Case: 1:03-cv-01097-ABJ-MJW As of: 06/03/2010 11:17 PM MDT 1 of 8
CONSOL, TERMED, U/ADV
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:03−cv−01097−ABJ−MJW

Lucas, et al v. CO Rockies Bsbl Clb Assigned to: Judge WY. Alan B. Johnson Referred to: Magistrate Judge Michael J. Watanabe Demand: $0 Lead case: 1:03−cv−00034−ABJ−MJW Member case: (View Member Case)
Case in other court: USDC CO, 03−WY−0034(MJW)
Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 06/16/2003 Date Terminated: 08/31/2004 Jury Demand: None Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Carrie Ann Lucas for herself and as next friend of other Heather Rebekah Lucas

represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sherwood Owens for himself and as next friend of other Nicholas Owens

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kyle Stubbs

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Roanne Kuenzler

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Evan Stutman

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Colorado Rockies Baseball Club, Ltd. a Colorado limited partnership

represented by K. Preston Oade , Jr. Holme Roberts &Owen, LLP−Denver 1700 Lincoln Street #4100 Denver, CO 80203−4541 303−866−0453

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Fax: 303−866−0200 Email: preston.oade@hro.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/16/2003 06/16/2003 07/24/2003
07/31/2003 08/13/2003 08/14/2003
08/14/2003 08/15/2003
08/15/2003
08/28/2003
10/22/2003 10/22/2003 10/23/2003
11/04/2003

# Docket Text
1 COMPLAINT (Summons(es) issued) (bpm) (Entered: 06/17/2003)
FILING FEE PAID: on 6/16/03 in the amount of $ 150, receipt # 244184. (bpm) (Entered: 06/17/2003)
2 RETURN OF SERVICE of Summons and Complaint, Insturctions Re Notice of Availability of US Magistrate Judge to Exercise Jurisdiction pursuant to USSC 636(c), Rule 73, LR 72.6, Notice of Availability of US Magistrate to Exercise Jurisdiction and Order of Reference upon defendant CO Rockies Bsbl Clb on 7/11/03 by leaving with: Harold R. Roth, the registered agent for acceptance of service of process (former empl) (Entered: 07/28/2003)
3 ANSWER by defendant CO Rockies Bsbl Clb to complaint [1−1] (former empl) (Entered: 08/04/2003)
4 MOTION by defendant CO Rockies Bsbl Clb to consolidate cases this with 03−WY−34 AJ(MJW) (former empl) (Entered: 08/14/2003)
5 ORDER R16,stat,stlmt,pt,pto Case referred to Magistrate Judge Michael J. Watanabe (the motion to consolidate this case with 03−WY−34 AJ(MJW) [4−1]) signed 8/14/03 by Chief Judge Lewis T. Babcock (cc: to counsel) (former empl) Modified on 06/22/2004 (Entered: 08/14/2003)
6 RESPONSE by plaintiff to motion to consolidate cases this with 03−WY−34 AJ(MJW) [4−1] and their OPPOSITION to the (also included) dft's motion to amend scheduling order (former empl) (Entered: 08/14/2003)
7 MINUTE ORDER : by Magistrate Judge Michael J. Watanabe granting motion to consolidate cases this with 03−WY−34 AJ(MJW) [4−1] 1:03−cv−34 with member cases 1:03−cv−1097 Order: parties to forthwith meet and confer and submit to this court an amended proposed R 16 Scheduling Order by 8/25/03 (cc: all counsel) ; entry date : 8/15/03 (former empl) (Entered: 08/15/2003)
MINUTE ORDER : by Judge WY. Alan B. Johnson granting motion to consolidate cases: this with 03−WY−1097 AJ(MJW) [33−1] in LEAD CASE 1:03−cv−00034; Order: parties shall meet forthwith and confer and sumbit an amended proposed R 16 Scheduling Orer by 8/25/03 (cc: all counsel) ; entry date : 8/15/03 (former empl) (Entered: 08/15/2003)
MINUTE ORDER : by Judge WY. Alan B. Johnson regarding [16−1] schedule order in 1:03−cv−00034 ; 3 day court trial set for 9:00 3/15/04 in 1:03−cv−00034, in 1:03−cv−01097 (cc: all counsel) ; entry date : 8/29/03 (former empl) (Entered: 08/29/2003)
Unopposed MOTION by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, and in 1:03−cv−01097 to extend discovery deadline to 12/31/03 (former empl) (Entered: 10/23/2003)
MEMORANDUM by Judge WY. Alan B. Johnson referring to Magistrate Judge Michael J. Watanabe the motion to extend discovery deadline to 12/31/03 [38−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 10/24/2003)
MINUTE ORDER : by Magistrate Judge Michael J. Watanabe granting motion to extend discovery deadline to 12/31/03 [38−1] , regarding [16−1] schedule order ; discovery ddl set 12/31/03 ; disp mtn ddl remains set 1/12/04 (cc: all counsel) ; entry date : 10/24/03 (former empl) (Entered: 10/24/2003)
FAX FILED MOTION by plaintiff in 1:03−cv−00034, plaintiff in 1:03−cv−01097 unopposed, to extend deadlines to designate expert witnesses and rebuttal experts (former empl) (Entered: 11/05/2003)

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11/05/2003 11/06/2003
11/07/2003 12/08/2003 12/09/2003 12/10/2003 12/10/2003
12/15/2003 12/16/2003
12/17/2003
12/18/2003

MEMORANDUM by Judge WY. Alan B. Johnson referring to Magistrate Judge Michael J. Watanabe the motion unopposed, to extend deadlines to designate expert witnesses and rebuttal experts [41−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 11/06/2003)
MINUTE ORDER : by Judge WY. Alan B. Johnson granting motion unopposed, to extend deadlines to designate expert witnesses and rebuttal experts [41−1] in 1:03−cv−00034, 1:03−cv−01097: deadline to disclose expert witnesses and provide information is extended to 11/24/03, rebuttal designations extended to 12/24/03 and deadline to depose experts is extended to 1/9/04 (cc: all counsel) ; entry date : 11/7/03 (former empl) (Entered: 11/07/2003)
Stipulated MOTION by plaintiffs and 1:03−cv−00034, and 1:03−cv−01097 to reschedule (3/15/04) trial date to accommodate an evidentiary view of Coors Field by the Court During a Baseball Game (former empl) (Entered: 11/10/2003)
MOTION by plaintiffs in 1:03−cv−00034, and 1:03−cv−01097 to amend proposed scheduling order (regarding discovery deadlines) (former empl) (Entered: 12/09/2003)
MEMORANDUM by Judge WY. Alan B. Johnson referring to Magistrate Judge Michael J. Watanabe the motion to amend proposed scheduling order (regarding discovery deadlines) [45−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 12/10/2003)
MOTION by plaintiffs to withdraw motion to amend proposed scheduling order (regarding discovery deadlines) [45−1] in 1:03−cv−00034, [0−1] in 1:03−cv−01097 (former empl) (Entered: 12/10/2003)
MINUTE ORDER : by Magistrate Judge Michael J. Watanabe accepting the motion to withdraw motion to amend proposed scheduling order (regarding discovery deadlines) [45−1] and withdrawing motion to amend proposed scheduling order (regarding discovery deadlines) [45−1] in 1:03−cv−00034, 1:03−cv−01097 (cc: all counsel) ; entry date : 12/11/03 (former empl) (Entered: 12/11/2003)
MOTION by plaintiffs in 1:03−cv−00034, and 1:03−cv−01097 to extend dispositive motion deadline (to 2/12/04) and a limited extension of the discovery deadline (1/30/04) or, alternatively, to compel depositions and strike witness disclosures and request for expedited consideration (former empl) (Entered: 12/16/2003)
8 MEMORANDUM by Judge WY. Alan B. Johnson referring to Magistrate Judge Michael J. Watanabe the motion to extend dispositive motion deadline (to 2/12/04) and a limited extension of the discovery deadline (1/30/04) or, alternatively, to compel depositions and strike witness disclosures and request for expedited consideration [49−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 12/17/2003)
2 COURTROOM MINUTES by Magistrate Judge Michael J. Watanabe taking under advisement on 12/17/03 the motion to extend dispositive motion deadline (to 2/12/04) and a limited extension of the discovery deadline (1/30/04) or, alternatively, to compel depositions and strike witness disclosures and request for expedited consideration [49−1] in 1:03−cv−00034, 1:03−cv−01097 ; entry date : 12/18/03 Court Reporter: FTR (former empl) (Entered: 12/18/2003)
3 MINUTE ORDER : by Magistrate Judge Michael J. Watanabe granting in part and denying in part motion to extend dispositive motion deadline (to 2/12/04) and a limited extension of the discovery deadline (1/30/04) or, alternatively, to compel depositions and strike witness disclosures and request for expedited consideration [49−1] in 1:03−cv−00034, 1:03−cv−01097: ORDERED: deadline to compleet depositions of Keli McGregor and Jeff Benner and the other defense witnesses as agreed, to be prior to 1/30/04 and parties are to forthwith set those dates; dispositive motoins will not be extended and are due 1/12/04; each party pay own fees and costs for this motion (cc: all counsel) ; entry date : 12/19/03 (former empl) (Entered: 12/19/2003)

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12/22/2003 01/12/2004 01/23/2004 01/26/2004 01/27/2004 02/02/2004 02/02/2004 02/11/2004 02/12/2004 02/17/2004 02/17/2004 02/17/2004 02/20/2004 02/20/2004 02/25/2004 02/25/2004

ORDER by Judge WY. Alan B. Johnson denying motion to reschedule (3/15/04) trial date to accommodate an evidentiary view of Coors Field by the Court During a Baseball Game [44−1] in 1:03−cv−00034, 1:03−cv−01097 (cc: all counsel) ; entry date : 12/24/03 (former empl) (Entered: 12/24/2003)
MOTION AND SUPPORTING BRIEF by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, and in 1:03−cv−01097 for partial summary judgment (former empl) (Entered: 01/13/2004)
Unopposed MOTION by plaintiffs in 1:03−cv−00034, plaintiff in 1:03−cv−01097 for limited extension of the discovery cutoff for deposition of Jeff Benner (former empl) (Entered: 01/26/2004)
MEMORANDUM by Magistrate Judge Michael J. Watanabe referring to Magistrate Judge Michael J. Watanabe the motion for limited extension of the discovery cutoff for deposition of Jeff Benner [55−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 01/26/2004)
4 MINUTE ORDER : by Magistrate Judge Michael J. Watanabe granting motion for limited extension of the discovery cutoff for deposition of Jeff Benner [55−1] to 23/04 for that limited purpose in 1:03−cv−00034, 1:03−cv−01097 (cc: all counsel) ; entry date : 1/28/04 (former empl) (Entered: 01/28/2004)
5 OPPOSITION (RESPONSE) by plaintiffs in 1:03−cv−00034, 1:03−cv−01097 to motion for partial summary judgment [54−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 02/03/2004)
DECLARATION of Amy F. Robertson filed by plaintiff in 1:03−cv−00034, in 1:03−cv−01097 re: motion response [58−1] in 1:03−cv−00034, re: motion response [5−1] in 1:03−cv−01097 (former empl) (Entered: 02/03/2004)
MINUTE ORDER : by Judge WY. Alan B. Johnson all trial subpoenas are to direct witnesses to appear at the office of the clerk of the court in Room A−105 on the date of their scheduled appearance (cc: all counsel) ; entry date : 2/11/04 (former empl) (Entered: 02/11/2004)
6 LETTER to counsel from clerk of court mailing Trial Procedures for Wyoming Judges, Sitting by Designation and instructions for trial subpoenas to have witnesses report in Room A−105, Clerk's Office (former empl) (Entered: 02/12/2004)
COURTROOM MINUTES by Magistrate Judge Michael J. Watanabe regarding [16−1] schedule order ; settlement conf set for 10:30 3/4/04 ; pretrial conf held 2/17/04 final pretrial order entered; entry date : 2/20/04 Court Reporter: FTR Magistrate Judge Watanabe (former empl) (Entered: 02/20/2004)
MINUTE ORDER : by Magistrate Judge Michael J. Watanabe regarding [16−1] schedule order in 1:03−cv−00034 ; settlement conf set for 10:30 3/4/04 in 1:03−cv−00034, in 1:03−cv−01097 (cc: all counsel) ; entry date : 2/20/04 (former empl) (Entered: 02/20/2004)
FINAL PRE−TRIAL ORDER by Magistrate Judge Michael J. Watanabe (cc: all counsel) (former empl) (Entered: 02/20/2004)
MINUTE ORDER : by Judge WY. Alan B. Johnson, that the parties are to each file witness lists, listing the name, expected date of testimony and expected length of time of testimony for all witnesses by noon on 2/27/04 (cc: all counsel) ; entry date : 2/20/04 (former empl) (Entered: 02/20/2004)
7 REPLY by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, in 1:03−cv−01097 to response to support its motion for partial summary judgment [54−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 02/20/2004)
MOTION by plaintiffs in 1:03−cv−00034 and 1:03−cv−01097 to amend pre−trial order order [64−1] in (former empl) (Entered: 02/26/2004)
MEMORANDUM by Judge WY. Alan B. Johnson referring to Magistrate Judge Michael J. Watanabe the motion to amend pre−trial order [64−1] in [67−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 02/26/2004)

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02/26/2004 02/27/2004
02/27/2004 02/27/2004 02/27/2004 03/01/2004
03/01/2004 03/01/2004 03/01/2004 03/04/2004 03/05/2004
03/05/2004 03/08/2004 03/08/2004 03/08/2004

MINUTE ORDER : by Magistrate Judge Michael J. Watanabe setting telephone hearing on motion to amend pre−trial order [64−1] in [67−1] 10:00 3/1/04 in 1:03−cv−00034, in 1:03−cv−01097 (cc: all counsel) ; entry date : 2/27/04 (former empl) (Entered: 02/27/2004)
MINUTE ORDER : by Judge WY. Alan B. Johnson regarding [16−1] schedule order in 1:03−cv−00034 ; court trial set to commence 9:00 3/19/04 in 1:03−cv−00034, in 1:03−cv−01097 ; Further Ordered: counsel shall have parties and any person who will testify regarding issues at an on site visit, on 1 hour's notice, between 3−16 &3−18−04; parties to contact court staff about courtroom requirements for technology for this trial (cc: all counsel) ; entry date : 2/27/04 (former empl) (Entered: 02/27/2004)
MOTION by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, defendant CO Rockies Bsbl Clb in 1:03−cv−01097 for leave to file its reply in support of its motion for partial summary judgment (former empl) (Entered: 02/27/2004)
Joint Witness Schedule submitted by plaintiffs and defendant in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 02/27/2004)
8 MOTION by plaintiffs and defendant in 1:03−cv−00034, and in 1:03−cv−01097 for clarification concerning trial schedule and request for expedited consideration of the motion (former empl) (Entered: 03/02/2004)
COURTROOM MINUTES by Magistrate Judge Michael J. Watanabe granting and denying motion to amend pre−trial order [64−1]; [67−1] : portion of the motion reqgarding the depsotiion testimony at trial in lieu of live testimony of seven witnesses is denied and the remainder of the motion granted ; entry date : 3/2/04 Court Reporter: FTR (former empl) (Entered: 03/02/2004)
MOTION by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, in 1:03−cv−01097 to exclude the testimony of Kevin B. McGuire (former empl) (Entered: 03/02/2004)
MOTION by plaintiffs in 1:03−cv−00034, 1:03−cv−01097 for leave to file surreply brief in opposition to dft's motion for partial summary judgment (former empl) (Entered: 03/02/2004)
MOTION by plaintiffs in 1:03−cv−00034, in 1:03−cv−01097 in limine to preclude dft from introducing evidence relating to the question whether it would be feasible to provide wheelchair−accessible seating next to the field (former empl) (Entered: 03/02/2004)
MEMORANDUM by Magistrate Judge Michael J. Watanabe ; settlement conf held 3/4/04 no settlement (former empl) (Entered: 03/05/2004)
MINUTE ORDER : by Judge WY. Alan B. Johnson setting hearing on motion for partial summary judgment [54−1] in 1:03−cv−00034, 1:03−cv−01097 11:00 3/11/04 in Denver; regarding [16−1] schedule order in 1:03−cv−00034 ; 3 day court trial set for 9:30 4/19/04 in in Denver (cc: all counsel) ; entry date : 3/8/04 (former empl) (Entered: 03/08/2004)
ORIGINAL MINUTE ORDER : by Judge WY. Alan B. Johnson replacing the fax copy of [79−2] minute order, regarding [16−1] schedule order in 1:03−cv−00034 ; court trial set for 9:30 4/19/04 in 1:03−cv−00034, in 1:03−cv−01097 (cc: all counsel) ; entry date : 3/21/04 (former empl) (Entered: 03/21/2004)
9 TRANSCRIPT of Telephone Status Conference on Mar 1'2004 before Magistrate Judge Michael J. Watanabe ( pages: 1−13) Prepared By: Aver/WoodsReportingServiceInc (certified copy) (former empl) (Entered: 03/08/2004)
OBJECTIONS by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, and 1:03−cv−01097 to pltfs' exhibits in pre−trial order [64−1] in 1:03−cv−00034, [0−1] in 1:03−cv−01097 (former empl) (Entered: 03/09/2004)
10 OBJECTIONS by plaintiffs in 1:03−cv−00034,and in 1:03−cv−01097 to dft's exhibits in pretrial order [64−1] in 1:03−cv−00034, [0−1] in 1:03−cv−01097 (former empl) (Entered: 03/09/2004)

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03/09/2004 03/09/2004 03/09/2004 03/10/2004 03/10/2004 03/12/2004 03/12/2004 03/12/2004 03/12/2004
03/15/2004 03/15/2004 03/16/2004 03/16/2004 03/19/2004 03/31/2004

MOTION by plaintiffs in 1:03−cv−00034 and 1:03−cv−01097, for leave to file supplemental material in opposition to dft's motion for partial summary judgment tendered under SEAL with motion − in SEALED AREA (former empl) (Entered: 03/10/2004)
AFFIDAVIT of Timothy P. Fox **tendered under SEAL and in SEALED AREA (former empl) (Entered: 03/10/2004)
MOTION by plaintiffs in 1:03−cv−00034, and in 1:03−cv−01097 to seal pltfs' motion for leave to file supplemental material in opposition to dfts' motion for partial summary judgment and declaration of Timothy P. Fox (former empl) (Entered: 03/10/2004)
OBJECTION to order denying in part pltfs' motoin to amend final pretrial order by plaintiffs in 1:03−cv−00034, and in 1:03−cv−01097 concerning minutes [73−1] in 1:03−cv−00034, minutes [0−1] in 1:03−cv−01097 (former empl) (Entered: 03/12/2004)
ORDER signed 3/9/04 by Judge WY. Alan B. Johnson granting pltfs' motion for leave to file surreply brief in opposition to dft's motion for partial summary judgment [76−1] in 1:03−cv−00034, 1:03−cv−01097 (cc: all counsel) ; entry date : 3/16/04 (former empl) (Entered: 03/16/2004)
OPPOSITION (RESPONSE) by plaintiffs in 1:03−cv−00034, and 1:03−cv−01097 to dft's motion to exclude the testimony of Kevin B. McGuire [74−1] (former empl) (Entered: 03/15/2004)
RESPONSE by defendant in 1:03−cv−00034,and 1:03−cv−01097 to pltfs' motion in limine to preclude dft from introducing evidence relating to the question whether it would be feasible to provide wheelchair−accessible seating next to the field [77−1] in 1:03−cv−00034, 1:03−cv−01097 (former empl) (Entered: 03/15/2004)
TRANSCRIPT of Hearing on Motion for Partial Summary Judgment on March 11, 2004 before Judge Alan B. Johnson in Denver ( pages: 1−49) Prepared By: Paul Zuckerman (certified copy) (former empl) (Entered: 03/15/2004)
ORIGINAL ORDER GRANTING MOTION FOR LEAVE TO FILE SURREPLY by Judge WY. Alan B. Johnson regarding [90−1] order in 1:03−cv−00034, 1:03−cv−01097, regarding [76−1] motion for leave to file surreply brief in opposition to dft's motion for partial summary judgment in 1:03−cv−00034, 1:03−cv−01097 (cc 3/22/04: all counsel) ; entry date : 3/21/04 (former empl) (Entered: 03/21/2004)
Tendered Proposed Findings of Fact and Conclusions of Law and submitted by plaintiff in 1:03−cv−00034, plaintiff in 1:03−cv−01097 (former empl) (Entered: 03/15/2004)
Tendered Proposed Findings of Fact and Conclusions of Law submitted by defendant in 1:03−cv−00034, and 1:03−cv−01097 (former empl) (Entered: 03/15/2004)
MINUTE ORDER : by Judge WY. Alan B. Johnson regarding [16−1] schedule order ; 3 day court trial set for 9:30 4/19/04 in 1:03−cv−00034, in 1:03−cv−01097 [set in Courtroom 10, Arraj Courthouse] (cc: all counsel) ; entry date : 3/16/04 (former empl) (Entered: 03/16/2004)
REVISED OBJECTIONS by plaintiffs in 1:03−cv−00034, and 1:03−cv−01097 [objection [82−1]] to dft's exhibits to the pre−trial order [64−1] in 1:03−cv−00034, pre−trial order order [0−1] in 1:03−cv−01097 (former empl) (Entered: 03/17/2004)
DESIGNATIONS of deposition testimony that they MAY use at trial (STATEMENT) by plaintiffs in 1:03−cv−00034, in 1:03−cv−01097 (former empl) (Entered: 03/19/2004)
RESPONSE by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, 1:03−cv−01097 to pla's objection to order denying in part pltfs' motoin to amend final pretrial order [86−1] in 1:03−cv−00034, OBJECTION to order denying in part pltfs' motoin to amend final pretrial order [0−1] in 1:03−cv−01097 (pap) (Entered: 04/05/2004)

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04/02/2004 04/02/2004
04/05/2004
04/06/2004 04/12/2004 04/13/2004 04/15/2004
04/19/2004 04/20/2004 04/21/2004 04/22/2004 04/22/2004 05/14/2004 05/14/2004 05/14/2004 06/25/2004

ORDER by Judge WY. Alan B. Johnson denying dft's motion for partial summary judgment [54−1] in 1:03−cv−00034 (cc: all counsel) ; entry date : 4/2/04 (gms) (Entered: 04/02/2004)
ORDER by Judge WY. Alan B. Johnson terminating plas' objection to order denying in part pltfs' motion to amend final pretrial order [86−1] in 1:03−cv−00034, 1:03−cv−01097; the Final Pretrial Order shall be and is amended to reflect the testimony of the listed witnesses; (cc: all counsel) ; entry date : 4/5/04 (pap) Modified on 04/13/2004 (Entered: 04/05/2004)
(STATEMENT) Counter−Designations of Plas' Designations of Deposition Testimony that they may use at trial by defendant CO Rockies Bsbl Clb in 1:03−cv−00034, defendant CO Rockies Bsbl Clb in 1:03−cv−01097 re: statement [93−1] in 1:03−cv−00034, re: statement [0−1] in 1:03−cv−01097 (pap) (Entered: 04/06/2004)
RETURN OF SERVICE of Subpoena on Tom Gleason on 3/24/04 (pap) (Entered: 04/07/2004)
Revised Designations of Deposition Testimony that they may use at Trial (STATEMENT) by plaintiffs in 1:03−cv−00034 and 1:03−cv−01097 re: statement [93−1] in 1:03−cv−00034, re: statement [0−1] in 1:03−cv−01097 (pap) (Entered: 04/14/2004)
ORDER by Judge WY. Alan B. Johnson denying without prejudice dft's motion to exclude the testimony of Kevin B. McGuire [74−1] in 1:03−cv−00034 (cc: all counsel) ; entry date : 4/19/04 (pap) (Entered: 04/19/2004)
ORDER by Judge WY. Alan B. Johnson denying plas' motion in limine to preclude dft from introducing evidence relating to the question whether it would be feasible to provide wheelchair−accessible seating next to the field [77−1] in 1:03−cv−00034; plas' request for a continuance is denied; (cc: all counsel) ; entry date : 4/21/04 (pap) (Entered: 04/21/2004)
COURTROOM MINUTES by Judge WY. Alan B. Johnson; Trial to Court − Day One ; court trial held 4/19/04 , trbeg ; entry date : 4/21/04 Court Reporter: Adrienne Whitlow (pap) (Entered: 04/21/2004)
COURTROOM MINUTES by Judge WY. Alan B. Johnson; Trial to Court − Day Two ; entry date : 4/21/04 Court Reporter: Adrienne Whitlow (pap) (Entered: 04/21/2004)
COURTROOM MINUTES by Judge WY. Alan B. Johnson Trial to Court Day Three ; entry date : 4/23/04 Court Reporter: Adrienne Whitlow (pap) (Entered: 04/23/2004)
COURTROOM MINUTES by Judge WY. Alan B. Johnson; Trial to Court − Day Four court trial ends , case taken under advisement ; attached are Dft's witness list; plas' witness list; plas' exhibit list; dft's exhibit list; entry date : 4/26/04 Court Reporter: Adrienne Whitlow (pap) (Entered: 04/26/2004)
Stipulation by parties and ORDER by Judge WY. Alan B. Johnson regarding custody of exhibits and depositions; (cc: all counsel) ; entry date : 4/26/04 (pap) (Entered: 04/26/2004)
TRANSCRIPT of Testimony of James L. E. Terry on 4/20/04 before Judge Johnson ( pages: 1−185) Prepared By: Adrienne Whitlow (certified copy) (gms) (Entered: 05/17/2004)
TRANSCRIPT of Testimony of James Salmen, Volume I, on 4/21/04 before Judge Johnson ( pages: 1−108) Prepared By: Adrienne Whitlow (certified copy) (gms) (Entered: 05/17/2004)
TRANSCRIPT of Testimony of James Salmen, Vol II on 4/22/04 before Judge Johnson ( pages: 109−170) Prepared By: Adrienne Whitlow (certified copy) (gms) (Entered: 05/17/2004)
NOTICE by plaintiffs in 1:03−cv−00034 and 1:03−cv−01097 concerning post−trial briefs and/or revised proposed findings of fact and conclusions of law (pap)

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08/25/2004 08/31/2004

(Entered: 06/28/2004)
Stipulated (MOTION) by plaintiffs and defendant in 1:03−cv−00034 and 1:03−cv−01097 dismissal with prejudic (pap) (Entered: 08/27/2004)
ORDER by Judge WY. Alan B. Johnson granting stipulated dismissal with prejudice [113−1] in 1:03−cv−00034, 1:03−cv−01097, with costs and atty fees allocated pursuant to the parties' stipulation dismissing case (cc: all counsel) ; entry date : 9/2/04 (gms) (Entered: 09/02/2004)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-WY-0034-AJ (MJW)
COLORADO CROSS-DISABILITY COALITION, a Colorado corporation, JEREMY HUDSON, and JAMES HUDSON,
Plaintiffs,
v.
COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,
Defendant.
CARRIE ANN LUCAS, for herself and as next friend of HEATHER REBEKAH LUCAS, SHERWOOD OWENS, for himself and as next friend of NICHOLAS OWENS, KYLE STUBBS, ROANNE KUENZLER, and EVAN STUTMAN,
Plaintiffs,
v.
COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,
Defendant.
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs, by and through their counsel, hereby submit their Proposed Findings of Fact
and Conclusions of Law.

INTRODUCTION Plaintiffs have brought this lawsuit challenging the compliance of wheelchair-accessible seating in the lower level of Coors Field with Title III of the Americans with Disabilities Act (“ADA”). 42 U.S.C. §§ 12181 - 12189.
FINDINGS OF FACT 1. Plaintiff Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their nondisabled allies. 2. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- public accommodations such as Coors Field. 3. Plaintiff Jeremy Hudson has spina bifida and is substantially impaired in several major life activities, including but not limited to walking. He uses a manual wheelchair for mobility. Plaintiff Jeremy Hudson is a member of CCDC. 4. Plaintiff James Hudson is the father of Jeremy Hudson and often attends baseball games at Coors Field with him. As such, he is in a known relationship with and/or association with an individual with a disability. Plaintiff James Hudson is a member of CCDC. 5. Plaintiff Carrie Ann Lucas, as a result of fibrous dysplasia, osteomyelitis, and related treatment, as well as ototoxicity and Stevens Johnson Syndrome, is substantially impaired in several major life activities including, but not limited, to walking, hearing, and seeing and uses
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a motorized wheelchair for mobility. Ms. Lucas is a member of CCDC. Ms. Lucas is also the mother of Plaintiff Heather Rebekeh Lucas.
6. Plaintiffs Heather Rebekah Lucas, as a result of Cri du Chat Syndrome, is substantially limited in several major life activities including, but not limited to, walking, seeing, and learning, and uses a manual wheelchair for mobility. Miss Lucas is a member of CCDC.
7. Plaintiff Kyle Stubbs, as a result of post-polio syndrome, is substantially impaired in several major life activities including, but not limited to, walking. He uses a power wheelchair for mobility. Mr. Stubbs is a member of CCDC.
8. Plaintiff Roanne Kuenzler, as a result of a spinal cord injury, is substantially impaired in several major life activities including, but not limited to, walking. She uses a manual wheelchair for mobility. Ms. Kuenzler is a member of CCDC.
9. Plaintiff Evan Stutman, as a result of muscular dystrophy, is substantially impaired in several major life activities including, but not limited to, walking and uses a power wheelchair for mobility. Mr. Stutman is a member of CCDC.
10. Plaintiffs Hudson, Hudson, Lucas, Lucas, Stubbs, Kuenzler, and Stutman will be referred to herein as the “Individual Plaintiffs.”
11. Defendant Colorado Rockies Baseball Club, Ltd. is a Colorado limited partnership that owns the Colorado Rockies Major League Baseball team and leases and operates Coors Field, the stadium in which the team plays.
12. Coors Field was built for first occupancy after January 26, 1993.
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13. Defendant has divided the seats at Coors Field into seating areas for purposes of pricing and sales.
14. The “Infield Box” seating area includes sections 120 through 141 on the lower level. In 2003, these seats sold for $27 to $38. In 2004, these seats are selling for $27 to $40.
15. The “Midfield Box” seating area includes sections 116 through 119 and 142 through 145 on the lower level. In 2003, these seats sold for $21.50 to $33. In 2004, these seats are selling for $21.50 to $35.
16. The “Outfield Box” seating area includes sections 110 through 115 and 146 through 150 on the lower level. In 2003, these seats sold for $20 to $32. In 2004, these seats are selling for $20 to $34.
17. The Infield Box, Midfield Box and Outfield Box seating areas will be collectively referred to in this pleading as the “Lower Level Box” seating areas; this term thus refers to all seats in sections 110 through 150 of Coors Field. All of these seats currently sell for $40 or less.
18. The Lower Level Box seating areas are not bleachers or balconies. 19. Currently, the only wheelchair-accessible seating in the Lower Level Box seating areas is located behind the back row of ambulatory seating1 in each section. In most of these seating areas, the back row of ambulatory seating is 38 rows from the field. This places

1

Seats that are not accessible to people who use wheelchairs will be referred to

herein as “ambulatory seats.” See, e.g., Ind. Living Res. v. Oregon Arena Corp., 982 F. Supp.

698, 712 (D. Or. 1997).

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wheelchair-accessible seating approximately 108 feet farther from the field, and approximately 30 feet higher, than front row ambulatory seating.
20. Coors Field, as originally designed, had no front row seats for people who use wheelchairs anywhere on the lower level.
21. Before construction began on Coors Field, Coloradans with disabilities met with representatives of Defendant, the Denver Metropolitan Major League Baseball Stadium District, and HOK Sport, the architect that designed Coors Field, to discuss seating for people with disabilities.
22. As a result of these meetings, a commitment was made to add front-row seating in four locations: 10 seats immediately behind the backstop (“Backstop Accessible Seats”); 50 seats at the front of the Pavilion section; 20 front row bullpen seats; and 16 front row right field box seats. This was to provide a total of 96 front-row wheelchair-accessible seats on the lower level at Coors Field.
23. When Coors Field was finally constructed, only two of these four promised areas materialized. There were no front row wheelchair-accessible seats adjacent to the bullpen or in the right field box section. Instead of the promised 50 front row seats in the Pavilion area, there were 26. Instead of the promised ten Backstop Accessible Seats, there were eight. There were thus 34 wheelchair-accessible seats in two areas instead of the promised 96 seats in four areas.
24. Of these seats, the Backstop Accessible Seats were the only wheelchair-accessible seats near the front of any of the Lower Level Box seating areas. From 1995 to 2000, Defendant sold these seats for the same price as all other Infield Box seats.
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25. In 2001, Defendant converted the first few rows of seating behind home plate, including the Backstop Accessible Seats, into a premium seating area called the “Coors Clubhouse.” The Coors Clubhouse has 168 ambulatory seats, and the eight wheelchairaccessible and eight companion seats that make up the Backstop Accessible Seats.
26. Ambulatory seats in the front row of the Coors Clubhouse sell for $150 each; in the remaining rows, they cost $135. This price includes certain amenities, for example, a pregame buffet, non-alcoholic beverages, in-seat waitstaff service, and preferred parking. These seats are largely sold on a season-ticket basis.
27. Now that the Backstop Accessible Seats are part of the Coors Clubhouse, they cost $100 each. This price excludes the pre-game buffet. In addition, they are only sold on the day of the game in question; that is, fans with disabilities are not permitted to purchase them in advance.
28. The eight wheelchair-accessible Backstop Accessible Seats that now cost $100 are still the only wheelchair-accessible seats near the infield, whereas Coors Field has 210 ambulatory seats in the first row of the Infield Box seating area, and 1,017 ambulatory seats in the first five rows of that seating area (all of which sell for $27 to $40). There are a total of 383 front-row ambulatory seats in the Lower Level Box seating areas and 1,996 ambulatory seats within the first five rows of those areas, all of which sell for $40 or less.
29. As a result of the above, starting in 2001, a wheelchair-using baseball fan who wanted to sit near the infield at Coors Field was required to pay approximately three times as much as most non-disabled fans paid to sit near the infield. The prices paid by people who use
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wheelchairs for seats adjacent to the infield were thus not comparable to the prices paid by members of the general public for such seats.
30. The wheelchair-accessible seats behind the back rows of Sections 114-126 and 135-147 of the Lower Level Box seating areas are under the overhang created by the club level seating. The wheelchair-accessible seats behind Sections 127-134 are also under the slightly less severe overhang created by the press box.
31. When fans with disabilities sit in the wheelchair-accessible seats under the overhang, they are unable to see many pop foul balls, pop fly balls and home runs: When the batter hits a high fly ball, the trajectory of the ball is obstructed by the overhang.
32. Relatively few rows of ambulatory seats in the Lower Level Box seating areas are affected by the overhang and, because the ambulatory seats are lower and farther forward than the accessible seats behind the back row, the impact of the overhang is not as great. Ultimately, while all wheelchair-accessible seats in sections 114 through 147 are obstructed by the overhang, there are 9,225 ambulatory seats in these seating areas that are completely unaffected by this obstruction.
33. In light of this and their relative distance from, and height above, the field, the wheelchair-accessible seats behind the back row of the Lower Level Box seats do not provide views or lines of sight comparable to those from the ambulatory seats in the front row or close to the infield.
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34. Coors Field has 406 wheelchair-accessible seats. Of these, only 12% are located at the front of their respective seating areas. The remaining 88% are located at the back of their respective seating areas.
35. In 1999 and 2000 -- the last two years before the creation of the Coors Clubhouse -- Defendant sold an average of 789 tickets per year for the Backstop Accessible Seats.
36. During the 2001 season, after the price of these seats was raised to $100, Defendant was only able to sell 86 tickets to the Backstop Accessible Seats. In 2002, it sold 115 tickets, and in 2003, 148.
37. Even though the price for the Backstop Accessible Seats had more than tripled, Defendant’s revenue from the sale of tickets to these seats in 2001 and 2002 was less than half what it was in 1999 and 2000, before the creation of the Coors Clubhouse.
38. If the Defendant sold the Backstop Accessible Seats for the same price as the Infield Box Seats in 2004, and sold as many seats as it did on average during the two years preceding the creation of the Coors Clubhouse, it would take in approximately $30,000, over twice the amount of revenue attributable to the Backstop Accessible Seats during 2003.
39. That is, if Defendant were to sell some of the Backstop Accessible Seats for Infield Box prices, it is likely that it would make more money off those seats than it currently does.
40. In well over half of the games played at Coors Field since the creation of the Coors Clubhouse, none of the Backstop Accessible Seats sold, that is, the only wheelchairaccessible seats near the infield sat empty.
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41. There is no evidence that it would have been “structurally impracticable” to design and construct Coors Field with wheelchair-accessible seating adjacent to the infield.
42. There is no evidence that it is currently -- or would have been during design and construction -- infeasible to locate wheelchair-accessible seating adjacent to the infield.
43. Among seats in the Lower Level Box seating areas, most members of the general public and Defendant’s owners, officers and management employees choose to sit in the front row or toward the front. Far fewer choose to sit in the back row or under the overhang.
44. Ambulatory seats near the field have advantages over the accessible seats located in the back of the Lower Level Box seating areas. These advantages include:
a. Being closer to the game, thus providing a better view of the action; b. Being able to hear the on-field sounds of the games and see players’
expressions; c. Being able to interact with players and umpires; d. Being able to enjoy the sun on cooler days; and e. Receiving baseballs from field attendants or players. 45. The Individual Plaintiffs are all baseball fans who enjoy attending games at Coors Field. 46. CCDC members, including Individual Plaintiffs, have been to Coors Field in the past, have sat -- prior to 2001 -- in the wheelchair-accessible seating behind home plate (the “Backstop Accessible Seats”), and would like to return to Coors Field and sit in seats adjacent to
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the infield for the same price as non-disabled patrons pay to sit near the infield in the Infield Box Seats.
47. While many of the Individual Plaintiffs enjoy sitting in various areas of Coors Field, all want to have the choice of sitting adjacent to the infield, so they can have lines of sight and views comparable to the ambulatory seats near the infield, while paying a price comparable to the prices paid by most nondisabled fans for those seats.
48. Individual Plaintiffs testified that they are unable to see high fly balls when sitting in the wheelchair-accessible seats at the rear of the Lower Level Box seating areas, that they preferred seats in which they could watch an entire game without obstruction, and that they would enjoy the other advantages of sitting closer to the infield.
49. In particular, Plaintiff Carrie Ann Lucas is Deaf and has a significant visual impairment, so the only way she can enjoy a baseball game is from the front row. Ms. Lucas’s daughter, Heather Rebekah Lucas, has significant visual and cognitive disabilities. It is Ms. Lucas’s experience that Heather can only follow a game is she sits close to the field.
CONCLUSIONS OF LAW I. Plaintiffs Have Standing to Bring this Action.
50. The Individual Plaintiffs have been injured by Defendant’s conduct in the past, are continuing to be injured by that conduct and will be injured by it in the future. The relief Plaintiffs have requested -- installation of wheelchair-accessible seating adjacent to the infield or pricing six of the eight Backstop Accessible Seats (and the corresponding companions seats) at
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prices comparable to the Infield Box Seats -- will remedy this injury. Therefore, the Individual Plaintiffs have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
51. Because CCDC members otherwise have standing to sue in their own right, because the interests at stake in this litigation are germane to CCDC’s purpose, and because neither the claim asserted nor the relief requested requires the participation of individual members, CCDC has standing to bring this case. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). II. Statutory and Regulatory Background.
52. The ADA was passed in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title III of the ADA prohibits disability discrimination by those who own or operate places of public accommodation -- such as Coors Field -- “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of that public accommodation. Id. § 12182(a).
53. Coors Field is a place of public accommodation, as that term is used in Title III of the ADA. Id. § 12181(7)(D).
54. The ADA prohibits places of public accommodation from affording people with disabilities an opportunity that is not equal to that afforded others, id. § 12182(b)(1)(A)(ii), or providing people with disabilities goods, services, facilities, privileges, advantages or accommodations that are different or separate from those provided others, unless such action is
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necessary to provide people with disabilities with goods and services that are as effective as those provided others. Id. § 12182(b)(1)(A)(iii).
55. Title III also requires that “[g]oods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.” Id. § 12182(b)(1)(B).
56. Because it was built for first occupancy after January 26, 1993, Coors Field was required to be designed and constructed to be “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1).
57. To comply with section 12183(a)(1), a facility must be built in conformance with the Department of Justice Standards for Accessible Design (“Standards”). 28 C.F.R. pt. 36, app. A; see 28 C.F.R. § 36.406 (requiring conformance with the Standards). Coors Field was built after January 26, 1993, and was thus required to be designed and constructed in compliance with the Standards.
58. The only defense to compliance with the Standards in the design and construction of new facilities is where it is “structurally impracticable” to do so, 42 U.S.C. § 12183(a)(1), that is, “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) (emphasis added), see also Standards § 4.1.1(5)(a) (same).
59. Because Defendant did not plead the affirmative defense of structural impracticability, the Court will not consider whether this defense applies. Defendant did not, in
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any event, offer any evidence that it would have been structurally impracticable to design and construct Coors Field with wheelchair-accessible seats adjacent to the infield.
60. The Standards prohibit any alteration that “decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.” Standards § 4.1.6(1)(a).
III. The Lower Level Box Seating Areas At Coors Field Are In Violation of the ADA. 61. Congress, in discussing the ADA’s “fundamental principle” of integration for
people with disabilities, stated that: [h]istorically, persons with disabilities have been relegated to separate and often inferior services. For example, seating for persons using wheelchairs is often located in the back of auditoriums. In addition to providing inferior seating, the patron in a wheelchair is forced to separate from family or friends during the performance.
H.R. Rep. No. 101-485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 385 (emphasis added). Congress specifically concluded that, “it is critical that seating be available in the front of the audience for persons with hearing and vision impairments, including those who use wheelchairs.” Id. at 103, reprinted in 1990 U.S.C.C.A.N. 303, 386.
62. In the text of the ADA, Congress instructed the Department of Justice (“DOJ”) to promulgate regulations and standards implementing the provisions of Title III, 42 U.S.C. § 12186(b); these regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998). Congress also instructed the Architectural and Transportation Barriers Compliance Board (“Access Board”) to issue “minimum guidelines” that “shall establish additional requirements . . . to ensure that buildings [and] facilities . . . are accessible, in terms of
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architecture and design . . . to individuals with disabilities.” 42 U.S.C. § 12204(a) & (b). In response to this instruction, the Access Board issued its “Americans with Disabilities Act Architectural Guidlines” (“ADAAG”). 56 Fed. Reg. 35,408 (July 26, 1991).
63. Pursuant to the instruction of Congress in § 12186(c), the DOJ adopted the ADAAG as its Standards for Accessible Design. 28 C.F.R. pt. 36, app. A.
64. Section 4.1.3(19) of the Standards requires assembly areas such as Coors Field to have wheelchair-accessible seating that numbers approximately one percent of the seating, and requires each wheelchair-accessible seat to have a companion seat next to it. Standards § 4.1.3(19), Department of Justice, “Accessible Stadiums,” at 1.
65. Section 4.33.3 of the Standards governs assembly areas such as Coors Field. It reads, in relevant part:
[w]heelchair 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 for members of the general public. . . . At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress. 66. The Department of Justice has explained that the requirement for wheelchairaccessible seating in more than one location where capacity exceeds 300 “is known as dispersed seating. Wheelchair seating locations must be dispersed throughout all seating areas and provide
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a choice of admission prices and views comparable to those for the general public.” Department of Justice, “Accessible Stadiums” at 1 (emphasis added).
67. Section 4.33.3 thus requires four things: that wheelchair-accessible seating be integrated into the seating for the general public; that it be dispersed throughout all seating areas; that it provide lines of sight comparable to those for the general public; and that it provide a choice of admission prices comparable to those for the general public.
68. It is appropriate to apply the requirements of 4.33.3 to seating areas within Coors Field rather than limiting the analysis to the assembly area as a whole. The DOJ requires this when it requires dispersal “throughout all seating areas,” “Accessible Stadiums,” at 1, and a number of cases have applied the requirements to individual seating areas within assembly areas. See, e.g., Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 709 & n.9 (D. Or. 1997) (quoting “Accessible Stadiums,” noting that the DOJ believes “wheelchair spaces ‘must be dispersed more or less evenly throughout the categories of ticket prices and classes of seating,’” and applying requirement of one percent wheelchair-accessible seating to individual seating areas within an arena); Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs., P.C., 950 F. Supp. 393, 404 (D.D.C. 1996) (applying the comparable line of sight requirement to individual seating areas in the arena).
69. In addition, it is appropriate to read the requirements of Section 4.33.3 together, so that dispersed, integrated seats with comparable lines of sight are priced comparably to similar seats for the general public. See, e.g., Paralyzed Veterans, 950 F. Supp. at 404 (“Dispersal requires a choice of various seating areas, good and bad, expensive and inexpensive, which
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generally matches those of ambulatory spectators. . . . [I]t is not ‘comparable’ to force a wheelchair patron to choose between a good view and a good location.”); United States v. Cinemark USA, Inc., 348 F.3d 569, 576 (6th Cir. 2003) (Section 4.33.3 is “intended to assure disabled patrons seats of ‘comparable’ quality to those provided for members of the general public.”), petition for cert. filed No. 03-1131 (U.S. Feb. 4, 2004).
70. The Lower Level Box seating areas at Coors Field do not comply with the ADA. A. The Lower Level Box Seating Areas at Coors Field Are in Violation of
Section 4.33.3. 1. Wheelchair-Accessible Seating Is Not Dispersed In the Lower Level
Box Seating Areas at Coors Field. 71. In order to satisfy the requirement that wheelchair-accessible seating be “dispersed throughout all seating areas,” it must be “provided in a number equal to approximately one percent of the seats in each price range, level of amenities, and viewing angle.” Indep. Living Res., 982 F. Supp. at 709 & n.9 (quoting letter dated Nov. 21, 1994 from the DOJ regarding Yakima Stadium). 72. Dispersal, under Section 4.33.3, requires both horizontal and vertical dispersal and requires that “wheelchair locations must be distributed in a manner that roughly approximates the overall distribution of seats in the arena.” Id. at 709. Without this requirement, “an arena operator could simply designate a few token wheelchair seats in the better seating areas, and cluster the majority of wheelchair seats in the last row or in other undesirable locations.” Id.
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73. “[T]here 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.” Paralyzed Veterans, 950 F. Supp. at 404.
74. Wheelchair-accessible seating is not dispersed throughout the Lower Level Box seating areas at Coors Field. Because there are no wheelchair-accessible seats farther forward than the last row, this does not “roughly approximate” the distribution of seats in the ballpark, which distribution includes many ambulatory seats in the front row and many rows closer to the infield than the 39th row.
75. The choice of wheelchair-accessible in the Lower Level Box seating areas does not “generally match[ ] [that] of ambulatory spectators,” see Paralyzed Veterans, 950 F. Supp. at 404, because patrons who use wheelchairs may not choose to sit near the infield unless they are willing to pay at least $100 per seat, while non-disabled patrons can do this for $20 to $40. All of the wheelchair-accessible seats in the Infield Box and Midfield Box seating areas, and many of those in the Outfield Box seating areas, are under an overhang, while non-disabled patrons have a choice of 9,225 seats in these areas that are not obstructed by the overhang.
76. Ultimately, Defendant has done in the Lower Level Box seating areas precisely what the court in Independent Living Resources warned against: “designate[d] a few token wheelchair seats in the better seating areas” -- here, the Coors Clubhouse -- and “cluster[ed] the majority of wheelchair seats in the last row . . .” Id., 982 F. Supp. at 709.
77. While Coors Field is not required to have front row wheelchair-accessible seating in every section of the Lower Level Box seating areas, there must be front-row wheelchair-
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accessible seats in a “sufficiently representative number of sections . . . to provide comparable choices” for seats near the infield. See Paralyzed Veterans, 950 F. Supp. at 404.
78. Based on the above, wheelchair-accessible seating is not dispersed throughout the Lower Level Box seating areas at Coors Field, in violation of section 4.33.3 of the Standards.
2. Wheelchair-Accessible Seating Is Not Integrated In the Lower Level Box Seating Areas at Coors Field.
79. Section 4.33.3 requires that “[w]heelchair areas shall be an integral part of any fixed seating plan . . .” As noted above, in discussing the importance of integration under the ADA, Congress specifically noted the history of relegating individuals with disabilities to inferior seating at the rear of assembly areas. See H.R. Rep. No. 101-485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 385 (emphasis added).
80. Congress specifically concluded that, “it is critical that seating be available in the front of the audience for persons with hearing and vision impairments, including those who use wheelchairs.” Id. at 103, reprinted in 1990 U.S.C.C.A.N. 303, 386.
81. Because all wheelchair-accessible seating in the Lower Level Box seating areas is located at the rear of those sections, it is not integrated.
82. This is especially so for individuals such as the Lucases, both of whom have visual impairments and use wheelchairs, so that they must sit close to the game in order to enjoy it.
83. Seating is integrated where it is “incorporated into, and located among, the seating for the general public.” Meineker v. Hoyts Cinemas Corp., 216 F. Supp. 2d 14, 19 (N.D.N.Y.
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2002) (“Meineker I”), vacated and remanded on other grounds Meineker v. Hoyts Cinemas Corp., No. 02-9034, 69 Fed. Appx. 19, 2003 WL 21510423 (2d Cir. July 1, 2003) (“Meineker II”).
84. In addition, the DOJ has construed the integration requirement of section 4.33.3 to require “‘that theater operators provide wheelchair seating in the area of the theater where most members of the general public usually choose to sit.’” Meineker II, 2003 WL 21510423, at **2 (quoting Brief for the United States as Amicus Curiae at 25 (emphasis in Meineker II)).
85. At Coors Field, most people who purchase tickets in the Lower Level Box seating areas choose to sit close to the field; far fewer choose to sit in the back row or under the overhang. And all of the wheelchair-accessible seating in the Lower Level Box seating areas are located at the back of each seating area, behind where most people sit, not among the seating for the general public.
86. Where, as at Coors Field, “a defendant has relegated wheelchair patrons to a portion of the [assembly area] that provide[s] truly inferior viewing angles and limited or no seating for the general public,” the situation is “unquestionably . . . in violation of the ADA.” Meineker I, 216 F. Supp. 2d at 18 n.4.2

2

Defendant has suggested that wheelchair-accessible is integrated if it is merely

within the footprint of the seating layout. This formulation does not ensure that the goal of

Congress -- to prevent relegation of individuals with disabilities to the rear of seating areas -- is

achieved. It does not, in any event, save the seating configuration at Coors Field. Ballpark-wide,

88% of the wheelchair-accessible seats are located at the back of their respective seating areas.

Cf. Indep. Living Res., 982 F. Supp. at 717 (fact that 82% of wheelchair-accessible seating was

clustered at the ends and on an upper level was “disproportionate”). As such, wheelchair-

(continued...)

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87. Based on the above, wheelchair-accessible seating is not integrated into the Lower Level Box seating areas at Coors Field, in violation of section 4.33.3 of the Standards.
3. Wheelchair-Accessible Seating Does Not Provide Comparable Lines of Sight In the Lower Level Box Seating Areas at Coors Field.
88. Section 4.33.3. requires that Defendant locate wheelchair-accessible seats “so as to provide people with physical disabilities a choice of . . . lines of sight comparable to those for members of the general public.”
89. “Comparable” in this context means “similar.” Cinemark, 348 F.3d at 575-76; see also Meineker I, 216 F. Supp. 2d at 18 (“The requirement that a line of sight be ‘comparable’ clearly imposes a qualitative requirement that the sight line be ‘similar . . ..’”).
90. “Line of sight” means “‘a line from an observer’s eye to a distant point . . . toward which he is looking . . .’” Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir. 2003) (quoting Webster’s Third New International Dictionary, at 1316 (1993) (ellipses added)), petition for cert. filed, No. 03-641 (U.S. Oct. 27, 2003).
91. The requirement of similar lines of sight includes both horizontal and vertical viewing angles; “[a] variety of factors determine the quality of ‘vertical’ sight lines, such as the distance from performance areas . . .” Architectural and Transportation Barriers Compliance Board, ADAAG Manual at 117 (emphasis added).
2(...continued) accessible seating at Coors Field cannot be considered to be “integrated.”
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92. Locating wheelchair-accessible seats only behind the back of the Lower Level Box seating areas does not offer disabled patrons seats with comparable lines of sight to the ambulatory seats in the front of these areas.
93. Given that the quality of vertical sight lines includes distance from the performance area, because of their greater distance from and height above the field, the wheelchair-accessible seats behind the 38th row are not comparable to the ambulatory seats in the first few rows.
94. Given that “lines of sight” means a line from the observer’s eye to that toward which he is looking, the fact that most fans with disabilities sitting behind the back row under an overhang have no lines of sight to many pop fly, pop foul and home run balls means that their lines of sight are not comparable to those of the thousands ambulatory Lower Level Box seats unaffected by the overhang.
95. Based on the above, wheelchair-accessible seating in the Lower Level Box seating areas does not provide people with physical disabilities a choice of lines of sight comparable to those for members of the general public, in violation of section 4.33.3 of the Standards.
4. Wheelchair-Accessible Seating Does Not Provide Comparable Prices In the Lower Level Box Seating Areas at Coors Field.
96. Section 4.33.3 requires that patrons who use wheelchairs be provided “a choice of admission prices . . . comparable to those for members of the general public.”
97. This requirement must be read together with the requirements of dispersal, integration and lines of sight. As one court has noted: “Dispersal requires a choice of various
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seating areas, good and bad, expensive and inexpensive, which generally matches those of
ambulatory spectators. . . .” Paralyzed Veterans, 950 F. Supp. at 404.
98. It is not sufficient simply to have some wheelchair-accessible seats in each price
range:
[W]heelchair spaces ordinarily must be available in each ticket price category. However, that by itself will not always be enough to completely satisfy the requirement in Standard 4.33.3 that in large assembly areas wheelchair spaces must be an integral part of the seating plan and be dispersed so as to provide wheelchair users with a choice of sightlines and ticket prices comparable to those available to the general public.
Indep. Living Res., 982 F. Supp. at 709.
99. Comparable seats should thus have comparable prices.
100. This is not the case at Coors Field, where the only wheelchair-accessible seats
providing comparable views, lines of sight and experiences to the almost 2,000 ambulatory seats in the first five rows of the Lower Level Box seating areas cost at least three times as much.3
101. Based on the above, wheelchair-accessible seating in the Lower Level Box seating
areas does not provide people with physical disabilities prices comparable to those for members
of the general public, in violation of section 4.33.3 of the Standards.

3

Defendant argues that section 4.33.3 merely requires a range of admission prices.

This is contrary to the language of the regulation, which requires “a choice of admission prices . .

. comparable to those for members of the general public.” In addition, it would permit pricing

policies in flagrant violation of the letter and spirit of the ADA, for example, charging $10 more

for each wheelchair-accessible seat than for an ambulatory seat in the same section. The prices

would still represent a “range,” but would not be “comparable to those for members of the

general public.”

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102. Further, wheelchair-accessible seating in the Lower Level Box seating areas does
not provide people with physical disabilities with seats of comparable quality or that offer a
comparable experience to those for members of the general public.
B. The Exception In Section 4.33.3 Does Not Apply to the Lower Level Box Seating Areas at Coors Field.
103. Section 4.33.3 contains the following exception (the “Bleacher/Balcony
Exception”):
EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress.
104. Defendant argues that the Bleacher/Balcony Exception excuses the current
configuration at Coors Field, in which all wheelchair-accessible seats in the Lower Level Box
seating areas are located behind the back row of ambulatory seating. This is not the case.
105. As an initial matter, the Bleacher/Balcony Exception does not apply to the Lower
Level Box seating areas at Coors Field.
106. The ADAAG Manual states that it applies “only [in] discrete parts of an assembly
seating area” often “situated high above the performing area.” Id. at 117.
107. The DOJ concurs:
The government . . . asserts that the clustering exception is intended to have very limited application to discrete parts of assembly areas, such as balconies, bleachers, and the like. These seating areas are unique, it says, in that they are almost always situated high above the spectacle to be observed (i.e., where the sight lines almost always exceed five percent).
Fiedler v. Am. Multi-Cinema, Inc., 871 F. Supp. 35, 38-39 (D.D.C. 1994).
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108. The Infield Box seating areas at Coors Field are neither bleachers nor balconies, and this area is not located high above the performance area, but rather immediately adjacent to the field.
109. As such, the Bleacher/Balcony Exception does not apply to the Lower Level Box seating areas at Coors Field.
C. Even If the Bleacher/Balcony Exception Applies to the Lower Level Box Seating Areas at Coors Field, Those Seating Areas Are Still out of Compliance with the ADA.
110. The Bleacher/Balcony Exception does not excuse Defendant from the requirements of integration, comparable prices, comparable lines of sight or (where feasible) dispersal. As such, even if it does apply to the Lower Level Box seating areas at Coors Field, it would not excuse the lack of front-row wheelchair-accessible seating.
111. The Bleacher/Balcony Exception itself provides that “[e]quivalent accessible viewing positions may be located on levels having accessible egress.” Standards § 4.33.3.
112. In this context, the phrase “[e]quivalent accessible viewing positions” refers to the types of equivalence required by the section of which the Bleacher/Balcony Exception is a part -Section 4.33.3 -- and thus refers to seats with equivalent lines of sight and prices.4

4

Defendant argues that “equivalent” used in this context refers to the equivalent

numbers required by section 4.1.3(19) of the Standards. Given that the Bleacher/Balcony

Exception is included in section 4.33.3 and immediately follows that section’s requirement of

comparable lines of sight and prices, it makes far more sense to read “equivalent” in the

Bleacher/Balcony Exception to refer to those required equivalences. This interpretation also has

the advantage of being in harmony with the language and goals of the ADA and its legislative

history, and is thus to be preferred. See Joy Techs., Inc. v. Sec’y of Labor, 99 F.3d 991, 996

(continued...)

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113. The ADAAG Manual makes clear that the Bleacher/Balcony Exception “is not an exemption from requirements for integrated or companion seating or choice in admission prices. Where dispersion is feasible, it must be achieved.” Id. at 117. One of the only cases to discuss the Bleacher/Balcony Exception applied that exception while, at the same time, requiring compliance with the integration and comparable line of sight requirements. Meineker I, 216 F. Supp. 2d at 17-19.
114. The Bleacher/Balcony Exception -- read in its entirety and in light of the ADAAG Manual and the Meineker I decision -- excuses dispersal “throughout” a seating area -- that is, to middle rows or tiers -- and permits the stadium to cluster the wheelchair-accessible seating otherwise required by section 4.33.3 where accessible egress is feasible.
115. At Coors Field, this means that Defendant is not required to provide wheelchairaccessible seating in the middle -- say, row 19 -- of the Lower Level Box seating areas; but it is required to provide wheelchair-accessible seating where accessible egress was and is feasible, that is, at the back and front of those areas.
116. Defendant did not plead and has not proven that accessible egress -- and therefore dispersal -- is not feasible in the front row of the Lower Level Box seating areas.
4(...continued) (10th Cir. 1996) (“a regulation must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute it implements.” (Citation omitted.)); Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984) (“[w]here there is an interpretation of an ambiguous regulation which is reasonable and consistent with the statute, that interpretation is to be preferred.” (Citation omitted.))
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117. Coors Field was required to be designed and constructed in compliance with the Standards. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.406(a).
118. Section 4.33.3 of the Standards requires dispersal “throughout all seating areas.” “Accessible Stadiums” at 1. Section 4.1.3(1) requires that “[a]t least one accessible route . . . shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility.”
119. As a result, Coors Field was required to have been designed and constructed with front-row wheelchair-accessible seating in the Lower Level Box seating areas and an accessible route to those seats.
120. The only defense to compliance in new construction is where it is “structurally impracticable.” Defendant has neither pleaded nor proved that defense.
121. Although “feasibility” is not a defense to compliance with the Standards, Defendant has neither pleaded nor proved that it was “infeasible” to include wheelchairaccessible seating at the front of the Lower Level Box seating areas.
122. Ultimately, Defendant cannot argue that it was infeasible to provide accessible egress at field level, because such egress already exists: in the Coors Clubhouse. There are already wheelchair-accessible at the field level; they are simply insufficient in number and -- at $100 each, in contrast to the thousands of ambulatory seats $40 and under -- violate the requirement of comparable prices.
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D. The Lower Level Box Seating Areas Violate the General Anti-Discrimination Provisions of the ADA.
123. The current configuration and pricing of wheelchair-accessible seating in the Lower Level Box seating areas at Coors Field does not provide people with disabilities an opportunity equal to that provided others, but rather provides such people with goods, services, facilities, privileges, advantages and accommodations that are different or separate from those provided others, in violation of 42 U.S.C. §§ 12182(b)(1)(A)(ii) & (iii).
124. The current configuration and pricing of wheelchair-accessible seating also fails to provide “[g]oods, services, facilities, privileges, advantages, and accommodations . . . to . . . individual[s] with . . . disabilit[ies] in the most integrated setting appropriate to the needs of the individual[s],” in violation of 42 U.S.C. § 12182(b)(1)(B).
E. The Creation of the Coors Clubhouse Reduced the Accessibility of Coors Field Below that Required by the Standards.
125. When Coors Field was built, it included eight wheelchair-accessible seats and nine companion seats in the front of section 132 of the Infield Box seating area.
126. Because these were the only wheelchair-accessible seats adjacent to the infield -indeed, the only such seats that were not behind all ambulatory seats -- there were not enough of them. To have been in full compliance with Section 4.33.3, Coors Field should have had at least twenty wheelchair-accessible seats and twenty companion seats located in the front row of several different Infield Box Sections. However, the Backstop Accessible Seats -- from 1995 to 2000 -- were properly dispersed to the front of the Infield Box seating area, integrated into that seating area, and priced comparably to the other front-row ambulatory seats in that seating area.
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127. Because the creation of the Coors Clubhouse had the effect of removing front-row wheelchair-accessible seating from the Infield Box seating area and of pricing the only wheelchair-accessible seats near the infield at three times the level of comparable ambulatory seats, it decreased the level of compliance below that required by the Standards, in violation of section 4.1.6(1)(a) of the Standards. IV. Remedies
A. Injunction 128. Defendant is in violation of 42 U.S.C. §§ 12182 and 12183 of the ADA, and their implementing regulations, because the Lower Level Box seating areas does not have wheelchairaccessible seating that is integrated and dispersed, with comparable prices and lines of sight, and because Defendant has reduced the accessibility of Coors Field below that required by the Standards. 129. Pursuant to 42 U.S.C. § 12188(a)(2), Defendant is ordered to remedy this violation by either
a. Selling six wheelchair-accessible and six companion seats in the Coors Clubhouse for the same price as Infield Box seats.5 Defendant may elect not to provide Coors Clubhouse amenities with these seats, but -- because such facilities are available to nondisabled patrons in ambulatory seats in

5

Cf. Paralyzed Veterans, 950 F. Supp. at 404 n.24 (noting that one arena had

“cured” the lack of wheelchair-accessible seating in a less-expensive section by offering

accessible seats in a more-expensive section for the less-expensive price).

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the Lower Level Box seating areas -- must permit occupants of these seats to use the restroom closest to the seats. For the same reason, although Defendant need not provide free food and non-alcoholic beverages to the occupants of such seats, it must permit those occupants to purchase food and beverages, as well as alcoholic beverages, from Coors Clubhouse waitstaff. and/or b. Installing twenty wheelchair-accessible and twenty companion seats in the front of two separate sections of the Lower Level Box seating areas before the commencement of the 2005 Major League Baseball season. One section (containing ten wheelchair-accessible and ten companion seats) must be an Infield Box section; the other may be either a Midfield Box section or an Outfield Box section. The seats must comply with the requirements of section 4.33.3, for example, governing companion seating and with the remainder of the requirements of the Standards. 130. Defendant is further ordered to ensure that any seats constructed or repriced pursuant to Paragraph 128 above are made available for sale to individuals with disabilities on the same terms as ambulatory seats in the Infield Box section (or, in the case of seats installed in the Midfield or Outfield Box sections, on the same terms as ambulatory seats in the corresponding section) are made available to individuals without disabilities. Specifically, Defendant shall not limit the sales of any such seats to the day of game, and shall advertise and
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publicize their presence and availability to the same extent and on all charts and in all media in which the availability of ambulatory seats in the Lower Level Box seating areas are advertised or publicized.
131. Finally, Defendant is ordered to train its staff and contractors concerning the availability of any such seats to ensure that, when patrons inquire concerning the availability of such seats, they receive accurate information.
B. Attorneys’ Fees and Costs 132. Plaintiffs are the prevailing parties in this litigation, as that term is used in 42 U.S.C. § 12205. As such, they are entitled to recover their attorneys’ fees, including litigation expenses, and costs.

Respectfully submitted, FOX & ROBERTSON, P.C.

________________________ Timothy P. Fox Amy F. Robertson 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs
Dated: March 15, 2004

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

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Certificate of Service I hereby certify that on March 15, 2004, copies of Plaintiffs’ Proposed Findings of Fact and Conclusions of Law were served by first-class mail, postage prepaid, on:
K. Preston Oade, Esq. Holme, Roberts & Owen, LLP 1700 Lincoln Street Suite 4100 Denver, CO 80203
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-WY-0034-AJ (MJW)
COLORADO CROSS-DISABILITY COALITION, a Colorado corporation, JEREMY HUDSON, and JAMES HUDSON,
Plaintiffs,
v.
COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,
Defendant.
CARRIE ANN LUCAS, for herself and as next friend of HEATHER REBEKAH LUCAS, SHERWOOD OWENS, for himself and as next friend of NICHOLAS OWENS, KYLE STUBBS, ROANNE KUENZLER, and EVAN STUTMAN,
Plaintiffs,
v.
COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,
Defendant.
PLAINTIFFS’ SURREPLY BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, by and through their counsel, hereby submit their Surreply Brief in Opposition
to Defendant’s Motion for Partial Summary Judgment.
Defendant’s cut and paste approach to Section 4.33.3 is inconsistent with the way that
provision has been interpreted and applied by courts, the Department of Justice and the Access

Board. In its Opening Brief, Defendant asked this court to interpret the Bleacher/Balcony Exception to Section 4.33.31 in isolation from the remainder of that section and the statute it implements. In that brief, Defendant relied on -- and attached -- the ADAAG Manual’s interpretation of that exception.2 In response, Plaintiffs quoted the ADAAG Manual’s language expressly stating that the Bleacher/Balcony Exception does not excuse compliance with other provisions of Section 4.33.3, and explained why Coors Field does not comply with these provisions. Defendant’s Reply Brief is devoted to asking this Court to ignore the explicit language of the authority on which it originally relied.
In its motion, Defendant made two separate arguments: (1) that the Bleacher/Balcony Exception applied to the Lower Level Box seating areas at Coors Field; and (2) that the effect of that exception was to permit Defendant to cluster seats at the back of all of the Lower Level Box seating areas. Plaintiff addressed both of those arguments and provided authority rebutting both. In its Reply Brief, Defendant significantly misrepresents the content of Plaintiffs’ Opposition to Defendant’s Motion for Partial Summary Judgment (“Pls.’ Opp.” or “Opposition Brief”).
For these reasons, Plaintiffs submit this Surreply. Section 4.33.3
For the Court’s reference, Section 4.33.3 of the Department of Justice Standards for Accessible Design (“Standards”), 28 C.F.R. pt. 36, app. A, § 4.33.3, reads in relevant part:

1

28 C.F.R. pt. 36, app. A, § 4.33.3.

2

ADAAG Manual: a guide to the Americans with Disabilities Act Accessibility

Guidelines (“ADAAG Manual”) at 117 (Architectural and Transportation Barriers Compliance

Board, 1998) (Def.’s Mot. for Partial Summ. J. (“Def.’s Mot.” or “Opening Brief”), Attach. B.)

-2-

[w]heelchair 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 for members of the general public. . . . At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. . . .
EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress.
The second paragraph will be referred to herein as the “Bleacher/Balcony Exception.”
1. The Bleacher/Balcony Exception Does Not Apply to the Lower Level Box Seating Areas at Coors Field.
The Bleacher/Balcony Exception does not apply to sections 110 through 150 (the “Lower
Level Box seating areas”) at Coors Field,3 and Plaintiffs cited authority to support that
conclusion in their Opposition Brief. (See id. at 20 n.14.) Plaintiffs were willing to assume it
applied because it is clear that -- even if it did -- the conclusion Defendant draws therefrom is
incorrect. (See id. at 19-29.) The fact that Defendant labels Plaintiffs’ assumption a concession
does not make it so. (See Reply Brief at 4.)
As Plaintiffs explained in their Opposition Brief, the ADAAG Manual -- on which
Defendant relied in its Opening Brief -- makes clear that the Bleacher/Balcony Exception applies
“only [in] discrete parts of an assembly seating area” often “situated high above the performing
area.” ADAAG Manual at 117. The Department of Justice (“DOJ”) concurs:
The government . . . asserts that the clustering exception is intended to have very limited application to discrete parts of assembly areas, such as balconies, bleachers, and the like. These seating areas are unique, it says, in that they are almost always situated high above

3

See Robertson Decl. Ex. 1 (seating chart).

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the spectacle to be observed (i.e., where the sight lines almost always exceed five percent). Fiedler v. Am. Multi-Cinema, Inc., 871 F. Supp. 35, 38-39 (D.D.C. 1994). Indeed, Defendant concedes this point in its Reply Brief, when it admits that the Bleacher/Balcony Exception was intended to address “facilities . . . ‘situated high above the spectacle to be observed.’” (Reply Brief at 7 (quoting Pls.’ Opp. at 20).) That would not include the Lower Level Box seating areas -- especially the front rows of those areas -- at Coors Field. These areas are not “high above” the field, but rather immediately adjacent to it. Defendant’s expert agrees that the Infield Box seating areas at Coors Field are not bleachers or balconies. (Salmen Dep. at 122-23 (Pls.’ Opp. Ex. 27)). The Bleacher/Balcony Exception simply does not apply in this case. 2. The Bleacher/Balcony Exception Does Not Excuse Defendant from the Requirements of Integration, Comparable Admission Prices and Dispersion. Even if it applies, the Bleacher/Balcony Exception does not permit Defendant to cluster all wheelchair-accessible seats in the Lower Level Box seating areas at the rear of each section. In its Reply Brief, Defendant asserts that “Standard 4.33.3 expressly permits clustering at the top of seating sections, and so complaints about ‘integration’ and ‘dispersal’ and ‘pricing’ that flow from clustering cannot be cognizable under the ADA.” (Reply Brief at 2.) Defendant describes the violation of the integration, dispersal and line of sight requirements as the “natural and inevitable consequence” of clustering pursuant to the Bleacher/Balcony Exception. (See id. at 8; see also id. at 9 (segregation is a “consequence of the exception”).)
-4-

This is completely rebutted by the authority attached to Defendant’s Opening Brief. The ADAAG Manual -- mention of which is conspicuously absent from Defendant’s Reply Brief -states that the Bleacher/Balcony Exception “is not an exemption from requirements for integrated or companion seating or choice in admission prices. Where dispersion is feasible, it must be achieved.” Id. at 117 (Def.’s Mot., Attach. B.)
The Access Board’s interpretation in the ADAAG Manual does not, contrary to the Defendant’s argument, make the Bleacher/Balcony Exception meaningless. (See Reply Brief at 12.) The exception is of course meaningful in the limited context in which it was intended to apply: bleachers and balconies. Even if it applies outside that context, it would have meaning. Section 4.33.3 requires dispersal of wheelchair-accessible seats “throughout all seating areas.”4 The Bleacher/Balcony Exception excuses dispersal to the middle tiers of stepped seating, and permits it to be clustered “on levels having accessible egress.” Standards § 4.33.3 (emphasis added). At Coors Field -- again, assuming counterfactually that the exception applies -- this would excuse the placement of wheelchair-accessible seating in the middle of the Lower Level Box seating areas and require it at the field and concourse levels.5

4

Department of Justice, “Accessible Stadiums” at 1 (Defs.’ Mot., Attach. D).

5

Defendant continues to rely on Meineker v. Hoyts Cinema Corp., 216 F. Supp. 2d

14, 19 (N.D.N.Y. 2002) and asserts that it permits clustering only at the back. (Reply Brief at 5.)

Plaintiffs demonstrated in their opposition brief that the Meineker court in fact endorsed a

configuration in which wheelchair-accessible seats were clustered at the front and back of the

seating area. (Pls.’ Opp. at 24-25.) This suggests that the Bleacher/Balcony Exception works

precisely as Plaintiffs argue: it excuses the placement of seats in the middle tiers, and permits

clustering at the front and back.

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3. Defendant Was Required to Comply with the Standards During the Design and Construction of Coors Field. Defendant argues that the Standards do not apply to buildings under construction because
such buildings cannot be public accommodations and “it makes no sense to think that the exception is about where disabled patrons will be able to sit while a facility is under construction.” (Reply Brief at 5.) This argument is not only facially silly -- architectural standards always apply during construction to permit a facility to be used after it is constructed -it is contradicted by the plain language of the ADA and its implementing regulations.
Title III of the ADA defines prohibited disability discrimination to include “a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1) (emphasis added) (the “New Construction Requirement”). This provision requires compliance with the Standards, including Section 4.33.3. 28 C.F.R. § 36.406(a). The statute could not be clearer: facilities built after January 26, 1993 must be designed and constructed -- not merely evaluated after the fact -- to comply with the Standards.
This is best demonstrated by reference to the only defense to the New Construction Requirement. The only time compliance with the Standards is excused is where it is “structurally impracticable,” 42 U.S.C. § 12183(a)(1), that is, “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) (emphasis added), see also Standards § 4.1.1(5)(a) (same). Thus, the only defense to the New Construction Requirement is based exclusively on the condition of the
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terrain, that is, the raw ground on which the facility is to be built. There is no defense to having ignored the Standards during the design and construction process.
Defendant wants to rewrite the New Construction Requirement to add an “Oops!” defense, as in “Oops! We forgot to provide accessible egress to the field level of the Lower Level Box seating areas.” Coors Field was required to be designed and constructed with accessible egress to the field level in the Lower Level Box seating areas. Section 4.33.3 requires dispersal “throughout all seating areas,”6 which would require wheelchair-accessible seats “throughout” the Lower Level Box seating areas, including the front of those seating areas. The Standards require that “[a]t least one accessible route . . . shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility.” Standards § 4.1.3(1). That is, because wheelchair-accessible seats were required at field level, they had to be served by an accessible route, unless it was, during construction, structurally impracticable to do so.7
In asking the Court to evaluate the Bleacher/Balcony Exception as if accessible egress were only possible at concourse level -- that is, where it currently exists at the rear of the Lower Level Box seating areas -- Defendant is asserting the Oops! defense. It is arguing for the ability to build New Construction out of compliance with the Standards (here, without accessible egress at field level), and then -- in response to litigation challenging this violation -- to measure

6

Department of Justice, “Accessible Stadiums” at 1 (Defs.’ Mot., Attach. D).

7

Defendant did not assert or prove the structurally impracticable defense. See

Plaintiffs’ Motion in Limine to Preclude Defendant from Introducing Evidence Relating to the

Question Whether it Would Be Feasible to Provide Wheelchair-Accessible Seating Next to the

Field (which is incorporated herein by reference).

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compliance by the status quo post-construction, rather than assessing -- as the law requires -whether the facility was properly designed and constructed in the first place.
There is no Oops! defense to the New Construction Requirement, and to create one where it does not exist would undermine the entire purpose of that requirement: to ensure that facilities built after the ADA are “readily accessible to and usable by” individuals with disabilities. 42 U.S.C. § 12183(a)(1). 4. Section 4.33.3 Must Be Read as a Whole.
It is not sufficient that wheelchair-accessible seating is physically provided at field level in the Coors Clubhouse, when those seats are priced at three to four times the price of most ambulatory seats at field level. Nondisabled patrons can sit in one of 383 front row seats or 1,996 seats in the first five rows of the Lower Level Box seating areas8 for prices under $38. In order to have a comparable seat -- that is, one next to the field -- patrons with disabilities must pay $100. This violates the requirement that Defendant provide “a choice of admission prices . . . comparable to those for members of the general public.” Standards § 4.33.3.
Defendant attempts to justify its price discrimination by arguing that each requirement of Section 4.33.3 should be read in isolation. (Reply Brief at 10-11.) In its view, for example, it is sufficient if Coors Field simply offers a “range of admission prices” for patrons with disabilities. (Id. at 11.) This simply misstates the regulation: Section 4.33.3 requires “a choice of admission prices . . . comparable to those for members of the general public,” not merely a “range of admission prices.” In addition, given that Section 4.33.3 is implementing the requirement that

8

See Robertson Decl. Ex. 32 at 2.

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Defendant provide “full and equal enjoyment” of its “goods, services, facilities, privileges, advantages, or accommodations,” 42 U.S.C. § 12182(a) (emphasis added), it is clear that it requires Defendant to provide comparable seats at comparable prices. Requiring merely a “range” of prices and reading the requirement in isolation from the requirements of integration, comparable lines of sight and dispersal would produce the absurd result that Coors Field could charge $10 more for each wheelchair-accessible seat than it does for an ambulatory seat in the same section. The prices would still represent a “range,” but would not be “comparable to those for members of the general public.”
To avoid such absurd results, courts have properly read Section 4.33.3 as a whole and in light of the general anti-discrimination mandate of the ADA. One court has held, for example, that dispersal requires that “‘wheelchair seating locations . . . be provided in a number equal to approximately one percent of the seats in each price range, level of amenities, and viewing angle.’” Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 709 & n.9 (D. Or. 1997) (citations omitted; emphasis added). That court went on to explain:
I agree that wheelchair spaces ordinarily must be available in each ticket price category. However, that by itself will not always be enough to completely satisfy the requirement in Standard 4.33.3 that in large assembly areas wheelchair spaces must be an integral part of the seating plan and be dispersed so as to provide wheelchair users with a choice of sightlines and ticket prices comparable to those available to the general public. Id. at 709; see also Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs., P.C., 950 F. Supp. 393, 404 (D.D.C. 1996) (“Dispersal requires a choice of various seating areas, good and bad, expensive and inexpensive, which generally matches those of ambulatory spectators.”). That is, the dispersal requirement must be interpreted with reference to the requirement for
-9-

comparable prices and viewing angles. Ultimately, Section 4.33.3 is “intended to assure disabled patrons seats of ‘comparable’ quality to those provided for members of the general public,” United States v. Cinemark USA, Inc., 348 F.3d 569, 576 (6th Cir. 2003), petition for cert. filed, No. 03-1131 (U.S. Feb. 4, 2004). The concept of “quality” in seating naturally embraces all of the relevant factors.
Reading Section 4.33.3 as a whole does not make any of its requirements “meaningless or superfluous.” (See Reply Brief at 11.) Rather, read together, the requirements of Section 4.33.3 effectuate the language of the statute they implement: to ensure “full and equal enjoyment” of the “goods, services, facilities, privileges, advantages, [and] accommodations” of Coors Field. 42 U.S.C. § 12182(a); see Cinemark, 348 F.3d at 576 (interpreting Section 4.33.3 in light of the “full and equal enjoyment” requirement); United States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73, 90 (D. Mass. 2003) (noting the “rule that regulations be interpreted in a manner consistent with the principles of the underlying statute” and interpreting Section 4.33.3 in light of the statutory requirements for integration and equality.) 5. The Drawing on Page 4 of Defendant’s Brief Illustrates Lines of Sight Over
Standing Spectators, not the Bleacher/Balcony Exception. Defendant cut and pasted the illustration from page two of the Department of Justice’s “Accessible Stadiums” document into its Opening Brief without its caption or surrounding text. (See Def.’s Mot. at 4.) This has enabled Defendant to misrepresent the purpose of the illustration. In several places in its Reply Brief, Defendant asserts that this illustration demonstrates “clustering.” (See, e.g., Reply Brief at 5 (the DOJ “illustration showing the effect of the exception”), 8 (“The DOJ illustration of the effect of vertical clustering . . .”).) This is
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simply wrong. The illustration in question -- when viewed in its original context -- appears immediately below a discussion of how to provide lines of sight over standing spectators, and is captioned accordingly. “Accessible Stadiums,” at 2 (Defs.’ Mot. Attach D). It is unrelated to the Bleacher/Balcony Exception or clustering, concepts which are not addressed in the “Accessible Stadiums” document.9 6. Providing Wheelchair-Accessible Seating at the Back of the Lower Level Box
Seating Areas Does Not Violate the ADA. Providing Wheelchair-Accessible Seating Only at the Back of the Lower Level Box Seating Areas Does Violate the ADA. Defendant defends the presence of wheelchair-accessible seating at the back of the Lower Level Box seating areas by stating that it is required to place such seats there. (Reply Brief at 9.) Plaintiffs do not ask for the removal of these wheelchair-accessible seats. Rather, because the only seats in the Lower Level Box seating areas are in the back, Defendant is required to provide additional wheelchair-accessible seating in the front of those seating areas.

9

See also Pls.’ Opp. at 26-28 (demonstrating that the Bleacher/Balcony Exception

is unrelated to the question of lines of sight over standing spectators).

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Conclusion For the reasons set forth above and in Plaintiffs’ Opposition Brief, Plaintiffs respectfully request that Defendant’s Motion for Partial Summary Judgment be denied.

Respectfully submitted, FOX & ROBERTSON, P.C.

________________________ Amy F. Robertson Timothy P. Fox 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs
Dated: March 1, 2004

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-WY-0034-AJ COLORADO CROSS-DISABILITY COALITION, a Colorado Corporation, JEREMY HUDSON, and JAMES HUDSON,
Plaintiffs,

FILED
UNITED STATES DISTRICT COURT DENVER, COLORADO
04/02/04
GREGORY C. LANGHAM, CLERK

v.

COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,

Defendant.

Civil Action No. 03-WY-1097-AJ CARRIE ANN LUCAS, for herself and as next friend of HEATHER REBEKAH LUCAS; SHERWOOD OWENS, for himself and as next friend of NICHOLAS OWENS; KYLE STUBBS; ROANNE KUENZLER, and EVAN STUTMAN,
Plaintiffs, v. COLORADO ROCKIES BASEBALL CLUB, LTD., a Colorado limited partnership,
Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
The defendant's Motion for Partial Summary Judgment and the plaintiffs'
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responses in opposition to the motion came on for hearing March 11, 2004. At the hearing, counsel for the parties appeared and presented their respective arguments. The Court, having considered the arguments of counsel, the parties' written submissions and accompanying materials, the applicable law, the pleadings of record, and being fully advised, FINDS that the defendant's motion for partial summary judgment should be DENIED, for the reasons stated below.
Background In these two consolidated cases, the plaintiffs assert that defendant has violated the Americans with Disabilities Act (“ADA”) in certain respects, particularly including the failure to provide appropriate seating to those required to use wheelchairs when attending a baseball game in the facility used by the Colorado Rockies. The defendant, not surprisingly, disagrees with plaintiffs' contentions. For the reason that this case will soon be coming before the Court for a bench trial in April of 2004, which will require more thorough and fully developed background and factual recitations in the final Findings of Fact and Conclusions of Law, this Order will not spend significant time and resources on such factual development.
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In the motion considered herein, Defendant (“Rockies”) has moved for partial summary judgment on a single issue, stated to be as follows: whether accessible seating for the disabled may be clustered at the top of certain seating sections in Coors Field. The Rockies contend that such clustering is permitted by governing federal regulations, in particular that regulation entitled “Standard 4.33.3.” 28 C.F.R. Part 36, App. A, § 4.33.3.
The Rockies argue that the ADA requires places of public accommodation to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(1). Standard 4.33.3 was adopted following direction from Congress to flesh out these principles, and governs seating for disabled. The Rockies contend that Standard 4.33.3 requires accessible seating to be “integral” to any “fixed seating plan” and that accessible seating must be provided in “more than one location.” Accessible seating must be dispersed both horizontally and vertically. (Horizontal dispersal is placing accessible seats “around” a stadium, the Rockies assert, so disabled patrons have a choice of seating sections; vertical dispersal means placing accessible seats throughout a stadium or arena, so disabled patrons have a choice of rows or levels in which to sit.)
The Rockies assert vertical dispersal raises unique issues for wheelchair users and those required to comply with the ADA in sporting arenas where fans
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may be expected to stand at exciting moments. Vertical dispersal requires a considerable increase in height from row to row to make sure a seated patron can see over the heads of those in front of him or her, with perhaps even greater increases in height where spectators in front might be expected to stand up.
The Justice Department has adopted an express exception to the “vertical dispersal” requirement of Standard 4.33.3 which the Rockies contends applies in this case. The exception provides:
EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies, and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress. In the Rockies' view, this exception permits accessible seating to be clustered at the top of seating sections so disabled patrons have a view over the heads of other persons. The Rockies believe that the exception permits Coors Field to cluster accessible seats at the top, as depicted in page 4 of the Rockies' brief. The Rockies argue the exception applies to any “area” and permits clustering whenever areas have “sight lines that require slopes of greater than 5 percent.” The exception permits clustering “where aisles are sloped or stepped and where the pitch of the line of sight is greater than 5%,” which is the case at Coors
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Field. The defendant contends that, as a matter of law, Coors Field may vertically cluster accessible seating at the top of seating sections.
The plaintiffs oppose the motion for partial summary judgment. The plaintiffs argue that under the ADA, Coors Field must provide wheelchair accessible seating which is integrated into the seating plan of the arena, dispersed throughout all seating areas and providing lines of sight and choices of admission prices comparable to those for the general public. Coors Field was constructed after the effective date of the ADA. Initially, there were only a small number of wheelchair accessible seats near the infield on the lower level and the rest of the wheelchair accessible seats in those seating areas are behind the back row under an overhang. Although in plaintiffs' view this seating arrangement did not fully satisfy the integration, dispersal and comparable line of sight requirements of the ADA, the Rockies charged the same price for these seats as it did for ambulatory seats near the infield, permitting some fans with disabilities to sit near the infield for the same price as non-disabled fans.
However, in 2001, the Rockies created a high-priced luxury seating area which absorbed the only wheelchair accessible seats near the infield. After this change, fans in wheelchairs cannot now sit near the infield unless they are
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willing to pay “luxury” prices (over $100) for a ticket, while non-disabled fans can obtain a seat in the infield at non-luxury prices significantly less than $100. The other available option to fans in wheelchairs desiring to sit near the infield is to sit behind the back row of ambulatory seating in the infield seating areas. This violates the ADA, in plaintiffs' view.
Plaintiffs argue the exception upon which the Rockies have relied to support their motion for partial summary judgment is without merit, because (1) it does not excuse compliance with the requirements for integration, comparable prices and dispersal for wheelchair accessible seating (which requires wheelchair accessible seating in front and back of the seating areas at issue); (2) the exception requires the defendant to provide equivalent accessible seats on levels where accessible egress exists and because accessible egress does exist at field level, the Rockies may not cluster wheelchair accessible seating behind the back row; and (3) if the Court does not rule in favor of plaintiffs at this time, there remain disputed issues of material fact as to whether the defendant has complied with the ADA.
At present, the “Infield Box” seating area, including sections 120 through 141, on the lower level, includes seats sold for $27-38. The “Midfield Box” includes Sections 116-119 and 142-145 on the lower level, with 2003 seats sold
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for $21.50-32. The “Outfield Box” seating includes sections 110-115 and 146150 on the lower level, with 2003 seats sold for $20-32. These areas have been collectively referred to as the “Lower level Box” seating area -- all with seats selling for $38 or less in 2003. The only wheelchair-accessible seating in the Lower Level Box is behind the back row of each section, in most cases 38 rows from the field.
When Coors Field was constructed, it had 8 wheelchair and 9 companion seats in the front row of Section 132 of the Infield Box seats, directly behind home plate (“Backstop Accessible Seats”). These were the only wheelchair accessible seats near the front of any of the Lower Level Box seating area, and from 1995 to 2000, these seats sold for the same price as all other Infield Box seats. In 2001, the Rockies converted the first few rows of seating behind home plate, including the Backstop Accessible Seats, into a premium seating area called “Coors Clubhouse.” This area includes 168 ambulatory seats and the 8 wheelchair accessible and 8 companion seats. Ambulatory seats in the front row of Coors Clubhouse sell for $150; the other rows are $135. The price includes a pre-game buffet, non-alcoholic beverages, in-seat wait staff service and preferred parking and are largely sold on a season ticket basis. Now that the Backstop Accessible seats are part of the Coors Clubhouse seating area,
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they cost $100. This prices includes the amenities listed above except the pregame buffet. These tickets are sold only on the day of the game; fans with disabilities cannot purchase them in advance. These are still the only wheelchair accessible seats near the infield; Coors Field has 210 ambulatory seats in the first row the Infield Box seating area and 1,017 ambulatory seats in the first five rows of that seating area (all $27-38). There are 383 front row ambulatory seats in the Lower Level Box seating area; 1,996 ambulatory seats within the first five rows of those areas, all $38 or less. In 2001, a wheelchair using fan who wanted to sit at Coors Field had to pay approximately three times as much as most non-disabled patrons to sit near the infield.
Wheelchair accessible seats behind the back rows of Sections 114-126 and 135-147 of the Lower Level Box seating areas are under the overhang created by the Club Level seating area; wheelchair accessible seats behind Sections 127-134 are under the somewhat less severe overhang of the press box. Plaintiffs contend that fans in the wheelchair accessible seats under the overhang have restricted sight lines. They are unable to see pop foul balls, pop fly balls and home runs. The trajectory of a high fly ball is obstructed by the overhang. Few rows of the ambulatory seats in the Lower Level Box are similarly affected by the overhang. All wheelchair accessible seats are
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obstructed by the overhang; 9,225 ambulatory seats are completely unaffected by that obstruction. Wheelchair accessible seats behind the back row of the Lower Level Box do not provide views or lines of sight comparable to ambulatory seats in the front row or close to the infield.
Plaintiffs argue that Coors Field has 406 wheelchair accessible seats. Of these, only 12% are located at the front of their respective seating areas; the remaining 88% are located in the back of their respective seating areas. Only 16% of the wheelchair accessible seats on the Lower Level of Coors Field are in front of the seating area; these seats are either the $100 Backstop Accessible Seats or seats beyond the outfield in the Pavilion seating areas.
Plaintiffs argue that the ADA requires the defendant to provide wheelchair accessible seats dispersed throughout the Lower Level Box seating areas, located so as to provide a choice of lines of sight and views comparable to those of the general public and integrated into the seating plan, and offered at prices comparable to those offered to the general public. In their brief, plaintiffs assert that “Coors Field does not currently satisfy these requirements. Defendant can remedy this situation by constructing wheelchair-accessible seats near the infield in the non-luxury Lower Level Box seating areas. However, Plaintiffs would be satisfied with a resolution in which Defendant
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simply sells some of the Backstop Accessible Seats at Infield Box prices, as it did from 1995 to 2000.” Plaintiffs' Brief at 9-10.
Plaintiffs argue the exception the Rockies rely upon, if it applies, only excuses defendant from constructing wheelchair accessible seats in the middle rows of the Lower Level Box seating areas; it permits clustering at the back and front of these areas. It does not, as defendant has argued, permit the Rockies to cluster all of its wheelchair accessible seats only at the back of the seating area. It must provide wheelchair accessible seats at all levels having accessible egress, including the field level of Coors Field where there does exist accessible egress. Finally, plaintiffs urge that there are questions of fact in dispute, depending on the relative quality of wheelchair accessible seats in the back, and the ambulatory seats in the front of the at-issue seating areas.
Discussion The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., was passed in 1990. Title III of the Act prohibits disability discrimination by those who own or operate places of public accommodation. Title III addresses architectural accessibility. To comply, a facility must be built in conformance with Department of Justice (“DOJ”) Standards for Accessible Design. 28 C.F.R.
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Pt. 36, App. A. In passing the ADA, Congress recognized that “[h]istorically,
persons with disabilities have been relegated to separate and often inferior
services. For example, seating for persons using wheelchairs is often located
in the back of auditoriums. In addition to providing inferior seating, the patron
in a wheelchair is forced to separate from family or friends during the
performance.” H.R. Rep. No. 101-485, pt. 2 at 102 (1990).
DOJ's Standard 4.33.3, governing assembly areas such as Coors Field,
requires:
[w]heelchair 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 for members of the general public. . . . At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location.
An exception is provided:
Accessible viewing positions may be clustered for bleachers, balconies and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress.
Plaintiffs have argued that the “Bleacher/Balcony Exception” is “not an
exemption from requirements for integrated or companion seating or choice in
admission prices. Where dispersion is feasible, it must be achieved[,]” citing
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ADAAG Manual at 117. Plaintiffs assert this exception only excuses defendant from dispersing wheelchair accessible seats to rows or tiers in the middle of the Lower Level Box seating areas; it does not excuse it from providing wheelchair accessible seats at comparable prices on levels having accessible egress, including the front of those seating areas.
Standard 4.33.3 requires dispersed seating throughout all seating areas and a choice of admission prices and views comparable to those for the general public. The Court has reviewed the cases cited by the parties, as well as others, and finds that the plaintiffs have presented the more persuasive arguments. At Coors Field, choices of wheelchair patrons do not generally match those of ambulatory spectators. To sit near infield, they must pay at least $100, while non-disabled fans can do so for $20-38. All wheelchair accessible seats in the Infield Box and Midfield Box, and many in the Outfield Box, are under an overhang; non-disabled patrons have a choice of thousands of seats in those areas not obstructed by the overhang.
Locating the wheelchair accessible seats at the back of the Lower Level does not provides comparable lines of sights for wheelchair patrons. These seats are also not integrated. Section 4.33.3 requires wheelchair areas to be an integral part of any fixed seating plan, and has been construed by the DOJ
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to require “<theater operators to provide wheelchair seating in the area of the theater where most members or the general public usually choose to sit.”' Meineker v. Hoyts Cinemas Corp., 69 Fed.Appx. 19, 2003 WL 212510423, at *23 (2d Cir. 2003). At Coors Field, all wheelchair accessible seating in the Lower Level Box is at the back of the seating area, behind where most people sit, not among the general public seating. Choices of prices for wheelchair seats also are not comparable to those of the general public.
Here dispersal is feasible. It existed physically when the Infield Seating Box area was initially opened at Coors Field. It has been changed only by the application of the defendant's pricing policy. Wheelchair accessible seats with Field Level access cost three times as much as most ambulatory seats at or near Field Level.
Even if the exception is construed to permit clustering only at the back of a seating area, plaintiffs contend the defendant must provide accessible viewing locations equivalent to the infield box seats in the Coors Clubhouse -i.e., sell part of the Coors Clubhouse accessible seats at Infield Box prices. The effect of the exception, if applied as the defendant has urged, is to permit defendant to cluster wheelchair accessible seating at the back of the Lower Level Box seating area, thus denying fans with disabilities any seats equivalent
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to almost 2,000 ambulatory seats in the first five rows of these areas. The clear language of Standard 4.33.3 requires fans with disabilities be
provided lines of sight and prices comparable to those of non-disabled fans, and the ADAAG Manual states the exception is not an exception to comparable pricing requirement. According to an old saying, baseball is as American as Mom and apple pie. In a newly constructed public assembly area, a facility constructed specifically to enjoy that all-American activity, such as Coors Field, should be required to provide access to all Americans, disabled and nondisabled, and may not discriminate on the basis of disability in the full and equal enjoyment of Coors Field and the home team, the Colorado Rockies.
In the absence of evidence such as that likely to be presented at trial, this Court is reluctant to conclude at the motion stage of these proceedings that the Rockies have indeed provided their disabled fans with a viewing experience comparable to those of ambulatory patrons and fans of the home team. To the contrary, it appears the Rockies have not provided disabled fans with a comparable experience at Coors Field as that of non-disabled fans, although the Court declines to reach such a conclusion as a matter of law at this stage of the proceedings.
The Court discerns little that indicates the clustering exception to
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Standard 4.33.3 is intended to have more than limited application to discrete
parts of this particular public assembly area, such as balconies, bleachers and
the like. There are few cases specifically addressing the exception to Standard
4.33.3. The court in Berry v. Lowell, 2003 WL 2002050772 (D.Mass. 2003),
did consider the exception in a 4,700 seat ballpark in which all wheelchair
spaces were located in the last row of the ballpark. “Although only six stadium
sections are in the outfield, 58 percent of the wheelchair spaces are located
there. The premium box area and the sections behind home plate have no
handicapped accessible seating.” Id., at *1. The opinion provides:
First, plaintiffs contend that defendants have violated by ADA by designing and constructing a stadium in which all wheelchair spaces are located in the last row, with a disproportionate number in the outfield and none behind home plate and in the premium box section. The ADA Accessibility Guidelines (“ADAAG”), promulgated by the United States Department of Justice pursuant to 42 U.S.C. § 12186(b), have set the standard for ADA-compliant seating configurations at stadiums as follows: “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 for members of the general public.” 28 C.F.R. Part 36, App. A., § 4.33.3. The exception to the general rule is that “[a]ccessible viewing positions may be clustered for bleachers, balconies, and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress.” Id. the Department of Justice has further elucidated the standard in a technical assistance bulletin: ”Accessible seating must be an integral part of the seating plan so
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that people using wheelchairs are not isolated from other spectators or their friends or family.” Department of Justice, Accessible Stadiums 1 (1996). Additionally, “[w]heelchair seating must be provided in all areas including sky boxes and specialty areas . . . . [and] must be dispersed throughout all seating areas and provide a choice of admission prices and views comparable to those for the general public.” Id. A comparable line of sight “allows a person using a wheelchair to see the playing surface between the heads and over the shoulders of the persons standing in the row immediately in front and over the heads of the persons standing two rows in front.” Id. at 2.
The case law interpreting and applying the ADAAG provides a measure of support for plaintiffs. In Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 950 F. Supp. 393 (D.D.C. 1996), the builders of a basketball and hockey arena failed to comply with the ADA by “ghettoiz[ing]” many of the wheelchair spaces in the “end zone” areas. “Dispersal requires a choice of various seating areas, good and bad, expensive and inexpensive, which generally matches those of ambulatory spectators.” Id. at 404. The District of Oregon required horizontal and vertical dispersal of wheelchair seats at a large indoor arena because otherwise “an arena operator could simply designate a few token wheelchair seats in the better seating areas, and cluster the majority of wheelchair seats in the last row or in other undesirable locations. That is contrary to the Congressional intent in enacting Title III of the ADA.” Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 709 (D.Or. 1997). In holding that the wheelchair seats could not be clustered in the arena's “end zone” sections, the court noted that the Department of Justice had consistently interpreted Standard 4.33.3 “to require vertical and horizontal dispersal.” Id. at 708. In one letter, the Department advised:
In order to fulfill the requirement that comparable lines of sight and admission prices be provided in new construction, wheelchair seating locations . . . must be provided in a number equal to approximately one
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percent of the seats in each price range, level of amenities, and viewing angle. Thus, if there are 400 box seats located between first and third base, there should be approximately 4 wheelchair seating locations provided within the boxed seating areas located between first and third base. Id. at 708-09 n. 9 (quoting a November 21, 1994, letter from DOJ regarding Yakima County Stadium).
Defendants, on the other hand, argue that the dispersal requirement has been met because wheelchair spaces have been placed “in intermittent locations all the way around the Stadium.” They point to the exception to Standard 4.33.3 that allows the clustering of handicapped seating “for areas having sight lines that require slopes of greater than 5 percent.” They further note that the original stadium designs had only two ticket categories and that the Lowell Spinners designated certain seats as “premium box” only after the design and construction process was complete. [footnote omitted]
None of these arguments, however, defeats plaintiffs' contentions. The disproportionate number of seats in the outfield raises troubling issues regarding the ADA's dispersal requirements. The deposition testimony by a senior project manager for defendant HOK that the stadium could still be modified to give wheelchairs “accessible egress” to the front-row premium areas suggests that the 4.33.3 exception does not save defendants. Finally, regardless of who created the premium box section and when, the fact that these seats have been designated as especially desirable presents the strong possibility that disabled fans are being forced to watch their beloved Spinners from suboptimal locations.
Nevertheless, the flaws in defendants' arguments do not compel a ruling in plaintiffs' favor. At root, the key determination is whether plaintiffs are being “discriminated against on the basis of disability in the full and equal enjoyment of” LeLacheur Park. 42
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U.S.C. § 12182(a). Compared to the arenas in the cases cited by plaintiffs, the Spinners' stadium is tiny. While any right-thinking Portland Trailblazer or Washington Wizard fan would prefer to watch from center court as opposed to the “end zone” seats at their respective arenas, it is unclear whether the view varies much from section to section at a relatively intimate 5,000-seat stadium. [footnote omitted]. The issue of whether people in wheelchairs are truly deprived of a viewing experience comparable to that of ambulatory stadium-goers remains a disputed issue of fact. [footnote omitted]. Summary judgment, therefore, is inappropriate.
Berry v. City of Lowell, 2003 WL 22050772, *2-*3 (footnotes omitted).
This Court agrees with the analysis employed by the Berry v. City of
Lowell court. The Rockies may not “ghettoize” wheelchair spaces or designate
a few token wheelchair spaces in the luxury seating areas as has been done.
“<Dispersal requires a choice of various seating areas, good and bad, expensive
and inexpensive, which generally matches those of ambulatory spectators.”
Berry v. City of Lowell, 2003 WL 220508772 (D.Mass. 2003), quoting Paralyzed
Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 950 F.
Supp. 393 (D.D.C. 1996). See also Fiedler v. American Multi-Cinema, Inc., 871
F. Supp. 35, 38-39 (D.D.C. 1994) (discussing exception to Standard 4.33.3 and
stating “the exception to ADAAG Section 4.33.3 affords AMC no warrant to
consign its wheelchair patrons to the back of the Avenue Grand Theater.”).
Accordingly, for the foregoing reasons, the Court finds that the
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defendant's Motion for Partial Summary Judgment must be denied. There are genuine issues of material fact that preclude entry of summary judgment in favor of either party at the present time. It is therefore
ORDERED that the defendant's Motion for Partial Summary Judgment shall be, and is, DENIED.
Dated this 2th day of April, 2004. Alan B. Johnson UNITED STATES DISTRICT JUDGE SITTING BY DESIGNATION
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