UNITED STATES OF AMERICA,

                                                Plaintiff,

v.                                                                                                Civil Action No.13-00433-WS-M

CHRIS YBARRA,
BARBARA YBARRA, and
BLALOCK, HARRIS & MARTIN, INC.
d/b/a COTTON’S RESTAURANT,

                                                Defendants. 

CONSENT DECREE

BACKGROUND

1. Plaintiff United States of America (“United States”) commenced this action against Chris Ybarra, Barbara Ybarra, and Blalock, Harris & Martin, Inc., doing business as Cotton’s Restaurant (collectively, “Defendants”), pursuant to Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and the U.S. Department of Justice’s implementing regulation, 28 C.F.R. Part 36, alleging, inter alia, that the Defendants violated Title III of the ADA by failing to remove architectural barriers where readily achievable to do so.
2. This matter was initiated by a complaint filed with the Department of Justice alleging that Cotton’s Restaurant, a restaurant and bar and gift shop located at 26009 Perdido Beach Boulevard, Orange Beach, Baldwin County, Alabama 36561, failed to remove architectural barriers to access affecting individuals with disabilities where such removal is readily achievable, including with respect to accessible parking, entrances, exits, toilet rooms, and dining tables.
3. The United States investigated the complaint under the authority granted by the ADA, 42 U.S.C. § 12188, and its implementing regulations, 28 C.F.R. § 36.502, and conducted site inspections and surveys covering all areas of Cotton’s Restaurant, including the parking spaces, entrances, corridors, ramps, toilet rooms, novelty or gift shop, bar and restaurant.  The United States determined that Defendants had, inter alia, failed to: provide the required number of accessible parking spaces; remove barriers to accessing the second floor of the restaurant, which include steep and uneven ramps and a minimum of five (5) steps outside the building to enter the facility and sixteen (16) additional stair risers to reach the dining and bar area; remove barriers in the toilet rooms; and provide accessible dining tables for persons who use wheelchairs.
4. Defendants cooperated in the investigation of this matter.  Following receipt of the results of the United States’ investigation, Defendants began and intend to undertake significant renovations of the existing restaurant facility in order to make the facilities and services accessible in compliance with the ADA.  Defendants deny liability for any violation of title III of the ADA with respect to Cotton’s Restaurant and/or any other applicable law regarding the rights of individuals with disabilities.  Defendants allege that the estimated cost of the renovations and additions related to the removal of barriers and to attain accessibility is approximately $240,000.  Defendant Blalock, Harris & Martin, Inc. alleges that it will have lost approximately $76,000 in lost sales during the temporary closure of Cotton’s Restaurant to effect the removal of barriers to accessibility.  Finally, Defendants Chris and Barbara Ybarra allege that because the previous owner would not participate in the renovations required by the ADA and implementing regulations, these Defendants allege they have purchased the real property on October 2, 2012, for the sum of $750,000 so that they could control the real property in order to effect the renovations required.  The United States position is that Defendants’ failure to remove the architectural barriers to access constitutes a pattern or practice of discrimination within the meaning of 42 U.S.C. § 12188(b)(1)(B)(i) and 28 C.F.R. § 36.503(a); and constitutes unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B)(ii) and 28 C.F.R. § 36.503(b).
5. The United States and Defendants agree that the entry of this Consent Decree, without further litigation at this time, is in the public interest.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B); 28 U.S.C.  1331 and 1345.  Venue is proper in this District pursuant to 28 U.S.C. § 1391, in that all claims alleged in the Complaint arose within this District.

PARTIES

7. Plaintiff is the United States of America.
8. Defendants Chris Ybarra and Barbara Ybarra own the real property in which Cotton’s Restaurant is operated.  Defendant Blalock, Harris & Martin, Inc., leases the real property from Defendants Chris Ybarra and Barbara Ybarra in which Cotton’s Restaurant is operated, and it is the owner and operator of the restaurant and bar and gift shop known as Cotton’s Restaurant. 

TITLE III COVERAGE AND REQUIREMENTS

9. Title III of the ADA bans discrimination against persons with disabilities by owners or operators of places of public accommodation, 42 U.S.C. § 12182(a), and establishes an ongoing requirement by such owners and operators to, among other things, remove architectural barriers to access where such removal is “readily achievable,” id. at § 12182(b)(2)(A)(iv), 28 C.F.R. § 36.304; and reasonably modify policies and practices so as to ensure “full and equal enjoyment” of their goods and services by individuals with disabilities, 42 U.S.C. §§ 12182(a) and 12182(b)(2)(A)(ii), 28 C.F.R. §§ 36.201 and 36.302.  Public accommodations must also furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, 42 U.S.C. § 12182(b)(2)(A)(iii), 28 C.F.R. § 36.303, and maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities, 28 C.F.R. § 36.211.
10. Cotton’s Restaurant is a place of public accommodation as defined in the ADA and its implementing regulations because it is a restaurant, bar, and gift shop and its operations affect commerce, 42 U.S.C. §§ 12181(7)(B), (E), 12182; 28 C.F.R. § 36.104.  Defendants are therefore a public accommodation as defined by 28 C.F.R. § 36.104.

TERMS OF AGREEMENT

11. The Defendants shall make all architectural modifications, including removing the barriers to access, in compliance with the ADA and its implementing regulations and the 2010 ADA Standards for Accessible Design (“Standards”), see 28 CFR § 36.104 (defining the “2010 Standards” as the requirements set forth in appendices B and D to 36 CFR part 1191 and the requirements contained in subpart D of 28 CFR part 36).  By November 15, 2013, Defendants shall remove the architectural barriers to access identified in this Consent Decree and shall effect the renovations and  changes shown in the plans and specifications attached hereto as Exhibit A.

ACCESSIBLE PARKING

12. The Defendants will reconstruct the existing parking lot to provide compliant accessible parking directly in front of the building which houses Cotton’s Restaurant.  Based on the number of total parking spaces at Cotton’s Restaurant property and the adjacent parking lot (presently owned by ReMax of Orange Beach) to which Cotton’s Restaurant’s management has privilege of use rights during Cotton’s Restaurant’s business hours, a minimum of three (3) accessible spaces, with appropriate access aisles, shall be constructed.  Proper maximum cross slopes and parallel slopes shall be maintained in all accessible parking spaces, aisles, ramps and walkways.  Proper marking and proper signage shall also be installed as approved by the United States and which appear in Exhibit A, p. 2, A0 Site Plan.  See Standards §§ 208 and 502.  

ACCESSIBLE TOILET ROOMS

13. Defendants shall construct a new accessible toilet room for women in accordance with the plans and specifications attached hereto as Exhibit A, p. 5, A1.2 Second Floor Plan, and shall provide proper signage.  See Standards §§ 213, 603, 604, and 606.
14. Defendants shall renovate the existing toilet rooms into an accessible toilet room for men in accordance with the plans and specifications attached hereto as Exhibit A, p. 5, A1.2 Second Floor Plan.  See Standards §§ 213, 603, 604, 605, and 606.
15. Defendants shall provide hallways not less than 48 inches wide on the approaches to the accessible toilet rooms, with doors with a clear opening width not less than 32 inches with sufficient maneuvering clearance in accordance with the plans and specifications attached hereto as Exhibit A, p. 5, A1.2 Second Floor Plan.  See Standards §§ 404.2.3, 404.2.4, and, 603.2. 

DINING TABLES

16. At least five (5) percent of all tables located in Cotton’s Restaurant shall be accessible to persons who use wheelchairs.   See Standards § 902; 28 C.F.R. § 36.201(a).

OTHER BARRIER REMOVAL

17. The Defendants shall install a platform lift, 36 inches minimum by 48 inches minimum, with a power assist door with standby power, from the front of the restaurant at which the accessible parking shall be located, up to each level, including the level of the building at which the restaurant and bar are located, all in accordance with the plans and specifications attached hereto as Exhibit A, p. 2, A0, Site Plan; p. 4, A1.1 First Floor Plan; and, p. 5, A1.2 Second Floor Plan.  See Standards §§ 206.4.1, 206.2.5, 206.7, 404.3, and 410. 
18. Defendants shall provide accessible ramps or walkways from the accessible parking to the entrance to the platform lift in accordance with the plans and specifications attached hereto as Exhibit A, p. 2, A0, Site Plan; p. 3, S1, Foundation Plan; p. 4, A1.1, First Floor Plan.  See Standards §§ 206.2.1, 402, 403, 404, 405, and 410. 

POLICIES

19. Defendants will not discriminate against any individual on the basis of disability.  The Defendants will make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford its services and facilities to individuals with disabilities, unless the modifications would fundamentally alter the nature of its services.  The Defendants will not exclude any individual with a disability from the full and equal enjoyment of its services and facilities.  The Defendants will not exclude any individual from the full and equal enjoyment of its services and facilities because of the individual’s association or relationship with a person with a disability.
20. The Defendants shall adopt the attached Nondiscrimination Policy Regarding Persons with Disabilities (Exhibit B).  A copy of the policy shall be posted in a visible location at or adjacent to the location of other employee or staff notices, such as worker’s compensation notices, health department notices, and similar laws, announcements or policies.  As set out in this policy, Defendants shall maintain in operable working condition the features and equipment that are required to be readily accessible to and usable by person with disabilities, including the elevator or chair-lift required above in paragraph 17, and accessible paths of travel through the restaurant to access the dining tables and bar area and toilet rooms, and throughout the facility.  28 C.F.R. 36.211.
21. The Defendants shall adopt the attached Service Dog policy ¹ (Exhibit C).  A copy of the policy shall be posted in a visible location at or adjacent to the location of other employee or staff notices, such as worker’s compensation notices, health department notices, and similar laws, announcements or policies.
22. Within thirty (30) days after the effective date of this Agreement, the Defendants will also develop or procure signs, not less than 6" x 12" with a font of 48, stating “This Restaurant Welcomes Customers With Disabilities Who Are Accompanied By Their Service Animals,” which will also include this message in Braille.  The signs will be installed next to the public entry doors of the restaurant on the latch side of the door.  The sign shall be mounted so that the bottom of the upper row of letters is at a height of 60 inches from the floor or ground.  Prior approval by the United States of the signs is required.

TRAINING OF OWNERS, MANAGERS AND STAFF

23. Within sixty (60) days following the entry of this Decree, the Defendants, managers and staff of Cotton’s Restaurant will receive suitable live, in-person training about the appropriate service and interaction of hospitality industry staff with persons with disabilities, including the policies and requirements set out in paragraphs 19-21 above.  The proposed training must be presented to the United States for review and written approval before the training is conducted.  As part of training, each Defendant, employee, manager, or owner shall review the Service Dog Policy and the Nondiscrimination Policy Regarding Persons with Disabilities, and shall sign each document where provided.  Copies of each such signed document shall be provided to the United States within sixty (60) days of the date of this Decree.  Newly hired managers and staff will receive written and audio/video (or web-based) training on the appropriate service and interaction of hospitality industry staff with persons with disabilities, including the policies and requirements set out in paragraphs 19-21 above, within ten (10) days of that person’s hiring, and will review and sign the Service Dog Policy and the Nondiscrimination Policy Regarding Persons with Disabilities.  Upon each anniversary date of this Decree for the duration of the Decree, the Defendants shall provide the United States signed copies of these policies from all new-hires or re-hires of persons hired or engaged by the Defendants working at Cotton’s Restaurant.
24. All expenses for training are the responsibility of the Defendants.

REPORTING AND NOTICE

25. Annually on the anniversary of the Effective Date of this Consent Decree, Defendants will report to the United States its progress in implementing this Consent Decree, including on its training obligations, and will provide documentation of the architectural work completed or in progress, including plans and photographs.
26. Defendants shall publicize the availability of accessible parking, accessible restrooms, accessible routes to the dining room from the accessible parking, elevator or chair lift availability, wheelchair seating, companion seating, and service dog policy, and the renovations and modifications effected to make the restaurant accessible, by appropriate notice on the Defendants' website(s), and in any press release, any promotional literature (whether electronic or physical), and in any interview to or by the media. Photographs of the renovations and accessible features shall be posted on the website, along with the policies attached hereto as Exhibits B and C.

CIVIL PENALTY AND DAMAGES

27. Based upon the level of cooperation of Defendants in response to the investigation by the United States, and based upon the estimated expenses alleged to have been incurred by Defendants in renovation and construction costs and other expenses, no civil penalty is requested by the United States against the Defendants for the ADA violations addressed in this Consent Decree that occurred before the effective date of this Consent Decree.  The Complainant has elected not to seek damages. 
28. A violation of the ADA that occurs after the effective date of this Consent Decree shall be deemed a subsequent violation of the ADA under 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), and subject Defendants to the appropriate civil penalty. 

ENFORCEMENT AND IMPLEMENTATION

29. In consideration of this Consent Decree, the United States will refrain from undertaking further action relating to this investigation, except as provided in paragraph 30 below. The United States may review compliance with this Consent Decree or Title III of the ADA at any time.  If the United States believes that this Consent Decree or any portion thereof has been violated, it will raise its concerns with Defendants in writing and the parties will attempt to resolve the concerns in good faith. In the case of a perceived breach, the United States will give Defendants thirty days from the date it notifies Defendants in writing of any breach of this Consent Decree to cure that breach before instituting an enforcement action. 
30. Upon reasonable written advance notice to Defendants (through counsel), the United States and any persons acting on its behalf (including consultants or investigators) shall be permitted reasonable access to Cotton’s Restaurant to review compliance with this Consent Decree.
31. Failure by the United States to enforce this entire Consent Decree or any of its provisions shall not be construed as a waiver of its right to do so with regard to other provisions of this Consent Decree.
32. This Consent Decree shall be binding on Defendants, including all agents, successors in interest, and assigns thereof.  In the event that any of the Defendants seeks to sell, transfer, or assign all or part of its interest during the term of this Consent Decree, as a condition of sale, transfer, or assignment, the Defendant shall obtain the written accession of the successor or assignee to any obligation remaining under this Consent Decree for the remaining term of the Consent Decree. 
33. A signatory to this Consent Decree in a representative capacity for either party represents that he or she is authorized to bind that party to this Consent Decree.
34. This Consent Decree constitutes the entire agreement between the United States and Defendants on the matters raised herein and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Consent Decree, shall be enforceable.
35. This Consent Decree is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Consent Decree. Nothing in this Consent Decree changes Defendants’ obligation to otherwise comply with the requirements of the ADA.
36. The Effective Date of this Consent Decree means the date that this Consent Decree is signed by a Judge of this United States District Court.
37. The duration of this Consent Decree will be three years from the effective date.
    SO ORDERED this 17 day of September, 2013. 

       The parties hereby expressly consent to the entry of the foregoing Consent Decree.