1 JAMES W. BRANNIGAN, JR. United States Attorney 2 JOHN R. NEECE Assistant U.S. Attorney 3 Chief, Civil Division 940 Front Street 4 Room 5-N-19 San Diego, California 92189-0150 5 Telephone: (619) 557-5662 6 JAMES P. TURNER Acting Assistant Attorney General 7 JOAN A. MAGAGNA BEBE NOVICH 8 JOSEPH C. RUSSO Attorneys 9 Public Access Section Civil Rights Division 10 U.S. Department of Justice P.O. Box 66738 11 Washington, D.C. 20035-6738 Telephone: (202) 307-0663 12 Attorneys for the United States of America 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 THEODORE A. PINNOCK, CIVIL No. 92-1370-R (CM) 16 Plaintiff, 17 v. 18 UNITED STATES' NOTICE INTERNATIONAL HOUSE OF OF CROSS-MOTION AND CROSS- 19 PANCAKES FRANCHISEE, et al., MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 20 Defendants. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 21 22 MAJID ZAHEDI doing business as INTERNATIONAL HOUSE OF 23 PANCAKES, 24 Counterclaimant, 25 v. DATE: September 7, 1993 TIME: 10:30 a.m. 26 THEODORE A. PINNOCK, and CTRM: 5 ROES 1 THROUGH 50, The Honorable John 27 S. Rhoades 28 Counterdefendants, and 1 THE UNITED STATES OF AMERICA, 2 Counterdefendant- 3 Intervenor. 4 5 PLEASE TAKE NOTICE that on September 7, 1993, at 10:30 6 a.m., in the courtroom of the Honorable John S. Rhoades, the 7 United States of America will bring on its cross-motion for 8 partial summary judgment, pursuant to Rule 56(c) of the 9 Federal Rules of Civil Procedure. This cross-motion seeks 10 summary judgment on defendant's counterclaim challenging the 11 constitutionality of title III of the Americans with 12 Disabilities Act of 1990, 42 U.S.C. S 12101 et seq., that is 13 the basis for defendant's motion for summary judgment filed 14 with this Court on May 17, 1993. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 PLEASE TAKE FURTHER NOTICE that the following briefing 2 schedule has been set by the Court and supersedes local rules: 3 Reply, if any, due August 16, 1993. 4 This motion is based upon the files and records of this 5 case and the attached memorandum of points and authorities. 6 Respectfully submitted, 7 8 JAMES P. TURNER 9 Acting Assistant Attorney General 10 11 DATE: By: 12 JAMES W. BRANNIGAN, JR. JOAN A. MAGAGNA 13 United States Attorney BEBE NOVICH JOHN R. NEECE JOSEPH C. RUSSO 14 Assistant U.S. Attorney Attorneys Chief, Civil Division Public Access Section 15 940 Front Street Civil Rights Division Room 5-N-19 U.S. Department of Justice 16 San Diego, Ca. 92189-0150 P.O. Box 66738 (619) 557-5662 Washington, D.C. 20035-6738 17 (202) 307-0663 18 TO: THEODORE A. PINNOCK Law Offices of Theodore A. Pinnock 19 9444 Balboa Avenue, Suite 225 San Diego, CA 92123 20 PETER D. LEPISCOPO 21 Law Offices of Peter D. Lepiscopo 2635 Camino del Rio South, Suite 108 22 San Diego, CA 92108 23 24 25 26 27 28 3 1 JAMES W. BRANNIGAN, JR. United States Attorney 2 JOHN R. NEECE Assistant U.S. Attorney 3 Chief, Civil Division 940 Front Street 4 Room 5-N-19 San Diego, California 92189-0150 5 Telephone: (619) 557-5662 6 JAMES P. TURNER Acting Assistant Attorney General 7 JOAN A. MAGAGNA BEBE NOVICH 8 JOSEPH C. RUSSO Attorneys 9 Public Access Section Civil Rights Division 10 U.S. Department of Justice P.O. Box 66738 11 Washington, D.C. 20035-6738 Telephone: (202) 307-0663 12 Attorneys for the United States of America 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 THEODORE A. PINNOCK, CIVIL No. 92-1370-R (CM) 16 Plaintiff, 17 v. 18 INTERNATIONAL HOUSE OF 19 PANCAKES FRANCHISEE, et al., 20 Defendants. 21 CERTIFICATE OF SERVICE 22 MAJID ZAHEDI doing business as INTERNATIONAL HOUSE OF 23 PANCAKES, 24 Counterclaimant, 25 v. 26 THEODORE A. PINNOCK, and ROES 1 THROUGH 50, 27 Counterdefendants, and 28 1 THE UNITED STATES OF AMERICA, 2 Counterdefendant- 3 Intervenor. 4 IT IS HEREBY CERTIFIED that: 5 I, Joseph C. Russo, am a citizen of the United States 6 over the age of eighteen years and a resident of the District of Columbia; my business address is Public Access Section, 7 Civil Rights Division, U.S. Department of Justice, P.O. Box 66738, Washington, D.C. 20035-6738; I am not a party to the 8 above-entitled action; and 9 On July 26, 1993, I deposited at a Federal Express Office at Washington, D.C., in the above-entitled action, in 10 envelopes bearing the requisite postage, copies of: 11 UNITED STATES' NOTICE OF CROSS-MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT'S 12 MOTION FOR SUMMARY JUDGMENT 13 UNITED STATES' MEMORANDUM IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT'S 14 MOTION FOR SUMMARY JUDGMENT 15 EXHIBITS TO UNITED STATES' MEMORANDUM IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 17 addressed to: Theodore A. Pinnock, Esq. Law Offices of Theodore A. Pinnock 18 9444 Balboa Avenue, Suite 225 San Diego, California 92123 19 and 20 Peter D. Lepiscopo Law Offices of Peter D. Lepiscopo 21 2635 Camino del Rio South, Suite 108 San Diego, California 92108 22 23 24 25 26 27 2 28 1 the last known addresses at which place there is delivery service of mail from the United States Postal Service. 2 I declare under penalty of perjury that the foregoing is 3 true and correct. 4 Executed in Washington, D.C. on July 26, 1993. 5 6 JOSEPH C. RUSSO 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 1 JAMES W. BRANNIGAN, JR. United States Attorney 2 JOHN R. NEECE Assistant U.S. Attorney 3 Chief, Civil Division 940 Front Street 4 Room 5-N-19 San Diego, California 92189-0150 5 Telephone: (619) 557-5662 6 JAMES P. TURNER Acting Assistant Attorney General 7 JOAN A. MAGAGNA BEBE NOVICH 8 JOSEPH C. RUSSO Attorneys 9 Public Access Section Civil Rights Division 10 U.S. Department of Justice P.O. Box 66738 11 Washington, D.C. 20035-6738 Telephone: (202) 307-0663 12 Attorneys for the United States of America 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 THEODORE A. PINNOCK, CIVIL No. 92-1370-R (CM) 16 Plaintiff, LEAVE GRANTED TO EXCEED 17 PAGE LIMIT OF LOCAL v. RULE 7.1(h) 18 INTERNATIONAL HOUSE OF 19 PANCAKES FRANCHISEE, et al., 20 Defendants. UNITED STATES' MEMORANDUM 21 IN SUPPORT OF ITS CROSS- MOTION FOR SUMMARY JUDGMENT 22 MAJID ZAHEDI doing business AND IN OPPOSITION TO as INTERNATIONAL HOUSE OF DEFENDANT'S MOTION FOR 23 PANCAKES, SUMMARY JUDGMENT 24 Counterclaimant, 25 v. DATE: September 7, 1993 TIME: 10:30 a.m. 26 THEODORE A. PINNOCK, and CTRM: 5 ROES 1 THROUGH 50, The Honorable John 27 S. Rhoades Counterdefendants, and 28 1 THE UNITED STATES OF AMERICA, 2 Counterdefendant- 3 Intervenor. 4 5 TABLE OF CONTENTS 6 TABLE OF AUTHORITIES . . . . iv 7 I. INTRODUCTION . . . . 1 8 II. THE AMERICANS WITH DISABILITIES ACT . . . . 2 9 III. SUMMARY OF ARGUMENT . . . . 4 10 IV. ARGUMENT . . . . 6 11 A. IN TITLE III OF THE ADA, CONGRESS PROPERLY EXERCISED 12 ITS BROAD POWER UNDER THE COMMERCE CLAUSE TO REACH THE ACTIVITIES OF RESTAURANTS LIKE IHOP. . . . . 6 13 1. IHOP Operates in Interstate Commerce. . . . . 7 14 2. Title III Reaches the Full Extent of the 15 Commerce Clause and Would Reach IHOP Even as Part of the Restaurant Industry Without Regard 16 to IHOP's Individual Impact on Interstate Commerce. . . . . 11 17 B. TITLE III DOES NOT INTRUDE UPON STATE SOVEREIGNTY IN 18 VIOLATION OF THE TENTH AMENDMENT. . . . . 17 19 C. TITLE III DOES NOT IMPROPERLY DELEGATE AUTHORITY TO EITHER THE EXECUTIVE OR JUDICIAL BRANCH. . . . . 20 20 D. TITLE III PROVIDES A SUFFICIENTLY PRECISE STANDARD OF 21 CONDUCT AND, THEREFORE, IS NOT UNCONSTITUTIONALLY VAGUE. . . . . 23 22 1. Readily Achievable Barrier Removal . . . . 27 23 2. Alternatives to Barrier Removal . . . . 31 24 3. Reasonable Modifications of Policies and Procedure . . . . 32 25 26 4. Most Integrated Setting Appropriate . . . . 34 27 ii 28 1 5. Undue Burden . . . . 36 2 6. Full and Equal Enjoyment and Opportunity to Participate . . . . 38 3 E. TITLE III OF THE ADA DOES NOT EFFECT AN 4 UNCONSTITUTIONAL TAKING WITHOUT JUST COMPENSATION. . 40 5 F. TITLE III IS NOT RETROACTIVE LEGISLATION. . . . . 50 6 V. CONCLUSION . . . . 53 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 iii 28 1 TABLE OF AUTHORITIES 2 CASES: 3 A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925) . . . . 24 4 Agins v. City of Tiburon, 447 U.S. 255 (1979) . . . . 40-41 5 American Power & Light Co. v. SEC, 329 U.S. 90 (1946) . . . 21 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . 2 7 Andrus v. Allard, 444 U.S. 51 (1979) . . . 44, 46-47, 47, 48 8 Baggett v. Bullitt, 377 U.S. 360 (1964) . . . . 24 9 Bandini Petroleum Co. v. Superior Court of Cal., 284 U.S. 8 10 (1931) . . . . 32 11 Barraclough v. ADP Automotive Claims Servs., Inc., 881 F. Supp. 1310 (N.D. Cal. 1993) . . . . 51 12 Bennett v. New Jersey, 470 U.S. 632 (1985) . . . . 51 13 Boutilier v. INS, 387 U.S. 118 (1967) . . . . 24 14 Boyce Motor Lines v. United States 342 U.S. 337 (1952) 15 . . . . 25, 25-26 16 Bradley v. School Bd. of Richmond, 416 U.S. 696 (1974) . . 51 17 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . 2 18 Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir. 1985) . . . . 25 19 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 20 Inc., 467 U.S. 837 (1984) . . . . 3 21 Colten v. Kentucky, 407 U.S. 104 (1972) . . . . 25 Commercial Builders v. Sacramento, 941 F.2d 872 (9th Cir. 22 1991) . . . . 48 23 Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986) . . . . 50 24 Cox v. Hart, 260 U.S. 427 (1922) . . . . 53 25 Daniel v. Paul, 395 U.S. 298 (1969) . . . . 10, 11 26 27 iv 28 1 Dean v. Thompson, No. 92 C 20388, 1993 WL 169734 (N.D. Ill. May 6, 1993) . . . . 51 2 Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922) 32-33 3 EEOC v. Ratliff, 906 F.2d 1314 (9th Cir. 1990) 4 . . . . 8, 10, 13, 14, 16, 16-17 5 Everard's Breweries v. Day, 265 U.S. 545 (1924) . . . . 47 6 FDIC v. Faulkner, 991 F.2d 262 (5th Cir. 1993), reh'q denied, June 30, 1993 WL . . . . 50 7 FHA v. Darlington, Inc., 358 U.S. 84 (1958), reh'q denied, 358 8 U.S. 937 (1959) . . . . 52 9 Fleming v. Rhodes, 331 U.S. 100 (1947) . . . . 52 10 Fleming v. USDA, 713 F.2d 179 (6th Cir. 1983) . . . . 26 11 Fowler v. Board of Educ., 819 F.2d 657 (6th Cir. 1987), cert. denied, 484 U.S. 986 (1987) . . . . 25 12 Fry v. United States, 421 U.S. 542 (1975) . . . . 16 13 Furey v. City of Sacramento, 780 F.2d 1448 (9th Cir. 1986) 41 14 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 15 (1985) . . . . 18 16 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1 (1824) . . . . 6 17 Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) . . 41, 46 18 Grayned v. City of Rockford, 408 U.S. 108 (1972) . . . . 25 19 Harris v. Lukhard, 733 F.2d 1075 (4th Cir. 1984) . . . . 33 20 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) . . . . 9, 13, 14, 49-50 21 Hepburn v. Griswold, 75 U.S. 603 (1869) . . . . 23 22 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 23 264 (1981) . . . . 6, 14, 16, 19, 41 24 Jackson Court Condominiums, Inc. v. City of New Orleans, 665 F. Supp. 1235 (E.D. La. 1987), aff'd, 874 F.2d 1070 (5th Cir. 25 1989) . . . . 37 26 Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264 (1920) . . . . 47 27 v 28 1 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) . . . . 20 2 Katzenbach v. McClung, 379 U.S. 294 (1964) . . . . 3 . . . . 6, 7, 9, 11, 13, 14, 15-16 4 Keyishian v. Board of Regents, 385 U.S. 589 (1967) . . . . 24 5 Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) . . . . 44, 45 6 Lai v. City and County of Honolulu, 841 F.2d 301 (9th Cir. 7 1988) . . . . 46 8 Lake Nacimiento Ranch v. County of San Luis Obispo County, 841 F.2d 872 (9th Cir. 1987) . . . . 44 9 Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 10 (1992) . . . . 44 11 Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 1977) . . . . 10 12 McAndrews v. Fleet Bank, 989 F.2d 13 (1st Cir. 1993) . . . 50 13 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . . . 7 14 McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 15 (1980) . . . . 6-7, 13 16 Miller v. Amusement Enters., Inc., 394 F.2d 342 (5th Cir. 1968) . . . . 9, 10 17 Miller v. Schoene, 276 U.S. 272 (1928) . . . . 50 18 Mistretta v. United States, 488 U.S. 361 (1989) . 20, 22, 23 19 NAACP v. Button, 371 U.S. 415 (1963) . . . . 24 20 New York v. United States, 112 S. Ct. 2408 (1992) . . . . 19 21 Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) . 48 22 Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135 (2d 23 Cir. 1984) . . . . 47 24 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) . . . . 43-44 25 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) 44, 45, 47 26 Perez v. United States, 402 U.S. 146 (1971) . . . . 7, 16 27 vi 28 1 Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990) 14 2 Railway Labor Executives' Ass'n v. Skinner, 934 F.2d 1096 (9th Cir. 1991) . . . 22 3 Rath Packing Co. v. M.H. Becker, 530 F.2d 1295 (9th Cir. 4 1975), aff'd sub nom. Jones v. Rath Packing Co., 430 U.S. 519, cert. denied, 430 U.S. 954, reh'g denied, 431 U.S. 925 5 (1977) . . . 26 6 Roberts v. United States Jaycees, 468 U.S. 609 (1984) . . . 38 7 Ruckelshaus v. Monsanto Co., 467 U.S. 985 (1984) . . . 47 8 Russell v. United States, 471 U.S. 858 (1985) . . . 13, 16 9 Rymer v. Douglas County, 764 F.2d 796 (11th Cir. 1985) . . 46 10 Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030 (11th Cir. 1992 . . . 14 11 Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989) 20-21 12 South Carolina v. Baker, 485 U.S. 505 (1988) . . . 18-19 13 Southeastern Community College v. Davis, 442 U.S. 397 14 (1979) . . . 33, 36 15 Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) 14, 16 16 Touby v. United States, 111 S. Ct. 1752 (1991) . . . 20 17 Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) . 41 18 United States v. American Trucking Ass'ns, Inc., 310 U.S. 534 (1940) . . . 23 19 United States v. Catanzaro, 368 F. Supp. 450 (D. Conn. 20 1973) . . . 28 21 United States v. Darby, 312 U.S. 100 (1941) . . . 6, 7, 16 22 United States v. Felsen, 648 F.2d 681 (10th Cir.), cert. denied, 484 U.S. 861 (1981) . . . 28 23 United States v. Manufacturer's Nat'l Bank, 363 U.S. 194 24 (1960) . . . 52-53 25 United States v. Morton, 467 U.S. 822 (1984) . . . 3 26 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) . . . 44 27 vii 28 1 United States v. Schneiderman, 968 F.2d 1564 (2d Cir. 1992), cert. denied, 113 S. Ct. 1283 (1993) . . . 26 2 United States v. Thirty-Seven Photographs, 402 U.S. 363 3 (1971) . . . 13 4 United States v. Vizena, 342 F. Supp. 553 (W.D. La. 1972) . 11 5 United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) 7 6 United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973) . . . 13 7 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) . 47, 50 8 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 9 455 U.S. 489 (1982) . . . 23-24, 24-25, 26, 26-27 10 Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . 27-28 11 West Virginia Mfrs. Ass'n v. West Virginia, 714 F.2d 308 (4th Cir. 1983) . . . 27 12 Wickark v. Filburn, 317 U.S. 111 (1942) . . . 7, 16 13 Yakus v. United States, 321 U.S. 414 (1944) . . . 21-22, 22 14 CONSTITUTION: 15 U.S. CONST. amend. V. . . . 40 16 U.S. CONST. amend. X. . . . 17 17 U.S. CONST. art. I, S 8 . . . 6, 12 18 U.S. CONST. art. III, S 2 . . . 23 19 STATUTES: 20 Americans with Disabilities Act, 21 42 U.S.C. SS 12181-89 (Supp. II 1990) . . . 1 22 42 U.S.C. S 12101(b)(1) (Supp. II 1990) . . . 2, 48-49 23 42 U.S.C. S 12101(b)(2) (Supp. II 1990) . . . 48-49 24 42 U.S.C. S 12101(b)(4) (Supp. II 1990) . . . 2, 12-13 25 42 U.S.C. S 12102(2) (Supp. II 1990) . . . 21 26 42 U.S.C. S 12181(1) (Supp. II 1990) . . . 12 27 viii 28 1 42 U.S.C. S 12181(2) (Supp. II 1990) . . . 21 2 42 U.S.C. S 12181(7) (Supp. II 1990) . . . 3, 12, 21 3 42 U.S.C. S 12181(9) (Supp. II 1990) . . . 28, 41, 42 4 42 U.S.C. S 12181 note (Supp. II 1990) . . . 51 5 42 U.S.C. S 12182 (Supp. II 1990) . . . 3, 21, 41 6 42 U.S.C. S 12182(a) (Supp. II 1990) . . . 3, 38 7 42 U.S.C. S 12182(b)(1)(A)(i) (Supp. II 1990) 4, 38-39, 39 8 42 U.S.C. S 12182(b)(1)(A)(ii) (Supp. II 1990) . . 4, 39 9 42 U.S.C. S 12182(b)(1)(A)(iii) (Supp. II 1990) . 4, 39 10 42 U.S.C. S 12182(b)(1)(B) (Supp. II 1990) . . . 4, 34 11 42 U.S.C. S 12182(b)(2)(A)(i) (Supp. II 1990) . . . 4 12 42 U.S.C. S 12182(b)(2)(A)(ii) (Supp. II 1990) . . 4, 32 13 42 U.S.C. S 12182(b)(2)(A)(iii) (Supp. II 1990) . 4, 36 14 42 U.S.C. S 12182(b)(2)(A)(iv) (Supp. II 1990) 4, 17, 27 15 42 U.S.C. S 12182(b)(2)(A)(v) (Supp. II 1990) . . 4, 31 16 42 U.S.C. S 12183 (Supp. II 1990) . . . 4, 41-42 17 42 U.S.C. S 12186(b) (Supp. II 1990) . 3, 17, 21, 26, 41 18 42 U.S.C. S 12186(c) (Supp. II 1990) . . . 17, 21, 41 19 42 U.S.C. S 12187 (Supp. II 1990) . . . 21 20 42 U.S.C. S 12188 (Supp. II 1990) . . . 21 21 42 U.S.C. S 12188(b)(1)(A)(ii) (Supp. II 1990) . . . 20 22 42 U.S.C. S 12204 (Supp. II 1990) . . . 17 23 42 U.S.C. S 12206(c)(3) (Supp. II 1990) . . . 27 24 42 U.S.C. S 12206(d) (Supp. II 1990) . . . 27 25 26 27 ix 28 1 Civil Rights Act of 1964, 2 42 U.S.C. S 2000a(a)(6) (1988) . . . . 38 3 Fair Housing Act, 4 42 U.S.C. S 3604(f)(3)(B) (1988) . . . . 38 5 42 U.S.C. S 3631 (1988) . . . . 38 6 Federal Insecticide, Fungicide, and Rodenticide Act, 7 7 U.S.C. S 136 (1988) . . . . 47 8 28 U.S.C. S 2403 (1988) . . . . 1 9 Federal Railway Safety Act of 1970 (as amended), 10 45 U.S.C. S 431(a) (1988) . . . . 22 11 Rehabilitation Act of 1973, 12 29 U.S.C. S 794 (1973) . . . . 36 13 REGULATIONS: 14 28 C.F.R. pt. 36 (1991) . . . . 26 15 28 C.F.R. pt. 36, app. A, S 2.2 (1991) . . . . 19 16 28 C.F.R. pt. 36, app. B (1991) . . . . 27, 33-34, 35 17 28 C.F.R. S 36.104 (1991) . . . . 3, 29, 36-37 18 28 C.F.R. S 36.104, app. B (1991) . . . . 29-30, 30, 35, 36 19 28 C.F.R. S 36.201 (1991) . . . . 3 20 28 C.F.R. S 36.202, app. B (1991) . . . . 35, 40 21 28 C.F.R. S 36.302(c) (1991) . . . . 33 22 28 C.F.R. S 36.302(d) (1991) . . . . 33 23 28 C.F.R. S 36.304(b) (1991) . . . . 29, 42 24 28 C.F.R. S 36.304(b), app. B (1991) . . . . 29 25 28 C.F.R. S 36.304(d) (1991) . . . . 17 26 28 C.F.R. S 36.305(b) (1991) . . . . 31-32 27 x 28 1 28 C.F.R. S 36.305(b), app. B (1991) . . . . 31-32 2 28 C.F.R. S 36.406 (1991) . . . . 42 3 28 C.F.R. S 36.406(a) (1991) . . . . 17 4 56 Fed. Reg. 35,544 (1991) . . . . 2, 23 5 56 Fed. Reg. 35,545 (1991) . . . . 23 6 LEGISLATIVE HISTORY: 7 134 Cong. Rec. E1308 (1988) (statement of Rep. Coelho) . . . . 15 8 136 Cong. Rec. E1913 (1990) (statement of Rep. Hoyer) . . . . 5, 13 9 138 Cong. Rec. S614 (1992) (statement of Sen. Durenberger) . . . . 15 10 H.R. Rep. No. 485, 101st Cong., 2d Sess., pts. II, III (1990), reprinted in 1990 U.S.C.C.A.N. 327 . . . . 35-36, 36, 45 11 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . 12 . . . . 28-29, 31, 34, 36, 38, 42, 48, 49 13 RULES: 14 Fed. R. Civ. P. 56(c) . . . . 1 15 MISCELLANEOUS: 16 U.S. Department of Justice, The Americans with Disabilities Act -- Title III Technical Assistance Manual (1992 & Supp. 17 1993) . . . . 27, 30, 32, 34, 35, 37, 40 18 19 20 21 22 23 24 25 26 27 xi 28 1 I. INTRODUCTION 2 Plaintiff Theodore Pinnock filed this action under title 3 III of the Americans with Disabilities Act of 1990 ("ADA"), 42 4 U.S.C. SS 12181-89 (Supp. II 1990), against the owners and 5 operators of the International House of Pancakes restaurant 6 ("IHOP") located at 5370 Kearny Mesa Road in San Diego. Title 7 III of the ADA prohibits discrimination on the basis of 8 disability in places of public accommodation, including 9 restaurants. In his complaint, Pinnock alleged that IHOP 10 failed to comply with certain title III provisions applicable 11 to existing places of public accommodation. 12 IHOP has counterclaimed, asserting that title III is 13 unconstitutional on various grounds. Because the 14 constitutionality of a Federal statute was called in question, 15 this Court duly notified the Attorney General and, upon 16 uncontested motion, the United States was granted leave to 17 intervene, pursuant to 28 U.S.C. S 2403 (1988) to defend the 18 constitutionality of title III. 19 The case is now before the Court on cross-motions for 20 summary judgment filed by IHOP and the United States regarding 21 the constitutional issues raised in IHOP's counterclaim. 22 Summary judgment is proper under Federal Rule of Civil 23 Procedure 56(c) where the "pleadings, depositions, answers to 24 interrogatories, and admissions on file, together with the 25 affidavits, if any, show that there is no genuine issue as to 26 any material fact and that the moving party is entitled to a 27 1 28 1 judgment as a matter of law." Celotex Corp. v. Catrett, 477 2 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 3 U.S. 242, 247 (1986). We demonstrate below that there are no 4 disputes of fact and there is no merit to any of the 5 constitutional challenges asserted by IHOP.1 Accordingly, 6 this Court should grant the United States' cross-motion for 7 summary judgment, deny IHOP's motion, and dismiss IHOP's 8 counterclaim. 9 10 II. THE AMERICANS WITH DISABILITIES ACT 11 The stated purpose of the ADA is "to provide a clear and 12 comprehensive national mandate for the elimination of 13 discrimination against individuals with disabilities." 42 14 U.S.C. S 12101(b) (1) (Supp. II 1990).2 Congress invoked the 15 full sweep of its authority under the Commerce Clause and the 16 Fourteenth Amendment to accomplish this mandate. Id. S 17 12101(b) (4) (Supp. II 1990). The ADA's coverage is 18 accordingly broad -- prohibiting discrimination on the basis 19 of disability in employment, State and local government 20 programs and services, transportation systems, 21 telecommunications, commercial facilities, and the provision 22 23 1 We take no position on the underlying merits of Pinnock's substantive ADA claim or IHOP's nonconstitutional defenses. 24 25 2 For the Court's convenience, the full text of the title III regulation and preamble, as published in the Federal 26 Register, is attached as Exhibit A. 56 Fed. Reg. 35,544 (1991). 27 2 28 1 of goods and services offered to the public by private 2 businesses. 3 This case involves the application of title III of the 4 ADA, which applies to privately owned and operated public 5 accommodations and commercial facilities. As defined in the 6 Act and in the regulation promulgated under title III, "public 7 accommodation" means a private entity that owns, operates, or 8 leases a place of public accommodation. Id. SS 12181(7) & 9 12182 (Supp. II 1990); 28 C.F.R. SS 36.104, at 460, 36.201, at 10 461 (1991).3 Places of public accommodation are defined in 11 title III as any of twelve categories of facilities whose 12 operations affect commerce, one category of which is 13 "restaurant[s], bar[s], or other establishment[s] serving food 14 or drink," 42 U.S.C. S 12181(7) (Supp. II 1990). 15 For existing facilities, such as IHOP, title III imposes 16 certain obligations to prevent discrimination on the basis of 17 disability. Such facilities may not deny persons with 18 disabilities the full and equal enjoyment of their goods, 19 services, facilities, privileges, advantages, or 20 accommodations. Id. S 12182(a). This general rule encompasses 21 prohibitions against: 22 23 3 Throughout this memorandum, we cite the regulation implementing title III. This regulation was promulgated 24 pursuant to statutory mandate, 42 U.S.C. S 12186(b) (Supp. II 1990), and, therefore, should be accorded "controlling 25 weight," unless found to be "arbitrary, capricious, or plainly contrary to the statute." United States v. Morton, 467 U.S. 26 822, 834 (1984); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). 27 3 28 1 (1) denying the opportunity to participate or benefit in the goods, services, etc., id. S 12182(b)(1)(A)(i); 2 (2) affording unequal participation in or an unequal 3 benefit from the goods and services, id. S 12182(b)(1)(A)(ii); 4 (3) unnecessarily affording separate or different goods 5 and services, id. S 12182(b)(1)(A)(iii); 6 (4) providing goods or services in a segregated setting, id. S 12182(b)(1)(B); 7 (5) imposing unneccessary discriminatory eligibility 8 criteria to receive goods and services, id. S 12182(b)(2)(A)(i); 9 (6) failing to make reasonable modifications in policies, 10 practices, and procedures when necessary to afford goods and services, unless doing so would fundamentally alter 11 the nature of the goods and services provided, id. S 12182(b)(2)(A)(ii); 12 (7) failing to provide auxiliary aids and services for 13 communication, unless doing so would cause an undue burden or would fundamentally alter the nature of the 14 goods and services provided, id. S 12182(b)(2)(A)(iii); 15 (8) failing to remove architectural barriers and communication barriers that are structural in nature 16 where removal is readily achievable, id. S 12182(b)(2)(A)(iv); and 17 (9) failing to take alternative measures to provide 18 goods and services if such measures are readily achievable in those instances where barrier removal 19 is not readily achievable, id. S 12182(b)(2)(A)(V).4 20 21 III. SUMMARY OF ARGUMENT 22 1. The enactment of title III of the ADA was well within 23 Congress' broad power to legislate under the Commerce Clause, 24 4 Only the title III obligations imposed on existing, 25 unaltered facilities are at issue in this action. Title III has additional requirements for alterations of existing 26 facilities and for the construction of new facilities. See 42 U.S.C. S 12183 (Supp. II 1990). 27 4 28 1 and title III properly reaches the conduct of privately owned 2 and operated restaurants, including IHOP, regardless of 3 whether their individual operations would, standing alone, 4 substantially affect interstate commerce.5 5 2. Congress' enactment of title III does not intrude on 6 State sovereignty in violation of the Tenth Amendment. 7 3. Congress has not improperly delegated legislative 8 authority to the executive and judicial branches either by 9 directing the Attorney General to develop regulations 10 implementing title III or by authorizing the federal courts to 11 hear title III claims. 12 4. The statutory language of title III, as further 13 amplified by the Department of Justice's title III regulation, 14 is sufficiently precise to notify covered entities of their 15 obligations and, thus, is not unconstitutionally vague. 16 5. Title III does not destroy or adversely affect the 17 economic viability of IHOP's operations and, accordingly, does 18 not effect a taking requiring compensation under the Fifth 19 Amendment. 20 21 22 5 We agree with IHOP that constitutional authority for title III's application to private business must be found in 23 the Commerce Clause. (See IHOP Mem. at 16). When it enacted the ADA, Congress invoked its powers under both the Fourteenth 24 Amendment and the Commerce Clause because the Act imposes obligations upon both state actors (titles I and II) and 25 private entities (titles I, III and IV). See 136 CONG. REC. E1913 (1990) (statement by Rep. Hoyer). The Commerce Clause 26 provides the authority for reaching the conduct of private entities under title III. Id. 27 5 28 1 6. Title III's application to existing facilities is not 2 a retroactive application that would violate the Due Process 3 Clause. 4 5 IV. ARGUMENT 6 A. IN TITLE III OF THE ADA, CONGRESS PROPERLY EXERCISED ITS BROAD POWER UNDER THE COMMERCE CLAUSE TO REACH THE 7 ACTIVITIES OF RESTAURANTS LIKE IHOP. 8 Article I, Section 8 of the Constitution grants Congress 9 the power to "regulate Commerce . . . among the several 10 States" and to enact all laws necessary and proper to this 11 end. U.S. CONST., art. I, S 8, cls. 3, 18; Katzenbach v. 12 McClung, 379 U.S. 294, 301-02 (1964). The Supreme Court has 13 repeatedly emphasized the expansiveness of the Commerce Clause 14 power. 15 [T]he Commerce Clause is a grant of plenary authority to Congress. . . . This power is "complete 16 in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are 17 prescribed in the constitution." 18 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 19 264, 276 (1981) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 20 1 (1824); accord United States v. Darby, 312 U.S. 100, 114 21 (1941). 22 Because this authority is so broad, the Commerce Clause 23 has been interpreted consistently to empower Congress to 24 regulate not only interstate activities, but also intrastate 25 activities that substantially affect interstate commerce. 26 See, e.g., McLain v. Real Estate Bd. of New Orleans, Inc., 27 6 28 1 444 U.S. 232, 241 (1980); Perez v. United States, 402 U.S. 2 146, 151 (1971) (citing United States v. Wrightwood Dairy Co., 3 315 U.S. 110, 119 (1942)); Wickard v. Filburn, 317 U.S. 111, 4 122-25 (1942); Darby, 312 U.S. at 118; McCulloch v. Maryland, - 5 17 U.S. (4 Wheat.) 316, 421 (1819). 6 IHOP does not take issue with these general principles 7 (see IHOP Mem. at 43-46). Rather, IHOP argues that its 8 conduct is not covered by title III because its operations are 9 entirely intrastate (IHOP Mem. at 47). However, we 10 demonstrate below, based on undisputed facts, that IHOP 11 operates in interstate commerce and, in any event, as part of 12 the restaurant industry, IHOP is properly subject to Commerce 13 Clause regulation regardless of its individual impact on 14 interstate commerce. 15 1. IHOP Operates in Interstate Commerce. 16 To buttress its assertion that its activities are solely 17 intrastate, IHOP offers as evidence only the statement that 18 "all products (i.e., eggs, meat, bread, milk, etc.) that are 19 served at IHOP were purchased within the state of 20 California." However, the determination of whether a 21 business operates in interstate commerce encompasses far more 22 than merely information about where the final products it uses 23 are purchased. See Katzenbach, 379 U.S. at 296-97 (under 24 title II of the Civil Rights Act of 1964, restaurant found to 25 operate in interstate commerce where 46% of food served 26 6 Declaration of Majid Zahedi, P 9. 27 7 28 1 originated out-of-state, though defendant purchased the food 2 from a local supplier); EEOC v. Ratliff, 906 F.2d 1314, 1316 3 (9th Cir. 1990) (under title VII of the Civil Rights Act of 4 1964, employer found to operate in interstate commerce where 5 it used items that "have moved through interstate commerce at 6 some point"). 7 IHOP is a franchise of a large, international, publicly 8 traded corporation ("IHOP Corp."), organized under Delaware 9 law.7 IHOP Corp. had total retail sales of $479 million in 10 1992, operates 547 franchises in 35 states, Canada, and Japan, 11 and employs 16,000 persons.8 We submit that the franchise 12 relationship with IHOP Corp., without more, is sufficient to 13 establish IHOP as fully in the mainstream of interstate 14 commerce. However, there are many additional facts to support 15 the conclusion that IHOP is an interstate business. 16 IHOP is located directly across the street from State 17 Highway 163, and within 2 miles of two interstate highways.9 18 Across Kearny Mesa Road from IHOP, within walking distance of 19 the restaurant, are three hotels.10 Three motels are located 20 21 22 7 See IHOP Corp. July 12, 1991 Prospectus ("Prospectus"), attached as Exhibit B, at 6; 23 8 See IHOP Corp. 1992 Annual Report, attached as 24 Exhibit C, at inside cover, 2-3, 8. 25 9 See Declaration of Sean M. Flynn ("Flynn Declaration"), attached as Exhibit D, PP 9-12. 26 10 Id. P 13. 27 8 28 1 within 1 1/2 miles from IHOP.11 The courts have found these 2 facts to be indicia of a business operating in interstate 3 commerce. See Katzenbach, 379 U.S. at 127 (restaurant on 4 state highway, 11 blocks from interstate highway, affected 5 commerce); Heart of Atlanta Motel, Inc. v. United States, 379 6 U.S. 241, 243 (1964) (motel 2 blocks from downtown road and 7 "readily accessible" to two intrastate and two interstate 8 highways affected commerce); Miller v. Amusement Enters., 9 Inc., 394 F.2d 342, 345 (5th Cir. 1968) (amusement park 150 10 yards from intrastate highway affected commerce). 11 IHOP has advertised at one of the hotels.12 It 12 contributes to a national advertising account through which 13 IHOP Corp. advertises nationally.13 It contributes to a co- 14 op, serving a number of IHOP franchises. This co-op 15 advertises in newspapers and television.14 The courts have 16 17 11 Id. P 14. 18 12 Deposition of Majid Zahedi ("Zahedi Dep.") at 54-57, 61. Mr. Zahedi noted that he advertised at the hotel in order 19 to attract its guests to IHOP. Id. at 56. Copies of the referenced pages from the Zahedi Dep. are attached as Exhibit 20 E. These pages and the complete copy of the transcript filed with the Court today were reproduced from an unsigned copy of 21 the transcript provided by the court reporter. We have not yet received the signed deposition transcript from IHOP. 22 IHOP's counsel promised to inform us of any changes to the transcript by July 9, 1993. Zahedi Dep. at 299-300. At this 23 time, IHOP's counsel has failed to notify us of any such changes and has not provided us with the signed copy. 24 13 See Prospectus at 23; Zahedi Dep. at 41-42. IHOP 25 Corp. spent $9.4 million in advertising dollars in 1990. See Prospectus at 22. 26 14 Zahedi Dep. at 43. 27 9 28 1 deemed such conduct to be characteristic of a business 2 operating in interstate commerce. See Daniel v. Paul, 395 3 U.S. 298, 304 (1969) (targeting advertising to out-of-state 4 visitors at area hotels and motels); Miller, 394 F.2d at 349 5 (advertising on radio and television without geographic 6 restrictions). 7 IHOP serves customers from out of state and accepts 8 payment by out-of-state credit cards.15 It also carries 9 insurance written by an interstate company.16 These are 10 further attributes of a business in interstate commerce. 11 Ratliff, 906 F.2d at 1316, 1317 n.4 (serving out-of-state 12 patrons and carrying insurance from out-of-state company); 13 Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 14 1977) (serving out-of-state clients). 15 Most of the food and non-food items used by IHOP have 16 moved in interstate commerce.17 These facts establish that 17 15 Zahedi Dep. at 57, 194-95; Flynn Declaration, P 15. 18 16 IHOP's insurer, Farmer's Insurance, operates in 28 19 states. See Zahedi Dep. at 202-07; Declaration of Timothy P. Leach, attached as Exhibit F, PP 4-5. 20 17 Most of the food IHOP serves, including some 21 ingredients in its pancakes, its largest selling items, were procured by IHOP's distributors from outside California. The 22 food items procured from out-of-state include all or the majority of: its meat products, including bacon, ham, 23 hamburger, and chicken, see Zahedi Dep. at 89-92; Declaration of John Renna, attached as Exhibit G, PP 5-6; its pancake 24 syrups, see Zahedi Dep. at 83-86; Declaration of John Kocinski, attached as Exhibit I, PP 5, 6d; its boxed pancake 25 mixes, see Declaration of Grace Guillory, attached as Exhibit H, PP 3-4; its coffee and tea, see Zahedi Dep. at 83-85, 117- 26 18; Kocinski Declaration (Exhibit I), PP 5, 6c, and Declaration of Sam Heron, attached as Exhibit J, PP 5-9; its 27 10 28 1 IHOP operates in interstate commerce. See Daniel, 395 U.S. at 2 305 (Supreme Court took judicial notice that the principal 3 ingredients of the food most often sold by defendant, 4 hamburgers, hot dogs, soft drinks, and milk, probably 5 originated out-of-state); Katzenbach, 379 U.S. at 296-97 6 (restaurant that served food, 46% of which originated out-of- 7 state, operated in interstate commerce); United States v. 8 Vizena, 342 F. Supp. 553, 554-55 (W.D. La. 1972) (defendant's 9 bar found to operate in interstate commerce because juke box, 10 pool table, pool equipment, and records played on the juke box 11 originated out-of-state). 12 2. Title III Reaches the Full Extent of the Commerce Clause and Would Reach IHOP Even as Part of the 13 Restaurant Industry Without Regard to IHOP's Individual Impact on Interstate Commerce. 14 Even if IHOP could possibly establish that it is strictly 15 an intrastate operation, it would be covered by title III 16 because title III reaches intrastate conduct having a 17 substantial effect on interstate commerce and IHOP, as part of 18 the restaurant industry, fits that description. 19 a. It is apparent from the language of the statute 20 itself and from the legislative history that Congress intended 21 22 potatoes and potato products, see Zahedi Dep. at 96-99; 23 Declaration of Dennis Moore, attached as Exhibit K, PP 4-6, 6a, 6d; and Declaration of Drew Russo, attached as Exhibit L, 24 P: 4, 5, 5a, 5b, 5e; and its condiments, including Tabasco Sauce, ketchup, mustard, etc., see Zahedi Dep. at 131-45 and 25 Renna Declaration (Exhibit G), PP 4-6, 61-6n. In addition, the majority of IHOP's silverware and equipment bears labels 26 indicating out-of-state manufacture. See Flynn Declaration at 16-19. 27 11 28 1 title III to reach activities of places of public 2 accommodation to the fullest extent permissible under the 3 Commerce Clause. To have this scope, a statute need not, as 4 IHOP argues (IHOP Mem. at 46-47), state explicitly that it 5 covers intrastate activities having a substantial effect on 6 interstate commerce. 7 By invoking the language of the Commerce Clause itself, 8 Congress indicates that a statute is to reach as broadly as 9 that clause permits. The Commerce Clause grants Congress the 10 power to regulate commerce with "foreign Nations, and among 11 the several States." U.S. CONST. art. I, S 8, cl. 3. Title 12 III of the ADA covers, inter alia, "public accommodations," 13 which are defined by an illustrative list of types of 14 facilities whose operations "affect commerce." 42 U.S.C. S 15 12181(7) (Supp. II 1990). Title III uses the language of the 16 Commerce Clause, defining "commerce" as travel, trade, 17 traffic, commerce, transportation, or communication: 18 (A) among the several States; 19 (B) between any foreign country or any territory or possession and any State; or 20 (C) between points in the same State but through 21 another State or foreign country. 22 Id. S 12181(1). In addition, the ADA's statement of purpose 23 recites that it intends "to invoke the sweep of congressional 24 25 26 27 12 28 1 authority, including the power . . . to regulate commerce." 2 Id. S 12101(b)(4).18 3 Statutes that use the same "affect commerce" language as 4 title III have been interpreted to demonstrate congressional 5 intent to encompass the full extent of the commerce power. 6 See, e.g., Russell v. United States, 471 U.S. 858, 859 (1985); 7 Ratliff, 906 F.2d at 1316. Courts have uniformly upheld the 8 constitutionality of statutes that cover entities whose 9 activities "affect commerce," including title II of the Civil 10 Rights Act of 1964, which was the model for title III of the 11 ADA. See Katzenbach, 379 U.S. at 298; Heart of Atlanta Motel, 12 Inc., 379 U.S. at 258; see also McLain v. Real Estate Bd. of 13 New Orleans, Inc., 444 U.S. 232, 241 (1980) (Sherman Act); 14 Ratliff, 906 F.2d 1314 (title VII of Civil Rights Act of 15 1964).19 16 18 See also 136 CONG. REC. E1913 (1990) (statement of 17 Rep. Hoyer) ("Congress also, of course, has broad authority to pass antidiscrimination laws under the commerce clause . . . 18 ."). 19 19 IHOP also argues that the Commerce Clause does not give Congress authority to regulate strictly instrastate 20 activities that do not substantially affect interstate commerce. We quite agree. But we disagree with IHOP's 21 suggestion that title III was intended to have such an overly broad scope. As stated above, title III uses the language of 22 the Commerce Clause and states that it intends "to invoke the sweep of congressional authority." 42 U.S.C. S 12101(b)(4) 23 (Supp. II 1990). Nothing in the ADA purports to go beyond such authority. 24 Courts should construe a statute within constitutional 25 limits if consistent with congressional intent. See, e.g., United States Civil Serv. Comm'n v. National Ass'n of Letter 26 Carriers, 413 U.S. 548, 571 (1973); United States v. Thirty- Seven Photographs, 402 U.S. 363, 368 (1971). 27 13 28 1 b. In deciding whether a Federal statute operates within 2 the constitutional authority granted under the Commerce 3 Clause, a court may consider only: (1) whether regulation of 4 the activity at issue is rationally related to a legitimate 5 constitutional end, and (2) whether the means chosen by the 6 statute are reasonable to reach that end. Preseault v. 7 Interstate Commerce Comm'n, 494 U.S. 1, 11-12 (1990); Hodel, 8 452 U.S. at 276 (citing Heart of Atlanta Motel, 379 U.S. at 9 262). 10 Courts must defer to congressional findings that an 11 activity affects commerce, so long as there is a rational 12 basis for such a finding, but formal congressional findings 13 are not necessary. Hodel, 452 U.S. at 276; Katzenbach, 379 14 U.S. at 303-04; Seniors Civil Liberties Ass'n v. Kemp, 965 15 F.2d 1030, 1034 (11th Cir. 1992) (citing Preseault, 494 U.S. 16 at 18); Stevens v. United States, 440 F.2d 144, 151-52 (6th 17 Cir. 1971). In fact, a court may take judicial notice of some 18 publicly known facts in determining the rationality of a 19 statute. See, e.g., Ratliff, 906 F.2d at 1318 (commenting on 20 the ease with which the court may take judicial notice of the 21 spa industry's affect on interstate commerce); Stevens, 440 22 F.2d at 151-52 (the fact that possession of firearms by 23 convicted felons threatens interstate commerce "is a statement 24 of facts of public knowledge of which this Court will take 25 judicial notice"). 26 27 14 28 1 The ADA's legislative history reflects that 2 discrimination in restaurants against persons with 3 disabilities has adverse affects on persons with 4 disabilities.20 Congress is well within its Commerce Clause 5 power to redress such discrimination. As the Supreme Court 6 has recognized in the context of racial discrimination, the 7 restaurant industry unquestionably affects interstate commerce 8 in a substantial way. In Katzenbach, the Court noted that 9 discrimination in restaurants ha[s] a direct and highly restrictive effect upon interstate travel by 10 Negroes. This resulted . . . because discriminatory practices prevent Negroes from buying prepared food 11 served on the premises while on a trip, except in isolated and unkempt restaurants and under most 12 unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel 13 without eating. Likewise, . . . discrimination deter[s] professional, as well as skilled, people 14 from moving into areas where such practices occurred and thereby cause[s] industry to be reluctant to 15 establish there. 16 20 See the statements of the Honorable Tony Coelho of 17 California, introducing the original bill to the House of Representatives: 18 Our Society has been inadvertently structured in a 19 way that unnecessarily denies innumerable opportunities, great and small, to people with 20 disabilities, in ways that are never even noticed by most Americans. Simple daily tasks, like visiting a 21 grocery store or the bank, going to a restaurant, or a movie . . . can become monumental tasks or 22 impossible barriers to overcome - not due to the actual physical or mental conditions of disabled 23 Americans, but due to prejudice, fears, and unnecessary obstacles which have been placed in 24 their path. 25 134 CONG. REC. E1308 (1988) (statement of Rep. Coelho) (emphasis added); see also 138 CONG. REC. S614 (1992) 26 (statement of Sen. Durenberger). 27 15 28 1 Katzenbach, 379 U.S. at 300. 2 The commerce power allows Congress to regulate any 3 entity, regardless of its individual impact on interstate 4 commerce, so long as the entity engages in a class of 5 activities that affects interstate commerce. Russell, 471 6 U.S. at 862; Hodel, 277 (citing Fry v. United 7 States, 421 U.S. 542, 547 (1975)), Perez v. United States, 402 8 U.S. 146, 151-54 (1971). As the Supreme Court stated in 9 Darby, Congress has "recognized that in present day industry, 10 competition by a small part may affect the whole and that the 11 total effect of the competition of many small producers may be 12 great." Darby, 312 U.S. at 123; Wickard, 317 U.S. at 128-29; 13 Ratliff, 906 F.2d at 1318; Stevens, 440 F.2d at 151-52. 14 In Russell, for example, the Supreme Court sustained a 15 federal arson statute's coverage of a landlord whose property 16 had no direct connection to interstate commerce. Russell, 471 17 U.S. 858. The Court noted that "the local rental of an 18 apartment unit is merely an element of a much broader 19 commercial market in rental properties" and concluded that 20 "[t]he congressional power to regulate the class of activities 21 that constitute the rental market for real estate includes the 22 power to regulate individual activity within that class." Id. 23 at 862; see also Ratliff, 906 F.2d at 1317-18 (upholding 24 plaintiff's claim that "as a matter of law if a local business 25 within a class of activities which in the aggregate has an 26 effect on commerce, there is no need for a particularized 27 16 28 1 factual showing that the [business] meets the 'affecting- 2 commerce' test".) Thus, regardless of IHOP's individual 3 circumstances, it is subject to Commerce Clause regulation as 4 part of the restaurant industry. 5 6 B. TITLE III DOES NOT INTRUDE UPON STATE SOVEREIGNTY IN VIOLATION OF THE TENTH AMENDMENT. 7 The Tenth Amendment reserves to State governments "the 8 powers not delegated to the United States by the Constitution 9 nor prohibited by it." U.S. CONST. amend. X. Title III 10 regulates private activity in a manner that does not usurp 11 State authority or intrude upon State sovereignty. Therefore, 12 contrary to IHOP's argument, title III does not contravene the 13 Tenth Amendment. 14 Title III requires existing places of public 15 accommodation, like IHOP, to remove architectural barriers to 16 access where such removal is readily achievable. 42 U.S.C. S 17 12182 (b) (2) (A) (iv) (Supp. II 1990). The title III regulation 18 provides that measures taken to comply with barrier removal 19 must, if readily achievable, comply with the Standards for 20 Accessible Design applicable to alterations. 28 C.F.R. SS 21 36.304 (d), at 467, 36.406(a), at 474 (1991).21 IHOP argues 22 that the design standards comprise, essentially, a national 23 21 The title III regulation adopted as its Standards for 24 Accessible Design ("Standards") the ADA Accessibility Guidelines ("ADAAG") issued by the Architectural and 25 Transportation Barriers Compliance Board ("Access Board"). See 28 C.F.R. S 36.304 (d), at 467 (1991); 42 U.S.C. SS 26 12186(b)-(c), 12204 (Supp. II 1990). 27 17 28 1 building code that violates the Tenth Amendment because 2 building codes are "essentially local in nature" and, 3 therefore, exclusively within the regulatory authority of the 4 States. (IHOP Mem. at 41). 5 The Supreme Court has rejected the argument IHOP makes, 6 that a Federal law violates the Tenth Amendment simply because 7 the law regulates in an area traditionally subject to State 8 regulation. In its landmark decision, Garcia v. San Antonio 9 Metropolitan Transit Authority, the Court found 10 unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that 11 turns on a judicial appraisal of whether a particular governmental function is "integral" or 12 "traditional." 13 469 U.S. 528, 546-47 (1985). In rejecting the "integral or 14 traditional governmental function" test, the Court observed 15 that the "composition of the federal government was designed 16 in large part to protect the states from overreaching by 17 Congress." Id. at 551. Finding the Constitution's limitation 18 on Congress' actions with respect to States to be one of 19 "process rather than one of result," id. at 554, the Court 20 ruled that the sovereignty of States is protected by "the 21 built-in restraints that our system provides through state 22 participation in federal governmental action." Id. at 556. 23 Similarly, in South Carolina v. Baker, the Court ruled 24 that Congress' removal of Federal tax exemption for interest 25 earned on State and local government bonds did not violate the 26 Tenth Amendment. 485 U.S. 505, 512 (1988). Rejecting South 27 18 28 1 Carolina's substantive analysis, the Court said, "States must 2 find their protection from congressional regulation through 3 the national political process, not through judicially defined 4 spheres of unregulable activity." Id. at 512. 5 Title III does not "commandee[r] the legislative 6 processes of the states by directly compelling them to enact 7 and enforce a federal regulatory program." New York v. United 8 States, 112 S. Ct. 2408, 2420 (1992) (citing Hodel, 452 U.S. 9 at 288). In New York, the Supreme Court ruled that certain 10 provisions of the Federal Low-Level Radioactive Waste Policy 11 Act were unconstitutional because they required states to 12 choose between either "accepting ownership of [radioactive] 13 waste or regulating according to the instructions of 14 Congress." New York, 112 S. Ct. at 2428. This the Court 15 found to be "no choice at all." Id. 16 Title III's statutory scheme is quite different. It does 17 not displace local building codes or usurp local powers. It 18 is not a building code but a Federal civil rights act that 19 sets forth accessibility standards that places of public 20 accommodation and commercial facilities must follow.22 State 21 and local building codes remain in effect to be enforced by 22 State officials. State and local codes can provide for 23 accessibility that goes beyond ADA requirements. State 24 25 22 Departures from the ADA Standards are expressly permitted where "alternative designs and technologies used will provide 26 substantially equivalent or greater access to and usability of the facility." 28 C.F.R. pt. 36, app. A, S 2.2, at 482 (1991). 27 19 28 1 officials are required neither to adopt nor to enforce the ADA 2 Standards for Accessible Design.23 3 4 C. TITLE III DOES NOT IMPROPERLY DELEGATE AUTHORITY TO 5 EITHER THE EXECUTIVE OR JUDICIAL BRANCH. Article I of the Constitution vests legislative authority 6 in the Congress. The early cases cited by IHOP stand for the 7 proposition that Congress may not abdicate its legislative 8 responsibilities altogether by authorizing the executive 9 branch to make law. This general principle, however, "does 10 not prevent Congress from seeking assistance, within proper 11 limits, from its coordinate Branches." Touby v. United 12 States, 111 S. Ct. 1752, 1756 (1991) (citing Mistretta v. 13 United States, 488 U.S. 361, 372 (1989)). So long as Congress 14 "lay[s] down by legislative act an intelligible principle to 15 which the person or body authorized to [act] is directed to 16 conform, such legislative action is not a forbidden delegation 17 of legislative power." Touby, 111 S. Ct. at 1756 (quoting 18 J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 19 (1928); see also Skinner v. Mid-America Pipeline Co., 490 U.S. 20 21 23 Title III permits, but does not require, State and 22 local governments to submit their building codes or ordinances to the Attorney General for a determination of whether they 23 meet or exceed the minimum ADA requirements. 42 U.S.C. S 12188(b)(1)(A)(ii) (Supp. II 1990). If a favorable 24 determination is reached after hearing and comment, the Attorney General will so certify. Id. In subsequent 25 enforcement proceedings, such certification "shall be rebuttable evidence that such State law or local ordinance 26 does meet or exceed the minimum requirements of this Act." Id. 27 20 28 1 212, 218-21 (1989). It is "constitutionally sufficient if 2 Congress clearly delineates the general policy, the public 3 agency which is to apply it, and the boundaries of this 4 delegated authority." American Power & Light Co. v. SEC, 329 5 U.S. 90, 105 (1946). 6 Title III meets this standard. Congress directed the 7 Attorney General to promulgate regulations to implement title 8 III. See 42 U.S.C. S 12186(b), (c) (Supp. II 1990). 9 Moreover, the statute guides the Attorney General's discretion 10 by, among other things: (1) defining who is to be considered 11 an individual with a disability under the Act, 42 U.S.C. S 12 12102(2) (Supp. II 1990); (2) listing the categories of 13 entities subject to title III as well as those that are 14 exempt, 42 U.S.C. SS 12181(2), (7) & 12187 (Supp. II 1990); 15 (3) specifying in detail the conduct that will violate the 16 statute, 42 U.S.C. S 12182 (Supp. II 1990); and (4) setting 17 forth the means for enforcement including the types of relief 18 to be afforded, 42 U.S.C. S 12188 (Supp. II 1990). Thus, 19 Congress gave the Attorney General a very complete framework 20 within which to articulate the more detailed regulatory 21 provisions. 22 The courts have upheld far more open-ended delegations of 23 authority to the executive branch. For example, in Yakus v. 24 United States, the Supreme Court upheld the Emergency Price 25 Control Act's delegation of authority to [the Administrator 26 to] "promulgate regulations fixing prices of commodities which 27 21 28 1 'in his judgment will be generally fair and equitable and will 2 effectuate the purposes of th[e] Act'." Yakus v. United 3 States, 321 U.S. 414, 420 (1944). In Railway Labor 4 Executives' Ass'n v. Skinner, the Court of Appeals ruled that 5 the Secretary of Transportation's promulgation of drug testing 6 regulations did not result from an unconstitutional delegation 7 of power when that rulemaking authority was derived only from 8 a statutory directive to promulgate "appropriate rules, 9 regulations, orders, and standards for all areas of railroad 10 safety." 934 F.2d 1096, 1100 (9th Cir. 1991) (quoting 45 11 U.S.C. S 431(a) (1988). 12 Contrary to IHOP's suggestion, the delegation of 13 rulemaking authority to the executive branch is not improper 14 because it calls for policy judgments to be made. In Yakus, 15 the Supreme Court specifically rejected just such an argument, 16 stating that in determining regulations implementing fixed 17 prices, "It is no objection [that such determinations] . . . 18 call for the exercise of judgment, and for the formulation of 19 subsidiary administrative policy within the prescribed 20 statutory framework." Yakus, 321 U.S. at 425. The Supreme 21 Court reiterated this position when it upheld Congress' 22 delegation of authority to establish sentencing guidelines in 23 Mistretta, 488 U.S. at 361. 24 Indeed, the complex task of gathering and analyzing the 25 necessary facts to develop more specific rules is particularly 26 suited to the administrative rule-making process. Prior to 27 22 28 1 issuing the regulations implementing title III, the Department 2 of Justice held four public hearings across the nation at 3 which 329 persons testified. 56 Fed. Reg. 35,544 (1991). In 4 addition, the Department solicited comments through its 5 rulemaking process and received hundreds of comments 6 containing over 10,000 pages of information. Id. The 7 Department reviewed all of these comments and took them into 8 account in formulating the final regulation. Id. at 35,545. 9 The Supreme Court has observed that it is just these sorts of 10 "intricate, labor-intensive task[s]" and the related 11 discretionary authority to draw from these efforts that are 12 particularly appropriate for delegation. Mistretta, 488 U.S. 13 at 379.24 14 15 D. TITLE III PROVIDES A SUFFICIENTLY PRECISE STANDARD OF CONDUCT AND, THEREFORE, IS NOT UNCONSTITUTIONALLY 16 VAGUE. 17 Title III of the ADA, a civil statute regulating 18 commercial conduct, can successfully be challenged as 19 unconstitutionally vague in violation of the Due Process 20 Clause only if it specifies "no standard of conduct . . . at 21 24 IHOP also argues (IHOP Mem. at 37) that Congress has 22 improperly delegated authority to the judicial branch, because the courts interpreting title III will have to decide whether 23 barrier removal is "readily achievable" or whether the provision of auxiliary aids and services is an "undue burden" 24 in any given case. This is a frivolous argument. Interpreting statutes is precisely what courts are supposed to 25 do. U.S. CONST. art. III, S 2. United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543 (1940); Hepburn v. 26 Griswold, 75 U.S. 603, 611 (1869). 27 23 28 1 all." Village of Hoffman Estates v. Flipside, Hoffman 2 Estates, Inc., 455 U.S. 489 & n.7 (1982); see Boutilier v. 3 INS, 387 U.S. 118, 121 (1967) (to violate due process, a 4 statute must be "so vague and indefinite as really to be no 5 rule or standard at all") (quoting A.B. Small Co. v. American 6 Sugar Refining Co., 267 U.S. 233, 239 (1925)). IHOP 7 mistakenly bases its vagueness argument on the higher standard 8 that is applicable only to statutes that, unlike title III, 9 prescribe criminal penalties or reach constitutionally 10 protected speech.25 As the Supreme Court ruled in Hoffman 11 Estates: 12 [E]conomic regulation is subject to a less strict vagueness test because its subject matter is often 13 more narrow, and because businesses, which face economic demands to plan behavior carefully, can be 14 expected to consult relevant legislation in advance of action. . . . Indeed the regulated enterprise 15 may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an 16 administrative process. 17 18 25 For example, IHOP relies on Keyishian v. Board of 19 Regents, which involved a challenge to a regulation allowing "treasonable or seditious" utterances to be grounds for 20 dismissal of university faculty members. 385 U.S. 589, 593 (1967). The Court emphasized the higher degree of specificity 21 required in the regulations that reach protected speech. Id. at 603-04 (citing NAACP v. Button, 371 U.S. 415, 432-33, 438 22 (1963)). Similarly, Baggett v. Bullitt, cited by IHOP, involved a statute requiring state employees to swear that 23 they were not "subversive," did not "advocate[], abet[], advise[] or teach[]" subversive activities, and were not a 24 member of a "subversive organization." 377 U.S. 360, 362 (1964). The Baggett Court also noted the increased 25 sensitivity a court must show to specificity in statutes infringing on speech. Id. at 372-73 n.10. 26 27 24 28 1 455 U.S. at 498; see also Grayned v. City of Rockford, 408 2 U.S. 108, 109 (1972); Chalmers v. City of Los Angeles, 762 3 F.2d 753, 757 (9th Cir. 1985). 4 Title III of the ADA covers millions of different kinds 5 and sizes of businesses in large and small communities all 6 across the country. Congress opted for flexible language in 7 the statute to allow for sensible and fair application to this 8 myriad group of covered entities. In addressing vagueness 9 challenges, courts have recognized the difficulties 10 legislatures face in drafting statutes -- to make them precise 11 enough to afford fair notice of the prohibited conduct, yet 12 broad enough to reach a variety of situations, many of which 13 cannot be anticipated at the time of drafting. As the Supreme 14 Court stated: 15 [M]ost statutes must deal with untold and unforeseen variations in factual situations, and the practical 16 necessities of discharging the business of government inevitably limit the specificity with 17 which legislators can spell out prohibitions . . . . 18 Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952); 19 see Colten v. Kentucky, 407 U.S. 104, 110 (1972); Fowler v. 20 Board of Educ., 819 F.2d 657, 664 (6th Cir. 1987), cert. 21 denied, 484 U.S. 986 (1987). 22 Statutes similar to and less specific than the ADA have 23 been upheld in the face of vagueness challenges. For 24 instance, in Boyce Motor Lines, the Supreme Court upheld a 25 criminal statute requiring truck drivers who carry explosives 26 or flammable liquids to avoid driving into congested 27 25 28 1 thoroughfares "so far as practicable, and where feasible." 2 342 U.S. at 339. The Boyce Motor Lines Court found the words 3 "so far as practicable, and where feasible" to be capable of 4 common understanding, even under the more rigorous standard of 5 specificity required of statutes with criminal penalties. Id. 6 at 340-42. The ADA, which uses similarly flexible language, 7 and which contains far more explanation and illustration than 8 the criminal statute at issue in Boyce, certainly satisfies 9 the more lenient standard applicable to civil statutes. 10 The statutory language of title III is itself readily 11 understandable, and the meaning of the statute is further 12 amplified by the regulation issued by the Attorney General 13 pursuant to statutory mandate. 42 U.S.C. S 12186(b) (Supp. II 14 1990); 28 C.F.R. pt. 36, at 457 (1991). Administrative 15 regulations and interpretations may provide sufficient 16 clarification for statutes that might otherwise be deemed 17 vague. United States v. Schneiderman, 968 F.2d 1564, 1568 (2d 18 Cir. 1992), cert. denied, 113 S. Ct. 1283 (1993); see, e.g., 19 Hoffman Estates, 455 U.S. at 502, 504; Fleming v. USDA, 713 20 F.2d 179, 184 (6th Cir. 1983); Rath Packing Co. v. M.H. 21 Becker, 530 F.2d 1295, 1299 (9th Cir. 1975), aff'd sub nom. 22 Jones v. Rath Packing Co., 430 U.S. 519, cert. denied, 430 23 U.S. 954, reh'g denied, 431 U.S. 925 (1977). In reviewing a 24 statute for vagueness, a Federal court must consider limiting 25 constructions proffered by an enforcing agency. Hoffman 26 27 26 28 1 Estates, 455 U.S. at 494 n.5; Ward v. Rock Against Racism, 491 2 U.S. 781, 795 (1989). 3 We demonstrate below that each of the terms challenged by 4 IHOP is sufficiently clear to meet the constitutional 5 standards based on the statutory language itself, its 6 legislative history, and the implementing regulation. The 7 preamble accompanying the regulation provides further 8 explication and, frequently, examples of the type of conduct 9 required. See 28 C.F.R. pt. 36, app. B, at 566 (1991).26 10 1. Readily Achievable Barrier Removal 11 Title III requires existing places of public 12 accommodation to remove architectural barriers to access, 13 where such removal is "readily achievable." 42 U.S.C. S 14 12182 (b) (2) (A) (iv) (Supp. II 1990). Statutes with language 15 similar to the "readily achievable" standard, with no further 16 definition of the phrase, have been upheld in the face of 17 vagueness challenges, even under the higher scrutiny required 18 for criminal statutes. See, e.g., West Virginia Mfrs. Ass'n 19 v. West Virginia, 714 F.2d 308, 314 (4th Cir. 1983) ("readily 20 21 26 The Attorney General, also pursuant to statutory mandate, has published a title III Technical Assistance 22 Manual, providing even more explanation and illustration of all of the provisions challenged by IHOP. 42 U.S.C. SS 23 12206(c)(3) & (d) (Supp. II 1990); U.S. Department of Justice, The Americans with Disabilities Act -- Title III Technical 24 Assistance Manual (1992 & Supp. 1993) ("Technical Assistance Manual"). A copy of the Technical Assistance Manual is 25 attached as Exhibit M to this memorandum. IHOP failed to consult the regulation or the Technical Assistance Manual, 26 though their existence is plain from a reading of the statute. See Zahedi Dep., at 214, 219. 27 27 28 1 visible"); United States v. Felsen, 648 F.2d 681, 683 (10th 2 Cir. 1981) ("readily attachable"), cert. denied, 484 U.S. 861 3 (1981); United States v. Catanzaro, 368 F. Supp. 450 (D. Conn. 4 1973) ("readily restor[able]"). 5 In contrast to the statutes upheld in those cases, title 6 III and its regulation provide a definition, factors to 7 consider, and many examples of the "readily achievable" 8 standard. "Readily achievable" is defined in the statute as 9 "easily accomplishable and able to be carried out without much 10 difficulty or expense." 42 U.S.C. S 12181(9) (Supp. II 1990). 11 The statute itself enumerates factors to consider when 12 determining if an action is readily achievable: 13 (A) the nature and cost of the action needed under this Act; 14 (B) the overall financial resources of the facility 15 or facilities involved in the action; the number of persons employed at such facility; the effect on 16 expenses and resources, or the impact otherwise of 17 such action upon the operation of the facility; (C) the overall financial resources of the covered 18 entity; the overall size of the business of a covered entity with respect to the number of its 19 employees; the number, type, and location of its facilities; and 20 (D) the type of operation or operations of the 21 covered entity, including the composition, structure, and functions of the workforce of such 22 entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities 23 in question to the covered entity. 24 Id.27 25 27 The legislative history contains useful guidance for 26 construing the "readily achievable" standard. The Senate Report, for example, points out that it is a lower standard 27 28 28 1 In addition to the statutory explication and the 2 legislative history, the Federal regulation further elucidates 3 the term "readily achievable" by adding other factors to 4 consider.28 In addition, and perhaps most significantly, the 5 regulation lists 21 examples of barrier removal likely to be 6 "readily achievable" in many circumstances.29 Finally, the 7 preamble to the regulation, published with the regulation, 8 provides even more analysis and explanation: 9 than the "undue burden" standard in title III and the "undue 10 hardship" standard in title I, which derived from section 504 of the Rehabilitation Act of 1973. S. Rep. No. 116, 101st 11 Cong., 1st Sess. 65 (1989) ("Senate Report"). The Report further distinguishes "readily achievable" from "readily 12 accessible," a term used in another part of the statute. Id. The Report also lists examples of the types of changes 13 Congress believes would be readily achievable, including specific examples for small stores and restaurants -- 14 rearranging tables and chairs, installing small ramps, grab bars in restrooms, "and other such minor adjustments and 15 additions." Id. at 66. 16 28 The additional factors listed in the regulation are: 17 [1] legitimate safety requirements that are necessary for safe operation, including crime prevention measures; 18 [2] overall financial resources of any parent corporation or 19 entity; the overall size of the parent corporation or entity with respect to the number of its employees; the 20 number, type, and location of its facilities; and 21 [3] the type of operation or operations of any parent corporation or entity, including the composition, 22 structure, and functions of the workforce of the parent corporation or entity. 23 28 C.F.R. S 36.104, at 460-61 (1991) (definition of "readily 24 achievable"). 25 29 Among the examples are: installing ramps, repositioning shelves and telephones, installing accessible 26 door hardware, installing grab bars in toilet stalls. See id. S 36.304 (b), at 466, & app. B, at 576-77. 27 29 28 1 The list of factors . . . reflects the congressional intention that a wide range of factors be considered 2 in determining whether an action is readily achievable. It also takes into account that many 3 local facilities are owned or operated by parent corporations or entities that conduct operations at 4 many different sites. This section makes clear that, in some instances, resources beyond those of 5 the local facility where the barrier must be removed may be relevant in determining whether an action is 6 readily achievable. One must also evaluate the degree to which any parent entity has resources that 7 may be allocated to the local facility. 8 28 C.F.R. S 36.104, app. B, at 576-77 (1991) (definition of 9 "readily achievable"). 10 The preamble to the title III regulation also explains 11 that the ADA uses a general standard for barrier removal 12 because a more specific financial standard would contravene 13 the goals of the ADA: 14 [T]he Department has declined to establish in the final rule any kind of numerical formula for 15 determining whether an action is readily achievable. It would be difficult to devise a specific ceiling 16 on compliance costs that would take into account the vast diversity of enterprises covered by the ADA's 17 public accommodations requirements and the economic situation that any particular entity would find 18 itself in at any moment. 19 Id. S 36.104, app. B, at 577.30 20 The "readily achievable" standard for barrier removal in 21 existing facilities is thus intended to be flexible so as not 22 to be unduly burdensome for businesses covered by title III. 23 It is clear, however, that this standard, as defined in the 24 25 30 See also Technical Assistance Manual at 29-32 26 (definition, factors, and examples of "readily achievable barrier removal"). 27 30 28 1 statute and the regulation, is sufficiently precise to 2 withstand constitutional scrutiny. 3 2. Alternatives to Barrier Removal 4 The ADA provides that where barrier removal is not 5 readily achievable, a covered entity must make its goods or 6 services available through "alternative methods if such 7 methods are readily achievable." 42 U.S.C. S 8 12182(b)(2)(A)(v) (Supp. II 1990). IHOP asserts that the 9 phrase "alternative methods" is vague because "readily 10 achievable" is vague and the two are "inextricably attached," 11 and because Congress did not define "alternative methods" in 12 its debates or reports. 13 First, as we have demonstrated above, "readily 14 achievable" is not unconstitutionally vague. In addition, the 15 legislative history, the title III regulation, and the 16 preamble all provide specific and easily understood examples 17 of appropriate alternatives to barrier removal -- providing 18 curb service or home delivery, coming to the door of the 19 facility to handle transactions, serving beverages at a table 20 for persons with disabilities where a bar is inaccessible, 21 providing assistance to retrieve items from inaccessible 22 shelves, relocating services and activities to accessible 23 locations. Senate Report at 66; 28 C.F.R. S 36.305(b), at 24 25 26 27 31 28 1 467-68, app. B, at 599 (1991).31 As these examples make 2 clear, title III's "alternative methods" requirement allows 3 creativity and flexibility in providing access to people with 4 disabilities, but is not unconstitutionally vague. 5 3. Reasonable Modifications of Policies and Procedures 6 Public accommodations are required to: 7 make reasonable modifications in policies, practices, or procedures, when such modifications 8 are necessary to afford such goods, services . . . to individuals with disabilities, unless the entity 9 can demonstrate that making such modifications would fundamentally alter the nature of such goods, 10 services, facilities, privileges, advantages, or accommodations being offered. 11 42 U.S.C. S 12182(b)(2)(A)(ii) (Supp. II 1990). IHOP argues 12 that the phrases "reasonable modifications" and "fundamentally 13 alter" are unconstitutionally vague. 14 Like the readily achievable standard for barrier removal, 15 the reasonable modification requirement for policies and 16 procedures was designed to be flexible so that it could apply 17 in a sensible and fair way to many different kinds of 18 situations. The term "reasonable" has been recognized by the 19 courts as an easily understood phrase. See, e.g., Bandini 20 Petroleum Co. v. Superior Court of Cal., 284 U.S. 8, 18 (1931) 21 (statute prohibiting "unreasonable waste of gas" upheld, with 22 acknowledgment of the need for flexibility in applying the 23 statute); Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 24 250 (1922) (Court found "unjust and unreasonable" rent to be 25 26 31 See also the Technical Assistance Manual at 37-42 (describing "alternative methods"). 27 32 28 1 "as definite as the 'just compensation' standard adopted in 2 the Fifth Amendment . . . and therefore . . . sufficiently 3 definite to satisfy the Constitution"); Harris v. Lukhard, 733 4 F.2d 1075, 1080 (4th Cir. 1984) ("reasonable effort" and 5 "unreasonable loss" found sufficiently precise). 6 The title III regulation and preamble provide several 7 illustrations of "reasonable modifications." For example, 8 stores in which all of the checkout aisles are not accessible 9 would be required to ensure that an adequate number of 10 accessible checkout aisles are left open at all times. See 28 11 C.F.R. S 36.302(d), at 465 (1991). Similarly, facilities that 12 do not permit entry to animals would be required to modify 13 such polices with regard to service animals used by people 14 with disabilities. Id. S 36.302(c), at 465. 15 The concept of "fundamental alteration" is not confusing 16 or complex. Nor is it new with the ADA. The term was first 17 articulated in Southeastern Community College v. Davis, 442 18 U.S. 397 (1979), a decision construing section 504 of the 19 Rehabilitation Act of 1973, which prohibits discrimination on 20 the basis of disability in federally assisted or operated 21 programs or activities. In Davis, the Court concluded that 22 programs did not discriminate if they failed to make 23 accommodations that would "fundamentally alter" the nature of 24 the program. Id. at 409. The preamble to the title III 25 regulation also contains an explanation of fundamental 26 alteration: 27 33 28 1 The rule does not require modifications to the legitimate areas of specialization of service 2 providers. Section 36.302(b) provides that a public accommodation may refer an individual with a 3 disability to another public accommodation, if that individual is seeking, or requires, treatment or 4 services outside of the referring public accommodation's area of specialization, and if, in 5 the normal course of its operations, the referring 6 public accommodation would make a similar referral for an individual without a disability who seeks or 7 requires the same treatment or services. For example, it would not be discriminatory for a 8 physician who specializes only in burn treatment to refer an individual who is deaf to another physician 9 for treatment of an injury other than a burn injury. To require a physician to accept patients outside of 10 his or her specialty would fundamentally alter the nature of the medical practice and, therefore, not 11 be required by this section. 12 28 C.F.R. pt. 36, app. B, at 592 (1991); see also Senate 13 Report at 62-63; Technical Assistance Manual at 22-24, 27, and 14 Supp. 1993 at 4 (explanation of reasonable modifications and 15 fundamental alteration). As the regulation and the 16 corresponding explanations in the preamble make clear, then, 17 the terms "reasonable modifications" and "fundamental 18 alteration" are readily understandable and are not 19 unconstitutionally vague. 20 4. Most Integrated Setting Appropriate 21 Title III requires covered entities to afford their goods 22 and services to an individual with a disability "in the most 23 integrated setting appropriate to the needs of the 24 individual." 42 U.S.C. S 12182(b)(1)(B) (Supp. II 1990). 25 IHOP asserts that this requirement is unconstitutional, 26 although it fails to explain why it believes so. 27 34 28 1 The statute's language is easily understandable, and 2 obviously indicates that a public accommodation must serve 3 persons with disabilities integrated among other persons, as 4 long as the integration serves the needs of the person with 5 the disability. In addition, once again, the title III 6 regulation provides illustration of this provision. The 7 preamble to the title III regulation contains two pages of 8 examples and explanation, including the following: 9 The ADA recognizes that the provision of goods and services in an integrated manner is a fundamental 10 tenet of nondiscrimination on the basis of disability. Providing segregated accommodations and 11 services relegates persons with disabilities to the status of second-class citizens. For example, it 12 would be a violation of this provision to require persons with mental disabilities to eat in the back 13 room of a restaurant or to refuse to allow a person with a disability the full use of a health spa 14 because of stereotypes about the person's ability to participate. 15 28 C.F.R. pt. 36, app. B, at 581 (1991) (discussing the 16 "integrated settings" requirement of regulation S 36.203).32 17 The legislative history further illustrates this provision, 18 explaining, for example, that the "integrated settings" 19 provision is intended to prevent segregation based on fears 20 and stereotypes about persons with disabilities. H.R. Rep. 21 No. 485, 101st Cong., 2d Sess., pt. II, at 102 (1990), 22 reprinted in 1990 U.S.C.C.A.N. 327, 385 ("House Report, Pt. 23 24 25 32 See also Technical Assistance Manual at 14-15 26 (illustrating integrated and separate programs designed to meet the needs of persons with disabilities). 27 35 28 1 II"); see also id. pt. III, at 56-57 (1990), reprinted in 1990 2 U.S.C.C.A.N. 327, 479-80 ("House Report, Pt. III"). 3 5. Undue Burden 4 Title III requires public accommodations to provide 5 auxiliary aids and services necessary to afford its services 6 to persons with disabilities, unless to do so would pose an 7 "undue burden" to the covered entity or would "fundamentally 8 alter" the nature of its goods or services. 42 U.S.C. 9 S 12181(b)(2)(A)(iii) (Supp. II 1990). IHOP claims that the 10 term "undue burden" is unconstitutionally vague.33 11 The legislative history explains that "undue burden" is 12 analogous to the phrase "undue hardship" used in the 13 employment title of ADA and is derived from section 504 of the 14 Rehabilitation Act of 1973, 29 U.S.C. S 794 (1973). Senate 15 Report at 63; see also Southeastern Community College v. 16 Davis, 442 U.S. 397, 412 (1979). The legislative history also 17 explains, as noted above, that this is a higher standard than 18 "readily achievable." 19 "Undue burden" is defined in the regulation as a 20 "significant difficulty or expense." 28 C.F.R. S 36.104, at 21 461 (1991) (definition of "undue burden"). The regulation 22 lists factors for determining whether a particular action will 23 create an undue burden; these are the same as those to be used 24 25 26 33 IHOP also challenges the term "fundamental alteration," which is discussed earlier. 27 36 28 1 in assessing whether an action is "readily achievable." Id. 2 The preamble clarifies that: 3 "[R]eadily achievable" is a lower standard than "undue burden" in that it requires a lower level of 4 effort on the part of the public accommodation. 5 and 6 [A] public accommodation is not required to provide any particular aid or service that would result in 7 either a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, 8 or accommodations offered or in an undue burden. Both of these statutory limitations are derived from 9 caselaw under section 504 [of the Rehabilitation Act of 1973] and are to be applied on a case-by-case 10 basis . . . . 11 Id., app. B, 576, 595 (discussing definition of "undue burden" 12 in S 36.104).34 13 Language similar to "undue burden" has been upheld, even 14 where the statute provided no definition of the term and no 15 list of factors to consider in making the determination. See 16 Jackson Court Condominiums, Inc. v. City of New Orleans, 665 17 F. Supp. 1235, 1242 (E.D. La. 1987), aff'd, 874 F.2d 1070 (5th 18 Cir. 1989) (rejecting a vagueness challenge to a zoning 19 ordinance that allowed for variances upon a showing of "undue 20 hardship"). 21 22 23 24 34 The regulation is supplemented by discussion in the 25 Technical Assistance Manual, which provides explanations of both "undue burden" and "fundamental alteration." See 26 Technical Assistance Manual at 27-28. 27 37 28 1 6. Full and Equal Enjoyment and Opportunity to 2 Participate 3 Title III's general prohibition against discrimination 4 provides as follows: 5 No individual shall be discriminated against on the basis of disability in the full and equal enjoyment 6 of the goods, services, facilities, privileges, advantages, or accommodation of any place of public 7 accommodation . . . . 8 42 U.S.C. S 12182 (a) (Supp. II 1990). IHOP claims that the 9 phrase "full and equal enjoyment" is impermissibly vague. 10 The challenged phrase is a simple concept commonly used 11 in civil rights statutes.35 Affording "full and equal 12 enjoyment" clearly comprehends that persons with disabilities 13 are not to be provided only a portion of the goods and 14 services provided to others or lesser goods and services. The 15 legislative history explains that 16 'Full and equal enjoyment' does not encompass the notion that persons with disabilities must achieve the identical 17 result or level of achievement of nondisabled persons, but does mean that persons with disabilities must be 18 afforded equal opportunity to obtain the same result. 19 Senate Report at 60. Moreover, the next subsection of the 20 statute further defines the general rule. Entitled 21 35 See, e.g., civil Rights Act of 1964, 42 U.S.C. S 2000a(a) (1988) ("All persons shall be entitled to the full 22 and equal enjoyment of the goods . . . of any place of public accommodation . . . ."); Fair Housing Act, 42 U.S.C. S 23 3604(f)(3)(B) (1988) (discrimination includes failure to modify policies where "necessary to afford such person equal 24 opportunity to use and enjoy a dwelling"); id. S 3631 (rendering punishable retaliation against anyone 25 "participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate"); 26 Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984) (interpreting "full and equal enjoyment"). 27 28 38 1 "Construction," it enumerates categories of actions that 2 constitute discrimination "in the full and equal enjoyment" of 3 goods and services.36 4 IHOP also challenges as vague one of the subsections of 5 the general rule, which provides: 6 (i) DENIAL OF PARTICIPATION.--It shall be discriminatory to subject an individual or class of individuals on the 7 basis of a disability or disabilities of such individual or class, . . . to a denial of the opportunity of the 8 individual . . . to participate in or benefit from the goods, services, facilities, privileges, advantages, or 9 accommodations of an entity. 10 42 U.S.C. SS 12182 (b)(1)(A)(i) (Supp. II 1990) (emphasis added 11 to specific terms IHOP has claimed are impermissibly vague). 12 Similar to the general rule cited above, this provision is 13 simple language, capable of common understanding. The 14 prohibition on denying individuals with disabilities an 15 16 36 Those categories of discrimination are: 17 (1) denying to a person with a disability the opportunity to participate in or benefit from the goods, services, 18 facilities, privileges, advantages, or accommodations offered by a place of public accommodation; 19 (2) affording a person with a disability an opportunity 20 to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is 21 not equal to that afforded to other individuals; 22 (3) providing an individual with a disability with a good, service, facility, privilege, advantage, or 23 accommodation that is different or separate from that provided to other individuals, unless such action is 24 necessary to provide the individual with a good, service, facility, privilege, advantage or accommodation, or other 25 opportunity that is as effective as that provided to others. 26 42 U.S.C. S 12182(b)(1)(A)(i) - (iii) (Supp. II 1990). 27 28 39 1 "opportunity to participate in or benefit from" the goods or 2 services of a covered entity obviously means that persons with 3 disabilities are not to be excluded from receiving the goods 4 or services of a place of public accommodation. 5 The title III regulation contains further explanation and 6 examples. The preamble explains that denial of participation 7 means: 8 A public accommodation may not exclude persons with disabilities on the basis of disability for reasons 9 other than those specifically set forth in this part. For example, a public accommodation cannot 10 refuse to serve a person with a disability because its insurance company conditions coverage or rates 11 on the absence of persons with disabilities. 12 28 C.F.R. S 36.202, app. B, at 580 (1991) (setting forth general forms of discrimination prohibited by S 36.202).37 13 14 E. TITLE III OF THE ADA DOES NOT EFFECT AN 15 UNCONSTITUTIONAL TAKING WITHOUT JUST COMPENSATION. 16 The Fifth Amendment to the Constitution prohibits the 17 Federal government from taking private property "for public 18 use, without just compensation." U.S. CONST. amend. V. The 19 ADA requirements challenged by IHOP do not violate this 20 constitutional command. An unconstitutional taking occurs 21 only where a statute or ordinance "does not substantially 22 advance legitimate State interests, or denies the owner 23 24 37 See also Technical Assistance Manual at 13 ("Just as under the Civil Rights Act of 1964 a restaurant cannot refuse 25 to admit an individual because of his or her race, under the ADA, it cannot refuse to admit an individual merely because he 26 or she has a disability"). 27 28 40 1 economically viable use of the land." Agins v. City of 2 Tiburon, 447 U.S. 255, 260 (1979); See also Hodel v. Virginia 3 Surface Mining and Reclamation Ass'n, 452 U.S. 264, 296-97 4 (1981); Furey v. City of Sacramento, 780 F.2d 1448, 1457 (9th 5 Cir. 1986); Trustees for Alaska v. EPA, 749 F.2d 549, 559 (9th 6 Cir. 1984). The Supreme Court has repeatedly stated that such 7 an analysis must be made on an individual ad hoc factual 8 basis. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 9 590, 595 (1962). 10 Title III of the ADA requires existing places of public 11 accommodation, such as IHOP, to remove architectural barriers 12 that impede or prevent access to such facilities by persons 13 with disabilities, as well as communications barriers that are 14 structural in nature, to the extent that such removal is 15 "readily achievable," which means "able to be carried out 16 without much difficulty or expense." 42 U.S.C. SS 12182, 17 12181(9) (Supp. II 1990). As so defined, the "readily 18 achievable" standard of performance can never so diminish or 19 destroy the value of a covered entity's property, nor have 20 such a grave economic impact on property, as to ever 21 constitute an unconstitutional taking without just 22 compensation within the meaning of the Fifth Amendment. 23 The ADA was designed to strike a balance that looks to 24 the future -- all new construction of and alterations to 25 places of public accommodation are required to comply strictly 26 with the ADA Standards for Accessible Design. 42 U.S.C. SS 27 28 41 1 12183, 12186(b), 12186(c) (Supp. II 1990); 28 C.F.R. 36.406, 2 at 474 (1991). This obligation is imposed without regard to 3 cost factors because Congress found that incorporating 4 accessibility features at the design stage for alterations and 5 new construction added little to the overall cost. Senate 6 Report at 89. However, Congress recognized that retrofitting 7 existing facilities to improve accessibility could be 8 expensive, sometimes extraordinarily so. Id. at 65. 9 Accordingly, Congress imposed the "readily achievable" 10 standard, which explicitly limits an entity's obligation to 11 remove barriers based on the cost of retrofitting and the 12 resources of the entity involved. 42 U.S.C. S 12181 (9) (Supp. 13 II 1990). 14 Businesses are thus required to remove barriers to access 15 in existing facilities in accordance with their different 16 resources, capabilities, and circumstances.38 The "readily 17 achievable" standard was designed to require "minimal 18 investment with a potential return of profit from use by 19 disabled patrons, often more than justifying the small 20 expense." Senate Report at 66. 21 IHOP's argument regarding an unconstitutional taking 22 reflects a total misunderstanding of the statute. IHOP's 23 24 38 The title III regulation lists 21 examples of steps that are likely to be readily achievable in many 25 circumstances. None of these actions is likely to have a significant adverse effect on the property or the income of 26 most existing public accommodations. See 28 C.F.R. S 36.304(b), at 466 (1991). 27 28 42 1 analysis proceeds from a factual premise that compliance with 2 the barrier removal requirement would absolutely require from 3 $32,500 to $104,500 in renovations to restrooms that could 4 also cause the loss of approximately twenty seating places for 5 customers. (IHOP Mem. at 7-8). Although IHOP does not provide 6 information about its resources, IHOP claims that such costs 7 will have a "tremendous" economic impact and will "destroy" 8 its reasonable business expectations (IHOP Mem. at 39-40). 9 This Court must eventually determine, based on a full 10 development of the record, whether IHOP's cost estimates and 11 assessments of impact on its business are accurate. If 12 barrier removal would in fact have a dramatic deleterious 13 effect on IHOP's business, such modifications would not be 14 required under the "readily achievable" standard.39 15 Because IHOP's argument is premised on a misunderstanding 16 of title III's legal requirements, its contention that title 17 III effects an unconstitutional taking without compensation is 18 fundamentally flawed as well. 19 In a landmark case on takings, the Supreme Court set 20 forth factors to be considered when determining whether an 21 unconstitutional regulatory taking has occurred: 22 The economic impact of the regulation on the claimant and, particularly, the extent to which the 23 regulation has interfered with distinct investment- 24 39 We take no position on the accuracy of IHOP's cost 25 estimates or assessments of the impact on its business. IHOP failed to respond to the United States' discovery requests 26 seeking information about IHOP's financial circumstances. See Zahedi Dep. at 289-91, 295-99. 27 28 43 1 backed expectations are, of course, relevant considerations. So, too, is the character of the 2 governmental action. 3 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 4 (1978). While courts do not always explicitly rely on the 5 entire Penn Central test, the factors it sets forth are 6 accepted as those appropriately considered in a regulatory 7 takings analysis. See Lucas v. South Carolina Coastal 8 Council, 112 S. Ct. 2886, 2895 n.8 (1992). We examine title 9 III of the ADA in light of each of these factors. 10 1. To constitute a taking, the economic impact of a 11 challenged statute must be extreme, to the point of denying 12 the claimant any economically viable use of the property. 13 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 14 126 (1985). A showing that there is merely some adverse 15 economic impact is inadequate.40 As Justice Brennan stated, 16 Government regulation - by definition - involves the adjustment of rights for the public good. Often 17 this adjustment curtails some potential for the use or economic exploitation of private property. To 18 require compensation in all such circumstances would effectively compel the government to regulate by 19 purchase. 20 Andrus v. Allard, 444 U.S. 51, 65 (1979); Pennsylvania Coal 21 Co. v. Mahon, 260 U.S. 393, 412 (1922). 22 The barrier removal requirement in title III can never 23 have so severe an impact as to deprive a covered entity of any 24 25 40 IHOP bears the burden of proof on this issue. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 26 485 (1987); Lake Nacimiento Ranch v. County of San Luis Obispo, 841 F.2d 872, 877 (9th Cir. 1987). 27 44 28 1 economically viable use of its property because, as we have 2 explained, barrier removal is governed by the flexible 3 "readily achievable" standard -- expressly tied to the costs 4 involved in making changes and the resources of the business. 5 The statute simply does not require a covered entity to take 6 steps that are so costly or difficult as to cause a 7 devastating economic impact. House Report, pt. III, at 61-62. 8 As discussed, IHOP misconstrues title III's requirements, 9 but even in its best light, IHOP's argument is inadequate to 10 demonstrate that a taking has occurred. In Pennsylvania Coal 11 Co., the Supreme Court found that a statute forbidding the 12 removal of anthracite coal, in instances where such removal 13 would cause subsidence of the property above the coal mines, 14 resulted in an unconstitutional taking because it would 15 destroy the "previously existing rights" of a coal company 16 that owned only the right to the coal. 260 U.S. at 413. 17 Among the reasons for the Court's decision was its finding 18 that the company owned only the right to mine coal and such 19 mining had been made "commercially impracticable" by the 20 statute.41 21 In this case, IHOP asserts only that accessibility 22 modifications will be expensive and that they may result in 23 41 Compare Pennsylvania Coal Co. with the more recent 24 decision in Keystone Bituminous Coal, in which the Supreme Court upheld a similar coal mining restriction because it 25 found that the restriction furthered a public interest ("the public interest in health, the environment, and the fiscal 26 integrity of the area") and did not make use of the petitioners land economically inviable. 480 U.S. at 474. 27 45 28 1 some lost office and dining space. Nowhere does IHOP claim 2 that the existing operations of the restaurant would no longer 3 be financially viable. A taking does not occur just because a 4 property holder is prohibited from using his or her property 5 in the manner that would be most profitable. Lai v. City and 6 County of Honolulu, 841 F.2d 301, 303 (9th Cir. 1988) (no 7 taking found when creation of scenic easement prevented 8 construction of a high-rise condominium); Rymer v. Douglas 9 County, 764 F.2d 796, 801 (11th Cir. 1985) (no taking occurred 10 when owners of plot of land approved and purchased for 11 residential use were denied permission to install septic 12 tanks, making residential use impossible); see also Goldblatt, 13 369 U.S. at 592. 14 As these cases make clear, requiring property owners to 15 discontinue or substantially alter their intended use of the 16 property affected does not amount to an unconstitutional 17 taking. A taking occurs only when the government makes all 18 uses of the property economically infeasible. Title III has 19 no such impact. The barrier removal obligation in title III 20 does not require any action that would force IHOP to abandon 21 its operations or make such operations economically 22 infeasible. 23 2. Title III's barrier removal requirement does not 24 cause an adverse impact on reasonable investment-backed 25 expectations sufficient to effect an unconstitutional taking. 26 As the Supreme Court has stated, 27 46 28 1 [L]oss of future profits - unaccompanied by any physical property restriction - provides a slender reed upon which 2 to rest a takings claim. . . . [P]erhaps because of its very uncertainty, the interest in anticipated gains has 3 traditionally been viewed as less compelling than other property-related interests. 4 Andrus, 444 U.S. at 66; Park Ave. Tower Assocs. v. City of New 5 York, 746 F.2d 135, 139 (2d Cir. 1984) (quoting Andrus, 444 6 U.S. at 66), see also Usery v. Turner Elkhorn Mining Co., 428 7 U.S. 1, 14-20 (1976). 8 IHOP argues that the ADA adversely affects its reasonable 9 investment-backed expectations because the statute applies to 10 it as an existing business operation that complied fully with 11 all applicable laws and regulations at the time of 12 construction. This "existing facility" argument finds no 13 support in the case law. Takings do not occur simply because 14 legislation applies to existing operations that have 15 previously been operating in a legal manner. Everard's 16 Breweries v. Day, 265 U.S. 545 (1924); Jacob Ruppert, Inc. v. 17 Caffey, 251 U.S. 264 (1920).42 This is true even if the new 18 law frustrates all of the owner's previous and intended uses 19 20 21 42 This does not mean, of course, that in instances where government completely frustrates reasonable investment-backed 22 expectations a taking will not be found to occur. This is especially true where government guarantees have created 23 expectations which are then crushed by subsequent legislative changes. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 985 24 (1984) (amendments to Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. S 136 (1988), which required 25 disclosure of health, safety, and environmental data to others in industry, amounts to an unconstitutional taking of trade 26 secrets); Pennsylvania Coal Co., 260 U.S. 393. 27 47 28 1 for the property, as long as the property remains economically 2 viable for some purpose.43 3 Here, of course, the ADA effects no change at all in the 4 use of any facility covered by title III. Restaurants, like 5 IHOP, can continue to operate as restaurants. Indeed, it is 6 anticipated that covered businesses will not only continue to 7 operate as they have, but will become more profitable as they 8 reach new customers by making their facilities accessible to 9 the forty-three million persons with disabilities. Senate 10 Report at 66. 11 3. The ADA also withstands scrutiny under the third Penn 12 Central factor -- "the character of the government action." A 13 takings violation does not occur if the statutory requirement 14 at issue advances the underlying purpose of the statute.44 15 The barrier removal requirement in title III advances the 16 stated purposes of the ADA -- 17 18 43 For example, in Andrus, the Supreme Court rejected claims that the Eagle Protection Act and the Migratory Bird 19 Treaty Act effected a taking even though they prohibited all of the uses originally intended for the products made from the 20 protected birds. 444 U.S. 51. Instead, the Court was satisfied that the claimants had not proven that they even 21 unable to make any profitable use of the items. Id. at 66. 22 44 See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), in which the Supreme Court held that a taking 23 without compensation had occurred where owners of beach front property who wished to build homes were required to grant a 24 public easement across the property. The Court found no evidence that the easement would further the stated rationale 25 for the requirement -- to alleviate the effect the homes would have on the view of the beach from the public thoroughfare. 26 See also Commercial Builders v. Sacramento 941 F.2d 872 (9th Cir. 1991). 27 48 28 1 (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against 2 individuals with disabilities; [and] 3 (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against 4 individuals with disabilities. 5 42 U.S.C. S 12101 (b)(1) & (2) (Supp. II 1990). 6 Congressional concern over the deleterious effects of 7 discrimination against people with disabilities is clearly set 8 forth in the legislative history. 9 The large majority of people with disabilities do not go to movies, do not go to the theater, do not 10 go to see musical performances, and do not go to sports events. A substantial minority of persons 11 with disabilities never go to a restaurant, never go to a grocery store, and never go to a church or 12 synagogue. . . . The extent of non-participation of individuals with disabilities in social and 13 recreational activities in [sic] alarming. 14 Senate Report at 11 (citing the findings of a recent Lou 15 Harris poll summarized by the National Council on Disability). 16 Congressional hearings revealed that the "lack of 17 physical access to facilities" was a major cause of the 18 exclusion of individuals with disabilities. Senate Report at 19 11. With respect to existing facilities, Congress realized 20 that it would be "appropriate to require modest changes" to 21 make such facilities accessible to people with disabilities. 22 Id. The barrier removal requirements at issue here were the 23 result. Plainly, they serve the purposes of the statute.45 24 45 There is no merit to IHOP's argument that the ADA 25 constitutes a taking because it requires existing facilities to make modifications for the benefit of a specific group 26 (people with disabilities) (IHOP Mem. at 40). The Supreme Court has rejected this type of takings argument in Heart of 27 49 28 1 F. TITLE III IS NOT RETROACTIVE LEGISLATION. 2 Title III mandates changes in the way existing places of 3 public accommodation do business, but it imposes no liability 4 for pre-Act conduct and, accordingly, is not retroactive and 5 does not violate the Due Process Clause. "The determination 6 of whether a statute's application in a particular situation 7 is prospective or retroactive depends upon whether the conduct 8 that allegedly triggers the statute's application occurs 9 before or after the law's effective date." McAndrews v. Fleet 10 Bank, 989 F.2d 13, 16 (1st Cir. 1993); see also FDIC v. 11 Faulkner, 991 F.2d 262 (5th Cir. 1993), reh'q denied, Jun. 30, 12 1993 WL. 13 The title III provisions applicable to existing places of 14 public accommodation impose no liability or penalty for 15 conduct occurring prior to the effective date of the 16 17 18 Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), 19 involving a challenge to title II of the Civil Rights Act of 1964, which is the model for title III. As Justice White 20 stated in Connolly v. Pension Benefit Guarantee Corp., when considering such a challenge to a new pension benefit 21 regulation, 22 In the course of regulating commercial and other human affairs, Congress routinely creates burdens 23 for some that directly benefit others. . . . Given the propriety of the governmental power to regulate, 24 it cannot be said that the Taking Clause is violated whenever legislation requires one person to use his 25 or her assets for the benefit of another. 26 475 U.S. 211, 222-23 (1986); see Elkhorn, 428 U.S. at 14-20; see also Miller v. Schoene, 276 U.S. 272, 279 (1928). 27 50 28 1 statute.46 An existing restaurant facility, for example, 2 cannot be held liable under title III for having had doorways 3 too narrow for persons who use wheelchairs to enter or for 4 having refused to serve persons with mental retardation, prior 5 to January 26, 1992. Liability can attach under title III 6 only if such a facility has failed, after that date, to widen 7 the doorway where it would be readily achievable to do so, or 8 to continue to refuse service to persons with mental 9 retardation. Title III does not alter the legal consequences 10 of conduct occurring before the statute's effective date and 11 it is, therefore, not retroactive legislation.47 12 Title III is not retroactive, nor does it contravene the 13 Due Process Clause, as IHOP seems to suggest, simply because 14 it imposes new obligations on existing businesses. To accept 15 16 46 The ADA was signed into law on July 26, 1990. The title III provisions applicable to existing facilities took 17 effect 18 months later, on January 26, 1992. See 42 U.S.C. S 12181 note (Supp. II 1990). Small businesses could not be 18 sued for title III violations until even later. Id. The period between enactment and effective date was designed to 19 give covered businesses sufficient time to become aware of their new obligations under the ADA and to undertake barrier 20 removal and operational changes necessary to come into compliance. 21 47 Indeed, "statutes affecting substantive rights and 22 liabilities are presumed to have only prospective effect," Bennett v. New Jersey, 470 U.S. 632, 639 (1985), while 23 procedural and remedial changes in the law are generally given retroactive effect, Bradley v. School Board of Richmond, 416 24 U.S. 696 (1974). Substantive provisions of titles I (employment) and II (State and local government programs and 25 services) of the ADA have been found not to be retroactive. Barraclough v. ADP Automotive Claims Servs., Inc., 818 F. 26 Supp. 1310, 1312 (N.D. Cal. 1993); Dean v. Thompson, No. 92 C 20388, 1993 WL 169734 at *4 (N.D. Ill. May 6, 1993). 27 51 28 1 IHOP's due process theory would absolutely paralyze Congress 2 in any effort to regulate in the commercial arena; it could 3 only act with respect to new businesses coming into existence. 4 The Due Process Clause does not so drastically circumscribe 5 congressional power. IHOP, and other existing businesses, 6 have no due process right to continue to do business 7 unencumbered by new obligations that may be imposed by 8 Congress. 9 This point is well illustrated by Federal Housing 10 Administration v. Darlington, Inc., 358 U.S. 84 (1958), reh'q 11 denied, 358 U.S. 937 (1959). In that case the Court struck 12 down a due process challenge to a statute which directed the 13 Federal Housing Administration ("FHA") to insure mortgages 14 only for strictly residential (not transient) housing. The 15 Court held that the requirement could be constitutionally 16 applied to an existing apartment facility with some transient 17 units that was already mortgaged under the FHA program. The 18 Court noted that the amended statute was only prospective in 19 effect as it did not penalize the owner for past conduct. 20 Furthermore, as the Court stated: 21 [F]ederal regulation of future action based upon rights previously acquired by the person regulated is not 22 prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted 23 legislation, the fact that its provisions limit or interfere with previously acquired rights does not 24 condemn it. 25 358 U.S. at 91 (quoting Fleming v. Rhodes, 331 U.S. 100, 107 26 (1947)); see also United States v. Manufacaturers Nat'l Bank, 27 52 28 1 363 U.S. 194, 200 (1960); Cox v. Hart, 260 U.S. 427, 435 2 (1922). 3 4 V. CONCLUSION 5 For the foregoing reasons, the Court should enter an 6 order denying IHOP's motion for summary judgment, granting the 7 United States' cross-motion for summary judgment on IHOP's 8 counterclaim, and declaring that title III of the ADA: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 53 28 1 A. is a constitutional exercise of Congress' power under the Commerce Clause that properly reaches 2 restaurants, including IHOP; 3 B. does not intrude on State sovereignty in violation of the Tenth Amendment; 4 C. is not an unconstitutional delegation of 5 legislative authority to the executive or judicial branch; 6 D. is not unconstitutionally vague in violation of 7 the Fifth Amendment; 8 E. does not constitute an unconstitutional taking of property without compensation in violation of the Due 9 Process Clause; and 10 F. does not apply retroactively in violation of the Due Process Clause. 11 12 Respectfully submitted, 13 14 JAMES P. TURNER 15 Acting Assistant Attorney General 16 17 18 19 By: 20 JAMES W. BRANNIGAN, JR. JOAN A. MAGAGNA United States Attorney BEBE NOVICH 21 JOHN R. NEECE JOSEPH C. RUSSO Assistant U.S. Attorney Attorneys 22 Chief, Civil Division Public Access Section United States Courthouse Civil Rights Division 23 940 Front Street U.S. Department of Justice Room 5-N-19 P.O. Box 66738 24 San Diego, Ca. 92189 Washington, D.C. 20035-6738 (619) 557-5662 (202) 307-0663 25 26 27 54 28 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 94-55030 THEODORE A. PINNOCK, Plaintiff-Appellee v. INTERNATIONAL HOUSE OF PANCAKES; MAJID ZAHEDI, Defendants-Appellants and NADER AFSHAR; DOES 1 THROUGH 10, INCLUSIVE, Defendants UNITED STATES OF AMERICA Intervenor-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA MOTION OF UNITED STATES FOR REMAND TO DETERMINE WHETHER FEDERAL LAW CLAIMS ARE MOOT Appellee United States of America respectfully moves the Court to remand this case to permit the district court to determine whether events occurring after the entry of judgment below have mooted the federal law claims. In support of this motion, the United States submits the following information: 1. On September 9, 1992, plaintiff Theodore A. Pinnock filed this action under Title III of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. 12181-12189, against the owners and operators of an International House of Pancakes restaurant (IHOP) located at 5370 Kearhy Mesa Road in San Diego, - 2 - California. Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, including restaurants. In his complaint, Pinnock alleged that IHOP1/ failed to comply with certain Title III provisions applicable to existing places of public accommodation. Complaint at 2-3 (copy attached). His complaint also included various state law claims. Id. at 5-10. Pinnock's complaint sought injunctive relief and attorneys fees, but not damages, under the ADA. See id. at 11. Title III authorizes the Attorney General to seek damages on behalf of an aggrieved person, but it does not specifically provide for damages awards in actions by private individuals. See 42 U.S.C. 12188. Pinnock sought damages, however, on his state law claims. Complaint at 11. 2. IHOP filed a counterclaim, asserting that Title III of the ADA was unconstitutional on various grounds. IHOP based its constitutional challenges on Title III's requirements for existing facilities.2/ Because the constitutionality of a federal statute was called into question, the district court notified the Attorney General and, upon uncontested motion, the United States was granted leave to intervene, pursuant to 28 U.S.C. 2403, to defend the constitutionality of Title III. ____________________ 1/ This motion refers to the defendants-appellants collectively as "IHOP." 2/ Title III also imposes requirements for construction of new facilities, see 42 U.S.C. 12183(a)(1), but those standards are not at issue in this case. - 3 - 3. The United States and IHOP then filed cross-motions for summary judgment on the constitutional issues raised in IHOP's counterclaim. On November 8, 1993, the district court denied IHOP's motion for summary judgment and granted the United States' cross-motion. 4. On November 24, 1993, the district court entered a final judgment on IHOP's counterclaim, pursuant to Fed. R. Civ. P. 54(b). Pinnock's federal and state law claims against IHOP are still pending in the district court. 5. IHOP filed a notice of appeal on November 23, 1993.3/ In the docketing statement filed with this Court, IHOP indicated that it intended to raise seven constitutional challenges to Title III. 6. On April 8, 1994, IHOP filed a petition in the United States Supreme Court for a writ of certiorari before judgment. In that petition, IHOP acknowledges that it is challenging "the constitutionality of only Title III of the ADA as it applies to existing facilities." Petition at 13 (emphasis in original). 7. On April 13, 1994, this Court denied IHOP's motion to stay the appeal pending disposition of IHOP's petition for a writ of certiorari. On the same date, this Court also issued a revised briefing schedule. Under the revised schedule, IHOP's 3/ IHOP's notice of appeal was premature. Although the district court granted IHOP's motion to certify the counterclaim for appeal under Rule 54(b) on November 17, 1993, the court did not enter judgment until November 24, 1993. - 4 - brief is due May 18, 1994. The briefs of the United States and Pinnock are due June 17, 1994. 8. On January 13, 1994, a federal grand jury in the Southern District of California returned an indictment charging three defendants -- including Nadar Nazemi Afshar and Majid Zahedi, who are also defendants in the present case -- with violations of federal law for allegedly destroying, through use of fire, the IHOP restaurant at issue in the present case. A copy of the indictment is attached. The indictment alleges that the fire took place on or about December 20, 1993, after the district court's entry of judgment in the present case. 9. Destruction of the IHOP restaurant would appear to moot the ADA claims. As noted, Pinnock's complaint against IHOP sought injunctive relief, but not damages, under Title III.4/ If the restaurant has been destroyed, it is questionable whether the district court would be able to award "any effective relief" to Pinnock on his ADA claims even if he proved that IHOP had violated Title III. Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986); Wilson v. Department of Interior, 799 F.2d 591, 592 (9th Cir. 1986). If there were no realistic prospect that relief would be awarded against IHOP under Title III, IHOP would no 4/ The request for attorney's fees in Pinnock's complaint would not save IHOP's constitutional challenges from mootness. See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986) (substantive claim moot, even though requests for attorney's fees and costs were not); United States v. Ford, 650 F.2d 1141, 1143 (9th Cir. 1981) ("a claim for attorney's fees does not preserve a case which otherwise has become moot on appeal"), cert. denied, 455 U.S. 942 (1982). - 5 - longer have a stake in challenging the constitutionality of Title III, and its appeal would be moot. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) ("'federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.'"), quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). Under such circumstances, any ruling on the constitutionality of Title III would represent nothing but an advisory opinion. 10. The district court is best equipped to make the factual findings that are necessary to determine whether some or all of IHOP's constitutional claims are moot. See Western Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287, 1291-1292 (9th Cir. 1990) (remanding case for determination of mootness where relevant facts not developed in the record), cert. denied, 498 U.S. 1067 (1991). For the foregoing reasons, this Court should remand the case to the district court for a determination whether the ADA claims are moot. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General JESSICA DUNSAY SILVER GREGORY B. FRIEL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3876