Number range CHAPTER IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Civil Action No. 96-5012

v\. )

)

DAYS INNS OF AMERICA, INC., )

HFS INCORPORATED, RICHARD HAUK, )

KARLA HAUK, DAVID BAUMANN d/b/a )

CAD DRAFTING PLUS, and DOUBLE H )

ENTERPRISES, INC., )

)

Defendants. )

)

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

**MOTION FOR SUMMARY JUDGMENT**

**(ORAL ARGUMENT REQUESTED)**

**I. INTRODUCTION**

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

DIA and HFS do not deny that the Wall Days Inn is inaccessible to
individuals with disabilities. DIA and HFS do not deny that at least 13
other new Days Inn hotels --- two others in South Dakota, and 11 others
in ten other states --- have also been designed and constructed to be
inaccessible to individuals with disabilities. Further, there is no
dispute over what actions DIA

or HFS did or did not take with respect to the design and construction
of the Wall Days Inn or other new Days Inn hotels. Thus, the only
questions that remain in dispute are questions of law: whether, given
the undisputed facts, DIA and HFS are liable under title III of the ADA
for the design and construction of the Wall Days Inn and other
inaccessible Days Inn hotels. Accordingly, the United States moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56,[^2]
seeking both injunctive relief and the award of civil penalties against
both DIA and HFS.

**II. STATEMENT OF THE CASE**

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

**A. The Wall Days Inn is not accessible to or usable by individuals
with disabilities**.

As detailed in the report of the United States' expert, Mr. William
Hecker, the Wall Days Inn is not readily accessible to or usable by
individuals with disabilities. *See* U.S. Facts ¶¶ 77-79.[^3] The hotel
was designed and constructed[^4] with numerous violations of the ADA's
Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the
Standards"), occurring in every area of the facility, from the parking
lot, walkways, and entrances, to the lobby and other public and employee
areas, to the guest rooms and guest bathrooms. [Id]{.underline}. In
general, the violations fall into three categories: (1) conditions that
result in unequal treatment for individuals with disabilities; (2)
conditions that make it difficult or impossible for individuals with
disabilities to gain access to or use some area or feature of the hotel;
and (3) conditions that present potential safety hazards for individuals
with disabilities.

Perhaps the best example of a condition that results in unequal
treatment for individuals with disabilities is the failure to provide
accessible features in the hotel's various types of guest rooms. As
designed and constructed, the Wall Days Inn has two rooms designated for
use by individuals with disabilities, each of which has only one bed.
U.S. Facts ¶ 78.l. The hotel has several rooms with two beds, but none
of the rooms with two beds have any accessibility features, and are not
usable by individuals with disabilities who need an accessible room.
[Id]{.underline}.[^5]

There are a multitude of conditions at the Wall Days Inn that make it
difficult or impossible to gain access to or make use of some area or
feature of the hotel. The most significant of these is undoubtedly the
hotel's failure to provide an elevator. The hotel has guest rooms on
each of the first and second floors, and a basement level with a spa and
sauna area, two restrooms, a laundry facility, and various electrical,
mechanical, and storage spaces. U.S. Facts ¶ 77.a. The only means of
access to either the upper floor of the hotel, or to any of the
facilities in the basement, however, is by means of stairs; the hotel
has no elevator. U.S. Facts ¶ 77.b. The Standards require multi-story
facilities to provide at least one passenger elevator. Standards §
4.1.3(5).[^6]

In addition to failing to provide an elevator, there are a number of
other conditions at the Wall Days Inn that make it difficult or
impossible to gain access to or make use of some area or feature of the
hotel. For instance, the hotel fails to provide accessible parking
spaces, and the ramp leading to the hotel's front entrance does not have
a level landing at the top, so that wheelchair users will tend to roll
backwards, away from the door, when they release their wheels to grasp
the door handle. U.S. Facts ¶¶ 77.a, c. Once inside, the hotel's
registration desk is too high to be used by someone who uses a
wheelchair, U.S. Facts ¶ 78.f,[^7] and the signs identifying rooms and
spaces within the hotel do not have Braille or raised letters, so that
individuals who are blind or who have low vision will not be able to
determine where they are. U.S. Facts ¶¶ 78.g, j. In the hotel's guest
rooms, the controls for the heating and air conditioning units require a
degree of manual dexterity that many individuals with disabilities do
not have, and the clothes rods and shelves are mounted too high to be
reached by someone using a wheelchair,. U.S. Facts ¶¶ 78.n, o. As a
result, many individuals with disabilities at the Wall Days Inn will be
unable to turn on or off, or adjust, the heat or air conditioning, or to
hang their clothes. Further, in the hotel's guest rooms that are not the
guest rooms specifically designed for individuals with disabilities, the
doors to the bathrooms are too narrow to allow the passage of an
individual using a wheelchair. U.S. Facts ¶ 78.k. Wheelchair users will
thus not be able to gain access to the bathrooms in those rooms, which
they might need to do if the accessible rooms are not available, or if
they are visiting someone who is staying in one of the hotel's
non-accessible rooms.[^8]

Finally, there are many conditions at the Wall Days Inn that present
safety hazards for individuals with disabilities. For instance, because
there are no curb ramps providing access to the walkway along the front
of the hotel (and because that walkway can be blocked by parked cars
overhanging the walkway), the only route for a wheelchair user to the
hotel entrance from the parking spaces designated for use by individuals
with disabilities is to enter the public street in front of the hotel,
and travel along that street to the end of the parking area, and then
turn in toward the entrance. U.S. Facts ¶ 78.b. The rear wall of the
hotel presents a safety hazard to individuals who are blind, or who have
low vision: heating and air conditioning units for the first floor guest
rooms project out into the walkway that runs along the rear wall of the
hotel, about head high. There are no barriers or warnings, however, to
prevent individuals with vision impairments from walking into these
units. U.S. Facts ¶ 78.e.

There are hazards inside the hotel as well. For instance, while the spa
and sauna area and the restrooms in the hotel basement have emergency
alarms, those alarms have only audible warnings; they have no visual
signals, and will not alert a person who is deaf to an emergency. U.S.
Facts ¶ 78.i. If that person is by himself or herself (for instance,
alone in the sauna or restroom), that person may not be alerted by hotel
staff or other guests. Finally, the hot water and drain pipes under the
lavatories in the public restrooms are not insulated, or otherwise
configured to prevent contact with the legs of wheelchair user. U.S.
Facts ¶ 78.h. Given that many wheelchair users have no feeling in their
legs, they would not know that they were being burned by those pipes.

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

In addition to the Wall Days Inn, several other newly constructed Days
Inn hotels have been designed and constructed to be inaccessible to or
unusable by individuals with disabilities. The United States' expert,
Mr. Hecker, has surveyed 13 other new Days Inns, and has found numerous
violations of the Standards at each. U.S. Facts ¶¶ 80-84. As with the
Wall Days Inn, the violations occur in all parts of the facility, and
can be grouped into the same three categories. For instance, new Days
Inn hotels in Willows, California, Hazard, Kentucky, and Champaign,
Illinois, all have rooms with two beds, or larger rooms with additional
amenities, but at each of these hotels, the accessible guest rooms have
only one bed and none of the other amenities. U.S. Facts ¶¶ 81.o, 82.i,
83.e.

Similarly, both the Willows and Hazard Days Inns have too few accessible
parking spaces, or parking spaces designated for use by individuals that
do not comply with the requirements of the Standards. U.S. Facts ¶¶
81.a, b, 82.a. The Willows Days Inn has a swimming pool which cannot be
reached by someone who uses a wheelchair, due to a lack of curb ramps.
U.S. Facts ¶ 81.d. Each of the three hotels has a registration counter
that is too high. U.S. Facts ¶¶ 81.g, 82.e, 83.a. Each has controls for
lamps and heating and air conditioning units in their guest rooms that
require a high level of manual dexterity, so that many guests with
disabilities will not be able to turn on or off the lights, or turn on
or off the heating or air conditioning. U.S. Facts ¶¶ 81.n, 82.k, 83.h.
Finally, the bathroom doors to the non-accessible guest rooms at all
three hotels fail to provide adequate clear width. U.S. Facts ¶¶ 81.k,
82.j, 83.g.

With respect to safety hazards, the Willows Days Inn has only one curb
ramp providing access from the walkway surrounding the hotel to the
parking lot. U.S. Facts ¶ 81.c. That ramp is in front of the hotel
lobby; if there is a fire in or near the lobby, wheelchair users may not
be able to use that ramp, and may not be able to leave the building
safely. [Id]{.underline}. In addition, both the Hazard and Willows
hotels fail to provide barriers or other warnings to prevent people who
are blind or have low vision from walking into the undersides of
exterior stairs, or into objects protruding into the hotel's walkways.
U.S. Facts ¶¶ 81.f, 82.c, d. All three hotels have emergency alarm
systems that fail to provide visual alarms in the hotel lobbies, lobby
restrooms, or guest rooms, U.S. Facts ¶¶ 81.e, h, l, 82.g, 83.c, f, and
all three hotels have lavatories with hot water and drain pipes that are
not insulated or otherwise configured to protect against contact. U.S.
Facts ¶¶ 81.i, 82.f, 83.b.

Further evidence of the typicality of the ADA violations at the Wall
Days Inn comes from the United States' inspections of ten other newly
constructed Days Inn hotels, including Days Inn hotels in Sturgis and
Watertown, South Dakota. At each of those hotels, the United States'
expert found violations of the Standards throughout the facility, of the
same types as the violations found at the Willows, Wall, Hazard, and
Champaign hotels. U.S. Facts ¶ 84. The findings of the United States'
expert with respect to ADA violations at the Wall Days Inn and the other
newly constructed Days Inn hotels are undisputed. U.S. Facts ¶ 79.

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

As the undisputed facts show, DIA and HFS had both a high degree of
control or authority over the design and construction of the Wall Days
Inn, and extensive involvement in the project itself.[^9] The license
agreement covering the Wall Days Inn contains several terms governing
the design and construction of the hotel, and reserves to DIA
considerable control over the project. For instance, the license
agreement sets dates by which construction must begin and be completed,
and requires the licensees, Richard and Karla Hauk, to prepare
architectural plans for the hotel that conform to the Days Inn design
standards. U.S. Facts ¶¶ 29.a, b. The agreement requires the Hauks to
submit their plans to DIA for DIA's review and approval before beginning
construction. U.S. Facts ¶ 29.c. The agreement requires the Hauks to
construct the hotel in accord with the plans approved by DIA, and to
secure DIA's written approval of any changes to those plans. U.S. Facts
¶ 29.d. The agreement further provides that, upon DIA's request, the
Hauks must provide copies of their building permits to DIA and reports
on the progress of construction, and that DIA has the right to inspect
the construction during the course of the project. U.S. Facts ¶ 29.f.
Once construction is completed, the agreement forbids the Hauks to open
and operate the hotel until after DIA certifies in writing that the
hotel complies with DIA's design standards, and is acceptable to DIA.
U.S. Facts ¶ 29.g.

In addition to the control over the project that DIA reserved to itself
in the Wall license agreement, the undisputed facts show that DIA
involved itself in the project in a variety of other ways as well. In
late 1992, Andy Anderson, a DIA franchise sales representative,
approached Mr. Hauk in Wall. U.S. Facts ¶¶ 44, 45. The Hauks had
acquired a vacant piece of property in Wall, and were trying to decide
what to do with it. U.S. Facts ¶ 45. Before talking with Anderson, the
Hauks had not seriously considered building a new hotel.
[Id]{.underline}. The Hauks met with Anderson in Aberdeen, South Dakota,
where Anderson introduced them to David Baumann, an architect who had
prepared plans for two other Days Inn hotels, one in West Fargo, North
Dakota, and one in Oacoma, South Dakota. U.S. Facts ¶¶ 46, 47. Before
meeting with the Hauks in Aberdeen, Baumann, who knew Anderson from his
involvement in the West Fargo Days Inn project, discussed the
possibility of becoming involved in the Wall project with Anderson. U.S.
Facts ¶¶ 47-48. Based on Anderson's recommendation of Baumann, and
Baumann's previous experience designing Days Inn hotels, the Hauks hired
Baumann to prepare plans for the Wall Days Inn. U.S. Facts ¶¶ 50-53.

Anderson also referred the Hauks to a builder for the project, Double H
Enterprises, Inc. U.S. Facts ¶ 54. At the time, Double H was in the
process of building the Oacoma Days Inn, one of four other Days Inn
hotels, including West Fargo, that Double H had constructed. U.S. Facts
¶¶ 54-55. Anderson had an established relationship with Charles Hayes,
the principal of Double H. They had had several prior business dealings
(including joint ownership of a hotel in Nebraska), and Anderson had
introduced Hayes to the owners of the Oacoma project. U.S. Facts ¶
56-57. According to Hayes, the two were "fairly good friends." U.S.
Facts ¶ 57. Before talking to the Hauks about the Wall Days Inn, Hayes
spoke with Anderson two or three times about the possibility of becoming
involved in the project. U.S. Facts ¶ 58. Shortly after the Hauks met
with Anderson and Baumann in Aberdeen, they went to Oacoma, and met
Hayes at the Days Inn construction site. U.S. Facts ¶ 59. The Hauks
subsequently accepted a proposal from Hayes for work on the wall Days
Inn. U.S. Facts ¶ 60.

In addition to providing an architect and contractor for the project,
DIA involved itself in the Wall project in other ways. Very early on, in
October 1992, the DIA Design and Construction Department prepared and
sent to Mr. Hauk a conceptual site plan for his lot in Wall, showing how
the hotel might fit on the site, and how many rooms it might contain.
U.S. Facts ¶ 61. Although the site plan was not actually used in the
final design of the project, Mr. Hauk did rely on it to decide that a
hotel with enough rooms to be financially feasible could fit on the
site. U.S. Facts ¶ 61.a. DIA also prepared a projection of revenues and
expenses for the new hotel, which projection the Hauks' lender relied
upon in seeking a guaranty of the construction financing from the Small
Business Administration. U.S. Facts ¶ 62.

In the course of preparing plans for the Wall Days Inn, Baumann
frequently referred to the Days Inn Planning and Design Standards
Manual. He had gotten a copy from Anderson, had been through it in
detail, and highlighted various requirements. U.S. Facts ¶ 49, 63.
Baumann referred to the PDSM for "all kinds of standards," including
guest room sizes and layouts, bathroom sizes and layouts, door sizes,
corridors, exit doors, and other items. U.S. Facts ¶ 64. In addition, in
preparing the Wall plans, Baumann used several detail drawings that he
had previously used in the West Fargo and Oacoma Days Inns; and while he
did not know whether those drawings had been reviewed by DIA, he did
know that those hotels had been completed and opened for business as
Days Inn hotels. U.S. Facts ¶¶ 65-66. Baumann hired an engineering firm
in Fargo to prepare mechanical and electrical drawings for the hotel,
and provided them with the sections of the PDSM relating to electrical
and mechanical requirements. U.S. Facts ¶¶ 67-68. The engineering firm
also incorporated Days Inn requirements into the plans it prepared. U.S.
Facts ¶ 69. Hayes also had a copy of the PDSM, which he used to
determine what furniture, fixtures, and equipment were required. U.S.
Facts ¶ 70-71.

Baumann sent a set of preliminary plans for the Wall Days Inn --- four
sheets of architectural drawings --- to Mark Zelazny, an architect in
the DIA Design and Construction Department, for DIA's review and
approval. U.S. Facts ¶ 72. Zelazny reviewed and commented upon the
plans, and returned a marked up set of plans to Baumann. U.S. Facts ¶
73. Zelazny noted several items on the plans, some of which were
required by the Days Inn design standards, and some of which were not.
U.S. Facts ¶ 74. Among those items not covered by the PDSM were items
reflecting current industry standards, safety items, and various items
relating to accessibility for individuals with disabilities, including
showing the location of a curb ramp near the hotel's front entrance, and
showing the necessity for providing adequate turning space in the
bathrooms in the accessible guest rooms. U.S. Facts ¶ 74.b, c, d.

Once construction began, Anderson visited the site twice. The first
visit was quite brief, but the second visit lasted longer, and included
a conversation with Richard Hauk. U.S. Facts ¶ 75. DIA's Property
Openings department monitored the progress of the construction, making
multiple phone calls to the Hauks. U.S. Facts ¶ 76. As the hotel neared
completion, DIA's contact became more frequent. [Id]{.underline}. Since
the completion of the hotel, DIA has inspected the facility several
times. The first visit was made by the DIA representative who came to
the property to install the hotel's computer reservations terminal, and
provide training to the hotel's management and staff. That visit
occurred in late June, 1993, just as construction was being completed,
and included a tour of the property. U.S. Facts ¶ 111.c.i. Since that
time, DIA has inspected the property at least three times a year as part
of its Quality Assurance program. U.S. Facts ¶¶ 93, 100. Among other
things, the Quality Assurance (QA) inspections check for compliance with
the Days Inn design standards. U.S. Facts ¶ 92.

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

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

Initially, the Wall license agreement is typical of all license
agreements. U.S. Facts ¶ 28. Indeed, DIA uses a standard form of
agreement for all of its licensees. U.S. Facts ¶¶ 20, 21. And while DIA
will alter some specific provisions of the standard agreement in some
cases, many are not negotiable. U.S. Facts ¶ 22. These include the
provisions that require the licensee to prepare plans and specifications
for the hotel that comply with DIA's design standards. U.S. Facts ¶ 22,
27. In addition, in order to protect its own interests, DIA includes in
all of its agreements the provisions which fix the number of guest rooms
for the hotel, and which set dates by which the construction of the unit
must begin and be completed. U.S. Facts ¶¶ 27.e, f.

The Days Inn Planning and Design Standards Manual is one of the Days Inn
System Standards manuals, which licensees must comply with both when
preparing the plans for their hotels, and continuously thereafter. U.S.
Facts ¶¶ 18, 19, 23, 24, 30. The PDSM was originally developed by DIA's
predecessor in interest, Days Inns of America Franchising, Inc. (DIAF),
as part of DIAF's own construction projects, and then passed on to
DIAF's franchisees. U.S. Facts ¶ 31. When HFS acquired the Days Inn
chain from DIAF, and created its wholly-owned subsidiary DIA, the DIAF
PDSM was re-issued with DIA's name and address. U.S. Facts ¶ 31.a.

The PDSM sets detailed requirements for new hotels. DIA's expert, Mr.
Kiewel, described it as "comprehensive," and Mr. Baumann, the architect
who prepared plans for the Wall Days Inn described it as "a very
complete manual." U.S. Facts ¶¶ 32.a, c. Mr. Zelazny, the DIA architect
who reviewed the plans for the Wall Days Inn confirmed that the PDSM
imposed hundreds of requirements, covering all aspects of the hotel's
design and construction. U.S. Facts ¶¶ 32.b, 33. In addition, the PDSM
includes dozens of drawings and sketches, showing guest room and guest
room bathroom layouts, and drawings of previously constructed Days Inn
hotels. U.S. Facts ¶ 34. While licensees are not required to use the
drawings of prior Days Inn hotels, the PDSM "encourages" licensees to
use these "examples of recent Licensee and DIA designed and built
models." U.S.v Facts ¶ 34.b.

In addition to the control over the design and construction of new Days
Inn hotels evidenced by the license agreement and PDSM, DIA is involved
in the design and construction of new Days Inn hotels in a variety of
other ways. For instance, DIA visits the sites of proposed new hotels,
and evaluates those sites according to several factors. U.S. Facts ¶
42.a. As it did in Wall, DIA frequently assists licensees in the early
stages of design by providing conceptual site plans or architectural
renderings, drawings which can be used for a variety of purposes, such
as determining the feasibility of a particular project on a particular
site, or obtaining zoning permits or waivers from local building
officials. U.S. Facts ¶¶ 42.b, c, d. As Mr. Keeble put it, conceptual
site plans can help licensees "get an idea of what they want to build."
U.S. Facts ¶ 42.c.i.[^10] Those drawings can also be used to show to a
prospective lender, in support of an application for construction
financing. U.S. Facts ¶ 42.c. DIA also refers licensees to lenders or
architects who have expressed an interest in new Days Inn hotel
projects. U.S. Facts ¶ 42.e.

As it did for the Wall Days Inn, the DIA Design and Construction
Department reviews plans for new Days Inn hotels. While these reviews
are intended primarily to check for compliance with Days Inn system
standards, they frequently include issues of building code compliance,
recent trends in the industry, and accessibility for people with
disabilities. U.S. Facts ¶ 41. DIA also monitors the progress of
construction for new Days Inn hotels; in lieu of sending inspectors to
construction sites, DIA would send cameras to licensees, for them to
take pictures of their projects to send to DIA. U.S. Facts ¶ 43.
Finally, just as it did in Wall, a DIA representative visits every new
hotel at or near the completion of construction, to install reservations
equipment, train hotel staff, and tour or inspect the property. U.S.
Facts ¶¶ 111.c.

In addition to this initial visit, the DIA Quality Assurance department
inspects every Days Inn property at least three times per year,
inspections that include compliance with Days Inn's design standards.
U.S. Facts ¶¶ 92, 93.

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

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

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

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

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

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

**IV. ARGUMENT**

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

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

> Section 303 provides that
>
> as applied to public accommodations and commercial facilities,
> discrimination for purposes of section 302(a) of this title includes
>
> \(1\) a failure to design and construct facilities for first occupancy
> later than \[January 26, 1993\], that are readily accessible to and
> usable by individuals with disabilities . . . .

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

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

As outlined above, the undisputed facts of this case show that there are
numerous violations of the Standards both at the Wall Days Inn and
several other new Days Inns, and that DIA has participated extensively
in the design and construction of those hotels. As it does with other
hotels in its chain, DIA's involvement with the design and construction
of the Wall Days Inn began early, and extended to every aspect of the
project. The DIA Design and Construction Department provided a
conceptual site plan for the project, which Mr. Hauk used to decide that
the project was feasible. DIA assisted with the construction financing,
and the DIA franchise salesman recommended an architect and builder for
the hotel, both of whom had been involved in previous Days Inn projects.
The architect, engineer and builder all had and referred to the PDSM.
Through the license agreement with the Hauks DIA set dates for the
beginning and completion of construction, required the Hauks to prepare
plans for the hotel that conformed to the Days Inn Planning and Design
Standards Manual, and required the Hauks to obtain DIA's approval of
their plans for the hotel, which they did. DIA monitored the progress of
the construction (especially as it neared completion), and inspected the
hotel upon its completion.[^12]

The PDSM itself represents significant involvement by DIA in the design
of the Wall and other new Days Inn hotels: as DIA's expert architect put
it, the PDSM is "comprehensive." U.S. Facts ¶ 32.a. It sets forth
hundreds of design requirements for all areas of new Days Inn hotels,
and includes sketches showing the design or layout of guest rooms and
guest bathrooms. U.S. Facts ¶¶ 32.b, 33, 34. The PDSM addresses or sets
requirements for all of the areas of the Wall Days Inn in which
violations of the Standards occurred. Similarly, the license agreement
with the Hauks (which is typical of agreements with other Days Inn
licensees) requires them to submit architectural drawings and
specifications for the hotel. Because the scope of DIA's control over
and involvement in the design and construction of the Wall Days Inn
extended to every aspect of the hotel, the scope of its liability for
ADA violations at the Wall Days Inn is quite broad: along with the
owner, architect, and builder (each of whom were also involved in the
design and construction of all aspects of the facility), DIA is
responsible for all of the violations of the Standards at the Wall Days
Inn.

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

Title III of the ADA does not only set architectural requirements for
the design and construction of new facilities. It also prohibits a
variety of forms of discrimination in the day-to-day operation of
certain businesses. That is, in addition to the requirements for new
construction set out in section 303, section 302 of the Act includes a
general prohibition of discrimination against individuals with
disabilities, and imposes on public accommodations, but
[not]{.underline} on commercial facilities, various other
non-discrimination obligations with respect to their day-to-day
operations. *See* 42 U.S.C. § 12182(a) and (b).[^13]

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

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

As broadly defined as it is, the category of "public accommodations" is
not as broad as the category of "commercial facilities." That term is
defined as all facilities intended for non-residential use whose
operations affect commerce. *See* 42 U.S.C. § 12181(2).[^14] While this
definition includes many facilities that are also public
accommodations,[^15] it includes a broad range of facilities that are
not public accommodations, such as factories, warehouses, many office
buildings, and other buildings in which employment may occur. Congress
chose this expansive coverage of commercial facilities deliberately. The
lawmakers recognized that while employees at commercial facilities would
have the protections of the provisions of title I of the ADA, 42 U.S.C.
§§ 12111 through 12117 (governing private employers, and requiring them
to make reasonable accommodations for employees with disabilities), it
nonetheless made sense to impose a blanket requirement for architectural
accessibility on facilities that were potential places of employment,
but were not places of public accommodation. As the House Committee on
Education and Labor pointed out,

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

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

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

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

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

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

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

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63.[^16] The Committee
clearly understood that section 303 covered a wider universe than
section 302 and wanted to ensure that the requirements for alterations,
like those for new construction, applied to the many office buildings,
factories, warehouses, and other potential places of employment that are
not public accommodations. As the Committee noted,

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

[Id]{.underline}.

In sum, there can be little question that Congress deliberately chose to
draft sections 302 and 303 differently, and intended them to apply to
different kinds of activities, different categories of facilities, and
different parties. Thus, the most sensible reading of section 303\'s
reference to section 302(a) is that section 303 refers to section 302(a)
only to indicate that the failure to design and construct accessible
facilities constitutes another type of \"discrimination on the basis of
disability,\" and [not]{.underline} to identify the parties that may be
held liable under section 303. This interpretation gives full effect to
all of the terms of the provision. *See* [Moskal v. United
States]{.underline}, 498 U.S. 103, 109-10 (1990) (courts should
interpret statutes in a manner that gives effect to every clause and
word of the statute) (quoting [United States v. Menasche]{.underline},
348 U.S. 528, 538-39 (1955) (same)).[^17]

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

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

purpose.

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

Under well-established canons of statutory construction, in addition to
examining the text of the statute the Court must also look to its
remedial purposes, and construe the statute in a way that will allow it
to achieve those purposes.[^18] Limiting the coverage of section 303 to
the parties identified in section 302 would greatly limit the ability of
section 303 to achieve Congress\' stated purpose of ensuring that
[all]{.underline} new facilities are designed and constructed to be
accessible, and result instead in a great many more inaccessible
buildings.

To be fully effective, the ADA\'s new construction obligation must apply
not only to the parties who own, operate, or lease the facility in
question, but to all of the parties involved in the design and
construction of the facility. If all parties who engage in the illegal
activity --- the design and construction of inaccessible buildings ---
are held liable for doing so, the level of compliance with the statute
will be considerably higher than it would be if only some of those
parties are responsible. For instance, if only those who own, operate,
or lease facilities have any responsibility under section 303, an owner
who decides to erect a building that is not accessible to individuals
with disabilities, and asks an architect to design it without regard to
the ADA\'s architectural requirements, and a contractor to build it that
way, is quite likely to find an architect and contractor who will do as
he asks. Neither the architect nor the contractor would have any reason
to refuse: they would have no liability under the ADA to any person with
a disability, and no liability to the owner, because they were following
the owner\'s express instructions. As a result, it is much more likely
that the facility will be designed and built inaccessibly --- and will
only be made accessible if a lawsuit is filed to compel compliance. Such
a result is clearly not what Congress intended: the legislative history
makes clear that Congress recognized that it is far easier and less
expensive to incorporate accessible features into a building from the
beginning than to go back later and retrofit the facility after
construction is complete.[^19] And Congress certainly did not wish to
create a scheme under which compliance will be achieved only as a result
of costly litigation. Such a scheme would burden not just individuals
with disabilities and the courts, but the rest of our society as well,
when construction of a facility is halted, or a completed facility is
shut down, for the purpose of undertaking remedial work to bring it up
to ADA standards.

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

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

Significantly, section 303 of the ADA mirrors a provision contained in
section 804 of the Fair Housing Act, a provision which also simply
identifies an illegal activity --- the design and construction of
inaccessible housing facilities --- and does not specify or limit the
parties that may be held liable under that section.[^20] In modeling
section 303 of the ADA on section 804(f)(3)(C) of the Fair Housing Act,
Congress clearly chose to approach the design and construction of
inaccessible public accommodations and commercial facilities in the same
way that it had approached the design and construction of inaccessible
housing facilities: it has simply specified an illegal activity --- the
design and construction of inaccessible facilities --- and has not
qualified that prohibition to allow some parties, but not others, to
engage in that activity. Indeed, given that Congress specifically
"invoked the sweep of its authority" when it enacted the ADA, to
establish a "clear and comprehensive national mandate" for the
elimination of discrimination against individuals with disabilities, it
would only be surprising if Congress had chosen [not]{.underline} to
draft section 303 so broadly, but only to require some limited class of
parties to fulfill its goal of

a fully accessible future.

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

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

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

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

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

Even assuming for the sake of argument that section 303 is limited to
the parties identified in section 302, the United States is still
entitled to judgment as a matter of law. Given the degree of control it
exercises over all aspects of the operation of the hotels in the Days
Inn System, including the Wall Days Inn, DIA "operates" the Wall Days
Inn, and other Days Inns, within the meaning of section 302.[^21]

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

When a licensee buys a franchise from DIA, part of what he or she buys
is a "hotel operating system." U.S. Facts ¶ 85. The Days Inn hotel
operating system (commonly referred to as the "Days Inn System") is both
comprehensive and mandatory. It addresses all aspects of the operation
of a Days Inn hotel, and, under the terms of the license agreement, the
licensee is required to operate the hotel in compliance with all System
Standards at all times. In addition to requiring compliance with the
Days Inn System, moreover, the agreements that licensees enter into give
DIA several additional means of control over the operation of Days Inn
hotels. The license agreement between DIA and the Hauks typifies the
ways in which DIA can and does control the day to day operations of the
hotels in its system.

As part of its System Standards, DIA establishes operating policies for
all Days Inn hotels --- operating policies which "must be strictly
observed by each property in the Days Inn System." U.S. Facts ¶ 89. DIA
has the right to change the System Standards at any time, in any fashion
it deems necessary. U.S. Facts ¶¶ 25, 88.a. The operating policies that
Days Inn hotels must follow are set forth in the Days Inn Operating
Policies Manual, one of the Days Inn "System Standards" Manuals. U.S.
Facts ¶ 89. James Stansburry, a former HFS employee who conducted
training sessions for hotel managers and employees at Days Inn hotels
around the country, explained that the OPM

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

Deposition of James Stansburry, Ex. 17, at 114. His description is an
apt one. As more fully detailed in the United States' Statement of
Material Facts, the OPM sets dozens of requirements for the daily
operation of all Days Inn hotels, including the Wall Days Inn. U.S.
Facts ¶¶ 90, 91. Among other things, the OPM sets requirements for
grooming and attire for hotel employees, employee uniforms, hours of
operation of the front desk, services that must be provided to guests
(such as wake-up calls, fax machines, free local calls, free ice,
complimentary coffee, baby cribs, and the like), the forms of payment
the hotel must accept, guest safety and security, and swimming pools
(including pool equipment, furniture, and chlorine and pH levels). U.S.
Facts ¶¶ 91.f, h, i, j, l, m. For hotels with restaurants, the OPM sets
a variety of operating requirements for the restaurant; if there is no
restaurant at or adjacent to the hotel, the hotel must provide a free
continental breakfast, and the OPM specifies the hours and the menu
(fruit juice, coffee (including decaf) and tea, and pastries, muffins,
croissant, or "local specialties"). U.S. Facts ¶ 91.o.

The OPM also includes dozens of specifications for the supplies and
furnishings that must be provided in every guest room. These include
requirements for the provision of, and often the number and location of,
pictures, desks, tables, chairs, televisions, mirrors, towel racks,
clothes hangers, ashtrays, wastebaskets, rolls of toilet tissue, note
pads, and sheets of hotel stationery and envelopes. U.S. Facts ¶¶ 91.b,
c. Similarly, the OPM specifies the number of towels that must be
provided in each guest rooms (three bath towels, three hand towels,
three wash cloths, and one bath mat), and the size, weight, fiber
content, and color of the towels, sheets, pillowcases, and blankets.
U.S. Facts ¶ 91.d. The maximum shrinkage allowed is ten percent.
[Id]{.underline}.

In addition, the OPM sets forth the responsibilities of the hotel's
general manager, requirements for employee relations at the hotel, and
requirements for employee job performance. U.S. Facts ¶¶ 91.a, e, g. The
OPM also sets requirements for housekeeping and maintenance at the
hotel. U.S. Facts ¶ 91.k.

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

DIA actively enforces its System Standards, including the requirements
of the OPM. Under the terms of the license agreements, DIA is entitled
to conduct, and does conduct, unannounced inspections of every Days Inn
hotel, including the Wall Days Inn, at least three times per year. U.S.
Facts ¶¶ 88.a, 92, 93. These mandatory inspections are known as "Quality
Assurance" evaluations; at the end of each inspection, the hotel is
scored on its compliance with the System Standards. U.S. Facts ¶ 97, 99.
If the hotel receives a failing score, it is reinspected, and given
thirty days to cure the conditions that caused it to fail; if it still
fails, the hotel is subject to being terminated from the system. U.S.
Facts ¶ 98. Even for hotels with better scores, QA deductions can be
costly. The QA scores are translated into a "Sunburst" rating system in
which each property receives from zero to five "Sunbursts," with higher
scores getting more Sunbursts. U.S. Facts ¶ 103. The Sunburst ratings
for all Days Inn hotels are published in the Days Inn directory, which
is distributed free of charge at every Days Inn hotel, and are available
to guests who call the Days Inn reservation center, and through the Days
Inn World Wide Web site. [Id]{.underline}. The QA system is thus a
powerful tool for controlling the way licensees operate their hotels. As
Mr. Keeble explained,

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

U.S. Facts ¶ 104.a. Mr. Hauk added that in his view, the importance of
the Sunburst rating lies in the fact that "\[c\]ustomers look at it and
I believe determine where they want to stay because of the sunburst
rating." U.S. Facts ¶ 104.b. Accordingly, in conducting the business of
the Wall Days Inn, the Hauks make an effort to get a high QA score,
"\[b\]ecause we get a higher sunburst rating, and that reflects on how
our property looks to the customer."

QA inspections are exacting. They include hundreds of items, both inside
and outside the facility. U.S. Facts ¶ 94. QA inspectors arrive at the
property unannounced, posing as guests. [Id]{.underline}. Among other
things, QA inspectors check dozens of items in the hotel's guest rooms,
including the condition and proper operation of room number signs, door
locks, drapery controls, heating and air conditioning units, telephones,
chairs, tables, beds, televisions, light fixtures, plumbing fixtures,
towel racks, linens of all sorts, and the presence of all required room
supplies. U.S. Facts ¶ 95. In addition to the inspections in the guest
rooms, QA evaluations cover a variety of other areas, including:
compliance with DIA's operating standards; hotel employees' grooming,
appearance, uniforms, professionalism, and knowledgeability; compliance
with all of DIA's required marketing programs and required training
programs; the number of guest complaints received by the hotel; safety
issues including the presence and proper functioning of smoke detectors,
fire extinguishers, first aid kits, lighting in the parking lots, guest
room security locks, depth markings on swimming pools, and storage of
flammable materials; presence of non-discrimination posters required by
federal law; and, in some cases, accessibility issues for individuals
with disabilities, including the location of peepholes in the doors to
accessible guest rooms, and bathroom door width. U.S. Facts ¶ 96.

At the Wall Days Inn, QA inspectors issued numerous warnings or
deductions, including required items missing from guest rooms (skirt
hangers, stationery, Days Inn cups, and Do Not Disturb signs), missing
eye wash from the first aid kit, faded striping in the parking lot,
failing to cover wastebaskets in the hotel's restrooms, dirty filters in
the heating and air conditioning units, inadequate front desk hours,
failing properly to maintain the courtesy call log, housekeepers not
wearing proper uniforms, front desk staff wearing jeans and no name tag,
and insufficient plants and flowers around the exterior of the hotel.
U.S. Facts ¶ 100.

At the conclusion of the inspection, which typically takes two hours or
more, the inspector fills out a QA evaluation form, giving the property
a score for the inspection. U.S. Facts ¶ 97. The inspector discusses the
results of the inspection with the hotel manager, and seeks a commitment
from the manager to correct items for which deductions were taken.
[Id]{.underline}. Those commitments often include commitments to take
certain actions on a daily basis, and the Hauks have routinely agreed to
take a variety of actions to clean or maintain items in guest rooms or
other features of the hotel on a daily or regular basis. U.S. Facts ¶
97, 102. Moreover, the Hauks have repeatedly modified various aspects of
their operation of the Wall Days Inn, to comply with Days Inn
requirements and avoid QA deductions. Among other things, they changed
the hours of operation of their front desk, have arranged to install
electronic door locks for all of their guest rooms, give discounts on
room rates they would not otherwise give, and respond to guest
complaints they believe to be meritless. U.S. Facts ¶ 101.

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

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

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

As described in Part II.D., above, DIA has considerable control over the
initial design and construction of new Days Inn hotels. The license
agreements give DIA a similar level of control over any renovations or
other changes to the hotel. First, the agreements contain provisions
prohibiting the licensee from materially modifying, diminishing, or
expanding the hotel, or changing its interior design or layout, without
DIA's prior written consent. U.S. Facts ¶ 88.m. DIA also has the
authority affirmatively to require its licensees to undertake
renovations to their hotels. Under the terms of the standard license
agreement, DIA can require licensees to undertake renovations costing
(by DIA's estimate) up to an aggregate of \$3,000 times the number of
guest rooms. U.S. Facts ¶ 88.l.i. The Wall license agreement contains
two renovations provisions: one for "minor" renovations, which is capped
at \$1,000 times the number of guest rooms, and the other for "major"
renovations, which is capped at \$10,000 times the number of rooms (for
the Wall hotel, \$32,000 and \$320,000, respectively), adjusted for
inflation. U.S. Facts ¶ 88.l.ii.

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

DIA operates a national reservations system, which produces
approximately 25-30% of the room reservations for Days Inn hotels
system-wide. U.S. Facts ¶¶ 105, 106. All Days Inn hotels, including the
Wall Days Inn, are required to participate in the system, and to honor
reservations accepted by the system. U.S. Facts ¶¶ 105, 107. System
hotels are also required to comply with other reservations policies set
by DIA, including their "walk" policy, which requires hotels to find
other lodging for guests with confirmed reservations whose rooms are not
available, and, if the substitute lodging costs more, to pay the
difference. U.S. Facts ¶ 108.

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

Under the terms of the license agreements, licensees are required to
participate in a variety of marketing and promotional programs conducted
by DIA. Under some of these programs --- for example, the September Days
Club for senior citizens, and the Inn-Credible Club Card, for business
travelers --- individual Days Inn hotels are required to provide
discounted room rates and other benefits to members. U.S. Facts ¶¶
110.a, b. Under at least one marketing program, the Simple Super Saver
program, DIA both sets a minimum discount that must be offered, and
imposes an upper limit on the rate that licensees may charge. U.S. Facts
¶ 110.c. DIA also conducts promotional programs from time to time,
including programs connected to popular motion pictures; for programs
like these, DIA requires licensees, including the Hauks, to purchase
promotional materials to be displayed in the hotel lobby or to be given
away to guests. U.S. Facts ¶ 110.f.

Other DIA marketing programs impose service requirements on Days Inn
licensees. For instance, DIA requires licensees to provide non-smoking
guest rooms, U.S. Facts ¶ 110.e, and to engage in a "Courtesy Call
Program," in which the hotel's front desk staff is required to contact
each guest shortly after check-in, to ensure that the guest has no
complaints. U.S. Facts ¶ 110.d. The front desk staff are required to
keep a log of all "courtesy calls," and log is included in the Days Inn
QA inspections. [Id]{.underline}.

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

DIA conducts several training programs for the general managers of Days
Inn hotels and hotel employees, many of which are mandatory. The first
is what DIA calls the "Property Training Program," which is the training
session that occurs at the hotel, at or near the completion of
construction of a new Days Inn hotel. U.S. Facts ¶ 111.c. The hotel's
management, front desk staff, and housekeepers are all required to
attend various sessions of the training, which three to four days.
[Id]{.underline}. The training sessions cover a wide variety of topics,
including marketing, guest relations, the reservations system, Quality
Assurance standards (including mock inspections of hotel guest rooms,
and showing housekeepers how to be more efficient in the cleaning rooms
and setting up their carts), and guest safety and security.
[Id]{.underline}. The initial property training for the Wall Days Inn
took place from June 29 to July 2, 1993. U.S. Facts ¶ 111.c.i.

General managers of all Days Inn hotels are also required to attend
DIA's Hospitality Management Training program. U.S. Facts ¶ 111.a. This
week-long training session occurs at the Days Learning Center in
Knoxville, Tennessee, and covers a wide range of topics relating to the
operation of a Days Inn hotel. [Id]{.underline}. In particular, HMT
covers the Days Inn System standards, setting room rates, managing room
inventory, controlling labor costs, scheduling, motivating and managing
hotel personnel, sales and marketing, labor laws, loss prevention and
risk management, innkeepers' law, safety and security, occupational
health and safety standards, stress management, leadership skills, and
unit operation and maintenance, and recruiting, interviewing, and
selecting hotel personnel. [Id]{.underline}. Both Richard and Karla Hauk
attended HMT; Mr. Hauk testified that some sessions were very helpful to
him, including sessions on personnel matters --- interviewing job
applicants, and hiring, firing, and motivating employees. U.S. Facts ¶
111.a.i.

In addition to initial property training and HMT, DIA engages in a
variety of other training efforts, including training for hotel
employees provided at the hotel site by QA inspectors, and training
programs provided by regional alliances of Days Inn hotels. U.S. Facts ¶
111.d. DIA also requires licensees to attend annual conferences, because
those conferences are primarily training events. U.S. Facts ¶ 111.b. As
Mr. Keeble put it, the conferences are designed for hotel managers to
"get a little bit more education in operation of their hotel."
[Id]{.underline}.

In connection with its initial property training and other training
programs, DIA produces and issues to licensees a wide range of training
manuals. These include manuals on housekeeping, hotel maintenance, guest
services, telephone etiquette, and many other topics. U.S. Facts ¶ 112.
These training manuals provide detailed instruction on how to accomplish
various tasks arising in the course of the day to day operation of a
Days Inn hotel. For instance, general managers are provided with a
manual on how to train their housekeepers, which manual covers
employees' personal appearance (including brushing teeth, trimming
fingernails, and moderate use of cosmetics), standards for cleaning
guest rooms (including how to arrange items on the housekeepers' cart,
how to prepare a room for cleaning, how to clean the bathroom and make
the beds, and how to vacuum the carpet). U.S. Facts ¶ 112.a. Other
manuals are provided directly to hotel employees who participate in
training sessions conducted by DIA. For instance, DIA provides a
"Housekeeping Participants Manual," which also shows how to arrange the
housekeeper's cart, and addresses personal grooming, a "Telephone
Etiquette Participants' Manual," which addresses how to answer the phone
at a Days Inn hotel, and a "Guest Services Participants' Manual," which
addresses the courtesy call program and dealing with guest complaints,
and provides a series of form letters that can be used to respond to
complaint. U.S. Facts ¶¶ 112.b, c, d. DIA also provides a Maintenance
Operating Manual covering a variety of topics related to maintaining and
repairing various aspects of and equipment at a Days Inn hotel. U.S.
Facts ¶ 112.e.

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

DIA also controls the way its licensees deal with guest complaints. DIA
has a "Guest Services" department which oversees the handling of all
guest complaints regarding Days Inn hotels. U.S. Facts ¶ 113. DIA
requires its licensees to respond to all guest complaints, even if
meritless, and to report to DIA on how it has resolved them. U.S. Facts
¶ 114. If a licensee does not respond to a complaint, the DIA Guest
Services department will resolve the matter with the guest, and, if a
refund is given, charge the hotel in question for the amount of the
refund. U.S. Facts ¶ 113.

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

Finally, there are several other provisions in the Days Inn license
agreements that give DIA control over various other aspects of the
operation of Days Inn system hotels. For instance, provisions in both
the standard license agreement and the Wall license agreement require
the licensees to keep books and records specified by DIA, in a form
specified by DIA, require the licensees to provide financial statements
to DIA, and allow DIA to audit their books at any time. U.S. Facts ¶
88.d. The agreements also contain provisions limiting the ability of the
licensees to operate any food or beverage service at the hotel, and
requiring the licensees to get DIA's approval for any outside management
company to run the hotel. U.S. Facts ¶¶ 88.i, j.

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

In addition to authorizing injunctive relief, the ADA also authorizes
the Court, in a case brought by the Attorney General, to assess a civil
penalty against an entity that has violated title III, to vindicate the
public interest. 42 U.S.C. § 12188(b)(2)(C). Such a penalty may be in
any amount up to \$50,000.00 for a first violation, and up to
\$100,000.00 for a subsequent violation.[^22]

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

Here, there is no evidence that DIA or HFS made any good faith effort to
comply with the requirements of section 303, or to ensure that new
hotels joining its chain were readily accessible to and usable by
individuals with disabilities. When HFS took control of the Days Inn
chain in January 1992, just as title III of the ADA was going into
effect, it re-issued the DIAF Planning and Design Standards Manual under
DIA's name. U.S. Facts ¶ 31.a. There were few substantive changes to the
manual, but HFS did specifically include mention of the ADA as one of
the "jurisdictional codes" that licensees were required to comply with,
and reorganized the manual to put all of the "barrier-free" provisions
in a single section. U.S. Facts ¶ 121. Thus, there can be no question
that HFS was fully aware of the ADA when it re-issued the manual, but it
made no effort to check the PDSM's "barrier-free" requirements to see
whether they were consistent with the ADA's architectural requirements
for new hotels. [Id]{.underline}. Further, although it reviews plans for
new hotels, DIA does not check those plans for compliance with the ADA,
and does not even make careful checks to see if the plans complied with
the "barrier-free" provisions of its own PDSM. U.S. Facts ¶¶ 122-24. If
the HFS Design and Construction department had made such checks, there
might have been fewer violations of the ADA Standards at the Wall and
other new Days Inn hotels. U.S. Facts ¶ 125.

Moreover, despite provisions requiring their licensees to comply with
all federal laws and regulations, specifically including the ADA, DIA
and HFS have routinely admitted hotels into the Days Inn system that
they knew or should have known were not accessible to people with
disabilities including the Wall hotel. The ADA violations at these
hotels were not minor, or isolated, or hidden; rather, as detailed
above, there were numerous violations of the Standards at the Wall
hotel, in every part of the facility, and the same is true of all of the
other hotels examined by the United States. U.S. Facts ¶ 127. DIA
representatives tour the hotels upon their completion, and QA inspectors
inspect the hotels regularly. DIA and HFS have nonetheless accepted the
Wall and other new hotels into its system, and collected royalties from
them. Indeed, DIA and HFS exhibit no concern at all over the fact that
the Days Inn hotel chain includes numerous new hotels that are
inaccessible to individuals with disabilities. According to Mr. Keeble,
no one at HFS or DIA makes any effort to check to see whether Days Inn
hotels comply with the requirements of the ADA, despite the provision in
the license agreement requiring the hotel to comply with federal law.
U.S. Facts ¶ 126. As far as DIA and HFS are concerned, ADA compliance is
someone else's problem.

Finally, given the size and resources of these defendants, a significant
civil penalty is warranted. HFS is the world's largest franchisor of
hotels, and DIA is the world's largest franchisor of economy or
"mid-market" hotels. U.S. Facts ¶ 116. Not surprisingly, HFS has
substantial annual revenues --- over \$400 million in 1995 --- and
profits: in 1995, HFS had retained earnings of \$83.6 million. U.S.
Facts ¶ 130. With respect to the Wall Days Inn in particular, DIA and
HFS collected approximately \$90,000 in royalties and advertising fees
from the Wall hotel during the first three years of its existence. U.S.
Facts ¶¶ 128-29. Given that the hotel has now been open for an
additional year, the total is likely to be closer to \$120,000. The
United States urges the Court to impose civil penalties on DIA and HFS
of sufficient magnitude to render their conduct with respect to the Wall
Days Inn unprofitable, and to deter others from engaging in a pattern or
practice of discrimination like that engaged in by DIA and HFS.

**IV. CONCLUSION**

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

Respectfully submitted,

ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Acting Deputy Chief

Disability Rights Section

Civil Rights Division

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

THOMAS M. CONTOIS

MARGARITA M. PRIETO

JEANINE M. WORDEN

ROBERTA STINAR KIRKENDALL

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-0196

DIANA RYAN

Assistant U.S. Attorney

226 Federal Building

515 Ninth Street

Rapid City, South Dakota 57701

Dated: August 28, 1997

[^1]: ^?^The United States entered into a consent decree with the
    owners, architect, and builder of the Wall Days Inn, and those
    defendants are no longer parties to this action. The Court approved
    the consent decree on June 5, 1997.

[^2]: ^?^A court may grant summary judgment when \"the pleadings,
    depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine
    issue as to any material fact and that the moving party is entitled
    to judgment as a matter of law.\" Fed. R. Civ. P. 56(c). [Celotex
    Corp. v. Catrett]{.underline}, 477 U.S. 317 (1986); [Anderson v.
    Liberty Lobby, Inc.]{.underline}, 477 U.S. 242 (1986); [Matsushita
    Elec. Indus. Co., Ltd. v. Zenith Radio Corp.]{.underline}, 475 U.S.
    574 (1986). *See also* [Madel v. FCI Marketing, Inc.]{.underline},
    116 F.3d 1247, 1251 (8th Cir. 1997) ("Summary judgment is proper
    only if the evidence taken in the light most favorable to the
    nonmoving party fails to create a genuine issue of material fact and
    one party is entitled to judgment as a matter of law."); [Reliance
    Ins. Co. v. Shenandoah South, Inc.]{.underline}, 81 F.3d 789, 791
    (8th Cir. 1996)(same).

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

[^4]: ^?^There is no dispute that the hotel qualifies as new
    construction under title III of the ADA, or that it is subject to
    the requirements of section 303. The Wall Days Inn is a place of
    lodging with five or more rooms; the last application for a building
    permit for the facility occurred after January 26, 1993, and the
    facility was first occupied after January 26, 1993. U.S. Facts ¶¶
    7-9. *See* 28 C.F.R. § 36.401.

[^5]: ^?^The ADA's Standards for Accessible Design require that, "in
    order to provide persons with disabilities a range of options
    equivalent to those available to other persons served by the
    facility, \[a hotel's accessible\] sleeping rooms and suites . . .
    shall be dispersed among the various classes of sleeping
    accommodations available" at the hotel. Standards § 9.1.4. The Days
    Inn Planning and Design Standards Manual (PDSM) calls for all
    accessible rooms to have only one bed. PDSM, Ex. 4, § 10.04.B, at
    107-08.

[^6]: ^?^With certain exceptions, two-story facilities are exempted from
    this requirement. Standards § 4.1.3(5). Thus, the Wall Days Inn is
    required to have an elevator because it has three stories. *See*
    U.S. Facts ¶ 77.a.

[^7]: ^?^The registration desk at the Wall Days Inn is 43 1/4 inches
    high. U.S. Facts ¶ 78.f. A drawing of the registration desk in the
    PDSM shows the desk with a height of 46 inches. PDSM, Ex. 4,
    Appendix B, Section A, at 147. The Standards require that at least a
    portion of the registration desk be no more than 36 inches high.
    Standards § 7.2(2).

[^8]: ^?^The PDSM calls for the doors to standard guest room bathrooms
    to be 28 inches wide (2 feet, 4 inches). PDSM, Ex. 4, § 5.02.E.1 at
    39. The Standards require that doors into and within
    [all]{.underline} guest rooms provide a clear opening width of at
    least 32 inches. Standards § 9.4. It is physically impossible, of
    course, for a 28 inch door to provide a 32 inch opening. *See*
    Deposition of Harold Dean Kiewel (Kiewel Dep.), Ex. 20, at 81-83.

[^9]: ^?^Because they are so closely related, DIA and HFS will be
    referred to collectively as "DIA," unless the context requires
    otherwise. In addition to being a wholly owned subsidiary of HFS,
    DIA and HFS have the same address and share office space, and file
    consolidated annual reports and financial statements. U.S. Facts ¶¶
    117-18. Moreover, DIA has no employees; all DIA functions are
    carried out by HFS employees. U.S. Facts ¶ 119.

[^10]: ^?^DIA and HFS designated Mr. William Keeble, Senior Vice
    President of Operations for the Hospitality Division of HFS, to
    testify on their behalf, pursuant to Fed. R. Civ. P. 30(b)(6).
    Keeble Dep., Ex. 19, at 10-12.

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

[^12]: ^?^As the discussion in Part II.D., above, indicates, these kinds
    of involvement in the design and construction of new Days Inn hotels
    were not unique to the Wall Days Inn, but rather were typical of
    DIA's involvement in the design and construction of all new Days Inn
    hotels.

[^13]: ^?^Title III\'s general mandate prohibiting discrimination
    against individuals with disabilities in public accommodations is
    set out in section 302(a) of the Act, which provides that

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

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

[^14]: ^?^Excepted from the definition of commercial facilities are
    aircraft, certain railroad facilities and equipment, and certain
    facilities covered or exempted from coverage under the Fair Housing
    Act. 42 U.S.C. § 12181(2).

[^15]: ^?^The Wall Days Inn, for instance, is a non-residential facility
    whose operations affect commerce, and thus is a \"commercial
    facility.\" In addition, the hotel is a \"public accommodation,\" as
    it falls within one of the statute\'s categories of public
    accommodation: it is \"an inn, hotel, motel, or other place of
    lodging,\" within the meaning of section 301(7)(A). *See* 42 U.S.C.
    §§ 12181(7)(A).

[^16]: ^?^The section in question became section 303(a)(2), which
    defines illegal discrimination to include a failure, when altering a
    facility or portion of a facility, to make those alterations in a
    manner that the altered portions of the facility are readily
    accessible to and usable by individuals with disabilities. 42 U.S.C.
    § 12183(a)(2).

[^17]: ^?^Moreover, limiting section 303 coverage to those parties
    identified in section 302 makes no sense from a practical
    perspective. While parties who own, operate, or lease public
    accommodations are the obvious choice for the obligations related to
    the day to day operation of the businesses imposed by section 302,
    *see* n.13, *supra*, parties who lease or operate a facility
    frequently will have nothing whatever to do with the initial design
    and construction of the facility. Indeed, it is not at all clear how
    one would even identify who it is that "operates" a facility that
    has not yet been built.

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

[^19]: ^?^Congress recognized that modifying or retrofitting a facility
    after it is built can be very costly (which is why Congress imposed
    only a limited obligation to remove architectural barriers to access
    in facilities in existence prior to the ADA\'s effective date ---
    *see* 42 U.S.C. § 12182(b)(2)(A)(iv)), and therefore sought to have
    new facilities designed and constructed to be accessible from the
    beginning.

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

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

[^20]: ^?^Section 804(f)(3)(C) of the Fair Housing Act provides that

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

    42 U.S.C. § 3604(f)(3)(C).

[^21]: ^?^The term "operates" is not defined in the statute. One common
    dictionary defines the term to mean "to control or direct the
    functioning of," "to conduct the affairs of," or "to bring about or
    effect." [Webster's II New Riverside University
    Dictionary]{.underline} 823 (1988). Similarly, Black's Law
    Dictionary defines "operate" as "to perform a function, or
    operation, or produce an effect." [Black's Law
    Dictionary]{.underline} 984 (5th ed. 1979).

[^22]: ^?^Similar cases brought by the United States, each alleging
    violations of section 303 of the ADA, are pending against DIA and
    HFS in four other United States District Courts. U.S. Facts ¶ 4.
    Accordingly, this case may or may not be the first in which DIA and
    HFS are held to have violated title III of the ADA.