L. IRENE BOWEN, Deputy Chief
Disability Rights Section
Civil Rights Division
| PHYLLIS M. COHEN Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 1425 New York Avenue, N.W. Room 4039 Post Office Box 66738 Washington, D.C. 20035-6738 Telephone: (202) 514-3882 Facsimile: (202) 307-1198 |
WENDY S. TIEN Attorney, Civil Division United States Department of Justice P.O. Box 875 Ben Franklin Station Washington, DC 20044-0874 (202) 305-1479 |
Attorneys for Intervenor
United States of America
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Plaintiffs, UNITED ARTISTS THEATRE Defendant.
CONNIE ARNOLD, et al.,
vs.
CIRCUIT, INC.
Case No. C 93 0079 TEH
UNITED STATES’ OPPOSITION TO
DEFENDANT UNITED ARTISTS THEATRE
CIRCUIT, INC. MOTION TO AMEND THE
AUGUST 14, 1996 SETTLEMENT AND
INJUNCTIVE ORDERS
Date: January 17, 2001
Time: 10:00 a.m.
Place: Courtroom 12
UNITED STATES’ OPPOSITION TO DEFENDANT UNITED ARTISTS THEATRE CIRCUIT,
INC. MOTION TO AMEND THE AUGUST 14, 1996 SETTLEMENT AND INJUNCTIVE ORDERS
The United States hereby files its Opposition to Defendant United Artists Theatre Circuit, Inc.’s ("UATC") Motion to Amend the August 14, 1996 Settlement Agreement and Injunctive Order ("Motion to Amend"). The United States opposes UATC’s request for a blanket "minimum" extension of five years of the deadline to complete its barrier removal obligations under the existing Settlement Agreement and Injunctive Order ("Settlement") for the reasons set forth below. The United States asks that, if the Court grants UATC’s request for an extension of time to complete its barrier removal obligations, it: (1) order UATC to meet interim progress goals to insure that all obligations are met by the end of any extension period; (2) order UATC to update the Court and the Parties regarding its financial condition and progress towards fulfilling its remaining obligations at status hearings at least every six months; and (3) modify the Settlement Agreement and Injunctive Order to specify standards for the placement of wheelchair seating locations in its stadium-style movie theaters.1
I. INTRODUCTION
On October 27, 2000, UATC filed a Motion for a Limited Transfer of Venue ("Motion to Transfer Venue"). UATC stated that, due to its recent bankruptcy, it needed an extension of time to complete its barrier removal obligations under the Settlement Agreement and Injunctive Order. On November 27, 2000, at the hearing on that Motion, and Plaintiffs’ and the Department’s Opposition to UATC’s Motion, Plaintiffs and the Department raised several issues regarding UATC’s compliance with the Settlement Agreement and Injunctive Order. This Court’s Order of December 1, 2000, denying UATC’s Motion, indicated that an "extension hearing will [likely] bring into play a number of issues regarding UATC’s compliance with the Injunctive Order." Order at 4.
II. UATC HAS NOT MADE SUFFICIENT PROGRESS TOWARDS COMPLYING WITH ALL OF ITS OBLIGATIONS UNDER THE SETTLEMENT AGREEMENT AND INJUNCTIVE ORDER TO WARRANT A BLANKET EXTENSION OF TIME
In its Motion to Amend, UATC alleges it has spent over $6 million on "barrier removal for new construction, additions, renovations, concession renovations, specific barrier removal projects, and removal of specific barriers at all theatres..." Motion to Amend at 4 (emphasis added). UATC misleads the Court regarding its compliance with its barrier removal obligations set forth in the Settlement Agreement and Injunctive Order by aggregating its costs from its barrier removal projects required by the Settlement with other expenditures not required by the Settlement Agreement and Injunctive Order, including significant costs associated with its construction of new stadium-style movie theaters and new additions to its theaters.
Further, UATC seems to suggest that its construction of 35 new stadium-style movie theaters somehow has contributed to its compliance with this Court’s Orders to remove barriers to access at its existing, traditional movie theaters.2 Id. Similarly, UATC lists barrier removal projects it completed prior to the entry of the Settlement. In reality, and hidden among other misleading figures, UATC has completed Court-ordered barrier removal projects at only 24 locations in the past five years, or approximately 22% of the locations required to have barriers removed. Id.
UATC acknowledges additional non-compliance with the Settlement Agreement and Injunctive Order by its failure to complete barrier removal modifications to two theaters in Grass Valley, California (ordered to be completed by July 6, 1998 but still not completed). See Second Supplemental Declaration of David Giesler in Support of UATC’s Motion to Transfer Venue at 2; Second Supplemental Declaration of Douglas A. Wolkin in Support of UATC’s Motion to Transfer Venue at 2.
III. UATC’S PLAN FOR REORGANIZATION UNNECESSARILY RESTRICTS UATC’S COMPLIANCE WITH THIS COURT’S ORDER
It appears from UATC’s Motion to Amend that as early as 1997 UATC was experiencing financial problems serious enough to "limit[] UATC’s ability to complete the barrier removal modifications contained in the Injunctive Order," yet UATC did not notify the Department that it was experiencing difficulties in meeting its obligations under the Settlement Agreement and Injunctive Order until January 31, 2000. See Declaration of Phyllis M. Cohen in Support of United States’ Memorandum of Points and Authorities in Opposition to Motion of Defendant United Artist Theatre Circuit, Inc., to Transfer Venue ("U.S. Opposition to Motion to Transfer Venue").
Pursuant to this Court’s Order Granting Injunctive Relief entered August 14, 1996, approving the parties’ Settlement Order, UATC was to complete barrier removal projects at certain of its theaters on or before July 6, 2001. UATC has not completed those obligations during the past five years at approximately 77 of its theaters while at the same time building approximately 35 brand new stadium-style movie theaters. UATC argues inter alia that it needs at least another five years to complete these obligations in order to maintain the support of its creditors for its Joint Plan for Reorganization. UATC further argues that, even if its Joint Plan for Reorganization is confirmed, it will have "significant obligations to creditors under the Plan and be under capital and budgetary restrictions imposed by the Plan." UATC’s Motion to Amend at 2 (need full cite). See also Giesler Declaration ¶¶ 13-14 in Support of UATC’s Motion to Amend.
UATC states that its obligations to its creditors under the Plan, with its "capital and budgetary restrictions", Motion to Amend at 2, will "hamper its ability to make barrier removal modifications." Id. at 3. These financial obligations and restrictions in the Plan were not negotiated with Plaintiffs’ class counsel or the Department, nor were they apparently negotiated with an eye towards fulfilling UATC’s existing legal obligations under the Settlement Agreement and Injunctive Order. Further, UATC states that "[i]nitially, in order to maintain its viability, UATC will have to commit its funds to revenue-generating projects." Motion to Amend at 3. While these "revenue-generating projects" are unspecified, and in spite of its financial difficulties, UATC has indicated to the Department that it intends to renovate many of its existing traditional, sloped floor theaters into stadium-style theaters and possibly build one or more new stadium-style theaters, all within the next several years.3 UATC has cited its building of new stadium-style movie theaters as a contributing factor to its current financial situation.4
UATC has stated that its "goal is to allocate funds to readily achievable barrier removal modification projects while at the same time making capital expenditures to improve the quality of individual theatres in order to retain market share and remain competitive." See UATC’s Motion to Transfer Venue at 11. In spite of this "goal," UATC’s Motion to Amend contains no provision to insure that barrier removal continues at an appropriate pace to guarantee this Court, Plaintiffs and the Department that UATC will complete its barrier removal obligations by the end of any extension of time.5 In the event that UATC is unable to meet any terms of the Settlement and Injunctive Order, the goal of the incorporated dispute resolution procedure is to find a "substitute modification that meets the purposes of this Settlement Agreement." See Injunctive Order ¶ 6.2.1.
The Department requests that, should this Court grant UATC an extension of time, this Court impose a schedule requiring either (1) that UATC complete a certain number of barrier removal projects for each year of any extension, or (2) that of the monies UATC spends on renovations to convert traditional sloped-floor theaters into stadium-style theaters, or on building new stadium-style theaters, it expend a certain percentage on the 77 theaters with remaining barrier removal obligations as a "substitute modification".6 Without such a schedule requiring progress throughout the term of any extension, there is no guarantee that at the end of any extension the parties would not once again be before the Court in the same situation as now, with UATC’s barrier removal obligations still incomplete. Persons with disabilities have been denied access to Defendant’s theaters for years; they should not be asked to continue to wait indefinitely.
IV. FACTUAL CHANGES WARRANT MODIFICATION OF OTHER PROVISIONS
OF THE SETTLEMENT AGREEMENT AND INJUNCTIVE ORDER
The standard for modification of a consent order is a "significant change either in factual conditions or in law." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S. Ct. 748 (1992). UATC argues that its current financial woes justify modification of the Settlement Agreement and Injunctive Order. Conveniently, UATC has twice emphasized that it seeks only to modify the deadline for completion of its barrier removal obligations, ignoring other issues that the parties have been attempting to resolve without this Court’s intervention for at least the last two and one-half years. Motion to Amend at 13; Motion to Transfer Venue at 10. There have been significant other changes impacting on the Settlement Agreement and Injunctive Order, in addition to UATC’s financial situation, which need to be taken into account in any modification of the Settlement Agreement and Injunctive Order. See Bellevue Manor Assoc. v. United States, 165 F.3d 1249, 1256 (9th Cir. 1999) (courts should take all circumstances into account when considering modifying or vacating an injunction or consent decree).
A. UATC HAS NOT ESTABLISHED THAT ITS FINANCIAL CONDITION
WARRANTS DELAY OF ITS BARRIER REMOVAL OBLIGATIONS FOR AN
ADDITIONAL FIVE YEARS OR MORE
UATC argues that because it has filed for chapter 11 bankruptcy it does not have the financial resources to complete its barrier removal obligations by the current deadline. It therefore seeks to delay the deadline. Motion to Amend at 16. The Department believes that, without interim deadlines or goals tied to its expenditures on renovations to stadium-style movie theaters and new construction, UATC will again have made little or no progress towards completion of its barrier removal obligations at the end of an additional five year period. While UATC is correct when it states that the standard for what is "readily achievable" includes consideration of its overall financial resources, Motion to Amend at 13, fn. 9, a review of its bankruptcy filings shows it plans to renovate a number of traditional theaters into stadium-style theaters. If UATC can find the financial resources to convert traditional theaters to stadium-style theaters, it can fund some annual level of progress towards fulfilling its long-standing barrier removal obligations, and it should be required to do so. See Part III supra. UATC has not demonstrated that it is financially unable to complete some level of barrier removal work annually given that it appears to be able to find the financial resources to convert some of its other theaters to stadium-style seating. Rather, these construction plans simply demonstrate that UATC does not wish to do barrier removal work at this time.
B. EVEN IF STADIUM-STYLE THEATERS WERE CONSIDERED "SPECIALTY THEATRES," THEY HAVE BEEN THE ONLY TYPE OF THEATER NEWLY CONSTRUCTED SINCE APPROXIMATELY 1996 BY UATC AND ALL CONVERSIONS OF EXISTING THEATERS HAVE BEEN TO STADIUM-STYLE THEATERS; THEY THUS NEED TO BE ADDRESSED IN THE SETTLEMENT AGREEMENT AND INJUNCTIVE ORDER
Although there is disagreement among the parties as to whether or not stadium-style movie theaters are "specialty theaters" under the Settlement Agreement and Injunctive Order,7 even assuming that stadium-style theaters were "specialty theaters" at the time of entry of the Settlement Agreement and Injunctive Order, the changed circumstances in the motion picture exhibition industry now require the Court to modify the Orders to specify requirements for new or altered stadium-style movie theaters.
1. The Parties Had Little, If Any, Experience With Stadium-Style Movie Theaters at the Time of the Settlement Agreement and Injunctive Order
The first stadium-style movie theaters opened in the United States in 1995 and 1996. Since that time, stadium-style movie theaters have become extremely popular and the dominant movie theater design, resulting in an "explosion in the construction of movie theatres with stadium seating". Motion to Amend at 14. UATC participated in this industry trend.
2. Changed Circumstances in the Movie Theatre Industry in General, and UATC Specifically, Require the Modification of the Settlement Agreement and Injunctive Order to Include Standards for Stadium-Style Movie Theaters
The advent of stadium-style theaters has caused many movie exhibitors, including UATC, to renovate or convert many traditional, sloped-floor theaters into stadium-style theaters or simply shut down many traditional, sloped floor theaters.8
Stadium-style seats are popular because they offer greater visibility and enhanced, unobstructed sightlines to the screen.9 Because most or all seats are elevated anywhere from six to sixteen inches above the row in front of them, there is a greater disparity in sightlines between seats near the front of the auditorium and seats at or near the back of the auditorium than was found in traditional, sloped-floor theaters. Because of this disparity, specific guidelines for the placement of wheelchair seating locations in UATC’s stadium-style movie theaters need to be incorporated into the Settlement Agreement and Injunctive Order to insure that persons with disabilities, especially persons who use wheelchairs, are provided with lines of sight comparable to those for members of the general public and that wheelchair seating locations are an integrated part of the fixed seating plan as required by Section 4.33.3 of the ADA Accessibility Guidelines for Buildings and Facilities (the "Standards"), 28 C.F.R. Part 36 Appendix A. Currently, no provision of the Settlement Agreement and Injunctive Order adequately addresses this issue.
Since at least 1998, the Department has received complaints about UATC’s stadium-style movie theaters. See Appendix B, ¶¶ 2-4. Since that time, the Department and Plaintiffs’ Counsel have had many discussions and exchanged numerous drafts with UATC in an attempt to reach a resolution of the issues relating to wheelchair-seating locations in stadium-style theaters without success.
3. The Department Has Made Clear Its Application of Standard 4.33.3 to Stadium-Style Movie Theaters
In stadium-style theaters, members of the general public can, and do, sit in stadium-style seats. When wheelchair locations are placed only in the non-stadium-style section of the theater, the result is segregation and isolation of persons who use wheelchairs -- a plain violation of the integration requirement set out in Standard 4.33.3. To be "an integrated part of the fixed seating plan," a wheelchair space must not only be located in an auditorium or located next to another seat, it must be part of the auditorium seating where members of the general public routinely sit. Any other interpretation of Standard 4.33.3 would result in the very segregation and inequality that Standard 4.33.3 was intended to prevent. In addition, the plain language of Standard 4.33.3 requires persons who use wheelchairs to be proided "lines of sight comparable to those for members of the general public."
The Court should defer to the Departrment's application of Standard 4.33.3 to stadium-style theaters, as further explained below, and require that UATC's new theaters and conversions be constructed in compliance with it:
1. The required number of wheelchair seating locations in any auditorium must be located in the stadium-style section of the theater.
2. The lines of sight for persons who use wheelchairs must be within the range of viewing angles as those offered to most members of the general public with repect to viewing angles, distance to the screen, obstruction of view, and distortion of images.10
"Lines of sight" and "comparable" are common terms used in everyday speech. United States of America v. Middleton, 231 F.3d. 1207, 1210 (9th Cir. 2000) (in the absence of a definition, a statutory term should be given "its ordinary meaning"); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (courts generally interpret undefined statutory terms by "employing the ordinary, contemporary, and common meaning of the words that Congress used"). Webster’s dictionary defines "line of sight" as "a line from an observer's eye to a distant point toward which he is looking."11 Webster's Ninth New Collegiate Dictionary, 695 (1990). In a movie theater, the observer is the seated patron. The points being observed are the point on the screen where the film is projected. Thus, in a movie theater, lines of sight are lines from the patron’s eye to the different points on the screen where the film is being projected -- the top and bottom of the screen, the left and right sides, and all areas in between.
Webster’s defines the term "comparable" as "capable of or suitable for comparison; equivalent; similar." Webster’s Ninth New Collegiate Dictionary (1990) (emphasis added). Thus, using a plain language approach to interpreting the requirements of Standard 4.33.3 in a movie theater,"comparable" lines of sight are equivalent or similar lines from the patron's eye to the points on the screen where the film is projected.
In Standard 4.33.3, the phrase "members of the general public" refers to persons other than individuals who use wheelchairs and their companions. The term does not refer to any one member of the general public but collectively to most members (i.e., a majority) of the general public.
To assess whether lines of sight are comparable, in designing and constructing movie theaters, experts such as engineers and architects consider such factors as vertical and horizontal viewing angles, distance from the screen, obstruction, and distortion. See The Society of Motion Picture and Television Engineers ("SMPTE") Engineering Guideline Design of Effective Cine Theaters, EG 18-1994, attached as Appendix G. However, the Standards do not establish specific minimum or maximum viewing angles, distance to the screen, obstruction of view, or distortion of images that a movie theater is legally permitted to provide for wheelchair spaces. Instead, the regulation requires that the line of sight be comparable - that necessarily requires comparable viewing angles, comparable distance to the screen, comparable obstruction of view and distortion of images provided for persons who use wheelchairs to those of most members of the general public. For example, although various industry design standards provide that no seat should have a viewing angle to the top of the screen exceeding 30-35 degrees, the Department does not adopt that 30-35 degree measurement as a maximum for wheelchair spaces. To the contrary, under Standard 4.33.3, the only applicable requirement for lines of sight for wheelchair spaces is comparability. Thus, if most members of the general public in a given auditorium have viewing angles to the top of the screen exceeding 30-35 degrees, then persons who use wheelchairs may also be provided viewing angles exceeding 30-35 degrees. Wheelchair spaces have lines of sight comparable to those for members of the general public so long as they provide lines of sight within the range of viewing angles as those offered to most of the general public.
Under the Department’s application of Standard 4.33.3, wheelchair spaces must not be relegated to the worst lines of sight in the house, but neither do they categorically have to be the best. Instead, persons who use wheelchairs should be provided equal access so that their experience equates to the experience provided to members of the general public. In other words, the lines of sight provided for wheelchair locations should not be on the extremes of the range offered to others.
4. Under Well-Established Principles of Administrative Law, the Department of Justice's Interpretation of Its Own Regulation Is Entitled to Substantial Deference.
The Supreme Court has ruled that an agency’s interpretation of its own regulation is controlling unless plainly erroneous or inconsistent with the regulatory language. See Auer v. Robbins, 519 U.S. 452, 461 (1997); Paralyzed Veterans of Am. v. D.C. Arena, L.P., 117 F.3d 579, 584-85 (D.C. Cir. 1997). As the Supreme Court explained, courts "must give substantial deference to an agency’s interpretation of its own regulations. Our task is not to decide which among several competing interpretations best serves the regulatory purpose." Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994) (internal citations omitted); see also Smiley, 517 U.S. 735, 744-45 (1996); Department of Health & Human Servs. v. Chater, 163 F.3d 1129, 1133 (9th Cir. 1998) (same). "[W]here the agency’s interpretation of [its regulation] is at least as plausible as competing ones, there is little, if any, reason not to defer to its construction." Thomas Jefferson Univ., 512 U.S. at 517 (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)); Chater, 163 F.3d at 1135 ("The question is not whether the interpretation represents the best reading of the statute, but whether it represents a reasonable one.").
Here, the Department is the agency charged by statute with responsibility for promulgating regulations interpreting rights and obligations under title III of the ADA, including the architectural standards applicable to new construction and alterations. 42 U.S.C. §§ 12183(a), 12186. Thus, under well-established Supreme Court and Ninth Circuit jurisprudence, the Department's interpretations of its regulation — including its interpretation of Standard 4.33.3 — are controlling unless plainly erroneous or inconsistent with the regulatory language. Thomas Jefferson Univ., 512 U.S. at 512; Smiley, 517 U.S. at 744-45. There is no plain error or inconsistency in this case.
Since UATC has indicated that it intends to renovate a number of its existing sloped-floor theaters into stadium-style theaters, and possibly construct one or more new stadium-style theaters, the United States asks this Court to modify the Settlement Agreement and Injunctive Order to require UATC to provide wheelchair seating locations in the stadium seating portion of its theaters and to provide those wheelchair seating locations with lines of sight comparable to those for members of the general public.
CONCLUSION
For all the foregoing reasons, the United States respectfully requests that if this Court grants UATC’s Motion to Amend the existing Settlement Agreement and Injunctive Order and extends UATC’s deadline for complying with its barrier removal obligations, that the Court further amend the Orders to: (1) require UATC to meet interim progress goals to insure that all barrier removal obligations are met by the end of any extension period; (2) require UATC to update the Court and the Parties regarding its financial condition and progress towards fulfilling its remaining obligations at status hearings at least every six months; and (3) modify the Settlement Agreement and Injunctive Order to specify requirements for the placement of wheelchair seating locations in UATC’s stadium-style movie theaters.
Respectfully submitted,
BILL LANN LEE
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
Disability Rights Section
Dated:
__________________________
PHYLLIS M. COHEN
Trial Attorney
Disability Rights Section
Civil Rights Section
U.S. Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738
Telephone: (202) 514-3882
Facsimile: (202) 307-1198
Counsel for Intervenor
United States of America
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Plaintiffs, UNITED ARTISTS THEATRE Defendant.
CONNIE ARNOLD, et al.,
vs.
CIRCUIT, INC.
Case No. C 93 0079 TEH
[PROPOSED] ORDER
[PROPOSED] ORDER
After consideration of Defendant’s Motion to Amend the August 14, 1996 Settlement Agreement and Injunctive Order and the Oppositions to that Motion, the Court hereby ORDERS:
(1) that the deadline for Defendant’s completion of barrier removal work at its Existing Theatres Outside of California is extended until July 6, 2006;
(2) that during each year of the five year extension, Defendant shall spend at minimum $500,000.00 or 25% of its costs spent that year on altering any of its traditional, sloped floor movie theatres into stadium-style seating, whichever is higher, on its remaining barrier removal work at its Existing Theatres Outside of California;
(3) that Defendant shall appear at a status hearing every six months during the five year extension to update the Court and the Parties on its financial condition and its progress towards fulfilling its remaining barrier removal obligations. Defendant shall provide the Court and the Parties with current financial documents and detailed information regarding its barrier removal work and any alterations of its traditional, sloped floor movie theatres into stadium-style seating and any new construction of stadium-style theaters or additions to existing theatres;
(4) that the Settlement Agreement and Injunctive Order shall be amended to require Defendant to provide all wheelchair seating locations in its newly constructed or altered stadium-style movie theatres within the stadium seating portion of each auditorium and with lines of sight that are comparable to those for members of the general public, taking into account vertical and horizontal viewing angles, distance from the screen, obstruction, and distortion of images.
IT IS SO ORDERED.
DATED:_________________________
_________________________________
THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
CERTIFICATE OF SERVICE
I hereby certify that today I served copies of the foregoing United States’ Opposition to Defendant’s Motion to Amend the August 14, 1996 Settlement Agreement and Injunctive Order upon the following Parties in the above matter via prepaid Federal Express overnight mail:
Peter I. Ostroff, Esquire
Jennifer A. Landau, Esquire
Sidley & Austin
555 West Fifth Street, Suite 4000
Los Angeles, CA 90013-1010
Telephone: 213-896-6000
Facsimile: 213-896-6600
David Seligman
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: 312-861-2000
Facsimile: 312-861-2200
Laurence W. Paradis, Esquire
Disability Rights Advocates
449 15th Street, Suite 303
Oakland, CA 94612
Telephone: 510-451-8644
Facsimile: 510-451-8511
Linda D. Kilb, Esquire
Disability Rights Education and Defense Fund, Inc.
2212 Sixth Street
Berkeley, CA 94710
Telephone: 510-644-0154
Facsimile: 510-841-8645
Neal Wolf, Esquire
Orrick, Herrick & Sutcliffe LLP
400 Sansome Street
San Francisco, CA 94111
Telephone: 415-773-5712
Facsimile: 415-773-5759
I hereby certify that today I served copies of the foregoing United States’ Opposition to Defendant’s Motion to Amend the August 14, 1996 Settlement Agreement and Injunctive Order upon the following Parties in the above matter via United States mail:
Stephen Goldberg
Spierer, Woodward, Denis & Furstman, P.C.
707 Torrance Boulevard, Suite 200
Redondo Beach, CA 90277
Jane Curran Pandell
Randell Wright
Pandell, Novich & Borsuk
Peri Executive Center
2033 North Main Street, Suite 450
Walnut Creek, CA 94596
Thomas Wolfe
Myer, Swanson & Adams, P.C.
1600 Broadway, Suite 1850
Denver, CO 80202
Paula Alicea
Gordon & Rees
275 Battery Street, Suite 2000
San Francisco, CA 94111
Patrick M. Glenn
Hanson, Bridgett, Marcus, Vlahos & Rudy
333 Market Street, Suite 2300
San Francisco, CA 94105
Timothy L. McInerney
McInerney & Dillon, P.C.
One Kaiser Plaza, 18th Floor
Oakland, CA 94612
Lawrence W. Schonbrun
Law Offices of Lawrence W. Schonbrun
86 Eucalyptus Road
Berkeley, CA 94705
Amy B. Vandeveld
3170 West Canyon Avenue
San Diego, CA 92123
Jeffrey D. Branstetter
Law Offices of Jeffrey D. Brandstetter
1 Market Plaza, Steuart Street Tower
13th Floor
San Francisco, CA 94105-1402
L. O’Neal Sutter, P.L.L.C.
310 Natural Resources Drive
Little Rock, AR 72205
DATED: January 5, 2000 __________________________
PHYLLIS M. COHEN
Trial Attorney
Disability Rights Section
Civil Rights Division
U. S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738
(202) 514-3882
Footnotes:
1 "Stadium-style movie theater(s)" or "stadium-style theater(s)"refers to movie theaters or motion picture theaters where some or all of the seating is placed on level tiers with each row/tier elevated above the row/tier immediately ahead. Stadium-style tiers are accessed by stepped, rather than sloped, aisles.
2 Unless a new stadium-style theater serves the same community as one of UATC’s traditional, sloped floor theaters scheduled for barrier removal work, a new stadium-style theater should not be considered part of UATC’s compliance with its barrier removal obligations under the Settlement Agreement and Injunctive Order.
3 "‘The plan is to ... defend our core markets’ in part by refurbishing theaters in important markets, such as by adding stadium seats." The Wall Street Journal, Paul M. Sherer, "Deals & Deal Makers: United Artists Theatre Makes Chapter 11 Filing, Proposing a Plan That Gives Control to Anschutz", September 6, 2000, 2000 WL-WSJ 26608750, attached as Appendix A. See also Disclosure Statement for Plan of Reorganization of United Artists Theatre Company, et al., Article IV, B.2.d.-e. attached to UATC’s Motion to Transfer Venue, Giesler Declaration Exhibit F (implementing "Project Clean-Up, a theatre divestiture program"and "investing capital, in the form of screen expansions and upgrades").
4 Motion to Amend at 4-6. See also CNNfn, "UA Mulls Restructuring", April 14, 2000, attached as Appendix C.
5 UATC alleges that the private plaintiffs and the Department unreasonably withheld approval of its requested extension "unless UATC agreed to certain conditions unrelated to the extension issue." Motion to Amend at 13. In fact, both private plaintiffs and the Department sought inter alia some guarantee from UATC of progress towards or completion of its barrier removal obligations during the term of any extension, such as some minimum monetary expenditures on barrier removal projects annually or the completion of barrier removal work at some minimum number of theaters annually. See Declaration of Phyllis M. Cohen, ¶ 5, attached as Appendix B. UATC offers no such guarantee to this Court in its Motion to Amend.
6 In its Reply in Support of its Motion to Transfer, UATC states that its "determination of which of its remaining theatre leases it intends to assume or reject will depend in part on the cost to complete barrier removal modifications at those leased theatres." Id. at 5, 9. See also Los Angeles Times, Bob Howard, "Valley Business Woes Likely to Curtail New Valley Theaters Construction", November 14, 2000, 2000 WL 25917890, attached as Appendix D (Chapter 11 bankruptcy allows theater operators to cancel any leases they do not want and to keep ones they want); 2000 WL-WSJ 26608750 (UATC’s reorganization filing "allow[s] it[] to free itself from leases on underperforming theaters). Thus, it appears that persons with disabilities, especially persons who use wheelchairs, are likely to have a significantly diminished number of accessible UATC theatres to patronize than anticipated at the time of entry of the Settlement Agreement and Injunctive Order.
7 "Specialty theaters" are defined in the Settlement Agreement and Injunctive Order "those Auditoriums designed and constructed for the purpose of showing an OMNI or an IMAX-type film." See Settlement Order ¶ 5.2. The Department has taken the position that stadium-style movie theaters do not meet the definition of "specialty theaters" as that definition specifies the format of the film, not the seating design.
8 Amy Wallace, "Theaters’ Next Hit May Be Stadium Seating Entertainment", L.A. Times, March 14, 1998, A1, 1998 WL 2407936, attached as Appendix E.
9 Jeff Strickler, "Stadium Seating is Wave of Future", Minneapolis-St. Paul Star Tribune, December 21, 1997, 1997 WL 7594704, pp. 1-2 (the benefits of stadium seating include unobstructed view; looking straight into the picture instead of looking up at the screen; avoiding the need to turn head), attached as Appendix F.
10 The Department’s interpretation of the application of Standard 4.33.3 to stadium-style movie theaters stated above has been articulated numerous times, including in an amicus brief (Lara v. Cinemark USA, No. 97-CV-502 (W.D. Tex.)), in a speech before the movie theater exhibitors’ trade association (Steven John Fellman, "Stadium-Style Seating: The Government’s View", NATO News, July 1998, p. 10), and in pleadings filed in two nationwide lawsuits brought by the Department of Justice (United States v. AMC Entertainment, Inc., American Multi-Cinema, Inc., and Salts, Troutman, & Kaneshiro, Inc., Civil Action No. 99-CV-1034 FMC (Shx) (C.D. Cal. filed Jan. 29, 1999) and United States v. Cinemark USA, Inc., Civil Action No. 1:99-CV-705 (N.D. Ohio filed March 24, 1999). See Appendix B, ¶¶ 6-8.
11 Webster's also offers a second definition of "line of sight" that is plainly not applicable here: "the straight path between a radio or television transmitting antenna and receiving antenna when unobstructed by the horizon." Id.
Last update January 17,2001