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Can your business accommodate a miniature horse as a service animal or a golf cart as a mobility device used by disabled customers? Get ready, because you may have to figure out how in the next six months.

After two years of suspense, on the evening of Monday, July 26, the Justice Department published on its website the final regulations implementing the new accessibility requirements of Title III of the Americans with Disabilities Act (“ADA”). Some of the highlights of the new regulations include:

Service Animals

• The definition of service animal has been limited to only dogs trained to do work or perform tasks for a disabled individual. Emotional support or comfort animals are not service animals (however, comfort animals may still be protected under the Fair Housing Act.)

• Although snakes, ferrets, monkeys and all other wild and domestic animals are excluded, a strange exception requires accommodation of miniature horses, which are housebroken and under the owner’s control, after consideration of its size, type and weight and whether the miniature horse’s presence otherwise compromises legitimate safety requirements, poses a direct threat or fundamentally alters the entity’s programs, services or activities.

• Businesses are allowed to make two inquiries regarding the use of a dog or miniature horse: (1) to confirm that the animal is required because of a disability (but not the type or nature of the disability) and (2) to confirm what work or task the animal has been trained to perform(documentation of training cannot be required).

Hotels and Places of Lodging

• Places of lodging must implement reservation procedures to (1) ensure that disabled individuals can make reservations for accessible guest rooms during the same hours and in the same manner as nondisabled individuals, (2) ensure accessible guest rooms are held back from general rental until all other guest rooms of that type have been rented, (3) remove reserved accessible rooms from all reservation systems, and (4) guarantee that the specific accessible guest room reserved through its service is held for the reserving customer regardless of whether a specific room is held for nondisabled guests. Excepted from the holdback requirement are individual guest rooms or other units which are not owned by or substantially controlled by the entity that owns, leases or operates the overall facility (timeshares and condo-hotels).

• Places of lodging must identify and describe accessible features in the common areas and guest rooms offered through its reservation service in enough detail to reasonably permit individuals with disabilities to determine independently whether it meets his or her accessibility needs. Newer places of lodging built in compliance with the 1991 standards may only need to state that the facility is accessible and describe generally the types of accessible rooms available by size, number of beds, type of bathroom (such as roll-in showers) and communication features. For older facilities that are not technically or completely in compliance, such disclosures may have to include information about accessible entrances and paths of travel to guest check-in and other essential services, such as restaurants, as well as disclosure of information about accessible features in units which do not meet the 1991 standards, such as width of doors.

• The real-time ability to monitor and control the reservation of a scarce resource such as different types of accessible rooms through multiple outlet sources will create substantial industry challenges. Luckily, these requirements are not effective until 18 months after publication in the federal register.

Wheelchairs and Other Mobility Devices

• In addition to permitting use of wheelchairs and walkers, crutches, canes, braces or similar devices, public accommodations must make reasonable modifications in policies, practices or procedures for the use of other power driven mobility devices including segways, golf carts or other power, battery or fuel driven mobility device unless the public accommodation can demonstrate that the class of mobility device cannot be operated in accordance with legitimate safety requirements or is a direct threat or would fundamentally alter its programs, services or activities. Factors to be considered include: (1) the type, size, weight, dimensions and speed of the device; (2) the facility’s volume of pedestrian traffic (which may vary at different times of the day, week, month or year); (3) the facility’s design and operation characteristics; (4) availability of storage for the device, if requested by the user; (5) legitimate safety requirements which might permit the safe operation of the device, such as speed limits; and (6) whether such use 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.

• A public accommodation may require a person using “another power driven mobility device” (but not a wheelchair or manually powered mobility device) to provide assurances that the mobility device is required because of the person’s disability based on the presentation of a state issued proof of disability (which must be accepted) or a verbal representation not contradicted by observable fact that the mobility device is used for a mobility disability.

• Legitimate safety requirements, such as speed limits, may be imposed or even be a basis to deny such use, but such safety requirements must be based on actual risks and not on mere speculation, stereotypes or generalizations about individuals with disabilities.

Ticket Sales

• A public entity that sells tickets for events must implement procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating during the same periods of ticket sales and through the same methods of distribution with the same types and numbers of ticketing sales outlets and upon the same terms and conditions (including all price categories) as tickets sold for non-accessible seating.

• Ticket sellers must be able to inform purchasers of the locations of all unsold available accessible seating for such event, identify and describe the features of available accessible seating in enough detail to reasonably permit a disabled individual to assess independently whether a given accessible seating location meets his or her needs and provide informational materials such as seating maps, brochures, pricing charts or other information that identify accessible seating and information with the same text or visual representations as information provided on other seats.

• For each accessible seating space purchased by a disabled individual, up to three (3) additional tickets in the same row that are contiguous with the wheelchair space or as close to the accessible seating as possible, must be sold upon request if available and if other purchasers can buy four (4) tickets.

• Groups including individuals with disabilities must be placed in an area with accessible seating so that the group can sit together to the extent possible. If the group must be divided, individuals who use wheelchairs cannot be isolated from their entire group.

• Tickets for accessible seating may not be released for sale to the general public until all non-accessible tickets, including luxury boxes, club boxes or suites in the same area or at the same price have been sold.

• If accessible seating season tickets are sold to non-disabled individuals, the seller must institute procedures to prevent the automatic reassignment of the accessible seating to such non-disabled person for future seasons.

• Disabled individuals must be permitted to transfer accessible seating tickets to third parties on the same terms and conditions as other non-disabled ticket holders holding the same type of ticket, whether for a single event or a series of events, and disabled individuals acquiring tickets in the secondary market must be allowed to use those tickets on the same terms and conditions as other individuals who hold a ticket acquired in a secondary market and must be allowed to exchange those tickets for accessible seating in a comparable location, if available.

• Proof of disability, such as a doctor’s note, cannot be required before selling accessible seating tickets. However, the person purchasing the tickets can be asked if the purchase is on behalf of a disabled individual or if the individual purchasing has a mobility disability or a disability that requires accessible features. For series of events or season tickets, individuals purchasing accessible seating can be required to attest in writing that the accessible seating is for a person who has a disability that requires the use of accessible seating or features.

• As with accessible room reservations in the lodging industry, monitoring and managing accessible ticket sales through multiple outlets and methods of distribution in real time will be challenging and, unlike the lodging industry requirements, these policies must be implemented six months after publication in the federal register.

Miscellaneous

• There are new accessibility standards for many facilities and elements not previously covered by the 1991 standards, including amusement parks, children’s play areas wherever located, marinas, gyms and exercise equipment, dressing and fitting rooms, locker rooms, golf courses, swimming pools, spas, team or player seating areas, fishing piers, playgrounds, shooting facilities, tennis courts, bowling lanes and saunas.

• New standards cover a variety of elements, such as transient lodging room dispersal, accessible seating dispersal in assembly areas and movie theaters, sales and service counter and reach ranges.

• There is no safe harbor for small businesses.

• The regulations do not create any new requirements regarding captioning at sports venues.

Safe Harbors

• Elements of an existing facility that comply with the technical and scoping requirements in the 1991 standards are not required to be modified to comply with the 2010 standards except at the time of an alteration. New construction, barrier removal and alterations between now and the 18-month compliance date can be based on either the 1991 or 2010 standards.

• There is no safe harbor for readily achievable barrier removal which does not meet the standards but which was performed in settlement of a dispute even if approved by a court.

• The safe harbor does not apply to elements of existing facilities that were not previously covered by the standards (elements for which there were neither technical or scoping specifications in the 1991 standards) and these elements, such as recreational amenities, must be modified to the extent readily achievable to comply with the 2010 standards. Thus, barrier removal obligations may require modifications now to all these elements.

• The effective date for the new regulations is six months after publication in the federal register but compliance with the 2010 standards for new construction, alterations and barrier removal and the new room reservation system requirements for places of lodging do not become effective until 18 months after publication.

Conclusion

Since many of the new requirements are effective in about six months, businesses should begin now to evaluate necessary changes in current policies for compliance. Some of the most complex requirements are delayed for 18 months, but consideration of long-range action steps for barrier removal and other compliance obligations should start now.

If you have questions about these regulations or how they may impact your business, please contact Rosemary O’Shea, Joyce Ackerbaum Cox, Brian C. Blair or your regular Baker Hostetler contact.

Authorship Credit: Rosemary O’Shea, Joyce Ackerbaum Cox and Brian C. Blair

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