UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) No.

: CV96-5012 versus ) ) COMPLAINT DAYS INNS OF AMERICA, INC., ) HOSPITALITY FRANCHISE ) SYSTEMS, INC., RICHARD HAUK, ) KARLA HAUK, DAVID BAUMANN d/b/a ) CAD DRAFTING PLUS, and ) DOUBLE H ENTERPRISES, INC., ) ) Defendants. ) ) The United States of America alleges: 1. This action is brought by the United States to enforce title III of the Americans with Disabilities Act of 1990 (the "ADA" or the "Act"), 42 U.S.C. SS 12181 through 12189, against a. Days Inns of America, Inc. ("DIA"), the licensor of the Days Inn chain of economy hotels, including the Days Inn hotel on 10th Avenue in Wall, South Dakota; b. Hospitality Franchise Systems, Inc. ("HFS"), the parent company of defendant DIA; c. Richard and Karla Hauk, owners of the Days Inn hotel in Wall; d. David Baumann, d/b/a CAD Drafting Plus ("Baumann"), the architect of and for the Days Inn hotel in Wall; and e. Double H Enterprises, Inc., ("Double H"), the general contractor of and for the Days Inn hotel in Wall. 01-01312

2. This court has jurisdiction of this action under 42 U.S.C. S 12188(b)(1)(B) and 28 U.S.C. SS 1331 and 1345. The court may grant declaratory and other relief pursuant to 28 U.S.C. SS 2201 and 2202. 3. Defendant HFS is a Delaware corporation with its principal place of business at 339 Jefferson Road, Parsippany, New Jersey 07054. 4. Defendant DIA is a Delaware corporation with its principal place of business at 339 Jefferson Road, Parsippany, New Jersey 07054. Defendant DIA is a wholly owned subsidiary of defendant HFS. 5. Defendants Richard Hauk and Karla Hauk are individuals who, upon information and belief, reside in Wall, South Dakota. Their mailing address is Box 424, Wall, South Dakota 57790. 6. Defendant David Baumann is an individual residing in North Dakota. He does business as CAD Drafting Plus, which, upon information and belief, has its principal place of business at 3545 46th Street, NW, Fargo, North Dakota 58102. 7. Defendant Double H is a Minnesota corporation with its principal place of business at Rural Route No. 4, Box 239, Pelican Rapids, Minnesota 56572. 8. Venue is proper in this district. A substantial part of the events and omissions giving rise to this action occurred in this district. In addition, upon information and belief, defendants Richard and Karla Hauk reside in this district. Complaint Page 2 01-01313

9. Defendant DIA and, upon information and belief, defendant HFS, operate a system of approximately 1,500 hotels throughout the United States under various trade and service names and marks including "Days Inn," "Days Hotel," "Days Suites," "DayStops," "Days Lodge," and others (collectively, the "Days Inn system"). Defendants DIA and HFS do not own any of the hotels that participate in the Days Inn system; rather, DIA has entered into and maintains license agreements (the "license agreements") with the owners or the agents of the owners of each facility that participates in the Days Inn system. 10. One of the hotels in the Days Inn system is the newly constructed Days Inn hotel in Wall, South Dakota (the "Wall Days Inn" or "the hotel"). The mailing address for the Wall Days Inn is Box 424, Wall, South Dakota 57790. 11. The Wall Days Inn is a non-residential facility whose operations affect commerce. As such, it is a commercial facility within the meaning of section 303(a) of the Act. 42 U.S.C. S 12183(a). In addition, because the Wall Days Inn is a place of lodging, it is also a public accommodation within the meaning of section 303(a) of the Act. Id. 12. The last building permit for the Wall Days Inn was applied for on or about December 8, 1992. 13. No certificate of occupancy for the Wall Days Inn was required or issued. Upon information and belief, the hotel was first occupied on or after July 1, 1993. Complaint Page 3 01-01314

14. Defendants Richard Hauk and Karla Hauk own the Wall Days Inn, and initiated, contracted for, or participated in all aspects of the design and construction of the hotel. 15. Defendant Baumann is an individual engaged in the business of providing architectural and design specification services. Baumann participated in the design and construction of the Wall Days Inn by designing the hotel pursuant to a contract with defendant Richard Hauk. 16. Defendant Double H is a private entity engaged in the business of providing general contracting and consulting services. Double H participated in the design and construction of the Wall Days Inn by constructing the hotel pursuant to a contract with defendant Richard Hauk, serving as general contractor for the hotel. 17. Defendants DIA and HFS controlled or participated in the design and construction of the Wall Days Inn. Among other things, DIA or HFS or both of them a. developed standard site plans, building plans,

room details, and other architectural drawings and specifications for new Days Inn facilities; b. upon information and belief, furnished standard plans, drawings, and specifications to defendant Baumann, for use in designing the Wall Days Inn; c. furnished defendant Richard Hauk with a conceptual site plan for the Wall Days Inn; Complaint Page 4 01-01315

d. by means of the license agreement, required defendants Richard and Karla Hauk to design the hotel to conform to the plans, drawings, and specifications contained in the design standards prepared by DIA and HFS; e. by means of the license agreement, required defendants Richard and Karla Hauk, prior to construction of the Wall Days Inn, to submit to DIA for DIA's review and approval the facility's site plan, working drawings, and

detail specifications; f. reviewed and approved architectural plans or drawings for the Wall Days Inn prior to construction of the hotel; g. by means of the license agreement, required defendants Richard and Karla Hauk to construct the Wall Days Inn in accord with the plans and drawings approved by DIA; h. by means of the license agreement, required defendants Richard and Karla Hauk, upon completion of construction, to obtain from DIA a final approval of the facility before the hotel could begin operating as part of the Days Inn system; and i. upon information and belief, have inspected the Wall Days Inn on several occasions since its completion. 18. The Wall Days Inn is not readily accessible to or usable by individuals with disabilities, as required by section 303(a)(1) of the Act, 42 U.S.C. S 12183(a)(1). The hotel fails Complaint Page 5 01-01316

in numerous respects to comply with the Department of Justice's regulation implementing title III of the ADA, 28 C.F.R. Part 36, ("the regulation"), including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). See 28 C.F.R. SS 36.401, 36.406. 19. Illustrative examples of the failures of the Wall Days Inn to comply with the requirements of the Act, the regulation, and the Standards include, but are not limited to, the items set forth below. "Accessible," as used below, means "readily accessible to and usable by individuals with disabilities," as required by section 303(a)(1) of the Act, 42 U.S.C. S 12183(a)(1), and as specified by the Standards. a. The hotel has no accessible entrance. The front entrance to the lobby is not accessible because the walkway leading up to the front doors slopes away from the doors, making it difficult or impossible for wheelchair users to stop and open the door without rolling away from the door. See Standards S 4.13.6. The rear entrance to the lobby can only be reached by means of five steps, which connect the rear entrance to the rear parking lot. See Standards S 4.3.8. b. Guests with disabilities at the Wall Days Inn do not have the same choice of accommodations afforded to other guests. The hotel has guest rooms with two beds, but all of Complaint Page 6 01-01317

the guest rooms designated for use by individuals with disabilities have only one bed. See Standards S 9.1.4. c. The guest rooms that are designated for use by individuals with disabilities are not accessible, because various operating controls, mechanisms, and features are mounted too high to be reached by an individual using a wheelchair, are blocked by the placement of the beds, tables, or other furniture, or require tight grasping, pinching, or twisting of the wrist, which is difficult or impossible for individuals with limited manual dexterity, including many individuals with paraplegia or quadriplegia. As a result, many individuals with disabilities will not be able, in these guest rooms, to turn the doorknobs on the guest room doors, operate the room's heating and airconditioning unit, or use the clothes rod and shelf. See Standards SS 4.13.9, 4.25.3, 4.27.4, 9.2.2(2). d. The hotel has three floors, but has no elevator. See Standards S 4.1.3(5). As a result, many individuals with mobility impairments will have no access to the guest rooms on the hotel's upper floor, or to the spa, sauna, restrooms, or other rooms and spaces on the hotel's basement level. e. The hotel has no accessible parking spaces. While two parking spaces are designated for use by individuals with disabilities, neither of those spaces is accessible, Complaint Page 7 01-01318

because neither has an access aisle. In addition, one of the spaces is not level. The Standards require that an accessible parking space be level and have an access aisle (an area at least five feet wide next to and running the length of the parking space), so that individuals who use wheelchairs will be able to transfer safely from their cars to their wheelchairs and back again. If there is no access aisle, other cars may make it impossible to transfer, and if the parking space and access aisle are not level, a wheelchair will tend to roll away during the transfer. See Standards S 4.6.3. f. The doors to the bathrooms in the standard guest rooms -- that is, the guest rooms that are not designated for use by individuals with disabilities -- are too narrow. If someone who uses a wheelchair must stay in a nonaccessible guest room (if, for instance, the accessible guest rooms are already taken), or visits another guest in a non-accessible guest room, he or she will not be able even to enter the bathroom in that room. See Standards S 9.4. 20. The failures of the defendants to design and construct the Wall Days Inn to be readily accessible to and usable by individuals with disabilities constitute a pattern or practice of discrimination within the meaning of 42 U.S.C. S 12188(b)(1)(B)(i) and 28 C.F.R. S 36.503(a). Complaint Page 8

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21. In addition to constituting a pattern or practice of discrimination, the failures of the defendants to design and construct the Wall Days Inn to be readily accessible to and usable by individuals with disabilities constitute unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C. S 12188(b)(1)(B)(ii) and 28 C.F.R. S 36.503(b). PRAYER FOR RELIEF The United States prays that the Court: A. Declare that the defendants have violated title III of the Americans with Disabilities Act, 42 U.S.C. SS 12181 through 12189, and the regulations thereunder, 28 C.F.R. Part 36, by failing to design and construct a new facility for first occupancy after January 26, 1993, that is readily accessible to and usable by individuals with disabilities; B. Order the defendants to undertake whatever repairs,

rebuilding, or other remedial steps are necessary to bring the Wall Days Inn into full compliance with the requirements of title III of the ADA and the Department of Justice's regulation implementing title III, including the Standards for Accessible Design; C. With respect to any facilities that they may design and construct in the future, order the defendants to design and construct those facilities in such a manner that they will be Complaint Page 9 01-01320

readily accessible to and usable by individuals with disabilities, as required by section 303(a) of title III of the ADA, 42 U.S.C. S 12183(a), sections 36.401 and 36.406 of the title III regulation, 28 C.F.R. SS 36.401 and 36.406, and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A; D. Assess a civil penalty against each defendant in an

amount authorized by 42 U.S.C. S 12188(b)(2)(c), to vindicate the public interest; and Complaint Page 10 01-01321 E. Order such other appropriate relief as the interests of justice may require. JANET RENO Attorney General By: KAREN E. SCHREIER DEVAL L. PATRICK United States Attorney Assistant Attorney General District of South Dakota Civil Rights Division DIANA RYAN JOHN L. WODATCH, Chief Assistant U.S. Attorney L. IRENE BOWEN, Deputy Chief 317 Federal Building Disability Rights Section and Courthouse Civil Rights Division Rapid City, South Dakota 57709 (605) 342-7822 THOMAS M. CONTOIS ALYSE S. BASS KEN S. NAKATA Attorneys Disability Rights Section Civil Rights Section U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-6738 (202) 514-6014 (202) 616-9511 (202) 307-2322 Complaint Page 11 01-01322