IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PATRICIA DAY, et al. ) ) Plaintiffs, ) ) Civil Action 95-1317CV ) PLF v. ) ) ) REPUBLIC FOODS, INC. et al., ) ) Defendants. ) ) UNITED STATES' MEMORANDUM OF LAW AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO BURGER KING CORPORATION'S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR SUMMARY JUDGMENT ERIC H. HOLDER, Jr. DEVAL L. PATRICK United States Attorney Assistant Attorney General for the District Civil Rights Division of Columbia JOHN L. WODATCH JOAN A. MAGAGNA PHILIP L. BREEN KATE M. NICHOLSON SHARON N. PERLEY Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 01-05782 TABLE OF CONTENTS I. INTRODUCTION...............................................1 II. BACKGROUND.................................................4 A. Burger King Corporation's Relationship With Its Franchises...................................4 1. Burger King Corporation's Role In The Operation Of Its Franchises...............5 2. Burger King Corporation's Role In The Design And Construction Of New Restaurants...............................7 B. Statutory Framework: The Americans With Disabilities Act...................9 III. ARGUMENT..................................................11 A. Burger King Corporation's Motions With Respect To Its Coverage Under Section 302 Should Be Denied.........................11 1. Neff Is Wrongly Decided.......................... 12 2. Neff's Holding Frustrates The Purpose Of The Act............................16 3. This Case Is Distinguishable From The Situation In Neff........................17 4. Summary Judgment Should Be Denied Pursuant To Fed. R. Civ. P. 56(f).................19 B. Burger King Corporation's Motions With Respect To Its Coverage Under Section 303 Should Be Denied.........................20 1. Section 303 Applies To All Entities That Exercise Control Over The Design And Construction Of New Facilities....................................21 2. Burger King Corporation's Alternative Motion For Summary Judgment Must Fail........................26 IV. CONCLUSION..................................................28 01-05783 I. INTRODUCTION Plaintiff Patricia Day has cerebral palsy, and uses a wheelchair for mobility. In the summer of 1994, she attempted to patronize a Burger King restaurant in Bowie, Maryland, near her home. The area near the service counter of the Bowie restaurant contains a series of fixed metal barriers designed to cause customers to form an "S" shaped line while awaiting service. When Ms. Day entered the line and attempted to proceed with customers without disabilities, her wheelchair became stuck at the point at which she had to make a 180 degree turn. Ms. Day was unable to free her wheelchair, and substantial effort was required to remove her. Ms. Day then explained to the restaurant manager and to the Director of Operations for the owner of the Burger King franchise that the restaurant design violated her rights under the law. She was informed that the owner of the franchise was satisfied with the restaurant's design, and that, in fact, the design was to be a national prototype for future Burger King restaurants. Thereafter, a representative of Plaintiff Disability Rights Council (DRC) investigated the Bowie restaurant and a number of other area Burger King restaurants. The DRC is an organization whose Board of Directors is composed of individuals, including individuals with disabilities, who have a direct interest in advancing the rights of persons with disabilities. The DRC representative discovered that each restaurant contained barriers to access to individuals with disabilities, including, for example, inaccessible entrances, inaccessible restrooms or restrooms not located on an accessible path of travel, inaccessible seating, inaccessible service counters, and inaccessible queues near the service counter.1 Plaintiffs Day and DRC filed this action alleging that Defendants, the owners, operators, and franchisor of Burger King restaurants in the greater Washington, D.C. area, have violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. SS 12181-89. They allege that Defendants have failed to remove architectural barriers to access in their restaurants, have designed and constructed a new restaurant that is inaccessible to persons with disabilities, and have treated persons with disabilities in a manner that is not equal to their treatment of the general public. One of the Defendants, Burger King Corporation ("BKC"), has moved to dismiss, arguing that (1) the ADA does not cover franchisors and, therefore, because BKC is named solely as franchisor, the complaint fails to state a claim against BKC; (2) Plaintiff Day lacks standing to seek a nationwide injunction; and (3) Plaintiff DRC lacks "prudential" standing, in that it is not within the zone of interests covered by the statute. Alternatively, BKC has moved for summary judgment, arguing that BKC is not covered by the ADA because BKC, in its capacity as franchisor, does not operate a place of public accommodation within the meaning of the Act. 1 Thesefacts are summarized from Plaintiffs' Amended Complaint. 2 01-05785 Plaintiffs have filed an opposition to both motions and have moved to amend their Amended Complaint. The United States, as amicus curiae, supports the Plaintiffs' position, and urges the Court to deny Defendant's motions, and to accept Plaintiffs' Second Amended Complaint.2 As we explain in more detail below, the ADA imposes different obligations for facilities in existence on the Act's effective date ("existing facilities"), and those constructed after the effective date ("new construction"). Owners and operators of existing facilities must remove architectural barriers to access where it is readily achievable to do so, while those who exercise control over the design and construction of 2 We agree with Plaintiffs that BKC's challenge to Plaintiff Day's standing conflates standing to sue, in the first instance, with the proper scope of injunctive relief. We similarly agree that the enforcement section for title III, section 308, specifically incorporates by reference the remedies and procedures provided under title II of the 1964 Civil Rights Act, and that Congress intended standing under title III of the ADA to extend to the full reach permitted by the Constitution. See 42 U.S.C. S 12188(a). Accordingly, there are no prudential barriers to DRC's standing. Although we only specifically address the substantive statutory issues raised by the parties' briefs, we must add that BKC misconstrued the Department's preamble to the title III regulation and the title III Technical Assistance Manual ("TA Manual"). It is true that the regulation and TA Manual are both entitled to deference (see n.18, infra), but BKC wrongly interprets these documents. Use of the word "individual" is not meant to be limiting. Rather, the phrase "suits by individuals" merely differentiates private actions from those brought by the Attorney General. In addition, the reference to "state or local agencies" refers to state or local government agencies, such as the D.C. Human Rights Commission, not private corporations like the Disability Rights Council. "State or local" are the terms consistently used in Title II of the ADA (which applies to state and local governments), and in the Department's documents interpreting Title II. 3 01-05786 new facilities must ensure that the facilities are fully accessible, in accord with the ADA Standards for Accessible Design (hereinafter "the Standards").3 Thus, BKC is covered under section 302 of the Act (dealing with existing facilities) if it "operates" the restaurants at issue. Under section 303 (dealing with new construction), BKC is covered if it exercised control over the design and construction of the new restaurants. Under both provisions, there are sufficient indications of BKC's coverage to deny Defendant's motions. II. BACKGROUND A. Burger King Corporation's Relationship With Its Franchises In support of its motion for summary judgment, BKC has submitted the affidavit of James Lyons, Vice President of Franchising and Development Services for BKC, appended to which is a copy of the Target Reservation Agreement for the newly- constructed Bowie restaurant. (Target Reservation Agreement (hereafter Def. Ex. 1)). BKC enters such agreements with developers prior to the consummation of a franchise agreement. In addition, BKC has submitted partial copies of the franchise agreements for all of the restaurants at issue, attached to the declaration of Thomas G. Archer, Senior Attorney for BKC. 3 42 U.S.C. S 12182 (b) (2) (A) (iv) and 28 C.F.R. S 36.304 (a) (readily achievable barrier removal); 42 U.S.C. S 12183 (a) (1) and 28 C.F.R.S 36.401 (a) (new construction). The Standards are found at 36 C.F.R. pt. 36, App. A; see 28 C.F.R. S 36.406. 4 01-05787 (Franchise Agreements (hereafter Def. Ex. 2)).4 These documents, themselves, create a disputed issue of fact concerning the extent of BKC's control over its franchised restaurants. They evidence that discovery regarding the practices of the parties may well demonstrate BKC's control over the operation of local franchises and the design and construction of newly-franchised restaurants. 1. Burger King Corporation's Role In The Operation Of Its Franchises Arguing that it does not operate franchised restaurants, BKC points to a paragraph in the franchise agreements providing that the franchisee is an independent contractor, and requiring the franchisee to exhibit a sign on the premises that the restaurant is independently operated. (Def. Ex. 2, P 10.B). The remainder of the franchise agreements belie this description. Specifically, BKC's franchise agreements state that BKC "has developed a comprehensive restaurant format and operating system" and that it is "engaged in the business of operating and granting franchises to operate Burger King Restaurants." (Def. Ex. 2, Intro. P B). With respect to this "operating system" the agreements state that: [t]he establishment and maintenance of a close personal relationship between BKC and FRANCHISEE in the operation of the Franchised Restaurant and adherence to the principles of the Burger King System constitute the basic underlying substance of the franchise. Def. Ex. 2, P 4. (emphasis added). 4 Because the franchise agreements are substantially similar, all paragraph references are to the Bowie Franchise Agreement, found at Def. Ex. 2, tab 5. 5 01-05788 The "operating system" is outlined in the Manual of Operating Data ("M.O.D. manual") which contains "the official mandatory restaurant operating standards, specifications and procedures prescribed from time to time by BKC for the operation of a Burger King Restaurant," and which is deemed part of the franchise agreements. (Id. P 4.A. (emphasis added)). BKC also reserves the right to make any changes in the operating standards and specifications, as amendments or revisions to the M.O.D., and the franchisee is obligated to adopt such changes. (Id.) Burger King Corporation has not provided a copy of the M.O.D. manual to the Court or Plaintiffs, so the specific nature and extent of BKC's operational control is unknown to Plaintiffs at this time. Finally, although franchisees are entitled to offer operating suggestions for their particular restaurants, the franchisee may not utilize any such suggestions in the restaurant without the prior written consent of BKC. (Def. Ex. 2, P 4). In addition, BKC controls signage (id. P 4.C.), hours of operation (id. P 4.G.), equipment (id. P 4.D.), menu and services items (id. P 4.F.), uniforms (id. P 4.H.), and accounting procedures (id. P 9). BKC also prescribes an extensive training program (id. PP 7, 5.B.), and has approval discretion over items as detailed as the placement of public telephones, vending machines, and video games. (Id. P 4.E.). Finally, BKC attested to its extensive control over individual franchises before the Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), describing its relationship with its franchisees as "a 6 deeply interdependent relationship." Appellate Brief at 31.5 BKC "sets policies and works directly with franchisees to resolve major problems," and, through its district offices, conducts "day-to-day monitoring of franchisees." Rudzewicz, 471 U.S. at 465-66. With respect to the building and premises, the franchise agreements entitle BKC to authorize and approve construction of and improvements to the restaurant. (Def. Ex. 2, P 4.B.). The franchised restaurant may not thereafter be altered without the prior written approval of BKC. (Id.) Moreover, BKC has the affirmative right to require improvements or alterations (related to the current Burger King Restaurant image), and also to require any repairs as requested by BKC. (Id.) Such changes must be completed on a timetable as specified by BKC. (Id.) BKC also has a right of entry and inspection of the restaurant which may be conducted at any time without prior notice to the franchisee. (Id. P 4.J.). 2. Burger King Corporation's Role In The Design And Construction Of New Restaurants BKC's submissions provide several indications of its probable control over the design and construction of new franchised restaurants. The Target Reservation Agreement provides BKC the right to determine "the type of facility, site layout, and equipment configuration . . . including the building design, style, size and interior decor, as well as the type of 5 Cited in Plaintiff's Opposition to Defendant Burger King Corporation's Alternative Motion for Summary Judgment, pp. 14-15. 7 01-05790 equipment, service format and equipment arrangement for any future Restaurant." (Def. Ex. 1, P 4.2.4.(c)). BKC, in fact, supplied the developer of the Bowie franchise with standardized building plans for Burger King Restaurants, as is its common practice with prospective franchisees. (Lyons Aff., P 5; Def. Ex. 1, P 4.2.4.(c); see Def. Ex. 2, P 5.A.). According to the terms of the Target Reservation Agreement, developers are then able "[i]f, and to the extent . . . require[d]" to procure additional architectural or engineering services at their own expense. (Def. Ex. 1, P 4.2.4. (c)) (emphasis added). In such event, the franchisee is required to "obtain from BKC written architectural and design approval of the . . . plans." (Id.)6 With respect to construction of the restaurant, the Target Reservation Agreement prescribes a development schedule requiring that construction be completed within a given time. (Def. Ex. 1, P 2.1.). Failure to do so results in default of the agreement. (Def. Ex. 1, P 6.1.(d)). BKC retains the right to refuse to grant a franchise agreement if the "completed building does not meet plans and specifications approved by BKC." (Def. Ex. 1, P 4.2.4. (d)). BKC maintains a measure of on-going control with respect to design and construction; namely, the ability to change, amend, or modify elements from time to time. (Def. Ex. 2, 6 The franchise agreements provide that any modification to the standard plans and specifications provided by BKC -- even if requested or required by planning or zoning boards, building codes, or otherwise -- must be approved in writing by BKC. (Def. Ex. 2, P 5.A.) 8 01-05791 P 4.B). As noted above, the franchise agreements also entitle BKC to authorize and approve construction of and improvements to the restaurants. (Id.). B. Statutory Framework: The Americans With Disabilities Act The Americans with Disabilities Act, 42 U.S.C. S 12101 et seg., is Congress' most comprehensive civil rights legislation since the Civil Rights Act of 1964. Its purpose is "to invoke the sweep of congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities, "42 U.S.C. S 12101(b) (4), and to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. S 12101(b) (1). The ADA's coverage is accordingly broad -- prohibiting discrimination on the basis of disabilty in employment, State and local government programs and services, transportation systems, telecommunications, commercial facilities, and the provision of goods and services offered to the public by private businesses. This case concerns title III of the ADA, 42 U.S.C. SS 12181-89, which prohibits discrimination by private businesses that operate places of public accommodation, including restaurants -- 42 U.S.C. S 12181 (7) (B) -- and by entities that exercise control over the design and construction of new facilities, 42 U.S.C. S 12183 (a). Section 302(a) of the ADA contains title III's general mandate prohibiting discrimination against individuals with disabilities, providing: 9 No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. S 12182 (a). See 28 C.F.R. S 36.201 (a). Section 302 (b) contains several general and specific prohibitions designed to carry out this mandate. At issue in this case are the general provisions that require places of public accommodation to provide persons with disabilities with an opportunity to participate in and benefit from their services on a basis equal to that offered to the general public. 42 U.S.C. SS 12182(b)(1)(A)(i),(ii) & (iii). See 28 C.F.R. SS 36.202(a) - (c). Plaintiffs also have alleged violations of section 302(b)(2)(A)(iv), which requires existing facilities to remove architectural barriers to access where such removal is "readily achievable." 42 U.S.C. SS 12182(b)(2)(A)(iv). See 36 C.F.R. S 36.304. Finally, Plaintiffs have alleged a violation of the separate section of title III, section 303, that requires new facilities to be designed and constructed so as to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. S 12183. See 28 C.F.R. S 36.401. New construction is to be carried out in strict compliance with the ADA Standards for Accessible Design. 28 C.F.R. S 36.406 & App. A. 10 01-05793 III. ARGUMENT A. Burger King Corporation's Motions With Respect To Its Coverage Under Section 302 Should Be Denied. To succeed in its motion for summary judgment on its coverage under section 302, BKC must establish that there is no genuine issue of material fact as to its status as operator of the restaurants at issue, and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). BKC's own submissions to the Court, outlined above, amply support the inference that it operates the franchised restaurants. Id. at 254 (court must draw all justifiable inferences in favor of non-movant). Nevertheless, relying on Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995), cert. denied, -- S.Ct. --, 64 U.S.L.W. 3450 (Jan. 8, 1996), Burger King asserts that it is entitled to judgment as a matter of law. In Neff, the plaintiff alleged that two franchised Dairy Queen restaurants were inaccessible to persons who use wheelchairs. Id. at 1064. The plaintiff argued that the franchisor, American Dairy Queen ("ADQ"), "operated" the restaurants, and should therefore be held liable for the restaurants' failures to remove the barriers to access. Id. at 1065. The Fifth Circuit held, on the basis of its conclusion that ADQ had minimal control over the removal of structural barriers, that ADQ did not operate a place of public accommodation within the meaning of the Act. Id. at 1066, 1068- 69. 11 We argue below that (1) the court in Neff too narrowly construed what it means to operate a place of public accommodation; (2) Neff's holding frustrates the purpose of the Act; (3) several factors distinguish this case from the situation presented in Neff. 1. Neff Is Wrongly Decided. Neff erred by focusing solely on the franchisor's control over the specific prohibited activity, rather than its control over the place of public accommodation. The court began with the well-established canon of statutory construction that, where Congress does not define the term at issue, courts "'construe it in accord with its ordinary and natural meaning.'" Neff, 58 F.3d at 1066 (citations omitted). The court appropriately considered such definitions of "operates" as "[t]o control or direct the functioning of." Id. at 1065. From these definitions, however, the court developed an inappropriately narrow test, looking only to whether the entity had control over the prohibited activity (the removal of structural barriers), not to whether the entity had control over, or directed the functioning of, the place of public accommodation. Id. The court then applied this test to one part of one sentence in a franchise agreement dealing with structural modifications, expressly deeming all other evidence of the franchisor's control over the operation of the restaurant irrelevant.7 The court's interpretation of this sentence, as 7 Id. at 1066 (emphasis added): (continued...) 12 01-05795 providing the franchisor the right to "disapprove" modifications, which the court found "essentially negative in character," was the sole basis for its broad conclusion that the franchisor did not operate the restaurants. Id. at 1068. Neff's narrow test for coverage is not supported by the statute. Section 302 (a) of the ADA prohibits discrimination by any entity that "owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. SS 12182 (a). Cf. Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1335 (N.D. Cal. 1994) ("[t]he use of language relating to ownership or operation implies a requirement of control over the place providing services.") (emphasis added)). Section 302 (b) does not address coverage, but merely defines those specific actions by covered entities that constitute discrimination. The relevant inquiry regarding coverage, therefore, is not limited to control over any specific prohibited act, but rather the extent of control generally over the place of public accommodation. The entities 7(...continued) Neff and the United States point to numerous non-structural aspects of the San Antonio Stores' operations that they contend ADQ controls, such as accounting, personnel uniforms, use of trademarks, etc. While ADQ's control over these aspects may be relevant in other contexts, we hold that because it does not relate to the allegedly discriminatory conditions at the San Antonio Stores, it does not bear on the question of whether ADQ "operates" the franchises for the purposes of the ADA's prohibition on discrimination in public accommodations. 13 01-05796 covered by section 302, and the activities prohibited by section 302, are distinct in the statute and should not be conflated.8 Moreover, the ADA cases upon which Neff relies do not support its narrow test.9 As support for its narrow test, Neff cites to Carparts Distribution Center Inc. v. Automotive Wholesalers Ass'n of New England, 37 F.3d 12 (1st Cir. 1994), where the First Circuit considered whether a self-funded medical reimbursement plan was covered as an "employer" under title I of the ADA. The court did not look just to the plan's control over the alleged discriminatory act, as Neff implies. To the contrary, the court in Carparts underscored its obligation to construe the ADA broadly, and offered several possible theories under which the plan -- which in no way "employed" the plaintiff 8 The regulation supports the same conclusion. Unlike the statute, the regulation identifies the responsible party in its discussion of each of section 302(b)'s prohibitions, as "public accommodations." See 28 C.F.R. S 36.304(a) ("A public accommodation shall remove architectural barriers in existing facilities. . . .). The regulation defines "public accommodation" as "a private entity that owns, leases (or leases to) or operates a place of public accommodation." Id. at S 36.104. Thus, under both the statute and the regulation, coverage is to be determined by the entity's operational control over the place of public accommodation. 9 The one exception is the lower court ADQ opinions. See Young v. American Dairy Queen Corp., 1994 WL 761233 (N.D. Tex. May 11, 1994) (not reported); Neff v. American Dairy Queen, Inc., 879 F. Supp. 57 (W.D. Tex. 1994). Indeed, the court's conclusion in Young that "retaining architectural control cannot be tantamount to operating a facility which one does not own or lease," Young at 1994 WL 761233, *2, specifically disregards the statutory mandate to expand coverage beyond owners and lessors of public accommodations, and also to hold operators -- those in the position of power or control -- liable under the ADA. 14 01-05797 in the traditional sense -- could be found covered by the Act. Id. at 16-18. The decisions in Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994), and Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994), similarly do not support Neff's analysis. In Howe, the court noted the broad language and remedial purposes of the ADA, and extended coverage under title III to an on-call admitting physician, finding him individually liable for his discriminatory actions. Howe, 873 F. Supp. at 78. In determining whether the physician was an "operator of the hospital" within the meaning of the ADA, the court considered not only whether the physician had the power and discretion to perform the allegedly discriminatory act, but whether he was in a position of authority at the hospital generally. Id. at 78. Applying a similar analysis, the court in Aikins found that a physician did not operate a hospital within the meaning of the ADA, not only because he had no control over the specific prohibited activity -- the requirement to provide auxiliary aids and services to individuals who are deaf -- but because he was "not on the hospital's board of directors, and {had} no authority to enact or amend hospital policy." Aikins, 843 F.Supp. at 1335. Looking exclusively at an entity's authority over the area of prohibited activity, as the court did in Neff, is not likely to provide an adequate picture of the control such entity has, in fact, over ensuring compliance with the Act. In assessing BKC's 15 01-05798 claim, this Court should follow the statute and inquire into its actual operational control over its franchised restaurants. 2. Neff's Holding Frustrates The Purpose Of The Act. Holding franchisors liable in situations where they have operational control over places of public accommodation effectuates the statute's remedial purpose of opening the mainstream of commercial life to individuals with disabilities. H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 2, at 92 (1990). The categories of facilities represented in the statutory and regulatory definitions of places of publication include many types of businesses in which franchise arrangements are common, e.g., hotels, restaurants, fast food establishments, day-care centers, movie theaters, and places of recreation. 42 U.S.C. S 12181(7); 28 C.F.R. S 36.104. Following Neff's restrictive reading of a franchisor's obligations under the ADA would frustrate Congressional intent to eliminate discrimination on the basis of disability by insulating franchisors in this large segment of the business community from compliance with the Act's mandates.10 It is particularly important to be able to enforce the ADA against a franchisor such as BKC with respect to the specific 10 Franchise relationships form a large part of the commercial economy. "Today, more than 540,000 franchised businesses dot the American landscape, generating more than 35% of all retail sales, and more than $800 billion." 1994 International Franchise Association Expo Catalog, Statement of James S. Bugg, Chairman of the Board, International Franchise Association (citing John Naisbitt, futurist and author of Megatrends and Megatrends 2000). 16 01-05799 goal of removing architectural barriers to access in existing facilities. The ADA requires covered entities to undertake affirmative steps to remove barriers in existing facilities. See 28 C.F.R. S 36.304. The first step in fulfilling such an obligation is the task of surveying the facility, or the plans pursuant to which the facility was constructed, in order to identify existing barriers. A nationwide franchisor like BKC, which has control over the uniformity of the buildings in its franchise is in the best position to identify at least the majority of barriers to access that are common to its standardized designs. With its knowledge of the basic layouts of the various franchised restaurants, it also is in a unique position to craft a plan prioritizing which barriers are to be removed and the timeline for removing them. See 28 C.F.R. S 36.304. 3. This Case Is Distinguishable From The Situation In Neff. In any event, several factors distinguish this case from Neff. First, the Plaintiff in Neff did not argue that the franchise agreement at issue was ambiguous, and, on that basis, the Neff court found no disputed issues of fact.11 Courts typically find that the nature and extent of control exercised by a franchisor over a franchisee is a question of fact. See, e.g., Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 785-86 11 Neff, 58 F.3d at 1065 ("Neff has not alleged that the . . . franchise agreement is ambiguous. Indeed, the parties do not dispute the meaning of the terms of the agreement. . ."). 17 01-05800 (3rd Cir. 1978); Fair Emp. Council of Greater Washington, Inc. v. BMC Marketing Corp., 829 F. Supp. 402 (D.D.C. 1993), aff'd in part and rev'd in part on other grounds, 28 F.3d 1268 (D.C. Cir. 1994). By contrast to Neff, the franchise agreements in this case are at best ambiguous with respect to BKC's control in the overall operation of the restaurants. On the one hand are numerous indications of BKC's systemic operational control of franchised restaurants, and on the other is the provision in the same agreement that the restaurants are independently operated. See supra at pp. 5-7. To the extent that such ambiguities exist, they may only be clarified through a proper inquiry into the practices and interpretations of the parties.12 Similarly, with respect to structural modifications at the buildings, it is not clear from the documents whether BKC's right to require improvements (which are tied to the "Burger King image"), and its separate right to require repairs includes the authority to remove barriers to access. See supra at pp. 5-7. Even if the Court were to accept Neff's narrow definition of "operates," BKC's authority to require such changes is certainly more "affirmative" in character than the authority the court found lacking in Neff.13 Such changes must be done on a 12 See Board of Trade of City of Chicago v. Hammond Elevator Co., 198 U.S. 424, 437 (1905) (the label by which parties to a relationship designate themselves is not controlling). 13 Neff found that American Dairy Queen's "negative in character" authority to "veto" structural changes, "without more," was insufficient for coverage. Neff, 58 F.3d at 1068. 18 01-05801 timetable as specified by BKC. Id. And BKC has a right of entry and inspection of the restaurant, which may be conducted at any time without prior notice to the franchisee. Id. Another factor distinguishing this case from Neff is the nature of the evidence before the court. In Neff, the plaintiff relied exclusively on the franchise agreement.14 In this case, Plaintiffs also have provided the Court with excerpts from BKC's argument in Burger King Corp. v. Rudzewicz, supra, 471 U.S. 462. BKC's representations shed light on the extent to which the franchise agreements reflect the parties' practices, because BKC argued that the franchise agreements "regulate the finest details of the franchise."15 Moreover, BKC's argument to the Supreme Court that its relationship with its franchises is "deeply interdependent" provides further evidence to undercut its claim, in this case, that BKC does not "operate" its franchises. Id. 4. Summary Judgment Should Be Denied Pursuant To Fed. R. Civ. P. 56(f). Finally, the franchise agreements submitted by BKC are incomplete, and, therefore, should not serve as the basis for summary judgment against Plaintiffs. Specifically, BKC has not provided Plaintiffs or the Court with its M.O.D. manual that details BKC's operational system, and that is therefore likely to 14 Neff, 58 F.3d at 106 ("Neff's only summary judgment evidence, and the only basis for her claim . . . is the Nacogdoches Store franchise agreement. . . .). 15 Reply Brief of Appellant at 3, as cited in Plaintiff's Opposition Memorandum at 15. 19 01-05802 elucidate the nature and extent of BKC's operational control. It would be inappropriate for the Court to rule against Plaintiffs at summary judgment when critical evidence necessary to justify Plaintiff's Opposition remains in Defendant's exclusive possession. At the very least, the Court should deny Defendant's motion pursuant to Fed. R. Civ. P. 56(f).16 B. Burger King Corporation's Motions With Respect To Its Coverage Under Section 303 Should Be Denied. Even if this Court concludes that BKC does not "operate" a place of public accommodation, such a determination is dispositive only of the claim under section 302 of the Act. See 42 U.S.C. S 12182(a); 28 C.F.R. S 36.201. The necessary inquiry under section 303 is not whether BKC owns or operates Burger King restaurants, but whether it exercised control in the design and construction of the Bowie restaurant and other new restaurants. 42 U.S.C. S 12183(a)(1); 28 C.F.R. S 36.401(a). As argued below, coverage under section 303 is broader than that under section 302. Section 303 includes (1) an additional category of 16 The Court should also deny Defendant's Motion to Dismiss with respect to its coverage under section 302(a). Although Plaintiffs did not specifically allege that BKC is covered because it operates the restaurants at issue, they did name BKC as franchisor. BKC's status as franchisor is the sole basis for the theory that it operates the restaurants. As such, its coverage may reasonably be inferred from Plaintiffs' allegation. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (complaint must be liberally construed). Especially in civil rights matters, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 46 (1957). As we have argued, Plaintiffs may prove that BKC "operates" the restaurants. 20 01-05803 prohibited activity, the design and construction of inaccessible facilities; (2) an additional category of covered facilities, commercial facilities;17 and (3) additional responsible parties, those who design and construct new buildings, such as architects, contractors, and/or large franchisors that provide standardized designs to their franchisees. 1. Section 303 Applies To All Entities That Exercise Control Over The Design And Construction Of New Facilities. Unlike section 302, section 303 does not separately designate the parties responsible for compliance with its mandate. To discern Congress' intent regarding which entities are covered by section 303, therefore, we examine the explicit statutory language, and the structure and purpose of the statute. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990). 17 The statute defines "commercial facilities" thus: The term 'commercial facilities' means facilities: (A) that are intended for nonresidential use; and (B) whose operations will affect commerce. Such term shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in section 242 or covered under this title, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. S 3601 et seq.). 42 U.S.C. S 12181(2) (Definitions); see 28 C.F.R. S 36.104. The terms "commercial facilities" and "places of public accommodation" do not define mutually exclusive groups of facilities. Because "commercial facilities" means all non- residential buildings whose operations affect commerce, most public accommodations are also commercial facilities. Many commercial facilities are not, however, places of public accommodation. 21 01-05804 Section 303 (a) provides that: as applied to public accommodations and commercial facilities, discrimination for purposes of section 302 (a) of this title includes (1) a failure to design and construct facilities for first occupancy later than [January 26, 1993] that are readily accessible to and usable by individuals with disabilities . . . 42 U.S.C. S 12183 (a). By prohibiting the "design" or "construction" of inaccessible new facilities, Congress intended for coverage under section 303 to reach those entities that actually exercise control over design and construction. Congress' use of the term "design" underscores this reading. Congress could have made it illegal only to construct new facilities, and thereby imply that only those responsible for the final building be covered. Instead, Congress included the word "design," indicating that it is not just those parties who are ultimately owners or operators of the facility, but also those who play a role in the design of a building, who are responsible for ensuring that the building be accessible to persons with disabilities. By its own terms, section 303 expands the scope of covered facilities to include not only places of public accommodation, but the broader category of commercial facilities, which are not included in section 302. The reference in section 303 to section 302(a) thus cannot sensibly limit coverage to those designated therein -- entities which own, lease, or operate places of public accommodation -- because to do so would render the commercial facilities portion of section 303 a nullity. Therefore, section 22 303 refers to section 302(a) not to identify the parties that may be held liable under section 303, but rather, to indicate that the failure to design and construct accessible facilities constitutes "discrimination on the basis of disability." This interpretation gives full effect to the terms of the provision. See Moskal v. United States, 498 U.S. at 109-110 (courts should interpret statutes in a manner that gives effect to every clause and word of the statute) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1990)) (same).18 Under well-established canons of statutory construction, this Court must look not only to the text of the statute, but 18 The Department of Justice has taken this position in its Technical Assistance Manual, issued pursuant to statutory mandate, 42 U.S.C. S 12186(b). See THE AMERICANS WITH DISABILITIES ACT Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities, November 1993, III-5.1000 (General) (attached hereto as United States' Exhibit 1). Because the Department is the executive agency charged with administering title III of the ADA, its interpretations of the statute and its regulation are entitled to substantial deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). See generally, Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150-51 (1991); Lyng v. Payne, 476 U.S. 926, 939 (1986); Udall v. Tallman, 380 U.S. 1, 16 (1965)). This Court has deferred to the Department's Technical Assistance Manual in construing title III. Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 37 n.4 (D.D.C. 1994). For other courts deferring to the Department's ADA Technical Assistance Manuals, see Bechtel v. East Penn School Dist. of Lehigh County, 1994 WL 3396, *2-*3 (E.D. Pa. Jan. 4, 1994) (Technical Assistance Manual for Title II of the Act); Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993) (same); Chatoff v. City of New York, 1992 WL 202441 (S.D.N.Y. June 30, 1992) (same). 23 01-05806 also to its remedial purposes.19 By including within the coverage of section 303 those with control over design and construction, Congress chose the path that would best safeguard its stated purpose, "that, over time, access will be the rule rather than the exception." H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 3, at 63 (1990). Indeed, Congress intended strict adherence to section 303. Unlike section 302, where Congress provided a number of statutory cost defenses, in section 303, Congress drew a line in the sand and determined that from January 26, 1993 forward, all new buildings must be fully accessible to individuals with disabilities. See id. ("The ADA is geared to the future . . . Thus, the bill only requires modest expenditures to provide access in existing facilities, while requiring all new construction to be accessible."). Placing responsibility for compliance on those in the best position in terms of expertise and authority to determine design and construction elements thus best effectuates a fully accessible future. Architects typically have design responsibility but other building professionals may also be involved. Moreover, owners and developers have decisionmaking authority that may override the determinations architects or other building professionals 19 Peyton v. Rowe, 391 U.S. 54, 65 (1968) (civil rights legislation should be liberally construed in order to effectuate its remedial purpose); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). See Carparts Distribution Center, Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 18 (1st Cir. 1994) (broadly construing the ADA); Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993), aff'd, 9 F.3d 1067 (3d Cir. 1993) (same), cert. denied sub nom. Hoskins v. Kinney, 114 S. Ct. 1545 (1994); Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994)(same). 24 01-05807 make. Section 303 thus extends coverage to all private entities that exercise control over design and construction. As applied to this case, a large franchisor that both provides prototype designs for its restaurants and has final approval authority over the designs and decisions of individual developers may therefore exercise significant control over the design and construction of its franchisees' restaurants. Indeed, as a policy matter, the potential impact of a franchisor such as BKC in the design and construction of new franchises is much greater than that of a single owner. Through the standardized designs it provides, and the decisions it makes in evaluating the designs of individual developers, such a franchisor affects a significant segment of the newly-constructed restaurants in the fast food industry.20 20 BKC interprets coverage under section 303 as limited to those entities that own or operate places of public accommodation. As we have argued above, there is sufficient evidence to conclude for the purpose of summary judgment that BKC operates its franchised restaurants. As explained above, however, BKC's interpretation of the statute creates an illogical result, because limiting coverage to owners or operators of places of public accommodation nullifies Congress' inclusion of commercial facilities. Similarly, Congress did not intend the phrase "own, lease (or lease to), or operate" to apply to commercial facilities: nowhere in section 302 or section 303 are the terms "own, lease (or lease to), or operate" applied to "commercial facilities." Limiting coverage to those who own, operate, lease or lease to places of public accommodation or commercial facilities would, in fact, undermine the purpose of the new construction section. On the one hand, it overreaches, because in many cases the operators or lessees of a building, or even owners who purchase well after construction, will have little to do with its design and construction. On the other hand, it underreaches by failing to hold responsible those with expertise in design and construction. 25 01-05808 2. Burger King Corporation's Alternative Motion For Summary Judgment Must Fail. The documents BKC submitted to the Court provide ample evidence of BKC's role in the design and construction of new Burger King Restaurants from which the Court may infer coverage under 303. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (courts must construe facts in favor of non-moving party). Specifically, BKC supplies prototype drawings to its franchisors; it has approval authority over the architectural drawings submitted by the franchisees; it maintains extensive rights to determine the design of various features of the restaurant;21 and it has the ability to withhold the right to a franchise for any finally-constructed buildings that do not comply with its approved drawings. See discussion supra at pp. 7-9. Moreover, a central material fact -- whether the standardized drawings supplied by BKC contained the barriers to accessibility alleged in the complaint -- is in dispute. Although BKC suggests in its brief that it did not designate the dimensions of the non-compliant service queue in the standardized design it provided to the Bowie franchise, the evidence it cites for this proposition does not support it. See Def.'s Sum. J. Mem. at 8 (citing Lyons Affidavit at PP 10, 11). Instead, the Lyons affidavit merely states that BKC did not "mandate" or "require" 21 The areas of review reserved to Burger King Corporation in the design and construction of a franchise -- such as determining the type of facility, site layout, equipment configuration, the building design, the type of equipment, service format, etc. -- belie its argument that Burger King Corporation's review is limited to image items. Def. Ex. 1, P 4.2.4. (c). 26 01-05809 the dimensions of the queue line, and that it did not "refuse" to approve a modification involving other dimensions. Lyons Aff. at PP 10, 11. The affidavit, thus plainly leaves open the possibility that BKC supplied a prototype drawing to the Bowie franchise that included dimensions that were inaccessible to individuals with disabilities. BKC's claim that it did not require the developer of the Bowie restaurant to use inaccessible specifications and that it did not obstruct an attempt on the part of the developer to ensure compliance cannot exempt it from its own responsibility to comply with the new construction standards.22 22 BKC's motion to dismiss similarly fails. Plaintiffs have provided enough factual information to allege that Burger King Corporation has violated the new construction provision of the ADA. See Jenkins v. McKeithen, 395 U.S. at 421. Specifically, Plaintiffs' Amended Complaint alleges: (1) that the Burger King Restaurant in Bowie, Maryland qualifies as new construction for the purposes of the ADA (P 5); (2) that when attempting to patronize the restaurant, Plaintiff Day's wheelchair became stuck in a queue near the service counter, and that substantial effort was required to remove her (PP 12-13); (3) that Ms. Day informed both the manager and the Director of Operations for the Bowie franchise about the problem with the queue (PP 16-17); (4) that the Director of Operations told her that the design used was to be a national prototype for Burger King restaurants; (5) that on measuring the queue, its specifications fail to comply with the Standards (PP 20, 21, 22, 24); and (6) that Defendants, among them Burger King Corporation, have discriminated on the basis of disability by failing to design and construct facilities that are readily accessible to and usable by individuals with disabilities (P 59). 27 01-05810 IV. CONCLUSION For the above reasons, the Court should deny Defendant Burger King Corporation's Motion to Dismiss and its Alternative Motion for Summary Judgment. Dated: Washington D.C. February 8, 1996 Respectfully Submitted, ERIC H. HOLDER, Jr. DEVAL L. PATRICK United States Attorney Assistant Attorney General for the District Civil Rights Division of Columbia By: JOHN L. WODATCH, D.C. Bar #344523 JOAN A. MAGAGNA, D.C. Bar #910885 PHILIP L. BREEN, D.C. Bar #412735 KATE M. NICHOLSON, SHARON N. PERLEY, Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 28 01-05811 CERTIFICATE OF SERVICE I, the undersigned attorney for the United States of America, do hereby certify that on February 8, 1996, I personally caused to be served upon the persons listed below, by First Class mail, postage pre-paid, true and correct copies of the foregoing Motion for Leave to Participate as Amicus Curiae, Memorandum of Law, and Proposed Order. W. Barry Blum, Esq. Jonathan E. Perlman, Esq. Schulte, Blum, McMahon, Joblove & Haft 3150 First Union Financial Center 200 South Biscayne Boulevard Miami, FL 33131-2311 Counsel for: BURGER KING CORPORATION Thomas P. Cassidy Karen Kendrick Brown Lewis White & Clay 1000 16th Street, N.W. Washington, D.C. 20036 Counsel for: BURGER KING CORPORATION Christopher Wolf, Esq. Tom Urban, Esq. Proskauer, Rose, Goetz & Mendelsohn 1233 20th Street, N.W. Suite 800 Washington, D.C. 20036 Counsel for: REPUBLIC FOODS, INC. and HARVEST FOODS OF MARYLAND, INC. Jonathan Keiler, Esq. Bulman, Dunie, Burke & Feld 7427 Arlington Road Bethesda, MD 20814 Counsel for: POTOMAC FOODS COMPANY-III, INC. 01-05812 Roderic V. O. Boggs Washington Lawyers Committee for Civil Rights and Urban Affairs 1300 19th Street, N.W. Washington, D.C. 20037 (202) 835-0031 John H. Pickering Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 ATTORNEYS FOR PLAINTIFFS SO CERTIFIED this 8th day of February, 1996. KATE M. NICHOLSON Trial Attorney U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 2 01-05813