Pinnock v. International House of Pancakes Franchisee

*578 AMENDED ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING CROSS-MOTION BY UNITED STATES FOR SUMMARY JUDGMENT ON CONSTITUTIONAL CHALLENGES 1

I. Background

Plaintiff, Theodore A. Pinnock (“Pinnock”) filed the complaint in this action against Defendant, Majid Zahedi, owner of an International House of Pancakes franchise (“Zahedi”). 2 Pinnock, an attorney representing himself, is unable to walk and uses a wheelchair. Pinnock dined at the defendant’s restaurant on June 21, 1992, and then attempted to use the restroom. The entrance to the restroom, however, was not wide enough to admit his wheelchair. Pin-nock therefore removed himself from his wheelchair and crawled into the restroom. As a result of this encounter, Pinnock alleges nine causes of action against Zahedi. Five of the causes of action arise under state law, alleging violations of the state health and safety code, the Unruh Civil Rights Act, and infliction of emotional distress. The remaining four causes of action are alleged under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), arising from Zahedi’s alleged failure to comply with the statute’s provisions governing access for disabled individuals in public accommodations (“title III”). 3

Zahedi presented twenty-five affirmative defenses in his answer to the complaint. Among these, and at issue here, are allegations that the ADA violates numerous provisions of the United States Constitution. Zahedi filed a compulsory counterclaim for Declaratory Judgment on the constitutional challenges pursuant to 28 U.S.C. §§ 1331 and 2201. The United States intervened pursuant to rule 24(a) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2403, to defend the constitutionality of the ADA, and filed a cross-motion for summary judgment on the constitutional issues. As no court has yet considered the constitutional challenges raised by Zahedi, these motions call upon the Court to decide questions of first impression.

II. Zahedi is a Member of an Industry Which Affects Interstate Commerce and is Properly Regulated by Title III

Zahedi argues that Congress does not have constitutional authority to regulate his facility, asserting that title III of the ADA exceeds the powers granted Congress by the U.S. Constitution. Congress enacted title III pursuant to Article I, Section 8, of the United States Constitution, which grants Congress the power to “regulate Commerce ... among the several States” and to enact all laws necessary and proper to this end. U.S. CONST., art. I, § 8, els. 3, 18; Katzenbach v. McClung, 379 U.S. 294, 301-02, 85 S.Ct. 377, 382, 13 L.Ed.2d 290 (1964). The Supreme Court has consistently held that Congress is empowered under the Commerce Clause to regulate not only interstate activities, but also intrastate activities that substantially affect interstate commerce. See, e.g., McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 241, 100 S.Ct. 502, 508, 62 L.Ed.2d 441 (1980); Perez v. United States, 402 U.S. 146, 151, 91 S.Ct. 1357, 1360, 28 L.Ed.2d 686 (1971) (citing United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942)); Wickard v. Filburn, 317 U.S. 111, 122-25, 63 S.Ct. 82, 87-89, 87 L.Ed. 122 (1942); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819).

The Commerce Clause allows Congress to regulate any entity, regardless of its individual impact on interstate commerce, so long as the entity engages in a class of activities that affects interstate commerce. Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 2457, 85 L.Ed.2d 829 (1985); Hodel v. *579 Virginia Surface Min. & Reclamation Ass’n, 452 U.S. 264, 277, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (citing Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363 (1975)); Perez, 402 U.S. at 151-54, 91 S.Ct. at 1360-61. As the Supreme Court stated in United States v. Darby, Congress has “recognized that in present day industry, competition by a small party may affect the whole and that the total effect of the competition of many small producers may be great.” 312 U.S. 100, 123, 61 S.Ct. 451, 461, 85 L.Ed. 609 (1941). See also Wickard, 317 U.S. at 128-29, 63 S.Ct. at 90-91.

Courts must defer to congressional findings that an activity affects commerce, so long as there is a rational basis for such a finding. Hodel, 452 U.S. at 276, 101 S.Ct. at 2360; Katzenbach, 379 U.S. at 303-04, 85 S.Ct. at 383 (1964). As the Supreme Court recognized in the context of racial discrimination, the restaurant industry unquestionably affects interstate commerce in a substantial way. In Katzenbach, the Court noted,

discrimination in restaurants ha[s] a direct and highly restrictive effect upon interstate travel by Negroes. This resulted ... because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating.

379 U.S. at 300, 85 S.Ct. at 381-82. Thus, regardless of Zahedi’s individual circumstances, he is subject to Commerce Clause regulation as a member of the restaurant industry.

Even aside from its membership in an interstate industry, Zahedi’s restaurant demonstrates characteristics which place it squarely in the category of interstate commerce. It is a franchise of a large, international, publicly traded corporation (“IHOP Corp.”), organized under Delaware law. IHOP Corp. had total retail sales of $479 million in 1992, operates 547 franchises in thirty-five states, Canada, and Japan, and employs 16,000 persons. 4 Furthermore, Zahedi’s restaurant is located directly across the street from State Highway 163, and within two miles of two interstate highways. There are three hotels within walking distance, and three motels within one and one-half miles of the restaurant. 5 The courts have found these facts to be indicia of a business operating in interstate commerce. See Katzenbach, 379 U.S. at 300-01, 85 S.Ct. at 381-82 (restaurant on state highway, 11 blocks from interstate highway, affected commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243, 85 S.Ct. 348, 350, 13 L.Ed.2d 258 (1964) (motel two blocks from downtown road and “readily accessible” to two intrastate and two interstate highways affected commerce); Miller v. Amusement Enters., Inc., 394 F.2d 342, 345 (5th Cir.1968) (amusement park 150 yards from interstate highway affected commerce).

Congressional enactment of title III of the ADA was well within Congress’ power to regulate interstate commerce under the Commerce Clause. As .part of the restaurant industry, Zahedi is subject to the provisions of title III, which by its own terms, reaches as broadly as the Commerce Clause permits. 6 As a member of the restaurant industry and as an individual enterprise which caters to travelers, Zahedi’s restaurant is properly regulated by title III of the ADA.

III. Title III of the ADA is Not Unconstitutionally Vague

Zahedi argues that many of the terms used in section 12182(b)(2) of title III are unconstitutionally vague and are therefore in violation of the Due Process Clause of the Fifth Amendment. Statutes which fail to adequately specify the actions or conduct necessary to conform with the law pose problems *580 for which the Supreme Court has expressed serious concern. 7 However, the terms with which Zahedi takes issue do not deprive private businesses of the ability to steer between lawful and unlawful conduct. To the contrary, the statute, its preamble, the legislative history, and the accompanying guidelines provide more than ample explanation of the statute’s application.

A. Statutes Regulating Commercial Activity are Subject to Lower Standards of Specificity

Vagueness challenges are considered under varying standards, depending upon the nature of the statute. Statutes which threaten to inhibit freedom of speech or other constitutionally protected rights face a more stringent vagueness test. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 & n. 7, 102 S.Ct. 1186, 1192 & n. 7, 71 L.Ed.2d 362 (1982); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). Criminal statutes, in general, face a higher vagueness standard than do civil statutes: “The Court has ... expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193. See Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948) (where a statute imposes criminal penalties, the standard of certainty is higher). 8

By contrast, purely economic regulations are subject to lower standards of specificity. In Hoffman Estates, the Supreme Court held that:

[E]conomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.... Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.

455 U.S. at 498, 102 S.Ct. at 1193; see also Grayned, 408 U.S. at 109, 92 S.Ct. at 2299 (1972); Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir.1985).

Title III of the ADA is a civil statute regulating commercial conduct. 9 As such, Zahedi can successfully sustain its challenge only if he can prove that the enactment specifies “no standard of conduct ... at all.” Hoffman Estates, 455 U.S. at 489 & n. 7, 102 S.Ct. at 1186 & n. 7. See also Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971) (invalidating criminal statute found to be vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”); Boutilier v. Immigration *581 and Naturalization Service, 387 U.S. 118, 121, 87 S.Ct. 1563, 1570, 18 L.Ed.2d 661 (1967) (to violate due process, a statute must be “so vague and indefinite as really to be no rule or standard at all”).

B. Limiting Constructions Offered by the Department of Justice are Properly Considered

In evaluating a vagueness challenge, a court should consider the words of the ordinance, interpretations given to analogous statutes, and “the interpretation of the statute given by those charged with enforcing it.” Grayned, 408 U.S. at 110, 92 S.Ct. at 2300. See also Hoffman Estates, 455 U.S. at n. 5, 102 S.Ct. at n. 5 (in reviewing a statute for vagueness, a federal court must consider limiting constructions proffered by an enforcing agency.); Ward v. Rock Against Racism, 491 U.S. 781, 795, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661 (1989) (same). Administrative regulations and interpretations may provide sufficient clarification for statutes that might otherwise be deemed vague. United States v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993); see, e.g., Hoffman Estates, 455 U.S. at 502, 504, 102 S.Ct. at 1195, 1196; Fleming v. USDA, 713 F.2d 179, 184 (6th Cir.1983).

Zahedi argues that the limiting constructions offered by the Department of Justice should not be considered when examining the statute for vagueness because none of the cases cited by the Government involve federal statutes. While it is true that the provisions considered in Grayned, Hoffman Estates, and Ward were state or municipal statutes rather than federal statutes, Zahedi has offered no basis for differentiating between state and federal statutes in this context. There is no language in either Grayned, Hoffman Estates or Ward indicating that the Supreme Court intended to exclude federal statutes from the benefit of limiting constructions. Furthermore, such a distinction is contrary to reason: when federal and state statutes are challenged on the same constitutional grounds, they should be held to the same standard. The reasons for applying limiting constructions to state statutes apply with equal force to federal statutes. Therefore, the limiting constructions offered by the Department of Justice and the title III Technical Assistance Manual, which are available to the public, are properly considered.

C. Each of the Challenged Terms, When Considered in Conjunction With Limiting Constructions, is Sufficiently Precise

In Grayned, the Supreme Court upheld a challenged statute that was “marked by ‘flexibility and reasonable breadth, rather than meticulous specificity’ ” noting that “we can never expect mathematical certainty from our language.” 408 U.S. at 110, 92 S.Ct. at 2300. Likewise, the terms of title III are marked by well-reasoned flexibility and breadth. When considered in conjunction with the Department of Justice guidelines, these terms are not unconstitutionally vague.

1. Readily Achievable Barrier Removal

Title III requires existing places of public accommodation to remove architectural barriers to access, where such removal is “readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv) (Supp. II 1990). The term is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9) (Supp. II 1990). The statute enumerates four factors to consider when determining whether a modification is readily achievable, and the legislative history lists examples of the types of changes Congress believes are readily achievable. These include specific examples for small stores and restaurants such as rearranging tables and chairs and installing small ramps and grab bars in restrooms. See U.S. Mem. in Support of Cross Mot. for Sum. J. at n. 27 (citing 42 U.S.C. § 12181(9) (Supp. II 1990)).

In addition, the federal regulation further elucidates the term “readily achievable” by adding other factors. These include the overall financial resources of the parent corporation and safety requirements. 28 C.F.R. § 36.104, at 460-61 (1991). The regulation lists 21 examples of barrier removal likely to be “readily achievable” in many circumstances, such as installing ramps and reposi *582 tioning shelves and telephones. See id. § 36.304(b), at 466, & app. B, at 676-77.

Finally, the preamble to the regulation provides further explanation and notes that use of a more specific standard would contravene the goals of the ADA:

the Department has declined to establish in the final rule any kind of numerical formula for determining whether an action is readily achievable. It would be difficult to devise a specific ceiling on compliance costs that would take into account the vast diversity of enterprises covered by the ADA’s public accommodation requirements and the economic situation that any particular entity would find itself in at any moment.

Id. at § 36.104, app. B, at 577.

These specifications easily met the requirements for economic regulation announced in Hoffman Estates.

2.Alternatives to Barrier Removal

Title III provides that where barrier removal is not readily achievable, a covered entity must make its goods or services available through “alternative methods if such methods are readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(v) (Supp. II 1990). The legislative history, the regulation itself, and the preamble all provide specific examples of appropriate alternatives to barrier removal. These include providing curb service or home delivery, coming to the door of the facility to handle transactions, serving beverages at a table for persons with disabilities where a bar is inaccessible, providing assistance to retrieve items from inaccessible shelves, and relocating services and activities to accessible locations. Senate Report at 66; 28 C.F.R. § 36.305(b), at 467-68, app. B, at 599 (1991). These provisions also meet the specificity requirements for economic regulations.

3.Reasonable Modifications of Policies and Procedures

The statute requires public accommodations to:

make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford such goods, services ... to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;

42 U.S.C. § 12182(b)(2)(A)(ii) (Supp. II 1990). Zahedi argues that the phrases “reasonable modifications” and “fundamentally alter” are unconstitutionally vague.

Illustrations of the term “reasonable modifications” are provided in the title III regulation and its preamble. For example, stores in which all of the checkout aisles are not accessible are required to ensure that an adequate number of accessible checkout aisles are left open at all times. See 28 C.F.R. § 36.302(d), at 465 (1991). Likewise, facilities that do not permit entry to animals would be required to modify such policies as they apply to service animals accompanying disabled individuals. Id. § 36.306(c), at 465.

The preamble to the title III regulation contains a lengthy explanation of the concept of fundamental alteration, and explains that the ‘Tule does not require modifications to the legitimate areas of specialization of service providers.” 28 C.F.R. pt. 36, app. B, at 592 (1991). The preamble also provides an example of an acceptable referral to another provider who specializes in a requested service. Id.

Furthermore, as the Government points out, the term “fundamentally alter” has been previously used in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). That decision construed section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally assisted or operated programs or activities. In Davis, the Court concluded that programs did not discriminate if they failed to make accommodations that would “fundamentally alter” the nature of the program. Id. at 409, 99 S.Ct. at 2368. The terms “reasonable modifications” and “fundamental alteration” are therefore not unconstitutionally vague.

4.Most Integrated Setting Appropriate

Title III requires covered entities to afford their goods and services to an individual with a disability “in the most integrated *583 setting appropriate to the needs of the individual.” 42 U.S.C. § 12182(b)(1)(B) (Supp. II 1990). The preamble to the title -III regulation provides two pages of examples and explanations illustrating the meaning of this provision. One example provides that

it would be a violation of this provision to require persons with mental disabilities to eat in the back room of a restaurant or to refuse to allow a person with a disability to full use of a health spa because of stereotypes about the person’s ability to participate.

28 C.F.R. pt. 26, app. B, at 581. The legislative history provides further illustration, noting that the “integrated settings” provision is intended to prevent segregation based on fears and stereotypes about persons with disabilities. H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. II, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 385 (“House Report, Pt. II”); see also id. pt. Ill, at 56-57 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 479-80 (“House report, Pt. III”). The term “most integrated setting appropriate,” as used in title III, is not unconstitutionally vague.

5. Undue Burden

Under title III, public accommodations are required to provide auxiliary aids in order to extend their services to persons with disabilities, unless to do so would pose an “undue burden” to the covered entity or would “fundamentally alter” the nature of its goods or services. 42 U.S.C. § 12182(b)(2)(A)(iii) (Supp. II 1990). The term “undue burden” is defined in the regulation as a “significant difficulty or expense.” 28 C.F.R. § 36.104, at 461 (1991) (definition of “undue burden”). The regulation lists factors for determining whether a particular action will create an undue burden. These are the same factors as those provided for assessing whether an action is “readily achievable.” Id. The preamble, however, clarifies that:

“[R]eadily achievable” is a lower standard than “undue burden” in that it requires a lower level of effort on the part of the public accommodation.... [A] public accommodation is not required to provide any particular aid or service that would result in either a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations offered or in an undue burden. Both of these statutory limitations are derived from case law under section 504 [of the Rehabilitation Act of 1973] and are to be applied on a case-by-case basis ...

Id., app. B, 576, 595 (discussing definition of “undue burden” in § 36.104). Furthermore, the regulation is supplemented by discussion in the Technical Assistance Manual, which provides explanations of both “undue burden” and “fundamental alteration.” See U.S. Depart, of Justice, The Americans with Disabilities Act — Title III Technical Assistance Manual at 27-28 (1992 & Supp.1993).

6. Full and Equal Enjoyment and Opportunity to Participate

Title Ill’s general prohibition against discrimination provides as follows:

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) (Supp. II 1990). Zahedi claims that the phrase “full and equal enjoyment” is impermissibly vague. However, the next subsection of the statute, entitled “Construction” enumerates categories of actions that constitute such discrimination. These categories include denying a person with a disability public accommodations, or providing accommodations not equal to that afforded to other individuals.

Furthermore, the legislative history explains that

[fjull and equal enjoyment does not encompass the notion that persons with disabilities must achieve the identical result or level of achievement of nondisabled persons, but does mean that persons with disabilities must be afforded equal opportunity to obtain the same result.

Senate Report at 60. Thus, the terms “full and equal enjoyment” are given ample operational definition, as are the specific subsections of this provision that Zahedi challenges. As the government argues, the prohibition *584 denying individuals with disabilities an “opportunity to participate in or benefit from” the goods or services of a covered entity clearly means that persons with disabilities may not be excluded from receiving the services of a place of public accommodation.

IV. Title III is Not Retroactive Legislation

Zahedi challenges the ADA on the grounds that it is retroactive legislation and therefore violates the Due Process Clause of the Fifth Amendment. Zahedi takes issue with the Government’s failure to distinguish Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885) and Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935). However, as the Government notes, the Court more recently addressed the issue of retroactivity in Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), reh’g denied, 358 U.S. 937, 79 S.Ct. 310, 3 L.Ed.2d 311 (1959). In that case, the Court rejected a due process challenge to a statute which directed the Federal Housing Administration (“FHA”) to insure mortgages only for strictly residential housing, rather than transient housing which had been previously included. The Court held that application of the statute to an existing apartment facility which no longer qualified for mortgages under the new law did not contravene the Due Process Clause. In holding that the amended statute was only prospective in effect the Court stated:

[F]ederal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it.

358 U.S. at 91, 79 S.Ct. at 146 (quoting Fleming v. Rhodes, 331 U.S. 100, 107, 67 S.Ct. 1140, 1144, 91 L.Ed. 1368 (1947)). See also United States v. Manufacturers Nat’l Bank, 363 U.S. 194, 200, 80 S.Ct. 1103, 1107, 4 L.Ed.2d 1158 (1960).

The fact that title III applies to existing places of public accommodation does not render the statute retroactive. Congress routinely acts to regulate existing businesses, programs, and structures, imposing new guidelines which reflect the changing social and environmental standards of our democratic system. The fact that such legislation affects existing entities does not insulate responsible parties from compliance with the law.

The relevant inquiry is whether the legislation imposes liability or penalty for conduct occurring prior to the effective date of the statute. “The determination of whether a statute’s application in a particular situation is prospective or retroactive depends upon whether the conduct that allegedly triggers the statute’s application occurs before or after the law’s effective date.” McAndrews v. Fleet Bank, 989 F.2d 13, 16 (1st Cir.1993); s