UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-50204
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JOSE G. LARA, E.J. LOZANO, ALFREDO JUAREZ, G. TIM HERVEY, EARL L.
HARBECK, VOLAR CENTER FOR INDEPENDENT LIVING, LUIS ENRIQUE CHEW,
DESERT ADAPT, MYRA MURILLO, MARGARITA LIGHTBOURNE-HARBECK,
Plaintiffs-Appellees,
VERSUS
CINEMARK USA, INC.,
Defendant-Appellant.
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Appeal from the United States District Court
For the Western District of Texas
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April 6, 2000
Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant Cinemark USA, Inc. challenges the district
court’s determinations that the Americans with Disabilities Act
(“ADA”) requires “stadium-style” movie theaters to offer
wheelchair-bound patrons lines of sight comparable to those enjoyed
by the general public and that Cinemark’s theaters failed to
1
provide such sight lines.1 For the reasons that follow, we hold
that although the ADA does impose such a requirement, the district
court erred in concluding that Cinemark failed to meet its
obligations under the Act. Accordingly, we reverse the judgment of
the district court.
I.
Cinemark owns and operates “Tinseltown,” a twenty-screen
theater complex located in El Paso, Texas. All twenty of the
individual theaters in the complex provide “stadium-style” seating.
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 eliminates the line-of-sight problems that typically
occur, for example, when a tall individual sits in front of a
shorter individual.
Tinseltown provides wheel-chair accessible seating in its
theaters, but not as a part of the stadium-seating configuration.
Because stadium seating requires a steep grade, which is virtually
inaccessible to wheelchairs, Tinseltown placed its wheelchair
seating on a flat portion of each theater, located near the front
of the seating area. The wheelchair seating placements are
1
Cinemark also argues that the district court abused its
discretion by denying Cinemark’s motions to compel the depositions
of DOJ officials, by failing to strike Plaintiffs’ experts, by
permitting certain evidence into the record, and by ordering
burdensome remedial relief. Because we conclude that the district
court erred in interpreting the ADA, we need not address these
issues.
2
surrounded on all sides by general public seating, which, according
to Tinseltown, is used even when other seating is available.
In constructing the Tinseltown theaters, Cinemark submitted
the architectural plans to the Texas Department of Licensing and
Regulation (“TDLR”) and the City of El Paso. The city inspectors
reviewed the design plans, including wheelchair placements, and
granted the theater conditional approval to go ahead with the
plans. The city submitted this conditional approval to the TDLR.
Cinemark completed construction of the theater in September 1997,
and the city and state inspected the completed facilities. The
city and state inspectors approved the theaters’ seating
configurations, including the wheelchair placements.
Shortly after Tinseltown opened, a group of disabled
individuals and two advocacy groups (“Plaintiffs”) brought suit,
alleging that eighteen of Tinseltown’s twenty theaters violated the
ADA. Plaintiffs alleged that in these theaters, Cinemark located
the wheelchair accessible areas too near the screen and too far
below screen-level to provide wheelchair-bound moviegoers with
comfortable viewing. They contend that while Tinseltown’s stadium
seating affords non-disabled patrons improved lines of sight, the
theaters relegate wheelchair-users to inferior seating areas, where
they must uncomfortably crane their necks to watch movies.
Both parties filed motions for summary judgment and the
district court entered judgment for the Plaintiffs. The court
found that “a person seated in the ‘wheelchair row’ has to lift his
or her eyes and/or crane his or her neck at a very uncomfortable
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angle in order to view the feature on the motion picture screen.”
Therefore, the court concluded that “the wheelchair-bound patron is
denied the full and equal enjoyment of the movie going experience
in these theaters.”
Subsequently, the district court held two remedy hearings.
After considering testimony and argument, the district court
entered an “Order Awarding Damages and Granting Injunctive Relief.”
The order required Cinemark to modify eighteen of its theaters by
moving the wheelchair seating location further back from the screen
and higher off the floor, and by lowering the screen by
approximately one foot. The court also granted attorneys fees to
each of the plaintiffs and $100 in damages to each of the
individual wheelchair-bound plaintiffs.
Cinemark’s principal argument on appeal is that the district
court incorrectly interpreted and applied the ADA and the ADA
Guidelines promulgated pursuant to the Act. We now turn to those
arguments.
II.
We review the district court’s interpretation of the statute
de novo. See Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir.
1999).
Title III of the ADA provides that: “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 . . . or operates a place of public
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accommodation.” 42 U.S.C. § 12182(a). Congress delegated to the
Department of Justice the responsibility for issuing regulations in
order to enforce this mandate. 42 U.S.C. § 12186(b). Accordingly,
the DOJ, in conjunction with the Architectural and Transportation
Barriers Compliance Board (“Access Board”), issued ADA
Accessability Guidelines (“ADAAG”).2 At the center of this
litigation is Section 4.33.3 of the ADAAG, which provides that in
assembly areas:
Wheelchairs 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 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.
ADAAG, 28 C.F.R. pt. 36, App. A at 4.33.3 (1999).
The district court held that Cinemark violated section 4.33.3
because its Tinseltown theaters failed to provide wheelchair-bound
2
The Department of Justice did not draft the language in the
ADAAG. Rather, Congress has charged the Access Board with
“establish[ing] and maintain[ing] minimum guidelines and
requirements for the standards issued pursuant to” Title III of the
Act. 29 U.S.C. § 792(b). The DOJ adopted these standards in toto
pursuant to Congress’s insistence that the DOJ’s regulations be
“consistent with the minimum guidelines and requirements issued by”
the Board. See 42 U.S.C. § 12186(c).
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patrons with “lines of sight comparable to those for members of the
general public.” The court noted that while the general public
could choose to sit in any row, Tinseltown confined wheelchair-
bound patrons to an area with an “average viewing angle . . . [of]
above thirty-five degrees, which the Plaintiff’s expert witness has
properly described as ‘well into the discomfort zone.’”
Cinemark argues both that section 4.33.3 does not apply to its
theaters and, alternatively, that it provides wheelchair-users with
comparable lines of sight.
A.
Cinemark first argues that the “lines of sight comparable”
provision of section 4.33.3 only applies to theaters with a
capacity of over 300 seats. Cinemark posits that section 4.33.3,
when read as a whole, requires only that theaters with over 300
seats provide handicapped patrons with “the choice of admission
prices and lines of sight comparable to” to those enjoyed by the
general public. Emphasizing the phrase “choice of,” Cinemark
argues that section 4.33.3 simply imposes a dispersal requirement,
requiring larger auditoria to provide wheelchair-users with a
variety of admission prices and viewing locations. Cinemark
explains that the DOJ’s goal of dispersal could not be accomplished
by simply requiring a “choice of admissions prices,” because many
large auditoria, such as college sports venues, charge a single
admission price even for different viewing locations. Cinemark
concludes that because the regulation explicitly permits theaters
with seating capacities under 300 to provide wheelchair seating in
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a single area, its theaters are exempt from dispersal, and hence,
the entire regulation.3
In interpreting a statute or regulation, we first look to the
statute or regulation’s plain language. See United States v.
Raymer, 876 F.2d 383, 389 (5th Cir. 1989). Moreover, we must
consider the regulation as a whole, with the assumption that the
Department intended each of the regulation’s terms to convey
meaning. United States v. Bailey, 516 U.S. 143, 145 (1995). Based
on such a reading of the regulation, we cannot agree that the
“lines of sight language” demands nothing more than mere dispersal.
First, the “lines of sight” language is entirely divorced from
the dispersal requirement. The provision requiring multiple
seating locations comes at the end of the regulation and does not
in any way modify the earlier requirements.
Second, the phrase “choice of” modifies only “admissions
prices” and not “lines of sight.” Indeed, the DOJ has consistently
treated “comparable choice of admission prices” and “comparable
lines of sight” as two separate requirements. See, e.g., ADAAG, 28
C.F.R. pt. 36, App. B at 650 (1999)(“the final rule adds . . . a
requirement that . . . wheelchair seating provide lines of sight
3
Cinemark also invokes Section 4.33.3's exemption for
“bleachers, balconies, and other areas having sight lines that
require slopes of greater than 5 percent.” ADAAG § 4.33.3. In
these areas, “equivalent accessible viewing positions may be
located on levels having accessible egress” and may be clustered.
Id. Cinemark notes that its stadium-style seating requires a slope
well in excess of five percent and argues that it is therefore
exempt from section 4.33.3. The 5 percent slope exemption,
however, permits only the clustering of seats. It does not permit
Cinemark to avoid section 4.33.3's comparable line of sight
requirement.
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and choice of admission prices comparable to those for the general
public”); 1994 DOJ Technical Assistance Manual (“TAM”) Supp. § III-
7.5180 (In addition to requiring . . . dispersion of wheelchair
locations, ADAAG requires that wheelchair locations provide people
with disabilities lines of sight comparable to those for members
of the general public.”). Regardless of whether the DOJ’s
interpretation demands deference, these statements demonstrate
that, since the inception of section 4.33.3, the Department has
consistently treated “choice of admissions prices” and “lines of
sight” as two separate requirements. Cf. Paralyzed Veterans of
America v. D.C. Arena, L.P., 117 F.3d 579, 588 (D.C. Cir. 1997)
(holding that the Department’s TAM is entitled to deference).
Third, Cinemark’s interpretation effectively reads out the
opening clause of the “lines of sight” portion of section 4.33.3,
which explains that “wheelchairs shall be an integral part of any
fixed seating plan and shall be provided as to provide people with
physical disabilities with a choice of . . . lines of sight
comparable to those for members of the general public.” (emphasis
added).
Finally, by applying section 4.33.3 only in instances where
seating capacity exceeds 300, Cinemark would permit smaller
theaters to avoid all of the placement requirements of the section,
including its demand that wheelchair seating “adjoin an accessible
route that also serves as a means of egress in case of emergency.”
Such an interpretation would contravene the very purpose of the
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regulation and of the ADA. Accordingly, we conclude that section
4.33.3 imposes two independent requirements: (1) that theaters with
over three-hundred seats provide wheelchair spaces in more than one
location, and (2) that smaller facilities provide people with
physical disabilities with lines of sight and choice of ticket
prices comparable to those enjoyed by the general public. Accord
Paralyzed Veterans of America, 117 F.3d at 583 (holding that lines
of sight requirement is independent of dispersal requirement).
B.
Cinemark next contends that its theaters do afford wheelchair-
bound moviegoers with “lines of sight comparable to those for
members of the general public.” According to Cinemark, the
wheelchair areas are “comparable” because they are located in the
midst of general seating and do not suffer from any obstructions.
The text of section 4.33.3 provides little guidance as to
whether theaters must provide wheelchair-bound moviegoers with
comparable viewing angles or simply unobstructed lines of sight.
And although a number of courts have considered whether section
4.33.3 requires auditoria to provide wheelchair seating areas with
lines of sight that are unobstructed by standing spectators, no
court has considered whether theaters must provide those seating
areas with “viewing angles” that are as comfortable as those
enjoyed by the general public. See, e.g.,Paralyzed Veterans, 117
F.3d at 583-4 (holding that 4.33.3 does require auditorium-owners
to provide wheelchair areas with lines of sight unobstructed by
standing spectators); Caruso v. Blockbuster-Sony Music
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Entertainment Ctr. at the Waterfront, 193 F.3d 730, 736 (3d Cir.
1999)(holding that 4.33.3 does not reach issue of sightlines over
standing spectators); Independent Living Resources v. Oregon Arena
Corp., 982 F.Supp. 698, 743 (D. Or. 1997)(holding that 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”).
Unlike questions of “viewer obstruction,” which the DOJ and
Access Board explicitly considered before issuing section 4.33.3,
see 56 Fed. Reg. 2296, 2314 (1991); 56 Fed. Reg. 35408, 35440
(1991), questions regarding “viewing angle” did not arise until
well after the DOJ promulgated section 4.33.3. Similarly, while
the DOJ’s 1994 Technical Assistance Manual explicitly requires
theaters to provide “lines of sight over spectators who stand,” the
manual does not address problems involving viewing angles. See
1994 DOJ TAM Supp. § III-7.5180. Indeed, the Access Board has just
recently proposed modifying section 4.33.3 to require explicitly
that auditoria provide wheelchair-users with unobstructed lines of
sight. 64 Fed. Reg. 62248, 62277-78 (Nov. 16,1999). As the Access
Board explained:
DOJ has asserted in attempting to settle particular
cases that wheelchair seating locations [in stadium-
style theaters] must: (1) be placed within the
stadium-style section of the theater . . .; (2)
provide viewing angles that are equivalent or better
than the viewing angles . . . provided by 50 percent
of the seats in the auditorium, counting all seats of
any type sold in that auditorium; and (3) provide a
view of the screen, in terms of lack of obstruction .
. . that is in the top 50 percent of all seats of any
type sold in the auditorium. The Board is considering
whether to include specific requirements in the final
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rule that are consistent with the DOJ’s interpretation
of 4.33.3 to stadium-style movie theaters.
64 Fed. Reg. at 62278. Significantly, the proposed regulations
define “line of sight” problems only in the context of obstructed
views, and recognize that additional language will be necessary to
codify the DOJ’s litigating position. Id.
Moreover, although it appears that at the time the DOJ adopted
Section 4.33.3, the phrase “lines of sight” lacked a clear meaning
in the ADA context, it is clear that in a number of other contexts,
the phrase meant unobstructed view. See, e.g., 47 C.F.R. § 73.685
(2000)(FCC regulation requiring that antennae have line of sight,
without obstruction, of the communities that they serve); 46 C.F.R.
§ 13.103 (2000)(defining direct supervision as having line of sight
of the person being supervised); 36 C.F.R. § 2.18 (2000)(forbidding
people under age 16 from operating snowmobiles unless they are
“within line of sight” of a responsible person over age 21).
In light of the lack of any evidence that the Access Board
intended section 4.33.3 to impose a viewing angle requirement, the
Board’s recent statement that it had not yet decided whether to
adopt the DOJ’s litigating position with respect to stadium-style
theaters, and the common meaning of “lines of sight,” we cannot
conclude that the phrase “lines of sight comparable” requires
anything more than that theaters provide wheelchair-bound patrons
with unobstructed views of the screen. To impose a viewing angle
requirement at this juncture would require district courts to
interpret the ADA based upon the subjective and undoubtedly diverse
preferences of disabled moviegoers. Congress granted the DOJ, in
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conjunction with the Access Board, the authority to promulgate
regulations under the ADA in order to provide the owners and
operators of places of public accommodation with clear guidelines
for accommodating disabled patrons. See generally House Report No.
101-485(I), at 124-25, 139-40 (1990), reprinted in 1990
U.S.C.C.A.N. 407-08, 421-22. Accordingly, in the absence of
specific regulatory guidance, we must hold that section 4.33.3 does
not require movie theaters to provide disabled patrons with the
same viewing angles available to the majority of non-disabled
patrons.
Plaintiffs neither contend that Tinseltown’s wheelchair-
accessible seating suffers an obstructed view, nor dispute that
Tinseltown located the wheelchair seating amidst general public
seating. As such, the district court erred, as a matter of law, in
finding that Cinemark failed to provide wheelchair-bound patrons
with lines of sight comparable to those for members of the general
public.
III.
For the foregoing reasons, the judgment of the district court
is REVERSED and judgment is RENDERED for Defendants.
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