IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
Civil Action No.: 98-
CONSENT AGREEMENT AND ORDERA. Background
- The United States of America has filed concurrently with this Consent Agreement and Order a civil action to enforce title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. ï½§ 12188(b)(1)(B), against Omega Professional Center V Condominium Council ("Defendant").
- Omega Professional Center V Condominium Council is an unincorporated association established in accordance with the Declaration Submitting Real Property to the Unit Property Act.
- The United States alleges that the (a) Defendant is a private entity whose operations affect commerce; (b) Defendant owns operates or leases the professional office of a health care provider, and accordingly, Defendant is subject to title III of the ADA, 42 U.S.C. ï½§ï½§ 12181(7)(F) and 12182, and the implementing regulation at 28 C.F.R. ï½§ 36.104.
- The United States further alleges that Mr. George Himes ("Mr. Himes") is a person with a physical disability within the meaning of the ADA, 42 U.S.C. ï½§ 12102(2); 28 C.F.R. ï½§ï½§ 36.104 et seq. Mr. Himes uses a wheelchair to gain mobility.
- The United States further alleges that Ms. Daniese McMullen-Powell ("Ms. McMullen-Powell") is a person with a physical disability within the meaning of the ADA, 42 U.S.C. ï½§ 12102(2); 28 C.F.R. ï½§ï½§ 36.104 et seq. Ms. McMullen-Powell uses a wheelchair to gain mobility.
- The United States further alleges that (a) Mr. Himes and Ms. McMullen-Powell regularly frequent the Total Care Physicians, P.A. ("Total Care") office in the Omega Professional Center, (b) Total Care is their current physician of record; (c) they routinely experience difficulty gaining access to the medical office; and (d) Complainants cannot enter the doctor's office independently because of the barriers to access.
- The United States further alleges that Mr. Himes and Ms. McMullen-Powell's difficulties in gaining access to the Total Care office cause them to suffer extreme humiliation, emotional distress, frustration, and anxiety.
- The United States further alleges that the public accommodation provided by the Defendant at the Total Care office located in the Omega Professional Center is not accessible to persons with disabilities. Barriers to accessibility include, but are not limited to, the following:
- an inadequate access aisle for side lift vans at the designated parking spaces for persons with disabilities;
- a curb ramp that is too steep;
- an inadequate narrow sidewalk between parking and the designated accessible entrance caused by cars that protrude onto the sidewalk;
- an inadequate ramp between the sidewalk and the designated accessible entrance;
- a rise at the base of the designated accessible entrance which is very difficult to pass over;
- an extremely heavy wooden door at the interior entrance to the Total Care office on the second floor of the building.
- The complaint by the United States alleges that by refusing to remove the architectural barriers that exist at the medical office, Defendant has unlawfully discriminated against Mr. Himes, Ms. McMullen-Powell, and other individuals with disabilities by denying benefits, privileges, or opportunities that are equal to that provided to individuals without disabilities, in violation of 42 U.S.C. ï½§ 12182(b)(1)(A)(ii) and 28 C.F.R. ï½§ 36.202(a).
- The complaint further alleges that Defendant has failed to remove architectural barriers that are structural in nature, in existing facilities where such removal is readily achievable, in order to afford equal advantages or privileges to individuals with disabilities in violation of 42 U.S.C. ï½§ 12182(b)(2)(A)(iv) and 28 C.F.R. ï½§ 36. 304(a).
- The complaint further alleges that Defendant has failed to take other measures to provide access to their services when it is not readily achievable to remove physical barriers, in violation of sections 302(a) and 302(b)(2)(A)(v) of the ADA, 42 U.S.C. ï½§ï½§ 12182(a) and 12182(b)(2)(A)(v), and in violation of 28 C.F.R. ï½§ 36.305.
- The complaint further alleges that Defendant's failure to make readily achievable changes to the Total Care office, Building B, Suite 89, Omega Professional Center in Newark, Delaware violates title III of the Americans with Disabilities Act and implementing regulations. 42 U.S.C. ï½§ 12182; 28 C.F.R. ï½§ 36.101 et seq.
- Defendant disputes the aforementioned allegations of the United States.
- In an effort to resolve their differences expeditiously and without the burden, expense and delay of litigation, the parties have agreed to enter into this consent order.
- This Court has jurisdiction over this action pursuant to 42 U.S.C. ï½§ï½§ 12188(b)(1)(B) and (b)(2) and 28 U.S.C. ï½§ï½§ 1331 and 1345.
- Venue is proper in this judicial district.
- Defendant is the association responsible for managing the common areas of a medical office in the Omega Professional Center, Building B, Suite 89, Newark, Delaware. The United States has alleged that the Defendant is a public accommodation within the meaning of title III of the ADA. 42 U.S.C. ï½§ 12181(7)(A); 28 C.F.R. ï½§ 36.104.
- In an effort to cooperate with the United States Attorneys Office's investigation, and without admitting any liability the Defendant has agreed to conduct a thorough review of Omega Professional Center V Condominium Council facilities and identify barriers to access. Defendant has agreed to remove the alleged barriers listed in paragraph A.8 and remove any barriers to access identified in its review to the extent that barrier removal is readily achievable.
- Defendant shall, as soon as possible, but not later than May 1, 1998 comply with paragraph B.4. The Defendant shall certify to the United States, in writing, that they have removed all architectural barriers to access listed in paragraph A.8 and remove any barriers to access identified in its review to the extent that barrier removal is readily achievable by June 1, 1998.
- Within 30 days of the entry of this order, the Defendant shall pay to Daniese McMullen-Powell the sum of five thousand dollars ($5,000.00). The Defendant shall make this payment by certified check or money order payable to Ms. McMullen-Powell.
- Within 30 days of the entry of this order, the Defendant shall pay to George Himes the sum of five thousand dollars ($5,000.00). The Defendant shall make this payment by certified check or money order payable to Mr. Himes.
- Within 30 days of the entry of this order, the Defendant shall pay to the United States a civil penalty in the amount of ten thousand dollars ($10,000.00). Payment shall be made by certified check or money order payable to the United States Department of Justice, and tendered to counsel for the United States.
- 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.
- The Court shall retain jurisdiction of this action to enforce the provisions of this order through August 1, 1998, after which time all of its provisions shall be terminated, unless the Court deems it is necessary to extend any of its requirements.
- The United States may review compliance with this agreement at any time. If the United States believes that the Defendant has violated this agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution of the matter with the Defendant. If the parties are unable to reach an amicable resolution of the matter, the United States may seek appropriate relief from this Court. Failure by the United States to seek enforcement of this Agreement and Order 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 Order.
- Defendant shall comply with the ADA Standards in any future involvement by Defendant in the design and construction or alteration of a public accommodation or a commercial facility.
- This agreement relates solely to the facts and events set forth in this Consent Agreement and shall govern the compliance of Defendant's obligations to barrier removal. This agreement does not address, and shall not be construed to address, any other issues of ADA compliance at Omega Professional Center V Condominium Council, or at any other commercial facility or place of public accommodation designed and constructed by Defendant or any other violations of federal law.
- This instrument reflects the entire agreement between the parties.
Accordingly, by consent of the parties, it is hereby ORDERED, ADJUDGED, and DECREED that:
For the United States of America:
GREGORY M. SLEET
United States Attorney
DAVID A. GREEN
Assistant U. S. Attorney
Delaware Bar I.D. No. 3457
Chase Manhattan Center
1201 Market Street, Suite 1100
P.O. Box 2046
Wilmington, DE 19899
For Defendant Omega Professional Center V Condominium Council
Saul, Ewing, Remick & Saul, LLP
Delaware Bar I.D. No. 2659
222 Delaware Avenue, #1200
Wilmington, Delaware 19899
SO ORDER this_______________day of _____________________, 1998.
United States District Judge