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The ADA Goes to the Movies, The Sequel: The ADAAA

By "Milbarge" and "Fitz-Hume"

I have written quite a few times (here and here and here and here and here) about the application of the Americans with Disabilities Act to stadium-style movie theaters. (One of those posts discusses the same legal principles with respect to racetracks.) In short, there's been a great deal of litigation over how the ADA applies to these theaters; that is, where the theaters have to put wheelchair-accessible seats in order to provide comparable lines of sight for wheelchair-bound patrons and able-bodied moviegoers.

Over the weekend, Howard at How Appealing alerted me to the latest in this ongoing saga. A new decision from the Ninth Circuit discusses at length the differing approaches of the circuits to the issue, and what remedy is available against theaters found to be in violation of the ADA.

I haven't taken the time to digest the opinion completely, but the upshot appears to be holdings that (a) the district court couldn't order the theater chain to retrofit theaters for ADA compliance if they were built before the applicable regulations were promulgated; and (b) the district court couldn't order a nationwide injunction when the law in some circuits is more favorable to the theater chain than the Ninth Circuit's position.

I have been predicting a cert grant on this issue for years. I'm not sure this case is the right vehicle. Perhaps if the en banc Ninth Circuit revisits the scope of the right, rather than just the contours of the remedy. But sooner or later, the circuit split will become untenable and the Supreme Court will have to step in.

While I'm on the subject, you may have missed the news that President Bush recently signed into law the Americans with Disabilities Act Amendments Act (that's right -- the ADAAA). Here's a primer on the ADAAA, and here's some more coverage (both of those from the defense perspective, but good overviews). The ADAAA clarifies some of the original Act's definitions and is expressly designed to ensure that the ADA applies more broadly than some courts have interpreted it. Since it's mainly focussed on what constitutes a "disability" under the Act, I don't think the ADAAA will affect the movie theater cases. But of course, the Obama administration could decide to revise the governing regs or push for even stronger legislation. And let's not forget the kudos to both Presidents Bush for signing the ADA and the ADAAA, even if the latter wasn't highly publicized.

Full post as published by Begging the Question on December 08, 2008 (boomark / email).