August 2017 - Parks & Recreation - 30

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ity required the " entirety of the Grape
Bowl " to meet or exceed the 2010 ADA
accessibility guidelines (ADAAG). In
failing to do so, Smith argued the city
had created a " discriminatory barrier "
in violation of the ADA. The federal district court rejected this argument.
While acknowledging the ADAAG
" must be met by any alterations that occurred after January 26, 1992, " the court
noted ADAAG requirements " do not
apply to existing structures. " Further,
the federal district court found Smith
had not offered " any case law or statute
to support the position that any alterations to an existing facility then ushers
the facility as a whole " under existing
2010 ADAAG requirements (28 C.F.R.
§ 35.151(b)).

ily achievable " (42 U.S.C. § 12182(b)(2)
(A)(iv)). Moreover, for existing facilities,
the federal district court noted that " a
public entity need only provide program
access " when the facility " viewed in its
entirety, is readily accessible to and usable by individuals with disabilities " (28
C.F.R. § 35.150(a)).
That being said, under this " lesser standard " of program accessibility for existing facilities, the court acknowledged
" mere physical access is not sufficient. "
Rather, the court found " Title II requires
public entities to provide " meaningful
access " to their programs and services. "
Further, in providing such meaningful
access, the court found the ADA would
require public entities to " give priority to
those methods that offer services, pro-

Alterations are defined as a 'change in a building or
facility that affects, or could affect, the usability of a
building or facility or a portion thereof' (ADA Standards
Section 202.3).
On the contrary, the federal district
court found " alterations commenced
after the ADA's effective date, must, to
the maximum extent feasible, be made in
such a manner that the altered portion of
the facility is readily accessible to and usable
by individuals with disabilities " (Emphasis of Court). As a result, the court found
the " program accessibility " standard, not
the 2010 ADAAG requirements, would
apply " to those parts of the Grape Bowl
that have not been altered. "
Program Accessibility
As cited by the federal district court, program accessibility discrimination within
the context of existing facilities would
include " a failure to remove architectural barriers where such removal is read26

Parks & Recreation

grams and activities to qualified individuals with disabilities in the most integrated setting appropriate. "
As described by the federal district
court, Title II's emphasis on " program
accessibility " rather than " facilities accessibility " for existing facilities was " intended to ensure broad access to public
services, while, at the same time, providing public entities with the flexibility to
choose how best to make access available. " Accordingly, for existing facilities,
the court emphasized " [a] public entity is
not required to make structural changes
in existing facilities where other methods
are effective in achieving compliance "
(28 C.F.R. § 35.150(b)(1)).
As cited by the federal district court,
the U.S. Supreme Court had charac-

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terized the ADA " program accessibility " requirement for existing facilities
as follows:
[T]he reasonable modification requirement can be satisfied in a number
of ways....In the case of older facilities,
for which structural change is likely to be
more difficult, a public entity may comply with Title II by adopting a variety of
less costly measures, including relocating
services to alternative, accessible sites....
Only if these measures are ineffective
in achieving accessibility is the public
entity required to make reasonable structural changes. And in no event is the
entity required to undertake measures
that would impose an undue financial or
administrative burden, threaten historic
preservation interests, or effect a fundamental alteration in the nature of the
service §§ 35.150(a)(2), (a)(3).
Football Game Seating and Parking
In his complaint, Smith had alleged that
there were " no wheelchair seats available
on the north side of the stadium and only
14 seats available on the south side. " According to Smith, ADA standards would
require 36 wheelchair seats for an assembly area with more than 5,000 total seats,
plus one additional wheelchair seat for
each 200 additional seats over 5,000.
Smith had also argued the parking was
deficient on the north side of the facility.
In so doing, Smith acknowledged there
were " four apparently ADA-compliant
parking spots servicing the south side of
the Stadium, " but there were " no comparable spots servicing the north seating
area. " As cited by Smith, Section 208.3.1
of the 2010 Americans with Disabilities
Act Standards (ADAS) would require
" parking spaces serving a particular
building or facility be on the shortest accessible route to the facility entrance. "
In response, the city argued it did
" not have to follow the strict technical guidelines applicable to post-1992
August 2017 - Parks & Recreation

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