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UNITED STATES OF AMERICA, Plaintiff, v. NCL (BAHAMAS) LTD., a Bermuda Corporation. Defendants. |
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CIVIL NO. _____________ |
The United States of America alleges:
1. This action is brought by the United States pursuant to Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181 - 12189, against NCL (Bahamas) Ltd., a Bermuda Corporation, and NCL America, LLC. (collectively “NCL”). NCL is a cruise ship operator offering cruises originating from, and terminating in, ports in the United States and throughout the world.
2. This Court has jurisdiction over this action under 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. §§ 1331 and 1345.
3. This Court has authority to grant equitable relief including declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and equitable relief, monetary damages, and civil penalties under 42 U.S.C. § 12188(b)(2).
4. Pursuant to 28 U.S.C. § 1391, venue is proper in the Southern District of Florida.
5. The Attorney General is authorized under Title III of the ADA to bring suit on behalf of the United States if he has reasonable cause to believe that an entity is engaged in a pattern or practice of discrimination under Title III, or that persons with disabilities have been discriminated against under Title III and this discrimination raises issues of general public importance. 42 U.S.C. § 12188(b)(1)(B).
6. NCL (Bahamas) Ltd. is a Bermuda corporation with its principal place of business in Miami, Florida.
7. NCL (Bahamas) Ltd. is a private entity within the meaning of the ADA, 42 U.S.C. §§12181 and 12184, and thus is subject to the requirements of Title III of the ADA, 42 U.S.C. §§ 12181 - 12189.
8. NCL America, LLC f/k/a NCL America, Inc. is a division of NCL (Bahamas) Ltd. NCL America is incorporated in Delaware and has its principal place of business in Honolulu, Hawaii. NCL America operates a U.S.-flagged cruise ship, Pride of America, which offers cruises of the Hawaiian Islands.
9. Upon information and belief, NCL owns and operates several cruise ships, each of which can accommodate approximately 1000 - 2400 passengers on a given cruise, including ships called Norwegian Star, Pride of America, Pride of Hawaii (formerly owned), Norwegian Wind (formerly owned), Norwegian Sky, Norwegian Sun, Norwegian Gem and Norwegian Epic. NCL offers hundreds of cruise trips that originate and terminate in United States ports.
10. Upon information and belief, the individuals named in this complaint purchased the tickets for their cruises from travel agents located in the United States or directly from NCL.
11. Each cruise ship that NCL owns and operates contains, inter alia, places of lodging, restaurants, bars, theaters, auditoriums, retail stores, gift shops, and recreational facilities.
12. NCL is a private entity that owns, leases or operates places of public accommodation and is, therefore, a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104.
13. NCL is a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce, and therefore is covered by Title III of the ADA as a specified public transportation service, 42 U.S.C. §§ 12184(a), 12181(10).
14. NCL engages in a pattern and practice of denying auxiliary aids and services to individuals with disabilities, including individuals who are deaf and hard of hearing, thus denying them the full and equal enjoyment of NCL’s goods, services, and facilities, in violation of 42 U.S.C. §§12182(a), 12184(a), 12182(b)(2)(A)(iii), and 12184(b)(2)(B), and 28 C.F.R. §§36.201(a), 36.303(a), and 49 C.F.R. § 37.5(f). Such discrimination also raises an issue of general public importance. 42 U.S.C. § 12188(b)(1)(B).
15. As part of its cruise packages, NCL offers shore excursions. NCL is liable under the ADA for providing auxiliary aids and services to individuals with disabilities, including individuals who are deaf and hard of hearing, who are on shore excursions purchased through NCL, when the shore excursions are operated by a company with which NCL has contractual arrangements. 42 U.S.C. § 12182(b)(1)(A)(i); 28 CFR §§ 36.202(a), 36.204.
16. As part of its cruise packages, NCL provides transfers on buses between the airport, the cruise ship, and hotels. NCL also provides bus transportation for shore excursions during the cruise.
17. NCL engages in a pattern and practice of denying accessible bus transportation to individuals with disabilities for transport between the cruise ship, hotel, and airport and for shore excursions, making passengers with disabilities wait much longer for accessible bus transportation than passengers without disabilities, and charging extra fees for accessible bus transportation, in violation of 42 U.S.C. §§ 12182(b)(2)(C) and 12182(b)(2)(D)(ii), 49 C.F.R. §§ 37.195, 37.101, 37.105, 37.5 and 28 C.F.R. § 36.301. Such discrimination also raises an issue of general public importance. 42 U.S.C. § 12188(b)(1)(B).
18. NCL is liable under the ADA for the accessibility requirements for the buses when those buses are used to transport NCL passengers in the United States and are owned by a company with which NCL has contractual arrangements. 42 U.S.C. § 12182(b)(1)(A)(i); 28 CFR §§ 36.202(a), 36.204.
Upon information and belief, in addition to the individuals named below, other individuals with disabilities may have been harmed by NCL’s actions.
Daryl Israel, Jessica Israel, Zachary Israel, Eliza Polk
19. In July 2005, Daryl Israel and his two children Jessica and Zachary, aged 14 and 16, and his friend, Eliza Polk, took an NCL cruise of the Hawaiian Islands on the Pride of America. They boarded the ship in Honolulu.
20. Upon information and belief, the Pride of America is a U.S.-flagged ship.
21. Daryl Israel, his children Jessica and Zachary Israel, and Eliza Polk are all deaf. They communicate mainly using American Sign Language. Each is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
22. On April 27, 2005, Mr. Israel called NCL, through a relay service, to request an interpreter on the cruise for himself and his party. The NCL employee who answered his call, named Mayra, advised Mr. Israel that NCL did not provide interpreters, and advised him to travel with a hearing companion. She then hung up, forcing Mr. Israel to call back and request to speak with a manager. He spoke with a supervisor named Alberto. Alberto apologized for Mayra’s behavior, and told Mr. Israel that he needed to make a written request and that his request would be considered on an individual basis.
23. Mr. Israel emailed NCL his request for an interpreter and for a visual door knocker, a vibrating alarm, and a TTY. Except for the TTY, he received none of these auxiliary aids and services. Because there were no TTY receivers on board the ship, he was unable to use the TTY in his cabin to contact any of the ship’s personnel or to obtain services on the ship. He repeated his request on multiple occasions on board the ship but without success.
24. Mr. Israel, his children, and Ms. Polk were denied the opportunity to enjoy the ships’ many goods and services, because of the lack of appropriate auxiliary aids and services, including nightly entertainment shows, specifically including: the Port and Shore Excursion Presentation, the Hawaii Port and Excursion Talk, the Sail Away Party, the Family Scavenger Hunt, the Mature Singles Meet, the Newlywed Game, Comedian Barry Jon Game, stand-up comedian Carl Wolfson, the Who Wants to Be a Bazillionaire show, the Star Seekers Show, the Late Night Improv Show, the Battle of the Sexes show for passengers, shore excursions, diving lessons, and the mandatory emergency lifeboat drill. Because they had no auxiliary aids or an interpreter, Mr. Israel and his party were unable to understand or participate in the ship’s activities, lectures, and performances.
25. Compared to hearing passengers, Mr. Israel and his party were subjected to inferior service while dining at the ship’s restaurants. They were seated in less desirable locations and were served much more slowly than other passengers. Servers either ignored their table or conferred with them without taking their orders. Mr. Israel observed later-arriving hearing passengers receiving their drink and food orders before he and his party received their orders.
26. NCL’s actions caused Daryl Israel, Jessica Israel, Zachary Israel, and Eliza Polk to suffer frustration, anxiety, and emotional distress.
Alan Weiser
27. Alan Weiser is deaf. He communicates by writing and lip-reading. He is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
28. Alan Weiser and his wife went on a cruise of the Hawaiian Islands on the Norwegian Star from August 3 to August 11, 2003. They boarded the ship in Honolulu.
29. In late June or early July 2003, after receiving his cabin assignment, Mr. Weiser contacted the NCL Special Needs Department, using his TTY phone and the Maryland Relay Service. He spoke with an NCL representative, told her he was deaf, and asked that communication devices for individuals who are deaf or hard of hearing be installed in his cabin, including, specifically, a closed caption television set. The NCL representative replied that all the onboard televisions had closed captioning. As he would be accompanied by his wife, who hears, Mr. Weiser advised NCL that he would not require the other room communication devices such as a vibrating alarm, visual signaling for fire alarm, clock alarm, doorbell, or a TTY, as long as he had a closed caption television set. He was assured by the representative that he would have a closed caption television set in his cabin.
30. When he boarded the ship, Mr. Weiser immediately went to his cabin to turn on the television set, but he was not able to locate the closed captioning controls. He contacted the ship’s information desk and asked for instructions but was informed that none of the television sets on board the ship had closed captioning.
31. Although NCL was aware of Mr. Weiser’s request while the ship’s departure was still four hours away, it made no effort to obtain a closed caption television set or caption converter from the shore.
32. Mr. Weiser alleges that during the week-long cruise he was miserable because each time he returned to the cabin to relax or to retire for the evening, he was denied the pleasure of accessing the movies or programs on television. His unhappiness affected his wife because she was aware that he was not enjoying the cruise.
33. Mr. Weiser could not participate in the Emergency Drill because he had no auxiliary aids to effectively transmit the aural instructions and alarms. He simply followed his wife to the drill site and remained there without understanding the instructions and directions issued during the drill.
34. NCL’s actions caused Alan Weiser to suffer frustration, anxiety, and emotional distress.
Phyllis Jacobs
35. Phyllis Jacobs uses a wheelchair. She is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
36. Phyllis Jacobs, her husband Gary, and their son Jay took a cruise of the Hawaiian Islands on the Pride of Hawaii from November 13 to November 20, 2006.
37. The Jacobs family reserved and confirmed wheelchair accessible transportation through their travel agent; bus transfers were included in the cruise package.
38. The shuttle bus from the Honolulu airport to the ship was not accessible and Ms. Jacobs was hand carried onto and off the bus.
39. At the end of the cruise, the bus provided to take the Jacobs family from the ship to their hotel was not accessible. They waited 1½ hours for an accessible bus.
40. The bus provided to take the Jacobs from their hotel to the Honolulu airport also was not accessible. The Jacobs family was forced to wait thirty minutes for an accessible bus.
41. On November 14, the Jacobs family disembarked to take a shore excursion in the town of Hilo. But the bus provided for the excursion was not accessible. An accessible bus eventually arrived after a Shore Excursion Desk staff member named Liz made a request.
42. On November 16, the Jacobs family took a shore excursion to Lahaina. However, the bus was also not accessible and Liz had to reschedule the Jacobs family to a later bus delaying their excursion.
43. On November 19, the Jacobs attempted to go on a shore excursion to East Kauai and Hanalei Lookout but were unable to do so because the unavailability of an accessible bus.
44. NCL’s actions caused Phyllis Jacobs and her family to suffer frustration, anxiety, and emotional distress.
Kimmarie Drown
45. Kimmarie Drown uses a wheelchair. She is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
46. Kimmarie Drown and her husband took a cruise of the Hawaiian Islands on the Norwegian Wind from March 11 to March 23, 2006.
47. Ms. Drown’s travel agent requested and confirmed wheelchair accessible bus transportation. However, to get from her hotel in Honolulu to the ship, Ms. Drown had to wait for 2½ hours in the heat for an accessible bus. The first three buses were not accessible. The fourth bus, arranged specifically to transport the Drowns, had a malfunctioning wheelchair lift forcing the Drowns to wait an additional thirty minutes.
48. Once on board the ship, the Drowns were unsuccessful in their attempts to book shore excursions during the first three days of the cruise because they had not provided the requisite three days advance notice to book an accessible bus. The Drowns had not been notified of this requirement.
49. The Drowns booked one shore excursion with the requisite three days advance notice but were unable to take the trip because the bus was not wheelchair accessible.
50. They were successful taking an excursion on the final day around Honolulu en route to the airport. However, the bus driver allowed Ms. Drown to get off at only one stop along the tour; he refused to operate the lift at the remaining stops because he claimed that the stops were too brief. Each stop was at least 30 minutes long.
51. NCL’s actions caused Kimmarie Drown to suffer frustration, anxiety, and emotional distress.
Kevin New
52. Kevin New uses a wheelchair. He is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
53. Kevin New took a cruise to the Caribbean on the Norwegian Sky with his wife and four children from December 14 to December 29, 2003.
54. The cruise package included transfers to and from the airport. NCL was aware that Mr. New used a wheelchair because during the booking process NCL asked for the dimensions of his wheelchair. The cruise started and ended in Puerto Rico. The bus provided by NCL to transport Mr. New from the airport in San Juan to the ship was not wheelchair accessible. Eventually, an accessible van, reserved for another passenger, became available but Mr. New was asked to pay a transfer fee of $35.00. Mr. New refused because he understood transfers were included in the cost of the package. After a lengthy argument, the van driver agreed to take him to the ship without the extra fee. Once on board, Mr. New lodged a complaint but was told by the information desk personnel that the reason he was not provided with accessible bus transportation was because he had not paid the extra fee for accessible transportation at the time of booking.
55. A few days later, an NCL representative suggested he privately book an accessible van for his return to the airport for a fee of $35.00, because if NCL booked the transfer he would be charged $65.00. At the end of the cruise, however, because of a health condition his daughter developed on the cruise, NCL provided a taxi to take Mr. New and his family to their hotel at no cost.
56. NCL’s actions caused Kevin New to suffer frustration, anxiety, and emotional distress.
Franz Soni
57. Franz Soni uses a wheelchair. He is an individual with a disability within the meaning of 42 U.S.C. § 12102, and its implementing regulation, 28 C.F.R. § 36.104.
58. In 2005, Franz Soni took a 17-day cruise on the Norwegian Sun from Miami to Los Angeles.
59. His package included bus transfers between the ship and airport in both cities. During the cruise, Mr. Soni was assured by the information desk that he would be provided with wheelchair accessible transportation from the ship to the airport in Los Angeles. But the bus provided by NCL was not accessible. The NCL employee in charge of transfers told Mr. Soni that he would have to make his own arrangements. Mr. Soni paid an extra fee for an accessible van to the airport.
60. In February 2005, Mr. Soni and a companion took a cruise to the Mexican Riviera on the Norwegian Star. The cruise departed from Los Angeles.
61. Mr. Soni’s package included transfers between the airport and ship. However, on his arrival in Los Angeles, Mr. Soni and his companion had to wait four hours at the airport for accessible transportation and almost missed their cruise. The bus initially provided to transport Mr. Soni and other passengers was not accessible.
62. In May-June 2008, Mr. Soni took a cruise to Alaska on the Norwegian Star, which departed from Seattle.
63. Mr. Soni’s package included transfers between the airport and ship. Three days before the cruise, Mr. Soni called and reminded NCL that he required accessible transportation. On arrival in Seattle, no accessible bus was available. After a 1½ hour wait, Mr. Soni was taken to the taxi area where he waited an additional half an hour for accessible transportation.
64. NCL’s actions caused Franz Soni to suffer frustration, anxiety, and emotional distress.
65. The United States incorporates by reference the allegations set forth in paragraphs 1 through 15 and 19 through 34 as if fully set forth herein.
66. NCL’s conduct described in paragraphs 19 through 34 constitutes discrimination on the basis of disability in violation of the ADA, 42 U.S.C. §§12182 and 12184, and its implementing regulation, 28 C.F.R. Part 36, because NCL’s conduct:
a. Discriminates against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation, in violation of 42 U.S.C. §§12182(a) and 12184(a), and 28 C.F.R. §36.201(a) and 49 C.F.R. §37.5(f);
b. Subjects an individual or class of individuals on the basis of a disability or disabilities to a denial of the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation, in violation of 42 U.S.C. §12182(b)(1)(A)(i) and 28 C.F.R. § 36.202(a);
c. Affords an individual or class of individuals on the basis of a disability or disabilities with an opportunity to participate in or benefit from goods, services, facilities, privileges, advantages or accommodations in a manner that is not equal to that afforded to others, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii) and 28 C.F.R. § 36.202(b);
d. Fails to make reasonable modifications in policies, practices, or procedures, when necessary to afford its goods and services to individuals with disabilities, and when doing so would not fundamentally alter the nature of the goods or services, in violation of 42 U.S.C. §§12182(b)(2)(A)(ii) and 12184(b)(2)(A), and 28 C.F.R. § 36.302(a) and 49 C.F.R. § 37.5(f);
e. Fails to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, when doing so would not fundamentally alter the nature of the good or service, or result in an undue burden, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii) and 12184(b)(2)(B), and 28 C.F.R. § 36.303(a) and 49 C.F.R. § 37.5(f); and
f. As a place of lodging that provides televisions in five or more guest rooms, fails to provide, upon request, a means for decoding captions on televisions, in violation of 28 C.F.R. § 36.303(e).
67. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 13, 16 through 18, and 35 through 64 as if fully set forth herein.
68. NCL’s conduct described in paragraphs 35 through 64 constitutes discrimination on the basis of disability in violation of section 302 of the ADA, 42 U.S.C. §12182, and its implementing regulations, 28 C.F.R. Part 36 and 49 C.F.R. Part 37, because NCL’s conduct:
a. Discriminates against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation, in violation of 42 U.S.C. §12182(a) and 28 C.F.R. §36.201(a);
b. Subjects an individual or class of individuals on the basis of a disability or disabilities to a denial of the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation, in violation of 42 U.S.C. §12182(b)(1)(A)(i) and 28 C.F.R. §36.202(a);
c. Affords an individual or class of individuals on the basis of a disability or disabilities with an opportunity to participate in or benefit from goods, services, facilities, privileges, advantages or accommodations in a manner that is not equal to that afforded to others, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii) and 28 C.F.R. § 36.202(b);
d. Fails to ensure that an individual with a disability receives service in an accessible bus when demand-responsive over-the-road bus service is provided, in violation of 42 U.S.C. §12182(b)(2)(D)(ii) and 49 C.F.R. § 37.195(b);
e. Fails to ensure that a bus used in a demand-responsive system is accessible, unless the system, when viewed in its entirety, meets the standard for equivalent service, in violation of 42 U.S.C. §12182(b)(2)(C) and 49 C.F.R. § 37.101(d), (e);
f. Refuses to permit an individual with a disability to disembark from the bus at all designated stops because the driver did not want to take the time to operate the lift, in violation of 42 U.S.C. §12182(b)(2)(D)(ii) and 49 C.F.R. § 37.167(e), (g); and
g. Imposes a surcharge on an individual with a disability or a group of individuals with disabilities to cover the costs of measures that are required to provide that individual or group with nondiscriminatory treatment required by the ADA, in violation of 42 U.S.C. §12182(b)(2)(A)(i), 49 C.F.R. § 37.5(d), and 28 C.F.R. § 36.301(c).
WHEREFORE, the United States prays that the Court:
A. Declare that NCL’s discriminatory practices as set forth above violate the Americans with Disabilities Act, 42 U.S.C. §§12101 - 12189, and the United States Department of Justice’s implementing regulation, 28 C.F.R. Part 36, and the United States Department of Transportation’s implementing regulation at 49 C.F.R. Part 37;
B. Enjoin NCL, its officers, agents and employees, and all other persons in active concert or participation with any of them, from discriminating on the basis of disability against any individual seeking to participate in a cruise on an NCL cruise ship;
C. Order NCL to institute and implement policies and procedures that will eliminate discrimination on the basis of disability, including providing auxiliary aids and services for individuals who are deaf or hard of hearing;
D. Order NCL to ensure that individuals with disabilities receive accessible service when demand-responsive over-the-road bus service is provided, on an equal basis with individuals without disabilities, including wait times and charges;
E. Award compensatory damages in an appropriate amount to all aggrieved persons, including but not limited to those named in this Complaint, for injuries suffered as a result of NCL’s failure to comply with the requirements of Title III of the ADA, 42 U.S.C. §§ 12181 et seq.;
F. Assess a civil penalty against the Defendants in the amount authorized by 42 U.S.C. §12188(b)(2)(C) and 28 C.F.R. § 36.504 to vindicate the public interest; and
G. Order such other appropriate relief as the interests of justice may require.
The plaintiff hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure.
Respectfully submitted,
ERIC H. HOLDER,
JR.
Attorney General
of the United States
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WIFREDO A. FERRER VERONICA HARRELL-JAMES |
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| Dated__________________ |
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| Dated:_______________ |
November 18, 2010