U.S. v. Cinemark Usa, Inc.

• Decision Date: 06 November 2003
• Docket Number: No. 02-3100.,02-3100.
• Citation: 348 F.3d 569
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. CINEMARK USA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

348 F.3d 569

UNITED STATES of America, Plaintiff-Appellant, v. CINEMARK USA, INC., Defendant-Appellee.

No. 02-3100.

United States Court of Appeals, Sixth Circuit.

Argued June 20, 2003.

Decided and Filed November 6, 2003. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED:

Gregory B. Friel (argued and briefed), UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, APPELLATE SECTION, Washington, D.C., for Appellant.

Laura M. Franze, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Dallas, Texas, for Appellee.

ON BRIEF:

Gregory B. Friel, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, APPELLATE SECTION, Washington, D.C., for Appellant.

Laura M. Franze, M. Brett Burns, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Dallas, Texas, for Appellee.

David K. Monroe, GALLAND KHARASCH GREENBERG FELLMAN & SWIRSKY P.C., Washington, D.C., Jeffrey T. Kubes, CRISHAM & KUBES, Chicago, IL, for Amici Curiae.

Before: DAUGHTREY and ROGERS, Circuit Judges; QUIST, District Judge.^*

OPINION

ROGERS, Circuit Judge.

The district court in this case granted summary judgment against the United States in its suit against Cinemark USA, Inc. (Cinemark) under Title III of the Americans with Disabilities Act (ADA). The government alleged that Cinemark has violated the ADA by designing, constructing, and operating stadium-style movie theaters in a manner that discriminates against wheelchair-using patrons. Specifically, the government argued that Cinemark was not complying with the applicable Justice Department regulation, ADAAG¹ § 4.33.3, which requires that "[w]heelchair areas shall be ... provided so as to provide people with disabilities ... lines of sight comparable to those for members of the general public." The district court held as a matter of law that Cinemark was in compliance because its theaters provided wheelchair patrons with unobstructed views of the movie screen from wheelchair seating located amid or adjacent to seating for the general public. The government correctly argues that the "line of sight" aspect of its regulation does not require merely that wheelchair users be provided unobstructed views of the movie screen, but instead requires in addition that the unobstructed views be "comparable" to those of other patrons. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

BACKGROUND

1. Cinemark's Stadium-style Theaters

Cinemark constructs, owns, and operates movie theaters throughout the United States. In 1995, Cinemark began constructing "stadium-style" movie theaters. Stadium-style theaters have a seating configuration that rises at a relatively steep grade,² typically making stadium-style sections of these theaters impossible to navigate by wheelchair-using patrons. In Cinemark's stadium-style theaters, wheelchair placements are generally located on a flat portion of the auditorium approximately one-third of the way back from the screen. This placement is in the third row of fixed seating, with two rows of general public seating in front, and near the entrances and exits to the theaters.³ Wheelchair placements are also located on a flat portion in the rear of the auditorium in Cinemark's theaters that seat 300 or more people. These placements are accessed by elevators. Over 80 percent of the general seating in Cinemark's stadium-style theaters is located in the stadium section.

The government alleges that because of the placement of the wheelchair-accessible locations, wheelchair users are sometimes forced to look up at the screen at sharp angles, resulting in severe discomfort and pain. According to the government, these and similar problems have made Cinemark's stadium-style theaters effectively unusable by persons confined to wheelchairs.

2. Title III of the ADA and the Justice Department's Regulation, ADAAG § 4.33.3⁴

Disability-based discrimination in public accommodations is prohibited under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182. Title III generally requires that public accommodations designed and constructed "for first occupancy" after January 26, 1993,⁵ be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). Cinemark's stadium-style movie theaters were built starting in 1995 and are therefore subject to Title III's requirements for new construction.

Congress gave the Attorney General the responsibility to promulgate regulations implementing the provisions of Title III of the ADA. See 42 U.S.C. § 12186(b). These regulations must be consistent with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board (the "Access Board"). See 42 U.S.C. § 12186(c). In 1991, the Department of Justice (the "DOJ") issued regulations, known as the Standards for Accessible Design, which incorporated the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") promulgated by the Access Board. See 56 Fed.Reg. 35,546 (July 26, 1991); 28 C.F.R. 36.406(a); 28 C.F.R. Pt. 36, App. A. The ADAAG were promulgated under the notice-and-comment procedures of the Administrative Procedure Act, 5 U.S.C. § 553 (1998).

This appeal concerns one of DOJ's regulations under Title III of the ADA, known variously as Standard 4.33.3 or ADAAG § 4.33.3. This regulation provides that in "assembly areas,"

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 a 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. Pt. 36, App. A, § 4.33.3 (emphasis added).

3. The DOJ's Certification of Local Accessibility Standards

The Department of Justice is authorized under Title III of the ADA to certify that state or local accessibility standards meet or exceed the ADA Standards for Accessible Design. The DOJ explained the advantages of this process in a publication on its website entitled "Certification of State and Local Building Codes":

Code certification facilitates voluntary compliance by putting ADA requirements and local requirements into a single, readily available document. It allows builders to rely on their local inspection and approval processes, and it ensures that accessibility will be routinely considered in those processes. It allows builders to be assured of compliance through inspections early in the construction process, when mistakes can be corrected relatively easily and cost-effectively. It eliminates conflicts between local requirements and ADA requirements. Finally, by incorporating ADA-equivalent accessibility provisions into the local code, certification gives building officials a significant role in enforcing the substance of the ADA.

J.A. at 154. Certification serves as "rebuttable evidence" that a state law or local ordinance meets or exceeds the minimum requirements of the ADA in a later federal enforcement proceeding, see 42 U.S.C. § 12188(b)(1)(A)(ii), and compliance with a certified code is "rebuttable evidence" of compliance with Title III of the ADA.

The State of Texas has promulgated building codes related to requirements under Title III of the ADA, known as the Texas Accessibility Standards ("TAS"). The TAS were certified as meeting or exceeding federal accessibility requirements by the DOJ on September 23, 1996. Following this certification, the DOJ issued a press release which stated:

Builders in Texas who follow state building codes can be assured that they are complying with federal guidelines as well, now that the Justice Department has certified Texas codes as being in compliance with the Americans with Disabilities Act....

"Everyone in the state of Texas — builders, architects, business owners, and the general public — will benefit from Texas' new accessibility standards" .... "Certification makes it easier to comply with the law."

... Builders will benefit from this new process because it ensures that construction which meets state codes meets the requirements of the ADA. Builders will also have additional legal protection in ADA lawsuits if they build in compliance with the certified code.

J.A. at 153. The TAS includes a "Section 4.33.3," which is modeled after the language of ADAAG § 4.33.3. Cinemark received certification of its compliance with TAS accessibility requirements for many of its stadium-style theaters built in Texas between 1995 and 1998. Cinemark relied upon this certification of compliance when designing and building its theaters in Texas and throughout the United States.

4. The Access Board's New Notice of Proposed Rulemaking

On November 16, 1999, the Access Board published a new Notice of Proposed Rulemaking in the Federal Register for public notice and comment. See 64 Fed. Reg. 62248, 62278 (1999). The notice proposed modifications to ADAAG § 4.33.3 not relevant here, but in a preamble to the proposed revision, the Access Board noted that it was "aware" of DOJ attempts to enforce DOJ's interpretation of ADAAG § 4.33.3 through litigation, and stated that the Board was "considering whether to include specific requirements in the final rule that are consistent with DOJ's interpretation of 4.33.3 to stadium-style movie theaters." Id. A new...