Yates et al v. Tequila Grill et al

Filing 14

ORDER re 13 CONSENT DECREE. Signed by Judge Claudia Wilken on 2/10/10. (scc, COURT STAFF) (Filed on 2/10/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

THOMAS E. FRANKOVICH (State Bar #074414) THOMAS E. FRANKOVICH, A PROFESSIONAL LAW CORPORATION 4328 Redwood Hwy, Suite 300 Telephone: [phone] Facsimile: 415/674-9900 Attorneys for Plaintiffs CRAIG YATES and DISABILITY RIGHTS ENFORCEMENT, EDUCATION, SERVICES: HELPING YOU HELP OTHERS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CRAIG YATES, an individual; and ) DISABILITY RIGHTS, ENFORCEMENT, ) EDUCATION, SERVICES:HELPING ) YOU HELP OTHERS, a California public ) benefit corporation, ) ) Plaintiffs, ) ) v. ) ) ) TEQUILA GRILL; ) CARMEN HERNANDEZ, RAFAEL ) HERNANDEZ, CARMELITA ) HERNANDEZ-RIVERA, GERARDO ) RIVERA, individuals dba TEQUILA ) GRILL, ) ) Defendants. ) ___________________________________ ) CASE NO. CV-08-3914-CW CONSENT DECREE

WHEREAS, plaintiffs' CRAIG YATES, an individual; and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS, on behalf of (himself/herself/themselves), has/have filed an action in the United States District Court, Northern District of California, alleging claims for damages and injunctive relief under the California Health & Safety Code Sections 19955, et seq., California Civil Code Sections 51, 51.5 and 54, et seq., and the Americans with Disabilities Act of 1990 (42 U.S.C. §12101, et seq.)

[PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

arising out of plaintiff's' visit to the TEQUILA GRILL on May 16, 2007, May 23, 2007, July 5, 2007, May 12, 2008 and July 16, 2008. WHEREAS, defendants TEQUILA GRILL is located at 1350 East 14th Street, San Leandro, California; and WHEREAS, plaintiffs CRAIG YATES and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS and defendants CARMEN HERNANDEZ, RAFAEL HERNANDEZ, CARMELITA HERNANDEZ-RIVERA, GERARDO RIVERA, individuals dba TEQUILA GRILL (all of which are hereinafter referred to as the "TEQUILA GRILL PARTIES") have agreed upon an Equitable Settlement pursuant to which RAFAEL HERNANDEZ shall perform certain remedial improvements at the restaurant as a result of this litigation; and WHEREAS, plaintiffs CRAIG YATES and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS and defendants the TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ agree that the settlement of this claim is made in good faith and in an effort to avoid expensive and protracted litigation, but without any admission or finding of liability or fault as to any allegation or matter; and WHEREAS, the men's restroom and the woman's restroom are not currently usable by a wheelchair user; and WHEREAS, the footprint of the men's restroom and that of the women's restroom as referred to as exhibit "A" and exhibit "B" respectively illustrate the "as is" configuration of said restrooms which is of insufficient size to meet the new construction standards of ADAAG; and WHEREAS, under the "readily achievable" standard of the Code of Federal Regulations it is not readily achievable to construct a fully compliant sanitary facility but allow for providing the greater amount of access to the extent feasible USING THE EXISTING MEN'S RESTROOM under said standards; and /// /// [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WHEREAS, the footprint of the existing men's restroom could be altered to create greater wheelchair access as shown in exhibit "C"; and WHEREAS, under the readily achievable standard the women's restroom can be converted to a unisex restroom and the men's restroom to a more accessible unisex restroom; and WHEREAS, the front entry door has a slope greater than 5%; and WHEREAS, the rear entry door has no slope. NOW, THEREFORE, it is ORDERED, ADJUDGED AND DECREED as follows: I. JURISDICTION A. The Court has jurisdiction over the subject matter of and the parties to this

Consent Decree pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §122101, et seq. B. Defendants TEQUILA GRILL PARTIES by and through RAFAEL

HERNANDEZ do not contest and agree not to contest the Court's jurisdiction to enter into and enforce this Consent Decree. II. DENIAL OF LIABILITY Defendants TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ deny any and all legal or equitable liability under any federal, state or local statute, regulation or ordinance, or the common law, for any damages or claims caused by or arising out of the of the TEQUILA GRILL PARTIES acts or inaction . By entering into this Consent Decree, or by taking any action in accordance with it, defendant TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ do not admit any allegations contained herein or in the complaint, nor do defendants, TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ admit any liability for any purpose or admit any issue of law or fact or any responsibility for the alleged noncompliance of the TEQUILA GRILL PARTIES with the Americans with Disabilities Act of 1990 ("ADA"), Americans with Disabilities Act Accessibility Guidelines (ADAAG), California Building Code, or any other state or federal building code or statute. /// /// [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

III. PURPOSE The purpose of this Consent Decree is to resolve amicably the existing dispute between/among the parties hereto as to whether remedial improvements at the restaurant are necessary to provide access to persons with disabilities and to settle the claims asserted against defendants in the complaint filed in this matter. IV. BINDING EFFECT The undersigned representative certifies that he/she is an officer or agent of the

TEQUILA GRILL PARTIES and is fully authorized to enter into the terms and conditions of this Decree and that he or she is fully authorized to execute this document and legally bind TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ to the provisions of this Decree. B. The undersigned representative certifies that he/she is an officer or agent of

CRAIG YATES and is fully authorized to enter into the terms and conditions of this, that he/she is fully authorized to execute this document and legally bind CRAIG YATES to the provisions of this Decree, and that such party has not assigned, transferred or purported to assign or transfer, to any person or entity any claim or other matter which is the subject of this Decree. C. The undersigned representative certifies that he/she is an officer or agent of

DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS and is fully authorized to enter into the terms and conditions of this, that he/she is fully authorized to execute this document and legally bind DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS to the provisions of this Decree, and that such party has not assigned, transferred or purported to assign or transfer, to any person or entity any claim or other matter which is the subject of this Decree. D. RAFAEL HERNANDEZ has agreed to assume the full financial and equitable

responsibility for all TEQUILA GRILL PARTIES for both monetary payments and remedial work set forth herein. /// /// [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

///

VI. WORK TO BE PERFORMED A. Specifically, as settlement of the equitable claim brought by Plaintiffs CRAIG

YATES and DREES, DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS, the TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ shall undertake remedial measures to make the following elements of the Tequila Grill accessible, which constitutes the removal of architectural barriers pursuant to the readily achievable standard as set forth in the code of federal regulation 28 CFR 36.304 The Americans with Disabilities Act of 1990 and the Americans with disabilities Act Access guidelines (ADAAG). as referred to in the ADA and ADAAG, to persons with disabilities, including: a. Provide a more accessible restroom by converting the existing men's restroom into a more accessible unisex restroom; - as illustrated in Exhibit "C" b. c. Convert the women's restroom into a unisex restroom; Provide directional signage at the front entrance, a minimum of 96 square inches (can be larger) on International Blue background ISA symbol of access (wheelchair) in white lettering with arrow which states "Accessible entrance at rear of building"; d. Change the hardware to provide door pressure at rear entrance which is 5lbs or less; e. Provide rear door with 32inch clearence in which the panic hardware is not a factor f. Provide signage at rear entrance with ISA symbol of access including rear entrance as accessible; B. The work to be performed pursuant to this Consent decree shall be completed by

December 31, 2010. VII. READILY ACHIEVABLE STANDARD [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The remedial work set forth herein meets the "readily achievable" standard of the Americans with Disabilities Act of 1990. VIII. MONETARY PAYMENT A. In full and complete settlement of plaintiffs monetary claims against the

TEQUILA GRILL PARTIES, it is further agreed that TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ shall pay Plaintiffs DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS and CRAIG YATES and their counsel Thomas E. Frankovich, A Professional Law Corporation, the sum of Ten Thousand Dollars ($10,000 ), in full and final settlement of all claims for damages, attorneys' fees, costs and litigation expenses no later than October 1, 2010 as set forth in a separate Release. The Release itself is not apart of the Consent Decree. IX. MODIFICATION There shall be no modification of this Consent Decree without written approval of both parties hereto. X. EFFECTIVE DATE This Consent Decree is effective upon the date of its entry by the Court. XI. CONTINUING JURISDICTION The Court specifically retains jurisdiction over both the subject matter of and the parties to this action for the duration of this Consent Decree for the purpose of issuing such further orders or directions as may be necessary or appropriate to construe, implement, modify, enforce, terminate, or reinstate the terms of this Consent Decree, including but not limited to attorneys' fees, costs and litigation expenses incurred in enforcing this Agreement, or for any further relief as the interest of justice may require. /// /// /// /// /// [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/// /// XII. TERMINATION AND SATISFACTION A. Upon defendant RAFAEL HERNANDEZ, completion of the work to be

performed, as specified, pursuant to this Consent Decree, on or before December 31, 2010, whichever occurs earlier, Court's jurisdiction of this matter shall terminate unless the parties show good cause for the continuance of this Consent Decree. The undersigneds hereby consent to the foregoing Consent Decree.

For Defendants TEQUILA GRILL PARTIES by and through RAFAEL HERNANDEZ .

Dated: January 27, 2010

_____________/S/____________________ RAFAEL HERNANDEZ

//// /// /// /// /// /// /// /// /// /// /// /// [PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/// /// For Plaintiff CRAIG YATES, DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS.

Dated: January 28, 2010

___________/S/_______________________ CRAIG YATES

Dated: January 28, 2010

_____________/S/_____________________ PATRICK CONNALLY - President

ORDER IT IS SO ORDERED. 2/10/10 Dated: __________________

____________________________________ Honorable Judge Claudia Wilken

[PROPOSED] CONSENT DECREE YATES, et al v. TEQUILA GRILL, et al

8