UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

UNITED STATES OF AMERICA, )

)

> Plaintiff, )

)

v\. )

> ) Civil Action No.: 96-26

DAYS INNS OF AMERICA, INC., [et]{.underline} [al]{.underline}., )

> )
>
> Defendants. )

)

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

**MOTION FOR SUMMARY JUDGMENT**

**(ORAL ARGUMENT REQUESTED)**

> Isabelle Katz Pinzler
>
> Acting Assistant Attorney General
>
> John L. Wodatch, Chief
>
> Renee M. Wohlenhaus
>
> Acting Deputy Chief
>
> Jeanine M. Worden
>
> Roberta Stinar Kirkendall
>
> Thomas M. Contois
>
> Margarita M. Prieto
>
> Attorneys
>
> U.S. Department of Justice
>
> Civil Rights Division
>
> Disability Rights Section
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-6556

Dated: November 13, 1997

**TABLE OF CONTENTS**

[Page]{.underline}

Introduction 1

Argument 2

A. DIA's Construction of § 303 Is Inconsistent with the Statute

and Legislative History 2

B. The United States' Construction of § 303 Is Entitled to Deference. 3

C. The Undisputed Facts Prove that DIA and HFS Have Violated § 303 6

1\. DIA Does Not Dispute the Facts Supporting the United States\' Claims
7

2\. DIA Has Repeatedly Misrepresented the Record 8

D. The United States\' Reading of § 303 Does Not Make the Statute Void

for Vagueness 10

E. The Ruling in the South Dakota Action Has No Relevance to this Case
13

Conclusion 15

# INTRODUCTION

DIA[^1] does not dispute that it participated in, and exercised
extensive control over, the design and construction of the Hazard Days
Inn. DIA also does not dispute that the Hazard 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 Hazard
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.
And, § 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 failure to design and construct public
accommodations and commercial facilities that are 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 resist DIA's urging 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; the Department of
Justice's interpretation of § 303 is entitled to substantial deference;
and the facts show beyond dispute that DIA participated in, and
exercised extensive control over, the design and construction of the
Hazard Days Inn and other inaccessible Days Inns or, alternatively, that
DIA operates the Hazard Days Inn.[^2]

# 

# ARGUMENT

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

In an attempt to avoid liability under § 303 for its undisputed role in
the design and construction of the Hazard Days Inn and other
inaccessible Days Inns, 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.
But DIA never explains why the Court should limit § 303\'s coverage to
parties who own, operate, or lease public accommoda­tions, effectively
eliminating\
§ 303\'s application to commercial facilities, when Congress expressly
included commercial facilities within the scope of § 303. DIA Mem. at
5-11. DIA simply insists that the government\'s reading of § 303 makes
no sense and leads to absurd results. [Id]{.underline}. But a second
federal court has now concluded that the government\'s reading of § 303
\-- not DIA's \-- is correct.

In [United States v. Ellerbe Becket, Inc.]{.underline}, Civil No.
4-96-995 (D. Minn. October 2, 1997) (copy of slip opinion at Exhibit A),
the United States sued an architectural firm for repeatedly designing
new facilities in violation of the ADA\'s architectural standards for
new construction. The architects moved to dismiss, arguing (as DIA does
here) 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
rejected that argument and 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.

Slip op. at 10-11. 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 6, 13.
[See]{.underline} [also]{.underline} [Johanson v. Huizenga Holdings,
Inc.]{.underline}, 963 F. Supp. 1175, 1178 (S.D. Fla. 1997) (same). In
sum, both the [Ellerbe]{.underline} and [Johanson]{.underline} courts
have concluded that the Department of Justice\'s position is firmly
grounded in the language, structure, purpose, and legislative history of
§§ 302 and 303 and have squarely rejected the same arguments that DIA
makes to this Court. The United States respectfully requests this Court
to do the same.[^3]

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

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

Contrary to DIA's assertions, DIA's interpretation of § 303 does
[not]{.underline} rely on the plain language of the statute. DIA argues
that, since § 303 contains a reference to § 302(a), liability under §
303 should be limited to persons who are named in § 302(a) \--
[i.e.]{.underline} persons "who own, lease (or lease to), or operate a
place of public accommodation." But, recognizing that a direct
incorporation of the limiting language of § 302(a) into § 303 would
impermissibly eliminate § 303\'s coverage of commercial facilities, 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}. Thus, DIA argues that §
303\'s reference to § 302(a) incorporates language other than the plain
language of § 302(a) that limits liability solely to "any person who
owns, leases (or leases to), or operates a place of public
accommodation." Clearly, DIA's construction of § 303, which incorporates
language from § 302(a) that the Court must somehow amend to suit DIA\'s
purposes, does not rely on the plain language of the statute, since DIA
recognizes that the Court cannot simply incorporate the limiting
language of § 302 as drafted by Congress.

Recognizing that its own argument implicitly admits that § 303 is
ambiguous, DIA argues that the Court should not defer to the Department
of Justice'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 complex 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}, slip op. at 11 n.4 (holding
that although the government's interpretation of § 303 is plainly
supported by traditional methods of statutory of construction,
Department's interpretation of statute is a reasonable one that would be
entitled to deference).[^4]

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) (relevant excerpt attached as
Exhibit B to this Memorandum). 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 nonetheless 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 the statute 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
implicitly suggests it is, deference to the Department's construction of
§ 303 is plainly warranted.

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

Although DIA has responded to many of the facts, DIA has not contested
those facts. Rather than coming forward with evidence to dispute the
facts stated by the government, DIA instead advances a variety of legal
arguments. DIA has thus failed to establish any genuine issue of
material fact that would preclude judgment as a matter of law.[^5]

**1. DIA Does Not Dispute the Facts Supporting the United States\'
Claims.**

Although DIA makes numerous legal arguments about the facts on which the
government relies in its motion for summary judgment, DIA does not
dispute the facts which establish that it participated in, and exercised
extensive control over, the design and construction of the Hazard Days
Inn. DIA does not dispute that an HFS employee identified the site for
the Hazard Days Inn, convinced the owner of the site to construct a Days
Inn on the property, and introduced the owner of the site to a
contractor who had prior experience in building, owning, and operating a
Days Inn. DIA also does not dispute that the Hazard Days Inn was built
using blueprints that had previously been used to construct other Days
Inn hotels, that DIA\'s licensee procured these blueprints from a DIA
broker, and that the architect retained by the owner made only a few
changes to the blueprints. In addition, DIA does not dispute that an HFS
Design and Construction Manager reviewed and approved the blueprints
used to construct the Hazard 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 a lavatory), or that the contractor
incorporated these changes into the final design and construction of the
Hazard Days Inn. Further, DIA does not dispute that an HFS employee
visited the construction site while the Hazard Days Inn was under
construction, that DIA has an interest in monitoring the construction of
the Hazard Days Inn to ensure that it was completed on schedule, that
another HFS employee toured and inspected the Hazard Days Inn 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 Hazard Days Inn 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 Hazard Days Inn \-- [i.e.]{.underline},
that DIA establishes extensive system standards for the operation of
Days Inn hotels, that DIA\'s license agreement with Hazard Management
Group, Inc. (\"HMG\") requires the Hazard Days Inn to be operated in
accordance with those system standards, that the Hazard Days Inn is
operated according to DIA\'s system standards, that HFS Quality
Assurance inspectors conduct unannounced inspections of the Hazard Days
Inn at least three times a year to ensure that the Hazard Days Inn is,
in fact, operated according to DIA\'s system standards, and that HMG has
changed the manner in which it operates the Hazard Days Inn in response
to directives from DIA\'s Quality Assurance inspectors.

Accordingly, DIA has failed to introduce evidence disputing the fact
that DIA participated in, and exercised extensive control over, the
design and construction of the Hazard Days Inn or, alternatively, that
DIA operates the Hazard Days Inn.

**2. DIA Has Repeatedly Misrepresented the Record.**

DIA frequently misrepresents the testimony of a witness or the record as
a whole in an attempt to defeat the United States' motion for summary
judgment. For example, DIA cites the testimony of two architects
formerly employed by HFS for the proposition that when its architects
review plans for new hotels, they make only "recommendations" or
"suggestions." But the record simply does not support DIA\'s claim. The
testimony of William Keeble, DIA\'s Rule 30(b)(6) designee, and Robert
Hoagland, the former head of HFS\' Design and Construction Department,
and the clear language of the Days Inn Uniform Franchise Offering
Circular, the standard Days Inn license agreement, and the PDSM itself,
all make clear that while some comments may have been only "suggestions"
or "recommendations," others were indeed "requirements." Keeble Dep.,
Exh.11, at 226-27, 229, 815, 819; Hoagland Dep., Exh. 10, at 73-74;
PDSM, Exh. , at 2, 7-8; UFOC, Exh. 1, at 21, 23-24. Not only does DIA
misrepresent the testimony, but the testimony cited by DIA is
insufficient to create a genuine issue of material fact. The witnesses
who offered testimony disputing earlier admissions by a former DIA
officer and DIA's Fed. R. Civ. P. 30(b)(6) designee were formerly
employed by HFS as architects; they did not have management
responsibilities. Keeble Dep., Ex. 11, at 149-50, 167-68. Thus, these
witnesses have no basis on which to contradict the testimony of their
former boss, Mr. Hoagland, or of Mr. Keeble, who DIA designated to
testify on its behalf, and whose testimony binds the company.
[See]{.underline}, [e.g.]{.underline}, [Bank of New York v. Meridien
BIAO Bank Tanzania Ltd.]{.underline}, 171 F.R.D. 135, 150 (S.D.N.Y.
1997); [Dravo Corp. v. Liberty Mutual Ins. Co.]{.underline}, 164 F.R.D.
70, 75 (D. Neb. 1995).

Similarly, DIA misrepresents the importance of the PDSM to this case.
DIA contends that the PDSM is not relevant to this case because the
architect and contractor in this case testified that they did not use
it. [But DIA intentionally overlooks the fact that an HFS Design and
Construction Manager reviewed the blueprints for the Hazard Days Inn for
the very purpose of ensuring that those blueprints complied with the DIA
design standards that are contained in the PDSM]{.underline}. Thus,
DIA\'s reliance on the testimony of the architect and contractor is
misplaced and does not diminish the evidentiary value of the PDSM in
this case.

Finally, DIA misrepresents the testimony of its own expert witness,
Harold Kiewel, with respect to the nature of the PDSM. DIA cites a
portion of his testimony for the proposition that the PDSM is not
comprehensive. What DIA does not say, however, is that Mr. Kiewel later
re-confirmed that the PDSM was in fact "fairly comprehensive," that it
included provisions for areas of the hotel that guests would never
see,[^6] and that it included provisions that had nothing to do with
defining DIA\'s position in the market. Kiewel Dep., Exh.15, at 163,
168-69, 176-79. Tischler Dep., Exh. 17, at 88 (describing the Days Inn
PDSM as the "most comprehensive" of all of the HFS hotel chains).

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

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

DIA argues that the Department\'s interpretation of § 303 is
impermissibly vague because the Department\'s 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, the cases make 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 met
this test, the Court must consider the words of the statute, and any
limiting constructions proffered by the agency charged with enforcing
the statute. [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] 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. B hereto).^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.

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

On November 10, 1997, DIA wrote a letter asking the Court to take
judicial notice of 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 ruling, which was issued on October 29, 1997, the
district judge granted DIA\'s motion for summary judgment, holding 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\"). But that ruling, which was based on the specific facts related
to the design and construction of the Wall Days Inn, is not relevant to
this case, which involves the design, construction, and operation of the
Hazard Days Inn, for two basic reasons.^1^[^11]

First and foremost, the Court's decision in the South Dakota case was
undeniably limited to the facts of that specific case \-- the Court did
not interpret § 303 of the ADA. And, the facts in this case are
significantly different from the facts in the South Dakota case, with
DIA having significantly greater involvement in the design,
construction, and operation of the Hazard 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 Hazard Days
Inn, that DIA made changes to those blueprints including a change
relating to an accessibility feature, and that the owner and contractor
actually incorporated those changes into the final design and
construction of the Hazard Days Inn.

Second, the decision in the South Dakota action 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 decision in the South Dakota action is internally
inconsistent. First, it declines to revisit the interpretation of § 303
reached in [Ellerbe]{.underline} and [Johanson]{.underline} 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 the position advanced in the
South Dakota case and the position advanced here \-- [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 with respect to 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. Yet, as the briefs in this Court and those in the South
Dakota case plainly demonstrate, the United States has consistently
taken the opposite position \-- [i.e.]{.underline}, that the limiting
language of § 302 is [not]{.underline} incorporated into § 303.

Thus, the opinion of the South Dakota court is simply not relevant to,
or helpful on, the issues before this Court. The United States,
therefore, submits that the ruling of the South Dakota court is not
persuasive authority in this case.

**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
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> JEANINE M. WORDEN
>
> ROBERTA STINAR KIRKENDALL
>
> 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
>
> \(202\) 307-6556

Dated: November 13, 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^In a letter sent to the Court after its opposition to the
    United States' motion for summary judgment was filed, DIA also urges
    the Court to take judicial notice of the ruling in [United States v.
    Days Inns of America, Inc.]{.underline} (D.S.D.), where the U.S.
    District Court for the District of South Dakota held, in a narrow
    ruling based on the facts of that specific case, that DIA did not
    have enough involvement in the design and construction of the Days
    Inn in Wall, South Dakota to make it liable for ADA violations at
    that facility. As discussed in Section E of this Memorandum, the
    Court should resist DIA's urgings to follow the approach taken by
    the South Dakota court, since the opinion of the South Dakota court
    is fact based and does not address the legal issues before this
    Court.

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

[^4]: 4 ^4^Even the court in South Dakota refused to accept DIA's
    construction of § 303, 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.

[^5]: 5 ^5^In opposing a motion for summary judgment, the non-moving
    party bears the burden of coming forward with specific facts showing
    that there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
    [Matsushita Elec. Indus. Co. v. Zenith Radio Corp.]{.underline}, 475
    U.S. 574, 587 (1986).

[^6]: 6 ^6^The fact that the PDSM's design standards cover areas not
    seen by the public proves both that the PDSM is exhaustive and that,
    contrary to DIA's contentions, it goes further than might otherwise
    be required to protect DIA's trade and service marks for purposes of
    the Lanham Act.

[^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. C. 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.

    28 C.F.R. Part 36, Appendix B, § 36.401.

[^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}

[^11]: 1 ^11^DIA implicitly admits that the decision in the South Dakota
    case is not relevant to this action, since it properly declines to
    suggest that the decision would have any res judicata or collateral
    estoppel effect on this case.