United States of America v. QuikTrip Corporation

Filing 5

CONSENT DECREE - Ordered by Senior Judge Warren K. Urbom. (GJG)(Electronic document-no original to return to USA).

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-CRZ United States of America v. QuikTrip Corporation Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) QUIKTRIP CORPORATION, ) ) Defendant. ) ____________________________________) 8:10CV262 Civil Action No. ____________________ CONSENT DECREE I. BACKGROUND A. 1. Introduction This Consent Decree is agreed to, by and between, Plaintiff United States of America and QuikTrip Corporation. 2. For purposes of this Consent Decree, QuikTrip Corporation is referred to as "QuikTrip" or "Defendant," the United States Department of Justice is referred to as "Department" or "United States," and Plaintiff United States and Defendant are referred to collectively as the "Parties." 3. This action was brought by the United States to enforce the provisions of Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12181 - 12189 ("Title III"), and its implementing regulation, 28 C.F.R. pt. 36 ("Title III Regulation"), which includes the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, app. A (1991) Page 1 of 73 Dockets.Justia.com (revised July 1, 1994) ("ADA Standards" or "Standards"). Defendant owns and operates more than 550 convenience stores and gas stations, and truck stop and travel center facilities, under the QuikTrip brand, located in at least nine states, including Arizona, Georgia, Iowa, Illinois, Kansas, Missouri, Nebraska, Oklahoma, and Texas. These facilities were designed, constructed, and/or altered by QuikTrip or by third party architects and contractors retained by QuikTrip. They are based on prototype design plans, and share common, and often identical, architectural elements and features. The United States' Complaint in this action alleges that QuikTrip has engaged in a pattern and practice of disability discrimination in violation of Title III of the ADA and the Title III Regulation by failing to design and construct facilities and failing to make alterations to facilities in compliance with the ADA Standards, and by failing to remove barriers to access for individuals at facilities where readily achievable to do so. 4. Defendant has its principal place of business at 4705 S. 129th E. Avenue, Tulsa, Oklahoma 74134. Defendant is a private entity within the meaning of Section 301 of the ADA, 42 U.S.C. 12181, and 28 C.F.R. 36.104. The convenience stores, fuel stations, and truck stop and travel centers owned, operated, and/or altered by Defendant are places of public accommodation covered by Title III of the ADA. 28 C.F.R. 36.104. Because Defendant owns, operates, designs, constructs, and alters places of public accommodation, Defendant is covered by, and subject to the requirements of, Title III of the ADA. 42 U.S.C. 12181(7)(F), (7)(E), and 12183. For purposes of this Consent Decree, "QuikTrip Store" shall mean and refer to any place of public accommodation owned or operated by QuikTrip. Page 2 of 73 5. Defendant denies the allegations in the Complaint that it discriminated against the Complainants or other persons with disabilities. Defendant avers that it has defenses to each and every claim and that it voluntarily sought to remedy self-identified ADA violations prior to entering into this Consent Decree with the United States. Specifically, QuikTrip contends that it initiated an accessibility improvement program that it believes to be sufficient to comply with ADA requirements. The United States disagrees with QuikTrip's contentions. Defendant is entering into this Consent Decree to avoid the costs of further litigation with the United States. Nothing in this Consent Decree shall be interpreted as an admission of liability for violations of the ADA. B. 6. Relevant Provisions of the Americans with Disabilities Act The ADA prohibits public accommodations, including those that own and operate convenience stores, fuel service stations, and truck stop and travel center facilities, from discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of places of public accommodation. 42 U.S.C. 12182(a); 28 C.F.R. 36.201. 7. The ADA also prohibits the failure to design and construct convenience stores, fuel service stations, truck stop and travel center facilities, and other places of public accommodation and commercial facilities built for first occupancy after January 26, 1993, to be readily accessible to and usable by individuals with disabilities in accordance with the ADA Standards. 42 U.S.C. 12183(a)(1); 28 C.F.R. 36.401, 36.406(a). 8. The ADA further prohibits the failure to make alterations to convenience stores, fuel service stations, truck stop and travel center facilities, and other places of public Page 3 of 73 accommodation and commercial facilities in such a manner that, to the maximum extent feasible, the altered portions of the facilities are readily accessible to and usable by individuals with disabilities in accordance with the ADA Standards. 42 U.S.C. 12183(a)(2); 28 C.F.R. 36.402, 36.403, 36.406(a). 9. The ADA additionally prohibits the failure to remove architectural barriers at convenience stores, fuel service stations, truck stop and travel center facilities, and other places of public accommodation where such removal is readily achievable. 42 U.S.C. 12182(b)(2)(A)(iv); 28 C.F.R. 36.304. C. 10. Consent of the Parties to Entry of this Decree The Parties agree that the Court has jurisdiction of this action pursuant to 42 U.S.C. 12188(b)(1)(B) and 28 U.S.C. 1331 and 1345. The Parties further agree that the controversy can and should be resolved without further proceedings and without an evidentiary hearing. 11. As indicated by the signatures appearing below, the Parties agree to entry of this Consent Decree by the Court. It is hereby ADJUDGED, ORDERED, and DECREED: II. GENERAL NONDISCRIMINATION REQUIREMENTS 12. Defendant, and each of its officers, employees, agents, successors, and assigns, and all others in active concert or participation with Defendant, are permanently enjoined from: a. Discriminating against an individual on the basis of disability or taking any other action in violation of Title III of the ADA, 42 U.S.C. 12181 - 12189; Section 503 of the ADA, 42 U.S.C. 12203; or the Title III Regulation, 28 C.F.R. pt. 36; Page 4 of 73 b. Failing or refusing to design and construct QuikTrip Stores that are readily accessible to and usable by individuals with disabilities in full compliance with 42 U.S.C. 12183(a)(1), 28 C.F.R. 36.401 and 36.406, and the ADA Standards; c. Failing or refusing to make alterations to QuikTrip Stores in full compliance with 42 U.S.C. 12183(a)(2), 28 C.F.R. 36.402 - 36.406, and the ADA Standards; d. Failing or refusing to remove barriers at QuikTrip Stores where readily achievable in full compliance with 42 U.S.C. 12182(b)(2)(iv) and 28 C.F.R. 36.304; e. Failing or refusing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford individuals with disabilities an equal opportunity to access goods, services, facilities, privileges, advantages, or accommodations in full compliance with 42 U.S.C. 12182(b)(2)(A)(ii) and 28 C.F.R. 36.302; f. Failing or refusing to maintain accessible features in operable working condition in full compliance with 28 C.F.R. 36.211; and g. Failing or refusing to take any action, or refrain from taking any action, when necessary to avoid discrimination against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any and all QuikTrip Stores, 42 U.S.C. 12182(a). III. ACTIONS TO REMEDY NONCOMPLIANCE WITH ACCESSIBILITY REQUIREMENTS AT QUIKTRIP STORES Page 5 of 73 13. To ensure that convenience stores, fuel service stations, truck stop and travel center facilities, and other places of public accommodation owned or operated by QuikTrip are readily accessible to and usable by individuals with disabilities, QuikTrip will make physical, operational, and other modifications necessary to bring any and all such facilities into compliance with the ADA Standards according to the Schedule in Paragraph 14. Such modifications shall include but not be limited to the items listed in Exhibit A to this Consent Decree. 14. QuikTrip has retained an Independent Licensed Architect trained in and highly knowledgeable about the architectural accessibility requirements of the ADA. This Independent Licensed Architect ("ILA"), paid by QuikTrip and approved by the United States, must certify compliance with all of the elements of Paragraph 13 of this Consent Decree and the ADA Standards for each QuikTrip Store. QuikTrip must complete modifications at its Stores in sufficient time so that it can achieve certifications of compliance from the ILA in accordance with the following deadlines: a. One third of QuikTrip Stores open as of the Effective Date of this Consent Decree will achieve certification of compliance with the ADA Standards and the elements of Paragraph 13 of this Consent Decree by the ILA by no later than the end of the 12th month after the Effective Date of this Consent Decree. b. Two thirds of the QuikTrip Stores open as of the Effective Date of this Consent Decree, will achieve certification of compliance with the ADA Standards and the elements of Paragraph 13 of this Consent Decree by the ILA by no later than the end of the 24th month after the Effective Date of this Consent Decree. Page 6 of 73 c. All of the QuikTrip Stores open as of the Effective Date of this Consent Decree will achieve certification of compliance with the ADA Standards and the elements of Paragraph 13 of this Consent Decree by the ILA by no later than the end of the 36th month after the Effective Date of this Consent Decree. d. Within ten (10) days after the Effective Date of this Consent Decree, QuikTrip will submit to the United States a schedule listing the QuikTrip Stores that will be certified pursuant to Paragraphs 14.a. through 14.c. 15. In issuing certifications pursuant to this Consent Decree, the ILA retained pursuant to Paragraph 14 will use the certification form set out at Exhibit B. QuikTrip will maintain such certifications issued by the ILA in its records and include copies of such certifications in its reports to the United States regarding compliance with this Consent Decree. In determining compliance, the ILA may not rely on equivalent facilitation in lieu of compliance with a particular Standard, or an innovative site-specific accessibility solution, unless the ILA has received prior approval to do so from an Independent Licensed Architect who is retained by the United States to serve as an expert in this case ("USILA"). Any request for approval to rely on equivalent facilitation shall include an identification of the specific facility at issue (i.e., type of facility and address) and a detailed written analysis by the ILA of how and why the particular departure from the Standard is a design or technology that will provide substantially equivalent or greater access to and usability of that facility. Similarly, any request for approval to rely on an innovative site-specific accessibility solution shall include an identification of the specific facility at issue (i.e., type of facility and address) and a detailed written analysis Page 7 of 73 by the ILA of how and why the solution is appropriate under the circumstances and consistent with ADA requirements. Innovative site-specific accessibility solutions include, but are not limited to, determinations regarding the appropriate placement of accessible parking spaces, and associated curb ramps and accessible routes, at about twenty (20) QuikTrip Stores where trucks delivering fuel currently block access to accessible parking spaces because of the location of fueling fill ports, and readily achievable barrier removal on small sites with steep slopes. QuikTrip and the ILA will provide the USILA with requested information and documents that the USILA deems necessary to make determinations regarding equivalent facilitation and innovative sitespecific accessibility solutions, which may include, if requested by the USILA, access to QuikTrip Stores. In making determinations on novel and complex issues relating to ADA compliance at QuikTrip Stores, the USILA will consult, as needed, with counsel for the United States. IV. NON-DISCRIMINATION IN FUTURE QUIKTRIP FACILITIES 16. QuikTrip shall ensure that each facility designed, constructed, purchased, leased, or otherwise acquired by or on behalf of QuikTrip ("Future QuikTrip Stores") shall comply in all respects with the requirements of Title III of the ADA, the Title III Regulation, the ADA Standards, and this Consent Decree before a Future QuikTrip Store is opened for business. During the term of this Consent Decree, before opening any Future QuikTrip Store, QuikTrip shall obtain a Certification of ADA Compliance, using Exhibit B, from the ILA or a Certification of ADA Compliance, using Exhibit C, from either a Licensed Architect retained and paid by QuikTrip ("LA"), or a QuikTrip Construction/Project Page 8 of 73 Manager or equivalent ("CM"). Any LA or CM who issues a certification must be trained regarding the ADA and the procedures for certification of ADA compliance by either the ILA or the USILA. QuikTrip will maintain such certifications in its records and include copies of such certifications in its reports to the United States pursuant to Paragraph 37 of this Consent Decree. a. The ILA shall conduct pre-occupancy certifications of no fewer than 10% of Future QuikTrip Stores that open within three years after the Effective Date of this Consent Decree, using the ADA Certification Form attached as Exhibit B. QuikTrip estimates that it will open 150 Future QuikTrip Stores during that three year period. The ILA will certify compliance at any additional Future QuikTrip Stores using Exhibit B if, in his professional judgment, without prior approval by or consultation with QuikTrip, his participation in the certification process is required to ensure ADA compliance. b. At all Future QuikTrip Stores in which the ILA does not certify ADA compliance, a Certification of ADA Compliance shall be issued pre-occupancy by either an LA or CM using the form at Exhibit C. c. During the four months immediately following the Effective Date of this Consent Decree, Certifications of ADA Compliance will be issued no later than four months after the opening date for that Future QuikTrip Store. d. In some circumstances, QuikTrip may open Future QuikTrip Stores in two (2) phases. In those circumstances, there will be two (2) phases of pre-occupancy certifications: the convenience store opening pre-occupancy certification phase Page 9 of 73 and the fuel dispensers opening pre-occupancy certification phase. All requirements of this Consent Decree, except for the requirements for fuel dispensers and accessible routes to the accessible fuel dispensers shall be required for certification under the convenience store pre-occupancy certification phase. The remainder shall be required for certification under the fuel dispensers preoccupancy certification phase.1 V. ENSURING EQUAL ACCESS TO CUSTOMERS WITH DISABILITIES 17. It is QuikTrip's policy to provide prompt and courteous service to all customers, including customers with disabilities. Consistent with this policy, to ensure that individuals with disabilities have an equal opportunity to enjoy the goods, services, facilities, privileges, advantages, and accommodations of its facilities, QuikTrip shall take the following actions: a. Indoor and Outdoor Assistance. Beginning as of the Effective Date of this Consent Decree and continuing throughout its term, QuikTrip, upon request, shall provide prompt and courteous fueling and other types of assistance, to individuals with disabilities, free of charge, at all current and future QuikTrip Stores. A fuel dispenser is a machine at a fueling station that is used to pump gasoline, diesel, E85, or other types of fuel into vehicles. At QuikTrip Stores, fuel dispensers have two fueling positions, except at QuikTrip Travel Centers with diesel fuel dispensers that may have only one fueling position. A fuel dispenser can be a multi-product dispenser, commonly known as an MPD, or a single product dispenser. The term fuel dispenser used here refers to single-product dispensers and MPDs. For purposes of this Consent Decree, where the terms "fuel dispensers" or "fueling positions" are used, and the QuikTrip Store has more than one type of fuel dispenser, the requirements apply to fuel dispensers of each type and fueling positions at dispensers of each type. At a QuikTrip Store with a diesel-only fuel dispenser, only one diesel fueling position must be accessible. Page 10 of 73 1 Following are examples of the types of assistance that QuikTrip will provide: cleaning windshields; opening doors; assistance in locating, retrieving, and carrying merchandise; reading product labels and prices and providing wayfinding assistance to customers who are blind or have low vision; and assistance in operating equipment, including food and beverage service equipment, vending machines, and point-of-sale payment devices. b. Adoption, Distribution, Maintenance, and Enforcement of Policies. QuikTrip shall adopt, implement, maintain, and enforce the policies attached hereto as Exhibit D (QuikTrip Policy on Access, Service and Assistance for Customers with Disabilities) and Exhibit E (QuikTrip Policy Regarding Service Animals for People with Disabilities) beginning as of the Effective Date of this Consent Decree and continuing throughout its term. Within sixty (60) days after the Effective Date of this Consent Decree, QuikTrip shall distribute copies of these policies to the managers and assistant managers of all QuikTrip stores that are open to the public for business. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip shall require managers and assistant managers to share these policies with all current employees and thereafter, to share these policies with new employees before a new employee begins performing duties that involve contact with customers. It is QuikTrip's responsibility to ensure that each employee having contact with customers understands these policies, the actions required to comply with the policies, and the consequences of noncompliance. The policies distributed to managers, assistant managers, and employees shall be substantially Page 11 of 73 in the forms attached to this Consent Decree as Exhibits D and E. The policies may be supplemented by additional information or procedures to implement these policies. QuikTrip shall redistribute copies of these policies to managers and assistant managers, who will share these policies with employees, at least annually thereafter. Within thirty (30) days after the Effective Date of this Consent Decree, QuikTrip shall also post and maintain these policies on its website, in an accessible and conspicuous location (i.e., directly linked from the homepage of quiktrip.com) and format (i.e., HTML), where the policies can be readily found and reviewed by members of the public. c. Training. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip shall train all of its employees having contact with customers regarding the requirements of this Consent Decree and the ADA relating to nondiscrimination in the retail setting. The training shall cover the policies at Exhibits D and E and the following most common types of assistance that QuikTrip employees will provide to customers with disabilities, upon request, in a prompt and courteous manner, without any extra charge: fueling assistance; cleaning a windshield; opening doors; assisting in locating, retrieving, and carrying food, drinks, or merchandise; reading product labels and prices and providing wayfinding assistance to customers who are blind or have low vision; and assistance in operating equipment, including food and beverage service equipment, vending machines, and point-of-sale payment devices. The training also shall include the requirement to ensure effective communication (e.g., Page 12 of 73 accepting and communicating on relay calls and using pen and paper to communicate with people who are deaf, are hard of hearing, or have speech impairments), the requirement to make reasonable modifications in policies, practices, and procedures (e.g., accepting large print checks from people with low vision, making exceptions to "no pet" policies for people accompanied by service animals), and the requirement to maintain accessible features (e.g., removing snow and ice from accessible parking spaces and other outdoor accessible features). d. Training for New Employees. Throughout the term of this Consent Decree, the training described in Paragraph 17.c. shall be provided to all new employees before they begin performing duties involving customer contact. e. Refresher Training. The training described in Paragraph 17.c. shall be provided to each QuikTrip employee having customer contact at least once during each year throughout the term of this Consent Decree. f. Notification System for Outdoor Assistance. QuikTrip already has, and agrees to maintain in current QuikTrip Stores and Future QuikTrip Stores, a call button notification system that is available at each fueling position. This call button notification system is available for use by all customers, including customers with disabilities, who need outdoor assistance. Within one-hundred eighty (180) days after the Effective Date of this Consent Decree, QuikTrip shall test and if necessary modify or upgrade its call button notification system at each fueling position at each QuikTrip Store to ensure that each call button functions effectively in providing QuikTrip personnel inside the QuikTrip Store with a Page 13 of 73 notification that assistance is required outdoors and identifies the fueling position at which assistance is required. g. Notification System Signage. Each call button shall include appropriate signage indicating the policy of providing fueling and other assistance to individuals with disabilities, which shall be conspicuous and easily readable from within a vehicle. Additionally, the signage at each store shall have the store's phone number posted for individuals to make phone calls to request assistance in the event the notification system malfunctions. 28 C.F.R. 36.302(a); ADA Standards 4.30. Within sixty (60) days after the Effective Date of this Consent Decree, QuikTrip shall propose signage language to counsel for the United States for review and approval. After approval by the United States, signage shall be installed at each fueling position within sixty (60) days and thereafter maintained and refreshed, as necessary, so it remains readable by persons who are sitting in their vehicles at the associated fueling position. h. Maintenance of Accessible Features. Beginning as of the Effective Date of this Consent Decree and continuing throughout its term, QuikTrip shall undertake the following steps to ensure that QuikTrip Stores are maintained so they are accessible to individuals with disabilities: i. QuikTrip shall establish and implement a process of ensuring that its controls and operating mechanisms, systems, and procedures used for obtaining fueling and other assistance are maintained in good working Page 14 of 73 order and are tested on a schedule of not less than once each week per store. ii. QuikTrip shall establish and implement a process of ensuring that accessible parking spaces, accessible routes, curb ramps, and all other outdoor accessible elements at QuikTrip Stores are maintained in accessible condition, free of built-up snow, ice, debris, and standing water. i. Blocking Objects. Delivery trucks and other vehicles may not block or obstruct an accessible parking space, route, and/or curb ramp. ADA Standards 4.4.1, 4.7.8. QuikTrip Store personnel shall be trained to check the location of delivery trucks upon knowledge of delivery personnel arrival and to ensure that accessible parking, routes, and curb ramps are not blocked by delivery trucks before accepting a delivery. To maintain the accessibility of parking spaces reserved for persons with disabilities, QuikTrip will install signage at accessible parking spaces that makes clear that such spaces may not be used or blocked by delivery trucks/deliveries and provides the store phone number and an ADA Complaint phone number so that customers may complain about delivery trucks blocking the spaces. Such signage shall be installed so that it remains visible to individuals who are unable to leave their vehicles to approach the signage when a delivery truck is parked in the accessible parking space. j. Actions to Ensure Employee Compliance with Policies. QuikTrip shall take appropriate action, including disciplinary action, against any employee who fails Page 15 of 73 to comply with the requirements of Paragraph 17 of this Consent Decree after receiving training regarding those requirements. The action taken will be consistent with the action QuikTrip ordinarily takes for an employee's violation of a federal, state, or local law or important QuikTrip company policy. QuikTrip will maintain records regarding significant corrective actions taken pursuant to this provision of the Consent Decree and, in its reporting to the Department, shall include a description of such actions and the date of and reason why the action was taken but need not disclose the identity of an individual employee subjected to disciplinary action. 18. Accessibility Maintenance Checklist. Annually, at the same time that QuikTrip distributes the policies referenced in Paragraph 17.b., QuikTrip shall also distribute to each store manager an Accessibility Maintenance Checklist substantially in the form attached to this Consent Decree as Exhibit F. The manager at each QuikTrip Store shall complete the Checklist and return it to QuikTrip's General Counsel within sixty (60) days after the distribution date. QuikTrip shall provide copies of completed Checklists that its General Counsel has received during the preceding six months to the United States as part of the reporting required pursuant to this Consent Decree, together with a list of actions taken at each QuikTrip Store in response to deficiencies identified through the completed Checklists. 19. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip shall obtain and implement a toll-free telephone number ("ADA Comment Line") that is used solely to receive comments and complaints from customers and members of the public Page 16 of 73 relating to QuikTrip's service and facilities for individuals with disabilities ("ADA-related Complaints"). This ADA Comment Line will be answered by one or more employees who are trained regarding the requirements of Title III of the ADA, the terms of this Consent Decree, the use of relay services, and communication with individuals who are deaf, are hard of hearing, or have speech impairments. This telephone number will be the same number that is posted on accessible parking signs to address complaints of delivery trucks/deliveries blocking accessible parking, as referenced in Paragraph 17.i. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip will also post this telephone number on its website below the link to its website accessibility policy. 20. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip shall post and maintain at each QuikTrip facility open to the public for business at any time during the term of this Consent Decree a sign or decal containing the toll-free telephone number of the ADA Comment Line and including the substance of the text contained in Exhibit G to this Consent Decree. The sign or decal shall be printed in bold, easily readable print on a contrasting background, shall be at least 9 inches tall by 12 inches wide, and shall be posted in a conspicuous location and maintained and refreshed, as necessary, so that it can be easily observed and read by a customer with a disability who is outside a QuikTrip Store and unable to leave his or her vehicle. QuikTrip also shall post, maintain, and refresh, as necessary, such a sign or decal at each Future QuikTrip Store that opens for business at any time during the term of this Consent Decree before the Store opens for business. Page 17 of 73 21. QuikTrip shall be responsible for receiving and investigating all ADA Title III-related complaints by customers received at its ADA Comment Line or otherwise directed to its corporate offices. Within ninety (90) days after the Effective Date of this Consent Decree, QuikTrip shall post the toll-free telephone number for its ADA Comment Line on its internet website (within the domain http://quiktrip.com/) in a website location that is directly linked to its homepage and easy for customers with disabilities to find. Consistent with the requirements of Title III of the ADA, the toll-free number shall be posted in an accessible format (e.g., HTML) and accessible location. Within sixty (60) days after the Effective Date of this Consent Decree, QuikTrip shall designate and train one or more of its headquarters employees (ADA Coordinator(s)) who will be responsible for receiving and investigating ADA Title III-related complaints so that such employee(s) are knowledgeable regarding the requirements of Title III applicable to QuikTrip, including effective communication, reasonable modifications, the maintenance of accessible features, architectural requirements, and the terms of this Consent Decree. 22. Throughout the term of this Consent Decree, QuikTrip will receive and respond to any disability-related complaints about facilities or services by a customer ("ADA-related Complaint") directed to its ADA Comment Line or otherwise directed to its corporate offices as follows: (A) within five (5) business days after an ADA-related Complaint is received, QuikTrip will commence an investigation, including contacting the complainant, if necessary, to find out the allegations of the complaint and will investigate the complaint with the appropriate QuikTrip staff where the complaint originated; and (B) QuikTrip will complete its investigation and respond to the complainant within thirty (30) days after the Page 18 of 73 complaint is received, including discussing with the complainant, where appropriate, possible resolutions, including training or corrective actions for QuikTrip staff and relief for the complainant. QuikTrip will maintain written records of ADA-related Complaints by customers, its investigations, and its responses to those complaints throughout the life of this Consent Decree. Copies of such records will be provided to the United States pursuant to the reporting requirements of Paragraph 37 of this Consent Decree, and at any other time upon request. 23. ADA Coordinator(s). The ADA Coordinator(s) designated pursuant to Paragraph 21 of this Consent Decree shall coordinate QuikTrip's effort to comply with and carry out its responsibilities under the ADA and this Consent Decree, including the investigation of ADA-related Complaints, the coordination of corrective actions and relief for complainants to resolve ADA-related Complaints, and maintaining records of ADArelated Complaints, investigations, and actions taken to comply with this Consent Decree. QuikTrip shall make available on its website, in an accessible and conspicuous location (i.e., directly linked from the homepage of quiktrip.com) and format (i.e., HTML), the name(s), office address(es), telephone number(s), and email addresses of the ADA Coordinator(s). 24. 25. In addition to operating stores, QuikTrip operates a website. Website Accessibility. QuikTrip has already initiated a program to improve the accessibility of its website. In connection with this initiative, within one (1) month after the Effective Date of this Consent Decree, QuikTrip shall adopt, and thereafter maintain, a policy of nondiscrimination on the basis of disability in providing effective Page 19 of 73 communication via its website. The policy provided as Exhibit H meets the requirements of this provision. Before adopting a policy that is substantially different from the policy provided as Exhibit H, QuikTrip shall submit such policy to the Department for review and approval and shall incorporate comments provided by the Department before adopting the policy. a. Within two (2) months after the Effective Date of this Consent Decree, QuikTrip will distribute the policy to all persons employees and contractors who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by QuikTrip ("Internet Personnel"). Within three (3) months of the Effective Date of this Consent Decree, QuikTrip will provide training to Internet Personnel on website accessibility, including the requirements set out in the policy at Exhibit H. b. Within three (3) months after the Effective Date of this Consent Decree, QuikTrip will undertake a Website Accessibility Assessment to evaluate the delivery of content on its website to ensure inclusion and integration of people with disabilities, including individuals who use screen readers or voice interactive software, who use text magnification programs, who require the ability to adjust font size and/or color to view webpages, who require audio description to access video content, and who require captions to access audio materials. The evaluation will take into consideration the following issues, but will also evaluate the website according to generally accepted standards for website accessibility, such as the Page 20 of 73 Standards promulgated pursuant to Section 508 of the Rehabilitation Act of 1973, as amended: i. For every image posted, including photographs, charts, color-coded information, or other graphics, QuikTrip will add a text equivalent to the image, to allow persons with disabilities who use screen readers or Braille displays to understand the basic content of the image or graphical element. ii. All documents will be posted in a text based format that is compatible with assistive technology, and not as images that do not have text of the file's content in a format accessible to a screen reader and Braille display iii. QuikTrip's website will allow Web browsers and other assistive technologies to manipulate colors and font settings on its webpages for individuals with low vision or color blindness to access the content. iv. Videos and other multimedia will incorporate features to make them accessible to individuals with disabilities, including audio descriptions of images (including changes in setting, gestures, and other details) to make videos accessible to persons who are blind or have low vision, among others, and the provision of text captions synchronized with the video image to make video and audio tracks accessible to people who are deaf or hard of hearing. v. Where appropriate, QuikTrip will also include the following considerations in developing webpages: Page 21 of 73 (1) The inclusion of a "skip navigation" link at the top of webpages that allows people who use screen readers to ignore navigation links and skip directly to webpage content; (2) Minimizing the use of blinking, flashing, or other distracting features; (3) If included, allowing moving, blinking, or auto-updating objects of pages to be paused or stopped; (4) Online forms will include descriptive tags that provide persons with disabilities the information they need to complete and submit the forms; (5) If sounds automatically play, visual notification and transcripts will also be provided; (6) For pages that are auto-refreshing or that require a timed-response, providing a second, static copy of the page; (7) Titles, context, and other heading structures will be provided to help users navigate complex pages or elements (such as webpages that use frames). c. Within three (3) months after the Effective Date of this Consent Decree, QuikTrip shall provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page in a conspicuous and accessible location. In that same location, QuikTrip will provide a notice soliciting feedback from visitors to QuikTrip's website on how Page 22 of 73 accessibility can be improved at QuikTrip and on QuikTrip's website and shall provide an accessible means of providing such information. d. Within four (4) months after the Effective Date of this Consent Decree, QuikTrip shall enlist people with a variety of disabilities to test its pages for accessibility. e. Within four (4) months after the Effective Date of this Consent Decree, QuikTrip shall develop a Website Accessibility Action Plan to address deficiencies in effective communication of content identified in the Website Accessibility Assessment, including the feedback provided by visitors to its website and from people with disabilities enlisted to test website accessibility, and the appropriate provision of auxiliary aids and services to achieve effective communication on its website. f. Within five (5) months after the Effective Date of this Consent Decree, QuikTrip shall implement the Website Accessibility Action Plan with appropriate auxiliary aids and services to achieve effective communication. g. During the second year and subsequent years of the term of this Consent Decree, QuikTrip shall perform the steps outlined in Paragraphs 25.a. through 25.f. within a comparable period of time. VI. COMPENSATORY DAMAGES TO COMPLAINANTS AND OTHER AGGRIEVED PERSONS 26. Within ten (10) business days after the Effective Date of this Consent Decree, QuikTrip shall deposit the sum of One Million Five Hundred Thousand Dollars ($1,500,000) in an interest-bearing account for the purpose of compensating Complainants and other aggrieved persons who may have been harmed by noncompliance with the ADA at one or Page 23 of 73 more QuikTrip Stores and who may be identified through the procedures set forth in this Consent Decree. Also within ten (10) business days after the Effective Date of this Consent Decree, QuikTrip shall submit proof to the United States that the account has been established and the funds deposited. QuikTrip shall bear all costs of establishing the account, maintaining it, and issuing checks from it. Copies of account statements shall be promptly provided to the United States. 27. At least once each week during the ninety (90) days following the Effective Date of this Consent Decree, including on at least five Sundays, QuikTrip shall arrange and publish a Notice to Potential Victims of Disability Discrimination ("Notice") as follows: a. Each Notice shall appear in the news sections of major newspapers in each market where QuikTrip does business and shall be at least an eighth (1/8) of a page in size; b. Each Notice shall set forth a summary of the legal and evidentiary contentions of the United States and a general statement of the relief provided under this Consent Decree. Each Notice shall also contain a statement that the United States seeks information from any persons who claim to have been subjected to disability discrimination at a QuikTrip facility in connection with access to any facilities or services. Each Notice shall invite such persons to contact counsel for the United States concerning their complaints within ninety (90) days of the publication of the Notice. The text of this Notice shall be as set forth in Exhibit I; and c. QuikTrip shall provide a copy of the newspaper containing each such Notice to counsel for the United States within three (3) days after publication of the Notice. Page 24 of 73 QuikTrip shall notify counsel for the United States in writing of the date on which the last such notice was published within five (5) days after its publication. 28. Within five (5) business days after the Effective Date of this Consent Decree QuikTrip shall publish the Notice in an accessible format (i.e., HTML) and in a prominent location on its website (quiktrip.com). QuikTrip shall maintain the Notice on its website for a period of ninety (90) days following publication on its website. The intent of this paragraph is to enable individuals with disabilities to readily locate the Notice on QuikTrip's website. 29. Within thirty (30) days after the date of entry of this Consent Decree, QuikTrip shall produce or permit representatives of the United States to review any complaints about access to any of its facilities or services that it has received from or on behalf of an individual alleged to have an impairment. 30. The United States may, in its sole discretion, use other methods to identify other aggrieved persons, and this Consent Decree shall not be construed to limit the United States' right to do so. 31. Allegedly aggrieved persons shall have until ninety (90) days after the date of the last published Notice within which to contact the United States to assert any claims in connection with this Consent Decree. 32. The United States shall determine which persons, who have timely contacted the United States, have been harmed by ADA violations at a QuikTrip facility and shall determine in its sole discretion an appropriate amount of damages to be awarded to each such person, provided that: Page 25 of 73 a. No person shall be paid pursuant to this Section of the Consent Decree until the United States has received an executed "Waiver and Release of Claims" form from that person that is substantially similar to the document attached to this Consent Decree as Exhibit J. A copy of the executed "Waiver and Release of Claims" forms shall be provided to QuikTrip by the United States. b. The total amount to be paid by QuikTrip pursuant to this Section of the Consent Decree shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000) plus any interest accrued in the account established under Paragraph 26. 33. The United States shall notify QuikTrip in writing in one or more notifications of its determinations of the amount to be paid to each aggrieved person. Within thirty (30) days after receiving each such written notification, QuikTrip shall deliver to counsel for the United States checks to the aggrieved persons payable as directed in the written notification. 34. In the event that the United States distributes a total amount of compensatory damages pursuant to this Section of the Consent Decree that is less than the total amount of funds in the account established pursuant to Paragraph 26, including accrued interest, the remaining funds shall be paid to non-profit organizations serving the interests of individuals with disabilities designated by the United States and acceptable to QuikTrip. These organizations promote the interests of persons with disabilities in areas of the country where QuikTrip does business. The United States will provide QuikTrip with a notice regarding the amount of funds to be distributed to each of these entities. Within thirty (30) days after the receipt of such notice from the United States, QuikTrip will Page 26 of 73 deliver by common carrier Federal Express, delivery prepaid, a check made payable to the order of each such entity in the amount designated by the United States. QuikTrip shall simultaneously send a copy of the check and any accompanying letter to counsel for the United States via common carrier Federal Express, delivery prepaid. 35. The United States will notify QuikTrip regarding ADA violations at QuikTrip Stores identified during its review of claims in circumstances where QuikTrip needs to take additional action to remedy the ADA violations beyond what is otherwise required by the Consent Decree. VII. CIVIL PENALTY 36. The ADA authorizes the Attorney General to seek, and the Court to award, civil penalties of up to $55,000 for a first violation of Title III of the ADA and up to $110,000 for each subsequent violation. 42 U.S.C. 12188(b)(2)(C) and (b)(3); 28 C.F.R. 36.504(a)(3) and (b). The United States believes the imposition of a civil penalty in this case is warranted to vindicate the public interest. QuikTrip shall pay a civil penalty to the United States in the amount of Fifty-Five Thousand Dollars ($55,000). QuikTrip will deliver the check or money order made payable to the Treasury of the United States to counsel for the United States by common carrier Federal Express, delivery prepaid within thirty (30) days after the Effective Date of this Consent Decree. VIII. REPORTING, MONITORING, ENFORCEMENT, AND OTHER MISCELLANEOUS PROVISIONS 37. Beginning six (6) months after the Effective Date of this Consent Decree and every six (6) months thereafter throughout the term of this Consent Decree, QuikTrip shall submit to counsel for the United States a written report detailing the following information for the Page 27 of 73 six month period preceding the report: actions taken by QuikTrip to comply with this Consent Decree, QuikTrip facilities opened or re-opened for business, QuikTrip facilities constructed, and a description of each complaint about the accessibility of a QuikTrip facility or services by one or more individuals with disabilities and actions taken to address each such complaint. The report will also provide a copy of certifications received pursuant to Paragraph 14 through 16 of this Consent Decree and a copy of any other documents or information required by this Consent Decree. 38. The Department may review compliance with this Consent Decree at any time and may file a motion to enforce this Consent Decree if it believes that the Consent Decree, or any requirement thereof, has been violated. The Department may conduct an on-site review of any QuikTrip facility, review any QuikTrip records related to actions required by the Consent Decree, and interview any QuikTrip employees or contractors for purposes of reviewing compliance with this Consent Decree and ADA requirements, including the requirements of the ADA Standards. If the Department identifies any noncompliance with the Consent Decree or the ADA Standards, QuikTrip will be required to correct any noncompliance within sixty (60) days of receipt of notice of noncompliance from the Department. If QuikTrip has not corrected the noncompliance within sixty (60) days after the receipt of notice, the violation will be considered a subsequent violation and require payment of a subsequent violation civil penalty in the amount of One Hundred Ten Thousand Dollars ($110,000). The Department will provide written notice to QuikTrip of the location of any facility where it will review compliance at least ten (10) business days before doing so. Similarly, the Department will provide written notice to QuikTrip of any Page 28 of 73 records that it wishes to inspect or personnel whom it wishes to interview at least ten (10) business days before doing so. 39. Failure by the United States to enforce this entire Consent Decree or any of its provisions or deadlines shall not be construed as a waiver of the right of the United States to enforce other deadlines and provisions of this Consent Decree. 40. All materials sent to the United States pursuant to this Consent Decree shall be sent to the following address by common carrier Federal Express, delivery prepaid: Disability Rights Section, Attn: William Lynch, Trial Attorney, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Washington, D.C. 20005. The cover letter shall include a subject line referencing QuikTrip and DJ# 202-4550. 41. The Effective Date of this Consent Decree ("Effective Date") is the date of entry by the Court after the signatures of all Parties have been obtained. 42. This Consent Decree is limited to resolving claims under Title III of the ADA related to the facts specifically set forth in Paragraph 3 above involving architectural noncompliance with the ADA Standards in facilities designed, constructed, or altered by QuikTrip; the failure to remove barriers to accessibility where readily achievable to do so; the failure to maintain accessible features; and the failure to implement reasonable modifications of policies, practices, and procedures necessary to afford equal access to goods, services, facilities, privileges, advantages, and accommodations to individuals with disabilities. Nothing in this Consent Decree relates to Title I of the ADA or affects QuikTrip's obligations to comply with any oth

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