Settlement Agreement | Department of Justice Press Releases
INTRODUCTION
1. This Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”) and New York-New York Hotel & Casino, LLC. (“New York-New York”), a limited liability company formed under the laws of the State of Nevada (“the Parties”).
2. This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the “Department”) of the New York-New York facility under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (the “Act” or the “ADA”).
3. The resolution of this matter through this Agreement serves the Parties’ interests in ensuring that New York-New York continues to make its facility, goods and services readily accessible to and usable by indviduals with disabilities by designing and constructing and altering its facility so as to be readily accessible to and usable by indviduals with disabilities, and by ensuring that individuals with disabilities are provided an equal opportunity to participate in or benefit from the goods and services of New York-New York as that provided to others.
THE PARTIES
4. The Parties to this Agreement are the United States and New York-New York.
NEW YORK-NEW YORK HOTEL & CASINO, LLC.
5. The New York-New York facility is a multi-use facility located at 3790 Las Vegas Boulevard South, Las Vegas, Nevada 89109-4338. The New York-New York facility opened to the public on January 3, 1997.
6. New York-New York is a public accommodation because it is a private entity that owns, leases to, and operates a place of public accommodation. 42 U.S.C. §§ 12181(6), (7) and 28 C.F.R. § 36.104.
7. The New York-New York facility is a place of public accommodation because it is a facility, operated by a private entity, whose operations affect commerce that falls into one or more of the following categories of places of public accommodation: (1) an inn, hotel, motel or other place of lodging; (2) restaurant, bar, or other establishment serving food or drink; (3) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or entertainment; (4) an auditorium, convention center, lecture hall, or other place of public gathering; (5) clothing store or other sales or rental establishment; (6) an amusement park, or other place or recreation; and (7) a health spa, or other place of exercise or recreation. 28 C.F.R. § 36.104.
8. The New York-New York facility is also a commercial facility because it is a facility intended for non-residential use by a private entity whose operations will affect commerce. 42 U.S.C. § 12181(2) and 28 C.F.R. § 36.104.
9. The New York-New York facility was designed and constructed for first occupancy after January 26, 1993. Therefore, the New York-New York facility is a newly constructed facility within the meaning of title III of the ADA, 42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 36.401(a).
10. Accordingly, New York-New York and the New York-New York facility are subject to the requirements of Section 303 of title III of the ADA, 42 U.S.C.
§ 12183, and the implementing regulations, 28 C.F.R. Subpart D, §§ 36.401 through 36.407, including the ADA Standards for Accessible Design (hereinafter “the Standards”), 28 C.F.R. Part 36, App. A.
BACKGROUND
11. This matter was commenced when the Department notified Frank Neal Gaskin, an architect with Gaskin and Bezanski, the company responsible for the initial design of the New York-New York facility, that a title III compliance review of the New York-New York facility had been initiated.
12. The Department of Justice initiated its compliance review pursuant to its authority to conduct reviews of the compliance of entities covered by title III. 42 U.S.C. § 12188(b)(1)(A)(i); 28 C.F.R. § 36.502(c).
13. Between September 1995, and November 1996, entities contracted by New York-New York to design and construct the New York-New York facility provided blueprints, architectural design drawings and specifications of the New York-New York facility to the Department for review. The Department reviewed the blueprints, architectural design drawings and specifications of the parking garage, casino, hotel, assembly, amusement, and site improvement areas, and for certain tenant improvements of the New York-New York facility.
14. The Department reviewed the submitted blueprints, architectural design drawings and specifications in order to determine whether those blueprints, architectural design drawings and specifications complied with the Standards. Set forth as Exhibits A-E are lists of those elements of the blueprints, architectural design drawings and specifications that the Department determined, based on its review of those submitted items, did not comply with the Standards.
AGREEMENT WITH RESPECT TO § 303 OF TITLE III
15. The Parties agree that New York-New York, which currently owns and operates the New York-New York facility, is responsible for ensuring that the New York-New York facility is designed and constructed so as to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 36.401(a)(1).
16. To ensure that the New York-New York facility complies with § 303 of title III and the Standards, New York-New York has retained the services of an ADA consultant to conduct ongoing title III compliance checks of the New York-New York facility. Such compliance checks have included a review of the compliance status of the design elements identified by the Department in Exhibits A-E as being deficient. The Parties agree that the deficiencies in the design elements identified by the Department in Exhibits A-E have been remedied to comply with the Standards since the Department’s review of those elements, or were not implemented during the operational phase of the New York-New York facility, except as expressly set forth in Paragraph 16(a) below.
a. With respect to Exhibit E, § V(A), the Parties agree that when New York-New York engages in alterations to such guestrooms not designated as accessible (as defined in the Standards), it will widen all doors and doorways within all guestrooms not designated as accessible to provide a minimum clear opening width of at least 32 inches as required by § 9.4 of the Standards. As part of its recent renovation of certain guestrooms and public spaces, New York-New York has widened approximately 168 doors to bathrooms in guestrooms not designated as accessible. New York-New York will complete the widening of all other required doors and doorways within five (5) years from the effective date of this Agreement.
b. New York-New York will report annually to the Department, on the anniversary of the Effective Date of this Agreement, regarding its progress with respect to the completion of its responsibilities pursuant to Paragraph 16(a) of this Agreement.
17. The Parties further agree that New York-New York shall continue to ensure that the New York-New York facility complies with § 303 of title III and the Standards by constructing and modifying the New York-New York facility so that every element of the facility complies with § 303 of title III and the Standards. 42 U.S.C. § 12183(a)(2) and 28 C.F.R. §§ 36.402-403. Pursuant to its general obligation of nondiscrimination on the basis of disability under 28 C.F.R. § 36.201(b) and its specific obligations under § 303, New York-New York shall also work with its tenants in meeting their obligations under § 303 of title III and the Standards with regard to their tenant spaces.
MISCELLANEOUS
18. The United States shall have the right, during the course of this Agreement, to conduct periodic inspections of the compliance of the accessibility of the New York-New York facility. Such inspections may only occur after reasonable prior notice has been provided to New York-New York in accordance with Paragraph 25 of this Agreement. The United States shall make every effort to conduct its periodic inspections at times that are agreeable to New York-New York, so that New York-New York can ensure that minimal disruption to its operations results from such inspections. If deficiencies are found with New York-New York’s compliance with the Standards, the United States shall prepare a report identifying all elements of the facility that it determines do not comply with the Standards. On the basis of the United States’ report, the Parties will negotiate in good faith to resolve any issue(s) raised and New York-New York agrees to modify any features or conditions that the Parties agree do not comply with the Standards. New York-New York shall make such modifications within a customary and reasonable time of the date that the United States and New York-New York conduct negotiations.
19. The Attorney General is authorized pursuant to section 308(b)(1)(B) of the Act, 42 U.S.C. § 12188(b)(1)(B), to bring a civil action enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement set forth above, the Attorney General agrees to refrain from taking more formal enforcement action in this matter during the pendency of this Agreement, as long as New York-New York complies with this Agreement. In addition, during the pendency of this Agreement, the Department agrees not to institute any investigation and compliance reviews of the New York-New York facility with respect to § 303 of title III pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i); 28 C.F.R. § 36.502(c). The periodic inspections contemplated in Paragraph 18 above shall not be considered investigation and compliance reviews within the meaning of 42 U.S.C. § 12188(b)(1)(A)(i); 28 C.F.R. § 36.502(c).
20. The Parties agree that nothing contained in this Agreement or its exhibits shall constitute an admission by New York-New York that it has, at any time or in any way, violated the Act. Except as set forth in Paragraph 21, or in the event that New York-New York is found not to be in compliance with the terms of this Agreement and the Parties have exhausted the dispute resolution procedures under this Agreement, the United States shall not institute a civil action enforcing the ADA against New York-New York based upon any of the findings set forth in Exhibits A-E.
21. The Parties recognize that the Attorney General and the Department have an affirmative duty to address complaints received from the public regarding allegations that the New York-New York facility does not comply with the ADA, including § 303 of title III or the Standards. In furtherance of this Agreement, when the Attorney General or the Department receive such complaints, the Department shall notify New York-New York in writing of the nature of the complaints. The Parties shall then make every effort to address such complaints if appropriate through the inspection and facility modification processes outlined in Paragraph 18 above.
21. In the event that the Department seeks enforcement of this Agreement, or any provision of it, in Federal District Court, the Parties agree and hereby stipulate that the United States District Court for the District of Nevada has sole personal and subject matter jurisdiction over this Agreement, the matters set forth in it, and the Parties to it.
22. The Department’s failure to enforce this entire Agreement or any provision in it with regard to any deadline or any other provision contained herein shall not be construed as a waiver by the Department of any right to do so.
23. A copy of this Agreement or any information contained herein shall be made available pursuant to the Freedom of Information Act, 5 U.S.C. § 552.
24. This Agreement shall be binding upon New York-New York and its successors in interest, and New York-New York has a duty to notify all such successors in interest of these obligations and to include in all future documents transferring any right or interest in the facility any obligations to comply with this Agreement not retained by New York-New York.
NOTICE
25. Any notice required or permitted herein shall be given as follows:
a. If by the Department to New York-New York by certified mail, return receipt requested to:
Felix D. Rappaport
President and Chief Operating Officer
New York-New York Hotel & Casino, LLC.
3790 Las Vegas Boulevard South
Las Vegas, Nevada 89109-4338
with a copy to:
Thomas J. Reich, Esq.
Vice President and General Counsel
New York-New York Hotel & Casino, LLC.
3790 Las Vegas Boulevard South
Las Vegas, Nevada 89109-4338
b. If by New York-New York to the Department, by certified mail, return receipt requested to:
John L. Wodatch, Section Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738
with a copy to:
Roberta Stinar Kirkendall
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738
SCOPE OF AGREEMENT
26. This Agreement, including the Exhibits attached hereto, 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. In the event a court of competent jurisdiction concludes that any part of this Agreement is unenforceable, such portion shall be severed from this Agreement and all other portions shall remain enforceable.
27. This Agreement is limited to the compliance requirements set forth in Paragraphs 15 through 17 above, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect New York-New York’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement. This Agreement is limited to the New York-New York facility described in Paragraph 5 above, and does not apply to any other design or construction project of or related to New York-New York.
28. A signatory to this document in a representative capacity for a partnership, corporation, or other such entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
EFFECTIVE DATE/TERMINATION DATE
29. This Agreement shall become effective as of the date of the last signature below, and shall terminate five (5) years thereafter.
FOR THE UNITED STATES:
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
______________________________
JOHN L. WODATCH, Chief
ALLISON J. NICHOL, Deputy Chief
ROBERTA STINAR KIRKENDALL, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738
(202) 307-0663
Date:______________
FOR NEW YORK-NEW YORK
HOTEL & CASINO, LLC:
FELIX D. RAPPAPORT
President and Chief Operating Officer
New York-New York Hotel & Casino, LLC.
________________________________
FELIX D. RAPPAPORT
President and Chief Operating Officer
New York-New York Hotel & Casino, LLC.
3790 Las Vegas Boulevard South
Las Vegas, Nevada 89109-4338
(702) 740-6500
Date:_______________
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December 20, 2001