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By Turner D. Madden, Esquire

With the IAAM Annual Conference & Trade Show approaching in the nation’s capitol, here is an update on our recent activities in Washington, D.C. We continue to work with the United States Congress, federal agencies and federal departments. Currently, we are monitoring or working on the following issues:

Stadium Tax Bonds
The staff of the Congressional Joint Committee on Taxation has made a recommendation to Congress to eliminate tax-exempt bonds for sports facilities. Part of the “Options To Improve Compliance and Reform Tax Expenditures” prepared by the staff of the Joint Committee on Taxation, dated January 27, 2005, is available to you via the Congressional website. Currently, Congress has not taken any action on this issue but with the recent Congressional MLB hearings we will continue to watch this issue. The following is part of a report by the Congressional Joint Committee on Taxation:

“In 1986, Congress eliminated a provision expressly allowing tax-exempt financing for sports facilities. Nevertheless, professional sports facilities continue to be financed with tax-exempt bonds despite the fact that privately owned sports teams are the primary (if not exclusive) users of such facilities. This is because present law permits the use of tax-exempt bond proceeds for private activities if either part of the two-part private business test is not met. In the case of bond financed professional sports facilities, issuers have intentionally structured the tax-exempt bond issuance and related transactions to fail the private payment test. In most of these transactions, the professional sports team is not required to pay for more than a small portion of its use of the sports facility. As a result, the private payment test is not met and the bonds financing the facility are not treated as private activity bonds, despite the existence of substantial private business use. The proposal eliminates the private payment test for professional sports facilities. Under the proposal, bonds issued to finance a professional sports facility are taxable private activity bonds if more than 10 percent of the proceeds of the issue (including use of the bond-financed property) are to be used in the trade or business of any person other than a governmental unit, regardless of the amount of private security or private payments received with respect to such use.” See Joint Committee on Taxation document JCS-02-05.

House Bill S.103, Combat Meth. Act of 2005
Currently, there are three different versions of the bill that address the illegal production, distribution, and use of methamphetamine. The below section was included in the methamphetamine bills last year. The language is much too broad and includes all music venues. We are monitoring the bills to make sure they are not amended to include the below language. PROMOTERS OF DRUG ORIENTED ENTERTAINMENT.

“Whoever knowingly promotes any rave, dance, music, or other entertainment event, that takes place under circumstances where the promoter knows or reasonably ought to know that a controlled substance will be or distributed in violation of Federal law or the law of the place were the event is held, shall be fined under title 18, United States Code, or imprisoned for not more than 9 years, or both.”

Senate Bill (S.467) Terrorism Risk Insurance Extension Act of 2005
This bill would extend the applicability of the Terrorism Risk Insurance Act of 2002. It has been referred to the Committee on Banking, Housing, and Urban Affairs. The bill currently has 18 cosponsors in the Senate.

Status of New ADA Accessibility Guidelines (“ADAAG”)
Prior to the Access Board’s new guidelines having the force and effect of law, the Department of Justice (“DOJ”) must formally adopt the Access Board’s guidelines by following the administrative rulemaking process. The DOJ will then propose a set of rules and solicit public comments on those proposed rules. Then based on the comments, the DOJ will issue final rules that address how the DOJ will enforce the Access Board’s guidelines. Before publishing a proposed rule, the DOJ issued an Advanced Notice of Rulemaking (an extra public notice step) to seek public comments. The issues discussed below concern public assembly facilities.

First, the Department must set an effective date for the application of the revised ADA Standards to facilities that will be newly constructed or altered following the publication of a final rule. The DOJ is asking us to comment on what grace period we would like to have prior to the new rules taking effect. When the ADA was originally enacted, the effective dates for various provisions were delayed in order to provide time for facilities to become familiar with their new obligations. Title II and Title III of the ADA generally became effective on January 26, 1992, six months after the regulations were published. New construction under Title II and alterations under either Title II or Title III had to comply with the design standards on that date. For new construction under Title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993 – 18 months after the ADA Standards were published by the Department. Because the new regulations, in most cases, will significantly benefit assembly facilities by reducing the scoping for wheelchair seating, we are suggesting that the DOJ shorten the grace period to six months after notice of the final rules.

Second, the DOJ has been asked whether the regulations requiring the maintenance of accessible features in covered facilities would require existing assembly facilities that comply with the wheelchair scoping of the current ADA Standards to maintain that level of scoping, or if those assembly facilities would be permitted to reduce the number of wheelchair locations and companion seats to the level established in new ADAAG. The DOJ’s regulations contain two provisions that would apply to this situation. The regulations implementing Title II and Title III both provide that covered entities are to maintain in operable condition “those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities” (28 CFR 35.133 and 36.211). In addition, the current ADA Standards prohibit alterations that decrease accessibility below the requirements for new construction in effect at the time of the alteration, 28 CFR pt. 36, App. A, 4.1.6 (1) (a). Because these provisions clearly establish that assembly facilities must maintain only the required level of accessibility, the DOJ stated in the Advanced Notice of Rulemaking that it “expects that the operators of existing assembly areas who want to adjust the number of wheelchair spaces in their facility to comply with the revised ADA Standards will be permitted to do so.” We will indicate to the DOJ that IAAM supports their interpretation of the above provisions that allow facility managers to adjust the wheelchair scoping to the reduced levels to comply with the revised ADA Standards. The DOJ Notice of Rulemaking should be issued this summer.

Dept. of Homeland Security ("DHS") Vulnerability Self-Assessment Online Tool.
As you know, the primary focus of the DHS Online Vulnerability Self-Assessment Tool (“ViSAT”) is to prevent, deter and mitigate the effects of terrorism. The ViSAT establishes an extensive security baseline that assists facility managers in creating a comprehensive security plan. Because DHS incorporated IAAM’s “Best Practices for Safety and Security” with many of its own protective security measures into the ViSAT, the quality and quantity of the ViSAT is enhanced and specifically tailored for public assembly facilities. IAAM is attempting to assist DHS with the increased participation of the ViSAT. The ViSAT is currently only available to public assembly facilities located in the United States. DHS is working with the Department of State to make this program available to IAAM’s international members. We expect to see some progress on sharing the ViSAT with our international members by the end of this calendar year. Also, IAAM has invited the Secretary of the Dept. of Homeland Security, Michael Chertoff, to speak at IAAM’s Annual Conference & Trade Show (in partnership with NAC) in Washington, D.C.

DHS “Official” Sponsorship of the IAAM Academy for Venue for Safety & Security (AVSS)
We are seeking a “sponsorship” from the Office of Domestic Preparedness of DHS for IAAM’s Academy for Venue for Safety & Security. This “sponsorship” would place the AVSS on a DHS list that allows state and municipal public safety personnel to use certain grant funds to attend the AVSS. The “sponsorship” would help IAAM promote the program to cities and state personnel that deal with public assembly facilities and major events.

DHS Commercial Sector Coordinating Councils
We are working with DHS to create a formal process to communicate with many of the commercial industry sectors in the country. Several meetings and organizational models have been proposed and discussed with DHS. We offered a draft model of the Commercial Sector Coordinating Council that was discussed with the Life Safety Council at the meeting in April.

MMr. Turner Madden serves as the outside General Counsel for IAAM. If you have any questions or comments, you may contact Mr. Madden at Madden & Patton, LLC, 1700 Pennsylvania Ave., NW, Suite 400, Washington, D.C. 20006, telephone (202) 349-2050 or e-mail maddesq@bellatlantic.net.