UNITED STATES DISTRICT COURT DISTRICT OF KANSAS ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) v. ) ) No.: 95-1127-MLB (handwritten) GIBSON'S DISCOUNT CENTERS, INC. ) ) Defendant ) ) CONSENT ORDER A. Background 1. The United States filed a complaint to enforce title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C.  12181 through 12189, against Gibson's Discount Centers, Inc. 2. Defendant Gibson's operates retail discount department stores in 31 locations in the states of Colorado, Kansas, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, and Texas. 3. The complaint filed by the United States alleges that architectural barriers prevent or restrict access by individuals with disabilities, including individuals who use wheelchairs, to Gibson's stores, in that several features, elements, and spaces of Gibson's stores are not accessible to or usable by individuals with disabilities, as specified in the Department of Justice's regulation implementing title III of the ADA. See 28 C.F.R.  36.304 and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). The complaint alleges that barriers to access at Gibson's stores include an inadequate number of parking spaces accessible to individuals with 01-05219 disabilities, public use restrooms which are inaccessible to individuals with disabilities, and fitting rooms which are inaccessible to individuals with disabilities. The complaint alleges that the failure to remove these barriers to access violates title III of the ADA. 4. The complaint filed by the United States further alleges that on several occasions since the effective date of the ADA, Gibson's has undertaken renovations, remodeling, or other alterations to its stores. The complaint alleges that in making these alterations to its stores, Gibson's failed to make them in such a manner that, to the maximum extent feasible, the portions of the facilities being altered were made readily accessible to and usable by individuals with disabilities, and failed to provide accessible paths of travel to the altered areas. The complaint alleges that these failures violate title III of the ADA. 5. In April 1994, the parties met in Washington, D.C., to discuss an amicable resolution of this matter. Since that time, the parties have engaged in good faith negotiations in an effort to resolve this dispute expeditiously, without resort to costly and protracted litigation. The parties have agreed to enter into this agreement to be filed simultaneously with the United States' complaint. 6. Gibson's denies that it has violated the ADA. This agreement is a compromise of disputed claims and does not 2 01-05220 represent, and should not be construed to be, an admission of liability on the part of Gibson's. 7. As specified below, Gibson's has agreed to remove architectural barriers at each of its stores, to pay compensatory damages to an individual with a disability, and to pay a civil penalty. B. Accordingly, by consent of the parties, it is hereby ORDERED and DECREED that: 1. This Court has jurisdiction of this action under 42 U.S.C.  12188(b)(1)(B) and 42 U.S.C.  1331 and 1345. 2. Venue is proper in this district. 3. Each of the 31 retail discount department stores operated by Gibson's is a private entity whose operations affect commerce, and each is a sales or rental establishment; Gibson's is thus a public accommodation within the meaning of title III of the ADA. 42 U.S.C.  12181(7)(E); 28 C.F.R.  36.104. 4. Gibson's shall bring each of its stores into full compliance with the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"), in accord with the following schedule: a. Not later than 30 days from the date of this order, Gibson's shall provide at all of its stores the number and kind of parking spaces required by the Standards, sections 4.1.2(5)(a), 4.1.2(5)(b), 4.1.2(7)(a), 4.3.6 3 01-05221 (as it relates to section 4.5.1), 4.6.1, 4.6.2, 4.6.3, 4.6.4 (signage height requirements to conform to local standards, but not less than 60 inches) and 4.6.5. The foregoing notwithstanding, any actions necessary to bring parking spaces or access aisles at any Gibson's store into compliance with the Standards' requirement that parking spaces and access aisles be level, with a slope not exceeding 1:50 in any direction (as required by Standards section 4.6.3), may be taken during any period specified in paragraph B.4.e., below, except that if the Gibson's store in Colby, Kansas, remains open on June 30, 1996, Gibson's shall, by that date, bring the accessible parking spaces and access aisles at that store into full compliance with the requirements of the Standards, including the requirements of section 4.6.3 regarding the slope of parking spaces and access aisles. Signage for accessible parking spaces shall comply with 4.1.2(5)(b), 4.1.2.(7)(a), and 4.30.7. b. Not later than December 31, 1995, Gibson's shall remove all barriers to access at the entrances to each of its stores, such that the entrances to each of its stores will comply with the Standards, sections 4.1.3(7)(a), 4.1.3(7)(c), 4.1.3(7)(d), 4.1.3(8)(a)(i) and (ii), 4.1.6(3)(d), 4.3.9, 4.13.4, 4.13.5, 4.13.7 and Figure 26, 4.13.8, 4.13.9, 4.13.11, 4.13.12, and 4.14.1 4 01-05222 (except as set forth in paragraph B.4.a. of this order and excluding connection to public transportation stops, public streets or sidewalks). The foregoing notwithstanding, any actions necessary to make level (with a slope not exceeding 1:50 in any direction) the ground or floor area within the required maneuvering clearance at any entry door at any Gibson's store (as required by Standards section 4.13.6), may be taken during any period specified in paragraph B.4.e., below. C. Not later than December 31, 1995, Gibson's shall provide at each of its stores all exterior and interior signage required by the Standards, sections 4.1.2(7)(c), 4.1.3(8)(d), 4.1.3(16)(b), 4.30.2, 4.30.3, and 4.30.5. d. Not later than December 31, 1995, Gibson's shall provide at each of its stores at least one checkout counter that complies with the requirements of sections 7.3(2) and 7.3(3) of the Standards; e. In addition to the actions specified in paragraphs B.4.a. through d. above, Gibson's shall, at each of its stores, remove all other barriers to access by December 31, 1999. Toward this end, Gibson's shall be required during the period from the date of this Order through December 31, 1998 to remove all other barriers to access at a rate such that all barriers to access shall have been removed at an aggregate of not less than four 5 01-05223 stores by December 31, 1996, an aggregate of not less than eight stores by December 31, 1997, and an aggregate of not less than 12 stores by December 31, 1998. If any barriers to access remain at any Gibson's stores after December 31, 1998, Gibson's shall remove those barriers during calendar year 1999. 5. Gibson's shall provide to counsel for the United States annual reports on the status of its compliance with this order. These reports shall be provided no later than January 31 in each of 1996, 1997, 1998, 1999, and 2000. The reports shall describe the steps Gibson's has taken to discharge its obligations under this order since the date of this order, or since the date of its last annual report, whichever is more recent. 6. Within 20 days of the date of this order, Gibson's shall pay to Richard L. Knight compensatory damages in the sum of fifteen thousand dollars ($15,000.00). 7. Gibson's shall pay to the United States a civil penalty in the amount of thirty thousand dollars ($30,000.00). Gibson's shall pay this penalty in four equal installments of seven thousand five hundred dollars ($7,500.00) without interest. The first payment shall be made within one year of the date of this order; the second payment shall be made within two years of the date of this order; the third payment shall be made within three years of the date of this order, and the fourth payment shall be made within four years of the date of this order. Each of these payments shall be tendered to counsel for the United States. 6 01-05224 8. The parties shall negotiate in good faith to resolve any dispute relating to the interpretation or implementation of this order before bringing the matter to the Court's attention. 9. The Court shall retain jurisdiction of this action to enforce the provisions of this order through December 31, 2000, after which time all of its provisions shall be terminated, unless the Court determines it is necessary to extend any of its requirements, in which case those requirements shall be extended. 10. This agreement relates solely to the facts and events alleged in the United States' complaint and shall govern Gibson's compliance with the ADA at each of the 31 stores operated by Gibson's on the effective date of this order that continue to be operated by Gibson's on any date of measurement of compliance herewith. This agreement does not remedy, and shall not be construed to remedy, any violations of the ADA at any other place of public accommodation operated by Gibson's on or after the date the court signs this order, or any violations of other federal law. Specifically, this agreement does not affect the duties of Gibson's with regard to the alterations and new construction requirements of the ADA, nor with regard to removal of barriers to access in any other facility owned, leased, leased to, or operated by Gibson's. 7 01-05225 11. This instrument reflects the entire agreement between the parties. SO ORDERED this 17 day of March , 1995. /s/ MONTI L. BELOT (stamp) _____________________________________ United States District Judge Agreed and Consented to: For Plaintiff United States of America: (Signature) ________________________ JOAN A. MAGANA EMILY METZGER THOMAS M. CONTOIS Kansas Supreme Court No. 10750 North Carolina Bar No. 17787 Assistant U.S. Attorney Disability Rights Section District of Kansas Civil Rights Division 1200 Epic Center U.S. Department of Justice 301 North Main Post Office Box 66738 Wichita, Kansas 67202 Washington, D.C. 20035-6738 Telephone: (316) 269-6481 Telephone: (202) 514-6014 For Defendant Gibson's Discount Centers, Inc.: (Signature) ________________________________ F. JOHN HAGELE Pennsylvania Bar Number 02216 Ninth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 Telephone: (215) 851-8640 8 01-05226 UNITED STATES DISTRICT COURT DISTRICT OF KANSAS ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) No.: ) GIBSON'S DISCOUNT CENTERS, INC. ) COMPLAINT ) Defendant. The United States of America alleges: 1. This action is brought by the United States to enforce title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.  12181 through 12189, against Gibson's Discount Centers, Inc. ("Gibson's"). 2. This court has jurisdiction of this action under 42 U.S.C.  12188(b)(1)(B) and 28 U.S.C.  1331, 1345. 3. Defendant Gibson's is a Delaware corporation with its principal place of business at 100 Chaffin Industrial Park, Dodge City, Kansas. 4. Venue is proper in this judicial district. The defendant's principal place of business is in this district, and many of the acts of discrimination alleged in this complaint occurred in the state of Kansas. 5. Defendant Gibson's operates retail discount department stores in 31 locations in the states of Colorado, Kansas, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, and Texas. Each of the retail discount department stores operated by Complaint Page 1 01-05227 Gibson's is a private entity whose operations affect commerce, and each is a sales or rental establishment; Gibson's is thus a public accommodation within the meaning of title III of the ADA. 42 U.S.C.  12181(7)(E); 28 C.F.R.  36.104. 6. Numerous architectural barriers prevent or restrict access by individuals with disabilities, including individuals who use wheelchairs, to Gibson's stores, in the several features, elements, and spaces of Gibson's stores are not accessible to or usable by individuals with disabilities, as specified in the title III regulation. See 28 C.F.R.  36.304 and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). Barriers to access at Gibson's stores include, but are not necessarily limited to: a. An inadequate number of parking spaces accessible to individuals with disabilities, including individuals who use wheelchairs; b. Public use restrooms for both men and women which are inaccessible to individuals with disabilities, including individuals who use wheelchairs; and c. Fitting rooms which are inaccessible to individuals with disabilities, including individuals who use wheelchairs. 7. At many of its stores, it would be readily achievable for Gibson's to remove some or all of the architectural barriers identified in paragraph 6, but Gibson's had failed to do so, in violation of sections 302(a) and 302(b)(2)(A)(iv) of title III of Complaint Page 2 01-05228 the ADA, 42 U.S.C.  12182(a) and 12182(b)(2)(A)(iv), and in violation of section 36.304 of the title III regulation, 28 C.F.R.  36.304. 8. Richard L. Knight has multiple sclerosis and uses a wheelchair for mobility. He is an individual with a disability within the meaning of the ADA. 42 U.S.C.  12102(2); 28 C.F.R.  36.104. 9. On several occasions after January 26, 1992, Mr. Knight has patronized or attempted to patronize the Gibson's store in Goodland, Kansas, but the architectural barriers to access at the Goodland store have prevented or restricted his access to the goods and services provided there. Mr. Knight has been repeatedly distressed and inconvenienced by the architectural barriers to access in the Goodland store, and is entitled to compensation for his injuries. 10. Upon information and belief, in addition to Mr. Knight, other individuals with disabilities may have been injured by the failure of Gibson's to remove architectural barriers to access at many of its stores, and are entitled to compensation for their injuries. 11. On several occasions since January 26, 1992, Gibson's has undertaken renovations, remodeling, or other alterations to its stores. These alterations include, but are not necessarily limited to: a. Beginning in September 1992, renovating and remodeling a vacant building in Lovington, New Mexico, to Complaint Page 3 01-05229 transform it into a Gibson's store, including changes to the facility's parking lot, display aisles, checkstands, fitting rooms, and restrooms; b. Beginning in February 1993, renovating and remodeling a vacant building in Dalhart, Texas, to transform it into a Gibson's store, including changes to the facility's parking lot, entrances, display aisles, checkstands, fitting rooms, and restrooms; c. Beginning in August 1992, renovating and remodeling portions of a Gibson's store in Liberal, Kansas, including the store's fitting rooms; d. Beginning in April 1992, renovating and remodeling portions of a Gibson's store in Garden City, Kansas, including the store's fitting rooms; e. Beginning in November 1993, resurfacing the parking lot of the Gibson's store in Colby, Kansas; f. Beginning in June 1992, renovating and remodeling a vacant building in Orchard Mesa, Colorado, to transform it into a Gibson's store, including changes to the facility's entrance, checkouts, fitting rooms, and restrooms; g. Beginning in August 1993, renovating and remodeling a Gibson's store in O'Neil, Nebraska, including changes to the facility's display aisles, checkouts, fitting rooms, and restrooms; Complaint Page 4 01-05230 h. Beginning in June 1993, renovating and remodeling a Gibson's store in Broken Bow, Nebraska, including changes to the facility's display aisles, checkouts, fitting rooms, and restrooms; and i. In 1992 and again in 1993, restriping the parking lots at every Gibson's store. 12. Each of the instances of remodeling, renovation, resurfacing of parking lots, and restriping of parking lots identified in paragraph 11 was an alteration to the facility that affects or could affect the usability of the facility, or the usability of the portion of the facility being altered. 13. In making the alterations identified in paragraphs 11(a) through (e), and, upon information and belief, in making the alterations identified in paragraphs 11(f) through (i), Gibson's failed to make them in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in violation of 42 U.S.C.  12182(a), 12183(a)(2) and 28 C.F.R.  36.402, 36.403. In particular, when making alterations to its stores, Gibson's has failed to make them in the manner required by title III of the ADA in at least the following respects: a. When undertaking alterations to areas of its store that contain primary functions, as it did, for example, at its stores in Lovington, New Mexico, Dalhart, Texas, Liberal, Kansas, and Garden City, Kansas, Gibson's has Complaint Page 5 01-05231 failed to provide an accessible path of travel to the altered area, and has failed to make the restrooms, telephones, and drinking fountains which serve the altered area accessible to individuals with disabilities, including individuals who use wheelchairs. See 42 U.S.C.  12183(a)(2); 28 C.F.R.  36.402, 36.403, 36.406; Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A,  4.1.6(2) ("Standards"). b. When altering fitting rooms, as it did, for example, at its stores in Lovington, New Mexico, Dalhart, Texas, Liberal, Kansas, and Garden City, Kansas, Gibson's has failed to make the altered fitting rooms readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. See 42 U.S.C.  12183(a)(2); 28 C.F.R.  36.402, 36.406; Standards  4.35. c. When altering public use toilet rooms, as it did, for example, at its stores in Lovington, New Mexico, and Dalhart, Texas, Gibson's has failed to provide signage which is readily accessible to and usable by individuals with disabilities. See 42 U.S.C.  12183(a)(2); 28 C.F.R.  36.402, 36.406; Standards  4.1.3(16)(a), 4.30. d. When altering parking lots, as it did, for example, at its store in Colby, Kansas, Gibson's has failed to Complaint Page 6 01-05232 provide the number and kind of parking spaces required by title III and the Standards. See 42 U.S.C.  12183(a)(2); 28 C.F.R.  36.402, 36.406; Standards  4.1.2(5), 4.6. 14. Upon information and belief, individuals with disabilities may have been injured by the failure of Gibson's to make alterations as required by title III of the ADA and the title III regulation, and are entitled to compensation for their injuries. 15. The failures of Gibson's to remove architectural barriers to access at its stores, and to make the alterations to its stores in the manner required by title III of the ADA and the title III regulation, constitute a pattern or practice of discrimination within the meaning of 42 U.S.C.  12188(b)(1)(B)(i) and 28 C.F.R.  36.503(a), and unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b). Complaint Page 7 01-05233 PRAYER FOR RELIEF The United States prays that the Court: A. Declare that Gibson's Discount Centers, Inc. has violated title III of the Americans with Disabilities Act, 42 U.S.C.  12181 through 12189, and the regulations thereunder, 28 C.F.R. Part 36, by 1) failing to remove architectural barriers to access by individuals with disabilities, where such removal is readily achievable, and 2) failing to undertake alterations to its facilities in such a manner that to the maximum extent feasible, the altered portions of the facilities are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; B. Order the defendant to remove architectural barriers to access at each of the stores it operates, to the extent that it is readily achievable to do so, including but not necessarily limited to: 1) providing the number and kind of parking spaces accessible to and usable by individuals with disabilities required by the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"), in compliance with the provisions of the Standards governing parking spaces; 2) providing public use restrooms for both men and women which are accessible to and usable by individuals with disabilities, in compliance with the provisions of the Standards governing toilet rooms; and Complaint Page 8 01-05234 3) providing fitting rooms which are accessible to and usable by individuals with disabilities, in compliance with the provisions of the Standards governing fitting rooms. C. Order the defendant to undertake such rebuilding, repairs, or other structural changes as may be necessary to bring all alterations to its stores undertaken since January 26, 1992, into full compliance with the requirements of title III of the ADA, the title III regulation, and the Standards; D. With respect to any alterations it may undertake in the future, order the defendant to make those alterations in such a manner that, to the maximum extent feasible, the altered facilities or portions of facilities are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as required by section 303(a) of title III of the ADA, 42 U.S.C.  12183(a), sections 36.402, 36.403, and 36.406 of the title III regulation, 28 C.F.R.  36.402, 36.403, 36.406, and the Standards; E. Assess a civil penalty against the defendant in an amount authorized by 42 U.S.C.  12188(b)(2)(C), to vindicate the public interest; F. Award compensatory damages to Mr. Knight and any other persons aggrieved by the illegal acts of discrimination committed by the defendant; and Complaint Page 9 01-05235 G. Order such other appropriate relief as the interests of justice may require. JANET RENO Attorney General (Signature) By:___________________________ RANDALL K. RATHBUN DEVAL L. PATRICK United States Attorney Assistant Attorney General District of Kansas Civil Rights Division 1200 Epic Center 301 N. Main Wichita, Kansas 67202 (Signature) Tel: (316) 269-6481 __________________________ JOHN L. WODATCH, Chief Public Access Section Civil Rights Division (Signature) __________________________ JOAN A. MAGAGNA THOMAS M. CONTOIS North Carolina Bar Number 17787 Attorneys Public Access Section Civil Rights Division U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-6738 Tel: (202) 514-6014 REQUEST FOR PLACE OF TRIAL The United States requests that trial of this matter be had in the city of Wichita, Kansas. Complaint Page 10 01-05236