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Craig Yates v. Cafe Divino; Frederick J. Perry Iii; Mangia E. Bevi


September 21, 2011


The opinion of the court was delivered by: Joseph C. Spero Magistrate Judge

Civil Rights



Plaintiffs' Qualified Disability

Plaintiff's Status as Aggrieved and Potentially Aggrieved Qualified Facilities

Alteration History Scope of Facilities in Issue .




Agreement to Cooperate With Performance of Other Remaining


Performance Standards

Option to Close Facilities

Time for Compliance Enforcement


Resolution of Plaintiffs' Claim for Statutory Damages

Resolution of Claim for Reasonable Statutory Attorneys' Fees, Litigation

Expenses And Costs





(hereafter "Consent Decree") in order to fully resolve the issues, claims and defenses in this 5 case. Neither this Consent Decree Order and Judgment is or shall be construed as an admission 6 by the defendants of the truth of any allegation or the validity of any claim asserted in the 7 complaint, or of the defendants' liability therefore, nor as a concession or an admission of any 8 fault or omission of any act or failure to act, or of any statement, written document, or report 9 heretofore issued, filed or made by the defendants. This Consent Decree Order and Judgment is 10 entered into for the sole purpose of resolving and settling this matter. 11

2. Plaintiff CRAIG YATES is a person with a disability whose condition requires 12 the full time use of a wheelchair for mobility. He also has incomplete quadriplegia that affects 13 his reach-range and diminishes his ability to access objects that involve grasping, pinching or 14 twisting of the wrist. 15 (hereafter "Tenant") is the owner, operator, and lessee of the public accommodation Cafe 17

It leases the property from Defendant FREDERICK J. PERRY III, Trustee of the Fred Perry, 19 Landlord. Together, the subject Tenant and Landlord shall be referred to as Defendants; and 21 together Plaintiff and the Defendants shall be referred to collectively herein as the Subject 22

4. Plaintiff filed this action for himself and all other similarly situated members of 24 the public to vindicate their rights under the Americans with Disabilities Act of 1990 ("ADA"), 25

5. Plaintiff alleges that the subject Defendants violated these statutes by failing to 27 provide full and equal access and related facilities, including, but not limited to, an accessible 28 entrance, and accessible route throughout the restaurant, an accessible bar counter, an


1. The subject parties enter this Full Consent Decree Order and Judgment

3. Defendant MANGIA E. BEVI, INC. sued erroneously herein as Cafe Divino Divino, located at 37 Caledonia Street, Sausalito, California (hereafter, "Subject Restaurant"). 18

Jr. Trust, sued erroneously herein as Frederick J. Perry III, who shall be referred to herein as 20 Parties. 23

42 U.S.C. §§ 12101 et seq., and Civil Code Section 54 and 54.1.

accessible dining table connected to a clear floor space, and an accessible public restroom. 2

Specific identification of the facilities and their alleged deficiencies were identified in the 3

6. Plaintiff alleges that the subject building and site has undergone construction

5 triggering the requirement of full compliance with regulations in the altered areas, and that 6 further Defendants could easily afford to makes its facilities and services accessible without 7 significant difficulty or expense. 8 9

7. Plaintiffs Qualified Disability. Plaintiff qualifies as a "person with a physical

11 disability" as defined by the relevant statutes. 12

YATES has standing to bring this action, that he lives in Terra Linda, that he however regularly 14 conducts personal affairs in Sausalito, which activity includes dining and shopping. While the 15

Defendants do not admit all of the foregoing allegations, they agree that sufficient undisputed 16 facts exist supporting Plaintiff's qualification as "aggrieved and potentially aggrieved" under 17 the relevant statutes, and his individual standing under Article III of the U.S. Constitution. 18

"commercial facility" under all applicable statutes and regulations. 20

21 sufficient and recent alteration and/or new construction to require compliance with the 22

Americans With Disabilities Act Access Guidelines published in 1992, as it applies to altered 23 facilities, and that the restaurant is otherwise subject to the requirements of Civil Code Section 24

11. 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 main entrance of 27 the restaurant, the dining table facilities, the bar and coffee counter, and the public restrooms. 28

Complaint filed on October 25, 2010. 4


8. Plaintiff's Status as Aggrieved and Potentially Aggrieved. Plaintiff CRAIG

9. Qualified Facilities. Cafe Divino qualifies as a "public accommodation" and

10. Alteration History. Plaintiff alleges that all facilities in issue have undergone 54.3 and Title 24, Part II, of the California Code of Regulations.

3 jurisdiction pursuant to 28 U.S.C. §1331 for the alleged violations of the ADA, 42 U.S.C. §§ 4

12101, et seq. Article III jurisdiction is proper due to the Plaintiff's continued exposure and 5 use of the restaurant for dining. Pendant jurisdiction of the state law claims arises from a 6 common nucleus of fact and is proper. 7

Consent Decree until defendants have fulfilled all conditions hereunder. This agreement is 9 contingent upon the Court's acceptance of this continuing jurisdiction. 10

14. The parties agree to entry of this Consent Decree in order to resolve the below

11 listed allegations raised in the Complaint filed with this Court on October 25, 2010. 12

Accordingly, the parties agree to this Consent Decree without trial or further adjudication of 13 any issues of fact or law concerning the issues specified herein. 14

15. In entering this Consent Decree, Defendants agree this Consent Decree fully

15 vindicates Defendants' alleged violation of Plaintiff's rights under the Americans with 16

WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Full

Consent Decree Judgment and Order, which provides as follows: 19 20

16. This Consent Decree shall be a full, complete, and final disposition and

22 settlement of the below claims that have been or could have been alleged in the Complaint, 23 including for injunctive relief, declaratory relief, statutory and compensatory damages, 24 including personal and bodily injury, and Plaintiff's claims for reasonable statutory attorney 25 fees, litigation expenses and costs. This Consent Decree was reached through negotiations 26 between the Subject Parties. The Court shall retain jurisdiction of this action to enforce and 27 interpret this Full Consent Decree Judgment and Order. The parties agree that if they or any of 28 them seek Court enforcement of this Full Consent Decree Judgment and Order, any such


12. The facts requisite to federal jurisdiction are admitted. This Court has

13. This Court shall have continuing jurisdiction to interpret and enforce this Disabilities Act and Civil Code Section 54 and 54.1. 17


enforcement will be by noticed motion, application or other appropriate request for an order for 2 specific performance, and that a contempt citation or decree will not be sought by any party. 3 4

17. Specific Agreed Remediations. As a part of a compromise of global liability,

6 the Defendants each agree that they shall be jointly and severally responsible to perform the 7 following work to provide disabled access at the Subject Restaurant: 8

9 use of an automatic door opener, and in accordance with the plans and drawings attached hereto 10 as Exhibit A. 11

b. Create and/or maintain an accessible circulation route throughout the

12 restaurant and between the tables and bar counter that is maintained at a 36 inches minimum 13 between stools, chairs, and tables. 14

c. Provide one accessible dining table in both the front dining room and a

15 second in the rear dining room that is located on an accessible route and with clear floor space 16 for two wheelchair spaces on either side that are located outside the general path of travel. 17

Such tables shall provide knee space underneath that is a minimum of 30 inches wide, 27 18 inches high, and projects back underneath the table a minimum of 19 inches. No pedestal 19 support or pedestal base shall be located anywhere within the rectangular dimension of the 20 foregoing clear space. 21

d. Provide a permanent lower section of the bar counter that has a minimum

22 length of 60 inches, and a maximum height of 34 inches above the finished floor, as reflected in 23 the drawings attached hereto as Exhibit A hereto. The Parties agree that this counter may be 24 installed permanently along the face of the bar counter, that it shall have proper knee space, but 25 with no portion of the upper bar counter being allowed to project over the top of the lower 26 counter as set forth in the drawing attached hereto as Exhibit A.. Defendants will attempt to 27 obtain approval from the relevant governmental authorities for a pass-through slot to be 28 provided along the face of the counter for drink or food service. The permanent lower section


a. Create a fully compliant door landing at the main entrance through the

of the counter should be as stable as any of the dining tables that are earmarked for the mobility 2 impaired. 3

4 coffee dispensers, etc. are set next to a clear floor space and within a compliant reach range. 5

6 new tables that are 3'0" wide maximum, as depicted in Exhibit A at 7-A2.1. 7

8 accordance with the plans and drawings attached hereto as Exhibit A, but with the following 9 two exceptions: 10

inches clear.

ii. The swinging door leading from the sink alcove to the water

closet shall not utilize a latch, but shall swing clear when pushed.

The door shall be equipped only with a privacy dead-bolt.

18. Performance Standards. All of the foregoing work specified in Paragraph 17

16 shall be brought into full and strict compliance with the literal performance standards for 17 altered facilities under the Americans with Disabilities Act Accessibility Guidelines, effective 18

January 26, 1992, and under California's Title 24, (2010), whichever, for any particular 19 element, provides the strongest level of protection to persons with disabilities, or as otherwise 20 specified in paragraph 17. Defendants hereby release all alleged defenses to literal compliance 21 with respect to the work that have not been expressly reserved herein, including, but not limited 22 to, unreasonable hardship, undue hardship, legal and physical constraint, technical unfeasibility, 23

19. Option to Close Facilities. In lieu of making modification to any particular

25 facility or amenity called for by this decree, the Defendants may choose to permanently 26 close/remove such facility, element or amenity from public use. Such facility, element or 27 amenity shall not be reopened or re-provided for public use without provision of full disabled 28 access pursuant to applicable law.

e. Ensure that all other amenities in the restaurant, including coat hooks,

f. For the clear aisle between the face of the bar and dining tables, provide

g. Provide a fully compliant accessible restroom. The restroom may be in

i. The open doorway for the sink alcove shall be enlarged to 48

20% cost-cap, etc. 24

2 work within 360 days from the date of the Decree, allowing for good faith interruptions due to 3 inclement weather, contractor unavailability, and other causes under the Doctrine of Force 4

Majeure. Permits from the building department shall be secured for all work that requires such 5 permits. Defendants will provide written notice regarding the status of completion within 390 6 days after entry of this Order. Defendants shall then provide Plaintiff, his attorneys and 7 consultants with physical access to inspect measure and photograph the facilities to verify that 8 the completed work complies with the terms herein. 9

10 conditions relating to the subject public accommodation that may give rise to a claim that 11

Defendants have failed to comply with any of the injunctive relief provisions set forth herein, 12 he shall, prior to filing suit, provide written notice to Defendants, and through their counsel at 13 then then currently registered address with the state bar. Defendants shall have thirty (30) days, 14 following receipt of the notification described in paragraph (a) above, to undertake to correct 15 the alleged violation and/or respond in writing to Plaintiff's allegations. If the parties are 16 unable to resolve their differences, Plaintiff shall be permitted to file a noticed motion under the 17 current case number of this action seeking enforcement of this Consent Decree, as well as 18 contempt of court. The "prevailing party" in such motion proceedings, whether in full or in 19 part, may be entitled to an award of reasonable attorney fees, litigation expenses and costs for 20 such motion, i.e., the fee recovery shall be pursuant to the normal prevailing party standards 21 that applied under the subject statutes before entry of this decree, under the subject fee shifting 22 statutes named in the complaint and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 23

(1978). Thus, Defendants may be entitled to recovery of attorneys' fees in such proceeding 24 only upon proof that Plaintiff's motion is frivolous or brought in bad faith. 25 26

22. In resolution of Plaintiff's claim for declaratory relief, Defendants hereby

28 stipulate, that by this Consent Decree, the barriers identified herein for correction, at paragraph

20. Time for Compliance. As to all other work, Defendants shall complete all such

21. Enforcement. Should Plaintiff in the future become aware of any facts or


17, supra, constitute past and present violations of each of Plaintiff's rights under the Title III 2 of the Americans with Disabilities Act of 1990, and Civil Code Section 54 and 54.1. 3

Defendants agree that Plaintiff's claim for statutory damages is inextricably intertwined with 4 his claims for injunctive relief. Defendants have agreed to conduct the barrier removals herein 5 as a result of the settlement of this action. 6 7

23. Defendants agree to pay the amount of $20,000 in full satisfaction of Plaintiff's

9 claims for bodily and personal injury and for statutory damages under Title II of the ADA, and 10

THIMESCH, In Trust," and delivered into Plaintiff's counsel's hands within seven days of 12

Defendant's execution of this Full Consent Decree Judgment and Order. If overnight mail is 13 used, Defendants shall supply Plaintiff's counsel with a tracking number. 14

Plaintiff, and understand that no part of it shall be received by Plaintiff's counsel in 16 compensation toward each of Plaintiff's separate claim for reasonable statutory attorneys' fees, 17 litigation expenses, and costs. 18 19

22 claims for interim and final claims for reasonable statutory attorneys' fees, litigation expenses 23 and costs under Section 505 of the ADA [42 USC 12205]; and Civil Code Sections 52 and 24

54.3. A check for this amount shall be made payable to "TIM THIMESCH, IN TRUST," and 25 delivered into Plaintiff counsel's hands within seven days of Defendants' execution of this Full 26

Plaintiff's counsel with a tracking number. 28


Civil Code Sections 52 and 54.3. A check for this amount shall be made payable to "TIM 11

24. The parties stipulate that the foregoing amount is intended to be paid in full to


25. Defendants agree to pay the amount of $45,000 in full satisfaction of Plaintiff's

Consent Decree Judgment and Order. If overnight mail is used, Defendants shall supply 27

26. This Consent Decree constitutes the entire agreement between the parties on the

3 matters of Plaintiff's claims for injunctive relief, statutory and personal injury damages, and 4 reasonable statutory attorney fees, litigation expenses and costs, and no other statement, 5 promise, or agreement, either written or oral, made by any of the parties or agents of any of the 6 parties, that is not contained in this written Full Consent Decree Judgment and Order, shall be 7 enforceable regarding the matters described herein. 8 9


27. The parties agree and represent that they have entered into this Consent Decree

11 voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to 12 all matters related to this Consent Decree, after having received full advice from counsel. 13

28. This Consent Decree shall be binding on Plaintiff and Defendants and any

14 successors in interest. During the period of this Consent Decree, the parties have a duty to so 15 notify all such successors in interest of the existence and terms of this Consent Decree during 16 the period of the Court's jurisdiction of this Consent Decree. 17 18


29. This Consent Decree is deemed jointly prepared by all parties and shall not be

20 strictly construed against any party as its drafter. If any term of this Consent Decree is 21 determined by any court to be unenforceable, the other terms of this Consent Decree shall 22 nonetheless remain in full force and effect. 23 24


30. Signatories on the behalf of the parties represent that they are authorized to bind

26 the parties to this Consent Decree. 27


Dated: Sept.. __, 2011 THIMESCH LAW OFFICES TIMOTHY S. THIMESCH, ESQ. /s/ Authorized Signed Attorneys for Plaintiff CRAIG YATES Dated: Sept.. __, 2011 BARTKO ZANKEL TARRANT MILLER CHUCK MILLER, ESQ. /s/ Authorized Signed Attorneys for Defendants CAFE DIVINO; and MANGIA E. BEVI, INC Dated: Sept.. __, 2011 MICHAEL RAIFSNIDER, ESQ. Attorney at Law /s/ Authorized Signed Attorneys for Defendant FREDERICK J. PERRY III





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