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November 8, 1993

INTERNATIONAL HOUSE OF PANCAKES FRANCHISEE, et al., Defendants. MAJID ZAHEDI doing business as INTERNATIONAL HOUSE OF PANCAKES, Counterclaimant, v. THEODORE A PINNOCK, and DOES 1 THROUGH 50, Counterdefendants, and THE UNITED STATES OF AMERICA, Counterdefendant-Intervenor.

The opinion of the court was delivered by: RHOADES

 I. Background

 Plaintiff, Theodore A. Pinnock ("Pinnock") filed the complaint in this action against Defendant, Majid Zahedi, owner of an International House of Pancakes franchise ("Zahedi"). Pinnock, an attorney representing himself, is unable to walk and uses a wheelchair. Pinnock dined at the defendant's restaurant on June 21, 1992, and then attempted to use the restroom. The entrance to the restroom, however, was not wide enough to admit his wheelchair. Pinnock therefore removed himself from his wheelchair and crawled into the restroom. As a result of this encounter, Pinnock alleges nine causes of action against Zahedi. Five of the causes of action arise under state law, alleging violations of the state health and safety code, the Unruh Civil Rights Act, and infliction of emotional distress. The remaining four causes of action are alleged under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), arising from Zahedi's alleged failure to comply with the statute's provisions governing access for disabled individuals in public accommodations ("title III"). *fn2"

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

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

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

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

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

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

 379 U.S. at 300. Thus, regardless of Zahedi's individual circumstances, he is subject to Commerce Clause regulation as a member of the restaurant industry.

 Even aside from its membership in an interstate industry, Zahedi's restaurant demonstrates characteristics which place it squarely in the category of interstate commerce. It is a franchise of a large, international, publicly traded corporation ("IHOP Corp."), organized under Delaware law. IHOP Corp. had total retail sales of $ 479 million in 1992, operates 547 franchises in thirty-five states, Canada, and Japan, and employs 16,000 persons. *fn3" Furthermore, Zahedi's restaurant is located directly across the street from State Highway 163, and within two miles of two interstate highways. There are three hotels within walking distance, and three motels within one and one-half miles of the restaurant. *fn4" The courts have found these facts to be indicia of a business operating in interstate commerce. See Katzenbach, 379 U.S. at 127 (restaurant on state highway, 11 blocks from interstate highway, affected commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964) (motel two blocks from downtown road and "readily accessible" to two intrastate and two interstate highways affected commerce); Miller v. Amusement Enters., Inc., 394 F.2d 342, 345 (5th Cir. 1968) (amusement park 150 yards from interstate highway affected commerce).

 Congressional enactment of title III of the ADA was well within Congress' power to regulate interstate commerce under the Commerce Clause. As part of the restaurant industry, Zahedi is subject to the provisions of title III, which by its own terms, reaches as broadly as the Commerce Clause permits. *fn5" As a member of the restaurant industry and as an individual enterprise which caters to travelers, Zahedi's restaurant is properly regulated by title III of the ADA.

 III. Title III of the ADA is Not Unconstitutionally Vague

 Zahedi argues that many of the terms used in section 12182(b)(2) of title III are unconstitutionally vague and are therefore in violation of the Due Process Clause of the Fifth Amendment. Statutes which fail to adequately specify the actions or conduct necessary to conform with the law pose problems for which the Supreme Court has expressed serious concern. *fn6" However, the terms with which Zahedi takes issue do not deprive private businesses of the ability to steer between lawful and unlawful conduct. To the contrary, the statute, its preamble, the legislative history, and the accompanying guidelines provide more than ample explanation of the statute's application.

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

 Vagueness challenges are considered under varying standards, depending upon the nature of the statute. Statutes which threaten to inhibit freedom of speech or other constitutionally protected rights face a more stringent vagueness test. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 & n.7, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982); Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964). Criminal statutes, in general, face a higher vagueness standard than do civil statutes: "The Court has . . . expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Hoffman Estates, 455 U.S. at 499. See Winters v. New York, 333 U.S. 507, 515, 92 L. Ed. 840, 68 S. Ct. 665 (1948) (where a statute imposes criminal penalties, the standard of certainty is higher). *fn7"

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

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

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

 Title III of the ADA is a civil statute regulating commercial conduct. *fn8" As such, Zahedi can successfully sustain its challenge only if he can prove that the enactment specifies "no standard of conduct . . . at all." Hoffman Estates, 455 U.S. at 489 & n.7. See also Coates v. City of Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971) (invalidating criminal statute found to be vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."); Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 121, 18 L. Ed. 2d 661, 87 S. Ct. 1563 (1967) (to violate due process, a statute must be "so vague and indefinite as really to be no rule or standard at all").

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

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

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

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

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

 1. Readily Achievable Barrier Removal

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

 In addition, the federal regulation further elucidates the term "readily achievable" by adding other factors. These include the overall financial resources of the parent corporation and safety requirements. 28 C.F.R. § 36.104, at 460-61 (1991). The regulation lists 21 examples of barrier removal likely to be "readily achievable" in many circumstances, such as installing ramps and repositioning shelves and telephones. See id. § 36.304(b), at 466, & app. B, at 576-77.

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

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

 Id. at § 36.104, app. B, at 577.

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

 2. Alternatives to Barrier Removal

 Title III provides that where barrier removal is not readily achievable, a covered entity must make its goods or services available through "alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v) (Supp. II 1990). The legislative history, the regulation itself, and the preamble all provide specific examples of appropriate alternatives to barrier removal. These include providing curb service or home delivery, coming to the door of the facility to handle transactions, serving beverages at a table for persons with disabilities where a bar is inaccessible, providing assistance to retrieve items from inaccessible shelves, and relocating services and activities to ...

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