COMPLAINT DJ 202-37-60
1. This matter was initiated by a complaint filed with the United States Department of Justice (Department) against Avis Rent A Car, Inc. The complaint was investigated by the Department under the authority granted by section 308(b) of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101 et seq. The complaint alleges that Avis violated the ADA by denying individuals who use wheelchairs access to the shuttle service that Avis operates between the Detroit Metro Airport terminal and Avis' rental car service center.
2. To avoid unnecessary and costly litigation, the parties have agreed to resolve this action as set forth below.
3. The parties to this Settlement Agreement (Agreement) are the United States of America and Avis Rent A Car, Inc. (Avis). "Avis" shall mean and refer to Avis Rent A Car, Inc., and its agents, employees, parents, subsidiaries, affiliates, assignees, and/or successors-in-interest.
4. Avis is a public accommodation, as defined in section 301(7)(e) of the ADA, 42 U.S.C. § 12181(7)(e), and its implementing regulation, 28 C.F.R. § 36.104. With respect to the shuttle bus system Avis operates at the Detroit Metro Airport (the "Detroit Airport"), Avis is also a private entity, as defined in section 301(6) of the ADA, 42 U.S.C. § 12181(6), and its implementing regulations, 28 C.F.R § 36.104 and 49 C.F.R. § 37.3, which is not primarily engaged in the business of transporting people.
5. Based on its investigation, the Department concluded that Avis operates its shuttle system at the Detroit Airport as a fixed route system, as such term is defined in section 301(4) of the ADA, 42 U.S.C. § 12181(4), and its implementing regulation, 49 C.F.R. § 37.3. The ADA imposes certain obligations on private operators of fixed route systems, as more particularly set forth in section 302(b)(2)(B) of the ADA, 42 U.S.C. § 12182(b)(2)(B), and its implementing regulation, 49 C.F.R. § 37.101.
6. In addition, as a public accommodation, Avis is subject to certain obligations set forth in title III of the ADA,
42 U.S.C. §§ 12181 through 12189, and the Department's regulation implementing title III, 28 C.F.R. Part 36, including, but not limited to, the obligation to remove architectural barriers to access in existing facilities and transportation barriers in existing vehicles, when such barrier removal is readily achievable. See section 302(b)(2)(A) of the ADA, 42 U.S.C.
§ 12182(b)(2)(A), and its implementing regulations, 28 C.F.R.
§ 36.304 and § 36.310(b).
7. By letter dated April 24, 1996 (the "Notice Letter"), the Department notified Avis that, based on its investigation and the information Avis provided in response to the Department's request, Avis was, in general, providing an acceptable level of service to individuals who use wheelchairs. However, in its letter, the Department also informed Avis that it had concluded that Avis was in violation of certain of the provisions of the ADA cited above relating to (i) the acquisition of accessible shuttle vehicles, (ii) the provision of curbside service to individuals who use wheelchairs, (iii) the existence of architectural barriers that the Department believed should have been removed under Avis' obligation to engage in readily achievable barrier removal, and (iv) the provision of effective communication for individuals who are deaf or hard of hearing. Since that time, Avis and the Department have engaged in negotiations in an effort to resolve this matter without resort to litigation. During this period Avis has taken action to eliminate most of the violations identified by the Department in the Notice Letter by, for example, acquiring and deploying accessible shuttle vehicles and removing architectural barriers at the Detroit Airport and other Avis rental car facilities nationwide.
8. The original purpose of this Agreement was to set forth the agreement between the parties regarding the remaining violations at the Detroit Airport. However, in the course of negotiations, Avis determined that it would prefer to enter into a nationwide settlement in order to establish its obligation to acquire, modify, and deploy shuttle vehicles at its corporately-operated airport rental car facilities nationwide (the "Airport Facilities"), whether currently or hereafter operated by Avis. In addition, the parties desire to reach a comprehensive agreement regarding the actions Avis has taken and will take nationwide to establish policies and procedures for providing curb-side service to individuals with mobility impairments and/or those who are deaf or hard of hearing.
9. Avis does not admit that it is in violation of any of the provisions of the ADA with respect to the operation of its shuttle services at the Detroit Airport or any of its other Airport Facilities.
10. Therefore, in order to avoid further investigation and possible litigation, and in consideration of the mutual promises and covenants contained in this Agreement, the Department and Avis have entered into this Settlement Agreement.
B. Actions Regarding Shuttle Vehicles
11. In the Notice Letter the Department informed Avis that it had concluded that the shuttle system Avis operates at the Detroit Airport is a fixed route system, as such term is defined in section 301(4) of the ADA, 42 U.S.C. § 12181(4), and its implementing regulation, 49 C.F.R. § 37.3. The ADA imposes certain obligations on private operators of fixed route systems, as more particularly set forth in section 302(b)(2)(B) of the ADA, 42 U.S.C. § 12182(b)(2)(B), and its implementing regulation, 49 C.F.R. § 37.101. Based on its investigation and the information provided by Avis, the Department concluded that two GMC/RTS shuttle vehicles acquired by Avis in 1992 and 1994, respectively, and deployed at the Detroit Airport were required to be readily accessible to and usable by individuals who use wheelchairs, but were not. To remedy this alleged violation, the Department proposed that Avis make these vehicles accessible or replace them with new, accessible vehicles of the same capacity and design. As of the Effective Date of this Agreement (as hereafter defined), both of these vehicles have been refurbished and equipped with wheelchair lifts. Avis has also deployed an additional accessible shuttle vehicle of the same model at its Detroit Airport Facility. However, as set forth in paragraph 8 above, the parties have also agreed to address this issue on a nationwide basis.
12. In order to resolve this matter, Avis and the Department have agreed to treat all shuttle systems at Avis' Airport Facilities, whether currently or hereafter operated by Avis, as fixed route systems, as defined in section 301(4) of the ADA, 42 U.S.C. § 12181(4), and its implementing regulation, 49 C.F.R. § 37.3. Avis does not concede that such systems are fixed route systems and the Department has not investigated the manner in which such shuttle systems other than the system at the Detroit Airport are operated, in order to make a determination as to the type of system being operated in each location.
13. As noted in paragraph 7 above, Avis has already taken actions to eliminate most of the violations alleged by the Department in the Notice Letter. Avis hereby represents and warrants to the Department that all shuttle vehicles that Avis has purchased or leased for use at any Airport Facility beginning on February 16, 1996, and continuing through the Effective Date of this Agreement, which have a capacity of over 16 passengers, including the driver (hereinafter, "Large Capacity Vehicles"), are accessible to individuals with disabilities including those who use wheelchairs. Avis agrees that, following the Effective Date of this Agreement, all Large Capacity Vehicles purchased or leased for use at any Airport Facility, whether the facility is currently operated by Avis or first operated by Avis after the Effective Date of this Agreement, shall also be accessible regardless of whether an accessible shuttle vehicle would otherwise be required by the ADA or its implementing regulations.
14. With respect to the shuttle systems at all Airport Facilities operated by Avis as of the Effective Date of this Agreement, except for the systems at Las Vegas and Los Angeles, Avis hereby agrees that, on or before December 31, 2000, all such systems will be in full compliance with the regulations governing the acquisition of shuttle vehicles for fixed route systems. The parties hereby agree that the shuttle systems at Las Vegas and Los Angeles, which were acquired by Avis after the Department began this investigation, must be in full compliance on or before December 31, 2003. For purposes of this Agreement, full compliance shall mean that all vehicles for which a solicitation for purchase or lease was made after August 25, 1990, for use at one of the Airport Facilities (whether currently or hereafter operated by Avis) and which have a capacity of over 16 passengers, including the driver, shall be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. See 49 C.F.R. §§ 37.101 (a) and (b). Avis agrees to meet this goal by either removing or refurbishing all noncomplying vehicles currently part of such shuttle systems. Avis further agrees that such removal and refurbishment shall be completed in accordance with the schedule set forth in the document entitled "Avis Shuttle Bus Listing" and dated 3/29/99, which is attached hereto as Exhibit A and hereby made a part of this Agreement. Following the date the shuttle system at any Airport Facility is brought into full compliance with the ADA, Avis may transfer one or more of the shuttle vehicles at that facility, as listed on Exhibit A, to other Airport Facilities so long as such transfer does not result in a reduction in the number of accessible vehicles at any Airport Facility.
15. With respect to the shuttle systems at all Airport Facilities acquired by Avis after the Effective Date of this Agreement, Avis hereby agrees that all such systems will be in full compliance with the regulations governing the acquisition of shuttle vehicles for fixed route systems within two (2) years of the date of acquisition. Avis agrees to meet this goal by either removing or refurbishing all noncomplying vehicles currently part of such shuttle systems.
16. Avis further agrees that, on or before December 31, 2000, the shuttle systems at all Airport Facilities operated by Avis on the Effective Date of this Agreement will each contain at least one accessible shuttle vehicle, regardless of whether an accessible shuttle vehicle is required by the ADA or its implementing regulations. The shuttle system at Miami International Airport shall be exempt from the requirements set forth in this paragraph because a height-restricted tunnel along the shuttle route precludes the use of lift-equipped vehicles. Avis agrees that the deployment of such accessible vehicles shall be completed in accordance with the schedule attached hereto as Exhibit A. Avis further agrees that, within sixty (60) days of its acquisition of any new Airport Facility with a shuttle system, whether that system could be considered a fixed route or demand responsive system, the shuttle system at that facility shall contain at least one accessible shuttle vehicle regardless of whether an accessible shuttle vehicle would otherwise be required by the ADA or its implementing regulations. Avis agrees that from and after the date it is required by this paragraph to deploy an accessible vehicle in the fleet at a given Airport Facility, it will ensure that at least one accessible shuttle vehicle will be permanently deployed and fully operational at that location at all times. This obligation is binding upon Avis, and its successors and assigns for as long as any shuttle system, whether fixed route, demand responsive, or of any other nature, is operated at that Airport Facility.
17. Avis hereby represents and warrants to the Department that the information set forth in Exhibit A is true, complete, and correct as of the Effective Date of this Agreement. Any breach of this representation and warranty shall constitute a breach of this Agreement and the Department, at its sole option, may exercise its remedies under this Agreement, including the remedies set forth inparagraph 28.
C. Curbside Service
18. In order to provide equivalent service to it customers at Detroit Airport with disabilities, including those who use wheelchairs, Avis currently provides curbside pick-up and drop-off services using regular Avis fleet vehicles. Avis hereby agrees to transport such customers to and from its rental car service center in either (i) a van equipped with a wheelchair lift, or (ii) an accessible shuttle vehicle from its Detroit fleet. Any vehicle used to comply with the requirements of this paragraph shall meet the Accessibility Specifications for Transportation Vehicles set forth in 49 C.F.R. Part 38, Subpart B. The service provided pursuant to this paragraph must meet the equivalent service standard set forth in 49 C.F.R. § 37.105. Avis may meet the equivalency requirement by means such as sharing or pooling accessible vehicles among entities with similar obligations, or by contracting with third-party transportation service providers, as long as Avis ensures the provision of equivalent service.
19. In order to clarify the procedures used by Avis at Detroit Airport to provide equivalent service to individuals with disabilities, including those who use wheelchairs, Avis has adopted the policies and procedures set forth in the Statement of Policies and Procedures for the Provision of Equivalent Service to Individuals Who Use Wheelchairs (Policy Statement), attached hereto as Exhibit B and hereby made a part hereof. The Policy Statement was adopted by Avis and made effective as of May 10, 1996. Avis hereby reaffirms that it has adopted the Policy Statement and that it is in full force and effect.
20. Avis has determined that it wishes to adopt the policies and procedures applicable to its facilities at the Detroit Airport, as set forth in the Policy Statement, to all its Airport Facilities nationwide, whether currently or hereafter operated by Avis. Within sixty (60) days of the Effective Date of this Agreement, Avis agrees to adopt a policy statement for each Airport Facility it currently operates, which shall be identical in form and substance to the Policy Statement for the Detroit Airport (Exhibit B), except for any minor modifications necessary to address local conditions at a particular facility. Avis also agrees that, within sixty (60) days after it begins serving customers at any new Airport Facility, it will adopt such a policy statement for that facility.
21. Avis shall inform all employees who have contact with the public of the modification in policies and procedures described above and shall disseminate copies of the Policy Statement to all such employees. Employees at the Detroit Airport shall receive copies of the Policy Statement within fifteen (15) days of the Effective Date of this Agreement. Employees at all other Airport Facilities shall receive copies of the appropriate policy statement on or before the date Avis is require to adopt it. Further, Avis shall remind all employees who have contact with the public of the policies and procedures set forth in the applicable policy statement on an annual basis for the five years following the latter of (i) the Effective Date of this Agreement, or (ii) the date the Airport Facility was acquired. Avis shall incorporate the new policies and procedures into all appropriate training manuals and programs for employees.
22. All prospective renters, upon request, shall be advised of Avis' policies and procedures as set forth in the Policy Statement. A copy of the applicable policy statement shall be made available at each airport rental car service center to all prospective renters, upon request, for a period of one year following the latter of sixty (60) days after (i) the Effective Date of this Agreement, or (ii) the date the Airport Facility was acquired.
23. Avis shall notify all current licensees of the U.S. Avis Rent A Car system of the modification in policies and procedures described above, shall provide such licensees with a copy of the Policy Statement, and shall encourage current licensees to adopt such policies and procedures.
24. Avis shall require all licensees entering into a new contract or renewing an existing contract on or after the Effective date of this Agreement to adopt the change in policies and procedures described above.
D. Architectural Barriers
25. As Attachment A to the Notice Letter, the Department provided Avis with a list of physical barriers to access at Avis' Detroit Airport Facility. In response, Avis informed the Department that access improvements to its Detroit Airport facilities were planned as part of its nationwide program of barrier removal. At the Department's request, Avis agreed to accelerate barrier removal at the Detroit Airport and has provided evidence that barrier removal was completed as of December 16, 1998. Although Avis has informed the Department that it has engaged in substantial barrier removal efforts at its corporately-operated sites nationwide, this Agreement addresses barrier removal at Avis' Detroit Airport Facility only.
E. Effective Communication
26. Avis currently provides a direct telephone connection between the Airport terminal and its service center that customers, including its customers who use wheelchairs, may use to request delivery of their cars and to otherwise transact business with Avis; however no direct TDD service is provided. Avis acknowledges that, pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), 28 C.F.R. § 36.303(c), it has the obligation to ensure effective communication with individuals with disabilities. The Department has informed Avis that its present method of communicating with the public at the Airport terminal does not ensure effective communication with individuals who are deaf, hard of hearing, or otherwise unable to communicate by telephone. Avis hereby agrees to develop and implement a system for providing effective communication with its customers at the Detroit Airport. The system must be in operation by the date that is six months from the Effective Date of this Agreement. At a minimum, Avis shall install appropriate signage directing individuals to the location of airport TDD's and ensure that TDD's and trained personnel are available to respond to calls from the airport terminal to its Detroit rental car facility. Any proposed system must receive the prior written approval of the Department, which approval shall not be unreasonably withheld or delayed.
F. Implementation and Enforcement of the Settlement Agreement
27. The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the ADA, to bring a civil action to enforce title III of the ADA in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit under title III with respect to the specific matters agreed to herein.
28. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any portion of it has been violated, it will so notify Avis in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Avis, it may elect to either:
(i) institute a civil action in federal district court seeking to enforce the terms of this Agreement. If the United States demonstrates in such a proceeding that Avis has failed to comply with any portion of this Agreement, Avis shall be liable to the United States for a civil penalty in an amount of $50,000.00 or such other amount as the court may determine is appropriate. If the United States demonstrates that any individual has been aggrieved by the violation, Avis shall compensate each such individual in an amount of no less than $ 5,000. The United States may also seek other appropriate relief as authorized by the ADA; or
(ii) notify Avis that the Agreement is no longer operative and reopen its investigation of Department of Justice Complaint # 202-37-60 and/or commence litigation under title III of the ADA in federal district court.
29. The parties agree that in the event the Department seeks enforcement of this Agreement in federal district court or initiates litigation under title III in federal district court, the United States Court for the District of Columbia shall have personal and subject matter jurisdiction over such litigation, in all respects.
30. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement.
31. This Agreement is a public document. A copy of this document or any information contained herein may be made available to any person. Avis or the Department shall provide a copy of this Agreement to any person upon request.
32. This Agreement shall become effective as of the date of the last signature below (the "Effective Date") and shall expire on the date that is seven (7) years from the Effective Date. This Agreement shall be binding on Avis and its successors and assigns. The owners and operators of Avis have a duty to so notify all such successors in interest.
33. 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 shall be enforceable. This Agreement does not purport to remedy any other violations of the ADA or any other federal law other than those specifically addressed herein. This Agreement does not affect Avis' continuing responsibility to comply with all aspects of the ADA.
34. A signatory to this document in a representative capacity for a partnership, corporation, or other such entity represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
For the United States:
Bill Lann Lee
Acting Assistant Attorney
General for Civil Rights
John L. Wodatch, Chief
L. Irene Bowen, Deputy Chief
Anne Marie Pecht, Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-6738
For Avis Rent A Car, Inc.:
By: Date: F. Robert Salerno
President and Chief Operating Officer
Avis Rent A Car System, Inc.
900 Old Country Road
Garden City, New York 11530
Exhibit A: Schedule
Exhibit B: Policy Statement>