SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN THE UNITED STATES OF AMERICA AND
GARIBALDI’S INC., OWNER AND OPERATOR
OF THE BISTRO SAVANNAH RESTAURANT
AND GARIBALDI’S RESTAURANT
IN SAVANNAH, GEORGIA
UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 202-20-17


BACKGROUND

  1. This matter was initiated by a complaint filed under title III of the American with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (United States) against Garibaldi’s, Inc., the owner and operator of the Bistro Savannah Restaurant (Bistro) and Garibaldi’s Restaurant in Savannah, Georgia. The complainant alleged that Bistro is inaccessible to people with disabilities because it has a six inch step at its entrance.
  2. The United States conducted an on-site inspection of Bistro and determined that making its entrance accessible would not be readily achievable at this time because of space constraints imposed by the narrow sidewalk outside Bistro’s entrance. The United States determined that it would, therefore, be appropriate for Garibaldi’s, Inc. to make Bistro’s goods and services available to people with mobility disabilities who cannot access the restaurant through alternative means. 42 U.S.C. § 12182(b)(2)(A)(iv), (v); 28 C.F.R. §§ 36.304, 36.305,
  3. In addition to owning and operating Bistro, Garibaldi’s, Inc. also owns and operates Garibaldi’s, a sister restaurant located less than 100 feet away from Bistro. The United States’ investigation revealed that the owner and operator could comply with its obligation to make Bistro’s goods and services accessible through alternative means if it: (a) made Bistro’s menu available at Garibaldi’s without any additional costs or delay for people with mobility disabilities who could not access Bistro, (b) provided appropriate signage at Bistro’s entrance notifying people with disabilities about the option of obtaining Bistro’s menu at Garibaldi’s, and (c) removed the barriers to access for people with disabilities identified during the United States’ on-site survey of Garibaldi’s.
  4. The parties (Parties) to this Settlement Agreement (Agreement) are Garibaldi’s, Inc. and the United States.
  5. The Attorney General of the United States (Attorney General) is authorized to enforce title III of the ADA by seeking damages, civil penalties, and full compliance with title III’s provisions, including requiring the owners and operators of a place of public accommodation to make it readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12188(b); 36 C.F.R. §§ 36.504(a)(1)(iii), (2), and (3). The Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. § 12188(b)(1)(B).
  6. Both the Bistro and Garibaldi’s, located in Savannah, Georgia, are in historic buildings that are over 100 years old. The dining areas, the primary function areas, were renovated prior to the effective date of the ADA and have not been altered since the ADA became effective. Both facilities are establishments serving food and drink, and are, therefore, places of public accommodation under title III of the ADA. 42 U.S.C. § 12181(7)(B); 28 C.F.R. § 36.104.
  7. Garibaldi’s, Inc. owns and operates both the Bistro and Garibaldi’s and is, therefore, a public accommodation within the meaning of the ADA. 42 U.S.C. § 12181(7)(B); 28 C.F.R. § 36.104.
  8. Garibaldi’s, Inc., (Owner and Operator) agrees to undertake the barrier removal steps outlined in this Agreement, to ensure that individuals with disabilities, including individuals who have mobility disabilities, have an opportunity equal to that of others to enjoy the Bistro’s goods, services, and amenities. Because it is not readily achievable to make the entrance to the Bistro accessible at this time, the Owner and Operator will make the alterations listed in paragraphs 11 through 14, below, at Garibaldi’s and will offer the Bistro menu there. All remedial actions listed in paragraphs 11 through 14 will be completed within 180 days of the effective date of this agreement. References below are to the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (Standards). The Owner and Operator will use the technical requirements and, where appropriate, the scoping requirements of the Standards as a guide in removing barriers to access for people with disabilities.
  9. The Parties have determined that complaint 202-20-17 filed with the United States can be resolved through compromise and without litigation. Accordingly, each agrees to the terms set forth in this Agreement.
  10. In consideration of, and consistent with, the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled “Implementation and Enforcement.”

REMEDIAL ACTION

  1. Owner and operator will remove the following barriers to access at Garibaldi’s and acknowledges that it is readily achievable to do so:
    1. The main entrance has a 1 inch change in level at the threshold to the door. Provide an accessible door with a threshold that is no greater than ¼ inch, or is no greater than ½ inch and is beveled with a slope no greater than 1:2. Standards §§ 4.13.8, 4.5.2.
    2. First Floor Men’s Toilet Room

      (1) The toilet room lacks accessible signage. Provide a toilet room sign with the International Symbol of Accessibility and raised and Braille characters mounted on the wall adjacent to the latch side of the door with the centerline of the sign 60 inches above the finished floor and situated such that a person can approach within 3 inches of the sign without encountering an obstruction or standing within a door swing. Standards §§ 4.1.2(7)(d), 4.30.1, 4.30.4, 4.30.5, 4.30.6, 4.30.7.

      (2) The force required to open the toilet room door is greater than 5 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).

      (3) The toilet room door swings into the required clear floor space at the lavatory. Ensure that no door swings into the required clear floor space at any accessible fixture. Standards § 4.22.2.

      (4) The toilet room has no accessible mirror. Provide a mirror with the bottom edge of its reflecting surface no more than 40 inches above the finished floor. Standards § 4.19.6.

      (5) The toilet centerline measures 19½ inches from the side wall. Provide a toilet with a centerline that measures 18 inches from the near side wall. Standards § 4.16.2, Fig. 28.

    3. Women’s First Floor Toilet Room

      (1) The toilet room lacks accessible signage. Provide a toilet room sign with the International Symbol of Accessibility and raised and Braille characters mounted on the wall adjacent to the latch side of the door with the centerline of the sign 60 inches above the finished floor and situated such that a person can approach within 3 inches of the sign without encountering an obstruction or standing within a door swing. Standards §§ 4.1.2(7)(d), 4.30.1, 4.30.4, 4.30.5, 4.30.6, 4.30.7.

      (2) The force required to open the toilet room door is greater than 5 pounds. Provide a door that requires no more than 5 pounds of force to open. Standards § 4.13.11(2)(b).

      (3) The toilet room has no accessible coat hook. Provide a coat hook at a maximum height above the finished floor of 48 inches for a forward approach or 54 inches for a side approach and that is accompanied by clear floor space of 30 by 48 inches that allows a forward or parallel approach by a person using a wheelchair. Standards §§ 4.25.2, 4.25.3, 4.2.4, 4.2.5, 4.2.6.

      (4) The toilet room has no accessible mirror. Provide a mirror with the bottom edge of its reflecting surface no more than 40 inches above the finished floor. Standards § 4.19.6.

    4. As an alternative to b and c above, provide a unisex accessible toilet room such that all of the room’s elements, including signage, door, door hardware, clear floor space, water closet, urinal (if provided), grab bars, lavatory, mirror, controls, and dispensers, comply with the Standards. Standards §§ 4.13, 4.16, 4.18, 4.19, 4.26, 4.27, 4.30, Figs. 28, 29.
    5. Accessible directional signage has not been provided at the inaccessible second floor toilet rooms directing people with disabilities to the accessible toilet rooms. Provide accessible directional signage with the International Symbol of Accessibility at inaccessible toilet rooms indicating the location of the nearest accessible toilet room, and provide accessible signage with the International Symbol of Accessibility at all accessible toilet rooms. Standards §§ 4.1.2(7)(d), 4.1.6(3)(e)(iii), 4.30.1, 4.30.2, 4.30.3, 4.30.5, 4.30.7.
  2. Within ten days following the effective date of this Agreement, the Owner and Operator will ensure that the Bistro menu is always available at Garibaldi’s and will post a sign at the entrance to the Bistro informing people with disabilities that they can access Bistro’s menu at Garibaldi’s without any additional cost or delay. The sign shall be printed in a bold font that is no smaller than 20 points in size on a contrasting background and shall be conspicuously posted and maintained so it is visible to people with disabilities who cannot enter Bistro.
  3. Owner and Operator shall ensure that Garibaldi’s is open and serving customers at all times that Bistro is open and serving customers.
  4. Owner and Operator shall ensure that all amenities available at Bistro (e.g., discounts) are equally available at Garibaldi’s.
  5. The ADA authorizes the Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Within thirty (30) days of the effective date of this Agreement, the Owner and Operator will send to the complainant by certified mail, return receipt requested, a check in the name of the complainant, in the amount of one thousand dollars ($1,000). Simultaneous with the mailing of the check, the Owner and Operator will provide to the United States a copy of the check for its records.
  6. In consideration for the compensatory damages set forth above, the United States agrees that within ten (10) days of its receipt of the Agreement signed by an authorized representative of Owner and Operator, it will obtain the complainant’s signature on the “Waiver and Release of Claims” form attached hereto as Attachment A. The United States will mail the original copy of the signed Waiver and Release of Claims form to Owner and Operator within fifteen (15) days of the United States’ receipt of same.

REPORTING

  1. Within seven months of the effective date of this Agreement, the Owner and Operator will submit a report to the United States summarizing the actions it has taken pursuant to this Agreement. The report will consist primarily of detailed photographs of the architectural modifications required by this Agreement and clearly show the dimensions of the various elements and spaces so that compliance with the ADA Standards may be determined.

IMPLEMENTATION AND ENFORCEMENT

  1. If at any time the Owner and Operator desires to modify any portion of this Agreement because of changed conditions making the performance impossible or impractical or for any other reason, the Owner and Operator will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
  2. The United States may review compliance with this Agreement at any time. If the United States believes that Owner and Operator has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Owner and Operator 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 thirty (30) days of the date it provides notice to Owner and Operator, it may institute a civil action in federal court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under law.
  3. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Owner and Operator to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written Agreement with the United States for an extension of the relevant time frame imposed by the Agreement.
  4. Failure by the United States to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
  5. This Agreement shall be binding on the Owner and Operator and the Owner and Operator’s agents and employees. In the event the Owner and Operator seeks to transfer or assign all or part of Owner and Operator’s interest in any facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale, the Owner and Operator shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
  6. A copy of this document or any information contained in it will be made available to any person by Owner and Operator or the United States on request.
  7. This Agreement constitutes the entire agreement among the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable under its provisions.
  8. This Agreement is limited to the facts set forth above and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the Owner and Operator’s continuing responsibility to comply with all aspects of the ADA, including the ongoing obligation to remove barriers to access for people with disabilities when it is readily achievable to do so and to maintain accessible features.
  9. This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
  10. The person signing for the Owner and Operator represents that he or she is authorized to bind the Owner and Operator to this Agreement.
  11. The effective date of this Agreement is the date of the last signature below.

FOR GARIBALDI’S INC.: FOR THE UNITED STATES:


  RENA J. COMISAC
Acting Assistant Attorney General
Civil Rights Division



_________________________________



                 11/28/07                                     
Date

By: _________________________________
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
JEANINE WORDEN, Deputy Chief
NAOMI MILTON, Supervisory Attorney
LINDSEY SPITLER, Contractor-Investigator
Disability Rights Section – NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 307-0663



                   2/8/08                                     
Date


 



ATTACHMENT A

WAIVER AND RELEASE OF CLAIMS

I, _________________________, hereby agree that in consideration of the terms set forth in the Settlement Agreement between the United States of America and Garibaldi’s, Inc., I hereby release Garibaldi’s, Inc., and all of its agents and employees, as well as any affiliated entities, successors and assignees, without limitation from any and all legal claims arising from or related to the facts and circumstances described in the Settlement Agreement resolving complaint number 202-20-17 filed with the United States under title III of the Americans with Disabilities Act. This includes, but is not limited to, all claims for monetary or equitable relief that I may have under federal, state, or local law. I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents, and choose to sign it of my own free will and not under duress.

AGREED TO AND SIGNED this _________ day of ______________________, 2007.



________________________________________
Signature of Complainant







October 09, 2008