**UNITED STATES DISTRICT COURT**

**FOR THE CENTRAL DISTRICT OF ILLINOIS**

**DANVILLE/URBANA DIVISION**

**UNITED STATES OF AMERICA, )**

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

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

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

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

**)**

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

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

**PLAINTIFF UNITED STATES\' REPLY MEMORANDUM**

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

**(ORAL ARGUMENT REQUESTED)**

> ISABELLE KATZ PINZLER
>
> Acting Assistant Attorney General

# Civil Rights Division

> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS,
>
> Acting Deputy Chief
>
> ROBERTA S. KIRKENDALL
>
> JEANINE M. WORDEN
>
> MARGARITA M. PRIETO
>
> THOMAS M. CONTOIS
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-0986

Dated: December 2, 1997

**TABLE OF CONTENTS**

[Page]{.underline}

Introduction 1

Argument 2

## A. The Ruling in the South Dakota Action Has No Relevance to this Case 2

B. DIA's Construction of § 303 Is Inconsistent with the Statute\
and Legislative History. 4

### C. The United States' Construction of § 303 Is Entitled to Deference. 6

D. The Undisputed Facts Prove that DIA and HFS Have Violated § 303. 9

E. The United States\' Reading of § 303 Does Not Make the Statute Void\
for Vagueness. 12

Conclusion 15

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

[Auer v. Robins]{.underline}, 117 S.Ct. 905 (1997) 7-8

[Baltimore Neighborhoods, Inc. v. Continental Landmark,
Inc.]{.underline}, Civ. No. AMD 96-916\
(D. Md. Oct. 29, 1997) 4-5

[Craik v. Minnesota State Univ. Bd.]{.underline}, 731 F.2d 465 (8th Cir.
1984) 10

[Fogie v. Thorn Americas, Inc.]{.underline}, 95 F.3d 645 (8th Cir. 1996)
13

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

[International Bhd. Teamsters v. United States]{.underline}, 431 U.S.
324 (1977) 10

[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 1175
(S.D. Fl. 1997) 3, 5, 7

[Johnson v. Hale]{.underline}, 13 F.3d 1351 (9th Cir. 1994) 11

[Moskal v. United States]{.underline}, 498 U.S. 103 (1990) 5

[Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers,
P.C.]{.underline}, 945 F. Supp. 1 (D.D.C. 1996) 8

[Paralyzed Veterans of America v. D.C. Arena L.P.]{.underline}, 117 F.3d
579 (D.C. Cir. 1997) . 14

[Pinnock v. Int'l House of Pancakes Franchisee]{.underline}, 844 F.
Supp. 574 (S.D. Cal. 1993) 13-14

[Smiley v. Citibank (South Dakota), N.A.]{.underline}, 116 S. Ct. 1730
(1996) 7

[United States v. Balistrieri]{.underline}, 981 F.2d 916 (7th Cir. 1992)
10

[United States v. Days Inns of America, Inc.]{.underline} Civ. 96-5012
(D.S.D. Oct. 29, 1997) 2-3, 6

[United States v. DiMucci]{.underline}, 879 F.2d 1488 (7th Cir. 1989) 10

[United States v. Ellerbe Becket]{.underline}, 1997 WL 610275 (D. Minn.
Oct. 2, 1997) 3, 5, 7

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

[United States v. Real Estate Devel. Corp.]{.underline}, 347 F. Supp.
776 (N.D. Miss. 1972) 11

[United States v. West Peachtree Tenth Corp.]{.underline}, 437 F.2d 221
(5th Cir. 1971) 11

[Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc.]{.underline}, 455 U.S. 489 (1982) 13

**LEGISLATIVE HISTORY**

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. (1990) 5

**INTRODUCTION**

DIA[^1] does not dispute that it participated in, and exercised
extensive control over, the design and construction of the Champaign
Days Inn. DIA also does not dispute that the Champaign Days Inn is
inaccessible to persons with disabilities. Instead, DIA argues that,
even though it participated in and controlled the design and
construction of the Champaign Days Inn, it should nonetheless escape
liability because franchisors cannot be held liable for violating §303
of the ADA or because § 303 of the ADA is void for vagueness.

DIA's arguments are fatally flawed. DIA cannot point to any statutory
language or legislative history that in any way suggests Congress
intended to exempt franchisors from liability under § 303 while placing
liability solely on the small businesses that own individual franchises.
Likewise, contrary to DIA's arguments, § 303 is not void for vagueness,
since it gives DIA and other parties that participate in the design and
construction of inaccessible buildings ample notice that the design and
construct public accommodations and commercial facilities that are not
accessible to persons with disabilities violates the law.

Unable to point to any evidence that Congress intended to protect
franchisors from ADA liability, DIA urges the Court to adopt a strained
interpretation of the ADA that has already been rejected by two courts.
The Court should reject DIA's invitation to insulate it from liability
because, as two courts have already recognized, DIA's construction of
the ADA is inconsistent with the ADA's language, structure, purpose, and
legislative history. Second, the Department of

Justice's interpretation of § 303 is entitled to substantial deference.
Finally, the facts show beyond dispute that DIA participated in, and
exercised extensive control over, the design and construction of the
Champaign Days Inn and other inaccessible Days Inns or, alternatively,
that DIA operates the Champaign Days Inn.

**ARGUMENT**

**A. The Ruling in the South Dakota Action Has No Relevance to this
Case.**

DIA's Opposition relies heavily on a ruling issued in the United
States\' action against DIA in the U.S. District Court for the District
of South Dakota, Western Division. In that October 29, 1997 ruling, the
district judge granted DIA\'s motion for summary judgment, holding on
the narrowest possible grounds, that the facts in that specific case did
not show that DIA designed, constructed, or operated the Days Inn in
Wall, South Dakota (\"Wall Days Inn\"). That ruling, explicitly limited
to the facts related to the design and construction of the Wall Days
Inn, is not determinative in this case, involving the design,
construction, and operation of the Champaign Days Inn, for two
fundamental reasons.

First and foremost, the Court's decision in the South Dakota case was
undeniably limited to the facts of that case --- it did not interpret §
303 of the ADA and did not foreclose franchisor liability for ADA
violations. In addition, the facts in this case differ greatly from the
facts in the South Dakota case, with DIA having significantly more
involvement in the design, construction, and operation of the Champaign
Days Inn than it had in the Wall Days Inn. For example, unlike the South
Dakota case, the evidence here shows that DIA reviewed the final
blueprints for the Champaign Days Inn, DIA made changes to those
blueprints including a change relating to an accessibility feature, and
the architect incorporated some of those changes into the final design

and construction of the Champaign Days Inn.

Second, the South Dakota decision is fatally flawed because it purports
to apply § 303 of the ADA to the facts at issue in that case without
providing any conclusions or guidance as to the conduct that § 303
prohibits or the proper interpretation of § 303.

Third, the South Dakota decision is internally inconsistent. It declines
to revisit the interpretation of § 303 reached in [United States v.
Ellerbe Becket]{.underline}, 1997 WL 610275 (D. Minn. Oct. 2, 1997) and
[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. 1175
(S.D. Fl. 1997), which adopt the Department of Justice\'s construction
of the statute, implicitly recognizing that these rulings are correct,
while concluding as a matter of law that DIA did not design and
construct the Wall Days Inn. Yet, the Department\'s position in
[Ellerbe]{.underline} and [Johanson]{.underline} was the same as that
advanced in the South Dakota case and in this Court ---
[i.e.]{.underline}, that involvement in the design and construction of
inaccessible facilities is sufficient to trigger potential liability
under\
§ 303. But, without stating any legal rationale for its decision, the
South Dakota court declined to accept the Department\'s interpretation
of the terms "design" and "construct" --- even though the Department is
the agency entrusted by Congress with the interpretation of these terms.

Finally, the South Dakota court plainly misunderstood the government\'s
position on the interpretation of § 303. The opinion notes that both
parties agree that § 303 incorporates the language from § 302 which
limits liability to owners, operators, lessors, and lessees. Slip op. at
7 n.7. But, as the briefs in this case and the South Dakota case plainly
show, the United States has consistently taken the opposite position ---
that the limiting language of § 302 is [not]{.underline} incorporated
into § 303.

###  Thus, the opinion of the South Dakota court is simply not persuasive on the issues before 

this Court. The United States, therefore, submits that the ruling of the
South Dakota court should not control or direct the Court here.[^2]

B.  **DIA's Construction of § 303 Is Inconsistent with the Statute and
    Legislative History.**

DIA urges the Court to limit liability under § 303, which expressly
applies to public accommodations [and commercial
facilities]{.underline}, to the parties named in § 302, which is limited
to persons who own, lease (lease to), or operate public accommodations.
DIA's interpretation of\
§ 303 of the ADA­ effectively eliminates § 303\'s application to
commercial facilities, although Congress expressly included commercial
facilities within the scope of § 303. DIA Opp. Mem. at 13-16. DIA
insists that the government\'s reading of § 303 makes no sense, and that
the plain language of the statute and the legislative history support
its arguments. [Id.]{.underline} at 10-18. But DIA chooses to ignore the
fact that Congress used identical "failure to design and construct"
language in the Fair Housing Act, and its legislative history amply
demonstrates that Congress did not intend to limit liability under its
new construction provisions. [See]{.underline} U.S. Opp. Mem. at 6-8.
Moreover, in a recent federal court ruling that considered strikingly
similar arguments about proper liable parties under § 3604 of the Fair
Housing Act, [Baltimore Neighborhoods, Inc. v. Continental Landmark,
Inc.]{.underline}, Civ. No. AMD 96-916 (D. Md. Oct. 29, 1997) (attached
as Exhibit A), the court determined that Congress indeed intended a
broad reach for "failure to design and construct." [Id.]{.underline} at
7-10. The Court opined,

> Case law and the pertinent regulations suggest that the FHA is
> [directed to a broad group of persons who have the potential of
> frustrating Congress' intent to expand housing opportunities for
> disabled persons]{.underline} and creating equal housing opportunities
> and diverse communities. Accordingly, I am constrained to conclude
> that \[a party\] is a proper defendant \[if\] it was in a position to
> affect in a significant way the implementation of the accessibility
> requirements set forth in the FHA and the regulations promulgated
> thereunder.

[Id.]{.underline} at 9 (emphasis added).

Furthermore, DIA baldly asserts that other federal courts that have
considered [the very question of law at issue in this case]{.underline}
--- whether § 303 incorporates the limiting language of\
§ 302 --- provide this Court with little guidance. DIA Opp. Mem. at 3-5.
But DIA offers no rationale for the Court to ignore these well-reasoned
opinions. In the [Ellerbe Becket]{.underline} case, the court rejected
the argument that the "plain language" of title III requires liability
under § 303 to be limited to the parties who are named in § 302(a). The
court adopted the Department of Justice's construction of § 303:

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

1997 WL 610275 at \*5. Noting that another federal court had come to the
same conclusion, the [Ellerbe]{.underline} court concluded that although
the architect did not own, lease (lease to), or operate any of\
the facili­ties in question, it could nonetheless be held liable under §
303. [Id]{.underline}. at \*4-5, 7. [See]{.underline} [also]{.underline}
[Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F. Supp. at 1178
(same). In sum, both the [Ellerbe]{.underline} and
[Johanson]{.underline} courts have concluded that the government\'s
position is firmly grounded in the language, structure, purpose, and
legislative history of §§ 302 and 303, squarely rejecting the same
arguments that DIA makes to this Court. The United States respectfully
requests this Court to do the same.[^3]

C. **The United States' Construction of § 303 Is Entitled to
Deference.**

DIA argues at length that the Department's construction of § 303 is
entitled to no deference because DIA's interpretation of § 303 allegedly
relies on the plain language of the statute, because the Court should
not defer to the Department of Justice's technical expertise, and\
because the Department's interpretation of § 303 is allegedly
unreasonable and nothing more than a litigating position. These
arguments equally lack merit.

Contrary to DIA's assertions, DIA's interpretation of § 303 does
[not]{.underline} rely on the plain language of the ADA. DIA asks the
Court not only to incorporate the limiting language from\
§ 302(a) [but also to amend it so that it applies to persons who own,
lease (lease to), or operate commercial facilities in addition to the
parties actually named in § 302(a)]{.underline}. Clearly, DIA's
construction of § 303, which incorporates language from § 302(a) that
the Court must somehow amend to suit DIA\'s purposes, is not based upon
plain language logic.

Recognizing that its own argument implicitly admits that § 303 is
ambiguous, DIA argues that the Court should not defer to the
Department's expertise in interpreting the statute it administers
because the ADA's language is not technical in nature. But the Supreme
Court has

not limited deference to agency interpretations involving technical
matters. As the Supreme Court recently explained, courts must defer to
agency interpretations of statutes they administer not because of an
agency\'s expertise on technical matters but "because of a presumption
that Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows." [Smiley v. Citibank (South Dakota),
N.A.]{.underline}, 116 S. Ct. 1730, 1733 (1996). [Accord]{.underline}
[Auer v. Robins]{.underline}, 117 S.Ct. 905, 909 (1997) (holding that
courts must defer to an agency's permissible construction of a statute
it administers where Congress has not directly spoken on the question at
issue). Since DIA implicitly admits by virtue of its convoluted
statutory construction argument that § 303\'s reference to § 302(a) is
ambiguous, deference to the Department's interpretation of § 303 is
plainly warranted in this case.

DIA argues that the Department\'s construction of § 303 is not entitled
to deference because it is unreasonable. But DIA\'s assertion of
unreasonableness is plainly meritless, since two courts have already
ruled that the Department's interpretation of § 303 is not only a
reasonable one but, in fact, the correct one. [Johanson]{.underline},
963 F. Supp. at 1175; [Ellerbe]{.underline}, 1997 WL 610275 at \*7 n.4
(holding that although the government's interpretation of § 303 is
plainly supported by traditional methods of statutory construction,
Department's interpretation of statute is a reasonable one that would be
entitled to deference). Even the court in South Dakota refused to accept
DIA's strained statutory construction argument, holding instead that the
franchisor did not do enough in that case, as a factual matter, to be
responsible for ADA violations at the Wall Days Inn.

Desperate to convince the Court not to defer to the Department\'s
reasonable construction of § 303, DIA argues that the Department\'s
construction of the statute is nothing more than a litigating position
adopted for the purposes of this lawsuit. DIA's argument fails for two
reasons. First, the Department's interpretation of § 303 is not a mere
litigating position adopted for this case. The Department first advanced
its construction of § 303 in its Technical Assistance Manual which was
published in November 1993 \-- years before this lawsuit was filed. U.S.
Department of Justice, Civil Rights Division, Public Access Section,
[The Americans with Disabilities Act Title III Technical Assistance
Manual, Covering Public Accommodations and Commercial
Facilities]{.underline} (\"Technical Assistance Manual\") § III-5.1000
at 45-46 (November 1993), Exh. 45. Moreover, the Department has
consistently applied its construction of § 303 in other cases ---
[i.e.]{.underline}, in amicus briefs filed in [Johanson]{.underline} and
[Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers,
P.C.]{.underline}, 945 F. Supp. 1 (D.D.C. 1996) and in opposing a motion
to dismiss in [Ellerbe]{.underline}. But, even if the Department's
construction of § 303 had been a mere litigating position, it would
still be entitled to deference. [Auer v. Robbins]{.underline}, 117 S.
Ct. at 911 (holding that an agency interpretation first advanced in a
legal brief is nonetheless entitled to deference so long as it
"reflect\[s\] the agency's fair and considered judgment on the matter in
question" and is not a post hoc rationalization "advanced by an agency
seeking to defend past agency action against attack"). Since the
Department first advanced its interpretation of § 303 long before it
filed suit against DIA, there is no reason whatsoever to suspect that
the Department's construction of § 303 does not reflect "its fair and
considered judgment" or that it is in any way a "post hoc
rationalization" of past actions. Thus, if the Court finds § 303 to be
ambiguous, as DIA suggests, deference to the Department's construction
of § 303 is plainly warranted.

**D. The Undisputed Facts Prove that DIA and HFS Have Violated § 303.**

Although DIA makes numerous legal arguments about the facts on which the
government\
relies for summary judgment purposes, DIA does not dispute the facts
establishing its participation in, and extensive control over, the
design and construction of the Champaign Days\
Inn. DIA does not dispute that an HFS Design & Construction Manager
reviewed and approved specifications for the Champaign facility, and
specifically requested building plans. DIA does not dispute that an HFS
Design & Construction Manager reviewed and approved the blueprints used
to construct the Champaign Days Inn, indicating changes for compliance
with DIA\'s design standards that are contained in the Days Inn Planning
and Design Standards Manual (\"PDSM\") (and indicating one change to
improve the accessibility of the parking area), or that the changes were
incorporated into the final design and construction of the Champaign
Days Inn. Further, DIA does not dispute that it went so far as to send a
camera to Mr. Panchal for photographs to monitor the construction at the
Champaign Days Inn, and that an HFS employee toured and inspected the
facility after it was constructed but before it was opened for business
as a Days Inn, and that HFS Quality Assurance inspectors have routinely
toured and inspected the facility at least three times each year since
it opened for business.

DIA also does not dispute the basic facts that the government relies on
to prove that DIA operates the Champaign Days Inn \--
[i.e.]{.underline}, that DIA establishes extensive system standards for
the operation of Days Inn hotels, that DIA\'s license agreement with
Panchal & Patel, Inc. (\"P & P\") requires the Champaign Days Inn to be
operated in accordance with those system standards, that the Champaign
Days Inn is operated according to DIA\'s system standards, that HFS
Quality

Assurance inspectors conduct unannounced inspections of the Champaign
Days Inn at least three times a year to ensure that the facility is, in
fact, operated according to DIA\'s system standards, and that P & P has
changed the manner in which it operates the Champaign Days Inn in
response to directives from DIA\'s Quality Assurance inspectors.

DIA also attempts to divert this Court's attention from the fact that
the United States has proved that DIA has engaged in a [pattern or
practice of discrimination against individuals with
disabilities]{.underline} by repeatedly suggesting that evidence of
DIA's nationwide practices and procedures is not relevant here.
[See]{.underline} DIA's Response at ¶¶ 25-31, 36-38, 43, 88, 91. But the
evidence of DIA's nationwide practices and procedures regarding design
and construction and hotel operations is relevant. It shows that DIA has
committed a pattern or practice of discrimination---\
"more than the mere occurrence of isolated or 'accidental' or sporadic
discriminatory acts \... \[that\] discrimination \[is\] the company's
standard operating procedure\[,\] the regular rather than the unusual
practice." [International Bhd. Teamsters v. United States]{.underline},
431 U.S. 324, 336 (1977). Thus, by showing that DIA engaged in
nationwide practices and procedures, the United States has shown that
DIA engaged in a pattern or practice of discrimination nationwide.
[Id]{.underline}. at 360.[^4] *See also* [Craik v. Minnesota State Univ.
Bd.]{.underline}, 731 F.2d 465, 469-70 (8th Cir. 1984) (in addition to\
evidence relating to specific instances of discrimination, pattern or
practice case will typically

involve more general evidence relating to defendant's standard policies
or practices).[^5]

The undisputed facts establish that DIA\'s standard policy or practice
is to enter into license agreements that give it extensive control over
the design and construction of all new Days Inn hotels, and to involve
itself in various ways in the design and construction of individual
facilities ([e.g.]{.underline}, visiting sites; recommending architects
and contractors; assisting with construction financing; provid­ing design
services like conceptual site plans, architectural renderings, or
prototype drawings; reviewing plans for compli­ance with DIA\'s design
standards (as expressed in the PDSM) and requiring changes to those
plans; monitoring the progress of construction; and inspecting completed
facilities). *See* U.S. Mem. at 4-6. DIA\'s control over and
participation in the design and construction of the Champaign Days Inn
is entirely consistent with this pattern. *See* U.S. Mem. at 4-6. And
the undisputed facts show that numerous other new Days Inn hotels fail
to comply with the Standards, and that the violations at these hotels
are largely typical of violations found at the Champaign Days Inn hotel.
*See* U.S. Mem. at 4. Indeed, DIA has come forward with no evidence to
suggest that [any]{.underline} new Days Inn hotel complies with the
Standards. In sum, the United States has clearly established that DIA
has

engaged in a pattern or practice of illegal discrimination.[^6]

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

DIA contends that the Department\'s interpretation of § 303 renders the
statute so vague as\
to be unconstitutional. This argument is baseless.

DIA argues that the Department\'s interpretation of § 303 is
impermissibly vague because the United States' Fed. R. Civ. P. 30(b)(6)
designee testified that she could not answer certain hypothetical
questions posed by DIA\'s counsel about liability under § 303 without
knowing more\
facts. But a witness\' inability to apply a statute to a complex
hypothetical fact situation posed by counsel during a deposition is not
evidence that a statutory interpretation is impermissibly vague.[^7] As
the Supreme Court has explained, "we can never expect mathematical
certainty from our language": rather, "it will always be true that the
fertile legal imagination can conjure up hypothetical cases in which the
meaning of (disputed) terms will be in nice question." [Grayned v. City
of Rockford]{.underline}, 408 U.S. 104, 110, 110 n.15 (1972)
(parentheses in original; internal quotation marks and citation
omitted). *See also* [United States v. Powell]{.underline}, 423 U.S. 87,
93 (1975) (holding that a statute is not unconstitution­ally vague
because doubts may be conceived "as to the

applicability of the language in marginal fact situations"). Thus, there
is no merit to DIA\'s complaint that Ms. Savage frequently responded to
the hypothetical questions posed by DIA\'s counsel by indicating that
the answers would depend on the facts of the case. A statute is not void
for vagueness because its applica­tion requires a factual inquiry into a
party's specific conduct.

Indeed, case law makes clear that neither § 303 nor the United States\'
interpretation of it are impermissibly vague. Because title III of the
ADA is a civil statute regulating commercial conduct, it is subject to
scrutiny less strict than that applied to criminal statutes, or statutes
restricting free speech.[^8] Thus, § 303 (or the government\'s
interpretation of it) can only be held void for vagueness if "no
standard of conduct is specified at all." [Hoffman Estates]{.underline},
455 U.S. at 495 n.7 (1982). Further, in determining whether DIA has
proved that no standard of conduct is specified, the Court must consider
the words of the statute, and any limiting constructions proffered by
the agency charged with enforcing it. [Hoffman Estates]{.underline}, 455
U.S. at 495 n.5.

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

the design and construction of inaccessible facilities.[^9]28 C.F.R.
Part 36, Appendix B, § 36.401. In addition, the Department specifically
addressed the scope of § 303\'s coverage in its Technical Assistance
Manual for title III. The Manual poses a hypothetical situation in which
portions of a new facility are constructed inaccessibly, and warns that
not just the owner, but also the architect and contractor who designed
and constructed those portions of the facility may be held liable under
§ 303. Technical Assistance Manual § III-5.1000 at 45-46, Exh.
45.^1^[^10] In sum, there is simply no basis for DIA\'s claim that the
statute and the Department of Justice\'s interpretation of it fail to
provide adequate notice of either what conduct is prohibited, or who may
be held liable.

**CONCLUSION**

For the reasons stated above, and in the United States\' other
memoranda, the United States respectfully requests that the Court grant
its motion for summary judgment.

> Respectfully submitted,
>
> ISABELLE KATZ PINZLER
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS, Acting Deputy\
> Chief

#### Disability Rights Section

> Civil Rights Division
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> ROBERTA S. KIRKENDALL
>
> JEANINE M. WORDEN
>
> THOMAS M. CONTOIS
>
> MARGARITA M. PRIETO
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-0986

Dated: December 2, 1997

[^1]: 1 ^1^Since DIA has no employees and since all of DIA's functions
    are actually performed by HFS\' employees, DIA and HFS will be
    referred to collectively as DIA. For these same reasons, HFS'
    contention that it should escape liability is meritless. Since all
    of DIA's acts from which liability arises were actually performed by
    HFS' employees, the acts are plainly binding on HFS as well as DIA.

[^2]: 2 ^2^DIA has filed a motion asking the Court to give collateral
    estoppel effect to the South Dakota ruling in this case. But, as
    will be shown more fully in the United States' opposition to that
    motion, collateral estoppel cannot apply, since, among other
    reasons, the ruling does not address identical issues and since the
    ruling is not a final, nonappealable order.

[^3]: 3 ^3^Even the court in [United States v. Days Inns of America,
    Inc.]{.underline}, Civ. 96-5012 (D.S.D. Oct. 29, 1997) found that §
    303 must be read to include parties who design and construct new
    buildings other than persons who own, lease (lease to), or operate
    public accommodations and commercial facilities. Slip. op. at 8-10.

[^4]: 4 ^4^Because various civil rights statutes all employ the same
    "pattern or practice" language, the courts have held that the same
    standard of proof applies under each of the statutes. *See, e.g.*,
    [United States v. DiMucci]{.underline}, 879 F.2d 1488, 1497 n. 11
    (7th Cir. 1989)(in Fair Housing Act case court noted that phrase
    "pattern or practice" appears in several federal civil rights
    statutes, and is interpreted consistently from statute to statute,
    citing [Teamsters]{.underline}, 431 U.S. at 336 n. 16); [United
    States v. Balistrieri]{.underline}, 981 F.2d 916, 929 n.2 (7th Cir.
    1992) (same).

[^5]: 5 ^5^[See]{.underline} [also]{.underline} [Johnson v.
    Hale]{.underline}, 13 F.3d 1351, 1354 (9th Cir. 1994) (holding that
    a single example can be shown to be typical of the defendant\'s
    conduct, it suffices to establish the pattern or practice of
    discrimination); [United States v. West Peachtree Tenth
    Corp.]{.underline}, 437 F.2d 221, 227 (5th Cir. 1971) (holding that
    the number of individual acts of discrimination is not
    determinative, and that no mathematical formula is workable; rather,
    "\[e\]ach case must turn on its own facts"); [United States v. Real
    Estate Devel. Corp.]{.underline}, 347 F. Supp. 776, 783 (N.D. Miss.
    1972) ("No minimum number of incidents is required . . . .")

[^6]: 6 ^6^Similarly, assuming for the sake of argument that DIA\'s
    reading of the statute were correct ---that only those who own,
    lease, or operate the facility are responsible for its design and
    construction --- the undisputed facts also show that DIA\'s control
    over the operations of the Champaign Days Inn is typical of its
    control over the operations of all of the hotels in its system.
    *See* U.S. Mem. at 20-23.

[^7]: 7 ^7^DIA filed a motion to compel the United States' Fed. R. Civ.
    P. 30(b)(6) designee to answer these hypothetical questions with the
    U.S. District Court for the Eastern District of California. That
    court ruled that it was unfair for DIA's counsel to pose such
    hypothetical questions in a deposition and to expect the witness to
    provide an on-the-spot answer that was binding on the United States.
    [See]{.underline} November 7, 1997 Order denying DIA's motion to
    compel, which is attached hereto as Exh. B. Plainly the answers to
    these improper questions are not evidence of vagueness\
    but merely evidence that DIA was seeking to take unfair advantage of
    the United States' Fed. R. Civ. P. 30(b)(6) designee by posing
    hypothetical questions that a Fed. R. Civ. P. 30(b)(6)\
    witness is not required to answer.

[^8]: 8 ^8^[Village of Hoffman Estates v. Flipside, Hoffman Estates,
    Inc.]{.underline}, 455 U.S. 489, 498 (1982); [Fogie v. Thorn
    Americas, Inc.]{.underline}, 95 F.3d 645, 650 (8th Cir. 1996);
    [Pinnock v. Int'l House of Pancakes Franchisee]{.underline}, 844 F.
    Supp. 574, 580 (S.D. Cal. 1993).

[^9]: 9 ^9^In explaining its interpretation of § 303, the Department of
    Justice stated:

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

[^10]: 0 ^10^The Technical Assistance Manual is issued by the Department
    pursuant to statutory mandate, *see* 42 U.S.C. § 12206(a), (c), and
    is thus, along with the issuance of the title III implementing
    regulation, one of the mechanisms by which the Attorney General is
    to "flesh out the statutory framework" of title III. [Paralyzed
    Veterans of America v. D.C. Arena L.P.]{.underline}, 117 F.3d 579,
    585 (D.C. Cir. 1997). Indeed, the [Pinnock]{.underline} court relied
    in part on the Department\'s Technical Assistance Manual for title
    III to hold that the statute was not void for vagueness.
    [Pinnock]{.underline}, 844 F. Supp. at 581. In
    [Pinnock]{.underline}, a defendant charged with violating section
    302 of the ADA challenged title III of the statute as being
    unconstitutionally vague. The court rejected this challenge,
    concluding that "the terms of title III are marked by well-reasoned
    flexibility and breadth," and that "\[w\]hen considered in
    conjunction with the Department of Justice guidelines, these terms
    are not unconstitutionally vague." [Id]{.underline}.