SETTLEMENT AGREEMENT
between
THE UNITED STATES OF AMERICA
and
WHEN PIGS FLY BBQ PIT
DJ # 202-53-67

I. INTRODUCTION

1. The parties to this Settlement Agreement are the United States of America and the ZEBRO’s III Corporation, d/b/a When Pigs Fly Barbeque Pit (“WPF”), located at 8254 First Street, Westfield, New York 14787.
2. The United States Department of Justice (the “Department”) is responsible for enforcing title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing title III, 28 C.F.R. pt. 36.
3. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. 36.201(a).
4. WPF is a restaurant and bar that operates in a lakeside resort town on the shores of Lake Erie in upstate New York.  WPF operates on a seasonal basis and is generally open from mid-April through mid-November on a full time basis, and on weekends in the off-season, weather permitting.  WPF is open to the public and is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7)(b) and 28 C.F.R. § 36.104.

II. BACKGROUND

5. This matter was initiated by a complaint filed under title III of the ADA with the Department.
6. The complainant is a veteran with post-traumatic stress disorder (“PTSD”) and anxiety, and uses a service animal. The complainant is an individual with disabilities, within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.105.
7. As a veteran with PTSD, the complainant celebrates Independence Day early to avoid fireworks and crowds that can trigger his PTSD.  On July 2, 2017, as the complainant and his family were about to be seated in WPF’s main dining room for a quiet holiday dinner, the owner physically blocked their access and refused to seat the family, because the complainant was accompanied by his service dog.  The owner said the dog could not come into the dining room.  The owner escorted the family outside and around the main building to a crowded outdoor patio space, where a band was playing loud music.
8. Because of the denial of access to the dining room, the complainant and members of the complainant’s family felt humiliated in front of other customers and restaurant staff and experienced emotional distress.
9. WPF admits that it did not permit the complainant and his family to dine in the dining room of the restaurant because of the service dog, and claims that it did not know that the dog was a service dog.
10. The parties wish to amicably resolve this matter without litigation.  The United States believes that resolution of this matter through this Agreement is in the public interest.  In consideration of, and consistent with, the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit under title III in this matter, except as provided in the Implementation section of this Agreement.

III. REMEDIAL ACTION

11. Consistent with title III of the ADA, WPF shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of the services it provides by excluding or providing unequal treatment to persons with disabilities, including those who use service animals. 42 U.S.C § 12182; 28 C.F.R. §§ 36.201, 36.202. Specifically, WPF shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 42 U.S.C. §12182(b)(2)(A); 28 C.F.R. §§ 36.302(a), (c).
12. Service Animal Policy: WPF agrees that persons with disabilities, including those accompanied by service animals, will be welcome in the restaurant at WPF.  WPF agrees to adopt and abide by the Service Animal Policy (Attachment A) attached to this Agreement.  WPF shall not refuse to admit a person with a disability because that person uses a service animal.  It also shall not charge a person with a disability any extra fee or ask a person with a disability to comply with any additional condition of service because they use a service animal.
13. Publication of Policy:  WPF agrees to prominently post the Service Animal Policy in its restaurant and on its website.  WPF will also post a statement in all future advertising that states WPF complies with the ADA and welcomes service dogs.  WPF shall provide a copy of the notice to the United States within ten (10) days of posting.
14. Training: WPF owners, management and staff shall undergo training regarding the ADA requirements to accommodate individuals with disabilities who use service animals¸ including a review of the Department’s technical assistance document, Frequently Asked Questions About Service Animals and the ADA, available at: https://archive.ada.gov/regs2010/service_animal_qa.html.  WPF shall arrange for and ensure that appropriate training on the ADA and service animals is conducted within one hundred twenty (120) days of the effective date of this Agreement.  Thereafter, all new employees will be trained on the requirements of the ADA within thirty (30) days of their hire date.  WPF will notify the Department when it has completed this training.
15. WPF shall not retaliate against or otherwise coerce any individual with a disability who uses a service dog for filing a complaint with the Department or otherwise exercising rights protected by the ADA. 42 U.S.C. § 12203(a).

IV. IMPLEMENTATION

16. This Settlement Agreement cannot be modified or amended except in writing, agreed to by the Parties.
17. The United States may review compliance with this Agreement at any time.  If the United States believes that this Agreement or any portion of it has been violated, it will raise concerns with WPF and the parties will attempt to resolve the concerns in good faith.  If the parties are unable to reach a satisfactory resolution of the issue(s) raised within thirty (30) days of the date that the United States provides notice to WPF, the United States may institute a civil action in the appropriate Federal District Court to enforce this Agreement or the requirements of title III.
18. It is a violation of this Agreement for WPF to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the United States for an extension of the relevant timeframe imposed by the Agreement.
19. Failure by the United States to enforce any provision or deadline in this Agreement shall not be construed as a waiver of the United States’ right to enforce any deadline or provision of this Agreement. The Agreement, including Attachment A, constitutes the entire agreement between 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.
20. This Agreement is limited to the facts set forth above and does not purport to remedy or resolve any other existing or potential violations of the ADA or any other local or Federal law.
21. This Agreement does not affect WPF’s continuing responsibility to comply with all applicable aspects of title III of the ADA.
22. A copy of this document or any information contained in it will be made available to any person by WPF or the United States on request.
23. The effective date of this Agreement is the date of the last signature below.  This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
24. The provisions of this Settlement Agreement shall be deemed severable, and any invalidity or unenforceability of any one or more of its provisions shall not affect the validity or enforceability of the other provisions herein.
25. The person signing this Agreement for WPF represents that he is authorized to bind WPF to this Agreement.

Attachment A

POLICY REGARDING INDIVIDUALS WITH DISABILITIES AND SERVICE ANIMALS

When Pigs Fly BBQ is committed to providing service to customers with disabilities, including those individuals with disabilities who are accompanied by a service animal, in compliance with the Americans with Disabilities Act (ADA).  Service animals play an important role in ensuring the independence of people with disabilities.  WPF welcomes customers who use service animals.

What is a Service Animal?

“Service animal” means any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.  Service animals come in all breeds and sizes.  A service animal may be trained either by an organization or by an individual with a disability, need not be certified or licensed, and provide a wide range of services that may or may not be identifiable, including but not limited to:

• assisting individuals who are blind or have low vision with navigation and other tasks;
• alerting individuals who are deaf or hard of hearing to the presence of people or sounds;
• pulling a wheelchair;
• assisting an individual during a seizure or alerting individuals to the presence of allergens;
• providing physical support and assistance with balance and stability to individuals with mobility disabilities; and
• helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Requirements with Regard to Service Animals

WPF may ask the person who has the animal if it is a service animal required because of a disability, and what service the animal is trained to perform.  WPF may not ask an individual with a disability for proof of his or her disability or for any information about his or her disability, nor may WPF require proof or certification of the animal’s training or vaccination.  Service animals do not always have a sign, symbol, or harness indicating they are service animals.

Limited Exceptions

When Pigs Fly BBQ has the right to exclude a service animal from the restaurant only if the animal is out of control and the animal’s handler does not take effective action to control it or the animal is not housebroken.  When Pigs Fly BBQ may not refuse service to an individual with a disability who may normally be accompanied by a service animal, when he is not accompanied by the service animal.