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June 25, 1997


The opinion of the court was delivered by: IRENAS


 IRENAS, District Judge:

 This matter appears before the Court on defendants' motion for partial summary judgment. Defendants argue that summary judgment is appropriate on the following issues: (1) whether the Blockbuster-Sony Music Entertainment Centre ("E-Centre") violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12201 et seq., and its implementing regulations. the Justice Department's Standards for Accessible Design ("JDSAD"), 28 C.F.R. pt. 36 App. A § 4.33.3, by failing to provide unobstructed lines of sight for wheelchair users over spectators standing in front of them; and (2) whether the lawn area outside the E-Centre pavilion violates the ADA and the JDSAD. Defendants' motion for partial summary judgment is granted as to both issues. *fn1"


 Plaintiffs William Caruso ("Caruso") *fn2" and the Advocates for Disabled Americans *fn3" filed their complaint on July 14, 1995, alleging that defendants' E-Centre facility *fn4" does not comply with the public accommodations provisions of the ADA. Construction of the E-Centre began in the spring of 1994 and it opened to the public in May 1995. On July 13, 1995, Caruso attended a concert at the E-Centre. He alleges two specific ADA violations: (1) he could not see the concert from his wheelchair because the E-Centre does not have enhanced lines of sight for the disabled; and (2) the E-Centre's lawn area was not accessible to him. To support the allegations, plaintiffs rely on an expert report, prepared by Paradigm Design Group ("Paradigm"). *fn5" Defendants filed the instant motion for partial summary judgment on April 30, 1997, claiming that several of the claims raised in the Paradigm report should be dismissed.


 Standard for Summary Judgment

 Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "if 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 a judgment as a matter of law." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).

 B. Enhanced Lines of Sight

 Plaintiffs allege that the E-Centre fails to comply with 28 C.F.R. pt. 36 App. A § 4.33.3, an ADA regulation that provides as follows: "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. " Plaintiffs allege that the phrase "comparable" lines of sight mandates that wheelchair users be given "enhanced" lines of sight, which would enable them to see over the heads of standing spectators. *fn6"

 To support this interpretation of § 4.33.3, plaintiffs rely on the 1994 Supplement to a 1993 Department of Justice ("DOJ") Technical Assistance Manual ("TAM"). See Def. Ex. 2 at 3. The 1994 TAM Supplement provides as follows:


In addition to requiring companion seating and dispersion of wheelchair locations, ADAAG requires that wheelchair locations provide people with disabilities lines of sight comparable to those for members of the general public. Thus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheelchair locations must provide lines of sight over spectators who stand.

 Department of Justice, Americans with Disabilities Act Technical Assistance Manual, 1993 & Supp. 1994, III-7.5180 (emphasis added).

 Defendants contend that the plain language of § 4.33.3 does not require enhanced lines of sight and that the DOJ TAM provision is inapplicable because DOJ failed to follow appropriate administrative procedures. Moreover, defendants argue that even if DOJ had adhered to the proper procedures, the provision would still be inapplicable because it was issued after construction of the E-Centre began.

 1. Legislative History

 Congress enacted the ADA in 1990. See Pub. L. No. 101-336, 104 Stat. 369 (1990). In the ADA, Congress mandated that the United States Architectural and Transportation Barriers Compliance Board ("Access Board") *fn7" issue minimum guidelines *fn8" to implement Title III of the ADA, which covers access to public accommodations. *fn9" See 42 U.S.C. § 12204. Certain federal agencies, including the DOJ, must then issue regulations consistent with the Access Board's minimum guidelines. See 42 U.S.C. § 12186(b), (c). The ADA provided for interim accessibility standards that governed until the DOJ passed its final regulations. See 42 U.S.C. § 12186.

 In accordance with the ADA, the Access Board issued the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). See 56 Fed. Reg. 35,408 (1991) (codified at 36 C.F.R. pt. 1191 App. A). The Access Board promulgated its guidelines in accordance with the notice-and-comment procedures required by the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. That same day, the Department of Justice adopted the ADAAG as its own regulations, entitled the Justice Department's Standards for Accessible Design ("JDSAD"). See 56 Fed. Reg. 35,544, 35,586 (1991) (codified at 28 C.F.R. pt. 36 App. A).

 The parties present three sources of authority for determining whether the E-Centre must have enhanced lines of sight. First, there is the statute itself, which does not contain any specific provisions governing sight lines in assembly areas. Second, we have 28 U.S.C. pt. 36 App.A. § 4.33.3, the DOJ's properly promulgated regulation, which as defendants correctly point out, does not expressly contain an enhanced sight line requirement. Finally, we have a DOJ TAM provision that does include such a requirement.

 2. DOJ TAM Provision

 First, we address to what degree, if any, the defendants are bound by the supplemental DOJ TAM provision. In issuing this provision, DOJ did not follow APA rulemaking procedures. Defendants claim that the TAM provision is an agency rule that should have been subject to APA requirements. Defendants argue, therefore, that DOJ's failure to follow the APA renders the TAM provision inapplicable to the E-Centre.

 A "rule" is defined by the APA as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4). An agency must publish notice of a proposed rule in the Federal Register. See 5 U.S.C. § 553(b). After notice is given, the agency must provide interested persons with an opportunity to comment on the proposed rule. See id. § 553(c). APA notice-and-comment requirements are applicable only to "legislative" or "substantive" rules; they do not apply to "interpretive" rules. See id. § 553(b); Lincoln v. Vigil, 508 U.S. 182, 196, 124 L. Ed. 2d 101, 113 S. Ct. 2024 (1993).

 An interpretive rule is a provision issued by an agency "to advise the public of the agency's construction of the statutes and rules which it administers." See Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 115 S. Ct. 1232, 1239, 131 L. Ed. 2d 106 (1995). However, once an agency adopts a position that effects a substantive change from existing regulations, the agency must adhere to APA rulemaking procedures. See id. Thus, interpretive rules "must explain existing law and not contradict what the regulations require." See 115 S. Ct. at 1244 (O'Connor, J., dissenting) (emphasis in original); Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1989) ("If the rule in question merely clarifies or explains existing law or regulations, it will be deemed interpretive.").

 Therefore, if the provision of the TAM qualified as an interpretive rule, DOJ would be exempt from the notice-and-comment requirements. We find that this is not the case. *fn10" The DOJ TAM provision is akin to a legislative rule. Therefore, in the absence of proper notice-and-comment procedures, the TAM provision is not binding upon the defendants. Moreover, even if the rule had been validly promulgated, the record reflects that E-Centre construction began before DOJ issued the rule.

 Congress gave the Access Board the authority to set minimum guidelines for compliance with the public accommodations provisions of the ADA. The Access Board specifically requested comment on the question of requiring enhanced lines of sight *fn11" and chose to defer the issue. *fn12" Moreover, the Access Board announced its intention to cover the issue of enhanced lines of sight in a distinct, future regulation. *fn13" If the Access Board did not intend for § 4.33.3 to cover the issue, a DOJ TAM provision cannot be an interpretation of that regulation. On the contrary, the DOJ provision is a new substantive rule. It creates a new set of obligations for the defendants that did not exist prior to late 1994. We find that it is inappropriate to hold defendants to a new standard that did not undergo proper administrative rulemaking procedures. *fn14"

 We recognize that the Attorney General has the primary responsibility for enforcing the ADA. Nevertheless, because of the particular administrative scheme constructed by Congress for the ADA, we find it inappropriate to bind the defendants by the DOJ TAM provision. Congress used very broad language in the public accommodations provision in the ADA. See 42 U.S.C. § 12182. Accordingly, Congress necessarily contemplated the passage of a detailed regulatory scheme. Construction of large facilities is a complex undertaking involving innumerable choices among a host of variables. Congress specifically legislated that the Access Board pass the detailed guidelines needed for the ADA's implementation. In this context, it is inappropriate for the DOJ to choose to adopt word-for-word the Access Board guidelines--guidelines which were subject to notice-and-comment--and then decide several years later to add new obligations that were specifically omitted from those guidelines. When the "legislative history" of an administrative regulation evinces an intent not to cover a certain subject matter, the notice-and-comment requirements of the APA cannot be evaded by merely interpreting an existing regulation to cover subject matter consciously omitted from its scope.

 Congress has elected to pass a very general statute and leave it to the regulatory process to fill in the necessary details. Constructing a stadium or arena is an expensive, complex affair. If the law is to impose certain requirements to assist those with disabilities and to impose an obligation to make expensive retrofits if that law is violated, it is essential that those requirements be clearly articulated in the regulations. Compliance with ADA rulemaking insures, hopefully at least, that all points of view are heard and that the resulting regulation provides concrete guidance to those embarking on such a project. Because the original § 4.33.3 adopted by the Access Board, and on the same day by DOJ, clearly deferred deciding the enhanced sight line issue, no consideration was given to how this goal might be achieved. As plaintiffs' expert report concedes, the technical specifications for eye level adjustments and standing height have not been established by the DOJ or the Access Board. Thus, not only does the DOJ TAM fail to follow the APA procedures for adopting a regulation, it suffers from a vagueness not cured by interpretive manuals or an enforcement history which would put meat on the bones of the concept of enhanced sight lines.

 Finally, we note that the DOJ TAM was adopted in late 1994, after construction of the E-Centre had commenced and significantly after the planning and design work had been completed. Moreover, we have no evidence that the defendants had notice that the DOJ had issued the supplement to its TAM. Therefore, at the time E-Centre construction started nobody would have considered that § 4.33.3 required enhanced sight lines. Quite apart from the failure to follow APA procedures, we would decline to give the DOJ TAM interpretation of § 4.33.3 retroactive application.

 The question that remains to answer is--in the absence of a binding regulation or a valid interpretive rule--how to resolve the question of whether the ADA requires enhanced lines of sight for disabled spectators. Plaintiffs ask this court to interpret § 4.33.3 of the JDSAD or the ADA statutory language itself as requiring enhanced sight lines. We will consider each argument in turn.

 3. Statutory Interpretation

 Most statutes are enforceable as written without need for reliance on implementing regulations. See, e.g., Skidmore v. Swift, 323 U.S. 134, 89 L. Ed. 124, 65 S. Ct. 161 (1944) (Fair Labor Standards Act). The ADA, however, is not such a statute. The statute merely states 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. In our view, Congress did not intend for defendants to be responsible, in the absence of applicable regulations, for determining whether a design provides "full and equal enjoyment" for the disabled. Congress recognized that compliance with the ADA's public accommodations provisions required a set of formal guidelines or regulations. Congress even provided a default set of standards in the event that the DOJ delayed passage of its regulations. Section 12186(d) of the ADA provides:


If final regulations have not been issued pursuant to this section, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regulations under this section . . . compliance with the Uniform Federal Accessibility Standards in effect at the time the building permit is issued shall suffice to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities as required under section 12183 of this title . . . except that, if such final regulations have not been issued one year after [the Board] issued the supplemental minimum guidelines required under section 12204(a) of this title, compliance with such supplemental minimum guidelines shall be necessary."

 42 U.S.C. § 12186(d).

 Clearly, Congress did not intend for the ADA to be enforceable except through the adoption of a detailed regulatory framework. Therefore, in the absence of an applicable regulation, we cannot rely solely on the "full and equal enjoyment" statutory language to hold the defendants liable for building a facility without enhanced sight lines. Considerations of due process and the realities of building large, expensive facilities counsel against the courts making architectural, design or engineering judgments in the guise of statutory interpretation after construction of a project is completed.

 4. DOJ Regulation § 4.33.3

 Alternatively, plaintiffs ask the court to interpret the DOJ regulation itself and to find that "comparable" lines of sight regulation requires defendants to provide seats that enable disabled spectators to see over the heads of standing spectators in front of them. Given the history of the DOJ regulations, we find that such an interpretation of § 4.33.3 is unwarranted.

 The "comparable" lines of sight language that appears in § 4.33.3 also appeared in prior accessibility guidelines. See Minimum Guidelines and Requirements for Accessible Design ("MGRAD"), *fn15" 47 Fed. Reg. 33,862 (Aug. 4, 1982) (codified at 36 C.F.R. pt. 1190) (incorporating by reference American National Standards Institute ("ANSI") *fn16" standard, ANSI A117.1-1986 § 4.31); Uniform Federal Accessibility Standards ("UFAS"), *fn17" 49 Fed. Reg. 31,528 (Aug. 7, 1984) (codified at 41 C.F.R. subpt. 101-19.6 App. A) (adopting ANSI A117.1-1980 § 4.33). Defendants state, and plaintiffs do not dispute, that neither MGRAD nor UFAS were ever interpreted to require enhanced lines of sight. Moreover, the Access Board guidelines themselves adopted the same ANSI standards used to draft the UFAS. See 56 Fed. Reg. 35,408 (1991)(codified at 36 C.F.R. pt. 1191 App. A) (adopting ANSI A117.1-1980 § 4.33).

 Defendants argue, and we agree, that there is nothing in ADA legislative history that suggests that the settled interpretation of "comparable" lines of sight should be replaced with a new interpretation. Specifically, when the DOJ chose to adopt the Access Board guidelines as its own regulations, the DOJ did not express any opinion on whether § 4.33.3 required enhanced lines of sight.

 Plaintiffs argue that defendant could have broached this issue with the DOJ to get its views on the subject. Apart from the obvious observation that there is no provision in the statute for a permitting or licensing procedure, a builder should not be required to guess as to what issues the regulator might have views not available in the public record. When defendant set about to design and construct the E-Centre, it was clear from the public record that the concept of comparable lines of sight had not been interpreted to include enhanced sight lines either under the MGRAD, the UFAS, or the ADAAG, and that this interpretation had been constant since 1984. There is no rational basis for this court to now interpret the regulation in a more expansive way. Therefore, defendants' motion for summary judgment on this issue is granted.

  C. Lawn Seating

 In addition to the interior seating at the E-Centre pavilion, the facility has a lawn area which can accommodate approximately 18,000 spectators who either stand or sit on portable chairs or blankets. See Aff. DiLuigi P 27. Plaintiffs claim that the lawn area is a public accommodation that must be available to disabled spectators, including wheelchair users. See Def. Ex. 2 at 5. Plaintiffs allege that the lawn area should be included in determining whether E-Centre has the requisite percentage of wheelchair spaces. *fn18" Finally, plaintiffs' Paradigm report asserts that the E-Centre violates Section 4.1.2 of the JDSAD because there is no accessible route to the lawn area.

 Section 4.1.3(19)(a) of the JDSAD provides the number of required wheelchair locations for "places of assembly with fixed seating." As the capacity of seating in assembly areas gets larger, the number of required wheelchair spots increases. Defendant argues that because the lawn area does not have fixed seating, it should not be included when calculating the capacity of the E-Centre. Moreover, defendants contend that if the lawn area is excluded from the calculation, the E-Centre exceeds the requisite number of wheelchair locations. *fn19" Plaintiffs admit that the lawn area does not contain fixed seating. See Def. Statement P 22, Pl. Response P 22. Therefore, the lawn area is clearly not encompassed by § 4.1.3(19)(a). Accordingly, we find that compliance with the ADA does not require that the viewer capacity of the lawn area be included in computing the number of wheelchair spaces and their placement. Therefore, as to plaintiffs' claims based on a lack of sufficient wheelchair seating on the lawn area and in the facility as a whole, defendants' motion for summary judgment is granted. *fn20"

 Plaintiffs also allege that the defendants violate JDSAD § 4.1.2 because there is no accessible route for wheelchair users to the lawn area. Section 4.1.2 requires that "at least one accessible route. . .shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site." Defendants, relying on JDSAD § 2.2, argue that the lawn area need not be accessible to the disabled because other areas of the facility provide "equivalent facilitation." Section 2.2 allows "departures from particular technical or scoping requirements. . .by the use of other designs and technologies. . .where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility." Defendants point out that the lawn area seats are not only the least expensive, but also offer the least desirable views of the performance. The E-Centre provides the disabled with higher quality (i.e., closer) seats in the pavilion for the same price as lawn seats. Plaintiffs do not offer any reasons why the interior seats are not equivalent or superior to lawn seating. In our view, the E-Centre provides equal, if not greater, access to its facility for wheelchair users in the interior than it does for non-wheelchair users on the lawn. *fn21"


 We hold that § 4.33.3 of the JDSAD does not require enhanced lines of sight for wheelchair users. We also hold that because the lawn area is not a place with fixed seating, it need not be included in the calculation of minimum wheelchair space requirements. Moreover, we find that the lawn area need not be connected to the pavilion via a wheelchair-accessible route and that the requisite seating can be provided within the pavilion. Accordingly, defendants' motion for partial summary judgment as to these claims is hereby granted. An appropriate order will be entered on even date herewith.

 Dated: June 25, 1997



 IRENAS, District Judge:

 This matter having appeared before the Court on defendants' motion for partial summary judgment, the Court having reviewed the submissions of the parties, and having heard oral arguments, for the reasons set forth in an opinion issued on even date herewith,

 IT IS on this 25th day of June, 1997,

 ORDERED THAT defendants' motion for partial summary judgment is hereby GRANTED.


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