I. THE PARTIES
1. The parties to this Settlement Agreement are the United States of America and Best Breakfast, Inc. d/b/a Blue Plate Café and Michael Richmond, president of Best Breakfast, Inc. The parties hereby agree as follows:
2. This Agreement is reached under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§12181 et seq. and its implementing regulations (including the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A (“Standards”)).
II. FACTS3. Best Breakfast, Inc. operates two Blue Plate Cafe restaurants located at 5469 Poplar Avenue, Memphis, Tennessee, and at the corner of Stage Road and Kirby Whitten Blvd., Bartlett, Tennessee (“Blue Plate Cafe”). Michael Richmond is the President and principal stockholder of Best Breakfast, Inc.
4. The Blue Plate Cafe is a privately owned restaurant, it is also a place of public accommodation within the meaning of 42 U.S.C. § 12181(7)(B), (E) and 28 C.F.R. § 36.104. Best Breakfast, Inc. is likewise a public accommodation within the meaning of 42 U.S.C. §12181(7)(B) and 28 C.F.R. § 36.104, as Best Breakfast Inc. owns, leases, leases to, or manages the Blue Plate Café. Michael Richmond is likewise a public accommodation within the meaning of 42 U.S.C. §12181(7)(B) and 28 C.F.R. § 36.104, as Michael Richmond owns, leases, leases to, or manages the Blue Plate Café.
5. The United States conducted an investigation of a complaint alleging that Michael Richmond and Best Breakfast, Inc. declined to permit a service animal accompanying an individual with a disability to enter the dining room of the Blue Plate Café located at 5469 poplar Avenue, Memphis, Tennessee. The United States found in its investigation that on the morning of June 19, 2004, the complainant and his family entered the Blue Plate Café for the purpose of eating breakfast. The complainant, Justin McBride, has cerebral palsy and uses a wheelchair to be ambulatory. In addition the complainant has a service animal to enable him to have indiependent access to the activities of daily living. When it came time for the complainant’s family to be seated in the dining room of the Blue Plate Café, the family was informed by a hostess that the service animal could not accompany the complainant into the dining room. Upon further inquiry the family was advised by Michael Richmond that the complainant’s service animal could not accompany the complainant into the dining room.
6. As a result of its investigation the United States has determined that the complainant was denied equal access to the goods and services of the Blue Plate Cafe within the meaning of 42 U.S.C. § 12182(a); 28 C.F.R. § 36.302 due to the failure of Best Breakfast, Inc. and Michael Richmond to permit the complainant’s service animal to accompany the complainant into the dining room of the restaurant.
7. The parties have determined their respective interests can be met without engaging in protracted litigation, and this Agreement is entered into in order to provide access to persons with disabilities and avoid the costs as well as the burdens of litigation.
III. ACTIONS TO BE TAKEN BY THE BEST BREAKFAST, INC. AND MICHAEL RICHMOND8. Consistent with the law, Best Breakfast Inc. and Michael Richmond 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 the Blue Plate Cafe by excluding or providing unequal treatment to persons with disabilities who use service animals.
9. Best Breakfast, Inc. shall adopt, maintain, and enforce the policy attached hereto and by reference incorporated herein as Attachment 1 to this Settlement Agreement on the treatment of customers using service animals. Within 15 days of the execution of this agreement Best Breakfast Inc. and Michael Richmond shall provide a copy of the policy set forth in Attachment 1 to all employees of Best Breakfast Inc. and shall post a copy of the policy in the area of the restaurant used to provide employees standing information on company policy.
10. Within 60 days of the entry of this Consent Order Best Breakfast Inc. and Michael Richmond shall also develop a sign, not less than 6" x 9" with a minimum font of 24, stating “The Blue Plate Café welcomes customers with disabilities accompanied by their service animals,” which will also include this message in Braille. Said sign shall be installed on the wall adjacent to the pull side of the entry door of both restaurants at a height of 60 inches from the finished floor to the centerline of the sign.
11. Upon execution of the this Settlement Agreement Best Breakfast Inc. and Michael Richmond shall pay damages to Justin McBride in the amount of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500.00). This payment shall be delivered to Assistant U.S. Attorney Gary Vanasek, United States Attorney’s Office, Suite 800, 167 N. Main Street, Memphis, TN 38103 for further delivery to Mr. McBride. It is the intention of this agreement that the liability for damages shall be a joint and several liability of Best Breakfast, Inc. and Michael Richmond.
12. Upon execution of this Settlement Agreement Best Breakfast, Inc. and Michael Richmond shall pay a penalty to the United States of America in the amount of ONE THOUSAND DOLLARS ($1,000.00). This payment shall be delivered to Assistant U.S. Attorney Gary Vanasek, United States Attorney’s Office, Suite 800, 167 N. Main Street, Memphis, TN 38103. It is the intention of this agreement that the liability for this penalty shall be a joint and several liability of Best Breakfast, Inc. and Michael Richmond.
IV. ENFORCEMENT AND MISCELLANEOUS PROVISIONS13. In consideration for this Settlement Agreement, the United States agrees to refrain from filing any civil lawsuit based upon the facts alleged herein, provided, however, that the United States reserves the right to file a civil lawsuit to enforce this agreement in accordance with the provisions of paragraph 14 of this agreement.
14. If Best Breakfast, Inc. and/or Michael Richmond fail to take any actions described in Section III of this Agreement pursuant to the terms and time periods specified herein, without obtaining sufficient advance written approval from the United States, such failure shall constitute a subsequent violation, within the meaning of 42 U.S.C. § 12188(b)(2)(C)(ii) and 28 C.F.R. § 36.504(a)(3)(ii), and Best Breakfast, Inc. and/or Michael Richmond shall correct this noncompliance within 30 days of being notified of the noncompliance and shall be liable to the United States of America for a civil penalty of no less than $2,000 for each required action not taken in addition to any appropriate compensatory damages caused by the failure of Best Breakfast, Inc. and/or Michael Richmond to comply. The parties to this agreement hereby stipulate that the United States District Court for the Western District of Tennessee located in Memphis, Tennessee shall have both jurisdiction and venue over any dispute between the parties of this agreement.
15. Failure by the United States Department of Justice to enforce this entire Agreement, or any provision thereof, with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement.
16. The United States Attorney's Office does not intend any aspect of this Agreement to evidence a legal interpretation of the ADA or any state accessibility law.
17. This Agreement is a public document. A copy of this document, or any information contained therein, may be made available to any person. The effective date of this Agreement is the date of the last signature below.
18. This Agreement shall be binding on Best Breakfast, Inc. and Michael Richmond. This Agreement shall also be binding on any successors in interest to Best Breakfast, Inc. and Michael Richmond for two years from the effective date of this Agreement, and Best Breakfast, Inc. and Michael Richmond have a duty to so notify all such successors in interest.
19. This Agreement constitutes the entire agreement between the United States of America and Best Breakfast, Inc. and Michael Richmond 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, not contained in this written Settlement Agreement, shall be enforceable.
20. This Settlement Agreement is limited to the facts set forth in it. This Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law. This Agreement does not purport to list all violations of the Americans with Disabilities Act at the Blue Plate Café or by Best Breakfast, Inc. and/or Michael Richmond.
21. Signors of this Settlement Agreement on behalf of the parties represent that they are authorized to bind the above-captioned parties to this Settlement Agreement.
22. Notices of any kind required or contemplated under this Agreement shall be made by mailing the same via United States Postal Service, first class certified mail, return receipt requested, and notice shall be deemed given on the date of receipt of the same. Notices to the United States Attorney's Office shall be mailed to the address in the signature block below of the undersigned Assistant U.S. Attorney. Notices to the Best Breakfast, Inc. and/or Michael Richmond shall be mailed to 5469 Poplar Avenue, Memphis, Tennessee, 38119.
23. Deadlines listed in this Agreement which fall on weekends or holidays will be extended to the next business day.
For the United States of America:
TERRELL L. HARRIS
United States AttorneyBest Breakfast Inc.
10/25/04
Gary A. Vanasek
Assistant U.S. Attorney
Suite 800, 167 N. Main Street
Memphis, TN 38103
Michael Richmond, President
Best Breakfast, Inc.
5469 Poplar Avenue
Memphis, TN 38119
Michael Richmond, President
Best Breakfast Inc. Corporate Policy
Statement of CommitmentBest Breakfast inc. 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 customer using a service animal that is individually trained to assist a person with a disability into our restaurants.
Employee Requirements With Regard to Service AnimalsMost 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 normally used by customers.
2. Do not ask a customer 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 identifying it as service animal; or
B. The animal has an identification card indentifying it as a service animal; or
C. The person who has the animal tells you that the animal is a service animal and not a pet.4. Do not require that the customer with a service animal sit in a separate or isolated area away from other customers.
5. Direct any questions or clarifications concerning this policy to appropriate management personnel.
6. Conduct any discussions with a customer in such a manner so as to avoid any possible embarrassment to the customer.
7. Use good judgment in determining whether there is any need to question a 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. Although dogs most often function as service animals, other animals are recognized as being within the definition of a service animal. Service animals come in many 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, but rather, a member of a team responding to the needs and commands of its owner. 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 r carrying and picking up things for persons with mobility impairments.
-Assisting persons with mobility impairments with balance.
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February 24, 2005