DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH JOAN A. MAGAGNA THOMAS M. CONTOIS Attorneys Civil Rights Division U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-6738 (202) 514-6014 KRISTINE OLSON OSB #73254 United States Attorney District of Oregon OKIANER CHRISTIAN DARK Assistant U.S. Attorney 888 S.W. 5th Avenue, Suite 100 Portland, Oregon 97204-2024 (503) 727-1013 Attorneys for the United States UNITED STATES DISTRICT COURT DISTRICT OF OREGON INDEPENDENT LIVING RESOURCES, ) a nonprofit corporation, and ) ROBERT W. PIKE, ) Case No. CV 95-84-AS ) Plaintiffs, ) ) MEMORANDUM OF ) AMICUS CURIAE UNITED STATES V. ) IN SUPPORT OF PLAINTIFFS' OREGON ARENA CORPORATION ) MOTION FOR PARTIAL SUMMARY ) JUDGMENT AND IN OPPOSITION Defendant. ) TO DEFENDANT'S MOTION FOR ) SUMMARY JUDGMENT 01-06960 TABLE OF CONTENTS Page I. INTRODUCTION 1 II. STATUTORY AND REGULATORY FRAMEWORK 3 III. ARGUMENT 6 A. In arenas like the Rose Garden, where other spectators can be expected to stand, wheelchair seating locations must provide wheelchair users with lines of sight over standing spectators. 6 1. Title III of the ADA requires the Rose Garden to be readily accessible to and usable by individuals with disabilities. 6 2. The Department of Justice's interpretation of title III of the ADA and the title III regulation is reasonable. 7 B. The Department of Justice's interpretation of the ADA's architectural requirements is entitled to deference. 11 1. The Department of Justice has consistently taken the same view of the Standards' line of sight requirement. 11 2. Several federal courts have already deferred to the Department's interpretations of its ADA regulations. 16 3. OAC's arguments that the Court should not defer to the Department's interpretation lack merit. 21 a. The Standards for Accessible Design are an integral part of the Department of Justice's title III implementing regulation. 21 b. The Department of Justice did not adopt the Access Board's commentary on the ADAAG. 24 Page i -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06961 C. In addition to failing to provide lines of sight over standing spectators, the wheelchair seating locations at the Rose Garden violate the requirements of the Standards in several other respects. 27 1. The wheelchair seating locations on Level 7 of the Rose Garden are not an integral part of the arena's fixed seating plan. 28 2. The wheelchair seating locations in other parts of the arena do not provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. 29 3. Wheelchair seating locations in the Rose Garden do not have fixed companion seats. 30 D. The Rose Garden's private suites fail to comply with the applicable requirements of the Standards. 32 1. The suites are both places of public accommodation and commercial facilities, and are subject to the requirements of the Standards. 32 2. The suites are "common use" spaces within the meaning of the Standards, and as such must meet various accessibility requirements. 34 IV. CONCLUSION 35 Page ii -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06962 TABLE OF EXHIBITS A Transcript of Bench Op., Paralyzed Veterans of America, et al. v. Ellerbe Becket Architects & Engineers, P.C., et al., (D.D.C. Civil Action No. 96-1354, October 21, 1996) B Complaint, United States v. Ellerbe Becket, Inc., (D. Minn. Civil Action No. 4-96-995) C U.S. Department of Justice, Americans with Disabilities Act Title III Technical Assistance Manual (November 1993 and Supp. 1994) D Letter dated September 14, 1995 from Deval L. Patrick, Assistant Attorney General for Civil Rights, to Congressman Bill Paxon E U.S. Department of Justice, "Accessible Stadiums" (undated) F Letter dated October 22, 1996 from Deval L. Patrick, Assistant Attorney General for Civil Rights, to David Stern, Commissioner of the National Basketball Association G Orr v. Kindercare, Civ. No. S-95-507 EJG/GGH (E.D. Cal. June 9, 1995) Page iii -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06963 TABLE OF AUTHORITIES Cases: Page Adelman v. Dunmire, No. CIV.A. 95-4039, 1996 WL 107853 (E.D. Pa. Mar. 12, 1996) 21 Bechtel v. East Penn. School Dist., Civ. A. No. 93-4898, 1994 WL 3396 (E.D. Pa. Jan. 4, 1994) 21 Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995) 20 Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260 (9th Cir. 1996) 16 Citizens Action League v. Kizer, 887 F.2d 1003 (9th Cir. 1989) 16 Civic Ass'n of the Deaf, Inc. v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996) 21 Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995) 21 Dertz v. City of Chicago, 912 F. Supp. 319 (N.D. Ill. 1995) 21 Ferguson v. City of Phoenix, 931 F. Supp. 688 (D. Ariz. 1996) 19 Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994) 18 Holihan v. Lucky Stores, Inc., 87 F.3d 193 (9th Cir. 1996) 20 Innovative Health Sys. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996) 19 Kornblau v. Dade County, 86 F.3d 193 (11th Cir. 1996) 20 Le v. Applied Biosys., 886 F. Supp. 717 (N.D. Cal. 1995) 20 Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995) 21 Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) 21 Orr v. Kindercare, No. S95-507 EJG/GGH (E.D. Calif. June 8, 1995) 20 Page iv -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06964 Paralyzed Veterans of America, et al. v. Ellerbe Becket Architect & Engineers, P.C., et al. (D.D.C. Civil Action No. 96-1354) (October 21, 1996) 8, 9, 17, 22 Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) 21 Pinnock v. International House of Pancakes, 844 F. Supp. 574 (S.D. Cal. 1993), cert. denied, 114 S. Ct. 2726 (1994) 20 Thomas Jefferson Univ. v. Shalala, 114 S.Ct. 2381 (1994) 16 Thompson v. Borg-Warner Protective Servs. Corp., No. C-94-4015 MHP, 1996 WL 162990 (N.D. Cal. Mar. 11, 1996) 20 Statutes: Page 29 U.S.C.A. S 792(a)(1) (West Supp. 1996) 5 29 U.S.C.A. S 792(a)(1)(B) (West Supp. 1996) 5 Americans with Disabilities Act of 1990 42 U.S.C. SS 12101 et seq. 3 42 U.S.C. S 12101(a)(5) 10 42 U.S.C. S 12101(b)(1) 3 42 U.S.C. S 12101(b)(4) 3 42 U.S.C. S 12132 19 42 U.S.C. S 12181-12189 1, 3 42 U.S.C. S 12181(2) 3, 32 42 U.S.C. S 12181(7) 3, 4, 32, 33 42 U.S.C. S 12182(a) 4 42 U.S.C. S 12183 4 42 U.S.C. S 12183(a) 4, 6, 7 42 U.S.C. S 12183(a)(1) 23 42 U.S.C. S 12186(b) 4, 22 42 U.S.C. S 12186(c) 5, 22, 27 42 U.S.C. S 12204 22 42 U.S.C. S 12206(a)(1) 13 42 U.S.C. S 12206(c)(3) 13 Page v -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06965 Regulations: Page 28 C.F.R. Part 36 5 S 36.104 33 S 36.207 34 S 36.308 24 Part 36, App. A 1, 5, 24 S 2.2 31 S 3.5 5, 34 S 4.1.3(1) 35 S 4.1.3(11) 34 S 4.1.3(19) 5 S 4.33 5 S 4.33.3 6, 28, 29, 30 Part 36, App. B. 23, 24, 25 Legislative Materials: Page S. Rep. No. 116, 101st Cong., 1st Sess. (1989). 8 Other: Page Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, 56 Fed. Reg. 35408 (July 26, 1991) 22 Americans with Disabilities Act Title III Technical Assistance Manual S III-7.5180 (Supp. 1994) 14 Page vi -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06966 I. INTRODUCTION Plaintiffs Independent Living Resources, a non-profit entity organized to protect and promote the rights of individuals with disabilities, and Robert W. Pike, an individual who uses a wheelchair, seek partial summary judgment in their action against the owner of the recently constructed Rose Garden arena. The plaintiffs assert that the owner has violated title III of the Americans with Disabilities Act of 1990, 42 U.S.C. SS 12181 through 12189 (the "ADA" or the "Act"), because numerous features of the Rose Garden do not comply with the ADA's architectural standards for new construction, the Standards for Accessible Design. See 28 C.F.R. Part 36, Appendix A ("the Standards"). Among other things, the plaintiffs contend that the Rose Garden's wheelchair seating locations fail to comply with the Standards requirements regarding the number of wheelchair locations, integration of wheelchair locations with the rest of the arena's seating, adequate companion seating, and wheelchair seating locations that provide wheelchair users with lines of sight to the arena floor that are comparable to those for other spectators. The lines of sight are not comparable for wheelchair users, plaintiffs argue, because wheelchair seating areas have been located behind other seating such that when other spectators stand up (as happens quite frequently), wheelchair users will no longer be able to see what is happening, while other spectators will be able to see (by standing themselves). Page 1 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06967 Also pending before the Court are various motions filed by defendant Oregon Arena Corporation ("OAC"), including a motion for summary judgment.1 OAC advances various arguments in support of its motion for summary judgment, contesting the plaintiffs' view of what the ADA's architectural standards require in a new stadium, and attacking the Justice Department's interpretation of the requirement for "comparable" lines of sight for wheelchair users. Despite the defendant's strenuous objections, however, the plaintiffs are correct with respect to each of the issues relating to the design and location of the Rose Garden's wheelchair seating locations. In particular, the plaintiffs correctly argue that title III of the ADA and the Standards require that new arenas be designed to allow patrons who use wheelchairs to see what is happening on the floor or field, even when other patrons stand up. Accordingly, the Court should grant the plaintiffs' motion for summary judgment, and deny the defendant's motion for summary judgment. ____________________ 1 The United States does not address the defendant's motion to dismiss for mootness (or in the alternative, for summary judgment), or the defendant's motion to bar plaintiffs' proposed experts. In addition, while the United States does have an interest in the defendant's motion to compel plaintiffs' expert James L. Terry to answer certain questions put to him at his deposition, the United States does not here address issues raised by that motion, deferring instead to counsel for plaintiffs. Page 2 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06968 II. STATUTORY AND REGULATORY FRAMEWORK 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. This case concerns title III of the ADA, 42 U.S.C. SS 12181 through 12189, which prohibits discrimination on the basis of disability in both public accommodations and commercial facilities.2 Title III's general mandate prohibiting _____________________ 2 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 statute defines "public accommodations" to be entities (1) whose operations affect commerce, and (2) that fall into one or more of twelve categories of public accommodations set out in the Act. See 42 U.S.C. S 12181(7). The category of public accommodations, while still large, is not as broadly inclusive as "commercial (continued...) Page 3 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06969 discrimination against individuals with disabilities 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 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 303 of the Act adds another category of prohibited activity -- the design and construction of new facilities that are not accessible to and usable by individuals with disabilities -- and extends this prohibition not just to public accommodations, but to all commercial facilities. See 42 U.S.C. S 12183. The Act directs the Attorney General to issue regulations to carry out the provisions of title III. 42 U.S.C. S 12186(b). Section 303 specifically requires that the regulations include, or incorporate by reference, architectural accessibility standards. 42 U.S.C. S 12183(a). The statute provides that these architectural standards must meet or exceed those developed by another federal agency, the Architectural and Transportation ___________________ 2(... continued) facilities." Many facilities meet both definitions. The Rose Garden, for instance, is a nonresidential facility whose operations affect commerce, and thus is a "commercial facility." It also is a "public accommodation," as it falls within at least two of the statute's categories of public accommodation: it is a "stadium, or other place of exhibition or entertainment," within the meaning of section 301(7)(C), and it is also 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). Page 4 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06970 Barriers Compliance Board (also known as the "Access Board"). The architectural standards promulgated by the Attorney General must be "consistent with the minimum guidelines and requirements issued by" the Access Board. 42 U.S.C. S 12186(c).3 As required by the statute, the Attorney General timely issued a title III implementing regulation on July 26, 1991. See 28 C.F.R. Part 36. The regulation includes architectural standards for newly constructed public accommodations and commercial facilities, entitled the Standards for Accessible Design. See 28 C.F.R. Part 36, Appendix A ("the Standards"). Among other things, the Standards set several requirements for wheelchair seating locations in stadiums, arenas, and other "assembly areas." See Standards SS 4.1.3(19), 4.33. 4 ______________________ 3 The Access Board is composed of twenty-four members, eleven of whom are representatives of various federal agencies, and thirteen of whom are private citizens appointed to the Board by the President. 29 U.S.C.A. S 792(a)(1) (West Supp. 1996). The Attorney General, as head of the Department of Justice, is one of the eleven federal members of the Board. 29 U.S.C.A. S 792(a)(1)(B) (West Supp. 1996). 4 An "assembly area" is defined by the Standards to be any room or space accommodating a group of individuals for recreational, educational, political, social, or amusement purposes, or for the consumption of food and drink. Standards S 3.5 (definition of assembly area). The Standards require that assembly areas with fixed seating provide a certain number of wheelchair seating locations (tied to the total number of fixed seats in the assembly area), and that these wheelchair seating locations comply with various requirements governing their size, floor surface, placement, companion seating, and so on. See Standards S 4.1.3(19). Page 5 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06971 III. ARGUMENT A. In arenas like the Rose Garden, where other spectators can be expected to stand, wheelchair seating locations must provide wheelchair users with lines of sight over standing spectators. 1. Title III of the ADA requires the Rose Garden to be readily accessible to and usable by individuals with disabilities. Section 303 of the ADA requires that newly constructed facilities be "readily accessible to and usable by individuals with disabilities . . . in accordance with standards set forth . . . in regulations issued under this subchapter." 42 U.S.C. S 12183(a). The standards referred to -- the Attorney General's Standards for Accessible Design -- specifically address the placement of wheelchair seating locations in newly constructed stadiums, arenas, and other assembly areas with fixed seating, requiring that [W]heelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. . . . 28 C.F.R Part 36, Appendix A, S 4.33.3 (emphasis added). The Department of Justice interprets the language in the Standards requiring "lines of sight comparable to those for members of the general public" to mean that wheelchair locations in newly constructed arenas must provide a line of sight over standing spectators in facilities where spectators may be expected to stand during the events. Page 6 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06972 2. The Department of Justice's interpretation of title III of the ADA and the title III regulation is reasonable. The Department's reading of section 4.33.3 of the Standards makes perfect sense: if other spectators can see over standing spectators (by standing up themselves), then spectators using wheelchairs must also be able to see over standing spectators, or they will not have a "comparable" line of sight. Put differently, the developers, architects, and engineers who design new stadiums can no longer rely on the assumption that when patrons stand, all patrons will still be able to see, by standing up themselves. Rather, they must replace that assumption with a design feature that recognizes that most wheelchair users cannot stand in order to see over others in front of them. Just as the ADA does not allow a new facility to be designed and constructed with an entrance that requires wheelchair users to stand, walk, or climb stairs, so does the ADA forbid an arena to be designed and constructed so that wheelchair users must be able to walk or stand in order to see what is happening on the court or the ice or the stage. The Department's reading of the "comparable" lines of sight language of the Standards is buttressed by the language and purpose of the statute itself. The new construction provision requires that new facilities be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. S 12183(a). The legislative history of the Act explains that this provision is intended to assure "both ready access to the facility and Page 7 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06973 usability of its features and equipment and of the goods, services, and programs available therein." S. Rep. No. 116, 101st Cong., 1st Sess. 69 (1989). The central purpose of a sports arena like the Rose Garden is to provide a facility in which large numbers of people can gather and view an athletic or other event. At many of those events -- basketball games, music concerts, and others -- spectators will stand for much or all of the event, including the most interesting and exciting portions of the event. Having a line of sight over standing spectators will be critical to enjoyment of events at the facility. To sanction designs which relegate wheelchair users to looking at the backs of the people in front of them during those periods is to diminish the ability of wheelchair users to participate in and enjoy the event. It is precisely the kind of discrimination that the ADA is intended to prevent. The only court to consider the issue has come to precisely this conclusion. In Paralyzed Veterans of America, et al. v. Ellerbe Becket Architects & Engineers, P.C., et al. (D.D.C. Civ. Action No. 96-1354 (TFH)), plaintiffs alleged that the design of the MCI Center, a new indoor arena now under construction in downtown Washington, D.C., violated the ADA by failing to provide wheelchair users with lines of sight over standing spectators. The defendants moved for summary judgment on precisely the same grounds that defendants here move for summary judgment. In a ruling from the bench, the court denied the MCI Center Page 8 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06974 defendants' motion.5 The Court found that "the ADA requires a higher degree of accommodation" than previously was required, and that the ADA is "a new remedial law adopted by the Congress of the United States to put those who are disabled in as equal a position as possible with the general public." PVA, Transcript of Bench Op. at 7, 12 (October 21, 1996) (copy attached as Exhibit A). Accordingly, the MCI Center court held that if the Justice Department's interpretation of the "comparable" lines of sight requirement were not correct, there would be really no new requirements under the ADA, it seems to the Court, and that this new construction then could go along as other construction always has, which would simply not bring any relief to people in the plaintiffs' position that I believe that the statute was meant to cover. Id. at 16-17. This Court too should reject the argument pressed by OAC that it is entitled to continue designing facilities according to what it calls the "historical and common understanding of the phrase "comparable" line of sight." OAC's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment at 31 (hereinafter "OAC's Memorandum"). It is no answer to the plaintiffs' claim to say that arenas have been designed this way in the past -- that there is (or was) a generally understood and accepted industry standard which called for sight lines to be calculated over seated patrons only. Indeed, in _______________________ 5 Trial has since been held in the MCI Center case, and a written opinion is expected within the next several days or weeks. Page 9 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06975 adopting the ADA, Congress explicitly recognized that individuals with disabilities continually encounter various forms of discrimination, including [among other things] . . . the discriminatory effects of architectural, transportation, and communication barriers, . . . and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities. 42 U.S.C. S 12101 (a) (5). Thus, it is the very purpose of the ADA to change the way new facilities, including sports arenas, are designed and constructed -- to discard standards and practices which have relegated individuals with disabilities to diminished participation in the day to day life of our society. Surprisingly, in advancing its view that wheelchair users at the Rose Garden have lines of sight that are "comparable" to those of other spectators, OAC nowhere argues that wheelchair users at the Rose Garden are actually able to see what other spectators are able to see. Instead, OAC argues that the Department of Justices's views on the issue, as expressed in the Department's Technical Assistance Manual for title III of the ADA, do not have the force of law, are not binding, and are entitled to no deference. OAC has missed the point. The Department has consistently acknowledged that the TA Manual, standing alone, does not have the force of law and is not binding. The TA Manual only expresses the Department's views on the correct interpretation of title III of the ADA and its title III regulation. While the Department contends that its interpretation of the Standards is entitled to substantial Page 10 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06976 deference, because the Department of Justice is the agency directed by Congress to promulgate and enforce architectural standards for new construction, the central issue here is not the nature or validity of the Department's Technical Assistance Manual. The central issue is whether title III of the ADA and the Standards require the Rose Garden to provide wheelchair seating locations so that patrons who sit in wheelchairs can see the action on the arena floor. In light of the statutory language and purpose, the only sensible conclusion is that the "comparable" lines of sight requirement includes lines of sight over those standing spectators, in arenas where spectators can be expected to stand. B. The Department of Justice's interpretation of the ADA's architectural requirements is entitled to deference. 1. The Department of Justice has consistently taken the same view of the Standards' line of sight requirement. In the course of pursuing its enforcement duties, the Department has had to address the meaning of the language of section 4.33.3 of the Standards requiring "comparable" lines of sight for wheelchair users on several occasions. The issue first arose in early 1993, a few weeks after the new construction requirements went into effect, on January 26, 1993, in the course of the Department's investigation of several newly constructed Olympic venues in and around Atlanta, Georgia. The investigation included the new 85,000 seat Olympic Stadium, which was the main venue for the 1996 Summer Olympic Games, and is now being Page 11 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06977 converted to a 45,000 seat baseball stadium. A central objective of the Department's investigation of these facilities was to insure that all of the wheelchair seating locations in the facilities in question would provide a line of sight over standing spectators. The Department's efforts were successful: in both the Olympic and baseball stadiums, as well as three other new Olympic venues, wheelchair users will have "comparable" lines of sight allowing them to see over standing spectators.6 In all of its enforcement activities since the Olympic Stadium, the Department has repeatedly and consistently taken one view: section 4.33.3 of the Standards requires that all or substantially all of the wheelchair locations provide lines of sight over standing spectators in stadiums and arenas where spectators can be expected to stand. These matters include, among several others, the Department's investigation of the Rose _______________________ 6 The wheelchair seating locations at two other newly constructed Olympic venues -- outdoor stadiums at Clark Atlanta University and Morris Brown College -- will also have lines of sight over standing spectators. In addition, a fourth Olympic venue, the newly constructed aquatic center (on the campus of the Georgia Institute of Technology) will have wheelchair locations with lines of sight over standing spectators in its permanent seating sections. In addition, when temporary seating was added to the Aquatic Center to expand its capacity for the Summer Games, half of the wheelchair locations in the temporary seating also provided lines of sight over standing spectators. By contrast, wheelchair locations at the new Olympic Tennis Center do not provide lines of sight over standing spectators, because tennis venues are not facilities at which spectators are expected to stand. (Indeed, the Department's investigation revealed that if spectators stand at a tennis event, the chair umpire will suspend play until spectators take their seats.) Page 12 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06978 Garden and an enforcement action recently filed by the Department in the United States District Court for the District of Minnesota against the Ellerbe Becket architectural firm, designers of the Rose Garden and several other similar arenas around the country. United States v. Ellerbe Becket, Inc., (D. Minn. Civil Action No. 4-96-995) (A copy of the United States' complaint is attached as Exhibit B). In that action, the United States alleges that Ellerbe Becket has engaged in a pattern or practice of illegal discrimination in violation of title III of the ADA by repeatedly designing new arenas with wheelchair locations that do not provide lines of sight over standing spectators. In addition to consistently expressing the same view in its efforts to enforce the Act, the Department has also published or provided its view in various other ways. The Department first published its position in its Title III Technical Assistance Manual, in which the Department publishes informal, non-binding guidance on questions arising on all aspects of title III.7 In ______________________ 7 The ADA itself provides for the issuance of the TA Manuals, directing the Attorney General, in consultation with various other federal officials, to develop and implement a technical assistance plan, "to assist entities covered under [the Act] . . . in understanding the responsibility of such entities . . . under [this Act]." 42 U.S.C. S 12206(a)(1). The statute further directs the Attorney General and others with enforcement responsibilities "to ensure the availability and provision of appropriate technical assistance manuals to individuals or entities with rights or duties under [the Act] . . . ." 42 U.S.C. S 12206(c)(3). Thus, the TA Manual is not in any sense a regulation. Rather, it provides informal guidance about the Department's interpretation of the ADA's statutory and regulatory requirements. Given that Congress explicitly directed the (continued...) Page 13 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06979 particular, the Department included the following statement in its 1994 supplement to the TA Manual:8 [i]n addition to requiring companion seating and dispersion of wheelchair locations, ADAAG 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. U.S. Department of Justice, Americans with Disabilities Act Title III Technical Assistance Manual, 1994 Supplement S III-7.5180 at 13 (Supp. 1994) (copy attached as Exhibit C). The Department has expressed the same position in letters to members of Congress, and in a technical assistance document directed specifically to _____________________ 7(...continued) Attorney General to issue this informal guidance, however, it should be considered a particularly valuable source for understanding title III and the title III regulation. 8 The Department published supplements to the TA Manual in both 1993 and 1994. As the Department pursued its enforcement and technical assistance mandates in the first months and years after the ADA went into effect, it becomes clear -- as one might expect with a new statute and new regulation -- that particular issues were not fully understood, and that additional guidance would assist covered entities and individuals with disabilities in understanding their respective rights and obligations. Thus, the Department published two supplements to the Technical Assistance Manual, addressing issues that arose in the course of its enforcement and technical assistance efforts, including issues regarding the Standards. Page 14 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06980 the requirements for new stadiums and arenas.9 Most recently, the Department reiterated its view in letters sent to the commissioners of four national sports leagues -- the National Basketball Association, the National Football League, Major League Baseball, and the National Hockey League.10 In sum, on every occasion on which the Department has addressed this issue since the new construction standards went into effect in January 1993, the Department has taken the same position: in facilities where spectators can be expected to stand, comparable lines of sight require wheelchair locations that provide lines of sight over standing spectators.11 _____________________ 9 See Letter dated September 14, 1995 from Deval L. Patrick, Assistant Attorney General for Civil Rights, to Congressman Bill Paxon (copy attached as Exhibit D); U.S. Department of Justice, "Accessible Stadiums" (undated) (copy attached as Exhibit E). 10 See, e.g., Letter dated October 22, 1996 from Deval L. Patrick, Assistant Attorney General for Civil Rights, to David Stern, Commissioner of the National Basketball Association (copy attached as Exhibit F). 11 In an attempt to obscure the Department's consistently held view, OAC proffers two items from before the ADA's new construction provision went into effect: an affidavit from a former head of the Civil Rights Division, and certain oral statements made by a mid-level official of the Civil Rights Division in November 1992. Neither can bear the weight put upon them by OAC. In his affidavit, Mr. John Dunne states that during the time he served in the Department, the Department did not take the position that wheelchair users had to be able to see over standing spectators. Even assuming for the sake of argument that his recollection is accurate, Mr. Dunne's statements are irrelevant. He acknowledges that he left the Department on January 20, 1993, just before the new construction standards went into effect, before the Department confronted the issue in the (continued...) Page 15 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06981 2. Several federal courts have already deferred to the Department's interpretations of its ADA regulations. It is well established that the courts "must give substantial deference to an agency's interpretation of its own regulations" unless "plainly erroneous or inconsistent with the regulation." Thomas Jefferson University v. Shalala, 114 S. Ct. 2381, 2386 (1994) (internal quotes omitted). See also Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir. 1996) (task of court is not decide which among competing interpretations best serves regulatory purpose; rather, must give agency's interpretation controlling weight unless is it plainly erroneous or inconsistent with the regulation); Citizens Action League v. Kizer, 887 F.2d 1003, 1007 (9th Cir. 1989) (view of a statute by agency charged with its adminstration entitled to considerable deference; agency's view need not be the only permissible statutory construction). Recognizing this well- established principle, several federal courts have deferred to _________________________ 11(...continued) course of an investigation of a new facility. He does not offer any view -- and indeed, could not offer any view -- as to the position the Department took in any actual case or investigation, once the Standards were in effect. His affidavit is thus of little consequence. Similarly, Ms. Bowen's speech in Phoenix in November 1992 -- in which she stated that the ADAAG did not include a requirement for a line of sight over standing spectators -- also occurred before the new construction standards went into effect on January 26, 1993. That Mr. Dunne vouches for Ms. Bowen cannot change the timing of her statements, or in any negate the consistency of the Department's position in every matter in which the issue has arisen. Page 16 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06982 the Department of Justice's interpretation of its ADA regulations. The MCI Center court deferred to the Department's position on the Standards' line of sight requirement; another court has deferred to the Department's interpretation of another portion of section 4.33.3 of the Standards, and several courts have deferred to the Department's Technical Assistance Manuals, on a variety of issues. With respect to the line of sight requirement in particular, the Court in the MCI Center case deferred to the position taken by the Department in its enforcement activities. The Court reviewed several documents related to those efforts, observing that "[i]t's not the Court's position to second-guess the administrative agency assigned the task of interpreting its regulations." PVA, Transcript of Bench Op. at 8-9, 13-14 (referring to 12 letters issued by the Department in various contexts, all stating that failing to provide wheelchair users with a line of sight over standing spectators violates the ADA). Citing the Thomas Jefferson case, the Court went on to hold that "I have to give substantial deference to the regulation interpretation by the agency . . . ." Id. at 15. The Court concluded that the Justice Department's interpretation of the regulation "is in accordance with the statutory mandate of the ADA, even though it changes the historic meaning of comparable line of sight in the prior existing law." Id. at 14. Page 17 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06983 Similarly, in Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994), the court deferred to the title III TA Manual in a case construing other language from section 4.33.3 of the Standards. In that case the plaintiff sought to have a movie theater disperse its wheelchair seating locations throughout the theater. The defendant argued that an "exception" to section 4.33.3 permitted "clustering" of wheelchair locations in the theater. In resolving the dispute, the court relied heavily on the Department of Justice's interpretation of section 4.33.3 in the Technical Assistance Manual. The court noted that [t]he United States Department of Justice is charged by statute with the implementation of Title III of the ADA, 42 U.S.C. S 12186(b), and to that end it has promulgated conventional regulations and published literature interpreting the regulations, including a "technical assistance" manual, pursuant to 42 U.S.C. S 12206(c)(3) . . . . Although the parties do not agree as to the force and effect each is to be given, the Court will deem them as regulations and interpretations of regulations, the latter to be given controlling weight as to the former. Id. at 36 n.4. The court concluded that "[a]s the author of the regulation, the Department of Justice is also the principal arbiter as to its meaning," and adopted the reading of section 4.33.3 advanced by the government. Id. at 38 (citing Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994)). The Fiedler court also relied upon statements in the TA Manual, including statements in the 1994 supplement to the TA Manual, in addressing other questions raised by the case. See id. at 37 n.6 (relying on statement in 1994 supplement to TA Manual as to status of private lessees of government property under title III), and 37 Page 18 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06984 n.7 (title III does not disturb other federal laws which provide equal or greater protections for individuals with disabilities.) Courts have also deferred to the Department's TA Manuals for both titles II and III on a variety of other issues. In a case arising in the Ninth Circuit, Ferguson v. City of Phoenix, 931 F. Supp. 688 (D. Ariz. 1996), the court deferred to the Department's TA Manual for title II of the ADA (the title applicable to state and local governments). In that case deaf plaintiffs challenged the adequacy of the city of Phoenix' 911 emergency system, with respect to its ability to handle incoming calls from individuals using telecommunications devices for deaf persons (TDDs). Among other things, the plaintiffs relied upon statements in the Department's title II TA Manual describing features that the Department believes 911 systems must possess. The court first observed that (as with title III) Congress had directed the Attorney General to promulgate regulations necessary to implement title II (which prohibits disability based discrimination by state and local governments -- see 42 U.S.C. S 12132), and to publish a technical assistance manual. Slip op. at 9-11. Then, relying in part on Thomas Jefferson, the court held that because the Department's views, as expressed in the TA Manual, were reasonable interpretations of its own regulations, it should defer to them. Id. at 12-15. See also Innovative Health Sys. v. City of White Plains, 931 F. Supp 222 (S.D.N.Y. 1996) (Department of Justice's title II TA Manual entitle to controlling weight Page 19 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06985 unless plainly erroneous or inconsistent with the regulations); Orr v. Kindercare, Civ. No. S-95-507 EJG/GGH (E.D. Cal. June 9, 1995), slip op. at 5-6 (attached as Exhibit G) (Attorney General's interpretations of the title III regulations are entitled to substantial deference; moreover, "the government's interpretations of the statute and regulations implemented thereunder, [even though] articulated for the first time in this lawsuit, are at the very least, informative and useful."). Cf. Pinnock v. International House of Pancakes, 844 F.Supp. 574 (S.D. Cal. 1993), cert. denied, 114 S. Ct. 2726 (1994) (rejecting a constitutional challenge to title III of the ADA as void for vagueness in part by considering clarification of statute found in administrative regulations and the title III TA Manual).12 Many more decisions cite or rely upon the TA Manuals as authority for the courts' statutory and regulatory interpretations of the ADA, without discussion of the level of deference afforded.13 __________________________ 12 While OAC is correct in pointing out there are cases in which federal courts have refused to defer to the Title I Technical Assistance Manual published by the EEOC, see OAC's Memorandum at 23-24, other federal courts have deferred to the Title I TA Manual. See Thompson v. Borg-Warner Protective Services Corp., No. C-94-4015 MHP, 1996 WL 162990 at *4 (N.D. Cal. Mar. 11, 1996) (according "broad deference to interpre- tations in the EEOC 1995 ADA Manual on Enforcement Guidance); Le v. Applied Biosystems, 886 F. Supp. 717, 720 n.2 (N.D. Cal. 1995) ("Although not binding on [the] court, [the Title I TA Manual's] interpretation of the ADA is instructive"). 13 See, e.g., Holihan v. Lucky Stores, Inc., 87 F.3d 362, 365 n.3 (9th Cir. 1996) (Title I); Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996) (Title III); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1123, 1114 (8th Cir. 1995) (Title (continued...) Page 20 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06986 3. OAC's arguments that the Court should not defer to the Department's interpretation lack merit. a. The Standards for Accessible Design are an integral part of the Department of Justice's title III implementing regulation. As described above (see discussion supra at 4-5), the Act directs the Attorney General to issue regulations to implement title III of the ADA, including architectural standards for new construction consistent with minimum guidelines developed by the Access Board. Contrary to the OAC's assertion, the architectural standards included within the Department's title III regulation are not another agency's regulation, but are manifestly part -- indeed, a central, crucial part -- of the Department's own regulation. Initially, the language of the statute makes clear that the actions of the Attorney General and the Access Board are of different legal effect: while the Access Board is to issue minimum "guidelines," the Attorney General is to issue "regulations," including architectural standards which must be consistent with the Access Board's "guidelines." See 42 U.S.C. ________________________ 13(...continued) I); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (Title I); Adelman v. Dunmire, No. CIV.A. 95-4039, 1996 WL 107853 at *5 n.7 (E.D. Pa. Mar. 12, 1996) (title II); Civic Ass'n. of the Deaf, Inc. v. Giuliani, 915 F.Supp. 622, 635 (S.D.N.Y. 1996) (Title II); Dertz v. City of Chicago, 912 F. Supp. 319 (N.D. Ill. 1995) (Title II); Clarkson v. Coughlin, 898 F. Supp. 1019, 1037-38 (S.D.N.Y. 1995) (Title II); Bechtel v. East Penn Sch. Dist., No. Civ. A. 93-4898, 1994 WL 3396 at *2-*3 (E.D. Pa. Jan. 4, 1994); Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993) (Title II); Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) (Title II). Page 21 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06987 S 12186(b) (Attorney General to issue "regulations"); 42 U.S.C. S 12204 (Access Board to issue "minimum guidelines"); 42 U.S.C. S 12186(c) (standards included in regulations issued by Attorney General must be consistent with minimum guidelines issued by Access Board). The "guidelines" issued by the Access Board have no regulatory force or effect themselves; the architectural standards in question are a "regulation," and have regulatory effect, only because they have been included by the Department of Justice in the Department's title III regulation. Indeed, the Board's "guidelines" explicitly recognize that [t]hese guidelines are to be applied during the design, construction, and alteration of such buildings and facilities to the extent required by regulations issued by Federal 'agencies, including the Department of Justice, under the Americans with Disabilities Act of 1990. Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, 56 Fed. Reg. 35408, 35459 (1991) (emphasis added).14 Moreover, title III vests the Attorney General with considerable discretion to set architectural standards: the only requirement is that they be at least as strict as the "minimum guidelines" to be developed by the Access Board. 42 U.S.C. _______________________ 14 After reviewing the statutorily designated roles for the Access Board and the Attorney General, the MCI Center Court ruled that "[u]nder the law, the Department of Justice is given the responsibility to enforce and set the regulations," and "[t]he [Access] Board is not listed as one of the agencies having primary responsibility for implementing the ADA . . . . It has a supplementary or secondary role . . . ." PVA, Transcript of Bench Op. at 6, 7 (citations omitted). Page 22 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06988 S 12186(c). Thus, while the Department adopted the Board's guidelines (the ADA Accessibility Guidelines, or "ADAAG") as its Standards for Accessible Design without modification, it was not required to do so, and did so only because, as the Department explained when it issued its final title III regulation, [a]s 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 ADAAG. Many individuals and groups commented directly to the Department's docket, or at its public hearings, about ADAAG. The comments received on ADAAG, whether by the Board or by this Department, were toroughly analyzed and considered by the Department in the context of whether the proposed ADAAG was consistent with the ADA and suitable for adoption as both guidelines and standards. The Department is convinced that ADAAG as adopted in its final form is appropriate for these purposes. The final guidelines, adopted here as standards, will ensure the high level of access contemplated by Congress, consistent with the ADA's balance between the interests of people with disabilities and the business community. 28 C.F.R. Part 36, Appendix B at 634. Indeed, in promulgating the title III implementing regulation, the Department did not simply incorporate the Board's ADAAG by reference (as it might have done consistently with the requirements of the Act -- see 42 U.S.C. S 12183(a)(1) (architectural standards to be "set forth or incorporated by reference in regulations issued under this subchapter")). To the contrary, the Department carefully integrated the ADAAG into its title III regulation, modifying other parts of the regulation to produce a coherent whole. As explained in the preamble to the final title III regulation, the Department deleted certain parts of subpart D of the rule because they were included in the ADAAG, Page 23 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06989 and retained other parts of subpart D to be faithful to the statute, even though those provisions were partially or wholly repeated in the ADAAG. See 28 C.F.R. Part 36, Appendix B at 633. Finally, the ADAAG were renamed the Standards for Accessible Design, to make clear that these were not "guidelines" -- which might be thought to be merely suggestive -- but "standards" with the force of law, and to distinguish the Department of Justice's legally binding regulation from the Board's non-binding ADAAG. See 28 C.F.R. Part 36, Appendix A (the "Standards for Accessible Design"). When it interprets the regulation and the Standards for Accessible Design, the Department is unquestionably construing its own regulation.15 b. The Department of Justice did not adopt the Access Board's commentary on the ADAAG. In contending that the language of the Standards requiring "comparable" lines of sight does not require that wheelchair seating locations provide lines of sight over standing _________________________ 15 Indeed, the language of section 4.33.3 of the Standards at issue here -- requiring "lines of sight comparable to those for members of the general public" -- also appears in section 36.308 of the Department's title III regulation. See 28 C.F.R. S 36.308(a)(ii)(B) (setting standards for removal of architectural barriers in assembly areas constructed before the ADA went into effect). The Access Board played no role whatsoever in the drafting or adopting of section 36.308; that section was drafted and adopted entirely by the Department. Presumably, OAC would not contend that only the Access Board can interpret authoritatively section 36.308 of the title III regulation -- and yet, OAC does not explain why the Department should not have the authority to interpret the same language, appearing in two places in the same regulation. Page 24 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06990 spectators, OAC makes much of the Board's statement, in its commentary to the final ADAAG, that it would return to that issue in future rule-making. What OAC does not point out, however, is that while the Department adopted the Board's guidelines and incorporated them into its regulation, the Department did not adopt or incorporate the Board's commentary on the final ADAAG. If it had wished to do so, the Department certainly could have adopted the Board's discussion of the ADAAG. The Department, however, wrote and published its own lengthy commentary on the new construction requirements of the ADA, the architectural standards, and the interrelationship between the standards and other parts of the regulation and the statute. See 28 C.F.R. Part 36, Appendix B at 619-38. In doing so, the Department did not specifically address any of the comments made by the Board the same day, either to endorse or to disavow them. The commentary issued by the Department does not specifically address section 4.33.3 of the Standards, or the issue of line of sight over standing spectators. Id. Ultimately, OAC's extended argument about various statements, actions, and studies by the Access Board is beside the point. It is the Department of Justice -- not the Access Board -- that is charged with enforcing the Standards, and it is the Department of Justice which must address the questions that arise in the course of enforcing the statute and the Department's regulation in specific cases. Thus, while the Access Board has Page 25 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06991 continued to study issues related to wheelchair seating in assembly areas -- as it has continued to study dozens of accessibility issues, pursuant to its statutory mandate -- the Department of Justice has discharged its statutory mandate: to enforce the statute and regulation to insure that new facilities are readily accessible to and usable by individuals with disabilities.16 ________________________ 16 Indeed, OAC itself makes clear that the Access Board has continued to study these issues. At several points in its memorandum in support of its motion for summary judgment, OAC cites or refers to various studies or reports prepared for the Access Board. See, e.g., OAC's Memorandum at 8 (citing report of ADAAG Review Federal Advisory Committee); 14 (citing report of the Center for Accessible Housing on Accessibility in Assembly Areas); 16 (citing another report of the ADAAG Review Federal Advisory Committee); 19 (citing report of Recreation Access Advisory Committee). However, OAC accords a significance to these studies that they do not have. None of them has been adopted or acted upon by the Access Board in any way. These reports may or may not have any impact in future rulemaking. It is part of the Access Board's function to continue to study accessibility issues; that they do so in no way calls into question the requirements that have actually been adopted by notice and comment rulemaking as part of the Access Board's minimum guidelines, and which have also been adopted by the Justice Department as part of its title III implementing regulation, and thus have the force of law. A case in point is the most recent of the reports cited by OAC, the report of the ADAAG Review Federal Advisory Committee, which OAC asserts "will serve as the basis for future rulemaking amending the ADAAG." See OAC's Memorandum at 8 n.7. OAC's assertion is premature. At this point, the report of the advisory committee is only that -- a report. The report's recommendations may or may not be accepted by the Board, and even if accepted, may be revised or modified. Any recommendations that are accepted could only become part of the Access Board's minimum guidelines after notice and comment, which could further alter the content of the requirements. Finally, if the Access Board does ultimately modify its minimum guidelines in some fashion, it would then fall to the Department of Justice to (continued...) Page 26 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06992 c. In addition to failing to provide lines of sight over standing spectators, the wheelchair seating locations at the Rose Garden violate the requirements of the Standards in several other respects. Irrespective of the debate over the line of sight over standing spectators (and the question of deferring to the Justice Department's interpretation of the title III regulation), the wheelchair seating locations at the Rose Garden violate the Standards in several other, equally important respects. These include: 1) relegating a large percentage of the wheelchair seating locations -- and only wheelchair seating -- to Level 7 of the arena (the highest level of the arena, and thus the farthest from the playing surface); 2) failing to distribute the remaining wheelchair locations around the arena, so that wheelchair users do not have a choice of admission prices and accommodations equivalent to the choice provided to other patrons; and 3) failing to provide adequate seating for the companions of wheelchair users. _____________________________ 16 (...continued) examine the Standards for Accessible Design, to determine whether the Standards or some parts of them were inconsistent with the Access Board's new guidelines. The Department might be required to propose changes to the Standards, which would themselves have to go through notice and comment rulemaking. Thus, even if, as OAC suggests, the Access Board eventually adopts a new guideline reducing the total number of wheelchair locations required in new arenas (which is far from certain), the Department would not be required to make any change in the current Standards, because the statute requires only that the Attorney General's standards be consistent with the minimum guidelines promulgated by the Access Board. See 42 U.S.C. S 12186(c). Requiring more wheelchair locations than are called for in the minimum guidelines would thus be permissible. Page 27 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06993 1. The wheelchair seating locations on Level 7 of the Rose Garden are not an integral part of the arena's fixed seating plan. In addition to requiring "comparable" lines of sight for wheelchair users, the Standards establish several other requirements for wheelchair seating locations in new arenas. The first of these is that wheelchair areas "be an integral part of any fixed seating plan." Standards S 4.33.3. This requirement embodies one of the central aims of the ADA -- to end years of unnecessary segregation of people with disabilities by integrating them, as fully as possible, into all aspects of our society's daily activities. OAC has disregarded this requirement. Apart from seating in the private suites, and depending on the configuration of the arena, the Rose Garden has approximately 18,655 fixed seats. See OAC's Memorandum at 8-9. As OAC explains, "[e]xcluding the suite level, the Rose Garden has three basic seating levels, represented by sections numbered in the 100s, 200s, and 300s." Id. at 13. All of the Rose Garden's fixed seats are in these levels. None of the arena's fixed seats are on Level 7. There are, however, 33 wheelchair locations on Level 7. Level 7 is the highest occupiable level in the arena, and is entirely separate from the other seating levels. By relegating 33 wheelchair users to the rafters, OAC done exactly what the integration requirement of section 4.33.3 was intended Page 28 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06994 to prevent -- OAC has segregated a large number of wheelchair users and their companions from all other spectators. 2. The wheelchair seating locations in other parts of the arena do not provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. The next requirement of section 4.33.3 is that wheelchair seating be distributed through all parts of the arena, so that when they are buying tickets to an event, people with disabilities will have the same choice of admission prices and seat locations as afforded to other spectators. See Standards S 4.33.3 ("Wheelchair areas . . . 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.") As with the integration requirement discussed above, this requirement is aimed at providing individuals with disabilities -- and wheelchair users in particular -- an equal opportunity to attend and participate in events held at facilities like the Rose Garden. OAC has also disregarded this requirement. As the plaintiffs demonstrate, the Rose Garden has been designed with very few wheelchair locations in the center sections of the arena, and none at all at the ends of the arena, behind the basketball or hockey goals. See Plaintiffs' Memorandum in Support of Motion for Partial Summary Judgment 28- 29, 28 n.7. Rather, wheelchair locations have been Page 29 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06995 disproportionately located in the corners of the arena. Id. (calculating that approximately two-thirds of the wheelchair seating locations are in the corners). As a result, wheelchair users do not have a choice of seating locations and ticket prices that is comparable to the choice available to other patrons. Because the wheelchair locations are not distributed evenly throughout the arena's seating areas, proportionately fewer wheelchair users will be able to choose "good" seats;17 proportionately more will be forced to accept seats in less desirable areas. By designing the stadium in this fashion, OAC has again relegated wheelchair users to the kind of second-class status that the ADA is intended to eradicate. 3. Wheelchair seating locations in the Rose Garden do not have fixed companion seats. Finally, section 4.33.3 also requires companion seating for wheelchair locations so that, like everyone else, wheelchair users are able to attend events and sit together with their companions. Moreover, section 4.33.3 reuires that wheelchair users' companions have seats equivalent to those provided for companions of other spectators. That is, "[a]t least one companion fixed seat shall be provided next to each wheelchair seating area." Standards S 4.33.3. OAC's argument that it is permissible to provide non-fixed, folding chairs for the __________________________ 17 OAC acknowledges that center court seating is "one of the most popular locations for seats." OAC Memorandum at 14. Page 30 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06996 companions of wheelchair users demonstrates a fundamental misreading of the Standards. The ADA does not permit arenas to provide less comfortable or less substantial seating for the companions of wheelchair users. OAC rests its argument about folding chairs on the "equivalent facilitation" provision of the Standards. That provision allows departures from the requirements of the Standards only when the use of alternative technologies or designs will provide greater or substantially equivalent access to and usability of the facility. Standards S 2.2. It is not a general exception to the requirements of the Standards, but rather is intended to be narrow, covering the infrequent circumstance in which some new architectural or technological development provides a better alternative for making facilities accessible to and usable by individuals with disabilities. Folding chairs can hardly be said to be a new or innovative design or technology. To the contrary, folding chairs were around, and had been for some time, when the Standards were adopted. By specifically requiring that companion seats be "fixed," the Standards intend that companions of wheelchair users have the same type of seating as other patrons. Non-fixed folding chairs do not suffice. Page 31 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06997 D. The Rose Garden's private suites fail to comply with the applicable requirements of the Standards. The plaintiffs are entirely correct in arguing that the arena's private suites are covered by title III of the ADA, and that each of them must comply with the applicable provisions of the Standards for Accessible Design.18 1. The suites are both places of public accommodation and commercial facilities, and are subject to the requirements of the Standards. OAC contends that the Rose Garden's private suites are not places of public accommodation because they are "provided neither for public nor common use." OAC's Memorandum at 39. However, the statutory definition of a public accommodation clearly covers facilities like the private suites.19 Under title III, a facility is considered a public accommodation if its operations affect commerce, and it falls into at least one of twelve categories of public accommodations. 42 U.S.C. S 12181(7). _____________________ 18 In addition, it seems quite clear that the plaintiffs have standing to raise these issues, despite the fact that neither Mr. Pike, Independent Living Resources, nor any of its members or clients have yet attempted to lease one of the arena's suites. Given the number and varied types of events held at the Rose Garden, it is entirely likely that one or more of ILR's clients will be asked to be a guest in one or more of the arena's suites. 19 In any event, the suites are "commercial facilities," which are also covered by title III's new construction requirements. See discussion supra, at 2-3. As noted above, see note 2, supra, commercial facilities are defined to be all facilities not intended for residential use, whose operations affect commerce. 42 U.S.C. S 12181(2). The private suites are certainly not intended for residential use, and there is no suggestion that the operations of the private suites do not affect commerce. Page 32 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06998 There can be little question that the operations of the private suites affect commerce, or that they fall into at least three of the specific categories of public accommodations: a restaurant, bar, or other establishment serving food or drink, 42 U.S.C. S 12181(7)((B); a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment, 42 U.S.C. S 12181(7)(C); and an auditorium, convention center, lecture hall, or other place of public gathering, 42 U.S.C. S 12181(7)(D). It makes no difference that the suites are not open to every member of the public -- many of the facilities identified in the statute as examples of public accommodations are facilities frequently open only to specific members of the public or invited guests: a convention center open only to authorized attendees, a private school open only to enrolled students, a gymnasium or golf course open only to its members, and so on. See 42 U.S.C. S 12181(7)(A-L). Similarly, it is of no consequence that the private suites are separate and distinct portions of the arena, and not entire structures unto themselves. Nothing in the statute suggests that coverage extends only to whole structures, and the Department of Justice's title III implementing regualtion plainly rejects such a position. That regualtion defines "facility" to mean "all or any portion of buildings, structures, sites, complexes," etc. 28 C.F.R. S 36.104. Indeed, in addressing public accommodations located within private residences, the regulation specifically Page 33 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-06999 contemplates that public accommodations may be located within other facilities. See 28 C.F.R. S 36.207. 2. The suites are "common use" spaces within the meaning of the Standards, and as such must meet various accessibility requirements. Although OAC advances an inventive argument in defense of its proposition that the suites are not "common use" areas within the meaning of the Standards, the suites are plainly covered as such. Under the Standards, the term "common use" [r]efers to those interior and exterior rooms, spaces, or elements that are made available for the use of a restricted group of people (for example, occupants of a homeless shelter, the occupants of an office building, or the guests of such occupants). Standards S 3.5 (definition of "Common use"). The central purpose of the private suites is to provide an interior room or space that is available for the use of a restricted group of people. And while OAC is correct that the Standards embody "scoping" requirements, see OAC's Memorandum at 39-40 -- requirements which specify how many of a particular feature must be accessible -- those scoping requirements establish accessibility requirements for each suite. For instance, each suite contains a toilet room. The Standards plainly require that each public and common use toilet room be fully accessible. Standards S 4.1.3(11). The Standards also require that at least one accessible route connect the facility's accessible entrances with all accessible spaces or elements within the facility -- including, for instance, all Page 34 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-07000 accessible toilet rooms. Standards S 4.1.3(1). Thus, in addition to meeting accessibility requirements within the suites, every suite must also be on an accessible route. CONCLUSION For the reasons stated, the United States urges the Court to grant the plaintiffs' motion for partial summary judgment, and to deny the defendant's motion for summary judgment. Respectfully submitted, KRISTINE OLSON OSB #73254 DEVAL L. PATRICK United States Attorney Assistant Attorney General District of Oregon Civil Rights Division (Signature) OKIANER CHRISTIAN DARK JOHN L. WODATCH Assistant U.S. Attorney JOAN A. MAGAGNA 888 S.W. 5th Avenue THOMAS M. CONTOIS Suite 100 Attorneys Portland, Oregon 97204-2024 U.S. Department of Justice (503) 727-1013 Civil Rights Division Disability Rights Section Post Office Box 66738 Washington, D.C. 20035-6738 (202) 514-6014 Dated: December 12, 1996 Page 35 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-07001 CERTIFICATE OF SERVICE I hereby certify that true copies of the Memorandum of Amicus Curiae United States in Support of Plaintiffs' Motion for Partial Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment were served upon Stephen L. Brischetto 1001 S.W. Fifth Avenue, Suite 1300 Portland, Oregon 97204 (503) 223-5814 attorney for plaintiffs, and David B. Howorth Foster, Pepper & Shefelman 101 S.W. Main, 15th Floor Portland, Oregon 97204 (503) 221-0607 and Frank C. Morris, Jr. Epstein, Becker & Green, P.C. 1227 25th Street, N.W., #700 Washington, D.C. 20037 (202) 861-0900 attorneys for defendant, by overnight common carrier Federal Express on December 12, 1996. (Signature) Thomas M. Contois U.S. Department of Justice Civil Rights Division Disability Rights Section Post Office Box 66738 Washington, D.C. 20035-6738 (202) 514-6014 Page 36 -- MEMORANDUM OF AMICUS CURIAE UNITED STATES 01-07002