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SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
DELTA RIDGE HOSTING LLC
IN DEPARTMENT OF JUSTICE COMPLAINT NUMBER 202-43-79
BACKGROUND
1. The Department of Justice ("the United States" or “the Department”) initially opened this matter to investigate a joint complaint filed in August 2001 by [redacted] against the Victorian Palace Hotel (“the Hotel”) in Branson, Missouri. Specifically, the joint complaint alleged that there were several architectural barriers to access at the Hotel, as well as within the Hotel’s designated accessible room, in violation of title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189.
2. The Hotel is a place of lodging, providing 59 separate sleeping rooms for guests, and as such is a place of public accommodation covered by title III of the ADA. See 42 U.S.C. § 12181(7)(f). At the time the joint complaint was filed and throughout the time the Department conducted its investigation, the Hotel was owned and operated by Rick Basnett, d/b/a Victorian Palace Hotel, Inc. (“Victorian Palace”). Accordingly, Victorian Palace was subject to title III’s new construction standards, including the Standards for Accessible Design (“ADA Standards”), 28 C.F.R. pt. 36 app. A. On November 3, 2003, moreover, David Bryant and Sherry Teague, d/b/a/ Delta Ridge Hosting LLC (“Delta Ridge”) assumed ownership and operation of the Hotel. Thus, Delta Ridge was subject to title III’s barrier removal standards. With respect to Victorian Palace, the Department’s investigation determined that certain aspects of the Hotel’s premises constructed after title III’s effective date violate title III and its implementing regulation, including the Standards for Accessible Design (“ADA Standards”), 28 C.F.R. pt. 36 app. A. The United States further determined that, with respect to Delta Ridge’s ownership obligations, certain aspects of the Hotel premises contain architectural barriers to access and that removal of these barriers is readily achievable
3. The Attorney General is authorized to enforce title III of the ADA by seeking the alteration of facilities to make such facilities readily accessible to and usable by individuals with disabilities. See 42 U.S.C. § 12188(a)(2). In addition, the Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. See id. at § 12188(b)(1)(B).
4. Delta Ridge states that it is committed to full compliance with the Americans with Disabilities Act, as determined by the United States. To demonstrate that commitment, Delta Ridge agrees to remove architectural barriers where they exist within the Hotel. The Hotel agrees to take the steps outlined in this Settlement Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the Hotel’s accommodations. Accordingly, the United States and Delta Ridge have determined that Department of Justice Matter Number 202-43-79 can be resolved without litigation pursuant to the terms and conditions hereinafter set forth in this Settlement Agreement (“Agreement”).
AGREEMENT
5. Delta Ridge and its officers, agents, and employees are hereby enjoined from:
a. failing to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable pursuant to title III of the ADA and its implementing regulation, including the ADA Standards; and
b. discriminating against individuals on the basis of disability in the full and equal enjoyment of the accommodations of the Hotel.
6. Delta Ridge agrees to make the following modifications:
Parking
a. Restripe the parking spaces adjacent to the main entrance so that there are two designated accessible parking spaces on the shortest accessible route of travel from adjacent parking to the main entrance, including one van accessible parking space, and adjacent access aisles. See ADA Standards §§ 4.1.2(5)(a), 4.1.2(5)(b), 4.6.
b. Restripe the designated accessible parking space across the drive aisle from the lower level entrance so that it is on the shortest accessible route of travel from adjacent parking to the lower level entrance and so that it is adjoined by an access aisle, in compliance with ADA Standards §§ 4.1.2(5) and 4.6.
c. Ensure that all accessible parking spaces are so designated by signage complying with ADA Standards §§ 4.1.2(5), 4.1.2(7)(a), and 4.6.4.
Main Entrance
d. Ensure that the entry door with accessible door opening hardware (i.e., the inactive knob with inactive thumb latch) is so designated by signage containing the International Symbol of Accessibility, in compliance with ADA Standards §§4.1.2(7)(c).
e. Modify the ramp from the exterior to the accessible main entrance door so that the slope of the ramp is no more than 1:12, there is a level landing at the top of the ramp, and so that the entrance and ramp otherwise comply with ADA Standards 4.1.2(1), 4.3.8, and 4.8.
Lower Level Entrance
f. Modify the door opening hardware for the lower level entrance door so that it does not require tight grasping and twisting of the wrist, in compliance with ADA Standards §§ 4.1.3(7) and 4.13.9.
g. Modify the ramps from the exterior to the lower level entrance door so that the slope of the ramp is no more than 1:12, there is a level landing at the top of the ramp, and so that the entrance and ramp otherwise comply with ADA Standards §§ 4.1.2(1), 4.3.8, and 4.8.
Pool
h. Install a curb cut or ramp along the route from the Hotel to the pool at the point where the parking lot pavement meets the sidewalk at the pool, in compliance with ADA Standards §§ 4.1.3(1), 4.3.8, and 4.8.
Accessible Sleeping Rooms
i. Ensure that at least four fully accessible sleeping rooms are provided. See ADA Standards §§ 9.1.2, 9.2-9.4. Each accessible sleeping room shall be made compliant with the ADA Standards by:
(1) Modifying the signage in the hallway designating the accessible sleeping room so that it is on the latch side of the sleeping room door; it includes Braille and raised numbering and/or lettering; and it is mounted at 60 inches above the finish floor to the centerline of the sign, in compliance with ADA Standards §§ 4.1.3(16)(a), 4.30.4, 4.30.5, and 4.30.6.
(2) Installing a visual notification device to alert occupants of incoming telephone calls or knocks on the door, in compliance with ADA Standards §§ 9.1.3, 9.3, and 4.28.4.
(3) Providing a permanently installed telephone with volume controls, in compliance with ADA Standards §§ 9.1.3, 9.3.1, and 4.31.5.
(4) Providing an accessible electrical outlet within four (4) feet of a telephone connection for TTY usage, in compliance with ADA Standards §§ 9.1.3 and 9.3.1.
(5) Configuring the door to the sleeping room so that adequate maneuvering space is provided in front of the door, in compliance with ADA Standards §§ 9.2.2(3), 4.13.6, and Figure 25.
(6) Ensuring that a maneuvering space at least 36 inches wide is provided along both sides of any beds within the accessible sleeping room, in compliance with ADA Standards § 9.2.2(1).
(7) Mounting at least one clothes rod so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(12), 4.2.6, and 4.25.3.
(8) Mounting at least one clothing storage shelf so that it is no more than 54 inches above the finish floor, in compliance with ADA Standards §§4.1.3(12), 4.2.6, 4.25.3, and Fig. 38.
(9) Installing a visual fire alarm inside the accessible sleeping room, in accordance with ADA Standards §§ 4.1.3(14), 9.3, and 4.28.
j. Ensure that each of the designated accessible sleeping rooms contain an accessible bathroom, by:
(1) Configuring the bathroom door so that adequate maneuvering space is provided in front of the door, in compliance with ADA Standards §§ 4.13.6, 9.2.2(3), and Figure 25.
(2) Ensuring that the bathroom has at least a 60-inch diameter unobstructed turning space, in accordance with ADA Standards §§ 4.1.3(11), 4.23.
(3) Modifying the toilet so that the centerline is exactly 18 inches from the wall, and so that the toilet seat is between 17 and 19 inches above the finish floor, in compliance with ADA Standards §§ 4.1.3(11), 4.16.2, 4.16.3, 4.23.4, and Figure 28.
(4) Providing adequate clear floor space in front of any towel rack, in compliance with ADA Standards §§ 9.2.2(4), 4.25.2, and 4.2.4.
(5) Mounting toilet grab bars at the rear and side of the toilet, in compliance with ADA Standards §§ 4.16.4, 4.23.4, 9.2.2(6)(e), and Figure 29.
(6) Mounting the toilet paper dispenser so that it is located underneath the side grab bar, in compliance with ADA Standards §§ 4.16.6, 4.23.4, 9.2.2(6)(e), and Figure 29(b).
(7) Providing between 17 and 19 inches of clear floor space underneath the lavatory, in compliance with ADA Standards §§ 4.19.3, 4.23.6, 9.2.2(6)(e), and Figure 32.
(8) Modifying the lavatory so that the knee space under the lavatory is at least 27 inches high and eight (8) inches deep, in compliance with ADA Standards §§ 4.19.2, 4.23.6, 9.2.2(6)(e), and Figure 31.
(9) Installing a mirror so that the bottom edge of the reflecting surface of the mirror is no higher than 40 inches above the finish floor
(10) Providing adequate clear floor space at the shower stall, in accordance with ADA Standards §§ 4.1.3(11), 4.21, 4.23.8, and Fig. 35.
(11) If the shower is a roll-in shower, constructing the shower so that it is at least 60 inches wide and 36 inches deep; so that it has no curb; so that it has a folding seat and a direct transfer can be effected from a wheelchair to the folding seat; and so that the shower controls are located in a position usable by a person seated on the shower seat, in compliance with ADA Standards §§ 4.23.8, 4.21, 9.1.2, and Figure 57. At least one of the accessible sleeping rooms must contain a bathroom with a roll-in shower, in compliance with ADA Standards §§ 9.1.2 and 9.2.
(12) If the shower is a small transfer shower, constructing the shower so that it is exactly 36 inches wide and 36 inches deep; so that it has a curb that is no more than one-half (½) inch high; so that a direct transfer can be effected from a wheelchair to the shower seat; and so that the shower controls are located in a position usable by a person seated on the shower seat, in compliance with ADA Standards §§ 4.21, 4.23.8, 9.1.2, and Figures 35 and 37.
(13) Installing a visual fire alarm inside the bathroom, in accordance with ADA Standards §§ 4.1.3(14) and 4.28.
Other Sleeping Rooms
k. Modify the signage in the hallway designating each sleeping room so that it is on the latch side of the sleeping room door; it includes Braille and raised numbering and/or lettering; and it is mounted at 60 inches above the finish floor to the centerline of the sign, in compliance with ADA Standards §§ 4.1.3(16)(a), 4.30.4, 4.30.5, and 4.30.6.
l. Ensure that at least three sleeping rooms in addition to the four designated accessible sleeping rooms provide accommodations for guests with hearing impairments. See ADA Standards § 9.1.3. In complying with this paragraph, the Hotel shall in each such room:
(1) Install a visual notification device to alert occupants of incoming telephone calls or knocks on the door, in compliance with ADA Standards §§ 4.28.4, 9.1.3, and 9.3.
(2) Provide a permanently installed telephone with volume controls, in compliance with ADA Standards §§ 4.31.5, 9.1.3, and 9.3.1.
(3) Provide an accessible electrical outlet within four (4) feet of a telephone connection for TTY usage, in compliance with ADA Standards §§ 9.1.3 and 9.3.1.
(4) Install a visual fire alarm inside the accessible sleeping room, in accordance with ADA Standards §§ 4.1.3(14), 4.28, 9.1.3, and 9.3.1.
COMPLETION, CERTIFICATION AND NOTICE
7. Delta Ridge agrees to submit the proposed plans and specifications necessary to comply with all of the corrective actions enumerated in ¶ 6 above within 180 days of the Effective Date of this Agreement. The United States will review these plans and specifications within 60 days for approval; such approval will not be unreasonably withheld. Delta Ridge will complete all steps enumerated in ¶ 6 above during the term of this Agreement. Any modifications performed without approval of the United States that do not strictly comply with the ADA Standards must be redone within 30 days of the Department’s objections.
8. No later than 60 days prior to the expiration of this Agreement, Delta Ridge shall certify to the Department, in writing, that it has fulfilled all of its obligations under this Settlement Agreement. The certification shall set out each of the obligations that has matured by the date of the certification and shall describe the steps Delta Ridge has taken to fulfill these obligations. The certification shall also identify all continuing obligations under this Agreement, and describe how Delta Ridge will meet those obligations. Delta Ridge will allow representatives of the Department access to the Hotel so that the Department may monitor compliance with the certification and this Agreement.
9. In the event that Delta Ridge is required to obtain, for any of the steps to remove barriers to access specified in this Agreement any building, mechanical, electrical, plumbing or other permit or approval, Delta Ridge shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Delta Ridge for obtaining the permit or approval, or is denied, Delta Ridge shall promptly notify counsel for the Department. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.
10. In consideration of the promises made in ¶¶ 5 through 9 above, the United States agrees to close the investigation of Matter Number 202-43-79 and to refrain from bringing a civil action against Delta Ridge, except as provided in Paragraph 11 below
REPORTING AND ENFORCEMENT
11. On the one-, two-, and three-year anniversary dates of the effective date of this Agreement, Delta Ridge will submit a report to the Department concerning compliance with this Agreement. The report shall include written documentation evidencing completion of all corrective actions taken in the preceding year, as determined by paragraph 6, in sufficient detail for the DOJ to independently confirm that all work has been done in conformance with the parties' agreement. Such evidence may include, but is not limited to, color photographs, purchase orders, permits, and/or architectural drawings, if necessary.
12. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it 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 Delta Ridge and the parties will attempt to resolve the concern(s) in good faith. The United States will give Delta Ridge 21 days from the date it notifies Delta Ridge of any breach of this Agreement to cure that breach, prior to instituting any court action.
13. 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.
DURATION OF AGREEMENT
14. This Agreement shall remain in effect for three years from the Effective Date.
ENTIRE AGREEMENT
15. This Agreement constitutes the entire agreement between the parties relating to Department of Justice No. 202-43-79 and no other statement, promise, or agreement, either 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.
AUTHORITY TO BIND
16. This Agreement shall be binding on Delta Ridge, including all its principals, agents, and successors in interest, and employees, as well as any person acting in concert with Delta Ridge and Delta Ridge has a duty to so notify all such principals, agents, and successors. In the event Delta Ridge seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Delta Ridge shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this Agreement.
IMPLEMENTATION
17. This Agreement resolves all issues raised in United States’ Matter No. 202-43-79. It is limited to those issues and does not address Delta Ridge’s other obligations under the ADA, including physical access at any other facility or facilities owned, leased, or operated, now or in the future, by Delta Ridge.
18. The person signing this document for Delta Ridge represents that he is authorized to bind Delta Ridge to this Agreement.
19. Any notice required to be given pursuant to this Settlement Agreement shall be sent by certified mail, return receipt requested, to the parties at the following addresses:
a. If from Delta Ridge to the United States, to:
John L. Wodatch, Chief
L. Irene Bowen, Deputy Chief
Phyllis M. Cohen, Senior Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
b. If from the United States to Delta Ridge, to:
Mr. David Bryant
Ms. Sherry Teague
Delta Ridge LLC
c/o Victorian Palace Hotel
600 Schaefer Drive
Branson, MO 65616
20. The Effective Date of this Agreement is the date of the last signature below.
AGREED AND CONSENTED TO:
| FOR DELTA RIDGE HOSTING LLC |
FOR THE UNITED STATES OF AMERICA |
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By: __________________________
Mr. David Bryant
Ms. Sherry Teague
Delta Ridge LLC
600 Schaefer Drive
Branson, MO 65616
(417) 334-8727
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WAN J. KIM
Assistant Attorney General
Civil Rights Division
By: _____________________________
JOHN L. WODATCH, CHIEF
L. Irene Bowen, Deputy Chief
Phyllis M. Cohen
Senior Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, D.C. 20530
(202) 514-3882
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| Date: 06- 20-2006 |
Date: 8/8/2006 |
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