FOR IMMEDIATE RELEASE CR TUESDAY, MARCH 22, 1994 (202) 616-2765 JUSTICE DEPARTMENT SETTLEMENT ENSURES ACCESS TO "WORLD'S LARGEST" INDOOR RAINFOREST WASHINGTON, D.C. -- People with disabilities will have an easier time visiting the "world's largest" indoor rainforest in Omaha, Nebraska under an agreement reached today with the Justice Department. The settlement resolves a complaint filed with the Justice Department alleging that the Omaha Zoological Society failed to make its facilities accessible to persons with disabilities in violation of the Americans with Disabilities Act (ADA). The Omaha Zoological Society is a private non-profit corporation that operates and manages the Henry Doorly Zoo, Lied Jungle, and Treetops Restaurant, a 400-seat restaurant that overlooks the rainforest. Under Title III of the ADA, existing places of public accommodation, like the Doorly Zoo, Lied Jungle and Treetops Restaurant, must remove architectural barriers where it is readily achievable to do so, and must provide auxiliary aids and services unless an undue burden or "fundamental alteration" would result. (MORE) 01-06320 - 2 - The Jungle, which opened in April 1992, is designed to replicate the experience of travelling through the rainforests of Asia, Africa, and America. The Lied Jungle features a narrow, winding jungle trail, steep cliffs, a swinging bridge, caves, waterfalls, and dense tropical vegetation. Under the agreement, the Society agreed to: * install a wheelchair lift in the Treetops Restaurant; * continue to make electric scooters available to persons with mobility impairments so that they may have access to the Jungle floor path; * remove barriers on the Jungle's path; * make modifications to restrooms; and, * provide a variety of auxiliary aids and services, including audiotape recordings of the Lied Jungle Trail Guide and of information about the rainforest contained on signs located throughout the Jungle, and ensure that staff are available to serve upon request as guides to visitors with visual impairments. Under today's agreement, the accessibility improvements must be implemented within 90 days. "People with disabilities have too long been denied access to this country's rich educational resources and recreational facilities," said Acting Assistant Attorney General for Civil Rights James P. Turner. "Today's agreement, which resulted from cooperation between the federal government and the private sector, will open new vistas and experiences for persons with disabilities." The Justice Department determined that making certain areas of the rainforest fully accessible was not readily achievable, (MORE) 01-06321 - 3 - because the extensive changes would close the facility for at least a year and cost nearly $5 million dollars, according to the Society. # # # 94-149 01-06322 SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE OMAHA ZOOLOGICAL SOCIETY The parties to this Settlement Agreement are the United States Department of Justice ("United States") and the Omaha Zoological Society ("Society"), a private non-profit corporation that operates and manages the Henry Doorly Zoo, Lied Jungle, and Treetops Restaurant. In May 1992 the United States received an administrative complaint alleging violations of title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12181- 12189, and the Department of Justice implementing regulation, 28 C.F.R. pt. 36 at the Zoo, the Lied Jungle, and Treetops Restaurant. Specifically, the complaint alleged failure to remove architectural barriers to access by individuals with disabilities in existing facilities where removal of barriers is readily achievable, and failure to provide auxiliary aids and services where provision of these would not result in fundamental alteration or undue burden. 42 U.S.C. S 12182 and 28 C.F.R. SS 36.303-.304. II. Factual Background and Procedural History The Omaha Zoological Society is a non-profit corporation formed under the laws of the State of Nebraska and incorporated on June 7, 1952. The Articles of Incorporation provide that the corporation was formed to acquire by purchase or otherwise, establish, operate, maintain and control zoological gardens and collections, specimens of fish, fowls, insects, reptiles, birds, mammals and any other form of animals. 01-06323 - 2 - To promote the study of and an interest in zoology and natural history. To contribute to the education, recreation and pleasure of the general public, in particular the citizens of the City of Omaha. In addition, the Society was established "to maintain, feed, shelter, and display to the general public, fish, fowl, reptiles, birds, mammals and any other animals which may be owned or may belong" to the Society. The Society entered into an agreement with the City of Omaha on September 8, 1964, which describes the Society as a nonprofit corporation, created and existing pursuant to the statutes of the State of Nebraska, empowered, inter alia, to promote the maintenance and development of zoological gardens; for the collection, care, and the exhibition of live animals, fowl, birds, reptiles and other species of wildlife and to afford therefrom entertainment, recreation and instruction for the use and benefit of the public; and to acquire and own, operate, and maintain property for the purposes of "Society"; and to build, operate and maintain habitats, shelters and places of confinement for such exhibits. Under the agreement, the City granted to the Society "permission to plan, establish, reestablish, manage, operate, develop and maintain its zoological gardens, exhibits and such other allied and related functions, research and planning...." The agreement with the City also provided that "the Society shall have no power or authority to bind the City by, or with any contract or agreement, or to impose any liability upon the City, and all acts and contracts of Society shall be in its own name and not of the name of the City," and that no employee or agent of the Society "shall in any way be deemed to be the employee or agent of the City of Omaha." The agreement provided that two City employees "shall be an ex officio member of the Society's 01-06324 - 3 - Board of Directors ..." and "shall serve as a nonvoting member in an advisory capacity only." The agreement was amended in 1983, 1985, 1988 and 1990 without changing any of the above provisions. Located in Omaha, Nebraska, the Zoo includes as an attraction within its grounds the "world's largest indoor rainforest," the Lied Jungle. The Lied Jungle is designed to replicate the experience of travelling through the rainforests of Asia, Africa, and America. As such, the Jungle features a narrow, winding jungle trail, steep cliffs, a swinging bridge, dark caves, roaring waterfalls, and dense tropical vegetation, including large hanging vines. Adjacent to and sharing a glass wall with the Lied Jungle is Durham's Treetops Restaurant, a 400- seat buffet style restaurant. Both facilities opened to the public in April 1992. Both the Jungle and Treetops Restaurant were built exclusively with donations from private citizens and charitable foundations. Operating expenses for the Jungle are paid for with interest income from a privately donated endowment, revenue from Treetops Restaurant, and rental of the facilities for private functions at the Jungle and Treetops Restaurant. As stated, this Agreement results from an administrative complaint filed with the United States Department of Justice in May 1992 and alleging violations of title III of the ADA at the Zoo, the Lied Jungle, and Treetops Restaurant. That complaint alleged the following: 01-06325 - 4 - Henry Doorly Zoo * Pathway slopes of Simmons Plaza, a small brick area near the Zoo entrance featuring a bridge over a small waterfall and pond, are steeper than allowed by the ADA Standards for Accessible Design ("Standards"). Lied Jungle * Paths on the lower level of the Lied Jungle are inaccessible, because persons using standard wheelchairs cannot traverse the soft gravel without aid, and there are sharp drop-off points and sharp turns with inadequate turning space; * Two look-out points and a swinging bridge are not accessible to persons using wheelchairs; * Access to the Lied Jungle's restrooms is impeded by a low-hanging rope, and the restrooms feature uncovered pipes, non-levered faucets, and an inaccessible baby- changing table; * Protruding rocks, hanging vines, and lack of guide rails or guide ropes throughout the Lied Jungle pose dangers to persons with visual impairments; * Jungle exhibit signage is not provided in braille. Treetops Restaurant * Steps in the Treetops Restaurant bar access to the lower level of the restaurant. In response to the complaint, the Department of Justice conducted a site visit. Only those accessibility issues 01-06326 - 5 - specifically raised in the complaint were investigated. Because the Zoo, the Lied Jungle, and Treetops Restaurant were built prior to the effective date of the ADA's standards for new construction, the facilities were not reviewed for compliance with new construction standards. Instead, the facilities were investigated for compliance with the Act's and the regulation's requirements concerning (1) barrier removal in existing facilities and (2) auxiliary aids. Pursuant to the investigation, the United States determined that some of the accessibility problems raised in the complaint did not constitute violations of the ADA.1 In response to other problems raised in the complaint, following discussions with the United States Department of Justice, the Omaha Zoological Society has voluntarily agreed to implement a number of improvements to accessibility. The parties agree that this Settlement Agreement is not an admission of liability and should not be construed as an ______________________________ 1 For example, the complaint submitted to the United States alleged that Simmons Plaza contained pathways with slopes in excess of ADA Standards. Simmons Plaza, a small brick area near the zoo entrance, features a bridge over a small waterfall and pond, garden areas, seating, trees, and granite boulders with bronze recognition plaques. The majority of the plaza area is fully accessible to persons using wheelchairs. To reduce the slope to the bridge and small upper area to that provided by the ADA Standards for Accessible Design would require removal and reinstallation of the brick work and footbridge and reconstruction of the surroundings, at a cost estimated in excess of $75,000.00. Based on this information, the United States determined that grading the slope of the small portions of the Plaza whose slopes exceeded the maximum permitted under the Standards did not appear to be readily achievable as defined in section 36.304 of the title III regulation. 01-06327 - 6 - admission by the Society of any liability. The Society has agreed to take the steps outlined in this Agreement to ensure access to the Lied Jungle and Treetops Restaurant by persons with disabilities. III. Agreement ACCORDINGLY, IT IS HEREBY AGREED THAT: 1. The Omaha Zoological Society is a private entity that operates several places of public accommodation located in Omaha, Nebraska, including the Henry Doorly Zoo, Lied Jungle, and Treetops Restaurant; and the Society is a public accommodation as defined by title III of the ADA, 42 U.S.C. S 12181, and 28 C.F.R. S 36.104. All the facilities described in this Agreement were constructed prior to the effective date of the ADA's provisions for new construction. The physical accessibility problems identified below are therefore subject to the "readily achievable" standard for barrier removal under 42 U.S.C. S 12182(b)(2)(A)(iv) and 28 C.F.R. S 36.304. 2. This Settlement Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of the Omaha Zoological Society and the United States Department of Justice. Lied Jungle 3. Jungle Floor Path, Swinging Bridge, and Look-Out Points (A) Portions of the Jungle floor path are too steep to allow independent passage by visitors who use manually operated wheelchairs. The swinging bridge located on the 01-06328 - 7 - top floor of the Lied Jungle leads to an area served by an accessible route, but is itself inaccessible to visitors using wheelchairs. Similarly, there are two look-out points (one on the Jungle floor, the other located on the top floor of the Jungle) which are inaccessible. (B) According to the Society, the modifications required to render these areas accessible would require, among other things, raising the hippo view tunnel and hippo pool; raising the crocodile view tunnel, pool and holding area; raising the lily ponds and foot bridge over them; redesigning the suspension bridge; removing and reinstalling fiberglass mangrove trees, rock work, mud bank and mud texture; removing and replacing soil; maintenance and care of the animal, bird, fish and insect collections during modification, and removing and replanting trees, plants and flowers. Based upon contractors' conceptual estimates, the Society was advised that the cost of raising the elevation of parts of the lower Jungle trail to be nearly level and widening the suspension bridge and widening and lowering the lookouts and providing access to them would exceed $2,500,000. Such modifications would also require the facility to be closed for at least twelve months, resulting in lost revenues of an estimated $1,984,000 and a membership revenue loss of approximately $400,000. The total estimated cost to the Omaha Zoological Society of the modifications would exceed $4,840,000, or almost one-third of the original 01-06329 - 8 - cost of the Lied Jungle. Based on this information, the United States determined that the modifications were not readily achievable as defined in section 36.304 of the title III regulation. (C) Pursuant to 28 C.F.R. S 36.305, the Society has made available as an alternative to barrier removal two "Shopriders," stable four-wheel scooters, for use by visitors with disabilities who wish to navigate the Jungle floor independently. The Society makes the Shopriders available free of charge to visitors using wheelchairs, and has arranged to advertise their availability at the entrance to the Jungle floor. (D) The Society will monitor use of the Shopriders to gauge how well the vehicles are meeting the needs of visitors with mobility impairments. Specifically, the Society will ensure that the attendant in charge of helping visitors who wish to use Shopriders maintains a log that tracks how many times per day the vehicles are used, and how often situations arise where both vehicles are in use, resulting in delays for other visitors wishing to use them. This information will be provided in a report to be submitted to the United States pursuant to paragraph 14 of this Agreement. (E) The Jungle floor path was designed to resemble a trail in a real rainforest. As such, it contains sharp turns and slopes in excess of that required by the ADA 01-06330 - 9 - Standards for Accessible Design, and is composed of dirt and gravel. When the Jungle first opened on April 4, 1992, some portions of the lower natural substrate trail were loose and presented problems for persons using wheelchairs. Within two weeks of opening, corrective measures were taken.2 The Society agrees to continue its current maintenance program, which is as follows: (1) Every morning the trail is inspected to make sure that no small potholes due to the previous days' traffic or overnight irrigation of plants have occurred. If a pothole large enough to cause a problem is found, a rare occurrence, it is filled and tamped with rock wool and soil mixture. (2) Approximately once a month a gasoline-driven tamper is run over the complete trail to hammer out any lumps, bumps or small undulations which occur due to traffic. (3) Once a year the trail is completely roto-tilled, re-mixed with additional rock wool, raked smooth, and recompacted. (F) In addition to making available to visitors using wheelchairs the above-discussed Shopriders, which are ________________________ 2 These measures consisted of mixing large quantities of horticulture rock wool and small quantities of clay into the haydite substrate of the trail. This mixing was done with a roto tiller to a depth of approximately 6". The trail was then watered down and compacted with a gasoline powered tamper. According to the Society, since that time, the trail by and large has maintained a surface described as "very solid and stable." 01-06331 - 10 - capable of traversing the Jungle floor path, the Society will ensure that staff are available to assist individuals who wish to use their own wheelchairs on the Jungle path but need some aid due to the composition of the trail material. 4. Jungle Top-Floor Concrete Path Pursuant to the ADA's barrier removal requirements, the Society has removed and will continue to remove as needed ridges or sharp changes in elevation in excess of 1/4 inch on the path. 5. Information and Auxiliary Aids (A) Signage intended to educate visitors about the plants and animals of the rainforest is located throughout the Lied Jungle. To enable persons who are blind or partially sighted to access this information, the Society will produce an audiotape tour of the Lied Jungle which features the signage content, and will produce an audiotape recording of the Lied Jungle Trail Guide. The Society will also provide a large-print version of the Trail Guide pursuant to the auxiliary aids requirement of 42 U.S.C. S 12182(b)(2)(A)(iii) and 28 C.F.R. S 36.303. (B) The purpose of the Lied Jungle is to replicate the experience of travelling through a rainforest. The hanging vines, protruding rock formations, and lack of guide rails or guide ropes in the Lied Jungle are intended to enhance verisimilitude. Because these features may pose hazards to persons with vision impairments, however, the Society has 01-06332 - 11 - provided information in Braille and large-print formats regarding these potential hazards, as described in part C below. The Society will also ensure that staff are available to serve upon request as guides to visitors with visual impairments. (C) The Society has produced a brochure explaining the availability of assistance for persons with disabilities at the Zoo, Lied Jungle, and Treetops Restaurant. The brochure features a dedicated phone number with a recorded message giving further information about the availability of assistance. This phone number will be included in the telephone book listing for the Zoo. This brochure will be available at the ticket booth at the visitors' entrance. (D) The Society will train ticket booth staff to notify individuals with visual impairments of the availability of the materials described in paragraph 5(c) in alternate formats. The Society will also train ticket booth staff to notify individuals with visual impairments of the availability of staff to serve as guides if necessary. Tree Tops Restaurant 6. Lower Level Access In response to the United States' investigation, and pursuant to the ADA's barrier removal requirements, 42 U.S.C. S 12182(b)(2)(A)(iv) and 28 C.F.R. S 36.304, on April 7, 1993, the Society installed a platform lift to assist in access to the lower level of the Tree Tops Restaurant, the portion of the 01-06333 - 12 - Restaurant featuring floor-to-ceiling windows overlooking the Lied Jungle. The Society will replace this lift with a standard commercially manufactured wheelchair lift that complies with S4.11 of the ADA Standards for Accessible Design. The Society agrees to maintain the lift in good working condition pursuant to 28 C.F.R. S 36.211. 7. Restrooms (A) Pursuant to 28 C.F.R. S 36.304, the Society has improved accessibility in the restrooms at the Lied Jungle and Treetops Restaurant. Modifications to two women's and two men's restrooms at the Jungle and Treetops Restaurant were made in accordance with architectural drawings submitted for review to the Department of Justice. These modifications to four accessible alternate stalls included adjusting the installation of the parallel grab bars to meet the requirements shown in Fig. 30(b) of the Standards. (B) A number of modifications to the restrooms were also undertaken by the Society pursuant to City of Omaha requirements, including widening one stall by one-half of an inch, widening another by three-quarters of an inch, and widening another stall by one and one-half inches. The doors on all four stalls were widened from 32" clear to 34" clear. These modifications were undertaken pursuant to City code and not the ADA Standards. (C) Installation of standard stalls would necessitate the removal of one fixture in each restroom, resulting in a 01-06334 - 13 - fixture count below the minimum required by the City of Omaha. Under these circumstances, the current alternate accessible stalls are acceptable. (D) The Society has replaced drain pipes beneath the lavatories with offset gooseneck pipes. The Society is not required to replace lavatory faucets, as the current hardware was found to comply with the requirements of section 4.27.4 of the Standards. (E) The Society has installed straps at the baby changing tables, to hang within the reach range of persons using wheelchairs (48 inches maximum from the floor). (F) The Society will mount restroom signs at the location and height discussed in section 4.30.6 of the Standards. (G) The initial administrative complaint to the United States alleged that a low-hanging rope impeded access to the restrooms for visitors with mobility impairments. This arrangement was not in evidence during the aforementioned site investigation; the Society agrees to maintain an accessible path of travel to the restrooms, however. Other 8. Within 90 days of the date this Agreement is entered into by the parties, the Society shall implement the accessibility improvements detailed above. 01-06335 - 14 - 9. The obligations discussed above are continuing. 10. Within 90 days of the date this Agreement is entered into by the parties, the Society shall provide notice to its visitors of the accessibility improvements detailed herein. The Society agrees that subsequent to the effective date of this Agreement, its employees will inform all persons who inquire of the barrier removal requirements of this Agreement. The Society further agrees that, in the first issue of the Society's newsletter entitled "Zoo Prints" published following the date of this Agreement, the Society will provide a general description of the barrier removal measures agreed upon in this document. Also, for the next eighteen months (starting from the effective date of this Agreement) the Society will generally reference such accessibility improvements in any newly produced advertisements for or publications about the Lied Jungle which the Society disseminates to the public. 11. The United States agrees that the Society's completion of the steps set forth in this Agreement will fully resolve the administrative complaint submitted to the United States relating to various aspects of accessibility for persons with disabilities at the Henry Doorly Zoo, Lied Jungle, and Treetops Restaurant. 12. The Attorney General is authorized, pursuant to 42 U.S.C. S 12188(b)(1)(B), to bring a civil action under title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this 01-06336 - 15 - Agreement, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit under title III in this matter regarding the specific accessibility issues discussed herein, so long as the Society complies with the terms of this Agreement. 13. The United States agrees to waive any and all claims for civil penalties, costs, and monetary damages with respect to the specific accessibility improvements described herein, so long as the Society complies with the terms of this Agreement. 14. Within 120 days of the date of this Agreement, the Society shall submit a report to the United States detailing the actions it has taken to comply with the preceding provisions; the report shall include records showing the total number of persons entering the Henry Doorly Zoo each day who use wheelchairs, copies of all written materials produced pursuant to paragraphs 5(C), copies of written notices provided to visitors pursuant to paragraph 10, and the records required by paragraph 3(D). The report shall also contain a detailed description of all training efforts undertaken by the Society pursuant to paragraph 5(D) of this Agreement. 15. During the eighteen months following the date this Agreement is entered into by the parties, the Society shall report to the United States in writing, within 30 days of receipt, any and all written complaints it receives relating to discrimination on the basis of disability in connection with the accessibility modifications discussed herein, if the alleged 01-06337 - 16 - discrimination occurs after the date the modifications are required to be complete. Such report shall include copies of all documents in the Society's possession relating to the complaint and a statement of the Society's actions, if any, taken in response to the complaint. 16. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any requirement thereof has been violated, it may institute a civil action. If the Government demonstrates in such a proceeding that the Society has failed to materially comply with any provision of this Agreement, the Society shall be liable to the United States in an amount of $10,000. 17. Failure by the Department of Justice to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement. 18. In the event that the Society fails to comply in a timely fashion with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department of Justice as to a temporary modification of the relevant terms of the Agreement, all terms of this Agreement shall become enforceable in United States District Court. 01-06338 - 17 - 19. This Agreement is a public document. A copy of this document or any information contained in it, may be made available to any person. The Society or the United States shall provide a copy of this Agreement to any person on request. 20. The effective date of this Agreement is the date of the last signature below. This Agreement shall be binding on the Society and its successors in interest, and the Society has a duty to so notify all such successors in interest. 21. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, shall be enforceable. This Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other Federal law. This Agreement does not affect the continuing responsibility of the Society to comply with all aspects of the Americans with Disabilities Act. 01-06339 - 18 - Specifically, this Agreement does not affect the duties of the Society with regard to the alterations and new construction requirements of the Act, nor with regard to barrier removal in any other part of any facility owned and/or operated by the Society not discussed herein. Agreed and Consented to: For the UNITED STATES OF AMERICA L. IRENE BOWEN Date March 22, 1994 Deputy Chief SHEILA M. FORAN Trial Attorney Public Access Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 For the OMAHA ZOOLOGICAL SOCIETY GEORGE C. ROZMARIN Date 3/9/94 Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Block, PC 500 Energy Plaza 409 South 17th Street Omaha, NE 68102-2663 Tel: (402) 341-6000 01-06340