BUSINESSES MUST COMPLY WITH AMERICANS WITH DISABILITIES ACT
by William R. Simon, Jr.
Partner, San Diego Law Firm
In enacting Title III of the American with Disabilities Act (ADA), Congress sought to facilitate the removal of barriers created both intentionally and unintentionally that make it impossible for persons with disabilities to move freely within society. To achieve this goal, Title III sets forth wide-ranging requirements including:
- Requiring all newly constructed and altered places of public accommodation and commercial facilities to be designed and constructed so that they are readily accessible to and usable by persons with disabilities,
- Prohibiting discrimination on the basis of disability in places of public accommodation, and
- Mandating that all examinations and courses offered for licensing and certification for professional and trade purposes be accessible to persons with disabilities.
Consequences to Businesses Who Fail to Comply with Title III
Failing to comply with the requirements of Title III may subject a business to a lawsuit including the attorney fees and costs attendant thereto, a court order/judgment mandating that the business take corrective action in order to bring its premises into compliance with Title III and a court order/judgment requiring that the business pay for the attorney fees and costs, including the expert witness fees, incurred by the person bringing the lawsuit against the business.
Public Accommodations
A ''public accommodation'' is broadly defined by the Department of Justice regulations as a ''private entity'' that:
- owns,
- leases,
- leases to, or
- operates a ''place of public accommodation.''
A ''place of public accommodation'' means a ''facility,'' operated by a ''private entity,'' whose operations affect ''commerce'' and fall within one of the following twelve categories:
- An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;
- A restaurant, bar, or other establishment serving food or drink;
- A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
- An auditorium, convention center, lecture hall or other place of public gathering;
- A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
- A laundromat, drycleaners, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
- A terminal, depot, or other station used for specified public transportation; A museum, library, gallery, or other place of public display or collection;
- A park, zoo, amusement park, or other place of recreation;
- A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
- A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
- A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
The above twelve categories are exclusive. If an entity does not fit into one of the categories, the entity is not a place of public accommodation. However, the examples listed in each of the twelve categories are not exhaustive, but are merely illustrative. The Congressional reports indicate that the use of the ''other place'' or ''other establishment'' terminology in each category in the definition of public accommodations ''should be construed liberally consistent with the intent of the legislation that people with disabilities should have equal access to the array of establishments that are available to others who do not currently have disabilities.''
For example, the types of facilities covered by the category ''place of exercise or recreation'' would include, in addition to the list set forth in the statute, such entities as driving ranges, tennis and basketball courts, dance halls, playgrounds, aerobic facilities, video arcades, swimming pools, beaches, camping areas, fishing and boating facilities, and amusement parks. A substance abuse treatment facility, a rape crisis center, or a half way house would come under the category ''social service center establishment'' and would be classified as places of ''public accommodation'' even though those facilities are not listed as examples of places of public accommodation. Similarly, book and video stores, pet stores, car rental agencies, and jewelry stores would be a ''sales or rental establishment'' even though they are not specifically enumerated in the statute.
Commercial Facilities
With limited exceptions, the ADA defines ''commercial facilities'' as facilities:
- Whose operations will affect commerce; and
- That are intended for non-residential use by a private entity.
The term ''commercial facilities'' is intended to be construed broadly to cover such places as factories, warehouses, office buildings and other buildings where employment may occur. The category of commercial facilities ''sweeps under ADA coverage a large number of potential places of employment that are not covered as places of public accommodation.''
The ADA also covers commercial facilities that are located in private residences. In this circumstance, the portion of the facility used exclusively as a residence would not be covered by the ADA, whereas that portion of the home used exclusively in the operation of the commercial facility or used both for commercial and residential purposes would be covered.
Allocation of Responsibility Between Landlord and Tenant
The Department of Justice Title III regulations permit landlords and tenants to allocate responsibility for complying with Title III's requirements and liability for violation thereof between themselves. Thus, it is important that both the landlord and tenant consider Title III responsibility before entering into a written lease.
Any allocation by the landlord and tenant contained in a lease or other contract is effective as between the parties only. The Department of Justice has emphasized that, regardless of the terms of the lease, both the landlord and tenant each remain fully liable for compliance with all provisions of the ADA relating to the place of public accommodation. Accordingly, a victim of unlawful discrimination can pursue his or her rights against both entities.
Conclusion
If your business is contemplating new construction or alterations, seek the assistance of an ADA consultant to ensure compliance. In the event of a claim or lawsuit, seek legal counsel immediately to minimize the expense your business will incur.
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