Oregon Paralyzed Veterans of Am. v. Regal Cinemas

• Decision Date: 30 April 2001
• Docket Number: No. CIV. 00-485-KI.,CIV. 00-485-KI.
• Citation: 142 F.Supp.2d 1293
• Parties: OREGON PARALYZED VETERANS OF AMERICA, a non-profit corporation, Kathy Stewmon, Tina Smith, and Kathy Braddy, Plaintiffs, v. REGAL CINEMAS, INC., and Eastgate Theatre Inc., d/b/a Act III Theaters, Inc., Defendants.
• Court: U.S. District Court — District of Oregon

142 F.Supp.2d 1293

OREGON PARALYZED VETERANS OF AMERICA, a non-profit corporation, Kathy Stewmon, Tina Smith, and Kathy Braddy, Plaintiffs, v. REGAL CINEMAS, INC., and Eastgate Theatre Inc., d/b/a Act III Theaters, Inc., Defendants.

No. CIV. 00-485-KI.

United States District Court, D. Oregon.

April 30, 2001.

Robert W. Pike, Portland, OR, Kathleen L. Wilde, Oregon Advocacy Center, Portland, OR, David B. Gray, Portland, OR, for Plaintiff.

Laura M. Franze, M. Brett Burns, Andrew M. Gould, Akin, Gump, Strauss, Hauer & Feld., L.L.P., Dallas, TX, and Karen O'Kasey, Nathan A. Sykes, Schwabe, Williamson & Wyatt, P.C., Pacwest Center, Portland, OR, for Defendants.

OPINION

KING, District Judge.

Before the court is the motion for summary judgment (# 35) by plaintiffs Oregon Paralyzed Veterans of America, Kathy Stewmon, Tina Smith, and Kathy Braddy. Also before the court is the motion for summary judgment (# 37) by defendants Regal Cinemas, Inc. and Eastgate Theatre, Inc., dba Act III Theaters, Inc. (collectively, "Regal"). For the reasons set forth below, I grant defendants' motion for summary judgment and deny plaintiffs' motion for summary judgment.

FACTS

In 1995, Regal began constructing "stadium-style" movie theaters. Stadium-style theaters roughly emulate the seating configuration of a typical sports stadium, providing stepped-seating that rises at a slope of well over five percent. This elevated seating configuration reduces the obstructed view or line-of-sight problems that occur, for example, when a tall individual sits in front of a shorter individual.

The stairs that support the stadium-style seating configurations require a steep grade that generally cannot be navigated by wheelchair-using patrons. Wheelchair-accessible seating is located in front of the tiered seats amidst the seating for the general public in the first five rows of seats. The wheelchair seat locations have an unobstructed view of the movie screen.

In this lawsuit, plaintiffs challenge the wheelchair seat locations in theaters within six theater complexes in northern Oregon owned by Regal. These six complexes have between nine and sixteen theaters and the majority of the theaters have less than 250 seats. Certificates of occupancy and other approvals were issued for each of the theaters by local and state building officials.

Plaintiffs allege that the wheelchair seat locations are in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"). They also assert a claim under an Oregon public accommodation law (ORS 659.425(3)) and the common law tort of negligence.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 952, 120 S.Ct. 375, 145 L.Ed.2d 293 (1999).

DISCUSSION

I. ADA Claim

As a "public accommodation," Regal's theaters are subject to the requirements of Title III of the ADA. The general rule of Title III provides:

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). Newly constructed facilities subject to the ADA must be "readily accessible to and usable by individuals with disabilities." Id., § 12183(a)(1). Congress has directed the Department of Justice ("DOJ") to "flesh out" these general principles by "issu[ing] regulations ... that include standards applicable to facilities" covered by Title III. Id., § 12186(b); Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 580 (D.C.Cir.1997), cert. denied, 523 U.S. 1003, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). DOJ fulfilled this responsibility by adopting guidelines promulgated by the Architectural and Transportation Barriers Compliance Board, known as the "Access Board." The Access Board is charged with "establish[ing] and maintain[ing] minimum guidelines and requirements for the standards issued pursuant to," Title III of the ADA. 29 U.S.C. § 792(b)(3)(B). The regulations adopted by the DOJ are known as the Americans with Disabilities Act Accessibility Guidelines ("ADAAG").

One of the guidelines promulgated by the Access Board, and adopted by DOJ as its own regulation in 1991, states in relevant part 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.

28 C.F.R. Part 36, App. A, § 4.33.3 (emphasis added).¹

At the center of this lawsuit is the meaning of "lines of sight comparable" in Section 4.33.3. Plaintiffs argue that these words impose a viewing angle standard such that wheelchair seating areas must be placed in the stadium seating portion of theaters and not just in the front rows of a theater that provide inferior and uncomfortable viewing angles. Defendants argue that these words do not impose a viewing angle standard and mean only that a patron in a wheelchair must be provided with an unobstructed view of the movie screen.

To date, the major court decisions that have construed "lines of sight comparable" in Section 4.33.3 have addressed the question of whether those words impose a requirement that wheelchair users not have their views obstructed by spectators who may stand in front of them. Paralyzed Veterans, 117 F.3d at 583-84 (holding that Section 4.33.3 does require auditorium owners to provide wheelchair areas that have lines of sight unobstructed by standing spectators); Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 743 (D.Or.1997) (holding that Section 4.33.3 "does not purport to decide whether lines of sight over standing spectators are — or are not — necessary in order to comply with the ADA"); Caruso v. Blockbuster-Sony Music Entertainment Ctr. at Waterfront, 193 F.3d 730, 736 (3rd Cir.1999) (holding that Section 4.33.3 does not reach the issue of sight lines over standing spectators). Only one appellate decision has addressed the issue of whether "lines of sight comparable" requires stadium-style theaters to provide wheelchair-bound moviegoers with comparable viewing angles rather than unobstructed lines of sight. That case is Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000).

In July 1998, DOJ filed in the Lara case an amicus curiae brief. In its brief, the DOJ announced a new interpretation of Section 4.33.3, based on its reading of the plain meaning of "comparable lines of sight." The interpretation required the following in stadium-style theaters: "wheelchair locations must be provided lines of sight in the stadium seating seats within the range of viewing angles as those offered to most of the general public in the stadium style seats, adjusted for seat tilt." Defendants' Exh. L, p. 8.

The district court granted summary judgment in favor of the plaintiffs and the defendant appealed that decision. On appeal, DOJ again filed an amicus brief espousing its new interpretation of Section 4.33.3 with respect to wheelchair locations in stadium-style theaters.

On April 6, 2000, the Fifth Circuit issued its opinion in the Lara case and reversed the district court. On October 16, 2000, the Supreme Court denied the plaintiffs' petition for writ of certiorari. Lara v. Cinemark USA, Inc., ___ U.S. ___, 121 S.Ct. 341, 148 L.Ed.2d 274 (2000).

Notwithstanding the Fifth Circuit's rejection of the DOJ's litigating position in Lara, plaintiffs essentially adopt DOJ's litigating position as their own in this case. They ask that I view DOJ's litigating position in the Lara case as its latest interpretation of Section 4.33.3 and also ask that I pay deference to that interpretation.

Before launching into a discussion of whether deference is due to DOJ's interpretation of Section 4.33.3 as announced in the Lara v. Cinemark litigation, I believe it is important to emphasize that neither the district court nor the Fifth Circuit analyzed the issue in such a way. The district court reasoned that:

[T]he statute and regulation appear to be clear and unambiguous, and 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 Plaintiffs contend that this language means that the wheelchair-bound patrons should and must be afforded seating providing lines of sight at least similar to those afforded to the average person of the theater rather than being relegated to the worst seats in the house. * * * The Court agrees with the Plaintiffs' interpretation of the word "comparable" as used in the regulation....

Lara v. Cinemark USA, Inc., 1998 WL 1048497, *2 (W.D.Tex.).

On this basis, and without any discussion of the history of Section 4.33.3, the court concluded that the viewing angles provided by the wheelchair seating at issue in the case did not provide "comparable lines of sight" as required by Section 4.33.3. Id.

In rejecting the district court's "plain meaning" analysis, the Fifth Circuit in Lara examined the history of Section 4.33.3. The court noted that, unlike questions of "viewer obstruction," which DOJ and the...