UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 97-B-2135

COLORADO CROSS-DISABILITY COALITION

and

JULIE REISKEN, and DEBBIE LANE, for themselves and all others similarly
situated,

Plaintiffs,

v\.

TACO BELL CORPORATION,

Defendant.

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

MEMORANDUM OF UNITED STATES AS [AMICUS CURIAE]{.underline}

IN OPPOSITION TO TACO BELL\'S SUMMARY JUDGMENT MOTION

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

**[INTRODUCTION]{.underline}**

The Attorney General of the United States (\"Attorney General\")
provides this memorandum as [amicus curiae]{.underline}, to explain the
requirements of the Americans with Disabilities Act (\"ADA\"), a statute
which she is entrusted to administer, as it relates to Taco Bell\'s
Motion for Summary Judgment. As argued more fully below, Federal law and
the Department of Justice\'s regulations do not require Plaintiffs to
give notice to State officials before filing suit in Federal Court, and
do require Taco Bell\'s customer service queue lines to be accessible to
people who use wheelchairs.

**[FACTS AND PROCEDURAL HISTORY]{.underline}**

Named Plaintiffs Julie Reiskin and Debbie Lane have disabilities and
use, respectively, a motorized wheelchair and an electric three-wheel
scooter for mobility. Third Amended Class Action Complaint at ¶¶ 8, 9.
Colorado Cross-Disability Coalition alleges that it has members who also
use motorized wheelchairs and three-wheel scooters for mobility.
[Id.]{.underline} at ¶ 10. Plaintiffs allege that Taco Bell
discriminated against them and members of a putative class on the basis
of disability by (1) constructing two Taco Bell restaurants in Colorado
after the effective date of the ADA in a manner that violates the ADA
Standards for Accessible Design (hereinafter, \"Standards\"), and (2)
failing to remove barriers to access for people with disabilities in an
older Taco Bell facility when it is readily achievable to do so.[^1]
These allegations focus primarily on the width and configuration of
customer service queues.

On December 21, 1998, Taco Bell filed a Motion for Summary Judgment.[^2]
Taco Bell first argues that Plaintiffs\' ADA claims should be dismissed
for failure to notify the State prior to filing this suit. Taco Bell
erroneously interprets title III of the ADA to require private
plaintiffs to give State officials 30 days\' notice prior to filing suit
if the claims arose in States --- like Colorado --- that have
anti-discrimination laws comparable to the ADA.

Second, Taco Bell incorrectly argues that the ADA does not apply to
queue lines, so even queue lines that are inaccessible to some people
with disabilities do not violate the law.

Third, Taco Bell argues that even if queue lines are covered by the ADA,
it is in compliance.[^3]

Taco Bell is wrong on all three counts. Its Motion should be denied.

On January 19, 1999, Plaintiffs filed a Motion for Partial Summary
Judgment, arguing that a summary finding was appropriate that the two
\"new construction\" facilities violate the ADA. The United States fully
supports Plaintiffs\' position and adopts it by reference.

**[ARGUMENT]{.underline}**

> **I. Standard of Review**

While Taco Bell terms its Motion as one for summary judgment, it is more
properly characterized as a motion to dismiss with respect to the issues
of whether there is a pre-suit notice requirement under title III and
whether customer queue lines are covered by the ADA. Neither of these
issues requires fact-finding. With respect to these issues, therefore,
the Court should treat Taco Bell\'s Motion as a motion to dismiss and
should dismiss the suit \"only when it appears that the plaintiff can
prove no set of facts in support of the claims that would entitle him to
relief, accepting the well-pleaded allegations of the complaint as true
and construing them in the light most favorable to the plaintiff.\"
[Yoder v. Honeywell, Inc.]{.underline}, 104 F.3d 1215, 1224 (10th Cir.)
(internal citations omitted), [cert. denied]{.underline}, \_\_\_ U.S.
\_\_\_, 118 S. Ct. 55, 139 L.Ed.2d 19 (1997).

Only the third issue --- whether Taco Bell has complied with title III
--- is properly the subject of a motion for summary judgment. As to this
issue, summary judgment is appropriate if the pleadings and supporting
documents 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.
Federal Rule of Civil Procedure 56(c). When applying this standard, the
Court should examine the factual record and draw reasonable inferences
in the light most favorable to the party opposing summary judgment.
[Kaul v. Stephan]{.underline}, 83 F.3d 1208, 1212 (10th Cir. 1996).
\"\[T\]he relevant inquiry is whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.\" [Bingaman v.
Kansas City Power & Light Co.]{.underline}, 1 F.3d 976, 980 (10th Cir.
1993) (quotation marks and citation omitted).

> **II. Title III does not require individuals alleging disability
> discrimination to file pre-suit notice with State agencies.**

The first issue before the Court is whether title III contains a
requirement that private citizens provide notice to State agencies
before filing suit. It does not. The majority of courts addressing this
issue \-- including this Court \-- has correctly rejected Taco Bell\'s
argument that title III contains a pre-suit notice requirement.
[Colorado Cross-Disability Coalition v. Hermanson Family Ltd.
Partnership I]{.underline}, slip op. at 5-11 (D. Colo. Civil No.
96-WY-2492-AJ, Mar. 3, 1997); [Soignier v. American Bd. of Plastic
Surgery]{.underline}, 92 F.3d 547 (7th Cir. 1996), [cert.
denied]{.underline}, 117 S. Ct. 771 (1997) (\"there is no first
obligation to pursue administrative remedies\" prior to bringing a claim
under title III of the ADA); [Botosan v. Fitzhugh]{.underline}, 13 F.
Supp.2d 1047 (S.D. Cal. 1998); [Doukas v. Metropolitan Life Ins.
Co.]{.underline}, No. CV-4-478-SD, 1997 WL 833134 (D.N.H. Oct. 21,
1997); [Bercovitch v. Baldwin School]{.underline}, 964 F. Supp. 597, 605
(D. P.R. 1997), [rev\'d on other grounds]{.underline}, 133 F.3d 141 (1st
Cir. 1998); [Coalition of Montanans Concerned with Disabilities Inc. v.
Gallatin Airport Auth.]{.underline}, 957 F. Supp. 1166, 1169 (D. Mont.
1997); [Grubbs v. Medical Facilities of America, Inc.]{.underline},
CV-A-94-0029-D, 1994 WL 791708, \*2-3 (W.D. Va. Sept. 23, 1994). Copies
of [Doukas]{.underline}, [Hermanson]{.underline}, and
[Grubbs]{.underline} are attached at Exhibit 1.

The few decisions on which Taco Bell relies are wrongly decided and have
weak precedential value. [See]{.underline} [Howard v. Cherry Hills
Cutters, Inc.]{.underline} 979 F. Supp. 1307, 1309 (D. Colo. 1997)
(\"[Howard II]{.underline}\"); [Mayes v. Allison]{.underline}, 983 F.
Supp. 923 (D. Nev. 1997); [Daigle v. Friendly Ice Cream
Corp.]{.underline}, 957 F. Supp. 8 (D. N.H. 1997); [Bechtel v. East Penn
Sch. Dist. of Lehigh County]{.underline}, 1994 WL 3396 at \*2 (E.D. Pa.
Jan. 4, 1994).[^4]

This Court is faced with inconsistent decisions within the Federal
District Court for the District of Colorado. [Compare]{.underline}
[Colorado Cross-Disability Coalition v. Hermanson Family Ltd.
Partnership I]{.underline}, slip op. at 5-11 (D. Colo. Civil No.
96-WY-2492-AJ, Mar. 3, 1997) (\"[Hermanson]{.underline}\") with [Howard
v. Cherry Hills Cutters, Inc.]{.underline} 979 F. Supp. 1307, 1309 (D.
Colo. 1997) (\"[Howard II]{.underline}\"). The better reasoned decision
--- and the one this Court should follow --- is [Hermanson]{.underline}.
In an earlier case, [Howard v. Cherry Hill Cutters, Inc.]{.underline},
935 F. Supp. 1148 (D. Colo. 1996) (\"[Howard I]{.underline}\"), the
Court appeared to assume \-- without analysis \-- that the language of
title III incorporated by reference all of section 204 of the Civil
Rights Act, including the 30-day notice requirement of subparagraph (c).
[Howard I]{.underline} at 1150. Significantly, however, in
[Hermanson]{.underline}, after conducting an exhaustive analysis of the
topic, the Court dismissed [Howard I]{.underline} as having no
precedential value on this issue, stating that it \"misstates the
applicable statutory language.\"[^5] [Hermanson]{.underline} at 8.

As discussed below, given the plain language of title III, well-settled
canons of statutory construction, title III\'s legislative history, and
the Department\'s positions articulated in its own title III regulation
and Technical Assistance Manual, this Court should follow the
[Hermanson]{.underline} and [Soignier]{.underline} line of cases and
deny Taco Bell\'s motion.

> **1. The plain language of title III does not include any requirement
> for pre-suit notice.**

Section 308(a)(1) of the ADA provides in relevant part:

> The remedies and procedures set forth in section 2000a-3(a) of this
> title are the remedies and procedures this subchapter provides to any
> person who is being subjected to discrimination on the basis of
> disability in violation of this subchapter or who has reasonable
> grounds for believing that such person is about to be subjected to
> discrimination in violation of section 12183.

42 U.S.C. § 12188(a)(1). Subsection (a) of section 204 of the Civil
Rights Act of 1964 \-- the part

that Congress specifically incorporates by reference into title III \--
defines the procedures applicable to private rights of action to include
(1) intervention by the Attorney General in a case certified by the
Attorney General to be of \"general public importance\" and (2)
\"\[u\]pon application by the complainant and in such circumstances as
the court may deem just,\" appointment of an attorney for the
complainant and the commencement of suit without the payment of fees,
costs, or security.[^6]

Neither the \"remedies\" nor the \"procedures\" of subsection (a)
includes any requirement of notice to any State or local authority.

The notice requirement that Taco Bell seeks to impose comes from
subsection (c) of section 204, but title III of the ADA, by its own
terms, specifically incorporates only subsection (a).

Title III of the ADA is not a carbon copy of title II of the 1964 Civil
Rights Act, although both prohibit discrimination in places of public
accommodation. Congress addressed disability discrimination separately
because it recognized that disability discrimination is manifested in
ways that are distinct from discrimination on the basis of race, color,
religion, or national origin. Congress could have simply amended title
II of the 1964 Act to add disability as a prohibited basis for
discrimination. Instead, it enacted a comprehensive statute addressing
issues such as architectural and communication barriers, 42 U.S.C. §
12182(b)(2)(A)(iv), and the provision of auxiliary aids and services
necessary for effective communication, 42 U.S.C. § 12182(b)(2)(A)(iii),
that were not relevant to the kinds of discrimination prohibited by the
1964 Act.

When crafting title III of the ADA, Congress borrowed only one narrow
part of the Civil Rights Act\'s remedial structure: specifically,
subsection (a) of section 204. Despite Taco Bell\'s protestations to the
contrary, no other subsection of section 204 was incorporated into title
III of the ADA by Congress. [Soignier v. American Bd. of Plastic
Surgery]{.underline}, No. 95 C 2736, 1996 WL 6553, at \*1 (N.D. Ill.,
Jan. 8, 1996) ("\[b\]y the express terms of § 12188, the only provision
adopted for subchapter III of the ADA is § 2000a-3(a). Although
subsection (c) limits when subsection (a) may be invoked, Congress only
cited the latter. Therefore, there is no requirement that parties
provide notice to a State or local authority"), [aff\'d]{.underline}, 92
F.3d 547 (7th Cir. 1996), [cert. denied]{.underline}, 117 S. Ct. 771
(1997). Congress could simply have repeated verbatim the language of
section 204(a) in title III of the ADA to indicate the remedies and
procedures it intended to provide to aggrieved persons. If it had done
so, there would be no argument that Congress intended to require such
persons to provide pre-suit notice to State or local governmental
agencies. The fact that Congress used incorporation by reference to
subsection (a) as a shorthand method to refer to the remedies and
procedures it intended to provide should not change that result.

In any inquiry into the meaning of a statute, \"\[t\]he language of the
statute \[is\] the starting place.\" [Staples v. United
States]{.underline}, 511 U.S. 600, 605 (1994). The Supreme Court has
instructed \"time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it says
there.\" [Connecticut Nat\'l Bank v. Germain]{.underline}, 503 U.S. 249,
253-254 (1992). Here, title III only references subsection (a) of
section 204 of the Civil Rights Act; the Court should not broaden title
III\'s statutory provision beyond its plain language.

> **2. Well-settled canons of statutory construction require rejection
> of Taco Bell\'s arguments.**

It is well-settled that when one statute is modeled on another, but
omits a specific provision contained in the original, \"a strong
presumption exists that the legislature intended to omit that
provision.\" [Kirchner v. Chattanooga Choo Choo]{.underline}, 10 F.3d
737, 738-739 (10th Cir. 1993), [citing]{.underline} [Bank of America v.
Webster]{.underline}, 439 F.2d 691, 692 (9th Cir. 1971); [Crane Co. v.
Richardson Constr. Co.]{.underline}, 312 F.2d 269, 270 (5th Cir. 1973).
[See also]{.underline} Frankfurter, [Some Reflections on the Reading of
Statutes]{.underline}, 47 Colum. L. Rev. 527, 536 (1947) (in construing
a statute, \"\[o\]ne must also listen attentively to what it does not
say\").

The assumption that Congress meant to borrow more than subsection (a) of
section 204, even though it referred only to that subsection, leads to
incongruous results. For example, subsection (d), recited above at n.6,
which applies when alleged discrimination takes place in a State where
there is no State law prohibiting such discrimination, allows a court to
refer the matter to the Department of Justice\'s Community Relations
Service (\"CRS\") for a limited time if it believes there is a
\"reasonable possibility of obtaining voluntary compliance.\" Congress
could not have intended subsection (d) to apply when ADA title III
actions are filed: the ADA did not expand the jurisdiction of the CRS to
allow it to mediate issues of discrimination based on disability.

Additionally, it does not make sense to assume that Congress meant to
incorporate subsection (b) when it referred only to subsection (a) of
section 204. Subsection (b) allows a court to award attorney\'s fees to
a prevailing party other than the United States in an action brought
pursuant to subsection (a). [See]{.underline} subsection (b), which is
set forth herein at n.6, above. The ADA contains a separate explicit
mandate for attorney\'s fees, 42 U.S.C. § 12205, that is applicable to
all civil actions and administrative proceedings brought pursuant to the
ADA. Taco Bell's reading of the statute would render the attorney's fee
provisions of the ADA superfluous, violating a fundamental tenet that
statutes should be not be read so as to render terms meaningless.
[United States v. Campos-Serrano]{.underline} 404 U.S. 293, 301 n.14
(1971) ("(A) statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.\").

As courts have recognized, a statute \"is as significant for what it
omits as for what it says.\" [In re TMI]{.underline}, 67 F.3d 1119, 1123
(3d Cir. 1995), [cert. denied]{.underline}, [Metropolitan Edison Co. v.
Dodson]{.underline}, 517 U.S. 1163 (1996), [quoting]{.underline}
[Williams v. Wohlgemuth]{.underline}, 540 F.2d 163, 169 n.30 (3d Cir.
1976). The inherent differences between title II of the 1964 Act and
title III of the ADA demonstrate the error in Taco Bell\'s attempt to
pick and choose, on its own, portions of the 1964 Act to incorporate
into the ADA. Rather, the plain language of title III\'s section 308
restricts the incorporation by reference to the terms of subsection (a)
of section 204 only.

Courts examining similar situations under other laws have likewise
refused to \"borrow\" provisions which were not specifically
incorporated into a new law by Congress. In [Sperling v. Hoffman-La
Roche, Inc.]{.underline}, 24 F.3d 463 (3rd Cir. 1994), the Third Circuit
considered whether the filing of a representative complaint under the
Age Discrimination in Employment Act, 29 U.S.C. § 626(b), tolled the
statute of limitations for unnamed employees to become members of the
opt-in class. At the time the action was filed, the ADEA expressly
incorporated the statute of limitations contained in section 6 of the
Portal-to-Portal Act, 29 U.S.C. § 255. 29 U.S.C. § 626(e)(1) (1991).
Hoffman-La Roche argued that the tolling question should be governed by
section 7 of the Portal-to-Portal Act, 29 U.S.C. § 256, which was not
incorporated specifically into the ADEA. Section 7 would have required
employees who wished to opt-in to do so within the section 6 statute of
limitations. The Third Circuit noted that \"incorporation of selected
provisions into section 7(b) of \[the\] ADEA indicates that Congress
deliberately left out those provisions not incorporated.\" 24 F.3d at
470.

> **3. Legislative history illustrates that Congress did not intend to
> mandate any prerequisites to filing a federal action under title
> III.**

The unambiguous language of title III obviates the need to examine its
legislative history. [Chevron , U.S.A., Inc. v. Natural Resources
Defense Council, Inc.]{.underline}, 467 U.S. 837, 844 (1984); [Salt Lake
City v. Western Area Power Admin.]{.underline}, 926 F.2d 974, 977 (10th
Cir. 1991), [rehearing denied]{.underline} (Apr. 18, 1991). However, a
colloquy between Senator Harkin, one of the primary sponsors of the ADA
and the floor manager of the bill, and Senator Bumpers, a co-sponsor,
further establishes that there is no pre-suit administrative requirement
under title III:

> MR. BUMPERS. \* \* \* if somebody who is disabled goes into a place of
> business, and we will just use this hypothetical example, and they
> say, \"You do not have a ramp out here and I am in a wheelchair and I
> just went to the restroom here and it is not suitable for wheelchair
> occupants,\" are they permitted at that point to bring an action
> administratively against the owner of that business, or do they have
> to give the owner some notice prior to pursuing a legal remedy?
>
> MR. HARKIN. First of all, Senator, there would be no administrative
> remedy in that kind of a situation. The administrative remedies only
> apply in the employment situation. In the situation you are talking
> about \--
>
> MR. BUMPERS. That is true. So one does not have to pursue or exhaust
> his administrative remedies in title III if it is title III that is
> the public accommodations.

135 Cong. Rec. 19859 (1989). [See also]{.underline} [Botosan v.
Fitzhugh]{.underline}, 13 F. Supp.2d 1047, 1050 (S.D. Cal. 1998)
(finding that "the legislative history of the ADA does not indicate that
Congress intended to adopt subsection(c)."); [Grubbs v. Medical
Facilities of America, Inc.]{.underline}, CV-A-94-0009-D, 1994 WL
791708, at \*2 (W.D. Va. Sep. 23, 1994) (noting that the legislative
history of the ADA \"indicates that Congress did not intend to require
exhaustion of administrative remedies for persons with disabilities\").

> **4. The Department of Justice\'s title III regulation and Technical
> Assistance Manual require rejection of Taco Bell\'s argument.**

The Supreme Court recently held that the Department of Justice is
entitled to substantial deference in its interpretations of the ADA.
[Bragdon v. Abbott]{.underline}, \_\_\_ U.S. \_\_\_, 118 S. Ct. 2196,
2208 (1998) (\"As the agency directed by Congress to issue implementing
regulations, to render technical assistance explaining the
responsibilities of covered individuals and institutions, and to enforce
Title III in court, the Department\'s views are entitled to
deference.\"). The Department of Justice\'s title III regulation
implementing the statutory right of action for private citizens mandated
by section 308(a) \[42 U.S.C. § 12188(a)(1)\] is codified at 28 C.F.R. §
36.501(a). Significantly, section 36.501(a) incorporates
[only]{.underline} those portions of section 204 of the Civil Rights Act
that are contained in subsection (a) \[42 U.S.C. § 2000a-3(a)\]
including (1) intervention by the Attorney General, and (2) appointment
of an attorney for the complainant and the commencement of suit without
the payment of fees, costs, or security.[^7] The regulation provides:

> Any person who is being subjected to discrimination on the basis of
> disability in violation of this Act or this part or who has reasonable
> grounds for believing that such person is about to be subjected to
> discrimination in violation of section 303 of the Act or subpart D of
> this part may institute a civil action for preventive relief,
> including an application for a permanent or temporary injunction,
> restraining order, or other order. Upon timely application, the court
> may, in its discretion, permit the Attorney General to intervene in
> the civil action if the Attorney General or his or her designee
> certifies that the case is of general public importance. Upon
> application by the complainant and in such circumstances as the court
> may deem just, the court may appoint an attorney for such complainant
> and may authorize the commencement of the civil action without the
> payment of fees, costs, or security. Nothing in this section shall
> require a person with a disability to engage in a futile gesture if
> the person has actual notice that a person or organization covered by
> title III of the Act or this part does not intend to comply with its
> provisions.

28 C.F.R. § 36.501(a). There is no mention whatsoever of any requirement
for prospective title III plaintiffs to provide pre-suit notification to
State agencies. The absence of any such mention is cogent evidence that
the Department does not interpret either the statute or the regulation
to require pre-suit notification to State agencies.

Likewise, the Department\'s Title III Technical Assistance Manual, which
the Department publishes pursuant to a statutory requirement that the
Attorney General provide technical assistance on ADA compliance
obligations,[^8] makes no mention of a need to exhaust administrative
remedies. [See]{.underline} [The Americans with Disabilities Title III
Technical Assistance Manual]{.underline}, §§ III-8.1000, 8.2000. Courts
routinely defer to the Department\'s views as expressed in the Technical
Assistance Manuals. [Bragdon]{.underline}, 118 S. Ct. at 2208-09;
[Coalition of Montanans Concerned with Disabilities v. Gallatin Airport
Authority]{.underline}, 957 F. Supp. 1166, 1169 (D. Mont. 1997);
[Paralyzed Veterans of America v. Ellerbe Becket Architects &
Engineers]{.underline}, 950 F. Supp. 389, 391-92 (D.D.C. 1996); [Fiedler
v. America Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35, 36 (D.D.C.
1994).

> **II. Taco Bell\'s customer service queues must comply with the ADA
> Standards for Accessible Design.**
>
> **A. Coverage of Customer Service Queues Pursuant to the Title III
> Regulatory Standards for Accessible Design.**

In the ADA, Congress directed the Attorney General to issue title III
regulations and specifically required that the regulations include, or
incorporate by reference, architectural accessibility standards. 42
U.S.C. §§ 12183(a), 12186(b). The Department of Justice issued the ADA
Standards for Accessible Design (\"Standards\") as part of the title III
regulation.[^9] 28 C.F.R. pt. 36, Appendix A.

Section 3.5 of the Standards defines an \"accessible route\" in relevant
part as \"a continuous unobstructed path connecting all accessible
elements and spaces of a building or facility. Interior accessible
routes may include corridors, floors, ramps, elevators, lifts, and clear
floor space at fixtures.\" Nowhere do the Standards say that this is an
exhaustive list that precludes other things, like queue lines, that
affect the usability of a space for persons with disabilities and allow
them to move unrestricted from one element to another.

Section 4.3.3 of the Standards generally requires a route to be at least
42\" wide when people who use wheelchairs must make a 180-degree turn
around an obstruction and illustrates the situation facing people who
use Taco Bell\'s customer service queues in Fig. 7(b):

Taco Bell\'s queue lines --- at least at the restaurants for which
discovery has taken place --- are substantially narrower than the 42\"
minimum width. According to Plaintiffs, the \"existing facility\" has
queue lines approximately 25\" wide, while the queue lines at the two
\"new construction\" facilities are approximately 36\" wide. None of
these provides adequate space for users of electric wheelchairs to
negotiate the twists and turns of the queue.

In defense of its maintenance of customer service queues that do not
comply with the accessible route provisions of the Standards, Taco Bell
argues that they do not fall within the definition of \"accessible
route.\" Memorandum In Support of Motion for Summary Judgment at 10-12.
Taco Bell argues, therefore, that it complies with title III even if its
queue lines do not meet the minimum width requirements applicable to
accessible routes. Taco Bell\'s assertion is without merit. Taco Bell
does not contest that service counters are one form of \"element\" that
is subject to the Standards. Queue lines, therefore, fall squarely
within the definition of \"accessible route\" because they provide the
route from the restaurant\'s entrance to the service counter. Moreover,
Taco Bell has [chosen]{.underline} to use queue lines as its preferred
way to move the public from one element --- the entrance --- to another
--- the service counter.[^10]

Taco Bell also argues that it provides a separate accessible route from
the entrance to the service counter for people with disabilities, rather
than making them proceed through the queue. The \"separate\" route is
anything but accessible: during at least the busiest hours, a chain
blocks the access for all. People with disabilities who try to use the
\"chained\" access must remove the chain or summon help. People who do
not have the physical ability to unhook the chain are completely unable
to approach the service counter unassisted. They are forced to impose
themselves on others and to become objects of attention, perhaps even
hostility, simply to have the access that others effortlessly enjoy.
This violates a concept incorporated throughout the ADA that people with
disabilities generally should not be dependent on others to access the
goods and services available to others. [See]{.underline},
[e.g.]{.underline}, 42 U.S.C. § 12101(a)(8) (one of the Nation\'s proper
goals is to assure \"equality of opportunity\" and \"independent
living\"); Standards § 4.11.3 (\"If platform lifts are used then they
shall facilitate [unassisted]{.underline} entry, operation, and exit
from the lift . . . \") (emphasis added); Department of Justice\'s Title
II Technical Assistance Manual at II-5.2000 (carrying an individual with
a disability is not an acceptable alternative to providing full
accessibility as it is \"contrary to the goal of providing accessible
programs, which is to foster independence.\").

Even if, however, Taco Bell employees never engage the chain and the
\"alternative\" access is always available, Taco Bell still has not
complied with the Standards. Consistent with the overarching ADA
preference for integration over segregation of people with disabilities,
the Standards require that \"the accessible route shall, to the maximum
extent feasible, coincide with the route for the general public.\"
Standards § 4.3.2. Taco Bell\'s \"separate\" route by its very nature
does not meet this requirement.

> **1. \"Newly constructed\" facilities.**

Title III defines discrimination to include the failure to design and
construct facilities for first occupancy after January 26, 1993, that
are readily accessible to and usable by persons with disabilities. 42
U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a)(1). Newly constructed
facilities must comply with the Standards, 28 C.F.R. § 36.406, including
the requirement that the accessible route and the route for the general
public are one and the same, to the maximum extent feasible. Standards §
4.3.2. Drawing all inferences in the light most favorable to Plaintiffs,
as the Court must for the purposes of this Motion, Taco Bell has not
demonstrated that it could not meet the \"to the maximum extent
feasible\" standard of making fully accessible customer service queues,
which would have ensured that the accessible route and the route for the
general public coincide. In fact, it appears that it would have been
easy to design and construct fully accessible Taco Bell facilities ---
that would have included accessible customer service queues. Taco Bell
has not put forth a single piece of evidence --- whether by affidavit,
deposition, or otherwise --- which would substantiate any claim that it
could not meet the standard \"to the maximum extent feasible\" and make
the accessible route and the route for the general public \-- the
customer service queues \-- one and the same.

Taco Bell asserts that it has complied with the Standards by providing
\"equivalent facilitation\" for the minimum width requirements of
section 4.3.2. Newly constructed facilities are able to depart from
strict adherence of the design specifications of the Standards if they
provide a substantially equivalent or greater level of access for people
with disabilities. Standards § 2.2. Taco Bell wrongly argues that its
alternative of allowing persons who cannot negotiate the narrow customer
service queues to proceed directly to the counter provides equivalent
facilitation. The mere fact that their \"alternative\" access is blocked
--- even intermittently --- by a chain which must be unhooked plainly
defeats this argument.

The concept of \"equivalent facilitation\" is designed to allow public
accommodations the flexibility to design new and more effective ways for
providing access to people with disabilities.[^11] Standards § 2.2.
However, flexibility is not a loophole. \"Equivalent facilitation\"
should not be used to undermine other provisions of the Standards, such
as the requirements that the accessible route and the route for the
general public coincide \"to the maximum extent feasible,\" Standards §
4.3.2, and that people with disabilities be afforded independent access.
It is not intended to provide a means for businesses to circumvent the
architectural and design specifications of the Standards to justify
\"business as usual,\" or to circumvent the substantive anti-segregation
provisions of title III (see discussion, below, at 22-24). If the
concept of \"equivalent facilitation\" allowed businesses such as Taco
Bell to provide segregated customer service queues where it would have
been easy to construct fully accessible integrated service lines, one of
the main purposes of the ADA would be significantly undermined: \"to
provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.\" 42 U.S.C.
12101(b)(2).

> **2. Summary judgment is premature for restaurants that are \"existing
> facilities\" because barrier removal must be evaluated upon specific
> facts not yet developed.**

Title III does not require public accommodations to bring all
\"existing\" facilities \-- those designed and constructed for first
occupancy prior to January 26, 1993 \-- into immediate and comprehensive
compliance with the Standards. Instead, public accommodations are
required to modify existing facilities to be more accessible when it is
\"readily achievable\" to do so. 42 U.S.C. § 12182(b)(2)(A)(iv); 28
C.F.R. § 36.304. Taco Bell requests the Court to hold, in a summary
judgment, that it is not readily achievable to reconfigure or widen the
customer service queue in its existing facility to make it comply with
Fig. 7(b) of the Standards. Taco Bell\'s Memorandum In Support of Motion
for Summary Judgment at 13-16. However, genuine issues of material fact
remain as to this issue that make summary judgment inappropriate.

Readily achievable means \"easily accomplishable and able to be carried
out without much difficulty or expense.\" 42 U.S.C. § 12181(9); 28
C.F.R. § 36.104. In determining whether a particular act of barrier
removal is readily achievable, the finder of fact must consider factors
including, but not limited to: the nature and cost of the action, the
financial resources associated with the particular facility, Taco Bell
Corporation\'s overall financial resources, the number of employees, and
the effect of the change on expenses and resources. [Id.]{.underline}

Here, Taco Bell argues that it will lose some seating capacity if it
reconfigures the existing facility to include an accessible customer
service queue. Taco Bell\'s Memorandum in Support of Motion for Summary
Judgment at 14. It also argues that it will cost \$10,000 per facility
to modify the balustrades, ropes, and chains, and repair the tile.
[Id.]{.underline} Plaintiffs will no doubt contest these claims. Even if
they are accurate, they are not the sole measure of whether the barrier
removal is readily achievable. For instance, Taco Bell has provided no
information about the resources available to that entity or to Taco Bell
Corporation as a whole. If Taco Bell can demonstrate that there are few
or no resources to accomplish these changes, then it is probably not
readily achievable to widen the customer service queues. If, on the
other hand, Taco Bell has a wealth of resources, then significant
barrier removal may be readily achievable. There is insufficient
information on the record to make a determination that barrier removal
at the \"existing\" facility is not readily achievable.

When barrier removal is not readily achievable, public accommodations
must take whatever alternative measures are readily achievable to
provide their goods and services to people with disabilities in a
non-discriminatory manner. 42 U.S.C. § 12182(b)(2)(A)(v); 28 C.F.R. §
36.305. After arguing that it is not readily achievable to reconfigure
or widen the customer service queues in the existing facility,[^12] Taco
Bell states that it has taken the readily achievable alternative of
providing people with disabilities with direct access to the service
counter. Taco Bell\'s Memorandum In Support of Motion for Summary
Judgment at 16-18. The Court need not reach this issue since summary
judgment is inappropriate with respect to whether barrier removal is
readily achievable. Nevertheless, even if the Court were to address this
issue, the alternative access is not accessible, as it is routinely
blocked by a chain that physically cannot be removed by many people with
disabilities.

> **B. Inaccessible customer service queues discriminate against people
> with disabilities.**

When passing the ADA, Congress replaced \"business as usual,\" which
often excluded persons with disabilities or treated them as second class
citizens, with an integration mandate under which people with
disabilities are provided equal opportunities to fully enjoy all the
benefits of modern American society. It made specific statutory findings
that are relevant here:

> ∙ \"individuals with disabilities continually encounter various forms
> of discrimination, including . . . the discriminatory effects of
> architectural . . . barriers, overprotective rules and policies,
> failure to make modifications to existing facilities and practices, .
> . . segregation, and relegation to lesser services, programs,
> activities, benefits, jobs, or other opportunities,\" 42 U.S.C. §
> 12101(a)(5); and
>
> ∙ \"the Nation\'s proper goals regarding individuals with disabilities
> are to ensure equality of opportunity, full participation, independent
> living, and economic self-sufficiency for such individuals,\" 42
> U.S.C. § 12101(a)(8).

Plaintiffs have eloquently articulated this point in their Motion for
Partial Summary Judgment. Based on the statutory and regulatory
language, the ADA\'s legislative history, and case law, Plaintiffs
properly assert that Taco Bell\'s reluctance to change their way of
doing business violates title III\'s anti-segregation provisions,
including 42 U.S.C. § 12182(b)(1)(B) and 28 C.F.R. § 36.203 (people with
disabilities must be served in the most integrated setting appropriate
to their needs); 42 U.S.C. § 12182(b)(1)(A)(iii) and 28 C.F.R. §
36.202(c) (different or separate goods or services are discriminatory
unless necessary to provide a person with a disability a good, service,
or other opportunity that is as effective as that provided to others);
and 42 U.S.C. 12182(b)(1)(C) and 28 C.F.R. § 36.203(b) (persons with
disabilities may not be denied the opportunity to participate in
non-segregated programs or activities). [See]{.underline} Plaintiffs\'
Memorandum In Support of Motion for Partial Summary Judgment at 13-15.

Plaintiffs also correctly argue that Taco Bell\'s \"alternative\" method
of serving people with disabilities --- having them bypass the customer
service queue --- subjects them to unequal service in violation of 42
U.S.C. § 12182(b)(1)(A)(i); 28 C.F.R. § 36.202)(b). It deprives them of
the \"stress-free\" environment Taco Bell asserts is the very reason for
maintaining the customer

service queues. Plaintiffs\' Memorandum In Support of Motion for Partial
Summary Judgment at 15-17.

/ / / / /

/ / / / /

/ / / / /

**[CONCLUSION]{.underline}**

The United States respectfully urges the Court to deny Taco Bell\'s
Motion for Summary Judgment.

Dated: Washington, D.C.

January 27, 1999

Respectfully submitted,

LINDA McMAHAN BILL LANN LEE

United States Attorney Acting Assistant Attorney General

for the District of Colorado for Civil Rights

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

STEPHEN TAYLOR, JOHN WODATCH, Chief

Civil Chief RENEE M. WOHLENHAUS, Deputy Chief

United States Attorney\'s Office PHILIP L. BREEN, Special Legal Counsel

1961 Stout Street, Suite 1200 MARY LOU MOBLEY, Trial Attorney

Denver, CO 80294 Disability Rights Section

\(303\) 844-2081 Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, DC 20035-6738

\(202\) 307-0663

[^1]: ^[?]{.underline}/^Named Plaintiffs have sought class certification
    for others who use wheelchairs or electric scooters for mobility and
    who, during the two years prior to the filing of this suit, were
    discriminated against on the basis of disability by Taco Bell
    restaurants in Colorado.

[^2]: ^[?]{.underline}/^In footnote 1 of its Memorandum in Support of
    its Motion for Summary Judgment, Taco Bell summarily seeks dismissal
    of any claims by Plaintiffs with respect to franchised Taco Bell
    facilities without providing a discussion of its franchise
    agreements or other essential information to determine the extent of
    Taco Bell\'s liability. Briefs on the issue of franchisor liability
    have not yet been filed in this case. It is impossible to determine
    whether Taco Bell is liable for ADA violations at franchised
    locations without facts showing whether Taco Bell had responsibility
    for \"design and construction\" of Taco Bell restaurants built for
    first occupancy after January 26, 1993, or, in the case of older
    facilities, whether they had control over the facilities sufficient
    to accomplish barrier removal. [See]{.underline} [United States v.
    Days Inns of Am.]{.underline}, 151 F.3d 822, 824-25 (8th Cir. 1998);
    [United States v. Days Inns of Am., Inc.]{.underline}, 997 F. Supp.
    1080 (C.D. Ill. 1998); [cf.]{.underline} [Neff v. American Dairy
    Queen Corp.]{.underline}, 58 F.3d 1063 (5th Cir. 1995), [cert.
    denied]{.underline}, 516 U.S. 1045 (1996). Should the Court consider
    arguments on this issue, the United States respectfully requests the
    opportunity to fully brief it after reviewing the merits of the
    arguments in the context of specific facts in this case.

[^3]: ^[?]{.underline}/^The Department will not address Taco Bell\'s
    final argument --- that Plaintiffs\' claims under the Colorado
    Anti-Discrimination Act are barred for failure to exhaust
    administrative remedies.

[^4]: ^[?]{.underline}/^ [Daigle]{.underline} and [Bechtel]{.underline}
    have no real precedential value. Although [Daigle]{.underline} held
    that plaintiffs must provide written notice to the appropriate State
    authorities as a prerequisite to bringing an action under title III
    of the ADA, the same judge rejected this very holding only eight
    months later. In [Doukas v. Metropolitan Life Ins. Co]{.underline}.,
    No. CV-4-478-SD, 1997 WL 833134 (D.N.H. Oct. 21, 1997) (attached
    hereto at Exhibit 1), the same judge held that \"written notice to
    state authorities is not a requirement under title III of the ADA,\"
    expressly overruling his earlier opinion in [Daigle]{.underline} and
    stating that \"upon further consideration, the court finds that
    limiting the scope of reference to 2000a-3 to paragraph (a) is a
    better interpretation of the statute.\" [Id.]{.underline} at \*2 and
    n.2.

    [Bechtel]{.underline} is an unpublished decision under title II of
    the ADA, which only in [dicta]{.underline} mentioned that title III
    adopted the administrative exhaustion requirements of the 1964 Civil
    Rights Act. In [Colorado Cross Disability Coalition v. Hermanson
    Family Ltd. Partnership I]{.underline}, the Federal District Court
    for the District of Colorado explicitly rejected
    [Bechtel]{.underline} as having no precedential value. Slip op. at
    8-9 (D. Colo. Civil No. 96-WY-2492-AJ, Mar. 3, 1997).

[^5]: ^[?]{.underline}/^In [Howard II]{.underline}, which postdates
    [Hermanson]{.underline}, the Court reiterated in dicta its earlier
    understanding that title III requires pre-suit notice to the State.

[^6]: ^[?]{.underline}/^ Section 204 provides in its entirety:

    > \(a\) **Persons aggrieved; intervention by Attorney General; legal
    > representation; commencement of action without payment of fees,
    > costs, or security**. Whenever any person has engaged or there are
    > reasonable grounds to believe that any person is about to engage
    > in any act or practice prohibited by section 2000a-2 of this
    > title, a civil action for preventive relief, including an
    > application for a permanent or temporary injunction, restraining
    > order, or other order, may be instituted by the person aggrieved
    > and, upon timely application, the court may, in its discretion,
    > permit the Attorney General to intervene in such civil action if
    > he certifies that the case is of general public importance. Upon
    > application by the complainant and in such circumstances as the
    > court may deem just, the court may appoint an attorney for such
    > complainant and may authorize the commencement of the civil action
    > without the payment of fees, costs, or security.
    >
    > \(b\) **Attorney\'s fees; liability of United States for costs**.
    > In any action commenced pursuant to this subchapter, the court, in
    > its discretion, may allow the prevailing party, other than the
    > United States, a reasonable attorney\'s fee as part of the costs,
    > and the United States shall be liable for costs the same as a
    > private person.
    >
    > \(c\) **State or local enforcement proceedings; notification of
    > State or local authority; stay of Federal proceedings**. In the
    > case of an alleged act or practice prohibited by this subchapter
    > which occurs in a State, or political subdivision of a State,
    > which has a State or local law prohibiting such act or practice
    > and establishing or authorizing a State or local authority to
    > grant or seek relief from such practice or to institute criminal
    > proceedings with respect thereto upon receiving notice thereof, no
    > civil action may be brought under subsection (a) of this section
    > before the expiration of thirty days after written notice of such
    > alleged act or practice has been given to the appropriate State or
    > local authority by registered mail or in person, provided that the
    > court may stay proceedings in such civil action pending the
    > termination of State or local enforcement proceedings.
    > (cont.d....)
    >
    > (...cont'd.)
    >
    > \(d\) **References to Community Relations Service to obtain
    > voluntary compliance; duration of reference; extension of
    > period**. In the case of an alleged act or practice prohibited by
    > this subchapter which occurs in a State, or political subdivision
    > of a State, which has no State or local law prohibiting such act
    > or practice, a civil action may be brought under subsection (a) of
    > this section: Provided, That the court may refer the matter to the
    > Community Relations Service established by subchapter VIII of this
    > chapter
    >
    > for as long as the court believes there is a reasonable
    > possibility of obtaining voluntary compliance, but for not more
    > than sixty days: Provided further, That upon expiration of such
    > sixty-day period, the court may extend such period for an
    > additional period, not to exceed a cumulative total of one hundred
    > and twenty days, if it believes there then exists a reasonable
    > possibility of securing voluntary compliance.

    42 U.S.C. § 2000a-3.

[^7]: ^[?]{.underline}/^ [See]{.underline} discussion at 6-8, above.

[^8]: ^[?]{.underline}/^42 U.S.C. § 12206(c).

[^9]: ^[?]{.underline}/^The Standards are adopted by the Department of
    Justice relying upon minimum guidelines as adopted by a separate
    Federal agency, the Architectural and Transportation Barriers
    Compliance Board (\"Access Board\"). 42 U.S.C. § 12204. The Access
    Board\'s ADAAG --- or the ADA Accessibility Guidelines --- are
    minimum accessibility specifications that do not carry the weight of
    law unless and until they are adopted as the Standards by the
    Department of Justice through the regulatory process. Once adopted
    by the Department of Justice, whether in their original state or
    modified, they are fully enforceable as an integral part of the
    Department\'s title III regulation. The Department of Justice ---
    not the Access Board nor any of its Advisory Committees --- has the
    authority to interpret the title III regulation. [Paralyzed Veterans
    Association v. Ellerbe Becket Architects & Engineers]{.underline},
    950 F. Supp. 389, 392 (D.D.C. 1996).

[^10]: ^[?]{.underline}/^In its Memorandum In Support of the Motion for
    Summary Judgment at 11, Taco Bell puts undue emphasis on the fact
    that in its 1996 report, the ADAAG Review Federal Advisory Committee
    of the U.S. Architectural and Transportation Barriers Compliance
    Board (\"Access Board\") proposes adding a section to ADAAG to
    specifically require queue and waiting lines serving accessible
    counters or check-out aisles to comply with the accessible route
    provisions. [See]{.underline} \"Recommendations for a New ADAAG,\"
    para. 227.5, September 1996 (attached as Exhibit 10 to Taco Bell\'s
    Motion for Summary Judgment). Taco Bell infers from this
    recommendation that queues are not covered under the current
    definition of accessible route. In fact, however, this
    recommendation is merely a clarification of the current ADAAG
    language.

    Section 504 of the ADA, 42 U.S.C. § 12204, gives the Access Board
    responsibility to develop the ADAAG. No recommendations by the
    Access Board\'s ADAAG Review Federal Advisory Committee are adopted
    \-- even as part of the Access Board\'s guidelines --- until voted
    on by the full Access Board (of which the Department of Justice is
    one of 25 members). After such a vote, they will go through the full
    regulatory process, including a notice of proposed rulemaking and a
    published final rule, before being considered by the Department.
    Then they will go through another round of regulatory processes
    before being incorporated into the Department of Justice\'s
    regulation. Public comment and extensive analysis are integral to
    the process, both before the Access Board and the Department.
    Recommendations made by an advisory committee to the Access Board do
    not reflect or predict the Department\'s interpretation of the law.

[^11]: ^[?]{.underline}/^One example of appropriate \"equivalent
    facilitation\" is for child care centers to build accessible toilet
    rooms to children\'s dimensions: strict compliance with the
    Standards would result in the installation of \"accessible\" toilets
    that were too high to permit children with disabilities to transfer
    onto the toilet without assistance. Scaling down the size, while
    ensuring accessibility with appropriate grab bars, adequate
    maneuvering space, etc., will better effectuate the Standards\'
    underlying purpose of ensuring that the facilities are readily
    accessible to and usable by persons with disabilities.

[^12]: ^[?]{.underline}/^Other quick service restaurants that
    traditionally rely on customer service queues have agreed to
    reconfigure their queues in newly constructed and existing
    facilities to make them accessible to persons with disabilities, or
    to remove the queues altogether. [See]{.underline} Settlement
    Agreement Regarding Access for Individuals with Disabilities To
    Wendy\'s Restaurants, entered into by the United States, Wendy\'s
    International, Inc., and the States of Arizona, California, Florida,
    Illinois, Kansas, Massachusetts, Minnesota, Pennsylvania, and West
    Virginia, attached hereto at Exhibit 2.