Seyfarth Synopsis: DOJ published regulations today requiring that movie theaters throughout the United States provide closed captioning and audio description to patrons with disabilities for digital movies distributed with these features.

Today, the Department of Justice (DOJ) published its final rule requiring theaters throughout the United States to provide closed captioning and audio description (if available) for movies exhibited in digital format.  The new regulations will take effect on January 17, 2017.

As we covered here, DOJ issued a Notice of Proposed Rulemaking (NPRM) in August of 2014, which proposed rules requiring that theaters purchase and deploy specific equipment to provide closed captions for individuals who are deaf or hard of hearing, and audio description for patrons with visual impairments.  The proposed regulations also included requirements to advertise the availability of these technologies, and have a staff member on-site to locate, operate, and troubleshoot this equipment.

The final rule adopts many of these proposals, although several were scaled back, presumably in response to public comments submitted by theater representatives, advocates and owners.  DOJ estimates that complying with these regulations will nonetheless cost the industry between $88.5 and $113.4 million over the next 15 years.

We outline the key provisions below.

  1. Applies to All Digital (Not Analog) Movie Theaters

The new regulations apply to movies shown in digital format (i.e. images and sound captured on computer disk rather than film) and not analog format (i.e. 35 mm).  Although DOJ solicited comments on whether to extend the regulations to analog movies, it deferred that issue for future rulemaking.  The final rule cites statistics submitted by the National Association of Theater Owners (NATO) that 98 percent of indoor auditoriums in the U.S. have already been converted from analog to digital.

The final rule applies to theaters and other facilities that are used primarily to show movies for a fee.  Thus, museums, hotels, cruise ships and other public accommodations that show movies to patrons, but not as a primary means of their business, are excluded.

The new regulations apply to all covered theaters, regardless of seating capacity or the number of screens.  Thus, a small community theater with one or two screens will be subject to the same regulations as a megaplex with over 16 screens.  The final rule does not apply to drive-ins.

  1. Theaters Must Have a Minimum Number of Closed Captioning Devices Based on the Number of Screens

Closed captioning devices provide written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) to an individual patron at his or her seat.  Theaters must have a sufficient number of devices on hand based on the number of screens exhibiting digital movies, as opposed to total theater seating capacity as suggested in the NPRM.  The requirements are as follows:

Number of Theater Auditoriums Exhibiting Digital Movies Minimum Required Number of Captioning Devices
1 4
2-7 6
8-15 8
16+ 12

The DOJ commentary cites comments and research that the scoping proposed in the NPRM would have substantially exceeded actual demand for this equipment.

In addition, the final rule provides that theaters can utilize open captioning (where captioning can be viewed by everyone in the auditorium) as an alternative means of complying, but are not required to do so.  To satisfy the requirements with open captioning, the theater must either display open captions at all showings, or activate open captions whenever they are requested by an individual who is deaf or hard of hearing before the movie starts.

  1. Theaters Must Have One Audio Description Device for Every Two Screens

In addition to captioning, the final rule also requires that theaters are equipped with audio description devices that provide spoken narration of key visual elements of a movie, such as the actions, settings, facial expressions, costumes and scene changes.

Theaters must have at least one audio description device for every two screens, but theaters with only one screen must have at least two devices.  DOJ reduced the scoping requirement proposed in the NPRM of one audio description device per screen.

This requirement may be satisfied with existing assistive listening receivers (which amplify sound rather than narrate events that occur on-screen) that theaters are already required to provide, but only if these devices have a minimum of two channels available for sound transmission.

  1. Theaters Must Show Movies with Captioning and Audio Description if Available

If a theater exhibits a movie that is distributed with closed captioning and/or audio description features, then the theater must exhibit that version of the movie at all scheduled showtimes.  DOJ’s commentary provides that this requirement neither prohibits theaters from exhibiting a movie not distributed with captioning or audio description, nor requires that they independently add such features.

  1. Closed Captioning Devices Must Satisfy Performance Criteria

The final rule adopted the performance standards for closed captioning devices proposed in the NPRM, which many industry commenters criticized as vague and subjective.

The new regulations will require that closed captioning devices must:

  • Be properly maintained;
  • Be easily usable by patrons;
  • Be adjustable so that the captions can be viewed as if they are on or near the movie screen; and
  • Provide clear, sharp images in order to ensure the readability of captions.

It is not clear what constitutes an “easily usable” device, for example, or the font size or resolution that provides sufficiently “clear, sharp images” to satisfy these requirements.  These uncertainties may lead to future litigation.  In its commentary, DOJ did note that performance standards for captioning devices are subject to existing regulations that permit, with respect to the maintenance of accessible features, “isolated or temporary interruptions in service or access due to maintenance or repairs.”  28 C.F.R. §  36.211.

  1. Other Technologies May be an Acceptable Substitute for Closed Captioning

Theaters may use technologies other than closed captioning, as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.

  1. Digital Theaters Must Comply with Captioning and Audio Description Requirements by June 2, 2018

Theaters showing digital movies on December 2, 2016 must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by June 2, 2018.  If a theater converts an auditorium from an analog projection system to a system that it allows it show digital movies after December 2, 2016, then it must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by December 2, 2018, or within 6 months of that auditorium’s complete installation of a digital projection system, whichever is later.  DOJ ultimately rejected the aggressive, 6 month timeframe for compliance proposed in the NPRM.

  1. Theaters Must Have Staff On-Site Who Can Locate, Operate, and Troubleshoot Existing Assistive Equipment by January 17, 2017

At least one person (presumably an employee) who can locate, operate, and address problems with all captioning and audio description equipment must be at the theater at all times.  This employee must also be able to communicate effectively with customers with disabilities regarding the uses of, and potential problems with, captioning and audio description devices.  The final rule also requires that theater staff “quickly activate the equipment and any other ancillary systems,” although neither the regulation nor the commentary address what “quickly” means in this context.

DOJ rejected the suggestion from some industry commenters that the regulations should expressly provide that theaters should not be required to hire sign language interpreters to communicate with deaf or hard of hearing patrons regarding this equipment.  The agency did, however, note in its commentary that effective communication concerning these devices would not require a sign language interpreter, but instead “can easily be provided through signage, instructional guides, or written notes.”

In adopting these personnel requirements, DOJ also apparently relied on comments from individuals with disabilities and advocacy groups who reported that theater staff are generally not properly trained in the use, operation and maintenance of existing assistive equipment.  DOJ declined to impose an explicit employee training requirement in the final rule.

Significantly, theaters that already exhibit digital movies must comply with these requirements by the effective date of January 17, 2017.

  1. Theaters Must Comply with New Advertising Requirements by January 17, 2017

As with the proposed rule in the NPRM, the final rule requires that a theater’s communications and advertisements intended inform potential patrons of movie showings and times must indicate whether each movie is available with captioning and/or audio description.  Although the proposed rule would have imposed this requirement on practically all forms of advertisements, the final rule applies to the box office and other ticketing locations, websites and mobile apps, newspapers and over the telephone.  It does not apply to third party ticket providers or websites if they are not part of, or subject to, the control of the public accommodation.

Theaters that already provide captioning and audio description services must comply with these advertising requirements by the effective date of the regulations.

***

We are continuing to evaluate the final rule and its potential impact on public accommodations.  It is apparent, however, that the regulations, set to take effect three days before the President-elect’s inauguration, will enhance the accessibility of moviegoing in the United States, while also imposing additional costs on the industry in the form of new equipment, employee training, advertising and future litigation.

Stay tuned for further analysis and updates on these new regulations.

Edited by Minh Vu.

Seyfarth Synopsis:  DOJ announces that proposed rules for state and local government websites will issue July 2017.

The DOJ announced last week in the federal government’s Unified Agenda that it will be issuing a proposed rule for state and government websites in July 2017.  The Unified Agenda provided no date for the proposed rule for public accommodations websites, however.  As we reported previously in May the DOJ had issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) for the state and local website rulemaking  in which it stated that the results of that rulemaking would “facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”   The SANPRM posed more than 120 questions for public comment, the period for which closed on October 7.

Given the many delays in the state and local government website rulemaking which started in 2010, we have little confidence that a proposed rule will really issue in July 2017.  Furthermore, the projected July 2017 date was likely set before the election which injects additional uncertainly for the reasons we discussed in a prior post.

Edited by Kristina Launey.

Seyfarth Synopsis:  Our thoughts on the impact of the election on the ADA Title III landscape.

We now know that January 20, 2017 will bring a definitive regime change. How will this change impact Title III of the ADA, the current litigation environment, and pending Department of Justice (DOJ) regulations and enforcement activities?  Here are our thoughts.

The ADA was created through bipartisan effort, signed into law by President George Bush in 1990.  Since that time, the law has only been amended once – in 2008 – to expand the definition of what constitutes a covered “disability.”  In our experience, politicians are reluctant to take any action that would be viewed as being harmful to people with disabilities.  Thus, earlier efforts to amend the law to curb lawsuit abuse were unsuccessful.  More recently, in response to the surge in the number of ADA Title III lawsuits, business groups have again pushed for reform legislation to address so called “drive-by” lawsuits.  These lawsuits are brought by serial plaintiffs who have filed hundreds of cases and are not likely to be real customers seeking to access the goods and services of a targeted business.  Bills introduced in the House and Senate to address this situation may gain more traction with a Republican President and Republican-controlled Congress.  That said, the Trump administration will have many higher priority items to push through Congress, so we doubt that the law will change any time soon.  Because changes to the law are unlikely, we do not foresee a decrease in the number of ADA Title III lawsuits filed in the coming years.

The impact of a Trump administration will most likely be felt at the DOJ, which is responsible for issuing ADA Title III regulations and enforcing the law.  The Trump administration will appoint a new Assistant Attorney General for Civil Rights, as well as the deputies and counselors who will oversee the Civil Rights Division.  The Disability Rights Section (DRS) – which has responsibility for the ADA – is within this Division.

The new Assistant Attorney General for Civil Rights and his or her political appointees will set the regulatory and enforcement agenda for DRS.  On the regulatory front, DOJ is currently working on proposed rules for websites, equipment and furniture, and movie captioning and audio description.  The new leadership will need to review and provide policy direction on those proposed rules, which could result in further delays.  The review will likely affect the content of those rules as well.  One significant question that the DOJ has posed for public comment concerning the proposed website rule is whether there should be less demanding standards for small businesses.  Although DOJ has, in the past, refused to create less stringent rules for small businesses, a Trump administration may be more sympathetic to the plight of small business owners in these upcoming regulations.

It is also possible that a Trump administration would simply abandon all rulemakings currently under development, given the President-elect’s stated aversion to regulations generally.  Such an action would actually be harmful to businesses which need certainty about their obligations, especially when it comes to their websites.  The absence of regulations has created a vacuum that plaintiffs’ attorneys are filling with a tsunami of demand letters and lawsuits that are catching businesses by surprise.  The issuance of clear and sensible rules would put an end to this chaos, and the Trump administration should instead work quickly to issue them.

With respect to enforcement, a Trump administration may be less inclined than the current one to pursue actions that would expand the existing boundaries of the law.  For example, one DOJ enforcement stance that we have found troubling is its aggressive effort to pressure businesses to immediately make their websites and mobile apps accessible in conformance with a privately developed set of accessibility guidelines, even though DOJ has not issued even proposed regulations that would adopt a technical standard for what constitutes an accessible website and set a date for compliance with that standard.  It is possible that a Trump administration would discontinue these enforcement actions until a final rule is issued, although we would be surprised if this actually took place.

For now, all we know is that there likely be some change, and we will be here to report it to you when it happens.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses should seek advice now on how to manage risk in this chaotic environment.

As we predicted, website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar.  More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.  The number of lawsuits filed in federal court since the beginning of 2015 has surged to at least 244 as of October 20, 2016.  Retailers have been the most popular targets, followed by restaurant and hospitality companies.

Number
Number of federal website lawsuits by industry from January 2015 to October 20, 2016: Academic (3), Dating Services (1), Entertainment (9), Financial (2), Gaming (1), Hospitality (12), Insurance (1), Medical (8), Personal Services (4), Restaurant (45), Retail (148), Sports (2), Utility (1), Vehicle Manufacturer (7)

We analyzed the data to find that five firms dominate the space, but we have seen more and more attempting to get in on the action.

Plaintiff's firms filing the most federal website lawsuits since January 2015: Block Leviton (3%), Carlson Lynch (45%), Law Office of Joseph R. Manning Jr. APC (7%), Lee Litigation Group (33%), Nelson Boyd (5%), Newport Trial Group (19%), Scott R. Dinin, PA (106%), Stewart, Murray & Associates Law Group (6%), Other Firms (8%)
Plaintiff’s firms filing the most federal website lawsuits since January 2015: Block Leviton (1%), Carlson Lynch (18%), Law Office of Joseph R. Manning Jr. APC (3%), Lee Litigation Group (14%), Nelson Boyd (2%), Newport Trial Group (8%), Scott R. Dinin, PA (43%), Stewart, Murray & Associates Law Group (3%), Other Firms (8%)

Florida, Pennsylvania, New York, and California federal courts have 95% of the lawsuits at this point, but, with two months left in the year, that could change.

States with the most federal website lawsuits being filed since January 2015: California (29), Massachusetts (5), Pennsylvania (43), Washington (5), Florida (124)
States with the most federal website lawsuits since January 2015: Arizona (1), California (29), Florida (124), Indiana (1), Massachusetts (5), New York (35), Pennsylvania (43), Texas (1), Washington (5)

We have previously reported that several law firms representing unnamed clients with disabilities had sent out hundreds of demand letters to various types of businesses concerning their allegedly inaccessible websites.  From what we can tell, very few of those demand letters went to financial services institutions.  We have learned that the most recent batch of demand letters is focused on the websites of community banks around the country.

Meanwhile, we still have no proposed regulations for public accommodations websites from the DOJ and a change in administration could derail or delay the rulemaking process further.  Thus, the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.

Edited by Kristina M. Launey.

*We updated this post to correct the data, as we found the number of lawsuits filed to be even higher than we previously reported. There is no easy way to track these website cases as they are filed so the numbers could be even higher.

Seyfarth Synopsis: In yet another effort to reduce ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation to encourage tenants and landlords to acknowledge and address any accessibility issues during lease negotiations.

On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 – the second new disability access reform law of the year – in the state’s continuing effort to address the huge number of accessibility lawsuits. This bill, which became effective immediately, seeks to ensure that prospective commercial real estate tenants are notified of known construction-related accessibility violations during the course of lease negotiations so that owners and tenants have the opportunity to decide how any violations will be addressed and avoid future ADA lawsuits.  AB 2093 is similar to a piece of California’s last large-scale attempt at disability access reform, SB 1186 of 2012, which required a commercial property owner to state on a lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a certified access specialist.

AB 2093 takes the 2012 legislation one step further and requires commercial property owners to state on every lease or rental agreement executed after January 1, 2017, whether the property being leased or rented has been inspected by a California Certified Access Specialist (CASp) for compliance with construction-related accessibility standards.  If it has, and there have been no alterations affecting accessibility since, the owner must provide the prospective tenant a copy of the CASp report at least 48 hours prior to the execution of the lease or rental agreement.  Any necessary repairs are deemed the responsibility of the owner unless the landlord and tenant contractually agree otherwise.  If the CASp report indicates the property meets applicable accessibility standards, the owner must provide the report and CASp certificate to the tenant within seven days of the execution of the lease or rental agreement.

If the property has not been CASp-inspected, the owner must include specific language in the lease or rental agreement notifying the prospective tenant that: (a) a CASp can inspect the property and determine whether the property complies with construction-related accessibility standards; (b) a CASp inspection is not required by law; (c) the owner may not prohibit the tenant from obtaining a CASp inspection of the property; and (d) the owner and tenant shall mutually agree on the terms of the CASp inspection, including time, payment of fees, and allocation of responsibility for making any required corrections to accessibility violations identified in the CASp report.

Earlier this year, the Governor signed into law SB 269, which largely sought provide small business owners with some relief and protect businesses against liability for certain “technical” violations.  Both bills come on the heels of 2015’s AB 1521, which imposed procedural and substantive prerequisites to a “high-frequency litigant” filing a lawsuit in California state courts.

AB 2093 is intended to raise the issue of the existence of possible violations of the ADA and California accessibility laws during the course of commercial property lease negotiations to encourage business owners to make any necessary repairs in a proactive manner, rather than making repairs as a reaction to a future ADA lawsuit from a plaintiff seeking the $4,000 per violation bounty offered by California’s disability access laws.   Only time will tell if this latest effort at reform will make any difference in mitigating the huge, and growing number of disability access lawsuits in California (and across the country).  For those of you closely following state government attempts to intervene and quell the proliferation of disability access lawsuits, read about the Arizona Attorney General’s recent action here.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis:  Massachusetts recently enacted its first statewide ride-sharing law requiring companies like Uber to provide accessible transportation for individuals with disabilities.

On the heels of news that Uber and the National Federation of the Blind (“NFB”) settled their federal court lawsuit in California, which began with a fight over whether Uber is subject to Title III of the ADA as a place of “public accommodation” or a “specified public transportation service,” Massachusetts is taking ride-sharing accessibility matters into its own hands.

Massachusetts enacted its first ride-sharing law last month which – though not the first of its kind – continues the nationwide trend of states and cities implementing ride-share regulations.  What is novel is Massachusetts’s specific prohibition on these companies from discriminating against individuals with disabilities, a requirement that they provide wheelchair accessible vehicles, and a mandate that they provide accommodations to individuals traveling with service animals. Massachusetts’s new law is far broader than the recent California settlement, which was limited to only Uber and an agreement to provide accommodations to individuals with service animals.

The Massachusetts law also prohibits ride-sharing companies from charging higher fares or fees to individuals with disabilities and requires that they demonstrate that they have “an oversight process in place” to ensure their compliance with the new law and with all nondiscrimination laws in all “areas” (which is not defined) in which they operate.  The law also requires ride-sharing companies to have “established procedures governing the safe pickup, transfer, and delivery of individuals with visual impairments and individuals who use mobility devices, including … wheelchairs, … walkers, and scooters.”

The Massachusetts Department of Public Utilities (“DPU”) is responsible for drafting detailed regulations to support and enforce this new law and will likely provide guidance to companies as to the “oversight process” and ‘procedures’.”  DPU has announced that it looks forward to “implementing one of the most comprehensive ride-for-hire laws in the country to support innovation, public safety, and accessibility for those with special accommodation needs.”

The new law also calls for the formation of a task force, which will include a representative of the Disability Law Center, Inc., a Massachusetts non-profit disability advocacy organization, to consider the establishment of a Massachusetts Accessible Transportation Fund.  This Fund will be credited with annual surcharges from ride for hire companies that do not, as determined by the task force, provide sufficient wheelchair-accessible service.  The task force is required to file a report with the Massachusetts Legislature of its recommendations and proposed legislation by July 1, 2017.

Edited by Kristina Launey.

Seyfarth Synopsis:  The number of access lawsuits has surged in both Arizona state and federal courts, prompting an unprecedented intervention by the Arizona Attorney General.

By our count, nearly 300 ADA Title III lawsuits have been filed in federal court in Arizona this year to date.  This number represents a dramatic increase from 2015 when only 207 lawsuits were filed for the entire year.  In 2013 and 2014, there were only 20 and 8 of such lawsuits, respectively.

Four plaintiffs filed 284 of these nearly 300 2016 Arizona federal court lawsuits:  Damien Mosley (132 suits), Advocates for Individuals with Disabilities Foundation, Inc. (AIDF) (57 suits); Advocates for Individuals with Disabilities LLC (AID) (formerly known as Advocates for American Disabled Individuals, LLC (AADI)) (71 suits); and Santiago Abreau (24 suits).

Even more astonishing is the number of cases AIDF and AID/AADI have filed in Arizona state court under the Arizonians with Disabilities Act (AzADA) since January 2015.  The AzADA is similar to the federal ADA but allows plaintiffs to recover compensatory damages.  Under the ADA, prevailing private plaintiffs can only obtain injunctive relief and attorneys’ fees and costs.

The number of lawsuits filed by AIDF, AID, and AADI in Arizona state court (all in Maricopa County) in 2015 and 2016, according to our own research, are:

  • AID/AADI: 503 cases
  • AIDF: 1121 cases

In total, these plaintiffs have filed 1,624 cases since the beginning of 2015.  Compare that to the 584 suits filed in Arizona federal courts since the beginning of 2015.  Then compare that to the data we’ve collected on lawsuits filed in other states and nationwide.

Apparently alarmed by the number of suits flooding the Arizona court system, the Arizona Attorney General has filed a motion asking the Arizona state court in Maricopa County to consolidate all of the pending cases filed by AADI and to allow his intervention to stop what he calls a “systemic abuse of the judicial system.”  The motion provides two grounds for intervention.  First, it states that these lawsuits “imperils the State enforcement regime established by the Legislature” by signaling to other plaintiffs that it is more profitable to file these private suits than to utilize the state’s investigation and enforcement regime created by the AzADA which provides opportunities for a pre-litigation resolution.  Second, the State of Arizona has a strong interest in how the courts apply and interpret the AzADA’s statutory scheme.

Though outcry over the years over ADA lawsuit abuse has been consistent, as well as multiple legislative attempts at reform with little meaningful effect, we are not aware of any other instance when an enforcement agency has stepped in to address the actions of a serial plaintiff.  We will keep you updated on the developments.

Edited by Kristina Launey.

Seyfarth Synopsis: DOJ announced today an extension to October 7, 2016 for the public to submit comments on the SANPRM for state and local government websites.

In May of this year the Department of Justice surprised us by issuing a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM), rather than – as all expected – actually issuing a proposed regulation for state and local government websites under Title II of the ADA.  In the SANPRM the DOJ seeks public input on well over 100 of tentative positions that it may take in a proposed regulation, including input on the costs and benefits of such a proposed rule.  The SANPRM imposed an August 8, 2016 deadline for submission of public comments.  Today, the DOJ extended the comment period by 60 days to October 7, 2016 after receiving three comments requesting extensions.  DOJ cited the effect these Title II regulations will have on the Title III web accessibility regulations as a reason for this extension: “[a] Title II Web accessibility rule is likely to facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”  DOJ also noted that “further delays in this Title II rulemaking will, therefore, have the effect of hindering Title III Web rulemaking’s timeline as well” – further answering questions we’ve heard from many as to how interdependent these two regulatory processes really are.

This highlights the importance of organizations representing various sectors that own or operate “public accommodations” to weigh in on these important issues – which the DOJ has expressly stated will directly impact it future proposed rule for public accommodations websites, currently slated for 2018.  If your industry association has not drafted comments, this extension provides you the opportunity – there is still time.

For an overview of the key issues that warrant comment by public accommodations now, please see our prior post.


In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy:  The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114.  If the pace continues, the 2016 total may top 7,000.  To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits.  The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position.  Arizona, with 230 lawsuits, has beaten out Texas.  Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities.  We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Seyfarth Synopsis: Pennsylvania court rules that a museum violated the ADA when it refused to waive the entry fee for a guest’s personal care assistant. 

A federal district court judge in Pennsylvania court recently held that Title III of the ADA required the Franklin Institute (“FI”) to waive the admission fee for the personal care assistant (“PCA”) of a person with a disability to attend a movie screening at the museum.  Title III of the ADA requires public accommodations to make reasonable modifications to their normal policies practices and procedures where necessary to ensure access for individuals with disabilities, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services being offered.  The court found that waiving the fee would not pose an undue burden or result in a fundamental alteration in this case.

FI argued that free entry would result in dramatic economic consequences to the museum, including deficits, ineligibility for grants, elimination of services, budget cuts and ultimately layoffs.

The judge disagreed with colorful prose, finding no loss of revenue and nothing more than a de minimus added cost to FI; calling FI’s arguments “worthy of the antagonist in a Dickens novel.”   The judge noted that the museum’s existing practice of providing folding chairs for PCAs to sit next to wheelchair users would not cost the museum any money because the folding chairs were not normally sold to patrons.  The court also noted that FI spends substantial sums on charitable efforts and gives reduced price tickets to people who cannot afford to pay.  The court criticized FI’s argument that parents or babysitters of children must pay for entry, noting that individuals with disabilities are not the same as children.

While a well-heeded cautionary tale, this case is not of universal applicability.  It does not mean museums and other institutions must always let companions in for free.  Rather, places of public accommodation must take their obligation to make reasonable modifications to policies, procedures, and practices seriously, and conduct a meaningful analysis of whether making the modification would really impose an undue burden or result in a fundamental alteration.  The decision also serves as a reminder that disability access defenses are highly fact intensive and cannot be decided early in a case.  The practical approach in some cases may be to make the modification rather than watch fees increase in the process of litigating a case.

Edited by: Minh N. Vu & Kristina Launey