28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.151(g) Assembly Areas (Section-by-Section Analysis)

The Department is proposing a new § 35.151(g) to supplement the assembly area requirements in the proposed standards.  This provision would add five additional requirements.

Section 35.151(g)(1) would require wheelchair and companion seating locations to be dispersed so that some seating is available on each level served by an accessible route.  This requirement should have the effect of ensuring the full range of ticket prices, services, and amenities offered in the facility.  Factors distinguishing specialty seating areas are generally dictated by the type of facility or event, but may include, for example, such distinct services and amenities as reserved seating (when other seats are sold on a first-come-first-served basis only); reserved seating in sections or rows located in premium locations (e.g., behind home plate or near the home team's end zone) that are not otherwise available for purchase by other spectators; access to wait staff for in-seat food or beverage service; availability of catered food or beverages for pre-game, intermission, or post-game meals; restricted access to lounges with special amenities, such as couches or flat screen televisions; or access to team personnel or facilities for team-sponsored events (e.g., autograph sessions, sideline passes, or facility tours) not otherwise available to other spectators.

Section 35.151(g)(2) adds the prohibition that the seating may not be placed on temporary platforms or other movable structures.  The Department has become aware that a growing trend in the design of large sports facilities is to provide wheelchair seating on removable platforms that seat four or more wheelchair users and their companions.  These platforms cover one or more rows of non-wheelchair seating.  The platforms are designed to be removed so that the part of the seating bowl that they cover can be used to seat additional ambulatory spectators.  The sale of any seats in the covered area requires removal of the platform, thereby eliminating some of the required wheelchair seating locations.  In another design that produces a similar result, removable platforms configured to provide multiple, non-wheelchair seats, are installed over some or all of the required wheelchair seating locations.  In this configuration, selling a ticket for one wheelchair location requires the removal of multiple non-wheelchair seats.

The Department believes that both of these designs violate both the letter and the intent of this regulation.  Both designs have the potential to reduce the number of available wheelchair seating spaces below the level required.  Reducing the number of available spaces is likely to result in reducing the opportunity for people who use wheelchairs to have the same choice of ticket prices and access to amenities that are available to other patrons in the facility.  In addition, placing wheelchair seating on removable platforms may have a disproportionate effect on the availability of seating for individuals who use wheelchairs and their companions attempting to buy tickets on the day of the event.  Use of removable platforms may result in instances where last minute requests for wheelchair and companion seating cannot be met because entire sections of wheelchair seating will be lost when a platform is removed.  The use of movable seats, on the other hand, could meet such a demand without eliminating blocks of wheelchair seating at a time, converting only those seats that are needed for ambulatory spectators and are not wanted by individuals who use wheelchairs and their companions.

For these reasons, the Department believes that it is necessary and appropriate to prohibit the use of temporary platforms in fixed seating areas.  Nothing in § 35.151(g) is intended to prohibit the use of temporary platforms to increase the available seating, e.g., platforms that cover a basketball court or hockey rink when the arena is being used for a concert.  These areas of temporary seating do not remove required wheelchair locations and, therefore, would not violate the requirements of this regulation.  In addition, covered entities would still be permitted to use individual movable seats to infill any wheelchair locations that are not sold to wheelchair users.  

Section 35.151(g)(3) would require facilities that have more than 5,000 seats to provide at least five wheelchair locations with at least three companion seats for each wheelchair space.  The Department is proposing this requirement to address complaints from many wheelchair users that the practice of providing a strict one-to-one relationship between wheelchair locations and companion seating often prevents family members from attending events together.

Section 35.151(g)(4) would provide more precise guidance for designers of stadium-style movie theaters by requiring such facilities to locate wheelchair seating spaces and companion seating on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria:

(i) it is located within the rear sixty percent (60%) of the seats provided in an auditorium; or

(ii) it is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).