# Appendix — Regal Cinemas, Inc. v. Stewmon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2346%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1101

## Text

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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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Appendix A

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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Appendix A

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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Appendix A

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

20a

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

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