SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND IL POMOD’ORO RESTAURANT & PIZZERIA
DJ # 202-14-224

The parties to this agreement (“Agreement”) are the United States of America and Il Pomod’Oro, LLC (“Il Pomod’Oro”). The parties hereby agree as follows:

1. BACKGROUND AND JURISDICTION
1. Il Pomod’Oro is the owner/operator of the Il Pomod’Oro Restaurant (the “Restaurant”) located at 113 Boston Post Road, East Lyme, Connecticut.
2. The United States Attorney’s Office for the District of Connecticut, a component of the United States Department of Justice (“United States”), opened an investigation of the Restaurant facility pursuant to Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12181-12189, and its implementing regulations, 28 C.F.R. pt. 36.  The United States initiated its investigation upon the receipt of a complaint from an individual regarding lack of accessibility at the Restaurant.    
3. The United States is authorized to investigate alleged violations of Title III of the ADA.  Moreover, the United States is authorized, where appropriate, to use alternative means of dispute resolution, including settlement negotiations to resolve disputes.  If resolution is not achieved, the United States may bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a pattern or practice of discrimination exists or where the case raises an issue of general public importance.  42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506. 
4. Title III of the ADA mandates that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”  42 U.S.C. § 12182(a).
5. The Restaurant is a place of public accommodation within the meaning of Title III because it is “a restaurant, bar, or other establishment serving food or drink.”  42 U.S.C. § 12181(7)(B).  Il Pomod’Oro, as the owner and operator of the Restaurant, is a public accommodation subject to the requirements of Title III of the ADA.  28 C.F.R. § 36.104.
6. The Restaurant is an existing facility originally constructed prior to the effective date of the ADA, however, alterations were made after March 15, 2012, including full renovation of the Restaurant’s interior and restriping of the facility parking lot.  Because the Restaurant has undergone alterations as defined by the ADA, 28 C.F.R. § 36.402(b), the altered portions of the facility must be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, to the maximum extent feasible.  42 U.S.C. § 12183(a)(2); 28 C.F.R. § 36.402(a).
7. The United States reviewed information provided by Il Pomod’Oro, and conducted a site visit of the Restaurant on May 14, 2018.  The United States used the ADA Standards for Accessible Design, including the 1991 Standards defined at 28 C.F.R. Part 36, Appendix D, and the 2010 Standards defined at 28 C.F.R. § 36.104, to identify ADA violations, which were shared with Il Pomod’Oro. 
2. REMEDIAL ACTIONS TO BE TAKEN BY IL POMOD’ORO
1. Il Pomod’Oro will make the following modifications to improve accessibility for individuals with disabilities at the Restaurant:
8. Parking
1. Within one month of the execution of this Agreement, Il Pomod’Oro shall ensure that:
1. in accordance with the 2010 Standards §§ 208.2, 208.2.4 and 502.1, there are at least two accessible parking spaces, including at least one van accessible parking space on the shortest accessible route to the new accessible entrance;
2. the accessible car parking space is 96 inches wide minimum, marked to define the width, and has an adjacent access aisle complying with § 502.3 in accordance with the 2010 Standards §§ 208.2, 208.2.4 and 502;
3. the van accessible space is 132 inches wide minimum, marked to define the width, and has an adjacent access aisle complying with the 2010 Standards § 502.3;
4. the access aisle of the van accessible space is 60 inches wide minimum extending the full length of the parking space and that it is marked to discourage parking in it in accordance with the 2010 Standards §§ 208.2, 502.2 and 502.3;
5. the sign identifying the van accessible parking space shall contain the designation “Van Accessible” in accordance with the 2010 Standards §§ 216.5 and 502.6; and
6. signs for both accessible parking spaces shall include the International Symbol of Accessibility and shall be 60 inches minimum above the ground surface measured to the bottom of the sign in accordance with the 2010 Standards §§ 216.5, 502.6 and 703.7.2.1.
9. Designated Accessible Entrance
1. Within three months of the execution of this Agreement, Il Pomod’Oro shall ensure that:
1. the ramp handrail on the deck side of the ramp extends horizontally above the landing for 12 inches minimum beyond the top and bottom of the ramp runs and that the extension returns to a wall, guard, or the landing surface in accordance with the 2010 Standards §§ 206.2.1, 402.2, 405.8, and 505.10.1; and
2. the threshold at the designated accessible door is not higher than ½ inch and that any change in level between ¼ inch high and ½ inch high is beveled with a slope not steeper than 1:2 in accordance with the 2010 Standards §§ 206.4, 206.5.1, 404.2.5, and 303.3.
10. Dining Surfaces and Dining Areas
1. Within six months of the execution of this Agreement, Il Pomod’Oro shall ensure that:
1. at least five percent of the restaurant’s available seating, equivalent to four wheelchair spaces out of the 67 available seating spaces, are located at accessible dining surfaces complying with the 2010 Standards § 902;
2. accessible dining surfaces have clear floor space, 30 inches minimum by 48 inches maximum, complying with the 2010 Standards § 305 positioned for a forward approach with toe clearance extending 17 inches minimum under the surface and knee clearance at least 11 inches deep at 9 inches high and at least 8 inches deep at 27 inches high in accordance with the 2010 Standards §§ 226, 902.2, 305, and 306; and
3. accessible dining surfaces are dispersed throughout the facility containing dining surfaces, including the indoor and outdoor dining areas and in the bar area in accordance with the 2010 Standards §§ 226.1, 226.2, and 902.
11. Bar Area
1. Within three months of the execution of this Agreement, Il Pomod’oro shall:
   1. create a policy setting forth procedures and protocols for ensuring equivalent bar service is available for patrons with disabilities at accessible tables in the bar area and at accessible tables adjacent to the bar area, including the availability to such patrons with disabilities of any promotions, specials or menus available only to bar patrons; and
   2. train any and all Restaurant managers, hosts/hostesses, bartenders, and waitstaff regarding the policy.
12. Outdoor Patio
1. Within three months of the execution of this Agreement, Il Pomod’Oro shall ensure that the threshold between the interior of the restaurant and the outdoor patio is beveled with a slope not steeper than 1:2 in accordance with the 2010 Standards §§ 206.4, 206.5.1, 404.2.5, and 303.3.
2. Whenever the outdoor patio is in use for guest dining, there shall be a table set directly underneath the light fixtures along the wall so that the leading edge of the light fixture does not protrude more than 4 inches maximum horizontally into the circulation path in accordance with the 2010 Standards §§ 204.1 and 307.2.
13. New Accessible Toilet Room
1. Within nine months of the execution of this Agreement, Il Pomod’Oro shall submit architectural plans and/or drawings illustrating the remediation of the toilet room to be fully compliant with all requirements of the 2010 Standards.  The architectural plans and/or drawings shall illustrate all required compliant features including elevations and sections.
2. The United States shall approve or deny such plans or drawings within 30 days of submission.  If the United States denies the plans and/or drawings, Il Pomod’Oro shall have 15 days to adjust such plans and/or drawings and to submit the corrected plans and/or drawings for approval. 
3. Within 18 months of approval of the architectural plans submitted pursuant to Section II(6)(a) of this Agreement, Il Pomod’Oro shall complete renovation of the toilet room in accordance with the approved drawings and/or plans. 
2. Alterations
14. Any future alterations, as defined in 42 U.S.C. §12183 and 28 C.F.R. § 36.402(b), made to the Restaurant facility and not described in this Agreement shall comply in all respects with the ADA, its implementing regulations, and the 2010 Standards. 
15. If an alteration affects or could affect the usability of or access to an area of the facility that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered areas are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration.  42 U.S.C. §12183(a); 28 C.F.R. § 36.403. 
3. IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT
16. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit for failure to comply with Title III of the ADA at the Restaurant; provided, however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement.
17. The United States does not assert that this Agreement or the modifications contemplated herein will bring the Restaurant into compliance with all aspects of the ADA, and nothing in this Agreement is intended to constitute an interpretation of the legal requirements of the ADA by the United States.  Rather, the parties enter into this Agreement for the purpose of compromising disputed claims and avoiding the risk and expenses of litigation.  This Agreement is a compromise and it shall not be used or introduced into evidence in any other case or proceeding other than between the parties to this Agreement.
18. The United States may review compliance with this Agreement at any time.  Upon reasonable advance notice to Il Pomod’Oro, Il Pomod’Oro shall permit the United States and any person acting on its behalf unlimited access to the Restaurant to review compliance with the ADA and this Agreement.
19. If the United States believes that Il Pomod’Oro has violated this Agreement or any requirement thereof, it agrees to notify Mr. Petrit Marku, Member, Il Pomod’Oro, LLC, in writing of the specific violation(s) alleged.  Il Pomod’Oro shall have 30 days from its receipt of the notice to cure and/or respond in writing to the United States the alleged violation(s). 
20. Il Pomod’Oro shall provide certifications to the United States, every six months until full compliance with this Agreement is achieved, in the form of a narrative report and photos showing that the items within this Agreement that Il Pomod’Oro has agreed to correct have been so corrected.  Il Pomod’Oro shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Restaurant facility did not comply with the ADA or that individuals with disabilities at the facility were subject to discrimination on the basis of disability.  The parties expressly agree that providing such certifications is essential to the enforcement of this Agreement, and that a failure to provide the certifications required by this paragraph constitutes a breach of this Agreement.
21. All notices, demands, reports or other communication to be provided to the United States pursuant to this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following:

Jessica H. Soufer, Assistant U.S. Attorney
U.S. Attorney’s Office
157 Church Street, 25th Floor
New Haven, CT 06510
email: jessica.soufer@usdoj.gov

22. This Agreement is a public document.  A copy of this document or any information contained in it may be made available to any person.
23. 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 its right to do so with regard to other deadlines and provisions of this Agreement.
24. 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, shall be enforceable.  This Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the ADA, including violations of the alterations or new construction provisions of the ADA, or any other Federal law.  This Agreement does not affect the continuing responsibility of Il Pomod’Oro and the Restaurant to comply with all aspects of the ADA.      
25. If any provision 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 Il Pomod’Oro shall engage in good faith negotiations in order to adopt such 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.
26. A signor of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Agreement.
27. In the event Il Pomod’Oro seeks to transfer, or assign all or part of its interest or lease the premises, as a condition of sale, assignment, or lease, Il Pomod’Oro shall obtain the written accession of the successor, assignee, or lessee, to any obligations remaining under this Agreement for the remaining term of the Agreement. 
28. The Effective Date of this Agreement is the date of the last signature below. This Agreement shall remain in effect for three years from the Effective Date.