UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA TIMOTHY JOHANSON, WALTER ) JOHANSON and VERONICA JULIANO ) Individually and on behalf of ) all others similarly situated, ) CIV-GONZALEZ ) Case No. 96-7026 Plaintiffs, ) ) Magistrate Judge Seltzer V. ) HUIZENGA HOLDING, INC., ) MEMORANDUM OF LAW OF ELLERBE BECKET ARCHITECTS AND ) AMICUS CURIAE UNITED STATES ENGINEERS, INC., THE FLORIDA ) IN OPPOSITION TO DEFENDANT PANTHERS HOCKEY CLUB, LTD., ) ELLERBE BECKET ARCHITECTS BROWARD COUNTY, FLORIDA, and ) AND ENGINEERS, INC.'S THE CITY OF SUNRISE, FLORIDA, ) MOTION TO DISMISS Defendants. ) I. INTRODUCTION Plaintiffs Walter and Timothy Johanson and Veronica Juliano have brought this action against the owners, developers, and architects of the proposed new arena for the Florida Panthers of the National Hockey League, soon to be built in Broward County, Florida ("the arena"). The plaintiffs filed suit under the Americans with Disabilities Act of 1990, 42 U.S.C. Section Section 12101 et seq. (the "ADA" or the "Act"), alleging that the planned arena, as currently designed, fails to meet the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A. The plaintiffs seek an order compelling the defendants to bring the facility into compliance with the requirements of the ADA. 01-04841 Currently pending before the Court are motions to dismiss of various defendants. Defendant Ellerbe Becket Architects and Engineers, Inc. ("Ellerbe"), the architectural firm designing the arena, has moved to dismiss the counts of the complaint alleged against it, arguing that architects and engineers do not fall within the scope of the ADA's provisions governing the design and construction of new facilities.1 As set forth below, the United States urges the Court to reject Ellerbe's argument that it is not subject to liability under the ADA.2 1. On October 10, 1996, the United States filed suit against Ellerbe Becket, Inc., a firm affiliated with the defendant here, in the United States District Court for the District of Minnesota. United States v. Ellerbe Becket, Inc. (D. Minn. Civil Action No. 4-96-995) (copy of complaint attached as Exhibit 1). The government's action alleges that Ellerbe has repeatedly designed sports arenas that do not comply with the ADA, and in particular with the requirement in the ADA's Standards for Accessible Design (the architectural standards that apply to new facilities) that wheelchair seating locations provide wheelchair users with lines of sight "comparable" to those for other spectators. 28 C.F.R. Part 36, Appendix A ("the Standards") S 4.33.3. The Department of Justice has taken the position that the requirement for "comparable" lines of sight means that wheelchair seating locations must be designed to provide lines of sight over standing spectators in facilities where spectators can be expected to stand for significant portions of events. See U.S. Department of Justice, Civil Rights Division, Disability Rights Section, THE AMERICANS WITH DISABILITIES ACT Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities S III-7.5180 at 13 (1994 Supp.) (copy attached as Exhibit 3). Among other things, plaintiffs here allege that wheelchair locations at the proposed arena will not provide lines of sight over standing spectators. 2. The United States does not have and has not reviewed any architectural drawings for the proposed arena. As a result, the United States does not address the ripeness issues raised by Ellerbe. The United States also does not address any of the motions to dismiss filed by the other defendants. 01-04842 II. THE NEW CONSTRUCTION REQUIREMENTS OF THE ADA The Americans with Disabilities Act, 42 U.S.C. SS 12101 et seq., is Congress' most comprehensive civil rights legislation since the Civil Rights Act of 1964. Its purposes are "to invoke the sweep of congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities," 42 U.S.C. S 12101(b)(4), and to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. S 12101(b)(1). The ADA's coverage is accordingly broad -- prohibiting discrimination on the basis of disability in employment, State and local government programs and services, transportation systems, telecommunications, commercial facilities, and the provision of goods and services offered to the public by private businesses. Congress found that architectural barriers constituted one of the types of discrimination "continually encounter[ed]" by individuals with disabilities. 42 U.S.C. S 12101(a)(5). To redress this form of discrimination, Congress mandated that all facilities subject to the Act built after a certain date must be "readily accessible to and usable by" individuals with disabilities. Congress intended strict adherence to the new construction requirements so that, "over time, access will be the rule rather than the exception." H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 63 (1990). All newly constructed facilities must be fully accessible to individuals with disabilities. Id. -3- 01-04843 ("The ADA is geared to the future . . . . Thus, the bill only requires modest expenditures to provide access in existing facilities, while requiring all new construction to be accessible.") (emphasis added). To accomplish this purpose, as we detail below, Congress provided for architects and all others involved in the design and construction of new public accommodations and commercial facilities to be held accountable under title III of the ADA.3 III. ARGUMENT A. Ellerbe's reading of the statute would impermissibly limit the scope of the ADA's new construction provision. Title III of the ADA imposes the new construction mandate on all public accommodations and commercial facilities. See 42 U.S.C. S 12183(a)(1). The proposed arena is both a public accommodation and a commercial facility.4 Under title III, for 3. Title II of the ADA imposes the new construction mandate on state and local governmental facilities. See 42 U.S.C. S 12132 and 28 C.F.R. S 35.151(a). Ellerbe correctly notes that it has no obligations under title II, as that part of the statute by its terms applies only to state and local governmental entities. The arena appears to be covered under both titles II and III if, as alleged in the complaint, it is owned by the County (a title II entity) and is being designed and constructed by, and will be operated and leased by, one or more private entities. 4. The ADA defines commercial facilities very broadly as all facilities intended for non-residential use whose operations affect commerce (with the exception of certain railroad facilities and equipment, and certain facilities covered by the Fair Housing Act). See 42 U.S.C. S 12181(2). The category of public accommodations, while still large, is not as broadly inclusive as "commercial facilities." The statute defines "public accommodations" to be entities (1) whose operations affect commerce, and (2) that fall into one or more of twelve (continued...) -4- 01-04844 both public accommodations and commercial facilities, as those terms are defined by the statute, section 303 makes it unlawful to "design and construct" a facility that is not "readily accessible to and usable by" individuals with disabilities, as defined by architectural standards promulgated by the Attorney General. See 42 U.S.C. SS 12183, 12186(b).5 In addition to the requirements for new construction in section 303, section 302 of the Act imposes on public accommodations, but not on commercial facilities, various other non-discrimination obligations with respect to their day-to-day operations. See 42 U.S.C. S 12182(a) and (b).6 4. (...continued) categories of public accommodations set out in the Act. See 42 U.S.C. S 12181(7). The proposed Broward County arena meets both definitions. It clearly is intended to be a non-residential facility whose operations will affect commerce, and thus is a "commercial facility." In addition, the arena is a "public accommodation," as it falls within at least two of the statute's categories of public accommodation: it will be a "stadium, or other place of exhibition or entertainment," within the meaning of section 301(7)(C), and it will also be an "auditorium, convention center, lecture hall, or other place of public gathering," within the meaning of section 301(7)(D). See 42 U.S.C. SS 12181(7)(C), (D). 5. The architectural standards for new facilities promulgated by the Attorney General are incorporated into the Department of Justice's title III implementing regulation, and are known as the Standards for Accessible Design. See 28 C.F.R. Part 36, Appendix A ("the Standards"). 6. Title III's general mandate prohibiting discrimination against individuals with disabilities in public accommodations is set out in section 302(a) of the Act, which provides that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or (continued...) -5- 01-04845 Ellerbe's argument that the ADA does not cover architects rests entirely on a cross-reference in section 303 to section 302(a). Section 303 provides, in pertinent part, that as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) of this title includes (1) a failure to design and construct facilities for first occupancy later than [January 26, 1993] that are readily accessible to and usable by individuals with disabilities . . . 42 U.S.C. S 12183(a). The reference to section 302(a) will not bear the construction Ellerbe attempts to put upon it. As noted above, section 302 imposes a variety of non- discrimination requirements, but it applies only to public accommodations, and only a "person who owns, leases (or leases to), or operates a place of public accommodation" can be held liable under section 302. 42 U.S.C. S 12182(a). Section 303, however, expressly extends its scope to include commercial facilities, and it would do violence to the statutory scheme to 6. (...continued) accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. S 12182(a). Section 302(b) then construes section 302(a), defining discrimination on the basis of disability to include various acts or omissions. For instance, public accommodations may not deny individuals with disabilities opportunities to participate in and benefit from their services on a basis equal to that offered to other individuals. See 42 U.S.C. S 12182(b)(1)(A)(ii). Public accommodations also may not provide individuals with disabilities with goods, services, privileges, or advantages that differ from those provided to other individuals, unless doing so is necessary to the provision of the goods or services in question. See 42 U.S.C. S 12182(b)(1)(A)(iii). -6- 01-04846 read the cross reference in section 303 to mean that only those who have obligations under 302 -- the owners, lessors, lessees and operators of public accommodations -- can be held liable for new construction violations under section 303. Unlike section 302, section 303 does not separately designate the parties responsible for compliance with its mandate. Rather, 303 simply specifies prohibited activities -- the design and construction of inaccessible new facilities -- without identifying or limiting the parties who may be held responsible for engaging in such activity. Limiting section 303 to the parties covered by section 302 would effectively eliminate section 303's coverage of commercial facilities. Such a result cannot be harmonized with the language in 303 that explicitly names "commercial facilities" in connection with the new construction mandate. Ellerbe's construction of the statute would exclude this broad category of facilities, including many office buildings, warehouses, factories, and other facilities that are commercial facilities, but are not places of public accommodation. Ellerbe does not explain either 1) how its reading of the statute can be squared with the inclusion of commercial facilities in section 303, or 2) if they cannot be squared, why this Court should adopt a reading of the statute which eliminates an entire category of buildings from the coverage marked out by Congress. Ellerbe's only answer appears to be that the arena is a public accommodation. See Memorandum in Support of Defendant -7- 01-04847 Ellerbe Becket Architects and Engineers, Inc.'s Motion to Dismiss ("Ellerbe Memorandum") at 6 n.5. Presumably, Ellerbe's point is that because this facility is a public accommodation, there are parties in this case that can be held liable for any violations of section 303. Whatever the merit of Ellerbe's answer for this case, it is no answer at all in those cases involving commercial facilities. Under Ellerbe's reading of the statute, the only people who could be held liable for design and construction violations of commercial facilities would be those who own, lease, or operate public accommodations. For strictly commercial facilities -- many office buildings, for instance, do not contain places of public accommodation -- there is no party who would meet this definition and, therefore, no party to be held accountable for ADA violations. Ellerbe offers no rationale for excluding such facilities from section 303.7 The most sensible reading of section 303's reference to section 302(a) is that section 303 refers to section 302(a) not to identify the parties that may be held liable under section 303, but rather to indicate that the failure to design and construct accessible facilities constitutes another type of "discrimination on the basis of disability." This interpretation 7. In addition, limiting section 303 coverage to those parties identified in section 302 makes no sense from a practical perspective. While parties who own, operate, or lease public accommodations are the obvious choice for the obligations related to the day to day operation of the businesses imposed by section 302, parties who lease or operate a facility frequently will have nothing whatever to do with the initial design and construction of the facility. Ellerbe does not explain why Congress would choose to impose new construction obligations on those parties. -8- 01-04848 gives full effect to the terms of the provision. See Moskal v. United States, 498 U.S. 103, 109-10 (1990) (courts should interpret statutes in a manner that gives effect to every clause and word of the statute) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955) (same)). B. By specifically including the term "design" in section 303, Congress clearly signalled its intent to bring those who design new facilities -- architects and other designers -- within the scope of section 303's coverage. The language of section 303 itself indicates that architects fall within the scope of its coverage. By including the term "design," Congress clearly intended that those entities who design new facilities -- architects, engineers, and other designers of all types -- have obligations under the ADA. Congress could have written this paragraph without using the word "design," addressing itself only to the end result by making it illegal only to "construct" inaccessible facilities. By including the design function in the description of the prohibited conduct, however, Congress brought within the Act's coverage not just those parties who are ultimately responsible for the construction of a new facility, but also those parties who play a role in the design of a building. Thus, section 303 is properly read to prohibit designing an inaccessible facility as well as constructing an inaccessible facility. The language applies to the entire process of building a facility -- the "design and construction" of a public accommodation or commercial facility, and requires all parties involved in that process to -9- 01-04849 conform their involvement, whatever its scope, to the requirements of the ADA.8 Ellerbe argues that only those parties that both "design and construct" new facilities can be held liable under section 303. Because Ellerbe is only the designer, the argument goes, it cannot be held responsible for ADA violations at the arena since it does not have construction responsibility. Ellerbe Memorandum at 9-10. Once again, Ellerbe's parsing of the language creates a large loophole. Under Ellerbe's reading of section 303, so long as a facility is designed to be in compliance with the ADA, the owner and contractor can freely depart from the designs during construction and eliminate accessible features without violating the ADA, because the building is not both designed and 8. The Department of Justice has also taken this position in its Technical Assistance Manual. See U.S. Department of Justice, Civil Rights Division, Disability Rights Section, THE AMERICANS WITH DISABILITIES ACT Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities, November 1993, S III-5.1000 at 46 (copy attached as Exhibit 3). Because the Department is the executive agency charged with administering title III of the ADA, its interpretations of the statute and its regulation are entitled to substantial deference. See, e.g., Thomas Jefferson University v. Shalala, 114 S. Ct. 2381, 2386 (1994) (courts "must give substantial deference to an agency's interpretation of its own regulations" unless "plainly erroneous or inconsistent with the regulation"); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (well settled that where Congress has not directly addressed the precise question at issue, "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer"). -10- 01-04850 constructed in violation. Such an absurd result would effectively nullify section 303.9 C. Holding architects responsible for designing buildings that exclude individuals with disabilities is entirely consistent with the purposes of the ADA. Under well-established canons of statutory construction, in addition to examining the text of the statute, the Court must also look to its remedial purposes.10 Architects and other building and design professionals play key roles in the design and construction of new facilities. Placing responsibility for compliance not just on owners of buildings, but also on the architects, engineers, and other building professionals on whose judgment and expertise owners rely, best effectuates the fully accessible future that Congress envisioned when enacting the ADA. This is particularly true in a case like this one, involving a large, indoor sports and multi-purpose arena, where an owner must rely very heavily on architects and engineers with highly 9. It is well-recognized that statutes must not be construed in a manner that yields "odd" or "absurd" results. See United States v. X-Citement Video, Inc., 115 S. Ct. 464, 467 (1994). 10. See Peyton v. Rowe, 391 U.S. 54, 65 (1968) (civil rights legislation should be liberally construed in order to effectuate its remedial purpose); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (it is a "familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes"). "[R]emedial statutes are to be liberally construed to effectuate their purposes." Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 155 n.54 (D.C. Cir. 1984). See also Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 18 (1st Cir. 1994) (broadly construing the ADA); Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993) (same), cert. denied sub nom. Hoskins v. Kinney, 114 S. Ct. 1545 (1994); Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994) (same). -11- 01-04851 specialized expertise. In such a case, an owner will in many instances simply be unable to judge whether the building professionals to whom he has entrusted his project are complying with the statute, and will not realistically be in a position to identify and prevent ADA violations. Effective enforcement of the ADA's new construction provision requires that that provision not be limited to parties who own, operate, or lease the facility in question, for two reasons. First -- and despite Ellerbe's assertion to the contrary, see Ellerbe Memorandum at 12 n.6 -- architects and others involved in the design and construction of a new facility may well have an incentive to ignore the ADA's architectural requirements. In bidding to work on a project, an architect may believe that proposing a design that does not comply with the ADA will give that architect an advantage over competitors bidding for the same project. As discussed above, the owner is unlikely to be in a position to determine whether the proposal complies with the ADA's technical requirements. Second, entities other than those who own, operate, or lease the facility in question may exert considerable influence or control over the design and construction of a new facility. If they are excluded from coverage many new facilities will be built inaccessibly. For instance, the franchisor of a chain of hotels or restaurants may dictate or control the design plans for facilities in its chain, but typically will not own or lease the facilities, and may have too little control over the operations -12- 01-04852 of the facilities after they are built to be held to be "operating" the facilities within the meaning of title III. Under Ellerbe's reading of the statute, such an entity would have no liability despite its control over the design of the facility. Finally, there is no merit in Ellerbe's suggestion that holding architects responsible under the ADA for designing inaccessible buildings would make the Justice Department into a kind of "design police." See Ellerbe Memorandum at 12. While Ellerbe is correct that the statute does require the Attorney General to investigate alleged violations of title III, it does not vest the Attorney General with power to issue subpoenas or other compulsory process to accomplish those investigations. Thus, the Department simply does not have the authority to become a "design police." To review drawings for potential ADA violations, the Department must either obtain those drawings informally, with the cooperation of the architect or owner, or from other publicly available sources, or must bring an action in federal court and seek them in discovery (where an architect can seek appropriate protective orders).11 11. Indeed, this case demonstrates the principle. As noted previously, the United States has brought an action against Ellerbe in the United States District Court for the District of Minnesota alleging that Ellerbe has engaged in a pattern or practice of illegal discrimination by repeatedly designing new sports arenas in violation of the ADA's architectural requirements. In the course of its investigation of Ellerbe Becket, however, the United States has not seized plans for the Broward County arena (or for any other facility), and has not interrupted the progress of any design program, or otherwise intruded into the conduct of Ellerbe's business with its clients. While the United States has reviewed drawings of several stadiums (continued...) -13- 01-04853 D. Ellerbe's reliance on the MCI Center opinion is misplaced. In arguing that it should have no responsibility for designing inaccessible arenas, Ellerbe relies heavily on a recent opinion in a case involving the new MCI Center, an indoor basketball and hockey arena now under construction in downtown Washington, D.C. Paralyzed Veterans of America, et al. v. Ellerbe Becket Architects & Engineers, P.C. et al., (D.D.C. Civil Action No. 96-1354 (TFH)) (hereinafter cited as the MCI Center case). Ellerbe Becket was named as a defendant in the case and filed a motion to dismiss which was granted on the grounds that architects are not subject to liability under section 303.12 For all of the reasons stated above, we respectfully urge this Court to reject the MCI Center court's analysis. The MCI Center analysis makes the same mistakes here urged by Ellerbe. For instance, the MCI Center court does not explain why section 303, which plainly applies to public accommodations and commercial facilities, should be limited to parties who own, lease, or operate public accommodations. The opinion does not even acknowledge this discrepancy, much less try to account for it. Rather, the court states only that "the limitation in S 302 to owners, operators, and lessors also applies to S 303 and thereby excludes architects . . . . MCI Center slip op. at 2-3. 11 (...continued) designed by Ellerbe, we have obtained those drawings either voluntarily from Ellerbe, or from other sources. 12. A copy of the MCI Center court's opinion granting Ellerbe's motion is attached as Exhibit 2. - 14 - 01-04854 But because section 302 applies only to owners, operators, and lessors of public accommodations and not to commercial facilities at all, this analysis, as discussed above, leads to the patently incorrect result of eliminating from section 303 any meaningful coverage of commercial facilities. The correct reading is one that gives full effect to both sections -- interpreting the cross-reference to 302 in section 303 to mean that a failure to design and construct accessible facilities is merely an additional form of discrimination to be included in section 302's definition of discrimination. The MCI Center opinion also does not address the loophole created by Ellerb's reading of "design and construct" -- that reading the statute as suggested by Ellerbe allows avoidance of all liability for ADA violations when the facility is designed correctly but built incorrectly. Rather the Court simply concludes that 'design and construct' is distinctly conjunctive. It refers only to parties responsible for both functions, such as general contractors or facilities owners who hire the necessary design and construction experts for each project. Id. at 2. If this exclusive focus on those ultimately responsible for the facility were correct, it would have made far more sense for Congress to have omitted the word design from the statute altogether, and simply to have made it illegal to construct an inaccessible facility. Congress, however, did expressly include the term "design" when describing the prohibited activities, and neither Ellerbe nor the MCI Center court explain how its inclusion can be squared with their reading - 15 - 01-04855 of the statute. It is more faithful to the language of the statute, and better serves the purposes of the Act, to read section 303's use of the conjunctive "and" to make it unlawful to design an inaccessible facility as well as to construct an inaccessible facility. IV. CONCLUSION For the reasons stated above, the United States respectfully urges this Court to reject Ellerbe's argument that it is not subject to liability under the ADA. Respectfully submitted, WILLIAM A. KEEFER DEVAL L. PATRICK United States Attorney Assistant Attorney General Southern District of Florida Civil Rights Division DAVID I. MELLINGER JOHN L. WODATCH Assistant U.S. Attorney District of Columbia Bar Florida Bar Number 821365 Number 344523 299 East Broward Blvd. JOAN A. MAGAGNA Fort Lauderdale, FL 33301 District of Columbia Bar (954) 356-7314 Number 910885 (954) 356-7336 (fax) THOMAS M. CONTOIS North Carolina Bar Number 17787 U.S. Department of Justice Civil Rights Division Disability Rights Section Post Office Box 66738 Washington, D.C. 20035-6738 (202) 514-6014 (202) 307-1198 (fax) Dated: October 31, 1996 - 16 - 01-04856 REVIEW JFT ILLEGIBLE ORIG DATE 01-04857