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


III. THE ADA'S REQUIREMENTS FOR NEW CONSTRUCTION



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III. THE ADA'S REQUIREMENTS FOR NEW CONSTRUCTION

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., is Congress' most comprehensive civil rights legislation since the Civil Rights Act of 1964. Its chief purpose is to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). To that end, Congress acted to “invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4). The ADA's coverage is accordingly broad: it prohibits discrimination on the basis of disability in employment, State and local government programs and services, transportation systems, telecommunications, and the provision of goods and services offered to the public by private businesses.

Nowhere is the breadth of the ADA more evident than in section 303 of the statute. Congress specifically found that architectural barriers constituted one of the types of discrimination "continually encounter[ed]" by individuals with disabilities. 42 U.S.C. § 12101(a)(5). To redress this form of discrimination, Congress mandated that all commercial facilities and public accommodations completed after January 26, 1993, be "readily accessible to and usable by" individuals with disabilities. 42 U.S.C. § 12183(a). Congress intended strict adherence to the new construction requirements. As the legislative history makes clear,

[t]he ADA is geared to the future — the goal being that, over time, access will be the rule rather than the exception. Thus, the bill only requires modest expenditures to provide access in existing facilities,11 while requiring all new construction to be accessible.

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63 (1990) (emphasis added).

To realize its goal of a fully accessible future, Congress required that all newly constructed facilities be designed and constructed according to architectural standards to be set by the Attorney General. 42 U.S.C. §§ 12183(a), 12186(b). Those standards are incorporated into the Department of Justice's regulation implementing title III of the ADA, 28 C.F.R. Part 36, and are known as the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). The Standards set a variety of requirements for newly constructed hotels, requirements which apply to all areas of the facility, from parking and exterior walkways to entrances to lobbies to interior stairs and corridors, and all guest rooms.

IV. ARGUMENT
A. By participating in the design and construction of hotels that are inaccessible to or unusable by individuals with disabilities, DIA has violated section 303 of the ADA.
As detailed above, DIA does not dispute that the Wall Days Inn and numerous other new Days Inn hotels are not readily accessible to and usable by individuals with disabilities. The undisputed facts further show that DIA was extensively involved in the design and construction of those hotels. Accordingly, DIA is liable under section 303 of the ADA.

Section 303 provides that


as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) of this title includes
(1) a failure to design and construct facilities for first occupancy later than [January 26, 1993], that are readily accessible to and usable by individuals with disabilities . . . .
42 U.S.C. § 12183(a)(1). Section 303 defines a discriminatory activity — the design and construction of inaccessible facilities — and makes it illegal to engage in that activity. It is thus one part of Congress’ “clear and comprehensive national mandate” for the elimination of discrimination against individuals with disabilities: any party who engages in, or is involved in, the design and construction of an inaccessible facility engages in or is involved in an illegal activity, and violates section 303 of the ADA.

Liability under section 303 depends on the facts of each case. In particular, liability under section 303 depends upon three factual inquiries: 1) whether the party in question participated in the design and construction of the facility in question; 2) whether the facility is readily accessible to and usable by individuals with disabilities; and 3) whether the party’s participation in the design and construction of the facility included participation in the design and construction of some portion of the facility that fails to comply with the ADA’s Standards for Accessible Design. Put differently, the scope of a party’s responsibility under section 303 is commensurate with the scope of that party’s involvement in the design and construction of the facility. Thus, the architect for a facility would be responsible for any violations of the Standards occurring within the scope of his or her work, while a plumbing subcontractor would be responsible for violations occurring within the scope of its involvement in the project (for instance, violations in the facility’s toilet rooms). By the same token, however, the plumbing subcontractor would not be responsible for violations of the Standards occurring in the facility’s parking lot (but the paving subcontractor might be), and a roofing subcontractor would rarely if ever have any ADA liability, because the Standards impose no accessibility requirements for a facility’s roof.

As outlined above, the undisputed facts of this case show that there are numerous violations of the Standards both at the Wall Days Inn and several other new Days Inns, and that DIA has participated extensively in the design and construction of those hotels. As it does with other hotels in its chain, DIA’s involvement with the design and construction of the Wall Days Inn began early, and extended to every aspect of the project. The DIA Design and Construction Department provided a conceptual site plan for the project, which Mr. Hauk used to decide that the project was feasible. DIA assisted with the construction financing, and the DIA franchise salesman recommended an architect and builder for the hotel, both of whom had been involved in previous Days Inn projects. The architect, engineer and builder all had and referred to the PDSM. Through the license agreement with the Hauks DIA set dates for the beginning and completion of construction, required the Hauks to prepare plans for the hotel that conformed to the Days Inn Planning and Design Standards Manual, and required the Hauks to obtain DIA’s approval of their plans for the hotel, which they did. DIA monitored the progress of the construction (especially as it neared completion), and inspected the hotel upon its completion.12


The PDSM itself represents significant involvement by DIA in the design of the Wall and other new Days Inn hotels: as DIA’s expert architect put it, the PDSM is “comprehensive.” U.S. Facts ¶ 32.a. It sets forth hundreds of design requirements for all areas of new Days Inn hotels, and includes sketches showing the design or layout of guest rooms and guest bathrooms. U.S. Facts ¶¶ 32.b, 33, 34. The PDSM addresses or sets requirements for all of the areas of the Wall Days Inn in which violations of the Standards occurred. Similarly, the license agreement with the Hauks (which is typical of agreements with other Days Inn licensees) requires them to submit architectural drawings and specifications for the hotel. Because the scope of DIA’s control over and involvement in the design and construction of the Wall Days Inn extended to every aspect of the hotel, the scope of its liability for ADA violations at the Wall Days Inn is quite broad: along with the owner, architect, and builder (each of whom were also involved in the design and construction of all aspects of the facility), DIA is responsible for all of the violations of the Standards at the Wall Days Inn.
B. The parties responsible for complying with section 303 of the ADA are not limited to the parties covered by section 302 of the ADA.

Title III of the ADA does not only set architectural requirements for the design and construction of new facilities. It also prohibits a variety of forms of discrimination in the day-to-day operation of certain businesses. That is, in addition to the requirements for new construction set out in section 303, section 302 of the Act includes a general prohibition of discrimination against individuals with disabilities, and imposes on public accommodations, but not on commercial facilities, various other non-discrimination obligations with respect to their day-to-day operations. See 42 U.S.C. § 12182(a) and (b).13


1. The scope of section 303 is broader than the scope of section 302, in that section 303 applies to facilities not covered by section 302.
Unlike section 302, which applies only to public accommodations, section 303 applies to two categories of facilities: "public accommodations" and "commercial facilities." 42 U.S.C. § 12183(a). The statute defines "public accommodations" as 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. § 12181(7). This is a broad definition that includes, for example, hotels, bars, restaurants, stadiums, theaters, shopping malls, doctors’ and lawyers’ offices, museums, zoos, and many other facilities that provide goods or services.

As broadly defined as it is, the category of “public accommodations” is not as broad as the category of “commercial facilities.” That term is defined as all facilities intended for non-residential use whose operations affect commerce. See 42 U.S.C. § 12181(2).14 While this definition includes many facilities that are also public accommodations,15 it includes a broad range of facilities that are not public accommodations, such as factories, warehouses, many office buildings, and other buildings in which employment may occur. Congress chose this expansive coverage of commercial facilities deliberately. The lawmakers recognized that while employees at commercial facilities would have the protections of the provisions of title I of the ADA, 42 U.S.C. §§ 12111 through 12117 (governing private employers, and requiring them to make reasonable accommodations for employees with disabilities), it nonetheless made sense to impose a blanket requirement for architectural accessibility on facilities that were potential places of employment, but were not places of public accommodation. As the House Committee on Education and Labor pointed out,

[t]o the extent that new facilities are built in a manner that make(s)them accessible to all individuals, including potential employees, there will be less of a need for individual employers to engage in reasonable accommodation to particular employees.

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. 117 (1990).

Because the scope of section 303’s coverage is broader than the scope of coverage of section 302, it would do violence to the statutory scheme to read the reference to section 302(a) in section 303 to mean that only those who have obligations under 302 — the owners, lessors, lessees and operators of public accommodations — can be held liable for new construction violations under section 303. Under such a reading, the only people who could be held liable for design and construction violations of commercial facilities would be those who own, lease, or operate public accommodations. For strictly commercial facilities — many office buildings, for instance, do not contain places of public accommodation — there is no party who would meet this definition and, therefore, no party to be held accountable for ADA violations. Such a result cannot be harmonized with the language in section 303 that explicitly includes "commercial facilities" within the scope of the new construction requirements, or with Congress’ desire to insure that all new commercial facilities would be covered. As the report of the House Committee on Education and Labor explains:

In many situations, the new construction will be covered as a "public accommodation," because in many situations it will already be known for what business the facility will be used. The Act also includes, however, the phrase "commercial facilities," to ensure that all newly constructed commercial facilities will be constructed in an accessible manner. That is, the use of the term "commercial facilities" is designed to cover those structures that are not included within the specific definition of "public accommodation."

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. 116 (1990) (emphasis in original).

A House Judiciary Committee amendment moving the requirement for accessible alterations from section 302 to section 303 provides further evidence that Congress intended section 303 to have a scope of coverage beyond that of section 302. As the Committee Report explains:

[t]he Committee adopted an amendment to move the section governing alterations for existing facilities from Section 302(b)(2)(vi), which only covered public accommodations, to Section 303 which covers both public accommodations and commercial facilities.

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63.16 The Committee clearly understood that section 303 covered a wider universe than section 302 and wanted to ensure that the requirements for alterations, like those for new construction, applied to the many office buildings, factories, warehouses, and other potential places of employment that are not public accommodations. As the Committee noted,

if alterations were not included in Section 303, governing commercial facilities, the anomalous situation could arise of a new accessible building being renovated to include barriers to access.


Id.

In sum, there can be little question that Congress deliberately chose to draft sections 302 and 303 differently, and intended them to apply to different kinds of activities, different categories of facilities, and different parties. Thus, the most sensible reading of section 303's reference to section 302(a) is that section 303 refers to section 302(a) only to indicate that the failure to design and construct accessible facilities constitutes another type of "discrimination on the basis of disability," and not to identify the parties that may be held liable under section 303. This interpretation gives full effect to all of the terms of the provision. See Moskal v. United States, 498 U.S. 103, 109-10 (1990) (courts should interpret statutes in a manner that gives effect to every clause and word of the statute) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955) (same)).17

2. The use of the term “design” in section 303 makes clear that section 303 is intended to apply to parties not covered by section 302.

By including the term “design” in section 303, Congress made clear that section 303 is not to be limited only to parties who own, operate, or lease the facility in question. If only those parties were to be covered, then entities that design new facilities, but typically do not own, operate, or lease them — including architects, engineers, and other design professionals — would be excluded from the scope of section 303’s coverage. A general exclusion of design professionals, however, cannot be squared with the inclusion of the term "design" in the text of the statute. Congress could have written this paragraph without using the word "design," addressing itself only to the end result by making it illegal only to "construct" inaccessible facilities. By including the design function in the description of the prohibited conduct, however, Congress deliberately brought within the Act's coverage not just those parties who are ultimately responsible for the construction of a new facility, but also those entities who design new facilities — architects, engineers, interior designers, and all other parties who design facilities. Limiting section 303 to those parties covered by section 302 would thus nullify a large portion of the coverage marked out by Congress. As we argue in the next section, so circumscribing the coverage of section 303 would significantly limit the ability of section 303 to achieve its

purpose.


3. Limiting the coverage of section 303 to the parties identified in section 302 would result in the design and construction of numerous inaccessible new facilities, frustrating Congress' purpose in adopting the ADA.

Under well-established canons of statutory construction, in addition to examining the text of the statute the Court must also look to its remedial purposes, and construe the statute in a way that will allow it to achieve those purposes.18 Limiting the coverage of section 303 to the parties identified in section 302 would greatly limit the ability of section 303 to achieve Congress' stated purpose of ensuring that all new facilities are designed and constructed to be accessible, and result instead in a great many more inaccessible buildings.

To be fully effective, the ADA's new construction obligation must apply not only to the parties who own, operate, or lease the facility in question, but to all of the parties involved in the design and construction of the facility. If all parties who engage in the illegal activity — the design and construction of inaccessible buildings — are held liable for doing so, the level of compliance with the statute will be considerably higher than it would be if only some of those parties are responsible. For instance, if only those who own, operate, or lease facilities have any responsibility under section 303, an owner who decides to erect a building that is not accessible to individuals with disabilities, and asks an architect to design it without regard to the ADA's architectural requirements, and a contractor to build it that way, is quite likely to find an architect and contractor who will do as he asks. Neither the architect nor the contractor would have any reason to refuse: they would have no liability under the ADA to any person with a disability, and no liability to the owner, because they were following the owner's express instructions. As a result, it is much more likely that the facility will be designed and built inaccessibly — and will only be made accessible if a lawsuit is filed to compel compliance. Such a result is clearly not what Congress intended: the legislative history makes clear that Congress recognized that it is far easier and less expensive to incorporate accessible features into a building from the beginning than to go back later and retrofit the facility after construction is complete.19 And Congress certainly did not wish to create a scheme under which compliance will be achieved only as a result of costly litigation. Such a scheme would burden not just individuals with disabilities and the courts, but the rest of our society as well, when construction of a facility is halted, or a completed facility is shut down, for the purpose of undertaking remedial work to bring it up to ADA standards.

The intent of the statute cannot be fully realized unless it is read the way Congress drafted it: section 303 simply identifies a prohibited activity, and does not specify, either to include or exclude, what parties may be liable for engaging in that activity. Thus, if an owner wishes to build a facility that is inaccessible, any architect will (or should) refuse, because that architect can be held liable for violating section 303. And even if the owner can find an architect who will design it, any contractor will (or should) refuse to build it, because the contractor can be held liable under section 303. It thus becomes significantly more difficult to have a building designed and constructed to be inaccessible to individuals with disabilities, and the statute is far more likely to achieve the goals set by Congress.

Indeed, this is precisely the way Congress has approached other problems of discrimination in other civil rights statutes. While the language varies from statute to statute, the basic approach has been the same. Congress has not placed responsibility only on some of the parties engaged in the activity in question; rather, Congress has consistently cast the net more broadly, to prohibit discriminatory conduct by all parties involved. Put differently, it is axiomatic in our civil rights law that it is not permissible for one party to act in a discriminatory fashion because another party somewhere down the line may be held liable for that discrimination. The most analogous example of this approach is that set forth in the Fair Housing Act, which simply makes illegal various discriminatory activities, without limiting the parties who may be held responsible for engaging in that activity. See Robert G. Schwemm, Housing Discrimination Law and Litigation § 12.3(1) at 12-22 (1990 and Supp. 1995) (Fair Housing Act provisions “simply declare certain housing practices to be unlawful without specifying who may be held responsible for these practices. Thus, anyone who commits one of the acts proscribed by the statute’s substantive provisions is liable to suit,” unless specifically exempted).

Significantly, section 303 of the ADA mirrors a provision contained in section 804 of the Fair Housing Act, a provision which also simply identifies an illegal activity — the design and construction of inaccessible housing facilities — and does not specify or limit the parties that may be held liable under that section.20 In modeling section 303 of the ADA on section 804(f)(3)(C) of the Fair Housing Act, Congress clearly chose to approach the design and construction of inaccessible public accommodations and commercial facilities in the same way that it had approached the design and construction of inaccessible housing facilities: it has simply specified an illegal activity — the design and construction of inaccessible facilities — and has not qualified that prohibition to allow some parties, but not others, to engage in that activity. Indeed, given that Congress specifically “invoked the sweep of its authority” when it enacted the ADA, to establish a “clear and comprehensive national mandate” for the elimination of discrimination against individuals with disabilities, it would only be surprising if Congress had chosen not to draft section 303 so broadly, but only to require some limited class of parties to fulfill its goal of

a fully accessible future.


4. Although two other federal district courts have addressed the scope of section 303’s coverage, they have come to conflicting conclusions.
Two federal district courts have considered the question of the scope of section 303’s coverage, and have come to conflicting conclusions. The first case to address this issue was Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F. Supp. 1 (D.D.C. 1996), in which the Court dismissed claims against the architectural firm that designed an arena alleged to be inaccessible, on the grounds that section 303's reference to section 302 limits the parties responsible for complying with section 303 to those who own, lease, or operate the facility. The PVA opinion, however, is not persuasive. Its central flaw is that it does not explain why section 303, which plainly applies to public accommodations and commercial facilities, should be limited to parties who own, lease, or operate public accommodations. The opinion does not even acknowledge this discrepancy, much less try to account for it. Rather, the court states only that "the limitation in § 302 to owners, operators, and lessors also applies to § 303 and thereby excludes architects . . . ." Id. at 2. But because section 302 applies only to owners, operators, and lessors of public accommodations and not to commercial facilities at all, this analysis, as discussed above, leads to the patently incorrect result of eliminating from section 303 any meaningful coverage of commercial facilities.

In addition, the PVA court erred when it assumed, without explanation, that the aims of the statute could effectively be achieved even if only the owners of new facilities were responsible for ADA compliance. Id. As discussed above, however, limiting the scope of section 303 to owner, operators, lessors and lessees would mean that the aims of section 303 would only be achieved as a result of a multitude of legal actions to compel retrofitting of facilities designed and constructed to be inaccessible, a prospect Congress specifically wished to avoid.

More persuasive is the ruling of the court in Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175 (S.D. Fla. 1997), another title III action alleging that a new arena was being designed to be inaccessible to individuals with disabilities. Again, the architects were named as defendants, and moved to dismiss the claims against them on grounds that they did not own, operate, or lease the facility. The Johanson court recognized that if the reading advanced by the architects in that case were correct, coverage of commercial facilities would effectively be eliminated from section 303. Under such a reading, the court noted, “it is conceivable that no entity would be liable for construction of a new commercial facility which violates the ADA." Id. at 1178. Accordingly, the Johanson court denied the architects’ motion to dismiss.




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