Independent Living Resources v. Oregon Arena Corp.

OPINION

ASHMANSKAS, United States Magistrate Judge:

I. INTRODUCTION.........................................................705

II. MOTIONS FOR SUMMARY JUDGMENT...................................706

1.

Pattern and

Practice....................................................706

2.

Mental

State...........................................................707

3.

Dispersal of Wheelchair

Seating:.........................................707

A Legal Standards:...................................................708

B. Level 7:...........................................................710

C. Vertical and Horizontal Distributon:..................................714

D. Availability of Wheelchair Seating: ...................................717

(i) Is OAC Responsible for Infiling and Ticket Sale Policies?..........718

(ii) Do the Infilling and Ticket Sale Policies at the Rose Garden Violate the Title III Regulations?.............................719

(a) Season Tickets and Long-Term Contracts: ...................719

(b) Tickets for Individual Games:...............................722

(e) Tickets for Other Events: ..................................723

(d) Conclusion:...............................................724

4.

Companion

Seats:......................................................724

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A. Interpretation of Standard 4.33.3 ..................................... 724

B. “Substantially Equivalent or Greater Access”..........................726

5.

Modified Aisle Seats:

...................................................728

6.

Line of Sight Over Standing

Spectators:...................................732

A. Whether DOJ could Require that Wheelchair Users be Provided with a Line of Sight Over Standing Spectators............................732

B. Whether such a Requirement does Exist, and Whether it is Binding

Upon this Defendant .............................................734

(i) Does Timing Matter?..........................................735

(ii) Was the 1994 TAM Supplement a Valid Interpretive Regulation?................................................736

(a) Did DOJ Adopt the Access Board Commentary?...............737

(b) Other Arguments Regarding Lines of Sight Over Standing Spectators..............................................742

(c) The Access Board’s Change of Heart........................743

• (d) Whether the ADA itself Provides an Independent Source of Authority for Requiring Lines of Sight Over Standing Spectators.......................'.......................743

C. Whether Defendant has any Defense to the Enforcement of a Requirement to Provide Lines of Sight over Standing Spectators.....747

D. Conclusion........................................................758

7.

Executive

Suites:.......................................................758

A. Are the Suites Subject to Title III of the ADA? ........................758

B. Do Plaintiffs have Standing to Maintain this Claim?.....................760

C. Do the Suites Comply with the ADA?.................................763

D. Visual Alarms in the Suites: .................:.......................764

8.

Premises Leased to

Concessionaires:......................................766

9.

Camera Operator

Areas:.................................................768

A. Are the Camera Positions Covered by Title III?........................769

B. Is there any Excuse for the Failure to Design these Camera

Operator Positions to be Wheelchair Accessible? .....................769

III. DEFENDANT’S MOTION TO DISMISS ON GROUNDS OF MOOTNESS.....770

1.

Whether Plaintiffs are Entitled to Recover

Damages:........................771

2.

Potential for Future

Violations:..........................................774

3.

Issues No Longer in

Dispute:........................ 774

4.

Conditions that Defendant Claims to have Redressed but Plaintiffs

Disagree:............................................................776

5.

Conditions that Defendant Denies are a Violation and has Not

Modified.....779

A. Protruding Object Hazards: .........................................779

(i) Scope of Rule:................................................779

(ii) Protruding Objects in Parking Garages: .........................780

(iii) Placement of Planters, Waste Paper Baskets, and Similar Items Beneath Protruding Objects:............................780

(iv) Mobile Trash Cart:............................................781

(v) Counters on Self-Service Food Carts: ...........................781

(vi) Counters Mounted on Columns:................................■. 781

(vii) Baby-Changing Areas:........................................782

(viii) Protruding Objects Improperly Mounted Below 80 Inches AFF:........................................ 782

(ix)Visual Alarms Improperly Mounted Above 80 Inches AFF:.........783

B. The Remaining 72 Issues:...........................................783

IV. MISCELLANEOUS MOTIONS ... .■.........................................784

V. CONCLUSION .!........................... ..............................785

I. INTRODUCTION

ba 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 ,

et seq.

The purpose of this legislation was to eliminate discrimination against individuals with disabilities, 42 U.S.C.

*706

§ 12101(b).

1

To date, most ADA litigation has focused upon Title I, which governs the duties that the ADA imposes upon employers. The instant action concerns the obligations that Title III of the ADA imposes upon those who construct and operate public accommodations such as indoor arenas. The cornerstone of Title III is 42 U.S.C. § 12182 (a), which mandates that persons with a disability receive the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ...”

The locus of this action is the “Rose Garden,” a multi-purpose indoor arena in Portland, Oregon. The Rose Garden was designed for first occupancy after January 26, 1993, and the last building permit, or permit extension, was certified after January 26, 1992. Consequently, the Rose Garden is subject to the rules governing “new construction.” 42 U.S.C. § 12183 (a)(1); 28 CFR § 36.401 (a)(2). The principal tenants of the Rose Garden are the Portland Trail Blazers NBA basketball team and the Portland Winter Hawks of the Western Hockey League.

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The arena also is used for a wide variety of other events, including ice shows, concerts, soccer, indoor football, and the circus. Plaintiffs contend that numerous features of the Rose Garden’s construction, design, and operation violate the ADA as well as ORS 30.675 and ORS 659.425, the parallel state laws forbidding discrimination against persons with a disability.

The plaintiffs in this action are Robert Pike, a Portland attorney with a disability which requires that he use a wheelchair, and Independent Living Resources (“ILR”), a non-profit corporation “organized ... for the purpose of promoting the rights and needs of persons with disabilities for full inclusion and equal access in all aspects of life and providing education, training, and independent living services to persons with disabilities.” Complaint ¶ 5. The defendant is the Oregon Arena Corporation (“OAC”), a private company that built, owns, and operates the Rose Garden arena. The United States Department of Justice (“DOJ”) has participated in these proceedings as

amicus curiae.

All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636 (e). This court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.

Presently before the court are plaintiffs’ ■ motion (# 36) for partial summary judgment, defendant’s motion (#45-1) to dismiss portions of the case as moot, defendant’s cross-motions (# 45-2 and # 62) for partial summary judgment, defendant’s motion (# 42) to bar the testimony of plaintiffs’ experts and to strike their report, defendant’s motion (# 59) to compel plaintiffs’ expert James Terry to answer certain questions posed during deposition, defendant’s motion (# 129) to strike plaintiffs’ supplemental concise statement of facts or individual paragraphs thereof, and plaintiffs’ motion (# 135) to strike the affidavits of John Salmen, William Crockett, and Teresa Jacubowski.

II. MOTIONS FOR SUMMARY JUDGMENT

1.

Pattern and Practice

Plaintiffs have asked the court to rule “that there is a pattern of ADA violations in the Rose Garden Arena ...” Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment at 20.

3

However,

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the existence of a “pattern” or practice of violations typically is significant only in an action commenced by the United States Attorney General.

See

42 U.S.C. § 12188 (b)(1)(B); 28 CFR § 36.503 ;

Woolfolk v. Duncan

872 F.Supp. 1381, 1391 (E.D.Pa.1995).

In an action by a private party for violation of Title III of the ADA, this court may award only injunctive relief, not damages. 42 U.S.C. § 12188 ; 42 U.S.C. § 2000a-3(a). For that reason, in an action by a private” party alleging a violation of Title III of the ADA, the existence of a “pattern or practice” of discrimination is relevant only in limited circumstances,

e.g.,

to establish that the action is not moot, or that the plaintiff has standing, or that injunctive relief should be ordered because the violation is likely to recur.

Cf Atakpa v. Perimeter OB-GYN Associates,

912 F.Supp. 1566, 1573 (N.D.Ga.1994) (dismissing ADA claim for lack of standing because the plaintiff did not allege that he would again be subjected to the same illegal practice);

4

Hoepfl v. Barlow,

906 F.Supp. 317 (E.D.Va.1995) (dismissing action because there was no evidence that plaintiff would again be subject to the same violation). A pattern and practice of violations may also be relevant if the court is exercising its equitable discretion in fashioning a remedy for a violation of Title III.

Cf. Paralyzed Veterans of America v. D.C. Arena, LP,

117 F.3d 579, 589 (D.C.Cir.1997) (federal court may exercise some discretion in deciding what equitable relief to award for violations of Title III of the ADA).

For now, this court declines to decide whether there has been a “pattern” of ADA violations at the Rose Garden. Instead, the court will consider only whether a particular condition violates the ADA

2.

Mental

State:

The court also declines plaintiffs’ invitation to make findings regarding defendant’s mental state,

i.e.,

whether the alleged violations were committed intentionally, negligently, or innocently. With limited exceptions, the defendant’s mental state has little bearing upon whether the Rose Garden complies with the requirements of Title III of the ADA, at least in an action commenced by a private party.

Cf.

42 U.S.C. § 12188 (b)(5); 28 CFR § 36.504 (d) (“good faith” is a relevant consideration when imposing civil penalties in an action brought by the Attorney General). Either the Rose Garden complies with the ADA, or it does not.

The court may consider defendant’s good or bad faith when deciding what relief to grant in the event a violation is found. At times I also will discuss the decisions that led to the present state of affairs if they shed light on the reasons why a particular design was selected and whether it would have been possible for defendant to have more fully complied with the ADA. Defendant’s mental state may also be relevant to the extent defendant contends that it detrimentally relied upon an interpretation of the ADA regulations prior to the one presently advocated by DOJ.

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3.

Dispersal of Wheelchair Seating:

In drafting Title III of the ADA, Congress painted with a broad brush and then directed the Attorney General to promulgate regulations to implement the law. 42 U.S.C. § 12186 (b). Those regulations were to include design standards, which must be “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board,” commonly referred to as the “Access Board.”

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42 U.S.C. § 12186 (c). The guidelines issued by the Access Board are denominated the “ADA Accessibility Guidelines” (“ADAAG.”) The design standards enacted by the Attorney General are identical to the ADAAGs, but are denominated as “Standards.” Despite the technical distinction, the two terms often are used interchangeably.

Standard 4.1.3(19)

6

specifies the number of wheelchair spaces that must be provided in an “assembly area” such as a stadium, indoor arena, or theater. For assembly areas with a seating capacity over 500, the applicable formula is “one percent plus one,” meaning the number of wheelchair spaces must be equal to one percent of the total seating capacity (plus one additional wheelchair space.) The seating capacity of the Rose Garden is approximately 19,044,

7

so there must be 191 wheelchair spaces (one percent of 19,044, plus one.)

The parties agree that — at least on paper — there are 191 wheelchair spaces at the Rose Garden. However, plaintiffs contend that many of those spaces exist solely on paper. Plaintiffs also contend that the wheelchair spaces are improperly coneentrat-ed in “wheelchair ghettos” in comparatively undesirable locations of the arena. Plaintiffs’ Reply Memo in Support of Summary Judgment at 11.

A. Legal Standards:

“Providing services in the most integrated setting is a fundamental principle of the ADA.” H.R.Rep. No. 101-485(11) at 102,

reprinted at

1990 U.S.C.C.A.N. 303, 385.

See also

H.R.Rep. No. 101-485(111) at 56,

reprinted at

1990 U.S.C.C.A.N. 445, 479. To implement that purpose, DOJ has promulgated Standard 4.33.3, which provides that:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided

8

so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.

DOJ interprets Standard 4.33.3 to require both vertical and horizontal dispersal,

ie.,

in large arenas and stadiums such as the Rose Garden the wheelchair locations must be distributed in a manner that approximates the overall distribution of seats in the facility.

9

*709

By contrast, defendant contends that it is enough to provide at least

some

wheelchair spaces in each ticket price category.

DOJ’s interpretation of the dispersal requirement in Standard 4.33.3 is consistent with the language of the regulation and the overall objectives of Title III of the ADA, and will be enforced by this court. Whatever merit there might be to defendant’s argument in a smaller facility — a question I do not decide today — that argument cannot carry the day in a large arena such as the Rose Garden. I agree that wheelchair spaces ordinarily must be available in each ticket price category. However, that by itself will not always be enough to completely satisfy the requirement in Standard 4.33.3 that in large assembly areas wheelchair spaces must be an integral part of the seating plan and be dispersed so as to provide wheelchair users with a choice of sightlines and ticket prices comparable to those available to the general public.

Without a requirement for horizontal and vertical dispersal, an arena operator could simply designate a few token wheelchair seats in the better seating areas, and duster the majority of wheelchair seats in the last row or in other undesirable locations. That is contrary to the Congressional intent in enacting Title III of the ADA.

Cf. Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C.,

950 F.Supp. 393, 398, 404 (D.D.C.1996) (design by which wheelchair spaces were “ghettoized in the two end zones with only a few in the front rows and almost none in the center court sections” did not comply with dispersal requirements of Standard 4.33.3),

aff'd,

117 F.3d 579 . The ADA’s dispersal requirements also could be circumvented merely by adjusting ticket prices for specific groups of seats in the same manner that electoral districts have long been subject to gerrymandering.

10

Such tactics undoubtedly would be challenged by groups such as plaintiffs, and the courts would then be asked to decide the validity of the ticket pricing plans for each basketball or hockey team in the nation. As fascinating a task as that might be, it would require the courts to intervene in decisions that are better left in the hands of arena operators.

I therefore reject defendant’s contention that an arena operator satisfies its ADA obligations as a matter of law merely by providing some unspecified Humber of wheelchair spaces in each price category. While absolute homogeneity is usually neither feasible nor required — since wheelchair users cannot navigate stairways or the narrow passage leading to a seat in the middle of a row— neither may the arena operator relegate most wheelchair users to the dark corners of the arena. Rather, in large arenas such as the Rose Garden, the wheelchair locations must be distributed in a manner that roughly approximates the overall distribution of seats in the arena.

Cf. Paralyzed Veterans,

950 F.Supp. at 402 (wheelchair spaces must be “dispersed throughout the bowl”) and at 404 (“Dispersal requires a choice of various seating areas, good and bad, expensive and inexpensive, which generally matches those of ambulatory spectators” and “there must be spaces scattered throughout a sufficiently representative number of sections in the seating bowl to provide comparable choices.”)

Plaintiffs contend that the wheelchair locations at the Rose Garden are not evenly distributed around the arena, but instead are unevenly clustered on Level 7 and in the corners of the end zones, and that most of

*710

the wheelchair spaces exist only on paper. I will address each of those complaints in turn.

B. Level 7:

The original design for the Rose Garden did not contemplate siting wheelchair spaces on Level 7. There was to be — and still is — no permanent seating on Level 7. Rather, there is some mechanical equipment, facilities for the media, and a fairly narrow concrete walkway high above the arena that was earmarked as a possible overflow area for standing room only crowds. A seating plan dated June 18, 1993, listed “117 standing and 117 temporary seating at Level 7.” Another seating plan, dated July 8, 1992, indicated that — in lieu of some of that standing and temporary seating — Level 7 also would serve as a “hockey press/NBA overflow press” area, which means Level 7 actually was intended to accommodate even less than 234 patrons.

The decision to site 33 wheelchair spaces

11

on Level 7 was born of desperation, after defendant realized that its existing wheelchair seating plan did not comply with ADA requirements. Standard 4.33.3 mandates the provision of a seat for ah ambulatory companion which shall be located “next to” the wheelchair space. DOJ has interpreted Standard 4.33.3 to require that the companion seat be side-by-side with the wheelchair space, and not in a different row of seats. However, defendant’s architect — the firm of Ellerbe Becket, Inc.-designed the Rose Garden so that the wheelchair spaces would be in one row, on a concrete slab, and the ambulatory companions would sit in another row in front or behind. That clearly is not the design that is contemplated by Standard 4.33.3.

The rationale underlying the original front-to-back design is not difficult to discern. Defendant and Ellerbe Becket determined that if a companion seat was provided side-by-side with each wheelchair space, it would result in a substantial decrease in the seating capacity of the Rose Garden — a loss of 790 seats, according to defendant’s own estimate made in early 1992.

See, e.g.,

Letter from Ellerbe Becket to Robert Collier, dated Feb. 5,1992. That is because the square footage reserved for wheelchair users would have to be significantly increased in order to also provide room for their companions.

On or about February 5, 1992, Ellerbe Becket and defendant chose the front-to-back design over the side-to-side design, in order to gain (or to avoid the loss of) 790 ambulatory seats. Defendant and Ellerbe Becket were aware that the disabled community was interpreting Standard 4.33.3 to require a side-to-side design; however, Ellerbe Becket assured defendant that this was something “that the disabled community always asks for but does not get.” Collier Depo. at 205. Defendant’s senior project manager, Bob Collier, testified that he did not consult with the disabled community regarding the placement of the companion seat. Rather,

We were told it was not a case of [what the disabled community] wanted. It was a case of what was required by law. And we were told at the time by Ellerbe that [what] was required was option one. And so we said, “Well, if that’s what is required then that’s — we can’t voluntarily lose this many seats.”

Collier Depo. at 111.

The correct placement of the companion seat was one of the concerns that Ellerbe Becket raised in a letter to defendant dated March 18, 1993. Ellerbe Becket warned defendant that it was proceeding on the assumption that the companion seat did not have to be side-to-side, but that there were other possible interpretations of the law. El-lerbe Becket urged defendant to seek legal counsel regarding that issue. Defendant chose not to do so. Collier Depo. at 131; Crockett Depo. at 104-05.

On July 15, 1993, Gordon Wood

12

sent a draft “ADA Client Letter” to Ellerbe

*711

Becket’s project managers. The letter was a model for a letter that each project manager was to send to his or her respective clients, if they had not- done so already. In that letter, the client was to be advised that DOJ had recently reviewed the design for a project that Ellerbe Becket was designing and had expressed the agency’s views on various issues. Among other things, the client was to be cautioned that DOJ has “interpreted the term ‘next to’ to mean side-by-side with the wheelchair location, not just in close proximity, in front of, or behind.” The client was also to be told that:

This is the first time we have received an opinion from the Dept, of Justice. Even though the opinions of the four individuals who reviewed the other project do not carry the force of law, since the Department is mandated by the law to be the enforcement agency, we feel it is prudent to respect their opinion absent contrary results from a court____ [W]e recommend that you have legal counsel review the law and the approach to compliance followed on the project.

The record does not disclose whether defendant actually received a copy of this letter, though on its face the letter was intended to be disseminated to clients such as defendant. In any event, Ellerbe Becket was defendant’s agent -with regard to the design of the Rose Garden. The information within this letter falls squarely within the subject matter of the agency, on a matter of obvious importance to the principal. Under longstanding principles of agency law, Ellerbe Becket’s knowledge regarding DOJ’s interpretation of the ADA standards is properly imputed to defendant as Ellerbe Becket’s principal.

At some time prior to July 15, 1993,

13

Ellerbe Becket knew the back-to-front design for the companion seats was contrary to DOJ’s interpretation of Standard 4.33,3. Nonetheless, defendant and Ellerbe Becket did not alter their design for the Rose Garden.

In March 1994, Ellerbe Becket told defendant that the companion seats must be side-by-side with the wheelchair seating. In several angry letters, defendant asserted that this was the first time it had learned of DOJ’s interpretation of the rule, and accused Ellerbe Becket of concealing its knowledge of that requirement. Ellerbe Becket responded that its knowledge regarding DOJ’s interpretation of the ADA was confidential and could not be disclosed to Ellerbe Becket’s clients.

14

Regardless of who was responsible, the decision that companion seats had to be side-to-side resulted in an immediate crisis. Fewer wheelchairs could now be accommodated within each designated wheelchair area. As a result, defendant was short by as many as 80 wheelchair spaces. Defendant could designate additional wheelchair locations within the primary seating bowls, but that would mean the loss of approximately 12 regular seats for each additional wheelchair space created. Collier Depo. at 121. To minimize the loss of standard seats, defendant designated the concrete walkway on Level 7 as a

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wheelchair seating area and thereby “found” 38 new wheelchair/eompanion pairs. Collier Depo. at 120; Letter from Allison to Collier (Feb. 25,1994.)

15

Defendant has attempted to characterize Level 7 as an “integral” part of the Rose Garden seating plan.

16

It is not. The designation of 33 wheelchair spaces on Level 7 of the Rose Garden makes a mockery of the ADA’s dispersal requirements. Level 7 is isolated from the main seating bowl, and primarily houses mechanical equipment and an overflow press area. There are no fixed seats on Level 7, nor were any ever planned. While there was some talk of using Level 7 as an overflow area, Level 7 was never designed to accommodate 3,300 portable seats or standing patrons, which is the number that would be required to justify 33 wheelchair spaces based upon a ratio of one wheelchair space for every 100 standard seats. Rather, the maximum occupancy that was projected for Level 7- — even in its capacity as an overflow area — was 234 spectators (117 standing, and 117 seated in folding chairs). Data furnished by defendants indicates that — apart from the 33 wheelchair locations and 33 companion seats — there are just 16 ambulatory seats on Level 7 (not counting any infilling that may occur if the wheelchair spaces are not sold). Clearly this is not what was intended by the requirement that wheelchair spaces must be an integral part of the overall seating plan.

Defendant is entitled to credit for one or two wheelchair spaces on Level 7, based upon the number of ambulatory patrons that potentially can be accommodated on that level. Indeed, to the extent ambulatory seating is available on Level 7, defendant is required to provide a proportional number of wheelchair spaces on that level. The problem is not that defendant has provided any wheelchair spaces on Level 7, but rather that defendant has placed a disproportionate percentage of the total number of wheelchair spaces on that level, while failing to provide a sufficient number of wheelchair spaces in other parts of the arena.

During the remedial phase of this case, the court will entertain any arguments that defendant may have for crediting a

few

additional wheelchair spaces on Level 7 in addition to that to which defendant would be entitled by a strictly proportional calculation based upon the number of ambulatory seats on that level. However, the court cannot envision any scenario by which defendant would be entitled to credit for 33 wheelchair spaces on Level 7, or anywhere close to that number. The placement of 33 wheelchair spaces on Level 7 simply cannot be reconciled with the dispersal requirements of Standard 4.33.3. Defendant in essence has created a “wheelchair ghetto” (to use plaintiffs’ terminology), consigning wheelchair users to a special floor in the proverbial “nosebleed” section so that defendant may maximize the number of ambulatory seats in the more desirable locations in the Rose Garden. This is precisely the sort of discrimination that Title III was intended to abolish.

Of course, there is nothing to prevent defendant from providing more wheelchair locations than the law requires. For that reason, defendant may continue to provide 33 wheelchair spaces on Level 7, if it desires. However, only a fraction of those spaces will be

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credited towards compliance with the requirement that defendant provide one wheelchair space for every one hundred ambulatory seats throughout the entire arena. In addition, wheelchair users may not be relegated to Level 7, but must be provided a full range of seating options in all areas of the arena.

I will not decide today precisely how many Level 7 wheelchair spaces will be credited towards the one percent requirement, or what remedy I will order to redress this violation. I determine only that the placement of 33 wheelchair spaces on Level 7 violates the dispersal requirements of Standard 4.33.3, and that — after subtracting the excess spaces on Level 7 — the arena as a whole violates the “one percent plus one” requirement contained in Standard 4.1.3(19).

Defendant argues that the one percent requirement should not be enforced, since present usage patterns indicate that comparatively few wheelchair users attend Rose Garden events. Plaintiffs respond that the low attendance is the result of the poor sight-lines from wheelchair spaces; why should wheelchair users pay $65 to watch the back of the person in the next row? An additional consideration is that the arenas being built today should still be in service twenty or thirty years from now, during which time the demand for wheelchair spaces may well increase as the “baby boomer” generation ages and as improvements in wheelchair-fiiendly modes of transportation permit more wheelchair users to readily attend public events. It is far easier (and less costly) to design arenas with extra wheelchair capacity, some of which can be in-filled if not presently needed, than to belatedly create new wheelchair capacity if demand increases in the future.

See

H.R.Rep. No. 101-485(111) at 60,

reprinted at

1990 U.S.C.C.A.N. 445, 483 (“Because it costs far less to incorporate accessible design into the planning and construction of new buildings and of alterations, [as compared to retrofitting existing structures], a higher standard of ‘readily accessible to and usable by1 persons with disabilities has been, adopted in the ADA for new construction and alterations.”)

In any event, this court did not establish the one percent requirement, and defendant has cited no authority that this court has any discretion to waive that requirement. Consequently, defendant’s failure to comply with the one percent rule is a violation of Standard 4.1.3(19). ■

Defendant also points to a report by the “ADAAG Review Federal Advisory Committee” that recommends a reduction in the number of required wheelchair spaces. However, this recommendation does not have the force of law. Rather, it is the report of an advisory committee to the Access Board. Even if the Access Board eventually adopts that recommendation, it would then be subject to the notice and comment requirements of the APA. Any change in the law may also require approval by DOJ.

17

The advisory committee report may have some persuasive value, but it does not displace settled law that expressly mandates a “one percent plus one” formula for provision of wheelchair spaces in large arenas.

18

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Finally, defendant contends that it placed the 33 wheelchair spaces on Level 7 at the express request of the disabled community. That is not a valid excuse for ignoring the requirements of the Title III regulations. The regulations establish a national standard for minimum levels of accessibility in all new facilities. As a general rule, those designing or operating public accommodations are not free to pick and choose which of these legal requirements to follow, and which to ignore.

19

In addition, thé record offers no support for defendant’s contention that the 33 wheelchair spaces were placed on Level 7 at the request of the disabled community. The documents cited by defendant — hearsay minutes of meetings prepared by defendant, most likely with an eye towards litigation and, thus, of dubious evidentiary value — reflect only that members of the disabled community recommended that defendant voluntarily provide wheelchair seating in

excess

of the “one percent plus one” required by Standard 4.1.3(19). There may have been some discussion of placing wheelchairs on Level 7, but only in the context of an emergency overflow wheelchair area to be used for special events when more wheelchair users might attend than could be accommodated by the everyday wheelchair seating.

20

There is no evidence that the disabled community suggested that a substantial percentage of the wheelchair seating required to satisfy the one percent requirement also be placed on Level 7. Moreover, those minutes are from community meetings that occurred more than two years before defendant belatedly decided to place 33 wheelchair spaces on Level 7.

Furthermore, as discussed elsewhere in this opinion, other contemporaneous documents and the deposition testimony of defendant’s own employees establish that the sole reason for placing 33 wheelchair spaces on Level 7 was to avoid placing wheelchairs in the more desirable seating locations. In addition, defendant’s senior project manager, Bob Collier, testified during deposition that defendant was not concerned with what representatives of the disabled community wanted, but was concerned only with satisfying the minimum requirements of the ADA. Collier Depo. at 111, 137-38, 205. His testimony belies defendant’s eleventh hour contention that it placed a large percentage of wheelchair seating on Level 7 at the request of the disabled community.

There is no genuine factual dispute. Plaintiffs are entitled to partial summary judgment as a matter of law on the question of whether the concentration of so many wheelchair spaces on Level 7 violates the requirements Standard 4.33.3 and whether, after subtracting the excess spaces on Level 7, the arena as a whole violates the “one percent plus one” requirement mandated by Standard 4.1.3(19).

C. Vertical and Horizontal Distribution:

Plaintiffs also contend that the wheelchair seating is clustered in the corners of the end zones,

21

which they deem to be inferior seats, and that the wheelchair seating is not distributed on each level of the arena in proportion to the total seating on that level. Defendant concedes that the Rose Garden’s wheelchair seating is not uniformly distributed, but contends' that exact proportionality is not required. However, the present scheme is a far cry from exact or even rough proportionality.

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The record indicates that 124 of the Rose Garden’s 191 wheelchair spaces: — or 65 percent — are located in the corners of the end zone. Another 17 percent (33 of 191) of the wheelchair spaces are located on Level 7. Together, more than 82 percent of the Rose Garden’s wheelchair spaces are clustered in those locations. Just 18 percent of the wheelchair spaces are distributed throughout the remainder of the arena. The numbers become even more lopsided after omitting wheelchair spaces that exist solely on paper because those spaces have been infilled with conventional seats (which will be discussed later in this opinion.)

There are no wheelchair locations at all behind the goal or basket; if one draws an imaginary line extending the sidelines of the basketball court up the seating bowl as far as the roof, there is not a single wheelchair location between the sidelines. There also are comparatively few wheelchair locations at mid-court or anywhere along the sidelines, and — as will be discussed below — most, if not all, of those wheelchair locations exist only on paper.

The undisputed evidence suggests that the clustering of wheelchair seating in the corners of the end zone resulted, in large part, from defendant’s efforts to create approximately 80 additional wheelchair spaces after learning that the existing design for the companion seats violated the ADA. The evidence also shows that the corners of the end zone were chosen as the site for the additional wheelchair locations because defendant did not want to place wheelchairs in the more desirable seating areas.

A memorandum dated March 22, 1994, from defendant’s chief project manager, Bob Collier, to other senior project managers, listed several options for locating additional wheelchair seats at the Rose Garden. One of those options was to install wheelchair seats in place of a camera area on one side of center court, and in place of a comparable row of seats on the other side of center court. This option had been recommended in a March 15, 1994, memorandum to defendant from Ellerbe Becket, which concluded that the revision “should be acceptable to the NBA.”

22

However, in his March 22 memorandum, Collier recommended that defendant not “pursue this revision, as it reduces our ability to accommodate press adequately,

as well as removes prime seats from the base mix.”

(emphasis added). On March 29,1994, Ellerbe Becket wrote Collier:

At your direction, we have not included the previously suggested revisions to seating areas on the west side of the court at Level Two.

This decision tends to locate a greater majority of wheelchair positions in “end zones,” which may not be viewed favorably to some interpreters of ADA

(emphasis added). In other words, defendant made a conscious decision to place most of the additional wheelchair seating in the corners of the end zones, or up in the “nosebleed section” on Level 7, so the wheelchair seating would not displace “prime seats” at center court and a press area.

See also

Allison Depo. at 151-52 (Ellerbe Becket showed defendant several locations other than Level 7 where wheelchair spaces could be added, such as the west side of the arena at the main concourse level, but defendant rejected those alternatives and directed El-lerbe Becket to put 28 wheelchair spaces on Level 7.) This also appears to explain why there are not enough wheelchair spaces in the 100 level and preferred seating areas.

It is not necessary for this court to decide whether seats in the corners of the end zone or in the rafters of the arena are in fact less desirable than seats directly behind the basket or at mid-court. That is a matter of personal preference. The issue here is one of comparable choices being available to persons with disabilities. Defendant has offered no valid excuse for its failure to provide wheelchair spaces in entire sections of the arena.

Plaintiffs also have identified problems with the vertical distribution of wheelchair spaces at the Rose Garden. I previously concluded that defendant had improperly placed 33 wheelchair spaces on Level 7.

*716

Plaintiffs point out that, in the basketball configuration, there are proportionately too few wheelchair seats in the 100 level of the lower concourse and in the preferred seating. There are 5,264 seats on the 100 level, but only 38 wheelchair spaces. Approximately 52 wheelchair spaces should have been provided on that level of the arena if the wheelchair seating is to be distributed in a manner that is roughly proportionate to the overall distribution of seating at the Rose Garden,

ie.,

one percent of 5,264.

Absolute proportionality in the number of wheelchair spaces on each level is not required; some leeway must be permitted for design purposes. Unfortunately, neither the Access Board nor DOJ has seen fit to provide arena designers with much guidance regarding the degree of leeway that is permitted. In designing a quarter-billion dollar arena, the owner and designer understandably would like a definitive standard. They may not necessarily like the standard, but at least there will be a goalpost against which to measure their design, and some assurance that the design will not later be found to be in violation of the ADA.

In the absence of any definitive statement by DOJ or the Access Board, of necessity this court must define its own standard, consistent with the text and purposes of the ADA and its enabling regulations, and the reasonable interpretations that have been given to those laws by the agencies charged with their implementation and enforcement. The court intends for this to be an interim standard, serving only until the Access Board and DOJ provide a more detailed statement of what arena designers must do to satisfy the dispersal requirements.

Until that occurs, the' court concludes that an arena the size of the Rose Garden is presumptively in compliance with the vertical dispersal requirement for wheelchair seating if the deviation from absolute proportionality does not exceed ten percent (or one wheelchair space, which ever is greater). In other words, if absolute proportionality (ie., one percent of the ambulatory seating capacity) would require that 52 wheelchair spaces be placed on a particular level of the arena, the vertical dispersal requirement is satisfied by placement of as few as 47 or as many as 57 of the required

23

wheelchair spaces on that particular level. Of course, the total number of wheelchair spaces in the arena still must satisfy the “one percent plus one” standard. In addition, the “safe harbor” rule articulated here pertains only to the quantity of wheelchair spaces that are required on each level of the arena, and not to the distribution of those wheelchair spaces within each level which may be subject to additional requirements.

If the vertical dispersal of the wheelchair spaces deviates by more than ten percent from the target number, that is not a

per se

ADA violation, but the burden falls upon the arena’s owner or designer to justify the design and to demonstrate that they could not have more fully complied with the vertical dispersal requirement. That is a difficult burden to discharge, since the court begins with the strong presumption that it is possible to fully comply with the dispersal requirements.

There are only 38 wheelchair spaces on the 100 level of the lower concourse of the Rose Garden, a deviation of 27 percent from the 52 spaces that should have been provided and well outside the permissible range of 47 to 57 spaces. That falls far short of the mark. Likewise, there are 1,728 “preferred” seats at the Rose Garden, but only 12 wheelchair spaces. Absolute proportionality would mandate 17 wheelchair spaces on that level (one percent of 1,728.) The ten percent deviation rule allows a range of between 15 and 19 wheelchair spaces. Again, the facilities at the Rose Garden fall short of the mark, departing 29 percent from the standard. Defendant has offered no valid excuse for failing to provide a sufficient number of wheelchair spaces on the lower levels of the Rose Garden.

I conclude that the present design of the Rose Garden violates both the horizontal and

*717

vertical dispersal requirements of the ADA and its implementing regulations by improperly clustering the great majority of wheelchair spaces in certain parts of the arena, while few or no wheelchair spaces are available in the remainder of the arena.

At the same time, I reject some of the more extreme interpretations of the ADA that have been proposed. Although one goal of the ADA is to minimize the disparity between those persons with and without disabilities, the fact remains that wheelchair customers do differ from ambulatory customers in some important respects. Defendant did not create those distinctions, nor can it entirely eliminate them. Modern arenas are primarily vertical in orientation, a place where spectators often must ascend stairs to reach their seats. To some degree, these obstacles can be surmounted by providing elevators and by locating wheelchair spaces on accessible routes. Nonetheless, these physical constraints preclude mathematical homogeneity in the distribution of wheelchair seating. Moreover, in a multi-purpose arena such as the Rose Garden, in which there are many unique configurations, it may not always be feasible to provide front row wheelchair seats for every single event as plaintiffs have demanded.

24

The court also acknowledges that in designing and operating this arena, defendant had to balance many concerns, only one of which was meeting the needs of wheelchair users. Defendant also had to be concerned,

inter alia,

with designing an arena that met the needs of those spectators not in wheelchairs — including some with other disabilities such as vision and hearing impairments. Defendant had to comply with fire and building codes, and to control costs so it was feasible to build the arena at all. The court will take such factors into account in deciding what remedy to require in this case, and in assessing the extent to which defendant can further disperse wheelchair locations at the Rose Garden and provide persons in wheelchairs with the full range of seating choices that are available to ambulatory patrons.

Still, the fact remains that a disproportionate amount — 82 percent of the wheelchair seating at the Rose Garden is clustered-in the corners of the end zone or high up on Level 7. That is unacceptable in the design of a new arena such as the Rose Garden, and it does not comply with the requirements of Title III of the ADA and its enabling regulations.

D. Availability of Wheelchair Seating:

Until this point, I have been considering the adequacy of the Rose Garden’s wheelchair seating as it exists on paper. A related issue is whether those wheelchair spaces exist only on paper, or if they are in fact available for use by persons with disabilities.

Notwithstanding the colorful charts furnished by defendant which depict numerous wheelchair spaces, it appears that the only time many of those wheelchair locations were actually available for use by wheelchair patrons was on the day that the court toured the Rose Garden to inspect the wheelchair seating arrangements. The record evidences a policy and practice of systematically “infilling” the wheelchair locations with portable tiers of conventional seats for use by ambulatory patrons.

The primary motivation for infilling is economic. In an arena such as, the Rose Garden, wheelchairs occupy more space than conventional seats, due to their size, the necessity of providing a wide aisle and room in which to maneuver, and the requirement to provide a companion seat next to each wheelchair space. However, the arena operator is precluded from charging wheelchair users a higher price commensurate with the additional space that is consumed.

See

28 CFR § 36.301 (c) (public accommodation may not impose a surcharge only on persons with disabilities to cover the cost of compliance with the ADA).

See also

Department of Justice, Americans with Disabilities Act Title

*718

Three Technical Assistance Manual (hereafter, “TAM”) (1993 and 1994 supp.) § III— 4.1400 and § III-4.4600 (expressing DOJ’s position that “[p]eople with disabilities may not be subjected to additional charges related to their use of a wheelchair.”)

For Trail Blazers games at the Ros'e Garden, at least 133 of the wheelchair/companion pairs are routinely infilled with 1,028 conventional seats. Defendant’s Submission in Response to Request from the Court at 8-9. Many of those conventional seats are priced at between forty-seven and eighty .dollars, or more. Defendant’s Ex. 6. Extrapolating from those numbers, infilling 133 wheelchair spaces with 1,028 conventional seats yields an additional fifty thousand dollars or so in ticket sale revenue for each Trail Blazers home game — -and there are at least forty home games per Season (and more if the Trail Blazers make the playoffs.) Conversely, if the Trail Blazers do not infill those wheelchair spaces, they potentially stand to lose over two million dollars in ticket revenues each season.

25

To those sums must be added the revenue generated by an extra thousand customers for the arena’s concession stands, souvenir vendors, and restaurants.

These numbers provide defendant and its principal tenants with a powerful incentive to infill as many wheelchair spaces as possible. For the same reason, plaintiffs understandably fear that defendant may discourage attendance by ■ wheelchair users, limit their choice of seats, and steer wheelchair fans to less expensive and less desirable seats. This is one of the most significant issues concerning the design and operation of the Rose Garden yet, to date, there is very little law defining the rights and obligations of the respective parties-under these circumstances.

The Title III regulations próvide that “[rjeadily removable seats-may be installed in wheelchair spaces when the 'spaces are not required to accommodate wheelchair users.” Standard 4.33.3. The question presented here is whether the practice in the Rose Garden exceeds the bounds of what is permissible.

(i) Is OAC Responsible for Infilling and Ticket Sale Policies?

At the outset, I acknowledge defendant’s protest that decisions regarding infilling, ticket sale policies, and other operational matters are made by individual event promoters' and not by defendant OAC, which owns and operates the building. I do not find that distinction to be persuasive, at least on the facts of this case. The issue here does not concern a defined space leased to a private entity, such as a restaurant, an issue that I will address elsewhere in this opinion. Nor is this a case where a promoter for a single event took some action that allegedly violated the ADA. Rather, the policies and practices at issue here are pervasive, particularly on the part of the building’s primary tenant, the Portland Trail Blazers.

Defendant, as the landlord, has the ability to alter the challenged policies and practices. These policies and practices go to the very heart of the arena’s principal purpose and the issue of whether this public accommodation complies with the requirements established by the ADA. I also note the extremely close relationship between defendant and the Trail Blazers, including overlapping ownership and key management officials. Furthermore, some of the challenged ticket sale policies are included :in the seating plans drawn up by- defendant as early as July 9, 1992, three years before the arena opened for business. The same ticket sale policies are included in both the basketball and hockey seating plans. It appears to have been defendant, not the Trail Blazers, that formulated those policies. At a minimum, defendant actively participated in their design and implementation. In its briefs, defendant even describes these policies as “OAC’s policy, which is followed by the Trail Blazer’s.” Defendant’s Submission in Response to Request from the Court at 5. See also Defendant’s

*719

Submission in Response to the Court’s Request of August 21,1997, at 2 (“Under OAC’s policy regarding the sale of modified aisle seats, which is followed by the Trail Blazers ...”)

In addition, employees of defendant have assisted in implementing those practices,

e.g.,

by installing tiers of standard seats in designated wheelchair locations. Finally, for purposes of this claim, I am considering only whether to order injunctive relief, not whether to hold defendant hable for damages (which are not available under Title III of the ADA). I conclude that OAC is a proper defendant regarding this issue and that it is appropriate to address the challenged policies and practices in the context of this case,

(ii) Do the Infilling and Ticket Sale Policies at the Rose Garden Violate the Title III Regulations?

(a) Season Tickets and Long-Term Contracts:

The vast majority of tickets for Trail Blazers games are sold on a season ticket basis.

See

Defendant’s Submission at 6 (“The Trail Blazers business plan was to sell all but 1,500 of the seats in the Arena on a season ticket basis.”) The more desirable seats are even more restrictive, requiring purchase of a multi-year contract for five, seven or nine years. Isaac Depo. at 45 (“[A] great percentage of our ticket holders are on a multi-year purchase basis, which becomes more than a right of first refusal. They’ve contracted to purchase their tickets for the next year.”) Of the remaining seats, some are sold in multi-game packages, while others are available for individual games.

According to information furnished by defendant, in May 1994, more than a year before the Rose Garden was operational, future season tickets (at the Rose Garden) were offered to all current holders of season tickets at the Memorial Coliseum (which was home to the Trail Blazers before the Rose Garden was built.) Next, future season tickets were offered to those who already were on the waiting list to buy season tickets at the Coliseum. If there were not enough conventional seats available in a particular section, the wheelchair seats were replaced with conventional seats which were then , sold to ambulatory patrons on the waiting list, The Trail Blazers next offered additional season tickets to 'those who were current season ticket holders at ■ the Coliseum. Again, wheelchair seats were replaced by conventional seats and sold to ambulatory patrons. Finally, any remaining season tickets were offered to the general public, including those persons with disabilities.

The effects of this policy were predictable. Most seats for Trail Blazers games at the Rose Garden have been sold on a season ticket basis (or longer) to those who were existing season ticket holders at the Coliseum, few (if any) of whom use a wheelchair. Once a seat is sold on a season ticket basis, the holder has the right (or in many eases, the obligation) to renew that ticket each year, and most do renew.

See, e.g.,

Isaac Depo. at 45. ' Season ticket holders are entitled to renew their subscription each year notwithstanding that an ambulatory patron is occupying a designated “wheelchair” space and without regard to whether that space has been requested by a person using a wheelchair.

The end result is that most wheelchair locations in the Rose Garden exist only on paper, having been infilled with conventional seats and sold to ambulatory patrons on a season ticket or longer basis. Defendant admits that 27 of the 40 wheelchair sections at the Rose Garden have been “in-filled completely.” Defendant’s Submission at 8. In view of the high renewal rate among season ticket holders, the effect of this policy is to permanently infill nearly three-quarters of the wheelchair sections at the Rose Garden, including all (or almost all) of the more desirable seats. Those 27 wheelchair sections contain 183 of the 191 wheelchair spaces at the Rose Garden (or 133 of 158 wheelchair spaces after excluding the 33 spaces on Level 7.) In other words, fully 84 percent of the non-Level 7 wheelchair spaces are routinely infilled for every game, and that is not counting additional infilling for individual games. Those 133 wheelchair spaces have been replaced by 1,028 ambulatory seats.

Id.

Standard 4.33.3 permits infilling of wheelchair spaces with

readily removable seats

*720

when the wheelchair spaces

are not needed

to accommodate wheelchair users. From a purely physical standpoint, the infilled seats at the Rose Garden are “readily removable.” As a practical matter, however, those seats are permanently assigned to ambulatory patrons and are not available to wheelchair users. The policies adopted by defendant and its principal tenant defeat the purpose for requiring those seats to be “readily removable.” Likewise, it is circular reasoning to say that those spaces are “not needed” to accommodate wheelchair users when anyone who inquired would be told that those spaces are not available.

Defendant argues that its policy does not discriminate against persons with disabilities because the season tickets were originally offered on the same basis to those with and without disabilities. The policy may be facially neutral, but its disparate impact is incontrovertible.

Cf

TAM §§ III-4.1100 and 4.2100 (1993 ed. and 1994 supp.) (listing examples of policies that.are facially neutral but nonetheless have a disparate impact upon persons with disabilities.)

That disparate impact is exacerbated by the manner in which season tickets are purchased and used and in which fans obtain single-game tickets. There undoubtedly are some devoted fans who purchase a season ticket and attend every home game during the season. However, the court takes judicial notice that it also is common practice to share a season ticket among several people, with each participant receiving a portion of the tickets for the season. Alternatively, season ticket holders may elect to attend some games, and give the tickets for the remaining games to friends, relatives, clients, business associates and co-workers, or else sell the undesired tickets. Such “surplus” tickets for individual Trail Blazers games have traditionally been sold through classified advertisements placed by season ticket holders or through other sources.

26

From the standpoint of an ambulatory patron, season tickets are fungible; there are over a million residents in the Portland metropolitan area who are physically able to use those tickets. By contrast, the option to share a season ticket, or to sell or give away unwanted tickets, is generally not available to wheelchair users, unless the person sharing the season ticket or receiving the surplus ticket also uses a wheelchair. It may also be more difficult for individuals who use a wheelchair to commit to buying an entire season’s worth of tickets, as opposed to a single game, because of the logistical problems that may be encountered in traveling to the arena.

Wheelchair users are similarly constrained in their ability to obtain tickets for individual games. An ambulatory patron who is not a season ticket holder, but desires to attend a game, may obtain a ticket from a friend, relative, or business associate who has a season ticket, or else purchase an excess “season” ticket for a single game through the classified advertisements or a ticket broker. Ambulatory patrons can use any of the thousands of “season” tickets that are sold for each game. Those in wheelchairs do not have that option. A wheelchair user cannot obtain an extra ticket from a friend, relative or business associate, or purchase a surplus ticket via the classified advertisements, unless the ticket happens to be for a wheelchair seat. That is extremely unlikely, since every (or almost every) season ticket in the entire Rose Garden has been sold to an ambulatory person, and the wheelchair spaces have been in-filled.

27

The nominally “equal” policy that has been applied here is inherently unequal. Those in wheelchairs are effectively precluded from

*721

obtaining any of the better seats for events such as Trail Blazers games and will continue to be excluded for the foreseeable future.

Various ideas have been suggested to help alleviate this problem. DOJ’s position is that defendant and its principal tenants should be prohibited from infilling wheelchair spaces unless the event is a complete sell-out,

ie.,

every conventional seat in the building has been sold, as opposed to merely every seat in a particular price category.

See

United States’ Responses to Questions Posed by the Court at 2 (“Before wheelchair locations can be replaced with other seating ... all other seats in the arena must first be sold.”)

I question whether that is the best solution to the problem presented here, at least with regard to the Trail Blazers as opposed to other individual events. Although attendance has slumped a little during the past few years along with the home team’s performance, historical patterns suggest that if necessary the Trail Blazers could sell every conventional seat in the house on a season ticket basis, albeit many of those tickets might then be resold through ticket brokers and other secondary markets on an individual game basis. Under the rule proposed by DOJ, once the arena is nominally a “sell out” the Trail Blazers could infill the wheelchair spaces and sell those seats on a season ticket basis to ambulatory patrons. The Trail Blazers would not be required to reserve any seats for wheelchair users. The net result would not be an improvement over the present circumstances.

Plaintiffs and DOJ have suggested that the right of first refusal to renew a season ticket for an infilled wheelchair seat should be conditioned upon that wheelchair seat not being requested by a wheelchair user. United States’ Response to Questions at 3. This proposal may be difficult to implement because infilling of wheelchair areas is not a one-for-one proposition. Defendant has replaced 133 wheelchair spaces with 1,028 conventional seats; consequently, the presence of even a single wheelchair may displace dozens of season ticket holders.

Another option is to prohibit defendant from infilling such a large percentage of the seating inventory on what essentially is a permanent basis. A representative selection of wheelchair spaces would not be infilled in advance, but instead would be made available by the game or at most a 3 or 4-game package, as opposed to á season-ticket or long-term contract. These tickets would be available to wheelchair patrons up until the day of the game, or perhaps 24-48 hours before. If those wheelchair spaces are not sold, they could then be infilled and made available to the general public.

In its briefs, defendant represented that the Trail Blazers already withhold some wheelchair seats from sale to ensure that tickets are available up until the day of the game for purchase by persons in wheelchairs. However, that representation was contradicted by defendant’s Vice President of Business Affairs, J. Isaac, who testified at deposition that there is no' policy that requires disabled seating be retained up until 24 — 48 hours before an event. “[0]ur policy is that if we’ve sold out the other nondisabled seating, we can go ahead and sell the disabled seating if there’s been no demand at that time ... [TJhere’s no policy that we have to retain [wheelchair spaces] up to a certain point in time.” Isaac Depo. at 45.

The court also observes that the great majority of the spaces allegedly reserved for wheelchairs are on Level 7.

See

Defendant’s Submission at 5 (“the Trail Blazers retain 17 wheelchair locations and 17 companion seats on Level 7 ... and several wheelchair locations in other parts of the seating bowl ... ”) That does not appear to be a representative selection of seating choices at the Rose Garden as a whole. Even assuming there is a policy of not infilling every last wheelchair space, it seems clear that the great majority of wheelchair spaces — and in particular those in desirable locations — are routinely infilled for every Trail Blazers game.

Furthermore, affidavits submitted by wheelchair users who attempted to obtain tickets for Blazer games suggest that — notwithstanding any alleged “policy” of setting aside spaces for wheelchairs — few, if any, wheelchair seats actually are available for purchase, or at least the ticket sales repre

*722

sentatives are not aware of the availability of those wheelchair spaces.

(b) Tickets for Individual Games:

On paper, wheelchair users can purchase tickets for individual Trail Blazers games or multi-game packages

(e.g.,

tickets for four games that are sold together.) However, plaintiffs have furnished affidavits from wheelchair users who attest that they attempted to purchase tickets and were told that there were no wheelchair tickets available at any location, or were steered to distant corners of the arena while ambulatory friends were able to purchase prime tickets for the same game. When the latter affiants arrived at the game, they allegedly discovered that the “unavailable” wheelchair seating was not occupied by other wheelchair users, but had been infilled with conventional seating. Some of those accounts are supported by affidavits from ambulatory patrons who claim to have witnessed these incidents and who were able to purchase tickets themselves for locations where wheelchair users were told that no seats were available. Defendant has responded that such incidents should not have occurred, but does not directly refute the allegations,

28

albeit that would be difficult to do given the nature of the allegations.

While not deciding at'this time whether such incidents did, or did not, occur, the court again observes that the design of the Rose Garden and the present ticket sale and operational policies furnish defendant with a powerful economic incentive to discourage wheelchair use. The court has heard different estimates, but it appears that each wheelchair/companion pairing can be replaced by between five and ten standard seats, depending upon the layout of the particular wheelchair area.

29

The design of the portable tiers means that replacement may be on an “all or nothing” basis,

i.e.,

if a designated wheelchair location has a capacity of three wheelchairs, the presence of even one wheelchair in that location may preclude installation of any replacement seating. As a general rule, the sale of even a single wheelchair ticket for a given wheelchair area effectively precludes the sale of dozens of conventional tickets.

30

Conversely, each wheelchair area that is not used can be replaced by up to 56 conventional seats, depending upon the size of the wheelchair area.

The economic incentives are obvious. If a wheelchair user purchases a ticket in the $80 section, it may cost defendant (or the event promoter) several thousand dollars in ticket revenues depending upon the number of conventional seats that could otherwise have been infilled in that wheelchair area. That revenue loss can be avoided if the box office informs wheelchair users that there are no available wheelchair seats for the event; the wheelchair sections can then be infilled and sold to ambulatory patrons. Alternatively, the revenue loss can be minimized by telling wheelchair users that there are no $80 seats available, but offering to sell the wheelchair user one of the $5 spaces on Level 7 or a $15 space in the upper deck. Another means to minimize the loss of revenue is by steering all wheelchair users to a few wheelchair locations, thereby freeing up the remaining wheelchair locations for infilling, albeit at the expense of reducing the choice of seats available to wheelchair users. These are precisely the sort of tactics that plaintiffs claim they were subjected to whenever they have attempted to purchase wheelchair tickets for events at the Rose Garden.

*723

Plaintiff Pike states that he attempted to purchase a wheelchair ticket on Level 7 for a Trail Blazers game, but was informed that all Level 7 tickets for the entire year had been sold out before the start of the season. After defendant filed a brief denying that allegation, Pike, says he again attempted to. purchase a wheelchair seat on Level 7 and was again informed that no wheelchair spaces were available. While some mistakes might be attributable to start-up problems with a new arena, the latest incidents recounted by Pike allegedly occurred in March 1997, well after the time when any start-up bugs should have been resolved and after that specific issue had been called to defendant’s attention in the course of this litigation.

Pike also recounts other occasions where he attempted to purchase tickets for Trail Blazers games and was told that no wheelchair spaces were available anywhere in the arena, but his ambulatory friend could purchase a conventional seat. After some telephone calls were placed to the Trail Blazers’ front office, Pike eventually was given a wheelchair space in the corner of the end zone, although he wanted and was prepared to pay for a wheelchair space at center court. Pike also recounts an unsuccessful attempt to purchase wheelchair tickets for a hockey game at the Rose Garden. He allegedly was told that none of the wheelchair spaces at center ice was available for any game during the entire season, and the best seat available for wheelchair users was in the corners of the end zone. However, Pike’s ambulatory companion was able to purchase a ticket for a conventional seat at center ice.

William Loyd has submitted an affidavit describing his attempt to purchase tickets for himself and two (apparently ambulatory) companions for a Trail Blazers game at the Rose Garden. Loyd was told that the only place where his party could sit together was on Level 7. When Loyd arrived at the game, howeyer, he discovered that there were only a few wheelchairs occupying the numerous designated wheelchair spaces in the rest of the Rose Garden; instead, those wheelchair spaces had been infilled with conventional seats to make room for ambulatory patrons.

31

Defendant has denied knowledge of any efforts to discourage attendance by wheelchair users or to steer them to specific sec- . tions. However, in view of the sizeable financial incentives involved, it might be even more surprising if such efforts have never occurred at the Rose Garden. DOJ recently deemed it necessary to expressly caution the NBA regarding such steering practices:

One of the problems that has frequently arisen stems from a design in which several adjacent wheelchair locations are replaced by a platform or series of risers with multiple standard seats. This design can cause significant operational difficulties, as it prevents placing any readily removable standard seats in a wheelchair seating area whenever even one wheelchair user requests to sit in that area. It is not, of course, an acceptable alternative either to attempt to discourage wheelchair users from sitting in that area, or to “steer” them into areas where seats have already been purchased by other wheelchair users, or to conceal from wheelchair users who seek tickets that locations are available in wheelchair seating areas where no wheelchair users have yet purchased tickets.

Letter to NBA Commissioner Stern (Oct. 22, 1996) at 3.

(c) Tickets for Other Events:

The arguments of the parties have focused upon the availability of tickets for Trail Blazers games.' However, problems with “steering” or excessive infilling may occur in connection with other popular Rose Garden events, such as concerts. The policy pro

*724

posed by DOJ would allow wheelchair spaces to be infilled with conventional seats only if the entire event is a sell-out. Defendant has proposed to infill wheelchair spaces with conventional seats as each category of tickets is exhausted.

An obvious problem with either proposal is the definition of a “sold out” event. The court takes judicial notice that, for popular events, large quantities of tickets may be purchased by ticket brokers for resale to the general public. An event may officially be deemed a “sell-out” even though tickets (for ambulatory patrons) still are readily available from the ticket broker. Wheelchair patrons would not have the same option, since the wheelchair spaces would have been infilled once the event was deemed a “sell-out.” It is unclear how the policies proposed by the parties would apply to this situation.

(d) Conclusion:

There are significant issues regarding infilling and ticket sale policies at the Rose Garden, particularly for Trail Blazers games but also for other events as well. Some of the alleged policies and practices, if proven to be true, may well constitute a violation of the ADA and its enabling regulations. DOJ has publicly taken a strong stance against “steering” and similar practices that limit the choices of wheelchair users.

See, e.g.,

Letter to NBA Commissioner Stern (Oct. 22, 1996.) On the other hand, it is understandable that an arena operator may seek to minimize the loss of seats and revenue by clustering several wheelchairs in a single wheelchair area— and infilling the remaining wheelchair locations — instead of each wheelchair occupying a different wheelchair area (that is designed to hold five or six wheelchairs) which effectively precludes infilling any of those wheelchair locations. This presents a classic public policy question: to what extent do the additional seating choices that would be available to wheelchair users outweigh the potential revenue loss to the arena operator, and vice versa?

Ideally, such policy questions should be decided either by Congress or by the administrative agency charged with implementing the statute, and not the judiciary. However, neither the statute nor the applicable regulation has delineated precisely where that line is drawn, and the parties have cited no other cases addressing this issue. Since this topic has been overshadowed by other matters in this case, the court will request additional briefing focused on the issues of infilling and ticket sale policies, the controlling legal standards and how they apply to this case, and the potential remedies if the court determines that the existing policies and practices violate the ADA. There may also be some factual disputes regarding the availability of tickets for wheelchair users and whether defendant or its principal tenants have engaged in “steering.” For now, neither side is entitled to summary judgment on these particular issues.

4.

Companion Seats:

Standard 4.33.3 provides that “[a]t least one companion fixed seat shall be provided next to each wheelchair seating area.” DOJ has interpreted this language to require that the companion seat be placed side-by-side with each wheelchair space, not in a different row. That is a reasonable reading of the regulation and will be followed by this court.

Most (but not all) of the conventional seats at the Rose Garden are either permanently attached to the floor or are part of large moveable tiers. By contrast, the companion seats at the Rose Garden are padded folding chairs. The conventional seats mostly bear the Irwin brand, while the companion seats bear the Clarín label.

A. Interpretation of Standard 4.33.3

Plaintiffs and DOJ contend that the companion seats at the Rose Garden violate Standard 4.33.3 because these are not “fixed” seats but portable folding chairs. They assert that the companion seat must be identical to the conventional seats used by the general public. Defendant counters that these Clarín folding seats are high-quality seats in their own right which are utilized for some of the most expensive tickets in the arena, such as concert floor tickets or court-side seats for basketball.

*725

The term “companion fixed seat” is not defined in the regulations. While the term “fixed” might be read to mandate that the companion seat literally be bolted to the floor, it is more likely that the term was intended to denote a standard seat used by an ambulatory patron as opposed to a wheelchair space. It is difficult to discern any rational justification for mandating that the companion seat literally be bolted to the floor. The purpose of the companion seat is to permit an ambulatory companion to sit with the wheelchair patron.-

See

H.R.Rep. No. 101-485(11) at 102,

reprinted at

1990 U.S.C.C.A.N. 303, 385 (noting that, historically, patrons in wheelchairs often have been forced to separate from family or friends during the performance). That purpose is accomplished regardless of whether the companion seat is bolted to the floor or whether the chair can be folded when not in use.

A quality folding chair has some advantages over a companion seat bolted to the floor because it provides greater flexibility. Instead of a rigid seating pattern of one wheelchair and one fixed companion seat, it is possible to accommodate a wide variety of potential seating configurations, such as three wheelchairs and one ambulatory companion, or vice versa. There also is evidence in the record that, for a variety of medical reasons, some wheelchair users may require extra space. That need can more easily be accommodated with a portable seat than one that is bolted to the floor. A portable chair also permits in-filling of standard seats if a wheelchair section is not being used. That is not to say that a seat that is bolted to the floor cannot also serve as a companion seat; rather, the question posed here is whether the companion seat

must

be affixed to the floor.

Plaintiffs argue that a portable folding chair may be moved around and, therefore, might not be present when it is needed for use. However, the same problem could arise with the use of removable “fixed” chairs, or if the section was infilled for another event and the temporary seating was not removed, or if the “fixed” companion chairs must be reconfigured for a configuration other than one wheelchair and one companion. For that matter, any patron may arrive at the event and discover that the prior occupant spilled a large soft drink on the seat, or that someone else is sitting in the assigned seat. In each case, the remedy is to ask an usher to fix the problem. The possibility that a companion seat might be moved does not justify requiring that they be bolted to the floor.

Plaintiffs also have made vague allusions to safety issues concerning folding chairs, but have not elaborated upon those concerns or provided evidence that these folding chairs are not as safe as a chair that is bolted to the floor.

Plaintiffs’ opposition to folding chairs might be better taken if defendant provided poor-quality folding chairs for companion seats, while all other spectators sat in plush chairs. That is not the ease. The folding chairs in question are not significantly less comfortable than the standard seats used in the-rest of the arena.

32

Indeed, plaintiffs all but concede that the Clarín seats would be permissible if they were attached to'the floor with “super Velcro.” Jan. 28, 1997 Tr. at 83.

33

The only other potential justification that plaintiffs have asserted for requiring a companion seat to be bolted to the floor is to ensure that the companion seat is identical in every respect to the other seats in the arena, including its appearance.

See, e.g.,

Jan. 28, 1997 Tr. at 75 (“The only reason that you have a fixed seat next to a wheelchair location is because you want folks in wheelchairs to be treated the same as everyone else ... It’s like being integrated into what’s going on. That’s the reason.”) and at 102 (“it’s

*726

about putting companions in the same kind of seats that look like and operate the same way or are attached to the floor the same way as the seats that everybody else is using, so that people who use wheelchairs and their companions are not singled out or separated in any way or distinguished as little as possible from all of the other spectators in the arena.”) and at 104-05 (“the intention is that the companion seat be the same kind of seat that other people are sitting in so that the companions blend in with the rest of the crowd ... [I]t’s not about comfort or cup-holders or armrests.”)

The court acknowledges the desire that many wheelchair users have to blend in with the audience as a whole and not feel conspicuous. However, the reality is that wheelchair patrons are not identical to ambulatory patrons: they use wheelchairs for locomotion. By definition, wheelchair locations cannot be identical in every respect to the seats in the rest of the arena: there must be a level platform with sufficient room to maneuver a wheelchair, and there must be an access ramp suitable for wheelchairs. Plaintiffs also have demanded enhanced lines of sight that likely would require wheelchair platforms to be elevated somewhat above the surrounding rows of spectators. The physical appearance of these wheelchair locations necessarily will be different firom that of the conventional seating. Defendant is not responsible for these facts, nor can defendant alter them. All defendant can do is to make reasonable efforts to accommodate the special needs of wheelchair users, consistent with the requirements of the ADA, while also considering the needs of other patrons.

Plaintiffs have suggested that portable seats are permissible so long as the chairs are affixed to the ground, such as a removable seat anchored in a track that in turn is affixed to the floor. That is one permissible alternative, but it is not the exclusive means for providing a companion seat, at least in the context of the Rose Garden. Neither plaintiffs nor DOJ have presented any evidence to show that the provision of a Clarín folding chair instead of a chair bolted to the floor interferes with the ability of a wheelchair user (or their ambulatory companions) to attend events at the Rose Garden, to enjoy the event, and to have substantially the same opportunity to benefit from that experience.

In summary, I do not read Standard 4.33.3 to prohibit the use of high-quality folding chairs as companion seats, at least under the circumstances present in this case. If DOJ or the Access Board believe otherwise, then they should amend Standard 4.33.3 to clarify that intention, and also should be prepared to articulate the rationale for such a rule.

34

B. “Substantially Equivalent or Greater Access”

Even assuming,

arguendo,

that the term “fixed” seat literally requires that the seat be bolted to the ground, Standard 2.2 authorizes “the use of other designs and technologies ... where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.” This is known as the “equivalent facilitation” exception. For the reasons discussed above, I conclude that under the facts of this case a high-quality folding companion seat is permissible because it provides “substantially equivalent or greater access to and usability of the” Rose Garden as compared to a companion seat that is bolted to the floor.

*727

Plaintiffs and DOJ protest that the equivalent facilitation exception is limited to “new” technologies, and folding chairs cannot qualify because they have been around for many years. I find nothing in the text of the regulation to support that limiting construction.

The purpose of the Title III regulations is to ensure that persons with disabilities have the opportunity to benefit from public accommodations. The various design standards are only the designated means for accomplishing those objectives. The equivalent facilitation exception is an acknowledgment that the federal government does not enjoy a monopoly on good ideas, and that there may be more than one means to accomplish a particular objective. Moreover, given the extraordinary complexities of designing and operating a structure such as the Rose Garden, and the many competing demands and requirements that must be addressed, arena designers and operators must be permitted some flexibility in how they approach particular problems. In addition, DOJ has acknowledged that in some instances an equivalent facilitation may be appropriate so that a designer can comply with both the ADA and state or local building codes.

See

TAM (1994 Supp.) § III-7.2100.

35

At oral argument, DOJ argued that the “legislative history is quite clear that the equivalent facilitation provision was intended to cover things that were not yet in existence.” Jan. 28, 1997 Tr. at 103-04. I do not find the legislative history to be as clear as DOJ contends. Moreover, DOJ sang a different tune at the time it promulgated this regulation:

A few commenters ... asked the Department to include in the regulations a provision stating that departures from particular technical and scoping requirements of the accessibility standards will be permitted so long as the alternative methods used will provide substantially equivalent or greater access to an utilization of the facility. Such a provision is found in ADAAG 2.2 and by virtue of that fact is included in these regulations.'

56 Fed. Reg. 35,544 , 35,586 (July 26, 1991). There was no mention in the commentary of any requirement that the alternative methods not have existed at the time the Standards were enacted. Likewise, § III-7.2100 of the TAM does not indicate that alternative methods are limited to new technology. In fact, none

of

the five examples

given in the

TAM describe new technology. The TAM also makes clear that “[departures from any provision in ADAAG are permitted so long as equivalent access is provided.”

Id.

DOJ understandably is reluctant to give each designer a license to decide the extent to which it will comply with the ADA regulations, or to revisit issues that already have been decided by DOJ and the Access Board to “strike their own balance.” Jan. 29, 1997 Tr. at 41. I do not believe that the threat is as great as DOJ fears. The ADAAG Standards act as a safe harbor. A designer who adheres to the letter of those standards (as interpreted by the courts and DOJ) ordinarily will be in compliance with the ADA regulations, at least with regard to the particular design elements covered by those standards.

By contrast, a designer who chooses to utilize alternative methods that it believes will provide equal or greater access runs the risk that DOJ or the courts will not share his or her enthusiasm. In any enforcement action the burden will be upon the designer to demonstrate that the alternative method qualifies as an equivalent facilitation. See TAM (1994 supp.) § III-7.2100. The penalties for guessing wrong can be quite severe, especially for new construction; in extreme cases the court may order a non-compliant structure to be torn down and rebuilt in compliance with ADA standards. That prospect should serve to discourage abuse of the equivalent facilitation exception.

Moreover, many of the standards are not susceptible of an equivalent facilitation. For instance, if the Standards require the provision of 50 wheelchair spaces, the designer may not elect to provide only 25 spaces; that would not be an equivalent facilitation. Furthermore, if DOJ or the Access Board have

*728

considered and rejected certain methods, and decided that they are not an acceptable alternative, then that determination can be reflected in the rulemaking process, either in the text of the rule or the commentary. For instance, in § III-7.2100 of the TAM, DOJ expressly cautioned that “portable ramps are

not

considered equivalent facilitation.” (emphasis in original).

With regard to folding companion seats, during oral argument DOJ represented that “the question about whether or not a folding chair was acceptable was specifically considered and rejected in the process of adopting the standards.” Jan. 28, 1997 Tr. at 103-04. The court does not recall reading any such discussion in the text of the rule or in the formal response to comments or other commentary published with the proposed standards. The issue may have been discussed within the confines of the agency, but there is no evidence of such a discussion in the public record nor is it apparent from the face of the regulation. Unlike the sightlines issue, the court is not even aware of any extensive informal correspondence regarding the issue.

Lastly, there is no merit to plaintiffs’ contention that the Clarín chairs are not an equivalent facilitation because the chairs are not affixed to the ground. The purpose of a “fixed” companion seat is not to be “fixed,” but to provide a seat for a companion. An equivalent facilitation is one that provides “substantially equivalent or greater

access to and usability

of the facility.” Standard 2.2. Whether the companion seat is bolted to the floor has little to do with its purpose of providing access to and usability of the facility for persons in wheelchairs.

36

Defendant is entitled to partial summary judgment on the issue of the folding companion seats.

5.

Modified Aisle Seats:

Standard 4.1.3(19) provides that, in addition to the required number of wheelchair spaces, “one percent, but not less than one, of all fixed seats shall be aisle seats with no armrests on the aisle side, or removable or folding armrests on the aisle side.”

It is undisputed that defendant has provided the requisite quantity of modified aisle seats. However, plaintiff contends that most of those seats can not be counted towards satisfaction of this requirement because those modified aisle seats are not wheelchair-accessible. Defendant has represented that 14 of the modified aisle seats are located on wheelchair routes. To reach the remaining 177 modified aisle seats, the patron must traverse from one to three steps. Plaintiff contends that all of the modified aisle seats must be wheelchair-accessible.

Standard 4.1.3(19) does not expressly require that these modified aisle seats be wheelchair-accessible. However, in the commentary explaining this Standard, the Access Board explained that this provision was intended:

“to increase accessibility for wheelchair users who wish to transfer to a fixed seat and individuals with other mobility impairments for whom armrests present an obstacle. These seats must be identified by a sign or marker and a sign must be posted in the ticket office notifying patrons of their availability.”

56 Fed. Reg. 35,408 , 35,425 (July 26, 1991). The Access Board also explained that these modified aisle seats were to be in lieu of an

*729

equivalent number of wheelchair spaces that had been required under some other accessibility codes. Instead of requiring two percent of the seating to consist of wheelchair spaces, as was required under some codes, the Access Board decided to require one percent of the seating to be wheelchair spaces and one percent to be modified aisle seats.

37

Id.

Although neither the commentary nor the text of the final rule-expressly state that these modified aisle seats must be wheelchair-accessible, such a requirement is implicit, at least as to those seats that are intended to be occupied by wheelchair users.

The Access Board commentary indicates that these spaces also are intended for use by other persons who have mobility impairments but do not require the use of a wheelchair. The latter appears to be a reference to persons who use crutches or a walker, or who need to sit with one leg outstretched

{e.g.,

following knee surgery or a broken leg) or who, for various reasons,. have difficulty reaching a seat in the middle of a row. The fact that such persons do not require a wheelchair suggests that many .of these individuals may be able to navigate from one to three stairs, although some

{e.g.,

those who use a walker) may not be as mobile.

In adopting the language suggested by the Access Board, DOJ briefly summarized some of the design Standards. With respect to the modified aisle seats, DOJ explained that they were intended “for persons with mobility impairments who prefer to transfer from their wheelchairs to fixed seating.” 56 Fed. Reg. 35,544 , 35,587 (July 26, 1991). That implies that these aisle seats must be wheelchair-accessible.

DOJ elaborated upon this requirement in the TAM, advising designers that for new construction “at least one percent of all fixed seats must be aisle seats without armrests (or with removable armrests) to allow for transfer from a wheelchair.” § III-7.5180 (1993 ed.) Again, the implication is that the seats are for the use of persons in wheelchairs. The same purpose is expressed in another section of the TAM:

[I]n order to facilitate seating of wheelchair users who wish to transfer to existing seating when fixed seating is provided, a public accommodation must provide, to the extent readily achievable, a reasonable number of seats with removable aisleside armrests. Many persons who use wheelchairs are able to transfer to fixed seating with this relatively minor modification. This solution avoids the potential safety hazard created by the use of portable chairs, and it also fosters integration.

TAM § 111-4:4600 (1993 ed.)

38

Although the requirement could have been stated more explicitly in the Standard itself, both DOJ and the Access Board consistently have interpreted Standard 4.1.3(19) to require that either some or all of the modified aisle seats be accessible to persons in wheelchairs. . Unfortunately, neither agency has defined what percentage of these seats must be wheelchair-accessible. One possible inference is that all of the modified aisle seats must be located on a wheelchair-accessible route. However, defendant has argued- — and the court agrees — that such a requirement may be impossible to satisfy, at least in a large indoor arena such as the Rose Garden.

In some venues, where there are no stairs, it may be possible for all of the required modified aisle seats to be located on a wheelchair-accessible route. That is not the ease in large arenas and stadiums, which as a rule

*730

tend to be more steeply pitched. In such structures, the only aisle seats that are wheelchair-accessible are those immediately adjacent to a vomitory.

39

The remaining aisle seats are accessible only via stairs. Consequently, the potential quantum of wheelchair-accessible aisle seats is determined by the number of vomitories in the structure. By definition, there can be no more than two modified aisle seats per vomi-tory, one on either side of the aisle. Therefore, a minimum of 96 vomitories are needed to provide 191 modified aisle seats on wheelchair-accessible routes. Even that is not sufficient, however, because some of these wheelchair-accessible locations already are utilized for traditional wheelchair spaces, which also must be immediately adjacent to a vomitory.

After subtracting those wheelchair spaces, it is unlikely that there will be an additional 191 locations remaining that are immediately adjacent to vomitories so that each of the modified aisle seats can be reached without traversing any stairs.

40

Defendant therefore has placed many of the modified aisle seats within one to three steps of a vomitory. That may be within the range of many individuals who walk with the aid of, crutches or a walker. Unfortunately, neither party presented any evidence on that question. The record also does not disclose whether defendant could have located more than 14 (though less than 191) modified aisle seats on wheelchair-accessible routes. In view of those deficiencies in the record, neither side is entitled to summary judgment at this time.

A related question is whether the concept of wheelchair “transfer” seats is even practical at all in a large arena such as the Rose Garden. The theory is that the wheelchair user will transfer from the wheelchair into a modified aisle seat. However, that leaves an unresolved problem: what to do with the empty wheelchair during the event.

41

Leaving the wheelchair in the aisle or against a wall might be a workable solution in facilities that have sufficient clear space, but it is not a viable option in the Rose Garden. With thousands of patrons attempting to navigate the narrow aisles, a wheelchair impeding the circulation pattern would represent a safety hazard.

In theory, a storage area could be set aside behind each modified aisle seat. However, that likely would mean the loss of an entire row of seats for each pair of modified aisle seats — and there are 191 of those seats.

42

That represents a substantial revenue loss, based solely upon the possibility that a patron may want to transfer from a wheelchair into a regular seat instead of using the wheelchair spaces that the arena operator already is required to provide.

Plaintiffs and DOJ contend that the arena operator must provide storage rooms for wheelchairs. If it were feasible to build storage areas into the vomitories themselves, so there would be a storage area within a few yards of each “transfer” seat without losing an entire row of seats, then that might be a workable solution (though that concept is one that seemingly must be incorporated into the original design of the building.) Otherwise, someone

(i.e.,

the arena operator) must

*731

transport each wheelchair to the secure storage area, and retrieve the wheelchair each time the patron desires to go to the restroom, or to a concession stand, or to use a pay phone, or to exit the building.

In the commentary that was published when DOJ adopted Standard 4.1.3(19), DOJ interpreted that Standard as requiring that “when a person in a wheelchair transfers to existing seating, the public accommodation

shall

provide assistance in handling the wheelchair of the patron with the disability.” 56 Fed. Reg. 35,544 , 35,572 (July 26, 1991) (emphasis added).

43

Perhaps such a policy would be feasible in a smaller venue such as a meeting hall or movie theater. It is quite a different story in a large arena with several hundred “transfer” seats which — by law — must be dispersed throughout the arena. Even assuming that storage and retrieval of the wheelchair can be accommodated by the existing ushers, the court can envision a number of other issues associated with “transfer” seats. For instance, is the arena operator liable for damage to or loss of the wheelchair while in the operator’s custody? Is the arena operator liable for false imprisonment if an usher forgets to retrieve a wheelchair, and the patron is .unable to, leave his or her seat?

44

Perhaps these obstacles can be surmounted by additional regulations (limiting liability), innovative design (storage areas built into vomitories), or modern technology

(e.g.,

providing each patron in a transfer seat with an electronic device with which to summon an attendant to store or retrieve the wheelchair.) Nonetheless, having reviewed the regulations, the commentary, the TAM, and the record in this case, the court finds little evidence that the various issues associated with “wheelchair transfer seats” — and in particular, how the requirement is to be applied in the real world — have fully been considered by the Access Board and DOJ, or that adequate guidance is offered to arena designers and operators to help them to comply with the regulations governing such “transfer seats.”

For the reasons stated earlier, I am denying summary judgment on this issue for either side. The parties will be given a further opportunity to enlighten the court as to the intent of the rule and whether it is possible for defendant to more fully comply with its mandate. I also will consider whether any changes should be made to the ticket sale policies for modified aisle seats.

45

*732

Regardless of the ultimate disposition in this case, DOJ and the Access Board should revisit this Standard and make appropriate revisions. Arena designers (and judges) should not be forced to speculate as to the law’s intended operation.

6.

Line of Sight Over Standing Spectators:

Plaintiffs contend that the Rose Garden violates Standard 4.3S.3 because the arena does not provide wheelchair patrons with a line of sight over standing spectators.

46

Standard 4.33.3 provides that:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.

DOJ presently interprets Standard 4.33 to require that:

In addition to requiring companion seating and dispersion of wheelchair locations, ADAAG requires that wheelchair locations provide people with disabilities lines of sight comparable to those for members of the general public. Thus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheelchair locations must provide lines of sight over spectators who stand. This can be accomplished in many ways, including placing wheelchair locations at the front of a seating section, or by providing sufficient additional elevation for wheelchair locations placed at the rear of seating sections to allow those spectators to see over the spectators who stand in front of them.

1994 TAM Supplement at 13. However, by itself the TAM does not impose any legal obligations. The TAM was not adopted in accordance with the notice and comment procedure established by the APA for new substantive rules, and it does not have the force of law.

Schmidt v. Safeway,

864 F.Supp. 991, 1001 (D.Or.1994). Rather, the TAM is merely DOJ’s interpretation of what is already required by the ADA and its implementing regulations. Consequently, the court must determine whether the TAM is a permissible interpretation of those existing laws.

For purposes of analyzing this claim, I will consider three distinct issues: (1) whether DOJ

could

require that wheelchair users be provided with a line of sight over standing spectators, (2) whether such a requirement actually does exist and whether it is binding upon this defendant, and, (3) whether defendant has any equitable defense to the enforcement of such a requirement.

A. Whether DOJ

could

Require that Wheelchair Users be Provided with a Line of Sight Over Standing Spectators.

The underlying facts are not seriously disputed. During many sporting events, such as basketball and hockey, spectators routinely stand (if they are able) during the most important moments in the game. At the Rose Garden, this behavior is actively encouraged by messages on the scoreboard that urge spectators to show their support for the home team by standing. During other events such as concerts, spectators often stand throughout the entire event. Spectators who use wheelchairs typically are unable to stand. As a result, their view of the event is substantially or entirely obstructed. Instead of seeing the concert, or the goal or winning basket, patrons seated in wheelchairs at the Rose Garden

47

typically can see

*733

only the backs (or backsides) of those standing in front of them.

Defendant argues that the views of some ambulatory patrons are similarly obstructed, and complain that what plaintiffs really seek is not equality but preferential treatment. That argument misses the mark.

See Paralyzed Veterans,

950 F.Supp. at 400 n. 16 (rejecting identical argument),

aff'd,

117 F.3d 579 . As Judge Hogan correctly observed, ambulatory spectators have the option of standing with the rest of the crowd and can thereby recapture most of the lost view.

Id.

Unless the spectator is unusually short or the person in front is quite tall, the loss of view is not total. Moreover, ambulatory patrons can move around or angle their bodies to obtain a better view, or stand on their chairs. Small children may be held aloft by their parents. In addition, for children the view blockage is likely to be only temporary, since they will grow taller during the coming years.

By contrast, spectators in wheelchairs typically do not have any of those options, nor is this just a temporary phase — such as childhood — that they are likely to grow out of. The view of a typical wheelchair patron at the Rose Garden is equivalent to that of an ambulatory spectator who is 42 inches tall

(i.e.,

three feet, six inches.) Allison Depo. at 148.

48

While some ambulatory spectators occasionally have an obstructed view, that experience is the rule, rather than the exception, for those who attend Rose Garden events in a wheelchair. It is no answer to say that some ambulatory, spectators may also have obstructed sightlines. Even assuming that wheelchairs users would enjoy a slightly better sightline than some ambulatory spectators, that is preferable to the alternative suggested by defendant, which is to provide wheelchair users with sightlines that are guaranteed to be the worst in the house. In no way can the latter be construed as “comparable” sightlines.

Cf Paralyzed Veterans,

950 F.Supp. at 400 n. 16.

Compliance with the ADA may require more than the provision of nominally “identical” facilities for customers with disabilities. There is a difference between

physically

identical facilities and

functionally

equivalent facilities. If defendant provided “identical” men’s and women’s restrooms in the Rose Garden, each containing two toilet stalls and seventeen urinals, few would argue that the facilities were functionally comparable notwithstanding their physical similarity. The benefits and services derived by one group would be substantially less than the benefits and services derived by the other.

The same logic' applies when analyzing compliance with the ADA.

See

28 CFR § 36.202 (b) (public accommodation must afford persons with disabilities an equal opportunity to benefit from the goods, services, or facilities). Indeed, if the ADA required only that public accommodations provide physically identical facilities for both ambulatory patrons and those in wheelchairs, then there would be no need to provide ramps and elevators; both groups would be given an “equal opportunity” to use the stairs.

Even before Congress enacted the ADA, it was comparatively rare for the owner of a public accommodation to stand on the front steps of the building holding a sign which read “no wheelchairs allowed.” No sign was necessary. The imposing row of steps in front of the building already communicated the message that persons in wheelchairs were not welcome. Accordingly, the ADA requires more than merely refraining from active discrimination,

e.g.,

“you are forbidden to enter this building because you are in a wheelchair.” The operator of a public accommodation may also be required to take affirmative steps to ensure that the “opportunity” to patronize the facility is a meaningful one.

See

H.R.Rep. No. 101-485(11) at 104 (May 15, 1990),

reprinted at

1990 U.S.C.C.A.N. 267, 387. As a general rule, the objective of Title III is to provide persons with disabilities who utilize public accommodations with an experience that is functionally equivalent to that of other patrons, to the extent feasible given the limitations imposed by that person’s disability.

See

28 CFR §§ 36.202 , .203, .302.

DOJ reasonably could have concluded that providing spectators in wheelchairs with lines of sight that are

physically

identical to those

*734

of ambulatory spectators often does not provide the wheelchair user with a

functionally

equivalent experience. Such facilities may be facially neutral but in practice have a disparate impact upon those in wheelchairs. For that reason, it may be necessary in some instances to provide enhanced lines of sight so that those who watch the event from a wheelchair may obtain a benefit comparable to that received by ambulatory spectators.

49

To the extent this constitutes “preferential” treatment, the class of wheelchair users is always open to new members. However, the court has not observed — and does not anticipate — a rush of volunteers choosing to have their legs amputated so they may watch a basketball game from a wheelchair and thereby enjoy “preferential” sightlines. If actions speak louder than words, then it would appear that the “benefits” of being dependent upon a wheelchair may not be so substantial after all.

In summary, DOJ reasonably could have concluded that lines of sight over standing spectators are necessary during events at which spectators are expected (or even encouraged) to stand so that those who watch the event from a wheelchair may obtain a benefit comparable to that received by most ambulatory spectators. The ADA provides ample legal authority to support such a requirement. Indeed, all of the efforts that have been made to ensure accessible entrances, restrooms and concession stands at the Rose Garden are of little consequence if wheelchair users won’t attend events at the Rose Garden because they cannot see the event that they paid $65 to watch.

B. Whether such a Requirement

does

Exist, and Whether it is Binding Upon this Defendant.

Although the ADA clearly would support a requirement to provide wheelchair users with sightlines over standing spectators in certain situations, the more difficult question is whether such a requirement does in fact exist, and whether defendant was subject to that requirement when it built the Rose Garden. The only courts to have considered the issue (in the context of other arenas) have reached different conclusions. Judge Thomas Hogan, of the District of Columbia, upheld DOJ’s interpretation of Standard 4.33.3 as articulated in the 1994 TAM supplement.

Paralyzed Veterans,

950 F.Supp. at 398 . Judge Hogan’s decision was affirmed by the DC Circuit, though the court considered it to be a close question.

Paralyzed Veterans,

117 F.3d at 579, 587 .

By contrast, Judge Joseph Irenas of the District of New Jersey concluded that the builder of a facility in which construction commenced before DOJ published its formal interpretation of Standard 4.33.3 was not required to provide sightlines over standing spectators.

Caruso v. Blockbuster-Sony Music Entertainment Centre,

968 F.Supp. 210 (D.N.J.1997).

50

It is undisputed that construction of the Rose Garden commenced before DOJ published the final version of the 1994 TAM supplement.

*735

The central question in each of these cases was whether the 1994 TAM supplement was a valid interpretive regulation, explaining DOJ’s interpretation of a regulation that already existed — as the

Paralyzed Veterans

courts each concluded — or whether the TAM supplement was an invalid attempt to promulgate a new legislative

51

regulation that did not previously exist, as the

Caruso

court held. Although this court, of necessity, must decline to follow at least one of these decisions, the court nonetheless has found each of these thoughtful opinions to be helpful in analyzing the motions in the instant ease,

(i) Does Timing Matter?

I reject defendant’s contention that the date on which construction commenced, or the progress that defendant had made in completing the seating bowl, somehow determines the validity or applicability of the line of sight requirement.

52

It is true that the defendant in

Paralyzed Veterans

did not finish the design of the DC arena until a month after DOJ published the TAM supplement that explicitly interpreted the phrase “lines of sight comparable to those for members of the general public” in the ADA regulations to require sightlines over standing spectators. By contrast, the defendant in

Caruso

commenced construction before the TAM supplement had been published. Likewise, the defendant here contends that it already had crossed the Rubicon and substantially completed the seating bowl before the TAM supplement was published in late 1994.

The

Caruso

court suggested that the difference in timing was significant, an argument that the defendant here also embraces. However, I conclude that — for purposes of determining whether the Rose Garden was subject to DOJ’s interpretation of Standard 4.33.3 — it is. irrelevant whether defendant was aware of DOJ’s interpretation prior to the date when construction of the Rose Garden commenced or when the seating bowl was substantially completed.

The DOJ regulations at issue, including Standard 4.33.3, were enacted on or about July 26, 1991. Defendant concedes, as it must, that the Rose Garden was subject to those regulations. Consequently, if Standard 4.33.3 requires arena operators to provide wheelchair users with sightlines over standing spectators — as DOJ contends — then that has been the law ever since July 26, 1991, and the Rose Garden was subject to that requirement.

Perhaps, as defendant contends, the 1994 TAM supplement was the first time that DOJ publicly declared its present interpretation of Standard 4.33.3. Even if. that were true,

53

the meaning of a regulation does not vary depending upon which DOJ official or which President is in office, nor must enforcement of a regulation await the agency’s publication of a formal opinion interpreting that regulation. Moreover, Congress expressly provided that “failure in the development of dissemination of any technical assistance manual authorized by this Section” does not excuse compliance with the ADA. 42 U.S.C. § 12206 (e).

Either Standard 4.33.3 requires newly constructed indoor arenas to provide wheelchair patrons with a line of sight over standing spectators — and has imposed such a duty ever since it was adopted in July 1991 — or

*736

else Standard 4.33.3 does not impose such an obligation even today. If the “line of sight” requirement did not already exist, then DOJ could not create such a requirement in 1994 merely by adopting an interpretive regulation. That result could be accomplished only through a legislative regulation promulgated in accordance with the procedures established in the Administrative Procedure Act (“APA”), 5 U.S.C. § 553 , or perhaps through adjudication if applicable.

Cf. NLRB v. Bell Aerospace Co.,

416 U.S. 267, 290-95 , 94 S.Ct. 1757, 1769-72 , 40 L.Ed.2d 134 (1974) (discussing circumstances under which agency may announce new rule by adjudication.).

Consequently, it is not possible to harmonize the decisions in

Caruso

and

Paralyzed Veterans

by focusing upon the difference in the timing of the two projects. If the requirement for sightlines over standing spectators was inapplicable to the entertainment center in

Caruso ,

then it likewise was inapplicable to the arena in

Paralyzed Veterans,

and vice versa.

Of course, even if the 1994 TAM supplement is determined to be a valid interpretive regulation, the courts may be reluctant to enforce,

post hoc,

an interpretation of a regulation that did not become apparent until after the defendant had committed itself to a particular course of conduct.

54

However, such equitable concerns do not invalidate the regulation,

per se.

Rather, those concerns are more properly considered in the context of an equitable defense, or at such time as the court decides what relief to order. That is particularly true in private ADA litigation where the potential remedy is limited to prospective injunctive relief, as opposed to damages, civil penalties, or criminal sanctions,

(ii) Was the 1994 TAM Supplement a Valid Interpretive Regulation?

As a general rule, an agency’s interpretation of its own regulations must be sustained unless “plainly erroneous or inconsistent” with the regulation.

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 , 114 S.Ct. 2381, 2386 , 129 L.Ed.2d 405 (1994). The analysis here is complicated by the fact that there allegedly were two agency interpretations: one that was announced at the time the regulation was promulgated in July 1991, and a second interpretation formally published in the TAM supplement in Novem

*737

ber 1994. When an agency announces a new interpretation of a regulation that effectively repudiates or substantially departs from the agency’s previous interpretation of that same rule, that action is tantamount to an amendment of the rule itself and requires notice and comment rulemaking.

See National Family Planning and Reproductive Health Ass’n, Inc. v. Sullivan,

979 F.2d 227 (D.C.Cir.1992);

Orengo Caraballo v. Reich,

11 F.3d 186, 196 (D.C.Cir.1993).

55

Accordingly, whether the disputed section of the 1994 TAM supplement was a valid interpretive regulation hinges upon whether the agency previously had adopted a significantly different interpretation of Standard 4.33.3.

To support its contention that DOJ previously had construed Standard 4.33.3 as not requiring lines of sight over standing spectators, defendant first points to a speech by Irene Bowen, deputy chief of the Public Access Section of DOJ, at a conference of baseball stadium operators following the November 1992 presidential election. The court attributes little weight to that speech. Agencies ordinarily make policy through official actions, be it in the form of substantive or interpretive regulations or by way of adjudication or enforcement actions. Post-election remarks made by a mid-level official in a lame duck administration at a convention of baseball stadium operators do not constitute a binding interpretation of agency regulations.

Defendant’s reliance on the affidavit of John R. Dunne also is flawed. Mr. Dunne was the Assistant Attorney General for Civil Rights in 1991, during the time when DOJ enacted the design Standards. In fact, it was Mr. Dunne who signed the original notice of proposed rulemaking issued by DOJ. 66 Fed. Reg. 7452 , 7495 (Feb. 22, 1991). He has now proffered an affidavit expressing his views on how DOJ interpreted Standard 4.33.3 during 1991 and 1992. I question whether DOJ even had occasion to interpret Standard 4.33.3 during those years, since the new construction requirements applied only to buildings that were occupied after January 26, 1993, 28 CFR § 36.401 (a)(2), which was six days after Mr. Dunne left office. • Nor does the record disclose a single project to which the standard was applied during his tenure at DOJ.

In any event, agencies do not formulate policy or formally interpret administrative regulations through post-hoe affidavits from former agency officials, on behalf of a private litigant, expressing the affiant’s personal view on how the agency previously interpreted the regulation. The question is not whether DOJ had privately reached a different interpretation of Standard 4.33.3 than the one the agency now articulates, but whether it had formally and publicly adopted such a contrary interpretation, whether by issuing interpretive regulations, asserting a position in litigation, or otherwise.

Defendant’s final argument is the most substantial: whether DOJ adopted the commentary published by the Access Board to accompany the final ADAAGs.

(a) Did DOJ Adopt the Access Board Commentary?

As noted earlier, when Congress passed the ADA, it painted with a broad brush, leaving many of the details to be determined by subsequent rulemaking and adjudication.

56

*738

Congress established a special procedure for promulgating regulations to implement Title III. Not later than nine months after July 26, 1990 — the date that the ADA became law— the Access Board was to issue “minimum guidelines” for implementing Title III. 42 U.S.C. § 12204 (a). These minimum guidelines were intended to supplement and modify the existing minimum guidelines that the Access Board

57

previously had drafted to assist federal agencies in complying with pre-ADA laws such as the Rehabilitation Act of 1973, 29 U.S.C. § 794 .

Id.

Although the Access Board was charged with promulgating a set of guidelines, those guidelines in themselves were of no legal effect. Rather, Congress directed the Attorney General, not later than one year after July 26, 1990, to issue substantive regulations for implementing Title III of the ADA. 42 U.S.C. § 12186 (b). Any standards included within those regulations “shall be consistent with the minimum guidelines and requirements issued by the [Access Board] in accordance with section 12204 of this title.” 42 U.S.C. § 12186 (c).

Congress further provided that, in the event the Attorney General failed to timely promulgate regulations to implement Title III, compliance with the existing Uniform Federal Accessibility Standards (“UFAS”) that were in effect at the time the building permit was issued “shall suffice to satisfy the requirement that facilities be readily accessible to and usable by person with disabilities as required by section 12183 of this title,” except that if the Access Board had completed its task then compliance with its guidelines “shall be necessary to satisfy the requirement[s]” of section 12183. 42 U.S.C. § 12186 (d).

On January 22,1991 — three months before the final deadline established by Congress— the Access Board published its draft of proposed supplemental design guidelines and solicited public comment regarding that draft. 56 Fed. Reg. 2296 (Jan. 22, 1991). The proposed guidelines included a draft version of what would later become Standard 4.33.3, which provided in relevant part that:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be dispersed throughout the seating area. They shall ... be located to provide lines of sight comparable to those for all viewing areas.

56 Fed. Reg. 2380 . This language is identical to the language of an existing standard known as American National Standard Institute (“ANSI”) document A117.1-1980. 56 Fed. Reg. 2327 . The ANSI standards were themselves the basis for the pre-ADA standard known as the UFAS.

Caruso,

968 F.Supp. at 217 , 49 Fed. Reg. 31,528 (Aug. 7, 1984) (codified at 41 CFR subpt. 101-19.6, App. A).

When it published' the draft Title III guidelines, the Access Board attached a separate commentary. The discussion regarding proposed Guideline 4.33.3 states that:

This requirement appears to be adequate for theaters and concert halls, but may not suffice in sports arenas or race tracks where the audience frequently stands throughout a large portion of the game or event. In alterations of existing sports arenas, accessible spaces are frequently provided at the lower part of a seating tier projecting out above a lower seating tier or are built out over existing seats at the top of a tier providing a great differential in height. These solutions can work in newly constructed sports arenas as well, if sight lines relative to standing patrons are considered at the time of initial design. The Board seeks comments on whether full lines of sight over standing spectators in sports arenas and other similar assembly areas should be required.

56 Fed. Reg. 2296 , 2315 (Jan. 22, 1991).

On February 22, 1991, DOJ published a draft of its own proposed regulations for implementing Title III. Some were regula

*739

tions that DOJ itself had drafted, which covered matters other than those being addressed by the Access Board. In addition, DOJ proposed to adopt as its own accessibility standard the draft Access Board guidelines,

“with any amendment made by the [Access Board] during its rulemaking process.”

56 Fed. Reg. 7452 , 7478-79 (Feb. 22, 1991) (emphasis added).

The notice published by DOJ on Feb. 22, 1991, did not expressly incorporate the Access Board’s commentary. DOJ published a substantial commentary of its own regarding the proposed Title III regulations. 56 Fed. Reg. 7452 . However, that commentary was devoted almost entirely to the portions of the regulations that DOJ had proposed in addition to the Access Board guidelines. DOJ did not publish an extensive commentary regarding the proposed guidelines that had been drafted by the Access Board. Moreover, DOJ advised the public that “any comments” regarding the proposed Access Board Guidelines — which DOJ was proposing to adopt as its own Standards — “should be sent to the [Access Board] at the address listed in its [Notice of Proposed Rulemaking]” rather than to DOJ. 56 Fed. Reg. at 7479.

DOJ scheduled four public hearings across the country to gather comments regarding the proposed Title III regulations. These public hearings and DOJ’s request for comments appear to have been independent of the Access Board’s notice and comment process.

Cf.

56 Fed. Reg. at 35,409 (July 26, 1991) (Access Board held 14 public hearings around the country, and received 1,865 written comments) and 56 Fed. Reg. at 35,544 (July 26, 1991) (DOJ held 4 public hearings around the country, and received 2,940 written comments, including one comment from a consortium of 511 organizations). However, at all times DOJ was a member of the Access Board, and actively participated in the public hearings held by that Board and also in the drafting of the Access Board’s proposed guidelines.

See

56 Fed. Reg. at 35,586. DOJ also claims to have reviewed and considered

both

the written comments received by DOJ and also those received by the Access Board, although the scope of the latter review may have been limited.

Id.

On July 26, 1991 — three months after the deadline established by Congress, 42 U.S.C. § 12204 (a) — the Access Board published its final guidelines. The Access Board amended the draft of Guideline 4.33.3 to read, in relevant part:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be

provided

so as

to provide people mth physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.

56 Fed. Reg. 35,408 , 35,514 (July 26, 1991) (emphasis in original). The italicized language differed from the draft that was published in January 1991, and also differed from the language of ANSI document A117.1-1980 and the UFAS.

Along with its final guidelines, the Access Board published a commentary discussing some of the public comments it had received, the changes that had been made, and the Board’s interpretation of the guidelines. With regard to Guideline 4.33.3, the Access Board’s commentary states that:

The requirements in 4.33.3 for dispersal of wheelchair seating spaces have been modified. Wheelchair seating spaces must be an integral part of any fixed seating plan and be situated

58

so as to provide wheelchair users a choice of admission prices and lines of sight comparable to those available to the rest of the public.

* * ‡ * *

The [prior notice] asked questions regarding row spacing and lines of sight over standing spectators in sports arenas and other similar assembly areas.... Many commenters ... recommended that lines of sight should be provided over standing spectators * * * *

The issue of lines of sight over standing spectators mil be addressed in guidelines for recreational facilities.

*740

56 Fed. Reg. 35,408 , 35,440 (July 26, 1991) (emphasis added). Later that day, DOJ published its own final regulations for implementing Title III. 56 Fed. Reg. 35,544 (July 26, 1991). Those regulations incorporated the language of the final guidelines adopted by the Access Board, but did not expressly adopt the Access Board’s commentary. 56 Fed. Reg. 35,605 -35,691. The final regulations adopted by DOJ included additional rules on topics that were not addressed by the Access Board. 56 Fed. Reg. 35,593 -35,604. DOJ drafted an extensive commentary on those other sections. Portions of that commentary are reprinted at 28 CFR Part 36, App. B.

In both the

Paralyzed Veterans

ease as well as the instant litigation, DOJ has asserted that although it adopted, verbatim, the

language

of the Guidelines drafted by the Access Board, it did not adopt the

commentary

published by the Access Board which discussed those Guidelines and therefore is not bound by anything which the Access Board said in that commentary. The

Paralyzed Veterans

court found that argument persuasive. 117 F.3d at 587 . Although this court is inclined to give considerable deference to the views of the DC Circuit on matters of federal administrative law, in this instance I respectfully disagree with that Circuit’s analysis.

When promulgating a legislative regulation pursuant to the notice and comment provisions of the APA, an administrative agency ordinarily is required to explain the purpose and justification for the proposed rule and, in its final decision, to respond to significant criticisms of the proposed rule and to explain why the agency decided to adhere to (or to modify) the proposed rule.

See, e.g., Gamboa v. Rubin,

80 F.3d 1338, 1346 ,

vacated on jurisdictional grounds,

101 F.3d 90 (9th Cir.1996);

Reytblatt v. U.S. Nuclear Regulatory Comm’n,

105 F.3d 715 , 722 (D.C.Cir.1997) (agency must respond in reasoned manner to those comments that raise significant problems);

International Fabricare Inst. v. U.S. EPA,

972 F.2d 384 , 389 (D.C.Cir.1992) (agency is required “to give reasoned responses to all significant comments in a rulemaking proceeding”); Davis & Pierce,

Administrative Law Treatise

(3d ed.1994 and 1996 supp.) § 7.4. If DOJ did not adopt the Access Board’s commentary then, in order for the regulations to be valid, the separate commentary published by DOJ must by itself be sufficient to satisfy the notice and comment requirements.

In its response to the court’s questions, DOJ asserted that its “commentary on the final rule fully satisfied the requirements” of the APA. United States’ Responses to Second and Third Sets of Questions Posed by the Court at 10. I disagree. DOJ’s commentary did discuss its decision to adopt the ADAAGs as a whole, as opposed to using some other established standard such as ANSI or UFAS, and DOJ did respond to public comments regarding that particular issue. 56 Fed. Reg. at 35,585-86.

59

DOJ’s commentary also contained a brief summary of the Guidelines that it had copied from the Access Board’s Guidelines. 56 Fed. Reg. at 35,586-35,589.

However, DOJ did not respond to public comments regarding individual Standards, nor did DOJ explain the agency’s reasoning in adopting a specific Standard or why it had rejected alternative language suggested by persons commenting on the proposed Standards. That task was left to the Access Board.

See, e.g.,

56 Fed. Reg. at 35,587 (in DOJ’s view, the substantive comments received regarding the proposed Standards “have been addressed adequately in the final ADAAG. Largely in response to comments, the [Access] Board made numerous changes from its proposal ... ”)

The macro-level commentary by DOJ stands in stark contrast to the detailed commentary that the Access Board published discussing the comments it had received regarding each of the proposed guidelines, re

*741

sponding to those comments, and explaining what changes the Board had made (or not made) in response to the comments and the reasons for those decisions.

See

56 Fed. Reg. 35,408 -453.

The notice and comment rules have “never been interpreted to require [an] agency to respond to

every

comment, or to [analyze]

every

issue or alternative raised by comments.”

American American Mining Congress v. U.S. EPA,

907 F.2d 1179 , 1187-88 (D.C.Cir.1990) (emphasis added and citation omitted). However, the separate commentary published by DOJ falls far short of the mark. It does not respond to

any

comments or analyze

any

issues or alternatives raised by comments regarding

specific

standards, as opposed to the macro-level question of whether DOJ should adopt this group of standards at all.

Cf. Gamboa,

80 F.3d at 1346 ;

United States Satellite Broadcasting Co. v. FCC,

740 F.2d 1177, 1188 (D.C.Cir.1984) (“agency need not respond to every comment so

long as it responds in a reasoned manner to significant comments received

”) (emphasis added);

Idaho Farm Bureau Federation v. Babbitt,

58 F.3d 1392, 1404 (9th Cir.1995) (agency must respond to significant comments which, if adopted, would require a change in the agency’s proposed rule).

60

If the Access Board’s response to public comments regarding individual Guidelines was not implicitly incorporated by DOJ, then the agency did not respond to those comments before it adopted the Standards as binding regulations. Admittedly, there may have been little purpose in DOJ responding to comments regarding each individual Standard, if DOJ’s Standards had to be consistent with the Access Board’s guidelines and DOJ thus had little discretion to alter those Standards. Nonetheless, in its response to the public comments, the Access Board sometimes offered a limiting interpretation of a proposed Guideline which, in the Board’s view, adequately addressed the concerns raised in that comment without the necessity of amending the proposed regulation. The Board also explained why it had established (or not established) certain requirements. Thus the issue here is not just whether the agency allegedly should have responded to public comments regarding the proposed rulemaking but whether an agency is bound by the responses that were in fact given.

This court does not understand how DOJ can simply disavow those limiting interpretations and the other responses by the Access Board to public comments regarding the substance of the ADAAGs/Standards — comments that DOJ, in its notice of proposed rulemaking, had specifically instructed the public to submit to the Access Board rather than to DOJ. 56 Fed. Reg. at 7479. If the Access Board’s commentary was not binding upon DOJ, then that commentary and the entire notice and comment procedure were largely an empty exercise. Moreover, by representing that the comments that DOJ had received from the public regarding the proposed rule had been “addressed adequately in the final ADAAG” and by the “numerous changes” that the Access Board had made in response to those comments, DOJ implicitly endorsed the Access Board’s response to the comments and the revisions that the Access Board had made in response to those comments.

The court also is influenced by the unusual two-step procedure that Congress mandated here, including a directive that the regulations issued by DOJ be “consistent with” the

*742

guidelines issued by the Access Board. 42 U.S.C. § 12186 (c). This is not a case where the agency elected, on its own, to borrow some language from another agency’s work product. DOJ was legally obliged to promulgate regulations “consistent with” the guidelines issued by the Access Board, and by DOJ’s own admission the two agencies worked closely together in drafting those guidelines.

The court concludes that the Access Board’s response to public comments regarding the proposed Guidelines implicitly was adopted by DOJ when the latter proposed to, and then did, adopt as its own accessibility standard the draft Access Board guidelines,'

“with any amendment made by the [Access Board] during its rulemaking process.”

56 Fed. Reg. 7452 , 7478-79 (Feb. 22, 1991) (emphasis added).

(b) Other Arguments Regarding Lines of Sight Over Standing Spectators

The parties have devoted considerable effort to debating whether — prior to July 1991 — the architectural community customarily designed wheelchair spaces to provide sightlines over standing spectators. It does not appear that there was unanimity in that regard.

Cf. Paralyzed Veterans,

117 F.3d at 583 (reaching a similar conclusion.) In addition, the parties’ submissions often failed to distinguish between the sightlines utilized in designing conventional seating and those utilized in designing wheelchair seating, which are two very different issues.

In any event, the court concludes that this issue is of little relevance. The ADA was intended to usher in a new era for persons with disabilities. Accordingly, whether architects historically designed either conventional seating or wheelchair spaces to provide sightlines over standing spectators is not controlling in determining obligations under the ADA. Defendant also contends that Standard 4.33.3 was derived from an earlier ANSI standard, and should be interpreted similarly. However, in response to public comments the Access Board modified the language of Standard 4.33.3 so that it differs from the earlier ANSI standard, hence that is not a reliable basis for interpreting the new Standard. The prior standard also was a voluntary standard that had not been interpreted by the courts or enforced by DOJ.

A more serious defect in the parties’ contentions is their assumption that the term “lines of sight comparable to those for members of the general public” was referring to the line of sight in relation to standing spectators. After reviewing the text of the final rule, its development, and the various commentaries, the court concludes that Standard 4.33.3 actually was concerned only with the

dispersal

of wheelchair spaces — that those spaces had to be situated so as to provide “a choice of admission prices and lines of sight comparable to those for members of the general public.”

Cf.

56 Fed. Reg. at 2380 (original draft of rule: “Wheelchair areas shall be an integral part of any fixed seating plan and shall be

dispersed

throughout the seating area. They shall ... be

located

to provide lines of sight

comparable to those for dll viewing areas.”)-,

56 Fed. Reg. at 35,514 (final draft of rule: “Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.”); 56 Fed. Reg. at 35,440 (commentary explaining changes to final draft of rule: “The requirements in 4.33.3 for

dispersal

of wheelchair seating spaces have been modified. Wheelchair seating spaces must be an integral part of any fixed seating plan and be

situated

so as to provide wheelchair users a choice of admission prices and lines of sight comparable to those available to the rest of the public.”); and 57 Fed. Reg. 60,612 , 60,618 (Dec. 21, 1992, commentary summarizing earlier rulemaking: “The Board received a number of comments which recommended that ADAAG 4.33 (Assembly Areas) be expanded to address other issues such as companion seating, integration and dispersal, and transfer seating. An overwhelming majority of responses favored including a provision requiring lines of sight over standing spectators in sports arenas and other similar assembly areas.... After careful review of comments.... the Board modified the scoping provisions in the final ADAAG for wheel

*743

chair seating, added requirements for transfer seats and companion seating,

and clarified the dispersal

requirement.... Additionally, the Board felt it was essential to conduct further research on assembly areas with respect to other recommendations received in response to the rulemaking”) (emphasis added).

I conclude that the term “lines of sight” in the final rule was a reference to the distribution of the seats in the arena or stadium,

e.g.,

views from behind the plate, or first and third base, or the fifty-yard line. That is consistent with the court’s determination (and DOJ’s position) that it is not enough to simply provide a few token seats in each price range, or to concentrate all of the wheelchair spaces at a large arena in the corners of the end zone. They must be dispersed around the building to provide a choice of sightlines comparable to those available to the general public.

61

Standard 4.33.3 does not purport to decide whether lines of sight over standing spectators are — or are not — necessary in order to comply with the ADA. On the contrary, the Access Board expressly deferred that decision until a subsequent rulemaking, though implying that there would be such a requirement and only the details remained to be determined. 56 Fed. Reg. at 35,440 (“The issue of lines of sight over standing spectators will be addressed in guidelines for recreational facilities.”) Consequently, the interpretation of Standard 4.33.3 expressed in the 1994 TAM supplement is an attempt to impose a new substantive obligation, which may not be accomplished under the rubric of an “interpretive regulation.”

(c) The Access Board’s Change of Heart.

DOJ has furnished this court with an affidavit from the Executive Director of the Access Board, Lawrence W. Roffee, Jr., which states that the Access Board “has acquiesced in, and defers to,” DOJ’s interpretation of Standard 4.33.3 regarding sightlines over standing spectators. Mr. Roffee did not cite to any formal vote by the Board, or any public notice of the agency’s change in position. I decline to recognize a materially different interpretation of a regulation that is first announced in the form of an affidavit proffered during litigation.

If the Access Board wishes to revise its interpretation of ADAAG 4.33.3 to include a requirement for lines of sight over standing spectators, it will have to do so through notice and comment rulemaking.

Cf Fairfax Nursing Center, Inc. v. Califano,

590 F.2d 1297, 1301 (4th Cir.1979) (“The Secretary is not free to promulgate regulations and then change their meaning by ‘clarifications’ or ‘interpretations’ issued without formal notice and comment.”);

Caruso,

968 F.Supp. at 215 (“the notiee-and-eomment requirements of the APA cannot be evaded by merely interpreting an existing regulation to cover subject matter consciously omitted from its scope.”)

(d) Whether the ADA itself Provides an Independent Source of Authority for Requiring Lines of Sight Over Standing Spectators.

If the Access Board had addressed the sightlines issue in a subsequent rulemak-ing — as it had pledged to do in 1991 — we might not be having this debate today. Instead, the years have slipped by while the

*744

Access Board has “continued to study this matter.” Roffee Decl. ¶ 5. On December 21, 1992, the Access Board published a draft rule covering Title II of the ADA, which pertains to facilities owned by state and local government. In the commentary to that draft, the Access Board observed that:

During the initial rulemaking, the board requested information on lines of sight at seating locations for persons who use wheelchairs. See 56 Fed. Reg. 2296 (Jan. 22, 1991). The Board received a number of comments which recommended that ADAAG 4.33 (Assembly Areas) be expanded to address other issues such as companion seating, integration and dispersal, and transfer seating. An overwhelming majority of responses favored including a provision requiring lines of sight over standing spectators in sports arenas and other similar assembly areas. A few commenters opposed such a provision because it would either be unenforceable, add significant costs or reduce seating capacity. Some commenters felt that an entry level or front row seating location was acceptable if companion seating was available for more than one person.

After careful review of comments and of State accessibility codes and standards, the Board modified the scoping provisions in the final ADAAG for wheel chair seating, added requirements for transfer seats and companion seating, and clarified the dispersal requirement. See 56 FR 35408 (July 26, 1991). Additionally, the Board felt it was essential to conduct further research on assembly areas with respect to other recommendations received in response to the rulemaking. The Board is currently sponsoring a research project on accessibility in assembly areas which will provide additional information for future revisions of ADAAG. The Board intends to address the issue of lines of sight over standing spectators in the guidelines for recreational facilities which will be proposed at a future date.

57 Fed. Reg. 60,612 , 60,618 (Dec. 21, 1992). In other words, seventeen months after the Access Board had stated its intention to address the sightlines issue, the Board was still thinking about the problem. It even solicited additional comments on the subject.

Id.

In March 1994, the Access Board informally circulated a draft of a proposed amendment to ADAAG 4.33.3 which would require that only 70 percent of the wheelchair spaces have lines of sight over standing spectators. DOJ responded that the figure should be 100 percent. The Access Board’s executive director reassured DOJ that the Access Board had not yet adopted the 70 percent requirement and would consult with DOJ in drafting the final rule. Letter from Lawrence Roffee to Deval Patrick (dated May 4,1994).

On June 20, 1994, the Access Board published the interim final rule covering facilities owned by state and local government. 59 Fed. Reg. 31,676 (June 20, 1994). In the commentary, the Access Board mentioned that it was conducting research on “the design issues associated with providing integrated and dispersed accessible seating locations .... The Board intends to address issues associated with assembly areas in a separate rulemaking once this research is completed.” 59 Fed. Reg. at 31,679. After three years, the Access Board apparently was still thinking about the problem.

On September 21, 1994, the Access Board published its notice of the draft recreational guidelines. 59 Fed. Reg. 48,542 . Contrary to the earlier representations, the sightlines issue was not addressed in those guidelines. In response to the court’s questions, DOJ reports that the Access Board is still studying the matter, but hopes to issue a draft guideline regarding sightlines over standing spectators some time during 1998.

62

United States’ Responses to Second and Third Sets of Questions Posed by Court at 7.

*745

Over six years have now passed since the Access Board first announced its intention to address the sightlines issue, and more than seven years have elapsed since Congress directed the Access Board to promptly promulgate the design standards needed to implement Title III of the ADA. The Board has stated that there is strong — even “overwhelming” — support for requiring sightlines over standing spectators.

See, e.g.,

57 Fed. Reg. at 60,618. To this court’s knowledge, the Board has never indicated that it is having second thoughts about the need for such a requirement. On the contrary, the Board expects to issue a draft regulation governing sightlines over standing spectators “sometime in 1998.” Roffee Decl. ¶¶ 6-7.

Admittedly there are some aspects of the problem that warrant careful scrutiny: how to balance the conflict between sightlines and integration, what percentage of wheelchair spaces should have enhanced sightlines, safety considerations, and the technical specifications for such sightlines. Still, such studies seemingly could have been completed in a matter of months. Certainly Congress expected that would be the case. The Access Board nonetheless has spent more than six years simply studying the issue.

In the interim, arenas and other public assembly areas are being designed and built around the country with little guidance from the Access Board on what is required in the way of sightlines. These structures will be with us for many years to come. To the extent those structures are being designed and built without sightlines over standing spectators, the Access Board, by its inaction, arguably has perpetuated discrimination against another generation of persons in wheelchairs notwithstanding a congressional mandate to the contrary. The failure to make a decision is itself a decision to maintain the

status quo.

Alternatively, if the Access Board has concluded that it is not feasible, or desirable, to require sight lines over standing spectators, then the agency should publicly disclose that decision.

When confronted with the first opportunity to interpret another statute of great breadth — the National Environmental Policy Act — Judge Skelly Wright observed that the judicial role in that instance was to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.”

Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission,

449 F.2d 1109, 1111 (D.C.Cir.1971). In keeping with Judge Wright’s admonition, I have considered whether — in light of the Access Board’s abject failure to timely address the issue — the DOJ Standards should be viewed as exclusive or whether a duty to provide lines of sight over standing spectators may also be enforced based upon the general non-discrimination provisions of Title III.

Plaintiffs and DOJ contend that the Standards are exclusive only as to those matters that specifically are addressed in those standards. For instance, if the standards require 24 parking spaces for persons with disabilities, this court would not have discretion to require defendant to provide 36 spaces. However, they argue, if a design issue is not addressed in the Standards, then the court must turn to the general non-discrimination requirements of 42 U.S.C. §§ 12182 (a) and 12183(a)(1) and 28 CFR § 36.201 (a). Some support for that position is found in 28 CFR § 36.213 as well as in the commentary that DOJ published on July 26,1991, to accompany the final Title III regulations.

See

28 CFR § 36.213 (“Subparts C and D [which include the design Standards] of this part provide guidance on the application of the statute to specific situations”); 56 Fed. Reg. at 35,563 (“Resort to the general provisions of subpart B is only appropriate where there are no applicable specific rules of guidance in subparts C or D” [the latter being the design Standards]) and at 35,576 (“To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section is the safest guide.”) DOJ also observes that the ADA is a civil rights law, not a building code, and should be interpreted accordingly. United States’ Responses to Second and Third Sets of Questions at 13.

Defendant retorts that the Standards are exclusive as to all design issues (as opposed to operational policies). In defendant’s view,

*746

the designer need do no more than what is expressly required in the Standards. If a design issue is not addressed in the Standards, then the designer has no Title III obligations with.respect to that design element.

Both sides make strong policy arguments, but in the end I am convinced that Congress intended that compliance with the design standards enacted by the Access Board and DOJ for new construction would be deemed to satisfy the Title III obligations with respect to the design of a structure. Congress specifically directed the Aceess Board to issue guidelines to implement Title III. 42 U.S.C. § 12204 (a). The guidelines “shall establish additional requirements, consistent with this chapter, to ensure that buildings [and] facilities ...

are accessible, in terms of architecture and design

... to individuals with disabilities.” 42 U.S.C. § 12204 (b) (emphasis added). The DOJ regulations must be “consistent with” the Aceess Board guidelines. 42 U.S.C. § 12186 (c).

Congress also provided that until the DOJ regulations had been issued, compliance with the UFAS (or the ADAAGs, if they had been promulgated) “shall suffice to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities as required under section 12183 of this title.” 42 U.S.C. § 12186 (d). The implication is that compliance with the DOJ regulations, once issued, would similarly suffice to satisfy the requirements of § 12183.

In addition, § 12183(a)(1) provides that discrimination includes “a failure to design and construct facilities ... that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection

in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter

...” The implication is that the standards are the exclusive source for design requirements.

Further support for that position is found in the enforcement provisions of Title III, which require the court to consider as a mitigating factor “whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability,” 42 U.S.C. § 12188 (b)(5), but notably omit any mention of whether the entity could have anticipated the design requirement. Again, the implication is that design requirements were to be spelled out in detail in the Standards, while auxiliary aids and operational policies would be covered by more general rules and, therefore, were subject to review on a case-by-case basis.

I also note that ADAAG defines the term “accessible” as “a site, building, facility or potion thereof that complies with these guidelines.” ADAAG 3.5 (adopted by DOJ as Standard 3.5). That suggests that compliance with the guidelines constitutes compliance with the ADA requirements for new construction.

The interpretation of the ADA proposed by DOJ and plaintiffs is very problematic. It would allow any person to file an action contending that, in the opinion of this particular plaintiff, a design feature ought to have been included in the Rose Garden or some other new structure. The courts are ill-equipped to evaluate such claims and to make what amount to engineering, architectural, and policy determinations as to whether a particular design feature is feasible and desirable. In addition, although plaintiffs would limit such claims to design issues that DOJ and the Access Board have not expressly addressed, the courts often would have no way of knowing whether the Access Board had considered enacting such a requirement, but decided against it. It also would be difficult for anyone to design a new arena or other structure if the design requirements are subject to being changed retroactively.

I conclude that the Title III Standards promulgated by DOJ are exclusive as to all architectural design issues, and this court may not enforce a requirement for lines of sight over standing spectators on the basis of the general non-discrimination provisions in Title III itself.

63

Cf Caruso,

968

*747

F.Supp. at 216-17 (reaching similar conclusion).

C. Whether Defendant has any Defense to the Enforcement of a Requirement to Provide Lines of Sight over Standing Spectators.

I have concluded that in constructing the Rose Garden defendant was not required to provide lines of sight over standing spectators. However, I also recognize that this is an issue of first impression in this Circuit, and my conclusion is contrary to that of the eminent jurists who decided

Paralyzed Veterans.

If the Ninth Circuit disagrees with my analysis — and concludes that the TAM is a valid interpretive regulation, or that a line of sight requirement may be enforced directly under the ADA even in the absence of a specific Standard — then it will be necessary to decide whether defendant has any other defense to the enforcement of the line of sight requirement. To simplify matters for the Ninth Circuit, and to expedite any appeal, I will set forth in this section of the opinion how I would resolve that issue.

I would hold that defendant has no other defense, equitable or otherwise, to the enforcement of the line of sight requirement. The defense of “structural impracticability” is inapplicable here, since that defense is limited to those rare circumstances involving sites with unusual topographical features that preclude compliance with the Standards. Standard 4.1.1(5)(a). There are no unusual topographical features at the site of the Rose Garden.

Defendant also has asserted an equitable defense, relying on cases such as

Pfaff,

88 F.3d 739 . In

Pfaff ,

the Ninth Circuit declined to retroactively enforce an agency’s new interpretation of a law when the new interpretation — which was adopted by adjudication — represented a radical departure from the agency’s prior interpretation of the law, the petitioner had relied substantially and in good faith upon the prior interpretation, the petitioner was subject to fines or damages for having violated a requirement of which it was unaware and, “most egregiously,” the agency had made “inconsistent and misleading misrepresentations” which had “led [the petitioner] down the garden path.”

Id.

at 748 .

Those circumstances are inapposite here. Defendant is not subject to damages or fines, nor is there any basis for concluding that defendant relied “in good faith” upon an earlier interpretation of the law or that the government “led [defendant] down the garden path.” On the contrary, the undisputed evidence

64

demonstrates that defendant was well aware that the law might be interpreted to require lines of sight over standing spectators but chose to ignore that possibility and proceed with construction notwithstanding.

Defendant has represented that the design phase of the Rose Garden commenced in April 1991, which was after the ADA had become law and several months before the Access Board issued the final ADAAGs. Defendant knew that this was one of the first indoor arenas in the nation that would be subject to the requirements of the newly-enacted Title III of the ADA. Defendant was aware that at this early date the courts and the administrative agencies had not explored the full extent of Title Ill’s impact upon the design and operation of indoor arenas. Any competent attorney would have urged his or her client to proceed with great caution, particularly when that client was about to invest a quarter of a billion dollars in a project that would be subject to those new (and as yet untested) standards. Defendant is in fact represented by a number of very capable attorneys.

*748

Defendant contends that before passage of the ADA, the term “comparable lines of sight” was generally construed as referring only to “seated” lines of sight, hence defendant reasonably concluded that it was required to do nothing more in designing the Rose Garden. The

Paralyzed Veterans

court concluded that the phrase had not developed a “universally accepted linguistic meaning,” 117 F.3d at 583 , and the record in the present case supports that determination. To the extent defendant contends that sightlines for wheelchair users have always been computed based upon seated spectators, that is a dubious defense.

It is no answer to say this is the way we’ve always done it — we’ve always discrimináted against persons with disabilities. A prudent designer would have understood that,'in enacting the ADA, Congress intended to do more than to simply maintain the

status quo.

Congress intended to establish higher standards for newly constructed structures, and to change the manner in which buildings were designed so that persons with disabilities could more fully share in the benefits that are available from public accommodations. Had Congress been satisfied with the

status quo,

there would have been no point in enacting the ADA. In a project of this magnitude, it was unreasonable for defendant to simply rely upon the law as it (allegedly) existed prior to the ADA, without acknowledging that a sea change had occurred in the interim and actively attempting to discern the significance of that dramatic change.

In any event, the design phase allegedly commenced in April 1991. Three months earlier, the Access Board had formally requested comments on whether it should require lines of sight over standing spectators. 56 Fed. Reg. at 2315. Defendant knew that such a requirement could be incorporated in the ADAAGs that were presently under development. Hence, from the very beginning defendant knew that such a requirement might be forthcoming. A prudent designer might have incorporated those sightlines into its plans. Defendant elected not to do so.

In July 1991, the Access Board temporarily deferred the sightlines issue. Even assuming that defendant relied upon the Access Board commentary as an indication that Standard 4.33.3 did not

presently

contain an express requirement that lines of sight be provided over standing spectators, defendant was now on notice that the agency was actively considering such a requirement, that formal adoption of such a requirement was being urged by many commenters, that the agency intended to address the issue in a forthcoming rulemaking, and that the Access Board believed that such a requirement might be both necessary and authorized by Title III of the ADA.

This should have been a giant caution sign to anyone about to construct a new indoor arena that was subject to the still-evolving requirements of Title III of the ADA. Groundbreaking for the Rose Garden was still two years away, and the structural components for the seating bowl would not even be ordered until 29 months later. Again, a prudent designer might have incorporated those sightlines into its plans. A conscientious designer might even have gone beyond the minimum legal requirements and voluntarily incorporated enhanced sightlines so that customers who rely upon wheelchairs could actually see the events that were to be exhibited at the Rose Garden. Defendant elected not to do so. On the contrary, defendant decided that it would not voluntarily provide enhanced sightlines for wheelchair users and it was not interested in even discussing the issue absent a legally binding requirement. Collier Depo. at 137-38.

Defendant has cited the remarks of Irene Bowen at a November 1992 meeting of baseball owners as evidence that it was led to believe that there was no “line of sight” requirement. However, in response to the court’s questions, defendant conceded that there is no evidence that defendant was even aware of those remarks prior to the commencement of the instant litigation, let alone that defendant relied upon those remarks in the design and construction of the Rose Garden. Thus I need not even consider whether it would be reasonable, in designing a quarter-billion dollar arena, to rely upon remarks made by a mid-level official in a lame duck administration at a meeting of baseball owners. The same is true of the affidavit from

*749

John Dunne. Defend

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