ADA TITLE III UPDATE

David Gevertz, Esq.

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

Atlanta, Georgia

Email: dgevertz@bakerdonelson.com

Phone: (404) 221-6512

©2012 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All rights reserved.

Public Accommodations

• The Americans with Disabilities Act (“ADA”), signed into law on July 26, 1990, is a comprehensive civil rights law that seeks to prevent discrimination based on disability.

• Title III of the ADA requires “public accommodations” to accommodate disabled patrons, customers and members of the public to ensure that disabled individuals can equally access and enjoy the goods and services offered by the public accommodation as non-disabled individuals.

• Places of public accommodation include virtually all facilities that are open to the public, such as hotels, restaurants, bars, theaters, stadiums, arenas, museums, libraries, parks and other entertainment venues.

New Regulations

• Coinciding with the 20th anniversary of the ADA, Attorney General Eric Holder signed final regulations substantially revising the Department of Justice’s Title III regulations.

• The new regulations are intended to provide consistency with the Department’s current policies and published guidance, to reflect the Department’s experience since the ADA Standards for Accessible Design were first published in 1991, and to address and respond to public comments and concerns pertaining to the existing regulations.

• The changes adopted by these new regulations add a comprehensive set of new accessibility requirements which generally mandate a higher level of access for individuals than the standards contained in the 1991 regulations.

Compliance Deadlines

• As of March 15, 2012, compliance with the 2010 ADA Title III Standards was required for all new construction and alterations, and for guidance regarding “readily achievable” barrier removal, at all places of public accommodation.

• In a brief reprieve, however, the Department of Justice has deferred the deadline for compliance with its controversial new standards regarding access to swimming pools to January 31, 2013.

Key Aspects of the

New ADA Title III

Regulations.

1. Effective Date and Safe Harbor Provision

• The new regulations became effective March 15, 2011. As of March 15, 2012, both new construction and alterations were required to be in compliance with the new standards.

• However, the regulations provide a safe harbor for elements in existing facilities that comply with the 1991 regulations as of March 15, 2012. These elements do not have to be changed until they are altered.

• Otherwise, all new construction, alterations, and barrier removal taking place after March 15, 2012 has to comply with the new regulations. Public accommodations that have existing elements that are covered for the first time under the new regulations will have to comply with the new standards for those elements to the extent that it is readily achievable.

2. Accessible Seating

• Covered entities must comply with the following requirements:

• 500 to 5,000 seats: Six wheelchair spaces and companion seats plus one additional wheelchair space for each additional 150 seats (or fraction thereof) between 501 through 5,000

• More than 5,000 seats: At least 36 wheelchair spaces and companion seats plus one additional wheelchair space for each 200 seats (or fraction thereof) over 5,000

• Premium Seating Standards: Each luxury box, club box and suite in an arena, stadium or grandstand is required to be wheelchair accessible and to contain wheelchairand companion seating

• Sightlines: Significant new technical requirements for providing lines of sight over seated and standing spectators

3. Ticket Sales

• Tickets for disabled seating must be available for purchase during the same hours, stages, through the same methods of distribution, in the same types and numbers of ticketing sales outlets, and under the same terms and conditions as other tickets sold for the same event or series of events.

4. Other Ticketing Changes

• Ability to purchase multiple tickets: With certain limited exceptions, for each ticket for a wheelchair space purchased by a disabled individual or other person at his or her request, three additional tickets for the seats in the same row and contiguous with the wheelchair space shall be made available for purchase (provided they are available at time of purchase).

• Ticket transfers: Tickets for accessible seating may be transferred to third parties by the ticket holder under the same terms and conditions and to the same extent as other spectators holding the same type of ticket.

• Tickets purchased in the secondary market: A disabled individual must be permitted to acquire tickets in the secondary ticket market under the same terms and conditions as other individuals who acquire tickets in the market.

• Ticket pricing: Accessible seating pricing cannot be higher than the price for other tickets in the same seating section for the same event or series of events.

5. Accessible Routes

• Tiered dining: With several exceptions, accessible routes must be provided to all tiered and outdoor dining areas in sports facilities.

• Press boxes: Guidelines provide limited exceptions for small press boxes that (1) are located in bleachers with entrances only on one level, or (2) are free-standing structures 12 feet or more above grade. Further, the exceptions apply only when the aggregate area of all press boxes does not exceed 500 square feet.

• Public entrances to new construction: Increases the percentage that must be ADA accessible from 50 percent to 60 percent.

• Stairs: Newly constructed stairs that are part of a means of egress must comply with the requirements for accessible stairs, including accessible treads, risers and handrails.

6. Parking Requirements

• The new regulations require an accessible route adjoining each access aisle in a lot to accessible entrances. In addition, one in six disabled parking spots must be van accessible. Further, mechanical access parking garages must now have an accessible passenger loading zone.

7. Accessible Bathrooms

• Where six or more toilet compartments and urinals are provided in a multi-user restroom, the restroom must have at least one ambulatory accessible compartment; men’s lavatories with only one urinal are no longer required to have an accessible urinal.

• Where multiple single-user toilet rooms are clustered at one location, only 50 percent are required to be accessible (not 100 percent).

• The new regulations also contain other technical changes, including changes regarding water closet location and grab bars, clearance, doors, toilet paper dispensers, etc.

8. Service Animals

• The new regulations define "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. Most other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals.

• According to DOJ, service miniature horses are an alterative to for people allergic to dogs, they live longer, and can be housebroken just like a dog. Although the miniature horse rule usually surprises people when they first learn about it, it went into effect on March 15, 2011 without much controversy.

9. Wheelchairs and Mobility Devices

• The new regulations draw distinctions between wheelchairs and "other power-driven mobility devices,” which include a range of devices not designed for individuals with mobility impairments, such as the Segway® PT, but which are often used by individuals with disabilities as their mobility device of choice.

• Specifically, 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.

10. Internet Reservations for Hotels and other Places of Lodging:

• Hotels, motels and other places of transient lodging permitting internet reservations for non-disabled guests must:

• (1) identify and describe the accessible features of each designated accessible guest room;

• (2) hold accessible guest rooms for people with disabilities until all other guest rooms of that type have been rented; and

• (3) ensure that a reserved accessible guest room is not inadvertently released to someone who did not reserve the accessible room.

11. New Requirements for Swimming Pools, Wading Pools, and Spas

• Applicable even to Previously Compliant Entities.

• The new standards require accessible means of entry and egress for swimming pools, wading pools, and spas. This aspect of the 2010 Standards applies to all covered entities, even if they previously complied with the 1991 Standards, and generally requires that virtually any swimming pool operated by a place of public accommodation must provide either a pool lift or sloped entry.

• Comparable requirements apply to most spas.

• The DOJ recently extended the compliance date for this new requirement to January 31, 2013; bills have been introduced in Congress to prohibit the DOJ from enforcing these requirements.

Commercial Facilities vs. Public Accommodations

• Contrary to popular belief, Title III of the Americans with Disabilities Act does not apply exclusively to public accommodations (businesses that provide goods and services to the general public).

• Commercial facilities (privately-owned, non-residential facilities whose operations affect commerce but that do not serve customers or clients, such as factories, warehouses, or corporate office buildings) are also subject to Title III.

Commercial Facilities Changes

• As of March 15 of this year, commercial facilities – just like public accommodations – must comply with the new construction and alterations regulations of the 2010 Standards. 2010 Standards for new construction must be met unless site conditions make compliance structurally impracticable — a rare exception.

• The commercial facility must also meet 2010 Standards accessibility requirements for: (1) any elements or spaces that it is altering, and (2) that are part of the path of travel to a primary function area that it will be altering.

• Exemplars of significant elements in commercial facilities to which the 2010 Standards apply are: accessible routes to the facility entrance, public entrances, doors, circulation paths in employee work areas, parking, elevators, restrooms, signage, and reach ranges.

Commercial Facilities (Con’t)

• Unlike public accommodations, the 2010 Standards do notrequire commercial facilities to engage in the removal of existing barriers or comply with any rules relating to the facility’s operations.

• While owners, operators, lessors, and lessees of public accommodations generally have an ongoing obligation to remove architectural barriers that exist (unless it is not readily achievable to do so) regardless of whether they had anything to do with the creation of the barriers, owners, operators, lessors, and lessees of commercial facilities do not have this obligation. Their obligations only arise in connection with new construction or alteration activities.

QUESTIONS?