United States District Court District Of Maine

UNITED STATES OF AMERICA, Plaintiff

v.

TRANSCO DISTRIBUTORS, Defendant

U.S. Attorney No. 1998-V00356

)

SETTLEMENT AGREEMENT REGARDING ACCESS FOR INDIVIDUALS WITH DISABILITIES TO WENDY'S RESTAURANTS IN MAINE

I. THE PARTIES AND CIVIL RIGHTS STATUTES

1. The parties to this Agreement are the United States of America and Transco Distributors, the franchisee of eight Wendy's restaurants in the State of Maine. 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. (1990), its implementing regulations (including the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A ("Standards")), and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq.

II. FACTS

3. Transco Distributors is incorporated under the laws of the State of Maine, and does business in Maine. Transco owns and operates restaurants in the State of Maine that use the trade names "Wendy's" and "Wendy's Old Fashioned Hamburgers."

4. "Transco Restaurants" means all restaurants owned, leased, or operated by Transco Distributors, except for those company-owned or company-leased restaurants, which are owned and operated by Wendy's International, Inc. The Transco Restaurants are listed in Exhibit A to this Agreement.

5. All Transco 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. Transco 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 Transco Distributors owns, leases, leases to, or operates, all Transco Restaurants. Transco Distributors is subject to the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. with regard to all Transco Restaurants.

6. The barriers to access discovered by the United States of America include, but are not limited to, queue lines in which customers line up to wait to order food ("Customer Queues"). These Customer Queues lack sufficient width or turning space for wheelchairs, and therefore fail to comply with ADA Standards and with similar provisions of the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq..

7. The U.S. Department of Justice maintains that the Customer Queues are barriers to access and constitute violations of the ADA. Transco Distributors 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. Transco Distributors maintains it is fully committed to compliance with the terms of this agreement and that it will be fully committed to compliance with the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq.

III. NEWLY CONSTRUCTED RESTAURANTS

9. For all Transco Restaurants constructed after the ADA effective dates for new construction, Transco Distributors agrees to the provisions in Paragraphs 10-13.

10. Transco Distributors, 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. Modifications shall be in accordance with the standard detailed plans and drawings referenced in Paragraph No. 11 herein.

11. If Transco Distributors chooses to modify rather than remove the Customer Queues at Transco Restaurants, Transco Distributors 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. Transco Distributors agrees to submit to the United States Attorney's Office several alternative sets of standard detailed plans and drawings for modified Customer Queues and agrees to utilize one or more of the same for purposes of modification of Customer Queues pursuant to Paragraph No. 10 herein.

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

13. For all Transco Restaurants to be constructed after the effective date of this Agreement, Transco 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 prototype or other 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 and similar provisions of the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. and all other Maine accessibility laws, 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, the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. and all other applicable Maine accessibility laws.

c. Notify in writing all recipients of prototype or other architectural plans created or distributed by Transco Distributors, 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 exterior features, parking, routes from parking and public sidewalks and transportation to accessible entrances.

IV. PRE-EXISTING RESTAURANTS

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

b. If Transco Distributors elects to modify rather than remove the Customer Queue at Transco Restaurants, Transco Distributors 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. Transco agrees to submit to the United States Attorney's Office several alternative sets of standard detailed plans and drawings for modified Customer Queues and agrees to utilize one or more of the same for purposes of modification of Customer Queues pursuant to Paragraph No. 14(a) herein.

c. In the case of any of Pre-Existing Transco Restaurants which were not built according to standard building plans due to unique factors, modification of the Customer Queues located within such non-standard restaurants utilizing the standard detailed plans and drawings referenced in Paragraph No. 14(b) herein, may not be possible. In any such instances, Transco Distributors will at its option, either remove such Customer Queues or modify the same in accordance with special non-standard modifications, which have no less width and turning width than the standard plans referred to in Paragraph No. 11 of this Agreement, and which have been approved by the United States Attorney's Office.

V. REPORTING

15. Transco Distributors 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 Transco Restaurant; Transco Distributor's plan for completing modifications at the Transco Restaurants in Maine; and the dates by which Transco Distributors will complete those modifications for each Transco Restaurant. Transco Distributors 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, Transco Distributors agrees to submit reports to the United States Attorney's Office, summarizing all work performed pursuant to this Agreement since the previous report: 90 days after the date of execution of this Agreement and 180 days after the date of execution of this Agreement and at 30-day intervals thereafter, until all modifications under this Agreement are complete.

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

a. Within 14 days of the date of this Agreement, Transco Distributors will provide the U.S. Attorney's Office with a signed letter, attached as Exhibit B to this Agreement, evidencing Transco Distributors's agreement 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, Transco Distributors will provide the U.S. Attorney's Office with copies of the signed letters, attached as Exhibit B to this Agreement, that has been mailed to the managers of each of the Transco restaurants in Maine, explaining the obligations undertaken by Transco Distributors in this agreement. Transco Distributors will also certify in writing to the U.S. Attorney's Office at that time that the letters attached as Exhibits B and C have been sent to all Transco Restaurants.

VI. PAYMENTS

18. Transco will pay $4,000 to the United States Attorney's Office, within 30 days of the 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 Transco Distributors fails to comply with any provision of this Agreement, the United States Attorney's Office may take the position that 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 Transco Distributors shall correct this noncompliance within 30 days of its being notified of the noncompliance. The United States Attorney's Office agrees to provide written notice to Transco of any such alleged noncompliance, and the parties agree to refrain from the filing of any lawsuits premised upon such noncompliance if it is corrected within the 30-day cure period. If Transco fails to take any actions described in Sections III and IV of this Agreement, without prior written approval of the United States Attorney's Office, 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 Transco's failure to comply. If the parties dispute liability in any such situation, and cannot resolve the dispute, the United States 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 Bangor, 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 provision 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 Transco Distributors to assume liability or responsibility for compliance with the ADA or any state accessibility law for any facility that is owned in its entirety and operated 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 Transco Distributors. This Agreement shall also be binding on Transco Distributors's successors in interest for ten years from the effective date of this Agreement, and Transco Distributors has a duty to so notify all such successors in interest.

25. If Transco Distributors seeks to sell one of the Transco Restaurants for which modifications are required by this Agreement, unless Transco Distributors obtains a written certification from the buyer that the buyer will make the required modifications or remove the features to be modified, Transco Distributors must complete all required modifications before any such sale takes place, notwithstanding deadlines set by this Settlement Agreement or Transco Distributors's plans for completion of modifications referred to above in Paragraphs 13 and 14 of the Agreement.

26. This Agreement, and the attachments thereto, 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 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 ADA or any state accessibility law by Transco Distributors or by any other owner, operator, lessor or lessee of any Transco 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 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 at the address in the signature block below of the undersigned Assistant U.S. Attorney. Notices to Transco Distributors shall be mailed to Robert Demos, Director of Operations, Transco Distributors, 36 Anthony Ave., Augusta, ME 04330.

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

>
Updated August 6, 2015

Was this page helpful?

Was this page helpful?
Yes No