SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND GREAT VISTAS, LLC
UNDER THE AMERICANS WITH DISABILITIES ACT
IN DEPARTMENT OF JUSTICE MATTER NUMBER 202-90-6

 

Background

  1. This matter was initiated by a complaint filed under Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. pt. 36, with the United States Department of Justice against the Bluebeard's Castle, a resort property in St. Thomas, U.S. Virgin Islands. Bluebeard's Castle resort contains three restaurants, which were the subject of the complaint. These restaurants include: "Room with a View," "Banana Tree Grille," and "The Cabana Bar" (hereinafter referred to as "the restaurants at Bluebeard's Castle"). The complaint was received by the Department of Justice, Disability Rights Section, and investigated by the United States Attorney's Office for the District of the Virgin Islands, pursuant to the authority granted by Title III of the ADA, 42 U.S.C. §12188(b)(1)(A)(i); 28 C.F.R. § 36.502(a).
  2. Great Vistas, LLC, is a limited liability corporation incorporated under the laws of the U.S. Virgin Islands. Great Vistas, LLC has owned and operated all of the common areas of Bluebeard's Castle since 2008 and is also the landlord for the restaurants at Bluebeard's Castle. Bluebeard's Castle resort is a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(A) and (B), and its implementing regulation at 28 C.F.R. § 36.104.
  3. The parties to this Settlement Agreement ("Agreement") are the United States of America ("the United States") and Great Vistas, LLC.
  4. The Attorney General is authorized to enforce Title III of the ADA to ensure that architectural barriers to accessibility are removed when such removal is readily achievable. 42 U.S.C. 12 §182(b)(2) (A) (iv); 28 C.F.R. §36.304. The Attorney General is also authorized to enforce Title III to ensure that altered facilities are readily accessible to, and usable by, individuals with disabilities to the maximum extent feasible. 42 U.S.C. §12183; 28 C.F.R. §§ 36.40 and 36.402. In cases where alterations are undertaken to an area of primary function, twenty percent of the cost of the alteration must go to ensuring that the path of travel to the altered area is also accessible. 28 C.F.R. §36.403. The Attorney General may commence a civil action to enforce Title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. §12188(b)(1)(B); 28 C.F.R. § 36.503.
  5. Bluebeard's Castle resort is a hotel resort property that contains three restaurants and is perched on a hilltop overlooking Charlotte Amalie harbor in St. Thomas. The restaurants are on three different levels and are currently connected to each other by stair access. The lobby and check-in area is on an upper level that is higher than the three restaurant levels. The restaurants at Bluebeard's Castle were constructed before the effective date of Title III's provisions for new construction. The lobby and check-in area and the upper level were renovated after the effective date of Title III's provisions.
  6. An investigation conducted by the United States, beginning in January 2010, found numerous alleged architectural barriers to access in the restaurants at Bluebeard's Castle. The United States' investigation also revealed that since April 2009 the Bluebeard's Castle resort had planned to renovate the lobby and check in area for the resort. A hotel lobby is an area of primary function. Great Vistas LLC represents that it has ensured that the alteration was undertaken in full compliance with the ADA Standards for Accessible Design (1991 Standards), originally published on July 26, 1991, 28 C.F.R. pt. 36, App. A (2010) [1] , and, in fulfillment of its path of travel obligations, and has created restrooms that comply with the 1991 Standards as well as ensuring that the interior and exterior routes to the lobby are accessible.
  7. Great Vistas, LLC, is committed to ensuring that individuals with disabilities receive the full and equal enjoyment of the goods and services of the restaurants at Bluebeard's Castle to the extent, as required by 42 U.S.C. § 12182; 28 C.F.R. § 36.201(a). To demonstrate that commitment, in accordance with the details provided in paragraph 9, below, Great Vistas, LLC, agrees to: 1) remove all architectural barriers identified by the United States at the restaurants at Bluebeard's Castle; 2) ensure that its alteration of the lobby and check in area of Bluebeard's Castle complies fully with the 1991 Standards; and 3) modify the path of travel leading to the alteration, including providing accessible restrooms.
  8. Accordingly, to avoid the burdens and expenses of litigation, the United States and Great Vistas, LLC enter into this Agreement to resolve Department of Justice Matter Number 202-90-6. In consideration of, and consistent with, the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter against Great Vistas, LLC regarding all matters contained within this Agreement, except as otherwise provided in the sections entitled "Implementation" and "Enforcement."
  9. Great Vistas LLC agrees to make all the modifications enumerated in this Agreement by December 31, 2014 in three Phases entitled I, II, and III each of which shall coincide with its fiscal year, which is the calendar year All citations are to the Title III regulation, 28 C.F.R. pt. 36, and the 1991 Standards (except where explicitly clarified otherwise).
    1. PHASE I: The following modifications will be made during calendar year 2012:
      1. Great Vistas LLC will create an accessible parking space 12'9" wide, 20' long with a 5' access aisle and signage at the top level main building for access to Room with a View and the Cabana Bar. 1991 Standards § §4.1.2(5) and 4.6. Great Vistas LLC will also provide a direct accessible route through the main building and new accessible restrooms on this top level. 1991 Standards §§ 4.1.3(1), 4.1.3(7), 4.1.3(11), 4.3, 4.13, 4.22, 4.16, 4.17, 4.18, 4.19 and 4.27..
      2. Provide an accessible route from the top level main building to Room with A View restaurant. 1991 Standards §§ 4.1.2(2) and 4.3. Great Vistas LLC will provide a wheel chair lift from the top level main building lobby to the Room with a View courtyard level, the general type and specifications for which are set forth in Exhibit A to this Agreement. 1991 Standards §§ 4.1.2(2), 4.3.8 and 4.11. Great Vistas LLC will also provide accessible ramps with handrails from the Room with a View courtyard level into the restaurant Room with a View. 1991 Standards §§ 4.1.2(2), 4.3.7 and 4.8. Great Vistas LLC will also ensure that the ashtray protrudes no more than 4 inches into the circulation path. 1991 Standards §§ 4.1.2(3) and 4.4.1.
      3. Provide an accessible booth with knee clearance of 19 inches deep in the Cabana Bar. 1991 Standards §§ 5.1, 4.1.3(18), 4.32.3 and Fig. 45. Great Vistas LLC will provide such a booth.
      4. Great Vistas LLC will ensure that the Main Building=s doors have a maneuvering clearance of at least 18 inches on the latch side of the door. 1991 Standards §§ 4.1.3(7), 4.13.6, Fig. 25(a). Great Vistas LLC will reverse the door swing on two doors to accomplish this compliance.
      5. Great Vistas LLC will ensure that exterior openings and walkways in the Main Building are accessible and are the minimum width required by law. Great Vistas LLC will ensure that double leaf doors with single leaf widths of less than 32 inches remain open during operating hours. 1991 Standards §4.1.3(7) (b), 4.13.4 and 4.13.5. [Great Vistas LLC will post appropriate signage regarding such doorways remaining open]
      6. Great Vistas LLC will ensure that the Main Building has an accessible drinking fountain. 1991 Standards §§4.1.3(10) (a) and 4.15.
      7. Great Vistas LLC will ensure that the employee break room counter and sink in the Main Building is accessible. 1991 Standards §§ 4.1.3(18), 4.32.4 and 4.24.2.
      8. Great Vistas LLC will ensure that the Main Building toilet rooms coat hooks are accessible. 1991 Standards §§ 4.1.3(12) (a), 4.25.3, 4.2.6 and Fig. 6.
      9. Great Vistas LLC will ensure that an 18-inch minimum clear space is provided above toilet room grab bars. 1991 Standards §§ 4.1.3(11), 4.22.4, 4.17.6, 4.26.2 and Fig. 39.
    2. PHASE II: The following modifications will be made during calendar year 2013:
      1. Provide an accessible route from the Room with a View courtyard level to the Cabana Bar. 1991 Standards §§ 4.1.2(2) and 4.3. Great Vistas LLC will provide a wheel chairlift from the Room with a View courtyard level to the Cabana Bar level of the same type and specifications as are set forth in Exhibit A. 1991 Standards §§ 4.1.2(2), 4.3.8 and 4.11.
      2. Provide an accessible route from the walkway to the terrace level on the east side of the top level Main Building. Great Vistas LLC will also provide an accessible ramp with handrails in place of the short ramp on the east side of the main building on the lobby level if such ramp continues to be in use. 1991 Standards §§ 4.1.2(2), 4.3.7 and 4.8.
    3. PHASE III: The following modifications will be made during calendar year 2013:
      1. Provide an accessible route to the Banana Tree Grille restaurant. Great Vistas LLC will provide a wheel chairlift from the Cabana Bar to the level of the pool deck of the same type and specifications as are set forth in Exhibit A; Great Vistas LLC will provide an accessible ramp with handrails from the pool level to the lower level of Banana Tree Grille restaurant to traverse 4 risers. 1991 Standards §§ 4.1.2(2), 4.3.7 and 4.8.
      2. Provide an accessible restroom for patrons of Banana Tree Grille the pool deck area. As is indicated above providing access to this level by means of the three wheel chair lifts as described above will, at the end of this phase, provide access to the accessible restrooms in the main building at the upper level. 1991 Standards §§ 4.1.3(7), 4.1.3(11) 4.13, 4.22, 4.16, 4.17, 4.18, 4.19 and 4.27.

    COMPLETION, CERTIFICATION AND NOTICE

  1. Great Vistas LLC agrees that, through the term of this Agreement, all remedial work (including all remedial work performed prior to execution of this Agreement) will be done in compliance with the applicable ADA Standards as established herein. Any modifications performed by Great Vistas LLC that do not strictly comply with the ADA Standards must be redone within ninety (90) days of the United States' reasonable objections.
  2. . No later than 180 days prior to the expiration of this Agreement, Great Vistas LLC shall certify to the United States, in writing, that it has fulfilled all of its obligations under this Settlement Agreement. The certification shall set out each of the obligations and shall describe the steps Great Vistas LLC has taken to fulfill these obligations. Great Vistas LLC shall provide the United States with written documentation evidencing its completion of all corrective actions in sufficient detail for the United States to confirm independently that all work has been done in conformance with the parties' agreement. Such evidence may include, but is not limited to, color photographs, purchase orders, permits, and/or architectural drawings, if necessary. Great Vistas LLC will allow representatives of the United States access to the restaurants at Bluebeard=s Castle so that the United States may monitor compliance with the certification and this Agreement.
  3. In the event that Great Vistas LLC is required to obtain, in order to achieve compliance with this agreement, any building, mechanical, electrical, plumbing or other permit or approval, Great Vistas LLC shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Great Vistas LLC for obtaining the permit or approval, or is denied, Great Vistas LLC shall promptly notify counsel for the United States. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.

    Enforcement

  4. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with Great Vista LLC and the parties will attempt to resolve the concern(s) in good faith. The United States will give Great Vistas LLC 30 days from the date it notifies Great Vista LLC of any breach of this Agreement to cure that breach, prior to instituting any court action.
  5. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.
  6. 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 Great Vistas LLC 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.

    Entire Agreement

  7. This Agreement constitutes the entire agreement between the parties, 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 are not contained in this written Agreement, shall be enforceable regarding the matters raised herein.

    Authority to Bind

  8. This Agreement shall be binding on Great Vistas LLC, including all its principals, agents, and successors in interest, and employees, as well as any person acting in concert with Great Vistas LLC, and Great Vistas LLC has a duty to so notify all such principals, agents, and successors. In the event Great Vistas LLC seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Great Vistas LLC shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this Agreement.

    Implementation

  9. This Agreement resolves all issues raised in United States' Matter No. 202-90-6. It is limited to those issues and does not address Great Vistas LLC's other obligations under the ADA, including physical access at any other facility or facilities owned, leased, or operated, now or in the future, by Great Vistas LLC.
  10. The person signing this document for Great Vistas LLC represents that he is authorized to bind Great Vistas LLC to this Agreement
  11. This Agreement will be provided to any person upon request.
  12. Any notice required to be given pursuant to this Settlement Agreement shall be sent by overnight delivery, to the parties at the following addresses:
    1. If from Great Vistas LLC to the United States, to:

      Ronald W. Sharpe
      U.S. Attorney
      District of the Virgin Islands
      Ron deLugo Federal Building
      5500 Veterans Drive, Suite 260
      St. Thomas, V.I. 00802-6424

    2. If from the United States to Great Vistas LLC, to:

      3. W. John Amerling
      6300 Frydenhoj Suite B-9
      St. Thomas, V.I. 00802

  13. The Effective Date of this Agreement is the date of the last signature below. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. Each signatory may deliver a signed copy of this Agreement by fax or email and any such faxed or emailed copy shall be deemed to be an original
  14. This Agreement shall remain in full force and effect for a period of five years from its Effective Date.

[1] On September 15, 2010, the Attorney General issued a revised regulation for title III of the ADA, including revised ADA Standards for Accessible Design (2010 Standards), 75 Fed. Reg. 56,164-358 (Sept. 15, 2010). Where applicable, this Agreement will reference the 1991 Standards or the 2010 Standards as those terms are defined in the revised regulation at 28 C.F.R. § 36.104 (2011),

 

GREAT VISTAS LLC.

FOR THE UNITED STATES OF AMERICA

RONALD W. SHARPE
United States Attorney


By:_________________
Hon. MARK FARRELL
Its President		 By: __________________________
Timothy J. Abraham  Jocelyn Hewlett
Assistant U.S. Attorney
Ron deLugo Federal Building
5500 Veterans Drive, Suite 260
St. Thomas, V.I. 00802-6424
____1/11/12___________________
Date		 ___2/1/12____________________
Date
 

March 9, 2012