I. INTRODUCTION
- This Agreement (“Agreement”) is made and entered into by the United States of America (“United States”) and DGMB Casino, LLC (the “Company”), owner and operator of the Resorts Casino Hotel (“Resorts”) (collectively “the Parties”).
- This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the “Department”) of the Resorts Casino Hotel (“Resorts”) under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (“ADA”). Resorts is a multiuse facility located at 1133 Boardwalk, Atlantic City, New Jersey 08401-7329. The Company became the owner and operator of Resorts on December 7, 2010.
- Resorts consists of a casino and a hotel with a total of 942 guest rooms contained in two connecting towers. The original tower, referred to as the Ocean Tower, was built in 1926 and contains 480 rooms/suites. In 2004, Resorts added a 27-story tower, referred to as the Rendezvous Tower, which contains 462 guest rooms/suites. Resorts also contains numerous restaurants and bars, a ballroom, a theater, multiple meeting and convention rooms, and several specialty retail shops.
- 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 reviewed information provided by the Company and conducted a four-day site visit of Resorts’ facilities from September 17 - 20, 2012.
II. APPLICATION
- 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, and its implementing regulations, which are found at 28 C.F.R. part 36.
- Part of the Resorts facility was built in 1926; it was altered to accommodate the casino in 1978. Resorts, therefore, is an existing facility designed and constructed prior to January 26, 1993, subject to the barrier removal requirements of title III of the ADA and 28 C.F.R. § 36.304, except where to do so would not be readily achievable. Alterations to Resorts 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). In 2004, Resorts added the Rendezvous Tower; therefore, this addition shall be regarded as an alteration. See 28 C.F.R. § 36.406(a); 1991 Standards for Accessible Design (“1991 Standards”) § 4.1.5. The analysis as to whether the Company is in compliance with the ADA is based, for the most part, upon the 1991 Standards.
- On March 15, 2011, the revised ADA title III regulation became effective, including revised ADA Standards for Accessible Design ( “2010 Standards”). The effective date of the 2010 Standards, generally, was March 15, 2012. The compliance date for §§ 242 and 1009 of the 2010 Standards, with respect to the provision of accessible entry and exit to existing swimming pools, wading pools, and spas (those built before March 15, 2012) was extended to January 31, 2013. See 28 C.F.R. § 36.104 (which defines the 2010 Standards as the requirements set forth in appendices B and D to 36 C.F.R. part 1191 and the requirements contained in subpart D of 28 C.F.R. part 36). The 2010 Standards are used to determine the remedial actions the Company 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. These requirements include recreational facilities found at Resorts, such as spas, hot tubs, saunas, exercise machines, and a swimming pool. These elements must be modified to the extent readily achievable to comply with the 2010 Standards. See 28 C.F.R. § 36.304 (d)(2)(iii).
- Title III requires a public accommodation to ensure that, to the maximum extent feasible, the altered portions of a facility are readily accessible to and usable by individuals with disabilities to provide them with 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); 36.402(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
- During the course of the Compliance Review, the Department found violations of the 1991 Standards, which are listed in Attachment A to this Agreement. Some of the Department’s more significant findings include the following:
A. Parking
- Self-Park Garage
- Lacks the required access aisles at all designated accessible parking spaces
- None of the designated accessible spaces comply with the requirements for van accessibility, including access aisle width, signage, and vertical clearance (beyond the ground level)
- Employee Parking
- None of the designated accessible spaces comply with the requirements for van accessibility because of a steep cross-slope and the lack of van accessible signage
- The “standard” accessible parking space lacks the required access aisle
B. Public Toilet Rooms
- Not all toilet seats are mounted at a compliant height
- Not all designated accessible toilets are located at a compliant distance from the side wall
- Some toilet flush controls are mounted on the narrow side of the toilet
- Some toilet rooms lack an accessible route into the designated accessible toilet stall
- Most toilet rooms lack the required ambulatory accessible stall
- Not all lavatories have adequate clearance and/or clear floor space
- Many lavatories have exposed hot water and drain pipes
- Various dispensers are mounted at a noncompliant height or are obstructed by objects
- All toilet rooms lack permanent signage identifying them in raised characters and Braille on the wall adjacent to the latch side of the entrance
C. Restaurants, Clubs, and Bars
Bar One (formerly known as the 25 Hours Bar)
- No accessible bar counter
- No accessible tables in the area near the bar
D. Guest Rooms and Suites
In the suites or rooms designated as accessible:
- Not all guest room entry doors have adequate pull side maneuvering clearance
- Many controls and operating mechanisms, such as drapery pulls, storage hooks, tissue dispensers, and thermostats, are not located within required reach ranges or are otherwise inaccessible
- Not all shower stalls have compliant seating, shower heads, or adequate dimensions
- Not all bathtubs have accessible controls, seats, and grab bars
- Not all toilets are fully configured in accordance with the 1991 Standards (e.g., flush controls, grab bars)
- Not all lavatories have insulated pipes
- Walk-in closets lack sufficient clear opening width
- Closet rods and shelves are mounted at an inaccessible height
- Closet knob hardware is inaccessible
- The Department also identified other violations of title III of the ADA and its implementing regulations, in accordance with the provisions identified in paragraph 9, above. For example, the Department found that the Company did not provide an opportunity for potential guests to reserve accessible guest rooms and suites on Resorts’ website, even though potential guests, without disabilities, can reserve other guest rooms and suites on Resorts’ website.
IV. TERMS OF AGREEMENT
- 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.
- It is understood and agreed that this Agreement constitutes a compromise and settlement of disputed claims, and is not intended, nor to be construed, as an admission by the Company of non-compliance with the requirements of title III of the ADA and its implementing regulations or any liability arising thereunder. This Agreement therefore shall not be taken or used or be deemed admissible in evidence for purposes of proving non-compliance with the requirements of title III of the ADA and its implementing regulations or for purposes of proving any liability arising thereunder, in any action, cause of action or proceeding except an action brought by the United States to enforce the terms of this Agreement.
- The parties hereby confirm that there are no intended third-party beneficiaries of this Agreement, and therefore, no person who is not a party to this Agreement shall have any right to enforce its terms against either Party.
- The Company agrees to correct each violation identified in Attachment A, to the extent the violation has not already been remedied, in accordance with the schedule set forth below. For purposes of calculating the following schedule of remedial activities, the operative commencement date shall be September 15, 2014. This Agreement shall continue for a term of thirty-six months (the “Term”), unless extended by mutual agreement of the Parties.
- Within three months of the effective date of this Agreement, the Company shall ensure that:
- The designated accessible parking spaces in Resorts’ self-park garage have compliant access aisles;
- Resorts provides compliant van accessible parking spaces or equivalent parking for accessible vans; and
- Reservations for accessible guest rooms can be made through Resorts’ website reservation system.
- Within nine months of the effective date of this Agreement, the Company shall remedy each of the non-compliant circumstances described in the pertinent portions of Attachment A, with respect to the following rooms and/or spaces:
- Public toilet rooms, with the exception of the installation of ambulatory stalls in the men’s and women’s toilet rooms in the casino near Pennsylvania Avenue as set forth in paragraph 14(c) below;
- Drinking fountains;
- Bars; and
- Parking (including employee parking and any remaining noncompliant elements in the self-park garage).
- Within eighteen months of the effective date of this Agreement, the Company shall remedy each of the noncompliant circumstances described in the pertinent portions of Attachment A, with respect to:
- The installation of an ambulatory stall in the men’s and women’s toilet rooms in the casino near Pennsylvania Avenue.
- Within thirty-six months of the effective date of this Agreement, the Company shall provide twenty-seven (27) mobility-accessible guestrooms (at least eight (8) of which shall have compliant roll-in showers) that are compliant with the 2010 Standards.
- If during the course of this Agreement, the Company requires additional time to remedy a particular noncompliant element, the Company may request an extension of this schedule for that noncompliant element. Any extension request shall be made in writing and accompanied by supporting documentation.
- The Company will offer to upgrade guests with disabilities to an accessible guest room in a more expensive class of guest room, if available, at no additional charge if they request a class of guest room in Attachment A that does not have an accessible guest room. Guests may always upgrade to another available guest room at their own expense if the class of guest room they request has an accessible guest room or rooms, but the accessible guest rooms are temporarily sold out.
- If the Company renovates any space described in Attachment A affected by this Agreement such that any violation(s) identified in Attachment A no longer exist(s), then the Company shall be excused from remedying the alleged violation(s) because the violation(s) will be moot. The Company, however, shall ensure that the renovated space fully complies with the ADA.
- The Company shall not discriminate against individuals with disabilities on the basis of disability in the full and equal enjoyment of its goods, services, and facilities.
- The Company shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford its goods, services, or facilities to individuals with disabilities who visit Resorts, unless the modifications would fundamentally alter the nature of the goods, services, or facilities.
- The Company shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to, and usable by, persons with disabilities.
- Within six months of the effective date of this Agreement, the Company shall develop and implement a written Disability Rights Policy for Resorts that:
- Sets forth and explains the anti-discrimination mandate of title III of the ADA;
- Describes the duty to make reasonable modifications to policies, practices, and procedures under the ADA and provides examples of such modifications; and
- 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 21. The Disability Rights Policy shall include procedures for handling requests for reasonable modifications pertaining to gaming tables and slot machines and reservations for designated accessible guest rooms.
Resorts shall provide a draft of such Policy to the Department for review and comment prior to dissemination.
- Within twelve months of the effective date of this Agreement, the Company shall provide training on title III of the ADA to every manager and employee whose routine job functions require them to interact with guests, and any Resorts employee who receives, handles, or processes reservations or requests for reasonable modifications. For all of these managers and 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 Resorts’ new Disability Rights Policy. Resorts’ managers and employees who receive, handle, or process reservations will also receive training on the need to hold accessible guest rooms for possible use by persons with disabilities until all other guest rooms in the same price category have been rented, and the classes and types of guest rooms that Resorts offers that are designated as accessible. 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 it occurred.
- During the Term of this Agreement, the Company shall provide an annual report 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 Paragraphs 14, 20, and 21 of this Agreement. The report shall identify and document (e.g., with copies of construction contracts, photographs, and/or design drawings) the modifications that the Company has made, document any training of employees that has occurred (by date and the content of the training), and provide copies of any ADA-related policies that the Company has adopted.
V. IMPLEMENTATION AND ENFORCEMENT
- 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 Resorts’ facilities and to request information, documents, or photographs 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.
- 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 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 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 14, 20, or 21, 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.
- 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 24.
- 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.
- 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 any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, then, 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.
- All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax, electronic mail, 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:
Mark Sachais
Vice President, Hotel Operations
Resorts Casino Hotel
1133 Boardwalk
Atlantic City, NJ 08401
Tel: (609) 340-6788
Fax: (609) 340-6547
Email: MSachais@resortsac.com
With a copy to:
Nicholas F. Moles
Vice President & General Counsel
Resorts Casino Hotel
1133 Boardwalk
Atlantic City, NJ 08401
Tel: (609) 340-7955
Fax: (609) 340-6547
Email: NMoles@resortsac.com
FOR THE UNITED STATES:
Elizabeth A. Pascal
Assistant U.S. Attorney
United States Attorney’s Office
401 Market Street, 4th Floor
Camden, NJ 08102
Elizabeth.Pascal@usdoj.gov
Tel: (856) 757-5105
Fax: (856) 757-5416
- This Agreement including Attachment A, constitutes the entire Agreement between the Parties relating to Department of Justice Investigation No. 202-48-244 with respect to the matters raised herein, 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.
- 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.
- This Agreement is limited to the Resorts facility 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.
- 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.
- The effective date of this Agreement is September 15, 2014. The Agreement shall remain in effect for thirty-six months from the effective date, unless extended by written agreement of the Parties.