CHRISTOPHER J. CHRISTIE
United States Attorney
MICHAEL A. CHAGARES
Assistant U.S. Attorney
Mitchell S. Cohen U.S. Courthouse
4th & Cooper Street, Room 2070
Camden, New Jersey 08101
(609) 757-5412
LB-3903
JOHN ASHCROFT
Attorney General of the United States
R. ALEXANDER ACOSTA
Assistant Attorney General
For Civil Rights
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Litigation Counsel
ALLISON J. NICHOL, Deputy Chief
HAROLD L. JACKSON, Attorney
U.S. Department of Justice
Civil Rights Division
Disability Rights Section-NYA
950 Pennsylvania Ave. NW
Washington, D.C. 20530
Telephone: (202) 305-7624
Facsimile: (202) 616-6862
DS-4529
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, Plaintiff,
ALI-ANN, INC., d/b/a KAMINSKI'S
and FRANK W. BOTTINI,
Defandants.
______________________________________
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Civil Action No. 03-CV-2299 (JHR)
CONSENT ORDER AND JUDGEMENT
Jurisdiction
1. This Court has jurisdiction over this action under 42 U.S.C. § 12188(b)(1)(B), and 28 U.S.C. §§ 1331 and 1345.
2. This Court has authority to grant equitable relief, monetary damages and civil penalties under 42 U.S.C. § 12188(b)(2) and 28 U.S.C. § 2201 and 2202.
Contentions of the Parties
3. Defendant Ali-Ann, Inc. (“Ali-Ann”) is a New Jersey corporation that did business as Kaminski’s. Kaminski’s was a restaurant in Cherry Hill, New Jersey, and the facility that housed Kaminski’s is still used as a restaurant. Kaminski’s was owned by Ali-Ann.1
4. Defendant Frank W. Bottini is an individual who owned the real property that was leased to defendant Ali-Ann for its operation of Kaminski’s, as well as the parking lot that served Kaminski’s customers.
5. Ali-Ann is a private entity that owned, leased, or operated a place of public accommodation within the meaning of section 301, 42 U.S.C. §12181, and is, at all relevant times, a public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104. Ali-Ann is thus subject to the requirements of title III of the ADA, 42 U.S.C. §§ 12181 - 12189.
6. Bottini is an individual who owned the facility at 1424 Brace Road, Cherry Hill, New Jersey and leased those premises to Ali-Ann for use as the restaurant known as Kaminski’s. Bottini is the sole shareholder of defendant Ali-Ann.
7. United States Department of Justice (“DOJ”) is the federal agency responsible for administering and enforcing title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189.
8. The United States filed a Complaint against defendants on May 20, 2003, in the U.S. District Court for the District of New Jersey. The Complaint alleges that defendants’ failure to remove barriers constitutes a pattern or practice of discrimination and raises issues of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B), and that the complainant, Kathleen Mastrogiovanni, was unlawfully denied an equal opportunity to enjoy the goods and services of defendants’ restaurant.
9. The United States asserts specifically that defendants’ conduct discriminated against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation, in violation of 42 U.S.C. § 12182(a) and 28 C.F.R. § 36.201(a) by failing to remove architectural barriers when it was readily achievable to do so, in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and 28 C.F.R. § 36.304.
10. Defendants filed an Answer to the Complaint denying each of the allegations in paragraphs 8 and 9.
11. The parties wish to resolve this matter without resort to further litigation, and believe that resolution of this matter is in the public interest.
WHEREFORE, the parties hereby agree and stipulate to the Court’s entry of this Consent Order and Final Judgment, which provides as follows:
12. Settlement of Litigation
This Order shall be a full, complete, and final disposition and settlement of all of the United States’ claims and those of the complainant that have arisen out of the Complaint. Nothing herein shall be construed as an admission by defendants of any violation of title III of the ADA or any other law.
13. Injunctive Relief
Defendants agree not to discriminate against any patron with a disability who has a mobility impairment with regard to their seeking to gain physical access to any restaurant defendants own, operate, lease or lease to others now or in the future.
14. Releases and Monetary Relief
Within thirty (30) days of the date of this Order, defendants shall send, return receipt requested, the release form attached as Appendix A to Kathleen Mastrogiovanni. In that release, Ms. Mastrogiovanni will agree to be bound by the terms of this Order. Within thirty (30) days of receiving the signed release form defendants shall send via registered mail a check to Ms. Mastrogiovanni the amount of Seven Thousand Dollars ($ 7,000.00), and shall also provide the United States with a copy of the signed release and the check .
15. Civil Penalties
Defendants shall pay Three Thousand Dollars ($3,000.00) to the United States within thirty (30) days after this Consent Order and Final Judgment are entered by the Court.
16. Reporting Requirements
Within ninety (90) days from the effective date of this agreement, defendants will submit a report to the Department summarizing the actions they have taken pursuant to this Order. The report will describe the payments made pursuant to paragraphs 14 and 15. The report will also include copies of the check and the cover letter to Kathleen Mastrogiovanni pursuant to paragraph 14.
17. Monitoring
The United States may review compliance with this Order. If the United States believes that defendants are not in compliance with this Order or any requirement contained herein, the United States agrees to notify defendants in writing of the alleged noncompliance and to attempt to seek a resolution of the matter with defendants. Defendants shall have thirty (30) days in which to correct the noncompliance. If the parties are unable to reach a resolution, the United States may seek appropriate relief from this Court. Failure by the United States to seek enforcement of or relief under this Order, or any of its provisions, shall not be construed as a waiver of the United States’ rights under this Order.
18. Notice
All notices, reports, or other such documents required by this Consent Order shall be sent to the parties by fax or by hand delivery at the following addresses or to such other person as the parties may designate in writing in the future:For notices to the Department:
John L. Wodatch, Chief
Attention: Harold L. Jackson
Disability Rights Section
Civil Rights Division
U.S. Department of Justice-NYA
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202) 616-6862 (facsimile)
For notices to defendants:
Frank W. Bottini
13 Congress Circle
Medford, NJ 08055
Steven W. Suflas, Esquire
Ballard, Spahr, Andrews & Ingersoll
Plaza 1000, Suite 500
Main Street
Voorhees, NJ 08043-463619. Entire Consent Order
This Consent Order, and any appendices attached, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Consent Order, shall be enforceable regarding the matters raised herein.
20. Public Document
This Consent Order is a public document. A copy of this document, and any information contained herein, may be made available to any person.
21. Consent Order Binding on Parties and Successors in Interest
This Consent Order shall be binding on the United States, Bottini, and Ali-Ann, and the successors in interest of Ali-Ann. Ali-Ann has a duty to so notify all such successors in interest of the existence and terms of this Consent Order.
22. Term of the Consent Order
This Consent Order shall remain in effect for three (3) years after the date of its entry.
23. Enforcement of Consent Order
The United States’ Complaint against the defendants shall be dismissed with prejudice, except that the United States may petition the Court, at any time during the duration of this Order, to reopen the case for the purpose of enforcing the Order, and this Court shall retain jurisdiction to enforce this Order. The parties to this Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution.
24. Severability
If any term of this Consent Order is determined by any court to be unenforceable, the other terms of this Consent Order shall nonetheless remain in full force and effect
25. Signatories Bind Parties
Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Order.
COUNSEL FOR THE UNITED STATES:
Dated: August 31, 2004
Dated:
Dated:
Dated: 8/25/04
JOHN ASHCROFT
Attorney General for the United States
R. ALEXANDER ACOSTA
Assistant Attorney General
For Civil Rights
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Litigation Counsel
ALLISON J. NICHOL, Deputy Chief
___________________________________
HAROLD L. JACKSON
Trial Attorney
Disability Rights Section-NYA
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202)305-7624
(202)616-6862 (facsimile)
ALI-ANN, INC., d/b/a Kaminski's:
___________________________________
FRANK W. BOTTINI:
___________________________________
COUSEL FOR THE DEFENDANTS:
___________________________________
STEVEN W. SUFLAS
Ballard Spahr Andrews & Ingersoll, LLP
Plaza 1000, Suite 500 - Main Street
Voorhees, NJ 08043
(856) 761-3466
(856) 761-9037 (facsimile)
Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.
Dated: September 8, 2004
By: ______________________________UNITED STATES DISTRICT JUDGE
1During the pendency of this case, Ali-Ann sold Kaminski's to purchasers who negotiated separately with the United States regarding improvements to the property. Therefore, injunctive relief consisting of architectural modifications to be made to the facility is covered by a separate agreement between the purchasers and the United States.
APPENDIX A
THE UNITED STATES OF AMERICA v. ALI-ANN, INC., d/b/a
RELEASE FORM
KAMINSKI’S, and FRANK W. BOTTINI,
Civil No. 03-CV-2299 (JHR)
United States District Court for the District of New Jersey
For and in consideration of the payment of monetary compensation made by Ali-Ann, Inc. and Frank W. Bottini, (hereinafter "the defendants") pursuant to the provisions of the Consent Order entered into between the defendants and the United States in the above-referenced matter, I, Kathleen Mastrogiovanni, hereby release and forever discharge the defendants, their current and past and future officials, employees and agents, of and from any legal and equitable claims arising out of this matter, including any claims under the American With Disabilities Act.
This Release constitutes the entire agreement between myself and the defendants without exception or exclusion. This Release will be considered null and void in the event that the defendants fail to send a check for the monetary compensation of Seven Thousand Dollars ($ 7,000.00) in compensatory damages in accord with the terms of the Consent Order, within thirty (30) days of its signing of the Consent Order. I acknowledge that a copy of the Consent Order has been made available to me.
I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.Signed this _____ day of ________, 2004.
__________________________________
Kathleen MastrogiovanniSocial Security Number: __________________
(Return to Consent Order)
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March 24, 2005