Settlement Agreement between the United States of America,
the City of Winter Park,
and
Winter Park Scenic Boat Tour, Inc.
Regarding Boat Launch Access
Under the Americans with Disabilities Act
USAO # 2015V05310/DJ # 202-17M-483

BACKGROUND AND JURISDICTION

1. This Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”), the City of Winter Park, Florida (the “City”) and Winter Park Scenic Boat Tour, Inc. (“Scenic Boat Tour”).
2. This Agreement resolves an investigation conducted by the United States Department of Justice (the “United States”) of the City and Scenic Boat Tour under Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165, 12181-12189 (2000) (the “ADA”).  Scenic Boat Tour operates from a dock located at 312 East Morse Blvd. Winter Park, Florida (the “Boat Launch”). The dock is owned by the City of Winter Park and is leased to Scenic Boat Tour.
3. Scenic Boat Tour offers guided cruises of Winter Park lakes from the Boat Launch on a fleet of six eighteen-passenger pontoon boats.
4. This matter was commenced when the United States received a complaint filed by a person with a disability against the City and Scenic Boat Tour. The complaint alleged that the Boat Launch is not accessible to people with disabilities because the Boat Launch is only accessible by use of a set of stairs from the parking lot. The United States investigated that complaint pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(i)(2000). The United States requested information from the City and Scenic Boat Tour, and discussed the issue with both parties, who acknowledge there is no ramp or other accessible route to the Boat Launch.
5. The ADA applies to the City of Winter Park because it is a “public entity” as defined by title II of the ADA. 42 U.S.C. § 12131, 28 C.F.R. § 35.104.
6. The Attorney General is authorized under 28 C.F.R. Part 35, Subpart F, to determine compliance with title II of the ADA and the Attorney General’s title II implementing regulation, and where appropriate, to seek resolution through informal means, such as through this settlement agreement.  If resolution is not achieved, the AG is authorized to issue a letter of finding.  Furthermore, under 42 U.S.C. § 12133, the AG is authorized to bring a civil action enforcing title II of the ADA, if unable to secure voluntary compliance pursuant to Subpart F.
7. Under title II, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. 28 C.F.R. § 35.130(a).
8. The ADA applies to Scenic Boat Tour because it is a private entity that owns, leases, or operates a boat tour company, and its operations affect commerce. It is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104. Accordingly, Scenic Boat Tour 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.
9. Title III requires that Scenic Boat Tour 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) and 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) and 28 C.F.R. § 36.302 (2006).  Further, a public accommodation must maintain in operable working condition those features that are required to be accessible 28 C.F.R. § 36.211(a).

INVESTIGATION

10. In the course of its investigation, the United States identified violations of the ADA Standards for Accessible Design, § 35.104. Attached as Appendix A to this Agreement is the complete list of elements surveyed by the United States which fail to comply with the ADA.

TERMS OF AGREEMENT

11. In order to avoid potential litigation, the parties agree to the terms of this Agreement. These terms are intended to redress the alleged violation of the ADA that has been identified by the United States.  This Agreement does not constitute an admission by the City or Scenic Boat Tour of liability under the ADA or of any violation of the ADA as described in this Agreement, in Attachment A, or otherwise.
12. The City and Scenic Boat Tour agree to correct the violation identified in Attachment A no later than 12 months after the effective date of this Agreement.
13. The City and Scenic Boat Tour will construct either an elevator or a ramp to provide wheelchair access to the Boat Launch from the parking lot located at 312 East Morse Blvd. Winter Park, Florida. The City and Scenic Boat Tour will also construct a ramp as required to provide wheelchair access to the boats from the Boat Launch. These elements will be constructed to comply with the 2010 ADA Standards for Accessible Design.
14. Scenic Boat Tour has agreed to provide wheelchair access to its services via an alternate location while the modifications in paragraph 13 are being constructed.  Within 30 days of the signing of this Agreement, the policy, with the alternate location sites, shall be posted in a prominent location at the ticket office and on Scenic Boat Tour’s website.  Also, a patron making reservations by telephone will be asked if he or she requires an accessible site.  Alternate access shall be provided from the western dock at Dinky Dock Park, located at 410 Ollie Avenue, Winter Park, Florida (Attachment B).  A sign will be displayed close to the accessible parking spaces directing patrons to the western dock within 30 days of approval and execution of this Agreement by the City Commission. A patron shall be required to give at least two non-holiday weekdays’ notice in order to schedule a tour that departs from the alternative site.  A tour may be scheduled to depart at either 9:00 AM or 5:00 PM, and other departure times may be available at Scenic Boat Tour’s discretion.  Tours may only be scheduled for the benefit of one or more disabled persons, but non-disabled persons may attend.  Tours shall be substantially identical to those offered from the main site.
15. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation and from filing a civil suit regarding all matters contained within this Agreement and its attachments, except as provided in Paragraph 16.

IMPLEMENTATION AND ENFORCEMENT

16. During the term of this Agreement, the City and Scenic Boat Tour shall provide a report every four months to the United States, from the date of the effective date of this Agreement, regarding the City and Scenic Boat Tour’s progress with respect to the completion of its responsibilities pursuant to Paragraphs 11-13 of this Agreement. The City and Scenic Boat Tours shall provide the United States with written documentation evidencing its completion of all corrective actions required by Appendix A 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. The report shall also identify and document any ADA-related policies and procedures that the City and Scenic Boat Tour have adopted.
17. The United States may review compliance with this Agreement at any time and may enforce this Agreement or file a lawsuit under title II and 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 the City and Scenic Boat Tour 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 the City and Scenic Boat Tour, the United States may institute a civil action in federal district court directly to enforce title II and III of the ADA or to enforce the terms of this Agreement.
18. 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.
19. This Agreement constitutes the entire agreement between the parties relating to USAO # 2015V05310/DJ # 202-17M-483 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.
20. This agreement shall be binding on the City and Scenic Boat Tour, their agents and employees. In the event the City or Scenic Boat Tour 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 the City and/or Scenic Boat Tour shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
21. All notices, demands, reports, 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):

22. 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, the City and Scenic Boat Tour 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.
23. This Agreement 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 City’s and Scenic Boat Tour’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
24. Neither the City nor Scenic Boat Tour shall be liable for breach of this Agreement caused by the other’s failure to meet its obligations under this Agreement or any other obligation, or to cooperate in good faith.
25. 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.
26. 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.