Opinion
Case No. C 02 5497 CRB.
March 11, 2003
RICHARD A. SIPOS, TAMMY A. BROWN, AIKEN, KRAMER CUMMINGS, INCORPORATED Oakland, California; Attorneys for Defendant TOWER MART CORPORATION dba TOWER MART STORE 166.
Eric P. Jones, Attorney for Plaintiff.
CONSENT DECREE
I. INTRODUCTION
Plaintiffs AMERICANS WITH DISABILITES ADVOCATES, a Nevada Non-profit Corporation ("AWDA"), JOSEPH TACL ("Tacl") and GEORGE LOUIE ("Louie") commenced four (4) lawsuits in the United States District Court for the Northern District of California: this Case No. C 02 5497 CRB, Americans with Disabilites Advocates, et al. v. Tower Energy Group, et al., Case No. C 03-0657 CRB, Americans with Disabilites Advocates, et al. v. Tower Energy Group et al., Case No. C 03-0668 VRW and Americans with Disabilites Advocates, et al. v. Tower Energy Group, et al., C03-0656 VRW.
The complaints were largely the same. The Plaintiffs alleged that TOWER ENERGY GROUP ("TOWER"), a California corporation operating self-service gasoline stations and grocery stores, failed to conform its facilities to accessibility requirements of both California and federal law, including but not limited to the Americans with Disabilities Act (the "ADA") and the California Code of Regulations at Title 24 ("Title 24"). The complaints sought injunctive relief, damages and attorney's fees.
TOWER denies liability on all claims in all actions asserted by Plaintiffs. The parties have engaged in extensive settlement negotiations and agreed to settle all four (4) lawsuits. As part of the settlement, Plaintiffs agreed to dismiss Northern District Case No. C03-0657CRB, Northern District Case No. C 03-0668 VRW, Northern District Case No. C03-0656 VRW, and Northern District Case No. C02-05497 and to cooperate in the drafting, execution and entry of this Consent Decree.
The Plaintiffs and TOWER seek to fully and finally conclude all claims arising out of the above actions without the expenditure of further resources and expenses of contested litigation. Further, they desire that the Court retain jurisdiction over the parties and each of TOWER's 40 retail facilities in California, a complete list of which is attached hereto as Exhibit "A," and any retail facilities acquired after this Consent Decree (the "Stores"), so that TOWER may evaluate its public accommodations in California and make any modifications and corrections required in order for it to comply with the accessibility requirements of both the ADA and Title 24. Accordingly, the parties enter into this Consent Decree to further the objectives of compliance with the legal requirements for providing access for disabled individuals to each of TOWER's public accommodations at its Stores. Presently, TOWER has had an independent, licensed architect and his design team, which specializes in ADA and Title 24 compliance issues, review and report on each of TOWER's Stores. A report ("the Report") has been prepared for each Store, listing each of the corrections or modifications necessary to make the Store compliant with the ADA and Title 24. TOWER desires to make each of its Stores fully compliant, but all parties acknowledge TOWER requires a reasonable period of time to make the necessary corrections or modifications.
Other lawsuits involving TOWER facilities in California may be filed and the defense costs and potentially conflicting compliance orders relating to these lawsuits compromise TOWER's ability to complete the necessary modifications and corrections to make the Stores compliant with the ADA and Title 24. Future ADA lawsuits will increase unnecessarily the burden on the federal judiciary by creating a multiplicity of lawsuits seeking identical remedial work which Tower has already commenced, and which is specifically addressed herein. Further, multiple actions involving Tower Stores' compliance with ADA and Title 24 poses a serious risk of conflicting decisions. It is therefore in the best interests of judicial economy and comity among the various federal and state courts that one court exercise exclusive jurisdiction over Tower, the Stores and the actions as herein below defined.
I. NON-ADMISSION OF LIABILITY
This Consent Decree does not, and shall not be deemed to, constitute an admission by TOWER of any violation or a finding of any fact, or an adjudication of any issue, in the Plaintiffs' lawsuits or any other lawsuit.
II. ORDER
The Court has reviewed the terms of this Consent Decree in light of the pleadings, the record herein, and the applicable law, and now approves the Consent Decree in its entirety.
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
III. GENERAL PROVISIONS
A. Jurisdiction: This Court, the Honorable Charles R. Breyer, has exclusive jurisdiction over each and every Store, the subject matter, the Parties to these actions and the actions as defined herein below in Section III(C)(4).
B. Scope: This Consent Decree shall bind Plaintiffs, TOWER and its Stores.
C. Definitions:
1. For purposes of this Consent Decree, "existing facility" means and refers to all stores which are public accommodations and to any portion of a store that is a public accommodation owned and operated by TOWER or its affiliates as of March 1, 2003, for so long as. with respect to each store, that TOWER continues to own, operate and maintain open to the public.
2. For purposes of this Consent Decree, "newly acquired facility" means and refers to all stores which are public accommodations and to any portion of a store that is a public accommodation acquired by TOWER or its affiliates after March 1, 2003, for so long as, with respect to stores that TOWER continues to own, operate and maintain open to the public.
3. For purposes of this Consent Decree, "newly built facility" means and refers to all stores which are public accommodations and to any portion of a store that is a public accommodation constructed by TOWER after March 1, 2003 that TOWER, for so long as, with respect to each store, continues to own, operate and maintain open to the public.
4. For purposes of this Consent Decree, "actions" means and refers to the four (4) lawsuits identified in the Introduction section above, and all other actions filed during the period of this Consent Decree alleging TOWER's non-compliance with ADA, Title 24, and other laws regarding disability access at any public accommodation operated by TOWER in California.
5. For purposes of this Consent Decree, "readily achievable" has the meaning given to it in Title III of the ADA and its implementing regulations.
6. For purposes of this Consent Decree, "public accommodation" has the meaning given to it in Title III of the ADA and its implementing regulations.
IV. INJUNCTIVE RELIEF
A. Accessible Parking:No-later than December 31, 2004, TOWER will ensure that:
1. Where readily achievable, each existing facility and each newly acquired facility with parking will have the number of disabled parking spaces and van accessible disabled parking spaces required by applicable provisions of the ADA and Title 24.
2. TOWER will ensure that each newly built facility with parking will have the number of disabled parking spaces and van accessible disabled parking spaces required by the applicable provisions of the ADA and Title 24.
B. Sales Counters:
No later than December 31, 2004, TOWER will ensure that:
1. Where readily achievable, each existing facility and each newly acquired facility will have a sales counter that complies with the applicable provisions of the ADA and Title 24; where such sales counter is not readily achievable, TOWER will ensure that the facility provides an auxiliary counter, or other reasonable accommodation which is readily achievable.
2. Each newly built facility will have a sales counter or auxiliary counter that complies with the applicable provisions of the ADA and Title 24.
C. Paths of Travel:
No later than December 31, 2004, TOWER will ensure that:
1. Where readily achievable, each existing facility and each newly acquired facility, where readily achievable, will have an accessible path of travel to the interior of the facility and to an accessible sales counter (or its substitute as provided in paragraph IV (B.1.) of this section) within the facility that complies with the applicable provisions of the ADA and Title 24; where such a path of travel is not readily achievable, TOWER will remove, where the removal is readily achievable, those barriers to the path of travel.
2. Each newly built facility will have an accessible path of travel to and in the interior of the facility that complies with the applicable provisions of the ADA and Title 24.
D. Signage:
No later than December 31, 2004, TOWER will ensure that:
1. Each existing facility and each newly acquired facility will display signage for entrances, parking spaces and facilities that complies with the applicable provisions of the ADA and Title 24.
2. TOWER will ensure that each newly built facility will display signage for entrances, parking spaces and facilities that complies with the applicable provisions of the ADA and Title 24.
E. Bathrooms:
No later than June 30, 2005, TOWER will ensure that:
1. Each existing facility and newly acquired facility's bathrooms, which are open to the public and not just for employee use, comply with ADA and Title 24.
2. The bathrooms at each newly built facility, which are open to the public and not just for employee use, will comply with ADA and Title 24.
F. Other Corrections or Modifications. No later than March 1, 2008, to the extent that the Report has listed other modifications and corrections necessary to make TOWER'S existing facilities compliant with ADA and Title 24 and said corrections or modifications are readily achievable, these corrections or modifications will be completed.
G. Monitoring:
1. Commencing January 1, 2005, and continuing until March 1, 2008, an agent of AWDA (the "Monitor") may arrange to enter any public accommodation of TOWER, during normal business hours as the Parties may agree, for the purpose of monitoring TOWER's compliance with the foregoing obligations. In the event any customers of TOWER are present, the Monitor shall not interfere with any customer's use of the premises, interact with the customer or intrude upon their privacy. The Monitor shall arrange each visit by contacting the attorneys of TOWER, or such other person as the attorneys may designate from time to time (as of this date, the attorney is Aiken, Kramer Cummings, Inc., 1111 Broadway, Suite 1500, Oakland, California, 94607, whose telephone number is (510) 834-6800) (hereinafter, "the attorney(s)") and provide no less than two (2) business days' notice of the visit. The Monitor may take measurements and photographs, but shall not take in excess of one (1) hour to perform the monitoring. All costs arising out of the monitoring shall be the sole responsibility of the Monitor. This shall be the exclusive means of monitoring the compliance of TOWER with this Consent Order.
2. In the event Plaintiffs believe there is any deviation from the standards as set forth in this Consent Decree, the Plaintiffs shall provide written notice to TOWER specifically detailing such believed deviations. This notice shall be sent by certified mail, return receipt requested, and addressed to Tower Energy Group, 1983 West 190th Street, Torrance, California, 90504 (or such other address as TOWER may provide) with a copy to the attorneys. Within thirty (30) days of receipt of such notice, TOWER shall respond in writing, identifying the specific action, if any, TOWER intends to take.
3. In the event that the Plaintiffs and TOWER cannot agree on a final disposition within ninety (90) days of Plaintiffs' notice described in section IV G.2, then the Court shall exercise jurisdiction for the sole purpose of resolving the conflict. Initially, the Court shall refer the dispute to a Magistrate Judge for the purposes of conducting a settlement conference. If the settlement conference does not resolve the matter, the Court or a Magistrate Judge shall conduct an evidentiary hearing to determine if violation of this Consent Decree occurred.
4. The prevailing party at the evidentiary hearing described in section IV G.3 shall be awarded reasonable attorney's fees and costs expended to resolve the conflict and should Plaintiffs prevail, reasonable actual costs of the monitoring which are directly associated with the violation. In the event an agreement is reached between the Plaintiffs and TOWER within ninety (90) days of Plaintiff's notice described in Section IV, G.2 above, or as a result of the settlement conference described in Section IV, G.3 above, neither party shall be entitled to an award of attorneys' fees or costs.
H. Compliance with Applicable Law: Nothing in this Consent Decree is intended to require TOWER to undertake obligations not required by Title III of the ADA, its implementing regulations and applicable Title 24. For purposes of this Consent Decree, to the extent there are any amendments to, or subsequent judicial decisions modifying the interpretation of, such statutory provisions, TOWER is only obligated to comply with standards in effect as of March 1, 2003.
V. RETENTION OF JURISDICTION
The Court shall retain exclusive jurisdiction over the four (4) actions described in Section I above for the purpose of enforcing the provisions of this Consent Decree up to and including March 1, 2008. The Court will also, to the fullest extent possible, maintain exclusive jurisdiction over all actions filed against TOWER after March 1, 2003, regarding disability access under ADA or Title 24 at any of TOWER's Stores. For any other currently pending actions against Tower for ADA and/or Title 24 violations which may be consolidated with any of the four (4) actions, this Court will extend its jurisdiction over such consolidated actions. Unless the Court so orders, this Consent Decree will dissolve automatically and without the need for any affirmative act at the close of this Court's business day on March 1, 2008.IT IS SO ORDERED.