Caruso v. Blockbuster-Sony Music Entertainment Centre at the Waterfront

• Decision Date: 05 November 1999
• Docket Number: INTERVENOR-PLAINTIFF,Nos. 97-5693 and 97-5764,BLOCKBUSTER-SONY,s. 97-5693 and 97-5764
• Citation: 193 F.3d 730
• Parties: (3rd Cir. 1999) WILLIAM CARUSO; ADVOCATES FOR DISABLED AMERICANS; APPELLANTS IN NO. 97-5764, PARALYZED VETERANS OF AMERICA,IN D.C., APPELLANT IN NO. 97-5693, v.MUSIC ENTERTAINMENT CENTRE AT THE WATERFRONT; BLOCKBUSTER CORPORATION; SONY MUSIC ENTERTAINMENT, DIVISION OF SONY CORPORATION OF AMERICA Filed:
• Court: U.S. Court of Appeals — Third Circuit

Page 730

193 F.3d 730 (3rd Cir. 1999)

WILLIAM CARUSO; ADVOCATES FOR DISABLED AMERICANS; APPELLANTS IN NO. 97-5764, PARALYZED VETERANS OF AMERICA, INTERVENOR-PLAINTIFF IN D.C., APPELLANT IN NO. 97-5693, v. BLOCKBUSTER-SONY MUSIC ENTERTAINMENT CENTRE AT THE WATERFRONT; BLOCKBUSTER CORPORATION; SONY MUSIC ENTERTAINMENT, DIVISION OF SONY CORPORATION OF AMERICA

Nos. 97-5693 and 97-5764

U.S. Court of Appeals, Third Circuit

Filed: November 5, 1999

Argued: August 4, 1998

Decided: April 6, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 95-cv-03400) (District Judge: Honorable Joseph E. Irenas)

Niki Kuckes David S. Cohen (argued) Jody Manier Kris Miller, Cassidy, Larroca & Lewin 2555 M Street, N.W. Washington, D.C. 20037 Anthony J. Brady, Jr. (argued) 1 Alpha Avenue, Suite 36 Voorhees, N.J. 08043 Counsel for Appellants

Norman E. Greenspan (argued) Blank, Rome, Comisky & McCauley One Logan Square Philadelphia, PA 19103 Counsel for Appellees

Before: Nygaard, Alito, and Rendell, Circuit Judges

SUR PETITION FOR PANEL REHEARING

The original panel having voted for panel rehearing in the above appeal, it is

ORDERED that the petition for panel rehearing is granted. It is

FURTHER ORDERED that the Clerk of this court vacate the panel's opinion in the above-entitled matter filed on April 6, 1999, and an amended opinion is hereby filed.

OPINION OF THE COURT

Alito, Circuit Judge

The Blockbuster-Sony Music Entertainment Centre ("E-Centre") is a music and entertainment facility located in Camden, New Jersey. An interior pavilion at the E-Centre provides fixed seating for 6,200 patrons, and an uncovered lawn area located behind the pavilion can accommodate approximately 18,000 spectators who either stand or sit on portable chairs or blankets.

Appellant William Caruso, a Vietnam veteran who uses a wheelchair as a result of his disability, attended a concert at the E-Centre on July 13, 1995. The following day, Caruso and the Advocates for Disabled Americans filed a complaint in federal district court alleging, inter alia, that the E-Center does not comply with Title III of the Americans with Disabilities Act (ADA), Pub.L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12181 et seq. (1994)), because: 1) the wheelchair areas in the pavilion do not provide wheelchair users with lines of sight over standing spectators and 2) the lawn area is not wheelchair accessible. The District Court granted summary judgment in favor of the defendants on both claims.¹ We now affirm in part and reverse in part.

I.

Title III of the ADA protects individuals against discrimination "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). Title III requires that newly constructed facilities be "readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable." 42 U.S.C. §§ 12183. In order to carry out these provisions, Congress has directed the Department of Justice (DOJ) to "issue regulations . . . that include standards applicable to facilities" covered by Title III. 42 U.S.C. 12186(b). Congress has further required that any standards included by the DOJ in its regulations "be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board" ("Access Board"). 42 U.S.C. §§ 12186(c).²

Pursuant to its statutory authority under Title III, the DOJ has issued numerous regulations, see 28 C.F.R. §§§§ 36.101-36.608 (1998), one of which adopts the Access Board's guidelines as the DOJ's own Standards for New Construction and Alterations ("Standards"). See 28 CFR §§ 36.406 (referring to 28 C.F.R. §§ 36, App. A). Both of the issues in this case require us to interpret portions of the DOJ Standards.

A. Lines of Sight

Appellants contend that DOJ Standard 4.33.3, which was adopted after notice and comment, requires wheelchair seats in the E-Center pavilion to afford sight lines over standing spectators. Standard 4.33.3 provides:

Placement of Wheelchair Locations. 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. . . .

28 C.F.R. §§ 36, App. A, 4.33.3.

Appellants first argue that the plain meaning of the phrase "lines of sight comparable to those for members of the general public" requires that "if standing spectators can see the stage even when other patrons stand, wheelchair users, too, must be able to see the stage when other patrons stand." PVA Br. at 23. While this argument has considerable force, it does not account for the rest of the language in Standard 4.33.3, which helps the reader to place the phrase "lines of sight comparable" in context. Standard 4.33.3 is entitled "Placement of Wheelchair Locations" and includes at least two provisions concerning the dispersal of wheelchair locations in facilities with fixed seating plans.³ In addition, one of these dispersal provisions appears in the same sentence that contains the "lines of sight" requirement. Given this focus on the dispersal of wheelchair locations, it seems plausible to read the "lines of sight comparable" requirement as follows: if a facility's seating plan provides members of the general public with different lines of sight to the field or stage (e.g., lines of sight at a baseball game from behind the plate, on either side of the diamond, and from the outfield bleachers), it must also provide wheelchair users with a comparable opportunity to view the field or stage from a variety of angles.⁴

Appellants reject this suggestion that the "lines of sight" provision might require dispersal rather than vertical enhancement, contending that such a reading would impermissibly render other portions of Standard 4.33.3 superfluous. They argue:

Standard 4.33.3 . . . contains an explicit dispersal provision, wholly independent of the "comparable" line of sight provision. It requires, in pertinent part, that "[w]heelchair areas . . . shall be provided so as to provide persons with disabilities a choice of admission prices." For facilities, such as modern sports and entertainment venues, that offer tickets at a range of prices depending on seating location, dispersal of wheelchair locations is required by this provision. Moreover, a requirement for dispersal is also derived from the language in Standard 4.33.3 that "[w]hen the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location." Construing the phrase "lines of sight comparable to those provided to members of the general public" as simply requiring dispersal of wheelchair locations, as the E-Centre urges, is contrary to the plain language of that regulation and would deprive important parts of the regulation of any meaning.

PVA Reply Br. at 6-7. This attempt to divorce the "lines of sight" requirement from the two provisions in 4.33.3 that are indisputably about dispersion overlooks the possibility that the three provisions are designed to work together so that: 1) at a minimum, facilities with over 300 seats provide at least two wheelchair locations and 2) larger facilities provide wheelchair users with the option of choosing from among seats that afford a variety of views for a variety of corresponding prices. Contrary to appellants' assertion, this second result is not accomplished by the "choice of admission prices" language alone. For, if Standard 4.33.3 is read in piecemeal fashion as appellants suggest, a facility, regardless of its size and the number of views that it offers to the general public, would be able to place all wheelchair users in just two locations so long at it offers some choice of prices in those locations. See Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 743 n.61 (D. Or. 1997).

In the end, it seems that both interpretations of the "lines of sight" language are plausible and would provide some benefit to wheelchair users. Appellants' reading would benefit wheelchair users by allowing them to see when other patrons stand. The E-Centre's reading would benefit wheelchair users by providing them with a greater opportunity to view a performance or event from a variety of viewpoints. Since both readings of the rule are plausible and are consistent with the ADA's purpose of enabling people with disabilities to share equally in the benefits provided by a public accommodation, we conclude that the "lines of sight" language is ambiguous.

Appellants' second contention is that, even if Standard 4.33.3 is ambiguous, the court should follow the interpretation that has been given to the rule by the DOJ. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)(explaining that an agency's interpretation of its own regulation "must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation")(internal quotations omitted); Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113, 123 (3d Cir. 1998)(DOJ Technical Assistance Manual entitled to deference). But see id. at 525 (Thomas, J., Dissenting)("giving substantive effect to . . . a hopelessly vague regulation . . . disserves the very purpose behind the delegation of lawmaking power to administrative agencies"); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1997)(urging...