Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW ASHMANSKAS, United States Magistrate Judge. I. INTRODUCTION This is an action alleging violations of Title III of the Americans with Disabilities Act (“ADA”), 42 USC § 12101, et seq., at the “Rose Garden,” a multi-purpose indoor arena in Portland, Oregon. In an opinion filed on November 12, 1997, the parties’ cross-motions for summary judgment were granted in part and denied in part. Independent Living Resources v. Oregon Arena Corporation, 982 F.Supp. 698 (D.Or.1997). I reserved a ruling on dozens of additional issues. Id. Although most of the underlying facts in this ease are not seriously disputed, I set a court trial so the remaining issues could be decided without the limitations imposed by the summary judgment standard. On January 23-24, 1998, I heard testimony and arguments regarding those issues. A portion of the proceedings were conducted at the Rose Garden so the participants could view the premises and, where appropriate, test and measure the conditions in dispute. To simplify matters, I will issue two sets of Findings of Fact and Conclusions of Law. The present set will cover a number of miscellaneous issues, such as signage or the force needed to operate a particular fixture. The second set, to be filed separately, will discuss ticket sale policies, infilling and modified aisle seats. There also will be further proceedings to discuss remedial measures for some of the more complex issues (such as the distribution of wheelchair spaces and modifications to the executive suites). Oi’dinarily, findings of fact are segregated from conclusions of law, consistent with the admonition in FRCP 52(a). However, in view of the large number of issues and the dearth of disputed facts, I will depart from that organization here. Nevertheless, I will attempt to make clear when I am resolving a factual dispute. Most of the issues discussed in this opinion are identified in the document entitled “Resurvey of the Rose Garden Arena Complex: February 25-26, 1997” (“Resurvey”) which was attached as Exhibit D to Plaintiffs’ Answer to Defendant’s Submission in Response to Request from the Court (docket # 123). For simplicity, I will identify issues using the Resurvey Barrier numbers that plaintiffs assigned to each issue, e.g., (RS-17) or (RS-29), if applicable. Many of the alleged violations also are described in Plaintiffs’ Trial Ex. 101. II.DISCUSSION A. Issues That Have Been Resolved The parties agree that the following issues are no longer in dispute: 1. (RS-2) (protruding object hazard eliminated by bolting pedestal under protruding edge of reception counter in Rose Room); 2. (RS-4) (additional visual fire alarm was installed in Rose Room); 3. (RS-5.2) (tables in Rose Room modified to increase knee clearance for wheelchair users); 4. (RS-6) (pay telephones were adjusted to ensure handset is within reach of wheelchair users); 5. (RS-8) (protruding object hazard was eliminated by bolting pedestal under pro-trading edge of hostess counter in Stage 5 Lounge & Restaurant); 6. (RS-14) (position of grab bar was adjusted in standard stall in women’s rest room at Eaternity fast food bar); 7. (RS-17) (the court previously determined that the mobile auxiliary counters are outside the scope of the rules governing protruding object hazards); 8. (RS-18) (the fire extinguisher at level 100 outside elevator number five has been lowered so it is not a protruding object hazard); 9. (RS-20) (a coat hook has been mounted in the standard accessible toilet stall in the men’s toilet room at entry A-2); 10. (RS-22) (a coat hook has been mounted in the ambulatory accessible stall in the women’s toilet room at entry A-3/A-A, section 102); 11. (RS-24) (the counters at the garbage cans along the Concourse have been modified to provide a skirt for cane detection, thereby eliminating any protruding object hazard); 12. (RS-25) (signage for the assistive listening system has been modified to show the international symbol of access for hearing loss, and signs have been posted at additional locations in the arena); 13. (RS-27.1) (pay telephone near Panasonic totem at entry A-23 was lowered to within reach range for wheelchair users and additional forward approach telephones were installed); 14. (RS-27.4) (pay telephone near Panasonic totem at entry A-23 was modified so the handset is within reach range for wheelchair users); 15. (RS-29) (handrails on ramp to Garden Garage Stair # 7 from Arena Level 1 were modified to plaintiffs’ satisfaction); 16. (RS-33) (toilet paper dispenser in men’s staff employee locker toilet room was modified); 17. (RS-34) (fall-length mirror has been installed in men’s staff employee locker toilet room, mooting complaint that original mirror was mounted too high); 18. (RS-35) (trash can in unisex toilet room was modified so it does not block wheelchair access to paper towel dispenser); 19. (RS-36) (television monitor in press/media room has been modified so it is not a protruding object hazard); 20. (RS-37) (ice dispenser in press/media room was modified so control is within reach range of wheelchair users); 21. (RS-39) (hardware to accessible standard stall in visitor’s locker room has been lowered so it is within reach range for wheelchair users); 22. (RS-40) (wheelchair ramp providing access to basketball floor has been modified to plaintiffs’ satisfaction); 23. (RS-41) (defendant will ensure that extension cords do not obstruct accessible routes during times when the building is open to the public); 24. (RS-42 and 43) (wing guards were installed on drinking fountains to obviate protruding object hazard); 25. (RS-45) (coat hook installed in standard accessible stall in Performer Dressing Area “C”); 26. (RS-49) (television holder in Star Dressing Area “A” was modified to eliminate protruding object hazard); 27. (RS-50) (corner of lavatory vanity in Star Dressing Area “A” has been modified to meet minimum height requirement); 28. (RS-52) (plaintiffs have approved a sample portable ramp to be placed over cables and cords to eliminate obstruction for wheelchair users); 29. (RS-61) (door to dressing area in Suite 38 has been modified to eliminate opening that denied privacy to wheelchair users; similar modifications will be made to other suites which have that condition); 30. (RS-66) (visual alarms have been raised to eliminate protruding object hazard); 31. (RS-76) (directional signs were modified to eliminate protruding object hazard); 32. (RS-82) (relocated access aisle has been striped); 33. (RS-85) (overhead directional sign at stair in Garden Garage was lowered, mooting plaintiffs’ contention that letters should be larger); 34. (RS-87) (expansion joint covers have been modified to eliminate obstructions for wheelchair users; defendant will periodically inspect and repair those covers as needed); 35. (RS-90, 91, 92, 93, 94) (new accessible routes meeting minimum vertical clearance requirements have been designated for vans in parking garages); • 36. (RS-96) (sign obstructing accessible van route has been relocated); 37. (RS-97) (signs on Level 1 of Garden Garage have been raised so they are not blocked by parked vehicles); 38. (RS-99) (threshold at door leading from garage to elevator at PI level entrance to One Center Court has been modified to eliminate excess rise); 39. (RS-103) (curb ramp at elevator to Commons Restaurant was modified so it is flush with the landing); 40. (RS-104) (heated serving dishes at Stage 5 Restaurant are now within reach range for wheelchair users and defendant will train staff to ensure continued compliance); 41. (RS-105) (self-serve items at Carvery Club Pasta Bar are presently within reach range and defendant will train staff to ensure continued compliance); 42. (RS-106) (condiment dispensers on main concourse are now within reach range and defendant will train its staff to ensure continued compliance); 43. (RS-107) (the court previously determined that the mobile trash carts are outside the scope of the regulations governing protruding objects). B. Issues Still in Dispute: 1. (RS-1) The glass entry doors to the Rose Room require 15 pounds of force each to operate, which exceeds the 5 pound limit imposed by Standard 4.13.11(2)(b) for interior, non-fire rated doors. The court finds that it is technologically possible to design a building with glass doors that can be operated by motor using a push button without entirely destroying the door’s aesthetics. The court takes judicial notice that we have such doors in the new federal courthouse in Portland. The motor is concealed under the floor. Defendant could have incorporated similar technology into the design of the Rose Garden. Defendant has proposed to prop these doors open whenever the Rose Room is being used by the public. In theory, the doors would then function principally as ornamentation rather than as barriers and the amount of force required to operate them would be academic. The problem with defendant’s proposed solution is that the Rose Room must be accessible by wheelchair at all hours when the building is in use, not just when the room is open to the public at large, because the room must also be accessible to employees with disabilities who may be helping to prepare the room for an event or performing maintenance work. In addition, because of the circular floor plan of the building, traversing the Rose Room is the only direct route linking certain elements on that floor. Defendant’s proposal to prop the doors open only while the Rose Room is being used by the public therefore falls short of the mark. There are various ways defendant might remedy the violation. For instance, the doors might be removed, or permanently propped open, or modified to operate by motor, or replaced by doors requiring only five pounds of pressure to open. Within 30 days from the date of this opinion, defendant shall furnish the court with its proposed solution. 2. (RS-3) Plaintiffs contend that a counter in the Rose Room is a protruding object hazard because it projects 12 inches from the base at a height of 41 inches above the finished floor (“AFF”). Defendant has agreed to add a decorative skirt under the counter that can be detected using standard cane techniques. See ADAAG A4.4.1 and Fig. A4. Once that work is properly completed, this dispute will have been resolved. 3. (RS-5.1) Plaintiffs originally complained that the wheelchair-accessible portion of the bar in the Rose Room is too high, too narrow and does not provide enough knee room. Plaintiffs also argued that this location is unsuitable for use by patrons because it doubles as a flip-up counter top so employees can enter and leave the bar, and it is immediately adjacent to the cash register. Defendant responded by providing several accessible tables, which is permitted by Standard 5.2. However, plaintiffs also want the accessible tables reserved solely for use by wheelchair patrons. Defendant objects to such a policy, because it may mean turning other customers away even though those tables are not presently occupied by wheelchair users. Instead, defendant has proposed to place a placard on each accessible table which reads “PLEASE GIVE PRIORITY TO PATRONS WITH DISABILITIES UPON REQUEST.” Plaintiffs contend this is unacceptable because it puts wheelchair users in the position of having to evict other patrons from their tables, which can be intimidating and humiliating. There are analogous examples for both methods. On public transit here in Portland, as in most cities, there are signs asking patrons to yield certain seats to the elderly or persons with disabilities, but no absolute prohibition upon the use of those seats by other patrons. By contrast, “handicapped” parking spaces are reserved solely for qualifying motorists and fines are imposed upon violators. An obvious difference is that the driver of a parked vehicle is usually not present and may not return for several hours. The ambulatory motorist occupying the space may be unaware that the space is now needed by a person with disabilities. By contrast, on public transit the predicament is immediately apparent. In addition, on public transit there often is an operator present who can admonish a recalcitrant seat occupant, not to mention the peer pressure by fellow passengers. Again, those factors are unlikely to be present in a parking lot. The circumstances here more closely resemble the public transit model. If a table is needed for use by persons with disabilities, defendant has promised that its employees will be available to assist in relocating ambulatory patrons to another table. Plaintiffs understandably are not pleased at having to ask another patron to vacate a table. However, any resentment by ambulatory patrons would seemingly be no less if “reserved” tables were sitting vacant while other patrons waited vainly for an available table. The court also observes that (ordinarily) there is no rule which says that only persons with disabilities may use the accessible phones, toilet stalls, elevators and other facilities (though the court can envision possible exceptions in special circumstances, e.g., an elevator that ordinarily is not available for use by the general public.) The language of the regulations is also instructive. Standard 5.2 provides two options: either a portion of the main counter at least 60 inches long must be made accessible in accordance with Standard 4.32, or else “service shall be available at accessible tables within the same area.” There is nothing in the regulation to suggest that the accessible tables are to be used only by persons with disabilities. Likewise, if defendant chose to make a portion of the main counter accessible, Standard 5.2 does not prohibit ambulatory patrons from also using those portions of the counter. The court concludes that defendant’s proposed policy is a reasonable one. Wheelchair users shall have first priority for using the accessible tables, but in the absence of such demand the tables may also be used by other patrons. 4. (RS-7, 27.2, 27.3) Plaintiffs contends that there should be a directional sign at each pay phone indicating where a TDD/ TTY pay phone may be found elsewhere in the facility. Defendant responds that these signs are required only when there is a “bank” of phones, Standard 4.30.7(3), which means two or more phones. The court agrees with defendant’s interpretation of the regulation. For purposes of these regulations, a “bank consists of two or more adjacent public telephones, often installed as a unit.” Standard 4.1.3(17)(a). Defendant therefore is not legally compelled to install TDD/TTY directional signs in those locations in the arena where there is but one pay phone. Of course, there is nothing in the law that prohibits defendant from voluntarily installing additional TDD/TTY directional signs at individual pay phones as a courtesy to those patrons who may need to use a TDD/TTY phone. The court is concerned only with legal mínimums here. The owner of a public accommodation may, in its discretion, choose to exceed those mínimums. See ADAAG A4.1.3(17)(b) (encouraging public accommodations to voluntarily provide additional signage.) Plaintiffs also contend that certain telephones equipped with a volume control must be identified by special signs. Standard 4.30.7(2). The regulation provides that “[telephones required to have a volume control by [Standard] 4.1.3(17)(b) shall be identified by a sign containing a depiction of a telephone handset with radiating sound waves.” Apparently the parties dispute whether a volume control sign must be provided for every public telephone which is actually equipped with a volume control, or only for those telephones that are required by Standard 4.1.3(17)(b) to be equipped with a volume control. The regulation clearly specifies the latter. As a practical matter, however, there may be little point in equipping a phone with volume control but then not posting identifying signage. Nevertheless, that additional signage is not legally required. Finally, there appears to be a dispute over the size of the required signs. Standard 4.30.7(2) and (3) mandate that a specific pietogram be included in the sign. Standard 4.30.4 decrees that pictograms must be at least 6 inches high. However, defendant contends that 4.30.4 is not applicable in this circumstance. Standard 4.30.1 provides that “[sjignage required to be accessible by 4.1 shall comply with the applicable provisions of 4.30.” The term “accessible” is defined as a “site, building, facility, or portion thereof that complies with these guidelines.” Standard 3.5. That is a circular definition, which begs the question of what must be done to comply with the guidelines. Standard 4.1 offers little additional guidance. It contains more than two dozen subsections and it not clear just which subsection the drafters had in mind. Standard 4.30.7, which is the source of the-pietogram requirement, is not part of Standard 4.1. Defendant contends that Standard 4.1.3(16)(b) is controlling. That subsection requires that signs comply with Standards 4.30.1, 4.30.2, 4.30.3, and 4.30.5, but conspicuously omits Standard 4.30.4. However, Standard 4.1.3(17)(b), which is part of Standard 4.1, mandates that telephones comply with Standard 4.30.7, the Standard that requires pictograms. The analytical path thus leads back to where the inquiry started: does Standard 4.30.4 apply to pictograms that are required by Standard 4.30.7? Frankly, I have no idea, and if the court cannot determine what the applicable rule is, then it is hard pressed to find that defendant violated the rule. Accordingly, the court finds in favor of defendant on this item. In the future, the Access Board and DOJ need to do a better job of drafting these regulations. It is not enough that the drafters know what they meant to say; that intent must be clear to the reader as well. 5. (RS-9) The dispute here concerns employee access behind the bar at the Stage 5 Lounge/Restaurant. At the court’s request, the parties recently re-measured this entrance. There is 34 inches clear width from the floor up to 36-1/2 inches AFF. Above that height, the opening narrows to 30-1/2 inches (according to plaintiffs) or 31 inches (according to defendant). Pursuant to Standard 4.2.1, the “minimum clear width” at any point along a passageway must be 32 inches. The regulation does not specify the height at which that width is measured. Obviously, at some point the obstruction will be far enough above the ground that it will not interfere with passage, but 36 inches is roughly chest or shoulder high for a typical wheelchair user. See Fig. A3. That is not so high as to be immaterial. Defendant’s principal argument—one it has repeated on numerous occasions during this case—is that it is entitled to prevail because the dimensions of the passageway do not violate the recommendations contained in a 1996 advisory committee report that proposed numerous amendments to ADAAG. See ADAAG Federal Review Advisory Committee, Final Report: Recommendations for a New ADAAG (Sept. 30,1996) (which defendant wishfully refers to in its briefs as the “New ADAAG”). While the court agrees that ADAAG has many flaws and might benefit from a major overhaul, the amendments proposed in this “New ADAAG” have never been adopted by either the full Access Board or DOJ. Consequently, those recommendations are not controlling today, nor were they controlling when defendant designed and built the Rose Garden. Unless and until those recommendations are duly enacted into law, defendant is bound by the existing Title III Standards and must comply with them. Defendant may believe the existing law is wrong and ought to be changed, but defendant is pleading its case to the wrong branch of government. This court must enforce the law as it presently exists, not a proposed revision to that law which may (or may not) ever be enacted. Defendant also argues that the bar is a “work station” and therefore does not have to be accessible to wheelchair users. The court disagrees. Under the “work station” exception, qualifying areas need not be designed “to permit maneuvering within the work area” nor must they be equipped with accessible shelves. Standard 4.1.1(3), ADAAG A4.1.1(3). However, individuals with disabilities must nevertheless be able to approach, enter and exit these areas. Id. Therefore, the “work station” exception does not help defendant here. Judging by the photographs that were submitted, it will not be inordinately difficult or expensive to modify the “flip-up counter” to provide the required clear space. The court will require defendant to remedy this violation. 6. (RS-10) Plaintiffs contend that the counters mounted on columns at the Rotunda Bar are protruding object hazards. In the prior opinion, I rejected all of the defenses interposed by defendant. Independent Living, 982 F.Supp. at 781. However, defendant has not yet remedied this condition. Within 30 days from the date of this opinion, defendant shall furnish the court with its proposed solution. That likely will be some sort of decorative skirt mounted under the counter that can be detected by a cane (though there are other potential solutions as well and I do not mean to constrain defendant’s choice of remedies). 7. (RS-11) Plaintiffs contend that the end of the low section of the bar is a protruding object hazard. I agree. Defendant argues that the counter will not pose a hazard so long as there are bar stools in front of the counter, reasoning that a visually-impaired individual probing with a cane will detect the stool and not be injured by the counter. The fatal flaw in defendant’s argument is that the low section of the bar is specially designed to. be wheelchair accessible. There will not always be any bar stools in that location, and certainly not any permanent or semi-permanent bar stools since that would impede wheelchair access. Consequently, there is no need to decide whether this would otherwise be a permissible remedy under the ADA. None of defendant’s other arguments are persuasive. Within 30 days from the date of this opinion, defendant shall submit its proposed remedy, which likely will consist of a skirt to eliminate the protruding object hazard. 8. (RS-12.1 and 56) Plaintiffs originally asserted that the vertical skirts under the lavatories in the women’s toilet room at the Eaternity fast food bar, and in the new men’s and women’s toilets at the conference room on level 4, projected 1 1/2 inches into the minimum required knee clearance under the lavatories. Plaintiffs' subsequently expanded the scope of this grievance. Plaintiffs now contend that the design of the lavatory itself is flawed and provides insufficient knee clearance. Plaintiffs also assert that, based upon them limited inspection, the same defect likely exists in every accessible lavatory in the entire Rose Garden, but they have not been permitted to inspect every restroom in order to confirm those suspicions. The disagreement concerns the proper interpretation of Fig. 31 (which is cross-referenced to Standard 4.19.2). Fig. 31 depicts a gooseneck drain pipe protruding from the wall under the sink. The drawing notes indicate that this pipe may protrude from the wall a maximum of 6 inches at a height of not less than 9 inches. According to the affidavit of Robert Pike, the drain pipes from the lavatories at the Rose Garden extend 13 1/2 inches from the wall (including the 1/2 inch board that insulates the pipe against contact with a wheelchair user’s legs). Plaintiffs contend that this design violates the 6-inch maximum dimension depicted in Fig. 31. Plaintiffs also contend that the underside of the sink protrudes into the minimum required knee clearance. Defendant correctly notes that the lavatory depicted in Fig. 31 is designed so that its operating controls are nearly flush against the back wall on which the lavatory is mounted. The distance to the back wall, from the front edge of that model lavatory, is 17 inches. By contrast, the measurements submitted by the parties indicate that the lavatories at issue here have a different design. These lavatories are deeper than the model in Fig. 31. The distance from the front edge to the back wall is approximately 22 1/2 inches. The operating controls are mounted approximately 5 1/4 inches from the back wall on which the lavatory is mounted. Consequently, the centerline of the operating controls is approximately 17 1/4 inches from the front edge of the lavatory, which is roughly equivalent to the comparable measurement in Fig. 31. The purpose for requiring knee and toe clearance beneath the lavatory is so the user can reach the controls and the sink. The length of the drain pipe, per se, has no affect upon the accessibility of the lavatory. So long as sufficient knee and toe clearance are provided, as depicted in Fig. 31, and the operating controls are within reach, it doesn’t matter whether the drain pipe protrudes 3 inches from the wall or 30 inches. Indeed, the notes in Fig. 31 clearly state that the dimension shown (from the rim of the lavatory to the rear wall) is a minimum dimension only and can be greater. Accordingly, the court’s interpretation of Fig. 31 is that: (1) the underside of the lavatory rim must be at least 29 inches AFF; (2) there must be vertical (knee) clearance of at least 27 inches AFF for a distance of not less than 8 inches back from the edge of the rim; and (3) there must be vertical (toe) clearance of not less than 9 inches AFF at a distance between 11 and 17 inches back from the rim. Fig. 31 also depicts a tapering slope between 8 and 11 inches back from the edge of the rim, which ranges between 9 and 27 inches AFF. The upper surface of the lavatory may not exceed 34 inches AFF. Fig. 31, Standard 4.19.2. In addition, the operating controls must be within the forward reach of wheelchair users. Standards 4.27.2, 4.2.5, and Figs. 5 and 31. As a general rule, the forward reach distance of those operating controls may not exceed the sum of compliant knee and leg clearance plus 6 inches of compliant toe clearance (and in no event may exceed 25 inches in depth, and perhaps less). Id. Cf Fig. 32 (which implies a 19 inch limitation). Thus, if as in Fig. 31, there are 11 inches of compliant knee and leg clearance followed by 6 inches of compliant toe clearance, the operating controls may be located not more than 17 inches from the front edge of the lavatory. Based upon the dimensions furnished by the parties, the accessible lavatories at issue here (and possibly throughout the Rose Garden) are deficient in two respects. First, they do not provide knee clearance of at least 27 inches AFF for a distance of not less than 8 inches from the front edge of the lavatory. Defendant concedes that the vertical clearance is, at most, 26 3/8 inches when measured 8 inches from the front edge of the lavatory. I say “at most” because defendant also concedes that at the centerline of the sink there is a 2-inch wide overflow drain which drops below the mandatory 27 inches AFF at a distance of just 4 inches from the front edge of the lavatory and is only 25 1/2 inches AFF at a distance of 8 inches from the front edge. Defendant’s response is to trot out two standard (and by now somewhat threadbare) arguments. First, defendant argues that “[a]ll dimensions are subject to conventional building industry tolerances for field conditions.” Standard 3.2. That is true, but defendant has not furnished this court with evidence of what those conventional tolerances are for the particular construction work in question. “Dimensional tolerances” is not a mantra that, when chanted, automatically excuses all deviations from the Title III Standards. Rather, it is an affirmative defense upon which the defendant shoulders the burden of persuasion. Independent Living, 982 F.Supp. at 782. Defendant has not met its burden here. The closest defendant has come is an affidavit from John Salmen which attests that the “difference is very close to acceptable construction tolerance ...” That is a polite way of saying it is not within acceptable construction tolerances. The court agrees. The court is especially reluctant to accept the “dimensional tolerances” excuse in a situation where the regulations specify a minimum clearance that is necessary for that element to be usable by persons with disabilities. There is no apparent reason why defendant could not have complied with that requirement here had it exercised due care in the design and construction of this facility. Since defendant has not met its evidentia-ry burden, the court finds that the lavatories in question are in violation of Standard 4 .19.2 and Fig. 31 of the Title III regulations. Defendant also argues that the court should simply ignore the overflow drain. Defendant reasons that, because the drain is only two inches wide and is located in the middle of the sink, wheelchair users can maneuver themselves so the drain fits between their legs, which defendant asserts would still provide sufficient knee clearance. Regardless of the inherent merits (or lack thereof) to this argument, it is contrary to the existing Title III regulations. Defendant relies heavily upon the so-called “New ADAAG,” a report from an advisory committee that recommended numerous amendments to the existing Title III regulations. One recommendation was to ignore the overflow drain in determining knee clearance. Once again, defendant ignores the fact that these proposed amendments have never been adopted by either the full Access Board or DOJ. If and when those suggested amendments ever become law, defendant may have an argument. Until then, they are merely suggestions with no legal significance in this case. Defendant must comply with the law as it presently exists, not as defendant would like it someday to be. There appears to also be a second defect concerning these lavatories. Fig. 31 depicts a gradual tapering from the required 27 inch minimum knee clearance at a distance of 8 inches from the front edge of the lavatory, down to the required 9 inch minimum toe clearance at a distance of 11 inches from the front edge. That design reflects the fact that the toe area on a wheelchair is not directly below the knees, but extends out in front. See Figs. 31 and A3. The tapered slope provides some room for the lower legs. By contrast, the lavatories at the Rose Garden begin at less than the required 27 inch minimum knee clearance, at a distance of 9 inches from the front edge, and then drop immediately to a height of just 13 1/2 inches AFF, at a distance of only 9 inches from the front edge. There is no tapered slope that allows room for legs. This design exacerbates the problem caused by defendant’s failure to provide the required knee clearance. The court finds that the lavatories in question do not comply with the Title III regulations. It is not clear from this record whether the same defects are present in all accessible lavatories at the Rose Garden, or whether this is just an isolated instance. When the court travels to the Rose Garden to inspect signage (as discussed later in this opinion), it will also view a representative sampling of accessible lavatories. 9. (RS-12.2) The issue here is the amount of force, required to operate the water faucets on the lavatories in the women’s toilet room at the Eaternity fast food bar (and in some of the other toilets rooms on the same floor). The legal maximum is five pounds. Standards 4.19.5, 4.27.4. When plaintiffs tested the faucets, they obtained measurements that seemed to exceed the five pound upper limit. However, defendants argue — and the court finds — that the mirrors mounted over the lavatories on this floor obstruct the test equipment and preclude obtaining an accurate reading. Tests on similar faucets on other floors in the Rose Garden (without the overhanging mirror) were within the five pound limit. The court finds that the earlier test results were not reliable and that the amount of pressure required to operate the water faucets on this floor does not exceed five pounds of pressure, hence there is no ADA violation. 10. (RS-12.3) Plaintiffs complained that the soap dispenser in the women’s toilet room at the Eaternity fast food bar required seven to nine pounds of force to operate, when the legal maximum is five pounds. Standard 4.27.4. Defendant subsequently replaced all the soap dispensers in the Rose Garden with a new model. Defendant’s Memorandum in Support of Motion to Dismiss at 11. The parties recently tested the soap dispenser in this toilet room and determined that only three and one-half to four pounds of pressure were required to operate it on that particular day, which is within the legal limit. Consequently, there presently is no violation. All measurements of the pressure required to operate faucets, dispensers and similar equipment necessarily reflect only the present condition of that mechanism. In response to plaintiffs’ complaints, defendant tested, serviced, and where necessary replaced many of these mechanisms to ensure they comply with the requirements of the Title III Standards. Consequently, a finding that a device presently complies with the legal requirements does not preclude the possibility that there may have been a time when it did not. Likewise, defendant must periodically monitor and maintain all such equipment to ensure that it continues to comply with the Title III Standards. 28 CFR § 36.211. 11. (RS-55) Plaintiffs complained that seven pounds of force is required to operate the lavatory hardware in the men’s and women’s toilets outside the suites’ conference room on level 4. The legal maximum is five pounds. Standards 4.19.5, 4.27.4. During the trial the parties jointly tested these faucets and determined that they presently require five pounds of force to operate, which complies with the legal requirements. 12. (RS-12.4) Plaintiffs complain that seven to ten pounds of force is required to operate the feminine hygiene supplies vending machine in the women’s toilet room at the Eaternity fast food bar. The legal maximum is five pounds. Standard 4.27.4. This machine was viewed and demonstrated during the court trial. Although defendant has questioned the accuracy of plaintiffs’ measurement, this court specifically finds that the force required to operate this machine does in fact exceed the five pound limit. The court rejects defendant’s contention that the difficulty in measuring the required force precludes the court from finding a violation. While the court may be unable to determine the precise amount by which this machine exceeds the legal maximum, the court is satisfied that it does exceed that limit. The court also finds that this vending machine violates the requirement that controls and operating mechanisms “be operable with one hand, and shall not require tight grasping, pinching, or twisting of the wrist.” Id. The controls on this machine consist of a handle that must be vigorously twisted. Defendant originally insisted that it was unable to obtain a replacement vending machine that complies with the regulation. However, defendant now has admitted that it did not select or purchase the machine and “is not in possession of any records regarding efforts taken by the contractor to locate an ADA compliant machine ...” Defendant’s Submission in Response to the Court’s Request of February 20,1998, at 8. Consequently, there is no evidence that any efforts have been made to locate such a machine. On the other hand, plaintiffs concede they have “not identified sources for an ADA-compliant vending machine.” Plaintiffs’ Responses to the Court’s Additional Questions at 4. In other words, plaintiffs are insisting that defendant install an ADA-compliant machine but they have no idea where defendant could obtain one, while defendant denies that there is such a machine yet has made no effort to find one. If no compliant machine is available, then there are only two options: to overlook the violation, or to order that the vending machine be removed. Removing this machine will not help persons with disabilities to operate the machine, but will simply prevent everyone from using the machine. On the other hand, ignoring the violation provides no economic incentive for vending machine manufacturers to modify their product lines. The court is not yet persuaded that it is impossible to locate a replacement vending machine that complies with the ADA regulations. If true, it would mean either that the entire vending machine industry is in violation of the ADA (and that DOJ is ignoring those violations) or that the industry has ceased to manufacture vending machines. Accordingly, the court will require both parties to make a good faith effort to identify a suitable replacement machine and, within 30 days from the date of this opinion, to furnish the court with an affidavit detailing the results of that search. A final ruling on this issue will be deferred pending receipt of those affidavits. 13.(RS-13) Plaintiffs originally complained about the design of the door to the ambulatory toilet stall in the women’s toilet room at the Eaternity fast food bar. Defendant modified the door, which resolved one problem but created another. Plaintiffs now contend that the doorway to the stall is too narrow. Defendant has agreed to enlarge the doorway, which moots this issue. 14. (RS-15,113) Plaintiffs originally complained that the dining tables distributed around the arena concourse and patio areas did not provide sufficient knee clearance for wheelchair users. Defendant has modified some of those tables, but plaintiffs contend there are not enough modified tables distributed around the arena. The regulations require that five percent of the total number of tables be wheelchair accessible. Standards 4.1.3(18), 4.32. Defendant represents that it has complied with that requirement. The court viewed some of the tables during the recent trial. Athough no one physically counted all of the tables in the entire building, there appeared (in the court’s judgment) to be an adequate number of accessible tables to satisfy this regulation, distributed throughout the arena dining areas. Therefore, this issue has been resolved to the court’s satisfaction. 15. (RS-16) In an effort to make some concession stands wheelchair accessible, defendant has provided rickety “auxiliary” counters. Plaintiffs complain that these auxiliary counters are unstable and undersized. The court agrees with both contentions. The court finds that, as' designed, the counters are difficult to use and potentially dangerous. They are also only 33 1/2 inches long, when at least 36 inches is required. Standard 7.2(2)(ii). A related question is whether such “auxiliary counters” are permitted here at all. That depends upon whether these concession stands are governed by Standard 7.2(1) or 7.2(2). The former standard applies to “department stores and miscellaneous retail stores where counters have cash registers and are provided for sales or distribution of goods or services to the public_” The latter standard applies to “ticketing counters, teller stations in a bank, registration counters in hotels and motels, box office ticket counters, and other counters that may not have a cash register but at which goods or services are sold or distributed ...” The court concludes that if the concession stand is a permanent (or semi-permanent) structure, particularly one built-in to the arena, then it more closely resembles a counter in a retail store and is governed by Standard 7.2(1). In that case, auxiliary counters are not allowed in new construction. On the other hand, if the concession stand is a portable cart or similar design, then it is governed by Standard 7.2(2) and auxiliary counters are permitted. The stands viewed by the court were of the portable cart variety, hence auxiliary counters are permitted. However, those counters must comply with the dimensional requirements of Standard 7.2(2), and they must be reasonably sturdy and safe to use for their intended purpose. The counters viewed by the court fail both tests. Within 30 days from the date of this opinion, defendant shall submit a proposed alternative design or plan. 16. (RS-19) Plaintiffs complained that more than five pounds of force was required to operate the faucets in the men’s toilet room at Entry A-2. The parties tested the faucets during trial. Some faucets did exceed the five pound limit, but the designated “accessible” lavatory was below that maximum. The law does not require that every faucet comply with the five pound standard. Rather, “[i]f lavatories ... are provided [in a particular location], then at least one” must be accessible. Standard 4.22.6. Since the designated accessible lavatory complies with the applicable standard, the court finds no violation. 17. (RS-21 and 23) Plaintiffs complained that the ambulatory accessible toilet stall in the women’s toilet room at Entry A-3/A-4 (Section 102) has a clear width of 37 1/2 inches at the front and 37 3/4 inches at the back, when an exact dimension of 36 inches is required. Plaintiffs also complained that a second stall at the same location had a clear width ranging from 38 to 38 1/4 inches, which likewise exceeded the 36 inch dimension specified by Standard 4.22.4. The rationale for this requirement is explained in ADAAG A4.17.3: The 36 in (915 mm) width is necessary to achieve proper use of the grab bars; wider stalls would position the grab bars too far apart to be easily used and narrower stalls would position the grab bars too close to the water closet. The stalls were measured during trial. They ranged from 36 to 36 1/2 inches (it is not clear whether defendant adjusted the width during the intervening months in an attempt to alleviate plaintiffs’ concerns). For purposes of the ADA design standards, “[d]imensions that are not marked minimum or maximum are absolute, unless otherwise indicated in the text or captions.” Standard 3.1. Defendant argues that “[a]ll dimensions are subject to conventional building industry tolerances for field conditions.” Standard 3.2. That is true, but defendant has not furnished this court with any evidence of what those conventional tolerances are for the particular construction work in question. The court again emphasizes that “dimensional tolerances” is an affirmative defense upon which the defendant shoulders the burden of persuasion. Independent Living, 982 F.Supp. at 782. Since defendant has not met its evidentiary burden, the court finds that the stall does not comply with the exact dimension required by Standard 4.22.4 and, therefore, is in violation of the Title III regulations. 18. (RS-26) Plaintiffs contend that defendant has failed to provide enough as-sistive listening devices (“ALDs”) for the hearing-impaired. According to plaintiffs, Standard 4.1.3(19)(b) requires defendant to provide approximately 800 ALDs (4 percent of the arena’s seating capacity). Defendant responds that it has 52 ALDs on hand, but has never received more than 18 requests for a single event, and sees no reason why it should have to purchase 800 ALDs just so they can gather dust. The wisdom of the rule is something that defendant must debate with those who promulgated the rule (and have the authority to amend it). The question before this court is whether defendant has violated that regulation. The answer is no. The introductory sentence to Standard 4.1.3(19)(b) states that: This paragraph applies to assembly areas where audible communications are integral to the use of the space (e.g., concert and lecture halls, playhouses and movie theaters, meeting rooms, etc.) The court finds that the Rose Garden arena is not such a place. Rather, it is used primarily for sporting events {e.g., basketball, hockey), rock concerts (which already furnish ample sound amplification equipment of their own), and other activities such as monster truck exhibitions, ice shows, and the circus. It is unlikely that a Philharmonic orchestra or theater troupe will ever perform at the Rose Garden. The court can conceive of occasional events that might be staged at the Rose Garden in which audible communications arguably are an integral part of the event, e.g., a national political convention. However, there is little point in requiring defendant to purchase 800 ALDs based solely upon the mere possibility that someday there may be an event for which these ALDs would be needed. Indeed, with the pace of modern technology, those devices may be technologically obsolete before they are ever used. Instead, I will require defendant to have available at all times a sufficient number of ALDs (in good working condition) to meet the reasonably foreseeable demand for the events booked at the Rose Garden. The 52 units that defendant presently has in stock are adequate for now. If events are scheduled for which higher demand for ALDs can be anticipated, then defendant must arrange to obtain the additional ALDs that may be needed for such an event. 19. (RS-28 and 44) Plaintiffs contend that the centerlines of two water closets are 19 inches from the wall, when the mandatory dimension is 18 inches. Standard 4.17.3, Fig. 30a. As with similar disputes of this nature, defendant contends that the deviation is within “dimensional tolerances” but offers no evidence of what those permitted tolerances are. Since “dimensional tolerances” is an affirmative defense, the court finds that defendant has failed to carry its burden and the condition is a violation of the applicable regulation. 20. (RS-30) Plaintiffs complained that an “electrical box” (which was later determined to be a fire equipment box) mounted on the wall near the men’s staff employee lockers is a protruding object hazard. The court, having viewed the location, finds that the box is situated far enough away from the anticipated flow of pedestrian traffic that it does not pose a hazard and therefore is not subject to the requirements of Standard 4.1.1. 21. (RS-31) Plaintiffs complains that the bottom shelf of the employee lockers are situated at just 4 1/2 inches AFF and therefore are below the reach ranges established by Standard 4.25.3. Defendant responds that this is not a “shelf’ but rather the “floor” of the locker. As a practical matter, the distinction is meaningless, because there is no other “shelf’ in the locker. Regardless of whether it is denominated as a “shelf’ or the “floor,” it is where any belongings will be placed and therefore must be made accessible. Standards 4.1.3(12)(a), 4.25. Plaintiffs have asked that a bottom shelf be installed at a height of 9 inches AFF. That is a reasonable solution which is consistent with the governing regulations and I will require defendant to implement it. However, I will not require defendant to modify every employee locker. There is no reason why an employee ordinarily would need the ability to use every locker in the building. Accessible lockers can be reserved for those employees who require one. For now, one accessible locker in each location is sufficient. See Standard 4.1.3(12)(a) (“at least one of each type” of locker or storage area must be made accessible.) Defendant must modify additional lockers only if they are needed to accommodate demand from persons with disabilities. 22. (RS-32 and 38) Plaintiffs complain that the benches in the shower area in the men’s staff employee locker room and in the visiting team’s locker room have a gloss finish which is very slippery when wet, in violation of Standard 4.35.4 which requires such benches to have a “slip-resistant surface.” The parties have not cited — and the court has not found — any place in the Title III regulations where the term “slip-resistant surface” is defined, nor any explanation for how this characteristic is to be measured. ADAÁG A4.5.1 does provide some general information on the subject, but does not specify the minimum “static coefficient of friction” that is required to satisfy Standard 4.35.4. Nor have the parties furnished any objective measurements concerning the slip resistance of these benches, even after the court specifically requested such data if available. According to defendant’s expert, there is no consensus on the proper method for conducting such tests and he expressed doubts about the reliability of any test results that might be obtained. The court is left with the testimony of plaintiffs (who say the bench feels slippery to them) and defendant’s contrary opinion. Without a better record, and a more precise target against which the benches can be compared, the court has no principled basis for determining whether the present surface complies with Standard 4.35.4. Nor does the court have any idea what relief to order or how it would even determine whether defendant had complied with that order. The burden of proof on this issue lays with the plaintiffs. They have not established their case. If the Access Board and DOJ expect the courts to enforce this particular requirement, then they must do a better job of defining what the requirement is and how compliance is to be measured, whether by means of specific test equipment or perhaps by specifying a finish that meets or exceeds a commercially-recognized standard or industry certification (if one exists). 23. (RS-46 and 51) Plaintiffs complain that the accessible transfer shower stalls in Performer Dressing Area “C” and Star Dressing Area “A” are 36 x 42 inches, when they are supposed to be exactly 36 x 36 inches, and the shower heads are 28 inches and 27 inches, respectively, from the front edge of the stall, when that dimension is supposed to be exactly 18 inches. Standard 4.21.2, Figs. 35, 37. Plaintiffs have offered a cogent explanation of how these deviations materially affect the usability of the shower stall by persons with disabilities. The deviation clearly exceeds any “dimensional tolerances.” Defendant argues that its design is equal or superior to the design mandated by the ADA regulations. Perhaps so, but this court is ill-equipped to choose between competing shower stall designs. Defendant is free to plead its case to the Access Board and DOJ, but unless and until the existing Standard is revised defendant must comply with it. 24. (RS-47 and 48) Plaintiffs approved the sample modified coat rack which defendant demonstrated during the court trial. Defendant has agreed to furnish such coat racks to any performer requesting a modified coat rack. This issue has now been resolved. 25. (RS-53 and 54) Plaintiffs originally complained about the design of the platforms that would be used in the event a person in a wheelchair ever obtained a courtside seat. Defendant responded by making a number of modifications to the platform, mostly alterations to the handrails. However, plaintiffs still want the handrail extended twelve inches below the start of the ramp. The court will require that modification. Plaintiffs also want the handrail to bend so it is always parallel to the flat surface; the current design allows the handrail to rise an inch (from 21 to 22 inches) over a horizontal distance of 16 inches. The court finds the deviation de minimis under the facts of this particular ramp and will not order that modification. 26. (RS-57) The next batch of issues nominally pertains to “Suite 38,” since that is the particular suite that plaintiffs were permitted to inspect. However, since most of the suites have a similar design, the same conditions are likely to be present in other suites and the same modifications (if any) would be required. In addition, many of the issues within each suite are inter-related. Accordingly, if the court finds any defects in the existing suite configuration, it would be preferable to agree upon a comprehensive plan for remodeling the suites instead of attempting to remedy each violation individually. Plaintiffs first contend that the end of the counter in the kitchenette is a protruding object hazard. In response, defendants placed a lightweight plastic trash can (similar to that found in the typical kitchen) under the protruding edge. However, there is nothing to prevent this trash can from being moved. It is not fixed in place, nor is it heavy enough that it would not casually be moved. Consequently, that remedy is inadequate. Independent Living, 982 F.Supp. at 790-81. Defendant also contends that the counter end is not within the circulation path and, therefore, is not subject to the rules governing protruding object hazards. Defendant is correct in one sense: the counter is not intended to be within the circulation path. Pedestrians are supposed to make a 90 degree turn to the left just before “encountering” the -counter. As a practical matter, however, a visually-impaired person may not know to turn left and might continue walking head-on into the sharp corner of this protruding counter. That is why there needs to be á detectable barrier of some sort to warn of this imminent danger. The court finds that the counter end is a protruding object hazard in violation of Standard 4.4.1. 27. (RS-58.1) Plaintiffs contend that the faucet controls on the kitchenette sink in Suite 38 (and, by implication, in all suites at the Rose Garden) are not accessible to wheelchair users. Defendant first insists that the sink is not required to be accessible. The court disagrees. This is the only sink in the suite (other than the bathroom). Defendant has cited no legal authority or even a persuasive argument why this sink should not be accessible to a person using a wheelchair. Defendant’s alternative argument is that it has modified the sink (by removing the shelf under it). According to defendant, there is now sufficient clear floor space under the sink to permit a front approach and the controls are accessible. Plaintiffs disagree. The dispute concerns the proper interpretation of Fig. 31, which was discussed earlier in this opinion in connection with RS 12.1 and 56. As in the earlier discussion, this court is not especially concerned with the length of the drain pipe (which, by itself, has no affect upon the usability) so long as the sink otherwise complies with the applicable regulations and an individual in a wheelchair can use the sink and operate the controls. The clear floor space under the sink is only 28 inches wide, instead of the minimum 30 inches required by Standard 4.19.3 and Fig. 32. The upper surface is mounted at 36 inches AFF, which exceeds the maximum height (34 inches AFF) established by Standard 4.19.2. The drain pipe is only 19 inches AFF at a distance of 8 inches from the front edge of the lavatory, instead of the minimum 27 inches required by Standard 4.19.2 and Fig. 31. There is one additional factor that may be significant. The operating controls and the faucet on this sink are located not at the rear (as is typical) but rather along the side and closer to the front of the lavatory. This may reduce the reach required to use this fixture, which in turn may reduce the amount of under-counter clearance needed to operate this sink. Before ordering modifications that might cost defendant several hundred thousand dollars (assuming the same condition exists in every suite) the court would like more information on both the cost of the modification and whether these violations materially affect the ability of persons with disabilities to reach the controls and to use this lavatory. In addition, if defendant will need to make other modifications to the suites, it makes sense to address them all at one time. Therefore, the court finds that there is a violation, but will decide later what remedy to order. 28. (RS-58.2) Plaintiffs contend that the approach to the kitchenette sink in Suite 38 is too narrow. At the court’s request, the parties re-measured that approach and determined that it is 67 inches long. The approach is 39 inches wide at the beginning, narrows to 34 inches wide at the midpoint, and is only 30 1/2 inches wide by the time it reaches the sink. Plaintiffs contend that this violates Standard 4.3.3 and Fig. 1 because the width is less than 36 inches wide for a distance exceeding 24 inches. Standard 4.3.3 applies to accessible routes connecting buildings, facilities, elements and spaces. Standard 4.3.2(2). An “element” is an “architectural or mechanical component of a building, facility, space, or site, e.g., telephone, curb ramp, door, drinking fountain, seating, or water closet.” Standard 3.5. The sink in Suite 38 is an “element” for purposes of the Title III regulations. Accordingly, the passageway must comply with Standard 4 .3.3. Alternatively, the passageway to the sink might be viewed not as an “accessible route,” as plaintiffs have depicted it, but merely as an approach to the sink after the individual is already inside the room and is maneuvering within it. In that event, the more analogous rule may be Standard 4.2.4.1, which requires that such an approach be a minimum of 30 inches wide and 48 inches deep. See also Standard 9.2.2(7) (which plaintiffs have cited as the most analogous standard and which similarly requires compliance with Standard 4.2.4 rather than 4.3.3). At first glance, defendant might appear to be home free. However, when the approach to an object “is located in an alcove or otherwise confined on all or part of three sides,” as is the case with the kitchenette sink in Suite 38, then “additional maneuvering clearance shall be provided as shown in Fig. 4(d) and (e).” Standard 4.2.4.3. The applicable figure here is 4(e). Since the length of the confined approach to the sink exceeds 24 inches, the width of that approach cannot be less than 36 inches. Fig. 4(e). Regardless of whether this passageway to the sink is viewed as an “approach” or as part of an “accessible route,” the end result is the same. It cannot be less than 36 inches in width for a distance exceeding 24 inches. The passageway to the sink in Suite 38 (and by implication, in all other suites) does not comply with that standard and, consequently, is in violation of the Title III regulations. 29. (RS-58.3) Plaintiffs contend that accessible tables are not provided in the suites. Defendant states that it has not yet purchased such tables, but will do so if the court insists. While there does need to be an accessible table or counter, the court is concerned that the sample accessible tables used in the open expanses of the concourse and outdoor patios may be too bulky when placed in the confined space of the suites. The court will reserve a ruling on this issue to consider what options are available. Again, this issue should be addressed .within the context of an overall plan for making the suites accessible. 30. (RS-59) Plaintiffs complain that, although the abrasive underside of the lavatory in the toilet room in Suite 38 has been covered loosely with a foam pad, this installation is not permanent. They fear that wheelchair users might be injured when they roll underneath the sink (as they must do to use it). The court observes that hazards such as this, which are not visible, are a particular concern for wheelchair users because many have diminished sensitivity in their legs. They can be injured by sharp objects or hot pipes under the lavatory which they are unable to see or feel. For that reason, Standard 4.19.4 requires that there “be no sharp or abrasive surfaces under lavatories.” Defendant must ensure any repair is more than just temporary and periodically inspect these locations' to ensure continued compliance. 31. (RS-60) Plaintiffs complain that the toilet room in Suite 38 (and by implication, in the other suites as well) is too narrow and provides insufficient maneuvering clearance. In part, plaintiffs’ claim is predicated upon there being insufficient room to turn around. With limited exceptions not . ap