Thursday, November 8, 2007
Page 1
Ninth Circuit Expresses Concern Over Ruling on Stadium Seating
By KENNETH OFGANG, Staff Writer
Members of a Ninth U.S. Circuit Court of Appeals panel yesterday expressed concerns yesterday over the scope of a ruling that requires a major movie theater chain to retrofit auditoriums at nearly 100 multiplexes around the country to comply with the Americans With Disabilities Act.
Laura M. Franze, of the Dallas, Tex. office of Akin Gump Strauss Hauer & Feld, appeared to strike a chord when she argued that the nationwide scope of the injunction would place her client, AMC Entertainment, Inc., at a “horrific competitive disadvantage” in some parts of the country.
The problem, Franze said, is that appellate courts have reached different conclusions as to whether a movie theater complies with the ADA simply by offering obstruction-free seating in theaters with stadium-style auditorium configurations, or whether it must give wheelchair users to sit in the elevated portions of the auditoriums so that their sightlines are equivalent to those of non-disabled patrons.
Stadium-style seating was introduced by AMC in Dallas in 1995 and has since been copied by all of its major competitors and has spread throughout the country. AMC has multiplexes in about 22 states, with the largest numbers in California, Florida, and Texas.
The earliest stadium-style theaters had all of their wheelchair spaces close to the screen, in an area with traditional sloped seating rather than the stepped-up stadium seating, the parties explained in their briefs, although later designs have placed auditorium entrances farther from the screen and improved sightlines for wheelchair users.
Higher Standards
To the extent that the injunction issued by U.S. District Judge Florence-Marie Cooper requires AMC to meet the higher standards urged by the Department of Justice in states like Texas, where it may have to renovate 15 multiplexes while its competitors need only meet the lower standards approved by the Fifth Circuit, AMC is being deprived of due process and equal protection, Franze insisted.
She also argued that Cooper’s order violates the “hierarchy of courts” by not deferring to the Fifth Circuit within its geographical boundaries.
The ADA was enacted in 1990. Title III of the act guarantees disabled persons the “full and equal enjoyment” of public accommodations, and leaves it up to the Department of Justice, with the assistance of the U.S. Access Board, to develop standards to be applied to all new places of public accommodation built for first occupancy more than 30 months after the enactment of the sttute.
Access Board
The Access Board is made up of 24 members, half of whom represent federal agencies and half of whom are public members appointed by the president. A majority of the public members must be disabled persons.
Standard 4.33.3, adopted in 1991, provides that, with respect to arenas, theaters, and the like, “[w]heelchair areas...shall be provided so as to provide people with physical disabilities...lines of sight comparable to those for members of the general public.”
The standard also provides, among other things, that when seating capacity exceeds 300, wheelchair spaces shall be provided in more than one place.
Gregory Friel, an attorney with the Civil Rights Division of the Department of Justice, said the early designs “made the experience virtually unbearable.” Many disabled persons “simply gave up going to movies,” he said.
He also told the panel that there is nothing inequitable in requiring theater operators to meet a higher standard when their own industry has long recognized that seats must be not only obstruction-free, but installed at appropriate viewing angles.
“Joe Smith on the street might not understand” what the DOJ meant by “comparable” lines of sight, but the movie theater owners did, he argued. And he urged the panel to defer to the district judge’s interpretation of the law.
But Franze drew some apparent sympathy when she argued that the industry had no notice that the DOJ expected it to provide equivalent sightlines until the summer of 1998, when it took that position in an amicus brief filed in a suit brought by a private party in Texas. That case ultimately resulted in the Fifth Circuit ruling rejecting the DOJ position.
Other appellate courts have tended to adopt the government’s interpretation of Standard 4.33.3, but have questioned whether it should be applied retroactively. Judge Kim Wardlaw questioned Friel’s reliance on the alleged existence of an industry standard prior to 1998.
“What difference does it make, unless [the DOJ] tells them what [Standard 4.33.3] means?” she asked.
Franze acknowledged that the Ninth Circuit is among those that have adopted the government’s interpretation of the standard. But in effectuating a remedy, she said, equity requires that her client not be required to make major renovations in theaters that were designed prior to 1998—“the first time the department spoke with clarity that there was a viewing angle component” to the standard—or in theaters located within the Fifth Circuit, or in states such as Texas and Florida where designs were signed off on by state authorities under disability access programs that the DOJ had certified as meeting or exceeding the federal standards.
Wardlaw told Franze that the court would not, if it were to uphold the injunction’s application to states within the territory of the Fifth Circuit, be overruling that court, since “you’re not being required to violate Fifth Circuit law.” But Judge Carlos Bea said he was concerned about the effect of a nationwide injunction on competition, and Judge N. Randy Smith said that while the district court had jurisdiction to issue a nationwide injunction, the judge should have shown comity to the Fifth Circuit, and perhaps to the state regulatory authorities as well.
The case is United States v. AMC Entertainment, Inc., 06-55390.
Copyright 2007, Metropolitan News Company