For the district of south dakota western division united states of america



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1 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Civil Action No. 96-5012



v. )

)

DAYS INNS OF AMERICA, INC., )



HFS INCORPORATED, RICHARD HAUK, )

KARLA HAUK, DAVID BAUMANN d/b/a )

CAD DRAFTING PLUS, and DOUBLE H )

ENTERPRISES, INC., )

)

Defendants. )



)


UNITED STATES' MEMORANDUM IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

(ORAL ARGUMENT REQUESTED)

I. INTRODUCTION

The United States filed this suit against Days Inns of America, Inc. (“DIA”), and its parent company, HFS Incorporated (“HFS”), and the owners, architect, and builder of a newly constructed Days Inn hotel in Wall, South Dakota, alleging that those entities violated title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 through 12189 (“ADA” or the “Act”). The United States alleged that those parties violated title III of the ADA by designing and constructing the Wall Days Inn to be inaccessible to individuals with disabilities, in violation of section 303(a) of the ADA, 42 U.S.C. § 12183(a).1 The United States further alleges that the actions or omissions of DIA and HFS with respect to the Wall Days Inn are typical of its standard practices or procedures, that numerous other new Days Inn hotels are inaccessible to individuals with disabilities, and that DIA and HFS have engaged in a pattern or practice of illegal conduct in violation of title III of the ADA.

DIA and HFS do not deny that the Wall Days Inn is inaccessible to individuals with disabilities. DIA and HFS do not deny that at least 13 other new Days Inn hotels — two others in South Dakota, and 11 others in ten other states — have also been designed and constructed to be inaccessible to individuals with disabilities. Further, there is no dispute over what actions DIA

or HFS did or did not take with respect to the design and construction of the Wall Days Inn or other new Days Inn hotels. Thus, the only questions that remain in dispute are questions of law: whether, given the undisputed facts, DIA and HFS are liable under title III of the ADA for the design and construction of the Wall Days Inn and other inaccessible Days Inn hotels. Accordingly, the United States moves for summary judgment pursuant to Federal Rule of Civil Procedure 56,2 seeking both injunctive relief and the award of civil penalties against both DIA and HFS.


II. STATEMENT OF THE CASE
As set forth more fully in the United States’ Statement of Material Facts, the following facts are not disputed.
A. The Wall Days Inn is not accessible to or usable by individuals with disabilities.
As detailed in the report of the United States’ expert, Mr. William Hecker, the Wall Days Inn is not readily accessible to or usable by individuals with disabilities. See U.S. Facts ¶¶ 77-79.3 The hotel was designed and constructed4 with numerous violations of the ADA’s Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (“the Standards”), occurring in every area of the facility, from the parking lot, walkways, and entrances, to the lobby and other public and employee areas, to the guest rooms and guest bathrooms. Id. In general, the violations fall into three categories: (1) conditions that result in unequal treatment for individuals with disabilities; (2) conditions that make it difficult or impossible for individuals with disabilities to gain access to or use some area or feature of the hotel; and (3) conditions that present potential safety hazards for individuals with disabilities.

Perhaps the best example of a condition that results in unequal treatment for individuals with disabilities is the failure to provide accessible features in the hotel’s various types of guest rooms. As designed and constructed, the Wall Days Inn has two rooms designated for use by individuals with disabilities, each of which has only one bed. U.S. Facts ¶ 78.l. The hotel has several rooms with two beds, but none of the rooms with two beds have any accessibility features, and are not usable by individuals with disabilities who need an accessible room. Id.5

There are a multitude of conditions at the Wall Days Inn that make it difficult or impossible to gain access to or make use of some area or feature of the hotel. The most significant of these is undoubtedly the hotel’s failure to provide an elevator. The hotel has guest rooms on each of the first and second floors, and a basement level with a spa and sauna area, two restrooms, a laundry facility, and various electrical, mechanical, and storage spaces. U.S. Facts ¶ 77.a. The only means of access to either the upper floor of the hotel, or to any of the facilities in the basement, however, is by means of stairs; the hotel has no elevator. U.S. Facts ¶ 77.b. The Standards require multi-story facilities to provide at least one passenger elevator. Standards § 4.1.3(5).6

In addition to failing to provide an elevator, there are a number of other conditions at the Wall Days Inn that make it difficult or impossible to gain access to or make use of some area or feature of the hotel. For instance, the hotel fails to provide accessible parking spaces, and the ramp leading to the hotel’s front entrance does not have a level landing at the top, so that wheelchair users will tend to roll backwards, away from the door, when they release their wheels to grasp the door handle. U.S. Facts ¶¶ 77.a, c. Once inside, the hotel’s registration desk is too high to be used by someone who uses a wheelchair, U.S. Facts ¶ 78.f,7 and the signs identifying rooms and spaces within the hotel do not have Braille or raised letters, so that individuals who are blind or who have low vision will not be able to determine where they are. U.S. Facts ¶¶ 78.g, j. In the hotel’s guest rooms, the controls for the heating and air conditioning units require a degree of manual dexterity that many individuals with disabilities do not have, and the clothes rods and shelves are mounted too high to be reached by someone using a wheelchair,. U.S. Facts ¶¶ 78.n, o. As a result, many individuals with disabilities at the Wall Days Inn will be unable to turn on or off, or adjust, the heat or air conditioning, or to hang their clothes. Further, in the hotel’s guest rooms that are not the guest rooms specifically designed for individuals with disabilities, the doors to the bathrooms are too narrow to allow the passage of an individual using a wheelchair. U.S. Facts ¶ 78.k. Wheelchair users will thus not be able to gain access to the bathrooms in those rooms, which they might need to do if the accessible rooms are not available, or if they are visiting someone who is staying in one of the hotel’s non-accessible rooms.8

Finally, there are many conditions at the Wall Days Inn that present safety hazards for individuals with disabilities. For instance, because there are no curb ramps providing access to the walkway along the front of the hotel (and because that walkway can be blocked by parked cars overhanging the walkway), the only route for a wheelchair user to the hotel entrance from the parking spaces designated for use by individuals with disabilities is to enter the public street in front of the hotel, and travel along that street to the end of the parking area, and then turn in toward the entrance. U.S. Facts ¶ 78.b. The rear wall of the hotel presents a safety hazard to individuals who are blind, or who have low vision: heating and air conditioning units for the first floor guest rooms project out into the walkway that runs along the rear wall of the hotel, about head high. There are no barriers or warnings, however, to prevent individuals with vision impairments from walking into these units. U.S. Facts ¶ 78.e.

There are hazards inside the hotel as well. For instance, while the spa and sauna area and the restrooms in the hotel basement have emergency alarms, those alarms have only audible warnings; they have no visual signals, and will not alert a person who is deaf to an emergency. U.S. Facts ¶ 78.i. If that person is by himself or herself (for instance, alone in the sauna or restroom), that person may not be alerted by hotel staff or other guests. Finally, the hot water and drain pipes under the lavatories in the public restrooms are not insulated, or otherwise configured to prevent contact with the legs of wheelchair user. U.S. Facts ¶ 78.h. Given that many wheelchair users have no feeling in their legs, they would not know that they were being burned by those pipes.
B. In addition to the Wall Days Inn, several other newly constructed Days Inn hotels are inaccessible to individuals with disabilities.
In addition to the Wall Days Inn, several other newly constructed Days Inn hotels have been designed and constructed to be inaccessible to or unusable by individuals with disabilities. The United States’ expert, Mr. Hecker, has surveyed 13 other new Days Inns, and has found numerous violations of the Standards at each. U.S. Facts ¶¶ 80-84. As with the Wall Days Inn, the violations occur in all parts of the facility, and can be grouped into the same three categories. For instance, new Days Inn hotels in Willows, California, Hazard, Kentucky, and Champaign, Illinois, all have rooms with two beds, or larger rooms with additional amenities, but at each of these hotels, the accessible guest rooms have only one bed and none of the other amenities. U.S. Facts ¶¶ 81.o, 82.i, 83.e.

Similarly, both the Willows and Hazard Days Inns have too few accessible parking spaces, or parking spaces designated for use by individuals that do not comply with the requirements of the Standards. U.S. Facts ¶¶ 81.a, b, 82.a. The Willows Days Inn has a swimming pool which cannot be reached by someone who uses a wheelchair, due to a lack of curb ramps. U.S. Facts ¶ 81.d. Each of the three hotels has a registration counter that is too high. U.S. Facts ¶¶ 81.g, 82.e, 83.a. Each has controls for lamps and heating and air conditioning units in their guest rooms that require a high level of manual dexterity, so that many guests with disabilities will not be able to turn on or off the lights, or turn on or off the heating or air conditioning. U.S. Facts ¶¶ 81.n, 82.k, 83.h. Finally, the bathroom doors to the non-accessible guest rooms at all three hotels fail to provide adequate clear width. U.S. Facts ¶¶ 81.k, 82.j, 83.g.

With respect to safety hazards, the Willows Days Inn has only one curb ramp providing access from the walkway surrounding the hotel to the parking lot. U.S. Facts ¶ 81.c. That ramp is in front of the hotel lobby; if there is a fire in or near the lobby, wheelchair users may not be able to use that ramp, and may not be able to leave the building safely. Id. In addition, both the Hazard and Willows hotels fail to provide barriers or other warnings to prevent people who are blind or have low vision from walking into the undersides of exterior stairs, or into objects protruding into the hotel’s walkways. U.S. Facts ¶¶ 81.f, 82.c, d. All three hotels have emergency alarm systems that fail to provide visual alarms in the hotel lobbies, lobby restrooms, or guest rooms, U.S. Facts ¶¶ 81.e, h, l, 82.g, 83.c, f, and all three hotels have lavatories with hot water and drain pipes that are not insulated or otherwise configured to protect against contact. U.S. Facts ¶¶ 81.i, 82.f, 83.b.

Further evidence of the typicality of the ADA violations at the Wall Days Inn comes from the United States’ inspections of ten other newly constructed Days Inn hotels, including Days Inn hotels in Sturgis and Watertown, South Dakota. At each of those hotels, the United States’ expert found violations of the Standards throughout the facility, of the same types as the violations found at the Willows, Wall, Hazard, and Champaign hotels. U.S. Facts ¶ 84. The findings of the United States’ expert with respect to ADA violations at the Wall Days Inn and the other newly constructed Days Inn hotels are undisputed. U.S. Facts ¶ 79.


C. DIA and HFS were extensively involved in, and had extensive control over, the design and construction of the Wall Days Inn.
As the undisputed facts show, DIA and HFS had both a high degree of control or authority over the design and construction of the Wall Days Inn, and extensive involvement in the project itself.9 The license agreement covering the Wall Days Inn contains several terms governing the design and construction of the hotel, and reserves to DIA considerable control over the project. For instance, the license agreement sets dates by which construction must begin and be completed, and requires the licensees, Richard and Karla Hauk, to prepare architectural plans for the hotel that conform to the Days Inn design standards. U.S. Facts ¶¶ 29.a, b. The agreement requires the Hauks to submit their plans to DIA for DIA’s review and approval before beginning construction. U.S. Facts ¶ 29.c. The agreement requires the Hauks to construct the hotel in accord with the plans approved by DIA, and to secure DIA’s written approval of any changes to those plans. U.S. Facts ¶ 29.d. The agreement further provides that, upon DIA’s request, the Hauks must provide copies of their building permits to DIA and reports on the progress of construction, and that DIA has the right to inspect the construction during the course of the project. U.S. Facts ¶ 29.f. Once construction is completed, the agreement forbids the Hauks to open and operate the hotel until after DIA certifies in writing that the hotel complies with DIA’s design standards, and is acceptable to DIA. U.S. Facts ¶ 29.g.

In addition to the control over the project that DIA reserved to itself in the Wall license agreement, the undisputed facts show that DIA involved itself in the project in a variety of other ways as well. In late 1992, Andy Anderson, a DIA franchise sales representative, approached Mr. Hauk in Wall. U.S. Facts ¶¶ 44, 45. The Hauks had acquired a vacant piece of property in Wall, and were trying to decide what to do with it. U.S. Facts ¶ 45. Before talking with Anderson, the Hauks had not seriously considered building a new hotel. Id. The Hauks met with Anderson in Aberdeen, South Dakota, where Anderson introduced them to David Baumann, an architect who had prepared plans for two other Days Inn hotels, one in West Fargo, North Dakota, and one in Oacoma, South Dakota. U.S. Facts ¶¶ 46, 47. Before meeting with the Hauks in Aberdeen, Baumann, who knew Anderson from his involvement in the West Fargo Days Inn project, discussed the possibility of becoming involved in the Wall project with Anderson. U.S. Facts ¶¶ 47-48. Based on Anderson’s recommendation of Baumann, and Baumann’s previous experience designing Days Inn hotels, the Hauks hired Baumann to prepare plans for the Wall Days Inn. U.S. Facts ¶¶ 50-53.

Anderson also referred the Hauks to a builder for the project, Double H Enterprises, Inc. U.S. Facts ¶ 54. At the time, Double H was in the process of building the Oacoma Days Inn, one of four other Days Inn hotels, including West Fargo, that Double H had constructed. U.S. Facts ¶¶ 54-55. Anderson had an established relationship with Charles Hayes, the principal of Double H. They had had several prior business dealings (including joint ownership of a hotel in Nebraska), and Anderson had introduced Hayes to the owners of the Oacoma project. U.S. Facts ¶ 56-57. According to Hayes, the two were “fairly good friends.” U.S. Facts ¶ 57. Before talking to the Hauks about the Wall Days Inn, Hayes spoke with Anderson two or three times about the possibility of becoming involved in the project. U.S. Facts ¶ 58. Shortly after the Hauks met with Anderson and Baumann in Aberdeen, they went to Oacoma, and met Hayes at the Days Inn construction site. U.S. Facts ¶ 59. The Hauks subsequently accepted a proposal from Hayes for work on the wall Days Inn. U.S. Facts ¶ 60.

In addition to providing an architect and contractor for the project, DIA involved itself in the Wall project in other ways. Very early on, in October 1992, the DIA Design and Construction Department prepared and sent to Mr. Hauk a conceptual site plan for his lot in Wall, showing how the hotel might fit on the site, and how many rooms it might contain. U.S. Facts ¶ 61. Although the site plan was not actually used in the final design of the project, Mr. Hauk did rely on it to decide that a hotel with enough rooms to be financially feasible could fit on the site. U.S. Facts ¶ 61.a. DIA also prepared a projection of revenues and expenses for the new hotel, which projection the Hauks’ lender relied upon in seeking a guaranty of the construction financing from the Small Business Administration. U.S. Facts ¶ 62.



In the course of preparing plans for the Wall Days Inn, Baumann frequently referred to the Days Inn Planning and Design Standards Manual. He had gotten a copy from Anderson, had been through it in detail, and highlighted various requirements. U.S. Facts ¶ 49, 63. Baumann referred to the PDSM for “all kinds of standards,” including guest room sizes and layouts, bathroom sizes and layouts, door sizes, corridors, exit doors, and other items. U.S. Facts ¶ 64. In addition, in preparing the Wall plans, Baumann used several detail drawings that he had previously used in the West Fargo and Oacoma Days Inns; and while he did not know whether those drawings had been reviewed by DIA, he did know that those hotels had been completed and opened for business as Days Inn hotels. U.S. Facts ¶¶ 65-66. Baumann hired an engineering firm in Fargo to prepare mechanical and electrical drawings for the hotel, and provided them with the sections of the PDSM relating to electrical and mechanical requirements. U.S. Facts ¶¶ 67-68. The engineering firm also incorporated Days Inn requirements into the plans it prepared. U.S. Facts ¶ 69. Hayes also had a copy of the PDSM, which he used to determine what furniture, fixtures, and equipment were required. U.S. Facts ¶ 70-71.

Baumann sent a set of preliminary plans for the Wall Days Inn — four sheets of architectural drawings — to Mark Zelazny, an architect in the DIA Design and Construction Department, for DIA’s review and approval. U.S. Facts ¶ 72. Zelazny reviewed and commented upon the plans, and returned a marked up set of plans to Baumann. U.S. Facts ¶ 73. Zelazny noted several items on the plans, some of which were required by the Days Inn design standards, and some of which were not. U.S. Facts ¶ 74. Among those items not covered by the PDSM were items reflecting current industry standards, safety items, and various items relating to accessibility for individuals with disabilities, including showing the location of a curb ramp near the hotel’s front entrance, and showing the necessity for providing adequate turning space in the bathrooms in the accessible guest rooms. U.S. Facts ¶ 74.b, c, d.

Once construction began, Anderson visited the site twice. The first visit was quite brief, but the second visit lasted longer, and included a conversation with Richard Hauk. U.S. Facts ¶ 75. DIA’s Property Openings department monitored the progress of the construction, making multiple phone calls to the Hauks. U.S. Facts ¶ 76. As the hotel neared completion, DIA’s contact became more frequent. Id. Since the completion of the hotel, DIA has inspected the facility several times. The first visit was made by the DIA representative who came to the property to install the hotel’s computer reservations terminal, and provide training to the hotel’s management and staff. That visit occurred in late June, 1993, just as construction was being completed, and included a tour of the property. U.S. Facts ¶ 111.c.i. Since that time, DIA has inspected the property at least three times a year as part of its Quality Assurance program. U.S. Facts ¶¶ 93, 100. Among other things, the Quality Assurance (QA) inspections check for compliance with the Days Inn design standards. U.S. Facts ¶ 92.

D. DIA's involvement in and control over the design and construction of the Wall Days Inn is typical of its involvement in and control over the design and construction of all new Days Inn hotels.

DIA’s involvement in, and control over, the design and construction of the Wall Days Inn are by no means unique to the Wall hotel. To the contrary, the undisputed facts show that DIA has the same level of control over the design and construction of all new Days Inn hotels, and the same kind of control over and involvement in the design and construction of other new hotels.

Initially, the Wall license agreement is typical of all license agreements. U.S. Facts ¶ 28. Indeed, DIA uses a standard form of agreement for all of its licensees. U.S. Facts ¶¶ 20, 21. And while DIA will alter some specific provisions of the standard agreement in some cases, many are not negotiable. U.S. Facts ¶ 22. These include the provisions that require the licensee to prepare plans and specifications for the hotel that comply with DIA’s design standards. U.S. Facts ¶ 22, 27. In addition, in order to protect its own interests, DIA includes in all of its agreements the provisions which fix the number of guest rooms for the hotel, and which set dates by which the construction of the unit must begin and be completed. U.S. Facts ¶¶ 27.e, f.

The Days Inn Planning and Design Standards Manual is one of the Days Inn System Standards manuals, which licensees must comply with both when preparing the plans for their hotels, and continuously thereafter. U.S. Facts ¶¶ 18, 19, 23, 24, 30. The PDSM was originally developed by DIA’s predecessor in interest, Days Inns of America Franchising, Inc. (DIAF), as part of DIAF’s own construction projects, and then passed on to DIAF’s franchisees. U.S. Facts ¶ 31. When HFS acquired the Days Inn chain from DIAF, and created its wholly-owned subsidiary DIA, the DIAF PDSM was re-issued with DIA’s name and address. U.S. Facts ¶ 31.a.

The PDSM sets detailed requirements for new hotels. DIA’s expert, Mr. Kiewel, described it as “comprehensive,” and Mr. Baumann, the architect who prepared plans for the Wall Days Inn described it as “a very complete manual.” U.S. Facts ¶¶ 32.a, c. Mr. Zelazny, the DIA architect who reviewed the plans for the Wall Days Inn confirmed that the PDSM imposed hundreds of requirements, covering all aspects of the hotel’s design and construction. U.S. Facts ¶¶ 32.b, 33. In addition, the PDSM includes dozens of drawings and sketches, showing guest room and guest room bathroom layouts, and drawings of previously constructed Days Inn hotels. U.S. Facts ¶ 34. While licensees are not required to use the drawings of prior Days Inn hotels, the PDSM “encourages” licensees to use these “examples of recent Licensee and DIA designed and built models.” U.S.v Facts ¶ 34.b.

In addition to the control over the design and construction of new Days Inn hotels evidenced by the license agreement and PDSM, DIA is involved in the design and construction of new Days Inn hotels in a variety of other ways. For instance, DIA visits the sites of proposed new hotels, and evaluates those sites according to several factors. U.S. Facts ¶ 42.a. As it did in Wall, DIA frequently assists licensees in the early stages of design by providing conceptual site plans or architectural renderings, drawings which can be used for a variety of purposes, such as determining the feasibility of a particular project on a particular site, or obtaining zoning permits or waivers from local building officials. U.S. Facts ¶¶ 42.b, c, d. As Mr. Keeble put it, conceptual site plans can help licensees “get an idea of what they want to build.” U.S. Facts ¶ 42.c.i.10 Those drawings can also be used to show to a prospective lender, in support of an application for construction financing. U.S. Facts ¶ 42.c. DIA also refers licensees to lenders or architects who have expressed an interest in new Days Inn hotel projects. U.S. Facts ¶ 42.e.

As it did for the Wall Days Inn, the DIA Design and Construction Department reviews plans for new Days Inn hotels. While these reviews are intended primarily to check for compliance with Days Inn system standards, they frequently include issues of building code compliance, recent trends in the industry, and accessibility for people with disabilities. U.S. Facts ¶ 41. DIA also monitors the progress of construction for new Days Inn hotels; in lieu of sending inspectors to construction sites, DIA would send cameras to licensees, for them to take pictures of their projects to send to DIA. U.S. Facts ¶ 43. Finally, just as it did in Wall, a DIA representative visits every new hotel at or near the completion of construction, to install reservations equipment, train hotel staff, and tour or inspect the property. U.S. Facts ¶¶ 111.c.

In addition to this initial visit, the DIA Quality Assurance department inspects every Days Inn property at least three times per year, inspections that include compliance with Days Inn’s design standards. U.S. Facts ¶¶ 92, 93.




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