United States Attorney's Office District Of Maine

UNITED STATES OF AMERICA

v.

ROBCO, INC.

U.S. Attorney No. 1998-

SETTLEMENT AGREEMENT REGARDING ACCESS FOR INDIVIDUALS WITH DISABILITIES TO THE WENDY'S RESTAURANT IN SANFORD, MAINE

I. THE PARTIES AND CIVIL RIGHTS STATUTES

1. The parties to this Settlement Agreement are the United States of America and Robco, Inc., the franchisee of the Wendy's restaurant located at 518 Main Street, Sanford, Maine 04073. The parties hereby agree as follows:

2. This Agreement is reached under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. and its implementing regulations (including the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A ("Standards")).

II. FACTS

3. Robco, Inc. is incorporated under the laws of the State of Maine, and does business in Maine. Robco, Inc. owns and manages a restaurant in Sanford, Maine that uses the trade names "Wendy's" and "Wendy's Old Fashioned Hamburgers."

4. "Robco Restaurants" means all restaurants in Maine that are owned, leased, or managed by Robco, Inc., except for those company-owned restaurants which are operated by Wendy's International, Inc. The only Robco Restaurant to date is located at 518 Main Street, Sanford, Maine 04073.

5. All Robco Restaurants are places of public accommodation within the meaning of 42 U.S.C. § 12181(7)(B), (E) and 28 C.F.R. § 36.104. Robco Restaurants are likewise a public accommodation within the meaning of 42 U.S.C. § 12182(a) and 28 C.F.R. § 36.201(a), as Robco, Inc. owns, leases, leases to, or manages all Robco Restaurants.

6. Barriers to access discovered by the United States of America include, but are not limited to, queue lines where customers line up to wait to order food ("Customer Queues"). The U.S. Department of Justice maintains these Customer Queues lack sufficient width or turning space for wheelchairs, and therefore violate the ADA.

7. The U.S. Department of Justice maintains the Customer Queues are barriers to access and constitute violations of the ADA. Robco, Inc. does not acknowledge any wrongdoing or violation of the ADA. The parties have nonetheless determined their respective interests can be met without engaging in protracted litigation, and this Agreement is entered into in order to provide access to persons with disabilities and avoid the costs as well as the burdens of litigation.

8. Robco, Inc. maintains it is fully committed to compliance with the terms of this settlement agreement and further agrees it will be fully committed to compliance with the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

III. NEWLY CONSTRUCTED RESTAURANTS

9. For all Robco Restaurants constructed after the ADA effective dates for new construction (28 C.F.R. § 36.401(a)) ("Newly Constructed Restaurants"), Robco, Inc. agrees to the provisions contained in Paragraphs 10-13.

10. Robco, Inc., at its option, will either remove or modify all Customer Queues to comply with the Standards, including, but not limited to, standards for width and turning width, by six months from the execution of this Agreement. Robco, Inc. may have no more than an additional three months to modify the Customer Queues in the event that it demonstrates the materials necessary for modification were promptly ordered but could not be obtained within the initial six months. Modifications shall be in accordance with the standard detailed plans and drawings referenced in Paragraph No. 11 herein.

11. If Robco, Inc. chooses to modify rather than remove the Customer Queues at Robco Restaurants, Robco, Inc. will not undertake any modifications until it has submitted and received approval of the standard detailed plans and drawings for the modified Customer Queues from the U.S. Attorney's Office. These plans and drawings must include all measurements of the modified Customer Queues and any other features affected by the modification.

12. In addition, within one year from the execution of this Agreement, Robco, Inc. agrees each public restroom in all newly constructed and pre-existing Robco restaurants will have doors equipped with accessible handles in compliance with ADA Standard 4.13.9 as well as grab bars behind and on the side wall nearest to at least one toilet in compliance with ADA Standard 4.17.6.

13. For all Robco Restaurants to be constructed after the effective date of this Agreement, Robco, Inc. agrees to:

a. Comply in all respects with the ADA, the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. and any other applicable Maine accessibility laws.

b. Modify all architectural plans to comply in all respects with the ADA Standards. This includes, but is not limited to, modifying the plans to either eliminate Customer Queues or to widen them to meet ADA standards for width and turning width, such as is reflected in the standard detailed plans and drawings referenced in Paragraph No. 11 herein, and to ensure such plans comply in all respects with the ADA.

c. Notify in writing all recipients of architectural plans created, approved or distributed by Robco, Inc. that all features on those plans that are covered by and comply with the ADA are required by Federal law. The notification shall also inform recipients of the need for ADA compliance in features not included in the plans, such as entrances, exterior features, parking, routes from parking to accessible entrances from public parking and public sidewalks and public transportation.

IV. PRE-EXISTING RESTAURANTS

14. For all Robco Restaurants which were constructed before the ADA new construction effective dates (28 C.F. R. § 36.401(a)) ("Pre-Existing Restaurants"), Robco, Inc. agrees to:

a. At its option, either remove or modify all Customer Queues to comply with the Standards, including, but not limited to, standards for width and turning width, within six months from the execution of this Agreement. Robco, Inc. may have no more than an additional three months to modify the Customer Queues in the event that it demonstrates the materials necessary for modification were promptly ordered but could not be obtained within the initial six months.

b. If Robco, Inc. elects to modify rather than remove the Customer Queue at Robco Restaurants, Robco, Inc. will not undertake any modifications until it has submitted and received approval of the standard detailed plans and drawings for the modified Customer Queue from the United States Attorney's Office. These plans and drawings must include all relevant measurements of the modified Customer Queue and any other features affected by the modification.

V. REPORTING

15. Robco, Inc. agrees to submit to the United States Attorney's Office a plan for completion of the modifications described in this Agreement within 90 days after the execution of this Agreement. This plan will include: a description of the modifications to be made at each Robco Restaurant; Robco, Inc.'s plan for completing modifications at the Robco Restaurants in Maine; and the dates by which Robco, Inc. will complete those modifications for each Robco Restaurant. Robco, Inc. reserves the right to make reasonable adjustments to the planned deadlines for completion of modifications, but will notify the United States Attorney's Office of any such adjustments within 10 days of the original deadline.

16. In addition to the plan referenced in Paragraph 15 and to the extent that it has not already made all modifications required by this Agreement, Robco, Inc. agrees to submit reports to the United States Attorney's Office, summarizing all work performed pursuant to this Agreement since the previous report: 120 days after the date of execution of this Agreement and at 30-day intervals thereafter, until all modifications under this Agreement are complete.

17. Robco, Inc. will permit representatives from the U.S. Attorney's Office to conduct site visits to Robco Restaurants to check compliance with this Agreement. Visits will occur between 9:00 and 11:00 a.m., or 2:00 and 5:00 p.m., in order to minimize any effect on business. Robco, Inc. will instruct all appropriate employees at its restaurants to fully cooperate and permit such visits.

a. Within 14 days of the date of this Agreement, Robco, Inc. will provide the U.S. Attorney's Office with a signed letter, attached as Exhibit A to this Agreement, evidencing the agreement of Robco, Inc. that the U.S. Attorney's Office has the authority to perform the above site visits.

b. Within 14 days of the date of this Agreement, Robco, Inc. will provide the U.S. Attorney's Office with copies of the signed letters, attached as Exhibit B to this Agreement, that have been mailed to each of the managers at Robco Restaurants in Maine, explaining the obligations undertaken by Robco, Inc. in this agreement. Robco, Inc. will also certify in writing to the U.S. Attorney's Office at that time that copies of the letter attached as Exhibit B have been sent to appropriate personnel at Robco Restaurants.

VI. VOLUNTARY PAYMENT OF CIVIL PENALTY

18. Robco, Inc. will pay $500.00 to the U.S. Attorney's Office as a civil penalty for each Robco Restaurant in Maine, within 30 days of execution of this Agreement.

VII. ENFORCEMENT AND MISCELLANEOUS PROVISIONS

19. In consideration for this Settlement Agreement, the parties agree to refrain from filing any lawsuits at this time with respect to matters encompassed herein.

20. If Robco, Inc. fails to comply with any provision of this Agreement, such failure shall constitute a subsequent violation, within the meaning of 42 U.S.C. § 12188(b)(2)(C)(ii) and 28 C.F.R. § 36.504(a)(3)(ii), and Robco, Inc. shall correct this noncompliance within 30 days of its being notified of the noncompliance. If Robco, Inc. fails to take any actions described in Paragraph 12, Section III or Section IV of this Agreement pursuant to the terms and time periods specified herein, it shall be liable to the United States of America for a civil penalty of no less than $2,000 for each required action not taken, in each restaurant, in addition to any appropriate compensatory damages caused by the failure of Robco, Inc. to comply. If the parties dispute liability in any such situation, and cannot resolve the dispute, the United States of America may immediately file a lawsuit in the United States District Court for the District of Maine to determine liability. The parties to this agreement hereby stipulate that the United States District Court for the District of Maine located in Portland, Maine shall have both jurisdiction and venue over any dispute between the parties of this agreement.

21. Failure by the United States Department of Justice 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.

22. The United States Attorney's Office does not intend any aspect of this Agreement to evidence a legal interpretation of the ADA or any state accessibility law regarding franchisee liability under those laws. Similarly, nothing contained in this Agreement shall be deemed or construed as an act, commitment, or promise of any nature, on the part of Robco, Inc. to assume liability or responsibility for compliance with the ADA or any state accessibility law for any facility that is owned in its entirety by Wendy's International, Inc.

23. This Agreement is a public document. A copy of this document, or any information contained therein, may be made available to any person. The effective date of this Agreement is the date of the last signature below.

24. This Agreement shall be binding on Robco, Inc. This Agreement shall also be binding on any successors in interest to Robco, Inc. for ten years from the effective date of this Agreement, and Robco, Inc. has a duty to so notify all such successors in interest.

25. If Robco, Inc. seeks to sell any Robco Restaurant for which modifications are required by this Agreement, Robco, Inc. must complete all required modifications before any such sale takes place, notwithstanding deadlines set by this Settlement Agreement or the plans of Robco, Inc. for completion of modifications referred to above in Paragraphs 12 through 14 of the Agreement.

26. This Agreement, and the attachments thereto, constitute the entire agreement between the United States of America and Robco, Inc. 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 Settlement Agreement, shall be enforceable.

27. This Settlement Agreement is limited to the facts set forth in it. This Agreement does not purport to remedy any other potential violations of the ADA or any other State or Federal law. This Agreement does not purport to list all violations of the Americans with Disabilities Act or any state accessibility law by Robco, Inc. or by any other owner, operator, manager, lessor or lessee of Robco Restaurants or Wendy's Restaurants.

28. Signors of this Settlement Agreement on behalf of the parties represent that they are authorized to bind the above-captioned parties to this Settlement Agreement.

29. Notices of any kind required or contemplated under this Agreement shall be made by mailing the same via United States Postal Service, first class certified mail, return receipt requested, and notice shall be deemed given on the date of receipt of the same. Notices to the United States Attorney's Office shall be mailed to the address in the signature block below of the undersigned Assistant U.S. Attorney. Notices to Robco, Inc. shall be mailed to Ian H. Robinson, Post Office Box 1497, Rochester, New Hampshire, 03866.

30. Deadlines listed in this Agreement which fall on weekends or holidays will be extended to the next business day.

For the United States of America:

Jay P. McCloskey

United States Attorney

____________________________________

James M. Moore, Asst. U.S. Attorney (Date)

UNITED STATES ATTORNEY'S OFFICE

Post Office Box 2460

Bangor, ME 04402-2460

For Robco, Inc.:

____________________________________

Frederick B. Finberg, Esq. (Date)

Attorney for Robco, Inc.

Bennett, Bennett & Troiano

Post Office Box 7799

Portland, ME 04112-7799

(207) 773 - 4775

____________________________________

Ian H. Robinson, President (Date)

Robco, Inc.

Post Office Box 1497

Rochester, NH 03866

(603) 332 -5975

*** END OF SETTLEMENT AGREEMENT ***

EXHIBIT A

Jay P. McCloskey

United States Attorney

U.S. ATTORNEY'S OFFICE

99 Franklin Street

Post Office Box 2460

Bangor, Maine 04402

Re: Compliance with the Americans with Disabilities Act at

Wendy's Restaurants Owned and/or Managed by Robco, Inc.

Dear Mr. McCloskey:

This letter evidences the agreement of Robco, Inc., pursuant to the Settlement Agreement signed between Robco, Inc. and the United States of America, that your representatives may perform site visits to any restaurant owned by Robco, Inc. as of the date of that Agreement, for the purposes of determining the compliance of Robco, Inc. with that Settlement Agreement. Your representatives may survey facilities to assess compliance of any architectural features with the Americans with Disabilities Act by, for example, taking photographs and measurements, reviewing architectural plans, if available, and other reasonable measures. The parties to the above agreement have agreed that these visits will take place only between the hours of 9:00 a.m.-11:00 a.m. and 2:00 p.m.-5:00 p.m., to minimize the effect on business.

Sincerely,

_____________________________

Ian H. Robinson (Date)

President

Robco, Inc.

Post Office Box 1497

Rochester, NH 03866

(603) 332 -5975

EXHIBIT B

Manager

Wendy's Restaurant

518 Main Street

Sanford, Maine 04073

Re: Compliance with the Americans with Disabilities Act

Dear [Manager]:

This is to inform you that Robco, Inc., the franchisee of the above-referenced Wendy's Restaurant, has entered into an agreement with the United States Attorney for the District of Maine to ensure accessibility at its franchised Wendy's restaurant(s). Pursuant to this agreement, we have agreed to take certain actions in connection with the removal or widening of the customer queues at all restaurants that are owned, leased or managed by Robco, Inc. because the Justice Department maintains that our previous queue designs were not wide enough for customers who use wheelchairs.

Also pursuant to that Agreement, we have agreed to allow representatives of the U.S. Attorney's Office to perform site visits of any other Wendy's Restaurants for which Robco, Inc. becomes the franchisee to assess our compliance with the Agreement. During these inspections, Justice Department representatives may visit your restaurant, survey areas of the facility, take measurements, take photographs, review architectural plans if available, and take any other measure necessary. The visits will be conducted between 9:00 a.m.-11:00 a.m. and 2:00 p.m.-5:00 p.m., to minimize the effect on business. Please fully cooperate with them during these visits.

For further information on these visits or your obligations under the Americans with Disabilities Act (ADA), you may contact me at the address and telephone number stated below my signature. Please don't hesitate to call me should you have any questions concerning these visits or ADA compliance.

Sincerely,

_____________________________

Ian H. Robinson (Date)

President

Robco, Inc.

Post Office Box 1497

Rochester, NH 03866

(603) 332 -5975

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Updated August 6, 2015

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