UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS



UNITED STATES OF AMERICA,

Plaintiff,

v. )

FRIENDLY ICE CREAM CORPORATION, )

Defendant.


CIVIL ACTION NO.


CONSENT ORDER



I. BACKGROUND

1. The United States brought this action to enforce Title III of the Americans with Disabilities Act ("ADA"), pursuant to 42 U.S.C. § 12188(b)(1)(B), and 28 U.S.C. §§ 1331 and 1345, against the Friendly Ice Cream Corporation ("the FICC"). The United States alleges that FICC has violated title III of the ADA, 42 U.S.C. §§ 12181-12189, and the Department of Justice's Title III implementing regulation, 28 C.F.R. pt. 36.

2. Specifically, the Complaint alleges that the FICC, at many of those restaurants owned by the FICC and identified in Attachment A to this Consent Order (hereinafter "Restaurant List") has failed to remove architectural barriers to access to the extent that removal of such barriers is readily achievable, as that term is used in 42 U.S.C. § 12182(2)(A)(iv); 28 C.F.R. § 36.304. Architectural barriers prevent or restrict access to such restaurants by individuals with disabilities, including individuals who use wheelchairs, in that several features, elements, and spaces of a facility are not accessible to or usable by individuals with disabilities, as specified in the Department's Title III implementing regulation. See 28 C.F.R. § 36.406 and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.

3. The FICC denies that it has violated Title III of the ADA or the implementing regulations and states that it is committed to full compliance with the Americans with Disabilities Act and to ensuring that persons with disabilities have an opportunity equal to that of other persons to enjoy the goods and services the FICC offers at its restaurants. The FICC further states that it has removed certain architectural barriers and that, to demonstrate its commitment to access, the FICC has agreed to remove additional architectural barriers in order to provide further access to individuals with disabilities.

4. The FICC has agreed to remove architectural barriers, including impediments that prevent access by people who use wheelchairs, such as steps and curbs. The FICC has also agreed to remove architectural barriers by altering doorways and restrooms that are currently inaccessible to individuals with disabilities. In addition, the FICC has agreed to remove other impediments, such as, among other things, objects that protrude into the path of travel and present a danger to customers with vision impairments; telephones, mirrors, and paper towel dispensers that are mounted at a height that makes them inaccessible to people using wheelchairs; and conventional doorknobs that impede access to people who have limited dexterity.

5. The FICC contends that at this time it is not readily achievable to remove certain architectural barriers. In particular, the FICC contends that, at certain FICC restaurants, it is not readily achievable to make toilet facilities fully accessible without a significant loss of selling or serving space. Based on information provided by the FICC to the Department of Justice regarding toilet facilities, the parties have agreed that the FICC shall not be required to remove all barriers from certain toilet facilities.

6. In addition to agreeing to remove architectural barriers, the FICC has agreed to modify or institute certain policies in order to make its restaurants more accessible. Examples of such policies include providing menus in an audio format for, or reading menus to, customers with vision impairments and assisting customers with mobility or dexterity impairments access goods in self-service areas.

7. In light of the FICC's agreement to remove additional barriers at its facilities, the parties have determined that the United States's suit should be resolved without admission of any wrongdoing through entry of this Consent Order, without the need for protracted litigation. The FICC, thus, agrees to take the steps outlined in this Consent Order. This Consent Order constitutes a compromise of legal claims that the United States has under the ADA. This Consent Order is final and binding on the FICC, including all principals, agents, and successors in interest of the FICC, as well as any person acting in concert with the FICC. This Consent Order is also binding on the Department of Justice in all jurisdictions in which the FICC operates.


8. The parties stipulate as follows:

a. This Court has jurisdiction of this action under 42 U.S.C. § 12188(b)(1)(B) and 42 U.S.C. §§ 1331 and 1345.

b. The FICC, which has its principal place of business at 1855 Boston Road, Wilbraham, Massachusetts, is a public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(B), and its implementing regulation at 28 C.F.R. § 36.104

c. The FICC owns and operates each of the restaurants identified in the Restaurant List.

d. Each of the restaurants identified in the Restaurant List is a place of public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(B), and its implementing regulation at 28 C.F.R. § 36.104.

e. The FICC has agreed to remove additional architectural barriers to accessibility at the restaurants identified in the Restaurant List to the extent that removal of such barriers is readily achievable. Specifically, the FICC has agreed to remove architectural barriers as required by this Consent Order.


II. GENERAL PROVISIONS

A. Definitions.

The terms used herein shall be construed in accordance with the definitions set forth in Section 3.4 of the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (hereinafter "Standards").

B. Compliance Program.

In order to remove additional barriers to accessibility at its restaurants, the FICC shall make structural and other modifications necessary to bring each of the restaurants on the Restaurant List into compliance with this section, in accordance with the schedule set forth in section II.C. below.

1. Accessible Parking.

(a) Required Minimum Number: At each restaurant at which the FICC provides parking spaces, the FICC shall provide accessible parking in conformance with Standards § 4.1.2(5)(a) and the following table:

TOTAL REQUIRED MINIMUM #

PARKING OF ACCESSIBLE SPACES

1 to 25: 1

26 to 50: 2

51 to 75: 3

76 to 100: 4

101 to 150: 5

151 to 200: 6

(b) Each accessible parking space provided by the FICC shall comply with the following requirements:

(i) Location: Each accessible parking space shall be located on the shortest accessible route of travel from the parking area to the accessible entrance and the carry-out service area. The FICC shall provide accessible parking in two locations when the accessible entrance and the carry-out service area are not adjacent to each other.

(ii) Car Spaces: Each accessible car space shall be a minimum of 8 feet wide and shall have an access aisle adjacent to it. Each such access aisle shall be a minimum of 5 feet wide, shall be striped, and shall have a slope of no greater than 1:50 in all directions. Access aisles may be shared by two adjacent accessible spaces. Signage shall comply with Standards § 4.6.4. and be visible over or next to a parked vehicle. The vertical clearance at such spaces shall comply with Standards § 4.6.5.

(iii) Van Spaces: One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 inches in width minimum and shall be designated "Van Accessible" with visible signage as required by Standards § 4.6.4. and be visible over or next to a parked van. The vertical clearance at such spaces shall comply with Standards § 4.6.5.

(iv) Passenger Loading Zones: If the FICC provides passenger loading zones at any restaurant, then at least one passenger loading zone at that restaurant shall comply with Standards § 4.6.6. Signage at such passenger loading zones shall comply with 4.1.2(7).

2. Accessible Routes To An Accessible Entrance And To Accessible Goods And Services.

(a) The FICC shall provide at least one accessible route complying with Standards § 4.3 within the boundary of the site from accessible parking spaces and public transportation stops to an accessible building entrance.

(b) At least one accessible route complying with Standards § 4.3 shall connect accessible facilities, accessible elements, and accessible spaces that are on the same site, including the Main Entrance, Carry-Out Entrance, and Outdoor Eating Space. Such accessible route should, to the maximum extent feasible, coincide with the route used by the general public.

(c) In providing an accessible route the following criteria shall be met:

(i) Protruding Objects: All objects (e.g. coat hooks, signs, telephones) that protrude from surfaces or posts into circulation paths shall comply with Standards § 4.4.

(ii) Ground and Floor Surfaces: Ground and floor surfaces along accessible routes and in accessible spaces shall comply with Standards § 4.5.

(iii) Signage: Signage at each accessible entrance (when not all entrances at a restaurant are accessible) and at each inaccessible entrance indicating the location of the nearest accessible entrance shall be provided as required by Standards §§ 4.1.2(7), 4.1.3(8)(d), and 4.3.

(iv) Exterior Stairs: Exterior stairs connecting levels that are not connected by a ramp or other accessible means of vertical access shall comply with 4.9.

(v) Width: The minimum clear width of an accessible route shall be 36 inches, except at doors (see section II.B.3., below), and shall otherwise comply with Standards 4.3.3.

(vi) Passing Space: On accessible routes less than 60 inches wide, the FICC shall provide passing spaces that comply with Standards 4.3.4.

(vii) Slope: An accessible route with a running slope greater than 1:20 is a ramp and shall comply with Standards § 4.8. Nowhere shall the cross slope of an accessible route exceed 1:50.

(viii) Changes in Levels: Changes in levels along an accessible route shall comply with Standards § 4.5.2. If an accessible route has changes in level greater than 1/2 inch, then the FICC shall provide a curb ramp that complies with Standards § 4.7 or a ramp that complies with Standards § 4.8. Ramps and curb ramps may not extend into parking spaces, access aisles, or vehicular traffic lanes.

3. Accessible Doors and Vestibules.

Each restaurant on the Restaurant List shall have no fewer than one accessible entrance, one accessible door to each accessible space, and at least two accessible means of egress, if the FICC provides more than one means of egress at that restaurant. Each accessible entrance and means of egress, including the doors and vestibules that are part of such accessible entrance and means of egress, shall comply with Standards § 4.13 and 4.14.

4. Access to Goods and Services.

All dining areas and outdoor seating areas shall be accessible and shall comply with Standards § 5 in at least the following respects:

(a) At least 5 percent of the fixed tables, but not fewer than one fixed table, at each restaurant on the Restaurant List shall be accessible and shall comply with Standards § 4.32. Accessible fixed tables shall be distributed throughout the restaurant. All accessible fixed tables shall be accessible by means of an access aisle at least 36 inches clear, as required by Standards § 5.3.

(b) At each restaurant on the Restaurant List where separate areas are designated for smoking and non-smoking patrons, the required number of accessible fixed tables shall be proportionately distributed between smoking and non-smoking areas.

(c) At each restaurant on the Restaurant List where service is available at counters exceeding 34 inches in height, the FICC shall comply with the requirements of Standards § 5.2.

(d) At each restaurant on the Restaurant List, the FICC shall provide a cash-out counter and a carry-out counter, if they are provided, that comply with the requirements of Standards § 7.2. If it is not readily achievable to provide an accessible carry-out counter, the FICC may, as an alternative, provide reasonably equivalent carry-out service at the cash-out counter, in which event the FICC will post a sign indicating that accessible carry-out service is available at the check-out counter.

(e) The FICC shall, at each restaurant on the Restaurant List, adopt and implement policies and procedures to help individuals with disabilities obtain goods and services that may remain inaccessible after the completion of the Compliance Program set forth herein. Such policies and procedures shall include the provision of auxiliary aids and services, such as providing menus in an audio format for, or reading menus to, customers with vision impairments and assisting customers with mobility or dexterity impairments access goods in self-service areas.

(f) At each restaurant on the Restaurant List where the FICC provides public telephones, such telephones shall comply with Standards § 4.31.

5. Accessible Toilet Facilities.

(a) Except as provided below, in Section II.5.(b) and (c) of this Consent Order, at each restaurant on the Restaurant List where the FICC provides toilet facilities for use by the public, each toilet facility shall comply with Standards § 4.22.

(b) At its option, at each of the restaurants identified in Attachment B hereto, the FICC may provide only one toilet facility that complies with Standards § 4.22. If the FICC chooses this option, the one restroom that complies with Standards § 4.22 shall be open to both men and women with disabilities during all hours of operation.

(c) At each of the restaurants identified in Attachment C hereto, the FICC shall not be required to comply with Standards §§ 4.16.2, 4.17.3, 4.18.3, 4.19.3, and 4.22.2, and 4.22.3.

C. Compliance Schedule.

1. Subject to the provisions of II.C.2. below, the FICC shall make all structural and other modifications required to comply with the Compliance Program set forth in section II.B. above in accordance with the following schedule:

(a) By no later than March 1, 1998, the FICC shall make all required structural and other modifications to 16.67% of the restaurants. In order first to eliminate all barriers to entry into its restaurants, the FICC shall first make those modifications to the restaurants required by sections II.B.2. and II.B.3 above.

(b) By no later than March 1, 1999, the FICC shall make all required structural and other modifications to 33.33% of the restaurants.

(c) By no later than March 1, 2000, the FICC shall make all required structural and other modifications to 50% of the restaurants. (d) By no later than March 1, 2001, the FICC shall make all required structural and other modifications to 66.67% of the restaurants.

(e) By no later than March 1, 2002, the FICC shall make all required structural and other modifications to 83.33% of the restaurants.

(f) By no later than March 1, 2003, the FICC shall make all required structural and other modifications to 100% of the restaurants.

2. In calculating the percentage of compliance achieved under section II.C.1. above, restaurants closed or sold by the FICC prior to having been modified as required by the Compliance Program shall not be included in the numerator or denominator.

D. Reporting Requirement.

From the date this Consent Order is entered, the FICC shall, every six months, produce for counsel for the United States a written report of work performed by the FICC in furtherance of the compliance program set forth in section II.B. above.

E. Inspection by the Department of Justice.

The FICC shall, throughout the duration of this Consent Order, cooperate with the Department of Justice in permitting the Department of Justice to audit, on a random basis, compliance work done at FICC restaurants.

F. Payments.

The FICC shall pay the Department of Justice $50,000, which payment shall be made via electronic fund transfer to the United States within 30 days of the entry of this Consent Order.


III. ENFORCEMENT.

If the United States believes that the FICC has violated this Consent Order or any requirement contained herein, it agrees to attempt to seek an amicable resolution from the FICC. If the violations are not timely resolved, the United States may seek appropriate relief from this Court. If the Court makes a determination of a violation of this Consent Order, the FICC stipulates to the payment of $5,000 for each such violation. The Court may also award damages to any person aggrieved by the violation. Failure by the United States to seek enforcement of this Consent Order with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of the Consent Order.

IV. CONTINUING JURISDICTION

The Court shall retain jurisdiction of this action to enforce the provisions of this Consent Order for seven years from the date of this Consent Order after which time all of its provisions shall be terminated, unless the Court determines it necessary to extend any of the requirements imposed by this Consent Order, in which case those specific requirements shall be extended. In the event that the parties agree that the FICC has completed the barrier removal required by this Consent Order prior to the conclusion of the seven-year period specified by this paragraph, the parties shall so notify the Court and the Court's jurisdiction shall cease at that time.


Entered and Ordered this 23rd day of May, 1997.


/s/ Michael A. Ponsor
United States District Judge



Agreed and Consented to:


THE UNITED STATES

JANET RENO

Attorney General


ISABELLE KATZ PINZLER DONALD K. STERN

Acting Assistant Attorney GeneralUnited States Attorney

Civil Rights Division



JOHN L. WODATCH, Chief By:

Disability Rights Section JOHN A. CAPIN

Civil Rights Division JULIE S. SCHRAGER

U.S. Dept. of Justice Assistant U.S. Attorneys

P.O. Box 66738 1003 J. W. McCormack POCH

Washington, D.C. 20035 Boston, MA 02109

(202) 307-0663 (617) 223-9405



FRIENDLY ICE CREAM CORPORATION



By:

JOSEPH O'SHAUNESSEY

Chief Executive Officer

Friendly Ice Cream Corporation

1855 Boston Road

Wilbraham, MA 01095

(413) 543-2400

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