SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
800 NORTH CHARLES STREET LIMITED PARTNERSHIP, LLLP
THE PALAMINO CORPORATION
DEPARTMENT OF JUSTICE COMPLAINT NUMBER 202-35-54
Settlement Department of Justice Press Release
A. BACKGROUND AND PARTIES
1. This matter was initiated by a complaint filed with the United States against The Palamino Corporation, which owns and operates a restaurant, known as Donna's ("Donna's"), located at 800 North Charles Street, Baltimore, MD in a building owned by the 800 North Charles Street Limited Partnership, LLLP ("The Limited Partnership"). The complainant alleged that Donna's was in violation of title III of the Americans with Disabilities Act, 42 USC §§ 12181-12189, ("ADA") because the entrance to the restaurant (by several steps) was not accessible to individuals using wheelchairs. The investigation further determined that there were other areas of the restaurant and the building lobby that were in violation of the ADA.
2. The Attorney General is authorized under section 308(b)(1) of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12188(b)(1), to investigate complaints and bring a civil action under title III in any situation where a pattern or practice of discrimination is believed to exist or where a matter of general public importance is raised.
3. Donna's is a restaurant open to the public and is a place of public accommodation covered by title III of the ADA. The 800 North Charles Street Limited Partnership leases to a place of public accommodation and is covered by title III of ADA. 42 U.S.C. §§ 12181(7), 12182(a); 28 C.F.R. §§36.104, 36.201. In addition to Donna's, the 800 North Charles Street building houses two other restaurants – Indigma, across the lobby from Donna's on the first floor, and My Thai, which is the sole premises on the basement level.
4. The United States investigated the complaint and found a number of violations of the barrier removal and alterations requirements of title III of the ADA, 42 U.S.C. §§12182(b)(2)(A)(iv), 12183. The violations found are outlined on Attachments A and B. The United States determined that the most viable wheelchair accessible entrance to Donna's could be created by installing a lift on the stairs between the first floor lobby (from which Donna's can be accessed) and the street level inside the entry on North Charles Street. The City of Baltimore Fire Marshall approved such a lift, as set forth in Attachments C and D.
5. During the period of the investigation by the United States, the Maryland Commission on Human Relations investigated complaints it received alleging that Donna's and the basement restaurant (My Thai) were not accessible to individuals with disabilities. The parties explored installing a lift on the stairs between the street level inside the entry on North Charles Street and the basement level. However, the City of Baltimore Fire Marshal did not approve the installation of a lift down to the basement level, as set forth in Attachment C. Consequently, the parties determined that a lift to the basement would not be readily achievable.
6. Nothing contained herein constitutes an admission of wrongdoing by Donna's or the Limited Partnership. However, in order to avoid unnecessary and costly litigation, the parties have agreed to resolve this action as set forth below.
B. TERMS OF AGREEMENT
7. The Limited Partnership shall, upon the effective date of this Agreement, promptly apply for and diligently pursue obtaining the necessary permits and licenses to install an inclined platform lift in accordance with the terms herein. The Limited Partnership shall provide the United States copies of all permits and licenses received for the lift. Within 120 days after such permits and licenses have been issued, the Limited Partnership agrees to install an inclined platform lift on the stairs between the first floor lobby (from which Donna's can be accessed) and the street level inside the North Charles Street entry, in accord with the specifications attached hereto as Attachment E, which the parties agree comply with 28 CFR Part 36, App. A § 4.11 (Standards for Accessible Design). The lift shall facilitate unassisted entry, operation, and exit. The Limited Partnership agrees to maintain the lift as required by 28 CFR § 36.211.
8. Within 120 days after all permits and licenses for the lift have been issued, the Limited Partnership shall develop a procedure to enable a person who uses a wheelchair to exit the building if the platform lift malfunctions while the person is in the building; and shall arrange for the training of building staff and employees of the building's restaurant tenants on this procedure, which may include manual assistance to the affected individual.
9. Within 150 days of the effective date of this Agreement, the Limited Partnership agrees to make the modifications to entrance signage and the toilet rooms required to remedy the violations set forth in Attachment A, in compliance with 28 CFR Part 36, App. A.
10. Within 90 days of the effective date of this Agreement, The Palamino Corporation agrees to make all modifications to the interior of the restaurant required to remedy the violations set forth in Attachment B, in compliance with 28 CFR Part 36, App. A.
11. Within 60 days of completion of the above modifications, the Limited Partnership and The Palamino Corporation, respectively, will submit a report to the Department concerning their respective compliance with this Agreement, including pictures of all areas modified according to this Agreement. The report shall be sent by overnight delivery to Amanda Maisels at the following address: U.S. Department of Justice, Disability Rights Section, 1425 New York Avenue, NW, Washington D.C. 20005.
12. Provided that the Limited Partnership complies with its obligations under this Agreement, the Department agrees that it will not open any investigations of 800 North Charles Street Limited Partnership with regard to disability access of the 800 North Charles Street building during the term of this Agreement.
C. IMPLEMENTATION AND ENFORCEMENT
13. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from taking more formal enforcement action in this matter except as provided in paragraph 14.
14. The United States may review compliance with this Agreement at any time. If the United States believes that the Limited Partnership and/or The Palamino Corporation has failed to comply in a timely manner with any requirement of this Agreement, the United States will so notify the appropriate Party in writing and it will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the Limited Partnership and/or The Palamino Corporation it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce Title III of the ADA.
15. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
16. This agreement shall be binding on the Limited Partnership and The Palamino Corporation. In the event that, prior to the completion of the terms set forth in paragraphs 7 through 11 above, either the Limited Partnership or The Palamino Corporation seeks to transfer or assign all or part of its interest in the 800 North Charles Street property or the lease, respectively, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale or lease the Limited Partnership and/or The Palamino Corporation shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this Agreement.
17. The effective date of this Agreement is the date of the last signature below.
18. This Agreement constitutes the entire agreement between the parties on the matters relating to DJ# 202-35-54, and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the Limited Partnership's and The Palamino Corporation's continuing responsibility to comply with all aspects of the ADA with respect to matters not addressed in this Agreement.
19. This Agreement will remain in effect for three years from the effective date of this Agreement.
800 NORTH CHARLES STREET
LIMITED PARTNERSHIP, LLLP
Mark Caplan, Owner
701 Cathedral St.
Baltimore, MD 21201
Alan Hoff, Esq.
Sellman Hoff, LLC
201 N. Charles Street, Suite 1331
Baltimore, MD 21201
Acting Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
PHILIP L. BREEN,
Special Legal Counsel
Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202) 305-9775 (fax)
Date: September 17, 2009
THE PALAMINO CORPORATION
Alan Hirsch, Owner
800 n. Charles St.
Baltimore, MD 21201
Charles Hirsch, Esq.
Ballard Spahr Andrews & Ingersoll, LLP
300 E. Lombard St., 19th Floor
Baltimore, MD 21202-5600
I. ENTRANCE SIGNAGE
- There must be signage with the International Symbol of Accessibility at the Charles Street entrance, and a directional sign at the Madison Street entrance indicating the location of the nearest accessible entrance, as of the date that the Charles Street entrance is made accessible. 28 CFR Part 36, App. A ("Standards") §4.1.2(7)(c) and 4.30.
- There must be a communication device at the Charles Street entrance by which a person can contact the My Thai restaurant in the basement to order food to be brought up to the sidewalk.
II. TOILET ROOMS
- There are two toilet rooms, both of which are unisex. Both toilet rooms need accessible signage and the sign for the accessible toilet room must include the international symbol of accessibility. The signs for both toilet rooms must have raised characters between 5/8 inch and 2 inches in height, Braille, and be located on the latch side of the door at 60 inches to the centerline of the sign. Standards §4.30.
Left-Side Toilet Room
- The threshold at the door exceeds ½ inch. Raised thresholds at accessible doorways may not exceed ½ inch and must be beveled with a slope no greater than 1:2. Standards §4.13.8.
- The back grab bar is 24 inches long rather than at least 36 inches long, and 37 inches above the finished floor to the top of the grab bar, rather than 33-36 inches high. The grab bar starts 8 inches from the side wall rather than 6" maximum. Standards § 4.16.4 and Figure 29(a).
- The side grab bar is 32 inches long rather than at least 42 inches long, and 37 inches above the finished floor to the top of the grab bar, rather than 33-36 inches high. It must be located 12 inches maximum from the rear wall and 54 inches minimum from the rear wall. Standards § 4.16.4 and Figure 29(b).
- The centerline of the toilet is 22-½ inches from the wall instead of 18 inches. Standards § 4.16 and Figure 28.
- The top of the lavatory rim is mounted 36-¼ inches above the finish floor rather than no higher than 34 inches. Standards § 4.19.2.
- There is no insulated or otherwise configured protection against patron contact at the hot water and drain pipes under the lavatory. Standards § 4.19.4.
- The bottom edge of the reflecting surface of the mirror is mounted at 41" rather than no higher than 40" above the finish floor. Standards § 4.19.6.
- The door hook is higher than 54" from the floor, which is the maximum height permitted for side reach. Standards §§ 4.25.3, 4.2.6.
- No access aisle of 36 inches wide is provided along side of the fixed coffee bar counter. As the clear distance from the edge of the counter to the wall is approximately 48 inches, an aisle approximately 30 inches wide would be created when patrons are seated on the stools. Standards §5.3. This configuration is acceptable as long as the employees are trained to ask patrons to move if, for example, a person with crutches wishes to use the counter.
- The pick-up counter with a cash register is 49 inches high above the finished floor. A portion of the counter must be at least 36 inches long and not more than 36 inches high. Standards §7.2(1).
- The change in level from the interior serving area to the dining room is approximately 3/4 inch. Raised thresholds (or floor level changes) on accessible routes are to be no more than ½ inch and beveled with a slope no greater than 1:2. For existing conditions in alterations, if the existing thresholds are 3/4 inch high or less, and have (or are modified to have) a beveled edge on each side, they may remain. Standards §§4.1.6(3)(d)(ii) and 4.5.2.
- Access to the locked toilet rooms is via the use of a dog or turtle emblem key on a key ring stored on a hook in the vicinity of the cashier counter. The reach range to retrieve the key ring needs to be within 48 inches above the finish floor for a front approach, or within 54 inches for a side reach. The key for the accessible toilet room should indicate that it is for an accessible toilet room. Standards §§4.2.5 and 4.2.6; Figures 5 and 6.
U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYA
950 Pennsylvania Avenue. N. W.
Washington. DC 20530
Far hand delivery/ over light mail:
Disability Rights Section
1425 New York Avenue. N.W.
Washington. DC 20005
July 7, 2008
BY FAX and U.S. MAIL
City of Baltimore Fire Department
Office of the Fire Marshal
410 E. Lexington Street
Baltimore, MD 21202
Re: 800 North Charles St., DJ# 202-35-54
Dear Mr. Carr:
This letter is to confirm what you have told me in our telephone conversations on July 3, 2008 and June 2, 2008, with regard to the proposal from 800 North Charles Street Limited Partnership to install an inclined lift at 800 North Charles Street. The purpose of the proposed lift is to provide access for persons with disabilities to the building located at 800 North Charles Street and to resolve investigations by the Department of Justice and the Maryland Commission on Human Relations regarding disability access to that building. Because the Fire Marshal's approvals and disapprovals are essential to the resolution of these investigations, it is important to document them in writing for all of the parties concerned.
In Apri1 2008 the 800 North Charles Street Limited Partnership submitted to you a proposal to install an inclined lift that would provide access to the basement and first level of 800 North Charles Street. The lift would travel along the staircase and stop on three levels – the Charles' Street level, the basement level, and the first floor level on which Donna's is located. You informed me by telephone on June 2, 2008, that the Fire Marshal would not approve a lift between the street entrance and the basement level at 800 North Charles Street because of concerns about egress of patrons from the basement in the event of an emergency.
I consequently asked you to consider approving a lift that would travel only between the street entrance and the first level, which you agreed to do. I provided additional information to you about the proposed lift, and the 800 North Charles Street Limited Partnership submitted a new plan illustrating a lift that would travel between the street entrance and the first level. On July 3, 2008, you informed us that the Fire Marshal approves the plan submitted by the 800 North Charles Street Limited Partnership so long as it complies with the following criteria:
- The lift, in a closed position, extends no more than approximately 12-13" from the wall;
- The lift will, run along the wall on the north side of the staircase;
- The lift will park at the Charles Street entrance level; and
- The lift will automatically return to its parking station after the passenger alights on the
first level, and will close automatically.
We appreciate your assistance in this matter. If all of the information in this letter is materially correct, please sign below. If anything is incorrect, and it is possible to write the correction on the letter, please do so, initial your correction, and sign below. If you prefer to inform me of the correction; I will redraft and resend the letter to you. Thank you again for assisting us in resolving this matter.
cc: Alan Hoff, Esq.
Pat Wood, Esq., Maryland Commission on Human Relations
I agree that this letter accurately represents the position of the City of Baltimore Fire Marshal with respect to the proposals to install an inclined lift at 800 North Charles Street submitted to me in April 2008 and June 2008 by the 800 North Charles Street Limited Partnership.
City of Baltimore Fire Department
Construction Solutions Inc.
September 24, 2008
Lieutenant John Carr
Baltimore City Fire Marshall
417 E. Fayette Street
Baltimore, Maryland 21202
Dear Lieutenant Carr,
Following up on our conversations pertaining to this matter, this will confirm that you are aware, and it is acceptable that the ADA lift we are planning to install in the lobby of 800 N. Charles St, Baltimore MD, 21201 does not return to the up-right or resting positions automatically. Accordingly, Item #4 in the letter sent you by the U.S. Department of Justice dated July 7, 2008 is no longer required.
In view of this, a representative for the Owner of the building located at 800 N. Charles Street is required to instruct the building staff, and one or more employees of the upper lobby restaurants (Indigma and Donna's) on the procedure for returning the lift to the proper up-right and resting positions. The building staff and restaurant employees are to understand that these instructions are to be 'implemented promptly if the lift is found not to be in. the up-right and resting positions. These instructions are also to be posted conspicuously in the lobby of building.
Please sign this letter below (and the additional attached copy) to confirm the above. We will need this letter to provide to the federal and state agencies requesting that we install the lift. Thank you for your consideration in this matter. If you have any questions please feel free to contact me at 443-465-9595.
Baltimore City Marshall
7332 Chesapeake Road, Baltimore, MD 21220 443-465-9595 Fax 410-335-4520 email@example.com
4001 E. 136 Street
Grandview, MO 84030
WHEEL CHAIR LIFTS
PART 1 GENERAL
- An inclined platform (wheel chair) lifting device, manufactured by Access Industries, designed to provide access within a building for mobility impaired persons. Lift consists of tubular guide rail system and fold-up platform selected and dimensioned to provide building access requirements indoors.
- Lift shall be designed, manufactured and installed in accordance with the following standards:
- American National standards Institute (ANSI).
- American Society of Mechanical Engineers (ASME)
- ADA Accessibility Guidelines (ADAAG).
- Intertek Tasting Services (ETL).
- International Building Code (IBC).
- National Electrical Code (NEC).
- American Society for Testing Materials (ASTM):
- American Welding Society (AWS).
1.03 SYSTEM DESCRIPTION
- Drive System: Twin rack and pinion.
- Control System:
- Battery powered SoftStart with½ hp. 24 VDC, instant reversing, 1750 rpm motor with self locking worm gear, two 12V, 33AH, sealed no maintenance batteries with 24V 3.3 amp SmartCharge™ battery charger.
- Platform Configuration: straight-thru
- Maximum Travel: 55 feet for battery powered.
- Rated Load: 450 lbs. with minimum safety factor of 5X.
- Rated Speed: 18 fpm with rated load.
- Platform Size: 30''x 48'' power fold-up platform with fold-up controls on each and of chassis.
- Main Power Supply Wiring: Electrical contractor shall provide 115 VAC, single phase, 15 amp, 60Hz power circuit.
- Non-slip surface on platform floor and ramps.
- Operating Features:
- Platform Controls: Hand-held directional paddle switch, on/off key switch, emergency stop switch and illuminated alarm button.
- Landing Controls: Directional paddle switch, on/off key switch and emergency stop located at each landing.
- Passenger Restraining Arms: powered fold-up arms.
- Constant pressure operation.
- Grounded electrical system with upper, lower and final limit switches and 24 V operating controls.
- Overspeed safety device.
- Platform underpanel equipped with obstruction sensors.
- Automatic powered fold-up access ramps with obstruction sensors at entrances on platform.
- Grab rail on chassis.
- Fold-up seat with seat belt on chassis
- Audio visual alert
- Track Infill Fascia Panels (not applicable):
- Pedestrian handrail on track
- Manual lowering device.
1.04 QUALITY ASSURANCE
- Manufacturer: Provide wheelchair lift manufactured by a firm with a minimum of 10 years experience in fabrication of inclined platform lifts equivalent to those specified.
- All designs, clearances, workmanship and material unless specifically accepted, shall be in accordance with all codes having legal jurisdiction.
- All load ratings and safety factors shall meet or exceed those specified by all governing agencies with jurisdiction and shall be certified by a professional engineer.
- Lift shall be subject to applicable state, local and city approval prior to installation and subject to inspection after installation. Determination of and adherence to these regulations is the responsibility of the lift contractor.
- Welders certified in accordance with requirements of AWS D1.1 shall perform all welding of all parts.
- Substitutions: No substitutions permitted.
- Warranty. Manufacturer shall warrant the Carrier-Lift® inclined platform lift for a period of one year after installation.
- The Carrier-Lift® inclined platform lift must be maintained in accordance with manufacturers
PART 2 PRODUCTS
- Provide Carrier-Lift® inclined platform lift model 2000 (battery powered) manufactured by Access Industries.
- Contact: 4001 E. 138th Street, Grandview, MO; Telephone: 800-925-3100; Fax: 816-763-4467; Email: firstname.lastname@example.org; Website: http://www.accessind.com
- Track: 1.875 diameters x .156" steel tubing.
- Pasts: 2" x 4" X 3/16 steel tubing.
- Platform: 16 ga. steel plate on 1-¼" square x 11 ga. steel tubing.
- Chassis Frame: 1" x 2″ x 16 ga. stool tubing.
- Passenger Restraining Arms: 1-¼" diameter x 16 ga. steel tubing.
- Access Ramp: 11 ga. steel plate.
- Components shall be prepared with 1) alkaline detergent wash. 2) clear water rinse, 3) iron
phosphate coating, 4) clear water rinse and finished with electrostatically applied and baked
thermostatic powder coat-finish. Standard color is ivory.
2.04 ELECTRICAL SYSTEMS
- The electrical contractors shall provide a 116V. single phase. 15 amp. 60 Hz electrical power source connection.
- Electrical piping and wiring supplied by others.
- Final electrical connections performed by lift contractor.
PART 3 EXECUTION
- 3.01 ACCEPTABLE INSTALLERS.
- Installers shall be experienced in performing work of this section or who have specialized in work comparable to that required for this project.
- Installers shall be certified and trained by the manufacturer.
- Use 'field dimensions and approved manufacturer's shop drawings to examine substrates, supports and other conditions under which this work is to be performed. Do not proceed with work until unsatisfactory conditions are corrected.
- The Carrier-Lift® inclined platform lift shall be installed in accordance with manufacturers
instructions and as specified and approved by architect.
- Electrical piping and wiring by others. Final Electrical connections and lift adjustments by lift
- The lift contractor shall make a final check of the lift's operation with the Owner or Owner's
representative present prior to turning the lift over for use. The lift contractor shall determine that
operating and safety devices are functioning properly.
END OF SECTION
Notes: Intent of specification is to broadly outline equipment required but does not cover details of design and construction.
Dimensions and specifications are subject to constant change and continually evolving codes and products applications. For additional technical information contact Access Industries at (800) 925-3100 or www.accessind.com.
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October 8, 2009