IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN ) THE UNITED STATES OF AMERICA, ) ) No.: Plaintiff ) ) v. ) ) ) COMPLAINT JAMES O. MOYES, OWNER AND OPERATOR ) OF THE BEAR LAKE TAVERN, ) a.k.a. THE BEAR LAKE INN, ) ) Defendant ) ) The United States of America alleges the following upon information and belief: 1. This action is brought by the United States pursuant to the enforcement provision of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12188 (b) (1) (B), against the owners and operators of the Bear Lake Tavern. 2. This Court has jurisdiction over this action under 42 U.S.C.  12188 (b) (1) (B) and 28 U.S.C.  1331 and 1345. 3. Venue is proper in this judicial district and division. Defendants do business in the state of Michigan, and all of the acts of discrimination alleged herein occurred in this judicial district and division. 01-06045 4. The Bear Lake Tavern, also known as the Bear Lake Inn, is located at 360 Ruddiman Avenue, North Muskegon, Michigan. It is a privately owned and operated restaurant whose operations affect commerce. 5. The Bear Lake Tavern is a place of public accommodation within the meaning of title III of the ADA, 42 U.S.C.  12181(7)(B), and the Department of Justice's title III implementing regulation ("the regulation"), 28 C.F.R.  36.104. 6. The owners and operators of the Bear Lake Tavern, including James Moyes, are public accommodations within the meaning of title III of the ADA, 42 U.S.C.  12181(7)(B), and the regulation, 28 C.F.R.  36.104. 7. Persons with mobility impairments, including persons who use wheelchairs, are individuals with disabilities within the meaning of the ADA, 42 U.S.C.  12101 et seq., and the regulation, 28 C.F.R.  36.104. 8. Paul Novoselick uses a wheelchair and is an individual with a disability within the meaning of the ADA, 42 U.S.C.  12102(2), and the regulation, 28 C.F.R.  36.104. 9. Many persons with visual impairments are individuals with disabilities within the meaning of the ADA, 42 U.S.C.  12102(2), and the regulation, 28 C.F.R.  36.104. 10. Numerous architectural barriers and communication barriers that are structural in nature ("structural communication barriers") prevent or restrict access by individuals with disabilities, including individuals who use wheelchairs and - 2 - 01-06046 persons with visual impairments, to the Bear Lake Tavern, in that several features, elements, and spaces of the Bear Lake Tavern are not accessible to or usable by individuals with disabilities, as specified in the regulation. See 28 C.F.R.  36.406 and the Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A ("the Standards"). Elements and spaces to which there are barriers to access at the Bear Lake Tavern include, but are not necessarily limited to, the toilet rooms, public pay telephone, and signage. 11. It would be readily achievable for the owners/operators of the Bear Lake Tavern to remove some or all of the architectural or structural communication barriers identified in paragraph 10. 12. The owners/operators of the Bear Lake Tavern have failed to remove architectural or structural communication barriers at the Bear Lake Tavern, except in the parking lot and the front entrance. 13. By failing to remove the architectural or structural communication barriers identified in paragraph 10 and by failing to bring the Bear Lake Tavern into compliance with the Standards where it is readily achievable to do so, the owners/operators of the Bear Lake Tavern have discriminated against persons with disabilities in violation of sections 302(a) and 302(b)(2)(A)(iv) of the ADA, 42 U.S.C.  12182(a) and 12182(b)(2)(A)(iv), and in violation of 28 C.F.R.  36.304. - 3 - 01-06047 14. By failing to take other readily achievable measures to remove the architectural and structural communication barriers identified in paragraph 10 when it is not readily achievable to comply fully with the Standards, e.g., by failing to improve access to the toilet rooms even though they are too small to provide the required amount of maneuvering space, the owners/operators of the Bear Lake Tavern have discriminated against persons with disabilities in violation of sections 302(a) and 302(b)(2)(A)(v) of the ADA, 42 U.S.C.  12182(a) and 12182(b)(2)(A)(v), and in violation of 28 C.F.R.  36.304. 15. Defendants' failure to remove the architectural and structural communication barriers identified in paragraph 10 constitutes a pattern or practice of discrimination within the meaning of 42 U.S.C.  12188 (b)(1)(B)(i) and 28 C.F.R.  36.503 (a). 16. Defendants' failure to remove the architectural and structural communication barriers identified in paragraph 10 constitutes unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503 (b). 17. Subsequent to January 26, 1992, Paul Novoselick and other individuals with disabilities have desired and attempted to enjoy the goods and services of the Bear Lake Tavern as customers. They have been prevented from doing so due to the existing architectural and structural communication barriers at the Bear Lake Tavern. They have been distressed and - 4 - 01-06048 inconvenienced thereby, and are entitled to monetary damages for their injuries, as provided for in section 308 (b) (2) (B) of the ADA, 42 U.S.C.  12188 (b) (2) (B) and C.F.R.  36.504 (a) (2). PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court: A. Declare that Defendants have violated title III of the Americans with Disabilities Act, 42 U.S.C.  12181-89, and the regulation, 28 C.F.R. pt. 36: i. by failing to bring the Bear Lake Tavern into compliance with the Standards where it is readily achievable to do so; ii. by failing to take other readily achievable measures to remove architectural barriers to access when it is not readily achievable to comply fully with the Standards; and B. Order Defendants: i. to remove architectural barriers to access at the Bear Lake Tavern to the extent that it is readily achievable to do so; ii. to take other readily achievable measures to remove architectural barriers to access when it is not readily achievable to comply fully with the Standards; and C. Assess a civil penalty against each Defendant in an amount authorized by 42 U.S.C.  12188 (b) (2) (C) to vindicate the public interest; - 5 - 01-06049 D. Award compensatory damages to Paul Novoselick and all other similarly aggrieved individuals injured by the illegal acts of discrimination committed by Defendants' and E. Order such other appropriate relief as the interests of justice may require. Respectfully Submitted, JANET RENO Attorney General By: MICHAEL HAYES DETTMER DEVAL L. PATRICK United States Attorney, Assistant Attorney General Western District of for Civil Rights Michigan DANIEL M. LAVILLE, JOHN L. WODATCH, Chief Chief of the Civil Division L. IRENE BOWEN, Deputy Chief Western District of Michigan Public Access Section 399 Federal Building Civil Rights Division 110 Michigan Street, N.W. Grand Rapids, MI 49503 Tel: (616) 456-2404 MARY LOU MOBLEY Trial Attorney Public Access Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 - 6 - 01-06050 Department of Justice FOR IMMEDIATE RELEASE CR FRIDAY, DECEMBER 30, 1994 (202) 616-2765 TDD (202) 514-1888 JUSTICE DEPARTMENT SUES MICHIGAN RESTAURANT FOR VIOLATING THE AMERICAN WITH DISABILITIES ACT WASHINGTON, D.C. -- In its first suit filed in Michigan under Title III of the Americans with Disabilities Act, the Justice Department has sued a landmark restaurant in the northern part of the state whose entrance and restrooms were not accessible. The complaint alleges that James O. Moyes, the owner of the Bear Lake Tavern in North Muskegon, failed to make his facility accessible to people with disabilities in violation of the Americans with Disabilities Act (ADA). "We want to send a clear signal that businesses of all sizes covered by the ADA have an obligation to make their facilities more accessible to individuals with disabilities," said Assistant Attorney General for Civil Rights Deval L. Patrick. "We would rather see businesses spend money on access than on attorneys fees." The Justice Department attempted to resolve the matter through negotiations for over a year. (MORE) 01-06051 -2- The suit, filed late yesterday in U.S. District Court in Grand Rapids, stems from a Justice Department investigation that was initiated after the Department received a complaint from Paul Novoselick. Novoselick, who uses a wheelchair, complained that the restaurant had no restrooms which were accessible to individuals with disabilities and that other barriers to access existed in the facility. During the investigation, and at the insistence of the Department, the owner installed a ramp leading to the restaurant's entrance, designated two accessible parking spaces and lowered the public telephone. Negotiations continue on the still unresolved issue regarding the accessibility of the restrooms and hallways. The suit seeks a court order requiring the owner to make his restaurant accessible, pay civil penalties to the U.S. treasury and pay damages to Novoselick. Title III of the ADA prohibits discrimination against persons with disabilities in public accommodation, such as restaurants. It requires that any barriers to access be removed where it is readily achievable or can be done without much difficulty or expense. # # # 94-731 01-06052 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN ) THE UNITED STATES OF AMERICA, ) ) No.: 1:94-CV-881 Plaintiff ) ) HON. RICHARD A. ENSLEN v. ) ) ) JAMES O. MOYES, OWNER AND OPERATOR ) OF THE BEAR LAKE TAVERN, ) a.k.a. THE BEAR LAKE INN, ) ) ) Defendant ) ) Consent Agreement and Order Introduction The United States has filed this action to enforce provisions of the Americans with Disabilities Act ("ADA") against James O. Moyes ("Defendant"), the owner and operator of the Bear Lake Tavern ("Tavern"), pursuant to 42 U.S.C.  12188 (b) (1) (B). The United States alleges that Defendant violated title III of the ADA, 42 U.S.C.  12181-89, and the Department of Justice's implementing regulation, 28 C.F.R. pt. 36, by failing to remove architectural barriers in the Bear Lake Tavern where removal of such barriers was readily achievable. 42 U.S.C.  12182, 28 C.F.R.  36.304. Such barriers restricted persons with disabilities from fully enjoying the Tavern's goods and services. In October 1992, the United States notified Defendant that it had received a complaint from a person who uses a wheelchair 01-06053 alleging that the Tavern was inaccessible to persons with disabilities. The United States' investigation of this complaint and its related enforcement efforts included numerous written and verbal communications with Defendant, as well as an inspection of the Tavern. During this time, in response to the complaint, Defendant designated two parking spaces as reserved for persons with disabilities, added a ramp to the front entrance, added an accessible public telephone and replaced the front doors. Defendant has not removed barriers to the toilet rooms. The United States believed that while it might not be readily achievable to bring the Tavern into complete conformance with the ADA Standards for Accessible Design ("Standards"), 28 C.F.R. pt. 36, App. A -- as is required of all newly constructed facilities -- removal of barriers to many of the Tavern's interior elements was readily achievable. The United States believed, for instance, that it was relatively inexpensive and easily accomplishable to convert the women's toilet room into an accessible unisex toilet room by adding grab bars, widening the door, and replacing a rigid privacy screen with a flexible barrier that would not unduly restrict the accessible path to the toilet rooms. The United States believed that Defendant violated the ADA by his continued refusal to remove these and other barriers, removal of which was readily achievable. In October 1994, the United States advised the Defendant that it believed him to be engaging in a pattern or practice of -2- 01-06054 discrimination against persons with disabilities within the meaning of 42 U.S.C.  12188(b) (1) (B) (i) and 28 C.F.R.  36.503(a). The United States invited the Defendant to enter into a consent decree in resolution of the complaint. The parties engaged in negotiations in an effort to resolve this dispute expeditiously and without resort to costly and protracted litigation. Defendant has agreed to remove specific existing barriers to access at the Tavern, and to provide appropriate monetary damages. For the purposes of this Consent Decree, the parties agree as follows: A. This Court has jurisdiction of this action under 42 U.S.C.  12188(b) (1) (B) and 42 U.S.C.  1331 and 1345. B. Defendant is a public accommodation within the meaning of title III of the ADA, 42 U.S.C.  12181(7) (B) and its implementing regulation, 28 C.F.R.  36.104. C. Defendant denies that his conduct as described above violates sections 302 (a) and 302 (b) (2) (A) (iv) of the ADA, 42 U.S.C.  12182 (a) and 12182 (b) (2) (A) (iv), and 28 C.F.R.  36.201 and 36.304. D. This Agreement and Order is final and binding on the parties to this action, including all principals, agents and successors in interest of the Tavern. ACCORDINGLY, IT IS ORDERED THAT: 1. Defendant shall make all barrier removal steps in compliance with the Standards, where it is readily achievable to -3- 01-06055 do so. Barrier removal work shall commence on or before January 3, 1996. Prior to commencement of work, but no later than October 31, 1995, Defendant shall provide the United States with a detailed list of all proposed barrier removal steps, including a detailed dimensioned sketch or drawing and a current itemized cost estimate. The final cost of the barrier removal steps shall not exceed the cost estimate, attached as Appendix A, by more than $200. The United States shall have 15 days from receipt of Defendant's list to notify Defendant in writing of its objections. Any objections not raised by the United States within this time period shall be deemed waived for purposes of this Agreement and Order. Disputes shall be handled as provided in paragraphs 4 and 5 below. By January 31, 1996, Defendant shall have completed the following barrier removal steps: a. converting the women's toilet room into a unisex toilet room with accessible signage, fixtures, doors, grab bars, and hardware, as each such item is addressed below. Standards  4.22.3; b. the installation of signs for the men's and unisex toilet rooms that have Braille, high contrast, and raised characters, that are installed at an accessible height. Standards  4.30. In addition, the international symbol of accessibility shall be placed at the unisex toilet room. Standards  4.30.7(1); c. the removal of the wooden privacy screen that exists outside the toilet rooms and the installation of a -4- 01-06056 flexible partition, such as a curtain, that will not unduly obstruct the accessible path to the toilet rooms. Standards  4.2.1; d. the widening of the unisex toilet room door to provide a clear opening width of 32". Standards  4.13.5; e. the reversal of the hinge placement on the unisex toilet room door from the right side of the door to the left, as viewed from outside the toilet room, to prevent the door from unnecessarily swinging into the path of travel to the unisex toilet room. Standards  4.3, 4.22.1; f. the installation of grab bars in the unisex toilet room that comply with Standards section 4.26. Standards  4.22.4, 4.16, Fig. 29; g. the replacement of the existing toilet in the unisex toilet room with a toilet whose seat measures 17"- 19" above the finished floor and which is centered 18" from the side wall. Standards  4.22.4, 4.16, Figs. 28, 29; h. the switching of the toilet and lavatory placement within the unisex toilet room to increase accessibility. Standards  4.22.3; i. the replacement of the existing lavatory in the unisex toilet room with a new lavatory that is installed at an accessible height and provides appropriate knee and foot clearance, Standards  4.19.2, Fig. 31, and on which the hot water and drain pipes are insulated or otherwise configured to protect against contact. Standards  4.19.4; -5- 01-06057 j. the repositioning or addition of toilet room mirrors, paper towel holders or electric hand dryers, and soap dispensers in the unisex toilet room at accessible heights. Standards  4.19.6, 4.22.7, 4.27.3; k. the replacement of the existing inaccessible hardware with hardware that can be operated with one hand without tight grasping, pinching, or twisting of the wrist, in the unisex toilet room elements having hardware, including the doors, toilets, lavatories, paper towel holders, and electric hand dryers, as applicable. Standards  4.22.7, 4.27.4; and 1. the repositioning of the toilet paper dispensers in the unisex toilet room beneath the newly-installed grab bars. Standards . 4.16.4, Fig. 29; and m. the removal of all items kept or stored near the wall between the men's room and the new unisex toilet room, that decrease the width of the route to the unisex toilet room. Standards  4.3. 2. Defendant agrees to pay a total of $20,000 for (a) the barrier removal steps listed in paragraphs 1(a)-(m) above, and (b) damages as detailed in paragraph 3 below. 3. The United States has identified a number of individuals with disabilities who it believes have been damaged by the Defendant's failure to remove barriers to access at the Bear Lake Tavern, and therefore, are entitled to monetary damages. The United States shall have full authority to -6- 01-06058 determine which individuals are entitled to such relief and the amount of relief each individual shall receive. The total amount of money awarded to these individuals shall not exceed the amount that remains from the $20,000 Defendant has agreed to pay after the completion of the barrier removal steps detailed above. The United States shall provide the list of individuals and dollar amounts to be paid to each individual to Parmenter O'Toole by September 1, 1996. All monetary awards shall be in the form of checks made out to each individual identified by the United States and drawn from a trust account maintained by the law firm of Parmenter O'Toole. The full amount due to each individual, as determined by the United States, shall be paid on or before October 1, 1996. Proof of payment shall be provided to the United States within thirty (30) days of payment. 4. The parties shall attempt in good faith to negotiate a resolution of any dispute relating to the interpretation or implementation of this Agreement and Order before bringing the matter to the Court's attention for resolution. 5. If the parties are not able to resolve a dispute relating to the interpretation or implementation of this Agreement and Order, the United States will have the right to immediately seek specific performance of its provisions, along with an injunction, damages, civil penalties, and other relief as approved by the Court. The amount of damages and civil penalties will not be limited to the amounts otherwise set forth in this Agreement and Order. -7- 01-06059 6. No later than February 15, 1996, the Defendant shall certify to the Department, in writing, that he has fulfilled all of his obligations under paragraph 1 of this agreement, and shall provide photographs showing the completed modifications to the former women's toilet room. 7. In the event that the Defendant 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, the Defendant 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 the Defendant for obtaining the permit or approval, or is denied, the Defendant shall promptly notify counsel for the United States. 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. 8. The United States may review compliance with this agreement at any time. If an on-site compliance review of the Tavern by the United States will unduly disturb regular business operations at the Tavern, the United States agrees to provide the Defendant with reasonable notice of its on-site compliance review. If the United States believes that the Defendant has -8- 01-06060 violated this agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from the Defendant. If the violations are not timely resolved, the United States may seek appropriate relief from this Court. If the Court makes a determination of a violation of this Consent Order, the United States shall seek a civil penalty of up to $50,000. The Court may also award damages to any person aggrieved by the violation. Failure by the Department to seek enforcement of this Consent Order with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of this Order. 9. The United States agrees that Defendant's completion of the steps set forth in this Agreement and Order will fully resolve this investigation. 10. The Court shall retain jurisdiction of this action to enforce provisions of this Agreement and Order until December 31, 1996. After such time, all of its provisions shall be terminated, unless the Court provides otherwise. 11. Compliance with this Agreement and Order does not affect Defendant's continuing responsibility to comply with all aspects of the ADA, including the employment provisions, new construction and alterations obligations, and readily achievable barrier removal obligations arising in connection with other facilities owned or operated by the Defendant. - 9 - 01-06061 12. This Agreement and Order is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the ADA or any other Federal law. Entered and Ordered this 8 day of November 1995, by: Honorable Richard A. Enslen United States District Judge Agreed and Consented to: Plaintiff: UNITED STATES OF AMERICA MICHAEL HAYES DETTMER (P12709) DEVAL L. PATRICK United States Attorney Assistant Attorney General Western District of Civil Rights Division Michigan By: DANIEL M. LAVILLE (P29133) JOHN L. WODATCH, ESQ. Chief of the Civil Division L. IRENE BOWEN, ESQ. 399 Federal Building PHYLLIS M. COHEN, ESQ. 110 Michigan Street, N.W. KAYE L. PESTAINA, ESQ. Grand Rapids, MI 49503 Civil Rights Division (616) 456-2404 U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 Defendant: JAMES O. MOYES, OWNER AND OPERATOR OF THE BEAR LAKE TAVERN, a.k.a. THE BEAR LAKE INN By: JOHN SCHRIER, ESQ. Attorney for Defendant Parmenter O'Toole 175 West Apple P.O. Box 786 Muskegon, MI 49443-0786 01-06062