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Ticketing and Seating in Assembly Areas (Theaters, Arenas, etc.)
Summary:
We strongly support the new regulatory provisions requiring covered entities to ensure that people with disabilities can purchase tickets in the same way as others, that assembly areas provide information identifying accessible seating, that ticket prices must not be higher for accessible seating, and numerous other provisions as specified below. In some cases, the regulation needs additional language to provide equal opportunity.
We do not understand why there are inconsistencies between the Title II and Title III language. Venues, regardless of the status of the owners or operators, ought to be subject to the same regulations, given the similar nature of the facilities and ticketing practices. In practice, there are few distinctions between public and private theaters, stadiums, and arenas in the practices of ticketing and disability accommodations—certainly, there are no inherent differences. There are hybrid venues, such as the Rose Bowl, which is owned by the City of Pasadena, a Title II entity, but frequently operated by private entities for music concerts. Any inconsistencies will cause significant confusion. Thus we have suggested language to make the requirements consistent between Title II and Title III.
Where the Title II and Title III proposals are essentially the same, our comments will be combined. Where they are unnecessarily different, our comments will suggest language to make the regulations consistent.
Title II 35.138 Ticketing
35.138(a) General
Title III 36.302(f) Ticketing
36.302(f)(1) General
Summary of Proposals: The Department proposes to require theaters, arenas, and entities selling tickets for them to ensure that individuals with disabilities can purchase tickets for accessible seating during the same hours, through the same methods of distribution, and in the same types and numbers of sales outlets as other patrons, unless it is a fundamental alteration of the ticketing service.
Overall, we believe that this is an excellent and urgently needed requirement that must be maintained in the final rule.
However, the Title II requirements should be the same as the Title III requirements. Thus the language from the Title III regulations, Subsection 36.302(f)(1) should be included: “including telephone service, in-person ticket sales at the facility, or third-party ticketing services” in the Title II regulation. If venues owned or operated by public accommodations include these services for general public ticketing, there is no reason to exclude this requirement from a venue owned and operated by state or local governments.
We also propose adding to Subsections 35.138(a) and 36.302(f)(1) language similar to that found in Subsection (e) of the Title II regulation and Subsection 36.302(f)(5) of the Title III regulation regarding requiring tickets to be sold under the same terms and conditions. E.g., “sold under the same terms and conditions as other tickets sold for the same series of events”
Similarly, we also propose adding to Subsections 35.138(a) and 36.302(f)(1) language similar to that found in Subsection (e) of the Title II regulation and Subsection 36.302(f)(5) of the Title III regulation regarding the transfer of tickets purchased for accessible seating on a multi-event basis. E.g., “Spectators purchasing tickets for accessible seating on a pre-assigned basis shall also be permitted to transfer tickets for use by friends or associates in the same fashion and to the same extent as permitted other spectators holding tickets for the same type of ticketing plan.”
Title II 35.138 Ticketing
35.138(b) Availability
Title III 36.302(f) Ticketing
36.302(f)(2) Availability
Summary of Proposals: The Department proposes that tickets for accessible seating shall be made available during all stages of ticket sales, including, but not limited to, presales, promotions, lotteries, wait-lists, and general sales.
This provision has been long needed and we strongly support this language.
The Department asks Question 21: Are there particular concerns about the obligation imposed by the proposed rule in which a public entity must provide accessible seating, including a wheelchair space where needed, to an individual with a disability who purchases an “inaccessible” seat through the secondary market?
Response: If an individual with a disability who needs a wheelchair space buys an inaccessible seat through the secondary market, a theater or arena must, as a reasonable modification of policy, provide the individual with an accessible seat, unless it would be a fundamental alteration to do so. Individuals without disabilities can purchase both accessible and inaccessible seats on the secondary market and be assured of access to the event. An equal level of access must be provided for individuals who require wheelchair spaces. This is especially important in light of the reduced scoping in larger venues, when it is very likely that the wheelchair seating will sell out quickly and be unavailable at a time when the secondary market is still provides a variety of seating opportunities for people without disabilities.
Title II 35.138 Ticketing
35.138(c) Identification of accessibility seating
Title III 36.302(f) Ticketing
36.302(f)(3) Identification of accessibility seating
Summary of Proposals: The Department proposes that if seating maps, plans, brochures, or other information is provided to the general public, wheelchair seating and companion seats shall be identified.
This is an excellent requirement that must be maintained in the final rule. However, designated aisle seats must be included in the identified features, thus including among the beneficiaries of this provision people with mobility impairments other than those who use wheelchairs. All the types of seating elements required by the 2004 ADAAG must be included in the sweep of this requirement.
Title II 35.138 Ticketing
35.138(d) Notification of accessible seating locations
Title III 36.302(f) Ticketing
36.302(f)(4) Notification of accessible seating locations
Summary of Proposals: The Department proposes that entities selling tickets must, upon inquiry, inform spectators with disabilities and their companions of the locations of all unsold or otherwise available accessible seating for any ticketed event at the facility.
This is also an excellent and important requirement that must be maintained in the final rule.
Title II 35.138 Ticketing
35.138(e) Sale of season tickets or other tickets for multiple events
Title III 36.302(f) Ticketing
36.302(f)(5) Sale of season tickets or other tickets for multiple events
Summary of Proposals: The Department proposes that season tickets and other tickets sold on a multi-event basis must be sold on the same terms and conditions as other season tickets. And further, the Department is proposing that people with disabilities may transfer one of the tickets for single event use to a friend or associate, like anyone else.
These are excellent proposals that must be maintained in the final rule. We are concerned, however, about unaddressed issues regarding the sale of season tickets of accessible seats to patrons who do not have disabilities as raised by Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997). The sale of such seats effectively removes these seats from the available wheelchair accessible seating pool, and does not permit individual game or performance seating. Moreover, if accessible seats are sold to a non-disabled patron, it must be limited to one season only and then be subject to resale to a person with a disability. We would recommend language adopted from the case Independent Living Resources v. Oregon Arena Corp. about not selling off season tickets to non-disabled people such that the ticket pool is diminished over time.
The Department should clarify that if a person with a disability buys season tickets and transfers one to a non-disabled associate, the “portable chair” provided by the facility for the associate must meet the standards for companion seating. For example, it must be equivalent in size, quality, comfort, and amenities to the nearby fixed seats.
The Department asks Question 20: If an individual resells a ticket for accessible seating to someone who does not need accessible seating, should the secondary purchaser be required to move if the space is needed for someone with a disability?
Response: If an individual resells a ticket for accessible seating to someone who does not need accessible seating, the theater or arena may ask the secondary purchaser to move, if the space is needed for someone with a disability, as a modification of policy. However, the secondary purchaser should be relocated to a seat of comparable quality, and be allowed to sit with his or her companions, if she/he wishes.
Title II 35.138 Ticketing
35.138(f) Hold and release of accessible seating
Title III 36.302(f) Ticketing
36.302(f)(6) Hold and release of accessible seating
Summary of Proposals: The Department proposes three limited conditions under which covered entities may release unsold accessible seating.
It is positive and very important for the Department to limit when covered entities may release unsold accessible seats, and some limits must continue in the final rule. However, we believe that the limitations do not go far enough, especially in light of the reduced scoping in larger venues.
However, this subsection assumes that there are accessible seats in each seating location, that they are evenly distributed between sections, and that they are available in all price ranges. It does not reflect the reality of most venues, that persons with disabilities have fewer options for seating. Therefore we propose eliminating sections (2) and (3) in this Subsection and only allowing the release of accessible seating when all seating in the facility has been sold, and even then – in subsection (1) – only forty-eight hours before the event. Eliminating sections (2) and (3) addresses the problem of when all the accessible seats in one section are sold but there are still inaccessible seats available, and there are accessible seats in another section but the accessible seating is sold out. By releasing the accessible seats in the other section for sale, the person with a disability is disproportionately impacted, since he/she does not have the option to purchase seating while non-disabled patrons may continue to purchase seats in that section. By limiting the sale of accessible seats to people who do not need them to forty-eight hours before the event, the regulation will ensure that those now very limited wheelchair seats remain available to those who need them.
Title II 35.138 Ticketing
35.138(g) Ticket Prices
Title III 36.302(f) Ticketing
36.302(f)(7) Ticket Prices
Summary Of Proposals: The Department proposes that accessible seating not cost more than other nearby seating; that accessible seating must be available at all price levels; that if a facility has no accessible seating at one price level, then a percentage (determined by the ratio of the total number of seats at that price level to the total number of seats in the assembly area) of the number of accessible seats must be provided at that price level in an accessible location.
We strongly support these requirements. They must be maintained in the final rule. Very often, people with disabilities have been forced to buy higher-priced tickets in order to have an accessible seat, and it is very positive that the Department is proposing to end that discriminatory practice.
One outstanding question that may be necessary for the Department to clarify is that companions should be able to purchase tickets at the same price as persons purchasing accessible seats.
Title II 35.138 Ticketing
35.138(h) Prevention of fraudulent purchase of accessible seating
Title III 36.302(f) Ticketing
36.302(f)(8) Prevention of fraudulent purchase of accessible seating
Summary of Proposals: The Department proposes to disallow covered entities from requiring proof of disability before selling wheelchair spaces, but allow them to inquire whether the individual purchasing the wheelchair space uses a wheelchair. Further, the Department proposes that, for season tickets or other multi-event ticketing, covered entities may request in writing that the wheelchair space is for an individual who uses a wheelchair. Also, the Department would allow covered entities to investigate potential misuse of accessible seating if there is good cause to believe that such seating has been purchased fraudulently.
It is legitimate for covered entities to inquire if the ticket is being purchased for a wheelchair user, but not whether “the individual purchasing the wheelchair space” is a wheelchair user. A friend or other associate may buy the tickets; the wheelchair user him or herself should not be forced to be the purchaser every time, given that non-disabled people may buy each other tickets.
The Department should clearly state that the authorization to investigate potential fraud does not allow the covered entity to subject a ticket purchaser to the burdensome, excessively intrusive and potentially costly extreme of providing medical documentation of the disability. This should be a step left to local law enforcement, in those instances in which the covered entity believes it has sufficient evidence of fraud to file a complaint.
Regarding the Department's proposal to allow covered entities to request in writing that the wheelchair space is for an individual who uses a wheelchair, for season tickets or other multi-event ticketing: the Department must make it very clear that this is a simple yes or no statement, which could be on the web site, or could be mailed in, when all tickets are purchased in writing. When other people can purchase tickets verbally, this should be a verbal question. It would be discriminatory to require someone who uses a wheelchair to go through a written process to purchase tickets, when others do not. The question could be something along the lines of "You have requested wheelchair seating: does the party who will use this ticket, use a wheelchair for mobility?" One potential benefit of allowing this level of inquiry is that a "no" answer sets the stage for sharing information about the other options for accessible seating.
Title II 35.138 Ticketing
35.138(i) Purchasing multiple tickets
Title III 36.302(f) Ticketing
36.302(f)(9) Purchasing multiple tickets
Summary of Proposals: The Department proposes, first of all, that people with disabilities be allowed to purchase the same maximum number of tickets per sales transaction as anyone else. If there are an insufficient number of seats for the party to sit together in wheelchair seating, seating must be provided that’s as close as possible. Moreover, up to three companion seats may be purchased along with a wheelchair seat, if a sufficient number are available. Also, for group sales, if a group includes one or more wheelchair users, the group must be provided seating such that the group can sit together. If it is necessary to divide the group, it should be divided such that the wheelchair user(s) are not isolated from their group.
These are excellent requirements that should be maintained in the final rule. The Department’s protections in this section are important and long-needed. The companion and group seating proposals provide important protections for groups larger than two, to be accommodated in theaters and arenas with reserved seating.
Title II Section 35.138(i) is unnecessarily inconsistent with Title III Section 36.308(c)(2). Section 35.138(i) requires one wheelchair and three companion seats in any size venue, whereas 36.308(c)(2) only requires one wheelchair and three companion seats may be limited to five (5) locations if there are 5001 or more seats. This would contradict the dispersion and pricing requirement sections above, and lead to inconsistent results for the same or similar venues or events. Again, there should be no differences between the Titles II and III requirements in terms of ticketing and seating. Differences will be extremely confusing. They make no sense, given how these facilities operate similarly—there is no inherent difference between a Title II or III theater or arena in terms of ticketing policies..
Title II
35.151(g) New Construction and Alterations
35.151(g) Assembly areas
Summary of Proposals: In new construction and alterations, the Department proposes to disperse wheelchair and companion seating to all levels served by an accessible route, and to disallow these seats from being obstructed by temporary platforms—instead, the Department will allow covered entities to place readily removable seats in unsold wheelchair spaces. Also, the Department proposes that stadium-style movie theaters must locate wheelchair seating on a riser or cross-aisle in the stadium section that is either in the rear sixty percent of the stadium-style seats, or has a vertical viewing angle to the top of the screen that is between the 40th and 100th percentile of vertical viewing angles for all seats (for more specific details, see the proposed regulation, §35.151(g)).
These are excellent sections that should be maintained in the final rule. The stadium-style movie theater proposal implements positive enforcement actions executed by the Department in lawsuits and complaint investigations, and which will go a long way toward providing improved seating for people with disabilities in stadium-style movie theaters. The requirement for the rear 60% of the stadium section improves upon the minimal 70% requirement in the ANSI A117 standard, and the vertical viewing angle scheme is similarly positive. We strongly support the proposals.
Title III
36.308 Seating in assembly areas
36.308(a)(1)(i) Existing facilities
Summary of Proposals: The Department proposes that in existing facilities, to the extent that it is readily achievable, covered entities must provide wheelchair seating and companion seats in reasonable numbers; locate them so they are dispersed; provide lines of sight and choices in admission prices comparable to other seating; adjoin an accessible route; and permit individuals with disabilities to sit with family members and other companions. Wheelchair seating spaces, companion seats, and designated aisle seats must be an integral part of the seating area. Companion seats, whether fixed or removable, must be equivalent in size, quality, comfort, and amenities to the nearby fixed seats.
These are excellent provisions that require in existing theaters and arenas the same protections that the 2004 ADAAG requires in new construction and alterations, where it is readily achievable. These provisions must be maintained in the final rule.
Similar language should be inserted into the Title II regulation.
36.308(b) New construction and alterations
(c) Modifications of policy – (1) Seating areas.
Summary of Proposals: The Department proposes that when sections of seating are provided distinct services or amenities that are not available to other spectators, wheelchair seating spaces and companion seating must be provided in each such specialty seating area.
This is a positive requirement, but the Department structures this proposal such that it will reduce the number of seats available in general admission, whereas it should be in addition to the wheelchair seating in general admission sections.
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