SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA,
PACIFIC GATEWAY, LTD., AND MARRIOTT INTERNATIONAL, INC.
UNDER THEAMERICANS WITH DISABILITIES ACT OF 1990

DJ #202-12-109

BACKGROUND AND JURISDICTION

1. This Settlement Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”), on the one hand, and Pacific Gateway, Ltd. (“PGL”) and Marriott International, Inc. (“Marriott”), on the other hand. The United States, PGL, and Marriott shall be referred to collectively as the “Parties.”
2. This Agreement resolves an investigation and compliance review conducted by the United States of the San Diego Marriott Marquis & Marina (the “Hotel”) under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (the “ADA”). The Hotel is located at 333 West Harbor Drive, San Diego, California 92101, owned by Pacific Gateway, Ltd., a subsidiary of Host Hotels & Resorts, L.P., and operated by Marriott pursuant to a management agreement between Pacific Gateway, Ltd. and Marriott.
3. At the time of the United States’ inspection of the Hotel, it had 704 rooms with one king-sized bed, 602 rooms with two double beds, 38 bay suites, 14 hospitality suites, and four presidential suites, for a total of 1,362 rooms. The Hotel also has a pool, sauna, hot tub, marina, fitness center, business center, conference center, restaurant, and parking. Since the inspection, the Hotel has begun a renovation project that includes alterations to all of its guest rooms, the pool area, the lobby, and other common areas.
4. The United States commenced this matter upon receiving a complaint alleging a violation of Title III of the ADA. According to the complaint, in August 2008 the complainant and his wife, who had multiple sclerosis and used a wheelchair, reserved a hotel room at the San Diego Marriott Marquis & Marina using the Hotel’s website.¹ Although the Hotel’s website allows guests to choose between a room with one king-sized bed and a room with two double beds when making a reservation, the website does not provide the same choice for someone who wishes to reserve an accessible room; the website only allows a reservation for an “accessible room.” Complainant and his wife reserved an accessible room and noted that there would be four people staying in the room since their son and daughter-in-law were traveling with them. Upon arriving at the Hotel on August 26, 2008, complainant explained that they had a reservation for an accessible room and that they wanted to make sure that the accessible room had two double beds. According to the complainant, the on-duty manager informed them that the Hotel could not place them into an accessible room with two beds because the Hotel only has accessible rooms with one bed. They then asked the manager to provide an accessible hotel room with one bed, for which they would pay full price, and a second hotel room at no charge on account of the lack of accessible guest room options. The manager refused their request. When the complainant requested to see the Hotel’s disability rights policy, the manager told him that no such policy existed. The manager eventually offered to provide the family with a discount of approximately 55% off the regular rate for the second room. They accepted the manager’s offer and paid the full price of $255.00 per night for two nights for a hotel room designated as accessible, and $139.00 per night for two nights for a second hotel room. With taxes and fees, the complainant paid a total of $983.84 for the family’s stay at the Hotel. According to the complaint, however, when the complainant’s wife reached her hotel room, which was designated as accessible, she noticed that the room was not fully accessible and did not provide, among other things, grab bars next to the toilet. The lack of accessible features in the hotel room prevented her from fully enjoying the room and made it more difficult for her to use the bathroom.
5. The United States investigated the complaint and also initiated a compliance review of the Hotel, pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(i). The United States reviewed information provided by the Hotel and conducted a site visit of the Hotel, which began on November 10, 2009.
6. The Hotel is a place of lodging and is a place of public accommodation. PGL and Marriott are public accommodations because each is a private entity that owns, leases, leases to, or operates a place of public accommodation. 42 U.S.C. §§ 12181(7)(A); 28 C.F.R. § 36.104. Accordingly, PGL and Marriott are subject to the requirements of Title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. Part 36, including the applicable ADA Standards for Accessible Design.
7. The Hotel was designed and constructed for first occupancy prior to January 26, 1992. Among other things, Title III of the ADA requires that PGL remove barriers to access at the Hotel where it is readily achievable to do so, 42 U.S.C. § 12182(b)(2)(A)(iv), and that any altered facilities at the Hotel comply with the requirements of 42 U.S.C. § 12183, which are implemented through 28 C.F.R. Part 36, including the applicable ADA Standards for Accessible Design. The ADA Standards for Accessible Design also serve as a guide to identify barriers to be removed at the Hotel.
8. Title III prohibits public accommodations from discriminating against individuals with disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations being offered. 42 U.S.C. § 12182(a). Title III also requires a public accommodation to make reasonable modifications to its policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. Further, a public accommodation must maintain in operable working condition those features that are required to be accessible. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.211(a).
9. Title III makes it unlawful to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual because of his or her relationship or association to someone with a known disability. 28 C.F.R. § 36.205.

INVESTIGATION AND COMPLIANCE REVIEW

10. In the course of its investigation, the United States identified barriers to access at the Hotel using as a guide the ADA Standards for Accessible Design, 28 C.F.R Part 36, App. A (“1991 Standards”) ^2. Barriers include:

Number and Type of Guest Rooms

1. An insufficient number of accessible rooms among the various classes of sleeping accommodations offered at the Hotel, such as offering only two accessible hotel rooms with two double beds in the entire Hotel and offering no accessible suites, §§ 9.1.2, 9.1.3 & 9.1.4.

Room Dispersion

A lack of dispersion of accessible rooms, §§ 9.1.2 & 9.1.4(1).

Guest Rooms

Many of the guest rooms designated as accessible by the Hotel contain numerous non-compliant features, such as:

(i)   insufficient maneuvering clearances at the inside and outside of guest room entrance doors, § 4.13.6;

(ii)   signs that are noncompliant, §§ 4.1.3(16) & 4.30;

(iii)   bathrooms that do not contain sufficient clear floor space at the water closets and bath/shower units, §§ 4.16.2, 4.20.2 & 4.21.2; and tubs and showers that are dimensionally inadequate, §§ 4.20.3 & 9.1.2, Figs. 57, 33 & 34;

(iv)   no grab bars or compliant grab bars at the water closets and bath/shower units, §§ 4.16.4, 4.20.4 & 4.21.4; and shower shelves and shelves above grab bars that are protruding objects, § 4.2.4;

(v)   the height of lavatory counters exceeds the 1991 Standards, § 4.19.2; water closet heights, distances from centerline to sidewall and flush valves are noncompliant, §§ 4.16.3 & 4.16.5, Figs. 28 & 29; the height of mirrors and exposed pipes do not meet 1991 Standards, §§ 4.19.4 & 4.19.6;

(vi)   the seats for the bath/shower units are nonexistent or noncompliant,  §§ 4.20.3 & 4.21.3;

(vii)   the doorways to the connecting hotel rooms are inaccessible,  §§ 9.2.2(3) & 9.4;

(viii)  the reach range for objects, including shelves, door locks, hooks, dispensers, controls, shower heads, curtain pulls and closet rods, do not comply with the 1991 Standards, §§ 4.2 & 9.2.2;

(ix)   inaccessible hardware on items such as sliding bathroom doors, bathroom faucets, shower heads, curtain pulls, and patio doors, §§ 4.27.4 & 4.19.5; and

(x)    passage around beds and furnishings have insufficient maneuvering clearance, § 9.2.2.

Hallways to Guest Rooms

There are protruding objects in the Hotel hallways, such as hallway lights and exit signs, § 4.4, and there is inadequate clear floor space at amenities such as the ice makers and drink dispensers located on each floor, § 4.2.4.

Dining Areas and Associated Spaces

The dining areas of the Hotel lack compliant features in the following categories: clear floor space, maneuvering clearance, protected piping, and signage, including toilet rooms at Roy’s Restaurant, §§ 36.211, 4.17.2, 4.16.2, 4.17.3, 4.19.3, 4.19.4 & 4.30.

Other Public Areas

The public areas of the Hotel do not comply with the 1991 Standards in the following ways: (i) the counter heights for dining and service areas do not meet the 1991 Standards, § 4.32.4; and (ii) the signage, maneuvering clearance, clear floor space, dispensers, lavatory apron and pipe insulation, stall dimensions, toilet to sidewall dimensions, toilet seat height, toilet flush control, ambulatory stalls, urinals, shower dimensions, reach range, benches and grab bars are non-existent or non-compliant in public toilet rooms and dressing rooms, §§ 4.17.2, 4.16.2, 4.17.3, 4.17.6, 4.19.3, 4.22.4 & 4.30.

Hotel Grounds

The Hotel grounds have handrails, landing dimensions, ramp runs, running slopes and cross slopes, maneuvering clearances (including at the sauna and exit door to tennis courts), platform lift keys, slopes at lift door, hoistway signs at elevator, counter heights, signs, and lockers that do not comply with the 1991 Standards, including at the main entrance, outside of the Marina office, and at parking areas, §§ 36.211, 4.3.7, 4.8.5, 4.8.6 & 4.26.

Parking

There is inadequate accessible parking, as well as noncompliant signage and van signage, access aisles, handrail extensions, slopes, and curb ramps, §§ 4.3.7, 4.8.5, 4.8.6 & 4.26.

11. The United States also identified other violations of Title III and its implementing regulations, including: (1) failing to provide customers wishing to reserve an accessible room with the same choice of bedroom type that nondisabled customers are provided; and (2) failing to make a reasonable modification of policies, practices, and procedures, like providing a second hotel room at no charge when an accessible room with two beds was not available. 42 U.S.C. § 12182(a); 42 U.S.C. § 12182(b)(2)(A)(ii).
12. PGL and Marriott deny the statements contained in Paragraphs 4, 10, and 11 above. PGL and Marriott further deny that they have violated the ADA. This Agreement shall not be construed as an admission of liability or wrongdoing by PGL or Marriott.

TERMS OF AGREEMENT

13. In order to avoid potential litigation, the Parties agree to the terms of this Agreement without any admission of liability by PGL or Marriott. This Agreement does not affect PGL’s and Marriott’s continuing responsibility to comply with all aspects of the ADA. PGL will ensure that any alterations made to the Hotel fully comply with Title III and its implementing regulations.
14. PGL agrees to remove barriers to access at the Hotel as described in Attachment A, in compliance with Title III of the ADA, in the timeframes set forth in Attachment A. PGL further agrees that any alterations to the Hotel since the United States’ November 9, 2009 survey of the Hotel will fully comply with the applicable ADA Standards for Accessible Design pursuant to Title III of the ADA.
15. In order to provide persons with disabilities a range of options equivalent to those available to other persons served by the Hotel, within six months of the effective date of this Agreement, PGL shall provide the number and types of accessible rooms set forth in Attachment B.
16. Within ten months of the effective date of this Agreement, Marriott shall ensure that customers seeking to make a reservation at this Hotel on the web have the option of selecting an accessible room with one king-sized bed, or an accessible room with two double beds, or accessible suites, or rooms for those who are hearing impaired, when making a reservation. Marriott shall honor such selections when taking reservations from and assigning rooms to guests.
17. By June 30, 2011, Marriott shall provide a copy of Attachment B to all personnel at the Hotel who work at the front desk or whose routine job functions require them to interact with persons seeking reservations. This list shall serve as the accessible room reference. 
18. Within six months of the effective date of this Agreement, Marriott shall develop and implement a written Disability Rights Policy for the Hotel that: (1) sets forth and explains the antidiscrimination mandate of title III of the ADA; (2) describes the duty to make reasonable modifications to policies, practices and procedures under the ADA and provides examples of such modifications; and (3) identifies and explains the procedures that employees must follow when responding to requests for reasonable modifications made by persons with disabilities, including ensuring that the person who decides whether to grant or deny the request has received the training identified in Paragraph 20. Marriott shall provide a draft of such Policy to the Department of Justice for review and comment prior to dissemination.
19. Within thirty days of receiving the Department’s comments on the Disability Rights Policy, Marriott shall cause to be disseminated a copy of the Policy to all managers of the Hotel, as well as any employee of the Hotel who takes reservations, checks-in guests, or works at the Front Desk of the Hotel. At least two copies of the Hotel’s Disability Rights Policy shall be available at the Front Desk and shall be furnished to any guest upon request. A sign shall be posted in a prominent location at the front desk stating: “A copy of our Disability Rights Policy is available upon request.” A copy of such Policy shall also be located in each room designated as accessible. A copy of such Policy shall be sent to the United States at the address below within seven days of its dissemination.
20. Within six months of the effective date of this Agreement, Marriott shall provide training on Title III of the ADA to every manager and Front Desk employee at the Hotel, as well as any employees whose routine job functions require them to interact with guests, and any employee at the Hotel who receives, handles, or processes reservations, customer complaints, or requests for reasonable modifications. For all of these employees, the training session shall cover the anti-discrimination provisions of Title III of the ADA; the duty to make reasonable modifications to policies, practices and procedures under the ADA; and the Hotel’s new Disability Rights Policy. Front desk employees and any employees at the Hotel who receive, handle, or process reservations will also receive training on the need to hold accessible rooms for possible use by persons with disabilities until all other rooms in the same price category have been rented, and the classes and types of rooms that the Hotel offers that are designated as accessible. Within fourteen days of the training, Marriott shall provide the United States with an attendance sheet that indicates which employees attended the training, their titles, and when it occurred.
21. Within fifteen days of the effective date of this Agreement, PGL shall provide the United States with a copy of the latest architectural plans (for all the planned renovations to the Hotel) that include all accessible features. Throughout the term of this Agreement, PGL shall provide any new plans that have accessible features or revised architectural plans that have or affect accessible features to the United States as such plans become available. All of the architectural plans provided to the United States shall be provided in their original Autocad 2008 electronic format; however, if the United States identifies any architectural plans that it would like to have in printed form, the United States shall notify PGL, and PGL shall provide the requested architectural plans in printed form within fifteen days of the United States’ request. If, upon its review of the architectural plans, the United States identifies any potential violations of the ADA or its regulations, the United States may request a meeting with PGL to resolve such issues. PGL and the United States shall meet to discuss such issues within 30 days of being notified by the United States of its request for a meeting. The Parties shall endeavor to resolve the United States’ concerns in good faith so as to ensure full compliance with the ADA and its implementing regulations. If after 90 days, PGL refuses to amend its plans to avoid the potential violations identified by the United States, the United States may enforce this Agreement pursuant to Paragraph 25.
22. Within 30 days of the effective date of this Agreement, and in exchange for an executed copy of the Release attached as Attachment C and an executed W-9 form, PGL shall cause a check to be made payable to complainant in the sum of $25,000.00 (twenty-five thousand dollars) in damages to be issued and sent by overnight delivery to complainant. PGL shall provide a copy of the check to the Department of Justice within seven days of sending the check to the complainant.
23. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation of and from filing a civil suit against PGL or Marriott (or any of their subsidiaries) to enforce the ADA regarding all matters contained within this Agreement and its attachments, except as provided for in Paragraph 25.

IMPLEMENTATION AND ENFORCEMENT

24. During the term of this Agreement, PGL and Marriott shall provide periodic reports to the United States regarding their progress with respect to the completion of their respective responsibilities pursuant to Paragraphs 13 to 20 of this Agreement. The first report shall be provided within eight months of the effective date of this Agreement; the second report shall be provided on the one-year anniversary of the effective date of this Agreement; and subsequent reports shall be provided every six months thereafter for the remainder of the Agreement. PGL shall provide the Department with written documentation evidencing their completion of each corrective action required under Paragraph 14 in sufficient detail for the United States to independently confirm that all work has been done in conformance with this Agreement. Such evidence may include, but is not limited to, color photographs, purchase orders, permits, and/or architectural drawings, as necessary. Nothing in this Agreement prohibits engaging an ADA consultant to submit such reports to the United States on their behalf. The United States may inspect the property in order to assess compliance with this Agreement.
25. The United States may review compliance with this Agreement at any time and may enforce this Agreement or file a lawsuit under Title III of the ADA if the United States be­lieves that this Agreement or any requirement thereof has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with PGL and Marriott, and the Parties will attempt to resolve the concern(s) in good faith. If the Parties are unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date the United States provides notice to PGL and Marriott, the United States may institute a civil action in federal district court directly to enforce Title III of the ADA and/or to enforce the terms of this Agreement.
26. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
27. This Agreement constitutes the entire agreement between the Parties relating to Department of Justice No. 202-12-109, and no other statement, promise, or agreement, written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable.
28. This Agreement shall be binding on the United States, PGL, and Marriott. In the event PGL seeks to transfer, sell, or assign all or part of its interest in the Hotel, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale, PGL shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement that has been assumed by PGL for the remaining term of this Agreement. In the event that Marriott ceases to manage the Hotel, PGL or its successor shall cause any subsequent manager of the Hotel to fulfill any remaining obligation assumed by Marriott under this Agreement for the remaining term of this Agreement.
29. All notices, demands, reports, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by email or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing):

For PGL:

Kevin Gallagher, Esq.
Assistant General Counsel
Host Hotels & Resorts, Inc.
6903 Rockledge Drive
Bethesda, MD 20817
Phone: (240) 744-5169
Kevin.Gallagher@hosthotels.com

For Marriott:

Kimberly Shur, Esq.
Vice President and Senior Counsel
Marriott International, Inc.
10400 Fernwood Road
Bethesda, MD 20817
Phone: (301) 380-1909
Kimberly.Shur@marriott.com

A copy of notices to Marriott or PGL will also be sent to:

Minh N. Vu
Seyfarth Shaw LLP
975 F Street, N.W.
Washington, DC 20004
Phone: (202) 828-5337
mvu@seyfarth.com     

For the United States:

Alberto Ruisanchez, Trial Attorney
Disability Rights Section
U.S. Department of Justice
1425 New York Avenue, NW
Suite 4039
Washington, DC 20005
(202) 305-1291
alberto.ruisanchez@usdoj.gov

30. 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 PGL 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.
31. This Agreement is limited to the San Diego Marriott Marquis & Marina. It is limited to the matters described herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
32. A signatory to this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
33. 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.

 

FOR THE UNITED STATES:

THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division

SAMUEL R. BAGENSTOS
Principal Deputy Assistant Attorney General

___________________________
ALLISON NICHOL, Chief
RENEE WOHLENHAUS, Deputy Chief
KATHLEEN WOLFE, Acting Special Legal Counsel
ALBERTO RUISANCHEZ, Acting Deputy Chief
THOMAS FODOR, Architect
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 305-1291 (phone)
(202) 305-9775 (fax)

Date:June 28, 2011

 

FOR PACIFIC GATEWAY, LTD.:

______________________________
By:
Its:
Date:___________________

FOR MARRIOTT INTERNATIONAL, INC.:

______________________________
By:
Its:
Date:___________________