Exhibition Giant Agrees To Renovations
Cinemark and Justice Dept.
Settle Wheelchair Seating Case
by Steven John Fellman
NATO Washington Counsel
In a settlement of great
importance to the entire motion picture theatre industry,
it was
announced that a consent
order had been reached in the case of U.S. v. Cinemark
pending in the United States District Court in Cleveland.
This consent order is the culmination of years of litigation
that started out at the district court level, went to the
U.S. Court of Appeals for the Sixth Circuit, and was the
subject of a petition for certiorari in the U.S. Supreme
Court. The Supreme Court refused to hear the case and the
court of appeals sent it back to the district court for
trial. Prior to any trial, Cinemark USA and the Department
of Justice (DOJ) entered into a consent order. The consent
order resolved the issue of where wheelchairs should be
located in existing Cinemark stadium-style theatres and
in the circuit’s new builds.
The agreement identified
120 operational Cinemark stadium-style auditoria and
nine Cinemark stadium-style cinemas in the
design stage. Cinemark is required to make structural renovations
in 32 auditoria, moving the wheelchair locations back one
row in the stadium section of the auditorium. The remaining
modifications require Cinemark to add companion seats,
or provide requisite number of companion seats and provide
the required horizontal wheelchair spacing. Cinemark has
five years to make the renovations. The consent order provides
that if Cinemark has difficulty in getting a construction
permit or if getting the permit would require a loss of
a 15 percent or greater number of seats than originally
estimated, or would cost more than 15 percent in excess
of what was originally estimated, Cinemark can renegotiate
the deal for that particular theatre.
It is the DOJ’s
position that with regard to existing theatres that feature
stadium-style seating, wheelchair
locations should be on a cross aisle and the cross aisle
should be elevated over the row in front of the cross aisle
in such a manner that the cross aisle constitutes a riser.
The DOJ believes that the consent order is consistent with
this position.
The consent order is
significant in its description of what constitutes Americans
With Disabilities Act (ADA)
compliance for new construction. To some extent, the consent
order tracks the Advance Notice of Proposed Rulemaking
published earlier this fall by the DOJ. However, the consent
order goes further and permits Cinemark to place wheelchair
seating on a riser in the rear 60 percent of the seats
of an auditorium. A riser is defined as an elevated platform
at least six inches in height. The DOJ appears to have
agreed that for new construction in auditoria of under
300 seats, wheelchair locations can be placed on a riser,
which is not a majority height riser, in the rear 60 percent
of the seats in the auditorium as long as the wheelchair
locations have one-on-one companion seating, have an unobstructed
view of the screen, and are integrated into the general
seating footprint of the auditorium.
In new construction of
auditoria of over 300 seats, two options are provided.
Either the wheelchair spaces can
all be placed in the rear 60 percent of the auditorium
or one-half of the required wheelchair spaces can be placed
in the rear 50 percent of the auditorium and the remainder
of the required wheelchair spaces can be placed in the
front half of the auditorium, but not the first row. In
either case, the wheelchair locations must be on risers.
If the auditorium has some seats on a sloped floor and
some on risers, all the ADA required wheelchair spaces
must be on risers.
Cinemark submitted prototype
plans for future construction to the DOJ. The plans are
included as exhibits to the consent
order. In the consent order, the DOJ states that these
plans conform to ADA requirements. There is strong language
in the consent order, which limits the DOJ’s rights
to assist private plaintiffs who believe that theatres
covered by the consent order are not in compliance with
the ADA. There is also a provision for Cinemark/DOJ mediation
of future disputes. Cinemark has the right to submit future
plans to the DOJ for approval. If the DOJ does not act
on the plan within a certain time period, the plan will
be considered to be approved.
Although the contents
of the consent order regarding new construction are obviously
of great significance, a major
concern if not the major concern for most NATO members
revolves about the requirements to make renovations in
existing theatres. In this context, it is interesting to
note that in those Cinemark theatres for which no renovations
are required, some, but not all, theatres have wheelchair
locations on risers.
The Cinemark consent
order is some 60 pages in length and includes an additional
99 pages of exhibits. Many of the
exhibits are drawings of seating plans and specifications
for Cinemark theatres. Copies of the consent order and
the exhibits are available by contacting NATO headquarters
in Washington, D.C. 
