Number range CHAPTERJAMES W. BRANNIGAN, JR.

United States Attorney

JOHN R. NEECE

Assistant U.S. Attorney

Chief, Civil Division

940 Front Street

Room 5-N-19

San Diego, California 92189-0150

Telephone: (619) 557-5662

JAMES P. TURNER

Acting Assistant Attorney General

JOAN A. MAGAGNA

BEBE NOVICH

JOSEPH C. RUSSO

Attorneys

Public Access Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 307-0663

Attorneys for the United States of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

│

THEODORE A. PINNOCK, │ CIVIL No. 92-1370-R (CM)

│

Plaintiff, │ **LEAVE GRANTED TO EXCEED**

││ **PAGE LIMIT OF LOCAL**

v\. │ **RULE 7.1(h)**

│

INTERNATIONAL HOUSE OF │

PANCAKES FRANCHISEE, et al., │

│

Defendants. │

│ **[UNITED STATES\' MEMORANDUM]{.underline}**

───────────────────────────────── │ **[IN SUPPORT OF ITS
CROSS-]{.underline}**

│ **[MOTION FOR SUMMARY JUDGMENT]{.underline}**

MAJID ZAHEDI doing business │ **[AND IN OPPOSITION TO]{.underline}**

as INTERNATIONAL HOUSE OF │ **[DEFENDANT\'S MOTION FOR]{.underline}**

PANCAKES, │ **[SUMMARY JUDGMENT]{.underline}**

│

Counterclaimant, │

│

v\. │ DATE: September 7, 1993

│ TIME: 10:30 a.m.

THEODORE A. PINNOCK, and │ CTRM: 5

ROES 1 THROUGH 50, │ The Honorable John

│ S. Rhoades

Counterdefendants, and │

│

THE UNITED STATES OF AMERICA, │

│

Counterdefendant- │

Intervenor. │

───────────────────────────────────

[TABLE OF CONTENTS]{.underline}

**TABLE OF AUTHORITIES** iv

**I. INTRODUCTION** 1

**II. THE AMERICANS WITH DISABILITIES ACT** 2

**III. SUMMARY OF ARGUMENT** 4

**IV. ARGUMENT** 6

> A. [IN TITLE III OF THE ADA, CONGRESS PROPERLY EXERCISED ITS BROAD
> POWER UNDER THE COMMERCE CLAUSE TO REACH THE ACTIVITIES OF RESTAURANTS
> LIKE IHOP.]{.underline} 6
>
> 1\. **IHOP Operates in Interstate Commerce.** 7
>
> 2\. **Title III Reaches the Full Extent of the\
> Commerce Clause and Would Reach IHOP Even as\
> Part of the Restaurant Industry Without Regard\
> to IHOP\'s Individual Impact on Interstate Commerce.** 11
>
> B. [TITLE III DOES NOT INTRUDE UPON STATE SOVEREIGNTY IN VIOLATION OF
> THE TENTH AMENDMENT.]{.underline} 17
>
> C. [TITLE III DOES NOT IMPROPERLY DELEGATE AUTHORITY TO EITHER THE
> EXECUTIVE OR JUDICIAL BRANCH.]{.underline} 20
>
> D. [TITLE III PROVIDES A SUFFICIENTLY PRECISE STANDARD OF CONDUCT AND,
> THEREFORE, IS NOT UNCONSTITUTIONALLY VAGUE.]{.underline} 23
>
> 1\. **Readily Achievable Barrier Removal** 27
>
> 2\. **Alternatives to Barrier Removal** 31
>
> 3\. **Reasonable Modifications of Policies and\
> Procedure** 32
>
> 4\. **Most Integrated Setting Appropriate** 34
>
> 5\. **Undue Burden** 36
>
> 6\. **Full and Equal Enjoyment and Opportunity to Participate** 38
>
> E. [TITLE III OF THE ADA DOES NOT EFFECT AN UNCONSTITUTIONAL TAKING
> WITHOUT JUST COMPENSATION.]{.underline} 40
>
> F. [TITLE III IS NOT RETROACTIVE LEGISLATION.]{.underline} 50

**V. CONCLUSION** 53

[TABLE OF AUTHORITIES]{.underline}

**CASES:**

[A.B. Small Co. v. American Sugar Refining Co.]{.underline}, 267 U.S.
233 (1925) 24

[Agins v. City of Tiburon]{.underline}, 447 U.S. 255 (1979) 40-41

[American Power & Light Co. v. SEC]{.underline}, 329 U.S. 90 (1946) 21

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

[Andrus v. Allard]{.underline}, 444 U.S. 51 (1979) 44, 46-47, 47, 48

[Baggett v. Bullitt]{.underline}, 377 U.S. 360 (1964) 24

[Bandini Petroleum Co. v. Superior Court of Cal.]{.underline}, 284 U.S.
8 (1931) 32

[Barraclough v. ADP Automotive Claims Servs., Inc.]{.underline}, 881 F.\
Supp. 1310 (N.D. Cal. 1993) 51

[Bennett v. New Jersey]{.underline}, 470 U.S. 632 (1985) 51

[Boutilier v. INS]{.underline}, 387 U.S. 118 (1967) 24

[Boyce Motor Lines v. United States]{.underline}, 342 U.S. 337 (1952)

25, 25-26

[Bradley v. School Bd. of Richmond]{.underline}, 416 U.S. 696 (1974) 51

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

[Chalmers v. City of Los Angeles]{.underline}, 762 F.2d 753 (9th Cir.\
1985) 25

[Chevron U.S.A., Inc. v. Natural Resources Defense Council,\
Inc.]{.underline}, 467 U.S. 837 (1984) 3

[Colten v. Kentucky]{.underline}, 407 U.S. 104 (1972) 25

[Commercial Builders v. Sacramento]{.underline}, 941 F.2d 872 (9th Cir.\
1991) 48

[Connolly v. Pension Benefit Guar. Corp.]{.underline}, 475 U.S. 211\
(1986) 50

[Cox v. Hart]{.underline}, 260 U.S. 427 (1922) 53

[Daniel v. Paul]{.underline}, 395 U.S. 298 (1969) 10, 11

[Dean v. Thompson]{.underline}, No. 92 C 20388, 1993 WL 169734 (N.D.
Ill.\
May 6, 1993) 51

[Edgar A. Levy Leasing Co. v. Siegel]{.underline}, 258 U.S. 242 (1922)
32-33

[EEOC v. Ratliff]{.underline}, 906 F.2d 1314 (9th Cir. 1990)

8, 10, 13, 14, 16, 16-17

[Everard\'s Breweries v. Day]{.underline}, 265 U.S. 545 (1924) 47

[FDIC v. Faulkner]{.underline}, 991 F.2d 262 (5th Cir. 1993), [reh\'g
denied]{.underline}, June 30, 1993 WL 50

[FHA v. Darlington, Inc.]{.underline}, 358 U.S. 84 (1958), [reh\'g
denied]{.underline}, 358 U.S. 937 (1959) 52

[Fleming v. Rhodes]{.underline}, 331 U.S. 100 (1947) 52

[Fleming v. USDA]{.underline}, 713 F.2d 179 (6th Cir. 1983) 26

[Fowler v. Board of Educ.]{.underline}, 819 F.2d 657 (6th Cir. 1987),
[cert. denied]{.underline}, 484 U.S. 986 (1987) 25

[Fry v. United States]{.underline}, 421 U.S. 542 (1975) 16

[Furey v. City of Sacramento]{.underline}, 780 F.2d 1448 (9th Cir. 1986)
41

[Garcia v. San Antonio Metro. Transit Auth.]{.underline}, 469 U.S. 528

\(1985\) 18

[Gibbons v. Odgen]{.underline}, 22 U.S. (9 Wheat.) 1 (1824) 6

[Goldblatt v. Town of Hempstead]{.underline}, 369 U.S. 590 (1962) 41, 46

[Grayned v. City of Rockford]{.underline}, 408 U.S. 108 (1972) 25

[Harris v. Lukhard]{.underline}, 733 F.2d 1075 (4th Cir. 1984) 33

[Heart of Atlanta Motel, Inc. v. United States]{.underline}, 379 U.S.
241 (1964) 9, 13, 14, 49-50

[Hepburn v. Griswold]{.underline}, 75 U.S. 603 (1869) 23

[Hodel v. Virginia Surface Mining & Reclamation Ass\'n]{.underline}, 452
U.S. 264 (1981) 6, 14, 16, 19, 41

[Jackson Court Condominiums, Inc. v. City of New Orleans]{.underline},
665\
F. Supp. 1235 (E.D. La. 1987), [aff\'d]{.underline}, 874 F.2d 1070 (5th
Cir. 1989) 37

[Jacob Ruppert, Inc. v. Caffey]{.underline}, 251 U.S. 264 (1920) 47

[J.W. Hampton, Jr., & Co. v. United States]{.underline}, 276 U.S. 394\
(1928) 20

[Katzenbach v. McClung]{.underline}, 379 U.S. 294 (1964)

6, 7, 9, 11, 13, 14, 15-16

[Keyishian v. Board of Regents]{.underline}, 385 U.S. 589 (1967) 24

[Keystone Bituminous Coal Ass\'n v. DeBenedictis]{.underline}, 480 U.S.
470 (1987) 44, 45

[Lai v. City and County of Honolulu]{.underline}, 841 F.2d 301 (9th
Cir.\
1988) 46

[Lake Nacimiento Ranch v. County of San Luis Obispo
County]{.underline},\
841 F.2d 872 (9th Cir. 1987) 44

[Lucas v. South Carolina Coastal Council]{.underline}, 112 S. Ct. 2886\
(1992) 44

[Lucido v. Cravath, Swaine & Moore]{.underline}, 425 F. Supp. 123
(S.D.N.Y. 1977) 10

[McAndrews v. Fleet Bank]{.underline}, 989 F.2d 13 (1st Cir. 1993) 50

[McCulloch v. Maryland]{.underline}, 17 U.S. (4 Wheat.) 316 (1819) 7

[McLain v. Real Estate Bd. of New Orleans, Inc.]{.underline}, 444 U.S.
232 (1980) 6-7, 13

[Miller v. Amusement Enters., Inc.]{.underline}, 394 F.2d 342 (5th Cir.\
1968) 9, 10

[Miller v. Schoene]{.underline}, 276 U.S. 272 (1928) 50

[Mistretta v. United States]{.underline}, 488 U.S. 361 (1989) 20, 22, 23

[NAACP v. Button]{.underline}, 371 U.S. 415 (1963) 24

[New York v. United States]{.underline}, 112 S. Ct. 2408 (1992) 19

[Nollan v. California Coastal Comm\'n]{.underline}, 483 U.S. 825 (1987)
48

[Park Ave. Tower Assocs. v. City of New York]{.underline}, 746 F.2d 135
(2d Cir. 1984) 47

[Penn Cent. Transp. Co. v. City of New York]{.underline}, 438 U.S. 104\
(1978) 43-44

[Pennsylvania Coal Co. v. Mahon]{.underline}, 260 U.S. 393 (1922) 44,
45, 47

[Perez v. United States]{.underline}, 402 U.S. 146 (1971) 7, 16

[Preseault v. Interstate Commerce Comm\'n]{.underline}, 494 U.S. 1
(1990) 14

[Railway Labor Executives\' Ass\'n v. Skinner]{.underline}, 934 F.2d
1096\
(9th Cir. 1991) 22

[Rath Packing Co. v. M.H. Becker]{.underline}, 530 F.2d 1295 (9th Cir.\
1975), [aff\'d sub nom. Jones v. Rath Packing Co.]{.underline}, 430
U.S.\
519, [cert. denied]{.underline}, 430 U.S. 954, [reh\'g
denied]{.underline}, 431 U.S. 925 (1977) 26

[Roberts v. United States Jaycees]{.underline}, 468 U.S. 609 (1984) 38

[Ruckelshaus v. Monsanto Co.]{.underline}, 467 U.S. 985 (1984) 47

[Russell v. United States]{.underline}, 471 U.S. 858 (1985) 13, 16

[Rymer v. Douglas County]{.underline}, 764 F.2d 796 (11th Cir. 1985) 46

[Seniors Civil Liberties Ass\'n v. Kemp]{.underline}, 965 F.2d 1030
(11th\
Cir. 1992) 14

[Skinner v. Mid-America Pipeline Co.]{.underline}, 490 U.S. 212 (1989)
20-21

[South Carolina v. Baker]{.underline}, 485 U.S. 505 (1988) 18-19

[Southeastern Community College v. Davis]{.underline}, 442 U.S. 397\
(1979) 33, 36

[Stevens v. United States]{.underline}, 440 F.2d 144 (6th Cir. 1971) 14,
16

[Touby v. United States]{.underline}, 111 S. Ct. 1752 (1991) 20

[Trustees for Alaska v. EPA]{.underline}, 749 F.2d 549 (9th Cir. 1984)
41

[United States v. American Trucking Ass\'ns, Inc.]{.underline}, 310 U.S.
534\
(1940) 23

[United States v. Catanzaro]{.underline}, 368 F. Supp. 450 (D. Conn.\
1973) 28

[United States v. Darby]{.underline}, 312 U.S. 100 (1941) 6, 7, 16

[United States v. Felsen]{.underline}, 648 F.2d 681 (10th Cir.), [cert.\
denied]{.underline}, 484 U.S. 861 (1981) 28

[United States v. Manufacturer\'s Nat\'l Bank]{.underline}, 363 U.S.
194\
(1960) 52-53

[United States v. Morton]{.underline}, 467 U.S. 822 (1984) 3

[United States v. Riverside Bayview Homes, Inc.]{.underline}, 474 U.S.
121 (1985) 44

[United States v. Schneiderman]{.underline}, 968 F.2d 1564 (2d Cir.
1992), [cert. denied]{.underline}, 113 S. Ct. 1283 (1993) 26

[United States v. Thirty-Seven Photographs]{.underline}, 402 U.S. 363\
(1971) 13

[United States v. Vizena]{.underline}, 342 F. Supp. 553 (W.D. La. 1972)
11

[United States v. Wrightwood Dairy Co.]{.underline}, 315 U.S. 110 (1942)
7

[United States Civil Serv. Comm\'n v. National Ass\'n of Letter
Carriers]{.underline}, 413 U.S. 548 (1973) 13

[Usery v. Turner Elkhorn Mining Co.]{.underline}, 428 U.S. 1 (1976) 47,
50

[Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc.]{.underline}, 455 U.S. 489 (1982) 23-24, 24-25, 26, 26-27

[Ward v. Rock Against Racism]{.underline}, 491 U.S. 781 (1989) 27-28

[West Virginia Mfrs. Ass\'n v. West Virginia]{.underline}, 714 F.2d 308
(4th Cir. 1983) 27

[Wickard v. Filburn]{.underline}, 317 U.S. 111 (1942) 7, 16

[Yakus v. United States]{.underline}, 321 U.S. 414 (1944) 21-22, 22

**CONSTITUTION:**

U.S. CONST. amend. V 40

U.S. CONST. amend. X 17

U.S. CONST. art. I, § 8 6, 12

U.S. CONST. art. III, § 2 23

**STATUTES:**

Americans with Disabilities Act,

> 42 U.S.C. §§ 12181-89 (Supp. II 1990) 1
>
> 42 U.S.C. § 12101(b)(1) (Supp. II 1990) 2, 48-49
>
> 42 U.S.C. § 12101(b)(2) (Supp. II 1990) 48-49
>
> 42 U.S.C. § 12101(b)(4) (Supp. II 1990) 2, 12-13
>
> 42 U.S.C. § 12102(2) (Supp. II 1990) 21
>
> 42 U.S.C. § 12181(1) (Supp. II 1990) 12
>
> 42 U.S.C. § 12181(2) (Supp. II 1990) 21
>
> 42 U.S.C. § 12181(7) (Supp. II 1990) 3, 12, 21
>
> 42 U.S.C. § 12181(9) (Supp. II 1990) 28, 41, 42
>
> 42 U.S.C. § 12181 note (Supp. II 1990) 51
>
> 42 U.S.C. § 12182 (Supp. II 1990) 3, 21, 41
>
> 42 U.S.C. § 12182(a) (Supp. II 1990) 3, 38
>
> 42 U.S.C. § 12182(b)(1)(A)(i) (Supp. II 1990) 4, 38-39, 39
>
> 42 U.S.C. § 12182(b)(1)(A)(ii) (Supp. II 1990) 4, 39
>
> 42 U.S.C. § 12182(b)(1)(A)(iii) (Supp. II 1990) 4, 39
>
> 42 U.S.C. § 12182(b)(1)(B) (Supp. II 1990) 4, 34
>
> 42 U.S.C. § 12182(b)(2)(A)(i) (Supp. II 1990) 4
>
> 42 U.S.C. § 12182(b)(2)(A)(ii) (Supp. II 1990) 4, 32
>
> 42 U.S.C. § 12182(b)(2)(A)(iii) (Supp. II 1990) 4, 36
>
> 42 U.S.C. § 12182(b)(2)(A)(iv) (Supp. II 1990) 4, 17, 27
>
> 42 U.S.C. § 12182(b)(2)(A)(v) (Supp. II 1990) 4, 31
>
> 42 U.S.C. § 12183 (Supp. II 1990) 4, 41-42
>
> 42 U.S.C. § 12186(b) (Supp. II 1990) 3, 17, 21, 26, 41
>
> 42 U.S.C. § 12186(c) (Supp. II 1990) 17, 21, 41
>
> 42 U.S.C. § 12187 (Supp. II 1990) 21
>
> 42 U.S.C. § 12188 (Supp. II 1990) 21
>
> 42 U.S.C. § 12188(b)(1)(A)(ii) (Supp. II 1990) 20
>
> 42 U.S.C. § 12204 (Supp. II 1990) 17
>
> 42 U.S.C. § 12206(c)(3) (Supp. II 1990) 27
>
> 42 U.S.C. § 12206(d) (Supp. II 1990) 27

Civil Rights Act of 1964,

> 42 U.S.C. § 2000a(a)(6) (1988) 38

Fair Housing Act,

> 42 U.S.C. § 3604(f)(3)(B) (1988) 38
>
> 42 U.S.C. § 3631 (1988) 38

Federal Insecticide, Fungicide, and Rodenticide Act,

> 7 U.S.C. § 136 (1988) 47
>
> 28 U.S.C. § 2403 (1988) 1

Federal Railway Safety Act of 1970 (as amended),

> 45 U.S.C. § 431(a) (1988) 22

Rehabilitation Act of 1973,

> 29 U.S.C. § 794 (1973) 36

**REGULATIONS:**

28 C.F.R. pt. 36 (1991) 26

28 C.F.R. pt. 36, app. A, § 2.2 (1991) 19

28 C.F.R. pt. 36, app. B (1991) 27, 33-34, 35

28 C.F.R. § 36.104 (1991) 3, 29, 36-37

28 C.F.R. § 36.104, app. B (1991) 29-30, 30, 35, 36

28 C.F.R. § 36.201 (1991) 3

28 C.F.R. § 36.202, app. B (1991) 35, 40

28 C.F.R. § 36.302(c) (1991) 33

28 C.F.R. § 36.302(d) (1991) 33

28 C.F.R. § 36.304(b) (1991) 29, 42

28 C.F.R. § 36.304(b), app. B (1991) 29

28 C.F.R. § 36.304(d) (1991) 17

28 C.F.R. § 36.305(b) (1991) 31-32

28 C.F.R. § 36.305(b), app. B (1991) 31-32

28 C.F.R. § 36.406 (1991) 42

28 C.F.R. § 36.406(a) (1991) 17

56 Fed. Reg. 35,544 (1991) 2, 23

56 Fed. Reg. 35,545 (1991) 23

**LEGISLATIVE HISTORY:**

134 Cong. Rec. E1308 (1988) (statement of Rep. Coelho) 15

136 Cong. Rec. E1913 (1990) (statement of Rep. Hoyer) 5, 13

138 Cong. Rec. S614 (1992) (statement of Sen. Durenberger) 15

H.R. Rep. No. 485, 101st Cong., 2d Sess., pts. II, III (1990),
[reprinted in]{.underline} 1990 U.S.C.C.A.N. 327 35-36, 36, 45

S. Rep. No. 116, 101st Cong., 1st Sess. (1989)

28-29, 31, 34, 36, 38, 42, 48, 49

**RULES:**

Fed. R. Civ. P. 56(c) 1

**MISCELLANEOUS:**

U.S. Department of Justice, The Americans with Disabilities\
Act \-- Title III Technical Assistance Manual (1992 & Supp.\
1993) 27, 30, 32, 34, 35, 37, 40

**I. INTRODUCTION**

Plaintiff Theodore Pinnock filed this action under title III of the
Americans with Disabilities Act of 1990 (\"ADA\"), 42 U.S.C. §§ 12181-89
(Supp. II 1990), against the owners and operators of the International
House of Pancakes restaurant (\"IHOP\") located at 5370 Kearny Mesa Road
in San Diego. Title III of the ADA prohibits discrimination on the basis
of disability in places of public accommodation, including restaurants.
In his complaint, Pinnock alleged that IHOP failed to comply with
certain title III provisions applicable to existing places of public
accommodation.

IHOP has counterclaimed, asserting that title III is unconstitutional on
various grounds. Because the constitutionality of a Federal statute was
called in question, this Court duly notified the Attorney General and,
upon uncontested motion, the United States was granted leave to
intervene, pursuant to 28 U.S.C. § 2403 (1988) to defend the
constitutionality of title III.

The case is now before the Court on cross-motions for summary judgment
filed by IHOP and the United States regarding the constitutional issues
raised in IHOP\'s counterclaim. Summary judgment is proper under Federal
Rule of Civil Procedure 56(c) where 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 a judgment as a
matter of law.\" [Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317,
322 (1986); [Anderson v. Liberty Lobby, Inc.]{.underline}, 477 U.S. 242,
247 (1986). We demonstrate below that there are no disputes of fact and
there is no merit to any of the constitutional challenges asserted by
IHOP.[^1] Accordingly, this Court should grant the United States\'
cross-motion for summary judgment, deny IHOP\'s motion, and dismiss
IHOP\'s counterclaim.

**II. THE AMERICANS WITH DISABILITIES ACT**

The stated purpose of the ADA is \"to provide a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.\" 42 U.S.C. § 12101(b)(1) (Supp. II
1990).[^2] Congress invoked the full sweep of its authority under the
Commerce Clause and the Fourteenth Amendment to accomplish this mandate.
[Id.]{.underline} § 12101(b)(4) (Supp. II 1990). The ADA\'s coverage is
accordingly broad \-- prohibiting discrimination on the basis of
disability in employment, State and local government programs and
services, transportation systems, telecommunications, commercial
facilities, and the provision of goods and services offered to the
public by private businesses.

This case involves the application of title III of the ADA, which
applies to privately owned and operated public accommodations and
commercial facilities. As defined in the Act and in the regulation
promulgated under title III, \"public accommodation\" means a private
entity that owns, operates, or leases a place of public accommodation.
[Id.]{.underline} §§ 12181(7) & 12182 (Supp. II 1990); 28 C.F.R. §§
36.104, at 460, 36.201, at 461 (1991).[^3] Places of public
accommodation are defined in title III as any of twelve categories of
facilities whose operations affect commerce, one category of which is
\"restaurant\[s\], bar\[s\], or other establishment\[s\] serving food or
drink,\" 42 U.S.C. § 12181(7) (Supp. II 1990).

For existing facilities, such as IHOP, title III imposes certain
obligations to prevent discrimination on the basis of disability. Such
facilities may not deny persons with disabilities the full and equal
enjoyment of their goods, services, facilities, privileges, advantages,
or accommodations. [Id.]{.underline} § 12182(a). This general rule
encompasses prohibitions against:

> \(1\) denying the opportunity to participate or benefit in the goods,
> services, etc., [id.]{.underline} § 12182(b)(1)(A)(i);
>
> \(2\) affording unequal participation in or an unequal benefit from
> the goods and services, [id.]{.underline} § 12182(b)(1)(A)(ii);
>
> \(3\) unnecessarily affording separate or different goods and
> services, [id.]{.underline} § 12182(b)(1)(A)(iii);
>
> \(4\) providing goods or services in a segregated setting,
> [id.]{.underline} § 12182(b)(1)(B);
>
> \(5\) imposing unnecessary discriminatory eligibility criteria to
> receive goods and services, [id.]{.underline} § 12182(b)(2)(A)(i);
>
> \(6\) failing to make reasonable modifications in policies, practices,
> and procedures when necessary to afford goods and services, unless
> doing so would fundamentally alter the nature of the goods and
> services provided, [id.]{.underline} § 12182(b)(2)(A)(ii);
>
> \(7\) failing to provide auxiliary aids and services for
> communication, unless doing so would cause an undue burden or would
> fundamentally alter the nature of the goods and services provided,
> [id.]{.underline} § 12182(b)(2)(A)(iii);
>
> \(8\) failing to remove architectural barriers and communication
> barriers that are structural in nature where removal is readily
> achievable, [id.]{.underline} § 12182(b)(2)(A)(iv); and
>
> \(9\) failing to take alternative measures to provide goods and
> services if such measures are readily achievable in those instances
> where barrier removal is not readily achievable, [id.]{.underline} §
> 12182(b)(2)(A)(v).[^4]

**III. SUMMARY OF ARGUMENT**

1\. The enactment of title III of the ADA was well within Congress\'
broad power to legislate under the Commerce Clause, and title III
properly reaches the conduct of privately owned and operated
restaurants, including IHOP, regardless of whether their individual
operations would, standing alone, substantially affect interstate
commerce.[^5]

2\. Congress\' enactment of title III does not intrude on State
sovereignty in violation of the Tenth Amendment.

3\. Congress has not improperly delegated legislative authority to the
executive and judicial branches either by directing the Attorney General
to develop regulations implementing title III or by authorizing the
federal courts to hear title III claims.

4\. The statutory language of title III, as further amplified by the
Department of Justice\'s title III regulation, is sufficiently precise
to notify covered entities of their obligations and, thus, is not
unconstitutionally vague.

5\. Title III does not destroy or adversely affect the economic
viability of IHOP\'s operations and, accordingly, does not effect a
taking requiring compensation under the Fifth Amendment.

6\. Title III\'s application to existing facilities is not a retroactive
application that would violate the Due Process Clause.

**IV. ARGUMENT**

> A. [IN TITLE III OF THE ADA, CONGRESS PROPERLY EXERCISED ITS BROAD
> POWER UNDER THE COMMERCE CLAUSE TO REACH THE ACTIVITIES OF RESTAURANTS
> LIKE IHOP.]{.underline}

Article I, Section 8 of the Constitution grants Congress the power to
\"regulate Commerce . . . among the several States\" and to enact all
laws necessary and proper to this end. U.S. CONST., art. I, § 8, cls. 3,
18; [Katzenbach v. McClung]{.underline}, 379 U.S. 294, 301-02 (1964).
The Supreme Court has repeatedly emphasized the expansiveness of the
Commerce Clause power.

> \[T\]he Commerce Clause is a grant of plenary authority to Congress. .
> . . This power is \"complete in itself, may be exercised to its utmost
> extent, and acknowledges no limitations, other than are prescribed in
> the constitution.\"

[Hodel v. Virginia Surface Mining & Reclamation Ass\'n]{.underline}, 452
U.S. 264, 276 (1981) (quoting [Gibbons v. Ogden]{.underline}, 22 U.S. (9
Wheat.) 1 (1824); [accord]{.underline} [United States v.
Darby]{.underline}, 312 U.S. 100, 114 (1941).

Because this authority is so broad, the Commerce Clause has been
interpreted consistently to empower Congress to regulate not only
interstate activities, but also intrastate activities that substantially
affect interstate commerce. [See, e.g.]{.underline}, [McLain v. Real
Estate Bd. of New Orleans, Inc.]{.underline}, 444 U.S. 232, 241 (1980);
[Perez v. United States]{.underline}, 402 U.S. 146, 151 (1971) (citing
[United States v. Wrightwood Dairy Co.]{.underline}, 315 U.S. 110, 119
(1942)); [Wickard v. Filburn]{.underline}, 317 U.S. 111, 122-25 (1942);
[Darby]{.underline}, 312 U.S. at 118; [McCulloch v.
Maryland]{.underline}, - 17 U.S. (4 Wheat.) 316, 421 (1819).

IHOP does not take issue with these general principles (see IHOP Mem. at
43-46). Rather, IHOP argues that its conduct is not covered by title III
because its operations are entirely [intra]{.underline}state (IHOP Mem.
at 47). However, we demonstrate below, based on undisputed facts, that
IHOP operates in [inter]{.underline}state commerce and, in any event, as
part of the restaurant industry, IHOP is properly subject to Commerce
Clause regulation regardless of its individual impact on interstate
commerce.

> **1. IHOP Operates in Interstate Commerce.**

To buttress its assertion that its activities are solely intrastate,
IHOP offers as evidence only the statement that \"all products (i.e.,
eggs, meat, bread, milk, etc.) that are served at IHOP were purchased
within the state of California.\"[^6] However, the determination of
whether a business operates in interstate commerce encompasses far more
than merely information about where the final products it uses are
purchased. [See]{.underline} [Katzenbach]{.underline}, 379 U.S. at
296-97 (under title II of the Civil Rights Act of 1964, restaurant found
to operate in interstate commerce where 46% of food served originated
out-of-state, though defendant purchased the food from a local
supplier); [EEOC v. Ratliff]{.underline}, 906 F.2d 1314, 1316 (9th Cir.
1990) (under title VII of the Civil Rights Act of 1964, employer found
to operate in interstate commerce where it used items that \"have moved
through interstate commerce at some point\").

IHOP is a franchise of a large, international, publicly traded
corporation (\"IHOP Corp.\"), organized under Delaware law.[^7] IHOP
Corp. had total retail sales of \$479 million in 1992, operates 547
franchises in 35 states, Canada, and Japan, and employs 16,000
persons.[^8] We submit that the franchise relationship with IHOP Corp.,
without more, is sufficient to establish IHOP as fully in the mainstream
of interstate commerce. However, there are many additional facts to
support the conclusion that IHOP is an interstate business.

IHOP is located directly across the street from State Highway 163, and
within 2 miles of two interstate highways.[^9] Across Kearny Mesa Road
from IHOP, within walking distance of the restaurant, are three
hotels.[^10] Three motels are located within 1 1/2 miles from IHOP.[^11]
The courts have found these facts to be indicia of a business operating
in interstate commerce. [See]{.underline} [Katzenbach]{.underline}, 379
U.S. at 127 (restaurant on state highway, 11 blocks from interstate
highway, affected commerce); [Heart of Atlanta Motel, Inc. v. United
States]{.underline}, 379 U.S. 241, 243 (1964) (motel 2 blocks from
downtown road and \"readily accessible\" to two intrastate and two
interstate highways affected commerce); [Miller v. Amusement Enters.,
Inc.]{.underline}, 394 F.2d 342, 345 (5th Cir. 1968) (amusement park 150
yards from intrastate highway affected commerce).

IHOP has advertised at one of the hotels.[^12] It contributes to a
national advertising account through which IHOP Corp. advertises
nationally.[^13] It contributes to a co-\
op, serving a number of IHOP franchises. This co-op advertises in
newspapers and television.[^14] The courts have deemed such conduct to
be characteristic of a business operating in interstate commerce.
[See]{.underline} [Daniel v. Paul]{.underline}, 395 U.S. 298, 304 (1969)
(targeting advertising to out-of-state visitors at area hotels and
motels); [Miller]{.underline}, 394 F.2d at 349 (advertising on radio and
television without geographic restrictions).

IHOP serves customers from out of state and accepts payment by
out-of-state credit cards.[^15] It also carries insurance written by an
interstate company.[^16] These are further attributes of a business in
interstate commerce. [Ratliff]{.underline}, 906 F.2d at 1316, 1317 n.4
(serving out-of-state patrons and carrying insurance from out-of-state
company); [Lucido v. Cravath, Swaine & Moore]{.underline}, 425 F. Supp.
123 (S.D.N.Y. 1977) (serving out-of-state clients).

Most of the food and non-food items used by IHOP have moved in
interstate commerce.[^17] These facts establish that IHOP operates in
interstate commerce. [See]{.underline} [Daniel]{.underline}, 395 U.S. at
305 (Supreme Court took judicial notice that the principal ingredients
of the food most often sold by defendant, hamburgers, hot dogs, soft
drinks, and milk, probably originated out-of-state);
[Katzenbach]{.underline}, 379 U.S. at 296-97 (restaurant that served
food, 46% of which originated out-of-state, operated in interstate
commerce); [United States v. Vizena]{.underline}, 342 F. Supp. 553,
554-55 (W.D. La. 1972) (defendant\'s bar found to operate in interstate
commerce because juke box, pool table, pool equipment, and records
played on the juke box originated out-of-state).

> **2. Title III Reaches the Full Extent of the Commerce Clause and
> Would Reach IHOP Even as Part of the Restaurant Industry Without
> Regard to IHOP\'s Individual Impact on Interstate Commerce.**

Even if IHOP could possibly establish that it is strictly an
[intra]{.underline}state operation, it would be covered by title III
because title III reaches intrastate conduct having a substantial effect
on interstate commerce and IHOP, as part of the restaurant industry,
fits that description.

a\. It is apparent from the language of the statute itself and from the
legislative history that Congress intended title III to reach activities
of places of public accommodation to the fullest extent permissible
under the Commerce Clause. To have this scope, a statute need not, as
IHOP argues (IHOP Mem. at 46-47), state explicitly that it covers
[intra]{.underline}state activities having a substantial effect on
interstate commerce.

By invoking the language of the Commerce Clause itself, Congress
indicates that a statute is to reach as broadly as that clause permits.
The Commerce Clause grants Congress the power to regulate commerce with
\"foreign Nations, and among the several States.\" U.S. CONST. art. I, §
8, cl. 3. Title III of the ADA covers, [inter alia]{.underline},
\"public accommodations,\" which are defined by an illustrative list of
types of facilities whose operations \"affect commerce.\" 42 U.S.C. §
12181(7) (Supp. II 1990). Title III uses the language of the Commerce
Clause, defining \"commerce\" as travel, trade, traffic, commerce,
transportation, or communication:

> \(A\) among the several States;
>
> \(B\) between any foreign country or any territory or possession and
> any State; or
>
> \(C\) between points in the same State but through another State or
> foreign country.

[Id.]{.underline} § 12181(1). In addition, the ADA\'s statement of
purpose recites that it intends \"to invoke the sweep of congressional
authority, including the power . . . to regulate commerce.\"
[Id.]{.underline} § 12101(b)(4).[^18]

Statutes that use the same \"affect commerce\" language as title III
have been interpreted to demonstrate congressional intent to encompass
the full extent of the commerce power. [See]{.underline},
[e.g.]{.underline}, [Russell v. United States]{.underline}, 471 U.S.
858, 859 (1985); [Ratliff]{.underline}, 906 F.2d at 1316. Courts have
uniformly upheld the constitutionality of statutes that cover entities
whose activities \"affect commerce,\" including title II of the Civil
Rights Act of 1964, which was the model for title III of the ADA.
[See]{.underline} [Katzenbach]{.underline}, 379 U.S. at 298; [Heart of
Atlanta Motel, Inc.]{.underline}, 379 U.S. at 258; [see
also]{.underline} [McLain v. Real Estate Bd. of New Orleans,
Inc.]{.underline}, 444 U.S. 232, 241 (1980) (Sherman Act);
[Ratliff]{.underline}, 906 F.2d 1314 (title VII of Civil Rights Act of
1964).[^19]

b\. In deciding whether a Federal statute operates within the
constitutional authority granted under the Commerce Clause, a court may
consider only: (1) whether regulation of the activity at issue is
rationally related to a legitimate constitutional end, and (2) whether
the means chosen by the statute are reasonable to reach that end.
[Preseault v. Interstate Commerce Comm\'n]{.underline}, 494 U.S. 1,
11-12 (1990); [Hodel]{.underline}, 452 U.S. at 276 (citing [Heart of
Atlanta Motel]{.underline}, 379 U.S. at 262).

Courts must defer to congressional findings that an activity affects
commerce, so long as there is a rational basis for such a finding, but
formal congressional findings are not necessary. [Hodel]{.underline},
452 U.S. at 276; [Katzenbach]{.underline}, 379 U.S. at 303-04; [Seniors
Civil Liberties Ass\'n v. Kemp]{.underline}, 965 F.2d 1030, 1034 (11th
Cir. 1992) (citing [Preseault]{.underline}, 494 U.S. at 18); [Stevens v.
United States]{.underline}, 440 F.2d 144, 151-52 (6th Cir. 1971). In
fact, a court may take judicial notice of some publicly known facts in
determining the rationality of a statute. [See, e.g.]{.underline},
[Ratliff]{.underline}, 906 F.2d at 1318 (commenting on the ease with
which the court may take judicial notice of the spa industry\'s affect
on interstate commerce); [Stevens]{.underline}, 440 F.2d at 151-52 (the
fact that possession of firearms by convicted felons threatens
interstate commerce \"is a statement of facts of public knowledge of
which this Court will take judicial notice\").

The ADA\'s legislative history reflects that discrimination in
restaurants against persons with disabilities has adverse affects on
persons with disabilities.[^20] Congress is well within its Commerce
Clause power to redress such discrimination. As the Supreme Court has
recognized in the context of racial discrimination, the restaurant
industry unquestionably affects interstate commerce in a substantial
way. In [Katzenbach]{.underline}, the Court noted that

> discrimination in restaurants ha\[s\] a direct and highly restrictive
> effect upon interstate travel by Negroes. This resulted . . . because
> discriminatory practices prevent Negroes from buying prepared food
> served on the premises while on a trip, except in isolated and unkempt
> restaurants and under most unsatisfactory and often unpleasant
> conditions. This obviously discourages travel and obstructs interstate
> commerce for one can hardly travel without eating. Likewise, . . .
> discrimination deter\[s\] professional, as well as skilled, people
> from moving into areas where such practices occurred and thereby
> cause\[s\] industry to be reluctant to establish there.

[Katzenbach]{.underline}, 379 U.S. at 300.

The commerce power allows Congress to regulate any entity, regardless of
its individual impact on interstate commerce, so long as the entity
engages in a class of activities that affects interstate commerce.
[Russell]{.underline}, 471 U.S. at 862; [Hodel]{.underline}, 452 U.S. at
277 (citing [Fry v. United States]{.underline}, 421 U.S. 542, 547
(1975)), [Perez v. United States]{.underline}, 402 U.S. 146, 151-54
(1971). As the Supreme Court stated in [Darby]{.underline}, Congress has
\"recognized that in present day industry, competition by a small part
may affect the whole and that the total effect of the competition of
many small producers may be great.\" [Darby]{.underline}, 312 U.S. at
123; [Wickard]{.underline}, 317 U.S. at 128-29; [Ratliff]{.underline},
906 F.2d at 1318; [Stevens]{.underline}, 440 F.2d at 151-52.

In [Russell]{.underline}, for example, the Supreme Court sustained a
federal arson statute\'s coverage of a landlord whose property had no
direct connection to interstate commerce. [Russell]{.underline}, 471
U.S. 858. The Court noted that \"the local rental of an apartment unit
is merely an element of a much broader commercial market in rental
properties\" and concluded that \"\[t\]he congressional power to
regulate the class of activities that constitute the rental market for
real estate includes the power to regulate individual activity within
that class.\" [Id.]{.underline} at 862; [see also]{.underline}
[Ratliff]{.underline}, 906 F.2d at 1317-18 (upholding plaintiff\'s claim
that \"as a matter of law if a local business is within a class of
activities which in the aggregate has an effect on commerce, there is no
need for a particularized factual showing that the \[business\] meets
the \'affecting-commerce\' test\".) Thus, regardless of IHOP\'s
individual circumstances, it is subject to Commerce Clause regulation as
part of the restaurant industry.

> B. [TITLE III DOES NOT INTRUDE UPON STATE SOVEREIGNTY IN VIOLATION OF
> THE TENTH AMENDMENT.]{.underline}

The Tenth Amendment reserves to State governments \"the powers not
delegated to the United States by the Constitution nor prohibited by
it.\" U.S. CONST. amend. X. Title III regulates private activity in a
manner that does not usurp State authority or intrude upon State
sovereignty. Therefore, contrary to IHOP\'s argument, title III does not
contravene the Tenth Amendment.

Title III requires existing places of public accommodation, like IHOP,
to remove architectural barriers to access where such removal is readily
achievable. 42 U.S.C. § 12182(b)(2)(A)(iv) (Supp. II 1990). The title
III regulation provides that measures taken to comply with barrier
removal must, if readily achievable, comply with the Standards for
Accessible Design applicable to alterations. 28 C.F.R. §§ 36.304(d), at
467, 36.406(a), at 474 (1991).[^21] IHOP argues that the design
standards comprise, essentially, a national building code that violates
the Tenth Amendment because building codes are \"essentially local in
nature\" and, therefore, exclusively within the regulatory authority of
the States. (IHOP Mem. at 41).

The Supreme Court has rejected the argument IHOP makes, that a Federal
law violates the Tenth Amendment simply because the law regulates in an
area traditionally subject to State regulation. In its landmark
decision, [Garcia v. San Antonio Metropolitan Transit
Authority]{.underline}, the Court found

> unsound in principle and unworkable in practice, a rule of state
> immunity from federal regulation that turns on a judicial appraisal of
> whether a particular governmental function is \"integral\" or
> \"traditional.\"

469 U.S. 528, 546-47 (1985). In rejecting the \"integral or traditional
governmental function\" test, the Court observed that the \"composition
of the federal government was designed in large part to protect the
states from overreaching by Congress.\" [Id.]{.underline} at 551.
Finding the Constitution\'s limitation on Congress\' actions with
respect to States to be one of \"process rather than one of result,\"
[id.]{.underline} at 554, the Court ruled that the sovereignty of States
is protected by \"the built-in restraints that our system provides
through state participation in federal governmental action.\"
[Id.]{.underline} at 556.

Similarly, in [South Carolina v. Baker]{.underline}, the Court ruled
that Congress\' removal of Federal tax exemption for interest earned on
State and local government bonds did not violate the Tenth Amendment.
485 U.S. 505, 512 (1988). Rejecting South Carolina\'s substantive
analysis, the Court said, \"States must find their protection from
congressional regulation through the national political process, not
through judicially defined spheres of unregulable activity.\"
[Id.]{.underline} at 512.

Title III does not \"commandee\[r\] the legislative processes of the
states by directly compelling them to enact and enforce a federal
regulatory program.\" [New York v. United States]{.underline}, 112 S.
Ct. 2408, 2420 (1992) (citing [Hodel]{.underline}, 452 U.S. at 288). In
[New York]{.underline}, the Supreme Court ruled that certain provisions
of the Federal Low-Level Radioactive Waste Policy Act were
unconstitutional because they required states to choose between either
\"accepting ownership of \[radioactive\] waste or regulating according
to the instructions of Congress.\" [New York]{.underline}, 112 S. Ct. at
2428. This the Court found to be \"no choice at all.\" [Id.]{.underline}

Title III\'s statutory scheme is quite different. It does not displace
local building codes or usurp local powers. It is not a building code
but a Federal civil rights act that sets forth accessibility standards
that places of public accommodation and commercial facilities must
follow.[^22] State and local building codes remain in effect to be
enforced by State officials. State and local codes can provide for
accessibility that goes beyond ADA requirements. State officials are
required neither to adopt nor to enforce the ADA Standards for
Accessible Design.[^23]

> C. [TITLE III DOES NOT IMPROPERLY DELEGATE AUTHORITY TO EITHER THE
> EXECUTIVE OR JUDICIAL BRANCH.]{.underline}

Article I of the Constitution vests legislative authority in the
Congress. The early cases cited by IHOP stand for the proposition that
Congress may not abdicate its legislative responsibilities altogether by
authorizing the executive branch to make law. This general principle,
however, \"does not prevent Congress from seeking assistance, within
proper limits, from its coordinate Branches.\" [Touby v. United
States]{.underline}, 111 S. Ct. 1752, 1756 (1991) (citing [Mistretta v.
United States]{.underline}, 488 U.S. 361, 372 (1989)). So long as
Congress \"lay\[s\] down by legislative act an intelligible principle to
which the person or body authorized to \[act\] is directed to conform,
such legislative action is not a forbidden delegation of legislative
power.\" [Touby]{.underline}, 111 S. Ct. at 1756 (quoting [J.W. Hampton,
Jr. & Co. v. United States]{.underline}, 276 U.S. 394, 409 (1928); [see
also]{.underline} [Skinner v. Mid-America Pipeline Co.]{.underline}, 490
U.S. 212, 218-21 (1989). It is \"constitutionally sufficient if Congress
clearly delineates the general policy, the public agency which is to
apply it, and the boundaries of this delegated authority.\" [American
Power & Light Co. v. SEC]{.underline}, 329 U.S. 90, 105 (1946).

Title III meets this standard. Congress directed the Attorney General to
promulgate regulations to implement title III. [See]{.underline} 42
U.S.C. § 12186(b), (c) (Supp. II 1990). Moreover, the statute guides the
Attorney General\'s discretion by, among other things: (1) defining who
is to be considered an individual with a disability under the Act, 42
U.S.C. § 12102(2) (Supp. II 1990); (2) listing the categories of
entities subject to title III as well as those that are exempt, 42
U.S.C. §§ 12181(2), (7) & 12187 (Supp. II 1990); (3) specifying in
detail the conduct that will violate the statute, 42 U.S.C. § 12182
(Supp. II 1990); and (4) setting forth the means for enforcement
including the types of relief to be afforded, 42 U.S.C. § 12188 (Supp.
II 1990). Thus, Congress gave the Attorney General a very complete
framework within which to articulate the more detailed regulatory
provisions.

The courts have upheld far more open-ended delegations of authority to
the executive branch. For example, in [Yakus v. United
States]{.underline}, the Supreme Court upheld the Emergency Price
Control Act\'s delegation of authority to \[the Administrator to\]
\"promulgate regulations fixing prices of commodities which \'in his
judgment will be generally fair and equitable and will effectuate the
purposes of th\[e\] Act\'.\" [Yakus v. United States]{.underline}, 321
U.S. 414, 420 (1944). In [Railway Labor Executives\' Ass\'n v.
Skinner]{.underline}, the Court of Appeals ruled that the Secretary of
Transportation\'s promulgation of drug testing regulations did not
result from an unconstitutional delegation of power when that rulemaking
authority was derived only from a statutory directive to promulgate
\"appropriate rules, regulations, orders, and standards for all areas of
railroad safety.\" 934 F.2d 1096, 1100 (9th Cir. 1991) (quoting 45
U.S.C. § 431(a) (1988).

Contrary to IHOP\'s suggestion, the delegation of rulemaking authority
to the executive branch is not improper because it calls for policy
judgments to be made. In [Yakus]{.underline}, the Supreme Court
specifically rejected just such an argument, stating that in determining
regulations implementing fixed prices, \"It is no objection \[that such
determinations\] . . . call for the exercise of judgment, and for the
formulation of subsidiary administrative policy within the prescribed
statutory framework.\" [Yakus]{.underline}, 321 U.S. at 425. The Supreme
Court reiterated this position when it upheld Congress\' delegation of
authority to establish sentencing guidelines in [Mistretta]{.underline},
488 U.S. at 361.

Indeed, the complex task of gathering and analyzing the necessary facts
to develop more specific rules is particularly suited to the
administrative rule-making process. Prior to issuing the regulations
implementing title III, the Department of Justice held four public
hearings across the nation at which 329 persons testified. 56 Fed. Reg.
35,544 (1991). In addition, the Department solicited comments through
its rulemaking process and received hundreds of comments containing over
10,000 pages of information. [Id.]{.underline} The Department reviewed
all of these comments and took them into account in formulating the
final regulation. [Id.]{.underline} at 35,545. The Supreme Court has
observed that it is just these sorts of \"intricate, labor-intensive
task\[s\]\" and the related discretionary authority to draw from these
efforts that are particularly appropriate for delegation.
[Mistretta]{.underline}, 488 U.S. at 379.[^24]

> D. [TITLE III PROVIDES A SUFFICIENTLY PRECISE STANDARD OF CONDUCT AND,
> THEREFORE, IS NOT UNCONSTITUTIONALLY VAGUE.]{.underline}

Title III of the ADA, a civil statute regulating commercial conduct, can
successfully be challenged as unconstitutionally vague in violation of
the Due Process Clause only if it specifies \"no standard of conduct . .
. at all.\" [Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc.]{.underline}, 455 U.S. 489 & n.7 (l982); [see]{.underline}
[Boutilier v. INS]{.underline}, 387 U.S. 118, 121 (1967) (to violate due
process, a statute must be \"so vague and indefinite as really to be no
rule or standard at all\") (quoting [A.B. Small Co. v. American Sugar
Refining Co.]{.underline}, 267 U.S. 233, 239 (1925)). IHOP mistakenly
bases its vagueness argument on the higher standard that is applicable
only to statutes that, unlike title III, prescribe criminal penalties or
reach constitutionally protected speech.[^25] As the Supreme Court ruled
in [Hoffman Estates]{.underline}:

> \[E\]conomic regulation is subject to a less strict vagueness test
> because its subject matter is often more narrow, and because
> businesses, which face economic demands to plan behavior carefully,
> can be expected to consult relevant legislation in advance of action.
> . . . Indeed the regulated enterprise may have the ability to clarify
> the meaning of the regulation by its own inquiry, or by resort to an
> administrative process.

455 U.S. at 498; [see also]{.underline} [Grayned v. City of
Rockford]{.underline}, 408 U.S. 108, 109 (1972); [Chalmers v. City of
Los Angeles]{.underline}, 762 F.2d 753, 757 (9th Cir. 1985).

Title III of the ADA covers millions of different kinds and sizes of
businesses in large and small communities all across the country.
Congress opted for flexible language in the statute to allow for
sensible and fair application to this myriad group of covered entities.
In addressing vagueness challenges, courts have recognized the
difficulties legislatures face in drafting statutes \-- to make them
precise enough to afford fair notice of the prohibited conduct, yet
broad enough to reach a variety of situations, many of which cannot be
anticipated at the time of drafting. As the Supreme Court stated:

> \[M\]ost statutes must deal with untold and unforeseen variations in
> factual situations, and the practical necessities of discharging the
> business of government inevitably limit the specificity with which
> legislators can spell out prohibitions . . . .

[Boyce Motor Lines v. United States]{.underline}, 342 U.S. 337, 340
(1952); [see]{.underline} [Colten v. Kentucky]{.underline}, 407 U.S.
104, 110 (1972); [Fowler v. Board of Educ.]{.underline}, 819 F.2d 657,
664 (6th Cir. 1987), [cert. denied]{.underline}, 484 U.S. 986 (1987).

Statutes similar to and less specific than the ADA have been upheld in
the face of vagueness challenges. For instance, in [Boyce Motor
Lines]{.underline}, the Supreme Court upheld a criminal statute
requiring truck drivers who carry explosives or flammable liquids to
avoid driving into congested thoroughfares \"so far as practicable, and
where feasible.\" 342 U.S. at 339. The [Boyce Motor Lines]{.underline}
Court found the words \"so far as practicable, and where feasible\" to
be capable of common understanding, even under the more rigorous
standard of specificity required of statutes with criminal penalties.
[Id.]{.underline} at 340-42. The ADA, which uses similarly flexible
language, and which contains far more explanation and illustration than
the criminal statute at issue in [Boyce]{.underline}, certainly
satisfies the more lenient standard applicable to civil statutes.

The statutory language of title III is itself readily understandable,
and the meaning of the statute is further amplified by the regulation
issued by the Attorney General pursuant to statutory mandate. 42 U.S.C.
§ 12186(b) (Supp. II 1990); 28 C.F.R. pt. 36, at 457 (1991).
Administrative regulations and interpretations may provide sufficient
clarification for statutes that might otherwise be deemed vague. [United
States v. Schneiderman]{.underline}, 968 F.2d 1564, 1568 (2d Cir. 1992),
[cert. denied]{.underline}, 113 S. Ct. 1283 (1993); [see,
e.g.]{.underline}, [Hoffman Estates]{.underline}, 455 U.S. at 502, 504;
[Fleming v. USDA]{.underline}, 713 F.2d 179, 184 (6th Cir. 1983); [Rath
Packing Co. v. M.H. Becker]{.underline}, 530 F.2d 1295, 1299 (9th Cir.
1975), [aff\'d sub nom. Jones v. Rath Packing Co.]{.underline}, 430 U.S.
519, [cert. denied]{.underline}, 430 U.S. 954, [reh\'g
denied]{.underline}, 431 U.S. 925 (1977). In reviewing a statute for
vagueness, a Federal court must consider limiting constructions
proffered by an enforcing agency. [Hoffman Estates]{.underline}, 455
U.S. at 494 n.5; [Ward v. Rock Against Racism]{.underline}, 491 U.S.
781, 795 (1989).

We demonstrate below that each of the terms challenged by IHOP is
sufficiently clear to meet the constitutional standards based on the
statutory language itself, its legislative history, and the implementing
regulation. The preamble accompanying the regulation provides further
explication and, frequently, examples of the type of conduct required.
[See]{.underline} 28 C.F.R. pt. 36, app. B, at 566 (1991).[^26]

> **1. Readily Achievable Barrier Removal**

Title III requires existing places of public accommodation to remove
architectural barriers to access, where such removal is \"readily
achievable.\" 42 U.S.C. § 12182(b)(2)(A)(iv) (Supp. II 1990). Statutes
with language similar to the \"readily achievable\" standard, with no
further definition of the phrase, have been upheld in the face of
vagueness challenges, even under the higher scrutiny required for
criminal statutes. [See, e.g.]{.underline}, [West Virginia Mfrs. Ass\'n
v. West Virginia]{.underline}, 714 F.2d 308, 314 (4th Cir. 1983)
(\"readily visible\"); [United States v. Felsen]{.underline}, 648 F.2d
681, 683 (10th Cir. 1981) (\"readily attachable\"), [cert.
denied]{.underline}, 484 U.S. 861 (1981); [United States v.
Catanzaro]{.underline}, 368 F. Supp. 450 (D. Conn. 1973) (\"readily
restor\[able\]\").

In contrast to the statutes upheld in those cases, title III and its
regulation provide a definition, factors to consider, and many examples
of the \"readily achievable\" standard. \"Readily achievable\" is
defined in the statute as \"easily accomplishable and able to be carried
out without much difficulty or expense.\" 42 U.S.C. § 12181(9) (Supp. II
1990). The statute itself enumerates factors to consider when
determining if an action is readily achievable:

> \(A\) the nature and cost of the action needed under this Act;
>
> \(B\) the overall financial resources of the facility or facilities
> involved in the action; the number of persons employed at such
> facility; the effect on expenses and resources, or the impact
> otherwise of such action upon the operation of the facility;
>
> \(C\) the overall financial resources of the covered entity; the
> overall size of the business of a covered entity with respect to the
> number of its employees; the number, type, and location of its
> facilities; and
>
> \(D\) the type of operation or operations of the covered entity,
> including the composition, structure, and functions of the workforce
> of such entity; the geographic separateness, administrative or fiscal
> relationship of the facility or facilities in question to the covered
> entity.

[Id.]{.underline}[^27]

In addition to the statutory explication and the legislative history,
the Federal regulation further elucidates the term \"readily
achievable\" by adding other factors to consider.[^28] In addition, and
perhaps most significantly, the regulation lists 21 examples of barrier
removal likely to be \"readily achievable\" in many circumstances.[^29]
Finally, the preamble to the regulation, published with the regulation,
provides even more analysis and explanation:

> The list of factors . . . reflects the congressional intention that a
> wide range of factors be considered in determining whether an action
> is readily achievable. It also takes into account that many local
> facilities are owned or operated by parent corporations or entities
> that conduct operations at many different sites. This section makes
> clear that, in some instances, resources beyond those of the local
> facility where the barrier must be removed may be relevant in
> determining whether an action is readily achievable. One must also
> evaluate the degree to which any parent entity has resources that may
> be allocated to the local facility.

28 C.F.R. § 36.104, app. B, at 576-77 (1991) (definition of \"readily
achievable\").

The preamble to the title III regulation also explains that the ADA uses
a general standard for barrier removal because a more specific financial
standard would contravene the goals of the ADA:

> \[T\]he Department has declined to establish in the final rule any
> kind of numerical formula for determining whether an action is readily
> achievable. It would be difficult to devise a specific ceiling on
> compliance costs that would take into account the vast diversity of
> enterprises covered by the ADA\'s public accommodations requirements
> and the economic situation that any particular entity would find
> itself in at any moment.

[Id.]{.underline} § 36.104, app. B, at 577.[^30]

The \"readily achievable\" standard for barrier removal in existing
facilities is thus intended to be flexible so as not to be unduly
burdensome for businesses covered by title III. It is clear, however,
that this standard, as defined in the statute and the regulation, is
sufficiently precise to withstand constitutional scrutiny.

> **2. Alternatives to Barrier Removal**

The ADA provides that where barrier removal is not readily achievable, a
covered entity must make its goods or services available through
\"alternative methods if such methods are readily achievable.\" 42
U.S.C. § 12182(b)(2)(A)(v) (Supp. II 1990). IHOP asserts that the phrase
\"alternative methods\" is vague because \"readily achievable\" is vague
and the two are \"inextricably attached,\" and because Congress did not
define \"alternative methods\" in its debates or reports.

First, as we have demonstrated above, \"readily achievable\" is not
unconstitutionally vague. In addition, the legislative history, the
title III regulation, and the preamble all provide specific and easily
understood examples of appropriate alternatives to barrier removal \--
providing curb service or home delivery, coming to the door of the
facility to handle transactions, serving beverages at a table for
persons with disabilities where a bar is inaccessible, providing
assistance to retrieve items from inaccessible shelves, relocating
services and activities to accessible locations. Senate Report at 66; 28
C.F.R. § 36.305(b), at 467-68, app. B, at 599 (1991).[^31] As these
examples make clear, title III\'s \"alternative methods\" requirement
allows creativity and flexibility in providing access to people with
disabilities, but is not unconstitutionally vague.

> **3. Reasonable Modifications of Policies and Procedures**

Public accommodations are required to:

> make reasonable modifications in policies, practices, or procedures,
> when such modifications are necessary to afford such goods, services .
> . . to individuals with disabilities, unless the entity can
> demonstrate that making such modifications would fundamentally alter
> the nature of such goods, services, facilities, privileges,
> advantages, or accommodations being offered.

42 U.S.C. § 12182(b)(2)(A)(ii) (Supp. II 1990). IHOP argues that the
phrases \"reasonable modifications\" and \"fundamentally alter\" are
unconstitutionally vague.

Like the readily achievable standard for barrier removal, the reasonable
modification requirement for policies and procedures was designed to be
flexible so that it could apply in a sensible and fair way to many
different kinds of situations. The term \"reasonable\" has been
recognized by the courts as an easily understood phrase. [See,
e.g.]{.underline}, [Bandini Petroleum Co. v. Superior Court of
Cal.]{.underline}, 284 U.S. 8, 18 (1931) (statute prohibiting
\"unreasonable waste of gas\" upheld, with acknowledgment of the need
for flexibility in applying the statute); [Edgar A. Levy Leasing Co. v.
Siegel]{.underline}, 258 U.S. 242, 250 (1922) (Court found \"unjust and
unreasonable\" rent to be \"as definite as the \'just compensation\'
standard adopted in the Fifth Amendment . . . and therefore . . .
sufficiently definite to satisfy the Constitution\"); [Harris v.
Lukhard]{.underline}, 733 F.2d 1075, 1080 (4th Cir. 1984) (\"reasonable
effort\" and \"unreasonable loss\" found sufficiently precise).

The title III regulation and preamble provide several illustrations of
\"reasonable modifications.\" For example, stores in which all of the
checkout aisles are not accessible would be required to ensure that an
adequate number of accessible checkout aisles are left open at all
times. [See]{.underline} 28 C.F.R. § 36.302(d), at 465 (1991).
Similarly, facilities that do not permit entry to animals would be
required to modify such polices with regard to service animals used by
people with disabilities. [Id.]{.underline} § 36.302(c), at 465.

The concept of \"fundamental alteration\" is not confusing or complex.
Nor is it new with the ADA. The term was first articulated in
[Southeastern Community College v. Davis]{.underline}, 442 U.S. 397
(1979), a decision construing section 504 of the Rehabilitation Act of
1973, which prohibits discrimination on the basis of disability in
federally assisted or operated programs or activities. In
[Davis]{.underline}, the Court concluded that programs did not
discriminate if they failed to make accommodations that would
\"fundamentally alter\" the nature of the program. [Id.]{.underline} at
409. The preamble to the title III regulation also contains an
explanation of fundamental alteration:

> The rule does not require modifications to the legitimate areas of
> specialization of service providers. Section 36.302(b) provides that a
> public accommodation may refer an individual with a disability to
> another public accommodation, if that individual is seeking, or
> requires, treatment or services outside of the referring public
> accommodation\'s area of specialization, and if, in the normal course
> of its operations, the referring public accommodation would make a
> similar referral for an individual without a disability who seeks or
> requires the same treatment or services.
>
> For example, it would not be discriminatory for a physician who
> specializes only in burn treatment to refer an individual who is deaf
> to another physician for treatment of an injury other than a burn
> injury. To require a physician to accept patients outside of his or
> her specialty would fundamentally alter the nature of the medical
> practice and, therefore, not be required by this section.

28 C.F.R. pt. 36, app. B, at 592 (1991); [see also]{.underline} Senate
Report at 62-63; Technical Assistance Manual at 22-24, 27, and Supp.
1993 at 4 (explanation of reasonable modifications and fundamental
alteration). As the regulation and the corresponding explanations in the
preamble make clear, then, the terms \"reasonable modifications\" and
\"fundamental alteration\" are readily understandable and are not
unconstitutionally vague.

> **4. Most Integrated Setting Appropriate**

Title III requires covered entities to afford their goods and services
to an individual with a disability \"in the most integrated setting
appropriate to the needs of the individual.\" 42 U.S.C. § 12182(b)(1)(B)
(Supp. II 1990). IHOP asserts that this requirement is unconstitutional,
although it fails to explain why it believes so.

The statute\'s language is easily understandable, and obviously
indicates that a public accommodation must serve persons with
disabilities integrated among other persons, as long as the integration
serves the needs of the person with the disability. In addition, once
again, the title III regulation provides illustration of this provision.
The preamble to the title III regulation contains two pages of examples
and explanation, including the following:

> The ADA recognizes that the provision of goods and services in an
> integrated manner is a fundamental tenet of nondiscrimination on the
> basis of disability. Providing segregated accommodations and services
> relegates persons with disabilities to the status of second-class
> citizens. For example, it would be a violation of this provision to
> require persons with mental disabilities to eat in the back room of a
> restaurant or to refuse to allow a person with a disability the full
> use of a health spa because of stereotypes about the person\'s ability
> to participate.

28 C.F.R. pt. 36, app. B, at 581 (1991) (discussing the \"integrated
settings\" requirement of regulation § 36.203).[^32] The legislative
history further illustrates this provision, explaining, for example,
that the \"integrated settings\" provision is intended to prevent
segregation based on fears and stereotypes about persons with
disabilities. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II, at 102
(1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. 327, 385 (\"House
Report, Pt. II\"); [see also]{.underline} [id.]{.underline} pt. III, at
56-57 (1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. 327, 479-80
(\"House Report, Pt. III\").

> **5. Undue Burden**

Title III requires public accommodations to provide auxiliary aids and
services necessary to afford its services to persons with disabilities,
unless to do so would pose an \"undue burden\" to the covered entity or
would \"fundamentally alter\" the nature of its goods or services. 42
U.S.C. § 12181(b)(2)(A)(iii) (Supp. II 1990). IHOP claims that the term
\"undue burden\" is unconstitutionally vague.[^33]

The legislative history explains that \"undue burden\" is analogous to
the phrase \"undue hardship\" used in the employment title of ADA and is
derived from section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794 (1973). Senate Report at 63; [see also]{.underline} [Southeastern
Community College v. Davis]{.underline}, 442 U.S. 397, 412 (1979). The
legislative history also explains, as noted above, that this is a higher
standard than \"readily achievable.\"

\"Undue burden\" is defined in the regulation as a \"significant
difficulty or expense.\" 28 C.F.R. § 36.104, at 461 (1991) (definition
of \"undue burden\"). The regulation lists factors for determining
whether a particular action will create an undue burden; these are the
same as those to be used in assessing whether an action is \"readily
achievable.\" [Id.]{.underline} The preamble clarifies that:

> \"\[R\]eadily achievable\" is a lower standard than \"undue burden\"
> in that it requires a lower level of effort on the part of the public
> accommodation.
>
> and
>
> \[A\] public accommodation is not required to provide any particular
> aid or service that would result in either a fundamental alteration in
> the nature of the goods, services, facilities, privileges, advantages,
> or accommodations offered or in an undue burden. Both of these
> statutory limitations are derived from caselaw under section 504 \[of
> the Rehabilitation Act of 1973\] and are to be applied on a
> case-by-case basis . . . .

[Id.]{.underline}, app. B, 576, 595 (discussing definition of \"undue
burden\" in § 36.104).[^34]

Language similar to \"undue burden\" has been upheld, even where the
statute provided no definition of the term and no list of factors to
consider in making the determination. [See]{.underline} [Jackson Court
Condominiums, Inc. v. City of New Orleans]{.underline}, 665 F. Supp.
1235, 1242 (E.D. La. 1987), [aff\'d]{.underline}, 874 F.2d 1070 (5th
Cir. 1989) (rejecting a vagueness challenge to a zoning ordinance that
allowed for variances upon a showing of \"undue hardship\").

> **6. Full and Equal Enjoyment and Opportunity to Participate**

Title III\'s general prohibition against discrimination provides as
follows:

> No 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 . . . .

42 U.S.C. § 12182(a) (Supp. II 1990). IHOP claims that the phrase \"full
and equal enjoyment\" is impermissibly vague.

The challenged phrase is a simple concept commonly used in civil rights
statutes.[^35] Affording \"full and equal enjoyment\" clearly
comprehends that persons with disabilities are not to be provided only a
portion of the goods and services provided to others or lesser goods and
services. The legislative history explains that

> \'Full and equal enjoyment\' does not encompass the notion that
> persons with disabilities must achieve the identical result or level
> of achievement of nondisabled persons, but does mean that persons with
> disabilities must be afforded equal opportunity to obtain the same
> result.

Senate Report at 60. Moreover, the next subsection of the statute
further defines the general rule. Entitled \"Construction,\" it
enumerates categories of actions that constitute discrimination \"in the
full and equal enjoyment\" of goods and services.[^36]

IHOP also challenges as vague one of the subsections of the general
rule, which provides:

> \(i\) DENIAL OF PARTICIPATION.\--It shall be discriminatory to subject
> an individual or class of individuals on the basis of a disability or
> disabilities of such individual or class, . . . to a [denial of the
> opportunity of the individual . . . to participate in]{.underline} or
> benefit from the goods, services, facilities, privileges, advantages,
> or accommodations of an entity.

42 U.S.C. §§ 12182(b)(1)(A)(i) (Supp. II 1990) (emphasis added to
specific terms IHOP has claimed are impermissibly vague). Similar to the
general rule cited above, this provision is simple language, capable of
common understanding. The prohibition on denying individuals with
disabilities an \"opportunity to participate in or benefit from\" the
goods or services of a covered entity obviously means that persons with
disabilities are not to be excluded from receiving the goods or services
of a place of public accommodation.

The title III regulation contains further explanation and examples. The
preamble explains that denial of participation means:

> A public accommodation may not exclude persons with disabilities on
> the basis of disability for reasons other than those specifically set
> forth in this part. For example, a public accommodation cannot refuse
> to serve a person with a disability because its insurance company
> conditions coverage or rates on the absence of persons with
> disabilities.

28 C.F.R. § 36.202, app. B, at 580 (1991) (setting forth general forms
of discrimination prohibited by § 36.202).[^37]

> E. [TITLE III OF THE ADA DOES NOT EFFECT AN UNCONSTITUTIONAL TAKING
> WITHOUT JUST COMPENSATION.]{.underline}

The Fifth Amendment to the Constitution prohibits the Federal government
from taking private property \"for public use, without just
compensation.\" U.S. CONST. amend. V. The ADA requirements challenged by
IHOP do not violate this constitutional command. An unconstitutional
taking occurs only where a statute or ordinance \"does not substantially
advance legitimate State interests, or denies the owner economically
viable use of the land.\" [Agins v. City of Tiburon]{.underline}, 447
U.S. 255, 260 (1979); [See also]{.underline} [Hodel v.
Virginia]{.underline} [Surface Mining and Reclamation
Ass\'n]{.underline}, 452 U.S. 264, 296-97 (1981); [Furey v. City of
Sacramento]{.underline}, 780 F.2d 1448, 1457 (9th Cir. 1986); [Trustees
for Alaska v. EPA]{.underline}, 749 F.2d 549, 559 (9th Cir. 1984). The
Supreme Court has repeatedly stated that such an analysis must be made
on an individual ad hoc factual basis. [See, e.g.]{.underline},
[Goldblatt v. Town of Hempstead]{.underline}, 369 U.S. 590, 595 (1962).

Title III of the ADA requires existing places of public accommodation,
such as IHOP, to remove architectural barriers that impede or prevent
access to such facilities by persons with disabilities, as well as
communications barriers that are structural in nature, to the extent
that such removal is \"readily achievable,\" which means \"able to be
carried out without much difficulty or expense.\" 42 U.S.C. §§ 12182,
12181(9) (Supp. II 1990). As so defined, the \"readily achievable\"
standard of performance can never so diminish or destroy the value of a
covered entity\'s property, nor have such a grave economic impact on
property, as to ever constitute an unconstitutional taking without just
compensation within the meaning of the Fifth Amendment.

The ADA was designed to strike a balance that looks to the future \--
all new construction of and alterations to places of public
accommodation are required to comply strictly with the ADA Standards for
Accessible Design. 42 U.S.C. §§ 12183, 12186(b), 12186(c) (Supp. II
1990); 28 C.F.R. 36.406, at 474 (1991). This obligation is imposed
without regard to cost factors because Congress found that incorporating
accessibility features at the design stage for alterations and new
construction added little to the overall cost. Senate Report at 89.
However, Congress recognized that retrofitting existing facilities to
improve accessibility could be expensive, sometimes extraordinarily so.
[Id.]{.underline} at 65. Accordingly, Congress imposed the \"readily
achievable\" standard, which explicitly limits an entity\'s obligation
to remove barriers based on the cost of retrofitting and the resources
of the entity involved. 42 U.S.C. § 12181(9) (Supp. II 1990).

Businesses are thus required to remove barriers to access in existing
facilities in accordance with their different resources, capabilities,
and circumstances.[^38] The \"readily achievable\" standard was designed
to require \"minimal investment with a potential return of profit from
use by disabled patrons, often more than justifying the small expense.\"
Senate Report at 66.

IHOP\'s argument regarding an unconstitutional taking reflects a total
misunderstanding of the statute. IHOP\'s analysis proceeds from a
factual premise that compliance with the barrier removal requirement
would absolutely require from \$32,500 to \$104,500 in renovations to
restrooms that could also cause the loss of approximately twenty seating
places for customers. (IHOP Mem. at 7-8). Although IHOP does not provide
information about its resources, IHOP claims that such costs will have a
\"tremendous\" economic impact and will \"destroy\" its reasonable
business expectations (IHOP Mem. at 39-40). This Court must eventually
determine, based on a full development of the record, whether IHOP\'s
cost estimates and assessments of impact on its business are accurate.
If barrier removal would in fact have a dramatic deleterious effect on
IHOP\'s business, such modifications would not be required under the
\"readily achievable\" standard.[^39]

Because IHOP\'s argument is premised on a misunderstanding of title
III\'s legal requirements, its contention that title III effects an
unconstitutional taking without compensation is fundamentally flawed as
well.

In a landmark case on takings, the Supreme Court set forth factors to be
considered when determining whether an unconstitutional regulatory
taking has occurred:

> The economic impact of the regulation on the claimant and,
> particularly, the extent to which the regulation has interfered with
> distinct investment-backed expectations are, of course, relevant
> considerations. So, too, is the character of the governmental action.

[Penn Cent. Transp. Co. v. City of New York]{.underline}, 438 U.S. 104,
124 (1978). While courts do not always explicitly rely on the entire
[Penn Central]{.underline} test, the factors it sets forth are accepted
as those appropriately considered in a regulatory takings analysis.
[See]{.underline} [Lucas v. South Carolina Coastal Council]{.underline},
112 S. Ct. 2886, 2895 n.8 (1992). We examine title III of the ADA in
light of each of these factors.

1\. To constitute a taking, the economic impact of a challenged statute
must be extreme, to the point of denying the claimant any economically
viable use of the property. [United States v. Riverside Bayview Homes,
Inc.]{.underline}, 474 U.S. 121, 126 (1985). A showing that there is
merely [some]{.underline} adverse economic impact is inadequate.[^40] As
Justice Brennan stated,

> Government regulation - by definition - involves the adjustment of
> rights for the public good. Often this adjustment curtails some
> potential for the use or economic exploitation of private property. To
> require compensation in all such circumstances would effectively
> compel the government to regulate by [purchase]{.underline}.

[Andrus v. Allard]{.underline}, 444 U.S. 51, 65 (1979); [Pennsylvania
Coal Co. v. Mahon]{.underline}, 260 U.S. 393, 412 (1922).

The barrier removal requirement in title III can [never]{.underline}
have so severe an impact as to deprive a covered entity of any
economically viable use of its property because, as we have explained,
barrier removal is governed by the flexible \"readily achievable\"
standard \-- expressly tied to the costs involved in making changes and
the resources of the business. The statute simply does not require a
covered entity to take steps that are so costly or difficult as to cause
a devastating economic impact. House Report, pt. III, at 61-62.

As discussed, IHOP misconstrues title III\'s requirements, but even in
its best light, IHOP\'s argument is inadequate to demonstrate that a
taking has occurred. In [Pennsylvania Coal Co.]{.underline}, the Supreme
Court found that a statute forbidding the removal of anthracite coal, in
instances where such removal would cause subsidence of the property
above the coal mines, resulted in an unconstitutional taking because it
would destroy the \"previously existing rights\" of a coal company that
owned only the right to the coal. 260 U.S. at 413. Among the reasons for
the Court\'s decision was its finding that the company owned only the
right to mine coal and such mining had been made \"commercially
impracticable\" by the statute.[^41]

In this case, IHOP asserts only that accessibility modifications will be
expensive and that they may result in some lost office and dining space.
Nowhere does IHOP claim that the existing operations of the restaurant
would no longer be financially viable. A taking does not occur just
because a property holder is prohibited from using his or her property
in the manner that would be most profitable. [Lai v. City and County of
Honolulu]{.underline}, 841 F.2d 301, 303 (9th Cir. 1988) (no taking
found when creation of scenic easement prevented construction of a
high-rise condominium); [Rymer v. Douglas County]{.underline}, 764 F.2d
796, 801 (11th Cir. 1985) (no taking occurred when owners of plot of
land approved and purchased for residential use were denied permission
to install septic tanks, making residential use impossible); [see
also]{.underline} [Goldblatt]{.underline}, 369 U.S. at 592.

As these cases make clear, requiring property owners to discontinue or
substantially alter their intended use of the property affected does not
amount to an unconstitutional taking. A taking occurs only when the
government makes all uses of the property economically infeasible. Title
III has no such impact. The barrier removal obligation in title III does
not require any action that would force IHOP to abandon its operations
or make such operations economically infeasible.

2\. Title III\'s barrier removal requirement does not cause an adverse
impact on reasonable investment-backed expectations sufficient to effect
an unconstitutional taking. As the Supreme Court has stated,

> \[L\]oss of future profits - unaccompanied by any physical property
> restriction - provides a slender reed upon which to rest a takings
> claim. . . . \[P\]erhaps because of its very uncertainty, the interest
> in anticipated gains has traditionally been viewed as less compelling
> than other property-related interests.

[Andrus]{.underline}, 444 U.S. at 66; [Park Ave. Tower Assocs. v. City
of New York]{.underline}, 746 F.2d 135, 139 (2d Cir. 1984) (quoting
[Andrus]{.underline}, 444 U.S. at 66), [see also]{.underline} [Usery v.
Turner Elkhorn Mining Co.]{.underline}, 428 U.S. 1, 14-20 (1976).

IHOP argues that the ADA adversely affects its reasonable
investment-backed expectations because the statute applies to it as an
existing business operation that complied fully with all applicable laws
and regulations at the time of construction. This \"existing facility\"
argument finds no support in the case law. Takings do not occur simply
because legislation applies to existing operations that have previously
been operating in a legal manner. [Everard\'s Breweries v.
Day]{.underline}, 265 U.S. 545 (1924); [Jacob Ruppert, Inc. v.
Caffey]{.underline}, 251 U.S. 264 (1920).[^42] This is true even if the
new law frustrates all of the owner\'s previous and intended uses for
the property, as long as the property remains economically viable for
[some]{.underline} purpose.[^43]

Here, of course, the ADA effects no change at all in the use of any
facility covered by title III. Restaurants, like IHOP, can continue to
operate as restaurants. Indeed, it is anticipated that covered
businesses will not only continue to operate as they have, but will
become more profitable as they reach new customers by making their
facilities accessible to the forty-three million persons with
disabilities. Senate Report at 66.

3\. The ADA also withstands scrutiny under the third [Penn
Central]{.underline} factor \-- \"the character of the government
action.\" A takings violation does not occur if the statutory
requirement at issue advances the underlying purpose of the
statute.[^44]

The barrier removal requirement in title III advances the stated
purposes of the ADA \--

> \(1\) to provide a clear and comprehensive national mandate for the
> elimination of discrimination against individuals with disabilities;
> \[and\]
>
> \(2\) to provide clear, strong, consistent, enforceable standards
> addressing discrimination against individuals with disabilities.

42 U.S.C. § 12101 (b)(1) & (2) (Supp. II 1990).

Congressional concern over the deleterious effects of discrimination
against people with disabilities is clearly set forth in the legislative
history.

> The large majority of people with disabilities do not go to movies, do
> not go to the theater, do not go to see musical performances, and do
> not go to sports events. A substantial minority of persons with
> disabilities never go to a restaurant, never go to a grocery store,
> and never go to a church or synagogue. . . . The extent of
> non-participation of individuals with disabilities in social and
> recreational activities in \[sic\] alarming.

Senate Report at 11 (citing the findings of a recent Lou Harris poll
summarized by the National Council on Disability).

Congressional hearings revealed that the \"lack of physical access to
facilities\" was a major cause of the exclusion of individuals with
disabilities. Senate Report at 11. With respect to existing facilities,
Congress realized that it would be \"appropriate to require modest
changes\" to make such facilities accessible to people with
disabilities. [Id.]{.underline} The barrier removal requirements at
issue here were the result. Plainly, they serve the purposes of the
statute.[^45]

> F. [TITLE III IS NOT RETROACTIVE LEGISLATION.]{.underline}

Title III mandates changes in the way existing places of public
accommodation do business, but it imposes no liability for pre-Act
conduct and, accordingly, is not retroactive and does not violate the
Due Process Clause. \"The determination of whether a statute\'s
application in a particular situation is prospective or retroactive
depends upon whether the conduct that allegedly triggers the statute\'s
application occurs before or after the law\'s effective date.\"
[McAndrews v. Fleet Bank]{.underline}, 989 F.2d 13, 16 (1st Cir. 1993);
[see also]{.underline} [FDIC v. Faulkner]{.underline}, 991 F.2d 262 (5th
Cir. 1993), [reh\'g denied]{.underline}, Jun. 30, 1993 WL.

The title III provisions applicable to existing places of public
accommodation impose no liability or penalty for conduct occurring prior
to the effective date of the\
statute.[^46] An existing restaurant facility, for example, cannot be
held liable under title III for having had doorways too narrow for
persons who use wheelchairs to enter or for having refused to serve
persons with mental retardation, prior to January 26, 1992. Liability
can attach under title III only if such a facility has failed, after
that date, to widen the doorway where it would be readily achievable to
do so, or to continue to refuse service to persons with mental
retardation. Title III does not alter the legal consequences of conduct
occurring before the statute\'s effective date and it is, therefore, not
retroactive legislation.[^47]

Title III is not retroactive, nor does it contravene the Due Process
Clause, as IHOP seems to suggest, simply because it imposes new
obligations on existing businesses. To accept IHOP\'s due process theory
would absolutely paralyze Congress in any effort to regulate in the
commercial arena; it could only act with respect to new businesses
coming into existence. The Due Process Clause does not so drastically
circumscribe congressional power. IHOP, and other existing businesses,
have no due process [right]{.underline} to continue to do business
unencumbered by new obligations that may be imposed by Congress.

This point is well illustrated by [Federal Housing Administration v.
Darlington, Inc.]{.underline}, 358 U.S. 84 (1958), [reh\'g
denied]{.underline}, 358 U.S. 937 (1959). In that case the Court struck
down a due process challenge to a statute which directed the Federal
Housing Administration (\"FHA\") to insure mortgages only for strictly
residential (not transient) housing. The Court held that the requirement
could be constitutionally applied to an existing apartment facility with
some transient units that was already mortgaged under the FHA program.
The Court noted that the amended statute was only prospective in effect
as it did not penalize the owner for past conduct. Furthermore, as the
Court stated:

> \[F\]ederal regulation of future action based upon rights previously
> acquired by the person regulated is not prohibited by the
> Constitution. So long as the Constitution authorizes the subsequently
> enacted legislation, the fact that its provisions limit or interfere
> with previously acquired rights does not condemn it.

358 U.S. at 91 (quoting [Fleming v. Rhodes]{.underline}, 331 U.S. 100,
107 (1947)); [see also]{.underline} [United States v. Manufacturers
Nat\'l Bank]{.underline}, 363 U.S. 194, 200 (1960); [Cox v.
Hart]{.underline}, 260 U.S. 427, 435 (1922).

**V. CONCLUSION**

For the foregoing reasons, the Court should enter an order denying
IHOP\'s motion for summary judgment, granting the United States\'
cross-motion for summary judgment on IHOP\'s counterclaim, and declaring
that title III of the ADA:

> A. is a constitutional exercise of Congress\' power under the Commerce
> Clause that properly reaches restaurants, including IHOP;
>
> B. does not intrude on State sovereignty in violation of the Tenth
> Amendment;
>
> C. is not an unconstitutional delegation of legislative authority to
> the executive or judicial branch;
>
> D. is not unconstitutionally vague in violation of the Fifth
> Amendment;
>
> E. does not constitute an unconstitutional taking of property without
> compensation in violation of the Due Process Clause; and
>
> F. does not apply retroactively in violation of the Due Process
> Clause.

Respectfully submitted,

JAMES P. TURNER

Acting Assistant Attorney

General

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JAMES W. BRANNIGAN, JR. JOAN A. MAGAGNA

Unites States Attorney BEBE NOVICH

JOHN R. NEECE JOSEPH C. RUSSO

Assistant U.S. Attorney Attorneys

Chief, Civil Division Public Access Section

United States Courthouse Civil Rights Division

940 Front Street U.S. Department of Justice

Room 5-N-19 P.O. Box 66738

San Diego, Ca. 92189 Washington, D.C. 20035-6738

\(619\) 557-5662 (202) 307-0663

[^1]: ^?^ We take no position on the underlying merits of Pinnock\'s
    substantive ADA claim or IHOP\'s nonconstitutional defenses.

[^2]: ^?^ For the Court\'s convenience, the full text of the title III
    regulation and preamble, as published in the Federal Register, is
    attached as Exhibit A. 56 Fed. Reg. 35,544 (1991).

[^3]: ^?^ Throughout this memorandum, we cite the regulation
    implementing title III. This regulation was promulgated pursuant to
    statutory mandate, 42 U.S.C. § 12186(b) (Supp. II 1990), and,
    therefore, should be accorded \"controlling weight,\" unless found
    to be \"arbitrary, capricious, or plainly contrary to the statute.\"
    [United States v. Morton]{.underline}, 467 U.S. 822, 834 (1984);
    [see also]{.underline} [Chevron U.S.A., Inc. v. Natural Resources
    Defense Council, Inc.]{.underline}, 467 U.S. 837, 844 (1984).

[^4]: ^?^ Only the title III obligations imposed on existing, unaltered
    facilities are at issue in this action. Title III has additional
    requirements for alterations of existing facilities and for the
    construction of new facilities. [See]{.underline} 42 U.S.C. § 12183
    (Supp. II 1990).

[^5]: ^?^ We agree with IHOP that constitutional authority for title
    III\'s application to private business must be found in the Commerce
    Clause. ([See]{.underline} IHOP Mem. at 16). When it enacted the
    ADA, Congress invoked its powers under both the Fourteenth Amendment
    and the Commerce Clause because the Act imposes obligations upon
    both state actors (titles I and II) and private entities (titles I,
    III and IV). [See]{.underline} 136 CONG. REC. E1913 (1990)
    (statement by Rep. Hoyer). The Commerce Clause provides the
    authority for reaching the conduct of private entities under title
    III. [Id.]{.underline}

[^6]: ^?^ Declaration of Majid Zahedi, ¶ 9.

[^7]: ^?^ [See]{.underline} IHOP Corp. July 12, 1991 Prospectus
    (\"Prospectus\"), attached as Exhibit B, at 6;

[^8]: ^?^ [See]{.underline} IHOP Corp. 1992 Annual Report, attached as\
    Exhibit C, at inside cover, 2-3, 8.

[^9]: ^?^ [See]{.underline} Declaration of Sean M. Flynn (\"Flynn
    Declaration\"), attached as Exhibit D, ¶¶ 9-12.

[^10]: ^?^ [Id.]{.underline} ¶ 13.

[^11]: ^?^ [Id.]{.underline} ¶ 14.

[^12]: ^?^ Deposition of Majid Zahedi (\"Zahedi Dep.\") at 54-57, 61.
    Mr. Zahedi noted that he advertised at the hotel in order to attract
    its guests to IHOP. [Id.]{.underline} at 56. Copies of the
    referenced pages from the Zahedi Dep. are attached as Exhibit E.
    These pages and the complete copy of the transcript filed with the
    Court today were reproduced from an unsigned copy of the transcript
    provided by the court reporter. We have not yet received the signed
    deposition transcript from IHOP. IHOP\'s counsel promised to inform
    us of any changes to the transcript by July 9, 1993. Zahedi Dep. at
    299-300. At this time, IHOP\'s counsel has failed to notify us of
    any such changes and has not provided us with the signed copy.

[^13]: ^?^ [See]{.underline} Prospectus at 23; Zahedi Dep. at 41-42.
    IHOP Corp. spent \$9.4 million in advertising dollars in 1990.
    [See]{.underline} Prospectus at 22.

[^14]: ^?^ Zahedi Dep. at 43.

[^15]: ^?^ Zahedi Dep. at 57, 194-95; Flynn Declaration, ¶ 15.

[^16]: ^?^ IHOP\'s insurer, Farmer\'s Insurance, operates in 28 states.
    [See]{.underline} Zahedi Dep. at 202-07; Declaration of Timothy P.
    Leach, attached as Exhibit F, ¶¶ 4-5.

[^17]: ^?^ Most of the food IHOP serves, including some ingredients in
    its pancakes, its largest selling items, were procured by IHOP\'s
    distributors from outside California. The food items procured from
    out-of-state include all or the majority of: its meat products,
    including bacon, ham, hamburger, and chicken, [see]{.underline}
    Zahedi Dep. at 89-92; Declaration of John Renna, attached as Exhibit
    G, ¶¶ 5-6; its pancake syrups, [see]{.underline} Zahedi Dep. at
    83-86; Declaration of John Kocinski, attached as Exhibit I, ¶¶ 5,
    6d; its boxed pancake mixes, [see]{.underline} Declaration of Grace
    Guillory, attached as Exhibit H, ¶¶ 3-4; its coffee and tea,
    [see]{.underline} Zahedi Dep. at 83-85, 117-18; Kocinski Declaration
    (Exhibit I), ¶¶ 5, 6c, and Declaration of Sam Heron, attached as
    Exhibit J, ¶¶ 5-9; its potatoes and potato products,
    [see]{.underline} Zahedi Dep. at 96-99; Declaration of Dennis Moore,
    attached as Exhibit K, ¶¶ 4-6, 6a, 6d; and Declaration of Drew
    Russo, attached as Exhibit L, ¶¶ 4, 5, 5a, 5b, 5e; and its
    condiments, including Tabasco Sauce, ketchup, mustard, etc.,
    [see]{.underline} Zahedi Dep. at 131-45 and Renna Declaration
    (Exhibit G), ¶¶ 4-6, 6l-6n. In addition, the majority of IHOP\'s
    silverware and equipment bears labels indicating out-of-state
    manufacture. [See]{.underline} Flynn Declaration at 16-19.

[^18]: ^?^ [See also]{.underline} 136 CONG. REC. E1913 (1990) (statement
    of Rep. Hoyer) (\"Congress also, of course, has broad authority to
    pass antidiscrimination laws under the commerce clause . . . .\").

[^19]: ^?^ IHOP also argues that the Commerce Clause does not give
    Congress authority to regulate strictly [intra]{.underline}state
    activities that do not substantially affect interstate commerce. We
    quite agree. But we disagree with IHOP\'s suggestion that title III
    was intended to have such an overly broad scope. As stated above,
    title III uses the language of the Commerce Clause and states that
    it intends \"to invoke the sweep of congressional authority.\" 42
    U.S.C. § 12101(b)(4) (Supp. II 1990). Nothing in the ADA purports to
    go beyond such authority.

    Courts should construe a statute within constitutional limits if
    consistent with congressional intent. [See, e.g.]{.underline},
    [United States Civil Serv. Comm\'n v. National Ass\'n of Letter
    Carriers]{.underline}, 413 U.S. 548, 571 (1973); [United States v.
    Thirty-Seven Photographs]{.underline}, 402 U.S. 363, 368 (1971).

[^20]: ^?^ [See]{.underline} the statements of the Honorable Tony Coelho
    of California, introducing the original bill to the House of
    Representatives:

    > Our Society has been inadvertently structured in a way that
    > unnecessarily denies innumerable opportunities, great and small,
    > to people with disabilities, in ways that are never even noticed
    > by most Americans. Simple daily tasks, like visiting a grocery
    > store or the bank, [going to a restaurant]{.underline}, or a movie
    > . . . can become monumental tasks or impossible barriers to
    > overcome - not due to the actual physical or mental conditions of
    > disabled Americans, but due to prejudice, fears, and unnecessary
    > obstacles which have been placed in their path.

    134 CONG. REC. E1308 (1988) (statement of Rep. Coelho) (emphasis
    added); [see also]{.underline} 138 CONG. REC. S614 (1992) (statement
    of Sen. Durenberger).

[^21]: ^?^ The title III regulation adopted as its Standards for
    Accessible Design (\"Standards\") the ADA Accessibility Guidelines
    (\"ADAAG\") issued by the Architectural and Transportation Barriers
    Compliance Board (\"Access Board\"). [See]{.underline} 28 C.F.R. §
    36.304(d), at 467 (1991); 42 U.S.C. §§ 12186(b)-(c), 12204 (Supp. II
    1990).

[^22]: ^?^ Departures from the ADA Standards are expressly permitted
    where \"alternative designs and technologies used will provide
    substantially equivalent or greater access to and usability of the
    facility.\" 28 C.F.R. pt. 36, app. A, § 2.2, at 482 (1991).

[^23]: ^?^ Title III permits, but does not require, State and local
    governments to submit their building codes or ordinances to the
    Attorney General for a determination of whether they meet or exceed
    the minimum ADA requirements. 42 U.S.C. § 12188(b)(1)(A)(ii) (Supp.
    II 1990). If a favorable determination is reached after hearing and
    comment, the Attorney General will so certify. [Id.]{.underline} In
    subsequent enforcement proceedings, such certification \"shall be
    rebuttable evidence that such State law or local ordinance does meet
    or exceed the minimum requirements of this Act.\" [Id.]{.underline}

[^24]: ^?^ IHOP also argues (IHOP Mem. at 37) that Congress has
    improperly delegated authority to the judicial branch, because the
    courts interpreting title III will have to decide whether barrier
    removal is \"readily achievable\" or whether the provision of
    auxiliary aids and services is an \"undue burden\" in any given
    case. This is a frivolous argument. Interpreting statutes is
    precisely what courts are supposed to do. U.S. CONST. art. III, § 2.
    [United States v. American Trucking Ass\'ns, Inc.]{.underline}, 310
    U.S. 534, 543 (1940); [Hepburn v. Griswold]{.underline}, 75 U.S.
    603, 611 (1869).

[^25]: ^?^ For example, IHOP relies on [Keyishian v. Board of
    Regents]{.underline}, which involved a challenge to a regulation
    allowing \"treasonable or seditious\" utterances to be grounds for
    dismissal of university faculty members. 385 U.S. 589, 593 (1967).
    The Court emphasized the higher degree of specificity required in
    the regulations that reach protected speech. [Id.]{.underline} at
    603-04 (citing [NAACP v. Button]{.underline}, 371 U.S. 415, 432-33,
    438 (1963)). Similarly, [Baggett v. Bullitt]{.underline}, cited by
    IHOP, involved a statute requiring state employees to swear that
    they were not \"subversive,\" did not \"advocate\[\], abet\[\],
    advise\[\] or teach\[\]\" subversive activities, and were not a
    member of a \"subversive organization.\" 377 U.S. 360, 362 (1964).
    The [Baggett]{.underline} Court also noted the increased sensitivity
    a court must show to specificity in statutes infringing on speech.
    [Id.]{.underline} at 372-73 n.10.

[^26]: ^?^ The Attorney General, also pursuant to statutory mandate, has
    published a title III Technical Assistance Manual, providing even
    more explanation and illustration of all of the provisions
    challenged by IHOP. 42 U.S.C. §§ 12206(c)(3) & (d) (Supp. II 1990);
    U.S. Department of Justice, The Americans with Disabilities Act \--
    Title III Technical Assistance Manual (1992 & Supp. 1993)
    (\"Technical Assistance Manual\"). A copy of the Technical
    Assistance Manual is attached as Exhibit M to this memorandum. IHOP
    failed to consult the regulation or the Technical Assistance Manual,
    though their existence is plain from a reading of the statute.
    [See]{.underline} Zahedi Dep., at 214, 219.

[^27]: ^?^ The legislative history contains useful guidance for
    construing the \"readily achievable\" standard. The Senate Report,
    for example, points out that it is a lower standard than the \"undue
    burden\" standard in title III and the \"undue hardship\" standard
    in title I, which derived from section 504 of the Rehabilitation Act
    of 1973. S. Rep. No. 116, 101st Cong., 1st Sess. 65 (1989) (\"Senate
    Report\"). The Report further distinguishes \"readily achievable\"
    from \"readily accessible,\" a term used in another part of the
    statute. [Id.]{.underline} The Report also lists examples of the
    types of changes Congress believes would be readily achievable,
    including specific examples for small stores and restaurants \--
    rearranging tables and chairs, installing small ramps, grab bars in
    restrooms, \"and other such minor adjustments and additions.\"
    [Id.]{.underline} at 66.

[^28]: ^?^ The additional factors listed in the regulation are:

    \[1\] legitimate safety requirements that are necessary for safe
    operation, including crime prevention measures;

    \[2\] overall financial resources of any parent corporation or
    entity; the overall size of the parent corporation or entity with
    respect to the number of its employees; the number, type, and
    location of its facilities; and

    \[3\] the type of operation or operations of any parent corporation
    or entity, including the composition, structure, and functions of
    the workforce of the parent corporation or entity.

    28 C.F.R. § 36.104, at 460-61 (1991) (definition of \"readily
    achievable\").

[^29]: ^?^ Among the examples are: installing ramps, repositioning
    shelves and telephones, installing accessible door hardware,
    installing grab bars in toilet stalls. [See]{.underline}
    [id.]{.underline} § 36.304(b), at 466, & app. B, at 576-77.

[^30]: ^?^ [See]{.underline} [also]{.underline} Technical Assistance
    Manual at 29-32 (definition, factors, and examples of \"readily
    achievable barrier removal\").

[^31]: ^?^ See also the Technical Assistance Manual at 37-42 (describing
    \"alternative methods\").

[^32]: ^?^ [See also]{.underline} Technical Assistance Manual at 14-15
    (illustrating integrated and separate programs designed to meet the
    needs of persons with disabilities).

[^33]: ^?^ IHOP also challenges the term \"fundamental alteration,\"
    which is discussed earlier.

[^34]: ^?^ The regulation is supplemented by discussion in the Technical
    Assistance Manual, which provides explanations of both \"undue
    burden\" and \"fundamental alteration.\" [See]{.underline} Technical
    Assistance Manual at 27-28.

[^35]: ^?^ [See, e.g.]{.underline}, Civil Rights Act of 1964, 42 U.S.C.
    § 2000a(a) (1988) (\"All persons shall be entitled to the full and
    equal enjoyment of the goods . . . of any place of public
    accommodation . . . .\"); Fair Housing Act, 42 U.S.C. §
    3604(f)(3)(B) (1988) (discrimination includes failure to modify
    policies where \"necessary to afford such person equal opportunity
    to use and enjoy a dwelling\"); [id.]{.underline} § 3631 (rendering
    punishable retaliation against anyone \"participating lawfully in
    speech or peaceful assembly opposing any denial of the opportunity
    to so participate\"); [Roberts v. United States
    Jaycees]{.underline}, 468 U.S. 609, 610 (1984) (interpreting \"full
    and equal enjoyment\").

[^36]: ^?^ Those categories of discrimination are:

    > \(1\) denying to a person with a disability the opportunity to
    > participate in or benefit from the goods, services, facilities,
    > privileges, advantages, or accommodations offered by a place of
    > public accommodation;
    >
    > \(2\) affording a person with a disability an opportunity to
    > participate in or benefit from a good, service, facility,
    > privilege, advantage, or accommodation that is not equal to that
    > afforded to other individuals;
    >
    > \(3\) providing an individual with a disability with a good,
    > service, facility, privilege, advantage, or accommodation that is
    > different or separate from that provided to other individuals,
    > unless such action is necessary to provide the individual with a
    > good, service, facility, privilege, advantage or accommodation, or
    > other opportunity that is as effective as that provided to others.

    42 U.S.C. § 12182(b)(1)(A)(i) - (iii) (Supp. II 1990).

[^37]: ^?^ [See also]{.underline} Technical Assistance Manual at 13
    (\"Just as under the Civil Rights Act of 1964 a restaurant cannot
    refuse to admit an individual because of his or her race, under the
    ADA, it cannot refuse to admit an individual merely because he or
    she has a disability\").

[^38]: ^?^ The title III regulation lists 21 examples of steps that are
    likely to be readily achievable in many circumstances. None of these
    actions is likely to have a significant adverse effect on the
    property or the income of most existing public accommodations.
    [See]{.underline} 28 C.F.R. § 36.304(b), at 466 (1991).

[^39]: ^?^ We take no position on the accuracy of IHOP\'s cost estimates
    or assessments of the impact on its business. IHOP failed to respond
    to the United States\' discovery requests seeking information about
    IHOP\'s financial circumstances. [See]{.underline} Zahedi Dep. at
    289-91, 295-99.

[^40]: ^?^ IHOP bears the burden of proof on this issue. [Keystone
    Bituminous Coal Ass\'n v. DeBenedictis]{.underline}, 480 U.S. 470,
    485 (1987); [Lake Nacimiento Ranch v. County of San Luis
    Obispo]{.underline}, 841 F.2d 872, 877 (9th Cir. 1987).

[^41]: ^?^ Compare [Pennsylvania Coal Co.]{.underline} with the more
    recent decision in [Keystone Bituminous Coal]{.underline}, in which
    the Supreme Court upheld a similar coal mining restriction because
    it found that the restriction furthered a public interest (\"the
    public interest in health, the environment, and the fiscal integrity
    of the area\") and did not make use of the petitioners land
    economically inviable. 480 U.S. at 474.

[^42]: ^?^ This does not mean, of course, that in instances where
    government completely frustrates reasonable investment-backed
    expectations a taking will not be found to occur. This is especially
    true where government guarantees have created expectations which are
    then crushed by subsequent legislative changes. [See,
    e.g.]{.underline}, [Ruckelshaus v. Monsanto Co.]{.underline}, 467
    U.S. 985 (1984) (amendments to Federal Insecticide, Fungicide, and
    Rodenticide Act, 7 U.S.C. § 136 (1988), which required disclosure of
    health, safety, and environmental data to others in industry,
    amounts to an unconstitutional taking of trade secrets);
    [Pennsylvania Coal Co.]{.underline}, 260 U.S. 393.

[^43]: ^?^ For example, in [Andrus]{.underline}, the Supreme Court
    rejected claims that the Eagle Protection Act and the Migratory Bird
    Treaty Act effected a taking even though they prohibited all of the
    uses originally intended for the products made from the protected
    birds. 444 U.S. 51. Instead, the Court was satisfied that the
    claimants had not proven that they were unable to make any
    profitable use of the items. [Id.]{.underline} at 66.

[^44]: ^?^ [See, e.g.]{.underline}, [Nollan v. California Coastal
    Comm\'n]{.underline}, 483 U.S. 825 (1987), in which the Supreme
    Court held that a taking without compensation had occurred where
    owners of beach front property who wished to build homes were
    required to grant a public easement across the property. The Court
    found no evidence that the easement would further the stated
    rationale for the requirement \-- to alleviate the effect the homes
    would have on the view of the beach from the public thoroughfare.
    [See also]{.underline} [Commercial Builders v.
    Sacramento]{.underline} 941 F.2d 872 (9th Cir. 1991).

[^45]: ^?^ There is no merit to IHOP\'s argument that the ADA
    constitutes a taking because it requires existing facilities to make
    modifications for the benefit of a specific group (people with
    disabilities) (IHOP Mem. at 40). The Supreme Court has rejected this
    type of takings argument in [Heart of Atlanta Motel, Inc. v. United
    States]{.underline}, 379 U.S. 241 (1964), involving a challenge to
    title II of the Civil Rights Act of 1964, which is the model for
    title III. As Justice White stated in [Connolly v. Pension Benefit
    Guarantee Corp.]{.underline}, when considering such a challenge to a
    new pension benefit regulation,

    > In the course of regulating commercial and other human affairs,
    > Congress routinely creates burdens for some that directly benefit
    > others. . . . Given the propriety of the governmental power to
    > regulate, it cannot be said that the Taking Clause is violated
    > whenever legislation requires one person to use his or her assets
    > for the benefit of another.

    475 U.S. 211, 222-23 (1986); [see]{.underline}
    [Elkhorn]{.underline}, 428 U.S. at 14-20; [see also]{.underline}
    [Miller v. Schoene]{.underline}, 276 U.S. 272, 279 (1928).

[^46]: ^?^ The ADA was signed into law on July 26, 1990. The title III
    provisions applicable to existing facilities took effect 18 months
    later, on January 26, 1992. [See]{.underline} 42 U.S.C. § 12181 note
    (Supp. II 1990). Small businesses could not be sued for title III
    violations until even later. [Id.]{.underline} The period between
    enactment and effective date was designed to give covered businesses
    sufficient time to become aware of their new obligations under the
    ADA and to undertake barrier removal and operational changes
    necessary to come into compliance.

[^47]: ^?^ Indeed, \"statutes affecting substantive rights and
    liabilities are presumed to have only prospective effect,\" [Bennett
    v. New Jersey]{.underline}, 470 U.S. 632, 639 (1985), while
    procedural and remedial changes in the law are generally given
    retroactive effect, [Bradley v. School Board of
    Richmond]{.underline}, 416 U.S. 696 (1974). Substantive provisions
    of titles I (employment) and II (State and local government programs
    and services) of the ADA have been found not to be retroactive.
    [Barraclough v. ADP Automotive Claims Servs., Inc.]{.underline}, 818
    F. Supp. 1310, 1312 (N.D. Cal. 1993); [Dean v.
    Thompson]{.underline}, No. 92 C 20388, 1993 WL 169734 at \*4 (N.D.
    Ill. May 6, 1993).