United States of America, Plaintiff, v. Ellerbe Becket, Inc., Defendant - Consent Order

CONSENT ORDER

A. Background

1. On October 10, 1995, The United States filed a complaint to enforce title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12181 through 12189, against Ellerbe Becket, Inc. ("Ellerbe"), an architectural firm headquartered in Minneapolis, Minnesota.

2. The complaint filed by the United States alleges that Ellerbe has engaged in a pattern or practice of discrimination in violation of title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 through 12189, by participating in the design and construction of several new sports stadiums and arenas which are not readily accessible to and usable by individuals with disabilities. See 28 C.F.R. § 36.406, and 28 C.F.R. Part 36, Appendix A ("the Standards for Accessible Design"). The complaint alleges that in several stadiums and arenas designed and constructed by Ellerbe for first occupancy after January 26, 1993, Ellerbe has failed to provide wheelchair seating locations that offer people with physical disabilities lines of sight that are comparable to those for members of the general public, in that most or all of the wheelchair locations do not provide a line of sight to the floor, ice, or playing field over other spectators, when those other spectators stand up. See Standards § 4.33.3.

3. Ellerbe denies that it has violated title III of the ADA. This agreement is a compromise of disputed claims and does not represent, and should not be construed to be, an admission of liability on the part of Ellerbe.

4. During the pendency of this action, Ellerbe filed a Motion to Dismiss on the grounds that architects are not liable for violations of title III of the ADA and therefore may not be subjected to enforcement actions brought by the United States. The Court denied this motion, holding that architects may have liability under title III. United States v. Ellerbe Becket, Inc., 976 F.Supp. 1262 (D. Minn. 1997). Ellerbe continues to maintain that title III of the ADA does not provide a cause of action against architects; however, for purposes of this agreement only, Ellerbe does not contest the Court's jurisdiction.

B. Agreement of the Parties

Accordingly, by consent of the parties, it is hereby ORDERED and DECREED that:

1. This Court has jurisdiction of this action under 42 U.S.C. § 12188(b)(1)(B) and 42 U.S.C. §§ 1331 and 1345. The Court may grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201 and 2202.

2. Venue is proper in this district.

3. Ellerbe has participated in the design of assembly areas, sports stadiums and arenas that have been or will be occupied after January 26, 1993.

4. Ellerbe enters into this Consent Order for the purpose of avoiding litigation, and shall not dispute the validity of this Consent Order, or the authority of the Department of Justice to institute this action.

5. The terms of this order shall apply to assembly area projects in the United States, with fixed seating that seats four or more people, for which Ellerbe provides design services after the date of this order, if the facility being designed is one at which spectators can be expected to stand for some or all of any event to be held in that facility. This includes, but is not limited to, sports stadiums and arenas. Ellerbe shall design these facilities such that all or substantially all of the wheelchair seating locations in the facility provide persons with physical disabilities lines of sight that are comparable to those for members of the general public. For purposes of this order, Ellerbe shall calculate sight lines for wheelchair seating locations as described in the Department of Justice publication entitled "Accessible Stadiums." (Exhibit A to this order). In making these calculations, Ellerbe shall employ the average anthropometric dimensions set forth in Exhibit B to this order, on designs commenced after the date of this order.

6. Ellerbe shall provide to counsel for the United States annual reports on the status of its compliance with this order. These reports shall be provided no later than February 1 in each of 1999, 2000, and 2001. For each project in the United States involving an assembly area (including sports stadiums or arenas) with fixed seating that seats four or more people, where people can be expected to stand during an event, for which Ellerbe provides design services after the date of this order, or since the date of its last annual report, whichever is more recent, the reports shall describe with particularity the project name and location, the client contact names, mailing addresses, and telephone numbers, the number of wheelchair seating locations, and the placement of wheelchair seating locations which provide lines of sight over standing spectators.

7. With respect to projects designed by Ellerbe as of the date of this Agreement, the United States shall not commence any enforcement action which otherwise might be brought against Ellerbe for alleged violations of the ADA requirement that, as to assembly areas with fixed seating that seat four or more people, where spectators can be expected to stand during an event, including sports stadiums and arenas, all or substantially all wheelchair seating locations must provide people with physical disabilities lines of sight that are comparable to those for members of the general public.

8. 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.

9. If the United States believes that Ellerbe has violated this order or any requirement contained herein, it may move this Court for an appropriate order for the enforcement of this order, including civil contempt sanctions. The Court shall retain jurisdiction of this action to enforce the provisions of this order through December 31, 2001, unless the Court determines it is necessary to extend any of its requirements, in which case those requirements shall be extended.

10. This agreement relates solely to the facts and events alleged in the United States' complaint. This agreement does not remedy, and shall not be construed to remedy, any other violations of the ADA, or any violations of other federal law. Nothing in this order shall preclude the United States from filing a separate action under the ADA for any alleged violations of the ADA not precluded herein. In such actions, the United States may seek all remedies provided in 42 U.S.C. § 12188. Nothing in this order shall relieve Ellerbe of the obligation to comply with all other provisions of the Standards for Accessible Design when engaged in the design or construction of any facility, whether or not covered by the terms of this order.

11. In the event that there are changes in the legal requirements governing the design of wheelchair seating locations in assembly areas (including sports stadiums and arenas), whether by modification of the Department of Justice's regulation implementing title III of the ADA (currently codified at 28 C.F.R. Part 36, including Appendix A, the Standards for Accessible Design), by act of Congress, or by decision of the United States Supreme Court, Ellerbe shall thereafter conform its conduct to whatever new or different design requirements are adopted, enacted, or held to be binding.

12. This Consent Order shall be binding on Ellerbe as well as any subsidiary or successor in interest.

13. This instrument reflects the entire agreement between the parties.

SO ORDERED this _____ day of ________________,1998.

______________________

United States District Judge

Agreed and Consented to:

For Plaintiff United States of America:

BILL LANN LEE
Acting Assistant Attorney General for Civil Rights

________________________________________

ALLISON J. NICHOL
THOMAS M. CONTOIS
HAROLD L. JACKSON
Attorneys
Civil Rights Division
U.S. Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738
(202) 514-6014

ROBERT SMALL
Assistant U.S. Attorney
Minnesota Bar No. 10212X
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, Minnesota 55415
(612) 664-5684

For Defendant Ellerbe Becket, Inc.:

__________________________________

Lewis J. Baker, Esquire
WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P.
7929 Westpark Drive, Suite 400
McLean, Virginia 22102
(703) 749-1000

Philip L. Bruner, Esquire
Mary Cullen Yeager, Esquire
FAEGRE & BENSON, L.L.P.
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
(612)336-3000

Vincent W. King, Esquire
310 Fourth Avenue South
Suite 500
Minneapolis, MN 55415
(612)288-9225

EXHIBIT B

The average anthropometric dimensions employed shall be: (1) average eye height for a person sitting in a wheelchair is 47.45"; (2) horizontal distance from the eye of an average person sitting in a wheelchair to the edge of the tier on which the wheelchair rests is 30"; (3) average head height of a standing spectator is 67.65"; (4) average eye height of a standing spectator is 63.45"; and (5) average shoulder height of a standing spectator is 55.65".