VOLUNTARY COMPLIANCE AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
ORANGE LEAF FROZEN YOGURT-LINDALE CROSSING OF CEDAR RAPIDS, IOWA
DJ# 202 27 118

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, 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 Northern District of Iowa (the "United States"), pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), commenced a limited review of certain restaurants in the Northern District of Iowa to determine, with respect to the specific areas reviewed, whether those restaurants were operating in compliance with Title III of the ADA (the "Compliance Review"); and

WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of Orange Leaf Frozen Yogurt-Lindale Crossing of Cedar Rapids, Iowa (the "Restaurant") located at 4866 1st Ave. N.E., Cedar Rapids, Iowa;

WHEREAS, the United States conducted a 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 Compliance Review 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 Compliance Review, and the actions that the Restaurant has agreed to take within the next three years 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 Compliance Review;

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. 4mgroup, LLC is the Owner (“Owner”), of the Restaurant, a public accommodation within the meaning of Title III of the ADA.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
3. 4mgroup, LLC is the Operator, (“Operator”) of the Restaurant, a public accommodation within the meaning of Title III of the ADA.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
4. 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, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale the Owner shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
5. 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 non-public use areas, such as food preparation and storage locations, employee locker rooms, and other service-related areas.

II. DEFINITIONS

6. For purposes of this Agreement, the term “Standards” means the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 36.104, which consist of the 2004 ADA Accessibility Guidelines and the requirements contained in 28 C.F.R. Part 36, subpart D (“ADAAG”).
7. For purposes of this Agreement, the term “accessible” means in compliance with the Standards.
8. 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. DINING SURFACES

9. No accessible dining surfaces are provided anywhere in the ice cream shop, including the tables and dining bar (providing 33 seating spaces) inside the shop and the 2 tables (with 8 seating spaces) provided on the sidewalk in front of the storefront window accessible.  At least 5 percent of the seating or standing spaces at dining surfaces provided shall provide clear floor space a minimum of 30 inches wide and a minimum of 48 inches deep positioned for a forward wheelchair approach, with knee and toe clearance extending a minimum of 17 inches under the dining surface, and a dining surface 28 inches minimum and 34 inches maximum above the finished floor.  Accessible dining surfaces shall be dispersed throughout the restaurant.  1991 ADA Standards 5.1 with 28 C.F.R. 36.302(a) and 28 C.F.R. 36.304.
10. The hot fudge and hot caramel dispenser pump mechanisms next to the cash register are positioned so they are further than 10” from the edge of the 34” high counter and are higher (at 48”) than the maximum allowable 46” applicable if they are not moved to within 10” of the edge of the counter.  1991 ADA Standards 5.6.

IV. MEN'S SINGLE-USER RESTROON:

11. Men’s Restroom: The single-user Men’s restroom serving this Restaurant has the following barriers:
    1. The bottom of the reflecting surface of the mirror over the lavatory is higher (at 40 3/4”) than the maximum 40 inch height allowed.  1991 ADA Standards 4.19.6.
    2. The closer on the restroom door is adjusted to be too heavy (at 12 lbf.) in violation of 1991 ADA Standards 4.13.11.
    3. The toilet is centered further (at 20 ¼”) than 18” from the side wall – provide a 2 ½” thick by 12” high spacer element upon which the side grab bar will be remounted per ADA Standards with at least 8” provided above the top of the gripping surface of the side grab bar.  Additionally, the flush valve on the tank style toilet is not mounted on wide side of the toilet.  1991 ADA Standards 4.16.4 & 4.16.5.
    4. The coat hook on the back of the entry door is mounted higher (at approx. 60”) than the maximum 54” allowed. 1991 ADA Standards 4.16.4.

V. WOMEN'S SINGLE-USER RESTROOM

12. Women's Restroom: The single-user Women's restroom serving this Restaurant has the following barriers:
    1. The bottom of the reflecting surface of the mirror over the lavatory is higher (at 40 3/4”) than the maximum 40 inch height allowed.  1991 ADA Standards 4.19.6.
    2. The closer on the restroom door is adjusted to be too heavy (at 12 lbf.) and closes faster (at 2 seconds) than the minimum required 3 seconds and is in violation. 1991 ADA Standards 4.13.11 and 4.13.10.
    3. The coat hook on the back of the entry door is mounted higher (at approx. 60”) than the maximum 54” allowed. 1991 ADA Standards 4.16.4.

VI. POLICIES, PRACTICES AND PROCEDURES

13. The Restaurant shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
14. The Restaurant's policy shall specify, among other things, that
    1. This section revised based on representations by Restaurant that requirements concerning reservations are not applicable to this entity.
       (see 28 C.F.R. § 36.302);
    2. This section revised based on representations by Restaurant that requirements concerning reservations are not applicable to this entity.
       (see 28 C.F.R. § 36.302));
    3. accessible features inside and outside the Restaurant must be maintained in good working order (see 28 C.F.R. § 36.302);
    4. 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);
    5. 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));
    6. 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));
    7. 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));
    8. 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));
       (In the alternative and per the request of Restaurant, the menu may also be read to patrons.)
    9. 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);
    10. The restaurant shall order accessible or special goods at the request of an individual with a disability or disabilities, if, in the normal course of its operation, it orders accessible or special goods at the request of an individual who does not have disabilities.  (see 28 C.F.R. § 36.307);
    11. 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
    12. 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)).

VII. ADDITIONAL MEASURES TO INCREASE AVAILABILITY

15. 15. As part of its hospitality training for all employees, Orange Leaf does address and stress the need for accommodating guests within all reasonable efforts.

VIII. ALTERATIONS

16. 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.

IX. MONITORING AND COMPLIANCE

17. Every year during the term of this Agreement 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.  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.
18. 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.
19. 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.

ENFORCEMENT

20. If the United States 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 Northern District of Iowa to enforce the terms of this Agreement and/or the ADA.

XI. GENERAL PROVISIONS

21. In consideration for the Restaurant's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review 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 compliance reviews concerning the Restaurant with respect to any aspect of the Restaurant or its operation not expressly addressed in Parts III through X of this Agreement, and 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 compliance review concerning the Restaurant, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Restaurant or preclude the United States from seeking relief beyond that required under this Agreement.
22. This document, and all information contained in it are public. The parties will provide a copy of this Agreement to any person upon request. This document may be posted on the Department's website.
23. The Effective Date of this Agreement is the date of the last signature on the Agreement.  The term of this Agreement is three years from the Effective Date.
24. 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 Compliance Review 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 with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance.  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.
25. This Agreement does not constitute an admission by the Restaurant of non-compliance with any provision of the ADA.
26. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
27. 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.
28. This Agreement constitutes the entire agreement between the parties relating to the compliance review, 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.