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ADA and the ADA Standards for Accessible Design: Legal Issues and Liability Reduction
Title III of the Americans with Disabilities Act of 1990 ("ADA" or the "Act") requires that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation." 42 U.S.C. 12182(a). Like other civil rights statutes, the ADA forbids business practices that discriminate against people because of a particular characteristic (in this case, disability). The ADA is atypical, however, in that it also regulates the architectural features of buildings, where those features impose such a barrier to access by disabled people that they constitute "discrimination." To remedy such so-called "architectural barriers," the ADA requires that facilities existing before January 26, 1993 must remove these barriers if removal is "readily achievable," and new facilities constructed after that date (or those portions of existing facilities altered after that date and related areas) must be completed without barriers.
To provide content to the inherently nebulous "architectural barrier" standard, the Department of Justice ("DOJ") promulgated the ADA Standards for Accessible Design in 1991 based on recommendations by an advisory board appointed by the President of the United States ("the 1991 Standards"). In March 2011, revised ADA Standards for Accessible Design (the "2010 Standards") went into effect. Incorporating lessons learned over the generation that has passed since the Act's enactment, the 2010 Standards made a series of far-reaching changes that will dramatically alter the landscape of ADA compliance. The 2010 Standards set forth minimum architectural standards describing how a facility must be constructed to comply with the ADA. Deviations from the applicable standards constitute architectural barriers that render a facility out of compliance with the ADA. If such a barrier exists, businesses must generally take steps to remove the barrier to fulfill the ADA's goal of ensuring access to places of public accommodation by disabled people.
Every business with a physical location that is a public accommodation-which, in effect, means the overwhelming majority of businesses in the United States-will be affected by the 2010 Standards. This paper seeks to guide public accommodations through the 2010 Standards by explaining the background leading up to the 2010 Standards, and the key changes it made to ADA compliance. It will also provide some easy yet effective tips for ensuring compliance, avoiding litigation and reducing the cost of litigation should it arise.
II. Overview of Title III
A. The ADA Applies to Public Accommodations and Is Enforced By the DOJ and Private Litigants.
As explained above, the core provision of Title III mandates that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation."  While the use of the word "public" in the phrase "public accommodation" at first suggests government-run entities, it actually includes a vast array of private businesses. A public accommodation is essentially a private facility whose operations affect commerce and fall within at least one of 12 categories:
- place of lodging (such as an inn, hotel or motel)
- establishment serving food or drink (such as a restaurant or bar);
- place of exhibition or entertainment (such as a movie house or theater);
- place of public gathering (such as an auditorium, lecture hall or convention center);
- sales or rental establishment (such as a bakery, grocery store or clothing store);
- service establishment (such as a dry cleaner, bank, barber shop, travel agency, office of an accountant or lawyer, pharmacy or health care provider);
- station used for specified public transportation;
- place of public display or collection (such as a museum, library or gallery);
- place of recreation (such as a park, zoo or amusement park);
- place of education (such as a nursery school, elementary or secondary school, undergraduate or graduate private school);
- social service center establishment (such as a day care center, senior citizen center or food bank); and
- place of exercise or recreation (such as a gymnasium, health spa, bowling alley or golf course).
Basically, a facility is a public accommodation if it allows members of the public onto its premises for the use of goods or services provided by the public accommodation or by those who use a public accommodation.
As a civil rights statute, the DOJ has the lead role in enforcing the ADA by investigating complaints from aggrieved parties and filing discrimination suits on their behalf. Disabled individuals may also bring their own private claims against businesses for alleged violations, and indeed such private lawsuits have constituted the bulk of ADA litigation since 1990.
The litigation risk has expanded in recent years as a number of groups have abused the statute to harass small business owners and seek monetary gain. For instance, so-called "plaintiffs' mills" law firms specialize in representing plaintiffs in cases where the violation of the ADA is marginal at best; the firms make a profit by intimidating small business owners into settlement with the threat of ruinous litigation. Wiley Rein has been active in combating such lawsuits, representing businesses that have been targeted and filing amicus briefs supporting business owners.
B. The ADA Requires Public Accommodations to Remove Architectural Barriers.
1. The ADA Standards Define What Is an Architectural Barrier.
One form of discrimination that the ADA combats is the presence of architectural barriers that prevent the full and equal enjoyment of public accommodations. In some cases this is more obvious. For instance, a facility containing only stairs without a means for people in wheelchairs to maneuver through the facility (such as via ramps or elevators) precludes them from the full and equal enjoyment of the public accommodation.
But what exactly is as an architectural barrier? The ADA Standards for Accessible Design define when a specific element of a public accommodation poses a barrier to access by the disabled; variance from the Standards means that a barrier exists and that the facility is out of compliance with the ADA.
The 1991 Standards distinguished between existing facilities and new construction/alterations to existing facilities. While new construction and alterations to existing facilities had to adhere to the 1991 Standards, owners of existing buildings had to remove barriers (as defined by the 1991 Standards) only where removal was readily achievable, recognizing that it is much more difficult for a longstanding structure to make modifications than for a new facility or one that is undergoing alterations. The distinction between existing facilities and new construction/alterations to existing facilities has been preserved in the 2010 Standards.
The ADA defines readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense." For example, where a restroom is accessible by climbing one or two steps, the DOJ has stated that ramping the steps would be readily achievable in most cases.
Although the statute does not describe in detail which modifications are readily achievable, DOJ regulations list five factors that must be considered: (1) the cost and nature of the action; (2) the financial status of the site involved, the number of individuals employed at the site, the effect on expenses and resources and legitimate safety requirements for safe operation; (3) the geographic separateness of the site to its parent corporation; (4) if applicable, the overall financial resources and size of the parent corporation, and the number and type of its facilities; and (5) if applicable, the type of operation of the parent corporation. In making this determination, the cost of removing the barrier includes not only the cost of the removal itself, but also any lost revenue that results from the removal.
2. Who Is Affected by the 2010 Standards?
The 2010 Standards continue the new construction/alteration vs. existing facility dichotomy. Facilities constructed one year after the effective date of the regulations (beginning March 15, 2012) will be required to comply strictly with the 2010 Standards during construction. The 2010 Standards will impact existing facilities if either: (1) alterations are made, or (2) barrier removal is readily achievable. The alterations requirement is only triggered when an entity voluntarily undertakes an alteration project, and, even then, generally applies only to the particular elements undergoing alteration.
The 2010 Standards also include a safe harbor for all elements of existing facilities that are in compliance with the specific requirements-both the scoping and technical specifications-of the 1991 Standards. Under this approach, elements in existing facilities that are not altered after the effective date of the 2010 Standards, and that comply with the 1991 Standards, would not be required to be modified to comply with the 2010 Standards even if such barrier removal would be readily achievable.
This safe harbor does not serve as a blanket exemption for facilities, but rather compliance with the 1991 Standards is to be determined on an element-by-element basis. Further, elements that the Access Board addressed for the first time in the 2010 Standards (e.g., swimming pools, play areas, marinas, golf facilities, etc.) would not be subject to the safe harbor.
C. The ADA Requires Provision of Auxiliary Aids and Services
To ensure the full and equal enjoyment of goods and services provided by public accommodations, the ADA also requires public accommodations to provide auxiliary aids and services to disabled individuals who are limited in their capacities to communicate. Title III broadly defines auxiliary aids and services to include qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services. Public accommodations are free to furnish the auxiliary aid or service of their choice provided that the selected aid or services enables "effective communication."
Title III's auxiliary aid and service obligation is not absolute. Rather, the statute places two major limitations on this obligation. A public accommodation is not required to provide an auxiliary aid or service if either a "fundamental alteration" or an "undue burden" would result. Under Title III, a "fundamental alteration" is a modification that is so significant that it alters the inherent characteristics of the goods, services and accommodations offered or provided.
D. The ADA Requires Reasonable Modification of Policies, Practices and Procedures.
The final major obligation under Title III requires places of public accommodation to reasonably modify services to ensure their full and equal enjoyment by disabled individuals. Specifically, Title III provides that "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary" to provide goods or services to disabled individuals, constitutes discrimination, "unless the entity can demonstrate that making such modification would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations."
The DOJ's ADA Update: A Primer for Small Business provides illustrations of a reasonable modification. For example, a day care center that has two scheduled snack times must modify this policy to allow a child with diabetes to bring food for an extra snack if necessary. A clothing store must modify a policy of permitting only one person at a time in a dressing room for a person with a disability who is shopping with a companion and needs the companion's assistance to try on clothes. A clothing store is not required, however, to provide dressing assistance for a customer with a disability if this is a service not provided to other customers because this would result in a fundamental alteration of the nature of the company's services.
The DOJ has been particularly active in this area: in the period between January 2000 and March 2010 the DOJ entered into approximately 110 formal settlement agreements involving the "reasonable modification" requirement under Title III, many requiring public accommodations to allow service animals onto the property or to provide medical care to HIV patients. These settlements provide useful lessons for businesses seeking to comply with the reasonable modification requirement. First, hotels, motels and restaurants should implement and maintain clear standards on service animals and educate their workforces about them, as the DOJ's position has been that neither a "fundamental alteration" nor an "undue burden" defense is likely to justify an accommodation's refusal to modify its policy on service animals. This will ensure consistent enforcement and compliance.
Additionally, these settlements indicate that in order to comply with Title III, medical facilities must provide medical care to HIV patients. The DOJ is zealous in ensuring that medical offices modify policies to require treatment of patients regardless of HIV status. Accordingly, medical facilities should implement and maintain clear policies requiring treatment of patients who are HIV positive.
III. Specific Requirements under the 2010 Standards
The 2010 Standards provide specifics as to how a public accommodation must comply with the broad outlines of the ADA. While much will remain the same under the new regulations, there are a number of revisions that businesses should be aware of. This section will highlight the most important changes.
A. New Provisions Regarding Specific Building Types.
The chart below  summarizes how the 2010 Standards will affect the most common facilities in the United States:
· Medical or long-term care facilities that are required to provide at least one passenger loading zone at an accessible entrance will no longer have to provide a canopy or roof overhang.
· Toilet rooms that are part of critical or intensive care patient sleeping rooms will no longer be required to provide mobility features.
|Restaurants||· There are no proposed new requirements that specifically affect restaurants.|
· A multi-story hotel guest room or residential dwelling unit that is required to be accessible will be allowed to use a platform lift in lieu of an elevator as part of the accessible route. Currently, only elevators are permitted.
· Vanity counter top space that is comparable in terms of size and proximity to the lavatory will be required in mobility-accessible rooms. Currently, accessible counters are only required to comply with height and knee space specifications.
· Sinks in transient lodging facilities that include a cook top or conventional range will have to be positioned for a forward approach.
· At least 2% of dwelling units will be required to provide communication features if certain elements are provided for inaccessible units.
· The revision clarifies that "galley" style kitchens (those with only one entrance and a dead-end on the other side) with a cook-top or conventional range have to meet the greater clearance requirements (60 inches).
· For stages where the circulation path (for the general audience) directly connects the stage to the seating area, the accessible route will also have to be direct. Currently, an accessible route connecting accessible seating locations to performing areas may go outside the assembly area and use an indirect interior accessible route.
· Wheelchair spaces will not be permitted to overlap accessible routes or circulation paths. This is not a change with respect to accessible routes (which are and have been required to have a 36 inch minimum clear width-without obstructions), and though it is new with respect to circulation paths, it only applies to the path width as required by applicable building codes and fire and life safety codes. Because such codes prohibit obstructions in the required width of assembly aisles anyway, this does not really effect a change.
· Lawn seating and exterior overflow seating areas without fixed seats would have to connect to an accessible route. The accessible route does not, however, have to extend through the lawn seating area.
· Handrails on aisle ramps adjacent to seating in assembly areas that are part of an accessible route to accessible seating or other accessible elements, which are required to be on only one side of the ramp (the side that is not adjacent to the seats), will be permitted to be discontinuous and need not have extensions beyond the ramp where the handrails must be discontinuous to allow access to seating and aisle crossing.
· A revised formula will reduce the number of wheelchair spaces required in larger assembly areas with fixed seating.
· In newly constructed facilities, an accessible route will have to be provided to 25% (rather than 100%) of tiered dining areas. Each tier will have to provide the same services and the accessible route will have to serve accessible seating.
· Where the aggregate area of all press boxes does not exceed 500 square feet, small press boxes that are located on bleachers with entrances on only one level and freestanding small press boxes elevated more than 12 feet will be exempted from accessible route requirements (e.g., a lift).
· Currently, assistive listening systems are required in any assembly area that provides an audio amplification system OR has an occupant load of at least 50 people, and the number of required receivers is 4% (minimum 2) of seats no matter how many seats there are. Under the proposed revised standards, only (a) assembly areas with audio amplification systems and (b) courtrooms will be subject to the requirement, and fewer receivers will be required in larger assembly areas (3% of seats between 501-1000, 2% of seats between 1001-2000 and 1% of seats over 2000).
· At least one wheelchair space will be required in team or player seating areas with fixed seats. With respect to team or player seating areas serving bowling lanes, the requirement applies only to those lanes required to be accessible.
· At least one accessible route will be required to directly connect both sides of the court in a sports facility.
|Universities||· Public post secondary schools that had previously opted to comply with the Uniform Federal Accessibility Standards (UFAS) will now be subject to the requirements for transient lodging. With respect to dormitory facilities, the biggest differences are accessible vertical access (i.e., elevators, platform lifts, etc.) between all levels, distribution of rooms with communications features for people who are deaf or hard of hearing, and distribution of rooms with mobility features. The Final Rules require broader access for people with disabilities than UFAS.|
|Amusement Parks|| |
· An accessible route will be required to serve each ride at amusement parks, including the load/unload area.
· Each newly constructed amusement ride (except for mobile/temporary rides and a few additional excepted rides), will be required to provide at least one type of wheelchair access (namely, one wheelchair space, one transfer seat or one transfer device).
· Each amusement ride (except for mobile/temporary rides) will be required to provide specified maneuvering space in the load/unload area.
· Signs identifying the type and location of wheelchair access for each amusement ride will be required at entries to queues and waiting lines.
|Golf Courses|| |
· An accessible route will have to serve all accessible elements within the boundary of the golf course; all golf car rental areas, bag drop areas, teeing grounds, putting greens and weather shelters; and all accessible practice putting greens, practice teeing grounds and teeing stations at driving ranges.
· Golf cars will have to be able to enter and exit each putting green, each weather shelter, and, for each hole, at least one teeing ground (two if more than two teeing grounds are provided), including the forward ground.
· In existing golf courses, the forward teeing ground shall not be required to be one of the teeing grounds on a hole designed and constructed so that a golf car can enter and exit the teeing ground where compliance is not feasible due to terrain.
· Golf cars will have to be able to enter and exit each putting green, each weather shelter, and, for each hole, at least one teeing ground (two if more than two teeing grounds are provided), including the forward ground.
· Golf cars will have to be able to enter and exit at least 5% but no fewer than one of each of practice putting greens, practice teeing grounds and teeing stations at driving ranges.
|Malls||· With respect to areas within sites or between an entrance and site arrival point that can only be accessed by vehicle (such as the roads and parking areas of many suburban "big-box" retail shopping malls), facilities will be exempt from providing a pedestrian accessible route. Now, buildings and facilities on a site must be connected by an accessible route even if there are no sidewalks.|
|Parking Garages|| |
· Facilities with valet-only parking services, which currently must provide an accessible passenger loading zone but are not required to provide accessible parking spaces, will now have to provide accessible parking spaces as well.
· Mechanical access parking garages (garages that use lifts, elevators or other mechanical devices to move vehicles from the street level to a parking tier) will no longer be exempt from providing an accessible passenger loading zone, which would be required at vehicle drop-off and pick-up areas
· All direct pedestrian connections from a parking structure to a facility will be required to be accessible, rather than one as currently required.
B. New Provisions Regarding Specific Elements.
The chart below summarizes the key changes from the 1991 Standards to some of the most common elements, such as parking areas, circulation paths and bathroom and toilet features.
|Parking Areas|| |
· One in six (rather than one in eight) accessible spaces will be required to be van accessible. There is no change in the total number of accessible parking spaces required; however, van accessible parking spaces are 3 feet wider than accessible parking spaces. For each van accessible space, facilities have the option of either providing an 11 foot parking space with a 5 foot aisle, or an 8 foot space with an 8 foot aisle. If the facility has 600 or fewer spaces, only two van accessible spaces are needed, which can be together and share a common access aisle.
· Parking lots containing spaces designated for the exclusive use of buses, delivery vehicles, law enforcement vehicles and the like will have to provide an accessible loading zone.
· Facilities with four or fewer parking spaces and residential facilities with assigned parking spaces will no longer be required to identify accessible parking spaces (including the van accessible space) with signs displaying the International Symbol of Accessibility.
|Accessible Routes|| |
· An accessible route will have to coincide with or be located in the same area as the circulation path used by the general public. Currently, accessible routes must coincide with general circulation paths to the maximum extent feasible. Because, by statute, altered facilities need only comply with accessibility requirements to the maximum extent feasible, this revision effects no change for altered or existing facilities.
· With respect to areas within sites or between an entrance and site arrival point that can only be accessed by vehicle (such as the roads and parking areas of many suburban "big-box" retail shopping malls), facilities will be exempt from providing a pedestrian route. Now, buildings and facilities on a site must be connected by an accessible route even if sidewalks are not provided.
|Circulation Paths||· A circulation path is an exterior or interior way of passage provided for pedestrian travel, including but not limited to: walks, hallways, courtyards, elevators, platform lifts, ramps, stairways and landings. Common use circulation paths within employee work areas will have to comply with the technical requirements for accessible routes, with specific exceptions provided where compliance may be difficult due to the size, arrangement, location or function of the work area. Currently, employee work areas are only required to permit individuals with disabilities to approach, enter and exit.|
· When an automatic door serves as part of an accessible means of egress, it will be required to have sufficient maneuvering clearance unless stand-by power is provided or the door/gate remains open when the power is off.
· Automatic doors that are part of a means of egress that do not have standby power will be required to provide 32 inches minimum break out openings ("swing out" option) when operated in emergency mode (unless there are manual swinging doors serving the same means of egress).
· Exterior sliding doors that are part of an accessible route will have to provide lower (½ inch) thresholds (currently ¾ inch). The revision maintains the current exception for existing thresholds that do not exceed ¾ inch and are beveled on each side, and so will effect no change for altered or existing facilities. Neither is there a change for interior sliding doors, which are currently required to provide ½ inch thresholds.
· Swinging doors and gates except tempered glass doors without stiles will be required to have smooth surfaces on their lowermost 10 inches so that individuals who use wheelchairs and scooters can open these doors/gates without creating a trap or pinch point. Now, there is no requirement with respect to the surface features of doors. Existing doors and gates are specifically exempted.
· All stairs in newly constructed facilities that are part of a means of egress will have to comply with the requirements for accessible stairs, which cover treads, risers and handrails. Currently, stairs serving levels that are connected by an accessible route (e.g., an elevator) are exempt.
· In existing facilities where levels are connected by an accessible route (e.g., an elevator), all stairs that are part of a means of egress will have to provide handrails. Currently, stairs serving levels that are connected by an accessible route (e.g., an elevator) are exempt.
· Handrails on non-ramp walkways will be subject to technical requirements for handrails (including height, gripping surface and clearance requirements). Compliant handrails are required on only one side of the walkway.
· The technical requirements for handrails will be more flexible (permitting the distance between handrail gripping surfaces and other surfaces to be 1.5 inches or more, rather than exactly 1.5 inches; a wider range of approved handrail gripping surface diameters; and no longer requiring a horizontal section at the bottom of stairs.)
· In multi-user men's toilet rooms where the total of toilet compartments and urinals is six or more (as opposed to just the toilet compartments), at least one toilet compartment will have to be ambulatory accessible.
· In single-user toilet rooms, the water closet will have to provide clearance for both a forward and a parallel approach (the current provision permits one or the other), and the lavatory will no longer be permitted to overlap the water closet clearance, except in special dwelling unit cases.
· The in-swinging doors of single user toilet or bathing rooms will be permitted to swing into the clearance around any fixture, as long as clear floor space is provided within the toilet room beyond the door's arc.
· In accessible bathtubs and shower compartments, the revision will require shower spray controls to have a "non-positive" on/off control.
· In a men's toilet with one urinal, an accessible urinal will no longer be required.
· Where multiple single-user toilet rooms are clustered in a single location, 50% (rather than 100%) will be required to be accessible. Accessible single-user toilets will have to be identified by the international symbol of accessibility.
· The revisions allow greater flexibility in the placement of the centerline of water closets (permitting it to be between 16-18 inches from the wall rather than exactly 18 inches), and will also permit a shorter grab bar where there is not enough space due to special circumstances (e.g., because a lavatory is located next to the water closet and the wall behind the lavatory is recessed so that the lavatory does not overlap the clear floor space at the water closet).
· Under the revised provisions, at least 5% of sinks in each accessible space will be required to be accessible.
· The revisions will provide more flexible specifications for transfer-type and roll-in showers.
|Signage||· There are no proposed new requirements that specifically affect signage.|
|Alarms||· New exception will require visible alarms to be added to existing fire alarm systems only when systems are upgraded or replaced, or when a new system is installed.|
|Drinking Fountains||· Drinking fountains will be required to provide a forward approach (rather than either a forward or a parallel approach) unless exclusively used by children.|
C. New Provisions Regarding General Nondiscrimination Requirements.
The revised Title III ADA regulations also provide revised general nondiscrimination requirements related to ticketing, service animals, wheelchairs and other power driven mobility devices, effective communication, reservations made by places of lodging, and timeshares, condominium hotels and other places of lodging.
|Ticketing||· The rule provides guidance on the sale of tickets for accessible seating and requires that a venue operator accommodate an individual with a disability who acquired inaccessible seating on the secondary ticket market only when there is unsold accessible seating for that event.|
|Service Animals|| |
· The rule defines "service animal" as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, and specifically excludes dogs that are used purely for emotional support.
· The rule also permits the use of trained miniature horses as an alternative to dogs, subject to certain limitations.
|Wheelchairs and other power driven mobility devices||· The rule distinguishes between wheelchairs and "other power-driven mobility devices" used for mobility impairments, such as the Segway® PT. Wheelchairs must be permitted in all areas open to pedestrian use while "other power-driven mobility devices" must be permitted to be used unless the covered entity can demonstrate that such use would fundamentally alter its programs, services or activities, create a direct threat or create a safety hazard. The rule also lists factors to consider in making this determination.|
|Effective communication|| |
· The rule permits video remote interpreting (VRI) services as a kind of auxiliary aid that may be used to provide effective communication. VRI is an interpreting service that uses video conference technology over dedicated lines or wireless technology offering a high-speed, wide-bandwidth video connection that delivers high-quality video images.
· The regulations also establish performance standards for VRI and require training for users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI system.
|Reservations made by places of lodging|| |
· The rule establishes requirements for reservations made by places of lodging, including procedures that will allow individuals with disabilities to make reservations for accessible guest rooms in the same manner as other guests, and requirements that will require places of lodging to identify and describe accessible features of a guest room, to hold back the accessible guest rooms for people with disabilities until all other guest rooms of that type have been rented, and to ensure that a reserved accessible guest room is removed from all reservations systems so that it is not inadvertently released to someone other than the person who reserved the accessible room.
· The final rule limits the obligations of third-party reservation operators that do not themselves own and operate places of lodging.
· In addition, to allow the hospitality industry appropriate time to change reservation systems, the final rule gives places of lodging until March 15, 2012 to come into compliance with these requirements.
|Condominium hotels and other places of lodging|| |
· The rule provides that timeshare and condominium properties that operate like hotels are subject to Title III, providing guidance about the factors that must be present for a facility that is not an inn, motel or hotel to qualify as a place of lodging.
· The final rule limits obligations for units that are not owned or substantially controlled by the public accommodation that operates the place of lodging. Such units are not subject to reservation requirements relating to the "holding back" of accessible units. They are also not subject to barrier removal and alterations requirements if the physical features of the guest room interiors are controlled by their individual owners rather than by a third party operator.
IV. Recommendations and Technical Assistance
A. Educational Offerings.
The DOJ provides free ADA materials. Printed materials may be ordered by calling the ADA Information Line (1-800-514-0301 (Voice)). The DOJ also provides an ADA Update: A Primer for Small Business which is a 23-page manual that explains in lay terms what businesses and non-profit agencies must do to ensure access to their goods, services and facilities. Many examples are provided for practical guidance. Other educational resources are available online at www.ada.gov. These guidance documents, however, are often written in an expansive manner, such that building owners, operators and tenants are at times advised to make more extensive modifications than necessary. Businesses are therefore well advised to consult with legal counsel before adopting such recommendations.
B. Requesting a Compliance Audit by Counsel.
The most important thing every company can do to limit Title III liability is to determine how the law applies to your company and whether your company is in compliance. The DOJ encourages entities to establish procedures for an ongoing assessment of their compliance. In addition to avoiding litigation in the first place, self-reviews are favorably viewed during trials. Critically, counsel should be used to bring the audit under the umbrella of attorney-client privilege prior to seeking the audit. The failure to do so could result in the creation of documents that do not serve the best interests of the company.
A competent audit must consider at least four different areas of the law:
- First, as explained more fully above, buildings newly built or remodeled are required to strictly comply with ADA Standards for Accessible Design. The requirements are specific and include virtually every feature of a building and its surrounding areas. These requirements also apply to facilities that have undergone significant renovation or alteration. All businesses must remove physical barriers in existing facilities where it is "readily achievable" to do so. If removal is not possible, goods and services must be made available in ways that are "readily achievable."
- Second, businesses must make reasonable modifications to usual practices and procedures when it is necessary to accommodate disabled customers. Businesses are not required, however, to change their policies and procedures in a way that would cause a "fundamental alteration" to goods or services.
- Third, public facilities must ensure effective communication with customers who have vision, hearing, speech or cognitive disabilities. The type of assistance that is appropriate can vary greatly depending on the type of service provided.
- Lastly, businesses that provide transportation to customers as a convenience to support their primary operations (e.g., car rental shuttle vehicles) must provide equivalent transportation services to individuals with disabilities. The services offered to people with disabilities need to be as convenient as the services offered to other people in terms of schedules or response times, hours of operation, pick up and drop-off locations and other measures of equivalent service.
C. Carefully Structuring Corporate Relationships to Minimize Liability of Franchisors for Franchisee Compliance.
Corporate liability can be reduced by carefully structuring franchisor-franchisee relationships to avoid holding franchisors directly liable for their franchisees' ADA violations. This area of the law is currently in flux, as courts examining the exact same franchise operation in different parts of the country have come to completely different findings on the question of franchisor liability. Compare, e.g., U.S. v. Days Inns of Am., Inc., 22 F.Supp. 2d 612 (E.D. Ky. 1998) (holding that Days Inns was not liable for its franchisee because it was not acting as an owner, operator, lessor or lessee when it designed and constructed the hotels), with U.S. v. Days Inns of Am., Inc., 151 F.3d 822 (8th Cir. 1998) (holding that Days Inns was liable for its franchisee because it had a significant amount of control over the final design and construction of the hotels). While some courts have concluded that liability should only be found where the franchisor meets the traditional standards for a responsible party under the Act, other courts have focused more heavily on the degree of control the franchisor has over the facility. See, e.g., Harty v. Denny's, Inc., 2010 U.S. Dist. LEXIS 126949, at *5-6 (D.N.C. Nov. 18, 2010) (describing an existing circuit split wherein some courts have held that Title III liability extends to franchisors possessing "a significant degree of control over the final design and construction of the facility" but other courts have limited Title III liability to "owners, lessees, lessors, and operators" of a public accommodation). Franchise documents must therefore be drafted in a way that clearly emphasizes that review and approval of facilities and operations by franchisors are solely for the purpose of determining compliance with corporate system standards, and not for determining whether the facilities satisfy the legal requirements of the ADA.
D. Eliminating Plaintiff's Standing During Litigation by Taking Remedial Action.
Challenging a plaintiff's standing to file suit can often be an effective means for getting a claim dismissed. In federal court, a plaintiff must establish standing by showing: (1) an injury in fact; (2) that is fairly traceable to the defendant's conduct; and (3) that the injury is likely to be redressed by the requested relief. The first and third prongs of this test often present a problem for plaintiffs. Under Title III, plaintiffs can only request prospective relief. The ADA authorizes the court to issue an injunction to correct ongoing violations, but it does not authorize damages for past violations. A plaintiff must therefore demonstrate that an award of prospective relief will redress a past violation. To the extent that remedial action reduces the possibility of a violation in the future, a defendant may be able to defeat standing by demonstrating that there is not a substantial likelihood that a violation will occur in the future. The modification need not include the specific change sought by the plaintiff, but must instead show that the changes are such that there is not a substantial likelihood plaintiffs will encounter the same violation.
The 2010 Standards promise to open a new chapter in ongoing efforts to comply with the ADA. While the revised ADA regulations give businesses one year (until March 15, 2012) before they must comply with the 2010 Standards, businesses can take steps to minimize disruption to their operations by being proactive now in learning about and taking steps to comply with the regulations.
 Under Title III of the ADA, an "individual with a disability" is a person who has a physical or mental impairment that substantially limits one or more major life activity (e.g., seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself or working).
 The charts in this Section III are adapted from Appendix 8 of the DOJ's Final Regulatory Impact Analysis.