Decision in U.S. District
Court for the Central District of California
Appeals Court Rules
on
Wheelchair Placement
by Steven John Fellman
NATO Washington Counsel
For almost 10 years, the motion picture theatre
industry has been fighting with the Department of Justice
and disability
rights groups to come up with some reasonable solution
for locating wheelchair seating spaces in stadium-style
motion picture theatre auditoria. The battle has moved
through state courts, to U.S. district courts, to U.S.
courts of appeals, to the Access Board, to the American
National Standards Institute, and ultimately to a petition
NATO filed with the U.S. attorney general asking for a
rule so all could understand what the law required.
On Aug. 13, the latest in a series of judicial
decisions on this issue was published by the U.S. Court
of Appeals
for the 9th Circuit. In this decision, Oregon
Paralyzed Veterans of America v. Regal Cinemas, Inc. et
al., the
court, by a 2-1 decision, held that the wheelchair locations
in certain Regal stadium style theatres did not meet the
requirements of the Americans With Disabilites Act (ADA).
In dissent, Judge Andrew J. Kleinfeld stated: “The
majority sets up a conflict with the 5th Circuit, adopts
an unreasonable construction of the applicable regulations,
and puts theatre owners in a position of impossible uncertainty
as to what they must do to comply with the law.
| In dissent, Judge Andrew J. Kleinfeld stated: “The
majority sets up a conflict with the 5th Circuit, adopts
an unreasonable construction of the applicable regulations,
and puts theatre owners in a position of impossible
uncertainty as to what they must do to comply with
the law.” |
The motion picture theatre industry has
been trying to ascertain its obligations under the ADA
regulations – section
4.33.3 of the ADA Accessibility Guidelines (ADAAG) – for
almost 10 years. Prior to the popularization of stadium-style
seating, there were no issues regarding the location of
wheelchair seating in motion picture theatres. Most auditoria
of under 300 seats located the wheelchair spaces at the
rear of the auditorium. There was logic to this position.
Wheelchair locations had to be on a level surface. Since
the auditorium floor was sloped, the only level area was
either at the rear or the front of the auditoria. Since
the entrances to these auditoria were almost always at
the rear, it was a simple matter to place wheelchair seating
at the rear, providing wheelchair users with access to
a means of egress as required by the regulations.
When the ADA regulations were drafted, exhibitors
were not building stadium-style theatres and the regulations
did not contemplate this type of construction. When the
first stadium-style theatres were built, patrons entered
through the front of the auditorium. In auditoria of under
300 seats, there was no rear exit. If the construction
design was a full stadium-style design, wheelchair spaces
were placed in the front of the auditorium, which had the
only level floor area and also was close to the only accessible
means of egress as required by the statute. If the auditorium
design included both sloped floor seating and stadium style
seating, the wheelchair spaces were either in the front
of the auditorium or someplace towards the rear of the
sloped-floor seating.
Persons with disabilities objected to sitting
in the front row of stadium style theatres. They claimed
that the seating
was uncomfortable and violated the ADA regulations.
The Department of Justice began a series
of investigations and courts began to issue rulings.
In one of the first cases, Lara
v. Cinemark,
the District Court held that some of Cinemark’s wheelchair
locations met the requirements of the statute but others
did not.
The case was appealed to the U.S. Court of Appeals for
the 5th Circuit. The 5th Circuit looked at the regulations and said that any
wheelchair seating locations within the general footprint of the theatre seating
and which provided an unobstructed view of the screen met the requirements
of the ADA regulations. The U.S. 5th Circuit decision was a unanimous decision
of three Federal Court of Appeals judges who looked at Section 4.33.3 of the
regulations and held that as long as there was an unobstructed view of the
screen and the wheelchair seating locations were within the general seating
footprint of the theatre, there was no ADA violation.
This same logic was adopted by a U.S. District
Court judge in Oregon, in the case of Oregon
Paralyzed Veterans v. Regal, and a U.S. District Court judge
in Ohio in the case of U.S.
v. Cinemark. In the case of Meineker
v. Hoyts,
a U.S. District Court judge in New York took a slightly different approach.
He ruled that where auditoriums have both sloped floor seating and stadium
style seating, locating the wheelchair seating at the rear of the sloped
floor sections of the auditorium complied with the ADA.
Following the Meineker decision, a U.S.
District Court judge in Boston again looked at the same
question. In his decision, he held that you really couldn’t
tell what Section 4.33.3 of the ADAAG meant as applied to stadium-style
theatres just by reading the regulation. However, he said
that the Department of Justice
defined what the regulation meant when it filed a lawsuit against Hoyts
and National Amusements. Since the Department of Justice
had the right (according
to this judge) to define what the regulation meant, any theatres built
by those companies after the time that the lawsuit was
filed had to comply with the
Department of Justice’s position. He then went on to define the Department
of Justice position in such a way that it would be extremely difficult,
if not impossible, to construct stadium style theatres.
Finally, in California, a U.S. District
Court judge said that Section 4.33.3 of the ADAAG means
whatever the Department of Justice says it means. Further,
regardless of whether the department had ever announced what it means,
all AMC theatres must comply in some way with Section 4.33.3 regardless
of when
they were built. It is still unclear as to exactly what kind of a remedy
this judge would apply to existing stadium style theatres.
The decisions of all the District Court
judges were appealed. The U.S. v.
Cinemark case was appealed
to the 6th Circuit Court of Appeals and
no decision
had yet
been announced.
The Meineker v. Hoyts case was appealed
to the U.S. Court of Appeals for the 2nd Circuit. The 2nd
Circuit was concerned as to whether or
not the
Department of Justice’s position with regard to the meaning
of Section 4.33.3 had ever been made known to the industry. So the
Court of Appeals sent the case
back to the trial judge to review the question of whether the Department
of Justice ever informed the industry as to what its position was
with regard
to the regulation.
The Boston case, U.S.
v. Hoyts and National Amusements has been appealed to the U.S. Court of Appeals
for the 1st Circuit. A decision in that
case will
probably not come out until the end of the year.
This leaves us with the present quandary.
The 5th Circuit says put wheelchairs anyplace with an unobstructed
view. The 1st Circuit,
2nd Circuit and
6th Circuit are still considering the issue. The 9th Circuit
has a split opinion,
which
according to the dissenting judge is ambiguous. Judge Kleinfeld
stated: “If
a judge on the panel cannot say just what is required [by this decision], how
can a movie theatre owner? It is irresponsible to impose on the country a decision
that will require of an industry so much reconstruction, without clear guidance
on what must be done.”
As an agency, the Department of Justice
has a responsibility to not only disabled persons, but
also to operators of public
accommodations
such
as theatre owners.
Soon NATO will be sitting down with the Department of Justice
in an effort to work out a reasonable understanding of where
wheelchair
locations
should be placed in stadium style theatres. It is hoped that
by negotiations,
we can settle this issue once and for all for the benefit of
disabled persons,
theatre
owners and the general public. 
Oct. 29 Panels To Discuss Violence In Media
NATO Reps To Attend
FTC Workshop in D.C.
A number of NATO
representatives, including association president John Fithian,
will testify before
an Oct. 29 Federal Trade Commission (FTC) workshop designed
to provide a forum for, according to a commission announcement, “discussing
the state of self-regulation in the entertainment industry
and, in particular, children’s access to products
that have been rated as potentially inappropriate for them
or have been labeled with a parental advisory.”
Workshop panels will also feature other
members of entertainment industry groups, rating and labeling
organizations, retailers
and retailer trade associations, parent and consumer
advocacy groups and other interested parties. There also
will be
an overview of the research on the effects of violent
media on children.
