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December 20, 1996


The opinion of the court was delivered by: HOGAN

 In his treatise on the young American Republic, Democracy in America, Alexis de Tocqueville observed that "there is hardly a political question in the United States which does not sooner or later turn into a judicial one." *fn1" The French writer could easily have had in mind the present case, in which plaintiffs have sued to enforce the requirements of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. *fn2" Congress has assigned to the Attorney General the duty and power to interpret that statute and to set standards for enforcement and compliance. 42 U.S.C. § 12186(b). Unfortunately, while the Department of Justice has issued broad Standards for Accessible Design, it has not seen fit to step up to its statutorily mandated role by providing concrete guidance for architects and builders. Plaintiffs have asked the Court to enforce demanding, and controversial, design requirements that the Department of Justice has never championed in any court or in any rulemaking procedure, and which the Department has declined to support in the present case, despite several invitations from the Court to do so. Therefore, the Court is forced to step in and decide issues which would have been far better left to the politicians in the Executive and Legislative branches.

 This case concerns the design and construction of a new arena, slated to be called the "MCI Center," which is being built in downtown Washington, D.C., by defendants. The arena will be the new home of two professional sports franchises, the Washington Capitals hockey team and the soon-to-be-renamed *fn3" Washington Bullets basketball team. The arena will also host concerts, college sporting contests, and other entertainment events. Plaintiffs filed this suit on June 14, 1996, claiming that the seating bowl, as designed, fails to provide the number of "accessible" wheelchair locations required by the ADA.

 The present litigation has raised a number of difficult issues, particularly since the Justice Department has declined to lend its expertise. The case is all the more difficult because the Court finds that defendants have acted in good faith. The evidence presented shows defendants' desire to construct an arena which meets the needs of wheelchair patrons and which provides the best possible sightlines to all patrons, ambulatory and nonambulatory. The management of the USAIR Arena, which currently hosts most of the events that will switch to the MCI Center next year, has consistently made every effort to accommodate these patrons, and the management of the new arena has voiced its commitment to continuing these efforts. Defendants have designed an arena which offers more wheelchair spaces with enhanced sightlines, and more choices of location, than any other constructed to this date. However, the ambiguity of the ADA regulations, and the lack of guidance and participation by the Justice Department in these matters, has created an unfortunate situation in which defendants can act in good faith and still fail to comply with the law. It is a sad predicament, *fn4" but it is nonetheless what the Court and the parties face today.

 I. Statutory Background and the Court's October 21, 1996 Decision

 A. The Americans With Disabilities Act

 The Americans with Disabilities Act was enacted in 1990 to address what Congress found to be a "serious and pervasive social problem" of "discrimination against individuals with disabilities" in public accommodations, employment, transportation, and other areas of public life. 42 U.S.C. § 12101(a). In passing the law, Congress expressly found that "individuals with disabilities continually encounter various forms of discrimination," including "the discriminatory effects of architectural, transportation and communication barriers" and "relegation to lesser services, programs, [and] activities." Id.

 The ADA was passed "to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities." 42 U.S.C. § 12101(b). Title III of the Act bans discrimination against persons with disabilities by owners or operators of public accommodations. It provides that:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.

 42 U.S.C. § 12182(a).

 The ADA imposes different requirements on "existing facilities" than it does on "new construction." For existing facilities, the Act requires the removal of "architectural barriers . . . where such removal is readily achievable," and permits the use of "alternative methods" where removal of architectural barriers is not readily achievable. 42 U.S.C. § 12182(b)(2)(v). By contrast, in "new construction" -- any facility designed and constructed for "first occupancy" after January 26, 1993 -- the Act censures the "failure to design and construct facilities . . . that are readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). This command to build accessible facilities is excepted only if meeting the requirements of the Act would be "structurally impracticable." Id. See also 28 C.F.R. § 36.401(c) (structural impracticability means "those rare circumstances where the unique characteristics of the terrain prevent the incorporation of accessibility features."). *fn5"

 B. Interpretive Role of the Justice Department

 The ADA itself sets out only broad principles for the elimination of discrimination against persons with disabilities. Congress granted primary enforcement authority to the Attorney General and also empowered her to issue more specific regulations for compliance with Titles II and III of the Act. *fn6" 42 U.S.C. § 12186(b). Congress also directed the Architectural and Transportation Barriers Compliance Board ("the Board") to issue "minimum guidelines" for Titles II and III. 42 U.S.C. § 12204(a). The Board's provisions-- the ADA Accessibility Guidelines (ADAAG)-- do not have any binding effect on their own, but instead help shape the Attorney General's regulations, which must be "consistent" with the ADAAG. *fn7" 42 U.S.C. § 12186(c). The Justice Department's Standards for Accessible Design (JDSAD), codified at 28 C.F.R. Pt. 36, App. A, are very consistent; indeed, they are exactly the same as the ADAAG.

 C. The Court's Earlier Ruling

 On October 21, 1996, the Court ruled that JDSAD § 4.33.3 requires an "enhanced" line of sight-- a view of the performance floor over persons in front of them when those persons rise from their seats to stand-- for wheelchair patrons at sports and concert venues. Historically, the law has not required these sightlines. Pre-ADA accessibility standards, such as the Minimum Guidelines Requirements for Accessibility Design, did not require enhanced sightlines, even though they contained essentially the same language as the ADAAG and the JDSAD. Furthermore, the Access Board has declined to address the issue of lines of sight over standing spectators. The Board twice solicited comments on the issue, but each time it deferred decision until a later date.

 However, the interpretation of the Department of Justice, and not the historical requirements or even the interpretation of the Access Board, shapes the meaning of the regulation. The Court denied defendants' motion for summary judgment and held as a matter of law that the ADA, through JDSAD § 4.33.3, requires that wheelchair-accessible spaces be dispersed throughout the seating bowl and that substantially all wheelchair locations provide an "enhanced" line of sight over standing spectators, if spectators can be expected to stand during the event. *fn8"

 D. The Present Trial

 After the October 21 ruling, the only issues left for trial concern the compliance of the MCI Center with the ADA standards. There are few factual issues to consider. For the most part, the parties agree on what sightlines various seats provide; they disagree primarily on the legal issues of compliance. Specifically, the parties disagree on the number of seats that must provide these "enhanced" sightlines, on the required dispersal of those seats, on whether operational measures can be employed to create satisfactory sightlines, and on whether spaces in luxury suites can be counted towards the required number of enhanced sightline seats.

 II. Factual Findings

 A. The Parties

 The primary plaintiff in the case is Paralyzed Veterans of America ("PVA"), a nationwide membership organization, chartered by Congress just after World War II. See 36 U.S.C. § 1151 et seq. It has 34 chapters with approximately 17,000 members nationwide, including two chapters with approximately 345 members in the Washington, D.C., metropolitan area. Almost all PVA members are wheelchair users. Some PVA members in the Washington, D.C., metropolitan area attend sporting contests and other entertainment events.

 In addition, there are four individual plaintiffs. Fred Cowell, Geoffrey Hopkins, Andrew Krieger, and Lee Page are each a wheelchair user and a member, employee, or both, of the PVA. Each of the four has attended several sporting events or concerts at various arenas in the recent past, and each is interested in attending events at the MCI Center. These plaintiffs have shown that their enjoyment of an event could be hampered if the seating bowl is built as currently designed.

 The case originally had eight defendants. Two of these defendants-- Ellerbe Becket Architects & Engineers, P.C. and Ellerbe Becket, Inc., were dismissed from the case pursuant to this Court's decision on July 29, 1996. A third defendant, D.C. Arena Associates, Inc, was dismissed on August 22, 1996.

 The remaining five defendants are D.C. Arena, L.P., Washington Sports & Entertainment, Inc., Centre Group, L.P., Abe Pollin Sports, Inc., and Abe Pollin. Each defendant is a person or an entity that will "own" or "operate" the MCI Center, within the meaning of the ADA. 42 U.S.C. § 12182(a). The ground lease for the site permits DCALP to operate the building for 30 years, with the possibility of two ten year extensions.

 B. The Structural Design of MCI Center

 The MCI Center is designed as a "multi-purpose" facility, which will include a seating bowl for sporting and entertainment events, offices for arena and team officials, and a large commercial area. Designs for the arena were chosen in January of 1995, and ground was broken in October of that year. Since that time, construction has proceeded rapidly, and much of the structure for the upper seating bowl is in place. Despite this rapid construction schedule, defendants have on several occasions represented to the Court that they could, even at this late date, implement changes in the seating bowl to comply with ADA regulations.

 The arena will host a range of activities, including basketball and hockey games, concerts, and other entertainment events. To accommodate this variety of attractions, the spectator seating bowl is designed to be reconfigured for different events. At this date, there are four such designs: the "Basketball", "Hockey", "360 Stage" and "270 Stage" configurations. The arena is designed to have three seating levels for the general public: the lower bowl, the Club level, and the upper bowl. The expected general seating capacity for these arrangements is 17,989 for basketball, 17,240 for hockey, 18,468 for the 360 stage, and 16,249 for the 270 stage. The general seating levels provide for 189 wheelchair spaces in the basketball configuration, for 182 in hockey, for 213 in the 360 stage, and for 165 in the 270 stage wheelchair seating locations. There are wheelchair spaces provided at every level of the seating bowl.

 There are also 109 suites on two levels, with a total seating capacity of approximately 1,600 persons. *fn9" Each of these suites is designed with a wheelchair space (one suite contains two spaces) in the second row of seating. The suites will be privately leased as entire entities, for terms of 3, 5, 7, or 10 years, at a cost of approximately $ 100,000 to $ 175,000 per year. Most suites have been sold to corporations. There is not currently any plan to make seating in suites available for purchase by the general public.

 It is reasonable to expect that at many sporting and entertainment events to be held at the MCI Center, spectators who are able to do so will stand during particularly interesting, exciting, or significant portions of the event. *fn10" The parties have stipulated to this expectation and also supported it with testimony at trial. Such standing will block the view of many wheelchair patrons, who will be unable to see over the ambulatory spectators.

 It is undisputed that several seats in each configuration already provide such an enhanced line of sight over standing spectators. There are 64 such seats in the lower bowl (38 in the 270 stage configuration), *fn11" mostly in the two endzones, and 7 in the Club level (six in hockey, three in 270 stage). Therefore, the basketball and 360 stage configurations provide 71 seats which already comply with ADA regulations, and the hockey and 270 stage provide 70 and 41 such seats, respectively. Most of the ...

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