By DAWN M. KNEPPER, Shareholder, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
The Americans with Disabilities Act of 1990 (the "ADA") is a comprehensive federal law prohibiting disability discrimination. Title III of the ADA covers access for the disabled to places of public accommodation. The ADA applies broadly, including to public accommodations run by private entities, such as football stadiums, movie theaters, and concert halls. Among other things, the ADA mandates that those entities ensure disabled persons receive equal access to their facilities.
In recent years, a veritable cottage industry has arisen around ADA enforcement with private litigants, special interest groups, and government regulatory agencies filing thousands of ADA claims per year. One such group, the American Disability Institute reportedly plans "to roll out 400 to 500 suits a month until more than 5,000 businesses have been cited for ADA violations."
Given the above, it is imperative for businesses to familiarize themselves with the ADA and its requirements, evaluate potential access issues, and develop an appropriate compliance protocol. This Top Ten takes a look at the top ten considerations that operators of sports and entertainment venues should give related to the ADA's requirements:
1. Your website can be a public accommodation under the ADA
The ADA defines "public accommodation" broadly to include a wide range of businesses and venues. Generally speaking, brick-and-mortar establishments that are open to the public will be considered "public accommodations" under the ADA. However, recent cases involving websites make more complicated the determination of what is or is not a public accommodation.
Courts have taken different approaches to resolving this issue. The Ninth Circuit applies the "nexus" test to evaluate ADA claims involving access to websites. The test requires some nexus between the challenged service and the place of public accommodation. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); see also National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); Contra Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002) (holding that no nexus existed between an airline's online reservation system and its planes). The Eleventh and Third Circuits also use the "nexus" test. See Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1284-85 (11th Cir. 2002); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998).
By contrast, the First and Seventh Circuits have held that a website itself is a "public accommodation" under Title III. See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (a "public accommodation" under Title III is not limited to physical structures); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (noting that a "place of public accommodation" encompasses facilities open to the public, including websites).
2. Specific issues with online purchase of tickets
Ticketmaster settled Title III claims with the DOJ in 2005. However, the issue in that case was not whether the website itself was accessible, but the omission of online features allowing disabled customers to purchase accessible or companion seats for sports and entertainment events. Under the terms of the settlement, Ticketmaster agreed to modify its website to make it easier for disabled persons to identify and purchase accessible tickets, increase the availability of sales agents to handle telephone purchases for accessible seating, appoint a "disability coordinator" to handle access issues, and regularly report to the DOJ on disability and access issues for a three-year period.
3. Premature release of disabled seating for purchase by general public
On a related note, claimants under the ADA have also raised complaints about the premature release of disabled seating for purchase by the general public. Unsold tickets for accessible seating may be released only under the following circumstances:
- When all non-accessible tickets (excluding luxury boxes, club boxes, or suites) in the venue have been sold out (the venue gets to define what "sold out" means);
- When all non-accessible tickets in a designated seating area have been sold out and the tickets for accessible seating in that same area may be released in the same designated area; or
- When all non-accessible tickets in a designated price category have been sold out and the tickets for accessible seating in that designated price category may be released within the same designated price category.
4. Limiting purchase of tickets for disabled patrons through the box office
An entity that sells tickets for a single event or a series of events has to modify its policies, practices, or procedures to make sure that individuals with disabilities have an equal opportunity to buy tickets for accessible seating, including during the same hours, same stages of ticket sales, including, but not limited to, pre-sales, promotions, lotteries, waitlists, and general sales, and through the same methods of distribution.
5. Scrutiny is high on stadiums' accommodations for hearing and vision impaired patrons
Cases involving access to stadiums and arenas for the hearing- and vision-impaired have surged since a court's decision requiring the Washington Redskins to provide auxiliary access to the content of broadcasts from FedEx Field's public address system, including player introductions, play-by-play announcing, and lyrics for the team's "halftime mix" music.
6. Inadequate description of disabled seating per Title III regulations
Individuals with disabilities, and those purchasing tickets for accessible seating for individuals with disabilities, must be informed of the locations of all unsold or otherwise available accessible seating for any ticketed event at the facility. Features of available accessible seating must be identified and described in enough detail to reasonably permit a person with a disability to decide independently whether a given accessible seating location meets his or her accessibility needs.
7. Requiring proof of disability/need for disabled seating
Individuals with disabilities may not be required to provide proof of disability, such as a doctor's note. For the sale of single-event tickets, it is permissible to ask whether the person purchasing the tickets for accessible seating has either a mobility disability or a disability that requires the use of the features of the accessible seating, or is purchasing the tickets for a person who meets those criteria. For series-of-events tickets, it is permissible to ask the person purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the features of the accessible seating.
8. Prohibiting third parties from buying disabled seating for disabled friend, companion, family member
For each accessible ticket purchased by or for an individual with a disability, an entity must allow the purchase of up to three other tickets for companion seats immediately adjacent to and in the same row as the wheelchair space, so long as there are three such seats available at the time of purchase. The additional seats may include wheelchair spaces.
If people are allowed to buy at least four tickets, and there are fewer than three such additional seat tickets available for purchase, a seller has to offer the next highest number of such seat tickets available for purchase and must make up the difference by offering tickets for sale for seats that are as close as possible to the accessible seats.
If ticket sales are limited to fewer than four seats per patron, then the obligation is to offer as many seats to buyers with disabilities, including the ticket for the wheelchair space, as would be offered to buyers without disabilities. If buyers are allowed to purchase more than four tickets, then buyers with disabilities must be allowed to purchase up to the same number of tickets, including the ticket for the wheelchair space.
9. Failure to make appropriate allowances for service animals
A place of public accommodation must modify its policies to allow a service animal to accompany an individual with a disability, unless it would result in a fundamental alteration or would jeopardize the safe operation of the public accommodation. In a restaurant or other areas of the venue, a service animal must be allowed to accompany the person with a disability in all areas that are open to other patrons.
10. Inaccessible placement of condiments, plastic-ware, napkins that serve concessions
People with disabilities need to access tables, food service lines, and condiment and beverage bars in restaurants, bars, or other establishments where food or drinks are sold.
Title III of the ADA imposes numerous requirements to ensure equal access for the disabled. Sports and entertainment businesses are particularly susceptible to Title III claims because of the varied access issues, but also many of the products and services they provide rely on audio and visual mediums. The costs associated with resolving Title III claims can be extraordinary, including settling claims, paying attorneys' fees, and implementing mandatory changes to physical locations, websites, and telephone systems. Thus, it is imperative for every business to evaluate access issues on a regular basis in conjunction with experienced counsel. An ounce of prevention is worth a pound of cure.