Appendix — Regal Cinemas, Inc. v. Stewmon

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APPENDIX A — PETITION FOR RULEMAKING

DATED AUGUST 24, 1999

THE UNITED STATES DEPARTMENT OF JUSTICE

CIVIL RIGHTS DIVISION

DISABILITY RIGHTS SECTION

In the Matter of

NATIONAL ASSOCIATION OF THEATRE OWNERS,

Petitioner.

Petition for Rulemaking

Re: Stadium-Style Motion Picture Theatres

Docket No.

Pursuant to 5 U.S.C. § 553(e), the National Association

of Theatre Owners (“NATO”) respectfully petitions the

Department of Justice (“Department”) to promulgate a lawful

rule for the placement of wheelchair spaces in “stadium style”

motion picture theatre auditoriums which conforms to the

requirements of Title III of the Americans with Disabilities

Act, 42 U.S.C. §§ 12181, et seq. (“ADA”) . Under 5 U.S.C.

§ 553(b) and (c), issuance of the rule requested herein must

be preceded by, inter alia: (1) adequate notice of the proposed

rule published in the Federal Register and (2) the opportunity

for interested persons, such as NATO, to “participate in the

rule making through submission of written data, views, or

arguments... .”

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Appendix A

Stadium style motion picture theatres are intended to

enhance the movie viewing experience by providing seating

on tiered risers. Stadium-style motion picture theatres are a

recent but especially popular trend because they offer all

patrons an unobstructed view of the screen. In exchange, a

substantial portion, if not all, of the theatre auditorium is

characterized by chairs located on continuous risers that vary

from 2 inches to 18 inches in height, depending on the design

of the theatre. To reach the seats within such an auditorium,

patrons have to climb stairs rather than walk up sloped aisles

typical of older theatres. This situation presents obvious

difficulties for wheelchair locations. In order to fulfill the

objectives of the stadium-style design in a manner consistent

with the requirements of Title III, several factors must be

analyzed and considered. The objectives of the ADA must

be synthesized with the practical and safety limitations

inherent in the nature of this type of seating arrangement.

The rulemaking requested herein is called for because

neither the ADA nor the regulations promulgated thereunder

specify the location in which wheelchair spaces must be

placed in stadium style motion picture theatre auditoriums.

Stadium-style seating was not common in theatres when the

ADA and the regulations were under consideration and

location of wheelchair seating in such theatres was not

addressed by the Congress or any of the parties involved in

the development of ADA regulations. Before the Department

adopts, advocates and seeks to enforce a position regarding

the placement of such wheelchair spaces, it must permit

the issue to be appropriately reviewed, considered, analyzed

and otherwise “vetted” through the notice-and-comment

(eee NTR PRIME SESS Reh ee EASES AS SRN ge SE ae a

pied Dare ee ae ae ge EON tia

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Appendix A

procedures of the Administrative Procedure Act (APA),

$ U.S.C. § 553.

In derogation of this requirement, the Department has

already adopted and is attempting to enforce one or more

rules which require operators of stadium style movie

auditoriums to locate wheelchair spaces in areas that provide

the patron with: 1) a “vertical viewing angle” that is equal to

or less than the median vertical viewing angle for all of the

seats in the auditorium (hereafter, “Median Vertical Viewing

Angle Rule”; 2) a “horizontal viewing angle” that is equal to

or better than the median horizontal viewing angle for all of

the seats in the auditorium (hereafter, “Median Horizontal

Viewing Angle Rule”; or (3) both. Neither the Median

Vertical Viewing Angle Rule nor the Median Horizontal

Viewing Angle Rule is set forth in the ADA or the regulations

duly promulgated thereunder. The Median Vertical Viewing

Angle Rule is based, at least in part, on a purported industry

“guideline” which predated stadium style seating in theatres,

represents lofty objectives rather than actual practice, and

was not subject to the review and scrutiny of the notice and

comment procedures under the APA. Petitioner respectfully

submits it is incumbent upon the Department to void its

improperly adopted Median Vertical Viewing Angle Rule and

Median Horizontal Viewing Angle Rule and to replace them

with a rule lawfully promulgated in compliance with the

APA’s prior-notice-and-comment requirements.

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Appendix A

I. BACKGROUND

Petitioner NATO

Headquartered in North Hollywood, California, NATO

is the national trade organization of the motion picture theatre

industry. NATO is the largest trade association of motion

picture theatres in the world, and its members currently

operate over 19,000 motion picture screens located in all of

the 50 states. A list of current NATO members 1s provided in

Exhibit A hereto. Many NATO members currently operate

stadium style movie theatres and/or are in the process of

constructing such theatres. NATO members have sought in

good faith to comply fully with the requirements of Title III

in designing and constructing the stadium style auditoriums.

However, they have been faced with conclusory, vague,

untested, unfounded, unsubstantiated, confusing and

inconsistent pronouncements, indications and statements of

position by the Department, the courts and various advocacy

rights groups throughout the country regarding the

appropriate placement of wheelchair locations in stadium

style auditoria. Several NATO members currently face actual

or threatened private and government lawsuits and

investigations challenging the wheelchair seating in their

existing or proposed stadium style theatres. This patchwork

of enforcement efforts is leading to an array of inconsistent

interpretations and pronouncements by courts regarding the

application of Title IIJ to stadium style seating arrangements.

NATO has standing to pursue this Petition on behalf of

its members because (1) its members would otherwise have

sanding in their own right; (2) the interests which NATO

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Appendix A

seeks to protect are germane to the purpose of NATO; and

(3) the Department can provide the relief requested by NATO

without requiring the participation of individual members

of NATO.

Promulgation of the ADAAG

In enacting Title III of the ADA, Congress specifically

designated the Attorney General and the United States

Architectural and Transportation Barriers Compliance Board

(“Access Board”)! to promulgate the standards to be used

in administering and enforcing Title III. Section 12186(b),

42 U.S.C., provides that “[nJot later than 1 year after

July 26, 1990, the Attorney General shall issue regulations

in an accessible format to carry out the provisions of”

Title III, including “standards applicable to [public

accommodation] facilities. . . ..’ Congress also mandated that

the Access Board issue minimum guidelines to implement

Title III of the ADA. 42 U.S.C. § 12204.

In accordance with the ADA, the Access Board issued

the Americans with Disabilities Act Accessibility Guidelines

(“ADAAG”). See 56 Fed. Reg. 35,408 (1991) (codified at

36 C.F.R. pt. 1191 (App. A). The Access Board promulgated

its guidelines in accordance with APA notice-and-comment

procedures. On the same day that the ADAAG was issued,

1. Originally, Congress created the Access Board to insure

compliance with the Architectural Barriers Act of 1968, 42 U.S.C.

§ 4151, which governed accessibility to federally funded buildings.

See 29 U.S.C. § 792. In 1992, Congress amended 29 U.S.C. § 792 to

include an additional function for the Access Board — develop advisory

guidelines for Titles II and III of the ADA. See 29 U.S.C. § 792(b)(2).

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Appendix A

the Department adopted the ADAAG as its own regulations,

entitled the Justice Department’s Standards for Accessible

Design (“JDSAD”) (codified at 28 C.F.R. pt. 36 App. A).

ADAAG Standard 4.33.3

The ADAAG predated the advent of stadium style movie

theatres. Accordingly, it contains no specific rule or guidance

as to the location of wheelchair spaces in such theatres. Under

“Standard 4.33.3” of the ADAAG in auditoriums of less than

301 seats, or auditoriums of any size having sight lines that

require slopes of greater than 5 percent, wheelchair seating

may be “clustered” in a single location of the theatre.

28 C.F.R. Ch. I, Pt. 36, App. A, § 4.33.3. Where a single “cluster”

of wheelchair seats is permitted, the regulations do not specify

a precise location where builders must place the single cluster

of seats, other than that they must adjoin an accessible route

of egress. Standard 4.33.3 states, in pertinent part:

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... .

When the seating capacity exceeds 300,

wheelchair spaces shall be provided in more than

one location.

PDS 404

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Appendix A

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.

When Standard 4.33.3 was adopted motion picture

theatres had sloped floors, one ticket price, and there were

no reserved seats. In movie auditoria of under 301 seats,

wheelchair locations could be placed in one location.

The industry believed that the term “lines of sight” related

to the ability of a patron to see over the head of the person in

the rows in front.

Standard 4.33.3, like the ADA itself, makes no reference

to a “vertical viewing angle” or a “horizontal viewing angle.”

It certainly does not purport to prescribe the maximum

vertical or horizontal viewing angle that may be offered to

wheelchair users in movie theatres. There also is no

requirement set forth in Standard 4.33.3 that wheelchair

locations receive a vertical or horizontal viewing angle that

is equal to or less than the “median” viewing angle for all

patrons in the auditorium. Nor is there evidence that either

the Department or the Access Board intended that Standard

4.33.3 impose a maximum vertical or horizonta! viewing

angle requirement for movie theatres. Indeed, the requirement

that wheelchair users receive “a choice of admission prices

and lines of sight comparable to those for members of the

general public” appears to have been aimed not at small

movie theatres, but rather at large venues such as sports

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Appendix A

stadiums and concert halls which have multiple ticket prices

and reserved seats.”

The Median Vertical Viewing Angle Rule

Prior to the Summer of 1998, the Department had

nterpreted Section 4.33.3 in the context of movie theatres

but had never required wheelchair seating positions to be

located in a particular location of an auditorium to comply

with the law. To the contrary, the Department had assured

theatre owners and industry groups that, in theatres of

300 seats or less, wheelchair seating areas could permissibly

be placed anywhere in the theatre under Section 4.33.3.

However, in July 1998, the Department filed an amicus

curaie brief in an ADA action pending in El Paso, Texas

which reflected an entirely new position by the Department

that cannot be found in the language of the ADA or Standard

4.33.3. In its brief in Lara v. Cinemark USA, Inc., No. EP-97-

CA-502-H (W.D. Tex. July 20, 1998), the Department

pronounced that “in stadium style seating, wheelchair

locations must be provided lines of sight in the stadium style

seats within the range of viewing angles as those offered to

mest of the general public in the stadium style seats, adjusted

for seat tilt.” Brief, at 8 (emphasis added). The Department

subsequently clarified its position to require, at a minimum,

2. For example, if a baseball park offers seats (1) behind home

plate, (2) behind first base, (3) behind third base, (4) at a “club”

level and (5) around the outfield, the requirement that wheelchair

receive “a choice of admission prices and lines of sight comparable

to those for members of the general public” insures that the wheelchair

users will be offered seating in multiple locations.

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Appendix A

that wheelchair placements in stadium style theatres provide

such viewers a vertical “viewing angle” to the screen that is

at least as good as the “median” viewing angles in the auditorium.

The Department bases its Median Vertical Viewing Angle

Rule at least in part, on a purported industry “guideline”

which was not prepared with stadium style seating in mind,

and which has never been subjected to analysis or scrutiny

under the APA. In its amicus brief in Lara, the Department

specifically pointed to the “SMPTE Engineering Guideline

Design of Effective Cine Theaters, EG 18-1994” (“SMPTE

Guideline”). The SMPTE Guideline was initially issued by

the Society of Motion Picture and Television Engineers

(“SMPTE”) in the 1970s, well before the first stadium style

motion picture theatre was in operation. Brief, at 3-4. In its

brief, the Department cited, inter alia, the following as

conclusions in the SEMPTE Guideline:

e ‘physical discomfort occurs when the vertical viewing

angle to the top of the screen exceeds +35 degrees”;

e “[p]hysical discomfort also occurs when the

horizontal line of sight exceeds +15 degrees in either

direction”;

e “the ‘optimum viewing zone’ is from horizontal at

eye level (0 degrees) to -30 degrees”; and

e “to avoid excessive vertical viewing angles and

to bring the vertical angle closer to zero degrees,

seat backs should be tilted the same amount, 12 to

15 degrees.”

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Appendix A

These “conclusions” were never subjected to the prior-notice-

and-comment procedures of the APA.

The Median “Horizontal Viewing Angle” Rule

In addition to applying the Median Vertical Viewing

Angle rule, the Department also has taken the position that

wheelchair placements in stadium style theatres must provide

a “horizontal viewing angle” which is equal to or better than

the median “horizontal viewing angle” in the auditorium.

Petitioner is not aware of any purported basis upon which

the Department has relied in developing and applying this

Rule.

The ADAAG Manual

In May of this year, the Access Board issued an “ADAAG

Manual” which it refers to as a “guide to the Americans with

Disabilities Act Accessibility Guidelines.” The ADAAG

Manual states that in construing and applying Section 4.33.3,

“(slight lines are calculated according to certain industry

conventions and practices.” Manual, at 117. Moreover, the

Manual contains a diagram of four recommended audience

wheelchair placements for a public auditorium. Manual,

at 118. Only one of the four placements recommended by

the Access Board would comply with the Department’s

Median Vertical Viewing Angle Rule or Median Horizontal

Viewing Angle Rule.

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Appendix A

Il. ANOTICE AND COMMENT RULEMAKING

IS REQUIRED

The Department’s Median Vertical Viewing Angle Rule

and Median Horizontal Viewing Angle Rule constitute

“rules” under the APA; therefore, prior notice and an

opportunity for comment by the public were a prerequisite

to the adoption of each such rule. Under the APA, a “rule” is

defined as “the whole or a part of an agency statement of

general or particular applicability and future effect designed

to implement, interpret, or prescribe law or policy... .”

5 U.S.C. § 551(4). A rule promulgated by an agency that is

subject to the APA is invalid unless the agency first issues a

public notice of proposed rulemaking which describes the

substance of the proposed rule, and gives the public the

opportunity to submit written comments; and if after

receiving the comments it decides to promulgate the rule the

agency must set forth the basis and purpose of the rule in a

public statement. 5 U.S.C.§§ 553(b), (c). Public participation

in rule-making is necessary to “allow the agency to benefit

from the experience and input of the parties,” National Tour

Brokers Ass'n v. United States, 591 F.2d 896, 902 (D.C. Cir.

1978); and to “enable[] the agency. . . to educate itself before

establishing rules and procedures which have a substantial

impact on those regulated,” Texaco, Inc. v. FPC, 412 F.2d

740, 744 (3rd Cir. 1969).

Although the APA’s procedural requirements apply to

“legislative” (or “substantive”) rules and not to “interpretive

rules,” the determination of the maximum allowable vertical

viewing angle for wheelchair placements in movie theatres

certainly qualifies as a “legislative” rule. In its recent opinion

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Appendix A

in Caruso v. Blockbuster-Sony, supra, the Third Circuit found

that the Department had improperly engaged in legislative

rulemaking in connection with its efforts to apply Standard

4.33.3 to the issue of whether wheelchair users are entitled

to an unobstructed view over standing spectators. The court

emphasized that if the Department believed “that the

ADA should be interpreted to require that wheelchair users

be given lines of sight equivalent to standing patrons. . . the

[Department] can accomplish this end through notice-and-

comment rulemaking.” 1999 WL 185040 *9. As the trial court

in Caruso explained:

Congress has elected to pass a very general statute

and leave it to the regulatory process to fill in

the necessary details. Constructing a stadium

or arena is an expensive, complex affair. If the

law is to impose requirements to assist those with

disabilities and to impose an obligation to make

expensive retrofits if that law is violated, it is

essential that those requirements be clearly

articulated in the regulations. Compliance with

APA rulemaking insures, hopefully at least, that

all points of view are heard and that the resulting

regulation provides concrete guidance to those

embarking on such a Project.’

Stadium style seating movie theatres are also expensive and

complex facilities and it is essential that all requirements for

the construction of such facilities “be clearly articulated in

3. Caruso v. Blockbuster-Sony Music Entertainment Centre, 968

F. Supp. 210, 216 (D.N.J. 1997), aff'd in part, rev'd in part, _ F.3d

_ , 1999 W 185040 (3rd Cir. April 6, 1999).

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Appendix A

. .. regulations” duly promulgated under the APA in a manner

that insures that “all points of view are heard... .” See also

Independent Living Resources, supra, 982 F. Supp. at 736

n. 55 (“the notice and comment requirement would be

eviscerated if the [Department of Justice] could create new

obligations simply by announcing a new interpretation of an

existing regulation’’).

That prescription of a specific vertical or horizontal

viewing angle for wheelchair placements constitutes

legislative rulemaking is demonstrated by the opinion by

Judge Posner in Hoctor v. United States Department of

Agriculture, 82 F.3d 165 (7th Cir. 1996). In Hoctor the

Department of Agriculture was tasked with enforcing the

Animal Welfare Act, 7 U.S.C §§ 2131 et seq., with respect

to the keeping of exotic animals. The Act was silent as to the

height requirement for fences used to house such animals.

Following notice and comment, the Department promulgated

a regulation entitled “structural strength.” This regulation

required facilities housing such animals to be “constructed

of such material and of such strength as appropriate for the

animals involved” and to be “structurally sound.” 9 C.F.R.

§ 3.125(a). However, as with the statute, the regulation

contained no express requirement that perimeter fences be a

particular height. Nevertheless, the Department issued and

enforced an internal memorandum which provided that all

dangerous animals must be inside a perimeter fence at least

8 feet high.

The Seventh Circuit held that the “internal memo-

randum” constituted a legislative rule which required notice

and comment to be effective. The court stated: “Even if...

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Appendix A

the eight-foot rule is consistent with, even in some sense

authorized by, the structural-strength regulation,

it would not necessarily follow that it is an interpretive rule.

Id. at 170. The court explained that in order to be an

interpretive rule, a rule must be “derived from the regulation

by a process reasonably described as interpretation.” Jd.

The court classified the 8-foot rule as “arbitrary” (not in the

“arbitrary or capricious” sense) but because it represented

“an arbitrary choice among methods of implementation.”

The court emphasized that:

A rule that turns on a number is likely to be

arbitrary in this sense. There isno way to reason

an eight-foot perimeter-fence rule as opposed to

a seven-and-a-half foot fence or nine-foot fence

or a ten-foot fence. None of these candidates for

a rule is uniquely appropriate to, and in that sense

derivable from, the duty of secure containment.

This point becomes even clearer if we note that

the eight-foot rule actually has another component

— the fence must be at least three feet from any

animal’s pen. Why three feet? Why not four?

Or two?

Id. (emphasis added). The court further stated that “[w]hen

agencies base rules on arbitrary choices they are legislating,

and so these rules are legislative or substantive and require

notice and comment rulemaking, a procedure that is

analogous to the procedure employed by legislatures in

making statutes.” Jd. at 170-71. The court also stated that

the rule was “arbitrary in the sense that it could well be

different without significant impairment of any regulatory

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purpose.” /d. at 171; see also Carlisle Tire & Rubber Co. v.

United States, 634 F. Supp. 419, 423 (CIT 1986) (Department

of Commerce engaged in legislative rulemaking by adopting

a position that antidumping margins of 0.5% or less were

“de minimis’).

Judge Posner’s opinion in Hoctor succinctly demonstrates

why the Department’s Median Vertical Viewing Angle Rule

and Median Horizontal Viewing Angle Rule constitute

legislative rulemaking. To require movie theatres to provide

wheelchair placements with viewing angles the same or

less than the median vertical or horizontal viewing angle

represents an arbitrary choice among methods of

implementing the “lines of sight comparable” requirement

of Standard 4.33.3. As with the 8-foot perimeter rule in

Hoctor, the Department’s rule is “arbitrary in the sense that

it could well be different without significant impairment of

any regulatory purpose.” Why is the rule based on the

“median” average rather than the “mean” average? How does

one properly measure vertical and horizontal viewing angles

in the context of a motion picture theatre? There is a

significant question as to whether a vertical and horizontal

viewing angle test, as defined by the Department of Justice,

is the appropriate way to measure line of sight in a movie

theatre. In short, there are several factors to consider in

determining whether a particular “line of sight” is

“comparable.” It was clearly arbitrary for the Department to

determine that comparability of lines of sight must be

achieved through a vertical and/or horizontal viewing angle

based on the median viewing angle.

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In Hoctor, the Agriculture Department’s enforcement of

an internal policy adopted without notice and comment

caused “some unknown fraction” of the thousands of animal

dealers in the U.S. to “face the prospect of having to tear

down their existing fences and build new, higher ones at great

cost.” 82 F.3d at 171. The agency was admonished to “listen

to” the concerns of such dealers “before settling on a final

rule” which imposed a perimeter fence height requirement.

Similarly here, there are hundreds of movie theatres across

the country whose operators now face the prospect of having

to redesign existing theatres at great cost. The Department

should not be permitted to impose a specific vertical or

horizontal viewing angle requirement for wheelchair

placements in movie theatres until after the Department has

“listened to” the concerns of such operators.

This is especially true given that the Department’s new

“Median Vertical Viewing Angle Rule” and “Median

Horizontal Viewing Angle Rule” are inconsistent with the

Department’s prior pronouncements. Until its amicus brief

in Lara, the Department had maintained that wheelchair

seating in theatres of 301 seats or less could be anywhere in

the general seating requirement of the auditorium, as long as

the patron’s view was not obstructed. The Department also

had taken the position that wheelchair locations near

entranceways were ideal, especially in auditoriums of any

size having sight lines that require slopes of greater than

5 percent, as provided in the plain language of section 4.33.3.

Prior notice and comment is especially necessary here

because of the Department’s reliance upon the SMPTE

Guideline for its position that vertical viewing angles should

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Appendix A

not exceed 35 degree. The SMPTE Guideline does not purport

to portray custom in the movie theatre industry - but rather,

a lofty objective. (“Good design has often been compromised

by practical solutions and the belief that effective cinemas

are not economically feasible’). Moreover, such a study

should be subjected to the scrutiny of the notice and comment

process.

“An agency’s denial of a fair opportunity to comment

on a key study may fatally taint the agency’s decisional

process.” National Association of Regulatory Utility

Commissioners v. FERC, 737 F.2d 1005 (1984), cert. denied,

469 U.S. 1227 (1985) (agency’s denial of fair opportunity to

comment on a key staff study may fatally taint the agency’s

decisional process); United States Lines, Inc. v. FMC, 584

F.2d 519, 534 (D.C. Cir. 1978) (“we have required informa-

tion in agency files or reports identified by the agency as

relevant to the proceeding to be disclosed to the parties for

adversarial comment... . Such requirements. . . ensure that

parties to agency proceedings are afforded the opportunities

guaranteed by statute meaningfully to participate in those

proceedings....”) . In Jdaho Farm Bureau, Federation v.

Babbitt, 58 F.3d 1392, 1403-04 (9th Cir. 1995), the Fish and

Wildlife Service violated the APA by relying extensively on

a provisional report not subjected to public notice and

comment. The court stressed that the “necessity for notice

and opportunity to comment on the USGS study was greatly

heightened because [the agency] relied largely on the USGS

study to support its final rule,” and that “[o]pportunity for

public comment is particularly crucial when the accuracy of

important material in the record is in question.” /d. at 1403.

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Finally, the need for a formal rulemaking is further

mandated by the fact that the Department’s Median Vertical

Viewing Angle Rule and Median Horizontal Viewing Angle

Rule are contrary to the Access Board’s “ADAAG Manual.”

Although the Manual states that “industry conventions and

practices” should be looked to in complying with Section

4.33.3, there is no indication that the Department has done

so in adopting and enforcing its rules. In addition, the Manual

recommends wheelchair placements for public auditoriums

which almost uniformly would fail to meet the requirements

of the Department’s rules. Such inconsistencies with the

pronouncements of the Access Board further demonstrate

why the Department needs to subject its rules for wheelchair

placements in stadium style movie theatres to the notice and

comment procedures mandated by the APA.

II. CONCLUSION

For the reasons set forth above, Petitioner NATO,

on behalf of its members, respectfully requests that the

Department replace its improperly adopted Median Vertical

Viewing Angle Rule and Median Horizontal Viewing Angle

Rule with a new, lawful rule regarding the placement of

wheelchair spaces in stadium style seating auditoriums

promulgated in compliance with the prior-notice-and-

comment requirements of the APA. Attached hereto as

Exhibit B, is a proposed rule that NATO believes effectively

meets the requirements of the ADA.

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Appendix A

Respectfully submitted,

GALLAND, KHARASCH, GREENBERG

FELLMAN AND SWIRSKY, P.C.

s/ Steven John Fellman

M. Roy Goldberg

Canal Square

1054 Thirty-First Street, N.W., Suite 200

Washington, D.C. 20007-4492

(202) 342-5200

(202) 342-5219/Fax

Attorneys for Petitioner National

Association of Theatre Owners

Dated: August 24, 1999

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APPENDIX B — LETTER FROM BILL LANN LEE

TO STEVEN JOHN FELLMAN, ESQ.

DATED APRIL 3, 2000

U. S. Department of justice

Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

Steven John Fellman, Esq.

M. Roy Goldberg, Esq.

Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C.

Canal Square

1054 Thirty-First Street, N.W.

Washington, D.C. 20007-4492

Dear Sirs:

The Attorney General has asked me to respond to your

petition on behalf of the National Association of Theatre

Owners (NATO). NATO is requesting that the Department

of Justice promulgate a rule for the placement of wheelchair

spaces in “stadium style” motion picture theater auditoriums.

In support of its petition, NATO provided a lengthy

memorandum that reiterates the arguments now being made

by individual NATO members who are involved in litigation

with the Department of Justice. The Department’s response

to these arguments will be made in the appropriate judicial

forums.

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Appendix B

However, regardless of the outcome of the pending

litigation, the Department is planning to review and amend

the Americans with Disabilities Act (ADA) regulations in

the next year. As you know, the Architectural and

Transportation Barriers Compliance Board (Access Board)

has completed a comprehensive review of its ADA

Accessibility Guidelines (ADAAG) and has published a

Notice of Proposed Rulemaking (NPRM) to update and

amend the guidelines. Section 306 of the ADA requires the

Attorney General to promulgate regulations that are

consistent with the Access Board’s minimum guidelines.

Consequently, the Department of Justice will issue a NPRM

this year proposing to update its ADA Standards for

Accessible Design in order to maintain the Standards’

consistency with ADAAG. At the same time, the Department

will review its title III regulation to clarify a variety of issues.

In response to your petition, the Department will consider

further clarification of the assembly area seating requirements

at that time.

In the meantime, I have shared a copy of your petition

for rulemaking with the Access Board so that the Board may

incorporate your comments into its rulemaking record.

Sincerely,

s/ Bill Lann Lee

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division