IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 94-N-995 UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) ) LIRA LIMITED LIABILITY CO. d/b/a ) BAROLO GRILL LIMITED LIABILITY CO., ) BLAIR TAYLOR, and BRIAN WOOD, ) ) Defendants. ) ) CONSENT ORDER 1. The United States brought this action to enforce the Americans with Disabilities Act ("ADA"), pursuant to 42 U.S.C. S 12188(b)(1)(B), and 28 U.S.C. SS 1331 and 1345, against the Lira Limited Liability Co., d/b/a Barolo Grill Limited Liability Co., Blair Taylor, and Brian Wood, (collectively, the "Lira Defendants") and against E. Michael Canges ("Defendant Landlord"). The Lira Defendants and Defendant Landlord are referred to collectively as the Defendants. The government alleges that Defendants have violated title III of the ADA, 42 U.S.C. SS 12181-12189, and the Department of Justice's implementing regulation, 28 C.F.R. pt. 36. 2. Specifically, the Complaint alleges that the Lira Defendants began an alteration (the "Alteration") to a facility located at 3030 East Sixth Avenue, Denver, Colorado, later to be opened by the Lira Defendants as the Barolo Grill, and that the alteration does not comply with the ADA (42 U.S.C. S 12183(a)(2) and 28 C.F.R. S 36.402). The Alteration included, but is not limited to, installing a new raised dining area, and installing booths and tables in the new raised dining area. The Complaint states that the Alteration included alterations to a primary function area, and that the path of travel to the altered area was not made accessible. See 42 U.S.C. S 12183(a)(2) and 28 C.F.R. S 36.403. The Complaint further states that Defendants have not removed barriers to access to the extent that it is readily achievable to do so. 42 U.S.C. S 12182(2)(A)(iv); 28 C.F.R. S 36.304. 3. The Lira Defendants have filed an answer denying the government's allegations. 4. The Lira Defendants state that they are committed to full compliance with the Americans with Disabilities Act. To demonstrate that commitment, the Lira Defendants have agreed to remove architectural barriers that exist in the Barolo Grill in order to provide further access to individuals with disabilities. The Lira Defendants agree to take the steps outlined in this Order to ensure that persons with disabilities have an opportunity equal to that of non-disabled persons to enjoy the goods and services of their restaurant facility, and agree to ensure that their policies, practices, and procedures do not discriminate on the basis of disability. In light of this agreement, the parties have determined that the government's suit can be resolved without additional costly and protracted 2 litigation and have prepared and agreed to the terms of this Order, without a trial. 5. This Order resolves all issues raised in the Complaint. It is limited to those issues and does not address Defendants' other obligations under the ADA, including physical access at any other facility or facilities owned and/or operated by Defendants, future alterations and/or new construction, and the provision of effective communication and auxiliary aids and services at the Barolo Grill or any other facility or facilities owned and/or operated by Defendants. This Order is final and binding on all parties to this action, including all principals, agents, and successors in interest of the Defendants, as well as any person acting in concert with them. 6. The parties stipulate as follows: a. This Court has jurisdiction of this action under 42 U.S.C. S 12188(b)(1)(B) and 42 U.S.C. SS 1331 and 1345. b. Lira Limited Liability Co., d/b/a Barolo Grill Limited Liability Co., is a partnership, which owns and operates a restaurant called the Barolo Grill, located at 3030 East Sixth Avenue, Denver, Colorado 80210. c. Blair Taylor and Brian Wood are partners in Lira Limited Liability Co., d/b/a Barolo Grill Limited Liability Co. (the "Lira Defendants"). d. Defendant E. Michael Canges is the landlord of the building at 3030 East Sixth Avenue, Denver, Colorado 80210 in which the Barolo Grill is located ("Defendant Landlord"). 3 e. The Barolo Grill is a public accommodation within the meaning of title III of the ADA, 42 U.S.C. S 12181(7)(B), and its implementing regulation at 28 C.F.R. S 36.104. f. The Lira Defendants made alterations affecting the usability of the Barolo Grill, or a part thereof, in such a manner that did not ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, and in such a manner that decreased or had the effect of decreasing accessibility or usability of a building or facility. g. The Lira Defendants made alterations that affect the usability of or access to an area that contains a primary function, without also making alterations in such a manner as to ensure that, to the maximum extent feasible, the path of travel to the altered areas, including the passenger loading zone, the restaurant entrance and entrance vestibule, and the restrooms serving the altered areas, are readily accessible to and usable by individuals with disabilities, where such alterations to the path of travel are not disproportionate to the overall alterations. h. The Lira Defendants failed to remove architectural barriers to accessibility where such removal is readily achievable. 4 i. Jim Parker, Robin Stephens, Pamela Carter, and Michael Auberger are individuals with disabilities within the meaning of the ADA, 42 U.S.C. S 12102(2); 28 C.F.R. S 36.104. 7. Defendants, their officers, agents and employees, and all other persons in active concert or participation with any of them, are enjoined from: a. failing to make further alterations to Barolo Grill that do not comply with the ADA, including the Standards for Accessible Design ("Standards"); b. failing to comply with the continuing obligation to remove architectural barriers to access where such removal is readily achievable; c. discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods and services of the Barolo Grill; and d. discriminating against any individual because that individual has participated in an investigation or court proceeding under the ADA, as well as coercing, intimidating or threatening any individual as a result of this Order. 8. Effective immediately, Defendants shall make the following structural modifications to the Barolo Grill facility: a. Remove turning latch handle, making the main entrance door free swinging during operating hours, to comply with Standards S S 4.13.9 and 4.13.6; 5 b. Adjust the vestibule door's opening force to the allowable opening force of 5 lbf, as specified in Standards S 4.13.11. c. Fasten the exposed edge of carpet in the smaller dining room to floor surface at the doorway leading from the smaller dining room to the patio to comply with Standards S 4.5.3, and place a trim along the entire length of the exposed edge to comply with Standards S 4.5.2. 9. All architectural barriers at the Barolo Grill, enumerated below, shall be removed within 60 days of the Department's approval of plans and specifications. Any modifications performed without approval from the Department that do not strictly comply with the Standards must be redone within 30 days of receipt of the Department's objections. Within 30 days of the entry of this Order, the Defendants shall present to the Department a set of detailed specifications, architectural plans, or other illustrative material, displaying proposed modifications to remove all architectural barriers in the following areas: a. A valet parking area that provides a passenger loading zone that complies with Standards SS 4.1.2(5)(e) and 4.6.6, or if providing an accessible passenger loading zone is not possible, plans for a reasonable number of parking spaces designated for persons with disabilities, which comply with Standards S 4.6.1, along with appropriate directional signs 6 to indicate to patrons how to locate the accessible parking spaces; b. Handrails on the main entrance ramp that comply with Standards S 4.8.5. c. Modifications of the threshold leading from the outside of the restaurant into the vestibule of the main entrance to comply with Standards S 4.13.8. d. An accessible booth seating table that complies with Standards S S 4.1.3(18) and 4.32.1. e. Removal of the egress ramp (emergency exit ramp) and provision of a sign designating the emergency exit to comply with Standards S S 4.1.3(16) and 4.30.1. f. Modifications of specific elements in and around the unisex rest room (toilet room), relating to the sign, toilet fixture, and emergency warning system, to comply with Standards S S 4.30.1, 4.16.4, 4.16.5, 4.16.6, and 4.28.1. g. A raised dining area with access provided by a ramp that fully complies with the Standards at S S 4.8.1. h. Barrier removal or alternatives to barrier removal at the entrance to the wine storage room, including a plan for alternatives to removal of the step at the entrance into the wine storage room, and removal of the double-leaf doors at the entrance to the room. If the plan for alternatives to removal of the step includes provision of a portable ramp, it must comply with 28 C.F.R. S 36.304(e) and Standards S 4.8.1. 7 10. Defendants shall pay $1,500 to each of the four individuals named in Paragraph 6.i., for a total of $6,000. The first installment payment of $250 to each individual shall be made within 30 days of the entry of this Order, with installments of $250 to each individual following every 30 days thereafter until paid in full. Checks for these payments shall be made payable to each individual. The individuals named in Paragraph 6.i. shall be required to execute a release of claims arising from the actions complained of in this matter, Attachment B. 11. Defendants shall pay civil penalties in the amount of $10,000 to the United States. The first installment payment of $1,000 shall be made within 180 days of the entry of this Order, with installments of $1,000 following every 30 days thereafter until paid in full. Checks for these payments shall be made payable to the United States Department of Justice. 12. Within 180 days of the entry of this Order, the Lira Defendants shall sponsor and host at the Barolo Grill a one-day information seminar on ADA awareness, with light refreshments provided and prepared by the Barolo Grill to accommodate at least 80 people. The ADA information seminar shall be organized by the Lira Defendants and a disability rights group of Denver proposed by the Lira Defendants and approved by the Department. The approved disabilities rights group will designate speakers to appear at the seminar, as well establish the seminar's agenda. Members of the Colorado Restaurant Association and the public shall be invited by the Lira Defendants to attend the seminar, 8 which shall focus on the responsibilities of restaurants under the Americans with Disabilities Act. 13. Within 30 days of the entry of this Order, the Lira Defendants shall implement the policy stated in Attachment A, and shall make such policy known to all current employees at the Barolo Grill. Such policy shall be included in training for all new employees within 5 days of the beginning of employment. 14. Within 180 days of the entry of this Order, the Lira Defendants shall certify to the Department, in writing, that they have fulfilled all of their obligations under this agreement, and where necessary, shall provide photographs indicating the completed modifications. The certification shall set out each of the obligations that has matured by the date of the certification, and shall describe the steps the Lira Defendants have taken to fulfill those obligations. The certification shall also identify all continuing obligations under this agreement, and describe how the Lira Defendants are meeting those obligations. 15. In the event that the Lira Defendants are required to obtain, for any of the steps to remove barriers to access specified in this agreement, any building, mechanical, electrical, plumbing or other permit or approval, the Lira Defendants shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by the Lira Defendants for obtaining the permit or approval, or is denied, the Lira 9 Defendants shall promptly notify counsel for the United States. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier. 16. Within 30 days of the entry of this Order, the Lira Defendants shall obtain a lease addendum from the Defendant Landlord granting permission to take all steps necessary to comply with this Order, at which time Plaintiff and the Lira Defendants shall jointly move for dismissal of the Defendant Landlord. 17. The United States may review compliance with this agreement at any time. If the United States believes that the Lira Defendants have violated this agreement or any requirement contained herein, it agrees to attempt to seek an amicable resolution from the Defendants. If the violations are not timely resolved, the United States may seek appropriate relief from this Court. If the Court makes a determination of a violation of this Consent Order, the Lira Defendants stipulate to the payment of $5,000 for each such violation. The Court may also award damages to any person aggrieved by the violation. Failure by the Department to seek enforcement of this Consent Order with regard to one provision shall not be construed as a waiver of its right 10 to do so with regard to the same or other provisions of this Order. 18. This case is administratively closed, but the Court shall retain jurisdiction of this action to enforce the provisions of this Order for eighteen months from the date of this Order after which time all of its provisions shall be terminated, unless the Court determines it necessary to extend any of the requirements imposed by this Order, in which case those specific requirements shall be extended. Entered and Ordered this 8 day of Nov., 1994. Honorable Edward W. Nottingham United States District Judge Agreed and Consented to: FOR DEFENDANTS: FOR PLAINTIFFS: Lira Limited Liability Co. d/b/a United States of America Barolo Grill Limited Liability Co., Blair Taylor and Brian Wood LESLIE BLOCK KAYE JOAN A. MAGAGNA Dill, Dill, Carr & Stonbraker V. COLLEEN MILLER 455 Sherman Street, Suite 300 KATE M. NICHOLSON Denver, Colorado 80203 Public Access Section Tel: (303) 777-3737 Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 11 CERTIFICATE OF SERVICE I certify that on this 7th day of November, 1994 I did cause to be served by first class mail the parties' Consent Order on the following counsel for the defendants: Leslie Block Kaye Dill, Dill, Carr & Stonbraker 455 Sherman Street, Suite 300 Denver, Colorado 80203 (counsel for Lira Limited, et al.) Harley Shaver 1212 Century Towers 720 South Colorado Blvd. Denver, Colorado 80222-1934 (counsel for E. Michael Canges) Office of the U.S. Attorney ATTACHMENT A THE BAROLO GRILL RESTAURANT POLICY FOR SERVING CUSTOMERS WITH DISABILITIES It is the policy of the Barolo Grill restaurant to serve all of its customers equally, without regard to disability. To this end, the Barolo Grill and its staff will extend to its customers with disabilities the same courtesy and respect that it extends to all of its customers. In particular, the Barolo Grill will accept reservations from, greet, make table assignments for, serve, and otherwise treat customers with disabilities in the same manner that we do for our other customers. In addition, the Barolo Grill will modify its normal operating procedures to accommodate customers with disabilities, when it is necessary to do so. These modifications may include: -- allowing customers with disabilities who come for cocktails to use dining tables within the same area as the bar counter for cocktails, and providing the same cocktail service to those tables as at the bar counter; -- offering to read menus to customers with visual impairments; -- allowing customers who use service animals (such as guide dogs, hearing dogs, or dogs that aid with mobility) to bring their animals with them into the restaurant, and to keep the animals with them; -- if requested, providing other assistance to customers with visual impairments, such as describing items on a buffet table, salad bar, or other table or bar, or carrying plates, bowls, trays, or other items to from a buffet table or salad bar; -- if requested, providing assistance to customers with mobility impairments, such as carrying plates, bowls, trays, or other items, to from a buffet table, salad bar, or other table or bar, or retrieving items from inaccessible locations; -- if requested, having the kitchen cut food into smaller pieces. If a customer with a disability requests assistance that you believe to be inappropriate, politely ask the customer to wait while you check with the manager, and then immediately bring the situation to the manager's attention. If you receive a request for a reservation for a private party to use the rear Wine Storage Room, you should inform the caller that this room is up one step and is not easily accessible to persons using wheelchairs. If the party will include anyone unable to use this step, inform the caller that we will provide a portable ramp to this room or that we will seat them in a semi- private location elsewhere in the restaurant, if that is their preference. The Barolo Grill is committed to serving all of its customers with the same respect and courtesy. Any failure to follow this policy will be grounds for disciplinary action. If you have any questions about this policy, or about serving customers with disabilities, ask the manager. ATTACHMENT B RELEASE OF CLAIMS I, , hereby agree that in consideration of payment to me by the Barolo Grill of $1,500, according to the terms of paragraph 10 of the Consent Order of , 1994, in United States v. Lira Limited Liability, et al., (D. Colo. Civ. No. 94-N-995), and in consideration of Defendants, agreement to all of the terms of that Consent Order, I hereby release Lira Limited Liability Co., the Barolo Grill, Blair Taylor and Brian Wood from any claims, causes of action, rights or complaints of any nature that I may have arising from the facts and circumstances alleged in the United States' Complaint in that matter. I intend this release to also apply to Defendants' successors in interest and to be binding as well on my heirs, assigns and successors. I understand that I had the right to consult with an attorney before executing this release and that there may be specific legal consequences of this release. I have read the Second Amended Complaint filed in this matter and have read the Consent Order. I understand the terms of this release. I voluntarily give this release and accept the terms of it. AGREED TO and SIGNED this day of , 1994. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 94 N 995 CERTIFICATE OF MAILING I hereby certify that a copy of the Consent Order signed by Judge Edward W. Nottingham on November 8, 1994, was mailed to the following on November 8, 1994: Linda A. Surbaugh, Esq. Assistant United States Attorney V. Colleen Miller, Esq. Kate M. Nicholson, Esq. United States Department of Justice Public Access Section, Civil Rights Division Post Office Box 66738 Washington, D.C. 20035-6738 Leslie Block Kaye, Esq. DILL, DILL, CARR & STONBRAKER, P.C. 455 Sherman Street, Suite 300 Denver, CO 80203 Harley Shaver, Esq. 1212 Century Towers 720 South Colorado Boulevard Denver, CO 80222-1934 Magistrate Judge Bruce D. Pringle JAMES R. MANSPEAKER, CLERK By Deputy Clerk