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When disabilities conflict with concert enjoyment

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ALBANY, N.Y. -- Stuart and Suzanne Delman ended up leaving the opening night of the Saratoga Chamber Music Festival in August because of noise from a fellow patron's portable respirator.

When they saw the same man with his respirator in the lobby before another chamber event later in the series, the Delmans never entered the theater.

"I understand he had the right to be there, but I don't think it's unreasonable for me to expect it to be quiet for a chamber concert in such a small, intimate hall. Allowing one person to detract from the music is disrespectful to the performers and everyone else in the audience," says Delman, a Lake George, N.Y., dentist and former professional oboist.

Concert officials, he says, were unmoved. "They were just worried about being sued" under the Americans with Disabilities Act if they asked the patron with the respirator to depart, he says.

"We're sorry it was a problem for him, but we will not ask someone with a disability to leave. We just won't do it," says Marcia White, president and executive director of the Saratoga Performing Arts Center, which mounts the chamber series each August in conjunction with the SPAC amphitheater residency of the Philadelphia Orchestra.

The incident seems unlikely to be representative of a frequent problem. White says she couldn't hear the humming noise that night, and no one besides the Delmans complained.

Also, local disability advocates say they have never encountered such a situation before. It seems safe to say that most members of audiences at concerts are not being distracted by noisy respirators.

But the situation does illustrate a larger issue for performance venues, one that is unclear both legally and morally: what to do when the accommodation necessary to allow a person with a disability to take in a show conflicts with other patrons' enjoyment.

At Proctor's Theatre in Schenectady, N.Y., a concertgoer who is allergic to peanuts asked that their sale be banned, because even the smell could induce a deadly reaction.

Peter Lesser, executive director of The Egg in Albany recalls concerts when some people in the audience with developmental disabilities would make disruptive noises or vocalizations during performances.

At Capital Repertory Theatre, also in Albany, some theatergoers have objected to being seated behind others in bulky wheelchairs, says Maggie Mancinelli-Cahill, the theater's producing artistic director.

And, says Cliff Zucker, executive director of Disability Advocates Inc. in Albany, the presence of a service animal, such as a guide dog for a blind audience member, might require relocating another patron with allergies.

In each case, the theater managers all say, they strive to do the right thing, firmly believing in access for those with disabilities, even if that means minor inconvenience for others.

However, they remain conflicted about diminishing anyone's experience.

Says Mancinelli-Cahill, "We're required to provide handicapped seating in both the center and side sections." The theater is small, meaning someone else is likely to end up in a seat behind a wheelchair, and objections about limited sightlines sometimes come up.

She says, "We try to be responsive, offer them a new seat, a refund or a credit. The fact is, we have to be compliant with the law."

Under the landmark Americans with Disabilities Act, passed in 1990, public accommodations, including performance venues, have a legal obligation to make "reasonable modifications" in their "policies, practices and procedures," when necessary, to provide services to a person with a disability. But, the law goes, the requirement does not mandate a "modification (that) would fundamentally alter the program."

Asked to interpret how the law might apply to the respirator situation, Eric Holland, an ADA specialist with the federal Department of Justice, in Washington, D.C., concluded: "A concert hall would have an obligation to allow in a person with a respirator, even if it made some noise. However, if it made so much noise that it objectively bothered the other customers, then that might be a fundamental alteration."

The law, then, has gray areas, subject to interpretation. For the Delmans, the first concert was fundamentally altered, and they refused to go to the second because the respirator was present.

(They're also still steamed that, though promised a refund for both concerts, they have so far, two months later, received only half their money back.)

Most others in the audience were apparently unbothered. Had the device been as loud as a Harley-Davidson, White says, she would have asked its owner to leave, offering apologies and a refund.

As Lesser, The Egg's director, says, "You can't ask someone to turn off a machine that's keeping them alive. If it's bothering 400 other people, it has to go."

When the situation is less clear, people on all sides have to try to be understanding and tolerant of one another, managers and advocates say.

"If there's a problem, we remind people that the arts are about humanity, about all of us being human, and we've all got frailties and failings," says Mancinelli-Cahill.

Adds Zucker, the disability advocate: "Whenever you rub elbows with other people, there's the potential for conflict. It's never absolutely silent at a classical concert people cough, they talk, they move in their seats. In most instances, if people are considerate of others, they ought to be able to resolve things by being flexible and trying to accommodate each other."

c.2005 Albany Times Union

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