VOLUNTARY COMPLIANCE AGREEMENT
between
THE UNITED STATES OF AMERICA
and
OPUS 465 and TRESCA

WHEREAS, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., provides, among other things, that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, 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); and

WHEREAS, the term “public accommodation” under the ADA includes “a restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. § 12181(7)(B); and

WHEREAS, existing facilities must comply with the ADA to the maximum extent feasible, unless it is not readily achievable to do so, as defined in the ADA; and

WHEREAS, the ADA authorizes the United States Department of Justice to “undertake periodic reviews of compliance of covered entities,” 42 U.S.C. § 12188(b)(1)(A)(i); and

WHEREAS, the United States Attorney’s Office for the Southern District of New York (the “United States”), pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), commenced an investigation of Opus 465 Restaurant (the “Restaurant”) located at 465 Main Street, Armonk, New York, to determine whether it was operating in compliance with Title III of the ADA (the “Investigation”); and

WHEREAS, as part of the Investigation, the United States requested information from the owners and operators of the Restaurant, with which the owners and operators complied; and

WHEREAS, the United States conducted a limited site inspection of certain features and facilities within the Restaurant, and met with representatives of the Restaurant; and

WHEREAS, the United States and the Restaurant share the goal of resolving the Investigation and ensuring that the Restaurant operates in compliance with Title III of the ADA; and

WHEREAS, in light of the actions taken by the Restaurant to date to comply with the ADA, the actions taken by the Restaurant during the period of the Investigation, and the actions that the Restaurant has agreed to take within the next year as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to the Restaurant as a result of this Investigation;

NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF THE RESTAURANT, AS FOLLOWS:

I. APPLICATION AND PARTIES BOUND

1. The Restaurant is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is “a restaurant, bar, or other establishment serving food or drink.”  42 U.S.C. § 12181(7)(B); see 28 C.F.R. § 36.104.
2. Tresca (the “Owner” and “Operator”) is a public accommodation within the meaning of Title III of the ADA because it owns the Restaurant, a place of public accommodation.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
3. This Agreement shall be binding on the Owner and the Operator, and each of their agents and employees.  In the event the Owner seeks to transfer or assign all or part of their interest in the Restaurant within the term of this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale the Owners shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
4. This Agreement shall apply to all public use areas within the Restaurant.  This includes, but is not limited to: public entrances, waiting areas, bar areas, dining areas, toilet rooms, and corridors.  This Agreement shall not apply to employee work areas, such as food preparation and storage locations, and other service-related areas.

II. DEFINITIONS

5. For purposes of this Agreement, the term “Standards” means the 2010 Standards for Accessible Design (“2010 Standards”), which consist of the 2004 ADA Accessibility Guidelines (“ADAAG”), appendices B and D to 36 C.F.R. Pt. 1191, and the requirements contained in subpart D of 28 C.F.R. Pt. 36, 28 C.F.R. § 36,104.
6. For purposes of this Agreement, the term “accessible” means in compliance with the Standards.
7. For purposes of this Agreement, the term “alterations” means a change to the Restaurant that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, “remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.” See 28 C.F.R. §§ 35.151(b), 36.402.

III. RESERVATIONS AND FOOD ORDERING PROCEDURES

8. The Restaurant shall accept relay calls.  See 28 C.F.R. § 36.303.

IV. MAIN PUBLIC ENTRANCE

9. The Restaurant shall ensure that its alternate entrance at 465 Main Street, Armonk, New York is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. For purposes of this paragraph, the Restaurant may meet its obligations to provide an accessible entrance by maintaining the side ramp leading from the parking lot to the main entrance in the same condition as existed in the course of the Government's inspection on December 20, 2012. The Restaurant shall post signage using the International Symbol of Accessibility at the accessible alternate entrance and directional signage indicating the location of the accessible alternate entrance at the main public entrance.  See 2010 Standards §§ 206.2.1, 216.6, 703.5 and 703.7.2.1.  The Restaurant shall notify the United States, through undersigned counsel, in writing if it makes any alteration of the accessible alternate entrance during the term of this Agreement. 

V. HOST STATION

10. The Restaurant shall ensure that a route from the entrance to the host station and from the host station to the seating area is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility.  See 2010 Standards §§ 206.2.4 and Chapter 4.  Specifically:
1. The Restaurant shall post signage on the door to the right upon entering the vestibule, leading through the bar area, indicating that it is an accessible door. See 1991 Standards §§ 4.1.3 (8), 4.1.3 (7)(a), 4.13.5 & Fig. 24(a).

2. The Restaurant shall add a portion of the host stand that is no higher than 36 inches to accommodate persons with disabilities. See Photo 8. See 1991 Standards § 7.2(1).

VI. DINING AND BAR AREAS

11. The Restaurant shall ensure that 5% of the total number of fixed seating or standing locations in the Restaurant's dining areas is accessible to persons with disabilities, such that 6 seating locations are accessible.  The Restaurant may purchase 3 wheelchair accessible tables to meet the requirements of this paragraph.  Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route.  See 2010 Standards §§ 206.2.4, 226.1, 902 and Chapter 4. The Restaurant shall ensure an accessible route to the main dining room through the bar area.
12. Accessible seating shall be distributed throughout the Restaurant in compliance with the 2010 Standards § 226.2.
13. The Restaurant shall provide accessible seating in the bar area so that 5% of the total number of fixed seating or standing locations in the bar area is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility.  The Restaurant may satisfy the requirements of this paragraph by lowering a portion of the bar to 34 inches maximum above the finish floor, or providing accessible tables in the bar area. The Restaurant shall ensure that bar tables have been modified to be at least 30 inches long and allow for wheelchair seating. See Photo 12. See 28 C.F.R. § 36.302(a); 1991 Standards §§ 5.1, 5.2, 4.1.3(18), 4.32, 4.2.4 & Fig. 45.

VII. RESTROOMS

14. The Restaurant shall ensure that there is an accessible route from each accessible seating location to the single-user unisex restroom. The Restaurant shall post signage identifying the restrooms in raised characters and Braille on the wall adjacent to latch side of the door. See Photo 14. See 1991 Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6. The Restaurant shall purchase and use an accessible door lever, grab bars for the rear and side of the toilet, an accessible sink, and a toilet seat with a minimum height of 17 inches above the floor. See 1991 Standards §§ 4.1.3 (11), 4.13.9, 4.16, 4.16.3, 4.16.4, 4.19.2, 4.22.4, 4.26, Fig. 29, 31, 32. The Restaurant will also ensure that the flush control is moved to the open side of the toilet and the toilet paper dispenser is mounted to the side of the wall adjacent to the toilet. See 1991 Standards § 4.1.3 (11), 4.16.5, 4.22.4, 4.16.4 & Fig. 29(b).
15. The Restaurant shall ensure that, in the Men’s Restroom, there is signage identifying the restrooms in raised characters and Braille on the wall adjacent to latch side of the door.  See 1991 Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6. The Restaurant shall also install a toilet seat with a minimum height of 17 inches above the floor, see 1991 Standard § 4.16, 4.16.3, Fig 29.
16. The Restaurant shall ensure that, in the Women’s Restroom, there is signage identifying the restrooms in raised characters and Braille on the wall adjacent to latch side of the door. See 1991 Standards §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.  The Restaurant shall also install a toilet seat with a minimum height of 17 inches above the floor, see 1991 Standard § 4.16, 4.16.3, Fig 29; lower the mirror to a maximum height of 40 inches above the floor, see 1991 Standards §§ 4.1.3(11), 4.22.6, 4.19.6 and Fig. 31; and remove the coat hooks from the door.

VIII. POLICIES, PRACTICES, AND PROCEDURES

17. The Restaurant shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
18. The Restaurant’s policy shall specify, among other things, that

(a) persons with disabilities may make reservations in the same way and on the same terms that other persons can make reservations (see 28 C.F.R. § 36.302);

(b) all reservation staff (including staff located on-site at the Restaurant and staff located off-site at a reservations center) shall have ready access to information about the Restaurant’s accessibility features for use in assisting customers in making reservations and answering questions (see 28 C.F.R. § 36.302);

(c) accessible features inside and outside the Restaurant must be maintained in good working order (see 28 C.F.R. § 36.302);

(d) parking spaces may be reserved for individuals with disabilities, or in the alternative, valet parking is available (see 2010 Standards § 209.4; 28 C.F.R. § 36.305);

(e) employees will receive basic training on how to accommodate persons with disabilities (e.g., overview of the Restaurant’s accessibility features, dealing with service animals, etc.) (see 28 C.F.R. § 36.302(a));

(f) restaurant staff is to be trained to offer assistance, upon request, to persons with disabilities who may need assistance in using Restaurant services (see 28 C.F.R. § 36.302(a));

(g) Restaurant staff is to be made available to move tables, and provide and adjust accessible features of the facility when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a));

(h) Restaurant menus, and all other printed materials provided for use by patrons, also be available in alternate formats so that blind persons and persons with low vision can read them (alternate formats include Braille, large print, and audio recording) (see 28 C.F.R. § 36.303(b));

(i) dietary information (either on its menus or elsewhere) will be provided for patrons with diabetes or those with food allergies (see 28 C.F.R. § 36.302), on an individual basis by speaking with a server or manager;

(j) special foods will be provided to meet a patron’s dietary needs upon reasonable request (see 28 C.F.R. § 36.307);

(k) persons with disabilities may use service animals, without imposing any extra charges or conditions, in all public areas of the facility, including restrooms (see 28 C.F.R. § 36.302(c)); and

(l) Restaurant employees shall receive training on the proper manner for determining whether an animal qualifies as a service animal (see 28 C.F.R. § 36.302(c)(6)).

IX. ALTERATIONS

19. The Owner and Operator acknowledge and agree that any alteration to the Restaurant “shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” See 28 C.F.R. § 36.402(a).  The Owner and Operator further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of the Restaurant 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 area and the restrooms, telephones, and drinking fountains serving the altered area 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.  See 28 C.F.R. § 36.403(a)(1).  The Owner and Operator agree to notify the United States, in writing, of any alterations to the Restaurant commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.

X. MONITORING AND COMPLIANCE

20. On the anniversary date of the effective date of the Agreement, the Restaurant shall provide to the United States a narrative report of the actions taken during the reporting period to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at the Restaurant and any plans for action concerning ADA compliance in the coming year, if the actions are not completed within the first year.  The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Restaurant was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
21. The Owner and Operator of the Restaurant shall cooperate in good faith with any and all reasonable requests by the United States for access to the Restaurant and for information and documents concerning the Restaurant's compliance with this Agreement and the ADA. 
22. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Restaurant and communications with Restaurant staff.  The United States shall have the right to inspect the facility at any time, and counsel for the United States need not identify themselves in the course of visits to the public areas.

XI. ENFORCEMENT

23. If the United States reasonably believes that this Agreement or any of its requirements has been violated, it will notify the Owner and Operator of the Restaurant in writing and attempt to resolve the issue or issues in good faith.  If the United States and the Owner and Operator of the Restaurant are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.

XII. GENERAL PROVISIONS

24. In consideration for the Restaurant's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Investigation of the Restaurant, except as provided in the Enforcement portion of this Agreement.  The United States reserves the right to investigate any complaint it receives concerning the Restaurant, to initiate future Investigations concerning the Restaurant with respect to any aspect of the Restaurant or its operation not expressly addressed in Parts III through IX of this Agreement, and, if the United States believes a violation has occurred, to investigate and commence a civil action with respect to any violation of the ADA.  In the event the United States receives and investigates an ADA complaint concerning the Restaurant, or commences any future investigation concerning the Restaurant, nothing in this Agreement shall limit the scope of any investigation of the Restaurant or preclude the United States from seeking relief beyond that required under this Agreement.
25. A copy of this Agreement shall be made available to any person upon request.
26.  The Effective Date of this Agreement is the date of the last signature on the Agreement.  The term of this Agreement is one year from the Effective Date, unless the Owner and Operator has not fully complied with the actions set forth herein, in which case it shall be extended until the Owner and Operator is in full compliance or an additional year, whichever is shorter. 
27. This Agreement memorializes the commitments made by the Owner and Operator of the Restaurant to increase accessibility of the Restaurant and the terms under which the United States has agreed to conclude this particular Investigation of the Restaurant without further review or enforcement action.  This Agreement is not intended to certify or signify, however, that the Restaurant is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance or noncompliance with the ADA, or constitute a finding by the United States of such compliance or noncompliance, and it may not be used in any proceeding to signify such compliance or noncompliance.  This Agreement does not affect the Restaurant's continuing responsibility and obligation to comply with all aspects of the ADA.  This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations. 
28. This Agreement does not constitute an admission by the Restaurant of non-compliance with any provision of the ADA.
29. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
30. Failure by the United States to enforce the entire Agreement, with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement during the term of the Agreement.
31. This Agreement constitutes the entire agreement between the parties relating to the Investigation, 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.

 

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