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, with the United States Department of Justice (“the Department”) against the Harrington Hotel Company, Inc. (“Company), owner and operator of the Hotel Harrington in Washington, D.C. (“Hotel”). The Department states that Department of Justice complaint number 202-16-101 alleged that the Company advertised the availability of accessible rooms but that those rooms did not comply with title III and its implementing regulation, including the Standards for Accessible Design (“ADA Standards”), 28 C.F.R. Part. 36, App. A. The Department investigated these allegations. Thereafter, the parties met in good faith to resolve the issues identified by the Department. Accordingly, in order to resolve their differences without the burden, expense and delay of litigation, the Department and the Company have engaged in good faith negotiations. As a result of those negotiations, they have reached this settlement agreement.
2. The Attorney General is authorized to enforce title III of the ADA by seeking the alteration of facilities to make such facilities readily accessible to and usable by individuals with disabilities. 42 U.S.C. §12188(a)(2). In addition, to the extent provided by applicable law, 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. Id. at §12188(b)(1)(B).
3. The Department and the Company agree that nothing contained in this agreement, or the fact of this agreement, shall constitute an admission by the Company that it has, at any time or in any way, violated the ADA or that the Company otherwise is liable or has engaged in wrongdoing. Except pursuant to the provisions of Paragraph 14 of this agreement, the United States shall not institute a civil action alleging a violation of the ADA as against the Company. The Department also represents that, with the exception of complaint 202-16-101, there are no other complaints against the Company alleging violations of the ADA.
4. The Hotel is a place of lodging, providing approximately 245 separate sleeping rooms for guests, and as such is a place of public accommodation covered by title III of the ADA. 42 U.S.C. §12181(7)(A). The Harrington Hotel Company, Inc. (d/b/a Hotel Harrington), is an S corporation incorporated in the State of Delaware (“Company”). The Company is the owner and operator of the Hotel, which was constructed long before the ADA’s effective date.
5. The Company agrees to undertake barrier removal, as outlined in this settlement agreement, to continue in its efforts, as outlined in this agreement, to ensure that individuals with disabilities, including individuals who use wheelchairs and those who are deaf or hard of hearing, have an opportunity equal to that of non-disabled individuals to enjoy the Hotel’s accommodations, consistent with the requirements of the ADA.TERMS
6. The Company will make reasonable good faith efforts to obtain permits and authorizations including, but not limited to, building permits and certificates of occupancy that may be required under local law, ordinance, or other applicable law, in order to accomplish the modifications required by this agreement. Such efforts will include notification to the City government or other applicable authority of the requirements of this agreement.
a. If the City or other applicable authority (the term ‘other applicable authority’ includes, but is not limited to, the District of Columbia Historic Preservation Office, the National Capital Planning Commission, the District of Columbia Commission on Fine Arts, the District of Columbia Preservation League and the National Park Service) does not provide permits or authorizations in a timely manner, and such delay impacts the Company’s ability to make any of the modifications set forth in this agreement within any of the time periods set forth in this agreement, the applicable time period(s) for the Company to make the modification(s) at issue shall be automatically extended by the period of the delay. If the City or other applicable authority refuses to provide permits or authorizations needed to accomplish any modification required under this agreement, or conditions the issuance of any such permit or authorization on the Company’s making modifications in addition to those required by this Agreement, and such additional requirement(s) would cause the Company to expend more than ten (10) percent of the estimated cost of a specific modification regarding items 1-5 of Appendix A, or two (2) times the estimated cost of a specific modification regarding items 6-9 of Appendix A, the Company’s obligation to make the modification(s) will be suspended while the Company and the Department meet in a good faith effort to agree on a comparable substitute modification(s) that will cost no more than the applicable cost estimate(s) specified in Appendix A. In the event that the Company and the Department are unable to reach agreement on a comparable substitute modification(s) within the applicable cost estimate(s) specified in Appendix A, the Company will not be required to make the modification(s) at issue but will be required to expend the applicable amount reflected in Appendix A on other improvements to accessibility; however, the Company will not be required to make any such other improvements to accessibility until the Department and the Company agree on such other improvements.
b. The making of modifications required by any part of this agreement shall not trigger any other obligations under the ADA, subsidiary, ancillary or otherwise. For example and without limitation, the installation of the fire alarm system, an alternate flooring system and any other elements specifically enumerated in and required by this agreement shall not give rise to an obligation to make accessible under the requirements for new construction and/or alteration of the Standards the spaces and/or elements in which such modifications are made.
c. In the event that the Hotel has been or is designated as historic (e.g., listed on or determined eligible for the National Register), any modification to a historically-significant element required by this agreement shall be subject to the provisions of Section 4.1.7 of the ADA Standards. Moreover, to the extent that any requirement of this agreement conflicts with the National Historic Preservation Act (16 U.S.C. § 470 et. seq.) or any other federal or local historic preservation law, rule or regulation, the Company’s obligation will be suspended while the Company and the Department meet in a good faith effort to agree on a comparable substitute modification(s) that will not conflict with applicable law and that will cost no more than the applicable cost estimate(s) specified in Appendix A. In the event that the Company and the Department are unable to reach agreement on a comparable substitute modification(s) within the applicable cost estimate(s) specified in Appendix A, the Company will not be required to make the modification at issue, but will be required to expend the applicable amount reflected in Appendix A on other improvements to accessibility; however, the Company will not be required to make any such other improvements to accessibility until the Department and the Company agree on such other improvements. The Department certifies that it has complied with all applicable provisions of the National Historic Preservation Act in entering into this agreement.7. The Company enters into this agreement in good faith and with the intent of making the required modifications in substantial compliance with the applicable ADA Standards. However, the Department and Company recognize that the Hotel was built early in the last century. Accordingly, as the Company undertakes to make the specific modifications identified in this agreement, it may discover structural or other impediments. Although the Company will undertake reasonable, good faith efforts to make all modifications as identified in this agreement, such structural or other impediments may render some modifications not readily achievable or technically infeasible. To the extent that, in making any modification(s) required by this Agreement, the Company would be required to expend more than ten (10) percent of the estimated cost of a specific modification regarding items 1-5 of Appendix A, or two (2) times the estimated cost of a specific modification regarding items 6-9 of Appendix A, the Company’s obligation to make the modification(s) will be suspended while the Company and the Department meet in a good faith effort to agree on a comparable substitute modification(s) that will cost approximately the same as, but no more than, the applicable cost estimates specified in Appendix A. In the event that the Company and the Department are unable to reach agreement on comparable substitute modification(s) within the applicable cost estimate(s) specified in Appendix A, the Company will not be required to make the modification at issue. Nothing in this Paragraph shall be interpreted to permit or authorize a reduction in the number of rooms the Company will modify in accordance with this agreement.
8. The Company will complete the following actions within one year of the effective date of this agreement:a. Install an audible and visual alarm system throughout all common use areas of the Hotel and in the sleeping rooms and adjoining bathrooms required to be accessible by this agreement. §§ 9.3.1, 4.28. This agreement requires only that the alarm system selected and installed by the Company contain audible and visual alarms in the common use areas and in the 7 sleeping rooms and adjoining bathrooms required to be accessible by this agreement. In no event shall the Company be required by this agreement, or by the operation of this agreement, to install audible or visual alarms in any sleeping room or bathroom other than the 7 rooms enumerated in this agreement to be made accessible. The Company retains complete discretion in selecting and designing the alarm system.
b. Provide a curb ramp near the front of the Hotel’s 11th Street N.W. entrance, unless otherwise prohibited or required by City ordinance. §§ 4.3.8, 4.7.
c. Replace signs for permanent rooms and spaces, and signs that give direction to or information about functional spaces in the Hotel, with signs that are accessible. §§ 4.1.3(16), 4.30.
d. Provide a permanent text telephone (TTY), or portable TTY with a shelf and electrical outlet at a pay telephone and a directional sign as to the location of the portable device. §§ 4.1.3(17)(d), 4.31.9, 4.30.7(3).
e. Alter the route from the dining room to the cafeteria line in the Harrington Café so that there is no change in level greater than 1/2 inch and beveled with a slope no greater than 1:2. §§ 4.3.8, 4.5.2.
f. Ensure that Elevator 3 has an audible signal at each hoistway entrance, and raised and Braille floor designations on both jambs on each floor. §§ 4.10.4, 4.10.5.9. Within two years of the effective date of this agreement, the Company will provide an accessible, single-user men’s public toilet room and an accessible, single-user women’s public toilet room in the Hotel lobby area. (At its option, the Company may instead install two accessible unisex public toilet rooms, instead of one men’s and one women’s accessible public toilet room.) Each toilet room will be identified by the International Symbol of Accessibility and be located on an accessible route so that the spaces and elements, including the room identification sign, entry door and hardware, clear floor space, turning space, interior accessible route, water closet, urinal (men’s only if provided), grab bars, lavatory, mirror, and controls and dispensers comply with the Standards. §§ 4.1.2(7)(d), 4.22, 4.2, 4.3, 4.13, 4.16 and Figs. 28 & 29, 4.19 and Figs. 31 & 32, 4.25, 4.26, 4.27, 4.30. The Company will install signs at its inaccessible public toilet rooms and in conspicuous places directing users to the location of the accessible toilet rooms. §§ 4.1.3(16)(b), 4.30.1, 4.30.2, 4.30.3, 4.30.5.
10. The Company will modify seven sleeping rooms so that they are accessible to people with disabilities on the following schedule. Each of the seven rooms will comply with the relevant provisions of the ADA Standards, including the provision that accessible rooms be dispersed among the various classes of sleeping accommodations available to customers (including size, cost, amenities provided, and number of beds). § 9.1.4. The Company will locate three of these rooms on the first floor, two of these rooms on the second floor, and the remaining two rooms on the third floor.a. Within one year of the effective date of this agreement, the Company will provide one sleeping room with a bathroom equipped with a tub or transfer shower.
b. Within two years of the effective date of this agreement, the Company will provide one additional sleeping room with a bathroom equipped with a roll-in shower and one additional sleeping room with a bathroom equipped with a tub or transfer shower.
c. Within three years of the effective date of this agreement, the Company will provide two additional sleeping rooms with bathrooms equipped with a tub or transfer shower, provided that the gross room revenue for the most recent prior fiscal year (April 1-March 31) equals or exceeds $4 million. If the gross room revenue is less than $4 million, then the obligation to provide these two accessible rooms is suspended (and the time period for complying with Paragraph 10(c) of this agreement is tolled), until the gross room revenue equals or exceeds $4 million in the first subsequent fiscal year.
d. Within four years of the effective date of this agreement (or in such greater time as tolled by the provision in Paragraph 10(c)), the Company will provide one additional sleeping room with a bathroom equipped with a roll-in shower and one additional sleeping room with a bathroom equipped with a tub or transfer shower, provided that the gross room revenue for the most recent prior fiscal year (April 1-March 31) equals or exceeds $4 million. If the gross room revenue is less than $4 million, then the obligation to provide these two accessible rooms is suspended until the gross room revenue equals or exceeds $4 million in the first subsequent fiscal year.
e. The Company will notify the Department of its annual gross room revenues if they fall below $4 million during the term of this agreement, by submitting the summary page of IRS Form 1120-S to the Department within 14 business days of the Company’s submitting the 1120-S to the IRS.11. The Company will take the following actions to ensure that each sleeping room identified in Paragraph 10 above, exclusive of the bath or shower room, complies with ADA Standards:
a. Locate the room on an accessible route, and provide an accessible route within the room that connects all accessible spaces and elements. §§ 4.3, 9.2.2, 9.2.2(2).
b. Provide signage in the hallway designating the accessible sleeping room so that it is on the latch side of the sleeping room door; includes Braille and raised numbering and/or lettering; and is mounted at 60 inches above the finish floor to the centerline of the sign. §§ 4.1.3(16)(a), 4.30.4, 4.30.5, and 4.30.6.
c. On doors into and within the room, provide door hardware that is easy to grasp with one hand and does not require tight grasping, pinching, or twisting of the wrist to operate. §§ 4.13.9, 9.2.2(3).
d. For doors into and within the room, provide sufficient maneuvering clearances on both the push and pull sides that are clear and level. §§ 4.13.6 & Fig. 25, 9.2.2(3).
e. For doors into and within the room, ensure that the force required to open the door is no more than 5 pounds. §§ 4.13.11(2)(b), 9.2.2(3).
f. For doors into and within the room, ensure that any door closers have a sweep period of at least 3 seconds to move from an open position of 70 degrees to a point 3 inches from the latch, measured to the leading edge of the door. §§ 4.13.10, 9.2.2(3).
g. For doors into and within the room, provide a minimum clear opening width of 32 inches measured from the face of door to the opposite door stop with the door open 90 degrees. §§ 4.13.5 & Fig. 24., 9.2.2(3).
h. Provide maneuvering space at least 36 inches wide along both sides of the bed, and between beds where more than one is provided. § 9.2.2(1).
i. Where applicable, one of each type of fixed or built in storage provided (closets, drawers, shelves) shall have sufficient clear floor space and be within the reach ranges of a person using a wheelchair. §§ 4.2.5, 4.2.6, 4.25 & Fig. 38, 9.2.2(4).
j. Provide room controls (e.g., for light fixtures, heat/air conditioning, draperies) that have sufficient clear floor space, are within the reach ranges of a person using a wheelchair, and can be operated with one hand, without tight grasping, pinching, or twisting of the wrist. §§ 4.27, 9.2.2(5).
k. Provide visual notification devices to alert hearing impaired guests of incoming telephone calls and knocks on the door, or electrical outlets within the reach ranges of a person using a wheelchair and portable notification devices. §§ 4.2.5, 4.2.6, 9.2.2(8), 9.3.1, 9.3.2.
l. Provide a telephone with volume controls; an electrical outlet within the reach ranges of a person using a wheelchair that is within 4 feet of the telephone to facilitate the use of a TTY; and a TTY. §§ 4.2.5, 4.2.6, 4.31.5, 9.2.2(8), 9.3.1, 9.3.2; 28 C.F.R. § 36.303(d).12. The Company will take the following actions to ensure that each bathroom within the accessible guest rooms identified in Paragraph 11 above complies with ADA Standards:
a. Provide clear floor space at fixtures, an accessible route to fixtures and controls, and an unobstructed turning space. §§ 4.2.3, 4.23.3, 9.2.2(6)(e).
b. Provide a lavatory that has a rim not higher than 34 inches above the finish floor; an apron that is at least 29 inches above the finish floor; toe and knee clearances that comply with the Standards; faucets that are operable with one hand and do not require tight grasping, pinching, or twisting of the wrist; and hot water and drain pipes that are wrapped or otherwise configured to protect against contact. §§ 4.19 & Fig. 31, 4.23.6, 4.27.4, 9.2.2(6)(e).
c. Provide a mirror so that the bottom edge of the reflecting surface of the mirror is no higher than 40 inches above the finish floor. §§ 4.19.6, 4.23.6, 9.2.2(6)(e).
d. Provide a toilet so that the centerline is exactly 18 inches from a side wall, the top of the toilet seat is between 17 and 19 inches above the finish floor, and the flush control is on the open side of the room. §§ 4.16.2, 4.16.3, 4.16.5 & Fig. 28, 4.23.4, 9.2.2(6)(e).
e. Provide a side grab bar so that the end nearest the back wall begins no more than 12 inches from the wall, it is at least 42 inches long, and the end farthest from the back wall is located at least 54 inches from the back wall. Provide a rear grab bar that is at least 36 inches long with the end closer to the side wall mounted at least 12 inches from the centerline of the toilet, i.e., no more than 6 inches from the side wall. §§ 4.16.4 & Fig. 29, 4.23.4, 9.2.2(6)(e).
f. Provide a toilet paper dispenser that is within reach of the toilet, below the side grab bar, and at least 19 inches above the finish floor to the centerline of the roll. §§ 4.16.6 & Fig. 29(b), 4.23.4, 9.2.2(6)(e).
g. Where applicable, one of each type of fixed or built in storage provided (e.g., drawers, shelves) shall have sufficient clear floor space and be within the reach ranges of a person using a wheelchair. §§ 4.2.5, 4.2.6, 4.25 & Fig. 38, 9.2.2(4).
h. Ensure that at least one of each type of controls, dispensers, receptacles or other equipment provided is within the reach ranges of a person using a wheelchair and is operable with one hand and does not require tight grasping, pinching, or twisting of the wrist. §§ 4.2.5, 4.2.6, 4.23.7, 4.27, 9.2.2(6)(e).
i. Where a bathtub is provided, ensure that there is adequate clear floor space in front of the bathtub; it has an in-tub seat or seat at the end of the tub that is securely mounted and does not slip during use; has grab bars that comply with the Standards; has faucets and controls that are located in compliance with the Standards and are operable with one hand and do not require tight grasping, pinching, or twisting of the wrist; has a height adjustable shower spray unit with a hose at least 60 inches long that can be used both as a fixed shower head and as a hand-held shower; and has enclosures, if any, that do not obstruct controls or a transfer from a wheelchair onto the seat or into the tub and do not have tracks mounted on their rims. §§ 4.20 & Figs. 33, 34, 4.23.8, 9.2.2(6)(e).
j. Where a transfer shower is provided, ensure that there is adequate clear floor space in front of the shower stall; the stall is exactly 36 inches wide and 36 inches deep; has a curb that is not more than 1/2 inch high; has a seat that is mounted on the wall opposite the controls, 17 to 19 inches above the shower floor, and extends the depth of the stall; has grab bars that comply with the Standards; and has a height adjustable shower spray unit with a hose at least 60 inches long that can be used both as a fixed shower head and as a hand-held shower. §§ 4.21 & Figs. 35(a), 4.23.8, 9.2.2(6)(e).
k. Where a roll-in shower is provided, ensure that there is adequate clear floor space in front of the shower; there is no curb; the shower dimensions and location of the folding seat, grab bars, and controls conform to Figure 57(a) or 57(b); the seat is mounted 17 to 19 inches above the shower floor; and there is a height adjustable shower spray unit with a hose at least 60 inches long that can be used both as a fixed shower head and as a hand-held shower. §§ 4.21 & Figs. 57(a) or 57(b), 4.23.8, 9.1.2, 9.2.2(6)(e).13. At yearly anniversaries of the effective date of this agreement until the agreement terminates, the Company will submit a report to the Department summarizing the actions it has taken pursuant to this agreement and submit to an onsite inspection by Department personnel so that its architectural modifications can be reviewed for compliance with the ADA Standards.
ENFORCEMENT
14. The Department of Justice may review compliance with this agreement at any time. If the Department believes that this agreement or any of its requirements have been violated, the Department and the Company shall confer in good faith in order to attempt to resolve the issue or alleged violation. If the parties are unable to reach a resolution, after having conferred in good faith, the Department may then institute a civil action in federal district court in which the Department may seek to have the Court adjudicate the issue, following written notice to the Company of possible violations and a period of 90 days in which the Company has the opportunity to cure the alleged violations.
15. If at any time the Company desires to modify any portion of this agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval shall not be unreasonably withheld or delayed. This Paragraph applies to proposed modifications of this agreement. It shall not be interpreted to limit or restrict the Company’s rights under any part of this agreement, or to create any condition precedent, limitation or restriction regarding the discharge of obligations under Paragraphs 6 and 7.
16. Notwithstanding any other provision of this agreement, all obligations contained herein are automatically suspended in the event the Company’s gross room revenue decreases to below $2 million in a fiscal year. In such a case, the Company will notify the Department in writing that the contingency in this Paragraph 16 has occurred and will provide the Department with supporting documentary evidence. The Company and the Department will meet in good faith within 90 days thereafter to discuss the status of the Company’s revenue and to agree on a date for lifting the suspension.
17. Failure by the Department or the Company to enforce or require compliance with this entire agreement or any of its provisions or deadlines shall not be construed as a waiver of the Department’s or the Company’s rights to enforce other provisions and deadlines of this agreement.
18. This agreement shall be binding on the Company and its successors in interest. The Company will notify all such successors in interest of this agreement and the duties and responsibilities it imposes on them.IMPLEMENTATION
19. This agreement is a public agreement. A copy of this document or any information contained in it may be made available to any person by the Company or the Department by request. Nothing herein shall be interpreted to authorize or permit the Department to release or make public any information that the Company provided to the Department during the Department’s investigation. Notwithstanding the preceding sentence, nothing in this Agreement shall require the Department to violate the Freedom of Information Act.
20. The effective date of this agreement is the date of the last signature below.
21. This agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, will be enforceable under its provisions.
22. By entering into this agreement, the Department agrees not to institute a lawsuit alleging violations of title III of the ADA by the Company or to assess or require any other penalty, payment or action except as expressly set forth herein. In no way shall changes to title III of the ADA, the Department’s implementing regulation or the ADA Standards for Accessible Design that are enacted after the date of this agreement and that change the meaning of the terms readily achievable and technically infeasible or alter any physical standards result in the Department finding a violation of this agreement.
23. This agreement will remain in effect for five years from the effective date of this agreement or until the parties agree that full compliance with this agreement by the Company has been achieved. However, should the Company cease operations at any time before the expiration of this agreement, all obligations of the Company under this agreement will cease at the time of the cessation. If there is one or more successor in interest who owns or operates the Hotel if the Company ceases operations, the provisions of paragraph 18 control.
24. The person signing this document for the Company represents that he is authorized to bind the Company to this agreement.
For the Respondent: For the United States:
__________________________
Dr. Charles W. McCutchen
The Harrington Hotel Company, Inc.
Washington D.C
Date 4/3/03
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
By:__________________________
JOHN L. WODATCH, Chief
SUSAN BUCKINGHAM REILLY
MARY LOU MOBLEY
MICHELE ANTONIO MALLOZZI, Architect
U.s Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section-NYA
Washington, DC 20530
Date 4/4/03
APPENDIX A
1) Accessible Guestrooms w/roll-in shower: $37,500.00 each 2) Accessible Guestroom w/accessible tub: $36,500.00 each 3) Public Restroom in Lobby : $49,200.00 4) Audible/Visual Alarm System: $190,100.00 5) Signage System (interior): $19,000.00 6) Permanent TTY (1 at public Telephone): $19,000.00 7) Floor Transition at Cafeteria : $400.00 8) Curb Ramp at Front of Building : $2,100.00 9) Braille Symbols $2,900.00
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April 23, 2003