New Developments under the Americans with Disabilities Act

Report
Americans with Disabilities Act:
New Developments and their Impact on Clubs
Club Managers Association of America
World Conference and Club Business Expo
February 28, 2012
New Orleans
Robert W. Lannan
Lannan Legal PLLC
888 16th Street, N.W., Suite 800
Washington, DC 20006
Tel: (202) 595-4606
[email protected]
www.lannanlegal.com
1
Preview of Presentation
I. Overview of the ADA
II. When is a private club a “public
accommodation” subject to the ADA?
III. Requirements of clubs that are public
accommodations under the ADA
IV. 2010 Justice Department ADA Regulations
(“Service animals, Segways and Swimming pools”)
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I. AMERICANS WITH DISABILITIES ACT
• A “comprehensive civil rights statute” that prohibits
discrimination on the basis of disability in
employment, state and local government
programs, public accommodations, commercial
facilities, transportation and telecommunications.
• Congress included among the ADA’s objectives:
– “to provide a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities” and
– “to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals
with disabilities.”
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Americans with Disabilities Act
• Enacted and signed into law by President George
H.W. Bush in 1990.
• Administered by the Civil Rights Division of the
U.S. Department of Justice
– DOJ issues detailed regulations.
– DOJ brings enforcement actions.
• Private causes of action
– Private plaintiffs can sue for injunctive relief but not
damages.
– However, private plaintiffs can recover attorneys’ fees.
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Recent Developments under the ADA
• Coverage broadened by the ADA Amendments
Act of 2008
• Justice Department issued new, expansive
regulations, some of which took effect last
March and others of which take effect next
month
– These regulations were in the works since 2004.
• Justice Department more aggressively
pursuing enforcement actions
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People with Disabilities
• Disability: “a physical or mental impairment that
substantially limits one or more major life activities”
of a person.
• Major life activities include, but are not limited to,
• Caring for oneself
• Performing manual
tasks
• Seeing
• Hearing
• Eating
• Sleeping
•
•
•
•
•
•
•
Walking
Standing
Lifting
Bending
Speaking
Breathing
Learning
•
•
•
•
•
Reading
Concentrating
Thinking
Communicating
Working
• 54 million Americans have disabilities.
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Title III of the ADA
“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 by any
person who owns, leases (or leases to), or
operates a place of public accommodation.”
42 U.S.C. § 12182(a)
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II. PLACES OF PUBLIC ACCOMMODATION
The ADA lists 12 categories of “private entities that
are considered public accommodations,” including:
• “a restaurant, bar, or other establishment serving
food or drink”
• “a gymnasium, health spa, bowling alley, golf
course, or other place of exercise or recreation”
• “an . . . other place of public gathering”
• “a[n] . . . other service establishment”
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Many facilities that are open only to specific invitees
are classified as “public accommodations.”
• These have included:
– “a facility that specializes in hosting wedding receptions
and private parties which may be open only to invitees
of the bride and groom”
– “a convention center in which a political convention is
held, attendance of which is strictly controlled”
– “a gymnasium or golf course open only to authorized
members and their guests”
– Private schools, including selective universities
• “[T]he fact that users of a facility are highly selective
does not mean that the facility cannot be a public
accommodation.” 204 F.3d 994, 998 (9th Cir. 2000).
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PGA Tour, Inc. v. Casey Martin
U.S. Supreme Court, 2001
“It seems apparent, from both the general rule and the comprehensive
definition of ‘public accommodation,’ that [PGA Tour’s] golf tours and their
qualifying rounds fit comfortably within the coverage of Title III [of the
ADA], and Martin [a golfer with a disability] within its protection.”
532 U.S. 661, 677
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So, what isn’t a “public accommodation”?
• Exemption for Private Clubs: “The provision of [ADA
title III] shall not apply to private clubs . . .
Exempted from coverage under title II of the Civil
Rights Act of 1964 . . .”
• Title II of the Civil Rights Act of 1964 exempts “a
private club or other establishment not in fact open
to the public, except to the extent that the facilities
of such establishment are made available to
customers or patrons of” a public accommodation.
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So, what does it mean to be
“not in fact open to the public”?
• There is no bright-line test.
• “The determination of whether an
organization is a private club is necessarily a
factually intensive inquiry examining whether
the organization is open to the public at
large.” C.R. v. Boy Scouts of America, Troop 223, 280 Fed. Appx. 669,
671 (9th Cir. 2008).
• Courts have identified factors they will
consider.
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Factors for determining whether a club is
“not open to the public”
1. Is the membership process genuinely selective?
a. This is the most important factor. See Stanley v. National Capital Area
Council of the Boy Scouts of America (D. Md. 2011)
b. Are there objective criteria or standards for admission?
c. “[A] formal procedure requiring nothing more than
membership approval is insufficient to show genuine
selectivity.” United States v. Lansdowne Swim Club, 894 F.2d 83 (3rd Cir. 1990).
d. How much information do membership committees
consider about prospective members?
•
Investigation of financial condition, credit history, employment
status, educational background, club affiliations or criminal record?
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Factors for determining whether a club
is “not open to the public”
2. Do the origins of the club suggest that it was
intended to serve as a “community club” for families
in the neighborhood, and not as a private club?
3. Does the club, or has the club received any public
funding?
4. Is the facility used by non-members?
– “However, occasional use of an exempt . . . private facility by
the general public is not sufficient to convert that facility into
a public accommodation under the ADA.” Jankey v. Twentieth Century
Fox Film Corp., 14 F.Supp.2d 1174, 1178 (C.D. Calif. 1998).
5. Does the club advertise?
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Factors for determining whether a club
is “not open to the public”
6. Is the club a for-profit or a non-profit organization?
7. How much control do members have over the club’s
operations?
8. How substantial are the membership fees?
– The more substantial, the more likely it is private.
9. What is the stated purpose of the club?
– Stanley v. National Capital Area Council of the Boy Scouts of
America (D. Md. 2011) (Boy Scout oath)
10. Does the club observe organizational formalities?
–
e.g. bylaws, meetings and membership cards
11. Was the club created specifically to avoid the
compliance with civil rights laws?
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Exception to Exemption
• A private club loses its exemption to the
extent that it opens some portion of its
facilities to the general public.
• For example, if the club rents a building to a
day care center that is also open to the public,
that building is a public accommodation.
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III. ADA REQUIREMENTS FOR CLUBS THAT
ARE PUBLIC ACCOMMODATIONS
A. Take steps to avoid discrimination against persons
with disabilities in the club’s day-to-day activities.
– Goal: Giving your members and guests with disabilities
equal opportunities to enjoy the club’s resources and
participate in its activities in an integrated setting with
other members.
1. Do not impose eligibility criteria that screen out people
with disabilities.
•
E.g., if you’re planning a golf tournament, don’t impose a
rule that all players must walk the course.
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Taking steps to avoid discrimination against persons
with disabilities in the club’s day-to-day activities.
2. Make reasonable modifications in your
policies, practices and procedures when
necessary to accommodate people with
disabilities.
– You don’t have to make Braille menus available.
However an employee on-site should be willing
and able to read a menu to a blind member or
guest if asked. Having a large print menu on hand
is a good idea.
– Accommodate service animals.
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Taking steps to avoid discrimination against persons
with disabilities in the club’s day-to-day activities.
3. Take steps to ensure that no person with a disability is
excluded, denied service, segregated or otherwise treated
differently than other members and guests.
4. If “readily achievable” (basically, not too difficult or
expensive), remove any architectural or communications
barriers in existing facilities.
–
E.g., installing wheelchair ramps, curb cuts and flashing alarm
systems
5. If removal of such a barrier is not “readily achievable,”
make the resource available through another readily
achievable method.
– E.g., if it isn’t feasible to install a door that automatically opens,
train your employees to hold doors open for members and
guests using wheelchairs.
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ADA REQUIREMENTS FOR CLUBS THAT
ARE PUBLIC ACCOMMODATIONS (cont’d.)
B. Requirements for New Construction and Alterations
of Existing Buildings
1. Comply with the ADA Accessibility Guidelines for Buildings
and Facilities (ADAAG).
•
•
•
These are very specific, detailed requirements.
Your architect should know them or hire a consultant who does.
Municipal building codes usually don’t incorporate ADAAG, and
approval of a municipal inspector does not ensure compliance.
2. Buildings that opened before July 26, 1990 are
grandfathered until “altered.” Any part of a building
“altered” afterward must, to the maximum extent
achievable, be readily accessible to persons with
disabilities.
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IV. NEW ADA REGULATIONS
(“Service animals, Segways and Swimming pools”)
A. Service Animals
Only dogs and miniature horses now.
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Let service animals in.
A public accommodation
must “modify policies,
practices and procedures to
permit the use of a service
animal by an individual with a
disability.”
Dogs given the strongest protection.
• No limitations on size or weight.
• No limitations on breeds.
• They must be trained, but no certification is required.
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Miniature Horses
• Perform many of the
same tasks as dogs
• Can be housebroken
• Live longer than dogs
• A club has greater discretion to determine “whether reasonable
modifications in policies, practices or procedures can be made to
allow a miniature horse into a specific facility.”
• However, the presumption is that these modifications will be made
“to permit the use of a miniature horse . . . if the miniature horse has
been individually trained to do work or perform tasks for the benefit
of the individual with a disability.”
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“ . . . trained to do work or perform tasks . . .”
• ADA does not accommodate “emotional support
animals,” “comfort animals” or “therapy animals.”
• A service animal must be trained to do work—not
just to be there.
• However, “psychiatric service animals” are allowed,
for example to detect and prevent or interrupt
impulsive or self-destructive behaviors.
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Two questions you can ask:
1. “A public accommodation may ask if the
animal is required because of a disability . . .”
2. “A public accommodation may ask . . . what
work or task the animal has been trained to
perform.”
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Questions you can’t ask
1. Don’t ask a question if the answer is obvious. “Generally, a
public accommodation may not make . . . inquiries about a
service animal when it is readily apparent that an animal is
trained to do work or perform tasks for an individual with a
disability (e.g., [a] dog is observed guiding an individual who
is blind . . .).”
2. Don’t ask about the disability. “A public accommodation
may not ask about the nature or extent of a person’s
disability . . .”
3. Don’t “card” the animal. “A public accommodation shall not
require documentation, such as proof that the animal has
been certified, trained, or licensed as a service animal.
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Other guidance on service animals
• Service animals must be under the control of their
handlers.
– For dogs, it is presumed that control requires “a harness,
leash, or other tether.”
– However, exceptions allow control by “voice control, signals,
or other effective means” if a physical restraint is not
practicable.
• A club may exclude an animal that is out of control or
not housebroken. If it does so, it must offer the person
with a disability the opportunity to obtain services
without having the animal on the premises.
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Other guidance on service animals
• A club is not responsible for the care or supervision of
a service animal. (For example, if the animal needs to
go outside, the club is not responsible for taking it
outside.)
• The member or guest must be permitted to bring the
animal wherever other members and guests can go.
• The club may not impose a surcharge for the animal.
However, it may charge for any damage caused the
animal.
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B. Mobility Devices
1. Wheelchairs and other basic devices
A public accommodation “shall permit” people to
use wheelchairs (whether manually-operated or
power-driven), walkers, crutches, canes, braces or
similar devices in any areas open to pedestrian use.
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2. “Other Power-Driven Mobility Devices”
• These are golf carts, Segways and any other
“mobility device designed to operate in
areas without defined pedestrian routes,
but that is not a wheelchair . . .”
• A public accommodation “shall make reasonable modifications in its
polices, practices or procedures” to permit use of “other powerdriven mobility devices” unless doing so would violate “legitimate
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safety requirements.”
Mobility Devices (cont’d)
• You may not ask any member or guest using a
wheelchair or power-driven mobility device questions
about “the nature and extent of the individual’s
disability.”
• You may ask for “credible assurance that [an other
power-driven mobility device] is required because of
the person’s disability.” If you do, you must accept as
conclusive either:
–
–
presentation of a “valid, State-issued disability parking
placard or card, or state issued proof of disability” or
“a verbal representation, not contradicted by an
observable fact, that the other power-driven mobility
device is being used for a mobility disability.”
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C. Removal of Barriers
• “2010 ADA Standards for Accessible Design” =
2004 ADAAG standard plus certain new
regulations.
• Subject to certain exceptions, all “elements”
of existing facilities modified before March 12,
2012 are given “safe harbor” (grandfathered)
if they meet the 1991 ADAAG standards.
• But the exceptions to this safe harbor are
numerous . . .
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Exceptions to the Safe Harbor
(To the extent readily achievable, these facilities must be modified to comply
with the 2010 ADA Standards for Accessible Design by March 12, 2012.)
• Residential facilities and dwelling
units
• Play areas
• Amusement rides
• Saunas and steam rooms
• Recreational boating facilities
• Swimming pools, wading pools and
spas
• Exercise machines and equipment
• Shooting facilities with firing
positions
• Fishing piers and platforms
• Team or player seating
• Golf facilities
• Accessible route to bowling lanes
• Miniature golf facilities
• Accessible route in court sports
facilities
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Swimming pools
New Pools
Large pools (> linear ft. of pool wall) “must
have two accessible means of entry, with at
least one being a pool lift or sloped entry.”
Smaller pools “are only required to have one
accessible means of entry, provided that it is
either a pool lift or a sloped entry.”
Existing Pools
“For an existing pool, removing barriers may
involve installation of a fixed pool lift with
independent operation by the user or other
accessible means of entry that complies with
the 2010 Standards to the extent that it is
readily achievable to do so. If installation of a
fixed lift is not readily achievable, the public
accommodation may consider alternatives
such as use of a portable pool lift that
complies with the 2010 standards.”
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Questions?
Robert W. Lannan
Lannan Legal PLLC
888 16th Street, N.W., Suite 800
Washington, DC 20006
Tel: (202) 595-4606
[email protected]
www.lannanlegal.com
35

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