IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION


UNITED STATES OF AMERICA,

Plaintiff,

v.

TOP CHINA BUFFET, INC.

Defendant.

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Cause No. IP 02-1038 C Y/F





CONSENT ORDER

Based on the representations of the parties, it appearing to the Court as follows:

1. On July 8, 2002, the United States of America (hereinafter “United States”) filed this action pursuant to Title III of the Americans with Disabilities Act (hereinafter “ADA”), 42 U.S.C. § 12181 et seq.

2. Top China Buffet is a restaurant located at 8028 South Emerson Avenue, Indianapolis, Indiana, and is a place of public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7) and its implementing regulation 28 C.F.R. § 36.104. Top China is the owner and operator of Top China Buffet and as such owns, leases, leases to, or operates a place of public accommodation within the meaning of Title III of the ADA and is subject to its requirements. 42 U.S.C. § 12182(a).

3. Betty Barnett, an adult resident of Indianapolis, Indiana, has injuries to her sacrum and coccyx, torn muscle tendons and ligaments, and permanent nerve damage that substantially limits her ability to engage in one or more major life activities, and she is a person with a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 36.104. Further, Mrs. Barnett uses a service animal, Kirk, to assist her in carrying and recovering dropped or mislaid belongings, fetching items, turning on and off lights, as well as other functions. Kirk is a service animal as defined by the implementing regulations of the ADA because he has been individually trained to specifically provide assistance to Mrs. Barnett because of her disability. 28 C.F.R. § 36.104.
4. Dennis Barnett, an adult resident of Indianapolis, Indiana, is the spouse of Betty Barnett, and is a person related or associated with an individual with a known disability, who has alleged that he was denied equal access to the goods and services of the Defendant as a result of that association, within the meaning of 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205.

5. Jennifer Reardon, an adult resident of Miramar, Florida, is the daughter of Betty Barnett and is a person related or associated with an individual with a known disability, who has alleged that she was denied equal access to the goods and services of the Defendant as a result of that association, within the meaning of 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205.

6. In December 1999, the United States received a complaint from Mrs. Barnett in which she alleged that Top China had violated Title III of the ADA, 42 U.S.C. §§ 12181-89, and its implementing regulation 28 C.F.R. § 36, by refusing to permit Mrs. Barnett to be accompanied by her service animal when Mr. and Mrs. Barnett and their daughter, Ms. Reardon, attempted to have dinner at the restaurant on or about December 4, 1999. In particular, Mrs. Barnett informed the United States that she is a person with a disability who uses a service animal. Kirk wears a blue harness with an identification card identifying him as a service animal. Mrs. Barnett stated that she, her husband, and her daughter went to Top China for dinner, but that employees of the restaurant told her “no dog.” She said that she informed Top China that Kirk was not a pet, but rather a service animal, and she requested Top China modify its policy of “no pets” in the restaurant to permit her to be accompanied by Kirk. She alleged that Top China failed to modify its policies and that it refused to allow Kirk to accompany her in the restaurant.

7. This action was brought to enforce Title III of the ADA against Top China pursuant to the United States’ statutory authority to enforce the ADA. 42 U.S.C. § 12188(b). Specifically, the complaint alleges that Top China failed to reasonably modify its “no pets” policy in violation of the ADA where the modification is necessary to afford its goods and services to individuals with disabilities and where the modification would not fundamentally alter the nature of its goods and services. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. In addition, the complaint alleges that Top China violated the ADA by excluding or otherwise denying individuals equal access to its goods and services because of their association with an individual with a known disability. 42 U.S.C. § 12182(b)(1)(E).

8. During the course of the litigation, Top China was invited to enter into a Consent Order to correct the specified violations of the ADA, and the parties have engaged in good faith negotiations in an effort to resolve this dispute expeditiously and without resort to costly and protracted litigation. As a result of these discussions, Top China has voluntarily agreed to take the steps outlined in this Order to ensure that persons with disabilities have an equal opportunity to enjoy the goods, services, and facilities of the Top China Buffet restaurant.

Accordingly, by consent of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED that:

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

10. This Court has authority to grant equitable relief, damages, and civil penalties pursuant to 42 U.S.C. § 12188(b)(2) and 28 U.S.C. §§ 2201, 2202.

11. Consistent with the law, the Defendant shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of Top China by excluding or providing unequal treatment to persons with disabilities who use service animals.

12. The Defendant shall adopt, maintain, and enforce such policies on the treatment of customers using service animals as attached hereto and by reference incorporated herein as Exhibit 1 to this Consent Order. Top China expressly acknowledges that it has formally adopted this policy as its own.

13. Within 15 days of the entry of this Consent Order, the Defendant shall issue a written communication to all employees, in English and other languages as appropriate, advising them of the substance of the policy set forth in Exhibit 1. In addition, the Defendant shall provide training concerning this policy to all employees within 30 days of the entry of this Consent Order. Defendant shall provide the United States Attorney for the Southern District of Indiana with proof of the issuance of this communication to employees and the training. Further, the policy shall be posted at all times in a conspicuous area where employees can readily read the policy. Further, the Defendant shall provide training to all newly hired employees within the first 20 hours of employment as to the policy set forth in Exhibit 1.

14. Within 60 days of the entry of this Consent Order, the Defendant shall develop a poster or sign, not less than 2' x 2', stating “Individuals with disabilities accompanied by their service animals are welcome at the Top China Buffet Restaurant.” The sign shall comply with the requirements of § 4.30 of the ADA Accessibility Guidelines for Buildings and Facilities (hereinafter referred to as the “ADAAG”) as contained in Appendix A to 28 C.F.R. Part 36, including the requirement that the message be stated in Braille. Within 120 days of the entry of this Consent Order, pursuant of § 4.30 of the ADAAG, the Defendant shall install the sign on the wall or window adjacent to the latch side of the entry door of the restaurant at a height of 60 inches from the finished floor to the centerline of the sign and provide proof of this sign to the United States Attorney for the Southern District of Indiana.

15. Within 30 days of the entry of this Consent Order, the Defendant shall pay to Betty Barnett the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) as monetary damages. This payment shall be made by check payable to Betty Barnett and delivered to the United States Attorney’s Office, Southern District of Indiana.

16. Within 30 days of the entry of this Consent Order, the Defendant shall pay to Dennis Barnett the sum of ONE THOUSAND TWO HUNDRED FIFTY DOLLARS ($1,250.00) as monetary damages. This payment shall be made by check payable to Dennis Barnett and delivered to the United States Attorney’s Office, Southern District of Indiana.

17. Within 30 days of the entry of this Consent Order, the Defendant shall pay to Jennifer Reardon the sum of ONE THOUSAND TWO HUNDRED FIFTY DOLLARS ($1,250.00) as monetary damages. This payment shall be made by check payable to Jennifer Reardon and delivered to the United States Attorney’s Office, Southern District of Indiana.

18. In furtherance of the public interest, the Defendant shall also pay a civil penalty to the United States of America in the amount of TWO THOUSAND FOUR HUNDRED DOLLARS ($2,400.00). The civil penalty shall be paid through payments of ONE HUNDRED
DOLLARS ($100.00) per month, which shall be due and payable beginning on December 5, 2003, and thereafter on the 5th of each month until the entire amount of civil penalty is fully paid except that the final installment of the entire amount due the United States under this Decree, if not sooner paid, shall be due and PAYABLE November 5, 2005. Payments are to be made by check payable to the United States Department of Justice and delivered to the United States Attorney’s Office, Southern District of Indiana, 10 West Market Street 2100, ATTN: Financial Litigation Unit, Indianapolis, Indiana 46204. If the financial circumstances of Top China should change so as to affect their ability to pay the civil penalty as provided for under this Consent Order, the United States may agree to different terms for payment of the civil penalty. Any change in the terms for payment of the civil penalty shall not affect the remaining terms of this Consent Order in any way. The parties will attempt in good faith to resolve any issues regarding payments prior to seeking intervention by this Court.

19. The civil penalty required by this Consent Order is a debt to the United States subject to the Federal Debt Collection Procedures Act of 1990, as amended, 28 U.S.C. §§ 3001 through 3308.

20. Violation of this Consent Order shall constitute a subsequent violation within the meaning of 42 U.S.C. § 12188(h)(2)(c). If the Court makes a determination of a violation of this Consent Order, the Court may award damages to any person aggrieved by the violation and impose an appropriate civil penalty. Failure of the United States to seek enforcement of this 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 Order. Should new disputes arise between the parties involving other than the fulfillment of the terms of this Order, those disputes are independent matters which must be presented to the appropriate administrative or judicial forum.

21. The Defendant has consulted with its attorney concerning this Consent Order and hereby affirms that its agreement to the terms of this Order is based upon and made in reliance upon its discussions with its counsel.

22. The orders contained in this Consent Order shall be effective for two years following entry of this decree.

23. There are no other terms of this Order.
Entered and Ordered this _13____ day of __November___________, 2003.

/s/ Richard L. Young
United States District Judge

Agreed and Consented to:

For the United States of America:














Dated: 10/24/03




Dated: 10/23/03




Dated: 10/23/03
















Dated: 10/6/03



















JOHN ASHCROFT
Attorney General for the United States

R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division

JOHN L. WODATCH
Disability Rights Section/Civil Rights Division
United States Department of Justice
P.O. Box 66738
Washington, D.C. 20035

/s/ Susan W. Brooks
Susan W. Brooks
United States Attorney


By: /s/ Jill E. Zengler
Jill E. Zengler
Chief, Civil Division


/s/ Debra G. Richards
Debra G. Richards
Assistant United States Attorney
10 West Market Street
Indianapolis, IN 46204






For Top China Buffet, Inc.




/s/ Kwai Y. Poon
Kwai Y. Poon
Representative of Top China Buffet, Inc.
8028 South Emerson Avenue
Indianapolis, IN




__________________________











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EXHIBIT 1
TOP CHINA BUFFET, INC.
CORPORATE POLICY

Statement of Commitment:

Top China Buffet is committed to making reasonable modifications to its policies, procedures and practices to permit the use of service animals by its customers with disabilities. Service animals play an important role in ensuring the independence of people with disabilities and it is therefore our policy to welcome any animal that is individually trained to assist a person with a disability into our business.

Employee Requirements With Regard to Service Animals:

Most of the time, an individual with a disability who uses a service animal may be easily identified without any need for questioning. When the customer enters the restaurant with a service animal:

1. Permit the service animal to accompany the individual with a disability to all areas of the restaurant where customers are normally allowed to go;

2. Do not ask a customer with a disability for proof of his or her disability;

3. An animal may be determined to be a service animal where:

A. The animal is wearing a harness or tag that identifies it as a service animal; OR

B. The animal has an identification card that identifies it as a service animal; OR

C . The person who has the animal tells you that the animal is a service animal and is not a pet;

4. Do not require that the individual with a service animal sit in a separate or isolated area from other customers;

5. Direct any questions or clarification concerning this policy and procedure to the appropriate management;

6. Conduct any discussions with a customer in such a manner so as to avoid any possible embarrassment to the customer; and

7. Use good judgment in determining whether there is any need to question the customer.

What is a Service Animal?

Service animals perform some of the functions and tasks that the individual with a disability cannot perform for him or herself. Service animals are not always dogs, other animals may assist persons with a disability. Service animals come in all breeds and sizes, may be trained either by an organization or by an individual with a disability, and need not be certified or licensed. Service animals do not always have a sign or symbol indicating they are service animals. A service animal is not a pet. Service animals assist persons with disabilities in many day-to-day activities, including:

- Assisting persons who are blind or have a sight impairment.

- Alerting persons with hearing impairments to sounds.

- Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.

- Assisting persons with mobility impairments with balance.



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March 25, 2004