**UNITED STATES DISTRICT COURT**

**FOR THE CENTRAL DISTRICT OF ILLINOIS**

**DANVILLE/URBANA DIVISION**

**UNITED STATES OF AMERICA, )**

> **)**
>
> **Plaintiff, )**
>
> **)**
>
> **)**

**v. ) Case No. 96-2028**

> **)**
>
> **)**

**DAYS INNS OF AMERICA, INC., *et al*. )**

> **)**
>
> **Defendants. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)**

**PLAINTIFF UNITED STATES' MEMORANDUM**

**IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT**

**(ORAL ARGUMENT REQUESTED)**

ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS,

Acting Deputy Chief

ROBERTA S. KIRKENDALL

JEANINE M. WORDEN

MARGARITA M. PRIETO

THOMAS M. CONTOIS

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0986

TABLE OF CONTENTS

Table of Authorities iii

Introduction 1

Background 2

A. Section 303 of the ADA requires all newly constructed public
accommodations and commercial facilities to be readily accessible to,
and usable by, persons with disabilities. 2

B. The Champaign Days Inn and thirteen other newly constructed Days Inn
are not

accessible to or usable by individuals with disabilities. 4

C. DIA and HFS were extensively involved in, and had significant control
over, the design

and construction of the Champaign Days Inn, which is typical of its
involvement in and

control over the design and construction of all new Days Inn hotels. 4

Argument 6

A. DIA has violated section 303 of the ADA by participating in the
design and construction

of hotels that are not accessible to persons with disabilities. 6

B. The coverage of section 303 is much broader than simply design and
construction by

owners, operators, lessors, and lessees. 8

1\. [Section 303 is broader than section 302, since it covers more types
of facilities]{.underline}. 9

2\. [The use of the word "design" in section 303 makes clear that
section 303 is]{.underline}

> [intended to apply to parties not covered by section 302]{.underline}.
> 13

3.  [Limiting the coverage of section 303 to the parties identified in
    section 302 would]{.underline}

> [frustrate Congress' purpose in adopting the ADA.]{.underline} 13

4\. [Other courts interpreting section 303 have agreed with the United
States']{.underline}

> [position]{.underline}. 17

C. Even if section 303 were limited to owners, operators, lessors, and
lessees, DIA is still

liable for violating the ADA. 20

1\. [The "Days Inn System" and the "System Standards."]{.underline} 20

2\. [Enforcement of the System Standards: the Quality Assurance
program]{.underline}. 21

3.  [Other means by which DIA controls or directs the functioning of the
    hotels in its]{.underline}

> [system.]{.underline} 22

D. The Court should assess civil penalties against DIA and HFS. 23

Conclusion 25

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

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

[Carparts Distributing Ctr., Inc. v. Automotive Wholesaler\'s
Association]{.underline}, 37 F.3d 12

(1st Cir. 1994) 14

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

[Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984) 19

[Federal Election Commission v. Furgatch]{.underline}, 869 F.2d 1256
(9th Cir. 1989). 23

[Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994) 14

[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 1175
(S.D. Fla. 1997) 18

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993), [cert.
denied]{.underline} [sub]{.underline} [nom]{.underline}

> [Hoskins v. Kinney]{.underline}, 114 S. Ct. 1545 (1994) 14

[Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp.]{.underline}, 475 U.S. 574 (1986) 2

[Moskal v. United States]{.underline}, 498 U.S. 103 (1990) 12, 19

[Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers,
P.C.]{.underline},

945 F. Supp. 1 (D.D.C. 1996) 17-18

[Peyton v. Rowe]{.underline}, 391 U.S. 54 (1968) 13

[Rettig v. Pension Benefit Guaranty Corp.]{.underline}, 744 F.2d 133
(D.C. Cir. 1984) 14

[Tcherepnin v. Knight]{.underline}, 389 U.S. 332 (1967) 13

[Tull v. United States]{.underline}, 481 U.S. 412 (1987) 23

[United States v. Balistrieri]{.underline}, 981 F.2d 916 (7th Cir. 1992)
23

[United States v. Danube Carpet Mills, Inc.]{.underline}, 737 F.2d 988
(11th Cir. 1984) 24

United States v. Ellerbe Becket, Inc., \_\_\_ F. Supp. \_\_\_\_, 1997 WL
610275

(D. Minn. Oct. 2, 1997) 18-19

[United States v. ITT Continental Baking Co.]{.underline}, 420 U.S. 223
(1975) 23

[United States v. Reader\'s Digest Association, Inc.]{.underline}, 662
F.2d 955 (3d Cir. 1981) 23-24

**FEDERAL STATUTES**

42 U.S.C. § 3604(f)(3)(C) 16-17

42 U.S.C. § 12101(a)(5) 3

42 U.S.C. § 12101(b)(1) 2

42 U.S.C. § 12101(b)(4) 2

42 U.S.C. §§ 12111 through 12117 10

42 U.S.C. §§ 12181 through 12189 1

42 U.S.C. § 12181(2) 10

42 U.S.C. § 12181(7) 9

42 U.S.C. §§ 12181(7)(A) 10

42 U.S.C. § 12181(9) 3

42 U.S.C. § 12182(a) and (b) 9

42 U.S.C. § 12182(b)(1)(A)(ii) 9

42 U.S.C. § 12182(b)(2)(A) 9

42 U.S.C. § 12182(b)(2)(A)(iv) 3, 15

42 U.S.C. § 12183(a) 1, 3, 9

42 U.S.C. § 12183(a)(1) 6

42 U.S.C. § 12183(a)(2) 12

42 U.S.C. § 12186(b) 3

42 U.S.C. § 12188(b)(2)(C) 23

42 U.S.C. § 12188(b)(5) 24

**FEDERAL REGULATIONS**

28 C.F.R. Part 36, Appendix A 3

28 C.F.R. § 36.401 4

**LEGISLATIVE HISTORY**

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. (1990) 10, 11, 19

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. (1990) 3, 12, 15

**FEDERAL RULES**

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

**MISCELLANEOUS**

[Blacks Law Dictionary]{.underline} (5th ed. 1979) 20

Robert G. Schwemm, [Housing Discrimination Law and
Litigation]{.underline} § 12.3(1)

(1990 and Supp. 1995) 16

[Websters II New Riverside University Dictionary]{.underline} (1988) 20

# INTRODUCTION

The United States filed this suit against Days Inns of America, Inc.
("DIA") and its parent company, HFS Incorporated ("HFS"), and the owners
and architect of a newly constructed Days Inn hotel in Champaign,
Illinois, 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
Champaign Days Inn to be inaccessible to individuals with disabilities,
in violation of § 303(a) of the ADA, 42 U.S.C. § 12183(a).[^1] The
United States further alleges that the acts or omissions of DIA and HFS
with respect to the Champaign 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 discriminatory conduct in violation
of title III of the ADA.

DIA and HFS do not deny that the Champaign Days Inn and at least 13
other new Days Inn hotels across the nation are not accessible to
individuals with disabilities, nor do they dispute the actions they did
or did not take with respect to the design and construction of these
hotels. Yet, DIA and HFS argue that the Court should excuse them from
liability under § 303. They suggest that Congress intended to limit ADA
liability to small businesses that own local hotel franchises --- such
as Panchal & Patel, Inc., which owns the Champaign Days Inn --- and that
Congress did not extend ADA liability to hotel franchisors such as DIA
and HFS, which control and participate in the design and construction of
new hotels nationwide.

Neither the ADA nor its legislative history suggests that § 303
liability should be limited in the way that DIA and HFS suggest. The
undisputed facts, as shown in the United States' Statement of Undisputed
Facts, prove that DIA and HFS participated in, and exercised extensive
control over, the design and construction of its newly constructed
hotels, including the Champaign Days Inn. Thus, DIA and HFS engaged in a
pattern or practice of violating § 303 by discriminating against
individuals with disabilities, and they should be held liable for it.
Accordingly, the United States asks that the Court enter summary
judgment against DIA and HFS under Rule 56(c) of the Federal Rules of
Civil Procedure,[^2] and award injunctive relief and civil penalties
against both DIA and HFS.

# II. BACKGROUND

A. Section 303 of the ADA requires all newly constructed public
accommodations and commercial facilities to be readily accessible to,
and usable by, persons with disabilities.

The ADA is Congress\' most comprehensive civil rights legislation since
the Civil Rights Act of 1964. It provides \"a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.\" 42 U.S.C. § 12101(b)(1). To that end,
Congress "invoke\[d\] 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 broad: it prohibits discrimination in employment, government
programs and services, transportation, telecommunications, and the goods
and services offered to the public by private businesses.

Section 303 of the ADA, the provision governing new construction, is
particularly broad. Congress found that architectural barriers were a
form of discrimination that persons with disabilities \"continually
encounter\[ed\].\" 42 U.S.C. § 12101(a)(5). To remove 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\" persons with disabilities. 42 U.S.C. §
12183(a). Congress intended all persons who design and construct new
facilities to eliminate architectural barriers. 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,[^3] [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 set by the Attorney General. 42 U.S.C. §§
12183(a), 12186(b). Those Standards for Accessible Design ("Standards")
are incorporated into the Department of Justice\'s regulation
implementing title III of the ADA, 28 C.F.R. Part 36, Appendix A. The
Standards set architectural requirements for newly constructed hotels
that apply to all areas of the facility, from parking areas, exterior
walkways, and entrances to lobbies, interior stairways, corridors, and
guest rooms.

**B. The Champaign Days Inn and thirteen other newly constructed Days
Inns are not accessible to or usable by individuals with disabilities.**

It is undisputed that the Champaign Days Inn,[^4] and 13 other newly
constructed Days Inns, are not readily accessible to or usable by
individuals with disabilities. [See]{.underline} Facts ¶¶ 67-74;
Declaration of William Hecker, A.I.A., Exh. 43; Hecker Report, Exh.
17.[^5] The hotels, including the Champaign facility, were designed and
constructed with numerous violations of the ADA's Standards occurring in
every area of the facilities.[^6] [Id]{.underline}.

C.DIA and HFS were extensively involved in, and had significant control
over, the design and construction of the Champaign Days Inn, which is
typical of its involvement in and control over the design and
construction of all new Days Inn hotels.

As is set out more fully in the United States' Statement of Undisputed
Facts, DIA had extensive control over, and involvement in, the design
and construction of the Champaign Days Inn, by means of its license
agreement (the "Champaign L.A."), Facts ¶¶ 30-31; its System Standards,
which include hundreds of requirements for the design and construction
of Days Inn hotels, Facts ¶¶ 32-38; its review and approval of detail
specifications and the architectural plans for the Champaign Days Inn,
including several substantive changes to the drawings that incorporated,
among other things, accessibility related changes and changes to reflect
"industry standards," Facts ¶¶ 50-61; its monitoring of construction
progress at the Champaign Days Inn, Facts ¶¶ 62-63; and its tri-annual
inspections of the Champaign facility to ensure compliance with DIA's
System Standards, Facts ¶¶ 66, 95-96, 103.

DIA's involvement in, and control over, the design and construction of
the Champaign Days Inn, is by no means unique to that facility. To the
contrary, the undisputed facts show that DIA has the same control over,
and involvement in, the design and construction of all new Days Inns.
DIA uses a standard form of license agreement for all of its licensees.
Facts ¶¶ 20-29.

And while DIA may alter some provisions of the standard agreement in
some cases, many provisions are not negotiable, including the provision
that requires licensees to prepare plans and specifications that comply
with DIA's design standards. Facts ¶ 25.a. DIA's Planning and Design
Standards Manual ("PDSM"), which contains hundreds of System Standards
that all licensees must comply with, Facts ¶ 32, imposes requirements on
all aspects of a hotel's design and construction, and includes prototype
drawings for specific design elements in hotels and for hotels
themselves. Facts ¶ 34-37. Most significantly, DIA's Design &
Construction Department provides significant design and construction
assistance to licensees and architects for new Days Inn hotels,
including, among other things, preparing three-dimensional site plans
for licensees to use to obtain financing and zoning approval, Facts ¶
43.b; visiting sites of new hotels, Facts ¶ 43.a; referring potential
franchisees to architects and contractors, Facts ¶ 43.d-e; providing
technical assistance on design and construction matters, including
accessibility matters, Facts ¶ 43.f; contacting zoning officials for
franchisees, Facts ¶ 43.g; and reviewing specifications and
architectural drawings for compliance with DIA's design standards, model
building codes, safety issues, accessibility issues and industry
standards; Facts ¶¶ 41-42. In sum, DIA has extensive involvement in, and
control over, the design and construction of all new Days Inn hotels,
and it exercises these controls on a regular basis.

**III. ARGUMENT**

**A. DIA has violated § 303 of the ADA by participating in the design
and construction of hotels that are not accessible to persons with
disabilities.**

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" to eliminate discrimination
against persons with disabilities: any party who is involved in, the
design and construction of an inaccessible facility is involved in a
discriminatory activity, and violates § 303.

Liability under § 303 depends on the facts of each case. In particular,
it depends on: 1) whether the facility complies with the ADA Standards;
and 2) whether the party participated in the design and construction of
some portion of the facility that fails to comply with the ADA's
Standards. Thus, while all parties who are involved in the design and
construction of a facility are responsible for complying with § 303, the
scope of a party's liability under § 303 is nonetheless limited because
it is commensurate with the scope of that party's involvement in the
design and construction of inaccessible portions of the facility. For
example, a plumbing subcontractor would only be liable for violations
occurring within the scope of its involvement ([e.g.]{.underline},
violations in toilet rooms) \-- **not** for violations in the parking
lot.[^7]

> The undisputed facts show numerous violations of the Standards at the
> Champaign Days Inn and at several other new Days Inns. Facts ¶ 67-74.
> They also show that DIA has participated extensively in the design and
> construction of these hotels. Facts ¶ 39-66. As with other newly
> constructed hotels in its chain, DIA's involvement in the design and
> construction of the Champaign Days Inn began early, and extended to
> every aspect of the project. DIA's Design and Construction Department
> reviewed and approved specifications for the facility and specifically
> requested building plans. Facts ¶ 52. DIA reviewed and approved the
> plans sent by the architect, and made several changes to the plans ---
> including a change for accessibility. Facts ¶ 53-61. The DIA Design &
> Construction Manager who reviewed the plans spoke directly with the
> architect about the proposed changes to the plans. Facts ¶ 57. The
> architect for the Champaign project, testified that he discussed the
> changes with the owner, Mohan Panchal, and did in fact make changes
> that DIA indicated, including the accessibility-related change to the
> parking area. Facts ¶¶ 58, 61. The architect had referred to the PDSM
> during the course of the Champaign project. Facts ¶ 50. And, the
> license agreement between P & P and DIA set dates for the beginning
> and completion of construction, required P & P to prepare plans for
> the hotel that conformed to the PDSM, and required P & P to obtain
> DIA's approval of their plans for the hotel, which they did. Facts ¶
> 31.a. DIA also monitored the progress of the construction, even going
> so far as to send a camera to the licensee for snapshots of the
> hotel's construction, and inspected the hotel upon its completion.[^8]
> Facts ¶¶ 62-63.

The PDSM itself represents significant involvement by DIA in the design
of the Champaign and other new Days Inn hotels: as DIA's expert
architect put it, the PDSM is "comprehensive." Facts ¶ 34. 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. Facts ¶¶ 35-36. The PDSM sets requirements for all of
the areas of the Champaign Days Inn in which violations of the Standards
occurred. Similarly, the license agreement with P & P (which is typical
of DIA's agreements with other licensees) requires them to submit
architectural drawings and specifications for the hotel. Facts ¶ 25.
Because the scope of DIA's control over and involvement in the design
and construction of the Champaign Days Inn extended to every aspect of
the hotel, the scope of its liability for ADA violations at the
Champaign Days Inn is quite broad: along with the owner and architect
(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 Champaign Days Inn.

B. The coverage of section 303 is much broader than simply design and
construction by owners, operators, lessors, and lessees.

In addition to setting architectural requirements for the design and
construction of new facilities, Title III of the ADA also prohibits a
variety of forms of discrimination in the day-to-day operation of
certain businesses. Thus, in addition to the requirements for new
construction set out in § 303, § 302 of the Act also includes a general
prohibition of discrimination against individuals with disabilities, and
imposes on public accommodations, but [not]{.underline} on commercial
facilities, other non-discrimination obligations with respect to their
day-to-day operations. [See]{.underline}\
42 U.S.C. § 12182(a) and (b).[^9]

> **1. [Section 303 is broader than section 302, since it covers more
> types of\
> facilities.]{.underline}**

Unlike § 302, which applies only to public accommodations, § 303 applies
to two types of facilities: \"public accommodations\" and \"commercial
facilities.\" 42 U.S.C. § 12183(a). The ADA 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]{.underline} 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.

While "public accommodations" has been defined broadly, it is not as
broad as the category of "commercial facilities." That category includes
all facilities intended for non-residential use whose operations affect
commerce. [See]{.underline} 42 U.S.C. § 12181(2).[^10] While this
definition includes many facilities that are also public
accommodations,[^11] it also 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 § 303's coverage is broader than the coverage of § 302, it would
do violence to the statutory scheme to read § 303\'s reference to §
302(a) to mean that only those who have obligations under § 302 ---
[i.e.]{.underline}, owners, lessors, lessees and operators of public
accommodations --- can be held liable for new construction violations
under § 303. Under such a reading, the [only]{.underline} people who
could be held liable for design and construction violations of
[commercial facilities]{.underline} would be those who own, lease, or
operate [public accommodations]{.underline}. For strictly commercial
facilities --- 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 reconciled with § 303\'s explicit
reference to \"commercial facilities\" or with Congress' desire to
ensure 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 \"commercial 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 facilities\" 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 § 302 to § 303 provides further evidence
that Congress intended § 303 to have broader coverage than § 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.[^12] The Committee
clearly understood that § 303 covered a wider universe than § 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, Congress deliberately chose to draft §§ 302 and 303 differently,
and intended them to apply to different kinds of activities, different
categories of facilities, and different parties. Thus, the reading of §
303\'s reference to § 302(a) that is most consistent with legislative
intent is that § 303 refers to § 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
§ 303. This interpretation gives full effect to all of the words in §
303. [See]{.underline} [Moskal v. United States]{.underline}, 498 U.S.
103, 109-10 (1990) (holding that statutes should be interpreted to give
effect to every clause and word of the statute) (quoting [United States
v. Menasche]{.underline}, 348 U.S. 528, 538-39 (1955) (same)).[^13]

> **2. [The use of the word "design" in § 303 makes clear that § 303 is
> intended to apply to parties not covered by § 302.]{.underline}**

By including the word "design" in § 303, Congress made clear that § 303
is not limited 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 liability under § 303. A general exclusion of
design professionals, however, cannot be squared with Congress' use of
the word \"design\" in the text of the statute. Congress could have
written § 303 without using the word \"design,\" addressing itself only
to the end result by simply making it illegal to \"construct\"
inaccessible facilities. By including the design function in the
prohibited conduct, however, Congress deliberately brought within the
Act\'s coverage those entities who design new facilities --- architects,
engineers, interior designers, and all other parties who design
facilities. Limiting § 303 to the owners, operators, lessors, and
lessees named in § 302 would thus nullify a large portion of the
coverage marked out by Congress. Limiting the coverage of § 303 in that
way would significantly limit the ability of § 303 to achieve its
purpose.

> **3. [Limiting the coverage of § 303 to the parties identified in §
> 302 would frustrate Congress\' purpose in adopting the
> ADA.]{.underline}**

In construing statutory language, the Court must look to the statute's
remedial purposes, and construe the statute in a way that will allow it
to achieve those purposes.[^14] Limiting the coverage of § 303 to the
parties identified in § 302 would greatly limit the ability of § 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 held responsible. For instance, if only those who own,
operate, or lease facilities have any responsibility under § 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: under a limiting
construction of § 303, 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.[^15] Such a result is not what Congress intended:
in legislative history, Congress expressly 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.[^16] And Congress chose not 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 goal of § 303 cannot be fully realized unless it is read to cover
all parties who participate in the design and construction of new
facilities. Under this broad construction of\
§ 303, fewer inaccessible facilities will be constructed because
architects will be economically motivated to refuse, because they can be
held liable for violating § 303. And even if an architect were willing
to design an inaccessible facility, any contractor would be economically
motivated to refuse to build it, since the contractor would also be
subject to § 303 liability. 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, if § 303 is construed to cover all
parties involved in design and construction.

Indeed, Congress chose this broad approach to remedy discrimination in
other civil rights statutes. While the language varies from statute to
statute, Congress has not restricted discrimination by only a few
parties; instead, Congress has consistently drafted its legislation to
contain broad prohibitions of discrimination by all parties involved.
Thus, Congress has not limited liability for discrimination to only one
entity, choosing instead to prevent discrimination by all entities
involved in the prohibited act. The most analogous example of this
approach is in the Fair Housing Act, which makes various discriminatory
activities illegal without limiting the parties who may be held
responsible for engaging in those acts. [See]{.underline} Robert G.
Schwemm, [Housing Discrimination Law and Litigation]{.underline} §
12.3(1) at 12-22 (1990 and Supp. 1995) (Fair Housing Act "simply
declare\[s\] 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, § 303 of the ADA mirrors a provision in § 804 of the Fair
Housing Act that identifies an illegal activity --- the design and
construction of inaccessible housing facilities --- and does not
specify, or limit, the parties to be held liable for engaging in that
activity.[^17] In modeling §303 of the ADA on § 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: by defining an illegal
activity without specifying, or limiting, the parties who are liable for
engaging in that activity. Indeed, since Congress "invoked the sweep of
its authority" in enacting the ADA, to establish a "clear and
comprehensive national mandate" to eliminate discrimination against
persons with disabilities, it would be surprising if Congress had chosen
[not]{.underline} to draft § 303 so broadly, but only to limit liability
to a few parties.

> **4. [Other courts interpreting § 303 have agreed with the United
> States\' position.]{.underline}**

To date, three federal courts have considered the scope of § 303. While
the first court concluded that § 303 was limited to parties who own,
lease, or operate facilities, both courts that have since considered the
issue have rejected that conclusion, holding, instead, that § 303
extends to all parties who engage in the design and construction of an
inaccessible facility.

The first case was [Paralyzed Veterans of America v. Ellerbe Becket
Architects & Eng'rs, P.C.]{.underline}, 945 F. Supp. 1 (D.D.C. 1996), in
which the court dismissed § 303 claims against an architectural firm on
the grounds that § 303\'s reference to § 302 limits the parties
responsible for complying with § 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 § 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 § 302 applies
only to owners, operators, and lessors of [public
accommodations]{.underline} and not to commercial facilities, this
analysis leads to the patently incorrect result of eliminating any
meaningful coverage of commercial facilities from § 303.

In addition, the [PVA]{.underline} court erred when it assumed, without
explanation, that the aims of the statute could effectively be achieved
even if owners of new facilities were the only parties responsible for
ADA compliance. [Id]{.underline}. As previously noted, limiting the
scope of § 303 to owners, operators, lessors and lessees would mean that
the aims of § 303 would only be achieved as a result of a multitude of
legal actions to compel retrofitting of facilities designed and
constructed to be inaccessible, a prospect Congress specifically wished
to avoid.

More persuasive are the more recent rulings in [United States v. Ellerbe
Becket, Inc.]{.underline}, \_\_\_ F. Supp. \_\_\_\_, 1997 WL 610275 (D.
Minn. Oct. 2, 1997) (copy provided as Exhibit A to this memorandum), and
[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 1175
(S.D. Fla. 1997). In the [Ellerbe Becket]{.underline} case, 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, arguing (as DIA does here), that architects are not
covered by § 303 because the "plain language" of title III requires that
§ 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.

[Ellerbe]{.underline}, 1997 WL 610275 at \*5. The court denied Ellerbe's
motion to dismiss, holding that Ellerbe could nonetheless be liable
under § 303 even though it did not lease any of the facilities

in question. [Id]{.underline}. at \*4-5, \*7.[^18]

In the [Johanson]{.underline} case, the plaintiff filed suit under § 303
alleging that a new arena was being designed to be inaccessible to
persons with disabilities. Again, the architects were named as
defendants, and moved to dismiss on grounds that they did not own,
operate, or lease the facility. The court denied the motion, reasoning
that if § 303\'s coverage were limited to owners, operators, lessors,
and lessees, "it is conceivable that no entity would be liable for
construction of a new commercial facility which violates the ADA.\"
[Id]{.underline}. at 1178.

Two district courts have now rejected the reasoning advanced by the
[PVA]{.underline} court and by DIA in this case and have concluded that
the government\'s position is firmly grounded in the language and
structure of §§ 302 and 303. The United States asks this Court to do the
same.

C. Even if section 303 were limited to owners, operators, lessors, and
lessees, DIA is still liable for violating the ADA.

Even if § 303 were limited to the parties identified in § 302, the
undisputed facts show that DIA is still liable under § 303. Given the
degree of control that DIA exercises over all aspects of the operation
of the Champaign Days Inn and the other hotels in the Days Inn System,
DIA "operates" these hotels within the meaning of § 302.[^19]

> **1. [The "Days Inn System" and the "System Standards."]{.underline}**

When a licensee buys a franchise from DIA, he buys the "Days Inn
System," a comprehensive "hotel operating system" that sets hundreds of
mandatory "System Standards" that control the manner in which a Days Inn
must be operated. Facts ¶ 75. As the Statement of Undisputed Facts shows
in exhaustive detail, the mandatory Days Inn System and DIA System
Standards, which DIA can change at any time, address all aspects of the
operation of a Days Inn, including: operating policies that "must be
strictly observed by each property in the Days Inn System"[^20] and
requirements for grooming and attire for hotel employees, employee
uniforms, hours of operation of the front desk, services that must be
provided to guests, the forms of payment the hotel must accept, guest
safety and security, swimming pools, restaurants, free continental
breakfasts, supplies and furnishings in guest rooms, the
responsibilities of the hotel's general manager, employee relations,
employee performance, housekeeping, and maintenance. Facts ¶¶ 92-94.

> **2.[Enforcement of the System Standards: the Quality Assurance
> program.]{.underline}**

DIA actively enforces the Days Inn System and its System Standards
through its mandatory quality assurance ("QA") program and Sunburst
rating system. Facts ¶¶ 81, 95-113. Under its QA program, DIA inspects
hundreds of items at the Champaign Days Inn and other Days Inns at least
three times a year. Facts ¶¶ 95-96, 103. If a hotel fails a QA
inspection, it must improve its operations within 30 days or be subject
to suspension from the DIA reservation system and termination of its
license. Facts ¶ 101. If a hotel passes a QA inspection, its score
determines the Sunburst rating that the hotel receives in the Days Inn
Directory, a publication that DIA provides to the public. Facts ¶ 111.
As Mr. Keeble explained,

> \[t\]he big importance \[of the Sunburst rating system\] is
> franchisees have bought into it, and the big impact that we've seen is
> franchisees have bought into the concept, bought into the idea, and
> they --- they work to get that Sunburst rating up. They want it to be
> higher because it's a source of personal pride and it could very well
> be a good marketing tool for them as well. And yes, it will attract
> more guests and it might attract higher-paying guests, as well.

Facts ¶ 112. Mr. Panchal testified that the QA system and the Sunburst
rating system are important to his business because they inform
potential guests about the quality of his property. Facts ¶ 113. QA
takes on even greater significance at the Champaign Days Inn because the
license agreement between P & P and DIA provides that DIA cannot issue a
major or minor renovations notice to P & P unless the QA score dips
below 425. Facts ¶ 108.

**3. [Other means by which DIA controls or directs the functioning of
the hotels in its system.]{.underline}**

DIA exercises even further controls over the operations of the Champaign
Days Inn and other Days Inn hotels. First, in addition to controlling
the initial design and construction of new Days Inns, DIA can prevent
its licensees from modifying the hotel or require its licensees to make
hotel renovations. Facts ¶¶ 90, 108. Second, DIA operates a mandatory
national reservations system that produces 25-30% of the room
reservations for Days Inn hotels system-wide. Facts ¶¶ 83, 114-117.
Third, DIA's licensees are required to participate in a variety of
marketing and promotional programs conducted by DIA. Under some of these
programs, DIA requires each Days Inn to honor discount programs or
provide specified services and benefits to guests. Facts ¶¶ 84, 118-120.
Mr. Panchal objected to these discounts but must provide them all the
same. Facts ¶ 120. Fourth, DIA conducts several mandatory training
programs for the general managers and employees of individual Days Inns.
Facts ¶¶ 85-86, 121-127. DIA also issues a wide range of training
manuals for licensees, including manuals on housekeeping, hotel
maintenance, guest services, telephone etiquette, and many other topics.
Facts ¶ 127. These training manuals provide detailed instruction on how
to operate individual Days Inns. [Id]{.underline}. Fifth, DIA also
controls its licensees' handling of guest complaints. Facts ¶¶ 136-143.
DIA requires its licensees to respond to all guest complaints, including
meritless ones, and to report to DIA on their resolution. Facts ¶¶
138-139. Mr. Panchal has indicated to DIA that he wants more of a role
in responding to guest complaints regarding the Champaign hotel. Facts ¶
142. He has also had to reimburse DIA for guest complaints that it
responded to regarding the Champaign hotel. Facts ¶ 141. DIA involves
itself in the operations of the Champaign hotel and all Days Inn hotels
through its Franchise Services Department. Facts ¶¶ 128-136. Finally,
DIA's license agreements require the Champaign Days Inn and other Days
Inns to keep books and records specified by DIA, to provide financial
statements to DIA, to allow DIA to audit their books at any time, and to
obtain DIA approval of any food or beverage service at the hotel and any
outside management company used to run the hotel. Facts ¶¶ 82, 87-88.

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.[^21]

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. Thus, 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]{.underline} [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 consider 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 § 303, or to ensure that new hotels
joining its chain were readily accessible to and usable by individuals
with disabilities. Facts ¶¶ 37-38, 42-43, 51-61, 67-74, 144-150. Despite
provisions requiring their licensees to comply with all federal laws and
regulations, including the ADA, DIA and HFS have routinely admitted
hotels into the Days Inn System, including the Champaign Days Inn, that
they knew or should have known were inaccessible. The ADA violations at
these hotels were not minor, isolated, or hidden; rather, there were
numerous violations of the Standards in every part of the Champaign Days
Inn, and the same is true of all of the other Days Inns examined by the
United States. Facts ¶¶ 67-74. No one at HFS or DIA makes any effort to
check to see whether Days Inns comply with ADA requirements, despite the
license agreement provision requiring the hotel to comply with federal
law. Facts ¶ 149-150. 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 world's largest franchisor of
hotels, and DIA is the world's largest franchisor of economy or
"mid-market" hotels. Facts ¶ 6. Not surprisingly, HFS has substantial
annual revenues --- over \$400 million in 1995 --- and profits: in 1995,
HFS had retained earnings of \$83.6 million. Facts ¶ 153. With respect
to the Champaign Days Inn in particular, DIA and HFS collected
approximately \$122,000 in royalties and advertising fees from the
Champaign hotel during the first three years of its existence. Facts ¶¶
151-152. Given that the hotel has now been open for an additional year,
the total is likely to be closer to \$ 165,000. The United States urges
the Court to impose civil penalties on DIA and HFS of sufficient
magnitude to render their conduct with respect to the Champaign 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 summary judgment in its favor, and grant the relief
requested in its Complaint.

Respectfully submitted,

ISABELLE KATZ PINZ

Acting Assistant Attorney General

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS

Acting Deputy Chief

Disability Rights Section

DAVID H. HOFF ROBERTA S. KIRKENDALL

Assistant U.S. Attorney JEANINE M. WORDEN

C.D. of Illinois THOMAS M. CONTOIS

201 South Vine Street, Suite 226 MARGARITA M. PRIETO

Urbana, Illinois 61801 Attorneys

\(217\) 373-5875 U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0986

Dated: October 27, 1997

[^1]: ^?^The United States entered into a consent decree with the owners
    and architect of the Champaign Days Inn, and those defendants are no
    longer parties to this action.

[^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).

[^3]: ^?^[See]{.underline} § 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).

[^4]: ^?^There is no dispute that the hotel qualifies as new
    construction under title III of the ADA, or that it is subject to §
    303. The Champaign 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 23, 1993, and the facility was first occupied
    after that date as well. Facts ¶¶ 10-11. [See]{.underline} 28 C.F.R.
    § 36.401.

[^5]: ^?^Citations to "Facts" refer to the United States' Statement of
    Undisputed Material Facts in Support of Summary Judgment that were
    filed with this Memorandum. All references to "Exh." are to exhibits
    filed in support of the United States' Motion for Summary Judgment.

[^6]: ^?^In general, the violations fall into three categories: (1)
    conditions that result in unequal treatment for persons 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.

[^7]: ^?^Thus, architects would be liable for violations occurring in
    any area of a facility in which they prepared or reviewed the design
    or supervised the construction. But a roofing subcontractor would
    rarely if ever have any ADA liability, since the Standards impose no
    accessibility requirements for roofs.

[^8]: ^?^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 Champaign Days Inn, but rather were typical
    of DIA's involvement in the design and construction of all new Days
    Inn hotels.

[^9]: ^?^Title III\'s general mandate prohibiting discrimination against
    individuals with disabilities in public accommodations is set out in
    § 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 § 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
    persons with disabilities opportunities to participate in and
    benefit from their services on a basis equal to that offered to
    other individuals. [See]{.underline} 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]{.underline} 42 U.S.C. § 12182(b)(2)(A).

[^10]: ^?^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).

[^11]: ^?^The Champaign Days Inn, for instance, is a non-residential
    facility whose operations affect commerce, and thus a \"commercial
    facility.\" It is also a \"public accommodation,\" as it falls
    within one of the ADA\'s categories of public accommodation \-- \"an
    inn, hotel, motel, or other place of lodging,\" within the meaning
    of § 301(7)(A). [See]{.underline} 42 U.S.C. §§ 12181(7)(A).

[^12]: ^?^The section in question became § 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 such that the altered portions of the facility are readily
    accessible to and usable by individuals with disabilities. 42 U.S.C.
    § 12183(a)(2).

[^13]: ^?^Moreover, limiting § 303 coverage to those parties identified
    in § 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 § 302, *see* n.19, [supra]{.underline},
    parties who lease or operate a facility frequently will have nothing
    whatsoever to do with the initial design and construction of the
    facility. Indeed, it is not at all clear how one would even identify
    who "operates" a facility that has not yet been built.

[^14]: ^?^[See]{.underline} [Peyton v. Rowe]{.underline}, 391 U.S. 54,
    65 (1968) (civil rights legislation should be liberally construed to
    effectuate its remedial purpose); [Tcherepnin v.
    Knight]{.underline}, 389 U.S. 332, 336 (1967) ("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]{.underline} [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).

[^15]: ^?^Since private parties can only obtain injunctive relief ---
    not compensatory damages --- under § 303, many persons with
    disabilities will simply not file suit to enforce the statute.

[^16]: ^?^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 architectural 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).

[^17]: ^?^Section 804(f)(3)(C) of the Fair Housing Act, 42 U.S.C. §
    3604(f)(3)(C), 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 . . . .

[^18]: ^?^The [Ellerbe]{.underline} court added that it "would reach the
    same conclusion if it found that the silence of § 303(a) with
    respect to parties responsible for violations, along with the
    reference to § 302(a) in § 303(a), constituted an ambiguity in the
    statute." [Ellerbe]{.underline}, 1997 WL 610275 at \*7 n.4
    [citing]{.underline} [Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, Inc.]{.underline}, 467 U.S. 837 (1984)**.**

[^19]: ^?^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).

[^20]: ^?^The operating policies are continued in DIA's Operating
    Policies Manual, which "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, Ex. 29, at 114.

[^21]: ^?^Similar cases brought by the United States, each alleging
    violations of § 303 of the ADA, are pending against DIA and HFS in
    four other federal courts. Facts ¶¶ 2-3. 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.