by
Steven John Fellman
NATO Washington Counsel
The
Department of Justice has continued its aggressive litigation
against motion picture theatre companies. The issue that
the government has focused upon is the location of wheelchair
seating in stadium-style motion picture theatres. Five major
litigations are in progress. In the U.S. district court
in Boston, the department has sued Hoyts and National Amusements,
alleging that wheelchair locations in their stadium-style
theatres do not meet the requirements of Section 4.33 of
the Americans with Disabilities Act (ADA) regulations. In
the Sixth Circuit Court of Appeals in Ohio, Justice is appealing
a district court decision in favor of Cinemark holding that
Cinemark’s stadium-style seating locations meet the
requirements of the ADA. In the Ninth Circuit Court of Appeals
in California, the Department of Justice and the Oregon
PVA are appealing a decision in favor of Regal holding that
Regal’s stadium-style seating locations meet the requirements
of the ADA.
In the U.S. district court in California, the department
is suing AMC alleging that AMC’s stadium-style seating
locations do not meet the requirements of the ADA.
So far,
two U.S. district court judges and the U.S. Court of Appeals
for the Fifth Circuit have held that the department’s
regulations governing wheelchair seating simply require
that wheelchair locations in movie theatres have an unobstructed
view of the screen and be located in the central seating
area of the auditorium. Two district court judges and the
Fifth Circuit Court of Appeals have found that the seating
locations in theatres owned by NATO members fully comply
with the law.
Justice
recently filed briefs in the Sixth Circuit and Ninth Circuit
Court of Appeals. The department alleges that the phrase
“comparable lines of sight” that appears in the
ADA regulations has a unique meaning well-known to all motion
picture theatre exhibitors and to all architects who design
motion picture theatres. The department contends that this
language means that a theatre operator must measure the
vertical angle of sight and the horizontal angle of sight
in every seat in an auditorium. In order for a wheelchair
patron to have a “comparable line of sight,” the
wheelchair patron must have sightlines that are as least
as good as the sightlines in 50 percent of the auditorium.
The department contends that all exhibitors and all architects
and designers of theatres knew what this language meant
as soon as it was published in the Federal Register. The
Department of Justice contends that even though this meaning
was clear, no one designed a theatre that met the requirements
of the regulations.
The
position of the government is absolutely absurd. It makes
no sense. It is completely detached from reality. First
of all, until the Department of Justice started this litigation,
there was no industry member, to our knowledge, that designed
motion picture theatre auditoria by measuring vertical angles
of sight and horizontal angles of sight. Second, there is
no widely accepted definition of how one would measure vertical
angle of sight or horizontal angle of sight. Third, there
is no way for determining what is the “best vertical
angle of sight or the best horizontal angle of sight.”
In a
motion picture theatre environment, if there was such a
thing as “best seat in the house,” this is the
seat that all patrons would choose immediately upon entering
the auditorium. Since motion picture theatres sell seats
on a first come first serve basis, that “best seat
in the house” would always be taken by the first person
entering the auditorium.
As every
exhibitor will tell you, individual patrons have individual
preferences as to where they want to sit. As a general rule,
kids like to sit in the front of the auditorium. People
who are far sighted tend to want to sit further back from
the screen. Some older patrons don’t like to walk up
steps in the dark and therefore tend not to sit high in
the stadium section. Teens in love tend to move towards
the least populated section of the auditorium.
All theatre auditoria are not alike. There are small, medium
size and large auditoria. There are certain auditoria that
are long and narrow and others that are short and wide.
People will have different preferences based on the individual
auditorium.
The
Department of Justice has a concept that the entire industry
knows that the best half of the seats in a stadium-style
auditorium are located in the top half of the stadium. There
is absolutely no support for this position. How the department
could argue that the top row of a stadium style theatre
contains preferable seating to the row in front of the midpoint
of the theatre is beyond comprehension.
During
the past several years, the department has spent millions
and millions of taxpayer dollars in support of this untenable
position. Several years ago, NATO filed a citizens petition
with Justice asking the department to issue a specific rule
with regard to wheelchair seating in stadium-style auditoria.
NATO recommended that wheelchair locations be at least one-third
of the way back from the screen and on a riser. NATO also
recommended that the wheelchair patrons be in a position
where they have a comfortable view of the screen and within
a horizontal cone that gave them good seats for the movies.
NATO asked the department to issue new regulations that
incorporated NATO’s concepts. The department refused
to even consider NATO’s proposal.
As a
result, the government has spent a tremendous amount of
time and money in attempting to get courts to imply a meaning
to a regulation that clearly is not within the scope of
the regulation. Not only is the meaning not within the scope
of the regulation, the meaning just doesn’t make sense.
The
government’s position has caused a waste of taxpayer’s
money. It doesn’t help disabled people. It doesn’t
help the government. It doesn’t help the industry.
NATO is doing its best to make sure that the Department
of Justice becomes accountable for this wasteful, nonsensical
effort. 
