BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

ALISON J. NICHOL, Deputy Chief

ROBERTA STINAR KIRKENDALL, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0986

KATHRYN E. LANDRETH

United States Attorney

District of Nevada

STEVEN MYHRE

Assistant U.S. Attorney

701 E. Bridger Avenue

Suite 800

Las Vegas, Nevada 89101

\(702\) 388-6336

Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROGER A. LONG, [et al.]{.underline}, )

)

Plaintiffs, ) CV-S-97-1570-(RLH)

)

v\. )

)

COAST RESORTS, INC., [et al.]{.underline}, ) UNITED STATES\'

) MEMORANDUM

) AS [AMICUS]{.underline} [CURIAE]{.underline}

) OF POINTS AND

) AUTHORITIES

)

Defendants )

)

#   {#section .unnumbered}

# I. INTRODUCTION

Plaintiffs Roger A. Long and Ronald Ray Smith, individuals who use
wheelchairs, and Disabled Rights Action Committee, a non-profit entity
organized to promote the rights of individuals with disabilities, filed
this action under title III of the Americans with Disabilities Act of
1990, 42 U.S.C. §§ 12181 through 12189 (the \"ADA\" or the \"Act\"). The
plaintiffs assert that the Orleans Hotel and Casino violates title III
because numerous features do not comply with the ADA\'s Standards for
Accessible Design, 28 C.F.R. pt. 36, Appendix A (\"the Standards\"), and
because the facility\'s fixed-route transportation system does not
provide equal access for individuals with disabilities. On August 31,
1998, plaintiffs and defendants filed cross-motions for summary
judgment. On January 12, 1999, this Court issued its summary judgment
ruling. The Court held that several conditions identified by plaintiffs
at the Orleans Hotel and Casino did not rise to the level of violations
of the Standards.[^1] This Court ruled that two conditions did
constitute violations of the Standards \-- counter heights at three
casino bars (Alligator, Crawfish, and Mardi Gras Bars), and doors within
non-accessible guest rooms. The Court ordered relief regarding the bar
counters. However, regarding non-accessible guest room doors, this Court
determined that defendants had substantially complied with the law, and
that no injunctive relief was warranted.

Presently before the Court is Plaintiffs\' Motion for Clarification, or
In The Alternative, for Reconsideration or, In The Alternative, for
Relief From the Judgement \[sic\] that was filed on January 25, 1999.
The United States respectfully submits that the Court\'s January 12,
1999, Judgment and Order, which failed to award injunctive relief to
widen non-accessible guest room doors, is in error and should be
amended.

For private actions, the ADA\'s enforcement provisions mandate that
violations of the Standards and § 303 must be corrected and all elements
covered by the law must be made \"readily accessible to and usable by
individuals with disabilities.\" Congress insisted upon a mandatory
enforcement scheme to ensure that its goal of a fully accessible future
for individuals with disabilities would be accomplished. Moreover,
Congress specifically directed in legislative history that the
requirement to be \"readily accessible\" for hotels includes doors wide
enough for wheelchairs to enter within non-accessible guest rooms. The
significant distinctions between § 303 (public accommodations and
commercial facilities\' new construction responsibilities) and §
302(b)(2)(A)(iv) (public accommodations\' readily achievable barrier
removal responsibilities) will be rendered meaningless if new
construction violations are not required to be made \"readily accessible
to and usable by individuals with disabilities.\" Accordingly, the
United States respectfully requests that the Court grant the
plaintiffs\' motion for Clarification and Reconsideration, grant
plaintiffs\' motion for summary judgment regarding non-accessible guest
room doors, and deny defendants\' motion for summary judgment on that
same issue.

**II. STATUTORY AND REGULATORY FRAMEWORK**

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 [et
seq.]{.underline}, is Congress\' most comprehensive civil rights
legislation since the Civil Rights Act of 1964. Its purposes are \"to
invoke the sweep of congressional authority . . . in order to address
the major areas of discrimination faced day-to-day by people with
disabilities,\" 42 U.S.C. § 12101(b)(4), and to provide \"a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\"\
42 U.S.C. § 12101(b)(1). The ADA\'s coverage is accordingly broad \--
prohibiting discrimination on the basis of disability in employment,
State and local government programs and services, transportation
systems, telecommunications, commercial facilities, and the provision of
goods and services offered to the public by private businesses.

This case concerns title III of the ADA, 42 U.S.C. §§ 12181 through
12189, which prohibits discrimination on the basis of disability in both
public accommodations and commercial facilities.[^2] Title III\'s
general mandate prohibiting discrimination against individuals with
disabilities is set out in section 302(a) of the Act, which provides
that

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

42 U.S.C. § 12182(a). Section 303 of the Act adds another category of
prohibited activity \-- the design and construction of new facilities
that are not \"readily accessible to and usable by individuals with
disabilities\" \-- and extends this prohibition not just to public
accommodations, but to all commercial facilities. [See]{.underline} 42
U.S.C. § 12183.

The Act directs the Attorney General to issue regulations to carry out
the provisions of title III. 42 U.S.C. § 12186(b). Section 303
specifically requires that the regulations include, or incorporate by
reference, architectural accessibility standards. 42 U.S.C. § 12183(a).
The statute provides that these architectural standards must meet or
exceed those developed by another federal agency, the Architectural and
Transportation Barriers Compliance Board (also known as the \"Access
Board\"). The architectural standards promulgated by the Attorney
General must be \"consistent with the minimum guidelines and
requirements issued by\" the Access Board. 42 U.S.C. § 12186(c).[^3]

As required by the statute, the Attorney General timely issued a title
III implementing regulation on July 26, 1991. [See]{.underline} 28
C.F.R. Part 36. The regulation includes architectural standards for
newly constructed public accommodations and commercial facilities,
entitled the Standards for Accessible Design. [See]{.underline} 28
C.F.R. Part 36, Appendix A (\"the Standards\"). Among other things, the
Standards set several requirements for hotel facilities.
[See]{.underline} Standards §§ 4.1.3, 9.

**III. ARGUMENT**

> **A. Congress intended that the ADA\'s new construction provisions
> would create a fully accessible future that would open doors to
> persons with disabilities.**

In enacting the Americans with Disabilities Act, Congress found that
\"individuals with disabilities continually encounter various forms of
discrimination, including. . .the discriminatory effects of
architectural, transportation and communication barriers.\" 42 U.S.C. §
12101(a)(5). To combat this discrimination, Congress created two
separate accessibility requirements for private entities \-- \"readily
achievable barrier removal\" for existing facilities and \"readily
accessible to and usable by individuals with disabilities\" for new
construction facilities. Existing facilities need only provide
accessibility that is \"easily accomplishable and able to be carried out
without much difficulty or expense.\" 42 U.S.C. 12181(9).[^4] The
Attorney General\'s implementing regulations set forth numerous examples
of barrier removal, establish priorities for entities to comply with
these requirements, and provide alternatives when barrier removal is not
readily achievable. 28 C.F.R. §§ 36.304, 36.305.

By contrast, § 303\'s new construction requirements are far more
exacting, and covered entities must comply with the Standards, except in
very limited circumstances that were specifically identified by
Congress. 28 C.F.R. § 36.401.[^5] [See]{.underline} [also Coalition of
Montanans Concerned With Disabilities, Inc. v.]{.underline} [Gallatin
Airport Auth.]{.underline}, 957 F. Supp. 1166, 1168 (D. Mont. 1997)
(\"The overall policy of the ADA is to require relatively few changes to
existing buildings, but to impose extensive design requirements when
buildings are modified or replaced.\").

The Committee reports elaborate on the differences between the two
requirements \--

> the concepts of \"readily achievable\" and \"readily accessible\" are
> sharply distinguishable and represent almost polar opposites in focus.
> The phrase \"readily accessible to and usable by individuals with
> disabilities\" focuses on the person with a disability and addresses
> the degree of ease with which an individual with a disability can
> enter and use a facility; it is access and usability which must be
> \'ready.\' \'Readily achievable,\' on the other hand, focuses on the
> business operator and addresses the degree of ease or difficulty of
> the business operator in removing a barrier; if barrier removal cannot
> be accomplished readily, then it is not required.

S. Rep. No. 101-116, at 65-66 (1989); H.R. Rep. No. 101-485, pt. 2, at
109-110 (1990). Through the ADA\'s accessibility standards, Congress
intended to provide an accessible future for individuals with
disabilities. As the legislative history makes clear,

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

H.R. Rep. 101-485, pt. 3, at 63 (1990) (emphasis added).[^6]

Therefore, Congress set out to achieve its goal of a fully accessible
future through this two-tiered set of accessibility requirements.

> **B. Title III of the ADA requires the Orleans Hotel and Casino to be
> readily accessible to and usable by individuals with disabilities.**

Section 303 of the ADA requires that newly constructed facilities be
\"readily accessible to and usable by individuals with
disabilities[^7]**. . .**in accordance with standards set**\
**forth. . .in regulations issued under this subchapter.\" 42 U.S.C. §
12183(a). The standards referred to \-- the Attorney General\'s
Standards for Accessible Design \-- specifically address hotel
facilities and elements within these facilities that must be designed
and constructed to be accessible to persons with disabilities,
including, among other things, doors within non-accessible guest rooms.
Section 9.4 explicitly provides \"\[d\]oors and doorways designed to
allow passage into and within all sleeping units or other covered units
shall comply with 4.13.5.\" Standards § 9.4. Section 4.13.5 provides, in
pertinent part, \"\[d\]oorways shall have a minimum clear opening of 32
in (815 mm) with the door open 90 degrees. . .\" Standards § 4.13.5.

> **C. Congress specifically identified those features that would make a
> new hotel facility readily accessible to and usable by individuals
> with disabilities.**

While Congress delegated authority to the Attorney General to develop
the new construction accessibility standards, Congress specifically
identified in the Act\'s legislative history certain obvious and
important features to be included therein. In particular, Congress
detailed accessibility features for new hotels. Doors within
[all]{.underline} hotel rooms (including non-accessible guest room
doors) were specifically named by Congress. The House and Senate
Committee Reports state that making a hotel \"readily accessible to and
usable by\" individuals with disabilities --

> includes, but is not limited to, providing full access to the public
> use and common use portions of the hotel; [requiring all doors and
> doorways designed to allow passage]{.underline} [into and within all
> hotel rooms and bathrooms to be]{.underline} [sufficiently wide to
> allow passage by individuals who use]{.underline}
> [wheelchairs]{.underline}; making a percentage of each class of hotel
> rooms fully accessible (e.g., including grab bars in bath and at the
> toilet, accessible counters in bathrooms); audio loops in meeting
> areas; signage; emergency flashing lights or alarms; braille or raised
> letter words and numbers on elevators; and handrails on stairs and
> ramps.

H.R. Rep. No. 101-485, pt. 2, at 118 (1990); S. Rep. No. 101-116, at 70
(1990)(emphasis added).[^8] Representative Morrison explained this
requirement,

> Disabled people are frequently frustrated by the inaccessibility of
> hotel rooms. Very few rooms, even in new hotels, are made fully
> accessible. The rest of the rooms often feature restroom doors too
> narrow to enter. Often, it has been impossible for disabled persons
> who need to fly to a city on short notice to do business, to find a
> usable hotel room. For the same reason, organizations of disabled
> persons are often stymied when trying to find a hotel for a
> conference, because virtually all hotels feature too few rooms to
> accommodate the organizations\' disabled members. For this reason, the
> ADA requires new hotels to meet a number of requirements. Common-use
> areas like lobbies and restaurants must be accessible, a few rooms
> must be fully accessible \-- including grab bars and wheelchair
> turning space in the restroom \-- and audio loops for the use of
> hearing-impaired persons must be available in meeting rooms. In
> addition, [doors to all guestrooms, and doors to the restrooms in all
> guestrooms, must be of a standard wheelchair-accessible width. This is
> a reasonable way to solve the problem. While it might not be
> reasonable to propose that every guestroom in a new hotel be fully
> accessible \-- including restroom grab bars and turning spaces \-- it
> is reasonable to require a percentage of fully accessible rooms and
> simply the appropriate door widths in the other rooms]{.underline}.
> Then, many wheel-chair users and other people with physical
> disabilities will be able to use those guest rooms that are not fully
> accessible. It will be much easier for disabled persons to book usable
> rooms when they don\'t have a lot of time in advance, and also it will
> greatly relieve the difficulties of organizations of disabled persons
> finding hotels to accommodate large groups.

136 Cong. Rec. 646, at H2625 (1990)(statement of Rep. Morrison). Based
upon these clear indications of congressional intent, the Attorney
General did, in fact, incorporate these accessibility requirements into
the Standards, and promulgated the guest room doors requirement as
Standard § 9.4.

> **D. The Orleans Hotel and Casino is a newly constructed facility that
> must comply in full with the Standards, including the requirement for
> non-accessible guest room doors.**

Section 303 of the ADA requires all places of public accommodation and
commercial facilities that are designed and constructed for firs
occupancy after January 26, 1993, and those that are altered after
January 26, 1992, to comply with the accessibility standards for new
construction. 42 U.S.C.\
§ 12183(a)(1). It is undisputed that the Orleans Hotel and Casino
facility is a newly constructed facility within the meaning of title III
of the Act and must comply with the Standards. [Long v. Coast Resorts,
Inc.]{.underline}, CV-S-97-1570 (RLH), Slip op. at 4, 10 (D. Nev. Jan.
12, 1999). The record in this case is clear that the doors and doorways
within non-accessible guest rooms at the Orleans Hotel are only 28
inches wide, and provide only 25 inches of clear width.
[Id.]{.underline} at 4, 14. The ADA Standards require a 32 inch clear
opening width for these doors, and therefore, this feature of the
facility violates the Standards. Indeed, this Court recognized as much,
stating \". . .this may be considered a technical violation of the
Guidelines\[.\]\" [Id.]{.underline} at 16. When a violation of the
ADA\'s Standards and § 303 of the Act has been determined, as in the
instant situation, the only remedy allowed by law in a private action
like this one to enforce title III of the ADA is to enjoin the
responsible parties to make the feature accessible to and usable by
individuals with disabilities. 42 U.S.C. § 12188(a)(2).

> **E. The ADA Makes Clear that Violations of the Standards Must Be Made
> Readily Accessible To and Usable By Individuals With Disabilities.**

Section 308 of the Act specifies the enforcement scheme for violations
of the Americans with Disabilities Act. 42 U.S.C. § 12188. For private
rights of action, § 308(2) provides, in relevant part, \"\[i\]n the case
of violations of. . .section 303(a), injunctive relief [shall include an
order to alter]{.underline} [facilities to make such facilities readily
accessible to and]{.underline} [usable by individuals with
disabilities]{.underline} to the extent required by this title.\" 42
U.S.C. § 12188(2) (emphasis added).[^9] [See also]{.underline} 28 C.F.R.
§ 36.501(b) (injunctive relief available for private suits).^1^[^10]
Congress was clear in its intention that new construction must be made
to comply with the accessibility standards.^1^[^11] The House Report of
the Energy and Commerce Committee notes that \"an order to make a
facility readily accessible to and usable by individuals with
disabilities is mandatory\" under this standard. H.R. Rep. No. 101-485,
pt. 4, at 64 (1990). [See]{.underline} [also]{.underline} 136 Cong. Rec.
E1920 (statement of Rep. Hoyer) (May 22, 1990) (section 308(2)
\"explicitly mandates that injunctive relief must include orders to make
facilities readily accessible to and usable by individuals with
disabilities\"). Accordingly, when a Court finds that the Standards have
been violated \-- and, thereby, that discrimination under § 303(a) has
occurred \-- the statutory language mandates that violations be made
readily accessible to and usable by individuals with
disabilities.^1^[^12] For the Orleans Hotel and Casino, such an order
must include fixing the doors within non-accessible guest rooms.

This Court also suggests that the costs estimated for widening the doors
within non-accessible guest rooms at the Orleans Hotel \-- \$800,000 \--
mitigate against requiring such changes. [Long]{.underline}, Slip op.,
at 16. However, there is no costs or \"undue burden\" defense^1^[^13]
applicable to the new construction requirements of the Act.
[See]{.underline} [Kinney v. Yerusalim]{.underline}, 9 F.3d 1067, 1074
(3d Cir. 1993). The [Kinney]{.underline} court explained regarding title
II new construction and alteration requirements,

> \"\[a\]llowance of an undue burden defense for existing facilities
> serves as recognition that modification of such facilities may impose
> extraordinary costs. New construction and alterations, however,
> present an immediate opportunity to provide full accessibility. . .
> .Congress acknowledged the existence of an undue burden defense for
> existing facilities, but clearly warned, \'\[n\]o other limitation
> should be implied in other areas.\'

[Id.]{.underline} [See]{.underline} [also]{.underline} H.R. Rep. No.
101-485, pt. 3, at 50 (1990).

In order to eradicate discrimination against individuals with
disabilities and thereby achieve Congress\' goals, the new construction
standards must be enforced in their entirety. Not to do so, would be to
effectively eliminate § 303 new construction obligations from the
statute. By failing to require remedies for proven violations of the
Standards, \"readily accessible to and usable by individuals with
disabilities\" will be replaced by the lesser \"readily achievable\"
standard. And Congress\' goal of a fully accessible future will be
eviscerated.

# IV. CONCLUSION

For the foregoing reasons, the United States respectfully requests that
Plaintiffs\' Motion for Clarification, or In The Alternative,
Reconsideration, or in the Alternative, Relief From Judgement \[sic\] be
granted, Plaintiffs\' Summary Judgment Motion with respect to widening
doors in non-accessible guest rooms be granted, and Defendants\' Motion
for Summary Judgment on this same issue be denied.

Respectfully submitted,

KATHRYN E. LANDRETH BILL LANN LEE

United States Attorney Acting Assistant Attorney

District of Nevada General

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal

Counsel

ALLISON J. NICHOL, Deputy Chief

Disability Rights Section

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

STEVEN MYHRE ROBERTA S. KIRKENDALL

Assistant U.S. Attorney Attorney

701 E. Bridger Avenue U.S. Department of Justice

Suite 800 Civil Rights Division

Las Vegas, Nevada 89101 Disability Rights Section

\(702\) 388-6336 Post Office Box 66738

Washington, D.C. 20035-6738

Dated: March 1, 1999 (202) 307-0986

[^1]: ^1^The United States takes no position on the Court\'s rulings
    that certain features of the facility do not violate the Standards
    because we lack sufficient factual information upon which to form an
    opinion.

[^2]: ^2\ 2^The statute defines \"public accommodations\" to be entities
    (1) whose operations affect commerce, and (2) that fall into one or
    more of twelve categories of public accommodations set out in the
    Act. [See]{.underline} 42 U.S.C. § 12181(7). The Orleans Hotel and
    Casino is a \"public accommodation,\" as it falls within at least
    two of the statute\'s categories of public accommodation: it is a
    \"hotel, motel, or other place of lodging,\" within the meaning of §
    301(7)(A), a \"restaurant, bar, or other establishment serving food
    or drink,\" § 301(7)(B), a \"motion picture house, theater, concert
    hall, stadium, or other place of exhibition or entertainment,\" §
    301(7)(C), and it is also an \"auditorium, convention center,
    lecture hall, or other place of public gathering,\" within the
    meaning of § 301(7)(D). [See]{.underline} 42 U.S.C.\
    §§ 12181(7)(A), (B), (C), (D).

[^3]: ^3\ 3^The Access Board is composed of twenty-four members,eleven
    of whom are representatives of various federal agencies, and
    thirteen of whom are private citizens appointed to the Board by the
    president. 29 U.S.C.A. § 792(a)(1) (West Supp. 1996). The Attorney
    General, as head of the Department of Justice, is one of the eleven
    federal members of the Board. 29 U.S.C.A. § 792(a)(1)(B) (West Supp.
    1996).

[^4]: ^4^ ^4^\"Readily achievable barrier removal\" is essentially a
    financial resources matter. Factors include --

    \(A\) The nature and cost of the action needed under this Act;

    \(B\) The overall financial resources of the facility or facilities
    involved in the action; the number of persons employed at such
    facility; the effect on expenses and resources, or the impact
    otherwise of such action upon the operation of the facility;

    \(C\) the overall financial resources of the covered entity; the
    overall size of the business of a covered entity with respect to the
    number of its employees; the number, type, and location of its
    facilities; and

    \(D\) the type of operation or operations of the covered entity,
    including the composition, structure, and functions of the workforce
    of such entity; the geographic separateness, administrative, or
    fiscal relationship of the facility or facilities in question to the
    covered entity.

    42 U.S.C. § 12181(9). Given the vast financial resources of the
    defendants here, it is unlikely that many accessibility changes
    would be found to be not readily achievable.

[^5]: ^5^ ^5^Congress provided only one defense to violations of the
    ADA\
    Standards \-- \"structural impracticability.\" The Department\'s
    title III regulations explain \"full compliance \[with the ADA
    Standards\] will be considered structurally impracticable only in
    those rare circumstances when the unique characteristics of terrain
    prevent the incorporation of accessibility features.\" 28 C.F.R. §
    36.401(c)(1). [See]{.underline} [also]{.underline} H.R. Rep. No.
    101-485, pt. 2, at 120-121 (\"\'structurally impracticable\' is a
    narrow exception that will apply only in rare and unusual
    circumstances\"). Clearly, such a defense is not applicable here,
    for doors within non-accessible guest rooms.

[^6]: ^6^ ^6^Congress recognized \"it is always less expensive to build
    something new in an accessible manner that it is to retrofit an
    existing facility to make it accessible.\" H.R. Rep. No. 101-485,

    pt. 2, at 119 (1990).

[^7]: ^7^ ^7^Congress explained that readily accessible \"is intended to
    enable people with disabilities (including mobility, sensory, and
    cognitive impairments) to get to, enter and use a facility. While
    the term does not necessarily require the accessibility of every
    part of every area of a facility, the term contemplates a high
    degree of convenient accessibility, entailing accessibility of
    parking areas, accessible routes to and from the facility,
    accessible entrances, usable bathrooms and water fountains,
    accessibility of common use areas, and access to the goods,
    services, programs, facilities, accommodations and work areas
    available at the facility. H.R. Rep. No. 101-485, pt. 2, at 117-118
    (1990).

[^8]: ^8^Indeed, even the hotel industry\'s trade organization, the
    American Hotel and Motel Association, testified in support of the
    accessible doors requirement within non-accessible guest rooms for
    new facilities, stating \"\[t\]he term \"readily accessible\" has
    another implication for the lodging industry when the term is
    applied to guest rooms. . . .when it \[the Committee Report\] uses a
    hotel as an example, it speaks of all doors and doorways being
    designed to allow passage into and within all hotel rooms. If that
    is intended as a specific requirement, that all doorways in newly
    constructed hotels be of sufficient width to allow wheelchair
    passage, we have no disagreement with that.\" [Americans with
    Disabilities Act of 1989: Hearings Before the]{.underline} [House
    Comm. On the Judiciary and the House Subcomm. On Civil
    and]{.underline} [Constitutional Rights]{.underline}, 101st Cong.
    140-141 (1989)(Statement of the American Hotel & Motel Association).

[^9]: ^9^ ^9^The only remedy available to vindicate the interests of
    individuals with disabilities who file a private lawsuit under § 303
    is injunctive relief. 42 U.S.C. § 12188. Courts typically have
    discretion regarding whether to issue an injunction. Congress may,
    however, \"intervene and guide or control the exercise of the
    court\' discretion.\" [Weinberger v. Romero-Barcelo]{.underline},
    456 U.S. 305, 313 (1982). [See]{.underline} [also]{.underline} [TVA
    v. Hill]{.underline}, 437 U.S. 153, 173 (1978) (holding Congress
    foreclosed usual discretion possessed by court of equity in
    Endangered Species Act, 16 U.S.C. § 1531 [et seq.]{.underline}).
    This is particularly appropriate where, as here, no monetary relief
    is available to plaintiffs. Here, Congress has explicitly stated in
    the language of the statute that an injunction shall be issued to
    remedy violations of § 303. Accordingly, it is axiomatic that an
    injunction should be issued requiring the Orleans to make doors
    within non-accessible guest rooms readily accessible to and usable
    by individuals with disabilities.

[^10]: ^0^ ^10^The few courts that have considered violations of the new
    construction standards have followed this statutory directive.
    [See]{.underline} [Independent Living Resources v. Oregon Arena
    Corp.]{.underline}, 1 F. Supp. 1124 (D. Ore. 1998) (owners required
    to make modifications to conform with Standards); [Independent
    Living Resources v.]{.underline} [Oregon Arena
    Corp.]{.underline},982 F. Supp. 698, 713 (D. Ore. 1997) (court does
    not have discretion to waive requirement of Standards); [Coalition
    of Montanans Concerned With Disabilities, Inc. v.]{.underline}
    [Gallatin Airport Auth.]{.underline}, 957 F. Supp. 1166, 1171 (D.
    Mont. 1997) (defendants enjoined to redesign and construct airport
    terminal, including elevators); [Small v. Dellis]{.underline}, No.
    Civ. AMD 96-3190, 1997 WL 853515 (D. Md. Dec. 18, 1997) (ADA
    violated when newly constructed restrooms not readily accessible).
    [Cf.]{.underline} [Kinney v. Yerusalim]{.underline}, 9 F.3d 1067
    (3rd Cir. 1993) (City ordered to install curb ramps as required by
    Standards); [Deck v. City of Toledo]{.underline}, 29 F. Supp. 2d 431
    (N.D. Oh. 1998) (same).

[^11]: ^1\ 11^When, as here, a statutory provision is clear and
    unambiguous, courts shall give effect to such provision.
    [See]{.underline} [Chevron U.S.A. v. Natural Resources Defense
    Council, Inc.]{.underline}, 467 U.S. 837, 842-845 (1984); [Mesa
    Verde Constr. Co. v. Northern]{.underline} [California Dst. Council
    of Laborers]{.underline}, 861 F.2d 1124, 1131 n.5 (\"If the intent
    of Congress is clear, that is the end of the matter; for the court.
    . ., must give effect to the unambiguously expressed intent of
    Congress.\").

[^12]: ^2^ ^12^This Court stated in the January 12, 1999 order that the
    Orleans \"has made a good faith effort to comply with this provision
    of the regulation and guidelines.\" Slip op. at 16. However,
    defendants \"good faith\" in attempting to comply with the statute
    is not an appropriate consideration in this instance for determining
    whether there has been compliance mandated by the law. \"Good
    faith\" is to be considered only in cases brought by the Attorney
    General, and where civil penalties are at issue. 42 U.S.C. §
    12188(b)(5). Section 308(b) sets out the enforcement scheme for
    cases brought by the Attorney General. If the Attorney General
    brings a pattern or practice case or a case under the \"general
    public importance\" provisions, she has the authority to seek a
    civil penalty to vindicate the public interest. In those instances,
    a court shall consider \"any good faith effort or attempt to comply
    with this Act by the entity.\" 42 U.S.C. § 12188(b)(5). Any \"good
    faith\" the Orleans can demonstrate in complying with the ADA is
    simply not relevant to whether injunctive relief is proper.

[^13]: ^313^The \"undue burden\" defense, which is available under title
    II\'s program access requirements for existing facilities and title
    III\'s auxiliary aids requirements, is analogous to \"readily
    achievable.\" [See]{.underline} 28 C.F.R. §§ 35.150(a)(3); 36.202
    (definition of undue burden). [See]{.underline} [also]{.underline}
    42 U.S.C. § 12111(10) (definition of undue hardship).