- This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. ï½§ï½§ 12181-12189 ("ADA"), with the United States Department of Justice against Sharky's. The complainant alleged that Sharky's had violated title III of the ADA and the Department of Justice's implementing regulation, 28 C.F.R. Part 36 ï½§ 36.201, by denying complainant, a disabled customer, the full and equal enjoyment of the goods, services, facilities, privileges and accommodations of a place of public accommodation, i.e., denying her access to its facility because complainant is wheelchair bound.
- The parties are willing to enter into this Settlement Agreement as a means of resolving the complaint and to avoid the burdens and expenses of further investigation and possible litigation. It is understood that this Settlement Agreement does not constitute an admission by Jose Luis Cruz, owner and operator of Sharky's, of any violation of the ADA or its implementing regulations nor of any other Federal, state or local law. In furtherance of this Settlement Agreement, the parties hereby agree as follows:
- The ADA authorized the Department of Justice to investigate alleged violations of title III. 42 U.S.C. ï½§ 12188(b)(1). The Department of Justice is also authorized to commence a civil action in United States district courtin any case that involves a pattern or practice of discrimination or that raises issues of general public importance, and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. ï½§ï½§ 12188(a)(2) and 12188(b). In consideration of the terms of this Agreement as set forth herein, the Department of Justice agrees to refrain from undertaking further investigation or from filing civil suit in this matter.
- Jose Luis Cruz, owner and operator of Sharky's, located in Bakersfield, California, is a bar and a place of entertainment, (i.e., it provides live entertainment from time to time) operated by a private entity, and its operations affect commerce. It is, therefore, a place of public accommodation covered by title III of the ADA. 42 U.S.C. ï½§ 12181(7)(B)(C).
- The subject of this Settlement Agreement is to establish an American's with Disabilities Act compliance policy for Jose Luis Cruz, owner and operator of Sharky's which offers its goods and services to afford individuals with disabilities the opportunity to participate in or benefit from goods, services, facilities, privileges, advantages, and accommodations and to ensure that those goods, services, facilities, privileges, advantages, and accommodations are equal to those afforded to other individuals consistent with Jose Luis Cruz's, owner and operator of Sharky's, obligation under 42 U.S.C. ï½§ 12182(b)(1)(A)(i) and (ii).
- Jose Luis Cruz, owner and operator of Sharky's, will post in a conspicuous place visible to customers its "Policy on Compliance with the Americans with Disabilities Act," attached hereto, and made a part hereof, and distribute it to all appropriate personnel, including managers and anyone controlling access to Sharky's facilities, within 10 days of the effective date of this Agreement. All new personnel will be provided with the policy upon beginning employment. The policy will be re-distributed to all appropriate personnel on an annual basis.
Implementation and Enforcement of the Agreement
- This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person. Jose Luis Cruz, owner and operator of Sharky's, shall provide a copy of this Agreement to any person on request.
- The Department of Justice may review compliance with this Agreement at any time. If the Department of Justice believes that this Agreement or any requirement thereof has been violated, it may institute a civil action in Federal district court seeking specific performance of this Agreement or enforcement of title III of the Americans with Disabilities Act.
- Failure by the Department of Justice to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
- The effective date of this Agreement is the date of the last signature below.
- This Agreement 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. Failure to comply with this agreement, or another allegation of similar exclusion, will constitute a violation within 42 U.S.C. 12188(b)(2)(C)(ii).
- This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other Federal law. This Agreement does not affect Jose Luis Cruz's, owner and operator of Sharky's, continuing responsibilities to comply with all aspects of title III of the ADA.
- The signer of this document represents that he is authorized to bind Jose Luis Cruz, owner and operator of Sharky's, to this Agreement. This Agreement shall be binding on Jose Luis Cruz, owner and operator of Sharky's, and its successors in interest. Jose Luis Cruz, owner and operator of Sharky's, agrees to notify its successor in interest of this Agreement.
JOSE LUIS CRUZ
Owner and Operator of Sharky's
For the United States:
PAUL L. SEAVE
United States Attorney
MICHAEL A. HIRST
Assistant United States Attorney
Chief, Affirmative Civil Litigation