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



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IV. CONCLUSION
For the reasons stated above, the United States respectfully requests that the Court enter judgment in its favor, and grant the relief requested in its Complaint.
Respectfully submitted,
ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Acting Deputy Chief

Disability Rights Section

Civil Rights Division

___________________________

THOMAS M. CONTOIS

MARGARITA M. PRIETO

JEANINE M. WORDEN

ROBERTA STINAR KIRKENDALL

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

(202) 514-0196
DIANA RYAN

Assistant U.S. Attorney

226 Federal Building

515 Ninth Street

Rapid City, South Dakota 57701

Dated: August 28, 1997



1 The United States entered into a consent decree with the owners, architect, and builder of the Wall Days Inn, and those defendants are no longer parties to this action. The Court approved the consent decree on June 5, 1997.

2 A court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). See also Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1251 (8th Cir. 1997) (“Summary judgment is proper only if the evidence taken in the light most favorable to the nonmoving party fails to create a genuine issue of material fact and one party is entitled to judgment as a matter of law.”); Reliance Ins. Co. v. Shenandoah South, Inc., 81 F.3d 789, 791 (8th Cir. 1996)(same).


3 Citations to "U.S. Facts" refer to the United States' Statement of Material Facts filed with this memorandum. All references to Exhibits (in the form “Ex. __”) are references to exhibits provided with the United States’ Statement of Material Facts.

4 There is no dispute that the hotel qualifies as new construction under title III of the ADA, or that it is subject to the requirements of section 303. The Wall Days Inn is a place of lodging with five or more rooms; the last application for a building permit for the facility occurred after January 26, 1993, and the facility was first occupied after January 26, 1993. U.S. Facts ¶¶ 7-9. See 28 C.F.R. § 36.401.

5 The ADA’s Standards for Accessible Design require that, “in order to provide persons with disabilities a range of options equivalent to those available to other persons served by the facility, [a hotel’s accessible] sleeping rooms and suites . . . shall be dispersed among the various classes of sleeping accommodations available” at the hotel. Standards § 9.1.4. The Days Inn Planning and Design Standards Manual (PDSM) calls for all accessible rooms to have only one bed. PDSM, Ex. 4, § 10.04.B, at 107-08.

6 With certain exceptions, two-story facilities are exempted from this requirement. Standards § 4.1.3(5). Thus, the Wall Days Inn is required to have an elevator because it has three stories. See U.S. Facts ¶ 77.a.

7 The registration desk at the Wall Days Inn is 43 1/4 inches high. U.S. Facts ¶ 78.f. A drawing of the registration desk in the PDSM shows the desk with a height of 46 inches. PDSM, Ex. 4, Appendix B, Section A, at 147. The Standards require that at least a portion of the registration desk be no more than 36 inches high. Standards § 7.2(2).


8 The PDSM calls for the doors to standard guest room bathrooms to be 28 inches wide (2 feet, 4 inches). PDSM, Ex. 4, § 5.02.E.1 at 39. The Standards require that doors into and within all guest rooms provide a clear opening width of at least 32 inches. Standards § 9.4. It is physically impossible, of course, for a 28 inch door to provide a 32 inch opening. See Deposition of Harold Dean Kiewel (Kiewel Dep.), Ex. 20, at 81-83.

9 Because they are so closely related, DIA and HFS will be referred to collectively as “DIA,” unless the context requires otherwise. In addition to being a wholly owned subsidiary of HFS, DIA and HFS have the same address and share office space, and file consolidated annual reports and financial statements. U.S. Facts ¶¶ 117-18. Moreover, DIA has no employees; all DIA functions are carried out by HFS employees. U.S. Facts ¶ 119.

10 DIA and HFS designated Mr. William Keeble, Senior Vice President of Operations for the Hospitality Division of HFS, to testify on their behalf, pursuant to Fed. R. Civ. P. 30(b)(6). Keeble Dep., Ex. 19, at 10-12.

11 See section 302(b)(2)(A)(iv) of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iv), requiring removal of architectural barriers to access in facilities built before the passage of the ADA only to the extent that removing such barriers is “readily achievable.” “Readily achievable” is defined to mean “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9) (and setting forth factors to consider in determining whether it is readily achievable to remove barriers in a particular case).


12 As the discussion in Part II.D., above, indicates, these kinds of involvement in the design and construction of new Days Inn hotels were not unique to the Wall Days Inn, but rather were typical of DIA’s involvement in the design and construction of all new Days Inn hotels.

13 Title III's general mandate prohibiting discrimination against individuals with disabilities in public accommodations is set out in section 302(a) of the Act, which provides that
[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 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. § 12182(a). Section 302(b) then construes section 302(a), defining discrimination on the basis of disability to include various acts or omissions. For instance, 302(b) generally makes it unlawful for public accommodations to deny individuals with disabilities opportunities to participate in and benefit from their services on a basis equal to that offered to other individuals. See 42 U.S.C. § 12182(b)(1)(A)(ii). Section 302(b) also prohibits several specific forms of discrimination, including, for instance, failing to provide auxiliary aids or services — such as assistive listening devices, sign language interpreters, documents in Braille, and so on — and failing to remove architectural barriers to access, when doing either is necessary to ensure that individuals with disabilities are not excluded from or denied services by a public accommodation. See 42 U.S.C. § 12182(b)(2)(A).


14 Excepted from the definition of commercial facilities are aircraft, certain railroad facilities and equipment, and certain facilities covered or exempted from coverage under the Fair Housing Act. 42 U.S.C. § 12181(2).

15 The Wall Days Inn, for instance, is a non-residential facility whose operations affect commerce, and thus is a "commercial facility." In addition, the hotel is a "public accommodation," as it falls within one of the statute's categories of public accommodation: it is "an inn, hotel, motel, or other place of lodging," within the meaning of section 301(7)(A). See 42 U.S.C. §§ 12181(7)(A).

16 The section in question became section 303(a)(2), which defines illegal discrimination to include a failure, when altering a facility or portion of a facility, to make those alterations in a manner that the altered portions of the facility are readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(2).

17 Moreover, limiting section 303 coverage to those parties identified in section 302 makes no sense from a practical perspective. While parties who own, operate, or lease public accommodations are the obvious choice for the obligations related to the day to day operation of the businesses imposed by section 302, see n.13, supra, parties who lease or operate a facility frequently will have nothing whatever to do with the initial design and construction of the facility. Indeed, it is not at all clear how one would even identify who it is that “operates” a facility that has not yet been built.

18 See Peyton v. Rowe, 391 U.S. 54, 65 (1968) (civil rights legislation should be liberally construed in order to effectuate its remedial purpose); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (it is a "familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes"). "[R]emedial statutes are to be liberally construed to effectuate their purposes." Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 155 n.54 (D.C. Cir. 1984). See also Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 18 (1st Cir. 1994) (broadly construing the ADA); Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993) (same), cert. denied sub nom. Hoskins v. Kinney, 114 S. Ct. 1545 (1994); Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994) (same).


19 Congress recognized that modifying or retrofitting a facility after it is built can be very costly (which is why Congress imposed only a limited obligation to remove architectural barriers to access in facilities in existence prior to the ADA's effective date — see 42 U.S.C. § 12182(b)(2)(A)(iv)), and therefore sought to have new facilities designed and constructed to be accessible from the beginning.

Because retrofitting existing structures to make them fully accessible is costly, a far lower standard of accessibility has been adopted for existing structures — a standard of "readily achievable." Because it costs far less to incorporate accessible design into the planning and constructing of new buildings and of alterations, a higher standard of "readily accessible to and usable by" person with disabilities has been adopted in the ADA for new construction and alterations.

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 60 (1990).


20 Section 804(f)(3)(C) of the Fair Housing Act provides that
For purposes of this subsection, discrimination includes in connection with the design and construction of covered multifamily dwellings for first occupancy after [March 13, 1991], a failure to design and construct those dwellings in such a manner that the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons . . . .
42 U.S.C. § 3604(f)(3)(C).

21 The term “operates” is not defined in the statute. One common dictionary defines the term to mean “to control or direct the functioning of,” “to conduct the affairs of,” or “to bring about or effect.” Webster’s II New Riverside University Dictionary 823 (1988). Similarly, Black’s Law Dictionary defines “operate” as “to perform a function, or operation, or produce an effect.” Black’s Law Dictionary 984 (5th ed. 1979).

22 Similar cases brought by the United States, each alleging violations of section 303 of the ADA, are pending against DIA and HFS in four other United States District Courts. U.S. Facts ¶ 4. Accordingly, this case may or may not be the first in which DIA and HFS are held to have violated title III of the ADA.




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