SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND JAMES GARRETT, INC. LLC
d/b/a OCEAN PALMS BEACH RESORT
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-12-97
1. This matter was initiated by a complaint filed with the United States Department of Justice (“United States”) against the Ocean Palms Beach Resort (“Resort”), located at 2950 Ocean Street, Carlsbad, CA 92008. The complaint was filed under title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and was received by the Department’s Civil Rights Division under the authority of 28 C.F.R. Part 36, Subpart E. The complaint alleges that the Resort is inaccessible to persons with disabilities in violation of the ADA.
2. The Attorney General is authorized to enforce title III of the ADA by seeking the modification of facilities to make such facilities readily accessible to and usable by individuals with disabilities. 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. 42 U.S.C. § 12188(b)(1)(B).
3. The parties to this Agreement are the United States of America and James Garrett, Inc., LLC d/b/a the Ocean Palms Beach Resort, referred to collectively as “the Parties” throughout the Agreement.
4. The Resort is owned and operated by James Garrett, Inc. LLC (“James Garrett, Inc.”).
5. The Resort is a place of lodging, offering 50 separate guest rooms. Therefore, it is a place of public accommodation under title III of the ADA. 42 U.S.C. § 12181(7)(A); 28 C.F.R. § 36.104.
6. The Resort was constructed before the ADA’s effective date, and as an existing facility under title III of the ADA, is subject to title III’s architectural barrier removal requirements. 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304.
7. James Garrett, Inc. agrees to undertake barrier removal, as outlined in this Settlement Agreement, to ensure that individuals with disabilities, including individuals who use wheelchairs, have an equal opportunity to enjoy the Resort’s accommodations.
8. In consideration of, and consistent with, the terms of this Agreement, the Attorney General 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 “‘Enforcement and Implementation.”
ACTIONS TO BE TAKEN BY JAMES GARRETT, INC.
9. James Garrett, Inc. will ensure that Resort staff are trained in ADA compliance relevant to the Resort, including, but not limited to: 1) location of accessible parking and entrances; 2) the location and type of designated accessible guests rooms; 3) accessible features within each accessible guest room; 4) location of accessible routes into and throughout the Resort; 5) location and use of auxiliary aids for effective communication (e.g., TTY’s, closed captioned televisions, visual notification devices); 6) maintenance of accessible routes; 7) reservation policies relevant to people with disabilities; and 8) all requirements of this Agreement. James Garrett, Inc. will ensure that all persons on staff who have contact with patrons of the Resort are trained in these issues, within ninety days of the Effective Date of this Agreement. In addition, the Resort will ensure that future staff are trained on ADA compliance during their initial training period.
GUEST RESERVATION POLICIES
10. James Garrett, Inc. will accept and guarantee reservations for people with disabilities who request designated accessible guest rooms in the same manner that it guarantees other room reservations. This includes, but is not limited to, reservations made by telephone, or through travel agents or tour groups.
11. James Garrett, Inc. shall ensure that individuals requesting designated accessible guest rooms are informed as to the accessible features within each guest room, the configuration and accessible routes to and through the Resort, the location within the Resort of the designated accessible guest rooms, details about access and egress from the designated accessible guest rooms, and any policy regarding limited entry to the Resort during overnight hours.
12. James Garrett, Inc. will only rent the designated accessible guest rooms to those persons who request accessible rooms for use by a person with a disability unless:
a. All other guest rooms in the Resort are occupied. Any individual who rents a room under those circumstances shall be notified that, in the event that other rooms become available and a person with a disability requests an accessible room and no other accessible rooms are available, James Garrett, Inc. will relocate the individual without a disability to another room to make available the accessible room for persons with disabilities.
b. In cases where other rooms are still available, but a customer requests a particular room at the Resort (the Resort has a combination of studios, mini suites, one bedrooms, two bedrooms, luxury mini suites, and luxury two bedrooms), one designated accessible guest room may be rented in any twenty-four-hour period to a person without a disability who requests one of the accessible rooms because of its particular features, regardless of whether all other rooms in the Resort have already been rented.
13. James Garrett, Inc. shall inform and train all staff responsible for taking reservations for the Resort regarding these reservation policies. James Garrett, Inc. will keep a written copy of accessible features of the Resort, including the features of each designated accessible guest room, in the guest registration work area.
14. Within thirty (30) days of the effective date of this Agreement, James Garrett, Inc. will acquire a TTY machine to ensure that Resort staff can effectively communicate with guests, including potential guests, who are deaf or hard of hearing. 28. C.F.R. § 36.303(d). The TTY machine will be placed at the front desk of the Resort. 28 C.F.R. § 36.211. James Garrett, Inc. also agrees to train Resort staff on how to utilize the TTY machine.
DESIGNATED ACCESSIBLE GUEST ROOMS
15. The Resort has 50 guest rooms and one of the 50 guest rooms which is the designated accessible guest room is not ADA compliant. If the Resort undertakes any alterations as described in 28 C.F.R. § 36.402, James Garrett, Inc. will ensure that accessible guest rooms are added in compliance with the Standards. Standards §§ 9.1.5, 9.1.2, 9.1.3.
16. Within six (6) months of the effective date of this Agreement, James Garrett, Inc. will undertake barrier removal to improve guest rooms 127 and 128 at the Resort consistent with §§ 9.1.5 and 9.2.2 of the ADA Standards. Barrier removal in guest rooms 127 and 128 must be completed no later than December 31, 2009.
17. Within six (6) months of the effective date of this Agreement, James Garrett, Inc. will provide a permanent room identification sign outside every guest room that complies with Standards § 4.1.3(16)(a). Each sign shall be mounted on the wall adjacent to the latch side of the door so that its centerline is 60 inches above the finished floor or ground. Additionally, the characters shall be in sans serif type and in contrast with their background. Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
18. Within six (6) months of the effective date of this Agreement, James Garrett, Inc. will acquire two auxiliary aid kits or equipment to make guest rooms accessible to individuals who are deaf or hard of hearing. Standards §§ 9.1.3, 9.2.2(8 ).
SPECIFIC DESIGNATED ACCESSIBLE GUEST ROOM
19. The Resort has designated guest room 114 (A Luxury Two Bedroom Suite) as an accessible guest room. However, guest room 114 is not in compliance with the ADA Standards.
COMMON USE AREAS OF THE HOTEL
James Garrett, Inc. agrees to remove barriers identified, below, in the common areas of the hotel within six (6) months of the effective date of this Agreement:
20. Lobby/Gift Shop Area
a. Lobby Counter
i. Lower the registration counter so that it is a minimum of 36 inches long and a maximum of 36 inches high or, in the alternative, provide an auxiliary surface, table, or counter that is a maximum of 36 inches high. Standards § 7.2(2).
21. “Guest Pantry” Convenience Store
a. Lobby Gift Shop Area
i. The lobby gift shop area is not accessible. As an alternative to barrier removal, install signage in the lobby/gift shop area informing guests with disabilities that staff are available to assist with purchases in the guest pantry. 28 C.F.R. § 36.305(b)(2). Staff will be trained to so assist including providing a detailed list of all items available for sale in the pantry, so that guests with disabilities may select and purchase pantry items in the lobby of the Resort.
22. Conference Center
a. Unisex Toilet Room
i. Relocate the toilet flush control to the wide side of the toilet. Standards §§ 4.1.3(11), 4.22.4 and 4.16.5.
ii. Install a rear grab bar that is at least 36-inches long. Standards §§ 4.1.3(11), 4.22.4, 4.16.4 and Figure 29 (b).
iii. Remove the 24-inch long diagonally mounted side grab bar and install a side grab bar that is a minimum of 42 inches long and mounted parallel to the floor between 33 inches and 36 inches above the finished floor. Standards §§ 4.1.3(11), 4.22.4, 4.16.4 and Figure 29 (b).
a. Unisex Toilet Room
i. Relocate the toilet flush control to the wide side of the toilet. Standards §§ 4.1.3(11), 4.22.4, 4.16.5.
ii. Remove the 24-inch long rear grab bar and install a rear grab bar that is a minimum of 36-inches long. Standards §§ 4.1.3(11), 4.22.4, 4.16.4 and Figure 29 (a).
iii.Remove the 24-inch long side grab bar and install a side grab bar that is a minimum of 42-inches wide long exactly 12 inches from the corner. Standards §§ 4.22.4, 4.16.4 and Figure 29 (b).
iv.Remove the room identification sign mounted on the entrance door to the toilet room and mount it on the wall adjacent to the latch side of the door exactly 60-inches above the finished floor to the centerline of the sign. As an alternative, leave the current sign on the door and add a second tactile sign on the wall adjacent to the latch side of the door exactly 60-inches above the finished floor to the centerline of the sign. Standards §§ 4.1.3(16) (a) and 4.30.6.
Parking for Designated Accessible Guest Rooms
24. The Resort currently has eight (8) parking spaces including one van accessible parking space that complies with the ADA. Standards §§ 4.1.2(5). James Garrett, Inc. agrees that if the Resort increases the number of additional parking spaces in the future that it will ensure it has a sufficient number of accessible parking spaces as required by the ADA Standards. Standards §§ 4.1.2(5)(a), 4.6.
25. Six (6) months after the effective date of this Agreement, and again on the anniversaries of the effective date of this Agreement for three years, James Garrett, Inc. will submit a report to the United States summarizing the actions it has taken pursuant to this Agreement. The reports will consist of descriptions and detailed photographs of the architectural modifications taken pursuant to this Agreement to clearly show the dimensions of the various elements and spaces so that compliance with the Agreement may be determined.
REPORTING AND MONITORING
26. In order to assess whether the modifications to James Garrett Inc’s practices are effective, six (6) months after this Agreement is executed, and continuing once a year for the three years after this Agreement is in effect, James Garrett, Inc. will provide to the United States copies of written or e-mail complaints that James Garrett, Inc. received from guests with disabilities, and documentation that reflects whether and how the complaint was resolved.
ENFORCEMENT and IMPLEMENTATION
27. In consideration of James Garrett, Inc.’s timely performance of all its obligations under this Agreement, the United States agrees to discontinue any further investigation or action against James Garrett, Inc. for matters covered by the terms of the Agreement, except as provided in paragraph 28 of the Agreement.
28. The United States may review compliance with this Agreement at any time. If the United States believes that James Garrett, Inc. 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 James Garrett, Inc. 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 James Garrett, Inc., it may institute a civil action in United States District Court to enforce the terms of this Agreement or title III, and may, in such action, seek any relief available under law.
29. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for James Garrett, Inc. to fail to comply in a timely manner with any of its requirements without obtaining advance written agreement with the United States for an extension of time.
30. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the Department’s right to enforce other deadlines and provisions of this Agreement.
31. This Agreement shall be binding on James Garrett, Inc., its agents and employees. In the event James Garrett, Inc. seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, as a condition of sale James Garrett, Inc. shall notify all such successors in interest of the terms of this Agreement.
32. Within (30) thirty days of the Effective Date, James Garrett, Inc. hereby agrees to send to the complainant, Marie Caradonio, at the address provided by the United States, a copy of the Agreement and the Release attached as Appendix A. Within (30) thirty days of receiving the signed Release, James Garrett, Inc. shall send the complainant a check made payable in the amount of $3,000.00, as full and final settlement of the Complaint filed with the Department of Justice in this case. This sum shall be paid to Marie Caradonio in full and final satisfaction of all ADA claims arising out of the Complaint and the facts set forth therein. The check will be sent by certified mail or overnight delivery, with a copy to counsel for the United States.
33. The Effective Date of this Agreement is the date of the last signature below.
34. This Agreement constitutes the entire agreement between the parties, 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, shall be enforceable regarding matters raised herein.
35. 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 James Garrett, Inc.’s continuing responsibility to comply with all aspects of the ADA.
36. A copy of this document or any information contained in it will be made available to any person upon request to James Garrett, Inc. or the United States.
37. This Agreement will remain in effect for three (3) years from the Effective Date of this Agreement, or until the parties agree that full compliance with this Agreement by James Garrett, Inc. has been achieved, whichever is later. The Effective Date of this Agreement is the date of the last signature below.
38. Any individual signing this document for James Garrett, Inc. represents that he or she is authorized to bind James Garrett, Inc. to this Agreement.
|For James Garrett, Inc., LLC:||
For the United States:
JOHN L. WODATCH
MARY BLUE, Owner
BARRY BLUE, Owner
|Date: 6/23/09||Date: 7-7-09|
For and in consideration of the acceptance of the relief offered to me by JAMES GARRETT, INC., LLC in Carlsbad, California, pursuant to a Settlement Agreement between the United States of America and JAMES GARRETT, INC., LLC:
I, Marie Caradonio, release and discharge JAMES GARRETT, INC., LLC, Carlsbad, California, and its current, former, and future agents, employees, officials, and designees, of and from all legal and equitable claims known or unknown arising out of the facts described in paragraphs one through five above. I further agree that I will not exercise my right to institute against JAMES GARRETT, INC., LLC any civil action alleging discrimination on the basis of any of the facts alleged in my complaint.
I acknowledge that a copy of the Settlement Agreement between James Garrett, Inc., LLC in Carlsbad, California and the United States of America resolving the matter between them has been made available to me.
I HAVE READ THE RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.
Signed this ___ day of May, 2009.
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