Miller v. California Speedway Corp.
| Decision Date | 08 August 2008 |
| Docket Number | No. 06-56468.,06-56468. |
| Citation | 536 F.3d 1020 |
| Parties | Robert MILLER, Plaintiff-Appellant, v. The CALIFORNIA SPEEDWAY CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark D. Potter and Russell C. Handy, Center for Disability Access, LLP, San Marcos, CA, for the plaintiff-appellant.
John S. Lowenthal and Bryan R. Reid, Lewis Brisbois Bisgaard & Smith, LLP, San Bernardino, CA, for the defendant-appellee.
Karen L. Stevens, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for the Amicus United States.
Carolyn R. Young, Chapman University School of Law, Orange, CA; Paula D. Pearlman, Disability Rights Legal Center, Los Angeles, CA, for the Amicus San Diego Polio Survivors.
Appeal from the United States District Court for the Central District of California; Stephen G. Larson, District Judge, Presiding. D.C. No. CV-01-00434-SGL.
Before: WILLIAM C. CANBY, JR. and JAY S. BYBEE, Circuit Judges, and ROGER HUNT,* District Judge.
Appellant Robert Miller is a big fan of NASCAR, attending from three to six events a year at the California Speedway in Fontana. He also happens to be a quadriplegic who uses an electric wheelchair. When the fans immediately in front of Miller stand during the most exciting parts of the race, they block his view of the action.
Appellee California Speedway Corporation ("Speedway") opened the California Speedway in 1997. The track and stadium, which sponsors NASCAR events, has two areas for wheelchairs in the grandstands; the cheaper seats are located at the bottom of the stadium, and the more expensive seats are located near the top. Miller always purchases tickets for the top row.
Miller brought this suit, claiming that Speedway has violated Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., and a Department of Justice regulation requiring that wheelchair areas "provide people with physical disabilities . . . lines of sight comparable to those for members of the general public." 28 C.F.R. pt. 36, App. A, § 4.33.3 (italics omitted). The district court granted Speedway's motion for summary judgment on the ground that the DOJ regulation does not address the question of lines of sight over standing spectators. Miller v. California Speedway Corp., 453 F.Supp.2d 1193, 1204 (C.D.Cal. 2006).
As the district court noted, two federal courts of appeals and two federal district courts have addressed this precise question and have reached opposite conclusions. The Third Circuit and the District of Oregon concluded that the DOJ's regulation does not require lines of sight over standing spectators. Caruso v. Blockbuster-Sony Music Entm't Centre at the Waterfront, 193 F.3d 730, 736-37 (3rd Cir. 1999); Indep. Living Res. v. Oregon Arena Corp., 982 F.Supp. 698, 742-43 (D. Oregon 1997). By contrast, the D.C. Circuit and the District of Minnesota found that the DOJ's regulation does require lines of sight over standing spectators. Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 587 (D.C.Cir.1997); United States v. Ellerbe Becket, Inc., 976 F.Supp. 1262, 1269 (D.Minn.1997). We agree with the D.C. Circuit and reverse the judgment of the district court.
Title III of the ADA prohibits discrimination against any individual "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers" or "where ... removal of a barrier . . . is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods." 42 U.S.C. § 12182(b)(2)(A)(iv), (v). The ADA further requires that newly constructed facilities be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). The ADA directs the Attorney General to "issue regulations . . . that include standards applicable to facilities" covered by Title III and to provide "appropriate technical assistance manuals to individuals or entities with rights or duties" under Title III. 42 U.S.C. §§ 12186(b), 12206(c)(3). Congress instructed the Attorney General to issue regulations within one year of the enactment of the ADA. 42 U.S.C. § 12186(b).
The process by which the Attorney General promulgates his regulations has an unusual twist. Congress mandated that the Attorney General's regulations "be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board," 42 U.S.C. § 12186(c), commonly referred to as the "Access Board." The Access Board is an independent federal agency comprised of twenty-five persons—thirteen presidentially-appointed individuals and representatives from twelve federal agencies, including the DOJ. 29 U.S.C. § 792(a)(1). The Board is directed to establish "minimum guidelines and requirements for the standards issued" under Title III of the ADA, 29 U.S.C. § 792(b)(3)(B), and to "develop advisory information for, and provide appropriate technical assistance to, individuals or entities with rights or duties under regulations prescribed" under Title III, 29 U.S.C. § 792(b)(2). In sum, the Board establishes "minimum guidelines" for Title III, but the DOJ promulgates its own regulations, which must be consistent with— but not necessarily identical to—the Board's guidelines. Congress instructed the Board to issue its guidelines within nine months of the enactment of the ADA. 42 U.S.C. § 12204(a).
In January 1991, six months after the enactment of the ADA, the Access Board published its first proposed ADA Accessibility Guidelines, known as the ADAAG. 56 Fed.Reg. 2296 (1991). Initially, the provision discussing assembly areas provided:
4.33.3 Placement of Wheelchair Locations. Wheelchair areas shall be an integral part of any fixed seating plan and shall be dispersed throughout the seating area. They shall . . . be located to provide lines of sight comparable to those for all viewing areas.
56 Fed.Reg. at 2380. In commentary on its proposed rules, the Access Board noted that the "lines of sight" requirement
appears to be adequate for theaters and concert halls, but may not suffice in sports areas or race tracks where the audience frequently stands throughout a large portion of the game or event. In alterations of existing sports arenas, accessible spaces are frequently provided at the lower part of a seating tier projecting out above a lower seating tier or are built out over existing seats at the top of a tier providing a great differential in height. These solutions can work in newly constructed sports arenas as well, if sight lines relative to standing patrons are considered at the time of initial design. The Board seeks comments on whether the full lines of sight over standing spectators in sports arenas and other similar assembly areas should be required.
One month later, in February 1991, the DOJ published its own Notice of Proposed Rulemaking. 56 Fed.Reg. 7452 (1991). With respect to the standards for new construction and alterations, the proposed rules stated that the standards would be published as Appendix A, and that Appendix A would be the ADAAG proposed by the Access Board in its January 1991 notice of proposed rulemaking, together "with any amendments made by the [Access Board] during its rulemaking process." 56 Fed.Reg. at 7478, 7492. "The Department proposes to adopt these guidelines as the accessibility standard applicable under this rule." 56 Fed.Reg. at 7478-79. The DOJ requested that any comments on the Access Board's notice of proposed rulemaking be sent to the Access Board. 56 Fed.Reg. at 7479.
In July 1991, the Access Board published its final ADAAG. 56 Fed.Reg. 35,408 (1991). Section 4.33.3 was modified to read, "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." 56 Fed.Reg. at 35,514 (italics omitted). The Board addressed the problem of "lines of sight over standing spectators in sports arenas and other similar assembly areas" and noted that "[m]any commenters also recommended that lines of sight should be provided over standing spectators." 56 Fed.Reg. at 35,440. To this, the Access Board simply stated that "the issue of lines of sight over standing spectators will be addressed in guidelines for recreational facilities," id., guidelines the Access Board, evidently, had not proposed.
The very same day that the Access Board finalized its guidelines, the DOJ issued its final Title III regulations. 56 Fed.Reg. 35,544 (1991). As the DOJ had previously announced, it "adopt[ed] the ADAAG as the accessibility standard applicable under this rule." 56 Fed.Reg. at 35,585. The DOJ incorporated the ADAAG—including § 4.33.3—verbatim in Appendix A. See 28 C.F.R. 36.406 & App. A. The commentary accompanying the regulations stated that the "[DOJ] put the public on notice, through the proposed rule, of its intention to adopt the proposed ADAAG, with any changes made by the Board, as the accessibility standards." 56 Fed.Reg. at 35,586. The DOJ further indicated that Id. The DOJ did not expressly address lines of sight.
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