The Department of Justice recently published its revised regulations for Title II and III of the Americans with Disabilities Act of 1990 referred to as ADA on September 15, 2010. Significant amendments are included in the 2010 ADA Standards for Accessible Design which affect Title II (28 CFR Part 35) and III (28 CFR Part 36) regulations.
In order to appreciate the developments particularly Title III of ADA, this study will discuss relevant provisions, laws and legal implications affecting the requirements and operations of Title III which applies to public accommodations, commercial facilities, and private entities offering certain examinations and courses.
A question was raised whether residential treatment centers or residential facilities particularly those operated by schools are covered by Article III of ADA. If so, how do we distinguish “residential treatment facility” from “transient facility” and what facility is essentially covered under Title III of ADA?
In relation to this, the study will also study relevant laws and regulations that govern the requirements, operations and use of residential facilities as well the government’s treatment of these facilities such as the Fair Housing Act and Americans with Disabilities Act Accessibility Guidelines (ADAAG).
The Americans with Disabilities Act of 1990
ADA was signed into law on July 26,1990 by President Bush. The law provides a comprehensive discussion on the rights of individuals with disabilities.The law has reached all sectors of the community in both private and government fields to address the needs of persons with disabilities and respect their rights for fair treatment, unnecessary discrimination, and provide equal services in school, transportation, housing, and telecommunications.
What are covered by ADA?
The law specifically covers public accommodations, commercial facilities, and private entities that offer certain examinations and courses related to educational and occupational certification. Public accommodation include establishments that offer services like restaurants, hotels, medical services, education, amusements and the like. Commercial facilities refer to non-residential facilities, offices, and industrial facilities whose operations involve commerce. Likewise, the law specifically exempts religious entities and churches or places of worship, private clubs that are not made available to non-members or the public as well as states and local governments.
For non-commercial facilities, it is necessary that the operation will affect commerce intended for non-residential use by any private entity including those facilities that are covered or expressly exempted under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601 – 3631). Also, it shall not include facilities for aircraft, railroad locomotives and other railroad cars.
For public accommodation facilities, the law must necessarily involve commerce and categorically belong to any of the twelve (12) major facilities such as: lodging, food or drink, places to held exhibitions or entertainments, places where public gathering is held, sales and rental establishments, service establishments, public transportation stations, places for public display or collection, recreational places, education environment, social service centers and places where people exercise or for recreational purposes. The service which do not fall with any of the categories mentioned above shall not be considered a facility under public accommodation.
Who are considered person with disabilities?
A person may be considered a person with disabilities under ADA if he suffers from a physical or mental impairment that substantially limit a person’s one or more major life activities, or he has a record of such impairment, or the person is regarded as having such an impairment. Major life activities include all functionalities that a person needs to enable to live a free and independent life without restrictions on movements and provide opportunity to meet socially with other people.
ADA in relation to Fair Housing Act (FHA)
ADA and FHA are considered in law independently from each other. A facility to be considered under ADA requires a totally different criteria from FHA. However, a facility may sometimes be considered a residential dwelling under FHA, but may likewise qualify as a facility under ADA when the facility or service falls within the 12 categories of ADA. To reconcile both categories, the law permits to qualify each facility separately according to its purpose and prevailing service requirements.
To illustrate, a private non-profit organization may provide a shelter service to homeless individuals. It may be for a short duration (one night stay) or for a longer period. The facility providing for a short stay service may be considered as a lodging place covered by title III of ADA since it caters to the public need for temporary shelter. Likewise, a company that provides both administrative and operational support offices, exclude the first from the operation of title III of ADA while the office where clients may directly transact business are covered by ADA. Only the facility that caters to the public may be considered a place for public accommodation.
Relevant to this, rail vehicles or any facility covered by the Fair Housing Act are not considered commercial facilities. These are expressly exempted from coverage. For example, the provision giving the owner-occupied rooming houses with living quarters for four or fewer families are exempt from the Fair Housing Act because it is not considered a commercial facility. For purposes of ADA, facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
The Fair Housing Act, as amended in 1988, is a law that prohibits housing discrimination to any person based on race, color, religion, sex, disability, familial status, and national origin. The law governs the acquisition of private housing, housing that receives support from the Federal government as well as the State and local government housing privilege. The law made it unlawful when a person deny a dwelling to a buyer or renter because of his disability, or because an individual is associated with a person with disability. The FHA requires the owners of housing facilities to provide reasonable exceptions in their policies and operations to give chance to people with disabilities to avail of housing opportunities with equal privileges. The Act further requires that newly constructed multifamily housing units (four or more units) built accordingly, to allow persons with disabilities to have free access in common areas like doors, kitchens and bathrooms and may freely roam places with the use of a wheelchair.
As earlier stated, title III of the ADA may apply to commercial and public facilities. The enumeration include inns, hotels, motels, and other places of lodging as public accommodations including dormitories, homeless shelters, nursing homes and timeshares. It also includes common areas that are for public use in multifamily dwellings and even convenience stores within the development area (28 CFR 36.104). However, common areas that are exclusively provided for the residents and their guests only will not be covered by the ADA.
Residential facilities against transient lodging facility
Recently, the 2010 Standards provide a definition of “residential dwelling unit” and modify the current definition of “transient lodging” under Section 106.5. A residential dwelling unit is defined as “a unit intended to be used as a residence that is primarily long-term in nature.” The definition exclude transient lodging, in-patient medical care, licensed long-term care, and detention or correctional facilities. In addition, the definition of “transient lodging” refers to a building or facility “containing one or more guest room(s) for sleeping that provides accommodations that are primarily short-term in nature.” Definitiely, “transient lodging” does not include residential dwelling units intended to be used as a residence.
Housing facility in the school environment
The housing requirements in schools range to cover all kinds of dwellings from traditional residence hall, dormitories, and apartment townhouse-style residences. While the FHA is covering these residential dwellings as far as its structural design is concerned, however, the law also requires compliance to ADA as far as its operations and availability to the public.
It has been observed that the prior Standards law (1991 Standards), failed to specifically mention dormitories as a form of transient lodging nor specifically address how ADA applies to dormitories or other types of residential housing provided in an educational setting. In its absence, the Department of Justice concluded that the benefits of applying the transient lodging standards outweighed the benefits of applying the residential facilities standards.
For this reason, in the Notice of Proposed Rulemaking (NPRM), the Department of Justice proposed a new section 35.151(f) that provided that residence halls or dormitories operated by or on behalf of places of education shall comply with the provisions of the proposed standards for transient lodging including sections 224 and 806 of the 2004 ADAAG. Section 35.151 (f) provide the guidelines required under transient lodging standards with some exceptions of facilities provided by or on behalf of a place of education that are leased on a year-round basis exclusive only to the graduate students or faculty, and do not contain any public use or common use areas available for educational programming. However, such housing facility must comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards.
Court interpretation over Titlle III of ADA in school environment
Regents v. Republic Franklin Ins, 458 F3d 159 (3rd Cir 2006)
In this case, the High Court had taken the position to consider all the floors (4 floors) Keil Hall of devastated Mercersburg, a private secondary school, which was engulfed by a fire to be covered by ADA. The District Court decision declared that ADA protects disabled persons and do not apply to the dormitory space on the second, third and fourth floors of Keil Hall because dormitory housing is not considered as “transient lodging.”
The High Court premised its decision in two respects: Firstly, the Court considered dormitories as “transient lodging” and Mercersburg is a “place of education,” therefore, the Court concluded that the dormitory floors of Keil Hall are public accommodations within the meaning of the ADA. Secondly, because the Endorsement requires the insurer to cover alterations to the undamaged portions of Keil Hall caused by enforcement of the ADA, Republic Franklin may be liable for certain expenses not directly caused by the fire.