SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND H& GROUP 5, LLC d/b/a MARKET PLACE KITCHEN & BAR
DJ # 202-14-246

The parties to this agreement (“Agreement”) are the United States of America and H&A Group 5, LLC (“H&A Group 5”).  The parties hereby agree as follows:

1. Background and Jurisdiction
   1. H&A Group 5 is the owner/operator of the Market Place Kitchen & Bar (“Market Place”) located at 32 Churchill Road, Newtown, 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 Market Place 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 Market Place.    
   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 Market Place 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).  H&A Group 5, as the owner and operator of the Market Place, is a public accommodation subject to the requirements of Title III of the ADA.  28 C.F.R. § 36.104.
   6. The Market Place facility was designed and constructed after March 15, 2012 and is new construction within the meaning of 28 C.F.R. § 36.401 and must comply with the new construction standards of the Americans with Disabilities Act (“ADA”) and the 2010 ADA Standards for Accessible Design  (“2010 Standards”), unless structurally impracticable.  The United States reviewed information provided by H&A Group 5, and conducted a site visit of the Market Place on April 25, 2019.  The United States used the ADA Standards for Accessible Design including the 2010 Standards, defined at 28 C.F.R. § 36.104, to identify ADA violations, which were shared with H&A Group 5. 
2. REMEDIAL ACTIONS TO BE TAKEN BY H&A GROUP 5
1. H&A Group 5 will make the following modifications to remedy violations of the ADA Standards at the Market Place:
7. Entrances and Exits
1. Within two months of the execution of this Agreement, H&A Group 5 shall ensure that:
   1. the threshold at the south door of the back patio entrance has a threshold that is ½ inch high maximum and, if between ¼ inch and ½ inch, that the threshold is beveled with a slope not steeper than 1:2 in accordance with the 2010 Standards §§ 206.4.1, 206.5.1, 404.2.5, and 303.2; and
   2. doors at exit discharge are identified by a tactile sign in raised characters and braille in accordance with the 2010 Standards §§ 216.4.1, 703.1, 703.2, and 703.5.
8. Dining and Bar Areas
1. Within four months of the execution of this Agreement, H&A Group 5 shall ensure that:
1. at least five percent of the Market Place’s available seating, equivalent to ten wheelchair spaces out of the 187 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 minimum, 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;
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;
4. 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
5. train any and all Market Place managers, hosts/hostesses, bartenders, and waitstaff regarding the policy described in subsection (iv) above.
9. Toilet Rooms
1. Promptly, but no later than one month following the execution of this Agreement, H&A Group 5 shall ensure that:
1. the force for pushing or pulling open the doors to the men’s and women’s toilet rooms is no more than 5 pounds maximum in accordance with the 2010 Standards §§ 206.5.2 and 404.2.9; and
2. the trash cans that are currently obstructing the clearance around the water closets are removed in accordance with the 2010 Standards §§ 213.2, 213.3.2, and 604.3.
2. Within four months of the execution of this Agreement, H&A Group 5 shall, for the men’s and women’s toilet rooms, ensure that:
1. the baseline of tactile characters on signs is located 48 inches minimum above the finish floor, measured from the baseline of the lowest tactile character, and 60 inches maximum above the finish floor, measured from the baseline of the highest tactile character in accordance with the 2010 Standards §§ 216.2 and 703.4.1;
2. the doors to designated accessible toilet compartments are self-closing in accordance with the 2010 Standards §§ 213.2, 213.3.1, and 604.8.1.2;
3. door pulls are provided on the inside of designated accessible toilet compartment doors so that door pulls are placed on both sides of doors near the latch in accordance with the 2010 Standards §§ 213.2, 213.3.1, 604.8.1.2, and 404.2.7;
4. the designated accessible toilet compartment door locks are operable with one hand and do not require tight grasping, pinching, or twisting of the wrist in accordance with the 2010 Standards §§ 213.2, 213.3.1, 604.8.1.2, 404.2.7, and 309.4;
5. the leading edges of toilet paper storage shelves are either higher than 80 inches above the finish floor or, if the leading edges of the toilet paper storage shelves are more than 27 inches and not more than 80 inches above the finish floor, that they protrude 4 inches maximum horizontally into the circulation path in accordance with the 2010 Standards §§ 204.1, and 307.2;
6. toilet paper dispensers in designated accessible toilet compartments shall be located on the side wall 7 inches minimum and 9 inches maximum in front of the water closet measured to the centerline of the dispenser in accordance with the 2010 Standards §§ 213.2, 213.3.2, and 604.7;
7. the mirror above the lavatory is installed with the bottom edge of the reflecting surface 40 inches maximum above the finish floor or a full length mirror is installed with the bottom edge of the reflecting surface 35 inches maximum above the finish floor in accordance with the 2010 Standards §§ 213.3.5 and 603.3; and
8. where there are coat hooks, there is at least one coat hook in designated accessible toilet compartments with a high side reach of 48 inches maximum and a low side reach of 15 inches minimum above the finish floor in accordance with the 2010 Standards §§ 213.2, 213.3.7, 603.4, and 308.3.1.
2. Alterations
10. Any future alterations, as defined in 42 U.S.C. §12183 and 28 C.F.R. § 36.402(b), made to the Market Place facility and not described in this Agreement shall comply in all respects with the ADA, its implementing regulations, and the 2010 Standards.
11. 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
12. 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 Market Place; provided, however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement.
13. The United States does not assert that this Agreement or the modifications contemplated herein will bring the Market Place 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.
14. The United States may review compliance with this Agreement at any time.  Upon reasonable advance notice to H&A Group 5, H&A Group 5 shall permit the United States and any person acting on its behalf unlimited access to the Market Place to review compliance with the ADA and this Agreement.
15. If the United States believes that H&A Group 5 has violated this Agreement or any requirement thereof, it agrees to notify Leonard Crone, Esq., counsel for H&A Group 5, in writing of the specific violation(s) alleged.  H&A Group 5 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). 
16. H&A Group 5 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 H&A Group 5 has agreed to correct have been so corrected.  H&A Group 5 shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Market Place 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.
17. 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

18. This Agreement is a public document.  A copy of this document or any information contained in it may be made available to any person.
19. 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.
20. 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 H&A Group 5 and the Market Place to comply with all aspects of the ADA.
21. 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 H&A Group 5 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.
22. 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.
23. In the event H&A Group 5 seeks to transfer, or assign all or part of its interest or lease the premises, as a condition of sale, assignment, or lease, H&A Group 5 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.
24. 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.