Department of Justice seal

DJ#  202-31-24


  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:

  5. 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.
  6. Property Owners, former owners of the hearing aid center, own the real property in which the hearing aid center currently operates.
  7. 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).
  8. 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.
  9. 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.

  11. 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.
  12. Property Owners shall remove the architectural barriers to access and make the modifications described in Attachment A of this Agreement by April 30, 2015. 

  14. 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. 
  15. 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. 

  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. A copy of this Agreement or any information contained in it may be made available to any person by the United States.

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


/s/ E. Louis Johnson
Johnson & Presser
418 W. 3rd St.
Owensboro, KY 42301
(270) 926-1717
(270) 926-1722 - fax


Acting Assistant Attorney General
Deputy Assistant Attorney General
Civil Rights Division


/s/ Susana Lorenzo-Giguere
SHEILA M. FORAN, Special Legal Counsel
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. – NYA
Washington, D.C. 20530
(202) 305-7615



  1. Parking Lot
  2. The parking lot, with a total of 8 parking spaces, is inaccessible because it has no designated accessible spaces provided, and no access aisles.  Seven of eight parking spaces are not sufficiently level to be accessible. At least one van designated accessible parking space and access aisle is required.

    Provide, on the shortest accessible route to the accessible entrance(s), at least one van accessible parking space designated as reserved for people with disabilities. The van accessible space must be at least 132 inches wide and served by access aisles at least 60 inches wide, or at least 96 inches wide and served by access aisles at least 96 inches wide.  The access aisle shall extend the full length of the van accessible space it serves and must be marked so as to discourage parking in it.  Provide a vertical sign with the International Symbol of Accessibility, mounted at least 60 inches high to the bottom of the sign.  Provide an additional “van accessible” sign mounted at least 60 inches high to the bottom of the sign.  All spaces and access aisles for persons with disabilities shall contain no changes in level, with slopes and cross-slopes not exceeding 2.08%, and their surfaces shall be firm, stable, and slip-resistant.  Standards §§ 208, 302, 502, 703.7.2.1.

  3. Exterior Route from Parking Lot to Entrance
  4. Three exterior non-compliant entrances are provided. The route from the parking lot to both the front and rear entrances is inaccessible because it requires traversing stairs.

    West (Front) Path of Travel / Exterior Entrance:

    The overall rise from the sidewalk to the porch is approximately 51 inches. The concrete walkway between the sidewalk and the porch slopes up. The overall rise from the driveway to the porch, measured at the southwest corner of the building is approximately 43.5 inches. The first two steps, at the walkway from the sidewalk, are 6” high each. The 3rd, 4th and 5th steps, at the west side of the porch, are each 8.5” high and the 6th step is 9” high. The south side of the porch has 4 steps. The 1st and 2nd steps are 8.5” high. The 3rd and 4th steps are 9” high.

    North East  and South East (Rear) Exterior Entrances:

    The northeast door, currently used as the building’s main entrance for drive up clients, is accessed only by a short, very steep ramp which is 36” wide. This exterior door leads to three interior steps up to the floor level. The southeast door’s threshold slopes up from 2” high at its outside edge to 5” high at the door. The stoop at the southeast door has 6 steps and is 40” high. It is 48” from front to back and 42” wide. The southeast door width is 36” wide and the threshold is 3.5” high. 

    One accessible entrance door on an accessible route is required.

    Provide an accessible route to each area, feature, or element described such that level changes in excess of ½ inch are ramped (or otherwise made accessible); level changes with exposed edges of up to 90 degrees are not more than ¼ inch high; and level changes between ½ inch and ¼ inch high are beveled with a slope no greater than 50% (or up to ¼ inch vertical and at least ¼ inch beveled).  Standards §§ 206, 303, 402.

  5. Exterior Door Hardware at Front and Back Entrances
  6. The single-hinged door has non-compliant knob hardware.

    Provide a door with hardware, mounted between 34 and 48 inches high, that is operable with one hand and does not require tight grasping, pinching, or twisting of the wrist and requires no more than 5 pounds of force to operate.  Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs.  Standards §§ 206.4, 206.5, 309.4, 404.2.7.        

  7. Interior Door Hardware
  8. Interior doors are fitted with non-compliant knob hardware.

    Provide a door with hardware, mounted between 34 and 48 inches high, that is operable with one hand and does not require tight grasping, pinching, or twisting of the wrist and requires no more than 5 pounds of force to operate.  Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs.  Standards §§ 206.4, 206.5, 309.4, 404.2.7.        

  9. Toilet Rooms
  10. Both the men’s and women’s toilet room have no accessible features. 

    Provide at least one each, accessible men’s and women’s toilet rooms.  Alternately, provide one accessible family toilet room such that all of the room’s elements, including signage, door, door hardware, clear floor space, toilet, stall size and arrangement (if any), urinal (if provided), grab bars, lavatory, mirror, controls, and dispensers, comply with the Standards.  Standards §§ 204, 205, 206, 213, 216, 225, 301.1, 401.1, 601.1, 703, 811.

1 All citations are to the Title III regulation, 28 C.F.R. pt. 36, and the 2010 Standards.  See 28 CFR § 36.104 (title III) (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).