IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA Plaintiff,
v.
SFX ENTERTAINMENT, INC., d/b/a
CLEAR CHANNEL ENTERTAINMENT,Defendant.
|
|
|
|
|
|
|
|
|
|
|
|
CIVIL ACTION NO. 02-CV-1929
Department of Justice Press Release
CONSENT ORDER AND FINAL JUDGMENT
Jurisdiction
1. This Court has jurisdiction over this action under 42 U.S.C. § 12188(b)(1)(B), and 28 U.S.C. §§ 1331 and 1345.
2. This Court has authority to grant equitable relief, monetary damages and civil penalties under 42 U.S.C. § 12188(b)(2) and 28 U.S.C. § 2201 and 2202.
Contentions of the Parties3. Defendant SFX Entertainment Inc. is a Delaware corporation, and is doing business as Clear Channel Entertainment (“Clear Channel Entertainment”). It is owned by Clear Channel Worldwide, which is incorporated in Texas. Clear Channel Entertainment owns, leases, or operates venues throughout the United States for concerts and other performances attended by the general public. Venues that Clear Channel Entertainment owns, leases, or operates include the Post Gazette Pavilion at Star Lake in Burgettstown, Pennsylvania and the Tweeter Center in Tinley Park, Illinois.
4. The United States asserts that Clear Channel Entertainment is a private entity that owns, leases, or operates a place of public accommodation within the meaning of section 301, 42 U.S.C. §12181, and is, therefore, a public accommodation within the meaning of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104. The United States asserts that Clear Channel Entertainment is thus subject to the requirements of Title III of the ADA, 42 U.S.C. §§ 12181 - 12189.
5. The United States Department of Justice (“DOJ”) is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189.
6. Pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(i) to conduct investigations of alleged violations of Title III of the ADA, DOJ investigated complaints it had received that Clear Channel Entertainment refused to allow individuals with diabetes to keep their diabetic supplies with them inside the concert venue.
7. As a result of this investigation, DOJ concluded that Clear Channel Entertainment’s policy on access of medication into venues dated April 3, 2000 (the “April 2000 Policy”), which prohibits patrons from taking any syringes or needles used for medical purposes, including needles used for insulin and lancets for testing blood, into the concert venue unless secured in a first aid room, discriminates against individuals with disabilities in violation of the ADA. DOJ also concluded that Clear Channel Entertainment’s April 2000 Policy prohibiting diabetics from bringing food inside the venue unless secured in a first aid room violates the ADA.
8. Clear Channel Entertainment asserts that at all times its April 2000 Policy pertaining to needles in its venues has protected the health and safety of guests, employees and performers in its venues in a fashion that is consistent with its obligations under the Americans With Disabilities Act.
9. DOJ concluded that the April 2000 Policy denies individuals with diabetes an equal opportunity to attend and enjoy concerts because many individuals with diabetes who use insulin must test their blood sugar with lancets, inject insulin with syringes, and carry certain kinds of food with them. The United States asserts that lack of immediate access to their blood testing equipment, food and/or glucose, and insulin can be life-threatening. DOJ also concluded that Clear Channel Entertainment unlawfully enforced or attempted to enforce the April 2000 Policy against three individuals with diabetes and thereby denied them an equal opportunity to enjoy the concerts they attended.
10. Clear Channel Entertainment denies that it has deprived any guest with diabetes the equal opportunity to attend and enjoy concerts at venues owned, leased or operated by Clear Channel Entertainment. It also denies that it has interfered with access to blood-testing equipment, food and/or glucose and insulin in any way that is inconsistent with the medical needs of any of its guests at any time.
11. The United States filed a Complaint against Clear Channel Entertainment on April 9, 2002 in the U.S. District Court of the Eastern District of Pennsylvania (the “Complaint”). The Complaint alleges that Clear Channel Entertainment’s April 2000 Policy on diabetic supplies and its practice of enforcing this policy against persons with diabetes constitute a pattern or practice of discrimination and raise issues of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B); and that three individuals referenced in paragraph 9 were unlawfully denied an equal opportunity to enjoy the concerts they attended.1 After the filing of the Complaint, the United States learned of additional individuals who the United States believes were also unlawfully denied an equal opportunity to enjoy the concerts they attended at Clear Channel Entertainment venues under the April 2000 Policy.
12. Clear Channel Entertainment denies that its April 2000 Policy regarding diabetic supplies constitutes a pattern or practice of discrimination and that the individuals named in the Complaint, or any other individuals referenced in the last sentence of paragraph 11, were unlawfully denied an equal opportunity to enjoy the concerts they attended.
13. The United States asserts specifically that Clear Channel Entertainment’s April 2000 Policy and its conduct discriminate 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) by:a. Imposing or applying eligibility criteria that screen out or tend to screen out individuals with disabilities in violation of 42 U.S.C. § 12182(b)(2)(A)(i) and 28 C.F.R. § 36.301;
b. Affording 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);
c. Failing to make reasonable modifications in policies, practices, or procedures, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302(a);
d. Providing an individual or class of individuals on the basis of a disability or disabilities with goods, services, facilities, privileges, advantages or accommodations that are different from those provided to other individuals, in violation of 42 U.S.C. § 12182(b)(1)(A)(iii) and 28 C.F.R. § 36.202(c); and,
e. Denying an individual or class of individuals on the basis of a disability or disabilities the opportunity to participate in or benefit from its goods, services, facilities, privileges, advantages, or accommodations, in violation of 42 U.S.C. § 12182(b)(1)(A)(i) and 28 C.F.R. § 36.202(a).14. Clear Channel Entertainment denies each of the allegations in the preceding paragraph. Furthermore, Clear Channel Entertainment asserts that its April 2000 Policy was adopted and implemented to protect the health and safety of customers, employees and performers at Clear Channel Entertainment venues consistent with the rights of guests with diabetes under the Americans With Disabilities Act.
15. The parties wish to resolve this matter without resort to further litigation, and believe that resolution of this matter is in the public interest.
WHEREFORE, the parties hereby agree and stipulate to the Court’s entry of this Consent Order and Final Judgment, which provides as follows:
16. Settlement of LitigationThis Order shall be a full, complete, and final disposition and settlement of all of the United States’ claims and those of the complainants that have arisen out of the Complaint. Nothing herein shall be construed as an admission by Clear Channel Entertainment of any violation of Title III of the ADA or any other law. The Court shall retain jurisdiction of this action to enforce provisions of this Order for three (3) years from the date of this Order.
17. Injunctive Reliefa. Clear Channel Entertainment agrees not to discriminate against any guest with diabetes with regard to their bringing diabetes related medical equipment or diabetes related food into a concert venue.
b. Clear Channel Entertainment hereby adopts the policy, effective thirty (30) days after the entry date of this Order, entitled “Standard Operating Procedure: Guest Access to Diabetic Supplies” (the “Policy”), which is attached hereto as Appendix A and incorporated herein by reference.
c. The United States agrees that the Policy complies with Title III of the Americans With Disabilities Act.
d. Clear Channel Entertainment will provide training for its employees who have responsibility for implementing elements of the Policy. Where the relevant personnel responsible for implementing parts of the Policy are not employees of Clear Channel Entertainment, Clear Channel Entertainment will provide appropriate written or oral instruction.18. Releases and Monetary Relief
a. Within thirty days of the entry date of this Order, Clear Channel Entertainment will pay to the United States the sum of Twenty Thousand ($20,000.00) by check payable to the U.S. Treasury. Before distributing the funds, the United States will obtain a signed copy of the release attached as Appendix B from the three persons named in the complaint and all other persons who have filed complaints with DOJ, and will provide each release to Clear Channel Entertainment.
b. The United States hereby represents that the persons referenced in paragraph 18(a) are the only persons of whom it is aware with complaints concerning Clear Channel Entertainment’s April 2000 Policy.19. Monitoring
a. The United States may review compliance with this Order and the Policy incorporated herein at any time. If the United States believes that Clear Channel Entertainment is not in compliance with this Order or any requirement contained herein, the United States agrees to notify Clear Channel Entertainment in writing of the alleged noncompliance and attempt to seek a resolution of the matter with Clear Channel Entertainment. Clear Channel Entertainment shall have thirty (30) days in which to correct the noncompliance. If the parties are unable to reach a resolution, the United States may seek appropriate relief from this Court. Failure by the United States to seek enforcement of or relief under this Order, or any of its provisions, shall not be construed as a waiver of the United States’ rights under this Order. Any violation of this Order shall be considered a subsequent violation of the ADA.
b. Clear Channel Entertainment will monitor the Policy. Should Clear Channel Entertainment seek to modify the Policy, Clear Channel Entertainment agrees to provide the United States with a copy of the proposed revision and its reasons for proposing it. The United States will review the information on an expedited basis. If the United States objects to the revision, the parties will meet and confer promptly over the issue. If the parties are unable to reach agreement on the revision, they shall jointly move the Court for resolution of the issue. However, if Clear Channel Entertainment seeks to modify the Policy because it believes that an injury resulted from the use of a syringe or lancet by a guest with diabetes, Clear Channel Entertainment may immediately implement the policy set forth in Appendix C (“Revised Policy”), on a temporary basis, without penalty, after notifying the United States of its intention to do so. The Revised Policy will remain in effect until a final resolution is reached either by agreement of the parties or by Court order issued pursuant to the joint motion filed by the parties following the procedures set forth above for providing reasons for implementation of the Revised Policy and a “meet and confer” between the parties.20. Notice
All notices, reports, or other such documents required by this Consent Order 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: Amanda Maisels
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
1425 New York Avenue, NW
Washington D.C. 20005
(202) 305-8454
(202) 305-9775 (facsimile)For notices to Clear Channel Entertainment:
Dale A. Head
Executive Vice President and General Counsel
Clear Channel Entertainment
2000 West Loop South, Suite 1300
Houston, TX 77027
713-693-2983
713-693-8255 (facsimile)
With a copy to:
Douglas B. Mishkin
Patton Boggs, LLP
2550 M Street, NW
Washington, DC 20037
202-457-6020
202-457-6482 (facsimile)21. Entire Consent Order
This Consent Order, 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 written Consent Order, shall be enforceable regarding the matters raised herein.
22. Public Document
This Consent Order is a public document. A copy of this document, and any information contained herein, may be made available to any person.
23. Consent Order Binding on Parties and Successors in Interest
This Consent Order shall be binding on the United States and Clear Channel Entertainment, and the successors in interest of Clear Channel Entertainment. Clear Channel Entertainment has a duty to so notify all such successors in interest of the existence and terms of this Consent Order.
24. Term of the Consent Order
This Consent Order shall be in full force and effect for a period of three (3) years after the date of entry of this Consent Order. The Court shall retain jurisdiction of this action to enforce provisions of this Order during those three (3) years.
25. Severability
If any term of this Consent Order is determined by any court to be unenforceable, the other terms of this Consent Order shall nonetheless remain in full force and effect.
26. Signatories Bind Parties
Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Order.
COUNSEL FOR THE UNITED STATES:
Dated: 6/10/03
JOHN ASHCROFT
Attorney General of the United States
RALPH F.BOYD, JR.
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH
Chief
ALLISION NICHOL
Deputy Chief
__________________________
AMANDA MAISELS
HAROLD JACKSON
Trial Attorneys
Disability Rights Section
U.S Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202)305-8454
(202)305-9775 (facsimile)
COUNSEL FOR Clear Channel Entertainment:
Dated: 6/4/03
__________________________
DALE HEAD
Executive Vice President and General Counsel
Clear Channel Entertainment
2000 West Loop South, Suite1300
Houston, TX 77027
713-693-2983
713-693-8255 (facsimile)
Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED
Dated: June, 12, 2003
By: /s/ John R. Padova
JOHN R.PADOVA
UNITED STATES DISTRICT JUDGE
ENDNOTE
1 While the Complaint named four individuals, it was later determined that one of these individuals attended a venue at which Clear Channel Entertainment did not control the policy regarding diabetes supplies. (return to document)
APPENDIX A
Standard Operating ProcedureGuest Access to Diabetic Supplies
Purpose:This Standard Operating Procedure (“SOP”) applies to venues that conduct screening. It does not require screening at venues that do not conduct screening. Nor does it require a single method or standard of screening for venues that do conduct screening.
The purpose of this SOP is to ensure that, where screening is performed, the proper balance is struck between excluding items which may pose a threat to the health or safety of guests or staff and permitting guests to use medical supplies for legitimate medical purposes.Procedure
Syringes/Needles/Lancets
1. As a general rule, guests are not permitted to bring needles or other sharp objects (including but not limited to syringes, hypodermic needles or knives) into a venue. The exception to that rule is that a guest may bring syringes and/or lancets into the venue for personal medical use. The intent of this exception is to accommodate guests with medical conditions, such as diabetes, who may need to use their medical supplies while at the event.
2. When a guest arrives at a venue with a syringe and/or a lancet, an event staffer will ask a supervisor to solicit the assistance of medical personnel, who shall be in reasonably close proximity to the entrance gates. The assistance of medical personnel may not significantly delay the guest’s entry to the venue.
3. The medical personnel then will determine whether the syringe(s) and/or lancet(s) appear to be for the legitimate medical use of the guest.(i) If the guest’s syringe(s) is accompanied by a vial of insulin, the syringe shall be permitted in the venue and allowed to remain with the guest. Otherwise, the syringe will not be permitted into the venue.
(ii) A guest with a vial of insulin shall be permitted to bring into the venue a maximum of five (5) syringes, unless the guest demonstrates a need to have more. Additional syringes may be kept at the First Aid Room or the guest may return them to his/her car.
(iii) If the guest’s lancet is accompanied by equipment used to measure the guest’s glucose level, the lancet shall be permitted in the venue and allowed to remain with the guest. Otherwise, the lancet will not be permitted into the venue.
(iv) An Epinephrine Auto Injector (known as an “EpiPen”) shall be permitted in the venue and allowed to remain with the guest.
(v) A Glucagon Emergency Kit for Low Blood Sugar shall be permitted in the venue and allowed to remain with the guest.
(vi) Although guests shall be permitted to use their lancets and syringes at their seats, they are encouraged to do so in other appropriate places in the venue, such as the First Aid Room or rest rooms. Guests are encouraged to be mindful of the safety of others around them in using such equipment.
(vii) Guests may not use lancets or syringes in those circumstances where, because of active dancing or similar movements, such use poses a significant risk to the safety of others.4. Guests who are permitted to bring syringes and/or lancets into a venue shall take them out of the venue when they leave (i.e., they shall not dispose of them in or near the venue).
5. Should a guest arrive at a venue with food that is brought for diabetic purposes, an event staffer or supervisor, upon confirming that the food is in fact being brought for diabetic purposes, shall permit the guest to bring that food into the venue as an exception to the venue’s general policy prohibiting guests from bringing their own food into the venue. Should the food require refrigeration, the event staffer should offer to allow the guest to store the food in the refrigerator in the First Aid Room.Guest Fact Sheet
6. A guest who is being permitted to bring any such medical devices or medicine into a venue will be provided a Fact Sheet explaining the restrictions refere
APPENDIX B
RELEASE FORM
THE UNITED STATES OF AMERICA v. SFX ENTERTAINMENT, INC.,
d/b/a CLEAR CHANNEL ENTERTAINMENT,
Civil No. 02-CV-1929
United States District Court for the Eastern District of Pennsylvania
For and in consideration of adoption by SFX ENTERTAINMENT, INC. (hereinafter "SFX") of the remedies identified in the Consent Order entered into between SFX and the United States in the above-referenced matter, I,___________________________, hereby release SFX and each and every one of its former and current affiliates, parents, subsidiaries, officers, directors, employees, partners, agents, successors, predecessors, assigns, joint venturers and attorneys (“Released Parties”) of and from all actions, causes of action, claims, demands or complaints in law or equity that Complainant or Complainant’s heirs, executors, administrators, assigns, agents, representatives or attorneys ever had or now has, or may have by reason of any occurrence, transaction, activity, matter, cause or thing whatsoever at any time up to and including the date of execution of this Agreement arising out of or related in any way to the allegations of the Complaint under any federal, state or local law (collectively, “Claim”). Furthermore, Complainant shall not pursue any such Claim against any, some or all of the Released Parties in any court, agency, board, committee or forum whatsoever, and shall reimburse the Released Parties for all fees and expenses associated with any, some or all of the Released Parties having to defend or respond to such a Claim, whether the Claim be brought by Complainant or a person or entity on behalf of Complainant.
Complainant will immediately withdraw with prejudice any pending charge, complaint or lawsuit filed against any Released Party (other than the complaint to DOJ).
This Release constitutes the entire agreement between myself and the defendant without exception or exclusion.
I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.Date:_____________________, 2003.
__________________________________
APPENDIX C
Revised Standard Operating Procedure
Guest Access to Diabetic Supplies
PurposeThis Standard Operating Procedure (“SOP”) applies to venues that conduct screening. It does not require screening at venues that do not conduct screening. Nor does it require a single method or standard of screening for venues that do conduct screening.
The purpose of this SOP is to ensure that, where screening is performed, the proper balance is struck between excluding items which may pose a threat to the health or safety of guests or staff and permitting guests to use medical supplies for legitimate medical purposes.Procedure
Syringes/Needles/Lancets
1. As a general rule, guests are not permitted to bring needles or other sharp objects (including but not limited to syringes, hypodermic needles or knives) into a venue. The exception to that rule is that a guest may bring syringes or lancets into the venue for personal medical use. The intent of this exception is to accommodate guests with medical conditions, such as diabetes, who may need to use their medical supplies while at the event.
2. When a guest arrives at a venue with a syringe or a lancet, an event staffer will ask a supervisor to solicit the assistance of medical personnel, who shall be in reasonably close proximity to the entrance gates. The assistance of medical personnel may not significantly delay the guest’s entry to the venue.
3. The medical personnel then will determine whether the syringe(s) or lancet(s) appear to be for the legitimate medical use of the guest.(i) If the guest’s syringe(s) is accompanied by a vial of insulin, the syringe shall be permitted in the venue and allowed to remain with the guest. Otherwise, the syringe will not be permitted into the venue.
(ii) A guest with a vial of insulin shall be permitted to bring into the venue a maximum of five (5) syringes, unless the guest demonstrates a need to have more. Additional syringes may be kept at the First Aid Room or the guest may return them to his/her car.
(iii) If the guest’s lancet is accompanied by equipment used to measure the guest’s glucose level, the lancet shall be permitted in the venue and allowed to remain with the guest. Otherwise, the lancet will not be permitted into the venue.
(iv) An Epinephrine Auto Injector (known as an “EpiPen”) shall be permitted in the venue and allowed to remain with the guest.
(v) A Glucagon Emergency Kit for Low Blood Sugar shall be permitted in the venue and allowed to remain with the guest.
(vi) Although guests shall be permitted to use their lancets and syringes at their seats, they are encouraged to do so in other appropriate places in the venue, such as the First Aid Room or rest rooms. Guests are encouraged to be mindful of the safety of others around them in using such equipment.
(vii) A guest shall not use a lancet or syringe when a person or persons are actively moving in close proximity to the guest such that the guest could be bumped while using the lancet or syringe.4. Guests who are permitted to bring syringes and/or lancets into a venue shall take them out of the venue when they leave (i.e., they shall not dispose of them in or near the venue).
5. Should a guest arrive at a venue with food that is brought for diabetic purposes, an event staffer or supervisor, upon confirming that the food is in fact being brought for diabetic purposes, shall permit the guest to bring that food into the venue as an exception to the venue’s general policy prohibiting guests from bringing their own food into the venue. Should the food require refrigeration, the event staffer should offer to allow the guest to store the food in the refrigerator in the First Aid Room.Guest Fact Sheet
6. A guest who is being permitted to bring any such medical devices or medicine into a venue will be provided a Fact Sheet explaining the restrictions referenced above.
Cases & Matters by ADA Title Coverage | Legal Documents by Type & Date | archive.ADA.gov Home Page
June 23, 2003