D'Lil v. Riverboat Delta King, Inc. et al

Filing 161

CONSENT DECREE ORDER and JUDGMENT against City of Sacramento signed by Senior Judge William B. Shubb on 2/3/2015. CASE CLOSED. (Zignago, K.)

THIMESCH LAW OFFICES
TIMOTHY S. THIMESCH, ESQ., No. 148213
[e-mail]
158 Hilltop Crescent
Walnut Creek, CA 94597-3452
Tel: [phone]
Attorneys for Plaintiff HOLLYNN D’LIL
JAMES SANCHEZ, City Attorney (SBN 116356)
KATHLEEN ROGAN, Senior Deputy City Attorney (SBN 186055)
CITY OF SACRAMENTO
Mailing: P.O. Box 1948, Sacramento, CA 95812-1948
Office: 915 I Street, 4th Floor, Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant CITY OF SACRAMENTO

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
HOLLYNN D’LIL,

Case No. 2:11-CV-02230-WBS-CA
Civil Rights

Plaintiff,
v.
RIVERBOAT DELTA KING, INC.;
CITY OF SACRAMENTO; [OLD
SACRAMENTO BUSINESS
ASSOCIATION, INC.]; and DOES 1
through 50, Inclusive,

FULL CONSENT DECREE ORDER AND
JUDGMENT AGAINST DEFENDANT
CITY OF SACRAMENTO

Defendant.

INTRODUCTION
1.

Plaintiff HOLLYNN D’LIL has a physical disability that requires the full time

use of a wheelchair for mobility.
2.

Defendant CITY OF SACRAMENTO owns the boardwalk and wharf area

proceeding along the waterfront of the Sacramento River, and, for purposes of these related
actions, covers the waterfront area proceeding between J and L Streets. It also owns the Aft
Service Ramp and K Street Landing Barge, which together are known in this action as the
Access Infrastructure, as well as the adjacent pleasure-boat docking area known in this action
as the Head Pier. This action also pertains to Defendant’s ownership and/or lease of certain
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 1

appurtenances within this area, including, but not limited to, the paths of travel extending from
front Street and leading to the waterfront businesses Joe’s Crab Shack, Rio City Café and Delta
King Hotel, as well as its valet parking. Collectively, all of these areas shall be referred to
herein as the “Boardwalk.”
3.

Plaintiff filed this action for herself and all other similarly situated members of

the public to vindicate their rights under Title II of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12101 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§794, and Civil Code Section 54 and 54.1. Plaintiff alleges that Defendant violated these
statutes by failing to provide full and equal access. Specific identification of the facilities and
their deficiencies were identified in the Complaint in the first action filed on August 23, 2011,
and in the second action on December 12, 2014.
4.

In each action, Plaintiff alleges that the boardwalk has undergone construction

triggering the requirement of full compliance with regulations in the altered areas, and are
otherwise required by Defendant’s obligations for providing accessible programs, services and
activities. Defendant denies all the charges.
5.

The subject parties enter this Full Consent Decree Order and Judgment

(hereafter “Consent Decree”) in order to fully resolve the issues, claims and defenses in these
related actions.

STIPULATIONS
6.

Plaintiff’s Qualified Disability. Plaintiff qualifies as “a person with a physical

disabilities” as defined by the relevant statutes.
7.

Plaintiff’s Status as Aggrieved and Potentially Aggrieved.

Plaintiff

HOLLYNN D’LIL alleges she has standing to bring this action, that she currently lives in
Graton, California, but that until relatively recently, she lived for decades in Sacramento, that
she still regularly conducts personal, business and political affairs in Sacramento including
within the Old Town District. Her activities there include dining and shopping, and a prior
attempt to stay at the Delta King Hotel. While the City of Sacramento does not admit all of the
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 2

foregoing allegations, it agrees that its representatives have knowledge of sufficient verified
facts to support Plaintiff’s qualification as “aggrieved and potentially aggrieved” under the
relevant statutes, and for her individual standing under Article III of the U.S. Constitution.
8.

Alteration History and Programs, Services and Activities. The parties

stipulate that all the subject areas identified herein as the Boardwalk were installed in the late
1980s and hence is subject to the requirements of Government Code sections 4450, 4456; Civil
Code Section 54.3 and Title 24, Part II, of the California Code of Regulations, and section 504
of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the governing UFAS regulations.
9.

Scope of Facilities in Issue. The following are the facilities of the Boardwalk

affected by this Full Consent Decree: including, but not limited to: the accessible route from the
public sidewalk and boundary of the site on Front Street to the main entrance of Joe’s Crab
Shack, Rio City, and the Delta King Hotel, the two elevated viewing decks, the access to the
ramps and elevator tower serving the Delta King Hotel, the valet parking serving the Delta
King, and the paths of travel across the train tracks, and the head pier running along the full
length of the Delta King.

JURISDICTION
10.

The facts requisite to federal jurisdiction are admitted.

This Court has

jurisdiction pursuant to 28 U.S.C. §1331 for the alleged violations of the ADA, 42 U.S.C.
§§ 12101, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794.
Article III jurisdiction is proper due to each Plaintiff’s continued exposure and use of the
Boardwalk. Pendant jurisdiction of the state law claims arises from a common nucleus of fact
and is proper.
11.

This Court shall have continuing jurisdiction to interpret and enforce this Full

Consent Decree until Defendant have fulfilled all conditions hereunder. This agreement is
contingent upon Court-acceptance of this continuing jurisdiction.
12.

The parties agree to entry of this Full Consent Decree in order to resolve the

below listed allegations raised in the Complaint filed with this Court on August 23, 2011.
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 3

Accordingly, the parties agree to this Full Consent Decree without trial or further adjudication
of any issues of fact or law concerning the issues specified herein Full Consent Decree
Judgment and Order.
13.

In entering this Full Consent Decree, Defendant agree this Full Consent Decree

fully vindicates Defendant’s violation of Plaintiff’s rights under the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, and Civil Code Section 54 and 54.1 as
to the matters covered herein.
WHEREFORE, the parties hereby agree and stipulate to the Court’s entry of this Full
Consent Decree Judgment and Order, which provides as follows:

SCOPE OF RESOLUTION
14.

This Full Consent Decree shall be a full, complete, and final disposition of only

the matters covered herein.

This Full Consent Decree was reached through negotiations

between the Subject Parties. The Court shall retain jurisdiction of this action to enforce and
interpret its terms.

AGREEMENTS CONCERNING INJUNCTIVE RELIEF
15.

Specific Agreed Remediations. Defendant City of Sacramento agrees it shall

perform the following work to bring the subject Boardwalk facilities into full compliance with
statutory accessibility requirements:
a.

Defendant shall replace all surface boards forming the Boardwalk, which

is acknowledged to be presently comprised of wooden planks with an irregular surface, with a
material that is smooth and level, and whose installation has no sudden change of rise greater
than ½ inch or ¼ inch beveled. (2007-CBC §1131A.1; ADAAG §4.5.2.) Defendant agrees to
make a capital allocation of approximately $2.5 million for this purpose, and another allocation
of approximately $1.2 million for the associated repairs to the K Street Landing Barge.
b.

After performance of the work described in subparagraph (a), supra,

Defendant shall maintain the accessible features of the Boardwalk’s surface. (28 CFR 35.133 (a).)
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 4

c.

Defendant shall install a new or modified path of travel leading between

the boardwalk and the Delta King’s main, third-floor hotel entrance, which at all river heights
shall comply with all current Title 24 and ADAS requirements applicable to “Ramps” (see
2013-CBC §11B-405 et seq. and ADAS §405 et seq.), except for temporary and isolated
instances due to extreme river height at the flood stage of 23 feet or greater above mean-lowlow tide, or, alternatively, install another compliant means of vertical-disabled-access at this
location. As a third option, Defendant may permanently close the current Aft Ramp from
public use through a locked gate at the top wharf-entry point that shall restrict use of the ramp
to employee, vendor, service or City personnel, and which shall also be equipped with alarmedpanic hardware on the gate’s interior, which shall permit public use only in the event of an
emergency. (Note, also see paragraph 18, infra, as to “Option to Close Facilities,” and the
springing obligation imposed if such facilities should later be reopened for public use, which
shall include the closure option specified in this paragraph.)
d.

Defendant shall provide compliant valet, passenger loading, and

accessible reserved-self-parking facilities meeting the requirements of the California Building
Code (CBC) and/or the Americans with Disabilities Act Accessibility Guidelines (ADAAG).
e.

Defendant shall provide parking spaces that are level within 2% in all

directions, and that are marked and delineated and signed, all as required by code. (CBC
§1129B; ADAAG §4.6.3 §1129B.3 #.)
f.

Defendant shall provide path of travels from the foot of J, K and L

Streets across the railroad tracks that have no slope within them exceeding 5%. (2007-CBC §§
1114B.1.2 & 1128B; and ADAAG §§ 4.3.2 & 4.3.7).
g.

Defendant shall provide paths of travel from the foot of J, K and L

Streets across the railroad tracks that are level and flush and without gaps on the outer edge
greater than that permitted by code (i.e., no greater than 2 ½ inches wide on the inner edge)
(2007-CBC §1121B.3.1(13) and §ADAAG §10.3.1(13)), and which otherwise do not have
sudden vertical rises that greatly exceed ¼ inch maximum, or ½ inch beveled, as required by
code. (2007-CBC §1131A.1; ADAAG §4.5.2.)
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 5

h.

Defendant shall modify the paths of travel to the two viewing platforms

to ensure that they are fully comply with the requirements and features for an “accessible
ramp.” (2007-CBC §1133B.5 et seq.; ADAAG §4.8 et seq.).
i.

In relation to the lower path of travel serving the base of the elevator

barge, and more specifically at the area near the sloped ramp serving the path to the aft, seconddeck entrance of the Delta King, and also for the area on opposite side, which currently
provides a sloped path of travel to the Horn-Blower Yacht, Defendant shall modify both of
these areas so that no slope within them exceeds 5% in the direction of travel; or, alternatively,
Defendant shall modify these areas so that they fully comply with the code requirements for
ramps, and with no slope exceeding 8.3%, and with proper handrails, wheelguides, etc. (2007CBC §1133B.5 et seq.; ADAAG §4.8 et seq.).
j.

Defendant shall close the risers on the staircase flights leading from the

elevator deck K-Street Landing Barge and down to the event space, and shall have the upper
approach and all treads marked by a stripe providing clear visual contrast.
k.

Defendant shall close the risers on the staircase flights leading from the

barge-event-area up to the Delta King’s forward third floor entrance, and shall have the upper
approach and all treads marked by a stripe providing clear visual contrast.
l.

At the steps coming off the sidewalk near the valet booth, Defendant

shall have the upper approach and all treads marked by a stripe providing clear visual contrast.
m.

Defendant shall demarcate a crosswalk across the valet area to denote the

continuation of the public sidewalk. The Parties agree that such demarcation may coincide
with the new passenger loading area called for within this agreement, supra, at subparagraph d.
n.

Defendant shall also install signage at appropriate locations on either

side of the turn-around directing disabled users toward the continuation of the public sidewalk.
16.

Performance Standards. All of the foregoing facilities shall be brought into

full and strict compliance with the literal performance standards for altered facilities under the
Americans with Disabilities Standards for Accessible Design, effective March 15, 2011, and
under California’s Title 24, (2013), whichever, for any particular element, provides the
Full Consent Decree Order and Judgment:

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strongest level of protection to persons with disabilities. Defendant also hereby releases all
alleged claimed defenses to literal compliance such as undue burden, unreasonable hardship,
undue hardship, legal and physical constraint, technical infeasibility, 20% cost-cap, ENE,
historical fabric, etc.
17.

Option to Close Facilities. In lieu of making modification to any particular

facility or amenity called for by this decree, the Defendant may choose to permanently
close/remove such facility, element or amenity from public use. Such facility, element or
amenity shall not be reopened or re-provided for public use without provision of disabled
access pursuant to the terms of paragraphs 15 and 16.
18.

Time for Compliance. All work on the boardwalk, including the valet parking

and all areas touching the boardwalk shall be completed within five years of the date of court
approval of this Consent Decree. As to all other work, including the aft ramp, Defendant shall
complete all such work within three years of the date of court approval of this Consent Decree,
allowing for good faith interruptions due to inclement weather, administrative delay in the
permitting process of outside entities, contractor unavailability, and other causes under the
Doctrine of Force Majeure. Defendant will provide written notice regarding the status of
completion within three and one-half years after entry of this Order. Defendant shall then
provide Plaintiff, her attorneys and consultants with physical access to inspect, measure and
photograph the facilities to verify that the completed work complies with the terms herein.
19.

Enforcement. Should Plaintiff in the future become aware of any facts or

conditions relating to the subject public accommodation that may give rise to a claim that
Defendant has failed to comply with any of the injunctive relief provisions set forth herein,
Plaintiff agrees to provide the City Clerk with notice of the observed defects and no less than 45
days to investigate and respond to Plaintiff. If the City declines to take corrective action,
Plaintiff shall be permitted to file a noticed motion under the current case number of this action
seeking enforcement of this Full Consent Decree.

The “prevailing party” in such motion

proceedings, whether in full or in part, may be entitled to an award of reasonable attorney fees,
litigation expenses and costs for such motion, i.e., the fee recovery shall be pursuant to the
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 7

normal prevailing party standards that applied under the subject statutes before entry of this
decree, under the subject fee shifting statutes named in the complaint and Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978). Thus, Defendant may be entitled to recovery of
attorney’s fees in such proceeding only upon proof that Plaintiff’s motion is found to be
frivolous or brought in bad faith.

RESOLUTION OF PLAINTIFF’S CLAIMS FOR DAMAGES
20.

The City of Sacramento and each plaintiff have already entered a complete

written settlement and release of Plaintiff’s claims for statutory and compensatory damages –
as against the City – on all issues, including without limitation, claims for statutory damages
under Title II of the ADA, Section 504 of the Rehabilitation Act, Civil Code Sections 52 and
54.3, and damages for bodily and personal injury.

Plaintiff stipulates to already having

received all compensation called for under such settlement. The Parties stipulate that the
foregoing amount was intended to be paid in full to Plaintiff, and understand that no part of it
was received by Plaintiff’s counsel in compensation for Plaintiff’s separate claim for
reasonable statutory attorneys’ fees, litigation expenses, and costs.

RESOLUTION OF CLAIM FOR REASONABLE STATUTORY ATTORNEYS FEES,
LITIGATION EXPENSES AND COSTS:
21.

Defendants agree to pay Plaintiff the amount of $370,000 in full satisfaction of

Plaintiffs’ claims for interim and final claims for reasonable statutory attorney fees, litigation
expenses and costs under Section 505 of the ADA [42 USC 12205]; and Civil Code Sections 52
and 54.3. A check for this amount shall be made payable to “TIM THIMESCH, IN TRUST,”
and delivered to him within fourteen business days of City Council approval of this settlement.

FULL CONSENT DECREE JUDGMENT AND ORDER:
22.

This Full Consent Decree constitutes the entire agreement between the parties

on the matters covered, and no other statement, promise, or agreement, either written or oral,
Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 8

made by any of the parties or agents of any of the parties, that is not contained in this Full
Consent Decree Judgment and Order, shall be enforceable regarding the matters described
herein.
CONSENT DECREE BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
23.

The parties agree and represent that they have entered into this Full Consent

Decree voluntarily, under no duress, and wholly upon their own judgment, belief, and
knowledge as to all matters related to it, after having received full advice from counsel.
24.

This Full Consent Decree shall be binding on Plaintiff and Defendant and any

successors in interest. The parties have a duty to so notify all such successors in interest of the
existence and terms of this Full Consent Decree during the period of the Court’s continuing
jurisdiction to enforce its terms.

JOINT PREPARATION AND SEVERABILITY:
25.

This Full Consent Decree is deemed jointly prepared by all parties and shall not

be strictly construed against any party as its drafter. If any term of this Full Consent Decree is
determined by any court to be unenforceable, all other terms shall nonetheless remain in full
force and effect.
SIGNATORIES BIND PARTIES:
26.

Signatories on the behalf of the parties represent that they are authorized to bind

the parties to this Full Consent Decree.
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Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 9

SIGNATORIES BIND PARTIES:
27.

This Full Consent Decree may be executed in counterpart signatures, and such

signatures may be attached in counterparts, each of which shall be deemed an original, and
which together shall constitute one and the same instrument. Such counterparts may be signed
as faxed signatures, which shall have the same force and effect as original signatures.

Dated: January 15, 2015
/s/ Authorized Signed – HolLynn D’Lil
HOLLYNN D’LIL

Dated: January 15, 2015
/s/ Authorized Signed - John Shirey
CITY OF SACRAMENTO
By:
John Shirey
Title: City Manager

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Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 10

APPROVED AS TO FORM:

Dated: February 3, 2015

THIMESCH LAW OFFICES
TIMOTHY S. THIMESCH
/s/ Authorized Signed
Attorneys for Plaintiff
HOLLYNN D’LIL

Dated: February 3, 2015

JAMES SANCHEZ City Attorney
KATHLEEN ROGAN, Sr. Deputy City Atty.
/s/ Authorized Signed
Attorneys for Defendant
CITY OF SACRAMENTO

ORDER
IT IS SO ORDERED.

Dated: February 3, 2015

Full Consent Decree Order and Judgment:

Exhibit 1 ─ Page 11