Arizona ex rel. Goddard v. Harkins Amusement Ent.
| Decision Date | 28 March 2008 |
| Docket Number | No. CV-07-703-PHX-ROS.,CV-07-703-PHX-ROS. |
| Citation | 548 F.Supp.2d 723 |
| Parties | The State of ARIZONA ex rel. Terry GODDARD, the Attorney General; the Civil Rights Division of the Arizona Department of Law, Plaintiffs, and Frederick Lindstrom by and through his parent, Rachel Lindstrom; and Larry Wanger, Plaintiff-Intervenors, v. HARKINS AMUSEMENT ENTERPRISES, INC.; et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Ann Ruth Hobart, Office of the Attorney General, Phoenix, AZ, Rose Ann Daly-Rooney, Office of the Attorney General, Tucson, AZ, for Plaintiffs.
Edward Leo Myers, Phoenix, AZ, Jose De Jesus Rico, Arizona Ctr. for Disability Law, Tucson, AZ, for Plaintiff-Intervenors.
John James Egbert, Jennings Strouss & Salmon PLC, Phoenix, AZ, Richard Lustiger, Harkins Theatres, Scottsdale, AZ, for Defendants.
Defendants Harkins Amusement Enterprises Inc., et al.1 ("Harkins") move to dismiss Plaintiffs and Plaintiff-Intervenors pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs.3, 6.) Harkins' motions present the issue of whether the Americans with Disabilities Act ("ADA") and the Arizonans with Disabilities Act ("AzDA") require movie theaters to provide captioned movies for the hearing impaired and to provide descriptions for the seeing impaired. The Court concludes that neither the ADA nor the AzDA require movie theaters to provide these services. Accordingly, Harkins' motions to dismiss will be granted.
The ADA was designed to eliminate "discrimination against individuals with disabilities." Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir.2002). The ADA proclaims:
No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). Discrimination includes:
a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden....
Id. § 12182(b)(2)(A)(iii) (). The ADA also defines "auxiliary aids and services" to include "effective methods of making aurally delivered materials available to individuals with hearing impairments" and "effective methods of making visually delivered materials available to individuals with visual impairments." Id. § 12102(1)(A) & (B).
The Attorney General is authorized to issue regulations concerning Title III of the ADA ("Title III").2 42 U.S.C. § 12186(b). The Attorney General's regulations further define "auxiliary aids and services" to include "open and closed captioning." 28 C.F.R. § 36.303(b)(1). However, the Appendix to § 36.303 clarifies: "Movie theaters are not required by § 36.303 to present open-captioned films." 28 C.F.R. Pt. 36, App. B(C) (1992).
Congress also authorized the Architectural and Transportation Barriers Compliance Board ("Access Board")3 to issue "minimum guidelines"—ADA Accessibility Guidelines ("ADAAG")—for Title III. 42 U.S.C. § 12204(a). The Attorney General's regulations must be consistent with the ADAAG. Id. § 12186(c). In 2004, the Access Board considered new technologies "developed to provide open or closed captioning for movie theaters," and concluded that theaters are not required to provide "built-in features that can help support the provision of captioning technologies." ADA Accessibility Guidelines for Buildings and Facilities, 69 Fed.Reg. 44084, 44138 (July 23, 2004).
Frederick Lindstrom has profound, bilateral hearing loss. As a result of his disability, Lindstrom cannot hear or discriminate speech and requires textual representations of movie soundtracks. On December 14, 2005, Rachel Lindstrom, the mother of Frederick Lindstrom, called the box office of the North Valley 16 Theatres to find a captioned showing of King Kong for her son. Ms. Lindstrom was told that there were no open-captioned showings of King Kong or auxiliary aids to display closed captioning at any of the theater auditoriums.4 Larry Wanger is totally blind in his right eye and has corrected visual acuity of less than 20/400 in his left eye. As a result of his disability, he is unable to see visual aspects of a film and requires an audio representation of its visual aspects. In August 2005, Wanger visited the North Valley 16 Theatres to see a movie with descriptive narrations, but was told that the theater did not have such narrations.
Captions and descriptions are available in many first-run, wide-release films. Film studios decide which movies will be captioned and/or described and provide the captions and descriptions on separate CDs along with the movies. Movie theaters can purchase and install available technology that enable the sensory impaired to view the captions or to hear the descriptions on headsets. Patrons cannot view or hear the captioning and description features on these movies unless the theaters install auxiliary equipment.
On December 15, 2006, the State of Arizona filed this action in Maricopa County Court against Harkins on behalf of Lindstrom, Wanger, and a putative class of similarly situated persons. The State alleges that Harkins violated A.R.S. § 41-1492.02 of the AzDA by failing to provide captions for the hearing impaired and descriptions for the seeing impaired. Subsequently, Lindstrom and Wanger ("Plaintiff-InterVenors") intervened alleging that the failure to provide captions and descriptions violated both the AzDA and the ADA.5 Plaintiffs make no claim that Lindstrom Wanger, or the putative class of similarly situated persons have been denied access to services as normally provided by Harkins.
Harkins removed this case to federal court on April 2, 2007, and moved to dismiss the complaints for failure to state a claim. Harkins does not dispute that Lindstrom and Wanger are disabled6 or that its theaters are public accommodations7 within the meaning of the ADA. Further, at this stage, Harkins does not argue that providing captioning and descriptions would result in an undue burden. Rather, Harkins contends that the requested captions and descriptions would alter the content of its services, and, therefore, fall outside the scope of the ADA. Harkin's argument requires the Court to interpret the meaning of the requirement in § 12182(b)(2)(A)(iii) that "no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services."
"A Rule 12(b)(6) motion tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). When reviewing a motion to dismiss, the Court "must determine whether, assuming all facts and inferences in favor of the nonmoving party, it appears beyond doubt that [Plaintiffs] can prove no set of facts to support [their] claims." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (internal quotations omitted).
A "simple reading" of the ADA does not compel the answer to the issue raised in this case. See Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir.1999). However, "[t]he common sense of the statute is that the content of the goods or services offered by a place of public accommodation is not regulated." Id. The Ninth Circuit has confirmed that the scope of the ADA's prohibition against discrimination under § 12182(a) is limited to the goods and services offered by an entity. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir.2000) (). In other words, the ADA "does not require provision of different goods or services, just nondiscriminatory enjoyment of those that are provided." Id.; see also McNeil v. Time Ins. Co., 205 F.3d 179, 186 (5th Cir.2000) ().
Plaintiffs attempt to distinguish Weyer, McNeil, and Doe because (1) they interpreted the ADA's general prohibition against discrimination under § 12182(a), not the auxiliary aids and services provision under § 12182(b)(2)(A)(iii), and (2) they concerned insurance coverage, rather than the factual situation here. These distinctions are unpersuasive.
Section 12182(a) sets forth the ADA's general prohibition against discrimination. Section 12182(b)(2)(A)(iii), in turn, fleshes out the definition of "discrimination." Nothing in the law suggests that § 12182(b)(2)(A)(iii) was somehow intended to extend the scope of the ADA. By its own terms, § 12182(b)(2)(A)(iii) has the same coverage as § 12182(a). Its introductory clause states, "[f]or purposes of subsection (a) of this section, discrimination includes...." In fact, McNeil rejected the plaintiffs' argument that its interpretation of § 12182(a) would render § 12182(b)(2)(A)(iii) superfluous. 205 F.3d at 186 n. 9. The court explained:
The provisions in §§ 12182(b)(1)(A)(i)(iii) concerning the opportunity to benefit from or to participate in a good or service do not imply that the goods or services must be modified to ensure that opportunity or benefit. Rather, this section only refers to impediments that stand in the way of a person's ability to enjoy the goods...
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ARIZONA EX REL. GODDARD v. Harkins Amusement
...failure to state a claim. The district court granted the motion in a published March 28, 2008, order, Arizona v. Harkins Amusement Enterprises, Inc., 548 F.Supp.2d 723 (D.Ariz.2008), which Plaintiffs now appeal. II. We review de novo the district court's dismissal for failure to state a cla......
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