Opinion
CASE NO. CV-10-1549 JL Civil Rights.
December 1, 2010
Thimesch Law Offices, TIMOTHY S. THIMESCH, ESQ., No. 148213, GENE A. FARBER, ESQ., No. 44215 — Of Counsel, Walnut Creek, CA, Attorneys for Plaintiff CRAIG YATES.
MARK J. RICE, ESQ. (124934), MCNEIL, SILVERIA, RICE WILEY, San Rafael, CA, Attorneys for Defendant MARKOS PROPBRTIES, INC.
FULL CONSENT DECREE ORDER AND JUDGMENT
INTRODUCTION
1. Plaintiff CRAIG YATES is a person with a disability whose condition requires the full time use of a scooter or wheelchair for mobility2. Defendants MARKOS PROPERTIES, INC. is the owner, operator, and lessor of the strip shopping center located at or near 967 to 971 Front Street, Novato, California (hereafter, "Subject Property"). Defendant leases the portion of the property known as Italian Delite at 971 Front Street to ITALIAN DELITE and TARIK BILAL.
3. Plaintiff and the Defendants shall also be referred to collectively herein as the Subject Parties.
4. Plaintiff filed this action for himself and all other similarly situated members of the public to vindicate their rights under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and Civil Code Section 54 and 54.1.
5. Plaintiff alleges that Defendants violated these statutes by failing to provide full and equal access and related facilities, including an accessible route from the public sidewalk and boundary of the side and leading to all elements, facilities and services throughout the strip mall, the parking facilities, the entrance facilities, the public restroom, and, in the Italian Delite, the service counter, and interior and exterior dining tables. Plaintiff further alleges that Defendants failed to provide access to the portion of the strip mall and parking lot located along the face of Mirabella Street. Specific identification of the facilities and their deficiencies has been identified by the parties through an exchange of information at the site inspection held on July 19, 2010.
6. Plaintiff alleges that the subject building and site has undergone construction triggering the requirement of full compliance with regulations in the altered areas, and that further Defendants could easily afford to makes its facilities and services accessible without significant difficulty or expense. All Defendants deny this allegation; but for purposes of this settlement, on mutually agreed terms of injunctive relief, said dispute does not vitiate the Consent decree. The Consent Decree Order is Injunctive based on agreed retrofit of the premises whether or not required which is in contention. Nothing herein shall be construed as an admission by all Defendants that the retrofit was required.
7. The subject parties enter this Full Consent Decree Order and Judgment (hereafter "Consent Decree") in order to fully resolve the issues, claims and defenses in this case. This resolution is without prejudice to Plaintiff's remaining claims against other named defendants in this action, including, but not limited to, Defendants HAROLD S. POZZI, JR.; HAROLD S. POZZI 2002 TRUST; ROSALIE ARTIGIANI 2009 TRUST; ROSALIE ARTIGIANI, which are ongoing, and which are otherwise not intended to be affected by this decree.
STIPULATIONS
8. Plaintiff's Qualified Disability. Plaintiff qualifies as a "person with a physical disability" as defined by the relevant statutes.
9. Plaintiff's Status as Aggrieved and Potentially Aggrieved.
Plaintiff CRAIG YATES alleges he has standing, that he lives in Terra Linda, that he regularly conducts personal affairs in Novato, including shopping and dining. While none of the Defendants admit all of the foregoing allegations, they agree that sufficient facts support Plaintiff's qualification as "aggrieved and potentially aggrieved" under the relevant statutes, and his individual standing under Article III of the U.S. Constitution.
10. Qualified Facilities. The Italian Delite qualifies as a "public accommodation" and "commercial facility" under all applicable statutes and regulations.
11. Alteration History. The parties have been unable to stipulate that all facilities in issue have undergone sufficient and recent alteration and/or new construction to require compliance with the Americans With Disabilities Act Access Guidelines published in 1992, as it applies to altered facilities, and that the restaurant is otherwise subject to the requirements of Civil Code Section 54.3 and Title 24, Part II, of the California Code of Regulations. However the retrofit undertaken is as if such alteration had taken place. It is admitted that the subject premises have not been enlarged during the applicable periods of time. 12. Scope of Facilities in Issue. The following are the facilities at the Subject Restaurant affected by this Consent Decree: including, but not limited to: the accessible route from the public sidewalk and boundary of the site to the main entrance of the restaurant, the main entrance, the exterior sidewalk dining, the dining facilities, the refrigerated drink cooler and its landing, the service counter and the public restroom. The retrofit plans of the areas other than the refrigerated drink cooler, its landing, and the service counter are reflected in the permit set of building drawings A-1 through 7 submitted to the City of Novato for permit, by Markos Properties' architect Marty Zwick, and shall be the basis for the Consent Decree and any injunctive relief to enforce same if needed.
JURISDICTION
13. The facts requisite to federal jurisdiction are admitted. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 for the alleged violations of the ADA, 42 U.S.C. §§ 12101, et seq. Article III jurisdiction is proper due to the Plaintiff's continued exposure and use of the restaurant for dining. Pendant jurisdiction of the state law claims arises from a common nucleus of fact and is proper.
14. This Court shall have continuing jurisdiction to interpret and enforce this Consent Decree until Defendants have fulfilled all conditions hereunder. This agreement is contingent upon Court's acceptance of this continuing jurisdiction.
15. The parties agree to entry of this Consent Decree in order to resolve the below listed allegations raised in the Complaint filed with this Court on April 12, 2010. Accordingly, the parties agree to this Consent Decree without trial or further adjudication of any issues of fact or law concerning the issues specified herein Full Consent Decree Judgment and Order.
WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Full Consent Decree Judgment and Order, which provides as follows:
SCOPE OF SETTLEMENT
16. As to the signatory Defendants, This Consent Decree shall be a full, complete, and final disposition and settlement of the below claims that have been or could have been alleged in the Complaint, including for injunctive relief, declaratory relief, statutory and compensatory damages, including personal and bodily injury, and Plaintiff's claims for reasonable statutory attorney fees, litigation expenses and costs. This Consent Decree was reached through negotiations between the Subject Parties. The Court shall retain jurisdiction of this action to enforce and interpret this Full Consent Decree Judgment and Order. The parties agree that if they or any of them seek Court enforcement of this Full Consent Decree Judgment and Order, any such enforcement will be by noticed motion, application or other appropriate request for an order for specific performance, and that a contempt citation or decree will not be sought by any party.
AGREEMENTS CONCERNING INJUNCTIVE RELIEF
17. Specific Agreed Remediations. As a part of a compromise of global liability, each and all Defendants agree that they shall be jointly and severally responsible to perform the following work to provide disabled access at the Subject Restaurant as set forth in the attached Zwick plans A-1 to 7 filed with the City of Novato, attached hereto as Exhibit A: Current Condition Required Remediation 3.101 3.102 3.103 3.104 3.105 Note: See Danz Proposal at Exhibit 1. 3.106 3.107 3.108 Note: See Danz Proposal at Exhibit 1. 3.109 Note: See Danz Proposal at Exhibit 1. 3.110 3.111 3.112 3.113 3.114 Note: See Danz Proposal at Exhibit 1. 3.115 3.116 3.117
The path of travel from the boundary of the Create a fully compliant accessible site to the end of the curb ramp has slopes route from the boundary of the site to that far exceed 8.33% maximum slope the main entrance. This route shall permitted by the code, it has vertical have no cross-slope in excess of 2%, changes in elevation in excess of 1/2 inch, it no slope in the direction of travel in has a counter-slope at the end of the excess of 5% (unless the elements of a driveway and in the gutter-swale that is far compliant ramp are provided), and no in excess of 5%, vertical change in rise in excess of 1/4 inch or 1/2 inch beveled. For the portion of the accessible route that utilizes a ramp, provide all the required elements for a ramp, including a maximum slope of 8.33%, maximum cross-slope of 2%, fully compliant handrails on each side of the ramp, wheelguides along both edges, a 72 inch long level landing at the bottom of the ramp, a level landing at every 30 inches of rise, and a minimum 5 × 5 landing at the top. The slope of the ramp at the main entrance Provide a fully compliant accessible to Italian Delite exceeds 8.33%, lacks route from the boundary of the site to flared edges, has a cross-slope in the the main entrance. See 3.101. bottom landing, lacks tactile dooms, and is not connected to any accessible parking via an accessible route, nor to the boundary of the site At the main entrance: (1) the strike edge of Provide an exterior landing that is a the entry door is approximately 2 inches minimum of 60 inches in depth, that instead of the 24 inches required by the extends 24 inches beyond the strike code; (2) the door landing on the exterior is edge of the door, and projects out a less than the 60 inches required by code; minimum of 60 inches measured (3) the interior door landing is has a depth perpendicular to the face of the close of approximately 48 inches instead of the door. Provide an interior door landing 60 inches required by code (because of the that extends 60 inches from the face of tables and chairs located within this area) the closed door, and develop a written policy, backed by employee training, that trash cans, tables and chairs shall not be placed in this area (which shall be marked on the floor similar to the markings presently found in front of the beverage cooler). Pre-suit photographs depict a beverage Develop a written policy, backed by cooler whose landing is obstructed by a employee training, that trash cans, table and chairs. However, at the time of tables and chairs shall not be placed in the inspection, this area is now marked to this area while the restaurant is in be kept clear. operation. The height of the service counter exceeds Provide a lower section of the service the 34 inch maximum height, and counter that has a minimum length of otherwise lacks a lowered section. 36 inches, and a maximum height of 34 inches above the finished floor (AFF). On the raised service counter at the Place all these items at a lower counter napkins, condiments, straws, toothpicks that is set a maximum height of 34 and service bell. inches AFF. Note, the lowered section of the service counter mentioned in 1.105 shall not be used for this purpose. The ATM does not have the required clear Provide a clear ground floor space that ground floor space adjacent to it. is a minimum of 30 inches wide by 48 inches long (that has the 48 inch side parallel to the face of the ATM machine), so that a side reach can be accomplished to the highest operable mechanism; or, lower the height of the highest operable mechanism to 48 inches AFF, and provide a clear floor space that is a minimum of 30 inches wide in front of the machine. None of the tables have knee space that Provide at least one dining table of projects a minimum of 19 inches each type that has knee space underneath the tables. We observed 2- underneath it that is a minimum of 30 person and 4-person table types. inches wide, 27 inches high, and projects back underneath the table a minimum of 19 inches (with no pedestal or pedestal base located anywhere within the rectangular dimension of this space). A pre-suit photograph depicts exterior If the tables are reinstalled, provide an dining tables obstructing walkway running accessible route between the along the front face of the restaurant. This restaurant and the other facilities on walkway accessible the other facilities and site that has a minimum width of 48 public accommodations on site. These inches. tables were no longer present at the time of our inspection. None of the exterior dining tables depicted If the tables are reinstalled, provide at in the pre-suit photograph appear to be least one that has knee space compliant with the code. underneath it that is a minimum of 30 inches wide, 27 inches high, and projects back underneath the table a minimum of 19 inches (with no pedestal or pedestal base located anywhere within the rectangular dimension of this space). The current designated accessible parking Either remediate the current space serving this south of the mall is non- designated accessible parking space at compliant with code. The unloading zone the south end of the strip mall, or (if is 4 8 wide instead of the 8 width not shared), provide a new compliant required for a van accessible parking place. van accessible space at the north end The curb ramp provided to access the of the strip mall. Either way, the sidewalk projects into the unloading zone space shall be a fully compliant van and into the accessible parking space, accessible space, i.e., with the parking neither of which is permitted by code. The and unloading surface meeting the sign painted on the surface of the parking code's definition of "level" — i.e., no space has nearly been obliterated, which is slope or cross slope within these areas a violation of the obligation to maintain shall exceed 2% as measured in any accessibility features. No pole or wall- direction (fully eliminating the mounted sign has been provided at the end existing curb ramp that currently of this space. None of the lot entrances has projects into these spaces); the parking been posted with a sign indicating that area shall be restriped to a minimum vehicles parked in the accessible space of 9 feet wide and 18 feet long; the shall be towed away, nor has such a sign unloading zone shall be a minimum of been posted at the subject parking space. 8 feet wide and 18 feet long (as measured from the centerline to centerline of the striping); pole- or wall-mounted signage shall be centered at the head of the parking space, which shall also be mounted at the correct height; signage at the end of this space shall include a designation "van-accessible"; such signage shall have the required protective language warning that those illegally parked in the accessible space will be towed (alternatively, this information can be posted at each of the drive entrances to the general parking lot); and the unloading zone shall be hatched and contain the words "No Parking" painted within it. The slope of the curb ramp (between the Provide a new curb ramp that has a accessible parking space and the top of the maximum slope of 8.33%, a maximum sidewalk) is too steep, it has flared sides cross-slope of 2%, flared sides that do whose slope far exceeds the maximum not exceed 10%, a minimum width of permitted by code, and there is no tactile 48 inches, tactile domes on the surface warning on the surface of the curb ramp. of the ramp, and landings at the top and bottom that are level and unobstructed. The path of travel between the parking Provide wheel stops at the head of all space and the restaurant and/or other store parking spaces to prevent obstruction. fronts is constricted at places by the Survey, cut-out and replace all newspaper boxes, and overhanging parked sections of the sidewalk containing vehicles. The walkway has cross-slopes cross-slopes in excess of 2%. Remove along the outside edge of the walk that or relocate the newspapers to more exceed the 2% maximum cross-slope by appropriate location. Correct the many multiples. At the corner of the lot, sidewalk so that it has vertical change and near the connection of the two in elevation in excess of 1/4 inch or 1/2 buildings, there is a vertical change in rise inch beveled. in excess of 1/2 inch. The sanitary facility in the Italian Delite Reconfigure the layout of the restroom does not have an accessible route between to incorporate a portion of the corridor the service counter/main dining area and outside the restroom, and a minor the restroom. The ADA and Title 24 portion of the kitchen area to create a signage has not been provided. The width fully compliant single-occupancy of the entry door into the restroom is much restroom. Removes the tables along less than the minimum clear width required the accessible route to the restroom, or by the code. Inside the restroom, the reduce the size of the employee area facility fails to meet the minimum on the kitchen side of that corridor requirements of the code in almost every wall to provide a minimum of 36 respect. In summary, this restroom cannot inches clear between the end of the be entered or used by a disabled person tables and the face of the wall using a wheelchair or other mobility (Plaintiff believes placement of 2- assistive device. person tables can be achieved in this space). Or, provide a fully compliant single-occupancy restroom at another location that has an equivalent level of compliance. If such location is accessible only via an exterior route (and that is unprotected from the overhead weather elements), the existing interior restroom shall be permanently closed from all public use. This closure shall be accomplished via a locked entrance, a posted sign marked "For Employee Use Only, No Exceptions," and a written policy backed by employee training. The walkway along the Eastern face of Increase this walkway to a minimum Italian Delite is too narrow. width of 48 inches, insure the maximum slope is 5%, the maximum cross-slope is 2%. Provide along the exterior edge of the walkway that projects at least 6 inches above the walkway. Alternatively, the Defendants may eliminate this walkway per the Zwick Plans at Exhibit A. The walkway along the northeast corner of Provide wheel stops at each parking Italian Delite and the Stain Glass Shop has space at the north end of the building cross-slopes that exceed 2%, and has to prevent vehicles from overhanging parked vehicles overhanging the required the walkway; correct the sidewalk so clear width of the sidewalk. that the maximum cross-slope is 2%, and the minimum width is 48 inches. There are no designated accessible parking Provide one fully complaint accessible spaces serving the north end of the strip parking space at the north end of the mall. strip mall. The space shall be fully compliant van accessible space, i.e., with the parking and unloading surface meeting the code's definition of "level" — i.e., no slope or cross slope within these areas shall exceed 2% as measured in any direction (fully eliminating the existing curb ramp that currently projects into these spaces); the parking area shall be restriped to a minimum of 9 feet wide and 18 feet long; the unloading zone shall be a minimum of 8 feet wide and 18 feet long (as measured from the centerline to centerline of the striping); pole- or wall-mounted signage shall be centered at the head of the parking space, which shall also be mounted at the correct height; signage at the end of this space shall include a designation "van-accessible"; such signage shall have the required protective language warning that those illegally parked in the accessible space will be towed (alternatively, this information can be posted at each of the drive entrances to the general parking lot); and the unloading zone shall be hatched and contain the words "No Parking" painted within it. Said Zwick plans at Exhibit A shall cover the exterior path of travel, parking, signage, and restroom accommodations, whereas the Defendants have already complied with internal areas requested to be changed by Plaintiff (refrigerated drink cooler, its landing, service counter, and door). Therefore, as to the unperformed portion of retrofit represented in the Zwick plans the below remediation list is illustrative and in cases of ambiguity or conflict the Zwick plans shall control. In addition to the work described in the Zwick plans, Defendants shall provide parking bumpers in all parking spaces to protect the walkway along the eastern face of the building, and shall install a compliant ramp on the southern edge of the building to provide a compliant accessible route from the boundary of the site to the shopping center's walkway. As part of this modification, the Zwick In addition, the proposed designated disabled accessible parking depicted in the Zwick plans will be relocated alongside the aforementioned accessible route.18. Completion of Work. The parties acknowledge that Defendants have already completed the work associated with provision 3.104-3.110.
19. Performance Standards. The parties agree that the Zwick plans, if followed, shall cause the foregoing facilities shall be brought into full and strict compliance with the literal performance standards for altered facilities under the Americans with Disabilities Act Accessibility Guidelines, effective January 26, 1992. In agreeing to have the retrofit done pursuant to said plans, and for such only, Defendant hereby release all alleged claims defenses to literal compliance such as hardship, legal and physical constraint, technical infeasibility, 20% cost-cap, etc.; and Plaintiff waives any claim that such plans are insufficient or inadequate or other remedial measures are required.
20. Option to Close Facilities. In lieu of making modification to any particular facility or amenity called for by this decree, the Defendant may choose to permanently close/remove such facility, element or amenity from public use. Such facility, element or amenity shall not be reopened or re-provided for public use without provision of full disabled access pursuant to the terms of paragraph 17.
21. Time for Compliance. As to all other work, Defendant shall submit plans and apply for any necessary permits for this work within 60 days of the entry of this Order on the docket of the court, and complete all such work within 120 days of receiving permits, allowing for good faith interruptions due to inclement weather, contractor unavailability, and other causes under the Doctrine of Force Majeure. Permits from the building department shall be secured for all work. Defendant will provide written notice regarding the status of completion within 240 days after entry of this Order. Defendant shall then provide Plaintiff's, her attorneys and consultants with physical access to inspect, measure and photograph the facilities to verify that the completed work complies with the terms herein.
22. Enforcement. Should Plaintiff in the future become aware of any facts or conditions relating to the subject public accommodation that may give rise to a claim that Defendants have failed to comply with any of the injunctive relief provisions set forth herein, Plaintiff shall be permitted to file a noticed motion under the current case number of this action seeking enforcement of this Consent Decree, as well as if the noncompliance is shown to be intentional, contempt of court. The "prevailing party" in such motion proceedings, whether in full or in part, may be entitled to an award of reasonable attorney fees, litigation expenses and costs for such motion, i.e., the fee recovery shall be pursuant to the normal prevailing party standards that applied under the subject statutes before entry of this decree, under the subject fee shifting statutes named in the complaint and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Defendants may be entitled to recovery of attorney's fees in such proceeding only upon proof that Plaintiff's motion is frivolous or brought in bad faith, or that the noncompliance was de minimus, or that upon notice it was corrected.
23. With respect to the injunctive relief and damage claims resolved by this Order, the parties acknowledge that they waive the provisions of and any benefits that may be conferred by Civil Code section 1542 which reads:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
AGREEMENT CONCERNING DECLARATORY RELIEF
RESOLUTION OF STATUTORY DAMAGE CLAIMS
24.
26. The parties stipulate that the foregoing amount is intended to be paid in full to Plaintiff's, and understand that no part of it shall be received by Plaintiffs' counsel in compensation toward each Plaintiff's separate claim for reasonable statutory attorney fees, litigation expenses, and costs.
RESOLUTION OF CLAIM FOR REASONABLE STATUTORY ATTORNEYS FEES, LITIGATION EXPENSES AND COSTS :
27. Defendant agree to pay his the amount of $46,000 in full satisfaction of Plaintiffs' claims for interim and final claims for reasonable statutory attorney fees, litigation expenses and costs under Section 505 of the ADA [ 42 USC 12205]; and Civil Code Sections 52 and 54.3. A check for this amount shall be made payable to "TIM THIMESCH, IN TRUST," and delivered into Plaintiff counsel's hands within 21 days of Defendant' execution of this Full Consent Decree Judgment and Order. If overnight mail is used, Defendant shall supply Plaintiff's counsel with a tracking number.
FULL CONSENT DECREE JUDGMENT AND ORDER :
28. This Consent Decree constitutes the entire agreement between the parties on the matters of Plaintiff's claims for injunctive relief, statutory and personal injury damages, and reasonable statutory attorney fees, litigation expenses and costs, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Full Consent Decree Judgment and Order, shall be enforceable regarding the matters described herein.
CONSENT DECREE BINDING ON PARTIES AND SUCCESSORS IN INTEREST :
29. The parties agree and represent that they have entered into this Consent Decree voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to all matters related to this Consent Decree, after having received full advice from counsel.
30. This Consent Decree shall be binding on Plaintiff's and Defendants and any successors in interest. During the period of this Consent Decree, the parties have a duty to so notify all such successors in interest of the existence and terms of this Consent Decree during the period of the Court's jurisdiction of this Consent Decree.
CONSENT TO JURISDICTION OF MAGISTRATE JUDGE :
31. In accordance with the provisions of Title 28, U.S.C. Section 636(c), each undersigned party in the above-captioned civil matter hereby voluntarily consents to have a United States Magistrate conduct any and all further proceedings in the case related to enforcement of this Consent Decree. Appeal from such enforcement orders shall be taken directly to the United States Court of Appeals for the Ninth Circuit. Pursuant to this stipulation, each undersigned party requests that this matter be assigned specifically to Magistrate Judge James Larson.
JOINT PREPARATION AND SEVERABILITY :
32. This Consent Decree is deemed jointly prepared by all parties and shall not be strictly construed against any party as its drafter. If any term of this Consent Decree is determined by any court to be unenforceable, the other terms of this Consent Decree shall nonetheless remain in full force and effect.
SIGNATORIES BIND PARTIES :
33. Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Consent Decree.
SIGNATORIES BIND PARTIES :
34. This Consent Decree may be executed in counterpart signatures, and such signatures may be attached in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. Such counterparts may be signed as faxed signatures, which shall have the same force and effect as original signatures.
ORDER
IT IS SO ORDERED. _____________________________________________________________________________________________________
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EXHIBIT A
Exhibit