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
>
> )
>
> ) DATE: October 20, 1997

DAYS INNS OF AMERICA, INC., ) TIME: 1:30 p.m.

HFS, INCORPORATED, DILIP PATEL, ) COURTROOM: 2

IYER & ASSOCIATES, and )

R.E. HUFFMAN CORPORATION, )

> )
>
> Defendants. )

)

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

**MOTION FOR SUMMARY JUDGMENT**

TABLE OF CONTENTS

[Page]{.underline}

ARGUMENT 1

> A. DIA Continues to Ignore the Central Flaw in its Argument about the
> Coverage of Section 303 of\
> the ADA. 1
>
> B. The Undisputed Facts Demonstrate that DIA and\
> HFS have Violated Section 303 of the ADA. 3
>
> C. The United States\' Reading of Section 303 Does\
> Not Make the Statute Void for Vagueness. 8
>
> D. DIA\'s Various Other Objections to the United\
> States\' Reading of Section 303 are Equally\
> Baseless. 15
>
> E. DIA has Engaged in a Pattern or Practice of\
> Illegal Discrimination. 20
>
> F. DIA and HFS are Effectively the Same Entity. 26

CONCLUSION 27

TABLE OF AUTHORITIES

[Cases]{.underline}: [Page]{.underline}

[Bank of New York v. Meridien BIAO Bank Tanzania Ltd.]{.underline},

171 F.R.D. 135 (S.D.N.Y. 1997) 7

[Brinson v. Linda Rose Joint Venture]{.underline}, 53 F.3d 1044

(9th Cir. 1995) 4

[Chalmers v. City of Los Angeles]{.underline}, 762 F.2d 753

(9th Cir. 1985) 13

[Craik v. Minnesota State University Bd.]{.underline},

731 F.2d 465 (8th Cir. 1984) 21

[Grayned v. City of Rockford]{.underline}, 408 U.S. at 104 (1972) 12

[International Bhd. Teamsters v. United States]{.underline},

431 U.S. 324 (1977) 20, 21

[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 1175

(S.D. Fla. 1997) 3

[Johnson v. Hale]{.underline}, 13 F.3d 1351 (9th Cir. 1994) 21

[Matsushita Elec. Indus. Corp. v. Zenith Radio Corp.]{.underline},

475 U.S. 574 (1986) 4

[Nevada Power Co. v. Monsanto Co.]{.underline}, 891 F.Supp. 1406

(D.Nev. 1995) 7

[Paralyzed Veterans of America v. D.C. Arena L.P.]{.underline},

117 F.3d 579 (D.C. Cir. 1997) 14

[Pinnock v. International House of Pancakes Franchisee]{.underline},

844 F. Supp. 574 (S.D. Cal. 1993) 13, 14

[United States v. Balistrieri]{.underline}, 981 F.2d 916 (7th Cir. 1992)
21

[United States v. DiMucci]{.underline}, 879 F.2d 1488 (7th Cir. 1989) 21

[United States v. Ellerbe Becket, Inc.]{.underline},

Civil No. 4-96-995 (D. Minn. Oct. 2, 1997) 2, 3

[United States v. Powell]{.underline}, 423 U.S. 87 (1975) 12

[United States v. Real Estate Development Corp.]{.underline},

347 F. Supp. 776 (N.D. Miss. 1972) 21

[United States v. West Peachtree Tenth Corp.]{.underline},

437 F.2d 221 (5th Cir. 1971) 21

[Village of Hoffman Estates v. Flipside,]{.underline}

[Hoffman Estates, Inc.]{.underline}, 455 U.S. 489 (l982) 13

[Statutes]{.underline}:

42 U.S.C. § 12181(2) 4

42 U.S.C. § 12181(7) 4

42 U.S.C. § 12183(a)(1) 4

42 U.S.C. § 12206(a) 14

42 U.S.C. § 12206(b) 14

[Regulations]{.underline}:

28 C.F.R. § 36.401 4

28 C.F.R. § 36.406 4

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

28 C.F.R. Part 36, Appendix B, § 36.401 14

[Rules]{.underline}:

Fed. R. Civ. P. 30(e) 10

Fed. R. Civ. P. 56(e) 4

[Other]{.underline}:

U.S. Department of Justice, Civil Rights Division,

Public Access Section, [The Americans with Disabilities]{.underline}

[Act Title III Technical Assistance Manual, Covering]{.underline}

[Public Accommodations and Commercial Facilities]{.underline}

§ III-5.1000 (November 1993) 14

In opposing the United States\' motion for summary judgment, DIA and HFS
(collectively, "DIA") continue to ignore the central flaw in their legal
argument --- that their reading of sections 302 and 303 of the ADA
effectively eliminates coverage of commercial facilities from the scope
of section 303. In addition, DIA fails to come forward with evidence to
contradict the United States\' showing that the Willows Days Inn is
inaccessible to individuals with disabilities, and that numerous other
new Days Inn hotels are inaccessible as well. DIA also fails to come
forward with admissible evidence to dispute the various ways in which it
had control over, and participated in, the design and construction of
the Willows Days Inn and other new Days Inn hotels. Rather, DIA opposes
the United States\' motion by repeatedly attempting to distort the
United States\' position --- and then calling those distortions vague,
unreasonable, and unworkable. In doing so, DIA fails to establish that
there is any genuine issue of material fact that precludes judgment as a
matter of law.

**ARGUMENT**

**A. DIA Continues to Ignore the Central Flaw in its Argument about the
Coverage of Section 303 of the ADA**.

Nowhere in its argument --- not in its memorandum in support of its
motion for summary judgment, and not in its memorandum in opposition to
the United States\' motion for summary judgment --- does DIA address the
central flaw in its reading of sections 302 and 303 of the ADA. DIA
never explains why section 303, which applies to both public
accommodations and commercial facilities, should be limited to parties
who own, operate, or lease public accommodations. DIA\'s reading of the
statute would effectively eliminate commercial facilities from the
coverage of section 303. *See* United States\' Memorandum in Support of
its Motion for Summary Judgment ("U.S. Memorandum") at 20-25; United
States Memorandum in Opposition to Days Inns of America, Inc. and HFS
Incorporated\'s Motion for Summary Judgment ("U.S. Opposition") at 7-10.

DIA\'s only answer is to call the government\'s position
"hypertechnical." Memorandum of Days Inns of America, Inc. and HFS
Incorporated in Opposition to Plaintiff\'s Motion for Summary Judgment
("DIA Opposition") at 16. Despite DIA\'s posturing, however, and its
repeated insistence that the government\'s reading of section 303 makes
no sense, a second federal court has now concluded that the
government\'s reading of section 303 is correct. In [United States v.
Ellerbe Becket, Inc.]{.underline}, Civil No. 4-96-995 (D. Minn. October
2, 1997) (copy provided as Exhibit A to this memorandum), the United
States sued the Ellerbe Becket architectural firm for repeatedly
designing new sports stadiums and arenas in violation of the ADA\'s
architectural requirements for new construction. Ellerbe moved to
dismiss the action against it, arguing (as DIA does here), that
architects are not covered by section 303 because the "plain language"
of title III requires that section 303 be limited to parties who own,
operate, or lease the facility in question. The court squarely rejected
that argument:

> Congress clearly intended that commercial facilities be subject to the
> accessibility standards for new construction. *See* H.R. Rep. 485,
> Part 2, 101st Cong., 2d Sess. 116 (1990) ("the use of the term
> ‛commercial facilities\' is designed to cover those structures that
> are not included within the specific definition of ‛public
> accommodation.\'"). Statutory language should be construed in a manner
> that gives effect to all terms so as to avoid rendering terms useless.
> *See* *Moskal v. United States*, 498 U.S. 103, 109-110 (1990). Ellerbe
> has not explained adequately how its interpretation would not result
> in an inexplicable gap in coverage of a class of buildings Congress
> clearly intended to be covered by the accessibility standards for new
> construction. Ellerbe responds by arguing that the list of entities
> liable should be imported into § 303(a) from § 302(a), but the phrase
> "of public accommodations" should be expanded to include "or
> commercial facilities." This argument undercuts Ellerbe\'s "plain
> language" logic.

Slip op. at 10-11. Noting that another federal court had come to the
same conclusion, the [Ellerbe]{.underline} court concluded that although
the Ellerbe firm did not own, operate, or lease any of the facilities in
question, it could nonetheless be held liable under section 303 of the
ADA, and denied Ellerbe\'s motion to dismiss. [Id]{.underline}. at 6,
13. *See also* [Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F.
Supp. 1175, 1178 (S.D. Fla. 1997) (same). In sum, far from being
"hypertechnical," both the [Ellerbe]{.underline} and
[Johanson]{.underline} courts have concluded that the government\'s
position is firmly grounded in the language and structure of sections
302 and 303.[^1]

**B. The Undisputed Facts Demonstrate that DIA and HFS have Violated
Section 303 of the ADA.**

Although DIA has responded to many of the facts included in the United
States\' Statement of Undisputed Facts ("U.S. Facts"), DIA has not
contested those facts. Rather than coming forward with evidence to
dispute the facts stated by the government, DIA instead advances a
variety of legal arguments. DIA has thus failed to establish that any
genuine issue of material fact precludes judgment as a matter of
law.[^2]

The undisputed facts demonstrate that the Willows Days Inn is a newly
constructed hotel subject to the ADA\'s architectural accessibility
requirements for newly constructed facilities. U.S. Facts ¶¶ 5-8. *See
also* 42 U.S.C. §§ 12181(2), (7), 12183(a)(1); 28 C.F.R. §§ 36.401,
36.406. They further establish that the Willows Days Inn is not
accessible to individuals with disabilities, failing in many ways to
comply with the ADA\'s Standards for Accessible Design, 28 C.F.R. Part
36, Appendix A ("the Standards"). U.S. Facts ¶ 85.[^3] The same is true
of several other newly constructed Days Inn hotels. [Id]{.underline}. ¶¶
86-90. *See also* U.S. Memorandum at 2-8. Also undisputed are the facts
demonstrating DIA\'s control over, and participation in, the design and
construction of the Willows Days Inn and other new Days Inn hotels.
*See* U.S. Memorandum at 8-14.

DIA contests, as a factual matter, only two of the facts showing its
control over, and participation in, the design and construction of the
Willows Days Inn and other new Days Inns. In neither case, however, is
DIA able to demonstrate that there is any genuine issue of material
fact. First, DIA contends that Arvind Iyer, the architect for the
Willows Days Inn, did not receive the Days Inn Planning and Design
Standards Manual until after completing work on the Willows Days Inn.
DIA is simply wrong. Iyer testified that he received the manual on
October 29, 1992, about a month and a half before the project was issued
for bid on December 14, 1992, and that one of the architects at his firm
referred to the manual during construction of the Willows Days Inn, in
order to answer a question from the contractor. Iyer Dep., Exh. 12, at
328, 330, 335-36. In any event, even if Mr. Iyer had never received the
PDSM, the drawings he prepared were still required to comply with the
Days Inn design standards, and were reviewed for compliance with those
standards (as DIA admits). *See* DIA Fact Response ¶ 73. Given that Mr.
Iyer has designed several other Days Inn hotels, *see* U.S. Facts ¶ 56,
it may be that he was sufficiently familiar with the Days Inn design
requirements that he had no need to refer to the PDSM to produce a set
of drawings that would be acceptable to DIA. *See infra* Part E, at
23-25.

Second, citing the testimony of two architects formerly employed by HFS,
DIA contends that when its architects review plans for new hotels, they
make only "recommendations" or "suggestions." DIA Fact Response ¶ 46.
This is a blatant misrepresentation of the record. While some comments
made on plans by DIA\'s architects may be only "suggestions" or
"recommendations," a wealth of undisputed evidence clearly shows that
other comments are indeed "requirements." Mr. Keeble, DIA\'s Rule
30(b)(6) designee, testified that after reviewing the plans for a new
hotel, DIA\'s architects notify licensees as to whether there are any
"necessary changes" to the plans, and that he is the one who decides
whether deviations from the Days Inn design standards are acceptable, or
whether they must be changed. Keeble Dep., Exh. 14, at 226-27, 229.
Keeble further testified that if a new hotel is not in substantial
compliance with the Days Inn design standards, that hotel is not allowed
to join the system, and that DIA terminates licensees for failing to
comply with DIA\'s system standards. [Id]{.underline}. at 815, 819.

Similarly, Mr. Hoagland, the head of the HFS Design and Construction
Department until 1996, testified that while some comments were merely
suggestions, others were requirements, and that if a licensee did not
agree to make the required changes, DIA might refuse to allow the hotel
to join the system, or would "bring a lot of pressure on them" to get
them to agree to the changes. Hoagland Dep., Exh. 13, at 73-74. Mr.
Hoagland explained that because licensees had made significant financial
investments in obtaining the license, DIA was able to resolve virtually
all of these cases without excluding the licensee from the system.
[Id]{.underline}. Moreover, both the Days Inn UFOC and the license
agreements make clear that licensees are [required]{.underline} to
comply with DIA\'s design standards, *see* U.S. Facts ¶¶ 19, 20, 23, 24,
26, 29.a, and the PDSM itself repeatedly states that it sets
"requirements" for new hotels. *See* PDSM, Exh. 4, Foreword, at 2; §
1.02.A, at 7; § 1.02.B, at 7; § 1.02.D, at 8.

The evidence cited by DIA in support of its claim that its comments are
only "suggestions" or "recommendations" --- the testimony of Mr. Kraft
and Mr. Tischler --- is insufficient to create a genuine issue of
material fact. Messrs. Kraft and Tischler were formerly employed by HFS
as architects; they did not have management responsibilities. Keeble
Dep., Exh. 14, at 149-50, 167-68. Neither has any basis on which to
contradict the testimony of their former boss, Mr. Hoagland, or of Mr.
Keeble, who DIA designated to testify on its behalf, and whose testimony
binds the company. *See, e.g.,* [Bank of New York v. Meridien BIAO Bank
Tanzania Ltd.]{.underline}, 171 F.R.D. 135, 150 (S.D.N.Y. 1997); [Nevada
Power Co. v. Monsanto Co.]{.underline}, 891 F. Supp. 1406, 1418 (D. Nev.
1995). In sum, the record is clear that DIA exercised extensive control
over, and was extensively involved in, the design and construction of
the Willows Days Inn and several other inaccessible new Days Inn
hotels.[^4]

**C. The United States\' Reading of Section 303 Does Not Make the
Statute Void for Vagueness.**

Rather than address the central flaw in its legal position, or coming
forward with specific facts, DIA responds to the United States\' motion
for summary judgment by suggesting that the United States\' reading of
section 303 violates DIA's due process rights because it renders the
statute so vague as to be unconstitutional. DIA\'s Opposition at 7-11.
DIA's argument, however, rests on a series of misrepresentations
regarding the United States\' position and the testimony of the
government\'s witnesses.

DIA opens its argument by quoting only a portion of the United States\'
memorandum regarding the test for liability under section 303,
presenting that limited view of the government\'s position as if it were
the whole of the matter, and proceeding to argue that the government\'s
reading of section 303 is so vague as to be unconstitutional. DIA\'s
Opposition at 8. The United States has not taken the position, despite
DIA\'s claims to the contrary, that every party involved in the design
and construction of an inaccessible facility is responsible for all ADA
violations at that facility. Participating in, or having control over,
the design and construction of the facility is only one element of the
inquiry; before a party may be held liable under section 303, there must
also be a showing that some feature or element of the facility fails to
comply with the Standards, and that the failure to comply with the
Standards fell within the scope of the party\'s involvement in the
project. *See* U.S. Memorandum at 17.

Thus, DIA misses the point when it discusses, at length, the testimony
of the United States\' expert, Mr. William Hecker, regarding the various
parties that may be involved in the design and construction of a new
facility. DIA\'s Opposition at 8. Mr. Hecker quite reasonably responded
to DIA\'s increasingly strained hypothetical questions about what
individuals or entities might be "involved in" the design of a new
facility. What DIA did [not]{.underline} ask Mr. Hecker, and what Mr.
Hecker did not express any opinion on, was whether those same
individuals or entities would have any liability under section 303 of
the ADA for failures to comply with the Standards. That is, while DIA
posed many hypotheticals involving individuals or entities with very
attenuated connections to the design of the facility, DIA did not ask
what the extent of the liability of those parties would be. Under the
government\'s view of the statute --- though DIA continues to refuse to
acknowledge it --- the scope of any party\'s liability is commensurate
with the scope of that party\'s involvement in, or control over, the
design and construction of the facility. *See* U.S. Memorandum at 17.
Given that the examples offered by DIA concern parties whose involvement
or control is quite attenuated, it is quite likely that those
individuals and entities would have no liability at all under section
303.

Similarly, DIA seizes on the testimony of the United States\' Rule
30(b)(6) designee, Ms. Elizabeth Savage, and attempts to wring from it
some inconsistency. DIA\'s Opposition at 9-11.[^5] As noted in the
United States\' initial memorandum, however, Ms. Savage\'s testimony was
entirely consistent with the position the United States has taken
throughout this case and others: any party who participates in the
design and construction of an inaccessible facility may be held liable
under section 303, but the scope of that party\'s liability extends only
as far as that party\'s involvement in, or control over, the design and
construction of the facility. *See* U.S. Memorandum at 17-18, n.12.
Thus, a carpenter who frames doorways that are too narrow to comply with
the Standards has participated in the design and construction of an
inaccessible element of the facility, and can be held responsible under
section 303 for doing so. That carpenter cannot, however, be held
responsible for ADA violations in portions of the facility with which he
had nothing to do.

Moreover, DIA flatly misrepresents Ms. Savage\'s testimony with respect
to the liability of the owner of the facility. DIA claims that Ms.
Savage testified that an owner who was not "involved in" the design and
construction of a new facility would have no liability for violations of
the Standards at that facility. DIA\'s Opposition at 4. That is
precisely [not]{.underline} Ms. Savage\'s testimony. In the portion of
her testimony cited by DIA, Ms. Savage was asked about the
responsibility of an owner who purchases a completed building from the
firm that has designed and constructed it --- an owner that has no input
into or control over the design or construction of the facility. Savage
Dep., Exh. 27, at 128-29. Given that the statute only makes it illegal
to "design" and "construct" inaccessible facilities --- not to purchase
an inaccessible facility --- it is not at all clear that the owner in
the hypothetical posed by DIA\'s counsel would have any responsibility
for ADA violations at the facility. Ms. Savage expressed her skepticism
that such a situation ever would arise, and answered --- quite
consistently with the United States\' position --- that the liability of
the owner would depend on the facts. [Id]{.underline}. at 130. Indeed,
as soon as DIA\'s counsel modified the hypothetical to include some
involvement or control by the owner (the review of schematic plans by
the owner), Ms. Savage testified that that would make it more likely
that the owner would have some responsibility under section 303.
[Id]{.underline}. at 130-31.

Ms. Savage\'s testimony with regard to parties that supply construction
materials was also consistent with the United States\' position. *See*
U.S. Opposition at 19. Ms. Savage was asked about the liability of an
entity who simply supplies doors for a project; there were no other
facts to suggest that the entity in question had any involvement in, or
control over, the design of the facility, or the construction of the
facility. Savage Dep., Exh. 27, at 263. Ms. Savage responded that
suppliers who do no more than supply materials are not involved in the
"design" or "construction" of the facility, and therefore have no
liability. [Id]{.underline}. at 264. While DIA may not agree with the
limits inherent in the United States\' view of section 303, DIA is
simply wrong to suggest that the government\'s reading of section 303
does not have such limits. To the contrary, the United States\'
consistently expressed position provides a carefully measured test of
liability under section 303, assigning liability to those parties who
engage in the conduct prohibited by Congress: the design and
construction of inaccessible facilities.

In any event, even if DIA had been able to pose a hypothetical situation
which confounded Ms. Savage --- which it did not --- doing so is
insufficient to establish that the statute, or the government\'s reading
of it, is void for vagueness. As the Supreme Court has explained, "we
can never expect mathematical certainty from our language": rather, "it
will always be true that the fertile legal imagination can conjure up
hypothetical cases in which the meaning of (disputed) terms will be in
nice question." [Grayned v. City of Rockford]{.underline}, 408 U.S. 104,
110, 110 n.15 (1972) (parentheses in original; internal quotation marks
and citation omitted). *See also* [United States v. Powell]{.underline},
423 U.S. 87, 93 (1975) (holding that a statute is not unconstitutionally
vague because doubts may be conceived "as to the applicability of the
language in marginal fact situations"). Thus, there is no merit to
DIA\'s complaint that Ms. Savage frequently responded to the
hypothetical questions posed by DIA\'s counsel by indicating that the
answers would depend on the facts of the case. A statute is not void for
vagueness because its application requires a factual inquiry into a
party's specific conduct.

Indeed, the cases make clear that neither section 303 nor the United
States\' interpretation of it are impermissibly vague. Because title III
of the ADA is a civil statute regulating commercial conduct, it is
subject to scrutiny less strict than that applied to criminal statutes,
or statutes restricting free speech. [Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc.]{.underline}, 455 U.S. 489, 498 (1982);
[Chalmers v. City of Los Angeles]{.underline}, 762 F.2d 753, 757 (9th
Cir. 1985); [Pinnock v. Int'l House of Pancakes Franchisee]{.underline},
844 F. Supp. 574, 580 (S.D. Cal. 1993). Thus, section 303 (or the
government\'s interpretation of it) can only be held void for vagueness
if "no standard of conduct is specified at all." [Hoffman
Estates]{.underline}, 455 U.S. at 495 n.7 (1982). Further, in
determining whether DIA has met this test, the Court must consider the
words of the statute, and any limiting constructions proffered by the
agency charged with enforcing the statute. [Hoffman
Estates]{.underline}, 455 U.S. at 495 n.5.

The language of section 303 itself provides ample notice of the conduct
that it prohibits: the design and construction of inaccessible
facilities. Moreover, the government has consistently interpreted
section 303 to apply to all parties who engage in that conduct. The
preamble to the Department of Justice\'s regulation implementing title
III of the ADA indicated that the section could apply to "architects,
contractors, developers, tenants, owners, and other entities," and that
the Department intended to enforce the section consistently with its
broad prohibition of the design and construction of inaccessible
facilities:

> The Department will interpret this section in a manner consistent with
> the intent of the statute and with the nature of the responsibilities
> of the various entities for design, for construction, or for both.

28 C.F.R. Part 36, Appendix B, § 36.401. In addition, the Department of
Justice specifically addressed the scope of section 303\'s coverage in
its Technical Assistance Manual for title III. The TA Manual poses a
hypothetical situation in which portions of a new facility are
constructed inaccessibly, and warns that not just the owner, but also
the architect and contractor who designed and constructed those portions
of the facility may be held liable under section 303. U.S. Department of
Justice, Civil Rights Division, Public Access Section, [The Americans
with Disabilities Act Title III Technical Assistance Manual, Covering
Public Accommodations and Commercial Facilities]{.underline} §
III-5.1000 at 45-46 (November 1993) (Exh. 62).[^6] In sum, there is
simply no basis for DIA\'s claim that the statute and the Department of
Justice\'s interpretation of it fail to provide adequate notice of
either what conduct is prohibited, or who may be held liable.

**D. DIA\'s Various Other Objections to the United States\' Reading of
Section 303 are Equally Baseless.**

DIA also advances a hodgepodge of mistaken and irrelevant legal
arguments, several of which appear in DIA\'s response to the United
States\' Statement of Undisputed Facts. For instance, DIA responds to
facts relating to its control over the design and construction of new
Days Inn hotels by arguing that although it had control over some aspect
of the design and construction of the hotel, DIA failed to exercise that
control.[^7] DIA then contends that because it failed to exercise its
authority, that element of its control over the design and construction
of the Willows Days Inn contributes nothing to establishing its
liability. DIA\'s Opposition at 3-5. That DIA failed to exercise its
authority, however, does not relieve it of responsibility. When DIA
reserved to itself control over the design and construction of new Days
Inn hotels, including the Willows Days Inn, DIA also acquired the
responsibility to comply with the ADA\'s requirements for new
construction. *See* U.S. Opposition at 21-23. And because section 303
defines illegal discrimination to include the [failure]{.underline} to
design and construct new facilities to be accessible to individuals with
disabilities, 42 U.S.C. § 12183(a)(1), it is precisely DIA\'s failure to
act --- its failure to exercise the authority it had, to make new Days
Inn hotels accessible to individuals with disabilities --- that is the
source of DIA\'s liability. It is no defense for DIA to argue that by
failing to act, it is not liable. Put differently, once DIA inserted
itself into the process of designing and constructing new Days Inn
hotels, it inserted itself into the group of parties responsible for
designing and constructing those hotels to be accessible to individuals
with disabilities. When it failed to act to correct ADA violations at
new Days Inn hotels, DIA violated section 303.[^8]

Similarly, DIA responds to the existence of ADA violations at the
Willows Days Inn and the other newly constructed Days Inn hotels by
pointing out that for several of the ADA violations, the feature or
element of the hotel in question also violates some provision of the
Days Inn Planning and Design Standards Manual. *See, e.g.*, DIA Fact
Response ¶¶ 85.c, d, e, f, h, i, j, 87.a, b, c, d, f. While DIA\'s
response does not in any way contradict the United States\' contention
that the feature or element of the hotel in question fails to comply
with the Standards, it does establish that DIA not only failed to act to
comply with the ADA, but did not even enforce its own "barrier-free"
requirements. *See* U.S. Facts ¶ 174.

Another of DIA\'s responses to the undisputed facts is to contend that
although DIA does prepare conceptual site plans, architectural
renderings, prototype drawings, and other similar plans and drawings,
DIA does not prepare final construction drawings for hotels, and that
the materials it does prepare cannot be used by themselves to construct
any facility. *See, e.g.,* DIA Fact Response ¶¶ 49.b, c. Implicit in
DIA\'s response is the suggestion that to "design" a facility, one must
prepare the final construction drawings for the facility. DIA\'s own
architectural expert testified, however, that the process of designing a
building does not include only the preparation of final construction
drawings. He identified several earlier stages in the process --- stages
which identify and resolve various design issues --- and testified that
each of these stages is a necessary part of designing a building. Kiewel
Dep., Exh. 21, at 219-23. Indeed, he specifically testified that many of
the design services provided by DIA, including preparation of conceptual
site plans, issuance of the PDSM, and preparation of prototype drawings,
were typical of the early and middle stages of designing a building
(stages commonly known as schematic design and design development).
[Id]{.underline}. at 228-39. There is thus no basis for DIA\'s
suggestion that the only activity that constitutes "design" is the
preparation of final construction drawings.[^9]

DIA again misrepresents deposition testimony when it argues that
architects and contractors need not be held liable under the ADA to
ensure that they will design and construct accessible facilities,
because they have independent professional oblige-tions to comply with
the law. DIA\'s Opposition at 15. The only support DIA offers for this
position is the deposition testimony of the United States\' expert, Mr.
Hecker. Mr. Hecker specifically testified, however, that he did not know
if failing to comply with applicable laws would cause an architect to
lose his or her license. Hecker Dep., Exh. 15, at 39.[^10] Indeed, as
DIA\'s own expert testified, state codes of professional conduct
generally require only that architects refrain from designing facilities
which [both]{.underline} violate applicable laws [and]{.underline}
materially affect public safety. Kiewel Dep., Exh. 21, at 121-25.
Accordingly, Mr. Kiewel acknowledged that an architect might well be
able to design a facility that does not comply with the ADA without
violating the architect\'s code of professional responsibility.
[Id]{.underline}. at 121-25, 144.[^11]

Finally, DIA fails satisfactorily to explain why Congress included the
term "design" in section 303 if Congress did not intend for section 303
to apply to entities that design new facilities (even if those entities
do not own, operate, or lease the facilities in question). *See* U.S.
Memorandum at 25-26. DIA\'s only response is to point out that, in
issuing the regulation to implement title III of the ADA, the Department
of Justice relied on the presence of the term "design" to include, in
the section of the regulation dealing with the effective date of section
303, a provision regarding applications for building permits. DIA\'s
Opposition at 16-17. While DIA\'s account of why that provision was
included in the regulation is correct, it is irrelevant. The various
implications of the use of the term "design" are not mutually exclusive:
that Congress\' use of the term "design" had implications for
determining when the Act takes effect in no way suggests that that term
does not also have implications for who the Act covers.

**E. DIA has Engaged in a Pattern or Practice of Illegal
Discrimination**

In addition to violating section 303 of the ADA with respect to the
Willows Days Inn in particular, the undisputed facts further show that
DIA has repeatedly participated in the design and construction of
inaccessible Days Inn hotels. *See* U.S. Memorandum at 6-8, 11-14. DIA
responds in two ways: first, DIA posits, without citing any authority,
that the United States has failed to carry its burden to establish that
DIA has engaged in a pattern or practice of illegal discrimination.
DIA\'s Opposition at 4, 6. Second, DIA misrepresents the facts and
testimony relating to its involvement in the design and construction of
three other new Days Inn hotels. DIA\'s Opposition at 5-6.

In order to establish that DIA's conduct constitutes a pattern or
practice of discrimination, the United States must prove

> more than the mere occurrence of isolated or "accidental" or sporadic
> discriminatory acts. It ha\[s\] to establish by a preponderance of the
> evidence that . . . discrimination \[is\] the company's standard
> operating procedure\[,\] the regular rather than the unusual practice.

[International Bhd. Teamsters v. United States]{.underline}, 431 U.S.
324, 336 (1977). Thus, the United States is not required to offer
evidence with respect to each particular example of discrimination that
is part of the pattern or practice of illegal conduct; rather its burden
is to establish that a pattern or practice existed. [Id]{.underline}. at
360. *See also* [Craik v. Minnesota State Univ. Bd.]{.underline}, 731
F.2d 465, 469-70 (8th Cir. 1984) (in addition to evidence relating to
specific instances of discrimination, government in pattern or practice
case will typically adduce more general evidence relating to defendant's
standard policies or practices).[^12] And while the evidence must
establish that the conduct at issue was the defendant\'s standard policy
or practice, there is no minimum number of examples of that conduct that
must be provided. Indeed, if a single example can be shown to be typical
of the defendant\'s conduct, it suffices to establish the pattern or
practice. *See* [Johnson v. Hale]{.underline}, 13 F.3d 1351, 1354 (9th
Cir. 1994) (defendant's single statement that she would not rent to the
black plaintiffs because of race "itself confesses a pattern of
discrimination"); [United States v. West Peachtree Tenth
Corp.]{.underline}, 437 F.2d 221, 227 (5th Cir. 1971) (holding that the
number of individual acts of discrimination is not determinative, and
that no mathematical formula is workable; rather, "\[e\]ach case must
turn on its own facts"); [United States v. Real Estate Devel.
Corp.]{.underline}, 347 F. Supp. 776, 783 (N.D. Miss. 1972) ("No minimum
number of incidents is required . . . .").

The undisputed facts establish that DIA\'s standard policy or practice
is to enter into license agreements that give it extensive control over
the design and construction of all new Days Inn hotels, and to involve
itself in various ways in the design and construction of individual
facilities (including things like visiting sites; recommending
architects and contractors; assisting with construction financing;
providing design services like conceptual site plans, architectural
renderings, or prototype drawings; reviewing plans for compliance with
DIA\'s design standards (as expressed in the PDSM) and requiring changes
to those plans; monitoring the progress of construction; and inspecting
completed facilities). *See* U.S. Memorandum at 11-14. DIA\'s control
over and participation in the design and construction of the Willows
Days Inn is thoroughly consistent with this pattern. *See* U.S.
Memorandum at 8-11. And the undisputed facts show that the Willows Days
Inn fails to comply with the Standards for Accessible Design in numerous
respects, that numerous other new Days Inn hotels fail to comply with
the Standards, and that the violations of the Standards at the Willows
Days Inn are typical of violations found at other new Days Inn hotels.
*See* U.S. Memorandum at 2-8. Indeed, DIA has come forward with no
evidence to suggest that [any]{.underline} new Days Inn hotel complies
with the Standards. In sum, the United States has clearly carried its
burden, and has established that DIA has engaged in a pattern or
practice of illegal discrimination.[^13]

DIA\'s only attempt to dispute the facts establishing its pattern of
illegal conduct is to argue --- as it did with respect to Mr. Iyer, the
architect for the Willows Days Inn (*see supra* Part B., at 5) --- that
the architects who designed three other new Days Inn hotels did not rely
on the Days Inn Planning and Design Standards Manual for guidance in
complying with the ADA\'s accessibility requirements. DIA\'s Opposition
at 5-6. DIA again misrepresents the record.

The facts relating to the three hotels discussed by DIA show that DIA\'s
involvement in the design and construction of those hotels was at least
as extensive as it was for the Willows Days Inn. For instance, the plans
for the new Days Inn hotel in Hazard, Kentucky, had originally been used
to build a new Days Inn hotel in Indiana, and were sold to Wilgus
Napier, the owner of the Hazard hotel, by a DIA franchise broker.
Deposition of Wilgus Napier ("Napier Dep."), Exh. 68, at 31-33. Mr.
Napier and his architect, Douglas Kidd, made minor changes to those
plans, and used them to build Days Inn hotels in Berea, Kentucky, and
Mount Vernon, Kentucky, before using them to build the hotel in Hazard.
[Id]{.underline}. at 38-39, 47-48. *See also* Deposition of J. Douglas
Kidd, Exh. 69, at 29-30, 36-39, 42-45. Thus, the plans for the Hazard
Days Inn were not only sold by a DIA broker, but, by the time they were
used to build the Hazard hotel, had been reviewed and approved by DIA,
in connection with the Berea Days Inn. Napier Dep., Exh. 68, at 36-38.
Given that before they built the Hazard Days Inn Mr. Napier and Mr. Kidd
had designed and constructed two other new Days Inn hotels, both of
which were accepted into the Days Inn system, it is not surprising that
Mr. Kidd felt no need to refer to the Days Inn PDSM in designing the
Hazard hotel.

Similarly, DIA had extensive involvement in the design of the new Days
Inn hotel in Wall, South Dakota. David Baumann, the architect who
prepared plans for that hotel, had previously prepared plans for two
other new Days Inn hotels, in West Fargo, North Dakota, and Oacoma,
South Dakota. Deposition of David Baumann ("Baumann Dep."), Exh. 67, at
19, 21, 28. In the course of doing that work, Mr. Baumann had come to
know the DIA franchise salesman in the region, and that salesman
recommended Mr. Baumann to the owners of the Wall Days Inn, and arranged
an introductory meeting between himself, Mr. Baumann, and the owners.
Baumann Dep., Exh. 67, at 48-51, 57-60. Mr. Baumann incorporated several
elements of the designs for the West Fargo and Oacoma Days Inns into the
plans for the Wall hotel. [Id]{.underline}. at 93-94, 207-08. In
addition, he had a copy of the PDSM, and referred to it frequently when
designing the Wall Days Inn, for "all kinds of standards," including
room sizes and layouts, door sizes, bathroom sizes, furniture and
materials required by DIA, corridors, and other items. [Id]{.underline}.
at 98-100.[^14]

In the end, even if Mr. Iyer and the architects for the other three Days
Inn hotels identified by DIA had never received the PDSM, each of those
hotels was still required by the terms of the license agreement for that
hotel to comply with the design requirements of the PDSM. The plans for
each hotel were reviewed by DIA (or were subject to review by DIA) for
compliance with those requirements. *See* DIA\'s Fact Response ¶ 73.
Thus, even if there were a genuine dispute on the question of whether
those architects had received the PDSM, or what use they had made of it,
summary judgment would still be appropriate. DIA\'s control over, and
participation in, the design and construction of those hotels (and other
new Days Inn hotels) was not limited to issuance of the PDSM. The
undisputed facts demonstrate that DIA\'s control and participation were
far more extensive than that, so that the role of the PDSM is not
dispositive, and its absence from any particular case in no way
jeopardizes the United States\' showing that DIA has engaged in a
pattern or practice of discrimination.

**F. DIA and HFS are Effectively the Same Entity**.

The undisputed facts show that DIA and HFS are so closely intertwined as
to be effectively the same entity. *See* U.S. Facts ¶¶ 9-11, 162-70. DIA
is a wholly owned subsidiary of HFS; HFS issues a consolidated annual
report for itself and DIA, containing consolidated financial statements,
and the two companies file a consolidated tax return. [Id]{.underline}.
¶¶ 11, 165-67. They have the same principal place of business, and share
office space. [Id]{.underline}. ¶ 164. Perhaps most importantly, DIA has
no employees of its own; all DIA functions are carried out by officers
or employees of HFS. [Id]{.underline}. ¶ 168. Neither DIA nor HFS
disputes any of these facts. Every action DIA takes, from soliciting
potential licensees, to reviewing plans for new hotels, to inspecting
the completed facilities, is undertaken by an employee of HFS, at the
direction of HFS\' management. HFS owns and controls DIA and the Days
Inn system, and is every bit as responsible as DIA for the violations of
the ADA at new Days Inn hotels.

**CONCLUSION**

For the reasons stated, the United States respectfully requests that the
Court grant its motion for summary judgment.

> 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
>
> THOMAS M. CONTOIS
>
> JEANINE M. WORDEN
>
> ROBERTA STINAR KIRKENDALL
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-0196

Debora Luther

Assistant United States Attorney

Eastern District of California

555 Capitol Mall

Suite 1550

Sacramento, California 95814

Dated: October 6, 1997

[^1]: ^?^The [Ellerbe]{.underline} court added that even if it found
    that the language of sections 302 and 303 were ambiguous, it would
    reach the same result, because it would defer to the Department of
    Justice\'s interpretation of the statute. [Ellerbe]{.underline},
    slip op. at 11 n.4. *See also* U.S. Opposition at 10-11.

[^2]: ^?^In opposing a motion for summary judgment, the non-moving party
    must come forward with specific facts showing that there is a
    genuine issue for trial. Fed. R. Civ. P. 56(e); [Matsushita Elec.
    Indus. Co. v. Zenith Radio Corp.]{.underline}, 475 U.S. 574, 587
    (1986); [Brinson v. Linda Rose Joint Venture]{.underline}, 53 F.3d
    1044, 1047-48 (9th Cir. 1995).

[^3]: ^?^DIA asserts that the findings of the United States\' expert,
    Mr. William Hecker, are not admissible. Response of Days Inns of
    America, Inc. and HFS Incorporated to United States\' Statement of
    Facts ("DIA Fact Response") ¶¶ 85, 86-90. The assertion is baseless.
    The United States provided Mr. Hecker\'s expert report to DIA in
    advance of Mr. Hecker\'s deposition, and DIA questioned Mr. Hecker
    about those reports at length. Mr. Hecker testified, under oath,
    about the methods he used to survey the hotels in question, to
    determine how accessible (or inaccessible) they were to individuals
    with disabilities. Deposition of William Hecker (\"Hecker Dep.\"),
    Exh. 15, at 125-33. He further testified, under oath, that the
    reports provided to DIA --- the reports provided as Exhibits 7, 8,
    and 9 to the United States\' Statement of Undisputed Facts ---
    contained the findings of his surveys of each of the Days Inn hotels
    in question, and his opinions about the degree to which each hotel
    was or was not accessible to individuals with disabilities.
    [Id]{.underline}. at 173-78. Nonetheless, out of an abundance of
    caution, to resolve any remaining question about the admissibility
    of Mr. Hecker\'s findings, or his expert reports, the United States
    has provided Mr. Hecker\'s declaration that the reports do, in fact,
    contain his findings and opinions. *See* Declaration of Mr. William
    Hecker, AIA (\"Hecker Dec.\"), Exh. 66.

[^4]: ^?^In response to DIA\'s argument that only those parties who own,
    operate, or lease the facility in question may be held liable for
    violations of section 303, the United States has argued in the
    alternative that DIA operates the Willows Days Inn and other Days
    Inn hotels. *See* U.S. Memorandum at 32-44. In a desperate attempt
    to stave off summary judgment on this ground as well, DIA has
    confected two affidavits purporting to show that DIA\'s control over
    the daily operations of hotels in its system is insufficient to
    render it liable under DIA\'s reading of the statute. One of the
    affidavits is from Mr. William Keeble, DIA\'s Rule 30(b)(6)
    designee, and the other is from Dilip Patel, one of two owners of
    the Willows Days Inn. Neither of the affidavits, however, is
    admissible or competent to create a genuine issue of material fact.
    The United States, by separate filings, is moving to strike both
    affidavits. As more fully set out in those filings, the affidavits,
    among other things, are not based on personal knowledge, offer
    inadmissible opinion and hearsay testimony, are conclusory, and
    contradict the witnesses\' sworn deposition testimony. Perhaps most
    troubling is that Mr. Patel\'s affidavit appears to have been
    obtained in exchange for DIA\'s withdrawal of its indemnification
    claim against Mr. Patel.

[^5]: ^?^DIA also complains that Ms. Savage changed certain portions of
    her deposition transcript, and did so in an "unnotarized, unsworn
    ‛errata sheet.\'" DIA\'s Opposition at 21 n.7. Ms. Savage\'s review
    of her deposition testimony, however, fully comports with the
    requirements of Fed. R. Civ. P. 30(e), which provides that the
    deponent has 30 days after the deposition "to review the transcript
    . . . and, if there are changes in form or substance, to sign a
    statement reciting such changes and the reasons given by the
    deponent for making them." Fed. R. Civ. P. 30(e). Ms. Savage
    returned the errata sheet provided by the court reporter within 30
    days of her deposition, and the rule does not require that it be
    notarized or sworn. Moreover, as noted previously, the changed
    portions of Ms. Savage\'s testimony were consistent with other
    portions of her testimony, and with other discovery responses
    provided by the United States. *See* U.S. Opposition at 28-29 n.17.

[^6]: ^?^The Technical Assistance Manual is issued by the Department
    pursuant to statutory mandate, *see* 42 U.S.C. § 12206(a), (c), and
    is thus, along with the issuance of the title III implementing
    regulation, one of the mechanisms by which the Attorney General is
    to "flesh out the statutory framework" of title III. [Paralyzed
    Veterans of America v. D.C. Arena L.P.]{.underline}, 117 F.3d 579,
    585 (D.C. Cir. 1997). Indeed, the [Pinnock]{.underline} court relied
    in part on the Department\'s Technical Assistance Manual for title
    III to hold that the statute was not void for vagueness.
    [Pinnock]{.underline}, 844 F. Supp. at 581. In
    [Pinnock]{.underline}, a defendant charged with violating section
    302 of the ADA challenged title III of the statute as being
    unconstitutionally vague. The court rejected this challenge,
    concluding that "the terms of title III are marked by well-reasoned
    flexibility and breadth," and that "\[w\]hen considered in
    conjunction with the Department of Justice guidelines, these terms
    are not unconstitutionally vague." [Id]{.underline}.

[^7]: ^?^For instance, in response to the facts concerning the
    requirement that the Patels submit their plans to DIA, and secure
    DIA\'s approval of those plans, DIA contends that changes were made
    to the plans, during construction, and that the Patels did not
    inform DIA of these changes, or seek DIA\'s approval of them. DIA
    Fact Response ¶ 63.e. DIA does not dispute that it had the
    authority, under the terms of its license agreement with the Patels,
    to require them to secure DIA\'s approval for such changes.

    DIA makes similar arguments about its control over the design and
    construction of other new Days Inn hotels. For instance, with
    respect to the new Days Inn hotel in Wall, South Dakota, DIA argues
    that it reviewed only preliminary plans for the hotel, that its
    comments on those plans were not incorporated into the design of the
    hotel, and that it was never provided with final plans for the
    hotel. DIA Opposition at 5. DIA does not dispute, however, that it
    had the authority, under the terms of its license agreement, to
    require the Wall licensees to submit final plans for the hotel, and
    to make any changes specified by DIA\'s architect. The reason DIA
    never received final plans for the Wall hotel is that it never asked
    for them. Keeble Dep., Exh. 14, at 904-05; Baumann Dep., Exh. 67, at
    107, 221.

[^8]: ^?^Similarly, it is no defense for DIA to argue that it has left
    the matter of complying with the ADA to its licensees. The duty to
    comply with the ADA, as with other federal civil rights statutes, is
    not delegable. *See* U.S. Opposition at 25-28.

[^9]: ^?^In addition, Mr. Kiewel testified that no one person designs an
    entire facility; rather, the design team may include not just the
    architect of record, but also various engineers and other designers.
    [Id]{.underline}. at 40-44. He added that even though none of these
    individuals, including the architect of record, designs the entire
    facility, each of them nonetheless "designs" the facility.
    [Id]{.underline}. at 127-29. (Or, as the government would put it,
    each of them is "involved in" the design of the facility.)
    Similarly, Mr. Kiewel testified that numerous parties, including the
    owner, the general contractor, various subcontractors, and others,
    typically are involved in the construction of a new facility --- as
    he put it, they are "participating in the construction" --- and that
    each of them was "constructing" the facility. [Id]{.underline}. at
    216-19. There is thus no basis for DIA\'s suggestions that because
    some architect "designed" the hotel, and some contractor
    "constructed" it, DIA could not also have "designed" and
    "constructed" the hotel.

[^10]: ^?^Further, the question was objected to as calling for a legal
    conclusion, and Mr. Hecker was instructed to answer the question
    only insofar as he could answer it as an architectural matter.
    Hecker Dep., Exh. 15, at 39.

[^11]: ^?^DIA also errs in suggesting that if an architect or contractor
    fails to comply with the ADA, an owner will always have recourse
    under traditional tort or contract theories. DIA\'s Opposition at
    15. If the owner has instructed the architect and contractor to
    design and build a facility that does not comply with the ADA, it is
    unlikely that the owner would have any action against parties that
    have followed his instructions.

[^12]: ^?^Because various civil rights statutes all employ the same
    "pattern or practice" language, the courts have held that the same
    standard of proof applies under each of the statutes. *See, e.g.*,
    [United States v. DiMucci]{.underline}, 879 F.2d 1488, 1497 n. 11
    (7th Cir. 1989)(in Fair Housing Act case court noted that phrase
    "pattern or practice" appears in several federal civil rights
    statutes, and is interpreted consistently from statute to statute,
    citing [Teamsters]{.underline}, 431 U.S. at 336 n. 16); [United
    States v. Balistrieri]{.underline}, 981 F.2d 916, 929 n.2 (7th Cir.
    1992) (same).

[^13]: ^?^Similarly, assuming for the sake of argument that DIA\'s
    reading of the statute were correct --- that only those who own,
    lease, or operate the facility are responsible for its design and
    construction --- the undisputed facts also show that DIA\'s control
    over the operations of the Willows Days Inn is typical of its
    control over the operations of all of the hotels in its system.
    *See* U.S. Memorandum at 32-44.

[^14]: ^?^Although the transcript of his deposition is not yet
    available, Brian Pape, the architect for the Champaign Days Inn,
    testified that he had a copy of the PDSM, and that he referred to it
    for a general review of DIA\'s design standards. He further
    testified that he had also designed other Days Inn hotels, and that
    after DIA reviewed the plans for the Champaign Days Inn, he
    discussed those plans with DIA architect Richard Tischler. Once Mr.
    Pape\'s transcript becomes available, the United States will provide
    it to the court.