Number range CHAPTER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Civil Action No. 96-5012

v\. )

)

DAYS INNS OF AMERICA, INC., )

HFS INCORPORATED, RICHARD HAUK, )

KARLA HAUK, DAVID BAUMANN d/b/a )

CAD DRAFTING PLUS, and DOUBLE H )

ENTERPRISES, INC., )

)

Defendants. )

)

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

**MOTION FOR SUMMARY JUDGMENT**

**(ORAL ARGUMENT REQUESTED)**

In opposing the United States\' motion for summary judgment, DIA and HFS
(collectively, "DIA") continue to ignore the central flaw in their legal
argument --- that their reading of sections 302 and 303 of the ADA
effectively eliminates coverage of commercial facilities from the scope
of section 303. In addition, DIA fails to come forward with evidence to
contradict the United States\' showing that the Wall Days Inn is
inaccessible to individuals with disabilities, and that numerous other
new Days Inn hotels are inaccessible as well. DIA also fails to come
forward with admissible evidence to dispute the various ways in which it
had control over, and participated in, the design and construction of
the Wall Days Inn and other new Days Inn hotels. Rather, DIA opposes the
United States\' motion by repeatedly misrepresenting the record, and by
attempting to distort the United States\' position --- and then calling
those distortions vague, unreasonable, and unworkable. In doing so, DIA
fails to establish that there is any genuine issue of material fact that
precludes judgment as a matter of law.

**ARGUMENT**

**A. DIA Continues to Ignore the Central Flaw in its Argument about the
Coverage of Section 303 of the ADA**.

Nowhere in its argument does DIA address the central flaw in its reading
of sections 302 and 303 of the ADA. DIA never explains why section 303,
which applies to both public accommodations and commercial facilities,
should be limited to parties who own, operate, or lease public
accommodations. DIA\'s reading of the statute would effectively
eliminate commercial facilities from the coverage of section 303. *See*
United States\' Memorandum in Support of its Motion for Summary Judgment
("U.S. Memorandum") at 17-20; United States Memorandum in Opposition to
Days Inns of America, Inc. and HFS Incorporated\'s Motion for Summary
Judgment ("U.S. Opposition") at 7-9.

DIA\'s only answer is to call the government\'s position
"hypertechnical." Memorandum of Days Inns of America, Inc. and HFS
Incorporated in Opposition to Plaintiff\'s Motion for Summary Judgment
("DIA Opposition") at 13. Despite DIA\'s posturing, however, and its
repeated insistence that the government\'s reading of section 303 makes
no sense, a second federal court, also in the Eighth Circuit, has now
concluded that the government\'s reading of section 303 is correct. In
[United States v. Ellerbe Becket, Inc.]{.underline}, Civil No. 4-96-995
(D. Minn. October 2, 1997) (copy provided as Exhibit A to this
memorandum), the United States sued the Ellerbe Becket architectural
firm for repeatedly designing new sports stadiums and arenas in
violation of the ADA\'s architectural requirements for new construction.
Ellerbe moved to dismiss the action against it, arguing (as DIA does
here), that architects are not covered by section 303 because the "plain
language" of title III requires that section 303 be limited to parties
who own, operate, or lease the facility in question. The court squarely
rejected that argument:

> Congress clearly intended that commercial facilities be subject to the
> accessibility standards for new construction. *See* 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* *Moskal v. United States*, 498 U.S. 103, 109-110 (1990). Ellerbe
> 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. Ellerbe 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 Ellerbe\'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 Ellerbe firm did not own, operate, or lease any of the facilities in
question, it could nonetheless be held liable under section 303 of the
ADA, and denied Ellerbe\'s motion to dismiss. [Id]{.underline}. at 6,
13. *See also* [Johanson v. Huizenga Holdings, Inc.]{.underline}, 963 F.
Supp. 1175, 1178 (S.D. Fla. 1997) (same). In sum, far from being
"hypertechnical," both the [Ellerbe]{.underline} and
[Johanson]{.underline} courts have concluded that the government\'s
position is firmly grounded in the language and structure of sections
302 and 303.[^1]

B. The Undisputed Facts Demonstrate that DIA and HFS have Violated
Section 303 of the ADA.

Although DIA has responded to many of the facts included in the United
States\' Statement of Undisputed Facts ("U.S. 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 that any
genuine issue of material fact precludes judgment as a matter of
law.[^2]

*1. The Facts Underlying the United States\' Claims are Not Disputed.*

DIA has not responded in any fashion to several of the facts established
in the United States\' statement of facts, and has not contested many
more.[^3] Accordingly, those facts are conclusively established for
purposes of this action, D.S.D. LR 56.1(D), and they are sufficient to
establish that the United States is entitled to summary judgment. DIA
has not controverted, for instance, the facts demonstrating that the
Wall Days Inn is a newly constructed hotel subject to the ADA\'s
architectural accessibility requirements for newly constructed
facilities. U.S. Facts ¶¶ 6-9. *See also* 42 U.S.C. §§ 12181(2), (7),
12183(a)(1); 28 C.F.R. §§ 36.401, 36.406. Similarly, DIA has not
controverted the facts establishing that the Wall Days Inn and several
other new Days Inn hotels are not accessible to individuals with
disabilities, failing in many respects to comply with the ADA\'s
Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the
Standards"). U.S. Facts ¶¶ 77-78, 80-88.[^4] *See also* U.S. Memorandum
at 2-6. DIA also has not come forward with evidence to contradict the
facts demonstrating its control over, and participation in, the design
and construction of the Wall Days Inn, U.S. Facts ¶¶ 28-29, 44-76, or
other new Days Inn hotels. U.S. Facts ¶¶ 16, 18-24, 27, 30, 32.b, c,
33-34, 38-40, 42-43. *See also* U.S. Memorandum at 7-12.

*2. DIA Repeatedly Misrepresents the Record.*

On the relatively few occasions when DIA does attempt to dispute some
fact established by the United States, DIA\'s claim frequently rests on
a misrepresentation of the testimony of some witness, or a
misrepresentation of the record as a whole. One of the most blatant
examples of this practice occurs when 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." DIA Fact Response ¶ 41 (citing the testimony of W.
Kraft and R. Tischler). DIA made a similar claim in its own statement of
facts. *See* Days Inns of America, Inc. and HFS Incorporated\'s
Statement of Undisputed Material Facts ("DIA Facts") ¶ 17. As the United
States explained in its response to DIA\'s claim, the record simply does
not support DIA\'s claim. The testimony of Mr. Keeble, DIA\'s Rule
30(b)(6) designee, and Mr. Hoagland, the former head of the 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." *See* United States\' Response to Days Inns of America,
Inc. and HFS Incorporated\'s Statement of Undisputed Material Facts
("U.S. Fact Response") ¶ 17. The testimony of Mr. Kraft and Mr. Tischler
is insufficient to create a genuine issue of material fact. Messrs.
Kraft and Tischler were formerly employed by HFS as architects; they did
not have management responsibilities. Keeble Dep., Ex. 19, at 149-50,
167-68. Neither has any 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,
e.g.,* [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 testimony of its own expert witness,
Mr. Kiewel, with respect to the nature of the Days Inn PDSM. DIA cites a
portion of his testimony for the proposition that the PDSM is not
comprehensive, but simply defines DIA\'s position in the hotel market.
DIA Fact Response ¶ 32.a. What DIA does not say 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,
and that it included provisions that had nothing to do with defining
DIA\'s position in the market. *See* U.S. Fact Response ¶ 8; Kiewel
Dep., Ex. 20, at 163, 168-69, 176-79. *See also* U.S. Facts ¶ 33
(describing items addressed by PDSM); Tischler Dep., Ex. 25, at 88
(describing the Days Inn PDSM as the "most comprehensive" of all of the
HFS hotel chains).

DIA also misrepresents the testimony of Richard Hauk. In addressing the
issue of who it is that operates the Wall Days Inn, DIA introduces a
portion of Mr. Hauk\'s testimony about a letter he wrote to the
Department of Justice during the Department\'s investigation of the Wall
Days Inn. DIA Fact Response ¶¶ 88-91. In that letter Mr. Hauk identified
himself and his wife as the operators of the hotel, and, as the
testimony quoted by DIA shows, confirmed that answer during his
deposition. [Id]{.underline}. What DIA does not include is that Mr. Hauk
further testified that he did not consult a lawyer in preparing his
response to that letter, and that he did not mean to offer a legal
opinion as to who was "operating" the hotel. R. Hauk Dep, Ex. 26, at
422-23. Moreover, Mr. Hauk also testified that he runs the Days Inn
differently that he does his other hotels, because DIA requires him to
do so. [Id]{.underline}. at 167-68, 402-21. *See* U.S. Opposition at
4-6.[^5]

C. The United States\' Reading of Section 303 Does Not Make the Statute
Void for Vagueness.

DIA continues to misrepresent or distort the United States\' position,
and the testimony of government witnesses, when it argues that the
United States\' reading of section 303 renders the statute so vague as
to be unconstitutional. DIA Opposition at 5-9. DIA begins by quoting
only a portion of the United States\' memorandum regarding the test for
liability under section 303, presenting that limited view of the
government\'s position as if it were the whole of the matter. DIA
Opposition at 5. The United States has never taken the position,
however, that every party involved in the design and construction of an
inaccessible facility is responsible for all ADA violations at that
facility. Participating in, or having control over, the design and
construction of the facility is only one element of the inquiry; before
a party may be held liable under section 303, there must also be a
showing that some feature or element of the facility fails to comply
with the Standards, and that the failure to comply with the Standards
fell within the scope of the party\'s involvement in the project. *See*
U.S. Memorandum at 14-15.

Thus, DIA misses the point when it discusses the testimony of the United
States\' expert, Mr. William Hecker, regarding the various parties that
may be involved in the design and construction of a new facility. DIA
Opposition at 5-6. Mr. Hecker quite reasonably responded to DIA\'s
increasingly strained hypothetical questions about what individuals or
entities might be "involved in" the design of a new facility. What DIA
did [not]{.underline} ask Mr. Hecker, and what Mr. Hecker did not
express any opinion on, was whether those same individuals or entities
would have any liability under section 303 of the ADA for failures to
comply with the Standards. That is, while DIA posed many hypotheticals
involving individuals or entities with very attenuated connections to
the design of the facility, DIA did not ask what the extent of the
liability of those parties would be. Under the government\'s view of the
statute --- though DIA continues to refuse to acknowledge it --- the
scope of any party\'s liability is commensurate with the scope of that
party\'s involvement in, or control over, the design and construction of
the facility. *See* U.S. Memorandum at 14-15. Given that the examples
offered by DIA concern parties whose involvement or control is quite
attenuated, it is quite likely that those individuals and entities would
have no liability at all under section 303. *See also* U.S. Opposition
at 15-20.[^6]

Similarly, DIA seizes on the testimony of the United States\' Rule
30(b)(6) designee, Ms. Elizabeth Savage, and attempts to wring from it
some inconsistency. DIA Opposition at 6-8.[^7] Ms. Savage\'s testimony
was entirely consistent with the position the United States has taken
throughout this case: any party who participates in the design and
construction of an inaccessible facility may be held liable under
section 303, but the scope of that party\'s liability extends only as
far as that party\'s involvement in, or control over, the design and
construction of the facility. *See* Savage Dep., Ex. 48, at 81, 103
(testifying that "\[y\]our liability is coextensive with the scope of
your involvement and participation," and that "\[t\]he test \[under
section 303\] is that you are involved in the design and construction
and that your liability is coextensive with the extent of your
involvement.") Thus, a carpenter who frames doorways that are too narrow
to comply with the Standards has participated in the design and
construction of an inaccessible element of the facility, and can be held
responsible under section 303 for doing so. That carpenter cannot,
however, be held responsible for ADA violations in portions of the
facility with which he had nothing to do.

Moreover, DIA flatly misrepresents Ms. Savage\'s testimony with respect
to the liability of the owner of the facility. DIA claims that Ms.
Savage testified that an owner who was not "involved in" the design and
construction of a new facility would have no liability for violations of
the Standards at that facility. DIA Opposition at 7. That is precisely
[not]{.underline} Ms. Savage\'s testimony. Although it is not the
portion of her testimony cited by DIA,[^8] Ms. Savage was asked about
the responsibility of an owner who purchases a completed building from
the firm that has designed and constructed it --- an owner that has no
input into or control over the design or construction of the facility.
Savage Dep., Ex. 48, at 128-29. Given that the statute only makes it
illegal to "design" and "construct" inaccessible facilities --- not to
purchase an inaccessible facility --- it is not at all clear that the
owner in the hypothetical posed by DIA\'s counsel would have any
responsibility for ADA violations at the facility. Ms. Savage expressed
her skepticism that such a situation ever would arise, and answered ---
quite consistently with the United States\' position --- that the
liability of the owner would depend on the facts. [Id]{.underline}. at
130. Indeed, as soon as DIA\'s counsel modified the hypothetical to
include some involvement or control by the owner (the review of
schematic plans by the owner), Ms. Savage testified that that would make
it more likely that the owner would have some responsibility under
section 303. [Id]{.underline}. at 130-31. Ms. Savage\'s testimony with
regard to parties that supply construction materials was also consistent
with the United States\' position. *See* U.S. Opposition at 16. Ms.
Savage was asked about the liability of an entity who simply supplies
doors for a project; there were no other facts to suggest that the
entity in question had any involvement in, or control over, the design
of the facility, or the construction of the facility. Savage Dep., Ex.
48, at 263. Ms. Savage responded that suppliers who do no more than
supply materials are not involved in the "design" or "construction" of
the facility, and therefore have no liability. [Id]{.underline}. at 264.
While DIA may not agree with the limits inherent in the United States\'
view of section 303, DIA is simply wrong to suggest that the
government\'s reading of section 303 has no limits. To the contrary, the
United States\' consistently expressed position provides a carefully
measured test of liability under section 303, assigning liability to
those parties who engage in the conduct prohibited by Congress: the
design and construction of inaccessible facilities.

In any event, even if DIA had been able to pose a hypothetical situation
which confounded Ms. Savage --- which it did not --- doing so is
insufficient to establish that the statute, or the government\'s reading
of it, is void for vagueness. 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 section 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. [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). Thus, section 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 section 303 itself provides ample notice of the conduct
that it prohibits: the design and construction of inaccessible
facilities. Moreover, the government has consistently interpreted
section 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 the section consistently with its
broad prohibition of the design and construction of inaccessible
facilities:

> 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. In addition, the Department of
Justice specifically addressed the scope of section 303\'s coverage in
its Technical Assistance Manual for title III. The TA 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 section 303. 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} §
III-5.1000 at 45-46 (November 1993) (Ex. 49).[^9] 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.

**D. DIA\'s Various Other Objections to the United States\' Reading of
Section 303 are Equally Baseless.**

DIA also advances a hodgepodge of mistaken and irrelevant legal
arguments, several of which appear in DIA\'s response to the United
States\' Statement of Undisputed Facts. For instance, DIA responds to
facts relating to its control over the design and construction of new
Days Inn hotels by arguing that although it had control over some aspect
of the design and construction of the hotel, DIA failed to exercise that
control.[^10] DIA then contends that because it failed to exercise its
authority, that element of its control over the design and construction
of the Wall Days Inn contributes nothing to establishing its liability.
*See, e.g.,* DIA Opposition at 17 n.7, n.8; DIA Fact Response ¶¶ 27.a,
c, d, 29.c, d, e, f, g. That DIA failed to exercise its authority,
however, does not relieve it of responsibility. When DIA reserved to
itself control over the design and construction of new Days Inn hotels,
including the Wall Days Inn, DIA also acquired the responsibility to
comply with the ADA\'s requirements for new construction. *See* U.S.
Opposition at 17-19. And because section 303 defines illegal
discrimination to include the [failure]{.underline} to design and
construct new facilities to be accessible to individuals with
disabilities, 42 U.S.C. § 12183(a)(1), it is precisely DIA\'s failure to
act --- its failure to exercise the authority it had, to make new Days
Inn hotels accessible to individuals with disabilities --- that is the
source of DIA\'s liability. It is no defense for DIA to argue that by
failing to act, it is not liable. Put differently, once DIA inserted
itself into the process of designing and constructing new Days Inn
hotels, it inserted itself into the group of parties responsible for
designing and constructing those hotels to be accessible to individuals
with disabilities. When it failed to act to correct ADA violations at
new Days Inn hotels, DIA violated section 303.[^11]

Similarly, DIA responds to the existence of ADA violations at the Wall
Days Inn and the other newly constructed Days Inn hotels by pointing out
that for several of the ADA violations, the feature or element of the
hotel in question also violates some provision of the Days Inn Planning
and Design Standards Manual. *See, e.g.*, DIA Fact Response ¶¶ 77, 78.b,
d, i, o. While DIA\'s response does not in any way contradict the United
States\' contention that the feature or element of the hotel in question
fails to comply with the Standards, it does establish that DIA not only
failed to act to comply with the ADA, but did not even enforce its own
"barrier-free" requirements. *See* U.S. Facts ¶ 124.

Another of DIA\'s responses to the undisputed facts is to contend that
although DIA does prepare conceptual site plans, architectural
renderings, prototype drawings, and other similar plans and drawings,
DIA does not prepare final construction drawings for hotels, and that
the materials it does prepare cannot be used by themselves to construct
any facility. *See, e.g.,* DIA Fact Response ¶¶ 34, 42.b, d, 61.
Implicit in DIA\'s response is the suggestion that to "design" a
facility, one must prepare the final construction drawings for the
facility. DIA\'s own architectural expert testified, however, that the
process of designing a building does not include only the preparation of
final construction drawings. He identified several earlier stages in the
process --- stages which identify and resolve various design issues ---
and testified that each of these stages is a necessary part of designing
a building. Kiewel Dep., Ex. 20, at 219-23. Indeed, he specifically
testified that many of the design services provided by DIA, including
preparation of conceptual site plans, issuance of the PDSM, and
preparation of prototype drawings, were typical of the early and middle
stages of designing a building (stages commonly known as schematic
design and design development). [Id]{.underline}. at 228-39. *See also*
U.S. Opposition at 4 n.2.[^12] Moreover, DIA has not controverted the
testimony of Mr. Hauk that he used DIA\'s conceptual site plan to
determine whether it was financially feasible to go forward with the
project. U.S. Facts ¶ 61.a.

In the course of arguing that its preparation of a conceptual site plan
for the Wall hotel was not part of "designing" the Wall Days Inn, DIA
cites the testimony of Charles Hayes, principal of Double H Enterprises,
for the proposition that preparing a conceptual site plan is not part of
designing a facility. DIA Fact Response ¶ 61. Once again, DIA flatly
misrepresents deposition testimony. While it is true that Mr. Hayes
acknowledged that it would not be possible to use the conceptual site
plan to build a hotel, Hayes Dep, Ex. 29, at 164-65, he testified that
preparing a site plan was part of the process of designing a building,
and that before final construction drawings can be prepared, other
preliminary drawings would have to be completed first, to set the
building footprint and basic room layout, and to determine the number of
rooms and parking spaces at the hotel. [Id]{.underline}. at 167-69. He
referred to one of these preliminary drawings as the "site," or the
"conceptual site," and specifically testified that he considered this
preliminary work to be part of the process of designing a hotel.
[Id]{.underline}.

DIA again misrepresents deposition testimony when it argues that
architects and contractors need not be held liable under the ADA to
ensure that they will design and construct accessible facilities,
because they have independent professional obligations to comply with
the law. DIA Opposition at 12. The only support DIA offers for this
position is the deposition testimony of the United States\' expert, Mr.
Hecker. Mr. Hecker specifically testified, however, that he did not know
if failing to comply with applicable laws would cause an architect to
lose his or her license. Hecker Dep., Ex.52, at 39.[^13] Indeed, as
DIA\'s own expert testified, state codes of professional conduct
(including South Dakota\'s) generally require only that architects
refrain from designing facilities which [both]{.underline} violate
applicable laws [and]{.underline} materially affect public safety.
Kiewel Dep., Ex. 20, at 121-25. Accordingly, Mr. Kiewel acknowledged
that an architect might well be able to design a facility that does not
comply with the ADA without violating the architect\'s code of
professional responsibility. [Id]{.underline}. at 121-25, 144.[^14]

Finally, DIA fails satisfactorily to explain why Congress included the
term "design" in section 303 if Congress did not intend for section 303
to apply to entities that design new facilities (even if those entities
do not own, operate, or lease the facilities in question). *See* U.S.
Memorandum at 20. DIA\'s only response is to point out that, in issuing
the regulation to implement title III of the ADA, the Department of
Justice relied on the presence of the term "design" to include, in the
section of the regulation dealing with the effective date of section
303, a provision regarding applications for building permits. DIA
Opposition at 13-14. While DIA\'s account of why that provision was
included in the regulation is correct, it is irrelevant. The various
implications of the use of the term "design" are not mutually exclusive:
that Congress\' use of the term "design" had implications for
determining when the Act takes effect in no way suggests that that term
does not also have implications for who the Act covers.

**E. DIA has Engaged in a Pattern or Practice of Illegal
Discrimination**

In addition to violating section 303 of the ADA with respect to the
Willows Days Inn in particular, the undisputed facts further show that
DIA has repeatedly participated in the design and construction of
inaccessible Days Inn hotels. *See* U.S. Memorandum at 10-12. Neither
DIA\'s opposition memorandum nor its response to the United States\'
fact statement addresses the United States\' pattern or practice claim.
DIA has filed, however, a document captioned Supplemental Response to
United States\' Statement of Material Facts ("DIA Supplemental Fact
Response"), in which DIA asserts, without citing any authority, that the
United States has failed to carry its burden to establish that DIA has
engaged in a pattern or practice of illegal discrimination. DIA
Supplemental Fact Response ¶ 3, at 1. In addition, DIA again
misrepresents the facts and testimony relating to its involvement in the
design and construction of three other new Days Inn hotels.
[Id]{.underline}. ¶ 3.a, b, c, d.

In order to establish that DIA's conduct constitutes a pattern or
practice of discrimination, the United States must prove

more than the mere occurrence of isolated or "accidental" or sporadic
discriminatory acts. It ha\[s\] to establish by a preponderance of the
evidence 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, the United States is not required to offer
evidence with respect to each particular example of discrimination that
is part of the pattern or practice of illegal conduct; rather its burden
is to establish that a pattern or practice existed. [Id]{.underline}. at
360. *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, government in pattern or practice
case will typically adduce more general evidence relating to defendant's
standard policies or practices).[^15] And while the evidence must
establish that the conduct at issue was the defendant\'s standard policy
or practice, there is no minimum number of examples of that conduct that
must be provided. Indeed, if a single example can be shown to be typical
of the defendant\'s conduct, it suffices to establish the pattern or
practice. *See* [Johnson v. Hale]{.underline}, 13 F.3d 1351, 1354 (9th
Cir. 1994) (defendant's single statement that she would not rent to the
black plaintiffs because of race "itself confesses a pattern 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 . . . .").

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 (including things like 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. Memorandum at 10-12. DIA\'s control
over and participation in the design and construction of the Wall Days
Inn is thoroughly consistent with this pattern. *See* U.S. Memorandum at
7-10. And the undisputed facts show that the Wall Days Inn fails to
comply with the Standards for Accessible Design in numerous respects,
that numerous other new Days Inn hotels fail to comply with the
Standards, and that the violations of the Standards at the Wall Days Inn
are largely typical of violations found at other new Days Inn hotels.
*See* U.S. Memorandum at 2-6. 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 carried its
burden, and has established that DIA has engaged in a pattern or
practice of illegal discrimination.[^16]

DIA once again attempts to distort the record, this time with respect to
the facts relating to other new Days Inn hotels. What the record shows
is that as with the Wall Days Inn, DIA\'s involvement in the design and
construction of those hotels was also quite extensive. For instance, the
plans for the new Days Inn hotel in Hazard, Kentucky, had originally
been used to build a new Days Inn hotel in Indiana, and were sold to
Wilgus Napier, the owner of the Hazard hotel, by a DIA franchise broker.
Deposition of Wilgus Napier ("Napier Dep."), Ex. 53, at 31-33. Mr.
Napier and his architect, Douglas Kidd, made minor changes to those
plans, and used them to build Days Inn hotels in Berea, Kentucky, and
Mount Vernon, Kentucky, before using them to build the hotel in Hazard.
[Id]{.underline}. at 38-39, 47-48. *See also* Deposition of J. Douglas
Kidd, Ex. 54, at 29-30, 36-39, 42-45. Thus, the plans for the Hazard
Days Inn were not only sold by a DIA broker, but, by the time they were
used to build the Hazard hotel, had been reviewed and approved by DIA,
in connection with the Berea Days Inn. Napier Dep., Ex. 53, at 36-38.
Given that before they built the Hazard Days Inn Mr. Napier and Mr. Kidd
had designed and constructed two other new Days Inn hotels, both of
which were accepted into the Days Inn system, it is not surprising that
Mr. Kidd felt no need to refer to the Days Inn PDSM in designing the
Hazard hotel.

Similarly, DIA had extensive involvement in the design and construction
of the new Days Inn hotel in Willows, California. As had Mr. Baumann,
the architect for the Willows hotel, Arvind Iyer, had designed other
Days Inn hotels, which was one of the reasons he was hired by the owners
of that hotel. Deposition of Arvind Iyer ("Iyer Dep."), Ex. 55, at
86-89; Deposition of Bankim Patel ("B. Patel Dep."), Ex. 56, at 35,
198.[^17] Although DIA attempts to hide the fact, Mr. Iyer testified
that he received the Days Inn PDSM in October 1992, about one and a half
months before the plans for the Willows Days Inn were put out for bid.
[Id]{.underline}. at 328, 330. He also acknowledged that an architect at
his firm had referred to the PDSM on at least one occasion

during the construction of the hotel, to answer a question from the
contractor about sound transmission through the hotel\'s walls.
[Id]{.underline}. at 335-36. Further, he submitted plans for DIA\'s
review, and incorporated DIA\'s comments into the final plans for the
facility. [Id]{.underline}. at 243-46; B. Patel Dep., Ex. 56, at 67-72,
78.[^18]

In the end, even if the architects for the other three Days Inn hotels
identified by DIA had never received the PDSM, each of those hotels
(like the Wall Days Inn) was still required by the terms of the license
agreement for that hotel to comply with the design requirements of the
PDSM. The plans for each hotel were reviewed by DIA (or were subject to
review by DIA) for compliance with those requirements. *See* DIA\'s Fact
Response ¶ 41. Thus, even if there were a genuine dispute on the
question of whether those architects had received the PDSM, or what use
they had made of it, summary judgment would still be appropriate. DIA\'s
control over, and participation in, the design and construction of those
hotels (and other new Days Inn hotels) was not limited to issuance of
the PDSM. The undisputed facts demonstrate that DIA\'s control and
participation were far more extensive than that, so that the role of the
PDSM is not dispositive, and its absence from any particular case in no
way jeopardizes the United States\' showing that DIA has engaged in a
pattern or practice of discrimination.

**F. DIA and HFS are Effectively the Same Entity**.

The undisputed facts show that DIA and HFS are so closely intertwined as
to be effectively the same entity. *See* U.S. Facts ¶¶ 10-11, 116-19.
DIA is a wholly owned subsidiary of HFS; HFS issues a consolidated
annual report for itself and DIA, containing consolidated financial
statements. [Id]{.underline}. ¶¶ 11, 118. They have the same principal
place of business, and share office space. [Id]{.underline}. ¶¶ 10, 117.
Perhaps most importantly, DIA has no employees of its own; all DIA
functions are carried out by officers or employees of HFS.
[Id]{.underline}. ¶ 119. Neither DIA nor HFS disputes any of these
facts. Every action DIA takes, from soliciting potential licensees, to
reviewing plans for new hotels, to inspecting the completed facilities,
is undertaken by an employee of HFS, at the direction of HFS\'
management. HFS owns and controls DIA and the Days Inn system, and is
every bit as responsible as DIA for the violations of the ADA at new
Days Inn hotels.

**G. DIA Has Not Acted in Good Faith, and a Civil Penalty is
Appropriate.**

DIA\'s opposition memorandum does not address the United States\'
request for the imposition of a civil penalty. Moreover, DIA has not
come forward with any evidence either to contradict the facts
established by the government, or affirmatively to establish that DIA
made any good faith effort to comply with the ADA. To the contrary, DIA
admits that when it reissued the PDSM in January 1992 (the same month
the ADA\'s new construction requirements began to go into effect), it
did not check the "barrier free" requirements in the PDSM to see if they
were consistent with the ADA\'s Standards for Accessible Design. U.S.
Facts ¶ 121; DIA Fact Response ¶ 121. DIA also admits that it takes no
steps to ascertain whether the hotels in its chain are accessible to
individuals with disabilities. U.S. Facts ¶ 126; DIA Fact Response ¶
126. DIA also admits that it does not review plans for new hotels either
for compliance with the ADA, or with DIA\'s own barrier-free
requirements. U.S. Facts ¶ 122; DIA Fact Response ¶ 122. Indeed, the
only claim DIA makes in this regard is that it has encouraged its
licensees to comply with the ADA. DIA Facts ¶ 13. As the United States
pointed out in its response, however, the evidence cited by DIA does not
support its claim. U.S. Fact Response ¶ 13. Indeed, that "evidence"
consists of a memorandum that, according to Mr. Keeble, was not
distributed to Days Inn licensees, and two other memoranda (one of which
was prepared by the government, not DIA) for which there is no evidence
showing when, how, or to whom they were distributed, if they were
distributed at all. [Id]{.underline}. DIA has thus fallen far short of
making any credible showing of good faith, and a substantial civil
penalty should be imposed.[^19]

**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

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

THOMAS M. CONTOIS

JEANINE M. WORDEN

MARGARITA M. PRIETO

ROBERTA STINAR KIRKENDALL

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6014

DIANA RYAN

Assistant U.S. Attorney

226 Federal Building

515 Ninth Street

Rapid City, South Dakota 57701

Dated: October 8, 1997

CERTIFICATE OF SERVICE

I hereby certify that true copies of the United States\' Reply
Memorandum in Support of its Motion for Summary Judgment, and Volumes X
and XI of the Exhibits to the United States\' Statement of Material
Facts were served upon

Mr. William L. Killion

Gray, Plant, Mooty, Mooty & Bennett, P.A.

3400 City Center

33 South Sixth Street

Minneapolis, Minnesota 55402

\(612\) 343-2800

\(612\) 333-0066 (telefacsimile)

attorneys for defendants Days Inns of America, Inc., and HFS
Incorporated, by common carrier Federal Express on October 8, 1997.

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

Thomas M. Contois

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6014

[^1]: ^?^The [Ellerbe]{.underline} court added that even if it found
    that the language of sections 302 and 303 were ambiguous, it would
    reach the same result, because it would defer to the Department of
    Justice\'s interpretation of the statute. [Ellerbe]{.underline},
    slip op. at 11 n.4. *See also* U.S. Opposition at 9-10.

[^2]: ^?^In opposing a motion for summary judgment, the non-moving party
    must come 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); [Miners v. Cargill Communications, Inc.]{.underline}, 113
    F.3d 820, 823 (8th Cir. 1997).

[^3]: ^?^DIA has not responded in any fashion to paragraphs 4, 6-18,
    20-23, 26, 38-39, 44-49, 62, 66, 70-71, 75, 85-87, 94, 99-100,
    102-103, 106, 116-119, or 128-130 of the United States\' Statement
    of Material Facts. *See* DIA\'s Response to United States\'
    Statement of Material Facts ("DIA Fact Response"). In addition,
    while DIA has responded to several other paragraphs, it has not
    offered any evidence to contradict, and does not claim to dispute,
    the facts underlying several other paragraphs, including ¶¶ 1-3, 19,
    24, 27-31, 32 (except 32.a), 33-34, 40, 41 (except for DIA\'s claim
    that the comments its architects would make on plans for new Days
    Inn hotels were only "recommendations" or "suggestions" --- *see
    infra* at 5-6), 42, 43, 50-61, 63-65, 67-69, 72-74, 76-84, 88
    (except for DIA\'s suggestion that Mr. Hauk testified that he and
    his wife are solely responsible for the operation of the Wall Days
    Inn --- *see infra* at 6-7), 89-93, 95, 96 (except 96.h), 97-98, 101
    (except for the issue of the extent to which the Hauks have modified
    their operating practices to provide 24 hour front desk service),
    104-05, 107-115, and 121-127. In sum, there can be little question
    that the only remaining disputes are legal disputes, and that it is
    appropriate that this case be decided as a matter of law.

[^4]: ^?^DIA admits that it has no basis on which to dispute the
    findings of the United States\' expert, Mr. William Hecker, with
    respect to the inaccessibility of the Wall Days Inn and the other
    new Days Inn hotels, but asserts that his findings are not
    admissible. DIA Fact Response ¶¶ 78-84. The assertion is baseless.
    The United States provided Mr. Hecker\'s expert report to DIA in
    advance of Mr. Hecker\'s deposition, and DIA questioned Mr. Hecker
    about those reports at length. Mr. Hecker testified, under oath,
    about the methods he used to survey the hotels in question, to
    determine how accessible (or inaccessible) they were to individuals
    with disabilities. Deposition of William Hecker (\"Hecker Dep.\"),
    Ex. 52, at 125-33. He further testified, under oath, that the
    reports provided to DIA --- the reports provided as Exhibits 17 and
    18 to the United States\' Statement of Material Facts --- contained
    the findings of his surveys of each of the Days Inn hotels in
    question, and his opinions about the degree to which each hotel was
    or was not accessible to individuals with disabilities.
    [Id]{.underline}. at 173-78. Nonetheless, out of an abundance of
    caution, to resolve any remaining question about the admissibility
    of Mr. Hecker\'s findings, or his expert reports, the United States
    has provided Mr. Hecker\'s declaration that the reports do, in fact,
    contain his findings and opinions. *See* Declaration of Mr. William
    Hecker, AIA (\"Hecker Dec.\"), Ex. 51. (Simultaneously with the
    filing of this Reply Memorandum, the United States is filing two
    additional Volumes of Exhibits (Volumes X and XI, containing
    Exhibits 51 through 56) to the United States\' Statement of Material
    Facts. These volumes contain Exhibits made relevant by DIA\'s
    opposition to the United States\' Motion for Summary Judgment.)

[^5]: ^?^Finally, DIA also attempts not just to misrepresent the
    evidence developed in discovery, but to change it altogether. In
    response to DIA\'s argument that only those parties who own,
    operate, or lease the facility in question may be held liable for
    violations of section 303, the United States has argued in the
    alternative that DIA operates the Wall Days Inn and other Days Inn
    hotels. *See* U.S. Memorandum at 25-34. In a desperate attempt to
    stave off summary judgment on this issue as well, DIA has submitted
    an affidavit from Mr. William Keeble, DIA\'s Rule 30(b)(6) designee.
    Evidently unsatisfied with Mr. Keeble\'s four days of deposition
    testimony, DIA has now confected this affidavit, which purports to
    show that DIA\'s control over the daily operations of hotels in its
    system is insufficient to render it liable under DIA\'s reading of
    the statute. The affidavit is both insufficient to create a genuine
    issue of material fact, and plainly inadmissible, and the United
    States, simultaneously with the filing of this reply memorandum, is
    moving to strike Mr. Keeble\'s affidavit. As more fully set out in
    the motion to strike, the affidavit is not based on personal
    knowledge, offers inadmissible opinion and hearsay testimony, is
    conclusory, and is inconsistent with witnesses\' sworn deposition
    testimony. *See* United States\' Memorandum in Support of Its Motion
    to Strike Affidavit of William Keeble.

[^6]: ^?^Part of DIA\'s distortion of the United States\' position is
    its suggestion that the government would impose liability on a party
    who does no more than review (or even just look at) plans for the
    facility in question. DIA Opposition at 6 (giving examples of
    interns in an architectural office, a bank\'s board of directors,
    and students in an architectural class). Simply looking at a set of
    plans, without more, does not constitute "design" of a new facility
    in any meaningful sense, and does not fall within the coverage of
    section 303. DIA, of course, has done considerably more than just
    look at plans for new hotels, including the Wall Days Inn. Among
    other things, DIA has issued detailed design requirements for new
    hotels in its system, reviews plans for compliance with those
    requirements, requires licensees to make changes to their plans to
    meet those requirements, and inspects completed hotels to ascertain
    whether they meet those requirements. This is far different from the
    architectural student who sees a set of plans as part of some
    academic exercise, or even a bank or other lender that obtains a
    copy of the plans for a new facility, but which does not promulgate
    and enforce its own detailed design requirements.

[^7]: ^?^DIA also complains that Ms. Savage changed certain portions of
    her deposition transcript, pursuant to Fed. R. Civ. P. 30(e). Ms.
    Savage\'s review of her deposition testimony, however, fully
    comports with the requirements of that Rule, which provides that the
    deponent has 30 days after the deposition "to review the transcript
    . . . and, if there are changes in form or substance, to sign a
    statement reciting such changes and the reasons given by the
    deponent for making them." Fed. R. Civ. P. 30(e). Ms. Savage
    returned the errata sheet provided by the court reporter within 30
    days of her deposition, reciting the changes and the reasons for
    making them. Given that and changes are part of the witness\' sworn
    deposition testimony, the Rule imposes no further requirement that
    the statement of changes be sworn or notarized. Most importantly,
    though, as noted previously, the changed portions of Ms. Savage\'s
    testimony were consistent with other portions of her testimony, and
    with other discovery responses provided by the United States. *See*
    U.S. Opposition at 24 n.17. In this respect, the changes made by Ms.
    Savage are unlike the assertions contained in Mr. Keeble\'s
    eleventh-hour affidavit, assertions which are not consistent with
    his sworn deposition testimony.

[^8]: ^?^Indeed, the portion of Ms. Savage\'s testimony first cited by
    DIA (pages 261-63) has nothing to do with the liability of the owner
    of a facility.

[^9]: ^?^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}.

[^10]: ^?^For instance, DIA argues that it reviewed only preliminary
    plans for the hotel, that its comments on those plans were not
    incorporated into the design of the hotel, and that it was never
    provided with final plans for the hotel. DIA Opposition at 3-4. DIA
    does not dispute, however, that it had the authority, under the
    terms of its license agreement, to require the Hauks to submit final
    plans for the hotel, and to make any changes specified by DIA\'s
    architect. The reason DIA never received or reviewed final plans for
    the Wall hotel is that it never asked for them. Keeble Dep., Ex. 19,
    at 904-05; Zelazny Dep., Ex. 22, at 102-05; Baumann Dep., Ex. 28, at
    107, 221.

[^11]: ^?^Similarly, it is no defense for DIA to argue that it has left
    the matter of complying with the ADA to its licensees. The duty to
    comply with the ADA, as with other federal civil rights statutes, is
    not delegable. *See* U.S. Opposition at 25-28.

[^12]: ^?^Indeed, throughout its papers, DIA implicitly assumes, with
    respect to a variety of issues, that only one person or entity has
    or can have responsibility for particular legal requirements with
    respect to the design and construction of a new facility. There is
    no basis, however, for DIA\'s repeated suggestions that because some
    architect "designed" the hotel, and some contractor "constructed"
    it, those are the [only]{.underline} parties who "designed" and
    "constructed" the hotel, or the only parties who have any legal
    obligations with respect to the design and construction of the
    hotel. Indeed, Mr. Kiewel himself testified that no one person
    designs an entire facility; rather, the design team may include not
    just the architect of record, but also various engineers and other
    designers. Kiewel Dep. Ex. 20, at 40-44. He added that even though
    none of these individuals, including the architect of record,
    designs the entire facility, each of them nonetheless "designs" the
    facility, and each of them has legal responsibilities.
    [Id]{.underline}. at 40-44, 127-29. Similarly, Mr. Kiewel testified
    that numerous parties, including the owner, the general contractor,
    various subcontractors, and others, typically are involved in the
    construction of a new facility --- as he put it, they are
    "participating in the construction" --- and that each of them was
    "constructing" the facility. [Id]{.underline}. at 216-19.

[^13]: ^?^Further, the question was objected to as calling for a legal
    conclusion, and Mr. Hecker was instructed to answer the question
    only insofar as he could answer it as an architectural matter.
    Hecker Dep., Ex. 52, at 39.

[^14]: ^?^DIA also errs in suggesting that if an architect or contractor
    fails to comply with the ADA, an owner will always have recourse
    under traditional tort or contract theories. DIA Opposition at
    12-13. If the owner has instructed the architect and contractor to
    design and build a facility that does not comply with the ADA, it is
    unlikely that the owner would have any action against parties that
    have followed his instructions.

[^15]: ^?^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).

[^16]: ^?^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 Wall Days Inn is typical of its control
    over the operations of all of the hotels in its system. *See* U.S.
    Memorandum at 25-34.

[^17]: ^?^Mr. Patel was one of the two original owners of the Willows
    Days Inn. B. Patel Dep., Ex. 56, at 17-18, 27-28.

[^18]: ^?^Although the transcript of his deposition is not yet
    available, Brian Pape, the architect for the Champaign Days Inn,
    testified that he had a copy of the PDSM, and that he referred to it
    for a general review of DIA\'s design standards. He further
    testified that he had also designed other Days Inn hotels, and that
    after DIA reviewed the plans for the Champaign Days Inn, he
    discussed those plans with DIA architect Richard Tischler. Once Mr.
    Pape\'s transcript becomes available, the United States will provide
    it to the court.

[^19]: ^?^DIA has also not disputed the facts concerning the size of the
    company, or its revenues and profits. *See* U.S. Facts ¶¶ 116, 130.
    DIA also fails to dispute the fact that it has received more than
    \$90,000 in total payments from the Wall Days Inn. *See* U.S. Facts
    ¶¶ 128-29; U.S. Memorandum at 36. Finally, DIA has not made any
    argument at all in response to authority cited by the United States
    for the proposition that civil penalties must not be so small as to
    be an acceptable cost of doing business. *See* U.S. Memorandum at
    34-35.