“You are not welcome here.”
ADA Access to Music Festivals and Other Outdoor
Venues
David Ferleger, Esq.
215-887-0123
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.
David Ferleger
215-887-0123
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