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

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 IN SUPPORT OF PLAINTIFF

) UNITED STATES' MOTION FOR PARTIAL

) SUMMARY JUDGMENT RE: LINE

v\. ) OF SIGHT ISSUES

)

)

)

) 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

**LEGAL AND REGULATORY BACKGROUND** 2

**STATEMENT OF FACTS** 3

**ARGUMENT** 10

I. [Partial Summary Judgment Is Appropriate Under Rule 56(d) Regarding
the\
Department's Interpretation of Standard 4.33.3\'s Comparability and
Integration\
Requirements]{.underline} 10

II\. [The Department Has Reasonably Interpreted Standard 4.33.3\'s
"Comparable Lines\
of Sight" Requirement And This Interpretation Is Entitled to Substantial
Deference]{.underline} 11

> **A. *The Department's Interpretation of Standard 4.33.3\'s
> Comparability\
> Requirement*** 11
>
> **B. *"Lines of Sight" Is A Well-Established Term of Art in the
> Context\
> of Theater Design That Encompasses Several Factors, Including\
> Viewing Angles*** 14
>
> **C. *Both the Movie Theater Industry and AMC Admit That Standard
> 4.33.3\'s Comparability Requirement Includes Viewing Angles*** 17
>
> **D. *The Most Recent Court Decision Addressing Standard 4.33.3 In
> the\
> Context of Stadium-style Movie Theaters Supports the Department's\
> Interpretation that "Lines of Sight" Include Viewing Angles and that\
> This Regulation Requires A Qualitative Comparison of the Viewing\
> Experience of Disabled Patrons and Other Members of the General\
> Public*** 20

II\. [The Department Has Reasonably Interpreted Standard 4.33.3\'s
Integration\
Requirement To Mandate that Wheelchair Locations Be Placed Among
Fixed]{.underline}\
[Seating Used By Other Members of The General Public]{.underline} 23

**CONCLUSION** 25

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

> *Anderson v. Liberty Lobby, Inc.*,
>
> 477 U.S. 242, 106 S. Ct. 2505 (1986) 10
>
> *Auer v. Robbins*,
>
> 519 U.S. 452, 117 S. Ct. 905 (1997) 13
>
> *Barden v. City of Sacramento*,
>
> 292 F.3d 1073 (9th Cir. 2002) 13, 14
>
> *Botosan v. Paul McNally Realty*,
>
> 216 F.3d 827 (9th Cir. 2000) 13
>
> *Bowles v. Seminole Rock & Sand Co.*,
>
> 325 U.S. 410 (1945) 13
>
> *Bragdon v. Abbott*,
>
> 524 U.S. 624, 118 S. Ct. 2196 (1998) 13
>
> *Celotex Corp. v. Catrett*,
>
> 477 U.S. 317, 106 S. Ct. 2548 (1986) 10
>
> *Department of Health & Human Services v. Chater*,
>
> 163 F.3d 1129 (9th Cir. 1998) 13
>
> *Fairbank v. Wunderman Cato Johnson*,
>
> 212 F.3d 528 (9th Cir. 2000) 10
>
> *Fiedler v. American Multi-Cinema, Inc.*,
>
> 871 F. Supp. 25 (D.D.C. 1994) 19
>
> *Fiedler v. American Multi-Cinema, Inc.*,
>
> 871 F. Supp. 35 (D.D.C. 1994) 14, 19,
>
> 20
>
> *Independent Living Res. v. Oregon Arena Corp.*,
>
> 982 F. Supp. 698 (D. Or. 1997) 16
>
> *Johnson v. Gambrinus Co./Spoetzl Brewery*,
>
> 116 F.3d 1052 (5th Cir. 1997) 14
>
> *Klem v. County of Santa Clara*,
>
> 208 F.3d 1085 (9th Cir. 2000) 13
>
> *Lara v. Cinemark, U.S.A., Inc.,*
>
> 207 F.3d at 788-89 20, 21
>
> *Meineker v. Hoyts Cinemas Corp.*,
>
> 216 F. Supp. 2d 14 (N.D.N.Y. 2002) 20, 22,
>
> 23
>
> *Morissette v. United States*,
>
> 342 U.S. 246, 72 S. Ct. 240 (1952) 14
>
> *Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc.*,
>
> 142 F. Supp. 2d 1293 (D. Or. 2001) 20, 21
>
> *PGA Tour, Inc. v. Martin*,
>
> 532 U.S. 661, 121 S. Ct. 1879 (2001) 3
>
> *Paralyzed Veterans of America v. D.C. Arena, L.P.*,
>
> 117 F.3d 579 (D.C. Cir. 1997) 13
>
> *Thomas Jefferson University v. Shalala*,
>
> 512 U.S. 504, 114 S. Ct. 2381 (1994) 13

**DOCKETED CASES**

> *Lara v. Cinemark, U.S.A.*,
>
> C.A. No. EP-97-CA-502-H, 1998 WL 1048497 (W.D. Tex. Aug. 21, 1998) 16,
> 20
>
> *United States v. Cinemark USA, Inc.*,
>
> Case No. 1:99 CV-705 (N. D. Ohio Nov. 19, 2001) 20

**STATUTES**

> 42 U.S.C. § 12101(a)-(b) 3
>
> 42 U.S.C. § 12101(b)(1) 4
>
> 42 U.S.C. § 12182(a) 12
>
> 42 U.S.C. § 12183(a)(1) 4, 5, 13
>
> 42 U.S.C. § 12183(a)(2) 4
>
> 42 U.S.C. §§ 12186(b) 5, 13
>
> 42 U.S.C. § 12186(c) 5
>
> 56 Fed. Reg. 35,544 (July 26, 1991) 6, 23
>
> 56 Fed. Reg. 35,546 (July 26, 1991) 6
>
> 28 C.F.R. § 26.203 6
>
> 28 C.F.R. §§ 36.101 5
>
> 28 C.F.R. Pt. 36, App A, § 4.33.3 *passim*
>
> 29 U.S.C. § 792 5
>
> 42 U.S.C. § 12101. 1
>
> Americans With Disabilities Act Accessibility Guidelines for Buildings
> and
>
> Facilities, 56 Fed. Reg. 35,408 (1991) 5
>
> Fed. R. Civ. P. 56(c) 10, 24
>
> Rehabilitation Act of 1973, Pub. L. No, 93-112, § 502 (1973) 5
>
> S. Rep. No. 116, 101st Cong., 1st Sess. 10-11 (1989) 4
>
> Title III of the ADA, 42 U.S.C. §§ 12181-12189 *passim*

**MISCELLANEOUS**

> C. G. Ramsey and H.R. Sleeper, "Theater Design Criteria,"
> [Architectural Graphics Standards]{.underline} (Peter H. Frink 8th
> ed., 1988) 15
>
> Ernst Neufert, [Architect's Data]{.underline} (2nd Intl. ed. 1980) 15
>
> George C. Izenour, [Theater Design]{.underline} (1977) 15
>
> Harold Burris-Meyer & Edward C. Cole, [Theaters and
> Auditoriums]{.underline} (2d ed. 1964) 15
>
> John Scott Russell, "Treatise on Sightlines and Seating,"
>
> [Edinburgh New Philosophical Journal]{.underline}, Vol. 27 (1838) 15
>
> [Webster\'s New Universal Unabridged Dictionary]{.underline} (2d ed.
> 1979) 11
>
> [Webster\'s Ninth New Collegiate Dictionary]{.underline} (1991) 11

**INTRODUCTION**

In 1995, defendants AMC Entertainment, Inc. and American Multi-Cinema,
Inc. \[hereinafter collectively referred to as "AMC"\] introduced a new
product to the American movie- going public \-- so-called
"stadium-style" seating \-- whereby the majority of the rows of seats in
a theater were placed on a succession of elevated risers as in many
sports arenas or stadiums. Since that time, AMC has constructed and now
operates over 80 theater complexes nationwide with stadium-style
seating. By any measure, the enhanced lines of sight and viewing
experience provided by these stadium-style theaters has proven to be a
resounding success with ambulatory movie patrons and new construction of
stadium-style theaters has completely taken over the industry. Indeed,
almost no "traditional" theaters have been built since AMC began the
stadium-style construction boom in 1995.

Unfortunately, in the vast majority of AMC's stadium-style theaters,
patrons who use wheelchairs are not provided seating in the stadium
section, but, rather, are consigned to seating in the "traditional"
sloped-floor portion of the theaters that is both directly in front of
the wall-to-wall screen and physically separate from the stadium-style
section. The non-stadium portions of AMC's stadium-style theaters - with
inferior sight lines and seats located uncomfortably close to the large
screen - simply do not provide comparable, let alone popular or usable,
seating. Disabled patrons (and their moviegoing companions) have filed a
torrent of complaints with both AMC and the Department of Justice about
the inferiority of the viewing experience afforded by these
non-comparable wheelchair locations. Such complainants describe not only
the physical discomfort engendered by these seats (including neck pain,
eye strain, headaches, blurriness, and overly large or grainy screen
images), but also their collective feelings of isolation, embarrassment,
and anger at being denied access to the stadium-style seating section
where the overwhelming majority of ambulatory patrons routinely sit.

In 1999, the United States filed this enforcement action under the
Americans With Disabilities Act (42 U.S.C. § 12101 [et]{.underline}
[seq]{.underline}.) ("ADA") to rectify these and other significant
accessibility problems at AMC's stadium-style theater complexes across
the country. Of particular relevance to the instant motion for partial
summary judgment is Standard 4.33.3 of the Department of Justice's
regulations implementing Title III of the ADA which mandates that, in
public assembly areas such as AMC's movie theaters, "\[w\]heelchair
areas shall be an integral part of any fixed seating plan . . . and
shall provide people with physical disabilities . . . lines of sight
comparable to those for members of the general public." 28 C.F.R. Pt.
36, App. A § 4.33.3 (1994). The United States herein moves for partial
summary judgment pursuant to Rules 56(c) and (d) of the Federal Rules of
Civil Procedure and seeks an order from this Court affirming the
reasonableness of the Department's interpretation of Standard 4.33.3\'s
comparable-line-of-sight and integration requirements as applied to
AMC's stadium-style movie theaters.

First, consistent with both the regulatory language and purposes
underlying the ADA and its implementing regulations, the United States
has reasonably interpreted Standard 4.33.3\'s comparable-line-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. Under well-established administrative law principles, the
Department's interpretation of its own ADA regulations is entitled to
substantial deference.

The Department, moreover, did not regulate on a blank slate when
promulgating Standard 4.33.3 In the context of theater design, the
phrase "lines of sight" 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. Furthermore, both the movie theater industry generally,
and AMC in particular, have long agreed (at least until litigation
commenced regarding stadium-style theaters in the late 1990s), that
views of the screen can be qualitatively compared and that the
regulation, the phrase "lines of sight" encompasses several factors
including viewing angles. Perhaps most damning, however, is AMC's own
admission in January 1995 \-- nearly five months ***prior*** to the
opening of its first stadium-style theater complex \-- that Standard
4.33.3 should be interpreted such that "\[l\]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."
Given this admission, AMC cannot now credibly claim that the
Department's reading of Standard 4.33.3's comparable-line-of-sight
requirement is unreasonable or contrary to the language of the
regulation when AMC itself believed -- at least prior to this litigation
-- that "lines of sight" included viewing angles.

Second, turning to Standard 4.33.3\'s integration requirement, the
Department reasonably interprets this provision as requiring theater
operators to provide seating for physically disabled patrons that is
among the seats where a majority of the other patrons routinely sit
during movies. In AMC's stadium-style movie theaters, the overwhelming
majority of patrons can, and do, sit in the stadium sections. When
wheelchair locations are placed only in the non-stadium section of the
theater, the result is segregation and isolation of persons who use
wheelchairs and their moviegoing companions who choose to sit with them.
Given that Title III of the ADA and its implementing regulations were
enacted to combat this very form of segregation and inequality, the
Department's interpretation of the regulation's integration requirement
fully comports with both the regulatory language and the ADA's
anti-discrimination mandate. The Department's reading of Standard
4.33.3\'s integration requirement should, therefore, be afforded
substantial deference.

Third, applying Standard 4.33.3\'s integration requirement to AMC's
stadium-style movie theaters, it is plain that AMC has violated the ADA
by virtue of its pattern and practice of placing wheelchair locations
outside the stadium-style section in its small and mid-sized
stadium-style theaters with seating capacities under 300 patrons. Both
statistical and anecdotal evidence underscore the undisputed fact that
AMC movie theater patrons overwhelmingly prefer seats in the
stadium-style section to seats outside the stadium section where the
majority of wheelchair spaces are located. Indeed, AMC has admitted that
seats on the sloped-floor portion of its stadium-style theaters are "the
last to fill up everytime." This Court should thus enter an order
holding that AMC has violated Standard 4.33.3\'s integration requirement
by virtue of its pattern and practice of placing wheelchair locations in
the worst locations in the theater outside the stadium-style section of
its stadium-style theaters with seating capacities under 300 patrons.

**LEGAL AND REGULATORY BACKGROUND**

Congress enacted the ADA in 1990 to remedy pervasive and continuous
discrimination against persons with disabilities. [See]{.underline} 42
U.S.C. § 12101(a)-(b); [see]{.underline} [generally]{.underline} [PGA
Tour, Inc. v. Martin]{.underline}, 532 U.S. 661, 674-77, 121 S. Ct.
1879, 1889-90 (2001). One of the ADA's primary purposes is, therefore,
"to provide a clear and comprehensive mandate for the elimination of
discrimination against individuals with disabilities\[.\]" 42 U.S.C. §
12101(b)(1).

During the congressional hearings preceding the passage of the ADA,
reports, surveys and testimony offered from numerous witnesses made
plain that "an overwhelming majority of individuals with disabilities
lead isolated lives and do not frequent places of public accommodation."
S. Rep. No. 116, 101st Cong., 1st Sess. 10-11 (1989). For example,
testimony by the National Council on Disability summarized a then-recent
national poll:

> The survey results dealing with social life and leisure experiences
> paint a sobering picture of an isolated and secluded population of
> individuals with disabilities. *The large majority of people with
> disabilities do not go to movies, do not go to the theater, do not go
> to see musical performances, and do not go to sports events.* A
> substantial minority of persons with disabilities never go to a
> restaurant, never go to a grocery store, and never go to a church or
> synagogue \* \* \* The extent of non-participation of individuals with
> disabilities in social and recreational activities is alarming.

[Id]{.underline}. (Emphasis added.)

To address these problems, Title III of the ADA expressly prohibits
disability-based discrimination by public accommodations and commercial
facilities. [See]{.underline} 42 U.S.C. §§ 12181-12189. Of particular
relevance to this action, Title III mandates that so-called \"newly
constructed\" public accommodations ([i.e]{.underline}. - covered
facilities designed or constructed for first occupancy after January 26,
1993) be \"readily accessible to and usable by\" persons with
disabilities. [See]{.underline} 42 U.S.C. § 12183(a)(1)("Section 303\");
[see]{.underline} [also]{.underline} [id]{.underline}. at § 12182(a)
("Section 302\") (forbidding disability-based discrimination \"in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation\").[^1] Movie theaters \-- such as the stadium-style
theaters owned or operated by the AMC defendants \-- are expressly
encompassed within Title III\'s non-discrimination mandate.
[Id]{.underline}. at § 12181(7)(C) (defining the term \"public
accommodation\" to include \"a motion picture house, theater, concert
hall, stadium, or other place of exhibition or entertainment\").

Congress granted primary enforcement authority for Title III of the ADA
to the United States Department of Justice \[hereinafter \"Department\"
or \"DOJ\"\], including the responsibility for promulgating regulations,
issuing technical assistance materials, and filing lawsuits in federal
court to enforce compliance with the statute and accompanying
regulations. 42 U.S.C. §§ 12186(b), 12206, 12188(b). Section 303(a) of
the ADA specifies that the Department's Title III-based regulations
shall include, or incorporate by reference, architectural accessibility
standards. [Id]{.underline}. at § 12183(a). The ADA, however, affords
the Department of Justice considerable deference when promulgating these
architectural standards. The ADA states that such standards shall meet
or exceed those developed by another federal agency, the Architectural
and Transportation Barriers Compliance Board (commonly referred to as
the "Access Board"). [See]{.underline} 42 U.S.C. § 12186(c) (regulations
issued by the Department of Justice must be "consistent with the minimum
guidelines and requirements issued by" the Access Board);
[see]{.underline} [also]{.underline} [id]{.underline}. at §§ 12186(b),
12204.[^2] The Department has authority to issue regulations that
"exceed the \[Access\] Board's 'minimum guidelines' and establish
standards that provide greater accessibility." 56 Fed. Reg. 35,408,
35,411 (1991).

In 1991, pursuant to Congress' delegated regulatory authority, the
Department issued final regulations - after notice-and-comment
rulemaking - to govern new construction of, and alterations to, Title
III-covered facilities. [See]{.underline} 28 C.F.R. §§ 36.101 - 36.608 &
App. A; [see]{.underline} [also]{.underline} 56 Fed. Reg. 35,546 (July
26, 1991). Of particular relevance to the instant motion are two
regulatory provisions governing newly constructed or altered public
accommodations. Section 36.308, which bears the heading "Seating in
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." 56 Fed. Reg. 35544, 35571 (July 26, 1991);
[see]{.underline} [also]{.underline} 28 C.F.R. § 26.203 (public
accommodations shall afford goods, services, and accommodations "in the
most integrated setting"). To this end, § 36.308 mandates that newly
constructed or altered assembly areas "shall be" fully compliant with
the standards set forth in the Department of Justice's Standards for
Accessible Design, codified as Appendix A to Part 36 of the Code of
Federal Regulations \[hereinafter "Standards"\].

While the Department's Standards set forth comprehensive accessibility
requirements for various types and aspects of public accommodations and
commercial facilities, the provision that forms the crux of this motion
is Standard 4.33.3 \-- the regulation governing the placement and
location of wheelchair and companion seats in public assembly areas such
as movie theaters. Standard 4.33.3 provides, in pertinent part, that

> \[*w\]heelchair areas shall be an integral part of any fixed seating
> plan and shall be provided so as to provide people with physical
> disabilities a choice of admission prices and lines of sight
> comparable to those for members of the general public.* They shall
> adjoin an accessible route that also serves as a means of egress in
> case of emergency. At least one companion fixed seat shall be provided
> next to each wheelchair seating area. When the seating capacity
> exceeds 300, wheelchair spaces shall be provided in more than one
> location.

28 C.F.R. Pt. 36, App. A § 4.33.3 (1994) (emphasis added)\[hereinafter
\"Standard 4.33.3\"\]. Standard 4.33.3\'s comparability and integration
mandates serve as the basis for the United States' instant motion for
partial summary judgment.

**STATEMENT OF FACTS**

In 1995, AMC opened a 24-screen theater complex in Dallas, Texas called
the Grand 24. [See]{.underline} United States\' Statement of
Uncontroverted Facts and Conclusions of Law ¶ 3 (served Oct. 25, 2002)
\[hereinafter \"US SJ Facts\"\]. The Grand 24 employed a new type of
theater design whereby, rather than placing rows of seats on a gradually
sloping floor as in most "traditional" movie theaters, all but a few
rows of seats at the front of each theater nearest the screen were
placed on a series of seating platforms or risers (typically 18 inches
in height) to elevate the seats off of the floor. U.S. Facts ¶ 4. Access
to these seats on risers was accomplished by climbing stairs, rather
than walking up or down sloped aisles. [Id]{.underline}. ¶¶ 5-6. This
seating configuration on successive tiers of elevated risers is
generally referred to in the movie theater industry as \"stadium-style
seating\" or \"stadium seating.\" [Id]{.underline}. ¶ 7. At the Grand
24, all but the four largest theaters (with seating capacities over 300
patrons) locate wheelchair and companion seating in the rows on the
sloped floor portion of the theater nearest the screen, rather than in
the more desirable and heavily-promoted stadium-style seating section.
[Id]{.underline}. ¶ 19.

AMC\'s opening of the Grand 24 was followed immediately by the opening
of several other AMC stadium-style theater complexes, including the
Promenade 16 in Woodland Hills, California and the Norwalk 20 in
Norwalk, California. [Id]{.underline}. ¶ 10. The majority of theaters at
the Promenade 16 and the Norwalk 20 theater complexes employed the same
type of stadium-style theater design whereby wheelchair and companion
seating was located in the first few rows of the theater low and close
to the screen, rather than in the elevated stadium-style seating.
[Id]{.underline}. ¶¶ 20-22.

Indeed, the Grand\'s stadium-style seating concept has proven so popular
with theater patrons and so profitable, that not only have all but one
of AMC's 83 theater complexes constructed or altered since May 1995
incorporated stadium-style seating, but AMC also is closing many of its
complexes with only "traditional" sloped-floor theaters.
[Id]{.underline}. ¶¶ 8, 13-18. In press releases, advertisements, and
other publicity, AMC touts its stadium-style theaters as providing
enhanced and elevated lines of sight that "change\[\] the way . . .
moviegoers experience the movies," provide "unobstructed viewing," and
create the feeling of being "suspend\[ed\] . . . in front of the
wall-to-wall screen." [Id]{.underline}. ¶ 11. AMC concedes that the
whole point of its stadium-style theaters is to provide patrons with
enhanced, unobstructed lines of sight to the screen. [Id]{.underline}.
¶¶ 12.

Thus, by any measure, AMC's stadium-style theaters have proven to be a
resounding success with its ambulatory patrons. Yet patrons who use
wheelchairs (or who have other mobility impairments) cannot climb stairs
and are, therefore, unable to enjoy the enhanced sight lines provided by
these theaters. [Id]{.underline}. ¶¶ 28-29, 32-34. Instead, in the vast
majority of AMC's stadium-style theaters, patrons who use wheelchairs
are consigned to seating in the "traditional" sloped-floor portion of
the theater that is both directly in front of the wall-to-wall screen
and physically separate from the stadium-style section.
[Id]{.underline}. ¶¶ 4-5, 19-24; see also US SJ App., Vol. 3, Ex. 114
(CD-Rom disk of computer models of six auditoriums at AMC's Promenade 16
and Norwalk 20 theater complexes).[^3] Specifically, of the 1,714
auditoria contained in AMC's stadium-style theater complexes, 1,306
auditoria (76.2%) have [no]{.underline} wheelchair seating located in
the stadium section. [Id]{.underline}. ¶¶ 23-24, 26. Moreover, over 17%
of the auditoria in AMC's stadium-style theaters have wheelchair seating
located in the very first row. [Id]{.underline}. at ¶ 27. The
non-stadium portions of AMC's stadium-style theaters - with inferior
sight lines, and seats located uncomfortably close to the large screen -
simply do not provide comparable, let alone popular or usable, seating.
[Id]{.underline}. ¶¶ 28-29, 32-34, 98-106. In the words of one disabled
patron who attended "Amistad" at the AMC Esplanade 14 theater complex in
Phoenix, Arizona and who sat in the fourth row of the non-stadium
portion of the theater (the only wheelchair seating area in that
theater):

> It was very difficult to see, because the\[\] \[screen\] was so close
> that you could not see the whole film. You had to look from side to
> side. It was almost blurry in a way because you were so close. \[¶\]
> After 20, 25 minutes then it became kind of exhausting to keep you
> head and neck up . . . It became kind of painful after a while to keep
> your head up at a 45-degree angle . . . After awhile I was moving my
> neck like this (indicating) and I would have to take a break \[back in
> the lobby\] before I go back up \[to my seat\] and try to watch again.
> It was rather uncomfortable. Being a film fan, I probably wouldn't
> have stayed there. I probably should have left, but I toughed it out
> and watched the film.

Guttierrez Dep. Tr. 42- 43 (July 16, 2002) (U.S. SJ App., Vol. 1, Ex.
18); [see]{.underline} [also]{.underline} [id]{.underline}. at pp.
19-21, 45. Other patrons who use wheelchairs (and their moviegoing
companions) have complained both to AMC and the Department about similar
experiences -- including neck pain, eye strain, headaches, blurriness,
and overly large or grainy screen images -- as a result of sitting in
wheelchair and companion seating located in close proximity to the
screen in the traditional, sloped-floor portion of AMC's stadium-style
theaters. US SJ Facts ¶¶ 28-30, 32-34.

In light of the inferiority of the sight lines in the non-stadium
portion of AMC's stadium-style theaters, it is thus not surprising that
the introduction of these theaters was met with a torrent of protest and
disappointment from disabled patrons, their moviegoing companions, local
building officials, ADA access consultants, and even on occasion, AMC
officials themselves. [Id]{.underline}. ¶¶ 28-34, 38-42, 106. The
following examples serve to illustrate the breadth and nature of the
line-of-sight complaints and concerns communicated to, or expressed by,
AMC personnel:

> • Within six weeks of the opening of the Grand 24 theater complex in
> 1995, AMC officials acknowledged "receiving many complaints about the
> handicap \[sic\] seating." [Id]{.underline}. ¶ 29; [see]{.underline}
> [also]{.underline} [id]{.underline}. at ¶ 30 (Grand complaints).[^4]
> When AMC's in-house architect traveled to the Grand 24 in July 1995 to
> spend a day investigating problems with this new complex, he observed:
> "Presentation overall was excellent when seated in the first rows of
> the \[stadium-style\] risered seating . . . \[¶\] ***rows on the
> sloped floor \[among which the wheelchair seating is located\] are the
> last to fill up, everytime***." ([Id]{.underline}. ¶ 31) (emphasis
> added.)
>
> • In November 1996, an AMC official responsible for overseeing AMC's
> ADA compliance in the Southeast Region expressed his exasperation
> after sitting through two days of hearings before the Florida Board of
> Building Codes and Standards concerning AMC's accessibility waiver
> requests: "All Florida projects need some accessible seating in the
> stadium area. The '300 seat' rule AMC has been using is irrelevant
> because we do not offer 'comparable lines of sight.' . . . \[¶\]
> ***The accessible seating that we currently offer in stadium houses is
> an insult to the disabled. How often do you sit in the first, or even
> fourth row?*** . . . \[¶\] AMC may be very vulnerable to lawsuits at
> the stadium houses we have in Florida . . . \[¶\] I would prefer to
> not attend any more Florida waiver hearings." ([Id]{.underline}. ¶ 42)
> (Emphasis added.)

Yet despite these concerns, AMC persisted in building stadium-style
theater complexes nationwide which, in all but a small percentage of its
auditoriums ([i.e]{.underline}. - theaters with seating capacities over
300 patrons), relegate patrons who use wheelchairs to seating on the
sloped-floor (non-stadium) sections closest to the screen which provide
non-comparable lines of sight. [Id]{.underline}. ¶¶ 23, 26.

In January 1999, the United States commenced this action against AMC
alleging that it had engaged in a pattern or practice of violating Title
III of the ADA, 42 U.S.C. §§ 12181-12189, in the design, construction,
and operation of movie theaters with stadium-style seating across the
country. [See]{.underline} Compl. for Declaratory & Inj. Relief,
Compensatory Damages, & Civil Penalties (filed Jan. 29, 1999)(Docket \#
1)(\"Complaint\"). Although this Complaint alleges numerous ADA
violations, one of several important issues concerns the United States\'
allegation that AMC has failed to provide patrons who use wheelchairs
(and their companions) with seats that are \"an integral part of any
fixed seating plan and . . . \[that provide\] lines of sight comparable
to those for members of the general public.\" Standard 4.33.3
[See]{.underline}, [e.g]{.underline}., Complaint ¶ 3.

**ARGUMENT**

**I. [Partial Summary Judgment Is Appropriate Under Rule 56(d) Regarding
the Department's Interpretation of Standard 4.33.3\'s Comparability and
Integration Requirements]{.underline}**

Summary judgment should be granted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact" and "the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); [Celotex Corp. v. Catrett]{.underline},
477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); [Anderson v. Liberty
Lobby, Inc.]{.underline}, 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509
(1986); [Fairbank v. Wunderman Cato Johnson]{.underline}, 212 F.3d 528,
531 (9th Cir. 2000). Here, while the parties dispute many aspects of
this case, they do [not]{.underline} dispute that there exists a narrow
legal issue appropriate for summary judgment regarding the propriety of
the Department's interpretation of Standard 4.33.3\'s requirement that
"\[w\]heelchair areas shall be an integral part of any fixed seating
plan . . . and shall provide people with physical disabilities . . .
lines of sight comparable to those for members of the general public."
[See]{.underline} Mem. of Points and Authorities In Support of AMC's
Motion for Summary Judgment 6 (filed Sept. 25, 2002) (Docket \# 347). In
other words, the United States believes that there are no disputed
issues of material fact precluding summary adjudication on the legal
issues of: (i) whether the Department has reasonably interpreted
Standard 4.33.3\'s comparability mandate, and (ii) whether the
Department has reasonably interpreted Standard 4.33.3\'s integration
mandate in the context of stadium-style movie theaters. In addition, the
United States believes that there are no disputed issues of material
fact precluding summary judgment on the *application* of Standard's
4.33.3\'s integration requirement to AMC's stadium-style movie theaters
at issue in this litigation.[^5] This matter is thus also ripe for
summary judgment.

**II. [The Department Has Reasonably Interpreted Standard 4.33.3\'s
"Comparable Lines of\
Sight" Requirement And This Interpretation Is Entitled to Substantial
Deference]{.underline}**

> **A. *The Department's Interpretation of Standard 4.33.3*\'s**
> ***Comparability Requirement***

As discussed above, Standard 4.33.3\'s comparability requirement
mandates that wheelchair locations in public assembly areas provide
persons with physical disabilities "lines of sight comparable to those
for members of the general public." The Department of Justice construes
this portion of Standard 4.33.3 to require a theater operator to provide
wheelchair users with a view of a 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. This reading of Standard 4.33.3 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.

The Department's interpretation of Standard 4.33.3's comparability
requirement begins with a commonsense reading of the text of the
regulation. A "line\[\] of sight" is "a line from an observer's eye to a
distant point toward which he is looking." [Webster's Ninth New
Collegiate Dictionary]{.underline} 695 (1991). Thus, in the context of
the regulatory term "lines of sight" is the collection of the lines
extending from the viewer's eye to all the points on the screen where
the film is projected. "Comparable" in this context means "equivalent"
or "similar." [Id]{.underline}. at 267; [see]{.underline}
[also]{.underline} [Webster's New Universal Unabridged
Dictionary]{.underline} 368 (2d ed. 1979) (defining "comparable" as
"being of equal regard"). Taken together, then, the plain language
interpretation of Standard 4.33.3\'s comparability requirement is
reasonably understood as requiring a qualitative comparison between the
view of the screen afforded patrons who use wheelchairs with the views
of the screen afforded most other members of the movie audience. In
other words, while Standard 4.33.3 does not mandate that patrons who use
wheelchairs be provided the best seats in the house, neither can they be
relegated categorically to locations with the worst views of the screen,
as they are in the overwhelming majority of AMC's stadium-style
theaters. [See]{.underline} discussion [supra]{.underline} pp. 3-6.[^6]

The Department's reading of Standard 4.33.3\'s comparability requirement
also fully supports the central goal underlying Title III of the ADA and
its implementing regulations of ensuring the accessibility and usability
of public accommodations by persons with physical disabilities. As
discussed above, [see]{.underline} discussion [supra]{.underline} pp.
3-6, both Title III and the Department's regulations were intended to
combat the long-standing and pervasive problem of persons with physical
disabilities either being consigned to inferior seating in theaters or
being forced to sit separately from their family and/or companions.
[See]{.underline} [also]{.underline} 42 U.S.C. § 12182(a) (generally
prohibiting disability-based discrimination "in the full and equal
enjoyment" of goods, services, and facilities). The comparative quality
of the viewing experience is thus highly relevant to whether there is
"equal enjoyment" of the benefits of a movie theater. For example, a
wheelchair user who must watch a movie from an extreme angle that causes
significant discomfort and distortion of the picture has not been
afforded "equal enjoyment" of the movie if most other patrons in that
theater are able to watch the film at more comfortable angles and
without screen distortion. That is why the Department reasonably reads
Standard 4.33.3\'s comparability mandate to require not only an
assessment of physical obstructions, but also an analysis of the other
critical factors that affect an individual's viewing experience,
including viewing angles and distances from the screen.

Thus, because the Department's interpretation of Standard 4.33.3\'s
comparability requirement fully comports with the language of the
regulation, and because this interpretation best serves the
anti-discrimination principles underlying Title III of the ADA and its
implementing regulations, the Department's interpretation is entitled to
substantial deference and should be affirmed by this Court.
[See]{.underline}, [e.g]{.underline}., [Thomas Jefferson Univ. v.
Shalala]{.underline}, 512 U.S. 504, 512, 114 S. Ct. 2381, 2386 (1994)
(holding that courts "must give substantial deference to an agency's
interpretation of its own regulations;" an agency's interpretation must
be given "'controlling weight unless it is plainly erroneous or
inconsistent with the regulation'")(quoting [Bowles v. Seminole Rock &
Sand Co.]{.underline}, 325 U.S. 410, 414 (1945)); [accord]{.underline}
[Auer v. Robbins]{.underline}, 519 U.S. 452, 461, 117 S. Ct. 905, 911
(1997); [Barden v. City of Sacramento]{.underline}, 292 F.3d 1073, 1077
(9th Cir. 2002); [Klem v. County of Santa Clara]{.underline}, 208 F.3d
1085, 1089 (9th Cir. 2000); [Dep't of Health & Human Services v.
Chater]{.underline}, 163 F.3d 1129, 1133-34 (9th Cir. 1998).

Such deference is particularly appropriate where, as here, the
Department of Justice has principal authority for administering and
enforcing the provisions of the ADA that govern the design and
construction of new facilities. [See]{.underline} 42 U.S.C. §§ 12186(b),
12183(a)(1), 12188(b)(1)(B). As the Supreme Court has emphasized, "the
\[Justice\] Department's views are entitled to deference" in
interpreting Title III of the ADA because it is the agency "directed by
Congress to issue implementing regulations . . ., to render technical
assistance explaining the responsibilities of covered individuals and
institutions . . , and to enforce Title III in court." [Bragdon v.
Abbott]{.underline}, 524 U.S. 624, 646, 118 S. Ct. 2196, 2207 (1998).
Both this Circuit and other courts have applied this deferential
standard when upholding the Department's interpretations of its Title
III regulations. [See]{.underline} [Botosan v. Paul McNally
Realty]{.underline}, 216 F.3d 827, 833-34 (9th Cir. 2000) (granting
substantial deference to Department's interpretation of another Title
III regulation set forth in technical assistance manual); [Paralyzed
Veterans of Am. v. D.C. Arena, L.P.]{.underline}, 117 F.3d 579, 584-585
(D.C. Cir. 1997) (deferring to Department's reading of Standard 4.33.3
on the issue of lines of sight over standing spectators),
[cert]{.underline}. [denied]{.underline}, 523 U.S. 1003 (1998); [Johnson
v. Gambrinus Co./Spoetzl Brewery]{.underline}, 116 F.3d 1052, 1060-61
(5th Cir. 1997) (deferring to Department of Justice\'s interpretations
of Title III of the ADA); [Fiedler v. American Multi-Cinema,
Inc.]{.underline}, 871 F. Supp. 35, 36 & n.4 (D.D.C. 1994) (granting
deference to Department's interpretation of Standard 4.33.3\'s
"clustering" exception); [see]{.underline} [also]{.underline}
[Barden]{.underline}, 292 F.3d at 1077 (affording deference to
Department's interpretation of ADA and Title II regulations).

> ***B. "Lines of Sight" Is A Well-Established Term of Art in the
> Context of Theater Design That Encompasses Several Factors, Including
> Viewing Angles***

The Department, moreover, did not regulate on a blank slate when
promulgating Standard 4.33.3 In the context of theater design, the
phrase "lines of sight" 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. The Department thus properly relied on this
well understood and accepted meaning of this phrase when promulgating
and interpreting this regulation. [Cf]{.underline}. [Morissette v.
United States]{.underline}, 342 U.S. 246, 263, 72 S. Ct. 240, 250 (1952)
("\[W\]here Congress borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was taken\[.\]")

It is not happenstance that, in any particular assembly area, there is a
certain angular and spatial relationship between the spectacle being
viewed ([i.e]{.underline}. - movie screen or stage) and the seated
spectators. [See]{.underline}, [e.g]{.underline}., Jacobson Depo Tr.,
pp. 17-123 (dated June 20, 2002) (discussing the development of AMC's
design criteria and the design of the Grand 24); [see]{.underline}
[also]{.underline} US SJ App., Vol. 3, Ex. 107 (copy of Jacobson speech
to theater equipment suppliers in 1993 entitled "Designing for the
Comfort Zone"); Expert Report of Peter H. Frink 1-3, 6-14, 17-18 (dated
Aug. 22, 2002) (U.S. SJ App., Vol. 3, Ex. 112) (discussing theater
design considerations and principles). This is because theater designers
(including those working for AMC, [see]{.underline} [infra]{.underline}
pp. 15, 18-20) know, for example: that a seat too close to a movie
screen may make the projected image appear overwhelmingly large,
distorted, or cause the spectator to look upward at a vertical viewing
angle that causes physical discomfort; that, conversely, a seat too far
from the screen may make images on the screen appear overly small and
thus fail to "immerse" the patron in the film experience; that a seat
placed at an extreme horizontal viewing angle off to the side of the
screen may make images appear distorted and cause the spectator to have
to turn his or her head from side-to-side to take in the entire screen
as if watching a tennis match; and, that certain floor slopes (or
elevated risers) are necessary to minimize the likelihood that any
patron's view of the screen will be obstructed by the head of persons
seated in the preceding row(s).

The foregoing principles are set forth in numerous treatises, articles,
and other guidelines on theater design published long before the
Department's promulgation of Standard 4.33.3 Ranging from the seminal
"Treatise on Sightlines and Seating" published by Scottish engineer John
Scott Russell in the 1830s, to the archetypal architectural reference
manual *Architectural Graphics Standards*, to guidelines issued by the
Society of Motion Picture and Television Engineers ("SMPTE"), there is a
wealth of industry references that discuss seating and sightlines in
theaters in terms of well-established design principles governing the
angular and spatial relationships of the spectators and the screen or
stage. [See]{.underline}, [e.g]{.underline}., SMPTE Engineering
Guideline EG 18-1989: *Design of Effective Cine Theaters* (June 1990);
C.G. Ramsey and H.R. Sleeper, "Theater Design Criteria," [Architectural
Graphics Standards]{.underline} 33-39 (Peter H. Frink 8th ed., 1988);
Ernst Neufert, [Architect's Data]{.underline} (2nd Intl. ed. 1980);
George C. Izenour, [Theater Design]{.underline} (1977); Harold
Burris-Meyer & Edward C. Cole, [Theaters and Auditoriums]{.underline}
(2d ed. 1964); John Scott Russell, "Treatise on Sightlines and Seating,"
[Edinburgh New Philosophical Journal]{.underline}, Vol. 27 (1838)
(reprinted in George C. Izenour, [Theater Design]{.underline} at 71 &
App. 3 (1977)). Relevant portions of these treatises and articles are
summarized in the United States' statement of uncontroverted facts and
are attached as exhibits. [See]{.underline} US SJ Facts ¶¶ 43-58; US SJ
App., Vol. 3, Exs. 82-92. It also bears emphasis that both AMC officials
and one of its primary "outside" architects admitted in deposition that
they relied on several of these treatises \-- including the
[Architectural Graphics Standards]{.underline} and the SMPTE guidelines
\-- when designing, or developing criteria for, AMC's stadium-style
theaters. [See]{.underline} US SJ Facts ¶¶ 50-52, 55.

In light of this common usage of the term "lines of sight" in the
context of theater design, the Department has thus reasonably concluded
that factors in addition to physical obstructions -- such as viewing
angles and distance from the screen -- affect whether the views of the
movie screen for patrons who use wheelchairs are equivalent to those of
the majority of other patrons. Indeed, even before the construction of
AMC's first stadium-style theater complex (the Grand 24) in 1995, the
Department took the position, in enforcing Title III, that viewing
angles were relevant in determining whether a public assembly area
complied with the comparable-lines-of-sight requirement of Standard
4.33.3 [See]{.underline} [Independent Living Res. v. Oregon Arena
Corp]{.underline}., 982 F. Supp. 698, 709 n.9 (D. Or. 1997) (noting that
the Department stated in 1994 that "\[i\]n order to fulfill the
requirement that comparable lines of sight and admission prices be
provided in new construction," wheelchair seating locations must be
provided "in each price range, level of amenities, and *viewing
angle*.") (emphasis added).

In 1998, however, the United States learned that a movie theater
operator, Cinemark USA, Inc., was advocating \-- as a litigating
position in a private ADA action involving one of its stadium-style
theater complexes in Texas \-- an interpretation of the phrase "lines of
sight" that conflicted with the long-standing, common usage of that term
in the field of theater design. Cinemark argued in that action that the
"lines of sight" language in Standard 4.33.3 had nothing to do with
viewing angles and simply meant that the spectators' view of the screen
must be unobstructed. [See]{.underline} [Lara v. Cinemark,
U.S.A.]{.underline}, C.A. No. EP-97-CA-502-H, 1998 WL 1048497, (W.D.
Tex. Aug. 21, 1998) (US SJ App., Vol. 3, Ex. 111). In response to
Cinemark's novel interpretation, the Department of Justice filed an
*amicus* brief confirming that Standard 4.33.3\'s comparability
requirement refers not only to visual obstructions but also to
spectators' viewing angles. [See]{.underline} Brief of Amicus Curiae
United States on Summary Judgment Issues, [Lara v. Cinemark USA,
Inc.]{.underline}, C.A. No. EP-97-CA-502-H (W.D. Tex. July 24, 1998)
(copy attached as Exhibit A to AMC's motion for summary judgment). The
Department's *amicus* brief in Lara stated, in pertinent part:

> 'lines of sight' are described by the movie industry itself, and this
> concept provides a way of measuring the quality of the movie viewing
> experience \[citation omitted\]. The vertical field of vision (to the
> top and bottom of the screen), horizontal field of vision, and other
> similar factors are measured to ensure that the viewer has a line of
> sight that approaches an optimal viewing zone. \[citation omitted\].
> These same factors are used to determine whether the viewer has a line
> of sight that results in physical discomfort. . . Once measured, the
> lines of sights provided to wheelchair users must be comparable to
> those provided to members of the general public. "Comparable" is an
> ordinary word used in everyday parlance . . . . Wheelchair locations
> should not be relegated to the worst sight lines in the building, but
> neither do they categorically have to be the best. Instead, consistent
> with the overall intent of the ADA, wheelchair users should be
> provided equal access so that their experience equates that of members
> of the general public.

[Id]{.underline}. at 7-8. The Department's position in
[Lara]{.underline}, therefore, simply reaffirmed the well-established
understanding of the term "lines of sight" that has prevailed for years
among theater designers.

> **C. *Both the Movie Theater Industry and AMC Admit That Standard
> 4.33.3\'s Comparability Requirement Includes Viewing Angles***

Consistent with the architectural principles discussed above, both the
movie theater industry generally, and AMC in particular, have long
agreed (at least until the [Lara]{.underline} litigation began in 1997)
that Standard 4.33.3\'s comparability requirement should be read as
encompassing viewing angles. Indeed, if there is anything approaching a
"smoking gun" in this case (as discussed on pp. 19-20), it is AMC's own
admission in January 1995 \-- nearly five months ***prior*** to the
opening of its first stadium-style theater complex \-- that Standard
4.33.3 should be interpreted such that **"*\[l\]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} US SJ App., Vol. 3, Ex. 108 (emphasis
added). Such evidence stands as a powerful testament to the propriety of
the Department's reading of Standard 4.33.3

First, between 1991 and 1997, the National Association of Theater Owners
("NATO"), a trade organization whose members include the owners and
operators of over 10,000 motion picture screens across the country
(including AMC until 2000), took the position in writing on more than
ten separate occasions that lines of sight should be measured in
degrees, that seats in the front of a movie theater are the "least
desirable," and that seating in the rear portion of most theaters
provides lines of sight that are the "most favored" and the "best in the
house." [See]{.underline} U.S. SJ Facts ¶¶ 59-73. The movie industry
thus plainly understood that lines of sight within the context of
Standard 4.33.3 not only included viewing angles, but also that it was
possible to make qualitative comparisons as between the views afforded
patrons seated in various parts of a theater.[^7]

AMC and its architects, moreover, have similarly acknowledged that views
of the screen from different seats in an auditorium can be qualitatively
compared and that the phrase "lines of sight" encompasses multiple
factors, including viewing angles. For example, AMC's former-Senior Vice
President for Design, Development & Facilities (Mr. Larry Jacobson),
testified that he established AMC's design criteria to take into account
such factors as head clearances (obstructions), horizontal and vertical
viewing angles, distance from the screen, and screen distortion in order
to maximize patrons' viewing experience and comfort. [See]{.underline}
US SJ Facts ¶ 82; [see]{.underline} [also]{.underline} US SJ App., Vol.
3, Ex. 107 (copy of Jacobson speech to theater equipment suppliers in
1993 entitled "Designing for the Comfort Zone"). Mr. Jacobson further
testified that the Grand 24 -- AMC's first stadium-style theater complex
-- was designed based on the foregoing architectural principles. US SJ
Facts ¶ 83. Lastly, Mr. Jacobson recounted some of the myriad problems
raised when these criteria were not followed. For example, he stated
that seats located too close to the screen with consequently large
horizontal or vertical viewing angles would: "make it difficult to sit
back and look at the entire image"; make screen images appear distorted
and overwhelmingly large "like children sitting close to the TV set";
cause patrons to "break their necks"; and, would make watching the movie
"like a tennis match, \[because\] you are looking right and left to see
the edges of the picture, to see the entire picture." [Id]{.underline}.
at ¶ 84; [see]{.underline} [also]{.underline} [id]{.underline}. at ¶ 85.
Indeed, Mr. Jacobson pejoratively characterized the seats in the front
of many of AMC's theaters as "booker seats" -- [i.e]{.underline}., the
"extra" seats added or put in the front of the theater only for revenue
purposes that have less than optimal (and non-comparable) views of the
screen. [Id]{.underline}. at ¶¶ 86-88; [see]{.underline}
[also]{.underline} [id]{.underline}. at ¶ 81 (discussing how the
majority of wheelchair locations at the Norwalk 20, Promenade 16,
Mission Valley 20, Arrowhead 14, and Grand 24 theater complexes were
"outside the comfort zone").[^8]

Second, a representative from one of AMC's primary "outside"
architectural firms, STK Architecture, Inc., acknowledged that,
consistent with his prior testimony in other theater litigation arising
under the ADA, "there's many components of a sight line. Direct angle to
your focal point, the left to right head motion, the up to down head
motion, the clearance in front of the patron in front of you, those are
all components of the sight line \[¶\] . . . . I believe they all can be
components of sight line, yes." Troutman Dep. Tr., pp. 179-81 (July 10,
2002) (US SJ App., Vol. 1, Ex. 30); [see]{.underline} [also]{.underline}
US SJ Facts ¶¶ 77-78 (admissions by other AMC officials and architects
that lines of sight include viewing angles).

Finally, and perhaps most tellingly, AMC itself argued in the first case
involving the application of Standard 4.33.3 to movie theaters --
[Fiedler v. American Multi-Cinema, Inc.]{.underline} -- that this
regulation's comparability requirement should be read to include viewing
angles. In [Fiedler]{.underline}, a private ADA action filed by a
quadriplegic movie-goer who uses a wheelchair for mobility, the private
plaintiff alleged that AMC had violated the ADA by relegating him to
inferior seating at the back of its traditional-style Avenue Grand
Theater at Union Station in Washington, D.C., and by failing to disperse
wheelchair locations throughout the seating area. [See]{.underline}
[Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 25,
36 (D.D.C. 1994).[^9] AMC moved for summary judgment on several grounds
contending that, [inter]{.underline} [alia]{.underline}, the ADA was
inapplicable to the Grand Avenue Theater since AMC leased the property
from the federal government (which is exempt from ADA requirements), and
that, in any event, it was not required to disperse wheelchair locations
based on an exception to Standard 4.33.3 permitting "clustering" of
accessible seating in certain circumstances. [Id]{.underline}. at 36.
The United States filed an *amicus* brief opposing AMC's motion for
summary judgment. [Id]{.underline}. The district court denied AMC's
motion, holding that AMC's Avenue Grand Theater was indeed subject to
the ADA and finding that Standard 4.33.3\'s "clustering" exception
"affords AMC no warrant to consign its wheelchair patrons to the back of
the Avenue Grand Theater." [Id]{.underline}. at 37-39. AMC subsequently
moved for a stay of the court's summary judgment order so it could
pursue an interlocutory appeal. In this stay memorandum, AMC asserted
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. 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). Given this statement, AMC cannot now credibly claim
that the Department's reading of Standard 4.33.3's
comparable-line-of-sight requirement is unreasonable or contrary to the
language of the regulation when AMC itself believed -- at least prior to
this litigation -- that "lines of sight" included viewing angles.

> **D. *The Most Recent Court Decision Addressing Standard 4.33.3 In the
> Context of Stadium-style Movie Theaters Supports the Department's
> Interpretation that "Lines of Sight" Include Viewing Angles and that
> This Regulation Requires A Qualitative Comparison of the Viewing
> Experience of Disabled Patrons and Other Members of the General Public
> ***

Since the advent of stadium-style theaters in 1995 by AMC and other
theater chains, there has been much litigation concerning the
interpretation and application of Standard 4.33.3 to these new types of
movie theaters. [See]{.underline}, [e.g]{.underline}., [Meineker v.
Hoyts Cinemas Corp.]{.underline}, 216 F. Supp.2d 14 (N.D.N.Y. 2002),
[appeal docketed]{.underline}, No. 02-9034 (2nd Cir. Aug. 26, 2002);
[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); [Lara v.
Cinemark, U.S.A.]{.underline}, C.A. No. EP-97-CA-502-H, 1998 WL 1048497
(W.D. Tex. Aug. 21, 1998) ("[Lara I]{.underline}") (US SJ App., Vol. 3,
Ex. 111), [revs'd]{.underline}, 207 F.3d 783 (5th Cir. 2000) ("[Lara
II]{.underline}"). While the results of these cases have been mixed, the
most recent case to address this issue ([Meineker]{.underline})
concluded that, consistent with the Department's interpretation of
Standard 4.33.3\'s comparability requirement, the phrase "lines of
sight" includes viewing angles, and that this regulation demands a
qualitative comparison of views afforded disabled and ambulatory movie
patrons.

As discussed previously, [see]{.underline} discussion supra pp. 16-17,
the [Lara]{.underline} action was the first federal case to address the
interpretation and application of Standard 4.33.3 to stadium-style movie
theaters. At issue in [Lara]{.underline} was Cinemark's placement of
wheelchair locations at its Tinseltown theater complex within rows close
to the screen and outside the elevated stadium-style seating section.
[Lara I]{.underline}, slip op. at \*1. Plaintiffs alleged that such
locations did not afford comparable lines of sight to patrons who used
wheelchairs because they were too close to, and far below the level of,
the screen, thus making viewing the movie screen an awkward and
uncomfortable experience. [Id]{.underline}. Ruling on cross-motions for
summary judgment, the district court held that the Tinseltown theaters
violated Standard 4.33.3 because they did not offer disabled patrons
comparable lines of sight to the screen, in large part due to excessive
vertical viewing angles. [Lara I]{.underline}, slip op. at 2. In short,
the Court concluded that the wheelchair locations at the Tinseltown
theaters turned the movie experience into "Headache City."[^10]

On appeal, the Fifth Circuit reversed, holding that Standard 4.33.3\'s
comparable-line-of-sight requirement mandated only that patrons who use
wheelchairs be afforded "unobstructed" views of the screen.
[See]{.underline} [Lara II]{.underline}, 207 F.3d at 788-89;
[accord]{.underline} [Cinemark]{.underline}, slip op. at 11-14 (adopting
[Lara II]{.underline}); [Regal]{.underline}, 142 F. Supp.2d at 1297-98
(same). The United States believes that the Fifth Circuit's reasoning in
[Lara II]{.underline} is seriously flawed for several reasons. In
summary, the Department believes that the court in [Lara II]{.underline}
erred by: (i) imposing an improper and overly narrow construction on the
phrase "lines of sight"; (ii) ignoring Standard 4.33.3\'s plain language
mandating that patrons who use wheelchairs be afforded "comparable," not
just unobstructed, views of the screen; and (iii) misconstruing, and
placing undue reliance on, certain statements in the Access Board's 1999
notice of proposed rulemaking that post-dated the Department's issuance
of Standard 4.33.3 by several years.[^11]

More recently, in August 2002, the district court in
[Meineker]{.underline} addressed the interpretation and application of
Standard 4.33.3 to a stadium-style theater complex operated by the Hoyts
Cinema theater chain in Albany, New York. The theater complex at issue
in [Meineker]{.underline} featured a combination of seating on a sloped
floor near the screen and seating on elevated stadium-style risers
relatively farther back from the screen. [See]{.underline} 216 F. Supp.
2d. at 15. After surveying the foregoing federal caselaw interpreting
Standard 4.33.3 in the context of stadium-style movie theaters
(including [Lara II]{.underline}), the district court found these
"obstruction only" decisions unpersuasive. Focusing only on
obstructions, the court noted, defies commonsense since it would permit
theater operators to relegate patrons who use wheelchairs to "the
absolute worst seats" with "truly inferior viewing angles." 216 F. Supp.
2d at 18 & n.4. To read Standard 4.33.3 as mandating only that disabled
patrons be provided "unobstructed" views of the screen, the court
reasoned, would do violence to the regulation's comparability mandate:

> The \[Standard 4.33.3\] requirement that lines of sight be
> 'comparable' requires more than that lines of sight for wheelchair
> patrons be unobstructed. The requirement that a line of sight be
> 'comparable' clearly imposes a qualitative requirement that the sight
> line be 'similar' and not merely 'similarly unobstructed.' As such it
> is held that it would not be sufficient for defendant \[Hoyts\] to
> merely provide lines of sight to the screen that are unobstructed.

216 F. Supp. 2d. at 18.[^12] Like [Meineker]{.underline}, this court
should reject [Lara II]{.underline} and its progeny as inconsistent with
both the language and purpose of Standard 4.33.3's comparability
requirement.

**III. [The Department Has Reasonably Interpreted Standard 4.33.3\'s
Integration Requirement To Mandate that Wheelchair Locations Be Placed
Among Fixed Seating Used By Other Members of The General
Public]{.underline}**

In addition to mandating that patrons with physical disabilities be
afforded comparable lines of sight, Standard 4.33.3 also requires that
such wheelchair seating locations "shall be an integral part of any
fixed seating plan\[.\]" In the context of stadium-style movie theaters,
the Department reasonably reads this integration language as requiring
theater operators to provide seating for physically disabled patrons
that is among the seats where a majority of the other patrons actually
sit during the movie. Under well-established administrative law
principles, this interpretation is entitled to substantial deference.
[See]{.underline} discussion [supra]{.underline} pp. 13-14. This Court
should, therefore, affirm the Department's interpretation and grant
partial summary judgment in favor of the United States on the
integration issue.

Standard 4.33.3\'s integration requirement must be read in the context
of the historic patterns of discrimination against persons who use
wheelchairs that forced them to sit in inferior seating \"separate from
accompanying family members and friends.\" 56 Fed. Reg. at 35571. Like
the requirement for comparable lines of sight, the integration
requirement was thus intended to promote integration and equality in
assembly area seating. [Id]{.underline}. In stadium-style theaters, most
members of the general public can, and do, sit in stadium-style seats.
[See]{.underline} discussion [supra]{.underline} pp. 7-8. When
wheelchair locations are placed only in the non-stadium-style section of
the theater, the result is segregation and isolation of persons who use
wheelchairs. Therefore, to be \"integrated" into the fixed seating plan,
a wheelchair space must not only be located in a theater and next to
another seat, it must be part of the fixed seating in the theater where
members of the general public routinely sit. Any other interpretation of
Standard 4.33.3 would result in the very segregation and inequality that
this regulation was intended to prevent.

There can be no dispute, moreover, that the vast majority of AMC's
stadium-style theaters consign patrons who use wheelchairs (and their
moviegoing companions who sit with them) to the sloped-floor,
"traditional" section of these theaters where hardly any other
ambulatory patrons ever choose to sit. During the discovery phase of
this action, the United States conducted court-ordered inspections of
several of AMC's stadium-style theater complexes nationwide.
[See]{.underline}, [e.g]{.underline}, Order Granting in Part and Denying
in Part the United States' Motion for Order Establishing Conditions for
the United States' Inspection of AMC Theaters (filed June 16, 2000)
(Docket \# 137). As part of these inspections, the United States
videotaped patrons taking their seats in a representative sample of
theaters selected by an expert statistician in order to analyze audience
seating preferences. [See]{.underline} Expert Report of Linda Fidell,
Ph.D. 2-8 (dated April 9, 2002) (U.S. SJ App., Vol. 3, Ex. 108).
Statistical analysis of these inspection videotapes established, not
surprisingly, that AMC theater patrons overwhelmingly preferred seats in
the stadium-style section to seats outside the stadium section (on
either the sloped-floor or on so-called "mini-risers") where the
majority of wheelchair spaces are located. [Id]{.underline}. at 3,
11-19; [see]{.underline} [also]{.underline} US SJ Facts ¶¶ 95-104.
Indeed, across all surveyed AMC theater complexes, at least one-half of
the wheelchair spaces were located in areas where only 5-6% of patrons
chose to sit. [Id]{.underline}. at ¶ 101.

The findings of this statistical evidence are also mirrored in the words
of both AMC officials and disabled movie patrons. As noted above,
numerous AMC officials admit that the seats on the sloped-floor close to
the screen are the least preferred and the "last to fill up."
[See]{.underline} discussion [supra]{.underline} p. 9; [see]{.underline}
[also]{.underline} US SJ Facts ¶¶ 42, 94, 105. Disabled patrons,
moreover, have expressed concerns about not only their inferior viewing
experiences but also their profound sense of isolation, loneliness, and
embarrassment when consigned to wheelchair locations on the sloped-floor
near the screen when virtually the entirety of the rest of the movie
audience is sitting behind them in the separate and elevated
stadium-style section of the theater. [See]{.underline},
[e.g]{.underline}., Molina Dep. Tr., pp. 54-55, 76-77, 109-110
(describing feeling of "embarrassment" when forced to sit in
sloped-floor section of theater at AMC Promenade 16 when "nobody else
was sitting in those seats") (US SJ App., Vol. 1, Ex. 23); Gutierrez
Dep. Tr., pp. 37, 43-44 (noting that he and his companion "were the only
two \[movie patrons\] sitting in that whole \[sloped-floor\] section"
and describing his anger and resentment at such inferior seating);
[see]{.underline} [also]{.underline} US SJ Facts ¶¶ 106.

Against this backdrop, it is plain that summary judgment should be
granted in favor of the United States with respect to the interpretation
and application of Standard 4.33.3\'s integration requirement to AMC's
stadium-style theaters. It is undisputed that: (i) from 1995 to 2001,
AMC maintained a pattern and practice of placing wheelchair locations
outside the stadium-style seating sections in theaters with seating
capacities of 300 or fewer patrons (AMC 30(b)(6) (Pennington) Dep. Tr.
pp. 339, 404); US SJ Facts ¶¶ 23-24, 26-27; US SJ App., Vol. 2, Ex. 33,
Attachment 2 (chart summarizing seating layouts of, and placement of
wheelchairs within, AMC's stadium-style theater complexes); (ii) members
of the moviegoing public overwhelmingly prefer to sit in the
stadium-style section of AMC's stadium-style theaters; and (iii) most
members of the moviegoing public do not routinely choose to sit outside
the stadium-style section (on the sloped-floor or on "mini-risers" in
front of the stadium section). Taken together, these facts conclusively
establish that AMC has a pattern and practice of placing wheelchair and
companion seating in the "traditional" sloped-floor section of its small
and mid-sized stadium-style theaters with seating capacities under 300
patrons. This Court should not permit AMC to segregate its patrons who
use wheelchairs into the cinematic equivalent of the "back of the bus."

**CONCLUSION**

Based on the foregoing, the United States respectfully requests that,
pursuant to Fed. R. Civ. P. 56(c) and (d), partial summary judgment be
granted in favor of the United States on the legal issues set forth in
the United States' accompanying conclusions of law. [See]{.underline}
United States' Statement of Uncontroverted Facts and Conclusions of Law
In Support of Plaintiff United States' Motion for Partial Summary
Judgment Re: Line of Sight Issues, Conclusions of Law, ¶¶ 1-5.

DATED: October 25, 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 October, 2002, true and
correct copies of **Memorandum In Support of Plaintiff United States'
Motion for Partial Summary Judgment Re: Line of Sight Issues** were
served by Federal Express, postage pre-paid, on the following parties:

Gregory F. Hurley

Kutak Rock LLP

Suite 1100

18201 Von Karman

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]: The ADA also requires all Title III-covered facilities altered
    after January 26, 1992 to be "readily accessible to and usable by"
    individuals with disabilities "to the maximum extent feasible." 42
    U.S.C. § 12183(a)(2). All of the AMC stadium-style theaters at issue
    in this litigation were constructed and/or altered after January
    1993. [See]{.underline} Appendix (Volume 1) of Declarations and
    Exhibits In Support of Plaintiff United States' Motion for Partial
    Summary Judgment Re: Line of Sight Issues (served Oct. 25, 2002),
    Ex. 1 \[hereinafter "US App., Vol. \_\_, Ex. \_\_"\]).

[^2]: Created in 1973, the Access Board is an independent federal agency
    with responsibility for, among other things, ensuring the
    barrier-free design of federal buildings and federally-assisted
    projects. [See]{.underline} Rehabilitation Act of 1973, Pub. L. No.,
    93-112, § 502 (1973) (codified at 29 U.S.C. § 792);
    [see]{.underline} [also]{.underline}
    http://www.access-board.gov/about/boardhistory.htm (summarizing
    history and jurisdiction of the Access Board). The Board\'s present
    membership includes representatives from 12 federal agencies, one of
    whom is the Department of Justice. [See]{.underline} 29 U.S.C. §
    792(a)(1)(B). Guidelines issued by the Access Board concerning the
    ADA do not, however, have regulatory force and effect; only the
    Department's regulations have the force of law. [See]{.underline},
    [e.g]{.underline}., Americans With Disabilities Act Accessibility
    Guidelines for Buildings and Facilities, 56 Fed. Reg. 35408, 35459
    (1991).

[^3]: Indeed, not until two years after the filing of this enforcement
    action in 1999 did AMC begin constructing and operating theater
    complexes with "full stadium" seating ([i.e]{.underline}. -
    stadium-style seating for all patrons, rather than, as in prior
    designs, a hybrid of stadium and sloped-floor seating).
    [Id]{.underline}. ¶ 25.

[^4]: Since 1995, AMC has also received numerous complaints regarding
    the inferiority of its wheelchair seating locations at its other
    stadium-style theaters nationwide. [Id]{.underline}. ¶¶ 32, 106
    (surveying patron complaints received by AMC).

[^5]: The United States does not herein move for summary judgment on the
    *application* of Standard 4.33.3\'s comparability requirement to
    AMC's stadium-style theaters since such an inquiry would necessarily
    raise disputed factual matters, such as the actual "as built"
    seating configurations of these theaters. Thus, if the Court grants
    the United States' motion for partial summary judgment on Standard
    4.33.3\'s comparability requirement, a trial will still be necessary
    on the application of this requirement to AMC's stadium-style
    theaters absent a settlement agreement by the parties.

[^6]: The Department does not, however, read Standard 4.33.3 as imposing
    specific minimum or maximum viewing angles, distances to the screen,
    or degrees of visual obstruction that a movie theater or other type
    of assembly area is legally permitted to provide for patrons with
    physical disabilities. Indeed, it would be virtually impossible for
    a single regulatory section to set forth design criteria that took
    into account the nature and type of all assembly areas. For example,
    were Standard 4.33.3 read to impose a specific maximum viewing angle
    requirement, it would likely mean that every planetarium -- at which
    celestial images are typically projected on the ceiling above the
    heads of seated patrons -- would "fail" such a viewing angle
    requirement. Thus, the Department believes that Standard 4.33.3\'s
    comparability requirement must be interpreted flexibly in light of
    the configuration and nature of each assembly area so long as
    physically disabled patrons are provided comparable views of the
    screen, stage, or other spectacle being viewed.

[^7]: Indeed, it was not until the commencement of the
    [Lara]{.underline} litigation concerning stadium-style theaters in
    1997 that NATO and its members reversed course and began claiming
    that the term "lines of sight" relates only to obstructions.
    [Compare]{.underline}, [e.g]{.underline}., US SJ Facts ¶¶ 59-72
    [with]{.underline} US SJ Facts ¶ 74; [see]{.underline}
    [also]{.underline} AMC 30(b)(6) Dep. (Pennington) Tr. 240:16-21
    (Oct. 2, 2002) ("Candidly, the discussions I recall . . . where
    unobstructed view of the screen first became a topic, if you will,
    was after the [Lara]{.underline} decision.").

[^8]: Other AMC officials have also admitted that seating in the front
    of their theaters was decidedly less popular and/or provided
    inferior views of the screen. [See]{.underline} US SJ Facts ¶¶
    89-94.

[^9]: Because AMC's Avenue Grand Theater opened for business prior to
    January 1993, Title III's barrier removal requirements for readily
    achievable barrier removal in existing structures applied in that
    case, rather than the more stringent new construction requirements
    applicable in this action. [See]{.underline} [Fiedler]{.underline},
    871 F. Supp. at 38.

[^10]: Specifically, the district court stated in [Lara I]{.underline}:

    > \[T\]he present configuration of the eighteen Tinseltown theaters
    > does not afford wheelchair patrons comparable lines of sight.
    > Either the row designated for wheelchair-bound patrons is too
    > close to the screen or the screen is too high off the ground, or a
    > combination of both. The average viewing angle from this row is
    > above thirty-five degrees, which the Plaintiffs' expert witness
    > has properly described as 'well into the discomfort zone'. . . .
    > It should be stressed that this is not some abstract scientific
    > theory which is difficult for the lay person to comprehend . . . .
    > For the disabled patron, therefore, 'Tinseltown' becomes 'Headache
    > City.'

    Slip op. at 2.

[^11]: An expanded discussion of the Department's views with respect to
    [Lara II]{.underline} and its progeny will be provided in the United
    States' memorandum opposing AMC's recently-filed motion for summary
    judgment that is due to be filed on November 4, 2002 pursuant to the
    Court's recent scheduling order. [See]{.underline} Order Re:
    continuance of Hearing on Defendant AMC's Motion for Summary
    Judgment (filed Oct. 1, 2002) (Docket \# 355); [see]{.underline}
    [also]{.underline} \[AMC's\] Notice of Motion and Motion for Summary
    Judgment (filed Sept. 25, 2002) (Docket \# 346).

[^12]: Based on the particular facts of that case, the
    [Meineker]{.underline} court went on to conclude that the wheelchair
    seating at Hoyts' Crossgates theater complex provided comparable
    lines of sight "because it is located amongst seating for the
    general public and affords viewing angles comparable to those
    afforded to a significant portion of the general public." 216 F.
    Supp. 2d at 18. Notably, Hoyts had relocated the wheelchair
    locations at the Crossgates theater after the commencement of the
    litigation to positions farther from the screen and with better
    viewing angles. [Id]{.underline}. Had Hoyts not done so, the
    district court noted that "\[Hoyt's\] would unquestionably have been
    in violation of the ADA." 216 F. Supp. 2d at 18 n.4.