SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
RAINFOREST CAFÉ, INC.
UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990
DJ #202-48-245

I. INTRODUCTION

1. This Agreement (“Agreement”) is made and entered into by the United States of America (“United States”) and Rainforest Café, Inc. (the “Company”), owner and operator of the Rainforest Café restaurant at 2201 Boardwalk, Atlantic City, New Jersey (“Rainforest Café”) (collectively “the Parties”).  The Rainforest Café is located within the Trump Plaza Hotel Casino, which was a multi use facility located at Mississippi Avenue at Boardwalk, Atlantic City, New Jersey 08401.  This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the “Department”) of the Rainforest Café under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (“ADA”). 
2. On February 16, 2011, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States Attorney's Office for the District of New Jersey commenced a compliance review of certain casino/hotels in Atlantic City, New Jersey to determine whether these casino/hotels are operating in compliance with title III of the ADA (the “Compliance Review”).  The Department conducted a site visit of Trump Plaza’s facilities, including the Rainforest Café, from October 1-4, 2012.

II. APPLICATION

3. The Company is a public accommodation because it is a private entity that owns, leases (or leases to), or operates a place of public accommodation.  42 U.S.C. §§ 12181(6), (7); 28 C.F.R. § 36.104.  Accordingly, the Company is subject to the requirements of title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulations, which are found at 28 C.F.R. part 36.
4. Alterations that affect usability are subject to the alterations requirements of the ADA and shall comply with 28 C.F.R. § 36.402 “to the maximum extent feasible.”  The phrase “to the maximum extent feasible” applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration.  See 28 C.F.R. § 36.402(c).  The 1995 alteration of the space where where the Rainforest Café is situated, is an alteration subject to the alterations requirements of the ADA.  See 28 C.F.R. § 36.406(a); 1991 Standards for Accessible Design (“the 1991 Standards”) § 4.1.6.  The analysis as to whether the Rainforest Café is in compliance with the ADA is based upon the 1991 Standards.  
5. On March 15, 2011, the revised ADA title III regulation became effective, including revised ADA Standards for Accessible Design (the “2010 Standards”).  The effective date of the 2010 Standards, generally, was March 15, 2012.  The 2010 Standards are used to determine the remedial actions the Rainforest Café must take.  See 28 C.F.R. § 36.406(a)(5).  The revised ADA title III regulation and the 2010 Standards contain new requirements for elements in existing facilities that were not addressed in the 1991 Standards.  See 28 C.F.R. § 36.304 (d)(2)(iii).
6. Title III requires that a public accommodation ensure that individuals with disabilities are provided an equal opportunity to participate in, or benefit from, its goods and services. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(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.  A public accommodation must also remove architectural barriers in existing facilities where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.  42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304.  Moreover, a public accommodation must maintain in operable working condition those features of its facilities that are required to be accessible.  28 C.F.R. § 36.211(a).

III. FINDINGS BY THE DEPARTMENT

7. During the course of the Compliance Review, the Department found the following violations of the 1991 Standards at the Rainforest Café:

a. Women's and Men's Toilet Rooms within the Rainforest Café

i. The space between the side grab bar and the toilet paper dispenser in the designated accessible standard stall is 6 inches to the leading edge of the toilet paper dispenser. 1991 Standards § 4.26.2, Fig. 39; 2010 Standards § 609.3, Fig. 609.3(a).

ii. The centerline of the toilet in the designated accessible stall in the men's toilet room is 19½ inches from the side wall. The centerline of the toilet in the designated accessible stall in the women's toilet room is 19 inches from the side wall 1991 Standards § 4.17.3, Fig. 30(a); 2010 Standards § 604.2.

iii. The toilet seat cover dispenser is mounted on the wall behind the toilet in the designated accessible stall in each of these toilet rooms. Therefore, the clear floor space required adjacent to it is blocked by the toilet. 1991 Standards §§ 4.22.7, 4.27; 2010 Standards §§ 205, 309.

b. Sales and Service Counter in the Rainforest Café Gift Shop

i. The cash register counter in the gift shop portion of the Rainforest Café provides a front approach with an otherwise compliant (with the 2010 Standards) lowered portion of the sales and service counter. However, the clear knee space required under the front approach portion was obstructed by baskets of merchandise during the site visit. 2010 Standards § 227.3; 28 C.F.R. § 36.211.

IV. TERMS OF AGREEMENT

8. In order to avoid potential litigation, the Parties agree to the terms of this Settlement Agreement.  These terms are intended to redress the alleged violations of the ADA that have been identified by the Department.
9. Within three months of the effective date of this Agreement, the Company agrees to correct each violation identified above, to the extent the violation has not already been remedied.  Within fourteen days after the violations have been corrected, the Company shall notify the Department.
10. Within three months of the effective date of this Agreement, the Company shall provide training on Title III of the ADA, specifically that Title III of the ADA prohibits the Company from placing objects, including baskets and merchandise, within the required knee and toe space of the compliant front approach lowered portion of the sales and service counter.  Within fourteen days after the training, the Company shall provide the Department with an attendance sheet indicating which employees attended the training, their titles, and when the training occurred.

V. IMPLEMENTATION AND ENFORCEMENT

11. The Department shall have the right, during the term of this Agreement and with reasonable prior notice to the Company of not less than twenty-one days, to conduct inspections of the Rainforest Café’s facilities and to request information, documents, or photographs in order to evaluate compliance with this Agreement.  The Department shall make every effort to conduct its inspections at times that are agreeable to the Company, so that the Company can ensure minimal disruption to its operations from such inspections.
12. If the Department believes that the Company is not in compliance with this Agreement or any requirements contained herein, the Department agrees to notify the Company in writing of the alleged noncompliance and attempt to seek a resolution of the matter.  If the Parties are unable to reach a resolution within thirty business days of the date of the Department’s written notification, and the alleged noncompliance concerns element(s) of the facility in existence as of the effective date of this Agreement as referenced on Attachment A, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of New Jersey.  If the Parties are unable to reach a resolution within thirty business days of the date of the Department’s written notification, and the alleged noncompliance concerns new elements or facilities not in existence as of the effective date of this Agreement, the United States may seek enforcement of the terms of this Agreement, and/or to enforce compliance with the ADA, in the United States District Court for the District of New Jersey.  In the event the court determines that the Company has failed to make a modification required pursuant to this Agreement, including Attachment A, on or before the deadline set forth in Paragraphs 12, 18, and 19, such failure to comply shall be treated as a second violation of Title III of the ADA and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C).  In the event that the United States files suit to enforce compliance with the ADA, as distinguished from compliance with the terms of this Agreement, nothing in this Agreement shall be construed as a waiver of any of the Company’s defenses to an action under the ADA.
13. In consideration of, and consistent with, all the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation into and from filing a civil suit regarding all matters contained within this Agreement and its attachments, except as provided in Paragraph 22.
14. The Department’s failure to enforce this entire Agreement or any provision hereof, 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.
15. This Agreement shall be binding upon the Company, its agents, and employees.  In the event the Company seeks to transfer or assign all or part of its interests in the Rainforest Café, as a condition of sale, the Company shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
16. All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):

For the Company:

Steven L. Scheinthal
Rainforest Café, Inc.
1510 West Loop S
Houston, TX 77027

For the United States:

Michael E. Campion
Assistant U.S. Attorney
United States Attorney's Office
970 Broad Street, Suite 700
Newark, NJ 07102
Tel: (973) 645-3141
Fax: (973) 297-2010

17. This Agreement constitutes the entire Agreement between the Parties relating to Department of Justice Investigation No. 202-48-245 with respect to the Department’s review of the Rainforest Café in Atlantic City, New Jersey and no other statement, promise, or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written Agreement shall be enforceable.
18. 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 Department and the Company shall engage in good faith negotiations 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.
19. This Agreement is limited to the Rainforest Café restaurant in Atlantic City, New Jersey, and does not apply to any other design or construction project of, or related to, the Company.  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. This Agreement does not affect the Company’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
20. A signatory to this document in a representative capacity for the Company represents that he or she is authorized to bind the Company to this Agreement.
21. The effective date of this Agreement is the date of the last signature below.  The Agreement shall remain in effect for thirty-six months from the effective date, unless extended by written agreement of the Parties.

 

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