IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 94 7252 CIV-GONZALEZ (Stamp) 94 7252 CIV-GONZALEZ (Stamp) MAGISTRATE JUD SNOW UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL NO. ) VSP PARTNERSHIP, LTD., ) LBTS PARTNERSHIP, LTD., AND ) VBTS, INC. (collectively ) FILED ILLEGIBLE D.C. d/b/a "VILLAS BY THE SEA"), ) JAN 4 1995 Defendants. CARLOS ILLEGIBLE CLERK U.S. DIST CT S.D. OF FLA. FT. LAUD CONSENT AGREEMENT AND ORDER I. Introduction The United States has filed this action to enforce title III of the Americans with Disabilities Act, 42 U.S.C.  12181 through 12189, against VSP Partnership, Ltd., LBTS Partnership, Ltd., and VBTS, Inc. The complaint allegesthat these defendants violated title III, and the Department of Justice's regulation implementing title III, 28 C.F.R. Part 36, by failing to design and carry out alterations in an accessible manner, by failing to make necessary path of travel alterations, and by failing to remove architectural barriers to access for individuals with disabilities at a hotel and resort doing business as Villas by the Sea (the "Facility"). Specifically, the complaint includes the following allegations. The defendants, which are each registered to do business in Lauderdale-by-the-Sea, Florida, collectively own, operate, or lease the Facility. At some time after January 26, (Stamp) FINAL ORDER 01-04778 1992, the defendants made alterations to the Facility and these alterations were not fully accessible to and usable by persons with disabilities. In addition, the defendants failed to make alterations to the parking area serving the altered portions of the Facility in a manner that ensured that it was readily accessible to and usable by persons with disabilities. Finally, the defendants have failed to remove architectural barriers throughout the Facility where it is readily achievable to do so. In February 1994 the Department advised the defendants' representative that the Department had found a pattern or practice of discrimination and invited them to enter into a consent agreement to be filed simultaneously with the filing of the complaint to correct the improper alterations, to make necessary path of travel changes, and to remove barriers throughout the facility. Since that time, the Department and counsel for the defendants have engaged in good faith negotiations in an effort to resolve this dispute expeditiously and without resort to costly and protracted litigation. As the result of these negotiations, the defendants have agreed to correct the alterations and path of travel violations and to remove barriers to access where such removal is readily achievable. II. Agreement of the Parties The parties agree as follows: 1. This Court has jurisdiction of this action under 42 U.S.C.  12188(b)(1)(B) and 42 U.S.C.  1321 and 1345. 2. The resort and hotel doing business as Villas by the 01-04779 Sea, 4456 El Mar Drive in Lauderdale-by-the-Sea, Florida, is a privately owned and operated entity whose operations affect commerce. 3. Each of the defendants owns, leases, leases to, or operates the Facility, such that each is a public accommodation within the meaning of title III of the ADA. 42 U.S.C.  12181(7)(A); 28 C.F.R.  36.104. 4. At some time after January 26, 1992, the defendants replaced six guestrooms in one of its buildings (the "Villa Sandy Shoes") with a restaurant, bar, and restroom facilities. These alterations were not accessible to and usable by persons with disabilities, as required by Section 303(a)(2) of the ADA and as specified in the Department of Justice's regulation at  36.402 and 36.406 and the Americans with Disabilities Act Standards for Accessible Design ("ADA Standards"), 28 C.F.R. pt. 36, app. A. Specifically, the defendants failed to, a. ensure that doors throughout the restrooms in the altered areas were accessible, provided sufficient maneuvering space, and included proper door hardware, b. design and install accessible water closets, lavatories, mirrors, toilet paper dispensers, and other elements and features, and c. provide adequate and properly located signage, including raised and brailled characters. 5. Since the defendants made these alterations, they have 3 01-04780 not altered the parking area serving the Villa Sandy Shoes building in a manner that makes it readily accessible to and usable by persons with disabilities, including persons who use wheelchairs. 6. The failure of the defendants to correctly make these alterations and path of travel modifications violates title III of the ADA, 42 U.S.C.  12181 through 12189, and its implementing regulation, 28 C.F.R. Part 36. 7. Architectural barriers prevent or restrict access to the Facility by individuals with disabilities, including individuals who use wheelchairs, in that several features, elements, and spaces of the Facility are not accessible to or usable by individuals with disabilities, as specified in the Department of Justice's title III implementing regulation ("the regulation"). See 28 C.F.R.  36.406 and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the ADA Standards"). Barriers to access at the Facility include, but are not necessarily limited to, a complete absence of guest rooms that are accessible to individuals with disabilities and an inaccessible registration desk. 8. The failure of the defendants to remove barriers to access violates title III of the ADA, 42 U.S.C.  12181 through 12189, and its implementing regulation, 28 C.F.R. Part 36. 9. Within 90 days of the entry of this Order or by January 15, 1995, whichever is later, defendants shall correct the improper alterations described in paragraph 4, above, in 4 01-04781 accordance with the ADA Standards. See 28 C.F.R.  36.406(a). 10. Within 90 days of defendants' receipt of State and local approval for modification of its parking area or by January 15, 1995, whichever is later, defendants shall provide two accessible parking spaces serving the Villa Sandy Shoes building, in accordance with ADA Standards. 11. Within 90 days of the entry of this Order or by January 15, 1995, whichever is later, the defendants shall remove barriers in the Facility by making the following readily achievable modifications at the Facility: a. installation of an auxiliary counter in the registration area of the Villa Sea Queen, complying with ADA Standards 7.2(2)(ii); b. installation of signage, complying with ADA Standards 4.1.3(8)(d), indicating the location of an accessible entrance to the Villa Sea Queen building; c. provision of an accessible route, complying with ADA Standards 4.3, to the registration desk in the Villa Sea Queen building; d. provision of an accessible route, complying with ADA Standards 4.3, to at least one of each of the following in the Facility: swimming pools, shuffle board courts, laundry and vending machine facilities, and barbecue areas located within the site occupied by the Facility; 5 01-04782 e. installation of signage at the registration area of the Villa Sea Queen, complying with ADA Standards 4.1.3(8)(d), at each inaccessible element described in paragraph 11(d) indicating the location of the nearest such accessible element at the Facility; f. provision of an accessible laundry and vending machine in at least one location at the Facility, complying with the ADA Standards 4.2; and g. provision of five additional guestrooms complying with ADA Standards 9.3.1, or equivalent facilitation, as described in ADA Standards 9.3.2. 12. The defendants shall provide, on or before June 30, 1995, an accessible guestroom with roll-in shower, complying with ADA Standards 4.21, 9.2, and figure 57. 13. The defendants shall provide two additional accessible guest rooms complying with ADA Standard 9.2, one within three years from the entry of this Order and the other within five years from the entry of this Order. 14. The defendants shall retain records of all expenses associated with barrier removal described in paragraphs 11 - 13 above. Such records shall be subject to investigation by the Department within 7 days written notice and copies of such records shall be provided by mail within 7 days written notice. 15. The parties shall attempt to negotiate a resolution of any dispute relating to the interpretation or implementation of 6 01-04783 this Order before bringing the matter to the Court's attention. 16. The Court shall retain jurisdiction of this action to enforce the provisions of this Order for 7 years from the date of this Order after which time all of its provisions shall be terminated, unless the Court determines it is necessary to extend any of the requirements imposed by this Order, in which case those specific requirements shall be extended. 17. This Order is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other federal law. This Order does not affect the continuing responsibility of any of the defendants to comply with all aspects of the Americans with Disabilities Act. Specifically, this Order does not affect the duties of the defendants with regard to new construction requirements of the Act, nor with regard to barrier removal in any other facility owned, leased, or operated by any of the defendants. 18. The defendants shall use their best efforts to insure completion of the modifications required by Paragraphs 9 - 13 of this Order within the time frames set forth in such Paragraphs; however, to the extent defendants have ordered materials or supplies to complete such modifications and the same are not available or are delivered outside the ordinary course of business, the time frames affected shall be deemed modified as necessary, but to extend no later than 120 days after the time frames stated herein, to allow defendants to complete the 7 01-04784 modifications within a reasonable amount of time. 19. The United States may review compliance with this agreement at any time. If the United States believes that the defendants have violated this agreement or any requirement contained herein, it may institute a civil action in any federal district court. If the Court makes a determination of a violation of this Order, the Court may order defendants to pay a civil penalty for each such violation. The amount of the penalty shall be within the Court's discretion. The Court may also award damages. 20. Failure by the Department of Justice to seek enforcement of this Order with regard to one provision shall not be construed as a waiver of its right to do wo with regard to the same or other provisions of this Order. 21. This case is administratively closed, but the Court shall retain jurisdiction of this action to enforce the provisions of this Order for 7 years from the date of this Order after which time all of its provisions shall be terminted, unless the Court determines it is necessary to extend any of the requirements imposed by this Order, in which case those specific requirements shall be extended. 8 01-04785 III. Conclusion Having reviewed the foregoing, this Court hereby ORDERS that this agreement be made binding on the parties to this matter as if it were an Order of this Court. SO ORDERED this 3rd day of January, 1995. (Signature) ___________________________ United States District Judge Agreed and Consented to: For Plaintiff United States of America: (Signature) _________________________ L. IRENE BOWEN KEN S. NAKATA Public Access Section Civil Rights Division U.S. Department of Justice P.O. Box 66738-6738 Washington, D.C. 20035 Tel: (202) 307-2232 For Defendant VSP Limited Partnership: (Signature) ___________________________ For Defendant LBTS Limited Partnership: (Signature) ____________________________ For Defendant VBTS Corporation: (Signature) ____________________________ 9 01-04786