Comments relating to Saunas, Steam Rooms, Exercise Machines, Team/Player Seating Areas, Areas of Sports Activity

ADA Title II covers state and local government-run recreational programs and facilities and ADA Title III covers privately own recreational programs and facilities open to the public. The proposed ADA regulations adopt new accessibility standards (the 2004 ADAAG) for saunas, steam rooms, exercise equipment, team or player seating areas and areas of sports activities which were not covered in the old standards (the 1991 ADAAG). However, the Department is proposing a specific exemption from the accessibility requirements for saunas and steam rooms and is asking questions (Questions #34, #35, #36 for Title II and Questions #40, #41, #42 for Title III) about these other elements.

Comment on Saunas and Steam Rooms

We object to the reduced accessibility proposed for saunas and steam rooms. The sole justification offered by the Department is the fact that prefabricated 2-person saunas may not be large enough to meet the 2004 ADAAG’s turning space requirement. But the remedy the Department proposes is way out of proportion to this “problem.”

No regulatory exception is required because the cost of accessibility is not that high. The saunas involved typically sell new for between $1000 and $2000 dollars. Selling a used (inaccessible) one and replacing it with a larger one is simply not that burdensome. Even if the cost were prohibitive, a state or local government operating a facility with a sauna or steam room would be is excused from accessibility if it would impose an “undue” financial burden. 28 C.F.R. § 35.150(a)(3). Public accommodations operating a sauna or steam room have a barrier removal obligation that is subject to a readily achievable standard, which only requires changes that are easily accomplishable and carried out without much difficulty or expense. 28 C.F.R. § 36.304(d)(4)(iii). If a one- or two-person sauna or steam room does not meet the technical provision that requires a wheelchair turning space, that will be a factor in the program access or readily achievable analysis.

Comment on Exercise Equipment Questions

In Title II Question 34 and Title III Question 40, the Department asks: Will existing facilities have to reduce the number of available exercise equipment and machines in order to comply? What types of space limitations would affect compliance?

To the extent that this question is a precursor to reduced scoping in this area, we do not see its usefulness. Exempting small existing gyms will write off the majority of hotel/motel gyms and exercise spaces, which are important to travelers with disabilities. Moreover, though the size and layout of exercise rooms varies widely, this variety is already adequately addressed by the flexibility of the “program access” standard applicable to state and local government programs and facilities in 28 C.F.R. § 35.150(a), and by the availability in 28 C.F.R. § 35.150(a)(3) of exceptions to barrier removal that would pose an undue financial or administrative burden, or a fundamental alteration. For exercise equipment in public accommodations, the barrier removal obligation is subject to a readily achievable standard, which only requires changes that are easily accomplishable and carried out without much difficulty or expense.. 28 C.F.R. § 36.304(d)(4)(iii).

Comment on Team or Player Seating Questions

In Title II Question 35 and Title III Question 41 the Department asks: Are team or player seating areas in certain types of existing facilities (e.g., ice hockey rinks) more difficult to make accessible due to existing designs? What types of existing facilities typically have design constraints that would make compliance with this requirement infeasible?

We have no particular information to provide in response to these questions, but we observe that in every location we can think of, including ice-hockey team seating areas that we have seen, there are ways to comply with ADAAG §§ 221.2.1.4 and 802.1 that would not require either an undue burden or a fundamental alteration.

Comment on Question about Areas of Sport Activity Operated by a State or Local Government

Title II Question 36 asks: Should the Department create an exception to this requirement for existing courts (e.g., tennis courts) that have been constructed back-to-back without any space in between them?

The reasonable-number-but-at-least-one standard rather than all will result in only one playing field being served by an accessible route. This is almost guaranteed to result in many people confronting architectural barriers.

By way of example, consider a city park with six soccer fields used by a youth league. If the fields are all used at the same time (as is typically the case on the weekends), there could easily be 180 participants or more. If there are an equal number of parents and other spectators, one can reasonably assume that there will be seven parents and spectators who need an accessible route (using the standard 5% scoping throughout the ADAAG), and that the games they are watching are spread among all the fields. On average, five or six parents will be unable to watch their children’s games.

Responding directly to Question 36 above, we have no particular information to provide in response to the question about back-to-back courts but we observe that in every such arrangement of sports areas that we have seen that include back-to-back courts, there are ways to connect each side of the courts by an accessible route without requiring either an undue burden or a fundamental alteration.

Comment on Question about Areas of Sport Activity Operated by Public Accommodations

In Question 42, the Department asks: Should the Department interpret the barrier removal requirement to require only a reasonable number but at least one of each type of playing field to be served by an accessible route? Should the Department create an exception to this requirement for existing courts (e.g., tennis courts) that have been constructed back-to-back without any space in between them?

With regard to the first question in 42 above, we should be clear that in reality, the reasonable-number-but-at-least-one standard will result in only one playing field being served by an accessible route. This is almost guaranteed to result in many people confronting architectural barriers.

By way of example, consider a privately owned sports park with six soccer fields used by a youth league. If the fields are all used at the same time (as is typically the case on the weekends), there could easily be 180 participants or more. If there are an equal number of parents and other spectators, one can reasonably assume that there will be seven parents and spectators who need an accessible route (using the standard 5% scoping throughout the ADAAG), and that the games they are watching are spread among all the fields. On average, five or six parents will be unable to watch their children’s games.

With regard to the second question in number 42 above, we have no particular information to provide in response to the question about back-to-back courts but we observe that in every such arrangement of sports areas that we have seen that include back-to-back courts, there are ways to connect each side of the courts by an accessible route without requiring either an undue burden or a fundamental alteration.

We opposed the exemption from the barrier removal requirements for small facilities proposed in 36.304(d)(4)(iii).