UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA
                                                              FILED
                                                           DEC 20 1996
PARALYZED VETERANS OF           )                   Clerk, U.S. District Court
AMERICA, et al.,                )                      District of Columbia
                                )                           (Stamp)
            Plaintiffs,         )
                                )
        v.                      ) Civ.No. 96-1354 (TFH)
                                )
ELLERBE BECKET ARCHITECTS       )
& ENGINEERS, P.C., et al.,      )
                                )
            Defendants.         )
                                MEMORANDUM OPINION
        In his treatise on the young American Republic, Democracy in America,
Alexis de Tocqueville observed that "there is hardly a political question in
the United States which does not sooner or later turn into a judicial one."1
The French writer could easily have had in mind the present case, in which
plaintiffs have sued to enforce the requirements of the Americans with
Disabilities Act, 42 U.S.C.  12101 et seq.2  Congress has assigned to the
Attorney General the duty and power to interpret that statute and to set
standards for enforcement and compliance. 42 U.S.C.  12186(b). Unfortunately,
while the Department of Justice has issued broad Standards for Accessible
Design, it has not seen fit to step up to its statutorily mandated role by
providing concrete guidance for architects and builders. Plaintiffs have asked
the Court to enforce demanding, and controversial, design requirements that
the Department of Justice has never
_____________________
        1       Democracy in America, vol. 1, part 2, chapter 8.
        2       The ADA authorizes this private right of action at 42 U.S.C.
                 12188(a). Plaintiffs have also sued pursuant to the D.C.
                Human Rights Act, at D.C. Code  I-2519. As the Court will
                describe below, that statute's requirements mirror those of
                the ADA; therefore the Court's analysis will focus on the
                federal law.
01-04572
championed in any court or in any rulemaking procedure, and which the
Department has declined to support in the present case, despite several
invitations from the Court to do so. Therefore, the Court is forced to step in
and decide issues which would have been far better left to the politicians
in the Executive and Legislative branches.
        This case concerns the design and construction of a new arena, slated
to be called the "MCI Center," which is being built in downtown Washington
D.C., by defendants. The arena will be the new home of two professional sports
franchises, the Washington Capitals hockey team and the soon-to-be renamed3
Washington Bullets basketball team. The arena will also host concerts, college
sporting contests, and other entertainment events. Plaintiffs filed this suit
on June 14, 1996, claiming that the seating bowl, as designed, fails to
provide the number of "accessible" wheelchair locations required by the ADA.
        The present litigation has raised a number of difficult issues,
particularly since the Justice Department has declined to lend its expertise.
The case is all the more difficult because the Court finds that defendants
have acted in good faith. The evidence presented shows defendants' desire to
construct an arena which meets the needs of wheelchair patrons and which
provides the best possible sightlines to all patrons, ambulatory and
nonambulatory. The management of the USAIR Arena, which currently hosts most
of the events that will switch to the MCI Center next year, has consistently
made every effort to accommodate these patrons, and the management of the new
arena has voiced its commitment to continuing these efforts. Defendants have
designed an arena which offers more wheelchair spaces with enhanced
sightlines, and more choices of location, than
_____________________
        3       The team is scheduled to be renamed the Washington Wizards in
                time for the 1997-98 season.
                                        2
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any other constructed to this date. However, the ambiguity of the ADA
regulations, and the lack of guidance and participation by the Justice
Department in these matters, has created an unfortunate situation in which
defendants can act in good faith and still fail to comply with the law. It is
a sad predicament,4 but it is nonetheless what the Court and the parties face
today.
      I. Statutory Background and the Court's October 21, 1996 Decision
                   A. The Americans With Disabilities Act
        The Americans with Disabilities Act was enacted in 1990 to address
what Congress found to be a "serious and pervasive social problem" of
"discrimination against individuals with disabilities" in public
accommodations, employment, transportation, and other areas of public life.
42 U.S.C.  12101(a). In passing the law, Congress expressly found that
"individuals with disabilities continually encounter various forms of
discrimination," including "the discriminatory effects of architectural,
transportation and communication barriers" and "relegation to lesser services,
programs, [and] activities." Id.
       The ADA was passed "to provide a clear and comprehensive national
mandate for the elimination of discrimination against persons with
disabilities." 42 U.S.C.  12101(b). Title III of the Act bans discrimination
against persons with disabilities by owners or operators of public
_____________________
        4       In considering the complications of civil legislation, Thomas
                Hobbes theorized that, "The written laws, if they be short,
                are easily misinterpreted; if long they be more obscure by the
                diverse significations of many words." Leviathan
                P.ILLEGIBLEII, ch.26. The Justice Department in the present
                case has foolishly decided to accept the former fate rather
                than risk the latter, a few more words may have clarified some
                of the ADA's ambiguities and delivered the parties--and the
                Court--from the present interpretive quicksand onto more solid
                ground.
                                        3
01-04574
accommodations. It provides that:
        No 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.
42 U.S.C.  12182(a).
        The ADA imposes different requirements on "existing facilities" than
it does on "new construction." For existing facilities, the Act requires the
removal of "architectural barriers... where such removal is readily
achievable," and permits the use of "alternative methods" where removal of
architectural barriers is not readily achievable. 42 U.S.C.  12182(b)(2)(v).
By contrast, in "new construction"--any facility designed and constructed for
"first occupancy" after January 26, 1993--the Act censures the "failure to
design and construct facilities...that are readily accessible to and usable by
individuals with disabilities." 42 U.S.C.  12183(a)(1). This command to build
accessible facilities is excepted only if meeting the requirements of the Act
would be "structurally impracticable." Id. See also 28 C.F.R.  36.401(c)
(structural impracticability means "those rare circumstances where the unique
characteristics of the terrain prevent the incorporation of accessibility
features.")5
                B. Interpretive Role of the Justice Department
        The ADA itself sets out only broad principles for the elimination of
discrimination against persons with disabilities. Congress granted primary
enforcement authority to the Attorney
_____________________
        5       There is no dispute in this case that the MCI Center is
                designed for "first occupancy" after January 26, 1993 and is
                therefore subject to the "new construction" requirements of
                the statute. Nor have defendants argued that it is
                "structurally impracticable" to provide a line of sight over
                standing spectators at all of the wheelchair locations in the
                arena.
                                        4
01-04575
General and also empowered her to issue more specific regulations for
compliance with Titles II and III of the Act.6 42 U.S.C.  12186(b). Congress
also directed the Architectural and Transportation Barriers Compliance Board
("the Board") to issue "minimum guidelines" for Titles II and III 42 U.S.C. 
12204(a). The Board's provisions--the ADA Accessibility Guidelines (ADAAG)--do
not have any binding effect on their own, but instead help shape the Attorney
General's regulations, which must be "consistent" with the ADAAG.7 42 U.S.C. 
12186(c). The Justice Department's Standards for Accessible Design (JDSAD),
codified at 28 C.F.R. Pt. 36, App. A, are very consistent, indeed, they are
exactly the same as the ADAAG.
                         C. The Court's Earlier Ruling
        On October 21, 1996, the Court ruled that JDSAD s 433.3 requires an
 "enhanced" line of sight--a view of the performance floor over persons in
front of them when those persons rise from their seats to stand--for
wheelchair patrons at sports and concert venues. Historically, the law has not
required these sightlines. Pre-ADA accessibility standards, such as the
Minimum Guidelines Requirements for Accessibility Design, did not require
enhanced sightlines, even though they contained essentially the same language
as the ADAAG and the JDSAD.
_____________________
        6       Title III contains the sections of the ADA relevant to the
                present case. The interpretation of other titles of the Act
                has been delegated to the Department of Transportation, the
                FCC and the EEOC. See e.g., 55 Fed. Reg. 50239 (1990).
        7       The Board played a similar role in the implementation of the
                Architectural Barriers Act of 1968. Pursuant to the 1978
                amendments to that statute, the Board in 1982 enacted minimum
                guidelines (the Minimum Guidelines Requirements for Accessible
                Design), which the four federal agencies charged with
                enforcing compliance then used to develop the Uniform Federal
                Accessibility Standards in 1984.
                                        5
01-04576
Furthermore, the Access Board has declined to address the issue of lines of
sight over standing spectators. The Board twice solicited comments on the
issue, but each time it deferred decision until a later date.
        However, the interpretation of the Department of Justice, and not the
historical requirements or even the interpretation of the Access Board, shapes
the meaning of the regulation. The Court denied defendants' motion for summary
judgment and held as a matter of law that the ADA, through JDSAD  4.33.3,
requires that wheelchair-accessible spaces be dispersed throughout the seating
bowl and that substantially all wheelchair locations provide an "enhanced"
line of sight over standing spectators, if spectators can be expected to stand
during the event. 8
                            D. The Present Trial
       After the October 21 ruling, the only issues left for trial concern the
compliance of the MCI Center with the ADA standards. There are few factual
issues to consider. For the most part, the parties agree on what sightlines
various seats provide; they disagree primarily on the legal issues of
compliance. Specifically, the parties disagree on the number of seats that
must provide these "enhanced" sightlines, on the required dispersal of those
seats, on whether operational measures can be employed to create satisfactory
sightlines, and on whether spaces in luxury suites can be counted towards the
required number of enhanced sightline seats.
_____________________
        8       The Court issued a bench ruling stating its decision and will
                be issuing a written opinion on those issues; therefore it
                will not revisit them here. Furthermore, although the parties
                put on evidence at trial which is relevant to the issues of
                regulatory history and statutory interpretation, the Court
                will not deal with that evidence in this opinion.
                                        6
01-04577
                            II. Factual Findings
                               A. The Parties
        The primary plaintiff in the case is Paralyzed Veterans of America
("PVA"), a nationwide membership organization, chartered by Congress just
after World War II. See 36 U.S.C.  1151 et seq. It has 34 chapters with
approximately 17,000 members nationwide, including two chapters with
approximately 345 members in the Washington, D.C., metropolitan area. Almost
all PVA members are wheelchair users. Some PVA members in the Washington,
D.C., metropolitan area attend sporting contests and other entertainment
events.
        In addition, there are four individual plaintiffs. Fred Cowell,
Geoffrey Hopkins, Andrew Krieger, and Lee Page are each a wheelchair user and
a member, employee, or both, of the PVA. Each of the four has attended several
sporting events or concerts at various arenas in the recent past, and each is
interested in attending events at the MCI Center. These plaintiffs have shown
that their enjoyment of an event could be hampered if the seating bowl is
built as currently designed.
        The case originally had eight defendants. Two of these defendants -
Ellerbe Becket Architects & Engineers, P.C. and Ellerbe Becket, Inc., were
dismissed from the case pursuant to this Court's decision on July 29, 1996. A
third defendant, D.C. Arena Associates, Inc., was dismissed August 22, 1996.
        The remaining five defendants are D.C. Arena, L.P., Washington Sports
& Entertainment, Inc., Centre Group, L.P., Abe Pollin Sports, Inc., and Abe
Pollin. Each defendant is a person or an entity that will "own" or "operate"
the MCI Center, within the meaning of the ADA. 42 U.S.C.  12182(a). The
ground lease for the site permits DCALP to operate the building for 30 years.
                                        7
01-04578
with the possibility of two ten year extensions.
                        B. The Structural Design of MCI Center
        The MCI Center is designed as a "multi-purpose" facility, which will
include a seating bowl for sporting and entertainment events, offices for
arena and team officials, and a large commercial area. Designs for the arena
were chosen in January of 1995, and ground was broken in October of that year.
Since that time, construction has proceeded rapidly, and much of the structure
for the upper seating bowl is in place. Despite this rapid construction
schedule, defendants have on several occasions represented to the Court that
they could, even at this late date, implement changes in the seating bowl to
comply with ADA regulations.
        The arena will host a range of activities, including basketball and
hockey games, concerts, and other entertainment events. To accommodate this
variety of attractions, the spectator seating bowl is designed to be
reconfigured for different events. At this date, there are four such designs:
the "Basketball", "Hockey", "360 Stage" and "270 Stage" configurations. The
arena is designed to have three seating levels for the general public: the
lower bowl, the Club level, and the upper bowl. The expected general seating
capacity for these arrangements is 17,989 for basketball, 17,240 for hockey,
18,468 for the 360 stage, and 16,249 for the 270 stage. The general seating
levels provide for 189 wheelchair spaces in the basketball configuration, for
182 in hockey, for 213 in the 360 stage, and for 165 in the 270 stage
wheelchair seating locations. There are wheelchair spaces provided at every
level of the seating bowl.
        There are also 109 suites on two levels, with a total seating capacity
of approximately
                                        8
01-04579
1,600 persons.9  Each of these suites is designed with a wheelchair space (one
suite contains two spaces) in the second row of seating. The suites will be
privately leased as entire entities, for terms of 3, 5, 7, or 10 years, at a
cost of approximately $100,000 to $175,000 per year. Most suites have been
sold to corporations. There is not currently any plan to make seating in
suites available for purchase by the general public.
        It is reasonable to expect that at many sporting and entertainment
events to be held at the MCI Center, spectators who are able will stand during
particularly interesting, exciting, or significant portions of the event.10
The parties have stipulated to this expectation and also supported it with
testimony at trial. Such standing will block the view of many wheelchair
patrons, who will be unable to see over the ambulatory spectators.
       It is undisputed that several seats in each configuration already
provide such an enhanced line of sight over standing spectators. There are 64
such seats in the lower bowl (38 in the 270 stage configuration),11 mostly in
the two endzones, and 7 in the Club level (six in hockey, three in
_____________________
     9   Unlike the general bowl areas, the suites have flexible seating
         capacities. Each suite consists of a seating area and a "living room"
         area, and each is configured to seat at least twelve persons.
         However, most can accommodate up to 24 persons, depending on the
         wishes of the suite's occupants. Therefore, the total seating
         capacity of the suites depends in large part on the requirements of
         the individual suite lessors.
     10  This is true only of the general seating bowl, however. In the
         suites, it is not likely that spectators will stand and block the
         view of wheelchair patrons, since the atmosphere in suites is
         different from that of the general seating bowl. The suites are more
         akin to private viewing areas or clubs, where a combination of the
         different atmosphere and more comity will probably eliminate the
         problem of obstructed sightlines for wheelchair patrons.
     11  This number is not fixed. It assumes that defendants will be able to
         seat 52 wheelchair patrons in the end zone areas. In order to do
         this, defendants would have to seat eight companions in folding
         chairs, should all 52 wheelchair seats be
                                        9
01-04580
270 stage). Therefore, the basketball and 360 stage configurations provide 71
seats which already comply with ADA regulations, and the hockey and 270 stage
provide 70 and 41 such seats, respectively. Most of the sightline skirmishing
in this litigation has concerned the compliance of 72 upper bowl seats and the
counting of the 110 seats in the luxury suites.
        Defendants have proposed two policy-oriented solutions to the
sightline problem in the upper bowl seats. First, they propose to withhold
from sale those seats in front of wheelchair patrons. This measure was used at
the Olympic Aquatic Center to bring some wheelchair spaces into ADA
compliance. Defendants have proposed that they would cover or remove the
unsold seats to prevent ambulatory patrons from moving down into them once
play has begun. Plaintiffs' expert conceded at trial that this policy is akin
to a design solution to the sightline problem, and is not merely an
operational measure.
        Second, defendants propose to implement an "education and enforcement"
policy which would discourage patrons seated in front of wheelchair patrons
from standing up during play. Under this policy, there would be signs posted
which described the policy, and employees would be stationed to remind
ambulatory patrons not to stand. Defendants have successfully implemented
operational policies in the past, including a "no-smoking" policy and a policy
against standing in aisles during play at hockey games. Defendants have not
yet finalized their proposals, but the current plan is to implement the
"no-sell" policy at concerts and shows and to implement the "no stand" policy
at sporting contests.
        There are also issues concerning the dispersal of wheelchair spaces,
particularly in the
__________________
        sold. For purposes of this opinion, the Court will assume that the
        maximum number of wheelchair seats will be provided, as even the
        plaintiffs have suggested.
lower bowl. Even defendants' own experts concede that the seats in the lower
bowl which offer enhanced sightlines are not well dispersed. Most of
theseseats are ghettoized in the two end zones, with only a few in the front
rows and almost none in the center court sections. Those center court
locations are among the most popular and generally the more expensive, seating
locations. In the upper bowl, wheelchair seats are dispersed throughout all
the sections, offering a wide range of seating options.
                C. Architectural Issues in the Design of Wheelchair Seating
        The design of wheelchair seating is a complex architectural process,
particularly in arenas, where space is more limited and angles are more steep.
This is especially true for the design of the MCI Center, which is more
innovative and complex than most arenas. However, even for the MCI Center, it
is possible and feasible to design wheelchair locations that meet the
triumvirate of ADA accessibility requirements: integration, dispersal, and
enhanced sightlines. While a design cannot fully pursue each of the three
features-perfect integration is incompatible with enhanced sightlines, for
example--architects need not sacrifice one goal to achieve another, as
defendants argue. Instead, a design can substantially meet all three goals,
combining enhanced sightlines with substantial integration and adequate
dispersal. Wheelchair users would not choose to forego enhanced sightlines in
order to achieve better integration or dispersal,12 and a new arena like the
_____________________
        12      Defendants cited studies which recommend that arenas and
                stadia seek better integration while sacrificing sightlines in
                a certain percentage of wheelchair locations (usually
                30%-50%), in order to give wheelchair users this choice. The
                Department of Justice has not adopted these proposals, and
                there is no evidence that wheelchair patrons would accept
                seating in which their view of the game is blocked, even if
                such seating provided excellent integration with other
                spectators.
                                        11
01-04582
MCI Center can be designed so that they do not have to.
                D. Justice Department Development of ADA Requirements
        The ADA requires facilities that are "readily accessible to and usable
by" persons with disabilities. 42 U.S.C. S12183(a). The Department of Justice
Standards for Accessible Design have generally defined "accessible" and have
provided a broad guide to assessing compliance with the ADA. JDSAD 4.13(19)
provides a chart which details how many wheelchair accessible seats an arena
must provide. For an arena such as the MCI Center, which seats more than 500
persons, this standard requires that there be six seats, plus one for every
hundred total seats in excess of five hundred. This is commonly referred to as
the "one percent plus one" requirement familiar to architects and builders.
There is evidence that the Justice Department may lower this requirement to
one-half percent plus one, but that change has not yet been
implemented.
        Other standards are not as mechanical, clear, or useful as 4.13(19).
The most important provision for this litigation is 4.33.3, which reads in
relevant parts:
                        Placement of Wheelchair Locations
        Wheelchair areas shall be an integral part of any fixed seating plan
        and shall be provided so as to provide people with physical
        disabilities a choice of admission prices and lines of sight
        comparable to those members of the general public...When the seating
        capacity exceeds 300, wheelchair spaces shall be provided in more than
        one location. Readily removable seats may be installed in the
        wheelchair spaces when the spaces are not required to accommodate
        wheelchair users.
This standard raises and discusses the three technical components of
"accessibility" in wheelchair seating: sightlines, integration, and dispersal.
Even though 4.33.3 raises these requirements, however, it provides no firm
guidance for gauging compliance. The only direction for courts and
                                        12
01-04583
parties comes from the actions and interpretations of the Department of
Justice.
        The Justice Department has interpreted its regulation, but it has done
so informally, eschewing rulemaking procedures. The Department has not
established a single, clear interpretation, but has instead left a nebulous
record, comprised mostly of informal documents, press releases, announcements,
and correspondence. This has not provided clear guidance to architects, who
have been left with at best an educated guess as to the design features
required to comply with ADA regulations.
        The Justice Department decided against a rulemaking process, which
would have left a concrete, workable record from which to discern a standard.
It has further declined invitations to participate in the present litigation
to explain its interpretation. Finally, neither party called witnesses who
could shed anything brighter than speculative light on the interpretation of
4.33.3. Therefore, the only evidence before the Court is the hazy tapestry of
action and inaction which the Justice Department has woven since Title III
took effect in 1992.
        Prior to 1993, the Department did not officially insist on enhanced
lines of sight, indeed, in one case the Deputy Chief of the Public Access
Section explicitly told Major League Baseball owners that the ADA did not
require enhanced sightlines. Since that time, the Department has discussed the
issues of sightlines and dispersal, but the Technical Assistance Manual
Supplement of 1994 and the May 1996 "Accessible Stadiums" release are the only
public statements to suggest a requirement of enhanced sightlines. These
remain the most current statements of the Justice Department's interpretation
of these issues, however, and the Court held on October 21 that they state the
interpretation which binds the parties.
                                        13
01-04584
        However, the Justice Department has not established a clear record of
exactly what its interpretation requires. With the exception of a single,
general diagram in the 1996 "Accessible Stadiums" release, the Department has
not defined or documented the technical specifications for compliance, even
though, as defendants demonstated at trial, there are several possible methods
of measuring sightlines.13 The application of the theorerical issues of
sightlines to the design of an actual arena is a complex problem; this problem
has been exacerbated by lack of concrete, technical standards for architects
to follow.14
        To further complicate matters, the Department of Justice has not
insisted on full compliance with the enhanced sightline provision. The 1996
"Accessible Stadiums"release requires only that "all or substantially all"
seats provide enhanced sightlines. In practice, the Justice Department has
never required more than substantial compliance. The Justice Department has
never maintained an enforcement action against an arena or stadium under
design or construction, although several that have been designed since 1994
have failed to comply even substantially with the goals stated by the TAM. The
Department even declined to enforce its standards against the MCI Center in
the present litigation.
_____________________
   13  Among the variables to consider are the eye height of the wheelchair
       user, the height of standing spectators, the depth within the tread
       row of the spectator and wheelchair user, and the focal point on the
       floor from which measurements are calculated. Use of a different
       figure, called an "androgyne" within the design industry, can mandate
       different architectural measurements to provide enhanced sightlines.
       This flexibility was demonstrated in the analysis of the Club Level
       seating in the Atlanta Olympic Stadium; use of differently sized
       androgynes (each within the accepted range of sizes) produced
       different measurements of sightlines.
   14  While some standards may exist, they are not readily available. There
       is evidence that the Department may undertake a study to promulgate
                                              14
01-04585
        The Justice Department has only commented publicly on these issues in
connection with its "settlement" on the Atlanta Olympic facilities, and these
stadia demonstrate the flexible approach of the Department's standards. In an
official press release dated May 15, 1996, the Justice Department called the
Atlanta Olympic Stadium "the most accessible stadium in the world" and held it
up as "the model for all future stadiums." That stadium offers at best
substantial compliance with the ideals expressed in the 1994 TAM and 1996
Accessible Stadiums release. The lower deck provides dispersed seating with
enhanced lines of sight, but the upper deck, which contains 15,000 seats,
offers neither--it has zero wheelchair spaces with lines of sight over
standing spectators. In addition, the wheelchair spaces on the Club level
provide clear lines of sight only for the tallest of wheelchair users. The
Atlanta Olympic Stadium operators achieved substantial compliance, but they
did so in part by masking the deficiencies in the cheapest seats and offering
wheelchair patrons seating in the fully compliant lower deck for the price of
an upper deck ticket. Similarly, the Olympic Aquatic Center seating was not
compliant, but it became so when wheelchair patrons were relocated to better
seats and when certain seats in front of those patrons were left unsold.15
                                III. Conclusions of Law
        The Court must examine the design of the MCI Center to determine
whether it is in compliance with the ADA as interpreted by the Justice
Department. In order to do so, the Court
_________________
       such specifications, but it has not yet published any results.
       Furthermore, while technical specifications may have been decided upon
       in connection with the Atlanta Olympic facilities, these specifications
       were part of confidential settlement negotiations and are therefore of
       no help to the general population of architects
   15  In the Aquatic Center, operational measures were employed only in the
       "temporary" seating areas. This fact is not relevant, however, since
       the Department of Justice recognized no difference in the
       requirements of compliance between the permanent and temporary
       seating.
                                        15
01-04586
must determine what the Justice Department interpretations require, and must
also apply those requirements to the proposed designs for the arena. The Court
appreciates the need to give guidance to the parties, so that a compliant
arena may eventually be designed and built. However, it does not wish to
become the de facto supervisor of the design-build team for this project.
Therefore, while the Court will make the conclusions of law to give the
parties necessary guidance, it will not impose or suggest changes. Instead, it
remains the parties' responsibility to arrive at solutions to the current
compliance problems.
                                A. Applicable Standard
        The ADA requires that new facilities be "readily accessible to and
usable by" persons with disabilities, 42 U.S.C.  12183(a). The Justice
Department has issued its Standards for Accessible Design, which describe,
among other things, the features of a "readily accessible" facility. As the
Court held in its October 21, 1996, opinion, JDSAD  4.33.3 requires that
wheelchair seating have a line of sight over standing spectators in a new
construction which hosts events where spectators may be expected to stand.
Pursuant to that same regulation, "readily accessible" wheelchair seating must
also be reasonably integrated and dispersed throughout the seating bowl. Since
spectators can be expected to stand at MCI Center events, the arena must, in
light of the Court's earlier ruling, provide seating with "enhanced"
sightlines over standing spectators.16
_____________________
     16   Defendants argue that enhanced sightlines provide wheelchair users
          with a superior view, since even ambulatory spectators lose some of
          their visibility when other spectators are standing. This is
          certainly true. However, when an ambulatory spectator is blocked by
          persons standing in front of him, he can himself stand and regain
          90% of his view. A wheelchair user cannot do this, and in most of
                                                  16
01-04587
        However, it is clear that these requirements are flexibly applied. The
Court is unable and unwilling to poke through the myriad of announcements,
press releases, and threatened legal actions and to extract specific,
technical standards where even the Justice Department has not seen fit to do
so. The Court is particularly unwilling to define new standards in the context
of an indoor arena, which is far more difficult to design and build than an
outdoor stadium such as the Atlanta Olympic facility. Instead, the Court can
only apply the flexible approach employed by the Department of Justice and
seek to ensure substantial compliance with the accessibility requirements of
enhanced sightlines, dispersal, and integration.
        Paramount within this flexible approach is the concept of substantial
compliance, especially in regard to sightlines. The Department of Justice has
never used JDSAD S 4.33.3 to require that 100% of the wheelchair seating
provide enhanced sightlines. Instead, taking the Olympic Stadium for a model
as the Justice Department has directed, a facility is in compliance with the
ADA regulations if a substantial percentage of seats provide these sightlines.
       It is not the role of the Court to define "substantial percentage" in
arbitrary, numerical terms. Instead, the Court must examine the submitted
design and determine whether it meets the flexible test of substantial
compliance which the Department of Justice has enforced. Applying this
standard, the Court concludes that the MCI Center does not currently comply
with the ADA regulations, but that defendants may be able to implement some
moderate changes to achieve compliance.
____________________
       the non-enhanced locations in the MCI Center will be afforded nearly
       no visibility of the arena surface when spectators are standing. The
       Court is thus faced with a choice between requiring the superior,
       enhanced views or accepting the completely eclipsing, unenhanced views.
       The choice is an easy one. The enhanced view can be described as a
       "comparable," though perhaps slightly superior, line of sight, while
       the unenhanced simply cannot be. Therefore, the Court has no difficulty
       requiring these enhanced lines of sight, pursuant to the regulation.
                        B. Number of Locations Required
        As currently designed, the MCI Center provides more wheelchair
locations than are required by the "one percent plus one" formula of
4.13(19). In order to comply with 4.33.3, a substantial percentage of the
required locations must be "accessible," however extra spaces above the
required number are not affected by 4.33.3. Therefore, it is the percentage
of required wheelchair spaces with enhanced sightlines which must be
substantial, not the percentage of total spaces.
        Before the Court can determine how many wheelchair locations are
required by 4.13(19), it must first determine which seating areas are
included in the general seating capacity. After making that determination, the
Court can calculate the number of required wheelchair locations and can also
determine which seats can be counted toward compliance with 4.33.3.
        In making this determination, the Court is guided by the Department of
Justice Standards, which require that each "definable area, e.g., a room"
comply on its own. See JDSAD 3.5, 4.1.1(1). Under this standard, the floor
seating, the Club Level, and the lower and upper bowls are areas that are open
for public purchase and are part of one general seating area, and these areas
are counted in the general seating capacity. Defendants claim that the suites
should also be considered part of this general area. The suites, however, are
enclosed and segregated from the general seating bowl. They are not really
available for purchase by the general public, to purchase suite tickets, a
person must lease an entire suite. This is far more prohibitive than even the
purchase of season tickets which is required in the Club Level, and it is in
keeping with the notion
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that the suites are private viewing areas, not accessible to the public.17
Because they are so separated from the general seating areas, the seats in the
suites are not counted toward the compliance of the general seating bowl.18
      Therefore, JDSAD 4.13(19) does not include suite seating in the general
capacity figures; its "one percent plus one" formula applies only to the three
general seating levels. Therefore, 181 spaces are required for basketball, 173
spaces for hockey, 186 spaces for the 360 stage, and 163 spaces for the 270
stage. To comply with 4.33.3, these spaces must be integrated and dispersed
throughout the bowl, and they must provide a line of sight over standing
spectators.
                              C. Integration
        JDSAD 4.33.3 requires wheelchair spaces to be "an integral part of
any fixed seating plan." There is no real disagreement that the designed
wheelchair seating is sufficiently integrated into the fixed seating plan or
that it meets the ADA's horizontal and vertical integration
____________________
    17  Furthermore, if the wheelchair seats in the suites were counted
        towards compliance with ADA regulations, then an insurmountable
        dispersal problem would result. The suite seating, which is far beyond
        the reach of most persons, whether wheelchair bound or ambulatory,
        would account for 60% of the required wheelchair seating, while the
        spaces in the endzones would account for a further 30%, leaving
        wheelchair patrons with a choice primarily between those two types
        of seating. This choice between the condo and the ghetto is not
        compatible with the dispersal requirements of S 4.33.3, nor with the
        remedial spirit of the ADA.
    18  The suites themselves must of course comply with the requirements of
        4.33.3, which they do. Each suite seats 12-24 persons, and each
        includes 1-2 wheelchair spaces. This is a sufficient percentage, and
        each wheelchair space is integrated and provides an unobstructed line
        of sight. The issue of dispersal is not germane to the individual
        suites; however, since each suite includes at least one wheelchair
        space, the suites which are wheelchair accessible are perfectly
        dispersed throughout the suite levels.
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requirements. Plaintiffs raise the integration issue in connection with the
proposed "in-fill" seating in the arena, but they fail to demonstrate that it
is truly at issue. Although defendants have not yet finalized the design of
the "in-fill" seating, they have testified that they expect it to consist of
small platforms, with only a few seats on each.19 Therefore, plaintiffs' fears
that the in-fill areas will be vast wastelands within which one or two
isolated wheelchair patrons will be seated are unsubstantiated.20 Should
defendants reverse their present thinking and install retractable seating,
plaintiffs may later have a cause of action, but that claim is not yet ripe.
                               D. Sightlines
        This is the core issue of the litigation. Pursuant to the JDSAD
4.33.3, the ADA requires that wheelchair locations have "lines of sight
comparable to those of the general public." As the Court decided on October
21, sightlines of wheelchair locations are "comparable" only if a substantial
number have a line of sight over standing spectators.
        Under the current design, many lower bowl and club level locations
provide these enhanced sightlines. It is undisputed that the basketball and
360 stage designs contain 71 enhanced spaces, and that the hockey and 270
stage designs provide 70 and 41 spaces,respectively. Defendants suggest
postconstruction policies to bring other wheelchair spaces into compliance
with 4.33.3's sightline requirements. They specifically propose two such
policies: a
_____________________
     19   Standard 4.33.3 specifically permits the use of "readily removable
          seats" for use when spaces are not needed for wheelchair patrons.
          The type of "in-fill" seating proposed by defendants falls within
          this category of permitted seating.
     20   If anything, plaintiffs have argued that the seating is too
          integrated, and that lines of sight have suffered from the failure
          to place wheelchair spaces further above those seats in front of
          them.
01-04591                                        20
"no-stand" policy for persons sitting in the rows in front of wheelchair
patrons and a "no sell" policy for those seats. These policies would go into
effect in the upper bowl only, and would affect the 72 wheelchair spaces in
the third row of the upper bowl.
1. Education and Enforcement Policy
        The "no-stand" policy, which defendants call the "education and
enforcement" measure, would supposedly prevent persons from standing up in
front of wheelchair patrons. Therefore, since all the wheelchair seats in the
arena give a clear line of sight over seated spectators, wheelchair patrons
would not have their views blocked. There are two problems with this policy,
however. The first is that it is clearly an operational, not a design,
solution. The ADA permits "alternative methods" such as operational measures
to remove architectural barriers in existing facilities. 42 U.S.C.
12182(b)(2)(iv), but imposes different requirements on new facilities. For
new structures, the ADA requires that the design and construction provide
ready access to individuals with disabilities. 42 U.S.C. 12183(a)(1).
Therefore, a purely operational solution is insufficient to secure compliance
for a new construction such as the MCI Center.
        The second problem is that the policy would impermissibly single out
wheelchair patrons for attention. The policy against standing would only be in
effect in sections where wheelchair patrons are located; therefore all
ambulatory patrons in the arena will be permitted to stand during play, except
those seated in front of wheelchair patrons. This situation presents the very
real danger of subjecting wheelchair users to resentment or hostility. The ADA
prohibits measures that "screen out or tend to screen out an individual with a
disability or any class of individuals with disabilities from fully and
equally enjoying any goods, services, facilities, privileges,
01-04592                                        21
advantages, or accommodations. 42 U.S.C. 12182(b)(2)(A)(1). The education and
enforcement policy will single out wheelchair users and very likely prevent
them from fully enjoying the camaraderie and fellowship of a sporting contest
or other event. As such, it is an impermissible solution to the sightline
problem.
        Therefore, defendants cannot rely on the education and enforcement
policy to bring these 72 seats into compliance. That policy, even if it were
successful,21 is not the type of design or construction accommodation that the
ADA mandates for new facilities.
2. No Sell Policy
        Defendants' second proposal is different, however. Under this policy,
defendants would withhold from sale the seats in front of wheelchair patrons.
These seats would either be removed or altered with "an attractive cover" to
keep them unoccupied. This solution is more a design feature than an
operational measure. The policy relies on structural means, much like the
"in-fill" seating arrangements that are undeniably in compliance with ADA
regulations. Unlike the education and enforcement policy, the "no-sell" policy
would not force other patrons to curtail their activities in order to
accommodate wheelchair users; everyone in the arena would be able to stand and
cheer if they wished. This policy would not, therefore, run the risk of
exposing
_____________________
     21   The Court does not doubt that spectators at an arena event would
          respect the needs to wheelchair patrons around them, but it cannot
          say for sure that this policy would be sufficient to correct the
          problem of standing spectators in the heat of an exciting event.
          Defendants have stated that they would not eject patrons who stand
          in violation of the policy, nor do they have enforcement procedures
          more forceful than polite reminders. However, it is not necessary
          for the Court to decide this issue, since there are other reasons
          why defendants cannot rely on this policy to bring the upper bowl
          seats into compliance.
01-04593                                        22
wheelchair patrons to extra attention.
        Plaintiffs' own expert testified that he believed this policy was a
design solution, not a purely operational one. Furthermore, a similar measure
was approved by the Department of Justice at the Olympic Aquatic Center, thus
suggesting that the policy complies with ADA regulations. Therefore, the
policy of withholding seats from sale is a design and construction
accommodation that is permitted by the ADA for new construction, and it could
be an option for defendants to bring the seats in the upper bowl, and perhaps
elsewhere, into compliance with the sightline requirements of the ADA.22
3. Overall Compliance
        If defendants bring the upper bowl spaces into compliance with the
sightline requirements of 4.33.3, they would have well over 100 wheelchair
locations which provide unobstructed lines of sight. The ADA requires that a
substantial percentage of the required wheelchair spaces must provide such
lines of sight, by following a combination of current designs and proposed
policy, it appears likely that defendants could meet this goal.23
______________________
     22    A certain amount of integration may be lost from the implementation
           of this policy, since two rows of seats will sit empty in front of
           wheelchair patrons. This does not pose a compliance problem.
           Enhancement of sightlines necessarily causes some loss of vertical
           integration, and a reasonable loss of integration does not
           affect compliance under 4.33.3. Furthermore, the same loss of
           integration would result from moving the wheelchair locations to
           the first row of the upper bowl, which is unquestionably a
           compliant solution.
     23    If 72 upper level spaces are brought into compliance, then between
           the three general seating levels, the basketball and 360 stage
           configurations would each provide 143 enhanced spaces, the hockey
           configuration would provide 142, and the 270 stage would provide
           101. This means that defendants would achieve enhanced sightlines
           in 79% of the required basketball spaces, in 77% of the 360 stage
           spaces, in 82% of the hockey spaces, and in 62% of the 270 stage
           spaces.
                                       23
01-04594
                                 E. Dispersal
        Finally, JDSAD 4.33.3 requires that wheelchair spaces be dispersed
throughout the seating bowl so that they "provide people with disabilities a
choice of admission prices and lines of sight comparable to those provided to
members of the general public." Dispersal requires a choice of various seating
areas, good and bad, expensive and inexpensive, which generally matches those
of ambulatory spectators. Furthermore, in order to comply with the other
requirements of 4.33.3, spaces with enhanced sightlines must be dispersed; a
design which segregates the spaces with enhanced sightlines cannot comply, no
matter how dispersed the spaces with unenhanced sightlines may be. Because an
ambulatory patron may select a seat with an unobstructed view in any section
of the arena, it is not "comparable" to force a wheelchair patron to choose
between a good view and a good location. Because wheelchair patrons make up
only a small percentage of all spectators, there need not be wheelchair
seating in every section of the arena, but there must be spaces scattered
throughout a sufficiently representative number of sections in the seating
bowl to provide comparable choices.
        There are wheelchair spaces available in nearly every section of the
upper bowl in the MCI Center design. Therefore, if defendants can bring those
spaces into compliance with the ADA sightline requirement, the upper bowl will
easily comply with the dispersal requirement. The lower bowl and club level do
not have adequate dispersal, however. While there are 64 spaces in the lower
seating bowl and seven in the club level that have adequate sightlines, almost
every one of these is in the end zone sections. There are almost no spaces in
the center court sections that provide a line of sight over standing
spectators, even though these locations are the most popular
                                        24
01-04595
for many events. This arrangement does not provide wheelchair users with the
choice of seating locations required by 4.33.3.
        Defendants argue that the dispersal requirement should be flexibly
applied. They point to the poor dispersal of accessible seating in the upper
bowl of the Atlanta Olympic Stadium-where there were no spaces with enhanced
sightlines at all-in support of this argument. The Court agrees that the
Justice Department has required only substantial compliance, not perfect
dispersal. However, defendants would have the Court accept the argument that,
because the Olympic Stadium did not offer wheelchair users a choice of the
worst seats in the house (the upper deck), the MCI Center should be excused
from offering a choice of the best seats (the center court locations). The
comparison between the two situations is a poor one. In the Atlanta stadium
wheelchair users could purchase the better, lower deck spaces, and they could
choose seating in any section of the seating bowl. No such choice is afforded
by the MCI Center design. Wheelchair patrons preferring center court locations
would be forced into the upper deck, with no possibility of a closer view.24
        At this point, none of the general seating levels meets dispersal
requirements. The upper bowl does not have spaces with enhanced lines of
sight, and spaces in the lower and club levels are ghettoized in the end zone
areas. Defendants may bring spaces in the upper bowl into compliance with the
sightline requirements, which would eliminate the dispersal problem in that
bowl. However, the design of the lower bowl and Club levels of the MCI Center
still would not
---------------------
     24    Nor could the MCI Center's defect be remedied as in the Olympic
           Stadium. In Atlanta, the lack of accessible seating in the upper
           bowl was "cured" by offering wheelchair patrons lower deck seats at
           the less expensive, upper deck prices. No such arrangement is
           possible at the MCI Center, where there are no center court seats
           to offer in the lower or Club levels.
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01-04596
meet the dispersal element of accessibility that is required by the ADA,
because nearly all the accessible wheelchair locations on those levels are
concentrated in the end zone sections. In order to achieve adequate dispersal,
defendants must place wheelchair locations with enhanced sightlines into other
sections on those two levels.
                  IV. Plaintiffs' D.C. Human Rights Act Claim
        In addition to their claims under the ADA, plaintiffs have sued under
the District of Columbia's Human Rights Act, D.C. Code I-2519. See Amended
Complaint, Count III. The D.C. courts have always looked to cases from the
federal courts in interpreting the D.C. Human Rights Act, and have followed,
wherever applicable, precedents from the federal courts' treatment of
comparable civil rights statutes. Benefits Communication Corp. v. Klieforth,
642 A.2d 1299, 1301-02 (D.C. 1994). See also O'Donnell v. Associated General
Contractors, 645 A.2d 1084, 1086 (D.C. 1994); American University v. District
of Columbia Commission, 598 A.2d 416, 422 (D.C. 1991); Miller v. American
Coalition of Citizens With Disabilities, Inc., 485 A.2d 186, 190 (D.C. 1984).
This Court has also applied legal standards under the ADA to claims under the
D.C. Human Rights Act. Whitbeck v. Vital Signs, Civ. No. 95-1011, 1996 U.S.
Dist. LEXIS 11729 (D.D.C. Aug. 2, 1996), ILLEGIBLE *11. Therefore, the D.C.
law is applied in the same manner as the parallel federal antidiscrimination
provisions.
        Defendants' design fails to comply with the requirements of the D.C.
Human Rights Act for the same reasons that it fails to comply with the ADA.
Furthermore, defendants may seek to remedy their noncompliance with both
statutes in the same manner.
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01-04597
                                  V. Conclusion
        The MCI Center, as designed, would not be "readily accessible to and
usable by" wheelchair users, as is required by the ADA. Although its seating
bowl complies with the integration element required by the Department of
Justice Standards on Accessible Design, it fails to comply with the sightline
and dispersal elements. Under the current design, less than 40% of the
wheelchair spaces required by the JDSAD provide an unobstructed line of sight
when spectators stand. Furthermore, almost all of these seats are located in
the end zone areas. These failures may be remedied, and defendants may alter
their design so that it provides substantial seating which complies with these
elements. However, it is up to defendants to devise and design these
alterations. While the Court has addressed some remedies that defendants have
proposed, it cannot and will not specify solutions for the sightline and
dispersal problems.
        The Court will issue an order that, consistent with this memorandum
opinion, requires defendants to construct the MCI Center in compliance with
the Americans with Disabilities Act and to submit a proposed design to the
Court within 30 days.
December 20th (handwritten), 1996                 Thomas F. Hogan (signature)
                                                 Thomas F. Hogan
                                                 United States District Judge
                                        27
01-04598