Number range CHAPTER UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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

)

UNITED STATES OF AMERICA, )

> )

Plaintiff, )

> )

v\. ) Civil Action No. 00-12567-WGY

> )

HOYTS CINEMAS CORPORATION, and )

NATIONAL AMUSEMENTS, INC., )

> )

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**CONSOLIDATED OPPOSITION OF UNITED STATES**

**[TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT]{.underline}**

MICHAEL J. SULLIVAN

> United States Attorney
>
> Michael J. Pineault
>
> Anne G. Depew

Assistant United States Attorneys

One Courthouse Way, Suite 9200

Boston, MA 02210

\(617\) 748-3100

Dated: July 15, 2002

**[INTRODUCTION]{.underline}**

The United States opposes the defendants' motions for summary judgment
for a single, simple reason: the central factual issues raised by this
case -- whether the defendants' stadium-style movie theaters provide
people with disabilities with (i) "comparable" "lines of sight," (ii) in
locations that are an "integral part" of the fixed seating plan -- are
vigorously disputed. The government contends that the lines of sight are
not comparable, based on facts demonstrating that a large number of the
defendants' theaters fail to provide wheelchair access to the elevated
sight lines of the auditoriums' full stadium risers. Instead, wheelchair
users frequently are relegated to the inferior sight lines in the
frontmost rows, much lower and closer to the screen. The government
further contends that the wheelchair areas are segregated, in some
instances due to walls and railings that physically separate them from
other seats but also because of the [de]{.underline} [facto]{.underline}
segregation that results from putting the wheelchair areas in inferior
locations where most people choose not to sit.

The defendants disagree with both of the foregoing assertions. Despite
the parties' material dispute over these core facts, the defendants have
moved for summary judgment. They premise their motions on the contention
that wheelchair seating areas provide comparable lines of sight so long
as they are placed somewhere -- anywhere -- "among" other seats, no
matter where those seats are located or how bad they might be.
Defendants' argument is untenable. "Among" plainly does not equate to
"comparable" if the seats one is "among" are the worst in the house.
Defendants' interpretation also has the impermissible effect of reading
the "lines of sight" requirement out of Standard 4.33.3 by striving to
make it synonymous with defendants' construction of Standard 4.33.3\'s
"integral part" requirement.

Defendants couple their argument regarding "lines of sight" with a
rhetoric-laden assault that labels the government's interpretation of
Standard 4.33.3 "absurd." (National Br. at 3). Defendants' arguments
misstate both the evidence and the government's position. The United
States has not created a "newly-minted" "objective viewing-quality test
designed to "fail" the defendants' theaters. ([Id.]{.underline} at
11-14). Rather, the government has relied on accepted theater design
principles -- principles supported by a body of architectural literature
that the defendants fail even to mention -- to perform a comparative
analysis of the sight lines in the defendants' theaters. The analysis
yields a continuum of seats in each auditorium, ranging from those with
the best sight lines to those with the worst. For those auditoriums
where the wheelchair seating areas fall on the "worst" end of the
continuum, the United States has informed the defendants of its intent
to pursue ADA claims at trial.

The defendants level much of their rhetoric at the number of seats that
do not "pass" all of the theater design principles. In doing so, they
miss the point. The government has not used the design principles as an
objective test of compliance with the ADA. There are 121 auditoriums
with wheelchair locations that "fail" one or more of the design
principles as to which the United States is [not]{.underline} pursuing
ADA claims. Irrespective of the number of "passing" or "failing" seats,
the principles provide a comparative means of distinguishing, pursuant
to the industry's own theater design standards, between the better seats
and the worse seats, and then assessing where the wheelchair locations
in each auditorium fall on the resulting continuum.

Defendants may -- and do -- disagree with the results of the
government's analysis. That disagreement, however, involves factual
disputes over the comparability and integration of the wheelchair areas
in defendants' auditoriums -- factual disputes that must be resolved at
trial.

**[STATEMENT OF RELEVANT FACTS]{.underline}**

With its consolidated opposition, the United States has filed three
statements of facts: (1) The Government's Response to National's
Statement of Undisputed Material Facts (hereafter, "Gov. Nat. Facts");
(2) The Government's Response to Hoyts' Statement of Undisputed Material
Facts (hereafter, "Gov. Hoyts Facts"); and (3) The Government's
Affirmative Statement of Relevant Facts (hereafter, "Gov. Aff.
Facts").[^1]

The United States also has filed the Government's Expert Architectural
Report of Robert Luchetti Associates (the "Luchetti Report"), the expert
statistical report of Pierre-Yves Cremieux (the "Cremieux Report"), the
Government's three-volume Appendix of Documentary Materials in
Opposition to Summary Judgment ("Gov. Doc. App.") and the Government's
one-volume Appendix of Deposition Testimony in Opposition to Summary
Judgment ("Gov. Dep. App.").

**[ARGUMENT]{.underline}**

I. DEFENDANTS' INTERPRETATION OF STANDARD 4.33.3\'S "LINES OF SIGHT"
REQUIREMENT IS UNTENABLE

Section 4.33.3 of the Standards for Accessible Design, 28 C.F.R. Part
36, Appendix A (hereafter "Standard 4.33.3\") requires,
[inter]{.underline} [alia]{.underline}, that public assembly areas,
including movie theaters, be designed and constructed so as to provide
people with disabilities with "lines of sight comparable to those for
members of the general public." The Department of Justice (the
"Department") construes this language to require that a theater operator
provide wheelchair users with lines of sight within the range of viewing
angles offered to most patrons in the theater. Individuals who use
wheelchairs need not be provided the best seats in the house, but
neither can they be relegated to the worst. Instead, they must be
afforded sight lines that are "comparable" -- i.e., similar or
equivalent -- to those enjoyed by most other members of the audience.
The Department has reasonably concluded that factors in addition to
physical obstructions -- such as viewing angles and distance from the
screen -- affect whether individuals' views of the movie screen are
equivalent to those of other patrons. (Gov. Aff. Facts ¶ 61).

This reading of Standard 4.33.3 best comports with the language of the
regulation, with the well-accepted usage of the term "lines of sight" in
the context of theater design, and with the goals of Title III of the
Americans with Disabilities Act ("ADA"). At the very least, the
Department's interpretation of its regulation is a reasonable one to
which the Court should defer.

Defendants' contrary interpretation -- that Standard 4.33.3 requires
only that wheelchair areas have an "unobstructed" view and be located
"among" other seats (even if those seats are the worst in an auditorium)
-- is antithetical to the ADA's anti-discrimination principles and
should be rejected.

A. ["Lines of Sight" is a Well-Accepted Theater Design Term That
Encompasses the Concept of Viewing Angles]{.underline}

[Webster's]{.underline} dictionary defines a "line of sight" as "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). In a
movie theater, the observer is the seated patron. The points at which a
patron looks are the areas on the screen at the front of the theater
where the film is projected. Thus, in a movie theater, lines of sight
are the range of line lengths and angles from a patron's eye to the
various points on the screen where a film is projected. (Gov. Aff. Facts
¶¶ 4-9).

Architects and engineers who specialize in theater design have long
recognized that the lengths and angles of a patron's lines of sight to
the various points on the screen where the patron is looking have a
material impact on the nature and quality of the patron's visual
experience. An analysis of the quality of the "lines of sight" from a
given seat involves more than just examining the issue of physical
obstructions. It also includes an assessment of such factors as whether
the lines of sight to the screen are at such angles that they cause
distortion of the image, lead to physical discomfort for the viewer, or
render the image overwhelming large or, conversely, too small. (Gov.
Aff. Facts ¶ 10). The foregoing principles are set forth in numerous
treatises, articles and publications on theater design, ranging from
John Scott Russell's seminal "Treatise on Sightlines and Seating,"
published in the 1830\'s, to Lucasfilm's *Recommended Guidelines for
Presentation Quality and Theatre Performance for Indoor Theatres*,
published in 2000. (Gov. Aff. Facts ¶¶ 11-24).

In or about June, 1990, the Society of Motion Picture and Television
Engineers ("SMPTE") surveyed the professional literature discussing
lines of sight and theater design and assembled, from that literature, a
list of architectural parameters and criteria for designing an
"effective" cine theater in which "everyone can see and hear well."
SMPTE published those theater design principles in SMPTE Engineering
Guideline EG 18-1989: *Design of Effective Cine Theaters* (hereafter,
the "SMPTE Guidelines") (reproduced at Gov. Doc. App., Ex. 4). Five of
the principles relate to lines of sight. (Gov. Aff. Facts ¶¶ 15-21).
They are:

1.  [Image size]{.underline} examines how much of a patron's field of
    vision is occupied by the projected image -- i.e., how large is the
    screen and how close or far back from it can seats be located
    without having the screen appear overwhelmingly large or,
    conversely, too small. The SMPTE Guidelines recommend,
    [inter]{.underline} [alia]{.underline}, that the horizontal
    subtended angle created by a patron's lines of sight to the left and
    right edges of the screen be not less than 30 degrees.

2.  [Image Distortion]{.underline} causes circles to become ellipses,
    squares to become rhombuses and all shapes to become distorted as a
    "viewer's line of sight to the screen deviates from the
    perpendicular." The SMPTE Guidelines cite research published by Dr.
    Reubens Meister in 1966, defining three iso-deformation zones: (a)
    zone "i", in which image distortion would not be noticed; (b) zone
    "ii", in which distortion would be noticeable but tolerated; and (c)
    zone "iii", in which distortion would be sufficiently severe to
    cause viewers to reject those seats. The SMPTE Guidelines recommend
    that all seats be located within the 45 degree iso-deformation
    boundary line that defines zones "i" and "ii".

3.  [Visibility]{.underline} relates to the extent of any physical
    obstructions between a viewer and the screen. The SMPTE Guidelines
    recommend that every viewer "have an unobstructed vertical and
    horizontal sightline to the image on the screen."

4.  [Comfort]{.underline} involves, among other things, whether a
    patron's "vertical viewing angle to the top of the screen is
    excessive or the lateral viewing angle to the centerline of the
    screen requires uncomfortable head and/or body position." To avoid
    physical discomfort to viewers, the SMPTE Guidelines recommend that
    the "nearest viewer's vertical line of sight should not exceed 35
    from the horizontal to the top of the projected image, and
    preferably should be 15 to the horizontal centerline of the screen
    image."

5.  [Architectural Distractions]{.underline} relate to whether elements
    of a theater's interior intrude on a patron's visual field such as
    to "distract the viewer's attention from the projected image." The
    SMPTE Guidelines recommend that such distractions be minimized.[^2]

The theater design guidelines summarized by SMPTE represent a
compilation of accepted architectural principles that are documented in
an established body of professional literature relating to theater and
auditorium design. (Gov. Aff. Facts ¶¶ 11-24).

B. [The Theater Industry Itself Has Acknowledged that "Lines of Sight"
Encompass More than Just Obstruction and that Seats in the Front Are the
Worst.]{.underline}

Consistent with the architectural principles summarized above, the
theater industry repeatedly acknowledged -- up until the first
stadium-style theater ADA lawsuit in 1997 \-- that "lines of sight"
meant more than just obstruction and that seats at the front of theaters
had inferior lines of sight and were the least preferred.

Between 1991 and 1997, the National Association of Theatre Owners
("NATO"), the theater industry's trade and lobbying organization, took
the position in writing on more than ten separate occasions that "lines
of sight are most commonly measured in degrees"; that seats in the front
of a movie theater are the "least desirable" and "the last to be taken";
and that seats in the rear provide lines

of sight that "are the best in the house," with the "smallest viewing
angle" and are the "most favored." (Gov. Aff. Facts ¶¶ 26-41).

Hoyts likewise acknowledged that there were recognized architectural
criteria defining "acceptable" versus "unacceptable" sight lines and
that those criteria included more than just the issue of obstructions.
In or about 1991, Hoyts' outside architect prepared a design guidelines
manual for Hoyts' cinemas. The manual stated: "Seating areas should be
designed to minimize viewing distortions and discomfort due to
exaggerated viewing angles or incorrect viewing distances from the
screen." The manual also discussed image distortion and iso-deformation
zones at length. (Gov. Aff. Facts ¶ 45). At or about the same time, in
March, 1991, Hoyts took the position, in writing, that the SMPTE
Guidelines "best described" the "industry standards regarding
sightlines."[^3] (Gov. Aff. Facts ¶ 43).

It was not until the commencement of litigation concerning stadium-style
theaters that NATO and its members reversed course and began arguing
that the term "lines of sight" relates only to obstruction and that no
seat is superior/inferior or more or less preferred to any other.

C. [Pursuant to the Accepted Definition of "Lines of Sight," Defendants'
Stadium-Style Movie Theaters Violate Standard 4.33.3\'s Comparability
Requirement]{.underline}

Pursuant to the architectural principles published in theater design
treatises and acknowledged by the theater industry itself (at least
until 1997), a large number of the defendants' stadium-style auditoriums
provide people with disabilities with inferior lines of sight.

Hoyts currently operates 25 theater complexes with stadium-style
seating. National operates 32 and is building more. (Gov. Aff. Facts ¶
69). In "stadium-style" cinemas, most of the seating is placed on tiers
or risers, with each row generally elevated 12 to 18 inches above the
row in front of it, as in a sports stadium. ([Id.]{.underline} ¶ 66).
The screens utilized in such theaters are substantially larger and "span
wall-to-wall." The result, in the defendants' words, is "cutting edge
theater design" that "\[e\]nsures moviegoers the ultimate cinematic
experience" and represents "one of the greatest advances in moviegoing
in years." ([Id.]{.underline} ¶¶ 67-68).

The United States has submitted an expert architectural report, prepared
by Robert Luchetti (the "Luchetti Report"),[^4] containing drawings for
each of the defendants' stadium-style auditoriums that depict the
location of the wheelchair areas relative to the other seats in the same
auditorium and analyze the corresponding lines of sight. The analysis is
premised on the theater design principles summarized above, and includes
an evaluation of the primary architectural criteria, such as image size,
vertical viewing angle, and image distortion (iso-deformation), that are
recognized and accepted in the professional literature as relevant to
assessing the quality of lines of sight. ([Id.]{.underline} ¶¶ 109-15).
Luchetti does not opine in his report on whether wheelchair locations
comply with the legal requirements of Standard 4.33.3. He simply
performs an architectural analysis of lines of sight. ([Id.]{.underline}
¶ 116).

Following completion of the Luchetti Report, the Department determined
which of the defendants' stadium-style auditoriums the government
intended to pursue for alleged violations of the ADA. It did so pursuant
to a comparative analysis that examined whether the quality of the lines
of sight from the wheelchair locations in any given auditorium was
comparable (i.e., similar or equivalent) to the quality of the lines of
sight provided most other members of the public.[^5] The United States
provided a list of the auditoriums as to which it intended to pursue ADA
claims in Plaintiff's Second Supplemental Response to Defendants' First
Set of Interrogatories. ([Id.]{.underline} ¶ 117).[^6]

For each of the listed auditoriums, the Luchetti Report's drawings set
forth the factual bases for the government's assertion that the
defendants have failed to provide people in wheelchairs with comparable
lines of sight. Put simply, in the small and medium-sized auditoriums
(those containing

fewer than 300 seats), the required wheelchair spaces generally are
confined to the frontmost rows of the theater, on a flat or sloped floor
or low riser, materially closer to the screen and at a lower elevation
than the majority of the other seats. In large auditoriums (containing
300 or more seats), many of the required wheelchair spaces likewise are
located in the frontmost rows.[^7] (Gov. Aff. Facts ¶¶ 75-79, 119). The
vertical and horizontal sight line angles from those rows are greater,
forcing people in wheelchairs to tilt their necks and/or swivel their
heads to look at the large screen immediately in front of them.
Moreover, because of the proximity and size of the screen, the images
are often distorted and overwhelmingly large. Wheelchair users are
deprived access to the enhanced sight lines afforded from the elevated
stadium risers situated farther back from the screen, because the risers
can be reached only by climbing steps. (Gov. Aff. Facts ¶¶ 120-21).

Drawings and photographs for three sample auditoriums, Auditorium 2 at
Hoyts' complex in Westboro, MA; Auditorium 11 at Hoyts' complex in
Bellingham, MA; and Auditorium 1 at National's complex in Randolph, MA,
demonstrate these points. [See]{.underline} Tabs A, B and C,
respectively. In all three auditoriums, the wheelchair areas are located
on a flat floor, within the first 3 rows, much closer and lower to the
screen than the stadium seats. The vertical sight line angles to the
screen are significantly steeper. The areas fall within Meister's
iso-deformation zone "iii" \-- the zone in which image distortion is the
greatest. They also do not provide the benefit of the elevated sight
lines afforded from the stadium risers located farther back from the
screen. By virtually all accepted measures, the wheelchair spaces fall
within the seating area offering the worst lines of sight in the
theater.

D. [Defendants Have Long Been On Notice That the Sight Lines Provided to
Wheelchair Users in Their Stadium-Style Theaters Are Inferior, Contrary
to Standard 4.33.3\'s Requirements.]{.underline}

Defendants cannot claim ignorance concerning the inferior nature of the
lines of sight that so many of their stadium-style theaters provide to
patrons in wheelchairs. NATO has long acknowledged the poor quality of
the sight lines from the front of the auditorium. (Gov. Aff. Facts ¶¶
31-41). The theater design principles that provide the technical bases
for analyzing sight line quality similarly have been in existence for
many years. ([Id.]{.underline} ¶¶ 10-24). These established principles,
together with the language of the regulation, placed the defendants on
notice that their stadium-style theaters failed to provide comparable
lines of sight and hence violated Standard 4.33.3.[^8]

In addition, Hoyts and National began receiving complaints regarding the
inferior sight lines provided to wheelchair users in their stadium-style
theaters almost as soon as the first theaters opened their doors. (Gov.
Aff. Facts ¶¶ 80-92). The complainants included Suzanne Deck, who
described National's stadium-style theater in Maumee, OH in the
following terms:

> It's the most horrible movie experience I've had. You're just so close
> to the front of the screen. The screen is so large and so big that the
> image is all blurred and fuzzy and grainy, and you have to constantly
> move your head from side to side to get the whole screen or view in.
> It's just the most horrible experience I've had. Your neck is craned
> back. And I just refuse to go.

([Id.]{.underline} ¶ 92). Deck complained in person to National's
then-Vice President of Construction, Peter Brady. (Deck Tr. at 87) (Gov.
Dep. App, Ex. 1).

Defendants' own architects and consultants began advising, as early as
April, 1996, that mezzanine level access be provided in order to permit
placing wheelchair locations in the stadium seating sections. Thomas
Bakalars, Hoyts' outside architect on Westboro, one of the company's
first stadium-style complexes, prepared a schematic design in April,
1996 providing precisely that form of access. Hoyts rejected it,
instructing Bakalars to "eliminate" the handicapped seating in the
stadiums of all auditoriums under 300 seats because it needed to
"\[g\]et the cost of building down" and there was "enough precedent to
argue in court to do this." (Gov. Aff. Facts ¶¶ 95-97).

Rolf Jensen Associates, Hoyts' building code consultant on a number of
stadium-style theater complexes, advised the company in September, 1997
that: "At this time, it is our recommendation that all new designs of
stadium style facilities incorporate mid-level entry to facilitate
wheelchair locations in the center of the stadium seating." Hoyts
rejected that recommendation as well. ([Id.]{.underline} ¶¶ 100-01).

Roncelli, Inc., a construction manager retained by National on several
of its stadium-style theater projects, wrote in August, 1998:

> We feel that handicap seating should be included within the stadium
> riser seating area for the benefit of the physically challenged
> patron. The availability of equal, optimum site lines to every theater
> patron should be the goal of any plan.

(Gov. Aff. Facts ¶ 105).

Yet, notwithstanding the complaints of patrons and the recommendations
of their architects and consultants, Hoyts and National constructed
substantial numbers of stadium-style theaters that relegated people in
wheelchairs to the inferior, frontmost seats. They did so not because it
was impossible to do better, or because they did not know how.[^9]
Rather, the defendants apparently were driven by a desire to "get the
cost\[s\] . . . down," coupled with a professed assertion that there was
enough "precedent" to allow them to get away with it in "court." As the
following section demonstrates, they are mistaken.

E. [Defendants' Proposed Interpretation of "Comparable Lines of Sight"
Should Be Rejected]{.underline}

Hoyts and National ask this Court to adopt an interpretation of Standard
4.33.3\'s "lines of sight" requirement that ignores accepted theater
design principles, violates the core anti-discrimination tenets of the
ADA, and, most fundamentally, runs counter to the common sense of anyone
who has ever sat in the frontmost rows of a movie theater. Defendants
claim that comparability requires only: (a) the absence of physical
obstructions, and (b) that wheelchair areas be "among" other seats, no
matter where those seats are located or how bad they might be. (National
Br. at 7, 9). No rational support exists for such a construction of
Standard 4.33.3. Further, the three judicial decisions that have adopted
defendants' interpretation are fundamentally flawed.

1\. [Defendants' Interpretation Ignores Recognized Theater Design
Principles]{.underline}

Defendants' arguments fly in the face of common sense and recognized
architectural principles. There is more to the comparability of "lines
of sight" than just the absence of physical obstructions.
([See]{.underline} pp. 3-8, above.) By definition, seats in the front
row will generally never have a physical obstruction blocking the view
of the screen. The seats still are "horrible." (Deck Tr. 150-51) (Gov.
Dep. App., Ex. 1). The images are distorted. The size of the picture is
overwhelming. A patron must tilt her neck back and move her head from
side to side to watch the action. [Id.]{.underline}. Our own eyes tell
us the seats are the worst in the theater. NATO has admitted it.[^10]

There is likewise more to comparability than simply being "among" other
seats. Wheelchair users plainly do not have similar or equivalent lines
of sight if the seats they are "among" are the worst in the house. That,
however, is precisely where many of the wheelchair areas are located --
in the frontmost rows where the sight lines are "inferior" and the seats
are the "last taken."

2\. [Defendants' Interpretation Violates the ADA's Anti-Discrimination
Principles and Accepted Tenets of Regulatory Construction]{.underline}

Defendants' proffered interpretation of Standard 4.33.3 violates the
maxim requiring that regulations be interpreted in a manner consistent
with the principles of the underlying statute. [E.g.]{.underline},
[Secretary of Labor v. Western Fuels-Utah, Inc.]{.underline}, 900 F.2d
318, 320 (D.C. Cir. 1990) (regulation must be interpreted so as to
harmonize with and further, not conflict with, the objective of the
statute it implements); [Campesinos Unidos, Inc. v. U.S. Dep't of
Labor]{.underline}, 803 F.2d 1063, 1069 (9th Cir. 1986) (court\'s task
is to interpret a regulation as a whole, in light of overall statutory
and regulatory scheme). Title III of the ADA unambiguously prohibits
discrimination by public accommodations and commercial facilities,
including movie theaters. 42 U.S.C. §§ 12181-12189. It mandates, among
other things, that all places of public accommodation and commercial
facilities constructed after January 26, 1993, be "readily accessible to
and usable by" individuals with disabilities. 42 U.S.C. § 12183(a)(1).
This mandate requires, [inter]{.underline} [alia]{.underline}, that the
"service offered to persons with disabilities \[be\] equal to the
service offered to others." H.R. Rep. No. 101-485 (III), at 499-500
(1990).

Defendants' proffered interpretation of Standard 4.33.3 flouts these
anti-discrimination principles. If wheelchair areas can be placed
anywhere in a theater so long as they are "among" obstruction-free
seats, no matter where those seats are located or how bad they might be,
then the defendants are free to construct stadium-style seating -- "one
of the greatest advances in moviegoing in years" -- and deny access to
that seating to the more than two million Americans who use
wheelchairs.[^11]

Defendants' contentions likewise ignore the deference that properly
should be accorded the Department's construction of its own regulations.
[Bragdon v. Abbott]{.underline}, 524 U.S. 624, 646 (1998) ("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.").[^12] The
Department's interpretation must be upheld unless it is "plainly
erroneous or inconsistent with the regulation." [Auer v.
Robbins]{.underline}, 519 U.S. 452, 461 (1997). "In other words, \[the
Court\] must defer to the \[Department's\] interpretation unless an
'alternative reading is compelled by the regulation's plain language or
by other indications of the \[Department's\] intent at the time of the
regulation's promulgation.'" [Thomas Jefferson Univ. v.
Shalala]{.underline}, 512 U.S. 504, 512 (1994). Circuit courts of appeal
have applied this deferential standard in other contexts in upholding
the Department's interpretations of its ADA regulations.[^13]

Finally, defendants' contention that "comparable lines of sight" simply
means "among" ignores the "cardinal principle" requiring that every
clause and word of a statute or regulation be interpreted so as to give
it effect. [E.g.]{.underline}, [Bui v. DiPaolo]{.underline}, 170 F.3d
232, 237 (1st Cir. 1999); [United States v. Ven-Fuel, Inc.]{.underline},
758 F.2d 741, 751-52 (1st Cir. 1985). Defendants' proffered
interpretation arguably is intended to render "lines of sight" little
more than a synonym of Standard 4.33.3\'s separate requirement that
wheelchair seating be an "integral part" of the fixed seating plan, thus
improperly reading the "lines of sight" provision out of the
regulation.[^14]

3\. [The Judicial Decisions on Which Defendants Rely Were Wrongly
Decided]{.underline}

Defendants' argument that the "history" of Standard 4.33.3 supports
their interpretation is misplaced. (National Br. at 7-8). The argument
is essentially bottomed on the Fifth Circuit's decision in [Lara v.
Cinemark]{.underline}, 207 F.3d 783 (5th Cir. 2000), and the two
district courts that subsequently followed it.[^15] The
[Lara]{.underline} decision, however, is fundamentally flawed.

First, the Fifth Circuit's interpretation finds no support in the
regulation's language. Standard 4.33.3, on its face, requires that lines
of sight be "comparable," not just unobstructed.

Second, the Fifth Circuit was mistaken in suggesting that the phrase
"lines of sight" had traditionally been understood to mean only
unobstructed view. [Lara]{.underline}, 207 F.3d at 788-789. As explained
above, the term "lines of sight" in the context of theater design has
commonly been used to refer not just to the degree of obstruction but
also the viewing angles of spectators.[^16]

Third, the Fifth Circuit erred in the importance that it placed on the
absence of explicit references to viewing angles during the Department's
promulgation of Standard 4.33.3 in 1991 or in the 1994 version of the
Department's Title III Technical Assistance Manual. [Lara]{.underline},
207 F.3d at 788. Stadium-style multiplexes did not exist in 1991 or in
1994. The traditional sloped floor cinemas that were being built did not
have the type of dramatic disparities in vertical viewing angles later
found in the stadium-style theaters that began to be constructed in
1996. When the Department promulgated its regulation in 1991 and amended
its Technical Assistance Manual in 1994, it was not required to
anticipate every future design innovation that might affect the
comparability of lines of sight in theaters and thus conceivably warrant
mention and discussion. The Department's inability to predict the
future, however, does not limit its authority to apply the language of
its regulation to new factual situations as they develop.
[Cf.]{.underline} [Pennsylvania Dep't of Corr. v. Yeskey]{.underline},
524 U.S. 206, 212 (1998) (ADA can be applied to prisons even assuming
Congress did not anticipate coverage of prisons when it drafted
statute). One reason that the judiciary defers to administrative agency
interpretations is to allow an agency the flexibility to adjust to
changing circumstances. [Martin v. Occupational Safety and Health Review
Comm'n]{.underline}, 499 U.S. 144, 151 (1991) (agency has inherent
authority to interpret its own regulations because "applying an agency's
regulation to complex or changing circumstances calls upon the agency's
unique expertise and policymaking prerogatives").

Fourth, the Fifth Circuit erred, legally and factually, in concluding
that the Department's interpretation of Standard 4.33.3 was not entitled
to deference because, in the court's view, it was inconsistent with the
Access Board's understanding of its ADA guidelines. Legally, the Fifth
Circuit erred in assuming that any post-1991 interpretation of Standard
4.33.3 by the Access Board could limit

the authority of the Department of Justice to construe its own
regulation. The Department of Justice, not the Board, has the sole
authority to issue binding regulations to implement the statutory
provisions at issue here. 42 U.S.C. 12186(b). Although those regulations
must be "consistent with the minimum guidelines and requirements issued
by the" Access Board, 42 U.S.C. 12186(c), the Board's guidelines do not
themselves have the force of law; and 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). As a result, it is the Department's views -- not the
Access Board's -- to which the courts owe deference in determining the
meaning of the Department's regulation. [See]{.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).

Factually, the Fifth Circuit mistakenly assumed that the Access Board
does not interpret Standard 4.33.3, as currently written, to require
comparable viewing angles in theaters. [See]{.underline}
[Lara]{.underline}, 207 F.3d at 788-789. In fact, the Board has
recognized that viewing angles are relevant in determining whether sight
lines in stadium-style theaters are "comparable." It explicitly 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. 62,278 (Nov. 16, 1999) (emphasis added). 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 areas, row spacing, staggering of
seats, and floor slope" (Gov. Aff. Facts ¶ 63).[^17] Finally, the
general counsel of the Access Board testified at his deposition in this
case that the Board agreed with the Department's interpretation of
Standard 4.33.3. ([Id.]{.underline} ¶ 65).

For these reasons, the defendants' reliance on [Lara]{.underline} is
misplaced. The Fifth Circuit court 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 but also would
allow theater owners to restrict wheelchair users to decidedly inferior
seating. This Court should decline to endorse a reading of Standard
4.33.3 that would so undermine the purposes of Title III of the ADA.

II\. EVEN IF DEFENDANTS' FLAWED INTERPRETATION WERE ACCEPTED, THEIR
WHEELCHAIR SEATING AREAS HAVE OBSTRUCTED LINES OF SIGHT AND ARE NOT
INTEGRATED INTO THE SEATING PLAN

Summary judgment is not warranted even if the defendants' interpretation
of Standard 4.33.3 were to be accepted, for two reasons.
[First]{.underline}, the view from the wheelchair seating areas in a
considerable number of defendants' auditoriums [is]{.underline}
obstructed compared to other seats, due to the frequent placement of
wheelchair areas at the back of cross-aisles. Such placement causes
wheelchair users' views of the screen to be physically blocked each time
a patron walks along the cross-aisle after the start of a film either to
(a) get to a seat, or (b) leave the theater. (Gov. Aff. Facts ¶¶
123-26). Hoyts has conceded, in writing, that "crossing patrons" are
"disruptive" to wheelchair users sitting at the back of cross-aisles,
([Id.]{.underline} 127-28), yet both Hoyts and National continue to
locate many of their wheelchair areas there.

[Second]{.underline}, in addition to the provision of comparable lines
of sight, Standard 4.33.3 requires that wheelchair areas be an "integral
part of any fixed seating plan." Hoyts has violated this "integration"
requirement by physically segregating the wheelchair areas in 17 of its
stadium-style auditoriums from the rest of the seating plan through the
use of steps, railings and/or walls. ([Id.]{.underline} ¶¶ 131-35).

In addition, both Hoyts and National have violated the "integral part"
requirement by placing wheelchair areas in sections of the auditorium
where, because of the inferior lines of sight, most people choose not to
sit. This [de]{.underline} [facto]{.underline} segregation of people
with disabilities was corroborated by a statistical seat selection
survey that the United States conducted in this case, which demonstrated
that in a significant percentage of the sampled theaters, patrons prefer
not to sit in the frontmost rows of the theaters where wheelchair spaces
are located. ([Id.]{.underline} ¶¶ 139-41). Such segregation also has
been implicitly conceded by NATO, in its repeated acknowledgment that
the frontmost rows are the "least preferred" and the "last taken,"
([Id.]{.underline} ¶¶ 31-41), as well as by Hoyts, in its concession
that the front row is a "dead" row that will hardly ever be used.
([Id.]{.underline} ¶ 51). Standard 4.33.3\'s integration requirement is
not satisfied by putting wheelchair spaces in rows at the fronts of
auditoriums, in locations where the defendants know very few people (if
anyone) will choose to sit.

III\. DEFENDANTS MISCHARACTERIZE THE EVIDENCE AND THE GOVERNMENT'S
POSITION REGARDING STANDARD 4.33.3.

Together with advancing their own interpretation of the law, the
defendants attack what they claim to be the government's "absurd"
interpretation of Standard 4.33.3. Their arguments misstate the evidence
and the government's actual position in three principal respects:

1\. The government's architectural expert, Robert Luchetti, did not
"make up" the theater design principles that he used to evaluate lines
of sight in the defendants' theaters. He relied on an established body
of architectural and engineering literature, discussed above, which the
defendants wholly fail to mention. The string of partial quotes that the
defendants piece together from Luchetti's deposition neither fairly nor
accurately summarize the explanation that Luchetti gave during his
testimony (and also in his report) concerning the recognized design
principles on which he relied. The United States has responded to the
incomplete excerpting of Luchetti's deposition in its responses to the
defendants' statements of "undisputed" material facts.
([E.g.]{.underline}, Gov. Nat. Facts ¶¶ 16, 21, 25, 33, 51).

2\. The defendants mischaracterize the deposition testimony of a number
of other witnesses, whom National describes as having "struggled
helplessly" to define and explain "lines of sight" or the theater design
principles on which Luchetti relied. (James Raggio, Ruth Lusher, David
Capozzi, Andrew Lelling). (National Br. at 17). All of these witnesses
testified that they had no training or experience in movie theater
design -- a fact not mentioned by the defendants. (Gov. Nat. Facts. ¶¶
36-50). James Raggio, in particular, reiterated his lack of knowledge
concerning theater design more than fifty times in response to repeated
questioning about the technical meaning of design terms. (Gov. Nat.
Facts ¶ 42). As Raggio explained, however, the fact that he "personally"
could not answer defense counsel's questions "doesn't mean that there
are not other people who have the technical expertise in terms of
designing movie theaters who could . . . ." ([Id.]{.underline}) The
witnesses' inability to define theater design terms does not mean that
those terms have no recognized meaning -- they do -- nor does it mean
that Luchetti made the terms up -- he didn't.

3\. The United States does not interpret -- and never has interpreted --
Standard 4.33.3 to require compliance with any "objective
viewing-quality test." (National Br. at 11-14). Rather, the government
consistently has contended that the regulation is a comparative one that
requires theater owners and operators to provide people with
disabilities with lines of sight of a quality that is similar or
equivalent to the lines of sight provided to most other members of the
public. (Gov. Aff. Facts ¶¶ 59-65). Here, the United States utilized
accepted theater design principles to perform a comparative analysis of
the quality of the sight lines provided in the defendants' theaters. The
analysis yielded a continuum of seats in each auditorium, ranging from
those with the best sight lines to those with the worst. For those
auditoriums where the wheelchair seating areas fell on the "worst" end
of the continuum, the United States informed the defendants of its
intent to pursue ADA claims at trial.

The defendants' complaints about the number of seats that do not "pass"
all of the referenced theater design principles miss the mark.[^18] No
one has ever claimed that movie theaters are designed with the objective
of having all seats meet the design principles.[^19] The fact that every
theater likely has some (or even many) seats that fail one or more of
the design principles does not mean, however, that the criteria cannot
validly be used for comparing the relative quality of sight lines
between and among seats, any more than the fact that automobile
manufacturers might not routinely build the "perfect" car precludes one
from using accepted automotive design principles to compare a Mercedes
to a Hyundai. Some seats pass by a lot; some pass by a little; some fail
by a lot; some fail by a little. The result is a continuum, and what
matters is where the wheelchair spaces fall on that continuum.

In sum, the government did not use the theater design principles as an
objective pass/fail test of ADA compliance. Indeed, there are 121
auditoriums with wheelchair locations that "failed" one or more of the
design principles as to which the United States is [not]{.underline}
pursuing ADA claims. (Gov. Aff. Facts ¶¶ 117-18).[^20] The principles
were used as a comparative means of analyzing, pursuant to the
industry's own design standards, whether the sight lines from the
wheelchair areas in each auditorium were comparable in quality to the
sight lines provided most members of the general public.

IV\. HOYTS' INJUNCTION ARGUMENTS ARE WITHOUT MERIT

Hoyts contends that even if the Court denies its motion for summary
judgment on liability issues, it nevertheless should dismiss the demand
for injunctive relief in this case. (Hoyts Br. at 15-20). The argument
is without merit.

Hoyts does not cite a single case in which a request for injunctive
relief was dismissed on summary judgment because the plaintiff's demand
for such relief, or the pretrial pleadings relating to such relief, were
insufficiently specific. Most of the cases arise under Fed. R. Civ. P.
65(d), which refers to the level of specificity required of injunctive
orders issued by courts after trial, not the specificity of a party's
pre-trial request for such relief. [See]{.underline} [United States v.
Georgia Power Co.]{.underline}, 301 F. Supp. 538, 543 (N.D. Ga. 1969)
(denying motion to dismiss claim for injunctive relief because Rule
65(d) applies only to the form of the final order issued by the court
and does not require that the demand for injunctive relief be
specific).[^21]

In addition, Hoyts' argument ignores that the Court will be able to
fashion injunctive relief with the specificity Rule 65(d) requires after
the trial of this action. [See]{.underline}, [e.g.]{.underline},
[Pottinger v. City of Miami]{.underline}, 810 F. Supp. 1551, 1583 (S.D.
Fla. 1992) (court notes its ability to fashion injunctive relief that
complies with Rule 65(d) after hearing evidence at trial).

[CONCLUSION]{.underline}

The United States has set forth detailed factual bases to support its
assertion that the auditoriums it is pursuing in this case provide
wheelchair users with materially inferior lines of sight and segregate
people with disabilities either in physically separate areas or in
sections of the auditorium where, because of the inferior sight lines,
most people choose not to sit. National and Hoyts remain free to dispute
the government's factual evidence and, in many respects, they have. Such
factual disputes, however, go to the heart of the core issues in the
case and render summary judgment inappropriate. The defendants' motions
should be denied.

Respectfully submitted:

UNITED STATES OF AMERICA

By its attorneys,

MICHAEL J. SULLIVAN

> United States Attorney
>
> Michael J. Pineault
>
> Anne G. Depew

Assistant United States Attorneys

One Courthouse Way, Suite 9200

Boston, MA 02210

Dated: July 15, 2002 (617) 748-3100

[^1]: ^?^ The first two pleadings respond to the separate statements of
    allegedly "undisputed" facts submitted by each of the defendants.
    The third pleading sets forth relevant, material facts that the
    defendants omitted from their statements.

[^2]: ^?^ SMPTE re-approved and reissued its theater design guidelines
    in 1994. (Govt. Doc. App., Ex. 6).

[^3]: ^?^ Numerous architectural drawings prepared throughout the
    relevant time period further demonstrate that both Hoyts' and
    National's architects were analyzing sight lines (including sight
    line angles) to the bottom, middle and top of the screen. (Gov. Aff.
    Facts. ¶¶ 47, 48, 52-56).

[^4]: ^?^ Luchetti has substantial theater design experience. During the
    period from 1987 to 1996, he designed hundreds of theaters for
    General Cinemas Corporation. (Gov. Aff. Facts ¶ 70). By contrast,
    Hoyts' proposed expert, John Salmen, has never designed a movie
    theater and does not consider himself to be an expert in movie
    theater design. Similarly, National's proposed expert, John Paul
    Scott, has never served as architect of record in connection with
    the design or construction of any movie theater. [Id.]{.underline}

[^5]: ^?^ The government also evaluated the "integral part" requirement
    of Standard 4.33.3. [See]{.underline} pp. 16-17, below.

[^6]: ^?^ The government's Second Supplemental Response amended an
    earlier First Supplemental Response. ([Id.]{.underline})

[^7]: ^?^ It is not uncommon to see additional wheelchair areas in large
    auditoriums situated farther back from the screen. Depending on the
    auditorium, there may or may not be sight line problems relating to
    this second location.

[^8]: ^?^ For these reasons, the defendants' sometimes-mentioned "void
    for vagueness" arguments are without merit. [E.g.]{.underline},
    [United States v. Professional Air Traffic Controllers
    Org.]{.underline}, 678 F.2d 1, 3 (1^st^ Cir. 1982) (an order using
    the term "picket" is not unconstitutionally vague, as the term is
    understood in "common parlance" and those to whom the order was
    directed only disclaimed understanding as a "legalistic
    afterthought."); [Precious Metals Assoc. v. Commodity Futures
    Trading Comm'n]{.underline}, 620 F.2d 900, 907 (1^st^ Cir. 1980)
    (Commodity Futures Trading Act and regulations adopted pursuant to
    it are not unconstitutionally vague, in part because the terms
    challenged were well understood by those the Act regulated); [Doyle
    v. Secretary of Health and Human Services]{.underline}, 848 F.2d
    296, 301 (1^st^ Cir. 1988) (statutory obligation to provide medical
    care "of a quality which meets professionally recognized standards
    of health care" is not unconstitutionally vague because the phrase
    has a reasonably clear meaning to the medical profession who
    administer the standards); [United States v. Bay State Ambulance and
    Hospital Rental Service, Inc.]{.underline}, 874 F.2d 20, 32 (1^st^
    Cir. 1989) (statute is not unconstitutionally vague, in part because
    courts must analyze vagueness challenges with the knowledge that
    "most statutes must deal with untold and unforeseen variations in
    factual situations"), [citing]{.underline} [Boyce Motor Lines, Inc.
    v. United States]{.underline}, 342 U.S. 337, 340 (1952).

[^9]: ^?^ To the contrary, as the number of complaints continued to
    mount, defendants ultimately did, in fact, modify their designs to
    improve the location of the wheelchair areas. [See]{.underline} Tab
    D (Auditorium 8 in National's complex in Warwick, RI).

[^10]: ^?^ The defendants may seek to distinguish NATO's admissions by
    arguing that the comments were made in the days of sloped floor
    theaters. Not all of them were. [See]{.underline} Gov. Aff. Facts ¶
    41 (summarizing NATO comments made in 1997). In any event, many of
    the wheelchair areas in the listed stadium-style auditoriums are
    likewise located on a sloped or flat floor. If seats in the
    frontmost rows of a 100% sloped floor theater are "inferior" and the
    "last taken" relative to other seats in the auditorium, that
    observation is even more true when the rest of the auditorium offers
    the enhanced sight lines of elevated stadium risers.

[^11]: ^?^ 1997 U.S. Census Bureau Report, *Americans With Disabilities:
    Household Economic Studies*, at 3, Table A (2001).

[^12]: ^?^ The Department of Justice has principal authority for
    administering the provisions of the ADA that govern the design and
    construction of new facilities. The Attorney General has the sole
    power to issue binding regulations to carry out those
    new-construction provisions. 42 U.S.C. 12186(b); [see]{.underline}
    [also]{.underline} 42 U.S.C. 12183(a)(1). And the Department of
    Justice is the only federal agency with authority to bring suit to
    enforce Title III of the ADA, which includes the new-construction
    requirements. 42 U.S.C. 12188(b)(1)(B).

[^13]: ^?^ [See]{.underline} [Paralyzed Veterans of Am. v. D.C. Arena,
    L.P.]{.underline}, 117 F.3d 579, 584-585 (D.C. Cir. 1997)
    (Department's reading of Standard 4.33.3 on the issue of lines of
    sight over standing spectators); [Botosan v. Paul McNally
    Realty]{.underline}, 216 F.3d 827, 833-834 (9th Cir. 2000)
    (Department's interpretation of another Title III regulation).

[^14]: ^?^ Defendants' "among" argument was the interpretation given by
    the Fifth Circuit to Standard 4.33.3\'s "integral part" requirement
    in [Lara v. Cinemark]{.underline}, 207 F.3d 783, 789 (5th Cir. 2000)
    (concluding that Cinemark's theaters satisfied 4.33.3\'s "integral"
    requirement because the wheelchair areas were located either among,
    or adjacent to, seating used by other members of the general
    public).

[^15]: ^?^ [Oregon Paralyzed Veterans of Am. v. Regal Cinemas,
    Inc.]{.underline}, 142 F.Supp.2d 1293 (D. Or. 2001); [United States
    v. Cinemark USA, Inc.]{.underline}, No. 1:99 CV-705 (N.D. Ohio Nov.
    19, 2001).

[^16]: ^?^ In support of its interpretation, the Fifth Circuit relied on
    three inapposite federal regulations. [Id.]{.underline}, citing 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 pertain to topics that have no relevance
    to the ADA, wheelchair seating, or movie theaters. In addition, 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.

[^17]: ^?^ It is true, as the Fifth Circuit noted, 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. 64 Fed. Reg.
    62,278 (Nov. 16, 1999) (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 shed little light on what the Board believes
    is mandated by the current version of the regulation. The 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. 62,278; ADAAG Manual at
    117 (July 1998) (Gov. Doc. App., Ex. 14).

[^18]: ^?^ The complaints also are factually inaccurate. Defendants skew
    their pass/fail statistics by, among other things, erroneously
    including the 121 auditoriums as to which the United States has
    advised defense counsel it is [not]{.underline} pursuing ADA claims.
    The government has noted these inaccuracies in its responses to the
    defendants' respective statements of fact. ([E.g.]{.underline}, Gov.
    Nat. Facts ¶¶ 9, 12, 13).

[^19]: ^?^ The SMPTE Guidelines acknowledge that "\[g\]ood design has
    often been compromised by practical solutions and the belief that
    effective cinemas are not economically feasible." (Govt. Doc. App.,
    Ex. 6 at 1.)

[^20]: ^?^ Defendants mention this fact in a footnote
    ([e.g.]{.underline}, National Br. at 6 n.5), but then proceed to
    disregard it.

[^21]: ^?^ Three of the cases Hoyts cites analyze the language of an
    injunction after it has been issued. [Henrietta D. v.
    Guiliani]{.underline}, 246 F.3d 176, 182 (2d Cir. 2001) (appeals
    court lacked jurisdiction over case after district court ordered
    injunctive relief, but asked a magistrate judge to decide the terms
    of the injunction); [Hughey v. JMS Dev. Corp.]{.underline}, 78 F.3d
    1523, 1531-32 (11^th^ Cir. 1996) (vacating injunction because it was
    not specific and could not be enforced); [Equal Employment
    Opportunity Comm'n v. General Lines, Inc.]{.underline}, 865 F.2d
    1555, 1565 (10^th^ Cir. 1989) (upholding decision not to issue
    injunction because there was no likelihood of future unlawful act).
    In the district court cases to which Hoyts cites, the courts denied
    requests to issue injunctions because the factual record after trial
    did not support the requested relief. [Wales v. Jack M. Berry,
    Inc.]{.underline}, 192 F. Supp.2d 1291, 1312 (M.D. Fla. 2000) (court
    declines request for injunction after trial because there was no
    likelihood of future unlawful acts); [Stephen v. PGA Sheraton
    Resort]{.underline}, 669 F. Supp. 1573, 1584 (S.D. Fla. 1987) (court
    declines request for an "obey the law" injunction after trial, and
    its rulings in favor of the plaintiff are later overturned on
    appeal), [rev'd]{.underline}, 873 F.2d 276 (11^th^ Cir. 1989).