Opinion
1:21-cv-05853-AT
07-12-2021
UNITED STATES OF AMERICA, Plaintiff, v. JUJAMCYN THEATERS LLC, Defendant.
AUDREY STRAUSS United States Attorney Southern District of New York DAVID J. KENNEDY Assistant United States Attorney
AUDREY STRAUSS
United States Attorney
Southern District of New York
DAVID J. KENNEDY
Assistant United States Attorney
CONSENT DECREE
ANALISA TORRES United States District Judge
WHEREAS, the United States of America (the “Government”) commenced this action to enforce provisions of Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., and the Department of Justice regulations implementing Title III of the ADA, 28 C.F.R. Pt. 36 (the “Regulations”), and the ADA Standards for Accessible Design, consisting of 28 C.F.R. Pt. 36, App. D (the “1991 Standards”); and Appendices B and D to 36 C.F.R. Pt. 1191 (2009), and the requirements contained in subpart D of 28 C.F.R. Pt. 36 (the “2010 Standards”), against Jujamcyn Theaters LLC (“Jujamcyn”) with respect to the following theaters:
(a) the Al Hirschfeld Theatre, opened in 1924 and located at 302 West 45th Street;
(b) the August Wilson Theatre, opened in 1925 and located at 245 West 52nd Street;
(c) the Eugene O'Neill Theatre, opened in 1925 and located at 230 West 49th Street;
(d) the St. James Theatre, opened in 1927 and located at 246 West 44th Street;
(e) the Walter Kerr Theatre, opened in 1921, renovated and reopened in 1990 and located at 219 West 48th Street;all in New York, New York (collectively, the “Theaters, ” and each individual theater being the “Theater”);
WHEREAS, the Theaters are owned by Jujamcyn, which is a limited liability company organized under the laws of Delaware and headquartered in New York;
WHEREAS, the Complaint in this action, filed on July $, 2021 (the “Complaint”), alleges that Jujamcyn violated Title III of the ADA (a) by failing to remove architectural barriers to access at the Theaters where such barrier removal is readily achievable, or, where such barrier removal is not readily achievable, by failing to make goods and services at the Theaters available through readily achievable alternatives to barrier removal, see 42 U.S.C. § 12182(b)(2)(A)(iv)-(v), 28 C.F.R. § 36.304(a); and (b) by failing to have a reasonable number of wheelchair seating locations, companion seating locations, and designated aisle transfer seats that are dispersed throughout the seating areas, that are readily accessible to and usable by individuals with disabilities, see 28 C.F.R. § 36.308;
WHEREAS, the Complaint alleges that the Theaters are places of public accommodation within the meaning of 42 U.S.C. § 12181(7) because their operations affect commerce, and the Theaters are facilities that include a theater, bars that serve food or drink, and merchandise concession facilities, see 42 U.S.C. § 12181 (7)(B), (C), (E), 42 U.S.C. § 12182; 28 C.F.R. § 36.104;
WHEREAS, Jujamcyn has cooperated fully with the Government's investigation and shall continue to work cooperatively with the Government to ensure accessibility at the Theaters as provided herein, and Jujamcyn has already voluntarily provided certain of the relief set forth in this Consent Decree in the course of the Government's investigation, including by removing certain architectural barriers to access, making certain services available to patrons with disabilities, establishing policies and procedures providing individuals with disabilities equal access to tickets, installing power automatic doors, retrofitting box offices, installing appropriate signage, creating wheelchair seating locations, companion seating locations and aisle transfer seats, constructing accessible retail and bar counters, providing accessible paths of travel, and providing modified restrooms, all in accordance with the agreed upon Exhibits 1A through 5A, IB through 5B;
WHEREAS, Jujamcyn denies liability for any violation of Title III of the ADA with respect to the Theaters and enters into this Consent Decree without admitting any issue of fact or law; and
WHEREAS, the Government and Jujamcyn agree that settlement of these matters without further litigation is in the public interest and that the entry of this Consent Decree is an appropriate means of resolving these matters;
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B) and 42 U.S.C. §§ 1331 and 1345.
2. This Consent Decree applies to, and is binding upon, the Government and Jujamcyn. This Consent Decree shall be binding on Jujamcyn, its agents and employees, and successors or assigns. The undersigned representative of Jujamcyn certifies that he is authorized by Jujamcyn to enter into and consent to the terms and conditions of the Consent Decree and to execute and legally bind Jujamcyn to it.
3. The Theaters are places of public accommodation within the meaning of 42 U.S.C. § 12181(7) because each one is a “theater, ... or other place of exhibition or entertainment” within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104. Jujamcyn operates a place ofpublic accommodation as defined in 42 U.S.C. § 12181 and 28 C.F.R. § 36.104, and is thus also a public accommodation.
4. This Consent Decree shall apply solely to the theater facilities at the Theaters. Notwithstanding any term of this Consent Decree, specifically reserved and excluded from the scope and terms of this Consent Decree as to any entity or person, including the Government, is any claim arising under the ADA and the Regulations pertaining to the below or above-stage dressing and wardrobe room areas, including but not limited to the toilet facilities in these areas, and the routes to and connecting these areas, at each of the Theaters.
III. INJUNCTIVE RELIEF
A. ARCHITECTURAL MODIFICATIONS AND ACCOMMODATIONS
5. Entrances: Jujamcyn shall provide automatic accessible entry doors on an accessible entrance route at the main entrance that meets the requirements of 2010 Standards §§ 206, 403, 404 in each Theater as and to the extent set forth in Exhibits 1A through 5 A. Jujamcyn shall maintain the foregoing doors in good working order, ensure that they are in operation every day a performance is scheduled, and repair any doors that are not in good working order within three (3) days. Jujamcyn shall provide signage in each Theater indicating the location of the automatic doors that meets the requirements of 2010 Standards § 216, 703 as and to the extent set forth in Exhibits 1A through 5A. Jujamcyn shall maintain the thresholds at the automatic doors to meet the requirements of 2010 Standards §§ 206, 303, 404 as and to the extent set forth Exhibits 1A through 5A. Jujamcyn shall maintain the door closers to meet the requirements of 2010 Standards § 404 as and to the extent set forth in Exhibits 1A through 5 A. Jujamcyn shall provide signage that meets the requirements of 2010 Standards §§ 216, 703 at the exterior of all inaccessible designated public entrances indicating the location of accessible entrances as and to the extent set forth in Exhibits 1A through 5A. In addition, Jujamcyn shall maintain and/or alter the entrances to each specific Theater as and to the extent set forth in Exhibits 1A through 5 A.
6. Restrooms: Jujamcyn shall (1) maintain and/or alter the unisex accessible restrooms and other restrooms in each specific Theater as and to the extent set forth in Exhibits 1A through 5A; (2) provide restroom accessibility information on its internet site for its theater patrons; and (3) maintain a wheelchair accessible unisex toilet room that meets the requirements of 2010 Standards §§ 213, 603-606, in each Theater as and to the extent set forth in Exhibits 1A through 5A. As to the Eugene O'Neill Theatre, Jujamcyn shall ensure that the accessible restroom in the Time Hotel is available to all patrons with disabilities one-half hour before each performance and throughout each performance. If the Time Hotel accessible restroom is no longer available to patrons of the Eugene O'Neill Theatre as specified above, Jujamcyn shall designate an alternative accessible restroom. Furthermore, Jujamcyn shall maintain the existing signage that directs patrons to speak with a Jujamcyn representative if they need an accessible restroom.
7. Food and Beverage Service: For any food and beverage concessions that are available to the general public in each of the Theaters, Jujamcyn shall either (a) provide waiter service for wheelchair users at their designated accessible seating locations during intermissions (before the performance, a Jujamcyn representative shall ask wheelchair users at their designated accessible seating locations if any food or beverage is desired during intermission); or (b) provide concession facilities that meet the requirements of 2010 Standards §§ 227, 904 as and to the extent set forth in Exhibits 1A through 5A. In the event that Jujamcyn provides waiter service as described in the foregoing sentence, Jujamcyn shall issue, together with the ticket to wheelchair seating, a written notice informing wheelchair users of the availability of waiter service during intermissions. In addition, in the event that Jujamcyn provides waiter service, Jujamcyn shall (a) provide notice on its Internet site informing wheelchair users of the availability of waiter service during intermissions; and (b) provide signage in the box office lobby that complies with 2010 Standards §§216, 703 informing wheelchair users of the availability of waiter service during intermissions.
8. Ticket Windows: Jujamcyn shall provide one pass-through or writing counter at a maximum height of 36 inches at one of the ticket windows in each Theater, pursuant to 2010 Standards §§ 227, 904 as and to the extent set forth in Exhibits 1A through 5A.
9. Egress Route: Jujamcyn shall provide in each Theater a designated access route to the extent set forth in Exhibits 1A through 5A.
10. Protruding Objects: Jujamcyn shall remove protruding objects or maintain cane-detectable barriers for protruding objects as and to the extent set forth in Exhibits 1A through 5A.
11. Assistive Listening Systems: Jujamcyn shall provide and maintain Assistive Listening Systems (“ALS”) and receivers at each Theater for persons who are hard of hearing, pursuant to 28 C.F.R. § 36.303 and 2010 Standards §§ 219, 706 as and to the extent set forth in Exhibits 1A through 5A.
12. Signage: Jujamcyn shall provide and maintain Theater signage as and to the extent set forth in Exhibits 1A through 5A.
13. Alarm Systems: To the extent Jujamcyn installs or modifies its alarm systems, it shall install a visual alarm system in non-seating areas, pursuant to 2010 Standards §§ 215, 702.
B. WHEELCHAIR AND COMPANION SEATING LOCATIONS
14. Jujamcyn shall provide or install and maintain wheelchair and companion seating locations at the Theaters as and to the extent set forth in Exhibits IB through 5B, in which all companion seating has been or will be located adjacent to, and shoulder to shoulder if on the same row with, the wheelchair seating locations to the extent readily achievable. Wheelchair seating locations that Jujamcyn is required to provide or install shall not be set on removable platforms, although Jujamcyn may install and maintain permanent platforms to ensure level wheelchair seating locations. If Jujamcyn installs and maintains such a platform, Jujamcyn shall ensure that the front edge of such platform is raised to prevent a wheelchair from rolling forward.
15. All wheelchair and companion seating locations that Jujamcyn is required to provide or install, as and to the extent set forth in Exhibits 1A through 5 A, and Exhibits IB through 5B, shall adjoin an accessible route and comply with 2010 Standards § 802 to the extent set forth in Exhibits 1A through 5 A, and Exhibits IB through 5B. It will be sufficient for Jujamcyn to provide a designated access route for each seating location that Jujamcyn is required to provide or install pursuant to Exhibits 1A through 5 A, and Exhibits IB through 5B, Furthermore, if any wheelchair or companion seating location that Jujamcyn is required to provide or install, as and to the extent set forth in Exhibits 1A through 5A, and Exhibits IB through 5B, will have a partially obstructed view or involve seating that protrudes into the aisle, Jujamcyn shall provide notice thereof to the purchaser at the point of sale.
16. Jujamcyn shall provide and maintain seats that are equipped with folding armrests (“designated aisle seats”) as and to the extent set forth in Exhibits 1A through 5A, and Exhibits IB through 5B.
C. ALTERATIONS
17. Nothing in this Consent Decree shall prevent Jujamcyn from making alterations, as defined in 42 U.S.C. § 12183 and 28 C.F.R. § 36.402(b), or modifications to any Theater, in addition to those modifications required by the Consent Decree. Any alterations not contemplated by this Consent Decree shall be made in accordance with the 2010 Standards, and any amendments thereto, and shall be accessible to the “maximum extent feasible, ” as defined by 28 C.F.R. § 36.402(a).
D. TICKET POLICIES AND PRICING
18. Methods of Purchase: Jujamcyn shall provide for the availability of tickets for wheelchair and companion seating locations and aisle transfer seating for all performances at the Theaters pursuant to 28 C.F.R. § 36.302(f). The parties, however, acknowledge and agree that (a) Jujamcyn shall direct ticket distribution platforms used for the sale of tickets at the Theaters that are not part of Ticketmaster (and its successors) or another distribution platform that is able to meet the relevant requirements of the preceding sentence to provide individuals who specifically request wheelchair and/or companion seating on the basis of a disability with the contact information for Ticketmaster (and its successors) or another distribution platform that is able to fulfill this request or direct such individuals to purchase tickets at the applicable box office, and (b) Jujamcyn may, at its discretion, hold up to two (2) wheelchair locations per performance off sale to the public through and including the day of such performance in order to accommodate (i) individuals who win the right to purchase lottery seats on the date of or on a date close to such performance and who need wheelchair seating locations and/or (ii) individuals who communicate close to the time of the performance that they specifically need wheelchair seating locations. Jujamcyn shall permit wheelchair users to purchase up to three (3) companion seats for each performance (subject to availability). However, the price of only one (1) of the companion seats will be governed by the pricing provisions of Paragraph 20 of this Consent Decree. The additional companion seats, which shall be in proximity to the purchased wheelchair seating location (subject to availability), may be priced at the price of the tickets for standard-admission, non-accessible seats (“Standard-Admission Seats”) in proximity to the wheelchair seating location.
19. Release of Seating Locations: Jujamcyn shall release tickets for wheelchair and companion seating locations and aisle transfer seating for all performances at the Theaters pursuant to 28 C.F.R. § 36.302(f).
20. Ticket Pricing: The ticket pricing for wheelchair and companion seating locations in each Theater shall be as follows: (a) at least half of the wheelchair seating locations and one (1) companion seat for each such wheelchair seating location shall be offered for sale to wheelchair users and their companions at the lowest ticket price at which tickets are offered for 9 sale for Standard-Admission Seats for the general public at the Theater; (b) the remaining wheelchair seating locations and one (1) companion seat for each such wheelchair seating location shall be offered for sale to wheelchair users and their companions at the price of the tickets for Standard-Admission Seats in proximity to the wheelchair seating locations; and (c) all aisle transfer seating locations shall be offered for sale to people with disabilities at the price at which adjacent seating locations in the same row are offered for sale for that performance.
E. ADA COORDINATION AND PUBLICITY
21. Jujamcyn shall publicize the availability, pricing, and locations of wheelchair seating, companion seating, and designated aisle seating in any Theater guides, seating charts and other materials related to seating published by Jujamcyn and on Jujamcyn's Internet site, and Jujamcyn shall direct Ticketmaster or its successors or assigns to comply with the requirements of Paragraphs 18 through 20 of this Consent Decree.
F. COMPLIANCE
22. Jujamcyn shall implement this Consent Decree as follows:
a. On or before September 30, 2021, Jujamcyn shall comply with Paragraph 8, Paragraph 12 and Paragraph 16 of this Consent Decree with respect to each of the Theaters, and shall no later than October 31, 2021 submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraph 8, Paragraph 12 and Paragraph 16 of this Consent Decree with respect to each of the Theaters.
b. On or before September 30, 2021, Jujamcyn shall comply with Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the St. James Theatre, and shall no later than October 31, 2021 submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the St. James Theatre.
c. On or before December 31, 2021, Jujamcyn shall comply with Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Al Hirschfeld Theatre, the August Wilson Theatre, and the Walter Kerr Theatre, and shall no later than January 31, 2022 submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Al Hirschfeld Theatre, the August Wilson Theatre, and the Walter Kerr Theatre.
d. On or before May 1, 2024, Jujamcyn shall comply with Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Eugene O'Neill Theatre, and shall no later than June 1, 2024 submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Eugene O'Neill Theatre; provided, however, that if the show running as of the Effective Date at the Eugene O'Neill Theatre is still running as of May 1, 2024, then Jujamcyn shall comply with Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Eugene O'Neill Theatre within ninety (90) days of such show completing its run, and shall no later than one hundred twenty (120) days of such show completing its run submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraph 14 and Paragraph 15 of this Consent Decree with respect to the Eugene O'Neill Theatre.
e. On or before February 1, 2022, Jujamcyn shall comply with Paragraphs 5, 6, 7, 9, 10, 11, and 13 of this Consent Decree with respect to each of the Theaters, and shall no later than March 1, 2022 submit to the Government a statement under penalty of perjury that it has complied with its obligations under Paragraphs 5, 6, 7, 9, 10, 11 and 13 of this Consent Decree with respect to each of the Theaters.
f. Jujamcyn shall comply with Paragraphs 18, 19, 20 and 21 of this Consent Decree with respect to existing wheelchair seating locations, existing companion seating locations and existing aisle transfer locations at each of the Theaters upon the Effective Date of this Consent Decree. In addition, Jujamcyn shall comply with Paragraphs 18, 19, 20 and 21 with respect to the additional seating locations contemplated in the Exhibits as and when that seating is made available to the public (or, for new seating, from and after the next buildout of the block of tickets that includes that seating).
g. Jujamcyn shall comply with all remaining Paragraphs upon the Effective Date of this Consent Decree.
h. In the event that Jujamcyn is prohibited from implementing this Consent Decree at a particular Theater due to contractual obligations with a show running as of the Effective Date, Jujamcyn shall implement this Consent Decree at that Theater within ninety (90) days of such show completing its run. In addition, each of the timeframes and deadlines specified in this Paragraph 22 is subject to extension as reasonably necessary if Jujamcyn is delayed or otherwise prevented from completing the applicable modifications therein or thereby due to force majeure or other circumstances outside of Jujamcyn's control.
IV. RIGHT TO REVIEW COMPLIANCE
23. Upon reasonable advance notice to Jujamcyn, Jujamcyn shall permit the Government and any person acting on its behalf reasonable access to the Theaters to review compliance with this Consent Decree. If the Government finds that Jujamcyn has violated this Consent Decree, the United States will notify Jujamcyn in writing and seek to resolve the matter without judicial intervention before applying to the Court for relief. Jujamcyn shall provide to the Government on July 31, 2022, January 31, 2023, and July 31, 2023 a report on the number of wheelchair, aisle transfer, and companion seating locations sold (through Ticketmaster or its successor or assigns), specifying the dates such locations were sold, and the extent to which accessible seats were released to the general public pursuant to this Consent Decree.
V. CIVIL PENALTY
24. Pursuant to 42 U.S.C. § 12188(b)(2)(C)(i), Jujamcyn shall within thirty (30) days of entry of this Consent Decree pay to the Government a civil penalty in the amount of $40,000, pursuant to instructions to be provided by undersigned counsel for the Government.
VI. MISCELLANEOUS PROVISIONS
25. Nothing contained in this Consent Decree is intended or shall be construed as a waiver by the Government of any right to institute any proceeding or action against Jujamcyn for violations of any statutes, rules or regulations administered by the Government, or to prevent or limit the rights of the Government to obtain relief under the ADA, or any other federal statutes or regulations, or on account of any violation of this Consent Decree or any other provision of law. However, subject to Jujamcyn's full compliance with the Consent Decree, the Government will not file a subsequent complaint against Jujamcyn pursuant to Title III of the ADA concerning the Theaters covered by this Consent Decree for the same violations identified in the Complaint herein, unless Jujamcyn fails to make modifications in compliance with this Consent Decree. In the event that Jujamcyn makes alterations that affect the location of wheelchair seating locations, Jujamcyn shall provide advance notice to the Government and Jujamcyn shall make any alterations consistent with Title III of the ADA.
26. This Consent Decree is a compromise of claims between the Government and Jujamcyn. It is based on the unique nature of these particular facilities and its provisions are not necessarily applicable to any other entities or facilities.
27. There shall be no modification of this Consent Decree without the written consent of the Government and Jujamcyn, and the approval of the Court, except that the parties may modify the specific accessibility improvements set forth in Exhibits 1A through 5A, and IB through 5B, by mutual written consent without requiring a Court order.
28. This Consent Decree represents the entire agreement between the Government and Jujamcyn. No prior agreements, oral representations, or statements shall be considered part of this Consent Decree.
29. This Court shall retain jurisdiction of this action until June 1, 2024, subject to paragraph 22, to enforce or modify the provisions of this Consent Decree, to resolve any dispute that arises under this Consent Decree, and to entertain any application and issue any orders (including, without limitation, orders directing the modification of policies, practices, and procedures, and orders requiring the removal of barriers to access) as may be necessary or appropriate for the effectuation of its terms. The parties shall discuss and attempt to negotiate a resolution of any dispute relating to the interpretation of this Consent Decree before bringing the matter to the Court's attention for resolution.
30. This Consent Decree may be executed in counterparts, each of which shall be an original and all of which, together, shall constitute one and the same instrument.
31. Exhibits 1A through 5 A and IB through 5B to this Consent Decree are incorporated by reference into this Consent Decree and the terms set forth in those exhibits are part of this Consent Decree as though fully set forth in the Consent Decree.
32. The Effective Date of this Consent Decree is the date that it is entered on the docket.
VIL COSTS AND ATTORNEY'S FEES
33. Each party shall bear its own costs and attorney's fees in this action.
THE PARTIES HEREBY CONSENT to entry of the foregoing Consent Decree
SO ORDERED.
(Exhibit Omitted)