The parties to this Settlement Agreement ("Agreement") are the United States of America (the "United States"), Chris Karamesines and Mark Wagner ("Karamesines/Wagner"), and D.W.R.B., LLC ("D.W.R.B."). Kramesines/Wagner are the landlords who own the building located at 505 N. Dill, Muncie, Indiana ("the Property") and D.W.R.B. is the tenant who owns and operates Headliner's Bar & Grill ("Headliner's") doing business at the Property that is the subject of this Agreement.
2. Nature of Complaint.
This matter was initiated by a complaint filed with the United States concerning Headliner's, and by virtue of the Attorney General's authority to investigate alleged violations of the Americans With Disabilities Act ("ADA"). 42 U.S.C. ï½§ 12188; 28 C.F.R. ï½§ 36.502. The complaint was investigated by the U.S. Attorney's Office, Southern District of Indiana, under the authority granted by 42 U.S.C. ï½§ 12188(b).
3. Applicability of the ADA.
The ADA applies to the Headliner because it is a place of public accommodation within the meaning of 42 U.S.C. ï½§ 12181(7). This Agreement applies to both Karamesines/Wagner and D.W.R.B. because the ADA provides that both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are subject to the requirements of the ADA. 28 C.F.R. ï½§ 36.201(b).
4. Purpose of Agreement.
The purpose of this Agreement is to resolve certain ADA violations at Headliner's, set forth below, identified during the site inspection conducted by the U.S. Attorney's Office. Karamesines/Wagner and D.W.R.B. agree that they are jointly and severally responsible for resolving these violations. Karamesines/Wagner and D.W.R.B. agree to resolve these violations in a manner that is consistent with Title III of the ADA, 42 U.S.C. ï½§ï½§ 12181-89, and the Title III regulations of the Department of Justice, 28 C.F.R. Pt. 36, including the Standards for Accessible Design, Appendix A (the "Standards").
5. Actions to be Taken.
Karamesines/Wagner agree that within within 30 days of the effective date of this Agreement they will install a ramp that is in compliance with ï½§ 4.8 of the Standards to provide access to the front entrance of the Property. In addition, Karamesines/Wagner agree to take the remaining actions set forth in this sub-paragraph either by: (i) June 1, 1999, if the Property is being operated as Headliners or any other place of public accommodation, as defined in ï½§ 36.104 of the Standards; or (ii) if the Property is not being operated as a place of public accommodation on June 1, 1999, prior to the Property being so operated:
- Perform such modifications as necessary so that the door at the front entrance of the Property complies with ï½§ 4.13 of the Standards, including that the door hardware complies with ï½§ 4.13.9 of the Standards; and
- Install a uni-sex restroom in compliance with ï½§ï½§ 4.22 and A4.22 of the Standards, and as set forth in Figure 28 in ï½§ 4.16 of the Standards. As part of these modifications, Karamesines/Wagner shall: (i) ensure that the size, arrangement and number of toilet stalls complies with ï½§ 4.17.3 of the Standards; (ii) install grab bars in compliance with ï½§ 4.17.6 of the Standards; (iii) provide clear widths of all doorways in compliance with ï½§ 4.13 of the Standards; (iv) ensure that doors comply with ï½§ 4.13 of the Standards; (v) replace door hardware in compliance with ï½§ 4.13.9 of the Standards; (vi) insulate pipes under lavatories in compliance with ï½§ 4.19.4 of the Standards; (vii) lower bathroom mirrors so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with ï½§ 4.19.6 of the Standards; (viii) install flush controls and faucets in compliance with ï½§ 4.27.4 of the Standards; and (ix) install appropriate signage in compliance with ï½§ 4.30 of the Standards.
6. Future Alterations.
Karamesines/Wagner and D.W.R.B. agree that as long as they own or operate Headliner's and/or the Property future alterations undertaken at the Property shall comply with Title III of the ADA, 42 U.S.C. ï½§ï½§ 12181-89, and the Title III regulations of the Department of Justice, 28 C.F.R. Pt. 36, including the Standards.
7. Progress Report/Inspections.
Forty five days following the effective date of this Agreement, Karamesines/Wagner will submit a progress report to the United States Attorney detailing the actions taken to comply with this Agreement. Karamesines/Wagner will submit a follow-up progress report to the United States Attorney no later than June 15, 1999. This report shall include photographs of the alterations. In addition, Karamesines/Wagner and D.W.R.B. shall permit representatives of the Department of Justice to physically inspect the Property and interview Headliner's employees, all of which may be done without notice to Karamesines/Wagner and D.W.R.B.
8. Damages and Civil Penalties.
Karamesines/Wagner agree to pay: (1) monetary damages of $1,250 to complainant XX XXXX; and (2) a civil penalty of $1,250 to the United States to vindicate the public interest. D.W.R.B. agrees to pay: (1) monetary damages of $2,500 to complainant XX XXXX; and (2) a civil penalty of $2,500 to the United States to vindicate the public interest. These payments do not constitute an admission of fault on the part of Karamesines/Wagner or D.W.R.B. The foregoing monetary damages and civil penalties shall be paid by Karamesines/Wagner and D.W.R.B. within 30 days after the effective date of this Agreement by sending separate checks in the respective amounts to the U.S. Attorney's Office, Southern District of Indiana. The checks representing monetary damages to the complainant shall be payable to XX XXXX, and the checks representing civil penalties shall be payable to the United States Department of Justice.
9. Agreement not to Sue.
Provided that Karamesines/Wagner and D.W.R.B. fully comply with all terms of this Agreement, the United States will not bring a civil action to enforce the ADA as it relates to any alleged violations specifically addressed in paragraph 5 of this Agreement. However, this shall not limit the United States' ability to enforce this Agreement as set forth in paragraph 10 of this Agreement. Nor does this Agreement prevent the United States from investigating and/or pursuing other potential ADA violations that may involve Headliner and/or the Property, Karamesines/Wagner, and/or D.W.R.B. Nor does this Agreement otherwise relieve the Karamesines/Wagner or D.W.R.B. from fully complying with the ADA.
If the United States believes that this Agreement or any requirement in this Agreement has been violated, it may institute a civil action against Karamesines/Wagner and/or D.W.R.B. individually or jointly, in the Southern District of Indiana or any other appropriate court to enforce the terms of this Agreement and seek other relief. If the court finds that this Agreement has been violated, Karamesines/Wagner and/or D.W.R.B. agree that such a finding shall establish a lack of good faith on their parts, and further agree to pay, jointly and severally, a stipulated penalty equal to the maximum monetary penalty provided by 42 U.S.C. ï½§ 12188(b)(2), in addition to any other penalties or relief that may be authorized or that the court may aXXXX.
11. Successors in Interest.
In the event that Karamesines/Wagner and/or D.W.R.B. transfer, sell, assign, or otherwise release their interests in some or all of Headliner's or the Property located at 505 Dill, Muncie, Indiana, this Agreement shall be binding on all subsequent successors, assigns, owners and/or operators of Headliner's or the Property. Karamesines/Wagner and D.W.R.B. agree to notify any successor as to the existence and terms of this Agreement prior to the transfer of any interest.
Failure by the United States to enforce any provision(s) of this Agreement shall not be construed as a waiver of its right to do so with regard to any other provision(s) of this Agreement.
13. Entire Agreement.
This Agreement sets forth the complete agreement between the parties. In entering into this Agreement, neither the United States, Karamesines/Wagner, nor D.W.R.B. relies on any representation or statement not set forth herein.
14. Authority to Bind.
A signer of this document in a representative capacity for a partnership, limited partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
15. Effective Date.
The effective date of this Agreement is the date of the last signature below.
For the United States:
Judith A. Stewart
United States Attorney
Tim A. Baker
Assistant U.S. Attorney
For D.W.R.B., LLC:
(Name/title typed or printed)
For Chris Karamesines:
(Name/title typed or printed)
For Mark Wagner:
(Name/title typed or printed)