Number range CHAPTER

ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Acting Deputy Chief

MARGARITA M. PRIETO, Attorney

THOMAS M. CONTOIS, Attorney

JEANINE M. WORDEN, Attorney

ROBERTA STINAR KIRKENDALL, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-0196

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, )

> )
>
> Plaintiff, )
>
> )
>
> v\. ) CIV-S-96 260 WBS GGH
>
> )
>
> )

DAYS INNS OF AMERICA, INC., )

HFS, INCORPORATED, DILIP PATEL, )

IYER & ASSOCIATES, and )

R.E. HUFFMAN CORPORATION, )

> )
>
> Defendants. )

)

**UNITED STATES\' MEMORANDUM IN SUPPORT OF ITS**

**MOTION FOR SUMMARY JUDGMENT**

**DATE: October 20, 1997**

**TIME: 1:30 p.m.**

**COURTROOM: 2**

TABLE OF CONTENTS

[Page]{.underline}

I. INTRODUCTION 1

II\. STATEMENT OF THE CASE 2

A. The Willows Days Inn is inaccessible to individuals

with disabilities. 2

B. In addition to the Willows Days Inn, several other

newly constructed Days Inn hotels are inaccessible

to individuals with disabilities. 6

C. DIA and HFS were extensively involved in, and had

extensive control over, the design and construction

of the Willows Days Inn. 8

D. DIA\'s involvement in and control over the design

and construction of the Willows Days Inn is typical

of its involvement in and control over the design

and construction of all new Days Inn hotels. 11

III\. THE ADA\'S REQUIREMENTS FOR NEW CONSTRUCTION 14

IV\. ARGUMENT 16

A. By participating in the design and construction

of hotels that are inaccessible to or unusable by

individuals with disabilities, DIA has violated

section 303 of the ADA. 16

B. The parties responsible for complying with section

303 of the ADA are not limited to the parties

covered by section 302 of the ADA. 20

1\. The scope of section 303 is broader than

the scope of section 302, in that section

303 applies to facilities not covered by

section 302. 21

2\. The use of the term "design" in section 303

makes clear that section 303 is intended to

apply to parties not covered by section 302. 25

3\. Limiting the coverage of section 303 to

the parties identified in section 302 would

result in the design and construction of

numerous inaccessible new facilities,

frustrating Congress\' purpose in adopting

the ADA. 26

4\. Although two other federal district courts

have addressed the scope of section 303's

coverage, they have come to conflicting

conclusions. 31

C. Even if section 303 were limited to parties who

own, operate, or lease the facilities in question,

the United States is still entitled to judgment as

a matter of law, because DIA operates the Willows

Days Inn. 32

1\. The Days Inn "hotel operating system" and the

"System Standards." 33

2\. Enforcement of the System Standards:

the Quality Assurance program 35

3\. Other means by which DIA controls or directs

the functioning of the hotels in its system. 37

a\. Control over renovations or other

physical changes to the hotel. 38

b\. The Days Inn reservation system and

policies. 38

c\. DIA's mandatory marketing programs. 39

d\. DIA's mandatory training programs for

managers and employees of all Days Inn

hotels. 40

e\. The Days Inn Guest Services department. 42

f\. Other controls on the operations of

Days Inn hotels granted to DIA by the

license agreements. 43

D. The Court should assess civil penalties against

DIA and HFS. 44

V. CONCLUSION 48

TABLE OF AUTHORITIES

[Cases]{.underline}: [Page(s)]{.underline}:

[Anderson v. Liberty Lobby]{.underline}, 477 U.S. 242 (1986) 2

[Bagdadi v. Nazar]{.underline}, 84 F.3d 1194 (9th Cir. 1996) 2

[Carparts Distrib. Ctr., Inc. v. Automotive]{.underline} 26

[Wholesaler\'s Ass\'n]{.underline}, 37 F.3d 12 (1st Cir. 1994)

[Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317 (1986) 2

[Covey v. Hollydale Mobile Home Estates]{.underline}, 116 F.3d 2

830 (9th Cir. 1997)

[Crowder v. Kitagawa]{.underline}, 81 F.3d 1480 (9th Cir. 1996) 14

[Federal Election Comm'n v. Furgatch]{.underline}, 869 F.2d 1256 45

(9th Cir. 1989)

[Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994) 26

[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 32

1175 (S.D. Fla. 1997)

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993), 26

*cert. denied sub nom.* [Hoskins v. Kinney]{.underline},

114 S. Ct. 1545 (1994)

[Matsushita Elec. Indus. Co., Ltd. v. Zenith]{.underline} 2

[Radio Corp.]{.underline}, 475 U.S. 574 (1986)

[Moskal v. United States]{.underline}, 498 U.S. 103 (1990) 24

[Paralyzed Veterans of America v. Ellerbe Becket]{.underline} 31, 32

[Architects & Engineers, P.C.]{.underline}, 945 F. Supp. 1

(D.D.C. 1996)

[Peyton v. Rowe]{.underline}, 391 U.S. 54 (1968) 26

[Rettig v. Pension Benefit Guar. Corp.]{.underline}, 744 F.2d 133 26

(D.C. Cir. 1984)

[Tcherepnin v. Knight]{.underline}, 389 U.S. 332 (1967) 26

[Tull v. United States]{.underline}, 481 U.S. 412 (1987) 44

[United States v. Balistrieri]{.underline}, 981 F.2d 916 (7th Cir. 1992)
44

[United States v. Danube Carpet Mills, Inc.]{.underline}, 45

737 F.2d 988 (11th Cir. 1984)

[United States v. ITT Continental Baking Co.]{.underline}, 44

420 U.S. 223 (1975)

[United States v. Menasche]{.underline}, 348 U.S. 528 (1955) 25

[United States v. Reader\'s Digest Ass\'n, Inc.]{.underline}, 44, 45

662 F.2d 955 (3d Cir. 1981)

[Statutes]{.underline}:

42 U.S.C. § 3604(f)(3)(C) 30

42 U.S.C. §§ 12101 *et seq.* 14

42 U.S.C. § 12101(a)(5) 15

42 U.S.C. § 12101(b)(1) 14

42 U.S.C. § 12101(b)(4) 15

42 U.S.C. §§ 12111 through 12117 22

42 U.S.C. §§ 12181 through 12189 1

42 U.S.C. § 12181(2) 21

42 U.S.C. § 12181(7) 21, 22

42 U.S.C. § 12181(9) 15

42 U.S.C. § 12182(a) 20

42 U.S.C. § 12182(b) 15, 20, 21, 28

42 U.S.C. § 12183(a) 1, 15, 16, 17, 21, 24

42 U.S.C. § 12186(b) 16

42 U.S.C. § 12188(b)(2) 44

42 U.S.C. § 12188(b)(5) 45

[Regulations]{.underline}:

28 C.F.R. § 36.401 3

28 C.F.R. Part 36 16

28 C.F.R. Part 36, Appendix A (the Standards 3, 16

for Accessible Design)

28 C.F.R. Part 36, Appendix A, § 7.2(2) 4

28 C.F.R. Part 36, Appendix A, § 9.1.4 4

28 C.F.R. Part 36, Appendix A, § 9.4 5

[Rules]{.underline}:

Fed. R. Civ. P. 56(c) 2

[Legislative history]{.underline}:

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. (1990) 22, 23

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. (1990) 16, 24, 28

[Other]{.underline}:

Robert G. Schwemm, [Housing Discrimination Law and]{.underline} 29

[Litigation]{.underline} § 12.3(1) (1990 and Supp. 1995)

[Webster's II New Riverside University Dictionary]{.underline} (1988) 33

[Black's Law Dictionary]{.underline} (5th ed. 1979) 33

**I. INTRODUCTION**

The United States filed this suit against Days Inns of America, Inc.
("DIA"), and its parent company, HFS Incorporated ("HFS"), and the
owner, architect, and general contractor of and for a newly constructed
Days Inn hotel in Willows, California, alleging that those entities
violated title III of the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12181 through 12189 ("ADA" or the "Act"). The United States
alleged that those parties violated title III of the ADA by designing
and constructing the Willows Days Inn to be inaccessible to individuals
with disabilities, in violation of section 303(a) of the ADA, 42 U.S.C.
§ 12183(a).[^1] The United States further alleges that the actions or
omissions of DIA and HFS with respect to the Willows Days Inn are
typical of its standard practices or procedures, that numerous other new
Days Inn hotels are inaccessible to individuals with disabilities, and
that DIA and HFS have engaged in a pattern or practice of illegal
conduct in violation of title III of the ADA.

DIA and HFS do not deny that the Willows Days Inn is inaccessible to
individuals with disabilities. DIA and HFS do not deny that at least 13
other new Days Inn hotels, in ten other states, have also been designed
and constructed to be inaccessible to individuals with disabilities.
Further, there is no dispute over what actions DIA or HFS did or did not
take with respect to the design and construction of the Willows Days Inn
or other new Days Inn hotels. Thus, the only questions that remain in
dispute are questions of law: whether, given the undisputed facts, DIA
and HFS are liable under title III of the ADA for the design and
construction of the Willows Days Inn and other inaccessible Days Inn
hotels. Accordingly, the United States moves for summary judgment
pursuant to Federal Rule of Civil Procedure 56,[^2] seeking both
injunctive relief and the award of civil penalties against both DIA and
HFS.

**II. STATEMENT OF THE CASE**

As set forth more fully in the United States' Statement of Undisputed
Facts, the following facts are not disputed.

**A. The Willows Days Inn is inaccessible to individuals with
disabilities**.

As detailed in the report of the United States' expert, Mr. William
Hecker, the Willows Days Inn is not readily accessible to or usable by
individuals with disabilities. *See* U.S. Facts ¶

85.[^3] The hotel was designed and constructed[^4] with numerous
violations of the ADA's Standards for Accessible Design, 28 C.F.R. Part
36, Appendix A ("the Standards"), occurring in every area of the
facility, from the parking lot, walkways, and entrances, to the lobby
and other public and employee areas, to the guest rooms and guest
bathrooms. [Id]{.underline}. In general, the violations fall into three
categories: (1) conditions that result in unequal treatment for
individuals with disabilities; (2) conditions that make it difficult or
impossible for individuals with disabilities to gain access to or use
some area or feature of the hotel; and (3) conditions that present
potential safety hazards for individuals with disabilities.

Perhaps the best example of a condition that results in unequal
treatment for individuals with disabilities is the failure to provide
accessible features in the hotel's various types of guest rooms.[^5] As
designed and constructed, the Willows hotel has two rooms designated for
use by individuals with disabilities, each of which has only one bed.
U.S. Facts ¶ 85.u. The hotel has several rooms with two beds, and at
least one room designated as a suite that is larger than the others, and
has additional amenities. None of those rooms, however, have any
accessibility features, and are not available to individuals with
disabilities who need an accessible room. [Id]{.underline}.[^6]

There are a multitude of conditions falling into the second category of
violations at the Willows Days Inn, conditions which make it difficult
or impossible to gain access to or make use of some area or feature of
the hotel. These include a failure to provide an adequate number of
accessible parking spaces, U.S. Facts ¶ 85.a., and a failure to provide
an accessible route to the hotel's swimming pool. U.S. Facts ¶ 85.e. In
addition, the hotel's registration desk is too high to be used by
someone who uses a wheelchair. U.S. Facts ¶ 85.h.[^7] In the hotel's
guest rooms, the security latches on the doors, and the controls for the
heating and air conditioning units are either too high to be reached by
someone using a wheelchair, or require a degree of

manual dexterity that many individuals with disabilities do not have.
U.S. Facts ¶¶ 85.p, q. As a result, many individuals with disabilities
at the Willows Days Inn will be unable to lock the security locks on
their doors, or turn on or off, or adjust, the heat or air conditioning.
Further, in the hotel's guest rooms that are not the guest rooms
specifically designed for individuals with disabilities, the doors to
the bathrooms are too narrow to allow the passage of an individual using
a wheelchair. U.S. Facts ¶ 85.n. Wheelchair users will thus not be able
to gain access to the bathrooms in those rooms, which they might need to
do if the accessible rooms are not available, or if they are visiting
someone who is staying in one of the hotel's non-accessible rooms.[^8]

Finally, there are many conditions at the Willows hotel which present
safety hazards for individuals with disabilities. These include a
failure to provide any barrier or warning to individuals who are blind
or have low vision, to prevent them from walking into the underside of
the hotel's exterior stairways. U.S. Facts ¶ 85.g. The hotel is
surrounded by a raised concrete walkway, and there is only one curb
ramp, near the hotel's front entrance, providing access from the parking
lot to that walkway. As a result, in the event of an emergency,

there is only one egress route for individuals who use wheelchairs, and
if a fire occurs in or near the front lobby, that route may be closed
off. U.S. Facts ¶ 85.c. While the hotel has both fire alarms and smoke
detectors serving the lobby and guest rooms, those alarms have only
audible warnings; they will not alert a person who is deaf to an
emergency, and if that person is by himself or herself (for instance,
alone in a guest room, or in the lobby restroom), that person will
probably not be alerted by hotel staff or other guests. U.S. Facts ¶¶
85.f, j, o. Finally, the hot water and drain pipes under the lavatories
in the lobby restrooms are not insulated, or otherwise configured to
prevent contact with the legs of wheelchair user. U.S. Facts ¶ 85.l.
Given that many wheelchair users have no feeling in their legs, they
would not know that they were being burned or scalded by those pipes.

**B. In addition to the Willows Days Inn, several other newly
constructed Days Inn hotels are inaccessible to individuals with
disabilities**.

In addition to the Willows Days Inn, several other newly constructed
Days Inn hotels have been designed and constructed to be inaccessible to
or unusable by individuals with disabilities. The United States' expert,
Mr. Hecker, has surveyed 13 other new Days Inns, and has found numerous
violations of the Standards at each. U.S. Facts ¶¶ 86-90. As with the
Willows Days Inn, the violations occur in all parts of the facility, and
can be grouped into the same three categories. For instance, new Days
Inn hotels in Wall, South Dakota (the "Wall Days Inn" or the "Wall
hotel"), Hazard, Kentucky (the "Hazard Days Inn" or the "Hazard hotel"),
and Champaign, Illinois (the "Champaign Days Inn" or the "Champaign
hotel") all have rooms with two beds, or larger rooms with additional
amenities, but at each of these hotels, the guest rooms designated for
use by individuals with disabilities have only bed and none of the other
amenities. U.S. Facts ¶¶ 87.i, 88.m, 89.m.

Similarly, each of the Wall, Hazard, and Champaign Days Inns has too few
accessible parking spaces, or parking spaces designated for use by
individuals that do not comply with the requirements of the Standards.
U.S. Facts ¶¶ 87.a, 88.a, 89.a. While none of these three hotels has a
swimming pool, the Wall hotel has a spa and sauna, but they are located
in the facility's basement, with no means of access other than a flight
of stairs. U.S. Facts ¶ 87.h. Each of the three hotels has a
registration counter that is too high. U.S. Facts ¶¶ 87.f, 88.f, 89.e.
Each has controls for the heating and air conditioning units in their
guest rooms, and the Hazard and Champaign Days Inns have lamps or light
switches, that require a high level of manual dexterity. U.S. Facts ¶¶
87.k, 88.l, 89.h. Finally, the bathroom doors to the non-accessible
guest rooms at all three hotels fail to provide adequate clear width.
U.S. Facts ¶¶ 87.j, 88.j, 89.l.

With respect to safety hazards, the Hazard hotel, like the Willows
hotel, has stairs with unprotected undersides, U.S. Facts ¶ 88.b, and
the Wall hotel has no accessible means of emergency egress for
wheelchair users. U.S. Facts ¶¶ 87.b, e. All three hotels have emergency
alarm systems that fail to provide visual alarms in the hotel lobbies,
lobby restrooms, or guestrooms. U.S. Facts ¶¶ 87.d, 88.g, 89.f, k. And
all three hotels have lavatories with hot water and drain pipes that are
not insulated or otherwise configured to protect against contact. U.S.
Facts ¶¶ 87.g, 88.i, 89.g.

Further evidence of the typicality of the ADA violations at the Willows
Days Inn comes from the United States' inspections of ten other newly
constructed Days Inn hotels. At each of those hotels, the United States'
expert found violations of the Standards throughout the facility, of the
same types as the violations found at the Willows, Wall, Hazard, and
Champaign hotels. U.S. Facts ¶ 90. The findings of the United States'
expert are undisputed. *See* Kiewel Dep., Exh. 21, at 9-11, 61.

**C. DIA and HFS were extensively involved in, and had extensive control
over, the design and construction of the Willows Days Inn**.

As the undisputed facts show, DIA and HFS had both a high degree of
control or authority over the design and construction of the Willows
Days Inn, and extensive involvement in the project itself.[^9] The
license agreement covering the Willows Days Inn contains several terms
governing the design and construction of the Willows Days Inn, and
reserves to DIA considerable control over the project. For instance, the
license agreement sets several design features of the hotel, including
the number of rooms and parking spaces the hotel would have. U.S. Facts
¶ 65. The license agreement sets dates by which construction must begin
and be completed, and requires the Patels to secure DIA's approval of
any delay in the construction schedule. U.S. Facts ¶¶ 63.a, b, g.

The agreement further requires the Patels to prepare architectural plans
for the hotel that conform to the Days Inn Design Standards, and
requires the Patels to submit their plans to DIA for DIA's review and
approval before beginning construction. U.S. Facts ¶¶ 63.c, d. The
agreement requires the Patels to construct the hotel in accord with the
plans approved by DIA, and to secure DIA's written approval of any
changes to those plans. U.S. Facts ¶¶ 63.e. Once construction has begun,
the agreement requires the Patels to give DIA notice in writing that
construction has begun, and to provide photographic or documentary
evidence showing that it has begun. U.S. Facts ¶ 63.f. The agreement
further provides that, upon DIA's request, the Patels must provide
copies of their building permits to DIA and reports on the progress of
construction, and that DIA has the right to inspect the construction
during the course of the project. U.S. Facts ¶ 63.h. Once construction
is completed, the agreement forbids the Patels to open and operate the
hotel until after DIA certifies in writing that the hotel is acceptable
to DIA. U.S. Facts ¶ 63.j.

In addition to the control over the project that DIA reserved to itself
in the Willows license agreement, the undisputed facts show that DIA
involved itself in the project in a variety of other ways as well.
Initially, a DIA sales representative visited the proposed site for the
hotel, and advised the owners that it was an acceptable location. U.S.
Facts ¶ 66. DIA maintained contact with Iyer & Associates, the Patels'
architect (and had done so prior to the time the Patels hired Iyer).
U.S. Facts ¶¶ 55, 68. Iyer had designed other Days Inn hotels
previously, and was generally familiar with the Days Inn design
requirements. U.S. Facts ¶¶ 56, 57. Iyer also had a copy of the Days Inn
PDSM in his office, which he used as a reference (though it was not used
extensively for the Willows project). U.S. Facts ¶¶ 69, 70. Iyer
forwarded the plans for the Willows Days Inn to William Kraft, an
architect in the DIA Design and Construction Department, for DIA's
review and approval. U.S. Facts ¶¶ 71, 72. Kraft reviewed and commented
upon the plans, and the Patels directed Iyer to incorporate Kraft's
comments into the plans. U.S. Facts ¶¶ 73-75. Later, when the Patels
wanted to reduce the size of the swimming pool they had planned to
build, they sought a waiver from Kraft of Days Inn's requirements for
the size of swimming pools. U.S. Facts ¶¶ 76, 77. Kraft approved the
smaller pool, but conditioned the approval on a further review of the
revised plans showing the new pool. U.S. Facts ¶ 77. Due to heavy
rainfall in the spring of 1993, the Patels were unable to begin
construction of the project by the date set out in the agreement, and
were required to obtain DIA's consent to a later construction start
date. U.S. Facts ¶ 78.

In addition to its involvement during the design phase, DIA was also
involved during the construction phase of the Willows Days Inn project.
Once construction began, DIA requested that the Patels provide
photographs of the construction site showing that construction had
begun, and sent the Patels a camera for the purpose of taking the
pictures. U.S. Facts ¶¶ 80-82. As the project continued, DIA monitored
its progress, making multiple phone calls to the Patels. U.S. Facts ¶
83. As the hotel neared completion, DIA's contact became more frequent.
U.S. Facts ¶ 84. Since the completion of the hotel, DIA has inspected
the facility several times. The first visit was made by the DIA
representa-tive who came to the property to install the hotel's computer
reservations terminal, and provide training to the hotel's management
and staff. That visit occurred in late September 1993, and included a
tour of the property. U.S. Facts ¶¶ 136.a, 159.[^10] Since that time,
DIA has inspected the property at least three times a year as part of
its Quality Assurance program. U.S. Facts ¶¶ 101, 151. Among other
things, the Quality Assurance (QA) inspections check for compliance with
the Days Inn design standards. U.S. Facts ¶¶ 103, 104.

**D. DIA\'s involvement in and control over the design and construction
of the Willows Days Inn is typical of its involvement in and control
over the design and construction of all new Days Inn hotels**.

DIA's involvement in, and control over, the design and construction of
the Willows Days Inn are by no means unique to the Willows hotel. To the
contrary, the undisputed facts show that DIA has the same level of
control over the design and construction of all new Days Inn hotels, and
the same kind of involvement in (and in some cases, greater involvement
in) the design and construction of other hotels.

Initially, the Willows license agreement is typical of all license
agreements. U.S. Facts ¶ 62. Indeed, DIA uses a standard form of
agreement for all of its licensees. U.S. Facts ¶¶ 21, 22. And while DIA
will alter some specific provisions of the standard agreement in some
cases, many are not negotiable. U.S. Facts ¶¶ 23, 24. These include the
provisions that require the licensee to prepare plans and specifications
for the hotel that comply with DIA's design standards. [Id]{.underline}.
In addition, in order to protect its own interests, DIA includes in all
of its agreements the provisions which fix the number of guest rooms for
the hotel, and which set dates by which the construction of the unit
must begin and be completed. U.S. Facts ¶ 29.e, f, g.

The Days Inn Planning and Design Standards Manual is one of Days Inn's
System Standards manuals, which licensees are required to comply with
both when preparing the plans for their hotels, and continuously
thereafter. U.S. Facts ¶¶ 19, 26, 29.a, 30. The PDSM was originally
developed by DIA's predecessor in inter-est, Days Inns of America
Franchising, Inc. (DIAF), as part of DIAF's own construction projects,
and then passed on to DIAF's franchisees. U.S. Facts ¶ 32. When HFS
acquired the Days Inn chain from DIAF, and created its wholly-owned
subsidiary DIA, the DIAF PDSM was re-issued with DIA's name and address.
U.S. Facts ¶ 32.a.

The PDSM sets detailed requirements for new hotels: it is
"comprehensive," imposing hundreds of requirements covering all aspects
of the hotel's design and construction. U.S. Facts ¶¶ 33-35. In
addition, it includes dozens of drawings and sketches, showing guest
room and guest room bathroom layouts, and drawings of previously
constructed Days Inn hotels. U.S. Facts ¶ 36. While licensees are not
required to use the drawings of prior Days Inn hotels, the PDSM
"encourages" licensees to use these "examples of recent Licensee and DIA
designed and built models." U.S. Facts ¶ 36.b.

In addition to the control over the design and construction of new Days
Inn hotels evidenced by the license agreement and PDSM, DIA is involved
in the design and construction of those hotels in a variety of other
ways, as it was in Willows. For instance, DIA visits the sites of
proposed new hotels, and evaluates those sites according to several
factors. U.S. Facts ¶ 49.a. DIA frequently assists licensees in the
early stages of design by providing conceptual site plans or
architectural renderings, drawings which can be used for a variety of
purposes, such as determining the feasibility of a particular project on
a particular site, or obtaining zoning permits or waivers from local
building officials. U.S. Facts ¶¶ 49.b, d. Those drawings can also be
used to show to a prospective lender, in support of an application for
construction financing. U.S. Facts ¶¶ 49.b.i, e. In some cases DIA will
refer licensees to lenders, architects, or contractors who have
expressed to DIA an interest in participating in new Days Inn hotel
projects, or talk to local building officials about a particular Days
Inn project. U.S. Facts ¶¶ 49.g, h, i.

As it did for the Willows Days Inn, the DIA Design and Construction
Department reviews plans for new Days Inn hotels. While these reviews
are intended primarily to check for compliance with Days Inn system
standards, they frequently include issues of building code compliance,
recent trends in the industry, and compliance with the ADA's
accessibility requirements. U.S. Facts ¶ 48. DIA also monitors the
progress of construction for other new Days Inn hotels the way it did in
Willows; in lieu of sending inspectors to construction sites, DIA would
send cameras to licensees, for them to take pictures of their projects
to send to DIA. U.S. Facts ¶¶ 50, 51. Finally, just as it did in
Willows, a DIA representative visits every new hotel at or near the
completion of construction, to install reservations equipment, train
hotel staff, and tour or inspect the property. U.S. Facts ¶¶ 135, 136.
In addition to this initial visit, the DIA Quality Assurance department
inspects every Days Inn property at least three times per year,
inspections that include compliance with Days Inn's design standards.
U.S. Facts ¶¶ 101, 103.

**III. THE ADA\'S REQUIREMENTS FOR NEW CONSTRUCTION**

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 *et seq.*, is
Congress\' most comprehensive civil rights legislation since the Civil
Rights Act of 1964. Its chief purpose is to provide \"a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\" 42 U.S.C. § 12101(b)(1). *See
also* [Crowder v. Kitagawa]{.underline}, 81 F.3d 1480, 1483 (9th Cir.
1996) (same). To that end, the Congress acted to "invoke the sweep of
congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce, in order to address the major areas
of discrimination faced day-to-day by people with disabilities." 42
U.S.C. § 12101(b)(4). The ADA\'s coverage is accordingly broad: it
prohibits discrimination on the basis of disability in employment, State
and local government programs and services, transportation systems,
telecommunications, commercial facilities, and the provision of goods
and services offered to the public by private businesses.

Nowhere is the breadth of the ADA more evident than in section 303 of
the statute. Congress specifically found that architectural barriers
constituted one of the types of discrimination \"continually
encounter\[ed\]\" by individuals with disabilities. 42 U.S.C. §
12101(a)(5). To redress this form of discrimination, Congress mandated
that all commercial facilities and public accommodations completed after
January 26, 1993, be \"readily accessible to and usable by\" individuals
with disabilities. 42 U.S.C. § 12183(a). Congress intended strict
adherence to the new construction requirements. As the legislative
history makes clear,

> \[t\]he ADA is geared to the future --- the goal being that, over
> time, access will be the rule rather than the exception. Thus, the
> bill only requires modest expenditures to provide access in existing
> facilities,[^11] [while requiring all new construction to be
> accessible]{.underline}.

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63 (1990) (emphasis added).

To realize its goal of a fully accessible future, Congress required that
all newly constructed facilities be designed and constructed according
to architectural standards to be set by the Attorney General. 42 U.S.C.
§§ 12183(a), 12186(b). Those standards are incorporated into the
Department of Justice\'s regulation implementing title III of the ADA,
28 C.F.R. Part 36, and are known as the Standards for Accessible Design,
28 C.F.R. Part 36, Appendix A (\"the Standards\"). The Standards set a
variety of requirements for newly constructed hotels, require-ments
which apply to all areas of the facility, from parking and exterior
walkways to entrances to lobbies to interior stairs and corridors, and
all guest rooms.

**IV. ARGUMENT**

**A. By participating in the design and construction of hotels that are
inaccessible to or unusable by individuals with disabilities, DIA has
violated section 303 of the ADA.**

As detailed above, DIA does not dispute that the Willows Days Inn and
numerous other new Days Inn hotels are not readily accessible to and
usable by individuals with disabilities. The undisputed facts further
show that DIA was extensively involved in the design and construction of
those hotels. Accordingly, DIA is liable under section 303 of the ADA.

Section 303 provides that

> as applied to public accommodations and commercial facilities,
> discrimination for purposes of section 302(a) of this title includes
>
> \(1\) a failure to design and construct facilities for first occupancy
> later than \[January 26, 1993\], that are readily accessible to and
> usable by individuals with disabilities . . . .

42 U.S.C. § 12183(a)(1). Section 303 defines a discriminatory activity
--- the design and construction of inaccessible\
facilities --- and makes it illegal to engage in that activity. It is
thus one part of Congress' "clear and comprehensive national mandate"
for the elimination of discrimination against individuals with
disabilities: any party who engages in, or is involved in, the design
and construction of an inaccessible facility engages in or is involved
in an illegal activity, and violates section 303 of the ADA.

Liability under section 303 depends on the facts of each case. In
particular, liability under section 303 depends upon three factual
inquiries: 1) whether the party in question participated in the design
and construction of the facility in question; 2) whether the facility is
readily accessible to and usable by individuals with disabilities; and
3) whether the party's participation in the design and construction of
the facility included participation in the design and construction of
some portion of the facility that fails to comply with the ADA's
Standards for Accessible Design. Put differently, the scope of a party's
responsibility under section 303 is commensurate with the scope of that
party's involvement in the design and construction of the facility.[^12]
Thus, the architect for a facility would be responsible for any
violations of the Standards occurring within the scope of his or her
work, while a plumbing subcontractor would be responsible for violations
occurring within the scope of its involvement in the project (for
instance, violations in the facility's toilet rooms). By the same token,
however, the plumbing subcontractor would not be responsible for
violations of the Standards occurring in the facility's parking lot (but
the paving subcontractor might be), and a roofing subcontractor would
rarely if ever have any ADA liability, because the Standards impose no
accessibility requirements for a facility's roof.

As outlined above, the undisputed facts of this case show that there are
numerous violations of the Standards both at the Willows Days Inn and
several other new Days Inns, and that DIA has participated extensively
in the design and construction of those hotels. As it does with other
hotels in its chain, DIA's involvement with the design and construction
of the Willows Days Inn began early --- a representative of DIA visited
the proposed site for the Willows hotel --- and continued throughout the
project. In addition, DIA's involvement extended to every aspect of the
facility itself. Among other things, DIA determined, through the license
agreement with the Patels, the number of rooms and parking spaces the
hotel would have, set dates for the beginning and completion of
construction, required the Patels to prepare plans for the hotel that
conformed to the Days Inn

Planning and Design Standards Manual, required the Patels to obtain
DIA's approval of their plans for the hotel, reviewed and approved those
plans, required the Patels to submit proof that construction had begun
when required, monitored the progress of the construction (especially as
it neared completion), and inspected the hotel upon its completion.[^13]

The PDSM itself represents significant involvement by DIA in the design
of the Willows and other new Days Inn hotels: as DIA's expert architect
put it, the PDSM is "comprehensive." U.S. Facts ¶ 33. It sets forth
hundreds of design requirements for all areas of new Days Inn hotels,
and includes sketches showing the design or layout of guest rooms and
guest bathrooms. U.S. Facts ¶¶ 34-36. The PDSM addresses or sets
requirements for all of the areas of the Willows Days Inn in which
violations of the Standards occurred. Similarly, the license agreement
with the Patels (which is typical of agreements with other Days Inn
licensees) requires them to submit complete architectural drawings and
specifications for the hotel, which drawings and specifications would
also address all areas of the hotel covered by the Standards. Because
the scope of DIA's involvement in the design and construction of the
Willows Days Inn extended to every aspect of the hotel, the scope of its
liability for ADA violations at the Willows Days Inn is quite broad:
along with the owner, architect, and general contractor (each of whom
were also involved in the design and construction of all aspects of the
facility), DIA is responsible for all of the violations of the Standards
at the Willows Days Inn.

**B. The parties responsible for complying with section 303 of the ADA
are not limited to the parties covered by section 302 of the ADA.**

Title III of the ADA does not only set architectural requirements for
the design and construction of new facilities. It also prohibits a
variety of forms of discrimination in the day-to-day operation of
certain businesses. That is, in addition to the requirements for new
construction set out in section 303, section 302 of the Act includes a
general prohibition of discrimination against individuals with
disabilities, and imposes on public accommodations, but
[not]{.underline} on commercial facilities, various other
non-discrimination obligations with respect to their day-to-day
operations. *See* 42 U.S.C. § 12182(a) and (b).[^14]

*1. The scope of section 303 is broader than the scope of section 302,
in that section 303 applies to facilities not covered by section 302.*

Unlike section 302, which applies only to public accommoda-tions,
section 303 applies to two categories of facilities: \"public
accommodations\" and \"commercial facilities.\" 42 U.S.C. § 12183(a).
The statute defines \"public accommodations\" as entities (1) whose
operations affect commerce, and (2) that fall into one or more of twelve
categories of public accommodations set out in the Act. *See* 42 U.S.C.
§ 12181(7). This is a broad definition that includes, for example,
hotels, bars, restaurants, stadiums, theaters, shopping malls, doctors'
and lawyers' offices, museums, zoos, and many other facilities that
provide goods or services.

As broadly defined as it is, the category of "public accommodations" is
not as broad as the category of "commercial facilities." That term is
defined as all facilities intended for non-residential use whose
operations affect commerce. *See* 42 U.S.C. § 12181(2).[^15] While this
definition includes many facili-ties that are also public
accommodations,[^16] it includes a broad range of facilities that are
not public accommodations, such as factories, warehouses, many office
buildings, and other buildings in which employment may occur. Congress
chose this expansive coverage of commercial facilities deliberately. The
lawmakers recognized that while employees at commercial facilities would
have the protections of the provisions of title I of the ADA, 42 U.S.C.
§§ 12111 through 12117 (governing private employers, and requiring them
to make reasonable accommodations for employees with disabilities), it
nonetheless made sense to impose a blanket requirement for architectural
accessibility on facilities that were potential places of employment,
but were not places of public accommodation. As the House Committee on
Education and Labor pointed out,

> \[t\]o the extent that new facilities are built in a manner that
> make(s)them accessible to all individuals, including potential
> employees, there will be less of a need for individual employers to
> engage in reasonable accommodation to particular employees.

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. 117 (1990).

Because the scope of section 303's coverage is broader than the scope of
coverage of section 302, it would do violence to the statutory scheme to
read the reference to section 302(a) in section 303 to mean that only
those who have obligations under 302 --- the owners, lessors, lessees
and operators of public accommodations --- can be held liable for new
construction violations under section 303. Under such a reading, the
[only]{.underline} people who could be held liable for design and
construction vio-lations of [commercial facilities]{.underline} would be
those who own, lease, or operate [public accommodations]{.underline}.
For strictly commercial facil-ities --- many office buildings, for
instance, do not contain places of public accommodation --- there is no
party who would meet this definition and, therefore, no party to be held
accountable for ADA violations. Such a result cannot be harmonized with
the language in section 303 that explicitly includes \"commercial
facilities\" within the scope of the new construction requirements, or
with Congress' desire to insure that [all]{.underline} new commercial
facilities would be covered. As the report of the House Committee on
Education and Labor explains:

> In many situations, the new construction will be covered as a \"public
> accommodation,\" because in many situations it will already be known
> for what business the facility will be used. The Act also includes,
> however, the phrase \"commer-cial facilities,\" to ensure that
> [all]{.underline} newly constructed commercial facilities will be
> constructed in an accessible manner. That is, the use of the term
> \"commercial facili-ties\" is designed to cover those structures that
> are not included within the specific definition of \"public
> accommodation.\"

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. 116 (1990) (emphasis in
original).

A House Judiciary Committee amendment moving the requirement for
accessible alterations from section 302 to section 303 provides further
evidence that Congress intended section 303 to have a scope of coverage
beyond that of section 302. As the Committee Report explains:

> \[t\]he Committee adopted an amendment to move the section governing
> alterations for existing facilities from Section 302(b)(2)(vi), which
> only covered public accommodations, to Section 303 which covers both
> public accommodations and commercial facilities.

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63.[^17] The Committee
clearly understood that section 303 covered a wider universe than
section 302 and wanted to ensure that the requirements for alterations,
like those for new construction, applied to the many office buildings,
factories, warehouses, and other potential places of employment that are
not public accommodations. As the Committee noted,

> if alterations were not included in Section 303, governing commercial
> facilities, the anomalous situation could arise of a new accessible
> building being renovated to include barriers to access.

[Id]{.underline}.

In sum, there can be little question that Congress deliberately chose to
draft sections 302 and 303 differently, and intended them to apply to
different kinds of activities, different categories of facilities, and
different parties. Thus, the most sensible reading of section 303\'s
reference to section 302(a) is that section 303 refers to section 302(a)
only to indicate that the failure to design and construct accessible
facilities constitutes another type of \"discrimination on the basis of
disability,\" and [not]{.underline} to identify the parties that may be
held liable under section 303. This interpretation gives full effect to
all of the terms of the provision. *See* [Moskal v. United
States]{.underline}, 498 U.S. 103, 109-10 (1990) (courts should
interpret statutes in a manner that gives effect to every clause and
word of the statute) (quoting [United States v. Menasche]{.underline},
348 U.S. 528, 538-39 (1955) (same)).[^18]

*2. The use of the term "design" in section 303 makes clear that section
303 is intended to apply to parties not covered by section 302.*

By including the term "design" in section 303, Congress made clear that
section 303 is not to be limited only to parties who own, operate, or
lease the facility in question. If only those parties were to be
covered, then entities that design new facilities, but typically do not
own, operate, or lease them --- including architects, engineers, and
other design professionals --- would be excluded from the scope of
section 303's coverage. A general exclusion of design professionals,
however, cannot be squared with the inclusion of the term \"design\" in
the text of the statute. Congress could have written this paragraph
without using the word \"design,\" addressing itself only to the end
result by making it illegal only to \"construct\" inaccessible
facilities. By including the design function in the description of the
prohibited conduct, however, Congress deliberately brought within the
Act\'s coverage not just those parties who are ultimately responsible
for the construction of a new facility, but also those entities who
design new facilities --- architects, engineers, interior designers, and
all other parties who design facilities. Limiting section 303 to those
parties covered by section 302 would thus nullify a large portion of the
coverage marked out by Congress. As we argue in the next section, so
circumscribing the coverage of section 303 would significantly limit the
ability of section 303 to achieve its purpose.

*3. Limiting the coverage of section 303 to the parties identified in
section 302 would result in the design and construction of numerous
inaccessible new facilities, frustrating Congress\' purpose in adopting
the ADA.*

Under well-established canons of statutory construction, in addition to
examining the text of the statute the Court must also look to its
remedial purposes, and construe the statute in a way that will allow it
to achieve those purposes.[^19] Limiting the coverage of section 303 to
the parties identified in section 302 would greatly limit the ability of
section 303 to achieve Congress\' stated purpose of ensuring that
[all]{.underline} new facilities are designed and constructed to be
accessible, and result instead in a great many more inaccessible
buildings.

To be fully effective, the ADA\'s new construction obligation must apply
not only to the parties who own, operate, or lease the facility in
question, but to all of the parties involved in the design and
construction of the facility. If all parties who engage in the illegal
activity --- the design and construction of inaccessible buildings ---
are held liable for doing so, the level of compliance with the statute
will be considerably higher than it would be if only some of those
parties are responsible. For instance, if only those who own, operate,
or lease facilities have any responsibility under section 303, an owner
who decides to erect a building that is not accessible to individuals
with disabilities, and asks an architect to design it without regard to
the ADA\'s architectural requirements, and a contractor to build it that
way, is quite likely to find an architect and contractor who will do as
he asks. Neither the architect nor the contractor would have any reason
to refuse: they would have no liability under the ADA to any person with
a disability, and no liability to the owner, because they were following
the owner\'s express instructions. As a result, it is much more likely
that the facility will be designed and built inaccessibly --- and will
only be made accessible if a lawsuit is filed to compel compliance. Such
a result is clearly not what Congress intended: the legislative history
makes clear that Congress recognized that it is far easier and less
expensive to incorporate accessible features into a building from the
beginning than to go back later and retrofit the facility after
construction is complete.[^20] And Congress certainly did not wish to
create a scheme under which compliance will be achieved only as a result
of costly litigation. Such a scheme would burden not just individuals
with disabilities and the courts, but the rest of our society as well,
when construction of a facility is halted, or a completed facility is
shut down, for the purpose of undertaking remedial work to bring it up
to ADA standards.

The intent of the statute cannot be fully realized unless it is read the
way Congress drafted it: section 303 simply identifies a prohibited
activity, and does not specify, either to include or exclude, what
parties may be liable for engaging in that activity. Thus, if an owner
wishes to build a facility that is inaccessible, any architect will (or
should) refuse, because that architect can be held liable for violating
section 303. And even if the owner can find an architect who will design
it, any contractor will (or should) refuse to build it, because the
contractor can be held liable under section 303. It thus becomes

significantly more difficult to have a building designed and constructed
to be inaccessible to individuals with disabilities, and the statute is
far more likely to achieve the goals set by Congress.

Indeed, this is precisely the way Congress has approached other problems
of discrimination in other civil rights statutes. While the language
varies from statute to statute, the basic approach has been the same.
Congress has not placed responsibil-ity only on some of the parties
engaged in the activity in question; rather, Congress has consistently
cast the net more broadly, to prohibit discriminatory conduct by all
parties involved. Put differently, it is axiomatic in our civil rights
law that it is not permissible for one party to act in a discriminatory
fashion because another party somewhere down the line may be held liable
for that discrimination. The most analogous example of this approach is
that set forth in the Fair Housing Act, which simply makes illegal
various discriminatory activities, without limiting the parties who may
be held responsible for engaging in that activity. *See* Robert G.
Schwemm, [Housing Discrimination Law and Litigation]{.underline} §
12.3(1) at 12-22 (1990 and Supp. 1995) (Fair Housing Act provisions
"simply declare certain housing practices to be unlawful without
specifying who may be held responsible for these practices. Thus, anyone
who commits one of the acts proscribed by the statute's substantive
provisions is liable to suit," unless specifically exempted).

Significantly, section 303 of the ADA mirrors a provision contained in
section 804 of the Fair Housing Act, a provision which also simply
identifies an illegal activity --- the design and construction of
inaccessible housing facilities --- and does not specify or limit the
parties that may be held liable under that section.[^21] In modeling
section 303 of the ADA on section 804(f)(3)(C) of the Fair Housing Act,
Congress clearly chose to approach the design and construction of
inaccessible public accommodations and commercial facilities in the same
way that it had approached the design and construction of inaccessible
housing facilities: it has simply specified an illegal activity --- the
design and construction of inaccessible facilities --- and has not
qualified that prohibition to allow some parties, but not others, to
engage in that activity. Indeed, given that Congress specifically
"invoked the sweep of its authority" when it enacted the ADA, to
establish a "clear and comprehensive national mandate" for the
elimination of discrimination against individuals with disabilities, it
would only be surprising if Congress had chosen [not]{.underline} to
draft section 303 so broadly, but only to require some limited class of
parties to fulfill its goal of a fully accessible future.

*4. Although two other federal district courts have addressed the scope
of section 303's coverage, they have come to conflicting conclusions.*

Two federal district courts have considered the question of the scope of
section 303's coverage, and have come to conflicting conclusions. The
first case to address this issue was [Paralyzed Veterans of America v.
Ellerbe Becket Architects & Engineers, P.C.]{.underline}, 945 F. Supp. 1
(D.D.C. 1996), in which the Court dismissed claims against the
architectural firm that designed an arena alleged to be inaccessible, on
the grounds that section 303\'s reference to section 302 limits the
parties responsible for complying with section 303 to those who own,
lease, or operate the facility. The [PVA]{.underline} opinion, however,
is not persuasive. Its central flaw is that it does not explain why
section 303, which plainly applies to public accommodations
[and]{.underline} commercial facilities, should be limited to parties
who own, lease, or operate public accommodations. The opinion does not
even acknowledge this discrepancy, much less try to account for it.
Rather, the court states only that \"the limitation in § 302 to owners,
operators, and lessors also applies to § 303 and thereby excludes
architects . . . .\" [Id]{.underline}. at 2. But because section 302
applies only to owners, operators, and lessors of [public
accommodations]{.underline} and not to commercial facilities at all,
this analysis, as discussed above, leads to the patently incorrect
result of eliminating from section 303 any meaningful coverage of
commercial facilities.

In addition, the [PVA]{.underline} court erred when it assumed, without
explanation, that the aims of the statute could effectively be

achieved even if only the owners of new facilities were responsible for
ADA compliance. [Id]{.underline}. As discussed above, however, limiting
the scope of section 303 to owner, operators, lessors and lessees would
mean that the aims of section 303 would only be achieved as a result of
a multitude of legal actions to compel retrofitting of facilities
designed and constructed to be accessible, a prospect Congress
specifically wished to avoid.

Much more persuasive is the ruling of the court in [Johanson v. Huizenga
Holdings, Inc.]{.underline}, 963 F. Supp. 1175 (S.D. Fla. 1997), another
title III action alleging that a new arena was being designed to be
inaccessible to individuals with disabilities. Again, the architects
were named as defendants, and moved to dismiss the claims against them
on grounds that they did not own, operate, or lease the facility. The
[Johanson]{.underline} court recognized that if the reading advanced by
the architects in that case were correct, coverage of commercial
facilities would effectively be eliminated from section 303. Under such
a reading, the court noted, "it is conceivable that no entity would be
liable for construction of a new commercial facility which violates the
ADA.\" [Id]{.underline}. at 1178. Accordingly, the
[Johanson]{.underline} court denied the architects' motion to
dismiss.[^22]

**C. Even if section 303 were limited to parties who own, operate, or
lease the facilities in question, the United States is still entitled to
judgment as a matter of law, because DIA operates the Willows Days
Inn.**

Even assuming for the sake of argument that section 303 is limited to
the parties identified in section 302, the United States is still
entitled to judgment as a matter of law. Given the degree of control it
exercises over all aspects of the operation of the hotels in the Days
Inn System, including the Willows Days Inn, DIA "operates" the Willows
Days Inn, and other Days Inns, within the meaning of section 302.[^23]

*1. The Days Inn "hotel operating system" and the "System Standards."*

When a licensee buys a franchise from DIA, part of what he or she buys
is a "hotel operating system." U.S. Facts ¶ 91. The Days Inn hotel
operating system (commonly referred to as the "Days Inn System") is both
comprehensive and mandatory. It addresses all aspects of the operation
of a Days Inn hotel, and, under the terms of the license agreement, the
licensee is required to operate the hotel in compliance with all System
Standards at all times. In addition to requiring compliance with the
Days Inn System, moreover, the agreements that licensees enter into give
DIA several additional means of control over the operation of Days Inn
hotels. The license agreement between DIA and the Patels pertaining to
the Willows Days Inn typifies the ways in which DIA can and does control
the day to day operations of the hotels in its system.

As part of its System Standards, DIA establishes operating policies for
all Days Inn hotels --- operating policies which "must be strictly
observed by each property in the Days Inn System." U.S. Facts ¶ 95. DIA
has the right to change the System Standards at any time, in any fashion
it deems necessary. U.S. Facts ¶¶ 27, 94.a. The operating policies that
Days Inn hotels must follow are set forth in the Days Inn Operating
Policies Manual, one of the Days Inn "System Standards" Manuals. U.S.
Facts ¶ 95. James Stansburry, a former HFS employee who conducted
training sessions for hotel managers and employees at Days Inn hotels
around the country, explained that the OPM

> was set up to tell the franchisee exactly what their responsibilities
> were as far as in operations, different requirements that the company
> required of them . . . . \[I\]t was their Bible to live by when
> they're at the hotel as far as operating the hotel under Days Inns'
> standards.

Deposition of James Stansburry, Exh. 17, at 114. His description is an
apt one. As more fully detailed in the United States' Statement of
Undisputed Facts, the OPM sets dozens of require-ments for the daily
operation of all Days Inn hotels, including the Willows Days Inn. U.S.
Facts ¶¶ 98, 99. Among other things, the OPM sets requirements for
grooming and attire for hotel employees, employee uniforms, hours of
operation of the front desk, services that must be provided to guests
(such as wake-up calls, fax machines, free local calls, free ice,
complimentary coffee, baby cribs, and the like), the forms of payment
the hotel must accept, guest safety and security, and swimming pools
(including pool equipment, furniture, and chlorine and pH levels). U.S.
Facts ¶¶ 99.f, h, i, j, l, m. For hotels with restaurants, the OPM sets
a variety of operating requirements for the restaurant; if there is no
restaurant at or adjacent to the hotel, the hotel must provide a free
continental breakfast, and the OPM specifies the hours and the menu
(fruit juice, coffee (including decaf) and tea, and pastries, muffins,
croissant, or "local specialties"). U.S. Facts ¶¶ 99.o, p, q.

The OPM also includes dozens of specifications for the supplies and
furnishings that must be provided in every guest room. These include
requirements for the provision of, and often the number and location of,
headboards, pictures, desks, tables, chairs, televisions, mirrors, towel
racks, clothes hangers, smoke detectors, ashtrays, wastebaskets, rolls
of toilet tissue, note pads, and sheets of hotel stationery and
envelopes. U.S. Facts ¶¶ 99.b, c. Similarly, the OPM specifies the
number of towels that must be provided in each guest rooms (three bath
towels, three hand towels, three wash cloths, and one bath mat), and the
size, weight, fiber content, and color of the towels, sheets,
pillowcases, and blankets. U.S. Facts ¶ 99.d. The maximum shrinkage
allowed is ten percent. [Id]{.underline}.

In addition, the OPM sets forth the responsibilities of the hotel's
general manager, requirements for employee relations at the hotel, and
requirements for employee job performance. U.S. Facts ¶¶ 99.a, e, g. The
OPM also sets requirements for housekeeping and maintenance at the
hotel. U.S. Facts ¶ 99.k.

*2. Enforcement of the System Standards: the Quality Assurance program*

DIA actively enforces its System Standards, including the requirements
of the OPM. Under the terms of the license agreements, DIA is entitled
to conduct, and does conduct, unannounced inspections of every Days Inn
hotel, including the Willows Days Inn, at least three times per year.
U.S. Facts ¶¶ 94.d, 101. These inspections are known as "Quality
Assurance" evaluations; at the end of each inspection, the hotel is
scored on its compliance with the System Standards. U.S. Facts ¶
111.[^24] If the hotel receives a failing score, it is reinspected, and
given thirty days to cure the conditions that caused it to fail; if it
still fails, the hotel is subject to being terminated from the system.
U.S. Facts ¶ 113. Even for hotels with better scores, "QA" deductions
can be costly. The QA scores are translated into a "Sunburst" rating
system in which each property receives from zero to five "Sunbursts,"
with higher scores getting more Sunbursts. U.S. Facts ¶¶ 115, 117. The
Sunburst ratings for all Days Inn hotels are published in the Days Inn
directory, which is published twice a year, and distributed free of
charge at every Days Inn hotel. U.S. Facts ¶¶ 115, 116. A hotel's
performance on its unannounced QA evaluations can thus have a
significant impact on whether guests will choose to stay at the hotel.
U.S. Facts ¶¶ 117, 118.

QA inspections are exacting. They include hundreds of items, both inside
and outside the facility. U.S. Facts ¶ 106. QA inspectors arrive at the
property unannounced, posing as guests. U.S. Facts ¶ 105. They assess
the appearance, grooming, and professionalism of the front desk staff,
and ask several questions about the hotel and the local area, to assess
their knowledgeability. U.S. Facts ¶ 108. The QA inspectors frequently
stay overnight at the hotel. U.S. Facts ¶ 105. Among other things, QA
inspectors check for compliance with Days Inn's operating standards,
marketing programs, and reservations policies. U.S. Facts ¶¶ 106, 107,
109.

At the Willows Days Inn, QA inspectors generally checked the cleanliness
of the guest rooms and various features and elements within guest rooms
(including the door, carpeting, vanity, and inside the dressers), and
also checked the quality of bed linens, the wattage of the light bulbs
in guest room lamps, and the cleanliness of the air conditioning
filters. U.S. Facts ¶ 152. The inspections also addressed various safety
features, including checking the guest room security latches to ensure
they were working properly, testing the smoke detectors, checking the
fire extinguishers and first aid kit, and inspecting the swimming pool
safety equipment. U.S. Facts ¶ 153.

At the conclusion of the inspection, which typically takes two hours or
more, the inspector fills out a QA evaluation form, giving the property
a score for the inspection. U.S. Facts ¶ 111. The inspector discusses
the results of the inspection with the hotel manager, and seeks a
commitment from the manager to correct items for which deductions were
taken. U.S. Facts ¶ 112. Those commitments often include commitments to
take certain actions on a daily basis. [Id]{.underline}.

*3. Other means by which DIA controls or directs the functioning of the
hotels in its system.*

In addition to the System Standards --- as set out in the OPM and
enforced by the QA program --- the license agreements give DIA a variety
of other forms of control over or involvement in the operations of
individual Days Inn hotels, including the Willows Days Inn.

a\. [Control over renovations or other physical changes to the
hotel]{.underline}.

As described in Part II.D., above, DIA has considerable control over the
initial design and construction of new Days Inn hotels. The license
agreements give DIA a similar level of control over any renovations or
other changes to the hotel. First, the agreements contain provisions
prohibiting the licensee from materially modifying, diminishing, or
expanding the hotel, or changing its interior design or layout, without
DIA's prior written consent. U.S. Facts ¶ 94.r. DIA also has the
authority affirmatively to require its licensees to undertake
renovations to their hotels. Under the terms of the standard license
agreement, DIA can require licensees to undertake renovations costing
(by DIA's estimate) up to an aggregate of \$3,000 times the number of
guest rooms. U.S. Facts ¶ 94.q. The Willows license agreement contains
two renovations provisions: one for "minor" renovations, which is capped
at \$1,000 times the number of guest rooms, and the other for "major"
renovations, which is capped at \$10,000 times the number of rooms (for
the Willows hotel, \$50,000 and \$500,000, respectively), adjusted for
inflation. U.S. Facts ¶¶ 94.s, t.

b\. [The Days Inn reservation system and policies]{.underline}.

DIA operates a national reservations system, which produces
approximately 25-30% of the room reservations for Days Inn hotels
system-wide. U.S. Facts ¶¶ 121, 123. All Days Inn hotels, including the
Willows Days Inn, are required to participate in the system, and to
honor reservations accepted by the system. U.S. Facts ¶¶ 122, 124.
System hotels are also required to comply with other reservations
policies set by DIA, including their "walk" policy, which requires
hotels to find other lodging for guests with confirmed reservations
whose rooms are not available, and, if the substitute lodging costs
more, to pay the difference. U.S. Facts ¶ 157.

c\. [DIA's mandatory marketing programs]{.underline}.

Under the terms of the license agreements, licensees are required to
participate in a variety of marketing and promotional programs conducted
by DIA. Under some of these programs --- for example, the September Days
Club for senior citizens, and the Inn-Credible Club Card, for business
travelers --- individual Days Inn hotels are required to provide
discounted room rates and other benefits to members. U.S. Facts ¶¶
126.b, d. Under at least one marketing program, the Simple Super Saver
program, DIA both sets a minimum discount that must be offered, and
imposes an upper limit on rate that licensees may charge. U.S. Facts ¶
126.e. DIA also conducts promotional programs from time to time,
including programs connected to popular motion pictures; for programs
like these, DIA requires licensees, including the Patels, to purchase
promotional materials to be displayed in hotel lobby or to be given away
to guests. U.S. Facts ¶ 126.f.

Other DIA marketing programs impose service requirements on Days Inn
licensees. For instance, DIA requires licensees to engage in a "Courtesy
Call Program," in which the hotel's front desk staff is required to
contact each guest shortly after check-in, to ensure that the guest has
no complaints. U.S. Facts ¶ 126.a. The front desk staff are required to
keep a log of all "courtesy calls," and a review of that log is included
in the Days Inn QA inspections. U.S. Facts ¶ 106.

d\. [DIA's mandatory training programs for managers and employees of all
Days Inn hotels]{.underline}.

DIA conducts several training programs for the general managers of Days
Inn hotels and hotel employees, many of which are mandatory. The first
is what DIA calls the "Property Training Program," which is the training
session that occurs at the hotel, at or near the completion of
construction of a new Days Inn hotel. U.S. Facts ¶ 135. The hotel's
management, front desk staff, and housekeepers are all required to
attend various sessions of the training, which lasts about three days.
*See* Fox Letter, Exh. 28.[^25] As the agenda for the program reveals,
the training sessions cover a wide variety of topics, including
marketing, communications skills, maximizing occupancy and room rates,
the reservations system, Quality Assurance standards (including mock
inspections of hotel guest rooms), guest safety and security, and guest
services. [Id]{.underline}. The initial property training for the
Willows Days Inn took place September 27-30, 1993. [Id]{.underline}.

In connection with its initial property training and other training
programs, DIA produces and issues to licensees a wide range of training
manuals. These include manuals on housekeeping, hotel maintenance, guest
services, telephone etiquette, and many other topics. U.S. Facts ¶ 138.
These training manuals provide detailed instruction on how to accomplish
various tasks arising in the course of the day to day operation of a
Days Inn hotel. For instance, general managers are provided with a
manual on how to train their housekeepers, which manual covers
employees' personal appearance (including brushing teeth, trimming
fingernails, and moderate use of cosmetics), standards for cleaning
guest rooms (including how to arrange items on the housekeepers' cart,
how to prepare a room for cleaning, how to clean the bathroom and make
the beds, and how to vacuum the carpet). U.S. Facts ¶ 138.a. The same
manual also provides staffing guidelines for housekeeping, based in part
on the average time to clean a guest room, which, "according to Days
Inns' standards" is 28 minutes. U.S. Facts ¶ 138.a.iii.

Other manuals are provided directly to hotel employees who participate
in training sessions conducted by DIA. For instance, DIA provides a
"Housekeeping Participants Manual," which also shows how to arrange the
housekeeper's cart, and addresses personal grooming, a "Telephone
Etiquette Participants' Manual," which addresses how to answer the phone
at a Days Inn hotel, and a "Guest Services Participants' Manual," which
addresses the courtesy call program and dealing with guest complaints,
and provides a series of form letters that can be used to respond to
complaint. U.S. Facts ¶¶ 138.b, c, d. DIA also provides a Maintenance
Operating Manual covering a variety of topics related to maintaining and
repairing various aspects of and equipment at a Days Inn hotel. U.S.
Facts ¶ 138.e.

In addition to the initial property training, general managers of all
Days Inn hotels are required to attend DIA's Hospitality Management
Training. U.S. Facts ¶¶ 128, 129, 132. This week-long training session
occurs at the Days Learning Center in Knoxville, Tennessee, and covers a
wide range of topics relating to the operation of a Days Inn hotel. U.S.
Facts ¶¶ 127, 130, 131. In particular, HMT covers the Days Inn System
standards, setting room rates, managing room inventory, controlling
labor costs, scheduling, motivating and managing hotel personnel, sales
and marketing, labor laws, loss prevention and risk management,
innkeepers' law, safety and security, occupational health and safety
standards, stress management, leadership skills, and unit operation and
maintenance, and recruiting, interviewing, and selecting hotel
personnel. U.S. Facts ¶ 131.

In addition to initial property training and HMT, DIA engages in a
variety of other training efforts, including training for hotel
employees provided at the hotel site by QA inspectors, and training
programs provided by regional alliances of Days Inn hotels. U.S. Facts
¶¶ 133, 137.

e\. [The Days Inn Guest Services department]{.underline}.

DIA also controls the way its licensees deal with guest complaints. DIA
has a "Guest Services" department which oversees the handling of all
guest complaints regarding Days Inn hotels. U.S. Facts ¶ 139. DIA
requires its licensees to respond to all guest complaints, even if
meritless, and to report to DIA on how it has resolved them. U.S. Facts
¶¶ 140-143. DIA provides sample form letters to licensees, for them to
use in responding to guest complaints. U.S. Facts ¶ 138.d. If a licensee
does not respond to a complaint, of if DIA chooses to handle the matter
itself, the DIA Guest Services department will resolve the matter with
the guest, and, if a refund is given, charge the hotel in question for
the amount of the refund. U.S. Facts ¶¶ 140, 141.

f\. [Other controls on the operations of Days Inn hotels granted to DIA
by the license agreements]{.underline}.

Finally, there are several other provisions in the Days Inn license
agreements that give DIA control over various other aspects of the
operation of Days Inn system hotels. For instance, provisions in both
the standard license agreement and the Willows license agreement require
the licensees to keep books and records specified by DIA, in a form
specified by DIA, require the licensees to provide financial statements
to DIA, and allow DIA to audit their books at any time. U.S. Facts ¶
94.f, 147.j. There are provisions that require licensees to purchase
certain supplies and equipment --- anything bearing the DIA logo ---
from suppliers approved by DIA, and requiring the licensees to provide
complimentary items and services to guests whenever DIA directs them to
do so. U.S. Facts ¶¶ 94.k, l. The agreements allow DIA to hold annual
conferences for their licensees, which licensees are required to attend.
U.S. Facts ¶¶ 94.j, 147.f. The agreements also contain provisions
limiting the ability of the licensees to operate any food or beverage
service at the hotel, and requiring the licensees to get DIA's approval
for any outside management company to run the hotel. U.S. Facts ¶¶ 94.m,
n, 147.g, k.

**D. The Court should assess civil penalties against DIA and HFS.**

In addition to authorizing injunctive relief, the ADA also authorizes
the Court, in a case brought by the Attorney General, to assess a civil
penalty against an entity that has violated title III, to vindicate the
public interest. 42 U.S.C. § 12188(b)(2)(C). Such a penalty may be in
any amount up to \$50,000.00 for a first violation, and up to
\$100,000.00 for a subsequent violation.[^26]

Civil penalties serve two purposes: 1) to punish wrongful conduct, [Tull
v. United States]{.underline}, 481 U.S. 412, 422 n.7 (1987); [United
States v. Balistrieri]{.underline}, 981 F.2d 916, 936 (7th Cir. 1992),
and 2) to deter other potential violators. [United States v. ITT
Continental Baking Co.]{.underline}, 420 U.S. 223, 231, 232-33 (1975);
[United States v. Reader\'s Digest Ass\'n, Inc.]{.underline}, 662 F.2d
955, 966-67 (3d Cir. 1981). Thus, a civil penalty must not be so small
as to be an acceptable cost of doing business, as that would nullify its
effectiveness in punishing wrongdoing and deterring illegal conduct.
[ITT Continental Baking]{.underline}, 420 U.S. at 231-32; [Reader\'s
Digest Ass\'n]{.underline}, 662 F.2d at 966-67, 967 n.16. As a
consequence, the Ninth Circuit and other Courts of Appeals have
consistently held that when civil penalties are sought, a defendant\'s
financial condition is a relevant factor to consider. [Federal Election
Comm\'n v. Furgatch]{.underline}, 869 F.2d 1256, 1258 (9th Cir. 1989)
(in determining size of civil penalty, one relevant factor is
defendant\'s ability to pay). *See also* [Reader\'s Digest
Ass\'n]{.underline}, 662 F.2d at 967 (same); [United States v. Danube
Carpet Mills, Inc.]{.underline}, 737 F.2d 988, 993 (11th Cir. 1984)
(same). In addition, under the terms of the ADA, in determining the
amount of a penalty the court must give consideration to whether the
entity made any good faith effort to comply with the statute. 42 U.S.C.
§ 12188(b)(5).

Here, there is no evidence that DIA or HFS made any good faith effort to
comply with the requirements of section 303, or to ensure that new
hotels joining its chain were readily accessible to and usable by
individuals with disabilities. When HFS took control of the Days Inn
chain in January 1992, just as title III of the ADA was going into
effect, it re-issued the DIAF Planning and Design Standards Manual under
DIA's name. U.S. Facts ¶ 32.a. There were few substantive changes to the
manual, but HFS did specifically include mention of the ADA as one of
the "jurisdictional codes" that licensees were required to comply with,
and reorganized the manual to put all of the "barrier-free" provisions
in a single section. U.S. Facts ¶¶ 172, 173. Thus, there can be no
question that HFS was fully aware of the ADA when it re-issued the
manual, but it made no effort to check the PDSM's "barrier-free"
requirements to see whether they were consistent with the ADA's
architectural requirements for new hotels. [Id]{.underline}.

Further, although it reviews plans for new hotels, DIA does not check
those plans for compliance with the ADA, and does not even make careful
checks to see if the plans complied with the "barrier-free" provisions
of its own PDSM. If the HFS Design and Construction department had made
such checks, there might have been fewer violations of the ADA Standards
at the Willows and other new Days Inn hotels. Kiewel Dep. Exh. 21, at
205-16.

Moreover, despite provisions requiring their licensees to comply with
all federal laws and regulations, specifically including the ADA, DIA
and HFS have routinely admitted hotels into the Days Inn system which
they knew or should have known were not accessible to people with
disabilities including the Willows hotel. The ADA violations at these
hotels were not minor, or isolated, or hidden; rather, as detailed
above, there were numerous violations of the Standards at the Willows
hotel, in every part of the facility, and the same is true of all of the
other hotels examined by the United States. DIA representatives tour the
hotels upon their completion, and QA inspectors inspect the hotels
regularly. DIA and HFS have nonetheless accepted the Willows and other
new hotels into its system without hesitation. Indeed, DIA and HFS
exhibit no concern at all over the fact that the Days Inn hotel chain
includes numerous new hotels that are inaccessible to individuals with
disabilities. According to Mr. Keeble, no one at HFS or DIA makes any
effort to check to see whether Days Inn hotels comply with the
requirements of the ADA, despite the provision in the license agreement
requiring the hotel to comply with federal law. U.S. Facts ¶ 177. As far
as DIA and HFS are concerned, ADA compliance is someone else's problem.

Finally, given the size and resources of these defendants, a significant
civil penalty is warranted. HFS is the nation's largest franchisor of
economy hotels, and has substantial annual revenues. U.S. Facts ¶ 181.
Keeping in mind the Supreme Court's directive that civil penalties must
not be small enough to be an acceptable cost of doing business, one
relevant consideration are the royalties collected by DIA and HFS from
the Willows hotel, which have averaged \$3,841.20 per month. U.S. Facts
¶ 180. Given that the hotel opened nearly four years ago, DIA and HFS
have collected well over \$150,000 from the Willows hotel. The United
States urges this court to impose civil penalties on both DIA and HFS of
sufficient magnitude to render their conduct with respect to the Willows
Days Inn unprofitable, and to deter others from engaging in a pattern or
practice of discrimination like that engaged in by DIA and HFS.

**IV. CONCLUSION**

For the reasons stated above, the United States respectfully requests
that the Court enter judgment in its favor, and grant the relief
requested in its Complaint.

Respectfully submitted,

ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Acting Deputy

Chief

Disability Rights Section

Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

MARGARITA M. PRIETO

JEANINE M. WORDEN

THOMAS M. CONTOIS

ROBERTA STINAR KIRKENDALL

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-0196

Dated: August 17, 1997

[^1]: ^?^The United States has entered into three separate consent
    decrees with the owner, architect, and general contractor. Under the
    terms of those decrees, the owner has undertaken to remedy
    substantially all of the ADA violations at the Willows Days Inn, and
    the architect and contractor have agreed to pay civil penalties to
    the United States in the amounts of \$18,000 and \$7,000,
    respectively.

[^2]: ^?^A court may grant summary judgment when \"the pleadings,
    depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine
    issue as to any material fact and that the moving party is entitled
    to judgment as a matter of law.\" Fed. R. Civ. P. 56(c). [Celotex
    Corp. v. Catrett]{.underline}, 477 U.S. 317 (1986); [Anderson v.
    Liberty Lobby, Inc.]{.underline}, 477 U.S. 242 (1986); [Matsushita
    Elec. Indus. Co., Ltd. v. Zenith Radio Corp.]{.underline}, 475 U.S.
    574 (1986). *See also* [Covey v. Hollydale Mobile Home
    Estates]{.underline}, 116 F.3d 830, 834 (9th Cir. 1997); [Bagdadi v.
    Nazar]{.underline}, 84 F.3d 1194, 1197 (9th Cir. 1996).

[^3]: ^?^Citations to \"U.S. Facts\" refer to the United States\'
    Statement of Undisputed Facts filed with this memorandum. All
    references to Exhibits (in the form "Exh. \_\_") are references to
    exhibits provided with the United States' Statement of Undisputed
    Facts.

[^4]: ^?^There is no dispute that the hotel qualifies as new
    construction under title III of the ADA, or that it is subject to
    the requirements of section 303. The Willows Days Inn is a place of
    lodging with five or more rooms; the last application for a building
    permit for the facility occurred after January 26, 1993, and the
    facility's first certificate of occupancy was issued after January
    26, 1993. U.S. Facts ¶¶ 5-8. *See* 28 C.F.R. § 36.401.

[^5]: ^?^The ADA's Standards for Accessible Design require that, "in
    order to provide persons with disabilities a range of options
    equivalent to those available to other persons served by the
    facility, \[a hotel's accessible\] sleeping rooms and suites . . .
    shall be dispersed among the various classes of sleeping
    accommodations available" at the hotel. Standards § 9.1.4.

[^6]: ^?^The Days Inn Planning and Design Standards Manual (PDSM) calls
    for all accessible rooms to have only one bed, and suggests that
    they all be located on the hotel's ground floor. PDSM, Exh. 4, §
    10.04.B. at 107-08.

[^7]: ^?^The registration desk at the Willows Days Inn is 45 3/4 inches
    high. Accessibility Evaluation Report, Days Inn Hotel, Willows, CA,
    prepared by William F. Hecker, AIA (Hecker Willows Report), Exh. 7,
    ¶ 5(a) at 5. A drawing of the registration desk in the PDSM shows
    the desk with a height of 46 inches. PDSM, Exh. 4, Appendix B,
    Section A, at 147. The Standards require that at least a portion of
    the registration desk be no more than 36 high. Standards § 7.2(2).

[^8]: ^?^The PDSM calls for the doors to standard guest room bathrooms
    to be 28 inches wide (2 feet, 4 inches). PDSM, Exh. 4, § 5.02.E.1 at
    39. The Standards require that doors into and within
    [all]{.underline} guest rooms provide a clear opening width of at
    least 32 inches. Standards § 9.4. It is physically impossible, of
    course, for a 28 inch door to provide a 32 inch opening. *See*
    Deposition of Harold Dean Kiewel (Kiewel Dep.), Exh. 21, at 81-83.

[^9]: ^?^Because they are so closely related, DIA and HFS will be
    referred to collectively as "DIA," unless the context requires
    otherwise. In addition to being a wholly owned subsidiary of HFS,
    *see* U.S. Facts ¶ 11, DIA and HFS have the same address and share
    office space, U.S. Facts ¶ 9, 10, 164, and file consolidated annual
    reports and tax returns. U.S. Facts ¶¶ 165-167. Moreover, DIA has no
    employees; all DIA functions are carried out by HFS employees. U.S.
    Facts ¶ 168.

[^10]: ^?^The DIA representative was at the property from September
    27-30; the hotel opened for business on September 30. U.S. Facts ¶
    8. *See also* Letter dated September 22, 1993 from Teri Fox to
    Bankim Patel ("Fox Letter"), Exh. 28.

[^11]: ^?^[See]{.underline} section 302(b)(2)(A)(iv) of the ADA, 42
    U.S.C. § 12182(b)(2)(A)(iv), requiring removal of architectural
    barriers to access in facilities built before the passage of the ADA
    only to the extent that removing such barriers is "readily
    achievable." "Readily achievable" is defined to mean "easily
    accomplishable and able to be carried out without much difficulty or
    expense." 42 U.S.C. § 12181(9) (and setting forth factors to
    consider in determining whether it is readily achievable to remove
    barriers in a particular case).

[^12]: ^?^As the Department of Justice explained in the deposition taken
    by DIA under Fed. R. Civ. P. 30(b)(6), "\[y\]our liability is
    coextensive with the scope of your involvement and participation."
    Deposition of Elizabeth Savage ("Savage Dep.") at 81 (copy provided
    as Exhibit 27 to United States' Statement of Undisputed Facts). *See
    also* Savage Dep., Exh. 27, at 103 ("The test \[under section 303\]
    is that you are involved in the design and construction and that
    your liability is coextensive with the extent of your involvement.")

[^13]: ^?^As the discussion in Part II.D., above, indicates, these kinds
    of involvement in the design and construction of new Days Inn hotels
    were not unique to the Willows Days Inn, but rather were typical of
    DIA's involvement in the design and construction of all new Days Inn
    hotels.

[^14]: ^?^Title III\'s general mandate prohibiting discrimination
    against individuals with disabilities in public accommodations is
    set out in section 302(a) of the Act, which provides that

    > \[n\]o individual shall be discriminated against on the basis of
    > disability in the full and equal enjoyment of the goods, services,
    > facilities, privileges, advantages, or accommodations of any place
    > of public accommodation by any person who owns, leases (or leases
    > to), or operates a place of public accommodation.

    42 U.S.C. § 12182(a). Section 302(b) then construes section 302(a),
    defining discrimination on the basis of disability to include
    various acts or omissions. For instance, 302(b) generally makes it
    unlawful for public accommodations to deny individuals with
    disabilities opportunities to participate in and benefit from their
    services on a basis equal to that offered to other individuals.
    *See* 42 U.S.C. § 12182(b)(1)(A)(ii). Section 302(b) also prohibits
    several specific forms of discrimination, including, for instance,
    failing to provide auxiliary aids or services --- such as assistive
    listening devices, sign language interpreters, documents in Braille,
    and so on --- and failing to remove architectural barriers to
    access, when doing either is necessary to ensure that individuals
    with disabilities are not excluded from or denied services by a
    public accommodation. *See* 42 U.S.C. § 12182(b)(2)(A).

[^15]: ^?^Excepted from the definition of commercial facilities are
    aircraft, certain railroad facilities and equipment, and certain
    facilities covered or exempted from coverage under the Fair Housing
    Act. 42 U.S.C. § 12181(2).

[^16]: ^?^The Willows Days Inn, for instance, is a non-residential
    facility whose operations affect commerce, and thus is a
    \"commercial facility.\" In addition, the hotel is a \"public
    accommodation,\" as it falls within one of the statute\'s categories
    of public accommodation: it is \"an inn, hotel, motel, or other
    place of lodging,\" within the meaning of section 301(7)(A). *See*
    42 U.S.C. §§ 12181(7)(A).

[^17]: ^?^The section in question became section 303(a)(2), which
    defines illegal discrimination to include a failure, when altering a
    facility or portion of a facility, to make those alterations in a
    manner that the altered portions of the facility are readily
    accessible to and usable by individuals with disabilities. 42 U.S.C.
    § 12183(a)(2).

[^18]: ^?^Moreover, limiting section 303 coverage to those parties
    identified in section 302 makes no sense from a practical
    perspective. While parties who own, operate, or lease public
    accommodations are the obvious choice for the obligations related to
    the day to day operation of the businesses imposed by section 302,
    *see* n.14, *supra*, parties who lease or operate a facility
    frequently will have nothing whatever to do with the initial design
    and construction of the facility. Indeed, it is not at all clear how
    one would even identify who it is that "operates" a facility that
    has not yet been built.

[^19]: ^?^*See* [Peyton v. Rowe]{.underline}, 391 U.S. 54, 65 (1968)
    (civil rights legislation should be liberally construed in order to
    effectuate its remedial purpose); [Tcherepnin v.
    Knight]{.underline}, 389 U.S. 332, 336 (1967) (it is a \"familiar
    canon of statutory construction that remedial legislation should be
    construed broadly to effectuate its purposes\"). \"\[R\]emedial
    statutes are to be liberally construed to effectuate their
    purposes.\" [Rettig v. Pension Benefit Guar. Corp.]{.underline}, 744
    F.2d 133, 155 n.54 (D.C. Cir. 1984). *See also* [Carparts Distrib.
    Ctr., Inc. v. Automotive Wholesaler\'s Ass\'n]{.underline}, 37 F.3d
    12, 18 (1st Cir. 1994) (broadly construing the ADA); [Kinney v.
    Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993) (same), [cert.
    denied]{.underline} [sub]{.underline} [nom.]{.underline} [Hoskins v.
    Kinney]{.underline}, 114 S. Ct. 1545 (1994); [Howe v.
    Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994) (same).

[^20]: ^?^Congress recognized that modifying or retrofitting a facility
    after it is built can be very costly (which is why Congress imposed
    only a limited obligation to remove architec-tural barriers to
    access in facilities in existence prior to the ADA\'s effective date
    --- *see* 42 U.S.C. § 12182(b)(2)(A)(iv)), and therefore sought to
    have new facilities designed and constructed to be accessible from
    the beginning.

    > Because retrofitting existing structures to make them fully
    > accessible is costly, a far lower standard of accessibility has
    > been adopted for existing structures --- a standard of \"readily
    > achievable.\" Because it costs far less to incorporate accessible
    > design into the planning and constructing of new buildings and of
    > alterations, a higher standard of \"readily accessible to and
    > usable by\" person with disabilities has been adopted in the ADA
    > for new construction and alterations.

    H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 60 (1990).

[^21]: ^?^Section 804(f)(3)(C) of the Fair Housing Act provides that

    > For purposes of this subsection, discrimination includes ---
    >
    > in connection with the design and construction of covered
    > multifamily dwellings for first occupancy after \[March 13,
    > 1991\], a failure to design and construct those dwellings in such
    > a manner that ---
    >
    > the public use and common use portions of such dwellings are
    > readily accessible to and usable by handicapped persons . . . .

    42 U.S.C. § 3604(f)(3)(C).

[^22]: ^?^The [Johanson]{.underline} case is still pending in the United
    States District Court for the Southern District of Florida.

[^23]: ^?^The term "operates" is not defined in the statute. One common
    dictionary defines the term to mean "to control or direct the
    functioning of," "to conduct the affairs of," or "to bring about or
    effect." [Webster's II New Riverside University
    Dictionary]{.underline} 823 (1988). Similarly, Black's Law
    Dictionary defines "operate" as "to perform a function, or
    operation, or produce an effect." [Black's Law
    Dictionary]{.underline} 984 (5th ed. 1979).

[^24]: ^?^The inspections are mandatory; if a hotel refuses an
    inspection, it receives a score of zero. U.S. Facts ¶ 114.

[^25]: ^?^Mr. Keeble testified that the letter sent by Ms. Fox setting
    the agenda for initial property training was a form letter sent to
    all hotels. Keeble Dep., Exh. 14, at 945-46.

[^26]: ^?^Similar cases brought by the United States, each alleging
    violations of section 303 of the ADA, are pending against DIA and
    HFS in four other United States District Courts. Accordingly, this
    case may or may not be the first in which DIA and HFS are held to
    have violated title III of the ADA.