Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-1999

Caruso v. Blockbuster Sony
Precedential or Non-Precedential:

Docket 97-5693,97-5764




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Recommended Citation
"Caruso v. Blockbuster Sony" (1999). 1999 Decisions. Paper 90.
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Filed April 6, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-5693 and 97-5764

WILLIAM CARUSO;
ADVOCATES FOR DISABLED AMERICANS;

PARALYZED VETERANS OF AMERICA,
Appellant,

v.

BLOCKBUSTER-SONY MUSIC ENTERTAINMENT CENTRE
AT THE WATERFRONT; BLOCKBUSTER CORPORATION;
SONY MUSIC ENTERTAINMENT, Division of Sony
Corporation of America

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 95-cv-03400)
(District Judge: Honorable Joseph E. Irenas)

Argued: August 4, 1998

Before: NYGAARD, ALITO, RENDELL, Circuit Judges

(Opinion Filed: April 6, 1999)

       NIKI KUCKES
       DAVID S. COHEN (ARGUED)
       JODY MANIER KRIS
       Miller, Cassidy, Larroca & Lewin
       2555 M Street, N.W.
       Washington, D.C. 20037
       ANTHONY J. BRADY, JR.
        (ARGUED)
       1 Alpha Avenue, Suite 36
       Voorhees, N.J. 08043

       Counsel for Appellants

       NORMAN E. GREENSPAN
        (ARGUED)
       Blank, Rome, Comisky & McCauley
       One Logan Square
       Philadelphia, PA 19103

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

The Blockbuster-Sony Music Entertainment Centre
("E-Centre") is a music and entertainment facility located in
Camden, New Jersey. An interior pavilion at the E-Centre
provides fixed seating for 6,200 patrons, and an uncovered
lawn area located behind the pavilion can accommodate
approximately 18,000 spectators who either stand or sit on
portable chairs or blankets.

Appellant William Caruso, a Vietnam veteran who uses a
wheelchair as a result of his disability, attended a concert
at the E-Centre on July 13, 1995. The following day,
Caruso and the Advocates for Disabled Americansfiled a
complaint in federal district court alleging, inter alia, that
the E-Center does not comply with Title III of the Americans
with Disabilities Act (ADA), Pub.L. No. 101-336, 104 Stat.
327 (1990) (codified at 42 U.S.C. S 12181 et seq. (1994)),
because: 1) the wheelchair areas in the pavilion do not
provide wheelchair users with lines of sight over standing
spectators and 2) the lawn area is not wheelchair
accessible. The District Court granted summary judgment
in favor of the defendants on both claims.1 We now affirm
in part and reverse in part.
_________________________________________________________________

1. Before entering final judgment, the District Court granted a motion by
the Paralyzed Veterans of America (PVA) to intervene as plaintiff solely
for the purpose of appealing the District Court's ruling that the E-Centre
does not need to provide wheelchair users sitting in the pavilion with
lines of sight over standing spectators.

                                  2
I.

Title III of the ADA protects individuals against
discrimination "on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation." 42 U.S.C. S 12182 (a). Title III requires
that newly constructed facilities be "readily accessible to
and usable by individuals with disabilities, except where an
entity can demonstrate that it is structurally
impracticable." 42 U.S.C. S 12183. In order to carry out
these provisions, Congress has directed the Department of
Justice (DOJ) to "issue regulations . . . that include
standards applicable to facilities" covered by Title III. 42
U.S.C. 12186(b). Congress has further required that any
standards included by the DOJ in its regulations"be
consistent with the minimum guidelines and requirements
issued by the Architectural and Transportation Barriers
Compliance Board" ("Access Board"). 42 U.S.C. S 12186(c).2

Pursuant to its statutory authority under Title III, the
DOJ has issued numerous regulations, see 28 C.F.R.
SS 36.101-36.608 (1998), one of which adopts the Access
Board's guidelines as the DOJ's own Standards for New
Construction and Alterations ("Standards"). See 28 CFR
S 36.406 (referring to 28 C.F.R. S 36, App. A). Both of the
issues in this case require us to interpret portions of the
DOJ Standards.

A. Lines of Sight

Appellants contend that DOJ Standard 4.33.3, which was
adopted after notice and comment, requires wheelchair
_________________________________________________________________

2. The Access Board is a federal agency that was created by the
Rehabilitation Act of 1973. See 29 U.S.C. S 792(a). The Board is
composed of 25 members: 13 public members appointed by the
President, as well as officials of 12 federal agencies or departments. 

mission focuses on the elimination of architectural,
transportation, communication, and attitudinal barriers confronting
people with disabilities. See 29 U.S.C. S 792(b). The ADA directed the
Access Board to issue "minimum guidelines" to supplement the Board's
existing Minimum Guidelines and Requirements for Accessible Design.
42 U.S.C. S 12204)(a).

                               3
seats in the E-Center pavilion to afford sightlines over
standing spectators. Standard 4.33.3 provides:

       Placement of Wheelchair Locations. 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. They shall adjoin an accessible route
       that also serves as a means of egress in case of
       emergency. At least one companion fixed seat shall be
       provided next to each wheelchair seating area. When
       the seating capacity exceeds 300, wheelchair spaces
       shall be provided in more than one location. . . .

28 C.F.R. S 36, App. A, 4.33.3.

Appellants first argue that the plain meaning of the
phrase "lines of sight comparable to those for members of
the general public" requires that "if standing spectators can
see the stage even when other patrons stand, wheelchair
users, too, must be able to see the stage when other
patrons stand." PVA Br. at 23. While this argument has
considerable force, it does not account for the rest of the
language in Standard 4.33.3, which helps the reader to
place the phrase "lines of sight comparable" in context.
Standard 4.33.3 is entitled "Placement of Wheelchair
Locations" and includes at least two provisions concerning
the dispersal of wheelchair locations in facilities with fixed
seating plans.3 In addition, one of these dispersal provisions
appears in the same sentence that contains the "lines of
sight" requirement. Given this focus on the dispersal of
wheelchair locations, it seems plausible to read the"lines of
sight comparable" requirement as follows: if a facility's
seating plan provides members of the general public with
different lines of sight to the field or stage (e.g., lines of
sight at a baseball game from behind the plate, on either
side of the diamond, and from the outfield bleachers), it
_________________________________________________________________

3. Appellants concede that the provisions in 4.33.3 requiring a "choice of
admission prices" and "more than one location" when "the seating
capacity exceeds 300" concern dispersal of wheelchair areas throughout
a facility. See PVA Reply Br. at 7.

                                  4
must also provide wheelchair users with a comparable
opportunity to view the field or stage from a variety of angles.4

Appellants reject this suggestion that the "lines of sight"
provision might require dispersal rather than vertical
enhancement, contending that such a reading would
impermissibly render other portions of Standard 4.33.3
superfluous. They argue:

       Standard 4.33.3 . . . contains an explicit dispersal
       provision, wholly independent of the "comparable" line
       of sight provision. It requires, in pertinent part, that
       "[w]heelchair areas . . . shall be provided so as to
       provide persons with disabilities a choice of admission
       prices." For facilities, such as modern sports and
       entertainment venues, that offer tickets at a range of
       prices depending on seating location, dispersal of
       wheelchair locations is required by this provision.
       Moreover, a requirement for dispersal is also derived
       from the language in Standard 4.33.3 that "[w]hen the
       seating capacity exceeds 300, wheelchair spaces shall
       be provided in more than one location." Construing the
       phrase "lines of sight comparable to those provided to
       members of the general public" as simply requiring
       dispersal of wheelchair locations, as the E-Centre
       urges, is contrary to the plain language of that
       regulation and would deprive important parts of the
       regulation of any meaning.

PVA Reply Br. at 6-7. This attempt to divorce the "lines of
sight" requirement from the two provisions in 4.33.3 that
are indisputably about dispersion overlooks the possibility
that the three provisions are designed to work together so
that: 1) at a minimum, facilities with over 300 seats provide
at least two wheelchair locations and 2) larger facilities
provide wheelchair users with the option of choosing from
among seats that afford a variety of views for a variety of
_________________________________________________________________

4. Although not discussed by the E-Centre, there might be an additional,
distinct reason for concluding that the language of Standard 4.33.3 does
not clearly require sightlines over standing patrons: In light of the fact
that Standard 4.33.3 concerns the design of "seating plans" and "seating
areas," it seems entirely possible that the drafters were assuming seated
spectators and not addressing the issue of standing patrons.

                               5
corresponding prices. Contrary to appellants' assertion, this
second result is not accomplished by the "choice of
admission prices" language alone. For, if Standard 4.33.3 is
read in piecemeal fashion as appellants suggest, a facility,
regardless of its size and the number of views that it offers
to the general public, would be able to place all wheelchair
users in just two locations so long at it offers some choice
of prices in those locations. See Independent Living
Resources v. Oregon Arena Corp., 

, 743
n.61 (D. Or. 1997).

In the end, it seems that both interpretations of the "lines
of sight" language are plausible and would provide some
benefit to wheelchair users. Appellants' reading would
benefit wheelchair users by allowing them to see when
other patrons stand. The E-Centre's reading would benefit
wheelchair users by providing them with a greater
opportunity to view a performance or event from a variety
of viewpoints. Since both readings of the rule are plausible
and are consistent with the ADA's purpose of enabling
people with disabilities to share equally in the benefits
provided by a public accommodation, we conclude that the
"lines of sight" language is ambiguous.

Appellants' second contention is that, even if Standard
4.33.3 is ambiguous, the court should follow the
interpretation that has been given to the rule by the DOJ.
See Thomas Jefferson Univ. v. Shalala, 

, 512
(1994) (explaining that an agency's interpretation of its own
regulation "must be given controlling weight unless it is
plainly erroneous or inconsistent with the regulation")
(internal quotations omitted); Menkowitz v. Pottstown
Memorial Medical Center, 

, 123 (3d Cir. 1998)
(DOJ Technical Assistance Manual entitled to deference).
But see 

(Thomas, J., dissenting) ("giving
substantive effect to . . . a hopelessly vague regulation . . .
disserves the very purpose behind the delegation of
lawmaking power to administrative agencies"); John F.
Manning, Constitutional Structure and Judicial Deference to
Agency Interpretations of Agency Rules, 96 Colum. L. Rev.
612 (1997)(urging reexamination of the principle of judicial
deference to agency interpretations of regulations).
Specifically, appellants rely on the following statement

                               6
appearing in a 1994 Supplement to the DOJ's Technical
Assistance Manual (hereinafter "1994 TAM Supplement"):

       In addition to requiring companion seating and
       dispersion of wheelchair locations, [Standard 4.33.3]
       requires that wheelchair locations provide people with
       disabilities lines of sight comparable to those for
       members of the general public. Thus, in assembly
       areas where spectators can be expected to stand during
       the event or show being viewed, the wheelchair
       locations must provide lines of sight over spectators who
       stand. This can be accomplished in many ways,
       including placing wheelchair locations at the front of a
       seating section, or by providing sufficient additional
       elevation for wheelchair locations placed at the rear of
       seating sections to allow those spectators to see over
       the spectators who stand in front of them.

1994 DOJ TAM Supp. P III-7.5180, Conditional App. at 49
(emphasis added).

In response, appellees maintain that the 1994 TAM
Supplement is not an interpretive rule entitled to deference,
but rather, an invalid attempt to adopt a new substantive
requirement without notice and comment. The E-Centre
bases this argument on the history of Standard 4.33.3,
which, according to the E-Centre, reveals that the rule was
not intended to address the issue of lines of sight over
standing patrons.

Standard 4.33.3 was originally proposed by the Access
Board on January 22, 1991. At that time, the provision
provided:

       Placement of Wheelchair Locations. Wheelchair
       areas shall be an integral part of any fixed seating plan
       and shall be dispersed throughout the seating area.
       They shall . . . be located to provide lines of sight
       comparable to those for all viewing areas.

56 Fed. Reg. 2380. In its public notice regarding the
proposed rule, the Access Board explicitly invited comments
on the issue of sightlines over standing spectators:

       Section 4.33.3 provides that seating locations for
       people who use wheelchairs shall be dispersed

                               7
       throughout the seating area and shall be located to
       provide lines of sight comparable to those for all
       viewing areas. This requirement appears to be adequate
       for theaters and concert halls, but may not suffice in
       sports arenas or race tracks where the audience
       frequently stands throughout a large portion of the game
       or event. In alterations of existing sports arenas,
       accessible spaces are frequently provided at the lower
       part of a seating tier projecting out above a lower
       seating tier or are built out over existing seats at the
       top of a tier providing a great differential in height.
       These solutions can work in newly constructed sports
       arenas as well, if sight lines relative to standing
       patrons are considered at the time of the initial design.
       The Board seeks comments on whether full lines of
       sight over standing spectators in sports arenas and
       other similar assembly areas should be required.

56 Fed. Reg. 2314 (emphasis added).

On February 22, 1991, the DOJ published a notice in
which it proposed to adopt the Access Board's Proposed
Guidelines "with any amendments made by the [Access
Board] during the rulemaking process." 56 Fed. Reg. 7478-
79. The DOJ notice stated that "any comments" on the
Access Board's Proposed Guidelines should be sent directly
to the Board. 

On July 26, 1991, the Access Board announced its
proposed final guidelines. Along with the guidelines, the
Board published commentary, including two passages
relevant to the meaning of the "lines of sight comparable"
language in 4.33.3. First, the Board gave the following
response to comments on dispersal:

       Response. The requirements in 4.33.3 for dispersal of
       wheelchair seating spaces have been modified.
       Wheelchair seating spaces must be an integral part of
       any fixed seating plan and be situated so as to provide
       wheelchair users a choice of admission prices and lines
       of sight comparable to those available to the rest of the
       public. . . .

56 Fed Reg. 35440. By discussing the "lines of sight"
requirement in the section of the commentary concerning

                                8
dispersal, the Board appeared to be indicating that it was
treating this requirement, like the choice of price
requirement, as a dispersal requirement. The Board then
went on to consider the issue of sightlines over standing
patrons in a separate section of the commentary:

        Comment. The [Board] asked questions reg arding
       . . . lines of sight over standing spectators in sports
       arenas and other similar assembly areas. . . . Many
       commenters . . . recommended that lines of sight
       should be provided over standing spectators.

        Response. . . . The issue of lines of sight over
       standing spectators will be addressed in guidelines 5 for
       recreational facilities.

On the same day that the Access Board issued its
proposed guidelines, including the above comment and
response seemingly deferring the issue of standing lines of
sight, the DOJ promulgated Standard 4.33.3, which is
worded identically to the Access Board's final proposed text,
which addressed the sight-line issue. Unlike the Board, the
Department did not initially express a view in its
commentary on the issue of sightlines over standing
spectators. Rather, in explaining its adoption of the Access
Board's guidelines, the DOJ made the following general
statement:

       The Department put the public on notice, through the
       proposed rule, of its intention to adopt the proposed
       [guidelines], with any changes made by the Board, as
       the accessibility standards. As a member of the Board
       and of its ADA Task Force, the Department
       participated actively in the public hearings held on the
       proposed guidelines and in preparation of both the
_________________________________________________________________

5. It is important to note the difference between Access Board guidelines
and DOJ guidelines. For the Access Board, guidelines are the
substantive rules they develop and promulgate. Thus, in speaking of a
future guideline, the Board was not referring to a future interpretation
of
4.33.3, but rather, a separate substantive rule it would develop. By
contrast, a DOJ guideline is an interpretation of a substantive rule, not
the substantive rule itself.

                                9
       proposed and final versions of [the guidelines] . . . [All]
       comments on the Department's proposed rule . . . have
       been addressed adequately in the final [guidelines].
       Largely in response to comments, the Board made
       numerous changes from its proposal.

28 C.F.R. S 36, App. B, at 632-33.

The next discussion of the sightlines issue came in a
1992 Notice of Proposed Rulemaking published by the
Access Board. There the Board summarized what had
occurred during the 1991 notice and comment period with
regard to 4.33.3 and expressed its future intentions:

        During the initial rulemaking, the Board requested
       information on lines of sight at seating locations for
       persons who use wheelchairs. . . . An overwhelming
       majority of responses favored including a provision
       requiring lines of sight over standing spectators in
       sports arenas and other similar assembly areas. A few
       commenters opposed such a provision because it
       would be either unenforceable, add significant cost or
       reduce seating capacity. . . . The Board intends to
       address the issue of lines of sight over standing
       spectators in the guidelines for recreational facilities
       which will be proposed at a future date.

        Question 17: The Board is seeking comments on the
       design issues associated with providing integrated and
       dispersed accessible seating locations with a clear line
       of sight over standing spectators in arenas, stadiums or
       other sports facilities. Clearly, not all seats in sports
       facilities afford clear lines of sight over standing
       spectators. Tall persons, guard railings or otherfixed
       elements in the facility may block one's view of the
       playing field. However, since persons with disabilities
       have fewer choices of seating locations, should all the
       accessible seating locations be required to have lines of
       sight over standing spectators? Would such a
       requirement compromise the requirement for dispersed
       wheelchair seating by providing seating in fewer
       locations? If maximum dispersal of accessible seating
       locations is provided, what percentage of such locations
       can be provided with a clear line of sight over standing

                               10
       spectators? The Board encourages commenters to
       provide cost information and examples (including
       drawings, pictures or slides) of sports facilities where
       the accessible seating locations are dispersed,
       integrated and provide clear lines of sight over standing
       spectators.

57 Fed. Reg. 60618 (emphasis added).

Based on this regulatory history, the E-Centre contends
that Standard 4.33.3 was intended to leave unresolved the
issue of lines of sight over standing spectators, and, as a
result, the DOJ was not entitled to "interpret" Standard
4.33.3 in 1994 in a fashion that did resolve the issue of
sightlines over standing spectators. Cf. Thomas Jefferson
Univ. v. Shalala, 

, 512 (1994) (courts need not
defer to an agency's interpretation of its own regulation if
an "alternative reading is compelled by . . . indications of
the [agency's] intent at the time of the regulation's
promulgation"). The E-Centre maintains that, if the DOJ
wanted to impose a new requirement that wheelchair users
be able to see over standing patrons, it had to engage in
notice and comment, since such a requirement would
constitute a new substantive rule. See 5 U.S.C. S 553 (b) &
(c) (notice and comment procedure required for substantive
rules but not interpretive rules); DIA Navigation Co. v.
Pomeroy, 

, 1264 (3d Cir. 1994) (explaining
that a rule is substantive if "the agency intends to create
new law, rights or duties").

Appellants dispute the E-Centre's characterization of the
1994 DOJ statement as a "substantive" rule. They argue
that, because the DOJ did not explicitly adopt the Access
Board's commentary, the meaning of Standard 4.33.3 was
not limited by that commentary when it was adopted, and
thus the 1994 statement does not constitute a "change" in
the requirements under 4.33.3. They also maintain that
even if the Access Board's commentary can be attributed to
the DOJ, the DOJ was entitled to change its interpretation
of Standard 4.33.3 in 1994 without notice and comment.

With regard to the threshold question of whether the
Access Board's commentary can be attributed to the DOJ,
the appellants rely on the District of Columbia Circuit's

                                11
analysis in Paralyzed Veterans of America v. D.C. Arena
L.P., 

(D.C. Cir. 1997):

       If the Department, when it promulgated the regulation,
       had said what the Board said, or even clearly adopted
       what the Board said, it would be hard to conclude that
       the Department did not subsequently "amend" the
       regulation in violation of the APA. But Justice did not
       do so in its statement of basis and purpose. It never
       referred to the Board's concern, nor did it imply that its
       regulation did not address the problem of lines of sight
       over standing spectators. It may well be that it is a
       plausible inference that Justice, at the time,
       deliberately intended the regulation to mean the same
       thing as did the Board -- but it is not a necessary
       inference. . . . We admit the issue is not easy;
       appellants almost but do not quite establish that the
       Department significantly changed its interpretation of
       the regulation when it issued the 1994 technical
       manual.

The problem with this analysis is that it results in a
conclusion that the DOJ, while aware that its proposed rule
was ambiguous as to an issue of concern to many
commenters,6 both: 1) adopted the proposed rule without
offering any explanation as to how it resolved the disputed
issue; and 2) later resolved the dispute by way of
interpretation. This result would violate an important
principle discussed in the Paralyzed Veterans opinion:

       It is certainly not open to an agency to promulgate
       mush and then give it concrete form only through
_________________________________________________________________

6. In its own commentary to Standard 4.33.3, the DOJ stated that it had
"thoroughly analyzed" all of the comments received by the Board
regarding its proposed guidelines. See 28 C.F.R. S 36, App. B, at 632.
The Access Board's commentary makes clear that, in response to its
statement that 4.33.3 "may not suffice" to provide lines of sight over
standing spectators, "many" comments were received, 56 Fed. Reg.
35440, with a majority favoring the inclusion of"a provision requiring
lines of sight over standing spectators," but a few opposing such a
provision "because it would be either unenforceable, add significant cost
or reduce seating capacity." 57 Fed. Reg. 60618.

                               12
       subsequent less formal "interpretations." That
       technique would circumvent section 553, the notice
       and comment procedures of the APA.

While the Paralyzed Veterans court concluded
that the DOJ's promulgation of 4.33.3 did not violate this
principle, 

we must respectfully disagree. If
this principle is ever violated, it would seem to be when an
agency knows it is promulgating a rule that is ambiguous
on a substantive issue of concern to commenters, and later
tries to resolve the issue through an interpretive rule.

Rather than concluding that the DOJ consciously chose
to ignore a substantive issue regarding 4.33.3 that was
raised in the Access Board's notice of proposed rulemaking
and debated by commenters, we conclude that the DOJ
implicitly adopted the Access Board's analysis of 4.33.3.
This conclusion is strongly supported by the following
factors: 1) the DOJ referred all comments to the Board; 2)
the DOJ relied on the Board to make adequate changes
based on those comments; 3) the Board specifically
changed the language of 4.33.3 in response to comments
and explained that change in its commentary; 4) the DOJ
was a "member of the Board" and "participated actively . . .
in preparation of both the proposed and final versions of
the [guidelines]," 28 CFR Part 36, App. B, at 632; and 5)
the DOJ's commentary stated that the final guidelines
promulgated by the Board adequately addressed all
comments. Accord Independent Living Resources v. Oregon
Arena Corporation, 

, 741 (D. Or. 1997).

If the Access Board's views on 4.33.3 are attributed to
the DOJ, the remaining questions are: 1) whether these
views are inconsistent with the 1994 DOJ TAM
interpretation, and 2) whether such an inconsistency
renders the 1994 DOJ TAM interpretation invalid. With
regard to the first question, the Access Board's commentary
_________________________________________________________________

7. The D.C. Circuit additionally relied on the fact that the defendants in
that case did not press the argument that Standard 4.33.3 constituted
"mush." 

instant case, by contrast, the E-Centre has argued
that the DOJ's rule would be impermissibly vague on the issue of
sightlines if the Access Board's commentary were not attributed to the
DOJ. See Appellees' Br. at 33.

                               13
treated the "lines of sight" language in 4.33.3 as a dispersal
provision while expressly deferring the issue of views over
standing patrons. See 56 Fed. Reg. 35440. Thus, as
interpreted by the Board, the "lines of sight comparable"
language requires dispersal of wheelchair seats but does
not address elevation of wheelchair seats to allow
wheelchair users to see over standing spectators. By
contrast, the 1994 TAM Supplement interprets 4.33.3 as
requiring lines of sight over spectators who stand. Thus,
the DOJ's interpretation is inconsistent with the Access
Board's interpretation in that it imposes a requirement that
had not previously existed.

Turning to the issue of an agency's ability to reinterpret
an ambiguous regulation, we agree with the District of
Columbia Circuit's discussion of this question in Paralyzed
Veterans. In that case, the court rejected the DOJ's
argument that "an agency is completely free to change its
interpretation of an ambiguous regulation so long as the
regulation reasonably will bear the second 

. The court explained:

       The government argues that an agency has the same
       latitude to modify its interpretation of a regulation as
       it does its interpretation of a statute under Chevron.
       We think the government is wrong. . . . Under the APA,
       agencies are obliged to engage in notice and comment
       before formulating regulations, which applies as well to
       "repeals" or "amendments." See 5 U.S.C. S 551(5). To
       allow an agency to make a fundamental change in its
       interpretation of a substantive regulation without notice
       and comment obviously would undermine those APA
       requirements. That is surely why the Supreme Court
       has noted (in dicta) that APA rulemaking is required
       where an interpretation "adopt[s] a new position
       inconsistent with . . . existing regulations." Shalala v.
       Guernsey Memorial Hosp., 

, 100 (1995).

Paralyzed 

(emphasis added).8
_________________________________________________________________

8. Notwithstanding this principle, the Paralyzed Veterans court did not
invalidate the interpretation in the 1994 TAM Supplement because it
ultimately concluded that the Access Board's interpretation of 4.33.3,
while probably inconsistent with the DOJ 1994 Tam Supplement
interpretation, was not attributable to the 

.

                               14
See also Syncor Intern. Corp. v. Shalala, 

, 94-95
(D.C. Cir. 1997) (dicta) (same).9

Appellants contend that this court should not follow the
District of Columbia Circuit's view because it is contrary to
Supreme Court and Third Circuit cases that allow agencies
to change their interpretations of regulations. See PVA Br.
at 38-43 & n.22. Most of the cases cited by the appellants,
however, concern agency interpretations of statutes, not
regulations.10 As for the cited cases that do discuss an
agency's ability to change its mind about a regulation, they
are readily distinguishable from the circumstances
contemplated by the District of Columbia Circuit and
present in the instant case. First, appellants rely on the
Supreme Court's statement in a recent Medicare case that
the Secretary of Health and Human Services was "not
estopped from changing a view she believe[d] to have been
grounded on a mistaken legal interpretation" of a
regulation. Thomas Jefferson Univ. v. Shalala, 

, 517 (dicta).11 However, the inconsistency in Thomas
_________________________________________________________________

9. The District Court in the instant case used similar reasoning to
conclude that the interpretation in the 1994 TAM Supplement was
invalid due to the lack of notice and comment:

       When the "legislative history" of an administrative regulation
evinces
       an intent not to cover a certain subject matter, the notice-and-
       comment requirements of the APA cannot be evaded merely by
       interpreting an existing regulation to cover subject matter
       consciously omitted from its scope.

, 216 (D.N.J. 1997).

10. See Smiley v. Citibank, 

, 742 (1996); Good Samaritan
Hosp. v. Shalala, 

, 417 (1993); Rust v. Sullivan, 

, 186 (1991); Sacred Heart Medical Center v. Sullivan, 

,
544 (3d Cir. 1992).

11. This statement is dicta because the Court had already concluded
earlier in its opinion that "petitioner fail[ed] to present persuasive
evidence that the Secretary has interpreted the[regulation] in an
inconsistent manner." 

                               15
Jefferson did not involve a "fundamental change" of a prior
interpretation that had general applicability, but rather, an
agency's adoption of a position that was arguably
inconsistent with some past actions taken by the Secretary
in individual cases. See 

Appellants also rely on
our decision in C.K. v. New Jersey Dep't of Health and
Human Services, 

(3d Cir. 1996), for the
proposition that an agency head, "in her discretion, is
allowed to change her mind over time regarding the wisdom
of certain programs." 

C.K., however, involved
inconsistent waiver decisions by an agency head who had
been given the statutory authority to waive certain
requirements. Thus, like Thomas Jefferson, it did not
address the situation where an agency publicly announces
one interpretation of a regulation that will presumably be
applied to all covered parties and then attempts to
fundamentally change that interpretation. Finally,
appellants rely on this court's decision in Beazer East, Inc.
v. EPA, 

(3d Cir. 1992), for the proposition
that "nothing in the APA prohibits an agency from adopting
or revising an interpretation of a regulation that has been
properly promulgated in an adjudication and applying that
interpretation retroactively." 

Beazer East is
distinguishable from the instant case for two reasons. First,
it involved agency adjudication, which is governed by
different principles than rulemaking. See 

Second, while the Beazer East court did state that agencies
could adopt or revise their substantive rules in
adjudication, it made clear that it was not dealing with a
situation where "the agency inconsistency interpreted a
standard over time or changed its interpretation." 

In fact, the court went on to explain that, if a new
interpretation that is inconsistent with past interpretations
"effectively imposes additional substantive requirements on
the regulated community, it should be placed directly in the
regulations. The regulations would then be subject to notice
and comment, with appropriate participation by the
regulated community." 

n.7 (dicta). This statement
is entirely consistent with the District of Columbia Circuit's
conclusion that an agency cannot effect a "fundamental
change in its interpretation of a substantive regulation
without notice and comment. . . ." Paralyzed 

.

                               16
Taken together, the cases indicate that agencies can alter
the interpretation of their regulations in modest ways
without requiring notice and comment. However, if an
agency's new interpretation will result in significantly
different rights and duties than existed under a prior
interpretation, notice and comment is required. This
distinction, which is not precise, is akin to the distinction
that is generally made between substantive and interpretive
rules. See DIA Navigation Co. v. Pomeroy, 

,
1264 (3d Cir. 1994) (although the line between substantive
and interpretive rules is "incapable of being drawn with
much analytical precision," and the tests formulated to
draw the line "are often circular," the "basic determination
. . . involves whether . . . the agency intends to create new
law, rights or duties") (quotations omitted). In that context,
we have indicated that it is "helpful to analyze a rule with
an eye to the policies animating the APA's notice and
comment requirement." 

"The essential purpose
of according S 553 notice and comment opportunities is to
reintroduce public participation and fairness to affected
parties after governmental authority has been delegated to
unrepresentative agencies." 

In the instant case, the public was invited to discuss a
certain issue during a notice and comment period, and
comments were submitted on both sides of the issue. The
public was then told that the issue would not be resolved
by the adopted rules. A year later, the public was told that
a rule resolving the issue would be "proposed at a future
date." 57 Fed. Reg. 60618. However, three years after the
initial rules were adopted, the DOJ announced, without
explanation and without engaging in notice and comment,
that it would interpret the initial rules as resolving the
issue that had previously been left open. Such behavior is
unfair to those who relied on agency statements that the
issue was not being resolved by the initial rules and
interpreting the regulation as resolving the issue that it
seemed plainly to have eschewed. Accordingly, we conclude
that the DOJ's 1994 reinterpretation constituted a
"fundamental change" in interpretation that could only be
made by adopting a substantive rule pursuant to notice
and comment. Since the DOJ has not followed the notice
and comment procedures, we conclude that the E-Centre

                               17
did not violate the ADA by failing to provide wheelchair
users with sightlines over standing patrons. If DOJ believes
that the ADA should be interpreted to require that
wheelchair users be given lines of sight equivalent to
standing patrons -- and such a rule certainly has much to
recommend it -- the DOJ can accomplish this end through
notice-and-comment rulemaking. Indeed, the DOJ probably
could have achieved this end already had it followed that
course initially.

B. Access to the Lawn Area

Appellants' second contention is that the E-Centre does
not comply with the ADA because there is no wheelchair
access to the lawn area.12 In relevant part, Title III requires
that the facilities of a public accommodation be"readily
accessible to and usable by individuals with disabilities,
except where an entity can demonstrate that it is
structurally impracticable." 42 U.S.C. S 12183(a)(i). To
implement this mandate, the DOJ has adopted a regulation
requiring that "[a]t least one accessible route . . . connect
accessible buildings, accessible facilities, accessible
elements, and accessible spaces that are on the same site."
Standard 4.1.2(3) (emphasis added). Consistent with this
provision, the appellants seek "at least one wheelchair lift
to . . . provide access to the lawn area from the two outdoor
plazas." J.A. at 90 (Paradigm Report). See also Appellants'
Br. at 13 (arguing that "if a ramp were built to the lawn
area there would be greater integration of the facility"). The
E-Centre would appear obligated to provide such access
unless it can demonstrate structural impracticability.

The DOJ has explained in its regulations that the
structural impracticability exception is reserved for "those
rare circumstances when the unique characteristics of
_________________________________________________________________

12. Before the District Court, Caruso also argued that the E-Centre had
to include the capacity of the lawn area (18,000) in its calculations of
how many wheelchair locations to provide. The District Court rejected
this argument on the ground that DOJ Standard 4.1.3(19), which
requires that the number of wheelchair locations be equal to 1% + 1 of
a facility's capacity, only applies to assembly areas with "fixed

. Caruso has not challenged this ruling on appeal.

                               18
terrain prevent the incorporation of accessibility features."
28 C.F.R. S 36.401(c). Additional guidance, some of which is
directly on point, can be found in the DOJ commentary
that was published with the regulations:

        Consistent with the legislative history of the ADA,
       this narrow exception will apply only in rare and
       unusual circumstances where unique characteristics of
       terrain make accessibility unusually difficult. . . .
       Almost all commenters supported this interpretation.
       Two commenters argued that the DOJ requirement is too
       limiting . . . . These commenters suggested consistency
       with HUD's Fair Housing Accessibility Guidelines, which
       generally would allow exceptions from accessibility
       requirements, or allow compliance with less stringent
       requirements, on sites with slopes exceeding 10%.

        The Department is aware of the provisions in HUD's
       guidelines . . . . The approach taken in these
       guidelines, which apply to different types of
       construction and implement different statutory
       requirements for new construction, does not bind this
       Department in regulating under the ADA. . . .

        The limited structural impracticability exception
       means that it is acceptable to deviate from accessibility
       requirements only where unique characteristics of
       terrain prevent the incorporation of accessibility
       features and where providing accessibility would
       destroy the physical integrity of a facility. A situation in
       which a building must be built on stilts because of its
       location in marshlands or over water is an example of
       one of the few situations in which the exception for
       structural impracticability would apply.

        This exception to accessibility requirements should not
       be applied to situations in which a facility is located in
       "hilly" terrain or on a plot of land upon which there are
       steep grades. In such circumstances, accessibility can
       be achieved without destroying the physical integrity of
       a structure, and is required in the construction of new
       facilities.

28 C.F.R. S 36, App. B., at 649 (emphasis added).

                               19
This passage indicates that public accommodations
cannot demonstrate structural impracticability merely by
providing evidence of a slope of over 10%. Yet, this is
precisely how the E-Centre tries to show that "it is
impossible to make the lawn area wheelchair accessible."
Appellees' Br. at 48-49 (relying solely on the fact that the
lawn area has a slope ranging from 12-15%). The E-Centre
has presented no argument as to why it cannot provide a
ramp or a lift that would enable wheelchair users to reach
the lawn area.13 Moreover, Caruso has introduced affidavits
from people who have visited other concert venues with
sloping grass areas that are wheelchair accessible. J.A.
210-11.

Not surprisingly, the E-Centre does not focus on the
"structural impracticability" issue, and instead presses two
other arguments. First, it contends that it need not provide
wheelchair access to the lawn area because the DOJ
Standards only require wheelchair seating to be provided
when there is fixed seating for the general public. See
Appellees' Br. at 46-47; see DOJ Standard 4.1.3 (19). This
argument, however, misconstrues the issue being appealed.
Caruso is not asking that the E-Centre be required to
construct wheelchair seating areas on the lawn that comply
with the various requirements governing fixed seating plans.14
Rather, he is merely seeking an accessible route to the lawn
area. Caruso is entitled to such a route under the
_________________________________________________________________

13. The E-Centre incorrectly asserts that the Standards prohibit ramps
to have a slope of more than 2%. The correct figure is 8.3%. Standard
4.8.2. In any event, this number is irrelevant. Caruso is not asking for
a ramp that runs up the lawn area. Rather, he merely wants a ramp or
lift that will provide him with access to the lawn area.

14. Thus, there is no basis for the E-Centre's fear that it will have to
"flatten the lawn area, cover it in concrete, and divide it into seating
rows
to make it wheelchair accessible." See Appellee's Br. at 49. In fact, it
is
unlikely that such a requirement could ever be imposed under the ADA
since Title III specifically provides that facilities can refrain from
making
modifications that "would fundamentally alter the nature of such . . .
facilities." 42 U.S.C. S 12182(b)(2)(A)(ii). In any event, Caruso has made
it clear that he is not seeking access to the lawn areas so that he can
sit in his wheelchair on a concrete slab. Rather, he desires access so
that he can "enjoy a concert on [the] grass or a blanket" while picnicking
with family and friends. Appellants' Br. at 13.

                               20
regulations regardless of whether or not the facility is also
required to meet the more specific DOJ Standards
concerning fixed seating plans. See 28 C.F.R. S 36.401(c)(2)
("[A]ny portion of the facility that can be made accessible
shall be made accessible to the extent that is not
structurally impracticable."); 

App. A, Standard
4.1.1(5)(a) (same); 

("At least one
accessible route . . . shall connect . . . accessible spaces
that are on the same site."). Accordingly, we reject the
argument that assembly areas without fixed seating need
not provide access to people in wheelchairs.

The E-Centre's other justification for failing to provide
access is based on the "Equivalent Facilitation" provision in
the DOJ Standards. It states:

       Departures from particular technical and scoping
       requirements of this guideline by the use of other
       designs and technologies are permitted where the
       alternative designs and technologies used will provide
       substantially equivalent or greater access to and
       usability of the facility.

DOJ Standard 2.2. The E-Centre contends that it has
provided "equivalent facilitation" for wheelchair users by
placing additional wheelchair locations in the interior
pavilion. See Appellees' Br. at 47-50. The District Court
agreed and granted summary judgment for the E-Centre on
this basis.

The principal problem with the E-Centre's "equivalent
facilitation" argument is that it treats the ADA's
requirement of equal access for people with disabilities as
a "particular technical and scoping requirement." This is
simply not the case. Rather, equal access is an explicit
requirement of both the statute itself and the general
provisions of the DOJ's regulations. See 42 U.S.C. S 12183;
28 C.F.R. S 36.401. Properly read, the "Equivalent
Facilitation" provision does not allow facilities to deny
access under certain circumstances, but instead allows
facilities to bypass the technical requirements laid out in
the Standards when alternative designs will provide
"equivalent or greater access to and usability of the facility."
Therefore, we conclude that the E-Centre cannot rely on the

                                21
"Equivalent Facilitation" provision to excuse its failure to
provide any wheelchair access to an assembly area that
accommodates 18,000 people.

Furthermore, as noted by Caruso in his appellate brief,
the language of Title III itself precludes a reading of the
"Equivalent Facilitation" provision that would allow venues
to restrict wheelchair access to certain areas based on a
belief that wheelchair users will be better off elsewhere. See
42 U.S.C. S 12182 (b)(1)(A)(iii) (discriminatory to provide a
separate benefit unless necessary to provide equal benefit);

(benefits of a public accommodation must be
provided in the most integrated setting appropriate to the
needs of the individual). As the DOJ explains in its
commentary:

       Taken together, [the statutory and regulatory
       provisions concerning separate benefits and integrated
       settings] are intended to prohibit exclusion and
       segregation of individuals with disabilities and the
       denial of equal opportunities enjoyed by others, based
       on, among other things, presumptions, patronizing
       attitudes, fears, and stereotypes about individuals with
       disabilities. Consistent with these standards, public
       accommodations are required to make decisions based
       on facts applicable to individuals and not on the basis
       of presumptions as to what a class of individuals with
       disabilities can or cannot do. . . . Separate, special, or
       different programs that are designed to provide a
       benefit to persons with disabilities cannot be used to
       restrict the participation of persons with disabilities in
       general, integrated activities.

28 C.F.R. S 36, App. B., at 622.

The District Court, in concluding that the E-Centre had
not violated Title III by failing to provide access to the lawn
area, appeared to give precisely the type of justification that
the DOJ commentary finds repugnant to the ADA:

       The E-Centre provides the disabled with higher quality
       (i.e. closer) seats in the pavilion for the same price as
       lawn seats. Plaintiffs do not offer any reasons why the
       interior seats are not equivalent or superior to lawn
       seating. In our view, the E-Centre provides equal, if not

                               22
       greater, access to its facility for wheelchair users in the
       interior than it does for non-wheelchair users on the
       

. On appeal, the E-Centre reiterates
this argument that it is acceptable to restrict wheelchair
users from the lawn area because they provide "higher
quality (i.e. closer) seats in the pavilion." Appellees' Br. at
49. We reject this contention as inconsistent with the plain
language of Title III. See 42 U.S.C.S 12182(b)(1)(c)
("Notwithstanding the existence of separate or different
programs or activities . . . an individual with a disability
shall not be denied the opportunity to participate in such
programs or activities that are not separate or different.").
We further conclude that the only way the E-Centre can
justify its failure to provide access to the lawn area is by
showing structural impracticability. Since the E-Centre has
not yet made such a showing, we reverse the grant of
summary judgment on Caruso's lawn-access claim and
remand for further proceedings related to this claim.

II.

For the reasons explained above, we affirm the decision
of the District Court in part, and we reverse in part, and we
remand for further proceedings consistent with this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               23