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Americans with Disabilities Act: New Developments and their Impact on Clubs Club Managers Association of America World Conference and Club Business Expo.

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Presentation on theme: "Americans with Disabilities Act: New Developments and their Impact on Clubs Club Managers Association of America World Conference and Club Business Expo."— Presentation transcript:

1 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 1

2 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) 2

3 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 ADAs 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. 3

4 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. 4

5 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 5

6 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. 6

7 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) 7

8 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 8

9 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 (9 th Cir. 2000). 9

10 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 Tours] 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 10

11 So, what isnt 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. 11

12 So, what does it mean to benot 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 (9 th Cir. 2008). Courts have identified factors they will consider. 12

13 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 (3 rd 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? 13

14 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? 14

15 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 clubs 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? 15

16 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. 16

17 III. ADA REQUIREMENTS FOR CLUBS THAT ARE PUBLIC ACCOMMODATIONS A.Take steps to avoid discrimination against persons with disabilities in the clubs day-to-day activities. – Goal: Giving your members and guests with disabilities equal opportunities to enjoy the clubs 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 youre planning a golf tournament, dont impose a rule that all players must walk the course. 17

18 Taking steps to avoid discrimination against persons with disabilities in the clubs day-to-day activities. 2.Make reasonable modifications in your policies, practices and procedures when necessary to accommodate people with disabilities. – You dont 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. 18

19 Taking steps to avoid discrimination against persons with disabilities in the clubs 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 isnt feasible to install a door that automatically opens, train your employees to hold doors open for members and guests using wheelchairs. 19

20 ADA REQUIREMENTS FOR CLUBS THAT ARE PUBLIC ACCOMMODATIONS (contd.) 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 dont 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. 20

21 IV. NEW ADA REGULATIONS (Service animals, Segways and Swimming pools) A. Service Animals 21 Only dogs and miniature horses now.

22 Let service animals in. 22 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.

23 Miniature Horses 23 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.

24 ... 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 worknot just to be there. However, psychiatric service animals are allowed, for example to detect and prevent or interrupt impulsive or self-destructive behaviors. 24

25 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. 25

26 Questions you cant ask 1.Dont 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.Dont ask about the disability. A public accommodation may not ask about the nature or extent of a persons disability... 3.Dont 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. 26

27 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. 27

28 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. 28

29 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. 29

30 2. Other Power-Driven Mobility Devices A public accommodation shall make reasonable modifications in its polices, practices or procedures to permit use of other power- driven mobility devices unless doing so would violate legitimate safety requirements. 30 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...

31 Mobility Devices (contd) You may not ask any member or guest using a wheelchair or power-driven mobility device questions about the nature and extent of the individuals disability. You may ask for credible assurance that [an other power-driven mobility device] is required because of the persons 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. 31

32 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... 32

33 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 33

34 Swimming pools 34 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.

35 Questions? Robert W. Lannan Lannan Legal PLLC 888 16th Street, N.W., Suite 800 Washington, DC 20006 Tel: (202) 595-4606 35

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