[nfbmi-talk] this case goes beyond theater access

[joe harcz Comcast]

FOR PUBLICATION 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ARIZONA, ex rel. Terry ü 

Goddard, the Attorney General, 

and THE CIVIL RIGHTS 

DIVISION OF THE ARIZONA 

DEPARTMENT OF LAW, 

Plaintiffs-Appellants, 

and 

FREDERICK LINDSTROM by and 

No. 08-16075 

through his legal guardian, RACHEL 

D.C. No. LINDSTROM, and LARRY WANGER, 

ý 2:07-cv-00703-ROSPlaintiff-Intervenors-Appellants. 

OPINION 

v. HARKINS AMUSEMENT ENTERPRISES,

INC.; HARKINS ENTERPRISES INC.;

HARKINS CAMEL VIEW THEATRES,

INC.; HARKINS THEATRES, INC.;

HARKINS CENTERPOINT, INC.;

HARKINS SHEA CINEMAS, LLC;

HARKINS SEDONA CINEMAS, LLC; ?

6473

6474 

ARIZONA v. HARKINS AMUSEMENT 

Table with 2 columns and 20 rowsHARKINS CINEMAS, LLC; HARKINS ü ARIZONA MILLS CINEMAS, LLC; 

HARKINS METRO CENTER CINEMAS, 

LLC; HARKINS REEL DEALS, LLC; 

HARKINS PHOENIX CINEMAS, LLC; 

HARKINS CHANDLER FASHION 

CENTER CINEMAS, LLC; HARKINS 

SCOTTSDALE 101 CINEMAS, LLC; 

HARKINS YUMA PALMS, LLC; 

HARKINS TEMPE MARKETPLACE, 

LLC; HARKINS ADMINISTRATIVE 

SERVICES, INC.; RED’S MOVIOLA I, ý LLC; RED’S MOVIOLA, INC.; 

HARKINS SPECTRUM, LLC; HARKINS 

CASA GRANDE, LLC; HARKINS 

INVESTMENTS, LLC; HARKINS PARKE 

WEST, LLC; HARKINS SANTAN 

VILLAGE, LLC; HARKINS TUCSON 

SPECTRUM, LLC; HARKINS 

CHANDLER CROSSROADS, LLC; 

HARKINS NORTERRA, LLC, 

Table endDefendants-Appellees. þ 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

January 13, 2010—San Francisco, California

Filed April 30, 2010

Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and

Richard R. Clifton, Circuit Judges.

ARIZONA v. HARKINS AMUSEMENT 

6475 

Opinion by Judge Hug 

ARIZONA v. HARKINS AMUSEMENT 

6477 

COUNSEL 

Rose A. Daly-Rooney and Cathleen M. Dooley, Assistant 

Attorneys General, Tucson, Arizona, for the appellants. Jose 

de Jesus V. Rico, Arizona Center for Disability Law, Tucson, 

Arizona, for the appellants-intervenors. 

John J. Egbert, The Collier Center, Phoenix, Arizona, and 

Richard Lustiger, General Counsel, Harkins Theatres, Scottsdale, Arizona, for the appellees. 

Brian East, Advocacy, Inc., Austin, Texas; Linda M. Dardarian, Goldstein, Demchak, Baller, Borgen & Dardarian, 

Oakland, California; John F. Stanton, Howrey LLP, Washington, D.C.; John F. Waldo, Washington State Communication 

Access Project, Bainbridge Island, Washington; Marc P. 

Charmatz, National Association of the Deaf Law and Advocacy Center, Silver Spring, Maryland; Angela M. Miller, 

Attorney, Civil Rights Division, Department of Justice, Washington, D.C.; M. Brett Burns, Hunton & Williams LLP, San 

Francisco, California; Steven John Fellman, GKG Law, PC, 

Washington, D.C., for the amici curiae. 

OPINION 

HUG, Circuit Judge: 

The State of Arizona and Plaintiff-Intervenors Frederick 

Lindstrom and Larry Wanger brought this suit under the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§§ 12101-12213, and the Arizonans with Disabilities Act 

(“AzDA”), Ariz. Rev. Stat., §§ 41-1492-41-1492.11, to remedy what they allege are discriminatory accommodations at 

movie theaters owned by Harkins Amusement Enterprises, 

Inc. and its affiliates (“Harkins”). Plaintiffs contend that 

Harkins’s failure to provide (1) open or closed captioning for 

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ARIZONA v. HARKINS AMUSEMENT 

hearing impaired patrons and (2) audio descriptions of a 

movie’s visual elements for visually impaired patrons violates 

the ADA and the AzDA. The district court granted Harkins’s 

motion to dismiss for failure to state a claim on the basis that 

the ADA and the AzDA do not require movie theaters to alter 

the content of their services. Because closed captioning and 

audio descriptions are correctly classified as “auxiliary aids 

and services” that a movie theater may be required to provide 

under the ADA, we conclude the district court erred in finding 

that these services are foreclosed as a matter of law. 

I. Plaintiff-Intervenor Frederick Lindstrom has hearing loss 

so severe that he cannot hear or discriminate speech. Because 

of his hearing loss, Lindstrom does not fully appreciate a 

movie’s soundtrack. Lindstrom alleges that three technologies 

would allow him to more fully enjoy movies despite his hearing impairment. 

The first two technologies employ open captioning, a technique that displays captions on a movie screen for an entire 

audience. One type of open captioning is achieved by engraving text onto each individual frame of a film. Only a limited 

number of films are engraved with captions. A second method 

of open captioning uses open caption projection systems, 

which project captions through a separate projector onto a 

movie screen. Movie theaters may turn open captioning projection systems on or off, depending on whether a patron has 

requested captions. 

The third technology employs closed captioning, a technique that displays captions to individual viewers using a 

seat-based captioning device. One brand of seat-based captioning is Rear Window Captioning, which displays captions 

from a computer disc that is synchronized with a movie. As 

a movie appears on a theater’s screen, captions are transmitted 

to an LED data panel installed on the rear wall of a theater, 

ARIZONA v. HARKINS AMUSEMENT 

6479 

where the text is reversed. Patrons use portable, clear reflector 

panels that make the captions appear superimposed on or 

beneath the movie screen. There are other seat-based captioning systems as well, such as wearable caption displays. 

Major movie studios distribute a significant number of 

wide-release movies with captions for use with Rear Window 

Captioning and open caption projection systems. However, 

accessibility to these services is limited to theaters that have 

equipment for Rear Window Captioning or open caption projection systems. 

Plaintiff-Intervenor Larry Wanger is totally blind in his 

right eye and has corrected visual acuity of less than 20/400 

in his left eye. Because of his impairment, Wanger cannot see 

the visual aspects of a movie. Wanger alleges that a technology known as “descriptive narration” would allow him to 

appreciate visual aspects of a movie by using a headset. 

Descriptive narration enables people to hear information 

about key visual aspects of a movie through descriptions of 

scenery, facial expressions, costumes, action settings, and 

scene changes during natural pauses in dialogue. Major movie 

studios distribute wide-release movies with descriptive narration capability, but accessibility to this service is limited to 

theaters that have equipment for audio descriptions. 

Harkins owns and operates 21 theaters with 262 auditoriums in Arizona. Harkins shows movies with engraved open 

captioning, but only at limited times at two theater locations. 

None of Harkins’s Arizona theaters have equipment for 

descriptive narration. 

In August 2005, Larry Wanger visited Harkins’s North 

Valley 16 Theaters to see a movie with descriptive narration. 

A Harkins employee informed him that the theater did not 

have descriptive narration. On December 14, 2005, Rachel 

Lindstrom, Frederick Lindstrom’s mother, called the box 

office of North Valley 16 Theaters to find a captioned show

6480 

ARIZONA v. HARKINS AMUSEMENT 

ing of King Kong. Ms. Lindstrom was told that there were no 

open-captioned showings of King Kong or auxiliary aids to 

display closed captioning at any of the theater’s auditoriums. 

Larry Wanger and Rachel Lindstrom, on behalf of her son, 

filed complaints of public accommodation discrimination with 

Arizona’s Civil Rights Division. After an investigation, the 

Division found that there was reasonable cause to believe that 

Harkins discriminated against Frederick Lindstrom and Larry 

Wanger by denying full and equal enjoyment of Harkins’s 

services in violation of the AzDA. 

The State of Arizona subsequently filed suit in Arizona 

Superior Court alleging violations of the AzDA on behalf of 

Frederick Lindstrom, Larry Wanger, and a putative class of 

similarly situated persons. Lindstrom and Wanger also joined 

the suit as plaintiff-intervenors alleging violations of the ADA 

and AzDA. Harkins removed the case to the United States 

District Court for the District of Arizona and moved to dismiss the case pursuant to Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim. The district court granted 

the motion in a published March 28, 2008, order, Arizona v. 

Harkins Amusement Enterprises, Inc., 548 F. Supp. 2d 723 

(D. Ariz. 2008), which Plaintiffs now appeal. II. We review de novo the district court’s dismissal for failure 

to state a claim. Siracusano v. Matrixx Initiatives, Inc., 585 

F.3d 1167, 1177 (9th Cir. 2009). We accept the Plaintiffs’ 

allegations as true and construe them in the light most favorable to Plaintiffs. Id. Dismissal is inappropriate unless Plaintiffs’ complaint fails to state a claim for relief that is plausible 

on its face. Id. 

A. Americans with Disabilities Act [1] Congress enacted the ADA “to provide clear, strong, 

consistent, enforceable standards addressing discrimination ARIZONA v. HARKINS AMUSEMENT 

6481 

against individuals with disabilities . . . .” 42 U.S.C. 

§ 12101(b)(2). Title III of the ADA prohibits discrimination 

by public accommodations, prescribing generally that 

No 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 by any person who owns, leases (or leases to), 

or operates a place of public accommodation. 

42 U.S.C. § 12182(a). To prevail on a discrimination claim 

under Title III, a plaintiff must show that: (1) he is disabled 

within the meaning of the ADA; (2) the defendant is a private 

entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability. Molski v. M.J. 

Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). The parties do 

not dispute that Plaintiffs Lingstrom and Wanger are disabled 

or that Harkins owns a place of public accommodation. This 

appeal centers on whether Plaintiffs have plausibly alleged 

that Harkins discriminated against them on account of their 

disabilities. 

[2] Title 42 U.S.C. § 12182(b)(2)(A)(iii) provides that discrimination by public accommodations includes “a failure to 

take such steps as 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 entity 

can demonstrate that taking such steps would fundamentally 

alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an 

undue burden.” [3] The ADA defines “auxiliary aids and services”: The term “auxiliary aids and services” includes— 

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ARIZONA v. HARKINS AMUSEMENT 

(A) qualified interpreters or other effective methods 

of making aurally delivered materials available to 

individuals with hearing impairments; (B) qualified readers, taped texts, or other effective 

methods of making visually delivered materials 

available to individuals with visual impairments; (C) acquisition or modification of equipment or 

devices; and (D) other similar services and actions. 42 U.S.C. § 12103(1) (emphases added). Federal regulations 

provide more examples: 

The term “auxiliary aids and services” includes— 

(1) Qualified interpreters, notetakers, computer-

aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, 

assistive listening systems, telephones compatible 

with hearing aids, closed caption decoders, open and 

closed captioning, telecommunications devices for 

deaf persons (TDD’s), videotext displays, or other 

effective methods of making aurally delivered materials available to individuals with hearing impairments; (2) Qualified readers, taped texts, audio recordings, 

Brailled materials, large print materials, or other 

effective methods of making visually delivered materials available to individuals with visual impairments; (3) Acquisition or modification of equipment or 

devices; and ARIZONA v. HARKINS AMUSEMENT 

6483 

(4) Other similar services and actions. 28 C.F.R. § 36.303(b) (emphases added). 

[4] Movie captioning and audio descriptions clearly are 

auxiliary aids and services. Captioning and audio descriptions 

are “effective methods of making [aurally or visually] delivered materials available to individuals with [hearing and 

visual] impairments.” 42 U.S.C. § 12103(1)(A)-(B); 28 C.F.R. 

§ 36.303(b)(1)-(2); see Duvall v. County of Kitsap, 260 F.3d 

1124, 1138 (9th Cir. 2001) (hearing-impaired plaintiff survives summary judgment with claim that superior court failed 

to provide real-time captioning of oral testimony). Indeed, 

“open and closed captioning” and “audio recordings” are 

listed as examples of auxiliary aids and services in the regulations. The district court reasoned that captioning and descriptive narration do not fall within § 12182(b)(2)(A)(iii)’s 

mandate because, under Weyer v. Twentieth Century Fox Film 

Corp., 198 F.3d 1104, 1115 (9th Cir. 2000), “the scope of the 

ADA’s prohibition against discrimination under § 12182(a) is 

limited to the goods and services offered by an entity.” 

Harkins, 548 F. Supp. 2d at 727-28 (internal quotation marks 

omitted). In other words, the ADA “does not require provision of different goods or services, just nondiscriminatory 

enjoyment of those that are provided.” Weyer, 198 F.3d at 

1115. We now turn to Weyer and its bearing on this case. Weyer concerned an insured’s challenge to her long-term 

disability insurance policy’s limit on mental illness benefits 

that did not similarly limit non-mental illness benefits. 198 

F.3d at 1107-08. The plaintiff alleged that the insurer and her 

employer violated the ADA by offering and administering a 

plan that discriminated against those with mental disabilities. 

Id. at 1108. Affirming the district court’s grant of summary 

judgment, we held that the insurer could not be held liable 

under Title III because, among other reasons, Title III does 

not address the terms of policies that the insurer sold. Id. at 

1115. We reasoned: 

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ARIZONA v. HARKINS AMUSEMENT 

Title III prohibits discrimination in the enjoyment of 

the “goods, services, facilities, privileges, advantages, or accommodations of any place of public 

accommodation.” The ordinary meaning of this language is that whatever goods or services the place 

provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and 

services. This language does not require provision of 

different goods or services, just nondiscriminatory 

enjoyment of those that are provided. Thus, a bookstore cannot discriminate against disabled people in 

granting access, but need not assure that the books 

are available in Braille as well as print. Likewise, an 

insurance office must be physically accessible to the 

disabled but need not provide insurance that treats 

the disabled equally with the non-disabled. 

Id. (internal quotation marks, brackets, and footnote omitted). 

We further concluded that the plaintiff’s Title III claim 

against her employer, Fox, similarly failed: 

[T]here is no discrimination under the Act where disabled individuals are given the same opportunity as 

everyone else, so insurance distinctions that apply 

equally to all employees cannot be discriminatory. 

Fox did not treat Weyer any differently because of 

her disability. It simply gave her the same opportunity that it gave all the rest of its employees—buy 

into the group policy with the limitation at the 

cheaper, group price or buy her own individual 

insurance coverage without the limitation at whatever the market price may be. 

Id. at 1116 (footnote omitted). Analogizing from Weyer, 

Harkins argues that the ADA does not require it to alter the 

content of its services by offering captions and descriptive 

narration; rather, the ADA only requires it to offer all persons 

equal access to its services. 

ARIZONA v. HARKINS AMUSEMENT 

6485 

[5] We disagree with Harkins that captioning and descriptive narration fall outside the ADA as a matter of law. As 

stated previously, 42 U.S.C. § 12182(b)(2)(A)(iii) provides 

that discrimination includes “a failure to take such steps as 

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 . . . .” (emphasis added). In arguing that the ADA’s requirement of auxiliary aids and services 

is limited by Weyer, Harkins puts the cart before the horse: 

Weyer does not limit subsection 42 U.S.C. § 12182(b)(2) 

(A)(iii)’s requirement that a public accommodation provide 

auxiliary aids and services; the requirement that establishments provide auxiliary aids and services limits Weyer’s general rule that public accommodations do not have to provide 

different services for the disabled. Although Weyer may be 

controlling in the provision of goods and services generally, 

here Plaintiffs are seeking an auxiliary aid, which is specifically mandated by the ADA to prevent discrimination of the 

disabled. For similar reasons, Harkins’s reliance on McNeil v. Time 

Insurance Co., 205 F.3d 179 (5th Cir. 2000), is misplaced. In 

McNeil, the plaintiff purchased a health insurance policy that 

limited coverage for AIDS-related benefits to $10,000 during 

the first two years of the policy. Id. at 182. Within the first 

year of the policy, the plaintiff was diagnosed with AIDS. Id. 

When the insurance company refused to pay more than 

$10,000 of his medical bills, the plaintiff brought suit under 

Title III of the ADA. Id. Affirming a grant of summary judgment, the Fifth Circuit held that the plain language of Title III 

“demonstrates that a business is not required to alter or modify the goods or services it offers to satisfy Title III”; therefore, because the policy offered the same terms to those 

without AIDS, the policy’s limit did not discriminate on the 

basis of basis of disability. See id. at 186, 188-89. 

6486 

ARIZONA v. HARKINS AMUSEMENT 

The McNeil court also noted that “[t]he provisions in 

§§ 12182(b)(1)(A)(i)-(iii) concerning the opportunity to benefit from or to participate in a good or service do not imply that 

the goods or services must be modified to ensure that opportunity or benefit. Rather, this section only refers to impediments 

that stand in the way of a person’s ability to enjoy that good 

or service in the form that the establishment normally provides it.” Id. at 186 n.9. The district court in this case relied 

on this passage to reason that § 12182(b)(2)(A)(iii)1 does not 

require accommodations to offer different services. Harkins, 

548 F. Supp. 2d at 728. 

The district court’s reasoning effectively eliminates the 

duty of a public accommodation to provide auxiliary aids and 

services. By its very definition, an auxiliary aid or service is 

an additional and different service that establishments must 

offer the disabled. For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing 

that everyone—including the wheelchair bound—has equal 

access to the steps. And an office building could not avoid 

having to put Braille numbering on the buttons in its elevator 

by arguing that everyone—including the blind—has equal 

access to the written text. Although Weyer and McNeil support the proposition that the content of a good or service need 

not be altered under the ADA, neither of those decisions turn 

on whether a place of public accommodation must provide an 

auxiliary aid or service that falls within the mandate of 

§ 12182(b)(2)(A)(iii). 

[6] Harkins also contends that regulations promulgated by 

the Department of Justice defeat any requirement that Harkins 

provide captioning or descriptive narration. In particular, 

Harkins points to the DOJ’s Preamble to Regulation of Nondiscrimination on the Basis of Disability by Public Accommo1The district court may have overlooked that McNeil referenced 

§§ 12182(b)(1)(A)(i)-(iii) and not § 12182(b)(2)(A)(iii). See Harkins, 548 

F. Supp. 2d at 728. ARIZONA v. HARKINS AMUSEMENT 

6487 

dations and in Commercial Facilities, which provides 

commentary on Title 28, part 36 of the Code of Federal Regulations. There, the commentary plainly states that “[m]ovie 

theaters are not required by § 36.303 to present open-

captioned films.” 28 C.F.R. pt. 36, App. B(C), at 727 (2009). 

Plaintiffs dispute that the commentary precludes a court 

from requiring open captioning through open caption projection systems, which did not exist when the commentary was 

first published in 1991. Plaintiffs cite to two authorities in an 

effort to distinguish between engraved open captioning and 

open caption projection systems. The first, 28 C.F.R. 

§ 36.307(a), provides, “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.” Plaintiffs argue that the commentary’s provision concerning open captioning is no longer 

viable now that open captioning is available through open 

caption projection systems, which are not special goods. 

Plaintiffs also point to a House Report suggesting that courts 

should reconsider the auxiliary aids and services required by 

the ADA as new technology develops: 

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 undue burdens on such 

entities. 

H.R. Rep. No. 101-485(II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391. [7] We disagree with Plaintiffs that the DOJ’s commentary 

has been superceded by technological development. If this 6488 

ARIZONA v. HARKINS AMUSEMENT 

court were to accept Plaintiffs’ interpretation, the DOJ’s 

detailed interpretive guidance could be circumvented whenever a new technology for providing open captioning becomes 

available. Entities such as Harkins should be able to rely on 

the plain import of the DOJ’s commentary until it is revised. 

Because the commentary to Title 28, part 36.303 states that 

open captions are not required by § 36.303, we conclude that 

open captioning is not mandated by the ADA as a matter of 

law.2 

[8] However, the DOJ’s commentary does not insulate 

Harkins from providing closed captioning. The commentary 

does not mention closed captioning, and the difference 

between open and closed captioning is more than linguistic. 

Only individual viewers see closed captions, whereas the 

entire audience sees open captions and is likely distracted by 

them. Thus, unlike open captioning, closed captioning is not 

foreclosed by the commentary. See also 28 C.F.R. 

§ 36.303(b)(1) (defining “auxiliary aids and services” to 

include “closed captioning”). In an effort to avoid providing captioning, Harkins points 

to two interpretations of the ADA contained in the Federal 

Register. The first interpretation comes from a July 23, 2004, 

2Although the DOJ’s interpretation appears to conflict with the 28 

C.F.R. § 36.303(b)(1)’s inclusion of open captioning as an example of 

“auxiliary aids and services,” the commentary is nonetheless entitled to 

deference in this case. As stated by the Supreme Court in Thomas Jefferson University v. Shalala, we must defer to an agency’s interpretation of 

its own regulation unless an “alternative reading is compelled by the regulation’s plain language or by other indications of [the agency’s] intent at 

the time of the regulation’s promulgation.” 512 U.S. 504, 512 (1994). 

Although 28 C.F.R. § 36.303(b)(1) lists open captioning as an example of 

auxiliary aids and services, not every auxiliary aid and service is mandated 

by the ADA. Establishments can avoid providing auxiliary aids and services by showing that they fundamentally alter its service or impose an 

undue burden. 28 C.F.R. § 36.303(a). In the context of open captioning, 

the DOJ could have reasonably concluded that open captioning would 

constitute a fundamental alteration of the movie screening. ARIZONA v. HARKINS AMUSEMENT 

6489 

set of guidelines published by the Architectural and Transportation Barriers Compliance Board (“Access Board”) and 

states that: “[The American with Disabilities Act Accessibility Guidelines] and the Department of Justice’s ADA regulations do not require captioning of movies for persons who are 

deaf.” 69 Fed. Reg. 44084-01, 44138. The second interpretation was published in a DOJ notice of proposed rulemaking 

on June 17, 2008, and states, “The Department is considering 

options under which it might require that movie theater owners and operators exhibit movies that are captioned for patrons 

who are deaf or hard of hearing.” 73 Fed. Reg. 34508-01, 34530.3 

Harkins contends that the Access Board’s interpretation 

shows that captions are not required under the ADA, and the 

DOJ’s use of the term “might” contained in the second interpretation implies that there is no such requirement under the 

current regulations. 

The agency interpretations proffered by Harkins do not 

stand on the same footing as the DOJ’s commentary to title 

28, part 36.303 contained in the Code of Federal Regulations. 

This court has declined to give deference to Access Board 

guidelines that have not yet been adopted by the DOJ.4 See 

Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1027 n.1 (9th 

Cir. 2008). Moreover, we have refused to defer to a proposed 

regulation published by the DOJ itself. See Cal. Rural Legal 

Assistance v. Legal Services Corp., 917 F.2d 1171, 1173 (9th 

Cir. 1990). The DOJ’s interpretation in a notice of proposed 

rulemaking is similarly unpersuasive. The ADA interpretations urged by Harkins are, therefore, of no consequence here. 

3The DOJ’s website states that the DOJ withdrew its draft final rules to 

amend the implementing regulations to Title III of the ADA while the 

rules are reviewed by officials appointed by President Obama. See Proposed ADA Regulations Withdrawn from OMB Review, 

http://www.ada.gov/ADAregswithdraw09.htm (last visited Apr. 21, 2010). 

4Amicus National Association of Theatre Owners, Inc.’s reliance on a 

May 2, 2001, Access Board press release is similarly misplaced, as the 

DOJ has not adopted the Access Board’s position as its own. Cf. Miller, 

536 F.3d at 1031. 

6490 

ARIZONA v. HARKINS AMUSEMENT 

Finally, we are unpersuaded by Harkins’s argument that 

requiring it to provide captions and descriptive narration 

would require us to ignore the word “auxiliary” in 42 U.S.C. 

§ 12182(b)(2)(A)(iii), which connotes a “subsidiary” or “supplementary” relationship of one thing to another. Appellee Br. 

at 19 (citing Webster’s New Twentieth Century Dictionary 

128 (2d ed. 1979)). First, the ADA provides its own definition 

of “auxiliary aids and services,” which includes “effective 

methods of making aurally delivered materials available to 

individuals with hearing impairments[,]” “effective methods 

of making visually delivered materials available to individuals 

with visual impairments[,]” and “acquisition or modification 

of equipment or devices . . . .” 42 U.S.C. § 12103(1). Closed 

captioning and descriptive narration fall comfortably within 

the scope of this definition. Furthermore, even accepting 

Harkins’s parsing of the statutory definition, movie theaters’ 

primary service is to screen films. See Fortyune v. Am. Multi-

Cinema, Inc., 364 F.3d 1075, 1084 (9th Cir. 2004). Thus, captions and descriptive narration are not so removed from a theater’s usual business that they cannot be deemed “subsidiary” 

or “supplementary.” 

[9] In sum, the district court was correct in holding that the 

ADA does not require Harkins to utilize open captioning as 

a matter of law. However, the district court erred in holding 

that closed captioning and descriptive narration are not 

required by the ADA. Our holding does not necessarily mean 

that Plaintiffs will be entitled to closed captioning and 

descriptive narration in Harkins’s theaters. Harkins may still 

be able to avail itself of several defenses, such as the contention that the devices would fundamentally alter the nature of 

its services or constitute an undue burden. See 42 U.S.C. 

§ 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a). B. Arizonans with Disabilities Act The district court based its dismissal of Plaintiffs’ AzDA 

claim on its finding that “Plaintiffs make no argument that the 

ARIZONA v. HARKINS AMUSEMENT 

6491 

AzDA is broader than the ADA.” Harkins, 548 F. Supp. 2d 

at 731-32. The district court never addressed whether the 

AzDA is unconstitutionally vague or requires establishments 

to provide auxiliary aids and services to disabled individuals. 

We decline to do so in the first instance, and the district court 

may consider Harkins’s arguments on remand. 

C. Standing Finally, Plaintiffs challenge the district court’s finding that 

Plaintiff-Intervenors lack standing to challenge a failure to 

provide captions or descriptive narration at any theater 

besides North Valley 16. The district court found the Plaintiffs lacked standing to challenge a lack of accommodations 

in other theaters because “they have not alleged they 

attempted to access any of Harkins’ other theaters or that they 

would access any of the other theaters if the requested services were provided.” Harkins, 548 F. Supp. 2d at 726 n.5. 

We need not reach the matter of standing given that the district court did not consider Plaintiff-Intervenors’ motion for 

leave to file a first amended complaint. See id. at 732 (denying Plaintiff-Intervenors’ motion for leave to file a first 

amended complaint as moot). The proposed first amended 

complaint alleges that Lindstrom and Wanger attempted to 

find theaters other than North Valley 16 that would accommodate their needs. Because the district court did not consider 

these allegations, the district court must reconsider Plaintiff-

Intervenors’ motion to amend their complaint in light of this 

court’s conclusion that they have stated a claim under the 

ADA. 

III. [10] The district court incorrectly construed the mandate of 

42 U.S.C. § 12182(b)(2)(A)(iii) that a place of public accommodation must provide auxiliary aids and services so that a 

disabled person is not denied the public accommodation’s services. We therefore reverse the district court’s dismissal of 6492 

ARIZONA v. HARKINS AMUSEMENT 

Plaintiffs’ ADA claim seeking closed captioning and descriptive narration. Because the commentary to part 36.303, title 

28 of Code of Federal Regulations states that movie theaters 

are not required to present open-captioned films, however, we 

affirm the district court’s finding that open captioning is not 

required by the ADA as a matter of law. Finally, because the 

district court did not consider Plaintiff-Intervenors’ motion to 

file a first amended complaint, the district court must reconsider the issue of standing on remand. 

Each party is to bear their own costs. 

AFFIRMED IN PART AND REVERSED IN PART.