SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
JERRY AND CAROLYN DESPAIN, Rental, LLC
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ#  202-31-24

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America, and Jerry and Carolyn DeSpain Rental LLC. 
2. This matter is based upon a complaint filed with the United States Department of Justice (“Department”) alleging that the property at 2309 Frederica Street, Owensboro, Kentucky, owned by Jerry and Carolyn DeSpain Rental LLC (“Property Owners”), leased to a hearing aid center, in Owensboro, Kentucky, does not have an accessible entrance for individuals with mobility disabilities, preventing such individuals from the full use of its facilities and services in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189.
3. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation.  The parties have therefore voluntarily entered into this Agreement, agreeing as follows:

TITLE III COVERAGE AND FINDINGS

4. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the regulation implementing title III, 28 C.F.R. Part 36.
5. Property Owners, former owners of the hearing aid center, own the real property in which the hearing aid center currently operates.
6. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.  42 U.S.C. § 12182(a).
7. Property Owners own, lease (or lease to), or operate a place of public accommodation within the meaning of 42 U.S.C. § 12182(a).  Property Owners are a private entity within the meaning of 42 U.S.C. § 12181(6), currently renting to a hearing aid center which is considered a place of public accommodation because it affects commerce and is a service establishment within the meaning of 42 U.S.C. § 12181(7), 28 C.F.R. § 36.104.
8. 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 2309 Frederica Street in Owensboro, Kentucky.  The United States determined that 2309 Frederica Street, Owensboro, Kentucky has architectural barriers to access in its parking lot, exterior and interior routes of travel, entrances, and toilet rooms.

ACTIONS TO BE TAKEN BY PROPERTY OWNERS

9. Property Owners 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 in violation of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36, including by refusing to remove physical barriers to access to the extent readily achievable under the ADA, 42 U.S.C. § 12182(b)(2)(A)(iv), 28 C.F.R. § 36.304.
   
10. Property Owners shall remove the architectural barriers to access and make the modifications described in Attachment A of this Agreement by April 30, 2015. 

CIVIL PENALTY AND DAMAGES

11. Based upon the estimated expenses that will be incurred by Defendants in renovation and construction costs and other expenses, no civil penalty is requested by the United States against Property Owners for the ADA violations addressed in this Agreement that occurred before the effective date of this Agreement.  The Complainant has elected not to seek damages. 
12. A violation of the ADA that occurs after the effective date of this Agreement 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 Property Owners to the appropriate civil penalty. 

OTHER PROVISIONS

13. In consideration for the Agreement set forth above, the United States will not institute any civil action alleging discrimination under the ADA based on the allegations raised in DJ # 202-31-24, except as provided in paragraph 14 below.
14. The United States may review Property Owners’ (or its successor in interest’s) compliance with this Agreement or title III of the ADA at any time.  If the United States  is concerned that this Agreement or any portion of it has been violated, it will raise its concerns with Property Owners, and the parties will attempt to resolve the concerns in good faith.  The United States will give Property Owners 45 days from the date it notifies Property Owners of any breach of this Agreement to cure that breach.  If the United States is unable to reach a satisfactory   resolution of the issues raised within 45 days of the date that it provides notice to Property Owners, it may institute a civil action in the appropriate United States District Court to enforce this Agreement or enforce title III of the ADA against the party failing to comply with this Agreement.
15. Failure by the United States to enforce any of the provisions of this Agreement shall not be construed as a waiver of its right to do so with regard to other provisions of this Agreement.
16. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and Property Owners shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
17. This Agreement shall be binding on Property Owners, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that Property Owners seek to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, Property Owners shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement for the remaining term of this Agreement.
18. A signatory to this document in a representative capacity for Property Owners represents that he or she is authorized to bind Property Owners to this Agreement.
19. This Agreement constitutes the entire agreement between the United States and Property Owners on the matters raised herein, and no other prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, shall be enforceable.  This Agreement can only be modified or amended by mutual written agreement of the parties.
20. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of disability.  Nothing in this Agreement changes Property Owners’ obligation to otherwise comply with the requirements of the ADA.
21. A copy of this Agreement or any information contained in it may be made available to any person by the United States.

EFFECTIVE DATE/TERMINATION DATE

22. The effective date of this Agreement is the date of the last signature below.
23. The duration of this Agreement will be two years from the effective date.