). However, invoices provided by the Respondent indicate that the Respondent purchased fourteen (14) receivers, seventy-two (72) fewer receivers than required by the Standards.
9. The parties desire to settle this matter without resorting to litigation and have, therefore, entered into this Settlement Agreement, the terms of which follow:
AGREEMENT10. The Respondent agrees that, within thirty (30) days of the Effective Date of this Agreement, as defined in paragraph 18 below, it will purchase and make available for the use of its patrons twenty-nine (29) additional Infrared Headsets.
11. The Respondent shall immediately take all steps necessary, including, but not limited to, staff training, to ensure that appropriate members of The Movies at Midway staff:A. Are informed of the availability of the ALS system;
B. Know where the receivers are located, so that patron requests can be honored promptly; and
C. Are familiar with how the ALS operates, so that they can provide basic instruction to the patrons of The Movies at Midway, respond to customer questions or complaints, and conduct testing of the system.12. The Respondent agrees that, within thirty (30) days of the Effective Date of this Agreement, it will:
A. Implement formal policies and procedures to ensure that all transmitters in The Movies at Midway are functioning properly, and that all receivers are adequately charged and functioning properly;
B. Establish formal policies and procedures requiring that appropriate staff report any problems with the ALS equipment to the manager responsible for the maintenance of the ALS system;
C. Establish formal policies and procedures requiring that, upon discovery that a transmitter or receiver needs repair, action be taken regarding the transmitter on the next business day, and that action be taken regarding the receiver promptly, to ensure that the equipment will be replaced or repaired as soon as practicable; and
D. Establish formal policies and procedures requiring that the public be given notice if the assistive listening system cannot be used in any of the theaters comprising The Movies at Midway because the ALS or any part of the system is in need of replacement or repair. The notice shall be given through The Movies at Midway’s pre-recorded message line, on any website containing the viewing schedule for The Movies at Midway, when changes at such website can be made by the Respondent or at the Respondent’s request, and over the Respondent’s regular phone system for communicating with the public, and shall include the following:1. A statement that the ALS is not functioning that identifies the specific theater location(s) affected; and
2. The estimated date that the affected portion of the ALS a will be functioning.E. Establish formal policies and procedures requiring that The Movies at Midway issue a free movie pass and full refund to any patron, and his or her companion, who arrives at a theater but cannot attend a particular showing of a film because the assistive listening system is not in working order, if notice was not provided in The Movies at Midway’s pre-recorded message, as required by paragraph 12.D.
F. Establish formal policies and procedures requiring that theater staff monitor requests for and usage of ALS receivers and keep a record of each instance in which the number of receivers requested at any given time exceeds the number of receivers available for distribution to theater patrons. At the end of each year this Agreement is in place, beginning on the date that is one (1) year from the Effective Date of this Agreement, the Respondent shall provide a list of such instances, if any, to the Department at the address set forth in the notices paragraph below.
G. The Respondent agrees to pay a total of Five Hundred and 00/100 Dollars ($500) to the Complainant as full and final settlement of the complaint set forth in paragraph 5 above. The Complainant shall execute a release in the form attached as Exhibit A hereto. Within fifteen (15) days of the Respondent’s receipt of the Complainant’s fully executed release, the Respondent shall pay the above amount to the Complainant at the address specified by the Complainant.
ENFORCEMENT13. At any time, the Department may request information from the Respondent regarding matters covered by this Agreement. The Respondent shall provide a written response within fifteen (15) days of its receipt of the request.
14. The Department of Justice may review compliance with this Agreement at any time. If the Department believes that this Agreement or any of its requirements has been violated, it may institute a civil action in federal district court to enforce this Agreement or the requirements of title III, following written notice to the Respondent of possible violations and a period of fifteen (15) days in which the Respondent has the opportunity to cure the alleged violations.
15. Failure by the Department to enforce this entire Agreement or any provision thereof shall not be construed as a waiver of its right to do so with regard to any other provisions of this Agreement.
16. This Agreement shall be enforceable in United States District Court for the District of Columbia.
MISCELLANEOUS PROVISIONS17. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person by the Respondent or the Department upon request.
18. This Agreement shall become effective as of the date of the last signature below (the “Effective Date”) and shall expire on the date that is three (3) years from the Effective Date.
19. This Agreement shall be binding on the Respondent, its agents, and employees. In the event Respondent 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 sale Respondent shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
20. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained within this Agreement shall be enforceable.
21. This Agreement is limited to the facts set forth above, and does not purport to remedy any other potential violations of the ADA or any other federal, state, or local law. This Agreement does not affect the Respondent’s continuing responsibility to comply with all aspects of the ADA.
22. Any signatory executing this Agreement in a representative capacity represents that he/she is authorized to bind the represented entity to this Agreement.
23. Any notices, reports, or other such documents required by this Agreement shall be sent to the parties by fax or by hand delivery at the following addresses or to such other person as the parties may designate in writing in the future:
For notices to the Department:
John L. Wodatch, Chief
Attention: Anne Marie Pecht
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
1425 New York Avenue, NW
Washington D.C. 20005
(202) 307-2891
(202) 305-9775 (facsimile)
For notices to Midway Realty Corporation:
Richard H. Derrickson, President
Midway Realty Corporation
29 Midway Shopping Center
Rehobeth Beach, DE 19971
(302) 645-9511
(302) 645-1947 (facsimile)
With copies to:
David H. Johnson, Controller
Midway Realty Corporation
29 Midway Shopping Center
Rehobeth Beach, DE 19971
(302) 645-9511
(302) 645-1947 (facsimile)
FOR THE RESPONDENT:
FOR THE UNITED STATES:
____________________________________
RICHARD H. DERRICKSON
President
Midway Realty Corporation
29 Midway Shopping Center
Rehobeth Beach, DE 19971
04-26-04
Date
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
By:_________________________________
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
ANNE MARIE PECHT ,Trial Attorney
U.S. Department of Justice
Civil Rights Division
Disabilty Rights Section- NYA
950 Pennsylvania Avenue., N.W.
Washington , DC 20530
05-05-04
Date
EXHIBIT A
WAIVER AND RELAESE OF CLAIMS
I, __________________________________, hereby agree that, in consideration of Midway Realty Corporation's agreement to the terms set forth in the Settlement Agreement with the UNited States Department of Justice, I hereby release Midway Realty Corporation and all of it's officers, agents, directors, employees, board members, and representatives as well as any entities, sucessors, and assigns, without limitation, from any and all legal claims arising from or related to the facts and circumstances described in the Settlement Agreement resolving Department of Justice complaint number DJ # 202-15-32 under Title III of the Americans with Disabilities Act. This includes, but is not limited to, all claims for monetary or equitable relief that I may have under federal, state, or local law. I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents, and choose to sign it of my own free will and not under duress.
AGREED TO AND SIGNED THIS __________ DAY OF _________________, 2004
________________________________________
Donna L. Sorkin
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posted February 1, 2005