28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Section 36.302(f) Ticketing (Section-by-Section Analysis)

The ticketing policies and practices of public accommodations are subject to title III's general and specific discrimination provisions.  See 42 U.S.C. 12182; 28 CFR 36.302.  Through the investigation of complaints, its enforcement actions, and public comments related to ticketing, the Department is aware of the need to provide regulatory guidance to entities involved in the sale or distribution of tickets.  With this NPRM, the Department proposes to include a section on ticketing within the regulation on modifications to policies, practices, and procedures.  See 28 CFR 36.302.

In response to the ANPRM, individuals with disabilities and related advocacy groups commented that the reduced requirements for accessible seating in assembly areas underscored the need for clarification from the Department on ticketing related issues. One disability advocacy group asserted, that in order to guarantee equal access to assembly areas for people with disabilities, it is necessary to provide complementary design standards, sales policies, and operational procedures.

The Department agrees that more explicit regulation is needed to ensure that individuals with disabilities are not improperly denied access to events because of discriminatory procedures for the sale of wheelchair spaces.  The Department's enforcement actions have demonstrated that some venue operators, ticket sellers and distributors are not properly implementing title III's nondiscrimination provisions.

The Department has entered into agreements addressing problems with ticketing sales and distribution by requiring specific modifications to ticketing policies.  While these negotiated settlement agreements and consent decrees rest on fundamental nondiscrimination principles, they represent solutions tailored to specific facilities.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.

The proposed rule clarifies the application of title III with respect to ticketing issues in certain contexts, and is intended to strike a balance between a covered entity's desire to maximize ticket sales and the rights of individuals with disabilities to attend events in assembly areas in a manner that is equal to that afforded to individuals without disabilities.  The proposed rule does not, however, purport to cover or clarify all aspects or applications of title III to ticketing issues.  Moreover, the rule applies only to the sale or distribution of tickets that are sold or distributed on a preassigned basis. Tickets sold for most motion pictures, for example, would not be affected by the proposed rule.

Because this rule addresses ticketing policies and practices for stadiums, arenas, theaters, and other facilities in which entertainment and sporting events are held, its provisions are related to and informed by those in proposed § 36.308 (discussed below in the section-by-section analysis of § 36.308), which covers seating in assembly areas.  Section 221 of the proposed standards reduces the scoping requirements for accessible seating in assembly areas.  After the proposed standards are finalized, the scoping reduction will apply to all public accommodations.  See proposed 28 CFR 36.211(c).

Ticket distribution methods. (Section-by-Section Analysis)

Section 36.302(f)(1) states the general rule that a public accommodation shall modify its policies, practices, and procedures to ensure that individuals with disabilities can purchase single or multi-event tickets for accessible seating in the same way as others, i.e., during the same hours and through the same distribution methods as other seating is sold. Tickets can be purchased in many different ways:  in person or on the phone, directly through the venue, or through a third-party company.  The proposed rule makes clear that it is meant to reach all public accommodations that provide a service by which individuals can purchase event tickets, and is not limited to a venue's operation of its own ticketing systems.

The Department has received numerous complaints from individuals who were denied the opportunity to acquire tickets for accessible seats through avenues such as ticketing presales, promotions, lotteries, or waitlists.  The proposed rule, at § 36.302(f)(2), makes clear that public accommodations must include accessible seating in all stages of the ticketing process, including presales, promotions, lotteries, or waitlists.

Identification of available accessible seating. (Section-by-Section Analysis)

Section 36.302(f)(3) of the proposed rule requires a facility to identify available accessible seating.  In the Department's investigations of theaters and stadiums, the Department has discovered that many facilities lack an accurate inventory of the accessible seating in their venues, and that this information gap results in lost opportunities for patrons who need accessible seating.  For some public accommodations, multiple inventories may be required to account for different uses of the facility because the locations of accessible seating may change in an arena depending on whether it is used for a hockey game, a basketball game, or a concert.  The proposed rule further requires that the facility identify the accessible seating on publicly available seating charts.  This transparency will facilitate the accurate sale of accessible seating.

Proposed § 36.302(f)(4) requires public accommodations to provide individuals with disabilities with accurate information about the location of accessible seating.  The proposed rule specifically prohibits the practice of "steering" individuals with disabilities to certain wheelchair spaces so that the facility can maximize potential ticket sales for other unsold wheelchair spaces. 

Season tickets and multiple event sales. (Section-by-Section Analysis)

Proposed § 36.302(f)(5) addresses the sale of season tickets and other tickets for multiple events.  The proposed rule provides that public accommodations must sell season tickets or tickets for multiple events for accessible seating in the same manner that such tickets are sold to those purchasing general seating.  The rule also states that spectators purchasing tickets for accessible seating on a multi-event basis shall be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent as other spectators holding tickets for the same type of ticketing plan.  A facility must provide a portable seat for the transferee to use, if necessary.

Secondary market ticket sales. (Section-by-Section Analysis)

The Department is aware that the proposed rule may represent a significant change in practice for many public accommodations with respect to "secondary market" ticket sales.   Because the secondary market is a recognized--and often integral--part of the ticketing distribution system for many venues and activities, individuals with disabilities will be denied an equal opportunity to benefit from the goods offered--attendance at an event--if public accommodations have no obligations with respect to accessible seating bought or sold in this way.  In conjunction with the proposed rule, the Department seeks comment about public accommodations' current practices with respect to the secondary market for tickets, and the anticipated impact of the proposed rule on different types of facilities or events.

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?

Question 21:  Are there particular concerns about the obligation imposed by the proposed rule, in which a public accommodation 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?

Release of unsold accessible seats. (Section-by-Section Analysis)

Proposed § 36.302(f)(6) provides regulatory guidance regarding the release of unsold accessible seats.  Through its investigations, the Department has become familiar with the problem of designated accessible seating being sold to the general public before people who need accessible seating buy tickets.  As a result, individuals who need to use the accessible seating cannot attend the event.

The Department has entered into agreements addressing this problem by requiring specific modifications to ticketing policies.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.  These options provide flexibility so that ticketing policies can be adjusted according to the venue size and event type.

Facility sell-out. (Section-by-Section Analysis)

Proposed § 36.302(f)(6)(i) allows for the release of unsold accessible seating once standard seats in the facility have been sold, but luxury boxes, club boxes, or suites are not required to be sold out before the remaining accessible seats are released.  To implement this option, the release of unsold accessible seating should be done according to an established, written schedule.  Blocks of seats should be released in stages, and should include tickets in a range of price categories and locations that is representative of the range of seating that remains available to other patrons.

Sell-outs in specific seating areas. (Section-by-Section Analysis)

Under the second contingency, proposed § 36.302(f)(6)(ii), a facility could release unsold accessible seating in a specific seating area if all of the standard seats in that location were sold out.  For example, if all seats in the orchestra level are sold, the unsold accessible seats in the orchestra level could be released for sale to the general public.

Sell-outs in specific price ranges. (Section-by-Section Analysis)

The third approach described at proposed § 36.302(f)(6)(iii) permits a public accommodation to release unsold accessible seats in a specific price range if all other seats in that price range were sold out.  For example, if all $50 seats were sold, regardless of their location, the unsold $50 accessible seats may be released for sale to the general public.

Question 22: Although not included in the proposed regulation, the Department is soliciting comment on whether additional regulatory guidance is required or appropriate in terms of a more detailed or set schedule for the release of tickets in conjunction with the three approaches described above.  For example, does the proposed regulation address the variable needs of assembly areas covered by the ADA?  Is additional regulatory guidance required to eliminate discriminatory policies, practices, and procedures related to the sale, hold, and release of accessible seating?  What considerations should appropriately inform the determination of when unsold accessible seating can be released to the general public?

Ticket pricing. (Section-by-Section Analysis)

Section 36.302(f)(7) of the proposed rule addresses ticket pricing.  The proposed rule codifies the Department's longstanding policy that public accommodations cannot impose a surcharge for wheelchair spaces.  Accessible seating must be made available at all price levels for an event.  If an existing facility has barriers to accessible seating at a particular price level for an event, 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.  In no case shall the price of any particular accessible seat exceed the price that would ordinarily be charged for an inaccessible seat in that location.  For example, many theaters built prior to the passage of the ADA have balconies that are inaccessible to people who use wheelchairs, and the only wheelchair spaces are located in the orchestra level in which tickets are more expensive.  If a comparably sized balcony in a theater built under the ADA's new construction standards would have two wheelchair spaces, the existing theater must sell two orchestra wheelchair spaces at the balcony price on a first come, first served basis.

Fraudulent purchase of designated accessible seating. (Section-by-Section Analysis)

The Department has received numerous comments regarding fraudulent attempts to purchase wheelchair spaces for patrons other than those who use wheelchairs.  Moreover, the Department recognizes that the implementation of some of its proposals, such as those relating to the public identification of accessible seating, increase the potential for the fraudulent purchase of accessible seats by those who do not need them.  The Department continues to believe that requiring an individual to provide proof that he or she is a person with a disability is an unnecessary and burdensome invasion of privacy and may unfairly deter individuals with disabilities who seek to purchase tickets to an event.

Notwithstanding this position, the proposed rule at § 36.302(f)(8) permits public accommodations to take certain steps to address potential ticket fraud.  A covered entity may inquire at the time of the ticket purchase whether the wheelchair space is for someone who uses a wheelchair.  For season or subscription tickets, a facility may require the purchaser to attest in writing that the wheelchair space is for someone who uses a wheelchair.  However, the proposed rule preserves the right of an individual with a disability to transfer his or her ticket for individual events and clarifies that the intermittent use of the wheelchair space by a person who does not use a wheelchair does not constitute fraud.

Purchase of multiple tickets. (Section-by-Section Analysis)

The Department has received numerous complaints that public accommodations are unfairly restricting the number of tickets that can be purchased by individuals with disabilities.  Many public accommodations limit the number of tickets an individual with a disability may purchase, requiring the individual to purchase no more than two tickets (for himself or herself and a companion), while other patrons have significantly higher purchase limits (if any).  This is particularly unfair for families, friends, or other groups larger than two that include a person who requires accessible seating.  If the ticket number is limited, the result for wheelchair users is that parents and children, friends, classmates, and others are separated.  Section 36.302(f)(9) clarifies the application of title III to ameliorate such a situation.

There are various ways that covered entities can accommodate groups that require at least one wheelchair space.  The proposed regulation permits up to three companions to sit in a designated wheelchair area, platform, or cross-over aisle that is designated as a wheelchair area, even if the number of companions outnumbers the individuals requiring a wheelchair space.  For example, a parent who uses a wheelchair could attend a concert with his or her spouse and their two children who do not use wheelchairs, and all four could sit together in the wheelchair area.  The Department recognizes that some advocates may object to this use of designated wheelchair areas because it will reduce the amount of accessible seating available for those who need it.  On balance, however, the Department believes that the opportunity to sit with family and friends, as other patrons do, is an integral element of the experience of attending a ticketed event, and it is an element that is often denied to individuals with disabilities. 

By limiting the number of tickets that can be purchased under this provision to four, the Department seeks a balance by which groups and families can be accommodated while still leaving ample space for other individuals who use wheelchairs.  The Department seeks comments from individuals, business entities, and advocacy organizations on whether the proposed rule will appropriately effectuate the integration and nondiscrimination principles underlying the rule.

Question 23:  Is the proposed rule regarding the number of tickets that a public accommodation must permit individuals who use wheelchairs to purchase sufficient to effectuate the integration of wheelchair users with others?  If not, please provide suggestions for achieving the same result with regard to individual and group ticket sales.

Group ticket sales. (Section-by-Section Analysis)

Group ticket sales present another area in which the Department believes additional regulatory guidance is appropriate.  The purpose of the proposed rule is to prevent the current practice of separating groups in a way that isolates or segregates those in the group who require wheelchair seating.  For group sales, if a group includes one or more individuals who use a wheelchair, the proposed rule requires the facility to place that group in a seating area that includes wheelchair spaces so that, if possible, the group can sit together.  If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from the group.  In existing facilities that lack accessible seating in certain areas (e.g., a theater with an inaccessible balcony) the proposed regulation requires covered entities to seat at least three companions with the individual using a wheelchair in the accessible seating area of the orchestra.