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Memorandum


    Date:  September 2, 1999

Subject:  Consent Decree in the Publidc Eye Case/Press Conference

        To:  Veronica F. Coleman, United States Attorney

   From:  Gary A. Vanasek and Harriett Halmon
               Assistant U.S. Attorneys


The District Court entered our Proposed Consent Decree in the case of Deborah Cunningham and United States v. The Public Eye resolving the complaint filed by Ms. Cunningham and the complaint we filed after the Court granted our Motion to Intervene. A copy of the Consent Decree is attached. Both complaints asserted that the owner and operator of the Public Eye restaurant as well as the owners of the real estate housing the restaurant were in violation of the Americans with Disabilities Act by failing to remove certain barriers to access by persons with a disability. As authorized by the statute our complaint sought not only removal of these barriers, but also the payment of monetary damages to the original plaintiff. (It is a paradox of the statute that while it creates a private right of action allowing individuals to file suit under the ADA, such individuals are not entitled to the payment of damages unless the United States intervenes and prevails in the case.) In summary the Consent Decree provides:

  1. The owner of the Public Eye, Mr. Mitch Goldberg, will:

    1. Create a barrier free entrance to the restaurant at the south end of the building, which will require a three foot ramp to overcome a step approximately 3.5 inches.

    2. Provide appropriate signage at both entrances indicating the location of the accessible entrance.

    3. Construct a ramp to overcome a six inch step separating dining areas within the restaurant.

    4. Make renovations to the men's restroom to make it accessible and to convert it to a unisex restroom for use by females in privacy.

    5. Relocate the public telephone to a height so that it is usable by a person with a disability.

    6. Provide menus in braille or alternatively recorded on cassette tape and shall provide training to all employees on the accessible features of the restaurant and on providing assistance to individuals with disabilities as requested.

    7. Pay $1000.00 to the United States as a penalty.

  1. The parent company of the owner of the building, Southland Capital Corporation, will:

    1. Restripe three accessible parking spaces in the parking lot immediately behind the Public Eye.

  1. The owner of the building, Overton Square Investors, LLC and/or its parent corporation Southland Capital Corporation will:

    1. Make a $5,000.00 contribution to Memphis/ADAPT, an advocacy organization.

    2. Evict the Public Eye in the event Mr. Goldberg fails to remove the barriers to access as specified above within the time frames provided in the order and before reopening the premises as a place of public accommodation ensure that all requirements of Title III of the ADA are met.

As a matter of public relations we recommend that you be careful about the provision of this order requiring the eviction of the Public Eye in the event the barriers are not removed as ordered since this could be perceived as a fairly harsh result for a small business. You should know that this was the only remedy the owner of the premises would agree to as it did not want to be in the position of directly guaranteeing the removal of the barriers by being required to do the renovations itself if Mr. Goldberg failed to do so.

You will recall that some months ago we advised you that we were working on a settlement of this case and that, if successful, we would like to hold a press conference to highlight our first case enforcing the ADA. Further it has been our assumption that Ms. Cunningham could participate in such a press conference. A press conference is of some importance to Ms. Cunningham, the Executive Director of the Memphis Center for Independent Living/ADAPT since she, her organization, and the disabled community in general have been attempting to obtain compliance with the ADA by the Public Eye for a number of years. In addition while it was important to obtain compliance by this one restaurant, press coverage will help heighten awareness of the provisions of the ADA and the every day plight of disabled persons in accessing public accommodations. You indicated your general willingness to hold a press conference. We appreciate that calling such press conferences must be done with care, and we understand that the impact of the agreement we have reached in this case has its limits. If you agree, we would suggest a press conference for Wednesday September 8th on the assumption that we will have to give the press some notice after the holiday.

Updated July 25, 2008