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. e du/thir dc ir c uit_1999/299Filed November 5, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-5693 and 97-5764

WILLIAM CARUSO; ADVOCATES FOR DISABLED AMERICANS; Appellants in No. 97-5764

PARALYZED VETERANS OF AMERICA, Intervenor-plaintiff in d.c., Appellant in No. 97-5693

v.

BLOCKBUSTER-SONY MUSIC ENTERTAINMENT CENTRE AT THE WATERFRONT; BLOCKBUSTER CORPORATION; SONY MUSIC ENTERTAINMENT, Division of Sony Corporation of America

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 95-cv-03400) (District Judge: Honorable Joseph E. Irenas)

Argued: August 4, 1998 Decided: April 6, 1999 Petition for Panel Rehearing Granted and Opinion and Judgment Vacated November 4, 1999 Submitted on Petition for Panel Rehearing November 4, 1999

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges

(Opinion Filed: November 5, 1999)NIKI KUCKES

DAVID S. COHEN (ARGUED)

JODY MANIER KRIS Miller, Cassidy, Larroca & Lewin 2555 M Street, N.W. Washington, D.C. 20037

ANTHONY J. BRADY, JR. (ARGUED) 1 Alpha Avenue, Suite 36 Voorhees, N.J. 08043

Counsel for Appellants

NORMAN E. GREENSPAN (ARGUED) Blank, Rome, Comisky & McCauley One Logan Square Philadelphia, PA 19103

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

The Blockbuster-Sony Music Entertainment Centre ("E Centre") is a music and entertainment facility loca ted in Camden, New Jersey. An interior pavilion at the E-C entre provides fixed seating for 6,200 patrons, and an un covered lawn area located behind the pavilion can accommoda te approximately 18,000 spectators who either stand or sit on portable chairs or blankets.

Appellant William Caruso, a Vietnam veteran who use s a wheelchair as a result of his disability, attended a concert at the E-Centre on July 13, 1995. The following day

, Caruso and the Advocates for Disabled Americansfile d a complaint in federal district court alleging, inter alia, that the E-Center does not comply with Title III of the Americans with Disabilities Act (ADA), Pub.L. No. 101-336, 10 4 Stat. 327 (1990) (codified at 42 U.S.C. S 12181 et seq. ( 1994)), because: 1) the wheelchair areas in the pavilion do not provide wheelchair users with lines of sight over s tanding spectators and 2) the lawn area is not wheelchair accessible. The District Court granted summary judg ment

2in favor of the defendants on both claims.1 We now affirm

in part and reverse in part.

I.

Title III of the ADA protects individuals against discrimination "on the basis of disability in the f ull and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of publi c accommodation." 42 U.S.C. S 12182 (a). Title III re quires that newly constructed facilities be "readily acces sible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable." 42 U.S.C. S 12183. In order to carr y out these provisions, Congress has directed the Departm ent of Justice (DOJ) to "issue regulations . . . that incl ude standards applicable to facilities" covered by Titl e III. 42 U.S.C. 12186(b). Congress has further required that any standards included by the DOJ in its regulations "b e consistent with the minimum guidelines and requirem ents issued by the Architectural and Transportation Barr iers Compliance Board" ("Access Board"). 42 U.S.C. S 121 86(c).2

Pursuant to its statutory authority under Title III , the DOJ has issued numerous regulations, see 28 C.F.R. SS 36.101-36.608 (1998), one of which adopts the Ac cess Board's guidelines as the DOJ's own Standards for N ew

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1. Before entering final judgment, the District Cou rt granted a motion by the Paralyzed Veterans of America (PVA) to interven e as plaintiff solely for the purpose of appealing the District Court's r uling that the E-Centre does not need to provide wheelchair users sitting i n the pavilion with lines of sight over standing spectators.

2. The Access Board is a federal agency that was cr eated by the Rehabilitation Act of 1973. See 29 U.S.C.S 792(a). The Board is composed of 25 members: 13 public members appointed by the President, as well as officials of 12 federal agenc ies or departments. Id.

The Board's mission focuses on the elimination of a rchitectural, transportation, communication, and attitudinal barr iers confronting people with disabilities. See 29 U.S.C.S 792(b). Th e ADA directed the Access Board to issue "minimum guidelines" to suppl ement the Board's existing Minimum Guidelines and Requirements for Ac cessible Design. 42 U.S.C. S 12204)(a).

3Construction and Alterations ("Standards"). See 28 CFR

S 36.406 (referring to 28 C.F.R. S 36, App. A). Bot h of the issues in this case require us to interpret portion s of the

DOJ Standards.

A. Lines of Sight

Appellants contend that DOJ Standard 4.33.3, which was adopted after notice and comment, requires wheelcha ir seats in the E-Center pavilion to afford sightlines over standing spectators. Standard 4.33.3 provides:

Placement of Wheelchair Locations. Wheelchai r areas shall be an integral part of any fixed seating plan and shall be provided so as to provide peopl e with physical disabilities a choice of admission prices and lines of sight comparable to those for membe rs of the general public. They shall adjoin an accessi ble route that also serves as a means of egress in cas e of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating are a. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location.

. . .

28 C.F.R. S 36, App. A, 4.33.3.

Appellants first argue that the plain meaning of th e phrase "lines of sight comparable to those for memb ers of the general public" requires that "if standing spec tators can see the stage even when other patrons stand, wheelc hair users, too, must be able to see the stage when othe r patrons stand." PVA Br. at 23. While this argument has considerable force, it does not account for the res t of the language in Standard 4.33.3, which helps the reader to place the phrase "lines of sight comparable" in con text.

Standard 4.33.3 is entitled "Placement of Wheelchai r Locations" and includes at least two provisions con cerning the dispersal of wheelchair locations in facilities with fixed seating plans.3 In addition, one of these dispersal provisions

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3. Appellants concede that the provisions in 4.33.3 requiring a "choice of admission prices" and "more than one location" when "the seating capacity exceeds 300" concern dispersal of wheelcha ir areas throughout a facility. See PVA Reply Br. at 7.

4appears in the same sentence that contains the "lin es of

sight" requirement. Given this focus on the dispers al of wheelchair locations, it seems plausible to read th e "lines of sight comparable" requirement as follows: if a faci lity's seating plan provides members of the general public with different lines of sight to the field or stage (e.g ., lines of sight at a baseball game from behind the plate, on either side of the diamond, and from the outfield bleacher s), it must also provide wheelchair users with a comparabl e opportunity to view the field or stage from a varie ty of angles.4

Appellants reject this suggestion that the "lines o f sight" provision might require dispersal rather than verti cal enhancement, contending that such a reading would impermissibly render other portions of Standard 4.3 3.3 superfluous. They argue:

Standard 4.33.3 . . . contains an explicit d ispersal provision, wholly independent of the "compar able" line of sight provision. It requires, in pertinen t part, that "[w]heelchair areas . . . shall be provided so as to provide persons with disabilities a choice o f admission prices." For facilities, such as modern spor ts and entertainment venues, that offer tickets at a range of prices depending on seating location, disper sal of wheelchair locations is required by this pro vision. Moreover, a requirement for dispersal is als o derived from the language in Standard 4.33.3 that "[ w]hen the seating capacity exceeds 300, wheelchair spa ces shall be provided in more than one location." Cons truing the phrase "lines of sight comparable to those p rovided to members of the general public" as simply req uiring dispersal of wheelchair locations, as the E- Centre urges, is contrary to the plain language of that regulation and would deprive important parts of the regulation of any meaning.

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4. Although not discussed by the E-Centre, there mi ght be an additional, distinct reason for concluding that the language of Standard 4.33.3 does not clearly require sightlines over standing patron s: In light of the fact that Standard 4.33.3 concerns the design of "seatin g plans" and "seating areas," it seems entirely possible that the drafter s were assuming seated spectators and not addressing the issue of standing patrons.

5PVA Reply Br. at 6-7. This attempt to divorce the"l ines of

sight" requirement from the two provisions in 4.33. 3 that are indisputably about dispersion overlooks the pos sibility that the three provisions are designed to work toge ther so that: 1) at a minimum, facilities with over 300 sea ts provide at least two wheelchair locations and 2) larger fac ilities provide wheelchair users with the option of choosin g from among seats that afford a variety of views for a va riety of corresponding prices. Contrary to appellants' asser tion, this second result is not accomplished by the "choice of admission prices" language alone. For, if Standard 4.33.3 is read in piecemeal fashion as appellants suggest, a facility, regardless of its size and the number of views that it offers to the general public, would be able to place all w heelchair users in just two locations so long at it offers so me choice of prices in those locations. See Independent Livin g Resources v. Oregon Arena Corp., 982 F. Supp. 698, 743 n.61 (D. Or. 1997).

In the end, it seems that both interpretations of t he "lines of sight" language are plausible and would provide some benefit to wheelchair users. Appellants' reading wo uld benefit wheelchair users by allowing them to see wh en other patrons stand. The E-Centre's reading would b enefit wheelchair users by providing them with a greater opportunity to view a performance or event from a v ariety of viewpoints. Since both readings of the rule are plausible and are consistent with the ADA's purpose of enabli ng people with disabilities to share equally in the be nefits provided by a public accommodation, we conclude tha t the "lines of sight" language is ambiguous.

Appellants' second contention is that, even if Stan dard 4.33.3 is ambiguous, the court should follow the interpretation that has been given to the rule by t he DOJ. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 , 512 (1994) (explaining that an agency's interpretation of its own regulation "must be given controlling weight unless it is plainly erroneous or inconsistent with the regulati on") (internal quotations omitted); Menkowitz v. Pottsto wn Memorial Medical Center, 154 F.3d 113, 123 (3d Cir. 1998) (DOJ Technical Assistance Manual entitled to defere nce). But see id. at 525 (Thomas, J., dissenting)("giving

6substantive effect to . . . a hopelessly vague regu lation . . .

disserves the very purpose behind the delegation of lawmaking power to administrative agencies"); John F. Manning, Constitutional Structure and Judicial Defe rence to Agency Interpretations of Agency Rules, 96 Colum. L . Rev. 612 (1997)(urging reexamination of the principle of judicial deference to agency interpretations of regulations)

. Specifically, appellants rely on the following stat ement appearing in a 1994 Supplement to the DOJ's Technic al Assistance Manual (hereinafter "1994 TAM Supplement ):

In addition to requiring companion seating a nd dispersion of wheelchair locations, [Standar d 4.33.3] requires that wheelchair locations provide p eople with disabilities lines of sight comparable to th ose for members of the general public. Thus, in asse mbly areas where spectators can be expected to st and during the event or show being viewed, the wheelcha ir locations must provide lines of sight over s pectators who stand. This can be accomplished in many ways

, including placing wheelchair locations at th e front of a seating section, or by providing sufficient additional elevation for wheelchair locations placed at the rear of seating sections to allow those spectators t o see over the spectators who stand in front of them.

1994 DOJ TAM Supp. P III-7.5180, Conditional App. a t 49 (emphasis added).

In response, appellees maintain that the 1994 TAM Supplement is not an interpretive rule entitled to deference, but rather, an invalid attempt to adopt a new subst antive requirement without notice and comment. The E-Centr e bases this argument on the history of Standard 4.33 .3, which, according to the E-Centre, reveals that the rule was not intended to address the issue of lines of sight over standing patrons.

Standard 4.33.3 was originally proposed by the Acce ss Board on January 22, 1991. At that time, the provis ion provided:

Placement of Wheelchair Locations. Wheelchai r areas shall be an integral part of any fixed seating plan and shall be dispersed throughout the seatin g area.

7They shall . . . be located to provide lines of sight

comparable to those for all viewing areas.

56 Fed. Reg. 2380. In its public notice regarding t he proposed rule, the Access Board explicitly invited comments on the issue of sightlines over standing spectators :

Section 4.33.3 provides that seating locatio ns for people who use wheelchairs shall be disperse d throughout the seating area and shall be loc ated to provide lines of sight comparable to those f or all viewing areas. This requirement appears to b e adequate for theaters and concert halls, but may not suffice in sports arenas or race tracks where the audie nce frequently stands throughout a large portion of the game or event. In alterations of existing sports arenas, accessible spaces are frequently provided at the lower part of a seating tier projecting out above a lower seating tier or are built out over existing seats at the top of a tier providing a great differential in height. These solutions can work in newly constructe d sports arenas as well, if sight lines relative to s tanding patrons are considered at the time of the in itial design.

The Board seeks comments on whether full lin es of sight over standing spectators in sports are nas and other similar assembly areas should be requi red.

56 Fed. Reg. 2314 (emphasis added).

On February 22, 1991, the DOJ published a notice in which it proposed to adopt the Access Board's Propo sed Guidelines "with any amendments made by the [Access Board] during the rulemaking process." 56 Fed. Reg. 7478- 79. The DOJ notice stated that "any comments" on th e Access Board's Proposed Guidelines should be sent d irectly

to the Board. Id. at 7479.

On July 26, 1991, the Access Board announced its proposed final guidelines. Along with the guideline s, the Board published commentary, including two passages relevant to the meaning of the "lines of sight comp arable" language in 4.33.3. First, the Board gave the follo wing response to comments on dispersal:

Response. The requirements in 4.33.3 for dis persal of wheelchair seating spaces have been modified

.

8Wheelchair seating spaces must be an integra l part of

any fixed seating plan and be situated so as to provide wheelchair users a choice of admission price s and lines of sight comparable to those available to th e rest of the public. . . .

56 Fed. Reg. 35440. By discussing the "lines of sig ht" requirement in the section of the commentary concer ning dispersal, the Board appeared to be indicating that it was treating this requirement, like the choice of price requirement, as a dispersal requirement. The Board then went on to consider the issue of sightlines over st anding patrons in a separate section of the commentary:

Comment. The [Board] asked questions regard ing . . . lines of sight over standing spectators in s ports arenas and other similar assembly areas. . . . Many

commenters . . . recommended that lines of s ight should be provided over standing spectators.

Response. . . . The issue of lines of sight over standing spectators will be addressed in gui delines5 for

recreational facilities.

Id. (emphasis added).

On the same day that the Access Board issued its proposed guidelines, including the above comment an d response seemingly deferring the issue of standing lines of sight, the DOJ promulgated Standard 4.33.3, which i s worded identically to the Access Board's final prop osed text, which addressed the sight-line issue. Unlike the Bo ard, the Department did not initially express a view in its commentary on the issue of sightlines over standing spectators. Rather, in explaining its adoption of t he Access Board's guidelines, the DOJ made the following gene ral

statement:

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5. It is important to note the difference between A ccess Board guidelines and DOJ guidelines. For the Access Board, guideline s are the substantive rules they develop and promulgate. Thus , in speaking of a future guideline, the Board was not referring to a future interpretation

of 4.33.3, but rather, a separate substantive rule it would develop. By contrast, a DOJ guideline is an interpretation of a substantive rule, not

the substantive rule itself.

9The Department put the public on notice, thr ough the

proposed rule, of its intention to adopt the proposed [guidelines], with any changes made by the B oard, as the accessibility standards. As a member of the Board and of its ADA Task Force, the Department participated actively in the public hearings held on the proposed guidelines and in preparation of bo th the proposed and final versions of [the guidelin es] . . . [All] comments on the Department's proposed rule . . . have been addressed adequately in the final [guid elines]. Largely in response to comments, the Board m ade numerous changes from its proposal.

28 C.F.R. S 36, App. B, at 632-33.

The next discussion of the sightlines issue came in a 1992 Notice of Proposed Rulemaking published by the

Access Board. There the Board summarized what had occurred during the 1991 notice and comment period with regard to 4.33.3 and expressed its future intention s:

During the initial rulemaking, the Board re quested information on lines of sight at seating loc ations for persons who use wheelchairs. . . . An overwh elming majority of responses favored including a pr ovision requiring lines of sight over standing spect ators in sports arenas and other similar assembly are as. A few commenters opposed such a provision because it would be either unenforceable, add significa nt cost or reduce seating capacity. . . . The Board int ends to address the issue of lines of sight over sta nding spectators in the guidelines for recreationa l facilities which will be proposed at a future date.

Question 17: The Board is seeking comments on the design issues associated with providing inte grated and dispersed accessible seating locations with a clear line of sight over standing spectators in arenas, stadiums or other sports facilities. Clearly, not all se ats in sports facilities afford clear lines of sight over standing spectators. Tall persons, guard railings or otherfixed elements in the facility may block one's vie w of the playing field. However, since persons with d isabilities have fewer choices of seating locations, sho uld all the

10accessible seating locations be required to have lines of

sight over standing spectators? Would such a requirement compromise the requirement for d ispersed wheelchair seating by providing seating in f ewer locations? If maximum dispersal of accessibl e seating locations is provided, what percentage of su ch locations can be provided with a clear line of sight o ver standing spectators? The Board encourages commenters to provide cost information and examples (inclu ding drawings, pictures or slides) of sports faci lities where the accessible seating locations are dispers ed, integrated and provide clear lines of sight over standing
spectators.

57 Fed. Reg. 60618 (emphasis added).

Based on this regulatory history, the E-Centre cont ends

that Standard 4.33.3 was intended to leave unresolv ed the issue of lines of sight over standing spectators, a nd, as a result, the DOJ was not entitled to "interpret" Sta ndard

4.33.3 in 1994 in a fashion that did resolve the is sue of sightlines over standing spectators. Cf. Thomas Jef ferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (courts need not defer to an agency's interpretation of its own regu lation if an "alternative reading is compelled by . . . indic ations of the [agency's] intent at the time of the regulation 's promulgation"). The E-Centre maintains that, if the DOJ wanted to impose a new requirement that wheelchair users be able to see over standing patrons, it had to eng age in notice and comment, since such a requirement would

constitute a new substantive rule. See 5 U.S.C. S 5 53 (b) & (c) (notice and comment procedure required for subs tantive rules but not interpretive rules); DIA Navigation C o. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir. 1994) (explain ing that a rule is substantive if "the agency intends t o create new law, rights or duties").

Appellants dispute the E-Centre's characterization of the 1994 DOJ statement as a "substantive" rule. They ar gue that, because the DOJ did not explicitly adopt the Access Board's commentary, the meaning of Standard 4.33.3 was not limited by that commentary when it was adopted, and

thus the 1994 statement does not constitute a "chan ge" in the requirements under 4.33.3. They also maintain t hat

11even if the Access Board's commentary can be attrib uted to

the DOJ, the DOJ was entitled to change its interpr etation

of Standard 4.33.3 in 1994 without notice and comme nt.

With regard to the threshold question of whether th e Access Board's commentary can be attributed to the DOJ, the appellants rely on the District of Columbia Cir cuit's analysis in Paralyzed Veterans of America v. D.C. A rena L.P., 117 F.3d 579 (D.C. Cir. 1997):

If the Department, when it promulgated the r egulation, had said what the Board said, or even clearl y adopted what the Board said, it would be hard to con clude that the Department did not subsequently "amend" the regulation in violation of the APA. But Just ice did not do so in its statement of basis and purpose. It never referred to the Board's concern, nor did it imply that its regulation did not address the problem of li nes of sight over standing spectators. It may well be tha t it is a plausible inference that Justice, at the tim e, deliberately intended the regulation to mean the same thing as did the Board -- but it is not a ne cessary inference. . . . We admit the issue is not e asy; appellants almost but do not quite establish that the Department significantly changed its interpr etation of the regulation when it issued the 1994 techn ical

manual.

Id. at 587.

We agree that "the issue is not easy," 117 F.3d at 587, but we respectfully disagree with the District of C olumbia Circuit's conclusion that the DOJ did not adopt wha t the Access Board had said. Instead, we conclude that th e DOJ implicitly adopted the Access Board's analysis of 4 .33.3. This conclusion is strongly supported by the follow ing factors: 1) the DOJ referred all comments to the Bo ard; 2) the DOJ relied on the Board to make adequate change s based on those comments; 3) the Board specifically changed the language of 4.33.3 in response to comme nts and explained that change in its commentary; 4) the DOJ was a "member of the Board" and "participated activ ely . . . in preparation of both the proposed and final versi ons of the [guidelines]," 28 CFR Part 36, App. B, at 632; and 5)

12the DOJ's commentary stated that the final guidelin es

promulgated by the Board adequately addressed all comments. Accord Independent Living Resources v. Or egon Arena Corporation, 982 F. Supp. 698, 741 (D. Or. 19 97).

We thus agree with the appellants that 4.33.3, when viewed in light of the regulatory history recounted above, does not reach the issue of sightlines over standin g spectators. A court should not defer to an agency's interpretation of its own regulation if "an alterna tive reading is compelled by . . . indications of the [a gency's] intent at the time of the regulation's promulgation ." Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994).6 Thus, we do not accept the interpretation set out i n the DOJ Technical Assistance manual. "An agency is not allowed to change a legislative rule retroactively through the process of disingenuous interpretation of the r ule to mean something other than its original meaning."1
KENNETH CULP DAVIS AND RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE S 6.10 at 283 (1994).

The DOJ could, of course, adopt a new substantive regulation to require that wheelchair users be give n lines of sight equivalent to standing patrons -- and such a rule certainly has much to recommend it -- but to do thi s it must proceed with notice-and-comment rulemaking.

B. Access to the Lawn Area

Appellants' second contention is that the E-Centre does not comply with the ADA because there is no wheelch air access to the lawn area.7 In relevant part, Title I II requires

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6. The District Court in the instant case used simi lar reasoning to conclude that the interpretation in the 1994 TAM Su pplement was

invalid due to the lack of notice and comment:

When the "legislative history" of an adminis trative regulation

evinces an intent not to cover a certain subject mat ter, the notice-and- comment requirements of the APA cannot be ev aded merely by interpreting an existing regulation to cover subject matter consciously omitted from its scope.

968 F. Supp. 210, 216 (D.N.J. 1997).

7. Before the District Court, Caruso also argued th at the E-Centre had to include the capacity of the lawn area (18,000) i n its calculations of

13that the facilities of a public accommodation be"re adily

accessible to and usable by individuals with disabi lities, except where an entity can demonstrate that it is structurally impracticable." 42 U.S.C. S 12183(a)(i ). To implement this mandate, the DOJ has adopted a regul ation requiring that "[a]t least one accessible route . . . connect accessible buildings, accessible facilities, access ible elements, and accessible spaces that are on the sam e site." Standard 4.1.2(3) (emphasis added). Consistent with this provision, the appellants seek "at least one wheelc hair lift to . . . provide access to the lawn area from the t wo outdoor plazas." J.A. at 90 (Paradigm Report). See also App ellants' Br. at 13 (arguing that "if a ramp were built to th e lawn area there would be greater integration of the faci lity"). The E-Centre would appear obligated to provide such acc ess unless it can demonstrate structural impracticabili ty.

The DOJ has explained in its regulations that the structural impracticability exception is reserved f or "those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features." 28 C.F.R. S 36.401(c). Additional guidance, some of which is directly on point, can be found in the DOJ commenta ry that was published with the regulations:

Consistent with the legislative history of the ADA, this narrow exception will apply only in rar e and unusual circumstances where unique character istics of terrain make accessibility unusually difficu lt. . . . Almost all commenters supported this interpr etation. Two commenters argued that the DOJ requireme nt is too limiting . . . . These commenters suggested consistency with HUD's Fair Housing Accessibility Guidel ines, which generally would allow exceptions from access ibility requirements, or allow compliance with less stringent requirements, on sites with slopes exceeding 10%.

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how many wheelchair locations to provide. The Distr ict Court rejected this argument on the ground that DOJ Standard 4.1.3 (19), which requires that the number of wheelchair locations be equal to 1% + 1 of a facility's capacity, only applies to assembly are as with "fixed seating." 968 F. Supp. at 218. Caruso has not challenged this ruling on appeal.

14The Department is aware of the provisions i n HUD's

guidelines . . . . The approach taken in the se guidelines, which apply to different types of constructi on and implement different statutory requirements f or new construction, does not bind this Department in regulating under the ADA. . . .

The limited structural impracticability exc eption means that it is acceptable to deviate from accessibility requirements only where unique characteristi cs of terrain prevent the incorporation of accessi bility features and where providing accessibility w ould destroy the physical integrity of a facility . A situation in which a building must be built on stilts bec ause of its

location in marshlands or over water is an e xample of one of the few situations in which the excep tion for structural impracticability would apply.

This exception to accessibility requirement s should not be applied to situations in which a facility is located in "hilly" terrain or on a plot of land upon wh ich there are steep grades. In such circumstances, accessi bility can be achieved without destroying the physical integrity of a structure, and is required in the construc tion of new

facilities.

28 C.F.R. S 36, App. B., at 649 (emphasis added).

This passage indicates that public accommodations cannot demonstrate structural impracticability mere ly by providing evidence of a slope of over 10%. Yet, thi s is precisely how the E-Centre tries to show that "it i s impossible to make the lawn area wheelchair accessi ble." Appellees' Br. at 48-49 (relying solely on the fact that the lawn area has a slope ranging from 12-15%). The E-C entre has presented no argument as to why it cannot provi de a ramp or a lift that would enable wheelchair users t o reach the lawn area.8 Moreover, Caruso has introduced aff idavits

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8. The E-Centre incorrectly asserts that the Standa rds prohibit ramps to have a slope of more than 2%. The correct figure is 8.3%. Standard 4.8.2. In any event, this number is irrelevant. Car uso is not asking for a ramp that runs up the lawn area. Rather, he merel y wants a ramp or lift that will provide him with access to the lawn area.

15from people who have visited other concert venues w ith

sloping grass areas that are wheelchair accessible. J.A.

210-11.

Not surprisingly, the E-Centre does not focus on th e "structural impracticability" issue, and instead pr esses two other arguments. First, it contends that it need no t provide

wheelchair access to the lawn area because the DOJ Standards only require wheelchair seating to be pro vided when there is fixed seating for the general public. See Appellees' Br. at 46-47; see DOJ Standard 4.1.3 (19 ). This argument, however, misconstrues the issue being app ealed. Caruso is not asking that the E-Centre be required to construct wheelchair seating areas on the lawn that comply with the various requirements governing fixed seati ng plans.9 Rather, he is merely seeking an accessible route to the lawn

area. Caruso is entitled to such a route under the regulations regardless of whether or not the facili ty is also required to meet the more specific DOJ Standards concerning fixed seating plans. See 28 C.F.R. S 36. 401(c)(2) ("[A]ny portion of the facility that can be made ac cessible

shall be made accessible to the extent that is not structurally impracticable."); id., S 36, App. A, S tandard 4.1.1(5)(a) (same); id. Standard 4.1.2(2) ("At leas t one

accessible route . . . shall connect . . . accessib le spaces that are on the same site."). Accordingly, we rejec t the argument that assembly areas without fixed seating need not provide access to people in wheelchairs.

The E-Centre's other justification for failing to p rovide access is based on the "Equivalent Facilitation" pr ovision in

the DOJ Standards. It states:

___________________________________________________ ______________

9. Thus, there is no basis for the E-Centre's fear that it will have to "flatten the lawn area, cover it in concrete, and d ivide it into seating

rows to make it wheelchair accessible." See Appellees' B r. at 49. In fact, it

is unlikely that such a requirement could ever be impo sed under the ADA since Title III specifically provides that faciliti es can refrain from making modifications that "would fundamentally alter the n ature of such . . . facilities." 42 U.S.C. S 12182(b)(2)(A)(ii). In any event, Caruso has made it clear that he is not seeking access to the lawn areas so that he can sit in his wheelchair on a concrete slab. Rather, h e desires access so that he can "enjoy a concert on [the] grass or a bl anket" while picnicking with family and friends. Appellants' Br. at 13.

16Departures from particular technical and sco ping

requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used wi ll provide substantially equivalent or greater access t o and usability of the facility.

DOJ Standard 2.2. The E-Centre contends that it has provided "equivalent facilitation" for wheelchair u sers by placing additional wheelchair locations in the inte rior pavilion. See Appellees' Br. at 47-50. The District Court agreed and granted summary judgment for the E-Centr e on this basis.

The principal problem with the E-Centre's "equivale nt facilitation" argument is that it treats the ADA's requirement of equal access for people with disabil ities as a "particular technical and scoping requirement." T his is simply not the case. Rather, equal access is an exp licit requirement of both the statute itself and the gene ral provisions of the DOJ's regulations. See 42 U.S.C. S 12183; 28 C.F.R. S 36.401. Properly read, the "Equivalent Facilitation" provision does not allow facilities t o deny access under certain circumstances, but instead all ows facilities to bypass the technical requirements lai d out in the Standards when alternative designs will provide "equivalent or greater access to and usability of t he facility." Therefore, we conclude that the E-Centre cannot rel y on the "Equivalent Facilitation" provision to excuse its f ailure to provide any wheelchair access to an assembly area t hat accommodates 18,000 people.

Furthermore, as noted by Caruso in his appellate br ief, the language of Title III itself precludes a readin g of the "Equivalent Facilitation" provision that would allo w venues to restrict wheelchair access to certain areas base d on a

belief that wheelchair users will be better off els ewhere. See 42 U.S.C. S 12182 (b)(1)(A)(iii) (discriminatory to provide a separate benefit unless necessary to provide equal benefit); id. at (b)(1)(B) (benefits of a public accommodatio n must be provided in the most integrated setting appropriate to the needs of the individual). As the DOJ explains in it s commentary:

17Taken together, [the statutory and regulator y

provisions concerning separate benefits and integrated settings] are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by oth ers, based on, among other things, presumptions, patron izing attitudes, fears, and stereotypes about indi viduals with

disabilities. Consistent with these standard s, public accommodations are required to make decision s based on facts applicable to individuals and not o n the basis of presumptions as to what a class of indivi duals with disabilities can or cannot do. . . . Separat e, special, or different programs that are designed to prov ide a benefit to persons with disabilities cannot be used to restrict the participation of persons with d isabilities in general, integrated activities.

28 C.F.R. S 36, App. B., at 622.

The District Court, in concluding that the E-Centre had not violated Title III by failing to provide access to the lawn area, appeared to give precisely the type of justif ication that the DOJ commentary finds repugnant to the ADA:

The E-Centre provides the disabled with high er quality (i.e. closer) seats in the pavilion for the same price as lawn seats. Plaintiffs do not offer any reas ons why the interior seats are not equivalent or superio r to lawn seating. In our view, the E-Centre provides equal, if not greater, access to its facility for wheelcha ir users in the

interior than it does for non-wheelchair use rs on the

lawn.

968 F. Supp. at 218. On appeal, the E-Centre reiter ates this argument that it is acceptable to restrict whe elchair users from the lawn area because they provide "high er quality (i.e. closer) seats in the pavilion." Appel lees' Br. at 49. We reject this contention as inconsistent with the plain language of Title III. See 42 U.S.C. S 12182(b)(1)( c) ("Notwithstanding the existence of separate or diff erent programs or activities . . . an individual with a d isability shall not be denied the opportunity to participate in such programs or activities that are not separate or dif ferent."). We further conclude that the only way the E-Centre can

18justify its failure to provide access to the lawn a rea is by

showing structural impracticability. Since the E-Ce ntre has not yet made such a showing, we reverse the grant o f summary judgment on Caruso's lawn-access claim and remand for further proceedings related to this clai m.

II.

For the reasons explained above, we affirm the deci sion of the District Court in part, and we reverse in pa rt, and we remand for further proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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