Years ago, during the first George Bush years, I was sitting on an airplane next to a very
talkative fellow who turned out to be a consultant on disability rights. I think I had a very vague notion about the Americans With Disabilities Act which had either just passed or was about to pass. He started talking to me about the ADA, and how there was going to be an explosion in litigation over everything from accessibility in public accommodations to employment, and how it was all going to be absolutely huge for lawyers. I remember his thinking this was a good thing.
And being the terrific businessman that I was, and am, I ignored him and ignored the area and went right ahead with the areas of practice I was already pursuing. Meanwhile, over the ensuing fifteen years, the ADA, combined with a really aggressive litigation effort by a whole lot of people completely changed the landscape when it came to accessibility.
That's a good thing. Not all my clients agree, but I really do believe that if you want to be in business, you need to be prepared to make your business available to all. Still, here's a case that makes me wonder whether there wasn't a more efficient way to get the job done. The case, from the 9th Circuit, is United States v. AMC Entertainment, Inc., (December 5, 2008) ___Fed.3d. ___No. 06-55390. More after the jump.
In 1991, the Attorney General adopted "Standards for Accessible Design," 28 C.F.R. pt. 36, app. A, §4.33.3, requiring that theaters' wheel chair seating with "lines of sight comparable to those for members of the general public." But what did this mean? Hard to say. Despite considerable controversy, the government never got around to issuing clarifying regulations. But at least we had LOTS of litigation to help us figure it out.
The courts all agreed that the language was ambiguous, but that's all they could agree on. As of 2004, (a) The First Circuit, Ninth Circuit and Sixth Circuit agreed that it meant "comparable viewing angles" -- i.e., the theater operator couldn't move the wheelchair seats into the first row where the patrons had to draw their necks back into painful configurations (and presumably sustain nausea from art movies filmed with handheld cameras) in order to watch the movies. The Fifth Circuit held that the provision required an unobstructed view, but not "comparable viewing angles." The D.C. Circuit held that there had to be some seats with unobstructed view. The former Third Circuit Judge Judge Alito (you may have heard of him since then) penned an opinion that §4.33.3 didn't require unobstructed views.
Well before that, however, in the United States District Court for the Central District of California, the Department of Justice sued AMC Theaters for failing to provide disabled patrons with comparable viewing angles in its ninety-six theaters with 1,993 stadium-style auditoria. It then moved for summary judgment on the issue of liability, arguing that the regulation required comparable viewing angles, and although the issue hadn't yet been decided in the Ninth Circuit, the District Court granted the motion in United States v. AMC Entm't, Inc. (C.D. Cal. 2002) 232 F. Supp. 1092.
Thereafter, the Ninth Circuit adopted the "comparable viewing angles" position in Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc. (9th Cir. 2003) 339 F.3d 1126, 1133.
With me so far? OK, so next we get to the remedy. The Department of Justice wants AMC to rebuild all of its theaters, and the District Court says "cool" -- go rebuild them. It issues an injunction to that effect, requiring the nearly 2000 auditoriums to be rebuilt.
The 9th Circuit says ixnay on the emedyray. There's this little thing called the right to due process of law. "The due process clause . . . guarantees individuals the right to fair notice of whether their conduct is prohibited by law." (Quoting Forbes v. Napolitano (9th Cir., 2000) 247 F.3d 903, 1011). For years and years, the courts haven't been able to figure out what this language meant. Indeed, the United States Department of Justice didn't take a position on this until 1998, when it submitted an amicus brief in a private enforcement action advocating the "comparable viewing angle" position. Said the 9th Circuite: you just can't order the theaters to be rebuilt to meet a retroactively developed legal interpretation of an ambiguous statute.
Incidentally, AMC was represented by Brett Burns, of Hunton Williams LLP, not Akin Gump as the slip opinion indicates. I mention this not only because it's a really good result in a complicated case, but because Brett tells me he's one of the few, the loyal, the readers of CalBizLit and he even likes the off-topic posts.
So Brett, for you and all six or seven other CalBizLit regular readers, here's an off-topic musical post to prove that I can post something other than old Jazz and Blues and R & B guys. For your Friday, I'm glad to bring you
Off Topic Post
For your Friday, here are The Killers:
"Not all my clients agree, but I really do believe that if you want to be in business, you need to be prepared to make your business available to all."
Agreed. But the ADA, purely by accident (mainly through the requirements for elevators, as well as 1:12 ramps), has encouraged the construction of single-story, single-purpose, sprawl-ridden commercial developments to the exclusion of more sensible types of buildings. If a large, fixed percentage of your building envelope has to contain elevators and staircases, then the rational developer will either make the building only have one story (cheaper) or build it much larger (to make up for the expense of the second story).
So you end up with either strip malls or the Mills Mall. In either case, requiring that businesses accommodate the disabled (a good thing) leads inexorably to urban design and planning choices that do not accommodate people without cars, or transit-oriented communities in general (a bad thing). But since this is a "law" and YouTube videos blog, and not an urban planning blog, I suppose that's not necessarily under your purview :D
Posted by: jn | December 13, 2008 at 01:22 AM