Ashley v. Milligan

Filing 24

CONSENT DECREE signed by Judge Billy Roy Wilson on 03/04/2013. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JIMMY ASHLEY
V.

PLAINTIFF
CASE NO. 3:10CV00259-BRW

HOWARD SLINKARD, IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF THE BOARD OF
TRUSTEES FOR ARKANSAS STATE UNIVERSITY

DEFENDANT

CONSENT DECREE
Plaintiff filed the above-entitled action pursuant to Title II of the Americans with
Disabilities Act, as amended, 42 U.S.C. Sec. 12101 et seq; the Rehabilitation Act of 1973, as
amended, 29 U.S.C. Sec. 794 et seq; and the Fair Housing Amendment Act of 1988, as amended,
42 U.S.C. Sec. 3601 et seq. The Plaintiff alleges that he is a person with disability who requires
a wheelchair for mobility and has encountered architectural barriers in connection with access to
the Convocation Center, Stadium and The Villages apartments, all on the campus of Arkansas
State University in Jonesboro. Arkansas State University had previously obtained approval of
the Office of Civil Rights of the United States Department of Education with respect to parking
at the Convocation Center, as well as parking and seating at the Stadium. Following an
inspection of the premises and discussions among counsel, the parties have agreed to resolve
their differences without the burden, expense and delay of a trial the result of which is stipulation
of settlement and this Consent Decree.
Accordingly, it is hereby agreed by the parties and ordered by the Court as follows:
1.

This Court has jurisdiction of this claim pursuant to 42 U.S.C. §12101, 29 U.S.C.

§794, 42 U.S.C. §3601, and 28 U.S.C. §§1331 and 1343, this statement being made as a general

matter and not specific to any facility upon which the Complaint does not clearly claim a basis to
subject matter jurisdiction.
2.

Venue is proper in this district.

3.

Defendant has made certain modifications to the Stadium and Convocation Center

at times after this suit was filed, some of which may or may not have been planned before suit
was filed.
4.

The Defendant agrees to make the following modifications and alterations at one

of the facilities that is the subject of this action: namely, the Convocation Center located at the
Arkansas State University Campus in Jonesboro, Arkansas (hereinafter referred to as the
“Convocation Center”):
A.

SEATING
i.

Contiguous Seating: Defendant shall implement a policy that for
each wheelchair space purchased, that individual has the option of
purchasing three (3) additional tickets for seats in the same row that
are contiguous with the wheelchair space, provided the spaces are
available at the time of purchase. In the event that the spaces are not
available, Defendant shall offer seats that are as close as possible to
the accessible seating position.

B.

GROUND LEVEL INTERIOR
i.

Central Box Office:

Defendant shall provide an accessible sign on

the wall near the Central Box Office that is high enough for people to
see that the third window from the door is the accessible ticket
window.
ii.

Women’s Ground Level Toilet Room: Defendant shall relocate the
toilet paper dispenser in the accessible toilet stall above the side grab
bar in conformance with the standards set forth in the Stipulation for
Settlement.
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iii.

Men’s Ground Level Toilet Room: Defendant shall relocate the toilet
paper dispenser in the accessible toilet stall above the side grab bar
allowing a minimum of 12 inches of clearance above the bar with the
centerline of the dispenser measuring between 7 and 9 inches in front
of the water closet and the dispensing point measuring between 15
and 48 inches above the finished floor in compliance with §604.7 and
Figure 604.7 of the Standards.

B.

MID-LEVEL AREA OF ARENA (Red, Green, Blue and Yellow Sections):
Defendant shall lower a 36-inch wide section of the service counters so that
it measures no higher than 36 inches above the finished floor in compliance
with §904.4.1 of the 2010 ADA Standards for Accessible Design, hereinafter
referred to as (“Standards”).

C.

GREEN, YELLOW AND BLUE AREAS OF CONVOCATION CENTER:
Defendant shall provide accessible toilet rooms at the respectively-colored
Men’s an Women’s Restrooms with accessible stalls, toilet facilities and
lavatory facilities, making adjustment to existing facilities, including grab
bars in conformance with the particulars set forth in the Stipulation for
Settlement.

D.

RED AREA OF CONVOCATION CENTER.

Defendant shall post

directional signage at the toilet rooms in this area directing patrons with
disabilities to the nearest accessible toilet rooms to this area.
E.

GENERAL NOTES
i.

Signs: Defendant shall ensure that all permanent signs are mounted
in compliance with Figure 703.4.1 of the Standards. If any signs are
placed between higher than 70 inches above the finished floor and
less than or equal to 120 inches above the finished floor, Defendant
shall ensure that the character dimensions are compliant with those
set out in Table 703.5 of the Standards.

5.

The Defendant agrees to make the following modifications and alterations at the

facility that is the subject of this action: namely, the Arkansas State University Stadium located at
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the Arkansas State University Campus in Jonesboro, Arkansas (hereinafter referred to as the
“Stadium”).
A.

PARKING AND ACCESSIBLE ROUTES: Defendant shall post directional
signage at the bottom of this ramp directing individuals with disabilities to
the North end of the Stadium.

B.

CONCESSIONS/TICKET COUNTERS
i.

West Side Concessions:

Defendant shall lower a 36-inch wide

section of the concessions counter to ensure that it is no higher than
36 inches above the finished floor in compliance with §§227.3 and
904.4.1 of the Standards. Alternatively, in lieu of modifying the
existing concession counter, Defendant may instead provide a nearby
accessible ancillary counter for accessible ticket sales that complies
with §904.4 of the Standards or require workers at such counters to
come to the front of the counter to assist the customer.
ii.

Gate 19 Ticket Counter:
a.

Defendant shall lower a 36-inch wide section of the
concessions counter to ensure that it is no higher than 36
inches above the finished floor in compliance with §§227.3
and 904.4.1 of the Standards.

b.

Defendant shall resurface the concrete directly beneath this
ticket counter to ensure that the cross slope and running slope
do not exceed 1:48 at any point in compliance with §403.3 of
the Standards.

c.

Alternatively, in lieu of modifying the existing ticket counter
and resurfacing the concrete as required in the foregoing
paragraph, Defendant may instead provide a nearby accessible
ancillary counter for accessible ticket sales that complies with
§904.4 of the Standards, or require workers at such counters
to come to the front of the counter to assist the customer.

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iii.

Northwest Concession Stands:

Defendant shall lower a 36-inch

wide section of each concessions counter to ensure that it is no
higher than 36 inches above the finished floor in compliance with
§§227.3 and 904.4.1 of the Standards. Alternatively, in lieu of
modifying the existing concession counter, Defendant may instead
provide a nearby accessible ancillary counter for accessible sales that
complies with §904.4 of the Standards, or require workers at such
counters to come to the front of the counter to assist the customer.
iv.

Three Concession Stands on West Side:

As the stand-alone

concession stands are not owned by Defendant such that the
modifications for accessibility are out of Defendant's control and
instead within the control of a third party, Defendant shall instead
make the provision of accessible concessions counters or reasonable
accommodations for accessibility by such a third party a condition
precedent of any renewed contractual relationship with defendant
necessary for such third-party's continued or future operation at the
Stadium. Defendant shall require the same of any other third party
owned or operated concession stands within the Stadium.
v.

Southwestern Most Ticket Booth (Between Gates 3 and 4):
Defendant shall provide directional signage in compliance with §703
of the Standards at this ticket booth directing individuals with
disabilities to the accessible booths provided at the northwestern
section of the Stadium.

C.

TOILET ROOMS
i.

Women’s Toilet Room #314 and Men’s Toilet Room #313 (South
Area of Stadium):
a.

Defendant shall ensure that the toilet room entry door handle
is mounted such that its highest operable part is no higher
than 48 inches above the finished floor in compliance with
§404.2.7 of the Standards.

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b.

Defendant shall lower the mirror at the accessible lavatory to
ensure that its lowest reflective edge is no higher than 40
inches above the finished floor in compliance with §603.3 of
the Standards.

c.

Defendant shall lower the coat hook to ensure that it is no
higher than 48 inches above the finished floor in compliance
with §604.8.3 of the Standards.

d.

Defendant shall ensure that the Men’s toilet room entry door
closer requires no more than 5 pounds of force to open.
Defendant shall also ensure that the closer has a “delayedaction” feature and shall ensure that the sweep period of the
closer is adjusted such that the leading edge of the door takes
no less than 5 seconds to move from an open position of 90
degrees to a position 12 degrees from the latch in compliance
with §§404.2.8 and 404.2.9 of the Standards.

ii.

Women’s Toilet Room on West Side of Stadium:
a.

Defendant shall lower the coat hook in the accessible stall to
ensure that it is no higher than 48 inches above the finished
floor in compliance with §604.8.3 of the Standards. In the
alternative, in lieu of lowering the existing coat hook,
Defendant may provide a second coat hook no higher than 48
inches above the finished floor.

b.

Defendant shall provide lever type hardware at the accessible
lavatory that does not require tight grasping, pinching or
twisting of the wrist to operate and requires no more than 5
pounds of force to activate in compliance with §§606.4 and
309.4 of the Standards.

iii.

Men’s Toilet Room on West Side:
a.

Defendant shall lower the coat hook in the accessible stall to

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ensure that it is no higher than 48 inches above the finished
floor in compliance with §604.8.3 of the Standards. In the
alternative, in lieu of lowering the existing coat hook,
Defendant may provide a second coat hook no higher than 48
inches above the finished floor.
A.

GENERAL NOTES
i.

Renovation. The parties recognize that Defendant may make certain
renovations to the ticket, restroom and concession areas. To the
extent that such renovations are completed, Defendant reserves the
right to remove or replace modifications stated herein in favor of
features that comply with the then applicable standards.

ii.

Accessible Routes: Defendant shall ensure that along any accessible
route within the Stadium wherever there is a change in level between
¼ and ½ inch that concrete or asphalt is applied to provide a beveled
transition or shall fill in the change in level. If a beveled transition is
provided, then Defendant shall ensure that the slope ratio does not
exceed 1:2. If the change in level along any accessible route is
greater than ½ inch, Defendant shall either fill in any drop off or shall
provide a ramp that complies with §303.2 of the Standards.

iii.

Signs: Defendant shall ensure that all permanent signs are mounted
in compliance with Figure 703.4.1 of the Standards. If any signs are
placed between higher than 70 inches above the finished floor and
less than or equal to 120 inches above the finished floor, Defendant
shall ensure that the character dimensions are compliant with those
set out in Table 703.5 of the Standards.

6.

The Defendant agrees to make the following modifications and alterations at the

facility that is the subject of this action: namely, the Arkansas State University Housing named “The
Villages” located at the Arkansas State University Campus in Jonesboro, Arkansas (hereinafter
referred to as the “Housing”).

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A.

ACCESSIBLE PARKING
i.

In the east parking area on the west side of the property, there is a
parking lot with 46 parking spaces in it. Defendant shall provide two
(2) accessible parking spaces that share an 8-foot wide access aisle
with the first space being located nearest the sidewalk that leads to the
left of this sidewalk. The accessible parking spaces shall in all
respects comply with §§4.2.2(5)(a) and 4.6 and Figure 9 of the
American National Standards Institute’s publication A117.1-1998
entitled Accessible and Useable Buildings and Facilities (hereinafter
referred to as “ANSI”). The accessible parking space nearest the
sidewalk shall be designated as the van accessible parking space.
Both spaces shall have appropriate accessible signage posted in front
of the parking space.

ii.

Defendant shall ensure that accessible parking is provide in
compliance with ANSI at each parking lot serving covered dwelling
units and all separate amenities, including the rental office and
mailboxes and in so doing shall ensure that no less than 2% of the
total parking provided complies with §§4.2.2(5)(a) and 4.6 and Figure
9 of the ANSI.

B.

ACCESSIBLE ROUTES: At the locations noted and the standards
respectively referenced more particularly in the Stipulation for Settlement,
Defendant shall modify the curb ramps listed to comply with §4.7 of the
ANSI, sidewalks listed to comply with §4.5.2 of the ANSI, and handrails to
comply with §§4.8.5 and 4.26 of the ANSI.

C.

DWELLING UNITS. Defendant shall continue its current policy of ensuring
that covered units occupied by existing tenants or offered to future tenants are
adaptable for accessibility to the extent required by the Fair Housing Act and
any of the safe harbors identified in the applicable regulations.

7.

BARRIER REMOVAL. Nothing in this agreement shall waive the University’s

ongoing obligation to remove barriers to accesses at existing venues as these venues are altered by
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the University. However, such planned alterations may be utilized and coordinated with barrier
removal efforts to maximize efficiency in the removal of barriers to access identified by the
University in accordance with the Stipulation for Settlement.
8.

NO UNDUE BURDEN. The parties hereto acknowledge that the alterations and

modifications agreed to by the parties for the purposes of this particular pending legal matter, and
as set forth in this Stipulation for Settlement, consist of what the parties believe to be required
pursuant to and for the purposes of Title II of the Standards in that the said alterations and
modifications do not require the fundamental alteration of any program or service and do not
constitute an undue financial or administrative burden.
9.

TIME FRAME. Defendant agrees to complete all alterations and modifications

within the Convocation Center, Stadium and the exterior Housing issues on or before February 1,
2015. Defendant agrees to complete alterations and modifications to interior housing issues on or
before February 1, 2018.
10.

INSPECTION. Defendant shall notify Plaintiff of the completion of the agreed

modifications. Plaintiff’s representatives shall be provided reasonable access to the subject property
to verify completion of the above-referenced work. In order to minimize expense for such
inspections, Defendant agrees to provide digital photos evidencing completion of modifications
required herein which Plaintiff shall review in the hope of obviating or minimizing the need for or
scope of such future inspection(s).
11.

NON-COMPLIANCE. In the event the alterations and modifications required hereby

are not timely completed in all respects, the Plaintiff shall be entitled to seek an award for injunctive
relief from the Court. The parties agree that if the Defendant have timely commenced the
modifications required hereby, and have proceeded with the completion thereof in good faith and
with due diligence, but have been delayed in the completion thereof due to acts of God, force
majeure, or events beyond the control of Defendant (such as inability to obtain building or zoning
permits, failure of the county inspectors to make inspections, contractor defaults, work stoppages,
delays in receipt of state funding, etc.), and should the Defendant notify the Plaintiff of such with
appropriate backup documentation prior to the expiration of the time periods agreed to herein, the
time periods for completion established hereby shall be extended appropriately. Defendant shall be
afforded sixty (60) days’ notice of the alleged non-compliance, and a reasonable amount of time, in
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light of the scope of the alleged non-compliance, to cure the alleged non-compliance before Plaintiff
shall be entitled to seek injunctive relief.
12.

ENFORCEMENT. If any action or proceeding is commenced with regard to the

subject matter of this Stipulation for Settlement, then the prevailing party in such action or
proceeding shall be entitled to seek its reasonable attorney’s fees and costs incurred in said action
or proceeding promptly reimbursed by the non-prevailing party. However, Plaintiff shall take no
action to enforce this agreement without first providing notice to Defendant and a reasonable
opportunity to cure.
13.

ATTORNEYS’ FEES AND COSTS. Plaintiff's counsel, Edward I. Zwilling, of

Schwartz Roller & Zwilling, shall be entitled to petition the court for reimbursement of reasonable
attorney's fees, litigation expenses and expert expenses incurred in the prosecution of this matter.
The fee petition shall be filed no later than March 15, 2013. Defendant shall have an opportunity
to respond within fourteen (14) days of service. Upon issuance of a ruling from the Court on this
issue, Defendant shall cooperate in good faith in submitting the amount awarded through proper
channels for prompt payment.
14.

NOTICE. Each notice (“Notice”) provided for under this Stipulation for Settlement must

comply with the requirements of this Section. Each Notice shall be in writing and sent by depositing
it with a nationally recognized overnight courier service which obtains receipts (such as Federal Express
or UPS Next Day Air), addressed to the appropriate party (and marked to a particular individual’s
attention, if so indicated) as hereinafter provided. Each Notice shall be effective upon being so
deposited, but the time period in which a response to any notice must be given or any action taken with
respect thereto shall commence to run from the date of receipt of the Notice by the addressee thereof,
as evidenced by the return receipt. Rejection or other refusal by the addressee to accept or the inability
to deliver because of a changed address of which no Notice was given shall be deemed to be the receipt
of the Notice sent. Any party shall have the right from time to time to change the address or
individual’s attention to which notices to it shall be sent by giving to the other party at least ten (10)
days prior notice thereof. The parties’ addresses for providing Notices hereunder shall be as follows:

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Plaintiff:
Edward I. Zwilling, Esq.
Schwartz Roller & Zwilling, LLP
600 Vestavia Parkway
Suite 251
Birmingham, Alabama, 35216
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Defendant:
Mark Mayfield, Esq.
Womack, Phelps & McNeill, P.A.
PO Box 3077
Jonesboro, Arkansas 72403
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
And
Katherine Prescott
Associate University Counsel
Arkansas State University System
P.O. Box 10
State University, Arkansas 72467
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

JUDGMENT is hereby ORDERED in accordance with the forgoing Consent Decree on this4th
day of March, 2013.

/s/BILLY ROY WILSON
UNITED STATES DISTRICT JUDGE

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