Making Sense of the Difference in ADA Requirements for Commercial Facilities and Public Accommodations

Title III of the ADA speaks to requirements for both "commercial facilities" and "public accommodations."  The "new construction" and "alterations" standards apply equally to both.  But the "readily achievable" standard only applies to "public accommodations."  "Commercial facilities" are privately owned, non residential facilities that affect commerce, such as factories or warehouses or even some office buildings, that are not subject to the "readily achievable" standard, because they do not fall in one of the following 12 categories that define a "public accommodation:"

1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);

2) Establishments serving food or drink (e.g. , restaurants and bars);

3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);

4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);

5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);

6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);

8) Places of public display or collection (e.g. , museums, libraries, galleries);

9) Places of recreation (e.g. , parks, zoos, amusement parks);

10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);

11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and

12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

In short, while public accommodations are required to remove architectural barriers on an ongoing basis to the extent they can do so without much difficulty or expense, commercial facilities have no such obligation.  When newly constructed or altered, both must comply with ADA standards for accessibility.  However, only public accommodations have the ongoing obligation to remove barriers from existing facilities--commercial facilities that are not also public accommodations, do not.  Such existing commercial facilities may still be required to remove barriers as a reasonable accommodation to an employee with a disability pursuant to Title I of the ADA, but Title III places no ongoing obligation to comply with the "readily achievable" standard.  See relevant statutes and regulations below:

READILY ACHIEVABLE STANDARD:

"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the good 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)(emphasis added)

" For purposes of subsection (a), discrimination includes --

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a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable...."

42 U.S.C. § 12182(b)(iv)(emphasis added).

ALTERATIONS STANDARD:

"Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs."

28 C.F.R. § 36.402(a)(1)(emphasis added).

NEW CONSTRUCTION STANDARD:

"[D]iscrimination … includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

42 U.S.C. § 36.401(a).

ADA Requirements for Hotel and Cruise Ship Reservations

The 2010 amendments to the Americans with Disabilities Act specifically revised the process and obligations for a place of lodging to reserve accessible guest accommodations for individuals with disabilities, as follows:

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party -

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2)Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3)Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

See 28 CFR 36.302(e).

These regulations empower people with disabilities to require that they be able to make reservations for accessible guest rooms "by any means."  This would include via a website, and during the same hours and in the same manner as people who do not require accessible guest rooms.  You cannot be required to call to reserve your accessible room if able-bodied people can reserve a typical room without calling.

All means of making reservations must "identify and describe accessible features in the hotel and guest rooms" sufficient to permit someone with a disability to determine if a given hotel or room meets his or her accessibility needs.  Accessible rooms must be held for people with disabilities until all other guest rooms have been rented and the accessible room is the only remaining room of the requested type.

Most importantly, all means of making reservations must reserve the specific accessible guest room reserved for the reserving party and remove it from all reservations systems to ensure it is held for the reserving customer.

Next time you go online to reserve an accessible room--can you determine if it meets your needs from the information provided?  Is the room reserved actually blocked from all reservations systems such that it is provided to you upon your arrival?  If not, the ADA has been violated and so have your civil rights.

Per the exception in 28 CFR 36.302(e)(2), above, I recommend you make your reservation for accessible accommodations via the hotel where you plan to stay.  Simply put, third-party websites who have purchased blocks of rooms to resell them to the public are exempted from the requirement to reserve the specific room requested, remove it from all reservations systems and guarantee the specific room reserved is held for the reserving customer, as these third-party resellers neither own nor control the overall facility.

I have had success in applying these provisions to online reservations systems of two major cruise lines whose websites did not allow prospective guests with disabilities to assess whether the "accessible" guest quarters available met with their individual needs, nor did they assure that once a reservation was made for a specific accessible cabin, that such cabin was removed from all reservations systems and held for the reserving party.

Hotels and cruise lines have now had 7 years to comply since the effective date of these "new" regulations.  How would you say they are doing in this regard?

I hope this helps--safe travels!