Settlement Agreement between the United States and the Beachcomber Resort

SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE BEACHCOMBER RESORT MOTEL CONDOMINIUM ASSOCIATION, INC
REGARDING
THE BEACHCOMBER RESORT
DJ #202-48-277

The parties to this agreement ("Agreement") are the United States of America and Beachcomber Resort Motel Condominium Association. The parties hereby agree as follows:

BACKGROUND AND JURISDICTION

  1. Beachcomber Resort Motel Condominium Association ("Beachcomber Association") is the owner/operator of the Beachcomber Resort located at 7900 Dune Drive, Avalon, New Jersey.
  2. The United States Attorney's Office for the District of New Jersey, a component of the United States Department of Justice, opened an investigation of the Beachcomber Resort pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, as amended. The investigation was initiated upon the receipt of a complaint from an individual who alleged that portions of the Beachcomber Resort were not accessible.
  3. The United States Department of Justice is authorized under 42 U.S.C. § 12188(b)(1)(A) to investigate the allegations of the complaints in this matter to determine compliance with title III of the ADA, as amended, 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. Part 36, including the ADA Standards for Accessible Design. For purposes of this Agreement, the term "ADA Standards for Accessible Design" means the 1991 Standards, 28 C.F.R. Part 36, Appendix D, and the 2010 Standards, 28 C.F.R. § 36.104, which consists of the 2004 ADA Accessibility Guidelines (set forth in appendices B and D to 36 C.F.R. part 1191). The United States is authorized to investigate alleged violations of title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case that raises issues of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
  4. Title III of the ADA prohibits discrimination against persons with disabilities by owners or operators of places of public accommodation, 42 U.S.C. § 12182(a), and establishes an ongoing requirement by such owners and operators to, among other things: remove architectural barriers to access where such removable is "readily achievable," id. at § 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. § 3604.402-404; 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 (b)(2)(A)(ii), 28 C.F.R. §§ 36.201-202.
  5. The United States alleges that the Beachcomber Resort is a place of public accommodation within the meaning of title III of the ADA. , ,42 U.S.C. § 12181(7)(A); 28 C.F.R. §36.104. Currently, the units within the facility owned or controlled by the individual unit owners. 28 C.F.R. §364.406(c)(2). The Beachcomber Association is subject to title III because it is a private entity that owns, leases, or operates a place of public accommodation. Id.
  6. The United States alleges that the Beachcomber Resort is an existing facility under the ADA, and so is subject to the "readily achievable" barrier removal provisions of the ADA at 42 U.S.C. § 12182(b)(2)(iv)-(v) and 28 C.F.R. § 36.304. The United States further alleges that portions of the Beachcomber Resort were altered after January 26, 1992, and those portions should have been altered in such a manner that they are readily accessible to and usable by individuals with disabilities, to the maximum extent feasible. 42 U.S.C. § 12183(a); 28 C.F.R. 36. 402-406.
  7. The United States reviewed architectural plans and other information provided by the Beachcomber Association, and conducted a site visit of the Beachcomber Resort. The results of the site visit, which were shared with the Beachcomber Association, revealed a number of architectural barriers to access in and around the Beachcomber Resort.
  8. As required by the ADA's regulatory provisions, the United States used the 1991 Standards for Accessible Design to identify architectural barriers to access, see 28 C.F.R. § 36.304 (d)(2)(ii)(B), but any remedies for the identified barriers implemented by the Beachcomber Association under this Agreement shall be done in compliance with the 2010 Standards. Id.
  9. To the extent any units of the Beachcomber Resort are designed and constructed that they be rented or sold as exclusively residential units, they may be covered under the Fair Housing Act, 42 U.S.C. § 3601, 3602(b). Expressly excluded from the scope of this Agreement are any claims or obligations of either party under the Fair Housing Act. See 28 C.F.R. 36.406(c)(3).
  10. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit against the Beachcomber Association for failure to comply with title III of the ADA; provided however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement in accordance with paragraph 33 below.
  11. The United States does not assert that this Agreement or the modifications contemplated herein will necessarily bring the Beachcomber Resort into full compliance with all aspects of the ADA, and nothing in this Agreement is intended to constitute an interpretation of the legal requirements of the ADA by the United States. Rather, this Agreement is entered into by the parties for the purpose of compromising disputed claims and avoiding the risk and expenses of litigation. This Agreement is a compromise and it shall not be used or introduced into evidence in any other case or proceeding other than an action to enforce this Agreement between the parties to this Agreement.

REMEDIAL ACTIONS TO BE TAKEN BY THE JOINT VENTURE

  1. To resolve this matter, the Beachcomber Association agrees to take the following steps to remove architectural barriers to access at the Beachcomber Resort according to the deadlines stated below.

    Front and Rear Parking Areas

  2. Within sixty days of the effective date of this Agreement, the Beachcomber Association, which provides parking to all patrons of the Beachcomber Resort who have reserved a guest room, shall ensure that it provides accessible parking to all patrons with disabilities.
    1. The Beachcomber Association shall ensure that each accessible parking space shall be identified with a portable sign designating the parking space as accessible.
    2. The Beachcomber Association shall inform all patrons that it will provide accessible parking to patrons with disabilities who require accessible parking. Due to the limited number of spaces, if no patrons require or request an accessible parking space, the Beachcomber Resort shall not be required to permanently designate with a portable sign any specific parking spaces as accessible.
    3. For each patron that requires an accessible parking space, the Beachcomber Association shall make reasonable efforts to provide that patron an accessible parking space that is closest to that patron's room at the Beachcomber Resort.

    Entrance

  3. By March 30, 2018, the Beachcomber Association shall ensure that the entrance to the Beachcomber Resort is in compliance with Sections 206.2.1, 402.2, 403.4, 303.3, and 405.7.1 of the 2010 Standards.

    Lobby

  4. By March 30, 2018, the Beachcomber Association shall ensure that the lobby to the Beachcomber Resort is in compliance with the 2010 Standards, as follows:
    1. The Beachcomber Association shall ensure that the entrance door is in compliance with Sections 206.4.1, 206.5.1, 402.4.1 of the 2010 Standards.
    2. The Beachcomber Association shall provide an accessible registration counter in compliance with Sections 227.3, 904.4 of the 2010 Standards.
  5. On March 14, 2016, the Beachcomber provided plans to the United States for renovation to the lobby, which the United States has approved.

    Pool Area

  6. By March 30, 2018, the Beachcomber Association shall provide that the door from to the pool area is in compliance with Sections 206.5.2, 216.4.1, 404.2.2, 404.2.3, 703.1, 703.2, and 703.5 of the 2010 Standards.
  7. By March 30, 2018, the Beachcomber Association shall ensure that the gates to the pool are in compliance with Sections 206.5.2, 309.4, 404, 404.2.4.4, and 404.2.7 of the 2010 Standards.
  8. On October 30, 2017, the Beachcomber provided plans to the United States for the construction of a fire pit/bar area in exchange for the renovation of the bar counter, which the United States has approved.
  9. Within sixty days of the effective date of this Agreement, the Beachcomber Association shall ensure that the dining tables are in compliance with Sections 305, 306, and 902.2 of the 2010 Standards.
  10. Within sixty days of the effective date of this Agreement, the Beachcomber Association shall ensure that the pool lift is in compliance with Sections 242.2, 1009.2 of the 2010 Standards.
  11. By March 30, 2018, the Beachcomber Association shall ensure that the hot tub is in compliance with Section 242.4 of the 2010 Standards.
  12. On March 14, 2016, the Beachcomber provided plans to the United States for renovation to the pool area, which United States has approved.

    Unisex Toilet Room

  13. Within sixty days of the effective date of this Agreement, the Beachcomber Association shall provide tactile wall signage in compliance with Sections 216.2 and 703.4.1 of the 2010 Standards.
  14. Within sixty days of the effective date of this Agreement, the Beachcomber Association shall ensure that the grab bars are in compliance with Sections 213.3.2, 604.5.1, and 609 of the 2010 Standards.
  15. Within sixty days of the effective date of this Agreement, the Beachcomber Association shall ensure that the flush control, toilet paper dispenser, and paper towel dispenser are in compliance with Sections 205.1, 213.3.2, 308.3.2, 309.3, 604.6, and 604.7 of the 2010 Standards.

    Alterations and New Construction

  16. Any alterations or additions to the public and common use areas of the facility, or new construction at the Beachcomber Resort, including both existing and future alterations, additions or new construction, must comply with the ADA's requirements, including the appropriate accessibility standards. To the extent that the Beachcomber Association takes ownership or assumes substantial control over guestroom units, any alterations or additions shall comply with 28 C.F.R § 36.406(c).
  17. The Beachcomber Association further acknowledges and agrees that if an alteration or addition to the public and common use areas of the facility affects or could affect the usability of or access to an area of the Beachcomber Resort 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, including 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. 42 U.S.C. § 12183(a); 28 C.F.R. § 36.403.

    Policies and Procedures

  18. In addition to the specific requirements set forth in this Agreement, the Beachcomber Association agrees to ensure that all accessible features within the Beachcomber Association are maintained in operable working condition, within the meaning of 28 C.F.R. § 36.211.
  19. The Beachcomber Association shall implement and enforce a written policy providing that the Beachcomber Resort will welcome persons with disabilities accompanied by service animals, as required by 42 U.S.C. §12181(b)(2)(A)(iii) and 28 C.F.R. §§ 36.201 and 36.302.

    Training

  20. The Beachcomber Association shall train all present and future staff who work at the Hotels on any ADA issues relevant to their position at the Beachcomber Resort, including but not limited to: (1) location and type of guest rooms; (2) the location of all accessible public restrooms and accessible routes to each throughout the hotel, where all routes are not accessible; (3) location and use of accessibility equipment (e.g., portable kits containing TDD machines, visual alarms and notification devices, etc.); (4) all of the Beachcomber Resort's reservation policies and other policies regarding visitors with disabilities or accessible features; (5) maintenance of accessibility equipment and routes; (6) the Beachcomber Resort's service animal policy; and (7) all other requirements of this Agreement. The Beachcomber Association shall ensure that all present employees of the Beachcomber Resort are trained in ADA issues no later than sixty days after the effective date of this Agreement, that future employees of the Beachcomber Resort are trained in these issues within fourteen days of their first date of employment, and that employees of the Beachcomber Resort are trained on an annual basis at a date and time selected by the Beachcomber Association in its sole discretion.

IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT

  1. The United States may review compliance with this Agreement at any time. Upon reasonable advance notice to the Beachcomber Association (through undersigned counsel), the Beachcomber Association shall permit the United States and any person acting on its behalf unlimited access to the Beachcomber Resort to review compliance with the Agreement, provided that such access does not interfere with the comfort, privacy or safety of the guests at the Beachcomber Resort, or unreasonably interfere with the management and operation of the Beachcomber Resort.
  2. If the United States believes that this Agreement or any requirement thereof has been violated, it agrees to notify the Beachcomber Association in writing of the specific violation(s) alleged. The Beachcomber Association shall have thirty (30) days from its receipt of the notice to cure and/or respond in writing to the United States the alleged violation(s). If, after further discussion with the Beachcomber Association, the United States believes that the Beachcomber Association has violated the Agreement, the United States may institute a civil action for relief in federal district court, and the United States is authorized to seek civil penalties for any violation of this Agreement, pursuant to 42 U.S.C. §12188(b)(2)(C).
  3. One year after the Effective Date of this Agreement, the Beachcomber Association shall certify to the United States, in writing, that it has fulfilled to completion all of its obligations under this Agreement. The certification shall describe the steps that were taken to fulfill those obligations and shall be accompanied by photographs depicting the completed barrier removal work. Along with the aforesaid certification, the Beachcomber Association shall submit a similar certification regarding the completion of all modifications to the restrooms under this Agreement. The parties expressly agree that providing such certifications is essential to the enforcement of this Agreement, and that a failure to provide the certifications required by this paragraph constitutes a breach of this Agreement sufficient to warrant the penalties set out in paragraph 33.
  4. All notices, demands, reports or other communication to be provided to the United States pursuant to this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following:
    Michael E. Campion,
    Assistant U.S. Attorney,
    Chief, Civil Rights Unit
    U.S. Attorney's Office
    970 Broad Street, Suite 700
    Newark, New Jersey 07102
    email: michael.campion@usdoj.gov
    Louis A. DeLollis
    Monzo Catanese Hillegass, P.C.
    211 Bayberry Drive, Suite 2A
    Cape May Court House, New Jersey 08210
    email: ldelollis@mchlegal.com
  5. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person.
  6. 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 its right to do so with regard to other deadlines and provisions of this Agreement.
  7. 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. This Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the Americans with Disabilities Act, including violations of the alterations or new construction provisions of the Act, or any other Federal law. This Agreement does not affect the continuing responsibility of the Beachcomber Association to comply with all aspects of the Americans with Disabilities Act, including readily achievable barrier removal.
  8. If any provision 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 United States and the Beachcomber Association shall engage in good faith negotiations in order to adopt such mutually agreeable 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.
  9. A signor of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Agreement.
  10. This Agreement shall be binding on the Beachcomber Association and its successors in interest in ownership or operation of the Beachcomber Resort, and the Beachcomber Association has a duty to so notify all such successors in interest.
  11. The Effective Date of this Agreement is the date of the last signature below. This Agreement shall remain in effect for three years from the Effective Date.

 

Agreed and Consented to:

For the UNITED STATES OF AMERICA 

WILLIAM E. FITZPATRICK
Acting United States Attorney
District of New Jersey

/s/ Michael E. Campion
MICHAEL E. CAMPION
Assistant United States Attorney
Chief, Civil Rights Unit

Dated: 12/15/17


For BEACHCOMBER ASSOCIATION

 

/s/ Randy Maier
RANDY MAIER
President of the Beachcomber Condominium Association

 

 

Dated: 12/14/17