LEV L. DASSIN
Acting United States Attorney
Southern District of New York

By: LAWRENCE H. FOGELMAN
CAROLINA A. FORNOS
DAVID J. KENNEDY
HEATHER K. McSHAIN

Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2800
 Fax: (212) 637-0033

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

UNITED STATES OF AMERICA,
                                             Plaintiff,

                         v.

AMSTERDAM HOSPITALITY, LLC;
DKE REALTY CORPORATION;
JENNAS LLC; ALI BABA HOTEL
CORPORATION; and BRITTANIA
54TH STREET HOTEL CORPORATION,

Defendants.

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CONSENT DECREE
and Judgement

09 Civ. 00344 (SAS)

ECF CASE

 

WHEREAS, the Americans with Disabilities Act of 1990 (“ ADA"), 42 U.S.C. §§ 12181 et seq., provides, among other things, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, 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," 42 U.S.C. § 12182(a);

WHEREAS, the ADA was enacted to address a "serious and pervasive social problem" of "discrimination against individuals with disabilities" in public accommodations, employment, transportation, and other areas of public life, 42 U.S.C. § 1210 1 (a);

WHEREAS, in passing the ADA, Congress expressly found that "individuals with disabilities continually encounter various forms of discrimination," including "the discriminatory effects of architectural, transportation and communication barriers" and "relegation to lesser services, programs [and] activities," id.;

WHEREAS, Title III of the ADA bans discrimination against persons with disabilities by owners or operators of places of public accommodation, 42 U.S.C. § 12182(a);

WHEREAS, "discrimination" under Title III of the ADA "includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities," 42 U.S.C. § 12183(a)(1), 28 C.F.R. § 36.401 (a);

WHEREAS, Title III of the ADA also establishes an ongoing requirement by such owners and operators to, among other things, remove architectural barriers to access where such removal is "readily achievable,"42 U.S.C. § 12182(b)(2)(A)(iv), 28 C.F.R. § 36.304; provide alternative methods to make goods and services available where it is deemed not readily achievable to remove barriers, 42 U.S.C. § 12182(b)(2)(A)(v), 28 C.F.R. § 36.305; make required alterations to facilities readily accessible to and usable by individuals with disabilities to the maximum extent feasible, 42 U.S.C. § 12183(a)(2), 28 C.F.R. §§ 36.402-404; provide appropriate and necessary auxiliary aids and services, 42 U.S,C. § 12182(b)(2)(A)(iii), 28 C.F.R. § 36.303; and reasonably modify policies and practices so as to ensure "full and equal enjoyment" of their goods and services by individuals with disabilities, 42 U.S.C. §§ 12182(a) and 12182(b)(2)(A)(ii), 28 C.F.R. §§ 36.201 and 36.302;

WHEREAS, the term "public accommodation" under the ADA includes "an inn, hotel, motel, or other place of lodging," 42 U.S.C. § 12181(7)(A);

WHEREAS, the ADA authorizes the United States Department of Justice to "undertake periodic reviews of compliance of covered entities," 42 U.S.C. § 12188(b)(1)(A)(i);

WHEREAS, on May 5, 2005, pursuant to its authority under 42 U.S.C. § 12188(b)(l)(A)(i), the United States Attorney's Office for the Southern District of New York (the "United States") commenced a review of certain hotels in New York City to determine whether these hotels, with respect to the specific areas reviewed, were operating in compliance with Title III of the ADA (the "Compliance Review");

WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of the Moderne Hotel (the "Moderne"), the owners and operators of the Ameritania Hotel (the "Ameritania"), and the owners and operators of the Amsterdam Court Hotel (the "Amsterdam Court") (the Moderne, Ameritania, and Amsterdam Court being referred to collectively herein as the "Hotels");

WHEREAS, the owners and operators of the Hotels are defendants Amsterdam Hospitality, LLC; DKE Realty Corporation; Jennas LLC; Ali Baba Hotel Corporation; and Brittania 54th Street Hotel Corporation (collectively, "Defendants");

WHEREAS, the United States filed a Complaint against Defendants on January 13, 2009, with respect to ADA accessibility at the Hotels, to enforce provisions of the ADA under Title III Of the ADA, 42 U.S.C. §§ 12181 et seq.; the implementing regulations, 28 C.F.R. Pt. 36; and the Standards for Accessible Design, 28 C.F.R. Pt. 36, App. A (the "Standards");

WHEREAS, Defendants deny liability for any violation of Title III of the ADA with respect to the Hotels and/or any other applicable law regarding the rights of individuals with disabilities;

WHEREAS, Defendants have appeared and consented to the entry of this Consent Decree without admitting the allegations of the complaint or any issue of fact or law to demonstrate their commitment to complying with Title III of the ADA; and

WHEREAS, the Government and Defendants agree that the entry of this Consent Decree, without further litigation at this time, is in the public interest;

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED,

as follows:

I.          APPLICATION AND PARTIES BOUND

1.         This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188 and 28 U.S.C. §§ 1331 and 1345.

2.         Each of the Hotels is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, each of the Hotels is "an inn, hotel, motel, or other place of lodging." 42 U.S.C. § 12181(7)(A); see 28 C.F.R. § 36.104.

3.         Each of the Defendants is an owner and/or operator of the Hotels and is bound by this Consent Decree because each owns or operates a Hotel, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

(a)    The Moderne is owned by defendant DKE Realty Corporation and operated by defendant Jennas LLC;

(b)    The Ameritania is owned and operated by defendant Britannia 54th Hotel Corporation;

(c)    The Amsterdam Court is owned and operated by defendant Ali Baba Hotel Corporation;

(d)    Amsterdam Hospitality LLC operates several hotels, including the Moderne, the Ameritania, and the Amsterdam Court.

Defendants are public accommodations within the meaning of Title HI of the ADA because they operate the Hotels, which are places of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104. Defendants DKE Realty Corporation; Britannia 54th Hotel Corporation; and Ali Baba Hotel Corporation may be referred to hereinafter as the "Owners. " Defendants Amsterdam Hotels LLC; Jennas LLC; Britannia 54th Hotel Corporation; and Ali Baba Hotel Corporation may be referred to hereinafter as the "Operators."

4.      This Consent Decree shall be binding on each of the Owners and the Operators, and each of their agents and employees.

5.      This Consent Decree also applies to and binds any and all successors in interest and assignees of the Owners and the Operators. Each of the Owners and Operators shall have a duty to notify all successors in interest and assignees of their respective interest in the Hotels of this Consent Decree.

6.       The undersigned representatives of the parties certify that they are authorized to enter into and consent to the terms and conditions of the Consent Decree and to execute and legally bind the parties to it.

II.        TERM OF CONSENT DECREE

7.       The term of this Consent Decree is three years from the Effective Date, as defined in paragraph 30.

III.      DEFINITIONS

8.      For purposes of this Consent Decree, the term "Standards" means the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.

9.      For purposes of this Consent Decree, the term "accessible" means in compliance with the Standards.

10.      For purposes of this Consent Decree, the term "alterations" means a change to the Hotels that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, remodeling, renovation, rehabilitation, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.

IV.       GENERAL INJUNCTIVE RELIEF

11.        Defendants, as well as their officers, agents, servants, employees, successors and assigns, are permanently enjoined from violating Title III of the ADA with respect to the Hotels.

V.        MAIN PUBLIC ENTRANCE

12.        The Owners and/or Operators of each Hotel shall ensure that its main public entrance is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. The Owners and/or Operators of each Hotel shall further ensure that the public restrooms in the lobby area of each Hotel are accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility, by removing those barriers to access that are readily achievable. Within eighteen months following the Effective Date of this Consent Decree, the Owners and/or Operators of each Hotel shall certify in writing to counsel for the United States that the Hotel has attained full compliance with this paragraph. The Owners and/or Operators of each Hotel shall thereafter notify counsel for the United States in writing if they make any alteration of the main public entrance or public restroom during the remainder of the term of this Consent Decree.

VI.       REGISTRATION COUNTER and FRONT DESK TTY

13.        Within six months following the Effective Date of this Consent Decree, the Owners and/or Operators of each Hotel shall ensure that each Hotel's registration counter (or any auxiliary counter) complies with Section 7.2 of the Standards, or that the Hotel provides equivalent facilitation as provided in Section 7.2(2)(iii) of the Standards. Within six months following the Effective Date of this Consent Decree the Owners and/or Operators of each Hotel shall certify in writing to counsel for the United States that the Hotel has attained full compliance with this paragraph. The Owners and/or Operators of each Hotel shall thereafter notify counsel for the United States in writing if the Hotel makes any alteration of the registration counter (or any auxiliary counter) during the remainder of the term of this Consent Decree.

14.        Within six months following the Effective Date of this Consent Decree, the Owners and/or Operators of each Hotel shall ensure that each Hotel has a text telephone ("TTY") at the front desk so that Hotel personnel can communicate with persons who are deaf, hard of hearing, or have speech impairments, as provided in Section 4.31.9 of the Standards. Within three months following the Effective Date of this Consent Decree, the Owners and/or Operators of each Hotel shall certify in writing to counsel for the United States that each Hotel has attained full compliance with this paragraph.

VII.     NUMBER AND DISPERSAL OF ACCESSIBLE UNITS, SLEEPING ROOMS, and SUITES

15.       To increase accessibility for individuals with disabilities pursuant to Section 9.1.4(1) of the Standards, the Owners and/or Operators of each Hotel shall take the following steps within the time periods specified:

(a)    First, within six months following the effective date of this Consent Decree, each Hotel shall conduct, and maintain a record of, a written self-evaluation of the rooms that the Hotel currently designates as its "accessible" rooms to identify any designated "accessible" room that does not comply with Section 9.2.2 of the Standards. Each Hotel shall provide a copy of the written self-evaluation to counsel for the United States.

(b)    Second, within two years after the effective date of the Consent Decree, the Hotel will eliminate any barriers to access identified during its self-evaluation, and shall provide units, sleeping rooms, or suites in compliance with Section 9.2.2 of the Standards as follows:

(i)    The Moderne, which has 34 rooms, shall provide at least 3 rooms that are accessible to people with disabilities, and shall offer at least one accessible room in each of the following classes of sleeping accommodations as described in its survey response dated July 7, 2005: Junior Suite, Standard Room with King Bed. All 3 accessible rooms shall have an accessible, roll-in shower.

(ii)    The Ameritania, which has 219 rooms, shall provide at least 10 rooms that are accessible to people with disabilities to the extent readily achievable, and shall offer at least one accessible room in each of the following classes of sleeping accommodations as described in its survey response dated June 8, 2007: Two Double Bedroom, 1 King Bedroom, 1 Queen Bedroom, 1 Double Bedroom, and a Suite. In addition, to the extent readily achievable, the Ameritania shall provide that 7 of the 10 accessible rooms have accessible, roll-in showers.

(iii)   The Amsterdam Court, which has l36 rooms, shall provide at least 7 rooms that are accessible to people with disabilities to the extent readily achievable, and shall offer at least one accessible room in each of the following classes of sleeping accommodations as described in its survey response dated June 8, 2007: Standard 1 Queen Bedroom, Standard 2 Double Bedroom, Standard 1 King Bedroom, and Deluxe 2 King Bedroom. In addition, to the extent readily achievable, the Amsterdam Court shall provide that all 7 accessible rooms have accessible, roll-in showers.

VIII.    ROOMS ACCESSIBLE TO PERSONS WHO ARE DEAF OR HARD OF HEARING

16.        To increase accessibility for individuals who are deaf or hard of hearing, each Hotel shall provide units that are accessible to persons who are deaf or hard of hearing as follows:

(a)    The Moderne, which has 34 rooms, shall provide at least 4 rooms that are in compliance with Section 9.3.1 of the Standards or by providing equivalent facilitation in compliance with Section 9.3.2 of the Standards.

(b)    The Ameritania, which has 219 rooms, shall provide at least 17 rooms that are in compliance with Section 9.3.1 of the Standards or by providing equivalent facilitation in compliance with Section 9.3.2 of the Standards. 

(c)    The Amsterdam Court, which has 136 rooms, shall provide at least 12 rooms that are in compliance with Section 9.3.1 of the Standards or by providing equivalent facilitation in compliance with Section 9.3.2 of the Standards.

To the extent that a Hotel is required by this Consent Decree to provide rooms that comply with Section 9.3.1 of the Standards, such Hotel shall complete the construction of such rooms within two years after the Effective Date of the Consent Decree. To the extent a Hotel is required by this Consent Decree to provide equivalent facilitation that complies with Section 9.3.2 of the Standards, such Hotel shall ensure that the Hotel is able to provide, pursuant to Section 9.3 of the Standards, portable communication devices and install sufficient electrical outlets (including outlets connected to the Hotel's central alarm system) and telephone wiring in units to enable persons who are deaf or hard of hearing to utilize the portable communication devices within twelve months after the effective date of the Consent Decree. Standards § 9.1.3. If at any point during the term of this Consent Decree, a Hotel is unable to provide sufficient accessible units to individuals who are deaf or hard of hearing, as required under this paragraph, such Hotel shall promptly notify the United States in writing, through the undersigned counsel.

IX.       POLICIES, PRACTICES, AND PROCEDURES

17.        The Owners and/or Operators of each of the Hotels shall establish a written policy for each Hotel specifically addressing the provision of services to individuals with disabilities.

18.        Each Hotel's policy shall specify, among other things, that

(a)    persons with disabilities may reserve accessible guestrooms/suites in the same way and on the same terms that other persons can reserve guestrooms/suites (see 28 C.F.R. § 36.302);

(b)    all reservation staff (including staff located on-site at the Hotel and staff located off-site at a reservations center) shall have ready access to information about the lodging facility's accessible guestrooms/suites (including specific information on room layout and types and sizes of accessible showers, bathtubs and other features, such as tub seats) for use in making reservations and answering questions (see 28 C.F.R. § 36.302);

(c)    all accessible guestrooms/suites shall be held until all other rooms in the same room class have been assigned, provided, however, that accessible guestrooms/suites may be assigned to guests who request an accessible guestroom/suite (see 28 C.F.R. § 36.302);

(d)    the rates for accessible guestrooms/suites shall be the same as the rates for guestrooms/suites with comparable features and amenities that are not designated accessible (see 28 C.F.R. § 36.301(c));

(e)    accessible features inside and outside the Hotel shall be maintained in good working order (see 28 C.F.R. § 36.211);

(f)     fire-safety information, maximum room rate information, telephone and television information cards, guest services guides, restaurant menus, room service menus, and all other printed materials provided for use by guests shall also be available in alternate formats so that blind persons and persons with low vision have access to the information (see 28 C.F.R. § 36.303(b); 36.303(b));

(g)    persons with disabilities shall be permitted to use service animals, without incurring any extra charges or conditions, in guestroom/suites and all public areas of the facility (see 28 C.F.R. § 36.302(c));

(h)    televisions in guestrooms/suites shall include televisions with built-in captioning features or close-captioning decoders provided for use by persons who are deaf or hard of hearing (see 28 C.F.R. § 36.303(e));

(i)     Hotel staff shall  be made available to move furniture, and provide and adjust accessible features in guestrooms when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a)); and

(j)    Hotel staff members that are reasonably expected to have contact with guests of the Hotel shall be trained to offer assistance, upon request, to persons with disabilities who cannot transport their luggage to/from their guestrooms/suites and who may need assistance in locating guestrooms and Hotel amenities (see 28 C.F.R. § 36.302(a)).

X.        ALTERATIONS

19.        The Owners and Operators of each of the Hotels agree that any alteration to the Hotels shall comply with the Standards to the maximum extent feasible, pursuant to 42 U.S.C. § 12183(a)(2), and 28 C.F.R. § 36.402. The Owners and Operators further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of a Hotel that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. In addition to the written notifications required herein, the Owners and Operators shall, on each anniversary date of the Consent Decree, provide a written report to counsel for the United States of any alterations to the Hotel during the term of this Consent Decree commenced during the preceding calendar year and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.

XI.      MONITORING AND COMPLIANCE

20.        Every year during the term of this Consent Decree on the anniversary date of the effective date of the Consent Decree, the Owners and/or Operators of each Hotel shall provide to counsel for the United States a narrative report of the actions taken during the reporting period to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at the Hotel and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Hotel was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.

21.        Every Owner and Operator of a Hotel shall cooperate in good faith with any and all reasonable requests by the United States for access to a Hotel and for information and documents concerning the Hotel's compliance with this Consent Decree and the ADA.

22.        The United States shall have the right to verify compliance with this Consent Decree and the ADA, both as set forth in this Consent Decree and through any means available to the general public, including visits to the public areas of a Hotel and communications with Hotel staff. The United States shall have the right to inspect the facility at reasonable times upon ten (10) business days advance written notice to the Owner and Operator of such Hotel.

23.        All notifications that this Consent Decree requires to provide to counsel for the United States shall be made in writing, and sent to the following address: Chief, Civil-Rights Unit, U.S. Attorney's Office Civil Division, 86 Chambers Street, 3rd Floor, New York, NY 10007.

XII.     ENFORCEMENT

24.        If the United States believes that any Owner or Operator of any of the Hotels has violated this Consent Decree or any of its requirements, the United States will notify such Owner and Operator of the Hotel in writing and attempt to resolve the issue or issues of noncompliance in good faith. If the United States and the Owner and Operator of the Hotel are unable to reach a satisfactory resolution of the issue or issues of noncompliance, the United States may apply to this Court to enforce the terms of this Consent Decree and/or the ADA. This Court shall retain jurisdiction for a period of three (3) years following the Effective Date of this Consent Decree (a) to enforce or modify the provisions of this Consent Decree, (b) to resolve any dispute that arises under the Consent Decree, and (c) to entertain any application and issue any orders as may be necessary or appropriate in connection with subsections (a) and (b) of this paragraph.

XIII.    GENERAL PROVISIONS

25.       In consideration for the Hotel's timely performance of all of its obligations under this Consent Decree, the Complaint in this matter is hereby dismissed. The United States reserves the right to investigate any complaint it receives concerning any Hotel, to initiate future compliance reviews concerning any Hotel with respect to any aspect of such Hotel or its operation not expressly addressed in this Consent Decree, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning a Hotel, or commences any future compliance review concerning a Hotel, nothing in this Consent Decree shall limit the scope of any investigation or compliance review of such Hotel or preclude the United States from seeking relief beyond that required under this Consent Decree with respect to items not addressed herein.

26.       The Owners and Operators of the respective Hotels shall pay a civil penalty to the United States as authorized by 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3), to vindicate the public interest as follows:

(a)    Defendants DKE Realty Corporation, Jennas LLC, and Amsterdam Hospitality LLC shall pay the amount of $10,000 for the Moderne;

(b)    Defendants Britannia 54th Hotel Corporation and Amsterdam Hospitality LLC shall pay the amount of $10,000 for the Ameritania;

(c)    Defendants Ali Baba Hotel Corporation and Amsterdam Hospitality LLC shall pay the amount of $10,000 for the Amsterdam Court.

All payments made pursuant to this paragraph shall be made within 10 days of the Effective Date of this Consent Decree by wire transfer, pursuant to instructions that counsel for the Owners and Operators of the Hotels has received from counsel for the United States.

27.       A violation of this Consent Decree shall be deemed a subsequent violation of the ADA under 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3).

28.       Each party shall bear its own costs and attorney's fees in this action.

29.       A copy of this Consent Decree shall be made available to any person upon request.

30.       The effective date of this Consent Decree is the date it is entered on the docket (the "Effective Date").

31.       Failure by the United States to enforce the entire Consent Decree with regard to any deadline or any other provision of the Consent Decree, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Consent Decree. 

32.       This Consent Decree constitutes the entire agreement between the parties, 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 Consent Decree, shall be enforceable. No modification may be made to this Consent Decree without the written consent of the parties and approval by the Court.

 

Dated:   New York, New York
           May 6      , 2009

 

FOR THE UNITED STATES;

LEV L. DASSIN
Acting United States Attorney for the
Southern District of New York

By:________________________
LAWRENCE H. FOGELMAN
CAROLINA A. FORNOS
DAVID J. KENNEDY
HEATHER K. McSHAIN
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
Phone: (212) 637-2733
Fax No.: (212) 637-0033

Dated:   New York, New York
           May 4      , 2009

 

FOR DEFENDANTS AMSTERDAM
HOSPITALITY, LLC; DKE REALTY
CORPORATION; JENNAS LLC; ALI BABA
HOTEL CORPORATION; and BRITTANIA
54TH STREET HOTEL CORPORATION

_________________________
SOL ORBUCH
Counselor at Law
2121 Donna Drive
Merrick, New York 11566
Phone: (516) 546-0252
Fax No.: (516) 546-7168

SO ORDERED
_______________________
HON. SHIRA A.SCHEINDLIN
UNITED STATES DISTRICT JUDGE       5/7/09





June 4, 2009