DEVAL L. PATRICK Assistant Attorney General Civil Rights Division U.S. Department of Justice JOHN L. WODATCH Chief, Public Access Section Civil Rights Division U.S. Department of Justice JOAN A. MAGAGNA THOMAS M. CONTOIS Public Access Section Civil Rights Division U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-6738 Telephone: (202) 514-6014 ELLIOT ENOKI United States Attorney District of Hawaii MICHAEL CHUN (Stamp) Filed 6/16/94 Chief, Civil Division Assistant U.S. Attorney Room 6100, PJKK Federal Building FILED 300 Ala Moana Blvd., Box 50183 6/16/94 Honolulu, Hawaii 96850 Telephone: (808) 541-2850 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) UNITED STATES OF AMERICA, ) CIVIL NO. 94-0047Z ACK ) Plaintiff, ) ) ) COMPLAINT; SUMMONS vs. ) ) ) PLEASANT TRAVEL SERVICE, INC. ) and HAWAIIAN HOTELS AND RESORTS,) INC., ) ) Defendants. ) 01-05034 COMPLAINT The United States of America alleges: 1. This action is brought by the United States pursuant to the enforcement provision of title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.  12188(b)(1)(B), against Pleasant Travel Service, Inc., and Hawaiian Hotels and Resorts, Inc. 2. Jurisdiction. This court has jurisdiction over this action under 42 U.S.C.  12188(b)(1)(B) and 28 U.S.C.  1331 and 1345. 3. Defendant Pleasant Travel Service, Inc. ("Pleasant Travel"), is a California corporation with its principal place of business at 2404 Townsgate Road, Westlake Village, California 91361. 4. Defendant Hawaiian Hotels and Resorts, Inc. ("Hawaiian Hotels"), is a California corporation with its principal place of business at 2404 Townsgate Road, Westlake Village, California 91361. Hawaiian Hotels is a wholly owned subsidiary of Pleasant Travel. 5. Venue is proper in this judicial district. Both defendants do business in the state of Hawaii, and all of the acts of discrimination alleged herein occurred in the state of Hawaii. 6. The Royal Lahaina Resort, 2780 Kekaa Drive, Lahaina, Maui, Hawaii ("the Resort"), is a privately owned and operated Complaint Page 2 01-05035 facility whose operations affect commerce; it is a place of lodging with approximately 540 rooms for rent or hire. 7. Defendant Pleasant Travel owns the Resort, and therefore is a public accommodation within the meaning of title III of the ADA. 42 U.S.C.  12181(7)(A); 28 C.F.R.  36.104. 8. Defendant Hawaiian Hotels operates the Resort, and therefore is a public accommodation within the meaning of title III of the ADA. 42 U.S.C.  12181(7)(A); 28 C.F.R.  36.104. 9. Numerous architectural barriers prevent or restrict access to the Resort by individuals with disabilities, including individuals who use wheelchairs, in that several features, elements, and spaces of the Resort are not accessible to or usable by individuals with disabilities, as specified in the Department of Justice's title III implementing regulation, 28 C.F.R. Part 36 ("the regulation"). See 28 C.F.R.  36.406 and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). Barriers to access at the Resort include, but are not necessarily limited to: a. Routes to and from several of the Resort's buildings and facilities that are not accessible to or usable by individuals with disabilities, including individuals who use wheelchairs. The inaccessible routes include routes to and from: the parking lot, the main lobby area in the Lahaina Kai tower, the guest rooms, cottages, and suites, the outdoor seating area at the Royal Ocean Terrace restaurant, the Luau Grounds, the Complaint Page 3 01-05036 Alii Room and the Alii Terrace, the Beachcombers restaurant, the guest laundromat, the shopping arcade, the swimming pools, and the tennis courts and pro shop. b. Guest rooms, cottages, and suites that are not accessible to or usable by individuals with disabilities, including individuals who use wheelchairs. c. Restrooms in the public areas of the Resort that are not accessible to or usable by individuals with disabilities, including individuals who use wheelchairs. The inaccessible restrooms include the restrooms in the main lobby, the restrooms near the largest swimming pool, the restrooms in the Alii Room, the restrooms at the shopping arcade, the restrooms in the Beachcombers restaurant, the restroom in the guest laundromat, and the restrooms and locker rooms which serve the tennis courts. d. A conference and banquet room, known as the Alii Room, which has several floor levels and an outdoor terrace with multiple levels, that is not accessible to or usable by individuals with disabilities, including individuals who use wheelchairs. e. Fixed seating and a stage at the Resort's Luau Grounds that are not accessible to or usable by individuals with disabilities, including individuals who use wheelchairs. Complaint Page 4 01-05037 10. The defendants have not removed the architectural barriers to access identified in paragraph 9. 11. Upon information and belief, it would be readily achievable for the defendants to remove some or all of the architectural barriers to access identified in paragraph 9. 12. By failing to remove architectural barriers to access where it is readily achievable to do so, the defendants have discriminated against individuals with disabilities in violation of sections 302(a) and 302(b)(2)(A)(iv) of the ADA, 42 U.S.C.  12182(a) and 12182(b)(2)(A)(iv), and in violation of section 36.304 of the regulation, 28 C.F.R. Part 36. 13. On at least three occasions since January 26, 1992, the defendants have undertaken renovations, remodeling, or other alterations to the Resort. These alterations include, but are not necessarily limited to: a. Beginning in July 1992, constructing a covered serving area and paving a portion of the seating area at the Resort's Luau Grounds; b. Beginning in June 1993, constructing a free-standing hamburger grill and sandwich shop, known as the Made in the Shade Pool Grill (the "Pool Grill"), adjacent to the Resort's main swimming pool; and c. Beginning in June 1993, renovating and remodeling a retail shop area near the Resort's main lobby, including a complete make-over of the shop for the sale of Resort logo items. Complaint Page 5 01-05038 14. Each of the instances of construction, remodeling, or renovation identified in paragraph 13 was an alteration to the Resort or a portion of it that affects or could affect the usability of the facility, or the usability of the portion of the facility being altered, within the meaning of title III of the ADA and the title III regulation, and each of these alterations affects or could affect the usability of or access to an area of the Resort containing a primary function. See 42 U.S.C.  12183(a)(2) and 28 C.F.R.  36.402, 36.403. 15. In making the alterations identified in paragraph 13, the defendants failed to provide an accessible path of travel to the altered areas, and failed to make the restrooms which serve the altered areas readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in violation of 42 U.S.C.  12183(a)(2), 28 C.F.R.  36.403, 36.406, and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A,  4.1.6(2) ("the Standards"). 16. The failure of the defendants to remove architectural barriers to access at the Resort, and to make the alterations to the Resort in the manner required by title III of the ADA and the regulation, constitutes a pattern or practice of discrimination within the meaning of 42 U.S.C.  12188(b)(1)(B)(i) and 28 C.F.R.  36.503(a), and unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b). Complaint Page 6 01-05039 17. Timothy Simmons has multiple sclerosis and is missing one leg at the hip; he uses a wheelchair for mobility. He is an individual with a disability within the meaning of the ADA. 42 U.S.C.  12102(2); 28 C.F.R.  36.104. 18. In December 1992, Mr. Simmons attended a luau at the Resort. Due to inclement weather, the luau was held indoors, in the Resort's Alii Room. Mr. Simmons was unable to use the men's restroom in the Alii Room, and was forced to use a portable urinal which he keeps in his car. Mr. Simmons was distressed and inconvenienced by his experience at the Resort. 19. Upon information and belief, in addition to Mr. Simmons, other individuals may have been injured by the failure of the defendants to remove architectural barriers to access at the Resort, or by the defendants' failures to make alterations as required by title III of the ADA and the title III regulation. Complaint Page 7 01-05040 PRAYER FOR RELIEF The United States prays that the Court: A. Declare that the defendants have violated title III of the Americans with Disabilities Act, 42 U.S.C.  12181 through 12189, and the regulations thereunder, 28 C.F.R. Part 36, by 1) failing to remove architectural barriers to access for individuals with disabilities at the Royal Lahaina Resort, where such removal is readily achievable, and 2) failing to undertake alterations to the Royal Lahaina Resort in such a manner that to the maximum extent feasible, there is an accessible path of travel to the altered portions of the Resort, and the restrooms, telephones, and drinking fountains serving the altered areas are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; B. Order the defendants to remove architectural barriers to access at the Royal Lahaina Resort, to the extent that it is readily achievable to do so, including but not necessarily limited to: 1) Providing accessible routes to and from the following spaces, features, and elements of the Resort: the parking lot, the main lobby (in the Lahaina Kai tower), the guest rooms and suites, the outdoor seating area at the Royal Ocean Terrace restaurant, the Luau Grounds, the conference and banquet rooms, the Beachcombers restaurant, the guest laundromat, the shopping arcade, the swimming pools, and the tennis courts and pro shop, Complaint Page 8 01-05041 in compliance with the provisions of the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"), governing accessible routes; 2) Providing guest rooms, cottages, and suites that are accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards governing accessible guest units, sleeping rooms, and suites; 3) Providing restrooms in the public areas of the Resort that are accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards governing accessible toilet rooms; 4) Making the Alii Room and its outdoor terrace accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards governing accessible routes and accessible toilet rooms; and 5) Providing seating at the Resort's Luau Grounds, and a route to the stage at the Luau Grounds, that are accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards for accessible seating and accessible routes. Complaint Page 9 01-05042 C. Order the defendants to undertake such construction, reconstruction, repairs, or other structural changes as may be necessary to provide paths of travel to the areas of the Resort which they have altered since January 26, 1992, which are accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, and to make the restrooms serving the altered areas accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as required by title III of the ADA, the title III regulation, and the Standards; D. With respect to any alterations they may undertake in the future, order the defendants to make those alterations in full compliance with the requirements of section 303(a) of title III of the ADA, 42 U.S.C.  12183(a), sections 36.403 and 36.406 of the title III regulation, 28 C.F.R.  36.403 and 36.406, and the Standards; E. Assess a civil penalty against each defendant in an amount authorized by 42 U.S.C.  12188(b)(2)(C), to vindicate the public interest; F. Award compensatory damages to all individuals injured by the illegal acts of discrimination committed by the defendants; and Complaint Page 10 01-05043 G. Order such other appropriate relief as the interests of justice may require. JANET RENO Attorney General (Signature) By:_______________________ DEVAL L. PATRICK Assistant Attorney General Civil Rights Division (Signature) __________________________ JOHN L. WODATCH, Chief Public Access Section Civil Rights Division (Signature) __________________________ JOAN A. MAGAGNA THOMAS M. CONTOIS Attorneys Public Access Section Civil Rights Division U.S. Department of Justice ELLIOT ENOKI United States Attorney District of Hawaii MICHAEL CHUN Chief, Civil Division Assistant U.S. Attorney Complaint Page 11 01-05044