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WHEREAS, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., provides, among other things, that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a); and

WHEREAS, the term “public accommodation” under the ADA includes “a restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. § 12181(7)(B); and

WHEREAS, the ADA authorizes the United States Department of Justice to “undertake periodic reviews of compliance of covered entities,” 42 U.S.C. § 12188(b)(1)(A)(i); and

WHEREAS, the United States Attorney’s Office for the Southern District of New York (the “United States”), pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), commenced a limited review of certain restaurants in New York City to determine, with respect to the specific areas reviewed, whether those restaurants were operating in compliance with Title III of the ADA (the “Compliance Review”); and

WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of Blue Smoke (the “Restaurant”) located at 116 East 27^th Street, New York, New York;

WHEREAS, the United States conducted a limited site inspection of certain features and facilities within the Restaurant, and met with representatives of the Restaurant; and

WHEREAS, the United States and the Restaurant share the goal of resolving the Compliance Review and ensuring that the Restaurant operates in compliance with Title III of the ADA; and

WHEREAS, in light of the actions taken by the Restaurant to date to comply with the ADA, the actions taken by the Restaurant during the period of the Compliance Review, and the actions that the Restaurant has agreed to take within the next three years as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to the Restaurant as a result of this Compliance Review;

NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF THE RESTAURANT, AS FOLLOWS:

I. APPLICATION AND PARTIES BOUND

1. The Restaurant is a place of public accommodation within the meaning of 42 U.S.C. §12181(7) because, among other things, it is “a restaurant, bar, or other establishment serving food or drink.”  42 U.S.C. § 12181(7)(B); See 28 C.F.R. § 36.104.

2. 116 Associates (the “Owner”) is a public accommodation within the meaning of Title III of the ADA because it owns the building within which the Restaurant, a place of public accommodation, resides.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

3. Blue Smoke, LLC (the “Operator”) is a public accommodation within the meaning of Title III of the ADA because it operates the Restaurant, a place of public accommodation.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

4. This Agreement shall be binding on the Owner and the Operator, and each of their agents and employees.  In the event the Owner seeks to transfer or assign all or part of their interest in the Restaurant, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale the Owner shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.

5. This Agreement shall apply to all public use areas within the Restaurant.  This includes, but is not limited to: public entrances, waiting areas, bar areas, dining areas, toilet rooms, and corridors.  This Agreement shall not apply to employee work areas, such as food preparation and storage locations, and other service-related areas.

II. DEFINITIONS

6. For purposes of this Agreement, the term “Standards” means the 2010 Standards for Accessible Design (“2010 Standards”), which consist of the 2004 ADA Accessibility Guidelines (“ADAAG”), appendices B and D to 36 C.F.R. Pt. 1191, and the requirements contained in subpart D of 28 C.F.R. Pt. 36, 28 C.F.R. § 36,104.

7. For purposes of this Agreement, the term “accessible” means in compliance with the Standards.

8. For purposes of this Agreement, the term “alterations” means a change to the Restaurant that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, “remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.” See 28 C.F.R. § 36.402(b)(1).

III. RESERVATIONS AND FOOD ORDERING PROCEDURES

9. The Restaurant shall accept relay calls.  See 28 C.F.R. § 36.303.

IV. MAIN PUBLIC ENTRANCE

10. The Restaurant shall ensure that its main public entrance at 116 East 27^th Street, New York, NY 10016 is readily accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility.  For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if it maintains its main public entrance in the condition as it existed at the time of the Government’s inspection on November 29, 2012.  The Restaurant shall notify the United States, through undersigned counsel, in writing if it makes any alteration of the main public entrance during the term of this Agreement. 

V. HOST STATION

11. The Restaurant shall ensure that the routes from the entrance to the host station and from the host station to the seating area are accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility.  For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if it maintains its host station in the condition as it existed at the time of the Government's inspection on November 29, 2012.  The Restaurant shall notify the United States, through undersigned counsel, in writing if it makes any alteration of the host station, or any alteration of accessible routes from the entrance to the host station and from the host station to the seating area, during the term of this Agreement.  See 2010 Standards §§ 206.2.4 and Chapter 4.

VI. DINING AND BAR AREAS

12. The Restaurant shall ensure that 5% of the total number of fixed seating or standing locations in the Restaurant’s dining areas is accessible to persons with disabilities, such that four (4) seating locations are accessible.  Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route.  See 2010 Standards §§ 206.2.4, 226.1, 902 and Chapter 4.  Specifically, at the time of the Government’s inspection on November 29, 2012, the following barrier to accessibility was present:

13. Since the Government’s inspection on November 29, 2012, the Restaurant has modified six (6) of the banquette dining surfaces to provide clear floor space a minimum of 30 inches wide, 27 inches high, and a minimum of 48 inches deep positions for a forward approach, knee and toe clearance extending a minimum of 17 inches and dining surface 28 inches minimum and 24 inches maximum above the finish floor.  The Restaurant may satisfy the requirements of Paragraph 12 if it maintains at least as many accessible seating and standing locations as it had after making the modifications described in this paragraph.

14. Accessible seating shall be distributed throughout the Restaurant in compliance with the 2010 Standards § 226.2.

15. The Restaurant shall provide accessible seating in the bar area so that 5% of the total number of fixed seating or standing locations in the bar area is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility, such that one (1) table is accessible.  The Restaurant may satisfy the requirements of this paragraph by lowering a portion of the bar to 34 inches maximum above the finish floor or providing accessible tables in the bar area.  See 28 C.F.R. § 36.302; 2010 Standards §§ 226.1, 902.2, 305, 306, 902.3. Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route.  See 2010 Standards §§ 206.2.4 and Chapter 4.  For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if it maintains its bar area in the condition as it existed at the time of the Government’s inspection on November 29, 2012.  The Restaurant shall notify the United States through undersigned counsel, in writing if it makes any alteration of the bar area during the term of this Agreement.

16. The Restaurant shall ensure that 5% of the total number of seating or standing locations in the Restaurant’s outdoor or patio dining area is accessible to persons with disabilities, such that one (1) table is accessible.  Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route.  See 2010 Standards §§ 206.2.4, 226.1, 902 and Chapter 4.  Specifically, at the time of the Government’s inspection on November 29, 2012, the following barrier to accessibility was present:

17. Since the Government’s inspection on November 29, 2012, the Restaurant has modified the outdoor dining table designated as accessible so that it has clear floor space measuring 30 ½ inches wide and a minimum of 48 inches deep positioned for a forward approach, knee and toe clearance extending a minimum of 17 inches, and a dining surface at 28 inches above the finish floor.  The Restaurant may satisfy the requirements of Paragraph 16 if it maintains the outdoor dining area in the condition it is in after making the modifications described in this paragraph.  The Restaurant shall notify the United States through undersigned counsel, in writing if it makes any alteration of outdoor dining area during the term of this Agreement.

VII. RESTROOMS

18. The Restaurant shall ensure that there is an accessible route from each accessible seating location to the accessible restrooms. See 2010 Standards §§ 206.2.4 and Chapter 4.

19. The Restaurant shall provide a minimum of one accessible toilet room for each sex or a minimum of one accessible unisex toilet room. See 2010 Standards §§ 206.5, 213, 304.3, 404, 603, 604, 605, 606.  Specifically, at the time of the Government’s inspection on November 29, 2012, the following barriers to accessibility were present:

20. Since the Government’s inspection on November 29, 2012, the Restaurant has modified the men’s and women’s restrooms as follows: (1) moved a partition in the men’s restroom to provide a toilet stall that is 60 inches wide, (2) replaced the seat of the toilet in the men’s and women’s restrooms so that they are 18 ¾ inches above the finish floor, and (3) relocated the grab bar on the side wall to be 12 inches from the rear wall for a total length (wall to front grab bar) of 54 inches.  The Restaurant may satisfy the requirements of Paragraph 19 if it maintains the restrooms in the condition it is in after making the modification described in this paragraph.  The Restaurant shall notify the United States through undersigned counsel, in writing if it makes any alteration of the men’s and women’s restrooms during the term of this Agreement.

VIII. POLICIES, PRACTICES, AND PROCEDURES

21. The Restaurant shall establish a written policy specifically addressing the provision of services to individuals with disabilities.

22. The Restaurant’s policy shall specify, among other things, that

IX. ALTERATIONS

23. The Owner and Operator acknowledge and agree that any alteration to the Restaurant “shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” See 28 C.F.R. § 36.402(a).  The Owner and Operator further acknowledge and agree that, if an alteration affects or could affect the usability of or access to an area of the Restaurant 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 and 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.  See 28 C.F.R. § 36.403(a)(1).  The Owner and Operator agree to notify the United States, in writing, of any alterations to the Restaurant commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.

X. MONITORING AND COMPLIANCE

24. Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, the Restaurant shall provide to the United States a narrative report of the actions taken during the reporting period, if any, to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at the Restaurant and any plans for action concerning ADA compliance in the coming year.  The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Restaurant was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.  If no actions were taken during the reporting period, then the report shall state as such.

25. The Owner and Operator of the Restaurant shall cooperate in good faith with any and all reasonable requests by the United States for access to the Restaurant and for information and documents concerning the Restaurant’s compliance with this Agreement and the ADA. 

26. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Restaurant and communications with Restaurant staff.  The United States shall have the right to inspect the facility at any time, and counsel for the United States need not identify themselves in the course of visits to the public areas.

XI. ENFORCEMENT

27. If the United States believes that this Agreement or any of its requirements has been violated, it will notify the Owner and Operator of the Restaurant in writing and attempt to resolve the issue or issues in good faith.  If the United States and the Owner and Operator of the Restaurant are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.

XII. GENERAL PROVISIONS

28. In consideration for the Restaurant’s timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review of the Restaurant, except as provided in the Enforcement portion of this Agreement.  The United States reserves the right to investigate any complaint it receives concerning the Restaurant, to initiate future compliance reviews concerning the Restaurant with respect to any aspect of the Restaurant or its operation not expressly addressed in Parts III through VIII of this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA.  In the event the United States receives and investigates an ADA complaint concerning the Restaurant, or commences any future compliance review concerning the Restaurant, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Restaurant or preclude the United States from seeking relief beyond that required under this Agreement.

29. A copy of this Agreement shall be made available to any person upon request.

30. The Effective Date of this Agreement is the date of the last signature on the Agreement.  The term of this Agreement is three years from the Effective Date. 

31. This Agreement memorializes the commitments made by the Owner and Operator of the Restaurant to increase accessibility of the Restaurant and the terms under which the United States has agreed to conclude this particular Compliance Review of the Restaurant without further review or enforcement action.  This Agreement is not intended to certify or signify, however, that the Restaurant is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance.  This Agreement does not affect the Restaurant’s continuing responsibility and obligation to comply with all aspects of the ADA.  This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations. 

32. This Agreement does not constitute an admission by the Restaurant of non-compliance with any provision of the ADA.

33. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.

34. Failure by the United States to enforce the entire Agreement, with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.

35. This Agreement constitutes the entire agreement between the parties relating to the Compliance Review, 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 Agreement, shall be enforceable.