1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 99-50204

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JOSE G. LARA, E.J. LOZANO, ALFREDO JUAREZ, G. TIM HERVEY, EARL L.

HARBECK, VOLAR CENTER FOR INDEPENDENT LIVING, LUIS ENRIQUE CHEW,

DESERT ADAPT, MYRA MURILLO, MARGARITA LIGHTBOURNE-HARBECK,

Plaintiffs-Appellees,

VERSUS

CINEMARK USA, INC.,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Western District of Texas

___________________________________________________ April 6, 2000

Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant-Appellant Cinemark USA, Inc. challenges the district

court’s determinations that the Americans with Disabilities Act

(“ADA”) requires “stadium-style” movie theaters to offer

wheelchair-bound patrons lines of sight comparable to those enjoyed

by the general public and that Cinemark’s theaters failed to1 Cinemark also argues tha t the district court abused its

discretion by denying Cinemark’s motions to compel the depositions

of DOJ officials, by failing to strike Plaintiffs’ experts, by

permitting certain evidence into the record, and by ordering

burdensome remedial relief. Because we conclude that the district

court erred in interpreting the ADA, we need not address these

issues.

2 provide such sight lines. 1 For the reasons that follow, we hold

that although the ADA does impose such a requirement, the district

court erred in conclu ding that Cinemark failed to meet its

obligations under the Act. Accordingly, we reverse the judgment of

the district court.

I.

Cinemark owns and operates “Tinseltown,” a twenty-screen

theater complex located in El Paso, Texas . All twenty of the

individual theaters in the complex provide “stadium-style” seating.

Stadium-style theaters roughly emulate the seating configuration of

a typical sports stadium, providing stepped-seating that rises at

a slope of well over five percent. This elevated seating

configuration eliminates the line-of-sight problems that typically

occur, for example, when a tall individual sits in front of a

shorter individual.

Tinseltown provides wheel-chair accessible seating in its

theaters, but not as a part of the stadium-seating configuration.

Because stadium seating requires a steep grade, which is virtually

inaccessible to wheelchairs, Tinseltown placed its wheelchair

seating on a flat portion of each theater, located near the front

of the seating area. The wheelchair seating placements are3

surrounded on all sides by general public seating, which, according

to Tinseltown, is used even when other seating is available.

In constructing the Tinseltown theaters, Cinemark submitted

the architectural plans to the Texas Department of Licensing and

Regulation (“TDLR”) and the City of El Paso. The city inspectors

reviewed the design plans, including wheelchair placements, and

granted the t heater conditional approval to go ahead with the

plans. The city submitted this conditional approval to the TDLR.

Cinemark completed construction of the theater in September 1997,

and the city and state inspected the completed facilities. The

city and state inspectors approved the theaters’ seating

configurations, including the wheelchair placements.

Shortly after Tinseltown opened, a group of disabled

individuals a nd two advocacy groups (“Plaintiffs”) brought suit,

alleging that eighteen of Tinseltown’s twenty theaters violated the

ADA. Plaintiffs alleged that in these theaters, Cinemark located

the wheelchair accessible areas too near the screen and too far

below screen-level to provide wheelchair-bound moviegoers with

comfortable viewing. They contend that while Tinseltown’s stadium

seating affords non-disabled patrons improved lines of sight, the

theaters relegate wheelchair-users to inferior seating areas, where

they must uncomfortably crane their necks to watch movies.

Both parties filed motions f or summary judgment and the

district court entered judgment for the Plaintiffs. The court

found that “a person seated in the ‘wheelchair row’ has to lift his

or her eyes and/or crane his or her neck at a very uncomfortable4

angle in order to view the feature on the motion picture screen.”

Therefore, the court concluded that “the wheelchair-bound patron is

denied the full and equal enjoyment of the movie going experience

in these theaters.”

Subsequently, the district court held two remed y hearings.

After considering testimony and argument, the distric t court

entered an “Order Awarding Damages and Granting Injunctive Relief.”

The order required Cinemark to modify eighteen of its theaters by

moving the wheelchair seating location further back from the screen

and higher off the floor, and by lowering the screen by

approximately one foot. The court also granted attorneys fees to

each of the plaintiffs and $100 in damages to each of the

individual wheelchair-bound plaintiffs.

Cinemark’s principal argument on appeal is that the district

court incorrectly in terpreted and applied the ADA and the ADA

Guidelines promulgated pursuant to the Act. We now turn to those

arguments.

II.

We review the district court’s interpretation of the statute

de novo. S ee Woodfield v. Bowman

, 193 F.3d 354, 358 (5 th Cir.

1999).

Title III of the ADA provides that: “No individual shall be

discriminated against on the basis of disability in the full and

equal enjoyment of the goods, servi ces, facilities, privileges,

advantages, or accommodations of any place of public accommodation

b y any person who owns . . . or operates a place of public2 The Department of Justice did not draft the language in the

ADAAG. Rather, Congress has charged the Access Board with

“establish[ing] and maintain[ing] minimum guidelines and

requirements for the standards issued pursuant to” Title III of the

Act. 29 U.S.C. § 792(b). The DOJ adopted these standards in toto

pursuant to Congress’s insistence that the DOJ’s regulations be

“consistent with the minimum guidelines and requirements issued by”

the Board. See 42 U.S.C. § 12186(c).

5 accommodation.” 42 U.S.C. § 12182(a). Congress delegated to the

Department of Justice the responsibility for issuing regulations in

order to enforce this mandate. 42 U.S.C. § 12186(b). Accordingly,

the DOJ, in conjunction with the Architectural and Transportation

Barriers Compliance Board (“Access Board”), issued ADA

Accessability Guidelines (“ADAAG”). 2 At the center of this

litigation is Section 4.33.3 of the ADAAG, which provides that in

assembly areas:

Wheelchairs shall be an integral part of any fixed

s eating plan and shall be provided so as to provide

people with physical disabilities a choice of admission

prices and lines of sight comparable to those for members

of the general public . They shall adjoin an accessible

route that also serves as means of egress in case of

emergency. At least one comp anion fixed seat shall be

provided next to each wheelchair seating area. When the

seating capacity exceeds 300, wheelchair spaces shall be

provided in more than one location. Readily removable

sea ts may be installed in wheelchair spaces when the

spaces are not required to accommodate wheelchair users.

EXCEPTION: Accessible viewing positions may be clustered

for bleachers, balconies, and other areas having sight

lines that require slopes of greater than 5 p ercent.

Equivalent accessible viewing positions may be located on levels having accessible egress.

ADAAG, 28 C.F.R. pt. 36, App. A at 4.33.3 (1999).

The district court held that Cinemark violated section 4.33.3

because its Tinseltown theaters failed to provide wheelchair-bound6

patrons with “lines of sight comparable to those for members of the

general public.” The court noted that while the general public

could choose t o sit in any row, Tinseltown confined wheelchairbound patrons to an area with an “average viewing angle

. . . [of]

above thirty-five degrees, which the Plaintiff’s expert witness has

properly described as ‘well into the discomfort zone.’”

Cinemark argues both that section 4.33.3 does not apply to its

theaters and, alternatively, that it provides wheelchair-users with

comparable lines of sight.

A.

Cinemark first argues that the “lines of sight comparable”

provision of section 4.33.3 only applies to theaters with a

capacity of over 300 seats. Cinemark posi ts that section 4.33.3,

when read as a whole, requires only that th eaters with over 300

seats provide han dicapped patrons with “the choice of admission

prices and lines of s ight comparable to” to those enjoyed by the

general public. Emphasizing the phrase “choice of,” Cinemark

argues that section 4.33.3 simply imposes a dispersal requirement,

requiring larger auditoria to provide wheelchair-users with a

variety of ad mission prices and viewing locations. Cinemark

explains that the DOJ’s goal of dispersal could not be accomplished

by simply requiring a “choice of admissions prices,” because many

large auditoria, such as college sports venues, charge a single

admission price even for different viewing locations. Cinemark

concludes that because the regulation explicitly permits theaters

with seating capacities under 300 to provide wheelchair seating in3 Cinemark also invokes Section 4.33.3's exemption for

“blea chers, balconies, and other areas having sight lines that

require slopes of greater than 5 percent.” ADAAG § 4.33.3. In

these areas, “equivalent accessible viewing positions may be

located on levels having accessible egress” and may be clustered.

Id

. Cinemark notes that its stadium-style seating requires a slope

well in excess of five percent and argues that it is therefore

exempt from section 4.33.3. The 5 percent slope exemption,

however, permits only the clustering of seats. It does not permit

Cinema rk to avoid section 4.33.3's comparable line of sight

requirement.

7 a single area, its theaters are exempt from dispersal, and hence,

the entire regulation. 3

In interpreting a statute or regulation, we first look to the

statute or regulat ion’s plain language. S ee United States v.

Raymer

, 876 F.2d 383, 389 (5 th Cir. 1989). Moreover, we must

consider the regulation as a whole, with the assumption that the

Department intended each of the r egulation’s terms to convey

meaning. U nited States v. Bailey

, 516 U.S. 143, 145 (1995). Based

on such a reading of the regul ation, we cannot agree that the

“lines of sight language” demands nothing more than mere dispersal.

First, the “lines of sight” language is entirely divorced from

the dispersal requirement. The provision requiring multiple

seating locations comes at the end of the regulation and does not

in any way modify the earlier requirements.

Second, the phras e “choice of” modifies only “admissions

prices” and not “lines of sight.” Indeed, the DOJ has consistently

treated “comparable choice o f admission prices” and “comparable

lines of sight” as two separate requirements. S ee, e.g.

, ADAAG, 28

C .F.R. pt. 36, App. B at 650 (1999)(“the final rule adds . . . a

requirement that

. . . wheelchair seating provide lines of sight8

and choice of admission prices comparable to those for the general

public”); 1994 DOJ Technical Assistance Manual (“TAM”) Supp. § III7.5180 (In addition to requiring

. . . dispersion of wheelchair

locations, ADAAG requires that wheelchair locations provide people

with disabilities lines of sight comparable to those for members

of the general public.”). Regardless of whether the DOJ’s

interpretation demands deference, these statements demonstrate

that, sinc e the inception of section 4.33.3, the Department has

consistently treated “cho ice of admissions prices” and “lines of

sight” as two separat e requirements. C f. Paralyzed Veterans of

A merica v. D.C. Arena, L.P.

, 117 F.3d 579, 588 (D.C. Cir. 1997)

(holding that the Department’s TAM is entitled to deference).

Third, Cinemark’s interpretation effectively reads out the

opening clause of the “lines of sight” portion of section 4.33.3,

which explains that “wheelchairs shall be an integral part of any

fixed seating plan and shall be provided as to provide people with

physical disabilities with a cho ice of . . . lines of sight

comparable to those for members of the general public.” (emphasis

added).

Finally, by applying section 4.33.3 o nly in instances where

seating capacity ex ceeds 300, Cinemark would permit smaller

theaters to avoid all of the placement requirements of the section,

including its demand that wheelchair seating “adjoin an accessible

route that also serves as a means of egress in case of emergency.”

Such an interpretation would contravene the ve ry purpose of the9

regulation and of the ADA. Accordingly, we conclude that section

4.33.3 imposes two independent requirements: (1) that theaters with

over three-hundred seats provide wheelchair spaces in more than one

location, and (2) that smaller facilities provide people with

physical disabilities with lines of sight and choice of ticket

prices comparable to those enjoyed by the general public. A ccord

Paralyzed Veterans of America

, 117 F.3d at 583 (holding that lines

of sight requirement is independent of dispersal requirement).

B.

Cinemark next contends that its theaters do afford wheelchairbound moviegoers with “lines of sight comparabl e to those for

members of the general public.” According to Cinemark, the

wheelchair areas are “comparable” because they are located in the

midst of general seating and do not suffer from any obstructions.

The text of section 4.33.3 provides little guidance as to

whether theaters must provide wheelchair-bound moviegoers with

comparable viewing angles or simply unobstructed lines of sight.

An d although a number of courts have considered whether section

4.33.3 requires auditoria to provide wheelchair seating areas with

lines of sigh t that are unobstructed by standing spectators, no

court has considered whether theaters must provide those seating

areas with “viewing angles” that are as comfortable as those

enjoyed by the general public. S ee, e.g.

, Paralyzed Veterans

, 117

F.3d at 583-4 (holding that 4.33.3 does require auditorium-owners

to provid e wheelchair areas with lines of sight unobstructed by

standing spectators); Caruso v. Blockbuster-Sony Music10

Entertainment Ctr. at the Waterfront

, 193 F.3d 730, 736 (3d Cir.

1999)(holding that 4.33.3 does not reach issue of sightlines over

standing spectators); Independent Living Resources v. Oregon Arena

Corp.

, 982 F.Supp. 698, 743 (D. Or. 1997)(holding that 4.33.3 “does

not purport to decide whether lines of sight ov er standing

spectators are –- or are not -– necessary in order to comply with

the ADA”).

Unlike questions of “viewer obstruction,” which the DOJ and

Access Board explicitly considered before issuing section 4.33.3,

see 56 Fed. Reg. 2296, 2314 (1991); 56 Fed. Reg. 35408, 35440

(1991), questions regarding “viewing angle” did not arise until

well after the DOJ promulgated section 4.33.3. Similarly, while

the DOJ’s 1994 Technical Assistance Manual explicitly requires

theaters to provide “lines of sight over spectators who stand,” the

manual does not a ddress problems involving viewing angles. S ee

1994 DOJ TAM Supp. § III-7.5180. Indeed, the Access Board has just

recently proposed modifying section 4.33.3 to require exp licitly

that auditoria provide wheelchair-users with unobstructed lines of

sight. 64 Fed. Reg. 62248, 62277-78 (Nov. 16,1999). As the Access

Board explained:

DO J has asserted in attempting to settle particular

cases that wheelchair seating locations [in stad iumstyle theaters ] must: (1) be placed within the

stadium-style section of the theater . . .; (2)

provide viewing angles that are equivalent or better

than the viewing angles

. . . provided b y 50 percent

of the seats in the auditorium, counting all seats of

any type sold in that auditorium; and (3) provide a

view of the screen, in terms of lack of obstruction

.

. . that is in the top 50 percent of all seats of any

type sold in the auditorium. The Board is considering

whether to include specific requirements in the final11 rule that are consistent with the DOJ’s interpretation

of 4.33.3 to stadium-style movie theaters.

64 Fed. Reg. at 62278. Significantly, the proposed regulations

define “line of sight” problems only in the context of obstructed

views, and recognize that additional language will be necessary to

codify the DOJ’s litigating position. Id

.

Moreover, although it appears that at the time the DOJ adopted

Section 4.33.3, the phrase “lines of sight” lacked a clear meaning

in the ADA context, it is clear that in a number of other contexts,

the phrase meant unobstructed view. S ee, e.g.

, 47 C.F.R. § 73.685

(2000)(FCC regulation requiring that antennae have line of sight,

without obstruction, of the communities that they serve); 46 C.F.R.

§ 13.103 (2000)(defining direct supervision as having line of sight

of the person being supervised); 36 C.F.R. § 2.18 (2000)(forbidding

people under age 16 from operating snowmobiles unless they are

“within line of sight” of a responsible person over age 21).

In light of the lack of any evidence that the Access Board

intended section 4.33.3 to impose a viewing angle requirement, the

Board’s recent statement that it had not yet decided whether to

adopt the DOJ’s litigating position with respect to stadium-style

theaters, and the common meaning of “lines of sight,” we cannot

conclude that the phrase “lines of sight comparable” requires

anything more than that theaters provide wheelchair-bound patrons

with unobstructed views of the screen. To impose a viewing angle

requirement at this juncture would require district courts to

interpret the ADA based upon the subjective and undoubtedly diverse

preferences of disabled moviegoers. Congress granted the DOJ, in12

conjunction w ith the Access Board, the authority to promulgate

regulations under the ADA in order to provide the owners and

operators of places of public accommodation with clear guidelines

for accommodating disabled patrons. S ee generally House Report No.

101-485(I), at 124-25, 139-40 (1990), repri nted in 1990

U.S.C.C.A.N. 407-08, 421-22. Accordingly, in the absence of

specific regulatory guidance, we must hold that section 4.33.3 does

not requir e movie theaters to provide disabled patrons with the

same viewing angles available to the majority of non-disabled

patrons.

Plaintiffs neither contend that Tinseltown’s wheelchairaccessible seating suffers an ob structed view, nor dispute that

Tinsel town located the wheelchair seating amidst general public

seating. As such, the district court erred, as a matter of law, in

finding that Cinemark failed to provide wheelchai r-bound patrons

with lines of sight comparable to those for members of the general

public.

III.

For the foregoing reasons, the judgment of the district court

is REVERSED and judgment is RENDERED for Defendants.