SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND CALIFORNIA AQUATICS

USAO2013VO0165/DJ 202-12C-484

PARTIES

1. The parties to this Settlement Agreement are the United States of America and California Aquatics.
2. California Aquatics is a business, located at 1077 Pacific Coast Highway, #190, Seal Beach, California 90740, that rents out equipment for and offers lessons, instruction, and field trips in snorkeling, kayaking, and stand up paddling in Long Beach, California. It is a place of public accommodation covered by Title III of the ADA. 42 U.S.C. 12181 (7)(E); 28 C.F.R. § 36.104. California Aquatics is owned by Ken Williams.
3. The United States Department of Justice ("United States") is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12181 et seq.

BACKGROUND

4. This matter was initiated by a complaint filed with the United States against California Aquatics alleging violations of Title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. Part 36. Specifically, the Complainant alleged his daughter was denied membership to participate in kayaking and snorkeling field trips offered by California Aquatics because she has Type I diabetes.
5. As a person with Type I diabetes, Complainant's daughter is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
6. The Attorney General of the United States is authorized to investigate alleged violations of Title III of the ADA, and to bring a civil action in federal court if the United States is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b).
7. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, privileges, advantages, or accommodations. 42 U.S.C. §§ 12182(a) & 12182(b)(1)(A)(i); 28 C.F.R. §§ 36.201(a) and 36.202(a).

FINDINGS

8. As a result of its investigation, the United States determined California Aquatics denied the Complainant's daughter a full and equal opportunity to participate in, and benefit from, California Aquatics' goods, services, facilities, privileges, advantages, or accommodations within the meaning of 42 U.S.C. §§ 12182(a) and 12182(b)(1)(A)(i), and 28 C.F.R. §§ 36.201(a) and 36.202(a).
9. California Aquatics denies that it discriminated against the Complainant and his daughter on the basis of disability. California Aquatics has cooperated in the United States' investigation and has committed to fully comply with the ADA.
10. The United States and California Aquatics have determined that the complaint filed with the United States can be resolved without litigation, and have proposed and agreed to the terms of this Agreement.

REMEDIAL ACTION

11. California Aquatics agrees not to discriminate against any individual on the basis of disability, including those with Type I diabetes, in the full and equal enjoyment of its services, programs or activities, including by refusing or failing to make reasonable modifications in its goods, services, facilities, privileges or advantages, whenever necessary to avoid discrimination.
12. Prior to a student's enrollment into its membership program or prior to an individual participating in or benefiting from any of California Aquatics' goods, services, facilities privileges, or advantages, California Aquatics will not inquire whether an individual has diabetes or needs diabetes-related care or monitoring. California Aquatics will not require its customers to execute medical history forms in a manner that singles out, or tends to single out, individuals on the basis of disability.
13. If an individual voluntarily informs California Aquatics that he or she has insulin-dependent diabetes, California Aquatics agrees to evaluate, on a case by case basis, and make reasonable modifications for individuals with diabetes pursuant to Federal law. Modifications may include, but are not limited to, allowing a third party to participate in order to accommodate glucose monitoring and/or the administration of insulin at no additional cost and allowing the participant to carry and consume food while participating in or benefiting from any of California Aquatics' goods, services, facilities, privileges or advantages.
14. California Aquatics may request the individual or, if a minor, the individual's parent(s) or guardian(s), to provide California Aquatics with the following:
    1. All equipment, food, and substances that are necessary for managing the individual's diabetes;
    2. Complete maintenance and proper disposal of all materials and equipment; and
    3. An executed Release and Assumption of Risk form, which is required to be signed by every participant, whether or not the participant has a disability. California Aquatics may amend its current Release and Assumption of Risk form to specifically state that those with medical issues participate at their own risk.
15. California Aquatics will adopt, maintain, and enforce the policy attached hereto, and by referenced incorporated herein, as Attachment 1 to this Agreement on the prohibition of discrimination on the basis of disability. Within ten (10) days of the effective date of this Agreement, California Aquatics will print and maintain copies of the Policy in a central location, provide the Policy to any interested party requesting it, and will incorporate the Policy into its standard operating policies in accordance with applicable state and local law.
16. Within thirty (30) days of the effective date of this Agreement, California Aquatics will amend its information handouts, enrollment materials, registration forms, and websites (to include www.standuprentals.net; kayakrentals.net; and kayakmember.info) to state policies in conformity with this Agreement (e.g., the current disclaimer appearing on www.standuprentals.net will need to be amended from "All participants must know how to swim, be in good physical condition, with no health problems" to omit reference to "health problems." Each of these will include, but is not limited to, the following: "California Aquatics does not discriminate on the basis of disability." This portion of the announcement will appear in no less than 12 point type in a san-serif font and will be printed in such a way that there is a high level of contrast between the background and print colors.
17. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, California Aquatics will provide mandatory ADA training for all its employees and staff members who interact with the public, including training about diabetes as well as the ADA's non-discrimination mandate. This training obligation shall last for a period of not less than three (3) years. The basic training will include the nondiscrimination and reasonable modification requirements of title III of the ADA, a general overview of diabetes, recognition of common symptoms of hypoglycemia and hyperglycemia, and basic ways to treat and get help quickly.
18. California Aquatics will provide the training specified above in Paragraph 17 to new employees within thirty (30) days after the commencement of their employment.
19. Five (5) months after the effective date of this Agreement, and annually thereafter during the term of this Agreement, California Aquatics will provide a certification to the United States that the required trainings described in Paragraphs 17 and 18 were completed.
20. All training manuals or written materials dealing with California Aquatics' policies and practices used in the training or revised or created after the effective date of this Agreement shall be consistent with the provisions of this Agreement, and approved in advance by counsel for the United States.
21. California Aquatics will provide written reports to the United States regarding compliance with this Agreement. The first, second, and third reports shall be due six (6), twelve (12), eighteen (18), and thirty (30) months, respectively, from the entry of the Agreement. Each of the reports must state the number of individuals with diabetes who sought to participate in any program or activity, the particular modifications requested by such individual, the procedure followed to determine whether to allow such individual to participate in the program or activity, any reason participation in the program or activity was denied, and if the individual was allowed to participate, what modifications were agreed upon. California Aquatics will maintain records to document all statements in the report. California Aquatics shall also submit detailed information about any complaints to California Aquatics by individuals with diabetes or their parents or guardians, or actions taken by California Aquatics that involve any individual who has diabetes, including any decision to deny an individual's request for a modification or any request or other action by California Aquatics that contributes to an individual's removal or departure before the end of a session in which the individual was participating. California Aquatics agrees to keep participants' medical information confidential.
22. California Aquatics will maintain a record at its headquarters of all enrollment and participation inquiries on behalf of individuals with disabilities (within the meaning of the ADA, including insulin-dependent diabetes) and the disposition of such inquiries for a period of one (1) year from the date of inquiry.
23. California Aquatics will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Agreement or the ADA.

CIVIL PENALTY

24. Within forty-five (45) days of the entry of this Agreement, California Aquatics will send by Federal Express or certified mail, return receipt requested, a check in the amount of one thousand ($1,000.00) dollars made out to the United States Treasury. The check shall bear the case number in the memo line. The check shall be mailed to: Office of the United States Attorney, 300 North Los Angeles Street, Suite 7516, Los Angeles, California 90012, Attn: Marsha Yasuda.

ENFORCEMENT

25. All notices, reports, or other such documents required by this Agreement shall be sent to the Parties by fax and by delivery via Federal Express to the following addresses or to such other person as the parties may designate in writing in the future:

    For notices to the United States:
    Civil Rights Unit Chief, Civil Division
    United States Attorneys Office
    Central District of California
    300 North Los Angeles Street
    Suite 7516
    Los Angeles, California 90012
    (213) 894-2400 (telephone)
    (213) 894-7819 (facsimile)

    For notices to California Aquatics:
    Ken Williams
    Owner
    California Aquatics
    1077 Pacific Coast Highway, #190
    Seal Beach, California 90740
    (562) 434-0999 (telephone)

26. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that any requirement therein has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will specifically notify California Aquatics' owner, Ken Williams, in writing and it will attempt to resolve the issue or issues in good faith. The United States will give California Aquatics thirty (30) days from the date it notifies California Aquatics of any breach of this Agreement to cure that breach, prior to instituting any court action. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to California Aquatics, it may institute a civil action in federal district court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under the law. Failure by the United States to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
27. The Agreement shall become effective as of the date of the last signature below and shall remain in effect for three (3) years from that date.
28. This Agreement, and any of its attachments, 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 Agreement or attachments, shall be enforceable regarding the matters raised herein.
29. A copy of this Agreement may be made available by the United States or California Aquatics to any person upon request.
30. This Agreement fully and finally resolves any and all of the allegations of the Complainant and the United States in this case. This Agreement does not purport to remedy any other potential violations of the ADA not directly addressed in this Agreement. Nothing in this Agreement affects or relieves California Aquatics of its responsibility to comply with any other Federal, State, or local law or regulation. Except as set forth herein, nothing in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute any proceeding or action against California Aquatics for any past, present, or future violations of any statutes, rules, or regulations administered by the United States.
31. This Agreement shall be binding on California Aquatics, its agents and employees. In the event California Aquatics seeks to transfer or assign all or part of its interest, and the successor or assign intends on carrying on the same or similar business, as a condition of sale, California Aquatics shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
32. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
33. A signatory to this document in a representative capacity for California Aquatics represents that he or she is authorized to bind that party to this Agreement.

ATTACHMENT 1
POLICY ON PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

California Aquatics will not discriminate against any individual on the basis of disability, including individuals with diabetes, with regard to the full and equal enjoyment of its goods, services, facilities, privileges or advantages, including but not limited to participation in its recreational activities. California Aquatics will make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to avoid discrimination on the basis of disability, unless California Aquatics can demonstrate that making the modifications would fundamentally alter the nature of its goods, services, facilities, privileges or advantages. California Aquatics will make reasonable modifications for individuals with disabilities on a case by case basis, to permit them to participate in California Aquatics' goods, services, facilities, privileges or advantages.