Case 1:06-cv-00865-MSK-BNB Document 1 Filed 05/08/06 USDC Colorado Page 1 of 36
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson, by and through their attorneys, Kevin W. Williams, Legal Program Director of the Colorado Cross-Disability Coalition, and Fox & Robertson, P.C., hereby submit their Complaint for violations of the Americans with Disabilities Act, the Rehabilitation Act, the Colorado AntiDiscrimination Act, and the Colorado Consumer Protection Act.

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INTRODUCTION 1. Over fifteen years after Congress passed our nation’s landmark civil rights law for people with disabilities, Defendants -- which either own and/or operate performance venues at the Denver Performing Arts Complex and/or control ticket sales for wheelchair seating there -continue to discriminate against persons who use wheelchairs and other mobility devices. 2. On July 12, 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., establishing one of the most important civil rights law for people with disabilities in our country's history. 3. Congress explicitly stated that among the purposes of the ADA are:
a. “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;”
b. “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities, . . .;” and
c. “to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”
42 U.S.C. § 12101(b). 4. The ADA further clarified the Rehabilitation Act of 1973, which applies to the
City, because it receives federal financial assistance.
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5. In spite of this abundant lead time and the extensive publicity the ADA has received since 1990 and many more years after the passage of the Rehabilitation Act, Defendants continue to discriminate against people who use wheelchairs in ways that include but are not limited to failing to provide accessible seating to persons who use wheelchairs and other mobility devices and failing to properly train and educate their employees in the requirements of the ADA and related issues.
6. Unlike non-disabled patrons of the Performing Arts Center who can select their seating location in the price range they desire in advance, individuals who use wheelchairs are subjected to, among other problems, the following:
a. being told wheelchair seats are unavailable, when, in fact, they are; b. being sold tickets for seats that don’t exist or are blocked by equipment; c. being sold wheelchair seats that are inaccessible; d. being subjected to lengthy delays getting to their seats or not being able to
get there at all due to malfunctioning wheelchair lifts. 7. Defendants also discriminate against individuals with hearing and visual impairments by:
a. failing to provide interpreters for certain performances; b. failing to make their web sites accessible.
JURISDICTION
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8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado.
9. Venue is proper within this District pursuant to 28 U.S.C. § 1391. PARTIES
10. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies.
11. Laura Hershey is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Hershey is substantially limited in several major life activities, including walking and breathing, and requires the use of a motorized wheelchair for mobility. Laura Hershey is a CCDC member.
12. Robin Stephens is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Stephens is substantially limited in several major life activities, including walking and speaking, and requires the use of a motorized wheelchair for mobility. Robin Stephens is a CCDC member.
13. Carrie Ann Lucas is and was at all times material hereto a resident of Colorado residing at 5601 East Yale Avenue, Denver, Colorado 80222. Ms. Lucas is substantially limited in several major life activities, including walking, hearing, breathing and seeing. She requires the use of a motorized wheelchair for mobility, sign language interpreters for effective communication and screen enhancement software for reading. Carrie Lucas is a CCDC member.
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14. Plaintiff Heather Rebekah Renee Lucas is a CCDC member who is substantially impaired in several major life activities, including walking, speaking, seeing and hearing, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is fifteen years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Heather Rebekah Renee Lucas is a CCDC member.
15. Plaintiff Adrianne Emily Monique Lucas is a CCDC member who is substantially impaired in several major life activities, including walking and speaking, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is seven years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Adrianne Emily Monique Lucas is a CCDC member.
16. Daniel Wilson is and was at all times material hereto a resident of Colorado residing at 3700 East Jewel Avenue, Denver, Colorado 80210. Mr. Wilson is substantially limited in the major life activity of walking, and requires the use of a motorized scooter for mobility. Daniel Wilson is a CCDC member.
17. Defendant City and County of Denver (“City”) owns and operates the Denver Performing Arts Complex (“Performing Arts Complex”), and leases space in the Performing Arts Complex to the other Defendants in this case. The City, through contractual, leasing and licensing arrangements, rents venues and portions of the Performing Arts Complex to private entities for the presentation of various types of theatrical, musical and other events. The City, through contractual, leasing and licensing arrangements with the other Defendants in this case,
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provides tickets for wheelchair and companion seating at the venues at the Performing Arts Complex.
18. Defendant Denver Center for the Performing Arts (“DCPA”) is a Colorado nonprofit corporation, which, through contractual, leasing and other arrangements, provides theatrical, musical and other performances to the public at the Performing Arts Complex. DCPA is a lessee of the City and operates certain venues at the Performing Arts Complex. DCPA operates under two trade names, Denver Center Attractions (“DCA”) and Denver Centre Theatre Company (“DCTC”). DCPA, in conjunction with the City, is responsible for and controls ticketing policies for some of the venues at the Performing Arts Complex for the performances it provides.
19. Defendant Opera Colorado is a Colorado non-profit organization, incorporated to promote opera in Colorado. Through lease arrangements with the City, Opera Colorado promotes its operas in the Ellie Caulkins Opera House (“Opera House”). Prior to the opening of the Opera House, Opera Colorado leased the Temple Hoyne Buell Theatre (“Buell Theatre”) and Boettcher Concert Hall for its operas. Opera Colorado is a lessee of the City and operates certain venues at the Performing Arts Complex. Opera Colorado and the City are responsible for making wheelchair seating and companion seating for operas at the Performing Arts Complex available to the public and providing tickets therefor.
20. Defendant Colorado Ballet Company (“Colorado Ballet”) is a Colorado non-profit organization, which schedules, promotes and sells tickets for ballet performances at the Performing Arts Complex. Most ballet performances are now held in the Opera House, but
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previous ballets have been held in the Buell Theatre and the Boettcher Concert Hall. Colorado Ballet is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Ballet and the City are responsible for making wheelchair seating and companion seating for ballets at the Performing Arts Complex available to the public and providing tickets therefor.
21. Colorado Symphony Association is a Colorado non-profit organization, which schedules, promotes and sells tickets for symphony performances at the Performing Arts Complex. Most symphony performances are held in the Boettcher Concert Hall, but, on information and belief, symphony performances have been held in other venues at the Performing Arts Complex. Colorado Symphony Association is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Symphony Association and the City are responsible for making wheelchair seating and companion seating for symphony performances at the Performing Arts Complex available to the public and providing tickets therefor.
GENERAL ALLEGATIONS 22. According to its website, www.denvercenter.org, the DCPA was founded in 1972 and “is a showcase for live theatre, a nurturing ground for new plays, a preferred stop on the Broadway touring circuit, an award-winning multi-media production facility, a national training school for actors, and the site of a voice clinic and research facility.” The DCPA is the largest tenant of the Performing Arts Complex. The Performing Arts Complex is located at 14th and Curtis Streets and houses, among other theatres and auditoria, the Opera House, the Buell
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Theatre, the Boettcher Concert Hall, the Space Theatre, the Jones Theatre, the Stage Theatre, the Ricketson Theatre, and the Garner Galleria Theatre. The Performing Arts Complex also provides a parking garage and access to the parking garage for the Colorado Convention Center. DCPA’s primary focus is the presentation of live theatrical productions. It also houses film and television, voice research and education divisions. The Performing Arts Complex is 4-squareblock site owned and operated by the City and County of Denver that offers 11, 260 seats in 11 performance venues. The DCPA is the primary user of the theatres in the Complex, although several arts organizations, such as the Colorado Symphony, Opera Colorado and The Colorado Ballet also call the Complex home.
23. The City was responsible for much of the design and construction of the theaters and auditoria at the Performing Arts Complex.
24. The City was also responsible for renovations to the buildings at the Performing Arts Complex. For example:
a. In or about 1990, the City was responsible for the design and construction of the Temple Hoyne Buell Theatre.
b. In or about 2005, the City was responsible for the complete renovation of the Quigg Newton Denver Municipal Auditorium into what is now the Ellie Caulkins Opera House.
c. On information and belief, the City was responsible for making renovations to the Boettcher Concert Hall after 1992.
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25. The Opera House is the venue at which Opera Colorado and the Colorado Ballet hold performances.
26. The Opera House was designed and constructed in 2004-2005 and opened its doors to the public in or about October of 2005.
27. The Opera House is housed inside the Quigg Newton Denver Municipal Auditorium (“Auditorium”). The entire inside of the Auditorium was renovated and reconstructed. Only the exterior shell of the Auditorium remains.
28. The Opera House provides approximately 2,268 seats on five levels for viewing of performances. From the stage upward, there is the Orchestra level, the Parterre level (raised section behind the orchestra), the Mezzanine level (first balcony), the Loge level (second balcony), and the Balcony level (third balcony). The Opera House has designated wheelchair seating in the orchestra section that is on a slope and is not level. It is unknown how many wheelchair and companion seats are available, because the location and availability of wheelchair seating has changed since the opening of the facility and some seats are removable, making them potential wheelchair seating locations.
29. The Opera House provides some wheelchair seating locations that are segregated from their respective companion seats.
30. Because the location of wheelchair seating locations has continued to change at the Opera House, it is difficult or impossible for patrons who need these seats to know what is available.
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31. People who use wheelchairs have ordered tickets for specific wheelchair seating locations at Opera House and when they arrived at the performance, found those seats did not exist or were moved to another location.
32. The only access to the orchestra level of the Opera House for people who use wheelchairs or mobility devices is via a wheelchair lift. The lifts are hard to find, very cramped and malfunction repeatedly.
33. On information and belief, there is not adequate emergency egress at the Opera House for individuals who use wheelchairs from the orchestra level.
34. During a tour of the Opera House in the fall of 2005, one of the lifts malfunctioned, and Ms. Lucas was stuck in it for approximately fifteen minutes.
35. In or about October of 2005, Ms. Lucas and her two daughters attended a performance of the ballet, “Sleeping Beauty” at the Opera House. It took at least twenty minutes for all three of them to use the lift to access their seats in the orchestra level. When they arrived at their seats, the seating locations were not level and on a steep slope. During the performance, Ms. Lucas kept sliding out of her wheelchair. Adrianne Lucas was choking on the strap to hold her in her wheelchair because of the slope.
36. Ms. Lucas complained to a manager who attempted to have her and her children moved to wheelchair seats farther from the stage. Ms. Lucas and her daughter have visual impairments, which require them to be close to the stage to see. They reserved seats close to the stage for this reason. The manager then tried to have them move to another seating section where they would be lined up in a row, each behind the other. Ms. Lucas would not have been
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able to attend to or communicate with her daughters and the seats they wanted Ms. Lucas and her daughters to move to did not have adequate maneuvering clearances to get in and out of the seats.
37. At intermission, Ms. Lucas and her daughters attempted to access one of the lifts. Ms. Lucas pressed the call button. Lights went off, but the lift did not come. She tried seven times, but the lift did not come until an usher went up to retrieve it. This took approximately eight minutes. Ms. Lucas got in the lift, waited for the doors to close, and pushed the button. The lights on the button inside the lift came on, but the lift didn’t move. After several minutes all the button lights flashed, then the doors opened. Ms. Lucas decided to get out. Not wanting to be trapped in the lift as she was before, Ms. Lucas decided to try the lift on the other side.
38. The route leading from one lift to the other was not level, and Ms. Lucas’ wheelchair slid into the backs of the seats to her left (toward the stage) due to the excessive cross slope of the aisle.
39. The other lift worked, but by the time Ms. Lucas and her daughters all got up the lift, intermission was over, and there was no time to return. They left without seeing the second act.
40. In or about December of 2005, Ms. Lucas and her two daughters attended a performance of “The Nutcracker” at the Opera House. They were not able sit in the wheelchair seats they purchased. The configuration of wheelchair seating was different from when she attended before and from the seating plan from which she chose her seats. There was no longer a route between the two lifts. There were seats blocking access between the lifts.
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41. When Ms. Lucas attended the December 27, 2005 performance of “The Nutcracker,” she needed to pick up tickets at the “will call” window. The “will call” window was not accessible to Ms. Lucas.
42. In or about November of 2005, Daniel Wilson purchased wheelchair and companion seating tickets for the opera “Carmen” at the Opera House. When Mr. Wilson and his companion arrived, they discovered their seats were separated by a pillar. Mr. Wilson did not want to sit separated from his companion. They were able to change seating locations and be able to sit next to each other because there was an unsold seat. When Mr. Wilson transferred from his scooter to a seat, and without Mr. Wilson’s permission, an employee took his scooter from him.
43. Mr. Wilson has been deterred from ordering tickets for wheelchair seats in the orchestra level because of the presence of the malfunctioning wheelchair lifts.
44. Plaintiff Laura Hershey attempted to purchase tickets for the Opera “Carmen” at the Opera House for her and her mother for her mother’s birthday. Initially, she was told the only wheelchair seats that were available were in the orchestra level, the most expensive section. At that time, she wanted seats in a less expensive section. Ms. Hershey was given different information regarding the availability of wheelchair seating each time she called Opera Colorado. She eventually was able to purchase seats in the orchestra level.
45. Ms. Hershey, her mother and brother attended the opera “Carmen” at the Ellie Caulkins Opera House in or about November of 2005.
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46. When she arrived, Ms. Hershey was unable to find the lifts to the orchestra level because of inadequate signage or usher assistance.
47. When she finally got to the lift, Ms. Hershey could not access the lift because of the flow of patrons moving down the stairs.
48. When Ms. Hershey finally entered the lift, it was cramped, and she could not operate the controls. Her brother was able to climb into the lift with her, but there was very little room. Her mother took the stairs.
49. An usher in the orchestra level showed Ms. Hershey to where her ticketed seats were, but there was no Figaro system (screens that provide translation of the opera libretto) that she could see from her seating location. She asked for a manager. When the manager arrived, he said they were not in the wheelchair seating section, although Ms. Hershey’s tickets were for these seats, and the tickets had the word “accessible” printed on them. The manager suggested that they move to another set of accessible seats. Fortunately, these seats were not sold, and Ms. Hershey was able to sit with her family.
50. Ms. Hershey’s mother, who was seated in a companion seat, had difficulty seeing the Figaro screen from her companion seat.
51. Wheelchair seating violations of the ADA at the Ellie include, without limitation, the following:
a. the Orchestra level is “raked,” meaning that the seats, including the wheelchair seating locations are on a slope and are not level;
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b. some wheelchair seating locations are separated from companion seats by pillars;
c. the orchestra level is not accessible to individuals who use wheelchairs via an elevator; instead, the only access to the orchestra level for individuals who use wheelchairs is via two lifts on either side of the orchestra level, which malfunction often and take too long to operate;
d. there is no accessible route connecting wheelchair seating locations to the lifts in the orchestra level;
e. the lifts will not accommodate some individuals who use wheelchairs and mobility devices, rendering the orchestra level inaccessible to them;
f. the lifts are difficult to operate and provide no instruction; g. the controls on the lifts are not operable by some individuals who use
wheelchairs or mobility devices; h. the lifts are difficult to find; on information and belief, there is not
appropriate signage to indicate to individuals who use wheelchairs or mobility devices where they are located; i. depending on the size of the wheelchair or mobility device, there is insufficient room in the lift for any other passengers; j. the new lifts have malfunctioned repeatedly when CCDC members who use wheelchairs have attempted to use them;
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k. the lifts are difficult to enter for individuals who use wheelchairs, because one must turn around an obstruction to enter them and because of the pedestrian traffic flow on the stairs adjacent to the lifts;
l. the lifts are so slow that individuals who use wheelchairs cannot leave the orchestra level and return during intermissions before the performance begins;
m. wheelchair seats have been sold to individuals who use wheelchairs that have no captioning screens, known as “Figaros;”
n. individuals who use wheelchairs have had to change seating locations because they were sold “Accessible” seats that were not actually wheelchair seating locations;
o. companion seating in some wheelchair seating sections does not offer an equivalent view of the “Figaro” captioning screens;
p. the aisle leading to the front row of the orchestra level where wheelchair seating locations is designated is narrow, and there is no turn around space for an individual who uses a wheelchair;
q. people who use wheelchairs are unable to sit in the seats they have chosen and purchased.
52. On information and belief, Defendants or their agents have made some improvements to wheelchair seating in the orchestra level, but many of the problems listed above still exist.
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53. Tickets for performances at the Opera House are sold through Opera Colorado, Colorado Ballet, Ticketmaster, Ticketswest, and other ticket-selling outlets. Defendants responsible for providing wheelchair and companion seating tickets for the Opera House have failed to convey the information necessary to enable individuals who use wheelchairs and their companions to have similar choices for seating to the non-disabled public, resulting in patrons who use wheelchairs being sold the wrong seats or not being able to select their seats in advance.
54. CCDC has attempted to educate the City about the accessibility problems at the Opera House and to reach an amicable solution. Those attempts have not been successful.
55. The Buell Theatre was constructed in 1991. It has approximately 2,884 seats. Of these, approximately 109 removable seats are “designated” as accessible to persons who use wheelchairs.
56. Some of the sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
57. Some of the best seating sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
58. CCDC members who use wheelchairs have attempted to purchase wheelchair seats at the Buell Theatre and, upon arrival at the theater, discovered those seats were unavailable because of camera, sound or lighting equipment blocking the section.
59. On or about October 24, 2004, Carrie Ann Lucas bought tickets for the ballet “Dracula” for the matinee performance for herself, her daughter and an attendant, which was presented at the Buell Theatre. Ms. Lucas called TicketMaster on Saturday to make sure tickets
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were available. She found out there were wheelchair seats available on the orchestra level. Ms. Lucas went to the Buell Theatre box office on Sunday before the performance to purchase tickets. There were numerous barriers to access.
60. When Ms. Lucas went to purchase tickets, there was a carpet and red velvet ropes blocking access to the window where tickets are purchased. Ms. Lucas had to have someone remove the ropes in order to access the window.
61. When Ms. Lucas requested tickets in the wheelchair seating sections in the orchestra level, she was told none were available. She wanted to sit in the orchestra level seats, but was denied this opportunity. The ticketing agent first said she was having difficulty finding any accessible seats. She was unable to get accessible seating tickets to print. Ms. Lucas was never able to purchase tickets. Instead, the ticketing agent gave Ms. Lucas tickets, but they were for the mezzanine level.
62. When Ms. Lucas and her companions entered the Buell Theatre, Ms. Lucas discovered that there was no one sitting in the orchestra level, section B wheelchair seating box. They went to their seats on the mezzanine level. When they arrived at their seats, Ms. Lucas was unable to sit in her assigned seat because there was an instrument panel there. They had to sit elsewhere.
63. Ms. Lucas experienced problems with access when she, her daughter and an attendant went to see the ballet “Peter Pan” at the Buell Theatre during the previous spring as well. Ms. Lucas purchased wheelchair seats on the orchestra level, but the boxes in orchestra sections B and D are not long enough from front to back to accommodate Ms. Lucas’
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wheelchair. She could not fit inside the box. As a result, she requested to be moved. The ushers did move Ms. Lucas’ party into a box in the orchestra C section, but that box had camera equipment in it. As a result, the box itself and views from it were obstructed.
64. Other CCDC members have had difficulty discerning what wheelchair seating locations are available at the Buell Theatre and obtaining the wheelchair seating locations they would like.
65. On information and belief, the Buell Theatre routinely blocks off wheelchair seating areas with sound, lighting, and other equipment, even though those seating locations are advertised as available for sale.
66. Defendants who are responsible for providing tickets for wheelchair seats at the Buell Theatre have failed to provide adequate access to those seats, have sold tickets for seats that were blocked and otherwise have discriminated in their ticketing policies.
67. On or about May 5, 2006, Ms. Lucas, who is deaf and enjoys performances using a sign language interpreter, called the DCPA box office using a TTY to inquire about tickets to the upcoming performance of “Movin’ Out” at the Buell Theatre. She requested wheelchair accessible seats and a sign language interpreter. The box office employee informed her that there was “no signed performance” of “Movin’ Out.” The box office employee asked Ms. Lucas if she was looking for tickets for herself and an interpreter. Ms. Lucas informed that she was requesting that DCPA provide an interpreter. The employee informed that the DCPA does not provide interpreters, that this was up to the individual Broadway touring shows, and this
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production chose not to provide an interpreter. Ms. Lucas requested that a supervisor call her. At the time of this filing, she has not yet received a call.
68. CCDC has attempted to educate the City about the accessibility problems at the Buell Theatre and to reach an amicable solution. Those attempts have not been successful.
69. Boettcher Concert Hall was constructed in approximately 1978 and has approximately 2,634 seats. It provides only seven wheelchair and seven companion seats at the highest level of the Concert Hall, although there are conflicting reports about the precise number and location. Boettcher Concert Hall hosts the Colorado Symphony.
70. In January, 2006, Plaintiffs Hershey and Stephens attempted to get tickets for an April 5, 2006 Itzhak Perlman concert at Boettcher Concert Hall. On January 11, 2006, after receiving a special promotional e-mail with the Symphony's electronic newsletter, Ms. Hershey called to order tickets. (This was two days before tickets went on sale to the general public on January 13, 2006.) She was told by a person at the Boettcher Concert Hall box office that seats were available, but all of the wheelchair seats had been sold to season ticket holders. Ms. Hershey requested that the City investigate whether they would inquire of the seven subscribers who had purchased those seats if they actually needed those seats. The box office did not do so.
71. On January 13, 2006, the day that tickets went on sale to the general public for the Itzhak Perlman concert, Ms. Hershey again called the Boettcher Concert Hall box office to inquire about purchasing tickets. Again, she was told that while some tickets were still available, none of these were for wheelchair-accessible seats. Knowing that the entire concert would sell out quickly, Ms. Hershey requested a reasonable accommodation: She purchased two non-
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wheelchair seats in the highest price range and asked the City to find two wheelchair seating locations. The City refused.
72. Later, additional seating was added to Boettcher Concert Hall in an area where wheelchair seats have been provided at other events, known as the “crossover aisles,” but none of the added seats were wheelchair accessible. Ms. Hershey requested wheelchair seats in the added seating section, but the City refused.
73. Individuals who use wheelchairs have sat in the crossover aisles in the past. 74. After several letters were exchanged with CCDC, Ms. Hershey and Ms. Stephens eventually were accommodated. 75. When Ms. Hershey and Ms. Stephens attended the Itzhak Perlman concert, they were seated in a section that the City previously had informed them would cause a fire code violation. There were other people in wheelchairs seated in the same section. 76. On or about October 25, 2005, Carrie Ann Lucas attended the Colorado Bar swearing-in ceremony at the Boettcher Concert Hall. All new lawyers who had been admitted to the practice of law in Colorado after the July, 2005 bar exam were invited to attend as well as friends, family and other members of the bar. 77. DCPA told Ms. Lucas she was required to sit in the wheelchair seating section high above where the rest of the inductees were seated. She disagreed. 78. Ms. Lucas was seated on the crossover aisle in between orchestra 1 and orchestra 2, see Exh. 1 attached hereto, alone with her sign language interpreter. She was segregated from
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her peers. Ms. Lucas had to argue for a very long time to have her interpreter seated in front of her, rather than seated directly next to her where Ms. Lucas would have been unable to see her.
79. Other inductees were permitted to sit with their friends and family, but Ms. Lucas was not allowed to. She could not sit with her children.
80. All of the people attending the event were seated in rows closest to the stage, except people attending the event who use wheelchairs who were relegated to the very top rows of the Concert Hall. They were segregated from the rest of the audience by many empty rows of seats, and it was difficult to hear.
81. CCDC has attempted to educate the City about the accessibility problems at the Boettcher Concert Hall and to reach an amicable solution. Through correspondence, the City informed CCDC that it cannot expand wheelchair seating into the crossover aisle because it would create fire safety issues, although seating for non-disabled patrons has been provided there. On or about April 26, 2006, CCDC received a letter, informing that the City intends to install additional wheelchair seating at the Boettcher Concert Hall in the crossover aisles. The precise deadline is unknown. However, rather than installing the wheelchair and companion seating areas in the crossover aisle between orchestra 1 and orchestra 2, the City proposes to install them in the crossover aisle between orchestra 2 and orchestra 3. As can be seen in Exh. 1, the crossover aisle between orchestra 2 and orchestra 3 is much farther from the stage. On information and belief, the City can install wheelchair and companion seating on the crossover aisle between orchestra 1 and orchestra 2, providing people who use wheelchairs a better view of the stage and differing choices of admission prices than will be provided from the crossover aisle
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between orchestra 2 and orchestra 3. CCDC requested that the City do this; the City has not yet responded.
82. On information and belief, the Stage Theatre provides more than fifty seats. On information and belief, there is an insufficient number of wheelchair and companion seats available in the Stage Theatre.
83. On information and belief, there is inadequate wheelchair seating in other theatres in the Performing Arts Complex.
84. In or about 2005, DCPA closed its 14th Street box office and moved it to a location inside the Helen Bonfils Theatre Complex inside the Performing Arts Complex. The service counter at this box office is far too high for persons in wheelchairs to use.
85. Although the DCPA web site claims there is accessible parking on every level of the Performing Arts Complex parking garage, the parking garage provides accessible parking spaces and van accessible parking spaces on the third, fourth and fifth levels. Van accessible parking is only available on the sixth level. There is not adequate signage directing people with disabilities to these levels. On information and belief, upon entry into the garage prior to performances, employees direct drivers to park on the top level first. This level has no accessible parking.
86. The general public may purchase tickets for any performance at the DCPA on the internet. Those needing wheelchair seating are required to contact the DCPA box office.
87. Colorado Ballet provides no TTY number on its web site for reserving tickets. 88. Opera Colorado provides no TTY number on its web site for reserving tickets.
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89. Colorado Symphony Association provides no TTY number on its web site for reserving tickets.
90. The DCPA web site, http://denvercenter.org/page.cfm?id=23683064, claims, “The Denver Center for Performing Arts is fully accessible to persons of all abilities and offers services for patrons in wheelchairs and with hearing and sight impairments.”
91. The DCPA web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
92. The Opera Colorado web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
93. The Colorado Ballet Company web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
94. The Colorado Symphony Association web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
95. Laura Hershey has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Hershey has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Hershey from attending future performances until the accessibility problems described herein are resolved.
96. Laura Hershey suffered damages as a result of Defendants’ conduct. 97. Robin Stephens has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms.
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Stephens has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Stephens from attending future performances until the accessibility problems described herein are resolved.
98. Robin Stephens suffered damages as a result of Defendants’ conduct. 99. Carrie Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Lucas from attending past and future performances until the accessibility problems described herein are resolved. 100. Carrie Ann Lucas suffered damages as a result of Defendants’ conduct. 101. Heather Rebekah Renee Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved. 102. Heather Rebekah Renee Lucas suffered damages as a result of Defendants’ conduct. 103. Adrianne Emily Monique Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’
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conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved.
104. Adrianne Emily Monique Lucas suffered damages as a result of Defendants’ conduct.
105. Daniel Wilson has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Daniel Wilson has experienced accessibility problems described herein. Defendants’ conduct has deterred Mr. Wilson from attending future performances until the accessibility problems described herein are resolved.
106. Daniel James Wilson suffered damages as a result of Defendants’ conduct. 107. On information and belief, other CCDC members have attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. On information and belief, these other CCDC members have experienced accessibility problems described herein. On information and belief, Defendants’ conduct has deterred other CCDC members from attending future performances until the accessibility problems described herein are resolved. 108. On information and belief, other CCDC members have suffered damages as a result of Defendants’ conduct. 109. Plaintiff CCDC has members who attend performances at the Performing Arts Complex and who would like to attend performances at the Performing Arts Complex.
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110. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by public venues and theatres, like those owned and operated by Defendants.
111. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendants’ violations of the laws cited herein.
112. Defendants’ actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
113. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with the City in an attempt to secure non-discriminatory conditions at the Performing Arts Complex.
114. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to counseling members and others who have been injured by Defendants’ discrimination.
115. Defendants’ discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities. For example:
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a. parts of the Performing Arts Complex are inaccessible to individuals who use wheelchairs;
b. individuals who use wheelchairs are denied the opportunity to choose and purchase seats;
c. individuals who use wheelchairs are afforded lesser accommodations and services than the non-disabled;
d. individuals who use wheelchairs must argue with Defendants’ employees to obtain seating;
e. individuals with visual and hearing impairments are denied access to ticketing information;
f. individuals with hearing impairments are denied access to effective communication.
116. Defendants’ actions deter some persons with disabilities from attending events at the Performing Arts Complex,
117. Defendants’ discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
118. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendants.
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119. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendants’ discriminatory conduct alleged in this Complaint and will be redressed by the relief requested in it.
120. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendants’ discrimination.
121. The elimination of discrimination, such as that of Defendants, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
122. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
123. Defendants acted intentionally or with reckless or callous indifference to the federally protected rights of others.
FIRST CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Americans with Disabilities Act)
124. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
125. Title II of the ADA prohibits public entities from denying, on the basis of disability, the benefits of the services, programs, or activities of the public entity, or from subjecting persons with disabilities to discrimination. 42 U.S.C. § 12132.
126. The City and County of Denver is a public entity covered by the ADA. 42 U.S.C. § 12131(1).
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127. Defendant has violated the ADA by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication.
128. Defendant’s violations of the ADA have harmed Plaintiffs. SECOND CLAIM FOR RELIEF
(Against City and County of Denver: Violation of Rehabilitation Act) 129. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 130. The Rehabilitation Act prohibits recipients of federal financial assistance from denying, on the basis of disability, the benefits provided by the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794. 131. On information and belief, Defendant receives federal financial assistance. 132. Defendant has violated the Rehabilitation Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication. 133. Defendant’s violations of the Rehabilitation Act have harmed Plaintiffs.
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THIRD CLAIM FOR RELIEF (Against Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company,
Colorado Symphony Association: Americans with Disabilities Act)
134. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
135. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
136. Defendants Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company, Colorado Symphony Association all lease (or lease to), or operate places of public accommodation.
137. Defendants have violated the Americans with Disabilities Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication.
138. Defendants’ violations of the Americans with Disabilities Act have harmed Plaintiffs.
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FOURTH CLAIM FOR RELIEF (Against all Defendants: Colorado Anti-Discrimination Act) 139. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 140. The Colorado Anti-Discrimination Act prohibits any public facility of any kind from denying an individual or a group on the basis of disability equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. Colo. Rev. Stat. § 24-34-601. 141. Defendants -- in their ownership and/or operation of facilities at the Performing Arts Complex -- are all places of public accommodation as that term is defined in Colo. Rev. Stat. § 24-34-601(1). 142. The Colorado Anti-Discrimination Act is to be construed consistently with the ADA and other federal civil rights statutes. 3 Colo. Code. Reg. 708.60.1(c). 143. Defendants have violated the Colorado Anti-Discrimination Act by denying individuals with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication. 144. Under the Colorado Anti-Discrimination Act, for every offense committed by each Defendant, each shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the persons aggrieved thereby. Colo. Rev. Stat. § 24-34-602.
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145. Defendants’ violations of the Colorado Anti-Discrimination Act have harmed Plaintiffs and CCDC’s members who have attempted to patronize the Performing Arts Complex.
FIFTH CLAIM FOR RELIEF (Against the City and County of Denver and the Denver Center for Performing Arts: Colorado
Consumer Protection Act) 146. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 147. The Colorado Consumer Protection Act (“CCPA”) requires that “[e]xcept in a class action, any person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice . . . shall be liable in the amount equal to the sum of . . .[t]hree times the actual damages sustained or two hundred and fifty dollars, whichever is greater; and . . . [i]n the case of a successful action to enforce said liability the costs of the action together with reasonable attorney fees as determined by the court.” 148. Plaintiffs Laura Hershey, Robin Stephens, Carrie Ann Lucas, and Daniel Wilson seek recovery under the CCPA. 149. In addition, the CCPA provides, “[a]ny person who violates or causes another to violate any provision of [the CCPA] shall forfeit and pay to the general fund of this state a civil penalty of not more than two thousand dollars for each such violation [;] a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved; except that the maximum civil penalty shall not exceed one hundred thousand dollars for any related series of violations.” Colo. Rev. Stat. § 6-1-112(1). 150. Section 6-1-112 is enforceable by a plaintiff in a private cause of action.
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151. Under the CCPA, “[a] person engages in a deceptive trade practice when, in the course of such person’s business . . . such person:”
a. “[k]nowingly makes a false representation as to the characteristics . . . uses, alterations, or quantities of . . . services . . . ;
b. “[r]epresents that . . . services . . . are of a particular standard, quality or grade . . . if he knows or should know that they are of another;”
c. “[a]dvertises . . . services with intent not to sell them as advertised;” d. “[a]dvertises . . . services with intent not to supply reasonably expectable
public demand, unless the advertisement discloses a limitation of quantity;” e. “[e]mploys ‘bait and switch’ advertising, which is advertising accompanied by an effort to sell . . .services . . .other than those advertised or on terms other than those advertised and which is also accompanied by [the] following practice . . . demonstrating defective . . . services which are unusable or impractical for the purposes set forth in the advertisement; and f. “[f]ails to disclose material information concerning . . .services . . . which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction. Colo. Rev. Stat. § 6-1-105(1).
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152. Defendants the City and DCPA are responsible for advertising the availability of wheelchair seating at the Performing Arts Complex venues.
153. The City and DCPA, through promotional brochures, Internet websites, and representations of box office personnel, advertise and/or claim that DCPA provides “wheelchair seating” or “accessible seating” and depict the wheelchair seating areas in various maps and diagrams and advertise that the Performing Arts Complex is “fully accessible” to individuals with disabilities.
154. The DCPA box office is Defendants’ agent with regard to the sales of tickets for concerts at DCPA.
155. Defendants continue to advertise that they sell tickets for “wheelchair seating” or “accessible seating” in the designated areas. The City has been placed on notice that it has been falsely advertising that wheelchair or accessible seating is available in the advertised locations at Performing Arts Complex venues; nevertheless, Defendants continue to advertise the availability of wheelchair seating with full knowledge that such seating will be unavailable at the concert, often as a result of Defendants’ actions. Like all reserved seating ticket holders, Plaintiffs Laura Hershey, Robin Stephens, Carrie Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson were led to believe and did believe that there would be a level seating areas, with appropriate companion seating, that could be accessed in a reasonable amount of time, that were of appropriate size and that were the seats they actually reserved. Upon arrival, Plaintiffs did not receive the seats they were promised.
PRAYER FOR RELIEF
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WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction. 2. That this Court issue an injunction ordering Defendants to comply with the ADA, the Rehabilitation Act, the Colorado Anti-Discrimination Act and the CCPA by providing appropriate, designated accessible wheelchair and companion seating locations in all of their venues, providing ticketing policies that ensure people who use wheelchairs get the seats they select, providing training to its employees on access issues, providing access to ticketing services, and otherwise bringing their services and facilities into compliance. 3. That this Court award compensatory damages to Plaintiffs. 4. That this Court award reasonable attorneys’ fees and costs. 5. That this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury. Dated: May 8, 2006
Respectfully submitted, /s Kevin W. Williams Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org
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Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 TTY: 303.595.9703 Facsimile: 303.595.9705 E-mail: arob@foxrob.com Address of Plaintiff Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Address of Laura Hershey and Robin Stephens 1466 South Lincoln Street Denver, CO 80210 Address of Plaintiffs Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas 5601 Yale Avenue Denver, CO 80222 Address of Daniel James Wilson 3700 E. Jewell Avenue # 104 Denver, CO 80210
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 Case 1:06-cv-00865-MSK-BNB Document 2 Filed 05/09/06 USDC Colorado Page 1 of 36
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson, by and through their attorneys, Kevin W. Williams, Legal Program Director of the Colorado Cross-Disability Coalition, and Fox & Robertson, P.C., hereby submit their Complaint for violations of the Americans with Disabilities Act, the Rehabilitation Act, the Colorado AntiDiscrimination Act, and the Colorado Consumer Protection Act.

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INTRODUCTION 1. Over fifteen years after Congress passed our nation’s landmark civil rights law for people with disabilities, Defendants -- which either own and/or operate performance venues at the Denver Performing Arts Complex and/or control ticket sales for wheelchair seating there -continue to discriminate against persons who use wheelchairs and other mobility devices. 2. On July 12, 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., establishing one of the most important civil rights law for people with disabilities in our country's history. 3. Congress explicitly stated that among the purposes of the ADA are:
a. “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;”
b. “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities, . . .;” and
c. “to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”
42 U.S.C. § 12101(b). 4. The ADA further clarified the Rehabilitation Act of 1973, which applies to the
City, because it receives federal financial assistance.
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5. In spite of this abundant lead time and the extensive publicity the ADA has received since 1990 and many more years after the passage of the Rehabilitation Act, Defendants continue to discriminate against people who use wheelchairs in ways that include but are not limited to failing to provide accessible seating to persons who use wheelchairs and other mobility devices and failing to properly train and educate their employees in the requirements of the ADA and related issues.
6. Unlike non-disabled patrons of the Performing Arts Center who can select their seating location in the price range they desire in advance, individuals who use wheelchairs are subjected to, among other problems, the following:
a. being told wheelchair seats are unavailable, when, in fact, they are; b. being sold tickets for seats that don’t exist or are blocked by equipment; c. being sold wheelchair seats that are inaccessible; d. being subjected to lengthy delays getting to their seats or not being able to
get there at all due to malfunctioning wheelchair lifts. 7. Defendants also discriminate against individuals with hearing and visual impairments by:
a. failing to provide interpreters for certain performances; b. failing to make their web sites accessible.
JURISDICTION
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8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado.
9. Venue is proper within this District pursuant to 28 U.S.C. § 1391. PARTIES
10. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies.
11. Laura Hershey is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Hershey is substantially limited in several major life activities, including walking and breathing, and requires the use of a motorized wheelchair for mobility. Laura Hershey is a CCDC member.
12. Robin Stephens is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Stephens is substantially limited in several major life activities, including walking and speaking, and requires the use of a motorized wheelchair for mobility. Robin Stephens is a CCDC member.
13. Carrie Ann Lucas is and was at all times material hereto a resident of Colorado residing at 5601 East Yale Avenue, Denver, Colorado 80222. Ms. Lucas is substantially limited in several major life activities, including walking, hearing, breathing and seeing. She requires the use of a motorized wheelchair for mobility, sign language interpreters for effective communication and screen enhancement software for reading. Carrie Lucas is a CCDC member.
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14. Plaintiff Heather Rebekah Renee Lucas is a CCDC member who is substantially impaired in several major life activities, including walking, speaking, seeing and hearing, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is fifteen years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Heather Rebekah Renee Lucas is a CCDC member.
15. Plaintiff Adrianne Emily Monique Lucas is a CCDC member who is substantially impaired in several major life activities, including walking and speaking, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is seven years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Adrianne Emily Monique Lucas is a CCDC member.
16. Daniel Wilson is and was at all times material hereto a resident of Colorado residing at 3700 East Jewel Avenue, Denver, Colorado 80210. Mr. Wilson is substantially limited in the major life activity of walking, and requires the use of a motorized scooter for mobility. Daniel Wilson is a CCDC member.
17. Defendant City and County of Denver (“City”) owns and operates the Denver Performing Arts Complex (“Performing Arts Complex”), and leases space in the Performing Arts Complex to the other Defendants in this case. The City, through contractual, leasing and licensing arrangements, rents venues and portions of the Performing Arts Complex to private entities for the presentation of various types of theatrical, musical and other events. The City, through contractual, leasing and licensing arrangements with the other Defendants in this case,
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provides tickets for wheelchair and companion seating at the venues at the Performing Arts Complex.
18. Defendant Denver Center for the Performing Arts (“DCPA”) is a Colorado nonprofit corporation, which, through contractual, leasing and other arrangements, provides theatrical, musical and other performances to the public at the Performing Arts Complex. DCPA is a lessee of the City and operates certain venues at the Performing Arts Complex. DCPA operates under two trade names, Denver Center Attractions (“DCA”) and Denver Centre Theatre Company (“DCTC”). DCPA, in conjunction with the City, is responsible for and controls ticketing policies for some of the venues at the Performing Arts Complex for the performances it provides.
19. Defendant Opera Colorado is a Colorado non-profit organization, incorporated to promote opera in Colorado. Through lease arrangements with the City, Opera Colorado promotes its operas in the Ellie Caulkins Opera House (“Opera House”). Prior to the opening of the Opera House, Opera Colorado leased the Temple Hoyne Buell Theatre (“Buell Theatre”) and Boettcher Concert Hall for its operas. Opera Colorado is a lessee of the City and operates certain venues at the Performing Arts Complex. Opera Colorado and the City are responsible for making wheelchair seating and companion seating for operas at the Performing Arts Complex available to the public and providing tickets therefor.
20. Defendant Colorado Ballet Company (“Colorado Ballet”) is a Colorado non-profit organization, which schedules, promotes and sells tickets for ballet performances at the Performing Arts Complex. Most ballet performances are now held in the Opera House, but
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previous ballets have been held in the Buell Theatre and the Boettcher Concert Hall. Colorado Ballet is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Ballet and the City are responsible for making wheelchair seating and companion seating for ballets at the Performing Arts Complex available to the public and providing tickets therefor.
21. Colorado Symphony Association is a Colorado non-profit organization, which schedules, promotes and sells tickets for symphony performances at the Performing Arts Complex. Most symphony performances are held in the Boettcher Concert Hall, but, on information and belief, symphony performances have been held in other venues at the Performing Arts Complex. Colorado Symphony Association is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Symphony Association and the City are responsible for making wheelchair seating and companion seating for symphony performances at the Performing Arts Complex available to the public and providing tickets therefor.
GENERAL ALLEGATIONS 22. According to its website, www.denvercenter.org, the DCPA was founded in 1972 and “is a showcase for live theatre, a nurturing ground for new plays, a preferred stop on the Broadway touring circuit, an award-winning multi-media production facility, a national training school for actors, and the site of a voice clinic and research facility.” The DCPA is the largest tenant of the Performing Arts Complex. The Performing Arts Complex is located at 14th and Curtis Streets and houses, among other theatres and auditoria, the Opera House, the Buell
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Theatre, the Boettcher Concert Hall, the Space Theatre, the Jones Theatre, the Stage Theatre, the Ricketson Theatre, and the Garner Galleria Theatre. The Performing Arts Complex also provides a parking garage and access to the parking garage for the Colorado Convention Center. DCPA’s primary focus is the presentation of live theatrical productions. It also houses film and television, voice research and education divisions. The Performing Arts Complex is 4-squareblock site owned and operated by the City and County of Denver that offers 11, 260 seats in 11 performance venues. The DCPA is the primary user of the theatres in the Complex, although several arts organizations, such as the Colorado Symphony, Opera Colorado and The Colorado Ballet also call the Complex home.
23. The City was responsible for much of the design and construction of the theaters and auditoria at the Performing Arts Complex.
24. The City was also responsible for renovations to the buildings at the Performing Arts Complex. For example:
a. In or about 1990, the City was responsible for the design and construction of the Temple Hoyne Buell Theatre.
b. In or about 2005, the City was responsible for the complete renovation of the Quigg Newton Denver Municipal Auditorium into what is now the Ellie Caulkins Opera House.
c. On information and belief, the City was responsible for making renovations to the Boettcher Concert Hall after 1992.
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25. The Opera House is the venue at which Opera Colorado and the Colorado Ballet hold performances.
26. The Opera House was designed and constructed in 2004-2005 and opened its doors to the public in or about October of 2005.
27. The Opera House is housed inside the Quigg Newton Denver Municipal Auditorium (“Auditorium”). The entire inside of the Auditorium was renovated and reconstructed. Only the exterior shell of the Auditorium remains.
28. The Opera House provides approximately 2,268 seats on five levels for viewing of performances. From the stage upward, there is the Orchestra level, the Parterre level (raised section behind the orchestra), the Mezzanine level (first balcony), the Loge level (second balcony), and the Balcony level (third balcony). The Opera House has designated wheelchair seating in the orchestra section that is on a slope and is not level. It is unknown how many wheelchair and companion seats are available, because the location and availability of wheelchair seating has changed since the opening of the facility and some seats are removable, making them potential wheelchair seating locations.
29. The Opera House provides some wheelchair seating locations that are segregated from their respective companion seats.
30. Because the location of wheelchair seating locations has continued to change at the Opera House, it is difficult or impossible for patrons who need these seats to know what is available.
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31. People who use wheelchairs have ordered tickets for specific wheelchair seating locations at Opera House and when they arrived at the performance, found those seats did not exist or were moved to another location.
32. The only access to the orchestra level of the Opera House for people who use wheelchairs or mobility devices is via a wheelchair lift. The lifts are hard to find, very cramped and malfunction repeatedly.
33. On information and belief, there is not adequate emergency egress at the Opera House for individuals who use wheelchairs from the orchestra level.
34. During a tour of the Opera House in the fall of 2005, one of the lifts malfunctioned, and Ms. Lucas was stuck in it for approximately fifteen minutes.
35. In or about October of 2005, Ms. Lucas and her two daughters attended a performance of the ballet, “Sleeping Beauty” at the Opera House. It took at least twenty minutes for all three of them to use the lift to access their seats in the orchestra level. When they arrived at their seats, the seating locations were not level and on a steep slope. During the performance, Ms. Lucas kept sliding out of her wheelchair. Adrianne Lucas was choking on the strap to hold her in her wheelchair because of the slope.
36. Ms. Lucas complained to a manager who attempted to have her and her children moved to wheelchair seats farther from the stage. Ms. Lucas and her daughter have visual impairments, which require them to be close to the stage to see. They reserved seats close to the stage for this reason. The manager then tried to have them move to another seating section where they would be lined up in a row, each behind the other. Ms. Lucas would not have been
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able to attend to or communicate with her daughters and the seats they wanted Ms. Lucas and her daughters to move to did not have adequate maneuvering clearances to get in and out of the seats.
37. At intermission, Ms. Lucas and her daughters attempted to access one of the lifts. Ms. Lucas pressed the call button. Lights went off, but the lift did not come. She tried seven times, but the lift did not come until an usher went up to retrieve it. This took approximately eight minutes. Ms. Lucas got in the lift, waited for the doors to close, and pushed the button. The lights on the button inside the lift came on, but the lift didn’t move. After several minutes all the button lights flashed, then the doors opened. Ms. Lucas decided to get out. Not wanting to be trapped in the lift as she was before, Ms. Lucas decided to try the lift on the other side.
38. The route leading from one lift to the other was not level, and Ms. Lucas’ wheelchair slid into the backs of the seats to her left (toward the stage) due to the excessive cross slope of the aisle.
39. The other lift worked, but by the time Ms. Lucas and her daughters all got up the lift, intermission was over, and there was no time to return. They left without seeing the second act.
40. In or about December of 2005, Ms. Lucas and her two daughters attended a performance of “The Nutcracker” at the Opera House. They were not able sit in the wheelchair seats they purchased. The configuration of wheelchair seating was different from when she attended before and from the seating plan from which she chose her seats. There was no longer a route between the two lifts. There were seats blocking access between the lifts.
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41. When Ms. Lucas attended the December 27, 2005 performance of “The Nutcracker,” she needed to pick up tickets at the “will call” window. The “will call” window was not accessible to Ms. Lucas.
42. In or about November of 2005, Daniel Wilson purchased wheelchair and companion seating tickets for the opera “Carmen” at the Opera House. When Mr. Wilson and his companion arrived, they discovered their seats were separated by a pillar. Mr. Wilson did not want to sit separated from his companion. They were able to change seating locations and be able to sit next to each other because there was an unsold seat. When Mr. Wilson transferred from his scooter to a seat, and without Mr. Wilson’s permission, an employee took his scooter from him.
43. Mr. Wilson has been deterred from ordering tickets for wheelchair seats in the orchestra level because of the presence of the malfunctioning wheelchair lifts.
44. Plaintiff Laura Hershey attempted to purchase tickets for the Opera “Carmen” at the Opera House for her and her mother for her mother’s birthday. Initially, she was told the only wheelchair seats that were available were in the orchestra level, the most expensive section. At that time, she wanted seats in a less expensive section. Ms. Hershey was given different information regarding the availability of wheelchair seating each time she called Opera Colorado. She eventually was able to purchase seats in the orchestra level.
45. Ms. Hershey, her mother and brother attended the opera “Carmen” at the Ellie Caulkins Opera House in or about November of 2005.
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46. When she arrived, Ms. Hershey was unable to find the lifts to the orchestra level because of inadequate signage or usher assistance.
47. When she finally got to the lift, Ms. Hershey could not access the lift because of the flow of patrons moving down the stairs.
48. When Ms. Hershey finally entered the lift, it was cramped, and she could not operate the controls. Her brother was able to climb into the lift with her, but there was very little room. Her mother took the stairs.
49. An usher in the orchestra level showed Ms. Hershey to where her ticketed seats were, but there was no Figaro system (screens that provide translation of the opera libretto) that she could see from her seating location. She asked for a manager. When the manager arrived, he said they were not in the wheelchair seating section, although Ms. Hershey’s tickets were for these seats, and the tickets had the word “accessible” printed on them. The manager suggested that they move to another set of accessible seats. Fortunately, these seats were not sold, and Ms. Hershey was able to sit with her family.
50. Ms. Hershey’s mother, who was seated in a companion seat, had difficulty seeing the Figaro screen from her companion seat.
51. Wheelchair seating violations of the ADA at the Ellie include, without limitation, the following:
a. the Orchestra level is “raked,” meaning that the seats, including the wheelchair seating locations are on a slope and are not level;
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b. some wheelchair seating locations are separated from companion seats by pillars;
c. the orchestra level is not accessible to individuals who use wheelchairs via an elevator; instead, the only access to the orchestra level for individuals who use wheelchairs is via two lifts on either side of the orchestra level, which malfunction often and take too long to operate;
d. there is no accessible route connecting wheelchair seating locations to the lifts in the orchestra level;
e. the lifts will not accommodate some individuals who use wheelchairs and mobility devices, rendering the orchestra level inaccessible to them;
f. the lifts are difficult to operate and provide no instruction; g. the controls on the lifts are not operable by some individuals who use
wheelchairs or mobility devices; h. the lifts are difficult to find; on information and belief, there is not
appropriate signage to indicate to individuals who use wheelchairs or mobility devices where they are located; i. depending on the size of the wheelchair or mobility device, there is insufficient room in the lift for any other passengers; j. the new lifts have malfunctioned repeatedly when CCDC members who use wheelchairs have attempted to use them;
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k. the lifts are difficult to enter for individuals who use wheelchairs, because one must turn around an obstruction to enter them and because of the pedestrian traffic flow on the stairs adjacent to the lifts;
l. the lifts are so slow that individuals who use wheelchairs cannot leave the orchestra level and return during intermissions before the performance begins;
m. wheelchair seats have been sold to individuals who use wheelchairs that have no captioning screens, known as “Figaros;”
n. individuals who use wheelchairs have had to change seating locations because they were sold “Accessible” seats that were not actually wheelchair seating locations;
o. companion seating in some wheelchair seating sections does not offer an equivalent view of the “Figaro” captioning screens;
p. the aisle leading to the front row of the orchestra level where wheelchair seating locations is designated is narrow, and there is no turn around space for an individual who uses a wheelchair;
q. people who use wheelchairs are unable to sit in the seats they have chosen and purchased.
52. On information and belief, Defendants or their agents have made some improvements to wheelchair seating in the orchestra level, but many of the problems listed above still exist.
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53. Tickets for performances at the Opera House are sold through Opera Colorado, Colorado Ballet, Ticketmaster, Ticketswest, and other ticket-selling outlets. Defendants responsible for providing wheelchair and companion seating tickets for the Opera House have failed to convey the information necessary to enable individuals who use wheelchairs and their companions to have similar choices for seating to the non-disabled public, resulting in patrons who use wheelchairs being sold the wrong seats or not being able to select their seats in advance.
54. CCDC has attempted to educate the City about the accessibility problems at the Opera House and to reach an amicable solution. Those attempts have not been successful.
55. The Buell Theatre was constructed in 1991. It has approximately 2,884 seats. Of these, approximately 109 removable seats are “designated” as accessible to persons who use wheelchairs.
56. Some of the sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
57. Some of the best seating sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
58. CCDC members who use wheelchairs have attempted to purchase wheelchair seats at the Buell Theatre and, upon arrival at the theater, discovered those seats were unavailable because of camera, sound or lighting equipment blocking the section.
59. On or about October 24, 2004, Carrie Ann Lucas bought tickets for the ballet “Dracula” for the matinee performance for herself, her daughter and an attendant, which was presented at the Buell Theatre. Ms. Lucas called TicketMaster on Saturday to make sure tickets
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were available. She found out there were wheelchair seats available on the orchestra level. Ms. Lucas went to the Buell Theatre box office on Sunday before the performance to purchase tickets. There were numerous barriers to access.
60. When Ms. Lucas went to purchase tickets, there was a carpet and red velvet ropes blocking access to the window where tickets are purchased. Ms. Lucas had to have someone remove the ropes in order to access the window.
61. When Ms. Lucas requested tickets in the wheelchair seating sections in the orchestra level, she was told none were available. She wanted to sit in the orchestra level seats, but was denied this opportunity. The ticketing agent first said she was having difficulty finding any accessible seats. She was unable to get accessible seating tickets to print. Ms. Lucas was never able to purchase tickets. Instead, the ticketing agent gave Ms. Lucas tickets, but they were for the mezzanine level.
62. When Ms. Lucas and her companions entered the Buell Theatre, Ms. Lucas discovered that there was no one sitting in the orchestra level, section B wheelchair seating box. They went to their seats on the mezzanine level. When they arrived at their seats, Ms. Lucas was unable to sit in her assigned seat because there was an instrument panel there. They had to sit elsewhere.
63. Ms. Lucas experienced problems with access when she, her daughter and an attendant went to see the ballet “Peter Pan” at the Buell Theatre during the previous spring as well. Ms. Lucas purchased wheelchair seats on the orchestra level, but the boxes in orchestra sections B and D are not long enough from front to back to accommodate Ms. Lucas’
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wheelchair. She could not fit inside the box. As a result, she requested to be moved. The ushers did move Ms. Lucas’ party into a box in the orchestra C section, but that box had camera equipment in it. As a result, the box itself and views from it were obstructed.
64. Other CCDC members have had difficulty discerning what wheelchair seating locations are available at the Buell Theatre and obtaining the wheelchair seating locations they would like.
65. On information and belief, the Buell Theatre routinely blocks off wheelchair seating areas with sound, lighting, and other equipment, even though those seating locations are advertised as available for sale.
66. Defendants who are responsible for providing tickets for wheelchair seats at the Buell Theatre have failed to provide adequate access to those seats, have sold tickets for seats that were blocked and otherwise have discriminated in their ticketing policies.
67. On or about May 5, 2006, Ms. Lucas, who is deaf and enjoys performances using a sign language interpreter, called the DCPA box office using a TTY to inquire about tickets to the upcoming performance of “Movin’ Out” at the Buell Theatre. She requested wheelchair accessible seats and a sign language interpreter. The box office employee informed her that there was “no signed performance” of “Movin’ Out.” The box office employee asked Ms. Lucas if she was looking for tickets for herself and an interpreter. Ms. Lucas informed that she was requesting that DCPA provide an interpreter. The employee informed that the DCPA does not provide interpreters, that this was up to the individual Broadway touring shows, and this
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production chose not to provide an interpreter. Ms. Lucas requested that a supervisor call her. At the time of this filing, she has not yet received a call.
68. CCDC has attempted to educate the City about the accessibility problems at the Buell Theatre and to reach an amicable solution. Those attempts have not been successful.
69. Boettcher Concert Hall was constructed in approximately 1978 and has approximately 2,634 seats. It provides only seven wheelchair and seven companion seats at the highest level of the Concert Hall, although there are conflicting reports about the precise number and location. Boettcher Concert Hall hosts the Colorado Symphony.
70. In January, 2006, Plaintiffs Hershey and Stephens attempted to get tickets for an April 5, 2006 Itzhak Perlman concert at Boettcher Concert Hall. On January 11, 2006, after receiving a special promotional e-mail with the Symphony's electronic newsletter, Ms. Hershey called to order tickets. (This was two days before tickets went on sale to the general public on January 13, 2006.) She was told by a person at the Boettcher Concert Hall box office that seats were available, but all of the wheelchair seats had been sold to season ticket holders. Ms. Hershey requested that the City investigate whether they would inquire of the seven subscribers who had purchased those seats if they actually needed those seats. The box office did not do so.
71. On January 13, 2006, the day that tickets went on sale to the general public for the Itzhak Perlman concert, Ms. Hershey again called the Boettcher Concert Hall box office to inquire about purchasing tickets. Again, she was told that while some tickets were still available, none of these were for wheelchair-accessible seats. Knowing that the entire concert would sell out quickly, Ms. Hershey requested a reasonable accommodation: She purchased two non-
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wheelchair seats in the highest price range and asked the City to find two wheelchair seating locations. The City refused.
72. Later, additional seating was added to Boettcher Concert Hall in an area where wheelchair seats have been provided at other events, known as the “crossover aisles,” but none of the added seats were wheelchair accessible. Ms. Hershey requested wheelchair seats in the added seating section, but the City refused.
73. Individuals who use wheelchairs have sat in the crossover aisles in the past. 74. After several letters were exchanged with CCDC, Ms. Hershey and Ms. Stephens eventually were accommodated. 75. When Ms. Hershey and Ms. Stephens attended the Itzhak Perlman concert, they were seated in a section that the City previously had informed them would cause a fire code violation. There were other people in wheelchairs seated in the same section. 76. On or about October 25, 2005, Carrie Ann Lucas attended the Colorado Bar swearing-in ceremony at the Boettcher Concert Hall. All new lawyers who had been admitted to the practice of law in Colorado after the July, 2005 bar exam were invited to attend as well as friends, family and other members of the bar. 77. DCPA told Ms. Lucas she was required to sit in the wheelchair seating section high above where the rest of the inductees were seated. She disagreed. 78. Ms. Lucas was seated on the crossover aisle in between orchestra 1 and orchestra 2, see Exh. 1 attached hereto, alone with her sign language interpreter. She was segregated from
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her peers. Ms. Lucas had to argue for a very long time to have her interpreter seated in front of her, rather than seated directly next to her where Ms. Lucas would have been unable to see her.
79. Other inductees were permitted to sit with their friends and family, but Ms. Lucas was not allowed to. She could not sit with her children.
80. All of the people attending the event were seated in rows closest to the stage, except people attending the event who use wheelchairs who were relegated to the very top rows of the Concert Hall. They were segregated from the rest of the audience by many empty rows of seats, and it was difficult to hear.
81. CCDC has attempted to educate the City about the accessibility problems at the Boettcher Concert Hall and to reach an amicable solution. Through correspondence, the City informed CCDC that it cannot expand wheelchair seating into the crossover aisle because it would create fire safety issues, although seating for non-disabled patrons has been provided there. On or about April 26, 2006, CCDC received a letter, informing that the City intends to install additional wheelchair seating at the Boettcher Concert Hall in the crossover aisles. The precise deadline is unknown. However, rather than installing the wheelchair and companion seating areas in the crossover aisle between orchestra 1 and orchestra 2, the City proposes to install them in the crossover aisle between orchestra 2 and orchestra 3. As can be seen in Exh. 1, the crossover aisle between orchestra 2 and orchestra 3 is much farther from the stage. On information and belief, the City can install wheelchair and companion seating on the crossover aisle between orchestra 1 and orchestra 2, providing people who use wheelchairs a better view of the stage and differing choices of admission prices than will be provided from the crossover aisle
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between orchestra 2 and orchestra 3. CCDC requested that the City do this; the City has not yet responded.
82. On information and belief, the Stage Theatre provides more than fifty seats. On information and belief, there is an insufficient number of wheelchair and companion seats available in the Stage Theatre.
83. On information and belief, there is inadequate wheelchair seating in other theatres in the Performing Arts Complex.
84. In or about 2005, DCPA closed its 14th Street box office and moved it to a location inside the Helen Bonfils Theatre Complex inside the Performing Arts Complex. The service counter at this box office is far too high for persons in wheelchairs to use.
85. Although the DCPA web site claims there is accessible parking on every level of the Performing Arts Complex parking garage, the parking garage provides accessible parking spaces and van accessible parking spaces on the third, fourth and fifth levels. Van accessible parking is only available on the sixth level. There is not adequate signage directing people with disabilities to these levels. On information and belief, upon entry into the garage prior to performances, employees direct drivers to park on the top level first. This level has no accessible parking.
86. The general public may purchase tickets for any performance at the DCPA on the internet. Those needing wheelchair seating are required to contact the DCPA box office.
87. Colorado Ballet provides no TTY number on its web site for reserving tickets. 88. Opera Colorado provides no TTY number on its web site for reserving tickets.
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89. Colorado Symphony Association provides no TTY number on its web site for reserving tickets.
90. The DCPA web site, http://denvercenter.org/page.cfm?id=23683064, claims, “The Denver Center for Performing Arts is fully accessible to persons of all abilities and offers services for patrons in wheelchairs and with hearing and sight impairments.”
91. The DCPA web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
92. The Opera Colorado web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
93. The Colorado Ballet Company web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
94. The Colorado Symphony Association web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
95. Laura Hershey has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Hershey has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Hershey from attending future performances until the accessibility problems described herein are resolved.
96. Laura Hershey suffered damages as a result of Defendants’ conduct. 97. Robin Stephens has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms.
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Stephens has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Stephens from attending future performances until the accessibility problems described herein are resolved.
98. Robin Stephens suffered damages as a result of Defendants’ conduct. 99. Carrie Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Lucas from attending past and future performances until the accessibility problems described herein are resolved. 100. Carrie Ann Lucas suffered damages as a result of Defendants’ conduct. 101. Heather Rebekah Renee Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved. 102. Heather Rebekah Renee Lucas suffered damages as a result of Defendants’ conduct. 103. Adrianne Emily Monique Lucas has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’
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conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved.
104. Adrianne Emily Monique Lucas suffered damages as a result of Defendants’ conduct.
105. Daniel Wilson has attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. Daniel Wilson has experienced accessibility problems described herein. Defendants’ conduct has deterred Mr. Wilson from attending future performances until the accessibility problems described herein are resolved.
106. Daniel James Wilson suffered damages as a result of Defendants’ conduct. 107. On information and belief, other CCDC members have attended performances at the DCPA and would like to attend future performances there if the accessibility problems described herein are resolved. On information and belief, these other CCDC members have experienced accessibility problems described herein. On information and belief, Defendants’ conduct has deterred other CCDC members from attending future performances until the accessibility problems described herein are resolved. 108. On information and belief, other CCDC members have suffered damages as a result of Defendants’ conduct. 109. Plaintiff CCDC has members who attend performances at the Performing Arts Complex and who would like to attend performances at the Performing Arts Complex.
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110. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by public venues and theatres, like those owned and operated by Defendants.
111. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendants’ violations of the laws cited herein.
112. Defendants’ actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
113. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with the City in an attempt to secure non-discriminatory conditions at the Performing Arts Complex.
114. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to counseling members and others who have been injured by Defendants’ discrimination.
115. Defendants’ discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities. For example:
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a. parts of the Performing Arts Complex are inaccessible to individuals who use wheelchairs;
b. individuals who use wheelchairs are denied the opportunity to choose and purchase seats;
c. individuals who use wheelchairs are afforded lesser accommodations and services than the non-disabled;
d. individuals who use wheelchairs must argue with Defendants’ employees to obtain seating;
e. individuals with visual and hearing impairments are denied access to ticketing information;
f. individuals with hearing impairments are denied access to effective communication.
116. Defendants’ actions deter some persons with disabilities from attending events at the Performing Arts Complex,
117. Defendants’ discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
118. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendants.
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119. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendants’ discriminatory conduct alleged in this Complaint and will be redressed by the relief requested in it.
120. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendants’ discrimination.
121. The elimination of discrimination, such as that of Defendants, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
122. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
123. Defendants acted intentionally or with reckless or callous indifference to the federally protected rights of others.
FIRST CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Americans with Disabilities Act)
124. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
125. Title II of the ADA prohibits public entities from denying, on the basis of disability, the benefits of the services, programs, or activities of the public entity, or from subjecting persons with disabilities to discrimination. 42 U.S.C. § 12132.
126. The City and County of Denver is a public entity covered by the ADA. 42 U.S.C. § 12131(1).
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127. Defendant has violated the ADA by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication.
128. Defendant’s violations of the ADA have harmed Plaintiffs. SECOND CLAIM FOR RELIEF
(Against City and County of Denver: Violation of Rehabilitation Act) 129. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 130. The Rehabilitation Act prohibits recipients of federal financial assistance from denying, on the basis of disability, the benefits provided by the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794. 131. On information and belief, Defendant receives federal financial assistance. 132. Defendant has violated the Rehabilitation Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication. 133. Defendant’s violations of the Rehabilitation Act have harmed Plaintiffs.
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THIRD CLAIM FOR RELIEF (Against Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company,
Colorado Symphony Association: Americans with Disabilities Act)
134. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
135. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
136. Defendants Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company, Colorado Symphony Association all lease (or lease to), or operate places of public accommodation.
137. Defendants have violated the Americans with Disabilities Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication.
138. Defendants’ violations of the Americans with Disabilities Act have harmed Plaintiffs.
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FOURTH CLAIM FOR RELIEF (Against all Defendants: Colorado Anti-Discrimination Act) 139. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 140. The Colorado Anti-Discrimination Act prohibits any public facility of any kind from denying an individual or a group on the basis of disability equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. Colo. Rev. Stat. § 24-34-601. 141. Defendants -- in their ownership and/or operation of facilities at the Performing Arts Complex -- are all places of public accommodation as that term is defined in Colo. Rev. Stat. § 24-34-601(1). 142. The Colorado Anti-Discrimination Act is to be construed consistently with the ADA and other federal civil rights statutes. 3 Colo. Code. Reg. 708.60.1(c). 143. Defendants have violated the Colorado Anti-Discrimination Act by denying individuals with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, and failing to provide effective means of communication. 144. Under the Colorado Anti-Discrimination Act, for every offense committed by each Defendant, each shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the persons aggrieved thereby. Colo. Rev. Stat. § 24-34-602.
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145. Defendants’ violations of the Colorado Anti-Discrimination Act have harmed Plaintiffs and CCDC’s members who have attempted to patronize the Performing Arts Complex.
FIFTH CLAIM FOR RELIEF (Against the City and County of Denver and the Denver Center for Performing Arts: Colorado
Consumer Protection Act) 146. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 147. The Colorado Consumer Protection Act (“CCPA”) requires that “[e]xcept in a class action, any person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice . . . shall be liable in the amount equal to the sum of . . .[t]hree times the actual damages sustained or two hundred and fifty dollars, whichever is greater; and . . . [i]n the case of a successful action to enforce said liability the costs of the action together with reasonable attorney fees as determined by the court.” 148. Plaintiffs Laura Hershey, Robin Stephens, Carrie Ann Lucas, and Daniel Wilson seek recovery under the CCPA. 149. In addition, the CCPA provides, “[a]ny person who violates or causes another to violate any provision of [the CCPA] shall forfeit and pay to the general fund of this state a civil penalty of not more than two thousand dollars for each such violation [;] a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved; except that the maximum civil penalty shall not exceed one hundred thousand dollars for any related series of violations.” Colo. Rev. Stat. § 6-1-112(1). 150. Section 6-1-112 is enforceable by a plaintiff in a private cause of action.
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151. Under the CCPA, “[a] person engages in a deceptive trade practice when, in the course of such person’s business . . . such person:”
a. “[k]nowingly makes a false representation as to the characteristics . . . uses, alterations, or quantities of . . . services . . . ;
b. “[r]epresents that . . . services . . . are of a particular standard, quality or grade . . . if he knows or should know that they are of another;”
c. “[a]dvertises . . . services with intent not to sell them as advertised;” d. “[a]dvertises . . . services with intent not to supply reasonably expectable
public demand, unless the advertisement discloses a limitation of quantity;” e. “[e]mploys ‘bait and switch’ advertising, which is advertising accompanied by an effort to sell . . .services . . .other than those advertised or on terms other than those advertised and which is also accompanied by [the] following practice . . . demonstrating defective . . . services which are unusable or impractical for the purposes set forth in the advertisement; and f. “[f]ails to disclose material information concerning . . .services . . . which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction. Colo. Rev. Stat. § 6-1-105(1).
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152. Defendants the City and DCPA are responsible for advertising the availability of wheelchair seating at the Performing Arts Complex venues.
153. The City and DCPA, through promotional brochures, Internet websites, and representations of box office personnel, advertise and/or claim that DCPA provides “wheelchair seating” or “accessible seating” and depict the wheelchair seating areas in various maps and diagrams and advertise that the Performing Arts Complex is “fully accessible” to individuals with disabilities.
154. The DCPA box office is Defendants’ agent with regard to the sales of tickets for concerts at DCPA.
155. Defendants continue to advertise that they sell tickets for “wheelchair seating” or “accessible seating” in the designated areas. The City has been placed on notice that it has been falsely advertising that wheelchair or accessible seating is available in the advertised locations at Performing Arts Complex venues; nevertheless, Defendants continue to advertise the availability of wheelchair seating with full knowledge that such seating will be unavailable at the concert, often as a result of Defendants’ actions. Like all reserved seating ticket holders, Plaintiffs Laura Hershey, Robin Stephens, Carrie Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson were led to believe and did believe that there would be a level seating areas, with appropriate companion seating, that could be accessed in a reasonable amount of time, that were of appropriate size and that were the seats they actually reserved. Upon arrival, Plaintiffs did not receive the seats they were promised.
PRAYER FOR RELIEF
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WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction. 2. That this Court issue an injunction ordering Defendants to comply with the ADA, the Rehabilitation Act, the Colorado Anti-Discrimination Act and the CCPA by providing appropriate, designated accessible wheelchair and companion seating locations in all of their venues, providing ticketing policies that ensure people who use wheelchairs get the seats they select, providing training to its employees on access issues, providing access to ticketing services, and otherwise bringing their services and facilities into compliance. 3. That this Court award compensatory damages to Plaintiffs. 4. That this Court award reasonable attorneys’ fees and costs. 5. That this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury. Dated: May 8, 2006
Respectfully submitted, /s Kevin W. Williams Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org
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Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 TTY: 303.595.9703 Facsimile: 303.595.9705 E-mail: arob@foxrob.com Address of Plaintiff Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Address of Laura Hershey and Robin Stephens 1466 South Lincoln Street Denver, CO 80210 Address of Plaintiffs Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas 5601 Yale Avenue Denver, CO 80222 Address of Daniel James Wilson 3700 E. Jewell Avenue # 104 Denver, CO 80210
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 Case 1:06-cv-00865-LTB Document 25-2 Filed 07/12/2006 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
SECOND AMENDED COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson, by and through their attorneys, Kevin W. Williams, Legal Program Director of the Colorado Cross-Disability Coalition, and Fox & Robertson, P.C., hereby submit their Second Amended Complaint for violations of the Americans with Disabilities Act, the Rehabilitation Act, the Colorado Anti-Discrimination Act, and the Colorado Consumer Protection Act.

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INTRODUCTION 1. Over fifteen years after Congress passed our nation’s landmark civil rights law for people with disabilities, Defendants -- which either own and/or operate performance venues at the Denver Performing Arts Complex and/or control ticket sales for wheelchair seating there -continue to discriminate against persons who use wheelchairs and other mobility devices. 2. On July 12, 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., establishing one of the most important civil rights law for people with disabilities in our country's history. 3. Congress explicitly stated that among the purposes of the ADA are:
a. “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;”
b. “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities, . . .;” and
c. “to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”
42 U.S.C. § 12101(b). 4. The ADA further clarified the Rehabilitation Act of 1973, which applies to the
City, because it receives federal financial assistance.
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5. In spite of this abundant lead time and the extensive publicity the ADA has received since 1990 and many more years after the passage of the Rehabilitation Act, Defendants continue to discriminate against people who use wheelchairs in ways that include but are not limited to failing to provide accessible seating to persons who use wheelchairs and other mobility devices and failing to properly train and educate their employees in the requirements of the ADA and related issues.
6. Unlike non-disabled patrons of the Performing Arts Complex who can select their seating location in the price range they desire in advance, individuals who use wheelchairs are subjected to, among other problems, the following:
a. being told wheelchair seats are unavailable, when, in fact, they are; b. being sold tickets for seats that don’t exist or are blocked by equipment; c. being sold wheelchair seats that are inaccessible; d. being subjected to lengthy delays getting to their seats or not being able to
get there at all due to malfunctioning wheelchair lifts. 7. Defendants also discriminate against individuals with hearing and visual impairments by:
a. failing to provide interpreters for certain performances; b. failing to make their web sites accessible.
JURISDICTION
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8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado.
9. Venue is proper within this District pursuant to 28 U.S.C. § 1391. PARTIES
10. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies.
11. Laura Hershey is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Hershey is substantially limited in several major life activities, including walking and breathing, and requires the use of a motorized wheelchair for mobility. Laura Hershey is a CCDC member.
12. Robin Stephens is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Stephens is substantially limited in several major life activities, including walking and speaking, and requires the use of a motorized wheelchair for mobility. Robin Stephens is a CCDC member.
13. Carrie Ann Lucas is and was at all times material hereto a resident of Colorado residing at 5601 East Yale Avenue, Denver, Colorado 80222. Ms. Lucas is substantially limited in several major life activities, including walking, hearing, breathing and seeing. She requires the use of a motorized wheelchair for mobility, sign language interpreters for effective communication and screen enhancement software for reading. Carrie Lucas is a CCDC member.
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14. Plaintiff Heather Rebekah Renee Lucas is substantially impaired in several major life activities, including walking, speaking, seeing and hearing, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is fifteen years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Heather Rebekah Renee Lucas is a CCDC member.
15. Plaintiff Adrianne Emily Monique Lucas is substantially impaired in several major life activities, including walking and speaking, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is seven years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Adrianne Emily Monique Lucas is a CCDC member.
16. Daniel Wilson is and was at all times material hereto a resident of Colorado residing at 3700 East Jewel Avenue, Denver, Colorado 80210. Mr. Wilson is substantially limited in the major life activity of walking, and requires the use of a motorized scooter for mobility. Daniel Wilson is a CCDC member.
17. Defendant City and County of Denver (“City”) owns and operates facilities in the Denver Performing Arts Complex (“Performing Arts Complex”), and leases space in the Performing Arts Complex to the other Defendants in this case. The City, through contractual, leasing and licensing arrangements, rents venues and portions of the Performing Arts Complex to private entities for the presentation of various types of theatrical, musical and other events. The City, through contractual, leasing and licensing arrangements with the other Defendants in this case, provides tickets for wheelchair and companion seating at the venues at the Performing
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Arts Complex. On information and belief, the City also operates a web site, with the URL address, www.artscomplex.com.
18. Defendant Denver Center for the Performing Arts (“DCPA”) is a Colorado nonprofit corporation, which, through contractual, leasing and other arrangements, provides theatrical, musical and other performances to the public at the Performing Arts Complex. DCPA is a lessee of the City and operates certain venues at the Performing Arts Complex. DCPA operates under two trade names, Denver Center Attractions (“DCA”) and Denver Centre Theatre Company (“DCTC”). DCPA, in conjunction with the City, is responsible for and controls ticketing policies for some of the venues at the Performing Arts Complex for the performances it provides. DCPA operates a web site, with the URL address, www.denvercenter.org.
19. Defendant Opera Colorado is a Colorado non-profit organization, incorporated to promote opera in Colorado. Through lease arrangements with the City, Opera Colorado promotes its operas in the Ellie Caulkins Opera House (“Opera House”). Prior to the opening of the Opera House, Opera Colorado leased the Temple Hoyne Buell Theatre (“Buell Theatre”) and Boettcher Concert Hall for its operas. Opera Colorado is a lessee of the City and operates certain venues at the Performing Arts Complex. Opera Colorado and the City are responsible for making wheelchair seating and companion seating for operas at the Performing Arts Complex available to the public and providing tickets therefor. Opera Colorado operates a web site, with the URL address, www.operacolorado.org.
20. Defendant Colorado Ballet Company (“Colorado Ballet”) is a Colorado non-profit organization, which schedules, promotes and sells tickets for ballet performances at the
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Performing Arts Complex. Most ballet performances are now held in the Opera House, but previous ballets have been held in the Buell Theatre and the Boettcher Concert Hall. Colorado Ballet is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Ballet and the City are responsible for making wheelchair seating and companion seating for ballets at the Performing Arts Complex available to the public and providing tickets therefor. Colorado Ballet operates a web site, with the URL address, www.coloradoballet.org.
21. Colorado Symphony Association is a Colorado non-profit organization, which schedules, promotes and sells tickets for symphony performances at the Performing Arts Complex. Most symphony performances are held in the Boettcher Concert Hall, but, on information and belief, symphony performances have been held in other venues at the Performing Arts Complex. Colorado Symphony Association is a lessee of the City and operates certain venues at the Performing Arts Complex. Colorado Symphony Association and the City are responsible for making wheelchair seating and companion seating for symphony performances at the Performing Arts Complex available to the public and providing tickets therefor. Colorado Symphony Association operates a web site with the URL address, www.coloradosymphony.org.
GENERAL ALLEGATIONS 22. The City & County of Denver’s Theatres and Arenas Division owns and operates the three largest theatres in the Performing Arts Complex, the Ellie Caulkins Opera House, Boettcher Concert Hall and the Temple Hoyne Buell Theatre. The Performing Arts Complex also encompasses the cabaret-style Garner Galleria Theatre, the Tramway Theatre and the Helen
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Bonfils Theatre Complex, housing The Stage, Space, Ricketson and Jones theatres as well as the Donald R. Seawell Grand Ballroom - all managed and booked by The Denver Center for the Performing Arts.
23. According to its website, www.denvercenter.org, the DCPA was founded in 1972 and “is a showcase for live theatre, a nurturing ground for new plays, a preferred stop on the Broadway touring circuit, an award-winning multi-media production facility, a national training school for actors, and the site of a voice clinic and research facility.” The DCPA is the largest tenant of the Performing Arts Complex. DCPA’s primary focus is the presentation of live theatrical productions. It also houses film and television, voice research and education divisions.
24. The Performing Arts Complex is located at 14th and Curtis Streets and houses, among other theatres and auditoria, the Opera House, the Buell Theatre, the Boettcher Concert Hall, the Space Theatre, the Jones Theatre, the Stage Theatre, the Ricketson Theatre, and the Garner Galleria Theatre. The Performing Arts Complex also provides a parking garage and access to the parking garage for the Colorado Convention Center. The Performing Arts Complex is 4-square-block site owned and operated by the City and County of Denver that offers 11,260 seats in 11 performance venues. The DCPA is the primary user of the theatres in the Complex, although several arts organizations, such as the Colorado Symphony, Opera Colorado and The Colorado Ballet also call the Complex home.
25. The City was responsible for some of the design and construction of the theaters and auditoria at the Performing Arts Complex.
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26. The City was also responsible for renovations to the buildings at the Performing Arts Complex. For example:
a. In or about 1990, the City was responsible for the design and construction of the Temple Hoyne Buell Theatre.
b. In or about 2005, the City was responsible for the complete renovation of the Quigg Newton Denver Municipal Auditorium into what is now the Ellie Caulkins Opera House.
c. On information and belief, the City was responsible for making renovations to the Boettcher Concert Hall after 1992.
27. The Opera House is the venue at which Opera Colorado and the Colorado Ballet hold performances.
28. The Opera House was designed and constructed in 2004-2005 and opened its doors to the public in or about October of 2005.
29. The Opera House is housed inside the Quigg Newton Denver Municipal Auditorium (“Auditorium”). The entire inside of the Auditorium was renovated and reconstructed. Only the exterior shell of the Auditorium remains.
30. The Opera House provides approximately 2,268 seats on five levels for viewing of performances. From the stage upward, there is the Orchestra level, the Parterre level (raised section behind the orchestra), the Mezzanine level (first balcony), the Loge level (second balcony), and the Balcony level (third balcony). The Opera House has designated wheelchair seating in the orchestra section that is on a slope and is not level. It is unknown how many
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wheelchair and companion seats are available, because the location and availability of wheelchair seating has changed since the opening of the facility and some seats are removable, making them potential wheelchair seating locations.
31. The Opera House provides some wheelchair seating locations that are segregated from their respective companion seats.
32. Because the location of wheelchair seating locations has continued to change at the Opera House, it is difficult or impossible for patrons who need these seats to know what is available.
33. People who use wheelchairs have ordered tickets for specific wheelchair seating locations at Opera House and when they arrived at the performance, found those seats did not exist or were moved to another location.
34. The only access to the orchestra level of the Opera House for people who use wheelchairs or mobility devices is via a wheelchair lift. The lifts are hard to find, very cramped and malfunction repeatedly.
35. On information and belief, there is not adequate emergency egress at the Opera House for individuals who use wheelchairs from the orchestra level.
36. During a tour of the Opera House in the fall of 2005, one of the lifts malfunctioned, and Ms. Lucas was stuck in it for approximately fifteen minutes.
37. In or about October of 2005, Ms. Lucas and her two daughters attended a performance of the ballet, “Sleeping Beauty” at the Opera House. It took at least twenty minutes for all three of them to use the lift to access their seats in the orchestra level. When they arrived
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at their seats, the seating locations were not level and on a steep slope. During the performance, Ms. Lucas kept sliding out of her wheelchair. Adrianne Lucas was choking on the strap to hold her in her wheelchair because of the slope.
38. Ms. Lucas complained to a manager who attempted to have her and her children moved to wheelchair seats farther from the stage. Ms. Lucas and her daughter have visual impairments, which require them to be close to the stage to see. They reserved seats close to the stage for this reason. The manager then tried to have them move to another seating section where they would be lined up in a row, each behind the other. Ms. Lucas would not have been able to attend to or communicate with her daughters and the seats they wanted Ms. Lucas and her daughters to move to did not have adequate maneuvering clearances to get in and out of the seats.
39. At intermission, Ms. Lucas and her daughters attempted to access one of the lifts. Ms. Lucas pressed the call button. Lights went off, but the lift did not come. She tried seven times, but the lift did not come until an usher went up to retrieve it. This took approximately eight minutes. Ms. Lucas got in the lift, waited for the doors to close, and pushed the button. The lights on the button inside the lift came on, but the lift didn’t move. After several minutes all the button lights flashed, then the doors opened. Ms. Lucas decided to get out. Not wanting to be trapped in the lift as she was before, Ms. Lucas decided to try the lift on the other side.
40. The route leading from one lift to the other was not level, and Ms. Lucas’ wheelchair slid into the backs of the seats to her left (toward the stage) due to the excessive cross slope of the aisle.
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41. The other lift worked, but by the time Ms. Lucas and her daughters all got up the lift, intermission was over, and there was no time to return. They left without seeing the second act.
42. In or about December of 2005, Ms. Lucas and her two daughters attended a performance of “The Nutcracker” at the Opera House. They were not able sit in the wheelchair seats they purchased. The configuration of wheelchair seating was different from when she attended before and from the seating plan from which she chose her seats. There was no longer a route between the two lifts. There were seats blocking access between the lifts.
43. When Ms. Lucas attended the December 27, 2005 performance of “The Nutcracker,” she needed to pick up tickets at the “will call” window. The “will call” window was not accessible to Ms. Lucas.
44. In or about November of 2005, Daniel Wilson purchased wheelchair and companion seating tickets for the opera “Carmen” at the Opera House. When Mr. Wilson and his companion arrived, they discovered their seats were separated by a pillar. Mr. Wilson did not want to sit separated from his companion. They were able to change seating locations and be able to sit next to each other because there was an unsold seat. When Mr. Wilson transferred from his scooter to a seat, and without Mr. Wilson’s permission, an employee took his scooter from him.
45. Mr. Wilson has been deterred from ordering tickets for wheelchair seats in the orchestra level because of the presence of the malfunctioning wheelchair lifts.
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46. Plaintiff Laura Hershey attempted to purchase tickets for the Opera “Carmen” at the Opera House for her and her mother for her mother’s birthday. Initially, she was told the only wheelchair seats that were available were in the orchestra level, the most expensive section. At that time, she wanted seats in a less expensive section. Ms. Hershey was given different information regarding the availability of wheelchair seating each time she called Opera Colorado. She eventually was able to purchase seats in the orchestra level.
47. Ms. Hershey, her mother and brother attended the opera “Carmen” at the Ellie Caulkins Opera House in or about November of 2005.
48. When she arrived, Ms. Hershey was unable to find the lifts to the orchestra level because of inadequate signage or usher assistance.
49. When she finally got to the lift, Ms. Hershey could not access the lift because of the flow of patrons moving down the stairs.
50. When Ms. Hershey finally entered the lift, it was cramped, and she could not operate the controls. Her brother was able to climb into the lift with her, but there was very little room. Her mother took the stairs.
51. An usher in the orchestra level showed Ms. Hershey to where her ticketed seats were, but there was no Figaro system (screens that provide translation of the opera libretto) that she could see from her seating location. She asked for a manager. When the manager arrived, he said they were not in the wheelchair seating section, although Ms. Hershey’s tickets were for these seats, and the tickets had the word “accessible” printed on them. The manager suggested
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that they move to another set of accessible seats. Fortunately, these seats were not sold, and Ms. Hershey was able to sit with her family.
52. Ms. Hershey’s mother, who was seated in a companion seat, had difficulty seeing the Figaro screen from her companion seat.
53. Wheelchair seating violations of the ADA at the Ellie include, without limitation, the following:
a. the Orchestra level is “raked,” meaning that the seats, including the wheelchair seating locations are on a slope and are not level;
b. some wheelchair seating locations are separated from companion seats by pillars;
c. the orchestra level is not accessible to individuals who use wheelchairs via an elevator; instead, the only access to the orchestra level for individuals who use wheelchairs is via two lifts on either side of the orchestra level, which malfunction often and take too long to operate;
d. there is no accessible route connecting wheelchair seating locations to the lifts in the orchestra level;
e. the lifts will not accommodate some individuals who use wheelchairs and mobility devices, rendering the orchestra level inaccessible to them;
f. the lifts are difficult to operate and provide no instruction; g. the controls on the lifts are not operable by some individuals who use
wheelchairs or mobility devices;
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h. the lifts are difficult to find; on information and belief, there is not appropriate signage to indicate to individuals who use wheelchairs or mobility devices where they are located;
i. depending on the size of the wheelchair or mobility device, there is insufficient room in the lift for any other passengers;
j. the new lifts have malfunctioned repeatedly when CCDC members who use wheelchairs have attempted to use them;
k. the lifts are difficult to enter for individuals who use wheelchairs, because one must turn around an obstruction to enter them and because of the pedestrian traffic flow on the stairs adjacent to the lifts;
l. the lifts are so slow that individuals who use wheelchairs cannot leave the orchestra level and return during intermissions before the performance begins;
m. wheelchair seats have been sold to individuals who use wheelchairs that have no captioning screens, known as “Figaros;”
n. individuals who use wheelchairs have had to change seating locations because they were sold “Accessible” seats that were not actually wheelchair seating locations;
o. companion seating in some wheelchair seating sections does not offer an equivalent view of the “Figaro” captioning screens;
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p. the aisle leading to the front row of the orchestra level where wheelchair seating locations is designated is narrow, and there is no turn around space for an individual who uses a wheelchair;
q. people who use wheelchairs are unable to sit in the seats they have chosen and purchased.
54. On information and belief, Defendants or their agents have made some improvements to wheelchair seating in the orchestra level, but many of the problems listed above still exist.
55. Tickets for performances at the Opera House are sold through Opera Colorado, Colorado Ballet, Ticketmaster, Ticketswest, and other ticket-selling outlets. Defendants responsible for providing wheelchair and companion seating tickets for the Opera House have failed to convey the information necessary to enable individuals who use wheelchairs and their companions to have similar choices for seating to the non-disabled public, resulting in patrons who use wheelchairs being sold the wrong seats or not being able to select their seats in advance.
56. CCDC has attempted to educate the City about the accessibility problems at the Opera House and to reach an amicable solution. Those attempts have not been successful.
57. The Buell Theatre was constructed in 1991. It has approximately 2,884 seats. Of these, approximately 109 removable seats are “designated” as accessible to persons who use wheelchairs.
58. Some of the sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
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59. Some of the best seating sections designated for use by persons who use wheelchairs at the Buell Theatre are routinely blocked by camera, sound and lighting equipment.
60. CCDC members who use wheelchairs have attempted to purchase wheelchair seats at the Buell Theatre and, upon arrival at the theater, discovered those seats were unavailable because of camera, sound or lighting equipment blocking the section.
61. On or about October 24, 2004, Carrie Ann Lucas bought tickets for the ballet “Dracula” for the matinee performance for herself, her daughter and an attendant, which was presented at the Buell Theatre. Ms. Lucas called TicketMaster on Saturday to make sure tickets were available. She found out there were wheelchair seats available on the orchestra level. Ms. Lucas went to the Buell Theatre box office on Sunday before the performance to purchase tickets. There were numerous barriers to access.
62. When Ms. Lucas went to purchase tickets, there was a carpet and red velvet ropes blocking access to the window where tickets are purchased. Ms. Lucas had to have someone remove the ropes in order to access the window.
63. When Ms. Lucas requested tickets in the wheelchair seating sections in the orchestra level, she was told none were available. She wanted to sit in the orchestra level seats, but was denied this opportunity. The ticketing agent first said she was having difficulty finding any accessible seats. She was unable to get accessible seating tickets to print. Ms. Lucas was never able to purchase tickets in the orchestra level. Instead, the ticketing agent gave Ms. Lucas tickets, but they were for the mezzanine level.
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64. When Ms. Lucas and her companions entered the Buell Theatre, Ms. Lucas discovered that there was no one sitting in the orchestra level, section B wheelchair seating box. They went to their seats on the mezzanine level. When they arrived at their seats, Ms. Lucas was unable to sit in her assigned seat because there was an instrument panel there. They had to sit elsewhere.
65. Ms. Lucas experienced problems with access when she, her daughter and an attendant went to see the ballet “Peter Pan” at the Buell Theatre during the previous spring as well. Ms. Lucas purchased wheelchair seats on the orchestra level, but the boxes in orchestra sections B and D are not long enough from front to back to accommodate Ms. Lucas’ wheelchair. She could not fit inside the box. As a result, she requested to be moved. The ushers did move Ms. Lucas’ party into a box in the orchestra C section, but that box had camera equipment in it. As a result, the box itself and views from it were obstructed.
66. Other CCDC members have had difficulty discerning what wheelchair seating locations are available at the Buell Theatre and obtaining the wheelchair seating locations they would like.
67. On information and belief, the Buell Theatre routinely blocks off wheelchair seating areas with sound, lighting, and other equipment, even though those seating locations are advertised as available for sale.
68. Defendants who are responsible for providing tickets for wheelchair seats at the Buell Theatre have failed to provide adequate access to those seats, have sold tickets for seats that were blocked and otherwise have discriminated in their ticketing policies.
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69. On or about May 5, 2006, Ms. Lucas, who is deaf and enjoys performances using a sign language interpreter, called the DCPA box office using a TTY to inquire about tickets to the performance of “Movin’ Out” at the Buell Theatre. She requested wheelchair accessible seats and a sign language interpreter. The box office employee informed her that there was “no signed performance” of “Movin’ Out.” The box office employee asked Ms. Lucas if she was looking for tickets for herself and an interpreter. Ms. Lucas informed that she was requesting that DCPA provide an interpreter. The employee informed that the DCPA does not provide interpreters, that this was up to the individual Broadway touring shows, and this production chose not to provide an interpreter. Ms. Lucas requested that a supervisor call her. She never received a call back. “Movin’ Out” is no longer playing.
70. On or about June 29, 2006, Carrie Ann Lucas called the DCPA to inquire about having DCPA provide a qualified sign language interpreter for the November 11, 2006 performance of “Lion King.” Ms. Lucas has tickets for the November 11, 2006, performance for herself, her three daughters, two nephews and her sister. Ms. Lucas’ seats (for herself and two of her daughters who use wheelchairs) are in the orchestra level wheelchair seating Row S, Section E, and the rest of her family have seats elsewhere. She was instructed to call the box office. She did so and spoke with a woman named Shana. Ms. Lucas requested a qualified sign language interpreter who would be stationed at or near the front of the box where her seats are. Because of Ms. Lucas’ visual disability, she cannot see an interpreter on the stage from this seating location. Shana informed Ms. Lucas that there is already one performance that had interpreters and gave her the date, October 22, 2006. Ms. Lucas explained that she could not attend that
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interpreted performance because she and her family will be out of town, and because she and her daughter need an interpreter four to six feet away for effective communication, an interpreter on the stage would not work.
71. While they were on the phone, Shana informed Ms. Lucas that her manager was trying to contact an interpreting agency DCPA uses, Very Special Arts, to see if someone was available for that performance. She told Ms. Lucas that she could not guarantee that DCPA would provide an interpreter or that they could have the interpreter be between four and six feet from Ms. Lucas during the performance. Shana informed Ms. Lucas, “All we can do is the best we can do.”
72. Later during this telephone call, a man who identified himself as Don Burge, a manager, spoke to Ms. Lucas. He said her request would take some time, and the box office would need to call her back. Ms. Lucas repeated the details of her request for accommodation. Ms. Lucas spent approximately forty minutes on the phone with the DCPA box office.
73. Later on June 29, 2006, Don Burge left Ms. Lucas a voice mail message. He informed her that DCPA will not provide an interpreter on November 11 (the performance for which she has tickets) and instead, Mr. Burge suggested she go to the October 22, 2006 matinee performance. He also said that during the performance, characters come out into the audience, which he believes will interfere with putting an interpreter in the orchestra level where Ms. Lucas can see the interpreter.
74. CCDC has attempted to educate the City about the accessibility problems at the Buell Theatre and to reach an amicable solution. Those attempts have not been successful.
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75. Boettcher Concert Hall was constructed in approximately 1978 and has approximately 2,679 seats. It provides only seven wheelchair and seven companion seats at the highest level of the Concert Hall, although there are conflicting reports about the precise number and location. Boettcher Concert Hall hosts the Colorado Symphony.
76. In January, 2006, Plaintiffs Hershey and Stephens attempted to get tickets for an April 5, 2006 Itzhak Perlman concert at Boettcher Concert Hall. On January 11, 2006, after receiving a special promotional e-mail with the Symphony's electronic newsletter, Ms. Hershey called to order tickets. (This was two days before tickets went on sale to the general public on January 13, 2006.) She was told by a person at the Boettcher Concert Hall box office that seats were available, but all of the wheelchair seats had been sold to season ticket holders. Ms. Hershey requested that the City investigate whether they would inquire of the seven subscribers who had purchased those seats if they actually needed those seats. The box office did not do so.
77. On January 13, 2006, the day that tickets went on sale to the general public for the Itzhak Perlman concert, Ms. Hershey again called the Boettcher Concert Hall box office to inquire about purchasing tickets. Again, she was told that while some tickets were still available, none of these were for wheelchair-accessible seats. Knowing that the entire concert would sell out quickly, Ms. Hershey requested a reasonable accommodation: She purchased two nonwheelchair seats in the highest price range and asked the City to find two wheelchair seating locations. The City refused.
78. Later, additional seating was added to Boettcher Concert Hall in an area where wheelchair seats have been provided at other events, known as the “crossover aisles,” but none
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of the added seats were wheelchair accessible. Ms. Hershey requested wheelchair seats in the added seating section, but the City refused.
79. Individuals who use wheelchairs have sat in the crossover aisles in the past. 80. After several letters were exchanged with CCDC, Ms. Hershey and Ms. Stephens eventually were accommodated. 81. When Ms. Hershey and Ms. Stephens attended the Itzhak Perlman concert, they were seated in a section that the City previously had informed them would cause a fire code violation. There were other people in wheelchairs seated in the same section. 82. On or about October 25, 2005, Carrie Ann Lucas attended the Colorado Bar swearing-in ceremony at the Boettcher Concert Hall. All new lawyers who had been admitted to the practice of law in Colorado after the July, 2005 bar exam were invited to attend as well as friends, family and other members of the bar. 83. Employees at the ceremony told Ms. Lucas she was required to sit in the wheelchair seating section high above where the rest of the inductees were seated. She disagreed. 84. Ms. Lucas was seated on the crossover aisle in between orchestra 1 and orchestra 2, see Exh. 1 attached hereto, alone with her sign language interpreter. She was segregated from her peers. Ms. Lucas had to argue for a very long time to have her interpreter seated in front of her, rather than seated directly next to her where Ms. Lucas would have been unable to see her. 85. Other inductees were permitted to sit with their friends and family, but Ms. Lucas was not allowed to. She could not sit with her children.
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86. All of the people attending the event were seated in rows closest to the stage, except people attending the event who use wheelchairs who were relegated to the very top rows of the Concert Hall. They were segregated from the rest of the audience by many empty rows of seats, and it was difficult to hear.
87. CCDC has attempted to educate the City about the accessibility problems at the Boettcher Concert Hall and to reach an amicable solution. Through correspondence, the City informed CCDC that it cannot expand wheelchair seating into the crossover aisle because it would create fire safety issues, although seating for non-disabled patrons has been provided there. On or about April 26, 2006, CCDC received a letter, informing that the City intends to install additional wheelchair seating at the Boettcher Concert Hall in the crossover aisles. The precise deadline is unknown. However, rather than installing the wheelchair and companion seating areas in the crossover aisle between orchestra 1 and orchestra 2, the City proposes to install them in the crossover aisle between orchestra 2 and orchestra 3. As can be seen in Exh. 1, the crossover aisle between orchestra 2 and orchestra 3 is much farther from the stage. On information and belief, the City can install wheelchair and companion seating on the crossover aisle between orchestra 1 and orchestra 2, providing people who use wheelchairs a better view of the stage and differing choices of admission prices than will be provided from the crossover aisle between orchestra 2 and orchestra 3. CCDC requested that the City do this; the City has not yet responded.
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88. On information and belief, the Stage Theatre provides more than fifty seats. On information and belief, there is an insufficient number of wheelchair and companion seats available in the Stage Theatre.
89. On information and belief, there is inadequate wheelchair seating in other theatres in the Performing Arts Complex.
90. In or about 2005, DCPA closed its 14th Street box office and moved it to a location inside the Helen Bonfils Theatre Complex inside the Performing Arts Complex. The service counter at this box office is far too high for persons in wheelchairs to use.
91. The Performing Arts Complex parking garage provides accessible parking spaces and van accessible parking spaces on the third, fourth and fifth levels. Van accessible parking is only available on the sixth level. There is not adequate signage directing people with disabilities to these levels. On information and belief, upon entry into the garage prior to performances, employees direct drivers to park on the top level first. This level has no accessible parking. The City owns the garage and contracts with another entity, which operates the garage.
92. The general public may purchase tickets for any performance sponsored by the DCPA on the internet. Those needing wheelchair seating are required to contact the DCPA box office. The DCPA has made wheelchair seating available on its web site for one production, “PHAMALy Presents the Wiz.” On information and belief, the DCPA can make wheelchair seating tickets for all of its productions available on its web site.
93. The City provides no TTY number on its web site for reserving tickets. 94. Colorado Ballet provides no TTY number on its web site for reserving tickets.
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95. Opera Colorado provides no TTY number on its web site for reserving tickets. 96. Colorado Symphony Association provides no TTY number on its web site for reserving tickets. 97. On information and belief, the City itself, or through contractual and/or licensing agreements with others, operates a web site, www.artscomplex.com. This web site advertises that, “Ellie Caulkins Opera House, the Buell Theatre and Boettcher Concert Hall make every effort to offer a wonderful experience for our patrons with disabilities,” and, “There are ADA seating locations in all three venues. Patrons should request ADA seating when booking their seats with the ticketing agency.” The City’s web site provides information to the public including, without limitation, the following: dates and times of performances, a description of the Performing Arts Complex and each of its venues, directions to the facilities and parking. The web site is a service, program or activity of the City. 98. The City’s web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software. 99. The DCPA web site, http://denvercenter.org/page.cfm?id=23683064, advertised, “The Denver Center for Performing Arts is fully accessible to persons of all abilities and offers services for patrons in wheelchairs and with hearing and sight impairments.” Since the filing of the original complaint in this action, the word “fully” has been removed. 100. The DCPA web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
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101. The DCPA web site provides information to the public including, without limitation, the following: dates and times of performances at DCPA-operated/leased venues, a description of the venues DCPA operates/leases at the Performing Arts Complex, directions to the venues DCPA operates/leases, seating charts for the venues DCPA operates/leases, a means for purchasing tickets for performances at the venues DCPA operates/leases.
102. The Opera Colorado web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
103. The Opera Colorado web site provides information to the public including, without limitation, the following: dates and times of performances, a description of the Ellie Caulkins Opera House, directions to the Opera House, a means for purchasing tickets for performances at the Opera House.
104. The Colorado Ballet Company web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
105. The Colorado Ballet Company web site provides information to the public including, without limitation, the following: dates and times of performances at the Opera House, a description of the Ellie Caulkins Opera House, directions to the Opera House, a means for purchasing tickets for performances at the Opera House.
106. The Colorado Symphony Association web site is not accessible to people with visual disabilities who use screen reading or screen enhancement software.
107. The Colorado Symphony Association web site provides information to the public including, without limitation, the following: dates and times of performances at Boettcher
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Concert Hall, directions to the Boettcher Concert Hall, a means for purchasing tickets for performances at the Boettcher Concert Hall.
108. Laura Hershey has attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Hershey has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Hershey from attending future performances until the accessibility problems described herein are resolved.
109. Laura Hershey suffered damages as a result of Defendants’ conduct. 110. Robin Stephens has attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Stephens has experienced accessibility problems described herein. Defendants’ conduct has deterred Ms. Stephens from attending future performances until the accessibility problems described herein are resolved. 111. Robin Stephens suffered damages as a result of Defendants’ conduct. 112. Carrie Lucas has attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. Ms. Lucas has experienced accessibility problems described herein. Ms. Lucas has tried viewing all of Defendants’ web sites with her screen reading software and has been unable to access much of the information on all of Defendants’ web sites. Defendants’ conduct has deterred Ms. Lucas from attending past and future performances until the accessibility problems described herein are resolved.
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113. Carrie Ann Lucas suffered damages as a result of Defendants’ conduct. 114. Heather Rebekah Renee Lucas has attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved. 115. Heather Rebekah Renee Lucas suffered damages as a result of Defendants’ conduct. 116. Adrianne Emily Monique Lucas has attended performances at the Performing Arts complex and would like to attend future performances there if the accessibility problems described herein are resolved. Miss Lucas has experienced accessibility problems described herein. Defendants’ conduct has deterred Miss Lucas from attending future performances until the accessibility problems described herein are resolved. 117. Adrianne Emily Monique Lucas suffered damages as a result of Defendants’ conduct. 118. Daniel Wilson has attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. Daniel Wilson has experienced accessibility problems described herein. Defendants’ conduct has deterred Mr. Wilson from attending future performances until the accessibility problems described herein are resolved. 119. Daniel James Wilson suffered damages as a result of Defendants’ conduct.
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120. On information and belief, other CCDC members have attended performances at the Performing Arts Complex and would like to attend future performances there if the accessibility problems described herein are resolved. On information and belief, these other CCDC members have experienced accessibility problems described herein. On information and belief, Defendants’ conduct has deterred other CCDC members from attending future performances until the accessibility problems described herein are resolved.
121. On information and belief, other CCDC members have suffered damages as a result of Defendants’ conduct.
122. Plaintiff CCDC has members who attend performances at the Performing Arts Complex and who would like to attend performances at the Performing Arts Complex.
123. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by public venues and theatres, like those owned and operated by Defendants.
124. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendants’ violations of the laws cited herein.
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125. Defendants’ actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
126. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with the City in an attempt to secure non-discriminatory conditions at the Performing Arts Complex.
127. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to counseling members and others who have been injured by Defendants’ discrimination.
128. Defendants’ discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities. For example:
a. parts of the Performing Arts Complex are inaccessible to individuals who use wheelchairs;
b. individuals who use wheelchairs are denied the opportunity to choose and purchase seats;
c. individuals who use wheelchairs are afforded lesser accommodations and services than the non-disabled;
d. individuals who use wheelchairs must argue with Defendants’ employees to obtain seating;
e. individuals with visual and hearing impairments are denied access to ticketing information;
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f. individuals with hearing impairments are denied access to effective communication.
129. Defendants’ actions deter some persons with disabilities from attending events at the Performing Arts Complex,
130. Defendants’ discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
131. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendants.
132. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendants’ discriminatory conduct alleged in this Second Amended Complaint and will be redressed by the relief requested in it.
133. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendants’ discrimination.
134. The elimination of discrimination, such as that of Defendants, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
135. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
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136. Defendants acted intentionally or with reckless or callous indifference to the federally protected rights of others.
FIRST CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Americans with Disabilities Act)
137. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
138. Title II of the ADA prohibits public entities from denying, on the basis of disability, the benefits of the services, programs, or activities of the public entity, or from subjecting persons with disabilities to discrimination. 42 U.S.C. § 12132.
139. The City and County of Denver is a public entity covered by the ADA. 42 U.S.C. § 12131(1).
140. Defendant has violated the ADA by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, failing to make the information on its web site accessible, and failing to provide effective means of communication.
141. Defendant’s violations of the ADA have harmed Plaintiffs. SECOND CLAIM FOR RELIEF
(Against City and County of Denver: Violation of Rehabilitation Act) 142. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein.
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143. The Rehabilitation Act prohibits recipients of federal financial assistance from denying, on the basis of disability, the benefits provided by the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794.
144. On information and belief, Defendant receives federal financial assistance. 145. Defendant has violated the Rehabilitation Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, lessees and licensees, failing to provide effective ticketing methods for wheelchair seating, failing to make the information on its web site accessible, failing to provide access to its facilities, and failing to provide effective means of communication. 146. Defendant’s violations of the Rehabilitation Act have harmed Plaintiffs.
THIRD CLAIM FOR RELIEF (Against Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company,
Colorado Symphony Association: Americans with Disabilities Act) 147. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 148. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
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149. Defendants Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company, Colorado Symphony Association all lease (or lease to), or operate places of public accommodation.
150. Defendants have violated the Americans with Disabilities Act by denying Plaintiffs and other persons with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to its facilities, failing to provide accessible web sites, and failing to provide effective means of communication.
151. Defendants’ violations of the Americans with Disabilities Act have harmed Plaintiffs.
FOURTH CLAIM FOR RELIEF (Against all Defendants: Colorado Anti-Discrimination Act) 152. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 153. The Colorado Anti-Discrimination Act prohibits any public facility of any kind from denying an individual or a group on the basis of disability equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. Colo. Rev. Stat. § 24-34-601. 154. Defendants -- in their ownership and/or operation of facilities at the Performing Arts Complex -- are all places of public accommodation as that term is defined in Colo. Rev. Stat. § 24-34-601(1).
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155. The Colorado Anti-Discrimination Act is to be construed consistently with the ADA and other federal civil rights statutes. 3 Colo. Code. Reg. 708.60.1(c).
156. Defendants have violated the Colorado Anti-Discrimination Act by denying individuals with disabilities the benefits of the Performing Arts Complex through, without limitation, failing to provide appropriate wheelchair seating spaces, failing to properly train employees, failing to provide effective ticketing methods for wheelchair seating, failing to provide access to their facilities, failing to make the information on their web sites accessible, and failing to provide effective means of communication.
157. Under the Colorado Anti-Discrimination Act, for every offense committed by each Defendant, each shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the persons aggrieved thereby. Colo. Rev. Stat. § 24-34-602.
158. Defendants’ violations of the Colorado Anti-Discrimination Act have harmed Plaintiffs and CCDC’s members who have attempted to patronize the Performing Arts Complex.
FIFTH CLAIM FOR RELIEF (Against the City and County of Denver and the Denver Center for Performing Arts: Colorado
Consumer Protection Act) 159. Plaintiffs reallege and incorporate by reference the allegations set forth above as if fully set forth herein. 160. The Colorado Consumer Protection Act (“CCPA”) requires that “[e]xcept in a class action, any person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice . . . shall be liable in the amount equal to the sum of . . .[t]hree times the actual damages sustained or two hundred and fifty dollars, whichever
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is greater; and . . . [i]n the case of a successful action to enforce said liability the costs of the action together with reasonable attorney fees as determined by the court.”
161. Plaintiffs Laura Hershey, Robin Stephens, Carrie Ann Lucas, and Daniel Wilson seek recovery under the CCPA.
162. In addition, the CCPA provides, “[a]ny person who violates or causes another to violate any provision of [the CCPA] shall forfeit and pay to the general fund of this state a civil penalty of not more than two thousand dollars for each such violation [;] a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved; except that the maximum civil penalty shall not exceed one hundred thousand dollars for any related series of violations.” Colo. Rev. Stat. § 6-1-112(1).
163. Section 6-1-112 is enforceable by a plaintiff in a private cause of action. 164. Under the CCPA, “[a] person engages in a deceptive trade practice when, in the course of such person’s business . . . such person:”
a. “[k]nowingly makes a false representation as to the characteristics . . . uses, alterations, or quantities of . . . services . . . ;
b. “[r]epresents that . . . services . . . are of a particular standard, quality or grade . . . if he knows or should know that they are of another;”
c. “[a]dvertises . . . services with intent not to sell them as advertised;” d. “[a]dvertises . . . services with intent not to supply reasonably expectable
public demand, unless the advertisement discloses a limitation of quantity;”
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e. “[e]mploys ‘bait and switch’ advertising, which is advertising accompanied by an effort to sell . . . services . . . other than those advertised or on terms other than those advertised and which is also accompanied by [the] following practice . . . demonstrating defective . . . services which are unusable or impractical for the purposes set forth in the advertisement; and
f. “[f]ails to disclose material information concerning . . . services . . . which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction.
Colo. Rev. Stat. § 6-1-105(1). 165. Defendants the City and DCPA are responsible for advertising the availability of
wheelchair seating at the Performing Arts Complex venues. 166. The City and DCPA, through promotional brochures, Internet websites, and
representations of box office personnel, advertise and/or claim that DCPA provides “wheelchair seating” or “accessible seating” and depict the wheelchair seating areas in various maps and diagrams and have advertised that the Performing Arts Complex is “fully accessible” or “accessible” to individuals with disabilities.
167. The DCPA box office is Defendants’ agent with regard to the sales of tickets for concerts at DCPA.
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168. Defendants continue to advertise that they sell tickets for “wheelchair seating” or “accessible seating” in the designated areas. The City has been placed on notice that it has been falsely advertising that wheelchair or accessible seating is available in the advertised locations at Performing Arts Complex venues; nevertheless, Defendants continue to advertise the availability of wheelchair seating with full knowledge that such seating will be unavailable at the concert, often as a result of Defendants’ actions. Like all reserved seating ticket holders, Plaintiffs Laura Hershey, Robin Stephens, Carrie Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson were led to believe and did believe that there would be a level seating areas, with appropriate companion seating, that could be accessed in a reasonable amount of time, that were of appropriate size and that were the seats they actually reserved. Upon arrival, Plaintiffs did not receive the seats they were promised.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction. 2. That this Court issue an injunction ordering Defendants to comply with the ADA, the Rehabilitation Act, the Colorado Anti-Discrimination Act and the CCPA by providing appropriate, designated accessible wheelchair and companion seating locations in all of their venues, providing ticketing policies that ensure people who use wheelchairs get the seats they select, providing training to their employees on access issues, providing access to ticketing services, and otherwise bringing their services and facilities into compliance. 3. That this Court award compensatory damages to Plaintiffs.
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4. That this Court award reasonable attorneys’ fees and costs.
5. That this Court award such additional or alternative relief as may be just, proper
and equitable.
JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury.
Dated: July 12, 2006
Respectfully submitted,
/s Kevin W. Williams Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org
Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 TTY: 303.595.9703 Facsimile: 303.595.9705 E-mail: arob@foxrob.com
Address of Plaintiff Colorado Cross-Disability Coalition
655 Broadway, Suite 775 Denver, CO 80203
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 Case 1:06-cv-00865-MSK-BNB Document 32 Filed 09/08/06 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR THE PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
DEFENDANT DENVER CENTER FOR THE PERFORMING ARTS ANSWER TO SECOND AMENDED COMPLAINT
Defendant, Denver Center for the Performing Arts ("DCPA"), through its attorneys,
Semple, Miller, Mooney & Fanington, P.C., by Martin Semple, Patrick B. Mooney and M. Brent
Case, answer Plaintiffs' Second Amended Complaint ("complaint") as follows:
INTRODUCTION
1. DCPA denies the allegations of paragraph 1 of the complaint.

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2. DCPA admits that the Americans with Disabilities Act ("ADA"), 42 U.S.c. § 12101, et seq., is a civil rights law enacted in July 1990 and denies all remaining allegations of paragraph 2 of the complaint.
3. DCPA admits that 42 U.S.C. § 12101(b) sets forth certain purposes of the ADA and that paragraph 3 of the complaint sets forth portions of 42 U.S.c. § 12101 (b).
4. With regard to the allegations of paragraph 4 of the complaint, these allegations relate to a defendant other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied.
5. DCPA denies the allegations of paragraph 5 of the complaint insofar as such allegations are against DCPA.
6. DCPA denies the allegations of paragraph 6 of the complaint insofar as such allegations are against DCPA.
7. DCPA denies the allegations of paragraph 7 of the complaint insofar as such allegations are against DCPA.
JURISDICTION 8. With regard to the allegations contained in paragraph 8 DCPA admits that the court has jurisdiction over this action pursuant to U.S.C. §§ 1331 and 1343 and otherwise denies the allegations contained in paragraph 8. 9. DCPA admits the allegations in paragraph 9 of the complaint.
PARTIES 10. DCPA is without information as to the truth of the allegations of paragraph 10 of the complaint and therefore denies the allegations.
2

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11. DCPA is without information as to the truth of the allegations of paragraph 11 of the complaint and therefore denies the allegations.
12. DCPA is without information as to the truth of the allegations of paragraph 12 of the complaint and therefore denies the allegations.
13. DCPA is without information as to the truth of the allegations of paragraph 13 of the complaint and therefore denies the allegations.
14. DCPA is without information as to the truth of the allegations of paragraph 14 of the complaint and therefore denies the allegations.
15. DCPA is without information as to the truth of the allegations of paragraph 15 of the complaint and therefore denies the allegations.
16. DCPA is without information as to the truth of the allegations of paragraph 16 of the complaint and therefore denies the allegations.
17. With regard to the allegations of paragraph 17 of the complaint, these allegations relate to a defendant other than DCPA and do not require an answer from DCPA.
18. DCPA admits that it is a Colorado nonprofit corporation which through contractual and leasing arrangements provides theatrical, musical, and other artistic performances to the public at some of the facilities in the Performing Arts Complex. DCPA admits that Denver Center Attractions and Denver Center Theater Company are divisions of the DCPA. DCPA admits that it operates its own ticketing service for the productions it presents at venues in the Performing Arts Complex. DCPA admits that it operates a website with the URL address ofwww.denvercenter.org. DCPA denies all remaining allegations of paragraph 18 of the complaint.
3

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19. With regard to the allegations of paragraphs 19, 20 and 21 of the complaint, these allegations relate to a defendant other than OCPA and do not require an answer from OCPA. To the extent that an answer is required the allegations are denied.
GENERAL ALLEGATIONS 20. To the extent that the allegations in paragraph 22 relate to the DCPA, OCPA admits the allegations except that the Tramway Theater is not part of the Performing Arts Complex. 21. OCPA admits the allegations in paragraph 23 of the complaint. 22. With regard to the allegations contained in paragraph 24, OCPA admits the allegations in the first sentence, with regard to the remaining allegations insofar as they relate to OCPA, OCPA admits that it is a user of theaters in the Performing Arts Complex, and is without information with regard to the remainder of the allegations and accordingly deny same. 23. With regard to the allegations of paragraphs 25 through 56 of the complaint, these allegations relate to defendants other than OCPA and do not require an answer from OCPA. To the extent that an answer is required the allegations are denied. 24. The allegations contained in paragraph 57 relate to a defendant other than OCPA and does not require an answer from OCPA. To the extent an answer is required the allegations are denied. 25. DCPA denies the allegations of paragraph 58 of the complaint insofar as such allegations are against OCPA. 26. OCPA denies the allegations of paragraph 59 of the complaint insofar as such allegations are against OCPA. OCPA is without information as to the truth of the allegations
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against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations of paragraph 59.
27. DCPA denies the allegations contained in paragraph 60 of the complaint. 28. With regard to the allegations contained in paragraphs 61 through 65 of the complaint, the allegations relate to defendants other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied. 29. To the extent the allegations in paragraph 66 of the complaint relate to the DCPA, DCPA denies such allegations. 30. DCPA denies the allegations of paragraph 67 of the complaint insofar as such allegations are against DCPA. DCPA is without infonnation as to the truth of the allegations against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations of paragraph 67. 31. DCPA denies the allegations of paragraph 68 of the complaint insofar as such allegations are against DCPA. DCPA is without information as to the truth of the allegations against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations of paragraph 68. 32. DCPA denies the allegations contained in paragraph 69 of the complaint. 33. With regard to the allegations contained in paragraph 70 of the complaint, DCPA admits that on June 17, 2006, plaintiff Carrie A. Lucas purchased tickets for the November 11, 2006 performance of The Lion King. DCPA admits that three of the tickets Ms. Lucas purchased are for seats in Row S, Section E of The Buell Theater (two wheelchair accessible seats and one companion seat). DCPA admits that on June 29, 2006, plaintiff Carrie A. Lucas spoke to a DCPA employee named Shana Lawson about the provision of a sign language interpreter for the
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November 11, 2006 performance of The Lion King. DCPA admits that it has scheduled a sign language interpreted performance of The Lion King on October 22, 2006. DCPA denies the remaining allegations of paragraph 70 of the complaint.
34. DCPA denies the allegations in paragraph 71 of the complaint. 35. With regard to the allegations contained in paragraph 72 of the complaint, DCPA admits that on June 29, 2004, DCPA employee Don Burge spoke with Ms. Lucas concerning her request that DCPA provide a sign language interpreter four to six feet in front of her Row S, Section E seat during the November 11, 2006 performance of The Lion King. DCPA admits that Mr. Burge agreed to call Ms. Lucas back concerning her request. DCPA denies the remaining allegations of paragraph 72 of the complaint. 36. With regard to the allegations contained in paragraph 73 of the complaint, DCPA admits that later on June 29, 2006, Don Burge left plaintiff Lucas a voice message at the telephone number that she had provided to him, and that such message speaks for itself, but otherwise denies the allegations contained in paragraph 73 of the complaint. 37. With regard to the allegations contained in paragraphs 74 through 87 of the complaint, the allegations relate to defendants other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied. 38. DCPA admits that there are more than fifty seats in the Stage Theater but denies the remaining allegations of paragraph 88 of the complaint. 39. DCPA denies the allegations in paragraph 89 of the complaint insosfar as such allegations relate to DCPA. 40. With regard to the allegations contained in paragraph 90 of the complaint, DCPA admits that in 2005, DCPA closed its 14th Street box office and moved it to a location inside the
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Helen Bonfils Theater Complex, but otherwise denies the allegations contained in paragraph 90 of the complaint.
41. With regard to the allegations contained in paragraph 91 of the complaint, the allegations relate to a defendant other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied.
42. With regard to the allegations contained in paragraph 92 of the complaint DCPA admits that patrons may purchase tickets for performances sponsored by the DCPA through its ticketing service which operates through, among others, a website, phone, box office, and further admits that wheelchair seating purchases were available on its website for the "PHAMALy Presents the Wiz" but otherwise denies the allegations contained in paragraph 92.
43. DCPA is without infom1ation as to the truth of the allegations in paragraph 93 of the complaint and therefore denies the allegations.
44. With regard to the allegations contained in paragraphs 94 through 98 of the complaint, the allegations relate to defendants other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied.
45. With regard to the allegations contained in paragraph 99 of the complaint DCPA admits that it operates a website, that the statements on the website speak for themselves and otherwise denies the allegations contained in paragraph 99 of the complaint.
46. DCPA denies the allegations contained in paragraph 100 of the complaint insofar as such allegations relate to DCPA.
47. With regard to the allegations contained in paragraph 101 of the complaint, DCPA states that the statements in the website speak for themselves and otherwise denies the allegations contained in paragraph 101 of the complaint.
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48. With regard to the allegations contained in paragraphs 102 through 107 of the complaint, the allegations relate to defendants other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied.
49. DCPA is without information as to the truth of the allegations contained 111 paragraph 108 of the complaint and therefore denies the allegations.
50. DCPA denies the allegations contained in paragraph 109 of the complaint insofar as such allegations relate to DCPA.
51. DCPA is without information as to the truth of the allegations contained 111 paragraph 110 of the complaint and therefore denies the allegations.
52. DCPA denies the allegations contained in paragraph 111 of the complaint insofar as such allegations relate to DCPA.
53. DCPA is without information as to the truth of the allegations contained 111 paragraph 112 ofthe complaint and therefore denies the allegations.
54. DCPA denies the allegations contained in paragraph 113 of the complaint insofar as such allegations relate to DCPA.
55. DCPA is without information as to the truth of the allegations contained 111 paragraph 114 of the complaint and therefore denies the allegations.
56. DCPA denies the allegations contained in paragraph 115 of the complaint insofar as such allegations relate to DCPA.
57. DCPA is without infom1ation as to the truth of the allegations contained 111 paragraph 116 of the complaint and therefore denies the allegations.
58. DCPA denies the allegations contained in paragraph 117 of the complaint insofar as such allegations relate to DCPA.
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59. DCPA is without information as to the truth of the allegations contained In paragraph 118 of the complaint and therefore denies the allegations.
60. DCPA denies the allegations contained in paragraph 119 of the complaint insofar as such allegations relate to DCPA.
61. DCPA is without information as to the truth of the allegations contained In paragraph 120 of the complaint and therefore denies the allegations.
62. DCPA denies the allegations contained in paragraph 121 of the complaint insofar as such allegations relate to DCPA.
63. DCPA is without information as to the truth of the allegations contained In paragraph 122 of the complaint and therefore denies the allegations.
64. DCPA is without information as to the truth of the allegations contained In paragraph 123 of the complaint and therefore denies the allegations.
65. DCPA is without information as to the truth of the allegations contained In paragraph 124 of the complaint and therefore denies the allegations.
66. DCPA denies the allegations of paragraph 125 of the complaint insofar as such allegations relate to DCPA.
67. With regard to the allegations contained in paragraph 126 the complaint, the allegations relate to a defendant other than other than DCPA and do not require an answer from DCPA. To the extent that an answer is required the allegations are denied.
68. DCPA denies the allegations of paragraph 127 of the complaint insofar as such allegations and any remaining are against DCPA.
69. DCPA denies the allegations of paragraph 128 of the complaint insofar as such allegations are against DCPA.
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70. DCPA denies the allegations of paragraph 129 of the complaint insofar as such allegations are against DCPA.
71. DCPA denies the allegations of paragraph 130 of the complaint insofar as such allegations are against DCPA.
n. DCPA denies the allegations of paragraph 131 of the complaint insofar as such
allegations are against DCPA. 73. DCPA denies the allegations of paragraph l32 of the complaint insofar as such
allegations relate to DCPA. 74. DCPA denies the allegations of paragraph l33 of the complaint insofar as such
allegations relate to DCPA. 75. DCPA denies the allegations of paragraph 134 of the complaint insofar as such
allegations relate to DCPA. 76. The allegations contained in paragraph l35 are legal conclusions which do not
reqUIre an answer. 77. DCPA denies the allegations of paragraph l36 of the complaint insofar as such
allegations are against DCPA. DCPA is without infonnation as to the truth of the allegations against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations contained in paragraph 136.
FIRST and SECOND CLAIMS FOR RELIEF 78. Plaintiffs' First and Second Claims for Relief 137 through 146 are claims against a defendant other than DCPA and do not require an answer by DCPA.
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THIRD CLAIM FOR RELIEF 79. DCPA incorporates by reference its responses to paragraph 1-146 as though fully set forth herein. 80. Paragraph 148 of the complaint sets forth a statement oflaw to which no response from DCPA is required; and otherwise DCPA denies any allegations contained in paragraph 148. 81. The allegations contained in paragraph 149 state a legal conclusion that do not reqmre an answer but otherwise denies the allegations contained in paragraph 149 of the complaint. 82. DCPA denies the allegations contained in paragraph 150 of the complaint insofar as such allegations are against DCPA.. 83. DCPA denies the allegations of paragraph 151 of the complaint insofar as such allegations are against DCPA.
FOURTH CLAIM FOR RELIEF 84. DCPA incorporates by reference its responses to paragraphs 1-151 of the complaint as though fully set forth herein. 85. Paragraph 153 of the complaint sets forth a statement oflaw to which no response from DCPA is required. 86. The allegations contained in paragraph 154 are legal conclusions that do not require an answer by DCPA but otherwise denies the allegations of paragraph of 154 of the complaint. 87. Paragraph 155 of the complaint sets forth a statement oflaw to which no response from DCPA is required.
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88. DCPA denies the allegations of paragraph 156 of the complaint insofar as such allegations are against DCPA. DCPA is without information as to the truth of the allegations against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations of paragraph 156.
89. Paragraph 157 of the complaint sets forth a statement oflaw to which no response from DCPA is required.
90. DCPA denies the allegations of paragraph 158 of the complaint insofar as such allegations are against DCPA. DCPA is without information as to the truth of the allegations against other defendants in this matter; therefore DCPA denies any such allegations and any remaining allegations of paragraph 158.
FIFTH CLAIM FOR RELIEF 91. DCPA incorporates by reference its responses to paragraphs 1-158 of the complaint as though fully set forth herein. 92. Paragraph 160 of the complaint sets forth a statement of law to which no response from DCPA is required. 93. DCPA is without information as to the truth of the allegations in paragraph 161 of the complaint and therefore denies the allegations. 94. Paragraph 162 of the complaint sets forth a statement of law to which no response from DCPA is required. 95. Paragraph 163 of the complaint sets forth a statement of law to which no response from DCPA is required.
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96. Paragraph 164 of the complaint sets forth a statement oflaw to which no response from DCPA is required.
97. To the extent that the allegations in paragraph 165 of the complaint relate to DCPA, DCPA denies such allegations.
98. To the extent that the allegations in paragraphs 166 of the complaint relate to DCPA, DCPA states that the infornlation and statements on its website and publications speak for themselves and otherwise denies the allegations of paragraph 166.
99. With regard to the allegations contained in paragraph 167 of the complaint DCPA admits that the DCPA box office sells tickets for DCPA sponsored events, but otherwise denies the allegations contained in paragraph 167.
100. DCPA admits that it provides information to the public concerning availability of wheelchair accessible seats at performances which it presents but otherwise denies the remaining allegations of paragraph 168 of the complaint.
AFFIRMATIVE DEFENSES 1. DCPA states that the allegations of the complaint fails to state a claim upon which relief can be granted. 2. DCPA asserts that the plaintiffs failed to exhaust administrative remedies. 3. Plaintiffs have failed to minimize or mitigate their damages, if any. 4. To the extent plaintiffs are making any claims against DCPA with regard to the theaters in the Helen Bonfils Theater Complex, these theaters constitute existing facilities under Title II of the ADA which does not require that the existing facilities be accessible to and usable by people with disabilities.
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5. Plaintiffs have not alleged or demonstrated intentional discrimination or deliberate indifference against them by DCPA and are, therefore, not entitled to compensatory damages from DCPA under Title II of the ADA.
6. Plaintiffs' damages, to the extent there are any such damages, were caused by their own acts or omissions or were caused by the acts or omissions of third parties over which DCPA has no control or right of control.
7. Plaintiffs' claims are not ripe. S. One or more of the plaintiffs are not proper parties or real parties in interest as to all claims for relief asserted by plaintiffs' complaint. 9. One or more of the plaintiffs lacks standing. 10. Plaintiffs' claims for injunctive relief are moot. 11. Plaintiffs' claims are barred by the doctrines of undue burden, necessity and fundamental alteration. 12. Plaintiffs' claims are barred by the doctrines of waiver, estoppel, ratification and laches. 13. DCPA has complied with all applicable laws, statutes and regulations. 14. Plaintiffs' claims are barred by appiicable statutory limitations, exceptions and exemptions. WHEREFORE, DCPA, having fully answered plaintiffs' complaint, moves this honorable Court to dismiss plaintiffs' complaint against DCPA with prejudice, and DCPA be granted its costs and attorneys' fees in this matter.
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RESPECTFULLY SUBMITTED this 8th day of September, 2006. SEMPLE, MILLER, MOONEY & FARRINGTON, P.c. slMartin Semple Martin Semple Patrick B. Mooney M. Brent Case 1120 Lincoln Street, Suite 1308 Denver, CO 80203 (303) 595-0941 ATTORNEYS FOR DEFENDANT DENVER CENTER FOR THE PERFORMING ARTS
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing DEFENDANT DENVER CENTER FOR THE PERFORMING ARTS ANSWER TO SECOND AMENDED COMPLAINT was filed and served this 8th day of September, 2006 via CM/ECF to the following:

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Kwilliams@ccdconline.org

Norman R. Bangeman Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 norman.bangeman@ci.denver.co.us

Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 tfox@foxrob.com

Ashley Elizabeth Arroyo Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 ashley.arroyo@ci.denver.co.us

John C. Ruh Kathrin H. Weston Holme, Roberts & Owen LLC 1700 Lincoln Street, Suite 4100 Denver, CO 80203 James.ruh@hro.com

Colleen M. Rae John C. Lowrie Ford & Harrison LLP 1675 Broadway, #215 Denver, CO 80202 crea@fordharrison.com

slTammi J. Evans

G:\DCPA\Colorado Cross-Disability Coalition v. DCPA\p\Answer to Second Amended Complaint 06-09-0S.doc

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 Case 1:06-cv-00865-MSK-BNB Document 33 Filed 09/08/06 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v.
THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR THE PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
DEFENDANT COLORADO BALLET COMPANY'S ANSWER TO SECOND AMENDED COMPLAINT
Defendant, the Colorado Ballet Company ("the Ballet"), through its attorneys, Holme Roberts & Owen LLP, respond to Plaintiffs' Second Amended Complaint ("Complaint") as follows:
INTRODUCTION I. The Ballet denies the allegations of paragraph 1 of the Complaint.
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2. The Ballet admits that the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., is a civil rights law that was enacted in July 1990.
3. The Ballet admits that 42 U.S.C. § 12101(b) outlines the purposes of the ADA as cited in paragraph 3 of the Complaint.
4. The allegations of paragraph 4 of the Complaint do not relate to the Ballet and therefore do not require an answer from the Ballet. To the extent that an answer would be required, the Ballet states that the ADA speaks for itself.
5. The Ballet denies all allegations of paragraph 5 of the Complaint that relate to the Ballet. The Ballet is without information as to the truth of the allegations against other defendants in this matter.
6. The Ballet denies all allegations of paragraph 6 of the Complaint that relate to the Ballet. The Ballet is without information as to the truth of the allegations against other defendants in this matter.
7. The Ballet denies all allegations of paragraph 7 of the Complaint that relate to the Ballet. The Ballet is without information as to the truth of the allegations against other defendants in this matter.
JURISDICTION 8. The Ballet admits that this Court has subject matter jurisdiction over this action. 9. The Ballet admits that venue is proper.
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PARTIES 10. The Ballet is without information as to the truth of the allegations of paragraph 10 of the Complaint and therefore denies all the allegations of paragraph 10. 11. The Ballet is without information as to the truth of the allegations of paragraph 11 of the Complaint and therefore denies all the allegations of paragraph 11. 12. The Ballet is without information as to the truth of the allegations of paragraph 12 of the Complaint and therefore denies all the allegations of paragraph 12. 13. The Ballet is without information as to the truth of the allegations of paragraph 13 of the Complaint and therefore denies all the allegations of paragraph 13. 14. The Ballet is without information as to the truth of the allegations of paragraph 14 of the Complaint and therefore denies all the allegations of paragraph 14. 15. The Ballet is without information as to the truth of the allegations of paragraph 15 ofthe Complaint and therefore denies all the allegations of paragraph 15. 16. The Ballet is without information as to the truth of the allegations of paragraph 16 of the Complaint and therefore denies all the allegations of paragraph 16. 17. As the allegations of paragraph 17 of the Complaint relate to a defendant other than the Ballet, they do not require an answer from the Ballet. To the extent that an answer is required all allegations are denied. 18. As the allegations of paragraph 18 of the Complaint relate to a defendant other than the Ballet, they do not require an answer from the Ballet. To the extent that an answer is required all allegations are denied.
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19. As the allegations of paragraph 19 of the Complaint relate to a defendant other than the Ballet, they do not require an answer from the Ballet. To the extent that an answer is required all allegations are denied.
20. The Ballet admits that it is a Colorado non-profit organization. The Ballet further admits that is schedules, promotes and sells tickets for ballet performances at the Performing Arts Complex, that it is a lessee of the City, has performed in the Opera House and the Buell Theatre, and that it operates a website with the URL address www.coloradoballet.org. The Ballet denies all other allegations of paragraph 20 of the Complaint.
21. As the allegations of paragraph 21 of the Complaint relate to a defendant other than the Ballet, they do not require an answer from the Ballet. To the extent that an answer is required all allegations are denied.
GENERAL ALLEGATIONS 22. The Ballet admits the allegations in paragraph 22 of the Complaint. 23. As the allegations of paragraph 23 of the Complaint relate to a defendant other than the Ballet, they do not require an answer from the Ballet. To the extent that an answer is required all allegations are denied. 24. The Ballet admits that the Performing Arts Complex is located at 14th and Curtis streets. The Ballet further admits that the Ellie Caulkins Opera House, Boettcher Concert Hall, the Temple Hoyne Buell Theatre, the Garner Galleria Theatre, and the Helen Bonfils Theatre Complex, which includes The Stage, Space, Ricketson and Jones theaters and the Donald R. Seawell Grand Ballroom, are located in the Performing Arts Complex. The Ballet admits that
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there is a parking garage within the Performing Arts Complex. The Ballet admits that the

Performing Arts Complex is an approximately 4-block site owned and operated by the City and

County of Denver. The Ballet has insufficient information as to whether the DCPA is a primary

tenant of the Performing Arts Complex. The Ballet admits that the Colorado Ballet conduct

performances in venues within the Complex. The Ballet denies the remaining allegations of paragraph 24 of the Complaint.

25. The allegations of paragraph 25 of the Complaint relate to defendants other than

the Ballet and therefore do not require an answer from the Ballet. To the extent that an answer is

required the allegations are denied.

26. The allegations of paragraph 26 of the Complaint relate to defendants other than

the Ballet and therefore do not require an answer from the Ballet. To the extent that an answer is

required the allegations are denied.

27. The Ballet admits that the Colorado Ballet and Opera Colorado hold

performances at the Opera House. All other allegations of paragraph 27 of the Complaint are

denied.

28 - 56.

The Ballet is without information as to the truth of the allegations of

paragraphs 28 - 56 of the Complaint and therefore denies the allegations of paragraphs 28-56.

57. The Ballet admits that the Buell Theatre was constructed in 1991. The Ballet is

without information as to the truth of the remaining allegations of paragraph 57 and therefore

denies the allegations of paragraph 57.

58 - 81.

The Ballet is without information as to the truth of the allegations of

paragraphs 58-81 of the Complaint and therefore denies the allegations of paragraphs 58-81.

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82 - 86.

As the allegations of paragraphs 82-86 ofthe Complaint do no relate to the

Ballet, they do not require an answer from the Ballet. To the extent the allegations require an

answer, the allegations are denied.

87 - 93.

The Ballet is without information as to the truth of the allegations of

paragraphs 87-93 ofthe Complaint and therefore denies the allegations of paragraphs 87-93.

94. The Ballet admits that its website provides no TTY number for reserving tickets.

95 - 103. The Ballet is without information as to the truth of the allegations of

paragraphs 95-103 of the Complaint and therefore denies the allegations of paragraphs 95-103.

104. The Ballet denies that its website is not accessible to people with visual

disabilities who use screen reading or screen enhancement software.

105. The Ballet admits that its website provides information to the public including

dates and times of performances at the Opera House, a description of the Ellie Caulkins Opera

House, and a means for purchasing tickets for performances at the Opera House.

106 - 127. The Ballet is without information as to the truth of the allegations of

paragraphs 106-127 of the Complaint and therefore denies the allegations of paragraphs 106-127.

128. The Ballet denies all of the allegations of paragraph 28.

129 - 136. The Ballet is without information as to the truth of the allegations of

paragraphs 129-136 of the Complaint and therefore denies the allegations of paragraphs 129-136.

FIRST and SECOND CLAIMS FOR RELIEF 137 - 146. Plaintiffs' First and Second Claims for Relief 137 through 146 are claims against a defendant other than the Ballet and therefore do not require an answer by the Ballet.
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THIRD CLAIM FOR RELIEF 147. The Ballet incorporates by reference its responses to paragraph 1-146 as though fully set forth herein. 148. Paragraph 148 of the Complaint merely contains a statement oflaw and does not require an answer by the Ballet. To the extent an answer is required, the Ballet denies any allegations contained in paragraph 148. 149. The Ballet denies the allegations contained in paragraph 149 of the Complaint. 150. The Ballet denies the allegations contained in paragraph 150 of the Complaint. 151. The Ballet denies the allegations ofparagraph 151 of the Complaint insofar as such allegations are against the Ballet.
FOURTH CLAIM FOR RELIEF 152. The Ballet incorporates by reference its responses to paragraphs 1-151 of the Complaint as though fully set forth herein. i53. Paragraph 153 ofthe Complaint merely contains a statement oflaw and therefore does not require an answer by the Ballet. To the extent an answer is required, the Ballet denies any allegations contained in paragraph 155. 154. The allegations contained in paragraph 154 are legal conclusions and therefore do not require an answer by the Ballet. To the extent an answer is required, the Ballet denies any allegations contained in paragraph 155.
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155. Paragraph 155 of the Complaint merely contains a statement oflaw and therefore does not require an answer by the Ballet. To the extent an answer is required, the Ballet denies any allegations contained in paragraph 155.
156. The Ballet denies the allegations of paragraph 156 of the Complaint insofar as such allegations are against the Ballet. The Ballet is without infonnation as to the truth of the allegations against other defendants in this matter; therefore the Ballet denies any such allegations and any remaining allegations of paragraph 156.
157. Paragraph 157 of the Complaint merely contains a statement oflaw and therefore does not require an answer by the Ballet. To the extent an answer is required, the Ballet denies any allegations contained in paragraph 157.
158. The Ballet denies the allegations of paragraph 158 of the Complaint insofar as such allegations are against the Ballet. The Ballet is without information as to the truth of the allegations against other defendants in this matter and therefore denies any such allegations and any remaining allegations of paragraph 158.
FIFTH CLAIM FOR RELIEF 159. The Ballet incorporates by reference its responses to paragraphs 1-158 of the Complaint as though fully set forth herein. 160 -168. Plaintiffs' Fifth Claim for Relief, paragraphs 160-168, are claims against a defendant other than the Ballet and therefore do not require an answer by the Ballet.
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AFFIRMATIVE DEFENSES 1. First Affirmative Defense. The Ballet states that the allegations of the Complaint fails to state a claim upon which relief can be granted. 2. Second Affirmative Defense. Plaintiffs have failed to minimize or mitigate their damages, if any. 3. Third Affirmative Defense. Plaintiffs' claimed damages, if any, were caused by their own acts or omissions, or were caused by the acts or omissions of third parties over whom the Ballet had no control or right of control. 4. Fourth Affirmative Defense. Plaintiffs' claims are not ripe. 5. Fifth Affirmative Defense. One or more of the Plaintiffs are not proper parties or real parties in interest as to all claims for relief asserted in Plaintiffs' Complaint. 6. Sixth Affirmative Defense. One or more of the Plaintiffs lack standing. 7. Seventh Affirmative Defense. Plaintiffs' claims for injunctive relief are moot. 8. Eighth Affirmative Defense. Plaintiffs' claims are barred by the doctrines of undue burden, necessity and fundamental alteration. 9. Ninth Affirmative Defense. Plaintiffs' claims are barred by the doctrines of waiver, estoppel, ratification and laches. 10. Tenth Affirmative Defense. The Ballet complied with all applicable laws, statutes and regulations. 11. Eleventh Affirmative Defense. Plaintiffs' claims are barred by applicable statutory limitations, exceptions and exemptions.
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12. Twelfth Affirmative Defense. Plaintiffs' claims are barred due to their failure to exhaust remedies.
WHEREFORE, the Ballet, having fully responded to Plaintiffs' Complaint, requests that this Curt dismiss Plaintiffs' Complaint against the Ballet with prejudice, that Plaintiffs take nothing by their Complaint, and that the Ballet be granted its costs and attorney fees in this matter.
RESPECTFULLY SUBMITTED this 8th day of September, 2006. HOLME ROBERTS & OWEN LLP
s/James Ruh
JamesRuh Kathrin Weston 1700 Lincoln Street, Suite 4100 Denver, CO 80203 (303) 866-0631 ATTORNEYS FOR DEFENDANT COLORADO BALLET COMPANY
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CERTIFICATE OF SERVICE I hereby certify that on September 8, 2006, I electronically filed the foregoing DEFENDANT COLORADO BALLET COMPANY'S ANSWER TO SECOND AMENDED COMPLAINT with the Clerk of the Court, District of Colorado using the ECF System, which will send notification to the following registered participants of the ECF System as listed on the Court's Notice of Electronic Filing: Ashley Elizabeth Arroyo, Timothy Patrick Fox; John C. Lowrie; colleen Meyers Rea; Martin Semple, Kevin William Williams.
sl Kate Douglas
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 Case 1:06-cv-00865-MSK-BNB Document 34 Filed 09/08/06 USDC Colorado Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-CV-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants

ANSWER OF DEFENDANT CITY AND COUNTY OF DENVER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

The Defendant City and County of Denver ("City"), by and through its undersigned

attorneys, hereby answers Plaintiffs' Second Amended Complaint (referred to herein as

"Complaint") as follows:

INTRODUCTION

1.

Insol~lI' as Paragraph 1 or Plaintirrs' Complaint is directed at the City, the City

denies the allegations of said Paragraph.

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2. The City admits the allegations of Paragraph 2 of Plaintiffs' Complaint. 3. With respect to Paragraph 3 of Plaintiffs' Complaint, the City states that the Americans with Disabilities Act ("ADA") speaks for itself and that no response by the City is required. To the extent a response is required, the allegations of Paragraph 3 are denied. 4. With respect to Paragraph 4 of Plaintiffs' Complaint, the City states that the ADA speaks for itself and that no response by the City is required to the allegation that the ADA "further clarified the Rehabilitation Act of 1973." The City admits that it received federal financial assistance. 5. Insofar as Paragraph 5 of Plaintiffs' Complaint is directed at the City, the City denies the allegations of said Paragraph. 6. With respect to Paragraph 6 of Plaintiffs' Complaint, the City denies that individuals who use wheelchairs currently are subjected to problems, including the alleged problems listed in subparagraphs (a) through (d) of paragraph 6 of Plaintiffs' Complaint. The City admits that there have been occasional delays due to a malfunction in a wheelchair lift at the Ellie Caulkins Opera House ("Opera House"). 7. Insofar as Paragraph 7 of Plaintiffs' Complaint is directed against the City, the City denies the allegations of said Paragraph.
JURISDICTION 8. With respect to Paragraph 8 of the Complaint, the City admits that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1343, and the City denies the allegation that this Court has pendent jurisdiction over claims brought under the laws of the State ofColorauo.
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9. The City admits the allegations of Paragraph 9 of Plaintiffs' Complaint. PARTIES
10. The City admits that CCDC is a Colorado non-profit corporation, but is without sufficient knowledge or infonnation to fonn a belief as to the truth of the remaining allegations of Paragraph 10 of Plaintiffs' Complaint and therefore denies the same.
11. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 11 of Plaintiffs' Complaint and therefore denies the same.
12. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 12 of Plaintiffs' Complaint and therefore denies the same.
13. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 13 of Plaintiffs' Complaint and therefore denies the same.
14. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 14 of Plaintiffs' Complaint and therefore denies the same.
15. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 15 of Plaintiffs' Complaint and therefore denies the same.
16. The City is without sufficient knowledge or infonnation to fonn a belief as to the truth of the allegations of Paragraph 16 of Plaintiffs' Complaint and therefore denies the same.
17. With respect to Paragraph 17, the City affinnatively states as follows: (1) It owns and/or operates facilities in the Perfonning Arts Complex (DPAC), containing the Quigg Newton Denver Municipal Auditorium, housing the Ellie Caulkins Opera House, the Temple Hoyne Buell Theatre, Boettcher Concert Hall, and the Bonfils Theatre Complex, which in tum houses (a) the Stage Theatre, (b) the Space Theatre, (c) the Jones Theatre, (d) the Ricketson Theatre, and
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e) the Seawell Ballroom; (2) The City owns the Boettcher Concert Hall, the Quigg Newton Denver Municipal Auditorium, the Bonfils Theatre Complex and the Gamer Galleria Theatre; (3) The City leases to the Denver Center for the Performing Arts (DCPA) the Bonfils Theatre Complex and leases the Gamer Galleria Theatre to GPAC, Inc. Upon information and belief, Denver Center Attractions, a division of DCPA, leases the Gamer Galleria Theatre from GPAC. Inc.; (4) The Buell Theatre is currently owned by Denver Public Facilities Leasing Trust 2003B and is leased to the City. With respect to the Ellie Caulkins Opera House, the Temple Hoyne Buell Theatre and the Boettcher Concert Hall, the City has entered into numerous user agreements with different tenants, including several of the Defendants, to use these theatres for specific periods of time for the presentation of various types of theatrical, musical and other events. The City does not provide or sell tickets for events. Upon information and belief, the individual users of the facilities either sell tickets to their events or contract with a ticketing agency to sell tickets to their events. The City admits that it operates several web sites, one of which has the URL address, www.artscomplex.com. The City denies all remaining allegations of Paragraph 17.
18. The allegations of Paragraph 18 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 18 are denied.
19. The allegations of Paragraph 19 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 19 are denied.
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20. The allegations of Paragraph 20 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 20 are denied.
21. The allegations of Paragraph 21 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 21 are denied.
GENERAL ALLEGATIONS 22. With respect to Paragraph 22, the City affirmatively states as follows: (1) It owns and/or operates facilities in the Performing Arts Complex (DPAC), containing the Quigg Newton Denver Municipal Auditorium housing the Ellie Caulkins Opera House, the Temple Hoyne Buell Theatre, Boettcher Concert Hall, and the Bonfils Theatre Complex, which in turn houses (a) the Stage Theatre, (b) the Space Theatre, (c) the Jones Theatre, (d) the Ricketson Theatre, and e) the Seawell Ballroom; (2) The City owns the Boettcher Concert Hall, the Quigg Newton Denver Municipal Auditorium, the Bonfils Theatre Complex and the Garner Galleria Theatre; (3) The City leases to the Denver Center for the Performing Arts (DCPA) the Bonfils Theatre Complex and leases the Garner Galleria Theatre to GPAC, Inc. Upon information and belief, Denver Center Attractions, a division of DCPA, leases the Garner Galleria Theatre from GPAC. Inc.; (4) The Buell Theatre is currently owned by Denver Public Facilities Leasing Trust 2003B and is leased to the City. With respect to the Ellie Caulkins Opera House, the Temple Hoyne Buell Theatre and the Boettcher Concert Hall, the City enters into user agreements with different tenants to use these theatres for specific periods of time for the presentation of various types of theatrical, musical and other events. The City denies all rcmaining allcgations of Paragraph 22.
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23. The allegations of Paragraph 23 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 23 are denied.
24. With respect to Paragraph 24 of Plaintiffs' Complaint, the City admits that the Performing Arts Complex is located at 14th and Curtis Streets, and affirmatively states that the Performing Arts Complex includes, among other theatres and auditoria, the Opera House, the Buell Theatre, the Boettcher Concert Hall, the Space Theatre, the Jones Theatre, the Stage Theatre, the Ricketson Theatre, and the Gamer Galleria Theatre. The City further admits that the City's Department of Public Works provides a public parking garage adjacent to the Performing Arts Complex. The City further admits that the Performing Arts Complex is located on a four block site. The City affirmatively states that DCPA, the Colorado Symphony, Opera Colorado and the Colorado Ballet all use or have used the Performing Arts Complex. The City denies all remaining allegations of Paragraph 24.
25. With respect to Paragraph 25, the City affirmatively states that over the years the City has engaged in design and construction activities relating to various aspects of the Performing Arts Complex. The City denies all remaining allegations of Paragraph 25.
26. With respect to Paragraph 26, the City affirmatively states that over the years the City has engaged in design and construction activities relating to certain aspects of the Performing Arts Complex, including certain facilities adjacent to the Boettcher Concert Hall, the Auditorium Theatre in 2004-2005, the Buell Theatre in 1990. The City denies all remaining allegations of Paragraph 26.
27. The City admits the allegations of Paragraph 27 of PlaintiiTs' Complaint.
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28. With respect to Paragraph 28 of Plaintiffs' Complaint the City admits that the Opera House was constructed in 2004-2005 and opened its doors to the public in the fall of2005. The City denies all remaining allegations of Paragraph 28.
29. With respect to Paragraph 29, the City affirmatively states that the Opera House is housed within the existing footprint of the Auditorium Theatre and that certain aspects of the Auditorium Theatre are incorporated into the Opera House during construction. The City denies all remaining allegations of Paragraph 29.
30. With respect to Paragraph 30 of Plaintiffs' Complaint, the City admits that the Opera House provides seats on five (5) levels for viewing of performances and that these levels are the Orchestra level, the Parterre level, the Mezzanine level, the Loge level and the Balcony level. The City denies all remaining allegations of Paragraph 30.
31. The City denies the allegations of Paragraph 31 of Plaintiffs' Complaint. 32. The City denies the allegations of Paragraph 32 of Plaintiffs' Complaint. 33. The City is without sufficient knowledge or information to form a belief as to the truth ofthe allegations contained in Paragraph 33 of Plaintiffs' Complaint and therefore denies the same. 34. With respect to Paragraph 34 of Plaintiffs' Complaint, the City admits that the only access to the Orchestra level ofthe Opera House for people who use wheelchairs or mobility devices is via wheelchair lifts. The City denies all remaining allegations of Paragraph 34. 35. The City denies the allegations of Paragraph 35 of Plaintiffs' Complaint.
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36. The City admits that there was one incident in the fall of 2005 in which a lift malfunctioned at the Opera House, but is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in Paragraph 36 of Plaintiffs' Complaint and therefore denies the same.
37. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 37 of Plaintiffs' Complaint and therefore denies the same.
38. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 38 of Plaintiffs' Complaint and therefore denies the same.
39. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 39 of Plaintiffs' Complaint and therefore denies the same.
40. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 40 of Plaintiffs' Complaint and therefore denies the same.
41. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 41 of Plaintiffs' Complaint and therefore denies the same.
42. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 42 of Plaintiffs' Complaint and therefore denies the same.
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43. The City is without sufficient knowledge or information to fom1 a belief as to the truth of the allegations contained in Paragraph 43 of Plaintiffs' Complaint and therefore denies the same.
44. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 44 of Plaintiffs' Complaint and therefore denies the same.
45. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 45 of Plaintiffs' Complaint and therefore denies the same.
46. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 46 of Plaintiffs' Complaint and therefore denies the same.
47. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 47 of Plaintiffs' Complaint and therefore denies the same.
48. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 48 of Plaintiffs' Complaint and therefore denies the same.
49. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 49 of Plaintiffs' Complaint and therefore denies the same.
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50. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 50 of Plaintiffs' Complaint and therefore denies the same.
51. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 51 of Plaintiffs' Complaint and therefore denies the same.
52. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 52 of Plaintiffs' Complaint and therefore denies the same.
53. Paragraph 53 of Plaintiffs' Complaint states legal conclusions to which no response is required. To the extent a response is required, the City denies each allegation of Paragraph 53.
54. With respect to Paragraph 54 of Plaintiffs' Complaint the City admits that it has made certain modifications to wheelchair seating in the Orchestra level of the Opera House, but denies the remaining allegations contained in Paragraph 54 of Plaintiffs' Complaint.
55. The allegations of Paragraph 55 of Plaintiffs' Complaint are not directed at the City, and therefore no response is required or given by the City. To the extent a response is required, the allegations of Paragraph 55 are denied.
56. With respect to Paragraph 56 of Plaintiffs' Complaint, the City affirmatively states that CCDC and the City discussed several issues regarding accessibility issues at the Opera House and the City affirmatively states that during the course of a dialogue regarding the issues,
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Plaintiffs filed this lawsuit. The City denies the remainder of the allegations of Paragraph 56 of Plaintiffs' Complaint not expressly admitted herein.
57. With respect to Paragraph 57 of Plaintiffs' Complaint, the City affirmatively states that the Buell Theatre was constructed in 1991 and that it has approximately 2,884 seats. The City denies all remaining allegations of Paragraph 57.
58. The City denies the allegations of Paragraph 58 of Plaintiffs' Complaint. 59. The City denies the allegations of Paragraph 59 of Plaintiffs' Complaint. 60. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 60 of Plaintiffs' Complaint and therefore denies the same. 61. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 61 of Plaintiffs' Complaint and therefore denies the same. 62. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 62 of Plaintiffs' Complaint and therefore denies the same. 63. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 63 of Plaintiffs' Complaint and therefore denies the same. 64. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 64 of Plaintiffs' Complaint and therefore denies thc samc.
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65. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 65 of Plainti ffs' Complaint and therefore denies the same.
66. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 66 of Plaintiffs' Complaint and therefore denies the same.
67. The City denies the allegations of Paragraph 67 of Plaintiffs' Complaint. 68. With respect to Paragraph 68 of Plaintiffs' Complaint, insofar as the allegations are directed at the City, the City denies that it is responsible for providing tickets for wheelchair accessible seating at the Buell Theatre or that it has discriminated in its ticketing policies. The City is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in Paragraph 68 and therefore denies the same. 69. Insofar as Paragraph 69 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 69 of Plaintiffs' Complaint and therefore denies the same. 70. Insofar as Paragraph 70 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 70 of Plaintiffs' Complaint and therefore denies the same. 71. Insofar as Paragraph 71 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 71 of Plaintiffs' Complaint and therefore denies the same.
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72. Insofar as Paragraph 72 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 72 of Plaintiffs' Complaint and therefore denies the same.
73. Insofar as Paragraph 73 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 73 of Plaintiffs' Complaint and therefore denies the same.
74. With respect to Paragraph 74 of Plaintiffs' Complaint, the City affirmatively states that CCDC and the City discussed several issues regarding accessibility issues at the Opera House and the City affirmatively states that during the course of a dialogue regarding the issues, Plaintiffs filed this lawsuit. The City denies the remainder of the allegations of Paragraph 74 of Plaintiffs' Complaint not expressly admitted herein.
75. With respect to Paragraph 75 of Plaintiffs' Complaint, the City affirmatively states that the Boettcher Concert Hall was constructed in 1978, that it has approximately 2,634 seats, and that the Colorado Symphony performs at the Boettcher Concert Hall. The City denies all remaining allegations of Paragraph 75.
76. Insofar as Paragraph 76 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 76 of Plaintiffs' Complaint and therefore denies the same.
77. Insofar as Paragraph 77 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 77 of Plaintiffs' Complaint and therefore denies the same.
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78. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 78 of Plaintiffs' Complaint and therefore denies the same.
79. The City admits the allegations contained in Paragraph 79 of Plaintiffs' Complaint.
80. With respect to Paragraph 80 of Plaintiffs' Complaint, the City affirmatively states that it exchanged letters with CCDC and that Ms. Hershey and Ms. Stephens were accommodated. The City denies all remaining allegations of Paragraph 80.
81. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 81 of Plaintiffs' Complaint and therefore denies the same.
82. Insofar as Paragraph 82 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 82 of Plaintiffs' Complaint and therefore denies the same.
83. Insofar as Paragraph 83 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 83 of Plaintiffs' Complaint and therefore denies the same.
84. Insofar as Paragraph 84 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 84 of Plaintiffs' Complaint and therefore denies the same.
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85. Insofar as Paragraph 85 of Plaintiffs' Complaint is directed at the City. the City is without sufficient knowledge or infomlation to fOm1 a belief as to the truth of the allegations contained in Paragraph 85 of Plaintiffs' Complaint and therefore denies the same.
86. Insofar as Paragraph 86 of Plaintiffs' Complaint is directed at the City, the City is without sufficient knowledge or infom1ation to fOm1 a belief as to the truth of the allegations contained in Paragraph 86 of Plaintiffs' Complaint and therefore denies the same.
87. With respect to Paragraph 87 of Plaintiffs' Complaint, the City affirmatively states that CCDC and the City discussed several issues regarding accessibility issues at the Opera House and the City affim1atively states that during the course of a dialogue regarding the issues, Plaintiffs filed this lawsuit. The City further affirmatively states that it informed CCDC of the City's communications with the fire department, and the fire department's directions to the City. The City admits that it sent CCDC a letter informing of an intent to add additional wheelchair seating at the Boettcher Concert Hall in crossover aisles, as directed by the fire department and in the interest of life safety issues. The City admits that CCDC made a request for installation of wheelchair and companion seating on the crossover aisle between orchestra 1 and orchestra 2, and the City denies the remainder of the allegations of Paragraph 87 of Plaintiffs' Complaint.
88. With respect to Paragraph 88 of Plaintiffs' Complaint, the City admits that the Stage Theatre provides more than fifty seats and denies the remainder of the allegations of Paragraph 88 of Plaintiffs' Complaint.
89. The City denies the allegations contained in Paragraph 89 of Plaintiffs' Complaint.
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 Case 1:06-cv-00865-MSK-BNB Document 35 Filed 09/08/06 USDC Colorado Page 1 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation; LAURA HERSHEY; ROBIN STEPHENS; CARRIE ANN LUCAS; HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS; ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS; and DANIEL WILSON,
Plaintiffs v. THE CITY AND COUNTY OF DENVER, COLORADO; DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation; OPERA COLORADO, a Colorado non-profit Corporation; COLORADO BALLET COMPANY, a Colorado non-profit Corporation; and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization, Defendants
ANSWER AND DEFENSES OF DEFENDANT OPERA COLORADO TO PLAINTIFFS' SECOND AMENDED COMPLAINT
Defendant Opera Colorado, by and through its undersigned counsel, hereby answers the numbered paragraphs in plaintiffs' Second Amended Complaint ("complaint"), filed July 12, 2006, and state as follows:
ANSWER 1. Opera Colorado denies the allegations contained within paragraph one of plaintiffs' complaint to the extent they pertain to Opera Colorado. 2. Opera Colorado admits that the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, is a civil rights statute that was signed into law in July 1990. With

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respect to the remaining allegations against Opera Colorado contained within paragraph two of plaintiffs' complaint, Opera Colorado denies those allegations.
3. Opera Colorado neither admits nor denies the allegations contained within paragraph three of plaintiffs' complaint as the ADA and its legislative history presumably speaks for itself and/or the allegations call for a legal conclusion.
4. Opera Colorado neither admits nor denies the allegations contained within paragraph four of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Opera Colorado.
5. To the extent the allegations contained within paragraph five of plaintiffs' complaint directed against Opera Colorado, Opera Colorado denies the allegations.
6. Denied. 7. To the extent the allegations contained within paragraph seven of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
JURISDICTION 8. Opera Colorado neither admits nor denies the allegations contained within paragraph eight of plaintiffs' complaint as they call for a legal conclusion. 9. Opera Colorado neither admits nor denies the allegations contained within paragraph nine of plaintiffs' complaint as they call for a legal conclusion.
PARTIES 10. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph ten of plaintiffs' complaint and therefore denies them.
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11. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 11 of plaintiffs' complaint and therefore denies them.
12. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 12 of plaintiffs' complaint and therefore denies them.
13. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 13 of plaintiffs' complaint and therefore denies them.
14. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 14 of plaintiffs' complaint and therefore denies them.
15. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 15 of plaintiffs' complaint and therefore denies them.
16. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 16 of plaintiffs' complaint and therefore denies them.
17. Many of the allegations contained within paragraph 17 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required from Opera Colorado. Despite the foregoing, Opera Colorado admits that it enters into user agreements with the City for use of the Opera House.
18. The allegations contained within paragraph 18 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
19. Opera Colorado admits that it is a Colorado non-profit organization that promotes opera in Colorado. Opera Colorado further admits that it has entered into user agreements with the City to hold operas in the Opera House. Opera Colorado also admits that it has a website with the URL address of www.operacolorado.org and that it has previously held operas in the
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· Buell Theatre and Boettcher Concert Hall. Opera Colorado neither admits nor denies the allegations contained within paragraph 19 of plaintiffs' complaint that call for a legal conclusion.
20. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 20 of plaintiffs' complaint and therefore denies them.
21. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 21 of plaintiffs' complaint and therefore denies them.
GENERAL ALLEGATIONS 22. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 22 of plaintiffs' complaint and therefore denies them. 23. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 23 of plaintiffs' complaint and therefore denies them. 24. Opera Colorado admits that the Performing Arts Complex ("PAC") is located at 14th and Curtis streets. Opera Colorado further admits that the Ellie Caulkins Opera House, Boettcher Concert Hall, the Temple Hoyne Buell Theatre, the Garner Galleria Theatre, and the Helen Bonfils Theatre Complex, which includes the Stage, Space, Ricketson and Jones theaters and the Donald R. Seawell Grand Ballroom, are located in the Performing Arts Complex. Opera Colorado admits that there is a parking garage within the PAC and that the PAC is an approximately 4-square block site owned and operated by the city. Opera Colorado admits that it conducts performances in the Opera House. Opera Colorado denies all other allegations contained within paragraph 24 of plaintiffs' complaint. 25. The allegations contained within paragraph 25 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
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26. The allegations contained within paragraph 26 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
27. Opera Colorado admits that it has held performances in the Opera House. The other allegations contained within paragraph 27 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
28. Admit. 29. Admit. 30. Opera Colorado admits that the Opera House has Orchestra, Parterre, Mezzanine, Loge and Balcony sections. Opera Colorado also admits that the Opera House has a number of levels. Opera Colorado is without knowledge or information as to the truth of the remaining allegations contained within paragraph 30 and/or the allegations are not directed to Opera Colorado and therefore no response is required. 31. Denied. 32. Denied. 33. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 33 of plaintiffs' complaint and therefore denies them. 34. Denied. 35. Denied. 36. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 36 of plaintiffs' complaint and therefore denies them. 37. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 37 of plaintiffs' complaint and therefore denies them.
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38. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 38 of plaintiffs' complaint and therefore denies them.
39. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 39 of plaintiffs' complaint and therefore denies them.
40. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 40 of plaintiffs' complaint and therefore denies them.
41. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 41 of plaintiffs' complaint and therefore denies them.
42. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 42 of plaintiffs' complaint and therefore denies them.
43. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 43 of plaintiffs' complaint and therefore denies them.
44. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 44 of plaintiffs' complaint and therefore denies them.
45. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 45 of plaintiffs' complaint and therefore denies them.
46. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 46 of plaintiffs' complaint and therefore denies them.
47. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 47 of plaintiffs' complaint and therefore denies them.
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48. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 48 of plaintiffs' complaint and therefore denies them.
49. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 49 of plaintiffs' complaint and therefore denies them.
50. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 50 of plaintiffs' complaint and therefore denies them.
51. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 51 of plaintiffs' complaint and therefore denies them.
52. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 52 of plaintiffs' complaint and therefore denies them.
53. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 53 and/or the allegations call for a legal conclusion and no answer is required.
54. To the extent the allegations contained within paragraph 54 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
55. Opera Colorado admits that tickets to performances at the Opera House are sold through Ticketmaster. To the extent the other allegations contained within paragraph 55 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
56. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 56 of plaintiffs' complaint and therefore denies them.
57. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 57 of plaintiffs' complaint and therefore denies them.
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58. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 58 of plaintiffs' complaint and therefore denies them.
59. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 59 of plaintiffs' complaint and therefore denies them.
60. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 60 of plaintiffs' complaint and therefore denies them.
61. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 61 of plaintiffs' complaint and therefore denies them.
62. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 62 of plaintiffs' complaint and therefore denies them.
63. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 63 of plaintiffs' complaint and therefore denies them.
64. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 64 of plaintiffs' complaint and therefore denies them.
65. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 65 of plaintiffs' complaint and therefore denies them.
66. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 66 of plaintiffs' complaint and therefore denies them.
67. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 67 of plaintiffs' complaint and therefore denies them.
68. To the extent allegations contained within paragraph 68 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
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69. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 69 of plaintiffs' complaint and therefore denies them.
70. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 70 of plaintiffs' complaint and therefore denies them.
71. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 71 of plaintiffs' complaint and therefore denies them.
72. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 72 of plaintiffs' complaint and therefore denies them.
73. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 73 of plaintiffs' complaint and therefore denies them.
74. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 74 of plaintiffs' complaint and therefore denies them.
75. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 75 of plaintiffs' complaint and therefore denies them.
76. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 76 of plaintiffs' complaint and therefore denies them.
77. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 77 of plaintiffs' complaint and therefore denies them.
78. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 78 of plaintiffs' complaint and therefore denies them.
79. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 79 of plaintiffs' complaint and therefore denies them.
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80. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 80 of plaintiffs' complaint and therefore denies them.
81. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 81 of plaintiffs' complaint and therefore denies them.
82. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 82 of plaintiffs' complaint and therefore denies them.
83. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 83 of plaintiffs' complaint and therefore denies them.
84. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 84 of plaintiffs' complaint and therefore denies them.
85. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 85 of plaintiffs' complaint and therefore denies them.
86. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 86 of plaintiffs' complaint and therefore denies them.
87. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 87 of plaintiffs' complaint and therefore denies them.
88. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 88 of plaintiffs' complaint and/or the paragraph calls for a legal conclusion and no response is necessary.
89. Opera Colorado neither admits nor denies the allegations contained within paragraph 89 of plaintiffs' complaint as they call for a legal conclusion.
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90. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 90 of plaintiffs' complaint and therefore denies them.
91. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 91 of plaintiffs' complaint and therefore denies them.
92. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 92 of plaintiffs' complaint and therefore denies them.
93. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 93 of plaintiffs' complaint and therefore denies them.
94. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 94 of plaintiffs' complaint and therefore denies them.
95. Through Opera Colorado's website, a link to Ticketmaster is available. Upon information and belief TTY service is available through Ticketmaster.
96. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 96 of plaintiffs' complaint and therefore denies them.
97. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 97 of plaintiffs' complaint and therefore denies them.
98. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 98 of plaintiffs' complaint and therefore denies them.
99. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 99 of plaintiffs' complaint and therefore denies them.
100. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 100 of plaintiffs' complaint and therefore denies them.
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101. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 101 of plaintiffs' complaint and therefore denies them.
102. Denied. 103. Admit. 104. The allegations contained within paragraph 104 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado. 105. The allegations contained within paragraph 105 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado. 106. The allegations contained within paragraph 106 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado. 107. The allegations contained within paragraph 107 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado. 108. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 108 of plaintiffs' complaint and therefore denies them. 109. To the extent the allegations contained within paragraph 109 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations. 110. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 110 of plaintiffs' complaint and therefore denies them. 111. To the extent the allegations contained within paragraph 111 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations. 112. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 112 of plaintiffs' complaint and therefore denies them.
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113. To the extent the allegations contained within paragraph 113 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
114. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 114 of plaintiffs' complaint and therefore denies them.
115. To the extent the allegations contained within paragraph 115 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
116. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 116 of plaintiffs' complaint and therefore denies them.
117. To the extent the allegations contained within paragraph 117 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
118. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 118 of plaintiffs' complaint and therefore denies them.
119. To the extent the allegations contained within paragraph 119 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
120. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 120 of plaintiffs' complaint and therefore denies them.
121. To the extent the allegations contained within paragraph 121 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
122. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 122 of plaintiffs' complaint and therefore denies them.
123. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 123 of plaintiffs' complaint and therefore denies them.
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124. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 124 of plaintiffs' complaint and therefore denies them.
125. To the extent the allegations contained within paragraph 125 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
126. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 126 of plaintiffs' complaint and therefore denies them.
127. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 127 of plaintiffs' complaint and therefore denies them.
128. To the extent the allegations contained within paragraph 128 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
129. To the extent the allegations contained within paragraph 129 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
130. To the extent the allegations contained within paragraph 130 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
131. Opera Colorado denies that it has been a source of discrimination in the community. Opera Colorado is without knowledge or information as to the truth of the other allegations contained within paragraph 131 of plaintiffs' complaint and therefore denies them.
132. To the extent the allegations contained within paragraph 132 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
133. To the extent the allegations contained within paragraph 133 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
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134. Opera Colorado denies that it has discriminated. Opera Colorado is without knowledge or information as to the truth of the other allegations contained within paragraph 134 of plaintiffs' complaint and therefore denies them.
135. Opera Colorado neither admits nor denies the allegations contained within paragraph 135 of plaintiffs' complaint as they call for a legal conclusion.
136. To the extent the allegations contained within paragraph 136 of plaintiffs' complaint are directed against Opera Colorado, Opera Colorado denies the allegations.
FIRST CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Americans with Disabilities Act)
137. In response to paragraph 137 of plaintiffs' complaint, Opera Colorado hereby incorporates the foregoing responses as if fully set forth herein.
138. Opera Colorado neither admits nor denies the allegations contained within paragraph 138 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Opera Colorado.
139. Opera Colorado neither admits nor denies the allegations contained within paragraph 139 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Opera Colorado.
140. The allegations contained within paragraph 140 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
141. The allegations contained within paragraph 141 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
SECOND CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Rehabilitation Act)
15

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142. In response to paragraph 142 of plaintiffs' complaint, Opera Colorado hereby incorporates the foregoing responses as if fully set forth herein.
143. Opera Colorado neither admits nor denies the allegations contained within paragraph 143 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Opera Colorado.
144. Opera Colorado is without knowledge or information as to the truth of the allegations contained within paragraph 144 of plaintiffs' complaint and therefore denies them.
145. The allegations contained within paragraph 145 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
146. The allegations contained within paragraph 146 of plaintiffs' complaint are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
THIRD CLAIM FOR RELIEF (Against Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company,
Colorado Symphony Association: Americans with Disabilities Act) 147. In response to paragraph 147 of plaintiffs' complaint, Opera Colorado hereby incorporates the foregoing responses as if fully set forth herein. 148. Opera Colorado neither admits nor denies the allegations contained within paragraph 148 as they call for a legal conclusion. 149. Opera Colorado denies the allegations contained within paragraph 149 to the extent they pertain to Opera Colorado. 150. Opera Colorado denies the allegations contained within paragraph 150 to the extent they pertain to Opera Colorado.
16

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151. Opera Colorado denies the allegations contained within paragraph 151 to the extent they pertain to Opera Colorado.
FOURTH CLAIM FOR RELIEF (Against all Defendants: Colorado Anti-Discrimination Act) 152. In response to paragraph 152 of plaintiffs' complaint, Opera Colorado hereby incorporates the foregoing responses as if fully set forth herein. 153. Opera Colorado neither admits nor denies the allegations contained within paragraph 153 as the Colorado Anti-Discrimination Act presumably speaks for itself and/or the allegations call for a legal conclusion. 154. Opera Colorado neither admits nor denies the allegations contained within paragraph 154 as they call for a legal conclusion. 155. Opera Colorado neither admits nor denies the allegations contained within paragraph 155 as they call for a legal conclusion. 156. Opera Colorado denies the allegations contained within paragraph 156 to the extent they pertain to Opera Colorado. 157. Opera Colorado neither admits nor denies the allegations contained within paragraph 157 as they call for a legal conclusion. 158. Opera Colorado denies the allegations contained within paragraph 158 to the extent they pertain to Opera Colorado.
FIFTH CLAIM FOR RELIEF (Against the City and County of Denver and the Denver Center for Performing Arts: Colorado
Consumer Protection Act)
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159. In response to paragraph 159 of plaintiffs' complaint, Opera Colorado hereby incorporates the foregoing responses as if fully set forth herein.
160. Opera Colorado neither admits nor denies the allegations contained within paragraph 160 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
161. Opera Colorado is without sufficient knowledge or information to form a belief as to the truth of the allegations contained within paragraph 161 and therefore denies them.
162. Opera Colorado neither admits nor denies the allegations contained within paragraph 162 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
163. Opera Colorado neither admits nor denies the allegations contained within paragraph 163 as the allegations call for a legal conclusion.
164. Opera Colorado neither admits nor denies the allegations contained within paragraph 164 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
165. The allegations contained within paragraph 165 are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
166. The allegations contained within paragraph 166 are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
167. The allegations contained within paragraph 167 are not directed to Opera Colorado and therefore no response is required by Opera Colorado.
168. Opera Colorado denies the allegations contained within paragraph 168 to the extent they pertain to Opera Colorado.
169. To the extent the paragraphs beginning "PRAYER FOR RELIEF" on page 38 of plaintiffs' complaint contain any factual allegations, Opera Colorado denies these allegations.
18

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Opera Colorado also denies that plaintiffs are entitled to any of the relief set forth therein, or otherwise.
170. Opera Colorado specifically denies that it committed any of the allegedly wrongful acts set forth in plaintiffs' complaint and further denies that plaintiffs are entitled to any award of relief, whether consisting of compensatory or other damages, attorneys' fees, costs, and/or other relief, from Opera Colorado.
171. Each and every allegation set forth in plaintiffs' complaint not specifically admitted herein is expressly denied.
ATTORNEYS' FEES Opera Colorado has retained the undersigned counsel, and has agreed to pay its their reasonable fees for services. Pursuant to 28 U.S.c. § 1927 and 42 U.S.C. § 12205, Opera Colorado is entitled to recover its attorneys' fees and costs incurred in this action.
AFFIRMATIVE AND OTHER DEFENSES As and by way of affirmative defenses, Opera Colorado states as follows:
FIRST DEFENSE Plaintiffs' complaint fails to state a claim upon which relief can be granted against Opera Colorado.
SECOND DEFENSE Plaintiffs have failed to mitigate their damages, if any.
THIRD DEFENSE To the extent any of plaintiffs' claims fall outside the applicable statute of limitations, or to which plaintiffs failed to exhaust administrative remedies, they are barred.
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FOURTH DEFENSE Plaintiffs' claims are barred, in whole or in part, by one or more of the equitable doctrines of laches, estoppel, waiver, or ratification.
FIFTH DEFENSE Any damages plaintiffs suffered were due to their own acts or omissions, or the acts or omissions of others besides Opera Colorado.
SIXTH DEFENSE Plaintiffs have brought this case in bad faith, without adequate factual basis or investigation, without a prior request or demand of any sort, and for the improper purpose of harassment and recovery of needless attorneys' fees, expenses, and costs.
SEVENTH DEFENSE Some or all of plaintiffs lack standing to bring this action.
EIGHTH DEFENSE Some or all of plaintiffs' claims are barred from proceeding and from relief due to the failure to join indispensable parties.
NINTH DEFENSE Plaintiffs have demanded modifications which are either not readily achievable, not required by law, technically infeasible, would create an undue hardship on Opera Colorado, would fundamentally alter the way Opera Colorado provides services to the public, or creates a direct threat to the health and safety of plaintiffs or others.
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TENTH DEFENSE Plaintiffs' claims are barred, in whole or in part, because, at all relevant times, Opera Colorado acted in good faith, lawfully, and in accordance with all applicable federal, state, and local law.
ELEVENTH DEFENSE Opera Colorado did not commit the wrongs alleged in plaintiffs' complaint.
TWELFTH DEFENSE Some or all of plaintiffs' claims are moot.
THIRTEENTH DEFENSE Prior to and/or following the institution of this action, corrective actions have been taken to eliminate accessibility issues that were the subject of plaintiffs' complaint.
FOURTEENTH DEFENSE Opera Colorado denies that plaintiffs are entitled to any of the relief sought in their complaint, or otherwise.
FIFTEENTH DEFENSE Plaintiffs' claims for monetary damages may be barred, reduced, or otherwise limited pursuant to statutory damage caps.
SIXTEENTH DEFENSE Opera Colorado reserves the right to add other defenses that may be incorporated herein pursuant to law.
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WHEREFORE, Opera Colorado prays that plaintiffs take nothing from their complaint and that judgment be awarded against plaintiffs, and in favor of Opera Colorado, together with costs, attorneys' fees, and any other further relief the court deems just and proper.
Respectfully submitted this 8th day of September, 2006. sf John C. Lowrie COLLEEN M. REA Colorado Bar No. 24960 JOHN C. LOWRIE Colorado Bar. No. 31379 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, Colorado 80202 Tel: (303) 592-8860 Fax: (303) 592-8861 e-mail: jlowrie@fordharrison.com
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CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2006, a true and correct copy of the foregoing ANSWER AND DEFENSES OF DEFENDANT OPERA COLORADO TO PLAINTIFFS' SECOND AMENDED COMPLAINT was filed and served via CMfECF addressed to the following:

Kevin W. Williams Legal Program Director 655 Broadway, Suite 775 Denver, Colorado 80203 kwilliams@ccdconline.org

Timothy Patrick Fox Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 tfox@foxrob.com

Norman R. Bangeman, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 onnan. bangeman@ci.denver.co.us

Ashley Elizabeth Arroyo Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 ashley.arroyo@ci.denver.co.us

John C. Ruh, Esq. Kathrin H. Weston, Esq. Holme, Roberts & Owen LLC 1700 Lincoln Street, Suite 4100 Denver, CO 80203-4541 james.ruh@hro.com kathrin. Weston@hro.com

Martin Semple, Esq. Semple, Mooney, Miller & Farrington, P.C. The Chancery Building, Suite 1308 1120 Lincoln Street Denver, CO 80203 msemple@smmpc.com,

sf John C. Lowrie John C. Lowrie, Esq. #31379 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-Mail: jlowrie@fordharrison.com ATTORNEYS FOR DEFENDANT OPERA COLORADO

 
 Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 1 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation; LAURA HERSHEY; ROBIN STEPHENS; CARRIE ANN LUCAS; HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS; ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS; and DANIEL WILSON,
Plaintiffs
v.
THE CITY AND COUNTY OF DENVER, COLORADO; DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation; OPERA COLORADO, a Colorado non-profit Corporation; COLORADO BALLET COMPANY, a Colorado non-profit Corporation; and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants
ANSWER AND DEFENSES OF DEFENDANT COLORADO SYMPHONY ASSOCIATION TO PLAINTIFFS' SECOND AMENDED COMPLAINT
Defendant Colorado Symphony Association ("Colorado Symphony"), by and through its undersigned counsel, hereby answers the numbered paragraphs in plaintiffs' Second Amended Complaint ("complaint"), filed July 12, 2006, and state as follows:
ANSWER 1. Colorado Symphony denies the allegations contained within paragraph one of plaintiffs' complaint to the extent they pertain to Colorado Symphony. 2. Colorado Symphony admits that the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, is a civil rights statute that was signed into law in July 1990. With

Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 2 of 23
respect to the remaining allegations against Colorado Symphony contained within paragraph two of plaintiffs' complaint, Colorado Symphony denies those allegations.
3. Colorado Symphony neither admits nor denies the allegations contained within paragraph three of plaintiffs' complaint as the ADA and its legislative history presumably speaks for itself and/or the allegations call for a legal conclusion.
4. Colorado Symphony neither admits nor denies the allegations contained within paragraph four of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Colorado Symphony.
5. To the extent the allegations contained within paragraph five of plaintiffs' complaint directed against Colorado Symphony, Colorado Symphony denies the allegations.
6. Denied. 7. To the extent the allegations contained within paragraph seven of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
JURISDICTION 8. Colorado Symphony neither admits nor denies the allegations contained within paragraph eight of plaintiffs' complaint as they call for a legal conclusion. 9. Colorado Symphony neither admits nor denies the allegations contained within paragraph nine of plaintiffs' complaint as they call for a legal conclusion.
PARTIES 10. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph ten of plaintiffs' complaint and therefore denies them.
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11. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 11 of plaintiffs' complaint and therefore denies them.
12. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 12 of plaintiffs' complaint and therefore denies them.
13. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 13 of plaintiffs' complaint and therefore denies them.
14. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 14 of plaintiffs' complaint and therefore denies them.
15. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 15 of plaintiffs' complaint and therefore denies them.
16. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 16 of plaintiffs' complaint and therefore denies them.
17. Many of the allegations contained within paragraph 17 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required from Colorado Symphony. Despite the foregoing, Colorado Symphony admits that it enters into agreements with the City to use some of the Performing Arts Complex facilities.
18. The allegations contained within paragraph 18 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
19. The allegations contained within paragraph 19 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
20. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 20 of plaintiffs' complaint and therefore denies them.
3

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21. Colorado Symphony admits that it is a Colorado non-profit organization that schedules, promotes and performs symphonies at certain facilities within the Performing Arts Complex ("PAC"), many of which are in the Boettcher Concert Hall. Colorado Symphony admits that it enters into agreements with the city to perform in some of the PAC's facilities. Colorado Symphony also admits that it has a web site with the URL address :www,_g_oJQI~td9~ymQJ}QnY-,Qrg. To the extent the other allegations within paragraph 21 of plaintiffs' complaint call for a legal conclusion, Colorado Symphony denies them.
GENERAL ALLEGATIONS 22. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 22 of plaintiffs' complaint and therefore denies them. 23. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 23 of plaintiffs' complaint and therefore denies them. 24. Colorado Symphony admits that the Performing Arts Complex ("PAC") is located at 14th and Curtis streets. Colorado Symphony further admits that the Ellie Caulkins Opera House, Boettcher Concert Hall, the Temple Hoyne Buell Theatre, the Garner Galleria Theatre, and the Helen Bonfils Theatre Complex, which includes the Stage, Space, Ricketson and Jones theaters and the Donald R. Seawell Grand Ballroom, are located in the Performing Arts Complex. Colorado Symphony admits that there is a parking garage within the PAC and that the PAC is an approximately 4-square block site owned and operated by the city. Colorado Symphony admits that it conducts performances in certain PAC facilities. Colorado Symphony denies all other allegations contained within paragraph 24 of plaintiffs' complaint.
4

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25. The allegations contained within paragraph 25 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
26. The allegations contained within paragraph 26 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
27. The allegations contained within paragraph 25 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
28. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 28 of plaintiffs' complaint and therefore denies them.
29. The allegations contained within paragraph 29 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
30. The allegations contained within paragraph 30 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
31. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 31 of plaintiffs' complaint and therefore denies them.
32. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 32 of plaintiffs' complaint and therefore denies them.
33. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 33 of plaintiffs' complaint and therefore denies them.
34. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 34 of plaintiffs' complaint and therefore denies them.
35. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 35 of plaintiffs' complaint and therefore denies them.
5

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36. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 36 of plaintiffs' complaint and therefore denies them.
37. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 37 of plaintiffs' complaint and therefore denies them.
38. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 38 of plaintiffs' complaint and therefore denies them.
39. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 39 of plaintiffs' complaint and therefore denies them.
40. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 40 of plaintiffs' complaint and therefore denies them.
41. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 41 of plaintiffs' complaint and therefore denies them.
42. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 42 of plaintiffs' complaint and therefore denies them.
43. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 43 of plaintiffs' complaint and therefore denies them.
44. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 44 of plaintiffs' complaint and therefore denies them.
45. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 45 of plaintiffs' complaint and therefore denies them.
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46. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 46 of plaintiffs' complaint and therefore denies them.
47. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 47 of plaintiffs' complaint and therefore denies them.
48. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 48 of plaintiffs' complaint and therefore denies them.
49. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 49 of plaintiffs' complaint and therefore denies them.
50. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 50 of plaintiffs' complaint and therefore denies them.
51. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 51 of plaintiffs' complaint and therefore denies them.
52. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 52 of plaintiffs' complaint and therefore denies them.
53. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 53 and/or the allegations call for a legal conclusion and no answer is required.
54. To the extent the allegations contained within paragraph 54 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
55. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 55 and/or the allegations call for a legal conclusion and no answer is required.
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56. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 56 of plaintiffs' complaint and therefore denies them.
57. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 57 of plaintiffs' complaint and therefore denies them.
58. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 58 of plaintiffs' complaint and therefore denies them.
59. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 59 of plaintiffs' complaint and therefore denies them.
60. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 60 of plaintiffs' complaint and therefore denies them.
61. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 61 of plaintiffs' complaint and therefore denies them.
62. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 62 of plaintiffs' complaint and therefore denies them.
63. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 63 of plaintiffs' complaint and therefore denies them.
64. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 64 of plaintiffs' complaint and therefore denies them.
65. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 65 of plaintiffs' complaint and therefore denies them.
66. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 66 of plaintiffs' complaint and therefore denies them.
8

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67. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 67 of plaintiffs' complaint and therefore denies them.
68. To the extent allegations contained within paragraph 68 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
69. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 69 of plaintiffs' complaint and therefore denies them.
70. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 70 of plaintiffs' complaint and therefore denies them.
71. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 71 of plaintiffs' complaint and therefore denies them.
72. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 72 of plaintiffs' complaint and therefore denies them.
73. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 73 of plaintiffs' complaint and therefore denies them.
74. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 74 of plaintiffs' complaint and therefore denies them.
75. Colorado Symphony admits that it utilizes Boettcher Concert Hall. Colorado Symphony is either without knowledge or information as to the truth of the remaining allegations contained within paragraph 75 or specifically denies them.
76. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 76 of plaintiffs' complaint and therefore denies them.
9

Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 10 of 23
77. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 77 of plaintiffs' complaint and therefore denies them.
78. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 78 of plaintiffs' complaint and therefore denies them.
79. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 79 of plaintiffs' complaint and therefore denies them.
80. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 80 of plaintiffs' complaint and therefore denies them.
81. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 81 of plaintiffs' complaint and therefore denies them.
82. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 82 of plaintiffs' complaint and therefore denies them.
83. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 83 of plaintiffs' complaint and therefore denies them.
84. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 84 of plaintiffs' complaint and therefore denies them.
85. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 85 of plaintiffs' complaint and therefore denies them.
86. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 86 of plaintiffs' complaint and therefore denies them.
87. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 87 of plaintiffs' complaint and therefore denies them.
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88. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 88 of plaintiffs' complaint and/or the paragraph calls for a legal conclusion and no response is necessary.
89. Colorado Symphony neither admits nor denies the allegations contained within paragraph 89 of plaintiffs' complaint as they call for a legal conclusion.
90. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 90 of plaintiffs' complaint and therefore denies them.
91. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 91 of plaintiffs' complaint and therefore denies them.
92. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 92 of plaintiffs' complaint and therefore denies them.
93. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 93 of plaintiffs' complaint and therefore denies them.
94. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 94 of plaintiffs' complaint and therefore denies them.
95. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 95 of plaintiffs' complaint and therefore denies them.
96. Through Colorado Symphony's website, a link to Ticketmaster is available. Upon information and belief TTY service is available through Ticketmaster.
97. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 97 of plaintiffs' complaint and therefore denies them.
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98. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 98 of plaintiffs' complaint and therefore denies them.
99. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 99 of plaintiffs' complaint and therefore denies them.
100. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 100 of plaintiffs' complaint and therefore denies them.
101. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 101 of plaintiffs' complaint and therefore denies them.
102. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 102 of plaintiffs' complaint and therefore denies them.
103. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 103 of plaintiffs' complaint and therefore denies them.
104. The allegations contained within paragraph 104 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
105. The allegations contained within paragraph 105 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
106. Denied. 107. Admit. 108. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 108 of plaintiffs' complaint and therefore denies them. 109. To the extent the allegations contained within paragraph 109 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
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110. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 110 of plaintiffs' complaint and therefore denies them.
111. To the extent the allegations contained within paragraph III of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
112. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 112 of plaintiffs' complaint and therefore denies them.
113. To the extent the allegations contained within paragraph 113 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
114. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 114 of plaintiffs' complaint and therefore denies them.
115. To the extent the allegations contained within paragraph 115 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
116. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 116 of plaintiffs' complaint and therefore denies them.
117. To the extent the allegations contained within paragraph 117 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
118. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 118 of plaintiffs' complaint and therefore denies them.
119. To the extent the allegations contained within paragraph 119 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
120. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 120 of plaintiffs' complaint and therefore denies them.
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121. To the extent the allegations contained within paragraph 121 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
122. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 122 of plaintiffs' complaint and therefore denies them.
123. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 123 of plaintiffs' complaint and therefore denies them.
124. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 124 of plaintiffs' complaint and therefore denies them.
125. To the extent the allegations contained within paragraph 125 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
126. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 126 of plaintiffs' complaint and therefore denies them.
127. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 127 of plaintiffs' complaint and therefore denies them.
128. To the extent the allegations contained within paragraph 128 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
129. To the extent the allegations contained within paragraph 129 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
130. To the extent the allegations contained within paragraph 130 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
131. Colorado Symphony denies that it has been a source of discrimination in the community. Colorado Symphony is without knowledge or information as to the truth of the
14

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other allegations contained within paragraph 131 of plaintiffs' complaint and therefore denies them.
132. To the extent the allegations contained within paragraph 132 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
133. To the extent the allegations contained within paragraph 133 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
134. Colorado Symphony denies that it has discriminated. Colorado Symphony is without knowledge or information as to the truth of the other allegations contained within paragraph 134 of plaintiffs' complaint and therefore denies them.
135. Colorado Symphony neither admits nor denies the allegations contained within paragraph 135 of plaintiffs' complaint as they call for a legal conclusion.
136. To the extent the allegations contained within paragraph 136 of plaintiffs' complaint are directed against Colorado Symphony, Colorado Symphony denies the allegations.
FIRST CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Americans with Disabilities Act)
137. In response to paragraph 137 of plaintiffs' complaint, Colorado Symphony hereby incorporates the foregoing responses as if fully set forth herein.
138. Colorado Symphony neither admits nor denies the allegations contained within paragraph 138 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Colorado Symphony.
139. Colorado Symphony neither admits nor denies the allegations contained within paragraph 139 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Colorado Symphony.
15

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140. The allegations contained within paragraph 140 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
141. The allegations contained within paragraph 141 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
SECOND CLAIM FOR RELIEF (Against City and County of Denver: Violation of the Rehabilitation Act)
142. In response to paragraph 142 of plaintiffs' complaint, Colorado Symphony hereby incorporates the foregoing responses as if fully set forth herein.
143. Colorado Symphony neither admits nor denies the allegations contained within paragraph 143 of plaintiffs' complaint as they call for a legal conclusion and/or are not directed against Colorado Symphony.
144. Colorado Symphony is without knowledge or information as to the truth of the allegations contained within paragraph 144 of plaintiffs' complaint and therefore denies them.
145. The allegations contained within paragraph 145 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
146. The allegations contained within paragraph 146 of plaintiffs' complaint are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
THIRD CLAIM FOR RELIEF (Against Denver Center for Performing Arts, Opera Colorado, Colorado Ballet Company,
Colorado Symphony Association: Americans with Disabilities Act) 147. In response to paragraph 147 of plaintiffs' complaint, Colorado Symphony hereby incorporates the foregoing responses as if fully set forth herein.
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148. Colorado Symphony neither admits nor denies the allegations contained within paragraph 148 as they call for a legal conclusion.
149. Colorado Symphony denies the allegations contained within paragraph 149 to the extent they pertain to Colorado Symphony.
150. Colorado Symphony denies the allegations contained within paragraph 150 to the extent they pertain to Colorado Symphony.
151. Colorado Symphony denies the allegations contained within paragraph 151 to the extent they pertain to Colorado Symphony.
FOURTH CLAIM FOR RELIEF (Against all Defendants: Colorado Anti-Discrimination Act) 152. In response to paragraph 152 of plaintiffs' complaint, Colorado Symphony hereby incorporates the foregoing responses as if fully set forth herein. 153. Colorado Symphony neither admits nor denies the allegations contained within paragraph 153 as the Colorado Anti-Discrimination Act presumably speaks for itself and/or the allegations call for a legal conclusion. 154. Colorado Symphony neither admits nor denies the allegations contained within paragraph 154 as they call for a legal conclusion. 155. Colorado Symphony neither admits nor denies the allegations contained within paragraph 155 as they call for a legal conclusion. 156. Colorado Symphony denies the allegations contained within paragraph 156 to the extent they pertain to Colorado Symphony. 157. Colorado Symphony neither admits nor denies the allegations contained within paragraph 157 as they call for a legal conclusion.
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158. Colorado Symphony denies the allegations contained within paragraph 158 to the extent they pertain to Colorado Symphony.
FIFTH CLAIM FOR RELIEF (Against the City and County of Denver and the Denver Center for Performing Arts: Colorado
Consumer Protection Act)
159. In response to paragraph 159 of plaintiffs' complaint, Colorado Symphony hereby incorporates the foregoing responses as if fully set forth herein.
160. Colorado Symphony neither admits nor denies the allegations contained within paragraph 160 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
161. Colorado Symphony is without sufficient knowledge or information to form a belief as to the truth of the allegations contained within paragraph 161 and therefore denies them.
162. Colorado Symphony neither admits nor denies the allegations contained within paragraph 162 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
163. Colorado Symphony neither admits nor denies the allegations contained within paragraph 163 as the allegations call for a legal conclusion.
164. Colorado Symphony neither admits nor denies the allegations contained within paragraph 164 as the Colorado Consumer Protection Act ("CCPA") presumably speaks for itself.
165. The allegations contained within paragraph 165 are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
166. The allegations contained within paragraph 166 are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
167. The allegations contained within paragraph 167 are not directed to Colorado Symphony and therefore no response is required by Colorado Symphony.
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Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 19 of 23
168. Colorado Symphony denies the allegations contained within paragraph 168 to the extent they pertain to Colorado Symphony.
169. To the extent the paragraphs beginning "PRAYER FOR RELIEF" on page 38 of plaintiffs' complaint contain any factual allegations, Colorado Symphony denies these allegations. Colorado Symphony also denies that plaintiffs are entitled to any of the relief set forth therein, or otherwise.
170. Colorado Symphony specifically denies that it committed any of the allegedly wrongful acts set forth in plaintiffs' complaint and further denies that plaintiffs are entitled to any award of relief, whether consisting of compensatory or other damages, attorneys' fees, costs, and/or other relief, from Colorado Symphony.
171. Each and every allegation set forth in plaintiffs' complaint not specifically admitted herein is expressly denied.
ATTORNEYS' FEES Colorado Symphony has retained the undersigned counsel, and has agreed to pay their reasonable fees for services. Pursuant to 28 U.S.c. § 1927 and 42 U.S.C. § 12205, Colorado Symphony is entitled to recover its attorneys' fees and costs incurred in this action.
AFFIRMATIVE AND OTHER DEFENSES As and by way of affirmative defenses, Colorado Symphony states as follows:
FIRST DEFENSE Plaintiffs' complaint fails to state a claim upon which relief can be granted against Colorado Symphony.
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SECOND DEFENSE Plaintiffs have failed to mitigate their damages, if any.
THIRD DEFENSE To the extent any of plaintiffs' claims fall outside the applicable statute of limitations, or to which plaintiffs failed to exhaust administrative remedies, they are barred.
FOURTH DEFENSE Plaintiffs' claims are barred, in whole or in part, by one or more of the equitable doctrines of laches, estoppel, waiver, or ratification.
FIFTH DEFENSE Any damages plaintiffs suffered were due to their own acts or omissions, or the acts or omissions of others besides Colorado Symphony.
SIXTH DEFENSE Plaintiffs have brought this case in bad faith, without adequate factual basis or investigation, without a prior request or demand of any sort, and for the improper purpose of harassment and recovery of needless attorneys' fees, expenses, and costs.
SEVENTH DEFENSE Some or all of plaintiffs lack standing to bring this action.
EIGHTH DEFENSE Some or all of plaintiffs' claims are barred from proceeding and from relief due to the failure to join indispensable parties.
NINTH DEFENSE
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Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 21 of 23
Plaintiffs have demanded modifications which are either not readily achievable, not required by law, technically infeasible, would create an undue hardship on Colorado Symphony, would fundamentally alter the way Colorado Symphony provides services to the public, or creates a direct threat to the health and safety of plaintiffs or others.
TENTH DEFENSE Plaintiffs' claims are barred, in whole or in part, because, at all relevant times, Colorado Symphony acted in good faith, lawfully, and in accordance with all applicable federal, state, and local law.
ELEVENTH DEFENSE Colorado Symphony did not commit the wrongs alleged in plaintiffs' complaint.
TWELFTH DEFENSE Some or all of plaintiffs' claims are moot.
THIRTEENTH DEFENSE Prior to and/or following the institution of this action, corrective actions have been taken to eliminate accessibility issues that were the subj ect of plaintiffs' complaint.
FOURTEENTH DEFENSE Colorado Symphony denies that plaintiffs are entitled to any of the relief sought in their complaint, or otherwise.
FIFTEENTH DEFENSE Plaintiffs' claims for monetary damages may be barred, reduced, or otherwise limited pursuant to statutory damage caps.
SIXTEENTH DEFENSE
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Colorado Symphony reserves the right to add other defenses that may be incorporated herein pursuant to law.
WHEREFORE, Colorado Symphony prays that plaintiffs take nothing from their complaint and that judgment be awarded against plaintiffs, and in favor of Colorado Symphony, together with costs, attorneys' fees, and any other further relief the court deems just and proper.
Respectfully submitted this 8th day of September, 2006.
sf John C. Lowrie COLLEEN M. REA Colorado Bar No. 24960 JOHN C. LOWRIE Colorado Bar. No. 31379 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, Colorado 80202 Tel: (303) 592-8860 Fax: (303) 592-8861 e-mail: jlowrie@fordharrison.com
22

Case 1:06-cv-00865-MSK-BNB Document 36 Filed 09/08/06 USDC Colorado Page 23 of 23

CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2006, a true and correct copy of the foregoing ANSWER AND DEFENSES OF DEFENDANT COLORADO SYMPHONY ASSOCIATION TO PLAINTIFFS' SECOND AMENDED COMPLAINT was filed and served via CMlECF addressed to the following:

Kevin W. Williams Legal Program Director 655 Broadway, Suite 775 Denver, Colorado 80203 kwilliams@ccdconline.org

Timothy Patrick Fox Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 tfox@foxrob.com

Norman R. Bangeman, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 orman. bangeman@ci.denver.co.us

Ashley Elizabeth Arroyo Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 ashley.arroyo@ci.denver.co.us

John C. Ruh, Esq. Kathrin H. Weston, Esq. Holme, Roberts & Owen LLC 1700 Lincoln Street, Suite 4100 Denver, CO 80203-4541 james.ruh@hro.com kathrin. Weston@hro.com

Martin Semple, Esq. Semple, Mooney, Miller & Farrington, P.C. The Chancery Building, Suite 1308 1120 Lincoln Street Denver, CO 80203 msemple@smmpc.com,

Denver: 12568.1

sf John C. Lowrie John C. Lowrie, Esq. #31379 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone:(303) 592-8860 Facsimile: (303) 592-8861 E-Mail: jlowrie@fordharrison.com
ATTORNEYS FOR DEFENDANT
COLORADO SYMPHONY
ASSOCIA TION
23

 
 Case 1:06-cv-00865-MSK-BNB Document 77 Filed 07/16/07 USDC Colorado Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, JUDGE
Civil Case No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER, COLORADO, DENVER CENTER FOR PERFORMING ARTS, a Colorado non-profit Corporation, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants. ___________________________________________________________________________
ORDER ___________________________________________________________________________
THIS MATTER having come before the Court on the Stipulated Motion to Dismiss With
Prejudice All Claims of All Plaintiffs Against the Denver Center for the Performing Arts (Doc 76 -
filed July 11, 2007), and the Court being fully advised in the premises, it is therefore
ORDERED that this matter shall be DISMISSED WITH PREJUDICE between all Plaintiffs
and Defendant Denver Center for the Performing Arts, each party to pay their own fees and
costs.
BY THE COURT:

DATED: July 16 , 2007

s/Lewis T. Babcock Lewis T. Babcock, Judge

 
 Case 1:06-cv-00865-MSK-BNB Document 90 Filed 09/11/07 USDC Colorado Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v.
THE CITY AND COUNTY OF DENVER, DENVER CENTER FOR THE PERFORMING ARTS, a Colorado non-profit Corporation, COLORADO, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
___________________________________________________________________________
ORDER OF DISMISSAL WITH PREJUDICE OF ALL CLAIMS OF ALL PLAINTIFFS AGAINST COLORADO BALLET ___________________________________________________________________________

This matter having come before the Court upon the Stipulated Motion to Dismiss,

With Prejudice, All Claims of All Plaintiffs Against Colorado Ballet, and good cause

appearing,

IT IS HEREBY ORDERED that all claims of all Plaintiffs against Defendant Colorado

Ballet in this lawsuit are hereby dismissed, with prejudice, and that this lawsuit is dismissed,

with prejudice, as to Defendant Colorado Ballet, each party to pay their own attorneys’ fees

and costs.

Dated: September 11, 2007

s/Lewis T. Babcock United States District Court Judge

1

 
 Case 1:06-cv-00865-MSK-BNB Document 91 Filed 09/11/07 USDC Colorado Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v.
THE CITY AND COUNTY OF DENVER, DENVER CENTER FOR THE PERFORMING ARTS, a Colorado non-profit Corporation, COLORADO, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
___________________________________________________________________________
ORDER OF DISMISSAL WITH PREJUDICE ___________________________________________________________________________

This matter having come before the Court upon the Stipulated Motion to Dismiss, With Prejudice, All Claims of All Plaintiffs Against Colorado Symphony Association, and good cause appearing,
IT IS HEREBY ORDERED that all claims of all Plaintiffs against Defendant Colorado Symphony Association in this lawsuit are hereby dismissed, with prejudice, and that this lawsuit is dismissed, with prejudice, as to Defendant Colorado Symphony Association, each party to pay their own attorneys’ fees and costs.

Dated: September 11, 2007

s/Lewis T. Babcock United States District Court Judge

1

 
 Case 1:06-cv-00865-MSK-BNB Document 92 Filed 09/11/07 USDC Colorado Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v.
THE CITY AND COUNTY OF DENVER, DENVER CENTER FOR THE PERFORMING ARTS, a Colorado non-profit Corporation, COLORADO, OPERA COLORADO, a Colorado non-profit Corporation, COLORADO BALLET COMPANY, a Colorado non-profit Corporation, and COLORADO SYMPHONY ASSOCIATION, a Colorado non-profit organization,
Defendants.
___________________________________________________________________________
ORDER OF DISMISSAL WITH PREJUDICE OF ALL CLAIMS OF ALL PLAINTIFFS AGAINST OPERA COLORADO ___________________________________________________________________________

This matter having come before the Court upon the Stipulated Motion to Dismiss, With Prejudice, All Claims of All Plaintiffs Against Opera Colorado, and good cause appearing,
IT IS HEREBY ORDERED that all claims of all Plaintiffs against Defendant Opera Colorado in this lawsuit are hereby dismissed, with prejudice, and that this lawsuit is dismissed, with prejudice, as to Defendant Opera Colorado, each party to pay their own attorneys’ fees and costs.

Dated: September 11, 2007

s/Lewis T. Babcock United States District Court Judge

1

 
 Case 1:06-cv-00865-MSK-BNB Document 97 Filed 10/17/07 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER,
Defendant. ___________________________________________________________________________
ORDER ___________________________________________________________________________
This matter having come before the Court upon the Joint Motion for Dismissal with Prejudice of Released Claims, and good cause appearing therefor,
IT IS HEREBY ORDERED that the following claims are dismissed with prejudice, each party to bear its own fees and costs:
1. Plaintiffs’ claims under the Colorado Consumer Protection Act (“CCPA”), id., §§ 6-1-101 et seq.;
2. Plaintiffs’ claims relating venues other than the Ellie Caulkins Opera House; and

Case 1:06-cv-00865-MSK-BNB Document 97 Filed 10/17/07 USDC Colorado Page 2 of 2
3. Plaintiffs’ claims relating to the Ellie Caulkins Opera House resolved by the Parties in the parties’ Release and Partial Settlement Agreement (“Agreement”).
DATED this 17th day of October , 2007. BY THE COURT:
s/Lewis T. Babcock United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant .
THIRD AMENDED AND SUPPLEMENTAL COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Laura Hershey, Carrie Ann Lucas,
Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Asiza Carolyn Kolene Lucas
and Daniel Wilson, by and through their attorneys, Kevin W. Williams, Legal Program Director
of the Colorado Cross-Disability Coalition, and Fox & Robertson, P.C., hereby submit their
Third Amended and Supplemental Complaint for violations of the Americans with Disabilities
Act, the Rehabilitation Act and the Colorado Anti-Discrimination Act.

JURISDICTION 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 3. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies. 4. Plaintiff Laura Hershey is and was at all times material hereto a resident of Colorado residing at 1466 South Lincoln Street, Denver, Colorado 80210. Ms. Hershey is substantially limited in several major life activities, including walking and breathing, and requires the use of a motorized wheelchair for mobility. Laura Hershey is a CCDC member. 5. Plaintiff Carrie Ann Lucas is and was at all times material hereto a resident of Colorado residing at 5601 East Yale Avenue, Denver, Colorado 80222. Ms. Lucas is substantially limited in several major life activities, including walking, hearing, breathing and seeing. She requires the use of a motorized wheelchair for mobility, sign language interpreters for effective communication and screen enhancement software for reading. Carrie Lucas is a CCDC member. 6. Plaintiff Heather Rebekah Renee Lucas is substantially impaired in several major life activities, including walking, speaking, seeing and hearing, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado.
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She is seventeen years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Heather Rebekah Renee Lucas is a CCDC member.
7. Plaintiff Adrianne Emily Monique Lucas is substantially impaired in several major life activities, including walking and speaking, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is eight years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Adrianne Emily Monique Lucas is a CCDC member.
8. Plaintiff Asiza Carolyn Kolene Lucas is substantially impaired in several major life activities because she has a developmental disability, anxiety disorder and Tourette’s Syndrome. At all times material hereto, Miss Lucas was a resident of Colorado. She is twelve years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Plaintiff Asiza Carolyn Kolene Lucas is a CCDC member.
9. Plaintiff Daniel Wilson is and was at all times material hereto a resident of Colorado residing at 3700 East Jewel Avenue, Denver, Colorado 80210. Mr. Wilson is substantially limited in the major life activity of walking, and requires the use of a motorized scooter for mobility. Daniel Wilson is a CCDC member.
10. Defendant City and County of Denver (“City”) owns, operates and leases to others the Ellie Caulkins Opera House (the “Opera House”).
GENERAL ALLEGATIONS 11. The Opera House was designed and constructed in 2004-2005 and opened its doors to the public in or about October of 2005.
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12. The Opera House is housed inside the Quigg Newton Denver Municipal Auditorium (“Auditorium”). The entire inside of the Auditorium was completely renovated and reconstructed. Only the exterior shell of the Auditorium remains.
13. The Opera House was built with and continues to have a number of discriminatory design defects, including but not limited to those described below.
14. Accessible seats in the orchestra section are below the level of the main lobby. To access these seats, the Opera House requires patrons who use wheelchairs to use tiny residential elevators – not lifts; not commercial elevators – that carry only one passenger at a time, malfunction often, and move slowly. These factors, especially in combination, often make it impossible for patrons who use wheelchairs to get to their seats before the beginning of a show or to use the restroom or have a snack at intermission.
15. The residential elevators do not comply with the provisions of the Department of Justice Standards for Accessible Design, 28 C.F.R. pt 36, app. A (“Standards”) governing elevators, as -- among other things -- their internal dimensions are far less than the required 54 inches by 68 inches. See id. § 4.10.9 & Fig. 22; see also generally id. § 4.10.
16. Because the residential elevators are elevators, not lifts, the fact that they fail to comply with § 4.10 of the Standards is sufficient to demonstrate that they are in violation of the Standards and thus Title II of the ADA. Assuming, arguendo, that the residential elevators could be analyzed as lifts, they also fail to comply with the provisions of the Standards governing lifts.
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17. Under the Standards, lifts are requires to comply with the American Society of Mechanical Engineers A17.1 Safety Code for Elevators and Escalators, Section XX, 1990 (“ASME A17.1-1990”) as well as state and local codes. See Standards §§ 4.1.6(g), 4.11.2.
18. The residential elevator used by patrons who use wheelchairs to get to the Orchestra level does not comply with Section XX of the ASME A17.1-1990. That section applies to “Inclined Stairway Chairlifts and Inclined and Vertical Wheelchair Lifts;” it does not cover residential elevators.
19. In addition, Rule 2000.7a of ASME A17.1-1990 states that a lift may not “penetrate a floor.” The House Left residential elevator currently penetrates multiple floors to get from the Orchestra level at the bottom to the Mezzanine level at the top. In addition, both residential elevators penetrate the Main level floor to get from that level to the Orchestra level.
20. Rule 2000.10a of ASME A17.1-1990 requires that operation of the lift car be controlled by a key, and that “up” and “down” control switches at all stations shall be by means of a continuous pressure device. Neither is the case with the residential elevators used in the Opera House.
21. The fact that the residential elevators violate Section XX of ASME A17.1-1990 means that they violate Standards §§ 4.1.6(g) and 4.11.2, which incorporate that section by reference.
22. The residential elevators also fail to comply with the Denver Building Code. The applicable city building codes are the 1997 Uniform Building Code, Vol. 1, 2 and 3 (“UBC-
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1997”), as amended and supplemented by the Amendments to the Building Code for the City and Count of Denver, 1999 edition (“DBC-1999”). See Ord. No. 263, §§ 2, 3 (1999).
23. In buildings such as the Opera House, the DBC requires at least one elevator serving each level, DBC-1999 § 1105.3.1.1, and requires that “[a]ll elevators shall be accessible,” id. § 1105.3.1.2.
24. The residential elevators do not comply with the applicable provisions governing elevators. See, e.g., UBC-1997 § 3003.4.7 (requiring car size that “shall allow for the turning of a wheelchair” and a minimum size of 68 inches by 54 inches).
25. Although the DBC permits “platform lifts” in lieu of elevators, see DBC-1999 § 1105.3.2, the residential elevators in the Opera House are not platform lifts.
26. The fact that the residential elevators violate the DBC-1999 means that they violate Standards § 4.1.6(g) which requires compliance with “state and local codes.”
27. At 33½ inches wide, the residential elevators are too narrow. As part of an accessible route, see Standards § 4.1.6(g), they are required to be at least 36 inches wide, id. § 4.3.3. However, the 33½ inch width can only be remedied by removing the handrail in each residential elevator, which would render it noncompliant with Rule 2000.1a(7) of ASME 17.11990.
28. The residential elevators have accordion doors at either end that tend to trap a user’s feet in front, and parts of their wheelchairs, backpacks or other medical devices in the back. When this happens, the device grinds to halt, further delaying the patron in getting to his or her seat or, for example, to the restroom at intermission.
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29. The residential elevators can be controlled only from the inside, but the size of the residential elevator makes it very difficult for a nondisabled person to accompany a patron in a power wheelchair. Individuals who do not have the ability to push buttons on their own – precisely those individuals most likely to use power chairs – cannot easily use the devices at all.
30. The use of a residential elevator in a commercial facility, in and of itself, is a design defect that, among other things, leads to repeated and predictable malfunctions, in violation of 28 C.F.R. § 35.133. This, in turn, leads to significant discrimination because, as described in greater detail herein, it prevents patrons with disabilities from enjoying benefits of the services, programs, or activities of the Opera House, in violation of 42 U.S.C. § 12132.
31. The lobbies of the residential elevators do not have sufficient maneuvering clearances, in violation of Standards § 4.13.6 and Fig. 25.
32. When it first opened, the Opera House had a number of designated accessible seats in the Orchestra section that were on a slope and were not level, in violation of Standards § 4.33.4.
33. The Opera House provides some wheelchair seating locations that are segregated from their respective companion seats, in violation of Standards § 4.33.3.
34. Wheelchair seating is not sufficiently dispersed in the Opera House in violation of Standards § 4.33.3. For example, there are over 600 seats in the Orchestra level, but only four wheelchair accessible seats, below the one percent required by Standards § 4.1.6(19)(g).
35. Several of the restrooms in the Ellie were designed without adequate turning or maneuvering clearances. For example, several of the family restrooms are too narrow, in
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violation of section 4.22.3 of the Standards or have inadequate clearance at the main door or the door to the accessible stall, in violation of section 4.13.6 and Figure 25.
36. In the Kevin Taylor restaurant, several raised areas were designed and built into the (on information and belief) originally empty, level space, in violation of section 5.4 of the Standards. The bar has no lowered area, in violation of section 5.2. There are no accessible tables, in violation of sections 4.1.3(18), 4.32 and 5.1.
37. The areas adjacent to certain staircases lack detectible warnings. 38. A few of the examples of the discrimination that the Plaintiffs have suffered because of these discriminatory design defects and violations of the ADA are set forth below. 39. During a tour of the Opera House in the fall of 2005, one of the residential elevators malfunctioned, and Ms. Lucas was stuck in it for approximately fifteen minutes. 40. In or about October of 2005, Plaintiff Carrie Ann Lucas and two of her daughters, Heather and Adrianne, attended a performance of the ballet, “Sleeping Beauty” at the Opera House. It took at least twenty minutes for all three of them to use the residential elevator to access their seats in the orchestra level. When they arrived at their seats, the seating locations were not level and on a steep slope. During the performance, Ms. Lucas kept sliding out of her wheelchair. Adrianne Lucas was choking on the strap to hold her in her wheelchair because of the slope. 41. Ms. Lucas complained to a manager who attempted to have her and her children moved to wheelchair seats farther from the stage. Ms. Lucas, Heather, and Adrianne all have visual impairments, which require them to be close to the stage to see. They reserved seats close
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to the stage for this reason. The manager then tried to have them move to another seating section where they would be lined up in a row, each behind the other. Ms. Lucas would not have been able to attend to or communicate with her daughters and the seats they wanted Ms. Lucas and her daughters to move to did not have adequate maneuvering clearances to get in and out of the seats.
42. At intermission, Ms. Lucas and her daughters attempted to access one of the residential elevators. Ms. Lucas pressed the call button. Lights went off, but the device did not come. She tried seven times, but it did not come until an usher went up to retrieve it. This took approximately eight minutes. Ms. Lucas got in the residential elevator, waited for the doors to close, and pushed the button. The lights on the button inside the cab came on, but the elevator didn’t move. After several minutes all the button lights flashed, then the doors opened. Ms. Lucas decided to get out. Not wanting to be trapped in the elevator as she was before, Ms. Lucas decided to try the one on the other side.
43. The route leading from one residential elevator to the other was not level, and Ms. Lucas’ wheelchair slid into the backs of the seats to her left (toward the stage) due to the excessive cross slope of the aisle.
44. The other residential elevator worked, but by the time Ms. Lucas and her daughters all got up to the main level, intermission was over, and there was no time to return. They left without seeing the second act.
45. In or about December of 2005, Ms. Lucas, Heather, and Adrianne attended a performance of “The Nutcracker” at the Opera House. They were not able sit in the wheelchair seats they purchased. The configuration of wheelchair seating was different from when she
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attended before and from the seating plan from which she chose her seats. There was no longer a route between the two residential elevators. There were seats blocking that route.
46. Ms. Lucas and her daughters did not attend performances of any other ballets during the 2005-2006 season because of the problems with the residential elevators.
47. In or about November of 2006, Ms. Lucas and her daughters attended a performance of the “Nutcracker” at the Opera House. Ms. Lucas, Heather and Adrianne were initially unable to access their seats because the vestibule between the residential elevator and their seats was filled with chairs. Ms. Lucas had to find an usher and convince the usher to remove the chairs so they could use the residential elevator.
48. In or about March of 2007, Ms. Lucas and two of her daughters attended a performance of “Where the Wild Things Are”. Ms. Lucas, Heather, and Adrianne were again unable to access their seats because the vestibule between the residential elevator and their seats was filled with chairs. Again, they had to get someone to move the chairs. When Ms. Lucas used the residential elevator to exit after the performance, the accordion doors caught and disconnected a piece of Ms. Lucas’ ventilator tubing.
49. Ms. Lucas and her daughters did not attend any other ballet performances during the 2006-2007 season because of the problems with the residential elevators.
50. In or about September of 2007, Ms. Lucas and two of her daughters, Adrianne and Asiza, attended a performance of “The Little Mermaid” at the Opera House. They purchased tickets in the Orchestra section, and thus were required to use the residential elevator to get to their seats. At intermission, Ms. Lucas started to take her daughter Asiza -- who does not use a
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wheelchair -- to the restroom. Ms. Lucas was forced to leave her other daughter, Adrianne, alone at her seat because the there would not have been time during intermission for both Ms. Lucas and Adrianne to use the residential elevator. Ms. Lucas and Asiza attempted to use the residential elevator together, which required Asiza to stand on the footrest of Ms. Lucas’s wheelchair. Although the usher instructed Ms. Lucas not to push any buttons until the door closed, Ms. Lucas is unable to reach the buttons when she is all the way inside the residential elevator. As a result, the usher also boarded the elevator in order to push the buttons once Ms. Lucas was in place. The usher managed to squeeze into the available space by hanging over the side of Ms. Lucas’ wheelchair. When the usher leaned over Ms. Lucas’s wheelchair, to push the buttons, she leaned on Ms. Lucas’s ventilator tubing, breaking the support arm. However, after the door closed and the usher hit the button, the residential elevator went nowhere. The usher then hit the alarm button and Ms. Lucas tried the emergency phone. While they were stuck, the phone never gave any indication that it had made a connection of any sort.
51. Eventually, all of the lights started flashing and the door opened, still on the Orchestra level where Ms. Lucas had boarded it. Asiza was scared and crying, but still needed to use the restroom. Because Ms. Lucas could not use the residential elevator, an usher agreed to accompany Asiza to the restroom. She was upset and crying when she returned.
52. When Ms. Lucas began using her Blackberry to take notes on what had happened, an usher approached her and told her that she could not have her Blackberry on. This was despite the fact that it was still intermission. Although Ms. Lucas could not get her name,
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another usher, Giselle, told Ms. Lucas that this was the assistant house manager. Giselle also told Ms. Lucas to turn off her Blackberry.
53. In or about November of 2005, Daniel Wilson purchased wheelchair and companion seating tickets for the opera “Carmen” at the Opera House. When Mr. Wilson and his companion arrived, they discovered their seats were separated by a pillar. Mr. Wilson did not want to sit separated from his companion. They were able to change seating locations and be able to sit next to each other because there was an unsold seat. When Mr. Wilson transferred from his scooter to a seat, and without Mr. Wilson’s permission, an employee took his scooter from him.
54. Mr. Wilson has been deterred from ordering tickets for wheelchair seats in the orchestra level because of the presence of the malfunctioning wheelchair residential elevators.
55. Ms. Hershey, her mother and brother attended the opera “Carmen” at the Ellie Caulkins Opera House in or about November of 2005.
56. When she arrived, Ms. Hershey was unable to find the residential elevators to the orchestra level because of inadequate signage or usher assistance.
57. When she finally got to the residential elevator, Ms. Hershey could not access it because of the flow of patrons moving down the stairs.
58. When Ms. Hershey finally entered the residential elevator, it was cramped, and she could not operate the controls. Her brother was able to climb into the residential elevator with her, but there was very little room. Her mother took the stairs.
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59. An usher in the orchestra level showed Ms. Hershey to where her ticketed seats were, but there was no Figaro system (screens that provide translation of the opera libretto) that she could see from her seating location. She asked for a manager. When the manager arrived, he said they were not in the wheelchair seating section, although Ms. Hershey’s tickets were for these seats, and the tickets had the word “accessible” printed on them. The manager suggested that they move to another set of accessible seats. Fortunately, these seats were not sold, and Ms. Hershey was able to sit with her family.
60. Ms. Hershey’s mother, who was seated in a companion seat, had difficulty seeing the Figaro screen from her companion seat.
61. Discriminatory design defects at the Opera House have included and/or continue to include, without limitation, the following:
a. seats in the Orchestra level are not on level ground; b. some wheelchair seating locations are separated from companion seats by
pillars; c. the orchestra level is not accessible to individuals who use wheelchairs via
an elevator; instead, the only access to the orchestra level for individuals who use wheelchairs is via two residential elevators on either side of the orchestra level, which malfunction often and take too long to operate; d. there is no accessible route connecting wheelchair seating locations to the residential elevators in the orchestra level;
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e. the residential elevators will not accommodate some individuals who use wheelchairs and mobility devices, rendering the orchestra level inaccessible to them;
f. the residential elevators are difficult to operate and provide no instruction; g. the controls on the residential elevators are not operable by some
individuals who use wheelchairs or mobility devices; h. the residential elevators are difficult to find; on information and belief,
there is not appropriate signage to indicate to individuals who use wheelchairs or mobility devices where they are located; i. depending on the size of the wheelchair or mobility device, there is insufficient room in the residential elevator for any other passengers; j. the new residential elevators have malfunctioned repeatedly when CCDC members who use wheelchairs have attempted to use them; k. the residential elevators are difficult to enter for individuals who use wheelchairs, because one must turn around an obstruction to enter them and because of the pedestrian traffic flow on the stairs adjacent to the residential elevators; l. the residential elevators are so slow that individuals who use wheelchairs cannot leave the orchestra level and return during intermissions before the performance begins;
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m. wheelchair seats have been sold to individuals who use wheelchairs that have no captioning screens, known as “Figaros;”
n. individuals who use wheelchairs have had to change seating locations because they were sold “Accessible” seats that were not actually accessible;
o. companion seating in some wheelchair seating sections does not offer an equivalent view of the “Figaro” captioning screens;
p. the aisle leading to the front row of the orchestra level where wheelchair seating locations is designated is narrow, and there is no turn around space for an individual who uses a wheelchair;
q. people who use wheelchairs are unable to sit in the seats they have chosen and purchased;
r. the areas adjacent to staircases lack appropriate detectible warnings; s. restrooms were designed in violation of the Standards; and t. the Kevin Taylor restaurant was designed in violation of the Standards. 62. Laura Hershey has attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. Ms. Hershey has experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred Ms. Hershey from attending future performances until the ADA violations and design defects described herein are remedied. 63. Laura Hershey suffered damages as a result of Defendant’s conduct.
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64. Carrie Ann Lucas and her daughters have attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. The Lucases have experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred the Lucases from attending future performances until the ADA violations and design defects described herein are remedied.
65. The Lucases suffered damages as a result of Defendant’s conduct. 66. Daniel Wilson has attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. Mr. Wilson has experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred Mr. Wilson from attending future performances until the ADA violations and design defects described herein are remedied. 67. Mr. Wilson suffered damages as a result of Defendant’s conduct. 68. On information and belief, other CCDC members have attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. On information and belief, these other CCDC members have experienced discrimination similar to that described herein. On information and belief, Defendant’s conduct has deterred other CCDC members from attending future performances until the ADA violations and design defects described herein are resolved. 69. On information and belief, other CCDC members have suffered damages as a result of Defendant’s conduct.
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70. Plaintiff CCDC has members who attend performances at the Opera House and who would like to attend performances at the Opera House.
71. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by public venues and theatres, like the Opera House.
72. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendant’s violations of the laws cited herein.
73. Defendant’s actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
74. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with the City in an attempt to secure non-discriminatory conditions at the Opera House.
75. Defendant’s discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities.
76. Defendant’s discrimination described herein deter some persons with disabilities from attending events at the Opera House.
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77. Defendant’s discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
78. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendant.
79. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendant’s discriminatory conduct alleged in this Third Amended Complaint and will be redressed by the relief requested in it.
80. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendant’s discrimination.
81. The elimination of discrimination, such as that of Defendant, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
82. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
83. Defendant acted intentionally or with reckless or callous indifference to the federally protected rights of others and/or with deliberate indifference to the strong likelihood that its acts would likely result in a violation of federally protected rights
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FIRST CLAIM FOR RELIEF (Violation of the Americans with Disabilities Act) 84. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Third Amended Complaint as if fully set forth herein. 85. Title II of the ADA prohibits public entities from denying, on the basis of disability, the benefits of the services, programs, or activities of the public entity, or from subjecting persons with disabilities to discrimination. 42 U.S.C. § 12132. 86. The City and County of Denver is a public entity covered by the ADA. 42 U.S.C. § 12131(1). 87. Defendant has violated the ADA by denying Plaintiffs and other persons with disabilities the benefits of benefits of the services, programs, or activities of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein. 88. Defendant’s violations of the ADA have harmed Plaintiffs.
SECOND CLAIM FOR RELIEF (Violation of Rehabilitation Act)
89. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Third Amended Complaint as if fully set forth herein.
90. The Rehabilitation Act prohibits recipients of federal financial assistance from denying, on the basis of disability, the benefits provided by the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794.
91. On information and belief, Defendant receives federal financial assistance. -19-

92. Defendant has violated the Rehabilitation Act by excluding Plaintiffs from the participation in, denying them the benefits of, and/or subjecting them to discrimination under the programs and/or activities of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein.
93. Defendant’s violations of the Rehabilitation Act have harmed Plaintiffs. THIRD CLAIM FOR RELIEF
(Colorado Anti-Discrimination Act) 94. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Third Amended Complaint as if fully set forth herein. 95. The Colorado Anti-Discrimination Act prohibits any public facility of any kind from denying an individual or a group on the basis of disability equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. Colo. Rev. Stat. § 24-34-601. 96. Defendant -- in its ownership and/or operation of the Opera House -- is a place of public accommodation as that term is defined in Colo. Rev. Stat. § 24-34-601(1). 97. The Colorado Anti-Discrimination Act is to be construed consistently with the ADA and other federal civil rights statutes. 3 Colo. Code. Reg. 708.60.1(c). 98. Defendant has violated the Colorado Anti-Discrimination Act by denying individuals with disabilities the full enjoyment of any of the accommodations, advantages, facilities, and/or privileges of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein.
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99. Under the Colorado Anti-Discrimination Act, for every offense committed by each Defendant, each shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the persons aggrieved thereby. Colo. Rev. Stat. § 24-34-602.
100. Defendant’s violations of the Colorado Anti-Discrimination Act have harmed Plaintiffs and CCDC’s members who have attempted to patronize the Opera House.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction. 2. That this Court issue an injunction ordering Defendant bring the Opera House into compliance with the ADA, the Rehabilitation Act, and the Colorado Anti-Discrimination Act; 3. That this Court award compensatory damages to Plaintiffs. 4. That this Court award reasonable attorneys’ fees and costs. 5. That this Court award such additional or alternative relief as may be just, proper and equitable.
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JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury.
Dated: October 15, 2007
Respectfully submitted,
/s Kevin W. Williams Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org
Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 TTY: 303.595.9703 Facsimile: 303.595.9705 E-mail: arob@foxrob.com
Address of Plaintiff Colorado Cross-Disability Coalition
655 Broadway, Suite 775 Denver, CO 80203
Address of Laura Hershey
1466 South Lincoln Street Denver, CO 80210
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 Case 1:06-cv-00865-MSK-BNB Document 103 Filed 11/06/07 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, ROBIN STEPHENS, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant. ______________________________________________________________________________
ANSWER OF DEFENDANT CITY AND COUNTY OF DENVER TO PLAINTIFFS’ THIRD AMENDED AND SUPPLEMENTAL COMPLAINT ______________________________________________________________________________
The Defendant City and County of Denver (“City”), by and through its undersigned attorneys, hereby answers Plaintiffs’ Third Amended and Supplemental Complaint (referred to herein as “Complaint”) as follows:
JURISDICTION 1. With respect to Paragraph 1 of the Complaint, the City admits that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1343, and the City denies the allegation that this Court has pendent jurisdiction over claims brought under the laws of the State of Colorado.

Case 1:06-cv-00865-MSK-BNB Document 103 Filed 11/06/07 USDC Colorado Page 2 of 17
2. The City admits the allegations of Paragraph 2 of Plaintiffs’ Complaint. PARTIES
3. The City admits that CCDC is a Colorado non-profit corporation, but is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of Paragraph 3 of Plaintiffs’ Complaint and therefore denies the same.
4. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 4 of Plaintiffs’ Complaint and therefore denies the same.
5. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 5 of Plaintiffs’ Complaint and therefore denies the same.
6. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 6 of Plaintiffs’ Complaint and therefore denies the same.
7. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 7 of Plaintiffs’ Complaint and therefore denies the same.
8. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 8 of Plaintiffs’ Complaint and therefore denies the same.
9. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations of Paragraph 9 of Plaintiffs’ Complaint and therefore denies the same.
10. With respect to Paragraph 10, the City admits it owns the Ellie Caulkins Opera House. The City further admits it has entered into numerous user agreements with different tenants, to use the Ellie Caulkins Opera House for specific periods of time for the presentation of various types of theatrical, musical and other events. The City denies all remaining allegations of Paragraph 10.
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Case 1:06-cv-00865-MSK-BNB Document 103 Filed 11/06/07 USDC Colorado Page 3 of 17
11. The City admits that the Opera House was under construction in 2004-2005 and that it opened in October of 2005. The City denies all remaining allegations of Paragraph 11 of Plaintiffs’ Complaint.
12. With respect to Paragraph 12, the City affirmatively states that the Opera House is housed within the existing footprint of the Auditorium Theatre and that certain aspects of the Auditorium Theatre were incorporated into the Opera House during construction. The City denies the remaining allegations of Paragraph 12.
13. The City denies the allegations of Paragraph 13 of Plaintiffs’ Complaint. 14. With respect to Paragraph 14 of Plaintiffs’ Complaint, the City admits that the only access to the orchestra level of the Opera House for people who use wheelchairs or mobility devices is via wheelchair lifts. The City denies all remaining allegations of Paragraph 14. 15. The allegations of Paragraph 15 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 15. 16. The allegations of Paragraph 16 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 16. 17. The allegations of Paragraph 17 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 17. 18. The allegations of Paragraph 18 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 18.
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19. The allegations of Paragraph 19 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 19.
20. The allegations of Paragraph 20 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 20.
21. The allegations of Paragraph 21 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 21.
22. The allegations of Paragraph 22 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 22.
23. The allegations of Paragraph 23 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 23.
24. The allegations of Paragraph 24 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 24.
25. The allegations of Paragraph 25 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 25.
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26. The allegations of Paragraph 26 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 26.
27. The allegations of Paragraph 27 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 27.
28. With respect to Paragraph 28 of Plaintiffs’ Complaint, the City admits the wheelchair lifts at the Opera House have accordion doors at either end. The City admits the lifts have occasionally stopped as a result of some interference with the doors. The City denies all remaining allegations of Paragraph 28.
29. The City denies the allegations of Paragraph 29 of Plaintiffs’ Complaint. 30. The allegations of Paragraph 30 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 30. 31. The allegations of Paragraph 31 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 31. 32. With respect to Paragraph 32, the City admits that when the Opera House first opened, some of the designated accessible seats were on a slope. The City affirmatively states it has eliminated the slope as it affects accessible seating. The City denies all remaining allegations of Paragraph 32.
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33. The allegations of Paragraph 33 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 33.
34. The allegations of Paragraph 34 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 34.
35. The allegations of Paragraph 35 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 35.
36. The City states that Paragraph 36 of Plaintiffs’ Complaint contains representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 36.
37. The City denies the allegations of Paragraph 37 of Plaintiffs’ Complaint. 38. With respect to Paragraph 38 of Plaintiffs’ Complaint, the City denies Plaintiffs have suffered any discrimination, or that any illegal discrimination or ADA violations have occurred. 39. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 39 of Plaintiffs’ Complaint and therefore denies the same. 40. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 40 of Plaintiffs’ Complaint and therefore denies the same.
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41. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 41 of Plaintiffs’ Complaint and therefore denies the same.
42. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 42 of Plaintiffs’ Complaint and therefore denies the same.
43. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 43 of Plaintiffs’ Complaint and therefore denies the same.
44. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 44 of Plaintiffs’ Complaint and therefore denies the same.
45. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 45 of Plaintiffs’ Complaint and therefore denies the same.
46. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 46 of Plaintiffs’ Complaint and therefore denies the same.
47. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 47 of Plaintiffs’ Complaint and therefore denies the same.
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48. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 48 of Plaintiffs’ Complaint and therefore denies the same.
49. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 49 of Plaintiffs’ Complaint and therefore denies the same.
50. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 50 of Plaintiffs’ Complaint and therefore denies the same.
51. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 51 of Plaintiffs’ Complaint and therefore denies the same.
52. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 52 of Plaintiffs’ Complaint and therefore denies the same.
53. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 53 of Plaintiffs’ Complaint and therefore denies the same.
54. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 54 of Plaintiffs’ Complaint and therefore denies the same.
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55. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 55 of Plaintiffs’ Complaint and therefore denies the same.
56. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 56 of Plaintiffs’ Complaint and therefore denies the same.
57. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 57 of Plaintiffs’ Complaint and therefore denies the same.
58. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 58 of Plaintiffs’ Complaint and therefore denies the same.
59. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 59 of Plaintiffs’ Complaint and therefore denies the same.
60. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 60 of Plaintiffs’ Complaint and therefore denies the same.
61. With respect to Paragraph 61.(a) through (t) of Plaintiffs’ Complaint, the City denies any discriminatory design defects exist at the Opera House. The City further denies any violations of the ADA or other applicable law. The City admits that: there are pillars in between some of two designated accessible seats and the adjacent companion seats (sub-paragraph (b.)); access to the designated accessible orchestra level seats is via wheelchair lifts (sub-paragraph
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(c.)); and the City has received complaints alleging malfunctions of the wheelchair lifts (general response). The City lacks sufficient knowledge or information to form a belief as to the allegations contained in Paragraphs 61.(m.) and (n.), and therefore denies the same. The City denies all other allegations contained in Paragraph 61.(a) through (t) of Plaintiffs’ Complaint, not expressly admitted herein. The City specifically denies any discriminatory design defects or any violation of the ADA or any other applicable law. With respect to Paragraph 61.(s) and (t) of Plaintiffs’ Complaint, the City further notes that these sub-paragraphs contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 6.1.(s) and (t).
62. With respect to Paragraph 62 of Plaintiffs’ Complaint, the City is without sufficient knowledge or information of the details of Ms. Hershey’s attendance, or her desire to attend future performances. The City denies any ADA violations or any illegal discrimination. The City denies all allegations of Paragraph 62 not expressly admitted herein.
63. The City denies the allegations of Paragraph 63. 64. With respect to Paragraph 64 of Plaintiffs’ Complaint, the City is without sufficient knowledge or information of the details of their attendance, or their desire to attend future performances. The City denies any ADA violations or any illegal discrimination. The City denies all allegations of Paragraph 64 not expressly admitted herein. 65. The City denies the allegations of Paragraph 65. 66. With respect to Paragraph 66 of Plaintiffs’ Complaint, the City is without sufficient knowledge or information of the details of Mr. Wilson’s attendance, or her desire to attend future performances. The City denies any ADA violations or any illegal discrimination. The City denies all allegations of Paragraph 66 not expressly admitted herein.
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67. The City denies the allegations of Paragraph 67. 68. With respect to Paragraph 68 of Plaintiffs’ Complaint, the City is without sufficient knowledge or information of their attendance, or their desire to attend future performances. The City denies any ADA violations or any illegal discrimination. The City denies all allegations of Paragraph 68 not expressly admitted herein. 69. The City denies the allegations of Paragraph 69. 70. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 70 of Plaintiffs’ Complaint and therefore denies the same. 71. The City is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 71 of Plaintiffs’ Complaint and therefore denies the same. 72. With respect to Paragraph 72 of Plaintiffs’ Complaint, the City lacks knowledge sufficient to respond to allegations about the CCDC’s mission and therefore denies the same. The City specifically denies any illegal discrimination. The City denies all remaining allegations of Paragraph 72. 73. The City denies the allegations of Paragraph 73. 74. With respect to Paragraph 74 of Plaintiffs’ Complaint, the City lacks knowledge sufficient to respond to allegations about the CCDC’s resources and therefore denies the same. The City specifically denies any illegal discrimination. The City denies all remaining allegations of Paragraph 74. 75. The City denies the allegations of Paragraph 75. 76. The City denies the allegations of Paragraph 76.
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77. The City denies the allegations of Paragraph 77. 78. The City denies the allegations of Paragraph 78. 79. The City denies the allegations of Paragraph 79. 80. The City denies the allegations of Paragraph 80. 81. With respect to Paragraph 81 of Plaintiffs’ Complaint, the City lacks knowledge sufficient to respond to allegations about the CCDC’s mission and therefore denies the same. The City specifically denies any illegal discrimination. The City denies all remaining allegations of Paragraph 81. 82. The allegations of Paragraph 82 of Plaintiffs’ Complaint contain representations and/or conclusions of law, to which no response is required. To the extent any response is required, the City denies the allegations of Paragraph 82. 83. The City denies the allegations of Paragraph 83.
FIRST CLAIM FOR RELIEF (Violation of the Americans with Disabilities Act) 84. The City hereby incorporates by reference the answers and averments contained in Paragraphs 1 through 83 set forth above. 85. The references to Title II of the ADA set forth in Paragraph 85 of Plaintiffs’ Complaint speak for themselves and do not require a response from the City. To the extent a response is required, the allegations of Paragraph 85 are denied. 86. The City admits the allegations of Paragraph 86. 87. The City denies the allegations of Paragraph 87. 88. The City denies the allegations of Paragraph 88.
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SECOND CLAIM FOR RELIEF (Violation of Rehabilitation Act) 89. The City hereby incorporates by reference the answers and averments contained in Paragraphs 1 through 89 set forth above. 90. The references to the Rehabilitation Act set forth in Paragraph 90 of Plaintiffs’ Complaint speak for themselves and do not require a response from the City. To the extent a response is required, the allegations of Paragraph 90 are denied. 91. The City admits the allegations of Paragraph 91. 92. The City denies the allegations of Paragraph 92. 93. The City denies the allegations of Paragraph 93. THIRD CLAIM FOR RELIEF (Colorado Anti-Discrimination Act) 94. The City hereby incorporates by reference the answers and averments contained in Paragraphs 1 through 93 set forth above. 95. With respect to Paragraph 95 of Plaintiffs’ Complaint, the City states that the Colorado Anti-Discrimination Act speaks for itself and that no response by the City is required. To the extent a response is required, the allegations of Paragraph 95 are denied. 96. With respect to Paragraph 96 of Plaintiffs’ Complaint, the City states that the Colorado Anti-Discrimination Act speaks for itself and that no response by the City is required. Moreover, the allegations of Paragraph 96 constitute requests for legal conclusions to which the City is not required to respond. To the extent a response is required, the allegations of Paragraph 96 are denied. 97. With respect to Paragraph 97 of Plaintiffs’ Complaint, the City states that the Colorado Anti-Discrimination Act speaks for itself and that no response by the City is required.
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Moreover, the allegations of Paragraph 97 constitute requests for legal conclusions to which the City is not required to respond. To the extent a response is required, the allegations of Paragraph 97 are denied.
98. The City denies the allegations of Paragraph 98. 99. With respect to Paragraph 99 of Plaintiffs’ Complaint, the City states that the Colorado Anti-Discrimination Act speaks for itself and that no response by the City is required. The City denies that it committed any offense under such Act. 100. The City denies the allegations of Paragraph 100.
AFFIRMATIVE DEFENSES 1. Plaintiffs’ Complaint fails to state a claim against the City upon which relief may be granted. 2. Insofar as Plaintiffs claim that the Opera House as designed and/or constructed is in violation of Title II of he ADA, the Opera House was created as an alteration to the original Quigg Newton Auditorium structure and was designed and constructed to fit within the existing footprint of the Quigg Newton Auditorium structure. The Opera House was therefore designed and constructed to be made accessible to persons with disabilities to the maximum extent feasible consistent with existing structural conditions and existing physical and site constraints within the Quigg Newton Auditorium structure. 3. Insofar as Plaintiffs claim that the Opera House as designed and/or constructed is in violation of Title II of the ADA, the Quigg Newton Auditorium is a qualified historic building or facility under Title II of the ADA since it is listed on the National Register of Historic Places and is designated as a Landmark structure designated for preservation under Chapter 30, Denver Revised Municipal Code. This status has constrained the City from building the Opera House
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outside of the existing footprint of the Quigg Newton Auditorium structure. The Opera House was therefore designed and constructed to be made accessible to persons with disabilities to the maximum extent feasible consistent with the historic significance of the Quigg Newton Auditorium structure.
4. Plaintiffs have not demonstrated intentional discrimination or deliberate indifference against them by the City and are therefore not entitled to compensatory damages from the City under Title II of the ADA.
5. Plaintiffs have failed to minimize or mitigate their damages, if any. 6. Plaintiffs’ claimed damages, if any, were caused by their own acts or omissions, or were caused by the acts or omissions of third parties over whom the City had no control or right of control. 7. Plaintiffs’ claims against the City may be barred in whole or in part by the doctrine of sovereign or governmental immunity and/or absolute, limited or qualified immunity. 8. Plaintiffs’ claims are not ripe. 9. One or more the Plaintiffs are not proper parties or real parties in interest as to all claims for relief asserted in Plaintiffs’ Complaint. 10. One of more of the Plaintiffs lack standing. 11. Plaintiffs’ claims for injunctive relief are moot. 12. Plaintiffs’ claims are barred by the doctrines of undue burden, necessity and fundamental alteration. 13. Plaintiffs’ claims are barred by the doctrines of waiver, estoppel, ratification and laches. 14. The City complied with all applicable laws, statutes and regulations.
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15. Plaintiffs’ claims are barred by applicable statutory limitations, exceptions and exemptions.
16. Plaintiffs’ claims are barred in whole or in part due to their failure to exhaust remedies.
WHEREFORE, the City, having fully answered Plaintiffs’ Complaint, requests this Honorable Court to dismiss Plaintiffs’ Complaint against the City with prejudice, that Plaintiffs take nothing by their Complaint and that the City be granted its costs and attorney fees in this matter, together with such other and further relief as the Court may deem appropriate.
Respectfully submitted this 6th day of November, 2007.
s/ Elizabeth L. “Booka” Smith__________________ Elizabeth A. Starrs Elizabeth L. Smith STARRS MIHM & CASCHETTE, LLP 707 Seventeenth Street, Suite 2600 Denver, Colorado 80202 Phone: 303-592-5900 Fax: 303-592-5910 E-mail: estarrs@starrslaw.com E-mail: books.smith@starrslaw.com Special Counsel for Defendant City and County of Denver
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CERTIFICATE OF SERVICE The undersigned does hereby certify that on November 6, 2007, a true and correct copy of the foregoing ANSWER OF DEFENDANT CITY AND COUNTY OF DENVER TO PLAINTIFFS’ THIRD AMENDED AND SUPPLEMENTAL COMPLAINT was served via U.S. mail to the following: Norman R. Bangeman, Esq. Scott C. Johnson, Esq. Melissa Ball, Esq. City & County of Denver City Attorney’s Office 201 West Colfax Ave., Dept. 1207 Denver, CO 80202-5332 Kevin W. Williams, Esq. Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Timothy P. Fox, Esq. Amy F. Robertson, Esq. Ari Krichiver, Esq. Fox & Robertson, P.C. 910 Sixteenth Street, Suite 610 Denver, CO 80202
/s/ Adah Wentworth ______________________________
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 Case 1:06-cv-00865-MSK-BNB Document 106 Filed 03/14/08 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff,
v.
SEMPLE BROWN DESIGN, P.C., Third Party Defendant.
TIDRD PARTY COMPLAINT AND JURY DEMAND
The City and County of Denver, by and through its attorney, Elizabeth A. Starrs ofStarrs Mihm & Caschette LLP, states its Third Party Complaint against Third Party Defendant Semple Brown Design, P.C. as follows:
EXHIBIT
I A
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VENUE AND JURISDICTION

1. Venue and jurisdiction are appropriate pursuant to 28 U.S.C. § 1391 (b) and 28 U.S.C. § 1367.

PARTIES

2. Colorado.

The City and County of Denver ("the City") is a home rule city in the State of

3. Semple Brown Design, P.C. ("Semple Brown") is an architectural design firm with its principal place of business in Denver, Colorado.

GENERAL ALLEGATIONS

4. In 2002, the City submitted a request for proposals for professional services for the renovation of its Newton Denver Municipal Auditorium. The Auditorium, located in the Denver Performing Arts Complex, is owned by the City and leased to various entities as a venue for performing arts. The renovation was a complete renovation of the inside of the Auditorium, including the construction of the Ellie Caulkins Opera House ("the Ellie") and the Kevin Taylor Restaurant built within the existing outside structure of the Auditorium.

5. Semple Brown represented to the City that it had the requisite expertise and specialization in ADA compliance for the Project. In fact, Semple Brown knew it did not have the requisite expertise and specialization in ADA compliance or, alternatively, was aware that it did not know whether it had the requisite expertise and specialization in ADA compliance.

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6. On August 12, 2002, Semple Brown and the City entered into a Design Services Agreement ("the Agreement") for the Newton Denver Municipal Auditorium ("Auditorium") Renovation Project ("the Project"). The Agreement, set forth as Exhibit 1, called for the complete renovation of the inside of the Auditorium.
7. Pursuant to the Agreement, in exchange for monetary compensation, Semple Brown agreed to provide comprehensive professional design services, including architectural, engineering, and related technical services including space planning, interior design, theatre design, and other related technical services required to design, construct and deliver to the City a complete, fully functional public improvement, free of material design, architectural, and engineering defects. E~. 1, Art. II (2.1).
8. The Agreement further required Semple Brown to strictly confirm to and be bound by any and all written standards, criteria, budgetary considerations and memoranda of policy furnished by the City in performing its services, and required Semple Brown to design the Project in strict compliance with all applicable laws, statutes, codes, ordinances, rules and regulations, and industry standards. Exh. 1, Art. II (2.2.7), Art. IX (9.1).
9. The Agreement further required Semple Brown to provide all professional services required by the City in defending all claims against the City which relate to alleged errors and omission of Semple Brown or those performing under it, without additional compensation. Exh. 1, Art. II (2.2.8).
10. The Agreement further required Semple Brown to defend, release, indemnifY, and save and hold harmless the City from and against any and all claims, demands, suits, actions, liabilities, costs, expenses, and causes of action in any way resulting from, connected with, or
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arising out of the tortious or negligent operations or performance of Semple Brown. Exh. 1, Art. XIV (14.2).
11. Pursuant to the Agreement, Semple Brown agreed to perform all work in accordance with the standards of care, skill and diligence provided by competent professionals who perform work or services of a similar nature to the work or services described in the Agreement. Exh. 1, Art. 23 (23.3).
12. Semple Brown and its subcontractors proceeded to provide the design services under the Agreement. Semple Brown was responsible for the work performed by its subcontractors and Semple Brown provided and/or approved all drawings and specifications, construction documenfs, and work performed oli the Project.
13. However, as later discovered by the City, Semple Brown breached its obligations under the Agreement and has refused to defend, indemnify, and hold harmless the City as required under the Agreement.
14. On September 14, 2005, prior to the October 2005 public opening of the Ellie Caulkins Opera House, members ofthe Colorado Cross-Disability Coalition (CCDC) toured the Ellie. Following their tour, the CCDC, by letter dated September 16,2005, notified the City of alleged failures ofthe renovation to comply with Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). The items complained of included, but were not limited to:
a. Failure to design access to the orchestra level via a ramp or elevator, instead requiring wheelchair patrons to use a lift unsuitable for individuals in wheelchairs;
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b. Failure to design wheelchair seating in orchestra level on a level base; and c. Failure to design wheelchair seating with sufficient room for two or more
individuals using wheelchairs to sit together. 15. At the time of the CCDC's tour, construction was not complete and subsequent work addressed and resolved several issues raised by the CCDC. 16. On or about October 13, 2005, the City notified Semple Brown in writing of the CCDC's initial concerns. 17. On November 18, 2005, Semple Brown responded to the City regarding the accessibility issues raised by the CCDC. In its response, Semple Brown took the position that the concerns ofCCDC either were to be addressed during completion of the project or did not constitute violations of the law. 18. However, the CCDC continued to be concerned with several issues and, ultimately, on May 5, 2006, filed a complaint against the City in the United States District Court, District of Colorado, Case No. 1:06-cv-00865-LTB, alleging violations of the Americans with Disabilities Act, the Rehabilitation Act, the Colorado Anti-Discrimination Act, and the Colorado Consumer Protection Act, arising from, inter alia, the design of the Ellie. The CCDC also filed a complaint with the United States Department of Justice (DOJ) alleging accessibility problems at the Ellie and the Kevin Taylor Restaurant. 19. The alleged defects raised in the CCDe's complaints included, but were not limited to, inadequacies with:
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a. Designated accessible seating locations;

b. Orchestra level accessible seating location slope/rake;

c. Emergency egress use for accessible seating location patrons from the orchestra level;

d. Adequacy of maneuvering clearances for disabled patrons;

e. Orchestra level cross access, i.e., access from one side of the Ellie to the other;

f. Accessible box office/will call window for disabled patrons;

g. Figaro access for disabled patrons;

h. Removal of mobility devices from the aisles/storage of mobility devices next to accessible seating;

1.

Accessible restrooms;

J. Accessible bar and patron tables in the Kevin Taylor Restaurant;

k. Signage; and

I. Accessible elevators and/or lifts.

20. Pursuant to § 13-20-803.5, C.R.S., the City sent a Notice of Claim to Semple Brown on July 12, 2006. In the Notice of Claim, the City demanded that Semple Brown both investigate the alleged defects at the Ellie and tender a written offer to remedy all identified defects and/or an offer to settle.

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21. The City has demanded that Semple Brown provide a defense for and indemnify the City against the claims made by CCRC.
22. As of today, Semple Brown has not remedied the defects alleged by the CCDC nor has Semple Brown tendered a defense or indemnification to the City.
23. The City remains in litigation with CCDC regarding the accessibility of the Ellie and the Kevin Taylor Restaurant. The City has incurred substantial damages caused by the acts or omissions of Semple Brown, including, but not limited to, lost revenue for loss of seating, litigation costs, attorneys' fees, and construction costs. These damages are directly related to the City's efforts to defend and resolve the dispute with CCDC.
FIRST CLAIM FOR RELIEF: BREACH OF CONTRACT 24. The City incorporates the preceding paragraphs as if set forth in full. 25. Semple Brown and the City entered into an enforceable valid contract, the Agreement. The City has performed its obligations under the Agreement. 26. Semple Brown breached its obligations under the Agreement, including, but not limited to, the following particulars:
a. Semple Brown failed to perform its contractual obligations in a workmaulike matter or with the degree of professional skill and care required of reasonable professionals performing work or services of a similar nature to the work or services described in the Agreement;
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b. Semple Brown's design of the Ellie and the Kevin Taylor Restamant failed to meet applicable state, federal and local requirements and standards;
c. Semple Brown's design failed to meet the Project requirements, including compliance with all laws, rules, and regulations;
d. Semple Brown failed to defend and indemnifY the City. 27. Semple Brown's breaches were and are material breaches. 28. Semple Brown's breaches have caused the City damages in an amount to be proven at trial. SECOND CLAIM FOR RELIEF: BREACH OF THE COVENANT OF GOOD FAITH
AND FAIR DEALING 29. The City incorporates the preceding paragraphs as if set forth in full. 30. The Agreement contains an implied covenant of good faith and fair dealing. 31. Semple Brown's refusal to provide a defense andlor indemnification to the City is a breach of the covenant of good faith and fair dealing. 32. The City has been damaged by Semple Brown's breach of the covenant of good faith and fair dealing, in an amount to be proven at trial.
THIRD CLAIM FOR RELIEF: PROFESSIONAL NEGLIGENCE 33. The City incorporates the preceding paragraphs as if set forth in full.
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34. Semple Brown is a professional organization and has a duty to act in a manner consistent with the standards of conduct and care required of professionals providing architectural, engineering, interior design, utility coordination, and other design services;
35. Semple Brown negligently designed the Ellie and the Kevin Taylor Restaurant. 36. Semple Brown's negligence was not consistent with the standards of conduct and care required. 37. Semple Brown's negligence has caused the City damages, in an amount to be proven at trial.
FOURTH CLAIM FOR RELIEF: NEGLIGENT MISREPRESENTATION 38. The City incorporates the preceding paragraphs as if set forth in full. 39. Semple Brown gave false infonnation to the City. 40. Semple Brown gave such infonnation to the City in the course of the business transaction in which Semple Brown had a financial interest. 41. Semple Brown gave the infonnation to the City for the use of the City in a business transaction. 42. Semple Brown was negligent in communicating the infonnation. 43. Semple Brown gave the infonnation with the intent or knowing that the City would act in reliance on the infonnation. 44. The City relied on the infonnation supplied by Semple Brown.
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45. This reliance caused damage to the City iu an amount to be determiued at trial. FIFTH CLAIM FOR RELIEF: FALSE REPRESENTATION
46. The City incorporates the preceding paragraphs as if set forth in full. 47. Semple Brown made false representations ofpast or present facts to the City. 48. These facts, including that Semple Brown had expertise and specialization in ADA compliance, were material. 49. Semple Brown made false representations to the City knowing them to be false or, alternatively, with knowledge that they did not know whether these representations were true or false. 50. Semple Brown made false representations to the City with the intent that the City would rely upon these representations. 51. The City did, in fact, rely upon Semple Brown's representations. 52. The City's reliance upon Semple Brown's representations was justified under the circumstances. 53. The City's reliance upon Semple Brown's false representations caused injuries, damages, and losses to the City iu an amount to be proven at trial.
SIXTH CLAIM FOR RELIEF: DECLARATORY JUDGMENT 54. The City incorporates the precediug paragraphs as if set forth in full.
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55. The City seeks a declaration that under the Agreement, SBD had and has a duty to defend, release, indemnifY, and save and hold harmless the City from and against any and all claims (including the claims brought by the CCDC), liabilities, suits, demands, actions, costs, and expenses (including but not limited to reasonable attorneys' fees, expert witness fees and all associated defense fees) which arise out of alleged design defects in the Ellie and/or the Kevin Taylor Restaurant.
PRAYER FOR RELIEF
The City requests declaratory relief and compensatory damages, including all available pre- and post-judgment interest, attorneys' fees, and costs, and any other relief deemed just and appropriate.
THE CITY DEMANDS A JURY ON ALL ISSUES SO TRIABLE

DATED this 13th day of March, 2008.

Respectfully submitted,

/s/ Elizabeth A. Starrs
Elizabeth A. Starrs, #10914 STARRS MIHM & CASCHETTE LLP 707 17'h Street, Suite 2600 Denver, CO 80202 303-592-5900 estarrs@starrslaw.com
Attorneyfor City and County ofDenver

11

 
 Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.: 06-CV-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION,a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER, COLORADO
Defendant and Third-Party Plaintiff
v.
SEMPLE BROWN DESIGN, P.C.
Third-Party Defendant.

SEMPLE BROWN DESIGN, P.C.'S ANSWER AND JURY DEMAND TO THE THIRD-PARTY COMPLAINT AND JURY DEMAND

Third-Party Defendant, Semple Brown Design, P.C. ("Semple Brown"), by and

through its attorneys Jackson Kelly PLLC, submits its Answer and Jury Demand to the

Third-Party Complaint as follows:

ANSWER TO VENUE AND JURISDICTION

I.

Semple Brown does not object to venue and jurisdiction.

{D05027JO.l}

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 2 of 8

ANSWER TO PARTIES

2.

Semple Brown is without knowledge sufficient to form a belief as to the

truth or accuracy of the allegations contained in Paragraph 1 and therefore denies them.

3.

Admitted.

ANSWER TO GENERAL ALLEGATIONS

4.

Admitted.

5.

Denied.

6-11. Semple Brown admits entering into the Design Serviees Agreement

("Agreement") with the City and County of Denver (the "City") on August 12, 2002.

The Agreement speaks for itself. To the extent the allegations eontained in Paragraphs 6

through 11 are inconsistent with the Agreement, they are denied by Semple Brown.

12. Semple Brown admits performing services under the Agreement.

Remaining allegations contained in Paragraph 12 eall for legal conclusions to which no

response IS neeessary. To the extent an answer is required by Semple Brown, the

allegations are denied.

13. Denied.

14-15. Semple Brown is without knowledge sufficient to form a belief as to the

truth or accuracy of the allegations contained in Paragraphs 14 and 15 and therefore

denies them.

16. Admitted.

17. Semple Brown admits to responding to the City on November 18,2005.

The response speaks for itself. To the extent the remaining allegations contained in

ID0502710 l}

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 3 of 8
Paragraph 17 are inconsistent with the context and nature of the response, they are denied by Semple Brown.
18-19. Semple Brown is without knowledge sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraphs 18 and 19 and therefore denies them.
20. Semple Brown admits it received a Notice of Claim on or about July 12, 2006. The Notice of Claim speaks for itself. To the extent the allegations contained in Paragraph 20 are inconsistent with the Notice of Claim, they are denied by Semple Brown.
21. Admitted. 22. Admitted. 23. Semple Brown is without knowledge sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 23 and therefore denies them. ANSWER TO FIRST CLAIM FOR RELIEF: BREACH OF CONTRACT 24. As answer to Paragraph 24, Semple Brown incorporates all responses as set forth above. 25. Semple Brown admits entering into the Agreement with the City. The Agreement speaks for itself. The remaining allegations contained in Paragraph 25 call for legal conclusions to which no response is neeessary. To the extent an answer is required by Semple Brown, the remaining allegations are denied. 26-28. Denied.
{D05027JO.! }

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 4 of 8
ANSWER TO SECOND CLAIM FOR RELIEF: BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
29. As answer to Paragraph 29, Semple Brown incorporates all responses as set forth above.
30. The allegations contained in Paragraph 30 call for legal conclusions to which no response is necessary. To the extent an answer is required by Semple Brown, the allegations are denied.
31-32. Denied. ANSWER TO THIRD CLAIM FOR RELIEF: PROFESSIONAL NEGLIGENCE
33. As answer to Paragraph 33, Semple Brown incorporates all responses as set forth above.
34. Semple Brown admits its services complied with the applicable standard of care. The remaining allegations contained in Paragraph 33 call for legal conclusions to which no response is necessary. To the extent an answer is required by Semple Brown, the allegations are denied.
35-37. Denied. ANSWER TO FOURTH CLAIM FOR RELIEF: NEGLIGENT MISREPRESENTATION
38. As answer to Paragraph 38, Semple Brown incorporates all responses as set forth above.
39-45. Denied ANSWER TO FIFTH CLAIM FOR RELIEF: FALSE REPRESENTATION
46. As answer to Paragraph 46, Semple Brown incorporates all responses as
{D0502730. I}

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 5 of 8
set forth above. 47-53. Denied
ANSWER TO SIXTH CLAIM FOR RELIEF: DECLARATORY JUDGMENT 54. As answer to Paragraph 54, Semple Brown incorporates all responses as
set forth above. 55. The allegations contained in Paragraph 55 call for legal conclusions to
which no response is necessary. To the extent an answer is required by Semple Brown, the allegations are denied.
ADDITIONAL ANSWER Any and all allegations not specifieally admitted herein are denied.
AFFIRMATIVE DEFENSES 1. The Third-Party Complaint fails to state claims upon which relief may be granted. 2. The damages alleged in the Third-Party Complaint were caused by other persons or parties for which Semple Brown is neither liable nor responsible. C.R.S. § 1321-111.5. 3. The damages alleged in the Third-Party Complaint were eaused by the errors and omissions, negligent or otherwise, of the Third-Party Plaintiff and its agents and employees, which bars or reduees their claims pursuant to C.R.S. §13-21-111. 4. Third-Party Plaintiff has failed to mitigate its damages, if any. 5. Third-Party Plaintiff's claims are barred by the doctrines of waIVer, estoppel and/or acquiescence.
{D0502730,! }

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 6 of 8
6. Third-Party Plaintiffs claims are barred by the statute of limitations. 7. Third-Party Plaintiffs claims are barred by their assumption of known risks. 8. Third-Party Plaintiff's claims are barred by the failure of Third-Party Plaintiff or its agents and representatives to follow plans and specifications and engineering recommendations. 9. Scmple Brown's liability to Third-Party Plaintiff, if any, is limited by the terms of Semple Brown's contract. 10. Third-Party Plaintiffs claims may be barred or limited by the doctrine of unjust enrichment or betterment. II. Third-Party Plaintiff may have failed to join an indispensable party. 12. Third-Party Plaintiffs claims may be barred or limited by the economic loss rule. \3. Third-Party Plaintiffs claims are barred or reduced by operation of C.R.S. §13-21-111.5(3) as a result of the negligence or fault of certain non-parties. 14. Third-Party Plaintiffs claims are barred by the absence of justifiable reliance. WHEREFORE, Third-Party Defendant Semple Brown, P.C. prays that the Complaint of Third-Party Plaintiff The City and County of Denver, Colorado be dismissed with prejudice, for costs of defense herein, including attorneys' fees, and for such other relief as the Court may deem proper.
{D05027JO.l }

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 7 of 8
DEFENDANTS REQUESTS TRIAL BY JURY Dated this 27th day of May, 2008.
JACKSON KELLY PLLC
s/ Timothy M. Schulte Timothy M. Schulte, Reg. No. 20981 Andrew S. Ford, Reg. No. 22607 Meredith A. Kapushion, Reg. No. 36772 1099 18th Street, Suite 2150 Denver, Colorado 80202 303/390-0003; FAX 303/390-0177 tmschulte@jacksonkelly.com asford((iljaeksonkelly.com makapushion(Gljaeksonkelly.com Attorneys/or Semple Brown Design, P.e.
{00502730.1 }

Case 1:06-cv-00865-MSK-BNB Document 116 Filed 05/27/08 USDC Colorado Page 8 of 8
CERTIFICATE OF SERVICE I hereby certify that on this 27th day of May, 2008, a true and correct copy o[the foregoing SEMPLE BROWN DESIGN, P.c.'S ANSWER AND JURY DEMAND TO THE THIRD-PARTY COMPLAINT AND JURY DEMAND was e-filed via CMECF addressed to the following: Elizabeth A. Starrs, Esq. Starrs Mihm & Caschctte, LLP 707 Seventeenth Street, Suite 2600 Denver, Colorado 80202 Attorneys for Plaintiff
s/ Virginia L. Schermerhorn
(DOS02730.1}

 
 Case 1:06-cv-00865-MSK-BNB Document 131 Filed 07/11/08 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend,
CARRIE ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend,
CARRIE ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend,
CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant. ________________________________________________________________________
THIRD PARTY PLAINTIFF THE CITY AND COUNTY OF DENVER’S MOTION FOR PARTIAL SUMMARY JUDGMENT
________________________________________________________________________
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Case 1:06-cv-00865-MSK-BNB Document 131 Filed 07/11/08 USDC Colorado Page 2 of 14
The City and County of Denver, by and through its attorneys, Elizabeth A. Starrs and Elizabeth J. Hyatt, of Starrs Mihm & Pulkrabek LLP, requests partial summary judgment on its Third Party Complaint as follows:
CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1 The undersigned certifies that she has not conferred with opposing counsel regarding the relief requested because such conferral is not required on motions under Fed. R. Civ. P. 56. D.C.Colo.LCivR 7.1(A).
I. INTRODUCTION Semple Brown Design, P.C. (“Semple Brown”), entered into an Agreement to provide design services for the City and County of Denver (“the City”) in the renovation of the Newton Denver Municipal Auditorium. As part of the Agreement, Semple Brown agreed to defend the City against claims arising from design defects resulting from the design services it provided. Nevertheless, Semple Brown has refused to defend and indemnify the City against Plaintiffs’ claims in the present action which state claims based on design defects caused by Semple Brown in the performance of its duties under the Agreement. The City and County of Denver (“the City”) requests partial summary judgment on its Sixth Claim for Relief (Declaratory Judgment) as set forth in its Third Party Complaint against Semple Brown Design, P.C. Specifically, the City seeks a declaration that under the August 12, 2002 Design Services Agreement for the Newton Denver Municipal Auditorium (“Auditorium”) Renovation Project between the City and Semple Brown Design, P.C. (“SBD”), SBD had and has a duty to defend the City from and against the claims brought by the Plaintiffs in this lawsuit.
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II. UNDISPUTED MATERIAL FACTS
The following facts are not in dispute:
1. Semple Brown Design, P.C. (“Semple Brown”) is an architectural design firm with its principal place of business in Denver, Colorado. See Third Party Complaint (Doc. No. 106) ¶ 3; Third Party Answer (Doc. No. 116) ¶ 3.
2. In 2002, the City submitted a request for proposals for professional services for the renovation of its Newton Denver Municipal Auditorium. See Third Party Complaint (Doc. No. 106) ¶ 4; Third Party Answer (Doc. No. 116) ¶ 4. The Auditorium, located in the Denver Performing Arts Complex, is owned by the City and leased to various entities as a venue for performing arts. Id. The renovation was a complete renovation of the inside of the Auditorium, including the construction of the Ellie Caulkins Opera House (“the Ellie”) and the Kevin Taylor Restaurant built within the existing outside structure of the Auditorium. Id.
3. On August 12, 2002, Semple Brown and the City entered into a Design Services Agreement (“the Agreement”) for the Newton Denver Municipal Auditorium (“Auditorium”) Renovation Project (“the Project”). See Third Party Complaint (Doc. No. 106) ¶ 6; Third Party Answer (Doc. No. 116) ¶ 6-11. The Agreement, set forth as Exhibit 1 to the Third Party Complaint and attached hereto as Exhibit 1 for quick reference, called for the complete renovation of the inside of the Auditorium. Exh. 1, Art. I (1.4).1 The City’s request for proposals and Semple Brown’s May 27, 2002 Proposal to the City are Exhibits A and B to the Agreement and are incorporated into the Agreement. Exh. 1, p.1.
1 Exhibit 1 is a certified copy of the complete Agreement. The original certification is kept at the offices of Starrs Mihm & Pulkrabek LLP.
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Case 1:06-cv-00865-MSK-BNB Document 131 Filed 07/11/08 USDC Colorado Page 4 of 14
4. Pursuant to the Agreement, in exchange for monetary compensation, Semple Brown agreed to provide comprehensive professional design services, including architectural, engineering, and related technical services including space planning, interior design, theatre design, and other related technical services required to design, construct and deliver to the City a complete, fully functional public improvement, free of material design, architectural, and engineering defects. Exh. 1, Art. II (2.1).
5. The Agreement further required Semple Brown to “design the Project in strict compliance with all applicable laws, statutes, codes, ordinances, rules and regulations, and industry standards.” Exh. 1, Art. II (2.2.7), Art. IX (9.1).
6. Semple Brown agreed that its design would “comply to all ADA requirements with equal access to all front and back-of-house programmed areas.” Exh. B of Exh. 1 (P. 29 of Appendix to Semple Brown Proposal). Semple Brown also agreed to prepare “drawings and other documents to fix and describe the size and character of the entire Project as to architectural, structural, civil, . . . interior design, ADA compliance and such other elements as may be appropriate. Exh. 1, Art. IV (4.1) (emphasis added).
7. The Agreement further required Semple Brown to provide all professional services required by the City in defending all claims against the City which relate to alleged errors and omission of Semple Brown or those performing under it, without additional compensation. Exh. 1, Art. II (2.2.8).
8. The Agreement further requires Semple Brown to defend, release, indemnify, and save and hold harmless the City from and against any and all claims, demands, suits, actions, liabilities, costs, expenses, and causes of action in any way resulting from, connected with, or
4

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arising out of the tortious or negligent operations or performance of Semple Brown. Exh. 1, Art. XIV (14.2). The relevant language of the Agreement reads:
14.2 Indemnification: The Design Consultant [Semple Brown] shall defend, release, indemnify and save and hold harmless the City, its officers, agents and employees from and against: (1) any and all damages, . . . and (2) any and all claims, demands, suits, actions, liabilities, costs, expenses (including but not limited to reasonable attorney fees, expert witness fees and all associated defense fees), causes of action, or other legal, equitable or administrative proceedings of any kind or nature whatsoever, of or by anyone whomsoever, regardless of the legal theory(ies) upon which premised, including but not limited to contract, tort, express and/or implied warranty, strict liability, and workers’ compensation, in any way resulting from, connected with, or arising out of, directly or indirectly, the tortious or negligent actions or omissions of the Design Consultant or those performing under it in connection with its operations or performance herewith . . . Exh. 1, Art. XIV (14.2).
9. Pursuant to the Agreement, Semple Brown agreed to perform all work in accordance with the standards of care, skill and diligence provided by competent professionals who perform work or services of a similar nature to the work or services described in the Agreement. Exh. 1, Art. XXIII (23.3).
10. The Agreement is to be construed in accordance with Colorado law and is a complete integration of the agreement between the City and County of Denver and Semple Brown Exh. 1, Art. XXIII (23.7 and 23.19).2
11. Semple Brown proceeded to provide services under the Agreement, including all architectural, engineering, interior design, utility coordination, and other design services required for final completion of the renovation of the Ellie Caulkins Opera House and the Kevin Taylor
2 The Agreement was properly amended on May 21, 2004 to reflect changes in the schedule and amount of compensation; however, those amendments did not affect any of the provisions at issue herein.
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Restaurant. Third Party Complaint (Doc. No. 106) ¶ 12; Third Party Answer (Doc. No. 116) ¶ 12; Exh. 1, p.1.

12. On September 14, 2005, prior to the October 2005 public opening of the Ellie Caulkins Opera House, members of the Colorado Cross-Disability Coalition (CCDC) toured the Ellie. Following their tour, the CCDC, by letter dated September 16, 2005, notified the City of alleged failures of the renovation to comply with Americans with Disabilities Act Accessibility Guidelines (“ADAAG”). Exh. 2, ¶ 2 (Exh. A of Affidavit of Jack Finlaw). The items complained of included, but were not limited to, the following design defects:

a.
b. c. Id.

Failure to design access to the orchestra level via a ramp or elevator, instead requiring wheelchair patrons to use a lift unsuitable for individuals in wheelchairs;
Failure to design wheelchair seating in orchestra level on a level base; and
Failure to design wheelchair seating with sufficient room for two or more individuals using wheelchairs to sit together.

13. On or about October 13, 2005, the City notified Semple Brown in writing of the CCDC’s initial concerns. Third Party Complaint (Doc. No. 106) ¶ 16; Third Party Answer (Doc. No. 116) ¶ 16.

14. On November 18, 2005, Semple Brown responded to the City regarding the accessibility issues raised by the CCDC. Third Party Complaint (Doc. No. 106) ¶ 17; Third Party Answer (Doc. No. 116) ¶ 17; Exh. 2, ¶ 3 (Exhibit B of Affidavit of Jack Finlaw). In its response, Semple Brown took the position that the concerns of CCDC either were to be addressed during completion of the project or did not constitute violations of the law. Id.

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Case 1:06-cv-00865-MSK-BNB Document 131 Filed 07/11/08 USDC Colorado Page 7 of 14
15. However, the CCDC continued to be concerned with several issues and, ultimately, on May 5, 2006, the CCDC and several individuals filed this action against the City in the United States District Court, District of Colorado, Case No. 1:06-cv-00865-LTB, alleging violations of the Americans with Disabilities Act, the Rehabilitation Act, the Colorado AntiDiscrimination Act, and the Colorado Consumer Protection Act, arising from, inter alia, the design of the Ellie. (Doc. No. 1). The CCDC also filed a complaint with the United States Department of Justice (DOJ) alleging accessibility problems at the Ellie and the Kevin Taylor Restaurant. Exh. 2, ¶ 4 (Exh. C of Affidavit of Jack Finlaw).
16. The design defects raised in the CCDC’s complaints included, but were not limited to, inadequacies with:
a. Designated accessible seating locations; b. Orchestra level accessible seating location slope/rake; c. Emergency egress use for accessible seating location patrons from the orchestra
level; d. Adequacy of maneuvering clearances for disabled patrons; e. Orchestra level cross access, i.e., access from one side of the Ellie to the other; f. Accessible box office/will call window for disabled patrons; g. Figaro access for disabled patrons; h. Removal of mobility devices from the aisles/storage of mobility devices next to
accessible seating; i. Accessible restrooms; j. Accessible bar and patron tables in the Kevin Taylor Restaurant; k. Signage; and l. Accessible elevators and/or lifts.
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Doc. No. 1, ¶¶ 25-29, 32-33, 35-36, 38-43, 46-52, 115-116, 124-133, 139-145. The CCDC and individual plaintiffs’ current complaint, the Third Amended and Supplemental Complaint, identifies design defects at the Ellie and Kevin Taylor Restaurant as the basis for the majority of their claims. See Doc. No. 99, ¶¶ 13-38, 61-69, 75-76, 79-100.
17. Pursuant to § 13-20-803.5, C.R.S., the City sent a Notice of Claim to Semple Brown on July 12, 2006. Third Party Complaint (Doc. No. 106) ¶ 20; Third Party Answer (Doc. No. 116) ¶ 20. In the Notice of Claim, the City demanded that Semple Brown both investigate the alleged defects at the Ellie and tender a written offer to remedy all identified defects and/or an offer to settle. Exh. 2, ¶ 5 (Exhibit D of Affidavit of Jack Finlaw). Semple Brown did not tender a written offer to remedy all identified defects and did not tender a written offer to settle.
18. The City has demanded that Semple Brown provide a defense for and indemnify the City against the claims made by CCRC. Third Party Complaint (Doc. No. 106) ¶ 21; Third Party Answer (Doc. No. 116) ¶ 21. Semple Brown has refused to do so.
19. As of today, Semple Brown has not remedied the defects alleged by the CCDC nor has Semple Brown tendered a defense or indemnification to the City. Third Party Complaint (Doc. No. 106) ¶ 22; Third Party Answer (Doc. No. 116) ¶ 22.
20. The City remains in litigation with CCDC regarding the accessibility of the Ellie and the Kevin Taylor Restaurant. The City has incurred substantial damages caused by the acts or omissions of Semple Brown, including, but not limited to, lost revenue for loss of seating, litigation costs, attorneys’ fees, and construction costs.
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III. ARGUMENT AND LEGAL AUTHORITY
A. Summary of Argument
The undisputed material facts establish that the allegations made by Plaintiffs against the City and County of Denver arise out of alleged defects in the design of the Ellie and Kevin Taylor Restaurant. Furthermore, the undisputed material facts establish that Semple Brown agreed to defend in litigation alleging design defects. Accordingly, the City is entitled to declaratory judgment that Semple Brown had and has a duty to defend the City against Plaintiffs’ allegations and claims in this case.3
B. Declaratory Judgment Standard:
Pursuant to 28 U.S.C. § 2201, this Court has the authority to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. The procedures for obtaining declaratory judgment are governed by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 57.
C. Summary Judgment Standard:
A plaintiff may move for summary judgment on all or part of a claim against him. See Fed. R. Civ. P. 56(a). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact regarding the existence of an element of the plaintiff’s claim and that the defendant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.
3 The City also takes the position that Semple Brown has the duty to indemnify (in addition to defend) the City against the claims brought by the Plaintiffs in this matter. However, because those claims are not resolved, the City does not seek declaratory relief on the issue of indemnification at this time.
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Catrett, 477 U.S. 317, 322 (1986). A party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth “affirmative evidence” showing there is a genuine issue of material fact for trial. See Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The substantive law governing the claims at issue dictates whether a fact is material. See Anderson, 477 U.S. at 248. Thus, where the substantive law provides that parol evidence cannot vary the terms of an integrated contract, evidence beyond the four corners of the contract is immaterial and should not be considered on summary judgment. See Applied Genetics, Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1246 (10th Cir. 1990). If the nonmoving party cannot present admissible evidence upon which the jury could reasonably find in its favor, the moving party is entitled to summary judgment. See Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995); see also Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1247 (10th Cir. 2000).
D. Contractual Duty to Defend:
Colorado courts have interpreted the contractual duty to defend in an insurance context. Colorado applies the “traditional duty to defend analysis to the underlying complaint to determine the insurer’s duty to defend.” Cotter Corp. v. American Empire Surplus Lines Ins. Co., 90 P.3d 814, 829 (Colo. 2004) (citing Thompson v. Md. Cas. Co., 84 P.3d 496, 502 (Colo. 2004)).
A duty to defend is broader than a duty to indemnify and protects the defendee’s “legitimate expectation of a defense.” Cotter Corp. v. American Empire Surplus Lines Ins. Co., 90 P.3d 814, 827 (Colo. 2004); see also Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1090 (Colo. 1991). In Colorado, to defeat a duty to defend, an insurer (or here, a contractually
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Case 1:06-cv-00865-MSK-BNB Document 131 Filed 07/11/08 USDC Colorado Page 11 of 14
obligated defender) must establish that “there is no factual or legal basis on which the insurer might eventually be held liable to indemnify the insured.” Hecla, 811 P.2d at 1090. “The determination of the insurer's duty to defend is separate from the determination of the duty to indemnify, and is based solely on factual allegations contained in the underlying complaint.” Cotter Corp. v. American Empire Surplus Lines Ins., supra, 90 P.3d at 827. This is often referred to as “the complaint rule.”
Although there are no published Colorado opinions discussing the duty to defend pursuant to a non-insurance contract clause, the complaint rule set forth by Colorado courts in insurance contract cases equally applies in non-insurance cases. Other jurisdictions have adopted the complaint allegation rule in non-insurance contexts, citing the fact that there is no logical basis not to extend it. See, e.g., Pancakes of Hawaii, Inc. v. Pomare Properties Corp., 944 P.2d 83, 88-91 (Haw. App. 1997) (duty to defend based on management agreement arose when any of the allegations in the underlying complaint potentially included conduct that arose under the management agreement); Herson v. New Boston Garden Corp., 667 N.E.2d 907, 914, fn.9 (Mass. App. 1996) (duty to defend based on contractual indemnity provision broader than duty to indemnify, rejecting argument that in non-insurance contracts, duty to defend is based upon duty to indemnify). See also, J.R. Simplot Co. v. Cheveron Chemical Co., 2006 U.S. Dist. LEXIS 70127, *33-34 (D. Utah, Sept. 27, 2006) (unpublished) (rejecting argument that a different duty to defend analysis should be used in non-insurance contract case applying Utah law).
E. Semple Brown Has a Duty to Defend the City Against the Claims of Plaintiffs
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As set forth above in Section II, virtually all of the claims brought by Plaintiffs in the Third Amended and Supplemental Complaint deal with design defects. The majority of the claims initially brought by Plaintiffs dealt with design defects. The design defects alleged by Plaintiffs constitute claims “resulting from, connected with, or arising out of, directly or indirectly, the tortious or negligent actions or omissions of the Design Consultant or those performing under it in connection with its operations or performance” of the Agreement. Therefore, under the plain language of the Agreement, Semple Brown had and has the duty to defend the City against the claims of Plaintiffs in this action.

CONCLUSION For the reasons set forth above, the City requests this Court enter a declaration that under the Design Services Agreement, Semple Brown had and has the duty to defend the City against the claims of Plaintiffs in this lawsuit.

DATED this 11th day of July, 2008.

Respectfully submitted,

/s/ Elizabeth J. Hyatt
Elizabeth J. Hyatt Elizabeth A. Starrs STARRS MIHM & PULKRABEK LLP 707 17th Street, Suite 2600 Denver, CO 80202 Telephone: 303-592-5900 Facsimile: 303-592-5910 Email: ehyatt@starrslaw.com
estarrs@starrslaw.com
Attorneys for City and County of Denver

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CERTIFICATE OF SERVICE
I hereby certify that on July 11, 2008, I electronically filed the foregoing THIRD
PARTY PLAINTIFF THE CITY AND COUNTY OF DENVER’S MOTION FOR
PARTIAL SUMMARY JUDGMENT via CM/ECF which will send notification of such filing
to the following:
Amy Robertson Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 Email: arob@foxrob.com
Timothy P. Fox Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 Email: tfox@foxrob.com
Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway Suite 775 Denver, CO 80203 Email: kwilliams@ccdconline.org
Timothy M. Schulte Jackson Kelly, PLLC-Denver 1099 18th Street #2150 Denver, CO 80202 Email: tmschulte@jacksonkelly.com
Andrew S. Ford Jackson Kelly, PLLC-Denver 1099 18th Street #2150 Denver, CO 80202 Email: asford@jacksonkelly.com
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Debra R. Knapp Denver City Attorney's Office-Municipal Operations 201 West Colfax Avenue Department 1207 Denver, CO 80202 Email: debra.knapp@denvergov.org Mary E. Toornman Denver City Attorney's Office-Municipal Operations 201 West Colfax Avenue Department 1207 Denver, CO 80202 Email: mary.toornman@ci.denver.co.us Robert G. Wheeler Assistant City Attorney Department of Law Municipal Operations Section 201 W. Colfax Ave., Dept. 1207 Denver, CO 80202 Email: robert.wheeler@denvergov.org
/s/ Elizabeth J. Hyatt ______________________________ Elizabeth J. Hyatt
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 Case 1:06-cv-00865-MSK-BNB Document 132 Filed 07/30/08 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No,: 06-CV-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON
Plaintiffs, v, THE CITY AND COUNTY OF DENVER, COLORADO
Defendant and Third-Party Plaintiff,
v,
SEMPLE BROWN DESIGN, P,C, Third-Party Defendant.
THIRD-PARTY DEFENDANT SEMPLE BROWN DESIGN, P.C.'S RESPONSE TO THIRD PARTY PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Third-Party Defendant, Semple Brown Design, p,e. ("Semple Brown"), by and through its attorneys Jackson Kelly PLLC, submits its Response to Third Party Plaintiffs Motion for Partial Summary Judgment as follows:
l. Introduction On or about August 12, 2002, Semple Brown entered into an Agreement to provide architectural design services for the City and County of Denver (the "City"), The
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Agreement included a limited indemnity provision whereby Semple Brown agreed to indemnify the City for certain actions and omissions attributable to Semple Brown. Relying heavily on case law from other jurisdictions and from insurance law, the City now asserts that the contract language should be broadly construed to require Semple Brown to defend the City for claims arising in this present action and seeks a declaration to that effect.
The City'S interpretation of the contract's indemnity provision is unduly broad, contrary to the plain language of the contract, and contrary to the intent of the parties in including the provision. Unlike an insurance contract, the fundamental purpose of an Agreement for architectural services is not to provide broad coverage regardless of fault. As with most construction contracts, an indemnity provision is included as an acknowledgement that should liability arise from the scope of services in the contract, the responsible party agrees to bear the costs of that liability. The indemnity provision in this Agreement is no different. Semple Brown agreed to indemnify the City for Semple Brown's own negligent or tortious actions or omissions. Although the term "defend" appears in the context of the indemnification clause, it was not contemplated as extending beyond Semple Brown's duty to indemnify the City.
While Semple Brown does not believe it has a duty to defend the City separate from its duty to indemnify the City, should the Court find otherwise, there are numerous questions of material fact that remain unanswered which preclude a finding that such a duty has been triggered. The indemnity provision is limited to that circumstance in which Semple Brown has been found liable for "tortious or negligent actions or

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omissions" "in connection with its operations or performance herewith or its use or occupancy ofreal or personal property hereunder." At this stage in the proceedings, there has becn no determination that Semple Brown has acted or failed to act in a tortious or negligent manner. Absent such a finding, Semple Brown's duties to the City are inchoate, and summary judgment as to this issue should be denied.
Finally, summary judgment is also inappropriate, as the City's own culpability may estop the City from seeking defense and indemnification. The allegations in the Plaintiffs complaint concern construction and/or design related issues for which the City or other parties may be at fault. In authorizing the design, demanding modifications to the design, and in expressly rejecting the recommendations of Semple Brown, the City may be fully liable for any damages which may arise from alleged design defects. As these determinations turn upon numerous issues of fact yet to be discovered or resolved, it would be premature for the Court to rule on Semple Brown's indemnity and defense obligations to the City. For these reasons, among others, the City'S Motion for Partial Summary Judgment should be denied.
II. Applicable Law A. Summary Judgment
it: Summary judgment is proper drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter oflaw. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,322-23, (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Celotex, 477 U.S. at 322. "Denver, as the

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moving party, has the initial burden to show 'that there is an absence of evidence to support the nonmoving party's case.'" Concrete Works a/Colorado, Inc. v. City and County a/Denver, 36 F.3d 1513, 1517-18 (lOth Cir. 1994) (internal citations omitted). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Id. at 1518.
B. Contract Interpretation "It is axiomatic that a contraet must be construed to ascertain and effectuate the intent of the parties as determined primarily from the language of the contract." East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969,974 (Colo. 2005). An integrated eontract is interpreted in its entirety to harmonize and give effect to all its provisions so that none will be rendered meaningless, and its terms are enforced according to their plain and generally accepted meanings. Trosper v. Wilkerson, 764 P.2d 375, 376 (Colo. App. 1988). Only where "the terms of an agreement are ambiguous or are used in some special or technical sense not apparent from the contract itself," may the court look beyond the four corners of the agreement. Id. at 376-77 (citation omitted). "If the court determines a contract is ambiguous and its construction depends on extrinsic evidence, then the interpretation of the contract becomes a question of fact." Stegall v. Little Johnson Assocs., Ltd., 996 F.2d 1043,1048 (lOth Cir. 1993) (citations omitted). Indemnity agreements are interpreted by the same rules of construction that govern contracts generally. Mid Centurv Ins. Co. v. Gates Rubber Co., 43 P.3d 737, 739 (Colo. App. 2002). "The extent of a contractual duty to indemnify must be determined from the contract itself." May Dept. Stores Co. v. University Hills, Inc., 824 P.2d 100,

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101 (Colo. App. 1991) (citing Wilson & Co. v. Walsenburg Sand & Gravel Co.. 779 P.2d
1386 (Colo. App.l989». To the extent there are ambiguities in the indemnity agreement,
they are to "be resolved against the party seeking indemnity." Williams v. White
Mountain Const. Co., Inc., 749 P.2d 423,426 (Colo. 1988). See also Heppler v. 1.M.
Peters Co.. 87 Cal. Rptr. 2d 497,509 (Cal. App. 4 Dist. 1999) ("Indemnity provisions are
to be strictly construed against the indemnitee .... ").
IlL Argument
A. Semple Brown's Duties are Limited to Claims Attributed to Semple
Brown's Tortious or Negligent Actions or Omissions
The contract is the sole source of any duty Semple Brown has to defend or
indemnifY the City. Accordingly, the scopc of that duty is dctermined by the language of
the contract. The relevant provision states as follows:
14.2 Indemnification: The Design Consultant shall defend, release, indemnify, and save and hold harmless the City, its officers, agents and employees from and against: (I) any and all damages, including but not limited to loss of use, to property or injuries to or death of any person or persons (including but not limited to property and officers, agents and employees of the City) and (2) any and all claims, demands, suits, actions, liabilities, costs expenses (including but not limited to reasonable attorney fees, expert witness fees and all associated defense fees), eauses of action, or other legal, equitable or administrative proceedings of any kind or nature whatsoever, of or by anyone whomsoever, regardless of the legal theory(ies) upon which premised, including but not limited to contract, tort, express andlor implied warranty, strict liability, and workers' compensation, in any way resulting from, connected with, or arising out of, directly or indirectly, the tortious or negligent actions or omissions of the Design Consultant or those performing under it in connection with its operations or performance herewith or its use or occupancy of real or personal property hereunder, including the tortious or negligent actions or omissions of subconsultants, and tortious or negligent acts or omissions of the officers, employees, agents, representatives, invitees, or

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licensces of the Design Consultant or its subconsultants; provided however, that the Design Consultant need not indemnify the City or its officers, agents and employees from damages proximately caused by and apportioned to the negligence of the City's officers, agents and employees. See Third Party Plaintiffs Ex. 1, Art. XIV (14.2) (emphasis added). As expressly set forth in the Section 14.2, the duties therein are contingent upon "the tortious or negligent actions or omissions of the Design Consultant or those performing under it .. ,," As evidenced by this language, the intent of this provision is to limit the defense and indemnification duties owed by Semple Brown to tortious or negligent actions or omissions attributed to Semple Brown and/or its subconsultants, officers, employees, agents, representatives, invitees, or licensees. It protects the City from liability for which Semple Brown is responsible. Consistent with that end, it also expressly excludes liability attributable to the negligence of the City's officers, agents and employees (oo ... the Design Consultant need not indemnify the City or its officers, agents and employees from damages proximately caused by and apportioned to the negligence of the City's officers, agents and employees."). The plain language of Section 14.2 eonditions the obligations of Semple Brown upon a finding that Semple Brown committed tortious or negligent acts or omissions. At this stage in the proceedings, there has been no such finding. Discovery is ongoing and the issues ofliability are hotly contested and are the primary subject of the lawsuit. Until such a determination has been made, the duties under Section 14.2 are not triggered, because unproven allegations are insufficient to trigger the obligations thereunder. See, ~ May Dep't Stores Co. v. University Hills, Inc., 824 P.2d 100 (Colo. App. 1991)

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(Exclusion provision oflease agreement providing that tenant's indemnifieation obligation did not apply to claims that arise "from any negligent aet or omission" of landlord, and whieh defined "claims" as "claims, damages, costs, expenses (including reasonable attorney fees and court costs) and liabilities," freed tenant from its obligation to indemnify landlord only if claims at issue arose from actual negligent acts of landlord; thus, unproven allegations oflandlord's negligence were insufficient to invoke exclusion provision.). Aecordingly, summary judgment on this issue is premature and will remain so until all issues of material fact pertaining to liability in the case have been resolved. I
B. Semple Brown's Duty to Defend is No Broader Than its Duty to Indemnify Contractual indemnity clauses are strictly construed against the indemnitee, and
unlike in the insuranee context, there is no duty that extends beyond the parties' agreement. Compare Cyprus Amax Minerals Co.. 74 P.3d at 299 (construing ambiguous provisions against the insurer and in favor of providing coverage to the insured) with Williams, 749 P.2d at 426 (construing ambiguous provisions against the party seeking indemnity). See also May Dept. Stores Co., supra. Contrary to the City's assertions, Semple Brown's contractual duty to defend is not the same as that of an insurer's duty to defend, nor is it triggered by the "Complaint Rule." Rather, Semple Brown's duty to defend is limited by its agreement such that it is no broader that Semple Brown's duty to indemnify.

I The question of whether the parties intended the scope of the indemnity clause to include the duty to defend is itself a question of fact which precludes summary judgment. See Stegall, 996 F.2d at 1048.

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In the insurance context, the duty to defend is recognized as broader than the duty to indemnify. Sec Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294,299 (Colo. 2003). Under Colorado law, "if the alleged facts even potentially trigger coverage under the policy, the insurer is bound to provide a defense." Id. "In the duty to defend context, the' complaint rule' operates to cast a broad net, such that when the underlying complaint alleges any facts or claims that might fall within the ambit of the policy, the insurer must tender a defense." Id. at 301. This broad duty is recognized in light of the "unique nature of insurance contracts and the relationship between the insurer and insured." Id. at 299.
Although the City cites cases outside of Colorado in support of the proposition that the Complaint Rule operates in the non-insurance context, Colorado does not follow this rule. Instead, Colorado follows those jurisdictions which view a non-insurer's duties as far more limited. See, e.g., Rodriguez v. Savoy Boro Park Associates Ltd. Partnership, 759 N.Y.S.2d 107, 108 (N.Y.A.D. 2 Dept. 2003) (subcontractor's duty to defend is no broader than its duty to indemnifY); Heppler, 87 Cal. Rptr. 2d at 509,512-13 ("Indemnity provisions are to be strictly construed against the indemnitee, and had the parties intended to include an indemnity provision that would apply regardless of the subcontractor's negligence, they would have had to use specific, unequivocal contractual language to that effect. .. .Insurers have a distinct and free-standing duty to defend their insureds as opposed to indemnitors, whose duty to defend is not triggered until it is determined that the proceeding against the indemnitee is 'embraced by the indemnity. "') (internal citation omitted).

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In a reeent case, the Colorado Court of Appeals addressed a similar "defend and
indemnify" provision in a construction contract and did not apply the Complaint Rule. In
D.R. Horton. Inc.-Denver v. D & S Landscaping. LLC, the Court found that summary
judgment in favor of the indemnitor (subcontractor) on the issue of indemnity was
appropriate where the indemnitee (general contractor) failed to offer facts in support of
its negligence claim. WL 2522232, *8 -9 (Colo. App. 2008) (unpublished).
Significantly, the Colorado Court of Appeals did not elect to treat the duty to defend as
distinct from the duty to indemnify, nor did it broadly impose a duty to defend upon the subcontractor. It did not find or impose such duties even though the "defend and
indemnify" provision at issue was broader than the one here. The contract between D.R.
Horton and D& S Landscaping required:
D & S to protect, defend, indemnify and hold [D.R.] Horton ... free and harmless from and against any and all claims, demands, causes of actions, suits or other litigation (including all costs thereof and attorneys' fees) of every kind and character ... in any way occurring, incident to, arising out of, or in connection with, (I) a breach of the warranties and covenants provided herein by contractor; (II) the work performed or to be performed by contractor or contractor's personnel, agents, suppliers or permitted subcontractors; or (III) any negligent aetion and/or omission of the indemnitee related in any way to the work, even when the loss is eaused by the fault or negligence of the indemnitee.
Id. at *9. The Colorado Court of Appeals read this "to require in eaeh instance that the contractual indemnity be based upon the work performed by the subcontractors." Id. at
*8. Finding an absence of evidence triggering the indemnity provision, the Court
dismissed the claims. Id. at *9-10.

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As evidenced by the Colorado Court of Appeals' approach in D.R. Horton. Inc.-
Denver v. D & S Landscaping. LLC, Colorado does not employ the "Complaint Rule" in
the non-insurer context. Ifthe Court of Appeals had taken that approach, it would have
looked to the pleadings, particularly D.R. Horton's complaint, and the HONs original
complaint which alleged, inter alia, "construction defects, including improper soil
compaction, improper drainage, exterior and interior concrete problems, improper
driveways, and improperly designed and installed landscaping and irrigation." Id. at *I.
The Court could easily have found these allegations to include facts or claims arising
from either "any negligent action and/or omission of the indemnitee," the "breach of the
[D&S Landscaping's] warranties and covenants," or "the work performed or to be
performed by [D&S Landscaping]." Id. at *8. Given that the HONs Complaint only
needed to allege any fact concerning negligent landscaping work, this option was readily
available to the Court. Instead, the Court limited the subcontract to its terms and declined
to follow the broad duty to defend rule employed in the insurance context.
In a recent Vermont case, Tateosian v. State, the Supreme Court of Vermont
compared the two approaches to the duty to defend in a similar situation:
... obligations assumed through contractual indemnity differ from those an insurance company agrees to provide. For example, as one court explained, while insurance contracts are contracts of adhesion and thus construed against the insurer, as the stronger bargaining power, non insurance indemnity agreements should be construed against the indemnitee because subcontractors who indemnity gcneral contractors occupy an inferior bargaining position. Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal.2d 40, 41 Cal.Rptr. 73, 396 P.2d 377, 382 (1964). This rationale applies to the current case, where the indemnity language was drafted by the State and included on a standard purchasing form as language applicable to any vendor who did business with the State. The United States Supreme Court

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has noted in this context that the relationship between the federal government and a particular government contractor is one of "a vast disparity in bargaining power and economic resources between the parties." United States v. Seckinger, 397 U.S. 203, 212, 90 S.Ct. 880,25 L.Ed.2d 224 (1970). While this broad generalization may not fully apply to the State of Vermont, it underscores the difference in the relationship between the State and its vendor versus the one between an insured and insurance company. Insuranee companies have broader defense obligations because "an insurance company's agreement to defend actions against the insured is one of the 'fundamental obligations' of the insurance contract; in contrast, the agreement to defend and indemnify in a [commcrcial contract] is incidental to the main purpose of the agreement ...." Ervin v. Sears, Roebuck & Co., 127 Ill.App.3d 982, 82 Ill.Dec. 709, 469 N.E.2d 243, 249 (1984) (citation omitted).
945 A.2d 833, 838 (Vt. 2007).
As Semple Brown's contract involves a non-insurer indemnity provision in a
contract between the City of Denver and its vendor, the rationale in Tateosian is
particularly helpful here. Unlike an insurer, Semple Brown is in a weaker bargaining
position, the indemnification and defense clause is incidental to the agreement, there is no
unique relationship wherein Semple Brown has a fundamental obligation to defend
actions brought against the City of Denver, no insurance premium has been paid, and the
terms of its indemnity clause are expressly limited. As in Tateosian, and consistent with
Colorado law, the contract should be viewed under traditional principles of contract
interpretation and without the special duties and considerations attendant to agreements
between insurance companies and their insured. Aceordingly, Semple Brown's duties
arise if and only if Semple Brown is the cause of the alleged damage or injury whether by
tortious or negligent acts or omissions. They do not arise whenever a claim is asserted
against the City without some prior determination ofliability.

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C. Issues of Material Fact Remain and May Preclude The City From Asserting a Contractual Right to Defense or Indemnity
As noted above, the ultimate issue of liability has yet to be determined. At this early stage, it is unclear whether Semple Brown or the City will be found liable for any of the claims made in Plaintiffs Complaint. It is further unclear as to how liability, if any, will be apportioned. With respect to the specific allegations in Plaintiffs complaint, Semple Brown does not believe it is liable for the alleged defects for a number of rcasons, including but not limited to:
• The City's approval of Semple Brown's design; • The approval of the Mayor's Commission for People With Disabilities of
Semple Brown's design and the City of Denver's Department of Public Works as required by the design services agreement, see Third Party Plaintiffs Ex. I, Art. I (1.8) and Art. IV (4.4); • The failure of the building to be constructed as designed; see Affidavit of Jonathan Springer, attached here to as Exhibit A. • The City's Administrative Modification, attached hereto as Exhibit B, directing, among other things, Semple Brown to alter its choice of elevator; • Such other affirmative defenses as set forth in Semple Brown's Answer Viewed in the light most favorable to Semple Brown, it may be assumed that liability, if any, will be entirely apportioned to the City or to other parties for whom Semple Brown is not responsible. In such circumstances, the duties and obligations of Semple Brown under Section 14.2 are not triggered. Given that a finding of no liability

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as to Semple Brown is and remains a viable outcome, summary judgment as to the issue of the defense and indemnity provision is altogether premature. Without some determination of liability, Semple Brown simply has no duty to defend or indemnify the City.
Furthermore, if the City is found eompletely liable, then indemnification and defense are barred both by the terms of the contract (distinguishing between Semple Brown's liability for negligent or tortious aets or omissions and those acts and omissions of the City), and by C.R.S. §13-21-111.5 Cno defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligencc or fault attributable to such defendant that produced the claimed injury, death, damage, or loss ... "). As a matter oflaw and of public policy, the City cannot contract away its own negligence. See Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 922 (10th Cir. 1993) (citing 6A Arthur L. Corbin, Corbin on Contracts § 1472, at 596-97 (1962» (quoting ANR Production Co. v. Westburne Drilling. Inc., 581 F.Supp. 542, 547 (D. Colo. 1984».
Finally, notwithstanding a possible finding ofliability as to Semple Brown, the City's own culpable conduct may estop the City from seeking defense and indemnification. "While the doctrine of equitable estoppel is not as freely invocable against a municipality as it is against an individual, a court may nevertheless apply the doctrine whenever necessary to prevent manifest injustice. Jones v. City of Aurora, 772 P.2d 645, 647 (Colo. App. 1988) (citations omitted). The doctrine requires that "a party must show that he detrimentally changed position in justifiable reliance on

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representations made by the city." Id. (citations omitted). "Once applied the doctrine does not allow a municipality to take a position contrary to its prior position." Id. (citations omitted). "Whether the circumstances of a particular case reveal a representation and reasonable relianee so as to give rise to equitable estoppel is a question Off~ICt." Kohn v. City of Boulder, 919 P.2d 822, 825 (Colo. App. 1995) (citing P-W Investments, Inc. v. Westminster, 655 P.2d 1365 (Colo. 1982».
Here, the City's actions may have effectively waived the City's rights, ifany, to defense and indemnifieation from or by Semple Brown, and the City may be estopped trom asserting those rights. To the extent that the City may be responsible for directing, approving, or assuming obligations for Semple Brown, authorizing Semple Brown's design, demanding modifications to the design, and in expressly rejeeting the recommendations of Semple Brown during the course of the project, the City may be estopped from seeking defense and indemnification from Semple Brown if Semple Brown justifiably relied on these representations.
As evidenced by the Agreement, the Administrative Modification issued by the City, and as averred in Jonathan Springer's affidavit, the City has been involved in approving Semple Brown's design and in making modifications thereto. It was reasonable for Semple Brown to rely on the City's representations as the City'S Building Department, the Department of Public Works, the Mayor's Commission for People with Disabilities, and various other City representatives were involved in the review and approval of the design, and authorized representatives of the City directed and approved design changes. Thus, the City should be estopped from now asserting, contrary to its

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previous position, that Semple Brown's design was defective. At the least, it would be manifestly unjust to permit the City to shift its liability onto Semple Brown where the City's own actions may have caused Semple Brown to be exposed to liability for defective design work.
As these determinations tum upon numerous issues of fact yet to be discovered or resolved, it would again be premature for the Court to rule on Semple Brown's indemnity and defense obligations to the City. As this issue is not ripe for determination, the City's Motion should be denied.
IV. Conclusion The City has brought this motion for partial summary judgment as to the sole issue of Semple Brown's duty to defend. As discussed above, by the terms of the indemnity provision, the duty to defend is conditioned upon "the tortious or negligent actions or omissions of the Design Consultant or those performing under it. ..." The duty to defend cannot arise until a determination of that condition has been made. Moreover, in the noninsurance context, and contrary to the City's assertions, Colorado does not follow those jurisdictions which treat the duty to defend the same as between insurers and noninsurers. Rather, Colorado follows those jurisdictions which recognize that an insurer's obligations to an insured follow from the unique relationship between an insurer and insured, and that these obligations are not presumed in a non-insurance context. Thus, Semple Brown's duty to defend is no broader than its duty to indemnity and is not triggered by the Complaint Rule or mere unproven allegations. Finally, as numerous questions of fact have yet to be determined, including the

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ultimate issue of liability apportionment, if any, Semple Brown's duties have not been triggered. The possibility remains that there may be no liability as to Semple Brown, whatsoever. In accordance with the express terms of the indemnification provision and in accordance with Colorado's Revised Statues, Semple Brown has no duties as to the City should it be found without fault. And last, even if liability is apportioned to Semple Brown, the City's own actions may estop it from enforcing the defense and indemnity provisions against Semple Brown, as it may have waived these rights through its own actions.
WHEREFORE, for the reasons set forth above, Semple Brown Design, P.C. respectfully requests the City's Motion for Partial Summary Judgment be DENIED.

Dated this 30th day of July, 2008.
JACKSON KELLY PLLC
sl Timothy M. Schulte Timothy M. Schulte, Reg. No. 20981 Andrew S. Ford, Reg. No. 22607 1099 18th Street, Suite 2150 Denver, Colorado 80202 303/390-0003; FAX 303/390-0177 tmschulteiaJj acksonkelly. com as fordiaJj acksonkclly .com Attorneys/or Semple Brown Design, P.e.

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CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of July, 2008, a true and correct copy ofthc foregoing THIRD-PARTY DEFENDANT SEMPLE BROWN DESIGN, P.c.'S RESPONSE TO THIRD PARTY PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT was e-filed via CM-ECF addressed to the following:

Kevin W. Williams, Esq. Colorado Cross-Disability Coalition
655 Broadway, Suite 775 Denver, Colorado 80203
Attorneys for Plaintiffs

Timothy P. Fox, Esq. Amy F. Robertson, Esq. Ari Krichiver, Esq. Fox & Robertson, PC 910 16th Street, Suite 610 Denver, Colorado 80202
Attorneys for Plaintiffs

Elizabeth A. Starrs, Esq. Elizabeth L. Smith, Esq. StatTs Mihm & Caschette, LLP 707 Seventeenth Street, Suite 2600 Denver, Colorado 80202
Attorneys for Defendant/Third Party Plaintiffs

Mary E. Toornman, Esq. Debra R. Knapp, Esq. Robert G. Wheeler, Esq. City & County of Denver City Attorney's Office 201 West Colfax Avenue, Dept. 1207 Denver, Colorado 80202-5332
Attorneysfor The City and County of Denver

s/ Virginia L. Schermerhorn

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 Case 1:06-cv-00865-LTB-BNB Document 133 Filed 08/04/2008 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant.
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT/THIRD PARTY PLAINTIFF CITY AND COUNTY OF DENVER
Plaintiffs Laura Hershey, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Daniel Wilson (the “Moving Plaintiffs”), by and through their counsel, hereby move for partial summary judgment as to the number and location of wheelchair accessible seats in the Orchestra section of the Ellie Caulkins Opera House.

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INTRODUCTION The Moving Plaintiffs -- all individuals with disabilities who use wheelchairs -- have brought suit against Defendant City and County of Denver (the “City”) under Title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, challenging wheelchair access at the newly remodeled Ellie Caulkins Opera House (“Opera House”). The Moving Plaintiffs bring the present motion based on the undisputed fact that (1) there are an insufficient number of wheelchair accessible seating spaces on the Orchestra level of the Opera House, and that (2) all of the existing accessible spaces on that level are improperly clustered to the sides and back. While other issues remain in the case, Moving Plaintiffs respectfully request partial summary judgment as to liability on these two issues.
UNDISPUTED FACTS 1. The Ellie Caulkins Opera House is the “premier venue”1 for theatrical, musical, and other types of performances in Denver. Defendant City and County of Denver (the “City”) owns and operates the Opera House. (Answer of Def. City and County of Denver to Pls.’ Third Am. and Supplemental Compl. (“Third Answer”) ¶ 10 (Docket No. 103).) 2. The Opera House was built from a “complete renovation” of the inside of an existing auditorium, starting in 2004. (Third Party Pl. the City and County of Denver’s Mot. for Partial Summ. J. (“Third Party Mot. for Summ. J.”) (Docket No. 131) ¶ 2; see also Def.’s Resps. to Pls.’ First Set of Reqs. for Admis. to Def. City and County of Denver (“Resp. to RFAs”)

1

Ellie Caulkins Opera House Welcome Message.

http://www.denvergov.com/Default.aspx?alias=www.denvergov.com/Ellie_Caulkins_Opera_Ho

use (last visited Aug. 4, 2008).

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(Robertson Decl. Ex. 2) ¶ 4 (admitting that the renovation was an alteration within the meaning of the ADA and Section 504.)) It opened its doors to the public in October of 2005. (Third Answer ¶ 11.)
3. The Opera House provides seating on five levels: the Orchestra; the Parterre; the Mezzanine; the Loge; and the Balcony. Diagrams of these seating areas -- as produced by the City -- are set forth in Exhibit 1 to the Robertson Declaration. The Orchestra is on the lowest level and is closest to the stage. The Parterre is situated entirely behind the Orchestra level. The Mezzanine, Loge and Balcony levels are each progressively one floor higher. (See Answer of Def. City and County of Denver to Pls.’ Second Am. Compl., ¶ 30 (Docket No. 34).)
4. When fully installed, the Orchestra level contains 607 seats. (Resp. to RFAs ¶ 13.) There are four wheelchair accessible seating locations in the Orchestra level. (Id. ¶ 14.) There are no wheelchair accessible seating locations closer to the stage than Row P. (Id. ¶ 17.)
5. The Moving Plaintiffs are all individuals with disabilities within the meaning of the ADA and section 403 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(9)(B). (Resp. to RFAs ¶¶ 1-2.) They all require the use of wheelchairs for mobility. (Decl. of Carrie Ann Lucas ¶¶ 2-6 (relating to Ms. Lucas and her daughters, Heather and Adrianne); Decl. of Laura Hershey ¶ 2; Decl. of Daniel Wilson ¶ 2.)
6. The City has admitted generally, in filing its third party complaint against the architects who designed the Opera House, that the “design of the [Opera House] . . . failed to meet applicable state, federal and local requirements and standards.” (Third Party Compl. and Jury Demand ¶ 26(b) (Docket No. 106).)
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ARGUMENT I. Elements of a Claim Under Title II and Section 504.
Title II prohibits discrimination on the basis of disability by public entities. 42 U.S.C. § 12132. Section 504 prohibits discrimination on the basis of disability by recipients of federal financial assistance. 29 U.S.C. § 794. The requirements of Title II are the same as those of Section 504. Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 859 (10th Cir. 2003).
To establish a claim under Title II or Section 504, Moving Plaintiffs must establish that (1) they have disabilities; (2) they are otherwise qualified for the program at issue; (3) the program is a public entity (Title II) or receives federal financial assistance (Section 504); and (4) Defendant discriminated against Plaintiffs. See Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). In this case, it is undisputed that the Moving Plaintiffs have disabilities. (Resp. to RFAs ¶ 1.) Since the Opera House is open to the public, they are qualified simply by dint of being members of the public eligible to purchase tickets and attend performances. The City is a public entity as defined in Title II, see 28 C.F.R. § 35.104 (defining “public entity” to include local governments), and admits to receiving federal financial assistance (Third Answer ¶ 91). Thus the only question at issue in this motion for partial summary judgment is whether the City discriminated against Plaintiffs, specifically on the grounds that (1) it failed to include sufficient accessible seating in the Orchestra level of the Opera House, and (2) it failed to provide accessible seating toward the front of that level.
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Department of Justice (“DOJ”) regulations interpreting Title II, which have the force of law,2 require that when a facility or any part thereof is altered after January 26, 1992, it must, to the maximum extent feasible, be altered so that the altered portion is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.151(b); see also 28 C.F.R. § 41.58(a) (Section 504 regulations; same requirement). Because the Opera House involved a “complete renovation” of the original auditorium in 2004-2005, the entire interior of the facility must comply with this provision. In this case, the provision requires compliance with the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. pt. 36, app. A, available at http://www.ada.gov/adastd94.pdf. See 28 C.F.R. § 35.151(c).3 II. The Opera House Lacks Sufficient Accessible Seating in the Orchestra Section.
Because the Orchestra has 607 seats (see Resp. to RFAs ¶ 13), it is required to have seven wheelchair accessible seating spaces. At the very least, the four seats it currently has (see id. ¶ 14) do not satisfy the requirements of the ADAAG.
Section 4.1.3(19)(a) of the ADAAG requires that facilities with over 500 seats have six accessible spaces plus one additional space for each one hundred additional seats. Because the

2

See Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (holding that Congress

has expressed approval of these regulations and they thus have the force of law).

3

Relevant provisions of the ADAAG are included as an Appendix to this motion.

The regulation requires compliance with either the ADAAG or the Uniform Federal Accessibility

Standards (“UFAS”), 41 C.F.R. pt. 101-19.6, app. A, available at

http://www.access-board.gov/ufas/ufas-html/ufas.htm. See 28 C.F.R. § 35.151(c). A given

alteration must comply with one standard or the other in its entirety. “The Americans with

Disabilities Act Title II Technical Assistance Manual,” § II-6.2100 (“All alterations in the same

building must be done in accordance with the same standard”), available at

http://www.ada.gov/taman2.html. Because only approximately one percent of the total seats in

the Opera House are accessible, see Robertson Decl. Ex. 1, rather than the two percent required

by the UFAS, see id. § 4.1.2(18)(a), the City has elected to attempt to comply with the ADAAG.

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first 500 seats require six accessible positions and the remainder require one out of every 100, this standard requires one percent of the total plus one seat to be accessible.
This one-percent requirement applies to both the overall facility and to each discrete area within the facility. Section 4.33.3 of the ADAAG states that “[w]hen the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location . . ..” This provision requires that wheelchair-accessible seating be “dispersed more or less evenly throughout the categories of ticket prices and classes of seating.” Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 709 & n.9 (D. Or. 1997).4 To achieve the required dispersal, such seating must be “provided in a number equal to approximately one percent of the seats in each price range, level of amenities, and viewing angle.” Id. (quoting letter dated Nov. 21, 1994 from the DOJ regarding Yakima Stadium); quoted in Colo. Cross-Disability Coal. v. Colo. Rockies Baseball Club, Ltd., 336 F. Supp. 2d 1141, 1148 (D. Colo. 2004) (Johnson, J.)
Because the Orchestra section has 607 seats, the requirement of one percent accessible seating in each area mandates at least seven wheelchair accessible spaces in that section. At the very least, having only four accessible seats does not comply. III. The Opera House Lacks Required Accessible Seating Toward the Front of the
Orchestra Section. It is also inappropriate to cluster the Orchestra level accessible seating positions to the side and most of the way to the back of that section. As demonstrated by the Opera House seating charts, there is no front-row accessible seating on any level anywhere in the Opera House.

4

See also Accessible Stadiums, U. S. Dep’t of Justice,

http://www.ada.gov/stadium.pdf, at 1 (Section 4.33.3 requires dispersal of wheelchair seating

“throughout all seating areas”).

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(Robertson Decl. Ex. 1.) Indeed, on most levels, accessible seating is located behind all other seats. (Id. at 2-4.) On the Orchestra level, all of the accessible seating is located in Row P. (Id. at 1.) Because the rows go from A to X on that level, the closest accessible seating is thus twothirds of the way back. In addition, the accessible seating is located to the far right and far left of that section; there is no accessible seating anywhere in the center section of the Orchestra level.
Section 4.33.3 of the ADAAG requires not only that accessible seating be dispersed; it also requires that “[w]heelchair areas . . . shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. . ..” Congress, in discussing the ADA’s “fundamental principle” of integration for people with disabilities, stated that: “[h]istorically, persons with disabilities have been relegated to separate and often inferior services. For example, seating for persons using wheelchairs is often located in the back of auditoriums.” H.R. Rep. No. 101-485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 385 (emphasis added), quoted in Colo. Rockies, 336 F. Supp. 2d at 1145. Congress specifically concluded that, “it is critical that seating be available in the front of the audience for persons with hearing and vision impairments, including those who use wheelchairs.” Id. at 103, reprinted in 1990 U.S.C.C.A.N. at 386. Though dispersal is required even in the absence of such impairments, Plaintiff Carrie Ann Lucas and her daughter Heather both have both hearing and vision impairments. (Lucas Decl. ¶¶ 2, 4.)
A number of cases have held that clustering of wheelchair seating to the side and rear is not permitted. In the Oregon Arena case, for example, the defendant had placed all wheelchair seating in the corners of the end of a basketball arena. The court held that this violated the
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dispersal requirement. Id., 982 F. Supp. at 716-17. The Third Circuit has held that the requirement of comparable lines of sight, ADAAG § 4.33.3, means that
if a facility’s seating plan provides members of the general public with different lines of sight to the field or stage (e.g., lines of sight at a baseball game from behind the plate, on either side of the diamond, and from the outfield bleachers), it must also provide wheelchair users with a comparable opportunity to view the field or stage from a variety of angles. Caruso v. Blockbuster-Sony Music Entm’t Ctr. at the Waterfront, 193 F.3d 730, 732 (3d Cir. 1999). Here, the inaccessible seating in the Opera House permits nondisabled people to view the stage from the front and from the center. Those viewing angles are not available to individuals with disabilities: there are no front row accessible seats anywhere in the Opera House; and any seats in the center are much farther back in the Parterre, Mezzanine and Loge levels.
CONCLUSION Plaintiffs respectfully request that this Court grant partial summary judgment in their favor and against the City, and hold that the Opera House is in violation of Title II and Section 504 because: (1) it has too few accessible seating positions on the Orchestra level; and (2) wheelchair seating in the Orchestra level is clustered toward the back and on the sides. This motion is one for partial summary judgment as to liability only. Plaintiffs respectfully request that the remedy for these violations be addressed in a later proceeding.
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Respectfully submitted,
s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 Tel: 303.595.9700 Fax: 303.595.9705 Email: arob@foxrob.com
Attorneys for Plaintiffs
Dated: August 4, 2008

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Tel: 303.839.1775 Fax: 303.839.1782 Email: kwilliams@ccdconline.org

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CERTIFICATE OF SERVICE

I hereby certify that on August 4, 2008, I electronically filed the foregoing document and the attached Declarations of Amy F. Robertson, Carrie Ann Lucas, Laura Hershey and Daniel Wilson with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Elizabeth A. Starrs Elizabeth L. Smith Elizabeth J. Hyatt Starrs Mihm & Pulkrabek LLP 707 17th Street, Suite 2600 Denver, Colorado 80202 estarrs@starrslaw.com ehyatt@starrslaw.com booka.smith@starrslaw.com
Debra R. Knapp Mary E. Toornman Robert Griffin Wheeler Assistant City Attorneys City and County of Denver Department of Law 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 debra.knapp@denvergov.org mary.toornman@ci.denver.co.us robert.wheeler@denvergov.org

Timothy M. Schulte Andrew Scott Ford Jackson Kelly PLLC Suite 2150, 1099 18th Street Denver, Colorado 80202 tmschulte@jacksonkelly.com asford@jacksonkelly.com
Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 kwilliams@ccdconline.org

s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 16th Street, Suite 610 Denver, CO 80202 Tel: 303.595.9700 Fax: 303.595.9705 Email: arob@foxrob.com

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Appendix

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 Case 1:06-cv-00865-MSK-BNB Document 138 Filed 08/15/08 USDC Colorado Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-LTB-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v.
THE CITY AND COUNTY OF DENVER, COLORADO, Defendant and Third Party Plaintiff,
v.
SEMPLE BROWN DESIGN, P.C., Third Party Defendant.

THIRD PARTY PLAINTFF CITY AND COUNTY OF DENVER’S REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

1.

The City and County of Denver (“Denver” or “City”), by and through the

Denver City Attorney’s Office, submits this reply to Semple Brown’s Response to Third

Party Plaintiff’s Motion for Summary Judgment [“Response”] (Docket No. 132).

A. Semple Brown’s Position

2. Semple Brown admits that it signed a contract promising to “defend…any and all

claims…of any kind or nature whatsoever…in any way resulting from…or arising out

of…the tortious or negligent actions or omissions of the Design Consultant…” [Ex. 1,

Art. XIV (14.2)] In addition, Semple Brown admits that the “allegations in the Plaintiff’s

complaint concern construction and/or design related issues…” [Response, page 3, lines

8-9, emphasis added]. While the City will address Semple Brown’s arguments below

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these undisputed facts are the only facts necessary for this Court to find that as a matter of law Semple Brown has a contractual duty to defend the City.
3. Semple Brown argues that its promise to defend is meaningless. It argues that “defend” means exactly the same thing as “indemnify.” Amazingly, Semple Brown argues that interpreting “The Design Consultant shall defend” to mean that Semple Brown must defend the City is “contrary to the plain language of the contract, and contrary to the intent of the parties.” [Response at 2]. B. The Contract is Not Ambiguous; Semple Brown’s Duties to Defend and to Provide Professional Expert Services For Such Defense Are Broader, Separate, and Independent of the Indemnification Obligation
1. Denver and Semple Brown executed the Design Services Agreement on August 12, 2002 [hereinafter “agreement” or contract”] (Docket No. 104-3). The contract allocated and sequenced responsibilities between the parties in the event of claims or litigation against the City relating to the design work. The first, independent obligation was for Semple Brown to defend the Plaintiffs’ claims against the City. [“The Design Consultant shall defend…” Ex. 1, Art. XIV (14.2)]. Who better to defend the City as to design matters than the Design Consultant who:
a) “provide[d] comprehensive design services, construction contractor selection, construction contractor preconstruction and construction contract administration” of the whole project as well as providing “all architectural, engineering, interior design, utility coordination, and other design services…including without limitation… the preparation of all drawings and specifications, participation in preconstruction efforts and preparation of construction documents and assistance with the administration of construction contracts…” [Ex. 1, Recitals, page 1 (emphasis added); see also contract excerpts at Ex. 3 and the City’s opening brief at 3-5]; b) [agreed to] “design the Project in strict compliance with all applicable laws, codes, ordinances, rules and regulations, and industry standards” [Ex. 1, Art. II (2.2.7)]; c) “further agree[d] to design the project in strict compliance with all applicable laws, statutes, codes, ordinances, rules and regulations, and industry standards” [Art. IX
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(9.1)]; d) prepare[d] “drawings and other documents to fix and describe the size and character of the entire Project as to architectural, structure, civil,…interior design, ADA compliance and such other elements as may be appropriate.” [Ex. 1, Art. IV (4.1) (emphasis added)]; e) [agreed to make its design] “comply with all ADA requirements…” [Ex. B to Ex. 1, Semple Brown’s Proposal at page 29; and, f. prepare[d] the following written reports…b.(ii) analyses of applicable code, ADA issues, …. Ex. 1, Art. IV (4.1) (emphasis added)]. 2. Semple Brown admits that it may have defense obligations but argues that the contract only requires it to defend the City after a verdict as has been reached assigning liability to Semple Brown. Response at 6. Semple Brown’s interpretation is contrary to the plain meaning of the word “defend” and inconsistent with the terms of the agreement. For example, the agreement requires that Semple Brown provide professional services to defend claims against the City arising out of “alleged errors or omissions of the Design Consultant…” Ex. 1, Art. II (2.2.8). The Design Consultant shall provide all professional services required by the City in defending all claims against the City, which relate in any way to alleged errors or omissions of the Design Consultant or its subconsultants, without additional compensation. Ex. 1, Art. II (2.2.8). There is no way to reconcile this language with Semple Brown’s argument that the agreement only requires it to defend claims after a verdict is entered. 3. As demonstrated by the language above, Semple Brown has a duty to defend and provide expert witnesses when errors or omissions are alleged in its work. Semple Brown has a separate and more limited obligation to indemnify the City for damages apportioned to Semple Brown’s work. …provided however, that the Design Consultant need not indemnify the City or its officers, agent and employees from damages proximately caused by and apportioned
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to the negligence of the City’s officers, agents and employees. Ex. 1, Art. XIV (14.2).1
4. Contrary to the indemnification language in the agreement, the defense language is in the present tense. The agreement says Semple Brown “shall defend”, not “pay for a defense later.”
5. In ascertaining the meaning of a contract, the contract must be considered in its entirety, and, whenever possible, each clause must be given effect. Federal Leasing, Inc. v. Amperif Corp., 840 F.Supp. 1068, 1074 (Md.1993) (all contract provisions should be construed to give them meaning, rather than to make them meaningless). Semple Brown effectively asks the Court to delete its promise to defend from the Design Services Agreement or interpret it so that it is meaningless.
6. The only way to give meaning to the provisions of the agreement relating to defense and indemnification is to treat them as separate and distinct obligations in which the defense obligation is triggered by allegations of design defects. To read these provisions any other way would make Semple Brown’s promise to defend virtually worthless.
7. The language of the agreement is not ambiguous and a reasonably prudent person could not understand the defense paragraphs to suggest two possible meanings. In its
1 Semple Brown asserts at Response page 5, 7 that to the extent that there are ambiguities in an indemnity agreement, they are to be resolved against the party seeking indemnity, citing Williams v. White Mountain Construction Co., Inc., 749 P.2d 423, 426 (Colo.1988) and Heppler v. J.M. Peters Co., 87 Cal.Rptr.2d 497, 509 (Cal.App.4Distr.1999). Semple Brown then insinuates that the duty to defend should likewise be construed against the party seeking the defense. That is not what the cases hold. They do not address the duty to defend. Williams addresses only the issue of whether there was an oral indemnity agreement. The cases in fact limit the interpretation against the party seeking indemnification to cases in which that party would be held completely harmless for its own negligent acts, which is not the case here. Ex. 1, Art. XIV (14.2).
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Answer, Semple Brown repeatedly refused to admit or deny allegations stating that “The Agreement speaks for itself.” Answer and Jury Demand to the Third Party Complaint and Jury Demand, ¶¶ 6-11 and 25 (Docket No. 116). Because Semple Brown has admitted that the language of the Design Services Agreement “speaks for itself,” it is not necessary to consider any matters outside of the contract to interpret it. Federal Leasing, Inc. v. Amperif Corp., 840 F.Supp. 1068, 1075 n.12 (Md.1993) (no ambiguity found and no outside material required for contract interpretation of agreement that “speaks for itself”).
8. Semple Brown cites four cases for its position that Colorado does not follow the Complaint Rule as to the duty to defend. Ironically, three of the cases are not even from Colorado courts (Rodriguez,2 Heppler (discussed below), and Tateosian (discussed below). Response at 8-11.
9. Semple Brown argues at length that the Colorado Court of Appeals rejected the “Complaint Rule” as it relates to the duty to defend, citing D.R. Horton v. D&S Landscaping, LLC, 2008 WL 2522232 (Colo.App.) (opinion not released for publication in permanent law reports). Semple Brown argues that the Horton court: 1) “did not elect to treat the duty to defend as distinct from the duty to indemnify”, 2) “nor did it impose a duty to defend upon the subcontractor,”; and 3) “declined to follow the broad duty to defend rule employed in the insurance context.” Response at 9-10. The Horton opinion does not have the meaning Semple Brown ascribes to it. The Court of Appeals was never asked, nor did it opine, as to the meaning of the duty to defend in that particular contract,
2 Rodriguez v. Savoy Boro Park, 759 NYS2d 107 (NYAD2Dept.2003) (in that particular contract under New York law, a subcontractor’s duty to defend was no broader than its duty to indemnify).
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which language is different than that now before this Court. The issue of defense of any underlying claim was not raised by any party and was not before the court. As a result, the Horton court made no ruling on the “duty to defend” as it had not been asked to enforce that part of the contract. Instead, the court laid out (in its Background section (id. at I.)) the only issues before the court. They clearly do not include the meaning of the “duty to defend”. The court only addressed indemnity issues—not defense. The decision rested on the lack of evidence of an obligation to indemnify. As the Horton court said, “central” to its ruling (id. at III.) was the fact that the indemnitee’s Rule 30(b)(6) witness “did not have knowledge about the matters relating to the claims” but instead referred to former employees whose whereabouts were known to Horton. Horton had made no effort to obtain these witnesses to either testify as to the Rule 30(b)(6) issues, or to inform the Horton Rule 30(b)(6) witness of the information. The court criticized Horton for proceeding to deposition with an unprepared and unknowledgeable witness and then refused to overturn the lower court’s decision which relied on such witness’ testimony for its finding against Horton of lack of an indemnification obligation (id. at III and IV). In contrast, the issue before this Court is whether or not there are sufficient allegations in the Plaintiffs’ Complaint to trigger Semple Brown’s duty to defend.
10. Semple Brown’s reliance on Tateosian v. State of Vermont, 945 A.2d 833 (Vt.2007) is misplaced. There the court found that the underlying complaint did not trigger the duty to defend or indemnify because the indemnitee (the State of Vermont) did not allege any negligence by the indemnitor, which allegation if made could have triggered the duty to defend and indemnify, depending on the particular language of the agreement. The Tateosian court found the language of the contract ambiguous. The
6

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court refused to find any defense or indemnification obligation where the indemnitee admitted that it was solely at fault. (Here the contract makes the City liable for its own negligence as to the indemnification obligation). The Tateosian court agreed that the duty to defend issue must be resolved at the outset of a case, just like in the insurance context. The court also held that the language of the contract must be interpreted to give effect to the parties’ intent as expressed in their writing. The court expressly identified several other cases in which courts hold that the contract duties stemming from contractual indemnity do not differ from those involved in insurance law. See, e.g., Pancakes of Hawaii, Inc. v. Pomare Props. Corp., 85 Hawai‘i 286, 944 P.2d 83, 88-89 (Ct.App.1997) (holding that in contractual duty-to-defend cases, as in insurance cases, the duty to defend must be determined at the beginning of the suit on the pleadings); St. Paul Fire & Marine Ins. Co. v. Crosetti Bros., Inc., 256 Or. 576, 475 P.2d 69, 71 (1970) (noting that defendant's contractual duty to defend was identical to that of an insurer); English v. BGP Int'l, Inc., 174 S.W.3d 366, 372 n. 6 (Tex.Ct.App.2005) (concluding that an indemnitor's contractual promise to defend involves same principles as insurer's duty to defend). See also Federal Leasing, Inc. v. Amperif Corp., 840 F.Supp. 1068, 1074 (Md.1993) (contractor had unambiguous duty to defend under non-insurance contract and failed to create a genuine issue of material fact which would preclude summary judgment on the duty to defend).
11. Semple Brown ineffectively cites May Dep’t Stores Co. v. University Hills, Inc., 824 P.2d 100 (Colo.App.1991) to argue its position that its duty to defend the City against Plaintiffs’ claims does not arise until there is a judgment in a lawsuit between the City and Semple Brown holding the latter liable for negligence. Semple Brown further
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argues that the case holds that ambiguous provisions are to be construed against the party seeking indemnity. Response at 6, 7. The May case does not support either position. The case does not address a duty to defend. It only holds that the duty to indemnify is not excused simply because there is an allegation that the indemnitee may have been at fault. The May court further holds, consistent with the City’s position here, that interpretation of the agreement must be determined from the contract itself, that it must be enforced according to the plain and generally accepted meaning of its language, and that it must be interpreted to give effect to all of its provisions so that none are rendered meaningless. May at 824 P.2d 100, 101.
12. Semple Brown takes the position (citing Stegall v. Little Johnson Associates, Ltd., 996 F.2d 1043 (10thCir.1993) that whether or not an indemnity provision includes a duty to defend is a question of fact precluding summary judgment. Response at page 7, n.1. Again, that is not what the case says. It instead holds that the determination of whether or not a contract is ambiguous is a question of law for the court, and only if the court determines that the contract is ambiguous and depends on extrinsic evidence, does the interpretation of the contract become a question of fact.
The determination whether a contract is ambiguous is a question of law. [cites omitted]. If the court determines a contract is ambiguous and its construction depends on extrinsic evidence, then interpretation of the contract becomes a question of fact. 996 F.2d at 1048. 13. Semple Brown further asserts in its Response at 5, 7 that to the extent that there are ambiguities in an indemnity agreement, they are to be resolved against the party seeking indemnity, citing Williams v. White Mountain Construction Co., Inc., 749 P.2d 423, 426 (Colo.1988). Semple Brown then insinuates that the duty to defend should likewise be construed against the party seeking the defense. That is not what the case
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holds. It does not even address a duty to defend. Williams addresses only the issue of whether there was an oral indemnity agreement. Williams in fact limits the interpretation against the party seeking indemnification to cases in which that party would be held completely harmless for its own negligent acts, which is not the case here. Ex. 1, Art. XIV (14.2) (“Design Consultant need not indemnify the City or its officers, agent and employees from damages proximately caused by and apportioned to the negligence of the City’s officers, agents and employees.”). Similarly, Heppler, a California case (Response at 5, 8), does not even address the issue of “duty to defend” language in a contract but only deals with the later arising issue of indemnification. Heppler v. J.M. Peters, Cal.Rptr. 2d 497 (Cal. App.4 Dist.1999).
C. The Springer Affidavit and Exhibits 1. The Court should not consider the Springer affidavit (Exhibit A) and Exhibit B because the contract is not ambiguous, as discussed above in Section B. When a contract is not ambiguous, its meaning (including the duties to defend and provide expert witnesses) can and must be made from the four corners of the contract itself. 2. Further, Exhibits A and B refer only to events that occurred more than a year after the Design Services Agreement was executed in 2002 and so cannot shed light on the intention of the parties at the time they executed the contract. As such, they are irrelevant to this motion. 3. However, if the Court is to consider the Springer affidavit and exhibits, they actually support a finding of liability against Semple Brown for design errors and omissions in connection with this case. 4. The affidavit admits that Semple Brown was responsible for designing the
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elevator, which is only one of the many alleged design defects in this litigation. 5. Exhibit B states that the request for administrative modification was made by and
approved by Semple Brown and Rolf Jensen (a subconsultant working under its direction). Exhibit B: cover page (“Prepared for Semple Brown Design PC”); signature page (“Request for Administrative Modification for Fire Protection and Life Safety Requirements for Newton Auditorium-Prepared by Rolf Jenson and Associates, Architect of Record Approval: Semple Brown Design Architects.
6. As Exhibit B shows, the modification sought by Semple Brown and its subconsultant did not modify any federal requirements under the Americans with Disabilities Act but instead requested modifications of requirements of local laws for fire safety and life safety, the only subject over which the City would have any authority. The City could not and did not agree to a modification to violate federal laws. As described in the City’s opening brief, it was Semple Brown’s job to know the design laws and requirements and to assure that all design related laws were complied with in its design work and that of the subconsultants it hired, including federal, state and local laws. See Exhibits 3 and 4.
7. The affidavit also states that Semple Brown did not construct the facility and opines that the building was not constructed as designed. These assertions ignore Semple Brown’s design and construction administration responsibilities under the contract as set forth in Exhibit 3, which makes Semple Brown the City’s representative in this arena and requires that Semple Brown monitor for construction defects and all other noncompliance, and to formally inform the City of its findings. See Exhibits 3 and 4.
8. Semple Brown has not submitted evidence that shows it advised the City at the
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required time that the work by the construction company violated the terms of the Americans with Disabilities Act or any other laws. Having failed to do so, this becomes just another example of Semple Brown’s negligence, errors and omissions, which make it responsible for providing a defense as well as experts to refute Plaintiffs’ allegations as part of the defense, and indemnification.
D. Mayor’s Committee for People with Disabilities, Dept. of Public Works, Etc. 1. At page 12 of its Response, Semple Brown argues that it is not liable for alleged design defects because of contract obligations relating to the Mayor’s Committee for People with Disabilities and Denver’s Dept. of Public Works. The argument won’t stand up. 2. The actual text shows that the Design Consultant was only required to “coordinate with” these agencies [Ex.1, Art. I(1.8)] and to allow for a “courtesy review.” The contract expressly states that such agency contact shall not “relieve the Design Consultant of its obligation to comply with all applicable codes, regulations and other requirements in performing hereunder.” [Ex. 1, Art. IV (4.4)].
E. Conclusion For these reasons, Denver requests partial summary judgment on its Third Party Complaint against Semple Brown, i.e. a declaration that under the 2002 Design Services Agreement Semple Brown had and has a duty to defend the City in this lawsuit. [Ex. 1, Art. XIV (14.2)]. Further, as part of that defense obligation, the court should declare that Semple Brown is required to provide all professional services necessary to defend the Plaintiffs’ claims against the City which relate to alleged errors and omissions of Semple Brown or its subconsultants, without additional compensation. [Ex. 1, Art. II (2.2.8)].
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Respectfully submitted,
/s/ Debra R. Knapp Mary E. Toornman Debra R. Knapp Robert G. Wheeler Denver City Attorney’s Office Municipal Operations 201 W. Colfax Ave. #1207 Denver, CO 80202 720-913-3275
Attorneys for City and County of Denver
CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2008, I electronically filed the foregoing REPLY IN SUPPORT OF CITY AND COUNTY OF DENVER’S MOTION FOR PARTIAL SUMMARY JUDGMENT via CM/ECF which will send notification of such filing to the following:
Amy Robertson and Timothy P. Fox, Fox & Robertson, P.C. 910 16th Street, Suite 610, Denver, CO 80202 Email: arob@foxrob.com Email: tfox@foxrob.com
Kevin W. Williams, Legal Program Director, Colorado Cross-Disability Coalition 655 Broadway, Suite 775, Denver, CO 80203 Email: kwilliams@ccdconline.org
Timothy M. Schulte and Andrew S. Ford, Jackson Kelly, PLLC-Denver 1099 18th Street, Suite 2150, Denver, CO 80202 Email: tmschulte@jacksonkelly.com Email: asford@jacksonkelly.com
Elizabeth Starrs and Elizabeth Hyatt, Starrs Mihm & Pulkrabek LLP 404 17th St., Suite 2600, Denver, CO 80202 Email: ehyatt@starrslaw.com Email: estarrs@starrslaw.com
/s/ Heather Woods City Attorney’s Office
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 Case 1:06-cv-00865-MSK-BNB Document 157-2 Filed 10/03/2008 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-MSK-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, Plaintiffs, and LAURA HERSHEY, CARRIE ANN LUCAS, and DANIEL WILSON, Plaintiffs, on behalf of themselves and a class of similarly situation persons, v. THE CITY AND COUNTY OF DENVER, COLORADO, Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C., Third Party Defendant.
PLAINTIFFS’ FOURTH AMENDED AND SUPPLEMENTAL CLASS ACTION COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Laura Hershey, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Asiza Carolyn Kolene Lucas and Daniel Wilson, by and through their attorneys, Kevin W. Williams, Legal Program Director

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of the Colorado Cross-Disability Coalition, and Fox & Robertson, P.C., hereby submit their Fourth Amended and Supplemental Complaint for violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (the “ADA”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-601 et seq. (“CADA”).
JURISDICTION 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 3. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies. 4. Plaintiff Laura Hershey is and was at all times material hereto a resident of Colorado residing in this district. Ms. Hershey is substantially limited in several major life activities, including walking and breathing, and requires the use of a motorized wheelchair for mobility. Laura Hershey is a CCDC member. 5. Plaintiff Carrie Ann Lucas is and was at all times material hereto a resident of Colorado residing in this district. Ms. Lucas is substantially limited in several major life activities, including walking, hearing, breathing and seeing. She requires the use of a motorized
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wheelchair for mobility, sign language interpreters for effective communication and screen enhancement software for reading. Carrie Lucas is a CCDC member.
6. Plaintiff Heather Rebekah Renee Lucas is substantially impaired in several major life activities, including walking, speaking, seeing and hearing, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is seventeen years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Heather Rebekah Renee Lucas is a CCDC member.
7. Plaintiff Adrianne Emily Monique Lucas is substantially impaired in several major life activities, including walking and speaking, and requires the use of a wheelchair for mobility. At all times material hereto, Miss Lucas was a resident of Colorado. She is eight years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Adrianne Emily Monique Lucas is a CCDC member.
8. Plaintiff Asiza Carolyn Kolene Lucas is substantially impaired in several major life activities because she has a developmental disability, anxiety disorder and Tourette’s Syndrome. At all times material hereto, Miss Lucas was a resident of Colorado. She is twelve years old and participates in this lawsuit by and through her parent and next friend, her mother Carrie Ann Lucas. Plaintiff Asiza Carolyn Kolene Lucas is a CCDC member.
9. Plaintiff Daniel Wilson is and was at all times material hereto a resident of Colorado residing at 3700 East Jewel Avenue, Denver, Colorado 80210. Mr. Wilson is substantially limited in the major life activity of walking, and requires the use of a motorized scooter for mobility. Daniel Wilson is a CCDC member.
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10. Defendant City and County of Denver (“City”) owns, operates and leases to others the Ellie Caulkins Opera House (the “Opera House”).
CLASS ACTION ALLEGATIONS 11. Plaintiffs Carrie Ann Lucas, Laura Hershey, and Daniel Wilson seek to maintain this action as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class consists of all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House. 12. The class identified in Paragraph 11 is so numerous, and the class members are difficult or impossible to identify, making joinder of all members impracticable. 13. There are numerous questions of law and fact common to the class, including without limitation, the following:
a. Whether the City in its operation of the Opera House excludes individuals with disabilities from participation in or denies those individuals the benefits of the services, programs, or activities of the Opera House or subjects such individuals to discrimination in violation of the ADA and Rehabilitation Act.
b. Whether the Opera House complies with the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. pt. 36, app. A. -4-

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c. What measures are legally required to bring the Opera House into compliance with the ADAAG.
d. Whether the Opera House is a “place of public accommodation” as that term is used in Colo. Rev. Stat. § 24-34-601(1).
e. Whether the City refuses, withholds from or denies individuals with disabilities the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Opera House in violation of Colo. Rev. Stat. § 24-34-601(2).
14. The claims of Carrie Ann Lucas, Laura Hershey, and Daniel Wilson are typical of the claims of the members of the class. They – like all other members of the class – use wheelchairs or scooters for mobility and claim the City has violated the ADA, the Rehabilitation Act and the CADA by failing to make the Opera House accessible to people who use wheelchairs.
15. Plaintiffs Carrie Ann Lucas, Laura Hershey, and Daniel Wilson will fairly and adequately protect the interests of the class because they have retained counsel with extensive experience in litigation, including class action litigation. In addition, Plaintiffs’ counsel Kevin Williams is thoroughly familiar with issues concerning people who use wheelchairs because he is a tetraplegic, and has used a wheelchair for over 20 years. Finally, Plaintiffs Carrie Ann Lucas, Laura Hershey, and Daniel Wilson have no interests that conflict in any way with those of the class.
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16. This action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because the City’s violations of the ADA, the Rehabilitation Act and the CADA are applicable to all members of the class. Therefore, an injunction requiring compliance with the ADA, the Rehabilitation Act and the CADA is appropriate, and this injunctive relief is the only relief sought on behalf of the class.
GENERAL ALLEGATIONS 17. The Opera House was designed and constructed in 2004-2005 and opened its doors to the public in or about October of 2005. 18. The Opera House is housed inside the Quigg Newton Denver Municipal Auditorium (“Auditorium”). The entire inside of the Auditorium was completely renovated and reconstructed. Only the exterior shell of the Auditorium remains. 19. The Opera House was built with and continues to have a number of discriminatory design defects, including but not limited to those described below. 20. Accessible seats in the orchestra section are below the level of the main lobby. To access these seats, the Opera House requires patrons who use wheelchairs to use tiny residential elevators – not lifts; not commercial elevators – that carry only one passenger at a time, malfunction often, and move slowly. These factors, especially in combination, often make it impossible for patrons who use wheelchairs to get to their seats before the beginning of a show or to use the restroom or have a snack at intermission. 21. The residential elevators do not comply with the provisions of the Department of Justice Standards for Accessible Design, 28 C.F.R. pt 36, app. A (“Standards”) governing
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elevators, as -- among other things -- their internal dimensions are far less than the required 54 inches by 68 inches. See id. § 4.10.9 & Fig. 22; see also generally id. § 4.10.
22. Because the residential elevators are elevators, not lifts, the fact that they fail to comply with § 4.10 of the Standards is sufficient to demonstrate that they are in violation of the Standards and thus Title II of the ADA. Assuming, arguendo, that the residential elevators could be analyzed as lifts, they also fail to comply with the provisions of the Standards governing lifts.
23. Under the Standards, lifts are requires to comply with the American Society of Mechanical Engineers A17.1 Safety Code for Elevators and Escalators, Section XX, 1990 (“ASME A17.1-1990”) as well as state and local codes. See Standards §§ 4.1.6(g), 4.11.2.
24. The residential elevator used by patrons who use wheelchairs to get to the Orchestra level does not comply with Section XX of the ASME A17.1-1990. That section applies to “Inclined Stairway Chairlifts and Inclined and Vertical Wheelchair Lifts;” it does not cover residential elevators.
25. In addition, Rule 2000.7a of ASME A17.1-1990 states that a lift may not “penetrate a floor.” The House Left residential elevator currently penetrates multiple floors to get from the Orchestra level at the bottom to the Mezzanine level at the top. In addition, both residential elevators penetrate the Main level floor to get from that level to the Orchestra level.
26. Rule 2000.10a of ASME A17.1-1990 requires that operation of the lift car be controlled by a key, and that “up” and “down” control switches at all stations shall be by means
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of a continuous pressure device. Neither is the case with the residential elevators used in the Opera House.
27. The fact that the residential elevators violate Section XX of ASME A17.1-1990 means that they violate Standards §§ 4.1.6(g) and 4.11.2, which incorporate that section by reference.
28. The residential elevators also fail to comply with the Denver Building Code. The applicable city building codes are the 1997 Uniform Building Code, Vol. 1, 2 and 3 (“UBC1997”), as amended and supplemented by the Amendments to the Building Code for the City and Count of Denver, 1999 edition (“DBC-1999”). See Ord. No. 263, §§ 2, 3 (1999).
29. In buildings such as the Opera House, the DBC requires at least one elevator serving each level, DBC-1999 § 1105.3.1.1, and requires that “[a]ll elevators shall be accessible,” id. § 1105.3.1.2.
30. The residential elevators do not comply with the applicable provisions governing elevators. See, e.g., UBC-1997 § 3003.4.7 (requiring car size that “shall allow for the turning of a wheelchair” and a minimum size of 68 inches by 54 inches).
31. Although the DBC permits “platform lifts” in lieu of elevators, see DBC-1999 § 1105.3.2, the residential elevators in the Opera House are not platform lifts.
32. The fact that the residential elevators violate the DBC-1999 means that they violate Standards § 4.1.6(g) which requires compliance with “state and local codes.”
33. At 33½ inches wide, the residential elevators are too narrow. As part of an accessible route, see Standards § 4.1.6(g), they are required to be at least 36 inches wide, id.
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§ 4.3.3. However, the 33½ inch width can only be remedied by removing the handrail in each residential elevator, which would render it noncompliant with Rule 2000.1a(7) of ASME 17.11990.
34. The residential elevators have accordion doors at either end that tend to trap a user’s feet in front, and parts of their wheelchairs, backpacks or other medical devices in the back. When this happens, the device grinds to halt, further delaying the patron in getting to his or her seat or, for example, to the restroom at intermission.
35. The residential elevators can be controlled only from the inside, but the size of the residential elevator makes it very difficult for a nondisabled person to accompany a patron in a power wheelchair. Individuals who do not have the ability to push buttons on their own – precisely those individuals most likely to use power chairs – cannot easily use the devices at all.
36. The use of a residential elevator in a commercial facility, in and of itself, is a design defect that, among other things, leads to repeated and predictable malfunctions, in violation of 28 C.F.R. § 35.133. This, in turn, leads to significant discrimination because, as described in greater detail herein, it prevents patrons with disabilities from enjoying benefits of the services, programs, or activities of the Opera House, in violation of 42 U.S.C. § 12132.
37. The lobbies of the residential elevators do not have sufficient maneuvering clearances, in violation of Standards § 4.13.6 and Fig. 25.
38. When it first opened, the Opera House had a number of designated accessible seats in the Orchestra section that were on a slope and were not level, in violation of Standards § 4.33.4.
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39. The Opera House provides some wheelchair seating locations that are segregated from their respective companion seats, in violation of Standards § 4.33.3.
40. Wheelchair seating is not sufficiently dispersed in the Opera House in violation of Standards § 4.33.3. For example, there are over 600 seats in the Orchestra level, but only four wheelchair accessible seats, below the one percent required by Standards § 4.1.6(19)(g).
41. Several of the restrooms in the Ellie were designed without adequate turning or maneuvering clearances. For example, several of the family restrooms are too narrow, in violation of section 4.22.3 of the Standards or have inadequate clearance at the main door or the door to the accessible stall, in violation of section 4.13.6 and Figure 25.
42. In the Kevin Taylor restaurant, several raised areas were designed and built into the (on information and belief) originally empty, level space, in violation of section 5.4 of the Standards. The bar has no lowered area, in violation of section 5.2. There are no accessible tables, in violation of sections 4.1.3(18), 4.32 and 5.1.
43. The areas adjacent to certain staircases lack detectible warnings. 44. A few of the examples of the discrimination that the Plaintiffs have suffered because of these discriminatory design defects and violations of the ADA are set forth below. 45. During a tour of the Opera House in the fall of 2005, one of the residential elevators malfunctioned, and Ms. Lucas was stuck in it for approximately fifteen minutes. 46. In or about October of 2005, Plaintiff Carrie Ann Lucas and two of her daughters, Heather and Adrianne, attended a performance of the ballet, “Sleeping Beauty” at the Opera House. It took at least twenty minutes for all three of them to use the residential elevator to
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access their seats in the orchestra level. When they arrived at their seats, the seating locations were not level and on a steep slope. During the performance, Ms. Lucas kept sliding out of her wheelchair. Adrianne Lucas was choking on the strap to hold her in her wheelchair because of the slope.
47. Ms. Lucas complained to a manager who attempted to have her and her children moved to wheelchair seats farther from the stage. Ms. Lucas, Heather, and Adrianne all have visual impairments, which require them to be close to the stage to see. They reserved seats close to the stage for this reason. The manager then tried to have them move to another seating section where they would be lined up in a row, each behind the other. Ms. Lucas would not have been able to attend to or communicate with her daughters and the seats they wanted Ms. Lucas and her daughters to move to did not have adequate maneuvering clearances to get in and out of the seats.
48. At intermission, Ms. Lucas and her daughters attempted to access one of the residential elevators. Ms. Lucas pressed the call button. Lights went off, but the device did not come. She tried seven times, but it did not come until an usher went up to retrieve it. This took approximately eight minutes. Ms. Lucas got in the residential elevator, waited for the doors to close, and pushed the button. The lights on the button inside the cab came on, but the elevator didn’t move. After several minutes all the button lights flashed, then the doors opened. Ms. Lucas decided to get out. Not wanting to be trapped in the elevator as she was before, Ms. Lucas decided to try the one on the other side.
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49. The route leading from one residential elevator to the other was not level, and Ms. Lucas’ wheelchair slid into the backs of the seats to her left (toward the stage) due to the excessive cross slope of the aisle.
50. The other residential elevator worked, but by the time Ms. Lucas and her daughters all got up to the main level, intermission was over, and there was no time to return. They left without seeing the second act.
51. In or about December of 2005, Ms. Lucas, Heather, and Adrianne attended a performance of “The Nutcracker” at the Opera House. They were not able sit in the wheelchair seats they purchased. The configuration of wheelchair seating was different from when she attended before and from the seating plan from which she chose her seats. There was no longer a route between the two residential elevators. There were seats blocking that route.
52. Ms. Lucas and her daughters did not attend performances of any other ballets during the 2005-2006 season because of the problems with the residential elevators.
53. In or about November of 2006, Ms. Lucas and her daughters attended a performance of the “Nutcracker” at the Opera House. Ms. Lucas, Heather and Adrianne were initially unable to access their seats because the vestibule between the residential elevator and their seats was filled with chairs. Ms. Lucas had to find an usher and convince the usher to remove the chairs so they could use the residential elevator.
54. In or about March of 2007, Ms. Lucas and two of her daughters attended a performance of “Where the Wild Things Are”. Ms. Lucas, Heather, and Adrianne were again unable to access their seats because the vestibule between the residential elevator and their seats
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was filled with chairs. Again, they had to get someone to move the chairs. When Ms. Lucas used the residential elevator to exit after the performance, the accordion doors caught and disconnected a piece of Ms. Lucas’ ventilator tubing.
55. Ms. Lucas and her daughters did not attend any other ballet performances during the 2006-2007 season because of the problems with the residential elevators.
56. In or about September of 2007, Ms. Lucas and two of her daughters, Adrianne and Asiza, attended a performance of “The Little Mermaid” at the Opera House. They purchased tickets in the Orchestra section, and thus were required to use the residential elevator to get to their seats. At intermission, Ms. Lucas started to take her daughter Asiza -- who does not use a wheelchair -- to the restroom. Ms. Lucas was forced to leave her other daughter, Adrianne, alone at her seat because the there would not have been time during intermission for both Ms. Lucas and Adrianne to use the residential elevator. Ms. Lucas and Asiza attempted to use the residential elevator together, which required Asiza to stand on the footrest of Ms. Lucas’s wheelchair. Although the usher instructed Ms. Lucas not to push any buttons until the door closed, Ms. Lucas is unable to reach the buttons when she is all the way inside the residential elevator. As a result, the usher also boarded the elevator in order to push the buttons once Ms. Lucas was in place. The usher managed to squeeze into the available space by hanging over the side of Ms. Lucas’ wheelchair. When the usher leaned over Ms. Lucas’s wheelchair, to push the buttons, she leaned on Ms. Lucas’s ventilator tubing, breaking the support arm. However, after the door closed and the usher hit the button, the residential elevator went nowhere. The usher
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then hit the alarm button and Ms. Lucas tried the emergency phone. While they were stuck, the phone never gave any indication that it had made a connection of any sort.
57. Eventually, all of the lights started flashing and the door opened, still on the Orchestra level where Ms. Lucas had boarded it. Asiza was scared and crying, but still needed to use the restroom. Because Ms. Lucas could not use the residential elevator, an usher agreed to accompany Asiza to the restroom. She was upset and crying when she returned.
58. When Ms. Lucas began using her Blackberry to take notes on what had happened, an usher approached her and told her that she could not have her Blackberry on. This was despite the fact that it was still intermission. Although Ms. Lucas could not get her name, another usher, Giselle, told Ms. Lucas that this was the assistant house manager. Giselle also told Ms. Lucas to turn off her Blackberry.
59. In or about November of 2005, Daniel Wilson purchased wheelchair and companion seating tickets for the opera “Carmen” at the Opera House. When Mr. Wilson and his companion arrived, they discovered their seats were separated by a pillar. Mr. Wilson did not want to sit separated from his companion. They were able to change seating locations and be able to sit next to each other because there was an unsold seat. When Mr. Wilson transferred from his scooter to a seat, and without Mr. Wilson’s permission, an employee took his scooter from him.
60. Mr. Wilson has been deterred from ordering tickets for wheelchair seats in the orchestra level because of the presence of the malfunctioning wheelchair residential elevators.
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61. Ms. Hershey, her mother and brother attended the opera “Carmen” at the Ellie Caulkins Opera House in or about November of 2005.
62. When she arrived, Ms. Hershey was unable to find the residential elevators to the orchestra level because of inadequate signage or usher assistance.
63. When she finally got to the residential elevator, Ms. Hershey could not access it because of the flow of patrons moving down the stairs.
64. When Ms. Hershey finally entered the residential elevator, it was cramped, and she could not operate the controls. Her brother was able to climb into the residential elevator with her, but there was very little room. Her mother took the stairs.
65. An usher in the orchestra level showed Ms. Hershey to where her ticketed seats were, but there was no Figaro system (screens that provide translation of the opera libretto) that she could see from her seating location. She asked for a manager. When the manager arrived, he said they were not in the wheelchair seating section, although Ms. Hershey’s tickets were for these seats, and the tickets had the word “accessible” printed on them. The manager suggested that they move to another set of accessible seats. Fortunately, these seats were not sold, and Ms. Hershey was able to sit with her family.
66. Ms. Hershey’s mother, who was seated in a companion seat, had difficulty seeing the Figaro screen from her companion seat.
67. Discriminatory design defects at the Opera House have included and/or continue to include, without limitation, the following:
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b. some wheelchair seating locations are separated from companion seats by pillars;
c. the orchestra level is not accessible to individuals who use wheelchairs via an elevator; instead, the only access to the orchestra level for individuals who use wheelchairs is via two residential elevators on either side of the orchestra level, which malfunction often and take too long to operate;
d. there is no accessible route connecting wheelchair seating locations to the residential elevators in the orchestra level;
e. the residential elevators will not accommodate some individuals who use wheelchairs and mobility devices, rendering the orchestra level inaccessible to them;
f. the residential elevators are difficult to operate and provide no instruction; g. the controls on the residential elevators are not operable by some
individuals who use wheelchairs or mobility devices; h. the residential elevators are difficult to find; on information and belief,
there is not appropriate signage to indicate to individuals who use wheelchairs or mobility devices where they are located; i. depending on the size of the wheelchair or mobility device, there is insufficient room in the residential elevator for any other passengers; j. the new residential elevators have malfunctioned repeatedly when CCDC members who use wheelchairs have attempted to use them;
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k. the residential elevators are difficult to enter for individuals who use wheelchairs, because one must turn around an obstruction to enter them and because of the pedestrian traffic flow on the stairs adjacent to the residential elevators;
l. the residential elevators are so slow that individuals who use wheelchairs cannot leave the orchestra level and return during intermissions before the performance begins;
m. wheelchair seats have been sold to individuals who use wheelchairs that have no captioning screens, known as “Figaros;”
n. individuals who use wheelchairs have had to change seating locations because they were sold “Accessible” seats that were not actually accessible;
o. companion seating in some wheelchair seating sections does not offer an equivalent view of the “Figaro” captioning screens;
p. the aisle leading to the front row of the orchestra level where wheelchair seating locations is designated is narrow, and there is no turn around space for an individual who uses a wheelchair;
q. people who use wheelchairs are unable to sit in the seats they have chosen and purchased;
r. the areas adjacent to staircases lack appropriate detectible warnings; s. restrooms were designed in violation of the Standards; and
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t. the Kevin Taylor restaurant was designed in violation of the Standards. 68. Laura Hershey has attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. Ms. Hershey has experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred Ms. Hershey from attending future performances until the ADA violations and design defects described herein are remedied. 69. Laura Hershey suffered damages as a result of Defendant’s conduct. 70. Carrie Ann Lucas and her daughters have attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. The Lucases have experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred the Lucases from attending future performances until the ADA violations and design defects described herein are remedied. 71. The Lucases suffered damages as a result of Defendant’s conduct. 72. Daniel Wilson has attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. Mr. Wilson has experienced discrimination including but not limited to that described herein. Defendant’s conduct has deterred Mr. Wilson from attending future performances until the ADA violations and design defects described herein are remedied. 73. Mr. Wilson suffered damages as a result of Defendant’s conduct.
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74. On information and belief, other CCDC members have attended performances at the Opera House and would like to attend future performances there if the ADA violations and design defects described herein are remedied. On information and belief, these other CCDC members have experienced discrimination similar to that described herein. On information and belief, Defendant’s conduct has deterred other CCDC members from attending future performances until the ADA violations and design defects described herein are resolved.
75. On information and belief, other CCDC members have suffered damages as a result of Defendant’s conduct.
76. Plaintiff CCDC has members who attend performances at the Opera House and who would like to attend performances at the Opera House.
77. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by public venues and theatres, like the Opera House.
78. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by Defendant’s violations of the laws cited herein.
79. Defendant’s actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
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80. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with the City in an attempt to secure non-discriminatory conditions at the Opera House.
81. Defendant’s discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities.
82. Defendant’s discrimination described herein deter some persons with disabilities from attending events at the Opera House.
83. Defendant’s discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
84. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendant.
85. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendant’s discriminatory conduct alleged in this Third Amended Complaint and will be redressed by the relief requested in it.
86. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendant’s discrimination.
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87. The elimination of discrimination, such as that of Defendant, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
88. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
89. Defendant acted intentionally or with reckless or callous indifference to the federally protected rights of others and/or with deliberate indifference to the strong likelihood that its acts would likely result in a violation of federally protected rights
FIRST CLAIM FOR RELIEF (Violation of the Americans with Disabilities Act) 90. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Fourth Amended Complaint as if fully set forth herein. 91. Title II of the ADA prohibits public entities from denying, on the basis of disability, the benefits of the services, programs, or activities of the public entity, or from subjecting persons with disabilities to discrimination. 42 U.S.C. § 12132. 92. The City and County of Denver is a public entity covered by the ADA. 42 U.S.C. § 12131(1). 93. Defendant has violated the ADA by denying Plaintiffs and members of the class the benefits of the services, programs, or activities of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein.
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94. Defendant’s violations of the ADA have harmed Plaintiffs and members of the class.
SECOND CLAIM FOR RELIEF (Violation of Rehabilitation Act)
95. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Fourth Amended Complaint as if fully set forth herein.
96. The Rehabilitation Act prohibits recipients of federal financial assistance from denying, on the basis of disability, the benefits provided by the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794.
97. On information and belief, Defendant receives federal financial assistance. 98. Defendant has violated the Rehabilitation Act by excluding Plaintiffs members of the class from the participation in, denying them the benefits of, and/or subjecting them to discrimination under the programs and/or activities of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein. 99. Defendant’s violations of the Rehabilitation Act have harmed Plaintiffs and members of the class.
THIRD CLAIM FOR RELIEF (Colorado Anti-Discrimination Act) 100. Plaintiffs reallege and incorporate by reference the allegations in the remainder of this Fourth Amended Complaint as if fully set forth herein.
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101. The Colorado Anti-Discrimination Act prohibits any public facility of any kind from denying an individual or a group on the basis of disability equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. Colo. Rev. Stat. § 24-34-601.
102. Defendant -- in its ownership and/or operation of the Opera House -- is a place of public accommodation as that term is defined in Colo. Rev. Stat. § 24-34-601(1).
103. The Colorado Anti-Discrimination Act is to be construed consistently with the ADA and other federal civil rights statutes. 3 Colo. Code. Reg. 708.60.1(c).
104. Defendant has violated the Colorado Anti-Discrimination Act by denying Plaintiffs and members of the class the full enjoyment of any of the accommodations, advantages, facilities, and/or privileges of the Opera House through actions that include but are not limited to the discriminatory design defects alleged herein.
105. Under the Colorado Anti-Discrimination Act, for every offense committed by each Defendant, each shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the persons aggrieved thereby. Colo. Rev. Stat. § 24-34-602.
106. Defendant’s violations of the Colorado Anti-Discrimination Act have harmed Plaintiffs and members of the class.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction; 2. That this Court certify the following class:
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all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House; 3. That this Court appoint Plaintiffs Carrie Ann Lucas, Laura Hershey, and Daniel Wilson as class representatives; 4. That this Court appoint Amy F Robertson and Kevin W. Williams as class counsel; 5. That this Court issue an injunction ordering Defendant bring the Opera House into compliance with the ADA, the Rehabilitation Act, and the Colorado Anti-Discrimination Act; 6. That this Court award compensatory damages to Named Plaintiffs; 7. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs; and 8. That this Court award such additional or alternative relief as may be just, proper and equitable.
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JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury.
Dated: October 3, 2008
Respectfully submitted,
/s Amy F. Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 3801 E. Florida Ave., Suite 400 Denver, CO 80210 Voice: 303.595.9700 TTY: 877.595.9706 Facsimile: 303.595.9705 E-mail: arob@foxrob.com
Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org
Address of Plaintiff Colorado Cross-Disability Coalition
655 Broadway, Suite 775 Denver, CO 80203
Address of Laura Hershey
4411 S. Washington St. Englewood, CO 80113
Address of Plaintiffs Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, and Asiza Carolyn Kolene Lucas
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Case 1:06-cv-00865-MSK-BNB Document 157-2 Filed 10/03/2008 Page 26 of 26 621 Locust St. Windsor, CO 80550 Address of Daniel James Wilson 3700 E. Jewell Avenue # 104 Denver, CO 80210
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 Case 1:06-cv-00865-MSK-BNB Document 158 Filed 10/03/2008 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-MSK-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant.
PLAINTIFFS’ UNOPPOSED MOTION FOR CLASS CERTIFICATION
Plaintiffs Laura Hershey, Carrie Ann Lucas, and Daniel Wilson (“Named Plaintiffs”), by and through their attorneys, hereby move for class certification.
INTRODUCTION Plaintiffs -- individuals who use wheelchairs and scooters, a family member, and the Colorado Cross Disability Coalition (“CCDC”) -- filed suit against Defendant/Third Party

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Plaintiff the City and County of Denver (the “City”), the owner and operator of the Ellie Caulkins Opera House (“Opera House”) alleging violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (the “ADA”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-601 et seq. (“CADA”) at the City-owned and operated Opera House. Plaintiffs allege that the Opera House contains certain barriers that prevent full use and enjoyment by individuals who use wheelchairs or scooters.
The parties have negotiated in good faith and reached a settlement which they have memorialized in a Class Action Settlement Agreement, preliminary approval of which is sought in a motion filed simultaneously with this one. As part of the settlement, the parties agreed that it would be appropriate to seek certification of a class action. As such, Plaintiffs respectfully request this Court to certify the following class
all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
ARGUMENT Class Certification is Appropriate in this Case A class should be certified if it meets the numerosity, commonality, typicality and adequate representation requirements of Rule 23(a) of the Federal Rules of Civil Procedure and also falls within one of the three subdivisions of Rule 23(b). The proposed class meets Rule 23(a) and certification is appropriate pursuant to Rule 23(b)(2).
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As an overview, numerous courts have certified classes of individuals with disabilities
challenging inaccessible architectural elements, equipment, or facilities.1
A. The Proposed Class Meets the Requirements of Rule 23(a).
Rule 23(a) requires that (1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the class. The proposed
class in the case at bar meets these requirements.
1 See, e.g., Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) (affirming certification of class of individuals with varying disabilities challenging barriers and policies at prison facilities in California); Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997) (affirming certification of a class of blind and mobility-impaired individuals challenging accessibility of polling places); Lucas v. Kmart Corp., Civil Action No. 99-cv-1923-JLK, 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) (certifying nationwide class of people who use wheelchairs challenging barriers and policies at 1,500 retail stores) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (certifying damages subclasses in seven states); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004) (certifying statewide class of people who use wheelchairs challenging barriers and policies at approximately 220 restaurants); Nat’l Org. on Disability v. Tartaglione, No. Civ. A. 01-1923, 2001 WL 1258089, at *5 (E.D.Pa. Oct. 22, 2001) (certifying class of blind and mobility-impaired individuals and organizations representing same challenging accessibility of voting machines and polling places); Access Now, Inc. v. AHM CGH, Inc., Case Number: 98-3004 CIV, 2000 WL 1809979, at *6 (S.D. Fla. Jul. 12, 2000) (certifying a class of individuals with all disabilities challenging barriers at a chain of health care facilities); Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 530 (S.D. Fla. 2000) (same); Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 363 (D. Colo. 1999) (certifying class of people who use wheelchairs challenging barriers at approximately 42 restaurants); Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996) (certifying class of deaf individuals challenging accessibility of municipal 911 and street alarm box system); Bacal v. Southeastern Pa. Transp. Auth., Civil Action No. 94-6497, 1995 WL 299029, at * 6 (E.D. Pa. May 16, 1995) (certifying class of individuals who use paratransit services challenging discrimination in the provision of such services); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 458 (N.D. Cal. 1994) (certifying statewide class of people who use wheelchairs challenging barriers at a chain of movie theaters).
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1. The Proposed Class Is So Numerous That Joinder Is Impracticable. Rule 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. There are a number of factors that are relevant to whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members and the ability of class members to institute individual lawsuits. Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 357 (D. Colo. 1999) (hereinafter “CCDC v. Taco Bell”); see also Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 461-62 (E.D. Pa. 1998); 1 Alba Conte and Herbert B. Newberg, Newberg on Class Actions (“Newberg”) § 3:6 (4th ed. 2008) (and cases cited therein). Each of these factors show that joinder is impracticable in the case at hand. The class is large. In determining class size, the exact number of potential members need not be shown. See, e.g., Joseph v. Gen. Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). Rather the court may make “common sense assumptions” to support a finding that joinder would be impracticable. Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996); see also 1 Newberg § 3:3 (and cases cited therein). “Census data are frequently relied on by courts in determining the size of proposed classes.” CCDC v. Taco Bell, 184 F.R.D. at 358. Here, both parties agree that the class is large. Census figures demonstrate that there are approximately 15,369 noninstitutionalized persons age 16 or older in Colorado who use wheelchairs. See Table 3, “Selected Population Characteristics for States and Counties Including Model-Based Estimates of the Prevalence of Specific Disabilities Among Persons 16 and Over,”
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Household Survey Data on Employment and Disability, June 26, 1996, United States Department of Commerce, Bureau of the Census at 3.2 This number does not include institutionalized persons who use wheelchairs, persons under the age of 16 who use wheelchairs, or persons who use scooters for mobility, all of whom are also members of the proposed class.
The proposed class is also geographically diverse. “The fact that a class is dispersed over several counties weighs in favor of a finding of numerosity.” CCDC v. Taco Bell, 184 F.R.D. at 358 (citation omitted). In the case at hand, the proposed class -- like the class in CCDC v. Taco Bell -- covers the entire state of Colorado and thus joinder would be difficult or impossible.
The class members are difficult to identify. Of particular import where, as here, the class consists of persons with disabilities impacted by architectural barriers, joinder is impracticable where it is very difficult to identify individual class members. See, e.g., id. at 358-59; 1 Newberg § 3:5 (and cases cited therein). In Arnold v. United Artists Theatre Circuit, Inc., for example, the court held that “by the very nature” of the class of persons with disabilities affected by the defendant’s architectural barriers, its members were “unknown” and could not be “readily identified” and thus joinder of class members was impracticable. 158 F.R.D. 439 (N.D. Cal.), modified, 158 F.R.D. 439, 448 (1994).
For these reasons, the class is so numerous that joinder is impracticable and thus satisfies Rule 23(a)(1).
2. The Class Members Share Common Questions of Law and Fact.
2 Available at http://www.census.gov/hhes/www/disability/census/tables/tab3us.html (last visited Oct. 1, 2008).
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Rule 23(a)(2) requires that there be questions of law or fact common to the class. This does not mean that every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory. Joseph, 109 F.R.D. at 639-40. “Where a class of persons sharing a common disability complain of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established.” CCDC v. Taco Bell, 184 F.R.D. at 359. As the court in Arnold stated:
Inadequate wheelchair accommodations at particular theaters are very likely to affect all wheelchair-users in the same way . . . Thus the state of such accommodations at defendant’s various theaters, and the legal adequacy of those accommodations, are issues of fact and law common to all those disabled persons affected by them. Id., 158 F.R.D. at 449. Similarly, Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004), challenged the accessibility of a number of architectural elements in a chain of restaurants. The court held, in certifying the class, that “the state of such elements at Defendant’s restaurants, and the legal adequacy of such elements, are issues of fact and law common to all class members.” Id. at 609; see also Lucas v. Kmart Corp., Civil Action No. 99-cv-1923-JLK, 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) & 2006 WL 722163, at *2 (D. Colo. Mar. 22, 2006) (holding that individuals who use wheelchairs challenging accessibility of Kmart stores nationwide shared common issues of law and fact). Like the classes certified in CCDC v. Taco Bell, Arnold, Moeller, and Lucas, the proposed class in this case shares many issues of fact and law: (1) the class complains of the same architectural barriers and practices; (2) Plaintiffs allege that by these architectural barriers and practices, Defendant discriminated against all members of the class; and (3) the
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determination of whether these barriers and practices violate the ADA, the Rehabilitation Act and the CADA is the same whether there is one plaintiff or a class of plaintiffs. Nor are there individual questions of law or fact. Thus the class meets the requirements of Rule 23(a)(2).
3. The Claims of Named Plaintiffs Are Typical of the Claims of the Class.
Rule 23(a)(3) requires that the claims asserted by the representative plaintiff be typical of the claims of the class. According to the Tenth Circuit, “the typicality requirement is ordinarily not argued. . . . It is to be recognized that there may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.” Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir. 1975).
In this case, the Named Plaintiffs and the members of the class have disabilities which, although not identical, require the use of a wheelchair or scooter for mobility. Thus, the effect of the disability is shared by all class members. Further, the representative plaintiffs contest the legality of architectural barriers under the same statutes as the class. [T]herefore . . . the claims of the representative plaintiffs are typical of the class. CCDC v. Taco Bell, 184 F.R.D. at 360; see also Lucas, 2005 WL 1648182, at * 3 (holding that where the focus of an ADA lawsuit is final injunctive relief against the defendant benefitting the class as a whole, “the prerequisites of commonality and typicality are met”); Arnold, 158 F.R.D. at 450 (“Indeed, in a public accommodations suit such as this one where disabled persons challenge the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”); Civic Ass’n of the Deaf, 915 F. Supp. at 633
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(Finding typicality where the representative plaintiffs, “like every other member of the proposed Class, are or represent deaf or hearing-impaired individuals. As a result of removal of the street alarm boxes, the members of the Class have had or will have impaired their ability to report fires from City streets.”).
The Named Plaintiffs in the case at bar, like the members of the proposed class, use a wheelchair or scooter for mobility (see Decl. of Carrie Ann Lucas ¶ 2; Decl. of Laura Hershey ¶ 2; Decl. of Daniel Wilson ¶ 2), allege the same form of discrimination as all class members, and bring claims identical to those of the class. Therefore the proposed class meets the typicality requirement of Rule 23(a)(3).
4. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
The final requirement of Rule 23(a), adequate representation, requires that the representative plaintiffs have common interests with the class members and that the representative plaintiffs vigorously prosecute the interests of the class through qualified counsel. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993). Adequate representation is usually presumed in the absence of contrary evidence. Id. (quoting 2 Newberg § 7.24 at 7-80 to 81).
Named Plaintiffs, like the members of the proposed class, seek redress for the architectural barriers and practices that discriminate against them and the class members. Thus the interests of Named Plaintiffs do not conflict with those of the class. In addition, Named Plaintiffs and their counsel have prosecuted the interests of the class vigorously. Named Plaintiffs have sought broad relief since the inception of the lawsuit and the City has been
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forthcoming in providing extensive discovery concerning the conditions at the Opera House. In many ways, this case has been litigated as a class action throughout.
Plaintiffs’ counsel are qualified to represent the class. Kevin Williams, who is the Legal Program Director of the Colorado Cross Disability Coalition, graduated third in his class from the University of Denver College of Law in 1996, has been published on the topic of the ADA, and was the Co-Chair of the Colorado Bar Association Disability Law Forum Committee. Mr. Williams has extensive experience litigating under the ADA and other civil rights legislation. (Decl. of Kevin W. Williams (“Williams Decl.”) ¶¶ 3-4.) Mr. Williams is thoroughly familiar with issues concerning people with disabilities because he is a tetraplegic and has used an electric wheelchair for over 20 years. (Williams Decl. ¶ 5.)
Amy Robertson, of the undersigned law firm of Fox & Robertson, graduated from Yale Law School in 1988. (Declaration of Amy F. Robertson (“Robertson Decl.”) ¶¶ 2-3.) After clerking for the Hon. Richard L. Williams of the United States District Court for the Eastern District of Virginia, Ms. Robertson worked in the litigation departments at the law firms of Dorsey & Whitney in Minneapolis, Wilmer, Cutler & Pickering in Washington, D.C., and Rothgerber, Appel, Powers & Johnson LLP in Denver. (Id. ¶¶ 3.) Ms. Robertson co-founded Fox & Robertson in 1996 and has litigated extensively under the ADA and other civil rights legislation since that time. (Id. ¶¶ 4-5.)
Fox & Robertson has been certified as class counsel in at least seven previous cases, including five cases before the District of Colorado in which Mr. Williams was also certified as class counsel. Commonwealth of Mass. v. E*TRADE Access, Inc., Civil Action No. 03-11206MEL (D. Mass. Dec. 7, 2007) (settlement class addressing accessibility to blind people of
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defendant’s automatic teller machines nationwide); Lucas v. Kmart, 99-cv-01923-JLK, 2005 WL 1648182 (D. Colo. Jul. 13, 2005) (certifying nationwide injunctive class addressing ADA violations in over 1,400 Kmart stores) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (certifying damages subclasses in seven states); Moeller, 220 F.R.D. 613-14 (certifying class addressing ADA violations at over 220 Taco Bell restaurants in California); Ehman v. Home Builders Ass’n of Denver, Civil Action No. 01-cv-01522-EWN-BNB (D. Colo. 2003) (addressing ADA violations at the Parade of Homes); CCDC v. Taco Bell, 184 F.R.D. at 363 (addressing ADA violations at over 40 Taco Bell restaurants in Colorado); Farrar-Kuhn v. Conoco, Inc., Civil Action No. 99-cv-2086-MSK (D. Colo.) (addressing ADA violations at approximately 120 service stations in approximately six states); Colo. Cross-Disability Coalition v. Fey Concert Company, Civil Action No. 97-cv-1586-ZLW (D. Colo.) (addressing ADA violations at a Denver concert venue). (Robertson Decl. ¶ 5; Williams Decl. ¶ 4.)
For the reasons set forth above, the proposed class satisfies the requirements of Rule 23(a).
B. The Proposed Class Is Proper Under Rule 23(b)(2). A class is proper under Rule 23(b)(2) if the party opposing the class “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . .” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Indeed, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (quoting Adv. Comm. Notes, 28 U.S.C. App., at 697). Cases such as this one “provide[ ] a paradigm for class
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certification under Rule 23(b)(2) . . ..” Lucas, 2005 WL 1648182, at * 2; see also Arnold, 158 F.R.D. at 452 (holding that classes of individuals with disabilities challenging architectural barriers are “paradigm[s] of the type of action for which the (b)(2) form was created”).
“A class action in which all members of the class complain of the identical architectural barrier necessarily involves acts that are generally applicable to the class.” CCDC v. Taco Bell, 184 F.R.D. at 361 (citing Arnold, 158 F.R.D. at 452, and Civic Ass’n of the Deaf, 915 F. Supp. at 634). Indeed, the Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”
In the case at bar, Plaintiffs allege that Defendant’s architectural barriers and practices discriminate against all persons who use wheelchairs and scooters and thus that Defendant has acted in a manner applicable to the entire class. Further, the members of the class are incapable of specific enumeration. Finally, Plaintiffs seek injunctive and declaratory relief -- but not monetary relief -- on behalf of the class. Therefore the class should be certified under Rule 23(b)(2).
CERTIFICATE REQUIRED BY LOCAL RULE 7.1(A) The undersigned certifies that she has conferred with counsel for the other parties to this matter and that they do not oppose this motion.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court:
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1. Certify the following class: all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
2. Certify Laura Hershey, Carrie Ann Lucas, and Daniel Wilson as class representatives; and
3. Certify Amy F. Robertson and Kevin W. Williams as class counsel.
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Dated: October 3, 2008

Respectfully submitted,
FOX & ROBERTSON, P.C.
s/ Amy Farr Robertson Amy F. Robertson Timothy P. Fox 3801 E. Florida Ave., Suite 400 Denver, CO 80210 Telephone: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Kevin W. Williams Colorado Cross Disability Coalition Legal Program Director 655 Broadway, Suite 775 Denver, CO 80203 Telephone: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on October 3, 2008, I electronically filed the foregoing document and associated declarations with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Elizabeth A. Starrs Elizabeth L. Smith Elizabeth J. Hyatt Starrs Mihm & Pulkrabek LLP 707 17th Street, Suite 2600 Denver, Colorado 80202 estarrs@starrslaw.com ehyatt@starrslaw.com booka.smith@starrslaw.com
Debra R. Knapp Mary E. Toornman Robert Griffin Wheeler Assistant City Attorneys City and County of Denver Department of Law 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 debra.knapp@denvergov.org mary.toornman@ci.denver.co.us robert.wheeler@denvergov.org

Timothy M. Schulte Andrew Scott Ford Jackson Kelly PLLC Suite 2150, 1099 18th Street Denver, Colorado 80202 tmschulte@jacksonkelly.com asford@jacksonkelly.com
Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 kwilliams@ccdconline.org

s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 3801 E. Florida Ave., Suite 400 Denver, CO 80210 Tel: 303.595.9700 Fax: 303.595.9705 Email: arob@foxrob.com

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 Case 1:06-cv-00865-MSK-BNB Document 158 Filed 10/03/2008 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-MSK-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant.
PLAINTIFFS’ UNOPPOSED MOTION FOR CLASS CERTIFICATION
Plaintiffs Laura Hershey, Carrie Ann Lucas, and Daniel Wilson (“Named Plaintiffs”), by and through their attorneys, hereby move for class certification.
INTRODUCTION Plaintiffs -- individuals who use wheelchairs and scooters, a family member, and the Colorado Cross Disability Coalition (“CCDC”) -- filed suit against Defendant/Third Party

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Plaintiff the City and County of Denver (the “City”), the owner and operator of the Ellie Caulkins Opera House (“Opera House”) alleging violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (the “ADA”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-601 et seq. (“CADA”) at the City-owned and operated Opera House. Plaintiffs allege that the Opera House contains certain barriers that prevent full use and enjoyment by individuals who use wheelchairs or scooters.
The parties have negotiated in good faith and reached a settlement which they have memorialized in a Class Action Settlement Agreement, preliminary approval of which is sought in a motion filed simultaneously with this one. As part of the settlement, the parties agreed that it would be appropriate to seek certification of a class action. As such, Plaintiffs respectfully request this Court to certify the following class
all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
ARGUMENT Class Certification is Appropriate in this Case A class should be certified if it meets the numerosity, commonality, typicality and adequate representation requirements of Rule 23(a) of the Federal Rules of Civil Procedure and also falls within one of the three subdivisions of Rule 23(b). The proposed class meets Rule 23(a) and certification is appropriate pursuant to Rule 23(b)(2).
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As an overview, numerous courts have certified classes of individuals with disabilities
challenging inaccessible architectural elements, equipment, or facilities.1
A. The Proposed Class Meets the Requirements of Rule 23(a).
Rule 23(a) requires that (1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the class. The proposed
class in the case at bar meets these requirements.
1 See, e.g., Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) (affirming certification of class of individuals with varying disabilities challenging barriers and policies at prison facilities in California); Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997) (affirming certification of a class of blind and mobility-impaired individuals challenging accessibility of polling places); Lucas v. Kmart Corp., Civil Action No. 99-cv-1923-JLK, 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) (certifying nationwide class of people who use wheelchairs challenging barriers and policies at 1,500 retail stores) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (certifying damages subclasses in seven states); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004) (certifying statewide class of people who use wheelchairs challenging barriers and policies at approximately 220 restaurants); Nat’l Org. on Disability v. Tartaglione, No. Civ. A. 01-1923, 2001 WL 1258089, at *5 (E.D.Pa. Oct. 22, 2001) (certifying class of blind and mobility-impaired individuals and organizations representing same challenging accessibility of voting machines and polling places); Access Now, Inc. v. AHM CGH, Inc., Case Number: 98-3004 CIV, 2000 WL 1809979, at *6 (S.D. Fla. Jul. 12, 2000) (certifying a class of individuals with all disabilities challenging barriers at a chain of health care facilities); Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 530 (S.D. Fla. 2000) (same); Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 363 (D. Colo. 1999) (certifying class of people who use wheelchairs challenging barriers at approximately 42 restaurants); Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996) (certifying class of deaf individuals challenging accessibility of municipal 911 and street alarm box system); Bacal v. Southeastern Pa. Transp. Auth., Civil Action No. 94-6497, 1995 WL 299029, at * 6 (E.D. Pa. May 16, 1995) (certifying class of individuals who use paratransit services challenging discrimination in the provision of such services); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 458 (N.D. Cal. 1994) (certifying statewide class of people who use wheelchairs challenging barriers at a chain of movie theaters).
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1. The Proposed Class Is So Numerous That Joinder Is Impracticable. Rule 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. There are a number of factors that are relevant to whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members and the ability of class members to institute individual lawsuits. Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 357 (D. Colo. 1999) (hereinafter “CCDC v. Taco Bell”); see also Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 461-62 (E.D. Pa. 1998); 1 Alba Conte and Herbert B. Newberg, Newberg on Class Actions (“Newberg”) § 3:6 (4th ed. 2008) (and cases cited therein). Each of these factors show that joinder is impracticable in the case at hand. The class is large. In determining class size, the exact number of potential members need not be shown. See, e.g., Joseph v. Gen. Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). Rather the court may make “common sense assumptions” to support a finding that joinder would be impracticable. Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996); see also 1 Newberg § 3:3 (and cases cited therein). “Census data are frequently relied on by courts in determining the size of proposed classes.” CCDC v. Taco Bell, 184 F.R.D. at 358. Here, both parties agree that the class is large. Census figures demonstrate that there are approximately 15,369 noninstitutionalized persons age 16 or older in Colorado who use wheelchairs. See Table 3, “Selected Population Characteristics for States and Counties Including Model-Based Estimates of the Prevalence of Specific Disabilities Among Persons 16 and Over,”
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Household Survey Data on Employment and Disability, June 26, 1996, United States Department of Commerce, Bureau of the Census at 3.2 This number does not include institutionalized persons who use wheelchairs, persons under the age of 16 who use wheelchairs, or persons who use scooters for mobility, all of whom are also members of the proposed class.
The proposed class is also geographically diverse. “The fact that a class is dispersed over several counties weighs in favor of a finding of numerosity.” CCDC v. Taco Bell, 184 F.R.D. at 358 (citation omitted). In the case at hand, the proposed class -- like the class in CCDC v. Taco Bell -- covers the entire state of Colorado and thus joinder would be difficult or impossible.
The class members are difficult to identify. Of particular import where, as here, the class consists of persons with disabilities impacted by architectural barriers, joinder is impracticable where it is very difficult to identify individual class members. See, e.g., id. at 358-59; 1 Newberg § 3:5 (and cases cited therein). In Arnold v. United Artists Theatre Circuit, Inc., for example, the court held that “by the very nature” of the class of persons with disabilities affected by the defendant’s architectural barriers, its members were “unknown” and could not be “readily identified” and thus joinder of class members was impracticable. 158 F.R.D. 439 (N.D. Cal.), modified, 158 F.R.D. 439, 448 (1994).
For these reasons, the class is so numerous that joinder is impracticable and thus satisfies Rule 23(a)(1).
2. The Class Members Share Common Questions of Law and Fact.
2 Available at http://www.census.gov/hhes/www/disability/census/tables/tab3us.html (last visited Oct. 1, 2008).
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Rule 23(a)(2) requires that there be questions of law or fact common to the class. This does not mean that every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory. Joseph, 109 F.R.D. at 639-40. “Where a class of persons sharing a common disability complain of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established.” CCDC v. Taco Bell, 184 F.R.D. at 359. As the court in Arnold stated:
Inadequate wheelchair accommodations at particular theaters are very likely to affect all wheelchair-users in the same way . . . Thus the state of such accommodations at defendant’s various theaters, and the legal adequacy of those accommodations, are issues of fact and law common to all those disabled persons affected by them. Id., 158 F.R.D. at 449. Similarly, Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004), challenged the accessibility of a number of architectural elements in a chain of restaurants. The court held, in certifying the class, that “the state of such elements at Defendant’s restaurants, and the legal adequacy of such elements, are issues of fact and law common to all class members.” Id. at 609; see also Lucas v. Kmart Corp., Civil Action No. 99-cv-1923-JLK, 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) & 2006 WL 722163, at *2 (D. Colo. Mar. 22, 2006) (holding that individuals who use wheelchairs challenging accessibility of Kmart stores nationwide shared common issues of law and fact). Like the classes certified in CCDC v. Taco Bell, Arnold, Moeller, and Lucas, the proposed class in this case shares many issues of fact and law: (1) the class complains of the same architectural barriers and practices; (2) Plaintiffs allege that by these architectural barriers and practices, Defendant discriminated against all members of the class; and (3) the
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determination of whether these barriers and practices violate the ADA, the Rehabilitation Act and the CADA is the same whether there is one plaintiff or a class of plaintiffs. Nor are there individual questions of law or fact. Thus the class meets the requirements of Rule 23(a)(2).
3. The Claims of Named Plaintiffs Are Typical of the Claims of the Class.
Rule 23(a)(3) requires that the claims asserted by the representative plaintiff be typical of the claims of the class. According to the Tenth Circuit, “the typicality requirement is ordinarily not argued. . . . It is to be recognized that there may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.” Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir. 1975).
In this case, the Named Plaintiffs and the members of the class have disabilities which, although not identical, require the use of a wheelchair or scooter for mobility. Thus, the effect of the disability is shared by all class members. Further, the representative plaintiffs contest the legality of architectural barriers under the same statutes as the class. [T]herefore . . . the claims of the representative plaintiffs are typical of the class. CCDC v. Taco Bell, 184 F.R.D. at 360; see also Lucas, 2005 WL 1648182, at * 3 (holding that where the focus of an ADA lawsuit is final injunctive relief against the defendant benefitting the class as a whole, “the prerequisites of commonality and typicality are met”); Arnold, 158 F.R.D. at 450 (“Indeed, in a public accommodations suit such as this one where disabled persons challenge the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”); Civic Ass’n of the Deaf, 915 F. Supp. at 633
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(Finding typicality where the representative plaintiffs, “like every other member of the proposed Class, are or represent deaf or hearing-impaired individuals. As a result of removal of the street alarm boxes, the members of the Class have had or will have impaired their ability to report fires from City streets.”).
The Named Plaintiffs in the case at bar, like the members of the proposed class, use a wheelchair or scooter for mobility (see Decl. of Carrie Ann Lucas ¶ 2; Decl. of Laura Hershey ¶ 2; Decl. of Daniel Wilson ¶ 2), allege the same form of discrimination as all class members, and bring claims identical to those of the class. Therefore the proposed class meets the typicality requirement of Rule 23(a)(3).
4. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
The final requirement of Rule 23(a), adequate representation, requires that the representative plaintiffs have common interests with the class members and that the representative plaintiffs vigorously prosecute the interests of the class through qualified counsel. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993). Adequate representation is usually presumed in the absence of contrary evidence. Id. (quoting 2 Newberg § 7.24 at 7-80 to 81).
Named Plaintiffs, like the members of the proposed class, seek redress for the architectural barriers and practices that discriminate against them and the class members. Thus the interests of Named Plaintiffs do not conflict with those of the class. In addition, Named Plaintiffs and their counsel have prosecuted the interests of the class vigorously. Named Plaintiffs have sought broad relief since the inception of the lawsuit and the City has been
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forthcoming in providing extensive discovery concerning the conditions at the Opera House. In many ways, this case has been litigated as a class action throughout.
Plaintiffs’ counsel are qualified to represent the class. Kevin Williams, who is the Legal Program Director of the Colorado Cross Disability Coalition, graduated third in his class from the University of Denver College of Law in 1996, has been published on the topic of the ADA, and was the Co-Chair of the Colorado Bar Association Disability Law Forum Committee. Mr. Williams has extensive experience litigating under the ADA and other civil rights legislation. (Decl. of Kevin W. Williams (“Williams Decl.”) ¶¶ 3-4.) Mr. Williams is thoroughly familiar with issues concerning people with disabilities because he is a tetraplegic and has used an electric wheelchair for over 20 years. (Williams Decl. ¶ 5.)
Amy Robertson, of the undersigned law firm of Fox & Robertson, graduated from Yale Law School in 1988. (Declaration of Amy F. Robertson (“Robertson Decl.”) ¶¶ 2-3.) After clerking for the Hon. Richard L. Williams of the United States District Court for the Eastern District of Virginia, Ms. Robertson worked in the litigation departments at the law firms of Dorsey & Whitney in Minneapolis, Wilmer, Cutler & Pickering in Washington, D.C., and Rothgerber, Appel, Powers & Johnson LLP in Denver. (Id. ¶¶ 3.) Ms. Robertson co-founded Fox & Robertson in 1996 and has litigated extensively under the ADA and other civil rights legislation since that time. (Id. ¶¶ 4-5.)
Fox & Robertson has been certified as class counsel in at least seven previous cases, including five cases before the District of Colorado in which Mr. Williams was also certified as class counsel. Commonwealth of Mass. v. E*TRADE Access, Inc., Civil Action No. 03-11206MEL (D. Mass. Dec. 7, 2007) (settlement class addressing accessibility to blind people of
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defendant’s automatic teller machines nationwide); Lucas v. Kmart, 99-cv-01923-JLK, 2005 WL 1648182 (D. Colo. Jul. 13, 2005) (certifying nationwide injunctive class addressing ADA violations in over 1,400 Kmart stores) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (certifying damages subclasses in seven states); Moeller, 220 F.R.D. 613-14 (certifying class addressing ADA violations at over 220 Taco Bell restaurants in California); Ehman v. Home Builders Ass’n of Denver, Civil Action No. 01-cv-01522-EWN-BNB (D. Colo. 2003) (addressing ADA violations at the Parade of Homes); CCDC v. Taco Bell, 184 F.R.D. at 363 (addressing ADA violations at over 40 Taco Bell restaurants in Colorado); Farrar-Kuhn v. Conoco, Inc., Civil Action No. 99-cv-2086-MSK (D. Colo.) (addressing ADA violations at approximately 120 service stations in approximately six states); Colo. Cross-Disability Coalition v. Fey Concert Company, Civil Action No. 97-cv-1586-ZLW (D. Colo.) (addressing ADA violations at a Denver concert venue). (Robertson Decl. ¶ 5; Williams Decl. ¶ 4.)
For the reasons set forth above, the proposed class satisfies the requirements of Rule 23(a).
B. The Proposed Class Is Proper Under Rule 23(b)(2). A class is proper under Rule 23(b)(2) if the party opposing the class “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . .” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Indeed, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (quoting Adv. Comm. Notes, 28 U.S.C. App., at 697). Cases such as this one “provide[ ] a paradigm for class
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certification under Rule 23(b)(2) . . ..” Lucas, 2005 WL 1648182, at * 2; see also Arnold, 158 F.R.D. at 452 (holding that classes of individuals with disabilities challenging architectural barriers are “paradigm[s] of the type of action for which the (b)(2) form was created”).
“A class action in which all members of the class complain of the identical architectural barrier necessarily involves acts that are generally applicable to the class.” CCDC v. Taco Bell, 184 F.R.D. at 361 (citing Arnold, 158 F.R.D. at 452, and Civic Ass’n of the Deaf, 915 F. Supp. at 634). Indeed, the Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”
In the case at bar, Plaintiffs allege that Defendant’s architectural barriers and practices discriminate against all persons who use wheelchairs and scooters and thus that Defendant has acted in a manner applicable to the entire class. Further, the members of the class are incapable of specific enumeration. Finally, Plaintiffs seek injunctive and declaratory relief -- but not monetary relief -- on behalf of the class. Therefore the class should be certified under Rule 23(b)(2).
CERTIFICATE REQUIRED BY LOCAL RULE 7.1(A) The undersigned certifies that she has conferred with counsel for the other parties to this matter and that they do not oppose this motion.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court:
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1. Certify the following class: all persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
2. Certify Laura Hershey, Carrie Ann Lucas, and Daniel Wilson as class representatives; and
3. Certify Amy F. Robertson and Kevin W. Williams as class counsel.
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Dated: October 3, 2008

Respectfully submitted,
FOX & ROBERTSON, P.C.
s/ Amy Farr Robertson Amy F. Robertson Timothy P. Fox 3801 E. Florida Ave., Suite 400 Denver, CO 80210 Telephone: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Kevin W. Williams Colorado Cross Disability Coalition Legal Program Director 655 Broadway, Suite 775 Denver, CO 80203 Telephone: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on October 3, 2008, I electronically filed the foregoing document and associated declarations with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Elizabeth A. Starrs Elizabeth L. Smith Elizabeth J. Hyatt Starrs Mihm & Pulkrabek LLP 707 17th Street, Suite 2600 Denver, Colorado 80202 estarrs@starrslaw.com ehyatt@starrslaw.com booka.smith@starrslaw.com
Debra R. Knapp Mary E. Toornman Robert Griffin Wheeler Assistant City Attorneys City and County of Denver Department of Law 201 West Colfax Ave., Dept. 1207 Denver, CO 80202 debra.knapp@denvergov.org mary.toornman@ci.denver.co.us robert.wheeler@denvergov.org

Timothy M. Schulte Andrew Scott Ford Jackson Kelly PLLC Suite 2150, 1099 18th Street Denver, Colorado 80202 tmschulte@jacksonkelly.com asford@jacksonkelly.com
Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 kwilliams@ccdconline.org

s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 3801 E. Florida Ave., Suite 400 Denver, CO 80210 Tel: 303.595.9700 Fax: 303.595.9705 Email: arob@foxrob.com

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 Case 1:06-cv-00865-MSK-BNB Document 159-2 Filed 10/03/2008 Page 1 of 37
Exhibit 1

Case 1:06-cv-00865-MSK-BNB Document 159-2 Filed 10/03/2008 Page 2 of 37

CLASS ACTION SETTLEMENT AGREEMENT

This Class Action Settlement Agreement (“Agreement”) is made this ______ day of _________________, 2008, by:

1.

The Colorado Cross-Disability Coalition, Laura Hershey, Carrie Ann Lucas,

Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Asiza Carolyn Kolene Lucas,

and Daniel Wilson (“Named Plaintiffs”); and

2.

The City and County of Denver, Colorado (“Defendant”).

Named Plaintiffs and Defendant are parties in a civil action filed in the U.S. District Court for Colorado under Civil Action No. 06-CV-00865-MSK-BNB (the “Lawsuit”).

The parties desire to settle the claims asserted in the Lawsuit and to enter into various agreements related to the Lawsuit and the claims giving rise thereto, in accordance with the provisions and upon the terms and conditions hereafter set forth.

Defendant has denied and continues to deny any and all liability or wrongdoing to Named Plaintiffs and to the Settlement Class. By entering into this Agreement, Defendant does not admit any impropriety, wrongdoing or liability of any kind whatsoever, including any as to the claims raised in the Lawsuit, and on the contrary, expressly denies the same. Defendant has entered into this Agreement solely for the purpose of avoiding the expense, inconvenience, distraction and delay of the Lawsuit, without admitting any wrongdoing or liability whatsoever.

I. CONDITIONS PRECEDENT: This Agreement shall be conditioned upon and shall be effective only upon, the occurrence of all of the following events:

A. Class Counsel and Defendant move jointly by stipulation for an Order granting preliminary approval of this Agreement and issuance of notice in accordance with Paragraph VII of this Agreement and such motion is granted by the Court.

B. Notice to the Settlement Class in accordance with Paragraph VII of this Agreement.

C. A Fairness Hearing held in accordance with Paragraph VII of this Agreement.

D. Final approval of this Agreement by the Court following a fairness hearing.

II. DEFINITIONS

A. “Accessible Seating Locations” means areas that comply with Section 4.33.2 of the Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, App. A.

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B. “Class Counsel” means Fox & Robertson, P.C. and the Legal Program of the Colorado Cross Disability Coalition.
C. “Opera House” means the Ellie Caulkins Opera House.
D. “Settlement Class” means all persons with disabilities as defined by the Americans with Disabilities Act including persons who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
III. REPAIRS AND ACCOMMODATIONS
Defendant has already or will make the following modifications to the Opera House.
A. Lifts
1. The City will install platform lifts on both the House Left and House Right side of the Opera House in accordance with Exhibit 1 hereto.
2. The City will limit the House Left platform lift to travel between the lobby and the Orchestra.
B. Lift Lobbies: With respect to the doors to the lift lobbies on both the House Left and House Right sides, at both the main and Orchestra seating levels, the City will either
1. install automatic door openers; or
2. if it is approved by the Fire Marshal without request for variance, install a magnet system that would hold the vestibule entry doors open at all times unless the fire alarm is set off.
C. Accessible Seating Locations:
1. In addition to the accessible seats shown on page 1 of Exhibit 2, the City will install two additional Accessible Seating Locations with adjacent companion seats in the Orchestra.
2. Seating in the rest of the Opera House will be as set forth in the seating charts in Exhibit 2 hereto.
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D. Signage: The City will install signage informing patrons of the locations of seats with folding arm rests and signage at the ticket office indicating the availability of those seats.
E. Restrooms: 1. Lobby Level Family Restroom: The City will relocate or restructure the toilet room walls of the family restroom on the main level to ensure 60 inch turning radius. 2. In each of the following restrooms, the City will reverse the swing of the door on the accessible stall to ensure 18 inches of maneuvering clearance to the latch side of the door. a. Men’s house right mezzanine; b. Women’s house right mezzanine; c. Men’s house right loge; d. Women’s house right loge; e. Men’s house right balcony; f. Women’s house right balcony; 3. In each of the following restrooms, the City will move the wing wall outside the door to ensure 18 inches of maneuvering clearance to the latch side of the door, except in the basement where an electric door opener(s) may be used instead at the option of the City. a. Family restroom house left main; b. Family restroom house left basement; c. Men’s house right basement; and d. Family restroom house left mezzanine. 4. In each of the following restrooms, the City will install a compliant toilet paper dispenser: a. Men’s house left basement; and -3-

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b. Men’s house left loge.
F. Kevin Taylor Restaurant/Chambers-Grant Salon
1. The City will ensure that at least five percent of the seating positions at the tables in the Kevin Taylor Restaurant are accessible.
2. The City will ensure that the ramp to the raised area in the house left side of the Chambers Grant Salon is uncovered and available for use when that area is open to the public.
3. The City will install a fixed cane-detectable barrier no more than 27 inches above the floor at the main staircase to address low head room near the main elevator.
G. Policies
1. Before and after a performance and for the duration of each intermission, the City will assign an usher within sight of the upper and lower entrances to each platform lift to assist with the efficient use of the platform lifts.
2. Upon request of a patron using a wheelchair, an usher will accompany the patron in the lift or will accompany a child who is with an adult in a wheelchair.
3. If a platform lift malfunctions or is out of service for any reason, and a patron using a wheelchair sitting in the Orchestra section of the Opera House is thereby delayed in being seated and the patron so requests, ushers will permit such patrons to enter and be seated during a performance that is in progress. If a lift malfunction prevents a patron who uses a wheelchair from attending part or all of a performance, the City will use its best efforts to provide accessible tickets to the next available performance at no cost, and if no seats are available, will provide a full refund.
H. Deadline for Repairs and Accommodations: The City will take the actions described above on or before December 31, 2008.
I. Maintenance of access: Defendant will maintain the Opera House in the condition required by this Paragraph III.
IV. INSPECTION: Within thirty days of completion of the measures described above, the City will notify Class Counsel who will have an opportunity to inspect the measures
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within thirty days of being notified.
V. DAMAGES: The City disputes that any damages are available to Named Plaintiffs pursuant to the ADA. However, and without admitting any liability, the City will pay Named Plaintiffs the following amounts no later than thirty (30) days from final approval of this Agreement:
A. Laura Hershey: $1,500.00
B. Carrie Ann Lucas: $3,500.00
C. Heather Rebekah Renee Lucas: $1,500.00
D. Adrianne Emily Monique Lucas: $2,000.00
E. Asiza Carolyn Kolene Lucas $500.00.
F. Daniel Wilson $1,500.00
VI. ATTORNEYS’ FEES.
A. The City agrees to pay Plaintiffs’ reasonable attorneys’ fees and costs attributable to Plaintiffs’ pursuit of claims relating to the accessibility of the Opera House to individuals who use wheelchairs and scooters against Defendant The City and County of Denver plus a proportionate share of costs incurred by Plaintiffs pursuing other defendants that cannot be determined to pertain to any particular defendant.
B. The parties will negotiate in good faith to agree to Plaintiffs’ reasonable attorneys’ fees and costs. If the parties are able to agree on a proposed amount, Plaintiffs’ will not request a greater amount from the Court and Defendant will not oppose Plaintiffs’ fee request to the Court in that amount.
C. If the Parties are unable to agree on the amount of Plaintiffs’ reasonable attorneys’ fees and costs, Plaintiffs will submit the question to the Court simultaneously with the motion for final approval of the Agreement. The Parties agree that the amount requested by Plaintiffs will not exceed $330,000.
D. The City will pay any amount due pursuant to this provision within thirty (30) days of the date on which the Court determines Plaintiffs’ reasonable attorneys’ fees.
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VII. CONTINUANCE OF PENDING DEADLINES AND MOTIONS; MOTIONS TO AMEND, PRELIMINARY APPROVAL, OBJECTIONS AND FAIRNESS HEARING.
A. Within three (3) days of execution of this Agreement, the Parties will jointly request the Court to continue all pending deadlines and any motions unrelated to settlement.
B. On or before October 3, 2008:
1. Plaintiffs shall move, and Defendant shall not oppose motions, to amend the operative complaint to assert a class action and to certify the Settlement Class;
2. the Parties shall jointly move for an order granting preliminary approval to this Agreement; and
3. the Parties shall request that the Court set a hearing to address the motion to amend the complaint, the motion for class certification and the motion for preliminary approval.
C. The parties shall ask the Court to order the following procedures for objections: Any member of the Settlement Class may object to the proposed Agreement by filing, within one month after publication of the Notice, written objections with the Clerk of the Court. Only such objecting Class Members shall have the right, if they seek it in their objection, to present objections orally at the Fairness Hearing. Responses by Named Plaintiffs and Defendant to any timely-filed objections shall be made within two weeks after the deadline for such written objections.
D. Named Plaintiffs and Defendant shall request that a Fairness Hearing take place three months after publication of the Notice, or as soon thereafter as the Court may set the hearing.
E. No fewer than ten (10) days before the Fairness Hearing, the Parties shall respond to any objections and shall jointly move the Court for final approval of the Agreement.
VIII. NOTICE TO THE CLASS OF THE PROPOSED SETTLEMENT
A. Defendant shall place the Notice attached as Exhibit 3, at its own expense, in the Denver Post and the Rocky Mountain News. Said notice shall be published once in each newspaper and shall be at least one-eighth of a page in size. The notice shall appear within fifteen (15) days after Preliminary Approval of the
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Agreement. Defendant shall notify Plaintiffs of the day on which the Notice shall appear pursuant to this Paragraph and will send to Plaintiffs a copy of the Notice as published.
B. Within fifteen (15) days of Preliminary Approval, Defendant shall mail the Notice to the organizations listed in Exhibit 4.
IX. JUDGMENT, FINAL APPROVAL AND DISMISSAL.
A. At the time of the Fairness Hearing, the parties shall jointly request that the Court enter a Final Judgment and Order granting Final Approval of, and incorporating by reference, the terms of this Agreement and retaining jurisdiction to enforce such terms. The parties will request that this Final Judgment and Order be in the form of Exhibit 5 hereto.
B. This action shall be dismissed with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure, no later than one month following Final Approval.
X. RELEASES
A. Claims Released by Named Plaintiffs and the Settlement Class. Effective on the date of Final Approval of this Agreement, Named Plaintiffs, on behalf of themselves and all members of the Settlement Class and their executors, successors, heirs, assigns, agents and representatives, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge Defendant and its present, former or future directors, officers, shareholders, owners, managers, supervisors, employees, attorneys, insurers, agents, representatives, and contractors, including, but not limited to Semple Brown Design, P.C., PCL Construction Services, Inc.; and the respective successors, heirs, employees, attorneys, owners, insurers and assigns of the above from any and all actions, causes of action, claims, charges, demands, losses, judgments, liens, indebtedness and liabilities arising out of alleged accessibility problems at the Ellie Caulkins Opera House including but not limited to claims arising under Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, Colorado AntiDiscrimination Act, Colo. Rev. Stat. §24-34-601 et seq. for injunctive relief, declaratory relief, and any attendant costs and attorneys’ fees (except those provided in Paragraphs III and VI above), whether known or unknown, suspected or unsuspected, asserted or unasserted in the Lawsuit.
B. Claims Released by Named Plaintiffs but not by the Settlement Class. Effective on the date of Final Approval of this Agreement, Named Plaintiffs, on behalf of themselves and their executors, successors, heirs, assigns, agents and
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representatives, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge Defendant and its present, former or future directors, officers, shareholders, owners, managers, supervisors, employees, attorneys, insurers, agents, contractors including, but not limited to Semple Brown Design, P.C., PCL Construction Services, Inc.; and representatives; and the respective successors, heirs, employees, attorneys, owners, insurers and assigns of the above from any and all actions, causes of action, claims, charges, demands, losses, damages, judgments, liens, indebtedness and liabilities in any way relating to or arising out of alleged accessibility problems at the Ellie Caulkins Opera House including but not limited to claims under Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12131 et seq. or Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, Colorado Anti-Discrimination Act, Colo. Rev. Stat. §24-34-601 et seq. for damages, and any attendant costs and attorneys’ fees (except those provided in Paragraphs V and VI above), whether known or unknown, suspected or unsuspected, asserted or unasserted in the Lawsuit.

XI. COMMUNICATIONS

Any notice or communication required or permitted to be given to Named Plaintiffs or Defendant under this Agreement shall be given in writing by email and U.S. Mail, addressed as follows:

To Defendant:

Office of the Mayor of Denver 1437 Bannock Street Suite 350 Denver, CO 80202

Director of Theatres and Arenas 1245 Champa Street First Floor Denver, CO 80204

With a copy to:

City Attorney Office 201 W. Colfax Avenue Department 1207 Denver, CO 80202

To Plaintiffs:

Amy F. Robertson, Esq. Fox & Robertson, P.C. 3801 East Florida Avenue Suite 400 Denver, CO 80210

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And:
Kevin W. Williams, Esq. Legal Program Director Colorado Cross Disability Coalition 655 Broadway Suite 775 Denver, CO 80203
If the above addresses change, it is the responsibility of the Party whose address is changing to give written notice of said change to all other Parties within thirty (30) business days following the effective date of said change.
XII. MODIFICATION OR WAIVER OF AGREEMENT
No modification of this Agreement shall be effective unless it is pursuant to Court Order.
XIII. SEVERABILITY
If any provision or any part of this Agreement shall at any time be held unlawful, or inconsistent with applicable law, in whole or in part, under any federal, state, county, municipal or other law, ruling or regulation, then the remaining provisions of this Agreement shall remain effective and enforceable.
XIV. EXECUTION IN COUNTERPARTS
This Agreement may be signed in counterpart and shall be binding and effective immediately upon the execution by all Parties of one or more counterparts XV. DUTY TO SUPPORT AND DEFEND DECREE
Named Plaintiffs and Defendant by their signatures below, each agree to abide by all of the terms of this Agreement in good faith and to support it fully, and shall use their best efforts to defend this Agreement from any legal challenge, whether by appeal or collateral attack.
XVI. ENTIRE AGREEMENT
This Agreement contains all the agreements, conditions, promises and covenants among Plaintiffs, the Settlement Class and Defendant regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Agreement.
XVII. NO DISPARAGEMENT
The Parties agree that they will not make any false or misleading statements concerning
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Signature Page To Follow
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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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FSV ACME SCREW DRIVE VERTICAL PLATFORM LIFT
The FSV acme screw drive vertical platform lift is designed to comply with the applicable requirements in ASME A18.1 (formerly ASME17.1, Part XX and XXI). It utilizes a self-locking acme screw drive and a drive nut with a backup safety nut just like our conventional acme drive screw unit. The difference is that the conventional system moved the platform by spinning the screw shaft and holding the nut stationary. The FSV system holds the screw shaft stationary and spins the drive nut. This system allows us to run at faster speeds without increasing vibration levels because of the smaller rotating mass. The backup safety nut travels with the drive nut but does not support any load under normal conditions. If the main drive nut fails for any reason the backup safety nut holds the load and prevents the platform from falling. In addition, the safety nut switch will allow the lift to travel to the lower landing to allow the user to get out and then prevent future operation until the main drive nut is replaced.
Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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2
Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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OPERATING INSTRUCTIONS
NORMAL OPERATI0N A. Call the platform lift to the landing by using the hall call station. B. Place the key in the key switch (if equipped) and turn the key clockwise. Note that the key can only be removed
while in the "OFF" position. C. The paddle switch is a constant pressure switch and pressure must be maintained for the unit to operate. If the
switch is released, the unit will stop automatically. To operate the unit, simply push switch in the desired direction. D. When the unit reaches the landing, turn off the key and remove it. E. Get onto the platform. Repeat steps B-D. EMERGENCY MANUAL OPERATION
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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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FSV ACME SCREW DRIVE VERTICAL PLATFORM LIFT SPECIFICATIONS

Capacity:

750 pounds

Motor:

3 HP, 1725-RPM, three phase, 230 VAC, 60 HZ motor.

Power:

230 VAC, single phase, 60 hz

Drive:

Acme screw and Acme nut. The Acme screw stops are positive with less than ¼ inch of variance once control button is released.

Platform:

The Wheel-O-Vator platform is a non-skid, solid metal surface.

Ramp:

There may not be a pit provided or available. In this case a ramp must be provided. A model BC platform may be equipped with a 15" non-skid flip-up ramp. As the lift platform rises, the ramp hinges up. As the platform is lowered, the ramp lowers. All models may be equipped with a 30” non-skid stationary ramp.

Control Switches: Relay Logic Control System. All up/down switches are 24 volt, constant pressure. Each unit is equipped with a constant pressure switch on the
platform.

Safety Devices:

The unit is equipped with a safety nut. The nut is located directly above the Acme lift nut. If the nut should fail, the safety nut switch will not allow the unit to operate. DO NOT bypass safety switch or attempt to operate unit. Call your authorized dealer for service. All models may be equipped with a safety pan, which will shut the unit off if an obstruction is encountered under the platform.

Manual Operation: See manual operation section.

Hand Rails:

42" high solid metal panels. (36” on RE models.)

Warranty:

Four year limited warranty. Warranty does not include any labor cost. See warranty section.

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Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Jennifer Macy Director of Administration 1245 Champa Street, First floor Denver, CO 80204

June 10, 2008 Revised 6/23/08

Re: Ellie Caulkins Opera House

Dear Jennifer,

The following is the exact specifications offered of the proposed vertical platform lifts to be installed @ the Ellie Caulkins Opera House.

2 National Wheel O Vator in partnership with The Elevator Company Vertical Platform Lifts 1- BC 42 with FSV option and 1 BC 72 with FSV option. Both lifts share the following specifications exactly.

• 750 LB capacity • 2 Stop, through car with 42” or (68” respectively) of rise • FSV drive system @ 30 fpm travel speed • Automatic operation controls with emergency stop • Custom platform w/42” cab height • Wall mounted Controls with both call and send feature (top and bottom) – w/brail • Fully automatic operation • Building Generator to offer back up system. • ADA recessed phone & keyed operation kit • Recessed Handrail on wall opposite drive structure A117.1 compliant. • Site specific, engineered shop drawings • 3 year warranty • Platforms shall be a clear size of 37”x 60 ½” • Clear end door opening to be 34 ¼” on both sides of both lifts. End door
measurement to on an even plane through lift. + or – fire stop assembly.(not to be less than 33 5/8” in any case.) • Flush mounted doors to be mounted in smooth flush shaft top to bottom. • The lifts shall have no doors or gates at either end. • Lifts shall provide a more dependable operation than present solution due to the simplicity of the drive with the added technology of a VVVF Drive (FSV)

Attached I have provided the Section of the platform as requested. In addition I have attached the drawings with the appropriate title block.

Best regards and good luck,

Matthew Hyde CEO The Elevator Company

Exhibit 1 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 2 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 2 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 2 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Exhibit 2 to Class Action Settlement Agreement Civil Action No. 06-CV-00865-MSK-BNB

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Colorado Cross-Disability Coalition, Laura Hershey, Carrie Ann Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Asiza Carolyn Kolene Lucas, and Daniel Wilson v. The City and County of Denver Civil Action No. 06-CV-00865-MSK-BNB U.S. District Court, District of Colorado
IMPORTANT NOTICE TO ALL PEOPLE WITH DISABILITIES WHO USE WHEELCHAIRS OR SCOOTERS WHO HAVE ATTENDED THE ELLIE CAULKINS
OPERA HOUSE AT THE DENVER CENTER FOR THE PERFORMING ARTS
Notice of Class Action: A class action lawsuit is currently pending involving access issues for people with disabilities who use wheelchairs or scooters at the Ellie Caulkins Opera House (“Opera House”), part of the Denver Center for the Performing Arts. The following class was certified by the Court on ___________, 2008:
All persons with disabilities as defined by the Americans with Disabilities Act including persons who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House.
The Fourth Amended and Supplemental Class Action Complaint was filed on __________, 2008. The parties to the lawsuit have negotiated a proposed settlement that resolves claims relating to the accessibility concerns for individuals who use wheelchairs or scooters at the Opera House. In those negotiations, the plaintiff Class representatives were represented by Amy F. Robertson of Fox & Robertson, P.C. and Kevin W. Williams of the Colorado Cross-Disability Coalition. The Defendant in the case is the City and County of Denver (the “City”). Defendant is represented by Robert G. Wheeler, Assistant City Attorney. The plaintiff Class was represented by three individuals with disabilities who use wheelchairs or scooters.
Events Covered by the Settlement. The proposed settlement covers the Opera House, a venue that is part of the Denver Center for the Performing Arts.
If you are a person with a disability who uses a wheelchair or scooter and who, within four years prior to May 8, 2006, has experienced any problems with access at the Opera House as a result of your disability, you are a member of the proposed Settlement Class. A disability for purposes of this Settlement is a disability, as that term is defined in 42 U.S.C. § 12102, that necessitates the use of a wheelchair or scooter for mobility.
Please read this Notice carefully. It affects your legal rights.
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Proposed Class Action Settlement Agreement. The Class Action Settlement Agreement (“Settlement Agreement”) provides that the City will make certain repairs and accommodations in the Opera House, including installing lifts on both sides to provide access to the Orchestra level, installing two additional accessible and companion seats in the Orchestra level, installing automatic door openers and/or a magnet system to hold the doors open in the lift lobbies, make certain changes in its restrooms, provide accessible tables in the Kevin Taylor Restaurant, ensure that the ramp in the Chambers-Grant Salon is uncovered when that area is open to the public, and install a cane-detectable barrier at the main staircase to address low headroom issues.
Your Rights as a Class Member. The Court has granted Preliminary Approval of the Class Action Settlement Agreement. A hearing will be held on _________, 2008 at ______ _.m. in the Courtroom of U.S. District Judge Marcia S. Krieger in Denver, Colorado, to evaluate the fairness of the Settlement Agreement, and to decide whether to grant Final Approval. If the Settlement Agreement is given Final Approval, all Class members will be bound by the provisions of the Settlement Agreement with respect to various claims including claims for injunctive relief and attorneys’ fees and costs under the Americans with Disabilities Act, the Rehabilitation Act and the Colorado Anti-Discrimination Act. Any and all claims that the Opera House is in violation of these statutes with respect to access for individuals who use wheelchairs or scooters will be barred.
If you wish to object to the settlement or to speak at the hearing, you must send the Court a written objection to the settlement and/or notice of your intent to appear at the hearing on or before __________ at the following address: Honorable Marcia S. Krieger, Alfred A. Arraj US Courthouse, 901 19th Street, Denver, CO 80294 (1) Amy F. Robertson, Fox & Robertson, P.C., 3801 E. Florida Ave., Suite 400, Denver, CO 80210; and (2) Robert G. Wheeler, Assistant City Attorney, 201 W. Colfax Ave., Dept 1207, Denver, CO 80202.
How To Get Further Information. If you have any questions or want a copy of the entire Settlement Agreement, contact: Amy F. Robertson, Fox & Robertson, P.C., 3801 E. Florida Ave., Suite 400, Denver, CO 80210, email arob@foxrob.com. The Settlement Agreement is also available on Fox & Robertson’s website at www.foxrob.com/----.
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LIST OF COLORADO ORGANIZATIONS
Paralyzed Veterans of America Colorado Chapter Mountain States PVA 12200 East Iliff Avenue Suite 107 Aurora, CO 80014
Cerebral Palsy Colorado 801 Yosemite St. Denver, CO 80230
Center for People with Disabilities Robert Trujillo 1675 Range Street Boulder, CO 80301
Colorado Springs Independence Center Vicki Mitschler-Skoog 21 East Las Animas Colorado Springs, CO 80903
Atlantis Community, Inc. Mike Auberger 201 South Cherokee Street Denver, CO 80223
Disability Center for Independent Living 4821 E. 38th Avenue Denver, CO 80207
Southwest Center for Independence 835 E. 2nd Avenue, Suite 400 Durango, CO 81301
Disabled Resource Services 424 Pine St., Suite 101 Ft. Collins, CO 80524
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Center for Independence Attn: Linda Taylor 740 Gunnison Avenue Grand Junction, CO 81501
CONNECTIONS for Independent Living Beth Danielson 1024 Ninth Avenue, Suite E Greeley, CO 80631
Greeley Center for Independence Hope Cassidy 2780 28th Avenue Greeley, CO 80631
Disabled Resource Services (Satellite) 640 East Eisenhower Blvd. Loveland, CO 80537
Sangre De Cristo Independent Living Center 131 South Union Pueblo, CO 81004
Judy Neal, SILC Liaison Division of Vocational Rehabilitation Colorado Department of Human Services 1575 Sherman Street Denver, CO 80203
Debbie Petersen, SILC Chair 5600 West Third Street #9DD Greeley, CO 80634
The Legal Center for People with Disabilities and Older People 455 Sherman Street Suite 130 Denver, Colorado 80203
EXHIBIT 4 TO CLASS ACTION SETTLEMENT AGREEMENT Civil Action No. 06-CV-00865-MSK-BNB Page 2

Case 1:06-cv-00865-MSK-BNB Document 159-2 Filed 10/03/2008 Page 35 of 37 Colorado Governor's Advisory Council for People with Disabilities P.O. Box 15 Golden, CO 80402 Muscular Dystrophy Association 720 S. Colorado Boulevard, #450 Denver, Colorado 80246 Multiple Sclerosis Society Colorado Chapter 900 S. Broadway, 2nd Floor Denver, CO 80217
EXHIBIT 4 TO CLASS ACTION SETTLEMENT AGREEMENT Civil Action No. 06-CV-00865-MSK-BNB Page 3

Case 1:06-cv-00865-MSK-BNB Document 159-2 Filed 10/03/2008 Page 36 of 37
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00865-MSK-BNB COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO,
Defendant and Third Party Plaintiff, v. SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant.
FINAL JUDGMENT AND ORDER OF DISMISSAL OF PLAINTIFFS’ CLAIMS
IT IS HEREBY ORDERED that this Court grants final approval to the attached Class Action Settlement Agreement, and that judgment is entered in accordance with that Class Action Settlement Agreement, the terms of which are incorporated by reference herein.
EXHIBIT 5 TO CLASS ACTION SETTLEMENT AGREEMENT Civil Action No. 06-CV-00865-MSK-BNB

Case 1:06-cv-00865-MSK-BNB Document 159-2 Filed 10/03/2008 Page 37 of 37

IT IS FURTHER ORDERED that Plaintiffs’ claims against the City and County of Denver are dismissed with prejudice pursuant to Fed. R. Civ. P. 41(a)(1).
IT IS FURTHER ORDERED that the Court shall retain jurisdiction for the purpose of enforcing the Class Action Settlement Agreement between the Plaintiffs and the City and County of Denver should such enforcement be necessary.
BY THE COURT:

Dated:

Marcia S. Krieger United States District Judge

EXHIBIT 5 TO CLASS ACTION SETTLEMENT AGREEMENT Civil Action No. 06-CV-00865-MSK-BNB

 
 Case 1:06-cv-00865-MSK-BNB Document 161 Filed 10/22/08 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger
Civil Action No. 06-cv-00865-MSK-BNB
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, LAURA HERSHEY, CARRIE ANN LUCAS, HEATHER REBEKAH RENEE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ADRIANNE EMILY MONIQUE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, ASIZA CAROLYN KOLENE LUCAS, by and through her parent and next friend, CARRIE
ANN LUCAS, and DANIEL WILSON,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER,
Defendant and Third Party Plaintiff,
v.
SEMPLE BROWN DESIGN, P.C.,
Third Party Defendant.
ORDER GRANTING UNOPPOSED MOTION TO AMEND, GRANTING UNOPPOSED MOTION FOR CLASS CERTIFICATION, GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF
THE CLASS ACTION SETTLEMENT AGREEMENT, AND DENYING MOTIONS, AS MOOT
THIS MATTER comes before the Court on the Plaintiffs' Unopposed Motion for Leave
to File Their Fourth Amended and Supplemental Class Action Complaint (#157), the Plaintiffs'

Case 1:06-cv-00865-MSK-BNB Document 161 Filed 10/22/08 USDC Colorado Page 2 of 3
Unopposed Motion for Class Certification (#158), and the Plaintiffs' and Defendant/Third Party Plaintiff the City and County of Denver's Joint Motion for Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing (#159). Based upon the representations and stipulations of the parties, the Court ORDERS that:
1. The Plaintiffs' Unopposed Motion for Leave to File Their Fourth Amended and Supplemental Class Action Complaint (#157) is GRANTED.
2. The Plaintiffs' Unopposed Motion for Class Certification (#158) is GRANTED. All requirements of Fed. R. Civ. P. 23 being satisfied, the following class is certified:
All persons with disabilities who are currently or have been in the past four years residents of the State of Colorado who use wheelchairs or scooters for mobility who, within four years prior to the filing of the complaint in this Lawsuit, were denied or are being denied, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Ellie Caulkins Opera House. 3. Amy F. Robertson and Kevin W. Williams are CERTIFIED as class counsel. 4. Laura Hershey, Carrie Ann Lucas, and Daniel Wilson are CERTIFIED as class representatives. 5. The Plaintiffs' and Defendant/Third Party Plaintiff the City and County of Denver's Joint Motion for Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing (#159) is GRANTED. The Settlement Agreement is preliminarily approved. 6. A fairness hearing is set for February 23, 2009 at 4:00 p.m. in Courtroom A901 of the United States Courthouse located at 901 19th Street, Denver, Colorado, for purposes of considering final approval of the Settlement Agreement.
-2-

Case 1:06-cv-00865-MSK-BNB Document 161 Filed 10/22/08 USDC Colorado Page 3 of 3
7. The parties' proposed notice of the Settlement Agreement (Exhibit 3 to the Settlement Agreement) and proposed manner of notice are constitutionally adequate. Notice of the Settlement Agreement shall be given to class members in the manner stated in the Settlement Agreement.
8. The Defendant/Third Party Plaintiff's Motion for Summary Judgment (#131), the Plaintiffs' Motion for Partial Summary Judgment (#133), and the Defendant's Motion for Relief Pursuant to Rule 56(f) (#147), are DENIED, as moot.
Dated this 22nd day of October, 2008 BY THE COURT:
Marcia S. Krieger United States District Judge
-3-

 
 Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 1 of 20
ALLMTN, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:06−cv−00865−MSK−BNB

Colorado Cross−Disability Coalition et al v. Denver, City and County of et al Assigned to: Judge Marcia S. Krieger Referred to: Magistrate Judge Boyd N. Boland Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 05/08/2006 Date Terminated: 02/23/2009 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Colorado Cross−Disability Coalition a Colorado non−profit Corporation

represented by Kevin William Williams Colorado Cross−Disability Coalition 655 Broadway #775 Denver, CO 80203 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com

Ari Reuben Krichiver Smith &West, LLC−Denver 1860 Blake Street Blake Street Terrace #420 Denver, CO 80202 303−391−0100 Fax: 303−391−0102 Email: ari@smithandwest.com TERMINATED: 07/30/2007

Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com ATTORNEY TO BE NOTICED

Plaintiff Laura Hershey

represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address)

Case: 1:06-cv-00865-MSK-BNB
Plaintiff Robin Stephens TERMINATED: 10/17/2007
Plaintiff Carrie Ann Lucas
Plaintiff Heather Rebekah Renee Lucas by and through her parent and next friend, Carrie Ann Lucas
Plaintiff

As of: 06/03/2010 12:14 AM MDT 2 of 20
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address)
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address)
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:06-cv-00865-MSK-BNB Adrianne Emily Monique Lucas by and through her parent and next friend, Carrie Ann Lucas
Plaintiff Daniel Wilson
Plaintiff Asiza Carolyn Kolene Lucas by and through her parent and next friend, Carrie Ann Lucas

As of: 06/03/2010 12:14 AM MDT 3 of 20
Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address)
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address)
Ari Reuben Krichiver (See above for address) TERMINATED: 07/30/2007
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Denver, City and County of Colorado

represented by Ashley Elizabeth Arroyo Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332 720−913−3281 Fax: 720−913−3180 Email: Ashley.Arroyo@ci.denver.co.us TERMINATED: 10/19/2007 LEAD ATTORNEY
Mary E. Toornman Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332

Case: 1:06-cv-00865-MSK-BNB

As of: 06/03/2010 12:14 AM MDT 4 of 20
720−913−3275 Fax: 720−913−3180 Email: mary.toornman@ci.denver.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Griffin Wheeler Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332 720−913−3275 Fax: 720−913−3180 Email: robert.wheeler@denvergov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra Renee Knapp Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332 720−913−8408 Fax: 720−913−3180 Email: debra.knapp@denvergov.org ATTORNEY TO BE NOTICED
Elizabeth Jeanelia Hyatt Starrs &Mihm, LLP 707 17th Street #2600 Denver, CO 80202 303−592−5900 Fax: 303−592−5910 Email: ehyatt@starrslaw.com
Elizabeth L. Smith Starrs &Mihm, LLP 707 17th Street #2600 Denver, CO 80202 303−592−5900 Fax: 303−592−5910 Email: booka.smith@starrslaw.com ATTORNEY TO BE NOTICED
Elizabeth A. Starrs Starrs &Mihm, LLP 707 17th Street #2600 Denver, CO 80202 303−592−5900 Fax: 303−592−5910 Email: estarrs@starrslaw.com ATTORNEY TO BE NOTICED
Scott Christopher Johnson Hensel Phelps Construction Co. P.O. Box O 420 Sixth Avenue Greeley, CO 80632 970−346−7355 Fax: 970−346−7252 Email: scjohnson@henselphelps.com TERMINATED: 03/18/2008

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 5 of 20

Defendant Denver Center For Performing Arts a Colorado non−profit Corporation TERMINATED: 07/16/2007
Defendant Opera Colorado a Colorado non−profit Corporation TERMINATED: 09/11/2007
Defendant Colorado Ballet Company a Colorado non−profit Corporation TERMINATED: 09/11/2007

represented by Martin Semple Semple, Farrington &Everall, P.C. 1120 Lincoln Street #1308 Denver, CO 80203 303−595−0941 Fax: 303−861−9608 Email: msemple@smmpc.com LEAD ATTORNEY
Patrick B. Mooney Intermountain Rural Electric Association 5496 North U.S. Highway 85 P.O. Drawer A Sedalia, CO 80135 303−688−3100 Fax: 303−660−8906 Email: pmooney@intermountain−rea.com LEAD ATTORNEY
Michael Brent Case Semple, Farrington &Everall, P.C. 1120 Lincoln Street #1308 Denver, CO 80203 303−595−0941 Fax: 303−861−9608 Email: bcase@smmpc.com
Michelle Kim Walters Semple, Farrington &Everall, P.C. 1120 Lincoln Street #1308 Denver, CO 80203 303−595−0941 Fax: 303−861−9608 Email: mwalters@smmpc.com TERMINATED: 09/22/2006
represented by John C. Lowrie Ford &Harrison, LLP−Denver 1675 Broadway #2150 Denver, CO 80202−4679 303−592−8860 Fax: 303−592−8861 Email: jlowrie@fordharrison.com LEAD ATTORNEY
represented by James Cotter Ruh Holme Roberts &Owen, LLP−Denver 1700 Lincoln Street #4100 Denver, CO 80203−4541 303−866−0542 Fax: 303−866−0200 Email: james.ruh@hro.com TERMINATED: 09/11/2007 LEAD ATTORNEY

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 6 of 20

Defendant Colorado Symphony Association a Colorado non−profit organization TERMINATED: 09/11/2007
Defendant Semple Brown Design, P.C. TERMINATED: 10/17/2007 ThirdParty Plaintiff Denver, City and County of Colorado

Kathrin Helene Weston Perkins Coie LLP−Denver 1899 Wynkoop Street #700 Denver, CO 80202−1043 303−291−2300 Fax: 303−291−2400 Email: kwalsh@perkinscoie.com TERMINATED: 09/11/2007 LEAD ATTORNEY
represented by John C. Lowrie (See above for address) LEAD ATTORNEY
Colleen Meyers Rea Jackson Lewis, LLP−Denver 950 17th Street #2600 Denver, CO 80202 303−892−0404 Fax: 303−892−5575 Email: colleen.rea@jacksonlewis.com
represented by Ashley Elizabeth Arroyo (See above for address) TERMINATED: 10/19/2007 LEAD ATTORNEY
Mary E. Toornman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Griffin Wheeler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra Renee Knapp (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Jeanelia Hyatt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth L. Smith (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Starrs (See above for address) ATTORNEY TO BE NOTICED
Scott Christopher Johnson

Case: 1:06-cv-00865-MSK-BNB

As of: 06/03/2010 12:14 AM MDT 7 of 20
(See above for address) TERMINATED: 03/18/2008

V. ThirdParty Defendant Semple Brown Design, P.C.

represented by Meredith A. Kapushion Jackson Kelly, PLLC−Denver 1099 18th Street #2150 Denver, CO 80202 303−390−0520 Fax: 303−390−0177 Email: makapushion@jacksonkelly.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Michael Schulte Jackson Kelly, PLLC−Denver 1099 18th Street #2150 Denver, CO 80202 303−390−0189 Fax: 303−390−0177 Email: tmschulte@jacksonkelly.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Scott Ford Jackson Kelly, PLLC−Denver 1099 18th Street #2150 Denver, CO 80202 303−390−0010 Fax: 303−390−0177 Email: asford@jacksonkelly.com ATTORNEY TO BE NOTICED

Date Filed 05/08/2006
05/09/2006 05/22/2006 05/24/2006 05/24/2006

# Docket Text
1 COMPLAINT and jury demand against all defendants ( Filing fee $ 350, Receipt Number 268191) Summons Issued, filed by Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Civil Cover Sheet # 2 Receipt)(bpm, ) (Entered: 05/09/2006)
2 AMENDED COMPLAINT against all defendants, filed by Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Exhibit Seating Change Map)(Williams, Kevin) (Entered: 05/09/2006)
3 WAIVER OF SERVICE Returned Executed by all plaintiffs. Denver, City and County of waiver sent on 5/10/2006, answer due 7/10/2006. (Attachments: # 1 Continuation of Main Document Executed Waiver)(Williams, Kevin) (Entered: 05/22/2006)
4 Unopposed MOTION for Extension of Time to File Answer re 2 Amended Complaint,, 1 Complaint, by Defendant Denver Center For Performing Arts. (Attachments: # 1 Proposed Order (PDF Only))(Semple, Martin) (Entered: 05/24/2006)
5 NOTICE of Entry of Appearance by Timothy Patrick Fox on behalf of all plaintiffs (Fox, Timothy) (Entered: 05/24/2006)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 8 of 20

05/25/2006 05/25/2006
05/25/2006 05/26/2006 05/26/2006 05/26/2006 05/26/2006 05/26/2006 05/26/2006 05/26/2006 05/30/2006
05/30/2006 05/31/2006 06/12/2006
06/13/2006 06/14/2006 06/15/2006

6 MINUTE ORDER granting 4 Motion for Extension of Time to Answer. Denver Center For Performing Arts answer due 7/10/2006 by Judge Lewis T. Babcock on 05/25/06. (rlp, ) (Entered: 05/25/2006)
7 NOTICE OF SERVICE OF SUMMONS AND COMPLAINT by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas (Attachments: # 1 Affidavit Attachment A# 2 Affidavit Attachment B# 3 Affidavit Attachment C# 4 Affidavit Attachment D)(Williams, Kevin) (Entered: 05/25/2006)
8 STIPULATION for Extension of Time to Answer by Defendant Opera Colorado. (Lowrie, John) (Entered: 05/25/2006)
9 Docket Annotation re: 7 Notice (Other), Notice (Other): Filer will need to refile affidavits, each as SUMMONS RETURNED EXECUTED. Text only entry − no document attached. (rlp, ) (Entered: 05/26/2006)
10 SUMMONS Returned Executed by all plaintiffs. Colorado Ballet Company served on 5/10/2006, answer due 5/30/2006. (Williams, Kevin) (Entered: 05/26/2006)
11 SUMMONS Returned Executed by all plaintiffs. Colorado Symphony Association served on 5/10/2006, answer due 5/30/2006. (Williams, Kevin) (Entered: 05/26/2006)
12 SUMMONS Returned Executed by all plaintiffs. Denver Center For Performing Arts served on 5/10/2006, answer due 7/10/2006. (Williams, Kevin) (Entered: 05/26/2006)
13 SUMMONS Returned Executed by all plaintiffs. Opera Colorado served on 5/12/2006, answer due 6/1/2006. (Williams, Kevin) (Entered: 05/26/2006)
14 MINUTE ORDER re: 8 Stipulation for Extension of Time filed by Opera Colorado, Reset Deadlines: Opera Colorado answer due 6/21/2006. Signed by Judge Lewis T. Babcock on 05/26/06. (rlp, ) (Entered: 05/26/2006)
15 STIPULATION for Extension of Time to Answer by Defendant Colorado Symphony Association. (Lowrie, John) (Entered: 05/26/2006)
16 MINUTE ORDER re: 15 Stipulation for Extension of Time filed by Colorado Symphony Association, Reset Deadlines: Colorado Cross−Disability Coalition answer due 6/19/2006.. Signed by Judge Lewis T. Babcock on 05/30/06. (rlp, ) (Entered: 05/30/2006)
17 MOTION for Extension of Time to File Answer by Defendant Colorado Ballet Company. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Ruh, James) (Entered: 05/30/2006)
18 MINUTE ORDER granting 17 Motion for Extension of Time to Answer. Colorado Ballet Company answer due 6/19/2006 . Signed by Judge Lewis T. Babcock on 05/31/06. (rlp, ) (Entered: 05/31/2006)
19 Unopposed MOTION for Extension of Time to File Answer re 2 Amended Complaint, by Defendants Opera Colorado, Colorado Symphony Association. (Attachments: # 1 Proposed Order (PDF Only))(Lowrie, John) (Entered: 06/12/2006)
20 MINUTE ORDER granting 19 Motion for Extension of Time to Answer Opera Colorado answer due 7/10/2006; Colorado Symphony Association answer due 7/10/2006 by Judge Lewis T. Babcock on 06/13/06. (rlp, ) (Entered: 06/13/2006)
21 Unopposed MOTION for Extension of Time to File Answer re 2 Amended Complaint, by Defendant Colorado Ballet Company. (Attachments: # 1 Proposed Order (PDF Only))(Ruh, James) (Entered: 06/14/2006)
22 MINUTE ORDER granting 21 Defendant Colorado Ballet Company's Unopposed Motion for Extension of Time to File Answer or Responsive Pleading. Colorado Ballet Company answer due 7/10/2006, by Judge Lewis T. Babcock on 06/15/06. (rlp, ) (Entered: 06/15/2006)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 9 of 20

07/07/2006 07/10/2006
07/12/2006
07/13/2006 07/20/2006 07/26/2006 07/31/2006 08/01/2006 08/02/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/12/2006
09/20/2006 09/22/2006
10/13/2006

23 Unopposed MOTION for Extension of Time to File Answer by Defendant Denver, City and County of. (Arroyo, Ashley) (Entered: 07/07/2006)
24 ORDER granting 23 Motion for Extension of Time to Answer Denver, City and County of answer due 9/8/2006; Denver Center For Performing Arts answer due 9/8/2006; Opera Colorado answer due 9/8/2006; Colorado Ballet Company answer due 9/8/2006; Colorado Symphony Association answer due 9/8/2006, Signed by Judge Lewis T. Babcock on 07/10/06. (rlp, ) (Entered: 07/10/2006)
25 Unopposed MOTION for Leave to File Second Amended Complaint by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Document Second Amended Complaint# 2 Exhibit Attachment to Second Amended Complaint# 3 Proposed Order (PDF Only) Proposed Order)(Williams, Kevin) (Entered: 07/12/2006)
26 Minute ORDER granting 25 Plaintiffs' Unopposed Motion for Leave to File Second Amended Complaint, the tendered Second Amended Complaint is accepted forfiling, by Judge Lewis T. Babcock on 07/13/06. (rlp, ) (Entered: 07/13/2006)
27 CORPORATE DISCLOSURE STATEMENT by Defendant Colorado Symphony Association. (Lowrie, John) (Entered: 07/20/2006)
28 CORPORATE DISCLOSURE STATEMENT by Defendant Opera Colorado. (Lowrie, John) (Entered: 07/26/2006)
29 CORPORATE DISCLOSURE STATEMENT by Plaintiff Colorado Cross−Disability Coalition. (Williams, Kevin) (Entered: 07/31/2006)
30 CORPORATE DISCLOSURE STATEMENT by Defendant Colorado Ballet Company. (Ruh, James) (Entered: 08/01/2006)
31 CORPORATE DISCLOSURE STATEMENT by Defendant Denver Center For Performing Arts. (Walters, Michelle) (Entered: 08/02/2006)
32 Defendant Denver Center for the Performing Arts ANSWER to Amended Complaint by Denver Center For Performing Arts.(Semple, Martin) (Entered: 09/08/2006)
33 ANSWER to Amended Complaint by Colorado Ballet Company.(Ruh, James) (Entered: 09/08/2006)
34 ANSWER to Amended Complaint by Denver, City and County of. (Attachments: # 1 Continuation of Main Document)(Arroyo, Ashley) (Entered: 09/08/2006)
35 ANSWER to Amended Complaint by Opera Colorado.(Lowrie, John) (Entered: 09/08/2006)
36 ANSWER to Amended Complaint by Colorado Symphony Association.(Lowrie, John) (Entered: 09/08/2006)
37 ORDER REFERRING CASE to Magistrate Judge Lewis T. Babcock by Judge Babcock. (rlp2, ) Modified Entry on 10/20/2006 to notate that this docket entry fails to refer case, error corrected in entry 42 as a text only entry(rlp2, ). (Entered: 09/12/2006)
38 MOTION to Withdraw as Attorney by Defendant Denver Center For Performing Arts. (Attachments: # 1 Proposed Order (PDF Only))(Walters, Michelle) (Entered: 09/20/2006)
39 MINUTE ORDER granting 38 Motion to Withdraw as Attorney. Added attorney Patrick B. Mooney for Denver Center For Performing Arts, Michael Brent Case for Denver Center For Performing Arts. Attorney Michelle Kim Walters terminated, by Judge Lewis T. Babcock on 09/22/06.(rlp2, ) (Entered: 09/22/2006)
40 Unopposed MOTION for Hearing/Conference Regarding Scheduling by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Williams, Kevin) (Entered: 10/13/2006)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 10 of 20

10/20/2006
10/20/2006 10/20/2006 10/25/2006 10/26/2006 10/26/2006 11/08/2006 11/16/2006 11/27/2006 11/29/2006 11/30/2006
11/30/2006
11/30/2006 12/08/2006

41 MEMORANDUM regarding 40 Unopposed MOTION for Hearing/Conference Regarding Scheduling filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition, Robin Stephens. Motions referred to Magistrate Judge Boyd Boland by Judge Lewis T. Babcock on 10/20/06. (Text Only Entry − No Document Attached)(rlp2, ) (Entered: 10/20/2006)
42 ORDER REFERRING CASE to Magistrate Judge Boyd N. Boland by Judge Babcock. Text Only Entry, no document attached. Entry made to correct coding error in docket entry 37 which failed to refer the case. (rlp2, ) (Entered: 10/20/2006)
43 MEMORANDUM regarding 40 Unopposed MOTION for Hearing/Conference Regarding Scheduling. Motions referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 10/20/06. (Text Only Entry − No Document Attached)(rlp2, ) (Entered: 10/20/2006)
44 NOTICE of Entry of Appearance by Michael Brent Case on behalf of Denver Center For Performing Arts (Case, Michael) (Entered: 10/25/2006)
45 MINUTE ORDER granting 40 Plaintiffs Unopposed Motion to Convene Scheduling Conference Pursuant to D.C.COLO.LCivR 16.1, by Magistrate Judge Boyd N. Boland on 10/26/06.(rlp2, ) (Entered: 10/26/2006)
46 ORDER setting Scheduling Conference for 11/30/2006 09:00 AM before Magistrate Judge Boyd N. Boland, signed by Magistrate Judge Boyd N. Boland on 10/26/06. (rlp2, ) (Entered: 10/26/2006)
47 NOTICE of Entry of Appearance of Elizabeth A. Starrs, Richard B. Caschette, and Elizabeth L. Smith as Special Counsel for Defendant City and County of Denver by Elizabeth A. Starrs on behalf of Denver, City and County of (Starrs, Elizabeth) (Entered: 11/08/2006)
48 NOTICE of Entry of Appearance by Ari Reuben Krichiver on behalf of all plaintiffs (Krichiver, Ari) (Entered: 11/16/2006)
49 Proposed Scheduling Order by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Krichiver, Ari) (Entered: 11/27/2006)
50 NOTICE OF CONSENT OF ELECTRONIC SERVICE by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas (Williams, Kevin) (Entered: 11/29/2006)
51 Minute Entry for proceedings held before Magistrate Judge Boyd N. Boland. Scheduling Conference held on 11/30/2006. Discovery due by 8/31/2007. Dispositive Motions due by 10/1/2007. Settlement Conference set for 1/4/2007 01:30 PM in Conference Room before Magistrate Judge Boyd N. Boland. Proposed Pretrial Order due by 11/26/2007. Final Pretrial Conference set for 12/3/2007 08:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. (Court Reporter FTR−G. MATTEI.) (bnbcd, ) (Entered: 11/30/2006)
52 SCHEDULING ORDER: Discovery due by 8/31/2007.,Dispositive Motions due by 10/1/2007., Settlement Conference set for 1/4/2007 01:30 PM before Magistrate Judge Boyd N. Boland.,Proposed Pretrial Order due by 11/26/2007., Final Pretrial Conference set for 12/3/2007 08:30 AM before Magistrate Judge Boyd N. Boland.. Signed by Magistrate Judge Boyd N. Boland on 11/30/06. (rlp, ) (Entered: 11/30/2006)
53 MINUTE ORDER,setting Final Pretrial Conference for 12/3/2007 08:30 AM before Magistrate Judge Boyd N. Boland., Settlement Conference set for 1/4/2007 01:30 AM before Magistrate Judge Boyd N. Boland by Magistrate Judge Boyd N. Boland on 11/30/06. (rlp, ) (Entered: 11/30/2006)
54 MINUTE ORDER confirming the setting of a fourteen day Jury Trial for 6/2/2008 08:30 AM in Courtroom A 201 before Chief Judge Lewis T. Babcock. Final Trial

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 11 of 20

12/28/2006 01/02/2007
01/02/2007 01/11/2007 01/12/2007 01/12/2007 01/12/2007 01/17/2007 01/18/2007
03/07/2007
03/08/2007 03/08/2007 03/15/2007

Preparation Conference set for 5/8/2008 at 08:00 AM in Courtroom A 201 before Chief Judge Lewis T. Babcock, by Judge Lewis T. Babcock on 12/08/06. (rlp2, ) (Entered: 12/08/2006)
55 MOTION to Reset Scheduling Conference by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only) Motion to Reset Scheduling Conference)(Williams, Kevin) (Entered: 12/28/2006)
56 MEMORANDUM regarding 55 MOTION to Reset Scheduling Conference filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition, Robin Stephens. Motions referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 01/02/07. (Text Only Entry − No Document Attached)(rlp, ) (Entered: 01/02/2007)
57 MINUTE ORDER granting 55 Plaintiffs' Motion to Reset SettlementConference, Settlement Conference reset for 3/15/2007 01:30 PM before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 01/02/07.(rlp, ) (Entered: 01/02/2007)
58 Unopposed MOTION for Leave to of Court to File an Amended Scheduling Order by Defendant Denver, City and County of. (Attachments: # 1 Exhibit A, Part 1# 2 Exhibit A, Part 2# 3 Exhibit B, C &D)(Smith, Elizabeth) (Entered: 01/11/2007)
59 NOTICE of Change of Address Effective January 22, 2007 by Elizabeth A. Starrs (Starrs, Elizabeth) (Entered: 01/12/2007)
60 NOTICE of Change of Address Effective January 22, 2007 by Richard B. Caschette (Caschette, Richard) (Entered: 01/12/2007)
61 MEMORANDUM regarding 58 Unopposed MOTION for Leave to of Court to File an Amended Scheduling Order filed by Denver, City and County of. Motions referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 01/12/07. (Text Only Entry − No Document Attached)(rlp, ) (Entered: 01/16/2007)
62 NOTICE of Change of Address by Elizabeth L. Smith (Smith, Elizabeth) (Entered: 01/17/2007)
63 ORDER granting in part and denying in part 58 Unopposed Motion for Leave of Court to File an Amended Scheduling Order: Discovery Cut−Off November 29, 2007, Dispositive Motions Deadline November 29, 2007, The final pretrial conference set for December 3, 2007, at 8:30 a.m., is VACATED and RESET to January 29, 2008, at 8:30 a.m., in Courtroom 401, A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than January 22, 2008. Signed by Magistrate Judge Boyd N. Boland on 01/18/07.(rlp, ) (Entered: 01/19/2007)
64 Stipulated MOTION for Protective Order by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Defendants Denver, City and County of, Denver Center For Performing Arts, Opera Colorado, Colorado Ballet Company, Colorado Symphony Association. (Attachments: # 1 Proposed Order (PDF Only) Proposed Protective Order)(Williams, Kevin) (Entered: 03/07/2007)
65 MEMORANDUM regarding 64 Stipulated MOTION for Protective Order. Motions referred to Magistrate Judge Boyd N. Boland, by Judge Lewis T. Babcock on 3/8/07. (Text Only Entry − No Document Attached)(gms, ) (Entered: 03/08/2007)
66 Consent PROTECTIVE ORDER re: discovery. Signed by Magistrate Judge Boyd N. Boland on 3/8/07. (gms, ) (Entered: 03/08/2007)
67 Minute Entry for proceedings held before Magistrate Judge Boyd N. Boland : Settlement Conference held on 3/15/2007. No Settlement Reached (erv, ) (Entered: 03/15/2007)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 12 of 20

03/15/2007 03/26/2007
03/27/2007
03/27/2007 03/27/2007 04/05/2007 04/05/2007 06/14/2007 07/11/2007 07/16/2007 07/24/2007 07/25/2007 07/30/2007 07/31/2007 08/01/2007

68 MINUTE ORDER, Set Deadlines: Status Report due by 3/29/2007. by Magistrate Judge Boyd N. Boland on 3/15/07. (erv, ) (Entered: 03/15/2007)
69 Unopposed MOTION For Extension of Time to File Status Report by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 03/26/2007)
70 MEMORANDUM regarding 69 Unopposed MOTION For Extension of Time to File Status Report filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 3/27/07. (Text Only Entry − No Document Attached)(pap2, ) (Entered: 03/27/2007)
71 MINUTE ORDER Granting 69 Plaintiffs' Unopposed Motion for Extension of Time to File Status Report. Status Report is due on or before 4/5/07. Entered by Magistrate Judge Boyd N. Boland on 3/27/07.(pap, ) (Entered: 03/27/2007)
72 Utility Setting Deadlines: Pursuant to 71 Minute Order, Status Report due by 4/5/2007. Text only entry − no document attached. (pap, ) (Entered: 03/27/2007)
73 STATUS REPORT by Defendant Colorado Ballet Company. (Weston, Kathrin) (Entered: 04/05/2007)
74 STATUS REPORT by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Williams, Kevin) (Entered: 04/05/2007)
75 NOTICE of Entry of Appearance by Scott Christopher Johnson on behalf of Denver, City and County of (Johnson, Scott) (Entered: 06/14/2007)
76 Stipulated MOTION to Dismiss with Prejudice All Claims of All Plaintiffs Against the Denver Center for the Performing Arts by Defendant Denver Center For Performing Arts. (Attachments: # 1 Proposed Order (PDF Only))(Semple, Martin) (Entered: 07/11/2007)
77 ORDER pursuant to the 76 Stipulated Motion to Dismiss, this matter shall be DISMISSED WITH PREJUDICE between all Plaintiffs and Defendant Denver Center for the Performing Arts, each party to pay their own fees and costs. Signed by Judge Lewis T. Babcock on 7/16/07.(mrs, ) (Entered: 07/16/2007)
78 MOTION to Withdraw as Attorney by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Krichiver, Ari) (Entered: 07/24/2007)
79 Proposed MOTION for Order to Withdraw as Counsel of Record by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Krichiver, Ari) (Entered: 07/25/2007)
80 MINUTE ORDER GRANTING 78 Motion to Withdraw as Attorney. Attorney Ari Reuben Krichiver terminated as counsel for Plaintiffs, by Judge Lewis T. Babcock on 7/30/07.(mrs, ) (Entered: 07/30/2007)
81 MINUTE ORDER Settlement Conference set for 8/20/2007 01:30 PM, with plaintiffs and defendant City and County of Denver, Colorado ONLY in Chambers A−442 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 7/31/07. (mrs, ) (Entered: 07/31/2007)
82 Unopposed MOTION to Amend/Correct/Modify Scheduling Order and Extension to Respond to Discovery Requests by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only) Minute Order)(Williams, Kevin) (Entered: 08/01/2007)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 13 of 20

08/02/2007
08/09/2007 08/09/2007 08/09/2007 09/10/2007 09/10/2007 09/10/2007 09/11/2007 09/11/2007 09/11/2007 10/05/2007 10/15/2007 10/15/2007

83 MEMORANDUM regarding 82 Unopposed MOTION to Amend/Correct/Modify Scheduling Order and Extension to Respond to Discovery Requests filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 8/2/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 08/02/2007)
84 ORDER GRANTING Plaintiffs' Unopposed 82 Motion to Amend Scheduling Order and for Extension of Time to Respond to Discovery Requests. Discovery deadline is extended to 12/6/07, Dispositive Motions deadline is extended to 1/15/08. Signed by Magistrate Judge Boyd N. Boland on 8/9/07.(mrs, ) (Entered: 08/09/2007)
85 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 12/6/2007, Dispositive Motions due by 1/15/2008 pursuant to Order dated 8/9/07. Text only entry − no document attached. (mrs, ) (Entered: 08/09/2007)
86 NOTICE of Entry of Appearance by Amy Farr Robertson on behalf of all plaintiffs (Robertson, Amy) (Entered: 08/09/2007)
87 Stipulated MOTION to Dismiss Defendant Opera Colorado by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Defendant Opera Colorado. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 09/10/2007)
88 Stipulated MOTION to Dismiss Defendant Colorado Symphony by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas, Defendant Colorado Symphony Association. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 09/10/2007)
89 Stipulated MOTION to Dismiss Defendant Colorado Ballet by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1)(Williams, Kevin) (Entered: 09/10/2007)
90 ORDER of Dismissal with Prejudice of All Claims of all Plaintiffs against Colorado Ballet re Stipulated 89 Motion to Dismiss. Claims of all plaintiffs against Defendant Colorado Vallet in this lawsuit are hereby DISMISSED, with prejudice. Each party to pay their own attorneys' fees and costs. Signed by Judge Lewis T. Babcock on 9/11/07.(mrs, ) (Entered: 09/11/2007)
91 ORDER of Dismissal with Prejudice re: Stipulated 88 Motion to Dismiss with Prejudice. All claims of all Plaintiffs against Defendant Colorado Symphony Association in this lawsuit are hereby DISMISSED, with prejudice. Each party to pay their own attorneys' fees and costs. Signed by Judge Lewis T. Babcock on 9/11/07.(mrs, ) (Entered: 09/11/2007)
92 ORDER of Dismissal with Prejudice of Claims of all Plaintiffs against Opera Colorado re: Stipulated 87 Motion to Dismiss. All claims of all Plaintiffs against Defendant Opera Colorado in this lawsuit are hereby DISMISSED, with prejudice. Each party to pay their own attorneys' fees and costs. Signed by Judge Lewis T. Babcock on 9/11/07.(mrs, ) (Entered: 09/11/2007)
93 Unopposed MOTION to Withdraw as Attorney by Defendant Denver, City and County of. (Arroyo, Ashley) (Entered: 10/05/2007)
94 Joint MOTION to Dismiss with Prejudice Released Claims by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 10/15/2007)
95 Unopposed MOTION for Leave to File Third Amended and Supplemental Complaint by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 14 of 20

10/15/2007 10/17/2007
10/17/2007 10/17/2007 10/19/2007 10/29/2007
10/29/2007
11/06/2007 03/13/2008
03/14/2008 03/14/2008

Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Document Third Amended and Supplemental Complaint# 2 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 10/15/2007)
96 Joint MOTION to Continue Trial Date and to Extend Discovery and Pretrial Deadlines by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Robin Stephens, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 10/15/2007)
97 ORDER The following claims are dismissed with prejudice, each party to bear its own fees and costs. Plaintiffs claims under the Colorado Consumer Protection Act (CCPA), id., §§ 6−1−101 et seq.; Plaintiffs claims relating venues other than the Ellie Caulkins Opera House; and Plaintiffs claims relating to the Ellie Caulkins Opera House resolved by the Parties in the parties Release and Partial Settlement Agreement (Agreement). Signed by Judge Lewis T. Babcock on 10/17/07.(mrs) (Entered: 10/17/2007)
98 MINUTE ORDER GRANTING Plaintiffs' Unopposed 95 Motion for Leave to File Their Third Amended and Supplemental Complaint and the same is accepted for filing, by Judge Lewis T. Babcock on 10/17/07.(mrs) (Entered: 10/17/2007)
99 THIRD AMENDED AND SUPPLEMENTAL COMPLAINT against Denver, City and County of, filed by Asiza Carolyn Kolene Lucas, Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas.(mrs) (Entered: 10/17/2007)
100 MINUTE ORDER GRANTING 93 Motion to Withdraw as Attorney. Attorney Ashley Elizabeth Arroyo terminated as counsel for Defendant, by Judge Lewis T. Babcock on 10/19/07.(mrs) (Entered: 10/19/2007)
101 MINUTE ORDER GRANTING the Joint 96 Motion to Continue Trial and Extension of Discovery and Pretrial Deadlines. Discovery cut−off due by 6/6/08, Dispositive motion deadline due by 7/11/08, Proposed Pretrial Order due by 8/8/08, Final Pretrial Conference set for 8/15/08 at 8:30 AM before Magistrate Judge Boland, Trial Preparation Conference set for 1/7/09 at 8:30 AM before Judge Lewis T. Babcock, Five (5) day Jury Trial set for 2/2/09 at 9:00 AM before Judge Lewis T. Babcock, by Judge Lewis T. Babcock on 10/29/07.(mrs) (Entered: 10/29/2007)
102 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 6/6/2008. Dispositive Motions due by 7/11/2008. Proposed Pretrial Order due by 8/8/2008. Final Pretrial Conference set for 8/15/2008 08:30 AM before Magistrate Judge Boyd N. Boland. Trial Preparation Conference set for 1/7/2009 at 08:30 AM before Judge Lewis T. Babcock. Five (5) day Jury Trial set for 2/2/2009 09:00 AM before Judge Lewis T. Babcock pursuant to Minute Order dated 10/29/07. Text only entry − no document attached. (mrs) (Entered: 10/29/2007)
103 ANSWER to 99 Amended Complaint, by Denver, City and County of.(Smith, Elizabeth) (Entered: 11/06/2007)
104 Unopposed MOTION for Leave to File Third Party Complaint by Defendant Denver, City and County of. (Attachments: # 1 Exhibit A − Third Party Complaint, # 2 Exhibit 1, Part 1 of 7 to Third Party Complaint, # 3 Exhibit 1, Part 2 of 7 to Third Party Complaint, # 4 Exhibit 1, Part 3 of 7 to Third Party Complaint, # 5 Exhibit 1, Part 4 of 7 to Third Party Complaint, # 6 Exhibit 1, Part 5 of 7 to Third Party Complaint, # 7 Exhibit 1, Part 6 of 7 to Third Party Complaint, # 8 Exhibit 1, Part 7 of 7 to Third Party Complaint, # 9 Proposed Order (PDF Only))(Starrs, Elizabeth) (Entered: 03/13/2008)
105 MINUTE ORDER granting 104 Defendant City and County of Denvers Unopposed Motion for Leave to File a Third Party Complaint. Third Party Complaint is accepted for filing by Judge Lewis T. Babcock on 03/14/2008.(sah, ) (Entered: 03/14/2008)
106 THIRD PARTY COMPLAINT and JURY DEMAND against Semple Brown Design, P.C., filed by Denver, City and County of.(sah, ) (Entered: 03/14/2008)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 15 of 20

03/17/2008 03/18/2008 04/03/2008
04/04/2008
04/08/2008 05/22/2008
05/22/2008
05/23/2008
05/27/2008 05/27/2008 06/02/2008

107 Unopposed MOTION to Withdraw as Attorney Scott Johnson by Defendant Denver, City and County of. (Attachments: # 1 Exhibit Notice of Withdrawal, # 2 Proposed Order (PDF Only) Proposed Order)(Knapp, Debra) (Entered: 03/17/2008)
108 MINUTE ORDER granting 107 The Unopposed Motion to Withdraw as Counsel. Attorney Scott Christopher Johnson terminated by Judge Lewis T. Babcock on 03/18/2008.(sah, ) (Entered: 03/18/2008)
109 Stipulated MOTION to Amend/Correct/Modify 101 Order on Motion to Continue,, Scheduling Order Regarding Expert Witness Deadlines by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas, Defendants Denver, City and County of, Semple Brown Design, P.C., ThirdParty Plaintiff Denver, City and County of, ThirdParty Defendant Semple Brown Design, P.C.. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 04/03/2008)
110 MEMORANDUM regarding 109 Stipulated MOTION to Amend/Correct/Modify 101 Order on Motion to Continue,, filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Denver, City and County of, Carrie Ann Lucas, Colorado Cross−Disability Coalition, Semple Brown Design, P.C., Asiza Carolyn Kolene Lucas, Laura Hershey. Motion referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 04/04/2008. Text Only Entry − No Document Attached(sah2, ) (Entered: 04/04/2008)
111 MINUTE ORDER granting 109 Stipulated Motion to Amend Scheduling Order Regarding Expert Witness Deadlines. The parties shall designate all experts on or before 5/26/2008. The parties shall designate all rebuttal experts on or before 6/9/2008 by Magistrate Judge Boyd N. Boland on 04/08/2008.(sah2, ) (Entered: 04/08/2008)
112 Joint MOTION to Amend/Correct/Modify Scheduling Order by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas, Defendants Denver, City and County of, Semple Brown Design, P.C., ThirdParty Plaintiff Denver, City and County of, ThirdParty Defendant Semple Brown Design, P.C.. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 05/22/2008)
113 Joint MOTION to Continue Trial by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas, Defendants Denver, City and County of, Semple Brown Design, P.C., ThirdParty Plaintiff Denver, City and County of, ThirdParty Defendant Semple Brown Design, P.C.. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 05/22/2008)
114 MEMORANDUM regarding 112 Joint MOTION to Amend/Correct/Modify Scheduling Order filed by Daniel Wilson, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Denver, City and County of, Carrie Ann Lucas, Colorado Cross−Disability Coalition, Semple Brown Design, P.C., Asiza Carolyn Kolene Lucas, Laura Hershey. Motion referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 05/23/2008. Text Only Entry − No Document Attached(sah, ) (Entered: 05/23/2008)
115 NOTICE of Entry of Appearance of Timothy M. Schulte, Andrew S. Ford and Meredith A. Kapushion by Andrew Scott Ford on behalf of Semple Brown Design, P.C. (Ford, Andrew) (Entered: 05/27/2008)
116 ANSWER to 106 Third Party Complaint by Semple Brown Design, P.C..(Ford, Andrew) (Entered: 05/27/2008)
117 SUMMONS Returned Executed by Denver, City and County of. Semple Brown Design, P.C. served on 5/7/2008, answer due 5/27/2008. (Attachments: # 1 Affidavit/Return of Service)(Starrs, Elizabeth) (Entered: 06/02/2008)

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 16 of 20

06/05/2008
06/06/2008
06/06/2008
06/25/2008 06/27/2008 07/01/2008 07/02/2008
07/02/2008
07/03/2008 07/03/2008 07/10/2008 07/11/2008 07/11/2008

118 MINUTE ORDER granting 113 Joint Motion to Continue Trial Date. The trial preparation conference set for 1/7/2009 and the trial set for 2/2/2009 are VACATED. This matter is set for trial to jury for ten (10) days commencing 7/27/2009 at 9:00 AM in C401. A trial preparation conference is set for 6/26/2009 at 10:30 AM by Judge Lewis T. Babcock on 06/05/2008.(sah, ) (Entered: 06/05/2008)
120 MINUTE ORDER granting 112 Joint Motion to Amend Scheduling Order. The Scheduling Order is amended as follows: Expert Witness Disclosures due on or before 7/25/2008; Rebuttal experts due on or before 8/8/2008; Discovery Cut−off is 8/22/2008; Dispositive Motion Deadline is 9/11/2008; Pretrial Conference set for 8/15/2008 is VACATED and RESET to 1/20/2009 at 9:30 AM, Courtroom (Entered: 06/06/2008)
121 Utility Setting/Resetting Deadlines/Hearings: Pursuant to Minute Order dated 6/06/2008, Discovery due by 8/22/2008. Dispositive Motions due by 9/11/2008. Proposed Pretrial Order due by 1/13/2009. Final Pretrial Conference set for 1/20/2009 09:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. Text only entry − no document attached. (sah, ) (Entered: 06/06/2008)
122 NOTICE of Entry of Appearance of Mary E. Toornman, Debra R. Knapp, and Robert G. Wheeler by Debra Renee Knapp on behalf of Denver, City and County of (Knapp, Debra) (Entered: 06/25/2008)
123 NOTICE of Desire to no Longer be Electronically Served with Filings by Defendant Denver Center For Performing Arts (Case, Michael) (Entered: 06/27/2008)
124 MOTION to Amend/Correct/Modify 120 Order on Motion to Amend/Correct/Modify, Scheduling Order by ThirdParty Defendant Semple Brown Design, P.C.. (Attachments: # 1 Proposed Order (PDF Only) Amended Scheduling Order)(Ford, Andrew) (Entered: 07/01/2008)
125 MEMORANDUM regarding 124 MOTION to Amend/Correct/Modify 120 Order on Motion to Amend/Correct/Modify, Scheduling Order filed by Semple Brown Design, P.C. Motion referred to Magistrate Judge Boyd N. Boland by Judge Lewis T. Babcock on 07/02/2008. (Text Only Entry − No Document Attached)(sah, ) (Entered: 07/02/2008)
126 STATEMENT of Non−Opposition to Semple Brown Design, P.C.s Motion to Amend Scheduling Order by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Robertson, Amy) (Entered: 07/02/2008)
127 MINUTE ORDER granting 124 Semple Brown Design, P.C.s Motion to AmendScheduling Order. Discovery Cut−off: 11/20/2008, Dispositive Motion Deadline: 12/10/2008 by Magistrate Judge Boyd N. Boland on 07/03/2008.(sah, ) (Entered: 07/03/2008)
128 Utility Setting/Resetting Deadlines/Hearings: Pursuant to the Minute Order dated 07/03/2008 Discovery due by 11/20/2008. Dispositive Motions due by 12/10/2008. Text only entry − no document attached. (sah, ) (Entered: 07/07/2008)
129 CERTIFICATE of Review by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of. (Starrs, Elizabeth) (Entered: 07/10/2008)
130 NOTICE of Change of Address Firm Name Change by Elizabeth A. Starrs (Starrs, Elizabeth) (Entered: 07/11/2008)
131 MOTION for Partial Summary Judgment by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of. (Attachments: # 1 Part 1 of Exhibit 1, # 2 Part 2 of Exhibit 1, # 3 Part 3 of Exhibit 1, # 4 Part 4 of Exhibit 1, # 5 Part 5 of Exhibit 1, # 6 Part 6 of Exhibit 1, # 7 Part 7 of Exhibit 1, # 8 Part 8 of Exhibit 1, # 9 Part 9 of Exhibit 1, # 10 Part 10 of Exhibit 1, # 11 Part 11 of Exhibit 1, # 12 Part 12 of Exhibit 1, # 13 Part 13 of Exhibit 1, # 14 Part 14 of Exhibit 1, # 15 Part 15 of Exhibit 1, # 16 Part 16 of Exhibit 1, # 17 Part 17 of Exhibit 1, # 18 Part 18 of Exhibit 1, # 19 Part 19 of Exhibit 1, # 20 Part 20 of Exhibit 1, # 21 Part

Case: 1:06-cv-00865-MSK-BNB As of: 06/03/2010 12:14 AM MDT 17 of 20

07/30/2008
08/04/2008
08/14/2008 08/14/2008 08/14/2008 08/14/2008 08/15/2008 08/15/2008 08/18/2008
08/19/2008 08/29/2008 08/29/2008 09/04/2008 09/05/2008

21 of Exhibit 1, # 22 Part 22 of Exhibit 1, # 23 Part 23 of Exhibit 1, # 24 Exhibit 2 − Affidavit of Jack Finlaw, # 25 Exhibit 2 − Ex. A to Affidavit of Jack Finlaw, # 26 Exhibit 2 − Ex. B to Affidavit of Jack Finlaw, # 27 Exhibit 2 − Ex. C to Affidavit of Jack Finlaw, # 28 Exhibit 2 − Ex. D to Affidavit of Jack Finlaw)(Hyatt, Elizabeth) (Entered: 07/11/2008)
132 RESPONSE to Motion re 131 MOTION for Partial Summary Judgment filed by ThirdParty Defendant Semple Brown Design, P.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B Part 1, # 3 Exhibit B Part 2, # 4 Exhibit B Part 3, # 5 Exhibit B Part 4, # 6 Attachment, # 7 Proposed Order (PDF Only))(Schulte, Timothy) (Entered: 07/30/2008)
133 Partial MOTION for Summary Judgment Against Defendant/Third Party Plaintiff City and County of Denver by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Declaration of Amy Farr Robertson, # 2 Declaration of Carrie Ann Lucas, # 3 Declaration of Laura Hershey, # 4 Declaration of Daniel Wilson)(Robertson, Amy) (Entered: 08/04/2008)
134 NOTICE of Deposition of Richard Geiser by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 08/14/2008)
135 NOTICE of Deposition of Chris Wineman by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 08/14/2008)
136 NOTICE of Deposition of Russeell L. Brown, Jr. by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 08/14/2008)
137 NOTICE of Deposition of Jonathan Springer by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 08/14/2008)
138 REPLY to Response to Motion re 131 MOTION for Partial Summary Judgment filed by ThirdParty Plaintiff Denver, City and County of. (Attachments: # 1 Exhibit Exhibits 3 and 4)(Knapp, Debra) (Entered: 08/15/2008)
139 Unopposed MOTION For Extension of Time by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of. (Knapp, Debra) (Entered: 08/15/2008)
140 MINUTE ORDER granting 139 Defendants Unopposed Motion for Enlargement of Time to file its Response to Plaintiffs Motion for Partial Summary Judgment. Defendant's have up to and including 9/09/2008. Plainitffs' reply is due on or before 10/03/2008 by Judge Lewis T. Babcock on 08/18/2008.(sah, ) (Entered: 08/18/2008)
141 NOTICE of Deposition of Peter Lucking by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 08/19/2008)
142 ORDER of Recusal directing reassignment to another judge. Signed by Judge Lewis T. Babcock on 8/29/08. (pap, ) (Entered: 08/29/2008)
143 LETTER REASSIGNING CASE. Case reassigned to Judge Marcia S. Krieger for all further proceedings. Judge Lewis T. Babcock no longer assigned to the case. (pap, ) (Entered: 08/29/2008)
144 MINUTE ORDER: The Pretrial Conference set in front of me for 1/20/09, isVACATED, by Magistrate Judge Boyd N. Boland on 9/4/08. (jmp, ) (Entered: 09/04/2008)
145 ORDER REGARDING CUSTODY OF EXHIBITS AND DEPOSITIONS USED IN EVIDENTIARY HEARINGS AND TRIALS: Any exhibits and depositions used during evidentiary hearings or trials, counsel for the parties shall retrieve the

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09/05/2008 09/05/2008 09/05/2008 09/08/2008 09/10/2008 09/10/2008 09/19/2008 09/22/2008
09/25/2008 10/02/2008
10/03/2008 10/03/2008

originals of such exhibits and depositions from the Court following the evidentiary hearing or trial, and shall retain same for 60 days beyond the later of the time to appeal or conclusion of any appellate proceedings. The Court will retain its copy of the exhibits for the same time period after which the documents will be destroyed. Signed by Judge Marcia S. Krieger on 9/5/08. (mskcd) (Entered: 09/05/2008)
146 AMENDED ORDER OF REFERENCE TO MAGISTRATE JUDGE AND LETTER TO COUNSEL (Upon reassignment of case to Judge Marcia S. Kreiger):continued referral of case to Magistrate Judge Boyd N. Boland. Signed by Judge Marcia S. Krieger on 9/5/08. (mskcd) (Entered: 09/05/2008)
147 MOTION for Reconsideration Verified Motion for Relief pursuant to Rule 56(f) by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of. (Knapp, Debra) (Entered: 09/05/2008)
148 AFFIDAVIT re 147 MOTION for Reconsideration Verified Motion for Relief pursuant to Rule 56(f) Debra Knapp's Affidavit pursuant to Rule 56(f) by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of. (Attachments: # 1 Proposed Order (PDF Only) for document #147)(Knapp, Debra) (Entered: 09/05/2008)
149 NOTICE of Change of Address by Amy Farr Robertson (Robertson, Amy) (Entered: 09/08/2008)
150 NOTICE of Deposition of Laura Hershey by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 09/10/2008)
151 NOTICE Deposition of Daniel Wilson by Defendant Denver, City and County of, ThirdParty Plaintiff Denver, City and County of (Wheeler, Robert) (Entered: 09/10/2008)
152 Joint MOTION to Continue Pending Deadlines to Prepare Settlement Documents by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 09/19/2008)
153 MEMORANDUM regarding 152 Joint MOTION to Continue Pending Deadlines to Prepare Settlement Documents filed by Daniel Wilson, Asiza Carolyn Kolene Lucas, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition. Motion Is referred to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 9/22/08. (Text Only Entry − No Document Attached)(msksec, ) (Entered: 09/22/2008)
154 MINUTE ORDER re: 152 Joint MOTION to Continue Pending Deadlines to Prepare Settlement Documents. Motion Hearing set for 10/2/2008 09:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 9/25/08. (jmp, ) (Entered: 09/25/2008)
155 Minute Entry for proceedings held before Magistrate Judge Boyd N. Boland. ORDERED:Joint motion to continue pending deadlines to prepare settlement documents filed September 19, 2008; Doc. 152 is granted as stated on the record. All pretrial deadlines are vacated. Parties directed to file motion for preliminary approval on or about October 3, 2008. Motion Hearing held on 10/2/2008. (Court Reporter FTR−G.Mattei.) (bnbcd, ) (Entered: 10/02/2008)
156 ORDER: All existing pretrial deadlines are VACATED. The parties shall file a motion to amend the complaint, for class certification, and for preliminary approval of the class settlement by 10/3/08. Signed by Magistrate Judge Boyd N. Boland on 10/3/08. (jmp, ) (Entered: 10/03/2008)
157 Unopposed MOTION to Amend/Correct/Modify 99 Amended Complaint, by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Plaintiffs Fourth Amended and Supplemental Class Action Complaint)(Robertson, Amy) (Entered: 10/03/2008)

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10/03/2008 10/03/2008 10/06/2008
10/22/2008
10/22/2008 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/18/2009 02/18/2009 02/18/2009

158 Unopposed MOTION to Certify Class by Plaintiffs Daniel Wilson, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Declaration of Kevin W. Williams, # 3 Declaration of Carrie Ann Lucas, # 4 Declaration of Laura Hershey, # 5 Declaration of Daniel Wilson)(Robertson, Amy) (Entered: 10/03/2008)
159 Joint MOTION for Order to Approve Class Action Settlement Agreement and for Fairness Hearing by Plaintiffs Daniel Wilson, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Exhibit 1, # 2 Declaration of Amy F. Robertson, # 3 Declaration of Kevin W. Williams, # 4 Declaration of Robert Wheeler, # 5 Declaration of Elizabeth A. Starrs)(Robertson, Amy) (Entered: 10/03/2008)
160 MEMORANDUM regarding 157 Unopposed MOTION to Amend/Correct/Modify 99 Amended Complaint,Unopposed MOTION to Amend/Correct/Modify 99 Amended Complaint, filed by Daniel Wilson, Asiza Carolyn Kolene Lucas, Adrianne Emily Monique Lucas, Heather Rebekah Renee Lucas, Carrie Ann Lucas, Laura Hershey, Colorado Cross−Disability Coalition. Motion is referred to Magistrate Judge Boyd N. Boland by Judge Marcia S. Krieger on 10/6/08. (Text Only Entry − No Document Attached)(msksec, ) (Entered: 10/06/2008)
161 ORDER finding as moot 131 Motion for Partial Summary Judgment; finding as moot 133 Motion for Summary Judgment; finding as moot 147 Motion for Reconsideration ; granting 157 Motion to Amend/Correct/Modify; granting 158 Motion to Certify Class; granting 159 Motion for Order. Fairness hearing is set for February 23, 2009, at 4:00 p.m. Signed by Judge Marcia S. Krieger on 10/22/08.(msksec, ) (Entered: 10/22/2008)
162 Utility Setting/Resetting Deadlines/Hearings: Pursuant to the Court's Order at docket entry #161, a Fairness Hearing is set for 2/23/2009 at 04:00 PM in Courtroom A 901 before Judge Marcia S. Krieger. Text only entry − no document attached. (msksec, ) (Entered: 10/22/2008)
163 NOTICE of Change of Address by Amy Farr Robertson (Robertson, Amy) (Entered: 02/06/2009)
164 Unopposed MOTION For Extension of Time by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 02/06/2009)
165 ORDER granting 164 Unopposed Motion for Extension of Time to file joint motion for final approval and unopposed fee petition to February 6, 2009. No further extensions will be granted, by Judge Marcia S. Krieger on 2/6/09.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (msksec, ) (Entered: 02/06/2009)
166 ORDER AMENDING 165 Order on Motion for Extension of Time: Extension is granted up to and including February 18, 2009, by Judge Marcia S. Krieger on 2/6/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(msksec, ) Modified on 2/6/2009 to reflect due date (wjc, ). (Entered: 02/06/2009)
167 Joint MOTION for Order to for Final Approval of Class Action Settlement Agreement by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Exhibit 1, # 2 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 02/18/2009)
168 Unopposed MOTION for Attorney Fees and Costs by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 02/18/2009)
169 DECLARATION of Amy F. Robertson regarding Joint MOTION for Order to for Final Approval of Class Action Settlement Agreement 167 , Unopposed MOTION for Attorney Fees and Costs 168 by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas,

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02/18/2009
02/18/2009
02/20/2009 02/23/2009

Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Robertson, Amy) (Entered: 02/18/2009)
170 DECLARATION of Kevin W. Williams regarding Joint MOTION for Order to for Final Approval of Class Action Settlement Agreement 167 , Unopposed MOTION for Attorney Fees and Costs 168 by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Robertson, Amy) (Entered: 02/18/2009)
171 DECLARATION of Robert Wheeler regarding Joint MOTION for Order to for Final Approval of Class Action Settlement Agreement 167 , Unopposed MOTION for Attorney Fees and Costs 168 by Plaintiffs Heather Rebekah Renee Lucas, Adrianne Emily Monique Lucas, Daniel Wilson, Asiza Carolyn Kolene Lucas, Colorado Cross−Disability Coalition, Laura Hershey, Carrie Ann Lucas. (Robertson, Amy) (Entered: 02/18/2009)
172 NOTICE of Entry of Appearance of Meredith A. Kapushion by Andrew Scott Ford on behalf of Semple Brown Design, P.C. (Ford, Andrew) (Entered: 02/20/2009)
173 Minute Entry for proceedings held before Judge Marcia S. Krieger: Fairness Hearing held on 2/23/2009. Joint Motion for Order for Final Approval of Class Action Settlement Agreement is granted. Unopposed Motion for Attorney Fees and Costs is granted and awards $295,000 in attorneys' fees and costs to the plaintiffs. The Clerk of Court is directed to close the case. (Court Reporter Paul Zuckerman.) (wjc, ) (Entered: 02/24/2009)