IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[                                   ]{.underline}

)

MARC FIEDLER, )

)

Plaintiff, )

) Civil Action 92-0486

) TPJ

v\. )

)

)

AMERICAN MULTI-CINEMA, INC., )

)

Defendant. )

[                                  ]{.underline} )

**MEMORANDUM OF THE UNITED STATES**

**AS [AMICUS CURIAE]{.underline}**

**BACKGROUND**

The plaintiff, Marc Fiedler, is an individual with a mobility impairment
who uses a wheelchair. He filed this action alleging,
[inter]{.underline} [alia]{.underline}, that the Union Station 9
Theaters, located in Washington D.C.\'s Union Station and operated by
the defendant, American Multi-Cinema, Inc. (\"AMC\"), are in violation
of title III of the Americans with Disabilities Act (\"ADA\" or \"the
Act\"), 42 U.S.C. §§ 12181-12189, and the title III regulation (\"the
regulation\"), 28 C.F.R. Pt. 36. Specifically, the plaintiff has alleged
that in none of the nine theaters are wheelchair seating locations
dispersed throughout the seating area. Instead, all wheelchair seating
locations in every theater within the Union Station 9 Theaters are
located in the back row of seats.

Eight of the nine theaters at the Union Station 9 have fewer than 300
seats. The plaintiff appears to have abandoned his argument that
dispersal of wheelchair seating locations is required in these theaters.
The remaining theater, known as the Grand Avenue Theater, has 374 seats,
with two rear locations designated for persons who use wheelchairs. In
this situation, the defendant is required to achieve the level of
accessibility specified in the ADA Standards for Accessible Design
(\"the Standards\"), 28 C.F.R. Pt. 36, App. A, if doing so would be
readily achievable. [See]{.underline} 42 U.S.C. § 12182(b)(2)(A)(iv);\
28 C.F.R. § 36.304(a); 28 C.F.R. § 36.308(a). The plaintiff maintains
that it is readily achievable for AMC to provide four additional
wheelchair seating locations in the fourth and fifth rows of the Grand
Avenue Theater, in order to equal the six such locations that would be
required in a newly constructed assembly hall of a comparable size,
while also achieving at least greater seating dispersal than currently
exists. [See]{.underline} Standards,\
§ 4.1.3(19)(a).

This case is now before the Court on defendant\'s motion for summary
judgment. AMC makes three arguments in support of its motion. First, it
contends that the ADA does not apply to the Grand Avenue Theater because
the facility is located in space leased by AMC from the Executive Branch
of the Federal government. AMC argues that only the Architectural
Barriers Act (\"ABA\"), 42 U.S.C. § 4151 [et]{.underline}
[seq.]{.underline}, and the Uniform Federal Accessibility Standards
(\"UFAS\")[^1] apply to the facility, and that the ABA requires the
plaintiff to file a complaint with the Architectural and Transportation
Barriers Compliance Board (\"ATBCB\" or \"Access Board\") prior to
instituting an action in Federal court.

The defendant next argues that even if the ADA applies to the Grand
Avenue Theater, the Act does not require dispersed wheelchair seating.
AMC interprets the ADA as allowing the virtually every newly constructed
and altered motion picture theater, regardless of its size, to place all
wheelchair seating locations in the back row of seats. Since an existing
facility, like the Grand Avenue Theater, is not required to exceed the
standards for new construction and alterations when undertaking measures
solely for the purpose of removing barriers to access, AMC concludes
that its present practice with respect to wheelchair seating locations
at that theater complies with the ADA.

Finally, the defendant argues that allowing the plaintiff to sit in the
fourth of fifth row of seats at the Grand Avenue Theater would
constitute a \"direct threat\" to the health and safety of other theater
patrons in an emergency. The defendant says that the width of
plaintiff\'s wheelchair and the difficulty he would encounter when
attempting to negotiate the aisle leading

to the back of the theater would impede the movement of other patrons
out of the theater to such an extent that they would face a significant
risk of injury.

The United States has sought to participate in this action as
[amicus]{.underline} [curiae]{.underline}, because this case raises
novel issues concerning both the scope of the ADA\'s coverage and the
meaning of provisions in the Act and in the title III implementing
regulation, which the Department of Justice promulgated and has
responsibility for enforcing. It is the government\'s position that the
ADA applies to public accommodations, like the Grand Avenue Theater,
located in space leased by private entities from the Federal government.
It is also our position that the ADA requires existing motion picture
theaters having more than 300 seats to provide wheelchair seating in
more than one location if this is readily achievable.[^2] Furthermore,
existing motion picture theaters must provide assistance to persons who
wish to sit in wheelchair seating locations that are not served by
\"accessible routes,\" to the extent it is readily achievable to do so.
Persons in wheelchairs seated in such locations do not [per]{.underline}
[se]{.underline} constitute a \"direct threat\" to the health and safety
of other theater patrons in the event of an emergency. The positions
advanced by the defendant in support of its motion for summary judgment
are contrary to law, and the motion should be denied.

**ARGUMENT**

**I. THE ADA APPLIES TO THE GRAND AVENUE THEATER**

> **A. [AMC is a Private Entity Operating a Place of Public
> Accommodation]{.underline}**

As a \"motion picture house,\" the Grand Avenue Theater is a place of
public accommodation within the meaning of title III. 42 U.S.C. §
12181(7)(C); 28 C.F.R. § 36.104. Defendant AMC operates the Grand Avenue
Theater and, accordingly, is subject to Section 302(a) of the ADA which
prohibits discrimination by \"any person\" who owns or operates a place
of public accommodation.[^3]

Despite this unequivocal language of the statute and the regulation, AMC
claims that because it leases the space used for the Union Station 9
Theaters from the Federal government, the Architectural Barriers Act and
UFAS, rather than the ADA and the ADA Standards for Accessible Design,
govern this matter. Therefore, AMC urges, plaintiff has no recourse
under the ADA but rather should have filed a complaint with the Access
Board, which is responsible for enforcing the ABA. Nothing in the ADA,
the Department of Justice\'s implementing regulation, or the legislative
history of the ADA supports defendant\'s theory.

The purpose of section 302(a) and the corresponding section of the
regulation is clear. They establish the two conditions that trigger
liability under the public accommodations provisions of the ADA. Covered
entities must be \"private entities,\" as defined elsewhere in the Act
and the regulation, [see]{.underline} 42 U.S.C. § 12181(6); 28 C.F.R. §
36.104 (definition of \"private entity\"), and must be an owner, tenant,
landlord, or operator of a statutorily defined place of public
accommodation. Neither 42 U.S.C. § 12182(a) nor 28 C.F.R. § 36.201(a)
suggests that a tenant which otherwise meets the definition of a public
accommodation would be excused from compliance with title III because
its landlord is not a private entity. The language of the statute and
the regulation says that either a tenant [or]{.underline} a landlord may
be liable under title III.

AMC is indisputably a \"private entity,\" since it is \"an\[\] entity
other than a public entity (as defined in section 201(1)).\" 42 U.S.C. §
12181(6); 28 C.F.R. § 36.104 (definition of \"private entity\"). It is
also both the lessee and the operator of the Grand Avenue Theater, which
falls squarely within the definition of a place of public accommodation.
[See]{.underline} 42 U.S.C. § 12181(7)(C); 28 C.F.R. § 36.104
(definition of \"place of public accommodation\") (same). The defendant,
therefore, satisfies the statutory jurisdictional requirements and is
subject to title III of the ADA.

To support its argument against coverage, AMC makes two points. First,
it asserts that \"subject\[ing\] AMC as the tenant to the guidelines and
requirements of the ADA would subject \[the landlord,\] an executive
agency of the federal government\[,\] to the ADA \-- a result . . .
contrary to Congressional intent.\" Memorandum of Points and Authorities
in Support of Defendant\'s Motion for Summary Judgment (hereafter \"Def.
Mem.\") at 15. Second, the defendant claims applying the ADA to the
Grand Avenue Theater would create an \"administrative nightmare\" and
would unfairly subject AMC to \"two distinctly different \-- and
oftentimes conflicting \-- regimes regulating building accessibility for
the disabled.\" [Id.]{.underline} at 10. As we demonstrate below,
neither of these points has merit.

> **B. [A Private Entity Operating a Public Accommodation in Space
> Leased from the Federal Government is Subject to Title III of the
> ADA]{.underline}**

While it provides that landlords and tenants may both be liable for
violations in places of public accommodation, title III applies only to
[private]{.underline} entities that are landlords or tenants. The fact
that a landlord may not be a private entity and thus may not be covered
by title III, however, does not affect the title III liability of a
tenant that is a private entity.

In fact, in its Title III Technical Assistance Manual issued pursuant to
statutory directive (42 U.S.C. § 12206(c)(3)), the Department of Justice
answers precisely the question in controversy in this case. The
Technical Assistance Manual contains the following illustration:

> A Federal Executive agency owns a building in which several spaces are
> rented to retail stores. Although Federal executive agencies are not
> covered by the ADA, the private entities that rent and operate the
> retail stores, which are places of public accommodation, are covered
> by title III.

U.S. Department of Justice, Americans with Disabilities Act \-- Title
III Technical Assistance Manual § III-1.2000. (1993 & Supp. 1994). As a
Federal agency\'s interpretation of its own regulations, the Technical
Assistance Manual is entitled to controlling weight. [See]{.underline}
[Thomas Jefferson University v. Shalala]{.underline}, 114 S. Ct. 2381,
2386 (1994); [United States v. Larionoff]{.underline}, 431 U.S. 864,
872-73 (1977); [Udall v. Tallman]{.underline}, 380 U.S. 1, 16-17 (1965);
[cf.]{.underline} [Pinnock v. International House of
Pancakes]{.underline}, 844 F. Supp. 574, 581, 584 (S.D. Cal. 1993)
(relying on TA manual\'s interpretation of Title III), [cert
denied]{.underline}, 114 S. Ct. 2726 (1994); [appeal dismissed as
moot]{.underline}, No. 94-55030 (9th Cir. July 21, 1993); [Noland v.
Wheatley]{.underline}, 835 F. Supp. 476, 483 (N.D. Ill. 1993); [Petersen
v. University of Wisc. Bd. of Regents]{.underline}, 818 F. Supp. 1276,
1278 (W.D. Wis. 1993) (same). Clearly, title III of the ADA covers
AMC\'s operation of the Grand Avenue Theater.

> **C. [The ADA Contemplates that Covered Entities Might Be Subject to
> Other Accessibility Laws]{.underline}**

AMC argues that the ADA should not apply to the Grand\
Avenue Theater because subjecting the theater to two separate sets of
standards for building accessibility would be

administratively burdensome to the Federal government and simply unfair
to AMC. AMC discusses at some length the history of the Federal
government\'s association with Union Station and two prior Access Board
investigations of the Union Station 9 Theaters under the Architectural
Barriers Act. This discussion, however, is irrelevant because the ADA
explicitly contemplates that facilities may be subject to other
accessibility laws and expressly declines to disturb the applicability
of any other statute, except to the extent it provides lesser protection
to persons with disabilities. Section 501(b) of the ADA states in
relevant part:

> . . . Nothing in this Act shall be construed to invalidate or limit
> the remedies, rights, and procedures of any [Federal law]{.underline}
> or law of any State or political subdivision of any State or
> jurisdiction that provides greater or equal protection for the rights
> of individuals with disabilities than are afforded by this Act.

42 U.S.C. § 12201(b) (emphasis added).

Consistent with the language of section 501(b), the Department of
Justice promulgated section 36.103(b) stating that the regulation \"does
not affect the obligations of a recipient of Federal financial
assistance to comply with the requirements of section 504 of the
Rehabilitation Act of 1973 . . . and regulations issued by Federal
agencies implementing section 504.\" 28 C.F.R. § 36.103(b). This
language clearly contemplates situations in which public accommodations
which also receive Federal financial assistance will have both ADA and
section 504 obligations.

Although no other courts have yet addressed the question of whether
title III of the ADA applies to a facility to which the ABA may also
apply, courts have rejected basically the same argument that AMC is
making where the ABA and section 504 were involved. For example, in
[Eastern Paralyzed Veterans Ass\'n v. Sykes]{.underline}, 697 F. Supp.
845 (E.D. Pa. 1990), an organization of persons with disabilities sued
the City of Philadelphia and the Southeastern Pennsylvania
Transportation Authority (\"SEPTA\"), alleging that renovations done to
Philadelphia subway stations violated, [inter]{.underline}
[alia]{.underline}, section 504 and the ABA. The City and SEPTA argued
that only the ABA and section 502 of the Rehabilitation Act[^4] applied
to them, and that the plaintiffs were required to exhaust their
administrative remedies by filing a complaint with the ATBCB.
[Id.]{.underline} The court roundly rejected this argument stating that

> in light of the recognition that section 504 provides a private cause
> of action and the fact that Congress has not empowered the \[ATBCB\]
> to make final determination with regard to compliance with section 504
> . . . regarding architectural . . . barriers confronting handicapped
> individuals, plaintiffs should not be limited to proceeding only under
> the Architectural Barriers Act, section 502 of the Rehabilitation Act
> and the regulations promulgated thereunder.

[Id.]{.underline} at 847 (internal quotation marks and footnote
omitted). [See]{.underline} [also]{.underline} [Disabled in Action of
Pennsylvania v. Pierce]{.underline}, 606 F.Supp. 310, 315 (E.D.Pa. 1985)
(holding that both the ABA and Rehabilitation Act applied to
accessibility of a facility at which Federal agency conducted
activities). The same result should obtain here.

**II. DEFENDANT\'S OBLIGATION TO REMOVE ARCHITECTURAL BARRIERS AT THE
GRAND AVENUE THEATER INCLUDES, IF READILY ACHIEVABLE, ADDING WHEELCHAIR
SEATING AS PROPOSED BY THE PLAINTIFF**

> **A. [An Existing Motion Picture Theater is Required to Disperse
> Wheelchair Seating Locations to the Extent it is Readily Achievable to
> do so, Even if not all Locations can be Located on an \"Accessible
> Route\"]{.underline}**

The ADA\'s most stringent requirements look to the future. Accordingly,
the Act requires a greater level of accessibility for newly constructed
facilities and facilities undergoing alterations than for those already
in existence. Public accommodations located in existing facilities are
required to remove physical barriers to access, but only to the extent
this is \"readily achievable.\" [See]{.underline} 42 U.S.C. §
12182(b)(2)(A)(iv);\
28 C.F.R. § 36.304(a). The Act, therefore, does permit something less
than complete accessibility in existing facilities in some
circumstances, and existing facilities are never required to exceed the
level of accessibility required of facilities that have done
alterations. [See]{.underline} 28 C.F.R. § 36.304(g) (related to the
general obligation of all public accommodations to do barrier removal);
28 C.F.R. § 36.308(b)(3) (related to the obligation of assembly halls
specifically).

As we argue below, an existing motion picture theater having more than
300 seats, like the Grand Avenue Theater, must disperse wheelchair
seating locations to the extent this is readily achievable, even if
putting all such locations on an \"accessible route\" is not. This
result is compelled by the language of the relevant portion of the title
III regulation governing barrier removal in existing assembly areas, and
is consistent with both the requirements for barrier removal generally
and the ADA\'s overall objective of achieving integration of persons
with disabilities into society at large.

> **1. Section 36.308(a) Governing Removal of Barriers in Existing
> Assembly Areas and the General Obligation to do Barrier Removal
> Support the Government\'s Position**

For the Grand Avenue Theater \-- an existing facility \-- title III
requires the removal of architectural barriers to the extent such
removal is readily achievable. The statute and the regulation define
\"readily achievable\" as \"easily accomplishable and able to be carried
out without much difficulty or expense.\" 42 U.S.C. §
12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).[^5]

A specific provision in the title III regulation, 28 C.F.R. § 36.308,
governs an existing theater\'s obligation to provide dispersed
wheelchair seating locations as one form of barrier removal. The
relevant part of section 36.308 states:

36.308 Seating in assembly areas.

> \(a\) Existing facilities. (1) To the extent that it is readily
> achievable, a public accommodation in assembly areas shall\--

\(i\) Provide a reasonable number of wheelchair seating spaces and seats
with removable aisle-side arm rests; and

\(ii\) Locate the wheelchair seating spaces so that they\--

> \(A\) Are dispersed throughout the seating area;

\(B\) Provide lines of sight and choice of admission prices comparable
to those for members of the general public;

\(C\) Adjoin an accessible route that also serves as a means of egress
in case of emergency; and

> \(D\) Permit individuals who use wheelchairs to sit with family
> members or other companions.

28 C.F.R. § 36.308(a). While desirable, it may not always be readily
achievable in existing facilities to remove all barriers so that
wheelchair seating meets all four criteria specified in 28 C.F.R. §
36.308(a)(1)(ii)(A) through (D). In this case, for example, plaintiff
asserts that it would be neither expensive nor difficult for AMC to
remove some fixed seats in the Grand Avenue Theater\'s fourth and fifth
rows where the floor is level and could accommodate wheelchair seating
locations. Plaintiff does not suggest, however, that it would be readily
achievable to provide an \"accessible route\" to all such locations.
[See]{.underline} Memorandum of Points and Authorities in Support of
Plaintiff\'s Opposition to Defendant\'s Motion for Summary Judgment
(hereafter \"Pl. Mem.\") at 18. What the defendant must do is what it
can achieve readily.

Interpreting section 36.308(a)(1) to require partial barrier removal
even though complete removal is not readily achievable, is perfectly
consistent with the general barrier removal obligation in section 36.304
of the regulation.[^6] Section 36.304(c), for example, establishes
priorities for barrier removal, 28 C.F.R. § 36.304(c), recognizing that
\"the resources available for barrier removal may not be adequate to
remove [all]{.underline} existing barriers at any given time.\" 28
C.F.R. Pt. 36, App. B at 610 (emphasis added). Subsection (d)(2)
recognizes exactly the same thing, stating that \"if the measures
required to remove a barrier \[completely\] would not be readily
achievable, a public accommodation may take other readily achievable
measures to remove a barrier that do not fully comply with the specified
requirements.\" 28 C.F.R. § 36.304(d)(2). For example, one acceptable
method of removing a barrier that might fall short of complete removal
is \"providing a ramp with a steeper slope\" than would be under the ADA
Standards for Accessible Design. [Id.]{.underline}

The ADA\'s barrier removal obligation is flexible and reasonable,
promoting the greatest possible access for individuals with disabilities
while recognizing the economic and physical limitations faced in
existing facilities. The obligation to provide a ramp for access to an
existing facility, if readily achievable, is not changed simply because
the ramp\'s slope may be slightly greater than would be permitted in new
construction. The same is true of the obligation to disperse wheelchair
seating locations in existing assembly halls, which is not eliminated
altogether simply because all locations cannot be put on \"accessible
routes.\"

AMC is correct in asserting that some wheelchair users might have some
difficulty, without the assistance of others, negotiating the upward
slope of the aisle in the Grand Avenue Theater in order to exit the
facility. But this is not a basis upon which a theater can justify
keeping all wheelchairs users in the back of the room. Section
302(b)(2)(A)(v) of the ADA and section 36.305(a) of the regulation also
require public accommodations to provide readily achievable alternatives
to barrier removal when removal of a barrier itself is not readily
achievable. [See]{.underline} 42 U.S.C. § 12182(b)(2)(A)(v); 28 C.F.R.\
§ 36.305(a). Thus, for individuals who cannot negotiate the aisle
leading to and from wheelchair seating locations that are not on an
\"accessible route,\" the theater must provide the

assistance of ushers or other theater staff if this is readily
achievable.[^7] The defendant has failed to demonstrate why providing
the minimal level of assistance required to push a wheelchair from the
Grand Avenue Theater\'s fourth or fifth row to the back of the facility
would exceed its ADA obligation. Indeed, in the instant case staff at
the Grand Avenue Theater would apparently not even be required to offer
this minimal level of assistance that the law requires, since the
plaintiff has stated that he would not sit in the Grand Avenue
Theater\'s fourth and fifth rows unaccompanied by an individual who
would be capable of pushing his wheelchair up the theater\'s aisle in
order to exit. [See]{.underline} Pl. Mem. at 30; Part III.B,
[infra]{.underline}.

> **2. The Government\'s Interpretation of Section 36.308(a) is
> Consistent with the ADA\'s Purpose of Promoting Integration of Persons
> with Disabilities**

The text of the ADA and of the title III regulation and its Preamble are
replete with references to the historical segregation of persons with
disabilities and to the central role that the ADA is to play in ensuring
integration. Congress found that passage of the ADA was necessary in
part because \"historically, society has tended to isolate and segregate
individuals with disabilities, and such forms of discrimination . . .
continue to be a serious and pervasive social problem.\" 42 U.S.C.
12101(a)(2). Among the forms of discrimination encountered by persons
with disabilities, Congress found, are \"segregation\[\] and relegation
to lesser services, programs, activities, benefits, jobs, or other
opportunities.\" 42 U.S.C. § 12101(a)(5). Elsewhere, Congress refers to
persons with disabilities as a \"discrete and insular minority,\" 42
U.S.C. § 12101(a)(7), invoking language which has for many years been
used to describe the exclusion of racial and ethnic minorities from full
participation in the political process.

Title III of the ADA and the title III regulation contain a number of
specific provisions aimed at promoting integration. Public
accommodations are required to offer goods and services to individuals
with disabilities \"in the most integrated setting appropriate to the
needs of the individual.\" 42 U.S.C. § 12182(b)(1)(B); 28 C.F.R. §
36.203(a). It is generally unlawful to provide such persons goods and
services that are \"different or separate from th\[ose\] provided to
other individuals.\" 42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. §
36.202(c).

Section 36.308 of the regulation is yet another specific application of
the ADA\'s general principle of integration of persons with
disabilities. The Department of Justice has said that this particular
section of the regulation grew out of a recognition that

> \[i\]ndividuals who use wheelchairs historically have been relegated
> to inferior seating in the back of assembly areas separate from
> accompanying family members and friends. The provisions of 36.308 are
> intended to promote integration and equality in seating.

28 C.F.R. Pt. 36, App. B at 613.

Yet AMC would have this court interpret section 36.308 to reach the
opposite result \-- the relegation of persons who use wheelchairs to the
back of an assembly area. For the many individuals who use wheelchairs
and who can negotiate the aisle of the Grand Avenue Theater and for
those who can do so with that minimal level of assistance the ADA
requires as a readily achievable alternative to barrier removal, the
greatest access possible means not merely the availability of some
wheelchair seating location, but the ability to choose from locations in
different parts of the theater. Providing wheelchair seating locations
in the manner proposed by the plaintiff would advance this objective.

> **B. [Requiring the Defendant to Provide Additional Wheelchair Seating
> Locations at the Grand Avenue Theater Would not Exceed the Standards
> for Accessible Design Applicable to Alterations and New
> Construction]{.underline}**

Contrary to the defendant\'s assertion, requiring the Grand Avenue
theater and other existing motion picture theaters having more than 300
seats to disperse wheelchair seating, if it is readily achievable, does
not exceed the ADA\'s standards for

\"alterations,\" which apply to situations where the facility is not
newly constructed but rather is subjected, as an existing facility, to
renovations or other physical changes that affect or could affect the
usability of its spaces. [See]{.underline} 42 U.S.C. § 183(a)(2); 28
C.F.R. 36.402(a) and (b). Motion picture theaters of the same size as
the Grand Avenue Theater which are \"altered\" in this sense must
generally provide both dispersed wheelchair seating locations and
\"accessible routes\" to and from each such location. The plaintiff\'s
proposal allows some dispersal, but does not require that every
wheelchair seating location be on an \"accessible route.\" Thus, the
defendant is incorrect in arguing that the plaintiff\'s proposal exceeds
what the theater would be required to do if it were undergoing
alterations.

The United States does not believe that the exception in section 4.33.3
of the Standards, allowing \"clustering\" of wheelchair seating
locations in very limited circumstances, applies to single-level
theaters with more than 300 seats. The defendant\'s assumption that the
exception is intended to ensure that persons who use wheelchairs will
not be required to traverse aisle slopes of greater than 1:20 when
exiting assembly areas contradicts both the exception\'s plain language
and other portions of the Standards which contemplate that persons in
wheelchairs can and will traverse aisle slopes of as much as 1:12.[^8]
Even if, however, the section 4.33.3 exception does apply to the Grand
Avenue Theater, we believe that it would not preclude granting the
requested relief. Indeed, the plaintiff\'s plan for adding wheelchair
seating locations is probably the only one that AMC could possibly adopt
consistent with the section 4.33.3 exception.

> **1. The ADA Standards for Alterations Generally Require that
> Wheelchair Seating Locations be Both Dispersed and on \"Accessible
> Routes\"**

AMC is incorrect in arguing that dispersing seats as a barrier removal
action would exceed the requirements for alterations or new construction
applicable to a similar type of space. Alterations to existing
facilities must generally comply with the ADA\'s new construction
standards. [See]{.underline} 28 C.F.R.\
§ 36.402(b)(2); Standards, § 4.1.6(1)(b).[^9] The new construction
provision in the Standards that generally mandates dispersal of
wheelchair seating locations is section 4.33.3.[^10] Section 4.33.3\'s
general rule of dispersal reads as follows:

> **Placement of Wheelchair Locations.** Wheelchair areas shall be an
> integral part of any fixed seating plan and shall be provided so as to
> provide people with physical disabilities a choice of admission prices
> and lines of sight comparable to those for members of the general
> public. 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 exceed 300, wheelchair spaces shall be provided in
> more than one location. Readily removable seats may be installed in
> wheelchair spaces when the spaces are not required to accommodate
> wheelchair users.

Standards, § 4.33.3.

Defendant relies on the exception in section 4.33.3 of the Standards
that says:

> EXCEPTION: Accessible viewing positions may be clustered for
> bleachers, balconies, and other areas having sight lines that require
> slopes of greater than 5 percent. Equivalent accessible viewing
> positions may be located on levels having accessible egress.

Standards, § 4.33.3. Defendant urges that this exception would permit
new construction of a typical, single-level movie theater with all
wheelchair seating located at the back, just as in the existing Grand
Avenue Theater. Defendant asserts that the language \"sight lines that
require slopes of greater than\
5 percent\" refers to the slope of the floor and thus claims that the
exception applies whenever sight lines require that the floor have a
greater than 1:20 slope. [See]{.underline} Def. Mem. at 18-19. The
exception, according to AMC, is intended to ensure that individuals who
use wheelchairs will not have to traverse slopes of greater than 1:20 to
exit. [See]{.underline} [id.]{.underline} at 19; Defendant\'s Reply
Memorandum in Support of Motion for Summary Judgment (hereafter \"Def.
Repl. Mem.\") at 11, 12.

This argument is based on a misunderstanding of the exception and
renders meaningless the general requirement in section 4.33.3 to provide
\"accessible routes\" in assembly areas. Contrary to the defendant\'s
theory, the exception has very limited application to discrete parts of
assembly areas \-- balconies, bleachers, and seating areas having
characteristics similar to them. It does not apply to an assembly area,
such as a typical single-level movie theater, where steep lines of sight
are not required. The rationale for the exception is based on the
typical characteristics of bleachers and balconies. They generally have
steps, not ramped aisles, and sight lines with slopes that will likely
always exceed five percent. Because the sight lines required for
bleachers and balconies usually preclude

ramping as an option, the only means of egress in these seating areas
for persons who use wheelchairs will be on a single level \-- usually
the top or the bottom of the area.

The same rationale has no meaning in a newly constructed motion picture
theater having an aisle with a slope of between 1:20 and 1:12. In such a
theater, seats other than those located in the back row would, by
definition, have an accessible means of egress, since an \"accessible
route\" may have a slope of as much as 1:12.[^11] Applying section
4.33.3\'s exception in the manner proposed by the defendant \-- in
effect, treating all newly constructed, single-level theaters as if they
were balconies \-- would give motion picture theaters the option of
putting all accessible seats in the last row of an auditorium, even
though this practice is unnecessary and would undermine the ADA\'s
objectives of promoting integration of wheelchair seating locations and
of offering to persons seated in these locations a choice of viewing
positions.

Defendant\'s assertion is also mistaken because other portions of the
Standards contemplate that individuals who use wheelchairs
[will]{.underline} be traversing aisles having slopes exceeding 1:20.
Such aisles, according to section 4.8.1 are considered ramps, and must
comply with the provisions of section 4.8. Section 4.8.5 specifically
addresses the use of ramps in assembly areas, providing an exception to
the general requirement to provide handrails on longer ramps where the
ramps are \"adjacent to seating in assembly areas.\" This portion of the
Standards undermines the defendant\'s interpretation of the exception in
section 4.33.3, which begins with the assumption that wheelchair users
will not generally be using aisles with slopes of greater than
1:20.[^12] Because the section 4.33.3 exception allowing clustering does
not apply to a newly constructed or altered one-level movie theater,
requiring AMC to disperse wheelchair seating as part of barrier removal
does not exceed the standards for new construction or alterations.

> **2. Applying the Section 4.33.3 Exception Allowing \"Clustering\" of
> Wheelchair Seating Locations to the Grand Avenue Theater Would not
> Preclude Granting the Relief Requested**

Placing wheelchair seating in rows four and five as plaintiff suggests
would not exceed the standards for alterations and new construction even
assuming the section 4.33.3 exception does apply to the Grand Avenue
Theater. The exception allows either clustering [within]{.underline} a
seating area where sight lines exceed five percent, or alternatively,
provision of \"\[e\]quivalent accessible viewing positions . . . located
on levels having accessible egress.\" Standards, § 4.33.3. Of course, in
motion picture theaters like the Grand Avenue Theater the alternative to
clustering has no meaning at all, since all seats are on a single
level.[^13] Therefore, if the exception applies, the only course of
action it can be read to permit at the Grand Avenue Theater is
clustering of wheelchair seating within the first fourteen rows, where,
the parties have said, sight lines exceed five percent. The exception
certainly does not support AMC\'s current practice of clustering
wheelchair seating locations in areas where sight lines are clearly less
than five percent. The only part of the area in which AMC can
\"cluster\" wheelchair seating locations that also has the level surface
needed for such locations is in the fourth and fifth rows, precisely the
area proposed by the plaintiff.

**III. THE DEFENDANT HAS NOT DEMONSTRATED THAT THE PLAINTIFF WOULD
CONSTITUTE A \"DIRECT THREAT\" TO THE HEALTH AND SAFETY OF OTHER PATRONS
IN THE GRAND AVENUE THEATER IN AN EMERGENCY IF HE PERMITTED TO SIT IN
THE FACILITY\'S FOURTH OR FIFTH ROW**

> **A. [The \"Direct Threat\" Exception to a Public Accommodation\'s
> Obligation to Provide Goods and Services in a Nondiscriminatory Manner
> is an Extremely Narrow One]{.underline}**

The ADA contains a narrow exception to a public accommodation\'s
obligation to provide goods and services to individuals with
disabilities in a nondiscriminatory way. The ADA does \"not require a
public accommodation to permit an individual to participate in or
benefit from its goods \[and\] services . . . when that individual poses
a direct threat to the health or safety of others.\" 42 U.S.C. §
12182(b)(3); 28 C.F.R. § 36.208(a). Section 36.208 says that a \"direct
threat\" is a \"significant risk to the health or safety of others.\" 28
C.F.R. § 36.208(b), which must be determined by

> an individualized assessment, based on reasonable judgment that relies
> on current medical knowledge or on the best available objective
> evidence, to ascertain: the
>
> nature, duration, and severity of the risk; the probability that the
> potential injury will actually occur; and whether reasonable
> modifications of policies, practices, or procedures will mitigate the
> risk.

28 C.F.R. § 36.208(c).

The portion of the Preamble explaining section 36.208 underscores the
exceedingly narrow scope of this exception. The Preamble stresses that
section 36.208 was not intended to suggest that persons with
disabilities pose risks to others, but instead \"establishes a strict
standard that must be met before denying service to an individual with a
disability or excluding that individual from participation.\" 28 C.F.R.
Pt. 36, App. B at 597. The Preamble further cautions that a
determination that a person with a disability constitutes a \"direct
threat\" to the health and safety of others \"may not be based on
generalizations or stereotypes about the effects of a particular
disability.\" [Id.]{.underline} at 597-598.

Two recent district court decisions considering application of the
\"direct threat\" defense to an allegation of employment discrimination
are particularly instructive in the instant case. In [Bombrys v. City of
Toledo]{.underline}, 849 F. Supp. 1210 (N.D. Ohio 1993), the court held
that a city\'s policy of excluding all insulin-dependent diabetics from
its police force violates the ADA. [Id.]{.underline} at 1218.[^14]
[Bombrys]{.underline} rejected any blanket exclusion of persons with a
particular disability from a category of work on the basis that such
individuals pose a \"direct threat\" to the health and safety of others.
[Id.]{.underline} at 1221.[^15] The court said that instead the City of
Toledo must \"evaluate each police officer candidate on a case-by-case
basis and determine what risks that individual presents to
himself/herself and the public.\" [Id.]{.underline}[^16] Relevant to
this evaluation are the measures which individuals with disabilities
themselves take to minimize the risk of harm to others (i.e., in
[Bombrys]{.underline}, whether an insulin-dependent diabetic police
officer monitors his or her blood sugar level and takes insulin
injections at appropriate times).

[Bombrys]{.underline} made two other observations that bear upon the
instant case. First, it found significant the fact that the Toledo
police department had successfully employed insulin-dependent officers
prior to instituting its blanket policy of excluding all such applicants
in 1985. [Id.]{.underline} at 1215. Second, the court noted that some of
the risks arguably posed by officers

having this disability \-- most notably the possibility that an officer
might become incapacitated while on duty \-- could, for any number of
reasons, also be posed by officers who were not insulin-dependent
diabetics. [Id.]{.underline} at 1219.

In [Doe v. District of Columbia]{.underline}, 796 F. Supp. 559 (D.D.C.
1992), the court refused to allow the District of Columbia to exclude a
person who was HIV-positive from a position as a firefighter. With
respect to the relative importance of the first and second prongs of the
\"direct threat\" analysis \-- the nature, duration and severity of the
risk and the probability that harm will occur \-- [Doe]{.underline}
noted that the probability of harm can be so remote as to render the
severity of the harm insignificant as well. Concluding that the
possibility of transmitting the HIV virus in the course of one\'s duty
as a firefighter is remote or theoretical at best, the court rejected
the \"direct threat\" defense under both section 504 of the
Rehabilitation Act and the ADA. [See]{.underline} [id.]{.underline} at
569. The court also considered relevant the fact that other fire
departments throughout the country have employed firefighters who are
HIV-positive without incident. [Id.]{.underline} at 558.

As is demonstrated below, the plaintiff in this case has presented
evidence that the risk of fire in a motion picture theater is
exceedingly small; indeed, he contends, and AMC concedes, that a fire
has not occurred in a motion picture theater in more than fifty years.
He has also shown that he takes steps necessary to avoid the risk of
harm to others by not

sitting in locations on inaccessible routes unless he is accompanied by
someone who can assist him in exiting if necessary. The defendant has
neither conducted the individualized assessment of Mr. Fiedler\'s
abilities necessary to support its claim that he would constitute a
\"direct threat\" to the health and safety of others, nor shown that no
reasonable modification to the Grand Avenue Theater\'s policies,
practices, and procedures could eliminate any \"direct threat\" that the
plaintiff might arguably pose. Summary judgment is clearly inappropriate
under these circumstances.

> **B. [The Existence of Material Facts in Dispute as to Whether the
> Plaintiff Would Constitute a Significant Risk of Harm to the Health
> and Safety of Others Precludes Summary Judgment]{.underline}**

Despite its attempts to characterize it as such, the defendant\'s
\"direct threat\" analysis is not the individualized assessment of the
plaintiff\'s ability to exit the Grand Avenue Theater in an emergency
situation that the ADA requires. It is, instead, merely a series of
generalizations about the capabilities individuals who use
wheelchairs.[^17] In opposition, the plaintiff has presented evidence
with particularized facts sufficient to demonstrate a material issue of
fact that precludes summary judgment.

The plaintiff has presented expert testimony to the effect that a fire
has not occurred in a motion picture theater in more than fifty years,
[see]{.underline} [Id.]{.underline} at 32, and that the tendency of
individuals in emergency situation to assist one another would minimize
the risk of harm in those rare situations that would necessitate
evacuation of a theater. [Id.]{.underline} at 33. He also has submitted
a sworn declaration that he is able to negotiate an aisle having the
slope of the one at the Grand Avenue Theater, and that in any event he
never goes to theaters where wheelchair seating locations are not on an
\"accessible route\" without another individual accompanying him who
would be capable of pushing his wheelchair up a steeply-inclined aisle
in an emergency. [See]{.underline} [id.]{.underline} at 30.

The defendant has neither presented expert testimony to counter the
opinions of plaintiff\'s expert,[^18] nor made any factual

submission to dispute Mr. Fiedler\'s personal declaration. Rather,
defendant urges the court to give more weight to the first prong of the
\"direct threat\" analysis \-- the nature, duration, and severity of the
injury that could result \-- than to the second prong \-- the likelihood
of injury. [See]{.underline} Def. Repl. Mem. at 18. Defendant further
suggests that it cannot rely on an altruistic response from the audience
as a whole. [Id.]{.underline} at 20.

Defendant\'s assertions are not sufficient to warrant summary judgment.
While the defendant is correct that the probability that an injury will
occur is but one factor considered in the \"direct threat\" analysis, it
is equally clear that at some point the probability that harm will occur
becomes so small that the seriousness of the harm which could
potentially result becomes insignificant. [See]{.underline}
[Doe]{.underline}, 796 F. Supp. at 568. The defendant apparently gives
no weight at all to the plaintiff\'s assertions regarding the measures
he takes to minimize the risk of harm to others; yet as discussed in
[Bombrys]{.underline}, [supra]{.underline}, 849 F. Supp. at 1218, this
evidence is significant in an analysis of whether a particular
individual with a disability poses a \"direct threat\" to others.

The plaintiff also points to other AMC theaters which he asserts have
similar configurations to the Grand Avenue Theater, but provide
dispersed wheelchair seating. [See]{.underline} Pl. Mem. at 36, 37. The
current and past practices of both a defendant and other entities
engaged in the same or similar activity are relevant to determining
whether a person with a disability presents a \"direct threat\" in the
particular activity at issue. [See]{.underline} [Bombrys]{.underline},
849\
F. Supp. at 1216; [Doe]{.underline}, 796 F. Supp. at 558.[^19]

Another important challenge that the plaintiff makes to the defendant\'s
\"direct threat\" argument is his assertion that AMC does not have a
policy of restricting the seating of other individuals who may impede
patrons from exiting a theater in the event of an emergency but who do
not use wheelchairs, such as individuals who, due to advanced age or
disability, can walk only slowly and with great difficulty,
[see]{.underline} Pl. Mem. at 36, or persons who use crutches or
walkers. This evidence \-- that a public accommodation treats classes of
individuals differently even though they could potentially present the
same risk to others \-- further undermines the defendant\'s position
that safety concerns require its policy of providing only two wheelchair
seating locations in the back of the Grand Avenue Theater.
[See]{.underline} [Bombrys]{.underline}, 849 F. Supp at 1218.

Even if AMC had alleged facts sufficient to demonstrate that the
plaintiff would pose a \"direct threat\" to the health and safety of
others, which the government believes it has not done, AMC had the
further obligation to demonstrate that the \"direct threat\" could not
be eliminated by a reasonable modification to its policies, practices,
and procedures. For his part, the plaintiff has proposed such a
reasonable modification \-- the use of ushers or other theater staff to
assist individuals in wheelchairs to exit the theater. For the reasons
stated in connection with its discussion of a public accommodation\'s
obligation to provide readily achievable alternatives to barrier
removal, the government believes that affording this level of assistance
to theater patrons who use wheelchairs is also a reasonable
modifications of policies, practices, and procedures that could
eliminate whatever direct threat AMC believes such patrons would pose to
others in an emergency situation.

**CONCLUSION**

For all of the foregoing reasons, the United States respectfully
requests this Court to deny the defendant\'s motion for summary
judgment.

Dated: Washington, D.C.

> September 30, 1994

Respectfully Submitted

ERIC H. HOLDER, Jr. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

for the District Civil Rights Division

of Columbia

By: [                              ]{.underline}

JOHN L. WODATCH, Chief

D.C. Bar #344523

JOAN A. MAGAGNA, Deputy Chief

D.C. Bar #910885

CHRISTOPHER J. KUCZYNSKI, Attorney

Pa. Bar #57111

Public Access Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-1060

[^1]: ^?^ The Architectural Barriers Act of 1968 applies to buildings
    and facilities that are designed, constructed, altered, or leased
    using certain Federal funds. The law applies to buildings for which
    a lease was entered into on or after January 1, 1977, including any
    renewal of a lease entered into before such date which renewal is on
    or after such date. The ABA does not apply to buildings leased by
    the Government for subsidized housing programs. UFAS is the
    accessibility standard applicable to facilities subject to the ABA.

[^2]: ^?^ The ADA requires dispersal even if it is not readily
    achievable to put all locations on fully accessible aisles in the
    theater. In short, those steps that can be taken to remove barriers
    must be taken even if other steps are not readily achievable.

[^3]: ^?^ Section 302(a) provides:

    > . . . No individual with a disability shall be discriminated
    > against on the basis of disability in the full and equal enjoyment
    > of the goods, services, facilities, privileges, advantages, or
    > accommodations of any place of public accommodation by any person
    > who owns, leases (or leases to), or operates a place of public
    > accommodation.

    42 U.S.C. § 12182(a). Section 36.201(a) of the title III regulation
    says virtually the same thing, except that the term \"private
    entity\" is substituted for \"person.\" [See]{.underline} 28 C.F.R.\
    § 36.201(a); 28 C.F.R. Pt. 36, App. B, at 590.

[^4]: ^?^ Section 502 of the Rehabilitation Act, 29 U.S.C. § 792,
    established the ATBCB and sets out its functions.

[^5]: ^?^ The statute and the regulation set forth various factors to
    consider in determining whether a particular action is readily
    achievable. Some of the most important factors include the nature
    and cost of the action needed; the overall financial resources of
    the facility; the relationship of any parent corporation to the
    facility in question and the parent corporation\'s resources;
    legitimate safety requirements that are necessary for safe
    operation, including crime prevention measures; and the impact
    otherwise of the action taken to remove barriers upon the operation
    of the facility in question. [See\
    ]{.underline}42 U.S.C. § 12181(9); 28 C.F.R. § 36.104.

[^6]: ^?^ Moreover, section 36.308 itself contemplates that in some
    situations persons who use wheelchairs will, in existing facilities,
    likely be seated in areas not served by an accessible route.
    Subsection (a)(1) requires an existing assembly hall to provide \"a
    reasonable number of . . . seats with removable aisle-side arm
    rests.\" 28 C.F.R. § 36.308(a)(1). The regulation does not say that
    such seats must be on an \"accessible route,\" even though the
    Preamble clearly indicates that they may be used by persons in
    wheelchairs. [See]{.underline} 28 C.F.R. Pt. 36, App. B at 613.

[^7]: ^?^ The regulation and Preamble provide similar examples of
    readily achievable alternatives to barrier removal, which include,
    providing a store clerk or other personnel to retrieving items from
    shelves that are too high for a person with a disability to reach,
    assuming lowering the shelves is not readily achievable.
    [See]{.underline} 28 C.F.R. § 36.305(b)(2); 28 C.F.R. Pt. 36, App. B
    at 611. The Preamble discussion of section 36.308 regarding
    situations where a person who uses a wheelchair chooses to slide
    from the wheelchair to an existing seat, states that \"the public
    accommodation [shall]{.underline} provide assistance in handling the
    wheelchair of the patron with the disability.\" 28 C.F.R. Pt. 36,
    App. B at 613 (emphasis added).

[^8]: ^?^ The Standards express floor slope in terms of the number of
    inches of run per inch of vertical rise. A slope of 1:20, for
    example, which equals five percent, rises one inch for every twenty
    inches of run. A slope of 1:12, the maximum allowable for an
    accessible route, has a vertical rise of one inch for every twelve
    inches of run.

[^9]: ^?^ \"If existing elements, spaces, or common areas are altered,
    then each such element, space, or area shall comply with the
    applicable provisions of Appendix A to this part.\" 28 C.F.R. §
    36.402(b)(2). Section 4.1.6(1)(b) of the Standards says basically
    the same thing, requiring that altered element, spaces, or areas
    must comply with the applicable provisions of § 4.1.1 through §
    4.1.3 of the Standards, which are the minimum standards for new
    construction.

    The title III regulation, which was issued in accordance with
    statutory directive and was required by law to be consistent with
    the minimum accessibility guidelines and requirements issued by the
    Access Board, [see]{.underline} 42 U.S.C. § 12186(b) and (c),
    incorporates the Standards by reference. [See]{.underline} 28 C.F.R.
    § 36.406(a). The Standards thus have the force of law.

[^10]: ^?^ This conclusion is derived from reading that part of the
    standards for new construction that applies to assembly areas,
    section 4.1.3(19). It says in part that \"\[i\]n places of assembly
    with fixed seating accessible wheelchair locations shall comply with
    4.33.2, 4.33.3, and 4.33.4 . . . .\" Standards, § 4.1.3(19)(a).

[^11]: ^?^ [See]{.underline} Standards, §§ 4.3.5 and 4.8.2. This is not
    explicitly stated, but is derived from reading § 4.3.7 of the
    Standards together which § 4.8.2. Section 4.3.7 says that \"\[a\]n
    accessible route with a running slope greater than 1:20 is a ramp
    and shall comply with 4.8.\" Section 4.8.2 says that \"\[t\]he
    maximum slope of a ramp in new construction shall be 1:12.\" Neither
    party appears to dispute the fact that an \"accessible route\"
    cannot have a slope that exceeds 1:12.

[^12]: ^?^ A second exception to the general requirement of dispersal
    that applies only in the case of alterations to existing assembly
    halls further supports the government\'s position. Section
    4.1.6(3)(f)(i) says that

    > Where it is technically infeasible to disperse accessible seating
    > throughout an altered assembly area, accessible seating areas may
    > be clustered. Each accessible seating area shall have provisions
    > for companion seating and shall be located on an accessible route
    > that also serves as a means of emergency egress.

    Standards, § 4.1.6(3)(f)(i). The concept of \"technical
    infeasibility\" is used in the Standards to denote a physical change
    that has \"little likelihood of being accomplished\" due to a
    facility\'s structure. [See]{.underline} Standards, § 4.1.6(1)(j).
    The concept does not, however, take into account the cost of making
    the physical change.

    In other words, when doing an alteration, an assembly hall may
    cluster wheelchair seating locations only when there is little
    likelihood that all such locations can be put on an accessible
    route. Since, as earlier demonstrated, an \"accessible route\" may
    have a slope of as much as 1:12, section 4.1.6(3)(f)(i) requires
    dispersal if all wheelchair seating locations can be put on routes
    that have slopes of 1:12 or less. The defendant\'s interpretation of
    the section 4.33.3 exception is that in new construction dispersal
    can be required only be required when the wheelchair seating
    locations can be put on routes having slopes of less than 1:20. This
    cannot be correct, because the standards for alterations, which are
    less rigorous than the standards for new construction, require
    dispersal whenever the egress routes are less than 1:12.

[^13]: ^?^ In fact, AMC has neither characterized the last row of seats
    in the Grand Avenue Theater as a separate level, nor defended its
    practice as an alternative to clustering permitted by the last
    sentence of section 4.33.3.

[^14]: ^?^ The court\'s analysis makes reference primarily to the
    provisions in title III and in the title III regulation, even though
    title I and its implementing regulation are clearly the more
    appropriate bases for analysis. The title I definition of \"direct
    threat,\" however, does not differ in any significant way.
    [See]{.underline} 42 U.S.C. § 12111(3).

[^15]: ^?^ [See]{.underline} [also]{.underline} [Anderson v. Little
    League Baseball, Inc.]{.underline} 794 F. Supp. 342, 345 (D. Ariz.
    1992) (rejecting blanket exclusion of any coach with a disability
    from being on the field of play during the course of a game).

[^16]: ^?^ [See]{.underline} [also]{.underline} [Sarsyki v. United
    Parcel Service]{.underline}, 1994 WL 477169 at \*5 (W.D. Okl. Aug.
    31, 1994) In [Sarsyki]{.underline}, a case alleging employment
    discrimination under the ADA, the court found that the defendant had
    not shown that the specific plaintiff, an insulin-dependent
    diabetic, would pose a \"direct threat\" to the health and safety of
    others if permitted to drive a package car weighing 10,000 pounds or
    less.

[^17]: ^?^ Defendant\'s flawed analysis is exemplified by its discussion
    of problems created by the very presence of a wheelchair in the
    aisle of an assembly hall during an emergency evacuation.
    \"Plaintiff would block a far greater portion of the aisle than he
    would on foot,\" the defendant says, \"[even assuming equal ability
    to get up the aisle.]{.underline}\" Def. Mem. at 22 (emphasis
    added). This would be true, of course, on any aisle, regardless of
    its slope. The consequence of accepting the defendant\'s direct
    threat argument is that individuals in wheelchairs will always be
    relegated to the back row of an every existing and newly constructed
    assembly hall, immediately adjacent to a means of egress. The
    \"direct threat\" exception in section 302(b)(3) of the ADA and
    section 36.208 of the regulation was defined narrowly so as to avoid
    precisely this type of result \-- a result which is clearly at odds
    with the ADA\'s requirement of dispersal of wheelchair seating
    locations in newly constructed facilities.

[^18]: ^?^ At one point in its reply memorandum AMC states that it
    \"agrees with the plaintiff\'s assessment that the various
    considerations that have gone into theater design, materials and
    safety and fire-prevention devices, may well mean that there will
    never be an emergency evacuation of the Grand Avenue theater.\" Def.
    Repl. Mem. at 18.

[^19]: ^?^ Indeed, if AMC disperses wheelchair seating in theaters which
    have physical characteristics similar to the Grand Avenue theater,
    its \"direct threat\" argument here is frivolous.