SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

MARCO POLO RESTAURANT AND TAVERN

UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT,

DJ NUMBER 202-48-176

 


 

BACKGROUND

  1. This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (“the Department”) against Marco Polo Restaurant and Tavern (“Marco Polo”). Department of Justice Complaint Number 202-48-176 alleges that the restaurant lacked an accessible entrance and that it failed to remove architectural barriers where such removal was readily achievable. The ADA requires owners and operators of existing places of public accommodation, such as Marco Polo, to remove barriers to access to the extent that it is readily achievable to do so. 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304.
  2. The complaint was initiated in October 2006 after the complainant, and his wife, who uses a wheelchair, went to Marco Polo Restaurant for dinner. The complainant alleges that due to the lack of an accessible entrance his wife experienced great difficulty entering and exiting the restaurant.
  3. Marco Polo restaurant, constructed in 1934 and located in Summit, NJ, is an establishment that serves food and beverages and as such is a place of public accommodation under title III of the ADA. See 42 U.S.C. § 12181(7)(b).
  4. Marco Polo restaurant has advised the United States that in order to provide a ramp at the Aubry Street north door, it will be required to obtain authorization from the City of Summit Council to intrude upon the City’s right-of-way.
  5. The Attorney General is authorized to enforce title III of the ADA by seeking the removal of barriers to access where doing so is readily achievable. See 42 U.S.C. § 12188(a)(2). In addition, 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. See Id. at 42 U.S.C.
    § 12188(b)(1)(B).
  6. In order to avoid the burden and expense of further investigation and possible litigation, Marco Polo has agreed to enter into this Settlement Agreement. In light of this Agreement, the parties have determined that Department of Justice Matter Number 202-48-176 can be resolved without litigation and have agreed to the terms of this Settlement Agreement.

AGREEMENT

  1. By no later than one year from the execution of this Settlement Agreement, Marco Polo shall remove the barriers to access that are identified in Appendix A to this document, by taking the steps listed under the “Solution” heading in Appendix A.
  2. In the event that Marco Polo Restaurant is required to obtain, for any of the steps to remove barriers to access listed in Appendix A, permits or approval, Marco Polo Restaurant will seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Marco Polo Restaurant for obtaining the permit or approval, or is denied, Marco Polo Restaurant will promptly notify counsel for the Department. The parties will thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question. This agreement does not require Marco Polo Restaurant to take any steps to remove barriers to access for which permits or other approvals are necessary, where Marco Polo Restaurant has timely and in good faith taken all necessary steps to secure such permits or approvals, but such permits or approvals have been denied.
  3. By no later than three months from the execution of this Settlement Agreement, Marco Polo shall provide the Department with copies of its proposed plans to comply with paragraph 7 of this Agreement. Marco Polo agrees to complete its barrier removal in a manner that is readily accessible to and usable by individuals with disabilities consistent with title III of the ADA, 42 U.S.C. §§ 12181-89, and the Department's title III regulation, 28 C.F.R. pt. 36, including the Standards for Accessible Design, Appendix A ("the Standards").
  4. The Department shall promptly review Marco Polo’s proposed plans and advise Marco Polo, in writing, of any identified concerns within 30 days of receipt of the proposed plans. Marco Polo shall promptly amend its plans to address any issues identified by the Department, and shall submit revised plans to the Department by 60 days after it has received the Department’s report. If the parties are unable to agree on the plans within one year of their initial submission by Marco Polo to the Department, then the provisions of paragraph 13 apply, with no further requirement to confer under that paragraph.
  5. Marco Polo agrees to:
    1. ensure that any alteration made after the effective date of this Agreement to any part of the facility is, to the maximum extent feasible, readily accessible to, and usable by individuals with disabilities, in compliance with 42 U.S.C.
      § 12183(a)(2), 28 C.F.R. §§ 36.402-36.404;
    2. comply with the continuing obligation to remove architectural barriers where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A) (iv); and
    3. maintain in operable working condition those features of facilities and equipment that are required to be accessible by persons with disabilities under the ADA, its implementing regulation, or this Agreement.
  6. By no later than 30 days after it receives a signed Release, the text of which is contained in Appendix B to this Agreement, Marco Polo shall compensate the complainant in this matter by delivering a certified check, by overnight mail, in the amount of $750.00 – made out to the complainant – to John Wodatch, Section Chief, Disability Rights Section, U.S. Department of Justice; attention: Alyse Bass.

REPORTS

  1. By no later than one month after all construction work is complete, Marco Polo shall submit a written report to the Department summarizing the actions Marco Polo has taken pursuant to this Agreement. The report shall include photographs, showing measurements of all new or altered accessible features and spaces, and shall also include other relevant evidence of actions taken.

ENFORCEMENT

  1. The Department may review compliance with this Agreement at any time. The Department shall make every effort to conduct any inspection to determine compliance with this Agreement at times that are mutually agreeable to Marco Polo, so that Marco Polo can ensure that the inspections cause no disruptions or only minimal disruptions to its operations.
  2. If the Department believes that this Agreement or any of the Agreement’s requirements have been violated, the Department and Marco Polo shall confer in good faith in order to attempt to resolve the issue or alleged violation. If the parties are unable to reach a resolution, after having conferred in good faith, the Department may then institute a civil action in federal district court to enforce this Agreement or the requirements of title III following written notice to Marco Polo of possible violations and a period of 30 days in which Marco Polo has the opportunity to cure the alleged violations.
  3. Failure by the Department to enforce this entire Settlement Agreement or any of its provisions or deadlines shall not be construed as a waiver of the Department’s right to enforce other deadlines and provisions of this Agreement.
  4. This Agreement shall be binding on Marco Polo, its agents, its employees, and any successors or assigns. In the event that Marco Polo seeks to transfer or assign the restaurant, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale, Marco Polo shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.

IMPLEMENTATION

  1. This Agreement is a public agreement.
  2. The effective date of this Agreement is the date of the last signature below.
  3. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, shall be enforceable under its provisions. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and Marco Polo shall engage in good faith negotiations in order to adopt amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
  4. This Settlement 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 Marco Polo’s continuing responsibility to comply with all aspects of title III of the ADA, in particular, the obligation to remove barriers to access for people with disabilities where it is readily achievable and to design and construct new facilities in compliance with the ADA, including the Standards.
  5. In consideration of the terms of this Agreement and Marco Polo’s promises contained herein, the Department of Justice agrees to refrain from undertaking further investigation into or from filing civil suit in this matter at this time, except as provided in paragraph 15.
  6. This Settlement Agreement shall remain in effect for three years from its effective date.
  7. The person signing this document for Marco Polo represents that he or she is authorized to bind Marco Polo to this Settlement Agreement.

FOR MARCO POLO RESTAURANT & TAVERN FOR THE UNITED STATES:
 
GRACE CHUNG BECKER
Acting Assistant Attorney General
Civil Rights Division
___________________________        
AGAPIOS KYRITSIS, PRESIDENT
Marco Polo Restaurant & Tavern

 

___________________________        
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
L. IRENE BOWEN, Deputy Chief
ALYSE S. BASS, Senior Trial Attorney
MICHELE ANTONIO MALLOZZI, Architect
Disability Rights Section
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W. - NYA
Washington, DC 20530
(202) 307-2227

 

                    April 4, 2008                    
Date
                   April 15, 2008                    
Date



 




October 09, 2008