# Petition for Writ of Certiorari — California California Speedway Corp. v. Miller (No. 08-782) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0906%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text upreme Court, U.S. - FILED 18-782 OFC 15 2008 Jn The OFFICE OF THE CLERK Supreme Court of the United States 7 THE CALIFORNIA SPEEDWAY CORPORATION, V. Petitioner, ROBERT MILLER, Sf Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit + PETITION FOR A WRIT OF CERTIORARI + LEWIS BRISBOIS BISGAARD & SMITH LLP JOHN S. LOWENTHAL BRYAN R. REID RIMA M. BADAWIYA 650 East Hospitality Lane Suite 600 San Bernardino, CA 92408 Telephone: (909) 387-1130 LEWIS BRISBOIS BISGAARD & SMITH LLP JEFFRY A. MILLER MATTHEW B. STUCKY 550 West C Street Suite 800 San Diego, CA 92101 Telephone: (619) 233-1006 LEWIS BRISBOIS BISGAARD & SMITH LLP MICHAEL K. JOHNSON Counsel of Record One Sansome Street Suite 1400 San Francisco, CA 94104 Telephone: (415) 362-2580 LEWIS BRISBOIS BISGAARD & SMITH LLP CAROLINE E. CHAN 221 North Figueroa Street Suite 1200 Los Angeles, CA 90012 Telephone: (213) 250-1800 Counsel for Petitioner COCKI AW BRIEF PRINTING CO OR CALL CO QUESTION PRESENTED Must a court afford deference to a government agencys interpretation of ambiguous regulatory language, where the proffered interpretation covers a subject matter that the agency had previously inten- tionally excluded from the scope of its notice and comment rulemaking? PARTIES AND RULE 29.6 STATEMENT The parties include the petitioner, The Califor- nia Speedway Corporation, and the respondent, Mr. Robert Miller. International Speedway Corporation is the parent corporation and owns 10% or more of the stock of The California Speedway Corporation. TABLE OF CONTENTS QUESTION PRESENTED PARTIES AND RULE 29.6 STATEMENT OPINIONS BELOW JURISDICTION STATUTORY AND REGULATORY PROVI- SIONS INVOLVED STATEMENT OF THE CAS A. Statutory Background B. The Decision of the District Court C. The Decision of the Ninth Circuit (“the Decision Below”) D. The Denial of Rehearing En Banc REASONS FOR GRANTING THE WRIT I. THE NINTH CIRCUITS DECISION INVOLVES A QUESTION OF EXCEP- TIONAL IMPORTANCE GIVEN THE INTER-CIRCUIT SPLIT OF AUTHOR- ITY AND THE CONFLICT WITH THE DECISION OF THE THIRD CIRCUIT AUTHORED BY JUSTICE ALITO GRANTING THE PETITION FOR CER- TIORARI IS ALSO DESIRABLE AND WARRANTED IN ORDER TO HEAL THE INTRA-CIRCUIT SPLIT CREATED BY THE NINTH CIRCUIT’S DECISION See See ee eh ances eee TABLE OF CONTENTS - Continued Page THE NINTH CIRCUITS EXPANSION OF ADA LIABILITY RAISES ISSUES OF NATIONAL IMPORTANCE REQUIRING GUIDANCE FROM THIS COURT CONCLUSION APPENDICES Opinion of the Court of Appeals for the Ninth Circuit filed on August 8, 2008 District Court Order Granting Defendant’s Motion for Summary Judgment filed on Sep- tember 8, 2006 Judgment filed on September 18, 2006 Order Denying the Petition for Rehearing En Banc filed on September 16, 2008 Administrative Procedure Act Fae, IE FI ove ss Svs vc initceevcerecsecitmenvens App. Fas OEIC IA) oviscinnscvticveescisviinevvaossaseses App. Americans With Disabilities Act OE UTI, BOCCIOR TIGL oon cscs conics ceesene App. 42 UDB. section IZIGRaNk 1) «.. ccc.20.00...4..0000. App. 42 U.S.C. section 12186(b) and (c)........... App. 60, 6 42 U.S.C. section 12206(c)(3) TABLE OF CONTENTS — Continued Page Code of Federal Regulations 28 C.F.R., Appendix A regarding section 28 C.E.R. 36:406 (DOJs Final Title ITI Regula- tions) Federal Register i since np eee App. 56 Fed. Reg. 35,514 (Final ADA Accessibility Guidelines including section 4.33.3) 56 Fed. 57 Fed. o7 Fed. 64 Fed. 64 Fed. 69 Fed. . 44,392-93 FO FO. TO, BE ins ioiisciieeiee noe App. Americans With Disabilities Act Title III Techni- cal Assistance Manual, 1994 Supplement III-7.5180 Assembly Areas.................0..00cc00ee App. TABLE OF AUTHORITIES CASES American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106 (D.C. Cir. 1993) Caruso v. Blockbuster-Sony Music Entertain- ment Centre at the Waterfront, 193 F.3d 730 (3d Cir. 1999) passim Hemp Industries v. Drug Enforcement Administration, 333 F.3d 1082 (9th Cir. 18, 19, 20, 22, 23 Independent Living Resources v. Oregon Arena Corporation, 982 F. Supp. 698 (D. Or. 11, 14, TS, 16, 19 Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) passim Thomas Jefferson University v. Shalala, 512 U.S. 504, 129 L.Ed.2d 405, 114 S.Ct. 2381 (1994) United States of America v. AMC Entertatin- ment, Inc., 2008 U.S.App. LEXIS 24645 (Dec. 5, 2008) United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262 (D. Minn. 1997) STATUTES ZB C.F. 9 36.406 .....”? erroneous or inconsistent with the rcgulation.’” Bay Area Addiction Research v. City of Antioch, 179 F.3d 725, 732 n.11 (9th Cir. 1999) (quoting Thomas Jeffer- son Univ., 512 U.S. at 512). [4] The language of § 4.33.3 requiring “lines of sight comparable to those for members of the general public” is ambiguous. Indeed, both the Third and the D.C. Circuits, although they ultimately reach oppo- site conclusions on the merits, agree that the plain language of the regulation is ambiguous and subject to differing interpretations. See Caruso, 193 F.3d at 733 (“In the end it seems that both interpretations of the ‘lines of sight’ language are plausible.”); Paralyzed Veterans, 117 F.3d at 583 (“the phrase is ambiguous”). App. 15 We agree that the phrase “lines of sight” in § 4.33.3 is subject to several interpretations. One possible interpretation is that the phrase means that wheelchair patrons must have a view without physical obstructions. See Lara v. Cinemark USA, Inc., 207 F.3d 783, 788-89 (5th Cir. 2000). We have already held that this reading is too narrow to be compelled by the language of § 4.33.3, and the Attorney General is entitled to read the provision more broadly. Regal Cinemas, 339 F.3d at 1132. A more plausible interpretation of the phrase is that it means that wheelchair areas are to be dis- persed throughout a facility, such that wheelchair users have a variety of horizontal viewing angles from which to choose. See Caruso, 193 F.3d at 732. This ensures that wheelchair patrons at a footbail game are not all stuck, for example, behind the goalposts. This interpretation is supported by the fact that § 4.33.3 also requires a “choice of admission prices” to account for the difference between an end zone and a mid-field seat. Alternatively, the phrase can be read to require more than horizontal dispersal; it could be read to require vertical dispersal as well, so that patrons have a choice of seats — for example, between the orchestra and the loges — to obtain a different viewing angle. Under this reading, the phrase “lines of sight” would refer to the angle of sight between the viewer and the stage, screen, or playing field. The latter definition of “lines of sight” would encompass both the App. 16 notion of a horizontal line of sight and a vertical line of sight. Finally, yet another interpretation does not merely involve the horizontal or vertical dispersal of the wheelchair seating options, but rather suggests that the line of sight of a wheelchair patron must be comparable to the line of sight of a non-wheelchair patron who has chosen the same seat. Under this interpretation it is easy to see that at some events (principally sporting events), a “comparable” line of sight would encompass an unobstrugfed line of sight when other patrons are standing. When the crowd is generally standing, most spectators can also stand and, in doing so, enable themselves to substantially see the event. Therefore, in order to be given a com- parable line of sight, wheelchair users must also be able to see the event when the crowd is standing. Any of these interpretations would be a reason- able reading of the ambiguous plain language of the regulation. In fact, the phrase “lines of sight compa- rable to those for members of the general public” could be interpreted to require a combination of the proposed interpretations. That is, it is possible that a comparable line of sight means that the view is unobstructed by physical obstacles, that the seats must be horizontally and vertically dispersed, and that wheelchair patrons must be able to see over standing patrons. [5] In its 1994 supplement to the TAM, the DOJ made it clear that at the very least the phrase “lines App. 17 of sight comparable to those for members of the general public” in § 4.33.3 required that “in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheel- chair locations must provide lines of sight over spec tators who stand.” TAM § III-7.5180 (1994 Supp.). The Attorney General’s interpretation of § 4.33.3 is “neither plainly erroneous [nJor inconsistent with the regulation.” Thomas Jefferson Univ., 512 U.S. at 512. As a linguistic matter it is perfectly reasonable to interpret the term “lines of sight comparable to those for members of the general public” as requiring lines of sight that are comparable in the actual conditions under which a facility operates. If spectators are widely expected to stand during the key moments of an event, then comparable lines of sight for wheel- chair users could be lines of sight that enable the wheelchair users to see during those moments. If the spectators stand during the singing of the national anthem, routinely jump to their feet during the fourth quarter, or insist on standing on their chairs during the third overtime, it does not take a fertile legal imagination to understand that relatively :immobile patrons will not have a comparable line of sight. [6] Furthermore, the DOJ’s 1994 interpretation is consistent with the statutory requirement that the facilities be “readily accessible to” and “usable by” persons with disabilities. 42 U.S.C. § 12183(a)(1). To meaningfully use the Speedway facilities, a wheel- chair patron needs to be able to see the event in the circumstances under which the race typically takes App. 18 place, with a standing audience. Otherwise the Speedway race track is not “usable” as a practical matter. Because the DOJ’s interpretation is a reason- able, practical construction in light of the ambiguity of the regulation, it is entitled to substantial defer- ence. Our decision is consistent with our treatment of the DOJ’s “comparable lines-of-sight” regulations in the context of theater seating in Regal Cinemas, 339 F.3d at 1127. The district court had held that “the language about ‘lines of sight comparable to those for members of the general public’ in § 4.33.3 does not require that wheelchair-accessible seating afford patrons comparable viewing angles to those in non accessible seating.” Jd. at 1129 (citing Oregon Para- lyzed Veterans of Am. v. Regal Cinemas, Inc., 142 F. Supp. 2d 1293, 1297-98 (D. Or. 2001)). The district court had followed Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000), in which the Fifth Circuit pointed out that “questions regarding ‘viewing angle’ did not arise until well after the DOJ promulgated section 4.33.3” and concluded that “lines of sight” referred to nothing more than “unobstructed views.” Id. at 788-89. [7] We rejected the Fifth Circuit’s reasoning and reversed the district court. We concluded that “lines of sight” “[iJn the context of a movie theater, [] means a line extending from the viewer’s eye to the points on the screen where the film is projected, taking into account the angle from the viewer’s eye to those points.” Regal Cinemas, 339 F.3d at 1131. We framed App. 19 the question as “whether it is unreasonable for DOJ to interpret ‘comparable line of sight’ to encompass factors in addition to physical obstructions, such as viewing angle. The answer, in light of the plain meaning of the regulation both in general and as understood in the movie theater industry, is ‘no.’” Jd. at 1132. Accordingly, we held that DOJ’s interpreta- tion of § 4.33.3 was “valid and entitled to deference.” Id. at 1133. [8] A sporting event presents a different set of challenges from a movie theater, which has a fixed screen and relatively placid patrons. By contrast, sporting events typically involve live action, moving rapidly over playing surfaces many times larger than a movie screen. When the audience — like the athletes is in motion, arena designers, owners and patrons have a set of problems to address that are not present in a theater setting. It was not unreasonable for the DOJ to interpret “lines of sight” as the actual “line extending from the viewer’s eye to the [playing field], taking into account the angle from the viewer’s eye to those points.” /d. at 1131. The TAM as the DOJ’s Own Interpretation of the Access Board Guidelines {9] As in Lara, a decision we declined to follow in Regal Cinemas, the Speedway argues that the DOJ’s position is an after-acquired view, one that “did not arise until well after the DOJ promulgated sec- tion 4.33.3.” Lara, 207 F.3d at 788-89. Indeed, the App. 20 Speedway argues not just that the DOJ’s position is an after-acquired view, but that the DOJ’s position on lines of sight in the 1994 TAM suppiement substan- tially departs from the Access Board’s original com- mentary on lines of sight. Asserting that the Access Board’s commentary must be imputed to the DOJ, the Speedway contends that the DOJ’s subsequent posi- tion is not entitled to substantial deference because it was not promulgated according to notice and com- ment rulemaking. The district court in this case agreed that “the board’s commentary must be imputed to the DOJ,” although it also observed that if it were “to wrile on a clean slate, [it] would be tempted to hold that § 4.33.3 requires lines of sight over standing spectators.” 453 F. Supp. 2d at 1203-04. In Caruso, the Third Circuit took a similar position, relying on the following factors: 1) thre DOJ referred all comments to the Boards; 2) the DOJ relied on the Board to make adequate changes based on those comments; 3) the Board spe- cifically changed the language of 4.33.3 in response to comments and explained that change in its commentary; 4) the DOJ was a ‘member of the board’ and ‘participated ac- tively ...in preparation of both the proposed and final versions of the [guidelines]’; and 5) the DOJ’s commentary stated that the final guidelines promulgated by the Board ade- quately addressed all comments. Caruso, 193 F.3d at 736 (citations omitted). App. 21 The district court’s point, supported by Caruso, is a fair one. See Thomas Jefferson Univ., 512 U.S. at 512 (we must defer “unless an alternative reading is compelled by other indications of the Secretary’s intent at the time of the regulation’s promulgation”) (emphesis added; citation omitted). After all, in its notice of proposed rulemaking, the DOJ stated that it “propose[d] to adopt [the Access Board’s] guidelines as the accessibility standard under this rule.” 56 Fed. Reg. at 7478-79. The same day as the Access Board published its standards, the DOJ formally “adopt[ed] the ADAAG as the accessibility standard” as its own. 56 Fed. Reg. at 35,585, and on that day, the Access Board stated that “the issue of lines of sight over standing spectators will be addressed [in the future] in guidelines for recreational facilities.” 56 Fed. Reg. at 35,440. [10] We understand why a reasonable reader might conclude that as of July 1991, the DOJ’s new ADA regulations did not address lines of sight over standing spectators. We do not think, however, that such a reading is “compelled” by the record. Se: Thomas Jefferson Univ., 512 U.S. at 512. When the DOJ adopted the Access Board’s guidelines as its own standards, it literally adopted the guidelines. 28 C.F.R. § 36.406(a) (“New construction and alterations subject to this part shall comply with the standards for accessible design published as appendix A to this part (ADAAG).”). It did not adopt any other Access Board commentary, notices of proposed rulemaking, or internal memoranda. Whatever the Access Board App. 22 thought of its own guidelines, the Department of Justice adopted the text of the guidelines themselves, not the Access Board’s interpretation of that text. The DOJ made the Access Boerd’s guidelines its own, and, having done so, it assumed responsibility for inter- preting the standards.’ As the Access Board has explained: “The Board’s guidelines serve as the baseline for standards used to enforce the ADA and the ABA. These standards, which are maintained by other Federal agencies, such as the U.S. Department of Justice under the ADA, will be updated according to the new guidelines. Jt is these standards, not the Board’s guidelines, which the public must follow.” U.S. Access Board, Americans with Disabilities Act and Architectural Barriers Act Accessibility Guide- lines n.p. (2004) (“Introduction”) (emphasis added). [11] There was good reason for the DOJ to adopt the text of the Access Board’s guidelines. The ADA instructed the Access Board to issue minimum guide- lines within nine months of enactment and ordered the Attorney General to issue regulations within one year. 42 U.S.C. §§ 12186(b), 12204(a). By Washington ‘he Access Board has explained the difference between its “suidelines” and the Attorney General's “standards”: “Guidelines are issued by the Board, standards by designated agencies such as DOJ ADA standards issued by DOJ ... in 1991 based on the Board’s original ADA Accessibility Guidelines (ADAAG) remain the standards to follow at this time.” U.S. Access Board, Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines n.p. (2004) (“Answers to Common Questions About the New ADA-ABA Guidelines” App. 23 standards, this required quick work. The Access Board's dutiful response to the mandate enabled the DOJ to get its own regulations into print on time. More importantly, the ADA mandated that the DOJ’s regulations “be consistent with the minimum guide- lines and requirements issued by the [Access Beard].” 42 U.S.C. § 12186(c). By formally adopting the Access Board’s guidelines, the DOJ ensured that its own regulations were “consistent with” the Access Board’s guidelines. It seems like an easy call for the Attorney General to piggyback on the Access Board’s hard work at getting the ADA up and running. Those guidelines, however, were only a launching point for the DOJ, which had to take care that its own regulations complied with the Access Board guidelines at a “minimum.” Jd. Nothing in the ADA or in the DOJ’s own regulations bound the Attorney General to the Access Board so long as the DOJ’s regulations satis- fied some “minimum” level of equivalence. The Attor- ney General was free to interpret the regulations in a manner that was more strict than contemplated by the Access Board. Therefore, the Access Board’s commentary should not be imputed to the DOJ. Once we admit that the line-of-sight regulations are ambiguous, that the DOJ did not bind itself to the Access Board’s interpretation of the guidelines, and that the Attorney General was free to interpret the regulations in a manner that was more strict than the Access Board's guidelines, we have no difficulty in concluding that the Attorney General could resolve any ambiguity in the DOJ’s regulations by taking a App. 24 stricter view of § 4.33.3 than the Access Board did when it adopted its guidelines. The DOJ did not have to wait for the Access Board to act. Indeed, the DOJ demonstrated its independence at a very early stage. The DOJ’s regulations became effective in January 1993, and it issued its first TAM that year, as required by 42 U.S.C. § 12206(c)(3). The first TAM did not address the standing spectator problem. The following year, in 1994, the DOJ pub- lished a supplement to the TAM and offered its first formal interpretation of the line-of-sight rule in § 4.33.3: “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.” TAM § III 7.5180 (1994 Supp.). The guidance in the TAM itself is plain; its relationship to § 4.33.3, obvious. C. The TAM as the DOJ’s Modification of Its Own Interpretive Rules Even if we were persuaded that the DOJ initially adopted the Access Board’s interpretation that § 4.33.3 simply did not address the problem of stand- ing spectators, the DOJ may change its mind. “The [Attorney General] is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation. ...[WJ]here the agency’s interpretation of [its regulation] is at least as plausi- ble as competing ones, there is little, if any reason not to defer to its construction.” Good Samaritan Hosp. v. App. 25 Shalala, 508 U.S. 402, 417 (1993). The only question is whether, in order to effectuate the change, the DOJ had to proceed through notice and comment. [12] We think that, even if the DOJ’s interpreta- tion constituted a change in the understanding of its original regulations, the DOJ was not required to proceed by notice and comment because both the Access Board’s original position (as imputed to the DOJ) and the TAM would constitute interpretive rules. See 5 U.S.C. § 553(b)(3)(A); Erringer v. Thomp- son, 371 F.3d 625, 630 (9th Cir. 2004) (holding that an agency can modify an interpretive rule without notice and comment). An interpretive rule is one “issued by an agency to advise the public of the agency’s con- struction of the statutes and rules which it adminis- ters.” Shalala v. Guernsey Mem’ Hosp., 514 U.S. 87, 99 (1995) (quotation marks and citation omitted). “(IJnterpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule,” whereas legislative rules “create rights, impose obligations, or effect a change in existing law pursuant to authority dele- gated by Congress.” Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003). [13] In one sense, the 1994 Supplement to the TAM imposed obligations that might not have been anticipated. We understand how, from the perspective of facility owners such as Speedway, the 1994 Sup- plement appears to be a legislative rule. On the other hand, the 1994 Supplement added nothing to the existing rule except a definition of an ambiguous App. 26 term; it merely clarified the DOJ’s view of the scope of § 4.33.3. That is the purpose of an interpretive rule. A rule does not become a legislative rule because it effects some unanticipated change; otherwise, only superfluous rules could qualify as interpretive rules. See Erringer, 371 F.3d at 632 (rejecting the argument that notice and comment must apply “where one unpublished policy is replaced by a revised version of that policy that significantly affects members of the public.”) We do not think that interpretive rules must be so useless. In sum, we conclude that the 1994 Supplement to the TAM was an interpretive rule and, even if it reflected a change in the DOJ’s thinking about comparable lines of sight, it was a reasonable interpretation of an ambiguous regulation that did not require notice and comment prior to publication. ITT. The regulatory scheme at issue in this case is complex, but our conclusion is simple: the DOJ’s interpretation of its own regulation is reasonable and therefore entitled to substantial deference. The judgment is REVERSED. App. 27 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT MILLER. ) Case No. EDCV 01-00434 SGL Plaintiff ) ORDER DENYING ) PLAINTIFF’S MOTION FOR ey ) SUMMARY JUDGMENT ; ) THE CALIFORNIA ) ORDER GRANTING SPEEDWAY , DEFENDANT'S MOTION CORPORATION, ) FOR SUMMARY JUDGMENT Defendant. ) (Filed Sep. 8, 2006) This matter is before the Court on the parties’ cross-Motions for Summary Judgment (plaintiff’s, filed on January 30, 2006, and defendant’s, filed on January 31, 2006). The Court has read and consid- ered the moving, opposition, and reply documents, as well as an evidentiary objection and the parties’ evidence. The Court has also considered an Amicus Brief, filed by the United States Department of Justice on June 9, 2006, and defendant’s Reply thereto. The matter was heard on August 28, 2006. Pursuant to the evidence presented and arguments offered by the parties, the Court issues the following order DENYING plaintiff’s Motion for Summary Judgment and GRANTING defendant’s Motion for Summary Judgment. App. 28 Nature of the Case and Issue Presented This action is brought pursuant to Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189, and arises out of the inability of a wheelchair-bound NASCAR race spectator to see over the heads and bodies of ambulatory spectators who stand during the exciting parts of NASCAR races. In addition to the ADA claim, plaintiff brings similar state-law claims. The undisputed facts presented by this action require the Court to determine what deference, if any, should be given to the Department of Justice’s (“the DOJ”) interpretation of a provision of the Americans with Disabilities Act Accessibility Guide- lines (““ADAAG”). See 28 C.F.R., Pt. 26, Appdx. A, § 4.33.3 (hereinafter “ADAAG” § 4.33.3). Specifically, this case addresses the deference to be given the DOJ’s interpretation of ADAAG § 4.33.3, which reads: “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 generai public.” The DOJ has interpreted § 4.33.3 to mean that, “in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheel- chair locations must provide lines of sight over spec- tators who stand.” 1994 Supplement, DOJ Technical Assistance Manual, § III-7.5180 (hereinafter “1994 TAM Supplement”). App. 29 In the end, the Court determines that, as a matter of law, it may not give deference to the DOJ’s current position on § 4.33.3, as expressed in the 1994 TAM Supplement. Moreover, because the DOJ’s 1994 interpretation imposing the “lines of sight” require- ment was adopted without the requisite notice-and- comment period mandated by the Administrative Procedure Act (“APA”), the interpretation, and thus the requirement, must be rejected in favor of the DOJ’s original interpretation that failed to impose the “lines of sight” requirement. II. Objection to Evidence Defendant objects to plaintiff’s expert’s declara- tion in which the expert offers an opinion that defen- dant argues amounts to a conclusion of law. See Bishop Decl. 7 8 (“It is my expert opinion that the upper[-Jlevel wheelchair seating area does not pro- vide wheelchair patrons a line of sight over standing spectators.”). Defendant’s objection is overruled. Although Bishop uses the same phrase as the regula- tion, “line of sight,” it is clear in context that Bishop is not making a conclusion of law; rather, Bishop merely offers the opinion that, based on his examina- tion of the site, plaintiff, when using his wheelchair, would be unable to see the track over standing spec- tators. Therefore, the opinion addresses a matter of fact. By contrast, defendant’s expert offers a conclu- sion of law. See Gibbens Decl. 97 (“In my on-site App. 30 inspection of THE CALIFORNIA SPEEDWAY, as well as review of diagrams of the [S]peedway, I agree that the subject seating does in fact comply with the applicable provisions of the [Americans with Disabili- ties Act Accessibility Guidelines] and the [California Building Code] and that plaintiff’s allegations are without merit.... [P]laintiff’s contention that he is entitled to an unobstructed line of sight over the heads of standing spectators is without merit.”). The Court will draw its own conclusions of law. Ill. Uncontroverted Facts Defendant, the California Speedway Corporation (“the Speedway”), operates a racing track located in Fontana, California. The Speedway is a track and stadium facility that is open to and sells tickets to the public for events such as NASCAR racing. The Speedway was built after January, 1993. Plaintiff Robert Miller is disabled and uses a wheelchair for mobility. Specifically, plaintiff became a quadriplegic after an injury severed his spinal cord at the C5/C6 vertebra level. Each year since the Speedway opened in 1997, plaintiff has attended three to six of its NASCAR races. The Speedway has wheelchair spaces located on the upper level of the Speedway. When plaintiff occupies these spaces in his wheelchair, he is unable to see over the ambulatory spectators in the rows in App. 31 front of him when those spectators stand.’ Not sur- prisingly, the ambulatory spectators tend to stand up to see the more exciting parts of the race, making it impossible for plaintiff to see “the part of the race [he| wants to see the most.” Miller Depo. at 27. IV. Summary Judgment Standard Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. Rule Civ. P. 56(c). Plaintiff offers his declaration and photographs taken by him as evidence on this point. Plaintiff also offers the declara- tion of his expert, who is of the opinion that, based on his examination of the site and an analysis that employed the use of industry standard “average anthropomorphic dimensions,” plaintiff is unable to see the track over standing spectators. In response, defendant offers evidence, in the form of an expert declaration and photographs taken by its expert, purporting to controvert this fact. The Gibbens declaration establishes that the wheelchair spaces plaintiff occupied are located on an elevated platform behind seating for ambulatory spectators, as illustrated by the accompanying pictures. However, the pictures are of an empty stadium, without any standing spectators, and it is unclear whether the photographs were taken from the angle which a wheelchair-bound spectator would view the stadium and track. This evidence fails to dispute plaintiff's testimony and photographic evidence that, from his eye-level while seated in his wheelchair, he is unable to see over spectators standing in front of him App. 32 The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Whether a fact is material is determined by looking to the governing substantive law; if the fact may affect the outcome, it is material. Id. at 248. If the moving party meets its initial burden, the “adverse party may not rest upon the mere allega- tions or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Mere disagreement or the bald assertion that a genuine issue of material fact exists does not preclude the use of summary judgment. Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989). V. Plaintiff’s ADA Claim A. ADA Title Ill Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advan- tages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). The ADA defini- tion of “public accommodation” includes race tracks such as the Speedway. See 42 U.S.C. § 12181(7)(c) (“‘Public accommodation’ [includes] a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment... .”). Title III requires App. 33 that facilities constructed for first occupancy on or after January 26, 1993, be “readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structur- ally impracticable.” 42 U.S.C. § 12183; 28 C.F .R. § 36.401(a)(1). To implement these provisions, Congress directed the Department of Justice to “issue rezulations that include standards applicable to facilities” cov- ered by Title III. 42 U.S.C. 12186(b). These standards must “be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board” (“Access Board”). 42 U.S.C. § 12186(c). Pursuant to this statutory authority, the DOJ has issued voluminous regulations implementing Title III. See generally 28 C.F-R., part 36. Significant to this case is ADAAG § 4.33.3, which requires that wheelchair-bound spectators be afforded “lines of sight comparable to those for members of the general public.” Jd. Specifically, at issue in this case is whether the Court must give deference to the DOJ’s position that § 4.33.3 requires that wheelchair spaces must be situated in such a manner as to give ‘ The Access Board is a federal agency that was created by the Rehabilitation Act of 1973. See 29 U.S.C. § 792(a). The ADA required that the Access Board, within nine months of July 26, 1990, to issue “minimum guidelines” to supplement the Board’s “existing Minimum Guidelines and Requirements for Accessible Design.” 42 U.S.C. § 12204(a). App. 34 wheelchair-bound spectators a clear line of sight over standing spectators. See Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (noting that an agency’s interpretation of its own regulation must be given deference so long as it is not “plainly erroneous or inconsistent” with the regulation). B. The DOJ’s Current Interpretation is Reasonable Courts are required to “give substantial defer- ence to an agency’s interpretation of its own regula- tions.” Thomas Jefferson University, 512 U.S. at 512. In other words, the court need not “decide which among several competing interpretations best serves the regulatory purpose[; rJather, the agency’s inter- pretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regula- tion.” /d. (internal quotation marks and citations omitted). Here, the Court is satisfied that the DOJ’s cur- rent position on ADAAG § 4.33.3 is reasonable. Title Ill requires that public accommodations be “readily accessible to and usable by individuals with disabili- ties.” 42 U.S.C. § 12183(a). Title III also requires that persons with disabilities be afforded “the full and equal enjoyment of ... public accommodation{[s].” 42 U.S.C. § 12182(a). ADAAG § 4.33.3 requires that disabled individuals who use wheelchairs for mobility be afforded lines of sight that are comparable to non- disabled individuals. The DOJ’s interpretation — that App. 35 wheelchair-bound spectators be afforded lines of sight over standing spectators at events where spectators are expected to stand — is wholly consistent with these provisions. Moreover, although courts are divided on whether the DOJ’s position must be given deference, see infra, no court to consider the issue has concluded that the DOJ’s position is unreasonable. See Para- lyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 584-85 (D.C. Cir. 1997) (finding that ADAAG § 4.33.3 is “susceptible to [the DOJ’s] present inter- pretation” and that it was therefore reasonable); cert. denied, 523 U.S. 1003 (1998); United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262, 1268-69 (D. Minn. 1997) (same); Caruso v. Blockbuster-Sony Music Entertainment Centre at the Waterfront, 193 F.3d 730 (3d Cir. 1999) (noting that the DOJ’s position is “plausible and ... consistent with the ADA’s purpose of enabling people with disabilities to share equally in the benefits provided by a public accommodation”); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Ore. 1997) (noting that “[tJhe ADA provides ample legal authority to support” a requirement that public accommodations provide lines of sight over standing spectators during events at which spectators are expected (or even encouraged) to stand). That the DOJ interpretation is reasonable, however, is not the end of the Court’s inquiry. As the parties’ arguments and relevant case law acknowl- edge, the analysis of whether the Court must defer to App. 36 the DOJ’s position requires the Court to consider whether the interpretation represents “a fundamen- tal modification of its previous interpretation.” Para- lyzed Veterans of America, 117 F.3d at 586; see also Thomas Jefferson University, 512 U.S. at 512 (“we must defer to the Secretary’s interpretation unless an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secre- tary’s intent at the time of the regulation’s promulga- tion.”). This determination begins with an examination of the unique procedural history behind § 4.33.3. C. Procedural History of the Adoption of § 4.33.3 Section 4.33.3 ts found in Appendix A to Title 28, part 36 of the Code of Federal Regulation. It reads: Placement of Wheelchair Locations. Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabili- ties a choice of admission prices and lines of sight comparable to those for members of the general public. They shall adjoin an accessi- ble route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one lo- cation. App. 37 Id. Without giving any notice and without eliciting any comments, the DOJ has since 1994 interpreted § 4.33.3 to require lines of sight over the heads of standing spectato In addition to requiring companion seat- ing and dispersion of wheelchair locations, [Standard 4.33.3] requires that wheelchair locations provide people with disabilities lines of sight comparable to those for mem- bers 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 DOJ TAM § ITI-7.5180. Standard 4.33.3 was first proposed by the Access Board on January 22, 1991. At that time, it stated: “Placement of Wheelchair Locations. 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.” Proposed Rules, Architectural and Transportation Barriers Compliance Board, 56 Fed. Reg. 2296-01, 2380 (Jan. 22, 1991). Accompanying proposed § 4.33.3 App. 38 was a public notice regarding the proposed rule, inviting comments regarding the issue of lines of sight over standing spectators: Section 4.33.3 provides that seating loca- tions for people who use wheelchairs shall be dispersed throughout the seating area and shall be located to provide lines of sight com- parable to those for all viewing areas. This requirement appears to be adequate for theaters and concert halls, but may not suf- fice in sports arenas or race tracks where the audience frequently stands throughout a large portion of the game or event. In altera- tions 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 exist- ing seats at the top of a tier providing a great differential in height. These solutions can work in newly constructed sports arenas 4s well, if sight lines relative to standing pa- trons are considered at the time of the 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. at 2314. A month later, on February 22, 1991, the DOJ published a notice in which it proposed to adopt the Access Board’s Proposed Guidelines “with any amendments made by the [Access Board] during the rulemaking process.” Proposed Rules, Department of App. 39 Justice, 56 Fed. Reg. 7452-01, 7478-79 (Feb. 22, 1991). The DOJ notice stated that “any comments” on the Access Board’s Proposed Guidelines should be sent directly to the Board. Jd. at 7479. Five months later, on July 26, 1991, the Access Board published its proposed final guidelines, includ- ing comments regarding proposed § 4.33.3 with respect to the issue of lines of sight over standing spectators: Comment. The [Board] asked questions regarding ... 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. Re- sponse.... The issue of lines of sight over standing spectators will be addressed in guidelines for recreational facilities. Rules and Regulations, Architectural and Transporta- tion Barriers Compliance Board, 56 Fed. Reg. 35408- 01, 35440 (July 26, 1991). On the same day that the Access Board issued its proposed guidelines, including the above comment, the DOJ promulgated § 4.33.3, which is worded identically to the Access Board’s final proposed text. The DOJ did not explicitly adopt the Board’s com- mentary, but instead issued this general statement: The Department put the public on no tice, through the proposed rule, of its inten- tion to adopt the proposed [guidelines], with App. 40 any changes made by the Board, as the ac- cessibility standards. As a member of the Board and of its ADA Task Force, the De- partment participated actively in the public hearings held on the proposed guidelines and in preparation of both the proposed and final versions of [the guidelines.|] ... [All] com- ments on the Department’s proposed rule .. have been addressed adequately in the final [guidelines]. Largely in response to com- ments, the Board made numerous changes from its proposal. Rules and Regulations, Department of Justice, Fed. Reg. 35544-01, 35585 (July 26, 1991). D. Defendant’s Argument that the DOJJ’s Current Position is Inconsistent with its Previous Position Defendant argues that, based on this link be- tween the DOJ and the Board in the rulemaking process, along with the DOJ’s adoption of the text of § 4.33.3 (and its general statement approving of the Board’s changes to the proposed guidelines), the Board’s commentary regarding the intent to address the issue of standing spectators at a future date must be imputed to the DOJ. Therefore, under defendant’s reasoning, the DOJ’s position at the time of the promulgation of § 4.33.3 was that it did not address the issue of standing spectators — a position it was not free to change in 1994 without first going through the notice-and-comment procedure required by APA. See 5 U.S.C. § 553; Paralyzed Veterans, 117 F.3d at App. 41 579 (“To allow an agency to make a fundamental change in its interpretation of a substantive regula- tion without notice and comment obviously would undermine [the] APA requirements.”); Shalala ov. Guernsey Memorial Hosp., 514 U.S. 87, 88 (1995) (“APA rulemaking would still be required if [an agency] adopted a new position inconsistent with any of the [agency’s]| existing regulations.”). The four courts that have considered this issue are split down the middle. See Paralyzed Veterans of America v. D.C. Arena L.P, 117 F.3d 579 (D.C. Cir. 1997) (Board commentary not binding on DOJ; DOJ’s position on § 4.33.3 is entitled to deference), cert. denied, 523 U.S. 1003 (1998); United States v. Ellerbe Becket, Inc., 976 F.Supp. 1262 (D. Minn. 1997) (same); Caruso v. Blockbuster-Sony Music Entertain- ment Centre at the Waterfront, 193 F.3d 730 (3d Cir. 1999) (DOJ “implicitly adopted” the Board’s commen- tary; DOJ’s position on § 4.33.3 is not entitled to deference); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Ore. 1997) (attrib- uting Board’s commentary to the DOJ; DOJ’s position is not entitled to deference). A brief review of these opinions is helpful to the Court’s analysis. In Paralyzed Veterans, a group of paralyzed veterans brought suit against an athletic arena to require the arena to provide lines of sight over stand- ing spectators. Jd. at 580. The court began its analysis with an acknowledgment that agency interpretations are generally given deference, so long as they are reasonable. /d. at 584. Because the court concluded App. 42 that § 4.33.3 could plausibly be interpreted in the manner suggested by the DOJ, it was reasonable. Id. at 584-85. This conclusion, however, did not end the inquiry, because the court was required to consider whether the DOJ’s current position was “a fundamen- tal modification of its previous interpretation” that would require formal modification through the notice- and-comment process. /d. at 586; 5 U.S.C. § 553(b)-(c) (requiring notice be given and comment be permitted before an agency engaged in “rule making”); 5 U.S.C. § 551(5) (defining “rule making” to include “repeal” and “amendment”). The court determined that the Board’s commen- tary should not be attributed to the DOJ; although it acknowledged that it was plausible that the DOJ, at the time of § 4.33.3’s adoption, held the same position on standing spectators as did the Board, the court also acknowledged that this was not the only reason- able inference to be drawn. Paralyzed Veterans, 117 F.3d at 587. In the end, although conceding “the issue [is] not easy,” the court reasoned that the Board’s commentary should not be attributed to the DOJ because (1) the DOJ did not explicitly adopt the commentary; (2) it did not comment on the Board’s concerns regarding standing spectators; (3) it did not imply the regulation did not address the issue of standing spectators, and (4) because the DOJ was required only to adopt regulations that were consis- tent with the minimum requirements issued by the Board, nothing prevented the DOJ from imposing greater burdens on entities covered by the App. 43 regulations. /d. at 587. Because the court concluded that the DOJ “never authoritatively adopted a posi- tion contrary to” that set forth in the 1994 TAM, it deferred to the DOJ’s position and held that the athletic arena was required to provide wheelchair- bound spectators with lines of sight over standing spectat ors The court in United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262 (D. Minn. 1997), adopted wholesale the reasoning and holding of the D.C. Circuit in Paralyzed Veterans. In contrast to Paralyzed Veterans and Ellerbe Becket stand Caruso v. Blockbuster-Sony Music Entertainment Centre at the Waterfront, 193 F.3d 730 (3d Cir. 1999) and /ndependent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Ore. 1997). In Caruso, a wheelchair-bound patron sued a music and entertainment facility because their wheelchair spaces had no lines of sight over standing spectators. 193 F.3d at 731. The Third Circuit held that the DOJ “implicitly adopted” the Board’s com- mentary regarding § 4.33.3 and therefore its current position represents a change from its intent at the time of § 4.33.3’s promulgation, rendering its current position on § 4.33.3 unworthy of deference. /d. at 736 37 (citing Thomas Jefferson University, 512 U.S. at B 512 (“[WJe must defer to the Secretary’s interpreta tion unless an alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary's intent at the time of the regulation’s App. 44 promulgation.”)). The court attributed the Board’s commentary to the DOJ for a number of reasons: (1) The DOJ referred all comments on the proposed rules to the Board; (2) the DOJ relied on the Board to make adequate changes based on those comments; (3) the Board specifically changed the language of § 4.33.3 in response to comments and explained that change in its commentary; (4) the DOJ was a “member of the Board” and “participated actively ... in preparation of both the proposed and final versions of the [guide- lines)”; and (5) the DOJ’s commentary upon the issuance of the Board’s final guidelines that the Board adequately addressed all comments. Caruso, 193 F.3d at 736. In holding that it could not defer to the DOJ’s current position on § 4.33.3, the Third Circuit agreed with the D.C. Circuit's observation in Paralyzed Veterans that “the issue is not easy,” but nevertheless “respectfully disagree[dj” with the D.C. Circuit’s contrary conclusion. The Court in Independent Living reached the same conclusion as did the court in Caruso, employ- ing similar reasoning. In independent Living, a disabled person brought an action against the owner and operator of a sports arena. 982 F. Supp. at 706. At issue was whether the court should defer to the DOJ’s current position on § 4.33.3. The court acknowledged that the DO.J’s current position was a reasonable one. Id. at 734. However, it found that the DOJ’s current position represented an impermissible change from its previous position, as represented by the Board’s commentary regarding § 4.33.3. The court attributed App. 45 the Board’s commentary to the DOJ for a number of reasons. First, the DOJ did not make its “comments” a: part of the notice-and-comment procedure; rather, it relied on the Board to fulfill this role, and it found these comments “adequate” in the general statement it made at the time of the promulgation of § 4.33.3 Id. at 740-41 (“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 ee Second, the DOJ referred any comments regard ing the proposed regulations to the Board. If the Board’s commentary was not binding on the DOJ, then the notice-and-comment procedure would be “an empty gesture.” Id. at 741; see Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (“Ordinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid.”) Third, the DOJ adopted the Access Board’s commentary by virtue of its general statement that the comments from the public were “addressed ade quately in the final ADAAG” and by the “numerous changes” that the Access Board had made in response to those comments. /ndependent Living, 982 F. Supp at 741 linally, the court was persuaded by the unique, close relationship between the Board, which was required to establish the minimum standards for the ADA regulations, and the DO.J, which was required to App. 46 promulgate ADA regulations that were consistent with those minimum standards. /d. The court found this relationship all the more persuasive in light of the DOJ’s admission that the two agencies worked closely together in drafting those guidelines. There- fore, the Court held that the DOJ’s position was not entitled to deference. All four of these cases agree on at least one issue: In order for the DOJ’s position to be entitled to defer ence, the DOJ must not have previously held the position espoused by the Board in its commentary. In other words, these courts agree that if the Board’s commentary is imputed upon or attributed to the DOJ, then the DOJ’s current position is not entitled to deference. Despite arguments to the contrary by the DOJ, the Court concludes that this inquiry is dispositive as well Che DOJ argues that both the Board’s comment ary at the time of the notice of the proposed guidelines and at the time of the final guidelines leave open the possibility that the Board did not interpret § 4.33.3 as not addressing the issue of lines of sight over standing spectators. Amicus Brief at 16-19. At the time of the proposed guidelines, the Board’s reference to “full lines of sight” could be viewed as its consideration of what technical or qualitative specifications should govern the requirement of lin of sight over standing spectators, not whether lines of sight ove: standing spectators must be provided. /d. Likewise, the Board's commentary at the time of the final guidelines could be viewed as its contemplation of the development in the future of detailed guidelines that contemplate further technical qualitativ: refinements. /d. The Court is not persuaded by t irvument Che Board, at the time of the final ntinued on foll ruide lis ( ] onagc niOw if Lrcip et App. 47 The Court agrees wholeheartedly with both the Third and D.C. Circuits that this is a difficult issue. If the DOJ explicitly adopted the Board’s commentary, it would be easy. However, the DOJ did not explicitly adopt the Board commentary, and the Court is in stead left with the tortured history of the promulga- tion of § 4.33.3 set forth above. In the end, the Court believes that the Third Circuit’s approach in Caruso represents the most principled analysis of the present issue. For that reason, the Court adopts the reason ing and conclusion set forth therein. In this Court’s view, the most important factor in reaching the conclusion that the Board’s commentary must be imputed to the DOJ is the DOJ’s comment regarding the Board’s actions during the notice-and- comment period. The DOJ emphasized that the public was put on notice of the DOJ’s intent to adopt the guidelines proposed by the Board, with any changes made by the Board. See 56 Fed. Reg. 35585 The DOJ noted its own “active participation” in the yublic hearings on the proposed guidelines and “in f > (noting that the median (50th percentile) height for a five-year-old child in the United States is 42 inches). Although the Court does not find this particular argument by counsel to be persuasive, the Court is constrained by the DOJ’s original interpretation of § 4.33.33; that is, the original position of the Board that § 4.33.3 simply does not address the question of lines of sight over standing spectators. In light of this position, the Court’s ruling must be in favor of the defendant. E. Ruling on ADA Claim Having concluded that § 4.33.3 must be inter- preted as not addressing the issue of lines of sight over standing spectators, the Court DENIES plain- tiff’s Motion for Summary Judgment on the ADA claim and GRANTS defendant’s Motion for Summary Judgment as to the ADA claim. App. 51 VI. State Law Claims As plaintiff’s counsel has conceded in a previous proceeding, plaintiff's state-law claims are dependent upon a finding of an ADA violation. See July 29, 2005, Transcript at 19 (attached to Motion as Ex. D) (“The state[-Jlaw claims are predicated on the violation of the federal claims. So if we lose the federal claim, we lose the state[-Jlaw claim.”). Having found no such violation as a matter of law, the Court DENIES plaintiff’s Motion for Summary Judgment as to the state-law claims and GRANTS defendant’s Motion for Summary Judgment as to the state-law claims. VII. Conclusion As set forth above, the Court DENIES plaintiff’s Motion for Summary and GRANTS defendant’s Motion for Summary Judgment. Summary Judgment is granted in favor of defendant as to all claims. The Clerk shall close the case IT IS SO ORDERED. DATE: 9-8-06. S Larson STEPHEN G. LARSON UNITED STATES DISTRICT JUDGE App. 52 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT MILLER, ) Plaintiff ™ ) Case No. EDCV 01-00434 SGL ) THE CALIFORNIA ) JUDGMENT SPEEDWAY ) (Filed Sep. 18, 2006) CORPORATION, Defendant. ) In light of the Court’s Order of September 8, 2006, granting summary judgment on all claims in favor of defendant, the Court enters JUDGMENT in favor of defendant as to all claims. IT IS SO ORDERED. DATE: 9-18-06 /s/ S Larson STEPHEN G. LARSON UNITED STATES DISTRICT JUDGE App. 53 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT MILLER, See No. 06-56468 Plaintiff-Appellant, D.C. No. CV-01-00434-SGL V. Central District of THE CALIFORNIA California, Riverside SPEEDWAY ORDER CORPORATION, (Filed Sep. 16, 2008) Defendant-Appellee. Before: CANBY and BYBEE, Circuit Judges, and HUNT,* District Judge. Judge Bybee voted to deny the petition for re- hearing en banc, and Judges Canby and Hunt rec- ommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Appellee’s petition for rehearing en banc, filed August 22, 2008, is DENIED. “ The Honorable Roger L. Hunt, United States District Court, Distnct of Nevada, sitting by designation App. 54 5 U.S.C. § 553. Rule Making *& K 4 (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include — (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the pro- posed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply — (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unneces- sary, or contrary to the public interest. * * App. 55 5 U.S.C.§ 551. Definitions (5) “rule making” means agency process formulating, amending, or repealing a rule; x os os for ew App. 56 42 U.S.C. § 12181. Definitions As used in this title [42 USCS $$ 12181 et seq.]: (1) Commerce. The term “commerce” means travel, trade, traffic, commerce, transportation, or communication — (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country (2) Commercial facilities. The term “commercial facilities” means facilities — (A) that are intended for nonresidential use; and (B) whose operations will affect commerce. Such term shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in section 242 [42 USCS $ 12162] or cov- ered under this title [42 USCS $$ 12181 et seq.], railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. 3601 et seq.). (3) Demand responsive system. The term “de- mand responsive system” means any system of pro- viding transportation of individuals by a vehicle, other than a system which is a fixed route system. App. 57 (4) Fixed route system. The term “fixed route system” means a system of »roviding transportation of individuals (other than wy aircraft) on which a vehicle is operated along a prescribed route according to a fixed schedule. (5) Over-the-road bus. The term “over-the-road bus” means a bus characterized by an elevated pas- senger deck located over a baggage compartment. (6) Private entity. The term “private entity” means any entity other than a public entity (as defined in section 201(1) [42 USCS $§ 12131(D)|. (7) Public accommodation. The following private entities are considered public accommodations for purposes of this title [42 USCS $$ 12181 et seq.], if the operations of such entities affect commerce -- (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establish- ment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or enter- Lainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; App. 58 (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment: and (L) agymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. (8) Rail and railroad. The terms “rail” and “railroad” have the meaning given the term “railroad” in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)) [49 USCS $ 20102(1)}. App. 59 (9) Readily achievable. The term “readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include — (A) the nature and cost of the action needed under this Act; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, struc- ture, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. (10) Specified public transportation. The term “specified public transportation” means transporta- tion by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis App. 60 (11) Vehicle. The term “vehicle” does not in- clude a rail passenger car, railroad locomotive, rail- road freight car, railroad caboose, or a railroad car described in section 242 [42 USCS §$ 12162] or cov- ered under this title [42 USCS $$ 121817 et seq.]. 42 U.S.C. § 12183. New construction and alterations in public accommodations and commercial facilities (a) Application of term. Except as provided in sub- section (b), as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) [42 USCS §$ 12182(a)] includes — (1) a failure to design and construct facilities for first occupancy later than 30 months after the date of enactment of this Act [enacted July 26, 1990] 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 title [42 USCS $$ 12181 et seq.]; and 42 U.S.C. § 12186. Regulations * , (b) Other provisions. Not later than 1 year after the date of the enactment of this Act [enacted July 26, App. 61 1990], the Attorney General shall issue regulations in an accessible format to carry out the provisions of this title [42 USCS $$ 12181 et seq.] not referred to in subsection (a) that include standards applicable to facilities and vehicles covered under section 302 [42 USCS $ 12182]. (c) Consistency with ATBCB guidelines. Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guide- lines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 504 of this Act [42 USCS § 12204). 42 U.S.C. § 12206. Technical assistance [Caution: See prospective amendment note below.] * (c) Implementation. mm (3) Technical assistance manuals. Each Federal agency that has responsibility under paragraph (2) for implementing this Act shall, as part of its imple- mentation responsibilities, ensure the availability and provision of appropriate technical assistance manuals to individuals or entities with rights or duties under this Act no later than six months after App. 62 applicable final regulations are published under titles I, I, IT, and TV. App. 63 28 C.F.R. Ch. 1, App. A * * * 4.33.3* Placement of Wheelchair Locations. 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. They shall adjoin an accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users. 28 C.F.R. § 36.406 Standards for new construction and alterations. (a) New construction and alterations subject to this part shall comply with the standards for accessi- ble design published as appendix A to this part (ADAAG). (b) The chart in the appendix to this section provides guidance to the user in reading appendix A to this part (ADAAG) together with subparts A App. 64 through D of this part, when determining require- ments for a particular facility. * App. 65 56 Fed. Reg. 35,440 + * * Comment. The NPRM asked questions regarding row spacing and lines of sight over standing specta- tors in sports arenas and other similar assembly areas. Many of the persons who responded to the question stated that they have difficulty accessing mid-row seats in an assembly area. Many comment- ers also recommended that lines of sight should be provided over standing spectators. Response. Building and life safety codes set mini- mum distances between rows of fixed seats with con- sideration of the number of seats in a row, the exit aisle width and arrangement, and the location of exit doors. Because row spacing is related to these other factors, the Board does not believe that it is appropriate for the guidelines to set requirements in this area. However, information has been included in the appendix at A4.33.3 on “continental” seating which allows a greater number of seats per row with a commensurate in- crease in row spacing and exit doors. This alternative increases ease of access to mid-row seats for people who walk with difficulty and facilitates emergency egress for all people. Builders and designers are en- couraged to consider “continental” seating along with other factors when planning seating in assembly areas. The issue of lines of sight over standing spectators will be addressed in guidelines for recreational facilities. App. 66 56 Fed. Reg. 35,514 * * * 4.33.3* Placement of Wheelchair Locations. 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. They shall adjoin an accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users. 56 Fed. Reg. 35,586 *k * All these comments were considered in the same manner as other comments on the Department’s proposed rule and, in the Department’s view, have been addressed adequately in the final ADAAG. * *K App. 67 57 Fed. Reg. 60,612 ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Part 1191 [Docket No. 92-2] RIN 3014 AA12 Americans With Disabilities Act (ADA) Acces- sibility Guidelines for Buildings and Facili- ties; State and Local Government Facilities AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Notice of proposed rulemaking. SUMMARY: The Architectural and Transportation Barriers Compliance Board is issuing proposed guide- lines to provide additional guidance to the Depart- ment of Justice in establishing accessibility standards for new construction and alterations of State and local government facilities covered by title II of the Americans with Disabilities Act (ADA) of 1990. The guidelines will ensure that newly constructed and altered State and local government facilities are readily accessible to and usable by individuals with disabilities in terms of architecture and design, and communication. The standards established by the Department of Justice must be consistent with and may incorporate the guidelines. DATES: Comments should be received by March 22, 1993. Comments received after this date will be App. 68 considered to the extent practicable. Where possible, the comments should reference specific sections in the proposed guidelines. The Board will hold public hearings on the proposed guidelines on the dates and times listed under SUPPLEMENTARY INFOR- MATION below. 57 Fed. Reg. 60,618 * Assembly Areas During the initial rulemaking, the Board re- quested information on lines of sight at seating locations for persons who use wheelchairs. See 56 FR 2296 (January 22, 1991). The Board received a num- ber 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 be either unenforceable, add significant cost 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. App. 69 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). Addi- tionally, 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. Question 17: The Board is seeking comments on the design issues associated with providing inte- grated and dispersed accessible seating locations with a clear line of sight over standing spectators in are- nas, stadiums or other sports facilities. Clearly, not all seats in sports facilities afford clear lines of sight over standing spectators. Tall persons, guard railings or other fixed elements in the facility may block one’s view of the playing field. However, since persons with disabilities have fewer choices of seating locations, should all the accessible seating locations be required to have lines of sight over standing spectators? Would such a requirement compromise the requirement for dispersed wheelchair seating by providing seating in fewer locations? If maximum dispersal of accessible App. 70 seating locations is provided, what percentage of such locations can be provided with a clear line of sight over standing spectators? The Board encourages commenters to provide cost information and examples (including drawings, pictures or slides) of sports facilities where the accessible seating locations are dispersed, integrated and provide clear lines of sight over standing spectators. Additionally, the Board is seeking comments on how the dispersal requirement is achieved in arenas or stadiums where fixed seating is on different levels within a tier having steps. How should dispersal be defined in such facilities? If the same definition of dispersal cannot be applied to all types of facilities, is there a way to categorize differ- ent facilities and apply a specific dispersal require- ment to each category? What are the design issues associated with providing accessible seating locations within one tier on different levels? * So App. 71 64 Fed. Reg. 62,248 ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Part 1190 and 1191 [Docket No. 99-1] RIN 3014-AA20 Americans With Disabilities Act (ADA) Accessibil- ity Guidelines for Buildings and Facilities; Archi- tectural Barriers Act (ABA) Accessibility Guide- lines AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Notice of Proposed Rulemaking. SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) is propos- ing to revise and update its accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act of 1990 (ADA) and the Architec- tural Barriers Act of 1968 (ABA). These guidelines cover new construction and alterations and serve as the basis for enforceable standards issued by other Federal agencies. As a result of this revision and update, the guidelines for the ADA ana ABA are consolidated in one Code of Federal Regulations part. The guidelines for the ABA also cover buildings and facilities leased by Federal agencies. The Department of Justice and the Department of Transportation are responsible for issuing standards based on the Access App. 72 Board’s guidelines under the ADA. ABA standards are issued by the Department of Defense, General Services Administration, the Department of Housing and Urban Development, and the U.S. Postal Service. 64 Fed. Reg. 62,501-62,502 802.9 Lines of Sight. Spectators seated in wheel- chairs shall be provided lines of sight comparable to those provided to other spectators. 802.9.1 Comparable Lines of Sight for Seated Spectators. Where spectators are expected to remain seated during events, spectators seated in wheelchairs shall be provided with lines of sight to the perform- ance area or playing field comparable to that provided to spectators in the seating area in closest proximity to the location of the wheel- chair spaces, but not in the same row. App. 73 Figure 802.9.1 App. 74 802.9.2 Comparable Lines of Sight Over Standing Spectators. Where people will be expected to stand at their seats during events, wheelchair spaces shall be located so that they will provide people seated in wheelchairs with lines of sight of the per- formance area or playing surface over stand- ing spectators comparable to that provided to standing spectators in the seating area in closest proximity to the wheelchair spaces, but not in the same row. App. 75 Figure 802.9.2 App. 76 69 Fed. Reg. 44,392-44,393 Figure 802.2.1.1 Lines of Sight Over the Heads of Seated Spectators App. 77 802.2.1.2 Lines of Sight Between Heads. Where spectators are provided lines of sight over the shoul- ders and between the heads of spectators seated in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and between the heads of seated spectators in the first row in front of wheelchair spaces. Figure 802.2.1.2 Lines of Sight Between the Heads of Seated Spectators App. 78 802.2.2 Lines of Sight Over Standing Spectators. Where spectators are expected to stand during events, spectators in wheelchair spaces shall be afforded lines of sight complying with 802.2.2. 802.2.2.1 Lines of Sight Over Heads. Where standing spectators are provided lines of sight over the heads of spectators standing in the first row in front of their seats, specta- tors seated in wheelchair spaces shall be af- forded lines of sight over the heads of standing spectators in the first row in front of wheelchair spaces. Figure 802.2.2.1 Lines of Sight Over the Heads of Standing Spectators App. 79 802.2.2.2 Lines of Sight Between Heads. Where standing spectators are provided lines of sight over the shoulders and between the heads of spectators standing in the first row in front of their seats, spec- tators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and between the heads of standing spectators in the first row in front of wheelchair spaces. Figure 802.2.2.2 Lines of Sight Between the Heads of Standing Spectators App. 80 73 Fed. Reg. 34,508-34,509 DEPARTMENT OF JUSTICE 28 CFR Part 36 [CRT Docket No. 106; AG Order No. 2968-2008] RIN 1190-AA44 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities AGENCY: Department of Justice, Civil Rights Division. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Justice (Depart- ment) is issuing this notice of proposed rulemaking (NPRM) in order to: Adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are “consistent with the minimum guidelines and requirements issued by the Architec- tural and Transportation Barriers Compliance Board” (Access Board); and perform periodic reviews of any rule judged to have a significant economic impact on a substantial number of small entities, and a regula- tory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). App. 81 In this NPRM, the Department proposes to adopt Parts I and III of the Americans With Disabilities Act and Architectural Barriers Act Accessibility Guide- lines (2004 ADAAG), which were published by the Architectural and Transportation Barriers and Com- pliance Board (Access Board) on July 23, 2004. Prior to its adoption by the Department, the 2004 ADAAG is effective only as guidance to the Department; it has no legal effect on the public until the Department issues a final rule adopting the revised ADA Stan- dards (proposed standards). Concurrently with the publication of this NPRM, the Department is publishing an NPRM to amend its title I] regulation, which covers state and local gov- ernment entities, in order to adopt the 2004 ADAAG as its proposed standards for title II entities, to make amendments to the title IT regulation for consistency with title III, and to make amendments that reflect the collective experience of 16 years of enforcement of the ADA. App. 82 Americans with Disabilities Act Title III Technical Assistance Manual 1994 Supplement IfI-7.5180 Assembly areas. [Insert the following text before the sentence begin- ning, “Finally, wheelchair seating... .” p. 64.] 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 gen- eral public. Thus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheel- chair locations must provide lines of sight over spectators who stand. This can be ac- complished 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. * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0906%3A1. Public record. Not legal advice.