United States District Court, Central District of Illinois, Urbana Division
March 16, 1998
UNITED STATES OF AMERICA, PLAINTIFF,
DAYS INNS OF AMERICA, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Baker, Senior District Judge.
The United States brought this action alleging violations of
the Americans With Disabilities Act (ADA) in the construction of
the Champaign, Illinois, Days Inn hotel. The
case is before the court on cross motions for summary judgment.
The court now holds as a matter of law that the defendants Days
Inns of America, Inc. and its parent company, HFS, Inc., are
liable for any violations of the ADA in the construction of the
Champaign Days Inn hotel.
The following facts are uncontested. HFS, Inc. is the parent
company of Days Inns of America, Inc. Days Inns of America
licenses the use of its trademark to over 1,700 hotels across the
United States. Days Inns of America enters into license
agreements with persons or entities who own and operate the
individual Days Inn hotels. Days Inns of America provides to its
licensees a national reservation system, service marks, marketing
systems, franchise services, employee training assistance and
other services. Licensees pay fees to Days Inns of America.
Licensees are required to maintain certain minimum standards. The
license agreement requires that the individual licensee obtain
approval from Days Inns of America prior to commencement of
construction of an individual hotel. Days Inns of America at
times makes comments on individual hotel plans, and may address
accessibility for disabled guests with individual hotels.
In order to ensure uniformity and consistency across the
nation, Days Inns of America inspects individual hotels several
times each year. Additionally, Days Inns of America provides
operating manuals to its licensees, including the Planning and
Design Standards Manual. The Days Inns of America Planning and
Design Standards Manual reflects minimum standards. The Manual is
used nationwide, and of course, does not contain individual
blueprints for individual hotels. The Manual requires corporate
approval of individual hotel plans to ascertain initial
compliance with Days Inns of America standards. The Manual
includes language assigning the burden of compliance with federal
and state regulations to individual licensees.
In the instant case, Days Inns of America entered into a
license agreement with Panchel & Patel Inc. for the construction
of a Champaign, Illinois Days Inn hotel. Panchel & Patel hired an
architect and oversaw construction of the hotel. Panchel & Patel
submitted plans to Days Inns of America for review. At one point
an HFS Design & Construction Manager reviewed the Champaign
construction plans and made suggestions. There was an ongoing
interactive relationship between HFS, Days Inns of America and
Panchal & Patel during the design and construction of the
Champaign Days Inn hotel.
Since its completion, the Champaign hotel has undergone several
inspections by Days Inns of America. During these inspections,
Days Inns of America checks for compliance in a variety of areas.
Panchel & Patel are of course responsible for the day to day
maintenance and operation of the hotel, but they are also
regulated through their licensing agreement, by Days Inns of
Americans With Disabilities Act (ADA)
The purpose of the ADA is to provide "a clear and comprehensive
mandate for the elimination of discrimination against individuals
with disabilities." 42 U.S.C. § 12101(b)(1). The courts, in
accordance with the mandates of Congress are to work to "end
discrimination against individuals with disabilities and to bring
persons with disabilities into the economic and social
main-stream of American life; to provide enforceable standards
addressing discrimination against individuals with disabilities,
and to ensure that the Federal government plays a central role in
enforcing these standards on behalf of individuals with
disabilities." A & P Comm. Print 1990(28A) (U.S. House of
Representatives Committee on Education and Labor Report)
The Congress found that "some 43,000,000 Americans have one or
more physical or mental disabilities, and this number is
increasing." A & P 136 Cong. Record D623. "Individuals with
disabilities have been denied for so long, services, jobs,
housing, transportation, hotel rooms . . ." A&P Comm. Print
1990(28B) (statement of Representative Jeffords). "Disabled
people are frequently frustrated by the inaccessibility of
hotel rooms. Very few rooms, even in new hotels are made fully
accessible." A&P 136 Cong.Rec. D646 (statement of Representative
Hayes). The ADA was enacted to address the discrimination against
disabled Americans in all aspects of their lives, including
eliminating discrimination in hotel accommodations.
Design and Construct
Congress' concern that all newly constructed hotels be
accessible was codified in § 303 of the ADA:
§ 12183. New construction and alterations in public
accommodation and commercial facilities.
(a) Application of term
Except as provided in subsection (b) of this section,
as applied to public accommodations and commercial
facilities, discrimination for purposes of section
12182(a) of this title includes —
(1) a failure to design and construct facilities
for first occupancy later than 30 months after 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
42 U.S.C. § 12183 (emphasis added).
Both parties and the court agree that the Champaign Days Inn
hotel is a "new construction" of a "commercial facilit[y]" under
42 U.S.C. § 12183 (§ 303). Liability under that statutory section
is assigned to those who "design and construct" the facility. The
first statutory interpretation issue is, therefore, did the
corporate defendants, Days Inns of America and HFS, "design and
construct" the Champaign Days Inn hotel within the meaning of the
Days Inns of America designs and constructs hotels in that it
carefully licenses and regulates and contributes to the planning
of, and building of, hotels across the nation. Days Inns of
America has much to do with the design and construction of
individual hotels such as the Champaign, Illinois Days Inn hotel.
Days Inns of America cannot shirk responsibility for following
federal law in its ongoing involvement in the design and
construction of hotels. "Design and construct" is a broad sweep
of liability, it includes architects, builders, planners, and
most definitely national hotel licensing corporations which exist
for the sole purpose of ensuring that new hotels are designed and
constructed in accordance with acceptable standards. The
defendants in this case, Days Inns of America and its parent, do
indeed "design and construct" hotels.
The plain language of § 303 states that new construction of
commercial facilities must be "readily accessible to and usable
by individuals with disabilities." If newly constructed
commercial facilities are not accessible then those who designed
and constructed them are in violation of the law. The recently
constructed Champaign Days Inn hotel allegedly is not readily
accessible and usable by individuals with disabilities, and
therefore those responsible for its design and construction are
liable under the ADA. The defendants Days Inns of America and its
parent corporation, HFS, fall easily into the "design and
construct" language of § 303.
The court notes that it disagrees with the analysis of the
factually distinguishable case of Paralyzed Veterans of America
v. Ellerbe Becket Architects, 945 F. Supp. 1 (D.D.C. 1996)
aff'd, 117 F.3d 579 (D.C.Cir. 1997) cert. denied, ___ U.S.
___, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). That case found
architects not liable under § 303 because the architects only
designed and did not construct the inaccessible facility. "The
phrase `design and construct' is distinctly conjunctive. It
refers only to parties responsible for both functions."
Paralyzed Veterans of America, 945 F. Supp. at 2. This court
finds such a narrow, literal reading of the statute inappropriate
to carry out the intent of the ADA. Paralyzed Veterans
correctly notes that the "and" in "design and construct" is a
conjunctive term, but does this obvious grammatical truth
necessarily require a narrow reading of liability? "Design and
construct" may be read conjunctively without being read narrowly.
"Design and construct" enforce each
other in that those who design or construct also construct and
In the case at bar, a conjunctive reading of "design and
construct" does not exonerate Days Inns of America and HFS. These
corporate defendants were involved contractually and in a
supervisory role with both the design of the Champaign Days Inn
hotel and its construction. The record shows the corporate
defendants reviewed the design in the planning stage of the
project and that the corporate defendants continued to be
involved through review and correspondence throughout the
construction of the hotel.
Own, Lease or Operate
The defendants argue that the provisions of § 303 as to
accessibility of new construction are ambiguous and therefore
require incorporation of the "own, lease or operate" language of
a separate statutory provision — § 302's public accommodations
§ 12182 Prohibition of discrimination by public
(a) General rule
No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment
of the goods services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or
leases to) or operates a place of public
42 U.S.C. § 12182 (emphasis added).
Congress did not choose to include the "own, lease or operate"
language into the new construction of commercial facilities
provisions of § 303. The inclusion of that language in the new
construction of commercial facilities provisions would negate the
plain language of the statute and would require a Congressional
intent analysis on the part of the court. There are two
non-binding cases which use the "own, lease or operate" language
from § 302 to restrict new construction of commercial facilities
liability under § 303. See, Neff v. American Dairy Queen,
58 F.3d 1063 (5th Cir.) cert. denied, 516 U.S. 1045, 116 S.Ct.
704, 133 L.Ed.2d 660 (1996) (holding a national licensing
corporation not liable under the ADA because it did not own or
operate a local franchise); Paralyzed Veterans of America v.
Ellerbe Becket Architects, 945 F. Supp. 1 (D.D.C. 1996) affd.,
117 F.3d 579 (D.C.Cir. 1997) cert. denied, ___ U.S. ___, 118
S.Ct. 1184, 140 L.Ed.2d 315 (1998) (holding architects not liable
under the ADA because they do not own, lease or operate).
The court finds the two cases rejecting judicial transference
of § 302's "own, lease, or operate" into § 303 more persuasive.
Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175 (S.D.Fla.
1997); United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262
(D.Minn. 1997). In Johanson the district court wryly noted that
incorporating restrictive "own, lease or operate" language "would
effectively eliminate § 302's coverage of commercial facilities,
despite the language in § 302 which explicitly names commercial
facilities in connection with the new construction mandate."
963 F. Supp. 1175, 1178 (S.D.Fla. 1997). Similarly, in Ellerbe
Becket, the court noted that incorporating a restrictive reading
of the "own, lease or operate" language results "in an
inexplicable gap in coverage of a class of building Congress
clearly intended to be covered by the accessibility standards for
new construction." 976 F. Supp. at 1267. The defendants in the
instant case, like the defendants in Johanson and Ellerbe
Becket argue for a judicial transference of statutory language
which when accomplished would make it "conceivable that no entity
would be liable for construction of a new commercial facility
which violates the ADA." Ellerbe Becket, 976 F. Supp. at 1268
(quoting Johanson, 963 F. Supp. at 1178).
In the alternative, even if Congress did intend "own, lease or
operate" to apply to new construction of commercial facilities
under § 303, that does not necessarily allow Days Inns of America
or HFS, Inc. to escape liability. It is appropriate to find Days
Inns of America and HFS liable as operators of the Champaign Days
Inn hotel. There is legislative history to support that corporate
franchising chains are indeed liable under the "own, lease or
operate" language of the statute.
In a House of Representatives Committee on Education and Labor
Report section 302's
"own, lease or operate language" is said to "clarify that the
owner of a public accommodation is liable for discriminatory
policies. For example, if the corporate headquarters for a chain
of restaurants designs all new restaurants to contain barriers to
access, an injunction could be brought against the corporation to
enjoin the inaccessible new construction." A&P ADA Comm. Print
1990(28A). In a congressional debate, Representative Fish stated
in reference to § 302 that "the amendment (§ 302) also makes it
clear that the owner and operator of the public accommodation are
prohibited from discriminating in accordance with this title.
Corporate headquarters would be covered to the same extent as the
operator of the accommodation. For example, corporate
headquarters could not continue to design new stores in an
inaccessible manner in violation of § 303." A&P 136 Cong. Record
In light of the congressional record's clear statement that §
302's "own, lease or operate" language includes corporate
headquarters, it is untenable to argue that Congress intended the
instant corporate defendants to be free from liability. Corporate
headquarters, such as Days Inns of America and HFS should "not
continue to design new stores [hotels] in an inaccessible manner
in violation of § 303." A&P 136 Cong. Record D646 (statement of
The uncontested facts in this case support holding as a matter
of law, that the defendants, Days Inns of America, Inc. and its
parent company, HFS, Inc., are liable for any violations of the
ADA in the construction of the Champaign, Illinois, Days Inn
hotel. The case will proceed on the factual issues of identifying
specific violations of the ADA's accessibility requirements and
IT IS THEREFORE ORDERED THAT:
(1) The defendants' motion for summary judgment (docket # 53)
(2) The plaintiff's motion for summary judgment (docket # 49)
is granted in part as to the issue of liability.
(3) The case is set for a Rule 16 hearing for further
scheduling and case management on April 16, 1998 at 1:30 p.m.
before Judge Baker, United States District Court, Urbana,
© 1992-2003 VersusLaw Inc.