IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION ________________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) v. ) ) Civil Action No. ) MARIE A. WYNOCK and RICHARD ) WYNOCK, d/b/a THE OCEAN ) PLAZA MOTEL, ) ) Defendants. ) ________________________________________) CONSENT AGREEMENT AND ORDER I. Introduction The United States has filed this action to enforce provisions of the Americans with Disabilities Act ("ADA") against Marie A. Wynock, owner and operator, and Richard Wynock, operator, ("Defendants"), of the Ocean Plaza Motel ("Motel"), pursuant to 42 U.S.C.  12188(b)(1)(B). The United States alleges that Defendants violated title III of the ADA, 42 U.S.C.  12181-89, and the Department of Justice's implementing regulation, 28 C.F.R. pt. 36. In November 1995, the United States notified Defendants that it had received a complaint alleging that the Motel had refused 01-07262 accommodations to persons with disabilities. The complainant alleged that on July 21, 1995, Defendants refused to allow the Chaneys (Betty Chaney and her disabled son Jackie) and the Jones' (Mary Jones and her disabled daughter, Debra) to occupy a room they had reserved at the Ocean Plaza Motel. The complainant alleged that their exclusion was based on the fact that Jackie Chaney and Debra Jones are persons with disabilities who use wheelchairs. On December 14, 1995, after an investigation of this matter, the United States notified Defendants that these actions, and the existence of numerous architectural barriers to access, constituted violations of the ADA. It invited the Defendants to enter into a consent agreement (to be filed simultaneously with the complaint) in order to correct the specified violations of the ADA. Since that time, the parties have engaged in good faith negotiations in an effort to resolve this dispute expeditiously and without resort to costly and protracted litigation. As the result of these discussions, Defendants have voluntarily agreed to take the steps outlined in this Order to ensure that persons with disabilities have an equal opportunity to enjoy the goods, services, and facilities of the Ocean Plaza Motel. II. AGREEMENT AND ORDER For the purposes of this Agreement and Order, the parties agree as follows: - 2 - 01-07263 A. This Court has jurisdiction of this action under 42 U.S.C.  12188(b)(1)(B) and 42 U.S.C.  1331 and 1345. B. Defendants are a public accommodation within the meaning of title III of the ADA, 42 U.S.C.  12181(7)(B) and its implementing regulation, 28 C.F.R.  36.104. C. The conduct described above violates title III of the ADA, 42 U.S.C.  12181 et seq., and its implementing regulation, 28 C.F.R. Part 36. D. This Agreement and Order is final and binding on the parties to this action, including all principals, agents and successors in interest of the Defendants. ACCORDINGLY, IT IS ORDERED THAT: 1. The Defendants have submitted to the United States for its approval a formal written policy that individuals with disabilities will be treated in a nondiscriminatory manner in accordance with the ADA and will be afforded the same service and courtesy as that afforded any other guest or customer of the Motel. This policy, attached as Appendix B, has been approved by the United States, and it will be posted in a prominent location in the registration lobby of the Motel. 2. The United States has also approved the Defendants' written policy, attached as Appendix C, directing its personnel that: - 3 - 01-07264 a. Accessible guest rooms shall not be rented to non-disabled guests unless there are no other guest rooms available for rental in the facility; b. All non-disabled guests occupying accessible rooms shall be informed that they will be required to change rooms if the accessible room is subsequently needed to accommodate a person with a disability. Pursuant to this policy, Ocean Plaza Motel personnel shall move non-disabled guests from accessible rooms whenever a guest with a disability requires the room, unless there are no other guest rooms available at that facility. c. Guests requesting accessible guest rooms shall be permitted to guarantee a reservation for an accessible room as long as they present the appropriate form of payment assurance designated by the Ocean Plaza Motel for guaranteeing a reservation of any other guest room. d. Guests with disabilities shall not be required to rent an accessible room if, when given the choice to rent an accessible room or an inaccessible room, the guest chooses to rent an inaccessible room. 3. Defendants shall train all current and future employees in the equal and dignified treatment of guests with disabilities in compliance with the ADA. Defendants have submitted a written - 4 - 01-07265 proposal to the United States detailing Defendants' training program. The plan, attached as Appendix D, has been approved and provides for training in the following areas: the provision of assistance during the guest registration process to guests with disabilities; the reservation policy specified in paragraph 2 above; and the proper installation, use and maintenance of, portable auxiliary visual alarms, notification devices and communication devices, such as text telephones. Training shall be provided to current employees no later than thirty (30) days after this Order has been signed and filed with the Clerk's Office, and within one month of the date of hire for each new employee. 4. Defendants shall begin removing the architectural barriers to access at the Ocean Plaza Motel specified in Appendix A, Phase I immediately, and all work from Phase I shall be completed no later than by April 1, 1997. In those instances where existing elements, spaces, or common areas are altered for this purpose, then each alteration shall comply with 28 C.F.R. pt. 36,  36.304(d), (e), (g), and  36.305. Any deviations from the Standards must be approved in writing by the United States prior to the commencement of work. No later than May 1, 1997, the Defendants shall certify to the Department, in writing, that they have removed all architectural barriers to access listed in -5- 01-07266 Appendix A, Phase I, in conformance with the Standards, and shall provide photographs showing the completed modifications. 5. Defendants shall remove the architectural barriers to access at the Ocean Plaza Motel specified in Appendix A, Phase II by December 31, 1997. In those instances where existing elements, spaces, or common areas are altered for this purpose, then each alteration shall comply with 28 C.F.R. pt. 36,  36.304(d), (e), (g), and  36.305. Any deviations from the Standards must be approved in writing by the United States prior to the commencement of work. No later than January 15, 1998, the Defendants shall certify to the Department, in writing, that they have removed all architectural barriers to access listed in Appendix A, Phase II, in conformance with the Standards, and shall provide photographs showing the completed modifications. 6. In the event that the 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 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 Defendants for obtaining the permit or approval, or is denied, the Defendants shall promptly notify counsel for the United States. The parties shall -6- 01-07267 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. 7. Within ninety (90) days of entry of this Order, Defendants shall provide: a. Six sets of portable auxiliary visual alarms and notification devices to alert room occupants of incoming telephone calls and a door knock or bell at the front lobby desk. Standards  9.3.1, 9.3.2. Post signs at the front lobby desk and in each of the designated accessible rooms notifying guests of the availability of the equipment. b. Three text telephones at the front lobby desk. Standards  9.3.1, 9.3.2. Post signs at the front lobby desk and in each of the designated accessible rooms notifying guests of the availability of the equipment. c. Telephones with volume controls in the three designated accessible rooms. Three additional telephones with volume controls shall be available at the front lobby desk for guests with hearing impairments. Standards  9.3.1, 9.3.2. Post signs at the front lobby desk notifying guests of the availability of the equipment. -7- 01-07268 8. No later than ninety (90) days after the entry of this Order, the Defendants shall pay the sum of $16,000 in damages each to Jackie Chaney and Debra Jones, and $7,500 in damages each to Betty Chaney and Mary Jones. 9. No later than June 1, 1997, the Defendants shall pay the additional sum of $22,774.29 in damages each to Jackie Chaney and Debra Jones. 10. No later than six (6) months from making the payments specified in paragraph 8 above, the Defendants shall pay the sum of $5,000 in civil penalties to the United States. 11. Within seven (7) days of each monetary payment specified in paragraphs 8-9 above, Defendants shall submit proof of each payment. Such proof shall be in the form of copies of the checks and the transmittal letter(s), and shall be sent to counsel for the United States. 12. The parties shall attempt in good faith to negotiate a resolution of any dispute relating to the interpretation or implementation of this Agreement and Order before bringing the matter to the Court's attention for resolution. 13. The United States may review compliance with this agreement at any time. If the United States believes that the Defendants have violated this agreement or any requirement contained herein, it agrees to attempt to seek an amicable - 8 - 01-07269 resolution of the matter with the Defendants. If the parties are unable to reach an amicable resolution of the matter, the United States may seek appropriate relief from this Court. If the Court makes a determination of a violation of this Agreement and Order, the Court may award a civil penalty of up to One Hundred Thousand Dollars and No Cents ($100,000.00). The Court may also award damages to any person aggrieved by the violation. Failure by the Department to seek enforcement of this Agreement and Order with regard to one provision shall not be construed as a waiver of its right to do so with regard to the same or other provisions of this Order. 14. The United States agrees that Defendants' completion of the steps set forth in this Agreement and Order will fully resolve this investigation. 15. This Court shall retain jurisdiction of this action to enforce provisions of this Agreement and Order for three (3) years from the date of entry of this Order. After such time, all of its provisions shall be terminated, unless the Court determines it is necessary to extend any of its requirements, in which case those specific requirements shall be extended. 16. Compliance with this Agreement and Order does not affect Defendants' continuing responsibility to comply with all aspects of the ADA, including the employment provisions, new construction and alterations obligations, and readily achievable barrier removal obligations arising in connection with other parts of the Ocean Plaza Motel. - 9 - 01-07270 17. This Agreement and Order is limited to the facts set forth herein and it does not purport to remedy any other possible violations of the ADA. Entered and Ordered this 12th day of September, 1996, by: (Signature) ______________________________ Honorable United States District Judge Agreed and Consented to: Plaintiff: UNITED STATES OF AMERICA J. RENE JOSEY DEVAL L. PATRICK United States Attorney Assistant Attorney General for the District Civil Rights Division of South Carolina (Signature) Phyllis M. Cohen __________________________ JOHN B. GRIMBALL (Bar #2480) JOHN L. WODATCH, ESQ. Chief of the Civil Division L. IRENE BOWEN, ESQ. United States Attorney's Office SHEILA K. DELANEY, ESQ. 1st Union Building PHYLLIS M. COHEN, ESQ. 1441 Main Street Disability Rights Section Suite 500 Civil Rights Division Columbia, SC 29201 U.S. Department of Justice (803) 929-3000 P.O. Box 66738 Washington, D.C. 20035-6738 (202) 514-3882 Defendants: MARIE A. WYNOCK, OWNER AND OPERATOR, AND RICHARD WYNOCK, OPERATOR, OF THE OCEAN PLAZA MOTEL (Signature) By: __________________________ MARIE A. WYNOCK (Signature) ________________________ RICHARD WYNOCK 01-07271 APPENDIX A Phase I Barriers to be Removed by April 1, 1997: 1. Provide properly demarcated access aisles for the two designated accessible parking spaces at the street level parking lot. Standards  4.6.3, 4.1.2(5)(a). 2. Designate one van accessible parking space at the street level parking lot immediately outside the pool overhang with properly demarcated access aisle and van accessible sign. Standards  4.1.2(5), 4.6.1, 4.6.4, 4.6.5. 3. Mount all accessible parking space signs at a level high enough to be visible over a parked vehicle. Standards  4.6.4. 4. Repair all measurable cracks in the concrete at the street level parking lot. Standards  4.1.2(1), 4.3.2(1). 5. Place planters, newspaper racks or other similar cane- detectable protection immediately under the two wall sconces outside the lobby entrance. Standards  4.4.2. 6. Replace the "Office" sign with one that fully complies with the standards for character height and proportion, finish and contrast. Standards  4.1.2(7), 4.30.1, 4.30.2, 4.30.3, and 4.30.5. 7. Provide a level maneuvering clearance at the lobby entrance door and reduce the slope of the ramp to no more than 1:12. Standards  4.7.2, 4.8.2. 8. Remount all hallway wall sconces to at least 80 inches high or replace with fixtures which protrude less than 4 inches into the path of travel. Standards  4.4.1. 9. Bridge the 2 1/2 inch change in level from the building pathway (access to the pool) to the pathway to the designated accessible rooms with a ramp. Standards  4.1.2(2), 4.5.2. 10. Remount all exit signs to at least 80 inches high. Standards  4.1.2(3), 4.4.1. 11. Provide an auxiliary counter at the registration desk or prominently display a sign at the registration desk stating the Motel's policy to provide guests with necessary assistance during the guest registration process. Standards  7.2(2). 12. If a floor mat is provided at the front door, it must be stable, firm and slip-resistant. Standards  4.5.1, 4.5.3. A-1 01-07272 13. Provide appropriate sized raised characters and Braille floor designations at both jambs of the elevator hoistway entrances so the centerline of the characters are 60 inches above finish floor. Standards  4.10.5, 4.30.4. 14. Provide an accessible route to the elevator from the designated accessible rooms, including modifying the ramp and adjoining corridor at the ground floor threshold of the elevator. Standards  4.10.1. 15. Adjust elevator door re-opening device to remain effective for a minimum of 20 seconds. Standards  4.10.6. 16. Provide appropriate sized raised characters and Braille at the car control buttons. Standards  4.10.12(2), 4.30.4. 17. Designate the main entry floor (second level) on the car control panel by a raised star. Standards  4.10.12(2). 18. Identify the existing emergency communication system, an intercom linked to the office, by a raised symbol or lettering adjacent to the intercom. Standards  4.10.14, 4.30. 19. Remove the accessibility pictograms at designated accessible rooms #102, 103 and 109. Provide room number signs with appropriate sized raised characters and Braille at all guest room doors. Standards  4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5, 4.30.6. 20. Bevel the thresholds at the entrance doors to the three (3) designated accessible rooms to no more than 1/2 inch high with a slope no greater than 1:2. Standards  4.13.8, 9.2.2(3). 21. Replace the door knobs at the entrance doors to the three designated accessible rooms with lever-operated or comparable controls or mechanisms. Standards  4.13.9, 9.2.2(3). 22. Raise the ceiling-mounted chain or swag lamps in the designated accessible rooms so the bottom edge of the lamps is no lower than 80 inches above the finish floor. Standards  4.4.2. 23. Place the television sets in the designated accessible rooms on top of the dressers and remove the television brackets mounted to the walls. Standards  4.4.2. 24. Bevel the change in level where the carpet meets the vinyl flooring to a slope less than 1:2 in the designated accessible rooms. Standards  4.3, 9.2.2(2). A-2 01-07273 25. Rearrange furnishings in the designated accessible rooms to provide an accessible route to light switches, controls, dispensers, and similar devices in the designated accessible rooms. Remount towel dispensers and other controls and operating mechanisms at a height complying with the Standards for the approach provided. Standards  4.3, 4.2.5, 4.2.6, 9.2.2(2). 26. Provide controls for light fixtures in the designated accessible rooms that can be operated with one hand, and without tight grasping, pinching, or twisting of the wrist. Standards  4.27, 9.2.2(5). 27. Rearrange furnishings in designated accessible rooms #102 and 103 to provide 36 inches of maneuvering space between the two beds. Rearrange furnishings in designated accessible room #109 to provide at least 36 inches of maneuvering space along one side of the single bed. Standards  9.2.2(1). 28. In the kitchenette in designated accessible room #102, place the microwave oven on the counter top so the controls can be reached. Standards  9.2.2(7). 29. Replace the sink faucet hardware in the kitchenette in designated accessible room #102 with lever-operated or comparable controls or mechanisms. Standards  4.27, 9.2.2(7). 33. Mount the grab bars at the toilets in the designated accessible rooms at a height which complies with the Standards. Standards  4.16.4. 34. Modify the lavatory apron to provide the required knee clearance as measured from the finished floor in each designated accessible room. Standards  4.19.2. 35. Insulate hot water and drain pipes under the lavatory in each designated accessible room. Standards  4.19.4. 36. Replace the lavatory faucet hardware with lever-operated or comparable controls or mechanisms. Standards  4.19.5, 4.27.4. 37. Lower the mirror in each designated accessible room so the bottom of the reflecting surface is no higher than 40" from the finished floor. Standards  4.23.6, 4.19.6. 38. Towels shall be stored on the lavatory counter in each designated accessible room. Standards  4.23.7, 4.27.2, 4.2.4, 4.27.3. A-3 01-07274 39. Remount the clothes rod and storage shelf in each designated accessible room so they are no higher than 48 inches from the finished floor. Standards  4.25.3, 9.2.2(4). 40. Provide a bathtub seat in the bathtub in each of the designated accessible rooms that can be securely fastened as well as removed. Standards  4.20.3, 4.23.8. 41. Provide grab bars in the bathtub of each designated accessible room at a height and location that complies with the Standards. Standards  4.20.4, 4.23.8. 42. Provide bathtub controls in each designated accessible room that are lever-operated or comparable. Standards  4.20.5, 4.23.8, 4.27.4. 43. In each designated accessible room, provide a lever-operated or comparable mechanism at a height that complies with the Standards to operate the toilet room door. Standards  4.13.9. 44. Reposition furniture to provide the required maneuvering space at the entrance door to Room 109. Standards  4.13.6. 45. Adjust the door closers at the doors to the bridge so they close more slowly. Standards  4.13.10. Phase II Barriers to be Removed by December 31, 1997: 1. Provide audible and visual hall lanterns at the elevator. Standards  4.10.4. 2. Provide audible signal sound or automatic verbal announcement as the elevator car passes or stops at a floor. Standards  4.10.13. 3. Remove part or all of the wall dividing the lavatory from the toilet and tub area to provide more clear floor space at the toilet in each designated accessible room. Standards  4.16.2. 4. Reverse the swing of the toilet room door in Rooms 102 and 103 to increase maneuvering space at the pull side of the toilet room door. Standards  4.13.6. 5. Provide a level maneuvering clearance at the door on the accessible route to the bridge leading to the indoor pool. Standards  4.13.6. 6. Adjust the door opening force for the doors to the bridge to comply with the Standards. Standards  4.13.11. A-4 01-07275 7. Provide the required maneuvering space on the pull side of the doors to the indoor pool by reversing the swing on the doors, or provide an automatic or power-assisted door opening device. Standards  4.13.6. 8. Provide a hand held shower spray with a 60" hose at the outdoor shower at the outdoor pool. Standards  4.21.6. 9. Replace the shower controls at the outdoor pool shower with lever-operated or comparable controls or mechanisms. Standards  4.21.5, 4.27.4. 10. Provide an accessible route from the concrete outdoor pool deck to the wood outdoor pool deck. Standards  4.1.2(2), 4.3. A-5 01-07276 APPENDIX B GENERAL POLICY 1. All individuals with a disability shall be granted equal consideration with regard to room accommodations without reference to their limitations or disability. 2. Under no circumstances shall an individual with a disability be treated in a discriminatory manner in the provision of a guest room or any services of the Ocean Plaza Motel. 3. All individuals with disabilities shall have the right to rent any type of accommodation available at the Ocean Plaza Motel, including accessible and non-accessible rooms. 4. All individuals, with or without disabilities, shall be subject to the same motel reservation policy. The Ocean Plaza Motel reservation policy is readily available to the general public as published in Ocean Plaza Motel rate sheets. These rate sheets clearly indicate the availability of, and categories of, accessible rooms. (Rate sheet is attached.) 5. Ocean Plaza Motel Management and employees shall make every effort to assist an individual with a disability with the registration process, the use of any hotel equipment, and with the use of any motel facility or service available to guests. B-1 01-07277 APPENDIX C RESERVATION POLICY 1. All potential guests and booking agents inquiring into guest rooms at the Ocean Plaza Motel, whether by telephone or in writing, shall be informed of the existence of accessible rooms. 2. Accessible guest rooms shall only be rented to non- disabled individuals in the event that all non-accessible rooms in the Motel are taken or reserved. Any non-disabled individual who, under those circumstances, rents an accessible room shall be notified that, 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, the Motel will relocate the non-disabled individual to a non-accessible room. C-1 01-07278 APPENDIX D EMPLOYEE TRAINING 1. All employees shall be familiar with the general provisions of the Americans with Disabilities Act as it relates to the operations of a motel. 2. All employees shall be instructed in the nondiscriminatory treatment of all guests, including those guests with disabilities. 3. All employees shall be instructed in the use of portable auxiliary visual alarms, notification devices and communication devices. 4. All employees shall be instructed in providing assistance during the guest registration process to guests with disabilities. 5. All employees shall be instructed in the Motel's reservation policy. D-1 01-07279