BACKGROUND
1. This matter was initiated by a complaint filed by Judith E. Heumann (“complainant”) under title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (“Department”) against The Washington Opera (“Opera”). The complainant alleged that the Opera violated title III of the ADA by having an insufficient number of wheelchair accessible seats, as defined in the Standards for Accessible Design, 28 C.F.R. part 36 app. A (“ADA Standards”), §§ 4.1.3(19)(a), 4.33.2, and 4.33.3 (“wheelchair accessible seat”), and by failing to make reasonable modifications to its ticketing policies, practices, and procedures in order to afford individuals with disabilities the opportunity to participate in, and benefit from, The Washington Opera’s goods and services in a manner equal to that afforded to other individuals.
2. The Department of Justice is authorized to investigate the alleged violation in this complaint and commence a civil action in 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, monetary damages, and civil penalties. 42 U.S.C. §§ 12188(a)(2) and 12188(b). In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter absent violation of the Agreement.
3. The parties to this Agreement are the United States of America and The Washington Opera. The parties agree that this Agreement is not an admission of any violation and should not be construed as an admission by the Opera of any violation.
4. The parties agree that the ADA applies to the Opera because it is a public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(C) &(D).
5. The Opera represents that in its current 2002-2003 season, it plans to offer 53 performances of seven operas at two venues, due to plans to renovate the Opera House at The John F. Kennedy Center for the Performing Arts (Kennedy Center). During the fall of 2002, it plans to offer performances in the Opera House at the Kennedy Center. During 2003, it plans to offer performances in DAR Constitution Hall. The Washington Opera represents that it plans on moving back into the Opera House at the Kennedy Center in 2004, after renovations are completed. The parties agree that the Opera will make reasonable modifications to their ticketing policies, practices, and procedures, as set forth below, to ensure that patrons with disabilities have the same opportunities as those afforded to other individuals to enjoy all of its performances.
TERMS AND CONDITIONSIn the interests of securing compliance by voluntary means, without recourse to litigation, the parties hereby agree as follows:
The Opera House (Pre-Renovation)6. Both parties acknowledge that the Opera House at the Kennedy Center currently has wheelchair accessible seating in Boxes 1 through 19 of the Box Tier only and that the theater is undergoing renovation in 2003 to provide additional wheelchair accessible seating. Therefore, as of the effective date of this Agreement, the Opera’s policy for designated wheelchair accessible seating and companion seating at the Kennedy Center shall be as follows:
a. The Washington Opera will designate and reserve wheelchair accessible seats exclusively for purchase by persons with disabilities and their companions for every performance as set forth below:
i. 4 accessible seats and 4 companion seats for Ticket Subscription Series A (4 Saturday evening performances) will be designated accessible and companion seating;
ii. 4 accessible seats and 4 companion seats for Ticket Subscription Series B (4 Sunday matinee performances) will be designated accessible and companion seating;
iii. 5 accessible seats and 5 companion seats for Ticket Subscription Series C (3 Friday evening and 1 Sunday evening performances) will be designated accessible and companion seating;
iv. 5 accessible seats and 5 companion seats for Ticket Subscription Series D (4 Wednesday evening performances) will be designated accessible and companion seating;
v. 5 accessible seats and 5 companion seats for Ticket Subscription Series E (4 Monday evening performances) will be designated accessible and companion seating;
vi. 5 accessible seats and 5 companion seats for Ticket Subscription Series F (4 Tuesday evening performances) will be designated accessible and companion seating;
vii. 5 accessible seats and 5 companion seats for Ticket Subscription Series G (4 Saturday evening performances) will be designated accessible and companion seating;
viii. 7 accessible seats and 7 companion seats for Ticket Subscription Series H (4 Thursday evening performances) will be designated accessible and companion seating;b. For every performance, 4 wheelchair accessible seats and 4 companion seats will be sold to persons with disabilities and their companions at the least expensive Second Tier price. The remaining designated accessible and companion seats will be sold to persons with disabilities and their companions at the least expensive First Tier price. Persons with disabilities and their companions will be permitted to purchase tickets at this price for all ticket options available to the general public (i.e. single tickets, mini-subscriptions, and full-series subscriptions).
c. Designated wheelchair accessible and companion seats will be permitted to be released for sale to the public, including patrons who do not have disabilities, as set forth in paragraph 9 of this Agreement.
DAR Constitution Hall7. The Opera represents that there will be 2,922 seats for its performances in DAR Constitution Hall after it alters the auditorium. Both parties acknowledge that DAR Constitution Hall currently has wheelchair accessible seating in the Orchestra section only. Therefore, as of the effective date of this Agreement, the Opera’s policy for wheelchair accessible seating and companion seating at DAR Constitution Hall shall be as follows:
a. The Opera will designate and reserve 30 wheelchair accessible seats and 30 companion seats, pursuant to the floor plan attached hereto as Exhibit A, exclusively for purchase by persons with disabilities and their companions for every performance as prescribed in the ADA Standards;
b. Designated wheelchair accessible and companion seats will be sold to persons with disabilities and their companions as follows: 1 accessible seat and 1 companion seat shall be sold at the Premium Box price; 6 accessible seats and 6 companion seats shall be sold at the Premium Orchestra price; 6 accessible seats and 6 companion seats shall be sold at the Tier Prime/Orchestra price; 7 accessible seats and 7 companion seats shall be sold at the Upper Tier Prime price; 3 accessible seats and 3 companion seats shall be sold at the Tier price; 4 accessible seats and 4 companion seats shall be sold at the Box/Upper Tier price; and 3 accessible seats and 3 companion seats shall be sold at the Restricted View price. Persons with disabilities and their companions will be permitted to purchase tickets at these prices for all ticket options available to the general public (i.e. single tickets, mini-subscriptions, and full-series subscriptions).
c. Designated wheelchair accessible and companion seats will be permitted to be released for sale to the public, including patrons who do not have disabilities, as set forth in paragraph 9 of this Agreement.
The Opera House (Post-Renovation)8. In order to ensure that individuals with disabilities have the same opportunities to participate in, and benefit from, the Opera’s goods and services in a manner equal to that afforded to other individuals, the Opera agrees to the following:
a. The Opera will designate and reserve wheelchair accessible seats and companion seats, as prescribed in the ADA Standards 4.1.3 (19), exclusively for purchase by persons with disabilities and their companions for every performance;
b. At least one companion seat will be provided next to each designated wheelchair accessible seat, as prescribed in the ADA Standards 4.33.3, and sold at the same ticket price as the ticket for the wheelchair accessible seat;
c. Designated wheelchair accessible seating and companion seating will be physically dispersed throughout the auditorium so as to ensure people with disabilities a choice of admission prices and lines of sight comparable to that of the general public as prescribed in the ADA Standards 4.33.3;
d. Designated wheelchair accessible seating and companion seating will be permitted to be released for sale to the public, including patrons who do not have disabilities, as set forth in paragraph 9 of this Agreement.
Releasing Wheelchair Accessible and Companion Seats9. Designated wheelchair accessible and companion seating locations shall be reserved exclusively for purchase by persons with disabilities and their companions with the following exceptions:
a. Three days (72 hours) after all non-accessible seating is sold out in the entire auditorium, The Washington Opera shall be permitted to release one half of the unsold designated wheelchair accessible and companion seating locations for sale to the public, including patrons who do not have disabilities;
b. One week (168 hours) before a performance, The Washington Opera shall be permitted to release one half of the remaining unsold designated wheelchair accessible and companion seating locations for sale to the public, including patrons who do not have disabilities;
c. Within 24 hours of the show, The Washington Opera shall be permitted to release any remaining unsold designated wheelchair accessible and companion seating locations for sale to the public, including patrons who do not have disabilities.
Compensation10. On or before October 1, 2002, The Washington Opera will offer to provide the complainant with three full-series subscription seats for the 2002-2003 season. Two of the seats will be wheelchair accessible. The seats shall be together for each performance. The complainant will have the same rights, benefits, and privileges as those afforded other full-series subscribers.
11. In consideration of the promises made in paragraph 10 of this Agreement, the Department agrees to obtain the complainant’s signature on the release attached hereto as Exhibit B. Within ten business days of The Washington Opera’s receipt of the fully executed release, The Washington Opera shall send the complainant the subscription tickets as specified in paragraph 10 by certified mail to the address on the release form. A copy of the transmittal letter and a copy of the subscription tickets shall be sent simultaneously to the Justice Department’s Disability Rights Section.
Miscellaneous Provisions12. Tickets for wheelchair accessible seating and companion seating locations shall be available for sale at the same times, locations, conditions, and through all the same methods available to the general public, except as set forth in this Agreement.
13. Within 10 business days of the effective date of this Agreement, The Washington Opera will designate an ADA Coordinator to handle all questions, concerns, or complaints regarding accessibility. The ADA Coordinator will attend at least one conference or training per year addressing ADA compliance and accessibility issues.
14. Within 60 business days of the effective date of this Agreement, The Washington Opera will create an ADA Advisory Committee that consists of, at a minimum, three Washington Opera staff persons, including the ADA Coordinator, and five people with disabilities, three of whom are not current subscribers or ticket holders. The Washington Opera will offer the complainant the opportunity to serve on the Advisory Committee and will make good faith efforts to include people with a wide range of disabilities (i.e. people who use wheelchairs or have mobility impairments, people who are blind or have low vision, and people who are deaf or hard of hearing) in the Advisory Committee. The Washington Opera will provide the Advisory Committee with pertinent information, such as the number of requests for wheelchair accessible seating, the number of wheelchair accessible seats sold to persons with disabilities, and the number and types of complaints regarding accessibility. The Washington Opera will make good faith efforts to implement the Advisory Committee’s suggestions regarding outreach to the disabled community and making The Washington Opera more accessible to people with disabilities.
15. Within 20 business days of the effective date of this Agreement, the Opera will implement a written ticketing policy that will include paragraphs 6 - 9 of this Agreement. The Opera will provide training to all of its employees about the new ticketing policy and this Agreement, inform all of its employees of the identity of the ADA Coordinator, instruct all of its employees to comply with the provisions of this Agreement, and distribute a copy of the new ticketing policy in writing to each staff person.
16. Within 20 business days of the effective date of this Agreement, The Washington Opera will write to at least 10 disability organizations to advertise the availability, pricing, and locations of wheelchair accessible and companion seating and the ADA Advisory Committee. The Washington Opera’s Internet website and all brochures, programs, publications, and advertisements shall state, “Wheelchair accessible seating is available in all price categories for all operas,” shall advertise other accessibility features (such as the availability of assistive listening devices and closed captioning), and shall list the name, telephone number, and e-mail address of the ADA Coordinator. All brochures, programs, publications, and advertisements that contain pictures or photographs of Washington Opera patrons shall include a person with a disability. All brochures, programs, publications, and advertisements that contain pictures or photographs of seating areas shall clearly identify the location of designated wheelchair accessible and companion seats. The new ticketing policy shall be made available to the public upon request.
17. The Department may review compliance with this Agreement at any time within a period of three years from the effective date of this Agreement. If the Department determines that this Agreement or any of its requirements has been violated, it may institute a civil action in federal district court to enforce this Agreement or the requirements of title III, following written notice to The Washington Opera of the possible violation and a period of 10 business days in which The Washington Opera has the opportunity to cure the alleged violation. The term of this Agreement shall be extended until the alleged violation has been resolved.
18. Failure by the Department of Justice to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of the Department’s right to enforce other deadlines and provisions of this Agreement.
19. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person upon request.
20. The effective date of this Agreement is the date of the last signature below.
21. This Agreement 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, will be enforceable.
22. This Agreement is limited to the allegations set forth above and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect The Washington Opera’s continuing responsibility to comply with all aspects of title III of the ADA, including the obligation to provide effective communication and to provide written materials in accessible formats.
23. The person signing this document for The Washington Opera represents that s/he is authorized to bind The Washington Opera to this Agreement.
24. This Agreement will remain in effect for three years from its effective date, unless extended pursuant to paragraph 17 above.
FOR THE WASHINGTON OPERA: FOR UNITED STATES OF AMERICA:
__________________________
Date: 9-17-02
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
By:__________________________
JOHN L. WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
MARC DUBIN, Senior Trial Attorney
ANGELA N. LIANG, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 305-8710
Date: 9-20-02
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December 17, 2002