1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-5-1999

Caruso v Blockbuster Sony

Precedential or Non-Precedential:

Docket 97-5693, 97-5764

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Recommended Citation

"Caruso v Blockbuster Sony" (1999). 1999 Decisions. Paper 299.

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Filed 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 ("ECentre") is a music and entertainment facility located in 

Camden, New Jersey. An interior pavilion at the E-Centre 

provides fixed seating for 6,200 patrons, and an uncovered 

lawn area located behind the pavilion can accommodate 

approximately 18,000 spectators who either stand or sit on 

portable chairs or blankets. 

Appellant William Caruso, a Vietnam veteran who uses 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 Americansfiled 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, 104 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 standing 

spectators and 2) the lawn area is not wheelchair 

accessible. The District Court granted summary judgment 

 2 
in 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 full and 

equal enjoyment of the goods, services, facilities, privileges, 

advantages, or accommodations of any place of public 

accommodation." 42 U.S.C. S 12182 (a). Title III requires 

that newly constructed facilities be "readily accessible 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 carry out 

these provisions, Congress has directed the Department of 

Justice (DOJ) to "issue regulations . . . that include 

standards applicable to facilities" covered by Title III. 42 

U.S.C. 12186(b). Congress has further required that any 

standards included by the DOJ in its regulations "be 

consistent with the minimum guidelines and requirements 

issued by the Architectural and Transportation Barriers 

Compliance Board" ("Access Board"). 42 U.S.C. S 12186(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 Access 

Board's guidelines as the DOJ's own Standards for New 

_________________________________________________________________ 

1. Before entering final judgment, the District Court granted a motion by 

the Paralyzed Veterans of America (PVA) to intervene as plaintiff solely 

for the purpose of appealing the District Court's ruling that the E-Centre 

does not need to provide wheelchair users sitting in the pavilion with 

lines of sight over standing spectators. 

2. The Access Board is a federal agency that was created 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 agencies or departments. Id. 

The Board's mission focuses on the elimination of architectural, 

transportation, communication, and attitudinal barriers confronting 

people with disabilities. See 29 U.S.C.S 792(b). The ADA directed the 

Access Board to issue "minimum guidelines" to supplement the Board's 

existing Minimum Guidelines and Requirements for Accessible Design. 

42 U.S.C. S 12204)(a). 

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

S 36.406 (referring to 28 C.F.R. S 36, App. A). Both of the 

issues in this case require us to interpret portions of the 

DOJ Standards. 

A. Lines of Sight 

Appellants contend that DOJ Standard 4.33.3, which was 

adopted after notice and comment, requires wheelchair 

seats in the E-Center pavilion to afford sightlines over 

standing spectators. Standard 4.33.3 provides: 

 Placement of Wheelchair Locations. Wheelchair 

 areas shall be an integral part of any fixed seating plan 

 and shall be provided so as to provide people with 

 physical disabilities a choice of admission prices and 

 lines of sight comparable to those for members of the 

 general public. They shall adjoin an accessible route 

 that also serves as a means of egress in case of 

 emergency. 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. . . . 

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

Appellants first argue that the plain meaning of the 

phrase "lines of sight comparable to those for members of 

the general public" requires that "if standing spectators can 

see the stage even when other patrons stand, wheelchair 

users, too, must be able to see the stage when other 

patrons stand." PVA Br. at 23. While this argument has 

considerable force, it does not account for the rest of the 

language in Standard 4.33.3, which helps the reader to 

place the phrase "lines of sight comparable" in context. 

Standard 4.33.3 is entitled "Placement of Wheelchair 

Locations" and includes at least two provisions concerning 

the dispersal of wheelchair locations in facilities with fixed 

seating plans.3 In addition, one of these dispersal provisions 

_________________________________________________________________ 

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 wheelchair areas throughout 

a facility. See PVA Reply Br. at 7. 

 4 
appears in the same sentence that contains the "lines of 

sight" requirement. Given this focus on the dispersal of 

wheelchair locations, it seems plausible to read the "lines of 

sight comparable" requirement as follows: if a facility'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 bleachers), it 

must also provide wheelchair users with a comparable 

opportunity to view the field or stage from a variety of angles.4 

Appellants reject this suggestion that the "lines of sight" 

provision might require dispersal rather than vertical 

enhancement, contending that such a reading would 

impermissibly render other portions of Standard 4.33.3 

superfluous. They argue: 

 Standard 4.33.3 . . . contains an explicit dispersal 

 provision, wholly independent of the "comparable" line 

 of sight provision. It requires, in pertinent part, that 

 "[w]heelchair areas . . . shall be provided so as to 

 provide persons with disabilities a choice of admission 

 prices." For facilities, such as modern sports and 

 entertainment venues, that offer tickets at a range of 

 prices depending on seating location, dispersal of 

 wheelchair locations is required by this provision. 

 Moreover, a requirement for dispersal is also derived 

 from the language in Standard 4.33.3 that "[w]hen the 

 seating capacity exceeds 300, wheelchair spaces shall 

 be provided in more than one location." Construing the 

 phrase "lines of sight comparable to those provided to 

 members of the general public" as simply requiring 

 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. 

_________________________________________________________________ 

4. Although not discussed by the E-Centre, there might be an additional, 

distinct reason for concluding that the language of Standard 4.33.3 does 

not clearly require sightlines over standing patrons: In light of the fact 

that Standard 4.33.3 concerns the design of "seating plans" and "seating 

areas," it seems entirely possible that the drafters were assuming seated 

spectators and not addressing the issue of standing patrons. 

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

sight" requirement from the two provisions in 4.33.3 that 

are indisputably about dispersion overlooks the possibility 

that the three provisions are designed to work together so 

that: 1) at a minimum, facilities with over 300 seats provide 

at least two wheelchair locations and 2) larger facilities 

provide wheelchair users with the option of choosing from 

among seats that afford a variety of views for a variety of 

corresponding prices. Contrary to appellants' assertion, 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 wheelchair 

users in just two locations so long at it offers some choice 

of prices in those locations. See Independent Living 

Resources v. Oregon Arena Corp., 982 F. Supp. 698, 743 

n.61 (D. Or. 1997). 

In the end, it seems that both interpretations of the "lines 

of sight" language are plausible and would provide some 

benefit to wheelchair users. Appellants' reading would 

benefit wheelchair users by allowing them to see when 

other patrons stand. The E-Centre's reading would benefit 

wheelchair users by providing them with a greater 

opportunity to view a performance or event from a variety 

of viewpoints. Since both readings of the rule are plausible 

and are consistent with the ADA's purpose of enabling 

people with disabilities to share equally in the benefits 

provided by a public accommodation, we conclude that the 

"lines of sight" language is ambiguous. 

Appellants' second contention is that, even if Standard 

4.33.3 is ambiguous, the court should follow the 

interpretation that has been given to the rule by the 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 regulation") 

(internal quotations omitted); Menkowitz v. Pottstown 

Memorial Medical Center, 154 F.3d 113, 123 (3d Cir. 1998) 

(DOJ Technical Assistance Manual entitled to deference). 

But see id. at 525 (Thomas, J., dissenting)("giving

 6 
substantive effect to . . . a hopelessly vague regulation . . . 

disserves the very purpose behind the delegation of

lawmaking power to administrative agencies"); John F. 

Manning, Constitutional Structure and Judicial Deference 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 statement 

appearing in a 1994 Supplement to the DOJ's Technical 

Assistance Manual (hereinafter "1994 TAM Supplement): 

 In addition to requiring companion seating and 

 dispersion of wheelchair locations, [Standard 4.33.3] 

 requires that wheelchair locations provide people with 

 disabilities lines of sight comparable to those for 

 members of the general public. Thus, in assembly 

 areas where spectators can be expected to stand during 

 the event or show being viewed, the wheelchair 

 locations must provide lines of sight over spectators who 

 stand. This can be accomplished in many ways, 

 including placing wheelchair locations at the 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 to see over 

 the spectators who stand in front of them. 

1994 DOJ TAM Supp. P III-7.5180, Conditional App. at 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 substantive 

requirement without notice and comment. The E-Centre 

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 Access 

Board on January 22, 1991. At that time, the provision 

provided: 

 Placement of Wheelchair Locations. Wheelchair 

 areas shall be an integral part of any fixed seating plan 

 and shall be dispersed throughout the seating area. 

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

 comparable to those for all viewing areas. 

56 Fed. Reg. 2380. In its public notice regarding the 

proposed rule, the Access Board explicitly invited comments 

on the issue of sightlines over standing spectators: 

 Section 4.33.3 provides that seating locations for 

 people who use wheelchairs shall be dispersed 

 throughout the seating area and shall be located to 

 provide lines of sight comparable to those for all 

 viewing areas. This requirement appears to be adequate 

 for theaters and concert halls, but may not suffice in 

 sports arenas or race tracks where the audience 

 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 constructed sports 

 arenas as well, if sight lines relative to standing 

 patrons are considered at the time of the initial design. 

 The Board seeks comments on whether full lines of 

 sight over standing spectators in sports arenas and 

 other similar assembly areas should be required. 

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 Proposed 

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 the 

Access Board's Proposed Guidelines should be sent directly 

to the Board. Id. at 7479. 

On July 26, 1991, the Access Board announced its 

proposed final guidelines. Along with the guidelines, the 

Board published commentary, including two passages 

relevant to the meaning of the "lines of sight comparable" 

language in 4.33.3. First, the Board gave the following 

response to comments on dispersal: 

 Response. The requirements in 4.33.3 for dispersal of 

 wheelchair seating spaces have been modified. 

 8 
 Wheelchair seating spaces must be an integral part of 

 any fixed seating plan and be situated so as to provide 

 wheelchair users a choice of admission prices and lines 

 of sight comparable to those available to the rest of the 

 public. . . . 

56 Fed. Reg. 35440. By discussing the "lines of sight" 

requirement in the section of the commentary concerning 

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 standing 

patrons in a separate section of the commentary: 

 Comment. The [Board] asked questions regarding . . . 

 lines of sight over standing spectators in sports arenas 

 and other similar assembly areas. . . . Many

 commenters . . . recommended that lines of sight 

 should be provided over standing spectators.

 Response. . . . The issue of lines of sight over 

 standing spectators will be addressed in guidelines5 for 

 recreational facilities. 

Id. (emphasis added). 

On the same day that the Access Board issued its 

proposed guidelines, including the above comment and 

response seemingly deferring the issue of standing lines of 

sight, the DOJ promulgated Standard 4.33.3, which is 

worded identically to the Access Board's final proposed text, 

which addressed the sight-line issue. Unlike the Board, 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 the Access 

Board's guidelines, the DOJ made the following general 

statement: 

_________________________________________________________________ 

5. It is important to note the difference between Access Board guidelines 

and DOJ guidelines. For the Access Board, guidelines 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. 

 9 
 The Department put the public on notice, through the 

 proposed rule, of its intention to adopt the proposed 

 [guidelines], with any changes made by the Board, 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 both the 

 proposed and final versions of [the guidelines] . . . [All] 

 comments on the Department's proposed rule . . . have 

 been addressed adequately in the final [guidelines]. 

 Largely in response to comments, the Board made 

 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 intentions: 

 During the initial rulemaking, the Board requested 

 information on lines of sight at seating locations for 

 persons who use wheelchairs. . . . An overwhelming 

 majority of responses favored including a provision 

 requiring lines of sight over standing spectators in 

 sports arenas and other similar assembly areas. A few 

 commenters opposed such a provision because it 

 would be either unenforceable, add significant cost or 

 reduce seating capacity. . . . The Board intends to 

 address the issue of lines of sight over standing 

 spectators in the guidelines for recreational facilities 

 which will be proposed at a future date. 

 Question 17: The Board is seeking comments on the 

 design issues associated with providing integrated and 

 dispersed accessible seating locations with a clear line 

 of sight over standing spectators in arenas, stadiums or 

 other sports facilities. Clearly, not all seats 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 view of the 

 playing field. However, since persons with disabilities 

 have fewer choices of seating locations, should all the 

 10 
 accessible seating locations be required to have lines of 

 sight over standing spectators? Would such a

 requirement compromise the requirement for dispersed 

 wheelchair seating by providing seating in fewer 

 locations? If maximum dispersal of accessible seating 

 locations is provided, what percentage of such locations 

 can be provided with a clear line of sight over standing 

 spectators? The Board encourages commenters to 

 provide cost information and examples (including 

 drawings, pictures or slides) of sports facilities where 

 the accessible seating locations are dispersed, 

 integrated and provide clear lines of sight over standing 

 spectators. 

57 Fed. Reg. 60618 (emphasis added). 

Based on this regulatory history, the E-Centre contends 

that Standard 4.33.3 was intended to leave unresolved the 

issue of lines of sight over standing spectators, and, as a 

result, the DOJ was not entitled to "interpret" Standard 

4.33.3 in 1994 in a fashion that did resolve the issue of 

sightlines over standing spectators. Cf. Thomas Jefferson 

Univ. v. Shalala, 512 U.S. 504, 512 (1994) (courts need not 

defer to an agency's interpretation of its own regulation if 

an "alternative reading is compelled by . . . indications 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 engage in 

notice and comment, since such a requirement would 

constitute a new substantive rule. See 5 U.S.C. S 553 (b) & 

(c) (notice and comment procedure required for substantive 

rules but not interpretive rules); DIA Navigation Co. v. 

Pomeroy, 34 F.3d 1255, 1264 (3d Cir. 1994) (explaining 

that a rule is substantive if "the agency intends to create 

new law, rights or duties"). 

Appellants dispute the E-Centre's characterization of the 

1994 DOJ statement as a "substantive" rule. They argue 

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 "change" in 

the requirements under 4.33.3. They also maintain that 

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

the DOJ, the DOJ was entitled to change its interpretation 

of Standard 4.33.3 in 1994 without notice and comment. 

With regard to the threshold question of whether the 

Access Board's commentary can be attributed to the DOJ, 

the appellants rely on the District of Columbia Circuit's 

analysis in Paralyzed Veterans of America v. D.C. Arena 

L.P., 117 F.3d 579 (D.C. Cir. 1997): 

 If the Department, when it promulgated the regulation, 

 had said what the Board said, or even clearly adopted 

 what the Board said, it would be hard to conclude that 

 the Department did not subsequently "amend" the 

 regulation in violation of the APA. But Justice 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 lines of sight 

 over standing spectators. It may well be that it is a 

 plausible inference that Justice, at the time, 

 deliberately intended the regulation to mean the same 

 thing as did the Board -- but it is not a necessary 

 inference. . . . We admit the issue is not easy; 

 appellants almost but do not quite establish that the 

 Department significantly changed its interpretation of 

 the regulation when it issued the 1994 technical 

 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 Columbia 

Circuit's conclusion that the DOJ did not adopt what the 

Access Board had said. Instead, we conclude that the DOJ 

implicitly adopted the Access Board's analysis of 4.33.3. 

This conclusion is strongly supported by the following 

factors: 1) the DOJ referred all comments to the Board; 2) 

the DOJ relied on the Board to make adequate changes 

based on those comments; 3) the Board specifically 

changed the language of 4.33.3 in response to comments 

and explained that change in its commentary; 4) the DOJ 

was a "member of the Board" and "participated actively . . . 

in preparation of both the proposed and final versions of 

the [guidelines]," 28 CFR Part 36, App. B, at 632; and 5) 

 12 
the DOJ's commentary stated that the final guidelines 

promulgated by the Board adequately addressed all 

comments. Accord Independent Living Resources v. Oregon 

Arena Corporation, 982 F. Supp. 698, 741 (D. Or. 1997). 

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 standing 

spectators. A court should not defer to an agency's

interpretation of its own regulation if "an alternative 

reading is compelled by . . . indications of the [agency'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 in the 

DOJ Technical Assistance manual. "An agency is not 

allowed to change a legislative rule retroactively through 

the process of disingenuous interpretation of the rule 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 given lines of 

sight equivalent to standing patrons -- and such a rule 

certainly has much to recommend it -- but to do this 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 wheelchair 

access to the lawn area.7 In relevant part, Title III requires 

_________________________________________________________________ 

6. The District Court in the instant case used similar reasoning to 

conclude that the interpretation in the 1994 TAM Supplement was 

invalid due to the lack of notice and comment: 

 When the "legislative history" of an administrative regulation 

evinces 

 an intent not to cover a certain subject matter, the notice-and- 

 comment requirements of the APA cannot be evaded 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 that the E-Centre had 

to include the capacity of the lawn area (18,000) in its calculations of 

 13 
that the facilities of a public accommodation be"readily 

accessible to and usable by individuals with disabilities, 

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 regulation 

requiring that "[a]t least one accessible route . . . connect 

accessible buildings, accessible facilities, accessible 

elements, and accessible spaces that are on the same site." 

Standard 4.1.2(3) (emphasis added). Consistent with this 

provision, the appellants seek "at least one wheelchair lift 

to . . . provide access to the lawn area from the two outdoor 

plazas." J.A. at 90 (Paradigm Report). See also Appellants' 

Br. at 13 (arguing that "if a ramp were built to the lawn 

area there would be greater integration of the facility"). The 

E-Centre would appear obligated to provide such access 

unless it can demonstrate structural impracticability. 

The DOJ has explained in its regulations that the 

structural impracticability exception is reserved for "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 commentary 

that was published with the regulations: 

 Consistent with the legislative history of the ADA, 

 this narrow exception will apply only in rare and 

 unusual circumstances where unique characteristics of 

 terrain make accessibility unusually difficult. . . . 

 Almost all commenters supported this interpretation. 

 Two commenters argued that the DOJ requirement is too 

 limiting . . . . These commenters suggested consistency 

 with HUD's Fair Housing Accessibility Guidelines, which 

 generally would allow exceptions from accessibility 

 requirements, or allow compliance with less stringent 

 requirements, on sites with slopes exceeding 10%. 

_________________________________________________________________ 

how many wheelchair locations to provide. The District 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 areas with "fixed 

seating." 

968 F. Supp. at 218. Caruso has not challenged this ruling on appeal. 

 14 
 The Department is aware of the provisions in HUD's 

 guidelines . . . . The approach taken in these guidelines, 

 which apply to different types of construction and 

 implement different statutory requirements for new 

 construction, does not bind this Department in 

 regulating under the ADA. . . . 

 The limited structural impracticability exception 

 means that it is acceptable to deviate from accessibility 

 requirements only where unique characteristics of 

 terrain prevent the incorporation of accessibility 

 features and where providing accessibility would 

 destroy the physical integrity of a facility. A situation in 

 which a building must be built on stilts because of its 

 location in marshlands or over water is an example of 

 one of the few situations in which the exception for 

 structural impracticability would apply. 

 This exception to accessibility requirements should not 

 be applied to situations in which a facility is located in 

 "hilly" terrain or on a plot of land upon which there are 

 steep grades. In such circumstances, accessibility can 

 be achieved without destroying the physical integrity of 

 a structure, and is required in the construction 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 merely by 

providing evidence of a slope of over 10%. Yet, this is 

precisely how the E-Centre tries to show that "it is 

impossible to make the lawn area wheelchair accessible." 

Appellees' Br. at 48-49 (relying solely on the fact that the 

lawn area has a slope ranging from 12-15%). The E-Centre 

has presented no argument as to why it cannot provide a 

ramp or a lift that would enable wheelchair users to reach 

the lawn area.8 Moreover, Caruso has introduced affidavits 

_________________________________________________________________ 

8. The E-Centre incorrectly asserts that the Standards 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. Caruso is not asking for 

a ramp that runs up the lawn area. Rather, he merely wants a ramp or 

lift that will provide him with access to the lawn area. 

 15 
from people who have visited other concert venues with 

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

210-11. 

Not surprisingly, the E-Centre does not focus on the 

"structural impracticability" issue, and instead presses two 

other arguments. First, it contends that it need not provide 

wheelchair access to the lawn area because the DOJ 

Standards only require wheelchair seating to be provided 

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 appealed. 

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 seating 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 facility 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 accessible 

shall be made accessible to the extent that is not 

structurally impracticable."); id., S 36, App. A, Standard 

4.1.1(5)(a) (same); id. Standard 4.1.2(2) ("At least one 

accessible route . . . shall connect . . . accessible spaces 

that are on the same site."). Accordingly, we reject 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 provide 

access is based on the "Equivalent Facilitation" provision 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 divide it into seating 

rows 

to make it wheelchair accessible." See Appellees' Br. at 49. In fact, it 

is 

unlikely that such a requirement could ever be imposed under the ADA 

since Title III specifically provides that facilities can refrain from 

making 

modifications that "would fundamentally alter the nature 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, he desires access so 

that he can "enjoy a concert on [the] grass or a blanket" while picnicking 

with family and friends. Appellants' Br. at 13. 

 16 
 Departures from particular technical and scoping 

 requirements of this guideline by the use of other 

 designs and technologies are permitted where the 

 alternative designs and technologies used will provide 

 substantially equivalent or greater access to and 

 usability of the facility. 

DOJ Standard 2.2. The E-Centre contends that it has

provided "equivalent facilitation" for wheelchair users by 

placing additional wheelchair locations in the interior 

pavilion. See Appellees' Br. at 47-50. The District Court 

agreed and granted summary judgment for the E-Centre on 

this basis. 

The principal problem with the E-Centre's "equivalent 

facilitation" argument is that it treats the ADA's 

requirement of equal access for people with disabilities as 

a "particular technical and scoping requirement." This is 

simply not the case. Rather, equal access is an explicit 

requirement of both the statute itself and the general 

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 to deny 

access under certain circumstances, but instead allows 

facilities to bypass the technical requirements laid out in 

the Standards when alternative designs will provide

"equivalent or greater access to and usability of the facility." 

Therefore, we conclude that the E-Centre cannot rely on the 

"Equivalent Facilitation" provision to excuse its failure to 

provide any wheelchair access to an assembly area that 

accommodates 18,000 people. 

Furthermore, as noted by Caruso in his appellate brief, 

the language of Title III itself precludes a reading of the 

"Equivalent Facilitation" provision that would allow venues 

to restrict wheelchair access to certain areas based on a 

belief that wheelchair users will be better off elsewhere. 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 accommodation must be 

provided in the most integrated setting appropriate to the 

needs of the individual). As the DOJ explains in its 

commentary: 

 17 
 Taken together, [the statutory and regulatory 

 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 others, based 

 on, among other things, presumptions, patronizing 

 attitudes, fears, and stereotypes about individuals with 

 disabilities. Consistent with these standards, public 

 accommodations are required to make decisions based 

 on facts applicable to individuals and not on the basis 

 of presumptions as to what a class of individuals with 

 disabilities can or cannot do. . . . Separate, special, or 

 different programs that are designed to provide a 

 benefit to persons with disabilities cannot be used to 

 restrict the participation of persons with disabilities 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 justification that 

the DOJ commentary finds repugnant to the ADA: 

 The E-Centre provides the disabled with higher quality 

 (i.e. closer) seats in the pavilion for the same price as 

 lawn seats. Plaintiffs do not offer any reasons why the 

 interior seats are not equivalent or superior to lawn 

 seating. In our view, the E-Centre provides equal, if not 

 greater, access to its facility for wheelchair users in the 

 interior than it does for non-wheelchair users on the 

 lawn. 

968 F. Supp. at 218. On appeal, the E-Centre reiterates 

this argument that it is acceptable to restrict wheelchair 

users from the lawn area because they provide "higher 

quality (i.e. closer) seats in the pavilion." Appellees' 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 different 

programs or activities . . . an individual with a disability 

shall not be denied the opportunity to participate in such 

programs or activities that are not separate or different."). 

We further conclude that the only way the E-Centre can 

 18 
justify its failure to provide access to the lawn area is by 

showing structural impracticability. Since the E-Centre has 

not yet made such a showing, we reverse the grant of 

summary judgment on Caruso's lawn-access claim and 

remand for further proceedings related to this claim. 

II. 

For the reasons explained above, we affirm the decision 

of the District Court in part, and we reverse in part, 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 

 19