The ADA: Titles II and III

Misconception Series, #10: "Title ___ Doesn't Apply To Us"

Welcome to the final installment in the "Misconception Series" of posts about misconceptions surrounding the ADA.  This post corresponds with a recent event--not too coincidental because this misconception occurs fairly frequently.

Regarding the ADA Titles II and III, it is believed by many that the titles are mutually exclusive, i.e., if Title II applies to us then Title III does not.  Title II covers state and local programs and services; Title III covers public accommodations and commercial facilities.  Specifically, under Title II a local government would be required to make a program accessible so, if a city held a city event in an inaccessible building, instead of making the building accessible it could just move the program to an accessible building.   There is no need to engage in "readily achievable barrier removal" on an ongoing basis.  (Note that state and local governments are obligated under several different statutes that require accessibility, including state law.)  Under Title III, public accommodations (businesses) must make the facility accessible, engage in readily achievable barrier removal in certain structures.

A city holds a large city-sponsored event at a park that has an inaccessible shelter house, where many activities occur.  This same resident then attends a birthday party at the shelter house that was rented by a city resident, and had to leave because the shelter house could not be accessed.  The disabled resident complained, and the city's law director stated that they will not provide a ramp into the shelter house (a readily-achievable barrier removal) but, instead, will move the city event.  What about the private birthday parties, other private events where the city rents the shelter to the public?

The law director mistakenly assumes that only Title II--move the city program to an accessible location--applies to the city.  Because the city rents the shelter house to the public, Title III now applies and the city must engage in readily achievable barrier removal in the structure built in the 1950s.  It is not sufficient to just move the city's programs.  For this local government, both Title II and III apply.

Misconception Series, #8: I can't be sued (under ADA) for money damages

A recent article posted on a legal self-help website stated that business owners should try to review their business for accessibility to capture the "disabled customer marketplace."  Whether or not this review was done, the article goes on to state that a business cannot be sued for money damages anyway, so accessibility is good for attracting disabled customers but there is no need to fear being penalized monetarily if a business does not comply with the ADA. 

This is an example of bad advice by "omission."  It is true that the Americans with Disabilities Act allows plaintiffs who sue privately to obtain an injunction, not money damages.  However, as several plaintiff's attorneys know, a plaintiff can recover attorney fees, and in some circumstances these fees have reached 5 and 6 figures.  The small business audience reading the article mentioned above would be paying--it would be paying money to attorneys for their legal fees. 

Additionally, if the Department of Justice decided to sue based on a person with a disability's complaint, then compensatory damages to the plaintiff could be recovered.

Finally, a disabled plaintiff who sues a business for being inaccessible can recover monetary damages in some states under state disability laws.  In California, damages in the amount of $2,000 could result for each violation.

Misconception Series, #7: We have no customers in wheelchairs

I have heard, more than once, "Why do I need to change anything--we have no customers in wheelchairs."  There are two issues present with this misconception. 

First, and obviously, there might be no customers in wheelchairs because the business (or organization) is not accessible to wheelchairs.  Second, there are other disabilities to consider when beginning the process of evaluating the accessibility of a business and bringing a business into compliance with the Americans with Disabilities Act (ADA).

A small hotel decided to make a room "disabled friendly."  Presumably this meant to bring one room into compliance with the ADA.  The owner thought she did a great job: she ramped the large step in front of the room door, put lever handles on the outside door and bathroom door, put the bathroom door on offset hinges to allow a wheelchair to enter, replaced the existing lamp with a touch lamp, put grab bars in the bathroom, and changed the bathroom sink faucet from knobs to lever function.  Great, for people in wheelchairs, except that the ADA isn't limited to people in wheelchairs. 

Are there audible fire alarms for a guest with a vision impairment?  Braille signage?  Visual alerting devices to warn guests with hearing impairments of smoke or fire, or let the guest know the phone is ringing?  Is there closed-captioning on the tv for a guest with a hearing impairment?

The ADA can be overwhelming for a small business owner who wants to comply but does not know what to do beyond removing the steps at the front door.  Technical assistance for businesses can be found at www.ada.gov. 

 

What is "Readily Achievable"?

In light of the new ADA requirement that fixed lifts be installed at every pool, and the resulting uproar, a review of what constitutes "readily achievable" has taken on new importance.  For small businesses, this new requirement might result in a conclusion that the best course of action is to close their pool.  Supporters of the new regulation say that a pool owner can argue that installing a fixed pool lift is not readily achievable, but that reality rarely materializes.  Why?  One of the best explanations of "why" was found in attorney Richard Hunt's blog post, "The Elephant in the Room."  Thanks to Richard for permitting me to link his post.

ADA Weekly Tip for: Businesses

The succinct version of this week’s tip: compliance with the Americans with Disabilities Act (ADA) is not delegable.  You are responsible for compliance whether you lease your store or office, whether you are a landlord or tenant.  You are responsible whether you employ an architect or design firm to remodel or make renovations, even if the architect or design firm states it will ensure ADA compliance. 

In two cases, hotels were held liable for ADA violations despite relying upon architects and design firms that included “ADA compliance” as part of their contract with the construction and, or, renovations.  See Professor and Attorney William Goren’s blog for a great post of the nondelegable duty to comply with the ADA, and how this was a very costly lesson for one hotel. Also, see the ADA.gov's brief regarding a hotel that tried to delegate its duty to comply with the ADA.

Compliance with the ADA is not a duty that you can delegate to someone else.  Know your responsibilities in your role (lessor, lessee; landlord, tenant; architect, client, etc.) and have a plan for compliance.

ADA's Pool Lift Regulations: New Challenge by Congress with HR 203

The ADA’s 2010 Standards for Accessible Design drew the ire of the hotel and resort industry by requiring fixed pool lifts.  Pool lifts (fixed or portable) allow people with mobility impairments to enter a swimming pool.  The new regulations require fixed (not portable) lifts to be at every pool.  These regulations go into effect this month (January 2013). 

The problems, according to the hotel and resort industries, involve liability and cost.  Some resorts have several pools at the same resort.  Many pools are unattended by a lifeguard.  Presently, resorts might have a couple of portable lifts that they bring out for use when needed, under trained employee supervision, and when the lift is no longer needed, it is returned to a secure location.   Under the revised rules, a fixed lift would be required at each pool. 

Fixed lifts, opponents argue, are a liability hazard because of the foreseeable injuries resulting from children and adolescents playing on them, jumping off of them into the pool, and other scenarios that anyone with a child can imagine.  People using the lifts at unattended areas could get trapped in the lift in the water.    

Fixed lifts cost thousands of dollars.  According to the American Hotel and Lodging Association, a fixed lift and installation could cost more than $9,000.  Installing a fixed lift requires a contractor because it must be affixed to the pool deck.  Electrical work might also be required.  There would be on-going costs involving maintaining the lift, ensuring it’s usable, training employees on its use, and repairing the lift, among other costs.

To address these concerns, HR 203 has been introduced into the 113^th Congress.  HR 203 attempts to revise the new 2010 regulations by eliminating the requirement for fixed pool lifts:  (b) Revision of Rules- Not later than 60 days after the date of enactment of this Act, the Attorney General shall revise section 36.304 of title 28, Code of Federal Regulations, and any other appropriate rules in part 36 of such title to provide that--

(1) a public accommodation or commercial facility that has a pool and uses a portable pool lift on request shall be in compliance with the requirement under such rules to provide an accessible means of entry to such pool, even if installation of a permanent lift is readily achievable; and

(2) a public accommodation or commercial facility that has more than 1 pool and uses 1 portable pool lift on request for all such pools shall be in compliance with the requirement under such rules to provide an accessible means of entry to each such pool.

This blog attempts to view the ADA through “reasonable” lens.  Pool lifts allow for full and equal enjoyment of pools by the disabled.  Safety and cost, in this instance, present true limits, and because of these limits, it seems reasonable to allow pool lifts to be portable.  Portable lifts should be available for use at any time that the pool is open and their use should be on-demand, and not by providing notice.  Regarding (b)(2) above, the number of pool lifts available should be dependent upon the number of pools served by the lifts, instead of one lift for all pools. 

Cost analysis aside, fixed lifts at unattended pools would be a safety hazard to the children and teenagers who would undoubtedly crawl on them, attempt to use them, and jump off of them, and a serious liability concern for the owners of these fixed lifts.  Providing full and equal enjoyment, while minimizing safety hazards, can be accomplished with portable lifts.

ADA Weekly Tip For: Public Accommodations

When the Americans with Disabilities Act (ADA) Standards for Accessible Design were originally published in 1991, people with mobility impairments used wheelchairs as mobility devices, period.  There was variety among types of wheelchairs, such as manual, power-driven, standing, outdoor, beach, pediatric…but most variations fell into the “wheelchair” category.  Times have changed.

People with mobility disabilities are using devices to get around that are not designed primarily for use by an individual with a mobility disability.  These “other power-driven mobility devices” include Segways, golf carts, and all-terrain vehicles (ATVs).  Specifically, use of the Segway by people with disabilities at resorts, shopping malls and other areas requiring a lot of walking has increased, as has litigation regarding its use.  See Ault v. Walt Disney World Co., No. 6:07–cv–1785–Orl–31KRS, 2009 WL 3242028 (M.D. Fla. Oct. 6, 2009)(Segways prohibited for use in Walt Disney World); See McElroy v. Simon Property Group, No. 08– 404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (mall could not prohibit Segway use if owner refused to sign release that provided mall with indemnification for user’s acts). 

People with disabilities who use Segways claim it benefits their health by allowing them to stand, and there is no stigma they associate with using a wheelchair.  Businesses who opposed use of "other power-driven mobility devices," particularly the Segway, claimed during the Department of Justice's comment period regarding the new regulations that Segways are dangerous because of their speed (about 12mph, versus 6-8mph of a standard electric wheelchair), weight and size, and most users are unfamiliar with controlling the device.

Wheelchairs have a stricter standard under the ADA—prohibiting wheelchairs is allowed only in the rarest of circumstances, such as situations where the presence of a wheelchair would be dangerous to the individual or others.   Contrast that to “other power-driven mobility devices,” which must be reasonably accommodated under the ADA unless the public accommodation can show they pose safety concerns.  ADA regulation 28 CFR § 36.301(b) addresses the definition of safety: “A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 

To provide guidance for public accommodations on whether it is safe to reasonably accommodate a Segway, or other power-driven mobility device, for a person with a disability, the regulations list the following considerations in 28 CFR § 36.311(b)(2):

• The type, size, weight, dimensions, and speed of the device;
• The facility´s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);
• The facility´s design and operational characteristics (e.g., whether its business is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);
• Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and
• Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

If a place of public accommodation is concerned with a guest or customer using a Segway, the public accommodation can ask for credible assurance that the person is using the Segway (or other device) as a mobility device due to a disability.  “Credible assurance” includes presentation of a valid, State-issued disability placard, card, or other state-issued proof of disability, or verbal representation, not contradicted by observable fact, that the device is being used for a mobility disability.  An example of the latter is the stereotypical group of teenagers or young adults, purposefully and recklessly operating a Segway at high speeds, erratically, for fun.  In this instance, the use of a Segway could be prohibited as a safety concern, and because it is clear that it is not being used as a mobility device due to disability.

It can be expected that as the population ages and people find it difficult to navigate larger areas, the use of Segways and other devices will increase, particularly at hotels and resorts, shopping malls, and large venues such as stadiums and concert halls.  Unless specific safety concerns exist, accommodating these types of mobility devices is good practice.

Dinner with a Horse?

The Americans with Disabilities Act (ADA) allows service animals to accompany people with disabilities in most places, unless doing so would jeopardize the entity’s safe operation (e.g., operating room in a hospital).  The service animal must be trained to work, not just provide comfort or emotional support.  News reports of a person with a disability being denied access to a public place, particularly restaurants, are common.  It can be assumed that most people know about service animals, and have seen service dogs. 

After much testing of the boundaries, including people claiming pigs and snakes as service animals, new ADA regulations limit the species of a service animal to dogs…and miniature horses.  The new regulations state that a public entity or private business shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse as a service animal by an individual with a disability.  The miniature horse has to be individually trained to do work or perform tasks for the benefit of the individual with a disability, and reasonable modifications are subject to an assessment of the type, size, and weight of the miniature horse and whether the facility can accommodate these features. The same provisions that apply to service dogs also apply to miniature horses.  The only difference I see differentiating a service dog from a service miniature horse, regarding the law, is that the horse is allowed where service dogs are allowed if doing so is reasonable “subject to an assessment of the type, size, and weight of the miniature horse and whether the facility can accommodate these features.”  28 C.F.R. 36.302(c)(9).

Some ADA experts have assured people that miniature horses won’t be in restaurants, malls and hotels anytime soon under the law, because the law specifies “dogs” only as service animals.  They concede that miniature horses are permitted but under a stricter legal standard that is more restrictive.  It is true in the first part of the ADA’s service animal regulation that the law states "dogs", but later in the text lists miniature horses as service animals if “reasonable” for a public entity or private business to admit the horse, subject to its size, type and weight.  Dogs can not be excluded because of size-type-weight, and since most miniature horses are the size of large dogs, it seems unlikely that a business or entity could make a successful argument excluding a horse because of unreasonableness due to the horse’s size, or type, or weight. 

Will you be dining at the Cheesecake Factory next to a miniature horse?  Possibly.  At first blush this sounds ridiculous.  However, I admit to being ignorant of miniature horses, and my research has led me to conclude surprisingly that miniature horses as service animals might not be so ridiculous.

For fellow diners, horses do not get fleas, they shed only twice a year, and they can be housebroken the same as a dog, so dining next to one might be cleaner than dining next to a dog.  For the person with a disability, miniature horses as service animals are attractive because they can live 30-40 years compared to a dog, which is of use as a service animal for generally 7-10 years.  People of Muslim faith prefer miniature horses because of a belief that dogs are unclean.  Some people are afraid of dogs, making a miniature horse service animal less anxiety-provoking.  People with allergies are generally not allergic to horses.  There are other benefits also, according to the Guide Horse Foundation:

• Memory:  horses have great memory and will remember—and avoid—previous dangerous places and situations;
• Vision: horses have a wide range of vision because their eyes are on the sides of their head; each eye is capable of tracking something independent of the other eye; and horses can see in almost complete darkness;
• Focused demeanor: trained horses are not easily distracted.  They are not very desirous of being petted and getting human attention as much as dogs, they focus intently on working; and
• Safety: horses are naturally safety-conscious and instinctually guide humans away from danger and towards safety.

There are drawbacks to using a miniature horse as a service animal.  I have seen miniature horses that are much bigger than even a very big dog, so an establishment might be more successful making an argument that permitting the horse in its facility or business would be unreasonable.  Miniature horses also require more room and food than a dog.  Some homeowners associations or local ordinances might prohibit horse ownership and provide resistance to allowing someone to house a miniature horse.  And, until their use becomes more widespread, there will be more resistance in letting them into an establishment until awareness of the law widens.

The ADA specifically lists dogs as service animals, and also miniature horses, albeit with a few caveats.  The restrictions the law places on miniature horses are based on vague “reasonableness,” and to the business owner unsure of how to treat a customer with a miniature horse, it is good practice to allow miniature horses as service animals in the same fashion as dogs.