Murray v. Park Management Corp.

Filing 32

CONSENT DECREE signed by District Judge Troy L. Nunley on 6/5/2017. (Michel, G.)

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

A Limited Liability Partnership
Including Professional Corporations
HAYLEY S. GRUNVALD, Cal. Bar No. 227909
3 [e-mail]
501 West Broadway, 19th Floor
4 San Diego, California 92101-3598
Telephone: [phone]
5 Facsimile: 619-234-3815
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6 Attorneys for Defendant
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PARK MANAGEMENT CORP., dba SIX
FLAGS DISCOVERY KINGDOM

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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12 CAROL MURRAY,
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Case No. 2:15-cv-02105-TLN-KJN

Plaintiff,
CONSENT DECREE.

v.

15 PARK MANAGEMENT CORP., dba

Complaint filed: October 8, 2015

SIX FLAGS DISCOVERY

16 KINGDOM,
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Defendant.

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CONSENT DECREE
Case No. 2:15cv02105-TLN-KJN

1

I.

2

BACKGROUND AND SCOPE OF CONSENT DECREE

3

1.

Plaintiff Carol Murray (“Plaintiff”) filed a Complaint in this action on

4 October 8, 2015 (“the Action”), alleging violations of the Americans with
5 Disabilities Act of 1990 (“ADA”), 42 U.S.C. sections 12101 et seq., California’s
6 Unruh Civil Rights Act, California Civil Code section 51, and California’s Health
7 and Safety Code sections 19955(a), 19959 and 19953, against Defendant Park
8 Management Corp., dba, Six Flags Discovery Kingdom (“Defendant,” and together
9 with Plaintiff, “the Parties”) relating to, inter alia, physical and policy barriers to
10 access at Six Flags Discovery Kingdom as of April 9, 2015, and continuing.
11 Specifically, Plaintiff alleged that Defendant failed to provide her full and equal
12 access to its amusement park located at: 1001 Fairgrounds Drive, Vallejo, CA 94589
13 (“the Park”). Defendant denies the allegations in the Complaint and by entering into
14 this Consent Decree does not admit liability to any of the allegations in Plaintiff’s
15 Complaint filed in the Action. The Parties hereby enter into this Consent Decree for
16 the purpose of resolving the injunctive relief issues in this lawsuit without the need
17 for protracted litigation and without the admission of any liability. The Parties have
18 entered into a separate settlement agreement resolving all of Plaintiff’s monetary
19 claims.
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II.

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JURISDICTION

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2.

The Parties to this Consent Decree agree that the Court has jurisdiction

23 over this matter pursuant to 28 U.S.C. §§ 1331 and 1343 for alleged violations of the
24 Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq., and
25 pursuant to supplemental jurisdiction for alleged violations of California law
26 pursuant to 28 U.S.C. § 1367.
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-2CONSENT DECREE
Case No. 15cv02105-TLN-KJN

1

3.

To avoid the costs, expense, and uncertainty of protracted litigation, the

2 parties to this Consent Decree agree to resolve all claims regarding injunctive relief
3 raised in the Action. Accordingly, they agree to the entry of this Consent Decree
4 without trial or further adjudication of any issues of act or law concerning Plaintiff’s
5 claims for injunctive relief.
6

4.

The Parties have resolved the monetary relief and attorneys’ fees and

7 costs portion of Plaintiff’s Action which resolution has been memorialized in a
8 separate and confidential settlement agreement.
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WHEREFORE, the Parties to this Consent Decree hereby consent as follows:

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III.

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SETTLEMENT OF INJUNCTIVE RELIEF

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5.

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

14 settlement of Plaintiff’s claims against Defendant for injunctive relief that have
15 arisen out of the subject Complaint. The Parties agree that there has been no
16 admission or finding of liability and this Consent Decree shall not be construed as
17 such.
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6.

Barrier Removal: Defendant will remediate each barrier to access

19 identified in the chart attached and incorporated hereto as Exhibit A. As used in this
20 Consent Decree, “remediate” and “accessible” mean to modify and/or construct, and
21 maintain, in full compliance with the 2010 Americans with Disabilities Act
22 Standards for Accessible Design and/or Title 24 of the California Code of
23 Regulations, Part 2, Chapter 11B (2016), whichever is more stringent for a given
24 element.
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7.

Timing:

As set forth on Exhibit A, the timing for the remediation

26 efforts has been staggered based on the complexity of the remediation and in
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Case No. 15cv02105-TLN-KJN

1 consideration of the Park’s season and the need to conduct many of the remediations
2 when the Park is closed to the public.
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8.

Entire Consent Decree: This Consent Decree and Exhibit A hereto,

4 which is incorporated herein by reference as if fully set forth in this document,
5 constitute the entire consent agreement between the signing parties on all issues
6 relating to injunctive relief in this Action.
7

9.

Terms of the Consent Decree: This Consent Decree and shall be in

8 full force and effect, and the Court shall retain jurisdiction of this Action to enforce
9 provisions of this Consent Decree, through December 21, 2021, or whenever
10 remediation is complete, whichever comes later.
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10.

Force Majeure:

Defendant shall be excused from performance and

12 shall not be in default in respect of any obligation hereunder to the extent that the
13 failure to perform such obligation is due to a Force Majeure Event as defined
14 Section 11.
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11.

Force Majeure Event:

Force Majeure Event means an event beyond

16 the control of Defendant, which prevents Defendant from complying with its
17 obligations under this Consent Decree, including, but not limited to:
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11.1.1 act of God (such as, but not limited to, fires, explosions,
earthquakes, drought, tidal waves and floods);
11.1.2 war, hostilities (whether war be declared or not), invasion, act of
foreign enemies, mobilization, requisition, or embargo;
11.1.3 rebellion, revolution, insurrection, or military or usurped power,
or civil war;
11.1.4 contamination by radio-activity from any nuclear fuel, or from

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any nuclear waste from the combustion of nuclear fuel, radio-active toxic

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explosive, or other hazardous properties of any explosive nuclear assembly or

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nuclear component of such assembly;

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Case No. 15cv02105-TLN-KJN

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11.1.5 riot, commotion, strikes, go slows, lock outs or disorder;

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11.1.6 acts or threats of terrorism; or

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11.1.7 a governmental authority’s refusal to grant to Defendant the

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required permits to conduct work required in Exhibit A to this Consent

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Decree.

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12.

Extension of Time for Compliance:

To the extent a circumstance

7 arises which makes compliance with the deadlines set forth in Exhibit A impossible,
8 Defendant may request and Plaintiff will reasonably grant Defendant an extension
9 of time.
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13.

Severability:

If any term of this Consent Decree is determined by

11 any court to be unenforceable, the other terms of this Consent Decree shall
12 nonetheless remain in full force and effect.
13

14.

Attorneys’ Fees. In the event that future and additional litigation is

14 reasonably required by the Parties, either individually or collectively, to remedy a
15 breach of this Agreement and/or to enforce the Parties’ respective rights pursuant to
16 this Consent Decree, the prevailing party or parties as determined by a court of
17 competent jurisdiction shall be entitled to recover from the non-prevailing party as
18 also determined by a court of competent jurisdiction all reasonable costs, attorneys’
19 fees, and expenses reasonably incurred in such future and additional litigation.
20

15.

Signatories and Binding Parties:

Signatories on behalf of the

21 Parties represent that they are authorized to bind the Parties to this Consent Decree.
22 This Consent Decree may be signed in counterparts and a facsimile shall have the
23 same force and effect as an original signature.
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16.

Consent Decree Void if Not Entered into by Court within 30 Days.

25 The Parties agree that their consent to this Consent Decree is contingent upon the
26 Court’s approval within 30 days of its filing with the Court. Should the Court not
27 sign the Consent Decree within 30 days of its filing with the Court, or should the
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Case No. 15cv02105-TLN-KJN

1 Court decline to enter the Consent Decree, the Parties’ consent hereto shall be
2 deemed immediately withdrawn and this Consent Decree shall have no force or
3 effect.
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5 IT IS SO ORDERED.
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7 Dated: June 5, 2017
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Troy L. Nunley
United States District Judge

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13 CONSENT GIVEN AND DECREE APPROVED BY THE PARTIES:
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Dated: May 31, 2017

MISSION LAW FIRM, A.P.C.
TANYA E. MOORE

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Attorneys for Plaintiff
CAROL MURRAY

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Dated May 2, 2017

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
HAYLEY S. GRUNVALD
Attorneys for Defendant

PARK MANAGEMENT CORP., dba SIX
FLAGS DISCOVERY KINGDOM

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Case No. 15cv02105-TLN-KJN

EXHIBIT A TO CONSENT DECREE
Work To Be Completed by 2017
Post appropriate directional signage readily visible directing
mobility impaired patrons to bypass turnstiles and metal detectors
to an entry/exit with a clear width of at least 32".
Provide and maintain proper clear width between queue control
barriers at the ticket services pedestrian queue.
Provide appropriate signage at non-accessible ticket sales counters
indicating the location of the nearest accessible ticket sales counter.
Either relocate or replace the ATM located in the park
entrance/ticket sales area to ensure it has operable parts within 48"
of the finished ground surface.
Either relocate or replace the ATM located in the park
entrance/ticket sales area to ensure there is a proper clear level
area.
Properly secure or remove all unsecured floor mats within public
areas of the Park.

Work To Be Completed by 2018
If portable toilet units are provided at the patron parking lot(s), at
least 5% of the total number of portable toilet units shall be fully
accessible, which shall include proper level maneuvering
clearances at the entry/exit floor, proper level space inside the
portable toilet room, properly positioned toilets, properly
configured and positioned grab bars, properly positioned
accessories, and properly configured door hardware.
All designated accessible counters at the park entrance
ticket/season pass sales area shall have their countertops surface
within 34" of the finished ground surface. Remove accessible
signage from ticket counters which are not accessible.

SMRH:226667714.2

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Provide properly configured and identified accessible routes of
travel throughout all public areas of the Park, connecting all public
elements (e.g. ride entry/exits, assembly spaces, exhibit areas, store
entrances, dining areas, concessions service counters, restrooms,
etc.). On such accessible routes of travel with excessive running
slopes, cross slopes and vertical changes in level, place signage
directing mobility impaired patrons to the most accessible path of
travel. Properly smooth all gaps in the walking surface and cut
back all vegetation which restricts the required clear width of the
accessible routes.
Provide at least one properly identified and configured accessible
entry/exit to each public building throughout the Park, including,
but not limited to, proper clear level door landings, maneuvering
clearances, door threshold, door hardware, uninterrupted smooth
surface on the bottom of the push side of the door, and door
operating pressure and closing period. Provide directional signage
at all non-accessible entry/exits indicating the location of the
nearest accessible entry/exit to the same building.
The gumball machine near the park entrance merchandise store,
unless it is removed, shall not require tight grasping, pinching,
and/or twisting to operate.
Where pedestrian routes of travel exceed 5% in slope up to 8.33%,
provide signage directing mobility impaired patrons to least sloped
route of travel. Also, create Park map to be kept in the Park’s
guest services/guest relations, which details the leased sloped path
of travel for mobility impaired patrons.
Provide sufficient clear width along routes of travel between all
line control barriers.
Provide and maintain proper clear width of the routes of travel
through all merchandise stores in the Park.
Where accessible unloading areas also serve as accessible loading
areas, provide proper signage indicating the location of the
accessible loading and unloading areas at the entrance to the ride’s
queue.

SMRH:226667714.2

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Provide a proper clear floor space for a wheelchair in the First Aid
building waiting area.
If a service counter/window is present in the First Aid building,
then provide a properly configured accessible portion.
Provide at Guest Services a Park map which delineates the best
path of travel for mobility impaired persons.

Work To Be Completed by 2019
Provide at least one properly configured and identified accessible
portion of the counter at each sales/service counter, concession
stand, booth, dining facility or other element containing sales or
service counters. At all non-accessible counters, post proper
signage indicating the location of the nearest accessible counter
serving that element. This shall specifically include the following
dining facilities: California Crepes, Chop Six (formally Panda),
Cold Stone Creamery, Dare Devil Grill, JB’s Sports Bar & Grill,
Johnny Rockets Express, Macho Nacho Burritos, Montego Bay
Market, Oasis Club, Odin’s Snack Shack, Outpost Café, Paddle
Handle Corn Dogs, Paradise Snacks, Pirate Popcorn, Port of Call,
Primo’s Pizzeria, Seamoore Cott’s Fish & Fries, Seaside Soft Serve
and Funnel Cake, Sharkey's Snack Shack, Six Below, Totally
Kickin' Chicken and Dippin Dots.

At all self-service stations, items, elements, and operable parts,
at least one of each type shall be within proper reach ranges. This
shall include food/beverage items and dispensers, vending
machines, napkin dispensers, ATMs, interactive exhibits and touch
screens.
Where bar counter seating is provided, provide a properly
configured accessible portion of the counter with proper clear floor
space and knee/toe clearances.
Provide at least one properly configured and positioned hand
washing sink(s), drinking fountain(s), soap dispenser(s), and paper
towel dispenser(s) at the Seal Cove feeding area.
Provide proper clear level floor space at each rider height check
pole.

SMRH:226667714.2

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Provide proper wheelchair storage areas at each ride’s accessible
loading/unloading area.
Provide operational platform lifts at the Medusa roller coaster and
Kong roller coaster.
Train employees on providing timely access to lifts at both Medusa
and Kong rollercoasters.
Provide a properly configured and identified accessible route of
travel to the designated accessible First Aid building entry/exit.
Provide and maintain proper maneuvering clearances at the
entrance to the women’s restroom in the First Aid building.
Provide a properly configured women’s or unisex restroom in the
First Aid building, including, but not limited to, proper
maneuvering clearance at the toilet, properly positioned lavatory,
properly insulated lavatory plumbing, properly configured and
positioned grab bars, and properly positioned accessories.
Provide at least one properly configured accessible drinking
fountain at all single drinking fountains or groupings of drinking
fountains, including, but not limited to, proper knee clearance,
proper mounting height, proper water flow, and proper clear level
floor space.

Work To Be Completed by 2020
The path of travel to the shark tunnel moving walkway shall be free of
excessive vertical height changes and gaps in the walking surface.
If stand-alone booth game/attractions (“Carnival Games”) are not removed,
for each type of Carnival Game, provide at least one of each type which is
properly configured and identified as accessible. Provide proper signage at
all non-accessible Carnival Games indicating the location of the nearest
equivalent accessible Carnival Game. Provide proper clear floor space at
each Carnival Game, and ensure that the Carnival Games’ operable parts are
positioned within proper reach ranges. Carnival Games specifically includes,
but is not limited to, all of the following: “Top Glow,” “Weight Guessing
Game,” and the “Photo Booth.”
Provide properly configured routes of travel to the designated accessible ride
loading/unloading areas.
Work To Be Completed by 2021

SMRH:226667714.2

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Provide the required number of properly configured and identified
accessible/van-accessible parking stalls within the Guest Parking
Lot.
Each accessible/van-accessible parking stall and adjacent access
aisle shall have properly configured level surfaces, free of
excessive gaps and vertical height changes.
Provide properly configured pavement markings at the access
aisles adjacent to the designated accessible parking stalls.
Provide a properly configured and identified accessible route of
travel from each of the designated accessible parking stalls to the
park entrance, which shall not require travel behind vehicles other
than one’s own, and which shall be free of excessive slopes, gaps,
and vertical height changes
Provide a properly configured accessible route of travel from each
of the designated accessible parking stalls/van accessible parking
stalls in the Guest Parking Lot to the shuttle pick up, which shall
not require travel behind vehicles other than one’s own, and shall
be free of excessive slopes, gaps, and vertical height changes.
Relocate or remove portable toilets, guardrails, trash cans and other
obstacles which obstruct the required clear width of such routes of
travel
Make available at least one shuttle bus which is properly
configured for accessibility, including properly configured
wheelchair loading/unloading ramp or lift, proper clear width of
the route from the bus entry/exit to the wheelchair seating space,
and proper clear floor space for wheelchairs clear of the route of
travel within the bus. Said bus(es) shall either run on a regular
cycle not to exceed 30 minutes between pick-ups which schedule
shall be posted at all shuttle bus pick-up sites, or be available to
pick up and transport disabled patrons between the Guest Parking
Lot and the Park entrance within a reasonable period of time upon
request.
Provide proper clear level floor spaces at all public elements.
This shall specifically include all photo booths/kiosks, vending
machines, exhibit information displays, exhibit viewing areas,
drinking fountains, sales/service counters, ATMs, locker rental
machines and lockers. If it is not possible to provide proper clear
level floor space at the abovementioned public elements, then
either remove and/or relocate said elements to an accessible area

SMRH:226667714.2

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Provide the required number of properly configured accessible
seating spaces, including proper clear level floor space at
wheelchair accessible seating spaces, at each grouping of dining
areas where tables and chairs are provided for patron dining in the
Park.
Provide a proper clear, level wheelchair seating space adjacent
to each bench or grouping of benches (e.g. park bench style
benches provided for the purpose of waiting/resting), or provide
signage at all bench seating which lacks a clear level wheelchair
space indicating the location of the nearest accessible wheelchair
area.
Either remove sting ray exhibit or provide a properly configured
accessible portion of the sting ray exhibit viewing area. If sting ray
exhibit is not removed, make exhibit non-interactive.
At all animal encounters open to the public, and for which
Plaintiff meets the Safety and Accessibility Guide to participate
and has paid any applicable additional fees required, ensure
properly configured accessible viewing area to include level clear
floor space and/or provide an equivalent experience. Animal
encounters shall include, but are not limited to: Butterfly Habitat,
Dolphin Discovery, Elephant Encounter, Giraffe Encounter,
Kingdom Stage, Seal Cove, Sharks in the Dark, Trainer for a Day,
and Wildlife Discovery.
Provide a properly configured women’s or unisex restroom in the
ticket booth area, including, but not limited to, properly positioned
lavatory, proper self-closing mechanism and door hardware on
toilet compartment door, properly positioned accessories, and a
properly configured accessible route to the restroom.

SMRH:226667714.2

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Provide properly configured and identified accessible unisex
restrooms and/or the proper number of accessible toilet
compartments and lavatories in each grouping of restrooms,
including but not limited to, proper door maneuvering clearances,
proper level floor spaces, proper lavatory knee clearances, proper
lavatory counter heights, proper lavatory plumbing insulation,
proper positioning of accessories, proper configuration of sanitary
product dispensers’ operable parts, proper size and configuration of
accessible toilet compartments, proper self-closing mechanisms
and door hardware on accessible toilet compartment doors,
properly configured and positioned toilets including location of
flush mechanism, properly configured and positioned grab bars,
properly positioned baby changing stations, and properly
positioned coat hooks.

At each entertainment venue in the Park which is open to the
public, provide the proper number of wheelchair accessible seating
spaces, and adjacent companion seating spaces, which provide an
equivalent experience.
On accessible routes of travel to entertainment venues in the
Park, properly smooth all gaps in the walking surface and cut back
all vegetation which restricts the clear width of the accessible
route. If, in light of natural topography of the Park’s grounds, an
accessible route of travel includes an excessive running slope,
cross slope and/or vertical change in level, place signage directing
mobility impaired patrons to the most accessible path of travel.
Entertainment Venues specifically include, but are not limited to:
Sea Lion Stadium, Dolphin Harbor, Odin’s Temple of the Tiger,
Toyota Stadium and Discovery Theatre. Also specifically included
are Explorer’s Outpost, Guest Services/Guest Relations and First
Aid.
Where specialized seating is provided at an entertainment venue
(e.g. “Splash Zone,” “Flash Pass,” “VIP Tours,” “Explorer
Outpost,” etc.), provide the proper number of wheelchair accessible
seating spaces, and adjacent companion seating spaces, which
provide an equivalent experience.
Retrain employees on accessibility requirements relevant to their
specific job assignment.

SMRH:226667714.2

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