SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

McGUFFEY'S RESTAURANTS, INC.

DEPARTMENT OF JUSTICE NUMBER 202-43-25

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 (“DOJ” or “the Department”) against McGuffey’s Restaurants, Inc. (“McGuffey’s”). The Department’s investigation of the complaint has revealed that certain aspects of the two McGuffey’s restaurants located in the Branson, Missouri area that were constructed since title III’s effective date violate title III and its implementing regulation, including the Standards for Accessible Design (“ADA Standards”), 28 C.F.R. pt. 36 app. A. The Department further alleges that McGuffey’s Branson-area restaurant constructed before title III’s effective date contains architectural barriers to access, and that removal of these barriers is readily achievable.

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. See 42 U.S.C. § 12188(a)(2). In addition, 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. See id. at §12188(b)(1)(B).

3. McGuffey’s Restaurants, Inc. (“McGuffey’s”), is a private entity operating “McGuffey’s” restaurants, establishments serving food and drink and as such places of public accommodation covered by title III of the ADA. See 42 U.S.C. § 12181(7)(f); 28 C.F.R. § 36.104. There are three “McGuffey’s” restaurants in the Branson, Missouri area, located at 2600 West Highway 76 (“McGuffey’s 76"); 1464 State Highway 248 (“McGuffey’s 248"), and 3265 Falls Parkway #Z (“McGuffey’s Falls”). McGuffey’s 76 and McGuffey’s Falls were constructed after the effective date of title III’s provisions for new construction, and hence are subject to the ADA Standards, 28 C.F.R. pt. 36 app. A. McGuffey’s 248 was constructed before the effective date of title III’s provisions for new construction, but is subject to title III’s barrier removal provision, 42 U.S.C. §12182(b)(2)(iv).

4. McGuffey’s states that it is committed to full compliance with the Americans with Disabilities Act, as determined by the Department. To demonstrate that commitment, McGuffey’s has agreed to correct violations of the ADA Standards for new construction and alterations at McGuffey’s 76 and McGuffey’s Falls, and also to remove architectural barriers that exist at McGuffey’s 248. McGuffey’s agrees to take the steps outlined in this Settlement Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the goods and services of its restaurants. In light of this agreement, the parties have determined that Department of Justice Matter Number 202-43-25 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.

AGREEMENT

5. McGuffey’s and its officers, agents, and employees are hereby enjoined from:

a. making further alterations to McGuffey’s 76, McGuffey’s 248, and McGuffey’s Falls that do not comply with Title III of the ADA and the ADA Standards;

b. failing to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable; and

c. discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods and services of McGuffey’s 76, McGuffey’s 248, and McGuffey’s Falls.

6. Within 60 days of the effective date of this Settlement Agreement, McGuffey’s shall present to the Department a set of detailed specifications, architectural plans, or other written or illustrative material, displaying proposed modifications to McGuffey’s 76, McGuffey’s 248, and McGuffey’s Falls, to be undertaken as follows:

McGUFFEY’S 76

Parking

a. Mount signage at the designated parking space in the lower part of the parking lot so that the signage cannot be obscured by a vehicle parked in the space, in compliance with ADA Standards §§ 4.1.2(5) and 4.6.3.

Entrance

b. Adjust the interior vestibule door so that the force required to open it is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(8), 4.1.3(7)(a), and 4.13(11). Compliance with this provision may be achieved by the installation of an automatic door opener/closer.

Dining Areas

c. Provide three (3) accessible booths, or 5% of the 52 booths in the restaurant. Such booths shall be constructed with a knee clearance at least 30 inches wide, at least 19 inches deep, and shall be adjacent to clear floor space connected to an accessible route at least 36 inches wide, in compliance with ADA Standards §§ 4.1.3(18), 4.32.2, 4.32.3, 4.2.4.2, and Figure 45. Compliance with this provision may be achieved by replacing some fixed booth seating with non-fixed seating. The accessible booths shall be distributed throughout the restaurant, including the bar, in compliance with ADA Standards § 5.1.

d. Modify or replace the handrails on both sides of the ramp to the “Classroom B” dining area so that the handrails extend at least 12 inches beyond the top and bottom of the ramp parallel to the walking surface, in compliance with ADA Standards §§ 4.1.3(1) and 4.8.5(2).

e. Modify or replace the left side handrail on the ramp to the “Classroom B” dining area so that it is between 34 and 38 inches above the ramp surface, in compliance with ADA Standards §§ 4.1.3(1) and 4.8.5(5); so that the space between the handrail and the wall is exactly one and a half (1 1/2) inches, in compliance with ADA Standards §§ 4.1.3(1), 4.8.5(3) and 4.26.2; and so that the gripping surface of the handrail is between one and one quarter (1 1/4) and one and a half (1 1/2) inches, in compliance with ADA Standards §§ 4.1.3(1) and 4.26.2.

f. Modify or replace the right side handrail on the ramp to the “Classroom B” dining area so that the space between the handrail and the wall is exactly one and a half (11/2) inches, in compliance with ADA Standards §§ 4.1.3(1) and 4.26.2.

Bar

g. Modify or replace the handrails on both sides of the ramp to the bar so that they are between 34 and 38 inches above the ramp surface, in compliance with ADA Standards §§ 4.1.3(1) and 4.8.5(5), and so that they extend at least 12 inches beyond the top and bottom of the ramp parallel to the walking surface, in compliance with ADA Standards §§ 4.1.3(1) and 4.8.5(2).

h. Modify or replace the right side handrail on the ramp to the bar so that the space between the handrail and the wall is exactly one and a half (1 1/2) inches, in compliance with ADA Standards §§ 4.1.3(1) and 4.26.2, and so that the gripping surface of the handrail is between one and one quarter (1 1/4) and one and a half (1 1/2) inches, in compliance with ADA Standards §§ 4.1.3(1) and 4.26.2.

Toilet Rooms

i. Mount at least one coat hook on the corridor wall leading to the toilet rooms that is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

j. Adjust the men’s and women’s toilet room doors so that the force required to open them is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(8), 4.1.3(7)(a), and 4.13(11). Compliance with this provision may be achieved by the installation of an automatic door opener/closer.

k. Adjust the maneuvering space at the latch side of the men’s and women’s toilet room doors so that there is at least 18 inches for a forward pull approach, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.

l. Remove the lavatory from within the accessible toilet stall in both the men’s and women’s toilet rooms, so that there is adequate clear floor space at the toilet in the accessible stall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).

m. Remount the toilet paper dispenser in the accessible toilet stall in both the men’s and women’s toilet rooms, so that it is no more than 36 inches from the rear wall to the front edge of the dispenser, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).

n. Modify the rear toilet grab bar in the accessible toilet stall in both the men’s and women’s toilet rooms so that it is 36 inches long, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Figure 30(c).

o. Remount the coat hook on the accessible toilet stall door in both the men’s and women’s toilet rooms, so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

p. Remount the mirror in both the men’s and women’s toilet rooms so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.6, and 4.22.6.

McGUFFEY’S 248

Parking

q. Restripe the parking lot so that the four designated parking spaces are on the shortest accessible route of travel from adjacent parking to the main entrance, in compliance with ADA Standards §§ 4.1.2(5) and 4.6.2; and so that they are all level with surface slopes not exceeding 1:50 in all directions and are all at least 96 inches wide, in compliance with ADA Standards §§ 4.1.2(5)(a) and 4.6.3.

r. Ensure that all accessible parking spaces are so designated by signage complying with ADA Standards §§ 4.1.2(5) and 4.6.4.

Motor Coach Entrance

s. Modify the ramp up to the motor coach entrance so that it has a slope of no more than 1:12, and so that the cross slope of the ramp is no more than 1:50, in compliance with ADA Standards §§ 4.1.2(1), 4.1.3(8)(a)(ii), 4.3.7, and 4.8.2.

t. Provide a level maneuvering space in front of the motor coach entrance door, in compliance with ADA Standards §§ 4.1.3(7)(a), 4.1.3(8)(a)(ii), and 4.13.6.

Dining Area

u. Provide four (4) accessible booths, or 5% of the 70 booths in the restaurant. Such booths shall be constructed with a knee clearance at least 30 inches wide, at least 19 inches deep, and shall be adjacent to clear floor space connected to an accessible route at least 36 inches wide, in compliance with ADA Standards §§ 4.1.3(18), 4.32.2, 4.32.3, 4.2.4.2, and Figure 45. Compliance with this provision may be achieved by replacing some fixed booth seating with non-fixed seating. The accessible booths shall be distributed throughout the restaurant, including the bar, in compliance with ADA Standards § 5.1

Corridor

v. Mount at least one coat hook on the corridor wall across from the “Classroom A” dining room that is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

Toilet Rooms

w. Adjust each of the men’s and women’s toilet rooms doors so that the force required to open them is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(8), 4.1.3(7)(a), and 4.13(11). Compliance with this provision may be achieved by the installation of an automatic door opener/closer.

x. Reinstall the toilet in the accessible stall in each of the mens’ and women’s toilet rooms so that the centerline is exactly 18 inches from the wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).

y. Remount the toilet paper dispenser in the accessible stall in each of the men’s and women’s toilet rooms so that it is no more than 36 inches from the rear wall to the front edge of the dispenser, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).

z. Remount the coat hook on the accessible toilet stall door in each of the men’s and women’s toilet rooms so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

aa. Remount at least one lavatory not located in the accessible stall in each of the men’s and women’s toilet rooms so that the bottom of the lavatory apron is at least 29 inches above the finish floor, and so that the knee space under the lavatory is at least 27 inches at a dept of 8 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.

bb. Ensure that the accessible paper towel dispenser at the lavatory not located in the accessible stall in each of the men’s and women’s toilet rooms is stocked at all times, in compliance with 28 C.F.R. § 36.211.

cc. Install a visual alarm in each of the men’s and women’s toilet rooms, in compliance with ADA Standards §§ 4.1.3(14) and 4.28.3.

dd. Provide at least 48 inches of maneuvering space perpendicular to the men’s toilet room door at the hostess area, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.

ee. Provide at least 60 inches of maneuvering space perpendicular to the women’s toilet room door across from the “Classroom B” dining room, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.

ff. Provide at least 18 inches of maneuvering space at the latch side of the men’s toilet room door across from the “Classroom B” dining room, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.

gg. Remount the mirrors in the men’s and women’s toilet rooms across from the “Classroom B” dining room so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.6, and 4.22.6.

hh. Remount the rear and side grab bars in the accessible toilet stall in the women’s toilet room across from the “Classroom B” dining room, so that they are between 33 and 36 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and Figures 30(c) and 30(d).

ii. Reinstall the urinal in the men’s toilet room across from the “Classroom B” dining room, so that the urinal rim is no more than 17 inches above the finish floor, and the urinal flush is no more than 44 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.

McGUFFEY’S FALLS

Parking

jj. Make every effort to negotiate with J.W. Franklin, Co., owner of The Falls Shopping Center, so that signage that cannot be obscured by a vehicle parked in the designated accessible parking spaces adjacent to the restaurant is installed, and so that at least one of the parking spaces adjacent to the restaurant is designated as van accessible, in compliance with ADA Standards §§ 4.1.2(5)(a), (b), and 4.6.3.

Entrance

kk. Modify the main entrance door so that the clear opening width of at least one leaf is at least 32 inches, in compliance with ADA Standards §§ 4.1.3(7)(a), 4.13.4, and 4.13.5. As an alternative, McGuffey’s may install an automatic door opener at the interior and exterior of the main entrance door that opens both leaves at the same time.

ll. Ensure that a ramp is installed at the main entrance door threshold, in compliance with ADA Standards §§ 4.3.8 and 4.8.

Dining Area

mm. Provide two (2) accessible booths, or 5% of the 35 booths in the restaurant. Such booths shall be constructed with a knee clearance at least 30 inches wide, at least 19 inches deep, and shall be adjacent to clear floor space connected to an accessible route at least 36 inches wide, in compliance with ADA Standards §§ 4.1.3(18), 4.32.2, 4.32.3, 4.2.4.2, and Figure 45. Compliance with this provision may be achieved by replacing some fixed booth seating with non-fixed seating. One accessible booth shall be provided in the restaurant and one accessible booth shall be provided in the bar, in compliance with ADA Standards § 5.1.

Toilet Rooms

nn. Adjust the men’s and women’s toilet room doors so that the force required to open them is no more than 5 lbf, in compliance with ADA Standards §§ 4.1.3(8), 4.1.3(7)(a), and 4.13(11). Compliance with this provision may be achieved by the installation of an automatic door opener/closer.

oo. Reinstall the toilet in the accessible stall in the mens’ and women’s toilet rooms so that the centerline is exactly 18 inches from the wall, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(a).

pp. Remount the toilet paper dispenser in the accessible stall in the men’s and women’s toilet rooms so that it is no more than 36 inches from the rear wall to the front edge of the dispenser, in compliance with ADA Standards §§ 4.1.3(11), 4.17.3, 4.22.4, and Figure 30(d).

qq. Modify the rear toilet grab bar in the accessible stall in the men’s and women’s toilet rooms so that the clearance between the grab bar and the wall is exactly one and a half (1 1/2) inches, in compliance with ADA Standards §§ 4.1.3(11), 4.17.6, 4.22.4, and 4.26.2.

rr. Remount the coat hook on the accessible toilet stall door in the men’s and women’s toilet rooms so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.

ss. Remount at least one lavatory not located in the accessible stall in both the men’s and women’s toilet rooms so that the bottom of the lavatory apron is at least 29 inches above the finish floor, and so that the knee space under the lavatory is at least 27 inches at a depth of 8 inches, in compliance with ADA Standards §§ 4.1.3(11), 4.19.2, 4.22.6, and Figure 31.

tt. Provide at least 18 inches of maneuvering space at the latch side of the men’s toilet room door, in compliance with ADA Standards §§ 4.1.3(7), 4.13.6, and Figure 25.

7. All steps taken to correct the violations of the ADA Standards at McGuffey’s 76 and McGuffey’s Falls, and to remove the architectural barriers at McGuffey’s 248, as enumerated above, shall be completed within 120 days of the Department’s approval of McGuffey’s proposed plans and specifications. Any modifications performed without approval of the Department that do not strictly comply with the ADA Standards must be redone within 30 days of the Department’s objections.

8. Within 240 days of the effective date of this Settlement Agreement, McGuffey’s shall certify to the Department, in writing, that it has fulfilled all of its obligations under the Agreement. The certification shall set out each of the obligations that has matured by the date of the certification, and shall describe the steps McGuffey’s has taken to fulfill these obligations. The certification shall also identify all continuing obligations under this Agreement, and describe how McGuffey’s will meet those obligations. McGuffey’s will allow representatives of the Department access to its restaurants so that the Department may monitor compliance with the certification and this Agreement.

9. In the event that McGuffey’s is required to obtain, for any of the steps to remove barriers to access specified in this Agreement, any building, mechanical, electrical, plumbing or other permit or approval, McGuffey’s 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 McGuffey’s for obtaining the permit or approval, or is denied, McGuffey’s shall promptly notify counsel for the Department. 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.

10. Within 30 days of the effective date of this Agreement, McGuffey’s shall prominently post the attached “Notice” at McGuffey’s 76, McGuffey’s 248, and McGuffey’s Falls. Copies of the Notice will also be made available to any individual upon request.

11. The United States alleges that aspects of McGuffey’s 76 and McGuffey’s Falls other than those designated to be corrected in ¶ 7 above also violate the ADA Standards for new construction and alterations. The United States also alleges that McGuffey’s 248 contains architectural barriers other than those designated to be remedied by ¶ 7 above. The United States has chosen not to address these issues in this Agreement. Should removal of any architectural barriers become readily achievable in the future, McGuffey’s is urged to remove these barriers.

12. In consideration of the promises made in ¶¶ 6 through 10 above, the Department agrees to close the investigation of Matter Number 202-43-25 and to refrain from bringing a civil action against McGuffey’s.

ENFORCEMENT

13. The Department may review compliance with this Settlement Agreement at any time. If the Department believes that McGuffey’s has violated this Agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from McGuffey’s. If the parties are not able to reach an amicable resolution of the matter, the Department may file a civil action to enforce the Agreement in federal district court. If the court makes a determination of a violation of this Agreement, such failure to comply shall be treated as a violation of the ADA, and the Department may seek all remedies provided in 42 U.S.C. § 12188. As part of such remedies, the United States may seek a civil penalty as specifically provided in 42 U.S.C. § 12188(b)(2)(C)(ii).

14. Failure by the Department to seek enforcement of this Settlement Agreement with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of this Agreement.

IMPLEMENTATION

15. This Settlement Agreement resolves all issues raised in Department of Justice Matter Number 202-43-25. It is limited to those issues and does not address McGuffey’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 McGuffey’s. This Agreement is final and binding on all parties to this action, including all principals, agents, and successors in interest of McGuffey’s, as well as any person acting in concert with McGuffey’s, and McGuffey’s has a duty to so notify all such principals, agents, and successors. This Agreement constitutes the entire agreement between the parties relating to this action, 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 Agreement shall be enforceable.

16. This Settlement Agreement is a public document. A copy of this document, or any information concerning its contents, may be made available to any person.

17. The person signing this document for McGuffey’s represents that he is authorized to bind McGuffey’s to this Agreement.

18. Any notice required to be given pursuant to this Settlement Agreement shall be sent by certified mail, return receipt requested, to the parties at the following addresses:

a. If by McGuffey’s to the Department, to:

John L. Wodatch
Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

with a copy to:

Lewis Bossing
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

b. If by the Department to McGuffey’s, to:

George M. Hill
Chief Executive Officer
McGuffey’s Restaurants, Inc.
13 Kenilworth Knoll
Asheville, North Carolina 28805

19. The effective date of this Agreement is the date of the last signature below.

20. This Agreement will remain in effect for five years from its effective date.

Agreed and Consented to:

FOR MCGUFFEY'S RESTAURANTS, INC.	FOR UNITED STATES OF AMERICA
__________________________ George M. Hill Chief Executive Officer McGuffey's Restaurants, Inc. 13 Kenilworth Knoll Asheville, North Carolina 28805 (828) 252-3300 Date       8/16/02	RALPH F. BOYD, JR. Assistant Attorney General Civil Rights Division By:__________________________ JOHN L. WODATCH, Chief L. Irene Bowen, Deputy Chief Lewis Bossing, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305-8710 Date       9/6/02

---

ATTACHMENT

NOTICE

UNDER THE

AMERICANS WITH

DISABILITIES ACT

This notice is posted pursuant to an agreement between the U. S. Department of Justice and McGuffey’s Restaurants, Inc.

The Americans with Disabilities Act of 1990 (ADA) is a Federal civil rights law. It gives Federal civil rights protections to individuals with disabilities similar to those provided to individuals on the bases of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities to participate in State and local government services, enjoy places of public accommodation, to gain and advance in employment, and have access to transportation and telecommunications.

The ADA identifies and prohibits actions that discriminate against people with disabilities. These include actions that exclude people or treat them unequally or separately from persons without disabilities. The law also requires public accommodations to remove architectural barriers to access where removal of such barriers is readily achievable. Further information about the Americans with Disabilities Act can be obtained by calling the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-833-610-1264(TDD).

McGuffey’s Restaurants, Inc., affirms its commitment to comply with the ADA. McGuffey’s will not discriminate against any individual on the basis of disability in the full and equal enjoyment of its services and products. Any individual with a disability who requires assistance in accessing the services of this McGuffey’s restaurant should contact ___________________.

17, 2002