Settlement Agreement Under The Americans With Disabilities Act Between The United States Of America And The Landlord, Owners And Operators Of The Best Western Marina Park Hotel, In Miami, Florida For Complaint Dj 202-18-64

Background

  1. This matter was initiated by a complaint filed with the United States Department of Justice ("the Department") against the Best Western Marina Park Hotel, located at 340 Biscayne Boulevard, Miami, Florida ("the Hotel"). The complaint was investigated by the United States Attorney's Office, Southern District of Florida by referral from the Disabilities Right Section of the Civil Rights Division of the United States Department of Justice, under the authority granted by Section 308(b) of the Americans with Disabilities Act ("ADA" or "the Act"), 42 U.S.C. ｧ 12188. The complaint alleges that the Hotel is operating in violation of the ADA because its landlord, owners and operators have failed to remove architectural barriers where such removal was readily achievable.

The Parties

  1. The parties to this Agreement are the United States of America and the landlord, owners and operators of the Best Western Marina Park Hotel in Miami, Florida.
  2. The parties desire to avoid costly and protracted litigation, and agree that the complaint should be resolved in accordance with the terms outlined below.
  3. The Best Western Hotel (the "Hotel") is located at 340 Biscayne Boulevard, Miami, Florida. The Hotel has 199 guest rooms.
  4. The Best Western Hotel is owned by Marina Park Inn, Co. (The "Owner") and is a corporation incorporated under the laws of the State of Florida.
  5. Marina Park Hotel Management, Inc. (The "Lessee") is the tenant and leases and operates the subject premises pursuant to an agreement with the Owner. The Lessee is a corporation incorporated under the laws of the State of Florida.
  6. The term "Operators" refers to the entire chain of ownership and/or operation of the Hotel as set forth in paragraphs 5 and 6.

Jurisdiction

  1. The ADA applies to the Hotel because it is a public accommodation as defined in section 301(7)(A) of the Act and section 36.104 of the Department's implementing regulation. 42 U.S.C. ｧ 12181; 28 C.F.R. ｧ 36.104.
  2. The subject of this settlement agreement is the provision of auxiliary aids and services for guests who are deaf or hard of hearing, and the removal of architectural barriers throughout the Hotel, including, but not limited to, the parking lot, back entrance, lobby, restrooms, restaurants, guest rooms, and other spaces of the Hotel.

Factual History

  1. Subsequent to January 26, 1992, the Hotel operated with a back entrance, lobby, guest rooms, and other spaces that allegedly did not comply with certain provisions of the ADA requiring accessibility to persons with disabilities, including those who use wheelchairs.
  2. The Department received a complaint on January 24, 1996, from an individual with a disability, alleging that the Hotel was not in compliance with the ADA, because it had failed to make modifications to its guest rooms to make them accessible for wheelchair users; had failed to provide telecommunication devices for the deaf ("TDDs") or other auxiliary aids; and had failed to remove barriers to access its front entrance.
  3. On June 18, 1997, representatives of the Department visited and conducted a formal inspection of the Hotel and observed that it had numerous architectural barriers. In addition, the representatives observed that the Hotel lacked sufficient auxiliary aids and services for guests who are deaf or hard of hearing.
  4. As of June 18, 1997, the conditions at the Hotel that the Department found deficient were as follows:
    1. The back entrance was not accessible to people with certain mobility impairments, including those who use wheelchairs. The back entrance had an inaccessible ramp.
    2. The public restrooms serving the lobby and restaurant were not accessible to persons with certain mobility impairments, including those who use wheelchairs.
    3. There were no guest rooms designated by the Operators of the Hotel as accessible to persons with disabilities. All rooms (except suites) contained architectural and communication barriers to entry, and lacked auxiliary aids.
    4. The Hotel's guest rooms were inaccessible to people who are deaf or hard ofhearing, and lacked auxiliary aids. None of the rooms were equipped with visual fire alarms and TDDs. In addition, the Operators of the Hotel did not have visual door knock and telephone call indicators, or telephone handsets for persons with hearing impairments. However, all rooms were equipped with closed-caption televisions.
    5. The Hotel's permanent signs were not accessible to people who are blind or visually impaired. These signs were not equipped with raised or braille characters.
    6. The store located in the lobby was inaccessible to persons with certain mobility impairments, including those who use wheelchairs, because the point of entry, and interior floor area was too narrow for people with certain mobility impairments.
  5. On December 19, 1997, the Operators of the Hotel agreed to rectify the deficiencies noted by the Department under the ADA and to enter into a settlement agreement with the Department. On January 30, 1998, the Operations of the Hotel met with the Department and agreed to undertake the actions set forth in the instant Settlement Agreement, according to the terms and conditions set forth herein. The Operators of the Hotel submitted a site plan, prepared by their architects, Akdoruk Shather & Associates, Inc. ("ASA"), designed to bring the Hotel into compliance with the ADA. A copy of the site plan is attached hereto and incorporated by reference into this Agreement. (See Attachment "A").
  6. The Operators of the Hotel have agreed with the Department to take various short and long term actions, as outlined in Attachment "A" and herein, to remove barriers to accessibility by December 31, 1998 or within six (6) months of the issuance of all construction permits by the appropriate governmental bodies (whichever is later). In summary, the Operators of the Hotel have agreed:
    1. To provide two (2) accessible parking spaces (one van accessible and one auto accessible) and access to the Hotel from the parking lot, through the use of a ramp off the pool area.
    2. To undertake barrier removal in the public restrooms located between the lobby restaurant and the pool area on the ground floor. These renovations are to be performed in accordance with the designs set forth in the blueprints attached as Attachment "A."
    3. To modify six (6) guest rooms in order to remove certain physical and communication barriers to make them fully accessible for persons with hearing and/or mobility impairments.
    4. To modify six (6) additional guest rooms with visual smoke alarms, visual door knock and telephone indicators, and telephone handset amplifiers in order to remove certain communication barriers and make them accessible to people who are deaf or hard of hearing.
    5. To purchase and have six (6) TDDs available at the front desk for guests, and to maintain one additional TDD at the front desk to communicate with guests.
    6. To install all appropriate permanent and informational signage, including signage in accordance with Section 4.1 of the Guidelines, and as set forth in "Attachment A".
    7. To have a TDD telephone available at the front desk for use by ''the public'' at public telephone banks located within the lobby of the Hotel.
  7. The parties agree that the modifications outlined in Attachment "A" to remove barriers of the Hotel, as summarized in paragraph 15 and described in more detail below, are readily achievable. In addition, the parties agree that the provision of auxiliary aids outlined in paragraph 15 is not an undue burden. The Operators of the Hotel further agree to continue to keep in place and maintain in good operating order those items specified in paragraph 15, for as long as such items are required by applicable law and the Operators of the Hotel or their successors in interest own or operate the facility that is the subject of this Agreement, or until the Operators of the Hotel make modifications consistent with the more stringent new construction standards set forth in the Americans with Disabilities Act Accessibility Guidelines as provided elsewhere in this Agreement. This provision shall not in any way excuse the Hotel from making further modifications to comply with the ADA if the standards set forth in the Guidelines change.

Actions to be Taken by the Operators of the Hotel

BACK ENTRANCE

  1. The parties agree that it is readily achievable to remove barriers to access at the back entrance to the Hotel.
  2. In order to remove barriers to access located at the back entrance to the Hotel and thereby bring the back entrance into compliance with the ADA, the Operators of the Hotel agree:
    1. To install a permanent ramp at the back entrance to the Hotel. The ramp will be constructed in accordance with the blueprints and plans attached hereto as Attachment "A."
    2. To indicate the location of the ramp installed in accordance with paragraph 18a, through the use of appropriate signage both inside and outside the Hotel. The signage is to comply with the requirements for permanent signage set forth at section 4.30 of the Guidelines.
    3. To maintain the ramp installed in accordance with paragraph 18.a. in good working condition and to keep it clear of debris or any other items that may interfere with its use by persons with disabilities, including those who use wheelchairs.
    4. To maintain a clear pathway of at least 32 inches width on the outdoor ramp that is to be installed in accordance with paragraph 18a, and the landing of the back entrance.
    5. To keep the back entrance open for independent entrance and exit during the same times as entrances are open for all other persons. In addition, the Operators of the Hotel agree to maintain this entrance in good working condition and to keep it clear of debris or any other items that would interfere with its use by persons with disabilities, including those who use wheelchairs. Implementation of paragraphs 18c, 18d, and 18e of this Agreement will include appropriate instructions to staff.
    6. To commence the actions specified in paragraphs 18c, 18d and 18e on the effective date of this Agreement contingent on the issuance of all required permits and approvals by the appropriate local authorities and to continue these policies and actions for as long as the Operators of the Hotel or their successors in interest own or operate the Hotel.
    7. To instruct all their employees to assist individuals with disabilities who request assistance in entering the Hotel.
    8. To complete the actions specified in paragraphs 18a and 18b on or before September 30, 1998, or within four months of the issuance of all required permits and approvals by the appropriate local authorities (whichever is later).

THE PUBLIC RESTROOMS

  1. The parties agree that it is readily achievable to remove barriers to access in the men's and women's restrooms located on the ground floor between the restaurant and the pool area. In order to remove barriers to access in these men's and women's restrooms, and thereby bring them into compliance with the ADA, Operators of the Hotel agree to paragraphs 20 through 22 below.
  2. The Operators of the Hotel agree to modify the men's restroom on the ground floor between the restaurant and the pool area of the Hotel to make it accessible to people with certain mobility impairments, including those who use wheelchairs. This restroom is to be modified in accordance with the blueprints and plans attached hereto as Attachment "A."
  3. The Operators of the Hotel agree to modify the women's restroom on the ground floor between the restaurant and the pool area of the Hotel to make it accessible to people with certain mobility impairments, including those who use wheelchairs. This restroom is to be modified in accordance with the blueprints and plans attached hereto as Attachment "A."
  4. The Operators of the Hotel agree to complete the modifications to the restrooms on the ground floor between the restaurant and pool area, as specified in paragraphs 20 and 21, on or before September 30, 1998, or within four (4) months of the issuance of all required permits and approvals by the appropriate local authorities (whichever is later).

THE PUBLIC TELEPHONES

  1. The Operators of the Hotel agree to modify at least one telephone in the lobby to be accessible to persons with disabilities, including those who use wheelchairs. The telephone designated to be accessible will comply with the standards set forth in section 4.31 of the Guidelines.
  2. The Operators of the Hotel agree to maintain and provide without cost a portable TDD for use at the public telephone bank located on the ground floor between the restaurant and the pool area within the Hoteland to make all required electrical and physical modifications to the public telephone bank to accommodate the TDD (including a shelf for the TDD). This TDD is to be available at the front desk.
  3. The Operators of the Hotel agree to indicate the location of the accessible public telephone through the use of appropriate signage in the lobby. This signage is to comply with the new construction standards for informational signage set forth in section 4.30 of the Guidelines.
  4. The Operators of the Hotel agree to complete the actions specified in paragraphs 23 through 25 on or before September 30, 1998, or within four months of the issuance of all required permits and approvals by the appropriate local authorities (whichever is later).
  5. The Operators of the Hotel agree to maintain those telephones modified in accordance with paragraphs 23 through 25. This includes, but is not limited to, acquiring appropriate contracts for service, maintenance, and prompt repair of the telephones. This maintenance is to begin on or before the date on which the modifications required by paragraphs 23 through 25 are completed but no later than September 30, 1998 or within four months of the issuance of all required permits and approvals by the appropriate local authorities (whichever is later). These actions are to continue for as long as the Operators of the Hotel or their successors in interest own or operate the Hotel and such telephones are required by applicable law.

THE GUEST ROOMS

Accessible Units

  1. The parties agree that it is readily achievable to remove barriers to access to people, with disabilities, including those who use wheelchairs, in six (6) of the guest rooms in the Hotel.
  2. In order to remove barriers to access in the Hotel's guest rooms, and thereby bring the guest rooms into compliance with the ADA, the Operators of the Hotel agree:
    1. To modify six (6) guest rooms in order to make them accessible to persons with certain hearing and mobility impairments, including those who use wheelchairs. These guest rooms are to be modified in accordance with Attachment "A." Two (2) of these rooms are to be equipped with roll-in showers.
    2. That the rooms modified to be accessible to persons with physical disabilities, including those who use wheelchairs in accordance with paragraph 29a, will be completed in accordance with this Agreement. The six (6) rooms, including the two (2) that will be equipped with roll-in showers, will be modified as set forth in Attachment "A."

Units For People With Hearing Impairments

  1. The parties agree that it is readily achievable to remove communication barriers from an additional six (6) guest rooms to make them accessible to persons who are deaf or hard of hearing in accordance with Attachment "A." These six (6) rooms shall be in addition to the rooms that are to be modified to be accessible to persons with physical disabilities in accordance with paragraphs 29a and 29b.
  2. In order to provide rooms accessible to and usable by persons who are deaf or hard of hearing and thereby bring the guest rooms into compliance with the ADA, the Operators of the Hotel agree:
    1. To modify six (6) guest rooms for use by persons who are deaf or hard ofhearing. These six (6) rooms will be equipped with visual smoke alarms, visual door knock and telephone indicators, and telephone handset amplifiers and are to comply with the new construction standards regarding the provision of auxiliary aids and services, set forth in Section 9.3 of the Guidelines and Section 36.303 of the regulation.
    2. To make available to guests six (6) TDDs. One additional TDD will be installed at the front desk so that persons who are deaf or hard of hearing can contact the desk to request services.
    3. To provide the TDDs acquired in accordance with paragraph 31b, to guests who are deaf or hard of hearing, upon request. These guests will not be required to provide proof that they require the use of these devices.
    4. To provide signage at the front desk informing persons who are deaf or hard of hearing that the Hotel has rooms equipped for their use as well as TDDs. This signage is to be readily accessible to and usable by people who are visually impaired and is to be consistent with the new construction standards set forth at sections 4.30.1, 4.30.2, 4.30.3, and 4.30.5 of the Guidelines.
    5. To maintain the devices acquired in accordance with paragraphs 31a and 31b in good working condition. This includes, but is not limited to, acquiring appropriate contracts for service, maintenance, and prompt repair of the devices.
  3. The Operators of the Hotel agree that the guest rooms modified in accordance with paragraphs 29a and 31a will include each type and price of guest room offered at the Hotel as set forth in Attachment "A."
  4. The Operators of the Hotel agree that they will institute a written policy that all guest rooms equipped for persons with disabilities will be given to persons with disabilities upon request. This policy shall specify that these rooms can be rented to people who do not have disabilities only in the event that all the non-accessible rooms in the Hotel are taken or reserved. In addition, this policy is to specify that persons with disabilities are to be allowed to reserve and guarantee rooms in the same fashion in which all other rooms are reserved. This includes, but is not limited to, reservations made by telephone or through travel agents or tour groups.
  5. The Operators of the Hotel agree that in the event that a person with a disability accessible requests a room in a price range in which there are no accessible rooms remaining, that person must be given an accessible guest room that is of the next higher price range at which a guest room that is accessible to persons with disabilities is available. This more expensive guest room must be rented at the price of the room originally requested by the person with a disability.
  6. The Operators of the Hotel agree to institute a written policy requiring that they relocate persons without disabilities who occupy rooms designated as accessible to people with disabilities, to other rooms, in the event that other rooms become available and a person with a disability requests an accessible room, and no other accessible rooms are available.
  7. The Operators of the Hotel agree that the actions specified in paragraphs 31a, 31b, and 31d, will be completed on or before December 31, 1998, or within six months of the issuance of all required permits and approvals by the appropriate local authorities (whichever is later).
  8. The Operators of the Hotel agree that the actions specified in paragraphs 31c, 31e, and 32 through 34 will be commenced on or before December 31, 1998, or within six months of the issuance of all required permits and approvals by local authorities (whichever is later), and will continue for as long as the Operators of the Hotel or their successors in interest operate the facility that is the subject of this Agreement.

Gift Shop

  1. In lieu of removing physical barriers to the gift shop, the Operators of the Hotel agree to notify persons with disabilities that products available at the gift shop may be purchased through the front desk and delivered to their rooms upon request at no charge.

Notification Requirements

  1. The Operators of the Hotel agree that as of the effective date of this Agreement, its employees will inform all persons who inquire, including those with disabilities, of the barrier removal requirements of this Agreement, including the times when such work will be completed.
  2. The Operators of the Hotel agree that, beginning on the effective date of this Agreement, they will notify the Hotel's guests and potential guests through reasonable means that the Hotel has undertaken a program of alterations to make the Hotel accessible to people with disabilities, including those who use wheelchairs.
  3. The Operators of the Hotel agree to commence the actions required in paragraphs 39 and 40 on the effective date of this Agreement, subject to the issuance of the required permits and approvals by the appropriate local authorities.

Implementation and Enforcement of the Settlement Agreement

  1. The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the Act, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit under Title III in this matter.
  2. The Department may review compliance with this Agreement at any time. If the Department believes that any material requirement of this Agreement has been violated, it may institute a civil action. However, prior to instituting any civil action, the Department will provide the Landlord, Tenant, and Operators thirty (30) days to cure any violations of this Agreement.
  3. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement.
  4. In the event that the Operators of the Hotel fail to comply in a timely fashion with any material requirement of this Agreement without obtaining sufficient advance written agreement with the Department as to a temporary modification of the relevant terms of the Agreement, all terms of this Agreement shall become enforceable in United States District Court.
  5. This document is a public agreement. A copy of this document or any information contained in it may be made available to any person.
  6. The effective date of this Agreement is the date of the last signature below. This Agreement shall be binding on all of the landlord, owners and Operators of the Hotel and their successors in interest, and the Operators of the Hotel have a duty to so notify all such successors in interest.
  7. This Agreement and the plans attached hereto as Attachment "A" constitute 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, shall be enforceable. This Agreement is intended to remedy the violations of the Americans with Disabilities Act perceived by the Department. This Agreement does not affect the continuing responsibility of the Operators of the Hotel to comply with all aspects of the Americans with Disabilities Act. Specifically, this Agreement does not affect the duties of the Operators of the Hotel with regard to the alterations and new construction requirements of the Act, nor with regard to barrier removal in other parts of the Hotel not mentioned herein or in any other facility owned and/or operated by the Operators of the Hotel.
  8. The parties agree, that where reduced-sized blueprints, drawings and plans are attached hereto as attachments, they are merely representative of full-sized blueprints, drawings, and plans, copies of which are to be maintained by each party. In the event of a discrepancy between a full-sized blueprint, drawing, or plan and a reduced-sized version of the same document, the full-sized version is to be considered authoritative.
  9. The parties agree that, if any provision of this Agreement is affected by any future proceeding in bankruptcy, the parties shall jointly apply to the district court for withdrawal to the district court for resolution of the matter.
  10. In entering into this Agreement, the Owner, the Lessee, and the Operators do not admit, and specifically deny that they, or any of them, violated the Americans with Disabilities Act or any other federal, state, or local law.
  11. A signer of this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
  12. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one single Agreement.

For the Owner and Landlord of the Best Western
Marina Park Hotel, Marina Park Inn Co.



By:__________________________        Date:____________
   Benoist Castera
   Vice-President and CFO

For United States:

Thomas E. Scott
United States Attorney



By:__________________________        Date:____________
   Veronica Harrell-James
   Assistant U.S. Attorney
   99 N. E 4th Street, #81l
   Miami, Florida 33132
   (305) 961-9003
   (305) 536-4675 (facsimile)
   Florida Bar No. 644791

For the Tenant/Operator
of the Best Western Marina Park Hotel
Marina Park Hotel Management, Inc.

By:__________________________        Date:____________
   John F. Lehodey
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Updated August 6, 2015

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