Opinion
Civil No. 00-173-AS
January 3, 2002
A M E N D E D FINDINGS AND RECOMMENDATION
Defendant Regal Cinemas filed for bankruptcy after the court heard oral argument on this matter, effectively staying any ruling pending relief from the automatic bankruptcy stay. The remaining defendants, including plaintiffs, asked the court to issue a ruling with regard to them during the pendency of the stay. Accordingly, on December 12, 2001, the court issued Findings and Recommendation applicable to all parties except defendant Regal Cinemas. On December 27, 2001, Defendant Regal Cinemas advised the court that the United States District Court for the Middle District of Tennessee (Nashville Division) entered a Notice and Order Pursuant to Section 105(a) of the Bankruptcy Code to Lift the Stay in Order to Permit Certain Litigation to Proceed allowing this lawsuit to proceed against Defendant Regal Cinemas. The Notice became effective on December 27, 2001, when no objections were filed. Defendant Regal Cinemas requests that it now be included in the Findings and Recommendation entered December 12, 2001. Plaintiffs have no objection. Consequently, the court has amended the earlier Findings and Recommendation for the sole purpose of including Defendant Regal Cinemas as a defendant.
The named plaintiffs in this action are eight individuals who are deaf movie patrons alleged to represent "all others similarly situated" ("Plaintiffs"). Defendants Regal Cinemas, Inc., Century Theaters, Inc., and Cinemark USA, Inc. ("Defendants"), are owners and operators of movie theaters in Oregon and across the country. Plaintiffs' First Claim for Relief, which is their sole remaining claim for relief, alleges that Defendants' failure to install and utilize the Rear-Window Captioning System, or some other auxiliary aid that allows deaf individuals equal access to Defendants' services, violates Title III of the Americans with Disabilities Act ( 42 U.S.C. § 12181-12189 ("Title III"). The parties have filed cross motions for summary judgment on this claim.
Plaintiff's motion to certify a class pursuant to Fed.R.Civ.P. 23(a) and (b) is stayed until the court addresses the parties dispositive motions.
Another named defendant, Carmike Cinemas, Inc. was dismissed from the case by court order dated June 26, 2000.
Plaintiffs dropped their Second Claim for Relief for violation of O.R.S. § 659.425(3) and their Third Claim for Relief for Negligence in its response to Defendants' motion for summary judgment.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324. An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
In 1990, Congress enacted the Americans with Disabilities Act ( 42 U.S.C. § 12101, et seq.) ("ADA"). The purpose of this legislation was to eliminate discrimination against individuals with disabilities. 42 U.S.C. § 12101(b). Title III of the ADA imposes obligations upon those who operate public accommodations, such as movie theaters. The cornerstone of Title III is 42 U.S.C. § 12182(a), which provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation."
There is no dispute that Plaintiffs are "individuals with disabilities" under the ADA and are entitled to the protection offered by Title III. Additionally, there is no dispute that Defendants' theaters are a "place of public accommodation" and are required to provide Plaintiffs with a full and equal enjoyment of the goods it offers, which are movies. Plaintiffs make no claim that they have not been afforded access to any theater or the opportunity to view any movie being shown at the theaters.
Similarly, Plaintiffs have no complaints about their ability to communicate with the ticket vendors or the food vendors. The only thing Plaintiffs complain about is that the vast majority of the films shown by Defendants are not captioned in any way and Plaintiffs are not able to enjoy them to the same degree as hearing individuals without access to a written transcript through captioning. Accordingly, the core issue before the court is whether Title III requires Defendants to provide captioning on all of the movies that it offers so that Plaintiffs can enjoy the movies at the same level as hearing individuals.
In drafting Title III, Congress painted with a broad brush and then directed the Attorney General to promulgate regulations to implement the law. 42 U.S.C. § 12186(b). These regulations are found at 28 C.F.R. Ch. I, §§ 36.101, et seq. (the "Regulations"). The Regulations provide, in part:
(a) Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
(b) Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
(c) Separate benefit. A public accommodation shall not provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privileges, advantage or accommodation, or other opportunity that is as effective as that provided to others.28 C.F.R. § 36.202.
These Regulations make it clear that Title III requires all places of public accommodation to have access to the physical environment of the accommodation. In other words, Defendants may not refuse Plaintiffs access to any portion of their theaters or refuse Plaintiffs the right to watch any film that Defendants are showing in their theaters. However, Title III does not require Defendants to provide additional access to Plaintiffs to accommodate their disability, such as providing Plaintiffs with a separate theater that is equipped solely for the use of individuals with hearing loss. Plaintiffs are merely entitled to use Defendants' theaters to the same extent as hearing individuals. They may buy a ticket for a film shown by Defendants and sit in the same theater to watch the same movie shown to hearing individuals.
Title III and the regulations provide an additional obligation on a public accommodation if modifications or auxiliary aids are available that will enhance a disabled individuals use of a public accommodation to bring it to an equal footing with that of a non-disabled individual. Section 36.302(a) of the Regulations provide that:
A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.
More specifically, Section 36.303(a) provides that:
A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
The Regulations define the term "auxiliary aids and services" to include qualified interpreters, written materials, assistive listening devices, assistive listening systems, closed caption decoders and open and closed captioning for individuals with hearing impairments and Brailled materials and large print materials for individuals with visual impairments. 28 C.F.R. § 36.303(b).
While some auxiliary aids and services are required under Title III, the provision of such items is limited by the Regulations. The Regulations provide that:
(a) This part does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.
(b) A public accommodation shall order accessible or special goods at the request of an individual with disabilities, if, in the normal course of its operation, it makes special orders on request for unstocked goods, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business.
(c) Examples of accessible or special goods include items such as Brailled versions of books, books on audio cassettes, closed-captioned videotapes, special sizes or lines of clothing, and special foods to meet particular dietary needs.28 C.F.R. § 36.307
In conjunction with the Regulations, a section-by-section analysis and response to comments prepared by the Department of Justice (the "Department") was published as Appendix B to Part 36 of 28 C.F.R. Ch. 1. ("Appendix B"). Appendix B analyzes each provision of the Regulations in depth and offers illustrations intended to clarify the application of such provision.
In discussing the relationship between § 36.302 and § 36.307, Appendix B explains that:
The rule enunciated in § 36.307 is consistent with the "fundamental alteration" defense to the reasonable modifications requirement of § 36.302. Therefore, § 36. 302 would not require the inventory of goods provided by a public accommodation to be altered to include goods with accessibility features. For example, § 36.302 would not require a bookstore to stock Brailled books or order Brailled books, if it does not do so in the normal course of its business.
Appendix B, Subpart C, Discussion of Section 36.302.
The discussion of "auxiliary aids" required by § 36.303 provides:
The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as they result in effective communication. For example, a restaurant would not be required to provide menus in Braille for patrons who are blind, if the waiters in the restaurant are made available to read the menu. Similarly, a clothing boutique would not be required to have Brailled price tags if sales personnel provide price information orally upon request; and a bookstore would not be required to make available a sign language interpreter, because effective communication can be conducted by notepad.
* * *
Based upon a careful review of the ADA legislative history, the Department believes that Congress did not intend under Title III to impose upon a public accommodation the requirement that it give primary consideration to the request of the individual with a disability. To the contrary, the legislative history demonstrates congressional intent to strongly encourage consulting with persons with disabilities.
Appendix B, Subpart C, Discussion of Section 36.303.
The Regulation most applicable to issue before the court is § 36.307. Appendix B provides the following comments on that section:
Section 36.307 establishes that the rule does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individual with disabilities. As specified in § 36.307(c), accessible or special goods include such items as Brailled versions of books, books on audio-cassettes, closed captioned videotapes, special sizes or lines of clothing and special foods to meet particular dietary needs.
The purpose of the ADA's public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. In other words, a bookstore, for example, must make its facilities and sales operations accessible to individuals with disabilities, but is not required to stock Brailled or large print books. Similarly, a video store must make its facilities and rental operations accessible, but is not required to stock closed-captioned video tapes. The Department has been made aware, however, that the most recent titles in videotape rental establishments are, in fact, closed caption.
Although a public accommodation is not required by § 36.307(a) to modify its inventory, it is required by § 36. 307(b), at the request of an individual with disabilities, to order accessible or special goods that it does not customarily maintain in stock if, in the normal course of its operation, it makes special orders for unstocked goods, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business. For example, a clothing store would be required to order specially-sized clothing at the request of an individual with a disability if it customarily makes special orders for clothing that it does not keep in stock, and if the clothing can be obtained from one of the store's customary suppliers. Appendix B, Subpart C, Discussion of Section 36.307.
In directing the Attorney General to promulgate regulations, Congress required the regulations to be consistent with the"minimum guidelines and requirement issued by the Architectural and Transportation Barriers Compliance Board" (the "Board"). 42 U.S.C. § 12186(c). The guidelines issued by the Board, which are included as Appendix A to Part 36 of 28 C.F.R. Ch. 1. ("Appendix A"), require public accommodations to provide assistive listening devices, which "are intended to augment standard public address and audio systems by providing signals which can be received directly by persons with special receivers or their own hearing aids, and which eliminate or filter background noise."
Appendix A, Section 4.33.7.
It is clear from the House Report dated May 15, 1990, in which the Committee on Education and Labor (the "Committee") discussed an early version of the ADA (the "Report"), that Congress did not intend for the ADA to require open captioning of all feature films shown in movie theaters. The Report states:
Open-captioning, for example, of feature films playing in movie theaters, is not required by this legislation. Filmmakers, are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films.
* * *
The committee wishes to make it clear that technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose unique burdens on such entities. Indeed, the Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times.
For these reasons, the Committee expects the Federal agencies charged with the implementation of this Act to take special interest in being aware of the possibilities relating to information dissemination and to make special efforts to share this information through technical assistance programs.
H.R. Rep. 101-485(II), *108
Defendants are complying with the requirements of Title III as explained by Congress through the Report. The Committee specifically stated Title III did not require movie theaters to show open-captioned films. This was likely in recognition that the movie theaters were at the mercy of the movie makers in this area.
Currently, movie makers are in control of which movies are open captioned. A movie maker selects the film it wants open-captioned after the film is complete and, in most cases, after the film has proved successful in the movie theaters. Only a few copies of the movies selected are purchased by the one or two companies that handle open-captioned films. These companies then burn the captioning directly on the film and make the few copies available to all of the movie theaters in the United States.
Because of the small number of open-captioned copies available to the theaters, the theaters have little, if any, control over the times and days that they may show the open-captioned films. At least one of the Defendants has obtained a copy of every open-captioned film available to it over the past two years and exhibited that film to the greatest extent possible during the time it was available to it.
This exceeds the standards set by Congress when it passed Title III.
Even in the absence of Defendants' compliance with Title III as expressed by the Committee in the Report, Defendants are complying with the requirements of Title III as explained by the Regulations. Defendants are allowing disabled individuals full access to their theaters and their selection of films and they are offering open-captioned films as often as once a month in the Portland area.
Plaintiffs argue that this is not enough and that Defendants should be required to expend thousands of dollars per auditorium to install new technology and to obtain the limited number of films that are compatible with that technology. While not a retailer of films, a movie theater's "inventory" are the films that it chooses to offer to its audience. Currently, Defendants' inventory is comprised primarily of un-captioned films. Plaintiffs are demanding that Defendants not only "stock" captioned films, but that they stock films that are captioned with a particular technology. The Regulations expressly relieve Defendants of this obligation.
There is some dispute about how much installation of the rear-window captioning system will cost. Plaintiffs assert that the cost is $8,960 per auditorium while Defendants contend that the cost is $14,206 per auditorium.
The Regulations require a provider to alter its inventory to include accessible or special goods only if the provider honors special requests of its non-disabled customers and the accessible or special goods can be obtained from a supplier with whom the provider customarily does business. There is no evidence that Defendants' non-disabled customers have the ability to request that certain movies be played in the theaters. Additionally, there is no indication that the companies that provide the films that are compatible with rear-window captioning are the same ones that Defendants currently do business with. Under the regulations, Defendants have no obligation to comply with Plaintiffs' demand to purchase specially-altered movies to accommodate Plaintiffs' disability.
Defendants have established that they currently show all of the open-captioned films for the entire time they are available to them. Plaintiffs concede that they attend showings of open-captioned and that this form of captioning is an effective, if not the most desirable, form of communication.
The Department interpreted Section 36.303(a) to allow public accommodations to chose among various alternatives as long as the chosen alternative provides effective communication. The fact that Plaintiffs desire rear-window closed-captioned films is irrelevant when Defendants are already providing a special service that is just as effective.
Another major impediment to Plaintiffs' request is that Plaintiffs have failed to establish that the installation of rear-window captioning technology will improve their access to first-run feature films. Everyone involved in this action concedes that rear-window captioning is a new product and only one of the alternative technologies currently available to provide captioning for films. There is no evidence that rear-window captioning is the best of the new products or that the hardware required to support rear-window captioning will be compatible with the changes to the film industry expected in the next few years. Additionally, it is clear that more open-captioned films are available than those formatted for rear-window captioning. The court finds that requiring Defendants to expend thousands of dollars per auditorium to install new technology is unduly burdensome when such action will not immediately increase the number of films available to Plaintiffs and when the technology installed may become obsolete in the next three to five years.
Plaintiffs concede that the majority of movies are now available for purchase in captioned format on VHS or DVD. Plaintiffs sole complaint is that they are not able to watch first-run feature films in the movie theater with nondisabled viewers.
The film industry is considering digital cinema which would allow movie theaters access to feature films via satellites and airwaves and would make rear-window captioning obsolete.
The first feature film formatted for rear-window captioning was Titanic in 1997 or 1998. Since then, only 25 feature films have been formatted for rear-window captioning and many of those were formatted after the first run films had been dropped from the movie theaters.
In enacting Title III, Congress expressed its desires that the federal agencies empowered with implementing the ADA take special interest in new technology and ensure that the accommodations and services provided under the ADA keep pace with such technology. It is clear that no agency has considered the new closed-captioning technology and required installation of such technology in theaters. The question of whether the ADA requires Defendants to install closed-captioning devices requires more than just the consideration of existing law. Several additional issues are raised by this question. Will the new technology provide sufficient accommodations for dual-disabled individuals? Will the movie makers support the changes made by the movie theaters? Is rear-window captioning the best new technology or is something better just around the corner? The court is not in a position to consider all of these issues. The appropriate venue for resolution of this dispute is before the agencies empowered by Congress to implement and enforce the ADA.
For these reasons, the court finds that Defendants are not violating Title III by failing to install rear-window captioning in each of their theaters. To the contrary, Defendants have exceeded their obligations under the current legislation, regulations and case law, by renting and showing films that are open-captioned.
Defendants seek attorney fees occurred in defending this action. Title III allows a defendant to recover attorneys fees as a prevailing party if it can show that the plaintiff's claims were frivolous, vexatious, or groundless from the beginning, or if a plaintiff continues to litigate after the case clearly becomes so. Adkins v. Briggs Stratton Corp., 159 F.3d 306 (7th Cir 1998). Defendants argue that Plaintiffs' counsel filed this action in bad faith and limits its request for an award of attorney fees to Plaintiffs' counsel with the individual Plaintiffs bearing no burden for payment of any attorney fees awarded. Defendants specifically claim that Plaintiffs' counsel concocted the idea for this lawsuit, actively solicited clients to sue Defendants; filed suit on behalf of one plaintiff who did not even know he was a party to the action; and named certain defendants even though none of the plaintiffs ever attended a movie at a theater owned by either defendant.
The court finds that an award of attorney fees is inappropriate. Title III does not specifically address "closed-captioning." This is very likely due to the fact that the technology was not available at the time the ADA was passed. In the last few years, such technology has become available and, while the court finds that this action was premature in this venue, it is time for the agencies to consider Defendants' obligations under Title III in light of the new technology. It appears that once the action was filed, each of the plaintiffs willingly participated in the action and were interested in altering the current state of captioning in movie theaters. Finally, it is not unreasonable when filing an action expected to affect all movie theaters to name as defendants all companies who have interests in movie theaters within the state.
CONCLUSION
Defendants' motion (#109) for summary judgment should be GRANTED. Plaintiffs' motion (108) for partial summary judgment should be DENIED. Defendants request for attorney fees and costs should be DENIED. In light of the outcome, the court DENIES as moot Defendants' motions (#136 and #139) to strike.