Office of Technical and Information Services
Architectural and Transportation Barriers Compliance Board
1331 F Street, N.W.
Washington, D.C. 20004-1111
Subject: Response to Request for Comments
Americans with Disabilities Act Accessibility Guidelines for Large Passenger Vessels
Docket No. 2004-1
Dear Sir or Madam:
The American Gaming Association (“AGA”) is pleased to submit comments in response to the Architectural and Transportation Barriers Compliance Board’s (“Access Board”) Notice of Availability of Draft Guidelines regarding the application of the Americans with Disabilities Act (“ADA”) to large passenger vessels, 69 Fed. Reg. 69243 (Nov. 26, 2004). These comments are being submitted by the AGA and state associations on behalf of their member companies listed at the end of this letter, each of whom represents or is constituted of companies that own and operate vessels that are potentially subject to the forthcoming regulations. The AGA thanks the Access Board and the Department of Transportation (“Department”) for the opportunity to file comments upon this important matter and looks forward to working with both organizations to develop sensible regulations.
The gaming industry supports the goals of the ADA and recognizes the importance of providing accessible facilities so that all of our patrons have full and equal enjoyment of the gaming experience. We have always welcomed patrons with disabilities and continue to value their patronage. In fact, the Department recognized the gaming industry’s track record of compliance with the ADA in a 1995-96 study conducted by the Volpe National Transportation Systems Center (“Volpe Study”), which stated that “Coast Guard inspectors have observed that all gaming boats have come into service with full access, including elevators.” Volpe Study at 15.
We are writing in an effort to increase the Access Board’s understanding of the gaming industry’s needs and day-to-day practical concerns with respect to gaming vessels. Our goal is to assist the Access Board in drafting passenger vessel guidelines that promote the goals of the ADA while taking into account the constraints and challenges facing gaming vessels.
Gaming Industry Overview
The AGA represents the interests of the commercial casino entertainment industry. We serve as the industry’s first national information clearinghouse, providing the media, elected officials, decision makers and the public with timely and accurate gaming industry data.
In 2004, 445 commercial casinos in eleven states generated nearly $29 billion in gross gaming revenue. Commercial casinos are an important source of employment in many communities, with 350,000 employees throughout the United States in 2004. In addition to providing more than $12 billion in direct wages, the industry contributed more than $4.74 billion in direct gaming taxes to state and local economies.
Approximately one out of every four members of the U.S. population – approximately 54.1 million individuals – visited a casino in 2004, making a total of 319 million trips. Many of these patrons visited our riverboat or dockside facilities, which range from old-fashioned riverboats to modern barges.
Scope of Comments
As we have stated above, we appreciate the opportunity to collaborate with the Department and the Access Board and look forward to working with both organizations to develop guidelines and rules that are fair and reasonable within the statutory framework. Our members are committed to ensuring accessibility for our patrons, and we emphasize that we are not requesting a blanket exemption from the ADA for gaming vessels.
In its ANPRM, the Department acknowledged that the “marine industry’s unique missions and operating environment” dictated the need for a separate rulemaking for passenger vessels. Nondiscrimination on the Basis of Disability: Passenger Vessels, 69 Fed. Reg. 69246, 69247 (Nov. 26, 2004). As the Volpe Study recognized, accessibility is particularly challenging in the case of passenger vessels due to their “function in a dynamic, waterborne environment.” Volpe Study at 13. In addition, the Study noted that space is a critical issue for many passenger vessels, especially where “passenger capacity is determined by available seating.” Volpe Study at 18. Because these environmental characteristics and spatial limitations are common to all vessels, including gaming vessels, we expect that the maritime industry will address the accessibility challenges faced by all passenger vessels. Thus, our comments will focus on the issue that is unique to gaming vessels – namely, the gaming floor. In other words, our comments will not address generic accessibility issues (such as those involving handrails, restrooms, or ramps) that will affect all vessels regardless whether the vessel is used for gaming. For the same reasons, our comments will not address the interaction of the draft Access Board provisions with existing Coast Guard rules.
Application of Regulations to Permanently Moored Vessels
While many of our vessels formerly traveled fixed routes on regulated schedules, today’s gaming vessels in all jurisdictions are either permanently or continuously moored. See http://www.americangaming.org/Industry/state/statistics.cfm?stateid=8888. Some of these were constructed as vessels intended for cruising; others were constructed to rest in enclosed waterways and do not even have engines. Some are traditional riverboats, while others are like barges. Some have Coast Guard certificates of inspection (“COI”); others do not. However, while these gaming vessels may not fall within some of the judicial definitions of “vessel” for federal regulatory purposes, in every case these are considered “vessels” for purposes of those state gaming laws that prohibit the granting of gaming licenses to land-based facilities.
Because all of these gaming vessels are located on the water and are subject to significant space constraints, all gaming vessels share many of the characteristics of other vessels that make ADA compliance particularly challenging. Thus, regardless of a gaming vessel’s individual characteristics, we believe that all gaming vessels should be subject to the Department’s ADA regulations for passenger vessels. This is especially crucial to those vessels that have changed or are in the process of changing their legal status from continuously moored (meaning that they hold a Coast Guard COI and are capable of cruising from point to point) to permanently moored (entailing loss of their COI and potential disabling or removal of their engines); the applicable regulatory regime should not change from that governing passenger vessels to that governing facilities. In short, it makes sense for the passenger vessel regulatory regime to apply to all gaming vessels, including those that are not capable of getting underway. Accordingly, we have asked the Department to make this clarification in its final regulation.
Casino Gaming Floors Constitute Assembly Areas
The gaming floor of a casino vessel constitutes a “portion . . . of the vessel used for the purpose of entertainment” and, therefore, falls within the definition of an assembly area as set forth by the Access Board. Draft Passenger Vessel Accessibility Guidelines § V106.5 (Nov. 26, 2004). The definition of assembly area includes, but is not limited to “classrooms, lecture halls, passenger meeting rooms, motion picture houses, auditoria, theaters, playhouses, dinner theaters, and concert halls.” Id.
Our gaming vessel operators currently provide handicap-accessible slot machines and gaming tables in gaming areas. Accessibility on a typical gaming floor resembles that of a movie theater or concert hall, featuring strategic placement of accessible aisles to, around, and through certain areas on the floor. In addition to accessible aisles, operators ordinarily provide ADA-compliant seats at designated slot machines and gaming tables to enable patrons with disabilities to enjoy the gaming experience. The AGA members who operate gaming vessels are committed to providing the number and type of wheelchair accessible spaces as required in § V221 of the Draft Passenger Vessel Accessibility Guidelines, which governs Assembly Areas and Public Seating Areas.
The Department of Justice (“DOJ”) has repeatedly recognized that patrons who use wheelchairs may not be excluded from stadium-style seats in movie theaters under Title III of the ADA. Civil Rights Division; Nondiscrimination on the Basis of Disability in State and Local Government Services; Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 69 Fed. Reg. 58775-76 (proposed Sept. 30, 2004). DOJ has “emphasized that individuals who use wheelchairs need not be provided the best seats in the house, but neither should they be relegated categorically to locations with the worst views of the screen.” Id. Similarly, our vessel gaming floors are designed to ensure that disabled patrons have access to a sampling of gaming machines and tables that is comparable to the gaming floor as a whole.
We believe that this “assembly area” approach to the gaming floor strikes an appropriate balance between the needs and interests of disabled patrons to partake meaningfully in the many gaming experiences offered in our casinos and the acute space constraints of the gaming floors in vessels. We thus propose that the Access Board’s guidelines and the Department’s regulations regarding vessels specifically state that casino gaming floors fall within the definition of assembly areas so that our members can continue to provide appropriate access to disabled patrons without having to comply with clear width requirements for every aisle on the gaming floor.
Consequences of Imposing the Clear Width Requirement on Gaming Floors
A failure to recognize the gaming floor as an assembly area – and the concomitant requirement of the designated clear width for all aisles – would have a direct, significant, and immediate adverse impact upon casino revenue. While vessel gaming floors already provide wheelchair access via circumference routes and placement of wheelchair-accessible seating throughout the floor, requiring clear width between all aisles would inevitably cause a reduction in the overall number of gaming machines on the floor.
Unfortunately, imposing a clear width requirement on gaming floors portends more serious economic burdens than the Access Board and the Department may have contemplated. The Volpe Study purported to assess revenue impacts of compliance for various commercial vessels, but it did not account for revenue losses attributable to a loss of slot machines should the full clear width requirement be imposed uniformly throughout all gaming areas.
In one estimate made by an AGA member, the total annual impact of imposing the clear width requirement on a single gaming vessel would be $6.5 million annually. According to this estimate, compliance with the clear width requirement would cause each gaming floor to lose a number of gaming machines because the increased aisle width would leave less space available for machine placement. The typical gaming floor measured by our member would lose twenty machines to comply with the clear width requirement. Each machine provides approximately $300 in revenue per day. On a vessel with three gaming floors, for example, this would translate to a loss of $18,000 per day (20 machines per floor x 3 floors x $300 per day = $18,000). Multiplied by 365 days, the lost revenue would total $6.5 million per vessel per year. This direct loss of revenue additionally translates into lost corporate spending in the local community, lost jobs, and lost tax revenues, much of which will be felt by the community.
AGA’s Response to the Regulatory Assessment Plan (“RAP”)
Case studies. The Access Board requested comments on whether the types of passenger vessels proposed for the case studies fairly represent the types of vessels that should be included in the RAP. With regard to case studies, the Access Board’s Draft Plan for Regulatory Assessment stated that “[n]o gaming vessels were included because the issues present in them are expected to be present in the other vessels of the case studies.” While we agree that many of the compliance challenges facing gaming vessels are identical to those of other types of vessels, we respectfully request that the Access Board consider the unique effect of the forthcoming rules on our gaming floors, as we have already described.
Alterations. The Access Board also requested comments on the frequency of alterations of elements or spaces on passenger vessels. Our gaming vessel operators reconfigure gaming floors on a regular basis in order to provide our patrons with an optimal gaming experience. A typical reconfiguration involves changes to the placement of machines within a gaming floor, but does not involve significant changes to “structural parts or elements” of a vessel or remodeling, renovation, or reconstruction of the vessel. Draft Passenger Vessel Accessibility Guidelines § V106.5 (Nov. 26, 2004). Hence, we do not consider these floor reconfigurations to be alterations.
The American Gaming Association is committed to working with the Access Board and the Department of Transportation to advance the legitimate and laudable objectives of the ADA. We are confident that the Access Board can achieve a balance that meets the objectives of the ADA while accommodating the constraints of our gaming vessels.
Please let us know if you have any questions or concerns about this submission or any other aspect of the gaming industry’s compliance with the ADA. We would welcome the opportunity to arrange a site visit to a typical gaming vessel to demonstrate first-hand the nature of our operations.
Frank J. Fahrenkopf, Jr.
American Gaming Association
Members with Vessel-Based Operations
Alliance Gaming Corporation
Ameristar Casinos, Inc.
Argosy Gaming Company
Boyd Gaming Corporation
Harrah's Entertainment, Inc.
Isle of Capri Casinos, Inc.
Peninsula Gaming Corporation
Penn National Gaming, Inc.
Pinnacle Entertainment, Inc.
President Casinos, Inc.
Illinois Casino Gaming Association
Indiana Gaming Commission
Iowa Gaming Association
Casino Association of Louisiana