Legal E-Bulletin - May 2000

Stadium Style Movie Theatres

Visit our web site for previous editions of the Legal E-Bulletin:
Defining Disability Before And After Sutton V. United Air Lines

Part I B The Supreme Court's View Before Sutton  (February).
PART II - The Supreme Court opinion in  Sutton v. United Air Lines  (March).
PART III -  Pleading and Proving a Disability after Sutton v. United Air Lines  (April).

Table of Contents

Stadium Style Movie Theatres

The Fifth Circuit Holds That Restricting People With Disabilities to Uncomfortable Viewing Angles Does not Violate the ADA: Lara v. Cinemark USA, Inc.

A. The Fifth Circuit Interprets Section 4.33.3 (of the ADA Accessibility Standards) From a "Surprising Angle"

 On April 18, 2000, the Fifth Circuit Court of Appeals had the opportunity to interpret the Section 4.33.3 of the Americans with Disabilities Act Accessibility Standards in Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000).  The Court's opinion effectively excludes persons with disabilities from accessing many movie theaters.  The Court's ruling has national ramifications as the style of theaters at issue are being constructed all over the country.  The ruling will also affect all seating and line-of-sight arrangements for people with mobility impairments at all assembly areas, including entertainment and sporting venues.

The case was brought by a person with a disability, VOLAR Center for Independing Living and other individuals with disabilities in El Paso, Texas against Cinemark corporation, a multi-national with operations throughout the United States and nine foreign countries.  In the case, the plaintiff complained that the supposed accessible seating in a stadium style movie theater did not provide equal benefit or comparable lines of sight. In Cinemark, the Fifth Circuit held that stadium style movie theaters did not have to provide dispersed accessible seating throughout the Cinemark theaters located in El Paso, Texas, and it held that the only accessible seating could be lawfully placed in the frontmost row of the theater.  The frontmost row is universally considered by moviegoers to be the worst seats in the house.

B. Overview of the Design of Cinemarks Stadium Style Theatres

 Cinemark designed and built a stadium style theater in El Paso, Texas.  The principle design feature of a stadium style theater is that all the rows of seats are placed in a tiered or stair-step configuration. Cinemark, 207 F.3d at 78___. In the Cinemark-El Paso theatre, the patrons enter at the lowest level at the end of the theatre where the screen is, and walk up along the stairs or tiered rows of seats to the seat of their choice. This style of theater differs from other theaters where the patrons enter from the rear, opposite the screen, or from the center of the theatre, and seats are accessed by aisles that gradually slope from a higher elevation in the rear to a lower elevation nearest the screen. Cinemark, 207 F.3d at 78___.  Cinemark stadium theaters are designed with no rear entrance, or other entrance on a higher level tier.  The stadium theaters were designed and built without lifts or elevator or any design feature to allow a person with a disability to access a higher tier. The only access to the seating area is an open area without fixed seating On the ground level in the frontmost row of the theater. Cinemark, 207 F.3d at 78___.

C. Issues before the United States District Court

Jose Lara, a resident of El Paso who has a mobility impairment and uses a wheelchair, sued Cinemark shortly after it opened its facility in El Paso.  Mr. Lara claimed that the theater violated Title III of the ADA by not having seating with lines of sight for patrons with mobility impairments comparable to the seating and lines of sight provided for non-disabled persons.  The trial court focused on the meaning of 42 U.S.C. §12182(a) and the implementing regulation in 28 C.F.R. part 36, App. A, §§ 4.33.3 (1996).

 The statute establishes the following general rule:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public accommodation. 42 U.S.C. §§ 12182(a).

The particular regulation at issue in Cinemark is known as Standard 4.33.3 which in pertinent part provides as follows:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. They shall adjoin an accessible route that also serves as means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users.

EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies, and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress. 28 C.F.R. Part 36, App. A, §§ 4.33.3 (1996).

The Plaintiffs contended that the "Tinseltown" theater operated by Cinemark violated the statute and the standard because the wheelchair accessible seating does not provide lines of sight comparable to the seats provided to non-disabled patrons. Lara v. Cinemark USA, Inc., 1998 U.S. Dist. Lexis 14447 (W. D. Tex. 2000).

D. District Court Rules That Comparable Means Similar or Equivalent

 The district court found that the statute and regulation appear to be clear and unambiguous.  It concluded that "the words thereof can be interpreted in their common, ordinary, English language, dictionary meaning. 'Comparable' simply means capable of being compared; equivalent or similar."  The trial court went on to find that the plaintiffs must be afforded seating which provides lines of sight at least similar to those afforded to the average patron of the theater, rather than being relegated to the worst seats in the house. Cinemark, 1998 U.S. Dist. Lexis 14447.

 The district court found that the seating area designated for people who use wheelchairs and their companions were not comparable, because the area is too close to the screen, and too low in relation to the screen. Cinemark, 1998 U.S. Dist. Lexis 14447.  The viewing angle from this area is above thirty-five degrees from level, which the Plaintiffs' expert witness described as "well into the discomfort zone."  Cinemark, 1998 U.S. Dist. Lexis 14447.  The district court concluded that a person seated in the "wheelchair row" has to lift his or her eyes and crane his neck at a very uncomfortable angle in order to view the feature on the motion picture screen, transforming "Tinseltown" into "Headache City." Cinemark, 1998 U.S. Dist. Lexis 14447.

 Consequently, the district court found that patrons with mobility impairments were denied the full and equal enjoyment of the movie going experience in Cinemark theaters, and therefore, as presently configured, the stadium style theaters do not conform to the requirements of the Americans with Disabilities Act.  The trial court granted summary judgment in favor of Mr. Lara. Cinemark, 1998 U.S. Dist. Lexis 14447.

 As a remedy, the district court ordered that Cinemark modify 18 of its theaters by moving the wheelchair accessible seating further from the screen, moving the wheelchair accessible seating to a higher tier, and lowering the screen.  The district court also awarded attorney's fees to the plaintiffs and monetary damages of $100 per plaintiff.  Cinemark, 207 F.3d at 78___.

E. Trial Court Judgment Reversed on Appeal: Distinguishing "Comparable Line of Sight" from "Equal Benefit"

 Cinemark appealed the judgment to the Fifth Circuit Court of Appeals. The Court of Appeals reversed and ruled in favor of the defendants. Cinemark, 207 F.3d at 78___.

 On appeal, Cinemark contended that section 4.33.3 of the regulations did not apply to stadium theaters. According to Cinemark, that regulation applied only to auditoriums with more than 300 seats, and smaller venues like a movie house are not required to offer dispersed seating or choices in the lines of sight or ticket prices to disabled patrons. Cinemark, 207 F.3d at 78___.

 The Court rejected Cinemark's argument for several reasons, but for other reasons ultimately reversed the district court judgment. Cinemark, 207 F.3d at 78___.  First, the Court of Appeals noted that the portion of the regulation addressing "choice of admission prices and lines of sight comparable to those for members of the general public" is separate from the portion addressing dispersion of seating. Cinemark, 207 F.3d at 78___.  The language of the regulation provides that only auditoriums with more than 300 seats are subject to the requirement of dispersed seating.  The language in section 4.33.3 relating to "lines of sight comparable to those for members of the general public" is not limited to venues with 300 or more seats. Cinemark, 207 F.3d at 78___.  Also, the requirement of choice of admission prices and comparable lines of sight are considered to be two separate requirements applicable to venues regardless of the number of seats available.  Also, if Cinemark's reasoning were correct and section 4.33.3 applied only to venues of more than 300, than there would be no accessibility standard applicable to movie houses and other smaller auditoriums. Cinemark, 207 F.3d at 78___.

The court of appeals concluded that section 4.33.3 did apply to movie theaters, including the stadium style movie houses operated by Cinemark.  Cinemark, 207 F.3d at 78___. However, this was a pyrrhic victory for the plaintiffs, because when the court interpreted the meaning of the regulation and manner in which it should be applied, the court found in favor of the defendant. Cinemark, 207 F.3d at 78___.

The district court had concluded that in the context of the statutory requirements for equal treatment, equal access and equal benefits, the term "comparable lines of sight" meant comparable as equivalent or similar.  The district court compared the benefit of seating offered to patrons with disabilities to the average benefit provided to all other seating made available to all other non-disabled persons.

The Court of Appeals concluded that the term "line of sight" does not necessarily include the viewing angle. Cinemark, 207 F.3d at 78___.  Rather the court of Appeals concluded that "line of sight" refers only to whether there is an unobstructed view between the accessible seat and the object being viewed, not the angle at which it is viewed. Cinemark, 207 F.3d at 78___.

The Court considered the issue before it as being principally a dispute over viewings angles, and not the broader consideration of whether patrons with disabilities receive an equal benefit in the designed seating area. In doing so, the court of appeals found no governing authority in the statute or regulations that set a particular requirement for viewing angels.  Indeed the court acknowledged that the Architectural and Transportation Barriers Compliance Board ("Access Board") has recently proposed new guidance which require unobstructed lines of sight in auditoriums.  The new Access Board regulations did not incorporate a specific rule addressing viewing angles, which had been advocated by the Department of Justice (both before the Access Board and before the courts).  The Court of Appeals concluded that the term "line of sight" as used in the regulation means only an unobstructed view, and does not address the viewing angle of the line of sight.

The court found support for it reason in other unrelated safety regulations that use the phrase "line of sight." In those regulations, the phase includes within its meaning an unobstructed view, but it is not apparent from those regulations that the phrase is limited in meaning to only an unobstructed view.

Because the court found that the regulation requires only an unobstructed view, and not comparable viewing angles, the designed seating in the stadium theaters were in technical compliance with the regulation.  The court of appeal concluded the designated seating was in technical compliance because there was an unobstructed view of the screen form those seats - regardless of how uncomfortable or unpleasant the view may be.

The Fifth Circuit grounded its conclusion on the language of the regulation only and did not attempt to reconcile its conclusion with the statutory objective of equal benefit, equal access and integrated settings, which the regulations are intended to implement.

F. Conclusion

Although the Fifth Circuit seemed to strain in order to avoid affording people with disabilities the equal benefit of viewing motion picture, its reluctance to rule in favor of the plaintiffs in large measure hinged on the interpretation to be given the regulations regarding the "light of sight."  The Fifth Circuit is not the first court to find the regulations too imprecise to be useful.  The courts in Caruso v. Blockbuster-Sony, 193 F.3d 730 (3rd Cir. 1999),  Independent Living Resources Inc. v. Oregon Arena Corp., 982  F. Supp. 698 (D. Or. 1998), and in Paralyzed Veterans of America v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997), also had concerns about the regulatory language when these courts previously took up the issue of how to interpret the meaning of "comparable lines of sight."  These cases addressed the issue of whether lines of sight of accessible seating areas needed to be configured such that the view from the accessible seating area  was not obstructed by standing spectators.  In each of these cases the courts found ambiguities or other deficiencies in the regulations.  In Caruso, the court concluded that the Department of Justice's interpretation amounted to a
substantive change in the regulations, and should have been adopted in accordance with the public notice and comment period provided in the Administrative Procedures Act if it were to have the force of law.

These cases combine to illustrate the limitations of the regulatory language, or at least show that the regulatory language can be and must be made more clear.  The good news is that the courts in these cases principally based their decision on ambiguities or limits in the regulatory language, rather than on the language of the statue itself.  This is good news because it leaves open the opportunity for the Access Board, the Department of Justice, or both to propose new regulations with more plain language and specific requirements regarding lines of sight for accessible seating areas.  Revised regulations that are unambiguous will assure that the promise of equal access is fulfilled. Of course, a regulatory change does not require an amendment to the statute.  Perhaps a most important and valuable aspect of the regulatory process is that the general public has the opportunity to comment and shape the law.

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