DJ# 202-19M-3I. Background
1. This matter was initiated by a complaint, dated March 18, 1993, filed with the United States Department of Justice ("the Department"), against Suwannee Swifty Convenience Stores ("Suwannee"), Post Office Box 311, Quitman, Georgia 31643-9986. On August 1, 1997, sixty-three (63) Suwannee Swifty Convenience Stores were purchased by ES & ES Acquisitions Corporation, who used them to form the foundation of a new convenience store company, Swifty Mart Corporation ("Swifty"), 325 John Knox Road, Tallahassee, Florida 32303. 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. § 12188. The complainant, who uses a wheelchair, alleged that half of Suwannee's stores, including those presently owned by Swifty, were inaccessible to persons with mobility impairments.
2. Swifty denies that it acted unlawfully with respect to the complainant and asserts that there was no attempt on the part of the company to deny access to its stores to any persons with disabilities, including those with mobility impairments.
3. Swifty's stores are in the business of selling merchandise commonly associated with convenience stores and selling gasoline from islands or from pump clusters located across from the store's entrance.
4. The parties have agreed to settle these matters without resolving the factual and legal dispute regarding the lawfulness of Swifty's actions.
5. The parties to this Settlement Agreement ("Agreement") are the United States of America and Swifty.
6. This Agreement does not constitute an admission of liability and/or fault on the part of Swifty. The parties enter into this Settlement Agreement in the interests of securing compliance by voluntary means, and agree to the following:II. ADA Coverage
7. Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the Department's title III implementing regulation, 28 C.F.R. Part 36, prohibit discrimination on the basis of disability by public accommodations and require places of public accommodations and commercial facilities to be designed, constructed, and altered in compliance with the ADA Standards for Accessible Design ("Standards"), 28 C.F.R. Part 36, Appendix A..
8. Swifty is a private entity that operates places of public accommodations, which fall within the category of sales establishments, and is covered by title III. 42 U.S.C.
9. The ADA prohibits discrimination against qualified individuals with disabilities, on the basis of disability, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182 (a); 28 C.F.R. § 36.201 (a).
10. The subject of this Agreement is Swifty's obligation under 42 U.S.C.
§ 12182(b)(2)(A)(iv) to remove architectural barriers in existing facilities where such removal is readily achievable and Swifty's obligation under 42 U.S.C. § 12183(a) to undertake alterations in such a manner that they are readily accessible to and usable by people with disabilities to the maximum extent feasible.III. Actions to be Taken by Swifty
11. Swifty agrees to take the following actions:
a. Within 45 days from the effective date of this Agreement, Swifty will take the necessary steps to bring store numbers 111, 144, 164, 166, 182, 185, 186, 221, 233, 263, 272, 284, 287, 289, 296, and 315, as identified in Exhibit A attached hereto and incorporated by reference, into compliance with those aspects of the Standards addressed in the list of ADA violations identified at each store, by completing, but not limiting itself, to the following corrective actions:
1) When the total number of parking spaces provided is between 1 and 25, at least one accessible space must be provided in compliance with Standards §§ 4.1.2.(5)(a), 4.6. One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96" wide minimum and shall be designated "van accessible" as required by Standards §§ 4.1.2.(5)(b) and 4.6.4. Accessible parking spaces shall be designated as reserved by a sign showing the symbol of accessibility (Standards § 4.30.7). Spaces complying with 4.1.2(5)(b) shall have an additional sign "Van-Accessible" mounted below the symbol of accessibility. Such signs shall be located so they cannot be obscured by a vehicle parked in the space (Standards § 4.6.4). Accessible parking spaces serving a particular building shall be located on the shortest accessible route of travel from adjacent parking to an accessible entrance (Standards § 4.6.2). Swifty agrees to survey store numbers 111, 144, 164, 166, 182, 185, 186, 221, 233, 263, 272, 284, 287, 289, 296, and 315 and to ensure that they comply with the requirements discussed in this paragraph.
2) Curb ramps complying with 4.7 shall be provided wherever an accessible route crosses a curb. The least possible slope shall be used for any ramp. The maximum slope for a ramp in new construction shall be 1:12 (Standards § 4.8.2). Curb ramps shall be located or protected to prevent their obstruction by parked vehicles (Standards § 4.7.8). Transitions from ramps to walks, gutters, or streets shall be flush and free of abrupt changes. Maximum slopes of adjoining gutters, road surface immediately adjacent to the curb ramp, or accessible route shall not exceed 1:20 (Standards § 4.7.2). If a curb ramp is located where pedestrians must walk across the ramp, or where it is not protected by handrails or guardrails, it shall have flared sides; the maximum slope of the flare shall be 1:10 (Standards § 4.7.5). Swifty agrees to survey store numbers 111, 144, 164, 166, 182, 185, 186, 221, 233, 263, 272, 284, 287, 289, 296, and 315 to ensure that they comply with the requirements discussed in this paragraph.
3) A clear floor or ground space at least 30"x 48" that allows either a forward or parallel approach by a person using a wheelchair shall be provided at telephones (Standards § 4.31.2). Wall mounted objects (for example, telephones) may not protrude more than 4" at a height from 27" to 80" above the ground or floor (Standards § 4.4.1). All telephones required to be accessible and complying with 4.31.2 through 4.31.8 shall be equipped with a volume control (Standards § 4.1.3(17)(b)). Telephones required to have a volume control by 4.1.3(17)(b) shall be identified by a sign containing a depiction of a telephone handset with radiating soundwaves (Standards § 4.30.7(2)). Swifty agrees to survey store numbers 111, 144, 164, 166, 182, 185, 186, 221, 233, 263, 272, 284, 287, 289, 296, and 315 to ensure that they comply with the requirements discussed in this paragraph.
b. Swifty agrees to make the following additional modifications at the stores listed in paragraph 11(a) within 45 days from the effective date of this Agreement.
1) Swifty will ensure that an accessible route, as described in § 4.3 of the Standards, is provided between the pump designated as accessible and the service desk or counter. Swifty will ensure that this accessible route is maintained at all times. Swifty will also ensure that sufficient clear floor space, as described in § 4.2 of the ADA Standards, is maintained at the service counter and around the pump at all times.
2) Swifty agrees that the following refueling assistance policies will be placed in effect.
a. Swifty agrees that, if more than one employee is on duty and there is no security risk to the employee at the store, it will provide refueling assistance at the pump to any person with a disability who specifically requests refueling assistance and makes that request known to the Swifty employee.
b. When refueling services are provided to persons with disabilities, no additional charges will be imposed over the self-serve price then currently charged for such products at the store.
c. Swifty will train its employees and implement a policy at it stores to ensure that the accessibility of the pumps is maintained at all times.
3) The parties agree that the modifications, as described in paragraphs 11(b)(1) through 11(b)(2)(c), inclusive, are readily achievable, as defined in 42 U.S.C. § 12181(9) and 28 C.F.R.
c. After completing all actions outlined in paragraph 11(a), above, but in no event later than eighteen months from the effective date of this Agreement, Swifty will survey all other stores owned by the company and bring them into compliance with the Standards.
d. Beginning 30 days from the effective date of this Agreement, and until all renovations outlined in paragraphs 11(a) and (b) have been completed, Swifty will submit written status reports to the Department every month. The status reports will contain the following information: 1) a list of all actions that have been taken since the previous status report (or, in the case of the first status report, since the effective date of this Agreement), 2) documentation of those actions, including blueprints, photographs, signed statements, receipts, contracts, and/or other relevant evidence, 3) a statement of whether any delays are expected in future actions, and if so, a detailed explanation of the reason for the delay and an updated timeline for completion. Swifty's proposed schedule for corrective actions is attached hereto as Attachment A.
e. Swifty agrees that all stores it purchases or leases in the future will meet the requirements of the Standards including those identified in paragraph 11(a).
f. Within 30 days of the effective date of this Agreement, Swifty will pay the United States a civil penalty of $5,000.00.IV. Implementation
12. Under section 308(b)(1)(B) of the ADA, 42 U.S.C. § 12188(b)(1)(B), the Attorney General is authorized to bring a civil action under title III in any situation where a pattern or practice of discrimination is believed to exist or where a matter of general public importance is raised. In consideration of the Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under title III in this matter.
13. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any provision thereof has been violated, it may institute a civil action in Federal district court, following written notice to Swifty of the possible violation and a period of twenty (20) days in which Swifty has the opportunity to cure the first alleged violation. The Attorney General is authorized to seek civil penalties pursuant to 42 U.S.C. § 12188(b)(2)(C). For any subsequent alleged violations of this Agreement, the Department may institute a civil action against Swifty without any waiting period for Swifty to cure the alleged violation.
14. This Agreement is a public document. A copy of this Agreement or any information contained herein may be made available to any person by the Department or Swifty upon request.
15. This Agreement shall become effective as of the date of the last signature below.
16. 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 is limited to the facts as set forth herein, and it does not purport to remedy any other potential violations of the ADA or any other Federal, State or local law. This Agreement does not affect Swifty's continuing responsibility to comply with all aspects of the ADA.
17. Failure by the Department to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be constructed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
18. Each signer of this Agreement represents that he or she is authorized to bind the party he or she represents to the terms of this Agreement.
For the United States:
Bill Lann Lee
Acting Assistant Attorney General
By:_____________________________ Date: _________________
John L. Wodatch, Chief
Renee M. Wohlenhaus, Deputy Chief
Charles Harvey, Investigator
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
Swifty Mart Corporation
By: ____________________________ Date: ___________________
Swifty Mart Corporation
325 John Knox Road
Tallahassee, Florida 32303>