Settlement Agreement Department of Justice Press Releases

1. This matter was initiated by a complaint filed 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 White House Theater, f/k/a the Promise Theatre, f/k/a the Charley Pride Theatre. Department of Justice Complaint Number 202-43-38 alleges that the Theater contained architectural barriers to access, in violation of title III of the ADA and its implementing regulation, 28 C.F.R. part 36. The Department’s investigation has confirmed these allegations, and the Department further alleges that removal of these barriers is readily achievable.

2. The Attorney General is authorized to enforce title III of the ADA by seeking the alteration of facilities to make such facilities readily accessible to and usable by individuals with disabilities. See 42 U.S.C. § 12188(a)(2). In addition, the Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. See id. at § 12188(b)(1)(B).

3. The White House Theater is a Theater presenting live entertainment, and as such is a place of public accommodation covered by title III of the ADA. See 42 U.S.C. § 12181(7)(f). Branson Properties USA, LLLP (“Branson Properties”), owns the White House Theater. Empire Bank is the former owner of the White House Theater, and has promised to reimburse Branson Properties for costs associated with removal of architectural barriers in the White House Theater above $50,000 pursuant to separate agreement.

4. Branson Properties intends to make alterations to the auditorium within the White House Theater in order to provide some dinner Theater seating.

5. Branson Properties states that it is committed to full compliance with the Americans with Disabilities Act, as determined by the Department. To demonstrate that commitment, Branson Properties has agreed to remove architectural barriers that exist in unaltered areas within the White House Theater to the extent that removal of these barriers is readily achievable. Branson Properties has also agreed to comply with the alterations provision of title III of the ADA. Branson Properties agrees to take the steps outlined in this Settlement Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the goods and services of the White House Theater. In light of this agreement, the parties have determined that Department of Justice Complaint Number 202-43-38 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.

AGREEMENT

6. Branson Properties and its officers, agents, and employees are hereby enjoined from:

a. making further alterations to the White House Theater that do not comply with the ADA, and its implementing regulation, including the Standards for Accessible Design (“ADA Standards”), as set forth in 28 C.F.R. part 36 app. A;

b. failing to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable; and

c. discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods and services of the White House Theater.

7. Within 60 days of the effective date of this Settlement Agreement, Branson Properties shall present to the Department a set of detailed specifications, architectural plans, or other written or illustrative material, displaying proposed modifications to the White House Theater, to be undertaken as follows:

Parking

a. Designate accessible parking spaces on the west side of the building so that those spaces are located on the shortest accessible route to the building's entrance, in accordance with ADA Standards §§ 4.1.2(5) and 4.6.2.

b. Restripe those parking spaces designated as van accessible parking spaces so that the access aisles beside the spaces measure at least 96 inches wide, in accordance with ADA Standards §§ 4.1.2(5) and 4.6.4.

Exterior

c. Modify the area with fixed four-person picnic tables on the plaza in front of the building so that at least one of the tables has wheelchair-accessible seating, in accordance with ADA Standards §§ 4.1.3(18) and 4.32.

Entrances and Exits

d. Install an automatic door operator at the Group Entrance door, in accordance with ADA Standards §§ 4.1.3(7), 4.1.3(8), and 4.13.6.

Theater Lobby/Corridor

e. Reconfigure the main ticket counter, or provide an auxiliary counter in close proximity to the main counter, so that a counter is provided that is at least 36 inches long and no more than 36 inches high, in accordance with ADA Standards § 7.2(1).

f. Reconfigure the main concession counter, or provide an auxiliary counter in close proximity to the main counter, so that a counter is provided that is at least 36 inches long and no more than 36 inches high, in accordance with ADA Standards § 7.2(1).

g. Adjust the drinking fountain with the 36 inch high spout in the lobby so that the trajectory of the water flow is parallel to the front edge of the fountain, in accordance with ADA Standards §§ 4.1.3(10)(a) and 4.15.3.

h. Reconfigure at least one of the three public pay telephones in the Theater corridor so that it is equipped with a shelf and an outlet, and thus may accommodate a portable text telephone, in accordance with ADA Standards §§ 4.1.3(17) and 4.31.9(2).

i. Install a cane detectable barrier underneath the bank of public telephones in the Theater corridor, in accordance with ADA Standards §§ 4.1.3(17), 4.4.1, and 4.31.4.

j. Adjust the brochure display located across from the bank of telephones in the Theater corridor so that the highest brochure is located no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

Women's Toilet Room

k. Post accessible signage at the women's toilet room door, on the latch side of the door, with the centerline of the sign no more than 60 inches above the finish floor, and in Braille and raised letters, in accordance with ADA Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, and 4.30.6.

l. Reconfigure the toilet stalls so that at least one of the stalls is a 36-inch-wide stall with parallel grab bars and an outward-swinging, self-closing door, in accordance with ADA Standards §§ 4.1.3(11) and 4.22.4.

m. Reconfigure one of the two designated accessible toilet stalls so that the door to the stall opens on the wide side of the stall, in accordance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Fig. 30(a).

n. Remount the rear grab bars in the two designated accessible toilet stalls so that they are between 33 and 36 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(c).

o. Remount the side grab bars in the two designated accessible toilet stalls so that they are between 33 and 36 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(d).

p. Remount the side grab bars in the two designated accessible toilet stalls so that the ends of the grab bars are at least 52 inches from the rear wall, in accordance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(d).

q. Remount the toilet paper dispensers in the designated accessible toilet stalls so that they are located below the grab bars, in accordance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Fig. 30(d).

r. Remount the coat hooks on the doors of the designated accessible toilet stalls so that they are no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

s. Remount the toilet seat cover dispensers in the designated accessible toilet stalls so that at least 30" by 48" clear floor space is provided at the dispensers, in accordance with ADA Standards §§ 4.1.3(11), 4.2.4.1, 4.22.7, and 4.27.2.

Men's Toilet Room

t. Post accessible signage at the men's toilet room door, on the latch side of the door, with the centerline of the sign no more than 60 inches above the finish floor, and in Braille and raised letters, in accordance with ADA Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, and 4.30.6.

u. Reconfigure the designated accessible toilet stall so that the door to the stall opens on the wide side of the stall, in accordance with ADA Standards §§ 4.1.3(11), 4.22.4, 4.17.3, and Fig. 30(a).

v. Remount the side grab bar in the designated accessible toilet stall so that it is between 33 and 36 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(d).

w. Remount the side grab bar in the designated accessible toilet stall so that the end of the grab bar is at least 52 inches from the rear wall, in accordance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Fig. 30(d).

x. Remount the toilet paper dispenser in the designated accessible toilet stall so that it is located below the grab bar, in accordance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Fig. 30(d).

y. Remount the coat hook on the door of the designated accessible toilet stall so that it is no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

z. Remount the toilet seat cover dispenser in the designated accessible toilet stall so that at least 30" by 48" clear floor space is provided at the dispenser, in accordance with ADA Standards §§ 4.1.3(11), 4.2.4.1, 4.22.7, and 4.27.2.

Cry Room

aa. Adjust the door to the cry room so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by removing the existing closer from the door.

bb. Modify the cry room seating, or replace the seating with a bench, so that the aisle seat either does not contain an armrest or contains a removable or folding armrest in accordance with ADA Standards § 4.1.3(19)(a).

cc. Mount handrails on both sides of the stairs to the cry room seating area, in accordance with ADA Standards §§ 4.1.3(4) and 4.9.4.

Group Sales Office

dd. Adjust the door to the group sales office so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by removing the existing closer from the door.

ee. Reconfigure the group sales ticket counter, or provide an auxiliary counter in close proximity to the main counter, so that a counter is provided that is at least 36 inches wide and no more than 36 inches high, in accordance with ADA Standards § 7.2(1).

Theater Auditorium

ff. Adjust the doors to the auditorium so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by replacing the existing door closer.

gg. Purchase at least 14 additional complete headsets and receivers for use with the auditorium's assistive listening system, in accordance with ADA Standards § 4.1.3(19)(b).

hh. Post signage in the auditorium and at the ticket counter(s) notifying patrons of the availability of the assistive listening system, in accordance with ADA Standards §§ 4.1.3(19)(b), 4.30.7(4), and Fig. 43(d).

ii. Install designated fully-accessible wheelchair seating areas, including at least eight designated wheelchair seating areas in the uppermost tier of the dining area; four designated wheelchair seating areas in the lowest tier of the dining area; and eight designated wheelchair seating areas in the back row of the sloped floor seating. A fixed companion seat shall be installed adjacent to each of the designated accessible wheelchair seating areas within the sloped floor seating, in accordance with ADA Standards §§ 4.1.3(19)(a) and 4.33.3. No more than two of the designated wheelchair seating areas within the sloped floor seating or the dining area shall be adjacent to each other.

jj. Install handrails on both sides of the two new ramps providing access from the auditorium’s cross aisle to the lowest tier of the raised dining area. The top of the handrail gripping surfaces shall be between 34 and 38 inches above the ramp surface, and the handrails shall extend 12 inches beyond the top and bottom of the ramp run parallel to the walking surface, in accordance with ADA Standard § 4.8.5.

VIP Suite

kk. Adjust the door to the VIP suite so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by removing the existing closer from the door.

ll. Reconfigure the space at the latch pull side of the door to the VIP suite so that there is at least 18 inches of maneuvering clearance for a forward pull approach, in accordance with ADA Standards §§ 4.1.3(7), 4.13.6, and Fig. 25.

mm. Reconfigure the space at the latch push side of the door to the VIP suite so that there is at least 24 inches for a forward side latch push approach, in accordance with ADA Standards §§ 4.1.3(7), 4.13.6, and Fig. 25.

nn. Reconstruct the VIP Suite seating, or add additional seating, so that at least two aisle seats either do not contain an armrest or contain removable or folding armrests, in accordance with ADA Standards § 4.1.3(19)(a).

oo. Adjust the drinking fountain with the 36 inch high spout in the corridor to the VIP suite so that the trajectory of the water flow is parallel to the front edge of the fountain, in accordance with ADA Standards §§ 4.1.3(10)(a) and 4.15.3.

Backstage

pp. Adjust the stage right door from the stage to the backstage area so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by replacing the existing door closer.

qq. Replace the knob-type mechanism for opening the stage right door from the stage to the backstage area with a lever-operated, push-type, or U-shaped handle mechanism, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.9.

rr. Ensure that at least one men's dressing room and one women's dressing room on the ground level of the backstage area are fully accessible, by:

i. Adjusting the door to the dressing room so that the force required to open the door is no more than 5 lbf, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.11. Empire Bank may achieve this by replacing the existing door closer.

ii. Mounting the intercom control so that it is no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(13), 4.2.6, and 4.27.3.

iii. Mounting the clothes rod so that it is no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

iv. Mounting at least one clothing storage shelf so that it is no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

v. Ensure that a lavatory complying with ADA Standards §§ 4.1.3(11), 4.19.2, 4.19.3, 4.19.4, 4.22.6, and Fig. 31 is provided. There shall be adequate clear floor space in front of this lavatory, and adequate knee space below, and all exposed hot water pipe shall be insulated against contact.

vi. Mounting a 24"- 48" bench to one of the dressing room interior walls, in accordance with ADA Standards §§ 4.1.3(21) and 4.35.4.

vii. Mounting a full-length mirror measuring at least 18" by 54" to one of the dressing room interior walls, in accordance with ADA Standards §§ 4.1.3(21) and 4.35.5.

viii. Mounting a visual fire alarm in the dressing room, in accordance with ADA Standards §§ 4.1.3(14) and 4.28.

ss. Ensure that at least one men's shower room and one women's shower room on the ground level of the backstage area are fully accessible, by:

i. Reconstructing the door to the shower room so that the clear opening width of the door is at least 32 inches, in accordance with ADA Standards §§ 4.1.3(7) and 4.13.5.

ii. Configuring the space in front of the shower room door so that there is sufficient maneuvering space at the door, in accordance with ADA Standards §§ 4.1.3(7), 4.13.6, and Fig. 25.

iii. Configuring the door to the shower room so that it does not swing into the room's clear floor space, in accordance with ADA Standards §§ 4.1.3(11) and 4.23.2.

iv. Removing any cabinetry from underneath the lavatory so that there is clear floor space and knee space under the lavatory, in accordance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.19.3, 4.22.6, and Fig. 31.

v. Insulating the lavatory hot water and drain pipe against contact, in accordance with ADA Standards §§ 4.1.3(11), 4.19.4, and 4.22.6.

vi. Providing adequate clear floor space at the toilet, in accordance with ADA Standards §§ 4.1.3(11), 4.16, 4.23.4, and Fig. 28.

vii. Adjusting the toilet seat so that it is between 17 and 19 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(11), 4.16.3, and 4.23.4.

viii. Providing grab bars at the toilet, in accordance with ADA Standards §§ 4.1.3(11), 4.16.4, 4.23.4, 4.26, and Fig. 29.

ix. Providing adequate clear floor space at the shower stall, in accordance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Fig. 35.

x. Providing an opening into the shower stall that is at least 36 inches wide, in accordance with ADA Standards §§ 4.1.3(11), 4.21, and 4.23.8.

xi. Modifying the shower stall so that it is 36 inches wide by 36 inches deep, in accordance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Fig. 35.

xii. Providing either grab bars or a seat with bars inside the shower stall, in accordance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Figs. 35 and 36.

xiii. Mounting a visual fire alarm inside the shower room, in accordance with ADA Standards §§ 4.1.3(14) and 4.28.

tt. Reconfigure the counter, or add additional counter space, in the main backstage kitchenette so that a portion of the counter is between 28 and 34 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12) and 4.32.4.

uu. Remount the upper cabinet, or add additional cabinetry, in the main backstage kitchenette so that it is no more than 54 inches above the finish floor, in accordance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

7. All steps taken to remove the architectural barriers at the White House Theater enumerated above shall be completed within 60 days of the Department’s approval of Branson Properties’ proposed plans and specifications. Any modifications performed without approval of the Department that do not strictly comply with the ADA Standards must be redone within 30 days of the Department’s objections.

8. Within 180 days of the entry of this order, Branson Properties shall certify to the Department, in writing, that it has fulfilled all of its obligations under this Settlement Agreement. The certification shall set out each of the obligations that has matured by the date of the certification, and shall describe the steps Branson Properties has taken to fulfill these obligations. The certification shall also identify all continuing obligations under this agreement, and describe how Branson Properties will meet those obligations. Branson Properties will allow representatives of the Department access to the White House Theater so that the Department may monitor compliance with the certification and this Agreement.

9. In the event that Branson Properties is required to obtain, for any of the steps to remove barriers to access specified in this agreement, any building, mechanical, electrical, plumbing or other permit or approval, Branson Properties shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Branson Properties for obtaining the permit or approval, or is denied, Branson Properties shall promptly notify counsel for the Department. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.

10. Branson Properties shall implement the following accessible seating policies for the White House Theater:

a. Individuals without disabilities will not be placed in the designated wheelchair seating areas unless all other seating is full.

b. Individuals with mobility impairments, including individuals using wheelchairs, who request a seat in the designated wheelchair seating in the dining area without paying an additional ticket charge for food service shall be allowed to do so, unless all such seating is occupied. Such persons will pay the same ticket price as will those persons sitting in the sloped floor seating.

c. The White House Theater shall ensure that individuals requesting wheelchair seating are informed as to the configuration of the auditorium seating, the location of the designated wheelchair seating, and the nature of access to the designated wheelchair seating.

Branson Properties shall inform and train all staff responsible for taking reservations and seating patrons regarding these seating policies.

11. Within 30 days of the effective date of this Agreement, Branson Properties will prominently post the attached “Notice” at all White House Theater ticket counters. Copies of the Notice will also be made available to any individual upon request.

12. In consideration of the promises made in ¶¶ 6 through 11 above, the Department agrees to close the investigation of Complaint Number 202-43-38 and to refrain from bringing a civil action against Branson Properties or Empire Bank.

ENFORCEMENT

13. The Department may review compliance with this Settlement Agreement at any time. Such compliance review may include monitoring usage of assistive listening devices in the White House Theater auditorium. If the Department believes that Branson Properties has violated this Agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from Branson Properties. If the parties are not able to reach an amicable resolution of the matter, the Department may file a civil action to enforce the Agreement in federal district court. If the court makes a determination of a violation of this Agreement, such failure to comply shall be treated as a violation of the ADA, and the Department may seek all remedies provided in 42 U.S.C. § 12188. As part of such remedies, the United States may seek a civil penalty as specifically provided in 42 U.S.C. § 12188(b)(2)(C)(ii).

14. Failure by the Department to seek enforcement of this Settlement Agreement with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of this Agreement.

IMPLEMENTATION

15. This Settlement Agreement resolves all issues raised in Department of Justice Complaint Number 202-43-38. It is limited to those issues and does not address Branson Properties’ other obligations under the ADA, including physical access at any other facility or facilities owned, leased, or operated, now or in the future, by Branson Properties. This Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of Branson Properties, as well as any person acting in concert with Branson Properties, and Branson Properties has a duty to so notify all such principals, agents, and successors. This Agreement constitutes the entire agreement between the parties relating to this action, 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 Agreement shall be enforceable.

16. The United States alleges that the White House Theater contains architectural barriers other than those designated to be remedied by paragraph 6 above, but has chosen not to address these barriers in this Agreement. Should removal of such barriers become readily achievable in the future, Branson Properties is urged to remove these barriers.

17. This Settlement Agreement is a public document. A copy of this document, or any information concerning its contents, may be made available to any person.

18. The person signing this document for Branson Properties represents that he is authorized to bind Branson Properties to this Agreement.

19. Any notice required to be given pursuant to this Settlement Agreement shall be sent by certified mail, return receipt requested, to the parties at the following addresses:

a. If by Branson Properties or Empire Bank to the Department, to:

John L. Wodatch
Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

with a copy to:

Lewis Bossing
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

b. If by the Department to Branson Properties, to:

Cullie R. Wehr, Jr.
Wehr, Wehr, Johnson & Bridgeforth
1915-A West Sunshine
Springfield, MO 65807

with a copy to:

Frank C. Carnahan
Carnahan, Evans, Cantwell & Brown, PC
1949 East Sunshine, Suite 4-410
P.O. Box 10009 G.S.S.
Springfield, MO 65808-0009

c. If by the Department to Empire Bank, to:

Joseph W. McCarty, Jr.
Senior Vice President
Empire Bank
P.O. Box 3397
Springfield, MO 65808

with a copy to:

Paul Wacker, Esq.
Law Offices of Paul Wacker, LLC
1345 East Sunshine, Suite 106
Springfield, MO 65804

20. The effective date of this Agreement is the date of the last signature below.

21. This Agreement will remain in effect for five years from its effective date.

Agreed and Consented to:

FOR BRANSON PROPERTIES USA, LLLP

FOR UNITED STATES OF AMERICA

By: _______________________ Cullie R. Wehr Trustee of the Cullie R. Wehr, Jr. RLTA dated March 9, 1984, as amended, sole member of Branson U.S.A., a Missouri limited liability company, sole general partner of Branson Properties U.S.A., LLLP 2-25-2002 Date FOR EMPIRE BANK Joseph W. McCarty, Jr. Senior Vice President Empire Bank P.O. Box 3397 Springfield, MO 65808 Date By: _______________________ Paul Wacker, Esq. Law Offices of Paul Wacker, LLC 1345 East Sunshine, Suite 106 Springfield, MO 65804 (417) 882-1933 ___ __2-25-02_______ Date

RALPH F. BOYD, JR. Assistant Attorney General Civil Rights Division By:_______________________ JOHN L. WODATCH, CHIEF L. Irene Bowen, Deputy Chief Lewis Bossing Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 3/13/02 Date

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