Number range CHAPTERRALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN S. GORDON

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

LEON M. WEIDMAN

Assistant United States Attorney

MICHELE MARCHAND

Assistant United States Attorney

California Bar No. 93390

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-2727

Facsimile: (213) 894-7819

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Disability Rights Section

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Case No.: CV-99-01034-FMC (SHx)

)

Plaintiff, ) MEMORANDUM OF PLAINTIFF

) UNITED STATES IN OPPOSITION

) TO AMC'S MOTION FOR \[PARTIAL\]

v\. ) SUMMARY JUDGMENT

)

) DATE: Nov. 18, 2002

AMC ENTERTAINMENT, INC., ) TIME: 10:00 a.m.

[et]{.underline} [al]{.underline}., ) JUDGE: Hon. Florence-Marie Cooper

)

)

Defendants. )

[                                                                       ]{.underline}

[TABLE OF CONTENTS]{.underline}

**INTRODUCTION** 1

**ARGUMENT** 2

A. [AMC's Summary Judgment Memorandum Misrepresents the History and\
Caselaw Underlying Standard 4.33.3\'s Comparable-Lines-of-Sight
Requirement]{.underline} 2

> 1\. *Deconstructing AMC's "Revisionist" View of the Regulatory History
> of\
> Standard 4.33.3 and Its Purported "Compliance" With DOJ "Guidance"* 2
>
> a\. Standard 4.33.3\'s Regulatory Heritage Provides No Support for\
> AMC's "Obstruction Only" Interpretation of the Regulation's\
> Comparable-Lines-of-Sight Requirement 2
>
> b\. AMC's "Compliance" Argument Finds No Support In the Record\
> And, In Any Event, Raises Disputed Factual Issues That Are Not\
> Amenable to Summary Judgment 4
>
> 2\. *AMC Misstates the United States' Position With Respect to
> Standard 4.33.3\'s\
> Comparability Requirement* 9
>
> 3\. *AMC Ignores Relevant Caselaw Addressing Standard 4.33.3 In the\
> Context of Stadium-Style Movie Theaters and Places Undue Reliance\
> on the Fifth Circuit's Decision in [Lara v. Cinemark]{.underline}* 10
>
> a\. AMC's Summary Judgment Memorandum Ignores Federal Cases\
> Contrary To Its "Obstruction Only" View of Standard 4.33.3\'s\
> Comparability Requirement 11
>
> b\. The Fifth Circuit's Reading of Standard 4.33.3 in Lara II Is
> Seriously\
> Flawed 12

B. [Standard 4.33.3 Provides a Sufficiently Precise Comparability
Requirement And,\
Therefore, Is Neither Unconstitutionally Vague Nor Violative of Due
Process]{.underline} 17

C. [Lara Does Not Mandate Judgment In Favor of AMC on Its Stadium-Style
Theater Complexes in Texas]{.underline} 22

D. [Standard 4.33.3\'s "Clustering" Exception Does Not Apply to AMC's
Stadium-Style Movie Theaters]{.underline} 24

**CONCLUSION** 25

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

> *Allstate Insurance Co. v. Stevens*,
>
> 445 F.2d 845 (9th Cir. 1971) 11
>
> *Barden v. City of Sacramento*,
>
> 292 F.3d 1073 (9th Cir. 2002) 16
>
> *Botosan v. Paul McNally Realty*,
>
> 216 F.3d 827 (9th Cir. 2000) 17, 20
>
> *Boutilier v. Immigration and Naturalization Service*,
>
> 387 U.S. 118, 87 S. Ct. 1563 (1967) 17
>
> *Boyce Motor Lines v. United States*,
>
> 342 U.S. 337, 72 S. Ct. 329 (1952) 19
>
> *Chalmers v. City of Los Angeles*,
>
> 762 F.2d 753 (9th Cir. 1985) 19
>
> *Coates v. City of Cincinnati*,
>
> 402 U.S. 611, 91 S. Ct. 1686 (1971) 17
>
> *Colby v. J.C. Penny Co., Inc.*,
>
> 811 F.2d 1119 (7th Cir. 1987) 21, 22
>
> *Doyle v. Secretary of Health & Human Service*,
>
> 848 F.2d 296 (1st. Cir. 1988) 19
>
> *Fiedler v. American Multi-Cinema, Inc.*,
>
> 871 F. Supp. 35 (D.D.C. 1994) *passim*
>
> *Freeman United Coal Mining Co. v. Federal Mine Safety & Health
> Review*
>
> *Commission*,
>
> 108 F.3d 358 (D.C. Cir. 1997) 19
>
> *Georgia Pacific Corp. v. O.S.H.R.C.*,
>
> 25 F.3d 999 (11th Cir. 1994) 19
>
> *Grayned v. City of Rockford*,
>
> 408 U.S. 104, 92 S. Ct. 2294 (1972) 19
>
> *Great American Houseboat Co v. United States*,
>
> 780 F.2d 741 (9th Cir. 1986) 17
>
> *Gunther v. Washington County*,
>
> 623 F.2d 1303 (9th Cir. 1979) 11
>
> *Hason v. Medical Board of Cal.*,
>
> 279 F.3d 1167 (9th Cir.) 16
>
> *Lara v. Cinemark*,
>
> 207 F.3d 783 (5th Cir. 2000) *passim*
>
> *Meineker v. Hoyts Cinemas Corp.*,
>
> 216 F. Supp. 2d 14 (N.D.N.Y. 2002),
>
> [appeal docketed]{.underline}, No. 02-9034 (2nd Cir. Aug. 26, 2002)
> 10, 11
>
> *Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc.*,
>
> 142 F. Supp. 2d 1293 (D. Or. 2001), [appeal docketed]{.underline}, No.
> 01-35554 (9th
>
> Cir. June 13, 2001) 11
>
> *Paralyzed Veterans of America v. D.C. Arena L.P.*,
>
> 117 F.3d 579 (D.C. Cir. 1997), [cert]{.underline}.
> [denied]{.underline}, 523 U.S. 1003 (1998) 4, 14
>
> *Pinnock v. International House of Pancakes Franchise*,
>
> 844 F. Supp. 574 (S.D. Cal. 1993) 17, 20
>
> *Railway Labor Executives\' Association v. Interstate Commerce
> Commission*,
>
> 784 F.2d 959 (9th Cir. 1986) 21
>
> *Rock of Ages Corp. v. Secretary of Labor*,
>
> 170 F.3d 148 (2nd Cir. 1999) 19
>
> *Tcherepnin v. Knight*,
>
> 389 U.S. 332, 88 S. Ct. 548 (1967) 16
>
> *Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.*,
>
> 455 U.S. 489, 102 S. Ct. 1186 (1982) 17

**DOCKETED CASES**

> *Arnold v. United Artists Theater Circuit, Inc.*,
>
> Case No. 93-0079 6
>
> *Lara v. Cinemark U.S.A., Inc.*,
>
> C.A. No. EP-97-CA-502-H, 1998 WL 1048497 (W.D. Tex. Aug. 21, 1998)
> 6,10
>
> *United States v. Cinemark USA, Inc.*,
>
> Case No. 1:99 CV-705 (N. D. Ohio Nov. 19, 2001), [appeal
> docketed]{.underline}, No.
>
> 02-3100 (6th Cir. Jan. 24, 2002) 11

**STATUTES**

> 5 U.S.C. § 551. 20
>
> 42 U.S.C. § 12186(b) 14
>
> 42 U.S.C. § 12186(c) 14
>
> 28 C.F.R. Part 26, App. A, § 4.33.3 *passim*
>
> 36 C.F.R. § 1190.6 18
>
> 36 C.F.R. § 2.18 12
>
> 46 C.F.R. § 13.103 12
>
> 47 C.F.R. § 73.685 12
>
> 45 Fed. Reg. 55,010 (Aug. 18, 1980) 3
>
> 46 Fed. Reg. 4,270 (Jan. 16, 1981) 3,18
>
> 47 Fed. Reg. 33,862 (Aug. 4, 1982)) 3,18
>
> 49 Fed. Reg. 31,528 (Aug. 7, 1984) 3
>
> 56 Fed. Reg. 35,408 (July 26, 1981) 3,14,18
>
> 56 Fed. Reg. 35,544 (July 26, 1991) 18
>
> 64 Fed. Reg. 62,248 (Nov. 16, 1999) 16

**[INTRODUCTION]{.underline}**

The recently-filed motion for partial summary judgment by defendants AMC
Entertainment, Inc. and American Multi-Cinema, Inc. \[hereinafter
collectively referred to as "AMC"\] largely proves an exercise in legal
and factual fiction. In this motion, AMC seeks to have this Court enter
a partial summary judgment order in its favor on three separate aspects
of this action: (i) the "enforceability" of the Department's
interpretation of 28 C.F.R. Part 36, App. A, § 4.33.3 ("Standard
4.33.3\"), a regulation mandating that, among other things, movie
patrons who use wheelchairs "be provided . . . lines of sight comparable
to those for members of the general public"; (ii) the constitutionality
of the Department's allegedly retroactive application of an
interpretation of Standard 4.33.3 that was "first promulgated in July
1998 in the amicus brief the Department filed with the District Court in
[Lara v. Cinemark]{.underline}, 207 F.3d 783 (5th Cir. 2000)"; and (iii)
the authority of this Court to render judgment with respect to AMC's
stadium-style theaters located in the Fifth Circuit in light of the
[Lara]{.underline} decision. [See]{.underline} Memorandum of Points and
Authorities In Support of AMC's Motion for Summary Judgment (filed Sept.
26, 2002) (Docket \# 346 ) ("AMC SJ Mem.").

Each of AMC's summary judgment arguments lack merit and should,
therefore, be rejected by this Court. AMC's memorandum is littered with
faulty legal reasoning, factual misstatements, and mischaracterizations
of both the Department's interpretation of Standard 4.33.3 and its
position in this action. Indeed, the primary "factual" support for AMC's
summary judgment claims rests not on deposition testimony or
declarations offered by AMC officials but, rather, the statements of
AMC's lead trial counsel. [See]{.underline} Motion to Strike Declaration
of Attorney Gregory F. Hurley (filed Oct. 28, 2002) (Docket \# 371).
Read in the proper legal and factual context, it is plain that the
Department has reasonably and consistently interpreted Standard
4.33.3\'s comparable-lines-of-sight requirement as requiring movie
theater operators to provide patrons who use wheelchairs with a view of
a movie screen \-- including such factors as obstructions, viewing
angles, and distance from the screen \-- that is similar or equal to the
views offered to most other patrons in the theater. Such an
interpretation, moreover, suffers from no constitutional infirmities
since it is neither impermissibly vague nor violative of the due process
clause. Finally, the Fifth Circuit's [Lara]{.underline} decision (which
the Department believes is seriously flawed) does not, in any event,
preclude this Court from exercising its own independent judgment in this
action.

**ARGUMENT**

**A. [AMC's Summary Judgment Memorandum Misrepresents the History and\
Caselaw Underlying Standard 4.33.3\'s Comparable-Lines-of-Sight
Requirement]{.underline}**

> **1. *Deconstructing AMC's "Revisionist" View of the Regulatory
> History of\
> Standard 4.33.3 and Its Purported "Compliance" With DOJ "Guidance" ***

AMC's memorandum in support of its motion for partial summary judgment
begins with a discussion of the purported "evolution" and "origins" of
Standard 4.33.3\'s comparability requirement. [See]{.underline} AMC Mem.
at 1- 4; [see]{.underline} [also]{.underline} [id]{.underline}. at 11,
13 - 15. AMC's memorandum also makes much of its alleged "compliance"
with settlement agreements, speeches, briefs, or other materials
authored by the Department or Department officials that addressed
Standard 4.33.3 in the context of movie theaters. [Id]{.underline}.
AMC's discussion on these topics, however, amounts to a "revisionist"
view of history that cannot be squared with actual events.

> a\. Standard 4.33.3\'s Regulatory Heritage Provides No Support for\
> AMC's "Obstruction Only" Interpretation of the Regulation's\
> [Comparable-Lines-of-Sight
> Requirement                                    ]{.underline}

First, the regulatory history of Standard 4.33.3 fails to support AMC's
contention that the phrase "lines of sight" has been used in other
federal accessibility regulations since 1980 to "refer\[\] to
obstruction, not viewing angle." AMC SJ Mem. at 14. As an historical
matter, it appears true that, as AMC contends, the text of Standard
4.33.3\'s comparable-lines-of-sight requirement can be traced back to
private accessibility guidelines published by the American National
Standards Institute ("ANSI") in 1980. [See]{.underline} ANSI
A117.1-1980, § 4.33.3 & App. 1 (copy attached as Exhibit 9 to Plaintiff
United States' Appendix In Opposition to AMC's Motion for \[Partial\]
Summary Judgment (filed Nov. 4, 2002) ("US SJ Opp. App.")). ANSI
A117.1-1980 provided, in pertinent part, that wheelchair locations in
assembly areas

> shall be an integral part of any fixed seating plan and shall be
> dispersed throughout the seating area. They shall adjoin an accessible
> route that also serves as a means of egress in case of emergency and
> ***shall be located to provide lines of sight comparable to those for
> all viewing areas***.

ANSI A117.1-1980, § 4.33.3 (emphasis added). ANSI A117.1-1980's language
was subsequently adopted with some modification by the Architectural and
Transportation Barriers Compliance Board ("Access Board") when issuing
its accessibility guidelines for federal buildings -- the "Minimum
Guidelines and Requirements for Accessible Design" (commonly referred to
as "MGRAD"). [See]{.underline}, [e.g]{.underline}., 45 Fed. Reg. 55,010,
55019, 55,044 (Aug. 18, 1980) (MGRAD notice of proposed rulemaking
regarding placement of wheelchair locations in assembly areas) (US SJ
Opp. App., Ex. 10); 46 Fed. Reg. 4,270, 4,281, 4,304 (Jan. 16, 1981)
(final MGRAD rule regarding placement of wheelchair locations in
assembly areas) (US SJ Opp. App., Ex. 11); 47 Fed. Reg. 33, 862, 33, 893
(Aug. 4, 1982) (MGRAD amendments) (US SJ Opp. App., Ex. 12).[^1] MGRAD,
in turn, served as the basis (again with some modification) for the
"Uniform Federal Accessibility Standards" ("UFAS") issued by four
federal standard-setting agencies to provide uniform accessibility
standards for use by all federal agencies. [See]{.underline} 49 Fed.
Reg. 31,528, 31, 593 (Aug. 7, 1984) (UFAS final rule regarding placement
of wheelchair locations in federal assembly areas) (US SJ Opp. App., Ex.
13). Finally, the Access Board's "ADA Accessibility Guidelines for
Buildings and Facilities" ("ADAAG") issued in 1991 built on this
regulatory heritage \-- ANSI, MGRAD, and UFAS -- when establishing its
minimum guidelines for the placement of wheelchair locations in assembly
areas. [See]{.underline} 56 Fed. Reg. 35,408, 35,408 - 35, 411, 35,
424 - 35, 425, 35, 514, 35,540-41 (July 26, 1991) (ADAAG final rule) (US
SJ Opp. App., Ex. 15).

Careful review of this underlying history, however, reveals no support
for AMC's theory that Standard 4.33.3\'s predecessor regulations and
guidelines \-- ANSI, MGRAD, UFAS, and ADAAG -- were written in such a
way that the phrase "lines of sight" referred only to obstruction.
Nowhere do these historical sources discuss obstructions or, for that
matter, any other factor affecting the nature and quality of the "lines
of sight" beyond the requirement that there be comparability between the
sight lines offered spectators who use wheelchairs and those offered to
most other members of the audience. That is, while the phraseology
changed slightly over the years, these sources neither explained nor
discussed their respective uses of the comparable-lines-of-sight
requirement in the text or preamble of any of the various documents,
either as proposals or final standards. Instead, the language appears
simply to have been handed down from one accessibility guideline to
another. AMC thus cannot credibly claim that these historical regulatory
sources suggest, let alone compel, a finding that Standard 4.33.3\'s
comparability requirement should be read as referring only to visual
obstructions. [See]{.underline} [Paralyzed Veterans of America v. D.C.
Arena L.P.]{.underline}, 117 F.3d 579, 583 (D.C. Cir. 1997) (examining
the regulatory origins of Standard 4.33.3, including ANSI A117.1-1980,
and declining to hold that the phrase "'lines of sight comparable' had
developed a universally accepted linguistic meaning contrary to the one
Justice asserts" concerning lines of sight in sports arenas),
[cert]{.underline}. [denied]{.underline}, 523 U.S. 1003 (1998).

> b\. AMC's "Compliance" Argument Finds No Support In the Record And,\
> In Any Event, Raises Disputed Factual Issues That Are Not Amenable to
> [Summary
> Judgment                                                                                    ]{.underline}

AMC's claim that it has purportedly "complied" with alleged directives
or guidance issued by the Department or Department officials over the
years regarding the application of Standard 4.33.3 to movie theaters
proves to be yet another exercise in historical fiction.
[See]{.underline} AMC SJ Mem. at 2- 4, 11. As discussed below, AMC's
"compliance" argument is largely erected on either mischaracterizations
of Departmental guidance, or factual misstatements by counsel for AMC
which find no support in the record, or both. Moreover, to the extent
AMC raises this argument in order to establish that it has, in fact,
complied with Standard 4.33.3\'s comparable-lines-of-sight requirement,
such an argument presents disputed issues of material fact that are not
appropriate for summary judgment.

As an initial matter, it is unclear whether AMC intends its purported
"compliance" argument to support its affirmative defenses (such as
equitable estoppel) or, rather, whether AMC offers this argument as
substantive "evidence" that its stadium-style theaters at issue in this
litigation do in fact comply with Standard 4.33.3\'s comparability
requirement. Pinpointing the legal basis for AMC's "compliance" argument
proves unnecessary, however, since neither of these arguments affords
any basis for granting AMC's instant motion for partial summary
judgment. First, as discussed in the United States' memorandum in
support of its motion for partial summary judgment on AMC's affirmative
defenses, AMC cannot erect a legally viable equitable estoppel defense
both because estoppel rarely (if ever) lies against the federal
government, and because none of the DOJ statements or guidance with
which AMC allegedly "complied" were in any way contradictory to the
Department's consistent and longstanding interpretation of Standard
4.33.3\'s comparable-lines-of-sight requirement. [See]{.underline}
Plaintiff United States' Memorandum In Support of Motion for Partial
Summary Judgment on Defendants' Affirmative Defenses 11-14 (filed Sept.
30, 2002) ("US SJ Affirm. Def. Mem."); [see]{.underline}
[also]{.underline} Plaintiff United States' Reply Memorandum In Support
of Motion for Partial Summary Judgment on Defendants' Affirmative
Defenses 5-11 (filed Oct. 15, 2002) (Docket \# 361).[^2] Moreover, to
the extent AMC offers "evidence" of "compliance" with DOJ guidelines as
substantive evidence of its purported satisfaction of Standard 4.33.3\'s
comparable-lines-of-sight requirement, such an argument is equally
misplaced on several accounts. As discussed below, AMC's "compliance"
argument finds no support in the factual record. Such an argument,
moreover, raises disputed issues of material fact that are inappropriate
for summary adjudication.

Turning to the substance of AMC's "compliance" argument, this claim is
premised on a widely-divergent collection of events and documents. In
summary, AMC alleges that: (i) based on [Fiedler v. American
Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35 (D.D.C. 1994) in which
the Untied States participated as an *amicus* *curiae*, as well as on a
1994 Supplement to the Department's ADA Technical Assistance Manual, AMC
placed its wheelchair locations in the front of its stadium-style
theaters; (ii) based on a 1996 multi-party settlement agreement in
[Arnold v. United Artists Theater Circuit, Inc.]{.underline}, Case No.
93-0079 THE (N.D. Cal.) to which the United States was a signatory, AMC
placed its wheelchair locations in the fourth row of its stadium-style
theaters; and that (iii) within "three months" of learning of the
Department's *amicus* brief filed in July 1998 in [Lara v. Cinemark,
U.S.A., Inc.]{.underline}, C.A. No. EP-97-CA-502-H (W.D. Tex. July 24,
1998), AMC amended the design criteria for its stadium-style theaters
"so that wheelchair spaces provided vertical viewing angles in the range
provided most of the general public in the stadium seating."
[See]{.underline} AMC SJ Mem. at 2-4, 11.[^3]

None of these documents or events, however, provides any support for
AMC's "compliance" argument. Rather, review of the factual record
underlying each of these matters reveals that AMC's claims are so
lacking in support as to border on frivolity. Since the United States'
Statement of Genuine Issues In Opposition to Defendant AMC's Motion for
\[Partial\] Summary Judgment (filed Nov. 4, 2002) ("US SJ Opp. Facts")
contains a detailed discussion of the factual inaccuracies underlying
AMC's "compliance" argument, these matters will not be discussed at
length in this memorandum. However, a few examples will illustrate the
dubious nature of AMC's "compliance" claims.

First, while AMC claims that the [Fiedler]{.underline} litigation (and
the United States' *amicus* brief therein) prompted it to place
wheelchair locations at the front of its stadium-style theaters, neither
the United States nor the plaintiff in that action made any such
argument.[^4] Rather, Mr. Fiedler alleged in his complaint that all of
the traditional, sloped-floor theaters at the AMC Union Station theater
complex in Washington, D.C. impermissibly relegated wheelchair patrons
to the back rows (or behind the back rows) of the theaters farthest from
the screen, and that he "wished to sit near the ***middle*** of the
theater\[s\]." (Emphasis added.) [See]{.underline} US SJ Opp. App., Ex.
19; US SJ Opp. Facts at 2-3. Thus, contrary to AMC's after-the-fact
re-creation of history, AMC could not have placed its wheelchair
locations at the front of its stadium-style theaters as a result of
[Fiedler]{.underline}. Instead, according to one former senior AMC
official who helped develop the AMC Grand 24 theater complex -- AMC's
first stadium-style theater complex -- the placement of wheelchair
locations in the front row of these theaters was largely an afterthought
because AMC was so focused on refining the stadium concept to provide
enhanced sight lines for ambulatory patrons in the stadium-style seating
section. [See]{.underline} US SJ Opp. Facts at 3; [see]{.underline}
[also]{.underline} Stmnt. of Uncontroverted Facts and Conc. of Law In
Support of Pl. United States' Motion for Partial Summary Judgment Re:
Lines of Sight Issues ¶¶ 86-88 (lodged Oct. 28, 2002) ("US SJ Facts").

Second, while AMC alleges that the 1996 [Arnold]{.underline} agreement
caused AMC to modify its plans for future stadium-style theaters so that
wheelchair locations were no closer than the fourth row, in numerous
instances AMC simply inserted an "extra" row or two of seats at the very
front of its theaters in a cynical attempt to make it ***appear*** as if
the wheelchair locations had been moved farther back from the screen
when, in fact, the distance between the wheelchair locations and the
screen never changed. [See]{.underline} US SJ Opp. Facts at 6. In any
event, the 1996 [Arnold]{.underline} settlement agreement was primarily
concerned with dispersal and integration issues -- rather than "lines of
sight" issues -- since United Artists had not yet built any
stadium-style theaters as of the date of this agreement.
[See]{.underline} [id]{.underline}. at 4-5.

Finally, supported only by the statements of AMC's trial counsel, AMC
alleges that "within three months" of learning of the Department's
[Lara]{.underline} *amicus* brief, AMC modified its design criteria so
that wheelchair spaces in future stadium-style theaters would be
provided the same vertical viewing angles as were provided to most of
the general public in the stadium seating section. [See]{.underline} AMC
SJ Mem. at 11. This contention is factually incorrect on two accounts.
First, AMC's 30(b)(6) representative stated in deposition that he had
"no idea" when AMC received a copy of the Department's
[Lara]{.underline} brief, and that he would have been the person at AMC
to have received the brief. [See]{.underline} US SJ Opp. Facts at 13.
Second, when AMC did eventually modify its design criteria to expressly
account for vertical viewing angles (though apparently not in response
to the Department's [Lara]{.underline}'s brief ), there was no effort
made to ensure that wheelchair patrons were afforded viewing angles that
compared favorably with those offered to audience members seated in the
stadium section or to any patrons in the theater. [Id]{.underline}.

Taken together, the cumulative weight of these factual inaccuracies and
misstatements dooms AMC's "compliance" argument. AMC\'s memorandum is
replete with misrepresentations seeking to provide after-the-fact
rationalizations for its placement of wheelchair seating in locations
with inferior lines of sight in its stadium-style theater complexes.
Indeed, several AMC officials have admitted that AMC was providing
inferior, non-comparable lines of sight to its wheelchair patrons by
locating these seats on the sloped-floor portion of the majority of its
stadium-style theaters. [See]{.underline} Mem. In Support of Pl. United
States' Motion for Partial Summary Judgment Re: Line of Sight Issues 9,
18-20, 24 (filed Oct. 28, 2002) (Docket \# 367) ("US SJ Mem."); US SJ
Facts ¶¶ 42, 79-94. Over and over again, depositions and documents in
the record demonstrate that, whether due to design, neglect, market
forces, or other reasons, AMC placed wheelchair locations outside the
stadium seating sections, lower and closer to the screen, in the
overwhelming majority of its stadium-style theaters \-- despite a flood
of complaints by disabled patrons, their moviegoing companions, local
building officials, and even, on occasion, AMC officials themselves.
[See]{.underline} US SJ Mem. at 7-9; US SJ Facts ¶¶ 19-42, 79-94,
1-5-06. Yet regardless of whether AMC violated the ADA through
negligence or knowing discrimination, its corporate decisionmaking
relegated patrons who use wheelchairs to inferior seating locations at
the vast majority of its stadium-style theaters, and the record suggests
that these decisions had nothing to do with guidance from the Department
of Justice.

Indeed, perhaps the greatest irony of AMC's "compliance" argument is
that, prior to the filing of this enforcement action, AMC understood and
agreed that Standard 4.33.3\'s comparability requirement referred to
more than simply "obstructions." That is, when litigating the
[Fiedler]{.underline} case in January 1995, AMC confidently stated that
the phrase "lines of sight" in Standard 4.33.3 encompassed viewing
angles:

> Lines of sight for a patron in an auditorium are measured with
> reference to the horizontal and vertical angles of view the eye must
> encompass in seeing the screen. For vertical sight lines, the angular
> measurement extends from the horizontal line of sight vertically to
> the sight line directed to the top of the screen . . . It is self
> evident . . . that . . . . sight lines are steepest in the front and
> flatten out in moving to the rear\[.\]\"

\[AMC's\] Memorandum of Points and Authorities In Support of Motion for
Order of Certification and Stay 4-5 (dated Jan. 31, 1995) (U.S. SJ App.,
Vol. 3, Ex. 108). In light of this admission, it strains credulity for
AMC to argue now that it was somehow confused or mislead by purported
guidance or statements by DOJ officials.

> **2. *AMC Misstates the United States' Position With Respect to
> Standard 4.33.3\'s\
> Comparability Requirement***

As with other inaccuracies in its brief, AMC's summary judgment
memorandum also fundamentally mischaracterizes the United States'
position with respect to Standard 4.33.3\'s comparability requirement.
The United States does not, as AMC alleges, read Standard 4.33.3 as
imposing a "specific numerical" vertical viewing angle requirement. AMC
Mem. at 8, 13. Nor is the United States asking this Court to "adopt" its
*amicus* brief filed in the [Lara]{.underline} litigation.
[Id]{.underline}. at 4-6; [see]{.underline} [also]{.underline} Plaintiff
United States' Statement of Genuine Issues In Opposition to AMC's
\[Partial\] Motion for Summary Judgment, Response to AMC Fact No. 12
(filed Nov. 4, 2002) ("US SJ Opp. Facts"). Rather, as discussed in the
United States' summary judgment memorandum, the relevant issue is
whether the Department of Justice has reasonably construed Standard
4.33.3\'s comparable-lines-of-sight requirement as requiring movie
theater operators to provide wheelchair users with a view of the movie
screen \-- including such factors as physical obstructions, viewing
angles, and distance from the screen \-- that is similar or equal to the
views offered to most other patrons in the theater. [See]{.underline} US
SJ Mem. at 10-11. For the reasons stated in its prior memorandum, the
United States urges this Court to affirm this reading of Standard 4.33.3
since it not only best comports with the language of the regulation, but
also materially advances the anti-discrimination goals underlying Title
III of the ADA and its implementing regulations. [See]{.underline} US SJ
Mem. at 11-17.

> ***3. AMC Ignores Relevant Caselaw Addressing Standard 4.33.3 In the\
> Context of Stadium-Style Movie Theaters and Places Undue Reliance\
> on the Fifth Circuit's Decision in [Lara v. Cinemark]{.underline}***

AMC's discussion of the federal caselaw addressing Standard 4.33.3 in
the context of stadium-style movie theaters proves an exercise in legal
obfuscation. AMC's summary judgment memorandum baldly asserts that
"\[t\]o date, every court has rejected the Department's position as
going beyond the plain language of § 4.33.3.\" AMC SJ Mem. at 1, 7. AMC,
moreover, suggests that this Court should forsake its own independent
legal judgment and simply defer to the Fifth Circuit's decision in [Lara
v. Cinemark USA, Inc.]{.underline}, 207 F.3d 783 (5th Cir.),
[cert]{.underline}. [denied]{.underline}, 531 U.S. 944 (2000) ("[Lara
II]{.underline}") which held that Standard 4.33.3\'s comparability
requirement only requires that movie patrons who use wheelchairs be
provided "unobstructed" views of the screen. AMC is wrong on both
accounts. First, AMC's cavalier assertion notwithstanding, several
courts have indeed held that Standard 4.33.3\'s comparability
requirement encompasses viewing angles and mandates a qualitative
comparison between the lines of sight offered physically disabled and
ambulatory movie patrons. Second, this Court need not defer to the Fifth
Circuit's [Lara]{.underline} decision since this ruling not only lacks
precedential value in the Ninth Circuit, but also is seriously flawed.

> a\. AMC's Summary Judgment Memorandum Ignores Federal Cases Contrary\
> [To Its "Obstruction Only" View of Standard 4.33.3\'s Comparability
> Requirement]{.underline}

AMC's statement that "every court has rejected the Department's
position" regarding Standard 4.33.3\'s comparability requirement is
patently false. AMC SJ Mem. at 1, 7. As discussed in the United States'
memorandum in support of its motion for summary judgment, several
federal courts -- including the most recent court to address this issue
([Meineker v. Hoyts Cinemas Corp]{.underline}.) -- have indeed held that
Standard 4.33.3\'s comparability requirement encompasses viewing angles
and mandates a qualitative comparison between the lines of sight offered
physically disabled and ambulatory movie patrons. [See]{.underline} US
SJ Mem. at 20-23 (collecting and discussing cases); [Meineker v. Hoyts
Cinemas Corp.]{.underline}, 216 F. Supp. 2d 14 (N.D.N.Y. 2002) (holding
that "\[t\]he requirement \[in Standard 4.33.3\] that a line of sight be
'comparable' clearly imposes a qualitative requirement that the sight
line be 'similar' and not merely 'similarly unobstructed' . . . it would
not be sufficient for defendant \[Hoyts Cinemas\] to merely provide
lines of sight to the screen that are unobstructed"), [appeal
docketed]{.underline}, No. 02-9034 (2nd Cir. Aug. 26, 2002); [Lara v.
Cinemark U.S.A., Inc.]{.underline}, C.A. No. EP-97-CA-502-H, 1998 WL
1048497 (W.D. Tex. Aug. 21, 1998) ("[Lara I]{.underline}")
(characterizing defendant's stadium-style movie theaters as "Headache
City" and holding that these theaters did not offer disabled patrons
comparable views of the screen due to excessive viewing angles),
[revs'd]{.underline}, 207 F.3d 783 (5th Cir.) ("[Lara II]{.underline}"),
[cert]{.underline}. [denied]{.underline}, 531 U.S. 944 (2000);
[see]{.underline} [also]{.underline} [Fiedler v. American Multi-Cinema,
Inc.]{.underline}, 871 F. Supp. 35, 36 & n.4 (D.D.C. 1994) (deferring to
the Department's interpretation of Standard 4.33.3 and holding that this
regulation and its "clustering" exception "afford\[ed\] AMC no warrant
to consign its wheelchair patrons to the back of the Avenue Grand
Theater"). Consistent with the history and purpose of Title III of the
ADA, these courts properly concluded that Standard 4.33.3\'s
comparability requirement refers to more than simply "obstructions" and
requires a qualitative comparison of the views of the screen afforded
disabled and ambulatory patrons.

The foregoing cases have been discussed at length in the United States'
summary judgment memorandum and, therefore, will not be re-addressed
herein. However, it bears emphasis that the district court in
[Meineker]{.underline}, like this Court, was asked by the defendant
theater chain to adopt the Fifth Circuit's [Lara II]{.underline}
decision. The [Meineker]{.underline} court recently rejected [Lara
II]{.underline} and expressly held that focusing solely on
"obstructions" would "defy common sense" since such a reading of the
regulation would permit theater operators to place wheelchair seating in
locations which, albeit "unobstructed," nonetheless afforded wheelchair
patrons "truly inferior viewing angles" that amounted to the "absolute
worst seats" at the front of the theater. [See]{.underline}
[Meineker]{.underline}, 216 F. Supp. at 17-18 & n.4.[^5]

> b\. [The Fifth Circuit's Reading of Standard 4.33.3 in Lara II Is
> Seriously Flawed]{.underline}

The Fifth Circuit's [Lara II]{.underline} decision, on the other hand,
is legally and factually suspect due to its erroneous focus on
"obstructions." By ignoring the Standard 4.33.3\'s plain language,
imposing an improper and overly narrow construction on the phrase "lines
of sight," and misconstruing the Access Board's 1999 notice of proposed
rulemaking to amend the 1991 ADAAG, [Lara II]{.underline} undermines
both the letter and the spirit of Standard 4.33.3 and Title III of the
ADA. The [Lara II]{.underline} decision, therefore, warrants no
deference from this Court. [See]{.underline} [Gunther v. Washington
County]{.underline}, 623 F.2d 1303, 1319-20 (9th Cir. 1979) ("Although
we look to the reasoning of other circuits and district courts for
guidance, we are bound only by decisions rendered in this circuit."),
[aff'd]{.underline}, 452 U.S. 161, 101 S. Ct. 2242 (1981); [Allstate
Ins. Co. v. Stevens]{.underline}, 445 F.2d 845, 846 (9th Cir. 1971)
(same).

At issue in [Lara II]{.underline} was whether Cinemark violated the ADA
by placing the wheelchair seating locations at its Tinseltown
stadium-style theater complex outside the stadium section, on the
sloped-floor portion of the theaters closest to the screen. In [Lara
I]{.underline}, the district court held that the Tinseltown theaters
violated Standard 4.33.3\'s comparable-lines-of-sight requirement
because they did not offer physically disabled patrons comparable lines
of sight to the screen, in large part due to excessive vertical viewing
angles that caused these theaters to be "Headache City" for disabled
patrons. [See]{.underline} US SJ Mem. at 16-17, 21. The Fifth Circuit
reversed, holding that "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." 207
F.3d at 789. The Fifth Circuit's reasoning defies common sense, the
language of the regulation, and the regulatory history of Standard
4.33.3.

As an initial matter, the Fifth Circuit's interpretation in [Lara
II]{.underline} of Standard 4.33.3\'s comparability requirement finds no
support in the language of the regulation. Under the Fifth Circuit's
reasoning, a wheelchair space placed anywhere in the theater, no matter
how close or far from the screen, would comply with the
comparable-lines-of-sight requirement so long as the patron in the
wheelchair could somehow see the screen without obstruction. The
regulation, however, requires that lines of sight be "comparable," not
just unobstructed.

Second, the Fifth Circuit was also mistaken in suggesting that the
phrase "lines of sight" had traditionally been understood to mean only
an "unobstructed" view. [See]{.underline} [Lara]{.underline}, 207 F.3d
at 788-789. As discussed in the United States' summary judgment
memorandum, US Mem at 14-20, the term "lines of sight" in the context of
theater design is a well-established term of art that encompasses
factors affecting the nature and quality of the viewing experience --
including visual obstructions, viewing angles, and distances from the
screen. Yet rather than focusing on these relevant industry sources, the
Fifth Circuit instead relied on three inapposite federal regulations
concerning communications antennae, snowmobiles, and boating supervision
requirements to conclude that the phrase "lines of sight" in Standard
4.33.3 should be read as encompassing only "obstructions."
[See]{.underline} Lara II, 207 F.3d at 788-89 ([citing]{.underline} 47
C.F.R. § 73.685 (requiring antennae to have a "line-of-sight," without
major obstruction, over the communities they serve); 46 C.F.R. § 13.103
(Coast Guard safety regulation defining "\[d\]irectly supervised" as
"being in the direct line of sight of the person in charge" or in
communication by radio); 36 C.F.R. § 2.18 (National Park Service
regulation prohibiting the operation of a snowmobile by a person under
16 years of age "unless accompanied and supervised within line of sight
by a responsible person 21 years of age or older")). These regulations
cited by [Lara II]{.underline} pertain to topics that have no relevance
to the ADA, wheelchair seating, or movie theaters. More importantly,
none of the regulations deals with the issue of whether lines of sight
are "comparable." The United States does not dispute that persons in
wheelchairs who have unobstructed views will have lines of sight to the
screen. However, those lines of sight will not be comparable if the
viewing angles are inferior to those enjoyed by most other patrons.

Third, the Fifth Circuit's analysis in [Lara II]{.underline} also placed
undue reliance on the fact that neither the Attorney General nor the
Access Board explicitly mentioned viewing angles in 1991 (when Standard
4.33.3 was promulgated pursuant to notice-and-comment rulemaking) or
1994 (when the Department issued the 1994 Supplement to the ADA Title
III Technical Assistance Manual). [Lara II]{.underline}, 207 F.3d at
788. But the absence of such explicit discussion in the early 1990s is
understandable for at least two reasons. As previously discussed, the
Department of Justice reasonably understood, when it promulgated the
regulation and when it later issued the 1994 TAM Supplement, that the
phrase "lines of sight" was a well-recognized term of art in the context
of theater design and that architects and designers would naturally
understand the term as encompassing viewing angles. [See]{.underline} US
SJ Mem. at 14-20. Second, inferior viewing angles for wheelchair users
in movie theaters did not become a prominent problem until after the
first stadium-style theater complex (AMC's Grand 24 in Dallas, Texas)
opened for business in this country in May 1995. Although design experts
have recognized for years that viewing angles effect lines of sight
([Id]{.underline}.), the traditional-style theaters in existence prior
to May 1995 lacked the elevated seating of the stadium-style cinemas and
thus did not have the dramatic disparities in viewing angles that are
commonly found in the majority of AMC's stadium-style theater complexes.
[See]{.underline}, [e.g.]{.underline}, Declaration of Douglas R. Seibert
¶¶ 5-21 & Ex. B (dated April 14, 1993) (declaration filed by AMC in the
[Fiedler]{.underline} litigation regarding its traditional, sloped-floor
theaters at the Union Station Nine theater complex in Washington, D.C.)
(US SJ Opp. App., Ex. 20); [see]{.underline} [also]{.underline} US SJ
Facts ¶¶ 59-73 (summarizing correspondence, newsletters, and policy
statements issued by the National Association of Theater Owners
representing that wheelchair locations in traditional sloped-floor
theaters generally were located in the back of movie theaters, and that
such location had the "best" lines of sight in traditional sloped-floor
theaters).

Lastly, the Fifth Circuit erred in assuming that the Access Board's
post-1991 interpretation of Standard 4.33.3 could limit the authority of
the Department of Justice to construe its own regulation. The Department
of Justice, not the Access Board, has the sole authority to issue
binding regulations to implement the statutory provisions at issue here.
42 U.S.C. § 12186(b). Those regulations must be "consistent with the
minimum guidelines and requirements" issued by the Access Board. 42
U.S.C. § 12186(c). But the Access Board is not required to approve the
Department's standards, and the Board's guidelines do not themselves
have the force of law. They merely set minimum guidelines for the
Attorney General's regulations to follow. As the Board itself has
recognized, the Attorney General is free to issue rules that "exceed the
Board's 'minimum guidelines' and establish standards that provide
greater accessibility." 56 Fed. Reg. 35,408, 35,411 (1991).

Thus, although the Access Board originally drafted the comparable "lines
of sight" language that the Department of Justice adopted in Standard
4.33.3, it is the views of the Department of Justice -- not the Access
Board -- to which the courts owe deference in determining the meaning of
the Department's regulation. [See]{.underline}, [e.g]{.underline}.,
[Paralyzed Veterans]{.underline}, 117 F.3d at 585 (courts must defer to
the Department of Justice, not the Access Board, in interpreting
Standard 4.33.3); [Fiedler]{.underline}, 871 F. Supp. at 36 & n.4
(granting deference to Department's interpretation of Standard 4.33.3\'s
"clustering" exception). As the D.C. Circuit cogently noted in
[Paralyzed Veterans]{.underline} when deferring to the Department of
Justice's interpretation of Standard 4.33.3: "Once the \[Access\]
Board's language was put out by the Department as its own regulation, it
became, as the \[ADA\] contemplates, the Justice Department's and only
the Justice Department's responsibility." 117 F.3d at 585.

At any rate, the Fifth Circuit mistakenly assumed that the Access Board
does not interpret Standard 4.33.3, as currently written, to encompass
viewing angles. [See]{.underline} [Lara II]{.underline}, 207 F.3d at
788-789. In fact, the Access Board has recognized that viewing angles
are relevant in determining whether lines of sight in stadium-style
movie theaters are "comparable" for purposes of Standard 4.33.3. For
example, the Board has explained that

> \[a\]s stadium-style theaters are currently designed, patrons using
> wheelchair spaces are often relegated to a few rows of each
> auditorium, in the traditional sloped floor area near the screen. Due
> to the size and proximity of the screen, as well as other factors
> related to stadium-style design, patrons using wheelchair spaces are
> required to tilt their heads back at *uncomfortable angles* and to
> constantly move their heads from side to side to view the screen. They
> are afforded *inferior lines of sight* to the screen.

64 Fed. Reg. at 62,278 (Nov. 16, 1999) (emphasis added) (US SJ Opp.
App., Ex. 17); [see]{.underline} [also]{.underline} [id]{.underline}. at
62,277 (emphasizing that 1999 NPRM was not altering the longstanding
requirements for comparable lines of sight since the proposal merely
"restate\[d\] the requirement in ADAAG 4.33.3 that individuals seated in
wheelchairs be provided with lines of sight comparable to other
spectators"). The Access Board also has published a technical assistance
manual explaining, in a section titled "Sight Lines," that "\[b\]oth the
horizontal and vertical viewing angles must be considered in the design
of assembly areas. A variety of factors determine the quality of
'vertical' sight lines, such as the distance from the performance area,
row spacing, staggering of seats, and floor slope." ADAAG Manual 117
(July 1998) (US SJ Opp. App., Ex. 18).

It is true, as the Fifth Circuit emphasized in [Lara II]{.underline},
that the Access Board stated in 1999 that it had not decided whether to
amend its guidelines to expressly incorporate certain technical factors
that the Department of Justice had used in some *settlement
negotiations* to assess whether viewing angles were comparable.
[See]{.underline} 64 Fed. Reg. at 62,278 (discussing positions "DOJ has
asserted in attempting to settle particular cases"). But positions
advocated in the give-and-take of particular settlement discussions are
not necessarily identical to the legal requirements that Standard 4.33.3
itself imposes, and thus the Board's comments about the Department's
settlement negotiations has no bearing on the proper interpretation of
the regulation. The Access Board's discussion of the Department's
settlement positions does not detract in any way from the Board's clear
position -- reflected both in its 1999 notice-of-proposed- rulemaking
and its 1998 technical assistance manual -- that viewing angles are
among the factors that determine whether lines of sight are comparable
under the existing guidelines. [See]{.underline} 64 Fed. Reg. at 62,278;
ADAAG Manual at 117.

For these reasons, this Court should reject the flawed analysis in [Lara
II]{.underline} since the Fifth Circuit adopted an interpretation of
Standard 4.33.3 that not only conflicts with the well-established
meaning of the term "lines of sight" in the context of theater design,
[see]{.underline} [supra]{.underline} pp. 12-14, but also thwarts the
statutory goal of providing wheelchair users equal enjoyment of public
accommodations. A wheelchair user who is forced to sit close to the
movie screen and to watch a film at viewing angles that make the screen
appear distorted and cause physical discomfort will not have an equal
opportunity to enjoy the benefits of the theater afforded to most other
patrons who are allowed to sit in elevated, stadium-style seating that
provides both comfortable viewing angles and an enhanced and
distortion-free view of the screen. [See]{.underline} US SJ Mem. at 8-9,
11-13; US App, Vol. I, Exs. 17-22 & Vol. II, Exs. 33-50. Adoption of the
Fifth Circuit's strained interpretation of Standard 4.33.3 would allow
theater owners to restrict wheelchair users to decidedly inferior
seating. This Court should refuse to endorse a reading of Standard
4.33.3 that would so undermine the purposes of Title III of the ADA.
[See]{.underline}, [e.g]{.underline}., [Barden v. City of
Sacramento]{.underline}, 292 F.3d 1073, 1077 (9th Cir. 2002) ("\[T\]he
ADA must be construed 'broadly in order to effectively implement the
ADA's fundamental purpose of 'provid\[ing\] a clear and comprehensive
national mandate for elimination of discrimination against individuals
with disabilities.'") ([quoting]{.underline} [Hason v. Medical Bd. of
Cal.]{.underline}, 279 F.3d 1167, 1172 (9th Cir.), [reh'g]{.underline}
[denied]{.underline}, 294 F.3d 1166 (9th Cir. 2002)); [see]{.underline}
[generally]{.underline} [Tcherepnin v. Knight]{.underline}, 389 U.S.
332, 336, 88 S. Ct. 548, 553 (1967) (reaffirming "familiar canon of
statutory construction that remedial legislation should be construed
broadly to effectuate its purposes").

**B. [Standard 4.33.3 Provides a Sufficiently Precise Comparability
Requirement And,\
Therefore, Is Neither Unconstitutionally Vague Nor Violative of Due
Process]{.underline}**

AMC's claim that Standard 4.33.3\'s comparable-lines-of-sight
requirement is unconstitutionally vague and therefore in violation of
the Due Process Clause of the Fifth Amendment is equally misplaced.
[See]{.underline} AMC SJ Mem. at 9-12. The terms of this regulation are
sufficiently precise to afford AMC (and other movie theater operators)
the ability to steer between lawful and unlawful conduct when designing,
constructing, and/or operating stadium-style theater complexes. Taken
together, the language of Standard 4.33.3, its preamble, and the ADA's
history provide more than ample guidance concerning the meaning of this
regulation.

As an initial matter, it bears emphasis that AMC's "void for vagueness"
argument proves disingenuous in two significant respects. First, AMC's
allegation that Standard 4.33.3\'s comparable-lines-of-sight requirement
is so vague that it fails to provide "fair warning of what the law
requires" cannot be squared with the latter portion of its summary
judgment memorandum in which AMC also claims that the phrase "lines of
sight" has long been understood within the context of accessibility
regulations as referring to "obstructions." [Compare]{.underline},
[e.g]{.underline}., AMC SJ Mem. at 9 [with]{.underline} AMC SJ Mem. at
13-15. While the United States strongly disputes each of these
contentions ([i.e]{.underline}., that the phrase "lines of sight" had a
well-understood regulatory meaning that referred only to
"obstructions"and that Standard 4.33.3 suffers is impermissibly vague),
the point is that AMC cannot have it both ways. Either the language of
Standard 4.33.3 (when read in light of its regulatory and legislative
history) is sufficiently definite to provide regulated parties with
notice of its requirements, or it is not (and thus suffers from
vagueness), but it cannot be both at the same time. Second, AMC's
feigned "confusion" regarding the meaning of Standard 4.33.3\'s
comparability requirement is a phenomenon of relatively recent origin.
When litigating the [Fiedler]{.underline} case in January 1995, AMC
expressed no confusion regarding the meaning or application of Standard
4.33.3\'s comparability requirement to its movie theaters. Indeed, AMC
expressly stated in [Fiedler]{.underline} that, in the context of
Standard 4.33.3, "\[l\]ines of sight for a patron in an auditorium are
measured with reference to the horizontal and vertical angles of view
the eye must encompass in seeing the screen." [See]{.underline}
discussion [supra]{.underline} p. 9; [see]{.underline}
[also]{.underline} US SJ Mem. at 19-20. Given this statement, AMC cannot
now credibly claim to have been "confused" by Standard 4.33.3's
comparable-line-of-sight requirement when AMC itself acknowledged -- at
least prior to this litigation -- that "lines of sight" had a definite
meaning and that meaning encompassed viewing angles.

Turning to the substance of AMC's vagueness argument, federal courts
have long recognized that the Constitution does not demand absolute
precision and that vagueness challenges are evaluate under varying
standards depending on, among other things, the nature of the statute or
regulation at issue. [See]{.underline}, [e.g]{.underline}., [Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc.]{.underline}, 455
U.S. 489, 495 & n.7, 102 S. Ct. 1186, 1191 & n.7 (1982); [Botosan v.
Paul McNally Realty]{.underline}, 216 F.3d 827, 836 (9th Cir. 2000);
[Great American Houseboat Co v. United States]{.underline}, 780 F.2d
741, 746-47 (9th Cir. 1986). Purely economic regulation that does not
threaten to inhibit freedom of speech or other
constitutionally-protected interests, such as Title III of the ADA and
its implementing regulations, are subject to the lowest level of
constitutional scrutiny. [Botosan]{.underline}, 216 F.3d at 836
("Because the ADA is a statute that regulates commercial conduct, it is
reviewed under a less stringent standard of specificity."); [Pinnock v.
International House of Pancakes Franchise]{.underline}, 844 F. Supp.
574, 580 (S.D. Cal. 1993) (holding that, for purposes of vagueness
challenge, Title III and its implementing regulations were subject to
lower standards of specificity). Under this standard, a law is not
impermissibly vague simply because it "'requires a person to conform his
conduct to an imprecise but comprehensible normative standard.'"
[Hoffman Estates]{.underline}, 455 U.S. at 495 n.7
([quoting]{.underline} [Coates v. City of Cincinnati]{.underline}, 402
U.S. 611, 614, 91 S. Ct. 1686, 1688 (1971)). Rather, what due process
will not tolerate from economic regulation is a law that specifies "no
standard of conduct . . . at all." [Hoffman Estates]{.underline}, 402
U.S. at 495 & n.7; [accord]{.underline} [Pinnock]{.underline}, 844 F.
Supp. at 580; [see]{.underline} [also]{.underline} [Boutilier v.
Immigration and Naturalization Serv.]{.underline}, 387 U.S. 118, 121, 87
S. Ct. 1563, 1570 (1967) (holding that to violate due process, a statute
must be "so vague and indefinite as really to be no rule or standard at
all").

Applying this standard to Standard 4.33.3\'s comparable-lines-of-sight
requirement, it is plain that this regulation fits comfortably within
the ambit of constitutional economic regulation. As discussed in the
United States' summary judgment memorandum, the regulatory language is
reasonably understood as requiring a qualitative comparison between the
views of the screen afforded patrons who use wheelchairs with the views
of the screen afforded most other members of the movie audience.
[See]{.underline} US SJ Mem. at 11-12. The meaning of this provision is
further amplified by the fact that the phrase "lines of sight" is a
well-established term of art in the context of theater design that
encompasses factors (including physical obstructions, viewing angles,
and distances from the screen) affecting the nature and quality of the
viewing experience. [Id]{.underline}. at 14-16. Finally, Standard
4.33.3\'s comparability requirement must also be read in the context of
the underlying goals of Title III of the ADA and its implementing
regulations of ensuring the accessibility and usability of movie
theaters and other assembly areas for persons who use wheelchairs and
their moviegoing companions. [Id]{.underline}. at 4-6, 12-13;
[see]{.underline} [also]{.underline} 56 Fed. Reg. 35544, 35571 (July 26,
1991) (DOJ preamble stating that Title III regulation governing assembly
areas was promulgated in recognition of the fact that "\[i\]ndividuals
who use wheelchairs historically have been relegated to inferior
seating" and forced to sit "separate from accompanying family and
friends"); 46 Fed. Reg. 4270, 4270-73 (Jan. 16, 1981) (Access Board
statement in final rulemaking notice emphasizing that Standard 4.33.3\'s
predecessor regulatory guideline regarding assembly areas in federal
buildings should be "liberally construed" to ensure the accessibility
and usability of such facilities) (codified at 36 C.F.R. § 1190.6).

That Standard 4.33.3 does not regulate with "mathematical precision,"
moreover, proves of no constitutional impediment. Given the myriad of
assembly areas to which Standard 4.33.3 applies, the Department of
Justice reasonably and necessarily opted for a flexible regulatory
standard that takes into account the configuration and nature of each
assembly area so long as disabled patrons are provided comparable views
of the screen, stage, or other spectacle being viewed. [See]{.underline}
US SJ Mem. at 11-13 & n.6. Simply put, the issue of regulating
"comparable lines of sight" in assembly areas is not susceptible to a
"one size fits all" approach.

The need for regulatory flexibility is especially important where, as
here, the type of assembly area at issue (stadium-style movie theaters)
did not even come into vogue until years after the promulgation of the
challenged regulation. In addressing vagueness challenges, federal
courts have long recognized the balancing act faced by legislators and
regulators when drafting statutes and regulations -- to make them
precise enough to afford fair notice of the prohibited conduct, yet
broad enough to reach a variety of situations, many of which cannot be
anticipated at the time of drafting. As the Supreme Court stated when
rejecting a vagueness challenge to regulations governing the
transportation of hazardous materials:

> \[F\]ew words possess the precision of mathematical symbols, most
> statutes must deal with untold and unforeseen variations in factual
> situations, and the practical necessities of discharging the business
> of government inevitably limit the specificity with which legislators
> can spell out prohibitions.

[Boyce Motor Lines v. United States]{.underline}, 342 U.S. 337, 340, 72
S. Ct. 329, 330 (1952); [see]{.underline} [also]{.underline} [Grayned v.
City of Rockford]{.underline}, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300
(1972) (affirming constitutionality of anti-noise ordinance that was
"marked by 'flexibility and reasonable breadth, rather than meticulous
specificity'" and noting that "we can never expect mathematical
certainty from our language") (internal citation omitted); [Rock of Ages
Corp. v. Secretary of Labor]{.underline}, 170 F.3d 148, 156 (2nd Cir.
1999) (noting that regulations need not achieve "meticulous specificity"
and holding that due process is satisfied "as long as a reasonable
prudent person, familiar with the conditions the regulations are meant
to address and the objectives the regulations are meant to achieve, has
fair warning of what the regulations require"); [Freeman United Coal
Mining Co. v. Federal Mine Safety & Health Review Comm'n]{.underline},
108 F.3d 358, 362 (D.C. Cir. 1997) (rejecting vagueness challenge to
mine safety regulations in recognition of long-recognized principle that
regulations must be sufficiently flexible to cover an "infinite variety"
of situations and, hence, need not regulate with mathematical
precision); [Doyle v. Secretary of Health & Human Serv.]{.underline},
848 F.2d 296, 301 (1st. Cir. 1988) (affirming constitutionality of
Medicare regulation because "'\[t\]he definition of adequate medial care
cannot be boiled down to a precise mathematical formula'") (internal
citation omitted).[^6]

Taken togther, these considerations weigh strongly against any finding
that Standard 4.33.3\'s comparable-lines-of-sight requirement provides
"no standard at all." The language, history, and purpose of this
provision collectively put AMC (and other regulated entities) on fair
notice that the phrase "comparable lines of sight" should be read as
requiring a qualitative comparison as between the views of the screen
afforded patrons who use wheelchairs and most other members of the movie
audience. This is all that the Constitution requires. [See]{.underline}
[Botosan]{.underline}, 216 F.3d at 836 (rejecting vagueness challenge to
Title III of the ADA and its implementing regulations);
[Pinnock]{.underline}, 844 F. Supp. at 579-84 (same).[^7]

**C. [Lara Does Not Mandate Judgment In Favor of AMC on Its
Stadium-Style Theater Complexes in Texas]{.underline}**

AMC also argues that, in light of the Fifth Circuit's ruling in [Lara
II]{.underline}, summary judgment should be entered with regard to its
twelve stadium-style theater complexes located in the Fifth Circuit
irrespective of whether or not this Court agrees with the [Lara
II]{.underline} decision. [See]{.underline} AMC SJ Mem. at 12. To do
otherwise, AMC asserts, "would subject AMC to inconsistent legal
duties." [Id]{.underline}.

AMC's argument that the shadow of [Lara II]{.underline} should extend
all the way into a California federal court is both factually and
legally mistaken. First, this Court has the authority to reach an
independent decision on the legal issues in this matter regardless of
the Fifth Circuit's decision in [Lara II]{.underline}. [See]{.underline}
discussion [supra]{.underline} p. 10. This is particularly true where,
as here, the issue concerns the United States' interpretation of
national civil rights legislation and its implementing regulations.
[See]{.underline} [Railway Labor Executives' Ass'n v. Interstate
Commerce Comm'n]{.underline}, 784 F.2d 959, 964 (9th Cir. 1986)
("\[C\]ourts do not require an agency of the United States to accept an
adverse determination of the agency's statutory construction by any
Circuit Court of Appeals as binding on the agency for all similar cases
throughout the United States."). Second, AMC faces no risk of
"inconsistent" legal duties from the [Lara II]{.underline} decision
since it was not a party to that litigation and, therefore, is not
"bound" by its rulings. [See]{.underline}, [e.g]{.underline}., [Colby v.
J.C. Penny Co., Inc.]{.underline}, 811 F.2d 1119 (7th Cir. 1987)
(holding that district improperly granted summary judgment to
defendant-employer based on its erroneous belief that ruling in another
Circuit on same legal issue had *stare decisis* effect in that
jurisdiction).[^8] The Fifth Circuit's [Lara II]{.underline} decision
thus stands as no legal impediment to this Court's exercising its own
independent judgment regarding the propriety of the Department's
interpretation of Standard 4.33.3\'s comparability requirement as
applied to all of AMC's over 80 stadium-style movie theater complexes
nationwide.

D. [Standard 4.33.3\'s "Clustering" Exception Does Not Apply to AMC's
Stadium-Style Movie Theaters]{.underline}

As a last-ditch effort to avoid providing its disabled movie patrons and
their moviegoing companions with comparable lines of sight, AMC now
belatedly asserts that its stadium-style theaters need not comply with
Standard 4.33.3\'s comparable-lines-of-sight requirement because these
theaters fall within the "clustering" exception to this regulation.
Standard 4.33.3\'s "clustering" exception, however, is inapplicable to
AMC's stadium-style theaters and does not afford AMC license to relegate
patrons who use wheelchairs to seats with inferior lines of sight.

While Standard 4.33.3 generally mandates that wheelchair locations in
assembly areas be placed in such a way as to ensure that such locations
are "an integral part of any fixed seating plan" (the integration
requirement), provide persons who use wheelchairs "lines of sight
comparable to those for members of the general public" (the
comparability requirement), and are dispersed when the seating capacity
exceeds 300 persons (the dispersal requirement), a regulatory exception
permits "clustering" of wheelchair seating under certain limited
circumstances. The "clustering" exception to Standard 4.33.3 states:

> 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.

[Id]{.underline}. The Department has long interpreted this exception to
Standard 4.33.3 as exceptionally narrow, permitting "clustering" of
wheelchair seating only in bleachers, balconies, and other discrete
portions of assembly areas. [See]{.underline}, [e.g]{.underline}., Ex. A
(Hurley Declaration) at 20-25 (United States' *amicus* brief in
[Fiedler]{.underline} discussing Standard 4.33.3\'s "clustering"
exception). Moreover, Standard 4.33.3\'s "clustering" exception, even
when applicable, **[only]{.underline}** provides an exception to the
regulation's dispersal requirement; this exception does not diminish in
any fashion the regulation's integration and comparability requirements.
To date, both federal courts that have addressed this exception have
concluded, like the Department, that the exception to Standard 4.33.3 is
a narrow one that does not permit a theater operator to avoid providing
comparable lines of sight to disabled patrons. [See]{.underline} [Lara
II]{.underline}, 207 F.3d at 787 n.3 (rejecting Cinemark's attempt to
invoke exception to Standard 4.33.3 and noting that the exception
"permits only the clustering of seats . . . \[i\]t does not permit
Cinemark to avoid section 4.33.3\'s comparable lines of sight
requirement"); [Fiedler]{.underline}, 871 F. Supp. at 38-39 (holding
that Standard 4.33.3\'s "clustering" exception "affords AMC no warrant
to consign its wheelchair patrons to the back of the . . \[t\]heater").

Against this backdrop, AMC's eleventh-hour attempt to avoid providing
comparable lines of sight to persons with physical disabilities by
invoking Standard 4.33.3.'s "clustering" exception falls far short of
the mark. First, the foregoing discussion makes plain that Standard
4.33.3\'s "clustering" exception is simply inapplicable to AMC's
stadium-style theater complexes because each theater is typically housed
on one floor level and has neither bleachers nor balconies.[^9] Second,
and most important, Standard 4.33.3\'s "clustering" exception (even
assuming its applicability) provides AMC with "no warrant to consign its
wheelchair patrons" to seating locations with inferior, non-comparable
lines of sight as AMC has done in the vast majority of its stadium-style
theater complexes. [See]{.underline} [Fiedler]{.underline}, 871 F. Supp.
at 39. Simply put, AMC cannot use the exception to Standard 4.33.3 to
avoid its obligation to provide comparable lines of sight to its patrons
who use wheelchairs.

**CONCLUSION**

For the foregoing reasons, this Court should deny AMC's motion for
\[partial\] summary judgment in its entirety.

DATED: Nov. 1, 2002

Respectfully submitted,

RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN S. GORDON

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

Counsel for Plaintiff

United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of November, 2002, true and
correct copies of **Memorandum of Plaintiff United In Opposition to
AMC's Motion for \[Partial\] Summary Judgment** were served by Federal
Express, postage pre-paid, on the following parties:

Gregory F. Hurley

Kutak Rock LLP

18201 Von Karman

Suite 1100

Irvine, CA 92612-1077

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Gretchen E. Jacobs

[^1]: For the Court's convenience, a compendium of the regulations and
    guidelines forming the historical roots of Standard 4.33.3 is
    provided in Exhibits 9 - 18 of Plaintiff United States' Appendix In
    Opposition to AMC's Motion for \[Partial\] Summary Judgment
    accompanying this memorandum.

[^2]: To the extent AMC's "compliance" argument can be read as
    suggesting that the Department has taken inconsistent positions over
    the years regarding the interpretation and application of Standard
    4.33.3 to stadium-style movie theaters, AMC's claim is meritless.
    Indeed, Magistrate Judge Hillman already reached quite the opposite
    conclusion when limiting AMC's APA-related discovery in this action
    to the administrative record underlying the regulation: "Defendant
    has not shown inconsistent interpretations by plaintiff of § 4.33.3
    with regard to commercial stadium style movie theaters." Minute
    Order Denying Defs.' Mot. to Compel 3 (June 5, 2000) (Docket #134).

[^3]: AMC also cites to a speech given by a DOJ staff attorney (Mr.
    Joseph Russo) at a panel presentation before a Florida ADA workshop
    in March 1997 as further "evidence" that the Department "was unable
    . . . to determine what § 4.33.3 required with respect to stadium
    style auditoriums." AMC SJ Mem. at 11. As with so many other aspects
    of AMC's memorandum, this assertion is both misleading and factually
    mistaken. Review of the transcript for this workshop makes plain
    that, rather than professing ignorance regarding Standard 4.33.3,
    Mr. Russo was instead emphasizing the commonsense principle that he
    \-- as a DOJ staff attorney \-- lacked authority to issue
    authoritative policy statements concerning the application of this
    Standard to stadium-style movie theaters. [See]{.underline} US SJ
    Opp. App., Ex. 23; US SJ Opp. Facts at 6-8; [see]{.underline}
    [also]{.underline} US SJ Affirm. Def. Mem at 7-8.

[^4]: At issue in [Fiedler]{.underline} was AMC's placement of
    wheelchair seating at the back of each theater at the Avenue Grand
    Theater, a theater complex leased by AMC at Union Station in
    Washington, D.C.. [See]{.underline} US SJ Affirm. Def. Mem at 21-23;
    [see]{.underline} [also]{.underline} [Fiedler v. American
    Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35 (D.D.C. 1994).
    Defendant AMC filed a motion for summary judgment contending that
    the ADA was inapplicable to its leased theaters at Union Station,
    that, even if the ADA did apply, that it did not require "dispersed"
    wheelchair seating at the Avenue Grand Theater, and that the ADA did
    not require equivalent treatment of disabled patrons when doing so
    would present a "direct threat" to the health or safety of other
    patrons. [See]{.underline} [Fiedler]{.underline}, 871 F. Supp at
    36-37. With the permission of the court, the United States filed an
    *amicus* brief opposing AMC's motion for summary judgment.
    [Id.]{.underline} In this *amicus* brief, the United States
    contended that AMC's Avenue Grand Theater was indeed subject to the
    ADA; that AMC was required to provide more than one wheelchair
    seating location in theaters with more than 300 seats; and that AMC
    had failed to demonstrate that seating patrons who use wheelchairs
    towards the front of the theater would constitute a "direct threat."
    [Id.]{.underline} at 37-40. The district court denied AMC's motion
    for summary judgment. [See]{.underline} [Fiedler]{.underline}, 871
    F. Supp. at 40.

[^5]: Two district courts have subsequently followed [Lara
    II]{.underline} and held that the phrase "lines of sight" in
    Standard 4.33.3 refers only to "obstructions." [See]{.underline}
    [United States v. Cinemark USA, Inc.]{.underline}, Case No. 1:99
    CV-705 (N. D. Ohio Nov. 19, 2001), [appeal docketed]{.underline},
    No. 02-3100 (6th Cir. Jan. 24, 2002); [Oregon Paralyzed Veterans of
    America v. Regal Cinemas, Inc.]{.underline}, 142 F. Supp. 2d 1293
    (D. Or. 2001), [appeal docketed]{.underline}, No. 01-35554 (9th Cir.
    June 13, 2001); [see]{.underline} [also]{.underline} AMC SJ Mem. at
    8-9 (discussing [Cinemark]{.underline} and [Regal]{.underline}
    decisions). Because the [Cinemark]{.underline} and
    [Regal]{.underline} courts largely adopted the Fifth Circuit's
    reasoning from [Lara II]{.underline}, these district court decisions
    will not be separately addressed in this memorandum. It bears
    noting, however, that AMC's memorandum incorrectly states that the
    Department appeared as *amicus* *curiae* in the [Regal]{.underline}
    action. [Id]{.underline}. at 8. The United States neither appeared
    as an *amicus* in the [Regal]{.underline} district court action, nor
    filed any briefs in that case.

[^6]: None of the vagueness cases cited by AMC in its summary judgment
    memorandum prove to the contrary. [See]{.underline} AMC SJ Mem. at
    9-10. In [Chalmers v. City of Los Angeles]{.underline}, 762 F.2d 753
    (9th Cir. 1985), for example, the court was faced with a vagueness
    challenge to a local vending ordinance. [Id]{.underline}. at 755-56.
    In finding the challenged ordinance violated due process, the court
    placed great weight on the fact that city officials had repeatedly
    given the plaintiff-appellant conflicting advice regarding the
    proper interpretation of an ordinance with "obvious ambiguity." Id.
    at 757-58. Here, by contrast, Standard 4.33.3 is neither marred by
    ambiguity nor has the Department issued conflicting guidance
    concerning the interpretation and application of this regulation to
    stadium-style movie theaters. [See]{.underline} discussion
    [supra]{.underline} pp. 5-9, 19-20. Similarly, AMC's citation to
    [Georgia Pacific Corp. v. O.S.H.R.C.]{.underline}, 25 F.3d 999 (11th
    Cir. 1994) is inapposite because the due process challenge in that
    case concerned safety regulations imposing civil penalties, a type
    of regulation that is subject to a higher level of scrutiny that
    purely commercial or economic regulation such as Standard 4.33.3.
    [See]{.underline} 25 F.3d at 1005-06; [see]{.underline}
    [also]{.underline} discussion [supra]{.underline} pp. 18-19.

[^7]: In a last-ditch effort to salvage its due process claim, AMC
    devotes one sentence in the body of its summary judgment memorandum
    arguing that "\[a\]t most, the Department's 1998 expansion of §
    4.33.3 is entitled to prospective application only." AMC SJ Mem. at
    11. AMC's half-hearted retroactivity argument is meritless. First,
    this retroactivity argument necessarily rests on the assumption that
    the Department's purported "1998 expansion" constituted final agency
    action with all the attendant procedural requirements set forth in
    the Administrative Procedures Act (5 U.S.C. § 551 [et]{.underline}.
    [seq]{.underline}.) Yet this Court has already conclusively held
    that neither the Department's [Lara]{.underline} *amicus* brief
    filed in 1998, nor any other statements or guidance issued by the
    Department since the promulgation of Standard 4.33.3 in 1991
    pursuant to notice-and-comment rulemaking, constituted "final agency
    action." [See]{.underline} US SJ Affirm. Def. Mem at 8-9. Second, in
    any event, AMC cannot credibly claim that it needed to read the
    Department's Lara *amicus* brief in order to realize the inferiority
    of the wheelchair seating locations in its stadium-style theaters.
    That the openings of AMC's stadium-style theater complexes were met
    with a storm of protest by disabled patrons, local building
    officials, and even some AMC officials, stands as powerful testament
    that AMC was well aware of the problems with these theaters from the
    very beginning of the stadium-style theater revolution in 1995.
    [See]{.underline} discussion [supra]{.underline} pp. 8-9. Moreover,
    when the Department of Justice launched its investigation of AMC's
    stadium-style theaters in November 1996, AMC was expressly informed
    that it was potentially in violation of the ADA for failing to place
    wheelchair seating in the stadium section of its stadium-style movie
    theaters. [See]{.underline} US SJ Opp. App., Ex. 26.

[^8]: Ironically, AMC cites [Colby]{.underline} as the primary "support"
    for its novel theory that a decision issued by the Fifth Circuit is
    "controlling" in this action, at least with respect to its
    stadium-style theater complexes located in that jurisdiction. AMC SJ
    Mem. at 12. [Colby]{.underline}, however, provides no such support.
    Indeed, a careful reading of [Colby]{.underline} reveals that this
    case instead stands for the more well-established principle that
    federal courts are not generally bound by the decisions of their
    sister circuits. As [Colby]{.underline} noted: "\[N\]either this
    court nor the district courts of this circuit give the decisions of
    other courts of appeals \[sic\] automatic deference; we recognize
    that, within reason, the parties to cases before us are entitled to
    our independent judgment." 811 F.2d at 1123. Moreover, while
    [Colby]{.underline} does acknowledge that some measure of deference
    (as opposed to automatic deference) may be appropriate in situations
    in which different outcomes would place a defendant under
    potentially inconsistent legal duties, the court emphasized that
    such cases arise only when "cases in different circuits challenge
    the *same* practice of the *same* defendant." [Id]{.underline}. at
    1124 (emphasis added). As noted above, however, AMC was not a party
    to the [Lara]{.underline} litigation and thus can hardly be said to
    be facing inconsistent legal duties should this Court decline to
    follow the Fifth Circuits's [Lara II]{.underline} decision.

[^9]: AMC's Pleasure Island 24 theater complex in Lake Buena Vista,
    Florida proves the singular exception to this general rule. In this
    complex, Auditorium Nos. 1 & 2, which each collectively seat over
    550 movie patrons, contain balconies. Notably, however, both of
    these auditoria also provide dispersed wheelchair seating in their
    respective lower-level and upper-level balcony sections.
    [See]{.underline} US SJ Opp. App., Ex. 28 (AMC Pleasure Island 24
    seating plan).