1. This matter was initiated by a complaint filed under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (Department), regarding the Marriott at Metro Center (Hotel), located at 775 12th Street, N.W., Washington, DC 20005. The complaint was received by the Civil Rights Division of the Department of Justice, under the authority of 28 C.F.R. Part 36, Subpart E. The complaint alleges that the Hotel discriminated against complainants by failing to provide them with an accessible guest room with a roll-in shower.
2. The parties to this Agreement are the United States of America, HMC Retirement Properties, L.P. by Durbin LLC (HMC), and Marriott International, Inc. (Marriott), who shall be referred to collectively as the Parties throughout the Agreement.
3. The Hotel is owned by HMC. The Hotel is operated by Marriott.
4. 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. Id. at § 12188(b)(1)(B).
5. The Hotel is a privately owned and operated place of lodging, providing 456 separate sleeping rooms for guests. 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 Hotel was constructed before the ADAs effective date, and is an existing facility within the meaning of Title III. As a result, the Hotel is subject to Title IIIs architectural barrier removal requirements. 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304. In addition, altered areas of the Hotel are subject to Title IIIs alteration requirements and must meet the ADA Standards for Accessible Design (Standards). 42 U.S.C.
§ 12183(a)(2); 28 C.F.R. §§ 36.402, 36.406.
7. HMC and Marriott agree to undertake barrier removal and to comply with the ADAs requirements for altered areas, as outlined in this Settlement Agreement, to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the Hotels accommodations.
8. HMC and Marriott denied the United States complainants allegations, but cooperated fully with the Department. Without conceding the allegations of the United States, or the possible defense of HMC and Marriott, the Parties agree that it is in their best interests to resolve this matter promptly and without protracted litigation.
9. 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 sections entitled Enforcement and Implementation.
ACTIONS TO BE TAKEN BY HMC AND MARRIOTT
10. The Parties agree that the technical requirements and, where appropriate, the scoping requirements of the ADA Standards for Accessible Design (Standards) will be used as a guide for the purposes of this Agreement. The Standards appear at 28 C.F.R. Part 36, Appendix A.
11. HMC and Marriott agree to complete the installation of a roll-in shower in the bathroom of five (5) designated accessible guest rooms as follows:
(A) Two roll-in showers will be completed and available for inspection by persons designated by the United States no later than July 1, 2004, and available to guests for regular check-in no later than July 6, 2004;
(B) Three roll-in showers will be completed no later than July 12, 2004 and available to guests for regular check-in on that date.
12. Pursuant to Standard 4.21.2, the shower dimensions, the dimensions and location of the folding seat, the location of controls and grab bars, and the dimensions and location of the clear floor space provided shall comply with either Figure 57(a) or 57(b). Pursuant to Standard 4.21.7, the shower stall shall have no curb. Pursuant to Standard 4.21(3), folding seats that are provided in roll-in showers shall be mounted 17 to 19 inches above the shower floor and shall comply with the structural strength requirements of Standard 4.26.3; grab bars shall comply with Standard 4.26; faucets and other controls shall comply with Standard 4.27.4; and a height adjustable shower spray unit with a hose at least 60 inches long that can be used both as a fixed shower head and as a hand-held shower shall be provided according to Standard 4.21.6. Standards §§ 4.21 & Figs. 57(a), 57(b), 9.1.2, 9.2.2(6)(e).
13. The ADA authorizes the Attorney General to seek and a court to award civil penalties in the amount of $55,000 for a first violation of Title III of the ADA and $110,000 for each subsequent violation. 42 U.S.C. § 12188(b)(2)(C) and (b)(3); 28 C.F.R. § 36.504(a)(3) and (b). The United States believes the imposition of a civil penalty in this case is warranted to vindicate the public interest. HMC and Marriott do not believe this is a proper case for a civil penalty.
14. To resolve this matter, HMC and Marriott jointly agree to pay the United States $54,000. HMC and Marriott agree to make the payment in three (3) installments as follows:
(A) Within ten (10) days of this Agreement, HMC and Marriott will pay the first installment in the amount of $18,000. Payment shall be made by forwarding a check made payable to the United States to the following address:
U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYA
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(B) If HMC and Marriott have completed the remedial action required by paragraph 11(A) of this Agreement, then HMC and Marriott will not be required to pay the second installment (i.e., one third of the total amount, equal to $18,000). In the event that HMC or Marriott fail to complete the remedial work required by paragraph 11(A) of this agreement, then HMC and Marriott will pay the second installment to the United States by July 11, 2004.
(C) If HMC and Marriott have completed the remedial action required by paragraph 11(B) of this Agreement on or before July 12, 2004, then HMC and Marriott will not be required to pay the third installment (i.e., one third of the total amount, equal to $18,000). In the event that HMC or Marriott fail to complete the remedial work required by paragraph 11(B) by July 12, 2004, then HMC and Marriott will pay the third installment to the United States by July 22, 2004.
15. The Department of Justice may review compliance with this Agreement at any time. If the Department believes that this Agreement or any requirement(s) thereof has been violated, it may institute a civil action in federal district court to enforce this Agreement or the requirements of Title III, following written notice to HMC and Marriott of possible violations.
16. Failure by the Department to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the Departments right to enforce other deadlines and provisions of this Agreement.
17. This Agreement shall be binding on HMC and Marriott and their successors in interest. HMC and Marriott have a duty to notify all such successors in interest of this Agreement and the duties and responsibilities it imposes on any successor.
18. This Agreement is a public document. A copy of this document or any information contained in it shall be made available to any person by HMC, Marriott, or the Department on request.
19. The effective date of this Agreement is the date of the last signature below.
20. 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, will be enforceable under its provisions.
21. 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 the continuing responsibility of HMC and Marriott to comply with all aspects of the ADA.
22. 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 HMC and Marriott has been achieved, whichever is earlier.
23. The persons signing this document for HMC and Marriott represent that they are authorized to bind HMC Retirement Properties, L.P., and Marriott International, Inc., to this Agreement.
For HMC Retirement Properties, L.P.
By it's General Partner, Dubin, LLC:
For the United States:
Craig A. Mason
Executive Vice President
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
RENEE WOHLENHAUS, Deputy Chief
DOV LUTZKER, Trial Attorney
Disabilty Rights Section- NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue., N.W.
Washington , DC 20530
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February 1, 2005