CONSENT DECREE

1. The parties to this Consent Decree (“Decree”) are Plaintiff the United States of America (“United States”) and Defendant Total Lifetime Care Health & Fitness Club, Inc. (“TLCHFC” or “Defendant”). TLCHFC is a private, for-profit company that operates a health club, pool, and workout facility located at One Memory Lane, Garrettsville, Ohio 44231.
2. On or about October 19, 2010, Andrew W. Krcmar filed a complaint of discrimination with the United States Department of Justice against Defendant. Mr. Krcmar alleged, inter alia, that Defendant failed to modify TLCHFC’s policies where necessary to afford Erika Collier, an individual with a disability, the goods, services, facilities, privileges, advantages, and accommodations of Defendant, in violation of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189. Ms. Collier is a young woman with disabilities residing at Whitehaven Farm, LLC (“Whitehaven Farm”), a private residential facility for persons with developmental disabilities. Mr. Krcmar is the CEO of Whitehaven Farm. Ms. Collier is accompanied by a Whitehaven Farm employee during her workouts at TLCHFC. Mr. Krcmar further alleged that Defendant refused to modify its policies to allow a non-member to accompany Ms. Collier, and that Defendant then retaliated against Ms. Collier and Pamela Krcmar, Mr. Krcmar’s wife, by terminating each of their memberships after Mr. Krcmar informed Defendant that its actions violated the ADA.
3. After receiving Mr. Krcmar’s complaint, the United States Department of Justice (“Department”) and the Ohio Civil Rights Commission initiated an investigation. The Department is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action on behalf of the United States in federal court if the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against and such discrimination raises an issue of general public importance, 42 U.S.C. § 12188(b)(1)(B); 28 C.F.R. § 36.503.
4. The United States filed a complaint contemporaneously with this Consent Judgment alleging that Defendant violated titles III and V of the ADA, 42 U.S.C. §§ 12181-12189, 12203 and their implementing regulation, 28 C.F.R. Part 36, for failing to accommodate Ms. Collier and for retaliating against Ms. Collier, Mr. Krcmar, and Ms. Krcmar.
5. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 12188. The parties agree that venue is appropriate.
6. TLCHFC is a place of public accommodation, as a place of exercise or recreation. 42 U.S.C. § 12181(7)(L); 28 C.F.R. § 36.104. Defendant, as owner of TLCHFC, is a public accommodation within the meaning of the ADA. 28 C.F.R. § 36.104.
7. The ADA prohibits public accommodations, including owners of health clubs, from discriminating against an individual on the basis of disability in the full and equal enjoyment of the goods and services offered by the public accommodation. 42 U.S.C. 12182(a); 28 C.F.R. § 36.201. Ensuring that health clubs afford full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to persons with disabilities is an issue of general public importance. 42 U.S.C. § 12188(b)(1)(B); 28 C.F.R.§ 36.503(b). The Attorney General has concluded that there is reasonable cause to believe that Defendant’s alleged discrimination and retaliation raises an issue of general public importance under titles III and V of the ADA, 42 U.S.C. § 12188(b)(1)(B)(ii); 28 C.F.R. § 36.503.
8. As a result of ongoing discussions, the United States and Defendant agree that it is in all parties’ best interest, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms without further litigation. Accordingly, the parties agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law raised in the United States’ Complaint.
9. In resolution of this action, the parties hereby AGREE and the Court expressly APPROVES, ENTERS, AND ORDERS the following:

I. DEFINITIONS

1. The term “TLCHFC Personnel” means: all employees and officers of TLCHFC, including, without limitation, managers, front desk attendants, and personal trainers employed by TLCHFC.

II. TERMS

1.Equal Access

Defendant shall not exclude persons with disabilities from participation in or deny them the benefits of full and equal enjoyment of TLCHFC’s goods, services, facilities, privileges, advantages, or accommodations in violation of section 302 of the ADA, 42 U.S.C. § 12182, and the relevant implementing regulation, 28 C.F.R. § 36.201(a).

2. Membership Reinstatement

Defendant shall reinstate the TLCHFC memberships of Ms. Collier and Mrs. Krcmar on the date of entry of this Decree (“Effective Date”). Going forward, each woman shall not be required to make any membership payments for the total number of months between October 2010 and the Effective Date, which equals the number of months they were prevented from accessing TLCHFC. Their ongoing membership costs shall not exceed the monthly standard rate being paid by any then-current TLCHFC member, excepting senior citizen’s discounts unless such discounts are applicable to either Ms. Collier or Mrs. Krcmar at the time payment is due.

3. Modification of Policies for Ms. Collier

Defendant shall modify the TLCHFC policies to allow Ms. Collier to be accompanied by an individual without a TLCHFC membership as a reasonable modification necessary to afford Ms. Collier, an individual with a disability, the goods, services, facilities, privileges, advantages, and accommodations of TLCHFC. Defendant shall not impose any monetary fee, surcharge, or any other restrictions or limitations on Ms. Collier’s access to TLCHFC because of this modification. It is understood by Ms. Collier, Mrs. Krcmar, and Whitehaven Farm that the accompanying individual shall not be entitled to utilize the equipment and services of TLCHFC for their own personal benefit.

4. Modification of Policies Generally

Defendant shall provide reasonable modifications necessary to afford any prospective or TLCHFC member with a disability, the goods, services, facilities, privileges, advantages, and accommodations of TLCHFC to any member or prospective member who requests one, provided it does not constitute a fundamental alteration of TLCHFC’s business, as those terms are defined and interpreted under the ADA. Defendant shall provide persons with disabilities with the full and equal enjoyment of TLCHFC’s services, privileges, facilities, advantages, and accommodations as required by this Decree and the ADA. In furtherance of this commitment, Defendant shall implement and follow the requirements set forth below within thirty (30) days of the Effective Date, except where a particular provision sets forth a different deadline.

5. Auxiliary Aids and Services

Defendant shall take those steps that may be necessary to ensure that no prospective or TLCHFC member with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services (as those terms are defined in 28 C.F.R. § 36.303) . Defendant shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with prospective or TLCHFC members with a disability, so long as such furnishing of auxiliary aids and services does not constitute an undue burden or fundamental alternation as those terms are defined and interpreted under the ADA.

6. Request Form for Prospective or TLCHFC Members with a Disability

As part of its member registration process and upon request, Defendant shall provide to prospective members a form for requesting a modification to policies, practices, or procedures to afford individuals with a disability TLCHFC’s goods, services, facilities, privileges, advantages, and accommodations or auxiliary aids and services (“Request Form”). The Request Form shall be filled out by either the Prospective Member or may be completed by TLCHFC Personnel based on the information provided by those individuals. Defendant shall ensure that a completed Request Form is obtained from each Prospective Member who requests and agrees to complete the Request Form. After being completed, the Request Form(s) shall be maintained in the individual’s membership file, whether kept in paper or electronic form. The Defendant will then determine if the request can be made without constituting any fundamental alteration of the Defendant’s business for a modification request or an undue burden or fundamental alteration of the Defendant’s business for an auxiliary aids and services request. Defendant shall also make the Request Form generally available to current TLCHFC members and will process and respond to it in the same manner as described immediately above.

7. Fundamental Alteration or Undue Burden

If Defendant believes a request for a modification is a fundamental alteration, or a request for auxiliary aids and services is an undue burden or fundamental alteration, it must notify counsel for the United States, who will evaluate the request and work with TLCHFC to determine if such accommodation is required by the ADA within seven (7) days of receipt of the request from the Defendant. In the event that the Parties do not reach an agreement with respect to a request for an accommodation, the United States reserves the right to take any and all action to enforce the ADA and this Consent Decree.

8. Complaint Resolution

Defendant shall maintain an effective complaint resolution mechanism for use by members with disabilities and will maintain records of all members’ complaints (whether oral or written) made to the Defendant regarding any disability. Defendant shall further maintain records of any actions taken with respect thereto. Copies of all disability-related complaints or notes reflecting disability-related complaints provided orally and the responses thereto shall be maintained by the Defendant for the Term of the Decree (as defined herein, infra). Within seven (7) business days of receipt of any complaint related to a disability, the Defendant shall notify counsel for the United States, and provide it with a copy of such disability-related complaint or, if a disability-related complaint was made orally, a description of the disability-related complaint.

9. Notice

1. The Defendant shall post and maintain a sign of conspicuous size and print, in conformance with the requirements of the ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. A, at 4.30, at TLCHFC’s entrance. The sign shall state:

If you have a disability that requires a modification to policies, practices or procedures, or auxiliary aids and services to achieve full and equal enjoyment of our facilities, please notify Total Lifetime Care Health & Fitness Club staff so that we can help.

2. The Defendant shall publish a written policy statement regarding TLCHFC’s policy with respect to persons with disabilities. The policy statement should include, but is not limited to, language that states: “TLCHFC does not discriminate against individuals with disabilities and will take all steps necessary to provide our members with disabilities full and equal enjoyment of the facilities and services.” This statement shall also be included in a prominent place on the TLCHFC’s employee training materials. Defendant shall distribute this written policy statement to all TLCHFC Personnel and to all new TLCHFC Personnel upon their employment. Thereafter, the Defendant shall distribute this written policy statement to all TLCHFC Personnel on an annual basis.

10. Training of TLCHFC Employees

1. Within thirty (30) days of the Effective Date, and annually thereafter, the Defendant shall commence mandatory training to active TLCHFC Personnel with the following objectives: to inform them of the procedures set forth in this Decree; to inform them of the procedures that they should follow in order to provide full and equal enjoyment to members with disabilities; and to educate TLCHFC Personnel on their obligations under this Decree.
2. For persons employed by TLCHFC who begin their employment after the training sessions required in the immediately preceding provisions, the Defendant shall provide the training specified above within thirty (30) days after the individual’s commencement of employment at TLCHFC.
3. The Defendant shall maintain attendance records of all training conducted pursuant to this Decree, which shall include the names and respective job titles of the attendees, as well as the date, time, and location of the training session.

11. Miscellaneous

1. The Defendant shall not deny equal services or other opportunities to any individual because he or she has a disability, or because of the known relationship of a person with someone who has a disability. Defendant reserves the right to deny admission to individuals for nondiscriminatory reasons.
2. The Defendant shall not retaliate against or coerce in any way any person who is trying to exercise rights under the ADA or this Decree.

12. Payment to Aggrieved Persons

Defendant agrees to pay the sum of Ten Thousand Dollars ($10,000.00) apportioned as follows: Eight Thousand Dollars ($8,000.00) to Erika Collier and Two Thousand Dollars ($2,000.00) to Pamela Krcmar. Payment of these sums by check payable to each person shall be made within twenty (20) days after Defendant’s receipt of the signed releases, attached hereto as Exhibits B-1, B-2 and B-3, pursuant to written instructions to be provided by counsel for the United States.

13. Civil Penalty

Defendant shall pay to the United States a civil penalty, pursuant to 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), of Five Thousand Dollars ($5,000.00), by check payable to the U.S. Department of Justice. This payment shall be made within ten (10) business days of the Effective Date.

III. REPORTING AND ENFORCEMENT

14. Implementation

Defendant shall coordinate and oversee the TLCHFC’s compliance with this Decree, including coordinating and/or conducting trainings, maintaining and providing reports and logs, and creating and modifying forms.

15. Violation of Decree

The United States may review compliance with this Decree at any time and may enforce this Decree if the United States, believes that this Decree or any requirement thereof has been violated. If the United States believes that this Decree or any portion of it has been violated, the United States shall give notice (including reasonable particulars) of such violation to Defendant’s counsel. Defendant must respond to such notice and/or cure such noncompliance as soon as practicable but no later than thirty (30) days thereafter. The United States and the Defendant shall negotiate in good faith in an attempt to resolve any dispute relating thereto; if the parties are unable to reach a satisfactory resolution, the United States may file an appropriate motion for failure to comply with this Decree.

16. Term of the Decree

This Decree shall become effective as of the date of the Court’s entry of it and shall remain in effect for one (1) year from that date.

17. Scope

This Decree does not purport to remedy any violations or potential violations of the ADA or any other federal law, other than the violations alleged in the United States’ Complaint and or any allegations of the charging parties related to the activities that are the subject of this decree in the above-titled action. The Consent Decree is entered into for the convenience of the parties and to avoid protracted litigation and is neither an admission of liability by the Defendant nor a concession by the United States that its claims are not well founded.

18. Binding

This Decree shall be binding on TLCHFC, its agents, employees, and officers in their official capacities. In the event that Defendant seeks to sell all or part of its interest in TLCHFC’s business, and the buyer intends on carrying on the same or similar use of the facility, then the buyer shall assume the terms and obligations under this Decree for the remaining term of this Decree.

19. Non-waiver

Failure by the United States to seek enforcement of this Decree pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
20. Authority

The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Decree.
SO ORDERED this 3rd day of May, 2012.