BACKGROUND1. This matter was initiated by a complaint filed under title III of the American with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice (“the Department”) against the owner and the operator of the Westin Convention Center Hotel in Pittsburgh, Pennsylvania (“Hotel”). The complainant alleged that the Hotel does not have guest rooms that are accessible to persons in wheelchairs because the toilet seats in guest bathrooms were positioned too low. The Department conducted an onsite survey of the entire Hotel, by which time the toilet seats were corrected. The Department’s investigation revealed other accessibility issues as reflected in this agreement.
2. The Attorney General is authorized to enforce title III of the ADA by seeking damages, civil penalties, and full compliance with title III’s provisions, including requiring the owners and operators of a place of public accommodation to make it readily accessible to and usable by individuals with disabilities. 36 C.F.R. §§ 36.504(a)(1)(iii), (2), and (3). 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. Id. at §12188(b)(1)(B).
3. The Westin Convention Center Hotel in Pittsburgh, Pennsylvania is a place of lodging providing 618 sleeping room for guests, 24 of which are designated as accessible to people with disabilities. It was constructed in 1985-86 and its Fish Market Restaurant, a primary function area, was renovated in 1998. The facility is a place of public accommodation under title III of the ADA. 42 U.S.C. § 12181(7)(A), (B); 28 C.F.R. § 36.104.
4. A public accommodation covered by title III of the ADA is a private entity who owns, operates, leases to (or leases from) a place of public accommodation. Liberty Center Ventures owns the Westin Convention Center Hotel, including the Fish Market Restaurant, and the adjoining parking garage. Westin Hotels & Resorts, through its manager Joseph Kane, operates the Westin Convention Center Hotel. Liberty Center Ventures and Westin Hotels & Resorts are public accommodations within the meaning of the ADA. As such, each has an independent obligation to comply with title III’s provisions.
5. Westin Hotels & Resorts (Operator) and Liberty Center Ventures (Owner) agree to undertake the barrier removal steps outlined in this settlement agreement, to ensure that individuals with disabilities, including individuals who have hearing impairments or mobility impairments, have an opportunity equal to that of others to enjoy the Hotel’s amenities. References are to the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.
6. The parties have determined that Department of Justice complaint 202-64-32 can be resolved through compromise and without litigation. Accordingly, each agrees to the terms set forth in this document. In exchange for this agreement, the Department of Justice will not seek monetary damages or civil penalties, or to litigate this matter, except as provided below.
REMEDIAL ACTION7. The Owner will complete the following actions within 180 days of the effective date of this agreement:
Parking Garage
a. The garage has 11 designated accessible parking spaces; some spaces are not at least 96 inches wide and some access aisles are not at least 60 inches wide. Demarcate these areas so that each space and aisle complies with the Standards; parking spaces may share a common access aisle. § 4.6.3
b. One space on each of the garage’s two levels lacks a sign. Install a sign at each space, using the symbol of accessibility, in a location that cannot be obscured by a vehicle parked in the space. §§ 4.6.4, 4.30.7.
Side Entrance to Fish Market Restaurant
c. The exterior door of the Liberty Center, leading to the side entrance of the Fish Market Restaurant, is extremely heavy and closes almost immediately. Adjust the door so that it closes in at least than three seconds from an open position of 70 degrees to a point 3 inches from the latch, measured to the leading edge of the door. § 4.13.10.
Fish Market Restaurant (alterations)
d. The Restaurant has a carry-out service on the side facing Liberty Center, with a cash register counter that is 37 _ inches above the finish floor. Provide a counter that is at least 36 inches wide and no more than 36 inches high. § 7.2(1); or provide equivalent facilitation (e.g., by offering these services at an accessible location for individuals who use wheelchairs).
e. The ramp to the cocktail area is blocked by a chair at the top. Maintain the 36-inch clear minimum width of the ramp. §§ 4.3.3, 4.8.3; 28 C.F.R. § 36.2118. The Operator and/or Owner will take the following actions within one year of the effective date of this agreement:
a. Public Telephones
Lobby
(1) There are three house phones: one cannot be used by people who use wheelchairs because a chair impedes approach; two others are located in an alcove with an entry 30 1/2 inches wide, and above the reach ranges of people who use wheelchairs. Provide a house phone in an accessible lobby location that has clear floor space at least 30 inches by 48 inches that allows for either a forward or parallel approach, and has its highest operable part within the corresponding reach ranges of a person who uses a wheelchair. §§4.31.2, 4.31.3 & Fig. 44, 4.2.1, 4.2.4, 4.2.5, 4.2.6.
(2) There are three public pay telephones located in an alcove that has an entry 30 1/2 inches wide that allow only a forward approach, and that have their highest operable part 54 inches above the floor. Provide a public pay telephone in an accessible location that has clear floor space at least 30 inches by 48 inches that allows for either a forward or parallel approach, and has its highest operable part within the corresponding reach ranges of a person who uses a wheelchair. §§4.31.2, 4.31.3 & Fig. 44, 4.2.1, 4.2.4.
(3) There are four or more public pay telephones provided in the Hotel.
Provide at least one interior public text telephone (TTY) in the lobby and signs at telephone banks directing people to its location. §§ 4.1.3(17)(c)(i), 4.31.9, 4.30.7(3).Second Floor, Orchard Café
(4) There are two public pay telephones and a house phone that have their highest operable parts at 62 and 64 inches above the floor, respectively. Provide one public telephone and one house phone so that their highest operable parts are no more than 48 inches above the floor for a forward approach. § 4.31.9 & Fig 44.
Second Floor, Business Center
(5) There are two public pay telephones and a house telephone located in an alcove that has an entry 30 inches wide that allow only a forward approach, and that have their highest operable parts 51-64 inches above the floor. Provide a public pay telephone and a house phone in accessible locations that have clear floor space at least 30 inches by 48 inches that allow for either a forward or parallel approach, and have their highest operable parts within the corresponding reach ranges of a person who uses a wheelchair. §§4.31.2, 4.31.3 & Fig. 44, 4.2.1, 4.2.4.
Third Floor
(6) The highest operable part of the house telephone is 63 inches above the finish floor. Provide a house phone that has its highest operable part within the reach ranges of a person who uses a wheelchair. §§ 4.31.2, 4.31.3 & Fig. 44.
b. Men’s and Women’s Toilet Rooms in Lobby (applies to both unless otherwise indicated) (on a path of travel to Restaurant)
(1) The toilet room identification sign is mounted on the door. Provide a sign using raised letters and Braille on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of the sign without encountering protruding objects or standing within the swing of a door. §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The women’s room entry door closes in less than three seconds. Adjust the door so that it closes in at least three seconds from an open position of 70 degrees to a point 3 inches from the latch, measured to the leading edge of the door. § 4.13.10.
(3) The women’s room toilet stalls have locks; the designated accessible stall lock is broken. Provide a lock on the designated accessible stall that is easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. § 4.13.9.
(4) The designated accessible stall in each room has a lavatory located within it that intrudes on the minimum space required for a standard accessible stall (that permits a diagonal or side transfer to the toilet seat). Remove the lavatory and provide an accessible lavatory outside the stall, or enlarge the stall so that the lavatory does not impinge on the minimum required space that is 60 inches wide and 59 inches deep (56 inches if the toilet is wall hung). § 4.17.3 & Fig. 30(a), Fig. A6.
(5) The toilet seat cover dispenser interferes with the use of the side grab bar. Provide a dispenser in each stall that does not interfere with the use of the side grab bar, is within the reach ranges of a person using a wheelchair, and is in an area where there is a 30 inch by 48 inch clear floor space adjacent to the dispenser. §§ 4.27.2, 4.27.3, 4.2.4, 4.2.5, 4.2.6.
(6) The lavatory in the designated accessible stall in the men’s room has a knee clearance that is 271/2 inches above the floor and 3 inches deep, and the drain pipe is not insulated. Provide an accessible lavatory, as provided in paragraph (4) above, with a knee clearance that is at least 8 inches deep and 27 inches above the finish floor and a drain pipe that is insulated or otherwise configured to protect against contact. §§ 4.19.2, 4.19.4, & Fig. 31.c. Second Floor Men’s and Women’s Toilet Rooms (Penn Avenue side)
Neither room is fully accessible. The women’s toilet room identification sign is mounted on the door, 15 pounds of force are required to open the door, and the designated accessible stall is 38 inches wide and 63 inches deep. In the men’s toilet room, the designated accessible stall is 42 inches wide and 58 inches deep and the rim of the urinal is 21 inches above the floor.
Remove the signs from both doors that indicate accessibility and install signs directing users to the toilet rooms near the Orchard Café and the Business Center after these have been modified to be accessible (see §§ 8.d & 8.e, below). §§ 4.1.3(16)(b), 4.30.1, 4.30.2, 4.30.3, 4.30.5.d. Orchard Café Men’s and Women’s Toilet Rooms
(1) The pressure required to open the door to the men’s toilet room is 22 pounds; the women’s room door requires 16 pounds. Adjust the door closers so that the force required to open the doors is no more than 5 pounds. § 4.13.11(2)(b).
(2) The designated accessible stalls in the men’s room and women’s room are 36 inches wide and 63 inches deep. Provide a “standard” accessible toilet stall in each room at least 60 inches wide and 59 inches deep (56 inches if toilet is wall mounted) such that all of the stall’s elements, including stall door, stall door hardware, water closet, size and arrangement, toe clearances, grab bars, controls and dispensers comply with the Standards. §§ 4.13, 4.16, 4.17 & Fig. 30(a), 4.22.4, 4.22.7, 4.26, 4.27.e. Second Floor Men’s and Women’s Toilet Rooms (near Business Center) (applies to both unless otherwise indicated)
(1) The men’s toilet room identification sign is mounted on the door. Provide a sign using raised letters and Braille on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of the sign without encountering protruding objects or standing within the swing of a door. §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) The pressure required to open the door to the men’s toilet room is 19 pounds; the women’s room door requires 17 pounds. Adjust the door closers so that the force required to open the doors is no more than 5 pounds. § 4.13.11(2)(b).
(3) The men’s toilet room has six stalls; the women’s has seven. The designated accessible stall in each room is 37-38 inches wide and 63 inches deep.
Provide a “standard” accessible toilet stall in each room at least 60 inches wide and 59 inches deep (56 inches if toilet is wall mounted) such that all of the stall’s elements, including stall door, stall door hardware, water closet, size and arrangement, toe clearances, grab bars, controls and dispensers comply with the Standards. §§ 4.13, 4.16, 4.17 & Fig. 30(a), 4.22.4, 4.22.7, 4.26, 4.27.
Also, provide a 36-inch wide “ambulatory” stall in each room with an outward swinging, self-closing door and parallel grab bars. §§ 4.22.4 & Fig.30(d), 4.16, 4.26.
(4) The control for the feminine products dispenser in the women’s room is 63 inches above the floor. Provide a dispenser that has its highest operable part no more than 48 inches above the finish floor for a forward reach or, if that is not available, no more than 54 inches for a forward reach. §§ 4.27.3, 4.2.5, 4.2.6.f. Third Floor Men’s and Women’s Toilet Rooms (applies to both unless otherwise indicated)
(1) The toilet room identification sign is mounted on the door. Provide a sign using raised letters and Braille on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of the sign without encountering protruding objects or standing within the swing of a door. §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
(2) There are two entry doors to each room. The doors to the women’s room close in less than three seconds. The pressure required to open the second women’s room door and both doors to the men’s room is 18 pounds. Adjust the doors so that they close in at least three seconds from an open position of 70 degrees to a point 3 inches from the latch, measured to the leading edge of the door. § 4.13.10. Adjust the door closers so that the force required to open the doors is no more than 5 pounds. § 4.13.11(2)(b).
(3) The women’s toilet room has 12 stalls; the men’s has seven. Each room has two designated accessible stalls 35-36 inches wide and 65 inches deep, but the doors are not self closing and there is no clear floor space at the toilet seat cover dispenser, which is mounted over the toilet.
Provide a “standard” accessible toilet stall in each room at least 60 inches wide and 59 inches deep (56 inches if toilet is wall mounted) such that all of the stall’s elements, including stall door, stall door hardware, water closet, size and arrangement, toe clearances, grab bars, controls and dispensers comply with the Standards. §§ 4.13, 4.16, 4.17 & Fig. 30(a), 4.22.4, 4.22.7, 4.26, 4.27.
Also, provide a 36-inch wide “ambulatory” stall in each room with an outward swinging, self-closing door and parallel grab bars. §§ 4.22.4 & Fig.30(d), 4.16, 4.26. If a toilet seat cover dispenser is provided, ensure that it is mounted within the reach ranges of a person using a wheelchair and that clear floor space is provided. §§ 4.27.2, 4.27.3, 4.2.4, 4.2.5, 4.2.6.
(4) The control for the feminine products dispenser in the women’s room is 62 inches above the floor. Provide a dispenser that has its highest operable part no more than 48 inches above the finish floor for a forward reach or, if that is not available, no more than 54 inches for a forward reach. §§ 4.27.3, 4.2.5, 4.2.6.g. Fourth Floor Fitness Center
(1) The lavatories in the men’s and women’s locker rooms do not provide sufficient knee clearance. Provide a lavatory in each room that meets the height, clear floor space, knee clearance, and toe clearance requirements of the Standards. §§ 4.19.2, 4.19.3 & Fig. 31, Fig. 32.
(2) The designated accessible shower stalls in the men’s and women’s locker room have fixed shower heads. Provide a shower spray unit in each stall with a hose at least 60 inches long that can be used both as a fixed shower head and as a hand-held shower. § 4.21.6.
(3) The designated accessible stalls in the men’s and women’s toilet rooms are 36 inches wide. Provide a “standard” accessible toilet stall in each room that is at least 60 inches wide and 59 inches deep (56 inches if toilet is wall mounted) such that all of the stall’s elements, including stall door, stall door hardware, water closet, size and arrangement, toe clearances, grab bars, controls and dispensers comply with the Standards. §§ 4.13, 4.16, 4.17 & Fig. 30(a), 4.22.4, 4.22.7, 4.26, 4.27.
(4) The top of the service counter is 48 inches above the finish floor. Provide a counter that is at least 36 inches wide and no more than 36 inches high; or provide an auxiliary counter with a maximum height of 36 inches; or provide equivalent facilitation (e.g., by offering those services at an accessible location for individuals who use wheelchairs). § 7.2(2).9. The Operator and/or Owner will take the following actions to modify the designated accessible sleeping rooms and bathrooms within 270 days of the effective date of this agreement:
Room 1114, Room 914, and Room 714 were surveyed as typical of rooms in their class. They require the modifications noted below. Modify these elements in the remaining designated accessible rooms, as necessary.
a. The room identification sign is not accessible. Provide a sign using raised letters and Braille on the wall adjacent to the latch side of the door so that the centerline of the sign is 60 inches above the finish floor and a person can approach within 3 inches of the sign without encountering protruding objects or standing within the swing of a door. §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6.
b. The closet rod and shelf are 51 and 53 1/2 inches, respectively, above the finish floor and require a forward approach. Provide a rod and shelf that are no more than 48 inches above the finish floor. §§ 9.2.2(4), 4.25.2, 4.25.3, 4.2.5.
c. The grab bar at the foot of the bathtub is centered. Provide a grab bar at the foot that is mounted closer to the point of entry, above the control panel, as illustrated in the Standards. §§ 9.2.2(6)(e), 4.20.3 & Figs.33, 34.
d. There is no seat in the bathtub. Provide an in-tub seat or a set at the head of the tub that is mounted securely and will not slip during use, and provide side grab bars appropriate to the position of the seat. §§ 9.2.2(6)(e), 4.20.3 & Figs. 33, 34.
e. The highest operable part of the drapery wand is 57 inches above the floor. Provide a wand that has its highest operable part no more than 48 inches above the finish floor for a forward reach or, if that is not available, no more than 54 inches for a forward reach. §§ 9.2.2(5), 4.27.3, 4.2.5, 4.2.6.
f. The length of the rear grab bar at the toilet is 24 inches. Provide a rear grab bar that is at least 36 inches long with the end closer to the side wall mounted at least 12 inches from the centerline of the toilet, i.e., no more than 6 inches from the side wall. §§ 9.2.2(6)(e), 4.16.4 & Fig. 29(a).10. The Hotel may expand in the near future. If this occurs, the Operator and/or Owner will ensure that, as the number of sleeping rooms increases, accessible sleeping rooms -- particularly those with roll-in showers – are added in compliance with the Standards. §§ 9.1.5, 9.1.2, 9.1.3 and accompanying charts.
REPORTING11. Within 270 days and one year of the effective date of this agreement, the Hotel Owner and Operator will submit a report to the Department summarizing the actions it has taken pursuant to this agreement. The report will consist primarily of detailed photographs of the architectural modifications required by this agreement and clearly show the dimensions of the various elements and spaces so that compliance with the ADA Standards may be determined.
ENFORCEMENT12. The Department of Justice may review compliance with this agreement at any time. If the Department believes that this agreement or any of its requirements have been violated, it may institute a civil action in federal district court to enforce this agreement or the requirements of the title III, following written notices to the Owner and Operator of possible violations and a period of 10 days in which each has the opportunity to cure the alleged violations. If the Department has to enforce the provisions of this agreement, it may seek damages, civil penalties, and all other relief authorized by law.
13. Failure by the Department to enforce this entire agreement or any of its provisions or deadlines as to one or more of the parties shall not be construed as a waiver of the Department’s right to enforce other deadlines and provisions of this agreement.
14. This agreement shall be binding on the Owner and Operator and their successors in interest. The Owner and Operator have a duty to notify all such successors in interest of this agreement and the duties and responsibilities it imposes on them.
IMPLEMENTATION15. This agreement is a public agreement. A copy of this document or any information contained in it may be made available to any person by Owner or Operator or the Department.
16. The effective date of this agreement is the date of the last signature below.
17. This agreement constitutes the entire agreement among the parties on the matters raised herein, 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 written agreement, will be enforceable under its provisions.
18. This agreement is limited to the facts set forth above the does not purport to remedy any other potential violations of the ADA or any other Federal law. This agreement does not affect the Owner’s and Operators’s continuing responsibility to comply with all aspects of title III of the ADA, including the ongoing obligation to engage in readily achievable barrier removal.
19. This agreement will remain in effect for 14 months from the effective date of this agreement or until the parties agree that full compliance with this agreement by the Westin Convention Center Hotel has been achieved.
FOR WESTIN HOTELS & RESORTS: FOR THE UNITED STATES:
By:__________________________
JOSEPH KANE
Manager
FOR LIBERTY CENTER VENTURES:
_____________________________
Date 7/31/03
RALPH F. BOYD, JR.,
Assistant Attorney General for Civil Rights Division.
By:__________________________
JOHN L. WODATCH, Chief
MARY LOU MOBLEY, Acting Deputy Chief
JOSH MENDELSOHN, Supervising Attorney
SCHWANDA ROUNTREE, Investigator
U.S Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section-NYA
Washington , DC 20530
Date 8/14/03
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February 2, 2004