Saturday, August 8, 2015
“You are not welcome here.” ADA Access to Music Festivals and Other Outdoor Venues
“You are not welcome here.”
ADA Access to Music Festivals and Other Outdoor Venues
David Ferleger, Esq.
If I love music and use a wheelchair, the concert hall should have space for me to sit. If I love sports, the ballpark or arena will have space set aside for wheelchair users. If I am an amputee or on crutches, I’ll be able to drive up close to the venue so I can enter without much inconvenience.
But suppose I have tickets to a music or other festival, or other outdoor event, where the main stage, the main action, is distant from the satellite parking lots. Suppose I want to attend a public concert in Central Park NYC or another large urban event when streets are closed to traffic for many blocks in all directions. There may be shuttles but not handicap-accessible vehicles. There may be some reserved handicap parking spaces, but not enough.
After recounting the challenge of individuals with mobility disabilities in accessing large outdoor venues, I argue that a) the Americans with Disabilities Act (ADA) requires that, if a venue offers shuttle service to the non-disabled, then people with disabilities must be provided accessible transportation from parking lots to main stage, and b) regardless of what is offered to the non-disabled, a venue must provide accessible transportation as an accommodation under the ADA.
Beyond the scope of this analysis, but subject to the same principles, is access for disabled musicians, access to multi-location events, access to beaches and parks and mountain areas, and the like. At the end of this piece, I describe how one tour producer’s expansive access practices benefits both performers and attendees.
Festival Access: The Experience
Access to outdoor venues is very much a live issue among people with disabilities. A concert goer with cerebral palsy explained it is important to her that she is provided equal access to entertainment venues because, “there’s no replacement for the unparalleled rush of emotional energy that comes from seeing an amazing concert. This enjoyment shouldn’t be something limited to those who can stay on their feet for hours on end.” Annie Zaleski, “You Are Not Welcome Here”: At Concerts and Music Festivals, Fans with Disabilities Are Too Often Shut Out, Endangered and Ignored, Salon (Jul. 1st, 2015). Available at http://www.salon.com/2015/07/01/you_are_not_welcome_here_at_concerts_and_music_festivals_fans_with_disabilities_are_too_often_shut_out_endangered_and_ignored/ .
Sean Gray, a 32 year old with cerebral palsy, explains disability discrimination at music venues to be, “no different than any other kind of oppression.” Katie Toth, A Disabled Musician Shines a Light on the Accessibility of New York’s Venues, The Village Voice (Jan. 19th, 2015). Available at http://www.villagevoice.com/news/a-disabled-musician-shines-a-light-on-the-accessibility-of-new-yorks-venues-6686981 . Gray pointedly questioned: "What if you're not allowed to go to a venue because you're gay or a person of color? That's what this feels like." Id.
‘Part of the reason show-goers don’t see people with disabilities at shows is partly due to the fact that our needs aren’t being met in terms of accessibility. It’s not because we don’t exist, it’s because how can we go somewhere that we can’t access?’ Josh Sisk, Sean Gray confronts gap in venue accessibility for people with disabilities in Baltimore and beyond, City Paper (April 8th, 2015). Available at http://www.citypaper.com/music/bcpnews-sean-gray-confronts-gap-in-venue-accessibility-for-people-with-disabilities-in-baltimore-and-beyond-20150407-story.html .
In order to combat this discrimination, Gray created a website called, Is This Venue Accessible?, which can be accessed at http://www.itvaccessible.com. The site allows users to write reviews on the accessibility of venues in cities across the country
The ADA and Large Outdoor Music and Other Venues
What access is guaranteed by the Americans with Disabilities Act to such large outside venues? There is no doubt that festival venues must comply with the ADA. 42 U.S.C. §12181(7)(C) (“concert hall, stadium, or other place of exhibition or entertainment), (D) (“convention center. . . or other place of public gathering”), (I) (“a park, zoo, amusement park, or other place of recreation”). For convenience, let’s call them ‘festival venues’ although they include non-festivals.
In many cases, festival venues provide shuttles to and from parking lots for people without disabilities. Shuttle vans and buses in this situation are typically not handicap accessible. Should wheelchair accessible transportation be provided so that people with disabilities have the same access as the non-disabled? I conclude that festival venues required to provide special transportation services for people with mobility disabilities as an accommodation under the ADA?
The general ADA Title III anti-discrimination rule applies. Under 42 U.S.C.S. § 12182 of the ADA,
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 USCS § 12182
Further, § 12182(2)(A)(ii) explains that discrimination includes,
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. § 12182(2)(A)(ii)
For individuals with disabilities to participate in the full and equal enjoyment of a festival, they must have access to the main entrance, thee stages, and festival area. It is not enough to provide handicap accessible parking if the individuals are unable to get from the parking area to the location at which the events are taking place. Satellite parking lots are by definition far from the main event; individuals with disabilities are incapable of traveling to the festival grounds due to barriers such as grass, uneven terrain, unpaved or improperly paved walkways without curb cuts, or the necessity to travel over highways. Such barriers may also exist within the event area.
Sometimes, on-site reserved nearby handicap parking is provided, but these may be few in number and filled by the time some attendees arrive. Venues which provide reserved spaces for handicap parking need to provide transportation to and from any additional areas used for ADA accessible parking if there are not enough handicap parking spaces available at the time of the event.
The solution required by the ADA, I believe, is to ensure that individuals who are mobility-disabled and those who are not disabled both have access to the festival venue and, therefore, if transportation is provided for the non-disabled, accessible transportation must be provided for people with mobility disabilities. Whether the festival venue is owned or rented by the event producer does not matter; both are responsible for ensuring access. PGA Tour, Inc. v. Martin, 532 U.S. 661, 669-670 (2001) (a private entity which stages time-limited events at a facility owned by a third party is covered by the ADA); Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 865 (9th Cir. 2004) ( “two private entities that stage the rodeo finals at a public arena “operate” the arena and must comply with ADA accessibility rules).
The ADA’s integration mandate supports the conclusion that a venue which provides shuttle transporation to the event area must also provide wheelchair accessible transportation; “a primary goal of the ADA is the equal participation of individuals with disabilities in the ‘mainstream’ of American society.” Americans with Disabilities Act, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, available at http://www.ada.gov/taman3.html. In order to achieve this goal,
1) Individuals with disabilities must be integrated to the maximum extent appropriate; 2) Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual; 3) Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits. Id.
See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128-29 (2005) (Supreme Court held cruise ships are “public accommodations” and “specified public transportation under Title III of the ADA). Relying on Spector, the court in Baughman v. Walt Disney World Co., summarized the principle: “Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.” Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012).
If an individual with disabilities is denied an accommodation, or accessible parking and transportation to the main entrance of an event is not provided, it is impossible to integrate the individual into the mainstream. Without accessible transportation from the parking areas, an individual with disabilities faces obstacles that may not be apparent to individuals who do not have a disability. For example, in one case, the plaintiff alleged he was unable to “attend programs, services, and activities hosted at the Stadium because of overly steep ramps, inaccessible restrooms, an inaccessible path from parking provided for persons with disabilities to the Stadium, and insufficient wheelchair-accessible seating.” Eames v. S. Univ. & Agric. & Mech. College, 2009 U.S. Dist. LEXIS 97452 (M.D. La.) at 3 (access at stadium including “inaccessible path from parking provided for persons with disabilities to the Stadium”).
In Cortez v. City of Porterville, the plaintiffs alleged a lack of access to a sports complex, which caused them to experience “difficulty reaching the playing field because the only way to get from the parking facility to the playing field was by traversing over grass.” Cortez v. City of Porterville, 5 F.Supp.3d 1160, 1163 (E.D. Cal. 2014) (denying motion to dismiss). The plaintiffs were attempting to get to the sports complex safely with their granddaughter who uses a wheelchair, but “the grass was too high for Mr. Cortez to push his granddaughter in her wheelchair safely so Mr. Cortez carried his granddaughter across the grassy area while his wife pushed her empty wheelchair.” Id. at 1163.
Similarly, in Daubert v. City of Lindsay, the plaintiff and his great-granddaughter were unable to travel through a park due to “sandy paths that encumbered their navigation through the Park.” Daubert v. City of Lindsay, 37 F. Supp. 3d 1168, 1176 (E.D. Cal. 2014) The Plaintiff alleged, “the Park facilities cause him and his great-granddaughter to ‘experience difficulty and feel anxious, embarrassed, conspicuous, unwelcomed and like second class citizens.’” Id. This is not the situation of an individual who is integrated into the mainstream. The court denied the City’s motion to dismiss the plaintiff’s Title II ADA claim on issues of standing.
What is provided to the non-disabled must be provided to people with disabilities. White v. NCL Am., Inc., 2006 U.S. Dist. LEXIS 24756, 3 (S.D. Fla. 2006) (cruise ship sued for several barriers to accessibility including “inadequate transportation and access to excursions which are offered to non-disabled passengers”; motion to dismiss denied); Doud v. Yellow Cab of Reno, Inc., 2015 U.S. Dist. LEXIS 26700, 3 (D. NV. 2015) (taxi transportation at airport; Yellow Cab provided services to disabled individuals, but discriminated against Doud due to her electric wheelchair); Davis v. Biggers, 2013 U.S. Dist. LEXIS 150865 (S.D. Tex. 2013) (wheelchair-using student; university provided free shuttle service for students to get around campus, but denied disabled students the same accommodation; plaintiff’s request for declaratory and injunctive relief were dismissed after university acquired a handicap-accessible van).
The so-called “intent to return” test (if it is valid at all) cannot apply to festival venue cases. Several courts have relied on an “intent to return” test which evaluates, among other things, the plaintiff’s past patronage and the definitiveness of the plaintiff's plan to return. See Harty v. Burlington Coat Factory of Pa., LLC, 2011 U.S. Dist. LEXIS 64228, 13 (E.D. Pa. 2011); See also Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013); Garner v. VIST Bank, 2013 U.S. Dist. LEXIS 179480 at 14-15. (E.D. Pa. 2013); Disabled Patriots of Am., Inc. v. City of Trenton, 2008 U.S. Dist. LEXIS 73010, 9 (D. N.J. 2008) (court allowed the Plaintiff a chance to explain any factors for why she would return to the facility in the future, and denied the motion to dismiss); Access 4 All, Inc. v. 539 Absecon Blvd, 2006 U.S. Dist. LEXIS 45499, 22 (D. N.J. 2006) (court explained the distance did not matter as much as it mattered whether the Plaintiff had “set forth a definitive intent to return.”); Dempsey v. Pistol Pete’s Beef and Beer, LLC, 2009 U.S. Dist. LEXIS 99606, 13 (D. N.J. 2009) (motion for default judgment was denied based on his inability to show a “definitive plan to return,” and a failure to address, “proximity, past patronage, and nearby travel.”) The test “is one of totality,” and not all four factors must be met in order to establish a claim. Brown v. Showboat Atl. City Propco, LLC, 2010 U.S. Dist. LEXIS 133106, at 12 (D.N.J. 2010)). However, no courts of appeals have adopted the “intent to return” test. Heinzl v. Starbucks Corp., 2015 U.S. Dist. LEXIS 28635 at 12-13 (W.D. Pa. 2015).
It is not appropriate to apply the “intent to return” test to a location of this nature because it is typically the case that the festival is not recurring and, in any event, attendees are often not expected to return. Unlike cases in which individuals are denied access to fixed structures such as stores, restaurants, movie theaters, and the like, festival attendees are often one-time visitors; festivals are often one-time or infrequent events, and prompts people to travel nationally and internationally in order to enjoy music and other activities that the festival has to offer.
Even if transportation to and from parking areas is not provided for non-disabled individuals, it is still necessary to accommodate each individual’s disability on a case by case basis in order to determine what accommodations should be provided for each individual. This individualized process should allow the disabled individual full and equal access to the venue. The Supreme Court in PGA Tour, Inc. v. Martin explained, “the ADA’s basic requirement that the need of a disabled person be evaluated on an individual basis.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001).
Luckily, some festivals are taking initiative on their own in order to make music venues more accessible for individuals with disabilities. Kevin Lyman, the founder of Warped Tour explains that it is not that complicated for venues and festivals to comply with the ADA’s access regulations. Lyman explained,
When you’re at a big festival for three days, you have time to build it. Warped is on the move all the time. Some of the venues are really great; those amphitheaters work really well. But if we’re in a field, we’re going to put more plywood down so a wheelchair can roll on it. We’ll have a list of access to more things if we need them; we rent them locally.
James Cassar, Disability in Music: How Warped Tour Can Be Accessible for Everyone, Alternative Press (June 26, 2015). Available at http://www.altpress.com/features/entry/disability_in_music_how_warped_tour_can_be_accessible_for_everyone.
That festival producer has added new accessibility features this year including,
private accessible bathrooms to keep those with physical challenges clean and comfortable. This new addition is one that may usher in others, given the tour’s constant need to accommodate varying locations and vendors. Id.
The woman with cerebral palsy quoted at the beginning of this article encountered a concert venue parking attendant who challenged her, “Do you need to use the spot?” In general, the disabled concert goer describes the process of attending an event receives the “subtly non-inclusive message: You are not welcome here.” Annie Zaleski, “You Are Not Welcome Here”: At Concerts and Music Festivals, Fans with Disabilities Are Too Often Shut Out, Endangered and Ignored, Salon (Jul. 1st, 2015). Available at http://www.salon.com/2015/07/01/you_are_not_welcome_here_at_concerts_and_music_festivals_fans_with_disabilities_are_too_often_shut_out_endangered_and_ignored/
The ADA was adopted twenty-five years ago. Its message is that all are welcome here.