Differing Legal Decisions Create Confusion
The ADA: A Crying Example of
the Need For Regulatory Reform
by Steven John Fellman
NATO Washington Counsel
In 1991, Congress passed the Americans with Disabilities
Act (ADA) and directed the Access Board to set minimum
standards for accessible facilities such as motion picture
theatres. In 1992, the Access Board published its minimum
standards now known as the ADA Accessibility Guidelines
(ADAAG). These standards were relatively clear and building
owners operating public facilities understood their responsibilities
under the law. Since 1991, there have been new developments
in building design and new concepts on how to make facilities
accessible for persons with disabilities. In 1999, the
Access Board published a “Notice of Proposed Rulemaking” to
modify the ADAAG and bring this regulation up to date.
It is now 2003. The proposed revised ADAAG
lies languishing, tied up in bureaucratic red tape. Best
estimates are that
a new enforceable regulation will not come down until 2005
or 2006.
The inability of the Department of Justice
and the Access Board to modify the ADA regulations has
resulted in confusion
and uncertainty for operators of public facilities – and
frustration for people with disabilities trying to get
the regulations amended to reflect new technologies and
new concepts of accessible design.
The best example of this failure of the
regulatory process relates to the motion picture theatre
industry and stadium-style
seating. When the original ADAAG was finalized, there were
no stadium-style motion picture theatres. The regulations
gave motion picture theatre operators wide latitude as
to where to place wheelchair seating. NATO had a series
of meetings with the Department of Justice and, as a result
of these meetings, it was generally accepted that wheelchair
seating in sloped floor theatres of under 300 seats could
be placed in the rear row of the auditorium. Theatres were
built in accord with this understanding and there were
few complaints from persons with disabilities, theatre
operators or the government.
The results of these litigations have been a series
of decisions that range the gamut from holding that
motion picture theatres can place wheelchair seating
anyplace in the auditorium within the general seating
footprint as long as there is an unobstructed view
of the screen, to a decision requiring that a chain
rebuild all of its theatres and place wheelchair seating
in the top half of the stadium section of each auditorium |
In 1995, theatre operators began constructing
theatres with stadium-style seating. Since wheelchair-bound
patrons
obviously cannot move up steps, wheelchair locations were
provided on the level of the entrance ramp into the theatre
auditorium. In the initial theatre designs, the entrance
level was at the front of the theatre and wheelchair locations
were placed in the front of the theatre. Architects and
theatre designers agreed that the ADA regulations gave
theatre operators latitude to place wheelchair seating
any place within the seating footprint of the theatre provided
that wheelchair patrons had an unobstructed view of the
screen. Wheelchair patrons objected to front row seating.
They claimed that they were uncomfortable sitting in the
first row of the theatre and wanted seating located further
back in the auditorium. If the theater design was a split
floor design including both sloped floor and stadium style
seating, wheelchair patrons asked that wheelchair seating
be located on a riser so that they could get the advantage
of better lines of sight over the head of the person in
the row in front of them.
Disabled persons filed complaints with the
Department of Justice and soon almost every major chain
in the industry
was under investigation. On a voluntary basis, theatre
companies began to change the design of stadium-style theatres.
Wheelchair seating locations were moved farther back into
the auditorium and placed on risers. The Department of
Justice investigations continued. At different times, the
Department of Justice made different arguments as to where
wheelchair seating should be located.
In order to get some clarification of the
issue and to resolve the multiple litigations that were
being filed,
in August 1999 NATO filed a Citizens Petition with the
U.S. Attorney General requesting that the Department of
Justice issue a rule defining where wheelchair seating
should be located in a stadium-style motion picture theatre.
NATO recommended that the rule require that wheelchair
seating be located on a riser, at least one-third of the
way back from the screen, and that the vertical angle of
sight at the wheelchair locations be no greater than 35
degrees measured in accord with a system defined in NATO’s
proposal. NATO also recommended that the wheelchair seating
be located within a horizontal cone defined in such a manner
to avoid criticism that wheelchair patrons were being placed
in less desirable seating locations. The Department of
Justice refused to act on NATO’s recommendations.
Instead, the department started a pattern of litigation
which has only increased the confusion of theatre operators,
heightened the frustration of disabled people, and caused
both the government and motion picture theatre companies
to spend literally millions and millions of dollars in
litigation costs. The results of these litigations have
been a series of decisions that range the gamut from holding
that motion picture theatres can place wheelchair seating
anyplace in the auditorium within the general seating footprint,
as long as there is an unobstructed view of the screen
(Lara vs. Cinemark, U.S. Court of Appeals, 5th Circuit;
U.S. vs. Cinemark, U.S. District Court, District of Ohio;
OPVA vs. Regal, U.S. District Court, Oregon) to a decision
requiring that a chain rebuild all of its theatres and
place wheelchair seating in the top half of the stadium
section of each auditorium (U.S. vs. AMC, U.S. District
Court, California).
In the middle are two district court decisions
that have specific holdings that would be very difficult
to apply
in terms of reviewing a set of architect’s plans.
In Meineker vs. Hoyts, a U.S. district court judge in New
York held that wheelchair seating could not be placed in
the front rows of the auditorium – but wheelchair
seating located just before a cross aisle of an auditorium
several rows back from the screen met the requirement of
the regulations. In Meineker, the court did not require
that the wheelchair seating be placed on a riser.
Finally comes the decision of a U.S. district
court judge in Boston in the case of U.S. vs. National
Amusements and
Hoyts. In that case, the court said that wheelchair seating
had to be in the section of the auditorium having the highest
risers but that wheelchair seating could not be on a cross
aisle. The judge was oblivious to the fact that anytime
you place wheelchair seating on risers, you need 48 inches
in depth for the wheelchair space plus a path of travel
in front of or behind the wheelchair space, so essentially
you’ve created a cross aisle. On the plus side, the
judge in U.S. vs. National Amusements and Hoyts refused
to apply the ruling retroactively saying that the Department
of Justice never gave the industry notice of its position.
These litigations represent the ultimate
travesty of justice. No one can benefit from these litigations
as no theatre
chain could afford to rebuild all of its stadium-style
auditoria. The only meaningful remedy is prospective
not retroactive. All these litigations do is extend time
for
solving a very solvable problem.
NATO has continually pressured the Department
of Justice to sit down and try to resolve this issue on
a reasonable
basis. Theatres that are being built today provide
wheelchair patrons with excellent wheelchair seating locations
and
a most enjoyable viewing experience.
When Congress passed the ADA, it recognized
that issues like the location of wheelchair seating in
a movie
theatre were issues that should be decided by regulation
after
notice and comment rulemaking. Twelve years have
gone by since the act was passed. We still have no meaningful
rule
to cover the location of wheelchair seating in stadium-style
motion picture theatres. Unless the Department of
Justice
agrees to step up to the plate and have meaningful
discussions regarding this issue, it will take another
10 years and
a Supreme Court decision before the matter is resolved.
What a waste of time, effort and money. 
