SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
and

THE OMAHA PERFORMING ARTS SOCIETY

re:

THE ORPHEUM THEATER

DJ# 202-45-77

I. Background

1. The parties to this Settlement Agreement (“Agreement”) are the United States of America (the “United States”) and the Omaha Performing Arts Society (“OPAS”), a public accommodation that leases and operates the Orpheum Theater (“Theater”), located in Omaha, Nebraska.
2. The United States received a complaint filed under Title III of the Americans with Disabilities Act of 1990 as amended (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. pt. 36 (2015).  The complaint alleged that OPAS discriminated against individuals with disabilities, including individuals who use wheelchairs, by denying them on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations that the Theater provides.  The United States makes the allegations set forth in this Settlement Agreement based upon the complaint and a site visit.
3. The Attorney General is authorized to investigate an alleged violation of the ADA and commence a civil action in the United States District Court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, and to seek injunctive relief.  42 U.S.C. §§ 12188(a)(2), (b); 28 C.F.R. § 36.503. 
4. The allegations made raise an issue of general public importance.  42 U.S.C. § 12188(b)(1)(B); 28 C.F.R. § 36.503.  This Agreement addresses the issues of accessible wheelchair spaces and companion seats.  It also addresses ticketing policies, counters, signs, and assistive listening devices for individuals with disabilities.  This Agreement does not address any other accessibility issues at the Theater not addressed herein.
5. Title III of the ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).  Title III of the ADA applies to a private entity that owns, leases, leases to or operates a place of accommodation, including a theater.  42 U.S.C.     §§ 12181(7)(C)-(D); 28 C.F.R. § 36.104 (place of public accommodation).
6. Places of public accommodation altered after 1992 are required to have been readily accessible to and usable by individuals with disabilities, to the maximum extent feasible.  If alterations were made after July 26, 1992, but prior to September 15, 2010, then the  facilities must comply with the 1991 ADA Standards for Accessible Design (“1991 ADA Standards”), 36 C.F.R. pt. 36, App. A; 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.406.  If existing elements, spaces, or common areas are altered, then each such altered element, space, feature, or area shall comply with the applicable provisions of 4.1.1 to 4.1.3 Minimum Requirements for New Construction.  1991 ADA Standards, § 4.1.6(1)(c).  These minimum requirements include the requirement for accessible wheelchair locations, accessible aisle seats and assistive listening devices.  1991 ADA Standards § 4.1.3(19)(a), (b).  Another alterations provision in the 1991 ADA Standards allows wheelchair seating locations to be clustered where dispersing wheelchair locations is technically infeasible.  1991 ADA Standards § 4.1.6(f).
7. In 2010, the Department of Justice (“Department”) amended the Title III regulation, including adopting the new ADA Standards for Accessible Design (“2010 ADA Standards”).  28 C.F.R. § 36.406.  The 2010 ADA Standards consist of the 2004 ADAAG and the requirements contained in 28 C.F.R. pt. 36, subpt. D.  28 C.F.R. § 36.104.
8. Altered facilities or elements that were altered before March 15, 2012, and that do not comply with the 1991 ADA Standards must be made accessible in accordance with the 2010 ADA Standards.  28 C.F.R. § 36.406(a)(5).
9. The 1991 ADA Standards specified the number of wheelchair seating spaces which were required.  For theaters with seating capacity over 500, the number of wheelchair spaces required is six (6), plus one (1) additional space for each total seating capacity increase of 100.  28 C.F.R. § 36.308(b); 1991 ADA Standards § 4.1.3(19)(a).
10. The 1991 ADA Standards set out several separate requirements for the placement of wheelchair spaces.  It required that wheelchair seating locations “be an integrated part of the fixed seating plan.”  It also required that wheelchair areas “be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.”  This required that wheelchair locations be dispersed around the facility.  It also required “at least one companion fixed seat be provided next to each wheelchair seating area.”  1991 ADA Standards §§ 4.1.3(19)(a), 4.33.1, 4.33.3.
11. The 1991 ADA Standards required altered elements to comply with new construction provisions.  The Standards required one percent (1%) of all fixed seats to be aisle seats with no armrests on the aisle side, or removable or folding armrests on the aisle side, and signs at movable armrest seating locations.  1991 ADA Standards § 4.1.3(19)(a).
12. The 1991 ADA Standards specified the types and numbers of assistive listening systems required in assembly areas.  The minimum number of assistive listening devices must be equal to four percent (4%) of the total number of seats, but never less than two devices.  1991 ADA Standards §§ 4.1.3(19)(b), 4.33.1, 4.33.7.
13. Public accommodations are required to remove architectural barriers that are readily achievable even when no alterations or renovations are planned.  42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).  OPAS agrees that the Theater contains certain architectural barriers to access, and that removal of some of these barriers is readily achievable  to the extent agreed to in Section III of this Agreement. 
14. A public accommodation is required to reasonably modify its policies, practices or procedures whenever necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.

II. Factual Allegations

15. The Orchestra (main) level of the Theater was renovated in 2002.  This renovation constitutes an alteration, within the meaning of Title III of the ADA.  42 U.S.C. § 12183(a)(2); 28 C.F.R. § 36.402.  OPAS agrees that the Theater must comply with the Title III alteration requirements. 

A. Accessible Wheelchair and Companion Seating Locations

16. For the purposes of accessible wheelchair seating locations, the Theatre has two types of events—events that use the orchestra pit/stage elevator floor for seating (“stage events”), and events that do not (“non-stage events”).  For those events that use the orchestra pit/stage elevator floor for seating, the United States alleges that OPAS did not provide a minimum of 28 accessible wheelchair locations for the 2,600 seating capacity, in violation of the 1991 ADA Standards §§ 4.1.3(19)(a) and 4.33.3.
17. The United States alleges that the wheelchair locations are not properly dispersed throughout the seating area in the orchestra, gallery, balcony, grand tier, loge and areas near the stage so as to provide individuals with disabilities with a choice of admission prices and lines of sight comparable to those for members of the general public.  1991 ADA Standards §§ 4.1.3(19)(a), 4.33.1, 4.33.3.
18. Wheelchair locations must have an adjacent fixed companion seating location.  The United States alleges that the required wheelchair locations do not have adjacent fixed companion seating locations.  The United States alleges that a minimum of 28 fixed companion seats were required, at least one adjacent to each wheelchair seat location.  1991 ADA Standards §§ 4.1.3(19)(a), 4.33.1, and 4.33.3.

    B. Armrests and Armrest Signage

19. The United States alleges that the 2,600 seating capacity available for viewing performances required a minimum of 26 removable armrest seat locations.  1991 ADA Standards §§ 4.1.3(19)(a), 4.27.4.

    C. Assistive Listening Devices

20. The United States alleges that OPAS did not have the required number of assistive listening devices (”ALDs”) at the time of the site visit, 1991 ADA Standards §§ 4.1.3(19)(b), 4.33.1, 4.33.7.  OPAS stated that the required number is now present and has posted the required signage, which OPAS agrees to maintain.

    D. Ticket Sales Counter

21. The United States alleges that the ticket sales counter located on the east side of the original ticket booth is too narrow.  1991 ADA Standards §§ 7.1 and 7.2(2).

    E. Ticketing

22. The United States alleges that OPAS has not made tickets available to individuals who request wheelchair seating locations in the same way as they are made available to others not requesting wheelchair seating locations, in violation of Title III of the ADA.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. 
23. OPAS denies the Factual Allegations set forth above and specifically denies the position of the United States that it was not compliant with 1991 ADA standards following its 2002 renovation.

    III. Corrective Actions

24. The parties agree that it is in their best interests, and in the public interest to resolve the Title III violations without litigation.

25. OPAS's participation in this Agreement will not constitute or be construed as an admission of liability, and both parties agree to comply with and be bound by the terms of this Agreement.
26. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further action in this matter, except as provided in Section V, Enforcement and Implementation.
27. For the purposes of Corrective Actions in this Agreement, the Parties agree to use the 2010 ADA Standards to remediate the alleged inaccessibility at the Theater, as set forth in this Agreement.
28. Independent Licensed Architect
    1. OPAS will retain an Independent Licensed Architect (“ILA”) knowledgeable about the architectural accessibility requirements of the ADA.  This ILA, paid by OPAS without regard to outcome and approved by the United States, must certify compliance with the applicable standard pursuant to 28 C.F.R. § 36.402(b) and the Appendix A to 28 C.F.R.          § 36.402 for (a) all of the modifications identified in Paragraphs 29 through 31 and the remediation of the alleged violations identified by the United States in Paragraphs 16 through 19, and (b) any other alteration, addition, or modification made by OPAS to the Theater during the term of this Agreement.
    2. In issuing certifications pursuant to this Agreement, the ILA will prepare reports with photographs identifying that the alleged violation has been remediated and will use the certification form at Exhibit A.  A separate report with pictures and a separate certification form will be used for the remediation of each violation identified in Paragraphs 29-31 and any element that has been or will be altered pursuant to this Agreement.  The ILA will be considered a neutral inspector for purposes of issuing certifications of compliance and will be available to the United States, with notice to OPAS, to discuss findings in the reports, photographs, and certifications.  The United States may also, in its discretion and upon notice to OPAS, provide technical assistance to the ILA throughout the term of this Agreement.
    3. OPAS will submit certifications by the ILA along with reports required by this Agreement.
    4. The United States agrees that OPAS may utilize as the ILA, HDR, Inc. located at 8404 Indian Hills Drive, Omaha, Nebraska, 68114, for compliance with Paragraphs 28(a), (b) and (c).  The United States reserves the right to require a change in the ILA if HDR does not comply with Paragraphs 28(a), (b) and (c).

29. Wheelchair and Companion Seating Locations.  Within fourteen (14) months  of the effective date of this Agreement, OPAS will provide twenty (20) wheelchair spaces, and provide companion seats in a number equal to the number of wheelchair seating spaces in the locations noted in Exhibit “B” to this Agreement, for the currently 2600 available seats.

30. Designated Aisle Seats.  Within fourteen (14) months of the effective date of this Agreement, OPAS will do the following:
    1. Provide twenty (20) designated aisle accessible seats in the locations noted in Exhibit “B” to this Agreement.  Where designated aisle seats have armrests on the aisle side of seats, the armrests will be folding or retractable.  2010 ADA Standards §§ 221.4, 802.4.
    2. Identify each designated aisle seat by a sign or marker that complies with 2010 ADA Standards, §§ 221.4, 802.4.

31. Permanent Lift.  Within fourteen (14) months of the effective date of this Agreement, OPAS will install a permanent lift to provide access to the stage for individuals with disabilities, in compliance with 2010 ADA Standards §§ 206.7, 410.  The permanent lift will be located as noted in Exhibit “B” to this Agreement.  In addition, OPAS will provide an accessible route from the orchestra floor to the lift location to the stage floor, in compliance with the ADA Standards.

32. Assistive Listening Devices.  OPAS indicated they maintain the required number of ALDs in working condition for individuals who request them.  OPAS agrees to keep the ALDs in good working condition.
33. Plan Approval.  Unless otherwise specifically agreed to herein, within ten (10) months of the effective date of this Agreement, OPAS will submit any additional architectural drawings of required items in paragraphs 29 through 31, other than currently shown on Exhibit “B” to this Agreement, to the ILA for approval, prior to undertaking any work.  OPAS will provide all necessary information requested by the United States to determine whether any additional submitted plans comply with this Agreement.
34. Ticketing, Pricing Policies, and Unsold Tickets.  Within sixty (60) days of the effective date of this Agreement, OPAS’s accessible seating and ticket policies and procedures will comply with 28 C.F.R. § 36.302(f).  For all events at the Theater, any unsold tickets for accessible seating, including wheelchair spaces, shall be released to the general public if tickets in the same price category sell out for general public sales.  28 C.F.R. §36.302(f)(5).
35. Designated ADA Coordinator and Training.  Within  one hundred twenty days (120) days of the effective date of this Agreement, OPAS will designate one or more people who are fully trained in the ADA generally and with respect to the provisions of this Agreement in particular to coordinate efforts to assist individuals with disabilities in accessing the Theater, including the purchase of tickets.  OPAS will have at least one fully trained representative available, either in person at the Theater or by telephone, on the day of every event and for the duration of each event.  OPAS will train Front of House staff with respect to OPAS's policies and procedures of the Theater, accessible locations, tickets, and ticket prices.  Theater's Front of House staff will be authorized to modify policies in a particular situation to resolve complaints by individuals with disabilities.  For any question related to accessibility that the Front of House staff has not been trained or cannot handle, the ADA Coordinator will be available immediately by telephone to resolve the complaint.
36. Publicity.  OPAS will continue to publicize the availability and locations of wheelchair seating, companion seating, designated aisle seating, and assistive devices in all event schedules, pamphlets, programs, advertisements, and publications, including the Theater's websites that contain information concerning seating at the Theater. 

IV. Reporting and Monitoring

37. Within six (6) months of the effective date of this Agreement, and every six (6) months thereafter, until the Term of this Agreement expires under Paragraph 46, OPAS and the ILA will submit written reports to the Department summarizing its actions pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, ILA certifications, work orders, and notices published in the newspaper.
38. Within six (6) months of the effective date of this Agreement, and every six (6) months thereafter, until the Term of this Agreement expires under Paragraph 46, OPAS will submit to the United States all training materials required under the terms of this Agreement, with a list of all trainees including names and dates training was completed for each employee pursuant to paragraph 35.
39. Within  three (3) months of the effective date of this Agreement, OPAS will submit to the United States draft revised ticketing policies already reviewed by the ADA coordinator.  The United States will review such policies and provide comments to OPAS within sixty (60) days of the receipt of such policies.
40. Within six (6) months of the effective date of this Agreement, and every six (6) months thereafter, until the Term of this Agreement expires under Paragraph 46, OPAS and the ILA will submit to the United States an “Architectural Report,” detailing its compliance with those obligations referenced below.  This Architectural Report will include, but is not limited to:
    1. Final construction drawings demonstrating the as-built condition of all wheelchair seating areas required to be provided pursuant to the Agreement; and
    2. Detailed statements and photographs certifying that all modifications, additions, and alterations to the wheelchair seating areas required under the terms of this Agreement have been completed.
41. Within six (6) months of the effective date of this Agreement, and every six (6) months thereafter, until the Term of this Agreement expires under Paragraph 46, OPAS will submit to the United States a “Seating and Ticketing Report” detailing its compliance with those obligations referenced below.  This Seating and Ticketing Report will include, but is not limited to:
    1. A detailed description of the number, location, and ticket price of each ticket sold for seating in each of the wheelchair seating locations referenced in this Agreement;
    2. OPAS will specify whether each such wheelchair seat or companion seat
       was:
       1. sold to an individual who uses a wheelchair;
       2. sold to the companion of an individual who uses a wheelchair;
       3. subject to any other conditions attached to the sale or use of the wheelchair seating ticket.

42. Upon reasonable advance notice to OPAS, and until the Term of this Agreement expires under paragraph 46, the United States and any person acting on its behalf (including consultants) will, upon written notice to Arnold Reeves, Senior Vice President and CFO of OPAS (or his successor), be permitted reasonable access to the Theater to review compliance with this Agreement at the Theater during performances and events.

    V.  Enforcement and Implementation

43. Enforcement.  The United States may review compliance with this Agreement at any time, until the Term of this Agreement expires, and may enforce this Agreement if the United States believes that it or any requirement herein has been violated.  If the United States believes that this Agreement or any portion of it has been violated, it will raise such concerns with OPAS in writing and the parties will attempt to resolve the concerns in good faith.  In the event that the United States believes that OPAS has violated any provision of this Agreement, the United States will provide written notice of such violation.  If the United States is not satisfied with OPAS' resolution of the issues raised, it may institute a civil action in federal district court to enforce the terms of this Agreement and Title III and may, in such action, seek any relief available under the law.  Failure by the United States to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce any provisions or deadlines of this Agreement.
44. Complaints.  During the term of this Agreement, OPAS will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that OPAS discriminated against them on the basis of disability or that an individual was discriminated against related to accessibility at the Theater.  Such notification must be provided in writing via overnight delivery within fifteen (15) days of when OPAS has received notice of the allegation and will include at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by OPAS relevant to the allegation.
45. Notices.  All notices, reports, or other such documents required by this Agreement will be sent to the Parties by fax, email, or via overnight delivery to the following addresses or to such other person as the parties may designate in writing in the future:

    For notices to the United States:

    Rebecca Bond, Chief
    Robert J. Mather, Attorney
    DJ# 202-45-77
    Disability Rights Section
    Civil Rights Division      
    U.S. Department of Justice
    1425 New York Avenue, N.W. Washington, DC 20005
    (202) 307-2236 (telephone) 
    (202) 616-6862 (facsimile)

    For notices to OPAS:

    Arnold Reeves
    Senior Vice President and CFO
    Omaha Performing Arts Society
    1200 Douglas Street
    Omaha, NE  68102
    (402) 661-8461 (telephone) 
    888-679-7757 (facsimile)

46. Term of the Agreement.  The Agreement will become effective as of the date of the last signature below, (“Effective Date”), and will remain in effect for eighteen (18) months from that date.
47. Entire Agreement.  This Agreement, and any appendices attached, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this Agreement or attachments, will be enforceable regarding the matters raised herein.
48. Copies Available.  A copy of this Agreement will be made available by the United States or OPAS to any person upon request.
49. Other Potential Violations.  This Agreement does not purport to remedy other potential violations of the ADA by OPAS.
50. Binding Effect.  This Agreement will be binding on OPAS, its agents and employees.  In the event OPAS seeks to transfer, sell or assign all or part of its interest in the Center, and the successor or assign intends on carrying on the same or similar use of the Center, as a condition of sale OPAS will, prior to finalizing the transfer, sale or assignment, obtain the written consent of the successor, buyer or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.  OPAS will send a copy of the written consent within thirty (30) days of the finalization of the transfer, sale or assignment.
51. Signatory.  A signatory to this document in a representative capacity for OPAS represents that he or she is authorized to bind that party to this Agreement.