UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

WHEREAS, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq. ("ADA"), 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);

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 compliance review of certain restaurants in New York City to determine whether those restaurants were operating in compliance with Title III of the ADA (the "Compliance Review");

WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of the Carmine's restaurants located at 2450 Broadway, New York, New York ("Carmine's Upper West Side") and 200 West 44th Street, New York, New York ("Carmine's Theater District") (collectively, the "Restaurants");

WHEREAS, the United States conducted site inspections of Carmine's Upper West Side on January 30, 2012, and Carmine's Theater District on November 29, 2012;

WHEREAS, Greystone Owner LLC ("Greystone") is the owner of the building that Carmine's Upper West Side leases and is a necessary party pursuant to Federal Rule of Civil Procedure 19 for purposes of equitable relief; Carmine's Broadway Feast Inc. operates Carmine's Upper West Side; Paramount Leasehold L.P. ("Paramount") owns the building that Carmine's Theater District leases and is a necessary party for purposes of Federal Rule of Civil Procedure 19 for the purposes of equitable relief; Little Fish Corp. operates Carmine's Theater District; and the Alicart Restaurant Group owns Carmine's Upper West Side and Carmine's Theater District (collectively, "Defendants");

WHEREAS, the United States commenced this action against Defendants to enforce certain provisions of the ADA under Title III, 42 U.S.C. §§ 12181 et seq.;

WHEREAS, the 1991 ADA Standards for Accessible Design ("1991 Standards"), 28 C.F.R. Pt. 36, Appendix D, were used to determine barriers to access that existed in the Restaurants;

WHEREAS, elements that are identified as not complying with the 1991 Standards shall be modified to comply with the 2010 Standards for Accessible Design ("2010 Standards"), 28 C.F.R. § 36.104, which consist of the 2004 ADA Accessibility Guidelines and the requirements contained in 28 C.F.R. Pt. 36, subpart D ("ADAAG");

WHEREAS, the complaint alleges that Defendants violated Title III of the ADA, 42 U.S.C. §§ 12181-89, and its implementing regulations, 28 C.F.R. Pt. 36, by, among other things, failing to make alterations in such a manner that, to the maximum extent feasible, made the Restaurants readily accessible to and usable by individuals with disabilities; failing to remove architectural barriers to access where it is readily achievable to do so; failing to use readily achievable alternatives to barrier removal where barrier removal is not readily achievable; and failing to make reasonable modifications to policies, practices, and procedures to make the goods and services offered at the Restaurants accessible to individuals with disabilities;

WHEREAS, Greystone agrees to provide access to Carmine's Upper West Side and the Greystone Building to facilitate such compliance as set forth herein;

WHEREAS, Paramount agrees to provide access to Carmine's Theater District to facilitate such compliance as set forth herein;

WHEREAS, Defendants have consented to the entry of the Consent Decree without trial or adjudication of any issues of fact or law; and

WHEREAS the United States and Defendants agree that settlement of these matters without further litigation is in the public interest and that the entry of this Consent Decree is the most appropriate means of resolving these matters;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. §§ 1331 and 1345.
2. Venue lies in the Southern District of New York pursuant to 28 U.S.C. § 1391(b) because the Restaurants are located within this District and the acts of discrimination alleged in the complaint occurred in this District.

   II. APPLICATION AND PARTIES BOUND

3. This Consent Decree shall be binding on Defendants, their agents, and their employees.  This Consent Decree shall also be binding on all of Defendants' successors, as well as any person or entity carrying on the same or similar use of the Restaurants.  Defendants must promptly notify, in writing, all successors, as well as any other persons or entities carrying on the same or similar use of the Restaurants, of the existence of this Consent Decree and its contents.

4. The Restaurants are places of public accommodations within the meaning of 42 U.S.C. § 12181(7), because the operation of the Restaurants affects commerce and the Restaurants are “restaurant[s], bar[s], or other establishment[s] serving food or drink.”  42 U.S.C. § 12181(7)(B); 28 C.F.R. § 36.104.
5. Defendants are governed by Title III of the ADA because they own and/or operate the Restaurants, which are places of public accommodation.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

   III. FACILITIES COVERED BY THIS CONSENT DECREE

6. This Consent Decree shall apply to Carmine's Upper West Side and Carmine's Theater District.  It shall apply to all public use and common areas within the Restaurants.  This includes, but is not limited to: public entrances, waiting areas, bar areas, dining areas, stairways, toilet rooms, corridors, and platform lifts.

7. This Consent Decree shall not absolve Defendants or any other person or entity from liability for any violation or potential violation of the ADA concerning any areas within the Restaurants not expressly included within the coverage of this Consent Decree.  Nothing in this Consent Decree shall preclude the United States from commencing or continuing any investigation with respect to any facility or establishment not expressly included within the coverage of this Consent Decree, and nothing in this Consent Decree shall preclude the United States from commencing a civil action against any person or entity with respect to any areas of the Restaurants not expressly included in this Consent Decree's coverage.

IV. GENERAL INJUNCTIVE RELIEF

8. Defendants, as well as their officers, agents, servants, employees, successors, and assigns, shall not discriminate against individuals with disabilities, and are permanently enjoined from violating Title III of the ADA with respect to the Restaurants.

V. BARRIERS TO ACCESS

9. During the course of its investigation of the Restaurants, the United States identified barriers to access within both Restaurants, which are described more fully below. Defendants shall remedy the barriers to access identified in this Consent Decree in the manner set forth below within the time periods described below.

VI. CARMINE'S UPPER WEST SIDE

A.        Entrances

10. The vestibule door pull side maneuvering clearance is less than 60 inches (at approximately 48 inches) perpendicular to the door for a forward approach.  See 1991 Standards §§ 4.1.3(8), 4.1.3(7)(a), 4.13.6 & Fig. 25(a).

Consent Decree Requirement:  No later than July 1, 2014, Defendants shall ensure that the vestibule door pull side maneuvering clearance is a minimum of 60 inches perpendicular to the door for a forward approach to pull open a manual door.  2010 Standards §§ 206.4.1, 206.5.1, 404.2.4.

11. The force required to open the vestibule door exceeds 5 pounds (at 20 pounds). See 1991 Standards §§ 4.1.3(8), 4.1.3(7)(a), 4.13.11(2)(b).

    Consent Decree Requirement:  No later than July 1, 2014, Defendants shall ensure that force for pushing or pulling open the vestibule door is 5 pounds maximum.  2010 Standards §§ 206.4.1, 206.5.1, 404.2.9.

B.        Alternate Entrance

12. The route from the entrance to the upper level of the restaurant is via a stairway. An alternate entrance to the upper level of the restaurant is provided via the Greystone Building on 91st Street.  Directional signage is provided within the bar, but no directional signage is provided at or near the entrance door indicating the route to the alternate entrance to the upper level of the restaurant. See 1991 Standards §§ 4.1.2(7)(c), 4.1.6(1)(h), 4.30.1, 4.30.2, 4.30.3, 4.30.5.
    

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install a directional sign at the entrance indicating the route to the alternate entrance via the Greystone Building on 91st Street.  2010 Standards §§ 216.6, 703.5.

13.    The Greystone Building alternate entrance and Carmine Upper West Side's alternate entrance via the Greystone Building on 91st Street are not identified with the International Symbol of Accessibility.  See 1991 Standards §§ 4.1.2(7)(c), 4.30.7.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install the International Symbol of Accessibility at the designated accessible entrances via the Greystone Building on 91st Street and from the lobby of the Greystone Building to the entrance to Carmine's Upper West Side.  2010 Standards §§ 216.6, 404, 703.7.2.1.   Defendants shall ensure that the alternate entrance via the Greystone Building on 91st Street is available to all patrons of Carmine's Upper West Side at any time Carmine's Upper West Side is open.  

14. Accessible door hardware is not provided on the exterior side of the Greystone Building entrance door and Carmine's Upper West Side's alternate entrance door.  See 1991 Standards §§ 4.1.3(8), 4.1.3(7)(a), 4.13.9.
    

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install door hardware that is operable with one hand and does not require tight grasping, tight pinching or twisting of the wrist on the exterior side of the Greystone Building entrance door and Carmine's Upper West Side's alternate entrance door.  2010 Standards §§ 206.4.1, 206.5.1, 404.2.7, 309.4.

15. The door threshold at Carmine's Upper West Side's alternate entrance door is ¾ inch high and is beveled at more than 1:2 (at approximately 1:1).  See 1991 Standards §§ 4.1.3(8), 4.1.3(7)(a), 4.1.6(3)(d)(ii).
    

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall ensure that the door threshold at Carmine's Upper West Side's alternate entrance door shall have a beveled edge on each side with a slope not steeper than 1:2.  2010 Standards §§ 206.4.1, 206.5.1, 404.2.5, 303.

C.        Lower Level Hostess Station

16. The take-out counter at the lower level hostess station exceeds 36 inches above the finish floor (at 41½ inches).  See 1991 Standards § 7.2(1).

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall lower a portion of the take-out counter surface so that is 36 inches long minimum and 36 inches high maximum above the finish floor.  2010 Standards §§ 227.1, 904.5.

17. The take-out counter at the lower level hostess station is mounted between 27 inches and 80 inches (at 40½ inches) above the finish floor to the leading edge and projects more than 4 inches (at 25 inches) into the circulation path.  See 1991 Standards §§ 4.1.3(2), 4.4.1.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall modify the take-out counter so that its leading edge is less than 27 inches above the finish floor.  2010 Standards §§ 204.1, 307.2.

D.        Lower Level Bar

18. The bar counter and drink rail exceed 34 inches (at 41-42 inches) above the finish floor, and a 60-inch minimum portion of the main bar counter is not provided.  See 1991 Standards 4.32.  A low, folding counter is provided in the bar area; however the counter is less than 30 inches wide (at 28 inches) and does not provide seating space for more than one individual. See 28 C.F.R. § 36.302(a); 1991 Standards §§ 5.2, 4.32, 4.2.4 & Fig. 45.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall provide accessible seating positions for at least 5% of the seating in the bar area that have sufficient clear floor space, knee and toe clearance and a dining surface 28 inches minimum and 34 inches maximum above the finish floor.  2010 Standards §§ 226.1, 902.2, 305, 306, 902.3.

E.        Lower Level Private Dining Room

19. The clear floor space at a typical dining table is less than 30 inches wide (at 19½ inches) between the table pedestal bases.  See 28 C.F.R. § 36.302(a); 1991 Standards § 4.32.2.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install a dining table with clear floor space a minimum of 30 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 28 inches minimum and 34 inches maximum for at least 5% of the seating.  28 C.F.R. § 36.302(a); 2010 Standards §§ 902.2, 305, 306, 902.3.

F.        Upper Level Dining Room

20. The banquette knee clearance at a typical dining table is less than 30 inches wide (at 28 inches) and less than 19 inches deep (at 13 inches), and the table pedestal base intrudes into the required clear floor space.  See 28 C.F.R. § 36.302(a); 1991 Standards §§ 5.1, 4.1.3(18), 4.32.2, 4.32.3, 4.2.4.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install a dining table with clear floor space a minimum of 30 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 28 inches minimum and 34 inches maximum for at least 5% of the banquette seating.  28 C.F.R. § 36.302(a); 2010 Standards §§ 226.1, 902.2, 305, 306, 902.3.

G.        Upper Level Restrooms¹

21.   The route to the restroom is less than 36 inches (at 30 inches) between the wall and the stored chairs. (Women's Restroom) See 28 C.F.R. § 36.302(a); 1991 Standards §§ 4.1.3(1), 4.1.3(11), 4.3.3.

    Consent Decree Requirement: No later than November 1, 2014, , Defendants shall ensure that the clear width of walking surfaces is 36 inches minimum. The clear width shall be permitted to be reduced to 32 inches minimum for a length of 24 inches maximum provided that the reduced width segments are separated by segments that are 48 inches long minimum and 36 inches wide minimum.  28 C.F.R. § 36.302(a); 2010 Standards §§ 206.2.2, 402.2, 403.5.

22. A sign identifying the restrooms in raised characters and Braille is not provided on the wall adjacent to the latch side of the door.  See 1991 Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.

    Consent Decree Requirement:  No later than November 1, 2014, Defendants shall install a sign in raised characters and Braille located alongside the door on the latch side at 48 inches minimum above the finish floor, measured from the baseline of the lowest tactile character, and 60 inches maximum above the finish floor, measured from the baseline of the highest tactile character, that identifies the men's and women's multi-user toilet rooms.   2010 Standards §§ 216.2, 703.1, 703.2, 703.3, 703.4, 703.5.

23. The clear opening width of the door is less than 32 inches (at 21½ inches). See 1991 Standards §§ 4.1.3(7)(b), 4.13.5 & Fig. 24(a).

    Consent Decree Requirement:  No later than November 1, 2014, Defendants shall ensure that the door openings to the upper level restrooms are a minimum of 32 inches wide.  2010 Standards §§ 206.5.2, 404.2.3.

24. The push side maneuvering clearance perpendicular to the door is less than 48 inches (at 37 inches) for a latch side approach. (Women's Restroom) See 1991 Standards §§ 4.1.3(7)(b), 4.13.6 & Fig. 25(a).

Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that a minimum of 48 inches is provided perpendicular to the door for a latch side approach to push open a manual door equipped with a closer in the women's upper level restrooms.  2010 Standards §§ 206.5.2, 404.2.4.

25. The pull side maneuvering clearance is less than 18 inches (at 3½ inches) on the latch side of the door for a forward approach. (Women's Restroom) See 1991 Standards §§ 4.1.3(7)(b), 4.13.6 & Fig. 25(a).

    Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that a minimum of 18 inches is provided on the latch side of the door for a forward approach to pull open a manual door in the women's upper level restrooms.  2010 Standards §§ 206.5.2,  404.2.4.

26. The change in level at the door threshold exceeds ¾ inch (at 2½ inches high) and is not beveled. See 1991 Standards §§ 4.1.3(7)(b), 4.13.8, 4.5.2.

    Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that the thresholds are ½ inch high maximum.  Changes in level of ¼ inch high maximum shall be permitted to be vertical.  Changes in level between ¼ inch high minimum and 1/2 inch high maximum shall be beveled with a slope not steeper than 1:2.  2010 Standards §§ 206.5.2, 404.2.5, 303.

27. The force required to open the toilet room door exceeds 5 pounds (at 10 pounds). See 1991 Standards §§ 4.1.3(7)(b), 4.13.11(2)(b).

    Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that the force required for pushing or pulling open the toilet room doors shall be 5 pounds maximum.  2010 Standards §§ 206.5.2, 404.2.9.

28. A 60 inch diameter or t-shaped turning space is not provided in the restroom (Men's Restroom). See 1991 Standards §§ 4.1.3(11), 4.22.3, 4.2.3 & Fig. 3.

    Consent Decree Requirement:  No later than November 1, 2014, Defendants shall ensure turning space complying with 2010 Standards § 304 shall be provided within the room.  The turning space shall be a space of 60 inches diameter minimum or a t-shaped space within a 60 inch square minimum with arms and base 36 inches wide minimum.  2010 Standards §§ 213.2, 603.2.2, 304.

29. A 60-inch wide accessible toilet stall is not provided. See 1991 Standards §§ 4.1.3(11), 4.22.4, 4.16, 4.17.
    

    Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that at least one 60-inch wide accessible toilet compartment with an accessible water closet and grab bars is provided.  2010 Standards §§ 213.3.1, 213.3.2, 604.1-604.7, 604.8.1, 609.

30. A urinal with a lowered rim is not provided. (Men's Restroom) See 1991 Standards §§ 4.1.3(11), 4.22.5, 4.18.

    Consent Decree Requirement: No later than November 1, 2014, Defendants shall ensure that at least one accessible urinal is provided.  2010 Standards §§ 213.3, 605.

31. An accessible lavatory is not provided. See 1991 Standards §§ 4.1.3(11), 4.22.6, 4.19.
    

    Consent Decree Requirement:  No later than November 1, 2014, Defendants shall ensure that at least one accessible lavatory shall be provided.  2010 Standards §§ 213.3.4, 606.  Within that time, Defendants shall also install a directional sign indicating the location of the nearest accessible restroom within the facility that includes the International Symbol of Accessibility.  Id. §§ 216.8, 703.2.1, 703.5.

VII. CARMINE'S THEATER DISTRICT

A.        Alternate Accessible Entrance

32. The bottom of the handrails on the ramp to enter the building does not extend at least 12 inches beyond bottom of the ramp segment.  See 1991 Standards §§ 4.1.2(1), 4.3.7,  4.8.1, 4.8.5, 4.8.5(2).
    

    Consent Decree Requirement:  Within 180 days of the date of entry of this Consent Degree, Defendants shall install ramp handrails that extend horizontally above the landing for 12 inches minimum beyond the bottom of ramp runs.  2010 Standards §§ 405.1, 405.8, 505.1, 505.10.1 & Figure 505.10.1.

B.        Coat Check

33. The counter at the coat check exceeds 36 inches above the finish floor (at 42 ¾ inches).  See 1991 Standards § 7.2(1).

    Consent Decree Requirement:  Within 180 days of the date of entry of this Consent Degree, Defendants shall install a portion of the coat check counter surface that is 36 inches long minimum and 36 inches high maximum above the finish floor for a parallel approach adjacent to the 36 inches minimum length counter.  2010 Standards §§ 227.1, 904.4.1.  A portion of the counter surface that is 30 inches long minimum and 36 inches high maximum shall be provided for a forward approach along with knee and toe space complying with 2010 Standards § 306 under the counter and clear floor or ground space complying with 2010 Standards § 305.  2010 Standards §§ 227.1, 904.4.2.

C.        Upper Level Restrooms¹

34. A sign identifying the restrooms in raised characters and Braille is not provided on the wall adjacent to the latch side of the door.  See 1991 Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
    

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall install signs in raised characters alongside the doors of the men's and women's upper level restrooms on the latch side at 48 inches minimum above the finish floor, measured from the baseline of the lowest tactile character, and 60 inches maximum above the finish floor, measured from the baseline of the highest tactile character.  2010 Standards §§ 216.2, 703.1 - 703.5.

35. The change in level at the door is ½ inch and is not beveled (men's restroom).  See 1991 Standards §§ 4.1.3(7)(b), 4.13.8, 4.5.2.

    Consent Decree Requirement:  Within 90 days of the date of entry of this Consent Degree, Defendants shall ensure that the threshold on the door of the men's upper level restrooms is beveled with a slope not steeper than 1:2.  2010 Standards §§ 206.5.2, 404.2.5, 303.

36. An accessible lavatory with clear floor space and knee and toe clearance is not provided.  See 1991 Standards §§ 4.1.3(11), 4.22.6, 4.19.

    Consent Decree Requirement:  No later than June 1, 2014, Defendants shall install accessible lavatories with clear floor space positioned for a forward approach and knee and toe clearance in the men's and women's upper level restrooms.  2010 Standards §§ 213.3.4, 606, 305, 306.

37. The mirror above the lavatory is mounted with the bottom edge of the reflecting surface more than 40 inches (at approximately 51 inches) above the finish floor.  See 1991 Standards §§ 4.1.3(11), 4.22.6, 4.19.6 & Fig. 31.
    

    Consent Decree Requirement:  No later than June 1, 2014, Defendants shall install mirrors located above lavatories with the bottom edge of the reflecting surface 40 inches maximum above the finish floor. 2010 Standards §§ 213.3.5, 603.3.

IX. CERTIFICATION

38. Within one year after the date of this Consent Decree, Defendants shall submit to the United States, a certification, under penalty of perjury, stating that they have complied with all obligations of this Consent Decree that are required to be satisfied or completed at that time.

X. RIGHT TO REVIEW COMPLIANCE

39.    Upon reasonable advance notice to Defendants (through undersigned counsel), Defendants shall permit the United States and any person acting on its behalf unrestricted access to the Restaurants to review compliance with the ADA and this Consent Decree.  If the United States believes that Defendants have violated this Consent Decree or are otherwise not in full compliance with the ADA, the United States will notify Defendants in writing and seek to resolve the matter amicably before applying to the Court for relief.

XI. CIVIL PENALTY

40. Pursuant to 42 U.S.C. § 12188(b)(2)(C)(i), Defendants shall within thirty (30) days of the date of entry of this Consent Decree pay to the Government a civil penalty in the amount of $10,000.

XII. VIOLATION OF THIS CONSENT DECREE

40. A violation of this Consent Decree shall be deemed a subsequent violation of Title III of the ADA. 42 U.S.C. § 12181 et seq.

XIII. MODIFICATION

41. There shall be no modification of this Consent Decree without the written consent of the United States and Defendants, and the approval of the Court.

XIV. ENTIRE AGREEMENT

42. This Consent Decree represents the entire agreement between the United States and Defendants.  No prior agreements, oral representations, or statements shall be considered part of this Consent Decree.

XV. RETENTION OF JURISDICTION

43.    This Court shall retain jurisdiction of this action for a period of three years from the date of the certification required by paragraph 63 of this Consent Decree to enforce or modify the provisions of this Consent Decree, to resolve any dispute that arises under this Consent Decree, and to entertain any application and issue any orders (including, without limitation, orders directing the modification of policies, practices, and procedures, and orders requiring the removal of barriers to access) as may be necessary or appropriate for the effectuation of its terms.  The parties shall discuss and attempt to negotiate a resolution of any dispute relating to the interpretation or enforcement of this Consent Decree before bringing the matter to the Court's attention for resolution.

XVI. EXECUTION OF CONSENT DECREE

44. This Consent Decree may be executed in counterparts, each of which shall be an original and shall constitute one and the same instrument.

XVII. COSTS AND ATTORNEY FEES

45. All parties shall bear their own costs and attorneys' fees in this action.

THE PARTIES HEREBY CONSENT to entry of the foregoing Consent Decree:

JUDGMENT IS HEREBY ENTERED in accordance with the foregoing Consent Decree.

Dated: New York, New York
11-8, 2013

Kimba M. Wood
UNITED STATES DISTRICT JUDGE