SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
RESORT EXPRESS,INC., UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990
DEPARTMENT OF JUSTICE NUMBER 202-77-37
INTRODUCTION
1. This Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”) and Resort Express, Inc. (“Respondent”), a corporation formed under the laws of the State of Utah (“the Parties”).
2. This Agreement resolves an investigation conducted by the United States Department of Justice (the “Department”) of the fares Respondent charges for transportation services under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (the “Act” or the “ADA”).
3. The resolution of this matter through this Agreement serves the Parties’ interests in ensuring that Respondent makes its transportation services readily accessible to and usable by indviduals with disabilities by charging fares for services used by individuals with disabilities that are equivalent to the fares for services used by non-disabled individuals.
4. The Parties to this Agreement are the United States and Resort Express, Inc.
RESORT EXPRESS, INC.5. Resort Express, Inc. is a transportation company located in Park City, Utah, that does business as All Resort Express and has a principal place of business at 1821 Sidewinder Dr., Park City, UT 84060.
6. Respondent is a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce, within the meaning of 42 U.S.C. §§ 12181(1), 12181(6), and 12184(a), and their implementing regulations at 49 C.F.R. Parts 37 and 38.
7. Respondent operates a demand responsive system that offers specified public transportation within the meaning of 42 U.S.C. §§ 12181(3) and 12181(10) and their implementing regulations at 49 C.F.R. § 37.3.
8. The ADA requires new vans with a seating capacity of eight or more persons (including the driver) that are solicited for acquisition for use solely in a demand responsive system after August 25, 1990 to be readily accessible to persons with disabilities, unless the entity can demonstrate that its system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service provided to the general public. 42 U.S.C. § 12184(b)(3); 49 C.F.R. § 37.103(a),(c). The same is true of new vans with a seating capacity of fewer than eight persons (including the driver) that are solicited for acquisition after February 25, 1992, whether or not they are used in a demand responsive system. 42 U.S.C. § 12184(b)(5); 49 C.F.R. § 37.103(d).
9. As the term applies to the facts of this matter, an “equivalent level of service” is service available to individuals with disabilities, including individuals using wheelchairs, that is provided in the most integrated setting appropriate to the needs of the individual and is equivalent to the service provided others with respect to response time, fares, geographic area of service, hours and days of service, availability of information, reservations capability, any constraints on capacity or service availability, and restrictions priorities based on trip purpose. 49 C.F.R. § 37.105.
BACKGROUND10. This matter was commenced when the Department received a complaint alleging a violation of the ADA. Complainant Steve Bailey, an individual with a disability who uses a wheelchair for mobility, alleged that on August 19, 2001, and again on August 22, 2001, he and his spouse were charged excessive fares for transportation in an accessible vehicle between the airport in Salt Lake City and a hotel in Park City, Utah. The complaint was investigated by the Department under the authority granted by Section 308(b) of the ADA, 42 U.S.C. § 12188(b).
11. Respondent operates transportation services from various boarding locations in the Salt Lake City greater metropolitan area to Salt Lake City International Airport and other designated areas in Utah.
12. Since August 25, 1990, Respondent has purchased approximately sixteen new vans and two used vehicles that are not wheelchair accessible, and one used accessible van that is wheelchair accessible. Respondent retains all these vehicles in its current inventory.
13. As of August 19 and 22, 2001, Respondent charged $27.00 per passenger for a one-way trip in its non-accessible vans and $90.00 for one to four passengers for a one-way trip in its accessible van.
14. The Department of Justice asserts that by purchasing vans after August 25, 1990 that are not accessible and thereafter charging Mr. Bailey a higher per passenger fare than that charged a customer without disabilities, Respondent discriminated against Mr. Bailey on the basis of disability, in violation of the ADA because it did not provide an “equivalent level of service” to a customer with a disability who uses a wheelchair, in violation of the ADA. 42 U.S.C. § 12184(b)(3) and its implementing regulations, 49 C.F.R. §§ 37.5, 37.103(c), and 37.105.
ACCORDINGLY, IT IS HEREBY AGREED THAT:15. Respondent, by and through its officials, agents, employees and all persons in active concert or participation with the Respondent, shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating against any passenger on the basis of disability, including individuals with mobility impairments, in violation of the ADA.
16. Within 30 days of the effective date of this Agreement, Respondent will provide a level of service to customers with disabilities, including those who use wheelchairs, that is equivalent to the level of service provided to customers without disabilities, as defined above in paragraph 9, and will otherwise comply with the requirements of the ADA and its implementing regulations. In particular, accessible and equivalent service for demand responsive service will be provided in terms of fares charged to customers with disabilities so that said customers pay no more than the lowest regular fare charged to customers without disabilities.
17. Within 30 days of the effective date of this Agreement, Respondent will publish and distribute a new policy providing for non-discrimination against passengers with disabilities, including equivalent fares charged to customers with disabilities, to all personnel responsible for dispatching vans and to employees who have contact with the public, including reservation agents and drivers. Respondent will also distribute the policy to newly hired personnel in these job categories during its regular orientation of incoming employees and re-distribute the policy to all appropriate personnel on an annual basis for the life of the Agreement.
18. Within 60 days of the effective date of this Agreement, Respondent will publish and disseminate to the public in all locations where it disseminates information on its transportation services, and post on its Internet website and in a prominent location in its public areas the new policy providing for non-discrimination against customers with disabilities, including equivalent fares charged to customers with disabilities.
19. Respondent shall retain in its inventory, and maintain and repair in good working order, at least one accessible van that is readily accessible to and usable by customers with disabilities who use wheelchairs. “Accessible” shall mean complying with the accessibility requirements of parts 37 and 38 of Title 49 of the Code of Federal Regulations.
20. Respondent hereby agrees to pay to Steve Bailey a total of Two Thousand Dollars ($ 2,000.00) as full and final settlement of the complaint filed in this case. This sum shall be paid to Steve Bailey in full and final satisfaction of all ADA claims arising out of the complaint and the facts set forth therein. Within thirty (30) days of Respondent’s receipt from Mr. Bailey of a fully executed Release in the form attached as Appendix A to this agreement, Respondent shall pay Steve Bailey the amount specified above. Respondent shall mail a photocopy of the check along with accompanying correspondence to counsel for the Department of Justice.
21. No later than twelve (12) months from the effective date of this Agreement, Respondent will pay to the United States the sum of One Thousand Five Hundred Dollars ($1,500.00) by certified check payable to the United States Treasury as a civil penalty.
22. Within one year of the effective date of this Agreement, Respondent will submit to the Department of Justice a report on the actions it has taken to comply with the requirements of paragraphs 15 - 21. Said report shall include copies of the non-discrimination policy and material publicly disseminated relating to that policy.
23. The United States shall have the right, during the course of this Agreement, to conduct periodic inspections of the compliance with this Agreement, including the provision of equivalent level of service by Respondent. If deficiencies are found with Respondent’s compliance, the United States shall prepare a report identifying all elements of the facility that it determines do not comply with the Agreement. On the basis of the United States’ report, the Parties will negotiate in good faith to resolve any issue(s) raised and Respondent agrees to modify any features or conditions that the Parties agree do not comply with the Agreement. Respondent shall make such modifications within a customary and reasonable time of the date that the United States and Respondent conduct negotiations.
24. The Attorney General is authorized pursuant to Section 308(b)(1)(B) of the Act, 42 U.S.C. § 12188(b)(1)(B), to bring a civil action enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement set forth above, the Attorney General agrees to refrain from taking more formal enforcement action in this matter during the pendency of this Agreement, as long as Respondent complies with this Agreement. The periodic inspections contemplated in Paragraph 23 above shall not be considered investigation and compliance reviews within the meaning of 42 U.S.C. § 12188(b)(1)(A)(i).
25. The Parties agree that nothing contained in this Agreement or its exhibits shall constitute an admission by Respondent that it has, at any time or in any way, violated the Act. Except as set forth in Paragraph 23, or in the event that Respondent is found not to be in compliance with the terms of this Agreement and the Parties have exhausted the dispute resolution procedures under this Agreement, the United States shall not institute a civil action enforcing the ADA against Respondent based upon its position set forth in Paragraph 14.
26. The Parties recognize that the Attorney General and the Department have an affirmative duty to address complaints received from the public regarding allegations that Respondent does not comply with the ADA, including Section 304 of the ADA. In furtherance of this Agreement, when the Attorney General or the Department receive such complaints, the Department shall notify Respondent in writing of the nature of the complaints. The Parties shall then make every effort to address such complaints if appropriate through the inspection process outlined in Paragraph 23 above.
27. In the event that the Department seeks enforcement of this Agreement, or any provision of it, in Federal District Court, the Parties agree and hereby stipulate that the United States District Court for the District of Utah has sole personal and subject matter jurisdiction over this Agreement, the matters set forth in it, and the Parties to it.
28. The Department’s failure to enforce this entire Agreement or any provision in it with regard to any deadline or any other provision contained herein shall not be construed as a waiver by the Department of any right to do so.
29. This Agreement is a public document. A copy of this Agreement and the Appendix thereto shall be made available pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The Department and Respondent also shall provide a copy of this Agreement and the Appendix thereto to any person upon request.
30. This Agreement shall be binding upon Respondent and its successors in interest, and Respondent has a duty to notify all such successors in interest of these obligations and to include in all future documents transferring any right or interest in the facility any obligations to comply with this Agreement not retained by Respondent.
31. Nothing in this Order shall preclude the United States from filing a separate action under the ADA for any future alleged violation by Respondent for violations beyond the scope of this Order and occurring after the Effective Date of this Order, or for violations by subcontractors or other third parties whose activities or vehicles may be implicated by the subject matter of this Order
NOTICE32. Any notice required or permitted herein shall be given as follows:
a. If by the Department to Respondent by certified mail, return receipt requested to:
Gordon Cummins
Resort Express, Inc.
1821 Sidewinder Drive
Park City, UT 84068b. If by Respondent to the Department, by certified mail, return receipt requested to:
John L. Wodatch, Section Chief
U.S. Department of Justice
Disability Rights Section-NYA
Civil Rights Division
950 Pennsylvania Avenue
Washington, D.C. 20530with a copy to:
Harold L. Jackson
Trial Attorney U.S. Department of Justice
Disability Rights Section-NYA
Civil Rights Division
950 Pennsylvania Avenue
Washington, D.C. 20530
SCOPE OF AGREEMENT33. This Agreement, including the Appendix attached hereto, 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 in this written Agreement shall be enforceable. In the event a court of competent jurisdiction concludes that any part of this Agreement is unenforceable, such portion shall be severed from this Agreement and all other portions shall remain enforceable.
34. The scope of this Agreement is limited to the compliance requirements set forth in Paragraphs 15 through 23 above, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect Respondent’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
35. A signatory to this document in a representative capacity for a partnership, corporation, or other such entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.EFFECTIVE DATE/TERMINATION DATE
36. This Agreement shall become effective as of the date of the last signature below, and shall terminate three (3) years thereafter.
FOR THE UNITED STATES:
Date: 2/20/03
Date: 2/5/03
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
__________________________
JOHN L. WODATCH, Chief
ALLISON NICHOL,Deputy Chief
HAROLD L. JACKSON, Trial Attorney
U.S. Department of Justice
Disability Rights Section-NYA
Civil Rights Division
950 Pennsylvania Avenue
Washington, D.C. 20530
(202) 305-7624
FOR RESORT EXPRESS, INC:
__________________________
Gordon Cummins
President
Resort Express, Inc.
1821 Sidewater Drive
Park City, UT 84068
(435) 649-3999
APPENDIX A
RELEASE
I acknowledge by my signature below that the above Settlement Agreement between the United States and Resort Express, Inc., DJ # 202-77-37, resolves and releases any claims I may have had arising out of the facts described in paragraphs 10 through 14 of the above Settlement Agreement.
By: _______________________ Date: _________________
Steve Bailey
9905 Shadow Road
La Mesa, CA 91941
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June 16, 2003