U.S. Department of Justice
United States Attorney
Southern District of New York
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); and
WHEREAS, the term “public accommodation” under the ADA includes “a restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. § 12181(7)(B); and
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); and
WHEREAS, the United States Attorney’s Office for the Southern District of New York (the “United States”), pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), commenced a limited review of certain restaurants in New York City to determine, with respect to the specific areas reviewed, whether those restaurants were operating in compliance with Title III of the ADA (the “Compliance Review”); and
WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of Nobu (the “Restaurant”) located at 105 Hudson Street, New York, New York; and
WHEREAS, the United States conducted a limited site inspection of certain features and facilities within the Restaurant, and met with representatives of the Restaurant; and
WHEREAS, the United States and the Restaurant share the goal of resolving the Compliance Review and ensuring that the Restaurant operates in compliance with Title III of the ADA; and
WHEREAS, in light of the actions taken by the Restaurant to date to comply with the ADA, the actions taken by the Restaurant during the period of the Compliance Review, and the actions that the Restaurant has agreed to take within the next three years as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to the Restaurant as a result of this Compliance Review;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF THE RESTAURANT, AS FOLLOWS:
1. The Restaurant is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is “a restaurant, bar, or other establishment serving food or drink.” 42 U.S.C. § 12181(7)(B); see 28 C.F.R. § 36.104.
2. Nobu Associates, L.P. (the “Owner and Operator”) is a public accommodation within the meaning of Title III of the ADA because it owns and operates the Restaurant, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
3. This Agreement shall be binding on the Owner and Operator, and each of their agents and employees. In the event the Owner seeks to transfer or assign all or part of their interest in the Restaurant, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale the Owners shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
4. This Agreement shall apply to all public use areas within the Restaurant. This includes, but is not limited to: public entrances, waiting areas, bar areas, dining areas, toilet rooms, and corridors. This Agreement shall not apply to non-public use areas, such as food preparation and storage locations, employee locker rooms, and other service-related areas.
5. For purposes of this Agreement, the term “Standards” means the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 36.104, which consist of the 2004 ADA Accessibility Guidelines and the requirements contained in 28 C.F.R. Part 36, subpart D (“ADAAG”).
6. For purposes of this Agreement, the term “accessible” means in compliance with the Standards.
7. For purposes of this Agreement, the term “alterations” means a change to the Restaurant 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, reconstruction, 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, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.” See 28 C.F.R. §§ 35.151(b), 36.402.
8. The Restaurant shall accept relay calls. See 28 C.F.R. § 36.303.
9. The Restaurant shall ensure that its designated alternate entrance on Franklin Street is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. Specifically, the Restaurant shall remove each of the following barriers to accessibility:
The Restaurant agrees to modify the designated alternate entrance by installing a permanent ramp, replacement door with automatic door opener, and signage. The Restaurant will ensure that these modified features shall comply with the Standards, including the specifications set forth above. As needed, the Restaurant shall use its best efforts to obtain the approvals necessary to accomplish these modifications from, among others, the New York City Department of Buildings, New York City Landmarks Preservation Commission, and the Restaurant’s landlord. Accordingly, the Restaurant shall submit application(s) to the Co-op board of Powell Building, the New York City Department of Buildings, New York City Landmarks Preservation Commission, and/or the Restaurant’s landlord, as necessary, for permission to accomplish these modifications within three (3) months of the Effective Date of this Agreement. The Restaurant shall send copies of such applications to the United States at the time that they are made. The Restaurant shall commence bringing its alternate entrance into compliance with the Standards within three (3) months of the date that such applications are granted and the alternate entrance shall be in compliance with the Standards within nine (9) months of the date that such applications are granted.
10. The Restaurant shall post directional signage indicating the location of the accessible alternate entrance at the main public entrance, located on Hudson Street. See 2010 Standards §§ 216.6, 703.5. The Restaurant shall bring its directional signage into compliance with the Standards no later than the date that it brings its alternate entrance into compliance with the Standards as described above in paragraph 9.
11. The Restaurant shall provide an accessible route through the designated accessible entrance into the Restaurant. See 2010 Standards §§ 206.2.1, 206.4, 404 and Chapter 4.
12. The Restaurant shall ensure that the routes from the entrance to the host station and from the host station to the seating area are accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if it maintains its host station in the condition as it existed at the time of the Government’s inspection on February 3, 2012. The Restaurant shall notify the United States, through undersigned counsel, in writing if it makes any alteration of the host station, or any alteration of accessible routes from the entrance to the host station and from the host station to the seating area, during the term of this Agreement. See 2010 Standards §§ 206.2.4 and Chapter 4.
13. The Restaurant shall ensure that 5% of the total number of seating locations at fixed dining surfaces in the Restaurant’s dining areas is accessible to persons with disabilities, such that three (3) seating locations are accessible. Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route. See 2010 Standards §§ 206.2.4, 226.1, 902 and Chapter 4. Accessible seating shall be distributed throughout the Restaurant in compliance with the 2010 Standards § 226.2. The Restaurant shall replace two of the two-person tables located on the Hudson Street side of the dining area with a single four-person table that complies with the Standards. The Restaurant shall comply with this paragraph within six (6) months of the Effective Date of this Agreement.
14. The Restaurant shall provide an accessible route to 5 percent of the accessible seating spaces provided at fixed dining surfaces. One full unobstructed side of the clear floor space provided at fixed dining surfaces shall adjoin an accessible route. 2010 Standards §§ 206.2.2, 226.1, 402.2, 403.5.1, 902.2, 305. As of the date of the Government’s inspection on February 3, 2012, the access aisle to the designated accessible fixed tables was less than 36 inches between the fixed trees and the table edges. See Standards §§ 5.4, 4.3.3. The Restaurant represented in its letter dated December 19, 2012, that it has come into compliance with this provision of the Standards by removing one of the fixed trees. For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if its December 19, 2012 letter accurately describes the extent of its barrier removal.
15. The Restaurant shall provide an accessible route to all dining areas, including raised or sunken dining areas, or shall provide the same services and decor in an accessible space usable by the public and not restricted to use by people with disabilities. 2010 Standards §§ 206.2.5, 402.2. The raised dining area, which is used as a semi-private dining area, is located one six-inch riser above the main dining area, and an accessible route is not provided. The Restaurant shall therefore provide an accessible route to the raised dining area, or shall provide accessible semi-private dining upon request.
16. The Restaurant shall ensure that there is an accessible route from each accessible seating location to the accessible restrooms. See 2010 Standards §§ 206.2.4 and Chapter 4.
17. The Restaurant shall provide a minimum of one accessible toilet room for each sex or a minimum of one accessible unisex toilet room. See 2010 Standards §§ 206.5, 213, 304.3, 404, 603, 604.
18. Pursuant to paragraph 17, the Restaurant shall submit plans for a unisex accessible restroom on an accessible route, 2010 Standards §§ 206.2.3, 213, 603, 604, 605, 606, to the United States within eight (8) months of the Effective Date of this Agreement, and complete construction of the restroom within one year of receiving the approval of the United States.
19. The Restaurant shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
20. The Restaurant’s policy shall specify, among other things, that
(a) persons with disabilities may make reservations in the same way and on the same terms that other persons can make reservations (see 28 C.F.R. § 36.302);
(b) all reservation staff (including staff located on-site at the Restaurant and staff located off-site at a reservations center) shall have ready access to information about the restaurant’s accessibility features for use in assisting customers in making reservations and answering questions (see 28 C.F.R. § 36.302);
(c) accessible features inside and outside the Restaurant must be maintained in good working order (see 28 C.F.R. § 36.302);
(d) employees will receive basic training on how to accommodate persons with disabilities (e.g., overview of the Restaurant’s accessibility features, dealing with service animals, etc.) (see 28 C.F.R. § 36.302(a));
(e) Restaurant staff shall be trained to offer assistance, upon request, to persons with disabilities who may need assistance in using restaurant services (see 28 C.F.R. § 36.302(a));
(f) Restaurant staff shall be made available to move tables, and provide and adjust accessible features of the facility when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a));
(g) Restaurant menus, and all other printed materials provided for use by patrons, also be available in alternate formats so that blind persons and persons with low vision can read them (alternate formats include Braille, large print, and audio recording) (see 28 C.F.R. § 36.303(b));
(h) dietary information (either on its menus or elsewhere) will be provided for patrons with diabetes or those with food allergies (see 28 C.F.R. § 36.302);
(i) at the request in advance of an individual with disabilities, appropriate foods will be provided to meet a patron’s particular dietary needs provided that such special foods can be obtained from a supplier with whom the Restaurant customarily does business (see 28 C.F.R. § 36.307);
(j) persons with disabilities may use service animals, without imposing any extra charges or conditions, in all public areas of the facility, including restrooms (see 28 C.F.R. § 36.302(c));
(k) Restaurant employees shall receive training on the proper manner for determining whether an animal qualifies as a service animal (see 28 C.F.R. § 36.302(c)(6)); and
21. The Owner and Operator acknowledge and agree that any alteration to the Restaurant “shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” See 28 C.F.R. § 36.402(a). The Owner and Operator further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of the Restaurant 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. See 28 C.F.R. § 36.403(a)(1). The Owner and Operator agree to notify the United States, in writing, of any alterations to the Restaurant commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.
22. Every year during the term of this Agreement on the anniversary date of the Effective Date of the Agreement, the Restaurant shall provide to 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 Restaurant 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 Restaurant was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
23. The Owner and Operator of the Restaurant shall cooperate in good faith with any and all reasonable requests by the United States for access to the Restaurant and for information and documents concerning the Restaurant’s compliance with this Agreement and the ADA.
25. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Restaurant and communications with Restaurant staff. The United States shall have the right to inspect the facility at any time, and counsel for the United States need not identify themselves in the course of visits to the public areas.
26. If the United States believes that this Agreement or any of its requirements has been violated, it will notify the Owner and Operator of the Restaurant in writing and attempt to resolve the issue or issues in good faith. If the United States and the Owner and Operator of the Restaurant are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.
27. In consideration for the Restaurant’s timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review of the Restaurant, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning the Restaurant, to initiate future compliance reviews concerning the Restaurant with respect to any aspect of the Restaurant or its operation not expressly addressed in Parts III through X of this Agreement, 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 the Restaurant, or commences any future compliance review concerning the Restaurant, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Restaurant or preclude the United States from seeking relief beyond that required under this Agreement.
28. A copy of this Agreement shall be made available to any person upon request.
29. The Effective Date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is three years from the Effective Date.
30. This Agreement memorializes the commitments made by the Owner and Operator of the Restaurant to increase accessibility of the Restaurant and the terms under which the United States has agreed to conclude this particular Compliance Review of the Restaurant without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the Restaurant is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the Restaurant’s continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
31. This Agreement does not constitute an admission by the Restaurant of non-compliance with any provision of the ADA.
32. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
33. Failure by the United States to enforce the entire Agreement, with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
34. This Agreement constitutes the entire agreement between the parties relating to the compliance review, 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 Agreement, shall be enforceable.
New York, New York
September 9, 2013
FOR THE UNITED STATES
United States Attorney for the Southern District of New York
By: /s/ Amy Barcelo
AMY A. BARCELO
CRISTINE IRVIN PHILLIPS
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
New York, New York
Aug 30, 2013
FOR THE OWNER AND OPERATOR OF THE RESTAURANT:
NOBU ASSOCIATES, L.P.
By: /s/ Drew Nieporent
105 Hudson Street
New York, New York 10013