SETTLEMENT AGREEMENT UNDER THE AMERICANS WITH DISABILITIES ACT BETWEEN THE UNITED STATES OF AMERICAN AND APPLEWOOD TANNING CENTER This matter was initiated by a complaint filed with the Department of Justice against the Applewood Tanning Center in Omaha, Nebraska ("Applewood"). The complaint alleged that Applewood discriminated against two individuals on the basis of disability by failing to make reasonable modifications to policies where such modifications were necessary to afford Applewood's services to the individuals. Specifically, the complaint alleges that Applewood required as a condition of service that customers, including those with vision impairments, independently read and sign a liability release, and that Applewood refused to allow guide dogs in a portion of the facility. The Department of Justice represents that it has investigated the complaint pursuant to its authority to enforce title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. SS 12181-89, and the title III regulation, 28 C.F.R. pt. 36. Applewood denies the substance of, and the tenor of, many of the allegations which are the subject of the referenced complaints, and as set forth below further denies that any violation of the ADA occurred in these instances. Applewood's sole motivation for entering into this settlement is avoidance of the expense of threatened litigation. Accordingly, to save the cost of litigation, the parties have agreed to resolve this matter according to the terms set forth below without the need for formal findings or resort to litigation. The parties to this Agreement are Applewood Tanning Center and the United States. The parties stipulate as follows: 1. Applewood Tanning Center, located at 5417 South 96th Street, Omaha, Nebraska 68127, is a place of public accommodation as defined by title III of the ADA because it is a "sales or rental establishment" and/or a "service establishment." 42 U.S.C. S 12181(7), 28 C.F.R. S 36.104. 2. Complainant 1 is blind and is an individual with a disability, as defined by section 302(A) of the Act and section 36.104 of the Department of Justice's regulation. 42 U.S.C. S 12102, 28 C.F.R. S 36.104. 3. Complainant 1 alleged that in May 1993, she arrived at Applewood to obtain tanning services. Complainant 1 alleged that 01-06341 - 2 - she was asked a number of questions that are not asked of other individuals, such as whether her physician approved of tanning and what tanning businesses she had frequented previously. Complainant further alleged that after she answered these questions, she was prevented from tanning because the establishment required that she be able to independently read and sign Applewood's Customer Waiver/Parental Consent form ("Customer Waiver"). Complainant 1 is blind, and since the Customer Waiver was not provided in a format accessible to her (namely, in Braille or on audiotape), she was unable to read it. According to Complainant 1, Applewood refused her request that the Customer Waiver be read to her by Applewood personnel. Instead, Applewood informed Complainant 1 that she could not use the tanning services if she could not read and sign the Customer Waiver herself or with the assistance of someone else (independent of Applewood personnel). 4. Complainant 2 is blind and is an individual with a disability, as defined by section 302(A) of the Act and section 36.104 of the Department of Justice's regulation. 42 U.S.C. S 12102, 28 C.F.R. S 36.104. 5. Complainant 2 uses a service animal as defined by section 36.104 of the Department of Justice's implementing regulation. 28 C.F.R. S 36.104. 6. Complainant 2 alleges that in June 1993, he arrived at Applewood with his guide dog and requested tanning services. Complainant 2 alleged that Applewood refused to allow him to take his service animal into Applewood, stating that it was a violation of health department standards. Complainant 2 alleged that he attempted to show Applewood his guide dog identification card, and explained that he was willing to tie the dog to a chair in the waiting area during the tanning session. Complainant 2 alleged that Applewood refused to allow him to leave his guide dog restrained in the waiting area during the session, and that Applewood refused to allow him to take the dog with him into the tanning area. 7. Applewood denies that it has violated the ADA, and specifically denies the allegations as made by each of the Complainants. Applewood alleges that Complainant 1 was offered the opportunity to have some person independent of Applewood personnel read the Customer Waiver to her, but that she declined to do so, and thereupon herself declined to use Applewood's tanning services. Applewood alleges that it was not aware that Complainant 1 had come by herself to Applewood via taxicab, nor did Complainant 1 inform them of such fact. 8. Applewood further denies the allegations with respect to Complainant 2. Applewood alleges that Complainant 2 asked to bring the dog into the tanning booth with him, and further alleges that "the ultraviolet rays which leak from tanning equipment in a 01-06342 - 3 - tanning booth unavoidably present[ed] a clear and present danger to the sight of dogs and that his dog's sight would most assuredly suffer serious harm." Applewood alleges that it was concerned for the dog's eyesight, and suggested that Complainant 2 leave the dog in the waiting area with someone independent of Applewood. Applewood alleges that when it inquired whether Complainant 2 came with anyone, Complainant 2 abruptly departed Applewood premises without giving a response. Applewood maintains that it is committed to full compliance with the ADA, and to demonstrate that commitment, has agreed to the steps set forth in this Agreement. ACCORDINGLY, IT IS HEREBY AGREED THAT 9. Within 30 days of the effective date of this Agreement Applewood shall take the following actions: A. Pay the sum of $1000 to each Complainant. Payment shall be made in the form of a check drawn payable to each individual and mailed to Sheila Foran, undersigned Attorney for the United States, who shall deliver said checks to each of the respective complainants only after a fully executed and notarized Release for any and all claims concerning the incidents described herein have been placed in the mail to Applewood or its attorneys. B. Implement the following policies regarding service to customers with disabilities: (1) Applewood shall not make any additional or different inquiries or require any additional or different documentation or certification in connection with the provision of tanning services to people with disabilities, unless Applewood has information, based on the best available objective evidence, that such a customer may pose a direct threat to the health or safety of others or may jeopardize the safe operation of the program.1 ________________________________ 1 Throughout this document, the term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids and services. 28 C.F.R. S 36.208(a), 42 U.S.C. S 12182 (b)(3). The determination that a person or service animal poses a direct threat to the health or safety of others must be based on actual risk and not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment. 01-06343 - 4 - (2) Applewood shall provide the information contained within the Customer Waiver in a format that permits the information to be communicated to people with vision impairments as effectively as it is communicated to others. Applewood shall meet this requirement by providing the form in large print and in Braille. Further, for those customers with vision impairments who prefer that the Customer Waiver be read to them, Applewood personnel shall cause the Customer Waiver to be clearly read so that an audio recording device can clearly record such reading and all audible responses thereto. Upon the customer's oral and recorded assent, Applewood will assist customers with vision impairments in placing their signature on the Customer Waiver. The purpose of these policies will be to assure that people with vision impairments can understand the Customer Waiver and signal their acknowledgement of the terms of the Waiver in a manner that is as effective as it is for others. (3) Customers with disabilities who use service animals may leave service animals restrained in the waiting area during tanning sessions. Applewood shall not require that customers with disabilities bring attendants with them to the facility to accompany or supervise service animals. (4) Applewood shall allow service animals into any area of its facility where it allows customers, including tanning areas. If Applewood has current medical knowledge about the dangers that tanning equipment may pose to humans and/or animals, it may share this information with all of its clients on a non- discriminatory basis. Such information may not be based on speculation, stereotypes, or generalizations about particular disabilities or the service animals employed by people with disabilities. Applewood may obtain consent from a customer to allow a service animal into the tanning area, and may amend its Customer Waiver to include service animals accompanying customers with disabilities. However, Applewood shall not make any additional or different inquiries or require any additional or different documentation in connection with the provision of tanning services to people using service animals, unless Applewood has information, based on the best available objective evidence and current medical knowledge, that such a customer or animal may pose a direct threat to the health or safety of others or may jeopardize the safe operation of the program. 01-06344 - 5 - 10. Within 30 days of the effective date of this Agreement, Applewood will submit a copy of the policy contained in Paragraph 9(B) above to the National Federation of the Blind, Omaha Chapter, P.O. Box 801, Omaha, Nebraska, 68101. In addition, Applewood will advertise the policy in the Omaha World Herald and will submit to the United States a copy of the advertisement or other proof that such advertisement appeared within 30 days of the effective date of this Agreement. 11. Within 90 days of the effective date of this Agreement, all Applewood personnel who deal with customers will undergo a training session at the Omaha office of the Nebraska Services for the Visually Impaired in order to learn about blindness and about the appropriate service to be extended blind customers. 12. The Department of Justice may review compliance with this Agreement at any time. If at any time the Department of Justice finds that this Agreement or any requirement thereof has been violated, or in the event that Applewood fails to comply in a timely fashion with any requirement of this Agreement, all terms of this Agreement shall become enforceable in federal district court and the Attorney General shall be authorized to seek civil penalties, pursuant to 42 U.S.C. S 12188(b)(2)(C). Failure by the Department of Justice to enforce this entire Agreement with regard to any deadline or specific provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines or provisions of this Agreement. 13. In consideration of the terms of this Agreement, the United States agrees to refrain from filing civil suit under title III of the ADA in this matter regarding the specific issues discussed herein, so long as Applewood complies with the terms of this Agreement. 14. Except as provided by this Agreement, the United States agrees to waive any and all claims for civil penalties, costs, and monetary damages with respect to the alleged occurrences described in this Agreement. 15. This Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of Applewood and the United States Department of Justice. 01-06345 - 6 - 16. This document 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 any of the parties or by agents of the parties, that is not contained in this written Agreement is enforceable. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect Applewood's continuing responsibility to comply with all requirements of the ADA including those relating to the removal of architectural barriers to access. 17. This is a public Agreement and may be made available to any person. Applewood or the United States shall provide a copy of this Agreement to any person on request. 18. The effective date of this Agreement is the date of the last signature below. For the United States: Deval L. Patrick Assistant Attorney General Date: 6/7/96 John L. Wodatch L. Irene Bowen Sheila M. Foran Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 For Applewood Tanning Center: Date: 5/14/96 Teddy W. Hurt President, Applewood Tanning Center Date: 5/14/96 William E. Gast Attorney for Applewood Tanning Center 01-06346