Americans with Disabilities Act Technical Assistance Letters

791

June 2, 1999

The Honorable Max Cleland

United States Senator

75 Spring Street, S.W.

Suite 1700

Atlanta, Georgia 30303

Dear Senator Cleland:

This is in response to your inquiry on behalf of your constituent, xxx xxxxxxx xxxxxxxx. Please excuse our delay in responding. xxx xxxxxxxx expressed two concerns in his letter to you: (1) that the Department's lawsuit against American Multi-Cinema, Inc. and AMC Entertainment, Inc. (collectively, "AMC") is frivolous, and (2) that Bill Lann Lee's service as Acting Assistant Attorney General for the Civil Rights Division is not legal.

The Americans with Disabilities Act ("ADA") prohibits discrimination against individuals with disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, such as a movie theater. Discrimination includes giving persons with disabilities a good, service, facility, privilege, advantage, or accommodation that is not equal to that given to other individuals. The ADA also requires movie theaters designed and constructed after January 26, 1993, to be readily accessible to and usable by individuals with disabilities. To meet these requirements, a movie theater must provide wheelchair seating with lines of sight comparable to those for other members of the general public.

In 1997 and 1998, the Department conducted on-site investigations of six of AMC's theaters with stadium-style seating, including one theater located in Florida. AMC advised the Department that these theaters were representative of the theaters that it was building and operating nationwide. The Department's investigation revealed that, in mose of its auditorium's with stadium-style seating, AMC denies persons who use wheelchairs access to the stadium-style section of the theater and instead relegated them to much less desirable seating areas that are in the front rows of the theater and very close to the screen. The Department found that AMC's theaters violated the ADA because they did not provide wheelchair seating locations in the stadium-style section of the theater with lines of sight comparable to those for members of the general public.

In June 1998, the Department advised AMC that its theaters failed to comply with ADA requirements. For seven months, the Department attempted to reach a settlement with AMC which would provide for AMC's voluntary compliance with the ADA. However, AMC refused to comply voluntarily, so the Department was required to file suit against AMC to compel compliance with the ADA.

xxx xxxxxxxxxx letter expresses concern that the lawsuit might be frivolous. However, a district court in Texas has alaready addressed the same issues in a case involving a movie theater operated by Cinemark, USA, and found a plain violation of the ADA. A copy of that ruling is enclosed for your reference.

xxx xxxxxxxxxx letter states that it would be inappropriate for the Department to file a lawsuit requiring a theater to give persons who use wheelchairs access to each and every seat in a theater auditorium. The Department agrees with him on this point, and our lawsuit does not seek to require every seat to be wheelchair accessible. Instead, the lawsuit only seeks to require AMC to provide a relatively small number of wheelchair seats in the stadium-style section of each auditorium with lines of sight comparable to those for members of the general public. For example, in auditoriums with 300 seats, only four wheelchair spaces with comparable lines of sight must be provided -- not 300 seats.

The second concern xxx xxxxxxxxxx letter raises is whether Bill Lann Lee has the legal authority to perform the duties of Acting Assistant Attorney General for the Civil Rights Division because his appointment to the position of Assistant Attorney General has not been confirmed by the U.S. Senate. Bill Lann Lee was named Acting Assistant Attorney General by the Attorney General under her authority to make designations to fill vacancies at the Department of Justice. Prior to the Vacancies Act amendments of October 1998, the Attorney General had the authority to make designations to fill vacancies at the Department of Justice under 28 U.S.C. Sections 509-510. This authority has been used by Attorneys General in both Democratic and Republican Administrations for over 60 years. Mr. Lee's apointment was clearly lawful under this authority and under the terms of the Vacancies Act.

The Vacancies Reform Act expressly provides that it applies only to vacancies arising after its effective date, with the exception that the Act limits the term of service for an acting officer in a vacancy that arose before the law took effect. Since the position of Assistant Attorney General for Civil Rights has been vacant since 1997, the Vacancies Reform Act provides that he may continue to serve for at least a 210-day period pending the submission of a nomination to fill the vacancy. Since Mr. Lee's nomination was resubmitted to the Senate in March 1999, Mr. Lee may continue lawfully to serve as Acting Assistant Attorney General for as long as his nomination is pending before the Senate.

I hope this information responds to the concerns raised in the letter from your constituent. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Jon P. Jennings

Acting Assistant

Attorney General

Enclosure