By Matthew Santoni

Law360 (October 16, 2020, 5:49 PM EDT ) The operator of three Pittsburgh-area amusement parks told a Pennsylvania federal court Friday that its mandatory mask policy does not violate the Americans with Disabilities Act, and argued that exceptions sought by patrons who claimed their disabilities prevented them from wearing masks would unnecessarily expose other patrons and staff to COVID-19.

California-based Festival Fun Parks LLC, which does business as Palace Entertainment and runs the Kennywood Park, Sandcastle Waterpark and Idlewild & Soakzone amusement parks in Allegheny and Westmoreland counties, said its mandatory face-covering policy was a legitimate safety requirement that was allowed under the ADA. It argued that the lawsuit brought by the families of several children with disabilities such as autism should be dismissed.

"Plaintiffs' disability discrimination claims fail because Palace's policy is a legitimate safety requirement, and plaintiffs' request to modify that policy poses a direct threat to the health and safety of Palace's guests and employees and is unreasonable on its face," the company's brief said. "No visitor of an amusement park, even one with a disability covered by the ADA, has the right to risk infecting other patrons with a deadly virus."

In response to the COVID-19 pandemic, the Pennsylvania Department of Health issued an order that authorized businesses to take disease control measures to protect employees and the public from the spread of infection, but also allowed that individuals who can't wear masks due to disabilities "may enter the premises and are not required to provide documentation of such medical condition," the families' suit said.

But Palace countered Friday that the "may" in the state's order was not as strict as "shall," and that gave businesses like the amusement parks leeway to enact stricter mask policies without medical exceptions.

"Plaintiffs' attempt to read into the DOH orders and guidance a mandatory requirement that Palace allow guests with disabilities to access the amusement parks without a mask is contrary to the plain language of those orders," the company's brief said. "Although Pennsylvania has determined it will not sanction businesses if they make an exception for medical reasons, it has never suggested that businesses must make the same exception or that any disability rights law requires an exception."

The contagious nature of the virus made the mask policy a "legitimate safety requirement" under the ADA, and the plaintiffs hadn't argued that the virus wasn't a threat or claimed that masks didn't work, so Palace said it had a "complete defense" to the discrimination claim.

One of the plaintiffs had said she and her daughter both had disabilities that prevented them from wearing masks. They were turned away at the entrance to one of the parks, and claimed they could have safely used the park by practicing social distancing.

But Palace countered that the park could still deny them their requested accommodation because of the "direct threat" posed by the virus and the chance that the unmasked patrons could potentially be asymptomatic or presymptomatic carriers and spreaders of the disease. Nor did its decision to enforce the mask mandate discriminate against them specifically because of their disabilities, Palace said.

"Palace determined that each plaintiff — just like all other guests — must wear a face mask within its parks because not doing so was inconsistent with public health guidance and posed a direct threat to the health and safety of others," the brief said. "This determination was based on safety alone and not due to plaintiffs' alleged disabilities or any other reason."

Palace also denied the families' claims that refusing them entry for lack of masks was retaliatory, since none of them had engaged in "protected activity" to retaliate against.

"Plaintiffs will be filing a detailed response in opposition to the motion to dismiss that sets forth the reasons, factual and legal, why the motion to dismiss has no merit," said Thomas B. Anderson of Thomson Rhodes & Cowie, representing the families.

Counsel for the parks did not immediately respond to requests for comment Friday.

Palace Entertainment is represented by Paul M. Thompson, Kerry Alan Scanlon and Jeremy M. White of McDermott Will & Emery LLP.

The families are represented by Thomas B. Anderson of Thomson Rhodes & Cowie PC.

The case is Wood et al. v. Palace Entertainment et al., case number 2:20-cv-01029, in the U.S. District Court for the Western District of Pennsylvania.

-- Additional reporting by Joyce Hanson. Editing by Abbie Sarfo.

Update: This article has been updated with comment from the challengers' attorney.

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