Daily Development for Tuesday, December 2, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu DISABILITIES ACT; THEATERS: Sixth Circuit reviews U.S. Attorney position on theater seating for wheelchairs. U.S. v. Cinemark, 348 F.3d 569 (6th Cir. 11/6/03) A regulation adopted by the Department of Justice in 1991 provides that wheelchair areas in motion picture theater shall be "provided so as to provide people with disabilities . . . lines of sight comparable to those for members of the general public." ADAAG(1) Sec. 4.33.3. This regulation was adopted under the A.P.A. and was, as required by statute, consistent with guidelines established by the Architectural and Trasnportation Barriers Access Board (the Access Board") established under the ADA. Defendant Cinemark's theaters has relatively high-banked "stadium seating" in which approximately 70% of theater patrons sit. Then there are is a much flatter area just before the screen, with several rows of seats. Cinemark located the area for wheelchairs in the flat area, behind two rows of fixed seats, approximately one-third of the way back from the screen in the auditorium. Because of the high banking of the "stadium-style" seats comprising the balance of the theater, it is impossible for wheelchair users to navigate the steps and reach these areas. The trial court held that Cinemark had satisfied the Justice Department standard because the patrons in wheelchairs had the same line of sight as that provided for as many as 30% of the patrons in the theaters. The government argued that the location of the wheelchair area caused wheelchair bound patrons to strain their necks "resulting in severe discomfort and pain." The Justice Department demanded that patrons be provided with wheelchair accessible seating at least at the same level as the first row of stadium seats. Cinemark responded that it had already built a large number of theaters nationwide based upon its design model, which had been approved by a Texas code setting process for handicap accessible theaters, and that the Texas process had been undertaken with the knowledge and tacit consent of the Justice Department. The written standards adopted by the Texas board were modeled to the federal regulation, The DOJ issued a press release stating that Texas builders who follow Texas building codes "can be assured that they are complying with federal guidelines as well. . . Builders will also have additional legal protection in ADA lawsuits if they build in compliance with the certified code.". Cinemark argued that To rework its seating areas (which are built on concrete) at this point would be a huge effort, it argued, since it would have to provide some kind of ramp or elevator to get to the elevated level. There were also concerns about evacuation plans and other issues to be taken into account that would be complicated by the new requirements. The reason for the conflict between the Justice Department and the Texas certification is that in 1999, in connection with a notice of proposed rulemaking (on issues unrelated to this question), the Access Board indicated that it had become aware that the Justice Department was going to engage in "enforcement through litigation" and that it was considering whether to adopt new regulations consistent with the Justice Department position. It still has not adopted rules pursuant to that notice or any revision in the original guidelines. But in March of 1999, seven months before the Access Board notice, the DOJ already had sued Cinemark based upon a "pattern and practice of discrimination," seeking an injunction of new building practices in conformance with the Cinemark design approved in Texas and seeking damages for affected theater patrons and a civil penalty. (Yes, you read it right!!!) The Federal District Court found on summary judgment that Cinemark was in compliance with the standard set forth in Section 4.33.3. On appeal to the Sixth Circuit Court of Appeals: held: Reversed. The Sixth Circuit panel, reviewing de novo, concluded that the standard that line of sight must be similar to that of other patrons also included viewing angle, and that it is not enough to provide simply an unobstructed view, which is how Cinemark contended the rule should be read. Cinemark's position has already been upheld in another federal circuit, in Lara v. Cinemark, USA, Inc., 207 F.3d 783 (5th Cir. 2000). The Sixth Circuit bench noted that the Lara court apparently did not take into account language in the proceedings of the Access Board that discussed the problems of viewing angle. The fact that the Access Board acknowledged that it was considering new regulations didn't mean that the DOJ position was inconsistent with the present policies, said the court, only that the DOJ position made the Access Board's general policy statements more "specific." The Sixth Circuit pointed to a Ninth Circuit panel decision and several other district court opinions consistent with its view that the regulation required that the theater owner take into account viewing angle. The government, apparently, had argued that the viewing angle had to be equivalent to that of 50% of the theater patrons. The court refused to make such a finding, and remanded to the District Court to ascertain what approach might satisfy the viewing angle requirement.. Cinemark argued that the DOJ was going beyond its own regulation without a process adopting a new regulation. Maybe, responded the court, but that's perfectly OK. The Labor Department and SEC do it all the time. [Of course, notes the editor, those agencies normally are not dealing with ripping out multi-million dollar concrete installations.] What about the DOJ's tacit acceptance of the Texas process? The court stated that the government can't be estopped, but that there is a due process issue here somewhere. It stated that where due process concerns arise, "prospective relief often will be most appropriate." But did Cinemark have a good due process claim here? The court said that the DOJ made no warranties about the Texas approval, stating only that they would provide "rebuttable evidence" and that such approval would provide "additional legal protection." This, said the court, was less than complete protection. It nonetheless noted promises by the government at oral argument that it would "work with Cinemark to come up with a reasonable approach." Comment 1: The Editor is exorcized. What a crock for the government to take a position that it is "willing to be reasonable" and is only interested in fair play when it brought a suit for "pattern and practice" violations seeking civil penalties and individual damages. The government lost in the Fifth Circuit, but only in an amicus brief. Therefore, although it really had already lost the case, it was not bound by collateral estoppel. This is not a good situation for rulemaking by litigation. We're talking concrete here!! Let the government set clear rules and live by them. Comment 2: The court does note that the filing of the government's amicus brief in Lara put Cinemark on notice of the government position. On the other hand, the resolution of the issue in Lara, one might justifiably assume, would indicate that Cinemark had a good position and could continue to build. The court allows for that argument only in areas subject to the Fifth Circuit and only while the Fifth Circuit decision stands. Comment 3: On the merits, the editor agrees with the Justice position. If equal access is going to mean anything, it ought to mean going to the movies without straining one's neck. The question is whether it is appropriate for Justice to beat up Cinemark for doing what the Justice- approved permit process in Texas told it that it could do. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. 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