Full opinion text
OPINION ASHMANSKAS, United States Magistrate Judge: I. INTRODUCTION.........................................................705 II. MOTIONS FOR SUMMARY JUDGMENT...................................706 1. Pattern and Practice....................................................706 2. Mental State...........................................................707 3. Dispersal of Wheelchair Seating:.........................................707 A Legal Standards:...................................................708 B. Level 7:...........................................................710 C. Vertical and Horizontal Distributon:..................................714 D. Availability of Wheelchair Seating: ...................................717 (i) Is OAC Responsible for Infiling and Ticket Sale Policies?..........718 (ii) Do the Infilling and Ticket Sale Policies at the Rose Garden Violate the Title III Regulations?.............................719 (a) Season Tickets and Long-Term Contracts: ...................719 (b) Tickets for Individual Games:...............................722 (e) Tickets for Other Events: ..................................723 (d) Conclusion:...............................................724 4. Companion Seats:......................................................724 A. Interpretation of Standard 4.33.3 ..................................... 724 B. “Substantially Equivalent or Greater Access”..........................726 5. Modified Aisle Seats: ...................................................728 6. Line of Sight Over Standing Spectators:...................................732 A. Whether DOJ could Require that Wheelchair Users be Provided with a Line of Sight Over Standing Spectators............................732 B. Whether such a Requirement does Exist, and Whether it is Binding Upon this Defendant .............................................734 (i) Does Timing Matter?..........................................735 (ii) Was the 1994 TAM Supplement a Valid Interpretive Regulation?................................................736 (a) Did DOJ Adopt the Access Board Commentary?...............737 (b) Other Arguments Regarding Lines of Sight Over Standing Spectators..............................................742 (c) The Access Board’s Change of Heart........................743 • (d) Whether the ADA itself Provides an Independent Source of Authority for Requiring Lines of Sight Over Standing Spectators.......................'.......................743 C. Whether Defendant has any Defense to the Enforcement of a Requirement to Provide Lines of Sight over Standing Spectators.....747 D. Conclusion........................................................758 7. Executive Suites:.......................................................758 A. Are the Suites Subject to Title III of the ADA? ........................758 B. Do Plaintiffs have Standing to Maintain this Claim?.....................760 C. Do the Suites Comply with the ADA?.................................763 D. Visual Alarms in the Suites: .................:.......................764 8. Premises Leased to Concessionaires:......................................766 9. Camera Operator Areas:.................................................768 A. Are the Camera Positions Covered by Title III?........................769 B. Is there any Excuse for the Failure to Design these Camera Operator Positions to be Wheelchair Accessible? .....................769 III. DEFENDANT’S MOTION TO DISMISS ON GROUNDS OF MOOTNESS.....770 1. Whether Plaintiffs are Entitled to Recover Damages:........................771 2. Potential for Future Violations:..........................................774 3. Issues No Longer in Dispute:........................ 774 4. Conditions that Defendant Claims to have Redressed but Plaintiffs Disagree:............................................................776 5. Conditions that Defendant Denies are a Violation and has Not Modified.....779 A. Protruding Object Hazards: .........................................779 (i) Scope of Rule:................................................779 (ii) Protruding Objects in Parking Garages: .........................780 (iii) Placement of Planters, Waste Paper Baskets, and Similar Items Beneath Protruding Objects:............................780 (iv) Mobile Trash Cart:............................................781 (v) Counters on Self-Service Food Carts: ...........................781 (vi) Counters Mounted on Columns:................................■. 781 (vii) Baby-Changing Areas:........................................782 (viii) Protruding Objects Improperly Mounted Below 80 Inches AFF:........................................ 782 (ix)Visual Alarms Improperly Mounted Above 80 Inches AFF:.........783 B. The Remaining 72 Issues:...........................................783 IV. MISCELLANEOUS MOTIONS ... .■.........................................784 V. CONCLUSION .!........................... ..............................785 I. INTRODUCTION ba 1990, Congress enacted the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The purpose of this legislation was to eliminate discrimination against individuals with disabilities, 42 U.S.C. § 12101(b). To date, most ADA litigation has focused upon Title I, which governs the duties that the ADA imposes upon employers. The instant action concerns the obligations that Title III of the ADA imposes upon those who construct and operate public accommodations such as indoor arenas. The cornerstone of Title III is 42 U.S.C. § 12182(a), which mandates that persons with a disability receive the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ...” The locus of this action is the “Rose Garden,” a multi-purpose indoor arena in Portland, Oregon. The Rose Garden was designed for first occupancy after January 26, 1993, and the last building permit, or permit extension, was certified after January 26, 1992. Consequently, the Rose Garden is subject to the rules governing “new construction.” 42 U.S.C. § 12183(a)(1); 28 CFR § 36.401(a)(2). The principal tenants of the Rose Garden are the Portland Trail Blazers NBA basketball team and the Portland Winter Hawks of the Western Hockey League. The arena also is used for a wide variety of other events, including ice shows, concerts, soccer, indoor football, and the circus. Plaintiffs contend that numerous features of the Rose Garden’s construction, design, and operation violate the ADA as well as ORS 30.675 and ORS 659.425, the parallel state laws forbidding discrimination against persons with a disability. The plaintiffs in this action are Robert Pike, a Portland attorney with a disability which requires that he use a wheelchair, and Independent Living Resources (“ILR”), a non-profit corporation “organized ... for the purpose of promoting the rights and needs of persons with disabilities for full inclusion and equal access in all aspects of life and providing education, training, and independent living services to persons with disabilities.” Complaint ¶ 5. The defendant is the Oregon Arena Corporation (“OAC”), a private company that built, owns, and operates the Rose Garden arena. The United States Department of Justice (“DOJ”) has participated in these proceedings as amicus curiae. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(e). This court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. Presently before the court are plaintiffs’ ■ motion (# 36) for partial summary judgment, defendant’s motion (#45-1) to dismiss portions of the case as moot, defendant’s cross-motions (# 45-2 and # 62) for partial summary judgment, defendant’s motion (# 42) to bar the testimony of plaintiffs’ experts and to strike their report, defendant’s motion (# 59) to compel plaintiffs’ expert James Terry to answer certain questions posed during deposition, defendant’s motion (# 129) to strike plaintiffs’ supplemental concise statement of facts or individual paragraphs thereof, and plaintiffs’ motion (# 135) to strike the affidavits of John Salmen, William Crockett, and Teresa Jacubowski. II. MOTIONS FOR SUMMARY JUDGMENT 1. Pattern and Practice Plaintiffs have asked the court to rule “that there is a pattern of ADA violations in the Rose Garden Arena ...” Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment at 20. However, the existence of a “pattern” or practice of violations typically is significant only in an action commenced by the United States Attorney General. See 42 U.S.C. § 12188(b)(1)(B); 28 CFR § 36.503; Woolfolk v. Duncan 872 F.Supp. 1381, 1391 (E.D.Pa.1995). In an action by a private party for violation of Title III of the ADA, this court may award only injunctive relief, not damages. 42 U.S.C. § 12188; 42 U.S.C. § 2000a-3(a). For that reason, in an action by a private” party alleging a violation of Title III of the ADA, the existence of a “pattern or practice” of discrimination is relevant only in limited circumstances, e.g., to establish that the action is not moot, or that the plaintiff has standing, or that injunctive relief should be ordered because the violation is likely to recur. Cf Atakpa v. Perimeter OB-GYN Associates, 912 F.Supp. 1566, 1573 (N.D.Ga.1994) (dismissing ADA claim for lack of standing because the plaintiff did not allege that he would again be subjected to the same illegal practice); Hoepfl v. Barlow, 906 F.Supp. 317 (E.D.Va.1995) (dismissing action because there was no evidence that plaintiff would again be subject to the same violation). A pattern and practice of violations may also be relevant if the court is exercising its equitable discretion in fashioning a remedy for a violation of Title III. Cf. Paralyzed Veterans of America v. D.C. Arena, LP, 117 F.3d 579, 589 (D.C.Cir.1997) (federal court may exercise some discretion in deciding what equitable relief to award for violations of Title III of the ADA). For now, this court declines to decide whether there has been a “pattern” of ADA violations at the Rose Garden. Instead, the court will consider only whether a particular condition violates the ADA 2. Mental State: The court also declines plaintiffs’ invitation to make findings regarding defendant’s mental state, i.e., whether the alleged violations were committed intentionally, negligently, or innocently. With limited exceptions, the defendant’s mental state has little bearing upon whether the Rose Garden complies with the requirements of Title III of the ADA, at least in an action commenced by a private party. Cf. 42 U.S.C. § 12188(b)(5); 28 CFR § 36.504(d) (“good faith” is a relevant consideration when imposing civil penalties in an action brought by the Attorney General). Either the Rose Garden complies with the ADA, or it does not. The court may consider defendant’s good or bad faith when deciding what relief to grant in the event a violation is found. At times I also will discuss the decisions that led to the present state of affairs if they shed light on the reasons why a particular design was selected and whether it would have been possible for defendant to have more fully complied with the ADA. Defendant’s mental state may also be relevant to the extent defendant contends that it detrimentally relied upon an interpretation of the ADA regulations prior to the one presently advocated by DOJ. 3. Dispersal of Wheelchair Seating: In drafting Title III of the ADA, Congress painted with a broad brush and then directed the Attorney General to promulgate regulations to implement the law. 42 U.S.C. § 12186(b). Those regulations were to include design standards, which must be “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board,” commonly referred to as the “Access Board.” 42 U.S.C. § 12186(c). The guidelines issued by the Access Board are denominated the “ADA Accessibility Guidelines” (“ADAAG.”) The design standards enacted by the Attorney General are identical to the ADAAGs, but are denominated as “Standards.” Despite the technical distinction, the two terms often are used interchangeably. Standard 4.1.3(19) specifies the number of wheelchair spaces that must be provided in an “assembly area” such as a stadium, indoor arena, or theater. For assembly areas with a seating capacity over 500, the applicable formula is “one percent plus one,” meaning the number of wheelchair spaces must be equal to one percent of the total seating capacity (plus one additional wheelchair space.) The seating capacity of the Rose Garden is approximately 19,044, so there must be 191 wheelchair spaces (one percent of 19,044, plus one.) The parties agree that — at least on paper — there are 191 wheelchair spaces at the Rose Garden. However, plaintiffs contend that many of those spaces exist solely on paper. Plaintiffs also contend that the wheelchair spaces are improperly coneentrat-ed in “wheelchair ghettos” in comparatively undesirable locations of the arena. Plaintiffs’ Reply Memo in Support of Summary Judgment at 11. A. Legal Standards: “Providing services in the most integrated setting is a fundamental principle of the ADA.” H.R.Rep. No. 101-485(11) at 102, reprinted at 1990 U.S.C.C.A.N. 303, 385. See also H.R.Rep. No. 101-485(111) at 56, reprinted at 1990 U.S.C.C.A.N. 445, 479. To implement that purpose, DOJ has promulgated Standard 4.33.3, which provides that: 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. DOJ interprets Standard 4.33.3 to require both vertical and horizontal dispersal, ie., in large arenas and stadiums such as the Rose Garden the wheelchair locations must be distributed in a manner that approximates the overall distribution of seats in the facility. By contrast, defendant contends that it is enough to provide at least some wheelchair spaces in each ticket price category. DOJ’s interpretation of the dispersal requirement in Standard 4.33.3 is consistent with the language of the regulation and the overall objectives of Title III of the ADA, and will be enforced by this court. Whatever merit there might be to defendant’s argument in a smaller facility — a question I do not decide today — that argument cannot carry the day in a large arena such as the Rose Garden. I agree that wheelchair spaces ordinarily must be available in each ticket price category. However, that by itself will not always be enough to completely satisfy the requirement in Standard 4.33.3 that in large assembly areas wheelchair spaces must be an integral part of the seating plan and be dispersed so as to provide wheelchair users with a choice of sightlines and ticket prices comparable to those available to the general public. Without a requirement for horizontal and vertical dispersal, an arena operator could simply designate a few token wheelchair seats in the better seating areas, and duster the majority of wheelchair seats in the last row or in other undesirable locations. That is contrary to the Congressional intent in enacting Title III of the ADA. Cf. Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 950 F.Supp. 393, 398, 404 (D.D.C.1996) (design by which wheelchair spaces were “ghettoized in the two end zones with only a few in the front rows and almost none in the center court sections” did not comply with dispersal requirements of Standard 4.33.3), aff'd, 117 F.3d 579. The ADA’s dispersal requirements also could be circumvented merely by adjusting ticket prices for specific groups of seats in the same manner that electoral districts have long been subject to gerrymandering. Such tactics undoubtedly would be challenged by groups such as plaintiffs, and the courts would then be asked to decide the validity of the ticket pricing plans for each basketball or hockey team in the nation. As fascinating a task as that might be, it would require the courts to intervene in decisions that are better left in the hands of arena operators. I therefore reject defendant’s contention that an arena operator satisfies its ADA obligations as a matter of law merely by providing some unspecified Humber of wheelchair spaces in each price category. While absolute homogeneity is usually neither feasible nor required — since wheelchair users cannot navigate stairways or the narrow passage leading to a seat in the middle of a row— neither may the arena operator relegate most wheelchair users to the dark corners of the arena. Rather, in large arenas such as the Rose Garden, the wheelchair locations must be distributed in a manner that roughly approximates the overall distribution of seats in the arena. Cf. Paralyzed Veterans, 950 F.Supp. at 402 (wheelchair spaces must be “dispersed throughout the bowl”) and at 404 (“Dispersal requires a choice of various seating areas, good and bad, expensive and inexpensive, which generally matches those of ambulatory spectators” and “there must be spaces scattered throughout a sufficiently representative number of sections in the seating bowl to provide comparable choices.”) Plaintiffs contend that the wheelchair locations at the Rose Garden are not evenly distributed around the arena, but instead are unevenly clustered on Level 7 and in the corners of the end zones, and that most of the wheelchair spaces exist only on paper. I will address each of those complaints in turn. B. Level 7: The original design for the Rose Garden did not contemplate siting wheelchair spaces on Level 7. There was to be — and still is — no permanent seating on Level 7. Rather, there is some mechanical equipment, facilities for the media, and a fairly narrow concrete walkway high above the arena that was earmarked as a possible overflow area for standing room only crowds. A seating plan dated June 18, 1993, listed “117 standing and 117 temporary seating at Level 7.” Another seating plan, dated July 8, 1992, indicated that — in lieu of some of that standing and temporary seating — Level 7 also would serve as a “hockey press/NBA overflow press” area, which means Level 7 actually was intended to accommodate even less than 234 patrons. The decision to site 33 wheelchair spaces on Level 7 was born of desperation, after defendant realized that its existing wheelchair seating plan did not comply with ADA requirements. Standard 4.33.3 mandates the provision of a seat for ah ambulatory companion which shall be located “next to” the wheelchair space. DOJ has interpreted Standard 4.33.3 to require that the companion seat be side-by-side with the wheelchair space, and not in a different row of seats. However, defendant’s architect — the firm of Ellerbe Becket, Inc.-designed the Rose Garden so that the wheelchair spaces would be in one row, on a concrete slab, and the ambulatory companions would sit in another row in front or behind. That clearly is not the design that is contemplated by Standard 4.33.3. The rationale underlying the original front-to-back design is not difficult to discern. Defendant and Ellerbe Becket determined that if a companion seat was provided side-by-side with each wheelchair space, it would result in a substantial decrease in the seating capacity of the Rose Garden — a loss of 790 seats, according to defendant’s own estimate made in early 1992. See, e.g., Letter from Ellerbe Becket to Robert Collier, dated Feb. 5,1992. That is because the square footage reserved for wheelchair users would have to be significantly increased in order to also provide room for their companions. On or about February 5, 1992, Ellerbe Becket and defendant chose the front-to-back design over the side-to-side design, in order to gain (or to avoid the loss of) 790 ambulatory seats. Defendant and Ellerbe Becket were aware that the disabled community was interpreting Standard 4.33.3 to require a side-to-side design; however, Ellerbe Becket assured defendant that this was something “that the disabled community always asks for but does not get.” Collier Depo. at 205. Defendant’s senior project manager, Bob Collier, testified that he did not consult with the disabled community regarding the placement of the companion seat. Rather, We were told it was not a case of [what the disabled community] wanted. It was a case of what was required by law. And we were told at the time by Ellerbe that [what] was required was option one. And so we said, “Well, if that’s what is required then that’s — we can’t voluntarily lose this many seats.” Collier Depo. at 111. The correct placement of the companion seat was one of the concerns that Ellerbe Becket raised in a letter to defendant dated March 18, 1993. Ellerbe Becket warned defendant that it was proceeding on the assumption that the companion seat did not have to be side-to-side, but that there were other possible interpretations of the law. El-lerbe Becket urged defendant to seek legal counsel regarding that issue. Defendant chose not to do so. Collier Depo. at 131; Crockett Depo. at 104-05. On July 15, 1993, Gordon Wood sent a draft “ADA Client Letter” to Ellerbe Becket’s project managers. The letter was a model for a letter that each project manager was to send to his or her respective clients, if they had not- done so already. In that letter, the client was to be advised that DOJ had recently reviewed the design for a project that Ellerbe Becket was designing and had expressed the agency’s views on various issues. Among other things, the client was to be cautioned that DOJ has “interpreted the term ‘next to’ to mean side-by-side with the wheelchair location, not just in close proximity, in front of, or behind.” The client was also to be told that: This is the first time we have received an opinion from the Dept, of Justice. Even though the opinions of the four individuals who reviewed the other project do not carry the force of law, since the Department is mandated by the law to be the enforcement agency, we feel it is prudent to respect their opinion absent contrary results from a court____ [W]e recommend that you have legal counsel review the law and the approach to compliance followed on the project. The record does not disclose whether defendant actually received a copy of this letter, though on its face the letter was intended to be disseminated to clients such as defendant. In any event, Ellerbe Becket was defendant’s agent -with regard to the design of the Rose Garden. The information within this letter falls squarely within the subject matter of the agency, on a matter of obvious importance to the principal. Under longstanding principles of agency law, Ellerbe Becket’s knowledge regarding DOJ’s interpretation of the ADA standards is properly imputed to defendant as Ellerbe Becket’s principal. At some time prior to July 15, 1993, Ellerbe Becket knew the back-to-front design for the companion seats was contrary to DOJ’s interpretation of Standard 4.33,3. Nonetheless, defendant and Ellerbe Becket did not alter their design for the Rose Garden. In March 1994, Ellerbe Becket told defendant that the companion seats must be side-by-side with the wheelchair seating. In several angry letters, defendant asserted that this was the first time it had learned of DOJ’s interpretation of the rule, and accused Ellerbe Becket of concealing its knowledge of that requirement. Ellerbe Becket responded that its knowledge regarding DOJ’s interpretation of the ADA was confidential and could not be disclosed to Ellerbe Becket’s clients. Regardless of who was responsible, the decision that companion seats had to be side-to-side resulted in an immediate crisis. Fewer wheelchairs could now be accommodated within each designated wheelchair area. As a result, defendant was short by as many as 80 wheelchair spaces. Defendant could designate additional wheelchair locations within the primary seating bowls, but that would mean the loss of approximately 12 regular seats for each additional wheelchair space created. Collier Depo. at 121. To minimize the loss of standard seats, defendant designated the concrete walkway on Level 7 as a wheelchair seating area and thereby “found” 38 new wheelchair/eompanion pairs. Collier Depo. at 120; Letter from Allison to Collier (Feb. 25,1994.) Defendant has attempted to characterize Level 7 as an “integral” part of the Rose Garden seating plan. It is not. The designation of 33 wheelchair spaces on Level 7 of the Rose Garden makes a mockery of the ADA’s dispersal requirements. Level 7 is isolated from the main seating bowl, and primarily houses mechanical equipment and an overflow press area. There are no fixed seats on Level 7, nor were any ever planned. While there was some talk of using Level 7 as an overflow area, Level 7 was never designed to accommodate 3,300 portable seats or standing patrons, which is the number that would be required to justify 33 wheelchair spaces based upon a ratio of one wheelchair space for every 100 standard seats. Rather, the maximum occupancy that was projected for Level 7- — even in its capacity as an overflow area — was 234 spectators (117 standing, and 117 seated in folding chairs). Data furnished by defendants indicates that — apart from the 33 wheelchair locations and 33 companion seats — there are just 16 ambulatory seats on Level 7 (not counting any infilling that may occur if the wheelchair spaces are not sold). Clearly this is not what was intended by the requirement that wheelchair spaces must be an integral part of the overall seating plan. Defendant is entitled to credit for one or two wheelchair spaces on Level 7, based upon the number of ambulatory patrons that potentially can be accommodated on that level. Indeed, to the extent ambulatory seating is available on Level 7, defendant is required to provide a proportional number of wheelchair spaces on that level. The problem is not that defendant has provided any wheelchair spaces on Level 7, but rather that defendant has placed a disproportionate percentage of the total number of wheelchair spaces on that level, while failing to provide a sufficient number of wheelchair spaces in other parts of the arena. During the remedial phase of this case, the court will entertain any arguments that defendant may have for crediting a few additional wheelchair spaces on Level 7 in addition to that to which defendant would be entitled by a strictly proportional calculation based upon the number of ambulatory seats on that level. However, the court cannot envision any scenario by which defendant would be entitled to credit for 33 wheelchair spaces on Level 7, or anywhere close to that number. The placement of 33 wheelchair spaces on Level 7 simply cannot be reconciled with the dispersal requirements of Standard 4.33.3. Defendant in essence has created a “wheelchair ghetto” (to use plaintiffs’ terminology), consigning wheelchair users to a special floor in the proverbial “nosebleed” section so that defendant may maximize the number of ambulatory seats in the more desirable locations in the Rose Garden. This is precisely the sort of discrimination that Title III was intended to abolish. Of course, there is nothing to prevent defendant from providing more wheelchair locations than the law requires. For that reason, defendant may continue to provide 33 wheelchair spaces on Level 7, if it desires. However, only a fraction of those spaces will be credited towards compliance with the requirement that defendant provide one wheelchair space for every one hundred ambulatory seats throughout the entire arena. In addition, wheelchair users may not be relegated to Level 7, but must be provided a full range of seating options in all areas of the arena. I will not decide today precisely how many Level 7 wheelchair spaces will be credited towards the one percent requirement, or what remedy I will order to redress this violation. I determine only that the placement of 33 wheelchair spaces on Level 7 violates the dispersal requirements of Standard 4.33.3, and that — after subtracting the excess spaces on Level 7 — the arena as a whole violates the “one percent plus one” requirement contained in Standard 4.1.3(19). Defendant argues that the one percent requirement should not be enforced, since present usage patterns indicate that comparatively few wheelchair users attend Rose Garden events. Plaintiffs respond that the low attendance is the result of the poor sight-lines from wheelchair spaces; why should wheelchair users pay $65 to watch the back of the person in the next row? An additional consideration is that the arenas being built today should still be in service twenty or thirty years from now, during which time the demand for wheelchair spaces may well increase as the “baby boomer” generation ages and as improvements in wheelchair-fiiendly modes of transportation permit more wheelchair users to readily attend public events. It is far easier (and less costly) to design arenas with extra wheelchair capacity, some of which can be in-filled if not presently needed, than to belatedly create new wheelchair capacity if demand increases in the future. See H.R.Rep. No. 101-485(111) at 60, reprinted at 1990 U.S.C.C.A.N. 445, 483 (“Because it costs far less to incorporate accessible design into the planning and construction of new buildings and of alterations, [as compared to retrofitting existing structures], a higher standard of ‘readily accessible to and usable by1 persons with disabilities has been, adopted in the ADA for new construction and alterations.”) In any event, this court did not establish the one percent requirement, and defendant has cited no authority that this court has any discretion to waive that requirement. Consequently, defendant’s failure to comply with the one percent rule is a violation of Standard 4.1.3(19). ■ Defendant also points to a report by the “ADAAG Review Federal Advisory Committee” that recommends a reduction in the number of required wheelchair spaces. However, this recommendation does not have the force of law. Rather, it is the report of an advisory committee to the Access Board. Even if the Access Board eventually adopts that recommendation, it would then be subject to the notice and comment requirements of the APA. Any change in the law may also require approval by DOJ. The advisory committee report may have some persuasive value, but it does not displace settled law that expressly mandates a “one percent plus one” formula for provision of wheelchair spaces in large arenas. Finally, defendant contends that it placed the 33 wheelchair spaces on Level 7 at the express request of the disabled community. That is not a valid excuse for ignoring the requirements of the Title III regulations. The regulations establish a national standard for minimum levels of accessibility in all new facilities. As a general rule, those designing or operating public accommodations are not free to pick and choose which of these legal requirements to follow, and which to ignore. In addition, thé record offers no support for defendant’s contention that the 33 wheelchair spaces were placed on Level 7 at the request of the disabled community. The documents cited by defendant — hearsay minutes of meetings prepared by defendant, most likely with an eye towards litigation and, thus, of dubious evidentiary value — reflect only that members of the disabled community recommended that defendant voluntarily provide wheelchair seating in excess of the “one percent plus one” required by Standard 4.1.3(19). There may have been some discussion of placing wheelchairs on Level 7, but only in the context of an emergency overflow wheelchair area to be used for special events when more wheelchair users might attend than could be accommodated by the everyday wheelchair seating. There is no evidence that the disabled community suggested that a substantial percentage of the wheelchair seating required to satisfy the one percent requirement also be placed on Level 7. Moreover, those minutes are from community meetings that occurred more than two years before defendant belatedly decided to place 33 wheelchair spaces on Level 7. Furthermore, as discussed elsewhere in this opinion, other contemporaneous documents and the deposition testimony of defendant’s own employees establish that the sole reason for placing 33 wheelchair spaces on Level 7 was to avoid placing wheelchairs in the more desirable seating locations. In addition, defendant’s senior project manager, Bob Collier, testified during deposition that defendant was not concerned with what representatives of the disabled community wanted, but was concerned only with satisfying the minimum requirements of the ADA. Collier Depo. at 111, 137-38, 205. His testimony belies defendant’s eleventh hour contention that it placed a large percentage of wheelchair seating on Level 7 at the request of the disabled community. There is no genuine factual dispute. Plaintiffs are entitled to partial summary judgment as a matter of law on the question of whether the concentration of so many wheelchair spaces on Level 7 violates the requirements Standard 4.33.3 and whether, after subtracting the excess spaces on Level 7, the arena as a whole violates the “one percent plus one” requirement mandated by Standard 4.1.3(19). C. Vertical and Horizontal Distribution: Plaintiffs also contend that the wheelchair seating is clustered in the corners of the end zones, which they deem to be inferior seats, and that the wheelchair seating is not distributed on each level of the arena in proportion to the total seating on that level. Defendant concedes that the Rose Garden’s wheelchair seating is not uniformly distributed, but contends' that exact proportionality is not required. However, the present scheme is a far cry from exact or even rough proportionality. The record indicates that 124 of the Rose Garden’s 191 wheelchair spaces: — or 65 percent — are located in the corners of the end zone. Another 17 percent (33 of 191) of the wheelchair spaces are located on Level 7. Together, more than 82 percent of the Rose Garden’s wheelchair spaces are clustered in those locations. Just 18 percent of the wheelchair spaces are distributed throughout the remainder of the arena. The numbers become even more lopsided after omitting wheelchair spaces that exist solely on paper because those spaces have been infilled with conventional seats (which will be discussed later in this opinion.) There are no wheelchair locations at all behind the goal or basket; if one draws an imaginary line extending the sidelines of the basketball court up the seating bowl as far as the roof, there is not a single wheelchair location between the sidelines. There also are comparatively few wheelchair locations at mid-court or anywhere along the sidelines, and — as will be discussed below — most, if not all, of those wheelchair locations exist only on paper. The undisputed evidence suggests that the clustering of wheelchair seating in the corners of the end zone resulted, in large part, from defendant’s efforts to create approximately 80 additional wheelchair spaces after learning that the existing design for the companion seats violated the ADA. The evidence also shows that the corners of the end zone were chosen as the site for the additional wheelchair locations because defendant did not want to place wheelchairs in the more desirable seating areas. A memorandum dated March 22, 1994, from defendant’s chief project manager, Bob Collier, to other senior project managers, listed several options for locating additional wheelchair seats at the Rose Garden. One of those options was to install wheelchair seats in place of a camera area on one side of center court, and in place of a comparable row of seats on the other side of center court. This option had been recommended in a March 15, 1994, memorandum to defendant from Ellerbe Becket, which concluded that the revision “should be acceptable to the NBA.” However, in his March 22 memorandum, Collier recommended that defendant not “pursue this revision, as it reduces our ability to accommodate press adequately, as well as removes prime seats from the base mix.” (emphasis added). On March 29,1994, Ellerbe Becket wrote Collier: At your direction, we have not included the previously suggested revisions to seating areas on the west side of the court at Level Two. This decision tends to locate a greater majority of wheelchair positions in “end zones,” which may not be viewed favorably to some interpreters of ADA (emphasis added). In other words, defendant made a conscious decision to place most of the additional wheelchair seating in the corners of the end zones, or up in the “nosebleed section” on Level 7, so the wheelchair seating would not displace “prime seats” at center court and a press area. See also Allison Depo. at 151-52 (Ellerbe Becket showed defendant several locations other than Level 7 where wheelchair spaces could be added, such as the west side of the arena at the main concourse level, but defendant rejected those alternatives and directed El-lerbe Becket to put 28 wheelchair spaces on Level 7.) This also appears to explain why there are not enough wheelchair spaces in the 100 level and preferred seating areas. It is not necessary for this court to decide whether seats in the corners of the end zone or in the rafters of the arena are in fact less desirable than seats directly behind the basket or at mid-court. That is a matter of personal preference. The issue here is one of comparable choices being available to persons with disabilities. Defendant has offered no valid excuse for its failure to provide wheelchair spaces in entire sections of the arena. Plaintiffs also have identified problems with the vertical distribution of wheelchair spaces at the Rose Garden. I previously concluded that defendant had improperly placed 33 wheelchair spaces on Level 7. Plaintiffs point out that, in the basketball configuration, there are proportionately too few wheelchair seats in the 100 level of the lower concourse and in the preferred seating. There are 5,264 seats on the 100 level, but only 38 wheelchair spaces. Approximately 52 wheelchair spaces should have been provided on that level of the arena if the wheelchair seating is to be distributed in a manner that is roughly proportionate to the overall distribution of seating at the Rose Garden, ie., one percent of 5,264. Absolute proportionality in the number of wheelchair spaces on each level is not required; some leeway must be permitted for design purposes. Unfortunately, neither the Access Board nor DOJ has seen fit to provide arena designers with much guidance regarding the degree of leeway that is permitted. In designing a quarter-billion dollar arena, the owner and designer understandably would like a definitive standard. They may not necessarily like the standard, but at least there will be a goalpost against which to measure their design, and some assurance that the design will not later be found to be in violation of the ADA. In the absence of any definitive statement by DOJ or the Access Board, of necessity this court must define its own standard, consistent with the text and purposes of the ADA and its enabling regulations, and the reasonable interpretations that have been given to those laws by the agencies charged with their implementation and enforcement. The court intends for this to be an interim standard, serving only until the Access Board and DOJ provide a more detailed statement of what arena designers must do to satisfy the dispersal requirements. Until that occurs, the' court concludes that an arena the size of the Rose Garden is presumptively in compliance with the vertical dispersal requirement for wheelchair seating if the deviation from absolute proportionality does not exceed ten percent (or one wheelchair space, which ever is greater). In other words, if absolute proportionality (ie., one percent of the ambulatory seating capacity) would require that 52 wheelchair spaces be placed on a particular level of the arena, the vertical dispersal requirement is satisfied by placement of as few as 47 or as many as 57 of the required wheelchair spaces on that particular level. Of course, the total number of wheelchair spaces in the arena still must satisfy the “one percent plus one” standard. In addition, the “safe harbor” rule articulated here pertains only to the quantity of wheelchair spaces that are required on each level of the arena, and not to the distribution of those wheelchair spaces within each level which may be subject to additional requirements. If the vertical dispersal of the wheelchair spaces deviates by more than ten percent from the target number, that is not a per se ADA violation, but the burden falls upon the arena’s owner or designer to justify the design and to demonstrate that they could not have more fully complied with the vertical dispersal requirement. That is a difficult burden to discharge, since the court begins with the strong presumption that it is possible to fully comply with the dispersal requirements. There are only 38 wheelchair spaces on the 100 level of the lower concourse of the Rose Garden, a deviation of 27 percent from the 52 spaces that should have been provided and well outside the permissible range of 47 to 57 spaces. That falls far short of the mark. Likewise, there are 1,728 “preferred” seats at the Rose Garden, but only 12 wheelchair spaces. Absolute proportionality would mandate 17 wheelchair spaces on that level (one percent of 1,728.) The ten percent deviation rule allows a range of between 15 and 19 wheelchair spaces. Again, the facilities at the Rose Garden fall short of the mark, departing 29 percent from the standard. Defendant has offered no valid excuse for failing to provide a sufficient number of wheelchair spaces on the lower levels of the Rose Garden. I conclude that the present design of the Rose Garden violates both the horizontal and vertical dispersal requirements of the ADA and its implementing regulations by improperly clustering the great majority of wheelchair spaces in certain parts of the arena, while few or no wheelchair spaces are available in the remainder of the arena. At the same time, I reject some of the more extreme interpretations of the ADA that have been proposed. Although one goal of the ADA is to minimize the disparity between those persons with and without disabilities, the fact remains that wheelchair customers do differ from ambulatory customers in some important respects. Defendant did not create those distinctions, nor can it entirely eliminate them. Modern arenas are primarily vertical in orientation, a place where spectators often must ascend stairs to reach their seats. To some degree, these obstacles can be surmounted by providing elevators and by locating wheelchair spaces on accessible routes. Nonetheless, these physical constraints preclude mathematical homogeneity in the distribution of wheelchair seating. Moreover, in a multi-purpose arena such as the Rose Garden, in which there are many unique configurations, it may not always be feasible to provide front row wheelchair seats for every single event as plaintiffs have demanded. The court also acknowledges that in designing and operating this arena, defendant had to balance many concerns, only one of which was meeting the needs of wheelchair users. Defendant also had to be concerned, inter alia, with designing an arena that met the needs of those spectators not in wheelchairs — including some with other disabilities such as vision and hearing impairments. Defendant had to comply with fire and building codes, and to control costs so it was feasible to build the arena at all. The court will take such factors into account in deciding what remedy to require in this case, and in assessing the extent to which defendant can further disperse wheelchair locations at the Rose Garden and provide persons in wheelchairs with the full range of seating choices that are available to ambulatory patrons. Still, the fact remains that a disproportionate amount — 82 percent of the wheelchair seating at the Rose Garden is clustered-in the corners of the end zone or high up on Level 7. That is unacceptable in the design of a new arena such as the Rose Garden, and it does not comply with the requirements of Title III of the ADA and its enabling regulations. D. Availability of Wheelchair Seating: Until this point, I have been considering the adequacy of the Rose Garden’s wheelchair seating as it exists on paper. A related issue is whether those wheelchair spaces exist only on paper, or if they are in fact available for use by persons with disabilities. Notwithstanding the colorful charts furnished by defendant which depict numerous wheelchair spaces, it appears that the only time many of those wheelchair locations were actually available for use by wheelchair patrons was on the day that the court toured the Rose Garden to inspect the wheelchair seating arrangements. The record evidences a policy and practice of systematically “infilling” the wheelchair locations with portable tiers of conventional seats for use by ambulatory patrons. The primary motivation for infilling is economic. In an arena such as, the Rose Garden, wheelchairs occupy more space than conventional seats, due to their size, the necessity of providing a wide aisle and room in which to maneuver, and the requirement to provide a companion seat next to each wheelchair space. However, the arena operator is precluded from charging wheelchair users a higher price commensurate with the additional space that is consumed. See 28 CFR § 36.301(c) (public accommodation may not impose a surcharge only on persons with disabilities to cover the cost of compliance with the ADA). See also Department of Justice, Americans with Disabilities Act Title Three Technical Assistance Manual (hereafter, “TAM”) (1993 and 1994 supp.) § III— 4.1400 and § III-4.4600 (expressing DOJ’s position that “[p]eople with disabilities may not be subjected to additional charges related to their use of a wheelchair.”) For Trail Blazers games at the Ros'e Garden, at least 133 of the wheelchair/companion pairs are routinely infilled with 1,028 conventional seats. Defendant’s Submission in Response to Request from the Court at 8-9. Many of those conventional seats are priced at between forty-seven and eighty .dollars, or more. Defendant’s Ex. 6. Extrapolating from those numbers, infilling 133 wheelchair spaces with 1,028 conventional seats yields an additional fifty thousand dollars or so in ticket sale revenue for each Trail Blazers home game — -and there are at least forty home games per Season (and more if the Trail Blazers make the playoffs.) Conversely, if the Trail Blazers do not infill those wheelchair spaces, they potentially stand to lose over two million dollars in ticket revenues each season. To those sums must be added the revenue generated by an extra thousand customers for the arena’s concession stands, souvenir vendors, and restaurants. These numbers provide defendant and its principal tenants with a powerful incentive to infill as many wheelchair spaces as possible. For the same reason, plaintiffs understandably fear that defendant may discourage attendance by ■ wheelchair users, limit their choice of seats, and steer wheelchair fans to less expensive and less desirable seats. This is one of the most significant issues concerning the design and operation of the Rose Garden yet, to date, there is very little law defining the rights and obligations of the respective parties-under these circumstances. The Title III regulations próvide that “[rjeadily removable seats-may be installed in wheelchair spaces when the 'spaces are not required to accommodate wheelchair users.” Standard 4.33.3. The question presented here is whether the practice in the Rose Garden exceeds the bounds of what is permissible. (i) Is OAC Responsible for Infilling and Ticket Sale Policies? At the outset, I acknowledge defendant’s protest that decisions regarding infilling, ticket sale policies, and other operational matters are made by individual event promoters' and not by defendant OAC, which owns and operates the building. I do not find that distinction to be persuasive, at least on the facts of this case. The issue here does not concern a defined space leased to a private entity, such as a restaurant, an issue that I will address elsewhere in this opinion. Nor is this a case where a promoter for a single event took some action that allegedly violated the ADA. Rather, the policies and practices at issue here are pervasive, particularly on the part of the building’s primary tenant, the Portland Trail Blazers. Defendant, as the landlord, has the ability to alter the challenged policies and practices. These policies and practices go to the very heart of the arena’s principal purpose and the issue of whether this public accommodation complies with the requirements established by the ADA. I also note the extremely close relationship between defendant and the Trail Blazers, including overlapping ownership and key management officials. Furthermore, some of the challenged ticket sale policies are included :in the seating plans drawn up by- defendant as early as July 9, 1992, three years before the arena opened for business. The same ticket sale policies are included in both the basketball and hockey seating plans. It appears to have been defendant, not the Trail Blazers, that formulated those policies. At a minimum, defendant actively participated in their design and implementation. In its briefs, defendant even describes these policies as “OAC’s policy, which is followed by the Trail Blazer’s.” Defendant’s Submission in Response to Request from the Court at 5. See also Defendant’s Submission in Response to the Court’s Request of August 21,1997, at 2 (“Under OAC’s policy regarding the sale of modified aisle seats, which is followed by the Trail Blazers ...”) In addition, employees of defendant have assisted in implementing those practices, e.g., by installing tiers of standard seats in designated wheelchair locations. Finally, for purposes of this claim, I am considering only whether to order injunctive relief, not whether to hold defendant hable for damages (which are not available under Title III of the ADA). I conclude that OAC is a proper defendant regarding this issue and that it is appropriate to address the challenged policies and practices in the context of this case, (ii) Do the Infilling and Ticket Sale Policies at the Rose Garden Violate the Title III Regulations? (a) Season Tickets and Long-Term Contracts: The vast majority of tickets for Trail Blazers games are sold on a season ticket basis. See Defendant’s Submission at 6 (“The Trail Blazers business plan was to sell all but 1,500 of the seats in the Arena on a season ticket basis.”) The more desirable seats are even more restrictive, requiring purchase of a multi-year contract for five, seven or nine years. Isaac Depo. at 45 (“[A] great percentage of our ticket holders are on a multi-year purchase basis, which becomes more than a right of first refusal. They’ve contracted to purchase their tickets for the next year.”) Of the remaining seats, some are sold in multi-game packages, while others are available for individual games. According to information furnished by defendant, in May 1994, more than a year before the Rose Garden was operational, future season tickets (at the Rose Garden) were offered to all current holders of season tickets at the Memorial Coliseum (which was home to the Trail Blazers before the Rose Garden was built.) Next, future season tickets were offered to those who already were on the waiting list to buy season tickets at the Coliseum. If there were not enough conventional seats available in a particular section, the wheelchair seats were replaced with conventional seats which were then , sold to ambulatory patrons on the waiting list, The Trail Blazers next offered additional season tickets to 'those who were current season ticket holders at ■ the Coliseum. Again, wheelchair seats were replaced by conventional seats and sold to ambulatory patrons. Finally, any remaining season tickets were offered to the general public, including those persons with disabilities. The effects of this policy were predictable. Most seats for Trail Blazers games at the Rose Garden have been sold on a season ticket basis (or longer) to those who were existing season ticket holders at the Coliseum, few (if any) of whom use a wheelchair. Once a seat is sold on a season ticket basis, the holder has the right (or in many eases, the obligation) to renew that ticket each year, and most do renew. See, e.g., Isaac Depo. at 45. ' Season ticket holders are entitled to renew their subscription each year notwithstanding that an ambulatory patron is occupying a designated “wheelchair” space and without regard to whether that space has been requested by a person using a wheelchair. The end result is that most wheelchair locations in the Rose Garden exist only on paper, having been infilled with conventional seats and sold to ambulatory patrons on a season ticket or longer basis. Defendant admits that 27 of the 40 wheelchair sections at the Rose Garden have been “in-filled completely.” Defendant’s Submission at 8. In view of the high renewal rate among season ticket holders, the effect of this policy is to permanently infill nearly three-quarters of the wheelchair sections at the Rose Garden, including all (or almost all) of the more desirable seats. Those 27 wheelchair sections contain 183 of the 191 wheelchair spaces at the Rose Garden (or 133 of 158 wheelchair spaces after excluding the 33 spaces on Level 7.) In other words, fully 84 percent of the non-Level 7 wheelchair spaces are routinely infilled for every game, and that is not counting additional infilling for individual games. Those 133 wheelchair spaces have been replaced by 1,028 ambulatory seats. Id. Standard 4.33.3 permits infilling of wheelchair spaces with readily removable seats when the wheelchair spaces are not needed to accommodate wheelchair users. From a purely physical standpoint, the infilled seats at the Rose Garden are “readily removable.” As a practical matter, however, those seats are permanently assigned to ambulatory patrons and are not available to wheelchair users. The policies adopted by defendant and its principal tenant defeat the purpose for requiring those seats to be “readily removable.” Likewise, it is circular reasoning to say that those spaces are “not needed” to accommodate wheelchair users when anyone who inquired would be told that those spaces are not available. Defendant argues that its policy does not discriminate against persons with disabilities because the season tickets were originally offered on the same basis to those with and without disabilities. The policy may be facially neutral, but its disparate impact is incontrovertible. Cf TAM §§ III-4.1100 and 4.2100 (1993 ed. and 1994 supp.) (listing examples of policies that.are facially neutral but nonetheless have a disparate impact upon persons with disabilities.) That disparate impact is exacerbated by the manner in which season tickets are purchased and used and in which fans obtain single-game tickets. There undoubtedly are some devoted fans who purchase a season ticket and attend every home game during the season. However, the court takes judicial notice that it also is common practice to share a season ticket among several people, with each participant receiving a portion of the tickets for the season. Alternatively, season ticket holders may elect to attend some games, and give the tickets for the remaining games to friends, relatives, clients, business associates and co-workers, or else sell the undesired tickets. Such “surplus” tickets for individual Trail Blazers games have traditionally been sold through classified advertisements placed by season ticket holders or through other sources. From the standpoint of an ambulatory patron, season tickets are fungible; there are over a million residents in the Portland metropolitan area who are physically able to use those tickets. By contrast, the option to share a season ticket, or to sell or give away unwanted tickets, is generally not available to wheelchair users, unless the person sharing the season ticket or receiving the surplus ticket also uses a wheelchair. It may also be more difficult for individuals who use a wheelchair to commit to buying an entire season’s worth of tickets, as opposed to a single game, because of the logistical problems that may be encountered in traveling to the arena. Wheelchair users are similarly constrained in their ability to obtain tickets for individual games. An ambulatory patron who is not a season ticket holder, but desires to attend a game, may obtain a ticket from a friend, relative, or business associate who has a season ticket, or else purchase an excess “season” ticket for a single game through the classified advertisements or a ticket broker. Ambulatory patrons can use any of the thousands of “season” tickets that are sold for each game. Those in wheelchairs do not have that option. A wheelchair user cannot obtain an extra ticket from a friend, relative or business associate, or purchase a surplus ticket via the classified advertisements, unless the ticket happens to be for a wheelchair seat. That is extremely unlikely, since every (or almost every) season ticket in the entire Rose Garden has been sold to an ambulatory person, and the wheelchair spaces have been in-filled. The nominally “equal” policy that has been applied here is inherently unequal. Those in wheelchairs are effectively precluded from obtaining any of the better seats for events such as Trail Blazers games and will continue to be excluded for the foreseeable future. Various ideas have been suggested to help alleviate this problem. DOJ’s position is that defendant and its principal tenants should be prohibited from infilling wheelchair spaces unless the event is a complete sell-out, ie., every conventional seat in the building has been sold, as opposed to merely every seat in a particular price category. See United States’ Responses to Questions Posed by the Court at 2 (“Before wheelchair locations can be replaced with other seating ... all other seats in the arena must first be sold.”) I question whether that is the best solution to the problem presented here, at least with regard to the Trail Blazers as opposed to other individual events. Although attendance has slumped a little during the past few years along with the home team’s performance, historical patterns suggest that if necessary the Trail Blazers could sell every conventional seat in the house on a season ticket basis, albeit many of those tickets might then be resold through ticket brokers and other secondary markets on an individual game basis. Under the rule proposed by DOJ, once the arena is nominally a “sell out” the Trail Blazers could infill the wheelchair spaces and sell those seats on a season ticket basis to ambulatory patrons. The Trail Blazers would not be required to reserve any seats for wheelchair users. The net result would not be an improvement over the present circumstances. Plaintiffs and DOJ have suggested that the right of first refusal to renew a season ticket for an infilled wheelchair seat should be conditioned upon that wheelchair seat not being requested by a wheelchair user. United States’ Response to Questions at 3. This proposal may be difficult to implement because infilling of wheelchair areas is not a one-for-one pr