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, #5: What The ADA Requires...or Doesn't

There are a few things that are routinely mentioned as being required by the ADA that are actually not required. 

• Automatic/Electric doors.  While it is true that the force necessary to open a door has a set limit under the ADA's Standards, electric or automatic doors are not required.  They make good business sense for parents with strollers, delivery people, shoppers with their arms full of shopping bags, and people using walkers or crutches, in addition to people in wheelchairs.

• Elevators.  It is a common assumption that elevators are required in any building with more than one floor.  The ADA includes an elevator exemption that does not require the owner to install an elevator in a facility that is being altered if it is less than three (3) stories, or less than 3,000 square feet per story. Buildings not covered by this exemption are a shopping center or mall, the professional office of a health care provider, a terminal, depot or other station used for specified public transportation, or an airport passenger terminal.

• Braille is required on menus.  Braille is not required on menus if a waiter or waitress is made available to read the menu to a blind customer.

• Sign language interpreters are always required.  If an effective means of communication with a person who is deaf includes writing on a notepad, then that would suffice.  Sign language interpreters are not always required, particularly if the cost to arrange such a service creates an undue hardship or burden.

Although features such as automatic doors are not required, and elevators are not required in certain circumstances, their existence often makes good business sense because of the benefit it provides to people with disabilities as well as other groups such as parents and families, and the aging population. 

Misconception Series, #4: Service animals

There have been so many misconceptions mentioned--and stated with certain conviction--lately that I intentionally left the title of this post as just "service animals."  What this post addresses is service animals as defined under the ADA.  This post does not pertain to therapy animals, or service animals as defined under other law such as the Fair Housing Act.  The ADA Amendments in 2008, and Standards in 2010, have redefined some regulations, most notably that the only species permitted as service animals are dogs, and miniature horses.

Here is a list of commonly stated misconceptions regarding service animals:

• "Service animals must wear ID, such as a vest or tag, that identifies them as service animals."  Service animals do not have to wear anything that identifies them as a service animal.  A town in Florida has a sign posted on a pier stating "Service animals must wear ID."  This is untrue and in violation of the ADA.
• "Service dogs can be prohibited if people have allergies to dogs, or are afraid of dogs."  A service dog (or animal) cannot be prohibited from entering a covered entity (business, restaurant, emergency shelter, etc.) due to another person's allergies or phobias.  The person with a disability and the service animal can be kept together in an area separate from another person who has allergies or a phobia of dogs, but not in a manner that discriminates against the disabled person.
• "Service animals must be trained by a specific organization (e.g., Canine Companions for Independence), or be certified, or registered."  None of the factors listed are required.  Proof cannot be required of training, certification or registration as a service animal either.  Some circumstances can give rise to requesting proof of the animal's training for specific tasks related to the disability, but these cirumstances are rare and arise when a service animal gives clear doubt that is has been trained to perform specific tasks.
• "State laws such as breed specific legislation prohibit me from having a service animal that is a pit bull."  The ADA is federal law, which supercedes state law.  A service animal that is a pit bull is not bound by a state or local law that prohibits pit bulls.  Similarly, state or local health codes prohibiting animals in food areas or certain situations will generally be superceded by the ADA.   
• "A pet charge, deposit or surcharge can be imposed on someone with a service animal in my business."  A person with a service animal cannot be charged a pet, animal or extra fee because of the animal.  If the service animal causes damage, then the owner of the service animal can be charged for the damage.
• "A business has to clean up after a service animal."  A business or other covered entity is not responsible for cleaning up after, or "dog sitting" for, a service animal.
• "I can never ask that a service animal be removed under these new guidelines."  Businesses have a legitimate complaint that they will have very little discretion about prohibiting service animals, and they suspect that people bring in their pets and say they're service dogs.  However, if a dog is not acting as a service dog and is disruptive, the dog can be prohibited.  In one instance, a man in a wheelchair and clearly disabled was at a public beach with a dog that he claimed was a service dog, in a "No Pets" area.  The dog was acting unruly, running around to everyone and never near its owner.  Police asked that the dog be removed, the owner yelled that it was a service dog, and a court later ruled that the dog was clearly not working, if it was even trained, and there was no ADA violation by the police department.

The above list represents only a few of the misconceptions that abound.  For more information, read about service animals and the ADA here.

Misconception Series, #1: My old building does not need to comply

A repeated myth regarding the ADA is that there is a "grandfather clause" regarding barrier removal.  Many people believe that, if their building was built prior to the ADA, the building is exempt from having to comply with barrier removal.  Old buildings must comply with the ADA, with caveats.

First, a building constructed prior to when the ADA went into effect (1992), and that has not been renovated, needs to comply, but only if barrier removal is readily achievable.  "Readily achievable" means to be carried out without much difficulty or expense.  Examples of readily achievable changes include installing a ramp, making curb cuts, repositioning shelves, tables and chairs and merchandise racks, using offset hinges to widen doorways, etc.  To determine if changes would be readily achievable, consider these factors listed in 42 U.S.C. § 12181(9):  1) the nature and cost of the action, 2) the resources of the business or entity, 3) the resources of a parent entity, if one exists, and 4) the type of operation(s) of the business or entity.  A small mom-and-pop shop might find many fixes cost prohibitive, but if a parent corporation exists, then this larger pool of resources will make most changes feasible.

Second, additional exceptions apply if the structure is listed on the National Register of Historic Places.  Changes need not be made if these changes will destroy the architectural integrity of the structure.  For example, widening a doorway might not be possible if the doorway contains architectral elements that are integral to the history and significance of the structure.

It is a rare circumstance that a business or entity is unable to remove barriers that are readily achievable, although these situations do exist.  Typically, allowing access in and out of a business in an older structure will show good-faith compliance and ward off ADA complaints.

Series: Top 10 Misconceptions About Title II and III of the ADA

I have been involved in so many discussions in the past two weeks that have proven the existence of serious misconceptions about the ADA.  A series of 10 posts will name and clarify these repeated misunderstandings of the law. 

These misconceptions and blatant erroneous statements of the ADA have not come from lay people with the need of only a passing knowledge of ADA basics.  To the contrary, these misunderstandings have come from attorneys, school personnel, some access professionals, and websites purporting to explain the law, among others.

The next post will address misconception #1: Older facilities built before the ADA are exempt from complying with the ADA.

Emergency/Homeless Shelters and Service Animals

I recently read a query from an attorney helping a homeless shelter devise its rules.  The attorney said the shelter had past problems finding doctors to "certify" a potential resident's disability to allow him or her to bring that person's service dog into the shelter, and the attorney was preparing rules for the shelter that complied with the ADA.

There are two problems that I see.  First, the ADA provides that service animals are permitted in all areas where the public is permitted to go, including homeless and emergency shelters.  Furthermore, requiring certification of the person's disability or the animal as a service animal is not permitted.  Under the regulations, only two questions regarding the service animal are permitted: 1) whether the animal is required because of a disability, and 2) what work or task the dog has been trained to perform.  These rules apply to places of public accommodation (Title III), as well as state and local government facilities (Title II).

Second, service animals include dogs and miniature horses.  There are very few exceptions to prohibiting a service miniature horse, and even fewer that prohibit a service dog from access to wherever the person with a disability is permitted.

Shelters have been provided guidance through this publication.

 

Arizona bill would include miniature horses as service animals

(Photo courtesy of guidehorse.org)

Since the 2008 ADA Amendments, and 2010 Standards, miniature horses are included with dogs as the allowable species for service animals.  Illinois updated their state law to include miniature horses, and Arizona is following suit with House Bill 2401.  I blogged on miniature horses as service animals here. 

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.

Pit Bulls and the ADA

American Pit Bull Terriers have a reputation as a dangerous dog.  This breed is often associated with dog fighting, and is the breed often targeted in Breed Specific Legislation (BSL), legislation that often follows incidences of pit bulls attacking and killing a child, or children.  BSL restricts or prohibits ownership of a pit bull, or bringing a pit bull into the community.  People who are educated on this breed believe that pit bulls are the unfortunate victims of their reckless and irresponsible owners, who mistreat them or train them to act aggressively.   

Regardless of your view of pit bulls, BSL and its restrictions and bans will face a tough challenger:  federal law in the form of the Americans with Disabilities Act (ADA).  Pit bulls are being used as service animals by people with disabilities, and service animals, regardless of breed, are protected under the ADA.

Pit bulls are strong and hardy, particularly useful when pulling a wheelchair.   Pit bulls have a reputation of being very reliable in detecting seizures in people with epilepsy.  Because pit bulls used as service animals are protected under the ADA, banning their ownership or prohibiting them from entering city limits would, absent other facts, be in violation of the ADA.  The Department of Justice, which is the enforcing and rulemaking agency of Titles II and III of the ADA, stated in its latest rules that “if an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the title II entity cannot exclude the individual or the animal from a State or local government program, service, or facility.”

Two recent cases highlight the result when state or local bans on pit bulls run into the ADA.  It can be expected that more challenges are ahead, unless BSL makes an exception for service animals, or is repealed. 

Ruth Colker Blog

Ruth Colker is one of the most respected experts in disability law.  As Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law at The Ohio State University, Professor Colker has a distinguished career in civil rights law, notably the Americans with Disabilities Act (ADA).  Her blog will certainly be followed by those with an interest in the ADA.