United States of America, Plaintiff, v. Cinemark USA, Inc., Defendant - Consent Order

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

CINEMARK USA, INC.,

Defendant.

CIVIL ACTION NO. 1:99CV-705

Hon. Donald C. Nugent

Consent Order

The United States filed a complaint under the Americans with Disabilities Act ("ADA") on March 24, 1999 (the "Complaint"), alleging that Cinemark USA, Inc. engaged in a nationwide pattern and practice of designing, constructing, and/or operating stadium-style movie theaters that deny access to persons with disabilities who use wheelchairs and do not comply with the new construction standards of the ADA, including the line of sight requirements identified in 28 C.F.R. pt. 36, App. A, § 4.33.3. Cinemark has at all times denied any violation of law and nothing in this Consent Order constitutes an admission by Cinemark of any violation under Title III of the Americans with Disabilities Act, its enabling regulations, or of any of the allegations made by the United States in this lawsuit. The United States recognizes that Cinemark has cooperated and demonstrated a commitment toproviding persons with disabilities who use wheelchairs equal access to Cinemark's stadium-style movie theaters. The United States and Cinemark present the following Consent Order and final judgment, which resolves the United States' Complaint against Cinemark.

JURISDICTION

A.      The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 12188(b).

B.       Pursuant to 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104, motion picture houses are places of public accommodation. Stadium-style movie theaters, defined below, are therefore places of public accommodation within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104.

WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Consent Order and Final Judgment, which provides as follows:

PRELIMINARY MATTERS

A.      Cinemark USA, Inc. is a Texas corporation with its principal place of business located in Plano, Texas. Cinemark owns and/or operates motion picture theaters, including stadium-style movie theaters, in various states throughout the United States. Cinemark owns and operates places of public accommodation within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104.

B.       The United States Department of Justice ("Department" or "DOJ") is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189.

C.      Pursuant to Title III of the ADA, all places of public accommodation – including Cinemark's stadium-style movie theaters – that were designed and constructed for first occupancy after January 26, 1993, must be readily accessible to and useable by persons with disabilities by complying with the requirements set forth in the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A (the "ADA Standards").

D.      The Department began receiving complaints from persons with disabilities regarding a new design of movie theaters across the country, including stadium-style movie theaters owned and/or operated by Cinemark, known as "stadium-style movie theaters," in which most of the seating is elevated on a series of risers in the auditorium.

E.      In Cinemark's auditoria with more than 300 seats, patrons may use elevators to access some of these seats on risers. In some of Cinemark's auditoria with 300 seats or less, persons who use wheelchairs cannot access the seating on risers as the wheelchair spaces available to them are located on the traditional, sloped-floor section of the auditoria in front of the seating on risers.

F.       Some complainants who use wheelchairs informed the United States that the wheelchair spaces available to them in some of Cinemark's auditoria with 300 seats or less were too close to the screen and caused physical discomfort.

G.      After the Department began investigating complaints about stadium-style movie theaters, Cinemark and other companies argued that they satisfy the requirements of the ADA by providing patrons who use wheelchairs with "unobstructed" views of the screen. Later, the United States Court of Appeals for the Fifth Circuit so held in Lara v. Cinemark USA, Inc., 207 F.3rd 783 (5th Cir.), cert. denied, 531 U.S. 944 (2000). Based upon the Lara decision, the United States shall not seek any relief for Cinemark theaters in states within the jurisdiction of the Fifth Circuit.

H.      The United States' interpretation of ADA Standard 4.33.3 was issued in an amicus brief in July 1998 and federal circuit courts and district courts across the country have differed about whether or not the interpretation espoused by the United States was a proper interpretation of the ADA, how compliance with such an interpretation should be measured, and the appropriate remedies, if any, for retrofits, taking into account due process concerns. Cinemark has also expressed its concern to the Department that ADA Standard 4.33.3 and the United States' interpretation thereof provided insufficient guidance for theater designers about the proper placement of wheelchair seating areas in its stadium-style movie theaters. The Department acknowledges that the movie theater industry has long expressed confusion about legal obligations under Standard 4.33.3.  Since the United States published its interpretation of ADA Standard 4.33.3 in the July 1998 amicus brief in Lara, Cinemark has made good faith efforts to design its stadium-style movie theaters in compliance with the United States' aforementioned interpretation.

I.       On January 28, 1998, the Department opened an investigation of Cinemark's stadium-style movie theaters. On or about December 2, 1998, prior to litigation, the Department and Cinemark entered into discussions about future construction obligations for its stadium-style movie theaters. The Department issued a letter dated January 26, 1999, asserting that Cinemark's theaters were in violation of the ADA. Cinemark disagreed with the Department's conclusions and asserted its belief that its auditoria complied with the ADA. Cinemark filed suit against the United States in the United States District Court for the Northern District of Texas on January 28, 1999, alleging that the Department's interpretation of Standard 4.33.3 violated the Administrative Procedures Act, 5 U.S.C. 551 et seq.

J.       The Department filed a lawsuit against Cinemark on March 24, 1999, in the United States District Court for the Northern District of Ohio, to enforce compliance with the requirements of Title III of the ADA. In this lawsuit, the United States alleged that Cinemark committed a pattern or practice of discrimination in violation of Title III of the ADA by (1) failing to design and construct its stadium-style movie theaters so as to provide persons who use wheelchairs with a choice of seating locations and lines of sight comparable to those provided to members of the general public; and (2) failing to provide persons with disabilities equal access to the choices, benefits, and services available at its stadium-style movie theaters. Cinemark denies the allegations in the United States' complaint.

K.      Cinemark filed counterclaims and affirmative defenses alleging, among other things, that the DOJ acted unlawfully by attempting to retroactively change the meaning and interpretation of ADA Standard 4.33.3, that the DOJ failed to comply with the Administrative Procedures Act in promulgating, announcing, and attempting to enforce its interpretation of Standard 4.33.3, that the DOJ's interpretation illegally deprived Cinemark of due process, that Cinemark relied in good faith on state approvals when constructing its theaters, and that the DOJ should be estopped from invalidating those approvals.

L.       Cinemark's stadium-style movie theater designs in Texas were approved by the Texas Department of Licensing and Regulation as accessible under the Texas Accessibility Standards, state accessibility regulations certified by the United States as "meeting or exceeding" federal standards. Cinemark claims that its stadium-style movie theaters across the nation are substantially similar, if not identical, to these state-approved designs.

M.      As a result of ongoing discussions, Cinemark and the Department (collectively, the "parties") have reached agreement that it is in the parties' best interests, and the Department believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation.

1.       Definitions. The parties agree and stipulate that certain terms shall be defined for purposes of this Consent Order:

1.1     "ADA" shall mean and refer to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.

1.2     "ADA Standards" or "the Standards" shall mean and refer to the new construction standards as set forth at 28 C.F.R. pt. 36, Appendix A.

1.3     "Auditorium" shall mean and refer to a room in a stadium-style movie theater that contains a single screen for the public exhibition of motion pictures and seating for members of the general public.

1.4     "Cinemark" shall mean and refer collectively to Cinemark USA, Inc. and its subsidiaries and affiliates.

1.5     "Companion seat" or "companion seating" shall mean and refer to a seat within an auditorium, which is affixed to the auditorium floor, and which is immediately adjacent to a wheelchair space.

1.6     "Consent Order" or the "Order" shall mean and refer to this Consent Order and Final Judgment, including all attached appendices.

1.7     "Cross-Aisle" shall mean and refer to a pathway between sections of seats that is parallel to the theater screen.

1.8     "Designed Theaters" shall mean and refer to those Cinemark stadium-style movie theaters for which designs have been completed as of the Effective Date of this Consent Order that are listed in Appendix A. Copies of the plans for the Designed Theaters are attached in Appendix B.

1.9     "DOJ" or the "Department" shall mean and refer to the United States Department of Justice.

1.10    "Effective Date" of this Consent Order shall mean and refer to the date that this Consent Order is entered as a final judgment by the United States District Court for the Northern District of Ohio.

1.11    "Existing Theaters" shall mean and refer to all of Cinemark's stadium-style movie theaters listed in Appendix C to this Consent Order.

1.12    "Future Construction Theaters" shall mean and refer to all of Cinemark's stadium-style movie theaters in the United States that are not covered under the definition of "Existing Theaters" or "Designed Theaters" for which permits for construction were issued on or after the Effective Date of this Consent Order and which have been built in conformance with any of the seating plan designs for such Future Construction Theaters, attached hereto as Appendix D. Those seating plans have been specifically approved by the United States as compliant with the wheelchair seating location requirements of both Standard 4.33.3 and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.

1.13    "Modified Theaters" shall mean and refer to Cinemark's Existing Theaters that are modified pursuant to Sections 3.1-3.11 of this Consent Order.

1.14    "Riser" shall mean and refer to an elevated tier (usually six to eighteen inches) in an auditorium on which seats are affixed to the auditorium floor.

1.15    "Stadium-style seating," "stadium section," or "stadium seating" shall mean and refer to that portion of the auditorium where the seats are affixed to risers. Each row of stadium seating is elevated above the row immediately ahead of it and is accessed by stepped, rather than sloped, aisles. For purposes of this Consent Order, stadium-style seating excludes IMAX auditoria.

1.16    "Traditional, sloped-floor" or "traditional seating" shall mean and refer to the section of an auditorium in which the seats are not affixed on risers, but are instead affixed to a flat or sloped floor. Prior to the introduction of stadium-style seating in 1995, almost all seating in movie theaters was located on this type of sloped floor.

1.17    "Unobstructed view" to the screen, for purposes of this Consent Order, shall mean and refer to a view to the screen that is not blocked or interfered with by any seats, railings, or other objects and is configured to have visual clearance over average height patrons seated one row ahead of the wheelchair spaces; an "obstructed view" to the screen fails to provide this clear view.

1.18    "Wheelchair space," "wheelchair location," or "wheelchair seating" shall mean and refer to a designated space in an auditorium where a person who uses a wheelchair or motorized scooter can situate him- or herself to view a motion picture in that auditorium.

2.       Settlement of On-Going Litigation

2.1     The United States and Cinemark agree to stipulation of the terms set forth herein and to entry of this Consent Order as a binding resolution of this litigation.  The parties further agree that this Consent Order shall extinguish all claims for relief and all counterclaims between the United States and Cinemark in the aforementioned litigation.  Nothing in this Consent Order shall prohibit Cinemark from using the arguments that form the basis of Cinemark's denials, affirmative defenses, and counterclaims to defend itself in future litigation.  Entry of this Consent Order brings certainty regarding Cinemark's obligation concerning the placement and location of wheelchair spaces, and the depth of the cross-aisles, at all of Cinemark's Existing Theaters, Designed Theaters, and Future Construction Theaters, as defined in this Consent Order.

2.2     This Consent Order shall be a full, complete, and final disposition and settlement of all of the United States' and Cinemark's claims between the parties that have arisen in this case. The United States' Complaint shall be dismissed, and final judgment entered with prejudice.

2.3     The United States acknowledges and agrees that, when Cinemark completes the modifications set forth in 3.1 through 3.11 of this Consent Order for each Modified Theater, and when Cinemark opens Designed Theaters and Future Construction Theaters built in accordance with this Consent Order after the Effective Date of this Consent Order, these theaters, in each case, shall be in compliance with the requirements of the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements. For the aforementioned theaters, no further modification shall be necessary to comply with ADA Standard 4.33.3 and Sections 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.  The United States further acknowledges and agrees that for Cinemark's Existing Theaters (other than the Modified Theaters), upon the Effective Date of this Consent Order, such Existing Theaters satisfy the Department's concerns under the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements; and no other modification is required to comply with ADA Standard 4.33.3 and Sections 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.  

2.4     The United States shall be prohibited from filing suit against Cinemark for alleged violations of ADA Standard 4.33.3 with respect to any of Cinemark's Existing Theaters, any of Cinemark's Modified Theaters that are modified in accordance with this Consent Order, and any of Cinemark's Designed Theaters or Future Construction Theaters that are designed and constructed in accordance with this Consent Order. In the event that there are changes in the legal requirements governing the design of wheelchair seating locations in assembly areas (including stadium-style movie theaters), whether by modification of the DOJ's regulation implementing Title III of the Americans with Disabilities Act (currently codified at 28 C.F.R. Part 36, including Appendix A, the Standards for Accessible Design), by act of Congress, or by decision of the United States Supreme Court, Cinemark shall thereafter construct any new theaters in compliance with whatever new or different design requirements are adopted, enacted, or held to be binding.  This Consent Order shall be a full, complete, and final disposition and settlement of all of the United States' and Cinemark's claims between the parties that have arisen in this case. The United States' Complaint shall be dismissed, and final judgment entered with prejudice.

2.5     In any third party litigation involving Cinemark's stadium-style movie theaters, the United States shall not advocate a position that contradicts or calls into question the terms of this Consent Order.

2.6     Except as permitted by Section 8.3, the United States shall be prohibited from filing suit, from encouraging others to file suit, or assisting others in filing suit against Cinemark on any issue or claim addressed in this Consent Order, except nothing in this Consent Order precludes the Department of Justice from providing technical assistance through the Department of Justice ADA Information Line and all parties agree that such information may be provided by the Department of Justice to third parties by that means without limitation.  Except as permitted in Section 8.2, the United States shall also be prohibited from investigating Cinemark for alleged violations of requirements of the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements, with respect to any Existing Theater, Modified Theater, Designed Theater, or Future Construction Theater built in accordance with this Consent Order, as defined above.

3.       "Modified Theaters"

Cinemark shall modify the wheelchair seating spaces in the following theaters ("Modified Theaters") in accordance with the seating plans attached as Appendix E. It is understood that seating row numbers are from row locations as they exist at the time that this Consent Order is entered and that in some cases, modifications will result in removal of a row of seating. Therefore, when wheelchair spaces are relocated one or more row[s] farther back from the screen, that movement is measured from the existing seating plan. Thus, wheelchair seating may be effectively relocated one row farther back from the screen, even where there is no change in row number in the final seating plan.  The modifications listed here are minimum modifications mandated under this Consent Order and to the extent that actual modifications include and exceed those listed here, they will be deemed in compliance with this Consent Order.  The modifications that Cinemark will make to the Modified Theaters pursuant to this Consent Order will be completed such that the changes made to comply with the provisions of Paragraph 3.1-3.11, below, shall comply with the ADA Standards that are directly implicated by such modifications.  None of the modifications made pursuant to this Consent Order shall trigger any other obligations under the ADA, subsidiary, ancillary, or otherwise.

3.1 Canton Tinseltown 15
4720 Mega Street NW North Canton, Ohio

- In Auditorium 1, two additional wheelchair spaces and two additional companion seats shall be provided in the rear of the auditorium (away from the screen) where four (4) wheelchair spaces are currently located.

- In Auditorium 5, the four (4) wheelchair spaces shall be raised six inches in height at their current location.

- In Auditorium 6, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 8, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 15, two additional wheelchair spaces and two additional companion seats shall be provided in the back of the auditorium (away from the screen) where four (4) wheelchair spaces are currently located.

- In Auditoria 5, 6, 10, and 11, fixed companion seats shall be added to provide one companion fixed seat next to each wheelchair space.

3.2 Grandville Cinemark 20
3728 Rivertown Parkway, Grandville, Michigan

- In either Auditorium 7 or Auditorium 14, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditoria 2, 3, 4, 5, 7, 9, 12, 14, 16, 17, 18, and 19, fixed companion seats shall be added to provide one fixed companion seat next to each wheelchair space.

3.3 Lexington Woodhill Movies 10
425 Codell Drive Lexington, Kentucky

- In Auditoria 3 and 10, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 8, sufficient wheelchair spaces shall be added to provide the required number of wheelchair spaces specified in Standard 4.1.3(19)(a).

3.4 Cinemark at Macedonia
8161 Macedonia Commons Blvd., Macedonia, Ohio

- In Auditorium 1, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 8, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In either Auditorium 10 or Auditorium 11, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 15, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

3.5 Gahanna Stoneridge Plaza Movies 16,
323 Stoneridge Lane, Gahanna, Ohio

- In Auditorium 3, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 4, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 10, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditoria 13, 14, 15, 16 sufficient wheelchair spaces shall be added to provide the required number of wheelchair spaces specified in Standard 4.1.3(19)(a).

3.6 Youngstown Tinseltown 7
7401 Market Street, Boardman, Ohio

- In Auditorium 3, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 5, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditoria 1 and 7, one fixed companion seat shall be provided next to each wheelchair space.

3.7 Louisville Tinseltown 19
4400 Towne Center Drive, Louisville, Kentucky

- In Auditorium 6, the two (2) wheelchair spaces in the front row shall be relocated to the third row.

- In Auditorium 10, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 13, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 14, the two (2) wheelchair spaces and two (2) companion seats in the front row shall be relocated to the third row.

- In Auditorium 16, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditoria 2, 3, 5, 8, 12, 15, 17, and 18 one fixed companion seat shall be provided next to each wheelchair space.

3.8 Cinemark at Valley View
6001 Canal Road, Valley View, Ohio

- In Auditorium 15, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 17, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 19, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

3.9 Oak Ridge Tinseltown 14
755 W. Main Street, Oak Ridge, Tennessee

- In Auditorium 4, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

- In Auditorium 13, the four (4) wheelchair spaces shall be relocated one row farther back in the auditorium from their current location.

3.10 Cinemark 22
2600 West Avenue I, Lancaster, California

- In Auditorium 10, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location.

- In Auditorium 14, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location.

- In Auditorium 17, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location

3.11 Tinseltown
651 Medford Center, Medford, Oregon

- In Auditorium 6, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location.

- In Auditorium 8, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location.

- In Auditorium 10, the four (4) wheelchair spaces shall be located one row further back in the auditorium from their current location.

3.12 Other Modified Theaters

3.12.1 In each of the auditoria listed below Cinemark will relocate wheelchair seating from the front row to at least one row farther back from the screen:

Tinseltown 17, North Aurora, Illinois:
Auditoria 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17.
 

Tinseltown 17, Rochester, N.Y.:
Auditoria 2, 3, 4, 5, 6, 11, 12, 13, 14 and 15.
 

Layton Movies 7, Layton, Utah:
Auditoria 2, 3, 4, 5 and 6.

3.12.2 In each of the auditoria listed below Cinemark will add sufficient wheelchair spaces to provide the required number of wheelchair spaces specified in Standard 4.1.3(19)(a):

Cinemark 10, Melrose Park, Illinois:
Auditoria 2, 3, 8, and 9.
 

Tinseltown 17, Rochester, New York:
Auditoria 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.
 

Layton Movies 7, Layton, Utah:
Auditoria 2, 3, 4, 5, and 6.

3.12.3 In each of the auditoria listed below Cinemark will add companion fixed seats to provide one fixed companion seat next to each wheelchair space:

Tinseltown 20, Merriam, Kansas:
Auditoria 5 and 16.
 

Tinseltown 17, Rochester, New York:
Auditoria 3, 5, 12, and 14.
 

Layton Movies 7, Layton, Utah:
Auditoria 1 and 7.
 

Tinseltown 14, Ogden, Utah:
Auditoria 3 and 4.

3.12.4 In each of the auditoria listed below Cinemark will provide wheelchair spaces that comply with the minimum size required by Standard 4.33.2 and Figure 46:

Cinemark at the Plaza, Kansas City, Missouri:
Auditoria 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

3.13 General Requirements for all Modified Theaters. Unless otherwise provided herein, all modifications to the wheelchair spaces in Cinemark's Modified Theaters, described in paragraph 3.1-3.11 above, must comply with the following:

a. Placement of Wheelchair Spaces
Each wheelchair space shall comply with the size requirements set forth in § 4.33.2 of the Standards, be level and satisfy the floor surface requirements as set forth in § 4.33.4 of the Standards, and cross-aisles shall satisfy the accessible route requirements set forth in 4.33.3.

b. Dispersed Wheelchair Locations in Auditoria with More Than 300 Seats
In all auditoria with more than 300 seats, wheelchair spaces shall be provided in more than one location.

c. Companion Seating

At least one fixed companion seat shall be provided adjacent to each wheelchair space. In other words, the ratio of companion seats to wheelchair spaces shall be at least 1:1.

Wheelchair locations and companion seats shall be aligned horizontally so that they are shoulder-to-shoulder with each other and with other seats in the same row.

Wheelchair spaces and companion seats shall be located on the same floor level as other seats in the same row — they shall not be higher or lower relative to the other seats in the row or relative to each other.

d. Number of Wheelchair Spaces Required:
Cinemark shall provide at least the minimum number of wheelchair spaces required in each auditorium as set forth in § 4.1.3(19)(a) of the Standards.

e. Unobstructed View of the Screen
All wheelchair spaces and companion seats must provide an unobstructed view to the screen, as defined in § 1.17 of this Consent Order.

3.14 Cinemark will make reasonable good faith efforts to obtain permits and authorizations including, without limitation, building permits and certificates of occupancy that may be required under local law, ordinance, or other applicable law in order to accomplish the modifications Cinemark will make under this Consent Order. If a city or other applicable state or local authority does not provide the permits or authorizations in a timely manner, and such delay impacts Cinemark's ability to make any of the modifications set forth in the Consent Order within any of the time periods set forth herein, the applicable time period(s) for Cinemark to make the modification(s) at issue shall be automatically extended by the period of the delay. Cinemark shall immediately notify the Department of such delay and the reasons therefor. If a city or other applicable state or local authority refuses to provide permits or authorizations needed to accomplish any modification required under this Consent Order, or conditions the issuance of any such permit or authorization on Cinemark's making modifications in addition to those required by the Consent Order, Cinemark's obligation to make the modification(s) will be suspended while Cinemark and DOJ meet in a good faith effort to agree on a comparable substitute modification(s) that shall not result in costs in excess of 15%, adjusted for inflation, over the contract cost of the changes contemplated by the modifications set forth in this Consent Order, and shall not result in seat loss in excess of 15% greater than that contemplated in this Consent Order.

3.15 Nothing in this Consent Order shall limit the placement of any additional wheelchair spaces required by state or local codes beyond those mandated under the ADA Standard 4.33.3 and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004, for a particular auditorium.

4.       Seating Plans for Designed Theaters and Future Construction Theaters

The United States has reviewed and specifically approves the auditoria seating plans for the Designed Theaters set forth in Appendix B and the seating plans for Future Construction Theaters attached as Appendix D to this Consent Order for compliance with ADA Standard 4.33.3, and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.

5.       Notice to Patrons

After modifications specified in Sections 3.1-3.11 have been completed at each Modified Theater, Cinemark will provide notice that wheelchair seating locations in those specific auditoria have improved wheelchair placements and locations. Such notice shall be by posting at the box office or in the lobby and on the web pages for those theaters on Cinemark's website. Notice will be maintained during the term of this Consent Order.

6.       Standards for "Future Construction Theaters"

All future construction of Cinemark stadium-style movie theaters shall comply with the following requirements:

6.1     Wheelchair spaces shall have at least one fixed companion fixed seat adjacent to each wheelchair space. In other words, the ratio of companion seats to wheelchair spaces shall be at least 1:1.

6.2     Wheelchair spaces and their companion seats shall be located on a riser.

6.3     Wheelchair spaces shall be integrated into their seat row and shall not be separated by any aisle or other break from the companion seat in the same row.

6.4     Wheelchair locations and companion seats shall be aligned horizontally so that they are shoulder-to-shoulder with each other and with other seats in the same row.

6.5     Each wheelchair space shall comply with the size requirements set forth in § 4.33.2 of the Standards, be level and satisfy the floor surface requirements as set forth in § 4.33.4 of the Standards, and the cross-aisles shall satisfy the accessible route requirements set forth in § 4.33.3.

6.6     In all auditoria with more than 300 seats, wheelchair spaces shall be provided in more than one location.

6.7     Cinemark shall provide at least the minimum number of wheelchair spaces required in each auditorium as set forth in § 4.1.3(19)(a) of the ADA Standards.

6.8     All wheelchair spaces and companion seats must provide an unobstructed view to the screen, as defined in § 1.17 of this Consent Order.

6.9     The Parties acknowledge and agree that wheelchair spaces and their companion seats located in accordance with the seating plans for Future Construction Theaters, as referenced in Section 4 above, provide lines of sight comparable to those provided to members of the general public.  For purposes of this Consent Order, if Cinemark chooses to use a design for an auditorium that is different from those listed in Section 4 and Appendix "D," it will still be in conformance with ADA Standard 4.33.3, and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004, if:

a. the seating plan design uses the same ratio of (i) the total number of seats in the same row as the wheelchair location plus all the seats in the rows between the wheelchair location and the screen, compared to (ii) the total number of seats in the auditorium. Cinemark may provide a greater ratio (i.e., it can place the wheelchair spaces farther back in the seating layout from the screen). The two auditoria being compared need not have the same shape.

OR

b. the measurement of the vertical viewing angle (the angle between a horizontal line from the eye to the screen and a line from the eye to the top of the screen) are within the range of vertical viewing angles for the seats located in the back half of the seats in the auditorium (i.e., wheelchair viewing angles between the 50th and 100th percentile).

OR,

c. all ADA-mandated wheelchair seating and companion seating is located (i) within the rear 60% of the seats provided in an auditorium, or (ii) within the area in an auditorium in which the vertical viewing angles (the angles between a horizontal line from the eye to the screen and a line from the eye to the top of the screen) are within the range of vertical viewing angles for the seats located in the back half of the seats in the auditorium.

OR,

d. in theaters with more than 300 seats and where dispersion is required, all ADA-mandated wheelchair locations and companion seating is placed in the rear 60% of the auditorium or, in the alternative, one-half of the ADA-mandated wheelchair locations and companion seats is placed in the rear 50% of the auditorium and the remainder of ADA-mandated wheelchair spaces are dispersed in accordance with Standard 4.33.3, but shall not be located in the first row. Where Cinemark provides wheelchair spaces in excess of the number required under the ADA Standards, such spaces may be located within the discretion of Cinemark and nothing in this Consent Order is intended to apply to such spaces.

OR,

e. the design is submitted via overnight courier for review and approval by the Department. The United States will respond to any such request within thirty (30) days of receipt of such plans, although the DOJ may request, in writing prior to the expiration of the thirty (30) day period, an extension of thirty (30) days. If Cinemark does not receive a response to its request at the end of the thirty day period, or at the end the sixty (60) day period if an extension is timely requested by the Department and transmitted to Cinemark by telefacsimile or express mail delivery, such plans will be deemed approved by the DOJ and Cinemark may proceed to build theaters according to the plans submitted to the United States.  If Cinemark declines to submit a proposed plan, or if it chooses to build a theater design rejected by the United States in this review process, that specific theater design shall not be covered by the safe harbor provisions of this Consent Order, see § 2.4, and if the Department believes that such design violates the wheelchair placement provisions of the ADA Standards, the Department may seek remedy in this Court to correct such non-conforming design.

6.10     Cinemark Future Construction Theaters that are built in conformity with the seating plans for Future Construction Theaters, or with the provisions of this Consent Order for Future Construction Theaters satisfy the requirements Standard 4.33.3, and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004, to (a) provide wheelchair spaces with lines of sight comparable to those for members of the general public, and (b) include wheelchair spaces as an integral part of the fixed seating plan, (c) provide the appropriate depth for cross aisles to wheelchair spaces, and (d) provide any applicable dispersion requirements.

6.11    Nothing in Section 6 of the Consent Order shall limit the placement of any additional wheelchair spaces required by state or local codes beyond those mandated under the ADA Standard 4.33.3 and §§ 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004 for a particular auditorium.

7.       Required Time Frames for Implementing This Consent Order

7.1     Modified Theaters: The modifications to Modified Theaters required under this Consent Order in Sections 3.1-3.11 shall be implemented within five years of the Effective Date of this Consent Order, consistent with the following:

a.      Modifications to Cinemark at Macedonia and Canton Tinseltown 15 shall be completed within 12 months from the Effective Date of this Consent Order.

b.      Modifications to Youngstown Tinseltown 7 and one other of the Modified Theaters shall be completed within 24 months from the Effective Date of this Consent Order.

c.      Modifications to two of the Modified Theaters not modified in accordance with Section 7.1(a) or (b) above shall be completed within 36 months from the Effective Date of this Consent Order.

d.      Modifications to two of the Modified Theaters not modified in accordance with Section 7.1(a)-(c) above shall be completed within 48 months from the Effective Date of this Consent Order.

e.      Modifications to the remaining Modified Theaters shall be completed within 60 months from the Effective Date of this Consent Order.

7.2     Modifications to Modified Theaters as required under Section 3.12 of this Consent Order shall be implemented within five years of the Effective Date of this Consent Order, consistent with the following:

(1)      One-fifth (1/5) of the theaters shall be done within the first 12 months from the Effective Date of this Consent Order.

(2)      Two-fifths (2/5) of the theaters shall be done within the first 24 months from the Effective Date of this Consent Order.

(3)      Three-fifths (3/5) of the theaters shall be done within the first 36 months from the Effective Date of this Consent Order.

(4)      Four-fifths (4/5) of the theaters shall be done within the first 48 months from the Effective Date of this Consent Order.

(5)      Modifications at all of the theaters shall be completed within 60 months from the Effective Date of this Consent Order.

7.3     Future Construction.
The requirements for Future Construction Theaters are effective immediately upon the Effective Date of this Consent Order.

8.  Notice, Reporting, and Monitoring Requirements   

8.1  Within twelve months of the Effective Date of this Consent Order, and every twelve months thereafter for the Term of this Consent Order, Cinemark shall provide written notice to the DOJ identifying the theater location(s) at which modifications required by this Consent Order were performed and identifying any newly constructed theater(s). The written notice shall also include architectural plans, where available, and photographs of the modifications made at each Modified  Theater during the prior one year period.

8.2     Throughout the Term of this Consent Order, the DOJ may, upon reasonable notice to Cinemark, review compliance with this Consent Order by sending representatives to inspect any Cinemark stadium-style movie theater, either existing or under construction, that is covered by this Consent Order. Any such inspections shall be conducted (i) during non-show times within ten (10) business days of such notice and (ii) shall be limited to the requirements of the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements under this Consent Order. Cinemark shall have the right to have a corporate representative present at any such inspection. In addition, Cinemark shall provide the DOJ with architectural drawings of planned theaters not yet under construction upon request and reasonable notice, at the DOJ's expense.

8.3     The United States may review compliance with this Consent Order at any time. If the United States believes that Cinemark is not in compliance with this Consent Order or any requirement contained herein, the United States agrees to notify Cinemark in writing of the alleged noncompliance and attempt to seek a reasonable resolution of the matter with Cinemark. Cinemark shall have sixty (60) days in which to respond to such written notice and provide objections or a schedule for correction of agreed upon deficiencies. If the parties are unable to reach a resolution within sixty (60) days after the United States has received Cinemark's response, the United States may seek appropriate relief from this Court. Failure by the United States to seek enforcement of this entire Consent Order, or any provision thereof, with regard to any deadline or any other provision herein, shall not be construed as a waiver of the United States' right to do so with regard to other deadlines and provisions of this Consent Order.

8.4     All notices, correspondences and reports required by this Consent Order shall be sent by overnight courier to the parties at the following addresses or to such other person as the parties may designate in writing in the future:

For notices to the Department:

John L. Wodatch, Chief
Disability Rights Section
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530

For notices to Cinemark:

Michael Cavalier
Vice President-General Counsel
Cinemark USA, Inc.
3900 Dallas Parkway, #500
Plano, Texas 75093

and

Laura M. Franze
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675.

9. Miscellaneous

9.1     Entire Consent Order. This Consent Order and its exhibits and appendices constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Consent Order, shall be enforceable regarding the matters raised herein.

9.2     Public Document. This Consent Order is a public document. A copy of this document, and any information contained herein, may be made available to any person.

9.3     Consent Order Binding on Parties and Successors in Interest. This Consent Order is binding on the United States, and Cinemark USA, Inc. and successors in interest. Cinemark has a duty to so notify all such successors in interest of the existence and terms of this Consent Order. If Cinemark sells, closes, or ceases operations at a particular theater covered by this Consent Order, prior to the end of the five-year term of this Consent Order, Cinemark shall have no further obligation to make modifications at that particular theater.

9.4     Other Companies. The terms of this Consent Order shall not apply to any other movie theater company except as provided by paragraph 9.3, above.

9.5     Term of the Consent Order. This Consent Order shall be in full force and effect for a period of five (5) years after the Effective Date of this Consent Order. The Court shall retain jurisdiction of this action to enforce provisions of this Consent Order during those five (5) years.

9.6     Severability. If any term of this Consent Order is determined by any court to be unenforceable, the other terms of this Consent Order shall nonetheless remain in full force and effect.

9.7     Signatories Bind Parties. Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Consent Order.

9.8     Force Majeure. Whenever a day is appointed herein on which, or a period of time is appointed within which, either party is required to do or complete any act, matter, or thing, the time for doing or completion thereof shall be extended by a period of time equal to the number of days on or during which either party is prevented from, or is unreasonably interfered with, the doing or completion of such act, matter, or thing as a result of strikes, lock-outs, embargoes, unavailability of labor or materials, wars, insurrections, rebellions, declarations of national emergencies, acts of God, or other causes beyond the reasonable control of the party. Financial inability to satisfy the terms of the agreement is not included within this exception.

Dated:       Nov. 5, 2004     

COUNSEL FOR THE UNITED STATES:

By:



__________________________
ALEXANDER ACOSTA, Assistant Attorney General
JOHN L. WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
PHILIP L. BREEN, Special Litigation Counsel
PHYLLIS M. COHEN, Trial Attorney
KATHLEEN S. DEVINE, Trial Attorney
ANGELA N. LIANG, Trial Attorney
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Telephone: (202) 307-0480
Facsimile: (202) 307-1197/98
Email:kathleen.s.devine@usdoj.gov mailto [sic]: phyllis.cohen@usdoj.gov
Counsel for Plaintiff United States of America

Dated:       Nov. 5, 2004     

CINEMARK, USA, Inc.:

By:



__________________________
MICHAEL CAVALIER
Vice President-General Counsel
Cinemark USA, Inc.
3900 Dallas Parkway, #500
Plano, Texas 75093
Telephone: (972)665-1108
Facsimile: (972)665-1003
Email: mcavalier@cinemark.com

Pursuant to stipulation, and for good case shown, IT IS SO ORDERED.

Dated:       Nov. 15, 2004     

_________________________
Hon. DONALD C. NUGENT
United States District Court Northern District of Ohio

APPENDIX A

DESIGNED THEATERS

Cinemark
280 Uptown Blvd.
Cedar Hill, TX 75104

Cinemark
4230 St. Michael Dr.
Texarkana, TX 75503

Cinemark
2825 Wind River Lane
Denton, TX 76210

Cinemark (5 screen)
Woodlands, TX

Cinemark
3310 Silverlake Village Drive
Pearland, TX 77581

Cinemark
Eagle Pass, TX

Cinemark (12 screen)
Rockwall, TX

Cinemark
750 Great Northern Blvd.
Helena, MT 59601

Cinemark
Pittsburgh, PA

APPENDIX B

PLANS FOR DESIGNED THEATERS

APPENDIX C

CINEMARK EXISTING STADIUM-STYLE THEATERS

Arkansas

Tinseltown Benton
17314 I-30
Benton, AR 72015

Arizona

Cinemark (Sierra Vista)
2175 El Mercado Loop
Sierra Vista, AZ 85635

California

Cinemark 22
2600 West Avenue I
Lancaster, CA 93536

Cinemark Chico
801 East Avenue
Chico, CA 95926

Cinemark 14
99 South Pine Avenue
Long Beach, CA 90802

Cinemark Movies 14
West Valley Mall
3300 N. Naglee Rd.
Tracy, CA 95376

Colorado

Cinemark Tinseltown
1545 E. Cheyenne Mountain Blvd
Colorado Springs, CO 80906

Tinseltown Pueblo
4140 N. Freeway
Pueblo, CO 81008

Cinemark Carefree Circle
3305 Cinema Point
Colorado Springs, CO 80922

Cinemark Fort Collins
4721 South Timberline Rd.
Fort Collins, CO 80525

Cinemark at Greeley Mall
2160 Greeley Mall
Greeley, CO 80631

Florida

Cinemark Orlando
Festival Bay
5150 International Drive
Orlando, FL 32819

Tinseltown USA
4535 Southside Blvd.
Jacksonville, FL 32216

Georgia

Tinseltown USA
134 Pavilion Parkway
Fayetteville, GA 30214

Illinois

Cinemark Melrose Park
1001 West North Avenue
Melrose Park, IL 60160

Tinseltown USA
320 South Lincoln Way
North Aurora, IL 60542

Cinemark (Woodridge)
6500 Route 53
Woodridge, IL 60517

Indiana

Movies 14
910 West Edison
Mishawaka, IN 46545

Kansas

Cinemark (Merriam)
5500 Antioch
Merriam, KS 66202

Kentucky

Tinseltown Louisville
4400 Towne Center Drive
Louisville, KY 40241

Movies 10
Woodhill Mall
425 Codell Dr.
Lexington, KY 40509

Kentucky Oaks Mall (II)
5159 Hinkleville Rd., Unit #010
Paducah, KY 42001

Louisiana

Tinseltown USA
Seigen Park Mall
10955 N. Mall Dr.
Baton Rouge, LA 70810

Tinseltown Shreveport
8400 Millicent Way
Shreveport, LA 71105

Tinseltown USA
220 Blanchard St.
West Monroe, LA 71291

Cinemark 14
548 West Prien Lake Rd.
Lake Charles, LA 70601

Massachusetts

Hampshire Mall 12
367 Russell St.
Hadley, MA 1035

Michigan

Cinemark (Rivertown Mall)
3728 River Town Pkwy. SW
Grandville, MI 49418

Mississippi

Tinseltown (Jackson)
411 Riverwind Dr.
Pearl, MS 39208

Cinemark (Gulfport)
15171 Community Rd.
Gulfport, MS 39503

Missouri

Cinemark (The Palace)
500 Nichols Rd.
Kansas City, MO 64112

New Jersey

Cinemark 16
711 Evesham
Lions Head Plaza
Somerdale, NJ 08083-3000

New York

Tinseltown (Gates)
2291 Buffalo Rd.
Rochester, NY 14624

North Carolina

Tinseltown
305 Faith Rd.
Salisbury, NC 28146

Cinemark Asheboro
400 Randolph Mall
Asheboro, NC 27203

Ohio

Tinseltown USA
Southern Park Mall
7401 Market St. #575
Boardman, OH 44512

Tinseltown USA
4720 Mega St. NW
North Canton, OH 44720

Movies 16
Stoneridge Plaza Shopping Center
323 Stoneridge Lane
Gahanna, OH 43230

Cinemark (Macedonia)
8161 Macedonia Commons Blvd.
Macedonia, OH 44056

Cinemark (Cleveland)
6001 Canal Rd.
Valley View, OH 44125

Cinemark 14
Mansfield Town Center
2355 Walker Lake Rd.
Ontario, OH 44906

Oklahoma

Tinseltown USA
6001 North MLK Blvd.
Oklahoma City, OK 73111-7505

Cinemark Tulsa
10802 E. 71st South
Tulsa, OK 74133

Oregon

Tinseltown
651 Medford Center
Medford, OR 97501

Cinemark (Springfield)
2900 Gateway
Springfield, OR 97477

Pennsylvania

Cinemark (Moosic)
40 Glenmaura National Blvd.
Moosic, PA 18507

Cinemark Beaver Valley
99 Wagner Rd.
Monaca, PA 15061

Tinseltown USA
1910 Rotunda Dr.
Erie, PA 16509

South Carolina

Cinemark at Coastal Grand
Coastal Grand Mall
2100 Coastal Grand Circle
Myrtle Beach, SC 29577

Tennessee

Tinseltown
755 West Main St.
Oak Ridge, TN 37830

Texas

Hollywood USA
1401 Earl Rudder Frwy. So.
College Station, TX 77845

Tinseltown USA
15436 FM 1825
Pflugerville, TX 78660

Tinseltown (Mission)
2422 East Expressway 83
Mission, TX 78572

Tinseltown Austin
5501 S. IH-35 North
Austin, TX 78744

Tinseltown Lubbock
2535 82nd St.
Lubbock, TX 79423

Tinseltown San Angelo
4425 Sherwood Way
San Angelo, TX 76901

Cinemark 17
11819 Webb Chapel Rd.
Dallas, TX 75234

Tinseltown Movies 17
911 State hwy. 114 West
Grapevine, TX 76051

Cinemark 19
1030 W. Grand Parkway North
Katy, TX 77449

Cinemark (The Legacy)
7201 Central Expressway
Plano, TX 75025

Movies 17
100 W. Nolana Loop
McAllen, TX 78504

Tinseltown Movies 16
5218 Silverberry
Corpus Christi, TX 78416

Cinemark (Harlingen)
401 S. Expressway 83
Harlingen, TX 78550

Tinseltown Movies 17
1600 Lake Robbins Dr.
The Woodlands, TX 77380
Tinseltown USA
11855 Gateway Blvd. West
El Paso, TX 79936

Cinemark El Paso 12
7440 Remcon Circle
El Paso, TX 79912

Tinseltown USA
3855 Interstate 10 South
Beaumont, TX 77705

Tinseltown USA
Six Flags Mall
2815 E. Division St.
Arlington, TX 76011

Tinseltown USA
3800 Dallas Parkway
Plano, TX 75093

Cinemark Brownsville
2370 N. Expressway
Brownsville, TX 78521

Cinemark Victoria
Victoria Mall
7806 Navarro
Victoria, TX 77904

Cinemark Sherman
3310 Town Center St.
Sherman, TX 75091

Cinemark Webster
20915 Gulf Freeway
Webster, TX 77598

Hollywood USA
9100 Canyon Drive
Amarillo, TX 79119

Tinseltown Westchase
Beltway 8
3600 West Sam Houston Pkwy. South
Houston, TX 77042

Tinseltown USA 290
12920 NW Freeway
Houston, TX 77040

Tinseltown USA
11450 East Freeway
Jacinto City, TX 77029

Hollywood USA
2101 East Beltway 8
Pasadena, TX 77503

Barton Creek Cinema
2224 B Walsh Tarlton Rd.
Austin, TX 78746

Utah

Tinseltown USA
Layton Hills Mall
720 West 1500 North
Layton, UT 84041

Tinseltown Newgate
3651 Wall Ave., Suite 1038
Ogden, UT 84405

Cinemark (Provo)
1200 Town Center Blvd., Suite 2050
Provo, UT 84604

Cinemark (West Jordan)
7301 S. Jordan Landing
West Jordan, UT 84088

Cinemark 12 American Fork
The Meadows
715 West 180 North
American Fork, UT 84003

Holiday Village 4
1776 Park Avenue #4
Box 770-309
Park City, UT 84060

Virginia

Cinemark Norfolk
880 North Military Hwy.
Norfolk, VA 23502

Tinseltown (Bristol)
3004 Linden Dr.
Bristol, VA 24201

Wisconsin

Tinseltown Kenosha
7101 70th Court
Kenosha, WI 53142

APPENDIX D

PLANS FOR FUTURE CONSTRUCTION THEATERS

APPENDIX E

SEATING PLANS FOR MODIFIED THEATERS